New York Codes, Rules and Regulations › Title 10 - DEPARTMENT OF HEALTH › Chapter III - Public Water Supplies › Subchapter A - Municipalities, Districts, Companies, Institutions › Part 128 - New York City › Subpart 128-2 - Standards And Procedures For Regulated Activities And Noncomplying Regulated Activities › Section 128-2.9 - Hearings on cease and desist orders

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Any person who receives a cease and
					 desist order may request a hearing on the order by submitting a petition in
					 writing to the commissioner and to the Office of Administrative Trials and
					 Hearings (OATH) within seven days of receipt of the cease and desist order. The
					 petition for a hearing shall state the name and address of the petitioner and
					 shall include a short and plain statement of the matters to be adjudicated,
					 identifying the activity that is the subject of the order, the location of the
					 activity, and the date of the cease and desist order. A copy of the order shall
					 be attached to the petition. In addition, a completed OATH intake sheet shall
					 be included with the petition. Blank intake sheets are available from the
					 department.
(b) Upon receipt of the
					 petition for a hearing, OATH shall schedule a hearing promptly in the district
					 of the department where the activity that is the subject of the order allegedly
					 occurred, and at a time and date which shall not exceed 15 days from the date
					 of receipt by OATH of the petition for a hearing unless the parties and the ALJ
					 agree to another location and date, except that hearings may be held at the
					 department's offices in Valhalla, New York for petitions relating to regulated
					 activities in the east of Hudson watershed and at the department's offices in
					 Kingston, New York for petitions relating to regulated activities in the west
					 of Hudson watershed. Notice of such hearing shall be provided in writing to the
					 petitioner and to the department.
(c) A petition for a hearing shall not stay
					 compliance with the cease and desist order, and it shall continue to be the
					 duty of the petitioner to discontinue the activity pursuant to the terms of the
					 order. Failure to do so shall be a violation of the order and these rules and
					 regulations.
(d) At the hearing,
					 the petitioner shall have the burden of proving that the activity that is the
					 subject of the order does not come within the provisions of sections
					 128-2.1(a)(5)
					 and
					 128-2.7(a)(5) 
					 of this Subpart.
(e) The failure of
					 the petitioner to appear at the time, date and place set forth in the notice of
					 hearing shall constitute a default of the right to a hearing on the cease and
					 desist order. The department shall provide a notice of default in writing to
					 the petitioner within five days of the petitioner's failure to
					 appear.
(f) The hearing shall be
					 held before an ALJ. The ALJ shall cause a record of the hearing to be made, and
					 shall make a report to the commissioner within 10 days of the close of the
					 hearing record, setting forth the appearances, the relevant facts and arguments
					 presented at the hearing, findings of fact and conclusions of law, and a
					 recommendation as to whether the order should be continued, modified or vacated
					 and the reasons therefor. Transcripts of the record of the hearing shall be
					 made available at the petitioner's request and expense.
(g) Within 10 days of receipt of the
					 recommendation of the ALJ, the commissioner may continue, vacate, or modify the
					 order. If the commissioner does not act, the ALJ's recommendation shall be
					 deemed adopted.
(h) The results of
					 the hearing on the cease and desist order shall be without prejudice to the
					 right of a person to apply for an approval or variance for a regulated activity
					 under these regulations, and shall also be without prejudice to the authority
					 of the department or any other person to take action on account of any
					 violation of law, rule, regulation or order arising out of the events,
					 situations or circumstances which led to the issuance of the order.