6 CRR-NY 624.8NY-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 624.8
6 CRR-NY 624.8
624.8 Conduct of the adjudicatory hearing.
(a) Order of events.
The ALJ has discretion to determine and adjust the order of events and presentation of evidence, and to establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing will be as follows:
(1) Formal opening.
The ALJ will convene the hearing by opening the record, identifying the applications involved, and making appropriate procedural announcements.
(2) Noting appearances.
The ALJ will call the name of each person who has been granted status as a party.
(3) Opening statements.
Prior to the commencement of the adjudicatory sessions each party will be called upon to offer a brief opening statement of position on the application.
(4) Admission of evidence.
The applicant will present its direct case first and will start by identifying all documents which constitute the application and the DEIS (where applicable) and all supporting documents 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 ALJ's discretion. Cross-examination will be conducted by parties in a sequence to be established by the ALJ, 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 to issues identified in the ALJ's determination following the issues conference.
(5) Close of record.
Closing statements of position will be dealt with in the same manner as opening statements. At the concluding session of the hearing, the ALJ will determine whether to allow the submission of written post-hearing briefs. The hearing record will be officially closed upon the receipt of the stenographic record by the ALJ, the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, conclusions of law, memoranda, and exceptions, if any, by the various parties, whichever occurs last. The ALJ must notify the applicant by certified mail, and all other parties by regular mail, immediately upon official closing of the hearing record.
(6) Where the ALJ permits the filing of briefs, the ALJ will also determine whether replies will be permitted and the schedule for filing. Simultaneous filing will normally be required. A party must give specific reference to the portions of the record, whether transcript or otherwise, relied upon in support of the respective statements of fact made throughout the brief. Briefs will be considered only as argument and must not refer to or contain any evidentiary material outside of the record.
(b) The ALJ.
(1) The ALJ has power to:
(i) rule upon all motions and requests, including those that decide the ultimate merits of the case;
(ii) set the time and place of the hearing, recesses and adjournments;
(iii) administer oaths and affirmations;
(iv) issue subpoenas upon request of a party not represented by counsel admitted to practice in New York State;
(v) upon the request of a party, quash and modify subpoenas except that in the case of a non-party witness the ALJ may quash or modify a subpoena regardless of whether or not a party has so requested;
(vi) summon and examine witnesses;
(vii) establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion pursuant to the procedures set out in section 624.7 of this Part;
(viii) admit or exclude evidence including the exclusion of evidence on grounds of privilege or confidentiality;
(ix) hear and determine arguments on fact or law, except that a purely legal issue involving no factual dispute and which is a matter of first impression or is precedential in nature may be referred to the General Counsel for a determination in accordance with Part 619 of this Title (declaratory ruling) upon motion by any party or upon the ALJ's own initiative;
(x) preclude irrelevant or unduly repetitious, tangential or speculative testimony or argument;
(xi) direct the consolidation of parties with similar viewpoints and input;
(xii) limit the number of witnesses;
(xiii) utilize a panel of witnesses for purposes of direct testimony or cross-examination;
(xiv) allow oral argument, so long as it is recorded;
(xv) take any measures necessary for maintaining order and the efficient conduct of the hearing;
(xvi) take any measures necessary to ensure compliance with SEQRA and UPA not inconsistent with section 624.4 of this Part;
(xvii) in the case of water supply rate disputes, issue directives modifying any incompatible provisions of this Part, consistent with the spirit and intent of these regulations;
(xviii) issue orders limiting the length of cross-examination, size of briefs and similar matters;
(xix) order a site visit, on notice to all parties;
(xx) exercise any other authority available to ALJs under this Part or to presiding officers under article 3 of the SAPA.
(2) Impartiality of the ALJ and motions for recusal.
(i) The ALJ will conduct the hearing in a fair and impartial manner.
(ii) An ALJ must not be assigned to any proceeding in which the ALJ has a personal interest.
(iii) Any party may file with the ALJ a motion in conformance with section 624.6 of this Part, together with supporting affidavits, requesting that the ALJ be recused on the basis of personal bias or other good cause. Such motions will be determined as part of the record of the hearing.
(iv) Upon being notified that an ALJ declines or fails to serve, or in the case of the ALJ's death, illness, resignation, removal or recusal, the Chief ALJ must designate a successor.
(3) The designation of an ALJ as the commissioner's representative must be in writing and filed in the Office of Hearings and Mediation Services.
(c) Appearances.
(1) A party may appear in person or be represented by an attorney licensed in New York State or any other jurisdiction, or by a non-attorney chosen by the party. Any representative of a party who is other than an attorney licensed to practice in New York State must disclose his or her qualifications to the party. Nothing in this paragraph authorizes a non-lawyer to engage in the practice of law.
(2) Any person appearing on behalf of a party in a representative capacity may be required by the ALJ to show his or her authority to act in such capacity and must file a notice of appearance with the ALJ.
(d) Appeals of ALJ rulings.
(1) Any ALJ ruling may be appealed to the commissioner after the completion of all testimony as part of a party's final brief or by motion where no final brief is provided for.
(2) During the course of the hearing, the following rulings may be appealed to the commissioner on an expedited basis:
(i) a ruling to include or exclude any issue for adjudication;
(ii) a ruling on the merits of any legal issue made as part of an issues ruling;
(iii) a ruling affecting party status; or
(iv) any ruling in which the ALJ has denied a motion for recusal;
(v) by seeking leave to file an expedited appeal, any other ruling of the ALJ may be appealed on an expedited basis where it is demonstrated that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. In all such cases, the commissioner's determination to entertain the appeal is discretionary.
(3) A motion for leave to file an expedited appeal must demonstrate that the ruling in question falls within one of the categories set forth in subparagraph (2)(v) of this subdivision.
(4) The commissioner may review any ruling of the ALJ on an expedited basis upon the commissioner's determination or upon a determination by the ALJ that the ruling should be appealable.
(5) Whenever the commissioner grants leave to file an expedited appeal, the parties must be so notified and provided with an opportunity to file a response to the appeal.
(6) Failure to file an appeal will not preclude appealing the ruling to the commissioner after the hearing.
(7) There will be no adjournment of the hearing during appeal except by permission of the ALJ.
(e) Joint hearings.
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, all such hearings will be consolidated into a single public hearing.
(f) If the department is the lead agency for purposes of SEQRA, the permit hearing shall be consolidated with the hearing on the DEIS.
6 CRR-NY 624.8
Current through December 31, 2020
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