ENV-03-12-00010-P Analysis of Environmental Justice Issues Associated with the Siting of Major Electric Generating Facilities

1/18/12 N.Y. St. Reg. ENV-03-12-00010-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 3

January 18, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. ENV-03-12-00010-P

Analysis of Environmental Justice Issues Associated with the Siting of Major Electric Generating Facilities

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 487 to Title 6 NYCRR.

Statutory authority:

Public Service Law, art. 10, and sections 164(1)(f), (g) and (h); and L. 2011, ch. 388

Subject:

Analysis of environmental justice issues associated with the siting of major electric generating facilities.

Purpose:

To promulgate regulations for the analysis of environmental justice issues associated with the siting of a major electric generating facility.

Public hearing(s) will be held at:

3:00 p.m., March 5, 2012 at Department of Environmental Conservation, 625 Broadway, Public Assembly Rm. 129, Albany, NY; 3:00 p.m., March 6, 2012 at Department of Public Service, 90 Church St., 4th Fl., New York, NY; 3:00 p.m., March 8, 2012 at Department of Environmental Conservation, Region 9 Hearing Rm., 270 Michigan Ave., Buffalo, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):

Section 487.1 states the purpose of Part 487 is to establish a regulatory framework for undertaking an EJ analysis associated with the siting of a major electric generating facility in New York State pursuant to Article 10 of the Public Service Law. The regulations are intended to enhance public participation and review of environmental impacts of proposed major electric generating facilities upon EJ communities and reduce disproportionate environmental impacts in overburdened communities. They are not intended to, nor shall they be construed to create any right to judicial review involving the compliance or noncompliance of any person with Part 487.

Section 487.2 states that Part 487 applies to all persons seeking a Certificate of Environmental Compatibility and Public Need pursuant to Public Service Law Article 10.

Section 487.3 sets forth specific definitions that apply to Part 487. The substantive definitions are:

'Adjacent communities' means the geographic area contiguous to and surrounding the Impact Study Area of a radius equal to the radius of the Impact Study Area, up to a maximum one mile radius. If the Impact Study Area is a one-half mile radius, the "adjacent communities" shall be represented by the next one-half mile radius around the Impact Study Area; if the Impact Study Area is a two mile radius, the "adjacent communities" shall be represented by the next one mile radius around the Impact Study Area.

'Comparison Area' means a geographic area used to analyze and compare physical conditions and impacts against the Impact Study Area.

'Environmental justice area' or 'EJ area' means a minority or low-income community that may bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.

'Environmental Setting' means the descriptive information that portrays or captures various aspects of the existing environmental condition within an area including existing burdens relating to the environment and public health.

'Impact Study Area' means the geographic area of at least a one-half mile radius around the location of a proposed major electric generating facility in which the population is likely to be affected by at least one potentially significant adverse environmental impact resulting from the construction and/or operation of the facility that is different in type, scope, or magnitude compared to the population located in the broader geographic area surrounding the facility.

'Low-income community' means 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; except that the percentage population and income threshold may be revised to reflect updated demographic data.

'Minority community' means a census block group, or contiguous area with multiple census block groups, where the minority population is equal to or greater than 51.1% in an urban area or 33.8% in a rural area; except that the specific percentages may be revised to reflect updated demographic data.

'Minority population' means a population that is identified or recognized by the U.S. Census Bureau as Hispanic, African-American or Black, Asian and Pacific Islander, or American Indian.

'Pre-application' or 'pre-application process' means the period or procedures pursuant to Public Service Law section 163 during which an applicant must file with the Board a preliminary scoping statement; intervenor funding is disbursed for early public involvement; there is an opportunity for interested persons to comment on the preliminary scoping statement; and interested persons may enter into stipulations.

(v) 'Reasonably available' means obtainable from existing data, studies and records, without requiring collection of new data.

Section 487.4 establishes that the Impact Study Area for the proposed facility is a minimum of a one-half mile radius around the proposed location of the facility; but can be increased based on site-specific factors.

Section 487.5 requires the applicant to determine whether the Impact Study Area contains one or more EJ areas by identifying if there is a minority or low-income community within the Impact Study Area. If no area meeting the definition of minority or low-income community is present within the Impact Study Area, an EJ area is present if: (1) a census block group or contiguous area with multiple census block groups has a minority or low-income population that is above 85% of the stated thresholds for constituting a minority or low-income community, and (2) reasonably available air quality data and health outcome data reveals that the Impact Study Area may bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies, when compared to the county as a whole, or if the Impact Study Area is in the City of New York, when compared to the city as a whole. If an EJ area is present the applicant must undertake a full EJ analysis.

Section 487.6 sets forth the general requirements and procedures for completing an applicant's EJ analysis. This section outlines the information which an applicant must include in its preliminary scoping statement if no EJ area is present within the Impact Study Area and the more detailed information that must be included if an EJ area is present. It requires that the applicant initiate its EJ analysis early in the pre-application process to facilitate an expeditious pre-application process and enable early and meaningful public involvement. This section includes an outline of the information that the applicant must include in its final EJ analysis submitted with its application. The applicant's final EJ analysis must be clearly and concisely written in plain language so that it can be read and understood by the public and include sufficient detail about the nature and magnitude of any significant and adverse disproportionate environmental impacts of the proposed facility to enable the New York State Board on Electric Generation Siting and the Environment to make explicit findings related to EJ issues.

Section 487.7 explains how an applicant that is required to complete a full EJ analysis and whose proposed facility is an air emission source, must conduct its required cumulative impact analysis of air quality. The analysis must be in accordance with an air modeling protocol approved by the Department and shall consider the impacts of the proposed facility with respect to air pollutants on ambient air quality within a circular area extending from the location of the proposed facility to the larger of the following distances, to be referred to as the EJ Air Impact Area (EJAIA): (1) one-half mile; (2) the Impact Study Area; or (3) the distance to the furthest receptor location of maximum impact for any pollutants modeled for the proposed facility. The analysis shall include all criteria air pollutants emitted from the proposed facility, except that ozone precursor emissions will be addressed pursuant to the provisions of 6 NYCRR Part 231; mercury, as applicable, and to the extent that emissions data are reasonably available and acceptable to the Department; and a limited set of non-criteria pollutants selected from those identified in the applicant's preliminary scoping statement based on which non-criteria pollutants have projected concentrations that may exceed quantified public health-based air criteria, as determined by the Department in consultation with the Department of Health, and to the extent that emissions data are reasonably available and acceptable to the Department. The sources to be explicitly modeled in the analysis shall include the proposed facility and: (1) any additional facility for which an application has been submitted and determined to be in compliance with PSL section 164 and which is located in the EJAIA plus 6 miles, (2) any major stationary source located in the EJAIA plus 6 miles that has not yet commenced operations and which has received a permit from the Department at least sixty days prior to the date of the applicant's filing of an application pursuant to PSL section 164, (3) any other permitted stationary source located within the EJAIA that emits an air pollutant in an amount at or above the significant project thresholds, and (4) on a site-specific basis, at the Department's discretion, any air emission source which is located contiguous to the proposed facility and for which the necessary emissions data is reasonably available and acceptable to the Department.

Section 487.8 defines the Comparison Areas against which the Impact Study Area is to be compared and contrasted as (1) the county in which the facility is proposed to be located, and (2) adjacent communities. In addition, if the proposed facility is located in New York City, the city as a whole must be used as a third Comparison Area.

Section 487.9 explains how the applicant must prepare the comprehensive demographic, economic and physical descriptions of the Impact Study Area and the Comparison Areas, which must accurately represent the community character and environmental setting of each area. The comprehensive descriptions shall include reasonably available data on population, racial and ethnic characteristics, income levels, and physical conditions, including public health; air quality, including National-Scale Air Toxics Assessment data; the number and concentration of specific industrial facilities or sites; open space; historic and cultural resources and community or neighborhood character, including existing patterns of population concentration, distribution, or growth; visual and aesthetic resources; ambient sound level; and vehicle and pedestrian traffic. The applicant shall also identify and evaluate the potential significant adverse environmental and public health impacts of the proposed facility on the Impact Study Area, during both its construction and operation, incorporating results from the applicant's cumulative impact analysis of air quality pursuant to Section 487.7 and its evaluation of expected environmental and public health impacts of the facility required pursuant to paragraph (b) of subdivision 1 of Public Service Law section 164 and add those impacts to the existing physical conditions in the Impact Study Area to obtain a comprehensive description of the physical conditions of the Impact Study Area that would result from the construction and operation of the proposed facility.

Section 487.10 explains how an applicant must compare and contrast the physical conditions in the Impact Study Area, including the impacts from construction and operation of the proposed facility, to the physical conditions in each of the Comparison Areas to evaluate whether any significant and adverse disproportionate environmental impacts in the Impact Study Area may result from the construction and/or operation of the proposed facility. In the event that the applicant's evaluation indicates that the facility will result in or contribute to any significant and adverse disproportionate environmental impacts in the Impact Study Area, the applicant shall identify measures that it will take to avoid, offset or minimize each impact and 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 for the duration that the Certificate is issued. 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.

Section 487.11 requires the applicant to prepare a Statement of Environmental Justice Issues, summarizing its final EJ analysis, including the evaluation of any significant and adverse disproportionate environmental impacts in the Impact Study Area. The statement must provide a detailed explanation of the rationale for any conclusions made, identify the individual studies and investigations relied upon in conducting the EJ analysis, and articulate why any measure to avoid, minimize, or offset any impact will remedy in whole or in part any identified significant and adverse disproportionate impact, including how the measure can be verified and its cost.

Text of proposed rule and any required statements and analyses may be obtained from:

Melvin Norris, NYSDEC Office of Environmental Justice, 625 Broadway, Albany, NY 12233-1500, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

March 15, 2012.

Additional matter required by statute:

Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, Negative Declaration and Coastal Assessment Form have been prepared and are on file. This rule will be submitted to the State Environmental Board.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Summary of Regulatory Impact Statement

1. Statutory Authority:

Public Service Law (PSL) Article 10 (Article 10) requires the Department to promulgate regulations for the analysis of environmental justice issues associated with siting a major electric generating facility (EJ regulations). Paragraphs (f), (g), and (h) of PSL section 164(1) set forth specific requirements an applicant must include in its EJ analysis in accordance with the EJ regulations.

2. Legislative Objectives:

Article 10 is intended to streamline the siting process for energy sources having a capacity 25 megawatts or more, and to improve public participation in power plant siting decisions. Article 10 is also intended to reduce disproportionate environmental impacts in overburdened communities.

Article 10 requires that the Department's EJ regulations include the requirements that an applicant analyze cumulative impacts to air quality; prepare a comprehensive demographic, economic and physical description of the community in which the facility is located, compared and contrasted with the county and adjacent communities; and evaluate any significant and adverse disproportionate environmental impacts of the proposed facility during its construction and operation. Article 10 delegates to the Department to establish in EJ regulations how an applicant must comply with these requirements.

These proposed regulations are intended to ameliorate certain negative impacts of power plants to be located in overburdened EJ communities through an augmented review (i) of the existing environmental conditions of the community in which the proposed facility is to be located, and (ii) the expected environmental and public health impacts of the proposed facility on that community. The Department is applying the plain language of the statutory provisions, where applicable, but is proposing additional requirements as necessary to ensure the applicant undertakes a meaningful EJ analysis, including a thorough evaluation of any significant and adverse disproportionate environmental impacts, to enable the Board to make its findings on EJ issues.

Section 487.1 states the purpose of the EJ regulations is to establish a regulatory framework for an EJ analysis to enhance public participation and review of environmental and public health impacts upon EJ communities and reduce disproportionate environmental impacts in overburdened communities. They are not intended to create any right to judicial review involving the compliance or noncompliance of any person with the regulations.

Section 487.2 confirms the regulations apply only to persons seeking a Certificate authorizing the construction of a major electric generating facility pursuant to Article 10.

Section 487.3 sets forth the applicable definitions, many of which are used in Article 10 or the Department's Commissioner Policy 29, Environmental Justice and Permitting (CP-29). The definitions for "minority community" and "low-income community" may be revised prior to adoption of these regulations because updated demographic data for New York are not yet available.

Section 487.4 requires the applicant to define the Impact Study Area, or area most likely to be affected by the proposed facility's adverse impacts. It will encompass at least a one-half mile radius around the location of the proposed facility, and may be increased by the applicant based on site-specific factors to capture the area that may be most affected by the facility's significant adverse impacts.

Section 487.5 instructs the applicant to determine if an EJ area is present within the Impact Study Area. If an EJ area is present, the applicant must undertake a full EJ analysis. This threshold inquiry is consistent with the intent of Article 10's EJ provisions and CP-29. The applicant must also complete a full EJ analysis for any reasonable and available alternate location it identifies if that location's Impact Study Area contains an EJ area.

Section 487.6 sets forth the general requirements and procedures for completing an EJ analysis. The applicant must initiate its EJ analysis as early as practicable during the pre-application process to facilitate an expeditious process and assure early and meaningful public involvement. The EJ analysis must be written clearly and concisely in plain English and contain all relevant and material facts in sufficient detail to enable the Board to make explicit findings related to EJ issues.

Section 487.7 explains how to perform the cumulative impact analysis of air quality required pursuant to PSL section 164(1)(g). This analysis is geared to assessing EJ-specific impacts and is only required if the proposed facility is likely to affect an EJ area. It is required in addition to any other air quality analysis that may be required for the proposed facility under applicable regulations.

Section 487.8 establishes the "Comparison Areas," against which the Impact Study Area is to be compared and contrasted, as the county in which the facility is proposed to be located and the adjacent communities. If the facility is proposed to be located in one of the five boroughs of New York City, a third Comparison Area will be the entire city.

Section 487.9 describes how the applicant must prepare the comprehensive demographic, economic and physical descriptions of the Impact Study Area and Comparison Areas pursuant to PSL section 164(1)(h). The descriptions will include reasonably available information on population, racial and ethnic characteristics, income levels, open space, and public health, including publicly available data on asthma and cancer. Consistent with the language in paragraph (h) that the descriptions be comprehensive, they must include information beyond the list of minimum requirements, particularly with respect to physical conditions. The applicant must identify and evaluate the facility-related impacts in the Impact Study Area and add them to existing physical conditions to obtain a comprehensive description of the Impact Study Area that would result from the construction and operation of the proposed facility.

Section 487.10 requires the applicant to compare and contrast the physical conditions of the Impact Study, including the impacts from construction and operation of the proposed facility, to the physical conditions in each Comparison Area to evaluate whether the proposed facility will result in or contribute to any significant and adverse disproportionate environmental impacts in the Impact Study Area, as required pursuant to PSL section 164(1)(h) and (f). If the applicant's evaluation indicates the facility would result in a significant and adverse disproportionate environmental impact, the applicant must discuss any measures that it will take to avoid, offset or minimize the impact to the maximum extent practicable and the effect of those measures.

Section 487.11 requires the applicant to prepare a Statement of Environmental Justice Issues that summarizes the applicant's final EJ analysis.

3. Needs and Benefits:

These EJ regulations are being proposed to fulfill a statutory obligation of the Department; therefore, there is a need to promulgate these regulations.

The intent of these regulations is to promote the fair treatment and meaningful involvement of all people in facility siting by requiring a heightened analysis of environmental impacts and additional protections against significant and adverse disproportionate environmental impacts in low-income and/or minority EJ areas, which have historically been overburdened by the adverse environmental and public health impacts of industrial facilities.

Accordingly, the proposed regulations require, in EJ areas only, a heightened analysis of environmental impacts and additional protections against significant and adverse disproportionate environmental impacts. In this manner, the proposed regulations - like CP-29 -- provide additional protections to EJ areas with the ultimate goal of equal environmental treatment of all communities.

This approach is also consistent with the 2009 New York State Energy Plan, which specifically addresses EJ in an Environmental Justice Issue Brief. The EJ Issue Brief recognizes that low-income communities and minority communities have historically been overburdened as a result of air pollution from energy-generating facilities, small stationary sources, and dense traffic and states that "[t]o reduce the risk of overburdening communities of color and low income communities in the future, siting procedures should provide for thorough environmental review and effective participation of concerned stakeholders in the decision-making processes."

These regulations are consistent with recommendations of New York State's Environmental Justice Interagency Task Force, June 10, 2009 report of Draft Recommendations. The first recommendation of the Task Force is to provide for increased community representation and access to decision making processes, recognizing that "[a] basic tenet of environmental justice is that low-income communities and minority communities have often been left out of government decision making as a result of a historical lack of access to government."

These regulations will result in a broader and more detailed evaluation of environmental and public health impacts of the proposed facility that will benefit the community as a whole in addition to any affected EJ area, and will facilitate the applicant's consultation with the public during the Article 10 proceedings. The applicant's EJ analysis will inform the Board's finding of whether the applicant has avoided, offset, or minimized any significant and adverse disproportionate environmental impact to the maximum extent practicable, which is mandatory before the Board may grant a Certificate.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule. The Department estimates that costs to the industry of completing an EJ analysis will be incremental because of the large costs already associated with complying with the Clean Air Act, Environmental Conservation Law Article 19, and other requirements of Article 10, and because persons seeking permits for power plants in the absence of Article 10 have been addressing EJ concerns pursuant to the State Environmental Quality Review Act and CP-29. The cost to the applicant of conducting the analysis of cumulative impacts on air quality is estimated to range from $0 to $30,000 depending on a number of factors. The Department is unable to estimate the specific costs of any other elements of the applicant's EJ analysis. If the Impact Study Area does not contain an EJ area, the applicant's cost would be less and limited to the costs associated with defining the Impact Study Area and determining that no EJ area is present. The cost of the EJ analysis would be minimal in comparison to the total cost of siting a major electric generating facility.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule. The majority of costs for the Department, the Department of Public Service (DPS), and the Department of Health are expected to be personal service costs, particularly the need for staff to participate in the Article 10 proceedings. There will be incremental costs associated with these EJ regulations.

These regulations will not impose any costs on local governments, unless a local government itself is the applicant for a Certificate pursuant to Article 10. In this case, costs similar to those discussed for regulated parties will apply.

5. Local Government Mandates:

These regulations will not impose any program, service, duty, or responsibility upon, or mandate the expenditure of funds by, any sector of local government.

6. Paperwork:

There are no specific paperwork requirements in these regulations except for the Statement of Environmental Justice Issues summarizing the applicant's final EJ analysis and justifying its conclusions.

7. Duplication:

There are no relevant rules, statutes, or other legal requirements of the State or federal government that duplicate, overlap, or conflict with these regulations. Likewise, there are no duplicative relevant federal requirements.

8. Alternative Approaches:

The Department is statutorily required to promulgate these EJ regulations; therefore, a "no action" approach is not available. The Department considered the "Final Report of the New York State Department of Environmental Conservation Disproportionate Adverse Environmental Impact Analysis Work Group" and sought and considered input received from stakeholders during the development of these regulations. The Department also reviewed the efforts of EPA and other states, particularly California.

9. Federal Standard:

There is no federal regulatory framework for analyzing EJ issues applicable to the siting of power plants; therefore, these regulations do not exceed any minimum standards of the federal government.

10. Compliance Schedule:

There is no period of time required to enable the industry to achieve compliance with these regulations. Regulated persons will need to comply as soon as the Board begins accepting preliminary scoping statements from persons seeking a Certificate pursuant to Article 10.

Regulatory Flexibility Analysis

1. Effect of Rule:

The Department of Environmental Conservation (Department) proposes new regulations in 6 NYCRR Part 487 to implement the requirement in the Power NY Act of 2011 (Chapter 388 of the Laws of 2011) that the Department promulgates rules and regulations for the analysis of environmental justice (EJ) issues (EJ regulations) within 12 months. These EJ regulations will not have any substantial adverse effects on small businesses and local governments.

These EJ regulations will apply only to persons seeking a Certificate of Environmental Compatibility and Public Need (Certificate) authorizing the construction of a major electric generating facility pursuant to Article 10 of the Public Service Law (PSL) (Article 10). For the most part, major electric generating facilities are large corporations; however, because Article 10 defines a "major electric generating facility" as an electric generating facility with a nameplate generating capacity of twenty-five thousand kilowatts (25 megawatts) or more, smaller businesses, particularly wind energy developers, will fall under the jurisdiction of Article 10 and subsequently these proposed regulations. Twenty-five megawatts of wind capacity is enough to supply at least 6,000 homes. The Department expects that a wind energy project with this capacity would not often, if ever, meet the definition of a small business because it is unlikely that a wind energy project in New York State would be independently owned and operated given the cost of constructing a wind plant of this size. According to the American Wind Energy Association, a national trade association representing the wind energy industry, a wind plant typically costs approximately $1,000 per kilowatt of installed capacity, so a 25 megawatt wind plant would cost more than $2 million.

As of Fall 2011, the Department knows of sixteen wind energy projects currently operating in New York State with a rated capacity of about 1,339.2 megawatts. These projects are located in Clinton, Erie, Franklin, Herkimer, Lewis, Madison, Steuben, and Wyoming counties. The Department is aware of approximately 30 wind projects that are under active review or have obtained permits but have not yet begun construction. Pursuant to PSL § 162(4)(d), Article 10 does not apply to projects for which an application for the applicable permit has already been made. Some of these projects that have applied for but not yet obtained permits may elect to become subject to the provisions of Article 10 pursuant to PSL § 162(5).

These EJ regulations will not directly affect any sector of local government, unless the local government itself will be the applicant for a Certificate authorizing the construction of a major electric generating facility. The number and type of local governments that may apply for a Certificate under Article 10 cannot be estimated. The Department is unaware of any local government wind projects being considered at this time. Any municipality in which a major electric generating facility is proposed to be located that is not an applicant for a Certificate will benefit from the public participation and intervenor funding provisions of Article 10 and these EJ regulations to the extent they result in an augmented review of environmental and health impacts of the proposed facility in that municipality. The number of local governments that will be affected by these EJ regulations as beneficiary of an augmented environmental review will be dependent on how many major electric generating facilities are proposed to be sited pursuant to Article 10 and how many will be proposed to be sited in an EJ area. The Department of Public Service (DPS) has estimated that approximately 6 to 8 facilities per year may be proposed for siting under Article 10, but this estimate is speculative.

2. Compliance Requirements:

The only persons required to comply with these EJ regulations will be those in the energy industry proposing to construct a 25 megawatt or more capacity major electric generating facility or to increase the capacity of an existing electric generating facility by 25 megawatts or more. These persons are generally well funded companies given the substantial costs of complying with the provisions of Article 10, including intervenor fees and obtaining necessary air and other permits from the Department. The additional EJ analyses and evaluations that a small business will need to undertake to comply with these regulations will not be significant in relation to the analyses and evaluations necessary to comply with the provisions of Article 10 (implemented through regulations being promulgated by DPS).

No sector of local government is required to undertake any affirmative acts to comply with these regulations unless the local government will be an applicant for a Certificate. The compliance requirements for a local government in this case would be the same as those for a small business.

3. Professional Services:

Any small business subject to these EJ regulations is likely to require professional services to comply with these regulations, which will not differ in type from the professional services needed to comply with Article 10. It is anticipated that the small business will use the same professional services that it employs to comply with the other requirements of Article 10. It is not anticipated that the costs to a small business for the professional services necessary to comply with these regulations will be significant in relation to the costs of complying with the other requirements of Article 10.

Local governments, except those that are applicants for a Certificate, are not required to take any affirmative acts to comply with these regulations; therefore, local governments will not have the need for professional services to comply with these regulations. A local government that is an applicant for a Certificate would have the same need for professional services as a small business to comply with these regulations. The municipality in which the facility is proposed to be located (except if the municipality is an applicant for a Certificate) is entitled to intervenor funding under Article 10 which may be used to obtain professional services to assist the municipality in participating in the Article 10 siting process, including review of an applicant's EJ analysis; however, these regulations do not require that a municipality participate.

4. Compliance Costs:

The costs to small businesses and local governments to comply with these EJ regulations if they apply are limited to the costs associated with any studies, analyses and evaluations required to support an EJ analysis as a required part of an application for a Certificate. There are no recurring costs to small businesses or local governments associated with these regulations. The costs associated with undertaking an EJ analysis are expected to be minimal in comparison to the costs associated with the other requirements of Article 10. There will be no costs to local governments that are not applicant for a Certificate.

5. Economic and Technological Feasibility:

There should be no economic or technological feasibility issues associated with compliance with these EJ regulations by small business or local governments. The analyses and evaluations required by these regulations do not differ significantly from the analyses and evaluations required to comply with the other requirements of Article 10.

6. Minimizing Adverse Impact:

These EJ regulations are not anticipated to have any adverse economic impact on small businesses or local governments that are required to comply with these regulations as they will not impose significant costs above and beyond those associated with meeting all of the other requirements of Article 10. These regulations do not include significant requirements beyond those that are expressly required by statute to be included in the EJ regulations pursuant to Article 10. Where additional requirements are included in these regulations they are limited to those that are necessary to ensure a complete and thorough evaluation of any significant and adverse disproportionate impacts as a result of the facility.

7. Small Business and Local Government Participation:

The Department participated in outreach to the regulated community while developing these regulations, including the solicitation of comments from the energy industry. The only small businesses that may be impacted by these regulations are wind energy developers. The Department met with the Alliance for Clean Energy New York, Inc. (ACE NY) to discuss how these regulations may impact wind energy projects in New York and presented its proposed regulatory approach at ACE NY's Fall Conference on October 26, 2011 and encouraged comments and suggestions from conference participants.

Rural Area Flexibility Analysis

1. Types and Estimated Numbers of Rural Areas:

The Department of Environmental Conservation (Department) proposes new regulations in 6 NYCRR Part 487 for the analysis of environmental justice (EJ) issues (EJ regulations). These regulations will apply statewide to persons seeking a Certificate of Environmental Compatibility and Public Need (Certificate) authorizing the construction of a major electric generating facility pursuant to Article 10 of the Public Service Law (PSL) (Article 10). A major electric generating facility is defined as an electric generating facility with a nameplate generating capacity of twenty-five thousand kilowatts (25 megawatts) or more. The Department anticipates that most of the major electric generating facilities that will be sited in rural areas will be wind energy projects. The Department knows of sixteen wind energy projects currently operating in New York State and they are located in Clinton, Erie, Franklin, Herkimer, Lewis, Madison, Steuben, and Wyoming counties. According to 2010 U.S. Census figures, all of these counties, except for portions of Erie County, are considered rural areas.

2. Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:

These EJ regulations do not include any reporting or recordkeeping requirements. The impact of these regulations upon a regulated energy developer will not be significantly different in a rural area than in an urban or suburban area. These regulations, for the most part, will affect large energy companies and the ability to comply with these regulations is not expected to be affected by the fact that a major electric generating facility is proposed to be located in a rural area. Similarly, the need for an applicant to contract for professional services is not expected to be affected by the fact that a facility is proposed to be located in a rural area. Applicants for a Certificate must comply with all of the requirements of Article 10 which will not differ for applicants proposing to locate a facility in a rural area. The additional requirements to comply with these EJ regulations are not significant when compared to the requirements of complying with the other requirements of Article 10. If the facility is proposed to be located in a rural area in which no EJ area is present, the requirements to comply with these regulations are substantially fewer.

3. Costs:

The cost to comply with these proposed EJ regulations in rural areas will not differ substantially from the costs of complying with these regulations in urban or suburban areas. These costs cannot be quantified at this time; however, the Department anticipates that the cost of complying with the EJ regulations will be insignificant in relation to the total costs of complying with the other requirements of Article 10. The costs of complying with these regulations are limited to the costs associated with any studies, analyses and evaluations required to support an EJ analysis as a required part of an application for a Certificate. If the facility is proposed to be located in a rural area in which no EJ area is present, the costs to comply with these regulations are substantially less. There are no recurring costs associated with these regulations.

4. Minimizing Adverse Impact:

The Department does not expect these proposed EJ regulations to have a negative impact on rural areas in the State as they will not impose significant costs above and beyond those associated with meeting all of the other requirements of Article 10.

5. Rural Area Participation:

The Department participated in outreach to the regulated community while developing these regulations, including the solicitation of comments from the energy industry. The energy developers that are most likely to locate facilities in rural areas are wind energy developers. The Department met with the Alliance for Clean Energy New York, Inc. (ACE NY) to discuss how these regulations may impact wind energy projects in New York and presented its proposed regulatory approach at ACE NY's Fall Conference on October 26, 2011 and encouraged comments and suggestions from conference participants.

Job Impact Statement

1. Nature of Impact:

The Department of Environmental Conservation (Department) proposes to add new regulations in 6 NYCRR Part 487 for the analysis of environmental justice (EJ) issues (EJ regulations). These regulations will apply statewide. The Department does not expect the proposed regulations to have a negative impact on jobs and employment opportunities in the State.

2. Categories and Numbers Affected:

These EJ regulations will not negatively affect employment opportunities and are not anticipated to create jobs.

3. Regions of Adverse Impact:

There are no regions of the State expected to be negatively impacted by these EJ regulations.

4. Minimizing Adverse Impact:

These EJ regulations are not expected to have an adverse impact on jobs and employment.

5. Self-Employment Opportunities:

Constructing a major electric generating facility requires significant capital. Therefore, companies directly impacted by these proposed regulations are not expected to involve many self-employment opportunities.