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Submitted Comments on DEC Regulations

Executive Order 25

The following is a list of comments submitted to DEC. These comments were reviewed and factored into a report which went to the Governor's office. The full report from DEC (705 kb PDF) is now available.

Air Regulations

  1. See note below * - As a member of Environmental Advocates of New York, I am deeply concerned about the Governor's attempt to roll back environmental regulations. While the goal of Governor Paterson's Executive Order #25 is to put polluters ahead of New Yorkers, I'd like to use this moment as an opportunity to point out a current regulation in need of review.

    New York has a serious mercury contamination problem, particularly in the Adirondack and Catskill Mountain areas. New York should reduce the amount of mercury emitted by coal fired power plants.

    Technology is available to affordably control 90 percent of the mercury pollution coming out of our coal plants. But per the Department of Environmental Conservation's regulation, major reductions in mercury pollution will not occur for five years. By requiring deeper cuts on a faster timeline, New York could prevent hundreds of pounds of dangerous mercury from entering our environment. And the sooner we clean up our power plant smokestacks, the sooner we will see relief from mercury contamination. Why are we waiting to protect public health and wildlife? Thank you for your attention to this critical issue.

    * DEC received 587 e-mails containing this comment. The majority of the commenters identified themselves as members of Environmental Advocates. A few of the letters contained slight variations on this comment, but the substance of the comment was the same.
  2. Gavin Donohue- Independent Power Producers of NY - Two documents were sent as PDFs:
    IPPNY Comments Relating to EO 25 - 1.4 Mb PDF
    Regulatory Issues Affecting Power Producers - 4.3 Mb PDF
  3. Randolph S. Price, Vice President, Environment, Health & Safety, Consolidated Edison Company of New York, Inc.- Consolidated Edison Company of New York, Inc. ("CECONY" or the "Company") welcomes the opportunity to provide comments to the New York State Department of Environmental Conservation (the "Department") identifying "existing [Department] regulations that the Company believes impose unnecessary, burdensome or excessive costs, paperwork, reporting or other requirements." These comments are provided pursuant to Governor Paterson's Executive Order No. 25, issued August 6, 2009, and in response to the Department's public notice in the December 16, 2009 Environmental Notice Bulletin ("ENB"). These comments are also being provided to each of the e-mail links listed in the ENB Notice with respect to the specified regulatory topics identified below.

    CECONY is a subsidiary of Consolidated Edison, Inc., one ofthe nation's largest investor-owned energy companies. The Company, a regulated utility under the New York Transportation Corporations Law, provides electric, gas and steam service to more than three million customers in New York City and Westchester County. Overall, CECONY serves a population of approximately nine million people throughout a service territory covering 660 square miles.

    The Company is a recognized national leader in its commitment to environmental excellence, and has spent significant resources in achieving and maintaining the high quality of its environmental compliance programs. In 2008, CECONY's environment, health and safety expenditures were more than $370 million. CECONY will, of course, continue this commitment to environmental excellence, but as a regulated utility it also has an obligation to its customers to achieve environmental excellence at the lowest practical cost. Consequently, the Company is pleased to draw the Department's attention to areas that have the potential to improve the Department's regulatory processes by effectuating limited regulatory reforms that will reduce costs faced by energy consumers in the state and the state's own oversight costs without significant adverse environmental impact.

    The Company's comments on specific regulatory programs, set forth in detail below, are organized within four of the distinct regulatory categories outlined in the Department's ENB Notice, including (i) air regulations; (ii) environmental permit regulations; (iii) environmental remediation regulations; and (iv) solid and hazardous materials regulations. Where possible, and in accordance with the ENB Notice, the Company's comments make an effort to "suggest appropriate remedies that the agency may undertake to eliminate or amend regulations that are unnecessary, unbalanced, unwise, duplicative or unduly burdensome".

    1. AIR REGULATIONS.
    New Source Review. The federal New Source Review ("NSR") program for Prevention of Significant Deterioration ("PSD") and Nonattainment NSR ("NNSR") was adopted by Congress in 1977 and is triggered when major stationary air emissions sources, such as power plants, make modifications that increase emissions. If triggered, the program requires obtaining a permit and installing costly pollution controls. NSR may apply even if a source's emissions are well below its permit limit. Since 1977, EPA and the Department have adopted several comprehensive programs for limiting emissions of pollutants covered by NSR, such as S02, NOx, and particulate matter. These programs have had great success in reducing these emissions. For example, the decline in S02 emissions from the power industry nationwide has resulted in a 71 percent reduction between 1980 and 2008 in annual mean ambient S02 concentrations. Similarly, there has been a more than 55 percent reduction in NOx emissions between 1990 and 2008 from affected units covered by the acid rain program.

    The Department has taken an active approach in implementing NSR in New York through its 6 NYCRR Part 231-3 et seq. regulatory program implemented in 2009. These regulations establish a separate and more stringent New York PSD program and more stringent requirement under NNSR. Under the State's program, the Department has indicated that NSR's routine maintenance exclusion "must be viewed in the nature of a narrow 'de minimis' exclusion." In addition, in several instances, the Department has adopted more stringent requirements than mandated by federal law. Consequently, the Company makes the following suggestions. First, New York should either resume its delegation under the federal PSD program or conform the PSD portion of New York's NSR program to be consistent with the federal program. Similarly, the state's NNSR program should also be conformed to federal guidelines. Air quality in New York can continue to be protected by a comprehensive system of federal and state air regulations. Second, pending these actions, the Department should clarify in its current regulations that ongoing, routine maintenance projects, fairly determined by industry standards, will not trigger NSR. Third, the provisions of the Department's NSR regulations in excess of federal requirements should be eliminated. These would include excessive reporting and recordkeeping requirements (see 6 NYCRR § 231-3.6(c)) and unduly strict requirements for establishing a baseline for emissions for determining emissions increases (see 6 NYCRR § 231-4.1(b)(7)).

    Clean Air Act § 185 Fees. Federal law provides for the collection of fees from major NOx and VOC emissions sources in severe or extreme nonattainment areas based upon exceedances above certain thresholds. Clean Air Act ("CAA") § 185 is a remedial measure that imposes an inflation-adjusted fee of approximately $8,000 per ton for each ton of NOx and VOCs emitted by a major stationary emissions sources in excess of a baseline amount in any severe or extreme nonattainment area that missed its November 2007 attainment deadline for the EPA's one-hour ozone standard. All of CECONY's steam-electric generating units are considered major sources under the CAA and are located in a severe nonattainment area for ozone. Under § 185, New York State would impose and collect fees under its State Implementation Plan ("SIP") and could ostensibly and unfairly place the fee burden on major sources regardless of their individual contribution to ozone nonattainment. For example, for the two years ended December 31, 2009, the Company estimates its § 185 fees are in the neighborhood of $5 million. Yet between 2003 and 2008, CECONY has spent substantial monies to reduce NOx and VOC emissions at its generating facilities, and has reduced its NOx emissions by more than 1,900 tons per year, or more than 40 percent, and VOCs emissions by almost 40 tons, or 30 percent.

    Recently, however, guidance issued by EPA suggests that states, such as New York, would have some flexibility in developing § 185 fee-equivalent or emissions-equivalent programs that foster emissions reductions to meet ozone attainment standards. For example, EPA has indicated that it could approve programs that provide for spending the proceeds of the § 185 fee program on emissions reductions of ozone-forming pollutants in the same geographic area. The EPA guidance also suggests that states could develop programs that shift the fee burden from major sources to non-major or mobile sources where major sources otherwise subject to § 185 fees have already installed the latest emissions-reduction technology. Alternatively, EPA indicates that states could adopt emissions reduction-equivalent programs that achieve at least as much additional emissions reductions as would be expected from collection of the § 185 fees from major sources. Accordingly, CECONY strongly urges the Department to adopt a flexible regulatory program that would provide alternatives that would not involve imposition of a significant financial burden on major sources that have already installed the latest technology for controlling emissions. Absent such flexibility, program fees assessed against the Company would not yield significant reductions in emissions, and would unfairly burden CECONY customers.

    Executive Order No. 25 provides the Department and the Governor's Office the opportunity for a comprehensive review of Department regulations towards the goal of improving the regulatory program by eliminating unnecessary or burdensome requirements and concurrently providing relief to utilities and their customers in this difficult economy. The Company is pleased to have the opportunity to comment on this important regulatory reform effort initiated by the Governor. CECONY looks forward the Governor's Review Committee and Department responses to these comments and to working with both the Committee and Department in improving the Department's regulatory oversight.

    (Additional comments from this letter may be viewed under Environmental Remediation Regulations, Environmental Permits Regulations, and Solid & Hazardous Regulations)
  4. Michael T. Corbett - As an ex-member of Environmental Advocates of New York, I am deeply concerned about this organizations attempt to strengthen environmental regulations. While the goal of Governor Paterson's Executive Order #25 is to put polluters ahead of New Yorkers, I'd like to use this moment as an opportunity to point out a current regulation in need of repeal. New York State should ease restrictions on coal fired power plants. Thank you for your attention to this critical issue.
  5. Dr. William Knox - Dear Commissioner Grannis--Governor Paterson's Executive Order #25 is genuinely sinister, for it would allow polluters a much freer rein with regard to adding mercury to our environment. Let's strengthen environmental regulations and keep polluters from poisoning fish and even human babies!
  6. Part 248 - Please see the following document regarding 6 NYCRR Part 248, Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology for Heavy Duty Vehicles
    Assessment of Public Comments (20 kb PDF)
    Letter from Senator Nozzolio (146 kb PDF)
    Joint letter from New York Construction Materials Association, Contractors of America and Construction Industry (92 kb PDF)

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Environmental Permit Regulations

  1. Steven Bick, PhD, ACF, CF, Northeast Forests, LLC - If this is a sincere effort by the department to streamline regulations, you must immediately return the responsibility for routine stream crossing permits for timber harvesting activities to the NYS Forest Rangers. The rangers handled this duty very well in the past and developed strong working relationships with the industry, transferring many good ideas to them for protection of streambeds and related resources. The current situation is inefficient and unwieldy. In some cases, I believe it has led to non-compliance. The purposes of the department should be to protect water resources, rather than to look for excuses to hand out violations. The previous system with the rangers worked very well.
    The other thing this would accomplish is to free up the time of the ECO's for their traditional and very important duties.
  2. Steve A. Servies - stream crossing permits for timber harvesting are not uniform thru out the state. As a general rule, timber harvesting is not a large contributor to erosion and non-point source pollution. There appears to be local interpretation of environ. laws by people with biases against timber harvesting and industry in general.

    Supervisors that stall or block permit applications for personal reasons. Attempts to obtain a permit for 8 years and $40,000 later. And then pulling the permit application by me in utter frustration was followed up with phone calls and letters denying that DEC was the road block. Are you kidding me???
    Attempts to block timber harvesting in wetlands by local DEC officials - why?
  3. Michael P. Anselmo - I am writing to voice my disgust with the NYSDEC regarding environmental permit regulations. In addition to every other burden that NYS puts on small businesses that operate here, the ridiculous fees for permits, and now EXAMS continue to rise. It seems like the additional revenues that the state needs it just wants to derive from businesses that are abiding by the rules. Please know that like every other prudent businessman, I pass these rising costs along to my clients (The people who vote). Times are tough, and I have seen clients trying to make their own lawn applications. I ask you, who would you rather have applying pesticides, a homeowner with absolutely no training or knowledge, or someone who is properly licensed with 14 years of experience? Who would you say is the bigger problem for the environment?

    So keep it up, keep raising fees, etc, to make up for your complete lack of prudent money management. I, on the other hand, can not raise my fees so easily, and I actually run my operation as a BUSINESS, that turns a profit. I have no choice, I have to survive and feed a family.
  4. Jason Miranda - I am a forester working in region 4. right now when I have to cross a protected stream, just about every one in delaware County is Protected, I send the Standard activity permit to the Stamford office. They review it and then send it to the main office in Schenectady; Where it goes to the ECO office they then send it back to Stamford to the ECO that covers this area. This can take some time and most of the ECO, that I have talked to, do not really want to deal with these permits so they give them a low priority. I have had it take months to get my permit and usually I have to call the ECO to even set up a meeting. Before this, When the rangers issued permits it was a lot easier. Most of us in the forest industry that get the permits know how to properly cross a stream and we cross all stream as if they were protected and take necessary precautions to reduce sedimentation that gets into the streams. We, TH\he forest industry put so little sedimentation into the waters yet we are heavily regulated.
  5. Tim Tuttle, AD Bowman and Son Lumber Co., Inc. - I am writing regarding stream crossings. Before, in our area, we could only cross streams four months out of the year. Now, as I am aware, they have changed this to a general permit. We have not had to apply for one lately, and it is my opinion that if we are working off a general permit, that will work just fine.
  6. Fay Muir, President, Croton Watershed, Cleanwater Coalition, Inc. - The aim of Governor Paterson's Executive Order #25 is to streamline the process through which businesses and developers can obtain the necessary state permits to carry out their enterprises.
    It is significant that environmental protection is nowhere mentioned. For example, under #1 of the Resolution, the Regulatory and Review program calls for diminishing the burden of rules and paperwork requirements "while maintaining appropriate protections for the public health, safety and welfare and the conduct of business." And under #3, the Review Committee will conduct "outreach to interested parties and affected constituencies, to identify unsound and unduly burdensome or costly rules and paperwork that can be eliminated or reformed to accomplish the goals of the Order."

    The parties and constituencies that the Governor has in mind and that are supposedly affected by "unsound or unduly burdensome or costly rules" are clearly the developers and businesses. The opinions and advice of the environmental community are secondary, and effectively being ignored.

    Unfortunately, the intention of this Executive Order to eliminate the "unnecessary costs, burdens and inefficiencies" that are "inconsistent with the ongoing effort to reduce local property tax burdens" will produce the opposite result when applied to the SEQR process. The present seemingly slow process for obtaining development permits is not due to the SEQR process itself but has everything to do with suitable land for development no longer being available. The remaining land, in order to be suitable for housing or commerce, often requires an elaborate system of stormwater devices, the building of roads on steep slopes and the serious blasting of rock to level the ground. Delays are not caused by the permitting process; they are caused by the difficulties of construction on unsuitable terrain.

    Where land is buildable, a developer's profit margin causes a project to be proposed at a magnitude and scale that overwhelms the host community's resources and pattern of incremental development.

    Rather than reduce taxes, such construction foists the financial burden on maintaining elaborate stormwater systems and community impacts on the municipality or a homeowners' association - not on the developer. Any increase in tax revenue is rapidly offset by such expenditures.

    In addition, a development consisting of a single-family homes often entails the need to expand the school system including more teachers, the expansion of classroom and other facilities, and even the need for new buildings. The increase in school taxes is borne by the community, not the developer.

    If the developer were required to share some of the burden by means of Impact Fees, there would be far less opposition and the process would take less time. Unfortunately, there is a mistaken notion that Impact Fees are illegal in New York State. That notion is entirely erroneous. There is nothing to prevent the imposition of Impact Fees in New York State.

    There is no doubt that the SEQR process could be much improved and we offer some suggestions. 1996 was the most recent year that changes were made to SEQR!

    We believe that the following proposed changes will not lengthen the process. Instead, they will speed up the process by (1) making it more transparent; (2) hastening the gathering of information on which the lead agency bases its decision and (3) insuring that comments by the public are fully taken into account.

    (1) Scoping should be mandatory. Local residents who live close to a proposed development often have a unique familiarity with the area and can offer valuable information that others do not have. Furthermore at this early stage, it is important to know of any unique ecological features that may exist on the property - not discovered lat in the process and causing delays. Contrary to the prevailing conduct by developers, it would be to their advantage to allow well-certified experts, paid for by citizens' groups, to walk the property in search of any unusual ecological features and/or historical artifacts.

    (2) Comments by all the involved agencies should preferably be available to the lead agency and the public prior to the issuance the DEIS, and certainly prior to the lead agency issuing its Findings. In order to perform due diligence, the lead agency should have all pertinent information available before making its final decision. For example, we have often encountered cases where the lead agency has issued its Findings prior to receiving the Stormwater Pollution Prevention Plan (SPPP), a vital component of any development plan. Another recent example is Patterson Crossing in Putnam County, a huge project for which the lead agency issued SEQRA findings in July 2008. Now, a year and a half later substantive review of the project's water supply and sewage disposal of (tens of thousands of gallons) is just beginning as part of DEC's permitting process.

    (3) The public gets seriously involved in SEQR at the late stage of commenting on the DEIS which, as we have pointed out, does not necessarily include all important information. Comments by the public are mostly pertinent and well-researched, and add valuable questions and information to the DEIS. The developer responds in the FEIS. Often those responses skirt the more searching comments or do not answer them at all. Following the FEIS, the public has only a minimal opportunity to respond to frivolous or inaccurate answers. Sometimes, a lawsuit is the only response - something to be avoided if at all possible, and a sure way to drag out the permitting process. We strongly urge, therefore, that the public be given the opportunity to respond to the developer's FEIS narrative which often are non-responsive to the public's DEIS comments. In our opinion, this will insure a more rapid, more satisfactory and more rapid process.

    Thank you for this opportunity to comment.
  7. Sue Murphy - I would like to state my concern for the way residents are notified of permit applications. Right now the applicant is instructed to put an ad in the classifieds to notify people. This is insufficient in this day of electronics. No one is going to see an ad for one day in a newspaper. The residents that are directly affected need to be notified by registered mail. This is the way local governments handle things and this is what should be done by the DEC. Please consider changing the process you use today. Thanks.
  8. Mirabelli - The method of notifying impacted residents is severely insufficient. Currently the applicant is required to place an advertisement in the Classified section of a local newspaper. WHO HAS TIME TO READ CLASSIFIED ADS??!! Also, DEC posts actions on their website. Believe it or not, not everyone has internet service. Especially in more rural counties. I live in the Town of Taghkanic where only a dozen homes received high speed internet just last November. That is the only reason I am sending you this message today.

    APPLICANTS MUST BE REQUIRED TO SEND REGISTERED OR CERTIFIED LETTERS TO IMPACTED RESIDENTS. THIS IS WHAT IS REQUIRED OF THE DEPARTMENT OF TRANSPORTATION. DEC SHOULD DO THE SAME.
  9. Joseph Celentano, P.E. President, Gibbons, Esposito & Boyce Engineers, P.C. HiRise Engineering, P.C. - Gibbons, Esposito & Boyce, Engineers, P.C. (GEB) is pleased to have this opportunity to present our ideas for the reduction of unnecessary, burdensome and excessive costs and delays associated with complying with the current regulations contained in Title 6.

    Based on our experience in assisting clients obtain permits, there are extensive delays, costs and at times loss of funding incurred by the applicant. It appears that the delays are being caused by a lack of understanding of the required application materials, the long periods of waiting for comments to be provided as well as the review and final approval of the revised applications. This view is shared by local municipalities and other consulting firms that we work with.

    To promote communication and minimize delays for both applicants and the NYSDEC, we propose that periodic training sessions be held. On a semi-annual or annual basis a workshop could be held so that key members of the NYSDEC local region could summarize the requirements for the permit applications, changes and the issues that are critical to each group reviewing the permit applications. Applicants and their agents would be provided an opportunity to learn and understand the regulations, ask questions and clarify issues. Although a workshop would divert personnel from other duties, we believe that it would greatly expedite the review and award process, as well as save time and money.

    GEB has past experience in coordinating workshops and would be happy to assist the NYSDEC in creating a training program that will benefit all parties involved in the permitting process.
  10. Mitchell L. Bush, President, New York State Bluestone Association -
    Uniform Procedures Regulations (SEQR, Part 621):
    The processing of permits can be an important component of a Bluestone operator's determination for a quarry expansion or opening. Due to the current complexity and increasing demands placed on Bluestone operators upon and during the submission of mined land reclamation permits, has caused time frames for action on mined land reclamation permits to increase steadily. The principle of one more detail being required for each permit application and cost to respond has been a deterrent for continued submission of applications.

    Contained within the Part 621 and Article 23, Title 27 the procedures for notification of local municipalities and other governing entities are specifically spelled out. The further notification and passing of information to other entities is not permitted or required, yet this occurs on a regular basis. Notification of local Soil Conservation Districts, county environmental or planning commissions, along with quasi-governmental groups such as Susquehanna River and Upper Delaware River Commissions should only occur within the framework allowed by Part 621 and Article 23, Title 27.

    State Environmental Quality Review (SEQR, Part 617):
    SEQR is the regulatory vehicle to allow for Public Comment about any proposed mining development within the state. Comments from individuals and groups are allowed at this time concerning the project and the impacts to the environment and local concerns. Where the difficulty arises is when these quasi-governmental groups (Susquehanna River Commission, Upper Delaware River Commission, local or state wide Scenic By-Way Committees and the New York City Department of Environmental Protection (DEP), comments are given more weight than responding individuals. Part 617 does not give additional weight to groups versus individuals and should not incorporate comments from these groups as being solely a matter of fact and having greater importance than comments from individuals.

    Office of Parks, Recreation and Historic Preservation (OPRHP):
    Even though OPRHP is not a DEC entity, it works closely with Division of Environmental Permits to determine the proposed mine site sensitivity to either historic or prehistoric artifacts. This close relationship leads to the Division of Environmental Permits to abrogate its' responsibility to determine whether or not a site is adjacent to or subject a potential to effect a historic or prehistoric site. The procedure is to determine the closeness of the proposed site to know historic or prehistoric sites. Currently if the site is either in or anywhere near a know site then the applicant is required to provide justification to OPRHP as to why the site is not going to affect a protected site. This is usually totally unnecessary because most Bluestone mine sites due to topography, remote locations preclude their use as either historic or prehistoric habitation locations. A much better system is needed other than the circle and square method which is currently used. The Division of Environmental Permits needs the authority to make decisions so as to reduce cost and time necessary to complete permits.

    Additionally, the procedure of determining the closeness of the site to endangered or threatened wildlife or fauna is treated the same as the determination of OPRHP sites. As with the OPRHP sites a better system is needed to resolve any conflicts other than the instantaneous requirement to conduct either a Phase I Archeological Survey or Endangered Animal Survey. Typically, even the most minimal determination of potential impacts to these resources by appropriate professional can cost in excess of $4,000.00.

    (Additional comments from this letter may be viewed under Mineral Resources Regulations and Water Resources Regulations.)
  11. Tom Kane, Forester, Wagner Lumber Company - As many of us are aware, there is a different process for obtaining a stream crossing permit in each of the DEC Regions. I work primarily in Region 5 and Region 6. I was disappointed to read that many people consider the process in Region 5 to be acceptable.

    I recently read in a forwarded email that the process is easy and takes less than 2 weeks to obtain a permit. I don't consider 2 weeks a short time period. When a tract of timber is purchased, it is sometimes desirable to move onto and cut that tract as soon as possible. A 2 week time frame means that a logger, or an entire logging crew may have to sit for 2 weeks before they being working. Essentially they are forced into a 2 week unpaid vacation. In a difficult economy this makes matters more difficult for those involved. Additionally, the 2 week process is in reality much longer than 2 weeks. After the timber is purchased, the stream crossing permit involves: 1) find out if the stream is protected (class C(t)) or higher - not a difficult process, but it takes a day or more since most of us do not have computers in the woods, 2) call the Region Office and ask them to send the application (since it is not easily found online) - a couple more days at least, 3) return to the site and take pictures - at least 1 usually several more days with a busy schedule, 4) fillout and send the application to the landowner (often absentee) - it could be several days before you are able to take another office day to do so, and 5) have the landowner sign and return the application - at least 1 more week. In all the 2 week process rarely takes less than a month or 6 weeks to complete.

    Region 6 has a much easier and quicker process. Step 1: Call the Conservation Officer Directly (Officer James Kerns deserves recognition) - a couple minutes spend on the phone. Step 2: pick a day of your convieience to meet with the officer at the location - often the next day. Step 3: meet to the officer to sign and obtain the permit. It is a quick 1 phone call and 2 days.

    I would be happy to elaborate on any of my points if you desire.
  12. Walter F. Matystik, M.E.,J.D, Asst. Provost for Faculty Research, Computing, Policy & Planning;Adjunct Professor of Civil & Environmental Engineering; Adjunct Professor of Environmental Law, Manhattan College - I am submitting these comments pursuant to Executive Order No. 25 wherein the State and New York State Department of Environmental Conservation in particular invited comments from interested parties to suggest appropriate remedies that the agency may undertake to eliminate or amend regulations that are unnecessary, unbalanced, unwise, duplicative or unduly burdensome.

    The policy and regulations detailed below are presently unbalanced and unwise in that they do not fulfill the goals envisioned by the People of the State of New York when environmental justice was first addressed in March, 2003. As presently structured, they also pose potential burdensome costs by letting major projects - otherwise subject to SEQRA - escape from undertaking an environmental justice impact analysis unless and until a permit is required under a limited list of projects. By that time, projects may already be substantially completed rendering an impact assessment related to an operating permit essentially moot. Additionally, the list of permitted activities in CP-29 does not fully encompass all of the situations under which minority and/or low income environmental justice communities can be detrimentally impacted so the policy and implementing regulations are also unbalanced.

    Commissioner Policy 29, Environmental Justice and Permitting and Part 617 State Environmental Quality Review
    (Related References: New York State Environmental Conservation Law §1-0101; New York State Environmental Conservation Law §3-0301; New York State Environmental Conservation Law, article 8; New York State Environmental Conservation Law, article 70; New York State Administrative Procedure Act, article 3; Sections 616, 617, 621 and 624 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York)

    1. New York State Department of Environmental Conservation DEC Policy
    Issuing Authority: Commissioner Erin M. Crotty; Date Issued: 3/19/03; Latest Date Revised: 3/19/03
    First of all, on information and belief (and supported by the above listed "latest date revised"), the periodic review of CP-29 has not been undertaken.
    "...This policy shall be reviewed at least 18 months from the effective date and revised, as necessary, to consider the policy's applicability to various DEC Programs, incorporate evolving information on environmental justice and reflect the best available environmental protection information and resources.

    Comment #1: NYS DEC should undertake the review of CP-29 envisioned and required under the policy.
    Rationale: It's been almost seven years since CP-29 was issued and a review is overdue.

    2. An environmental justice analysis is required solely when an applicant is seeking a permit from the State Department of Environmental Conservation, pursuant to DEC policy guidelines CP-29. Neither SEQRA nor CEQR require an agency to perform an environmental justice analysis as part of the environmental review of an action.
    A. Applicability.
    1. Except as provided for below, the policy shall apply to applications for major projects and major modifications for the permits authorized by the following sections of the Environmental Conservation Law:
    1. titles 7 and 8 of article 17, state pollutant discharge elimination system (SPDES) (implemented by 6 NYCRR Part 750 et seq.);
    2. article 19, air pollution control (implemented by 6 NYCRR Part 201 et seq.);
    3. title 7 of article 27, solid waste management (implemented by 6 NYCRR Part 360): including minor modifications involving any tonnage increases beyond the approved design capacity and minor modifications involving an increase in the amount of putrescible solid waste beyond the amount that has already been approved in the existing permit;
    4. title 9 of article 27, industrial hazardous waste management (implemented by 6 NYCRR Part 373); and
    5. title 11 of article 27, siting of industrial hazardous waste facilities (implemented by 6 NYCRR Part 361).
    Major project means any action requiring a permit identified in section 621.2 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 621.2), which is not specifically defined as minor.

    Comment #2: Amend NYCRR 617.9 (b)(5) Environmental impact statement content as follows:
    Add new subsection NYCRR 617.9 (b)(5)(ix): "identify whether the proposed action is in or near a potential environmental justice area(s) and determine whether potential adverse environmental impacts related to the proposed action are likely to affect a potential environmental justice area(s)." [and supplement this with appropriate revisions to CP-29 to conform and Part 617 State Environmental Quality Review, as appropriate - e.g. definitions, etc.]
    Rationale: This proposed SEQRA amendment will ensure that environmental justice issues are identified and addressed for all projects for which require preparation of an EIS is required pursuant to SEQRA. Limiting the EJ policy to the above cited list of permitted activities does not comport with DEC's statement that CP-29 "...contains groundbreaking elements which will lead the nation in environmental justice...". For example, the SEQRA process for the almost $3 Billion Croton Water Treatment Plant - being built in an environmental justice community i.e a minority or low-income community that may bear a disproportionate share of the negative environmental consequences- did not mandate that NYC DEP undertake an environmental justice analysis and mitigate such identified impacts.

    Furthermore, this proposal comports with CP-29 stated intent to "... encourage[s] DEC efforts to implement other programs, policies, regulations, legislative proposals and activities related to environmental justice...."

    Thank you for the opportunity to submit these comments and for your consideration of them as DEC's policy and regulatory agenda is shaped. Should I be able to assist in any way, do not hesitate to contact me.
  13. Stephen M. Rosario, New York State Chemical Alliance - The NYS Chemical Alliance is pleased to submit the following comment on permitting in response to DEC's request for public input under Executive Order No. 25 on "existing environmental regulations that impose unnecessary, burdensome or excessive costs, paperwork, reporting or other requirements" on regulated parties:
    Permitting
    Issue: Mandates not supported in regulation
    A NYSCA member company was mandated to conduct a study of a non-regulated substance as a condition to receive a renewal of an existing SPDES permit and spent over $50,000 in2008-2009 in a year-long analytical study for which the company received no factual basis from DEC to justify the work. After having spent the time and money conducting the study, the company has further received no response from DEC on the data it submitted.

    Recommendation: The DEC should not be allowed to mandate expensive and time-consuming monitoring studies as a permit requirement for substances which are not currently regulated in order to receive a SPDES permit.

    We appreciate this opportunity to communicate with the DEC and look forward to DEC's response to the issues raised not only by the members of our association, but other business entities as well.

    (Additional comment under Environmental Regulation)
  14. Christopher Squeri, New York Marine Trades Association - The Empire State Marine Trades Association (ESMTA) is the leading voice of the marine industry in New York, promoting boating access and the safe and proper operation of boats, marine accessories and related facilities.

    The ESMTA is comprised of seven regional associations: Association of Marine Industries; New York Marine Trades Association; Hudson Valley Marine Trades Association; Eastern New York Marine Trades Association; Boating Industries Association; the Rochester Area Marine Trades Association and, the Marine Trades Association of Western New York. The ESMTA has over 400 members.

    Boating is vital to recreational and economic activity statewide. A study by New York Sea Grant showed that boaters spent $2.4 billion in 2003 in pursuit of this "leisure" activity. Obviously, boating is an important part of the economies of coastal communities and of the state.

    Boating is dependent on the maintenance of safe navigation depths in both public and private boating areas. This requires periodic dredging to relocate materials deposited in these areas. Unfortunately, the dredging needed to maintain channels and boating areas is not being done, resulting in both lost recreational opportunities and economic losses. In the Sea Grant study, the majority of registered boaters identified dredging as the most important boating related issue.

    To help resolve the existing issues associated with dredging, ESMTA urges that the New York State Department of Environmental Conservation to reform the regulations and dredging policies of the state in order to promote a more comprehensive and effective process for managing dredging activities.

    ESMTA recommends that:
    DEC coordinate with other state and federal agencies to maximize the existing dredging windows to ensure necessary projects can be completed in a timely manner.

    DEC, in conjunction with the local municipalities, must identify and designate practical, adequate and accessible dredged material relocation sites, and making them available to public and private applicants.

    DEC establish a single permitting system, including application and review, for dredging projects incorporating federal, state and local interests and expedited permitting procedures and permit review and processing for water dependent commercial businesses. Agency evaluation of dredging permits
    must recognize the value of these businesses to the state economy, local communities and their specialized needs.

    DEC should work with appropriate agencies to develop a consistent funding stream for public dredging projects-similar to that of the Dedicated Highway and Bridge Trust Fund for roads and bridges-to assist with financing these projects on an ongoing basis at the state, county and local levels.

    DEC identify options for alleviating the severe financial burden placed on water dependent businesses associated with sediment testing for dredging projects. Costs of testing should be borne or shared by the agency requesting same. Commercial establishments be allowed to establish and maintain adequate depths to accommodate vessels.

    DEC initiate a study to assemble and synthesize data on dredging activities in the waters of New York State. Information, including but not limited to the location, volume, sponsors, type and extent of past public and private dredging projects should be collected and analyzed to quantify the scope of dredging activities and provide the baseline information necessary to begin developing sound management plans and regulatory initiatives for dredging activities. This will also establish a base line for non-nuisance projects that will allow for maintenance dredging projects, and exempting same from repetitive or unnecessary reviews.

    DEC resources and habitat evaluation efforts focus on adequately documenting the presence or absence of natural and living resources and habitats of concern in specific areas where dredging is required rather than placing the onus of research on agencies, businesses or individuals.

    ESMTA believes these actions are long overdue and needed to ensure New Yorkers can continue to enjoy access to our state's waters. We would appreciate having the opportunity to discuss these important issues in the context of the DEC reevaluating its existing regulations as they pertain to permitting and coastal resource development and protection.
  15. Louis Grignon, Sag Harbor Yacht Yard - The Empire State Marine Trades Association (ESMTA) is the leading voice of the marine industry in New York, promoting boating access and the safe and proper operation of boats, marine accessories and related facilities. The ESMTA is comprised of seven regional associations: Association of Marine Industries; New York Marine Trades Association; Hudson Valley Marine Trades Association; Eastern New York Marine Trades Association; Boating Industries Association; the Rochester Area Marine Trades Association and, the Marine Trades Association of Western New York. The ESMTA has over 400 members.

    Boating is vital to recreational and economic activity statewide. A study by New York Sea Grant showed that boaters spent $2.4 billion in 2003 in pursuit of this "leisure" activity. Obviously, boating is an important part of the economies of coastal communities and of the state. Boating is dependent on the maintenance of safe navigation depths in both public and private boating areas. This requires periodic dredging to relocate materials deposited in these areas. Unfortunately, the dredging needed to maintain channels and boating areas is not being done, resulting in both lost recreational opportunities and economic losses. In the Sea Grant study, the majority of registered boaters identified dredging as the most important boating related issue. To help resolve the existing issues associated with dredging, ESMTA urges that the New York State Department of Environmental Conservation to reform the regulations and dredging policies of the state in order to promote a more comprehensive and effective process for managing dredging activities. ESMTA recommends that:
    1. DEC coordinate with other state and federal agencies to maximize the existing dredging windows to ensure necessary projects can be completed in a timely manner.
    2. DEC, in conjunction with the local municipalities, must identify and designate practical, adequate and accessible dredged material relocation sites, and making them available to public and private applicants.
    3. DEC establish a single permitting system, including application and review, for dredging projects incorporating federal, state and local interests and expedited permitting procedures and permit review and processing for water dependent commercial businesses. Agency evaluation of dredging permits must recognize the value of these businesses to the state economy, local communities and their specialized needs.
    4. DEC should work with appropriate agencies to develop a consistent funding stream for public dredging projects-similar to that of the Dedicated Highway and Bridge Trust Fund for roads and bridges-to assist with financing these projects on an ongoing basis at the state, county and local levels.
    5. DEC identify options for alleviating the severe financial burden placed on water dependent businesses associated with sediment testing for dredging projects. Costs of testing should be borne or shared by the agency requesting same.
    6. Commercial establishments be allowed to establish and maintain adequate deths to accommodate vessels.
    7. DEC initiate a study to assemble and synthesize data on dredging activities in the waters of New York Sate. Information, including but not limited to the location, volume, sponsors, type and extent of past public and private dredging projects should be collected and analyzed to quantify the scope of dredging activities and provide the baseline information necessary to begin developing sound management plans and regulatory initiatives for dredging activities. This will also establish a base line for non-nuisance projects that will allow for maintenance dredging projects, and exempting same from repetitive or unnecessary reviews.
    8. DEC resources and habitat evaluation efforts focus on adequately documenting the presence or absence of natural and living resources and habitats of concern in specific areas where dredging is required rather than placing the onus of research on agencies, businesses or individuals. ESTA believes these actions are long overdue and needed to ensure New Yorkers can continue to enjoy access to our state's waters.

    We would appreciate having the opportunity to discuss these important issues in the context of the DEC reevaluating its existing regulations as they pertain to permitting and coastal resource development and protection.
  16. David Hamling, New York Construction Materials Association - The New York Construction Materials Association, Inc. (NYMaterials) is a statewide not-for-profit trade association representing the business and regulatory interests of companies involved in the production of construction aggregates (crushed stone, sand and gravel), ready mixed concrete and hot mix asphalt. NYMaterials' members have operations in all parts of New York State and range in size from small "Mom and Pop" operations to middle sized, family-owned companies to large multinational corporations. Regardless of size or annual production, our members operations are subject to many of NYSDEC's regulatory programs. In the spirit of reform suggested in Governor Paterson's Executive Order #25, NYMaterials offers two suggestions that would remove severe burdens on New York State businesses without compromising any environmental protections offered under existing rules.

    Amend the Uniform Procedures Act and Regulations
    The Uniform Procedures Act is intended to offer protections to project applicants so agency reviews cannot sit idly until they die of attrition. However, the statutory language does not extend to the Commissioner's responsibility to make decisions within specified time frames. NYMaterials recommends that Interim Decisions of the Commissioner and Final Decisions of the Commissioner be mandatory within 60 days of the Administrative Law Judge's findings.

    Abolish the Division of Environmental Permits "Permit Management System"
    The Permit Management System was initially created in the 1980's to offer permit applicants "One Stop Shopping" for all NYSDEC permit programs and charged the Division of Environmental Permits (DEP formerly Division of Regulatory Affairs) with its implementation. Initially, the nontechnical staff of DEP was responsible for insuring all appropriate forms and documents were submitted for each permit program, then the applications were forwarded to the technical programs. In the ensuing 20+ years DEP created its own internal bureaucracy and assumed the role of decision maker, including determinations under the State Environmental Quality Review Act and final permitting decisions. Making matters worse, DEP Environmental Analysts positions are nontechnical, meaning people with little or no formal training
    are often usurping the decisions of the trained technical staff from technical programs. It has also allowed personal bias to creep into the otherwise purely technical review of applications.

    Prior to the Permit Management System, permit applications went directly to the technical staff within the DEC permitting programs. This allowed appropriate technical staff to immediately begin the review of the proposal and to make environmentally sound decisions unfettered by bias or outside influence. Elimination of this outdated and bloated system will immediately streamline DEC permit application processing without any compromise to the level of review, level of environmental protection or the potential for public input. It simply puts the right documents into the right hands without another layer of needless bureaucracy.

    Adoption of these two suggestions will provide immediate benefits to businesses trying to survive in New York State. Notably, both of these ideas will reduce the costs of doing business without compromising environmental protections, which is the very purpose of Executive Order #25. The current state of application processing and decision-making imposes hardships on all companies doing business in New York. We firmly believe the suggestions provided herein will provide tangible relief to the regulated community without any decrease in environmental protection.
  17. Randolph Price, Vice President Environment, Health & Safety, Consolidated Edison Company of New York, Inc.- Consolidated Edison Company of New York, Inc. ("CECONY" or the "Company") welcomes the opportunity to provide comments to the New York State Department of Environmental Conservation (the "Department") identifying "existing [Department] regulations that the Company believes impose unnecessary, burdensome or excessive costs, paperwork, reporting or other requirements." These comments are provided pursuant to Governor Paterson's Executive Order No. 25, issued August 6, 2009, and in response to the Department's public notice in the December 16, 2009 Environmental Notice Bulletin ("ENB"). These comments are also being provided to each of the e-mail links listed in the ENB Notice with respect to the specified regulatory topics identified below.

    CECONY is a subsidiary of Consolidated Edison, Inc., one of the nation's largest investor-owned energy companies. The Company, a regulated utility under the New York Transportation Corporations Law, provides electric, gas and steam service to more than three million customers in New York City and Westchester County. Overall, CECONY serves a population of approximately nine million people throughout a service territory covering 660 square miles.

    The Company is a recognized national leader in its commitment to environmental excellence, and has spent significant resources in achieving and maintaining the high quality of its environmental compliance programs. In 2008, CECONY's environment, health and safety expenditures were more than $370 million. CECONY will, of course, continue this commitment to environmental excellence, but as a regulated utility it also has an obligation to its customers to achieve environmental excellence at the lowest practical cost. Consequently, the Company is pleased to draw the Department's attention to areas that have the potential to improve the Department's regulatory processes by effectuating limited regulatory reforms that will reduce costs faced by energy consumers in the state and the state's own oversight costs without significant adverse environmental impact.

    The Company's comments on specific regulatory programs, set forth in detail below, are organized within four of the distinct regulatory categories outlined in the Department's ENB Notice, including (i) air regulations; (ii) environmental permit regulations; (iii) environmental remediation regulations; and (iv) solid and hazardous materials regulations. Where possible, and in accordance with the ENB Notice, the Company's comments make an effort to "suggest appropriate remedies that the agency may undertake to eliminate or amend regulations that are unnecessary, unbalanced, unwise, duplicative or unduly burdensome."

    2. ENVIRONMENTAL PERMIT REGULATIONS.
    Petroleum Bulk Storage Code. In July 2009, the Department issued an enforcement discretion directive (see ), which exempts transformers from Petroleum Bulk Storage Code registration and inspection requirements. The Department has indicated that it intends to promulgate regulations that would provide requirements for transformers. CECONY prefers and encourages the Department to move forward with the development of a regulatory program that establishes exemption criteria, rather than rely on enforcement discretion. Establishment of a regulatory program would also mandate delegated municipalities or agencies to abide by the regulatory criteria and avoid potential confusion over the application of Department enforcement discretion.

    (Additional comments from this letter may be viewed under Environmental Remediation Regulations, Air Regulations, and Solid & Hazardous Regulations)
  18. Edward Parthe- Long Island Marine Contractors Association - The Long Island Marine Contractors Association (LIMCA) was organized in the 1970's by marine construction contractors and related marine business stakeholders. The primary purpose of LIMCA is to present to government bodies commentary on regulations that affect the permitting and construction of shoreline structures.

    The following comments on NSYDEC Tidal Wetlands regulations are submitted in response to the Executive Order 25 solicitation of comments by stakeholders on the adverse impact of specific regulations. Although we just learned of this solicitation on February 15, 2010 and did not have the time to prepare the kind of in-depth response we would have liked, we felt it was important to get something on the record by the February 16, 2010 deadline.

    A. Two specific comments are made in this commentary. At the heart of each comment is the persistent failure of the NYSDEC to properly apply the Part 661 Tidal Wetlands Regulations, such failures being specifically identified in the following two paragraphs.

    1. The Region One Tidal Wetlands regulatory staff refuses to implement the clear intent of 6 NYCRR Section 661.9(b)(1)(i), Standards for permits on any tidal wetland. Subparagraph (b)(1)(i) requires the Department to take "into account the social and economic benefits which may be derived from the proposed activity".

    2. The Region One Tidal Wetlands regulatory staff refuses to implement the clear intent of 6 NYCRR Section 661.14, Determination that lands do not involve littoral zone or coastal shoals, bars or flats. Section 661.14 requires the Department to distinguish between such lands that have high productivity and those lands that have little or no biological productivity associated with the purpose of the Tidal Wetlands Act.

    B. The first comment concerns the erratic and inconsistent permitting standards and permit conditions for replacement bulkheads on the man-made canals on the South Shore of Long Island. Over the years, without any change in the Part 661 regulations, or any change in any written regulatory guidelines, new interpretations of the Part 661 regulations can and do spring up without any notice or due process. Such erratic and inconsistent permitting standards and permit conditions place undue economic hardships on applicants and cause costly delays in the permit process.

    These man-made canals are hardly pristine natural tidal wetlands. The bottoms of these long narrow canal waterways are usually filled with anoxic sludge from the street drain pipes installed by the local municipality. The water quality of these waterways is usually quite poor. Most of the canals in Nassau County and Western Suffolk are completely bulkheaded. It is rare to find any wetland grasses in completely bulkheaded canals. Virtually none of these canals from the day they were first constructed would meet the NYS legislative criteria for being a wetland worth being protected by environmental laws.

    In the following paragraphs is a discussion of a DEC rejected permit application for a bulkhead project on a man-made canal in southwestern Suffolk County. The rejection by the Region One staff of this application illustrates the Region One regulatory staff's refusal to apply the Part 661 balancing tests to ensure an equitable decision.

    The particular application being discussed is representative of the problems encountered with most permit applications of this type, which are quite numerous. The cumulative impact of these DEC actions is costing residents money and time. These DEC actions are an inefficient use of regulatory staff time for no measurable environmental benefit.

    1. In a TW permit application made about two years ago, one part of the application was for the closing off and filling in of a boat slip on an extremely small lot. For at least 25 years these applications were always granted. In this case the DEC required that part of the boat slip and adjacent land be maintained or converted into a tidal littoral wetland at an added expense of $40,000 to the property owner. The DEC in its ruling did not provide any estimate of the benefit that would result from this enlargement of the boundaries of the canal.

    It is unfathomable how this little bit of extension of the canal into the lot is going to be beneficial to the environment. It is hypocritical of the DEC to regulate existing canals as important wetlands that need the full panoply of protection under the environmental laws
    while simultaneously opposing the construction of new canals on environmental grounds.

    The Part 661.14 regulation requires the DEC to distinguish between pristine wetlands and non-pristine wetlands, commonly described as wet deserts or wet landfills. The DEC is not following the Part 661 regulations, which require a balancing of the equities when making a decision on the application to fill in the boat slip. This DEC decision on the subject application is arbitrary and capricious.

    2. For the same application, in an all to typical abuse of regulatory authority, the DEC demanded partial demolition of the boat house that covered the boat slip. Section 661.10(a), Existing land use and development, states that "No provision of this Part shall be deemed to prohibit or require the removal of ... any structure, lawfully in existence on August 20, 1977". The subject boat house has been in existence since about 1925. It is troublesome that the Region One DEC ignores even the explicit restrictions in the Part 661 regulations.

    3. For this same bulkhead project, another part of the application requested the renewal of a prior DEC permit to replace an existing functional bulkhead. Pursuant to the prior permit a section of the old bulkhead had been removed, and the bank slumped into the creek. In this section of washed out bank, the DEC, instead of reissuing the permit, demanded that the bank area behind the old bulkhead be planted with wetland grasses.

    4. As a tidal wetlands consultant, I was a member of the Society of Wetland scientists, and a member of the Association of State Wetland Managers. The soils in the subject bank are not suitable for the planting of wetland grasses. No competent wetland regulatory manager would expect that there would be any success from such an effort to plant wetland grasses on this site. Apparently the DEC staff expertise on the planting of TW wetland grasses is limited to a cookie cutter mentality of making the demand to plant grass whenever they see a bare spot of land subject to tidal flooding.

    5. For the subject application the Department of State (DOS) promptly issued a Coastal Consistency Certification for the above-cited TW application as submitted. The basis for the issuance of the DOS Certification was compliance with many regulations, including the DEC regulations for Tidal Wetlands and Stream Protection. The applicant for the subject permit requested the DEC to re-evaluate its denial in light of the DOS approval of the subject application. The response of the Region One DEC regulatory staff is that they "don't care what the DOS says."

    The situation is that two different New York State Agencies charged with the regulatory administration of the same two laws have different interpretations. The DOS Coastal Management Plan is a guidance document that the DEC is required to use when making a decision on TW applications.

    This letter may be construed as a petition to the Commissioner to directly intervene in the decision-making by the Region One TW resource managers who have scant understanding that their job is to administer a law and they are not to use their regulatory authority to advance their own personal environmental philosophy.

    6. The claim by the DEC, in the subject application for a TW permit, of jurisdictional authority over the exposed bank illustrates two ancillary regulatory issues. The subject canal bank had been protected by a lawful bulkhead that is also an August 20, 1977 jurisdictional boundary.

    7. One of the ancillary issues is the meaning of the word "functional". The Section 661.5, Use guidelines, for Use number 22 states, "In-kind and in-place replacement of existing functional bulkheads and similar structures is Gcp" (Generally Compatible Use--Permit Required). Of course, no one replaces functional bulkheads. Homeowners notice that their bulkhead is leaking soil. After the homeowner scrapes the money together, they contract for a replacement bulkhead.

    8. If the homeowner is lucky, he will be issued a replacement bulkhead permit. The unlucky applicants will be the object of a DEC land grab, because their bulkhead was leaking, so it isn't functional. The DEC will want the homeowner to move the bulkhead landward. If this means that the foundation of an existing building may be undermined and the building fall into the canal, the DEC maintains that is not their concern.

    Under some zoning codes the reduction in upland lot size means the lot now has a non-conforming area. In some cases this can potentially mean the homeowner in the future may have a half million to a million dollar loss in property value, with a zero dollar benefit to the environment.

    9. When the DEC does not apply 6 NYCRR Section 661.9(b)(1)(i), Standards for permits on any tidal wetland, to the determination of the location of replacement bulkheads, then the DEC is not applying the requirement to take "into account the social and economic benefits which may be derived from the proposed activity".

    10. The second ancillary issue is the DEC attempts to move permanent jurisdictional boundary lines. A functional bulkhead on August 20, 1977 is the location of a permanent jurisdictional boundary line. The homeowner may be subject to years of delay and thousands of dollars in permitting costs to fight the DEC's attempts to grab a few feet of the homeowner's backyard, because there was erosion on the upland side of the homeowner's bulkhead. The eroded canal bank has no measurable environmental value.

    11. The proposed solution to this permitting problem for replacement bulkheads is for the DEC Commissioner to issue a General Permit for the replacement of bulkheads on bulkheaded canals. In the past General Permits were issued for replacement bulkheads after a destructive hurricane. These emergency permits worked quite well.

    12. A non-solution would be for Albany to admonish the Region One DEC regulatory staff to be more reasonable in the issuance of permits. This was tried in the past, and it only worked for a short period of time.

    13. If the Commissioner decides to issue a General Permit for replacement bulkheads, I would like to review it before it is issued.

    14. One of the economic implications of a General Permit for replacement bulkheads for thousands of coastal property owners is that they will not have to expend money to obtain a DEC permit that is a duplicate of the permit issued by the local municipality.

    15. The state budget implications a General Permit is that the environmental funding used for issuing replacement bulkhead permits can be freed up for more environmentally productive uses.

    16. From a wider viewpoint, what is the environmental benefit resulting from thirty years of NYS expenditures for regulating all shoreline structures, which are already regulated by local municipalities? The hard clam, scallops and other fisheries have experienced a severe decline while the DEC was rigorously administering its interpretation of the regulatory purview the Tidal Wetlands Act.

    17. The DEC's focus on all structures misses the regulatory point of the TW Act, which is to protect vegetated wetlands and to ensure the flow of nutrients from those wetlands to the bays. In this time of a State budget crisis, the State could do what the Army Corps of Engineers does, which is to issue General Permits for those activities that do not warrant individual permit review. There are many General Permits, besides the one for replacement bulkheads, that can be issued.

    C. The second comment concerns the DEC requirement for dredging windows. The DEC decided that dredging can only take place during a window that lasts only a few months of the year. There are socio-economic costs associated with dredging windows.

    1. If a storm closes up a waterway, it may be 10 months before a dredge can remove the shoal in a navigational channel. In the meantime, a boater could lose his life in a grounding.

    2. A lot of expensive dredging equipment can only be used a few months of the year. This drives up the cost for customers who require dredging.

    3. Dredging in the winter is more expensive than dredging in the summer, which is a prohibited dredging time.

    4. Marinas are a water dependent activity that, pursuant to the State's Coastal Zone Management (CZM) Act, should be given preference for a waterfront location. Marinas are the gateway to coastal waters for inland property owners who need access to navigable waters. If the marina goes out of business because it can't get a timely permit to dredge its navigation channel, then the DEC is frustrating the DOS in meeting the goals of the State's CZM program.

    5. There is a credibility problem associated with requiring dredging windows. Years ago there was an all day environmental conference in Point Lookout, Long Island, on dredging windows. The expert consensus is that navigational dredging projects are too infrequent and too small to have the hypothesized adverse environmental impact.

    6. The proposed solution is for the Commissioner to order the tidal wetlands regulators to stop including dredging windows in dredging permits.

    D. There are other serious problems with the administration of the Tidal Wetlands Act. The solution of the problems identified in the above commentary will be a promising start to implementing further measures to reform the administration of the Tidal Wetlands Act. Such measures will not diminish wetland protection while simultaneously reducing the economic impact on homeowners and reducing the expenditure of State revenues.
  19. Clete Galasso, President Lighthouse Marine Distributors - Boating is very important recreational and economic activity statewide. A recent study by New York Sea Grant showed that boaters spent $2.4 billion in 2003 in pursuit of this "leisure" activity. Obviously, boating is a vital part of the economies of coastal communities and of the state.

    Boating is dependent on the maintenance of safe navigation depths in both public and private boating areas. This requires periodic dredging to relocate materials deposited in these areas. Unfortunately, the dredging needed to maintain channels and boating areas is not being done, resulting in both lost recreational opportunities and economic losses. In the Sea Grant study, the majority of registered boaters identified dredging as the most important boating related issue.

    To help resolve the existing issues associated with dredging, the Marine Industries of Long Island formally requests the New York State D.E.C. to add the following priority actions as a refinement to the current NYS DEC dredging policy.

    These action items provide a framework for a more comprehensive and equitable process for managing dredging activities. The ultimate goal is build on these priority items to develop a Dredging Management Infrastructure Plan, which minimizes adverse impacts on the environment and maximizes the beneficial economics, while optimizing human use and environmental quality.

    Specifically, we request:
    1-The NYS DEC work with other state and federal agencies to maximize the existing dredging windows to ensure necessary projects can be completed in a timely manner.

    2-In conjunction with the local municipalities, the NYS DEC identify and designate practical adequate and accessible dredged material disposal sites, making them available to public and private applicants.

    3-The NYSDEC establish a single permitting system, including application and review, for dredging projects incorporating federal, state and local interests and expedited permitting procedures and permit review and processing for water dependent commercial businesses. Recognition of the value of these businesses to the state economy and to the local communities, as well as their specialized needs should be explicitly in agency evaluation of dredging permits.

    4-The NYSDEC work with appropriate agencies to develop a consistent funding stream for public dredging projects should (much like public works highway funds) at the state, county and local levels.

    5-The NYS DEC identify options for alleviating the severe financial burden placed on water dependent businesses associated with sediment testing for dredging projects. Costs of testing should be borne or shared by the agency requesting same.

    6- Commercial establishments must be allowed to establish and maintain adequate depths to accommodate vessels.

    7- The NYS DEC should initiate a study to assemble and synthesize data on dredging activities in the waters of New York Sate. Information, including but not limited to the location, volume, sponsors, type and extent of past public and private dredging projects should be collected and analyzed to quantify the scope of dredging activities and provide the baseline information necessary to begin developing sound management plans and regulatory initiatives for dredging activities. This will also establish a base line for non-nuisance projects that will allow for maintenance dredging projects, and exempting same from repetitive or unnecessary reviews.

    8- The NYS DEC resource and habitat evaluation efforts should focus on adequately documenting the presence or absence of natural and living resources and habitats of concern in specific areas where dredging is required rather than placing the onus of research on agencies, businesses or individuals.

    We believe these actions are needed to ensure New Yorkers can continue to enjoy access to our state's waters.
  20. David Steinmetz, NYS Building Instrustry Association - This letter is being submitted on behalf of the Building Industry Association of New York City in accordance with Executive Order Number 25 (August 6, 2009), and the New York State Department of Environmental Conservation's ("Department") invitation for comments on its existing regulatory programs. It identifies several proposals, which attempt to work within the Department's existing regulatory framework, and if implemented, would foster a more productive collaboration between and applicant and the Department.

    In these difficult economic times, the State's ability to attract sustainable development opportunities, and to revitalize critical sectors of its economy is dependent upon an efficient and fair permit review process. It is imperative that New York State recognize that protecting the environment and stimulating the economy are not mutually exclusive. Business owners seeking to bring employment and tax revenue generating opportunities by adaptively reusing abandoned and dilapidated sites in an environmentally responsible manner are hesitant to invest in an unpredictable and contentious regulatory process. In several areas, New Jersey has recognized this, and has managed to attract many investors seeking to develop environmentally sensitive and economically beneficial projects across State lines so to avoid navigating New York's existing permitting process.

    A summary of the proposals are, as follows:
    Pre-Application Scope - convene a "Pre-Application Conference" to agree upon the "Scope" for the administrative review, as well as necessary steps to achieve a "Complete" Application;
    Department "Point Person/Process Advocate" - Appoint a Department representative/advocate for each project to facilitate coordination among DEC's overlapping Divisions with review jurisdiction and the Applicant, and to oversee and promote a more efficient and effective review process;
    "Settlement Conferences" - ALJ to intervene if disputes arise throughout the review process (per or post Completion), upon request of either Department or Applicant; and DEC Office of Meditation - Establish and independent DEC Ombudsman Office to mediate regulatory disputes upon request of either DEC or Applicant. (See comment under Hearings and Mediation)

    EXISTING ADMINISTRATIVE HURDLES
    Currently, the communication between and Applicant and Department Staff is often problematic. The Department all too often assumes a reactive position, rather than proactively identifying the specific materials and information required in order to initiate its technical review of an application - i.e., deem it "complete." There is also poor coordination among the various overlapping Department Division relevant to a particular application. There are two existing procedural stages where this occurs most: (i) the "Pre-Application Conference" pursuant to 6 N.Y.C.R.R. Section 621.5; and (ii) the period before and application is deemed "complete" pursuant to 6 N.Y.C.R.R. Section 621.6

    (A) Pre-Application Conferences
    The Pre-Application Conference is meant to provide and Applicant with a "means of clarifying application content and procedures" before submitting a formal application. 6 N.Y.C.R.R. § 621.5. More often than not, however, Staff performs only a cursory review of the proposed project, leaving and Applicant without an understanding of the specific environmental analysis and methodologies it will be required to submit in order to deem the application "complete" for review purposes. The Applicant thus runs the risk of spending significant resources performing environmental investigations, which may bear little relevance to the Department's concerns.

    Moreover, not all key Department personnel attend such Conferences. Various Divisions within the Department often retain overlapping jurisdiction over development projects, including, the Division of Fish, Wildlife, and Marine Resources, the Division of Permits, the Division of Environmental Remediation, and at times the Regional Attorney. The result is a fragmented internal review, as well as insufficient guidance to the Applicant. An Applicant often must navigate between the conflicting positions of the various Divisions.

    (B) "Completeness" Determinations
    Without adequate guidance, the Applicant often must speculate on the specific information and materials necessary for Staff to deem its application "complete for the purpose of commencing review." 6 N.Y.C.R.R. § 621.2(f). The current Regulations and practice provide Staff with often unfettered discretion to deem an application "incomplete." 6 N.Y.C.R.R. § 621.6. The process frequently results in Staff sending the Applicant numerous "Notices of Incomplete Applications," unnecessarily prolonging the process for months, even years.1 Subsequent notices often request new information from an Applicant, much of which could (and should) have been included in a single, comprehensive "Scope."

    Staff's "completeness" determination is a critical procedural turning point in an application. Once such determination occurs, Staff is subjected to specific deadlines in which a determination on the application must be made.2 In addition; most determinations of Staff are appealable to an ALJ once an application is deemed "complete." In contrast, there are no deadlines applicable to when Staff must deem an application "complete." Moreover, there is no specified ALJ involvement, or other appeal or due process procedures, available until an application is deemed "complete." The permit review process at the pre-completeness stage thus lacks any meaningful accountability mechanisms.

    The costs and time in connection with navigating the review process are overwhelming and counter-productive. Based upon a recent survey our client's development costs, it is estimated that Applicants looking to adaptively reuse abandoned sites, typically along dilapidated stretched of New York's waterfront, commonly spend over $1 million to navigate its way through, in particular, the Department's regulatory labyrinth so as to generate a "complete" application.

    This letter sets forth four proposals for addressing the aforementioned issues, working within the existing regulatory framework.
    1. "Scoping" Sessions Between The Applicant And All Relevant Department Divisions During "Pre-Application Conferences"
    An early coordination process should be established similar to a "Scoping" session utilized under the State Environmental Quality Review Act ("SEQRA"). The goal would be to provide Applicant with a list of "the specific issues to be addressed" during the environmental review of the project. See DEC SEQRA Handbook, (1992) Chapter 5, at 56. The Applicant would initially submit a proposed Scope to the Department Staff, outlining the proposed materials and analysis that would be included in its permit application so as to deem it complete for review purposes. The Scope would set forth:
    Materials required to deem the application "complete;"
    Discussion of the potential adverse impacts the Applicant must evaluate;
    Methodologies to be used and approximate costs in evaluating said impacts; and
    Timeframe for completing SEQRA.

    A representative from each Division with jurisdiction over the application would be present at the Pre-Application Conference. The Conference would conclude with all parties formally adopting the agreed upon Scope. The Department must be careful to ensure that this Scoping process does not turn into a protracted and indefinite review.

    2. Appointing A Department "Point Person/Process Advocate"
    In order to ensure prompt and orderly communication and processing of the subject application, a representative from the Department would be appointed as the "point person" for the project during the Pre-Application Conference. This individual would serve as liaison between the Applicant and the Department.
    The Point Person would not only act as the so-called gatekeeper regarding the information flow for the particular application, but also as an advocate for ensuring that there remains a constructive and pro-active dialogue between the Department and the Applicant with respect to addressing and of the relevant issues related to the application. This is a different mindset than presently exists, and would recognize the importance that many of the aforementioned applications play in achieving the economic sustainability of the City.

    CONCLUSION
    These proposals are offered in furtherance of balancing the essential environmental and economic goals relevant here. It is one of the greatest challenges facing the State of New York, and this region. The Governor specifically invoked this objective on Executive Order Number 25, which is seeking to "reduce substantially unnecessary burdens, costs and inefficiencies and to improve the State's economy while maintaining appropriate protections for the public health, safety, and welfare." These four proposals seek to further this commendable objective.

    (Additional comment under Hearings and Mediation)
  21. Riverkeeper - Riverkeeper is opposed to the premise of Executive Order 25. The Order is inherently biased towards reducing or eliminating regulations, because it requires agencies to identify a minimum number of regulations that are "unpopular," and gives the Review Committee the power to override the agency's Commissioner to decide which regulations survive, and which are eliminated. The Order will create more work, not less, for state agencies like the DEC and Department of Health, whose staffs are struggling to protect the environment and public health with slashed budgets and dwindling tax revenues, by forcing them to review thousands of regulations that have already undergone extensive public review. It grants almost unlimited power to a small group of political appointees to remake the state's regulatory system to serve their political interests, not the needs of the people of New York or its environment.

    The Governor's mandate in Executive Order 25 to reform or repeal rules and requirements to reduce unnecessary burdens, costs and inefficiencies of business is clearly inconsistent with the DEC and other agencies' regulatory mandate of maintaining appropriate protections for the public health and safety and the environment. Changing the regulatory process in favor of business contradicts the essence of environmental conservation. Under the Environmental Conservation Law (ECL), it is the role of the Department under the Commissioner, rather than the Governor's Review Committee appointees, to "amend or repeal environmental standards, criteria and those rules and regulations having the force and effect of standards and criteria to carry out the purposes and provisions of [the ECL]" (New York Environmental Conservation Law § 03-0101(2)(a)).

    In order to improve the DEC's regulatory approach, the agency needs to improve the way it implements and enforces the existing regulations; simply amending or repealing current regulations because a particular subset of the public thinks they are an "unnecessary burden" will not improve the economy, and will not protect the environment. Successful environmental regulation depends upon efficient, consistent enforcement, and clear, consistent interpretation of current laws and regulations. A cleaner, better regulated environment is a prerequisite to a healthy economy (recognized in New York Environmental Conservation Law § 1-0101(1)). Also, it is critical that the DEC, the agency with the expertise and experience to protect the environment, be in charge of periodically reviewing and revising its own regulations; this responsibility should not be delegated to a politically motivated and economically driven review committee that has neither the experience nor the perspective needed to make sound decisions regarding environmental protection.

    While Riverkeeper opposes the fundamental premise of Executive Order 25, we offer the following comments to DEC regarding its implementation of the Order's regulatory review mandate.

    II. The "Trustee of the Environment" should foster support for stewards of the environment
    Serving as a trustee of the environment requires that the DEC consider the short-term and long-term effects on the environment of any regulatory action it undertakes. In accordance with the Governor's directive in Executive Order 25 for the DEC to review comments submitted over the past several years in making its determination of selecting regulations to revise, we urge the Agency to carefully review and fully consider comments aimed at increasing enforcement and strengthening regulatory oversight, reflecting the belief that protecting the environment will stabilize the economy and promote economic growth in both the short and long term.

    Given the stated and implied legislative purpose of the DEC to serve as a "trustee of the environment for the present and future generations," the agency's review of its regulations should only consider revisions or amendments to regulations that are consistent with the agency's mission of abating pollution and conserving natural resources.

    Focusing on making regulations more stringent is not only in line with the DEC's purpose, but also creates an economic opportunity for businesses and products focused on environmentally-friendly principles, such as renewable energy, alternative fuels, green infrastructure (e.g. green roofs, permeable pavement, and other stormwater reduction technologies), and "green architecture" (modular housing, LEED certification, use of recycled building materials, etc.).

    III. The DEC should view this executive mandate as an opportunity to engage the public in a meaningful dialogue that will lead to improving, not reducing effective environmental regulation in New York
    Riverkeeper urges the DEC to take advantage of the mandate contained in Executive Order to actively engage the public in a process that emphasizes transparency and robust public participation, including the following actions.

    DEC should publish a summary of the public comments received pursuant to Section 5 of the Order through the comment period ending February 16, 2010 on the DEC website. The summary should list which regulations were commented upon, volume of comments, etc., so that the public is fully informed of the scope, volume and content of all comments received. Simply posting individual comments on the DEC website is insufficient.

    DEC must publish the draft report prepared for the Review Committee pursuant to Section 8 of the Order for public comment either prior to or concurrently with the submission of the report to the Review Committee, in order to allow the public a meaningful opportunity to comment on the agency's draft decision.
    • Under Section 8-9 of the Order, the Review Committee has the discretion to decide whether to issue the draft report for public comment - this denies the public a valuable opportunity to provide feedback on the agency and Review Committee's draft decision before any final decision is made to amend or revise existing regulations. Public opportunity for comment must be made available as early and as often as possible.
    • Following receipt of public comments on the draft report, the DEC should issue a final report that includes the agency and the Review Committee's responses to specific comments and an adequate explanation of the reasons for the agency and Review Committee's decision.

    Any proposed rulemaking, repeal or amendment of existing regulations must comply with the State Administrative Procedure Act (SAPA) in all respects - the provisions for limited public comment and review contained in Executive Order 25 should only supplement, and not supplant the SAPA process.

    IV. Examples of Recommended Improvements to DEC Regulations The following are simply examples of potential regulatory changes that could promote more efficient regulation without reducing environmental protection.
    In the regulations for SEQR, DEC should make the scoping process mandatory under 6 NYCRR § 617.8. Focusing on mitigation measures early in the review process has the potential to decrease costs of businesses and developers substantially. Also, it creates an opportunity to decrease greenhouse gas emissions in accordance with Executive Order 24 and the DEC's 2009 policy, "Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements."

    DEC should explore ways to promote and increase the use of Alternative Dispute Resolution (ADR) in permitting, SEQR and enforcement proceedings. The implementation of proper ADR procedures can increase efficiency and predictability and reduce the frequency of administrative and judicial litigation.

    On behalf of Riverkeeper, we appreciate this opportunity to provide comments on Executive Order 25, and urge DEC to avoid taking any action that carries the risk of reducing environmental protection and thereby failing the agency's legislative mandate.

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Environmental Remediation Regulations

  1. Michael Heimbinder, Executive Director, HabitatMap - I am deeply concerned about the Governor's attempt to roll back environmental regulations. While the goal of Governor Paterson's Executive Order #25 is to put polluters ahead of New Yorkers, I'd like to use this moment as an opportunity to point out a current regulation in need of review.

    The state's Brownfield Cleanup Program is costing taxpayers hundreds of millions of dollars - but not achieving its goals. The DEC's watered down regulations allow unsafe levels of heavy metals and other toxic chemicals to remain in the ground at sites that are "cleaned up." As a result, many of these sites could still pose toxic threats to children, water, indoor air in homes, and fish and wildlife habitats for generations to come.

    We should not be handing out generous tax credits to developers to support weak cleanups that do not protect our health and our environment. Weak cleanup standards put both the public and the State of New York at risk. DEC and DOH should reopen and revise the Soil Cleanup Objectives so that toxic sites are safely cleaned up.
  2. Reed Dunlea - I am concerned about Executive Order #25 the Governor's attempt to roll back environmental regulations. While the goal of Governor Paterson's Executive Order #25 is to put polluters ahead of New Yorkers, I'd like to point out a current regulation in need of review.

    The state's Brownfield Cleanup Program is costing taxpayers hundreds of millions of dollars - but not achieving its goals. The DEC's watered down regulations allow unsafe levels of heavy metals and other toxic chemicals to remain in the ground at sites that are "cleaned up." As a result, many of these sites could still pose toxic threats to children, water, indoor air in homes, and fish and wildlife habitats for generations to come.

    We should not be handing out generous tax credits to developers to support weak cleanups that do not protect our health and our environment. Weak cleanup standards put both the public and the State of New York at risk. DEC and DOH should reopen and revise the Soil Cleanup Objectives so that toxic sites are safely cleaned up.
  3. Carol Meschkow, President, Concerned Citizens of the Plainview-Old Bethpage Community Inc. - As a long time environmental activist I am deeply concerned about the Governor's attempt to roll back environmental regulations. While the goal of Governor Paterson's Executive Order #25 is to put polluters ahead of New Yorkers, I'd like to take this opportunity to point out a current regulation in dire need of review.

    The state's Brown field Cleanup Program is costing taxpayers hundreds of millions of dollars - but not achieving its goals. The DEC's weak regulations allow unsafe levels of heavy metals and other toxic chemicals to remain in the ground at sites that are "cleaned up." As a result, many of these sites could still pose toxic threats to our susceptible children, water, indoor air in homes, and marine and wildlife habitats for generations to come.

    We should not be handing out generous tax credits to developers to support weak cleanups that do not protect our health and our environment. Weak cleanup standards put both the public and the State of New York at risk.

    In closing, respectfully the DEC and DOH should reopen and revise the Soil Cleanup Objectives so that toxic sites are safely cleaned up and do not pose a threat to our health.
  4. Doug Bullock, Albany County Legislator - The DEC and DOH have ignored many of the Brownfield Law's important public health and environmental criteria when developing soil cleanup standards for contaminants found at brownfield and Superfund sites. As a result, many sites that are "cleaned" under this program could still pose toxic threats to children, water, indoor air in homes, and fish and wildlife habitats.

    For example, the regulations set industrial cleanup standards as high as 3,900 parts per million for lead and 10,000 parts per million for cyanide. In years past, when such levels were found at Superfund sites, these levels of contamination would have triggered the site being cleaned up. Now these are merely the levels to which the site must be cleaned. The Brownfield Cleanup Program is costing the state hundreds of millions of our tax-payer dollars. In return, we should be getting clean sites.

    I am deeply concerned about the Governor's attempt to roll back environmental regulations through the Governor Paterson's Executive Order #25 which will put polluters ahead of New Yorkers. The state's Brownfield Cleanup Program is costing taxpayers hundreds of millions of dollars - but not achieving its goals. The DEC's watered down regulations allow unsafe levels of heavy metals and other toxic chemicals to remain in the ground at sites that are "cleaned up."

    We should not be handing out generous tax credits to developers to support weak cleanups that do not protect our health and our environment. Weak cleanup standards put both the public and the State of New York at risk. DEC and DOH should reopen and revise the Soil Cleanup Objectives so that toxic sites are safely cleaned up.
  5. Jeffrey A. Levitt - I am very concerned about the Governor's plan to change regulations about our environment in Executive Order 25. This places polluters ahead of us. For instance, the Brownfield Cleanup Program is costing us hundreds of millions of dollars without reaching the desired end result and enriching builders and developers at our expense. These sites still are a threat to me and my kids.

    We should not be giving these fat cats anymore of the tax receipts that we pay for these lousy cleanup jobs. These corporate giveaways better end here or the voters will throw the Governor and his staff out once and for all and get someone in there that will work for the taxpayers and protect our environment instead of weakening it.
  6. Debra Hall, Hopewell Junction Citizens for Clean Water - My neighborhood is textbook on what is wrong with Order #25!

    I am deeply concerned about the Governor's attempt to roll back environmental regulations. While the goal of Governor Paterson's Executive Order #25 is to put polluters ahead of New Yorkers, I'd like to use this moment as an opportunity to point out a current regulation in need of review.

    The state's Brownfield Cleanup Program is costing taxpayers hundreds of millions of dollars - but not achieving its goals. The DEC's watered down regulations allow unsafe levels of heavy metals and other toxic chemicals to remain in the ground at sites that are "cleaned up." As a result, many of these sites could still pose toxic threats to children, water, indoor air in homes, and fish and wildlife habitats for generations to come. We should not be handing out generous tax credits to developers to support weak cleanups that do not protect our health and our environment. Weak cleanup standards put both the public and the State of New York at risk. DEC and DOH should reopen and revise the Soil Cleanup Objectives so that toxic sites are safely cleaned up.
  7. Stephen M. Rosario, CAE. Executive Director, New York State Chemical Alliance - - The New York State Chemical Alliance is a statewide trade association that represents chemical manufacturers, distributors and users engaged in the business of chemistry in New York. Our industry is proud to employ almost 50,000 New Yorkers and contributes over $3.4B to the State's economy. The federal, State and local taxes our members pay help support state and local government programs and services across the state.

    The Alliance is pleased to submit the following comments pertaining to NYS environmental regulations on behalf of its members under Executive Order 25.
    Petroleum Bulk Storage

    Issue: Lack of promulgated regulations should preclude formal enforcement
    Chapter 334, relating to the definitions of petroleum and chemical storage facilities, was passed in 2008, but its requirements are still not currently reflected in existing Petroleum Bulk Storage regulations.

    Based on changes to the definitions of petroleum, tank, and facility in ECL §17-1003, tanks, machinery and equipment that store petroleum or petroleum products for operational purposes would now be subject to the Petroleum Bulk Storage regulations.
    Although DEC issued a PBS Enforcement Discretion Directive informing the regulated community that it has decided to exercise enforcement discretion regarding this issue, facilities subject to the regulations are concerned that DEC could 'change its mind' at any time and begin enforcement before the existing regulations are formally revised.

    Recommendation: The NYSDEC should not require registration of such equipment and not pursue enforcement until revisions to the PBS regulations has been formally implemented.

    Issue: Change in terms required for proof of financial ability to pay
    DEC has formerly accepted a company's financial report as sufficient evidence of adequate financial reserves to cover potential remediation/clean up costs of a facility site.

    However, DEC has since changed its practice to now require a formal Stand By Letter of Credit (SBLC) with DEC named as the beneficiary with respect to assuring coverage for clean up costs for potential remediation work under a consent order. This change has cost a member company an additional $20,000 - $30,000 per year in previously unanticipated bank fees and interest charged by the bank on the line of credit.

    Recommendation: A company's written affirmation of its ability to pay, as certified by its Chief Financial Officer or other executive officer, should suffice as proof of financial reserves required to pay for environmental remediation costs.

    The Alliance appreciates the due consideration given to its members' feedback by DEC policy officials, and looks forward to future constructive engagement with the agency on regulatory reform.

    (Additional comment under Environmental Permit)
  8. Randolph Price, Vice President Environment, Health & Safety, Consolidated Edison Company of New York, Inc.- Consolidated Edison Company of New York, Inc. ("CECONY" or the "Company") welcomes the opportunity to provide comments to the New York State Department of Environmental Conservation (the "Department") identifying "existing [Department] regulations that the Company believes impose unnecessary, burdensome or excessive costs, paperwork, reporting or other requirements." These comments are provided pursuant to Governor Paterson's Executive Order No. 25, issued August 6, 2009, and in response to the Department's public notice in the December 16, 2009 Environmental Notice Bulletin ("ENB"). These comments are also being provided to each of the e-mail links listed in the ENB Notice with respect to the specified regulatory topics identified below.

    CECONY is a subsidiary of Consolidated Edison, Inc., one of the nation's largest investor-owned energy companies. The Company, a regulated utility under the New York Transportation Corporations Law, provides electric, gas and steam service to more than three million customers in New York City and Westchester County. Overall, CECONY serves a population of approximately nine million people throughout a service territory covering 660 square miles.

    The Company is a recognized national leader in its commitment to environmental excellence, and has spent significant resources in achieving and maintaining the high quality of its environmental compliance programs. In 2008, CECONY's environment, health and safety expenditures were more than $370 million. CECONY will, of course, continue this commitment to environmental excellence, but as a regulated utility it also has an obligation to its customers to achieve environmental excellence at the lowest practical cost. Consequently, the Company is pleased to draw the Department's attention to areas that have the potential to improve the Department's regulatory processes by effectuating limited regulatory reforms that will reduce costs faced by energy consumers in the state and the state's own oversight costs without significant adverse environmental impact.

    The Company's comments on specific regulatory programs, set forth in detail below, are organized within four of the distinct regulatory categories outlined in the Department's ENB Notice, including (i) air regulations; (ii) environmental permit regulations; (iii) environmental remediation regulations; and (iv) solid and hazardous materials regulations. Where possible, and in accordance with the ENB Notice, the Company's comments make an effort to "suggest appropriate remedies that the agency may undertake to eliminate or amend regulations that are unnecessary, unbalanced, unwise, duplicative or unduly burdensome."

    3. ENVIRONMENTAL REMEDIATION REGULATIONS.
    Professional Engineer Certifications. The Department's 6 NYCRR Part 375 regulations, effectively requiring professional engineer certifications for non-design-
    based remediation work plans and site investigation plans (see 6 NYCRR § 375-1.6(b)(3)), adds unnecessary cost and delay to the regulatory process with no added value. The requirement should be eliminated.

    Brownfield Cleanup Program Revisions. Since the adoption of the Brownfield Cleanup Program ("BCP") and the elimination of the Voluntary Cleanup Program, the Department has not had a generally applicable program for remediation of "unlisted" sites, except by means of a consent decree in an enforcement action. The Company recommends that the Department establish a streamlined investigation and remediation program for such sites that will promote voluntary, pro-active efforts to expedite the cleanup of such sites and avoid the unwarranted connotations created by the use of consent decrees that can have the unintended consequence of suppressing the legitimate real estate value of such sites. Moreover, the BCP currently requires the consent of a property owner for entry into the BCP and the owner's grant of an environmental easement to the State before Department signoff with regard to the site. In the case of utility street work, meeting these requirements is not feasible. CECONY recommends that the BCP be revised so that utility companies that are required to remediate contamination not caused by them while installing underground conduits, cables, mains and pipes beneath public streets, roads and highways, can participate in the BCP regardless of whether the municipalities or government agencies that own such streets, roads and highways (i) consent to the affected utility's participation in the BCP; and (ii) are willing to grant any environmental easement that the Department may require as part of the remediation program for the affected area.

    (Additional comments from this letter may be viewed under Air Regulations, Environmental Permits Regulations, and Solid & Hazardous Regulations)
  9. Laura Haight, New York Public Interest Group - Attached please find the comments that NYPIRG and several other groups submitted in 2006 during the development of the Part 375 regulations.
    Comments- March 2006 (529 kb PDF)
    Final Comments- August 2006 (169 kb PDF)

    While some of our concerns were taken into consideration in the final regulations, many, if not most, were not addressed. At least one of our concerns (cleanups to site background levels) was resolved through subsequent litigation, although the regulations have not been amended to reflect this change. And there are additional changes that were made in the final 375 regulations that we did not have the opportunity to comment on.

    At the public hearings held across the state in 2006, many concerned citizens, environmentalists and health advocates testified in support of more stringent cleanup standards. In our conversations with representatives from the Governor's office, we were informed on numerous occasions that there was nothing in the EO 25 regulatory review process prohibiting us from submitting examples of regulations that in our opinion were not strong enough. Therefore, we are submitting this for consideration as a regulation that is in need of strengthening and improvement.

    Additionally, we are submitting the analysis of New York's brownfield cleanup program that shows, among other things, that New York's cleanup standards are weaker than those in many other states. Analysis- September 2007 (68 kb PDF). Thank you very much for your consideration.

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Fish, Wildlife and Marine Resources Regulations

  1. Edward J. Kritz - Concerning the Doe/deer management permit, the Ten dollars required should be waived for a gun hunter if the permit is not granted and the Ten dollars would be required if a permit is granted.
    OR
    With the recent license rate increases in 2009, the Doe/deer management permit could be merged with the regular Big Game license without an extra fee. A quota of one Buck anywhere allowed in NYS and a quota of 1 Doe in a designated WMU for a gun hunter.
  2. Robert Johnson, President & CEO, Outdoor Amusement Business Association - On behalf of the Outdoor Amusement Business Association (OABA), we hereby seek to bring to your attention the burdensome and adverse economic impact created by the Department of Environmental Conservation's (DEC) current application of ECL section 11-0511 as it pertains to public contact with endangered species, specifically elephant rides.

    For over 40 years, New Yorkers enjoyed access to elephant rides at fairs, circuses and other amusement events. In August 2007, a long-time elephant ride owner/operator, Commerford & Sons, was denied permission to offer elephant rides by the NYDEC as a condition of its exhibitors permit, as follows:

    Animals must be exhibited, held, transported an housed in a manner which prevents direct contact with the public at all times. The licensee must take all reasonable and necessary measures to ensure the welfare and safety of the public and the animals, including but not limited to employing the necessary barriers or physical restraints to maintain complete control of the animals at all times, in particular to prevent the animals from biting, clawing or scratching the public (emphasis added).

    At the same time, zoos within New York were notified that any public contact or interaction with elephants was prohibited. Current New York law regarding the exhibition and possession of certain endangered/threatened wildlife states the following (emphasis added):
    "no person shall, except under a license or permit first obtained from the department....possess, transport...any...endangered species designated pursuant to section 11-0535...where the department finds that possession, transportation, importation or exportation of such species of wildlife would present a danger to health or welfare of people of the state, an individual resident or indigenous fish or wildlife population [ECL section 11-0511]

    The OABA objected on record to the DEC's enforcement of a "no contact" policy under New York law for the following reasons:
    The department shall have the power to make regulations governing the possession of such fish, wildlife...to protect them from cruelty, disease or undue discomfort and to protect the public from attack or contamination [ECL section 11-0515]
    - The DEC has failed to make findings or to establish a public health or safety risk associated with elephant rides or direct contact. In fact, no patron has ever been injured in New York State while riding elephants;
    - The DEC has failed to promulgate rules and allow for public comment on a no-contact restriction or ban on rides;
    - Many other states provide rules which allow for permitting of elephant rides, including neighboring New Jersey;
    - All elephant ride operators must have a valid USDA exhibitor's license and are subject to regular unannounced inspections under the federal Animal Welfare Act. USDA does not prohibit or restrict rides or direct contact;
    - Exhibitors in New York are subject to additional inspections by the New York Department of Agriculture and Markets;
    - Elephant rides are a popular attraction and a significant source of income to exhibitors and fair operators; prohibitions on elephant rides are an economic hardship for these small businesses and cause a loss of revenue to state fairs;
    - Insurers regularly underwrite elephant rides as an acceptable and insurable activity;
    - Diseases like TB through public contact or elephant rides. USDA currently requires a stringent set of protocols for testing and treatment of elephant exposed to TB and restricts travel for any animals that may be at risk.

    As mentioned above, elephant rides are an important source of income to the small family business owner/operators who provide their USDA licensed animals to fairs and circuses in New York State. The arbitrary decision to ban rides absent any rulemaking, public comment or basis, in fact, has cost these small business much needed income. In addition, it has deprived New York fairs and community festivals access to revenue-generating attractions. Finally, the rules have denied New Yorkers the enjoyment of interacting with elephants at state fairs, circuses and zoos.

    We urge you to reverse the current interpretation and implementation of this rule and restore the opportunity for elephant ride providers to once again operate in New York.
  3. Todd Vandervort, The Vandervort Group - Pursuant to Executive Order 25, I am writing to you on behalf of my client, the New York State Association of Agricultural Fairs, Inc. (NYSAAF). NYSAAF represents 55 fairs comprised of 44 county fairs, 10 youth fairs and the Great New York State Fair. Thousands of volunteers, who are residents of New York State, annually give their time and talents to produce the county fairs. These fairs are a large economic factor in the local communities they serve, and carnivals, outdoor amusements and other attractions play an integral role in the success of these fairs. For more than 175 years, fairs have promoted, protected, and helped preserve the important traditions of agriculture and family fun.

    I am writing to you today to address a dramatic regulatory change made to the Endangered/Threatened Species licenses issued in New York by the Department of Environmental Conservation (DEC) relating specifically to elephant rides. DEC made this internal change, which effectively stopped fairs from offering elephant rides, without input from the affected parties. NYSAAF respectfully requests that DEC lift this regulatory burden through the removal of the license's "no-contact" provision.

    By way of background, elephant rides have been given for over 40 years at most major New York Fairs and other amusement events and attractions. No patrons have ever been injured in New York State while riding elephants. This outstanding safety record and U.S.D.A. regulations for the treatment and care of elephants, as well as 24/7 veterinarian care by owners give insurance companies that issue liability policies no cause for concern, given the minimal risk to the public.

    Up until 2004, Endangered/Threatened Species licenses issued in the State by the NYS Department of Environmental Conservation (DEC) included the following provision:
    "When live animals held pursuant to this license are in direct contact with the public, the licensee must take all reasonable and necessary measures to ensure the welfare and safety of the public and the animals, including but not limited to employing the necessary physical restraints to maintain complete control of the animals at all times, in particular to prevent the animals from biting, clawing, or scratching the public."

    However, this language was not included as part of the 2004-2005 licensing process.

    On December 1, 2005, DEC incorporated a "no-contact" provision to the license requirement stating that holders of a 2005-2006 Endangered/Threatened Species license must prevent elephants from being in direct contact with the public at all times. With no communication from DEC on this change, in August of 2007 elephant owner/operator Commerford & Sons was prohibited from giving elephant rides at the Erie County Fair. This was the first time that any operator had received notification regarding this issue.

    The timeline that we have outlined above clearly shows DEC's disregard for the SAPA process as at no point in time were any of the effected parties contacted for their input or notified of changes to these licenses. It was not until April of 2008 that notification was sent to holders of Endangered/Threatened Species licenses indicating that elephant rides were prohibited in New York, as well as all other direct contact between elephants and the public.

    Surrounding States such as New Jersey, Connecticut, Pennsylvania and Massachusetts allow elephant rides. The safety precautions and training requirements of giving elephant rides and regulations for the elephant handlers are extensive in other states, such as New Jersey, and we recommend similar regulations in New York State.

    By not allowing elephant rides in the State, this presents a severe economic impact to small business owners, county fairs, the State Fair and other amusement events and deprives patrons of a wonderful educational experience. Returning to the pre-2005 Endangered/Threatened Species license requirements would go a long way in preserving what has been a long-standing New York fair tradition. Thank you for considering our comments.

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Forest Protection Regulations

No submissions to date.

Hearings and Mediation Regulations

  1. David Steinmetz, NYS Building Association - This letter is being submitted on behalf of the Building Industry Association of New York City in accordance with Executive Order Number 25 (August 6, 2009), and the New York State Department of Environmental Conservation's ("Department") invitation for comments on its existing regulatory programs. It identifies several proposals, which attempt to work within the Department's existing regulatory framework, and if implemented, would foster a more productive collaboration between and applicant and the Department.
    In these difficult economic times, the State's ability to attract sustainable development opportunities, and to revitalize critical sectors of its economy is dependent upon an efficient and fair permit review process. It is imperative that New York State recognize that protecting the environment and stimulating the economy are not mutually exclusive. Business owners seeking to bring employment and tax revenue generating opportunities by adaptively reusing abandoned and dilapidated sites in an environmentally responsible manner are hesitant to invest in an unpredictable and contentious regulatory process. In several areas, New Jersey has recognized this, and has managed to attract many investors seeking to develop environmentally sensitive and economically beneficial projects across State lines so to avoid navigating New York's existing permitting process.

    A summary of the proposals are, as follows:
    Pre-Application Scope - convene a "Pre-Application Conference" to agree upon the "Scope" for the administrative review, as well as necessary steps to achieve a "Complete" Application;
    Department "Point Person/Process Advocate" - Appoint a Department representative/advocate for each project to facilitate coordination among DEC's overlapping Divisions with review jurisdiction and the Applicant, and to oversee and promote a more efficient and effective review process;
    "Settlement Conferences" - ALJ to intervene if disputes arise throughout the review process (per or post Completion), upon request of either Department or Applicant; and
    DEC Office of Meditation - Establish and independent DEC Ombudsman Office to mediate regulatory disputes upon request of either DEC or Applicant.
    (Additional comment under Environmental Permits)

    3. ALJ Intervention/Meditation
    With an agreed upon Scope, the "completeness" process will hopefully be streamlined. Once the Applicant submits the requisite material identified in the Scope, the application should be deemed "complete."3 The public review, and adjudicatory hearing, if necessary, would thus be able to commence. 6 N.Y.C.R.R. § 621.6.
    Disputes may arise, nonetheless, as to the sufficiency of the information and analysis provided through the completeness determination. In the event that the parties cannot resolve such differences, then each would be afforded the opportunity to appeal to an independent authority, pre-completeness, such as an ALJ. This process is already employed in the post-completeness stage, where the parties may engage in a "frank and open discussion" before an ALJ during a "Settlement Conference," however, requires the mutual agreement of the parties, and can only be utilized once the application is deemed "complete." Thus, the process is rarely invoked.
    Expanding the ability to mediate disputes to all phases of the Department's review should improve the capacity to resolve such disagreements in a timelier manner, and inject more accountability in the process. If one party requests such meditation, participation by both sides should be mandatory. In addition, the ALJ assigned to the mediation should be retained throughout the review process, so that the parties know that the same individual would be determining the substantive issues raised at a potential subsequent Adjudicatory Hearing or appeal. This continuity should enhance the level of responsiveness and cooperation between the parties.
    It may be difficult administratively for an ALJ to serve in an informal mediation capacity given their more formal statutory adjudicatory role during the post-completion hearing process. Additional regulatory rules may be necessary.

    4. Independent Office Of Meditation Within The Department
    As a alternative to utilizing an ALJ to mediate disputes, an independent Office of Mediation might be created within the Department. There are various successful models, including, the Dispute Resolution Service created in the Federal Energy Regulatory Commission ("FERC").
    FERC maintains a Dispute Resolution Service, which is composed of meditation and facilitation specialists with a working knowledge of the technical issues involved in FERC permitting. It was proposed and created specifically by former FERC permitting staff, which recognized the need for specialist to serve as neutral third party to resolve difficult regulatory disputes between the Agency and Applicants during the review process. The goal of the Service is to identify and facilitate mutually acceptable solutions, and proactively advance the review process. A similar independent office within the Department would be a beneficial mechanism to achieve similar goals.

    CONCLUSION
    These proposals are offered in furtherance of balancing the essential environmental and economic goals relevant here. It is one of the greatest challenges facing the State of New York, and this region. The Governor specifically invoked this objective on Executive Order Number 25, which is seeking to "reduce substantially unnecessary burdens, costs and inefficiencies and to improve the State's economy while maintaining appropriate protections for the public health, safety, and welfare." These four proposals seek to further this commendable objective.

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Lands and Forests Regulations

  1. Steven Bick, PhD, ACF, CF, Northeast Forests, LLC. - If this is in fact a sincere request for input and if you do want to actually improve and streamline things (sorry, but I've see a lot smoke blown and heard a lot of lip service about public input), you will immediately implement the changes to the forest tax law that were made in 2008. Specifically, the best route for all parties in dealing with this change would simply be for the landowners to share a copy of an third part annual audit statement with the DEC and satisfy all requirements in that way. This would free up DEC staff time for other duties and would keep expenses to the landowner to a minimum. DEC Forestry staffing is down and morale is low. Here is an easy way to free up some of their time for their other important duties.
  2. Tom Gilman, Tupper Lake - I understand that NYS is cutting much less timber than they can sustainably on lands where they can legally do so. Obviously staffing or lack of adequate staffing is playing a major part in this deficiency. Certainly hiring additional staff in these economic times regardless of income potential may be a difficult pill to swallow. I would suggest that the timber sale process including inventory, timber marking and sale layout be subcontracted to a forestry consulting firm? If the DEC feels strongly they can administer the timber sale after that. The benefits will be three fold. First NYS would receive income that is available for the picking. Second the forests would be healthier and more sustainable. Thirdly NYS Gov't would be supporting NY business's. It really is a win win situation.
  3. Mike Hill, Treasurer, New York State Maple Producers Association - Rationale for the NYSDEC to change its rules and regulations in order to allow tapping of maple trees on state forestland:

    Over the past two years, the NYS Department of Environmental Conservation (NYSDEC) and NYS Maple Producers Association (NYSMPA) have been discussing the potential of tapping maple trees on state forestland outside of the Adirondack and Catskill Preserves. The outcomes of the discussions have been disappointing from the perspective of the NYSMPA, as the DEC has only been able to grant permission to conduct pilot studies for hanging buckets on previously tapped and roadside trees. This document first provides some background information on the topic and then explains the rationale for why the DEC should change its rules and regulations to allow the installation of vacuum tubing systems on some state forestland.

    Background
    There are roughly 25 million potential taps on state forestland, many of which are located near the sugarbush of a maple producer. Many maple producers are interested in gaining access to these trees in order to expand their operations. In fact, roughly 25% of producers in NYS indicated in a 2009 Cornell administered survey that "not being able to tap on state land limits the growth of their business". If just 1% of the potentially tappable maple trees on state forestland were used for syrup production, it would result in ~250,000 additional taps being placed in NYS, a ~20% increase above current levels. Quebec and Vermont both allow tapping on government owned land, which is part of the reason they dominate the maple industry. Vermont just started leasing additional sugarbush tracts in the summer of 2009 whereas Quebec greatly increased their production on Crown land in the late 1990s.

    The NYS Maple Task Force, commissioned by the NYS Department of Agriculture & Markets, recommended in their final report (released October 2009) that DEC change some of its rules and regulations in order to allow tapping of state forestland. DEC has raised four main obstacles to allowing tapping. These are outlined below along with the policy/regulatory changes that are necessary to move forward.

    Issue #1: The use of tubing would constitute "exclusive use" of state forestland and is therefore not permitted
    We are not asking to change the law such that "exclusive use" is allowed for state forestland, but simply be modified to state that the installation of maple tubing does not constitute exclusive use, provided that tubing lines do not impede travel across roads and trails. All of the human activities and ecosystem services that could occur in an untapped forest could also occur if that same forest was tapped. If done properly, installing tubing systems and collecting sap does not preclude the use of that forest for recreation, wildlife habitat, water quality protection, or other purposes. A lease contract could be developed such that timber harvesting would occur before tubing is installed. Furthermore, the contracts could include provisions that require sugarmakers to provide access for future timber harvesting by complete removal of tubing systems every 15-20 years, as needed to facilitate a necessary and beneficial timber harvest.

    Issue #2: DEC is not allowed to enter into long-term leases of forest properties.
    Maple producers make significant investments in vacuum tubing collection systems in order to harvest sap in the most cost-effective and environmentally friendly manner possible. Producers need at least a 5 year lease to recover the large up-front investment in time and materials to set up the tubing system. However, the DEC has stated that it is not allowed to enter into long-term leases of state forestland. We are asking that this policy be changed such that contracts could allow a producer to gain tapping rights for a 5 year period. These contracts would be renewable each year, but only if a producer follows all of the rules and guidelines established in the contracts.

    Issue #3: DEC does not have the staffing capability to administer the tapping leases.
    Maple producers understand that there is not enough time to do all of the things that need to be done, especially with limited manpower. We wish to see the staffing levels at DEC increased so that the agency is able to properly manage the state's natural resources. However, given that staffing levels are unlikely to increase, the NYSMPA and Cornell Maple Program are offering to assist the DEC in developing the guidelines and managing the program. Vermont and Quebec have already developed comprehensive programs that could easily be modified to suit the needs of New York. They utilized a partnership of government, industry and university resources to develop excellent programs that have allowed maple producers to gain access to the trees. NY could develop a similar consortium with representatives from NYSDEC, NYSDAM, NYSMPA, and Cornell to develop the guidelines and protocol. Once implemented, it will require very little time for DEC foresters to administer the annual leases on state forestland.

    Issue #4: DEC must manage their forestland for sawtimber production, as this use generates the highest economic return to the state
    The DEC is reluctant to allow tapping of maples since it must use the forestland in a manner that generates the greatest economic benefit for the state. However, there are misconceptions that managing for sawtimber production will always yield a higher return that leasing for syrup production. In fact, the Quebec government has commissioned three studies to examine the socio-economic costs and benefits of managing government owned land for timber production or leasing for syrup production.
    (1) TECSULT (1998): Comparative study between maple and forestry farming - M.R.C. Témiscouata
    (2) Ministry of Natural Resources, Directorate of Technical Assistance (1998): Comparative economic analysis between production of wood and maple syrup coming from sugar bushes in the public domain.
    (3) Ministry of Natural Resources, Directorate of the Development of the Forest Product Industry (1999): Impacts of forestry and maple productions in Québec.
    The results of these studies prompted the government of Quebec to start leasing additional taps in the late 1990s, as all three studies found that leasing for syrup production was more beneficial to the government and society than managing for sawtimber production.

    Recently, Michael Farrell, Director of Cornell University's Uihlein Forest in Lake Placid, developed a spreadsheet that allows users to conduct a Net Present Value (NPV) analysis for managing an individual maple tree for timber production or leasing for syrup production. There are many variables that affect this analysis, but in most cases the NPV is higher for leasing taps then it is for managing for sawtimber production. The spreadsheet and related documents (including a users guide, PowerPoint presentation and explanation of the variables) can be accessed at www.cornellmaple.info

    We are excited about the opportunity to work with the NYSDEC to make the necessary changes that will allow maple producers greater access to tappable maple trees. Thank you for your time and consideration.
  4. Angie Berchielli - Pursuant to Executive Order No. 25, I wish to make additional comments on Part 190 of 6 NYCRR. I have two specific comments.
    Comment 1
    Part 190.8 W 3 and 190.8 W 4 unnecessarily restricts the placement and use of tree stands, hunting blinds and trap appurtenances (cubbies, buckets, stands etc) to during the respective season. This is an unnecessary burden on hunters and trappers because many of these devices take considerable time and effort to erect and place. In addition, these devices are more effective after the local wildlife becomes accustomed to their presence. It would be safer to erect a tree stand before the season rather than trying to erect it very early on opening morning. Since these devices are permitted during the season it would be unnecessary and unreasonable not to allow their placement and use (scouting) before the season.I suggest that the appropriate remedy would be to allow their use before the season by amending Part 190.8 W 3 and 4 to read as follows:
    3. a legally placed trap that is placed and used during the trapping season, or a legally placed trap appurtenance that is placed and used during or 30 days prior to the trapping season;
    4. a tree stand or hunting blind that does not injure a tree, is properly marked or tagged with the owner's name and address or valid hunting or fishing license number, and is placed and used during or 30 days prior to the big game or small game seasons; or

    Comment 2
    It would appear that Part 190 prohibits the placement of trail cameras or scout cameras on all state lands. These cameras are left in the forest and automatically photograph wildlife as it passes in front of the camera. These cameras are very popular and are an excellent way for people to connect with nature as I highlighted in my article in the August 2008 issue of "The Conservationist" , DEC's official magazine.

    I cannot find where trail cameras or scout cameras are an authorized recreational activity and they cannot be in compliance (as required in Part 190. b 13) since their use is not governed by any rules or regulations. Therefore, it appears to me and perhaps to other potential users that Part 190 prohibits use of these cameras.
    It is unnecessary to prohibit the placement or use of trail cameras or scout cameras because such a prohibition would eliminate this excellent way for people to connect with wildlife on our state lands.

    I suggest that the appropriate remedy would be for DEC to specify that trail cameras and scout cameras are legal for placement and use on state land by amending Part 190.8 W 1 to read as follows:
    1. a geocache, trail camera or scout camera that is labeled with the owners name and address or valid hunting, trapping or fishing license number and installed in a manner that does not disturb the natural condition of the site or injure a tree;

    I would like to thank the Governor and NYSDEC for this additional opportunity to comment on existing regulations.
  5. Peter Heckman - I support state conservation easement purchases as long as they contain provisions that will allow recreational leases to remain intact. I support multiple use principles for revenue generation, and more importantly, I support restorative economic policies that will create sustainable North Country communities.

    I am a member of a large sportsman's club that will be closed if the Fee Purchase plans are consummated. We have been exemplary environmental stewards for nearly 100 years and DEC could never match our stewardship standards. Our organization is willing to provide stewardship agreements that can be included in easement agreements.

    I support working forest initiatives, and oppose placing productive forestland into the Forest Preserve. We have done an economic impact analysis and can prove that private ownership infuses at least $400.00 per acre per year into New York's economy. Over $24 million in New York State GDP is at stake with the Finch Pruyn deal.

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Law Enforcement Regulations

  1. Steven Bick, PhD, ACF, CF, Northeast Forests, LLC. - If this is a sincere effort by the department to streamline regulations, you must immediately return the responsibility for routine stream crossing permits for timber harvesting activities to the NYS Forest Rangers. The rangers handled this duty very well in the past and developed strong working relationships with the industry, transferring many good ideas to them for protection of streambeds and related resources. The current situation is inefficient and unwieldy. In some cases, I believe it has led to non-compliance. The purposes of the department should be to protect water resources, rather than to look for excuses to hand out violations. The previous system with the rangers worked very well.

    The other thing this would accomplish is to free up the time of the ECO's for their traditional and very important duties.
  2. Anonymous- I am writing to voice my absolute disgust with the NYSDEC regarding law enforcement regulations. As part of the NSLGA, I received a copy of the newsletter outlining the results of the sting operation to stop illegal pesticide applications here on Long Island. With the rising fees that I'm not going to complain about here, I would expect better enforcement than catching 6 contractors (two from the same company) over the span of three weeks. In the course of my daily business, I could find 6 illegal applications happening EVERY DAY! Really, what you are doing amounts to TAXATION WITHOUT REPRESENTATION. I would be all for doubling, tripling the fees we need to be legal, but DO SOMETHING!

    I honestly don't know why I bothered over the last 2-3 years to take down the license numbers of the illegal contractors I see, NOTHING HAS BEEN DONE.
    Sincerely, A fed up small business owner.
  3. Dawn A. Rucando - Seeing someone throw a cigarette butt in the Salmon River or on the ground (anywhere) should be not overlooked and deemed "Not worth an officer's time".........it SHOULD be chargeable and the fine should be over $200!

    I see this all the time. It should be called "A crime against the EARTH" or a "Green Crime." Also, anyone within 10 feet of litter..........whether it's theirs or not, should be made to pick it up and it should be a crime for ignoring it! That would make more people responsible and not turn a blinds eye!

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Mineral Resources Regulations

  1. Mitchell L. Bush, President, New York State Bluestone Association - The New York Bluestone Association would like to submit a number of comments identifying current rules, regulations, policies and their subsequent interpretations as they relate to the Codes, Rules and Regulations of the State of New York (6 NYCRR) which directly affect the New York State Bluestone Industry. The New York State Bluestone Association members and other Bluestone businesses are currently regulated, by a number of New York State Department of Environmental Conservation (DEC) state regulatory divisions, along with other state departments, Federal and Local regulatory agencies.

    The Division of Mineral Resources regulates aspects of mining (6 NYCRR Subchapter D, Parts 420-425), the Division of Environmental Permits, regulates and administers permit applications (6 NYCRR Part 621 and Part 617), and the Division of Waters Resources (6 NYCRR Articles 17 and 70, State Pollution Discharge Elimination System Permits, Industrial Activity Permits), regulates the issue of storm water runoff from mine sites and haul roads related to the Bluestone Industry.

    Each regulation / policy affecting the Bluestone Industry is listed below by Division:

    Bonding / Regulatory Fees:
    The current economic times have increased fiscal pressures on the New York State Bluestone Industry include cost of Bonding and Regulatory Fees. The Bluestone Industry is a small business orientated industry with many small operator/owners and therefore subsequently smaller sized mining operations. These small businesses and individuals are less likely to have sufficient capital to adhere to or comply with State laws, regulations and policies related to bonding and regulatory fee structures.

    Mined Land Reclamation bonds in New York State currently average $5,500.00 to $6,500.00 per acre for Bluestone Mines. This bond rate is based on a system of full cost bonding, requiring the mine operator to place a reclamation bond on a permitted mine site for the full cost of the state to reclaim the site in the event the mine operator is unable or unwilling to reclaim.

    Insurance bonds are just not available in New York State. Most Insurance Surety Reclamation Bond Companies have left NYS due to the cost of doing business in the state. The use of full cost bonding by the DEC, rather than the previous performance bond system has driven a large number of bluestone operators to either reduce the number of permitted acres or to drop out of the industry all together. Combining the lack of effective insurance surety bond availability, along with the high cost of bonding, most mine operators have to either produce a bank letter of credit, bank certificate of deposit or cash bond. All of these bond types require high levels of capitalization which is not available to most if not nearly all bluestone mine operators. What full cost reclamation bond effectively does is requires a mine operator to pay twice for reclamation of the site. They pay for the full cost of the initial mined land reclamation bond and the then the actual cost of reclamation of the site. In order to maintain the viability of the Bluestone Industry a solution must be found.

    Annual regulatory fee structure for permitted sites, ($4,000.00/per year - > 30 Acres Affected, $2,000.00 / per year - > 20 Acres and equal to or less than 30 Acres Affected, $1,500 / per year - > 10 Acres and equal to or less than 20 Acres Affected, $900.00 / per year - > 5 Acres and equal to or less than 10 Acres Affected, $700.00 / per year - > equal to or less than 5 Acres Affected), has become cost prohibitive for the almost all, even including the largest bluestone operators. This fee schedule puts the New York Bluestone operators at an economic disadvantage with Pennsylvania Bluestone operators.

    Add the cost of bonding to the costs of the mine permit annual fee along with costs associated with other annual regulatory fees and compliance issues, only larger quarries will justify the cost of regulatory compliance.

    Reclamation:
    Recently, the issue of reclamation has become a serious issue of contention. What had been previously negotiated between landowners, Bluestone Industry and the Department appears to have been forgotten. In its' place is an assortment of personal interpretations of what is acceptable and what is not. The sense of never being able to satisfy the Department is prevalent throughout the industry. When no clear, concise program of regulatory enforcement is in place, then the degree of regulatory participation will decrease accordingly. As an example, current interpretation of regulation of 422.3 (e), by certain staff members is interpreted to mean that reclamation is not to be approved as completed until the end of a two (2) year term has expired. This example causes undo cost (annual permit fee) and additional trips to site for inspections for no real environmental or economic gain by anyone but the state.

    Additionally, the current atmosphere of mistrust and perceived non-compliance between certain Mineral Resource regulatory entities and the Bluestone Industry in general is unacceptable. Neither the Bluestone Industry nor any of its' particular individual members are trying to abandon their responsibility to protect the environment. There seems to be a clear disconnect between what is expected, required and physically possible to accomplish.

    Blasting:
    Blasting is a technique commonly used within the Bluestone Industry to remove solid cap rock and overburden. A very large percentage of Bluestone mine blasting occurs infrequently (annually or semi-annual stripping episodes) and consist of very small overburden blasts (typically under 400 pounds of explosives). Large Bluestone quarry operations (10 - 20 acres affected area) conduct the same annual / semi-annual stripping episodes, and additionally conduct at most daily to semi-daily production blasts typically consisting of very minimal explosive use, other than detonation cord.

    Detonation cord is used to move large blocks of solid Bluestone away from the rock face to facilitate removal. With proper stemming and use of water or slurry these blasts produce minimal vibration or air movement. Recently, in conjunction with the Bluestone Association new blasting regulations were adopted for larger operations with no changes to those small bluestone operations which do not exceed a certain threshold n blasting. An over-heightened attention to unsubstantiated complaints has moved certain Division of Mineral Resource staff to require additional blasting requirements, which are far more than required for the typical Small Scale Bluestone Operation.

    Particularly, the condition requiring the pre-notification of adjacent residences is cumbersome, unnecessary and troubling as an additional level of compliance for no warranted reason. Additionally, the use of a seismograph during each blast event seems excessive, and the further requirement that the seismograph be placed at the nearest residential receptor causes concern among the members. Bluestone industry quarries are typically very remote from most residential receptors and this requirement adds cost and risk of unwarranted attention unnecessarily.

    Final Comments:
    The preceding comments were meant to be constructive criticism of the current DEC regulatory system and implementation. As a general rule the Divisions of Mineral Resources Water Resources and Environmental Permits have applied the rules and regulations evenly and appropriately. The degree of frustration within the Bluestone Industry is caused by the unreasonable and capricious application and interpretations of rules/regulations and policies implemented by specific individuals within the Department. The apparent total lack of control and ability to get all individuals within the umbrella of the DEC to abide by the same rules / regulations and policies is the pre-eminent cause of undue cost, delay and enforcement actions under the current rules and regulations. Until this situation is resolved no real working relationship can be obtained or expected.

    It is the opinion of the New York State Bluestone Association that New York State cannot claim to be the Empire State. Fees, excessive permit restrictions, bonding costs, bureaucratic entanglements, lack of reasonableness of certain individuals, the follow-up lack of accountability and control of individual employee and the ever present use of threats of enforcement versus attempting to modify behavior has caused a separation between those responsible for protecting the environment and those who actually work with and make a living from the use of natural resources found in New York State.

    (Additional comments from this letter may be viewed under Environmental Permit Regulations and Water Resources Regulations.)

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Solid and Hazardous Materials Regulations

  1. Bruce Karas, President, Custom Lawn Care Inc. - N.Y.S. licensed pesticide applicators have been singled out and forced to submit to unnecessary contract regulations. We are forced to do such unrealistic things as predict up to two years in advance when we will apply pesticide applications. I mention two years only because it is also an unnecessary regulation that our contracts can only be valid for two years. I can't imagine any other business that operates in this state being forced to predict the future dates of work that is based on weather conditions and unknown problems which may or may not be caused by outbreaks of disease and insect infestations. We also have been told that it is illegal for professional landscape companies to subcontract pesticide applications. This is like telling a company like Sears that the mechanics in their automotive repair shops cannot decide what parts to use when repairing cars. Once the list of parts needed is given to the customer he must decide which brands and parts are needed for the repair or maintenance of their car and then go out and buy them themselves and also decide the day they are to be installed. The D.E.C. has even gone so far as to demand that twelve point type must be used for certain parts of the contract and then redefine the definition of twelve point type. Universally excepted twelve point type is 1/8th of an inch for the tallest letters. We have been told that NO letter can be less than 1/8th of an inch which almost doubles the size of twelve point type! To further unnecessarily burden the professional pesticide applicators each contract must have an original signature on it. If a company has two thousand customers which they plan to renew, an authorized person must sign every one, rather than have the signature printed on the contract.

    These are only a few examples of how well intentioned legislators have been used as pawns by so called environmentalists. Every time a new regulation is passed it is the goal of these extremist organizations to make it as difficult as possible for legal licensed applicators to comply with the law. Once the laws are passed there is never enough money available to enforce them. This further frustrates those who comply with the law when they see others constantly breaking it and getting away with it.

    In closing, I can envision a day when pesticide pollution will be totally out of control in New York State. If the legislature continues to pass laws which increase pesticide use by the untrained, unlicensed, residents of the state that day will soon come. The most recent example of this was the unacceptable increase in applicator fees.The priority should be to pass legislation which is clearly understandable, enforceable, and which makes it more difficult and more costly for the untrained homeowner to apply pesticides, than it is for the licensed applicator. Please stand up for common sense approaches to this problem before it's too late.
  2. Michael Deutsch, Urban Entomologist - The fee schedule regarding the renewal of pesticide applicator certification is "out of touch" with common sense. Pesticide applicators in NYS pay more than medical doctors for renewing their licenses. The average NYSDEC commercial certified pesticide applicator simply cannot afford these fees. If an applicator has three sub-categories, say for instance (7a,7f,7c), that applicator will drop two sub -categories because the cost of renewing all three is prohibitively costly. The result is that you have applicators performing work that, "technically", they are not certified to perform. They will not attend re-certification training in the "dropped" sub-categories and their skill development will suffer terribly. They will, however, continue to work in those sub-categories in which they are under-trained. This will result in exposing the public to potential health risks due to the lack of skill up-dating on the part of the applicators. Since they do not need CEU's in categories they have dropped, they are likely not to attend skill-building training seminars. This is not the original intent of the national certification programs. I believe it's only a matter of time until we are faced with a major public health problem.
  3. Michael Deutsch, Urban Entomologist - I do applaud the efforts of the NYSDEC to make the certification exams more difficult and I also applaud the NYSDEC for making the instructor qualifications more restrictive. Anyone doing training for NYSDEC primary training and re-certification classes for CEUs must be a qualified individual in the specialty they are teaching. There should be another category for instructors. People with college level degrees with a minimum of 19 credits in Entomology or closely related college work AND have at least 7 years of field experience in pest management, AND pass a state qualifying exam should be the minimum qualification to be an instructor.

    Individuals with 4 year college degrees in Entomology and/or in a closely related field would need to demonstrate a level of knowledge about pest management by taking a qualifying exam. I lieu of the exam, having a BCE designation would suffice. Individuals with Master or a PhD may need to submit a written resume to be examined by a designated committee of some type capable of judging the applicants educational credentials and work experiences and have the ability to grant some type of training certification. These are just some ideas and are certainly open for discussion.
  4. Bruce Herlich, Long Island - I understand that you are soliciting comments on existing DEC regulations per Governor Paterson's Executive Order 25.
    Please note the following in regards to DEC regulations:

    - The pesticide examination 'sit down' fee of $100 is excessive.
    - The business registration fee of $900 for three years is repressive.
    - The Certified Applicator fees of $450 for three years for the first category and $150 for each additional is ridiculous.

    The result: I have not renewed my business registration this year. Also, I have dropped all of my categories except 3A/3C.
    The consequence: Experienced applicators like me that run small businesses, and make a very small number of applications will no longer be doing this work. Large companies that hire largely inexperienced operators will be caring for the environment. As my kids would say "good luck with that".

    I hope you will reconsider the fees. Legislating small business out of business will not help the economy recover and consequently will not help cure the budget deficits.
  5. Randy Kwasnik, Valley Stream- Here is letter to voice objection to FEES recently Increased.
    As a small business owner, as many other I feel the recent increases are unjust. I understand fees like everything increase. But double, come on Now! If I were to double my prices to customers at least they have a choice & know what that outcome would be. Loosing a lot of business. The only choice me & others had was to pay up! That's ridiculous.
  6. David E. Williams, Jr., Williams Lawn Care, Inc. - As I understand it, comments are being welcomed in relation to Governor Paterson's Executive Order No. 25, the Regulatory Review and Reform Program.

    I own a small lawn care business that services approximately 750 clients in the Buffalo, NY area. We apply fertilizer and some pesticides such as weed control and insect control.

    I have comments on 2 NYS regulations.

    First is in regard to the NYS Pesticide Reporting Law. I can understand how the law was originally passed. What legislator is going to vote AGAINST a law involving breast cancer research? Sometimes laws have good intentions, but have no relevance. I've always felt that this regulation would not produce any relevant data that could possibly correlate pesticide usage to breast cancer. Even if there were some anomalies noticed, it could be for so many reasons. For example, people that are likely to have their lawn treated may also be in a demographic group that is likely to have a lifestyle that may increase their likelihood of developing cancer. It could be any number of things and have nothing to do with the fact that they have their lawn treated for weeds.

    Having fulfilled my obligation since this regulation started in 1996, I'm very familiar with the paperwork needed to produce the required report. I feel that this regulation is an unnecessary burden on lawn care businesses. It takes a great deal of time to keep track of the needed information to produce the report.

    Secondly I would like to comment on the Neighbor Notification Law, which requires 24 hour written prior notification to adjacent property owners when liquid pesticides are applied. I don't know where to start to explain why this is an unnecessary regulatory burden on NYS lawn care operators. First of all, the general public doesn't care about being notified when their neighbor is having a lawn care treatment involving something like weed control. Obviously it must be admitted that there are some 'fringe' type people that support the idea, but from personal experience in contacting neighbors, the general public doesn't care. So why burden us with mandatory notification? As an industry we are united in offering to provide prior notification to those that request it.

    One of the major intentions of the regulation is so that the neighbor can protect his property from potential spray drift. The reality is that drift is a non-issue. If drift was an issue, the applications would be walking around with soaked pants as they would be walking right into the supposed spray drift. As a professional applicator for over 27 years I can say that spray drift is only an issue if someone was to spray on a windy day. This is already regulated as a non-target pesticide violation. I can go on, but basically this is a tremendous burden that in my view is unnecessary.
  7. No Name or Affiliation - Hi, how are you. I am writing because I would like to express my concerns on the new fees for pesticide applicators. I feel that it is outrageous. I could understand a small raise but not double the amount. $900 every three years for the pesticide business registrations fee and $200 per year for pesticide applicator license is crazy, where before it was half the amount. I feel that the fees should be brought back down to where they were because it isn't fair to us, the applicators and business owners. Our customers do not want there prices raised and if we do raise them they will go out and apply pesticides themselves and most likely will over apply and contaminate the environment and that is something that the DEC doesn't want because they are all about protecting the environment. We, the legitimate applicators who are trained to apply pesticides safely and who obey the laws shouldn't have to suffer. If you feel that the increase will prevent illegals from applying i feel different. i think there will be more illegals applying and contaminating the environment since they will not want to become legit since the fees are ridiculously high. So please, reconsider and bring down the fees to what they were. Thank you.
  8. Randolph McNeil, Blue Sky Landscaping Services Inc. - I write you today to express the continually increasing burden being placed on my business. My name is Randolph McNeil and I own and operate Blue Sky Landscaping services inc in Queens N.Y.. I am a very small business struggling to make ends meet, as the state, city and everyone else is, in these tough financial times. This year I was hit with a newly "made up tax" called an MTA tax. Funny...I don't use the subway or buses nor do my employees. None the less it is more money out of my pocket.

    Now this year I am informed that my pesticide applicators license and my DEC business registration fees will and have shot up greatly. More money out of my pocket. I can understand increases in small increments over time, but not to double in one year. With the economy the way it is , I have not been able to raise prices on my customers last year or this season coming! So where do I get the additional monies?

    I have worked with a business coach and my accountant and have streamlined to the Max....there is no where left to trim. Maybe the agencies raising fees could try the same thing without bureaucracy and special interest involved! Again it feels as if The State, and for me NYC, are trying to squeeze the small business owner and the middle class out!!!

    Guys we need a break too! Reasonable increases can slowly be absorbed. but doubling?
    The fees in effect need to be reviewed and changed!! It is an unfair practice to pull a high number out of the sky and to impose your balanced budget on small business!!!
  9. Gerand J. Short, President, Jimrod Landscaping, Inc. - I was recently made aware of the proposed increases affecting our industry. This is just an easy way to increase the states revenues without any thought to small businesses. Another example of this is the new MTA tax. That tax is absurd!! I guess just increase the tax to business is the easy way to do it! You know we have budgets too. Please put in my note that I strongly object to these new proposed increases to our industry!

    Pesticide Applicator Examination Fee: $100 per exam.
    Pesticide Business Registrations Fee: $900 every three years.
    Certified Commercial Pesticide Applicator and Technician Fee (except if certified in 3A only or 3B only) $450 every 3 years for first category or subcategory and $150 every 3 years for each additional category or subcategory.
    Certified Commercial Pesticide Applicator and Technician Fee (if certified in 3A only or 3B only) $200 every year.
    Commercial Permit Fee: $600 every two years.
  10. Agostino Miele, Miele Landscaping Co. - I am writing to comment on the Department Of Conservations existing regulations. First, too much paperwork - too numerous to mention.

    Second, when applying herbicides to a lawn with a 32 ounce container you need not notify the neighbors, but when using anything above you must notify. This makes no sense to me. Maybe I am ignorant? Does using a herbicide in a 32 ounce container have less of a threat or impact to neighbors as compared to anything greater than a 32 ounce container?

    How about neighbor notification kicking in at any container above 5 gallons, so we can work with a little peace and less contamination to ourselves and the environment? Example: Less frequently will you have to fill a 5 gallon backpack and its less messy. Filling a 32 ounce container means more frequent re-filling, more risk of spillage and contamination to the environment and ourselves.

    Further, holding a 32 ounce container means holding farther above ground to apply and increases chance of drift. With a 5 gallon backpack you have a longer hose and wand which hover right above ground. This has far less potential for drift. No less pesticides are applied using a 32 ounce container.

    Third, I apply organic herbicides on lawns, and need to follow most of the same rules. Example: I apply a weed and feed (liquid and all natural) to lawns and need to apply to weeds 3x in about thirty days to be effective. This requires posting 3x. I also use this same product as a fertilizer and need only apply 1x. Why do I need to post for that 1x when it won't kill any weeds applied in that manner?

    Fourth, D.E.C. encourages the use of Integrated Pest Management. I like using I.P.M., however how can one construct a proper contract when one does not know approximate dates and costs due to the fact one does not know severity of the pest or if a pest may even occur? Why not have a signed contract indicating an agreement to apply any necessary pesticides if needed with attached labels of pesticides to be possibly applied. Indicating costs only adds confusion, frustration and unclarity between applicator, homeowner and D.E.C. I see no need for D.E.C. to know costs of application. That is between my clients and me.

    Is it possible to adjust some of these burdensome regulations? It is difficult to comply with all these regulations.

    Lastly, are homeowners targeted by D.E.C. enforcers? I do not see it or hear of it. They buy pesticides without a license and apply them liberally without posting and notifying there neighbors. I continually witness this. They are the biggest polluters to the environment, but it seems like you guys do not look out for this. You target us, the hard working, and licensed, professional applicator and fine us hefty fines for small offences. This shows a bias. How can we trust you to be who you say you are (protecting the environment)? We the people watch and see you operate.

    I believe in regulations, but clearly we are over regulated. Even D.E.C. personnel have expressed this at landscaper shows and conferences. Thank You !
  11. Ronald DeBeer - I appreciate the opportunity for commentary. The cost of the 3 permits that it takes to keep my business legal is 2200 dollars every 3 years. Could you please consider rolling these fees back to more affordable levels. We run a small custom spraying business . Our clientle are dairy farmers, with the difficult economic condition they are in we could not pass these fees on to them. It just seems as if we work harder every year and there is less left. Something else I don't understand why our neighboring states go by EPA registration of pesticides. The DEC has to have special considerations for pesticide regulation. In some instances a more economical or enviromentally friendly product is available, but we can't use it because it to expensive to reprove in New York. Please, could you stream line your product registration procedure. Thank you for your time.
  12. Sharon Hornbeck, NYSSA - The New York State Seed Association is grateful for the opportunity to comment on the Department of Environmental Conservation rules pursuant to Executive Order 25. As residents and environmentally conscious individuals we appreciate the need for common sense regulation of pesticides and seed treatments, and believe that the regulatory process may be improved to the benefit of the producer, the taxpayer, the seed company and the environment.
    We believe that the duplicitous, costly and delayed approval process of new and improved plant protection products in New York is problematic for many reasons.
    For example, when a new crop protectant or seed treatment is introduced, and cleared by the Federal Environmental Protection Agency (EPA), it is available for use in most of the country, but not in New York. Here, the NYSDEC undergoes a complete new round of testing and review on these products. This process takes years, and during that time, the New York agricultural community cannot legally use the product, although our competitors in most other states and nations can. Not only is this an economic disadvantage, many of the newest technologies are more environmentally and user friendly than older pesticides and plant protection products.

    Here is but one real world example. In late 2006, a New York seed company invested in a specialized piece of seed treating equipment. (~ $100,000.00). This investment was made in an effort to remain competitive with seed processors from outside of New York. In December of 2006, the NYSDEC ruled that the application of the seed protectant Poncho (active ingredient Clothiandin) was not allowed in New York State, but the sale of the treated seed was...despite the manufacturer of Poncho having gone thru a complete testing procedure. Out of state companies could legally apply Poncho to seed, and ship it into New York. Poncho used as a seed applied insecticide eliminates or reduces the need for an insecticide to be applied directly to the soil, or by spraying on the plant post emergence.

    Due to this ruling the company had to relocate the equipment to a Pennsylvania location, install it, and then proceed to ship New York grown seed to Pennsylvania for treatment, and ship it back. This cost the company and its customers thousands of dollars in excess and unnecessary costs, not to mention the jobs which went out of state, or the wasteful fuel consumption required by the extra transportation.

    In March of 2009, the NYS DEC finally allowed Cruiser, (active ingredient Thiamethoxam) a product of similar chemistry and efficacy to Poncho, to be licensed for application in New York. This approval is about 6 or 7 years behind the rest of the nation, but finally gave New York companies a means to compete.
    The regulatory process in New York is redundant to the Federal EPA process, and costs crop protectant licensee's excessive additional expense. The result is many choose not to attempt to obtain New York State registration, particularly for many vegetable and fruit crops, as the cost outweighs the benefit. This is a disservice to the licensee, seed companies and agricultural retailers, farmers and the environment, as these new EPA approved products could bring economic benefit and safer products to the producers and consumers of New York State. This unnecessary duplication of effort is also very expensive for a fiscally desperate State of New York.

    On behalf of New York's farmer producers, consumers, taxpayers, the agricultural input service providers, and seed companies, we respectfully request that the Department use the Federal EPA standards and enable the New York agricultural industry to remain competitive, compliant, and on the leading edge of environmentally responsible food production.
  13. Patrick Parker, Plant Health Care Program Director, Nature's Trees, Inc.- Nature's Trees, Inc. d/b/a SavATree/SavaLawn has been conducting business in NY State since 1980 and currently has seven locations in the state employing over 200 people including 40 NY Certified Commercial Applicators and Technicians. We service over 8,000 clients in NY, performing approximately 35,000 pesticide applications during the course of each calendar year. These services represent a value of over $ 6.5 million to the NY State economy. Based on our experiences we find the following regulations to be unduly burdensome to conducting business in New York for the reasons outlined below. Given the current state of the economy we appreciate your attention to these comments as we feel that any activity that hampers our ability to successfully conduct our business must be scrutinized to ensure that it is absolutely necessary.

    1. Section 325.40(a)(3): This regulation states that a commercial lawn care contract must state the total cost of the commercial lawn application service to be provided. Further guidance from your department states that the total cost of commercial lawn care applications must be separate from any costs for other services on the property. However the underlying statute (33-1001.1) states that the "number of applications" and "total cost for the service to be provided" must be included in the contract. We believe that separating out the total cost of the commercial lawn applications from the total cost for the service to be provided is confusing to the property owner regarding the true cost of the services being provided. This may lead to under payment for the services provided and/or a loss of confidence in the commercial lawn care business if the client believes they have been misled regarding the cost of the full service provided. It would be awkward in many instances to create two contracts (one for commercial lawn applications only and one for other services to be provided) when all of the services being provided are requested by the property owner to care for their property. We feel that this regulation should be amended to reflect the wording of the statute and allow a total cost of all services to be provided to be stated in the contract. This would better reflect the intent of the statute to have the property owner understand the true cost of all of the lawn care services (whether or not they are commercial lawn applications) provided by the commercial lawn care business.

    2. Section 325.40(a)(7): This regulation states that the pesticide applicator business must obtain written proof of acceptance of contract amendments including a contract renewal or multiyear contract before applying pesticides. An allowance is made for prepayment as a form of written proof of acceptance but only if it is for the full amount of the services stated in the contract or for the full amount of the commercial lawn applications only. Both voice and electronic communication are a standard form of business practice and have been recognized by the courts as acceptable and binding. This regulation should be consistent with standard business practices and should allow authorized changes to contracts however they may be communicated by the owner or owner's agent to the pesticide applicator business. Forms of acceptance should include not only checks but credit card authorizations, email/text and website authorizations, and properly documented or recorded phone/voice authorizations. Property owners can be difficult to track down to get actual signatures and allowing other recognized forms of authorization will allow commercial lawn applicator businesses to use their resources more productively than trying to track down signatures. Additionally partial prepayment of a contract should also be allowed as a form of written acceptance particularly when the payment corresponds to a contract amendment adding additional services.

    3. Section 325.40(h)(4): This regulation requires the posting of visual notification markers every 50 or 100 feet around the perimeter of treated properties. We feel that this regulation is excessive because of the astronomical number of visual notification markers that need to be used. The excessive number of signs: 1) Creates a large amount of litter and wasted paper. For our company alone this regulation requires us to use approximately 350,000 signs and plastic stakes per year. Much of this excess paper and plastic ends up as litter or garbage since often the signs are not removed by the homeowner after 24 hours and are left to wash away in the rain or to blow away in the wind, littering streets and neighboring yards. 2) Creates an unnecessary burden to businesses due to the costs of printing the markers and the additional labor required to post so many markers. These extra costs must be passed onto the property owner and this can reduce the opportunity to do business with some property owners. 3) Creates an unnecessary burden to the property owner who has to spend more of their valuable time to remove and dispose of the vast number of markers required to be posted. This regulation should be altered to require the posting of signs at "clearly delineated points of entry to the treated property" such as walkways, driveways, etc. When required along a perimeter (if the perimeter is an obvious common point of entry), the spacing of the signs should not be less than 150 feet between signs (this distance has worked well in other states such as Connecticut). Posting at clearly delineated points of entry is sufficient to protect the public since most people will enter the property through the clearly delineated points of entry rather than randomly crossing property lines. Posting at clearly delineated points of entry will also satisfy the underlying statute which states that markers should be placed "within or along the perimeter...clearly visible to persons immediately outside the perimeter" as we do not believe that posting at 50 foot intervals is necessary to meet this requirement.

    4. Section 325.40(h)(6): This regulation requires the posting of at least two visible notification markers per each area or premises treated. We feel this provision is unnecessary and should be removed since there are situations where a single sign will suffice (i.e. a single entrance to a gated property, a courtyard with a single entrance, etc.). An exception is already made within the regulation itself for a treated individual tree or shrub to be marked with only one marker if it can only be approached from one direction. Since there are other situations where one marker will be sufficient to meet the intent of the statute, we believe that the minimum number of signs to be posted in each area or premises should be determined by the layout of the treatment area, not arbitrarily by regulation as this results in the unnecessary use of markers and the associated issues discussed in #3 above.

    Thank you for the opportunity to comment on these regulations. Please do not hesitate to contact me if you need more information or would like to discuss our comments in more detail.
  14. Andrew Sauciunac, VP Operations, Precision Photo-Fab, Inc. - New York State Department of Environmental Conservation has invited comments from regulated entities and interested parties to identify existing regulations that impose unnecessary, burdensome or excessive costs, paperwork, reporting or other requirements.

    We think we have a clear example that fits all of these, and pursuant to Executive Order No. 25, I am requesting my comments to be considered for further action.
    We continue to request approval (started in 2005) to have our "spent" Ferric Chloride solution (FeCI3) categorized as allowable for reuse/product substitution. The Spent FeCI3 is generated by our etching process exhibits hazardous waste characteristics of corrosivity and toxicity (metals). PPF's intention is to sell the "spent" FeCI3 to another facility as a commercial product, and be used as a substitute for commercially available ferric chloride.

    The Spent FeCI3 does not contain toxic levels of metals that interfere with the solution's capabilities to function in place of the "virgin" materials. It has been fully evaluated with documented acceptance by Clean Harbors Environmental Services, Inc. ("CHESI"), the proposed receiving facility. It is very similar to materials being supplied by other facilities to them, with like metal contents, which have received their states allowance for reuse.

    Materials are not solid wastes when recycled, which includes being used or reused as effective substitutes for commercial products. We have been notified by the NYSDEC, in multiple correspondences, that we cannot manage our "spent" FeCl3 as a reuse material based on the criteria of "toxics along for the ride" ("TARs"). NYCDEC has gone on to explain that here are instances where the presence of modest levels of toxic metals would not fail the TARs criterion. These instances are when the material would both (1) be used as a treatment chemical to treat a waste in an existing treatment system designed to subsequently treat those metals and (2) have a "mass load factor" of 0.39 or less.

    Our assessment from the correspondence to date is that the "mass load factor" requirement is an arbitrary test created by NYDEC and is not being applied by other states. This seems to run counter to the EPA rulemaking process in which the preamble states that the evaluation for reuse should encompass both the characteristics of the material and the circumstances of the recycling. EPA did state that the material should be substantially similar to the virgin material, but need not be identical, or even close in composition to the virgin material. It must be substantially as effective as the virgin material and not cause any unacceptable risk to human health or the environment in the specific recycling activity.

    In addition, our concern is that the "mass load factor" requirement is not applied to the "virgin" FeCI3. In the case of FeCl3 generated from steel pickling, the pickle liquor can contain these same metals of concern in varying degrees. In the pickling process, hydrochloric-acid is used to remove rust and mill scale from steel. In the process it also picks us certain other metals that are either a contaminant in the raw ore, or are alloyed into the steel to produce ductility, strength, corrosion resistance, or other desired properties. These include metals such as nickel and chrome.

    We currently have documented correspondence with Clean Harbors Environmental Services, Inc. ("CHESI") in Cleveland, Ohio explaining that they already use "spent" FeCI3 as a chemical commercial product substitute in their wastewater treatment process (from other suppliers) as a catalyst for oxidation of phenols, precipitating agent for phosphate wastes, or for simple neutralization reactions in its wastewater treatment process. CHESI has fully analyzed
    our "spent" FeCI3 (Profile CH346535RB) and stated that it shall be utilized in CHESl's wastewater treatment system as a substitute for "virgin" ferric chloride in accordance with 40CFR 261.2 (e) (1) (ii).

    CHESl's incoming inspection of the "spent" FeCI3 will consist of the same analysis and specifications as virgin product purchased for an equivalent application. CHESI states, "These inherent heavy metals are treated to disposal standards as part of our existing wastewater treatment process." CHESI further explains their stringent incoming sampling and acceptance criteria as well as their planned actions in the event of a problem with their process. According to CHESI acceptance of the "spent" FeCI3 is based on: (a) an iron content of 2.5% or greater, (b) nitrate compounds are non-detect, (c) neutralization and oxidation potentials comparable to virgin ferric chloride, and (d) all heavy metals can be precipitated through our normal processes with no additional treatment necessary (all chromium must be in trivalent form).

    CHESI states, "If any of the above criteria are not met, CHESI will not approve the streams for use as feedstock and [they] will identify it as a waste. In the event that an already approved profile does not meet specifications above or will cause problems systematically with our treatment, [they] will either reject it back to the generator or accept it as a waste and treat it accordingly."

    CHESI goes on to state that the material has been demonstrated to be an effective substitute for virgin ferric chloride. The "spent" FeCI3 is more economical to use as an ingredient in another production process than other materials and is therefore an effective commodity. As a commodity, it will be handled in a manner to reduce the likelihood of spills, leaks, and contamination.

    It is our belief that the proposed reuse and recycling of PPF's "spent" FeCI3 to CHESI is a legitimate commercial recycling process. The toxic constituents will be managed in an environmentally protective manner according to state and federal guidelines. The overall benefit of recycling or reuse of the material is appropriate and encouraged by the EPA.

    Since states are allowed to have regulations that are more stringent than the requirements of RCRA, NYSDEC is allowed to enact any standards that they wish, and little can be done. During our correspondence with the NYSDEC, we have been told that this is not an effort to be more stringent, but simply the correct interpretation of the federal regulations. We respectfully disagree.

    Below is a list of the departments that we are aware of in support of the reuse and recycling of "spent" FeCl3 and are not applying the "mass load factor" test.
    a. OEPA NE District
    b. Indiana Department Of Environmental Management, Technical compliance section, Office of land Quality
    c. OHIOEPA, State of Ohio Environmental Protection Agency, Northeast districtOffice, Division of Hazardous Waste Management
    d. Alabama department of Environmental Management, Environmental Compliance and Enforcement section, Industrial Hazardous Waste Branch, Land division
    e. State of Washington Department of Ecology
    f. USEPA and Ohio EPA
    g. North Dakota Department of Health, Environmental Health section, Hazardous
    Waste program, Division of Waste Management
    h. Department of Environmental Protection, Florida, Bureau of Solid and Hazardous Waste

    This reuse is an industry accepted practice throughout the United States, and as a result, if not deemed acceptable by the NYSDEC, will continue to place our business at a very substantial competitive disadvantage. The reuse allowance will allow us to reduce our environmental management costs, disposal costs, hazardous waste generation, RCRA compliance liability and allow us to compete with our out of state competitors that are allowed to utilize the reuse exemption for their Spent FeCI3. We have initially estimated our savings to be $100K/year with an expectation that the impact will grow year after year. The estimated cost saving of this reuse includes;
    1) Elimination of Treatment Costs
    a. Chemicals
    b. Labor
    c. Equipment
    2) Elimination of Disposal costs
    a. Landfill (subsequent F006 Sludge)
    3) Elimination of Compliance costs a. NYS fees
    b. NYS taxes
    c. Paperwork (manifesting, etc)

    It is our opinion that our comments describe and quantify a clear burden and suggests appropriate remedies that the agency may undertake to eliminate or amend regulations that are unnecessary, unbalanced, unwise, duplicative or unduly burdensome.

    This is a summary of the issue with the supporting documentation available upon request. I am anxious to discuss this further, and continue to hope for a fair conclusion to this request
  15. Craig W. Turner, Senior Director Public Policy, Buffalo Niagara Partnership - On behalf of the 2,500 employer members of the Buffalo Niagara Partnership, and specifically on behalf of one of our members, Precision Photo Fab in Blasdell, NY, the Partnership requests approval to have "spent" Ferric Chloride solution (FeC13) recategorized as allowable for reuse/product substitution. Precision Photo Fab has brought this issue to our attention as an existing regulation that imposes unnecessary, burdensome and excessive cost to them in excess of $100,000 annually.

    PPF generates spent FeQ.3 during its etching process, and while the resulting substance has some characteristics of hazardous waste, it is actually considered in reuse as an effective substitute for virgin ferric chloride. In fact, PPF has a purchaser for the spent FeCL3 -Clean Harbors Environmental Services, Inc. (CHESI) in Cleveland, Ohio - which uses spent FeCl3 as a chemical commercial product substitute in its wastewater treatment process. Unfortunately, given the NYS regulation, PPF cannot sell its spent FeCl3 to CHESI, putting them at a tremendous disadvantage with competitors in states such as Ohio, Indiana and Florida, which support the recycling of spent FeCl3.

    PPF reports that CHESI has already fully analyzed its spent FeCl3 and stated that it could and would be used in its wastewater treatment system given the authorization by NYS DEC We are assured that the toxic constituents within the spent FeCl3 will be managed in an environmentally protective manner according to state and federal guidelines; the benefit of recycling or reuse of this material is appropriate and encouraged by the EPA. Unless the
    "spent" FeC13 is recategorized, however, PPF must treat the material as hazardous and incur the cost of disposal. We see reuse and/ or recycling as a better alternative to disposal.Precision Photo Fab employs over 60 in Buffalo Niagara, and is looking to expand within the region. The excessive cost of spent FeC13 disposal is pervasive to that expansion, and we request on behalf of PPF a review of this regulation under Governor Paterson's Executive Order 25, ultimately leading to recatagorizing of the material for reuse or recycling.
  16. Joseph Guglielmo, Joseph Guglielmo Landscape Co. Inc. - As a licensed N.Y.S. pesticide applicator, I would like to see more cooperation between the D.E.C. and Licensed applicators. Currently there is no way (that I know of) to report unlicensed applicators. Who are applying pesticides illegally (including nights and weekends). Also I feel that D.EC. laws and rules enforcement officers should concentrate on unlicensed applicators. It seems as though the enforcement is too heavy handed (especially on petty or small infractions) on licensed applicators, and not enough enforcement on unlicensed applicators. I also feel homeowners that apply pesticides should have to follow D.E.C regulations and rules when applying liquid herbicide we have to notify neighbors when using a backpack sprayer but not when using a 32 oz spray bottle. Using the 32 oz spray bottle is too cumbersome, time consuming and more chance of spillage due to frequent refilling of bottles.
  17. Ilene Miller, Cornell University Environmental Health & Safety - Cornell University would like to request changes to some chemical release reporting requirements currently established by 6NYCRR Parts 595 (Releases of Hazardous Substances) and 597 (List of Hazardous Substances) because they create an excessive reporting burden relative to the associated risks. The changes we are requesting are as follows:
    1. Eliminate or greatly increase the Reportable Quantity (RQ) listed in 6NYCRR Part 597 for the refrigerants listed below with current RQs equal to 1 pound:
    a. R-22 (Chlorodifluoromethane), CAS Number 75-45-6
    b. R-113 (1,1,2-Trichloro-1,2,2-triflouroethane), CAS Number 76-13-1
    c. R-114 (1,2-Dichloro-1,1,2,2-tetraflouroethane), CAS Number 76-14-2

    The current RQ of 1 pound for these refrigerants creates the requirement for facilities to report very small releases to the New York State Department of Environmental Conservation Hotline (NYSDEC Hotline). Such small releases typically do not result in acute health hazards and therefore the low RQ creates an excessive reporting burden for facilities. In addition, both the NYSDEC Hotline and the NYSDEC Regional Offices have the administrative burden to process and close out reports for very small releases of refrigerants.
    The RQs established in 6NYCRR Part 597 for R-22, R-113, and R-114 listed above are inconsistent, relative to acute health hazards, to the RQs for other chemicals listed in 6NYCRR Part 597. For example, the RQ for Ammonia (CAS Number 7664-41-7), which has far worse acute health hazards, is 100 times the RQ for R-22, R-113 and R-114.

    In addition, the RQs established in 6NYCRR Part 597 for R-22, R-113, and R-114 are much lower than RQs established under Federal release reporting regulations including 40CFR Part 302, Designation, Reportable Quantities, and Notification and 40CFR Part 355, Emergency Planning and Notification. This is inconsistent with RQs established for other refrigerants (for example R-11 and R-12) in 6NYCRR Part 597 which are the same as the RQs established under 40CFR Parts 302 and 355. In the case of R-22, R-113, and R-114, there are no RQs established in 40CFR Parts 302 and 355.

    2. Update 6NYCRR Part 595 to require only reporting of chemical releases that exceed the RQs established in 6NYCRR Part 597 over a 24-hour period.
    As written, 6NYCRR Part 595 currently does not limit the time releases occur over for comparison to RQs to determine if releases must be reported to the NYSDEC Hotline. This establishes a requirement for facilities to continuously sum small quantity releases until a RQ is reached, which could be over periods of months or years. To alleviate the burden of having to maintain incremental release records over an undefined period of time, 6NYCRR Part 595 should be changed to be more consistent with Federal release reporting requirements (40CFR 302 and 40CFR 355) which only trigger release reporting when an RQ or more of a listed substance is released over a 24-hour period.
  18. Kellie Bray, CropLife America and RISE - On behalf of CropLife America (CLA) and RISE (Responsible Industry for a Sound Environment) member companies, we submit the following comments as part of Governor Paterson's Executive Order 25.

    CropLife America represents the developers, manufacturers, formulators and distributors of plant science solutions for agriculture and pest management in the United States. CropLife America's member companies produce, sell and distribute virtually all the crop protection and biotechnology products used by American farmers. RISE is a national not-for-profit trade association representing producers and suppliers of specialty pesticides and fertilizers.

    The United States Environmental Protection Agency Office of Pesticide Programs employs more than 800 people to ensure compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Food Quality Protection Act of 1996 (FQPA). Federal regulations apply to people who manufacture, formulate, market, distribute, use, or dispose of pesticide products.

    It costs more than $180,000,000 and can take 8 to 10 years to complete the registration process as EPA employees evaluate the results of more than 150 specific tests and or scientific studies. The EPA will register a new pesticide or re-register an existing pesticide only after it determines the pesticide, when used according to the label directions, will not cause unreasonable risks to human health and or the environment.

    CLA and RISE are concerned that many of the New York Department of Environmental Conservation (DEC) registration procedures for our members' products are not sound science-based and therefore can be deemed as unnecessary, burdensome, and costly. The end result is the prevention of newer, safer products from reaching New York growers, other professional applicators and consumers. These regulatory burdens negatively impact New York's economic development, jobs creation and competitiveness of the affected New York industries.

    Main Points:
    a. New York DEC does not need do its own full-scale review of each product, but should accept the USEPA registration decision. Creating a duplicative system causes excessive cost and paperwork. We urge you to accept more EPA-submitted information to reduce this burden on time, money and human resources.
    b. The New York DEC registration process is not clear or transparent. It's not clear whether DEC is using the best available science.
    c. For reasons not made transparent to the public, DEC has become increasingly unresponsive to many concerns from New York growers, professional applicators, expert entomologists from New York's leading universities, and registrants.
    d. The registrant community needs predictability for registration decisions. DEC has mandated timelines but has very rarely met these timelines. We ask that DEC bring efficiencies to their process by eliminating redundancy with EPA's reviews in order to meet these legislated timelines.

    Specific Concerns with New York's DEC:

    a. We understand the DEC will initiate a rulemaking to change the registration status of total release foggers (TRFs) making these products restricted use. The DEC believes this action is justified because there were 532 FIFRA 6(a)(2) reports over a two year period on TRFs in New York. This means the annual incident misuse rate for TRFs in the state of New York is 266. RISE and CSPA compiled an estimate for TRFs sales in New York. Using the lower sales estimate of 3,800,000 units, the misuse rate based upon FIFRA 6(a)(2) reports is 0.00695%. There would have to be more than 37,500 FIFRA 6(a)(2) reports before the misuse rate approaches 1.0% percent. This literally means that more than 99% of New York consumers are able to use these products safely. If DEC moves forward with this rulemaking to change the registration status of TRFs from general to restricted use in New York, it will clearly demonstrate that the Agency has no understanding of the FIFRA registration process and/or the concept of risk assessment.
    b. DEC requires the submission of USEPA Data Evaluation Reports (DERs) prior to approval of product registration. No other state requires DERs prior to registration approval. USEPA often does not release DERs until long after a federal registration is issued. The requirement by DEC for submission of DERs results in unnecessary delays in registration.
    c. When data gaps exist, USEPA can register a product conditional on future submission of studies to address those gaps, whereas DEC frequently does not.
    d. To evaluate ecological risk, DEC uses a model (PONDTOX) that is exclusive to New York. This model is overly conservative and fails to consider a number of real-world data inputs, including degradation of the active ingredient. A CLA member company met with DEC and Bureau of Habitat (BOH) scientists in January of 2006 to present science-based refinements to the model that resulted in acceptable risk quotients. DEC was not prepared to accept these data or the model enhancements. USEPA uses a more refined model to assess ecological risk. DEC ignores the USEPA ecological risk assessment and relies on its own method of interpretation.
    e. In evaluating environmental fate, a cost/benefit analysis should be conducted. These are values that need to be considered by the regulatory authorities in the registration decision. This does not seem to be the case in New York.
    f. There appears to be a significant disconnect between DEC and the New York grower community that is a major producer of apples, potatoes and cole crops. There are crop protection products registered in other states and Canada that play a major role in controlling insects on these crops, especially as organophosphate replacements. However, DEC has delayed the registration of these products. Thus, other states have a competitive advantage over growers in New York.
    g. Some CLA and RISE member companies have witnessed a significant disconnect between DEC and university and extension experts when working through the registration process. CLA and RISE urge the DEC to accept the USEPA's registrations and improve the efficiency of the New York regulatory process by focusing on science, and reducing costly duplications. These deficiencies currently hamper commercialization of safe products to growers, professional applicators and consumers and reduce New York's competitive advantage in industries in which you are the U. S. leaders. Thank you for the opportunity to comment. Please contact Kellie Bray, Director of Government Affairs for CropLife America or Aaron Hobbs, Director of Legislative Affairs & Grassroots Outreach for RISE at 202-296-1585 if you have any questions or would like to talk more about any of these issues.
  19. Randolph Price, Vice President Environment, Health & Safety, Consolidated Edison Company of New York, Inc.- Consolidated Edison Company of New York, Inc. ("CECONY" or the "Company") welcomes the opportunity to provide comments to the New York State Department of Environmental Conservation (the "Department") identifying "existing [Department] regulations that the Company believes impose unnecessary, burdensome or excessive costs, paperwork, reporting or other requirements." These comments are provided pursuant to Governor Paterson's Executive Order No. 25, issued August 6, 2009, and in response to the Department's public notice in the December 16, 2009 Environmental Notice Bulletin ("ENB"). These comments are also being provided to each of the e-mail links listed in the ENB Notice with respect to the specified regulatory topics identified below.

    CECONY is a subsidiary of Consolidated Edison, Inc., one of the nation's largest investor-owned energy companies. The Company, a regulated utility under the New York Transportation Corporations Law, provides electric, gas and steam service to more than three million customers in New York City and Westchester County. Overall, CECONY serves a population of approximately nine million people throughout a service territory covering 660 square miles.

    The Company is a recognized national leader in its commitment to environmental excellence, and has spent significant resources in achieving and maintaining the high quality of its environmental compliance programs. In 2008, CECONY's environment, health and safety expenditures were more than $370 million. CECONY will, of course, continue this commitment to environmental excellence, but as a regulated utility it also has an obligation to its customers to achieve environmental excellence at the lowest practical cost. Consequently, the Company is pleased to draw the Department's attention to areas that have the potential to improve the Department's regulatory processes by effectuating limited regulatory reforms that will reduce costs faced by energy consumers in the state and the state's own oversight costs without significant adverse environmental impact.

    The Company's comments on specific regulatory programs, set forth in detail below, are organized within four of the distinct regulatory categories outlined in the Department's ENB Notice, including (i) air regulations; (ii) environmental permit regulations; (iii) environmental remediation regulations; and (iv) solid and hazardous materials regulations. Where possible, and in accordance with the ENB Notice, the Company's comments make an effort to "suggest appropriate remedies that the agency may undertake to eliminate or amend regulations that are unnecessary, unbalanced, unwise, duplicative or unduly burdensome."

    4. Solid and Hazardous Materials Regulation.
    Solid Waste Transfers. The Company believes that the Department's current solid waste regulations at 6 NYCRR § 36o-1.7(b) create unnecessary hurdles to the management of the Company's solid, nonhazardous wastes and should be amended to permit application of best management practices for handling such wastes. 6 NYCRR §360-1.7(b) provides broad exemptions from the extensive requirements of Part 360 for solid waste management facilities that do not manage used oil. In the first instance, the listed exemptions do not include truck-to-truck transfers of solid wastes (see 6 NYCRR §360-1.7(b)(7)(ii)). Consequently, if a Company vehicle, such as a vactor truck, hauling solid waste extracted from manholes or other underground structures, experiences mechanical difficulties, that solid waste cannot be transferred to another truck for disposal without first obtaining Department approval. But if that same truck contained hazardous waste, a truck-to-truck transfer would be permissible. The truck-to-truck transfer prohibition for solid wastes in the Department's regulations should be removed.

    Second, 6 NYCRR § 360-1.7(b)(4) prevents solid waste that is generated at a field location or CECONY facility located outside New York City from being unloaded at Company facilities within New York City that do not possess a Part 360 permit, and vice versa. The exemption is limited to solid wastes generated within "a single region of the department," and the Company surmises that the intent of this limitation is the Department's desire to avoid relatively long-haul shipping of wastes to other sites owned or operated by the same owner and maintain regional office oversight of non-hazardous wastes generated, transported and managed with each respective region. But Department Regions 2 and 3 are geographically compact and the Company's service territory straddles both regions.

    Consequently, the regulatory requirement in this section that the solid waste must be generated within a single region prevents the Company from consolidating its waste management activities in a rational manner. CECONY believes the inter-regional prohibition in the regulation is unnecessary and burdensome and could be resolved by extending the exclusion to waste generated "within a single or adjacent region of the department." Alternatively, the Department could consider requiring a one-time notification by a solid waste generator planning to transport such waste across Department regional boundaries. Either approach would streamline the use of the exemption.

    Executive Order No. 25 provides the Department and the Governor's Office the opportunity for a comprehensive review of Department regulations towards the goal of improving the regulatory program by eliminating unnecessary or burdensome requirements and concurrently providing relief to utilities and their customers in this difficult economy. The Company is pleased to have the opportunity to comment on this important regulatory reform effort initiated by the Governor. CECONY looks forward the Governor's Review Committee and Department responses to these comments and to working with both the Committee and Department in improving the Department's regulatory oversight.

    (Additional comments from this letter may be viewed under Environmental Remediation Regulations, Environmental Permits Regulations, and Air Regulations)
  20. Rick Zimmerman, Executive Director, New York Corn Growers Association - On behalf of the New York Corn Growers Association, the following comments are submitted in response to Executive Order 25. The New York Corn Growers Association is a 300 member organization of crop producers throughout New York State. Our members grow the animals and produce the crops that comprise a vast portion of the total gross income from New York agriculture. They are in a competitive battle against other states and regions of our country and the world. Government policies and programs are significant factors in the total equation of overall economic viability of our industry. The Association is appreciative of the opportunity to provide input to DEC on a programmatic area that has significant impact on our industry for quite some time.

    New York's policy of duplicating the Federal Environmental Protection Agency's responsibility of pesticide analysis prior to approving a product registration is duplicative and costly for New York State and substantially increases the time that New York farmers must wait between EPA approval and pesticide product availability. This time period, during which farmers in other states have a competitive advantage due to the fact that the new products may be less costly and more effective in pest control, can be years in length. Each pesticide company interested in registering products in New York must repeat the registration process with DEC. New York is the only state other than California that requires an extensive "re-registration" of each pesticide product before farmers may have access to these products. In many cases, New York State farmers are the last growers in the Union to be allowed to use the newer chemistries registered by US EPA.

    From a farmer standpoint, New York's pesticide re-registration requirement becomes burdensome, when the new products cannot be accessed and therefore the relative costs of production in comparison to the "competition" are subsequently increased. Farmers are continually informed about new products through the agricultural media and nationally based information sources. Pest control is a costly element in successful crop and animal production. Having access to the latest tools to maximize control in an environmentally safe manner for the most reasonable price is a constant challenge. New York's agricultural community cannot afford to continually shoulder this excess cost. The New York Corn Growers Association recommends that the Commissioner of the Department of Environmental Conservation carefully review the purpose of the pesticide product registration program and make modifications that avoid duplication and review of work completed by EPA.

    Given New York's duplicative registration program, the agriculture industry recognizes the professionalism and hard work performed on a daily basis by the Division of Pesticide Management and the Division of Environmental Health Assessment within the Department of Health. This unique working relationship has brought together the right professionals to undertake the responsibility of reviewing pesticide applications and determining their suitability for registration in New York. Despite our overall objection to this duplicative process, these professionals have done their best during the past decade to make the process as functional as possible.

    Unfortunately New York's registration review and approval program has slowed quite significantly during the past three years and is currently substantially out of compliance to state laws and regulations mandating time frames for completing pesticide reviews and registration determinations. While not knowing the exact reasons for such tardiness, it is obvious that staff cuts and additional responsibilities assigned to existing staff members are significant factors in the current situation. This reality comes at a time when pesticide registration fees, paid by companies who would like to provide their products to farmers and other users in New York, have doubled within the past 12 months. This fee for service program is essentially dysfunctional despite the fact that pesticide companies are collectively providing millions of dollars to support the program. These companies and New York farmers deserve better service from our government. Either restore this program to a level of performance mandated by state law or eliminate it entirely.

    Thank you for the opportunity to submit comments on behalf of the New York Corn Growers Association.
  21. Peter O'Connell, Legislative Counsel, New York State Pest Management Coalition - Memorandum in Opposition S.59-B/A.159-B (Budget Bill)
    The New York State Pest Management Coalition OPPOSES that portion of Part YY of the above bill which seeks to double examination fees ($50.00 to $100.00) and applicator certification fees ($225.00 to $450.00 for an initial category and $75.00 to $150.00 for each additional category and subcategory).

    This budget proposal falls particularly hard on structural applicators, who are generally licensed in at least four categories and sub-categories in order to provide a full range of pest management services to their clients. Such an applicator would therefore pay $900.00 in triennial fees under this proposal. If the applicator is a business owner, an additional $900.00 business registration fee is added to these fees, for a total of $1,800.00 per registration period.

    There is not a single regulated person in the state that pays this much in regulatory fees. A medical doctor comes close, with a biennial fee of $575.00. An attorney is a distant second, with a biennial fee of $300.00. The highest fee charged to any other licensed professional is a triennial fee of $210.00, which is paid by such professionals as dentists, veterinarians, professional engineers, architects and certified public accountants. Pharmacists pay triennial fees of $150.00 and nurses pay triennial fees of $50.00.

    Certified applicators are truly blue collar when compared to these licensed professionals. Because of a gigantic fee increase in 2002 (annual fees of $15.00 and $5.00 were increased to triennial fees of $225.00 and $75.00), many pest management companies were forced to pass the cost of these fees along to their employees. It is unjust to expect these employees to pay between $450.00 and $900.00 to keep their jobs. It is also unrealistic to expect entry-level candidates - particularly minority candidates - to expend these revenues in order to obtain a job.

    Companies that pay their employees' registration fees are also placed at a disadvantage. Unlike licensed professions, they suffer from severe employee turnover. Under this bill, it would not be unusual for a company to expend $100.00 in examination fees and a minimum of $450.00 in registration fees (not to mention fees expended toward mandatory training programs) and lose an employee within six months from the date of hire.

    These fee increases come in a down economy when more and more customers are foregoing pest management services. They will, without doubt, cause a loss of jobs and business closures within the industry. For these reasons, the NYS Pest Management Coalition requests that the above fees be deleted from the budget.
  22. Jim Boesenberg, Jim Boesenberg Landscaping - Sirs, This is my first email ever sent to any State or Government agency. I am shocked and outraged at the pure disregard for the small business owners and their families. To increase the Pesticide Registrations Fees to $ 900 every three years is ridiculous ! Does the State and DEC officals live in an area where the economy is booming ?

    By raising all these fees does the State feel that we just "pass it along " to are already dwindling customer base ? Most of us are face to face with our customers on a daily basis , they are suffering too!

    How about this HOLD THE PRICE INCREASE ON THESE FEES ! it would help not only small business but also the economy.
  23. Peter O'Connell, Legislative Counsel, New York State Pest Management Coalition - I am legislative counsel to the New York State Pest Management Coalition (the "Coalition"), which consists of the New York State Pest Management Association, the Long Island Pest Control Association and the Professional Pest Management Association of New York City. I am writing to request relief from (1) the reporting requirements under the Pesticide Reporting Law ("PRL"), the fees mandated under Chapter 59 of the Laws of 2009, and (3) a prohibition against certified technicians from purchasing restricted use pesticides. It is recognized that these requests will require the amendment or repeal of statutes, as well as regulations.

    Pesticide Reporting Law
    It is recommended that the PRL be either repealed or suspended because it is unduly burdensome to both pesticide applicators and DEC. Given today's dire financial realities, state agencies should be directed to focus upon their core duties, which, in this case, is the regulation of pesticides and persons who apply pesticides. Although the goal of the PRL (i.e.; the tracking of pesticides for the purpose of determining if pesticide usage causes breast cancer) is laudable, the collection of this data imposes an enormous burden on both the regulated community and DEC.

    The data collected is ultimately passed along for analysis by the Health Research Science Board, which has been collecting data since 1996. Before repealing or suspending the program, it may be advisable to require the Board to submit a report on its findings to date, as was done with some of the boards that are proposed to be repealed under one of the Governor's Budget Bills (S.6613/A.9713). It is possible that the research has revealed no link between pesticides and breast cancer and it is also possible that the information provided to the Board has been too unreliable for scientific purposes. If either conclusion should be drawn, the program simply is not worth the burden that it places on the regulated community and DEC.

    In this regard, it should be noted that the Governor is proposing to abolish dozens of advisory boards and programs that are not deemed to warrant continuation in today's time of fiscal need. Among them is the Ovarian Cancer Information Program, the Breast and Cervical Cancer Detection and Education Program, the Prostate and Testicular Cancer Detection and Educational Council and the Osteoporosis Advisory Board. Although all of these Boards were formed under the best of intentions, they are simply too costly to continue under present fiscal conditions.

    At the very least, a status report by the Health Research Science Board could lead to a more efficient method of collecting data. For example, structural certified applicators often use such minute amounts of pesticides at individual locations that it is necessary to break information down two decimal points in grams or milliliters. There is also room for error in breaking down locations to nine digit zip codes, especially since the postal service has removed the dash in addresses. Indeed, it is possible that the breaking down of information to areas smaller than a five-digit zip code is not scientifically productive.

    Fees
    This issue, too, requires a statutory fix. The doubling of fees during the 2009 budget has imposed a considerable hardship on the industry. Pursuant to this legislation, the first $5 million in fees collected each year is to be paid into the Environmental Protection Fund (EPF). It is believed that this legislation has caused a decline in the number of registrations to the point where there is no longer $5 million in "new money" in the system. If this is the case, the fee increase will also have caused a diminution in revenues to DEC's Pesticide Bureau.

    The amount of fees is now so prohibitive that it is unprofitable for applicators to become certified in areas that produce marginal returns. As explained in the attached memorandum, it is necessary for a structural applicator to become certified in four categories (7A, 7F, 7C and 3A) in order to provide a full range of services to his or her clientele. This comes at a cost of $1,800 in triennial fees when a business registration fee is included.

    In rural areas, it is necessary to carry additional certifications (1A and 1B) to serve the farm community and many rural applicators have also become certified for right of ways (6A) and public health (8). However, many rural applicators have found that they get so few of these calls that it is no longer financially feasible to carry these certifications. The same holds true for urban applicators, who often become certified in cooling towers (7G), fumigation (7B), public health (8) and other disciplines.

    When applicators abandon certifications, segments of the population are denied essential pest management services. When they retain marginal certifications, they pass the cost along to consumers, which result in inordinately high fees for their services. This, in turn, encourages consumers to resort to self-help, which often leads to excessive use of chemicals.

    The current fee structure has also discouraged apprentices and technicians from advancing themselves professionally and it has had a disproportionate affect on small businesses - particularly within the New York City minority community, where 70 to 80 percent of all apprentices, technicians and applicators are minorities.

    There is no rational basis for singling the pest management industry out to pay half of their regulatory fees into the EPF. It is possible that there is no legal basis, as well, as regulatory fees are only supposed to be used to offset the cost of regulating a particular industry. With new sources of revenue coming on line (i.e.; the enhanced bottle bill), it is time to relieve the pest management industry from these inordinate fees.

    Purchase of Pesticides
    Approximately a year ago, DEC began to crack down on persons who sold restricted use pesticides to persons who were not certified applicators. The rationale for taking this action is based upon a reading of § 33-1301 of the ECL, which provides that only a certified applicator may "purchase or possess" a restricted use pesticide. The provision of law was enacted in 1978, before certified technicians were recognized under the law.

    It is often inconvenient for a certified applicator to physically appear at a distributor's place of business for the purpose of purchasing restricted use pesticides. We therefore ask that certified technicians, who are subject to all of the examination and training requirements as a certified applicator (except for time on job) to purchase these pesticides.

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Water Resources Regulations

  1. Hugh Kimball - The process to get a wetland "mapped" takes too long and as a result is unfair to landowners, neighbors, and developers. As leader of a neighborhood group, I went successfully through the process (BAL31), but it took 2 1/2 years before it was finally accomplished, and I understood that it was the first new mapping done in the State in many years and the first one in District 7 ever. A couple of years ago Mr. Jacobsen publicly indicated that the DEC was to try a new streamlined procedure in District 7 and one other district. As far as I know this never happened.

    In our situation neighbors concerned about development in an unmapped wetland had to wait many months to be assured of protection for the wetland, and a developer, who had invested a great deal in a project, had to wait the same period before realizing that he could not do what he had started. There was little question that "our" wetland was a wetland since it was also a federal wetland nor was there much doubt that the wetland was at least 12.4 acres, yet the process was very involved and cumbersome.

    I would encourage the streamlining of the process as per the plans of a few years ago. It would not only be more fair to all, it should also take less time on the part of DEC staff.
  2. Raymond J Dykeman, Dykeman & Sons, Inc. - For the most part I do not mind the CAFO inspections on the farm, but I do have a few comments that may help. Not sure.

    1. The most ridiculous thing we deal with is the daily water line inspections. From what I understand this rule was created due to a hog operation with automatic feed and automatic clean. Basically no one entered the facility on a daily basis to check on things. All dairy farms have people going in and out of the facilities all day long. 2. We have people on staff 24/7; if a water line is broke we are going to fix it. We certainly do not need to take the time everyday to check off that we have checked the water lines in the barn.
    3. When the EPA came with the DEC in the spring they wanted a soil analysis on each and every field we operate. The company that helps us with our CAFO program has a summary sheet of all the field nutrients. All the information on the individual sheets is on the summary sheet. They thought it was necessary to have each one of the individual field sheets on record. So instead of a summary of a couple of pages long, they would like us to have 750 pages of individual fields with the same information on it. Doesn't really make a lot of sense.
    4. Keeping rainfall records and manure spreading records for 5 years doesn't really make a whole lot of sense. I would a least think you could knock that down to 3 years. It's not like you are ever going to use that information.
    5. The costs of some of these regulations are huge and in our industry this year the average farm lost over $5 per hundredweight. I'm not sure how many farmers in this state will be able to remain in this industry in the future. The regulations have driven up the costs of producing milk quite substantially and there is no way for us to pass this on to the customers. The processors and especially the supermarkets can raise up the price and don't bother passing any of that along to the farmer. The farmer price has been cut in half since 2007. Why don't you check out how much the price has come down in the store since then?
    6. We have accepted the fact that we have almost no representation in both State and Federal Government. I would think someone would do a little more research as to the economic benefit to our state from just one of these larger farms. I also have a hard time knowing a DEC inspector drives by several businesses with violations in plain sight, just to get my farm and search all day to find violations.
    7. I also believe that if someone takes over an existing farm there should be a grace period to get the farm CAFO compliant. There will be many farms lying empty if you don't allow some time for someone to be bringing in some income while attacking the main problems on the farm.
    8. I also would like to see some leniency at least until we get used to keeping and maintaining these records. I always wanted to be a farmer and never envisioned I would spend hours per week keeping records to satisfy our Government.
    I would like to see this process be a work in progress together, not farmer verses Government. The feeling most farmers have with these inspections is fear and that really doesn't seem necessary.
    Henry Ford quotes "Coming together is a beginning. Keeping together is progress. Working together is success."
  3. Mitchell L. Bush, President, New York State Bluestone Association - Storm water Discharges Associated with Industrial Activity under the State Pollutant Discharge Elimination System (SPDES).

    With the implementation of the revised Notice of Intent or Termination Multi- Sector General Permit GP-0-06-002 program, quarries with point source discharges are required to submit appropriate permits related Storm water Discharges Associated with Industrial Activity under the State Pollutant Discharge Elimination System (SPDES) Permit. Previous to the GP-0-06-002 Permit, the Mined Land Reclamation Permit covered all aspects of Storm water control, along with Sedimentation and Erosion Control Best Management Practices. The current system creates an overlapping division control and oversight situation, which is overly burdensome and costly.

    (Additional comments from this letter may be viewed under Environmental Permit Regulations and Mineral Resources Regulations.)
  4. Shea, Nina, Building Industry Association of NYC, Inc- Review of common problems encountered with NYSDEC for Region 2. The following is a list of common issues raised by professional engineers, registered architects and building industry contractors who are members of our organization. Although the NYSDEC is a state organization our comments relate directly to Region 2 because it is the behavior of that regional office that we are familiar.

    The overwhelming initial comment about Region 2 is a lack of communication. Simply put, "no one answers the phone, no one returns phone calls". The Region does not respond to pre-filing conference requests. These conferences which are in fact suggested on the DEC website would be a valuable tool for the design professional to understand a potential project and to ascertain the department's initial concerns about a locality, or even specific site, prior to starting the costly process of permit application. The Region does not schedule these meetings.

    The lack of communication continues during the review process once an application for permit is filed. Comments issued by the Department are often unclear and may be misunderstood by the design professional. The Department is reluctant to schedule meetings to discuss their reviews with applicants and property owners. This lack of communication lengthens the process and therefore the associated costs to the property owner.

    The general consensus of the design professionals is that the Region prefers to lengthen the process as much as possible to discourage the property owners from proceeding with their applications. The department thereby denies development without formally denying an application.

    The second comment is that the Region will not delineate freshwater wetlands without formal applications being filed. While it is our understanding that this policy was initiated to alleviate the "overwhelming workload" to the Region, it is unfair to the property owner.

    Applications require a survey, site plan and calculations which easily cost thousands of dollars which ultimately will be wasted if the "guess" at a wetland line is not accepted by the Department. Region 4 actually has a formal "request for wetlands determination or delineation" process on its website. Why not Region 2 or any other Region for that matter?

    Tidal wetland delineations are routinely performed upon request, however, a crucial piece of information is lacking. If the site is within a coastal erosion management area, the Department will not establish this line of delineation in the field.

    Again this line is considered to be established during the review process and again this puts a financial hardship on the property owner. He must create a site plan with design calculations based on a "guess" of what the Department wants. Neither the law nor the regulations require the DEC (where it exercises jurisdiction) to delineate and flag on-site the coastal erosion management line at the request of the landowner. The DEC should either amend the law or regulations or make some other formal public announcement and adopt a policy of delineating on-site the coastal erosion management line so that an owner may transfer the line to a survey and everyone concerned would have an accurate location of the line.

    The current coastal erosion maps were delineated using aerial photograph interpretation. There appears to have been no in-field checking and correction of those delineations. The scale for the photographic maps do no allow for accurate identification and transfer to an actual site survey. The line on the map can equal as much as 25 feet in width. Sites that had dense vegetation or a dense tree canopy would probably have prevented the person who delineated the aerial photograph from being able to see all of the relevant natural protected features accurately, thus preventing him from accurately transferring those features to the jurisdictional maps. Aerial photographs used to delineate the coastal erosion lines are from the early seventies. The Department's regulations of the coastal erosion management program are believed to have started sometime in 1988 or after. Using photographs that are fourteen years prior to the enforcement of the regulations in areas of high building activity and/or land erosion make the lines on the map practically useless for current day on-site identification of actual conditions. The DEC is required by law to review and update the maps every ten years, but the original 70's aerial photograph maps are still the official maps so it appears that this review and update has never taken place. Since tidal wetlands and freshwater wetlands laws require DEC to delineate and flag on-site an actual line then why not simultaneously flag the coastal erosion management line?

    Additionally, the NYCDOB in cooperation with, and at the request of, DEC, recently initiated a program in which their building information website (BIS) and their plan examiners are identifying and flagging properties in or near DEC jurisdiction freshwater wetlands, tidal wetlands and coast erosion management zones based upon DEC maps. All of these maps are extremely old and stale. They have not been updated since their original adoption, some of which date back 32 years ago.

    If a property is flagged, the NYCDOB will require the owner to submit either a permit from DEC or a letter of "no jurisdiction". The process for getting a letter of no jurisdiction is not clear. In situations where all of the activities of the development are outside of the DEC's jurisdiction and associated adjacent areas and none of the areas will be breeched or disturbed by the proposed development, we request that the DEC streamline and formalize the process of getting a non-jurisdictional determination.

    Without the requestor having to submit to the DEC, full applications that have to be deemed complete for review. We would like to see a streamlined process adopted with formal forms and guidance. This is very important given the new procedures adopted by NYCDOB and will save property owners and the state a great deal of time and money.

    We believe that pre-filing delineations, conferences and follow up review communication would greatly reduce the Department's overall workload by insuring that the applications filed would be closer to final approvals.
  5. Roger Downs, Sierra Club Atlantic Chapter - The Sierra Club Atlantic Chapter has had problems with the timeliness of the freshwater wetlands map amendment process under 6 NYCRR § 664. The 168 acre wetland TE-39 was identified by the Chapter in 2005 and it took nearly 5 years for the DEC to officially include it on a jurisdictional map. In that five year period, multiple development intrusions threatened the wetland with little department intervention. The map amendment process needs to be streamlined to both accelerate the inclusion of jurisdictional wetlands and reduce unnecessary costs- like public hearings on what is clearly a cut and dried scientific determination. The environmental and secondary economic costs to wetland destruction are great; with losses in water quality, floodwater attenuation and critical habitat that all have a real dollar value. NYS cannot afford to lose these valuable ecological services to cumbersome regulation that do not serve to protect wetlands.

    In consideration of the fact that nearly 700,000 acres of wetlands in NYS are over 12.4 acres and yet not mapped by the DEC- tying wetland protection to what is on a NYS jurisdictional map has been an ultimate failure of the Freshwater Wetlands Program. We would encourage the DEC to abandon mapping as a jurisdictional requirement and adopt a more common sense approach: define jurisdictional wetlands as areas 12.4 acres and larger that possess hydric soils and hydrophilic plants.

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Other Comments

  1. True Nature Landscaping, Inc. - I've been in business for a long time and I understand that things should be done the right way. That includes doing business to the best of your ability which also includes having all the proper licenses, but how can a small business owner keep up. There are so many different kinds of licenses and fees, how can a small business owner keep up with his expenses. It's no wonder that people do things illegal, this government it trying to put people out of business. It's like having a leech attached to you. How long can you stand it, before ripping it off of you? Let's try to get back to smaller government? Eliminate some of the agencies and reassure small business owners that they are important to this economy.

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