New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter V - RESOURCE MANAGEMENT SERVICES › Subchapter E - WATER REGULATION › Part 598 - Handling and Storage of Hazardous Substances › Subpart 598-5 - Delivery prohibition › Section 598-5.4 - Termination of delivery prohibition

Current through Register Vol. 46, No. 28, July 10, 2024
(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.