The Department of Environmental Conservation (Department) repeals 6 NYCRR Part 622 “Uniform Enforcement Hearing Procedures” and adopts a new 6 NYCRR Part 622 “Uniform Enforcement Hearing Procedures”.

Applicability

Part 622 will apply to all administrative enforcement proceedings brought pursuant to the Environmental Conservation Law (ECL) or other laws administered by the commissioner, and various other matters enumerated in Part 622.

Definitions and General Provisions

Definitions specific to Part 622 are presented in 622.2. Several definitions have been revised to clarify or update the definition. Discovery is now defined as disclosure to be consistent with the CPLR. The definition of relevant has been changed to be consistent with the Uniform Court Rules. The definition of report has also been revised to more accurately reflect what is contained within a report. New definitions for “electronically stored information,” “hearing,” “mediation,” “proceeding,” and “proof of service,” have been adopted. The Office of Hearings was renamed Office of Hearings and Mediation Services in 1996. The change reflecting that name change has been made throughout the part.

The requirements for commencing a proceeding have been revised to clarify the requirements. Provisions have also been added for commencing a proceeding for those matters arising out of petroleum delivery prohibitions authorized by 6 NYCRR 613-5.4(a)(3).

Pre-hearing conference rules have been amended to codify the practice of granting a default if respondent fails to appear at the pre-hearing conference and the time to answer the complaint has expired.

Section 622.12 is amended to clarify the service requirements for a motion for order without hearing in lieu of complaint and for a motion for order without hearing served in addition to and after service of a notice of hearing and complaint. The section also describes when a motion for order without hearing may amend the pleadings.

The default procedures contained in section 622.15 have been revised to reflect current practice and administrative precedent. The section also requires the service of default motions on all respondents and compliance with CPLR 3215(g)(4).

A new section 622.19 is adopted to describe the mediation process after an enforcement proceeding has been commenced.

Nonsubstantive change to 6 NYCRR 622.10(d)(1)

Subdivision 622.10(d) provides procedures to appeal from a ruling of an administrative law judge during the pendency of a proceeding and following an adjudicatory hearing. Nonsubstantive changes were made to 6 NYCRR 622.10(d)(1) to clarify when an appeal must be served and filed following an adjudicatory hearing and when responses to an appeal must be served and filed.

Parts 620 and 624 Summary

The definitions in Parts 620 and 624 have been amended to be consistent with the definitions in Part 622. In addition, the Office of Hearings was amended to Office of Hearings and Mediation Services throughout Part 624.

Nonsubstantive changes to 6 NYCRR 624.1(a)(6)

Paragraph 624.1(a)(6) describes the applicability of Part 624 to permits not covered by Environmental Conservation Law Article 70, Uniform Procedures Act. In response to a comment regarding the proposed amendment of the paragraph, nonsubstantive changes were made to 6 NYCRR 624.1(a)(6) to return the coverage of the paragraph to its original content and maintain the regulatory standard.

Part 621 Summary

Subdivisions 6 NYCRR 621.10(a), 621.11(g) and 621.13(d) have been amended to require that a copy of a written request for a hearing made pursuant to those subdivisions be provided to the Chief Administrative Law Judge.

Changes made to the last published rule do not necessitate revision to the previous published RIS because the changes are nonsubstantive and do not affect the Department’s statutory authority, legislative objective and the needs and benefits of the rulemaking. The changes maintain regulatory standards and do not affect the Department’s published analysis related to costs, local government mandates, paperwork, duplication, alternatives, federal standards and compliance schedule provided in the previous published RIS.

Changes made to the last published rule do not necessitate revision to the previous published statement explaining why a RFA is not required because the changes are nonsubstantive and do not affect the previous published statement that the adoption of the new Part 622 and amendments to Parts 624, 621 and 620 will not impose any reporting, record-keeping or other compliance requirements on small businesses or local governments.

Changes made to the last published rule do not necessitate revision to the previous published statement explaining why a RAFA is not required because the changes are nonsubstantive and do not affect the previous published statement that the adoption of the new Part 622 and amendments to Parts 624, 621 and 620 will not impose an adverse impact on rural areas.

Changes made to the last published rule do not necessitate revision to the previous published statement explaining why a JIS is not required because the changes are nonsubstantive and do not affect the previous published statement that the adoption of the new Part 622 and amendments to Parts 624, 621 and 620 is not expected to create an adverse impact on jobs and employment opportunities in New York State.

As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2025, which is no later than the 5th year after the year in which this rule is being adopted.

Comment 1: The Honorable Steve Englebright, Chair of the New York State Assembly Committee on Environmental Conservation, and the Honorable Dan Quart, Assembly Chair of the Administrative Regulations Review Commission (Commenters), jointly submitted comments related to the amendment of 6 NYCRR 624.1(a)(6), specifically the sentence, “Unless otherwise required by law, when a request for a hearing is made by an applicant based upon department staff’s denial of a permit or permit renewal application, participation at any hearing is limited to department staff and the applicant and the provisions of sections 624.3, 624.4, 624.5 and 624.11 of this Part shall not apply.” The Commenters expressed concern that it is unclear whether this language only applied to permits that are not subject to Environmental Conservation Law Article 70 Uniform Procedures Act (UPA) or whether other permit programs are among the “include, but not limited to” language in the preceding sentence. The Commenters also expressed concern that the Department proposal inappropriately excludes public participation in permit related hearings.

Response to Comment 1: Thank you for your comment and concern regarding the proposed amendment. The purpose of the amendment to this paragraph was to provide a process when the denial of a non-UPA permit application or renewal application is based on violations of the law, regulations or permit conditions, which are similar to enforcement proceedings. The removal of the matter from public participation was unintended. We agree with the comment and accordingly have removed the sentence from the proposal to maintain the regulatory standard. The Department believes the language in 624.1(a)(6), in effect since 2006, expressly states the paragraph applies to non-UPA permits, and has been applied only to non-UPA permits as exemplified by the list in the paragraph. We have reduced the list to its original content.