N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-2.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 128-2.3 - Application procedures and requirements

(a) These procedures shall apply to the following:

(1) applications for review and approval of regulated activities, including renewals of approvals of regulated activities. An application for renewal of an approval of a regulated activity shall be submitted to the department no less than 180 days prior to the expiration of the approval. This deadline shall apply unless stated otherwise in a special condition of the approval;

(2) applications for review and approval of a substantial alteration or modification of any regulated activity;

(3) applications for review and approval of any substantial alteration or modification of a noncomplying regulated activity; and

(4) applications for variances pursuant to Subpart 128-6 of this Part.

(b) The applicant shall meet the following requirements:

(1) No person shall undertake any activity listed in section 128-1.4 of this Part which requires the review and approval of the department without first obtaining written approval from the department, except where a temporary emergency approval has been obtained from the department pursuant to section 128-2.4 of this Subpart.

(2) Any person proposing to undertake any activity listed in section 128-1.4 of this Part which requires the review and approval of the department, shall submit to the department, at the address of the department representative for the area where the regulated activity is to be undertaken set forth in section 128-1.5 of this Part, an application for review and approval which includes a plan of the activity which meets the requirements of this subpart and any additional requirements for the specific activity set forth in these rules and regulations. Failure by the applicant to submit information to the department or to follow the department procedures set forth in these rules and regulations is sufficient grounds to deny the approval.

(3) Any person seeking approval of an activity may be subject to such terms and conditions as the department may require, including time limitations and limitations on transfer of the approval given by the department.

(4)

(i) An applicant shall affirmatively state in the application whether any enforcement action has been commenced during the five years preceding the application against the applicant, or any principal or affiliate of the applicant, for alleged violations of law related to the specific regulated activity for which the approval is sought, or related to the facility or site at which the activity is located. The applicant shall supply the following information with respect to each enforcement action: the agency or entity commencing the action, the date of commencement, the facility location and address where the alleged violation occurred, and disposition of the action.

(ii) Failure to fully and accurately disclose any material information required to be disclosed pursuant to subparagraph (i) of this paragraph shall be a basis for the department to deny a permit application.

(iii) Failure to cure any adjudicated violation of this Part or any law, rule or regulation enforced by the department shall be a basis to deny a permit application.

(iv) If the department or the city has commenced an enforcement action against the applicant for violations of law related to the facility or site at which the activity for which the approval is sought is located, the department may suspend processing of the application until such alleged violations are cured.

(5) Any property owner may request that the department perform a site visit and evaluation to determine and flag the presence of a watercourse, reservoir, reservoir stem or controlled lake on the owner's property. If the property owner supplies the department with a surveyor's map of the property which includes a representation of the flagged watercourses, reservoirs, reservoir stems or controlled lakes identified by the department, the department shall confirm or amend the findings upon the surveyor's map as soon as is practicable. A confirmed survey map shall be binding upon the department for five years following the date of the confirmation.

(6) If an applicant for department review and approval of a regulated activity requests that the department conduct a site visit and evaluation to determine and flag the presence of a watercourse, reservoir, reservoir stem or controlled lake on the applicant's property the department shall do so as soon as is practicable. If the applicant supplies the department with a surveyor's map of the property which includes a representation of the flagged watercourses, reservoirs, reservoir stems or controlled lakes identified by the department, the department shall confirm or amend the findings upon the surveyor's map within 20 business days of receipt thereof. A confirmed survey map shall be binding upon the department for five years following the date of the confirmation. The absence of a department confirmed surveyor's map will not cause an application to be considered incomplete.

(c) An application shall contain the following information:

(1) An application for the review and approval of any activity listed in section 128-1.4 of this Part shall provide a description of the activity, the location and topography of the area of the activity, identification of any existing structures at the location, and any engineering, construction or other plans which detail the methods to be used in undertaking the activity such that it shall meet the requirements of this Subpart and any additional requirements for the specific activity set forth in these rules and regulations.

(2) An application for review and approval of any activity listed in section 128-1.4 of this Part shall include a copy of any Environmental Assessment Form (EAF), and either a Draft Environmental Impact Statement (DEIS) or a determination of non-significance by the lead agency, where such documents are prepared pursuant to article 8 of the Environmental Conservation Law and the rules and regulations promulgated thereunder.

(3) When a regulated activity requires a related approval from any other agency or more than one approval from the department, the application for review and approval shall include a list of such approvals which the applicant knows to be required, and a statement of the status of any required approval at the time of filing of the application with the department.

(d) Review and approval procedures.

(1) The applicant proposing to engage in any activity listed in section 128-1.4 of this Part which requires the review and approval of the department shall certify in writing that she or he believes that the application is complete and in compliance with the requirements of this Subpart and any additional requirements for the specific activity set forth in these rules and regulations.

(2) An application is complete when it is determined by the department to contain sufficient information for the purpose of commencing review of the application. The department retains the right to seek additional information in order to enable the department to make a determination pursuant to these rules and regulations. Within 10 days of receiving an application for review and approval of a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision, or within 20 days of receiving any other type of application for review or approval, the department shall either:

(i) notify the applicant in writing that the application is complete and that the department shall commence its review; or

(ii) notify the applicant in writing that the application is incomplete and specifically request all additional information from the applicant as the department deems necessary. if additional information is requested or comments are issued by the department that need to be addressed by the applicant, the 20-day period described in paragraph (4) of this subdivision or the 45-day period described in paragraph (5) of this subdivision shall not commence to run. The department shall notify the applicant in writing within 10 days of receiving the additional information that has been requested either that the application is complete and that the department has commenced its review or that further information is required.

(iii) Except in cases where the applicant has submitted false or misleading information or where a change in relevant law has occurred or changes have been proposed for the project, the department may require further information based only upon the additional information submitted by the applicant or new issues raised by such information. In addition, the department may also require further information based on a change in ownership of the property, the identity of the applicant, or the identity of the applicant's owners, principals, shareholder, directors, or officers.

(3) If the department fails to notify an applicant in writing of its determination as to the completeness or incompleteness of the application within the time periods set forth in paragraph (2) of this subdivision, the applicant may notify the department of its failure by means of certified mail, return receipt requested, to the local department representative identified in section 128-1.5 of this Part, who is responsible for processing the application and a copy to the engineering section. If the department fails to notify the applicant of its determination as to the completeness or incompleteness of the application within 10 business days of receiving the notice, the application shall be deemed complete as of the 11th day.

(4) The department shall notify the applicant in writing of its determination within 20 days of determining that an application for review and approval of a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision is complete pursuant to the procedures set forth in paragraph (2) of this subdivision unless the department and the applicant mutually agree in writing upon an extension of the 20-day review period.

(5) For all applications for review and approval, other than for a conventional individual sewage treatment system to be installed on an individual lot which is not within a subdivision, the department shall notify an applicant in writing of its determination within 45 days of notifying the applicant that the application is complete pursuant to the procedures set forth in paragraph (2) of this subdivision unless the department and the applicant mutually agree in writing upon an extension of the 45-day review period.

(6) If the department fails to notify an applicant in writing of its determination within the 20-day time period set forth in paragraph (4) of this subdivision or the 45-day time period set forth in paragraph (5) of this subdivision, the applicant may notify the department of its failure by means of certified mail, return receipt requested to the local department representative identified in section 128-1.5 of this Part who is responsible for processing the application and a copy to the engineering section. The notice shall contain the applicant's name, location of the proposed project, the office in which the application was filed, and a statement that a decision is sought in accordance with this subdivision. Any notice failing to provide this information will not invoke this provision.

(i) If the department fails to notify the applicant of its decision within 10 business days of the receipt of such notice, the application shall be deemed approved subject to the standard terms and conditions applicable to such an approval.

(7) Notwithstanding the time period for notifying an applicant of the department's determination specified in paragraphs (4)-(6) of this subdivision, if a lead agency has determined that a project may have a significant effect on the environment for purposes of the State Environmental Quality Review Act (SEQRA), such time periods shall be suspended pending receipt from the lead agency of either a Final Environmental Impact Statement (FEIS) or a determination of nonsignificance. Upon receipt of either document, the time periods shall resume, provided, however, that the department shall have at least 20 days to notify an applicant of its determination.

(8) Notwithstanding the time periods for decisions specified in this subdivision, the department may condition an approval on the applicant providing satisfactory proof of any bonds required by the department within 30 days of the applicant receiving the conditional approval from the department.

(9) Any notice required or permitted to be given by the department under this Subpart shall be given in such manner designed to reach the applicant, as the department deems appropriate, and may include, but is not limited to, regular mail, certified mail return receipt requested, or telecopier.

N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-2.3