2010 New York Code
ENV - Environmental Conservation
Article 15 - WATER RESOURCES
Title 9 - (15-0901 - 15-0909) ADMINISTRATIVE PROCEDURES FOR ARTICLE 15
15-0903 - Hearing procedure.

§ 15-0903. Hearing procedure.
    1.  The  provisions  of this title shall not apply to applications for
  permits, requests for permit renewals and modifications,  or  to  permit
  modification,  suspension  or  revocation  proceedings  initiated by the
  department where any of such actions involve title 5, 15 or 27  of  this
  article.
    2.  Whenever  a public hearing is to be held pursuant to this article,
  the notice of such hearing shall  be  published  in  such  newspaper  or
  newspapers  as  the department shall deem appropriate, once in each week
  for not more than four weeks. At least one publication  shall  be  in  a
  newspaper  of  general  circulation in the area affected. Notice thereof
  shall specify that on a date therein named, the  department  will  cause
  such  hearing  to  be  held  at  such  place  and time as it may specify
  therein, for the purpose of receiving evidence and  arguments  from  all
  persons  and  public  corporations  that may be affected by the proposed
  permit or project and shall have filed  timely  notices  of  appearance.
  The  public  notice  shall  specify the last day, not more than ten days
  prior to the day specified for the public hearing, on which  notices  of
  appearance  may  be  filed with the department. Notices of appearance in
  opposition to the permit or project  shall  recite  in  the  notice  the
  interest of the person or public corporation filing such notice, and the
  specific  grounds  of  objection  to the permit or project. In the event
  that no notice of appearance in opposition to  the  proposed  permit  or
  project  is filed within the time specified, the department may dispense
  with the public hearing and shall proceed to consider  and  examine  the
  application,  petition, maps, plans, proofs, arguments and other matters
  submitted in support  of  the  proposed  permit  or  project;  provided,
  however,  that nothing herein contained shall authorize the denial of an
  application unless and  until  the  applicant  or  petitioner  has  been
  afforded  an opportunity to present proof and argument in support of the
  application.   The notice of hearing  shall  also  specify  the  subject
  matter  of  the  hearing  in  such  detail  as the department shall deem
  necessary.
    3. Conduct of hearing shall be as follows:
    a. All hearings shall be public except as to  those  matters  where  a
  public  hearing  may  be  dispensed  with  pursuant to the provisions of
  subdivision 1 of this section.
    b.  The  hearings  herein  provided  for  may  be  conducted  by   the
  commissioner  or any employee of the department to whom the commissioner
  shall delegate the power and authority to conduct  such  hearings  as  a
  hearing officer in the name of the department at any time and place.
    c.  In  such  hearings,  the  hearing  officer may administer oaths to
  witnesses and may  issue  subpoenas  in  the  name  of  the  department,
  requiring  the  attendance  and  giving  testimony  by witnesses and the
  production of books, papers and  other  documentary  evidence  for  such
  hearings.
    d. The record, or summary thereof, of the proceedings of such hearings
  shall  be made and filed with the department. The department, on its own
  motion or if requested to do so, may cause to be taken  and  filed  with
  the  department  a  full  stenographic  transcript  in  duplicate of the
  testimony presented at the hearing. The cost of such  department  copies
  shall  be paid by the applicant. The stenographer shall, upon payment of
  his fees by a person requesting the same, furnish a copy of the whole or
  any part of the transcript to such person.
    e. The department may, for the purpose of such a hearing, provide  for
  the  taking  of  depositions  of  witnesses  before  any  member  of the
  department, or any  person  who  may  be  designated  hereunder  by  the
  department to hold hearings. In such case such member, employee or other

person may administer oaths to the witnesses whose depositions are to be
  taken. Each deposition shall be reduced to writing and subscribed by the
  deponent  and  shall  be  filed  with  the department prior to the final
  adjournment of the hearings.
    f.  The  provisions of subdivision y of section 71-0503, applicable to
  investigations by the department and a direction to testify made by  the
  department,  shall  apply to hearings and investigations and a direction
  to testify or produce evidence made by a hearing officer  at  a  hearing
  conducted pursuant to the provisions of this article.
    g.  The  department  and hearing officers designated by it pursuant to
  this article shall not be bound by the laws of evidence in  the  conduct
  of  hearing  proceedings,  but every decision and order shall be founded
  upon competent, material evidence which is substantial in  view  of  the
  entire record.
    h.  No  factual  information or evidence other than that in the record
  shall be considered in arriving at a decision in a  case.  However,  all
  evidence,  including  records  and  documents  in  the possession of the
  department of which it desires to avail itself, may be offered and  made
  a  part  of the record in the case. All such documentary evidence may be
  received in the form of copies  or  excerpts,  or  by  incorporation  by
  reference.
    i.  The  applicant and any person who has filed a notice of appearance
  shall have the right of cross-examination of witnesses who testify,  and
  shall have the right to submit rebuttal evidence.
    j.  The  department may take notice of judicially cognizable facts and
  in addition may take notice of general, technical, or  scientific  facts
  within  its  specialized  knowledge.  Parties  shall  be notified either
  before or during the hearing, or by reference in preliminary reports  or
  otherwise,  of  material  so  noticed,  and  they  shall  be afforded an
  opportunity to contest the facts so noticed. The department may  utilize
  its  experience,  technical competence, and specialized knowledge in the
  evaluation of evidence presented to it.
    4. The department shall, upon  any  application  submitted  to  it  or
  initiated  on  its  own  motion, render its decision thereon in writing,
  including or accompanied by findings of fact, and whenever  required  by
  this   article,  by  statutory  determinations.  The  original  of  such
  decision, together with all maps, plans  and  other  papers  or  records
  relating  thereto,  shall be filed and kept on file in the department. A
  copy of the decision shall be delivered or mailed  to  the  attorney  of
  record  of  the  applicant  and  of  each  person  who filed a notice of
  appearance,  or  to  the  applicant  or  such  person  directly  if  not
  represented by an attorney.