N.Y. Environmental Conservation Law § 15-0903: Hearing procedure

§ 15-0903. Hearing procedure.

1. The provisions of this title shall not apply to applications for

permits, requests for permit renewals and modifications, or to permit

modification, suspension or revocation proceedings initiated by the

department where any of such actions involve title 5, 15 or 27 of this

article.

2. Whenever a public hearing is to be held pursuant to this article,

the notice of such hearing shall be published in such newspaper or

newspapers as the department shall deem appropriate, once in each week

for not more than four weeks. At least one publication shall be in a

newspaper of general circulation in the area affected. Notice thereof

shall specify that on a date therein named, the department will cause

such hearing to be held at such place and time as it may specify

therein, for the purpose of receiving evidence and arguments from all

persons and public corporations that may be affected by the proposed

permit or project and shall have filed timely notices of appearance.

The public notice shall specify the last day, not more than ten days

prior to the day specified for the public hearing, on which notices of

appearance may be filed with the department. Notices of appearance in

opposition to the permit or project shall recite in the notice the

interest of the person or public corporation filing such notice, and the

specific grounds of objection to the permit or project. In the event

that no notice of appearance in opposition to the proposed permit or

project is filed within the time specified, the department may dispense

with the public hearing and shall proceed to consider and examine the

application, petition, maps, plans, proofs, arguments and other matters

submitted in support of the proposed permit or project; provided,

however, that nothing herein contained shall authorize the denial of an

application unless and until the applicant or petitioner has been

afforded an opportunity to present proof and argument in support of the

application. The notice of hearing shall also specify the subject

matter of the hearing in such detail as the department shall deem

necessary.

3. Conduct of hearing shall be as follows:

a. All hearings shall be public except as to those matters where a

public hearing may be dispensed with pursuant to the provisions of

subdivision 1 of this section.

b. The hearings herein provided for may be conducted by the

commissioner or any employee of the department to whom the commissioner

shall delegate the power and authority to conduct such hearings as a

hearing officer in the name of the department at any time and place.

c. In such hearings, the hearing officer may administer oaths to

witnesses and may issue subpoenas in the name of the department,

requiring the attendance and giving testimony by witnesses and the

production of books, papers and other documentary evidence for such

hearings.

d. The record, or summary thereof, of the proceedings of such hearings

shall be made and filed with the department. The department, on its own

motion or if requested to do so, may cause to be taken and filed with

the department a full stenographic transcript in duplicate of the

testimony presented at the hearing. The cost of such department copies

shall be paid by the applicant. The stenographer shall, upon payment of

his fees by a person requesting the same, furnish a copy of the whole or

any part of the transcript to such person.

e. The department may, for the purpose of such a hearing, provide for

the taking of depositions of witnesses before any member of the

department, or any person who may be designated hereunder by the

department to hold hearings. In such case such member, employee or other

person may administer oaths to the witnesses whose depositions are to be

taken. Each deposition shall be reduced to writing and subscribed by the

deponent and shall be filed with the department prior to the final

adjournment of the hearings.

f. The provisions of subdivision y of section 71-0503, applicable to

investigations by the department and a direction to testify made by the

department, shall apply to hearings and investigations and a direction

to testify or produce evidence made by a hearing officer at a hearing

conducted pursuant to the provisions of this article.

g. The department and hearing officers designated by it pursuant to

this article shall not be bound by the laws of evidence in the conduct

of hearing proceedings, but every decision and order shall be founded

upon competent, material evidence which is substantial in view of the

entire record.

h. No factual information or evidence other than that in the record

shall be considered in arriving at a decision in a case. However, all

evidence, including records and documents in the possession of the

department of which it desires to avail itself, may be offered and made

a part of the record in the case. All such documentary evidence may be

received in the form of copies or excerpts, or by incorporation by

reference.

i. The applicant and any person who has filed a notice of appearance

shall have the right of cross-examination of witnesses who testify, and

shall have the right to submit rebuttal evidence.

j. The department may take notice of judicially cognizable facts and

in addition may take notice of general, technical, or scientific facts

within its specialized knowledge. Parties shall be notified either

before or during the hearing, or by reference in preliminary reports or

otherwise, of material so noticed, and they shall be afforded an

opportunity to contest the facts so noticed. The department may utilize

its experience, technical competence, and specialized knowledge in the

evaluation of evidence presented to it.

4. The department shall, upon any application submitted to it or

initiated on its own motion, render its decision thereon in writing,

including or accompanied by findings of fact, and whenever required by

this article, by statutory determinations. The original of such

decision, together with all maps, plans and other papers or records

relating thereto, shall be filed and kept on file in the department. A

copy of the decision shall be delivered or mailed to the attorney of

record of the applicant and of each person who filed a notice of

appearance, or to the applicant or such person directly if not

represented by an attorney.