New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter VI - General Regulations › Part 622 - Uniform Enforcement Hearing Procedures › Section 622.2 - Definitions

Current through Register Vol. 46, No. 28, July 10, 2024
Whenever used in this Part, unless otherwise expressly
				  stated, the following terms have the meanings indicated in this section. The
				  definitions in this section are not intended to change any statutory or common
				  law meaning of these terms.
(a)
Administrative law judge
or
ALJ
means the
				commissioner's representative who conducts the hearing.
(b)
Affidavit
means a
				voluntary written declaration or statement of facts made by a declarant with
				personal knowledge of the facts, and confirmed by the oath of the declarant
				before a person having authority to administer the oath, such as a notary
				public. A pleading verified in accordance with CPLR 3020 and 3021 may be used
				as an affidavit of the facts constituting the claim whenever the latter is
				required.
(c)
Affirmation
				of an attorney
means the statement of an attorney admitted to practice
				in the courts of the State, who is not a party to a proceeding, subscribed and
				affirmed by the attorney to be true under the penalties of perjury. An
				affirmation may be served or filed in a proceeding in lieu of and with the same
				force and effect as an affidavit.
(d)
Commissioner
means the
				Commissioner of Environmental Conservation of the State of New York or the
				commissioner's designee.
(e)
CPLR
means the New York State Civil Practice Law and
				Rules.
(f)
Department
means the Department of Environmental Conservation
				of the State of New York.
(g)
Department staff
means those department personnel
				participating in the hearing, but does not include the commissioner, any
				personnel of the Office of Hearings and Mediation Services, the ALJ or any
				person advising or consulting with the commissioner or ALJ.
(h)
Disclosure
means
				disclosure of facts, documents, or other things that are known by or in the
				possession of a person and that are material and necessary in the prosecution
				or defense of the proceeding regardless of the burden of proof.
(i)
ECL
means the
				Environmental Conservation Law.
(j)
Electronically stored information
or
ESI
means any information that is created, stored or utilized with computer
				technology of any type. ESI includes, but is not limited to, word-processing
				files, audio files, video files, spreadsheets, images, emails and other
				electronic messaging information that are stored electronically.
Active
				data
means ESI that is located in a computer's memory or in storage
				media (including servers, desktop or laptop computers, tablets, cellphones,
				hard drives, flash drives, compact discs, digital video discs, and portable
				media players) that is immediately available in the normal course of
				business.
(k)
Evidence
means sworn or affirmed testimony of witnesses, and
				physical objects, documents, records or photographs that tend to prove or
				disprove the existence of an alleged fact.
(l)
Hearing
means that part
				of the proceeding that involves the taking of evidence, examination of
				witnesses, and such other steps as are necessary in the prosecution or defense
				of the proceeding.
(m)
Hearsay
means a statement, other than one made by a witness
				testifying at the hearing, offered into evidence to prove the truth of the
				matter asserted.
(n)
Interrogatories
means written questions regarding the
				proceeding that are served by a party on an adversarial party. Answers to
				interrogatories must be in writing and made under oath.
(o)
Mediation
means a
				voluntary discussion between department staff and respondent concerning the
				violations alleged in an enforcement proceeding, facilitated by an ALJ assigned
				as mediator. The mediation may address some but not all the allegations raised
				in the enforcement proceeding, or involve some but not all
				respondents.
(p)
Motion
means a request for a ruling or an order.
(q)
Office of Hearings and Mediation
				Services
means the office within the department principally
				responsible for conducting adjudicatory hearings and providing mediation
				services.
(r)
Party
means department staff, all persons designated
				respondent and any person granted intervenor status pursuant to section
				622.10(f) 
				of this Part, but does not include the commissioner or the Office of Hearings
				and Mediation Services.
(s)
Permit
means any permit, certificate, license, registration or
				other form of department approval, other than an enforcement order, issued in
				connection with any regulatory program administered by the
				department.
(t)
Person
means any individual, public or private corporation,
				limited liability company, bi-state authority, political subdivision,
				government agency, department or bureau of the State, municipality, industry,
				partnership, association, firm, trust, estate or any legal entity
				whatsoever.
(u)
Proceeding
means an adjudicatory enforcement proceeding before
				an administrative law judge in which a determination of the legal rights,
				duties or privileges of named parties thereto is determined on a record and
				after an opportunity for a hearing.
(v)
Proof of service
means
				an affirmation of an attorney or affidavit if made by any other person
				specifying the papers served, the person served, and the date and manner of
				service, and setting forth facts showing that service was made by an authorized
				person and in an authorized manner.
(w)
Protective order
means
				an order denying, limiting, conditioning or regulating the use of material
				requested through disclosure.
(x)
Relevant
means tending to make the existence of any fact that
				is of consequence to the determination of the proceeding more probable or less
				probable.
(y)
Report
means the ALJ's summary of the proceeding, including
				the ALJ's findings of fact, conclusions of law and recommendations for the
				commissioner's consideration.
(z)
Respondent
means the person or persons charged with one or
				more violations of the ECL or other laws administered by the commissioner,
				rules and regulations promulgated thereunder or any permit or order issued
				thereunder, or a person or persons alleged by department staff to be
				responsible for the relief sought.
(aa)
SAPA
means the State
				Administrative Procedure Act.
(ab)
Service
means the delivery of a document to a person by
				authorized means and, where applicable, the filing of a document with the ALJ,
				the Office of Hearings and Mediation Services or the commissioner.
(ac)
Stipulation
means an
				agreement between two or more parties to a proceeding, and entered into the
				hearing record, concerning one or more issues of fact or law that are the
				subject of the proceeding.
(ad)
Subpoena
means a legal document that requires a person to
				appear at a hearing and testify, to produce documents or physical objects, or
				both.