Transcript Justin Pfeiffer, Esq. Senior Attorney, NYSDOH October 20, 2010

SEQR & Environmental Health:
Types of Actions
Justin Pfeiffer, Esq.
Senior Attorney, NYSDOH
March 23, 2011
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Standard Disclaimer
The contents of this presentation
should not be construed to represent
any government agency determination
or policy. These materials are for
instructional use only and are not
intended as a substitute for
professional legal advice.
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Outline
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Sources of SEQR Law & Guidance
Type I Actions
Type II Actions
Unlisted Actions
“Discretionary Actions”
“Non-discretionary Actions”
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SEQR Laws and Guidance
• Environmental Conservation Law
(ECL) article 8
• 6 NYCRR part 617
– Applies to all state and local agencies, all the time
• 10 NYCRR part 97
– Legally applies only to NYSDOH, but a “persuasive
authority” in determining what applies to county DOHs
– More health-specific that 6 NYCRR part 617
• 2010 SEQR Handbook
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3 Types of Actions
• Type I Actions
– A “Discretionary Action” may be Type I
• Unlisted Actions
– A “Discretionary Action” may be Unlisted
• Type II Actions
– Includes “Non-discretionary actions”
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Which Types of Actions
Does SEQR Apply To?
• SEQR Applies to:
– Type I Actions
– Unlisted Actions
– “Discretionary Actions”
• SEQR Does Not Apply to:
– Type II Actions
– “Non-discretionary Actions”
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What is a
Type I Action?
• Any action “likely to require
preparation of an EIS”
• This includes initial approval of
most facilities or activities that are
regulated by State Sanitary Code
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What is a
Type I Action? (cont.)
• Initial plan approval of:
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Public water systems (Community and Non-)
Realty Subdivisions (!)
Mobile Home Parks
Public Swimming Pools
Public Bathing Beaches
Children’s Camps
Hotels and Motels
Mass Gatherings
Travel Vehicle Parks and Campsites
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What is a
Type I Action? (cont.)
• Approval of Insect Control Programs
• Action within or adjacent to a site on,
or proposed for listing on, the National
Register of Historic Places, or listed on
the State Register of Historic Places
Source: 6 NYCRR 617.4, 10 NYCRR 97.14
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What else might be a
Type I Action?
• Anything that can be “reasonably
expected” to create:
– Substantial, adverse change in water, soil, or air
quality or noise level
– Substantial, adverse damage to vegetation or local
or migratory animals
– Congregation of people for more than a few days
– Conflict with the community’s officially adopted
plans or goals
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What else might be a
Type I Action? (cont.)
• Anything that can be “reasonably
expected” to create:
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Impairment of an area’s historic character
Major change in energy use
Major change in use of resources
Hazard to human health
• Use judgment!
Source: 10 NYRCRR 97.13
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What is a
Type II Action?
• In general, issuance of any permit,
certification or registration that does
not relate to construction
– Possible exceptions: See Type I Guidance
• License or permit renewals where
there is no material change in permit
conditions
• Replacement of a facility in kind
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What is a
Type II Action? (cont.)
• Construction of minor structures
appurtenant to existing facilities
• Minor, temporary uses of land having
temporary or negligible effects on the
environment
Source: 6 NYCRR 617.5, 10 NYCRR 97.14
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What is an Unlisted Action?
• Anything that is not Type I or Type II
by DEC
• Or, if state agency action, anything not
Type I or Type II in agency regulation
Source: 6 NYCRR 617.2, 10 NYCRR 97.2
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What is a “Discretionary Action”?
• “Discretionary” refers to a decision
requiring the agency’s judgment,
expertise, and decision-making
• Can be a Type I or Unlisted Action
• Ex: The agency has “discretion”
over whether to grant a permit
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So, What is a
“Non-discretionary Action”?
• This a kind of Type II Action
• The applicant has “checked all the boxes”
• Agency’s decision does not require
judgment, expertise, or decision-making
• Therefore, the agency must take a certain
action; e.g., issue a permit
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Other Issues (For Another Day)
• Who is lead agency? In general:
– The agency taking action
– If multiple agencies, the agencies agree on lead
– If no agreement, DEC decides
• When is a full EAF required for
Unlisted Actions?
• What is the EIS process?
• How does notice and comment work?
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Reminders
• This is a general overview of just
one part of SEQR
• Exceptions and grey areas exist
• If you have questions, seek
guidance from DOH or DEC
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Contact Information
Justin Pfeiffer, Esq.
NYS Department of Health
(518) 473-1403
[email protected]
NYSDEC, Division of
Environmental Permits
(518) 402-9167
[email protected]
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Discussion
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