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620: Procedures For Issuance Of Summary Abatement Orders

Contents:

Sec.

§620.1 Definitions

As used in this Part, unless the context otherwise requires:

(a) Administrative law judge or ALJ means the commissioner's representative who conducts the hearing.

(b) Commissioner means the Commissioner of Environmental Conservation or the commissioner's duly authorized representative.

(c) Department means the Department of Environmental Conservation.

(d) Department staff means those department personnel participating in the hearing, but does not include the commissioner, any personnel of the Office of Hearings and Mediation Services, the ALJ or those advising them.

(e) Person means any individual, firm, partnership, association, corporation, trust, and estate; any State department, agency, board, public benefit corporation, public authority or commission; or any unit of local government, including any village, town, city, county, board district, commission, governing body, and any other political subdivision of the State.

(f) Respondent means any person who has received a summary abatement order under these regulations.

§620.2 General Procedure

(a) Whenever the commissioner finds, after an investigation, that any person is causing, engaging in or maintaining a condition or activity which, in the judgment of the commissioner:

(1) presents an imminent danger to the health or welfare of the people of the State, or results in or is likely to result in irreversible or irreparable damage to natural resources; and

(2) relates to the prevention and abatement powers of the commissioner in that the condition or activity pertains to or affects any of the objectives or goals of the Environmental Conservation Law, or relates to any of the permit, licensing, or regulatory programs of the Department; so that it appears to be prejudicial to the interest of the people of the State to delay action until an opportunity for hearing can be provided, the commissioner may, without prior hearing or notice, order such person to discontinue, abate or alleviate such condition or activity.

(b) Such order may be oral, telephonic, in writing, or in such other form as will, in the commissioner's judgment give reasonable notice to the person. Notice which is not given in writing will be supplemented as soon as is practicable thereafter with a written summary abatement order. A written summary abatement order shall state the grounds upon which the order is based, and shall be accompanied by evidence documenting the material facts supporting the order.

(c) Upon receipt of the commissioner's summary abatement order, it shall thereafter be the duty of the respondent to immediately discontinue, abate or alleviate such condition or activity pursuant to the terms of said order. Failure to do so shall constitute a violation of the order and of these regulations.

§620.3 Hearing

(a) The commissioner shall schedule a hearing promptly, at a time and place which the commissioner shall determine, not to exceed 15 days from the date when the summary abatement order is given. Notice of such hearing shall be served upon or otherwise provided to the respondent with the written summary abatement order.

(b) At the hearing, department staff bears the burden of persuasion on all charges and matters affirmatively asserted in the summary abatement order. Department staff may meet its burden by submission of the supporting materials that accompanied the summary abatement order. At the hearing, department staff may also present testimony and evidence that supplements the supporting materials that accompanied the summary abatement order. At the hearing, the respondent shall have the opportunity to be heard and the burden to produce evidence that such condition or activity which is the subject of the summary abatement order does not come within the provisions of subdivision (a) of section 620.2 of this Part. The respondent bears the burden of persuasion regarding all affirmative defenses. Both the respondent and department staff shall have the right of cross-examination.

(c) The respondent may waive, in writing, the hearing provided by law and these regulations. The failure of the respondent to appear, at the time, date and place set forth in the summary abatement order for a hearing, shall constitute a waiver of the requirement that a hearing be held.

(d) The hearing shall be before an administrative law judge designated by the commissioner. The ALJ shall cause a record of the hearing to be made, and shall make a report to the commissioner setting forth the appearances, the relevant facts and arguments presented at the hearing, findings of fact and conclusions of law, a recommendation on whether the order should be continued, modified or vacated and the reasons for this recommendation.

(e) The ALJ shall, to the extent practicable, and without prejudice to the respondent's right to have a public hearing concerning the issuance of a summary abatement order within 15 days from the date the order is given, consolidate the hearing on the issuance of the summary abatement order with any hearing to be held on account of respondent's violation of the environmental conservation law, or any order, rule or regulation issued or promulgated thereunder.

(f) The ALJ shall have the powers and authority provided to the presiding officer under the State Administrative Procedure Act. The ALJ may receive testimony or statements in written form, if the witness is presented to authenticate his or her statement and for cross-examination, or if the parties so stipulate.

(g) The record of the hearing may be made by a stenographer, by a tape recorder, by other electronic recording device or by other means. The ALJ shall cause a typed transcript of the record to be prepared for the department's files, but shall not wait for the preparation of this transcript before making a report to the commissioner, if so requested by the respondent or the commissioner.

(h) The ALJ shall make a report in writing to the commissioner within 30 days of the close of the hearing, unless the parties agree to an extension of this time.

(i) The provisions of Part 622 of this title (Uniform Enforcement Hearing Procedures) apply to hearings on summary abatement orders except to the extent inconsistent with the provisions of this Part.

§620.4 Subsequent Applications or Proceedings

The results of the hearing on the summary abatement order shall be without prejudice to the right of a person to apply for a permit or license from the department to conduct any activity or maintain any condition, pursuant to any of the permit or licensing programs administered by the department and shall also be without prejudice to the authority of the department or any other person to take any action on account of any violation of law, rule, regulation or order arising out of the events, situations or circumstances which led to the issuance of the summary abatement order.