N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 598-5.4

Current through Register Vol. 46, No. 50, December 11, 2024

Section 598-5.4 - Termination of delivery prohibition

(a) A delivery prohibition may be terminated by the department on its own initiative or following the conclusion of review of compliance submissions or an expedited hearing.

(1) Department initiative. If the department terminates a delivery prohibition on its own initiative, the department will send a written notification confirming that the prohibition has been terminated. The department will send the notification via certified mail to the correspondence address listed in the current facility registration.

(2) Review of compliance submissions.

(i) At any time, information may be submitted to the department demonstrating that the facility is in compliance or the condition(s) that prompted the department to impose the prohibition has been corrected.

(ii) Upon submission of information to the department, the department will designate an individual to review submissions and provide a written decision as set forth below.

(iii) The designated individual will provide a written decision to the facility within five business days after the department receives the facility's submission. If the designated individual decides to deny termination of the delivery prohibition, the decision will set forth the reasons for the denial including a description of any deficiency in the information supplied by the facility.

(iv) The decision of the designated individual will constitute a final agency determination subject to challenge under article 78 of the Civil Practice Law and Rules.

(v) The department will retain the record generated during the staff review process for one year.

(3) Expedited hearing.

(i) Not later than 15 days after a tag is attached, the department will provide the facility with an opportunity to present proof on the limited issue of whether the department incorrectly determined that any tier 1 or tier 2 conditions existed at the facility. Notice of such hearing will be sent together with the written notification of any delivery prohibition issued pursuant to paragraphs 5.1(a)(2) or 5.1(b)(3) of this Part.

(ii) The department will bear the burden of proof at the expedited hearing.

(iii) The failure of the facility to appear at the time and place scheduled for the expedited hearing will constitute a waiver of the opportunity for an expedited hearing.

(iv) The expedited hearing will be held before a department hearing officer. The hearing officer will make a report to the commissioner setting forth the appearances, the arguments presented at the hearing, findings of fact and conclusions of law, and a recommended determination for consideration by the commissioner.

(v) The hearing officer may, to the extent practicable and without prejudice to the facility's right to have a timely expedited hearing, consolidate the expedited hearing regarding the existence of tier 1 or 2 conditions with any hearing regarding the facility's violation of other provisions of the Environmental Conservation Law, or any order, rule, or regulation issued or promulgated thereunder.

(vi) The hearing officer will have the powers and authority provided to a presiding officer under the State Administrative Procedure Act.

(vii) The expedited hearing will be recorded. If requested, the hearing officer will have a typed transcript of the record created.

(viii) The hearing officer will issue his or her report within 30 days after the close of the hearing, unless the parties agree to an extension of this time.

(b) Removal of a tag. Within two business days after a decision by the department that all tier 1 and tier 2 conditions at a facility have been resolved, the department will remove the tag, or authorize its removal.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 598-5.4

Adopted New York State Register July 19, 2023/Volume XLV, Issue 29, eff. 10/17/2023