Makes various provisions regarding uniform procedures

* DEC regulations requiring newspaper notices in general circulation, newspapers in counties or boroughs plus at least one newspaper of less than county-wide circulation in the project area plus at least one non-English speaking newspaper where 25% or more of the population is non-English speaking.

* Publication in the Environmental Notice Bulletin of a listing of all applications submitted to DEC regardless of whether the application is determined to be complete.

* That members of the public so requesting in writing be informed about and permitted to attend without participating all pre-application conferences between any applicant and DEC and be given access to all correspondence between the applicant and DEC. Public comment periods after publication be at least 20 days, or 45 days if a legislative or public hearing is scheduled. If no hearing is scheduled and one is requested, the public comment period shall be extended an additional 30 days.

Effects of present law which this bill would alter

Present law requires publication in newspapers having "general circulation in the area in which the project is proposed to be located." Notice of applications is presently published in the Environmental Notice Bulletin (ENB) only after the application has been determined to be complete. Statutory authority does not exist for pre-application procedures and internal correspondence between DEC and applicants are not presently the subject of any regulatory requirements such as public notification. The statute provides for conceptual review which by regulation require public notification in the ENB.

Article 70 does not specify minimum time requirements for public comment, only that, "The time requirements for public comment on a permit application shall be stated in the notice of application." However, stringent time periods are set for processing permit applications and for notification of applicants. For instance, hearings must begin within 90 days of notice that an application is complete and notification of complete or incomplete application must be made within 15 days after the application is received or it is deemed complete. Permits are automatically granted if DEC fails to meet time deadlines upon notice to the Commissioner and his failure to act.

Justification

Article 70 was enacted in 1977 amid appropriate concern about the impact of regulatory requirements on the costs of doing business. However, the public's right to an adequate review and comment period can be squeezed inadequately in between the required time periods for determining an application to be complete and mailing a decision.

This bill does not change existing required time frames but enhances public comment by requiring minimum reasonable advance notification of comment periods and public hearings. This assures that other factors are not permitted to interfere with minimum time-frames for public notice and comment. The bill also provides for public notification of pending projects by requiring that such applications be listed in the ENB when they are submitted, not only after applications are determined to be complete. Public access to necessary information will be enhanced for those who request access to pre-application conferences and agency-applicant correspondence. Article 70 does not authorize such pre-application procedures, only conceptual review with public notice. However, pre-application procedures are a defensible procedure and the public should have access to them in order to be adequately informed once the notification for public comment takes place. The bill does not permit public involvement at that stage, only observation.

The only notable amendments to Article 70 since its enactment were in 1990 when the requirement of publication in newspapers of general circulation was added. Information disclosed since then demonstrates that this is an inadequate directive. For instance, a notice regarding a Bronx project was published in NEWSDAY at a time that the paper was on only two newsstands in the borough in spite of the fact that other city-wide, borough, community and non-English speaking papers were available.

Experience demonstrates that even the public notice and comment periods provided in this bill are too short to allow for meaningful public involvement in environmental permits. In important measures, this is true because extensive "informal" pre-application procedures may take place over a period of many months. During this time, a permit applicant and DEC regional and headquarters staff may become involved in extensive meetings, correspondence and informal "appeals" by an applicant to the supervisors of regional DEC staff. If an applicant receives an unsatisfactory result in the region, informal redress may be sought with DEC headquarters staff in Albany. This process ultimately and frequently leads to a DEC staff determination that an application is complete. Presently, it is only after this process ends that the public is notified about the project. At this point, the public has a matter of days to review a project that the DEC staff has determined is complete. Some commentators consider that at this point the public's ability to participate meaningfully is particularly curtailed if during the pre-application process DEC staff has determined that an EIS need not be prepared. This bill addresses the problem of short notice and comment periods and absence of issuance of a draft EIS by providing that members of the public so requesting in writing may receive notification of preapplication conferences which they may observe without comment. They may also obtain immediate access to all applicant-DEC correspondence upon written request.

Prior legislative history

2007-08: A.1007 - Passed Assembly 2005-06: A.1422 - Passed Assembly 2003-04: A.2848 - Passed Assembly 2001-02: A.1327 - Referred to Environmental Conservation. 1999-00: A.2799 - Passed Assembly

Fiscal implications

None noted other than additional notices to be published in the ENB. EFFECTIVE DATE : This act shall take effect 60 days after it becomes law.