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(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)
The following activities are deemed by the Department to be "Type II" actions under SEQRA and its implementing regulations, and the Department shall not require an environmental impact statement or any other determination or procedure under SEQRA for these activities:
(a) Installation of a new individual sewage treatment system on an individual lot which is not within a subdivision, or within a subdivision which has been approved as of the effective date of these rules and regulations.
(b) Any alteration or modification of an existing individual sewage treatment system.
Subchapter C: Regulated Activities
Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of pathogenic materials into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this section that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.
(a) Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of hazardous substances or hazardous wastes into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this subsection that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.
(b) New storage facilities or new tanks at an existing facility for the storage of hazardous substances regulated under 6 NYCRR Part 596, and new process tanks, as defined in 6 NYCRR § 596.1(c)(35), which would be regulated under 6 NYCRR Part 596 if not for the exemption of process tanks under 6 NYCRR § 596.1(b)(3)(i), are prohibited within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 500 feet of a reservoir, reservoir stem, or controlled lake, except as provided in subdivision (d) of this section.
(c) The owner or operator of a new facility, or a new or substantially modified tank at an existing facility, for the storage of hazardous substances which is regulated under 6 NYCRR Part 596 and which is located between the limiting distance of 100 and 250 feet of a watercourse or wetland, must comply with the following conditions:
(1) The owner or operator shall submit to the Department a copy of any registration forms required by 6 NYCRR § 596.2(d) and (e) and any notification forms required by 6 NYCRR § 596.2(f) at the time such forms are submitted to the New York State Department of Environmental Conservation. When, on an emergency basis, new storage tanks are installed or existing storage tanks are substantially modified in order to protect public health, safety or the environment, the owner or operator shall notify the Department no later than two hours after the decision is made by the owner or operator to install or substantially modify the tank.
(2) The owner or operator shall submit to the Department a copy of any spill prevention report required to be prepared or updated by 6 NYCRR § 598.1(k), within thirty (30) days of preparing or updating such report.
(3) Failure to comply with the provisions of 6 NYCRR § 596.6 (spill response, investigation and corrective action) is a violation of these rules and regulations.
(4) Failure to comply with 6 NYCRR Part 599 (Standards for New or Modified Hazardous Substance Storage Facilities) is a violation of these rules and regulations.
(d) Subdivision (b) of this section shall not apply to:
(1) The storage of any hazardous substance that is a noncomplying regulated activity, including the replacement in kind of an existing storage tank provided that the replacement tank is designed and installed in compliance with Federal, State and local law. To the extent practicable, the new tank shall be located outside of the limiting distances of 100 feet of a watercourse or wetland, or outside of the limiting distance of 500 feet of a reservoir, reservoir stem, or controlled lake;
(2) The storage of hazardous substances where such storage is necessary to operate a wastewater treatment plant approved by the Department; and
(3) The storage of hazardous substances where such storage is made necessary by construction of a new facility or the alteration or modification of an existing facility used in connection with the operation of a public water supply system.
(e) [Repealed.]
Unless otherwise permitted by these rules and regulations, a discharge, or storage which is reasonably likely to lead to a discharge, of radioactive materials into the environment (including into groundwater), and which is reasonably likely to cause degradation of surface water quality or of the water supply, is prohibited. It shall be an affirmative defense under this section that such discharge, or storage likely to lead to a discharge, is either permitted or not prohibited under federal law, and is either permitted or not prohibited under state law.
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