S T A T E O F N E W Y O R K
________________________________________________________________________
1317
2023-2024 Regular Sessions
I N S E N A T E
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:
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
S. 1317 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
S. 1317 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
S. 1317 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
S. 1317 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.
