N.Y. Comp. Codes R. & Regs. Tit. 6 § 620.3 - Hearing

(a) The commissioner shall schedule a hearing promptly, at a time and place which the commissioner shall determine, not to exceed 15 days from the date when the summary abatement order is given. Notice of such hearing shall be served upon or otherwise provided to the respondent with the written summary abatement order.

(b) At the hearing, department staff bears the burden of persuasion on all charges and matters affirmatively asserted in the summary abatement order. Department staff may meet its burden by submission of the supporting materials that accompanied the summary abatement order. At the hearing, department staff may also present testimony and evidence that supplements the supporting materials that accompanied the summary abatement order. At the hearing, the respondent shall have the opportunity to be heard and the burden to produce evidence that such condition or activity which is the subject of the summary abatement order does not come within the provisions of section 620.2(a) of this Part. The respondent bears the burden of persuasion regarding all affirmative defenses. Both the respondent and department staff shall have the right of cross-examination.

(c) 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.

(d) The hearing shall be before an administrative law judge designated by the commissioner. The ALJ shall cause a record of the hearing to be made, and shall make a report to the commissioner setting forth the appearances, the relevant facts and arguments presented at the hearing, findings of fact and conclusions of law, a recommendation on whether the order should be continued, modified or vacated and the reasons for this recommendation.

(e) The ALJ 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 15 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 the environmental conservation law, or any order, rule or regulation issued or promulgated thereunder.

(f) The ALJ shall have the powers and authority provided to the presiding officer under the State Administrative Procedure Act. The ALJ may receive testimony or statements in written form, if the witness is presented to authenticate his or her statement and for cross-examination, or if the parties so stipulate.

(g) The record of the hearing may be made by a stenographer, by a tape recorder, by other electronic recording device or by other means. The ALJ shall cause a typed transcript of the record to be prepared for the department's files, but shall not wait for the preparation of this transcript before making a report to the commissioner, if so requested by the respondent or the commissioner.

(h) The ALJ shall make a report in writing to the commissioner within 30 days of the close of the hearing, unless the parties agree to an extension of this time.

(i) The provisions of Part 622 of this Title (Uniform Enforcement Hearing Procedures) apply to hearings on summary abatement orders except to the extent inconsistent with the provisions of this Part.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 6 § 620.3