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April 10, 2020

COVID-19: Executive Order 202.15 Suspends Certain Public-Hearing Provisions of Environmental Conservation Law, Extends Expiration Date for SAPA Notices

On April 9, 2020, NYS Governor Cuomo issued Executive Order No. 202.15, the latest in a series of orders issued in response to the COVID-19 pandemic. 

Focusing on requirements to hold public hearings, which are required for and key to many environmental permitting decisions by the New York State Department of Environmental Conservation (NYSDEC), the executive order temporarily suspends or modifies through May 9 those provisions of the Environmental Conservation Law that require a public hearing, including Articles 3, 8, 9, 13, 15, 17, 19, 23, 24, 25, 27, 33, 34, 35, 37, and 75, as well as NYSDEC’s implementing regulations at Parts 552, 550, 601, and 609. In doing so, it does not completely obviate the need for public comment. Rather, it requires that “public comments shall still be accepted either electronically or by mail to satisfy public participation requirements.”

The executive order also specifically calls out State Pollutant Discharge Elimination System permits and thermal discharge permits, as implemented by 6 NYCRR Parts 704 and 750, suspending the provisions for processing those permits under the Uniform Procedures Act to the “extent necessary to suspend public hearings.” Again, public comment is not suspended. Public comments may be accepted, either in writing or electronically, and any required appearances may be done via teleconferencing or other electronic means. 

Separate and apart from NYSDEC’s public hearing obligations, the executive order also provides that “[a]ny local official, state official or local government or school, which, by virtue of any law has a public hearing scheduled or otherwise required to take place in April or May of 2020 shall be postponed until June 1,2020, without prejudice, however such hearing may continue if the convening public body or official is able to hold the hearing remotely, through use of telephone conference, video conference, and/or similar service” (emphasis added).

Lastly, section 202(2) of the State Administrative Procedures Act (SAPA) ) providing for the expiration of most rulemaking notices within 365 days is temporarily suspended, extending the expiration date for such rulemaking notices until 90 days after the executive order, as may be amended, is terminated. Currently, that equates to an extension until July 8, 2020.

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com or another member of the firm’s Environmental Practice Area. 

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.
 

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