Section 128-2.9 - Hearings on cease and desist orders
Effective Date
128-2.9 Hearings on cease and desist orders.
(a) Any person who receives a cease and desist order may
request a hearing on the order by submitting a petition in writing to the
Commissioner and to the Office of Administrative Trials and Hearings (OATH]
within seven (7) days of receipt of the cease and desist order. The
petition for a hearing shall state the name and address of the petitioner
and shall include a short and plain statement of the matters to be
adjudicated, identifying the activity that is the subject of the order, the
location of the activity, and the date of the cease and desist order. A
copy of the order shall be attached to the petition. In addition, a
completed OATH intake sheet shall be included with the petition. Blank
intake sheets are available from the Department.
(b) Upon receipt of the petition for a hearing, OATH shall
schedule a hearing promptly in the district of the Department where the
activity that is the subject of the order allegedly occurred, and at a time
and date which shall not exceed fifteen (15) days from the date of receipt
by OATH of the petition for a hearing unless the parties and the ALJ agree
to another location and date, except that hearings may be held at the
Department's offices in Valhalla, New York for petitions relating to
regulated activities in the East of Hudson watershed and at the Department
s offices in Kingston, New York for petitions relating to regulated
activities in the West of Hudson watershed. Notice of such hearing shall
be provided in writing to the petitioner and to the Department.
(c) A petition for a hearing shall not stay compliance with
the cease and desist order, and it shall continue to be the duty of the
petitioner to discontinue the activity pursuant to the terms of the order.
Failure to do so shall be a violation of the order and these rules and
regulations.
(d) At the hearing, the petitioner shall have the burden of
proving that the activity that is the subject of the order does not come
within the provisions of sections 128-2.1(a)(5) and 128-2.7(a)(5) of these
rules and regulations.
(e) The failure of the petitioner to appear at the time,
date and place set forth in the notice of hearing shall constitute a
default of the right to a hearing on the cease and desist order. The
Department shall provide a notice of default in writing to the petitioner
within five (5) days of the petitioner's failure to appear.
(f) The hearing shall be held before an ALJ. The ALJ shall
cause a record of the hearing to be made, and shall make a report to the
Commissioner within ten (10) days of the close of the hearing record,
setting forth the appearances, the relevant facts and arguments presented
at the hearing, findings of fact and conclusions of law, and a
recommendation as to whether the order should be continued, modified or
vacated and the reasons therefor. Transcripts of the record of the hearing
shall be made available at the petitioner's request and expense.
(g) Within ten (10) days of receipt of the recommendation
of the ALJ, the Commissioner may continue, vacate, or modify the order. If
the Commissioner does not act, the ALJ's recommendation shall be deemed
adopted.
(h) The results of the hearing on the cease and desist
order shall be without prejudice to the right of a person to apply for an
approval or variance for a regulated activity under these regulations, and
shall also be without prejudice to the authority of the Department or any
other person to take action on account of any violation of law, rule,
regulation or order arising out of the events, situations or circumstances
which led to the issuance of the order.