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(a) An approval or variance issued by the Department pursuant to these rules and regulations may be modified, suspended or revoked at any time upon the Department's initiative, on any of the grounds set forth in paragraphs (1) through (5) of this subdivision.
(1) Materially false or inaccurate statements in the approval or variance application or supporting documents;
(2) Failure by the person named in the approval or variance to comply with any terms or conditions of the approval or variance;
(3) The scope of the project, as described in the application, is exceeded;
(4) Newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or rules and regulations since the issuance of the existing approval or variance; or
(5) Noncompliance with previously issued approval or variance conditions, orders of the Commissioner, or with any provisions of the rules and regulations of the Department related to the activity.
(b) The Department shall send a notice of intent to modify, suspend or revoke an approval or variance to the person named in the approval or variance by certified mail, return receipt requested or by personal service. The notice shall specify the ground or grounds on which the modification, suspension, or revocation is sought, as well as the alleged facts on which the modification, suspension, or revocation is based.
(c) Within fifteen calendar days of receipt of a notice of intent, the person named in the approval or variance may submit a written statement to the Department, giving reasons why the approval or variance should not be modified, suspended or revoked. Failure by such person to timely submit a statement shall result in the Department's action becoming effective on the date specified in the notice of intent.
(d) Within fifteen calendar days of receipt of such person's statement, the Department shall either:
(1) Rescind the notice of intent based on a review of the information provided by such person;
(2) Confirm the Department's intent to modify, suspend, or revoke the approval or variance as stated in the notice of intent; or
(3) Amend the Department's notice of intent, specifying the Department's revised intent to modify, suspend, or revoke the approval or variance.
(e) If the Department confirms or amends its intent to modify, suspend, or revoke the approval or variance, the person named in the approval or variance may request a hearing on the Department's determination by submitting a petition in writing to the Office of Administrative Trials and Hearings ("OATH"), and sending a copy of the petition to the Commissioner, within thirty (30) days of receipt of confirmation of the Department's intent, in accordance with the following:
(1) Form and content of petition. The petition must state the name, address, and email address of the petitioner and must include a short and plain statement of the matters to be heard by OATH. The following documents must be included with the petition: the Department's notice of intent to modify, suspend, or revoke the approval or variance; the petitioner's statement giving reasons why the approval or variance should not be modified, suspended or revoked; the Department's confirmation or amendment of its intent; and a completed OATH intake sheet. Blank intake sheets are available from the Department.
(2) Department response. Within twenty (20) days of receipt of the petition, the Commissioner may respond to the petition. If the Commissioner responds, the Commissioner must include the record on which the determination was based. A copy of any response shall be sent to the petitioner.
(3) Proceedings before the OATH Trials Division. Upon receipt of the petition for a hearing, OATH shall promptly schedule a hearing at a time and date which shall not be less than thirty (30) days, nor exceed one hundred twenty (120) days, from the date of receipt by OATH of the petition for a hearing unless the parties and the ALJ agree to another date. The hearing may be held in the district of the Department where the activity that is the subject of the order is located, except that hearings may be held at the Department's offices in Kingston, 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. The hearing may also be held by video conferencing or other electronic means, or as otherwise agreed to by the parties and the ALJ. Notice of such hearing shall be provided in writing to the petitioner and to the Department.
(4) Burden of proof. The Department shall have the burden of proving, by a preponderance of the evidence, facts supporting the modification, suspension or revocation.
(5) The hearing shall be held before an OATH ALJ. The ALJ shall cause a record of the hearing to be made, and shall make a recommendation to the Commissioner within thirty (30) 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 approval or variance should be modified, suspended, or revoked and the reasons therefor. A transcript of the record of the hearing shall be made available at the petitioner's request and expense.
(f) Within thirty (30) days of receipt of the recommendation of the ALJ, the Commissioner shall issue a final decision approving, rejecting, or modifying the ALJ's recommendation and shall serve that decision on the parties to the proceeding. If the Commissioner does not act within that time, the ALJ's recommendation shall be deemed adopted by the Commissioner.
(g) Where the Department proposes to modify, suspend, or revoke an approval or variance, and the person named in the approval or variance requests a hearing on the proposed modification, suspension, or revocation, the original conditions of the approval or variance shall remain in effect until a decision has been issued by the Commissioner pursuant to subdivision (f) of this section. At such time the modified conditions shall take effect.
(h) Nothing in this section shall preclude or affect the Department's authority to use the remedy of summary abatement or to issue a cease and desist order under these rules and regulations, or any other law or regulation or to seek injunctive relief to enforce these rules and regulations, or any other law or regulation, in a court of competent jurisdiction.
(Amended City Record 10/30/2019, eff. 11/29/2019)
(a) General requirements.
(1) A noncomplying regulated activity may be continued except where specifically prohibited from continuing by these rules and regulations.
(2) A noncomplying regulated activity shall come into compliance with these rules and regulations where specifically required to do so by these rules and regulations.
(3) Should any noncomplying regulated activity cause contamination to or degradation of the water supply, such that the activity is a threat to the life, health, or safety of water supply users, the Commissioner may order that such noncomplying regulated activity conform either in whole or in part to the requirements of these rules and regulations, immediately or within a limited period of time at the Commissioner's discretion, or be discontinued immediately. Any person who receives such an order may request a hearing on such order in the manner provided in 15 RCNY § 18-29.
(4) Any owner or operator of a noncomplying regulated activity who was not required by these rules and regulations to notify the Department pursuant to paragraph (1) of subdivision (b) of this section, may request, in writing, a determination from the Department that such property or activity is a noncomplying regulated activity. The written request shall include a description of the property or activity and its location, and the name, telephone number, and email address of a contact person. The Department shall determine, based upon the submission, whether the property or activity is a noncomplying regulated activity, and shall notify the owner or operator of such determination in writing.
(b) Subsurface Sewage Treatment Systems. The regulations applicable to discontinuation, and the standards for alteration or modification, of noncomplying regulated activities that are subsurface sewage treatment systems are set forth in 15 RCNY § 18-38(b).
(c) Storage of hazardous substances, storage of petroleum products, and the siting of junkyards and solid waste management facilities.
(1) No noncomplying regulated activity involving storage of hazardous substances, storage of petroleum products, or the siting of junkyards and solid waste management facilities shall be substantially altered or modified without the prior review and approval of the Department. The Department shall review and approve such an alteration or modification in accordance with the standards and procedures set forth in Subchapter F (variances).
(i) Such a noncomplying regulated activity may be reduced in size or extent, or replaced with a regulated activity that complies with the provisions of these rules and regulations, without such review and approval provided that such reduction does not cause any increase in any existing discharge or any increase in the potential for contamination to or degradation of the water supply.
(2) In the case of storage of hazardous substances, storage of petroleum products, and the siting of junkyards and solid waste management facilities, a noncomplying regulated activity must come into compliance with these rules and regulations if, for any reason, there is discontinuation for a period of two consecutive years. If it cannot come into compliance, it must permanently desist. A period of discontinuation shall commence on the date when regular or seasonal use ceases. Incidental or illegal use of an unoccupied structure shall not be sufficient to interrupt a period of discontinuation, and intent to resume a noncomplying regulated activity shall not confer the right to do so. The burden of proof for showing that a noncomplying regulated activity has not been substantially discontinued shall be on the owner or operator.
(Amended City Record 10/30/2019, eff. 11/29/2019)
(a) An applicant may appeal a final determination issued by the Department under these rules and regulations by filing a petition in writing with the Department and with the New York City Office of Administrative Trials and Hearings, Trials Division ("OATH") within thirty (30) days of the date the determination was mailed. The petition shall state the name, address, and email address of the petitioner and shall include a short and plain statement of the matters to be adjudicated, identifying the approval or variance sought by the petitioner with citation to the applicable provisions of these rules and regulations, the regulated activity for which the Department issued the determination, the proposed location of the activity, and the date of the Department's determination. The petition should also indicate whether the petitioner is requesting a hearing. A copy of the determination being appealed 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) The following determinations of the Department are appealable:
(1) A denial of an application for approval of a regulated activity.
(2) A denial of an application for a variance.
(3) The imposition of a substantial condition in an approval of a regulated activity.
(4) The imposition of a substantial condition in a grant of a variance.
(c) Petitions for appeal shall be referred to a City administrative law judge (ALJ) for hearing, where allowed by this section, and determination as defined in subdivision (g).
(d) The following issues are reviewable on appeal:
(1) Whether the regulated activity proposed by the petitioner will be in compliance with the requirements of these rules and regulations.
(2) Whether the imposition of a substantial condition in an approval of a regulated activity is appropriate to ensure that the regulated activity will comply with the requirements of these rules and regulations.
(3) Whether the Commissioner has abused his or her discretion in denying a request for a variance or in imposing a substantial condition in a grant of a variance.
(4) Except where the Department has acted as lead agency, the ALJ shall not review any issues relating to compliance with the State Environmental Quality Review Act (SEQRA).
(e) Except for appeals from determinations relating to variances, the petitioner shall have the burden of proving by a preponderance of the evidence that the proposed regulated activity is in compliance with the requirements of these rules and regulations. For appeals from determinations relating to variances, the petitioner shall have the burden of proving that the Commissioner has abused his or her discretion.
(f) (1) Appeals from determinations relating to individual sewage treatment systems or variances shall be decided on the record before the Department in its review of the application and any other written submissions allowed by the ALJ.
(2) A petitioner may request a hearing on appeals from all other determinations issued by the Department. If a petitioner does not request a hearing, the petition shall be decided on the record before the Department in its review of the application and any other written submissions allowed by the ALJ.
(i) The hearing may be held in the district of the Department in which the regulated activity was proposed to be located, except that hearings may be held at the Department's offices in Valhalla, New York for appeals relating to regulated activities in the East of Hudson watershed and at the Department's offices in Kingston, New York for appeals relating to regulated activities in the West of Hudson watershed. The hearing may also be held by video conferencing or other electronic means, or as otherwise agreed to by the parties and the ALJ.
(g) The ALJ shall submit a report to the Commissioner within 60 days after the record on appeal is closed with a recommendation as to whether the determination appealed from should be approved, modified or rejected. The Commissioner shall issue a final decision approving, rejecting, or modifying the ALJ's recommendation within 30 days of receipt of the ALJ's report. If the Commissioner does not act within that time, the ALJ's recommendation shall be deemed approved by the Commissioner.
(h) This section shall not apply to determinations made by local governments administering provisions of these rules and regulations pursuant to Subchapter G.
(i) An applicant shall have the option whether to file an appeal under this section and nothing in this section shall preclude an applicant from challenging the final determination issued by the Department in a court of competent jurisdiction, including instituting a proceeding under Article 78 of the Civil Practice Law and Rules, without first filing a petition for appeal pursuant to this section.
(Amended City Record 10/30/2019, eff. 11/29/2019)
(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, Trials Division ("OATH") within seven (7) days of receipt of the cease and desist order. The petition for a hearing shall state the name, address, and email 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. The hearing may also be held by video conferencing or other electronic means. 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 Department shall have the burden of proving by a preponderance of the evidence, facts supporting the cease and desist order.
(e) The failure of the petitioner to appear at the time, date and place set forth in the notice of hearing shall constitute a waiver of the right to a hearing on the cease and desist order and the matter will be dismissed.
(f) The hearing shall be held before an OATH 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. A transcript 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 within that time, the ALJ's recommendation shall be deemed adopted by the Commissioner.
(h) The results of the hearing on the cease and desist order do not affect the right of a person to apply for an approval or variance for a regulated activity under these regulations. In reviewing an application in connection with a regulated activity that has been the subject of a cease and desist order, however, the Department may 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.
(Amended City Record 10/30/2019, eff. 11/29/2019)
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