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622: Uniform Enforcement Hearing Procedures

(Statutory authority:Environmental Conservation Law, 3-0301, 15 -0901, 17-0303, 17-1709, 19-0301, 23-0305, 71-0301,33-0303 and State Administrative Procedure Act Article 3)

[Effective date: January 9, 1994; as amended effective September 6, 2006]

[page 1 of 1]

Contents:

Sec.

§622.1 Applicability

(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) all administrative enforcement proceedings brought pursuant to the Environmental Conservation Law (ECL) or other law administered by the commissioner;

(2) any proceeding brought pursuant to ECL 71-0301 (summary abatement) or ECL 71-1709 except to the extent inconsistent with the provisions of Part 620 of this Title;

(3) any proceeding brought pursuant to SAPA 401(3);

(4) any proceeding brought pursuant to ECL 15-0511 (unsafe dams);

(5) any proceeding brought pursuant to ECL 27-1313 (inactive hazardous waste disposal site remedial programs) unless superseded by Part 375 of this Title;

(6) a request for a hearing made by a permittee pursuant to provisions of section 621.13 of this Title (permit modifications, suspensions or revocations by the department) or any other department initiated modification, suspension or revocation 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 or an order, permit, license or other entitlement issued by the department;

(7) proceedings on termination of appointment pursuant to Parts 183 and 184 of this Title and denial of state operation and maintenance aid for municipal sewage treatment plants; and

(8) any other proceeding which is either enforcement or disciplinary in character.

(b) 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. Enforcement proceedings arising out of a failure to comply with a final determination as to such fees and penalties issued pursuant to procedures set forth in ECL Article 72 or its implementing regulations are governed by this Part.

(c) Provisions of this Part apply to those proceedings commenced on or after the effective date of these regulations.

§622.2 Definitions

Whenever used in this Part, unless otherwise expressly stated, the following terms will have the meanings indicated in this section. 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) Administrative Law Judge or ALJ means the commissioner's representative who conducts the hearing.

(b) Commissioner means the Commissioner of Environmental Conservation of the State of New York or the commissioner's designee.

(c) CPLR means the New York State Civil Practice Law and Rules.

(d) Department means the Department of Environmental Conservation of the State of New York.

(e) 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.

(f) Discovery means 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.

(g) ECL means the New York State Environmental Conservation Law.

(h) Evidence means sworn testimony of a witness, physical objects, documents, records or photographs representative of facts which have been admitted into the record by the ALJ.

(i) 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.

(j) 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.

(k) Motion means a request for a ruling or an order.

(l) Office of Hearings means the office within the department principally responsible for conducting adjudicatory hearings.

(m) Party means the department staff, all persons designated respondent and any party granted intervenor status pursuant to subdivision 622.10(f) of this Part but does not include the commissioner or the Office of Hearings.

(n) 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.

(o) 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.

(p) Protective Order means an order denying, limiting, conditioning or regulating the use of material requested through discovery.

(q) Relevant means tending to support or refute the existence of any fact that is of consequence or material to the commissioner's decision.

(r) Report means the ALJ's summary of the hearing record including the ALJ's findings of fact and conclusions.

(s) Respondent means the person charged with one or more violations of the ECL, rules and regulations promulgated thereunder or any permit, certificate or order issued thereunder or a person alleged by staff to be a responsible party for the relief sought.

(t) SAPA means the New York State Administrative Procedures Act.

(u) Service means the delivery of a document to a party by authorized means and, where applicable, the filing of a document with the ALJ, Office of Hearings or the commissioner.

(v) 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.

(w) Subpoena means a legal document that requires a person to appear at a hearing and testify and/or bring documents or physical objects.

§622.3 Commencement of a proceeding

(a) Notice of hearing and complaint.

(1) The department staff may commence an administrative proceeding by the service of a notice of hearing. If the action is commenced by a notice of hearing it must be accompanied by a complaint. The complaint must contain:

(i) a statement of the legal authority and jurisdiction under which the proceeding is to be held;

(ii) a reference to the particular sections of the statutes, rules and regulations involved; and

(iii) a concise statement of the matters asserted.

(2) The notice of hearing must state that a hearing date will be set by the Office of Hearings upon the filing of a Statement of Readiness for Adjudicatory Hearing as set forth in section 622.9 of this Part. The notice of hearing must also contain a statement that any affirmative defenses, including exemptions to permit requirements, will be waived unless raised in the answer and may set forth the date, time and place of a pre- hearing conference. The notice must contain a statement that the failure to answer or failure to attend a pre-hearing conference will result in a default and a waiver of respondent's right to a hearing.

(3) Service of the notice of hearing and complaint must be by personal service consistent with the CPLR or by certified mail. Where service is by certified mail, service shall be complete when the notice of hearing and complaint is received. If personal service and service by certified mail is impracticable, upon application by the staff the ALJ may provide for an alternative method of service consistent with CPLR section 308.5.

(b) Other methods for commencing a proceeding.

(1) Proceedings may be commenced pursuant to sections 622.12 and 622.14 of this Part.

(2) Where a proceeding arises out of department staff's notification of intent to take specified action which will become final unless a hearing is requested, such notification shall take the place of a complaint. Service of the notice of intent shall be in the same manner as prescribed in subdivision (a) of this section. In these cases, the request for a hearing shall take the place of an answer.

§622.4 Answer

(a) Within 20 days of receiving the notice of hearing and complaint or an amended complaint, the respondent must serve on the department staff an answer signed by respondent, respondent's attorney or other authorized representative. The time to answer may be extended by consent of staff or by a ruling of the ALJ. Failure to make timely service of an answer shall constitute a default and a waiver of the respondent's right to a hearing.

(b) The respondent must specify in its answer which allegations it admits, which allegations it denies and which allegations it has insufficient information upon which to form an opinion regarding the allegation.

(c) The respondent's answer must explicitly assert any affirmative defenses together with a statement of the facts which constitute the grounds of each affirmative defense asserted. Whenever the complaint alleges that respondent conducted an activity without a required permit, a defense based upon the inapplicability of the permit requirement to the activity shall constitute an affirmative defense.

(d) Affirmative defenses not pled in the answer may not be raised in the hearing unless allowed by the ALJ. The ALJ shall only allow such defense upon the filing of a satisfactory explanation as to why the defense was not pled in the answer and a showing that such affirmative defense is likely to be meritorious.

(e) The respondent may move for a more definite statement of the complaint within 10 days of completion of service on the grounds that the complaint is so vague or ambiguous that respondent cannot reasonably be required to frame an answer.

(1) If the motion is denied, respondent must answer within 10 days of receipt of notice that the motion is denied.

(2) If the motion is granted, the department staff must serve an amended complaint within 15 days of receipt of notice that the motion is granted and respondent must serve an answer within 20 days of the receipt of the amended complaint.

(f) The department staff may move for clarification of affirmative defenses within 10 days of completion of service of the answer on the grounds that the affirmative defenses pled in the answer are vague or ambiguous and that staff is not thereby placed on notice of the facts or legal theory upon which respondent's defense is based.

§622.5 Amendment of pleadings

(a) A party may amend its pleading once without permission at any time before the period for responding expires or, if no responsive pleading is required, at least 20 days prior to commencement of the hearing.

(b) Consistent with the CPLR a party may amend its pleading at any time prior to the final decision of the commissioner by permission of the ALJ or the commissioner and absent prejudice to the ability of any other party to respond.

§622.6 General rules of practice

(a) Service of papers.

(1) Rule 2103 of the CPLR will govern service of papers except that service upon the respondent's duly authorized representative may be made by the same means as provided for service upon an attorney.

(2) Any required filing or proof of service must be made 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 must be part of the record. Motions and requests made prior to the hearing must be filed in writing with the ALJ and 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.

(2) Every motion must clearly state its objective and the facts upon 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 motions not ruled upon at that time will 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 622.10 of this Part are as follows:

(1) Expedited appeals or applications for leave to appeal must be filed with the commissioner in writing within five days of the disputed ruling.

(2) Upon being granted leave to appeal, appellant must file the appeal in writing within five days if it has not already been filed as part of appellant's motion papers. Thereafter the other parties may file 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) To avoid prejudice to any of the parties, all rules of practice involving time periods 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 his own initiative.

(g) Tape recording or televising of the adjudicatory hearing for rebroadcast is prohibited by section 52 of the New York State Civil Rights Law.

§622.7 Discovery

(a) Scope. The scope of discovery must be as broad as that provided under article 31 of the CPLR.

(b) Discovery devices.

(1) Except as noted below, the parties may employ any disclosure device contained in article 31 of the CPLR. Where production and inspection of documents is sought, the requested documents must be furnished within 10 days of receipt of the discovery request unless a motion for a protective order is made.

(2) Depositions and written interrogatories will only be allowed with permission of the ALJ upon a finding that they are likely to expedite the proceeding.

(3) Bills of particulars are not permitted.

(c) 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 filed within 10 days of the discovery demand and must be accompanied by an affidavit of counsel, or by the moving party 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 the discovery demand may apply to the ALJ to compel disclosure.

(3) Sanctions. 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.

(d) Subpoenas. Consistent with the CPLR, any attorney of record in a proceeding has the power to issue subpoenas. A party not represented by an attorney admitted to practice in New York 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. 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, except that all subpoenas shall give notice that the ALJ may quash or modify the subpoena pursuant to the standards set forth under CPLR article 23.

(e) 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.

§622.8 The pre-hearing conference

(a) A pre-hearing conference must be held when notice thereof is provided in the notice of hearing. A pre-hearing conference may not be held when a proceeding is commenced by motion for an order without hearing. In any situation where provisional relief is imposed prior to the opportunity for a hearing or where the respondent is entitled by law or regulation to a hearing within a stated period of time, a pre-hearing conference may only be permitted with the consent of the respondent.

(b) The purpose of the conference is to resolve, define and clarify issues between the parties prior to the hearing.

(c) The conference must be attended by the department staff and the respondent(s). No ALJ will be present at the conference but the parties may consult by conference call with the Office of Hearings during the conference. Attendance at the conference is mandatory and failure to attend constitutes a default and a waiver of the opportunity for a hearing.

(d) No stenographic record of the conference will be made.

(e) At the conclusion of the conference, the parties will notify the Office of Hearings of any resulting agreement or stipulation.

§622.9 Statement of readiness for adjudicatory hearing

(a) General. A case will be placed on the hearing calendar upon department staff filing a statement of readiness for adjudicatory hearing with the Office of Hearings. Such statement must be in a form established by the department and must be served on all parties to the hearing. However, wherever the respondent is entitled by law or regulation to a hearing within a stated period of time, the case will be placed on the hearing calendar upon the filing of a copy of the answer with the Office of Hearing.

(b) Contents. The statement of readiness for adjudicatory hearing must include:

(1) the name, address and telephone number of each of the parties and their attorneys;

(2) a statement that discovery is complete or has been waived or an explanation as to why it hasn't been completed;

(3) an affirmative assertion that a reasonable attempt has been made to settle, and that the case is ready for adjudication; and

(4) a request for the setting of a hearing date.

(c) The accuracy and sufficiency of the statement of readiness will not be subject to motion practice or any form of adjudication.

(d) On receipt of a statement of readiness for adjudicatory hearing that conforms to the requirements of this section, the Office of Hearings will assign an ALJ to hear the case and will schedule a hearing date.

(e) The ALJ will notify all parties to the hearing in writing of the time, date and place of the hearing. Such notification shall also contain a statement that the failure to appear at the hearing constitutes a default and a waiver of respondent's right to a hearing.

§622.10 Conduct of the hearing

(a) Order of events.

(1) Before any evidence is offered the department staff and then the respondent may make an opening statement.

(2) The ALJ will determine the order in which parties present evidence but will generally require that the party with the burden of proof present its case first. Department staff may present a rebuttal case with respect to any affirmative defenses presented by the respondent. At the discretion of the ALJ, rebuttal cases may be allowed in other situations.

(3) Each witness will first be questioned by the party calling the witness (direct examination) and then examined by the opposing party (cross examination). These examinations may be followed by re-direct and re-cross examinations.

(4) The ALJ will determine the sequence in which the issues will be tried and otherwise regulate the conduct of the hearing in order to achieve a speedy and fair disposition of the matters at issue.

(5) At the conclusion of the evidentiary hearing the ALJ may give the parties an opportunity to make closing statements or to file briefs.

(6) A hearing shall be conducted as nearly as practicable in the manner of a trial by court.

(b) The ALJ.

(1) The ALJ has the power to:

(i) rule upon motions and requests, including those that decide the ultimate merits of the proceeding;

(ii) set the time and the place of 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, issue, 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) admit or exclude evidence;

(viii) allow oral argument, so long as it is recorded;

(ix) hear and determine argument on facts and law;

(x) do all acts and take all measures necessary for the maintenance of order and efficient conduct of the hearing;

(xi) direct the convening of any conference required for administrative efficiency;

(xii) preclude irrelevant or unduly repetitious, tangential or speculative testimony or argument;

(xiii) issue orders limiting the length of cross-examination, size of briefs and similar matters; and

(xiv) exercise any other authority available to ALJs under this Part or 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 622.6 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.

(c) Appearances.

(1) A party may appear in person or by counsel.

(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 ruling of an ALJ 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) any ruling in which the ALJ has denied a motion for recusal.

(ii) by seeking leave to file an expedited appeal, any other ruling of the ALJ where it is demonstrated that the failure to decide such an appeal on an expedited basis 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(ii) of this subdivision.

(4) The commissioner may review any ruling of the ALJ on an expedited basis upon the commissioner's own initiative 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 while an appeal is pending except by permission of the ALJ or the commissioner.

(e) Consolidation and severance.

(1) In proceedings which involve common questions of fact, the Chief ALJ upon the ALJ's own initiative or upon motion of any party, may order a consolidation of proceedings or a joint hearing of any or all issues.

(2) The ALJ, upon the ALJ's own initiative or upon request of any party, in order to avoid prejudice or to achieve administrative efficiency, may order a severance of the hearing and hear separately any issue or any party to the proceeding.

(f) Intervention.

(1) At any time after the institution of a proceeding, the commissioner or the ALJ, upon receipt of a verified petition in writing and for good cause shown, may permit a person to intervene as a party.

(2) The petition of any person desiring to intervene as a party must state with preciseness and particularity:

(i) the petitioner's relationship to the matters involved;

(ii) the nature of the material petitioner intends to present in evidence;

(iii) the nature of the argument petitioner intends to make; and

(iv) any other reason that the petitioner should be allowed to intervene.

(3) Intervention will only be granted where it is demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested and that those rights cannot be adequately represented by the parties to the hearing.

(g) Adjournment. After a date has been set for the hearing adjournments will be granted only for good cause and with the permission of the ALJ. A request for an adjournment prior to the commencement of the hearing must be in writing and must be filed with the ALJ prior to the hearing. Adjournments must specify the time, day and place when the hearing will resume or specify the time and day on which the parties will advise the ALJ of the status of the case.

§622.11 Evidence, burden of proof and standard of proof

(a) Evidence.

(1) Before testifying, each witness must be sworn or make an affirmation.

(2) When necessary, in order to prevent undue prolongation of the hearing, the ALJ may limit the repetitious examination or cross-examination of witnesses or the amount of corroborative or cumulative testimony.

(3) The rules of evidence need not be strictly applied; provided, however, the ALJ will exclude irrelevant, immaterial or unduly repetitious evidence and must give effect to the rules of privilege recognized by New York State law.

(4) Every party must have the right to present evidence and cross-examine witnesses.

(5) Official notice may be taken 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 shall be given notice thereof and shall on timely request be afforded an opportunity prior to the final decision of the commissioner to dispute the fact or its materiality.

(6) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, must be admissible in evidence in proof of that act, transaction, occurrence or event, if the ALJ finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of the memorandum or record including lack of personal knowledge by the maker, may be proved to affect its weight, but they will not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.

(7) Where a public officer is required or authorized by special provision of law, to make a certificate or an affidavit to a fact ascertained, or an act performed by him in the course of his official duty, and to file or deposit it in a public office of the State, the certificate or affidavit so filed or deposited is prima facie evidence of the facts stated.

(8) A statement signed by an officer or a qualified agent or representative having legal custody of specified official records of the United States or of any state, country, town, village or city or of any court thereof, or kept in any public office thereof, that he has made diligent search of the records and has found no record or entry of a specified nature, is prima facie evidence that the records contain no such record or entry, but only if the statement is accompanied by a certificate that legal custody of the specified official records belongs to such person. The certification must be made by a person described in rule 4540 of the CPLR.

(9) All maps, surveys and official records affecting real property, which are on file in the State in the office of the registrar of any county, any county clerk, any court of record or any department of the State or City of New York are prima facie evidence of their contents.

(10) Samples may be displayed at the hearing and may be described for purposes of the record, but need not be admitted in evidence as exhibits.

(11) All written statements, charts, tabulations and similar data offered in evidence at the hearing must, upon a showing satisfactory to the ALJ of their authenticity, relevancy and materiality, be received in evidence and constitute a part of the record.

(12) Where the testimony of a witness refers to a statute, a report or a document, the ALJ must, after being satisfied of the identity of such statute, report or document, determine whether it will be produced at the hearing and physically made a part of the record or of it will be incorporated in the record by reference.

(b) Burden of proof.

(1) The department staff bears the burden of proof on all charges and matters which they affirmatively assert in the instrument which initiated the proceeding.

(2) The respondent bears the burden of proof regarding all affirmative defenses.

(3) The party making a motion bears the burden of proof on that 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.

§622.12 Motion for order without hearing

(a) In lieu of or in addition to a notice of hearing and complaint, the department staff may serve, in the same manner, a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence. Simultaneously with the service of the motion for order without hearing or as soon as practical thereafter, department staff shall send a copy of the motion and supporting papers to the Chief ALJ together with proof of service on the respondent.

(b) The motion shall include a statement that a response must be filed with the Chief ALJ within 20 days after the receipt of the motion and that the failure to answer constitutes a default.

(c) Within 20 days of receipt of such motion, the respondent must file a response with the Chief ALJ which shall also include supporting affidavits and other available documentary evidence. When it appears from affidavits and documentary evidence filed in opposition to the motion, that facts essential to justify opposition may exist but cannot then be stated, the assigned ALJ may deny the motion or order a continuance to permit the submission of such essential facts and make such other orders as may be just.

(d) A contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party. Likewise, where the motion includes several causes of actions, the motion may be granted in part if it is found that some but not all such causes of action or any defense thereto is sufficiently established. Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the commissioner pursuant to section 622.18 of this Part.

(e) The motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing. If a motion for order without hearing is denied, the ALJ may, if practicable, ascertain what facts are not in dispute or are incontrovertible by examining the evidence filed, interrogating counsel and/or directing a conference. The ALJ will thereupon make a ruling denying the motion and specifying what facts, if any, will be deemed established for all purposes in the hearing. Upon the issuance of such a ruling, the moving and responsive papers will be deemed the complaint and answer, respectively, and the hearing will proceed pursuant to this rule.

(f) The existence of a triable issue of fact regarding the amount of civil penalties which should be imposed will not bar the granting of a motion for an order without hearing. If this issue is the only triable issue of fact presented, the ALJ must immediately convene a hearing to assess the amount of penalties to be recommended to the commissioner.

§622.13 Expedited fact finding

Where a complaint includes the allegation that a respondent is unlawfully conducting an activity without a permit, the ALJ must, upon motion from staff or respondent, sever this issue from the other allegations for expedited adjudication. Upon completion of the expedited adjudication, the ALJ will submit a report to the commissioner containing findings of fact, conclusions of law and recommendations limited to the issue of whether or not the respondent is unlawfully conducting an activity which requires a permit. The commissioner may issue an order to desist upon finding that respondent is conducting such an unpermitted activity. All remaining issues, including the assessment of civil penalties, must be heard and resolved as part of the original proceeding.

§622.14 Summary abatement and summary suspension orders

(a) The department staff may commence a proceeding by serving upon a person a summary abatement order pursuant to ECL 71-0301 and 71-1709 or a summary suspension order pursuant to SAPA 401(3). Any such order must provide a clear statement of its basis and of the opportunity for a hearing. The date for the hearing must be set in the order and the order shall also contain a statement that the failure to appear at the hearing constitutes a default and the waiver of the right to a hearing.

(b) Sections 622.3, 622.4, 622.8, 622.9 and 622.13 of this Part are not applicable to proceedings brought pursuant to this section.

(c) In a summary abatement proceeding, the provisions of Part 620 of this Title also apply and supersede any inconsistent provision of this Part.

(d) Where a person is served with a summary abatement order or a summary suspension order, such person may also be served with a complaint as provided in section 622.3 of this Part. Whenever possible, but without prejudice to the respondent's rights, the matters that are the subject of the complaint may be heard together with those that are the subject of the summary abatement or summary suspension order.

§622.15 Default procedures

(a) A respondent's failure to file a timely answer or, even if a timely answer is filed, failure to appear at the hearing or the pre-hearing conference (if one has been scheduled pursuant to section 622.8 of this Part) constitutes a default and a waiver of respondent's right to a hearing. If any of these events occurs the department staff may make a motion to the ALJ for a default judgment.

(b) The motion for a default judgment may be made orally on the record or in writing and must contain:

(1) proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding;

(2) proof of the respondent's failure to appear or failure to file a timely answer; and

(3) a proposed order.

(c) Upon a finding by the ALJ that the requirements of subdivision (b) of this section have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner.

(d) Any motion for a default judgment or motion to reopen a default must be made to the ALJ. A motion to reopen a default judgment may be granted consistent with CPLR section 5015. The ALJ may grant a motion to reopen a default upon a showing that a meritorious defense is likely to exist and that good cause for the default exists.

(e) The defaulting party must be served with a copy of the final determination and order of the commissioner.

§622.16 Ex parte rule

(a) Except as provided below, an ALJ must not communicate, directly or through a representative, 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 procedure with supervisors and 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, or any person advising or consulting with either of them, in connection with any issue without providing proper notice to all the other parties.

§622.17 Record of the hearing

(a) Testimony given and other proceedings at a hearing must be recorded verbatim. For this purpose and consistent with respondent's rights, the ALJ may use whatever means the ALJ deems appropriate, including but not limited to the use of stenographic transcriptions or recording devices. 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 notice of hearing, complaint and any other pleadings; motions and requests filed, and rulings thereon; the transcript or recording of the testimony taken at the hearing; exhibits submitted and filed; stipulations, if any; a statement of matters officially noticed except matters so obvious that a statement of them would serve no useful purpose; the hearing report; and briefs as may have been filed including any comments to the hearing report filed pursuant to section 622.18(a)(3) of this Part.

(c) A copy of the stenographic transcript of the hearing, or if the hearing is recorded, a copy of the tape, or a transcript of the recording will be available to any party upon request to the stenographer or department, as appropriate, and upon payment of the fees allowed by law.

§622.18 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 must have 14 days after receipt of the recommended decision to file comments to the commissioner, unless such time is varied by the ALJ or 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) Stipulations. Any time prior to receipt of the ALJ's report or recommended decision, the department and respondent may enter into a stipulation on any matter. Where a stipulation is reached on all charges the hearing will be canceled and no further action of the commissioner will be required.

(d) 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.

(e) The final determination will be embodied in an order which must contain findings of fact and conclusions of law or reasons for the final determination and may provide for:

(1) a finding of liability or the dismissal of the charges;

(2) assessment of penalties or other sanctions consistent with the applicable provisions of the ECL;

(3) direction for abatement or restoration or provision for financial security;

(4) a combination of any or all of the foregoing; and

(5) any determination deemed appropriate under the circumstances, and consistent with applicable provisions of the Environmental Conservation Law or the rules and regulations promulgated thereunder.

(f) A copy of the final determination and order will be served on the parties in the same manner as is provided for the service of notice of hearing by these rules.