[HISTORY: Adopted by the Legislature of the County of Monroe 12-18-1979
by L.L. No. 7-1979.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law was accepted for filing by the
state as L.L. No. 6-1979.
This chapter shall be known as the "Environmental Quality Review Law
of Monroe County."
It is the purpose of this chapter to establish a policy whereby county
agencies and the County Legislature, in coordination with municipal governments,
may implement at the local level Article 8 of the New York State Environmental
Conservation Law and Part 617 of Title 6 of NYCRR. It is the purpose of this
chapter to conform with changes made to Article 8 and 6 NYCRR 617 since the
adoption of Monroe County Local Law No. 5 of 1977. It is the intent that actions
by the County Legislature and county agencies be consistent with the need
for maintaining a high-quality environment in Monroe County. To accomplish
this goal, the County Legislature and county agencies shall incorporate the
consideration of environmental factors into the planning, review and decisionmaking
processes at the earliest possible time. It is also the intent that the County
Legislature and county agencies shall give appropriate weight to environmental
factors considered together with social and economic factors. Finally, it
is the intent that county agencies consolidate and coordinate existing multiple
review procedures through administrative guidelines while meeting the provisions
of this chapter, so that delay is minimized and time, money and effort are
saved.
The terms and their derivatives as used in this chapter, unless the
context otherwise requires, shall have the meanings given below:
Include:
Projects or physical activities which change the use or appearance of
any natural resource or structure and which:
Are directly undertaken by one or more county agencies;
Are supported in whole or in part through contracts, grants, subsidies,
loans or other forms of funding assistance from one or more county agencies;
or
Require one or more permits or other approvals from one or more county
agencies.
Planning activities undertaken by a county agency that commit the agency
to a definite course of future decisions or actions.
County agency rule, regulation, policy and proceduremaking.
Any combinations of the above.
Any state or local agency.
any agency, individual, corporation, government entity, partnership,
association, trustee or other legal entity which must, under law, apply to
one or more county agencies to obtain a permit, approval, advisory report,
grant, funding or other form of review on a proposed action without which
the action may not proceed.
A decision by a county agency to issue a permit or to otherwise authorize
a proposed action.
The Environmental Quality Review Law of Monroe County.
The County of Monroe.
The County Legislature or any county department, agency, board, authority,
commission, officer or employee.
The physical conditions which will be affected by a proposed action,
including but not limited to air; land; water; minerals; flora; fauna; noise;
objects of historic or aesthetic significance; existing patterns of population
concentration, distribution or growth; and existing community or neighborhood
character; energy conservation and consumption; and social and economic characteristics.
A preliminary statement prepared pursuant to § 235-8 of this chapter.
An action which was undertaken, funded or approved prior to the effective
dates set forth in the State Environmental Quality Review Act (See Chapters
228 of the Laws of 1976, 252 of the Laws of 1977 and 460 of the Laws of 1978).[1]
Any one of the following:
Enforcement or criminal proceedings or the exercise of prosecutorial
discretion in determining whether or not to institute such proceedings;
Ministerial acts, that is, such actions performed upon a given state
of facts in a prescribed manner imposed by law without the exercise of any
judgment or discretion as to the propriety of the action;
Maintenance or repair involving no substantial changes in an existing
structure or facility;
Actions requiring a certificate of environmental compatibility and public
need under Article VII or VIII of the Public Service Law and the consideration
of, granting or denial of any such certificate; or
Actions which are immediately necessary on a limited emergency basis
for the protection or preservation of life, health, property or natural resources.
The agency principally responsible for coordinating the environmental
review of a proposed action, determining the environmental significance of
the action, determining whether an environmental impact statement is required
in connection with the action and for the preparation and filing of the statement
if one is required.
An action or class of actions, identified in the administrative procedures,
more likely to have a significant effect on the environment than those not
so identified.
An action or class of actions, identified in the administrative procedures,
which have been determined not to have a significant effect on the environment.
All actions not excluded or exempt, not listed as a Type I action
or not listed as a Type II action in this chapter.
[1]
Editor's Note: See the Environmental Conservation Law § 8-0101
et seq.
A.
No decision to carry out, fund, permit or otherwise approve
an action shall be made by the County Legislature or by a county agency until
there has been full compliance with all requirements of this chapter and Part
617 of Title 6 of NYCRR.
B.
The requirements of this chapter shall not apply to the
following actions and classes of actions, except as provided in this chapter:
(1)
Actions defined as Type II actions in § 235-3 of this chapter and as set forth in the administrative procedures.
(4)
The conducting of studies and preliminary planning and
budgeting necessary to the formulation of a proposal for an action, provided
that those activities do not commit the agency to commence, engage in or approve
such an action.
(5)
Engaging in review of any part of an application which
relates only to compliance with technical specifications and requirements,
provided that no such review determinations shall entitle the applicant to
commence the action until all requirements of this chapter and Part 617 of
Title 6 of NYCRR have been fulfilled.
A.
This chapter shall not be construed to increase, decrease
or change in any way the powers or jurisdiction of, among or between county,
state and local governments and agencies.
B.
County agencies shall make every reasonable effort to
involve applicants, other agencies and the public in the environmental quality
review process at the earliest practicable stage in the undertaking, funding,
permitting or approval of a proposed action.
C.
No decision on a proposed action shall be made by any
county agency where, to its knowledge, another agency has determined that
such proposed action may have a significant effect in the environment until
the provisions of this chapter have been met.
D.
If a county agency or an applicant has exercised due
diligence in ascertaining and identifying all other agencies having jurisdiction
over a proposed action and has notified, in writing, all such other agencies
that it has ascertained and identified of its determination of environmental
significance, no other involved agency may later require the preparation of
a EIS in connection with such proposed action, unless such involved agency
had formally disagreed with such determination or objected to the designation
of a lead agency at the time of such original application.
E.
The County Executive shall be responsible for the promulgation
of administrative procedures for the implementation of this chapter by county
agencies. Such administrative procedures shall be in conformance with the
provisions of this chapter, Article 8 of the New York Environmental Conservation
Law and 6 NYCRR 617.
When an action is to be carried out or approved by two or more agencies, the determination of whether the action may have a significant effect on the environment shall be made by the lead agency within 15 calendar days of its designation as lead agency or within 15 calendar days of its receipt of any information it may need to make the determination of significance, whichever occurs later. The lead agency is that agency having principal responsibility for carrying out or approving such an action. Such agency shall prepare or cause to be prepared by contract or otherwise the environmental impact statement for the action, if such a statement is required. Such lead agency designation shall be determined within 30 calendar days of the notification of all involved agencies. In the event that there is a question as to which is the lead agency, any agency may submit the question to the Commissioner of Environmental Conservation, who shall designate the lead agency, giving due consideration to the capacity of such agency to fulfill adequately the requirements of this chapter. The designation of lead agency shall be in accordance with administrative procedures promulgated pursuant to § 235-10 of this chapter.
A.
In cases where an action will require funding or approval
from one or more county agencies and one or more agencies not county agencies
(i.e., city, town, village, state), it shall be the intent of this section
to avoid unnecessary delay by designation of an appropriate lead agency by
memoranda of understanding for specific types or classes of actions, prior
to the actual receipt of any applications for those actions. Such memoranda
of understanding shall:
(1)
Contain a statement identifying the county agency or
agencies and the noncounty agency entering into the agreement;
(2)
Contain a statement identifying the specific type or
class of action covered by the agreement;
(3)
Contain a statement identifying the types of permits
or approvals involved for such actions;
(4)
Contain a specific threshold, determined by county administrative
guidelines:
(5)
Designate the lead agency pursuant to the memorandum
for those actions.
A.
County agencies shall use all practicable means to realize
the policies and goals set forth in this chapter and shall act and choose
alternatives which, consistent with social, economic and other essential considerations,
to the maximum extent practicable, minimize or avoid adverse environmental
effects, including effects revealed in the environmental impact statement
process.
B.
As early as possible in an agency's formulation of an action it proposes to undertake or as soon as an agency receives an application for funding or approval, the lead agency shall determine whether an environmental impact statement need be prepared for that action in conformance with the environmental quality review laws applicable to the lead agency's level of government. An environmental impact statement shall be required for all actions which, it has been determined, may have a significant effect on the environment. If the lead agency is a county agency, the county lead agency shall act in conformance with the administrative procedures promulgated by the County Executive for the implementation of this chapter. It is the intent of this section that all requirements of this chapter, of Article 8 of the New York Environmental Conservation Law and, within the constraints of § 235-12 of this chapter, of the National Environmental Policy Act of 1969, be met by a single EIS and, if practicable and conducted, by a single public hearing process.
C.
When a draft EIS has been submitted to the county lead
agency, that agency shall determine whether to accept it as satisfactory with
respect to its scope, content and adequacy in accordance with county administrative
procedures.
D.
When the county lead agency has accepted a completed
draft EIS, it shall determine whether or not to conduct a public hearing concerning
the action. In determining whether or not to hold a public hearing, the county
lead agency shall consider the degree of interest shown by other involved
agencies and the public in the action and the extent to which a public hearing
can be expected to assist the county lead agency in the decisionmaking process
by providing relevant public comment. If a public hearing is determined to
be required:
(1)
The county lead agency shall prepare and file notice thereof in accordance with administrative procedures issued by the County Executive, pursuant to § 235-10 of this chapter.
(2)
The public hearing shall commence no less than 15 nor
more than 60 calendar days after the filing of the draft EIS, except where
the county lead agency determines that additional time is required for other
agencies or the public to review the draft EIS; or, where a different hearing
date is required under other applicable laws, the environmental quality review
hearing shall be incorporated into the existing hearing procedure whenever
practicable.
E.
If a draft EIS analyzes adequately the probable environmental
impacts of the proposed action, it may be deemed a a final EIS for purposes
of this chapter. All final EIS's shall contain the following information
to be considered as a final EIS: the draft EIS, including any necessary revisions
to the draft, identified as such; copies or a summary of the substantative
comments received on the draft and their source; and the lead agency's
substantative responses to the comments.
F.
The final EIS shall be prepared within 45 calendar days
after the close of any hearing on the proposed action or within 60 calendar
days after the filing of the completed draft EIS, whichever last occurs, except
as provided for in the administrative procedures.
A.
The county lead agency's decision on whether or
not to approve or fund an action for which a final EIS has been prepared shall
be made not sooner than 10 and within 30 calendar days of the filing of the
final EIS, except for good cause. If the county lead agency cannot make the
decision within that time, it shall notify the applicant or county agency
initiating the action, in writing, stating its reasons.
B.
No decision to commence, carry out, fund or approve an
action which has been the subject of a final EIS shall be made until the EIS
has been filed and given due consideration.
C.
When the county lead agency decides to commence, carry
out, fund or approve an action which has been the subject of a final EIS,
it shall:
(1)
Make a written finding that the requirements of this
chapter have been met, and:
(a)
Consistent with social, economic and other considerations
from among the reasonable alternatives thereto, the action to be carried out
or approved is one which minimizes or avoids adverse environmental effects
to the maximum extent practicable, including the effects disclosed in the
relevant EIS; and
(b)
All practicable means, consistent with social, economic
and other considerations, shall be taken in carrying out or approving the
action so as to minimize or avoid adverse environmental effects.
(2)
Prepare a written statement of the facts and conclusions
relied upon in the final EIS supporting its decision and indicating the social,
economic and other factors and standards which formed the basis of its decision.
(3)
This written statement shall be placed on file with the
County Environmental Management Council as repository for the county lead
agency and made accessible to the public.
D.
No county agency shall make a decision not to approve
or fund an action which has been the subject of a final EIS until it has prepared
and filed a written statement of the facts and conclusions relied upon supporting
its decision.
A.
The County Executive shall be responsible for the promulgation
of administrative procedures for the implementation of the provisions of this
chapter. These procedures shall be in conformance with the statewide rules
and regulations in Part 617 of Title 6 of NYCRR providing for local agency
procedures, and may cause the following:
(1)
Definition of terms used in such administrative procedures.
(2)
Criteria for determining whether or not a proposed action
may have a significant effect on the environment, taking into account social
and economic factors to be considered in determining the significance of an
environmental effect.
(3)
Identification on the basis of such criteria of:
(a)
Actions or classes of actions that are more likely to
require preparation of environmental impact statements than those not so listed
(Type I actions).
(b)
Actions or classes of actions which have been determined
not to have a significant effect on the environment and which do not require
environmental impact statements under this chapter (Type II actions).
(4)
Provision for the filing and circulation of draft environmental
impact statements and final environmental impact statements, pursuant to this
chapter.
(5)
Scope, content, filing and availability of findings required
to be made pursuant to this chapter.
(6)
Form, content of and level of detail required for an
environmental impact statement.
(7)
Procedures for obtaining comments on draft environmental
impact statements, holding hearings, providing public notice of agency decisions
with respect to preparation of a draft environmental statement; and for such
other matters as may be needed to assure effective participation by the public
and efficient and expeditious administration of this chapter.
B.
Existing agency environmental procedures may be incorporated
in and integrated with the procedures issued under this chapter, and variance
in form alone shall constitute no objection thereto. Such individual agency
procedures shall be no less protective of environmental values, public participation
and agency and judicial review than the procedures mandated by Article 8 of
the Environmental Conservation Law and 6 NYCRR 617.
C.
Such procedures shall provide for interagency working
relationships in cases where actions involve more than one agency liaison
with the public and such other procedures as may be required to effect the
efficient and expeditious administration of this chapter.
A.
The County Legislature may, following written public
notice and public hearings, designate specific geographic areas within the
county as critical areas of environmental concern. To be designated as a critical
area, an area should have an exceptional or unique character covering one
or more of the following:
(1)
A benefit or threat to the public health or public safety.
(2)
A natural setting (e.g., fish and wildlife habitat, forest
and vegetation, open space and aesthetics).
(3)
Social, cultural, historic, archaeological, recreational
or educational purposes.
(4)
An inherent ecological, geological or hydrological sensitivity
to change which could be adversely affected by any change.
B.
Following designation by the county Legislature, notification
that an area has been designated as a critical area shall be filed with the
Commissioner of Environmental Conservation. This designation shall take effect
30 days after filing.
C.
A map or maps showing the location and extent of the
designated critical areas of environmental concern shall be maintained and
made available for public inspection in a location or agency designated by
the County Executive in the administrative procedures.
A.
When a draft and final EIS for an action have been prepared under the National Environmental Policy Act of 1969, an agency shall have no obligation to prepare an additional EIS under this chapter. However, except in the case of excluded or exempt actions, no agency may undertake or approve the action until the federal final EIS has been completed and the agency has made the findings prescribed in § 235-9 of this chapter.
B.
Where a negative declaration or other written determination
that the action will not require a federal impact statement has been prepared
under the National Environmental Policy Act of 1969, the determination shall
not constitute compliance with this chapter.
C.
In the case of an action involving a federal agency for
which not federal draft and final EIS has been prepared, except where otherwise
required by law, a final decision by a federal agency shall not be controlling
on any county agency decision on the action.
D.
In the case where a federal draft and final EIS has been
prepared but does not address energy impacts and/or economic impacts, those
topics may be required to be addressed pursuant to this chapter.
The following fee schedule shall be applied by the county in order to
recover the costs of implementing this chapter:
A.
Where a county agency is initiating an action, there
shall be no fee.
B.
Where a proposed action involves an applicant for county
funding or approval, the fees charged shall be as follows:
(1)
When an environmental impact statement is involved, the
fee charged shall reflect the actual costs to the county lead agency for the
review or preparation of the statement, provided that an applicant may not
be charged a separate fee for both the review and preparation of the statement.
(2)
When an applicant does not choose to prepare an EIS,
the county lead agency shall provide the applicant, upon request, with an
estimate of the costs of the county lead agency to prepare such statement,
if the county lead agency chooses to prepare the EIS.
C.
For actions which are found to require a public hearing
pursuant to this chapter and the hearing is conducted by the county lead agency,
the fee charged shall include the total cost for physical accommodations,
if not held in county facilities; for copies of any transcripts associated
with the hearing; and for the newspaper notifications thereon.
A.
Submission of information:
(1)
Prior to the designation of a lead agency, an applicant
may withhold any information which the applicant believes to be entitled to
treatment as confidential business information, unless such information is
essential to the designation of a lead agency. If such information is essential
to the designation of a lead agency, all agencies receiving such information
voluntarily from the applicant, as a condition for its receipt, shall indicate,
in writing, to the applicant that such information shall not be divulged pending
designation of a lead agency and shall not be divulged thereafter unless a
final determination has been made that such information is not entitled to
treatment as confidential business information and the application has not
been withdrawn by the applicant prior to such final determinations. If such
application is withdrawn by the applicant before a final determination has
been made with regard to confidentiality, upon written request by the applicant,
all papers provided by the applicant to such agencies and any copies of such
papers in the possession of such agencies shall be returned or destroyed.
Upon designation of a lead agency, that lead agency shall determine the treatment
of confidential business information pursuant to the environmental quality
review regulations applicable to the designated lead agency. After designation
of a lead agency, upon written request by the applicant, all papers provided
by the applicant to agencies other than the lead agency and any copies of
such papers in the possession of such agencies shall be returned or destroyed.
(2)
Where an agency of the County of Monroe has been designated
as lead agency, an applicant, in submitting any data or other information
pursuant to this chapter concerning the potential environmental impacts of
a proposed action, may request that specifically identified data or information
be held as confidential business information and submit such specific data
or information separately from other data or information submitted pursuant
to this chapter. Such a request for confidential treatment shall be made by
the applicant, in writing, in a clear and unambiguous manner. At the time
that such a request is made by an applicant, the applicant shall furnish the
county lead agency with the name and address of the person or party to whom
any correspondence pursuant to such a request shall be sent or delivered.
B.
Upon receipt of such a request for confidential treatment,
the county lead agency shall make a determination as to whether or not the
requested business information is entitled to confidential treatment. Business
information shall be entitled to confidential treatment if:
(1)
The applicant has asserted a business confidentiality
claim, in writing, which has not been waived nor withdrawn;
(2)
The applicant has satisfactorily shown that it has taken
reasonable measures to protect the confidentiality of the information and
that it intends to continue to take such measures;
(3)
The information is not and has not been reasonably obtainable
without the applicant's consent by other persons, other than governmental
bodies, by use of legitimate means other than discovery based on a showing
of special need in a judicial or quasi-judicial proceeding; the information
is voluntarily submitted information and its disclosure would be likely to
impair the county's ability to obtain necessary information in the future;
(4)
No local, state or federal statute specifically requires
the disclosure of such information; and
(5)
The applicant has satisfactorily shown that such information
is a trade secret or, if disclosed, would cause substantial injury to the
applicant's competitive position.
C.
If the county lead agency determines that the information
is entitled to confidential treatment, the agency shall maintain the information
in confidence. The county lead agency shall inform the applicant and all other
agencies which, to its knowledge, have received such information of its determination
of confidentiality. The county lead agency's determination that information
is entitled to confidential treatment shall be binding upon all other county
agencies.
D.
If the county lead agency determines that the information
is not entitled to confidential treatment, notice of such denial of a business
confidentiality claim shall be made to the applicant as prescribed herein:
(1)
Prior to divulging any such business information, the
county lead agency shall send written notice by certified mail of the agency's
denial of the request for confidentiality and intent to release such information.
Such notice shall be made at least 10 calendar days prior to the release of
any such information and shall:
(a)
State the basis for the determination;
(b)
Identify the agency or other person proposing to release
the information and identify the date upon which it is proposed to release
such information;
(c)
Afford the applicant a reasonable opportunity to comment
on the proposed release and/or an opportunity to withdraw the application
of which the information is a part; and
(d)
State the address of the office to which the applicant's
comments should be addressed, the time allowed for submission of comments
and/or withdrawal of the application and that an applicant's failure
to furnish timely comments and/or withdraw the application shall constitute
a waiver of the applicant's claim of confidentiality.
(2)
When the county lead agency determines that it is necessary to release such information sooner to protect public health or the environment against an unreasonable risk of injury to the public health or the environment, the county lead agency may prescribe and make known to the applicant a shorter notification and comment and/or withdrawal period than prescribed in Subsection D(1) above, provided that actual notice to the applicant of the intent to release the information be given not less than 24 hours prior to the release of any such information. Such actual notice may be made by certified mail, may be personally delivered or may be made by telephone. If such notice is made by telephone, it shall be followed by written notice and a written record of the telephone conversation shall be made by the person giving notice.
E.
Pending final determination by the county lead agency of whether or not the requested business information is entitled to confidential treatment, such information shall be deemed to be confidential for purposes of this chapter. If the county lead agency determines that the information is not entitled to confidential treatment, such determination shall be deemed not to be final until the time allowed for submission of comments and/or withdrawal of the application, set forth in Subsection D(1)(d) above, has expired. If the applicant withdraws its application prior to final determination of confidentiality by the county lead agency, upon written request by the applicant, all papers provided by the applicant to the county lead agency and any copies of such papers in the possession of the county lead agency shall be returned or destroyed.
F.
No county officer (including elected county officials) or employee may disclose or use for his or her private gain or advantage any confidential business information so designated under this section. The County Executive shall promulgate rules and regulations to safeguard information accorded confidentiality pursuant to Subsections B and C above. Said rules and regulations shall include provisions for properly identifying and recording the names of all county officers and employees who have or are given access to such confidential information; and shall also include provisions that all county officers and employees who have or are given access to confidential information shall be required to sign a document, in such form as may be prescribed in said rules and regulations, acknowledging receipt of or access to such confidential information and that the unauthorized disclosure of such information may subject such officer or employee to disciplinary action and/or personal liability while employed by Monroe County or thereafter. Each county officer or employee who has custody or possession of confidential business information shall take appropriate measures, as set forth in said rules and regulations, to properly safeguard the confidentiality of any such material.
G.
For purposes of this section, only such county officers and employees of the county lead agency who are directly responsible for the evaluation of the application of which such confidential business information is a part shall be entitled to have access to, inspect or receive such data or information if the information has been accorded confidentiality pursuant to Subsections B and C above. The county lead agency may disclose confidential business information to other agencies directly involved in funding or approving the project of which the confidential business information is a part if:
(1)
The county lead agency receives a written request for
disclosure of such information from a duly authorized officer or employee
of such other agency;
(2)
The written request sets forth the official purpose for
which the information is needed;
(3)
The county lead agency provides notice to the involved
applicant of the specific information to be disclosed and to whom it is to
be disclosed, such notice to be by certified mail at least 10 days prior to
the disclosure of such information;
(4)
The applicant is given a reasonable period within which
to comment on the proposed disclosure; and
(5)
The other agency agrees, in writing, not to disclose further any of the information designated as confidential, pursuant to this section; and certifies, in writing, that it has adopted procedures or will take appropriate measures to properly safeguard the confidentiality of any such material at least as stringent as those set forth in this section and Subsection E above and the rules and regulations promulgated thereunder.
H.
The county lead agency shall inform an applicant if a
designation of confidentiality under this chapter may cause an environmental
review to be of questionable validity because of the restrictions that such
confidentiality may place upon public involvement in the environmental review
process.
I.
In making final determinations of confidentiality
under this chapter, the county lead agency, of necessity, must rely to a large
extent upon the information furnished by the applicant to substantiate the
applicant's claim of confidentiality. Such information furnished by the
applicant may not be verifiable by the county lead agency as to its accuracy.
In the event that the county is called upon to defend any such determination
made by the county lead agency that information is entitled to confidential
treatment, the applicant, as a condition of such application, shall cooperate
to the fullest extent practicable in the defense of such determination.
