§ 18-26 Modification, Suspension or Revocation of Approvals and Variances.
RCNY § 18-26
(a)An approval or variance issued by the Department pursuant to these rules and regulations may be modified, suspended or revoked at any time upon the Department's initiative, on any of the grounds set forth in paragraphs (1) through (5) of this subdivision.
(1)Materially false or inaccurate statements in the approval or variance application or supporting documents; (2) Failure by the person named in the approval or variance to comply with any terms or conditions of the approval or variance; (3) The scope of the project, as described in the application, is exceeded; (4) Newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or rules and regulations since the issuance of the existing approval or variance; or (5) Noncompliance with previously issued approval or variance conditions, orders of the Commissioner, or with any provisions of the rules and regulations of the Department related to the activity.
(b)The Department shall send a notice of intent to modify, suspend or revoke an approval or variance to the person named in the approval or variance by certified mail, return receipt requested or by personal service. The notice shall specify the ground or grounds on which the modification, suspension, or revocation is sought, as well as the alleged facts on which the modification, suspension, or revocation is based.
(c)Within fifteen calendar days of receipt of a notice of intent, the person named in the approval or variance may submit a written statement to the Department, giving reasons why the approval or variance should not be modified, suspended or revoked. Failure by such person to timely submit a statement shall result in the Department's action becoming effective on the date specified in the notice of intent.
(d)Within fifteen calendar days of receipt of such person's statement, the Department shall either: (1) Rescind the notice of intent based on a review of the information provided by such person; (2) Confirm the Department's intent to modify, suspend, or revoke the approval or variance as stated in the notice of intent; or (3) Amend the Department's notice of intent, specifying the Department's revised intent to modify, suspend, or revoke the approval or variance.
(e)If the Department confirms or amends its intent to modify, suspend, or revoke the approval or variance, the person named in the approval or variance may request a hearing on the Department's determination by submitting a petition in writing to the Office of Administrative Trials and Hearings ("OATH"), and sending a copy of the petition to the Commissioner, within thirty (30) days of receipt of confirmation of the Department's intent, in accordance with the following: (1) Form and content of petition. The petition must state the name, address, and email address of the petitioner and must include a short and plain statement of the matters to be heard by OATH. The following documents must be included with the petition: the Department's notice of intent to modify, suspend, or revoke the approval or variance; the petitioner's statement giving reasons why the approval or variance should not be modified, suspended or revoked; the Department's confirmation or amendment of its intent; and a completed OATH intake sheet. Blank intake sheets are available from the Department.
(2)Department response. Within twenty (20) days of receipt of the petition, the Commissioner may respond to the petition. If the Commissioner responds, the Commissioner must include the record on which the determination was based. A copy of any response shall be sent to the petitioner.
(3)Proceedings before the OATH Trials Division. Upon receipt of the petition for a hearing, OATH shall promptly schedule a hearing at a time and date which shall not be less than thirty (30) days, nor exceed one hundred twenty (120) days, from the date of receipt by OATH of the petition for a hearing unless the parties and the ALJ agree to another date. The hearing may be held in the district of the Department where the activity that is the subject of the order is located, except that hearings may be held at the Department's offices in Kingston, New York for petitions relating to regulated activities in the East of Hudson watershed and at the Department's offices in Kingston, New York for petitions relating to regulated activities in the West of Hudson watershed. The hearing may also be held by video conferencing or other electronic means, or as otherwise agreed to by the parties and the ALJ. Notice of such hearing shall be provided in writing to the petitioner and to the Department.
(4)Burden of proof. The Department shall have the burden of proving, by a preponderance of the evidence, facts supporting the modification, suspension or revocation.
(5)The hearing shall be held before an OATH ALJ. The ALJ shall cause a record of the hearing to be made, and shall make a recommendation to the Commissioner within thirty (30) days of the close of the hearing record, setting forth the appearances, the relevant facts and arguments presented at the hearing, findings of fact and conclusions of law, and a recommendation as to whether approval or variance should be modified, suspended, or revoked and the reasons therefor. A transcript of the record of the hearing shall be made available at the petitioner's request and expense.
(f)Within thirty (30) days of receipt of the recommendation of the ALJ, the Commissioner shall issue a final decision approving, rejecting, or modifying the ALJ's recommendation and shall serve that decision on the parties to the proceeding. If the Commissioner does not act within that time, the ALJ's recommendation shall be deemed adopted by the Commissioner.
(g)Where the Department proposes to modify, suspend, or revoke an approval or variance, and the person named in the approval or variance requests a hearing on the proposed modification, suspension, or revocation, the original conditions of the approval or variance shall remain in effect until a decision has been issued by the Commissioner pursuant to subdivision (f) of this section. At such time the modified conditions shall take effect.
(h)Nothing in this section shall preclude or affect the Department's authority to use the remedy of summary abatement or to issue a cease and desist order under these rules and regulations, or any other law or regulation or to seek injunctive relief to enforce these rules and regulations, or any other law or regulation, in a court of competent jurisdiction. (Amended City Record 10/30/2019, eff. 11/29/2019)
