1. (1) Not less than 60 days from the date of issuance of the combined notice required by section 900-8.2(d) of this Subpart, a public comment hearing shall be convened to hear and receive the unsworn statements of parties and non-parties relating to the siting permit application. A stenographic transcript of such statements shall be made but shall not be part of the record of the hearing, as defined by section 900-8.11 of this Subpart.
2. (2) The ALJ may require that lengthy statements be submitted in writing and summarized for oral presentation.

3. (3) The statements made at the public comment hearing shall not constitute evidence, but may be used by the ALJ as a basis to inquire further of the parties and potential parties at the issues determination stage.

   (b) Issues determination.

4. (1) In the combined notice required by section 900-8.2(d) of this Subpart, the mandatory parties identified in section 900-8.4(b) of this Subpart and any potential parties shall be provided with the opportunity to file papers concerning potential substantive and significant issues, which shall be determined in advance of the adjudicatory hearing. The issues determination procedure shall be conducted solely on papers, unless the ALJ, in their sole discretion, determines that oral argument is necessary to fully understand the issues proposed by the parties and potential parties. At the ALJ’s discretion, an issues determination may be revisited at any time prior to the issuance of a final decision in order to consider issues based on new information upon a showing that such information was not reasonably available at the time of the issues determination. Upon a demonstration that the public review period for the application prior to the issues determination was insufficient to allow potential parties to adequately prepare for the issues determination procedure, the ALJ may adjourn the issues determination, extend the time for written submittals or make some other fair and equitable provision to protect the rights of the potential parties.

5. (2) The purpose of the issues determination procedure is:

   1. (i) to receive argument on whether party status should be granted to any petitioner;
   2. (ii) to narrow or resolve disputed issues of fact without resort to taking testimony;
   3. (iii) to receive argument on whether disputed issues of fact that are not resolved meet the standards for adjudicable issues set forth in subdivision (c) of this section;
   4. (iv) to determine whether legal issues exist whose resolution is not dependent on facts that are in substantial dispute and, if so, to receive argument on the merits of those issues; and
   5. (v) to decide any pending motions.
6. (3) The ALJ shall preside over the issues determination procedure. Participants shall include office staff, staff from other involved State agencies, the applicant, and any person who has filed a petition for party status pursuant to section 900-8.4(c) of this Subpart.

7. (4) Within 15 days after the close of the public comment period, the filing of petitions for party status, or the filing of a statement of compliance with local laws and regulations, whichever event occurs later:

   1. (i) Office staff may file and serve a response to any petitions for party status, any statement of issues by applicant, and the statement of compliance with local laws and regulations.
   2. (ii) The applicant may file and serve a response to any petition for party status or statement of compliance with local laws and regulations. In addition, the applicant shall file and serve on office staff a response to public comments received during the public comment period, including any supplemental information.

8. (5) In no event later than 30 days after the date of receipt of written submissions for issues determination and responses thereto, the ALJ shall:

   1. (i) determine which persons will be granted party status;
   2. (ii) determine which issues satisfy the requirements for being adjudicable issues as set forth in subdivision (c) of this section, and define those issues as precisely as possible;
   3. (iii) rule on the merits of any legal issue where ruling does not depend on the resolution of disputed issues of fact;
   4. (iv) decide any pending motions to the extent practicable; and

   5. (v) summarize comments received on the application and draft permit conditions or intent to deny.

      (c) Standards for adjudicable issues.

9. (1) Generally applicable rules. Subject to the limitations set forth in paragraphs (6) and (7) of this subdivision, an issue is adjudicable if:

   1. (i) it relates to a substantive and significant dispute between office staff and the applicant over a proposed term or condition of the draft siting permit, including uniform standards and conditions;
   2. (ii) public comments, including comments provided by a municipality, on a draft siting permit condition published by the office raise a substantive and significant issue;
   3. (iii) it relates to a matter cited by office staff as a basis to deny the siting permit and is contested by the applicant; or
   4. (iv) it is proposed by a potential party and is both substantive and significant.
10. (2) An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ shall consider the proposed issue in light of the application and related documents, the standards and conditions, or siting permit, the statement of issues filed by the applicant, the content of any petitions filed for party status, the record of the issues determination and any subsequent written or oral arguments authorized by the ALJ.
11. (3) An issue is significant if it has the potential to result in the denial of a siting permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit, including uniform standards and conditions.
12. (4) In situations where office staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft siting permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant.
13. (5) If the ALJ determines that there are no adjudicable issues, the ALJ shall direct that no adjudicatory hearing be held and that office staff continue processing the application to issue the requested siting permit, including issuance of a written summary and assessment of public comments received during the public comment period on issues not otherwise addressed in the ALJ’s ruling.
14. (6) The completeness of an application, as defined in this Subpart, shall not be an issue for adjudication.
15. (7) ORES-initiated modifications. The only issues that may be adjudicated are those related to the basis for modification cited in the office’s notice to the permittee. Whenever such issues are proposed for adjudication, the determination to require adjudication shall be made according to the standards set forth in paragraph (1) of this subdivision.

(a) Public comment hearing.