New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter X - DIVISION OF WATER RESOURCES › Subchapter A - GENERAL › Article 1 - MISCELLANEOUS RULES › Part 658 - Hearing Procedures-water Pollution Control › Section 658.10 - Presentation of evidence

Current through Register Vol. 46, No. 28, July 10, 2024
(a) The
					 department shall arrange for the presentation of evidence concerning the
					 allegations in the notice of hearing and in the pleadings, and the party or
					 parties discharging any matter causing or contributing to the
					 pollution.
(b) Each witness shall,
					 before testifying, be sworn or make affirmation.
(c) When necessary, in order to prevent undue
					 prolongation of the hearing, the hearing officer may limit the number of times
					 any witness may testify, the repetitious examination or cross-examination of
					 witnesses, or the amount of corroborative or cumulative testimony.
(d) The rules of evidence shall not be
					 strictly applied; provided, however, the hearing officer shall exclude
					 irrelevant, immaterial or unduly repetitious evidence.
(e) Every party shall have the right to
					 present evidence and cross-examine witnesses.
(f) The hearing officer may take official
					 notice of statutes of the United States or of the State of New York and of duly
					 promulgated regulations of United States agencies or agencies of the State of
					 New York.
(g) The hearing officer
					 may take official notice of a material fact not appearing in the evidence in
					 the record, but any party excepting thereto prior to the conclusion of the
					 hearing if such fact be taken notice of during the hearing, or a party who
					 shall make written application therefor at any time prior to 10 days after
					 service of notice of findings apprising him of such noticed fact, shall be
					 afforded an opportunity to show the contrary.
(h) Unless the hearing officer orders
					 otherwise, questions calling for the opinion of an expert witness need not be
					 hypothetical in form, and the witness may state his opinion and reasons without
					 first specifying the data upon which it is based. Upon cross-examination, he
					 may be required to specify the data and other criteria supporting the
					 opinion.
(i) Any writing or record,
					 whether in the form of an entry in a book or otherwise, made as a memorandum or
					 record of any act, transaction, occurrence or event, shall be admissible in
					 evidence in proof of that act, transaction, occurrence or event, if the hearing
					 officer finds that it was made in the regular course of any business and that
					 it was the regular course of such business to make it, at the time of the act,
					 transaction, occurrence or event, or within a reasonable time thereafter. All
					 other circumstances of the making of the memorandum or record, including lack
					 of personal knowledge by the maker, may be proved to affect its weight, but
					 they shall not affect its admissibility. The term business includes a business,
					 profession, occupation and calling of every kind.
(j) Where a public officer is required or
					 authorized by special provision of law, to make a certificate or an affidavit
					 to a fact ascertained, or an act performed by him in the course of his official
					 duty, and to file or deposit it in a public office of the State, the
					 certificate or affidavit so filed or deposited is prima facie evidence of the
					 facts stated.
(k) A statement
					 signed by an officer or a deputy of an officer having legal custody of
					 specified official records of the United States or of any State, territory or
					 jurisdiction of the United States, or of any court thereof, or kept in any
					 public office thereof, that he has made diligent search of the records and has
					 found no record or entry of a specified nature, is prima facie evidence that
					 the records contain no such record or entry, provided that the statement is
					 accompanied by a certificate that legal custody of the specified official
					 records belongs to such person, which certificate shall be made by a person
					 described in rule 4540 of the Civil Practice Law and Rules of the State of New
					 York.
(l) All maps, surveys and
					 official records affecting real property, which have been on file in the State
					 in the office of the register of any county, any county clerk, any court of
					 record or any department of the City of New York for more than 10 years, are
					 prima facie evidence of their contents.
(m) Samples may be displayed at the hearing
					 and may be described for purposes of the record, but need not be admitted in
					 evidence as exhibits.
(n) Oral
					 argument may be permitted by the hearing officer within his discretion and
					 shall be reported as part of the record unless otherwise ordered.
(o) All written statements, charts,
					 tabulations and similar data offered in evidence at the hearing shall, upon a
					 showing satisfactory to the hearing officer of their authenticity, relevancy
					 and materiality, be received in evidence and shall constitute a part of the
					 record.
(p) Where the testimony of
					 a witness refers to a statute, or a report or document, the hearing officer
					 shall, after satisfying himself of the identity of such statute, report or
					 document, determine whether the same shall be produced at the hearing and
					 physically be made a part of the record or shall be incorporated in the record
					 by reference.
(q) No evidence shall
					 be received unless it be relevant to and probative of an issue defined by the
					 pleadings or be probative of an allegation contained in the notice of
					 hearing.
(r) A hearing shall be
					 conducted as nearly as practicable in the manner of a trial by court.