BILL NUMBER:  S2093

 TITLE OF BILL :

An act to amend the environmental conservation law, in relation to
uniform procedures

 PURPOSE OR GENERAL IDEA OF BILL :

To require adequate public notice and disclosure from the beginning of
agency involvement in environmental permits and minimally sufficient
public comment periods after formal public notice.

 SUMMARY OF SPECIFIC PROVISIONS :

Article 70 of the Environmental Conservation Law which establishes
uniform procedures and specific time periods for processing permit
applications by DEC would be amended to require:

* 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.