N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-2.6

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

Section 128-2.6 - Modification, suspension or revocation of approvals and variances

(a) An approval or variance issued by the department pursuant to these rules and regulations may be modified, suspended or revoked at any time upon the department's initiative, on any of the grounds set forth in paragraphs (1)-(5) of this subdivision. The grounds for modification, suspension or revocation include:

(1) materially false or inaccurate statements in the approval or variance application or supporting documents;

(2) failure by the person named in the approval or variance to comply with any terms or conditions of the approval or variance;

(3) the scope of the project, as described in the application, is exceeded;

(4) newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or rules and regulations since the issuance of the existing approval or variance; or

(5) noncompliance with previously issued approval or variance conditions, orders of the commissioner, or with any provisions of the rules and regulations of the department related to the activity.

(b) The department shall send a notice of intent to modify, suspend or revoke an approval or variance to the person named in the approval or variance by certified mail, return receipt requested or by personal service. The notice shall state the alleged facts or conduct which appear to warrant the intended action.

(c) Within 15 calendar days of receipt of a notice of intent, the person named in the approval or variance may submit a written statement to the department, giving reasons why the approval or variance should not be modified, suspended or revoked, or requesting a hearing, or both. Failure by such person to timely submit a statement shall result in the department's action becoming effective on the date specified in the notice of intent.

(d) Within 15 calendar days of receipt of such person's statement, the department shall either:

(1) if a statement without a request for a hearing is submitted, rescind or confirm the notice of intent based on a review of the information provided by such person; or

(2) if a statement with a request for a hearing is submitted, notify such person of a date and place for a hearing, to be commenced not later than 60 calendar days from this notification;

(e) In the event such a hearing is held, the commissioner shall, within 30 calendar days of receipt of the complete record, issue a written decision, stating the findings and reasons therefor, to the person named in the approval or variance. The decision shall:

(1) continue the approval or variance in effect as originally issued;

(2) modify the approval or variance or suspend it for a stated period of time or upon stated conditions; or

(3) revoke the approval or variance, including, where ordered by the commissioner, removal or modification of all or any portion of a project, whether completed or not.

(f) Where the department proposes to modify an approval or variance, and the person named in the approval or variance requests a hearing on the proposed modification, the original conditions of the approval or variance shall remain in effect until a decision has been issued by the commissioner pursuant to subdivision (e) of this section. At such time the modified conditions shall take effect.

(g) Nothing in this section shall preclude or affect the commissioner's authority to use the remedy of summary abatement or to issue a cease and desist order under these rules and regulations, or any other law or regulation.

N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-2.6