N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 750-1.26

Current through Register Vol. 46, No. 45, November 2, 2024

Section 750-1.26 - Additional procedural requirements for adjudicatory proceedings applicable to SPDES permits

(a) Scope.

(1) This section applies only if there are no permits, other than a SPDES permit, subject to an adjudicatory proceeding under subdivision 624.2(a) of this Title.

(2) Subdivisions (a) through (o) of this section apply only to SPDES permits where a request for an adjudicatory proceeding has been made pursuant to sections 621.10, 621.11 or 621.13 and subdivision 624.2(a) of this Title.

(3) Persons affected by a SPDES general permit may not file a request for an adjudicatory proceeding under subdivision 624.2(a) of this Title or otherwise challenge the conditions of a SPDES general permit in further department proceedings. Instead, they may challenge the SPDES general permit by filing an action in court.

(4) This section does not apply for the SPDES permit issued to a new facility, new source, new discharger, or a recommencing discharger. Where such SPDES permit is subject to an adjudicatory proceeding under subdivision 624.2(a) of this Title, the applicant shall be without a permit and is not authorized to discharge, pending final agency action on such SPDES permit.

(b) Whenever used in this section, the following terms will have the meanings set forth below:

(1) 'Original SPDES permit' means the SPDES permit that was in effect before the new SPDES permit.

(2) 'New SPDES permit' means a SPDES permit that is issued pursuant to sections 621.10, 621.11 or 621.13 of this Title.

(c) Requests for an adjudicatory proceeding that involve new SPDES permits must:

(1) clearly identify the contested conditions in the new SPDES permit;

(2) clearly identify the conditions in the new SPDES permit that are inseverable from the contested conditions in the new SPDES permit and an explanation of why those conditions are inseverable from the contested conditions in the new SPDES permit;

(3) demonstrate, by providing specific citation to the administrative record, including the document name and page number, that issues associated with the contested conditions in the new SPDES permit were raised during the public comment period (including any public hearing) to the extent required by subparagraph 621.7(b)(6)(iv) of this Title;

(4) for any issue that was not raised during the public comment period, explain why the issues associated with the contested conditions(s) in the new SPDES permit were not required to be raised during the public comment period (including any public hearing) to the extent required by subparagraph 621.7(b)(6)(iv) of this Title;

(5) if the request for an adjudicatory proceeding raises an issue that the department addressed in the response to comments issued pursuant to subdivision 621.10(e) of this Title, provide a citation to the relevant comment and response and explain why the department's response to the comment was clearly erroneous or otherwise warrants review;

(6) clearly set forth, with legal and factual support, the permittee's contentions for why the conditions of the new SPDES permit should be stayed. The request for a stay must demonstrate that each contested condition of the new SPDES permit is based on:

(i) a finding of fact or conclusion of law that is clearly erroneous; or

(ii) an exercise of discretion or an important policy consideration that the commissioner should, in the commissioner's discretion, review;

(7)

(i) if the disputed water quality based effluent limitation is currently authorized to be discharged under the original SPDES permit, propose temporary structural or non-structural measures which would partially meet the contested or inseverable water quality based effluent limitations of the new SPDES permit;

(ii) if the disputed water quality based effluent limitation is not currently authorized to be discharged under the original SPDES permit:

('a') identify the discharge concentrations authorized by subparagraphs 750-1.2(a)(29)(iv-v) of this Title;

('b') propose temporary structural or non-structural measures which would partially meet the contested or inseverable water quality based effluent limitations of the new SPDES permit; and

('c') propose a representative monitoring frequency that considers effluent variability pursuant to paragraph 750-1.13(c) of this Title; and

(8) confirm that there are no other permits subject to an adjudicatory proceeding under subdivision 624.2(a) of this Title.

(d) Information required by subdivision (c) of this section must be sent to the Director for the Division of Water at the same time, and in the same manner, as the request for an adjudicatory proceeding required by sections 621.10, 621.11 or 621.13 and subdivision 624.2(b) of this Title. The Director for the Division of Water may deny a request to stay contested or inseverable conditions of the new SPDES permit if there are deficiencies in the information required by subdivision (c) of this section.

(e) Within 15 business days after receiving the information, pursuant to subdivision (d) of this section, the Director for the Division of Water shall notify, in writing, the Chief administrative law judge of the Office of Hearings and Mediation Services, the permittee, and all others who submitted comments on the draft SPDES permit of:

(1) the uncontested or severable conditions of the new SPDES permit; and

(2) denial or approval of the stay of contested or inseverable conditions of the new SPDES permit, and the reasons for denial pursuant to subdivision (d) of this section, if applicable;

(3) for contested or inseverable conditions of the new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) of this section:

(i) the temporary structural and non-structural measures (paragraph (7) of subdivision (c) of this section); or

(ii) the pollutants that are not authorized to be discharged as there are no conditions of the original SPDES permit, that correspond to the contested or inseverable conditions of the new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) of this section.

(f) Uncontested conditions shall include preliminary design and engineering studies or other requirements necessary to achieve the conditions of the new SPDES permit which do not entail substantial expenditures.

(g)

(1) The uncontested or severable conditions of the new SPDES permit shall become fully effective enforceable conditions of the new SPDES permit 30 calendar days after the date of the notification required in subdivision (e) of this section.

(2) The contested or inseverable conditions of the new SPDES permit, denied pursuant to paragraph (2) of subdivision (e) this section, shall become fully effective enforceable conditions of the new SPDES permit 30 calendar days after the date of the notification required in subdivision (e) of this section.

(h) The effect of the contested or inseverable conditions of the new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) this section, shall be stayed pending final agency action on the contested or inseverable conditions of the new SPDES permit in accordance with Part 624 of this Title.

(i) During any proceeding under Part 624 of this Title:

(1) The conditions of the original SPDES permit, that correspond to the contested or inseverable conditions of the new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) of this section, will remain in effect.

(2) If applicable, the temporary structural and non-structural measures, specified in subparagraph (i) of paragraph (3) of subdivision (e) of this section, will become fully effective enforceable 30 calendar days after the date of the notification required in subdivision (e) of this section.

(j) A request for an adjudicatory proceeding pursuant to sections 621.10, 621.11 or 621.13 and subdivision 624.2(a) of this Title is a prerequisite to seeking judicial review of the final agency action on the contested or inseverable conditions of the new SPDES permit.

(k) For purposes of judicial review of the contested or inseverable conditions of the new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) of this section, and where a request for an adjudicatory proceeding has been made pursuant to sections 621.10, 621.11 or 621.13 and subdivision 624.2(a) of this Title, final agency action for those conditions of the new SPDES permit occurs when department review procedures under Part 624 of this Title are exhausted and:

(1) the commissioner subsequently issues a final decision on the new SPDES permit under Part 624 of this Title; and

(2) department staff effectuate all directives of the commissioner's final decision on the new SPDES permit, where applicable.

(l) For purposes of judicial review of the contested or inseverable conditions of the new SPDES permit, denied pursuant to paragraph (2) of subdivision (e) of this section, and where a request for an adjudicatory proceeding has been made pursuant to sections 621.10, 621.11 or 621.13 and subdivision 624.2(a) of this Title, final agency action for those conditions of the new SPDES permit occurs upon notification in subdivision (e) of this section.

(m) For purposes of judicial review of the uncontested or severable conditions of the new SPDES permit, where a request for an adjudicatory proceeding has been made pursuant to sections 621.10, 621.11 or 621.13 and subdivision 624.2(a) of this Title, final agency action for those conditions of the new SPDES permit occurs upon notification in subdivision (e) of this section.

(n) The issues conference, in paragraph 624.4(b)(1) of this Title, will only include the contested or inseverable conditions of the new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) of this section.

(o) Disclosure, related to this section, is limited to what is afforded under Part 616 of this Title (Access to Records).

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 750-1.26

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