[ ] is old law to be omitted.
LBD03773-02-1
S. 922--A 2
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.
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.
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 332 to read as
follows:
§ 332. 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) "BEST AVAILABLE CONTROL TECHNOLOGIES" (BACT) SHALL HAVE THE SAME
MEANING AS DEFINED BY 6 NYCRR 200.1, AND WHERE APPLICABLE SHALL INCLUDE
WITHOUT LIMITATION THE INSTALLATION OF A HEATING, VENTILATION, AND AIR
CONDITIONING (HVAC) SYSTEM TO IMPROVE AIR QUALITY WITHIN THE SCHOOL
BUILDINGS, THE INSTALLATION OF INSULATION WITHIN THE SCHOOL FACILITY
WALLS TO MITIGATE NOISE POLLUTION, POLLUTANT ABSORBING PLANTS, INDOOR
PLAYGROUND OPTIONS THAT CATER TO CHILDREN WITH SEVERE ASTHMA, AND
CAPPING OF ALL SOIL OWNED BY A SCHOOL WITHIN SIX HUNDRED FEET OF SCHOOL
FACILITIES;
(B) "ENVIRONMENTAL JUSTICE COMMUNITY" SHALL HAVE THE SAME MEANING AS
DEFINED BY SUBDIVISION NINE OF SECTION 8-0105 OF THE ENVIRONMENTAL
CONSERVATION LAW;
(C) "MAJOR ROADWAY" SHALL MEAN A CONTROLLED ACCESS PRIMARY ROADWAY OF
THE STATE HIGHWAY SYSTEM OR STATE THRUWAY SYSTEM THAT HAS A TRAFFIC
VOLUME ALONG SUCH ROADWAY OF NOT LESS THAN THIRTY THOUSAND MOTOR VEHI-
CLES PER DAY;
S. 922--A 3
(D) "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;
(E) "SCHOOL CONSTRUCTION PROJECT" SHALL MEAN THE ACQUISITION OF LAND,
EXPANSION OF AN EXISTING STRUCTURE OR STRUCTURES OR CONSTRUCTION OF
FACILITIES TO DEVELOP AND CONSTRUCT A SCHOOL BUILDING OR BUILDINGS;
(F) "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
(G) "AIR QUALITY INDEX" SHALL REFER TO THE AIR QUALITY CLASSIFICATIONS
AND STANDARDS ESTABLISHED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION IN 6 NYCRR PARTS 256 AND 257.
2. (A) BEGINNING FIVE YEARS AFTER THE EFFECTIVE DATE OF THIS SECTION,
THE DEVELOPMENT AND CONSTRUCTION OF ANY NEW SCHOOL CONSTRUCTION PROJECT
OR SCHOOL FACILITY WHERE ANY OF THE LANDS OR GROUNDS OF SUCH PROJECT ARE
WITHIN SIX HUNDRED FEET OF A MAJOR ROADWAY SHALL BE PROHIBITED UNLESS
THE DEPARTMENT, AND AGENCY PREPARING THE ENVIRONMENTAL IMPACT STATEMENT
IN ACCORDANCE WITH ARTICLE EIGHT OF THE ENVIRONMENTAL CONSERVATION LAW,
HAVE BOTH DETERMINED THAT:
(I) THE POLLUTANTS OR POLLUTION SOURCES AROUND SUCH PROJECT DO NOT AND
WILL NOT CONSTITUTE AN ACTUAL OR POTENTIAL ENDANGERMENT OF PUBLIC HEALTH
TO PERSONS WHO WOULD ATTEND OR BE EMPLOYED AT THE SCHOOL OR SCHOOL
FACILITIES;
(II) THE POLLUTANTS OR POLLUTION SOURCES AROUND SUCH PROJECT WILL NOT
NEGATIVELY IMPACT THE AIR QUALITY INDEX IN AND AROUND SCHOOL FACILITIES
RELATIVE TO BASELINE INDEX LEVELS MEASURED BEFORE COMMENCEMENT OF
CONSTRUCTION AS MEASURED IN THE EXISTING BURDEN REPORT DEFINED IN
SECTION 8-0105 OF THE ENVIRONMENTAL CONSERVATION LAW; AND
(III) NEITHER SHORT-TERM OR LONG-TERM EXPOSURE TO THE LEVELS OF POLLU-
TANTS OR POLLUTION SOURCES AROUND SUCH PROJECT POSES SIGNIFICANT HEALTH
RISKS TO STUDENTS.
(B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (A) OF THIS SUBDIVI-
SION, IF THE GOVERNING BODY FOR THE SCHOOL OR SCHOOL FACILITY FINDS THAT
NEITHER SUBPARAGRAPHS (II) OR (III) OF PARAGRAPH (A) OF THIS SUBDIVISION
CAN BE MET, AND THE GOVERNING BODY IS UNABLE TO LOCATE AN ALTERNATIVE
SITE DUE TO A SEVERE SHORTAGE OF SITES THAT OTHERWISE MEET THE REQUIRE-
MENTS OF THIS SECTION, PROVIDED THAT AN ALTERNATIVE SITE ANALYSIS DETER-
MINING THE LACK OF ALTERNATIVE SITES SHALL BE MADE AVAILABLE TO THE
PUBLIC NO LESS THAN SIXTY DAYS PRIOR TO SUCH DETERMINATION.
3. (A) THE DEPARTMENT SHALL, WHEN PLANNING THE CONSTRUCTION OF A MAJOR
ROADWAY AND CONSIDERING THE LOCATION FOR SUCH ROADWAY OR REVIEWING ANY
MAJOR ROADWAY PROJECT OVER WHICH THE DEPARTMENT OF TRANSPORTATION HAS
OVERSIGHT, IDENTIFY EACH SCHOOL FACILITY LOCATED WITHIN SIX HUNDRED FEET
OF THE PLANNED ROADWAY AND SHALL, TO THE GREATEST EXTENT PRACTICABLE,
SITE SUCH ROADWAY NO LESS THAN SIX HUNDRED FEET FROM EACH SUCH SCHOOL
FACILITY.
(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, THE DEPARTMENT SHALL, IN CONSULTATION WITH THE
AFFECTED SCHOOL DISTRICT OR DISTRICTS, INCORPORATE BEST AVAILABLE
CONTROL TECHNOLOGIES INTO ITS DEVELOPMENT AND CONSTRUCTION PLANS TO
ENSURE THAT THE AIR QUALITY INDEX IN AND AROUND SCHOOL FACILITIES IS
S. 922--A 4
LOWER DURING AND AFTER CONSTRUCTION AND FOR NO FEWER THAN THREE YEARS
AFTER PROJECT COMPLETION THAN BASELINE INDEX LEVELS BEFORE COMMENCEMENT
OF CONSTRUCTION AS MEASURED IN THE EXISTING BURDEN REPORT DEFINED IN
SECTION 8-0105 OF THE ENVIRONMENTAL CONSERVATION LAW. NOTHING IN THIS
SECTION SHALL BE CONSTRUED TO REQUIRE THE AFFECTED SCHOOL DISTRICT OR
DISTRICTS TO EXPEND MONIES ON SUCH BEST AVAILABLE CONTROL TECHNOLOGIES
THAT EXCEED THE AMOUNT OF STATE AND FEDERAL FUNDING AVAILABLE FOR THE
MAJOR ROADWAY PROJECT.
§ 4. Section 8-0105 of the environmental conservation law is amended
by adding five new subdivisions 9, 10, 11, 12, and 13 to read as
follows:
9. "ENVIRONMENTAL JUSTICE COMMUNITY" MEANS AN ECONOMICALLY DISTRESSED
OR MINORITY COMMUNITY BEARING A DISPROPORTIONATE OR INEQUITABLE
POLLUTION BURDEN AND SHALL INCLUDE, BUT NOT BE LIMITED TO, ENVIRONMENTAL
JUSTICE AREAS IDENTIFIED BY THE DEPARTMENT.
10. "ECONOMICALLY DISTRESSED AREA" SHALL MEAN AN AREA CHARACTERIZED BY
A POVERTY RATE OF AT LEAST TWENTY PERCENT; OR AN UNEMPLOYMENT RATE OF AT
LEAST ONE HUNDRED TWENTY-FIVE PERCENT OF THE STATEWIDE UNEMPLOYMENT
RATE.
11. "MINORITY COMMUNITY" SHALL MEAN ANY CENSUS TRACT, CENSUS BLOCK, OR
CENSUS BLOCK GROUP THAT INCLUDES TWENTY-FIVE PERCENT OR MORE OF ANY
ETHNIC GROUP.
12. "ETHNIC GROUP" SHALL MEAN A GROUP IDENTIFIED IN PARAGRAPH (A),
(B), (C), OR (D) OF SUBDIVISION EIGHT OF SECTION THREE HUNDRED TEN OF
THE EXECUTIVE LAW.
13. "EXISTING BURDEN REPORT" SHALL MEAN THE REPORT REQUIRED BY SUBDI-
VISION FOUR OF SECTION 8-0109 OF THIS ARTICLE DESCRIBING THE EXISTING
POLLUTION BURDEN IN AN ENVIRONMENTAL JUSTICE COMMUNITY.
§ 5. 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
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) EFFECTS OF THE CONSTRUCTION OF A MAJOR ROADWAY, AS SUCH TERM IS
DEFINED IN SECTION THREE HUNDRED THIRTY-TWO OF THE HIGHWAY LAW, IDENTIFY
AND SET FORTH THE NAME OF EACH SCHOOL LOCATED WITHIN SIX HUNDRED FEET OF
THE BOUNDS OF THE PROPOSED ACTION, AND CONSIDER WHETHER THE ACTION MAY
CAUSE OR CONTRIBUTE TO, EITHER DIRECTLY OR INDIRECTLY, A DISPROPOR-
TIONATE OR INEQUITABLE OR BOTH DISPROPORTIONATE AND INEQUITABLE
POLLUTION BURDEN ON AN ENVIRONMENTAL JUSTICE COMMUNITY; 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.
§ 6. The opening paragraph of subdivision 4 of section 8-0109 of the
environmental conservation law, as amended by chapter 219 of the laws of
1990, is amended to read as follows:
As early as possible in the formulation of a proposal for an action,
the responsible agency shall make an initial determination AS TO whether
OR NOT an environmental impact statement need be prepared for the
action. IN MAKING SUCH DETERMINATION FOR ANY PROPOSED CONSTRUCTION OF A
S. 922--A 5
MAJOR ROADWAY ACTION, AS DEFINED IN SECTION THREE HUNDRED THIRTY-TWO OF
THE HIGHWAY LAW, THAT IS NOT A MINOR PROJECT AND THAT MAY DIRECTLY OR
INDIRECTLY AFFECT AN ENVIRONMENTAL JUSTICE COMMUNITY SCHOOL FACILITY,
THE RESPONSIBLE AGENCY SHALL PREPARE OR CAUSE TO BE PREPARED AN EXISTING
BURDEN REPORT AND SHALL CONSIDER SUCH REPORT IN DETERMINING WHETHER SUCH
ACTION MAY CAUSE OR CONTRIBUTE TO, EITHER DIRECTLY OR INDIRECTLY, A
DISPROPORTIONATE OR INEQUITABLE, OR BOTH DISPROPORTIONATE AND INEQUITA-
BLE POLLUTION BURDEN ON AN ENVIRONMENTAL JUSTICE COMMUNITY SCHOOL FACIL-
ITY. THE EXISTING BURDEN REPORT SHALL INCLUDE BASELINE MONITORING DATA
COLLECTED IN THE AFFECTED ENVIRONMENTAL JUSTICE COMMUNITY WITHIN TWO
YEARS OF THE APPLICATION FOR A PERMIT OR APPROVAL; SHALL IDENTIFY EACH
EXISTING POLLUTION SOURCE OR CATEGORIES OF SOURCES AFFECTING THE COMMU-
NITY AND THE POTENTIAL ROUTES OF HUMAN EXPOSURE TO POLLUTION FROM SUCH
SOURCE OR CATEGORIES OF SOURCES; THE POTENTIAL OR DOCUMENTED CUMULATIVE
HUMAN HEALTH EFFECTS OF SUCH POLLUTION; AND THE POTENTIAL OR PROJECTED
CONTRIBUTION OF THE PROPOSED ACTION TO EXISTING POLLUTION BURDENS IN THE
COMMUNITY AND POTENTIAL HEALTH EFFECTS OF SUCH CONTRIBUTION, TAKING INTO
ACCOUNT EXISTING POLLUTION BURDENS. When an action is to be carried out
or approved by two or more agencies, such determination shall be made as
early as possible after the designation of the lead agency.
§ 7. Subdivision 8 of section 8-0109 of the environmental conservation
law, as amended by chapter 252 of the laws of 1977, is amended to read
as follows:
8. When an agency decides to carry out or approve an action which has
been the subject of an environmental impact statement, it shall make an
explicit finding that the requirements of this section have been met and
that consistent with social, economic and other essential consider-
ations, to the maximum extent practicable, adverse environmental effects
revealed in the environmental impact statement process will be minimized
or avoided. NO ACTION RELATED TO CONSTRUCTION OF A SCHOOL FACILITY, AS
DEFINED IN SECTION THREE HUNDRED THIRTY-TWO OF THE HIGHWAY LAW, SHALL BE
CARRIED OUT OR APPROVED IF IT MAY CAUSE OR CONTRIBUTE TO, EITHER DIRECT-
LY OR INDIRECTLY, A DISPROPORTIONATE OR INEQUITABLE, OR BOTH DISPROPOR-
TIONATE AND INEQUITABLE POLLUTION BURDEN ON A SCHOOL FACILITY LOCATED IN
AN ENVIRONMENTAL JUSTICE COMMUNITY.
§ 8. Subparagraph (i) of paragraph (c) of subdivision 2 of section
8-0113 of the environmental conservation law, as added by chapter 612 of
the laws of 1975, is amended to read as follows:
(i) Actions or classes of actions that are likely to require prepara-
tion of environmental impact statements, INCLUDING ACTIONS WHICH MAY
CAUSE OR CONTRIBUTE TO, EITHER DIRECTLY OR INDIRECTLY, A DISPROPOR-
TIONATE OR INEQUITABLE OR BOTH DISPROPORTIONATE AND INEQUITABLE
POLLUTION BURDEN ON A SCHOOL FACILITY IN AN ENVIRONMENTAL JUSTICE COMMU-
NITY;
§ 9. Subdivision 2 of section 8-0113 of the environmental conservation
law is amended by adding a new paragraph (m) to read as follows:
(M) THE FORM AND CONTENT OF AN EXISTING BURDEN REPORT WHICH SHALL, AT
THE MINIMUM, INCLUDE BASELINE MONITORING DATA COLLECTED IN THE AFFECTED
ENVIRONMENTAL JUSTICE COMMUNITY SCHOOL FACILITY WITHIN TWO YEARS OF THE
APPLICATION FOR A PERMIT OR APPROVAL AND SHALL IDENTIFY: (I) EACH EXIST-
ING POLLUTION SOURCE OR CATEGORIES OF SOURCES AFFECTING THE SCHOOL
FACILITY IN AN ENVIRONMENTAL JUSTICE COMMUNITY AND THE POTENTIAL ROUTES
OF HUMAN EXPOSURE TO POLLUTION FROM THAT SOURCE OR CATEGORIES OF SOURC-
ES; (II) AMBIENT CONCENTRATION OF REGULATED AIR POLLUTANTS AND REGULATED
OR UNREGULATED TOXIC AIR POLLUTANTS; (III) TRAFFIC VOLUME; (IV) NOISE
AND ODOR LEVELS; (V) EXPOSURE OR POTENTIAL EXPOSURE TO LEAD PAINT; (VI)
S. 922--A 6
EXPOSURE OR POTENTIAL EXPOSURE TO CONTAMINATED DRINKING WATER SUPPLIES;
(VII) PROXIMITY TO SOLID OR HAZARDOUS WASTE MANAGEMENT FACILITIES,
WASTEWATER TREATMENT PLANTS, HAZARDOUS WASTE SITES, AND PETROLEUM OR
CHEMICAL MANUFACTURING, STORAGE, TREATMENT OR DISPOSAL FACILITIES;
(VIII) THE POTENTIAL OR DOCUMENTED CUMULATIVE HUMAN HEALTH EFFECTS OF
THE FOREGOING POLLUTION SOURCES; AND (IX) THE POTENTIAL OR PROJECTED
CONTRIBUTION OF THE PROPOSED ACTION TO EXISTING POLLUTION BURDENS ON THE
SCHOOL FACILITY AND POTENTIAL HEALTH EFFECTS OF SUCH CONTRIBUTION,
TAKING INTO ACCOUNT EXISTING POLLUTION BURDENS.
§ 10. Section 408 of the education law is amended by adding a new
subdivision 7 as follows:
7. BEGINNING UPON THE EFFECTIVE DATE OF THIS SUBDIVISION, NO SCHOOL
BUILDING SHALL BE ERECTED, PURCHASED, OR ENLARGED WITHIN A DISTANCE OF
SIX HUNDRED FEET OF A MAJOR ROADWAY, AS DEFINED IN SECTION THREE HUNDRED
THIRTY-TWO OF THE HIGHWAY LAW, NOR SHALL THE ADVERTISEMENT FOR BIDS FOR
THE EXECUTION OF THE PLANS AND SPECIFICATIONS FOR SUCH SCHOOL BUILDINGS
BE PLACED IN ANY SCHOOL DISTRICT UNTIL THE PLANS AND SPECIFICATIONS
SHALL HAVE BEEN SUBMITTED TO THE COMMISSIONER AND HER APPROVAL ENDORSED
THEREON. THE COMMISSIONER SHALL NOT APPROVE SUCH PLANS AND SPECIFICA-
TIONS UNLESS THE DEPARTMENT OF TRANSPORTATION AND THE AGENCY PREPARING
THE ENVIRONMENTAL IMPACT STATEMENT IN ACCORDANCE WITH ARTICLE EIGHT OF
THE ENVIRONMENTAL CONSERVATION LAW HAVE DETERMINED THAT THE POLLUTION
SOURCES AROUND SUCH PROJECT DO NOT AND WILL NOT CONSTITUTE AN ACTUAL OR
POTENTIAL ENDANGERMENT OF PUBLIC HEALTH TO PERSONS WHO WOULD ATTEND OR
BE EMPLOYED AT OR OTHERWISE USE THE SCHOOL BUILDING OR THE EXCEPTIONS
SET FORTH IN SECTION THREE HUNDRED THIRTY-TWO OF THE HIGHWAY LAW WOULD
OTHERWISE APPLY.
§ 11. 1. (a) Within 90 days of the effective date of this section, the
New York State Department of Transportation or designee shall begin a
statewide census of public school facilities currently enrolling
students that are within 600 feet of a major roadway. The New York State
Department of Transportation shall make this data available annually on
its public-facing website, indicating each school by its name and zip
code, as well as reporting the average air quality index for the year as
compiled by the Department of Environmental Conservation and asthma
outcomes as compiled by the Department of Health.
(b) The Department of Environmental Conservation may request and shall
receive from any department, division, board, bureau, commission or
other agency of the state or any state public authority such assistance,
information and data as will enable it to properly carry out its powers
and duties under this section.
2. (a) After the first year of implementation, upon determination of
sufficient available resources, school districts with a school located
near a major roadway as defined in section 332 of the highway law shall
report updates on maintenance and quality assurance for air quality
mitigation measures, including but not limited to whether school facili-
ties currently have ventilation systems, including but not limited to:
(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.
(b) Previous year data collections shall remain available to the
public on the school's website.
§ 12. This act shall take effect on the first of April next succeeding
the date upon which it shall have become a law; provided, however, that
S. 922--A 7
section ten of this act shall take effect five years after it shall have
become law; and provided further that school construction projects with
requests for qualifications issued prior to such effective date shall be
permitted to continue notwithstanding the provisions of this act. Effec-
tive immediately, the addition, amendment and/or repeal of any rule or
regulation necessary for the implementation of this act on its effective
date are authorized to be made and completed on or before such effective
date.
