Part 487 Assessment of Public Comments
Summary of Assessment of Public Comments 6 NYCRR Part 487
Comments received from January 18, 2012 through March 15, 2012
38 comments were submitted in response to the Department's proposed regulations, resulting in 189 distinct comments, although many were similar. This summary highlights the key issues raised and the Department's responses to those issues.
Minority/Low-income Thresholds (39): Many comments suggested the applicant should perform an EJ analysis for all overburdened communities, while some stated the applicant should perform an EJ analysis for all proposed facilities. Many comments stated that the thresholds may exclude some EJ communities, and if a "screen" is used there should be a mechanism to ensure EJ communities are not excluded. Other comments suggested the Department consider using health data to determine which communities to include. Several comments related to use of outdated Census data, and some stated the 2010 Census data is flawed, particularly for poverty data. A few comments recommended the regulations limit those communities for which an EJ analysis is required and questioned the need for Section 487.5(b) or (c). The Department disagreed that an EJ analysis should be required for all communities as inconsistent with the intent to require an additional review of impacts for EJ communities. The Department explained there is no definition of "overburdened" in New York; however, consistent with the purpose of Article 10, the regulations use long-established demographics on race, ethnicity and income used in CP-29, the Department's EJ Policy, which establishes a mechanism for identifying Potential EJ Areas. Section 487.5 (b) and (c) are intended to ensure that inaccuracies in data or shifts in demographics do not exclude areas that should receive an EJ analysis. Section 487.5(c)(2) was revised to modify the threshold margin from 85% to 75% to more fully capture shifts in populations, and require a closer examination of areas that are statistically borderline prior to excluding them from a full EJ analysis. The Department also discussed that it will be reviewing and updating CP-29 and will consider the inadequacies of the current 2010 Census.
Impact Study Area/Comparison Areas (19): Many comments sought an Impact Study Area (ISA) larger than one-half mile and stated the size of the ISA should not be at the applicant's discretion. Several comments appeared to confuse the ISA with the area modeled for cumulative air impacts. Other comments criticized that the ISA was restricted to a radius when impacts are not. Finally, some comments made specific suggestions for revising the definition of the ISA. The Department responded that both the use of a radius and the default size of the ISA are based on Article 10 Section 164(1)(h). Further, the one-half mile radius is the minimum radius, to be expanded based on site-specific factors. The Department explained that a larger radius may not be appropriate, especially in suburban or urban settings, and that it does not believe it should stray from the statutory language as its experience has shown that a radius works for modeling impacts. In response to comments, the Department revised Section 487.4 to clarify that the applicant "shall" increase the ISA based on site-specific factors and made a minor revision to the definition of ISA in Section 487.3. Some comments were in favor of requiring New York City as a third Comparison Area, another thought it should be voluntary. One comment suggested amending Section 487.8(b) to clarify that New York City must be used when any portion of the ISA is within the City. Several comments suggested removing the one-mile limit for "adjacent communities." The Department agreed that New York City should be used as a Comparison Area if the facility will be located in the City and did not agree that the City should be used if any portion of the ISA falls within the City. The Department revised Section 487.8(b) to clarify this intent. The Department also revised the definition of "adjacent communities" to make the one mile limit applicable only in New York City.
Cumulative Impact Analysis of Air Quality (34): A few comments expressed concern that by not including ozone, smog would not be adequately addressed. The Department explained that ozone is a regional pollutant formed through chemical reaction between NOx and VOCs and because of the complexities of ozone formation, its impacts are not evaluated on a source-by source basis; however, local impacts of NOx are modeled. Many comments sought inclusion of an expanded list of emissions and emission sources, such as mobile and minor sources, localized emissions, and fugitive emissions, as well as specific pollutants that are known to be emitted by certain facilities, while another comment stated that an inordinate amount of sources need to be modeled. A few comments recommended that the regulations address cross-pollutant and aggregate impacts and the multiple pathways through which humans are exposed to pollutants. The Department explained that a measure of background sources is included in background air quality values and that all relevant pollutants will be modeled, and that a multi-pathway assessment will be required as necessary. One comment said that the regulations result in double counting of existing source emissions and another that the analysis is comprehensive and therefore does not need to allow for inclusion of contiguous sources. Another comment expressed concern that the EJAIA will be too large based on the "third" distance of maximum impacts. The Department responded that Section 487.7 is consistent with current guidance and it does not believe the EJAIA will be unreasonably large. Several comments stated that the limited set of non-criteria pollutants is too vague and the Department should provide guidance on what is required. The Department explained that the protocol and the health-based criteria used to determine the non-criteria pollutants to be modeled will be similar to those currently used under SEQR and CP-29. The Department also revised Section 487.7(b)(3) to clarify the set of non-criteria pollutants to be modeled is based on the pollutants to be emitted by the facility and required to be identified by the applicant. Finally, one comment disagreed with the Department's cost estimate for conducting the cumulative analysis. The Department explained that it is intended to be an estimate of the incremental additional cost and that since a modeling assessment will be required in all cases, the cost of the EJ-specific cumulative analysis will not be significant.
Descriptions/Evaluation of Disproportionate Impacts (15): Some comments concurred with the descriptions; others suggested that too much information is required, such as information on existing facilities. One comment stated that the applicant should not be required to examine existing burdens, especially since the EJ Work Group could not reach a consensus, but applicants may use existing burdens to determine offset and mitigation measures. The Department responded that it is essential to include the listed facilities because EJ communities have historically been overburdened with polluting industrial facilities and the Department will assist applicants with compiling this data. Some comments expressed concern that if the EJ Work Group could not reach a consensus on how to determine disproportionate impacts, the applicant won't be able to do so. The Department acknowledged that it would have been helpful if there was a consensus; however, the fact that no consensus was reached does not relieve the Department of its obligation to establish a methodology. Several comments opposed the use of regulatory thresholds for measuring the significance of the facility's impacts, as well as the use of "generally excepted" methods for evaluating physical conditions. The Department explained that regulatory thresholds are appropriate measures for evaluating significance but that they are not the only measures; the applicant must also consider other factors. The Department explained that generally accepted methods are important to ensure the quality and validity of the applicant's evaluations and assessment; however, parties may seek to introduce at hearing any legitimate or credible methodologies for assessing cumulative and disproportionate impacts. One comment stated that the lack of clarity suggests that every EJ community will have disproportionate impacts. The Department responded that it anticipates that EJ areas will likely be disproportionately impacted, which is the reason for Article 10's EJ provisions; however, this does not mean that the proposed facility will result in or contribute to significant and adverse disproportionate impacts.
No Mechanism or Standard to Reject or Deny an Application (7): The Department received several comments suggesting that there should be a trigger or maximum number of facilities in a community that would result in denying the application and some suggested that this was a loophole in the regulations. The Department responded that Article 10 does not contemplate the automatic rejection of an application or denial of a Certificate because a community is already overburdened and that it is solely the Board's decision to grant or deny a Certificate.
Measures to Avoid/Minimize/Offset Disproportionate Impacts (10): Several comments stated that the regulations should provide more guidance on offset measures. The Department replied that it believes there is enough guidance provided as the appropriate offsets will be case-specific and should be determined with community input, and also provided some examples of offsets. Other comments suggested that the regulations be clarified so that if an impact cannot be fully avoided or minimized that it must still be offset. The Department revised Section 487.10 to clarify this intent. One comment stated the regulations must clarify that the applicant must offset any disparity found across any comparison. The Department revised the regulations to clarify the applicant must compare the ISA against each Comparison Area but does not believe the regulations should prescribe how the applicant weighs differences among the comparisons.
Vague or Inconsistent Criteria or Terms (13): Several comments stated that definitions or provisions were unclear and will hinder implementation or interpretation of the rule. One comment suggested that it would result in even a re-powering project being likely to cause disproportionate impacts. The Department replied to these comments by adding a definition of health outcomes, and making minor revisions to some definitions as well as some minor clarifying revisions, but believes that otherwise, the definitions and language provide adequate guidance to applicants, and cannot be more prescriptive as an EJ analysis is case-specific.
Regulations Exceed Scope of Article 10 (6): One commenter submitted several comments that the regulations exceed the Department's authority or what is expressly required in Article 10. The Department replied that Section 164(1)(f) gives the Department broad authority to promulgate these regulations, and while the regulations generally use the language contained in Article 10, they include additional requirements where necessary to ensure a meaningful evaluation of disproportionate impacts. In response to one of the comments, the Department revised Section 487.11 to eliminate any ambiguity.
General (46): Many comments discussed existing environmental and health conditions that burden minority and low-income communities, and several comments affirmed the regulations would help communities participate in the process; however, some comments stated the regulations fall short of Article 10's goals. The Department responded that the purpose of the regulations is to evaluate disproportionate impacts in these communities, including cumulative air impacts and health outcomes. The Department agreed that the regulations will assist communities in participating in the Article 10 process and disagreed that the regulations will not achieve the goals of Article 10. Several comments were about Indian Point; supporting or opposing the closure, or stating that existing facilities should be included in these regulations because if Indian Point closes there will be more reliance on emitting facilities which should be considered. Several comments stated support for alternative energy while one comment suggested that clean energy sources be exempt from doing an EJ analysis. The Department replied that the potential closure of Indian Point, as well as prioritizing alternative energy sources, is outside the scope of the regulations. A few comments stated the regulations do not affirmatively require outreach to EJ stakeholders specifically. The Department disagreed and believes that Article 10, these regulations, and DPS's draft regulations provide ample involvement of EJ stakeholders.