Guide To Permit Hearings

Written Statements. In response to a notice of complete application, the public is invited to submit written statements identifying important environmental issues regarding the proposed project. Such statements should include specific bases for opposition since general opposition to a proposed project is not sufficient grounds to schedule a public comment hearing. 

Copies of Documents. Copies of all applications and supporting documents are available for public review at the DEC regional office or may be made available electronically (either through posting on a website or on request). In some cases, these documents are also filed with a local library or the clerk's office of the relevant municipality. 

Public Comment Hearings under SEQR. When an Environmental Impact Statement (EIS) is required under the State Environmental Quality Review Act and DEC is the SEQR lead agency DEC staff will hold a public scoping meeting. The information gathered at the meeting is used to determine which topics need to be addressed in the applicant's Draft EIS.  Once the Draft EIS is prepared and accepted by DEC, a public comment hearing on the Draft EIS is typically held.  Notices for public comment hearings on EIS scoping and availability of a Draft EIS are published in the ENB. 

Notice of Hearings. When DEC determines that a public comment hearing is necessary, notices are published in the ENB and in a local newspaper. Sometimes the notice will also be published in a foreign language newspaper. The notice contains basic project information, information on the availability of documents, and details on the hearing format, location, date and time. 

Notices of hearings are sent to: 

Since the outcome of the hearing is not determined by the number of persons for or against a proposed project, it is often efficient for groups with similar interests to be represented by a single spokesperson. 

Hearing Locations and Format
For the convenience of the public, hearings are generally held in a town or village hall or other public building in the municipality where the project is located. These facilities should be reasonably accessible to persons with a mobility impairment. Interpreter services are available to the hearing impaired, at no charge, upon written request to the administrative law judge listed in the hearing notice. All hearing sessions are open to the public.  Hearings may also be held electronically or both electronically and in-person. 

Conduct of Hearings.  Most public comment hearings on permit applications are run by an administrative law judge from the DEC Office of Hearings and Mediation Services.  The length of oral statements may be limited by the judge to prevent repetition and to allow everyone an opportunity to speak. These statements have the same weight of written comments that are submitted to DEC. Statements are also transcribed and a transcript of the hearing is prepared after the hearing.   Public comment hearings may be scheduled during the day, in the evening, or both, depending on the degree of public interest.  Public comment hearings may also be held in person, electronically, or both. 

Evaluation of Comments.  DEC evaluates written and oral comments submitted in its review of the permit application.  Both oral and written comments receive the same consideration.  The evaluation helps DEC determine whether a permit should be issued and, if issued, the scope of the permitted activities.  In some cases, submitted comments may raise substantive and significant issues that should be decided through an adjudicatory proceeding.

Adjudicatory Proceedings Pursuant to Part 624

Adjudicatory proceedings are like civil court proceedings: they provide the applicant and public an opportunity to appear as parties, to present evidence and to argue contested issues before an impartial administrative law judge (ALJ) from the Office of Hearings and Mediation Services (OHMS). Evidence can be in the form of testimony, physical objects, documents, records, photographs or other things presented to the ALJ. An adjudicatory proceeding is typically comprised of three parts: 

Not all proceedings must go through all three phases. For example, if a public comment hearing on a permit application has already been held pursuant to the Uniform Procedures (Part 621) prior to referral to OHMS, the ALJ has the discretion to accept the record of public comment (both oral and written) from that public comment hearing.  In this situation no further public comment hearing will be held. 

In addition, if the ALJ determines that there are no factual issues in dispute and addresses all legal issues raised by the parties in the Issues Ruling, an evidentiary hearing will not be held. 

The various stages of the adjudicatory proceeding can be conducted in-person or virtually, or through a combination of both mediums.  In addition, the ALJ has the discretion to conduct the issues conference solely on the papers. 

For more detailed information regarding permit hearing procedures see, 6 NYCRR 624. 

The public comment portion of the adjudicatory proceeding provides the public and the parties with an opportunity to provide unsworn statements relative to the project.  At the public comment hearing, the ALJ may limit the length of oral statements to prevent repetition and allow everyone an opportunity to speak. The ALJ will typically advise that longer comments should be submitted in writing.  Oral and written comments are afforded the same weight.  Oral statements are transcribed and a transcript of the hearing is prepared after the hearing.   Public comment hearings may be scheduled during the day, in the evening, or both, depending on the degree of public interest.  Public comment hearings may also be held in person, virtually, or through a combination of both mediums. 

Following the public comment hearing, the ALJ will schedule an issues conference.  The issues conference will be held in advance of the evidentiary hearing and is designed to identify the parties to the proceeding and the issues to be adjudicated.  At the discretion of the ALJ, the issues conference may be conducted on the papers, orally, or both.  

Purpose: An issues conferences is used to: 

The ALJ will preside over the issues conference and the participants will be Department staff, the applicant, and any person who has filed a request for party status.  At the issues conference, the ALJ may ask questions of each filer to clarify, consolidate or resolve potential issues. The ALJ may establish schedules for briefs, pre-filed testimony, or discovery procedures. Parties may also be asked to meet to try to resolve their differences. 

Participation in the evidentiary hearing may be as a full party or as an amicus.   

Full Party Status and Obligations:   An application to participate in the evidentiary hearing as a full party must include:   

There are several obligations that go hand in hand with party status. These include attending evidentiary hearing sessions, presenting testimony when called upon, and questioning other parties' witnesses on a schedule determined by the ALJ.  A party may appear in person or through a representative who can demonstrate that they have been chosen by the party. A party may select an attorney as its representative, but this is not necessary.  Parties that do not attend an evidentiary hearing session will lose the opportunity to cover material addressed at that session, unless otherwise provided by the ALJ. If a party cannot attend due to circumstances beyond its control, the ALJ should be contacted as soon as possible before the session so that other arrangements, including hearing adjournments, can be considered. 

Amicus Party Status: An amicus (friend of the court) is a person who is not eligible to be a full party, but can file a brief and may, in the discretion of the ALJ, present oral argument.  An amicus can assist the ALJ and Commissioner by presenting written and oral argument on important legal and policy matters.  To request amicus party status, the proposed party must submit the following information to the ALJ:   

Adjudicable:  An issue is adjudicable if: 

The evidentiary hearing is that part of the administrative proceeding that follows the issues conference and involves the taking of evidence, examination of witnesses, and presentation of argument on issues of law and fact. 

ALJ Authority:  The ALJ has the authority to: 

ExParte Rule: The ALJ cannot directly or through a representative, communicate with any person in connection with any issue that relates to the merits of the proceeding without providing notice and an opportunity for all parties to participate.  The parties, however, are free to discuss matters without the ALJ present. 

Disclosure: It may be necessary for one party to get information from another party. This is called disclosure.  The burden to supply the requested information is on the one who has the documents. Generally, there is full disclosure of all relevant evidence. The ALJ will make rulings on disclosure when objections or motions are filed. 

Order of Events:  While the ALJ has the discretion to determine and adjust the sequence of events at the hearing, typically the hearing begins with a formal opening by the ALJ, appearances of the parties, followed by opening statements and the presentation and admission of evidence.  

Since, the applicant bears the burden of proof, they will present their case first. The applicant will use witnesses, who may include consulting engineers, biologists, or other technical experts. 

At the conclusion of the testimony and evidence of all parties, the parties will have the opportunity to make a closing statement and, if permitted by the ALJ, file a brief.   

Direct Examination: The applicant or its representative will question each witness within that person's area of expertise and experience. Called direct examination, these questions usually relate to the role the witness had in the design and development of the project. Site plans, the Environmental Impact Statement, and other documentation may be presented as exhibits. 

Cross-examination:  After direct examination each party is given an opportunity, in a sequence established by the ALJ, to question a witness further through cross-examination. There are several reasons for the opposing parties to conduct a cross-examination of each witness: 

After the applicant has called all its witnesses, the other parties may present their cases. The applicant, however, retains the burden to demonstrate, by a preponderance of relevant evidence, that its proposed project will be in compliance with all applicable laws governing permit issuance. 

DEC Staff:  Depending on the nature of a proposed project, staff from various DEC programs will often participate at an adjudicatory proceeding, generally represented by a DEC attorney. DEC staff have the same obligations and opportunities as the other parties. 

Stipulations: A stipulation executed by all parties resolving any or all issues removes those issues from further consideration in the adjudicatory proceeding.  Within 5 days of execution, Applicant must serve a copy of the stipulation on all parties and the ALJ. Stipulations are part of the record.  

Closing Arguments: After all parties have concluded their cases, the ALJ will entertain oral closing arguments or set a time period for filing of written closing statements or legal briefs. 

Closing the Record: The hearing record will be closed upon the receipt of the closing briefs or of a complete stenographic record, whichever occurs last. A copy of the stenographic record is normally placed on file for public review in the relevant DEC regional office. Sometimes, a copy is placed on file in the clerk's office of the appropriate municipality, or in a local library. 

Length of Hearings: The length of a hearing depends upon the number of issues to be adjudicated and their complexity. Some hearings are concluded in a single day; a complex project can take several days or more.  During the course of a long hearing, the ALJ may grant an adjournment to accommodate the parties and their witnesses. 

ALJ Hearing Report: After the record is closed, the ALJ conducts a careful, impartial review of the stenographic record and all exhibits and briefs, giving appropriate weight to each document and the testimony of each witness.  All important issues litigated during the hearing are then addressed by the ALJ in a series of Findings of Fact and Conclusions contained within the ALJ's hearing report. 

Commissioner's Decision: The report and hearing file is then forwarded to the Commissioner, who issues a decision incorporating the report as written or as modified.  

The Commissioner's decision will: 

Recommended Decision. Sometimes, it may be appropriate to circulate the ALJ's report to the parties for comment prior to the Commissioner's decision. Whether this is done is determined by law, in the case of Siting Boards, or by the Commissioner. 

In some cases, the Commissioner may defer making a final decision and return the matter to the ALJ for a hearing on issues that require further development. 

Distribution: Copies of the Commissioner's final decision are mailed to the applicant, parties and other persons known to be interested in the outcome.  Copies of ALJ hearing reports and the Commissioner decisions are posted on the Department's website (Hearings and Decisions), and are available at cost through the Freedom of Information Law (FOIL).  In addition, copies of these decisions are available through legal reporting services such as Westlaw and Lexis. 

Appeals of Commissioner’s Decision:  All Commissioner final decisions may be reviewed in State Supreme Court by proceedings brought under Article 78 of the Civil Practice Law and Rules. These proceedings may be brought by the applicant, a party to the hearing, or other persons affected by the decision. 

Costs and Fees: There is no fee for participation in a DEC permit hearing. Costs of permit hearings, including hearing facilities, notice publications, and a stenographic transcript, are paid by the applicant. If a party elects to hire an attorney or expert witnesses, they are responsible for all associated costs. Any party introducing documents is responsible for the costs of duplication and distribution to the other parties. Anyone may purchase copies of the stenographic transcript directly from the court reporter. 

Mediation 

Mediation is a voluntary discussion between Department staff, the applicant, and parties or potential parties concerning the issues proposed to be adjudicated in a permit proceeding.  Mediation can be requested by the parties or any potential parties after referral of the matter to OHMS.  Upon consent of all parties, an ALJ will be assigned for this purpose.  As a result of the mediation, the adjudicatory proceeding may be adjourned.  The ALJ assigned to mediate the permit matter will not be the ALJ assigned to the adjudicatory proceeding should one be necessary. 

The mediation may address all or only some of the issues raised in the permit proceeding and can involve only some, or all of the parties or potential parties. 

The ALJ assigned as mediator has the power to: 

More Information

Permit Applications: Information regarding the status of any pending permit application can be obtained by contacting the appropriate DEC Regional Permit Administrator in the Division of Environmental Permits. That office is responsible for processing applications for projects proposed in the counties covered by the responsible DEC region. The counties encompassed by each DEC region are listed on the page identifying Regional Permit Administrators. Permit application information may also be obtained on DEC’s website (Search DEC Permit Applications Data).