N.Y. Environmental Conservation Law § 8-0109: Preparation of environmental impact statement

§ 8-0109. Preparation of environmental impact statement.

1. Agencies shall use all practicable means to realize the policies

and goals set forth in this article, 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.

2. All agencies (or applicant as hereinafter provided) shall prepare,

or cause to be prepared by contract or otherwise an environmental impact

statement on any action they propose or approve which may have a

significant effect on the environment. Such a statement shall include a

detailed statement setting forth the following:

(a) a description of the proposed action and its environmental

setting;

(b) the environmental impact of the proposed action including

short-term and long-term effects;

(c) any adverse environmental effects which cannot be avoided should

the proposal be implemented;

(d) alternatives to the proposed action;

(e) any irreversible and irretrievable commitments of resources which

would be involved in the proposed action should it be implemented;

(f) mitigation measures proposed to minimize the environmental impact;

(g) the growth-inducing aspects of the proposed action, where

applicable and significant;

(h) effects of the proposed action on the use and conservation of

energy resources, where applicable and significant, provided that in the

case of an electric generating facility, the statement shall include a

demonstration that the facility will satisfy electric generating

capacity needs or other electric systems needs in a manner reasonably

consistent with the most recent state energy plan;

(i) effects of proposed action on solid waste management where

applicable and significant;

(j) effects of any proposed action on, and its consistency with, the

comprehensive management plan of the special groundwater protection area

program, as implemented by the commissioner pursuant to article

fifty-five of this chapter;

(k) effects of any proposed action on disadvantaged communities,

including whether the action may cause or increase a disproportionate

pollution burden on a disadvantaged community; and

(l) such other information consistent with the purposes of this

article as may be prescribed in guidelines issued by the commissioner

pursuant to section 8-0113 of this chapter.

Such a statement shall also include copies or a summary of the

substantive comments received by the agency pursuant to subdivision four

of this section, and the agency response to such comments. The purpose

of an environmental impact statement is to provide detailed information

about the effect which a proposed action is likely to have on the

environment, to list ways in which any adverse effects of such an action

might be minimized, and to suggest alternatives to such an action so as

to form the basis for a decision whether or not to undertake or approve

such action. Such statement should be clearly written in a concise

manner capable of being read and understood by the public, should deal

with the specific significant environmental impacts which can be

reasonably anticipated and should not contain more detail than is

appropriate considering the nature and magnitude of the proposed action

and the significance of its potential impacts.

3. An agency may require an applicant to submit an environmental

report to assist the agency in carrying out its responsibilities,

including the initial determination and, (where the applicant does not

prepare the environmental impact statement), the preparation of an

environmental impact statement under this article. The agency may

request such other information from an applicant necessary for the

review of environmental impacts. Notwithstanding any use of outside

resources or work, agencies shall make their own independent judgment of

the scope, contents and adequacy of an environmental impact statement.

4. As early as possible in the formulation of a proposal for an action

but not more than one year from the establishment of a lead agency, the

responsible agency shall make an initial determination as to whether an

environmental impact statement need be prepared for the action. In

making such determination for any proposed action the responsible agency

shall consider whether such action may cause or increase a

disproportionate pollution burden on a disadvantaged community that is

directly or significantly indirectly affected by such action. When an

action is to be carried out or approved by two or more agencies, such

determination shall be made as early as possible after the designation

of the lead agency.

With respect to actions involving the issuance to an applicant of a

permit or other entitlement, the agency shall notify the applicant in

writing of its initial determination specifying therein the basis for

such determination. Notice of the initial determination along with

appropriate supporting findings on agency actions shall be kept on file

in the main office of the agency for public inspection.

If the agency determines that such statement is required, the agency

or the applicant at its option shall prepare or cause to be prepared a

draft environmental impact statement. If the applicant does not exercise

the option to prepare such statement, the agency shall prepare it, cause

it to be prepared, or terminate its review of the proposed action. Such

statement shall describe the proposed action and reasonable alternatives

to the action, and briefly discuss, on the basis of information then

available, the remaining items required to be submitted by subdivision

two of this section. The purpose of a draft environmental statement is

to relate environmental considerations to the inception of the planning

process, to inform the public and other public agencies as early as

possible about proposed actions that may significantly affect the

quality of the environment, and to solicit comments which will assist

the agency in the decision making process in determining the

environmental consequences of the proposed action. The draft statement

should resemble in form and content the environmental impact statement

to be prepared after comments have been received and considered pursuant

to subdivision two of this section; however, the length and detail of

the draft environmental statement will necessarily reflect the

preliminary nature of the proposal and the early stage at which it is

prepared.

For any action for which the agency determines that such statement is

not required and which would take place in a special groundwater

protection area, as defined in section 55-0107 of this chapter, the

agency shall show how such action would or would not be consistent with

the comprehensive management plan of the special groundwater protection

program, as implemented by the commissioner pursuant to article

fifty-five of this chapter.

The draft statement shall be filed with the department or other

designated agencies and shall be circulated to federal, state, regional

and local agencies having an interest in the proposed action and to

interested members of the public for comment, as may be prescribed by

the commissioner pursuant to section 8-0113. In addition, unless

impracticable, the draft statement shall be posted on a

publicly-available Internet website. The website posting of such draft

statement may be discontinued when the environmental impact statement is

posted pursuant to subdivision six of this section.

5. After the filing of a draft environmental impact statement the

agency shall determine whether or not to conduct a public hearing on the

environmental impact of the proposed action. If the agency determines to

hold such a hearing, it shall commence the hearing within sixty days of

the filing and unless the proposed action is withdrawn from

consideration shall prepare the environmental impact statement within

forty-five days after the close of the hearing, except as otherwise

provided. The need for such a hearing shall be determined in accordance

with procedures adopted by the agency pursuant to section 8-0113 of this

article. If no hearing is held, the agency shall prepare and make

available the environmental impact statement within sixty days after the

filing of the draft, except as otherwise provided.

Notwithstanding the specified time periods established by this

article:

(a) an agency shall vary the times so established herein for

preparation, review and public hearings to coordinate the environmental

review process with other procedures relating to review and approval of

an action. An application for a permit or authorization for an action

upon which a draft environmental impact statement is determined to be

required shall not be complete until such draft statement has been filed

and accepted by the agency as satisfactory with respect to scope,

content and adequacy for purposes of subdivision four of this section.

Commencing upon such acceptance, the environmental impact statement

process shall run concurrently with other procedures relating to the

review and approval of the action so long as reasonable time is provided

for preparation, review and public hearings with respect to the draft

environmental impact statement; and

(b) for actions involving applications for a permit or authorization,

the agency shall prepare and make available the environmental impact

statement within two years after the date a draft environmental impact

statement is determined to be required, unless the agency extends the

deadline in writing and, in consultation with an applicant and at the

discretion of the agency, establishes a new deadline that provides only

so much additional time as is necessary to complete the environmental

impact statement, considering any changes made by the applicant to the

project design after the issuance of the scoping document that result in

new significant environmental impacts, or additional actions that could

not have been reasonably anticipated during scoping, or the failure of

an applicant to timely provide necessary information despite good faith

effort by an agency, or delay in circumstances beyond the control of an

agency or an applicant.

6. To the extent as may be prescribed by the commissioner pursuant to

section 8-0113, the environmental impact statement prepared pursuant to

subdivision two of this section together with the comments of public and

federal agencies and members of the public, shall be filed with the

commissioner, made available to the public, and, unless impracticable,

posted on a publicly-available Internet website prior to acting on the

proposal which is the subject of the environmental impact statement. The

website posting of such statement may be discontinued one year after all

necessary permits have been issued by the federal, state and local

governments.

7. a. An agency may charge a fee to an applicant in order to recover

the costs incurred in preparing or causing to be prepared or reviewing a

draft environmental impact statement or an environmental impact

statement on the action which the applicant requests from the agency;

provided, however, that an applicant may not be charged a separate fee

for both the preparation and review of such statements. The technical

services of the department may be made available on a fee basis

reflecting the costs thereof, to a requesting agency, which fee or fees

may appropriately be charged by the agency to the applicant under rules

and regulations to be issued under section 8-0113.

b. Such rules and regulations shall require the applicant to reimburse

the conservation fund, as established pursuant to subdivision (a) of

section eighty-three of the state finance law, in order to recover all

costs incurred in preparing or causing to be prepared or reviewing a

draft environmental impact statement or an environmental impact

statement by employees of the department, whose salary and expenses are

paid, in whole or in part, from the conservation fund.

8. When an agency decides to carry out or approve an action which has

been the subject of an environmental impact statement, it shall make an

explicit finding that the requirements of this section have been met and

that consistent with social, economic and other essential

considerations, to the maximum extent practicable, adverse environmental

effects revealed in the environmental impact statement process will be

minimized or avoided.

9. An environmental impact statement shall be prepared for any action

found to have a significant impact on the special groundwater protection

area, as defined in section 55-0107 of this chapter. Such statement

shall meet the requirements of the most detailed environmental impact

statement required by this section or by any such rule or regulation

promulgated pursuant to this section.