Guide to Enforcement Hearings
About This Guide
This guide was written to help you understand the enforcement hearing procedure used by the New York State Department of Environmental Conservation (DEC). It explains the hearing process from when the charges are made to the Decision by the Commissioner. While this guide is helpful to understanding the hearing process, it does not substitute for the legal rules governing the hearing. These rules are cited throughout this guide and you are urged to consult the rules for more detailed and precise information. Also, this guide and the rules are no substitute for consultation with your attorney.
What is an enforcement hearing?
An enforcement hearing is the means by which DEC resolves charges of violation of:
- the state's Environmental Conservation Law (ECL);
- DEC rules and regulations; and
- the terms of any permit, certificate or order issued by DEC.
The enforcement hearing determines whether violations have occurred and, if so, what to do about them.
How are these hearings conducted?
Enforcement hearings are conducted according to "Uniform Enforcement Hearing Procedures" which are set out in Part 622 (link leaves DEC's website) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York
Who participates in a DEC enforcement hearing?
Typical participants (or "parties") are DEC staff and one or more persons who are charged with violations. The DEC staff act as prosecutors. Persons who are charged with violations are called "Respondents" because they respond to the charges against them.
Who conducts the hearing?
All environmental enforcement hearings are conducted by an Administrative Law Judge (ALJ) assigned through DEC's Office of Hearings and Mediation Services. The ALJ is an impartial person designated by the Commissioner of Environmental Conservation who independently evaluates the evidence.
How is an enforcement hearing started?
An enforcement hearing starts with the DEC staff serving a notice of hearing and complaint upon a Respondent. The notice of hearing tells the Respondent the enforcement action has begun. The complaint tells the Respondent the violations alleged by DEC staff. It also tells the Respondent what penalties or actions are sought (6 NYCRR 622.3).
Are all enforcement hearings started the same way?
No. While most are started by serving a notice and complaint, other methods include a motion for order without hearing or a summary abatement or suspension order.
Motion for order without hearing
Unlike the complaint, the motion for order without hearing is premised on the assertion that the facts surrounding the alleged violation are not in dispute. It includes affidavits and other documentation tending to prove the charges. A granted motion means the facts found constitute violations (6 NYCRR 622.12)
Summary Abatement and Summary Suspension Orders
Summary Abatement Orders and Summary Suspension Orders require cessation or suspension of an activity determined to be injurious to the people of the state prior to the holding of a hearing (6 NYCRR 622.14) A hearing is held after the Order is issued. The results of the hearing will determine whether the Order should continue or be modified.
What do I do if I receive a Department complaint?
Read the complaint to determine what is charged. Read the notice of hearing for procedural instructions. Decide whether you need to retain an attorney. While you are entitled to an attorney's representation, DEC will not provide an attorney for you, and will not pay your attorney's fees.
If you decide to represent yourself, you should consult the Department's enforcement hearing regulations for specific directions.
How do I respond to the complaint?
A written answer to the charges must be filed with the DEC staff. Your answer will specify which allegations you admit, which ones you deny, and which ones you can't answer based on the information you have (6 NYCRR 622.4) You must include as part of your answer any affirmative defenses you may have. Affirmative defenses are those matters you assert in your defense. They are those reasons why you think your claim should be considered in your favor. They should be supported by facts or the law. They can be factual issues not appearing in the complaint. For example, if you claim you are exempt from obtaining a permit that DEC staff say you need, that claim must be part of your answer. Your answer must include all defenses you will make at the hearing; otherwise you may be precluded from presenting them. Part of your answer should also include a statement of any mitigating circumstances. Mitigating circumstances, if proven, may lessen the harshness of any relief that is ultimately granted. For example, the degree of cooperation with the DEC staff can be considered in lessening any penalty.
When do I serve my answer?
You must mail or deliver your answer to the DEC staff attorney within 20 days of receiving the complaint. You should seek any extensions you need before the 20 days expire. Requests for extensions should first be made to the DEC staff attorney who issued the complaint. If an extension is denied, you may contact the Chief Administrative Law Judge (ALJ) whose address is listed at the end of this booklet. It is important to file your answer on time. Failure to do so may cost you your right to a hearing and may make you responsible for civil penalties or remedial work that is authorized by law and requested in the complaint.
What if the complaint is unclear?
You have a right to a more definite statement if the complaint is so vague or ambiguous that you cannot reasonably be expected to answer it. You may request a more definite statement of the complaint within 10 days of receiving it. Make your request first to the DEC staff attorney who issued the complaint. If the request is denied, you may contact the Chief ALJ. If your motion is denied by the Chief ALJ or the ALJ assigned to your case, you will have another 10 days to provide your answer. If your motion is granted, the DEC staff will serve an amended complaint within 15 days. Your response will then be due in 20 days from receipt of the new, more definite complaint (6 NYCRR 622.4)
Can the complaint and answer be changed after they are issued?
Yes. Amendments can be made to the complaint and answer. With certain exceptions, amendments require permission of the ALJ assigned to the case or the Commissioner. Amendments that unfairly disadvantage (or "prejudice") another party will not be allowed (6 NYCRR 622.5)
How do I settle charges against me?
Charges may be settled by discussions with the DEC staff attorney. These discussions may occur informally by telephone or letter or at a pre-hearing conference you would be directed to attend.
When will a pre-hearing conference be scheduled?
The notice of hearing or notice of pre-hearing conference will inform you of the date, time and place of a pre-hearing conference scheduled by DEC staff. You must attend the conference on the date set in the notice or some other date agreed to by DEC staff. If you do not attend you lose your right to a hearing.
What is the purpose of a pre-hearing conference?
The purpose of the pre-hearing conference is to resolve, define and clarify issues prior to the hearing. You or the DEC staff may make proposals to settle the case and avoid the time and expense of a hearing. Any agreement or settlement that you reach will be tentative until put in writing and signed by you and the DEC representatives. The settlement you sign is called an 'Order on Consent' or consent order. This order may impose upon you certain obligations to pay a civil penalty, to do certain work, or to submit certain plans. The consent order is a contract. If you do not obey its terms, that itself is a violation for which you may be later charged.
Other than settling the case, what else could happen at a pre-hearing conference?
The DEC staff may modify or even drop some or all of its charges based on what you tell them and any evidence you may be able to present. Even where charges are not dropped or are otherwise settled by agreement, you should have a better understanding of the charges and how the DEC staff intend to prove them. This will help you prepare your own defense for hearing.
How do I learn about DEC staff's case against me?
You learn the case through a process called 'disclosure' or discovery (6 NYCRR 622.7). The law generally provides for full disclosure of all evidence that is relevant to the prosecution or defense of a case. Any party may have disclosure from another party so long as the information sought is relevant to the hearing issues. The law makes exceptions to what can be disclosed. Privileged information, such as an attorney's work product and, with certain exceptions, materials prepared in anticipation of hearing are protected and cannot be disclosed.
How is disclosure carried out?
The simplest way is by asking for information from the DEC attorney. This can be done informally by speaking with the DEC attorney. A more formal method of disclosure is a "demand for inspection" and "production of documents" (6 NYCRR 622.7) . The demand is made directly by the party requesting the documents to the person alleged to have them. For instance, Respondents may request copies of DEC reports documenting an inspection of their property, or copies of written statements they previously submitted to DEC representatives. There are other forms of disclosure such as depositions and written interrogatories. These involve asking and answering questions under oath. These forms of disclosure are seldom used because they are time-consuming. The ALJ has the authority to grant or prohibit their use.
What if I receive a demand for documents?
You must supply the requested documents within 10 days unless you request and are granted a protective order. You need to ask for the protective order from to the ALJ assigned the case or in the event no ALJ is assigned, to the Chief ALJ.
What is a protective order?
A protective order restricts or denies disclosure. It is granted to protect privileged documents, prevent unreasonable annoyance, expense, embarrassment, disadvantage or to prevent prejudice to the person receiving the disclosure demand. Before you request a protective order, you should try to work out your concerns with the party who made the demand. If you can't, an affidavit must accompany your motion for a protective order reciting why the good faith efforts to resolve the dispute failed (6 NYCRR 622.7)
What if I make a demand for disclosure, but get no response?
If no response is made to your demand and no protective order has been issued, the ALJ can require compliance at your request. If the other party fails to comply with the ALJ's directive, the ALJ can exclude the requested material from the hearing record and conclude that it would be unfavorable to the party that did not disclose it (6 NYCRR 622.7[c])
When is the case ready for hearing?
The case is ready for hearing when a statement of readiness is filed by the DEC staff with the Office of Hearings and Mediation Services (6 NYCRR 622.9) . The readiness statement indicates the case is ready for further processing before the ALJ and the Commissioner. The ALJ assigned to the case will set the date and place for hearing. The place is usually in the DEC regional office in the area where the alleged environmental problem occurred.
What if I want the hearing date changed?
You should first try to get the DEC staff to agree to a new date. If agreed by mutual consent, the hearing can be adjourned by the ALJ. If DEC staff does not agree to your request, you can ask the ALJ for an adjournment well in advance of the hearing. Your request should be in writing and include the reason you are requesting an adjournment and the other dates you are available. A copy must be sent to the DEC attorney as well. A telephone conference between you and the DEC attorney and the ALJ can be used also.
What if I fail to appear?
You waive your right to a hearing if you were properly served with the notice and complaint, and you fail to appear (6 NYCRR 622.15) . Your failure to appear constitutes a default, which may make you liable for civil penalties, remedial work, or other action requested by DEC staff in its complaint. Respondents should be careful not to default because of its serious consequences.
Who will be at the hearing?
The assigned ALJ will be there, as will the DEC staff attorney. The parties attend with any witnesses they want to have testify. In most cases there will be a stenographic court reporter who makes a word-for-word record of what is said at the hearing. In some cases there is no stenographer, and a tape recorder is used instead.
What is the hearing procedure?
DEC hearing procedures are similar to those used in the civil courts (6 NYCRR 622.10). Opening statements, if necessary, explain DEC's position followed by the Respondent's position. After giving opening statements each party presents its case to the ALJ. The DEC has the burden of proving its charges. It will proceed first, followed by the Respondent. At the end of the hearing the ALJ may give each party an opportunity to make closing statements. Sometimes they are given at the hearing. Sometimes they are submitted later in writing. The closing statement is each party's argument about what was proven and how the case should be decided.
How do the parties present their cases to the ALJ?
The parties present their cases primarily through the testimony of witnesses. All witnesses are sworn under oath by the ALJ. First the witness answers questions by the party calling him or her. This is called direct examination. Then the witness answers questions from the other parties. This is called cross-examination and is done to bring out information not provided during the direct examination, to test the truthfulness and credibility of the witness, to test the accuracy and reliability of the witness's perception of events, and to probe the bases of expert opinion. Parties may also present and support their cases through the production of documents or objects called "exhibits". They are usually presented by a witness who is familiar with them and who can explain what they are and mean. In some cases they are received simply upon the agreement of the parties, or based on some written certification that they are authentic.
How do I get copies of documents submitted at hearing?
A general rule is that copies of documents offered at the hearing must be made available to the other party by the party offering the documents. In many instances you will already have seen the material offered by the DEC attorney or already have copies of it. You will need to supply copies of your material to the DEC attorney unless they already have copies of it. You can also request a copy of the stenographic transcript, at your expense, from the court reporter. One copy of the transcript may be made available to you for review at the Regional Office during normal business hours by asking the ALJ.
How do I ensure my witnesses and documents will be at the hearing?
Each party has the obligation to gather the people and documents it wants to present. You should first ask if a person would be willing to testify on your behalf. If necessary, the parties may use subpoenas to compel witnesses to appear and documents to be produced on the hearing date. A party's attorney may issue a subpoena. A party not represented by an attorney may request a subpoena from the ALJ or the Chief ALJ if no ALJ has been assigned the case. It is the party's responsibility to serve the subpoena and to pay for any related costs. The ALJ has the authority to "quash" or invalidate the subpoena should the person subpoenaed believe it should be nullified. All motions to quash should be made before the ALJ. Subpoenas for documents are handled much the same way except the ALJ may limit or restrict the subpoena for documents.
If I have no attorney, will the ALJ assist me at hearing?
The ALJ can explain the hearing procedure to you but cannot advise you on what to do. The ALJ cannot be an advocate of your position and must remain impartial. Respondents make their own decisions about whether they will testify and what evidence they will offer. If a Respondent wants to testify but has no attorney, the ALJ will provide the Respondent with an opportunity to make a statement under oath. The ALJ may also ask questions to clarify what a witness has said.
What should a witness know about testifying?
Witnesses should always tell the truth. They should listen carefully to questions and respond to them directly. If they do not understand a question, they should ask for clarification. If they cannot answer a question, they should say so. If a party objects to a question, they should wait for the ALJ's ruling before answering. Finally, they should always speak loudly, slowly and clearly, as a record is being made of their testimony.
How does the ALJ control the hearing?
ALJs have broad authority to maintain hearing order and efficiency (6 NYCRR 622.10). The ALJ controls the hearing by ruling on motions and requests that are made by the parties. For instance, one party may object to certain evidence as irrelevant to the hearing issues. If the ALJ sustains the objection, the evidence is excluded from the hearing record. If the ALJ overrules the objection, the evidence is admitted.
Are there restrictions on how information is passed to the ALJ?
Yes. Communications to and from the ALJ are regulated by a prohibition on "ex parte" contact (6 NYCRR 622.16). This means that ALJs cannot discuss the merits of a case with any of the parties without providing an opportunity for all parties to participate. If the communication is written, all parties must be sent a copy of the correspondence. Likewise, the parties may not discuss the merits of the case with the Commissioner except on notice to all other parties. Parties may confer among themselves at any time without notice.
How do I challenge an ALJ's ruling?
Any ALJ's ruling may be appealed to the Commissioner at the end of the hearing by motion or as part of a closing statement (6 NYCRR 622.10) . Also, during the hearing itself in very limited circumstances the Commissioner may review an ALJ's ruling on the Commissioner's own initiative or upon the request of a party. A party's appeal of the ALJ's ruling must demonstrate that the failure to decide its appeal immediately (6 NYCRR 622.6[e]) would unduly disadvantage one of the parties or would result in significant inefficiency in the hearing process. If the Commissioner decides to hear the appeal, all parties will have an opportunity to be heard. The hearing will continue, unless the ALJ or the Commissioner adjourn it, until the appeal is decided.
What is the standard of proof?
The DEC staff has the burden to prove its charges. The Respondent has the burden to prove its affirmative defenses. Parties must prove their case by a preponderance of the evidence. This means that their evidence must be more credible and convincing that the other side's evidence.
How is a final Decision made?
After the hearing ends the ALJ conducts a careful, impartial review of the testimony, the hearing exhibits, and the parties' written submissions. The ALJ weighs the evidence and makes findings of fact, conclusions and recommendations. These are written in a hearing report that is submitted to the Commissioner along with the hearing record. The Commissioner may then decide the case immediately or may send the hearing report to the parties for their comments. The Commissioner's final decision may accept, modify, or reject the ALJ's determinations. The decision is made in the form of an order which is then served upon the parties. The order may do such things as: affirm or dismiss charges against a Respondent; assess penalties or other authorized sanctions; direct abatement of a condition or restoration of a natural resource; and/or require the provision of financial security, pending the completion of remedial work (6 NYCRR 622.18).
Can the Commissioner's decision be appealed?
Yes. All of the Commissioner's decisions may be appealed to the state courts pursuant to proceedings under Article 78 of the Civil Practice Law and Rules.
Is there a public record of Commissioner's decisions?
Yes. Copies of the Commissioner's Decision and order and the accompanying ALJ's report are available through the Office of Hearings and Mediation Services, whose address appears below. The weekly Environmental Notice Bulletin carries notices of enforcement Orders issued by the Commissioner after hearing. Copies of the Orders after hearing may be obtained by writing or calling DEC, Division of Environmental Enforcement, 625 Broadway, 14th Floor, Albany, New York, 12233-5500, telephone (518) 402-9507. Requests for copies in excess of 7 pages will be charged at $.25 per page. Copies may also be browsed on this Website from the Hearings and Decisions page.
Can the public attend enforcement hearings?
Yes. All enforcement hearings are open to the public. However, the public is prohibited from recording or televising for rebroadcast the adjudicatory hearing by Section 52 of the New York State Civil Rights Law.
General information about the hearing process or the status of any enforcement case that has been forwarded to the Office of Hearings and Mediation Services may be obtained by contacting either Louis A. Alexander, Assistant Commissioner, or James T. McClymonds, Chief Administrative Law Judge at the Office of Hearings and Mediation Services. See the contact information on the right side of this page.