S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1286
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2023
                                ___________
 
 Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
   tee on Environmental Conservation
 
 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:
 
   Section 1. Section 1 of 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, is amended to read as follows:
   Section 1. Legislative intent. The legislature finds and declares that
 each community in the state should equitably share the responsibilities,
 burdens, and benefits  of  managing  and  solving  ENVIRONMENTAL  HEALTH
 ISSUES  AND the state's environmental problems and the facilities neces-
 sary to accomplish such ends.  The  legislature  further  declares  that
 there  has  been  an  inequitable pattern in the siting of environmental
 facilities in minority and economically  distressed  communities,  which
 have  borne a disproportionate and inequitable share of such facilities.
 AS A RESULT OF THE INEQUITABLE PATTERN IN THE  SITING  OF  ENVIRONMENTAL
 FACILITIES,  MINORITY  AND  ECONOMICALLY  DISTRESSED  COMMUNITIES BEAR A
 GREATER ENVIRONMENTAL HEALTH BURDEN  DUE  TO  THE  CUMULATIVE  POLLUTION
 EXPOSURE  FROM  MULTIPLE  FACILITIES.  Consistent with its commitment to
 providing equal justice for its citizens, the state has a responsibility
 to establish requirements for the consideration  of  such  decisions  by
 state  and  local governments in order to [insure equality of treatment]
 ENSURE NO COMMUNITY BEARS A DISPROPORTIONATE POLLUTION  BURDEN,  AND  TO
 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
 A. 1286                             2
 
   §  2.  Section 8-0105 of the environmental conservation law is amended
 by adding a new subdivision 10 to read as follows:
   10.  "POLLUTION" SHALL HAVE THE SAME MEANING AS DEFINED BY SUBDIVISION
 NINETEEN OF SECTION 1-0303 OF THIS CHAPTER.
   § 3. Paragraphs (k) and (l) of subdivision 2 of section 8-0109 of  the
 environmental  conservation  law, as amended by 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, are amended to read as follows:
   (k) EFFECTS OF  ANY  PROPOSED  ACTION  ON  DISADVANTAGED  COMMUNITIES,
 INCLUDING  WHETHER  THE  ACTION MAY CAUSE OR INCREASE A DISPROPORTIONATE
 POLLUTION BURDEN ON A DISADVANTAGED COMMUNITY; AND
   (L) such other information consistent with the purposes of this  arti-
 cle as may be prescribed in guidelines issued by the commissioner pursu-
 ant to section 8-0113 of this chapter[; and
   (l)  effects  of  any  proposed  action  on disadvantaged communities,
 including whether the action may cause or increase a disproportionate or
 inequitable or both disproportionate and inequitable pollution burden on
 a disadvantaged community].
   § 4. The opening paragraph of subdivision 4 of section 8-0109  of  the
 environmental  conservation  law, as amended by 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, 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 action  [that  is
 not  a  minor project as defined in subdivision three of section 70-0105
 of this chapter] the responsible  agency  shall  consider  whether  such
 action  may cause or increase a disproportionate [or inequitable or both
 disproportionate and inequitable] POLLUTION burden  on  a  disadvantaged
 community  that is directly or significantly indirectly affected by such
 action.  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.
   § 5. Subparagraph (i) of paragraph (c) of  subdivision  2  of  section
 8-0113 of the environmental conservation law, as amended by 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, 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 increase, either directly or indirectly, a disproportionate  or
 inequitable or both disproportionate and inequitable pollution burden on
 a disadvantaged community];
   §  6. Paragraph (b) of subdivision 2 of section 8-0113 of the environ-
 mental conservation law, as amended by 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, is amended to read as follows:
   (b)  [(i)]  Criteria  for determining whether or not a proposed action
 may have a significant effect on the environment,  taking  into  account
 social  and economic factors to be considered in determining the signif-
 icance of an environmental effect, INCLUDING WHETHER  IT  MAY  CAUSE  OR
 A. 1286                             3
 
 INCREASE A DISPROPORTIONATE POLLUTION BURDEN ON A DISADVANTAGED COMMUNI-
 TY;
   [(ii) Such criteria shall include consideration of the extent to which
 a  proposed  action  may  reasonably  be expected to cause or increase a
 disproportionate or inequitable or both disproportionate and inequitable
 burden on disadvantaged communities;]
   § 7. Section 70-0118 of the environmental conservation law,  as  added
 by 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, is amended to read as
 follows:
 § 70-0118. Disproportionate impacts on disadvantaged communities.
   1. For the purposes of this section:
   (a) "Disadvantaged communities" shall have the same meaning as  subdi-
 vision five of section 75-0101 of this chapter.
   (b)  ["Existing  burden report" shall mean the report required by this
 section describing the existing  pollution  burden  in  a  disadvantaged
 community.
   2.  When  issuing]  "APPLICABLE  PERMIT"  SHALL MEAN a permit [for any
 project that is not a minor project as defined in subdivision  three  of
 section  70-0105  of this article and that], EXCLUDING A GENERAL PERMIT,
 APPLIED FOR PURSUANT TO:
   (I) TITLE FIFTEEN OF ARTICLE FIFTEEN OF THIS CHAPTER  FOR  A  FACILITY
 WITHDRAWING  AND  USING OVER TWENTY MILLION GALLONS PER DAY OF WATER FOR
 COOLING PURPOSES;
   (II) ARTICLE SEVENTEEN OF THIS CHAPTER;
   (III) ARTICLE NINETEEN OF THIS CHAPTER;
   (IV) TITLE SEVENTEEN OF ARTICLE TWENTY-THREE OF THIS CHAPTER; OR
   (V) TITLE THREE, TITLE SEVEN, TITLE NINE OR TITLE  ELEVEN  OF  ARTICLE
 TWENTY-SEVEN OF THIS CHAPTER.
   2. (A) WHEN A NEW PROJECT SUBJECT TO AN APPLICABLE PERMIT may [direct-
 ly  or  indirectly  affect]  CAUSE  OR CONTRIBUTE MORE THAN A DE MINIMIS
 AMOUNT OF POLLUTION TO ANY DISPROPORTIONATE POLLUTION BURDEN ON a disad-
 vantaged community,  the  department  shall  REQUIRE  THE  APPLICANT  TO
 prepare  or  cause  to  be prepared an existing burden report [and shall
 consider such report in determining whether such project  may  cause  or
 contribute  to,  either  directly  or  indirectly, a disproportionate or
 inequitable or both disproportionate and inequitable pollution burden on
 a disadvantaged community].
   (B) IN THE CASE OF AN APPLICATION FOR RENEWAL OR  MODIFICATION  OF  AN
 APPLICABLE PERMIT NOT SUBJECT TO THE PROVISIONS OF PARAGRAPH (A) OF THIS
 SUBDIVISION  WHICH MAY CAUSE OR CONTRIBUTE MORE THAN A DE MINIMIS AMOUNT
 OF POLLUTION TO ANY DISPROPORTIONATE POLLUTION BURDEN ON A DISADVANTAGED
 COMMUNITY THE DEPARTMENT SHALL REQUIRE THE APPLICANT TO PREPARE OR CAUSE
 TO BE PREPARED AN EXISTING BURDEN REPORT;  PROVIDED,  HOWEVER  THAT  THE
 DEPARTMENT  MAY  ELECT NOT TO REQUIRE SUCH EXISTING BURDEN REPORT IF THE
 PERMIT WOULD SERVE AN ESSENTIAL ENVIRONMENTAL, HEALTH, OR SAFETY NEED OF
 THE DISADVANTAGED COMMUNITY FOR WHICH THERE IS  NO  REASONABLE  ALTERNA-
 TIVE.
   (C)  NOTWITHSTANDING THE REQUIREMENTS OF PARAGRAPHS (A) OR (B) OF THIS
 SUBDIVISION, NO EXISTING BURDEN REPORT SHALL BE REQUIRED FOR AN APPLICA-
 TION FOR A RENEWAL OF A PERMIT IF AN EXISTING  BURDEN  REPORT  HAS  BEEN
 PREPARED WITH RESPECT TO SUCH PERMIT WITHIN THE PREVIOUS TEN YEARS.
   3. [No permit shall be approved or renewed by the department if it may
 cause  or  contribute  to,  either  directly or indirectly, a dispropor-
 tionate  or  inequitable  or  both  disproportionate   and   inequitable
 A. 1286                             4

 pollution  burden on a disadvantaged community.] (A) WHEN CONSIDERING AN
 APPLICATION FOR AN APPLICABLE PERMIT, THE DEPARTMENT SHALL CONSIDER  THE
 EXISTING  BURDEN  REPORT,  IF  ANY,  AND  AN  ADMINISTRATIVE RECORD THAT
 INCLUDES,  BUT  IS  NOT LIMITED TO, COMMENTS RECEIVED FROM THE PUBLIC IN
 THE DISADVANTAGED COMMUNITY.
   (B) THE DEPARTMENT SHALL NOT ISSUE AN  APPLICABLE  PERMIT  FOR  A  NEW
 PROJECT  IF IT DETERMINES THAT THE PROJECT WILL CAUSE OR CONTRIBUTE MORE
 THAN A DE MINIMIS AMOUNT OF POLLUTION TO  A  DISPROPORTIONATE  POLLUTION
 BURDEN ON THE DISADVANTAGED COMMUNITY.
   (C)  IN THE CASE OF AN APPLICATION FOR A MODIFICATION OF AN APPLICABLE
 PERMIT, THE DEPARTMENT SHALL NOT ISSUE AN APPLICABLE PERMIT IF IT DETER-
 MINES THAT THE ISSUANCE OF THE PERMIT WOULD SIGNIFICANTLY  INCREASE  THE
 EXISTING DISPROPORTIONATE POLLUTION BURDEN ON THE DISADVANTAGED COMMUNI-
 TY.
   (D) IN THE CASE OF AN APPLICATION FOR RENEWAL OF AN APPLICABLE PERMIT,
 THE  DEPARTMENT  SHALL  NOT  ISSUE AN APPLICABLE PERMIT IF IT DETERMINES
 THAT THE PROJECT WOULD SIGNIFICANTLY INCREASE  THE  EXISTING  DISPROPOR-
 TIONATE POLLUTION BURDEN ON THE DISADVANTAGED COMMUNITY.
   4.  THE  DEPARTMENT SHALL REQUIRE ACTIONS TO IMPLEMENT ANY APPROPRIATE
 OPERATIONAL CHANGES WHICH WOULD  REDUCE  THE  POLLUTION  BURDEN  ON  THE
 DISADVANTAGED  COMMUNITY AS A CONDITION OF AN APPLICABLE PERMIT, ONLY IF
 SUCH ACTIONS ARE  REASONABLE  AND  PRACTICABLE,  AS  DETERMINED  BY  THE
 DEPARTMENT.
   5.  THE  DEPARTMENT,  IN  CONSULTATION  WITH THE DEPARTMENT OF HEALTH,
 SHALL DEVELOP THE SCOPE OF THE EXISTING BURDEN REPORT AND MAY ADAPT SUCH
 REQUIREMENTS BASED ON WHETHER A PERMIT APPLICATION IS FOR A NEW PROJECT,
 MODIFICATION, OR A RENEWAL OF A PERMIT. THE DEPARTMENT SHALL PROVIDE FOR
 AT LEAST A THIRTY-DAY PUBLIC COMMENT  PERIOD  PRIOR  TO  FINALIZING  THE
 SCOPE  OF  THE REPORT. THE REPORT SHALL PROVIDE FOR AN ASSESSMENT OF THE
 FOLLOWING INFORMATION:
   (A) RELEVANT BASELINE DATA ON EXISTING BURDENS, INCLUDING  FROM  RELE-
 VANT CRITERIA USED TO DESIGNATE THE PARTICULAR DISADVANTAGED COMMUNITIES
 PURSUANT TO SUBDIVISION ONE OF SECTION 75-0111 OF THIS CHAPTER;
   (B)  THE ENVIRONMENTAL OR PUBLIC HEALTH STRESSORS ALREADY BORNE BY THE
 DISADVANTAGED COMMUNITY AS A RESULT OF EXISTING CONDITIONS LOCATED IN OR
 AFFECTING THE DISADVANTAGED COMMUNITY;
   (C) THE POTENTIAL OR PROJECTED CONTRIBUTION OF THE PROPOSED ACTION  TO
 EXISTING POLLUTION BURDENS IN THE COMMUNITY; AND
   (D)  EXISTING  AND  POTENTIAL BENEFITS OF THE PROJECT TO THE COMMUNITY
 INCLUDING INCREASED HOUSING SUPPLY, OR ALLEVIATION OF EXISTING POLLUTION
 BURDENS THAT MAY BE  PROVIDED  BY  THE  PROJECT,  INCLUDING  OPERATIONAL
 CHANGES  TO  THE  PROJECT  THAT WOULD REDUCE THE POLLUTION BURDEN ON THE
 DISADVANTAGED COMMUNITY.
   § 8. Subdivision 1 of section 70-0107 of the  environmental  conserva-
 tion law, as amended by a chapter of the laws of 2022 amending the envi-
 ronmental  conservation  law  relating  to the location of environmental
 facilities, as proposed in legislative bills  numbers  S.  8830  and  A.
 2103-D, is amended to read as follows:
   1.  The  department, after public hearing, shall adopt rules and regu-
 lations to assure the efficient and expeditious administration  of  this
 article.  Such rules and regulations shall include but not be limited to
 provisions regarding notice, review,  public  participation  and  public
 hearings.  [Such  rules  and regulations shall also include the form and
 content of an existing burden report which shall, at a minimum,  include
 baseline  monitoring data collected in the affected disadvantaged commu-
 nity within two years of the application for a permit or approval    and
 A. 1286                             5

 shall  identify:  (a)  each  existing  pollution source or categories of
 sources affecting a disadvantaged community and the potential routes  of
 human  exposure to  pollution from that source or categories of sources;
 (b)  ambient  concentration of regulated air pollutants and regulated or
 unregulated toxic air  pollutants; (c) traffic   volume; (d)  noise  and
 odor levels; (e) exposure or potential exposure to lead paint; (f) expo-
 sure  or potential exposure to contaminated drinking water supplies; (g)
 proximity to solid or hazardous waste management  facilities, wastewater
 treatment   plants, hazardous  waste    sites,  incinerators,  recycling
 facilities, waste transfer facilities and petroleum or chemical manufac-
 turing,  storage, treatment or disposal facilities; (h) the potential or
 documented cumulative human health effects of  the foregoing   pollution
 sources;  (i)  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.]
   § 9. Section 9 of a chapter of the laws of 2022 amending the  environ-
 mental conservation law relating to the location of environmental facil-
 ities,  as proposed in legislative bills numbers S. 8830 and A.  2103-D,
 is amended to read as follows:
   § 9. This act shall take effect [on the one hundred eightieth day] TWO
 YEARS after it shall have become a law[; provided that section three  of
 this  act  shall  not  apply  to  any person who has received an initial
 determination pursuant to subdivision 4 of section 8-0109 of  the  envi-
 ronmental  conservation law prior to such date and provided further that
 section five of this act shall not apply to any determination of signif-
 icance made prior to such date].
   § 10. No addition or amendment made to the environmental  conservation
 law  under  this act or under 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,  shall  limit the existing authority of any state entity to deny
 or condition permits, licenses, or other administrative approvals.
   § 11. No addition or amendment made to the environmental  conservation
 law  under  this act or under 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, shall relieve any person from compliance with any other require-
 ment to not disproportionately burden disadvantaged communities as iden-
 tified  pursuant  to  section  75-0111 of the environmental conservation
 law.
   § 12. The commissioner of environmental conservation is authorized and
 directed to promulgate rules and regulations in accordance with subdivi-
 sion one of section 70-0107 of the  environmental  conservation  law  to
 effectuate  the provisions of this act and 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.
   § 13. This act shall take effect immediately; provided,  however  that
 sections one, two, three, four, five, six, seven, eight, ten, eleven and
 twelve  of  this  act shall take effect on the same date and in the same
 manner as 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,  takes
 effect.