S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8877
 
                             I N  S E N A T E
 
                              August 5, 2020
                                ___________
 
 Introduced  by  Sen.  MAY  --  read  twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the highway law, in relation to  enacting  the  "schools
   impacted by gross highways (SIGH) act"; and to amend the environmental
   conservation law, in relation to including certain schools in environ-
   mental impact statements for the construction of a major roadway

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited  as  the  "schools
 impacted by gross highways (SIGH) act".
   §  2.  Legislative findings and intent.  The purpose of this act is to
 address the disproportionate impact of environmental  hazards  on  Black
 and Brown communities, specifically to protect children and young adults
 from  the  health risks associated with long-term exposure to pollutants
 which derive from living and attending  school  in  close  proximity  to
 major  roadways and highway projects. Traffic is one of the most signif-
 icant sources of air pollution in both the  indoor  and  outdoor  school
 environment.
   Pollutants  directly  emitted from cars, trucks, and other motor vehi-
 cles are found in higher concentrations near major roads, with the high-
 est levels within the first five hundred (500)  feet  of  a  roadway  --
 children  who attend schools near roadways have increased risks of expo-
 sure and the detrimental health impacts therefrom. Children who  experi-
 ence  consistent exposure to air pollution have increased risks of asth-
 ma, chronic respiratory issues, reduced  lung  function,  cardiovascular
 effects, and neurobehavioral dysfunction. These effects are long-lasting
 and contribute to changes in overall school performance for students.
   In addition to the health effects caused by air pollution, major road-
 ways  create  a  considerable  amount  of  noise pollution. Children are
 particularly susceptible to the effects of loud, constant  noise,  which
 comes  from  close proximity to highways. This often causes trouble with
 tasks at school -- reading attention,  problem-solving  and  memory  are
 most affected.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14577-04-0

 S. 8877                             2
 
   Research  led  by  the  University  of Minnesota and the University of
 Washington quantified  the  racial  gap  between  those  who  cause  air
 pollution  and  those  who  breathe  it. Poor air quality is the largest
 environmental health risk in the United States. Fine particulate  matter
 (PM),  especially  that  which  is  emitted from vehicles, is especially
 harmful and is  responsible  for  more  than  100,000  deaths  annually.
 However,  not  everyone  is equally exposed to poor air quality, nor are
 all people equally responsible for causing it.
   Researchers found that fine PM pollution is disproportionately  caused
 by  the  non-Hispanic  white majority, but disproportionately inhaled by
 Black and Hispanic minorities. A 2019 Report  commissioned  by  the  New
 York Civil Liberties Union found 53.1% of Black and Latinx children live
 within  500  feet  of  a  major  roadway. Comparatively just 4% of white
 students live within 250 feet from major roadways.
   Black and Latinx children are already at risk for high morbidity rates
 and exposed to urban poverty; this combination of risks has catastrophic
 effects  for  their  academic  functioning.  Schools  that  have  larger
 percentages  of low income students and students of color are exposed to
 more respiratory hazards from air toxins. Pastor et al. (2006) conducted
 a study on schools, air pollution, and environmental justice. The  study
 showed  Black zip codes are less healthy places for all children because
 they tend to be close to sources of pollution  such  as  busy  highways;
 resulting in poorer air quality.
   Decades  of  racial segregation, redlining, and the systemic placement
 of pollution-emitting infrastructure in Black and Brown communities have
 played a role in this disparity. The American Lung Association says that
 one of the major reasons that respiratory illnesses are so prevalent  in
 communities  of color is the proximity of those communities to producers
 of hazardous air pollutants, such as major roadways.
   § 3. The highway law is amended by adding a new section 67 to read  as
 follows:
   §  67. PROHIBITED CONSTRUCTION OF SCHOOLS WITHIN SIX HUNDRED FEET OF A
 MAJOR ROADWAY. 1. FOR PURPOSES OF  THIS  SECTION,  THE  FOLLOWING  TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "ASTHMA MEDICATION" SHALL MEAN ANY TYPE OF DAILY ASTHMA TREATMENT
 MEDICATIONS, INCLUDING BUT NOT LIMITED TO INHALERS AND NEBULIZERS;
   (B) "BEST AVAILABLE CONTROL TECHNOLOGIES" (BACT) SHALL MEAN ANY  TECH-
 NOLOGY  REASONABLY  AVAILABLE  TO THE ENTITY OVERSEEING DEVELOPMENT OF A
 SOURCE OF POLLUTION THAT CAN BE EMPLOYED IN ORDER TO MINIMIZE THE AMOUNT
 OF THE POLLUTANTS THAT ARE PRODUCED. SUCH TECHNOLOGY MAY BE EMPLOYED  IN
 THE  FORM  OF EQUIPMENT OR MAY BE EMPLOYED AS AN ALTERATION TO THE PROC-
 ESSES OF DEVELOPMENT;
   (C) "ENTITY" SHALL MEAN ANY COMPANY, ORGANIZATION,  OR  AGENCY  INTER-
 ESTED IN THE CONSTRUCTION OF A SCHOOL WITHIN SIX HUNDRED FEET OF A MAJOR
 HIGHWAY;  OR  ANY  COMPANY,  ORGANIZATION,  OR  AGENCY INTERESTED IN THE
 CONSTRUCTION OF A MAJOR ROADWAY WITHIN SIX  HUNDRED  FEET  OF  A  SCHOOL
 ENROLLING STUDENTS IN GRADES PRE-KINDERGARTEN THROUGH TWELFTH GRADE;
   (D)  "ENVIRONMENTAL JUSTICE" SHALL MEAN THE MITIGATION OF IDENTIFIABLE
 ENVIRONMENTAL HAZARDS THAT HAVE A DISPROPORTIONATE IMPACT ON  A  PARTIC-
 ULAR COMMUNITY, DEFINED ON THE BASIS OF RACE, INCOME, NATIONAL ORIGIN OR
 COLOR,  SUCH  THAT  ALL  PEOPLE  AND COMMUNITIES ARE ABLE TO ENJOY EQUAL
 PROTECTION FROM ENVIRONMENTAL HAZARDS AND EQUAL ENFORCEMENT OF  ENVIRON-
 MENTAL LAWS AND REGULATIONS;
   (E) "ENVIRONMENTAL JUSTICE COMMUNITY" SHALL MEAN A COMMUNITY, TYPICAL-
 LY  CONSISTING OF MEMBERS OF MARGINALIZED RACIAL OR ETHNIC GROUPS AND/OR
 LOW INCOME HOUSEHOLDS,  THAT  MAY  BEAR  OR  HAS  HISTORICALLY  BORNE  A

 S. 8877                             3
 
 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;
   (F)  "MAJOR ROADWAY" SHALL MEAN A PRIMARY ROADWAY OF THE STATE HIGHWAY
 SYSTEM OR STATE THRUWAY SYSTEM THAT  PROVIDES  LIMITED  ACCESS  TO  SUCH
 ROADWAY  AND  HAS  A  TRAFFIC VOLUME ALONG SUCH ROADWAY OF NOT LESS THAN
 THIRTY THOUSAND MOTOR VEHICLES PER DAY;
   (G) "NEAR A MAJOR ROADWAY" SHALL BE CONSIDERED  AS  ANY  PART  OF  THE
 SCHOOL  FACILITY WHICH IS LOCATED FIVE HUNDRED FEET OR LESS FROM A MAJOR
 ROADWAY;
   (H) "POLLUTANT" OR "POLLUTANTS" SHALL  REFER  TO  THE  SIX  POLLUTANTS
 REGULATED  BY  THE  CLEAN  AIR  ACT,  42  U.S.C. SECTION 7401, INCLUDING
 GROUND-LEVEL OZONE, PARTICULATE MATTER, CARBON  MONOXIDE,  LEAD,  SULFUR
 DIOXIDE, AND NITROGEN OXIDE, AS WELL AS OTHER POLLUTANTS CAUSED BY MAJOR
 ROADWAYS INCLUDING BUT NOT LIMITED TO, PARTICULATE MATTER, CARBON MONOX-
 IDE, OXIDES OF NITROGEN, AND BENZENE EMITTED INTO THE AIR;
   (I)  "SCHOOL CONSTRUCTION PROJECT" SHALL MEAN THE ACQUISITION OF LAND,
 RENOVATION OF AN EXISTING STRUCTURE OR  STRUCTURES  OR  CONSTRUCTION  OF
 FACILITIES TO DEVELOP AND CONSTRUCT A SCHOOL BUILDING OR BUILDINGS;
   (J)  "SCHOOL  FACILITY"  SHALL  REFER  TO  BUILDINGS, GROUNDS, PLAYING
 FIELDS, AND PARKING LOTS USED  IN  THE  FACILITATION  OF  EDUCATION  FOR
 SCHOOL AGED CHILDREN IN PRE-KINDERGARTEN THROUGH TWELFTH GRADE; AND
   (K)  "SCHOOL HEALTH OFFICE" SHALL REFER TO HEALTH SERVICES PROVIDED IN
 ANY SCHOOL BUILDING SERVING STUDENTS IN PRE-KINDERGARTEN THROUGH TWELFTH
 GRADE, INCLUDING BUT NOT LIMITED TO NURSES, MENTAL  HEALTH  SPECIALISTS,
 AND BEHAVIORAL SPECIALISTS.
   2.  ON  AND  AFTER THE EFFECTIVE DATE OF THIS SECTION, THE DEVELOPMENT
 AND CONSTRUCTION OF ANY NEW SCHOOL CONSTRUCTION PROJECT WHERE ANY OF THE
 LANDS OR GROUNDS OF SUCH PROJECT LIE WITHIN A DISTANCE  OF  SIX  HUNDRED
 FEET OF A MAJOR ROADWAY IS PROHIBITED.
   3. (A) THE DEPARTMENT SHALL, WHEN PLANNING THE CONSTRUCTION OF A MAJOR
 ROADWAY  AND  CONSIDERING  THE  LOCATION FOR SUCH ROADWAY, IDENTIFY EACH
 SCHOOL LYING WITHIN THE GENERAL CORRIDOR IN WHICH SUCH ROADWAY SHALL  BE
 LOCATED AND SHALL, TO THE GREATEST EXTENT PRACTICABLE, SITE SUCH HIGHWAY
 AT A DISTANCE OF SIX HUNDRED FEET OR MORE FROM EACH SUCH SCHOOL.
   (B)  IF  THERE  IS NO AVAILABLE ALTERNATIVE FOR DEVELOPMENT OF A MAJOR
 ROADWAY, SUCH THAT THE ROADWAY OR A PORTION  THEREOF  SHALL  BE  LOCATED
 WITHIN  SIX  HUNDRED  FEET  OF  AN  EXISTING  SCHOOL  FACILITY OR SCHOOL
 CONSTRUCTION PROJECT, AN ENVIRONMENTAL IMPACT  STATEMENT(EIS)  SHALL  BE
 CREATED TO FULLY ANALYZE THE CURRENT AND HISTORICAL ENVIRONMENTAL IMPACT
 OF  THE ROADWAY ON THE EXISTING SCHOOL FACILITIES OR SCHOOL CONSTRUCTION
 PROJECTS, INCLUDING AN ANALYSIS  OF  THE  ENVIRONMENTAL  JUSTICE  IMPLI-
 CATIONS  AND  IDENTIFICATION  OF  ANY  IMPLICATED  ENVIRONMENTAL JUSTICE
 COMMUNITIES.  AN EIS SHALL INCLUDE:
   (I) AN EXPLANATION ON THE SOCIETAL,  HEALTH,  ECONOMIC,  AND  ENVIRON-
 MENTAL  EFFECTS  THAT THE PUPILS AND WORKERS OF THE SCHOOL FACILITY WILL
 EXPERIENCE, INCLUDING AN ANALYSIS OF HISTORICAL IMPACTS;
   (II) A STATEMENT INDICATING THAT EVERY AVAILABLE ALTERNATIVE TO BUILD-
 ING THE MAJOR ROADWAY AT LEAST SIX HUNDRED FEET FROM THE EXISTING SCHOOL
 FACILITIES OR SCHOOL CONSTRUCTION PROJECTS WAS CONSIDERED; AND
   (III) BACTS INTENDED TO BE USED DURING THE DEVELOPMENT OF  SUCH  MAJOR
 ROADWAY.
   § 4. Paragraphs (i), (i) and (j) of subdivision 2 of section 8-0109 of
 the  environmental  conservation  law, paragraph (i) as added by chapter
 182 of the laws of 1990, paragraph (i) as amended by chapter 238 of  the

 S. 8877                             4
 
 laws of 1991, and paragraph (j) as amended by chapter 219 of the laws of
 1990, are amended and a new paragraph (k) is added to read as follows:
   (i)  effects of proposed action on solid waste management where appli-
 cable and significant; [and]
   [(i)] (J) effects of any proposed action on, and its consistency with,
 the comprehensive management plan of the special groundwater  protection
 area  program,  as  implemented  by the commissioner pursuant to article
 fifty-five of this chapter; [and]
   (K) WITH RESPECT TO THE CONSTRUCTION OF A MAJOR ROADWAY, AS SUCH  TERM
 IS DEFINED IN PARAGRAPH (F) OF SUBDIVISION ONE OF SECTION SIXTY-SEVEN OF
 THE  HIGHWAY  LAW,  IDENTIFY  AND  SET  FORTH IN THE NAME OF EACH SCHOOL
 LOCATED WITHIN SIX HUNDRED FEET OF THE PROPOSED CORRIDOR IN  WHICH  SUCH
 ROADWAY IS PROPOSED TO BE LOCATED; AND
   [(j)]  (L) such other information consistent with the purposes of this
 article as may be prescribed in guidelines issued  by  the  commissioner
 pursuant to section 8-0113 of this chapter.
   §  5. 1. Within 90 days of the effective date of this section, the New
 York State Department of Transportation or designee shall begin a state-
 wide census of public school  facilities  currently  enrolling  students
 that  are within 600 feet of a major roadway. The New York State Depart-
 ment of Transportation shall make this data public, along  with  a  plan
 for mitigating the impacts of roadway air pollution on each school.
   2.  On  or  after  the  effective date of this section, where a school
 facility already exists within 600 feet of a major roadway, or an entity
 seeks to build a major roadway within 600 feet of  an  existing  school,
 The  New  York  State  Department  of Transportation shall implement the
 following mitigation measures in consultation with the  school  district
 or designee of the impacted school:
   (a)  The  installation of a Heating, Ventilation, and Air Conditioning
 (HVAC) system to improve  air  quality  within  the  school  facilities.
 Maintenance  of  the HVAC system shall be provided by the New York State
 Department of Transportation or designee and upgrades to the system  may
 qualify  as  BACT. Maintenance shall be reported annually, in compliance
 with subdivision 5 of this section;
   (b) The installation of insulation within  school  facility  walls  to
 mitigate  noise  pollution.  Such  installation  shall take place during
 periods of time when students will not be occupying the school's facili-
 ties; and may
   (c) Make a reasonable investment in  pollutant  absorbing  plants  for
 both the inside and outside of the school facilities in order to improve
 air  quality,  including  but  not  limited to trees, plants of the palm
 species, and ferns;
   (d) Construct indoor playground options that cater  to  children  with
 severe asthma; or
   (e)  Capping  of  all soil owned by the school within 200 yards of the
 school's facilities.
   3. The New York State Department of Transportation shall hold a 45-day
 period for public comments and suggestions, during which the entity  may
 receive  other  suggestions  for  mitigation from the public, even if an
 environmental assessment leads to a finding of  no  significant  impact.
 Each  of  these  suggestions  shall  be  considered and analyzed. If the
 suggestions are reasonable, they should be considered. Suggestions shall
 be reasonable if they offer low-cost mitigation  measures,  or  measures
 cost equivalent to other mitigation strategies considered by the depart-
 ment of transportation and will not cause further harm.

 S. 8877                             5
 
   4.  The  entities overseeing the project development shall employ Best
 Available  Control  Technologies  (BACT)  to  minimize  the  amount   of
 pollution   produced  during  construction.  BACTs  shall  be  used  for
 construction equipment and construction processes unless the  BACT  will
 redefine  the source of the new development, it will not be required per
 this section.  If investment in BACT equipment and processes will change
 the aim or purpose of the facility, investment in  such  BACT  equipment
 and  processes will not be mandated. If BACTs have been suggested by the
 community during the 45-day comment period that  appear  reasonable  but
 are  not selected by the developing entity to be implemented, justifica-
 tion as to why the measure was  not  taken  shall  be  provided  to  the
 department of transportation.
   5.  (a) For a school located near a major roadway, data shall be annu-
 ally collected on roadway pollutants by the school  nurse  and  adminis-
 tration and publish such data on the school's website.
   (b) The compiled data shall include:
   (i)  the  number  of  students during that school year who self-report
 respiratory issues and/or asthma; and
   (ii) identify which 2 mitigation measures from subdivision 3  of  this
 section  the  school  has decided to implement, including a timeline for
 implementation of such mitigation measures.
   (c) After the first year of implementation, the data collection  shall
 include  updates on maintenance and quality assurance for the mitigation
 measures, including but not  limited  to  whether  the  school  facility
 currently has a ventilation system, and if so, the data collection shall
 also include:
   (i) the name and model of ventilation system;
   (ii) the date of installation;
   (iii) the date of the last maintenance check; and
   (iv)  the  dates  of any upcoming maintenance checks or updates to the
 system.
   (d) Previous year data  collections  shall  remain  available  to  the
 public on the school's website.
   §  6.  This  act shall take effect on the thirtieth day after it shall
 have become a law.