New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter VI - General Regulations
Part 624 - Permit Hearing Procedures
Section 624.4 - Legislative hearing and issues conference
Universal Citation: 6 NY Comp Codes Rules and Regs ยง 624.4
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Legislative hearing.
(1) The ALJ will hear and receive the unsworn
statements of parties and non-parties relating to the permit applications. A
stenographic transcript of such statements will be made but will not be part of
the record of the proceeding, as defined by section
624.12 of
this Part (except as described in paragraph [3] of this subdivision or as
otherwise admitted into evidence).
(2) The ALJ may require that lengthy
statements be submitted in writing and summarized for oral
presentation.
(3) Whenever a DEIS
accompanies the application and the department is the lead agency as defined in
Part 617 of this Title, all statements made at the legislative hearing will
constitute comments on the DEIS and all substantive comments must be addressed
pursuant to the procedures set forth in section
617.14
of this Title.
(4) The statements
made at the legislative hearing do not constitute evidence but may be used by
the ALJ as a basis to inquire further of the parties and potential parties at
the issues conference.
(b) Issues conference.
(1) Following the legislative hearing, the
ALJ will schedule an issues conference (if one was not scheduled in the hearing
notice) which will be held in advance of the adjudicatory hearing. At the ALJ's
discretion, the issues conference may be reconvened at any time to consider
issues based on new information upon a showing that such information was not
reasonably available at the time of the issues conference. Upon a demonstration
that the public review period for the application prior to the issues
conference was insufficient to allow prospective parties to adequately prepare
for the issues conference, the ALJ shall adjourn the issues conference, extend
the time for written submittals or make some other fair and equitable provision
to protect the rights of the prospective parties.
(2) The purpose of the issues conference is:
(i) to hear argument on whether party status
should be granted to any petitioner;
(ii) to narrow or resolve disputed issues of
fact without resort to taking testimony;
(iii) to hear argument on whether disputed
issues of fact that are not resolved meet the standards for adjudicable issues
set forth in subdivision (c) of this section;
(iv) to determine whether legal issues exist
whose resolution is not dependent on facts that are in substantial dispute and,
if so, to hear argument on the merits of those issues; and
(v) to decide any pending motions.
(3) The ALJ will preside over the
issues conference and the participants will be department staff, the applicant
and any person who has filed a petition for party status pursuant to section
624.5 of
this Part.
(4) The ALJ may require
the submission of written argument to supplement the record of the issues
conference.
(5) Upon the completion
of the issues conference or as soon as practicable thereafter, but in no event
later than 30 days after the issues conference or the receipt of written
submissions thereafter, the ALJ will:
(i)
determine which persons will be granted party status;
(ii) determine which issues satisfy the
requirements of adjudicable issues as set forth in subdivision (c) of this
section and define those issues as precisely as possible;
(iii) rule on the merits of any legal issue
where ruling does not depend on the resolution of disputed issues of fact;
and
(iv) decide any pending motions
to the extent practicable.
(c) Standards for adjudicable issues.
(1) Generally applicable rules. Subject to
the limitations set forth in paragraphs (6), (7) and (8) of this subdivision,
an issue is adjudicable if:
(i) it relates to
a dispute between the department staff and the applicant over a substantial
term or condition of the draft permit;
(ii) it relates to a matter cited by the
department staff as a basis to deny the permit and is contested by the
applicant; or
(iii) it is proposed
by a potential party and is both substantive and significant.
(2) An issue is substantive if
there is sufficient doubt about the applicant's ability to meet statutory or
regulatory criteria applicable to the project, such that a reasonable person
would require further inquiry. In determining whether such a demonstration has
been made, the ALJ must consider the proposed issue in light of the application
and related documents, the draft permit, the content of any petitions filed for
party status, the record of the issues conference and any subsequent written
arguments authorized by the ALJ.
(3) An issue is significant if it has the
potential to result in the denial of a permit, a major modification to the
proposed project or the imposition of significant permit conditions in addition
to those proposed in the draft permit.
(4) In situations where the department staff
has reviewed an application and finds that a component of the applicant's
project, as proposed or as conditioned by the draft permit, conforms to all
applicable requirements of statute and regulation, the burden of persuasion is
on the potential party proposing any issue related to that component to
demonstrate that it is both substantive and significant.
(5) If the ALJ determines that there are no
adjudicable issues, the ALJ will direct that the hearing be canceled and that
the staff continue processing the application to issue the requested
permit.
(6) SEQRA issues.
(i) Department is the lead agency or there
has been no coordinated review.
(a) As part
of the issues ruling, the ALJ may review a determination by staff to not
require the preparation of an environmental impact statement. Where the ALJ
finds that the determination was irrational or otherwise affected by an error
of law, the determination must be remanded to staff with instructions for a
redetermination. In all other cases, the ALJ will not disturb the staff's
determination.
(b) Whenever the
department, as lead agency, has required the preparation of a DEIS, the
determination to adjudicate issues concerning the sufficiency of the DEIS or
the ability of the department to make the findings required pursuant to section
617.9
of this Title will be made according to the standards set forth in paragraph
(1) of this subdivision.
(ii) Another agency serves as the lead
agency.
(a) Whenever the lead agency has
determined that the proposed action does not require the preparation of a DEIS,
the ALJ will not entertain any issues related to SEQRA. Such issues may be
considered, however, if lead agency status is re-established with the
department pursuant to the provisions in section
617.6(f)
of this Title.
(b) Whenever the
lead agency has required the preparation of a DEIS, no issue that is based
solely on compliance with SEQRA and not otherwise subject to the department's
jurisdiction will be considered for adjudication unless:
(1) the department notified the lead agency
during the comment period on the DEIS that the DEIS was inadequate or deficient
with respect to the proposed issue and the lead agency failed to adequately
respond; or
(2) the department is
serving as lead agency for purposes of supplementing the FEIS. In such case,
only issues that are the subject of the supplementation will be considered for
adjudication;
(3) whenever issues
addressed in this subparagraph are eligible for adjudication, the determination
to require adjudication will be made according to the standards set forth in
paragraph (1) of this subdivision.
(7) UPA issues. The completeness of an
application, as defined in section
621.2(f)
of this Title, will not be an issue for adjudication. The ALJ may require the
submission of additional information pursuant to section
621.14(b)
of this Title.
(8) Department
initiated modifications, suspensions or revocations. The only issues that may
be adjudicated are those related to the basis for modification, suspension or
revocation cited in the department's notice to the permittee. Whenever such
issues are proposed for adjudication, the determination to require adjudication
will be made according to the standards set forth in paragraph (1) of this
subdivision.
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