N.Y. Comp. Codes R. & Regs. tit. 6 § 621.10

Current through Register Vol. 46, No. 19, May 8, 2024

Section 621.10 - Final decisions on applications

(a) The department or its agent shall mail to the applicant and its representative, if applicable, a decision in the form of a permit, a permit with conditions or a statement that the permit applied for has been denied, with an explanation for the denial. This must be done within the following time periods:

(1) for a minor project for which no public comment hearing has been held, on or before 45 days after the date the application was complete;

(2) for a major project for which no public comment hearing has been held , on or before 90 days after the date the application was complete;

(3) for any application for which a public comment hearing has been held, on or before 60 days after the receipt by the department of the complete hearing record;

(4) for any application for which an adjudicatory proceeding has been held, the decision will be issued pursuant to section 624.13 of this Title;

(5) for a project which a lead agency has determined may have a significant impact on the environment under SEQR, the time periods specified in this Part shall be suspended not less than 35 days prior to the date on which a final decision is required pursuant to this Part, pending receipt from the lead agency of either a final environmental impact statement, or a negative declaration. Upon receipt of these materials the time periods shall resume.

(6) Notwithstanding the time periods established in paragraphs (2) and (3) of this subdivision, for applications for Title V facility permits, the department may not issue a final decision unless the EPA has been provided 45 days to review any responsiveness summary, and the proposed permit issued by the department in accordance with subdivision (e) of this section. The public may petition the EPA to object to the issuance of the proposed permit and the EPA may bar issuance of the proposed permit (see Part 201 of this Title).

(7) If a decision is required to meet time frame(s) specified in a Federal statute or regulation, the department may issue its decision consistent with the time frames set forth in Federal statute or regulation, notwithstanding the time periods established in paragraphs (2) and (3) of this subdivision, or other review procedures identified in this Part.

(b) If the department or its agent fails to mail a decision within the time periods specified above, the applicant may make notice of that failure, by means of certified mail, return receipt requested, addressed to Chief Permit Administrator, New York State Department of Environmental Conservation, Division of Environmental Permits, 625 Broadway, Albany, NY 12233-1750. For any application for which an adjudicatory proceeding is held, notice must also be made in the same manner to the Chief Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, 625 Broadway, Albany, New York 12233-1550. If authority to issue and deny permits has been delegated by the commissioner to another agency, notice must also be made to the chief executive of such agency. Such notice must contain the applicant's name, location of the proposed project, the office in which the application was filed, the identification numbers assigned to the application in any notice from the department and a statement that a decision is sought according to this subdivision or ECL 70-0109(3)(b). Any notice failing to provide this information, including a notice that is incorrectly addressed, will not invoke this provision.

(c) If the department or its agent fails to mail the decision to the applicant within five working days of the receipt of such notice, the application will be deemed approved and the permit deemed granted, subject to the standard terms or conditions applicable to such a permit. Subdivisions (b) and (c) of this section do not apply to:

(1) delegated HWMF permits or RAPs; and

(2) title V facility permits, unless the department has satisfied all requirements established under this Part and Part 201 of this Title regarding notice and opportunity for review of draft permits by EPA, affected states and the public; or

(3) other federally enforceable air permits unless the department has satisfied all requirements for review of draft permits by the public.

(d) Notwithstanding the time periods for decisions specified above, the department or its agent will not be required to issue a decision on an application, nor will a permit be deemed issued, until the applicant has provided satisfactory proof of any public notice required, posted any bonds required, and paid all fees or costs assessed by the department.

(e) For delegated permits, the department will issue a responsiveness summary to relevant comments relating to such permits that were received during the public comment period or during any public comment hearing conducted pursuant to this Part. The provisions of this paragraph are not applicable to permits for which a final environmental impact statement otherwise satisfying the requirements of this subdivision has been prepared pursuant to section 617.9 of this Title. The responsiveness summary must:

(1) identify of any conditions in the final permit that are different from the conditions in the draft permit, and the reasons for the changes; and

(2) for Title V facility permits, be issued within 60 days of the date the application is complete except when a hearing is required. The responsiveness summary must also reference the procedures contained in Part 201 of this Title that the public must follow if they elect to petition the EPA to object to the issuance of the proposed permit.

(f) An application for a permit may be denied for failure to meet any of the standards or criteria applicable under any statute or regulation pursuant to which the permit is sought, including applicable findings required by article 8 of the ECL and its implementing regulations at Part 617 of this Title, or for any of the reasons set forth in section 621.13(a)(1)-(6) of this Part.

(g) When a project requires multiple DEC permits, the department will issue final decisions on all applications concurrently unless there is good cause not to do so.

(h) If the permit applied for has been denied or is issued with significant conditions attached, then the decision notification must include an opportunity for an adjudicatory proceeding to be held unless an adjudicatory proceeding pursuant to Part 624 of this Title has already been held on the application. If the permit application has not been the subject of an adjudicatory proceeding, the applicant may request an adjudicatory proceeding by writing to either the regional permit administrator or the chief permit administrator, as instructed in the decision notification, within 30 days of the date of the mailing of either the notice of denial or the permit with conditions. The permittee must also submit a copy of the written request for adjudicatory proceeding to the chief administrative law judge. The adjudicatory proceeding will commence within 60 days of the chief administrative law judge's receipt of the applicant's request.

(i) Maximum permit terms. In issuing permits pursuant to this Part, the department may specify a permit term up to the maximum provided in this subdivision. At its discretion, the department may specify a term shorter than the maximum. The maximum permit terms for each permit type subject to this Part are as follows:

(1) Use and protection of waters: 10 years;

(2) Water withdrawals and Long Island wells: 10 years;

(3) Wild, scenic and recreational rivers system: 5 years;

(4) Water quality certifications: 10 years or concurrent with Federal license or approval, whichever term is longer;

(5) State pollutant discharge elimination system:

(i) 5 years for delegated permits, and

(ii) 10 years for non-delegated permits;

(6) Air pollution control:

(i) 5 years for Title IV and Title V facility permits; and

(ii) an indefinite term for State facility permits, except for new or modified State facility permits, which shall receive a permit term not to exceed 10 years as provided for in section 201-5.3(a) of this Title;

(7) Liquefied natural gas and petroleum gas: 5 years;

(8) Mined land reclamation: 5 years;

(9) Freshwater wetlands: 10 years;

(10) Tidal wetlands: 10 years;

(11) Waste transporter and low-level radioactive waste transporter: 1 year;

(12) Solid waste management facilities: 10 years;

(13) Industrial hazardous waste management:

(i) 5 years for land disposal and incinerators; or

(ii) 10 years for all other hazardous waste facilities.

(14) Siting of industrial waste management facilities: none;

(15) Coastal erosion management: 10 years;

(16) Radiation control: 5 years; and

(17) Incidental take of threatened or endangered species: The permit term of an incidental take permit issued pursuant to this Part will run concurrently with the duration of an implementation agreement approved by the department pursuant to section 182.11(e) of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 621.10

Amended New York State Register November 9, 2016/Volume XXXVIII, Issue 45, eff. 11/9/2016

Amended New York State Register September 16, 2020/Volume XLII, Issue 37, eff. 9/16/2020

Amended New York State Register September 27, 2023/Volume XLV, Issue 39, eff. 12/26/2023