NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1286
SPONSOR: Pretlow TITLE OF BILL:
An act to amend a chapter of the laws of 2022 amending the environmental
conservation law relating to the location of environmental facilities,
as proposed in legislative bills numbers S. 8830 and A. 2103-D, in
relation to the legislative intent of such chapter, and in relation to
the effectiveness thereof; and to amend the environmental conservation
law, in relation to disproportionate impacts of environmental facility
siting on disadvantaged communities; and relating to the scope of
certain provisions of the environmental conservation law and the author-
ity of the commissioner of environmental conservation thereunder
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to implement technical amendments to Chapter
840 of the.Laws of 2022.
SUMMARY OF PROVISIONS:
This chapter amendment would:
* clarify that the effects of any proposed actions on disadvantaged
communities, including whether the action may cause or increase a
disproportionate pollution burden, must be considered as part of the
State Environmental Quality Review Act (SEQRA) process, provided that
such proposed actions have not previously been designated as Type II
actions;
* define the specific types of environmental permits that would be
subject to the requirements to prepare "existing burden reports";
* clarify when existing burden reports would be reqUired, including:
* new projects subject to an applicable permit that would cause more
than a de minimis amount of pollution;
* permit renewals, without an existing burden report in the prior ten
years, or modifications that may cause or contribute more than a de
minimis amount, of pollution;
* provide greater clarity regarding DEC's responsibilities when review-
ing permits including:
* requirements for community outreach and consideration of any resulting
comments as well as the burden reports;
* a prohibition on the issuance of permits for a:
* new project that will cause or contribute more than a de minimis
amount of pollution;
* permit modification that would significantly increase the existing
disproportionate pollution burden; and,
* permit renewal if the project would significantly increase the exist-
ing disproportionate pollution burden;
* require DEC to include actions to implement reasonable and practicable
operational changes as part of the permitting process that would reduce
the pollution burden;
* require DEC, in consultation with the Department of Health to develop
the scope of the "existing burden report, following a. public comment
period, to include:
* relevant baseline data on existing burdens;
* environmental or public health stressors already borne by the disad-
vantaged community; the potential or projected contribution of the
proposed action to existing pollution burdens in the community; and,
* the existing and potential benefits of the project to the community
and any operational changes to the project that would reduce the
pollution burden on the disadvantaged community
* clarify that the requirements of this act are,in addition, and not in
lieu of, other. compliance requirements; and,
* provide additional time for compliance.
JUSTIFICATION:
In 2022, the Legislature passed A.2103-D, signed into law as Chapter
840, in recognition of the inequitable pattern in the siting of environ-
mental facilities in disadvantaged communities. This legislation, which
is intended to ensure consideration of cumulative impacts, amended the
-State Environmental Quality Review Act (SEQRA), established require-
ments for the preparation of existing burden reports, and prohibited DEC
from issuing permits that adversely impacted disadvantaged communities,
built on the recognition of disadvantaged communities first provided in
the 2019 Climate Leadership .and Community Protection Act. The CLCPA was
adopted with the belief that no community should have to bear a
disproportionate pollution burden with the ultimate goal being that any
existing burdens should be actively reduced. Chapter 840 and this legis-
lation are intended to implement that intent and supplement the existing
reviews already required under the CLCPA's section seven.
The Executive requested this chapter amendment to provide greatest
certainty to the Department and permittees. This legislation will also
help ensure that when reviewing applicable permits and projects the
Department will act to maximize the pollution-reduction benefits to the
disadvantaged community by rejecting new permits associated with
projects that will cause or contribute more than a de minimis amount of
pollution and permit modifications that will significantly increase the
existing pollution burden. The Department is also required to include,
and permittees must implement, operational changes to reduce pollution
burdens. The Department also has the ability, as part of the existing
burden report, to consider the existing and potential benefits of the
project to the community. These benefits are intended to include alle-
viation of existing pollution burdens, but purposefully do not include
consideration of economic benefits.
This legislation is also intended to 'ensure that the Department remains
accountable to disadvantaged communities by conducting public hearings
and other community outreach, and .considering any resulting comments,
both as part of permit reviews and as part their development of proce-
dures, including, but not limited to the existing burden report.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect immediately; provided, however that sections
one, two, three, four, five, six, seven, eight, ten, eleven and twelve
of this act shall take effect on the same date and in the same manner as
a chapter of the laws of 2022 amending the Environmental Conservation
Law relating to the location of environmental facilities, as proposed in
legislative bills numbers S. 8830 and A. 2103-D, takes effect.
STATE OF NEW YORK
________________________________________________________________________
1286
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Environmental Conservation
AN ACT to amend a chapter of the laws of 2022 amending the environmental
conservation law relating to the location of environmental facilities,
as proposed in legislative bills numbers S. 8830 and A. 2103-D, in
relation to the legislative intent of such chapter, and in relation to
the effectiveness thereof; and to amend the environmental conservation
law, in relation to disproportionate impacts of environmental facility
siting on disadvantaged communities; and relating to the scope of
certain provisions of the environmental conservation law and the
authority of the commissioner of environmental conservation thereunder
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 1 of a chapter of the laws of 2022 amending the
2 environmental conservation law relating to the location of environmental
3 facilities, as proposed in legislative bills numbers S. 8830 and A.
4 2103-D, is amended to read as follows:
5 Section 1. Legislative intent. The legislature finds and declares that
6 each community in the state should equitably share the responsibilities,
7 burdens, and benefits of managing and solving environmental health
8 issues and the state's environmental problems and the facilities neces-
9 sary to accomplish such ends. The legislature further declares that
10 there has been an inequitable pattern in the siting of environmental
11 facilities in minority and economically distressed communities, which
12 have borne a disproportionate and inequitable share of such facilities.
13 As a result of the inequitable pattern in the siting of environmental
14 facilities, minority and economically distressed communities bear a
15 greater environmental health burden due to the cumulative pollution
16 exposure from multiple facilities. Consistent with its commitment to
17 providing equal justice for its citizens, the state has a responsibility
18 to establish requirements for the consideration of such decisions by
19 state and local governments in order to [insure equality of treatment]
20 ensure no community bears a disproportionate pollution burden, and to
21 actively reduce any such burden for all communities.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04225-01-3
A. 1286 2
1 § 2. Section 8-0105 of the environmental conservation law is amended
2 by adding a new subdivision 10 to read as follows:
3 10. "Pollution" shall have the same meaning as defined by subdivision
4 nineteen of section 1-0303 of this chapter.
5 § 3. Paragraphs (k) and (l) of subdivision 2 of section 8-0109 of the
6 environmental conservation law, as amended by a chapter of the laws of
7 2022 amending the environmental conservation law relating to the
8 location of environmental facilities, as proposed in legislative bills
9 numbers S. 8830 and A. 2103-D, are amended to read as follows:
10 (k) effects of any proposed action on disadvantaged communities,
11 including whether the action may cause or increase a disproportionate
12 pollution burden on a disadvantaged community; and
13 (l) such other information consistent with the purposes of this arti-
14 cle as may be prescribed in guidelines issued by the commissioner pursu-
15 ant to section 8-0113 of this chapter[; and
16 (l) effects of any proposed action on disadvantaged communities,
17 including whether the action may cause or increase a disproportionate or
18 inequitable or both disproportionate and inequitable pollution burden on
19 a disadvantaged community].
20 § 4. The opening paragraph of subdivision 4 of section 8-0109 of the
21 environmental conservation law, as amended by a chapter of the laws of
22 2022 amending the environmental conservation law relating to the
23 location of environmental facilities, as proposed in legislative bills
24 numbers S. 8830 and A. 2103-D, is amended to read as follows:
25 As early as possible in the formulation of a proposal for an action,
26 the responsible agency shall make an initial determination as to whether
27 [or not] an environmental impact statement need be prepared for the
28 action. In making such determination for any proposed action [that is
29 not a minor project as defined in subdivision three of section 70-0105
30 of this chapter] the responsible agency shall consider whether such
31 action may cause or increase a disproportionate [or inequitable or both
32 disproportionate and inequitable] pollution burden on a disadvantaged
33 community that is directly or significantly indirectly affected by such
34 action. When an action is to be carried out or approved by two or more
35 agencies, such determination shall be made as early as possible after
36 the designation of the lead agency.
37 § 5. Subparagraph (i) of paragraph (c) of subdivision 2 of section
38 8-0113 of the environmental conservation law, as amended by a chapter of
39 the laws of 2022 amending the environmental conservation law relating to
40 the location of environmental facilities, as proposed in legislative
41 bills numbers S. 8830 and A. 2103-D, is amended to read as follows:
42 (i) Actions or classes of actions that are likely to require prepara-
43 tion of environmental impact statements[, including actions which may
44 cause or increase, either directly or indirectly, a disproportionate or
45 inequitable or both disproportionate and inequitable pollution burden on
46 a disadvantaged community];
47 § 6. Paragraph (b) of subdivision 2 of section 8-0113 of the environ-
48 mental conservation law, as amended by a chapter of the laws of 2022
49 amending the environmental conservation law relating to the location of
50 environmental facilities, as proposed in legislative bills numbers S.
51 8830 and A. 2103-D, is amended to read as follows:
52 (b) [(i)] Criteria for determining whether or not a proposed action
53 may have a significant effect on the environment, taking into account
54 social and economic factors to be considered in determining the signif-
55 icance of an environmental effect, including whether it may cause or
A. 1286 3
1 increase a disproportionate pollution burden on a disadvantaged communi-
2 ty;
3 [(ii) Such criteria shall include consideration of the extent to which
4 a proposed action may reasonably be expected to cause or increase a
5 disproportionate or inequitable or both disproportionate and inequitable
6 burden on disadvantaged communities;]
7 § 7. Section 70-0118 of the environmental conservation law, as added
8 by a chapter of the laws of 2022 amending the environmental conservation
9 law relating to the location of environmental facilities, as proposed in
10 legislative bills numbers S. 8830 and A. 2103-D, is amended to read as
11 follows:
12 § 70-0118. Disproportionate impacts on disadvantaged communities.
13 1. For the purposes of this section:
14 (a) "Disadvantaged communities" shall have the same meaning as subdi-
15 vision five of section 75-0101 of this chapter.
16 (b) ["Existing burden report" shall mean the report required by this
17 section describing the existing pollution burden in a disadvantaged
18 community.
19 2. When issuing] "Applicable permit" shall mean a permit [for any
20 project that is not a minor project as defined in subdivision three of
21 section 70-0105 of this article and that], excluding a general permit,
22 applied for pursuant to:
23 (i) title fifteen of article fifteen of this chapter for a facility
24 withdrawing and using over twenty million gallons per day of water for
25 cooling purposes;
26 (ii) article seventeen of this chapter;
27 (iii) article nineteen of this chapter;
28 (iv) title seventeen of article twenty-three of this chapter; or
29 (v) title three, title seven, title nine or title eleven of article
30 twenty-seven of this chapter.
31 2. (a) When a new project subject to an applicable permit may [direct-
32 ly or indirectly affect] cause or contribute more than a de minimis
33 amount of pollution to any disproportionate pollution burden on a disad-
34 vantaged community, the department shall require the applicant to
35 prepare or cause to be prepared an existing burden report [and shall
36 consider such report in determining whether such project may cause or
37 contribute to, either directly or indirectly, a disproportionate or
38 inequitable or both disproportionate and inequitable pollution burden on
39 a disadvantaged community].
40 (b) In the case of an application for renewal or modification of an
41 applicable permit not subject to the provisions of paragraph (a) of this
42 subdivision which may cause or contribute more than a de minimis amount
43 of pollution to any disproportionate pollution burden on a disadvantaged
44 community the department shall require the applicant to prepare or cause
45 to be prepared an existing burden report; provided, however that the
46 department may elect not to require such existing burden report if the
47 permit would serve an essential environmental, health, or safety need of
48 the disadvantaged community for which there is no reasonable alterna-
49 tive.
50 (c) Notwithstanding the requirements of paragraphs (a) or (b) of this
51 subdivision, no existing burden report shall be required for an applica-
52 tion for a renewal of a permit if an existing burden report has been
53 prepared with respect to such permit within the previous ten years.
54 3. [No permit shall be approved or renewed by the department if it may
55 cause or contribute to, either directly or indirectly, a dispropor-
56 tionate or inequitable or both disproportionate and inequitable
A. 1286 4
1 pollution burden on a disadvantaged community.] (a) When considering an
2 application for an applicable permit, the department shall consider the
3 existing burden report, if any, and an administrative record that
4 includes, but is not limited to, comments received from the public in
5 the disadvantaged community.
6 (b) The department shall not issue an applicable permit for a new
7 project if it determines that the project will cause or contribute more
8 than a de minimis amount of pollution to a disproportionate pollution
9 burden on the disadvantaged community.
10 (c) In the case of an application for a modification of an applicable
11 permit, the department shall not issue an applicable permit if it deter-
12 mines that the issuance of the permit would significantly increase the
13 existing disproportionate pollution burden on the disadvantaged communi-
14 ty.
15 (d) In the case of an application for renewal of an applicable permit,
16 the department shall not issue an applicable permit if it determines
17 that the project would significantly increase the existing dispropor-
18 tionate pollution burden on the disadvantaged community.
19 4. The department shall require actions to implement any appropriate
20 operational changes which would reduce the pollution burden on the
21 disadvantaged community as a condition of an applicable permit, only if
22 such actions are reasonable and practicable, as determined by the
23 department.
24 5. The department, in consultation with the department of health,
25 shall develop the scope of the existing burden report and may adapt such
26 requirements based on whether a permit application is for a new project,
27 modification, or a renewal of a permit. The department shall provide for
28 at least a thirty-day public comment period prior to finalizing the
29 scope of the report. The report shall provide for an assessment of the
30 following information:
31 (a) relevant baseline data on existing burdens, including from rele-
32 vant criteria used to designate the particular disadvantaged communities
33 pursuant to subdivision one of section 75-0111 of this chapter;
34 (b) the environmental or public health stressors already borne by the
35 disadvantaged community as a result of existing conditions located in or
36 affecting the disadvantaged community;
37 (c) the potential or projected contribution of the proposed action to
38 existing pollution burdens in the community; and
39 (d) existing and potential benefits of the project to the community
40 including increased housing supply, or alleviation of existing pollution
41 burdens that may be provided by the project, including operational
42 changes to the project that would reduce the pollution burden on the
43 disadvantaged community.
44 § 8. Subdivision 1 of section 70-0107 of the environmental conserva-
45 tion law, as amended by a chapter of the laws of 2022 amending the envi-
46 ronmental conservation law relating to the location of environmental
47 facilities, as proposed in legislative bills numbers S. 8830 and A.
48 2103-D, is amended to read as follows:
49 1. The department, after public hearing, shall adopt rules and regu-
50 lations to assure the efficient and expeditious administration of this
51 article. Such rules and regulations shall include but not be limited to
52 provisions regarding notice, review, public participation and public
53 hearings. [Such rules and regulations shall also include the form and
54 content of an existing burden report which shall, at a minimum, include
55 baseline monitoring data collected in the affected disadvantaged commu-
56 nity within two years of the application for a permit or approval and
A. 1286 5
1 shall identify: (a) each existing pollution source or categories of
2 sources affecting a disadvantaged community and the potential routes of
3 human exposure to pollution from that source or categories of sources;
4 (b) ambient concentration of regulated air pollutants and regulated or
5 unregulated toxic air pollutants; (c) traffic volume; (d) noise and
6 odor levels; (e) exposure or potential exposure to lead paint; (f) expo-
7 sure or potential exposure to contaminated drinking water supplies; (g)
8 proximity to solid or hazardous waste management facilities, wastewater
9 treatment plants, hazardous waste sites, incinerators, recycling
10 facilities, waste transfer facilities and petroleum or chemical manufac-
11 turing, storage, treatment or disposal facilities; (h) the potential or
12 documented cumulative human health effects of the foregoing pollution
13 sources; (i) the potential or projected contribution of the proposed
14 action to existing pollution burdens in the community and potential
15 health effects of such contribution, taking into account existing
16 pollution burdens.]
17 § 9. Section 9 of a chapter of the laws of 2022 amending the environ-
18 mental conservation law relating to the location of environmental facil-
19 ities, as proposed in legislative bills numbers S. 8830 and A. 2103-D,
20 is amended to read as follows:
21 § 9. This act shall take effect [on the one hundred eightieth day] two
22 years after it shall have become a law[; provided that section three of
23 this act shall not apply to any person who has received an initial
24 determination pursuant to subdivision 4 of section 8-0109 of the envi-
25 ronmental conservation law prior to such date and provided further that
26 section five of this act shall not apply to any determination of signif-
27 icance made prior to such date].
28 § 10. No addition or amendment made to the environmental conservation
29 law under this act or under a chapter of the laws of 2022 amending the
30 environmental conservation law relating to the location of environmental
31 facilities, as proposed in legislative bills numbers S. 8830 and A.
32 2103-D, shall limit the existing authority of any state entity to deny
33 or condition permits, licenses, or other administrative approvals.
34 § 11. No addition or amendment made to the environmental conservation
35 law under this act or under a chapter of the laws of 2022 amending the
36 environmental conservation law relating to the location of environmental
37 facilities, as proposed in legislative bills numbers S. 8830 and A.
38 2103-D, shall relieve any person from compliance with any other require-
39 ment to not disproportionately burden disadvantaged communities as iden-
40 tified pursuant to section 75-0111 of the environmental conservation
41 law.
42 § 12. The commissioner of environmental conservation is authorized and
43 directed to promulgate rules and regulations in accordance with subdivi-
44 sion one of section 70-0107 of the environmental conservation law to
45 effectuate the provisions of this act and a chapter of the laws of 2022
46 amending the environmental conservation law relating to the location of
47 environmental facilities, as proposed in legislative bills numbers S.
48 8830 and A. 2103-D.
49 § 13. This act shall take effect immediately; provided, however that
50 sections one, two, three, four, five, six, seven, eight, ten, eleven and
51 twelve of this act shall take effect on the same date and in the same
52 manner as a chapter of the laws of 2022 amending the environmental
53 conservation law relating to the location of environmental facilities,
54 as proposed in legislative bills numbers S. 8830 and A. 2103-D, takes
55 effect.
