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This entry was published on 2014-09-22
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SECTION 15-0903
Hearing procedure
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 15, TITLE 9
§ 15-0903. Hearing procedure.

1. The provisions of this title shall not apply to applications for
permits, requests for permit renewals and modifications, or to permit
modification, suspension or revocation proceedings initiated by the
department where any of such actions involve title 5, 15 or 27 of this

2. Whenever a public hearing is to be held pursuant to this article,
the notice of such hearing shall be published in such newspaper or
newspapers as the department shall deem appropriate, once in each week
for not more than four weeks. At least one publication shall be in a
newspaper of general circulation in the area affected. Notice thereof
shall specify that on a date therein named, the department will cause
such hearing to be held at such place and time as it may specify
therein, for the purpose of receiving evidence and arguments from all
persons and public corporations that may be affected by the proposed
permit or project and shall have filed timely notices of appearance.
The public notice shall specify the last day, not more than ten days
prior to the day specified for the public hearing, on which notices of
appearance may be filed with the department. Notices of appearance in
opposition to the permit or project shall recite in the notice the
interest of the person or public corporation filing such notice, and the
specific grounds of objection to the permit or project. In the event
that no notice of appearance in opposition to the proposed permit or
project is filed within the time specified, the department may dispense
with the public hearing and shall proceed to consider and examine the
application, petition, maps, plans, proofs, arguments and other matters
submitted in support of the proposed permit or project; provided,
however, that nothing herein contained shall authorize the denial of an
application unless and until the applicant or petitioner has been
afforded an opportunity to present proof and argument in support of the
application. The notice of hearing shall also specify the subject
matter of the hearing in such detail as the department shall deem

3. Conduct of hearing shall be as follows:

a. All hearings shall be public except as to those matters where a
public hearing may be dispensed with pursuant to the provisions of
subdivision 1 of this section.

b. The hearings herein provided for may be conducted by the
commissioner or any employee of the department to whom the commissioner
shall delegate the power and authority to conduct such hearings as a
hearing officer in the name of the department at any time and place.

c. In such hearings, the hearing officer may administer oaths to
witnesses and may issue subpoenas in the name of the department,
requiring the attendance and giving testimony by witnesses and the
production of books, papers and other documentary evidence for such

d. The record, or summary thereof, of the proceedings of such hearings
shall be made and filed with the department. The department, on its own
motion or if requested to do so, may cause to be taken and filed with
the department a full stenographic transcript in duplicate of the
testimony presented at the hearing. The cost of such department copies
shall be paid by the applicant. The stenographer shall, upon payment of
his fees by a person requesting the same, furnish a copy of the whole or
any part of the transcript to such person.

e. The department may, for the purpose of such a hearing, provide for
the taking of depositions of witnesses before any member of the
department, or any person who may be designated hereunder by the
department to hold hearings. In such case such member, employee or other
person may administer oaths to the witnesses whose depositions are to be
taken. Each deposition shall be reduced to writing and subscribed by the
deponent and shall be filed with the department prior to the final
adjournment of the hearings.

f. The provisions of subdivision y of section 71-0503, applicable to
investigations by the department and a direction to testify made by the
department, shall apply to hearings and investigations and a direction
to testify or produce evidence made by a hearing officer at a hearing
conducted pursuant to the provisions of this article.

g. The department and hearing officers designated by it pursuant to
this article shall not be bound by the laws of evidence in the conduct
of hearing proceedings, but every decision and order shall be founded
upon competent, material evidence which is substantial in view of the
entire record.

h. No factual information or evidence other than that in the record
shall be considered in arriving at a decision in a case. However, all
evidence, including records and documents in the possession of the
department of which it desires to avail itself, may be offered and made
a part of the record in the case. All such documentary evidence may be
received in the form of copies or excerpts, or by incorporation by

i. The applicant and any person who has filed a notice of appearance
shall have the right of cross-examination of witnesses who testify, and
shall have the right to submit rebuttal evidence.

j. The department may take notice of judicially cognizable facts and
in addition may take notice of general, technical, or scientific facts
within its specialized knowledge. Parties shall be notified either
before or during the hearing, or by reference in preliminary reports or
otherwise, of material so noticed, and they shall be afforded an
opportunity to contest the facts so noticed. The department may utilize
its experience, technical competence, and specialized knowledge in the
evaluation of evidence presented to it.

4. The department shall, upon any application submitted to it or
initiated on its own motion, render its decision thereon in writing,
including or accompanied by findings of fact, and whenever required by
this article, by statutory determinations. The original of such
decision, together with all maps, plans and other papers or records
relating thereto, shall be filed and kept on file in the department. A
copy of the decision shall be delivered or mailed to the attorney of
record of the applicant and of each person who filed a notice of
appearance, or to the applicant or such person directly if not
represented by an attorney.