Makes provisions regarding public hearings

The requirement that a public hearing be held when issues may result in denial of the permit or imposition of significant permit conditions would be concurrently clarified to require hearings when permit modification may significantly benefit the environment and the public interest.

Presently, a hearing must be held when it is likely that the permit will be denied or will meet standards only with major project modifications. This would be changed to require a hearing when significant modifications may enable the project to meet regulatory criteria.

Justification

McKinney's Practice Commentary regarding Section 70-0119 notes that the section implementing regulations (Part 6 NYCRR 621.7) and practical experience indicate that citizens must furnish "outlines of proposed testimony in opposition to a permit--sometimes a burdensome requirement for citizens groups with scant resources or time to obtain expert witness. The statute and regulations should be interpreted with due consideration of these factors." However, DEC interpretation errs by making it even more burdensome for the public or for public officials. Given that procedural requirements such as the necessity to offer specific testimony (which this bill does not change) are of interest. Presently, a hearing must be held when it is likely that the permit will be denied or will meet standards only with major project modifications. This would be changed to require a hearing when significant modifications may enable the project to meet regulatory criteria.

It is extremely difficult, if not impossible, for citizens to obtain administrative hearings unless they have had unusual advance warning of a project proposal, have a lawyer and experts on hand AND are prepared to go to court when a hearing and/or their status as parties are denied.

Under DEC's present hearing procedures, it is very difficult for the public to raise issues leading to a hearing unless DEC staff has somehow virtually overlooked a major issue or the public has come forward prepared to offer volumes of testimony and data proving that the applicant and DEC have committed significant errors in their analysis of the project. LARGELY ABSENT IS ROOM FOR REASONABLE DISAGREEMENT THAT MAY THEN BE THE SUBJECT OF A HEARING .ct. In fact, some court decisions have simply reviewed issues raised by the public, concluded that they are substantive and significant and ordered DEC to conduct a hearing (e.g., on the renewal of New York City's sewage plant water pollution permits).

An example of how DEC hearing examiners handle issues proposed for adjudication is demonstrated by the New York City Comptroller's suggestion that the Bronx-Lebanon Hospital Medical Waste Incinerator permit be altered to require that one of every 100 containers of regulated medical waste received by the facility be inspected in order to guard against improper hazardous and toxic waste disposal. The applicant for this $15 million project who was not required to prepare an environmental impact statement and whose facility had mere ministerial (rubber stamp) review of its air permit to construct, opposed this, stating that there were other permit conditions and regulations about inspection. DEC staff objected for similar reasons. The hearing officer barred a hearing, stating, "An attempt by a prospective intervenor to change a draft Special Condition, or add another one is an attempt to substitute the prospective intervenor's expertise for that of the Department Staff. This can be done, however, to raise an issue in this regard, the prospective intervenor must make some showing to indicate that there exists a question concerning the applicant's ability to meet a statutory or regulatory requirement, and that the imposition of the Special Conditions, as drafted, will not eliminate the question. Here, the Comptroller, after multiple opportunities to do so, has not even identified any particular statutory or regulatory requirement that he believes will not be met by the applicant, much less demonstrate the existence of a question concerning the applicant's ability to meet the requirement and demonstrate that the question is not eliminated with the drafted special conditions."

Notwithstanding such individual case studies, DEC's present general practices are outside the intent of the statute. To make matters worse, in the October 28, 1992 State Register, the department proposed revisions to NYCRR Part 624 that would both codify in regulation the existing unacceptable practices and also make it harder for the public to obtain hearings in other important respects. If adopted, the rules would make it even more necessary to be represented by counsel and experts in a proceeding, and would, among other things, define "substantive" as "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." This test, among other things, would seem to require that an administrative judge determine that DEC staff and the applicant are not acting reasonably.

If hearing procedures were the only measure, one would conclude that DEC has lost its mission. Obviously, reasonable people may disagree about whether a project or draft DEC permit may be changed in a manner that improves upon environmental protection. DEC's present procedures leave little, if any, room for the public to raise significant, cumulatively important or smaller issues with important ramifications. The statutory provision that major permit or project changes must be advanced in order to conform permits to regulatory requirements is unnecessary and excessive. Significant changes is an adequate standard. This bill would assure that the permit hearing process is entered into when the proceeding could lead to significant improvements in the permit and quality of the environment under DEC authority, or mitigation of environmental impacts, or permit modification that substantially benefits the environment and public interest. This should be the agency's goal, and if passed, the sole burden on the public will no longer be that it successfully offer to prove that it can prove DEC staff and project applicants have, in effect, committed grievous error.

This bill requires that the department bring its discretionary authority to bear on permit and project improvements once substantive and significant issues are raised that demonstrate that departmental discretion may be used to benefit the environment, even though the permit without the proposal might still be legally defensible. This discretionary and general authority is contained in various provisions of law such as ECL 1-0101, 3-0301, 8-0103, 15-0105, 19-0301, etc. DEC's present practice of conducting hearings only when specific statutory and regulatory provisions are documented to be violated are too narrow. It is inappropriate for the department not to bring its discretionary authority to bear on individual permit decisions, which are the primary means day-in and day-out in which the environmental protection laws are implemented.

Regulations to implement this bill would be adopted by regular rulemaking. Such rules would, among other things, include guidelines for the process of making such determinations.

This bill does not change the present requirement that issues raised in comments or requests for public hearing be substantive and significant.

Prior legislative history

2007-08 - A.1010 - Referred to Environmental Conservation 2005-06 - A.1421- Advanced to 3rd reading Cal.410/S.3863- Referred to Environmental Conservation 2003-04 - A.2834- Advanced to 3rd reading Cal.670/S.3677- Referred to Environmental Conservation 2001-02 - A.1320- Advanced to 3rd reading Cal.630/S.4828- Referred to Environmental Conservation. 1999-00 - A.2900- Passed Assembly/S.43- Referred to Environmental Conservation.

Fiscal implications

An increased but unknown number of administrative hearings will probably be held by the department as a result of passage of this bill, but such hearings are supposed to be conducted under the present statute. The effective date of the bill would take effect in the fiscal year following enactment after adequate time has been allowed to develop implementing regulations.

Effective date

April 1st next succeeding enactment except that regular rulemaking procedures to implement the law may be undertaken immediately and shall be completed on or before such date.