DEEP: The Hearing Process

Office of Adjudications

The Hearing Process
 
The Office of Adjudications conducts hearings to resolve cases involving permit applications, appeals of enforcement orders or appeals of licensing decisions, including the suspension and revocation of licenses issued by the Department of Energy and Environmental Protection (DEEP).
Hearing Officers, also known as Adjudicators, are the lawfully designated agents of the Commissioner of the DEEP. They are given the Commissioner’s authority to hear cases and issue a proposed decision or a final decision, depending on the nature of the matter before them.
Hearings are held to hear evidence and public comment concerning an application for a permit to conduct an activity with potential environmental impacts; to permit a respondent to contest an enforcement order issued by the Commissioner; and to provide an opportunity for a licensee to  challenge a decision to suspend or revoke a license.
 
Some hearings are required by law; some are held because a petition for a hearing (signed by at least 25 people) has been filed; and some are held because the Commissioner has exercised the discretion to hold a hearing where there is public interest in a particular application.  Although hearings are conducted on the issuance of some general permits, there are no statutory or regulatory provisions for a hearing on a registration for a general permit.  See Requesting a Hearing
 
The Parties
Applicants: The persons, companies or organizations applying for a permit or a license.
Respondents: The recipients of an enforcement order or notice of license suspension or revocation.
DEEP Staff: In most cases, staff members who have reviewed an application or recommended issuance of the order or the suspension/revocation of a license.
 
Intervening Parties: Intervention is the entry into a contested case hearing by an individual or organization with an interest in the outcome of that hearing. Intervening party status is granted pursuant to statute if the requirements set out in that statute are satisfied or if a written request states facts that show that a person or organization’s legal rights, duties or privileges will or may reasonably be expected to be affected by the decision in the proceeding, or that their participation is necessary for the proper disposition of the proceeding. (Note: Representatives of organizations must submit proof that he or she is authorized to seek intervention for that organization.)

Requests to intervene must be filed with the Office of Adjudications no later than five days before the start of the hearing.  If a late filing is allowed, the hearing officer has the discretion to place limitations on the participation of an intervening party or intervenor that files a late request.

For additional information, including the proper format for written requests to intervene, see General Statutes §4-177a and Regulations of Connecticut State Agencies §22a-3a-6(b) and (k). Also see Intervening in the Hearing Process
Non-Parties 
Intervenors:  If a person or organization files a written request which states facts that demonstrate that participation is in the interests of justice and will not impair the orderly conduct of the proceedings, they may be granted non-party status as an intervenor.  An intervenor may participate in the hearing process; however, this may be limited to certain issues and/or aspects of the hearing process, such as the extent to which they may present evidence, question witnesses, and inspect and copy records and other evidence.

Petitioners:  The person or organization that filed a request for a hearing on a permit application is called a petitioner.  Although not parties, petitioners receive notice of all public meetings and hearing dates and may participate in the hearing process as a member of the public.
The Prehearing Process
Status Conference – The parties meet with the hearing officer to briefly discuss the issues for hearing, the rest of the prehearing process and to set the dates for the hearing.  Any party not in attendance will be held to the schedule and any other matters agreed upon at the status conference.  Notice of this conference is sent to all parties, nonparties such as intervenors and petitioners and is posted on the DEEP Website.   The hearing officer also sets dates for a prehearing exchange of information and the prehearing conference.  On the date for the prehearing exchange, the parties file with the hearing officer and each other: a list of legal issues to be resolved; a list of witnesses with summaries of testimony; and a list of exhibits.  The actual exhibits may be filed with the prehearing exchange or, if directed by the hearing officer, at the prehearing conference. 
Prehearing Conference – At this meeting, the parties and the hearing officer review and discuss the issues, witnesses, and exhibits listed in the prehearing exchange.  The parties may stipulate to the issues for adjudication, to witness’ qualifications, and to exhibits in the interest of an efficient hearing.  The hearing officer will also review hearing procedures.
Hearing Notice – Notice of the date, location, and subject matter of a hearing is provided to the parties involved and to certain non-parties such as any intervenors or petitioners. Notice of a hearing on a permit application is also published in the newspaper.

The Hearing Process
 
Hearings are conducted according to the Uniform Administrative Procedure Act, CGS §§4-166 through 4-189 and the DEEP Rules of Practice, RCSA §§22a-3a-2 through 22a-3a-6). An impartial hearing officer presides over the hearing and issues a written decision. To ensure an unbiased decision, the hearing officer does not communicate with any party unless all of the parties are present. The hearing officer also does not speak to DEEP staff about the issues involved in a case before, during or after a hearing.
 
Burdens of proof -- In a permit application case, the applicant has the burden of demonstrating why the application should be approved and the permit granted.  In cases concerning an enforcement order or a license revocation or suspension, the DEEP has the burden of proving that the order should be upheld and enforced or that the license should be revoked or suspended. 
 
In every hearing, each party is given the chance to present a legal argument and offer relevant evidence to support their position in the form of written documents or oral testimony provided under oath and to cross-examine other parties' witnesses. This process, which may take many hours or even several days, is each party's only chance to establish a complete hearing record upon which the hearing officer will base a written decision. 

Public Comments -- Members of the public, referred to as speakers, may comment and offer information during the evening session of the hearing, which is held primarily for this purpose, usually at the location of the proposed activity. Speakers may also present evidence under oath; however, when doing so, they may be cross-examined or questioned by the parties. The hearing officer may limit a speaker's time in order to accommodate everyone who has signed up to speak.  Guidelines for Effective Public Comments.

Proposed and Final Decisions
 
After the hearing has concluded, the hearing officer reviews the entire record and issues a proposed or a final decision.  Generally, a hearing officer issues a proposed final decision in a permit case, which recommends that the Commissioner deny an application, issue a permit as proposed or issue a permit with modifications.  Hearing officers render final decisions in enforcement order or license suspension/revocation cases.
 
If a proposed final decision is issued, the parties may file exceptions to that decision within 15 days after it has been released and may also ask the Commissioner to hear oral argument on those exceptions.  If no exceptions are filed, the Commissioner then issues a final decision.
 
As allowed by law, the parties have the right to appeal all final decisions to the Superior Court.
 

 
Notice:  This document is intended to provide basic information to the public; it is not intended to be legal advice and should not be considered as such. The Office of Adjudications cannot provide any advice regarding participation in the hearing process or discuss specific cases.  Legal assistance should be provided by an attorney.
 
General information on the permit application process is also available from the DEEP Permit Assistance Office. Specific information on a permit application or an enforcement order is may also be available from the various DEEP Bureaus: Air Management, Materials Management and Compliance Assurance, and Water Protection and Land Reuse.