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Where any notification, application or reporting to the Department required by these rules and regulations is to be made in writing, it shall be sent by certified mail to both the local Department representative in the portion of the watershed in which the regulated activity takes place and to the Engineering Section. Addresses are listed in 15 RCNY § 18-15.
(a) These procedures shall apply to the following:
(1) Applications for review and approval of regulated activities, including renewals of approvals of regulated activities. An application for renewal of an approval of a regulated activity shall be submitted to the Department no less than 180 days prior to the expiration of the approval. This deadline shall apply unless stated otherwise in a special condition of the approval.
(2) Applications for review and approval of a substantial alteration or modification of any regulated activity;
(3) Applications for review and approval of any substantial alteration or modification of a noncomplying regulated activity; and
(4) Applications for variances pursuant to Subchapter F of these rules and regulations.
(b) The applicant shall meet the following requirements:
(2) Any person proposing to undertake any activity listed in 15 RCNY § 18-14 which requires the review and approval of the Department, shall submit to the Department, at the address of the Department representative for the area where the regulated activity is to be undertaken set forth in 15 RCNY § 18-15, an application for review and approval which includes a plan of the activity which meets the requirements of this subchapter and any additional requirements for the specific activity set forth in these rules and regulations. Failure by the applicant to submit information to the Department or to follow the Department procedures set forth in these rules and regulations is sufficient grounds to deny the approval.
(3) Any person seeking approval of an activity may be subject to such terms and conditions as the Department may require, including time limitations and limitations on transfer of the approval given by the Department.
(4) (i) An applicant shall affirmatively state in the application whether any enforcement action has been commenced during the five (5) years preceding the application against the applicant, or any principal or affiliate of the applicant, for alleged violations of law related to the specific regulated activity for which the approval is sought, or related to the facility or site at which the activity is located. The applicant shall supply the following information with respect to each enforcement action: the agency or entity commencing the action, the date of commencement, the facility location and address where the alleged violation occurred, and disposition of the action.
(ii) Failure to fully and accurately disclose any material information required to be disclosed pursuant to subparagraph 4(i) shall be a basis for the Department to deny a permit application.
(iii) Failure to cure any adjudicated violation of this Chapter or any law, rule or regulation enforced by the Department shall be a basis to deny a permit application.
(iv) If the Department or the City has commenced an enforcement action against the applicant for violations of law related to the facility or site at which the activity for which the approval is sought is located, the Department may suspend processing of the application until such alleged violations are cured.
(5) Any property owner may request that the Department perform a site visit and evaluation to determine and flag the presence of a watercourse, reservoir, reservoir stem or controlled lake on the owner's property. If the property owner supplies the Department with a surveyor's map of the property which includes a representation of the flagged watercourses, reservoirs, reservoir stems or controlled lakes identified by the Department, the Department shall confirm or annotate the findings upon the surveyor's map as soon as is practicable. A confirmed survey map shall be binding upon the Department for five years following the date of the confirmation.
(6) If an applicant for Department review and approval of a regulated activity requests that the Department conduct a site visit and evaluation to determine and flag the presence of a watercourse, reservoir, reservoir stem or controlled lake on the applicant's property the Department shall do so as soon as is practicable. If the applicant supplies the Department with a surveyor's map of the property which includes a representation of the flagged watercourses, reservoirs, reservoir stems or controlled lakes identified by the Department, the Department shall confirm or annotate the findings upon the surveyor's map within 20 business days of receipt thereof. A confirmed survey map shall be binding upon the Department for five years following the date of the confirmation. The absence of a Department confirmed surveyor's map will not cause an application to be considered incomplete.
(c) An application shall contain the following information:
(1) An application for the review and approval of any activity listed in 15 RCNY § 18-14 shall provide a description of the activity, the location and topography of the area of the activity, identification of any existing structures at the location, and any engineering, construction or other plans which detail the methods to be used in undertaking the activity such that it shall meet the requirements of this subchapter and any additional requirements for the specific activity set forth in these rules and regulations.
(2) An application for review and approval of any activity listed in 15 RCNY § 18-14 shall include a copy of any Environmental Assessment Form (EAF), and either a Draft Environmental Impact Statement (DEIS) or a determination of nonsignificance by the lead agency, where such documents are prepared pursuant to Article 8 of the Environmental Conservation Law and the rules and regulations promulgated thereunder.
(3) When a regulated activity requires a related approval from any other agency or more than one approval from the Department, the application for review and approval shall include a list of such approvals which the applicant knows to be required, and a statement of the status of any required approval at the time of filing of the application with the Department.
(4) An application for review and approval of any regulated activity shall include the name, address, telephone number, email address, and fax number of the applicant or the applicant's authorized representative, and of the design professional(s), if any, involved in preparing the application.
(d) Review and Approval Procedures.
(1) The applicant proposing to engage in any activity listed in 15 RCNY § 18-14 which requires the review and approval of the Department shall certify in writing that she or he believes that the application is complete and in compliance with the requirements of this subchapter and any additional requirements for the specific activity set forth in these rules and regulations.
(2) An application is complete when it is determined by the Department to contain sufficient information for the purpose of commencing review of the application. The Department retains the right to seek additional information in order to enable the Department to make a determination pursuant to these rules and regulations. Within ten (10) days of receiving an application for review and approval of a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision, or within twenty (20) days of receiving any other type of application for review or approval, the Department shall either:
(i) Notify the applicant in writing that the application is complete and that the Department shall commence its review; or
(ii) Notify the applicant in writing that the application is incomplete and specifically request all additional information from the applicant as the Department deems necessary. If additional information is requested or comments are issued by the Department that need to be addressed by the applicant, the twenty (20) day period described in paragraph (d)(4) of this subdivision or the forty-five (45) day period described in paragraph (d)(5) of this subdivision shall not commence to run. The Department shall notify the applicant in writing within ten (10) days of receiving the additional information that has been requested either that the application is complete and that the Department has commenced its review or that further information is required.
(iii) Except in cases where the applicant has submitted false or misleading information or where a change in relevant law has occurred or changes have been proposed for the project, the Department may require further information based only upon the additional information submitted by the applicant or new issues raised by such information. In addition, the Department may also require further information based on a change in ownership of the property, the identity of the applicant, or the identity of the applicant's owners, principals, shareholders, directors, or officers.
(3) If the Department fails to notify an applicant in writing of its determination as to the completeness or incompleteness of the application within the time periods set forth in paragraph (d)(2) of this subdivision, the applicant may notify the Department of its failure by means of certified mail, return receipt requested, to the local Department representative identified in 15 RCNY § 18-15 who is responsible for processing the application and a copy to the Engineering Section. If the Department fails to notify the applicant of its determination as to the completeness or incompleteness of the application within ten (10) business days of receiving the notice, the application shall be deemed complete as of the eleventh day.
(4) The Department shall notify the applicant in writing of its determination within twenty (20) days of determining that an application for review and approval of a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision is complete pursuant to the procedures set forth in paragraph (d)(2) of this subdivision unless the Department and the applicant mutually agree in writing upon an extension of the twenty (20) day review period. If, during the twenty (20) day review period, the Department requests revisions to the application, the review period shall be suspended from the date such request is made until the date on which the Department receives such revisions, provided that the Department shall have no fewer than ten (10) days from the date of receipt to issue a determination.
(5) For all applications for review and approval, other than for a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision, the Department shall notify an applicant in writing of its determination within forty-five (45) days of notifying the applicant that the application is complete pursuant to the procedures set forth in paragraph (d)(2) of this subdivision unless the Department and the applicant mutually agree in writing upon an extension of the forty-five (45) day review period. If, during the forty-five (45) day review period, the Department requests revisions to the application, the review period shall be suspended from the date such request is made until the date on which the Department receives such revisions, provided that the Department shall have no fewer than ten (10) days from the date of receipt to issue a determination.
(6) If the Department fails to notify an applicant in writing of its determination within the twenty (20) day time period as set forth in paragraph (d)(4) of this subdivision or the forty-five (45) day time period as set forth in paragraph (d)(5) of this subdivision, the applicant may notify the Department of its failure by means of certified mail, return receipt requested to the local Department representative identified in 15 RCNY § 18-15 who is responsible for processing the application and a copy to Regulatory and Engineering Programs. The notice shall contain the applicant's name, location of the proposed project, the office in which the application was filed, and a statement that a decision is sought in accordance with this subdivision. Any notice failing to provide this information will not invoke this provision.
(i) If the Department fails to notify the applicant of its decision within ten (10) business days of the receipt of such notice, the application shall be deemed approved subject to the standard terms and conditions applicable to such an approval.
(7) Notwithstanding the time period for notifying an applicant of the Department's determination specified in paragraphs (d)(4), (d)(5) and (d)(6) of this section, if a lead agency has determined that a project may have a significant effect on the environment for purposes of the State Environmental Quality Review Act (SEQRA), such time periods shall be suspended pending receipt from the lead agency of either a Final Environmental Impact Statement (FEIS) or a determination of nonsignificance. Upon receipt of either document, the time periods shall resume, provided, however, that the Department shall have at least twenty (20) days to notify an applicant of its determination.
(8) Notwithstanding the time periods for decisions specified in this subdivision, the Department may condition an approval on the applicant providing satisfactory proof of any bonds required by the Department within thirty days of the applicant receiving the conditional approval from the Department.
(9) Any notice required or permitted to be given by the Department under this subchapter shall be given in such manner designed to reach the applicant, as the Department deems appropriate, and may include, but is not limited to, regular mail, certified mail return receipt requested, or telecopier.
(Amended City Record 10/30/2019, eff. 11/29/2019)
(a) Notwithstanding any other provision of this subchapter, where an expedited review and approval of a regulated activity is necessary to respond to an imminent threat to the health and safety of humans or animals, or to respond to a substantial imminent threat to property, an applicant seeking such review and approval shall notify the Department by telephone at the office of the local representative listed in 15 RCNY § 18-15, and shall meet with the Department within 24 hours. At the meeting the applicant shall present to the representative of the Department such available information regarding the regulated activity as would otherwise be required in a written application for review and approval of the regulated activity. Additionally, the applicant shall provide an explanation of the nature of the imminent threat that necessitates the expedited review. The Department shall review the information supplied by the applicant and shall issue a temporary determination to approve or disapprove the application within 24 hours of receipt of the information required by this subdivision.
(1) An applicant shall not be required to notify the Department before undertaking the routine repair and maintenance of a subsurface sewage treatment system, including, but not limited to, the pump-out of a septic tank, the repair of a broken lateral, the leveling of a distribution box, or the removal of a blockage.
(b) An approval granted by the Department pursuant to the emergency expedited review procedure shall be a temporary approval only, and shall not be considered to be a final approval of the Department. The temporary approval may contain conditions and time limitations and shall be limited to whatever actions are necessary to abate the imminent threat. A final approval shall be issued by the Department only after review and approval of a complete written application submitted in accordance with the procedures and standards set forth in subdivision (c) of this section, and any other applicable provisions of this subchapter and these rules and regulations.
(c) An applicant who has received a temporary approval for a regulated activity pursuant to the emergency expedited review procedure shall, within twenty days of such approval, submit a written application to the Department containing all of the information required to be provided by these rules and regulations for the particular regulated activity.
(a) If a proposed regulated activity requires one or more Department reviews or approvals, or the preparation of an Environmental Impact Statement pursuant to the State Environmental Quality Review Act, the prospective applicant may request an optional pre-application conference with the appropriate Department staff as a means of clarifying application procedures to be followed in order to comply with the requirements set forth in these rules and regulations.
(b) The request for a pre-application conference should be made at the earliest possible stage of the applicant's planning process. Such request shall be made in writing to the Department representative for the area where the regulated activity is to be undertaken, as set forth in 15 RCNY § 18-15. A mutually agreed upon time and place shall be scheduled for the pre-application conference.
(c) In order to assist the prospective applicant, prior to the preapplication conference, the prospective applicant shall submit to the Department representative the following information:
(1) A description of the proposed regulated activity, a site plan or sketch showing the location and topography of the area of the activity, identification of any existing structures at the location, and any engineering, construction or other plans which describe the methods to be used to meet the requirements of these rules and regulations;
(2) A statement of the prospective applicant's timetable and financial plans for carrying out the proposed regulated activity, if known;
(3) A statement of any governmental financial aid, facilities, or other assistance which the prospective applicant expects to be provided or plans to request for the regulated activity; and
(4) Such other information as the Department deems reasonably necessary.
(d) At the pre-application conference, the proposed project will be informally discussed. Based on information provided by the applicant, review and approval requirements will be identified and the applicant will be provided with guidance concerning the application and review process. Participation in the preapplication process shall not relieve an applicant from the requirements of obtaining all approvals otherwise necessary under these rules and regulations or any other law or rules and regulations, prior to commencing the regulated activity.
(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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