624: Permit Hearing Procedures
(Statutory authority: Environmental Conservation Law, §70-0107 and State Administrative Procedure Act, Article 3)
- 624.1 Applicability
- 624.2 Definitions
- 624.3 Notice of hearing
- 624.4 Legislative hearing and issues conference
- 624.5 Hearing participation
- 624.6 General rules of practice
- 624.7 Discovery
- 624.8 Conduct of the adjudicatory hearing
- 624.9 Evidence, burden of proof and standard of proof
- 624.10 Ex parte rule
- 624.11 Payment of hearing costs
- 624.12 Record of the hearing
- 624.13 Final decision
Note: This Part provides a detailed explanation of the public hearing process which is sometimes necessary to make a determination on permit applications submitted to the department, and on which agreement among parties involved cannot be reached otherwise. The principal function of the hearing is to resolve disputed issues of fact. It is the policy of the department to ensure that the public hearings it conducts provide a fair and efficient mechanism for the development of a factual record for the decision on a permit and, to that end, that all statements and testimony be relevant and directed toward achieving that goal. The process described in the following text may involve a legislative hearing session on a draft environmental impact statement, an adjudicatory hearing session with sworn testimony and cross-examination, formal filing of documents, and expenses to the applicant for a hearing room, stenographic services and public notice. This Part also contains provisions for subpoenas, stipulations, conferences, standards and evidence, and exchange of information by parties.
(a) This Part is applicable to hearings conducted by the department arising out of the following circumstances and supersedes any inconsistent regulations except to the extent explicitly noted.
(1) a determination by the department staff to hold an adjudicatory hearing pursuant to section 621.8(b) of this Title (on identification by department staff of substantive and significant issues);
(2) a request made by an applicant in conformance with the provisions of section 621.10(a)(1) and (2) of this Title (based on department staff's denial of permit or attachment of significant conditions);
(3) a determination made by department staff to hold an adjudicatory hearing pursuant to 621.15(f) of this Title (conceptual review);
(4) a request made by an applicant in conformance with the provisions of section 621.11(g) of this Title (based on department staff's denial or conditioning of a permit in response to an application to renew or modify);
(5) a request made by a permittee in conformance with the provisions of section 621.13(d) of this Title (based on department staff's proposed modification, suspension or revocation of a permit); except, where the basis for modification, suspension or revocation is founded on matters which, in whole or in substantial part, constitute a violation of the ECL, its implementing regulations, an order, permit, license or other entitlement issued by the department. In such cases the provisions of Part 622 of this Title govern;
(6) any circumstance comparable to those set forth in paragraph (1), (2), (3), (4) or (5) of this subdivision which arises out of permits, licenses or other entitlements that are not subject to ECL article 70 or Part 621 of this Title. The circumstances where this Part applies include, but are not limited to, permits for aquatic pesticide applications, the registration of pesticides, oil and gas well spacing variances, oil facility certifications and water supply rate disputes.
(b) The provisions of this Part do not apply to the conduct of legislative hearings except those that are included in a notice of hearing issued pursuant to section 624.3 of this Part.
(c) The provisions of this Part do not apply to the determination of disputed environmental regulatory program fees and penalties that are assessed pursuant to ECL article 72.
(d) The provisions of this Part apply to those proceedings in which the determination to hold an adjudicatory hearing was made on or after the effective date [January 9, 1994] of these regulations.
Whenever used, in this Part, unless otherwise expressly stated, the following terms will have the meanings indicated below. The definitions of this section are not intended to change any statutory or common law meaning of these terms, but are merely plain language explanations of legal terms.
(a) Adjudicatory hearing means a hearing, held pursuant to ECL section 70-0119 or SAPA article 3, where parties may present evidence on issues of fact, and argument on issues of law and fact prior to the commissioner's rendering of a decision on the merits, but does not include legislative hearings.
(b) Administrative law judge or (ALJ) means the commissioner's representative who conducts the hearing.
(c) Amicus status means a person who is not otherwise eligible for party status but who is allowed to introduce written argument upon one or more specific issues.
(d) Applicant means the person who has applied for one or more permits from the department or the modification or renewal of such permit(s). In the case of a water supply rate dispute, the petitioning party shall be the applicant.
(e) Argument means opinions or viewpoints, as distinguished from evidence.
(f) Commissioner means the Commissioner of the Department of Environmental Conservation or the commissioner's designee.
(g) CPLR means the New York State Civil Practice Laws and Rules.
(h) DEIS means the draft environmental impact statement prepared in response to the requirements of article 8 of the ECL.
(i) Delegated permit (as further defined under Part 621 of this Title) means a permit issued by the department which substitutes for a comparable permit required by Federal law and is recognized by the Federal agency responsible for administering the Federal program.
(j) Department means the Department of Environmental Conservation of the State of New York.
(k) Department staff means those department personnel participating in the hearing, but does not include the commissioner, any personnel of the Office of Hearings, the ALJ or those advising them.
(l) Discovery means the disclosure of facts, titles, documents, or other things which are in the exclusive knowledge or possession of a party and which are necessary to the person requesting the discovery as a part of the requester's case.
(m) Draft permit means a document prepared by department staff which contains terms and conditions staff find are adequate to meet all legal requirements associated with such a permit, but is subject to modification as a result of public comments or an adjudicatory hearing.
(n) ECL means the New York State Environmental Conservation Law.
(o) ENB (Environmental Notice Bulletin) means the publication of the department published pursuant to section 3-0306 of the ECL, and accessible on the department's internet web site at http://www.dec.ny.gov/.
(p) Evidence means sworn testimony of a witness, physical objects, documents or records or photographs representative of facts which have been admitted into the record by the ALJ.
(q) FEIS means the final environmental impact statement prepared pursuant to the requirements of article 8 of the ECL.
(r) Hearsay means a statement, other than one made by a witness testifying at the hearing, offered into evidence to prove the truth of the matter asserted.
(s) Interrogatories means written questions regarding the case which are served by a party on an adversarial party, which the adversary must then answer in writing and under oath.
(t) Legislative hearing means the portion of the hearing process during which unsworn statements are received from the public and the parties.
(u) Motion means a request for a ruling or an order.
(v) Office of Hearings means the office within the department principally responsible for conducting adjudicatory hearings.
(w) Party means any person granted full party status or amicus status in the adjudicatory portion of the hearing according to the procedures and standards set forth in section 624.5 of this Part but does not include the ALJ, the Office of Hearings, or the commissioner.
(x) Permit means any permit, certificate, license or other form of department approval, other than an enforcement order, issued in connection with any regulatory program administered by the department.
(y) Person means any individual, public or private corporation, bistate authority, political subdivision, government agency, department or bureau of the State, municipality, industry copartnership, association, firm, trust, estate or any legal entity whatsoever.
(z) Potential party means any person who has filed a petition pursuant to section 624.5 of this Part whose petition has not received either final denial or acceptance.
(aa) Project means the physical activity or undertaking for which one or more permits are required from the department.
(bb) Protective order means an order denying, limiting, conditioning or regulating the use of material requested through discovery.
(cc) Relevant means tending to support or refute the existence of any fact that is of consequence or material to the commissioner's decision on a permit.
(dd) Report means the ALJ's summary of the hearing record including findings of fact and conclusions.
(ee) SAPA means the New York State Administrative Procedure Act.
(ff) SEQRA means the New York State Environmental Quality Review Act, article 8 of the ECL.
(gg) Service means the delivery of a document to a party or potential party by authorized means or the filing of a document with the ALJ, the Office of Hearings or the commissioner.
(hh) Statement of intent to deny means a document prepared by staff which identifies the reasons why the permit(s) for the project may not be issued as proposed or conditionally.
(ii) Stipulation means an agreement between two or more parties to a hearing, and entered into the hearing record, concerning one or more issues of fact or law which are the subject of the hearing.
(jj) Subpoena means a legal document that requires a person to appear at a hearing and testify and/or bring documents or physical objects.
(kk) UPA means the New York State Uniform Procedures Act, article 70 of the ECL.
§624.3 Notice of hearing
(a) When notice is required. Unless otherwise provided by statute or regulation, the Office of Hearings must publish notice of the hearing in the ENB, and provide notice to the applicant and to persons who have made written request to participate. The applicant must provide for and bear the cost of publication of the notice in a newspaper having general circulation in the area within which the proposed project is located. The notices in the ENB and the newspaper must be published at least once and not less than 21 calendar days prior to the hearing date. In the case of applications involving State Pollutant Discharge Elimination System (SPDES) permits, revisions to the State implementation plan, federally delegated air permits, and Hazardous Waste Management Facility (HWMF) permits, and Remedial Action Plans (RAPs), the notice must be published at least 30 days prior to the hearing date. In addition, public notice by means of radio is required for hearings on all HWMF permits or RAP applications. These requirements are minimums and the ALJ shall direct the applicant to provide additional notice or to provide the notice further in advance of the hearing where the ALJ finds it necessary to do so in order to adequately inform the potentially affected public about the hearing. Where the ALJ finds that a large segment of the potentially affected public has a principal language other than English, he or she shall direct the publication of the notice in a foreign language newspaper(s) serving such people. Nothing herein shall authorize the ALJ to delay the commencement of the hearing beyond the deadlines established in UPA without the applicant's consent.
(b) Required contents of notice. The notice must be in the form specified by the Office of Hearings and must contain the following information:
(1) the date of issuance of the notice of hearing and the date of the notice of complete application.
(2) the date, time, location and purpose of the hearing and any pre-hearing conference, if scheduled. The location must be in the town, village or city in which the project is located, as reasonably near the project site as practicable, depending upon the availability of suitable facilities. However, another location may be selected based on the convenience of parties and witnesses at the discretion of the ALJ;
(3) the name and address of the applicant or permittee;
(4) the permits, approvals or action sought together with citations to applicable statutes and regulations;
(5) a description of the project;
(6) the accessibility and location for review, and a list of the available application materials, including, if available at the time of issuance of the notice of hearing, the staff's draft permit or statement of intent to deny;
(7) the status of the action under SEQRA and, where the department is lead agency pursuant to SEQRA and Part 617 of this Title and a DEIS has been prepared, an indication that comments on the DEIS may be received at the legislative hearing and of the provisions for their review;
(8) instructions for filing a petition for party status (see generally section 624.5 of this Part); and
(9) other notices required pursuant to any delegated permit program.
(c) Optional contents. The notice may also specify the issues of concern to the department and the public.
(d) Service on specific persons. Not less than 21 calendar days prior to the hearing date, individual copies of the notice must be sent to the chief executive officer of any municipality in which the project is located and such other persons as the department deems to have an interest in the application. In the case of applications for delegated permits, as defined by section 621.2(g) of this Title, notice of the type specified in this section must be sent to those persons specified in section 621.7(a) of this Title not less than 30 calendar days prior to the hearing date. The ALJ shall direct the applicant to provide notice further in advance of the hearing to those persons specified in this subdivision where the ALJ finds it necessary to do so in order to adequately inform them about the hearing. Nothing herein shall authorize the ALJ to delay the commencement of the hearing beyond the deadlines established in UPA without the applicant's consent.
§624.4 Legislative hearing and issues conference
(a) Legislative hearing.
(1) The ALJ will hear and receive the unsworn statements of parties and non-parties relating to the permit applications. A stenographic transcript of such statements will be made but will not be part of the record of the proceeding, as defined by section 624.12 of this Part (except as described in paragraph  of this subdivision or as otherwise admitted into evidence).
(2) The ALJ may require that lengthy statements be submitted in writing and summarized for oral presentation.
(3) Whenever a DEIS accompanies the application and the department is the lead agency as defined in Part 617 of this Title, all statements made at the legislative hearing will constitute comments on the DEIS and all substantive comments must be addressed pursuant to the procedures set forth in section 617.14 of this Title.
(4) The statements made at the legislative hearing do not constitute evidence but may be used by the ALJ as a basis to inquire further of the parties and potential parties at the issues conference.
(b) Issues conference.
(1) Following the legislative hearing, the ALJ will schedule an issues conference (if one was not scheduled in the hearing notice) which will be held in advance of the adjudicatory hearing. At the ALJ's discretion, the issues conference may be reconvened at any time to consider issues based on new information upon a showing that such information was not reasonably available at the time of the issues conference. Upon a demonstration that the public review period for the application prior to the issues conference was insufficient to allow prospective parties to adequately prepare for the issues conference, the ALJ shall adjourn the issues conference, extend the time for written submittals or make some other fair and equitable provision to protect the rights of the prospective parties.
(2) The purpose of the issues conference is:
(i) to hear argument on whether party status should be granted to any petitioner;
(ii) to narrow or resolve disputed issues of fact without resort to taking testimony;
(iii) to hear argument on whether disputed issues of fact that are not resolved meet the standards for adjudicable issues set forth in subdivision (c) of this section;
(iv) to determine whether legal issues exist whose resolution is not dependent on facts that are in substantial dispute and, if so, to hear argument on the merits of those issues; and
(v) to decide any pending motions.
(3) The ALJ will preside over the issues conference and the participants will be department staff, the applicant and any person who has filed a petition for party status pursuant to section 624.5 of this Part.
(4) The ALJ may require the submission of written argument to supplement the record of the issues conference.
(5) Upon the completion of the issues conference or as soon as practicable thereafter, but in no event later than 30 days after the issues conference or the receipt of written submissions thereafter, the ALJ will:
(i) determine which persons will be granted party status;
(ii) determine which issues satisfy the requirements of adjudicable issues as set forth in subdivision (c) of this section and define those issues as precisely as possible;
(iii) rule on the merits of any legal issue where ruling does not depend on the resolution of disputed issues of fact; and
(iv) decide any pending motions to the extent practicable.
(c) Standards for adjudicable issues.
(1) Generally applicable rules. Subject to the limitations set forth in paragraphs (6), (7) and (8) of this subdivision, an issue is adjudicable if:
(i) it relates to a dispute between the department staff and the applicant over a substantial term or condition of the draft permit;
(ii) it relates to a matter cited by the department staff as a basis to deny the permit and is contested by the applicant; or
(iii) it is proposed by a potential party and is both substantive and significant.
(2) An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ.
(3) An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.
(4) In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant.
(5) If the ALJ determines that there are no adjudicable issues, the ALJ will direct that the hearing be canceled and that the staff continue processing the application to issue the requested permit.
(6) SEQRA Issues.
(i) Department is the lead agency or there has been no coordinated review.
(a) As part of the issues ruling, the ALJ may review a determination by staff to not require the preparation of an environmental impact statement. Where the ALJ finds that the determination was irrational or otherwise affected by an error of law, the determination must be remanded to staff with instructions for a redetermination. In all other cases, the ALJ will not disturb the staff's determination.
(b) Whenever the department, as lead agency, has required the preparation of a DEIS, the determination to adjudicate issues concerning the sufficiency of the DEIS or the ability of the department to make the findings required pursuant to section 617.9 of this Title will be made according to the standards set forth in paragraph (1) of this subdivision.
(ii) Another agency serves as the lead agency.
(a) Whenever the lead agency has determined that the proposed action does not require the preparation of a DEIS, the ALJ will not entertain any issues related to SEQRA. Such issues may be considered, however, if lead agency status is re-established with the department pursuant to the provisions in section 617.6(f) of this Title.
(b) Whenever the lead agency has required the preparation of a DEIS, no issue that is based solely on compliance with SEQRA and not otherwise subject to the department's jurisdiction will be considered for adjudication unless:
(1) the department notified the lead agency during the comment period on the DEIS that the DEIS was inadequate or deficient with respect to the proposed issue and the lead agency failed to adequately respond; or
(2) the department is serving as lead agency for purposes of supplementing the FEIS. In such case, only issues that are the subject of the supplementation will be considered for adjudication.
(3) whenever issues addressed in this subparagraph are eligible for adjudication, the determination to require adjudication will be made according to the standards set forth in paragraph (1) of this subdivision.
(7) UPA Issues. The completeness of an application, as defined in section 621.2(f) of this Title, will not be an issue for adjudication. The ALJ may require the submission of additional information pursuant to section 621.14(b) of this Title.
(8) Department initiated modifications, suspensions or revocations. The only issues that may be adjudicated are those related to the basis for modification, suspension or revocation cited in the department's notice to the permittee. Whenever such issues are proposed for adjudication, the determination to require adjudication will be made according to the standards set forth in paragraph (1) of this subdivision.
§624.5 Hearing participation
Participation in the hearing may be as a full party or as amicus, depending upon the demonstrated compliance with the criteria set forth in subdivisions (b) through (d) of this section. Non-parties who wish to have their comments recorded will be permitted to submit oral or written comments during the legislative portion of the hearing, or as otherwise provided by the ALJ, as set forth above at section 624.4 of this Part. Such statements will not constitute evidence in the adjudicatory hearing, but will constitute comments on the DEIS, if one exists, and may be used by the ALJ as a basis to inquire further of all parties and potential parties at the issues conference.
(a) Mandatory parties. The applicant and assigned department staff are automatically full parties to the proceeding. However, in the case of a water supply rate dispute only the municipalities involved in the dispute are mandatory parties.
(b) Other parties. By the date set in the notice of hearing, a person desiring party status must file a petition in writing which includes the requirements of either paragraphs (1) and (2) or paragraphs (1) and (3) of this subdivision.
(1) Required contents of petition for party status:
(i) fully identify the proposed party together with the name(s) of the person or persons who will act as representative of the party;
(ii) identify petitioner's environmental interest in the proceeding;
(iii) identify any interest relating to statutes administered by the department relevant to the project;
(iv) identify whether the petition is for full party or amicus status;
(v) identify the precise grounds for opposition or support.
(2) Additional contents required for petitions for full party status:
(i) identify an issue for adjudication which meets the criteria of section 624.4(c) of this Part; and
(ii) present an offer of proof specifying the witness(es), the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect to that issue.
(3) Additional contents required for petitions for amicus status:
(i) identify the nature of the legal or policy issue(s) to be briefed which meets the criteria of section 624.4(c) of this Part; and
(ii) provide a statement explaining why the proposed party is in a special position with respect to that issue.
(4) Inadequate petition. If a potential party fails to file a petition in the form set forth above, the ALJ may deny party status or may require additional information from the filer.
(5) Supplementation of petitions. Where the ALJ finds that a prospective party did not have adequate time to prepare its petition for party status, the ALJ shall provide an opportunity for supplementation of the petition.
(c) Late filed petitions for party status.
(1) Petitions filed after the date set in the notice of hearing will not be granted except under the limited circumstances outlined in paragraph (2) of this subdivision.
(2) In addition to the required contents of a petition for party status, a petition filed late must include the following in order to receive any consideration:
(i) a demonstration that there is good cause for the late filing;
(ii) a demonstration that participation by the petitioner will not significantly delay the proceeding or unreasonably prejudice the other parties; and
(iii) a demonstration that participation will materially assist in the determination of issues raised in the proceeding.
(d) Rulings on party status. Rulings on party status will be made by the ALJ after the deadline for receipt of petitions for party status and will be set forth in the rulings on issues provided for in section 624.4 of this Part.
(1) Full party status. The ALJ's ruling of entitlement to full party status will be based upon:
(i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (b)(1) and (2) of this section;
(ii) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
(iii) a demonstration of adequate environmental interest.
(2) Amicus status. The ALJ's ruling of entitlement to amicus status must be based upon:
(i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (b)(1) and (3) of this section;
(ii) a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and
(iii) a finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.
(e) Rights of parties.
(1) A full party has the right to:
(i) participate at the hearing in person or through an authorized representative;
(ii) present relevant evidence and to cross-examine witnesses of other parties;
(iii) present argument on issues of law and fact;
(iv) initiate motions, requests, briefs or other written material in connection with the hearing, and receive all correspondence to and from the ALJ and to and from all other parties which is circulated to the parties generally;
(v) appeal adverse rulings of the ALJ; and
(vi) exercise any other right conferred on parties by this Part or SAPA.
(2) A party with amicus status has the right to file a brief and, at the discretion of the ALJ, present oral argument on the issue(s) identified in the ALJ's ruling on its party status but does not have any other rights of participation or submission.
(3) A potential party has the same rights it would be entitled to if its petition for party status were granted.
(f) Loss of party status. Upon determining that the party or its representative has failed to comply with the applicable laws, rules or directives of the ALJ and has substantially disrupted the hearing process or prejudiced the rights of another party to the proceeding, the ALJ may revoke the party status of the offending party.
§624.6 General rules of practice
(1) Rule 2103 of the CPLR will govern service of papers except that service upon the party's duly authorized representative may be made by the same means as provided for service upon an attorney.
(2) Proof of service must be made in the same manner as under the CPLR. Any required filing or proof of service must be with the Office of Hearings.
(b) Computation of time limits.
(1) Computation of time will be according to the rules of the New York State General Construction Law.
(2) if a period of time prescribed under this Part is measured from the date of the ruling, pleading, motion, appeal, decision or other communication instead of the date of service,
(i) five days will be added to the prescribed period if notification is by ordinary mail; and
(ii) one day will be added to the prescribed period if notification is by express mail or other overnight delivery.
(c) Motion practice.
(1) Motions and requests made at any time are part of the record. Motions and requests prior to the hearing must be filed in writing with the ALJ and must be served upon all parties. During the course of the hearing, motions may be made orally except where otherwise directed by the ALJ. If no ALJ has been assigned to the case, the motion must be filed with the Chief ALJ of the Office of Hearings.
(2) Every motion must clearly state its objective, the facts on which it is based, and may present legal argument in support of the motion.
(3) All parties have five days after a motion is served to serve a response. Thereafter no further responsive pleadings will be allowed without permission of the ALJ.
(4) The ALJ should rule on a motion within five days after a response has been served or the time to serve a response has expired. The ALJ must rule on all pending motions prior to the completion of testimony. Any motion not ruled upon prior to the completion of testimony must be deemed denied.
(d) Office of Hearings.
(1) Prior to the appointment of an ALJ to hear a particular case, the commissioner or the commissioner's designee from the Office of Hearings may take any action which an ALJ is authorized to take.
(2) The Office of Hearings may establish a schedule for hearing pretrial motions and other matters for cases which have no assigned ALJ.
(e) Expedited Appeals. The time periods for expedited appeals filed pursuant to section 624.8(d) of this Part are as follows:
(1) Expedited appeals or applications for leave to appeal must be filed to the commissioner in writing within five days of the disputed ruling.
(2) Upon being granted leave to appeal, a party must file the appeal in writing within five days if it has not already been filed. Thereupon the other parties may submit briefs or other arguments in support of or in opposition to the appealed issues within five days.
(3) Notice of the appeal and a copy of all briefs must be filed with the ALJ and served on all parties to the hearing. Upon receipt of notice of any appeal, the ALJ may adjourn or continue the hearing or make such other order protecting the interests of the parties.
(f) Tape recording or televising the adjudicatory hearing for rebroadcast is prohibited by section 52 of the New York State Civil Rights Law.
(g) To avoid prejudice to any party, all rules of practice involving time frames may be modified by direction of the ALJ and, for the same reasons, any other rule may be modified by the commissioner upon recommendation of the ALJ or upon the commissioner's initiative.
(a) Prior to the issues conference. Discovery is limited to what is afforded under Part 616 of this Title (Access to Records). In the absence of extraordinary circumstances the ALJ will not grant petitions for further discovery. This provision does not alter the rights of any person under Part 616 of this Title nor does it limit the ability of any party to seek disclosure after the issues conference.
(b) Without permission of the ALJ. Within 10 days after service of the final designation of the issues any party has the right to serve a discovery demand upon any other party demanding that party provide:
(1) documents, in general conformance with CPLR 3120(a)(1)(i);
(2) a list of witnesses to be called, their addresses, and the scope and content of each witness's proposed testimony, and the qualifications and published works of each, in general conformance with CPLR 3101(d)(1), except that disclosure of fact witnesses as well as expert witnesses may be demanded;
(3) an inspection of property, in general conformance with CPLR 3120(a)(1)(ii), except that drilling and other intrusive sampling and testing is not provided as of right;
(4) a request for admission, in general conformance with CPLR 3123; or
(5) lists of documentary or physical evidence to be offered at the hearing.
(c) By permission. With permission of the ALJ, a party may:
(1) obtain discovery prior to the issues conference;
(2) use discovery devices from the CPLR not provided for in subdivision (b) of this section;
(3) submit late requests for discovery or vary the time for responding to requests; and
(4) access real property in the custody or control of another for the purpose of conducting drilling or other sampling or testing. In such instance, all parties must be given notice of such activities and be allowed to observe and to take split samples or use other specified methods of verification.
(d) Protective order and motion to compel.
(1) A party against whom discovery is demanded may make a motion to the ALJ for a protective order, in general conformance with CPLR Section 3103 to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. Such a motion must be submitted within 10 days of the discovery demand and must be accompanied by an affidavit of counsel, or by the moving party or other authorized representative if not represented by counsel, reciting good faith efforts to resolve the dispute without resort to a motion.
(2) If a party fails to comply with a discovery demand without having made a timely objection, the proponent of discovery demand may apply to the ALJ to compel disclosure. The ALJ may direct that any party failing to comply with discovery after being directed to do so by the ALJ suffer preclusion from the hearing of the material demanded. Further, a failure to comply with the ALJ's direction will allow the ALJ or the commissioner to draw the inference that the material demanded is unfavorable to the noncomplying party's position.
(e) Prefiled testimony. The ALJ may require the submission of prefiled written testimony for expert witnesses. Such testimony must be attested to at the hearing and the witness must be available to be cross-examined on the testimony, unless otherwise stipulated by the parties and directed by the ALJ. Whenever the ALJ requires the submission of prefiled testimony, the testimony must provide, or must be accompanied by a technical report which provides, a full explanation of the basis for the views set forth therein, including data, tables, protocols, computations, formulae, and any other information necessary for verification of the views set forth, as well as a bibliography of reports, studies and other documents relied upon. Upon 10 days notice (which time may be shortened or extended by the ALJ) the party submitting prefiled testimony may also be required to make available all raw data, well logs, laboratory notes, and other basic materials, as well as all items on the bibliography provided. Whenever prefiled testimony is not required, any party may demand, from any other party or the department propounding an expert witness, all backup information that would be required in connection with prefiled testimony.
(f) Subpoenas. Consistent with the CPLR, any attorney of record in a proceeding has the power to issue subpoenas. A party who is not represented by an attorney admitted to practice in New York State may request the ALJ to issue a subpoena, stating the items or witnesses needed by the party to present its case. The service of a subpoena is the responsibility of its sponsor. A subpoena must give notice that the ALJ may quash or modify the subpoena pursuant to the standards set forth under CPLR article 23. This Part does not affect the authority of an attorney of record for any party to issue subpoenas under the provisions of section 2302 of the CPLR.
(g) When the hearing seeks the revocation of a license or permit previously granted by the department, either party shall, upon demand and at least seven days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses, provided, however, the provisions of this subdivision shall not be deemed to require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after such disclosure, a party determines to rely upon other witnesses or information, the party shall, as soon as practicable, supplement its disclosure by providing the names of such witnesses or the additional documents.
§624.8 Conduct of the adjudicatory hearing
(a) Order of events. The ALJ has discretion to determine and adjust the order of events and presentation of evidence, and to establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing will be as follows:
(1) Formal opening. The ALJ will convene the hearing by opening the record, identifying the applications involved, and making appropriate procedural announcements.
(2) Noting appearances. The ALJ will call the name of each person who has been granted status as a party.
(3) Opening statements. Prior to the commencement of the adjudicatory sessions each party will be called upon to offer a brief opening statement of position on the application.
(4) Admission of evidence. The applicant will present its direct case first and will start by identifying all documents which constitute the application and the DEIS (where applicable) and all supporting documents which are relevant to the issues to be adjudicated. A panel of witnesses may be used for presenting testimony or for cross-examination at the ALJ's discretion. Cross-examination will be conducted by parties in a sequence to be established by the ALJ, which normally will be the sequence in which the parties will present their direct cases. The evidence will be confined to that which is relevant to issues identified in the ALJ's determination following the issues conference.
(5) Close of record. Closing statements of position will be dealt with in the same manner as opening statements. At the concluding session of the hearing, the ALJ will determine whether to allow the submission of written post-hearing briefs. The hearing record will be officially closed upon the receipt of the stenographic record by the ALJ, the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, conclusions of law, memoranda, and exceptions, if any, by the various parties, whichever occurs last. The ALJ must notify the applicant by certified mail, and all other parties by regular mail, immediately upon official closing of the hearing record.
(6) Where the ALJ permits the filing of briefs, the ALJ will also determine whether replies will be permitted and the schedule for filing. Simultaneous filing will normally be required. A party must give specific reference to the portions of the record, whether transcript or otherwise, relied upon in support of the respective statements of fact made throughout the brief. Briefs will be considered only as argument and must not refer to or contain any evidentiary material outside of the record.
(b) The ALJ.
(1) The ALJ has power to:
(i) rule upon all motions and requests, including those that decide the ultimate merits of the case;
(ii) set the time and place of the hearing, recesses and adjournments;
(iii) administer oaths and affirmations;
(iv) issue subpoenas upon request of a party not represented by counsel admitted to practice in New York State;
(v) upon the request of a party, quash and modify subpoenas except that in the case of a non-party witness the ALJ may quash or modify a subpoena regardless of whether or not a party has so requested;
(vi) summon and examine witnesses;
(vii) establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion pursuant to the procedures set out in section 624.7 of this Part;
(viii) admit or exclude evidence including the exclusion of evidence on grounds of privilege or confidentiality;
(ix) hear and determine arguments on fact or law, except that a purely legal issue involving no factual dispute and which is a matter of first impression or is precedential in nature may be referred to the General Counsel for a determination in accordance with Part 619 of this Title (declaratory ruling) upon motion by any party or upon the ALJ's own initiative;
(x) preclude irrelevant or unduly repetitious, tangential or speculative testimony or argument;
(xi) direct the consolidation of parties with similar viewpoints and input;
(xii) limit the number of witnesses;
(xiii) utilize a panel of witnesses for purposes of direct testimony or cross-examination;
(xiv) allow oral argument, so long as it is recorded;
(xv) take any measures necessary for maintaining order and the efficient conduct of the hearing;
(xvi) take any measures necessary to ensure compliance with SEQRA and UPA not inconsistent with section 624.4 of this Part;
(xvii) in the case of water supply rate disputes, issue directives modifying any incompatible provisions of this Part, consistent with the spirit and intent of these regulations;
(xviii) issue orders limiting the length of cross-examination, size of briefs and similar matters;
(xix) order a site visit, on notice to all parties;
(xx) exercise any other authority available to ALJs under this Part or to presiding officers under article 3 of the SAPA.
(2) Impartiality of the ALJ and motions for recusal.
(i) The ALJ will conduct the hearing in a fair and impartial manner.
(ii) An ALJ must not be assigned to any proceeding in which the ALJ has a personal interest.
(iii) Any party may file with the ALJ a motion in conformance with section 624.6 of this Part, together with supporting affidavits, requesting that the ALJ be recused on the basis of personal bias or other good cause. Such motions will be determined as part of the record of the hearing.
(iv) Upon being notified that an ALJ declines or fails to serve, or in the case of the ALJ's death, illness, resignation, removal or recusal, the Chief ALJ must designate a successor.
(3) The designation of an ALJ as the Commissioner's representative must be in writing and filed in the Office of Hearings.
(1) A party may appear in person or be represented by an attorney licensed in New York State or any other jurisdiction, or by a non-attorney chosen by the party. Any representative of a party who is other than an attorney licensed to practice in New York State must disclose his or her qualifications to the party. Nothing in this paragraph authorizes a non-lawyer to engage in the practice of law.
(2) Any person appearing on behalf of a party in a representative capacity may be required by the ALJ to show his or her authority to act in such capacity and must file a notice of appearance with the ALJ.
(d) Appeals of ALJ rulings.
(1) Any ALJ ruling may be appealed to the commissioner after the completion of all testimony as part of a party's final brief or by motion where no final brief is provided for.
(2) During the course of the hearing, the following rulings may be appealed to the commissioner on an expedited basis:
(i) a ruling to include or exclude any issue for adjudication;
(ii) a ruling on the merits of any legal issue made as part of an issues ruling;
(iii) a ruling affecting party status; or
(iv) any ruling in which the ALJ has denied a motion for recusal.
(v) by seeking leave to file an expedited appeal, any other ruling of the ALJ may be appealed on an expedited basis where it is demonstrated that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. In all such cases, the commissioner's determination to entertain the appeal is discretionary.
(3) A motion for leave to file an expedited appeal must demonstrate that the ruling in question falls within one of the categories set forth in subparagraph (2)(v) of this subdivision.
(4) The commissioner may review any ruling of the ALJ on an expedited basis upon the commissioner's determination or upon a determination by the ALJ that the ruling should be appealable.
(5) Whenever the commissioner grants leave to file an expedited appeal, the parties must be so notified and provided with an opportunity to file a response to the appeal.
(6) Failure to file an appeal will not preclude appealing the ruling to the commissioner after the hearing.
(7) There will be no adjournment of the hearing during appeal except by permission of the ALJ.
(e) Joint hearings. A project may require submission of applications for more than one permit, or to more than one government agency, and public hearings may be required for more than one purpose. Whenever practicable, all such hearings will be consolidated into a single public hearing.
(f) If the department is the lead agency for purposes of SEQRA, the permit hearing shall be consolidated with the hearing on the DEIS.
§624.9 Evidence, burden of proof and standard of proof
(1) All evidence submitted must be relevant and all rules of privilege will be observed. However, other rules of evidence need not be strictly applied. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.
(2) Although relevant, evidence may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicative evidence.
(3) Where a part of a document is offered as evidence by one party, any party may offer the entire document as evidence.
(4) Whenever possible, an object that is the subject of testimony will be exhibited at the hearing. It must be properly identified as relevant, and it must be shown that it has not changed substantially due to the passage of time or any other reason.
(5) Each witness must be sworn or make an affirmation before testifying. Opening, closing and other unsworn statements are not evidence but will be considered as arguments bearing on evidence.
(6) The ALJ or the commissioner may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the department. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could not be taken, every party must be given notice thereof and, on timely request, be afforded an opportunity, prior to decision, to dispute the fact or its materiality.
(b) Burden of proof
(1) The applicant has the burden of proof to demonstrate that its proposal will be in compliance with all applicable laws and regulations administered by the department.
(2) Where the department has initiated modification, suspension or revocation proceedings, the department staff bears the burden of proof to show that the modification, suspension or revocation is supported by the preponderance of the evidence.
(3) Where an application is made for permit renewal, the permittee has the burden of proof to demonstrate that the permitted activity is in compliance with all applicable laws and regulations administered by the department. A demonstration by the permittee that the there is no change in permitted activity, environmental conditions or applicable law and regulations constitutes a prima facie case for the permittee.
(4) The burden of proof to sustain a motion will be on the party making the motion.
(c) Standard of proof. Whenever factual matters are involved, the party bearing the burden of proof must sustain that burden by a preponderance of the evidence unless a higher standard has been established by statute or regulation. This subdivision does not modify or supplement the questions that may be raised in a proceeding brought pursuant to CPLR article 78.
§624.10 Ex parte rule
(a) Except as provided below an ALJ must not directly or through a representative, communicate with any person in connection with any issue that relates in any way to the merits of the proceeding without providing notice and an opportunity for all parties to participate.
(b) An ALJ may consult on questions of law or procedures with supervisors or other staff of the Office of Hearings, provided that such supervisors or staff have not been engaged in investigative or prosecutorial functions in connection with the adjudicatory proceeding under consideration or a factually related adjudicatory proceeding.
(c) ALJs may communicate with any person on ministerial matters, such as scheduling or the location of a hearing.
(d) Parties or their representatives must not communicate with the ALJ or the commissioner in connection with any issue without providing proper notice to all the other parties.
§624.11 Payment of hearing costs
(a) Within 30 days of the last day at which testimony is taken, the applicant must pay for the cost of: physical accommodations, if not held in department facilities; publishing any required notices; and any necessary stenographic transcriptions. Except that, when a hearing is held pursuant to a department initiated modification, suspension or revocation, the department will be responsible for the costs listed above.
(b) The ALJ may require that the applicant post a bond or other acceptable financial guarantee for the costs of the hearing. Such guarantee must be provided to the department prior to commencing the hearing or the hearing will be adjourned until the guarantee is made available.
(c) A final decision will not be issued until the applicant has paid the costs of the hearing referred to in subdivision (a) of this section.
§624.12 Record of the hearing
(a) All proceedings at a hearing must be stenographically reported. The ALJ may arrange for a certified reporter to produce a stenographic transcript of the hearing, or may permit the applicant to make such arrangements. When a stenographic transcript is made, an original and two copies of the transcript must be delivered to the ALJ at the expense of the applicant. At the ALJ's discretion, part or all of the transcripts may also be required in electronic or other form.
(b) The record of the hearing must include the application (including the DEIS where applicable) and all notices (including the notice of hearing) and motions; any affidavit of publication of the notice of hearing; the transcript of the testimony taken at the hearing, the exhibits entered into evidence; any motions, appeals or petitions; where applicable, comments on the DEIS and responses thereto; any admissions, agreements or stipulations; a statement of matters officially noticed; offers of proof, objections thereto and rulings thereon; proposed findings; and the hearing report; and briefs as may have been filed including any comments on the hearing report filed pursuant to section 624.13(a)(3) of this Part.
(c) As soon as the record becomes available the ALJ shall assure that a complete and current copy of the record is placed in an accessible location for the parties' reference and/or copying.
§624.13 Final decision
(a) Hearing report.
(1) The ALJ will submit a hearing report to the commissioner within 45 days after the close of the record. The report must include findings of fact, conclusions of law and recommendations on all issues before the ALJ.
(2) The hearing report may be circulated to the parties as a recommended decision when:
(i) required by law; or
(ii) directed by the commissioner.
(3) All parties to the hearing have fourteen days after receipt of the recommended decision to submit comments to the commissioner.
(b) Final decisions.
(1) Where a recommended decision has not been issued, the final decision of the commissioner, together with the hearing report of the ALJ will be issued 60 days after the close of the record.
(2) Where a recommended decision has been issued, the final decision of the commissioner will be issued within 30 days after the close of the record, such event occurring at the expiration of the time allowed for comment on the recommended decision.
(c) Actions involving a DEIS. Where a DEIS has been the subject of the hearing, the hearing report together with the DEIS will constitute the FEIS.
(d) Stipulations. A stipulation executed by all parties resolving any or all issues removes such issue(s) from further consideration in the hearing.
(e) Reopening the record. At any time prior to issuing the final decision, the commissioner or the ALJ may direct that the hearing record be reopened to consider significant new evidence.