New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter VI - General Regulations › Part 620 - Procedures For Issuance Of Summary Abatement Orders › Section 620.3 - Hearing

Current through Register Vol. 46, No. 28, July 10, 2024
(a) The
				commissioner shall schedule a hearing promptly, at a time and place which the
				commissioner shall determine, not to exceed 15 days from the date when the
				summary abatement order is given. Notice of such hearing shall be served upon
				or otherwise provided to the respondent with the written summary abatement
				order.
(b) At the hearing,
				department staff bears the burden of persuasion on all charges and matters
				affirmatively asserted in the summary abatement order. Department staff may
				meet its burden by submission of the supporting materials that accompanied the
				summary abatement order. At the hearing, department staff may also present
				testimony and evidence that supplements the supporting materials that
				accompanied the summary abatement order. At the hearing, the respondent shall
				have the opportunity to be heard and the burden to produce evidence that such
				condition or activity which is the subject of the summary abatement order does
				not come within the provisions of section
				620.2(a) 
				of this Part. The respondent bears the burden of persuasion regarding all
				affirmative defenses. Both the respondent and department staff shall have the
				right of cross-examination.
(c) The
				respondent may waive, in writing, the hearing provided by law and these
				regulations. The failure of the respondent to appear, at the time, date and
				place set forth in the summary abatement order for a hearing, shall constitute
				a waiver of the requirement that a hearing be held.
(d) The hearing shall be before an
				administrative law judge designated by the commissioner. The ALJ shall cause a
				record of the hearing to be made, and shall make a report to the commissioner
				setting forth the appearances, the relevant facts and arguments presented at
				the hearing, findings of fact and conclusions of law, a recommendation on
				whether the order should be continued, modified or vacated and the reasons for
				this recommendation.
(e) The ALJ
				shall, to the extent practicable, and without prejudice to the respondent's
				right to have a public hearing concerning the issuance of a summary abatement
				order within 15 days from the date the order is given, consolidate the hearing
				on the issuance of the summary abatement order with any hearing to be held on
				account of respondent's violation of the environmental conservation law, or any
				order, rule or regulation issued or promulgated thereunder.
(f) The ALJ shall have the powers and
				authority provided to the presiding officer under the State Administrative
				Procedure Act. The ALJ may receive testimony or statements in written form, if
				the witness is presented to authenticate his or her statement and for
				cross-examination, or if the parties so stipulate.
(g) The record of the hearing may be made by
				a stenographer, by a tape recorder, by other electronic recording device or by
				other means. The ALJ shall cause a typed transcript of the record to be
				prepared for the department's files, but shall not wait for the preparation of
				this transcript before making a report to the commissioner, if so requested by
				the respondent or the commissioner.
(h) The ALJ shall make a report in writing to
				the commissioner within 30 days of the close of the hearing, unless the parties
				agree to an extension of this time.
(i) The provisions of Part 622 of this Title
				(Uniform Enforcement Hearing Procedures) apply to hearings on summary abatement
				orders except to the extent inconsistent with the provisions of this
				Part.