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A01775 Summary:

A01775 Actions:

A01775 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A1775
 
SPONSOR: Dinowitz (MS)

 
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 circu-
lation 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 regu-
lation requires 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 applica-
tions 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-appli-
cation 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 circu-
lation 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 unsatis-
factory 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 noti-
fied 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 partic-
ipate meaningfully is particularly curtailed if during the pre-applica-
tion 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 pre-applica-
tion conferences which they may observe without comment. They may also
obtain immediate access to all applicant-DEC correspondence upon written
request.
 
 
PRIOR LEGISLATIVE HISTORY:
 
2015-16- A.2002A - Referred to Environmental Conservation
2013-14- A.307- Advanced to Third Reading Calendar
2011-12- A.814- Advanced to Third Reading Calendar
2009-10- A.838- Passed Assembly/S.2093- Referred to Rules
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.
1999-2000- 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.

A01775 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1775
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2017
                                       ___________
 
        Introduced  by M. of A. DINOWITZ, ROSENTHAL, COLTON, OTIS -- Multi-Spon-
          sored by -- M.  of A. LUPARDO, PERRY, RAMOS -- read once and  referred
          to the Committee on Environmental Conservation
 
        AN  ACT  to  amend  the  environmental  conservation law, in relation to
          uniform procedures

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Paragraph  (a) of subdivision 1 of section 70-0109 of the
     2  environmental conservation law, as added by chapter 723 of the  laws  of
     3  1977, is amended to read as follows:
     4    (a)  On or before fifteen calendar days after the receipt of an appli-
     5  cation for a permit which has been filed in  a  manner  and  in  a  form
     6  prescribed  by  the department, the department shall mail written notice
     7  to the applicant of its determination whether or not the application  is
     8  complete  and shall publish a listing in the environmental notice bulle-
     9  tin that such application, whether or not complete, has been submitted.
    10    § 2. Subdivision 1 of section 70-0109 of the  environmental  conserva-
    11  tion law is amended by adding a new paragraph (f) to read as follows:
    12    (f)  A  member  of  the  public, upon request in writing, shall be (i)
    13  given access to all correspondence between the applicant and the depart-
    14  ment except for trade secrets or material maintained for the  regulation
    15  of  commercial  enterprise  which  if  disclosed would cause substantial
    16  injury to the competitive position of the applicant, and  (ii)  informed
    17  about pre-application conferences or meetings between the department and
    18  any  applicant and may attend without participating in those in which he
    19  or she has an interest.
    20    § 3. Paragraph (a) of subdivision 2 of section 70-0109 of the environ-
    21  mental conservation law, as amended by chapter 285 of the laws of  1990,
    22  is amended to read as follows:
    23    (a)  Immediately upon determining that an application is complete, the
    24  department shall cause a notice of application to be  published  in  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03603-01-7
        A. 1775                             2
 
     1  next  available  environmental  notice bulletin which shall be not later
     2  than ten calendar days after the date of such determination and not less
     3  than once during the fifteen calendar day period following such determi-
     4  nation  in  a  newspaper having general circulation in the area in which
     5  the project is proposed to be located, and shall provide notice  to  the
     6  chief  executive  officer  of  each  municipality  in which the proposed
     7  project is located, and may direct the applicant to provide such reason-
     8  able notice and opportunity for comment to the public as the  department
     9  deems  appropriate.  In  addition  to  being  placed in a publication of
    10  general circulation in the county or borough in  which  the  project  is
    11  located,  or  in  more than one publication if appropriate, where one or
    12  more publications of less than  county-wide  circulation  exist  in  the
    13  project  area  notice  shall be placed in at least one such publication,
    14  and in a project area where twenty-five percent or  more  of  the  popu-
    15  lation  is non-English speaking, notice shall also be placed in at least
    16  one publication which is widely circulated in the area printed  in  such
    17  language. In no case shall the public comment period be less than twenty
    18  days from date of publication, or forty-five days if a legislative hear-
    19  ing  or  public  hearing  is scheduled. If no hearing is scheduled and a
    20  member of the public requests during the comment period that a  legisla-
    21  tive  or public hearing be held, the comment period shall be extended an
    22  additional thirty days from date of  publication  in  the  environmental
    23  notice  bulletin  of notice that such a request has been made. Newspaper
    24  publications shall be provided by the applicant.
    25    § 4. This act shall take effect on the sixtieth  day  after  it  shall
    26  have become a law.