justin pfeiffer, esq. senior attorney, nysdoh march 23, 2011

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SEQR & Environmental Health:

Types of ActionsJustin Pfeiffer, Esq.

Senior Attorney, NYSDOHMarch 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

• 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:– 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:– 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


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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


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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

justin pfeiffer, esq. senior attorney, nysdoh march 23, 2011

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