6 CRR-NY 624.7NY-CRR

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 6. DEPARTMENT OF ENVIRONMENTAL CONSERVATION
CHAPTER VI. GENERAL REGULATIONS
PART 624. PERMIT HEARING PROCEDURES
6 CRR-NY 624.7
6 CRR-NY 624.7
624.7 Discovery.
(a) Prior to the issues conference.
Discovery is limited to what is afforded under Part 616 of this Title (access to records). In the absence of extraordinary circumstances the ALJ will not grant petitions for further discovery. This provision does not alter the rights of any person under Part 616 of this Title nor does it limit the ability of any party to seek disclosure after the issues conference.
(b) Without permission of the ALJ.
Within 10 days after service of the final designation of the issues any party has the right to serve a discovery demand upon any other party demanding that party provide:
(1) documents, in general conformance with CPLR 3120(a)(1)(i);
(2) a list of witnesses to be called, their addresses, and the scope and content of each witness's proposed testimony, and the qualifications and published works of each, in general conformance with CPLR 3101(d)(1), except that disclosure of fact witnesses as well as expert witnesses may be demanded;
(3) an inspection of property, in general conformance with CPLR 3120(a)(1)(ii), except that drilling and other intrusive sampling and testing is not provided as of right;
(4) a request for admission, in general conformance with CPLR 3123; or
(5) lists of documentary or physical evidence to be offered at the hearing.
(c) By permission.
With permission of the ALJ, a party may:
(1) obtain discovery prior to the issues conference;
(2) use discovery devices from the CPLR not provided for in subdivision (b) of this section;
(3) submit late requests for discovery or vary the time for responding to requests; and
(4) access real property in the custody or control of another for the purpose of conducting drilling or other sampling or testing. In such instance, all parties must be given notice of such activities and be allowed to observe and to take split samples or use other specified methods of verification.
(d) 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 submitted within 10 days of the discovery demand and must be accompanied by an affidavit of counsel, or by the moving party or other authorized representative 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 discovery demand may apply to the ALJ to compel disclosure. 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.
(e) Prefiled testimony.
The ALJ may require the submission of prefiled written testimony for expert witnesses. Such testimony must be attested to at the hearing and the witness must be available to be cross-examined on the testimony, unless otherwise stipulated by the parties and directed by the ALJ. Whenever the ALJ requires the submission of prefiled testimony, the testimony must provide, or must be accompanied by a technical report which provides, a full explanation of the basis for the views set forth therein, including data, tables, protocols, computations, formulae, and any other information necessary for verification of the views set forth, as well as a bibliography of reports, studies and other documents relied upon. Upon 10 days notice (which time may be shortened or extended by the ALJ) the party submitting prefiled testimony may also be required to make available all raw data, well logs, laboratory notes, and other basic materials, as well as all items on the bibliography provided. Whenever prefiled testimony is not required, any party may demand, from any other party or the department propounding an expert witness, all backup information that would be required in connection with prefiled testimony.
(f) Subpoenas.
Consistent with the CPLR, any attorney of record in a proceeding has the power to issue subpoenas. A party who is not represented by an attorney admitted to practice in New York State 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. A subpoena must give notice that the ALJ may quash or modify the subpoena pursuant to the standards set forth under CPLR article 23. 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.
(g) 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.
6 CRR-NY 624.7
Current through December 31, 2020
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