N.Y. Comp. Codes R. & Regs. tit. 10 § 128-2.9

Current through Register Vol. 46, No. 25, June 18, 2024

Section 128-2.9 - Hearings on cease and desist orders

(a) Any person who receives a cease and desist order may request a hearing on the order by submitting a petition in writing to the commissioner and to the Office of Administrative Trials and Hearings (OATH) within seven days of receipt of the cease and desist order. The petition for a hearing shall state the name and address of the petitioner and shall include a short and plain statement of the matters to be adjudicated, identifying the activity that is the subject of the order, the location of the activity, and the date of the cease and desist order. A copy of the order shall be attached to the petition. In addition, a completed OATH intake sheet shall be included with the petition. Blank intake sheets are available from the department.

(b) Upon receipt of the petition for a hearing, OATH shall schedule a hearing promptly in the district of the department where the activity that is the subject of the order allegedly occurred, and at a time and date which shall not exceed 15 days from the date of receipt by OATH of the petition for a hearing unless the parties and the ALJ agree to another location and date, except that hearings may be held at the department's offices in Valhalla, New York for petitions relating to regulated activities in the east of Hudson watershed and at the department's offices in Kingston, New York for petitions relating to regulated activities in the west of Hudson watershed. Notice of such hearing shall be provided in writing to the petitioner and to the department.

(c) A petition for a hearing shall not stay compliance with the cease and desist order, and it shall continue to be the duty of the petitioner to discontinue the activity pursuant to the terms of the order. Failure to do so shall be a violation of the order and these rules and regulations.

(d) At the hearing, the petitioner shall have the burden of proving that the activity that is the subject of the order does not come within the provisions of sections 128-2.1(a)(5) and 128-2.7(a)(5) of this Subpart.

(e) The failure of the petitioner to appear at the time, date and place set forth in the notice of hearing shall constitute a default of the right to a hearing on the cease and desist order. The department shall provide a notice of default in writing to the petitioner within five days of the petitioner's failure to appear.

(f) The hearing shall be held before an ALJ. The ALJ shall cause a record of the hearing to be made, and shall make a report to the commissioner within 10 days of the close of the hearing record, setting forth the appearances, the relevant facts and arguments presented at the hearing, findings of fact and conclusions of law, and a recommendation as to whether the order should be continued, modified or vacated and the reasons therefor. Transcripts of the record of the hearing shall be made available at the petitioner's request and expense.

(g) Within 10 days of receipt of the recommendation of the ALJ, the commissioner may continue, vacate, or modify the order. If the commissioner does not act, the ALJ's recommendation shall be deemed adopted.

(h) The results of the hearing on the cease and desist order shall be without prejudice to the right of a person to apply for an approval or variance for a regulated activity under these regulations, and shall also be without prejudice to the authority of the department or any other person to take action on account of any violation of law, rule, regulation or order arising out of the events, situations or circumstances which led to the issuance of the order.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 128-2.9