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Part 481: Program Fees: In General

[page 1 of 1]

Contents:

Sec.

§481.1 Program Fees

(a) A program fee is a sum of money that a person described in section 481.2 of this Part must pay the department each year under the provisions of article 72 of the ECL. The program fee is based on certain criteria set forth in Parts 480 through 486 of this Title measured on an annual basis. Liability for program fees commences on and after April 1, 1983. For operating permit program fees, liability commences on and after January 1, 1994.

(b) There are six kinds of program fees, more fully described in paragraphs (1) through (6) of this subdivision:

(1) air quality control program fee: Subpart 482-1 of this Title;

(2) operating permit program fee: Subpart 482-2 of this Title;

(3) hazardous waste program fee: Part 483 of this Title;

(4) waste transporter program fee: Part 484 of this Title;

(5) SPDES program fee: Part 485 of this Title;

(6) water transport program fees: Part 486 of this Title. A person may have to pay any or all of these program fees, depending upon the activities engaged in.

(c) Program fees are separate from and independent of the uniform procedures application fees set forth in Part 621 of this Title, or fees charged for preparing or reviewing an environmental impact statement provided by Part 617 of this Title or assessments charged pursuant to ECL 27-0923.

§481.2 Who must Pay

Program fees must be paid by each person: (a) required to obtain a permit, certificate or approval pursuant to a State environmental regulatory program; or (b) subject to regulation under a State environmental regulatory program; each year, commencing April 1, 1983.

§481.3 When Fees must Be Paid

(a) Each person is required to pay the department an annual program fee within 30 days of the date of the first invoice, unless otherwise directed by the department.

(b) The person required to pay an annual program fee must pay it by check or money order payable to the order of the "New York State Department of Environmental Conservation". The fee must be submitted to the department at the address indicated on the invoice.

§481.4 How Much must Be Paid

(a) The amount of annual program fees each regulated person must pay is computed under Parts 482 through 486 of this Title, as applicable.

(b) The fee for a new or modified permit, certificate or approval for a prospective activity governed by a State environmental regulatory program is computed under Parts 482 through 486 of this Title, as applicable, but prorated from the date of issuance.

(c) For waste transporters only, fees are prorated based on the date that the permit becomes effective. All other program fees are prorated only from the date of issuance. Prorated fees are calculated by multiplying the annual fee by the number of days remaining in the calendar or permit year (number of days in permit year for waste transporter program fees) from the date of issuance, divided by 365.

(d) The department may change any program fee for a calendar or permit year at any time during the calendar or permit year or within the three calendar or permit years next following the close of the calendar or permit year for which the fee is being changed.

(e) Any person who has paid the applicable program fees for a given calendar year may request that the department redetermine the program fees for that year under section 483.3 or 485.3 of this Title at any time during that calendar year or within the calendar year next following the close of the calendar year for which the fee was paid based solely on the amount of hazardous waste that was treated, stored, disposed or generated, or the amount of water discharged. The request for this redetermination must be made under section 481.9 of this Part except that the time limits of this Part for making the request apply.

(f) Except for the fees described in section 483.1(a) and (b)(1) of this Title, fees are owed for the entire calendar or permit year even in the event a permit is suspended, revoked, modified to reduce the scope of the permitted activity, not utilized or voluntarily surrendered by the permittee during the calendar or permit year. In the event a sale of business during the calendar or permit year occurs, the original permittee is responsible for a full permit or calendar year payment. The original permittee may request reimbursement for the applicable portion of the calendar or permit year from the new permittee.

§481.5 Penalty Assessed for Nonpayment

(a) A person who must pay a program fee pursuant to section 481.2 of this Part is obligated to pay the entire amount of the invoiced program fee. A person failing to pay the department an annual program fee within 45 days of the last applicable date prescribed in section 481.3 of this Part, must pay a penalty.

(b) If a person has paid the portion of the fee which is not being disputed as provided in section 481.9(b) of this Part, the penalty for nonpayment of the disputed portion will not be applied until the dispute is either resolved by mutual agreement or denied after hearing. The penalty, if any, will then be imposed on the redetermined deficiency from the date such penalty was initially applicable. A challence to an invoiced outstanding fee is not a basis for a reduction in penalty under section 481.5(d) of this Part if the dispute is resolved in favor of the department.

(c) Except for the penalties described in section 72-0201(12) of the Environmental Conservation Law as that applies to operating permit program fees, the penalty assessed under this section is based upon the amount of the payment deficiency and is equal to up to five percent of that deficiency per month, not to exceed 25 percent of the deficiency.

(d) If the department determines that a penalty will be assessed, it will notify the person affected setting forth the person's right to appeal. The assessed penalty is final and irrevocable unless within 30 days of the imposition of the penalty, the person sends to the Director of Fiscal Management, by certified mail, a written request to redetermine the penalty. The Director of Fiscal Management, within 30 days, shall make a determination concerning the penalty and notify the person requesting the redetermination. If the person receiving the penalty assessment disagrees with the determination of the Director of Fiscal Management, that person may send to the commissioner, by certified mail, a written request for hearing. This request must set forth the basis for the failure to pay the fee and must be postmarked within 30 days of the person's receipt of the department's notice that a penalty will be assessed. The hearing provided for under this subdivision is subject to the provisions of section 481.10 of this Part. The commissioner's decision to rescind or reduce a penalty must be based upon a finding that the failure to pay the fee was based upon reasonable cause and not due to willful neglect. The absence of willful neglect alone is not sufficient grounds for not imposing a penalty. After the hearing, the commissioner will notify the person of the final determination.

(e) No penalty determined under the provisions of this section may be finally assessed until the period in which a hearing may be requested has expired or a final determination after a hearing has been issued, whichever is later.

§481.6 Interest Assessment for Nonpayment

(a) A person failing to pay the department an annual program fee within 30 days of the last applicable date prescribed in section 481.3 of this Part must pay interest.

(b) Except for the method of assessing interest as described in section 72-0201(12) of the Environmental Conservation Law as that applies to operating permit program fees, the interest assessed under this section is based on the sum of the amount of the payment deficiency and any penalty relating to it. It is assessed at the underpayment rate set by the State Commissioner of Taxation and Finance according to section 1096 of the State Tax Law, as established in 20 NYCRR, section 603.3, as amended.

(c) Except for the method of assessing interest as described in section 72-0201(12) of the Environmental Conservation Law as that applies to operating permit program fees, the interest assessed under this section continues to accrue until payment in full, of the payment deficiency and any penalty assessed under section 481.5 of this Part, is actually made to the department.

(d) There is no provision for challenging interest assessed.

§481.7 How Payments Are Applied

The department will apply a person's payment of an annual program fee to the earliest program fee due at the time of payment and to any interest and penalty attributable to that fee.

§481.8 Suspension, Revocation and Nonrenewal of Permits for Nonpayment

If after exhausting all administrative and judicial appeals of the determination of an annual program fee, a person required to pay that fee does not do so, the department may revoke, suspend or modify the permit, certificate or approval for the activity that is subject to that fee or revocation. This suspension continues until the department determines that the fee and any penalty and interest relating to it, are fully paid.

§481.9 Procedures to Challenge the Department's Program Fee Determination

(a) A person having any questions about the basis for the annual program fee or how it was calculated may call the department's central office in Albany at the telephone number listed on the invoice. However, any responses or statements made by the department shall not be binding on the department unless made in writing.

(b) A person may petition the department for a declaratory ruling, in accordance with the procedures contained in Part 619 of this Title, with respect to the applicability to any person of the provisions of article 72 of the ECL or these regulations.

(c) A person deciding to challenge the amount of the annual program fee, must make a written request sent by mail, for a recalculation of the fee on such forms as required and supplied by the department, within 30 business days of the date of the department's original invoice. The request must be sent to: Regulatory Fee and Oil Spill Revenue Bureau, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-5013. The request must be accompanied by an explanation of why a modification in the amount of the program fee imposed is appropriate, a statement of what the revised invoice should be and must include any appropriate documentary evidence in support of the claim. The department will not consider requests for a challenge, and the department's original invoice is considered final, if a person fails to: (1) make this request within the 30-business-day period; (2) make payment in full of the undisputed amount of the annual program fee; and (3) give a specific written reason for challenging the fee. If reasonable cause is shown, the department may consider challenges that have not met the criteria of paragraph (1), (2) or (3) of this subdivision or may continue to proceed with a challenge that has been abandoned under any other sections of section 481.9 of this Part. Requests to consider a challenge that has not met the criteria of paragraph (1), (2) or (3) of this subdivision must be made to the Director of Fiscal Management by certified mail. The Director of Fiscal Management shall respond to the person within 30 business days with the department's decision about considering challenges that do not meet criteria of paragraphs (1), (2) and (3). The original department's invoice must provide notification in at least 10 point bold type of the right to challenge and three prerequisites to a challenge noted above.

(d) Upon receipt of the request for a recalculation, the department will determine whether the original invoice should be revised.

(1) If the department agrees with the person's challenge, it shall notify the person in writing within 45 business days and prepare and send a replacement invoice. If the fee has already been paid in full, the department shall refund any overpayment.

(2) If the department does not agree with the person's challenge it shall notify the person accordingly, in writing within 45 business days with an explanation of the reasons for the disagreement.

(e) If the person receives a notice of disagreement and wants to contest the determination, in order to request a further review, the person must complete a form letter that the department has provided with the original recalculation request settlement stating why they continue to disagree within 15 business days of the date of receipt of the letter. The form letter signifying "continued disagreement" with the department's determination must be sent by certified mail and addressed to the department as indicated on the form letter. Failure to notify the department of continued disagreement within 15 business days will be considered an abandonment of the challenge making the department's determination final. The department's form must state in at least ten point bold type that failure to return the form within 15 business days will be considered an abandonment of the challenge making the department's determination final.

(f) Upon receipt of the request for further review, the Regulatory Fee Determination Unit may arrange for a conference with a department representative, to be held at the department's regional office closest to the regulated activity or at a mutually agreed upon location. The department will give the person at least 10 business-days notice of the time and place of the conference. If the person does not appear personally or by a representative the department will consider the person to have abandoned the challenge making the department's determination final. If no conference is scheduled, the department will proceed with section 481.9(h) of this Part.

(g) The purpose of the conference is to afford the person the opportunity to narrow factual disagreements and define the legal issues involved and to resolve the controversy, if possible. It will be the person's responsibility to precisely state the basis for the challenge and to offer supporting documentation necessary to substantiate the claim.

(h) If agreement cannot be reached, the conference will be concluded and the department's representative will prepare a written statement summarizing the disputed and undisputed issues and send the statement to the person within 15 business days. If a person agrees with the content of the department summary statement, the person must sign the statement and return it to the department within 15 business days of its receipt. The statement will be binding on the department and on the person as to the extent of the claim as well as represent the department's final determination of Regulatory Fee liability. A person objecting to the content of the department's summary statement of issues must prepare and file with the department's representative, an opposing signed statement within 15 business days of receipt of the department's written statement. Failure to timely respond to the summary statement will be considered an abandonment of the challenge making the department's determination final. The summary statement must state in at least 10 point bold type that a person's failure to timely respond to the summary will be considered as an abandonment of the fee challenge, resulting in the department's determination becoming final. Additionally the summary statement must provide the opportunity to sign in agreement or disagreement with the department's final determination. This signature must accompany either the signature in agreement with the summary statement or the signed opposing statement to the summary statement.

(i) If the person has signed the notice in the space for agreement with the department's final determination, the department will prepare and send a recomputed invoice in accord with the resolution, and the challenge will be considered settled. If the fee has been paid in full, the department shall refund any overpayment. If the person has signed the notice in the space for disagreement, the department will then take the necessary steps to convene a hearing on the challenge.

(j) The hearing to be held at the request of the person will be limited to those disputed issues which were specifically raised by the person previously and which were set forth either in the statement of disputed and undisputed issues prepared by the department's representative and which was signed by the person or in the person's opposing signed statement. No person can contest the fee at a hearing based on issues not previously raised in the initial recalculation request.

(k) Except for a request for hearing under subdivision (d) of section 481.5 of this Part, the department will deny any request for hearing if it concerns a matter that was not previously the subject of a conference under this section, unless the department has chosen not to schedule a conference.

(l) The provisions of 6 NYCRR, section 616.7 will govern requests for confidentiality of any document filed with the department in accordance with Parts 481 through 486 of this Title.

§481.10 Hearing Procedures

(a) Application of Part. This section applies to hearings conducted by the department on disputed fees and penalties provided for in this Part.

(b) Notice of hearing.

(1) The department will provide notice to the person requesting the hearing pursuant to section 481.9(k) of this Part sent by certified mail not less than 15 business days prior to the hearing date.

(2) The form of the notice will be as specified by the department, but must contain the date, time and location of the hearing.

(c) Hearing participation. The parties to a hearing shall be:

(1) the person requesting the hearing pursuant to section 481.9(e) of this Part; and

(2) department staff.

(d) Rights of parties. The rights of parties are:

(1) A party desiring to participate at the hearing may do so in person, or by attorney or by representative presenting written authorization to represent that party.

(2) A party has the right to present relevant written and oral argument on issues of law and fact, to present relevant evidence and to cross-examine witnesses of other parties.

(3) Any party initiating motions, requests, briefs or other written material in connection with the hearings must serve such material on the other party and the ALJ.

(4) A party must be present on a timely basis to present evidence, cross-examine witnesses or receive notice of scheduling of subsequent sessions. Failure to be present at a hearing session without notifying the ALJ in advance, will be deemed a waiver of the right to be heard.

(e) The ALJ shall have power to:

(1) rule upon all motions and requests;

(2) set the time and place of the hearing and recesses and adjournments;

(3) administer oaths and affirmations;

(4) issue subpoenas;

(5) summon and examine witnesses;

(6) establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion consistent with the general principles of article 31 of the Civil Practice Law and Rules (CPLR) as applied to administrative fact-finding proceedings, if, in the discretion of the ALJ, such disclosure will aid in narrowing the issues and not unduly delay the proceedings;

(7) admit or exclude evidence including the exclusion or protection of evidence on grounds of privilege or confidentiality;

(8) preclude irrelevant or unduly repetitious, tangential, speculative testimony or argument; and

(9) take any measures necessary for maintaining order and the efficient conduct of the hearing.

(f) Prehearing conference.

(1) A prehearing conference will precede the hearing. The functions of the conference are to narrow or resolve issues concerning the disputed fees and penalties raised by the parties and to define and limit the scope of issues remaining as subjects for the hearing sessions. The ALJ may direct disclosure between the parties and outline the conduct of the hearing.

(2) Following the conference, the ALJ will determine and advise the parties of the issues to which testimony and other evidence in the adjudicatory session will be limited.

(3) The ALJ will summarize for the record the action taken at the conference and incorporate into the record any admissions, stipulations or agreements which were made by the parties.

(4) If, as a result of the conference, the ALJ determines that there are no disputed issues of fact, but only issues involving the interpretation or application of either the regulations or article 72 of the ECL, the ALJ shall prepare a report summarizing the material facts and disputed issues and refer the matter to the general counsel for a declaratory ruling, in accordance with Part 619 of this Title. A copy of this report will be served on the parties and the hearing will be cancelled. The parties may file briefs with the general counsel on the issues set forth in the report.

(g) Conduct of the hearing.

(1) Order of events. The ALJ will have discretion to adjust the order of events and establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing shall be as follows:

(i) Formal opening: the ALJ will convene the hearing by opening the record, identifying the issues involved and making appropriate procedural announcements as necessary.

(ii) Noting appearances: the ALJ will call the name of the person who has requested the hearing and note the appearance of counsel, if any.

(iii) Opening statements: prior to the commencement of the evidentiary hearing each party may offer a brief opening statement of position on the issues in dispute.

(iv) Admission of evidence: the person requesting the hearing will present its direct case first. The department will then present its case. Evidence will be confined to that which is relevant to the issues identified by the ALJ.

(v) Closing statements and briefs: closing statements of position will be taken in the same manner as opening statements. At the concluding session of the hearing the ALJ will determine whether to allow the submission of written post-hearing briefs and proposed findings of fact. The hearing record will be officially closed upon the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, proposed findings of fact, memoranda, and exceptions, if any, by the various parties, whichever occurs later. The ALJ will notify the parties by regular mail upon official closing of the hearing record.

(2) Motions and requests may be made at any time during the course of a hearing and will be part of the record.

(3) The ALJ will make findings of fact and conclusions based on the record and will forward a hearing report to the commissioner for final decision. Where the ALJ has permitted parties to submit proposed findings of fact, the hearing report shall include a ruling on each proposed finding.

(4) Except as specified elsewhere in this Part, all papers connected with a hearing may be served by first class mail.

(h) Subpoenas.

(1) In the case of a party not represented by an attorney:

(i) a subpoena for a witness during the course of a hearing shall be issued at the discretion of the ALJ; and

(ii) a subpoena involving specified records (subpoena duces tecum) shall be issued by the ALJ only when the party applying for such subpoena provides a written showing of necessity. Such subpoena shall designate as specifically as possible the books, papers or other materials to be produced by the party against whom the subpoena is served.

(2) Service of a subpoena will be the responsibility of the party requesting the subpoena.

(3) If a party or witness fails to respond to a subpoena personally served, the default will be noted in the hearing record. If the testimony involved is essential for the completion of a party's case, the hearing may be adjourned, until the party requesting or issuing the subpoena has had a reasonable opportunity to obtain compliance with the subpoena in accordance with applicable law.

(4) Nothing in this Part limits the authority of an attorney of record for any party to issue subpoenas under the provisions of section 2302 of the CPLR.

(i) Stipulations.

(1) At any time after publication of a notice of hearing, the ALJ may request that the parties attempt to stipulate to an agreement that will resolve specified issues and result in withdrawal of objections, limiting the scope of subject matter or discontinuance of the hearing.

(2) Such stipulations will be incorporated into the record of the hearing or agreed to in writing by the involved parties and filed with the ALJ.

(3) Such stipulations do not alter the responsibility of the commissioner to make a determination consistent with all applicable laws.

(j) Record of the hearing.

(1) Except as provided for in paragraph (2) of this subdivision, all evidentiary proceedings at the hearing will be electronically recorded.

(2) Any party, with the approval of the ALJ, may arrange for a certified reporter to produce a stenographic transcript of the hearing. When a stenographic transcript is made, an original transcript must be delivered to the ALJ at the expense of the party ordering the transcript.

(3) The ALJ will file with the commissioner a report and a complete record of the hearing which will include:

(i) the statement of issues, request for hearing, all notices (including a notice of hearing) and motions;

(ii) the electronic record of the hearing, the exhibits entered into evidence and any written transcript, if one was made;

(iii) any admissions, agreements or stipulations;

(iv) a statement of matters officially noticed;

(v) offers of proof, objections and rulings; and

(vi) proposed findings, if any.

(k) Evidence and burden of proof.

(1) All evidence submitted must be relevant. However, other legal rules of evidence observed in courts need not be strictly applied. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.

(2) Evidence otherwise relevant may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicate evidence.

(3) Where part of a document is offered as evidence by one party, any party may offer the entire document as evidence.

(4) Each witness must be sworn or make an affirmation before testifying. Opening, closing and other unsworn statements are not evidence they will be considered as arguments bearing on evidence.

(5) The person having to pay an annual program fee or penalty has the burden of proving, by a preponderance of the evidence, that it is entitled to the relief requested.

(6) The burden of proof to sustain a motion will be on the party making the motion.

(7) All decisions, determinations or orders must be made upon consideration of the entire record.

(l) Official notice.

(1) The ALJ or the commissioner may take official notice of a fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified in a generally accepted reference prior to or following the close of the hearing record.

(2) If the ALJ or the commissioner intends to take official notice of a material fact which does not appear in the hearing record and of which judicial notice could not be taken, every party must be given notice and an opportunity to dispute the fact and its materiality.

(m) Communication with the ALJ or commissioner in the absence of other parties (ex parte rule).

(1) No party will directly or through a representative communicate with the ALJ or the commissioner in connection with any issue without providing notice and an opportunity for all parties to participate.

(2) The ALJ or the commissioner must not directly or through a representative communicate with any party in connection with any issue without providing notice and an opportunity for all parties to participate. However, any party may ask for a clarification of procedures from the general counsel's office. The ALJ or commissioner may request aid and advice from any member of the department other than the staff acting as parties to the case.

(n) Final decision.

(1) The commissioner's decision will be made within 30 business days after the official closing of the hearing record. It will be sent to the person requesting the hearing and the attorney of record, if any, by certified mail. A copy of the decision will also be forwarded to the department staff.

(2) The commissioner's decision must be made upon consideration of the report and complete record, supported by substantial evidence and will be in writing. It will state the reasons for the action taken.

(o) Special provisions.

(1) At any time prior to issuing the final decision on the disputed fees or penalty, the commissioner or the ALJ may direct that the hearing record be reopened. This may be done to secure additional information or data or to consider significant new evidence.

(2) Tape recording or televising of a hearing for rebroadcast is prohibited by section 52 of the Civil Rights Law.

(p) Recusal. A party may file a written motion and supporting affidavits, with the ALJ, requesting the ALJ be recused. The ALJ's denial of the motion may be appealed to the commissioner within five days of the ALJ's ruling.

§481.11 Reasonable Cause

(a) The following exemplify grounds for reasonable cause, where clearly established by the person requesting a redetermination of a penalty, consideration of a late challenge, or reconsideration of a determination made in the challenge process when a timely response was not made:

(1) The death or serious illness of the person owing the regulatory fee or a responsible officer, employee or other representative of such person which precluded timely payment of the fees owed or timely challenge to the fees owed provided that the fee is paid within a justifiable period of time after the death, illness or absence. A justifiable period of time is that period which is substantiated by the person or the person's representative as a reasonable period of time for paying the fee owed.

Example: It was established that illness incapacitated the owner and sole stockholder of a small business concern during the period when a regulatory fee was owed and penalty was accruing. The owner further established that no other person had access to sufficient information which would have resulted in fee payment. The fee was paid with interest due within a justifiable time after the owner returned to work. This constitutes reasonable cause for failure to pay the fee.

(2) The destruction of the person's or the person's representative's place of business or business records by a fire or other documented casualty, which precluded timely payment of a regulatory fee owed or timely challenge to a fee owed provided that the fee is paid within a justifiable period which is substantiated by the person or the person's representative as a reasonable period of time for paying the fee owed based on the facts and circumstances of each case.

Example: The place of business, together with the business records and the regulatory fee bill were destroyed by a documented casualty at the period of time when the fee was due and penalty was accruing. The fee was paid within a justifiable period of time after the casualty took place. This constitutes reasonable cause for failure to pay the fee due.

(3) The fee bill was sent to an incorrect address, delaying the time when the bill was received by the person who owes the fee which precluded timely payment of the fee owed or timely challenge to the fee owed. The fee was paid within a justifiable period of time from when the bill was received and the person can prove that the incorrect address was not a result of the person's failure to notify the department of a change of address.

Example: A fee bill was normally sent to a subsidiary of a company. The subsidiary was closed and it took one month for the post office to forward the bill to the parent company. The parent company paid the bill within a justifiable period of time from when the bill was received. This constitutes reasonable cause for failure to pay the fee due provided that the parent company can prove that it notified the department of the address change.

(4) Any other cause for delinquency which would appear to a person of ordinary prudence and intelligence as a reasonable cause for delay and which clearly indicates an absence of willful neglect may be determined to be reasonable cause. Ignorance of law, however, will not be considered as a basis for reasonable cause. Reasonable cause may be determined to exist only where the person owing the fee acted in good faith. A criminal conviction or commissioner's order, in which a person has been found to violate the ECL, its regulations or permits, is evidence of the lack of good faith.