Senate Bill S2094

                                 BILL NUMBER:  S2094

 TITLE OF BILL :

An act to amend the environmental conservation law, in relation to
public hearings

 PURPOSE OR GENERAL IDEA OF BILL :

This bill would assure that the public is able to obtain environmental
permit administrative hearings on a broader range of appropriate
issues.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 70-0119 of the Environmental Conservation Law would be amended
to add a specific requirement that adjudicatory proceedings and other
public hearings be held by the Department of Environmental
Conservation (DEC) when hearing issues have the potential of
significantly improving the permit and the quality of the environment
or mitigating the project's impact as a result of DEC discretionary
modification of permit conditions or the project.

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.