New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter VI - General Regulations
Part 622 - Uniform Enforcement Hearing Procedures
Section 622.3 - Commencement of a proceeding
Universal Citation: 6 NY Comp Codes Rules and Regs ยง 622.3
Current through Register Vol. 46, No. 12, March 20, 2024
(a) 'Notice of hearing and complaint.'
(1)
Department staff may commence an administrative proceeding by the service of a
notice of hearing. If the proceeding is commenced by a notice of hearing, it
must be accompanied by a complaint. The complaint must be signed and dated by a
department attorney and contain:
(i) a
statement of the legal authority and jurisdiction under which the proceeding is
to be held;
(ii) a reference to the
particular sections, subsections, paragraphs and subparagraphs of the statutes,
rules and regulations alleged to have been violated;
(iii) a plain and concise statement of the
matters asserted in consecutively numbered paragraphs. Each cause of action
must be separately stated and numbered;
(iv) a demand for the relief sought, which
may include relief in the alternative or different types of relief;
and
(v) the name, mailing address
and telephone number of the department attorney.
(vi) The complaint will be considered to have
been signed by a department attorney if it bears:
('a') the physical signature of the attorney;
or
('b') the attorney's signature
scanned into an electronic format that reproduces the signature, provided the
signatory affixed the digital image of his or her signature to the
complaint.
(2) The notice of hearing must state that a
hearing date will be set by the Office of Hearings and Mediation Services upon
the filing of a statement of readiness for adjudicatory hearing as set forth in
section
622.9
of this Part. The notice of hearing must also contain a statement that any
affirmative defenses, including exemptions to permit requirements, will be
waived unless raised in the answer and may set forth the date, time and place
of a pre-hearing conference. The notice must contain a statement that the
failure to answer, failure to attend a pre-hearing conference, or failure to
attend the hearing will result in a default and a waiver of respondent's right
to a hearing.
(3) Service of the
notice of hearing and complaint must be by personal service consistent with the
CPLR or by certified mail. Where service is by certified mail, service is
complete when the notice of hearing and complaint is received. If personal
service and service by certified mail is impracticable, upon application by
department staff, the ALJ may provide for an alternative method of service
consistent with CPLR 308(5).
(4) If
a notice of hearing is served with a complaint and statement of readiness, the
notice must state the date, time and place of the hearing set by the Office of
Hearings and Mediation Services.
(b) 'Other methods of commencing a proceeding.'
(1) Proceedings may be commenced
pursuant to sections
622.12
and
622.14
of this Part.
(2) Where a
proceeding arises out of department staff's notification of intent to take
specified action that will become final unless a hearing is requested, the
notification takes the place of a complaint. Service of the notice of intent
must be in the same manner as prescribed in paragraph (a)(3) of this section. A
request for a hearing takes the place of an answer.
(3) Where a proceeding arises out of
department staff's notice of expedited hearing issued pursuant to paragraph
613-5.4(a)(3) of this Title together with a written notification of any
petroleum delivery prohibition, the notice of expedited hearing must state that
the failure of the facility to appear at the time and place scheduled for the
expedited hearing constitutes a waiver of the opportunity for an expedited
hearing. Service of the notice of expedited hearing and written notification of
any petroleum delivery prohibition must be in the same manner as prescribed in
paragraph (a)(3) of this section. The facility may answer at any time up to and
including the date of the expedited hearing. The notification of any petroleum
delivery prohibition:
(i) takes the place of
a complaint; and
(ii) must state
the alleged facts or relevant conditions that are the basis for the delivery
prohibition.
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