Title: Section 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
(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
(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
(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
(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.
VOLUME B (Title 10)