by Thomas S. West, Esq
New York State is notorious for the lengthy amount of time that it takes to get permits and approvals for high profile projects involving environmental issues. The regulatory process was created and has been expanded over time to provide opportunities for citizen participation, which often becomes an opportunity for project opponents to delay or defeat major projects. This has had a chilling effect on decision-makers who determine whether to invest risk capital in New York State. Recently, however, the New York State Department of Environmental Conservation (DEC) has reacted positively to innovative strategies to expedite the permitting and approval process. This article discusses two recent case studies that serve as an example of how to use regulatory tools that are available to project sponsors to promote orderly decision-making.
Any discussion concerning processing major projects must take into account the requirements of the New York State Environmental Review Act (SEQRA). SEQRA is a tool that was created to promote informed decision-making and is applicable to all major project development that requires any type of State or local governmental approval. Often, however, SEQRA is used by project opponents as a mechanism to delay, derail or defeat projects. As such, any major project that has the potential for controversy needs to have a well-developed SEQRA strategy that promotes decision-making without the opportunity for unnecessary political influence.
Careful consideration of the Lead Agency under SEQRA can be valuable to expediting the process. Where the Lead Agency is an agency other than the DEC, there are distinct procedural advantages under the regulations and established precedent to limit issues that can be forced into an adjudicatory hearing. An adjudicatory hearing is part of the process contemplated by the Permit Hearing Procedures (6 NYCRR Part 624) administered by Administrative Law Judges (ALJs) employed by the DEC. These hearings are trial type hearings that often take months, if not longer, and lead to protracted decision-making at the DEC. Many projects have been bogged down in the adjudicatory hearing process for years and some projects have never completed the process. Avoiding an adjudicatory hearing or limiting the scope of an adjudicatory hearing is key to expedited permit processing. Significantly, where the SEQRA process is completed by a Lead Agency other than the DEC, the ability of project opponents to adjudicate SEQRA issues is limited.
Establishing a complete application package that is accepted by the DEC in a timely manner is often another place where controversial projects languish. Here, too, it is important to anticipate controversial issues, establish goals with the DEC staff for how those issues will be handled and work with the Uniform Procedures’ schedules to ensure timely completeness determinations. Through an open dialogue with DEC staff, permit application packages can be tailored to build a record in support of project development.
Two recent major landfill expansions in New York State demonstrate how the procedural tools available to applicants can be used to expedite decision-making. Recently, the DEC issued permits and approvals to Ontario County to support a major expansion of the Ontario County Landfill. Among other permits, this project included an application for a modified solid waste permit under Part 360 of the Department’s regulations and a modified Title V Air Permit. Following the completeness determination, the project received final approvals in 11 months, even though one issue required adjudication in an adjudicatory hearing and other issues went through the issues conference process and appeals to the DEC Commissioner. By stipulating to adjudicate one issue on a parallel track with the issues conference/appeals process, the DEC processed those issues in record time. Key to this strategy was anticipation of the opposition issues and the creation of a strong administrative record in the permit application documents to support compliance with the regulatory standards.
A second example demonstrates even more promising procedural opportunities. Just recently, the DEC issued permits and approvals for a major expansion of the Chemung County Landfill. These permits and approvals were issued in the face of objections from local project opponents that included support for those issues from proposed experts. By building a strong administrative record in the permit application documents and submitting compelling responses to comments, the applicant was able to convince the DEC to issue the permit over objections, without referring the matter to an ALJ for any further administrative process.
In the final analysis, permitting controversial projects will remain a challenge in New York State. However, there are tools available to applicants to expedite the process.