§ 15-0903 — Hearing procedure

§ 15-0903. Hearing procedure.\n 1. The provisions of this title shall not apply to applications for\npermits, requests for permit renewals and modifications, or to permit\nmodification, suspension or revocation proceedings initiated by the\ndepartment where any of such actions involve title 5, 15 or 27 of this\narticle.\n 2. Whenever a public hearing is to be held pursuant to this article,\nthe notice of such hearing shall be published in such newspaper or\nnewspapers as the department shall deem appropriate, once in each week\nfor not more than four weeks. At least one publication shall be in a\nnewspaper of general circulation in the area affected. Notice thereof\nshall specify that on a date therein named, the department will cause\nsuch hearing to be held at such place and time as it may specify\ntherein, for the purpose of receiving evidence and arguments from all\npersons and public corporations that may be affected by the proposed\npermit or project and shall have filed timely notices of appearance.\nThe public notice shall specify the last day, not more than ten days\nprior to the day specified for the public hearing, on which notices of\nappearance may be filed with the department. Notices of appearance in\nopposition to the permit or project shall recite in the notice the\ninterest of the person or public corporation filing such notice, and the\nspecific grounds of objection to the permit or project. In the event\nthat no notice of appearance in opposition to the proposed permit or\nproject is filed within the time specified, the department may dispense\nwith the public hearing and shall proceed to consider and examine the\napplication, petition, maps, plans, proofs, arguments and other matters\nsubmitted in support of the proposed permit or project; provided,\nhowever, that nothing herein contained shall authorize the denial of an\napplication unless and until the applicant or petitioner has been\nafforded an opportunity to present proof and argument in support of the\napplication. The notice of hearing shall also specify the subject\nmatter of the hearing in such detail as the department shall deem\nnecessary.\n 3. Conduct of hearing shall be as follows:\n a. All hearings shall be public except as to those matters where a\npublic hearing may be dispensed with pursuant to the provisions of\nsubdivision 1 of this section.\n b. The hearings herein provided for may be conducted by the\ncommissioner or any employee of the department to whom the commissioner\nshall delegate the power and authority to conduct such hearings as a\nhearing officer in the name of the department at any time and place.\n c. In such hearings, the hearing officer may administer oaths to\nwitnesses and may issue subpoenas in the name of the department,\nrequiring the attendance and giving testimony by witnesses and the\nproduction of books, papers and other documentary evidence for such\nhearings.\n d. The record, or summary thereof, of the proceedings of such hearings\nshall be made and filed with the department. The department, on its own\nmotion or if requested to do so, may cause to be taken and filed with\nthe department a full stenographic transcript in duplicate of the\ntestimony presented at the hearing. The cost of such department copies\nshall be paid by the applicant. The stenographer shall, upon payment of\nhis fees by a person requesting the same, furnish a copy of the whole or\nany part of the transcript to such person.\n e. The department may, for the purpose of such a hearing, provide for\nthe taking of depositions of witnesses before any member of the\ndepartment, or any person who may be designated hereunder by the\ndepartment to hold hearings. In such case such member, employee or other\nperson may administer oaths to the witnesses whose depositions are to be\ntaken. Each deposition shall be reduced to writing and subscribed by the\ndeponent and shall be filed with the department prior to the final\nadjournment of the hearings.\n f. The provisions of subdivision y of section 71-0503, applicable to\ninvestigations by the department and a direction to testify made by the\ndepartment, shall apply to hearings and investigations and a direction\nto testify or produce evidence made by a hearing officer at a hearing\nconducted pursuant to the provisions of this article.\n g. The department and hearing officers designated by it pursuant to\nthis article shall not be bound by the laws of evidence in the conduct\nof hearing proceedings, but every decision and order shall be founded\nupon competent, material evidence which is substantial in view of the\nentire record.\n h. No factual information or evidence other than that in the record\nshall be considered in arriving at a decision in a case. However, all\nevidence, including records and documents in the possession of the\ndepartment of which it desires to avail itself, may be offered and made\na part of the record in the case. All such documentary evidence may be\nreceived in the form of copies or excerpts, or by incorporation by\nreference.\n i. The applicant and any person who has filed a notice of appearance\nshall have the right of cross-examination of witnesses who testify, and\nshall have the right to submit rebuttal evidence.\n j. The department may take notice of judicially cognizable facts and\nin addition may take notice of general, technical, or scientific facts\nwithin its specialized knowledge. Parties shall be notified either\nbefore or during the hearing, or by reference in preliminary reports or\notherwise, of material so noticed, and they shall be afforded an\nopportunity to contest the facts so noticed. The department may utilize\nits experience, technical competence, and specialized knowledge in the\nevaluation of evidence presented to it.\n 4. The department shall, upon any application submitted to it or\ninitiated on its own motion, render its decision thereon in writing,\nincluding or accompanied by findings of fact, and whenever required by\nthis article, by statutory determinations. The original of such\ndecision, together with all maps, plans and other papers or records\nrelating thereto, shall be filed and kept on file in the department. A\ncopy of the decision shall be delivered or mailed to the attorney of\nrecord of the applicant and of each person who filed a notice of\nappearance, or to the applicant or such person directly if not\nrepresented by an attorney.\n