N.Y. Comp. Codes R. & Regs. tit. 6 § 624.4

Current through Register Vol. 46, No. 43, October 23, 2024

Section 624.4 - Public comment hearing and issues conference

(a) 'Public comment 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 the statements will be made but will not be part of the record of the evidentiary hearing, as defined by section 624.12 of this Part (except as described in paragraph (3) of this subdivision or as otherwise admitted into evidence). At the ALJ's discretion, the public comment hearing may be conducted by video conference, telephone conference, or other similar service allowing for attendance from remote locations, upon request from department staff, the applicant or the public and good cause shown, or upon the ALJ's own initiative, provided that the public has the ability to participate in the public comment hearing.

(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 public comment hearing will constitute comments on the DEIS and all substantive comments must be addressed pursuant to the procedures set forth in section 617.9 of this Title, unless otherwise addressed pursuant to subdivision 624.13(c) of the Part.

(4) The statements made at the public comment 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.

(5) When a public comment hearing presided over by an ALJ has been held pursuant to Part 621 of this Title before the permit application was referred to the Office of Hearings and Mediation Services for proceedings pursuant to this Part, at the discretion of the ALJ, the record of the Part 621 public comment hearing and any written comments received may be accepted by the ALJ and no further public comment hearing or written comment period will be required.

(b) 'Issues conference.'

(1) Following the public comment hearing, the ALJ will schedule an issues conference (if one was not scheduled in the hearing notice) that will be held in advance of the evidentiary hearing. At the discretion of the ALJ, the issues conference may be conducted solely on papers, orally or both. 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 the new 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 potential parties to adequately prepare for the issues conference, the ALJ will adjourn the issues conference, extend the time for written submittals or make some other fair and equitable provision to protect the rights of the potential parties.

(2) The purpose of the issues conference is:

(i) to hear argument on:

('a') whether party status should be granted to any petitioner; or

('b') whether applicant has raised issues for adjudication;

(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 thirty (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 the 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), (8) and (9) 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 permit or draft permit and the applicant has provided a statement of issues that complies with subdivision 624.2(c) or paragraph 624.5(a)(1) of this Part; however, with respect to SPDES permits subject to section 750-1.26 of this Title, only SPDES permit conditions that are stayed in accordance with paragraph 750-1.26(e)(2) of this Title may be considered for adjudication;

(ii) it relates to a matter cited by the department staff as a basis to deny the permit application 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 that demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the permit or draft permit, the statement of issues filed by the applicant, 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 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 fact issues to adjudicate and finally determines all legal issues raised by the parties, the ALJ will direct in writing that the evidentiary hearing be canceled and the matter remanded to department staff for further appropriate permit processing, including completing the SEQRA review, subject to any appeal pursuant to section 624.8 of this Part. For proceedings involving a DEIS, issues raised in petitions not addressed by the ALJ constitute comments on the DEIS.

(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 department 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 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 617.11 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 consider any issues related to SEQRA. SEQRA related issues may be considered, however, if lead agency status is re-established with the department pursuant to the provisions in section 617.6 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.

('c') 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 Part 621 of this Title, will not be an issue for adjudication. The ALJ may require the submission of additional information pursuant to subdivision 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 those 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.

(9) SPDES permits subject to section 750-1.26 of this Title. The only issues that may be adjudicated are those related to the SPDES permit conditions that are stayed in accordance with paragraph 750-1.26(e)(2) of this Title. Whenever those 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.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 624.4

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