N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 1100-8.4

Current through Register Vol. 46, No. 53, December 31, 2024

Section 1100-8.4 - Hearing participation

(a) Participation in the adjudicatory hearing may be as a full party or as amicus, depending upon the demonstrated compliance with the criteria set forth in subdivisions (b) through (e) of this section. Nonparties who wish to have their comments recorded shall be permitted to submit oral or written comments during the public comment portion of the proceedings, or as otherwise provided by the ALJ, as set forth in this Part. Such public statements shall not constitute evidence in the adjudicatory hearing but may be used by the ALJ as a basis to inquire further of all parties and potential parties at the issues determination stage.

(b)Mandatory parties. The applicant and assigned Office Staff are full parties to the proceeding. Other State and local agencies are full parties to the proceeding if they were consulted during the preapplication or application process, or if issues related to the jurisdiction or authority of those agencies are joined for adjudication in the rulings on issues provided for in section 1100-8.3(c) of this Part.

(1)Applicant's statement of issues: No later than the date set in the combined notice provided for in section 1100-8.2(d) of this Part for the filing of petitions for party status, or an earlier date set in the exercise of the ALJ's discretion, the applicant shall file and serve on Office Staff a statement of issues the applicant intends to raise with respect to any determination of the Office. The applicant shall serve the statement of issues on persons filing petitions for party status within five (5) days of such filing. The applicant's statement of issues shall:

(i) identify an issue for adjudication which meets the criteria of section 1100-8.3(c) of this Part; and

(ii) present an offer of proof specifying the witness(es), the nature of the evidence the applicant expects to present and the grounds upon which the assertion is made with respect to that issue.

(c)Other parties. By the date set in the combined notice provided for in section 1100-8.2(d) of this Part, a person desiring party status shall file a petition in writing which includes the requirements of either paragraphs (1) and (2) or paragraphs (1) and (3) of this subdivision.

(1) Required contents of petition for party status:

(i) Identification of the proposed party together with the name(s), address, telephone number and email address of the person or persons who will act as representative of the party;

(ii) Statement of the petitioner's interest related to the standards and conditions established by the ORES for the siting, design, operation, and construction of the project;

(iii) Identification of any interest relating to statutes administered by other State agencies or the ORES relevant to the project;

(iv) Statement as to whether the petition is for full party or amicus status;

(v) Identification of the precise grounds for opposition or support.

(2) Additional contents required for petitions for full party status:

(i) Identification of an adjudicable issue(s) which meets the criteria set forth in section 1100-8.3(c) of this Part; and

(ii) An offer of proof specifying the witness(es), the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect each issue identified.

(3) Additional contents required for petitions for amicus status:

(i) identify the nature of the legal or policy issue(s) to be briefed which meets the criteria of section 1100-8.3(c) of this Part; and

(ii) provide a statement explaining why the proposed party is in a special position with respect to that issue.

(4) Inadequate petition. If a potential party fails to file a petition in the form set forth in this subdivision, the ALJ may deny party status or may require additional information from the petitioner.

(5) Supplementation of petitions. Where the ALJ finds that a potential party did not have adequate time to prepare its petition for party status, the ALJ shall provide an opportunity for supplementation of the petition.

(d)Statement of compliance with local laws and regulations. No later than the date set in the combined notice provided for in section 1100-8.2(d) for the filing of petitions for party status, or an earlier date no less than sixty (60) days from the issuance of the combined notice set in the exercise of the ALJ's discretion, any municipality, political subdivision or an agency thereof that has received notice of the filing of an application shall file and serve on Office Staff and the applicant a statement indicating whether the proposed facility is designed to be sited, constructed and operated in compliance with applicable local laws and regulations, if any, concerning the environment, or public health and safety. The applicant shall serve the municipality's statement on persons filing petitions for party status within five (5) days of such filing. Any municipality, political subdivision or an agency thereof that proposes to adjudicate any issues related to a facility's compliance with local laws and regulations shall file a petition for party status as provided for in subdivision (c) of this section, and shall include the statement of compliance with local law and regulation in the petition.

(e)Late filed petitions for party status.

(1) Petitions filed after the date set in the combined notice provided for in section 1100-8.2(d) of this Part shall not be granted except under the limited circumstances outlined in paragraph (2) of this subdivision.

(2) In addition to the required contents of a petition for party status, a petition filed late shall include the following in order to receive any consideration:

(i) A demonstration that there is good cause for the late filing;

(ii) A demonstration that participation by the petitioner will not significantly delay the proceeding or unreasonably prejudice the other parties; and

(iii) A demonstration that participation will materially assist in the determination of adjudicable issues raised in the proceeding.

(f)Rulings on party status. Rulings on party status shall be made by the ALJ after the deadline for receipt of petitions for party status and responses thereto and shall be set forth in the rulings on issues provided for in section 1100-8.3(c) of this Part.

(1) Full party status. The ALJ's ruling of entitlement to full party status shall be based upon:

(i) A finding that the petitioner has filed an acceptable petition pursuant to subdivisions (c)(1) and (2) of this section;

(ii) A finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and

(iii) A demonstration of adequate interest related to the standards and conditions established by the ORES for the siting, design, operation, and construction of the project.

(2) Amicus status. The ALJ's ruling of entitlement to amicus status shall be based upon:

(i) A finding that the petitioner has filed an acceptable petition pursuant to subdivisions (c)(1) and (3) of this section;

(ii) A finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and

(iii) A finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.

(g)Rights of parties.

(1) A full party has the right to:

(i) Engage in and conduct disclosure of any other party to the proceeding;

(ii) Participate at the hearing in person or through an authorized representative;

(iii) Present relevant evidence and cross-examine witnesses of other parties;

(iv) Present argument on issues of law and fact;

(v) Initiate motions, requests, briefs or other written material in connection with the hearing, and receive all correspondence to and from the ALJ and to and from all other parties which is circulated to the parties generally;

(vi) Appeal adverse rulings of the ALJ; and

(vii) Exercise any other right conferred on parties by this Part or the SAPA.

(2) A party with amicus status has the right to file a brief and, at the discretion of the ALJ, present oral argument on the issue(s) identified in the ALJ's ruling on its party status but does not have any other rights of participation or submission.

(h)Loss of party status. Upon determining that the party or its representative has failed to comply with the applicable laws, rules or directives of the ALJ and has substantially disrupted the hearing process or prejudiced the rights of another party to the proceeding, the ALJ may revoke the party status of the offending party.

N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 1100-8.4

Transferred from 900-8.4 New York State Register July 17, 2024/Volume XLVI, Issue 29, eff. 6/26/2024