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Part 658: Hearing Procedures-Water Pollution Control

Contents:

Sec.

§658.1 Applicability.

The provisions of this Part apply to proceedings, particularly hearings, under and pursuant to the provisions of article 12 of the Public Health Law.

§658.2 Definitions.

Whenever used in this Part, unless otherwise expressly stated, or unless the context or subject matter requires a different meaning, the following terms shall have the respective meanings hereinafter set forth or indicated:

(a) Act. The term "act" means the provisions of article 12 of the Public Health Law and any legislation supplementary thereto and amendatory thereof.

(b) Commissioner. The term "commissioner" means the Commissioner of Environmental Conservation of the State of New York.

(c) Department. The term "department" means the Department of Environmental Conservation of the State of New York.

(d) Hearing. The term "hearing" means that part of the proceeding which involves the submission of evidence including notices, stipulations and consents.

(e) Hearing officer. The term "hearing officer" means the person duly designated by the commissioner as his representative for the purpose of conducting a hearing pursuant to article 12 of the Public Health Law, and includes the plural of such term.

(f) Party. The term "party" includes the State Department of Environmental Conservation and all persons designated as petitioner or respondent in any proceeding under article 12 of the Public Health Law.

(g) Person. The term "person" means any individual, public or private corporation, political subdivision, government agency, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever.

(h) Petitioner. The term "petitioner" means any person not previously heard in connection with the making of a final determination and order by the commissioner and who within 20 days after service upon him of a copy of a notice, order or determination of the commissioner, elects to submit and file a petition with the department under and pursuant to the provisions of section 1243 of the Public Health Law.

(i) Pollution. The term "pollution" means any pollution or discharge subject to abatement under and pursuant to the provisions of article 12 of the Public Health Law.

(j) Respondent. The term "respondent" means a party proceeded against under and pursuant to the provisions of article 12 of the Public Health Law, and includes the plural of such term.

(k) Waters or waters of the State. The term "waters" or "waters of the State" means lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the State of New York and all other bodies of surface or underground water, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface or underground waters), which are wholly or partially within or bordering the State or within its jurisdiction.

(l) Water Resources Commission. The term "Water Resources Commission" means the Water Resources Commission created by section 410 of the Conservation Law.

§658.3 Notice of Hearing.

(a) The notice of hearing shall specify the time, date and place of the hearing and the fact that it is a public hearing.

(b) The notice of hearing, if accompanied by a complaint, may incorporate any part thereof by reference.

(c) Except in case of emergency as provided by section 1242 of the Public Health Law, the notice of hearing shall specify a date for the hearing not earlier than 20 days after the service of the notice.

(d) The notice of hearing may contain therein a notice of motion for a summary order to be made upon the return day, in which case it shall be accompanied by supporting proof. If upon the return day contrary proof be not adduced by affidavit or otherwise relating to a material issue, the hearing officer shall forthwith submit his report and findings of fact to the commissioner who will summarily issue such order or make such determination as the facts and circumstances of the case require.

(e) The notice of hearing, if not accompanied by a complaint, shall include a statement of the charges upon which the proceeding was instituted, setting forth the nature of the alleged violation or violations in plain and concise statements and in consecutively numbered paragraphs, each paragraph containing as far as practicable, a single allegation. The charges may be stated alternatively. A copy of any writing which is attached to the notice of hearing shall be deemed a part thereof for all purposes.

§658.4 Pleadings.

(a) A complaint may be served with the notice of hearing. Any allegation thereof not denied in a verified answer or stricken out or precluded on motion or negated by an inconsistent allegation in a reply or bill of particulars may be found as fact or provide the basis for a finding of fact.

(b) Prior to or on the return day of the notice of hearing, the respondent shall file, in triplicate, with the commissioner an answer signed by the respondent or his attorney; provided, however, that the commissioner or the hearing officer may order that the hearing be held without requiring an answer or other response.

(c) Such answer may contain a statement of the facts which constitute the grounds of defense, and may admit, deny or explain each of the allegations of the charges as set forth and refer to the same by paragraph number, unless the respondent is without knowledge, in which case the answer may so state.

(d) The answer may incorporate therein a statement setting forth the methods, practices and procedures, if any, which are being taken to prevent discharges of pollutants into the waters of the State or the sewer or sewage disposal system which ultimately empties into said waters, provided such statement consists only of allegations of fact. A separate statement insofar as it may be factual shall be deemed a pleading concurrent in time with the answer.

(e) Allegations of new matter in a verified pleading subsequent to the complaint will be deemed admitted unless denied in a subsequent pleading. Allegations of new matter in an unverified pleading subsequent to the complaint will be deemed traversed.

(f) The hearing officer in his discretion may order service of any additional pleading or pleadings upon his own initiative or upon the application of any party. All pleadings so ordered shall be verified.

(g) All pleadings shall conform as nearly as practicable with the Civil Practice Law and Rules.

(h) Unless otherwise ordered, any pleading subsequent to the answer shall be served within 10 days after service of the pleading to which it is responsive.

(i) A party may serve upon any other party an itemized written demand for a verified bill of any particulars of a pleading, such bill to be furnishd within 10 days.

(j) The answer may contain a waiver of hearing, in which case there shall be attached to the answer (1) an offer to enter into a stipulation or consent order, and (2) a proposed stipulation of facts which if agreed to by all the parties with the approval of the hearing officer shall become part of the record of the hearing.

(k) The admission, in the answer or by failure to file an answer, of all the material allegations of fact contained in the charges shall constitute a waiver of hearing. Upon such admission of facts, the hearing officer, without further investigation or hearing, shall prepare his report, findings of fact, conclusions and recommendations.

§658.5 The Hearing Officer.

(a) No hearing officer shall be designated as such who (1) has any pecuniary interest in any matter or business involved in the proceedings, (2) is related within the third degree by blood or marriage to any party to the proceedings, or (3) has participated in the investigation proceeding or in the development of the evidence to be introduced.

(b) The hearing officer shall conduct the hearing in a fair and impartial manner.

(c) Subject to review by the commissioner as may be provided by law or by these rules, the hearing officer shall have power to:

(1) rule upon motions and requests;

(2) set the time and place of hearing, adjourn the hearing from time to time and indicate the place of hearing;

(3) administer oaths and affirmations;

(4) issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers and other documentary evidence;

(5) summon and examine witnesses and receive evidence;

(6) take or order the taking of depositions;

(7) admit or exclude evidence;

(8) hear argument on facts or law;

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

(d) Upon being notified that a hearing officer declines or fails to serve, or in the case of death, resignation or removal, on motion of any party or on his own initiative, the commissioner may designate a successor hearing officer, who may continue with the proceedings.

(e) The designation of a hearing officer shall be in writing and filed in the department.

§658.6 Appearances.

(a) Any party to a hearing may appear in person and with counsel.

(b) Any person appearing on behalf of a party in a representative capacity may be required to show his authority to act in such capacity.

(c) If any party, after being duly notified, fails to answer or appear at the hearing, he shall be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election to present his evidence in whole or in part, in the form of affidavits or by oral testimony before the hearing officer, subject to the discretion of the hearing officer.

(d) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the findings of fact, final determination and order, and to proceed otherwise in any manner prescribed by law.

(e) It shall not be necessary for a respondent or his representative to physically appear on the return day of the notice of hearing if the respondent shall have served a verified answer or if he shall have served a notice of motion addressed to the complaint and the hearing officer shall have set a time for hearing such motion subsequent to the return day.

(f) After all pleadings are served and all motions addressed to pleadings and all motions for summary orders have been decided and resolved, the hearing officer shall set a date for the hearing of any issues remaining and notify all parties of such date and of the time of day and place of the hearing by regular mail not less than 10 days prior to such hearing date. Unless the hearing officer shall direct otherwise, the hearing shall proceed on the date so set and noticed, and any issue in which an absent party has the burden of proof shall be deemed resolved against him.

(g) The hearing officer may open a default or relieve any party of the consequences of any default upon a showing which would be required for the granting of comparable relief in an action or special proceeding.

§658.7 Adjournments.

(a) An application for adjournment shall not be granted except for good cause and unless written request is presented therefor to the hearing officer in advance of the hearing.

(b) In the event a request for an adjournment is made for the first time at the hearing, the hearing shall not be deemed to have been adjourned unless the request is granted by the hearing officer and is duly noted on the record.

(c) Adjournments when granted shall be to a time, day and place certain.

§658.8 Consolidation; Severance; Non-joinder and Mis-joinder of Parties.

(a) When a proceeding involving common questions of fact affecting a particular location or area of pollution is pending before the hearing officer, the hearing officer, upon his own initiative or upon motion of a party, may order a joint hearing of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary delay.

(b) In furtherance of convenience or to avoid prejudice, the hearing officer may order a severance of the hearing and may order separate hearings in respect to all the issues or of any separate issue.

(c) Non-joinder of a party who should be joined in the proceeding may be a ground for dismissal of a hearing without prejudice unless the hearing officer allows the hearing to proceed without such party.

(d) Mis-joinder of parties is not a ground for dismissal of the charges. Parties may be added or dropped by the hearing officer, on motion of any party or on his own initiative at any stage of the hearing and upon such terms as may be just.

(e) The hearing officer may order any hearing against a party severed and proceed with it separately.

§658.9 Intervention.

(a) At any time after the institution of a proceeding and before it has been submitted to the commissioner for final determination and order, the commissioner or the hearing officer may, upon a verified petition in writing and for good cause shown, permit a person to intervene therein as a party.

(b) The petition of any person desiring to intervene as a party shall state with preciseness and particularity: (1) the petitioner's relationship to the matters involved, (2) the nature of the material he intends to present in evidence, (3) the nature of the argument he intends to make, and, (4) any other reason that he should be allowed to intervene.

§658.10 Presentation of Evidence.

(a) The department shall arrange for the presentation of evidence concerning the allegations in the notice of hearing and in the pleadings, and the party or parties discharging any matter causing or contributing to the pollution.

(b) Each witness shall, before testifying, be sworn or make affirmation.

(c) When necessary, in order to prevent undue prolongation of the hearing, the hearing officer may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses, or the amount of corroborative or cumulative testimony.

(d) The rules of evidence shall not be strictly applied; provided, however, the hearing officer shall exclude irrelevant, immaterial or unduly repetitious evidence.

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

(f) The hearing officer may take official notice of statutes of the United States or of the State of New York and of duly promulgated regulations of United States agencies or agencies of the State of New York.

(g) The hearing officer may take official notice of a material fact not appearing in the evidence in the record, but any party excepting thereto prior to the conclusion of the hearing if such fact be taken notice of during the hearing, or a party who shall make written application therefor at any time prior to 10 days after service of notice of findings apprising him of such noticed fact, shall be afforded an opportunity to show the contrary.

(h) Unless the hearing officer orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination, he may be required to specify the data and other criteria supporting the opinion.

(i) 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, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the hearing officer 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 shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.

(j) 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.

(k) A statement signed by an officer or a deputy of an officer having legal custody of specified official records of the United States or of any State, territory or jurisdiction of the United States, 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, provided that the statement is accompanied by a certificate that legal custody of the specified official records belongs to such person, which certificate shall be made by a person described in rule 4540 of the Civil Practice Law and Rules of the State of New York.

(l) All maps, surveys and official records affecting real property, which have been on file in the State in the office of the register of any county, any county clerk, any court of record or any department of the City of New York for more than 10 years, are prima facie evidence of their contents.

(m) 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.

(n) Oral argument may be permitted by the hearing officer within his discretion and shall be reported as part of the record unless otherwise ordered.

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

(p) Where the testimony of a witness refers to a statute, or a report or document, the hearing officer shall, after satisfying himself of the identity of such statute, report or document, determine whether the same shall be produced at the hearing and physically be made a part of the record or shall be incorporated in the record by reference.

(q) No evidence shall be received unless it be relevant to and probative of an issue defined by the pleadings or be probative of an allegation contained in the notice of hearing.

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

§658.11 Motions and Requests.

(a) All motions and requests shall be submitted to the commissioner except that those made during the course of a hearing shall be submitted to the hearing officer or may be stated orally and made a part of the record.

(b) The submission of any motion, request, objection or other question to the commissioner prior to the time that the hearing officer's report and findings of fact are submitted to the commissioner shall be at the discretion of the hearing officer.

(c) The hearing officer is authorized to rule upon all motions and requests filed or made prior to the submission of his report and findings of fact to the commissioner. The commissioner will rule upon all motions and requests submitted after that time.

(d) Within eight days after service of any pleading, statement of position, or bill of particulars, a party may move to strike out any matter, allegation or defense therein as sham, scandalous, repetitious, frivolous, redundant, or otherwise prejudicial or insufficient in law or may move to make the pleading more definite and certain or to require that the allegations thereof be separately stated and numbered. The party so moved against may serve an amended pleading within six days after service of a notice of such motion or within such time as the hearing officer shall direct after the resolution of such motion, if any part of the relief moved for be granted and it shall appear to him that, in the interests of substantial justice, service of an amended pleading should be allowed.

(e) If it shall appear to the hearing officer after argument or submission of a motion noticed pursuant to subdivision (d) of section 658.3 hereof, or a motion to strike as sham, frivolous or insufficient in law pursuant to subdivision (d) of this section, in the notice of which motion a summary order has been requested that, upon all the papers and proof submitted, the cause of action or defense alleged by the moving party shall be established sufficiently so that a court would be warranted as a matter of law in directing judgment in favor of the moving party pursuant to rule 3212 of the Civil Practice Law and Rules, the hearing officer will report to the commissioner his recommendation that an order granting total or partial relief be granted. Upon refusal of the commissioner to issue an order determining the proceeding, any remaining triable issues shall be remanded to the hearing officer for trial.

§658.12 Request for Stipulation of Facts.

(a) At any time after the service of the notice of hearing and the joining of issue, the hearing officer or any party may demand either on the record at the hearing or by motion in writing in advance of the hearing, that the opposing party stipulate as to facts not in dispute or which fairly should not be in dispute.

(b) If the opposing party refuses without reasonable and just cause to stipulate as to facts not in dispute or which fairly should not be in dispute, the facts and evidence of the proposed stipulation shall be shown with particularity and by numbered paragraphs. The request or motion shall contain adequate references to the sources of the matter set forth, and where such sources are in the possession of the moving party or under his control, the motion shall also show that the opposing party has had and has reasonable access thereto. Where there is disagreement with respect to any paragraph, either in whole or in part, or where the disagreement takes the form merely of a variance in the statement of the facts or evidence, the response shall show the basis for the disagreement including references to pertinent sources. Where the truth and authenticity of facts or evidence is not disputed, an objection on the ground of materiality or relevance may be noted but is not to be regarded as just cause for refusal to stipulate. Where motion is made in writing, proof of service of the moving papers and response shall be submitted with the original papers to the hearing officer.

(c) The hearing officer shall consider the request for stipulation of facts and the response thereto, and shall rule on such motion or request in respect to whether the facts and evidence covered in said request or motion should not be accepted as established for the purposes of the hearing.

§658.13 Stipulations and Consent Orders.

(a) At any time prior to the issuance and service of the notice of hearing in any proceeding, the commissioner, in his discretion, may enter into a stipulation with a prospective respondent, whereby the latter admits the material facts and agrees to discontinue the acts or practices which are violative of the act. Such stipulation shall be admissible as evidence of such acts and practices in any subsequent proceeding against such person before the commissioner.

(b) At any time after the issuance and service of a notice of hearing, the commissioner, in his discretion, may allow a respondent to consent to an order and the filing thereof. In so consenting, the respondent must submit for filing in the record, a stipulation or statement in which he admits at least those facts necessary to the commissioner's jurisdiction and agrees that an order may be entered against him.

(c) Upon a record composed of the notice of hearing and the stipulation or agreement consenting to the order, the commissioner may enter the order consented to by a respondent, which shall have the same force and effect as an order after hearing.

(d) An agreement between parties or their attorneys relating to any matter in a proceeding other than one made between counsel on the record of the hearing is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and filed in the department.

§ 658.14 Shortened Procedure.

(a) Whenever it appears to the hearing officer that the hearing can be more expeditiously handled under the informal procedure provided for in this section, he shall suggest to the parties that they consent to the use of such procedure. Parties are free to consent to such procedure if they choose. Declination of consent will not affect or prejudice the rights or interests of any party.

(b) The request that the shortened procedure herein provided be used need not originate with the hearing officer; any party may address a request to the hearing officer asking that the shortened procedure be used.

(c) The hearing officer, in his suggestion to the parties, shall fix a short period within which the parties may indicate their consent to the shortened procedure. At the end of such period, the hearing officer shall notify the parties that the shortened procedure will or will not be used.

(d) Within 10 days after receipt of notice that the shortened procedure will be used, the department shall submit to the hearing officer, in triplicate, in support of the charges contained in the notice of hearing, an opening statement of the facts. A copy of such document shall be served by the department on the respondent.

(e) Within 10 days after receipt of the department's opening statement, the respondent shall submit to the hearing officer, in triplicate, in support of his answer, an answering statement of facts.

(f) Within 10 days after receipt of a copy of the respondent's answering statement, the department may submit to the hearing officer, in triplicate, a statement in reply, which shall be confined strictly to replying to the facts and arguments set forth in the answering statement.

(g) As used in this section, the term "statement" includes (1) statements of fact signed and sworn to by persons having knowledge of those facts; (2) documents submitted as proof of the alleged facts, if any, which documents shall be properly identified by verified statements in the statement submitted or otherwise authenticated in such a manner that they would be admissible in evidence at a hearing under the rules in this Part; and, (3) briefs containing argument to sustain the contentions of the party submitting the statement. When practicable, the documents which constitute the record of any transaction in dispute should be made a part of the statement.

(h) Any facts stated in the statement must be sworn to before a person authorized to administer oaths by a person who states in the affidavit that he has actual knowledge of the facts. Except under unusual circumstances, which shall be set forth in the statement and affidavit, any such person shall be one who would appear as a witness if an oral hearing were held.

(i) The original of each document must show the signature, capacity, and impression seal or notarial stamp of the officer administering the oath and the date thereof. Copies must bear a notation that the original shows the data required in this respect.

(j) In addition to, or in lieu of, statements herein provided for, the parties may submit to the hearing officer stipulations of fact signed by the parties or their representatives. Such stipulations shall become a part of the record. The stipulation must be submitted to the hearing officer within 10 days after notice that the shortened procedure will be used; or, if the department's opening statement is filed, within 10 days after the submission of such statement; or, if an answering statement is submitted, within 15 days after the submission thereof; or, if a statement in reply is submitted, within 15 days after the submission thereof.

(k) The hearing officer may, in his discretion, grant an extension of time in respect to the submission of statements and stipulations.

(l) Failure to submit, within the time prescribed, any statement required or authorized under this section shall constitute a waiver of the right to submit such statement or stipulation. In such case, the hearing officer may prepare his report, findings of fact and recommendations and the commissioner may make the final determination and order upon the evidence contained in the record at the time of such failure to submit and file, except that no determination, other than dismissal of the proceeding without prejudice, shall be made if the department fails to submit an opening statement of the facts.

(m) Except as otherwise may be directed by the hearing officer, the submission of the department's statement in reply, or if the department has not submitted a reply, the submission of the respondent's answering statement, shall conclude the presentation of evidence. The hearing officer shall thereupon submit his report, findings of fact and recommendations, and the same procedure shall be followed thereafter as in proceedings where an oral hearing has been held.

§658.15 Record of the Hearing.

(a) Testimony given and other proceedings had at a hearing shall be reported verbatim. A transcript of such report shall be part of the record and the sole official transcript of the hearing.

(b) The record of the hearing shall include: the notice of hearing, answer and reply if any; motions and requests submitted, and rulings thereon; the transcript of the testimony taken at the hearing, together with the exhibits submitted and filed therein; any statements submitted and filed under the shortened procedure; stipulations, if any; proposed findings of fact, conclusions and recommendations of the hearing officer; and briefs as may have been submitted and filed in connection with the hearing.

(c) A copy of the record of the proceedings of said hearing shall be filed with the department.

(d) Any party to the proceeding may obtain a certified copy of the transcript of the hearing or a part thereof from the hearing reporter, upon the payment of his fees allowed by law therefor.

§658.16 the Hearing Officer's Report and Findings.

(a) As soon as practicable after the close of the hearing, the hearing reporter shall transmit to the hearing officer the transcript of the testimony and exhibits introduced in evidence at the hearing.

(b) The hearing officer, within a reasonable time after receipt of the record of the hearing, shall prepare, upon the basis of the record, and shall submit to the commissioner and file with the department, his report, findings of fact, conclusions and recommendations.

§658.17 Final Determination and Order.

(a) As soon after the receipt of the hearing officer's report, findings of fact, conclusions and recommendations as practicable, the commissioner shall make a final determination based upon the record submitted to him.

(b) The final determination shall be embodied in a final order which may provide for:

(1) the dismissal of the charges;

(2) assessment of penalties as provided by the provisions of section 1250 of the Public Health Law;

(3) direction for abatement or prevention of pollution of the waters or discontinuance of the discharge of sewage, industrial wastes or other wastes which contravene the standards established for any waters of the State;

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

(5) any determination which shall be deemed appropriate by the commissioner under the circumstances.

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

(d) Any person not previously heard in connection with the making of a determination, or order, within 20 days after service upon him of a copy of a notice, order or determination of the commissioner, may file a petition with the department alleging that the said order or determination caused or causes him damage by the invasion of, or interference with, a private right or privilege particularly appertaining to him.

(e) The commissioner shall grant a hearing to such petitioner, in accordance with these rules, and shall make a final determination and order, which shall be conclusive unless an appeal is taken therefrom.

(f) A copy of the final determination and order shall be served on all parties and a copy shall be filed with the Water Resources Commission.

§658.18 Service of Papers.

All notices, papers and intermediary process connected with a hearing, other than the first notice of hearing or notice of hearing addressed to a party for the first time and the order containing the final determination of the commissioner, may be served by ordinary mail.

§658.19 Waiver of Rules.

Any of the foregoing rules may be waived by stipulation of the parties concerned with the consent of the commissioner. If a hearing has been convened, such a waiver or stipulation shall require the consent of the hearing officer. The commissioner, or the hearing officer acting in his behalf, may waive any of the aforesaid rules; provided, however, he shall not waive those rules pertaining to the service of notice of hearing and service of the final order and determination.