The burden of proving total dependency is on the claimants. Fitz v. Industrial Comm. (1960), 10 Wis.2d 202, 205, 102 N.W.2d 93; Neumann v. Industrial Comm. (1950), 257 Wis. 120, 122, 42 N.W.2d 445; Beem v. Industrial Comm. (1943), 244 Wis. 334, 337, 12 N.W.2d 42. In Burrows v. Industrial Comm. (1944), 246 Wis. 152, 154, 16 N.W.2d 434, it is stated:
It is well settled that in proceedings before commissions, as in courts, the burden of proof rests upon complainants. Utah Const. Co. v. Berg, 68 Ariz. 285, 205 P.2d 367; Montana Citizens Freight Rate Ass'n v. Board of Railroad Com'rs of Montana, 128 Mont. 127, 271 P.2d 1024; Commuters' Committee v. Pennsylvania Public Utility Commission, 170 Pa. Super. 596, 88 A.2d 420; Neuman v. Industrial Commission, 257 Wis. 120, 42 N.W.2d 445; City of Norfolk v. Chesapeake O. Ry. Co., 192 Va. 828, 67 S.E.2d 99; Pacific Power Light Co. v. Federal Power Commission, 9 Cir., 111 F.2d 1014; 24 A.B.A.J. 630, 634; 73 C.J.S. Public Administrative Bodies and Procedure § 124; and 42 Am.Jur. Public Administrative Law § 131. See also Rayburne v. Queen, Wyo., 326 P.2d 1108.
In fact the entire statement is permeated with indecisiveness, vacillation and doubt. Such being the fact, it is patently evident from the statement that the board tacitly admits that PASNY did not meet its burden of proving the proposed facility located at the Arthur Kill site would not be "incompatible with health and safety" at least with respect to boiler emissions (Public Service Law, § 142, subd 1, pars [b], [e], cl [i]). It follows, therefore, since PASNY had not met its burden of proof on the boiler emissions issue, that the board erred in granting a certificate of environmental compatibility and public need. If the evidence before a commission (or an administrative hearing board) is such as to raise in the minds of the commission legitimate doubts as to the existence of essential facts, the commission must rule against the application on the ground that the applicant did not sustain his burden of proving to the satisfaction of the commission that the facts were as claimed ( Neumann v Industrial Comm., 257 Wis. 120). The burden cannot be shifted by a commission's adopting premises for a decision not supported by the evidence ( Utah Constr. Co. v Berg, 68 Ariz. 285). It should again be observed that the board reached its ultimate conclusion that the amount of boiler emissions from the facility would have an "acceptably small" impact on the public health not on evidentiary facts, but on the basis that "prudence" suggests that the board assume a risk "somewhere" within the range of risks submitted by the parties in the adversarial hearing. However, the law is settled that the findings of an administrative board may not rest on surmise, conjecture, or speculation (or an assumption) or on the personal opinion of the board ( Matter of Monachino v New York State Liq. Auth., 12 Misc.2d 666, revd on other grounds 6 A.D.2d 378; 73 CJS, Public Administrative Bodies and Procedure, § 126).