New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter VI - General Regulations
Part 624 - Permit Hearing Procedures
Section 624.9 - Evidence, burden of proof and standard of proof
Universal Citation: 6 NY Comp Codes Rules and Regs ยง 624.9
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Evidence.
(1) All evidence submitted must be relevant
and all rules of privilege will be observed. However, other rules of evidence
need not be strictly applied. Hearsay evidence may be admitted if a reasonable
degree of reliability is shown.
(2)
Although relevant, evidence may be excluded if its value as proof is
substantially outweighed by a potential for unfair prejudice, confusion of the
issues, undue delay, waste of time or needless presentation of repetitious or
duplicative evidence.
(3) Where a
part of a document is offered as evidence by one party, any party may offer the
entire document as evidence.
(4)
Whenever possible, an object that is the subject of testimony will be exhibited
at the hearing. It must be properly identified as relevant, and it must be
shown that it has not changed substantially due to the passage of time or any
other reason.
(5) Each witness must
be sworn or make an affirmation before testifying. Opening, closing and other
unsworn statements are not evidence but will be considered as arguments bearing
on evidence.
(6) The ALJ or the
commissioner may take official notice of all facts of which judicial notice
could be taken and of other facts within the specialized knowledge of the
department. When official notice is taken of a material fact not appearing in
the evidence in the record and of which judicial notice could not be taken,
every party must be given notice thereof and, on timely request, be afforded an
opportunity, prior to decision, to dispute the fact or its
materiality.
(b) Burden of proof.
(1) The applicant has the burden of
proof to demonstrate that its proposal will be in compliance with all
applicable laws and regulations administered by the department.
(2) Where the department has initiated
modification, suspension or revocation proceedings, the department staff bears
the burden of proof to show that the modification, suspension or revocation is
supported by the preponderance of the evidence.
(3) Where an application is made for permit
renewal, the permittee has the burden of proof to demonstrate that the
permitted activity is in compliance with all applicable laws and regulations
administered by the department. A demonstration by the permittee that there is
no change in permitted activity, environmental conditions or applicable law and
regulations constitutes a prima facie case for the permittee.
(4) The burden of proof to sustain a motion
will be on the party making the motion.
(c) Standard of proof. Whenever factual matters are involved, the party bearing the burden of proof must sustain that burden by a preponderance of the evidence unless a higher standard has been established by statute or regulation. This subdivision does not modify or supplement the questions that may be raised in a proceeding brought pursuant to CPLR article 78.
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