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619: Applicability Of Regulations and Statutes

[page 1 of 1]

Contents:

Sec.

§619.1 Petition for Declaratory Ruling

(a) The department may, on petition, issue a declaratory ruling with respect to: (1) the applicability to any person, property or state of facts of any regulation or statute which the department enforces, and (2) whether any action by the department should be taken pursuant to a regulation.

(b) Such petition shall be submitted in writing to:

General Counsel
Department of Environmental Conservation
625 Broadway
Albany, NY 12233-0001

(c) In order to be considered complete, each petition shall contain: (1) the name and address of the petitioner and a statement of the nature of the petitioner's interest in the matter; (2) a full and carefully detailed description of all relevant facts and circumstances, including a clear and concise statement of the controversy or uncertainty that is the subject of the petition and the need, or good cause, for the issuance of the declaratory ruling; (3) copies of all relevant documents and supporting materials; (4) reference to any pending administrative or judicial proceeding involving the same or similar set of facts, including the names and addresses of any other persons whose interests are reasonable likely to be affected by the ruling; and (5) citation to all relevant statutory and regulatory provisions. When a petition pertains to only one step of a larger transaction or fact situation, all relevant facts and circumstances must be submitted with respect to the entire larger transaction or fact situation.

(d) Within 10 business days after the receipt of a petition, the department shall mail notice to the petitioner that:

(1) the petition is complete for purposes of review;

(2) the petition is incomplete because of the lack of certain specified information needed to render a ruling; or

(3) the petition contains sufficient information, but the general counsel is availing the public of the opportunity for comment pursuant to subdivision (e) of this section.

Petitions which have been noticed for public comment pursuant to subdivision (e) of this section shall only be considered complete for review upon the department's receipt of the petitioner's response to all such public comments, if any.

(e)

(1) If the general counsel finds that it is in the public interest to solicit public comments on the petition, notice of the petition shall be placed in the Environmental Notice Bulletin at the earliest available opportunity, together with a brief summary of the facts and the issues presented. Notice may also be sent to any person whom the general counsel has reason to believe has a substantial interest in the petition. Public comments on the petition must be received by the department no later than 15 business days after publication in the Environmental Notice Bulletin. The due date will be specified in the notice.

(2) Upon receipt of all public comments, the department shall provide copies to the petitioner. Within 10 business days from receipt of copies of the public comments, the petitioner may respond to such comments or request an extension of time to respond.

(3) Upon mutual written agreement between the petitioner and the department, the time periods of this Part may be extended to a date certain. The period in which petitioner may seek judicial review will be deemed to commence at that time.

§619.2 Issuance of Declaratory Ruling

(a) Within 30 days of the receipt of a complete petition for a declaratory ruling, pursuant to section 619.1(a)(1) of this Part and within 60 days of the receipt of a complete petition for a declaratory ruling pursuant to section 619.1(a)(2) of this Part, the general counsel shall issue and mail to the petitioner either a ruling or, where any of the grounds set forth in section 619.3 of this Part exist, a written notification that a ruling shall not be issued and a statement of the reasons therefor. All rulings shall be filed in the Office of General Counsel and shall be available to the public pursuant to the provisions of Part 616 of this Title, Access to Records.

(b) Rulings will be made on the facts alleged in the petition and those facts will be assumed to be true. The department also 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.

§619.3 Grounds for Declining to Issue a Declaratory Ruling

The general counsel may decline to issue a declaratory ruling. The grounds for such declination are:

(a) the petition does not raise a question of the applicability of any regulation or statute enforceable by the department;

(b) the petition raises issues which are, have been or should have been the subject of department review pursuant to an application for a permit, license, certificate or other approval or are the subject of an enforcement proceeding;

(c) the petition raises issues that are the subject of pending rule making or litigation;

(d) the declaratory ruling is an inappropriate means of resolving the issues raised in the petition; or

(e) a response to the petition is not in the public interest; or

(f) the petition does not contain sufficient information or the petitioner has not adequately responded to the department's request for additional information needed to decide the issues presented.

§619.4 Overlapping Regulations; Compliance Determinations

(a) Any person subject to a requirement imposed by a State statute or rule administered by the department and to a similar requirement imposed by the Federal government may, pursuant to this Part, petition the general counsel for a declaratory ruling as to whether compliance with the Federal requirement will be accepted as compliance with the State requirement. Upon receipt of any such petition, the department shall submit a copy thereof to the Office of Business Permits and Regulatory Assistance.

(b) If the general counsel determines that compliance with the Federal requirement would not satisfy the purpose of relevant provisions of the State statute or rule involved, the general counsel shall so inform the petitioner in writing, stating the reasons therefor, and may issue a declaratory ruling to that effect. A copy of such written statement of reasons and any such declaratory ruling shall be submitted by the department to the Office of Business Permits and Regulatory Assistance.

(c) If the general counsel determines that compliance with the Federal requirement would satisfy the purposes and relevant provisions of the State statute involved but that it would not satisfy the relevant provisions of the State rule involved, the general counsel shall so inform the petitioner and the Office of Business Permits and Regulatory Assistance and may initiate a rule making proceeding in accordance with the State Administrative Procedure Act to consider revising such rule to allow compliance with such Federal requirement to be acceptable as being consistent with the requirements and purposes of such State statute.

(d) If the general counsel determines that compliance with the Federal requirement would satisfy the purposes and relevant provisions of both the State statute and rules involved, the general counsel shall issue a declaratory ruling indicating its intention to accept compliance with the Federal requirement as compliance with the State requirements, and the terms and conditions under which it intends to do so. A copy of such declaratory ruling shall be submitted by the department to the Office of Business Permits and Regulatory Assistance.