Bill Text: NY A01718 | 2023-2024 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Establishes an indirect source review for heavy distribution warehouse operations; requires the department of environmental conservation to conduct a study regarding zero-emissions zones.

Spectrum: Partisan Bill (Democrat 19-0)

Status: (Introduced) 2024-05-31 - print number 1718c [A01718 Detail]

Download: New_York-2023-A01718-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         1718--B

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 20, 2023
                                       ___________

        Introduced  by M. of A. MITAYNES, CARROLL, FORREST, GALLAGHER, GONZALEZ-
          ROJAS, KELLES, MAMDANI, SEPTIMO, SIMON, REYES, EPSTEIN, ROZIC, BURGOS,
          MEEKS, RAGA, ANDERSON, THIELE, SHRESTHA, LEVENBERG --  read  once  and
          referred  to  the Committee on Environmental Conservation -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- recommitted to  the  Committee  on  Environmental
          Conservation  in  accordance with Assembly Rule 3, sec. 2 -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          establishing  an  indirect  source  review for certain warehouse oper-
          ations

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The environmental conservation law is amended by adding a
     2  new section 19-0333 to read as follows:
     3  § 19-0333. Indirect source review for heavy distribution warehouses.
     4    1. As used in this section the following terms shall have the  follow-
     5  ing meanings:
     6    a.  "Affiliate"  means, with respect to any specified person, a person
     7  that  directly,  or  indirectly  through  one  or  more  intermediaries,
     8  controls, is controlled by, or is under common control with such person.
     9    b.  "Control",  including the terms "controlling", "controlled by" and
    10  "under common control with", means the possession, directly or indirect-
    11  ly, of the power to direct or cause the direction of (1) the  management
    12  and policies of a person, (2) the operation of a person, or (3) substan-
    13  tially  all  of the assets of a person, whether through the ownership of
    14  voting securities, by contract,  or  otherwise.
    15    c. "Heavy distribution warehouse" means a facility  that  falls  under
    16  one or more of the following categories:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04869-07-4
        A. 1718--B                          2

     1    (1)  Fulfillment  center.  A facility whose primary purpose is storage
     2  and distribution of goods to consumers or end-users, either directly  or
     3  through a parcel hub.
     4    (2) Parcel hub. A last mile facility or similar facility whose primary
     5  purpose  is  processing or redistribution of goods for delivery directly
     6  to consumers or end-users, by moving a shipment from one mode of  trans-
     7  port  to  a  vehicle  with  a  rated  capacity of less than ten thousand
     8  pounds.
     9    (3) Parcel sorting facility. A facility whose primary purpose is sort-
    10  ing or redistribution of goods from a fulfillment  center  to  a  parcel
    11  hub.
    12    d.  "Qualifying warehouse" means any heavy distribution warehouse that
    13  is  fifty  thousand  square  feet  or  greater,  whether  as  originally
    14  constructed or as modified, or which is owned or operated by any person,
    15  including for such purposes all affiliates of such person, who in aggre-
    16  gate owns or operates five hundred thousand or more square feet of heavy
    17  distribution warehouse space in the state.
    18    e. "Warehouse  modification" means a modification to a warehouse which
    19  adds  additional  warehouse  space, or a change in operations of a ware-
    20  house which is likely  to  result  in  a  significant  increase  in  air
    21  pollution.
    22    f.  "Warehouse  operator"  means  any  entity that conducts day-to-day
    23  operations at  a  heavy  distribution  warehouse,  including  operations
    24  conducted  through  the  use of third-party contractors. For purposes of
    25  clause (i) of subparagraph one of paragraph c of subdivision two of this
    26  section, warehouse operator shall include affiliates of  such  warehouse
    27  operator.
    28    2.  a.  No  later  than twelve months after the effective date of this
    29  section, the department shall adopt a program providing for the  facili-
    30  ty-by-facility  review of qualifying warehouses and adoption of measures
    31  to reduce air pollution associated with qualifying warehouse operations,
    32  including, in a manner not inconsistent with the regulation of  indirect
    33  sources  of  pollution  contemplated  by  42 U.S.C. § 7410(a)(5), mobile
    34  sources of pollution, and shall promulgate  any  appropriate  rules  and
    35  regulations in connection therewith.
    36    b.  (1) In adopting such program and promulgating such rules and regu-
    37  lations, the department shall consider a variety of  measures  including
    38  but not limited to requiring all warehouse operators to implement an air
    39  pollution  reduction  and  mitigation  plan developed or approved by the
    40  department; creating a points system  under  which  warehouse  operators
    41  must  gain  a  certain  number of points, based on the amount of traffic
    42  that results from their operations, through mitigation measures such  as
    43  acquiring  and  using  zero-emissions  vehicles,  installing  and  using
    44  on-site electric vehicle charging equipment, using alternatives to truck
    45  or van trips for incoming or outgoing  trips,  and/or  installing  solar
    46  electric  power  generation  and  battery storage systems; and requiring
    47  enhanced mitigation measures  for  qualifying  warehouses  located  near
    48  sensitive  receptors  including  but  not  limited to schools, daycares,
    49  playgrounds, parks, hospitals,  senior  centers  or  nursing  homes  and
    50  disadvantaged  communities  as  defined  in  subdivision five of section
    51  75-0101 of this chapter.
    52    (2) Such rules and regulations shall provide  that,  when  considering
    53  alternatives  to  truck or van trips for incoming or outgoing trips, the
    54  warehouse operator shall, no less than forty-five and no more than nine-
    55  ty days prior to implementation of  such  alternative,  inform  impacted
    56  employees,  in  writing,  of the proposed change. The warehouse operator
        A. 1718--B                          3

     1  shall maintain a record of having provided written  notice  to  impacted
     2  employees. The written notice shall include, at minimum: descriptions of
     3  the vehicles and equipment to be used; anticipated physical requirements
     4  of  operation of such vehicles and equipment; anticipated date of imple-
     5  mentation; and instructions for training and application for transfer to
     6  those positions.  In addition to the foregoing notice  requirements,  if
     7  employees  in  the warehouse have an exclusive bargaining unit represen-
     8  tative, the warehouse operator will certify that such representative has
     9  agreed in writing to any operational changes that impact  the  scope  of
    10  the  bargaining  unit  or bargained-for terms of a collective bargaining
    11  agreement then in place, prior to utilizing alternatives.
    12    c. (1) Under the program, the department shall  require  any  proposed
    13  new  development  of a qualifying warehouse, modification of an existing
    14  facility which would result in the facility  constituting  a  qualifying
    15  warehouse, or warehouse modification of a qualifying warehouse, to first
    16  obtain a permit demonstrating that any additional traffic resulting from
    17  construction and operation will not result in a violation of one or more
    18  national  ambient air quality standards established by the federal envi-
    19  ronmental protection agency or, if a violation already exists, will  not
    20  exacerbate such violation, as determined in a manner consistent with the
    21  state  implementation  plan.  In  addition, newly constructed qualifying
    22  warehouses shall be required to demonstrate that (i) the warehouse oper-
    23  ator has not been held by an administrative agency or court of competent
    24  jurisdiction to be in violation of any indirect source rule which is not
    25  inconsistent with  the  regulation  of  indirect  sources  of  pollution
    26  contemplated  by  42  U.S.C.  §  7410(a)(5),  including pursuant to this
    27  section, or any other federal, state  or  local  air  quality  standards
    28  related  to its logistics operations, in the two years prior to the date
    29  of application, and (ii) the proposed qualifying  warehouse  meets  LEED
    30  silver, gold or platinum standards.
    31    (2)  The  department  shall  require  applicants to submit information
    32  necessary to make such a determination pursuant to subparagraph  one  of
    33  this  paragraph,  including but not limited to, projected average number
    34  of daily vehicle trips and primary routes to the facility,  a  study  of
    35  potential  traffic  and congestion impacts, identification of all sensi-
    36  tive receptors, including but not limited to, schools,  daycares,  play-
    37  grounds, parks, hospitals, senior centers or nursing homes and disadvan-
    38  taged  communities  as  defined by section 75-0101 of this chapter, near
    39  the proposed warehouse or  near  the  primary  vehicle  routes,  and  an
    40  initial  air  pollution reduction and mitigation plan as provided for in
    41  paragraph b of this subdivision.
    42    d. Under the program the department shall establish ongoing monitoring
    43  and reporting requirements for warehouse  operators.    Such  monitoring
    44  shall  include  but not be limited to periodic desktop and field audits;
    45  contacting warehouse owners and warehouse operators to  request  further
    46  documentation  or  clarification  on  submitted  reports; and conducting
    47  field visits of the warehouse facilities  at  any  time  during  regular
    48  business hours to verify a facility is following recordkeeping and other
    49  applicable  requirements.    All reports shall be made accessible to the
    50  public, in full and unredacted except to the extent  necessary  to  keep
    51  personal  information  confidential,  and posted on a publicly available
    52  website. Reporting requirements shall include, but not  be  limited  to,
    53  annual reporting of:
    54    (1)  The average daily number of inbound and outbound vehicle trips by
    55  vehicle weight and class, and by time of day and day of the week;
        A. 1718--B                          4

     1    (2) The average daily vehicle miles traveled for all  vehicles  making
     2  inbound and outbound trips to and from the qualifying warehouse;
     3    (3) The average daily vehicle miles traveled and number of inbound and
     4  outbound trips for alternative modes of freight;
     5    (4) A heat map of the frequency data for trip destinations;
     6    (5)  The  number of jobs at the facility, including drivers and others
     7  employed by third-party contractors, with a breakdown of  percentage  of
     8  part-time  and  full-time  employees, independent contractors, unionized
     9  and non-union employees;
    10    (6) The percentage of vehicles used, specifying on-road  vehicles  and
    11  off-road  vehicles  as  well  as weight and vehicle class, that are zero
    12  emissions;
    13    (7) The number of electric vehicle  charging  stations  installed  and
    14  actual usage;
    15    (8)  The  number  of  hydrogen  fueling  stations installed and actual
    16  usage;
    17    (9)  The  number  of  on-site  renewable  energy  generation   systems
    18  installed;
    19    (10)  The  number  of  vehicles used to deliver from the site that are
    20  owned by the warehouse operator but leased to a  third  party,  and  the
    21  proportion  of leased vehicles used as compared to vehicles owned by the
    22  warehouse operator;
    23    (11) The identity of subcontractors who conduct more than ten  percent
    24  of  total  delivery  vehicle  trips  from the site, including the entity
    25  name, principal officers, business address and contact information,  and
    26  total number of employees; and
    27    (12)  Any  other  information  necessary  to effectively implement and
    28  enforce any rule or regulation promulgated pursuant to this section.
    29    3. The department shall impose an annual registration  fee  for  ware-
    30  house operators.
    31    4.  Within  twelve  months  of the effective date of this section, the
    32  department shall complete a study on the feasibility, benefits and costs
    33  of implementing low- and zero-emissions designated zones for medium- and
    34  heavy-duty vehicles as defined in regulations  promulgated  pursuant  to
    35  section  19-0306-b  of  this title within the state that are designed to
    36  lower air pollution, congestion, greenhouse gas  emissions,  and  noise,
    37  and  to  increase  safety.  The  study shall include recommendations for
    38  implementation of low- and zero-emissions zones at the state  and  local
    39  level and shall be made available to the public and posted on a publicly
    40  available website. In conducting the study, the department shall consid-
    41  er:
    42    a. Creation of zones restricting deliveries to zero-emissions delivery
    43  vehicles only;
    44    b.  Creation  of  zones  requiring  delivery  vehicles to meet certain
    45  stringent air pollution standards;
    46    c. Creation of zones requiring a  fee  for  entry  for  diesel-powered
    47  medium- and heavy-duty vehicles;
    48    d.  Prioritization  of  low- and zero-emissions zones within disadvan-
    49  taged communities identified under article seventy-five of this chapter;
    50  nonattainment zones under the national ambient air quality standards set
    51  by the federal environmental protection agency in 42  U.S.C.  7401;  and
    52  other  vulnerable  areas including areas proximate to schools, daycares,
    53  playgrounds, parks, hospitals, senior  centers  or  nursing  homes,  and
    54  disadvantaged communities as defined by section 75-0101 of this chapter;
    55    e.  Incentives  and  enforceable  measures for low- and zero-emissions
    56  zones, including fees;
        A. 1718--B                          5

     1    f. Measures to ensure reinvestment of any revenues from fees in public
     2  transit and zero-emissions transportation infrastructure;
     3    g.  Equity  considerations, including preventing unintended regressive
     4  cost impacts for low- and moderate-income New Yorkers; and
     5    h. Barriers to implementing low- and zero-emissions zones in the state
     6  and recommendations for overcoming such barriers.
     7    5. a. The provisions of  subdivisions  one,  two  and  three  of  this
     8  section  shall  not  apply in a city with a population of one million or
     9  more which, in consultation with and subject to the review and  approval
    10  of  the  department  after a public hearing in compliance with the state
    11  administrative procedure act, has established a program  by  adopting  a
    12  local law or ordinance to regulate indirect source pollution from quali-
    13  fying  warehouses  in  a  manner not inconsistent with the regulation of
    14  indirect source  pollution  contemplated  by  42  U.S.C.  §  7410(a)(5);
    15  provided,  however, any such municipal indirect source pollution program
    16  shall be, in the determination of the department, at least as  stringent
    17  as the program established under subdivisions one, two and three of this
    18  section and all rules and regulations promulgated pursuant thereto.
    19    b.  The  department  shall  require  any city establishing an indirect
    20  source pollution program in accordance with this subdivision to  require
    21  the  program to implement all data collection and reporting requirements
    22  contemplated by subdivision two of this section and submit all such data
    23  and reporting information to the  department  no  less  frequently  than
    24  every twelve months for review by the department.
    25    c.  The  department  shall  conduct  an  annual review of any indirect
    26  source pollution program established pursuant to this subdivision.  Such
    27  reviews shall evaluate  whether,  among  other  relevant  matters,  such
    28  program continues to be at least as stringent as the program established
    29  under subdivisions one, two and three of this section.
    30    d.  In  the event that the department determines that a program estab-
    31  lished pursuant to  this  subdivision  is  not  meeting  any  applicable
    32  requirements  under  this  subdivision, the department shall immediately
    33  notify such city of the deficiencies and if, in the determination of the
    34  department, the city does not take satisfactory corrective  action,  the
    35  department  may take any corrective action it deems appropriate, includ-
    36  ing but not limited to suspending or terminating  the  approval  contem-
    37  plated  by  paragraph a of this subdivision and enforcing the provisions
    38  of this section in such city; provided,  however,  any  indirect  source
    39  pollution  law  in  effect  in  a city of one million or  more as of the
    40  effective date of this section may not be found to be  failing  to  meet
    41  such  applicable  requirements  for  the  one-year  period following the
    42  effective date of this section.
    43    e. The exemption contemplated by this subdivision shall be limited  to
    44  the  regulation  of indirect source pollution from qualifying warehouses
    45  and may not be construed as an exemption from compliance with any  other
    46  law, rule, regulation, decision or order.
    47    § 2. This act shall take effect immediately.