N.Y. Environmental Conservation Law § 19-0509: Order or determination; burdens of proof

§ 19-0509. Order or determination; burdens of proof.

1. After due consideration of the written and oral statements, the

testimony and arguments that shall be submitted under the provisions of

section 19-0507 or, upon default in appearance of the respondent on the

return day which shall be specified in the notice given as provided in

section 19-0505 the commissioner may issue and enter such final order,

or make such final determination as he shall deem appropriate under the

circumstances, and he shall notify the respondent thereof in writing by

registered mail.

2. Any such order may require immediate cessation of any activity in

contravention of such codes, rules and regulations.

3. In connection with determining the appropriate remedy, the

commissioner shall consider evidence received at such hearing relating

to the adequacy and practicability of various means of complying with

such codes, rules and regulations and the financial ability of the

respondent so to comply. If the commissioner finds that immediate

compliance would be impossible or impracticable either because no

adequate or practical means of compliance is known or because of

financial inability, his order shall establish the reasonable time or

times within which the required steps, both intermediate and final, are

to be taken. The burden of proving impossibility, impracticability or

financial inability shall be upon the person claiming the same.

4. As to all other issues in proceedings before the commissioner or

his designee with respect to any alleged violation of any code, rule or

regulation which shall have been promulgated by the department pursuant

to this article, the burden of proof shall be upon the commissioner.