N.Y. Comp. Codes R. & Regs. tit. 6 § 624.8

Current through Register Vol. 46, No. 43, October 23, 2024

Section 624.8 - Conduct of the adjudicatory proceeding

(a) 'Order of events.' The ALJ has discretion to determine and adjust the order of events and presentation of evidence, and to establish procedures to promote the conduct of a fair and efficient proceeding. In general, the order of events at an evidentiary hearing will be as follows:

(1) Formal opening. The ALJ will convene the evidentiary hearing by opening the record, identifying the applications involved, and making appropriate procedural announcements.

(2) Noting appearances. The ALJ will call the name of each person who has been granted status as a party.

(3) Opening statements. At the discretion of the ALJ, prior to the commencement of the evidentiary hearing each party will be provided with the opportunity to offer a brief opening statement of position on the application.

(4) Admission of evidence. The applicant will present its direct case first and will start by identifying all documents that constitute the application and the DEIS (where applicable) and all supporting documents that are relevant to the issues to be adjudicated. A panel of witnesses may be used for presenting testimony or for cross-examination at the ALJ's discretion. Cross-examination will be conducted by parties in a sequence to be established by the ALJ, which normally will be the sequence in which the parties will present their direct cases. The evidence will be confined to that which is relevant to issues identified in the ALJ's determination following the issues conference.

(5) Close of record. Closing statements of position will be dealt with in the same manner as opening statements. At the concluding session of the evidentiary hearing, the ALJ will determine whether to allow the submission of written post-hearing briefs. The hearing record will be officially closed upon the receipt of the stenographic record by the ALJ, the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, receipt of a summary of substantive comments pursuant to subdivision 621.10(e) of this Title, or the submission of briefs and reply briefs, conclusions of law, memoranda, and exceptions, if any, by the various parties, whichever occurs last. The ALJ will notify the parties in writing, immediately upon official closing of the hearing record.

(6) Where the ALJ permits the filing of briefs, the ALJ will also determine whether replies will be permitted and the schedule for filing. Simultaneous filing will normally be required. A party must give specific reference to the portions of the record, whether transcript or otherwise, relied upon in support of the respective statements of fact made throughout the brief. Briefs will be considered only as argument and must not refer to or contain any evidentiary material outside of the record.

(b) 'The ALJ.'

(1) In proceedings pursuant to this Part, the ALJ has power to:

(i) rule upon all motions and requests, including those that decide the ultimate merits of the proceeding;

(ii) set the time and place of all hearings or issues conferences, recesses and adjournments, including conducting any public comment hearings, issues conferences or evidentiary hearings by video conference, telephone conference or other similar service allowing for attendance from remote locations;

(iii) administer oaths and affirmations;

(iv) issue subpoenas upon request of a party not represented by an attorney admitted to practice in New York State;

(v) upon the request of a party, issue a subpoena duces tecum to be served upon a library, other department or bureau of a municipal corporation or of the State, or an officer thereof, requiring the production of any books, papers or other things;

(vi) upon the request of a party, quash and modify subpoenas except that in the case of a non-party witness the ALJ may quash or modify a subpoena regardless of whether or not a party has so requested;

(vii) summon and examine witnesses;

(viii) establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion pursuant to the procedures set out in section 624.7 of this Part;

(ix) admit or exclude evidence including the exclusion of evidence on grounds of privilege or confidentiality;

(x) hear and determine arguments on fact or law, except that a purely legal issue involving no factual dispute and which is a matter of first impression or is precedential in nature may be referred to the General Counsel for a determination in accordance with Part 619 of this Title (declaratory ruling) upon motion by any party or upon the ALJ's own initiative;

(xi) preclude irrelevant, immaterial or unduly repetitious, tangential or speculative evidence, argument, examination or cross-examination;

(xii) direct the consolidation of parties with similar viewpoints and input;

(xiii) limit the number of witnesses;

(xiv) utilize a panel of witnesses for purposes of direct testimony or cross-examination;

(xv) allow oral argument, so long as it is recorded;

(xvi) take any measures necessary for maintaining order and the efficient conduct of the proceeding;

(xvii) take any measures necessary to ensure compliance with SEQRA and UPA not inconsistent with section 624.4 of this Part;

(xviii) in the case of water supply rate disputes, issue directives modifying any incompatible provisions of this Part, consistent with the spirit and intent of these regulations;

(xix) issue orders limiting the length of cross-examination, the form, length and content of motions and briefs and similar matters;

(xx) order a site visit, on notice to all parties;

(xxi) exercise any other authority available to ALJs under this Part or to presiding officers under SAPA article 3; and

(xxii) when a request for an adjudicatory proceeding is made by an applicant for a permit not governed by the UPA based upon department staff's denial of a permit or permit renewal application, and unless otherwise required by law or unless a significant degree of public interest exists,

('a') limit participation at an evidentiary hearing to department staff and the applicant; and

('b') waive some or all of the provisions of sections 624.3, 624.4, 624.5 and 624.11 of this Part.

(2) Impartiality of the ALJ and motions for recusal.

(i) The ALJ will conduct the adjudicatory proceeding in a fair and impartial manner.

(ii) An ALJ must not be assigned to any proceeding in which the ALJ has a personal interest.

(iii) Any party may file with the ALJ a motion in conformance with section 624.6 of this Part, together with supporting affidavits, requesting that the ALJ be recused on the basis of personal bias or other good cause. A motion requesting recusal will be determined as part of the record of the adjudicatory proceeding.

(iv) Upon being notified that an ALJ declines or fails to serve, or in the case of the ALJ's death, illness, resignation, retirement, removal or recusal, the Chief ALJ must designate a successor within thirty (30) days of being notified.

(3) The designation of an ALJ as the commissioner's representative must be in writing and filed in the Office of Hearings and Mediation Services.

(c) 'Appearances.'

(1) A party may appear in person or be represented by an attorney licensed in New York State or any other jurisdiction, or by a non-attorney chosen by the party. Any representative of a party who is other than an attorney licensed to practice in New York State must disclose the representative's qualifications in writing to the party. Nothing in this paragraph authorizes a nonlawyer to engage in the practice of law.

(2) Any person appearing on behalf of a party in a representative capacity may be required by the ALJ to show and state on the record the person's authority to act in a representative capacity and to file a written notice of appearance with the ALJ.

(3) If there is a change or withdrawal of a party's attorney or authorized representative, the party must provide written notice of the change or withdrawal to the ALJ and the attorneys or authorized representatives of all other parties, or, if a party appears without an attorney or authorized representative, to the party, within ten (10) days of the change or withdrawal.

(d) 'Appeals of ALJ rulings.'

(1)

(i) Any ALJ ruling, except a ruling denying party status, may be appealed to the commissioner after the completion of all testimony as part of a party's final brief or by notice of appeal and appeal where no final brief has been authorized. Where no final brief has been authorized, the appellant must file the notice of appeal and appeal within ten (10) days after service of the written notice that the hearing record is closed pursuant to paragraph 624.8(a)(5) of this Part.

(ii) Any ALJ ruling pursuant to paragraph 624.4(c)(5) of this Part that finally resolves all issues in a proceeding may be appealed to the commissioner by notice of appeal and appeal. The appellant must file the notice of appeal and appeal within ten (10) days of the ALJ's ruling.

(iii) The notice of appeal and appeal must be served on all parties and filed with the commissioner c/o the deputy commissioner for hearings and mediation services within ten (10) days after service of the written notice that the hearing record is closed. Responses to a notice of appeal and appeal must be served on all parties and filed with the commissioner c/o the deputy commissioner for hearings and mediation services within ten (10) days of service of the notice of appeal. One original and three copies of the notice of appeal, appeal and responses must be filed with the commissioner c/o the deputy commissioner for hearings and mediation services. Only the commissioner will determine whether further responsive pleadings after the responses will be allowed.

(2) During the course of the proceeding, in conformance with subdivision 624.6(e) of this Part, the following rulings may be appealed to the commissioner on an interlocutory basis:

(i) a ruling denying party status; or

(ii) any ruling in which the ALJ has denied a motion for recusal; and

(iii) any other ruling of the ALJ that does not finally resolve all issues in the proceeding, by seeking permission to file an interlocutory appeal.

(3) A motion for permission to file an interlocutory appeal, pursuant to subdivision 624.6(e) of this Part, must demonstrate that the failure to decide the appeal on an interlocutory basis would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. In all such cases, the commissioner's determination to consider the appeal on an interlocutory basis is discretionary.

(4) The commissioner may review any ruling of the ALJ on an interlocutory basis upon the commissioner's determination or upon a determination by the ALJ that the ruling should be appealed.

(5) Whenever the commissioner grants permission to file an interlocutory appeal, the parties must be notified. The appellant must be provided the opportunity to file a brief on appeal and the other parties must be provided with the opportunity to file a response to the appeal.

(6) Except for failure to file an interlocutory appeal from a ruling denying party status, failure to file an interlocutory appeal or the denial of permission to file an interlocutory appeal will not preclude an appeal from the ruling to the commissioner after the evidentiary hearing.

(7) The evidentiary hearing and any ruling of the ALJ will not be adjourned or stayed while an appeal or motion for permission to appeal is pending except by permission of the ALJ or the commissioner.

(e) 'Joint adjudicatory proceedings.' A project may require submission of applications for more than one permit, or to more than one government agency, and adjudicatory proceedings may be required for more than one purpose. Whenever practicable, all required proceedings will be consolidated into a single proceeding.

(f) If the department is the lead agency for purposes of SEQRA, the permit hearing proceedings will be consolidated with the hearing on the DEIS.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 624.8

Amended New York State Register September 16, 2020/Volume XLII, Issue 37, eff. 9/16/2020

Adopted New York State Register August 21, 2024/Volume XLVI, Issue 34, eff. 8/21/2024