PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 572.22, 588.8; and addition of section 572.15 to Title 9 NYCRR.
Statutory authority:
Executive Law, sections 804(9), 809(14) and (15)
Subject:
Emergency projects.
Purpose:
The primary of the proposed rule is to define when jurisdictional land use and development constitutes an emergency project.
Text of final rule:
A new section 572.15 is added to 9 NYCRR to read as follows:
Section 572.15 Emergency Projects.
(a) General. This section provides the procedural requirements for the issuance of an emergency certification or an emergency recovery authorization for a project undertaken to address an emergency. No other requirements of this Subtitle shall apply to an emergency project. It is within the agency’s discretion to determine whether a specific event or conditions constitutes an emergency and whether proposed land use or development is an emergency project.
(b) Definitions used in this section.
(1) Emergency means: (i) a specific event or condition that presents an immediate threat to life or property; or (ii) a specific storm event or calamity that has been declared to be an emergency by federal or state officials.
(2) Emergency project means land use or development that is immediately necessary for the protection of life or property and that would otherwise require a permit, order, or variance.
(3) Emergency certification means a written determination by the agency that an emergency exists or has existed and that an emergency project may be undertaken or has been undertaken to prepare for or mitigate the emergency.
(4) Emergency recovery authorization means a written determination by the agency authorizing an emergency project that is necessary for repair, remediation or recovery from an emergency as defined in subdivision (b)(1) of this section and that is not covered by an emergency certification.
(c) Emergency Certification Procedures. (1) To obtain an emergency certification, a project sponsor shall: (i) notify the agency with sufficient information to allow for an agency determination whether an emergency as defined in paragraphs (b)(1)(i) and (ii) of this section exists or existed and whether the project is an emergency project as defined in subdivision (b)(2) of this section; and (ii) obtain an emergency certification prior to undertaking an emergency project or as soon thereafter as practicable.
(2) The agency shall issue an emergency certification upon a determination that: (i) an emergency exists or existed; and (ii) the emergency project is limited in scope to the land use and development necessary to prepare for or mitigate the emergency. The agency shall have two business days from receipt of sufficient information to issue an emergency certification.
(3) The emergency certification shall include a description of the land use and development comprising the emergency project, and may include conditions to limit the timing and duration of the emergency project and its impact on any of the natural, scenic, aesthetic, ecological, wildlife, historic, recreational, or open space resources of the Park.
(4) An emergency certification may only be issued by the executive director, deputy director – regulatory programs, and such other agency staff as the executive director shall designate in writing.
(d) Emergency Recovery Authorization Procedures. (1) A project sponsor proposing an emergency project under this subdivision shall notify the agency prior to undertaking the emergency project and provide the agency with the following information:
(i) a brief statement identifying the emergency, as defined in paragraph(b)(1) of this section that created the need for the emergency project;
(ii) a description of the proposed land use and development and why it is necessary for repair, remediation or recovery from an emergency;
(iii) documentation of existing conditions;
(iv) a location map;
(v) actions proposed to be taken to minimize environmental impacts; and
(vi) any additional information requested by the agency necessary for the issuance of an emergency recovery authorization.
(2) The agency shall issue an emergency recovery authorization for an emergency project upon a determination that: (i) the emergency project is directly related to an emergency as defined in paragraph (b)(1) of this section; (ii) the emergency project is limited in scope to the land use and development necessary to repair, remediate or recover from the emergency; and (iii) the emergency project will cause the least change, modification, disturbance, or damage to the environment as practicable. The agency shall have 5 business days to respond to a request for an emergency recovery authorization upon receipt of sufficient information.
(3) The emergency recovery authorization shall include a description of the land use and development comprising the emergency project and may include conditions to limit the timing and duration of the emergency project and its impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational, or open space resources of the Park.
(4) An emergency recovery authorization may only be issued by the executive director, deputy director – regulatory programs and such other agency staff as the executive director shall designate in writing.
(e) Limitations. (1) The agency may modify or rescind an emergency certification or emergency recovery authorization if new information demonstrates that an emergency does not, or no longer, exists or that the emergency project is not, or no longer, necessary or appropriate.
(2) Any person who undertakes land use or development that otherwise would require a permit or variance from the Agency that is not described in an emergency certification or emergency recovery authorization issued to such person pursuant to this section may be subject to enforcement action.
Subdivision (a) of section 572.22 of 9 NYCRR is amended to read as follows:
(a) Appeals of actions taken by agency staff [the deputy director – regulatory programs]. (1) Any project sponsor or variance applicant may appeal the following actions of the deputy director-regulatory programs to the agency:
(i) determinations whether a project or variance application is complete, and the contents of requests for additional information;
(ii) conditions precedent to the issuance of, and conditions imposed in, permits issued pursuant to the authority delegated in section 572.11 of this Part;
(iii) determinations pursuant to section 572.19(b) of this Part whether a request to amend a permit or variance involves a material change;
(iv) denial or conditional approval of requests to amend permits or variances, or requests to renew permits; or
(v) any other action with respect to a project or a variance pursuant to delegated authority.
(2) Any person may appeal any determination made pursuant to section 572.15 of this Part declining to issue an emergency certification or emergency recovery authorization.
Section 588.8 of 9 NYCRR is amended to read as follows:
This Title includes all regulations of the Adirondack Park Agency effective as of June 17, 2015 [September 25, 2013].
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 572.15(b)(1), (d)(2) and 588.8.
Text of rule and any required statements and analyses may be obtained from:
Jennifer McAleese Hubbard, Senior Attorney, Adirondack Park Agency, 1133 Rt. 86, Ray Brook, New York 12977, (518) 891-4050, email: APARuleMaking@apa.ny.gov
Revised Regulatory Impact Statement
A revised RIS is not required because the changes to the proposed rule are minor in nature and do not necessitate revision to the previously published RIS. The first change to the proposed rule deleted the word “natural” from the definition of emergency. The second change corrected a grammatical error. The final change is an amendment to 9 NYCRR § 588.8 updating the effective date of the Agency’s regulations.
Revised Regulatory Flexibility Analysis
A Statement in Lieu of Regulatory Flexibility Analysis was previously published. The two minor changes to the Rule, nor the amendment to 9 NYCRR § 588.8, do not necessitate the need for a revised Statement in Lieu of Regulatory Flexibility Analysis, nor does the Rule, as adopted, now require a Regulatory Flexibility Analysis. The Rule, as adopted, does not impose additional reporting, record keeping or other compliance requirements on small businesses and local governments.
Revised Rural Area Flexibility Analysis
A Statement in Lieu of Rural Area Flexibility Analysis was previously published. The two minor changes to the Rule, nor the amendment to 9 NYCRR § 588.8, do not necessitate the need for a revised Statement in Lieu of Rural Area Flexibility Analysis, nor does the Rule, as adopted, now require a Rural Area Flexibility Analysis. The Rule has the same effect whether the area is considered rural or not and the proposed rules impose no additional reporting, record keeping or other compliance requirements on small businesses, or on public or private entities in rural areas.
Revised Job Impact Statement
A Statement in Lieu of Job Impact Statement was previously published. The two minor changes to the Rule, nor the amendment to 9 NYCRR § 588.8, do not necessitate the need for a revised Statement in Lieu of Job Impact Statement, nor does the Rule, as adopted, now require a Job Impact Statement. The Rule, as adopted, is not expected to create any substantial adverse impact upon jobs and employment opportunities in the Adirondack Park.
Initial Review of Rule
As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2020, which is no later than the 5th year after the year in which this rule is being adopted.
Assessment of Public Comment
Assessment of Public Comment on Proposed Emergency Project Regulations
May 6, 2015
Staff assessment of public comment
Public comment on the proposed rule was limited to three commenters. The focus of the comments was primarily on how the proposed rule would be implemented by the Adirondack Park Agency (APA). Two municipal leaders from Essex County praised APA’s coordination during past emergencies, and asked about how the proposed rule might affect that. The Adirondack Council supported the rule overall, but made suggestions to ensure that environmental concerns would be adequately taken into account, and asked how APA would address any abuses of the rule. Staff do not believe that the comments raise issues that require changes to the proposed rule. A summary of specific comments and staff’s response follows.
Public hearing comments
1. Randall Douglas, Chairman, Essex County Board of Supervisors and Supervisor, Town of Jay.
Mr. Douglas stated that one concern is that, in an emergency, the need to act is immediate and there may not be time to do more than reach out to APA by telephone prior to taking steps to protect our properties and people.
Staff response:
Obtaining an emergency certification beforehand or providing telephone notice is recommended, but it is not required. The proposed rule does not require any prior notification to APA before a response action is taken to protect life or property. An emergency certification may be obtained before or after the response action is undertaken.
Mr. Douglas asked what would happen if APA and the town differ as to the nature or scope of a response action taken by the town to protect life or property in an emergency?
Staff response:
The proposed rule does not alter APA’s commitment to work closely with municipalities with respect to response actions taken during emergencies. APA recognizes the need for split-second decision-making by municipalities in emergencies, and the rule conforms to APA’s goal of ensuring that response actions are what is reasonably necessary to address the emergency, and not substantially more than what is needed.
Mr. Douglas noted that FEMA only reimburses costs incurred by municipalities, and that FEMA’s processing of reimbursement requests takes a long time, placing a financial burden on municipalities. In connection with emergency recovery authorizations, he asked APA to work with municipalities to take into account the financial burden the FEMA process places on them when deciding how quickly recovery authorization work must be done.
Staff response:
APA does and will continue to take into account all of the challenges faced by municipalities that are recovering from an emergency when working with municipalities with respect to recovery activities.
Mr. Douglas also added that he appreciated APA working with the DEC and DOT to streamline the application for emergency projects so Towns do not have to duplicate everything to the different agencies.
2. William Ferebee, Vice Chairman, Essex County Board of Supervisors, and Supervisor, Town of Keene.
Mr. Ferebee stated that in order for this process to work it is going to take education for them as supervisors, their DPW’s and highway departments, to know what to do in case of emergencies.
Mr. Ferebee asked if it will take a declared state of emergency to apply for emergency certifications and emergency recovery authorizations?
Staff response:
There are two types of emergencies that the rule applies to: (i) a specific event or condition that presents an immediate threat to life or property; or (ii) a specific storm event or natural calamity that has been declared to be an emergency by federal or state officials.
Mr. Ferebee asked how the Agency will make the public aware of what they should do in the case of an emergency on their property and what will APA do if people take emergency actions and are unaware of APA’s rule?
Staff response:
Staff are developing a flyer describing the proposed rule that that can be shared with municipalities and property owners. In an emergency, staff will be prepared to advise property owners of the procedure and requirements to obtain an emergency certification and, if necessary, an emergency recovery authorization. Generally, property owners already call APA for advice if they believe an emergency exists and they need to take action. If time allows, that is the prudent course for property owners to take. The rule seeks to ensure that property owners do have a genuine emergency and that what is done in response is limited to what is needed to abate the emergency.
Mr. Ferebee asked who makes the decision whether the town has exceeded what is allowed by the rule for emergency response actions?
Staff response:
As noted above, APA is committed to working with municipalities with respect to response actions taken to address emergencies. Procedurally, the Deputy Director for Regulatory Programs makes that determination. His determination can be appealed to the Agency if the municipality disagrees with the determination that was made.
Mr. Ferebee agreed with Mr. Douglas that streamlining the application for emergency projects would lessen the burden on local governments.
Written public comment
The Agency received one public comment letter from the Adirondack Council (attached). Staff offer the following responses to the Council’s specific comments:
1. Comment on “Emergency Certification” - The issuance of an emergency certification as defined in Section 572.15(c)(3) should be expanded to include some sort of notification by the APA when emergency project work has or will occur in highly sensitive areas that may need additional mitigation work or post-emergency remediation. If emergency projects will not require prior approval, applicants should be notified in some manner if those projects are occurring in areas that will clearly need additional post-response attention once lives and property are secured and safe.
Staff response:
Response work under an emergency certification will likely involve shoreline and/or wetlands, so there will always be the potential that post-response remediation will be necessary and APA will make that point clear in the certification. APA will coordinate with other agencies and with the municipalities and/or property owners involved to obtain any necessary post-response remediation work. The proposed Emergency Recovery Authorization may be used for these purposes.
2. Comment on “Emergency Recovery Authorization Procedures”: As defined in 572.15(d)(v), should be expanded to include not only actions that need to be taken to minimize environmental impacts, but also post-response recommendation that address any large scale environmental impacts that occur as a result of the emergency work. These recommendations do not need to be binding but should serve at least as an educational component to the Authorization.
Staff response:
One of the primary uses of emergency recovery authorizations will be to remediate environmental impacts related to an emergency action that was undertaken. “Minimization of impacts” in 572.15(d)(1)(v) relates to limiting the impacts of any remediation work as it is undertaken.
3. Comment on “Limitations”: Section 572.15(e)(2) needs to clarify what enforcement action would occur if work is conducted that would have otherwise needed a permit or variance or fails to meet the criteria as an approved emergency project. After-the-fact approval places a higher burden on the staff to ensure that work that would fall outside the emergency regulation definitions is appropriately handled.
Staff response:
This section is intended to provide notice that abuses of the “emergency project” rule may be subject to enforcement action. As a practical matter, staff expect that most issues that arise involving an emergency will be resolved cooperatively. Whether and when enforcement action is appropriate will depend on the specific facts and circumstances of a given situation. Any exercise of enforcement authority will be consistent with existing APA enforcement guidelines and practice.
