dissents and votes to modify the order appealed from, by adding a provision that Local Laws, 1980, No. 12 of the County of Suffolk (hereinafter Local Law No. 12) is valid, and otherwise to affirm the order appealed from, with the following memorandum:
I am not persuaded by the majority’s finding of a fundamental inconsistency between Local Law No. 12 and ECL article 39 necessitating a declaration that the former is invalid. Such a conclusion, in my view, makes the term "inconsistent” the fundamental equivalent of "different” and, by means of such a rigid definition, serves to "vitiate the flexibility of home rule as enunciated by the Legislature and the executive branch in enacting the Municipal Home Rule Law” (Town of Clifton Park v C. P. Enters., 45 AD2d 96, 98).
It is beyond cavil that municipalities are endowed with broad powers to enact local legislation concerning the health, safety, welfare and morals of their residents (NY Const, art IX, § 2; Dougal v County of Suffolk, 102 AD2d 531, 532, affd 65 NY2d 668). In addition to powers granted in the New York Constitution, the statute of local governments or any other law, the State Legislature expressly conferred upon local governments the power to adopt local laws for the protection and enhancement of their physical and visual environment (Municipal Home Rule Law § 10 [1] [ii] [a] [11]). The aforesaid power is not, however, without limitation. Even where the State has not preempted an entire area, a local law may be struck down as inconsistent with existing State laws if the court finds either that the local law permits something which has been specifically prohibited by the State law or the converse, that the local law proscribes an act which has been specifically permitted by the State (Counsel for Owner Occupied Hous, v Koch, 119 Misc 2d 241, 245, affd 61 NY2d 942 for *646reasons stated at App Div, citing Matter of Kress & Co. v Department of Health of City of N. Y, 283 NY 55; People v Cook, 34 NY2d 100; People v Lewis, 295 NY 42).
The mere fact, however, that both the State and a municipality seek to regulate an activity does not of itself create an inconsistency. Where a local law imposes greater restrictions or conditions in connection with a regional comprehensive plan, such law neither conflicts with nor is preempted by State law (see, Monroe-Livingston Sanitary Landfill v Town of Caledonia, 72 AD2d 957, 958, affd 51 NY2d 679). Moreover, the plaintiff appears to have been diverted by the false assumption that lack of uniformity is tantamount to inconsistency or contradiction (Sonmax, Inc. v City of New York, 43 NY2d 253, 258). Said assumption is patently erroneous.
A review of ECL article 39 which took effect some two months after the effective date of Local Law No. 12, reveals that it does not specifically authorize the sale of the plaintiff’s product. The act does provide that no person shall distribute, sell, offer or use any sewage system cleaner or additive containing any restricted chemical material in concentrations in excess of one part per 100 (ECL 39-0105). It further empowers the commissioner to promulgate regulations establishing methods for identification and qualification of ingredients in sewage system cleaners and additives used in restricted geographical areas (ECL 39-0107 [1]). Manufacturers of sewage system cleaners or additives distributed or sold in said areas are required to furnish the commissioner with information regarding the chemical components thereof (ECL 39-0107 [2]).
In response to the plaintiff’s inquiry concerning the applicability of ECL article 39 to its products, the New York State Department of Environmental Conservation unequivocally noted that said products had not, as of then, been approved for sale in Suffolk County in accordance with Local Law No. 12. The plaintiff was further advised that its original formulations would continue to be regarded as prohibited products in both Nassau and Suffolk Counties. With respect to the plaintiff’s new formulations, which were to be identified by a sunburst symbol, the department noted that they could be sold in Nassau County and in Suffolk County if and only if approved for sale by the county in the future. Thus, the plaintiff can, at best, claim that its products have not been totally prohibited by the commissioner. This is patently divergent from a claim of State authorization. On the contrary, the department has explicitly left the matter open to local regulation.
*647The silence of the State Legislature with respect to the chemical found in the plaintiff's product should not be interpreted as an expression of intent. "Any time that the State law is silent on a subject, the likelihood is that a local law regulating that subject will prohibit something permitted elsewhere in the State. That is the essence of home rule” (People v Cook, 34 NY2d 100, 109, supra). Were this a case where the State had expressly granted plaintiff the right to market its products in Suffolk County, Local Law No. 12 might well be said to be inconsistent with the State law. To reach such a conclusion on the instant set of facts, however, would render the power of local governments to regulate completely illusory. The concept of inconsistency serves as a check against local laws which would contradict or be incompatible or inharmonious with the general laws of the State (Town of Clifton Park v C. P. Enters., 45 AD2d 96, 98, supra). Such is plainly not the case here.
Assuming, arguendo, that an inconsistency between Local Law No. 12, and ECL article 39 had been shown, the action of the municipality could still be upheld. It is well established that even where inconsistency with State law is shown, the local law will nevertheless be upheld provided that there exists some special local problem supporting the variance from the statute (see, People v Cook, supra, pp 109-110; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 351). The instant case presents precisely such a situation as evidenced by the fact that the groundwaters of Suffolk County have received one of the few designations in the country as sole source aquifers. As set forth in the affidavit of the Supervisor of Drinking Water in the Suffolk County Department of Health Services, the groundwater reservoir under Long Island is unique insofar as it is the only source of water supply. The movement of precipitation through the soil to recharge the underground water table, the sole source of groundwater replenishment, is slow, and, consequently, more susceptible to contamination on its way to the watertable. The situation in Suffolk County is different from that in Nassau County where residents are served by deeper public water supply wells. The shallow private wells upon which many residents of Suffolk County must depend for their drinking water are more susceptible to groundwater contamination from a multitude of chemicals.
Stated succinctly, the fact that the State Legislature enacted a special law applicable only to Suffolk and Nassau Counties (ECL 39-0103 [5]) cogently evinces the fact that the *648conditions prevailing on Long Island deserve special treatment. Accordingly, even if Local Law No. 12 has been shown to be inconsistent with the State law, the existence of significant local problems support the variance.
I note further that absent any manifestation of a clear cut intention on the part of the State Legislature to occupy the entire field of regulation of sewage system cleaners and additives, the plaintiff’s argument that Local Law No. 12 is preempted by State legislation must fail. The instant case is in marked contrast to the situation presented in Consolidated Edison Co. v Town of Red Hook (60 NY2d 99, 105), where the legislative history surrounding the enactment of Public Service Law article VIII evinced the need for the State to control determinations regarding the proposed siting of major steam electric generating facilities within the State. In contrast, the application of one general prohibitory statute concerning a limited number of chemicals does not evince a desire on the part of the Legislature to preempt localities in the restricted geographical area from passing ordinances concerning sewage system additives. Where the use of a particular substance has not been expressly ordered or proscribed by the commissioner pursuant to a pervasive regulatory scheme, substantive regulation is best left to the discretion of local authorities.
Inasmuch as Local Law No. 12 was neither inconsistent with, nor preempted by, any State legislation, I vote to sustain the denial of the plaintiffs motion for summary judgment and the granting of the defendant’s cross motion for summary judgment in its favor, and to declare the local law valid. [See, 126 Misc 2d 463.]