New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle BB - State Energy Office
Chapter III - State Energy Planning Proceeding
Subchapter B - Procedures
Part 7848 - Board Hearings
Section 7848.4 - Evidentiary hearings
Universal Citation: 9 NY Comp Codes Rules and Regs ยง 7848.4
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Request for evidentiary hearings.
(1)
Subsequent to the issuance of the draft plan, an interested person seeking to
provide evidentiary material or data may request the board to conduct an
evidentiary hearing on the issues identified in subdivision two of section 6-104 of the Energy Law, or the board may
conduct such hearing on its own initiative.
(2) The request shall be served on the board
no later than the date of the last public comment hearing scheduled by the
board. The entity making the request shall serve a copy of such request to
those on the board's service list at the same time as the request is served on
the board.
(3) Such request shall
indicate:
(i) a description of the
evidentiary material or data the requester proposes to submit to the
board;
(ii) whether a factual
dispute requiring an evidentiary hearing exists;
(iii) the significance of the issue in
dispute and the likelihood that resolution of the disputed point would affect
materially the forecasts or the energy policies, planning objectives or
strategies contained in the draft plan; and
(iv) the degree to which the person
requesting the evidentiary hearings has sought to limit the factual matters in
dispute by seeking additional information pursuant to subdivision (e) of this
section.
(4) Each such
request shall also indicate whether the person intends to sponsor expert
witnesses in such hearings. If so, the request shall include a brief
description of the expert's qualifications and a summary of the matters about
which the expert intends to testify, and a summary of the basis for the
expert's testimony and opinion. The board may request that the person furnish
such additional information as the board deems appropriate to enable it to
fully understand the issues that would be presented by the proposed
testimony.
(5) The board shall
issue a ruling as to whether an evidentiary hearing is warranted and specifying
the issues to be addressed.
(b) Parties.
(1) In the event an evidentiary hearing is
held by the board, the parties to such hearing shall include:
(i) staff designated by the board to
participate in the hearing;
(ii)
all persons requesting an evidentiary hearing; and
(iii) any other person granted party status
by the board.
(2)
Requests for party status.
(i) Major energy
suppliers; municipalities; or State agencies, authorities, boards or
commissions may become parties to any evidentiary hearing held by the board.
The board shall grant party status to any other person if the board determines
that such person is likely to contribute to the development of a complete
record, or if party status is otherwise fair and in the public interest. Each
entity seeking party status shall notify the secretary of the board in writing
of their interest not later than 10 days following issuance of the board's
ruling identifying issues to be the subject of an evidentiary hearing. Such
notice shall state the party's name and the name, address, electronic mail
address, and telephone number of its attorney or other officer or
representative upon whom service of documents should be made, and shall
identify subject(s) as to which the party is interested in
participating.
(3)
Grouping of parties.
(i) In the interests of
efficiency, parties with similar interests may be ordered to be grouped by the
hearing officer.
(ii) When two or
more parties have been grouped in accordance with subparagraph (i) of this
paragraph, the hearing officer may limit the number of representatives of the
grouped parties that will be permitted to question witnesses.
(ii) Notwithstanding subparagraphs (i) and
(ii) of this paragraph, each party shall have the right to file a brief with
the board.
(c) Service of documents.
(1) Service.
(i) Each party shall be served with a copy
of:
(a) formal notices, rulings, decisions
and orders of the board, the chair, or any hearing officer appointed pursuant
to this Chapter; and
(b) any other
documents required to be served pursuant to these regulations.
(ii) A list of parties upon whom
service of documents in the evidentiary hearing is to be made shall be prepared
by the chair and provided to such parties.
(2) Service on board. Documents required to
be served on the board shall be delivered to the secretary of the board. The
board shall maintain a copy of all documents served on the board with respect
to an evidentiary hearing on a particular draft plan for at least two years
after the final plan is issued. Except as provided in Part 7842 of this Title,
all interested persons shall have access to inspect all such filed
documents.
(3) Service on the
hearing officer. Parties shall serve the hearing officer, after the effective
date of the hearing officer's appointment, if one has been appointed, with
copies of all documents filed in the hearing proceeding.
(d) Hearing officer.
(1) The board may appoint a hearing officer
to conduct an evidentiary hearing. The nature and scope of the authority and
duties of the hearing officer shall be as set forth herein and as prescribed by
the board.
(2) If the board does
not appoint a hearing officer for the evidentiary hearing, the chair shall
perform the duties of the hearing officer under these regulations.
(e) Requests for additional information.
(1) Following the issuance of
the draft plan, interested persons may request from the board access to any
information regarding the contents of the draft plan. Non-confidential
information will be made available to all parties.
(2) Any party may request from a party
submitting testimony in any evidentiary hearing additional relevant information
regarding such testimony, including data, records and documents. Such requests
shall be served promptly, but in no event later than the first day of
hearings.
(3) Parties are
encouraged to communicate and exchange information informally, including by
telephone or by meeting, and to use the formal procedures provided for in this
section to compel production only as necessary.
(4) Responses to written requests for
additional information shall be provided within 14 days unless additional time
to respond is granted by the hearing officer, and shall be in writing unless
otherwise indicated by the requesting party. The responding party shall
identify the person or persons responsible for each response.
(5) The hearing officer shall resolve any
disputes concerning such requests for additional information.
(6) All written requests for additional
information, and responses, objections and motion papers relating to the
requests, shall be served on all parties and the hearing officer, unless
otherwise ordered by the hearing officer.
(7) Responses to information requests may be
included in the record of the proceeding upon motion for such adoption timely
made and granted. Any response to such a motion may be contained in the
responding party's brief.
(f) Prefiled written testimony from the parties.
(1) Any party may submit testimony in
connection with the evidentiary hearing on the issues identified by the board
in its ruling pursuant to paragraph (a)(5) of this section. All testimony shall
be prefiled and in written form. Unless otherwise provided by the hearing
officer, testimony shall be submitted on or before 30 days following the
board's issuance of such ruling. The testimony shall be served on each party
and on the board.
(2) Prepared
written testimony, in question-and-answer form, shall be received in evidence
with the same force and effect as though it were stated orally by the
witnesses, provided that each of the witnesses is present at the hearing at
which his or her prepared written testimony is offered and adopts that
testimony under oath. If cross-examination of a witness' prepared testimony is
waived by all other parties, that witness need not be present and his or her
testimony may be adopted by affidavit submitted to the hearing
officer.
(g) Schedule and location of hearings. When an evidentiary hearing is determined by the board to be necessary, such hearing shall be held on an expedited basis at such time and place as the board shall direct.
(h) Conduct of hearings generally. The rules of evidence applicable to a proceeding before a court shall not apply to any evidentiary hearings held under this section. The hearing officer may, however, limit or exclude repetitive, irrelevant, redundant or immaterial testimony or evidence or questions posed to witnesses, during such hearing.
(i) Briefs.
(1) Time for submission. In the event an
evidentiary hearing is conducted by the board, parties participating in such
hearing may submit a brief to the hearing officer not later than 14 days
following the conclusion of such hearing unless otherwise provided by the
hearing officer. The hearing officer shall determine the number of briefs that
may be written, and any page limitations.
(2) Filing and service. All briefs shall be
typed, double-spaced, on paper measuring 81/2 inches in width and 11 inches in
length. Briefs shall clearly show the title of the proceedings, the filing date
of the brief, and the name of the party on whose behalf the brief is submitted.
Citations to the record shall be made in support of arguments presented. Briefs
shall be served on all parties and the original shall contain a signed
affirmation that service has been properly made.
(3) Reply briefs. Reply briefs may be
permitted at the discretion of the hearing officer.
(j) Motions.
(1) The parties are encouraged to use
informal means to resolve matters in controversy before filing
motions.
(2) Prior to the
designation of a hearing officer, all motions shall be addressed to the
chair.
(3) After the designation of
a hearing officer, all motions and replies thereto shall be addressed to the
hearing officer.
(4) Replies to a
motion shall be submitted within 10 days of the receipt of the motion, unless
otherwise provided by the hearing officer or chair.
(5) All motions and replies thereto shall be
served on the hearing officer, if any, the board, and on each party.
(k) Interlocutory appeals.
(1) An interlocutory appeal from a ruling of
the hearing officer may be filed by the person aggrieved only in extraordinary
circumstances where a prompt decision is necessary to prevent detriment to the
public interest. The appeal shall be submitted to the chair, who may rule on
the appeal or refer it to the board. A person filing an interlocutory appeal
from an adverse ruling shall state the objectionable ruling, the basis for the
appeal and any authorities relied upon, and demonstrate the detriment to the
public interest which would result if review is not granted.
(2) An appeal from an interlocutory ruling of
the hearing officer shall be taken within seven days of the issuance of the
ruling. The appealing party shall serve the appeal upon the chair and each
party. Any party may submit a response to the appeal within seven days of
service of the appeal. Responses shall be served on the chair and on each
party. These time limits may be modified by the chair.
(3) Until the board or the chair rules on an
interlocutory appeal, any ruling of the hearing officer shall be valid and
binding.
(4) Any party may, in its
brief to the board, request the board to consider any matter for which an
interlocutory appeal from a ruling of the hearing officer was not permitted, or
any matter which the chair alone decided.
(l) Final decision.
(1) The hearing officer shall submit a
hearing report to the chair within 45 days after the close of the record. The
report shall include findings of fact, conclusions of law and recommendations
on all issues before the hearing officer.
(2) The board shall issue a final decision
within 60 days after the close of the record.
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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