RULES AND REGULATIONS:Part 645
(Statutory authority: Environmental Conservation Law Sections 8-0113, 43-0107, 43-0125, 71-3303, 71-3305 and 71-3307; State Administrative Procedure Act Section 305)
UNIFORM ENFORCEMENT PROCEDURES
645-4.2 Notice and Complaint
645-4.4 Amendment of Pleadings
645-4.5 Service of Papers
645-4.7 Motions and Requests
645-4.8 Stipulations and Consent Orders
645-4.9 The Hearing
645-4.11 Final Determination and Order
645-4.12 Uniform Appearance Tickets
645-4.13 Summary Abatement
645-4.14 Penalties and Sanctions
645-4.15 Waiver of Rules
645-4.16 Consistency with other Laws
Section 645-4.1 Applicability. This Part shall apply to all civil administrative enforcement proceedings brought by the Commission. Whenever the Commission determines, after investigation, that any person has violated ECL Articles 43 and 71, Title 33, or rules or regulations promulgated thereunder, or any permits, certificates or orders issued by the Commission, the Commission may proceed as provided herein.
Section 645-4.2 Notice and Complaint.
(a) All civil enforcement proceedings shall be initiated by service upon the respondent of a notice of hearing and a complaint or a uniform administrative complaint (UAC). The complaint or UAC shall contain a statement of the legal authority and jurisdiction under which the proceeding is to be held, a reference to the particular sections of the statutes and rules involved, and a short and plain statement of the matters asserted.
(b) The notice of hearing shall specify the time and place of the hearing, and shall set a date for a hearing not earlier than 20 days after service of the notice and complaint. In lieu of a hearing date, a notice of hearing may set a return date not less than seven days after service, at which time a hearing date will be set if the matter is not disposed of at that time.
(c) Service of the notice of hearing and a complaint or a UAC shall be by any method authorized by the CPLR, or by certified mail. Where service is by certified mail, service shall be complete when the notice of hearing and complaint or UAC is received by the respondent.
Section 645-4.3 Answer.
(a) Within 20 days of receipt of the complaint or UAC, but no later than 5 days before the date of the hearing, whichever is shorter, the respondent shall serve upon the Commission an answer, signed by the respondent or the respondent's attorney.
(b) The respondent shall specify in the answer which allegations are admitted, which allegations are denied and which allegations the respondent lacks sufficient information upon which to form an opinion as to the allegation.
(c) The respondent's answer may contain affirmative defenses; in which event the answer shall contain a statement of any facts which constitute the grounds of the affirmative defense.
(d) If the complaint or UAC is so vague or ambiguous that respondent cannot reasonably be required to frame an answer, the respondent may move for a more definite statement within 10 days of receipt of service. If the motion is denied, the respondent shall answer within 10 days or receipt of notice that the motion is denied. If the motion is granted, the Commission shall serve an amended complaint or UAC within 10 days of receipt of notice that the motion is granted, and the respondent shall answer pursuant to subdivisions (a) through (c) of this Section.
(e) The failure to file an answer or the failure by the respondent to appear on the return date or at the hearing shall constitute a default and a waiver of hearing upon proof of service of a notice of hearing and a complaint or a UAC.
Section 645-4.4 Amendment of Pleadings. Any party may amend a pleading at any time prior to the submission of the hearing officer's report to the Commission, by leave of the hearing officer or the Commission on good cause shown.
Section 645-4.5 Service of Papers. All notices, papers and intermediate process connected with a hearing, other than the notice of hearing and complaint or UAC, subpoenas served upon persons who are not a part to the proceeding, and the order containing the final determination of the Commission, may be served by ordinary mail. Except where otherwise specifically provided, service by ordinary mail shall be complete when mailed.
Section 645-4.6 Discovery.
(a) Scope. The scope of discovery shall be governed by the CPLR.
(b) Notice to produce. A party to a hearing under this Part, upon receipt of notice to produce documents and things from any other party, shall furnish all such requested items relevant to the proceeding within 10 days of receipt of such notice.
(c) Protective order. A party who is served with a notice to produce documents and things may move for a protective order within 10 days of receipt of such notice and shall specify his objections thereto. Such order may also be made by the hearing officer on his own initiative. A protective order shall be designed to avoid unnecessary delay of the hearing or to prevent unreasonable annoyance, expense, embarrassment, or prejudice to any party.
(d) Subpoenas. Consistent with the CPLR, any attorney of record in a proceeding under this Part, the Commission, or any person designated by the Commission for this purpose shall have the power to issue subpoenas. A party who is not represented by an attorney may request the hearing officer to issue a subpoena by submitting a petition stating the items or witnesses needed by the party to present its case.
(e) Limits on discovery. Bills of particulars shall be allowed. Depositions and written interrogatories shall only be allowed with leave of the hearing officer where the hearing officer finds their use to be in the interest of justice and where such process is likely to expedite the proceeding.
Section 645-4.7 Motions and Requests.
(a) All motions and requests prior to the hearing shall be submitted in writing to the hearing officer or, where no hearing officer has been designated, to the Commission. Copies of motion papers shall be served upon all parties. Motions made during the course of a hearing may be stated orally and shall be made a part of the record.
(b) The hearing officer shall rule upon all motions and requests prior to the submission of his report to the Commission. The Commission shall rule upon all motions and requests submitted prior to designation of a hearing officer or after receipt of the hearing officer's report.
Section 645-4.8 Stipulations and Consent Orders.
(a) At any time prior to the final determination by the Commission, the Executive Director, with the advice and consent of the counsel to the Commission, may enter into a stipulation to resolve an issue of fact or law pending in a proceeding initiated by the Commission.
(b) At any time, the Commission may enter into a consent order with a respondent, whereby the latter agrees to discontinue the acts or practices which violate ECL, Articles 43 and 71, Title 33, or rules or regulations promulgated thereunder, or any permit, certificate or order issued by the Commission, and provide such other and further relief to which the respondent may agree. Such consent order shall be admissible as evidence to provide the basis for a finding or fact in any subsequent proceeding brought by the Commission against such respondent involving the same or similar violation(s).
Section 645-4.9 The Hearing.
(a) Referral to the Department. All proceedings where the administrative penalty sought by the Commission exceeds $5,000 shall be referred to the Department for processing in accordance with the procedure specified in ECL, Section 71-1709; provided, however, that following the processing of such proceedings, the Commission shall make appropriate determinations and issue an order in lieu of action by the Department.
(b) Hearing officer.
(1) All proceedings where the administrative penalties sought are less than or equal to $5,000 may either be referred to the Department, as provided above, or the Commission may appoint a hearing officer who must be an attorney admitted to practice law in the State of New York, who shall preside over such a hearing and report to the Commission regarding the hearing.
(2) A person may not serve as a hearing officer if such person:
(i) has any financial interest, direct or indirect, in any matter involved in the proceedings;
(ii) is related by blood or marriage to any party;
(iii) has participated in any investigation with respect to the subject matter of the hearing or in the development of evidence introduced at the hearing; or
(iv) has any personal interest in the matter involved in the proceeding.
(3) The hearing officer shall conduct the hearing in a fair and impartial manner.
(4) Subject to review by the Commission upon receipt of the hearing officer's report, the hearing officer shall have power to:
(i) rule upon motions and requests;
(ii) set the time and place of hearing;
(iii) administer oaths and affirmations;
(iv) issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers and other evidence;
(v) summon and examine witnesses;
(vi) admit or exclude evidence;
(vii) hear argument on facts or law;
(vii) do all acts and take all measures necessary for the maintenance of order and efficient conduct of the hearing.
(5) Upon being notified that a hearing officer declines or fails to serve, or in the case of death, resignation or removal of the hearing officer, or on its own initiative, the Commission may designate a successor hearing officer who may continue with the proceeding. Any party may file with the Commission a motion, together with a supporting affidavit, no later than five days prior to the date set for hearing in the notice of hearing, that the hearing officer be removed on the basis of personal bias.
(6) The designation of a hearing officer shall be in writing and filed with the Commission.
(1) A party may appear in person and/or by counsel. If an attorney represents a party, all service of papers not required by law to be served personally upon such party shall be made upon the party's attorney.
(2) Any person appearing on behalf of a party in a representative capacity may be required to show his authority to act in such capacity.
(3) If a party who answers the complaint or UAC fails to appear at the hearing, issues on which that party has the burden of proof shall be resolved against the non-appearing party. The party who is present may elect, subject to the discretion of the hearing officer, to present all or part of his evidence by affidavit rather than oral testimony.
(4) The hearing officer may open a default or relieve any party of the consequences of a default upon good cause shown.
(5) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the final determination and order, and to proceed otherwise in any manner prescribed by law.
(d) Consolidation, Nonjoinder, Misjoinder and Severance.
(1) In a proceeding which involves common questions of fact, the hearing officer, upon his own initiative or upon motion of any party, to avoid unnecessary delay and cost, may order a consolidation of actions or a joint hearing of any or all issues.
(2) Nonjoinder of a necessary party, as necessary party is defined by the CPLR, is a ground for dismissal of the hearing without prejudice, unless the hearing officer, in the interest of justice, allows the hearing to proceed without such party or such party is joined.
(3) Misjoinder of parties is not a ground for dismissal of the hearing. Parties may be added or dropped by the hearing officer, on motion of any party or on his own initiative, at any stage of the hearing and upon such terms as may be just.
(4) The hearing officer, to avoid prejudice or for convenience, may order a severance of the hearing and hear separately any issue or any party to the proceeding.
(1) Each witness shall, before testifying, be sworn or make affirmation.
(2) Prefiled, written testimony may be presented by any party with permission of and subject to the discretion of the hearing officer or may be required upon motion of any party by written directive of the hearing officer. Such permission shall be freely granted in the interest of expediting the proceeding. Prefiled testimony shall be sworn to by the witness and subject to cross- examination.
(3) 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.
(4) The rules of evidence shall not be strictly applied; provided, however, the hearing officer shall exclude irrelevant, immaterial or unduly repetitious evidence and shall give effect to the rules of privilege recognized by law.
(5) Every party shall have the right to present evidence and cross-examine witnesses.
(6) The hearing officer may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the Commission.
(7) 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.
(8) Oral argument may be permitted by the hearing officer within his discretion and shall be recorded.
(9) 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.
(10) Where the testimony of a witness refers to a statute, report or document, the hearing officer shall, after satisfying himself of the identify of such statute, report or document, determine whether the same shall be produced at the hearing and physically made a part of the record or shall be incorporated in the record by reference.
(11) A hearing shall be conducted as nearly as practicable in the manner of a trial in a court of law.
(f) Adjournment. A request for an adjournment of the hearing shall be in writing and submitted to the hearing officer prior to the hearing.
(1) Testimony given and other proceedings had at a hearing shall be recorded verbatim. For this purpose, and consistent with respondent's rights, the Commission may use whatever means it deems appropriate, including but not limited to the use of stenographic transcriptions or recording devices.
(2) The record of the hearing shall include: the notice of hearing, the complaint or UAC and any other pleadings; motions and requests submitted, and rulings thereon; the transcript or recording of the testimony taken at the hearing; exhibits submitted and filed therein; stipulations, if any; a statement of matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; the hearing officer's report; and any brief submitted in connection with the hearing.
(3) A copy of the stenographic transcript of the hearing or, if the hearing is recorded, a copy of the tape or a transcript of the recording, shall be available to any party upon request to the stenographer or the Commission, as appropriate, and upon payment of the fees allowed by law.
Section 645-4.10 Report. Following the close of the record, including receipt of the transcript, if any, the hearing officer shall prepare and submit to the Commission a hearing report, which shall become part of the record.
Section 645-4.11 Final Determination and Order.
(a) After receipt of the hearing officer's report, the Commission shall make a final determination based upon the record.
(b) The final determination shall be embodied in a final order which shall contain findings of fact and conclusions of law or reasons for the final determination, and which may provide for:
(1) the dismissal of charges;
(2) an assessment of penalties consistent with applicable provisions of the ECL Articles 43 and 71, Title 33;
(3) a direction for abatement;
(4) a combination of any or all of the foregoing; or
(5) any determination deemed appropriate under the circumstances, consistent with applicable provisions of the ECL, Articles 43 and 71, Title 33, or the rules and regulations promulgated thereunder, or any permits, certificates or orders issued by the Commission.
(c) A copy of the final determination and order shall be served on the parties in the same manner as is provided in Section 645-4.2 (c) of this Subpart for the service of a notice of hearing and complaint or UAC.
Section 645-4.12 Uniform Appearance Tickets.
(a) In lieu of proceeding by administrative process, the Commission patrolmen or any law enforcement officer may proceed by uniform appearance ticket regarding any violation of ECL, Article 43 or 71, Title 33, or rules or regulations promulgated thereunder, against any person having the culpable mental states defined in Section 15.05 of the Penal Law.
(b) In such case, the procedures and forms specified in Part 640 of this Title shall apply.
Section 645-4.13 Summary Abatement.
(a) Whenever the Commission finds, after investigation, that any person is causing, engaging in or maintaining a condition or activity which, in the judgement of the Commission:
(1) presents an imminent danger to the health or welfare of the people of the State, or results in or is likely to result in irreversible or irreparable damage to the resources of the Park; and
(2) relates to the prevention and abatement powers of the Commission in that the condition or activity pertains to or affects any of the objectives or goals of ECL, Articles 43 and 71, Title 33, rules or regulations promulgated thereunder, or any permits, certificates or orders issued by the Commission, so that it appears to be prejudicial to the interest of the people of the State to delay action until an opportunity for hearing can be provided, the Commission may, without prior hearing or notice, order such person to discontinue, abate or alleviate such condition or activity.
(b) Such order shall be in writing and shall state the grounds upon which the order is based.
(c) Upon receipt of the Commission's summary abatement order, it shall thereafter be the duty of the respondent to immediately discontinue, abate or alleviate such condition or activity pursuant to the terms of said order. Failure to do so shall constitute a violation of the order and of these regulations.
(d) The Commission shall schedule a hearing promptly, at a time and place determined by the Commission not to exceed 10 days from the date when the summary abatement order is given. Notice of such hearing shall be given with the written summary abatement order.
(e) The respondent may waive, in writing, the hearing provided by law and these regulations. The failure of the respondent to appear at the time, date and place set forth in the summary abatement order for a hearing, shall constitute a waiver of the requirement that a hearing be held.
(f) The hearing shall be processed in accordance with the hearing procedures specified in this Subpart.
(g) The hearing officer shall, to the extent practicable, and without prejudice to the respondent's right to have a public hearing concerning the issuance of a summary abatement order within 10 days from the date the order is given, consolidate the hearing on the issuance of the summary abatement order with any hearing to be held on account of respondent's violation of ECL, Article 43 or 71, Title 33, or the rules or regulations promulgated thereunder, or any permits, certificates or orders issued by the Commission.
Section 645-4.14 Penalties and Sanctions. Any final order issued by the Commission pursuant to the procedures specified in this Subpart may include civil penalties and administrative sanctions to the full extent provided by ECL, Section 71-3303.
Section 645-4.15 Waiver of Rules. Any of the foregoing rules may be waived by stipulation of the parties with consent of the Commission or, if a hearing officer has been appointed, with consent of the hearing officer.
Section 645-4.16 Consistency with other Laws. Nothing herein is intended to limit the rights of any party in an enforcement proceeding pursuant to the ECL. The statutory provisions of the ECL and the State Administrative Procedure Act shall control over an inconsistent provision in this Subpart.