Bill Text: NY S01317 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to minimizing disproportionate impacts of environmental facility siting on disadvantaged communities.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2023-02-15 - SUBSTITUTED BY A1286 [S01317 Detail]

Download: New_York-2023-S01317-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          1317

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 11, 2023
                                       ___________

        Introduced  by  Sen.  STEWART-COUSINS -- read twice and ordered printed,
          and when printed to be committed to the Committee on Rules

        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
        S. 1317                             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
        S. 1317                             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
        S. 1317                             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
        S. 1317                             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.