N.Y. Comp. Codes R. & Regs. tit. 6 § 622.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 622.2 - Definitions

Whenever used in this Part, unless otherwise expressly stated, the following terms have the meanings indicated in this section. The definitions in this section are not intended to change any statutory or common law meaning of these terms.

(a)Administrative law judge or ALJ means the commissioner's representative who conducts the proceeding.

(b)Affidavit means a voluntary written declaration or statement of facts made by a declarant with personal knowledge of the facts, and confirmed by the oath of the declarant before a person having authority to administer the oath, such as a notary public. A pleading verified in accordance with CPLR 3020 and 3021 may be used as an affidavit of the facts constituting the claim whenever the latter is required.

(c)Affirmation of an attorney means the statement of an attorney admitted to practice in the courts of the State, who is not a party to a proceeding, subscribed and affirmed by the attorney to be true under the penalties of perjury. An affirmation may be served or filed in a proceeding in lieu of and with the same force and effect as an affidavit.

(d)Commissioner means the Commissioner of Environmental Conservation of the State of New York or the commissioner's designee.

(e)CPLR means the New York State Civil Practice Law and Rules.

(f)Department means the Department of Environmental Conservation of the State of New York.

(g)Department staff means those department personnel participating in the proceeding, but does not include the commissioner, any personnel of the Office of Hearings and Mediation Services, the ALJ or any person advising or consulting with the commissioner or ALJ.

(h)Disclosure means disclosure of facts, documents, or other things that are known by or in the possession of a person and that are material and necessary in the prosecution or defense of the proceeding regardless of the burden of proof.

(i)ECL means the Environmental Conservation Law.

(j)Electronically stored information or ESI means any potentially relevant information that is created, stored or utilized with technology of any type. ESI includes, but is not limited to, voice mail, instant messaging and other electronic communications, text files, hard drives, graphics, databases, calendars, telephone logs, transaction logs, internet usage files, offline storage or information on removable media, information contained on laptops or other portable devices and network access information and back up materials, native files and the corresponding metadata which is ordinarily maintained, word-processing files, audio files, video files, spreadsheets, images, emails and attachments and other electronic messaging information that are stored electronically. Active data means potentially relevant ESI that is located in a computer's memory or in storage media (including servers, desktop or laptop computers, tablets, cellphones, hard drives, flash drives, compact discs, digital video discs, and portable media players) that is immediately available in the normal course of business.

(k)Evidence means sworn or affirmed testimony of witnesses, and physical objects, documents, records or photographs that tend to prove or disprove the existence of an alleged fact.

(l)Hearing means that part of the proceeding that involves the taking of evidence, examination of witnesses, and such other steps as are necessary in the prosecution or defense of the proceeding.

(m)Hearsay means a statement, other than one made by a witness testifying at the hearing, offered into evidence to prove the truth of the matter asserted.

(n)Interrogatories means written questions regarding the proceeding that are served by a party on an adversarial party. Answers to interrogatories must be in writing and made under oath.

(o)Mediation means a voluntary discussion between department staff and respondent concerning the violations alleged in an enforcement proceeding, facilitated by an ALJ assigned as mediator. The mediation may address all or only some of the allegations raised in the enforcement proceeding, or involve all or only some of the respondents.

(p)Motion means a request for a ruling or an order.

(q)Office of Hearings and Mediation Services means the office within the department principally responsible for conducting adjudicatory proceedings and providing mediation services.

(r)Party means department staff, all persons designated respondent and any person granted intervenor status pursuant to subdivision 622.10(f) of this Part, but does not include the commissioner, any personnel of the Office of Hearings and Mediation Services, the ALJ or any person advising or consulting with the commissioner or ALJ.

(s)Permit means any permit, certificate, license, registration or other form of department approval, other than an enforcement order, issued in connection with any regulatory program administered by the department.

(t)Person means any individual, public or private corporation, limited liability company, bi-state authority, political subdivision, government agency, department or bureau of the State, municipality, industry, partnership, association, firm, trust, estate or any legal entity whatsoever.

(u)Proceeding means an adjudicatory enforcement proceeding before an administrative law judge in which a determination of the legal rights, duties or privileges of named parties thereto is determined on a record and after an opportunity for a hearing.

(v)Proof of service means an affirmation of an attorney or affidavit if made by any other person specifying the papers served, the person served, and the date and manner of service, and setting forth facts showing that service was made by an authorized person and in an authorized manner.

(w)Protective order means an order denying, limiting, conditioning or regulating the use of material requested through disclosure.

(x)Relevant means tending to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable.

(y)Report means the ALJ's summary of the proceeding, including the ALJ's findings of fact, conclusions of law and recommendations for the commissioner's consideration.

(z)Respondent means the person or persons charged with one or more violations of the ECL or other laws administered by the commissioner, rules and regulations promulgated thereunder or any permit or order issued thereunder, or a person or persons alleged by department staff to be responsible for the relief sought.

(aa)SAPA means the State Administrative Procedure Act.

(ab)Service means the delivery of a document to a person by authorized means and, where applicable, the filing of a document with the ALJ, the Office of Hearings and Mediation Services or the commissioner.

(ac)Stipulation means an agreement between two or more parties to a proceeding, and entered into the hearing record, concerning one or more issues of fact or law that are the subject of the proceeding.

(ad)Subpoena means a legal document that requires a person to appear at a hearing and testify, to produce documents or physical objects, or both.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 622.2

Adopted New York State Register September 16, 2020/Volume XLII, Issue 37, eff. 9/16/2020

Amended New York State Register August 21, 2024/Volume XLVI, Issue 34, eff. 8/21/2024