Express Terms Summary for 6 NYCRR Part 487
Analyzing Environmental Justice Issues in Siting of Major Electric Generating Facilities Pursuant to Public Service Law Article 10
Summary of Express Terms
Section 487.1 states the purpose of Part 487 is to establish a regulatory framework for undertaking an EJ analysis associated with the siting of a major electric generating facility in New York State pursuant to Article 10 of the Public Service Law. The regulations are intended to enhance public participation and review of environmental impacts of proposed major electric generating facilities upon EJ communities and reduce disproportionate environmental impacts in overburdened communities. They are not intended to, nor shall they be construed to create any right to judicial review involving the compliance or noncompliance of any person with Part 487.
Section 487.2 states that Part 487 applies to all persons seeking a Certificate of Environmental Compatibility and Public Need pursuant to Public Service Law Article 10.
Section 487.3 sets forth specific definitions that apply to Part 487. The substantive definitions are:
'Adjacent communities' means the geographic area contiguous to and surrounding the Impact Study Area of a radius equal to the radius of the Impact Study Area, except that in New York City adjacent communities shall be limited to a maximum one mile radius.
'Health outcomes' means counts and rates of health-related events in a population. Examples of health-related events are hospitalizations for diseases such as asthma or cardiovascular disease, births of infants with low birth weight, and new diagnoses of cancer.
'Comparison Area' means a geographic area used to analyze and compare physical conditions and impacts against the Impact Study Area.
'Environmental justice area' or 'EJ area' means a minority or low-income community that may bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.
'Environmental setting' means the descriptive information that portrays or captures various aspects of the existing environmental condition within an area including existing burdens relating to the environment and public health.
'Impact Study Area' means the geographic area of at least a one-half mile radius around the location of a proposed major electric generating facility in which the population is likely to be affected by at least one potentially significant adverse environmental impact resulting from the construction and/or operation of the facility that is different in type, scope, or magnitude compared to the population located in the broader geographic area surrounding the facility.
'Low-income community' means a census block group, or contiguous area with multiple census block groups, where 23.59% or more of the population have an annual income that is less than the poverty threshold; except that the percentage population and income threshold may be revised to reflect updated demographic data.
'Minority community' means a census block group, or contiguous area with multiple census block groups, where the minority population is equal to or greater than 51.1% in an urban area or 33.8% in a rural area; except that the specific percentages may be revised to reflect updated demographic data.
'Minority population' means a population that is identified or recognized by the U.S. Census Bureau as Hispanic, African-American or Black, Asian and Pacific Islander, or American Indian.
'Pre-application' or 'pre-application process' means the period or procedures pursuant to Public Service Law section 163 during which an applicant must file with the Board a preliminary scoping statement; intervenor funding is disbursed for early public involvement; there is an opportunity for interested persons to comment on the preliminary scoping statement; and interested persons may enter into stipulations.
'Reasonably available' means obtainable from existing data, studies and records, without requiring collection or development of new data.
Section 487.4 establishes that the Impact Study Area for the proposed facility is a minimum of a one-half mile radius around the proposed location of the facility; but must be increased based on site-specific factors.
Section 487.5 requires the applicant to determine whether the Impact Study Area contains one or more EJ areas by identifying if there is a minority or low-income community within the Impact Study Area. If no area meeting the definition of minority or low-income community is present within the Impact Study Area, an EJ area is present if: (1) a census block group or contiguous area with multiple census block groups has a minority or low-income population that is above 75% of the stated thresholds for constituting a minority or low-income community, and (2) reasonably available air quality data, and health outcome data available to the public statewide on the zip code level, reveals that the Impact Study Area may bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies, when compared to the county as a whole, or if the Impact Study Area is in the City of New York, when compared to the city as a whole. If an EJ area is present the applicant must undertake a full EJ analysis.
Section 487.6 sets forth the general requirements and procedures for completing an applicant's EJ analysis. This section outlines the information which an applicant must include in its preliminary scoping statement if no EJ area is present within the Impact Study Area and the additional information that must be included if an EJ area is present. It requires that the applicant initiate its EJ analysis early in the pre-application process to facilitate an expeditious pre-application process and enable early and meaningful public involvement. This section includes an outline of the information that the applicant must include in its final EJ analysis submitted with its application. The applicant's EJ analysis must be clearly and concisely written in plain language so that it can be read and understood by the public and include sufficient detail about the nature and magnitude of any significant and adverse disproportionate environmental impacts of the proposed facility to enable the New York State Board on Electric Generation Siting and the Environment to make explicit findings related to EJ issues.
Section 487.7 explains how an applicant that is required to complete a full EJ analysis and whose proposed facility is an air emission source, must conduct its required cumulative impact analysis of air quality. The analysis must be in accordance with an air modeling protocol approved by the Department and shall consider the impacts of the proposed facility with respect to air pollutants on ambient air quality within a circular area extending from the location of the proposed facility to the larger of the following distances, to be referred to as the EJ Air Impact Area (EJAIA): (1) one-half mile; (2) the Impact Study Area; or (3) the distance to the furthest receptor location of maximum impact for any pollutants modeled for the proposed facility. The analysis shall include all criteria air pollutants emitted from the proposed facility, except that ozone precursor emissions will be addressed pursuant to the provisions of 6 NYCRR Part 231; mercury, as applicable, and to the extent that emissions data are reasonably available and acceptable to the Department; and a limited set of non-criteria pollutants selected from those required to be identified in the applicant's preliminary scoping statement based on which non-criteria pollutants have projected concentrations that may exceed quantified public health-based air criteria, as determined by the Department in consultation with the Department of Health, and to the extent that emissions data are reasonably available and acceptable to the Department. The sources to be explicitly modeled in the analysis shall include the proposed facility and: (1) any additional facility for which an application has been submitted and determined to be in compliance with PSL section 164 and which is located in the EJAIA plus 6 miles, (2) any major stationary source located in the EJAIA plus 6 miles that has not yet commenced operations and which has received a permit from the Department at least sixty days prior to the date of the applicant's filing of an application pursuant to PSL section 164, (3) any other permitted stationary source located within the EJAIA that emits an air pollutant in an amount at or above the significant project thresholds, and (4) on a site-specific basis, at the Department's discretion, any air emission source which is located contiguous to the proposed facility and for which the necessary emissions data is reasonably available and acceptable to the Department.
Section 487.8 defines the Comparison Areas against which the Impact Study Area is to be compared and contrasted as (1) the county in which the facility is proposed to be located, and (2) adjacent communities. In addition, if the proposed facility is located in New York City, the city as a whole must be used as a third Comparison Area.
Section 487.9 explains how the applicant must prepare the comprehensive demographic, economic and physical descriptions of the Impact Study Area and the Comparison Areas, which must accurately represent the community character and environmental setting of each area. The comprehensive descriptions shall include reasonably available data on population, racial and ethnic characteristics, income levels, and physical conditions, including public health; air quality, including National-Scale Air Toxics Assessment data; the number and concentration of specific industrial facilities or sites; open space; historic and cultural resources and community or neighborhood character, including existing patterns of population concentration, distribution, or growth; visual and aesthetic resources; ambient sound level; and vehicle and pedestrian traffic. The applicant shall also identify and evaluate the potential significant adverse environmental and public health impacts of the proposed facility on the Impact Study Area, during both its construction and operation, incorporating results from the applicant's cumulative impact analysis of air quality pursuant to Section 487.7 and its evaluation of expected environmental and public health impacts of the facility required pursuant to paragraph (b) of subdivision 1 of Public Service Law section 164 and add those impacts to the existing physical conditions in the Impact Study Area to obtain a comprehensive description of the physical conditions of the Impact Study Area that would result from the construction and operation of the proposed facility.
Section 487.10 explains how an applicant must compare and contrast the physical conditions in the Impact Study Area, including the impacts from construction and operation of the proposed facility, to the physical conditions in each of the Comparison Areas to evaluate whether any significant and adverse disproportionate environmental impacts in the Impact Study Area may result from the construction and/or operation of the proposed facility. In the event that the applicant's evaluation indicates that the facility will result in or contribute to any significant and adverse disproportionate environmental impacts in the Impact Study Area, the applicant shall identify measures that it will take to avoid, offset or minimize each impact to the maximum extent practicable and include in its evaluation a discussion of the effect these measures would have on the applicant's conclusions about any significant and adverse disproportionate environmental impacts. The applicant shall avoid any disproportionate impact to the maximum extent practicable for the duration that the Certificate is issued. If the applicant cannot avoid the impact, the applicant shall minimize the impact to the maximum extent practicable. If the impact cannot be completely avoided or minimized, the applicant shall offset the impact, with priority given to offset measures that will benefit the area where the degree of significant and adverse disproportionate impact is greatest.
Section 487.11 requires the applicant to prepare a Statement of Environmental Justice Issues, summarizing its final EJ analysis, including the evaluation of any significant and adverse disproportionate environmental impacts in the Impact Study Area. The statement must provide a detailed explanation of the rationale for any conclusions made, identify the individual studies and investigations relied upon in conducting the EJ analysis, and articulate why any measure to avoid, minimize, or offset any impact will, to the maximum extent practicable, avoid, minimize or offset any identified significant and adverse disproportionate impact, including how the measure can be verified and its cost.