PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend Part 620 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, section 71-0301
Subject:
Summary Abatement Orders.
Purpose:
To make regulation consistent with statutory language; to clarify the documentation required to obtain order; to update language.
Text of proposed rule:
Section 620.1 is amended to read as follows:
620.1 Definitions. As used in this Part, unless the context otherwise requires:
(a) Administrative law judge or ALJ means the commissioner's representative who conducts the hearing.
(b) Commissioner means the Commissioner of Environmental Conservation or [his] the commissioner's duly authorized representative.
[(b)] (c) Department means the Department of Environmental Conservation.
(d) Department staff means those department personnel participating in the hearing, but does not include the commissioner, any personnel of the Office of Hearings and Mediation Services, the ALJ or those advising them.
[c] (e) Person means any individual, firm, partnership, association, corporation, trust, and estate; any State department, agency, board, public benefit corporation, public authority or commission; or any unit of local government, including any village, town, city, county, board district, commission, governing body, and any other political subdivision of the State.
[d] (f) Respondent means any person who has received a summary abatement order under these regulations.
Subdivision 620.2(a) remains unchanged.
Subdivision 620.2(b) is amended to read as follows:
(b) Such order may be oral, telephonic, in writing, or in such other form as will, in the commissioner's judgment give reasonable notice to the person. Notice which is not given in writing will be supplemented as soon as is practicable thereafter with a written summary abatement order. A written summary abatement order shall state the grounds upon which the order is based[.] , and shall be accompanied by evidence documenting the material facts supporting the order.
Subdivision 620.2(c) remains unchanged.
Subdivision 620.3(a) is amended to read as follows:
(a) The commissioner shall schedule a hearing promptly, at a time and place which [he] the commissioner shall determine, not to exceed 15 days from the date when the summary abatement order is given. Notice of such hearing shall be served upon or otherwise provided to the respondent with the written summary abatement order.
Subdivision 620.3(b) is amended to read as follows:
(b) At the hearing, department staff bears the burden of persuasion on all charges and matters affirmatively asserted in the summary abatement order. Department staff may meet its burden by submission of the supporting materials that accompanied the summary abatement order. At the hearing, department staff may also present testimony and evidence that supplements the supporting materials that accompanied the summary abatement order. At the hearing, the respondent shall have the [burden of proving] opportunity to be heard and the burden to produce evidence that such condition or activity which is the subject of the summary abatement order does not come within the provisions of subdivision (a) of section 620.2 of this Part. The respondent bears the burden of persuasion regarding all affirmative defenses. Both the respondent and department staff shall have the right of cross-examination.
Subdivision 620.3(c) remains unchanged.
Subdivisions 620.3(d) through 620.3(h) are amended to read as follows:
(d) The hearing shall be before [a hearing officer] an administrative law judge designated by the commissioner. The [hearing officer] ALJ shall cause a record of the hearing to be made, and shall make a report to the commissioner setting forth the appearances, the relevant facts and arguments presented at the hearing, findings of fact and conclusions of law, a recommendation on whether the order should be continued, modified or vacated and the reasons for this recommendation.
(e) The [hearing officer] ALJ shall, to the extent practicable, and without prejudice to the respondent's right to have a public hearing concerning the issuance of a summary abatement order within 15 days from the date the order is given, consolidate the hearing on the issuance of the summary abatement order with any hearing to be held on account of respondent's violation of the environmental conservation law, or any order, rule or regulation issued or promulgated thereunder.
(f) The [hearing officer] ALJ shall have the powers and authority provided to the presiding officer under the State Administrative Procedure Act. [He] The ALJ may receive testimony or statements in written form, if the witness is presented to authenticate his or her statement and for cross-examination, or if the parties so stipulate.
(g) The record of the hearing may be made by a stenographer, by a tape recorder, by other electronic recording device or by other means. The [hearing officer] ALJ shall cause a typed transcript of the record to be prepared for the department's files, but shall not wait for the preparation of this transcript before making a report to the commissioner, if so requested by the respondent or the commissioner.
(h) The [hearing officer] ALJ shall make a report in writing to the commissioner within 30 days of the close of the hearing, unless the parties agree to an extension of this time.
New subdivision 620.3(i) is adopted as follows:
(i) The provisions of Part 622 of this title (Uniform Enforcement Hearing Procedures) apply to hearings on summary abatement orders except to the extent inconsistent with the provisions of this Part.
Section 620.4 remains unchanged.
Text of proposed rule and any required statements and analyses may be obtained from:
Helene Goldberger, Administrative Law Judge, NYSDEC Office of Hearings and Mediation Services, 625 Broadway, 1st Floor, Albany, NY 12233-1550, (518) 402-9003, email: hggoldbe@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
The Department of Environmental Conservation has determined that this proposed rule amendment is a “consensus rule” as defined by SAPA 102(11). These proposed changes are to make the language of the statute and the regulations governing summary abatement orders uniform (Environmental Conservation Law [ECL] § 71-0301 and § 620.3(b) of Title 6 of the New York Compilation of Codes, Rules and Regulations [6 NYCRR]); to provide detail regarding the documentation that the Department staff provides in support of a motion for summary abatement consistent with current practice; and to make some minor changes in language – changing “hearing officer” to “administrative law judge” and making certain words gender neutral.
These changes are minor and for clarification purposes only; they do not change any practices regarding summary abatement proceedings. Therefore, we do not anticipate any objections to this proposal.
Job Impact Statement
A Job Impact Statement is not submitted with this proposal because the proposed amendments to Part 620 will have no adverse impact on existing or future jobs and employment opportunities. The proposed amendments do not change any substantive requirements. They are strictly to: a) clarify a provision concerning burden of proof that is consistent with the implementing statutory requirement and current practice; b) provide additional detail about the supporting documents and procedures that are consistent with current Department summary abatement order procedures; and c) update terms. These changes are minor and are being proposed as a consensus rulemaking. This proposal does not impose any regulatory mandate on the regulated community, nor does it require any businesses to purchase or modify any equipment, purchase any special permit or license or modify the means by which it conducts business. Consequently, there could be no adverse impact on existing or future jobs and employment opportunities. This conclusion was reached based upon the Department’s determination that there will be no adverse cost impact from this action.
