Part 487 Regulatory Impact Statement Summary
6 NYCRR Part 487 Analyzing Environmental Justice Issues in Siting Major Electric Generating Facilities Pursuant to Public Service Law Article 10
Summary of Regulatory Impact Statement
1. Statutory Authority:
Public Service Law (PSL) Article 10 (Article 10) requires the Department to promulgate regulations for the analysis of environmental justice issues associated with siting a major electric generating facility (EJ regulations). Paragraphs (f), (g), and (h) of PSL section 164(1) set forth specific requirements an applicant must include in its EJ analysis in accordance with the EJ regulations.
2. Legislative Objectives:
Article 10 is intended to streamline the siting process for energy sources having a capacity 25 megawatts or more, and to improve public participation in power plant siting decisions. Article 10 is also intended to reduce disproportionate environmental impacts in overburdened communities.
Article 10 requires that the Department's EJ regulations include the requirements that an applicant analyze cumulative impacts to air quality; prepare a comprehensive demographic, economic and physical description of the community in which the facility is located, compared and contrasted with the county and adjacent communities; and evaluate any significant and adverse disproportionate environmental impacts of the proposed facility during its construction and operation. Article 10 delegates to the Department to establish in EJ regulations how an applicant must comply with these requirements.
These proposed regulations are intended to ameliorate certain negative impacts of power plants to be located in overburdened EJ communities through an augmented review (i) of the existing environmental conditions of the community in which the proposed facility is to be located, and (ii) the expected environmental and public health impacts of the proposed facility on that community. The Department is applying the plain language of the statutory provisions, where applicable, but is proposing additional requirements as necessary to ensure the applicant undertakes a meaningful EJ analysis, including a thorough evaluation of any significant and adverse disproportionate environmental impacts, to enable the Board to make its findings on EJ issues.
Section 487.1 states the purpose of the EJ regulations is to establish a regulatory framework for an EJ analysis to enhance public participation and review of environmental and public health impacts upon EJ communities and reduce disproportionate environmental impacts in overburdened communities. They are not intended to create any right to judicial review involving the compliance or noncompliance of any person with the regulations.
Section 487.2 confirms the regulations apply only to persons seeking a Certificate authorizing the construction of a major electric generating facility pursuant to Article 10.
Section 487.3 sets forth the applicable definitions, many of which are used in Article 10 or the Department's Commissioner Policy 29, Environmental Justice and Permitting (CP-29). The definitions for "minority community" and "low-income community" include flexibility because updated demographic data for New York was just recently released and it is impossible to tell at this time how this information may impact the definitions.
Section 487.4 requires the applicant to define the Impact Study Area, or area most likely to be affected by the proposed facility's adverse impacts. It will encompass at least a one-half mile radius around the location of the proposed facility, and must be increased by the applicant based on site-specific factors.
Section 487.5 instructs the applicant to determine if an EJ area is present within the Impact Study Area. If an EJ area is present, the applicant must undertake a full EJ analysis. This threshold inquiry is consistent with the intent of Article 10's EJ provisions and CP-29. The applicant must also complete a full EJ analysis for any reasonable and available alternate location it identifies if that location's Impact Study Area contains an EJ area.
Section 487.6 sets forth the general requirements and procedures for completing an EJ analysis. The applicant must initiate its EJ analysis as early as practicable during the pre-application process to facilitate an expeditious process and assure early and meaningful public and stakeholder involvement. The EJ analysis must be written clearly and concisely in plain English and contain all relevant and material facts in sufficient detail to enable the Board to make explicit findings related to EJ issues.
Section 487.7 explains how to perform the cumulative impact analysis of air quality required pursuant to PSL section 164(1)(g). This analysis is geared to assessing EJ-specific impacts and is only required if the proposed facility is likely to affect an EJ area. It is required in addition to any other air quality analysis that may be required for the proposed facility under applicable regulations.
Section 487.8 establishes the "Comparison Areas," against which the Impact Study Area is to be compared and contrasted, as the county in which the facility is proposed to be located and the adjacent communities. If the facility is proposed to be located in one of the five boroughs of New York City, a third Comparison Area will be the entire city.
Section 487.9 describes how the applicant must prepare the comprehensive demographic, economic and physical descriptions of the Impact Study Area and Comparison Areas pursuant to PSL section 164(1)(h). The descriptions will include reasonably available information on population, racial and ethnic characteristics, income levels, open space, and public health, including publicly available data on asthma and cancer. Consistent with the language in paragraph (h) that the descriptions be comprehensive, they must include information beyond the list of minimum requirements, particularly with respect to physical conditions. The applicant must identify and evaluate the facility-related impacts in the Impact Study Area and add them to existing physical conditions to obtain a comprehensive description of the Impact Study Area that would result from the construction and operation of the proposed facility.
Section 487.10 requires the applicant to compare and contrast the physical conditions of the Impact Study, including the impacts from construction and operation of the proposed facility, to the physical conditions in each Comparison Area to evaluate whether the proposed facility will result in or contribute to any significant and adverse disproportionate environmental impacts in the Impact Study Area, as required pursuant to PSL section 164(1)(h) and (f). If the applicant's evaluation indicates the facility would result in a significant and adverse disproportionate environmental impact, the applicant must discuss any measures that it will take to avoid, offset or minimize the impact to the maximum extent practicable and the effect of those measures.
Section 487.11 requires the applicant to prepare a Statement of Environmental Justice Issues that summarizes the applicant's final EJ analysis.
3. Needs and Benefits:
These EJ regulations are being proposed to fulfill a statutory obligation of the Department; therefore, there is a need to promulgate these regulations.
The intent of these regulations is to promote the fair treatment and meaningful involvement of all people in facility siting by requiring a heightened analysis of environmental impacts and additional protections against significant and adverse disproportionate environmental impacts in low-income and/or minority EJ areas, which have historically been overburdened by the adverse environmental and public health impacts of industrial facilities.
Accordingly, the proposed regulations require, in EJ areas only, a heightened analysis of environmental impacts and additional protections against significant and adverse disproportionate environmental impacts. In this manner, the proposed regulations - like CP-29 -- provide additional protections to EJ areas with the ultimate goal of equal environmental treatment of all communities.
This approach is also consistent with the 2009 New York State Energy Plan, which specifically addresses EJ in an Environmental Justice Issue Brief. The EJ Issue Brief recognizes that low-income communities and minority communities have historically been overburdened as a result of air pollution from energy-generating facilities, small stationary sources, and dense traffic and states that "[t]o reduce the risk of overburdening communities of color and low income communities in the future, siting procedures should provide for thorough environmental review and effective participation of concerned stakeholders in the decision-making processes."
These regulations are consistent with recommendations of New York State's Environmental Justice Interagency Task Force, June 10, 2009 report of Draft Recommendations. The first recommendation of the Task Force is to provide for increased community representation and access to decision making processes, recognizing that "[a] basic tenet of environmental justice is that low-income communities and minority communities have often been left out of government decision making as a result of a historical lack of access to government."
These regulations will result in a broader and more detailed evaluation of environmental and public health impacts of the proposed facility that will benefit the community as a whole in addition to any affected EJ area, and will facilitate the applicant's consultation with the public during the Article 10 proceedings. The applicant's EJ analysis will inform the Board's finding of whether the applicant has avoided, offset, or minimized any significant and adverse disproportionate environmental impact to the maximum extent practicable, which is mandatory before the Board may grant a Certificate.
(a) Costs to regulated parties for the implementation of and continuing compliance with the rule. The Department estimates that costs to the industry of completing an EJ analysis will be incremental because of the large costs already associated with complying with the Clean Air Act, Environmental Conservation Law Article 19, and other requirements of Article 10, and because persons seeking permits for power plants in the absence of Article 10 have been addressing EJ concerns pursuant to the State Environmental Quality Review Act and CP-29. The cost to the applicant of conducting the analysis of cumulative impacts on air quality is estimated to range from $0 to $30,000 depending on a number of factors. The Department is unable to estimate the specific costs of any other elements of the applicant's EJ analysis. If the Impact Study Area does not contain an EJ area, the applicant's cost would be less and limited to the costs associated with defining the Impact Study Area and determining that no EJ area is present. The cost of the EJ analysis would be minimal in comparison to the total cost of siting a major electric generating facility.
(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule. The majority of costs for the Department, the Department of Public Service (DPS), and the Department of Health are expected to be personal service costs, particularly the need for staff to participate in the Article 10 proceedings. There will be incremental costs associated with these EJ regulations.
These regulations will not impose any costs on local governments, unless a local government itself is the applicant for a Certificate pursuant to Article 10. In this case, costs similar to those discussed for regulated parties will apply.
5.Local Government Mandates:
These regulations will not impose any program, service, duty, or responsibility upon, or mandate the expenditure of funds by, any sector of local government.
There are no specific paperwork requirements in these regulations except for the Statement of Environmental Justice Issues summarizing the applicant's final EJ analysis and justifying its conclusions.
There are no relevant rules, statutes, or other legal requirements of the State or federal government that duplicate, overlap, or conflict with these regulations. Likewise, there are no duplicative relevant federal requirements.
8. Alternative Approaches:
The Department is statutorily required to promulgate these EJ regulations; therefore, a "no action" approach is not available. The Department considered the "Final Report of the New York State Department of Environmental Conservation Disproportionate Adverse Environmental Impact Analysis Work Group" and sought and considered input received from stakeholders during the development of these regulations. The Department also reviewed the efforts of EPA and other states, particularly California.
9. Federal Standard:
There is no federal regulatory framework for analyzing EJ issues applicable to the siting of power plants; therefore, these regulations do not exceed any minimum standards of the federal government.
10. Compliance Schedule:
There is no period of time required to enable the industry to achieve compliance with these regulations. Regulated persons will need to comply as soon as the Board begins accepting preliminary scoping statements from persons seeking a Certificate pursuant to Article 10.