N.Y. Comp. Codes R. & Regs. tit. 6 § 624.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 624.5 - Evidentiary hearing participation

Participation in the evidentiary hearing may be as a full party or as 'amicus', depending upon the demonstrated compliance with the criteria set forth in subdivisions (b) through (d) of this section. Non-parties who wish to have their comments recorded will be permitted to submit oral or written comments during the public comment hearing, or as otherwise provided by the ALJ, as set forth in section 624.4 of this Part. Public comments will not constitute evidence in the evidentiary hearing, but will constitute comments on the DEIS, if one exists, and may be used by the ALJ as a basis to inquire further of all parties and potential parties at the issues conference.

(a) 'Mandatory parties.' The applicant and assigned department staff are mandatory full parties to the proceeding. However, in the case of a water supply rate dispute only the municipalities involved in the dispute are mandatory full parties.

(1) 'Applicant's statement of issues.'

(i) In matters referred to the Office of Hearings and Mediation Services pursuant to section 621.8 of this Title for adjudicatory proceedings pursuant to this Part, the applicant must file a statement of issues the applicant intends to raise with respect to any determination of the department no later than the date set forth in the notice of hearing for the filing of petitions for party status, or an earlier date set in the exercise of the ALJ's discretion.

(ii) Applicant's statement of issues must:

('a') identify issues for adjudication that meet the criteria of subdivision 624.4(c) of this Part;

('b') present a statement of material facts sought to be adjudicated at the evidentiary hearing and an offer of proof specifying the witness(es), each witness's qualifications, the nature of the evidence the applicant expects to present at the evidentiary hearing and the grounds upon which the assertion is made with respect to each issue; and

('c') identify the permit conditions that are contested.

(b) 'Other parties.' By the date set in the notice of hearing, a person desiring party status must file a petition in writing that 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) fully identify the proposed party together with the name(s) of the person or persons who will act as representative of the party;

(ii) identify petitioner's environmental interest in the proceeding;

(iii) identify any interest relating to statutes administered by the department relevant to the project;

(iv) identify whether the petition is for full party or 'amicus' status; and

(v) identify the precise grounds for opposition or support.

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

(i) identify an issue for adjudication that meets the criteria of subdivision 624.4(c) of this Part; and

(ii) present a statement of material facts sought to be adjudicated at the evidentiary hearing and an offer of proof specifying the witness(es), each witness's qualifications, the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect to that issue.

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

(i) identify the nature of the legal or policy issue(s) to be briefed that meets the criteria of subdivision 624.4(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 above, the ALJ may deny party status or may require additional information from the filer.

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

(6) At the discretion of the ALJ, Department staff and applicant may submit replies to petitions for party status as directed by the ALJ.

(c) 'Late filed petitions for party status.'

(1) Petitions filed after the date set in the notice of hearing will 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 must 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 issues raised in the proceeding.

(d) 'Rulings on party status.' Rulings on party status will be made by the ALJ after the deadline for receipt of petitions for party status and will be set forth in the rulings on issues provided for in section 624.4 of this Part.

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

(i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (b)(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 environmental interest.

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

(i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (b)(1) and (3) of this section;

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

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

(e) 'Rights of parties.'

(1) A full party has the right to:

(i) participate at the evidentiary hearing in person or through an authorized representative;

(ii) present relevant evidence and to cross-examine witnesses of other parties;

(iii) present argument on issues of law and fact;

(iv) initiate motions, requests, briefs or other written material in connection with the evidentiary hearing, and receive all correspondence to and from the ALJ and to and from all other parties that is circulated to the parties generally;

(v) appeal adverse rulings of the ALJ; and

(vi) exercise any other right conferred on parties by this Part or SAPA.

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

(3) A potential party has the same rights it would be entitled to if its petition for party status were granted.

(f) '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. 6 § 624.5

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