Title: Section 128-2.8 - Appeals

128-2.8 Appeals.

(a) An applicant may appeal a final determination issued by

the Department under these rules and regulations by filing a petition in

writing with the Department and with the New York City Office of

Administrative Trials and Hearings ( OATH ) within thirty (30) days of the

date the determination was mailed. The petition shall state the name and

address of the petitioner and shall include a short and plain statement of

the matters to be adjudicated, identifying the approval or variance sought

by the petitioner with citation to the applicable provisions of these rules

and regulations, the regulated activity for which the Department issued the

determination, the proposed location of the activity, and the date of the

Department's determination. The petition should also indicate whether the

petitioner is requesting a hearing. A copy of the determination being

appealed shall be attached to the petition. In addition, a completed OATH

intake sheet shall be included with the petition. Blank intake sheets are

available from the Department.

(b) The following determinations are appealable:

(1) A denial of an application for approval of a regulated

activity.

(2) A denial of an application for a variance.

(3) The imposition of a substantial condition in an

approval of a regulated activity.

(4) The imposition of a substantial condition in a grant of

a variance.

(c) Petitions for appeal shall be referred to a City

administrative law judge (ALJ) for hearing, where allowed by this section,

and determination as defined in subdivision (g).

(d) The following issues are adjudicable on appeal:

(1) Whether the regulated activity proposed by the

petitioner will be in compliance with the requirements of these rules and

regulations.

(2) Whether the imposition of a substantial condition in an

approval of a regulated activity is appropriate to ensure that the

regulated activity will comply with the requirements of these rules and

regulations.

(3) Whether the Commissioner or the First Deputy

Commissioner abused his or her discretion in denying a request for a

variance or in imposing a substantial condition in a grant of a variance.

(4) Except where the Department has acted as lead agency,

the ALJ shall not adjudicate any issues relating to compliance with the

State Environmental Quality Review Act (SEQRA).

(e) Except for appeals from determinations relating to

variances, the petitioner shall have the burden of proving by a

preponderance of the evidence that the proposed regulated activity is in

compliance with the requirements of these rules and regulations. For

appeals from determinations relating to variances, the petitioner shall

have the burden of proving that the Commissioner or First Deputy

Commissioner has abused his or her discretion.

(f)(1) Appeals from determinations relating to individual

sewage treatment systems or variances shall be decided on the record before

the Department in its review of the application and any other written

submissions allowed by the ALJ.

(2) A petitioner may request an adjudicatory hearing on

appeals from all other determinations issued by the Department. If a

petitioner does not request a hearing, the petition shall be decided on the

record before the Department in its review of the application and any other

written submissions allowed by the ALJ.

(i) Unless otherwise agreed to by the parties and the ALJ,

the hearing shall be held in the district of the Department in which the

regulated activity was proposed to be located, except that hearings may be

held at the Department's offices in Valhalla, New York for appeals relating

to regulated activities in the East of Hudson watershed and at the

Department's offices in Kingston, New York for appeals relating to

regulated activities in the West of Hudson watershed.

(g) The ALJ shall submit a report to the Commissioner

within 60 days after the record on appeal is closed with a recommendation

as to whether the determination appealed from should be approved, modified

or rejected. The Commissioner shall issue a final decision approving,

rejecting, or modifying the ALJ s recommendation within 30 days of receipt

of the ALJ's report. If the Commissioner does not act, the ALJ s

recommendation shall be deemed approved.

(h) This section shall not apply to determinations made by

local governments administering provisions of these rules and regulations

pursuant to Subpart 128-7.

(i) An applicant shall have the option whether to file an

administrative appeal under this section and nothing in this section shall

preclude an applicant from challenging a final determination issued by the

Department in a court of competent jurisdiction, including instituting a

proceeding under Article 78 of the Civil Practice Law and Rules, without

first filing a petition for appeal pursuant to this section.