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Subpart 645-6 Permit Hearing Procedures

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Contents:

Sec.

§645-6.1 Applicability

This Subpart applies to hearings conducted by the commission on applications for any permits required pursuant to Subpart 645-5 of this Part, or other proceedings processed as a permit application.

§645-6.2 Hearing Officer

(a) Upon a determination by the commission to conduct a public hearing on a permit application, or if a public hearing is requested or required, the commission shall appoint a hearing officer who shall supervise all aspects of the hearing process.

(b) A hearing officer shall be appointed in accordance with the procedures specified in section 645-4.9(b) of this Part.

(c) The hearing officer shall have power to:

(1) rule upon all motions and requests;

(2) set the time and place of the hearing and recesses and adjournments;

(3) administer oaths and affirmations;

(4) issue subpoenas;

(5) summon and examine witnesses;

(6) establish rules for and direct disclosure at the request of any party or upon the hearing officer's own motion consistent with the general principles of article 31 of the CPLR if, in the discretion of the hearing officer, such disclosure will aid in narrowing the issues and not unduly delay the proceedings. However, in view of the fact-finding nature of the proceedings, the exemption from disclosure contained in CPLR section 3101(d) (material prepared for litigation) shall not be applicable to the preparation and exchange of the following when ordered by the hearing officer:

(i) witness lists, including the names and address of all witnesses, the scope and content of each witness's proposed testimony and, for expert witnesses, their education and any published works;

(ii) prefiled written testimony, which shall be attested to at the hearing and the witness shall be available to be cross-examined on the testimony unless otherwise stipulated by the parties;

(iii) lists of documentary or physical evidence to be offered at the hearing;

(iv) written interrogatories; or

(v) other disclosure devices contained in article 31 of the CPLR. Failure by a party to adhere to the hearing officer's disclosure order may result in preclusion of evidence, the loss of party status, opportunity to be heard, or denial of the permit;

(7) admit or exclude evidence, including the exclusion of evidence on grounds of privilege or confidentiality;

(8) hear and determine arguments on fact or law and require written briefs on issues which cannot be resolved at the issues conference;

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

(10) take any measures necessary for maintaining order and the efficient conduct of the hearing; and

(11) report to the commission in accordance with the requirements of this Subpart.

§645-6.3 Notice of Hearing

(a) The commission shall publish notice of the hearing in the ENB, and shall provide notice to the applicant not less than 21 calendar days prior to the hearing date. The applicant shall provide for and bear the cost of publication of the notice in a newspaper having general circulation in Warren, Washington and Essex Counties, and such other notice as the commission may reasonably require within the area where the proposed project is located. The newspaper notice shall be published at least once and not less than 21 calendar days prior to the hearing date.

(b) The notice shall be as specified by the commission and shall contain the following information:

(1) the date of issuance of the notice and reference to any prior notice of application;

(2) the date, time, location and purpose of the hearing and any prehearing conference, if scheduled;

(3) the name and address of the applicant;

(4) the permits or approvals sought and citations of applicable statutes and regulations;

(5) a brief description of the proposed project and its location, including the real property map section, block and lot;

(6) where the commission is lead agency pursuant to SEQR and a DEIS is among the subjects of the hearing, an indication that comments on the DEIS may be received at the hearing and information relative to the availability of the DEIS for review by the public; and

(7) instructions for filing for party status.

(c) The notice may also specify the issues of concern to the commission and the public.

(d) Individual copies of the notice shall also be sent, not less than 21 calendar days prior to the hearing date, to the chief executive officer of any municipality in which the project is located, and such other persons as the commission deems to have an interest in the application.

§645-6.4 Hearing Participation

Participation in the hearing may be full or limited, depending upon the degree of interest and involvement sought in the proceeding. Members of the public who do not intend to introduce evidence but who wish to have their arguments recorded shall only be permitted to make a limited appearance.

(a) The parties to a hearing shall be:

(1) the applicant;

(2) the commission staff; and

(3) other interested persons who meet the requirements in subdivision (b) of this section.

(b) To obtain party status, a person must file, in writing and by the date set in the notice of hearing, a statement of position which identifies:

(1) the person's grounds of support or opposition to the project, including a demonstration of the social, economic or environmental interests of the person which are likely to be affected by the proposed project; and

(2) the nature of the argument and evidence which the person intends to present, and any other matter believed relevant.

(c) If a sufficient filing is not made, the hearing officer has discretion to deny party status or require additional information from the person requesting party status. The hearing officer's ruling on party status shall be based upon a finding that sufficient interest, as described in paragraph (b)(1) of this section, has been demonstrated.

(d) The hearing officer may limit the participation of a party to those areas in which its identified interest may be affected, or in which its expertise would prove beneficial to the development of a factual record.

(e) The hearing officer may allow any person meeting the requirements of paragraph (b) of this section to become a party at any time during the hearing if it is shown:

(1) that good cause exists for failure to file on time;

(2) that no party will be unreasonably disadvantaged or otherwise prejudiced; and

(3) that the person's participation will materially contribute to a complete record.

(f) Any ruling of the hearing officer denying or limiting party status may, within seven days of the ruling, be appealed in writing to the commission which shall decide the appeal at its next regular meeting following receipt of all papers filed in connection with the appeal. Notice of the appeal and a copy of all briefs submitted in support thereof shall be presented to the commission. Upon receipt of an appeal, the hearing officer shall decide whether to adjourn the hearing or to make such other order protecting the interests of the parties and the person initiating the appeal as justice requires, including an order that witnesses may be recalled should the decision be reversed.

(g) A person who is not a party may make a limited appearance by either submitting a written statement to the hearing officer at the hearing or requesting, at or prior to the opening of the hearing, to make an oral statement. Such a person shall have the right to present unsworn written and oral statements on issues of law and fact relevant to the hearing at such times and to the extent as established by the hearing officer. Such statements:

(1) do not have the weight or importance of sworn statements or other evidence; and

(2) shall be appropriately considered by the hearing officer and the commission in weighing the evidence and in making statutory and regulatory conclusions of law.

(h) Consolidation of parties. If a hearing involves numerous parties, some or all of whom have similar viewpoints and input, in order to avoid repetitious testimony or argument the hearing officer may:

(1) limit the number of witnesses on a given issue or subject, in order to avoid needless presentation of duplicative evidence;

(2) limit the scope of cross-examination to matters not previously subject to cross-examination;

(3) limit the number of rebuttal witnesses and the scope of their testimony;

(4) limit the time for oral argument and/or require written briefs or submission;

(5) utilize a panel of witnesses for purposes of direct testimony or cross-examination; and

(6) take other reasonable measures to minimize repetitious testimony or argument.

§645-6.5 Rights of parties

Consistent with the hearing officer's rulings on the extent of participation, the rights of parties are as follows:

(a) A party desiring to participate at the hearing may do so in person, by attorney or by representative presenting written authorization to represent that party.

(b) A party shall have the right to present relevant written and oral argument on issues of law and fact, to present relevant evidence and to cross-examine witnesses of other parties.

(c) Any party initiating motions, requests, briefs or other written material in connection with the hearing shall serve such material on every other party unless otherwise directed by the hearing officer.

(d) A party must be present on a timely basis to present evidence, cross-examine witnesses or receive notice of scheduling of subsequent sessions. Failure to be present at a hearing session shall not be deemed a waiver of the right to receive any written notice of adjournment, decisions on motions and requests, or the final decision.

§645-6.6 Issues Conference

(a) An issues conference will be scheduled when possible in advance of the public hearing. The function of the conference is, as far as possible, to narrow or resolve issues raised by the parties concerning the permit application and to define and limit the scope of issues remaining as subjects for the adjudicatory hearing sessions. At the issues conference, the hearing officer may rule on party status, direct disclosure between the parties, and outline the conduct of the hearing.

(b) Where a DEIS accompanies an application, the conference shall also focus on whether and to what extent significant impact, alternatives, mitigation measure or social and economic considerations identified in the DEIS, or raised in comments on the DEIS, should be addressed in the adjudicatory session of the hearing, particularly where there is a reasonable likelihood that the issues arising from the DEIS might lead to the denial of the permit or the issuance of significant permit conditions.

(c) Following the conference, the hearing officer will determine and advise the parties of the issues to which testimony and other evidence in the adjudicatory session will be limited or will determine that the hearing is to be adjourned or cancelled. The hearing officer's determination shall be based upon whether the issues raised are substantive and significant, and resolution of such issues may result in permit denial, require major modification to the project or the imposition of significant permit conditions. The hearing officer will enter his determination on the record.

(d) The ruling of the hearing officer setting forth the issues for the hearing may, within seven days of the ruling, be appealed in writing to the commission, which shall decide the appeal at its next regular meeting following the receipt of all papers filed in connection with the appeal. Other parties may submit briefs in support of or in opposition to the hearing officer's ruling. Notice of the appeal and a copy of all briefs submitted in support thereof shall be given to the hearing officer and all parties to the hearing. Upon receipt of notice of an appeal, the hearing officer shall decide whether to adjourn or continue the hearing or to make such other order protecting the interests of the parties as justice requires.

(e) The hearing officer shall summarize the record, the action taken at the conference and incorporate into the record any admissions, stipulations or agreements which were made by the parties.

§645-6.7 Conduct of Hearing

(a) Order of events. The hearing officer shall have discretion to adjust the order of events and establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing shall be as follows:

(1) Formal opening. The hearing officer shall convene the hearing by opening the record, identifying the applications involved, and making appropriate procedural announcements as necessary.

(2) Noting appearances. The hearing officer shall call the name of each person who has properly filed for status as a party and announce the rulings on the extent of each party's participation. The hearing officer shall establish procedures for receiving the statements of others making a limited appearance.

(3) Legislative hearing sessions and comments on the DEIS (where applicable). The hearing officer shall hear and receive the unsworn statements of persons other than parties as they relate to the permit application(s), and to the DEIS where it is among the subjects of the hearing. The hearing officer may require that lengthy statements be submitted in writing and summarized for oral presentation. If the applicant has prepared the DEIS, it shall prepare a written response to comments received and shall file it as an exhibit to the hearing record. Other parties shall be afforded opportunity to contest the response to comments prior to the close of the hearing record.

(4) Reconvening the issues conference. At the discretion of the hearing officer, the issues conference may be reconvened to consider additional issues raised during the legislative hearing session, if one has been held (or, if not previously held, initiated) at this time.

(5) Opening statements. Prior to the commencement of the adjudicatory session, each party will be called upon to offer a brief opening statement of position on the application.

(6) Admission of evidence. The applicant will present its direct case first and will start by identifying all documents which constitute and support the applications and the DEIS (where applicable) 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 hearing officer's discretion. Cross-examination will be conducted by parties in a sequence to be established by the hearing officer, 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 in the hearing officer's determination to the issues identified following the issues conference.

(7) Closing statements and briefs. Closing statements will be allowed in the same manner as opening statements. At the concluding session of the hearing, the hearing officer will determine whether to allow the submission of written post-hearing briefs and proposed findings of fact. The hearing record will be officially closed upon the receipt of the stenographic record by the hearing officer, the receipt of additional technical data or other material agreed upon at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, proposed findings of fact, conclusions of law, memoranda, and exceptions, if any, by the various parties, whichever occurs later. The hearing officer shall notify the applicant and all other parties by regular mail, immediately upon official closing of the hearing record.

(b) Motions. Motions and requests may be made at any time during the course of a hearing and shall be part of the record.

(c) Proposed findings of fact and conclusions of law. The hearing officer shall make findings of fact and conclusions based on the record and shall forward a hearing report to the commission for final decision. Where necessary, the report shall include the FEIS for the project. Where the commission is lead agency, the DEIS, any response to comments and the hearing officer's report shall constitute the FEIS. Where the hearing officer has permitted parties to submit proposed findings of fact, the hearing report shall include a proposed ruling on each proposed finding.

(d) Service of papers. Except as specified elsewhere in this Subpart, all papers connected with a hearing and the final decision of the commission may be served by ordinary mail.

§645-6.8 Subpoenas

(a) In the case of parties not represented by an attorney:

(1) a subpoena for a witness during the course of a hearing shall be issued at the discretion of the hearing officer; and

(2) a subpoena involving specified records (subpoena duces tecum) shall be issued by the hearing officer only when the party applying for such subpoena provides a written showing of necessity. Such a subpoena shall designate as specifically as possible the books, papers or other materials to be produced by the party against whom the subpoena is served.

(b) The service of a subpoena shall be the responsibility of the party requesting the subpoena.

(c) If a party or witness fails to respond to a subpoena personally served, the default shall be noted in the hearing record. If the testimony involved is essential for the completion of a party's case, the hearing may be adjourned until the party requesting or issuing the subpoena has had a reasonable opportunity to obtain compliance with the subpoena in accordance with applicable law.

(d) Nothing in this Part shall affect the authority of an attorney of record for any party to issue subpoenas under the provisions of CPLR section 2302.

§645-6.9 Stipulations

(a) At any time after publication of a notice of hearing, the hearing officer may request that the parties attempt to stipulate to an agreement that will resolve specified issues and result in withdrawal of objections, limiting the scope of the subject matter, or in the discontinuance of the hearing.

(b) Such stipulations shall be incorporated into the record of the hearing or agreed to in writing by the involved parties and filed with the hearing officer.

(c) Such stipulations do not alter the responsibility of the commission to make a determination on the application consistent with all applicable laws and regulations.

§645-6.10 Record of Hearing

(a) All proceedings at a hearing shall be stenographically reported.

(b) The hearing officer 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 shall be delivered to the hearing officer at the expense of the applicant.

(c) The transcript of testimony introduced at the hearing shall be delivered to the hearing officer as soon as practicable.

(d) The hearing officer shall file with the commission a report (including a FEIS where required) and a complete record of the hearing which shall include:

(1) the application (including DEIS where applicable) and all notices (including the notice of hearing) and motions;

(2) any affidavit of publication of the notice of hearing;

(3) the transcript of the testimony taken at the hearing and the exhibits entered into evidence;

(4) any letters, statements, petitions or comments;

(5) any admissions, agreements or stipulations;

(6) a statement of matters officially noticed;

(7) offers of proof, objections thereto and rulings thereon; and

(8) proposed findings of fact, conclusions of law and exceptions, if any.

§645-6.11 Evidence and Burden of Proof

(a) All evidence submitted must be relevant. However, other legal rules of evidence observed in a court of law need not be strictly applied. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.

(b) Although relevant, evidence may be excluded if its value as proof is substantially outweighed by the potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicative evidence.

(c) Where a part of a document is offered as evidence by one party, any party may offer the entire document as evidence.

(d) Whenever possible, an object which is the subject of testimony shall be exhibited at the hearing. It shall 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.

(e) Each witness shall be sworn or make affirmation before testifying. Opening, closing and other unsworn statements are not evidence but shall be considered as arguments bearing on evidence.

(f) The applicant shall have the burden of demonstrating by a preponderance of the relevant evidence that the proposed activity will be in compliance with all applicable laws.

(g) The burden of proof to sustain a motion shall be on the party making the motion.

(h) All decisions, determinations or orders shall be made upon consideration of the entire record and as supported by substantial evidence.

§645-6.12 Official Notice

(a) The hearing officer or the commission may take official notice of a fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified in generally accepted references prior to or following the close of the hearing record.

(b) If the hearing officer or the commission intends to take official notice of a material fact not appearing in the hearing record and of which judicial notice could not be taken, every party shall be given notice and an opportunity to dispute the fact and its materiality.

§645-6.13 Communication with the Hearing Officer or the Commission in Absence of Other Parties (Ex Parte Rule)

(a) At all times following the determination to conduct a public hearing, no party shall, directly or through a representative, communicate with the hearing officer, the commission, or any member of the commission in connection with any issue without providing notice and an opportunity for all parties to participate.

(b) At all times following the determination to conduct a public hearing, the hearing officer, the commission, or any member of the commission shall not, directly or through a representative, communicate with any party in connection with any issue without providing notice and an opportunity for all parties to participate; provided, however, that any party may ask for a clarification of procedures from the commission, and the hearing officer, the commission, or any member of the commission may request aid and advice from any member or employee of the commission other than the staff acting as a party to the case.

(c) Nothing herein shall preclude counsel to the commission from giving legal advice to the commission, regardless of whether the counsel to the commission is involved in the presentation by the staff of a case which involves a commission decision.

§645-6.14 Payment of Hearing Costs

(a) Within 30 days of the last day of the hearing, the applicant shall pay for the cost of:

(1) physical accommodations, if not held in commission facilities;

(2) publishing any required notices; and

(3) any necessary stenographic transcriptions.

(b) The hearing officer may require that the applicant post a bond or other acceptable financial guarantee for the costs of the hearing. Such guarantee shall be provided to the commission prior to commencing the hearing, or the hearing will be adjourned until the guarantee is made available.

(c) There shall be no charge to the applicant for the services of the hearing officer designated by the commission to conduct the hearing, unless otherwise agreed.

(d) 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.

§645-6.15 Final Decision

(a) The final decision of the commission may include a ruling upon any matter brought before or decided by the hearing officer, except for those matters for which an interim appeal is provided under sections 645-6.4(f) and 645-6.6(d) of this Subpart. The commission's decision shall be made after the official closing of the hearing record and shall be mailed to the applicant and the applicant's attorney of record (if any) by certified mail and to all other parties by ordinary mail.

(b) The commission's decision shall be made upon consideration of the report and the complete record, supported by substantial evidence, and shall be in writing stating the reasons for the action taken. Where applicable, the commission shall take into account any FEIS prepared for the proposed project, and shall include a statement of findings pursuant to SEQR.

§645-6.16 Joint Hearings

(a) 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, they shall be consolidated into a single public hearing.

(b) If the commission is the lead agency for purposes of SEQR, the permit hearing may be consolidated with any hearing on the DEIS.

§645-6.17 Special Provisions

(a) Any time period specified in this Subpart may be extended for good cause by written mutual consent of the applicant and the commission.

(b) At any time prior to issuing the final decision on the application, the hearing officer or the commission may direct that the hearing record be reopened. This may be done to secure additional information or date, or to consider significant new evidence or major permit application alterations.

(c) Tape recording or televising of a hearing for rebroadcast is prohibited by section 52 of the Civil Rights Law.

(d) Unless otherwise specified in this section, all notice and papers connected with a hearing may be served by ordinary mail.