For the purpose of these Rules and Regulations:
(a) Landfill operations as defined hereunder, shall include only the reception of materials for final disposition at piers, lands, and lands under water for the purpose of landfilling and/or land improvement, and shall be conducted in accordance with all Federal, State and local laws, and these Rules and Regulations.
(b) Except as provided in the preceding subdivision, no landfill operation shall be conducted on any privately-owned lands anywhere in the City of New York.
(c) The owners of lands below established grades or of lands under water may contract to fill in such lands to grades approved by the Department of Sanitation (D.O.S.), the Bureau of Highways, the Department of Buildings, the Department of Ports and Trade, and any other agency/authority having such jurisdiction. Only clean fill will be permitted consisting of earth, dirt, concrete, rock, gravel, stone, and sand. Landfill work cannot commence until written approval from the Department of Sanitation as set forth below in 16 RCNY § 3-03(c) has been received.
(d) A separate permit is required for each pier, land or lands under water to be used as a reception point for fill materials.
(e) The Letter of Acknowledgement from the Department of Sanitation for a landfill operation shall not be deemed to authorize the depositing of materials within the lines of mapped streets or of streets legally opened.
(f) All permittees/contractors, applicants for permits and all owners of property conducting landfill operations shall afford the Commissioner of Sanitation and his authorized representatives access at all times to such areas.
(g) For the purpose of this Section, the term "landfill operations" shall mean: Final disposition, grading, leveling and/or compacting of fill materials for the purpose of land improvement, or change of the existing property grade, the filling of lands below established grades or of lands under water to established grades, or to grades approved by the Department of Sanitation, the Bureau of Highways, Department of Ports, International Trade and Commerce, and/or Department of Buildings. The phases of landfill work covered by the Department of Sanitation's permit includes all stages of the landfill work noted above.
(h) No fill shall be accepted at any landfill operation that is not clean fill as defined in 16 RCNY § 3-02(c). Any materials dumped at such locations that do not meet the clean fill definition shall immediately place the operator in violation of these Regulations.
(i) No processing, screening or sorting of acceptable materials will be allowed at any landfill operation, unless the permittee obtains the required approvals as stated in 16 RCNY § 3-05(b)(9). It is not permissible to bring loads of unacceptable material to the site for the purpose of sorting or screening.
(j) Fee. The fee for each permit to operate shall be set by the city. Each permit, if not sooner canceled or revoked, shall continue in effect for the period noted on the permit. No part of such fee shall be prorated or refunded for non-use or for discontinuance of disposition activities or for the inability of the permittee to avail himself of the privilege. No portion of such fee shall be prorated or refunded for any period during which the permit is suspended for any reason nor for any remaining period of the term of the permit subsequent to revocation by the Commissioner of Sanitation for cause.
(k) Compliance with other laws and rules. Each property owner and landfill contractor filling in lands or lands under water shall comply with all Federal, State and local laws and all orders and rules and regulations of the Commissioner of Sanitation made or adopted under § 16-117.1 or 16-131, or by the Commissioner of Consumer Affairs under Subchapter 18 of Chapter 2 of Title 20 of the Administrative Code, and/or the Commissioners of the Bureau of Highways, the Department of Buildings, Ports, International Trade and Commerce, Army Corps of Engineers, or New York State Department of Environmental Conservation if applicable.
(l) Applicability to public agencies except Department of Sanitation. All sections of these Rules and Regulations prescribing the procedures for landfill operations by owners of private property and their landfill contractors shall also apply to public agencies. Sanitary landfills operated by the New York City Department of Sanitation are exempt from these Regulations.
(m) Department's discretion to suspend or revoke Permits. Notwithstanding any provisions of the permit to the contrary, the Department specifically reserves the right to suspend this permit temporarily or to revoke it permanently at any time when the Commissioner, or his/her designee, in the exercise of his or her reasonable discretion, has reasonable cause to find that the holder of the permit has violated the terms of any of these Rules and Regulations or of the applicable sections of the Administrative Code or the Environmental Conservation Law ("ECL") or has violated any other applicable permit condition, law, rule or regulation.
(1) Where the Commissioner or his/her designee has reasonable cause to find a violation, the Commissioner or his/her designee, in the Commissioner's or the designee's sole discretion, may either suspend the permit, effective immediately, for a period not to exceed thirty (30) days, or revoke the permit, so long as the permittee/contractor is given notice of such finding of a violation and a final determination is made ultimately upon a record and after an opportunity for a hearing, in accordance with this subdivision (m).
(i) Notice shall be given to the permittee/contractor within a reasonable time prior to the hearing described in subparagraph (ii) of this paragraph (1), which notice shall include:
(A) the date, time and place of the hearing to be conducted by a duly designated hearing officer of the Office of the Deputy Commissioner of Trials of the Department (a "Hearing Officer") or by an alternative dispute resolution proceeding (an "ADP") as described in paragraph (2) of this subdivision (m),
(B) the legal authority and jurisdiction under which the hearing is to be held, including a reference to the particular sections of the laws and/or rules involved, and
(C) a short and plain statement of the matters to be adjudicated, including reference to the particular sections of the permit conditions, laws and/or rules involved.
(ii) All permittees/contractors shall be afforded an opportunity for a hearing within a reasonable time. However, such hearing shall take place within five (5) days where the Commissioner or his/her designee, having had reasonable cause to find a violation, suspends the permit immediately (a "Pre-hearing Suspension") upon such finding, unless the permittee/contractor requests an adjournment of such hearing for reasonable cause shown. At the hearing the permittee/contractor shall be afforded the opportunity to be represented by counsel, to issue subpoenas or request that a subpoena be issued, to call witnesses, to cross-examine opposing witnesses and to present oral and written arguments on the law and facts. Adherence to formal rules of evidence is not required. No ex parte communications relating to other than ministerial matters regarding a proceeding shall be received by a Hearing Officer, including internal agency directives not published as rules.
(iii) Findings of fact shall be based exclusively on the record of the proceeding as a whole.
(iv) The hearing shall be transcribed or recorded. A copy of the transcript or record, or any part thereof, shall be made available to the permittee/contractor for a reasonable cost upon request.
(v) Upon the conclusion of the hearing, the Hearing Officer shall make proposed findings of fact and law, which findings shall be supported by a preponderance of the credible evidence, and shall recommend a final decision, determination or order, forwarding such proposed findings and recommendations to the Commissioner who may adopt, reject or modify the Hearing Officer's proposals and recommendations.
(vi) Any recommended decision, final decision, determination or order shall be in writing, or stated in the record if the permittee/contractor is present, and shall include findings of fact, conclusions of law and penalties to be assessed, if any. A copy of any written recommended decision, final decision, determination or order shall be delivered or mailed forthwith to the permittee/contractor.
(vii) If the Commissioner finds in the final decision, determination or order that the permittee/contractor has committed a violation, then in the Commissioner's sole discretion, the permit shall be either suspended for a period not to exceed thirty (30) days, which suspension may include credit for any period of a Pre-hearing Suspension, or revoked. A suspension may also include a direction to the permittee/contractor to take any remedial action necessary to cure the violation of the terms of any applicable permit condition, law, rule or regulation.
(viii) In the event of a Pre-hearing Suspension, the permittee/contractor may show, pending either the hearing or the rendering of a final decision, determination or order, that he/she has come into compliance with the applicable permit conditions, laws, rules and regulations, upon which such a Pre-hearing Suspension may be lifted by the Commissioner or his/her designee, and the permittee/contractor may resume normal operations. In the event that this permit is suspended after either a hearing or the rendering of a final decision, determination or order, the permittee/contractor may show that he/she has come into compliance with the applicable permit conditions, laws, rules or regulations within the specified period of suspension, upon which the suspension may be lifted, in the Commissioner's sole discretion, and the permittee/contractor may resume normal operations.
(2) The Commissioner or his/her designee, may grant the permittee/contractor the option of participating in an ADP once proper notice has been given, in lieu of the formal administrative proceeding established in paragraph (1) of this subdivision (m).
(i) An ADP shall consist of a meeting between the permittee/contractor and the Commissioner's representative, wherein the permittee/contractor may offer a refutation, explanation, excuse or justification relative to a violation, which violation the Commissioner or designee had reasonable cause to find. ADP proceedings shall be informal and non-adversarial. However, the permittee/contractor shall be permitted to have representation at this ADP. It is not required that these proceedings be transcribed or recorded, although all permittees/contractors shall be permitted to do so at their own expense.
(ii) The Commissioner's representative shall be empowered to make all final findings and determinations in an ADP. The penalty to be assessed, if any, may include a suspension of the permit for a period not to exceed fourteen (14) days, including a direction to the permittee/contractor to take any remedial action necessary to cure a violation.
(iii) By voluntarily choosing an ADP, the permittee/contractor shall be deemed to have waived his or her rights to the formal administrative proceedings contained in paragraph (1) of this subdivision (m), unless the permittee/contractor, within forty-eight (48) hours of the receipt of the final determination of the Commissioner's representative, otherwise notifies the Commissioner in writing that he/she has decided not to accept such determination.
(iv) Unless the Commissioner in his or her sole discretion specifically decides otherwise, in the following circumstances the option of an ADP shall not be available:
(A) where the violation involves material used in the fill operation containing hazardous waste (as defined in the ECL Article 27, Title 9 and Article 71, Title 27), infectious waste (as defined in the ECL Article 27, Title 15 and in the New York State Public Health Law Article 13, Title 13), potentially infectious waste (as defined in the Administrative Code § 16-120.1), asbestos, wood, or other such unsuitable items, including, but not limited to: tires, iron, appliances, mattresses, putrescibles and household goods; or
(B) where the permittee/contractor has been found to have committed a violation of any applicable permit condition, law, rule or regulation in any adjudicatory proceeding provided for by this subdivision (m) on two or more occasions, all of which violations having been committed within a consecutive twelve (12) month period.
(n) Criminal punishment and other enforcement powers. In addition to any suspension or revocation of a permit, the permittee/contractor, subcontractor, property owner or any other person, firm or corporation may be prosecuted and convicted in the Criminal Court of the City of New York for a violation of any provision of § 16-127 of the Administrative Code or of any rule or regulation adopted by the Commissioner pursuant to §§ 16-117.1 or 16-131 of the Administrative Code and upon such conviction punished by a fine not exceeding one hundred dollars ($100) or imprisonment for ten days or both, even though such prosecution and conviction be based, in whole or in part on the same facts or occurrences upon which any suspension or revocation of permit is based. A permit may be suspended or revoked for cause other than that which would support a prosecution and conviction in the Criminal Court of the City of New York.