N.Y. Comp. Codes R. & Regs. tit. 6 § 624.1

Current through Register Vol. 46, No. 41, October 9, 2024

Section 624.1 - Applicability and Definitions

(a) This Part applies to hearings conducted by the department arising out of the following circumstances and supersedes any inconsistent regulations except to the extent explicitly noted.

(1) a determination pursuant to subdivision 621.8(b) of this Title by department staff to refer a matter to the Office of Hearings and Mediation Services for an adjudicatory proceeding (on identification by department staff of potential substantive and significant issues);

(2) a request made by an applicant in conformance with the provisions of subdivision 621.10(h) of this Title (based on department staff's denial of permit or attachment of significant conditions);

(3) a determination made by department staff to refer a matter to Office of Hearings and Mediation Services for an adjudicatory proceeding pursuant to subdivision 621.15(f) of this Title (conceptual review);

(4) a request made by an applicant in conformance with the provisions of subdivision 621.11(g) of this Title (based on department staff's denial or conditioning of a permit in response to an application to renew or modify);

(5) a request made by a permittee in conformance with the provisions of subdivision 621.13(d) of this Title (based on department staff's proposed modification, suspension or revocation of a permit). However, where the basis for modification, suspension or revocation pursuant to section 621.13 is founded on matters that, in whole or in substantial part, constitute a violation of the Environmental Conservation Law (ECL), its implementing regulations, an order or permit, as defined in subdivision (e) of this section, issued by the department, the provisions of Part 622 of this Title govern;

(6) any circumstance comparable to those set forth in paragraphs (1), (2), (3), (4) or (5) of this subdivision that arises out of any permit, as defined in subdivision (e) this section, that is not subject to ECL article 70 or Part 621 of this Title. The circumstances where this Part applies include, but are not limited to, permits for aquatic pesticide applications, the registration of pesticides, oil and gas well spacing and integration proceedings, oil facility certifications and water supply rate disputes.

(b) The provisions of this Part do not apply to the conduct of public comment hearings except those that are included in a notice of hearing issued pursuant to section 624.3 of this Part.

(c) The provisions of this Part do not apply to the determination of disputed environmental regulatory program fees and penalties that are assessed pursuant to ECL article 72.

(d) The provisions of this Part apply to those proceedings in which the determination to hold an adjudicatory proceeding was made on or after the effective date of these regulations.

(e) Definitions. Whenever used, in this Part, unless otherwise expressly stated, the following terms have the meanings indicated in this subdivision. The definitions in this subdivision are not intended to change any statutory or common law meaning of these terms.

(1)Adjudicatory proceeding or proceeding means a proceeding conducted pursuant to ECL section 70-0119 and article 3 of the State Administrative Procedure Act and this Part. The adjudicatory proceeding is presided over by an administrative law judge and may include public comment hearings, issues conferences, and evidentiary hearings held pursuant to this Part to determine the legal rights, duties or privileges of the named parties and potential parties on a record and after an opportunity for a hearing.

(2)Administrative law judge or ALJ means the commissioner's representative who conducts the proceeding.

(3)Affidavit means a voluntary written declaration or statement of facts made by a declarant with personal knowledge of the facts and confirmed by the oath of the declarant before a person having authority to administer the oath, such as a notary public.

(4)Affirmation of an attorney means the statement of an attorney admitted to practice in the courts of this State, who is not a party to a proceeding, subscribed and affirmed by the attorney to be true under the penalties of perjury. An affirmation may be served or filed in a proceeding in lieu of and with the same force and effect as an affidavit.

(5)Amicus status means a person who is not otherwise eligible for full party status but who is allowed to file a brief and, at the discretion of the ALJ, present oral argument, but does not have any other rights of participation or submission.

(6)Applicant means the person or permittee who has applied for one or more permits from the department or the modification or renewal of the permit(s). In the case of a water supply rate dispute, the petitioning party will be the applicant.

(7)Argument means opinions or viewpoints, as distinguished from evidence.

(8)Commissioner means the Commissioner of Environmental Conservation or the commissioner's designee.

(9)CPLR means the Civil Practice Law and Rules.

(10)Day or days means calendar days, as defined in section 19 of the General Construction Law, unless otherwise specified in this Part.

(11)DEIS means the draft environmental impact statement prepared in response to the requirements of article 8 of the ECL.

(12)Delegated permit means delegated permit as defined in Part 621 of this Title.

(13)Department means the Department of Environmental Conservation of the State of New York.

(14)Department staff means those department personnel participating in the proceeding, but does not include the commissioner, any personnel of the Office of Hearings and Mediation Services, the ALJ or any person advising or consulting with the commissioner or ALJ.

(15)Disclosure means the disclosure of facts, documents, or other things that are known by or in the possession of a person and that are material and necessary to the person requesting the disclosure as a part of the requester's case.

(16)Draft permit means a document prepared by department staff that contains terms and conditions staff finds are adequate to meet all legal requirements associated with the permit, but is subject to modification as a result of public comments or an adjudicatory proceeding.

(17)ECL means the Environmental Conservation Law.

(18)Electronically stored information or ESI means any potentially relevant information that is created, stored or utilized with technology of any type. ESI includes, but is not limited to, voice mail, instant messaging and other electronic communications, text files, hard drives, graphics, databases, calendars, telephone logs, transaction logs, internet usage files, offline storage or information on removable media, information contained on laptops or other portable devices and network access information and back up materials, native files and the corresponding metadata which is ordinarily maintained, word-processing files, audio files, video files, spreadsheets, images, emails and attachments and other electronic messaging information that are stored electronically. Active data means potentially relevant ESI that is located in a computer's memory or in storage media (including servers, desktop or laptop computers, tablets, cellphones, hard drives, flash drives, compact discs, digital video discs, and portable media players) that is immediately available in the normal course of business.

(19)ENB (Environmental Notice Bulletin) means the publication of the department published pursuant to section 3-0306 of the ECL, and accessible on the department's internet web site at http://www.dec.ny.gov.

(20)Evidence means sworn or affirmed testimony of witnesses, and physical objects, documents, records or photographs that tend to prove or disprove the existence of an alleged fact.

(21)Evidentiary hearing means that part of an adjudicatory proceeding that involves the taking of evidence, examination of witnesses, and presentation of argument on issues of law and fact prior to the commissioner's rendering of a decision on the merits, but does not include public comment hearings or the issues conference.

(22)FEIS means the final environmental impact statement prepared pursuant to the requirements of article 8 of the ECL.

(23)Hearsay means a statement, other than one made by a witness testifying at the hearing, offered into evidence to prove the truth of the matter asserted.

(24)Interrogatories means written questions regarding the proceeding that are served by a party on an adversarial party. Answers to interrogatories must be in writing and made under oath.

(25)Issues Conference means that portion of an adjudicatory proceeding conducted, in part, to:

i) identify, narrow and potentially resolve the issues raised by the issues conference participants without resort to taking testimony;

ii) hear argument on whether unresolved issues of fact meet the standard for adjudication;

iii) determine whether legal issues exist whose resolution is not dependent upon disputed facts and hear argument on those legal issues;

iv) determine party status; and

v) decide pending motions.

(26)Mediation means a voluntary discussion between department staff, the applicant and parties or potential parties concerning the issues proposed in a permit proceeding, facilitated by an ALJ assigned as mediator. The mediation may address all or only some of the issues raised in the permit proceeding, or involve all or only some of the parties or potential parties.

(27)Motion means a request for a ruling or an order.

(28)Notice of intent or decision notification means a document prepared by department staff pursuant to sections 621.7, 621.10, 621.11 or 621.13 of this Title that identifies the reasons why: the permit(s) for the project may not be issued as proposed or with conditions; the permit(s) for the project are proposed to be modified, suspended or revoked; or the permit(s) for the project are denied.

(29)Office of Hearings and Mediation Services means the office within the department principally responsible for conducting adjudicatory proceedings and providing mediation services.

(30)Party means any person granted full party status or 'amicus' status in the proceeding according to the procedures and standards set forth in section 624.5 of this Part but does not include the commissioner, any personnel of the Office of Hearings and Mediation Services, the ALJ or any person advising or consulting with the commissioner or ALJ.

(31)Permit means any permit, variance, certificate, license, registration or other form of department approval, other than an enforcement order, issued in connection with any regulatory program administered by the department.

(32)Permittee means a person authorized to undertake an activity regulated under a department permit.

(33)Person means any individual, public or private corporation, limited liability company, bi-state authority, political subdivision, government agency, department or bureau of the State, municipality, industry, partnership, association, firm, trust, estate or any legal entity whatsoever.

(34)Potential party means any person who has filed a petition pursuant to section 624.5 of this Part whose petition has not received either final denial or acceptance.

(35)Project means the action, activity, or undertaking for which one or more permits are required from the department.

(36)Proof of service means an affirmation or affidavit specifying the papers served, the person served, and the date and manner of service, and setting forth facts showing that service was made by an authorized person and in an authorized manner.

(37)Protective order means an order denying, limiting, conditioning or regulating the use of material requested through disclosure.

(38)Public comment hearing means the portion of the adjudicatory proceeding during which unsworn statements are received from the public and the parties.

(39)Relevant means tending to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable.

(40)Report means the ALJ's summary of the proceeding, including the ALJ's findings of fact, conclusions of law and recommendations for the commissioner's consideration.

(41)SAPA means the State Administrative Procedure Act.

(42)SEQRA means the State Environmental Quality Review Act, article 8 of the ECL.

(43)Service means the delivery of a document to a person by authorized means and, where applicable, the filing of a document with the ALJ, the Office of Hearings and Mediation Services or the commissioner.

(44)Stipulation means an agreement between two or more parties to a proceeding, and entered into the hearing record, concerning one or more issues of fact or law that are the subject of the proceeding.

(45)Subpoena means a legal document that requires a person to appear at an evidentiary hearing and testify, to produce documents or physical objects, or both.

(46)UPA means the Uniform Procedures Act, article 70 of the ECL.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 624.1

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

Adopted New York State Register August 21, 2024/Volume XLVI, Issue 34, eff. 8/21/2024