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DEC Proposes Article 10 Regulations Addressing Environmental Justice and Carbon Dioxide

Client Advisory

February 17, 2012

Article 10 of New York’s Public Service Law, passed in June 2011, governs the siting of new electric generating facilities. In order for the Article 10 process to become effective, however, the law requires the Department of Environmental Conservation (“DEC”) to adopt regulations addressing Environmental Justice (“EJ”) and carbon dioxide emissions. The law also requires the Department of Public Service (“DPS”) to adopt regulations defining the “Siting Board” and governing the Article 10 siting process. This advisory focuses on the DEC regulations, for which the public comment period is open until March 15, 2012.[1] 

The EJ regulations would require detailed demographic analysis necessary to avoid disproportionate impacts on EJ communities. The carbon dioxide regulations would create numeric emission standards for new electric generation facilities. The full texts of the draft regulations are available on the DEC website.[2] Brief summaries follow.

Part 487 - Analyzing Environmental Justice Issues in Siting of Major Electric Generating Facilities Pursuant to Public Service Law Article 10

 An environmental justice area is a minority or low-income community that may bear a disproportionate share of the negative environmental consequences from industrial or government operations. Article 10 requires applicants to avoid, offset or minimize disproportionate environmental impacts to environmental justice areas to the maximum extent practicable using verifiable measures.[3] The proposed regulations explain how to identify an environmental justice area and what analysis is required to ensure disproportionate impacts are avoided.
 
EJ analysis is triggered by two scenarios based on the communities located within ½ mile of the proposed power plant or alternative sites, areas referred to as the impact study areas. First, an applicant must undertake EJ analysis if a minority[4] or low-income[5] community is located within the impact study area. Second, analysis is required if a minority or low-income population above 85% of the threshold is within the impact study area and air quality and health outcome data reveals that the area may bear a disproportionate share of the negative environmental consequences from industrial and government operations when compared to the county, adjacent communities, and, if located in New York City, the city as a whole.
 
If required, EJ analysis must be fully developed during the Article 10 pre-application process. The analysis would (as currently proposed) include: a cumulative impact analysis of air quality; comprehensive demographic, economic and physical descriptions of the impact study area and the comparison area; an evaluation of significant and adverse disproportionate environmental impacts; discussion of measures to avoid, offset, or minimize those impacts; and, a statement of environmental justice issues. The air analysis must account for the proposed facility, existing sources within a defined air impact area, and any other proposed or permitted sources within 6 miles. The physical description of the impact study area must include, among other things, public health data on asthma and cancer, and the concentration of permitted air and water pollution sources, petroleum bulk storage facilities, solid and hazardous waste treatment, storage and disposal facilities, and brownfield sites. The evaluation of significant adverse impacts involves measuring impacts against applicable regulatory thresholds and consideration of the scope and duration of impacts, including the nature of impacts on children or the elderly, and increased risk in the event of natural or man-made disasters.
 
Part 251 - CO2 Performance Standards for Major Electric Generating Facilities
 
DEC has proposed carbon dioxide emission limits that apply to new electric generating facilities or existing facilities that increase capacity by at least 25 megawatts. For facilities increasing capacity, the standards only apply to the unit involved in the increase in capacity. The proposed regulations also include provisions for permitting, monitoring, recordkeeping and reporting carbon dioxide emissions.
 
The regulations include numerical limits that vary depending on the type of power facility constructed. Boilers that fire greater than 70 percent fossil fuel, combined cycle combustion turbines and gas fired internal combustion engines are subject to emission standards that roughly approximate the emissions expected from a new natural gas fired facility. Simple cycle gas turbines or internal combustion engines that fire liquid fuel or liquid or gaseous fuel are subject to somewhat less stringent emission standards that approximate emissions from a new oil fired facility. The take-away from these limits is that coal fired and oil fired boilers cannot be permitted under these emission standards until and unless affordable carbon capture or storage methods are developed.[6]
 
The regulations also include a provision for other emission sources not described above, including any emission source directly attached to a gasifier, biomass fired facilities and waste to energy facilities. The owners or operators of those facilities must propose and meet case-specific emission limits for carbon dioxide. Proposals must be based on analysis of existing control technologies and operating efficiencies of existing sources. Proposed limits must achieve the maximum degree of carbon dioxide emission reduction for new sources, and must be as stringently controlled, and operate as efficiently, as the best controlled similar sources.
 
 

Questions regarding this advisory should be addressed to author Michael K. Plumb (212-238-8794, postmaster@clm.com), Christine A. Fazio (212-238-8754, fazio@clm.com), or Christopher Rizzo (212-238-8677, rizzo@clm.com).
 
Endnotes

[1] The DPS released draft regulations on January 13, 2012. Like the DEC draft regulations and Article 10 itself, the DPS draft reflects a vigorous commitment to assessment of community impacts and involvement of localities and the public.

[3] N.Y. Pub. Serv. L. § 168.3.d.

[4] A minority community is proposed to be defined as a 51.1% minority population in an urban area or 33.8% minority population in a rural area. A minority population is a population recognized by the U.S. Census Bureau as Hispanic, African-American or Black, Asian and Pacific Islander, or American Indian.

[5] A low-income community is proposed to be defined as a census block group, or contiguous area with multiple census block groups, where 23.59% or more of the population have an annual income that is less than the poverty threshold.

[6] See DEC Regulatory Impact Statement Summary at http://www.dec.ny.gov/regulations/79546.html.



Carter Ledyard & Milburn LLP uses Client Advisories to inform clients and other interested parties of noteworthy issues, decisions and legislation which may affect them or their businesses. A Client Advisory does not constitute legal advice or an opinion. This document was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. © 2014 Carter Ledyard & Milburn LLP.
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