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Statement of

Dan Durett, Director

African American Environmentalist Association - New York

Before the

New York Department of Environmental Conservation

Office of Environmental Justice

on

Environmental Justice Proposed Regulations

 

Notice of Proposed Addition of 6 NYCRR Part 487, Analyzing Environmental Justice Issues in Siting of Major Electric Generating Facilities Pursuant to Public Service Law Article 10

 

at the


 
NYS Department of Public Service

90 Church Street, 4th Floor

New York, NY 10007

 

Tuesday, March 6, 2012

 

 

 

            My name is Dan Durett and I am  Director of the African American Environmentalist Association - New York (AAEA-NY).   My comments are on the Environmental Justice Proposed Regulations related to issues in the siting of major electric generating facilities pursuant to Public Service Law Article 10. 

            The African American Environmentalist Association was founded in 1985 and is a national, nonprofit environmental organization dedicated to protecting the environment, enhancing human, animal and plant ecologies, promoting the efficient use of natural resources and increasing African American participation in the environmental movement.  AAEA-NY was established in 2004.

            AAEA is concerned about the proposed approach for the evaluation of a potentially significant and adverse  disproportionate environmental impact area.  The evaluation is left up to the applicant. We are concerned that there are no established criteria proposed in the proposed regulation that can definitively evaluate a 'tipping point' that would trigger rejection of the application based on significant and adverse disproportionate environmental impacts.   We are concerned because even the DEC EJ Work Group had trouble agreeing upon a disproportionate impact methodology.  If these professional EJ participants had trouble establishing disproportionate impact methodology, we are concerned that applicants will have the capacity to provide an adequate framework for the EJ evaluation. 

            A DEC EJ Work Group was unable to agree on a disproportionate impact methodology.  The CP-29 description stated, "Although the Advisory Group report recommended a basic methodology for conducting such an analysis, further definition and specific criteria are needed..."[1]  AAEA-NY also submitted comments to the DEC Work Group Final Report that indicated the difficulty in establishing research and policy parameters for determining 'disproportionate impact.'  The AAEA-NY comments stated:

            AAEA is disappointed that the Work Group was unable to reach a consensus on the most important items being considered by the review of the environmental impact assessment process. 

The Work Group failed to reach consensus on the following items:

·         How to conduct a disproportionate impact analysis

·         Whether or not or to what extent existing conditions or burdens should be incorporated into a project-specific disproportionate adverse impact analysis.[2]

            Instead of a criterion or criteria that would trigger rejection of the application based on disproportionate impact, the Section 487.10 Evaluation of Significant and Adverse Disproportionate Environmental Impacts (d) states:

In the event that the applicant's evaluation indicates that the proposed facility is likely to result in or contribute to any significant and adverse disproportionate environmental impact in the Impact Study Area during its construction or operation, the applicant shall identify the specific measures it will take to avoid, offset or minimize each impact for the duration that the Certificate is issued to the maximum extent practicable using verifiable measures. The applicant shall include in its evaluation a discussion of the effect these measures would have on the applicant's conclusions about any significant and adverse disproportionate environmental impacts in the Impact Study Area. The applicant shall avoid any disproportionate impact to the maximum extent practicable, or, if the applicant cannot avoid the impact, the applicant shall minimize the impact to the maximum extent practicable. If the impact cannot be avoided or minimized, the applicant shall offset the impact, with priority given to offset measures that will benefit the area where the degree of significant and adverse disproportionate impact is greatest.

            We understand that this is the legislative prescription, but clearly the legislative intent is to provide protection for vulnerable communities.  These communities cannot be protected if they are already disproportionately impacted and other emitting facilities are sited and operated in the vulnerable area.  The applicant is simply instructed to 'avoid, offset or minimize each impact.'  If the applicant cannot do this then they are instructed to 'offset measures that will benefit the area.'  The proposed regulation does not recommend the type of offset measures.  How does the applicant offset criteria and non-criteria air pollutants?   The applicant could propose just about anything if it is not prescribed in the regulation.  We believe there is room in the statute to provide a provision in the regulation that if the applicant cannot avoid or minimize the impact and if there are no reasonable offsets, then the application should be denied.  This is fundamental to the idea of protecting communities that are disproportionately impacted by pollution.

            AAEA recommends that the New York State Department of Environmental Conservation (DEC)  should replace the one-half mile radius designated in the proposed regulation as the Impact Study Area to be two (2) miles.  Section 487.4: Defining the Impact Study Area, should be modified to state that: (a) At a minimum, the Impact Study Area must be the geographic area that is encompassed within a two mile radius around the proposed location of the facility.  We believe the one-half mile area is too small and will limit the effectiveness of the environmental justice analysis. The expanded impact area designation is needed in order to include more facilities in the assessment of whether an area suffers from disproportionate environmental impacts.  Although the applicant is given the option of increasing the Impact Study Area based on site-specific factors, we believe the regulation should specifically refer to the two mile radius.  We also recommend the two mile designation for the alternate locations.

            The Article 10 law allows for, "'A cumulative impact analysis of air quality within a half-mile of the facility, or other radius as determined by standards established by Department of Environmental Conservation regulations..." 

            We are concerned that ozone is not included as part of the cumulative air impact analysis. Although the other five criteria pollutants are included, ozone is probably the most important pollutant in terms of health impacts as related to environmental justice.  The proposed regulation states that, "The procedures identified in 6 NYCRR Part 231 for assessing ozone precursor emissions will satisfy the requirement of this section for the cumulative impact analysis."  We disagree.  We understand that the procedure is fine within the context of evaluation under the federal New Source Review Program, but it does not include a framework for considering environmental justice.  Thus, by separating out this important pollutant, it could undermine the effectiveness of the cumulative impact analysis. Because ozone is excluded in the Article 10 law, we would suggest that the applicant utilize the ozone precursors of volatile organic compounds and oxides of nitrogen to assess equivalent effects. 

            Our specific  concern about the ozone exclusion in the regulation is the use of the phrase 'will satisfy' the requirement of this section for the cumulative impact analysis.   Although the applicant will conduct an analysis under the procedures specified in 6 NYCRR Part 231, we are concerned that the analysis of smog will not be sufficient to adequately address disproportionate impact issues. Ozone, particulate matter less than 10 microns (PM-10), and particulate matter less than 2.5 microns (PM-2.5) are currently designated as non-attainment contaminants in New York State. Ozone is regulated by its precursors; volatile organic compounds (VOC) and oxides of nitrogen (NOx). The Department's Part 200 regulation defines the specific areas of the State that are designated as non-attainment for these contaminants.[3]

                        According to the Environmental Protection Agency (EPA), the metropolitan region of New York City has consistently failed to meet the clean air standards for smog-causing ozone.  The DEC is required to create a plan for New York to meet the standards.  Smog is a public health concern because it causes respiratory illness and aggravates asthma.  Smog is formed on hot, sunny days, when sunlight causes nitrogen oxides (NOx) and volatile organic compounds (VOCs) to react and form ozone.  These pollutants come from cars, trucks, diesel construction equipment, power plants, refineries, other large industrial facilities and from paints and some consumer products.  When inhaled, ozone can make people more susceptible to respiratory infection, result in inflammation of lung tissue, aggravate existing respiratory diseases such as asthma, and lead to increased hospital admissions and emergency room visits.  Ozone can cause significant decreases in lung function and increased respiratory symptoms. 

            Environmental justice areas are already disproportionately impacted by a large number of pollution sites.  The elderly and children are particularly susceptible to exposure to smog.  In April 2007, when announcing PlaNYC 2030, Mayor Michael Bloomberg referred to New York City's air quality and asthma problems:

"In parts of the Bronx, Brooklyn, and Harlem, children are hospitalized for asthma at near four times the national average.  Four times!  We cannot turn a blind eye to this outrage.  All our children deserve a healthy start in life.  Many people call that environmental justice; I simply call it the right thing to do."[4]

In May 2006, Council Member Jose Serrano spoke on behalf of the Asthma Task Force, stating, "Children in the South Bronx are five times more likely to be hospitalized because of respiratory ailments.  Council Member Serrano added,  "Fragile communities [such as Hunts Point] are at a greater risk because of pollution caused by power plants and other large emission sites."[5]

            Our point is that, from an environmental justice perspective, major areas of certain boroughs would appear to be off limits for consideration of locating new power plants.  Yet the proposed regulation allows location of such facilities if the applicant proposes to minimize or offset the impact to the maximum extent practicable.  The point of mitigating environmental injustice is to prevent additional pollution sites from being located in the environmental justice area.  This regulation appears to have a loophole for that consideration.

            In New York City, it is estimated that there are 2,290 deaths, 1,580 hospitalizations, 546 asthma-related emergency rooms visits, 1,490 cases of chronic bronchitis, and 46,200 asthma attacks yearly attributable to power plant pollution[6]  The New York City Area has also been ranked as one of the top five U.S. metropolitan areas for particulate air pollution.  And again, these adverse effects disproportionately affect minority communities.  In one study, nonwhites in New York City were found to be hospitalized twice as many times as whites on days when ozone levels were high.  Another study found that, of the 23 counties in New York State that fail to meet Federal air pollution standards, 37.7% of them are populated by people of color.[7]

            That African Americans and other minorities are disproportionately affected by air pollution in New York is not surprising when considering the fact that the majority of air polluting power plants in the New York metropolitan area are located in African American and other minority communities.  Based on figures from the 2000 U.S. Census, only 12.3% of New York State is identified as being African American, and  29.4 % of the total population is classified as a minority.  However, in communities that are predominantly minority, such as Queens, the Bronx, and Brooklyn, there are a disproportionate number of fossil-fuel power plants emitting criteria air pollutants.  For example, there are approximately 1,563,400 people of color, 271,247 children living in poverty, and 40,248 children who suffer from pediatric asthma within 30 miles of a coal-fired power plant bordering the New York City metropolitan area.  In the Bronx, which is 35.6% African American and 88% minority, there are two power plants.  In Brooklyn, which is 36.4% African American and 64% minority, there are seven power plants.  In Queens, which is 20% African American and 63.2% minority, there are six power plants.  Queens is also ranked among the 10% of U.S. counties in terms of its exposure to criteria air pollutants, and is one of two city boroughs that violates federal standards. In total, there are 24 power plants in the New York Metropolitan area, only a handful of which are in areas where minorities do not comprise the majority of the population.[8]/[9]

            AAEA concurs with the 6 miles radius for any major stationary source in the cumulative impact analysis of air quality.  AAEA concurs with the comprehensive demographic, economic and physical descriptions.  AAEA particularly likes including New York City as a whole being used as a third Comparison Area if the Impact Study Area is within the City of New York. 

            The bill below is the AAEA draft of a New York City environmental justice bill. The legislation was introduced by Councilmember Charles Barron in an amended form.

---------------------------------------------------------------------------------------------------------------------

 Int. No. _____   

                                                                                                                                                           

 By Council Member ________________________________                                                              

A LOCAL BILL

 

New York Environmental Justice Act of 2004

 

To amend the administrative code of the City of New York to establish a program to ensure nondiscriminatory compliance with environmental, energy, health, and safety laws, to ensure equal protection of the public health and to promote economic development in underdeveloped communities. To require New York City agencies to develop and implement policies and practices that promote environmental justice, and for other purposes.

 

FOR the purpose of establishing the Commission on Environmental Justice; providing for the membership and terms of the Commission; requiring the Mayor to designate the chairman of the commission; providing for the staff, meeting times and places, and quorum of the commission; requiring the commission to submit a certain report on or before a certain date each year; defining a certain term; and generally relating to the Commission on Environmental Justice.

Preamble

Whereas, environmental justice is based on the principle that regardless of race, national origin, age, or income, no segment of the population should bear disproportionately high and adverse effects of environmental pollution; and

Whereas, the city supports and is committed to the principle of environmental justice and equal

protection of all citizens of the city in a manner that fully complies with Title VI of the Civil Rights Act

of 1964; and

Whereas, major citywide revitalization initiatives for reducing pollution, encouraging redevelopment,

and enhancing community life address environmental conditions of our communities and provide new economic opportunities in these communities, while preserving more pristine areas from pollution and

Whereas, economic development and environmental protection are interdependent, and equal treatment and opportunities must be afforded to all citizens of the city by involving affected communities; and

Whereas, certain communities in the city may suffer disproportionately from environmental hazards

related to programs and policies designed to encourage industrial, municipal, or commercial revitalization; and

Whereas, fair treatment suggests that no community should disproportionately suffer the negative

environmental impacts resulting from industrial, municipal, and commercial operations or the

implementation of city programs and policies; and

Whereas, environmental justice considerations should be integrated into the city's revitalization

initiatives for reducing pollution, encouraging redevelopment, and enhancing community life; and

Whereas, environmental justice does not need to hinder economic development, and economic

development and environmental equity in the city can and should be effectively balanced; and

Whereas, the New York Governor and the New York State Department of Environmental Conservation (DEC) Commissioner have recognized “the importance of environmental justice and the need for community involvement in environmental decision-making by creating the DEC’s Office of Environmental Justice in September 1999.  This Office, which implements the DEC’s Environmental Justice Program, seeks to “ensure that local communities are given an opportunity to express their concerns and that those concerns are considered when making decisions which potentially impact the environment and public health.”[10]  On March 19, 2003, the DEC issued Policy Statement CP-29: Environmental Justice and Permitting.  In issuing this policy, the DEC stated that the policy was meant to “promote the fair involvement of all people in the DEC environmental permit process,” and further stated that:

 

It is the general policy of DEC to promote environmental justice and incorporate measures for achieving environmental justice into its programs, policies, regulations, legislative proposals and activities.  This policy is specifically intended to ensure that DEC’s environmental permit process promotes environmental justice.

 

Unfortunately, the environmental justice office and program are not codified in state law because no law has been enacted by the New York State legislature and there is no city environmental justice law; and

 

Whereas, although environmental and health data of toxic chemical releases are not routinely collected and analyzed by income and race, racial and ethnic minorities and lower income Americans may be disproportionately exposed to toxic chemicals in their residential and workplace environments; and

 

Whereas, the New York City Department of Environmental Protection (DEP) does not investigate whether county departments of environment are complying with its civil rights obligation; and

Whereas, the DEP cannot provide any effective relief to a civil rights complainant under its own

regulations; and

Whereas, the sole relief available for victims of environmental civil rights violations is through a

private action if an individual or the community can prove intentional discrimination.  To date, no

such action has been successful.

Now, therefore, be it enacted by the City Council of New York, that the laws of

New York City read as follows:

Section 1. Definitions. In this section the following words have the meanings indicated.

"Commissioner" means the Commissioner of the New York Department of Environmental Protection.

“Commission” means the Commission on Environmental Justice

“Environmental Justice” means equal protection from environmental and public health hazards for all

people regardless of race, income, culture, and social status.

“Fair Treatment” means policies and practices that will minimize the likelihood that a minority or low-income community will bear a disproportionate share of the adverse environmental consequences, or be denied reasonable access to the environmental benefits, resulting from implementation of a city program or policy.

“Department” means the Department of Environmental Protection.

“Affected Area” means any area determined by DEP that suffers disproportionately from negative health, environmental or economic impacts.

“Protected Area' means any affected area protected by local community designation and supported by DEP analysis. 

 

“Brownfield” means any previously developed and currently polluted area selected by local community designation and supported by DEP analysis that is targeted for redevelopment.

“Pollution Releasing Facility” (PRF) means any facility that is permitted on the following list: Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), Resource Conservation Recovery Act (RCRA-Large), Clean Air Act, Clean Water Act, Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Emergency Planning and Community Right-To-Know Act of 1986 or any dangerous undocumented source of pollution that is determined by the local

community and confirmed by DEP. Specifically, any facility:

(a) Subject to reporting requirements under the Emergency Planning and Community Right-To-Know Act of 1986;

(b) That generates, treats, stores or disposes of a hazardous waste as defined in section 3001 of the Solid Waste Disposal Act;

                                  (c) Subject to Section 112 or 129 of the Clean Air Act;

                                  (d) Subject to Sections 307 or 311 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);

                                  (e) Subject to the Federal Insecticide, Fungicide and Rodenticide

Act (7 U.S.C. 136 et seq.); or

                                  (f) Subject to the requirements concerning material safety data sheets for hazardous chemicals under the Occupational Safety and Health Act of 1970 (15 U.S.C. 615 et seq.) for the purpose of this act the term `toxic chemical facility' shall include any facility that releases a

toxic chemical.

Nonpollution Releasing Facility' (NRF) means any facility that is not permitted on the following list: CERCLA, RCRA (large), Clean Air Act, Clean Water Act, FIFRA, Emergency Planning and Community Right-To-Know Act of 1986 or is not an undocumented source of pollution as determined by the local community and confirmed by DEP. 

“Toxic Chemicals” means—

                                  (a) All hazardous substances as defined in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. 9601(14);

                                  (b) All materials registered pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.);

                                  (c) All chemicals subject to Section 313 of the Emergency Planning and Community Right-To-Know Act of 1986;

                                  (d) All contaminants identified in the safe drinking water act (42 U.S.C. 300g-1);

                                  (e) All chemicals listed by the national toxicology program as known or probable human carcinogens; and

                                  (f) All materials subject to the requirements concerning material safety data sheets for hazardous chemicals under the occupational and safety and health act of 1970 (15 U.S.C. 615 et seq.).

“Release” shall have the same meaning as used in section 101(22) of the Comprehensive Environmental Response, Compensation and Liability Act of 1990 as amended by the Superfund Amendments and Reauthorization Act of 1986, and shall also include any release which results in exposure to persons within a workplace.

“City Agency” means- (a) each city entity represented on the working group; (b) any other entity that conducts any city program or activity that substantially affects human health or the environment; and

(c) each city agency that implements any program, policy, or activity applicable to low-income Americans.

Section 2. Commission on Environmental Justice

The commission consists of the following 20 members:

 

(1)          The Chairman,

(2)          The Commissioner, or the Commissioner’s designee;

(3)          The Chairman of the city council Environmental Protection Committee, or the chairman’s designee;

(5)          The Chairman of the city council Land Use Committee, or the chairman’s designee;

(6)          The Chairman of the city council Sanitation & Waste Management Committee, or the chairman’s designee;

(7)          The Chairman of the city council Waterfronts Committee;

(8)          The Chairman of the city council Parks and Recreation Committee;

(9)          The Chairman of the city council Select Committee on Civil Rights;

(10)       The Chairman of the city council Select Committee on Community Development;

(11)       Five members from one Community Board from each borough;

(12)       One member from an environmental justice organization;

(13)       One member from a traditional environmental organization;

(14)       One member from the business community;

(15)       One member from a health related institution; and

(16)       One member from the general public with interest or expertise in environmental justice.

(a)          The term of a member is 2 years. At the end of a term, a member continues to serve until a successor is appointed.

(b)          A member who is appointed after a term has begun serves only for the rest of the term and until a successor is appointed.

(c)          A member may not be appointed to more than two consecutive terms.

          (e)       The Mayor shall designate the chairman of the commission.

(d)          The Department shall provide staff for the commission.

(e)          The Commission shall meet at the times and places that the chairman determines.

(f)           A majority of members of the Commission shall constitute a quorum for the transaction of business.

(g)          A member of the Commission:

(1)  May receive compensation; and

(2)  Is entitled to reimbursement for expenses under the standard city travel regulations, as provided in the state budget.

The Commission shall:

                      (1)       Advise city government agencies on environmental justice and related community issues;

                      (2)       Review and analyze the impact of current city laws and policies on the issue of environmental justice;

                      (3)       Assess the adequacy of city laws to address the issue of environmental justice;

                      (4)       Coordinate city children's programs with recommendations related to

 environmental justice;

                      (5)       Develop criteria to assess whether communities in the city may be experiencing environmental justice issues; and

                      (6)       Recommend options to the Mayor for addressing issues, concerns, or problems related to environmental justice that surface after reviewing city laws and policies, including prioritizing areas of the city that need immediate attention.

On or before October 1 of each year, the commission shall report its findings and recommendations to the Mayor and the city council

 

Section 3. Human Health, Environmental Research, Data Collection and Analysis.

(1)     Disproportionate Impact - to the extent permitted by other applicable law, including section 552a of title 5, United States Code, popularly known as the Privacy Act of 1974, the Commissioner of the New York Department of Environmental Protection, or the head of such other city agency as the Mayor may direct, shall collect, maintain, and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or

income. to the extent practical and appropriate, city agencies shall use this information to determine whether their programs, policies, and activities have disproportionately high and adverse human health, environmental or economic effects on minority populations and low-income populations.

(2)     Information Related To Non-City Facilities - in connection with the development and implementation of agency strategies, the Commissioner, or the head of such other city agency as the Mayor may direct, shall collect, maintain, and analyze information on the race, national origin, and income level, and other readily accessible and appropriate information, for areas surrounding facilities or sites expected to have a substantial environmental, human health, or economic effect on the surrounding populations, if such facilities or sites become the subject of a substantial city environmental, administrative or judicial action.

(3)     Impact From City Facilities - The Commissioner, or the head of such other city agency as the Mayor may direct, shall collect, maintain, and analyze information on the race, national origin, and

income level, and other readily accessible and appropriate information, for areas surrounding city facilities that are—

                                  (a)       Subject to the reporting requirements under the federal Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001 et seq.) as mandated in executive order no. 12856; and

                                  (b)       Expected to have a substantial environmental, human health, or economic effect on surrounding populations.

                                  (c)        Information sharing (1) in carrying out the responsibilities in this section, each city agency, to the extent practicable and appropriate, shall share information and eliminate

unnecessary duplication of efforts through the use of existing data systems and cooperative agreements among city agencies and with community boards. (2) Except as prohibited by other

applicable law, information collected or maintained pursuant to this section shall be made available to the public.

 

(4) Public Comment - City agencies shall provide minority populations and low-income populations the opportunity to participate in the development, design, and conduct of activities undertaken pursuant to this section.

Section 4. Purposes and Policies

1. To provide a citizen lawsuit provision to allow potential victims of environmental race discrimination   to enforce the Environmental Justice Act (EJA) and the regulations promulgated thereunder.

2. To provide a citizen endorsement provision to allow potential beneficiaries of nonpolluting economic development to enforce the EJA and the regulations promulgated thereunder.

3. To establish the criteria for determining potential violations and endorsements based on comparative community health statistics, comparative community pollution sources and comparative   community economic development.

4. To address: a) acts of discrimination, b) existing comparative community health, c) existing comparative community pollution sources and d) existing comparative economic analyses and planned economic development.

5. To direct, accept and investigate all community complaints and recommendations related to development projects, whether filed before or after issuance of construction and operating permits.

6. To empower citizens and DEP at the request of citizens, to obtain injunctions to prevent construction and operation of discriminatory polluting facilities and operations that violate the EJA regulations.

7. To empower citizens, and DEP at the request of citizens, to endorse the construction and operation of nondiscriminatory, nonpolluting facilities and operations that do not violate EJA regulations.

8. To provide a definitive permitting process regarding demographics for citizens, developers, government agencies and investors.

9. To direct the DEP to develop EJA regulations.

10. To identify those areas with the largest releases of toxic chemicals to the air, land, water, and workplace.

11. To identify those areas that are subject to the most severe loadings of toxic chemicals, through  all media.

12. To require the collection of data on environmental health effects so that impacts on different individuals or groups can be understood.

 

13. To assess the health effects that may be caused by emissions in those areas of highest environmental impact.

14. To ensure that groups or individuals residing within high environmental impact areas have the opportunity and the resources to participate in the technical process, which will determine the possible existence of adverse health impacts.

15. To identify those activities in high environmental impact areas found to have significant adverse impacts on human health.

16. To incorporate environmental equity considerations into planning and implementation of all city environmental programs and statutes.

17.  To require that actions be taken by authorized city agencies to curtail those activities found to  have significant adverse impacts on human health in those areas of highest impact.

18. To ensure that significant adverse health impacts that may be associated with environmental pollution in New York City are not distributed inequitably.

19. To focus city agency attention on the environmental and human health conditions in minority and low-income communities.

20. To ensure that all city agencies develop practices that promote environmental justice;

21. To increase cooperation and coordination among city agencies as they seek to achieve environmental justice.

22. To provide minority and low-income communities greater access to public information and opportunity for participation in decision making affecting human health and the environment.

23. To mitigate the inequitable distribution of the burdens and benefits of city programs having significant impact on human health and the environment. 

24. To hold city agencies accountable for the effects of their projects and programs on all communities.

Section 5. Identification of Affected and Nonaffected Areas

(1)       Determination of impacted and nonimpacted areas - Within six months after the date of enactment, the Commissioner in consultation with the New York City Department of Health, shall determine the most appropriate designation of health-related affected and nonaffected areas, either census blocks, census tracks, or other appropriate geographic unit. The Commissioner shall determine the most appropriate designation of environmentally Affected and Nonaffected areas, census blocks, census tracks, or other appropriate geographic unit. The Commissioner, in consultation with the New York City Department of City Planning, New York City Economic Development Corporation, Department of Business Services and Office of The Corporation Counsel, shall determine the most appropriate designation of economically Affected and Nonaffected areas, either census blocks, census tracks, neighborhoods, communities, or other appropriate geographic unit.

(2)       Publication of List - Within twelve months after the date of enactment of this act, the Commissioner shall publish a list, in rank order, of the total demographic of illnesses, weight of toxic chemicals released in each borough and level of economic development for the established

geographic unit in New York City during the most recent five-year period for which data are available. if less than five years of data are available. The Commissioner shall use available data until further information is reported.

(3)      Compilation of List - The Commissioner shall consider and utilize all appropriate and available data compiled pursuant to any health, environmental or economic regulatory authority and other sources, including available data on the presence of lead-based paint and toxic chemicals from mobile vehicles. For each appropriate geographic unit the Commissioner shall calculate and compile in a database—

                      (1) The total weight of toxic chemicals released into the ambient environment;

                      (2) The total weight of toxic chemicals released into each environmental media (air, water, land, workplace); and

                      (3) The total weight of each toxic chemical released into the ambient environment, and into each environmental media (air, water, land, and workplace); and whenever possible shall adjust the estimates to account for the severity of health issues, toxicity of the toxic chemicals and level of economic development.

                      (4) Within six months after the date of enactment the Commissioner shall review the methodology used to compile and summarize information collected under Section 313 of the Emergency Planning and Community Right-To-Know Act, and publish for public comment any proposed changes to the methodology necessary to calculate and compile the city information required in paragraph (1).

                      (5) The Commissioner shall revise and republish the list described in subsections (3) of this section by the date that is five years after the date of initial publication, and not less frequently than every five years thereafter, using data compiled during the preceding five-year period.

                      (6) Affected and nonaffected areas- (1) within twelve months after the date of enactment, and every five years thereafter, the Commissioner shall publish a list of the geographic unit with the highest and lowest total illnesses, toxic chemical releases and economic development.

Section 6. Petitions Relating To Environmentally Disadvantaged and Advantaged Communities.

 

(1)       Right To Petition - Any citizen residing in any borough in New York City in which a new

facility for the management of solid waste (including a new facility for the management of hazardous waste) is proposed to be constructed in an environmentally disadvantaged community may submit a petition to the appropriate entity to prevent the proposed facility from being issued a permit to be constructed or to operate in that community. A petition under paragraph (1) shall be submitted in accordance with the following subparagraphs:

                      (a) In the case of a facility for the management of hazardous waste, the petition shall be submitted to the Commissioner.

                      (b) In the case of a facility for the management of municipal solid waste, the petition shall be submitted to the Commissioner or, in appropriate cases, as determined under regulations implementing this section, to the New York City Department of Sanitation.

The DEP or other authorized agency shall disapprove the petition if it is established that —

                      (a) The proposed facility will be located in a healthy, environmentally clean or economically advantaged community (Nonaffected); and

                      (b) The proposed facility will not adversely affect the human health of such community;                                     

The DEP or other authorized agency shall disapprove the petition if the proponent(s) of the proposed facility establishes that –

                      (a) There is no alternative location within the state for the proposed facility that poses fewer risks to human health and the environment than the proposed facility (according to standards for comparing the degree of risk to human health and the environment promulgated in regulations by the Commissioner for purposes of this section); and

                      (b) The proposed facility—

                                  (i) Will not release contaminants; or

                                  (ii) Will not engage in any activity that is likely to increase the cumulative impact of contaminants on any residents of the environmentally disadvantaged community; and

                                  (iii) The project represents clear economic benefit to the community.   

If more than one petition relating to the same facility is submitted, the petitions may be consolidated by the appropriate official to promote the efficient resolution and disposition of the petitions.

 

(2) The term `Environmentally Disadvantaged Community' means an area within 2 miles of the borders of a site on which a facility for the management of solid waste (including a facility for the management of hazardous waste) is proposed to be constructed and in which both of the

following conditions are met, using the most recent data from the Bureau  of the Census:

                                  (a) The percentage of the population consisting of all individuals who are of African, Hispanic, Asian, Native American Indian, Pacific Island, or Native Alaskan ancestry is greater than either—

                                              (i) The percentage of the population in the borough of all such individuals, or

                                              (ii) The percentage of the population in the community of all such individuals; or

                                  (b) Twenty percent or more of the population consists of individuals who are living at or below the poverty line, or the area has a per capita income of 80 percent or less of the national average for the most recent 12-month period for which statistics are available.

                                  (c) The area contains one or more of the following:

                                              (i) A facility for the management of hazardous waste that is in operation.

                        (ii) A facility for the management of hazardous waste that is no longer in operation but that formerly accepted hazardous waste.

        (iii) A site at which a release or threatened release of hazardous substances (within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of1980) has occurred.

        (iv)  A facility for the management of municipal solid waste.

                        (v) A facility whose owner or operator is required to submit a toxic chemical release form under section 313 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 11023), if the releases reported on such form are likely to adversely affect the human health of the community or portion of the community.

(3) The term `Management', when used in connection with solid waste (including hazardous waste), means treatment, storage, disposal, combustion, recycling, or other handling of solid waste, but does not include any activities that take place in a materials recovery facility or any other facility that prepares, transfers, or utilizes nonhazardous recyclable materials for purposes other than energy recovery.                 

 

 Section 7. Study.

Within 24 months after the enactment of this act, the Commissioner, in consultation with the Department of Sanitation, Department of Health, Department of Transportation, Metro Transit Authority (MTA), Department of Planning, New York City Economic Development Corporation and Department of Business Services shall determine the most appropriate designation of Affected and Nonaffected areas, either census blocks, census tracks, neighborhoods, communities, or other appropriate geographic unit. The Commissioner shall determine the most appropriate designation of environmentally Affected and Nonaffected areas, census blocks, census tracks, neighborhoods, communities, or other appropriate geographic unit. The Commissioner in consultation with the New York City Economic Development Corporation and the Department of Business Services shall determine the most appropriate designation of economically Affected and Nonaffected areas, either census blocks, census tracks, neighborhoods, communities, or other appropriate geographic unit shall issue for public comment a report identifying the nature and extent, if any, of acute and chronic impacts on human health, the environment or economy in affected areas as compared to less affected areas. such impacts shall include but not be limited to cancer, birth deformities, infant mortality rates, respiratory diseases, air, water, land retail, institutional,  commercial and industrial issues. the report shall seek to—

                      (1) Isolate the impacts of environmental pollution;

                      (2) Segregate the effects of other factors such as health care availability or substance abuse or diet;

                      (3) Rank the relative risks posed by the toxic chemicals present in affected areas and by the varied sources of toxic chemicals, both individually and cumulatively;

                      (4) Take into account the need to remedy the impacts of pollution in high population density areas;

                      (5) Evaluate the levels below which release of toxic chemicals, either individually or cumulatively, must be reduced to avoid adverse impacts on human health; and

                      (6) Determine the impacts of uncontrolled releases;

            (7) Determine the economic impacts in the area. As a result of the report in communities where the Commissioner has determined that adverse health, environment or economic impacts exist DEP shall also make this information readily available to members of the community by providing information directly to the affected communities in the affected areas about the release of toxic chemicals, the potential effects of such exposure and the economic impacts.

Section 8. Moratorium.

If the report finds significant adverse impacts of environmental pollution on human health, environment or economy in an Affected Area, there shall be a moratorium on the siting or permitting of any new toxic chemical facility in any Affected Area shown to emit toxic chemicals in quantities found to cause significant adverse impacts on human health, such area shall be designated as a protected area. A new toxic chemical facility may be cited or permitted in such an affected area during this period only if—

                      (1) The need for the activity is approved by appropriate governing entity;

                      (2) The owner or operator of the facility demonstrates to DEP that the facility will develop a plan and maintain a comprehensive pollution prevention program; and

                      (3) The facility demonstrates to the appropriate governing entity that it will minimize uncontrolled releases into the environment.  The moratorium shall continue in effect in such a protected area until the Commissioner determines, upon petition of any interested party, that the

health-based levels have been attained at the Affected Area.

Section 9.  Endorsement.

If the report does not find significant adverse impacts of environmental pollution on human health in a proposed area, and if a petitioner requests an advance designation for a proposed area, there shall be a DEP endorsement on the siting or permitting of any new facility. A new facility may still be placed on the moratorium list if—

                      (1) The activity, due to its nature, and as determined by DEP, could negatively affect health at some future date; the endorsement shall continue in effect in such an area until the

Commissioner determines, upon petition of any interested party, that the health-based levels have not been maintained at the area due to the activities of the covered facility.

 Section 10. Interagency Environmental Justice Working Group.

(1) Creation and composition- there is hereby established the interagency working group on environmental justice, comprising the heads of the following executive agencies and offices, or their designees:

                      (1) Department of Environmental Protection

                      (2) Department of Planning

                      (3) Department of Sanitation

                      (4) Department of Transportation

                      (5) New York City Economic Development Corporation

                      (6) The Council on the Environment of New York City

                      (7) Administration for Children’s Services

                      (8) Community Justice Exchange

                      (9) Department of Business Services

                      (10) Office of the Corporation Counsel

                      (11) Metro Transit Authority

                      (12) Any other official of the city that the Mayor may designate.

 Functions - The working group shall—

                                  (a) Provide guidance to city agencies on criteria for identifying disproportionately high and adverse human health or environmental effects on minority populations and low-income populations.

                                  (b) Coordinate with, provide guidance to, and serve as a learning house for, each city agency as it develops or revises an environmental justice strategy as required by this act, in order to ensure that the administration, interpretation and enforcement of programs, activities, and policies are undertaken in a consistent manner.

                                  (c) Assist in coordinating research by, and stimulating cooperation among, the DEP, the Department of Health, Department of Planning, Department of Sanitation, Department of Transportation and other city agencies conducting research or other human health and environmental protection activities;

                                  (d) Assist in coordinating data collection, maintenance, and analysis required by this act;

                                  (e) Examine existing data and studies on environmental justice;

                                  (f) Hold public meetings and otherwise solicit public participation and consider complaints;

                                  (g) Develop interagency model projects on environmental justice that evidence cooperation among city agencies; and

(2)  Public Participation - The working group shall—

                                  (a) Hold public meetings and otherwise solicit public participation, as appropriate, for the purpose of fact-finding with regard to implementation of this act, and prepare for public review a summary of the comments and recommendations provided; and

                                  (b) Receive, consider, and in appropriate instances conduct inquiries concerning complaints regarding environmental justice and the implementation of this act by city agencies.

 

(3)     Annual Reports-

                            (a) Each fiscal year following enactment of this act, the working group shall submit to the Mayor, a report of the final environmental justice strategies of this act and annual progress made in implementing those strategies.

                                  (b) The Mayor shall transmit to the Speaker of the New York City Council a copy of each report submitted to the Mayor.

Section 11. City Agency Strategies.

Agency-wide strategies - Each city agency shall develop an agency wide environmental justice strategy that identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.

Revisions - Each strategy developed shall identify programs, policies, planning, and public participation processes, rulemaking, and enforcement activities related to human health or the

environment that should be revised to—

                      (1) Promote enforcement of all health and environmental statutes in areas with minority populations or low-income populations;

                      (2) Ensure greater public participation;

                      (3) Improve research and data collection relating to the health of and environment of minority populations and low-income populations; and

                      (4) Identify differential patterns of use of natural resources among minority populations and low-income populations.

(5)Timetables - each strategy developed shall include, where appropriate, a timetable for undertaking revisions identified.

This local law shall take effect 30 days after its enactment.

 

 



[1] CP-29. http://www.dec.ny.gov/regulations/36951.html

[2] Written Comments of Norris McDonald Submitted To DEC on the Final Report of the New York State DEC Disproportionate Adverse Environmental Impact Analysis Work Group (August 2004), January 3, 2005

[3] DEC, Part 231, New Source Review.

[4] "Mayor Bloomberg Delivers PlaNYC: A Greener, Greater New York," April 22, 2007, http://www.mikebloomberg.com/en/issues/environment_sustainability/mayor_michael_bloomberg_delivers_planyc_a_greener_greater_new_york 

[5] "Members Announce Asthma Task Force," May 6, 2003, The Council of the City of New York, http://www.nyccouncil.info/pdf_files/newswire/asthma.pdf

[6] Death, Disease & Dirty Power: Mortality and Health Damage Due to Air Pollution from Power Plants, Clean Air Task Froce (October 2000) (Exhibit C)(available at http://cta.policy.net/fact/mortality/mortalitylowres.pdf).

[7] Clear the Air: People of Color in Non-Attainment Counties (available at http://cta.policy.net/fact/injustice/injustice_non-attainment.pdf).

[8] All population data compiled from 2,000 U.S. Census.

[9] Clear the Air: People Color in Non-Attainment Counties.