Anyone can prepare and submit public comments. Refer to your own experience, your special knowledge of the community or the environment, and the reasons for your concerns about the proposal.
First you need to know the public comment period is the first public phase in the DEC's review of an application for a permit. A more formal trial-type hearing on specific issues could follow, with different rules and phases. The comment period is preceded by written exchanges and phonecalls between the applicant and the DEC designed to complete the application. For more about the DEC review process as whole, see further below.
Next you need to know environmental permits in New York are generally reviewed under two different standards. Most of the application is highly technical and designed to show that the proposed landfill will be engineered to meet minimum environmental protections required by state and federal law. However, the landfill proposal must also comply with the State Environmental Quality Review Act (SEQRA), which is not so technical.
SEQRA provides more opportunity for commenting from the public, most of whom lack a technical background and therefore cannot as a practical matter read the application details. SEQRA defines the environmental broadly to include not just the physical environment, but the character of the community.
Under SEQRA, when adverse impacts on the environment will occur even after the minimum engineering specifications have been met--as is the case here--an environmental permit applicant must show those impacts have been avoided to the maximum extent it is practical to expect.
Since impacts on the character of the community are environmental impacts like any other under SEQRA, your comments to the judge at the public hearing should focus on a two-part issue:
1. What is the character of my community?
2. How will those characteristics be spoiled by this project?
You can put your answers to these questions in plain language, but above tell the judge specific details about what you know about your community, and how a project of this size and type (described in detail elsewhere on our website) will impact the community characteristics you've described. You can provide lots of detail in written comments, and summarize your written comments at the hearing. You can submit written comments to the DEC at the address in the top left margin or at the hearing submit them personally to the judge. You can also provide oral comments only, because your oral comments will be recorded by a stenographer for the record.
It is important to show the judge plainly what you know about the characteristics of the community, because neither he nor the permit applicant are from your community. What is lacking in the review process is local knowledge about what's here, and how it could be spoiled, and that's what the judge is looking for from you. Without your participation, the judge is likely to give great weight to the applicant's portrait of your community, and its contention that the impacts that remain, even after all the minimum requirements have been met, are insignificant.
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Here's an example of how public comments fit into a specific permit application review by a state agency such as DEC.
1. PUBLIC COMMENTS AND THE PUBLIC HEARING
A public comment period usually opens for 30 days. If your comments are received after the deadline, they may not be considered. If you don't think that's enough time, immediately write the agency asking that the comment period be extended, specifying the reasons why you need more time (e.g., size the project, complexity of the issues, need to contact other authorities for more information, need to FOIL the sponsoring agency for more information.)
The number of public comments received and their seriousness will determine whether the sponsoring agency will schedule a public hearing after the close of the initial comment period. This has the effect of extending the comment period to the last public hearing date because you should be able to submit written comments right up to the hearing.
If you prepare written comments, you need not attend a public meeting or hearing to submit your comments. You can simply mail, email, fax, or deliver your comments in person to the agency contact person whose address will be provided in the public notice.
If you already submitted written comments, you may supplement or correct them with new comments submitted by the hearing date.
Your public comments will be most effective if you do the following:
* Type and submit comments in a clear concise manner
* Refer to specific portions of the application materials or EIS (by chapter and page)
* Describe your recommendations and how they compare with the proposed action
* Explain why a recommendation would work better than the action proposed
* Submit relevant information to support your recommendations, such as your knowledge of how land is used (for recreation, gardening, travel, school), the qualities and characteristics of the community, and your assessment of how this project will affect those uses and characteristics.
Of course, you may make whatever verbal or written comments you wish. You may speak in favor of a proposed activity, oppose approval for such an activity, or merely share concerns about whether and how it could affect you, your family, and your neighborhood or the environment generally. You could also make a case that a permit should only be issued if certain conditions are included. Regardless of your position, comments that are based on facts and and local knowledge will likely have more impact on the agency's decision than simply stating that you are for, or against, issuing a permit or other approval for the proposed activity.
2. ADJUDICATORY (TRIAL-TYPE) HEARING
An adjudicatory hearing is an adversary trial-type proceeding held by a state agency (such as DEC) in which a proponent of an issue must overcome the presumption that the permits as drafted are sufficiently protective of health and the environment, and must convince the ALJ to change or deny a permit. Like the public hearing (also called a legislative hearing), it will be run by an administrative law judge (ALJ).
The ALJ is an independent hearing officer, unconnected to the local DEC Staff who have drafted permits for the proposed project.
An adjudicatory hearing must be based on one or more issues for which proof or evidence is offered, and which have the potential to support permit denial or additional conditions on the permits the DEC has drafted. For example, in the Farmersville landfill proposal, a solid waste management permit, an air pollution operating permit, a water discharge permit and a permit to disturb wetlands are all required.
SEQRA issues (discussed above) must also be adjudicated if raised by a party who has submitted a petition for party status, if the party has sufficient proof of adverse impacts, and if the agency is designated "lead agency" under SEQRA. If this last condition is not met (e.g., DEC is reviewing a gravel mine permit application but the lead agency is the municipal planning board), no SEQRA issues can be adjudicated before that agency. Such issues must instead be brought to the attention of the lead agency, following their rules.
For state agencies like DEC, there are two phases in the decision to hold an adjudicatory hearing, an issues conference and the process of hearing testimony and considering evidence for or against the issue.
An issues conference helps the ALJ decide whether to hear one or more specific issues. Issues raised in pre-filed petitions for party status will be argued orally, and the judge will attempt to narrow down the issues and determine if there is sufficient evidence to justify going forward to an adjudicatory hearing.
The ALJ will schedule an adjudicatory hearing only after the issues conference. Unlike the public hearing, in which any member of the public can participate, only persons, groups, organizations, and municipalities who propose an issue in writing prior to the Issues Conference will be considered as parties in an adjudicatory hearing.
Formal hearing procedures apply to adjudicatory hearings. This means, among other things, evidence must be relevant to an issue that would affect the permit, and must be credible. Issues may be supported with arguments rather than evidence, but then they must be relevant to particular regulatory requirements. For this reason, those seeking party status are generally represented by an attorney.
In the course of an adjudicatory hearing new evidence is often introduced, and all parties must be given an opportunity to comment and offer rebuttal evidence or testimony. If an issue involves allegations that the basis for claims made in the application materials is inadequate, it may require time to gather more evidence, and parties must be given an opportunity to review and comment on that.
Finally, adjudicatory hearings often involve interim decisions by the ALJ who runs the hearing. Interim decisions are necessary regarding admissibility of evidence, the validity of issues and whether persons or entities will be granted or denied party status. Interim decisions can be appealed to the agency chief (e.g., Commissioner of the DEC) by parties who disagree, and a ruling from the Commissioner can take two months or more.
The entire adjudicatory hearing process often takes two years or more to complete.
