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

6/27/12 N.Y. St. Reg. ENV-03-12-00010-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 26

June 27, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

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

Filing No. 565

Filing Date. Jun. 12, 2012

Effective Date. s , 30 d

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 action:

Action taken:

Addition of Part 487 to Title 6 NYCRR.

Statutory authority:

Public Service Law, art. 10 and sections 164(1)(f), (g), (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 EJ issues associated with the siting of a major electric generating facility.

Substance of final rule:

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, except that in New York City adjacent communities shall be limited to a maximum one mile radius.

'Health outcomes' means counts and rates of health-related events in a population. Examples of health-related events are hospitalizations for diseases such as asthma or cardiovascular disease, births of infants with low birth weight, and new diagnoses of cancer.

'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.

'Reasonably available' means obtainable from existing data, studies and records, without requiring collection or development 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 must 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 75% of the stated thresholds for constituting a minority or low-income community, and (2) reasonably available air quality data, and health outcome data available to the public statewide on the zip code level, 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 additional 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 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 required to be 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 to the maximum extent practicable 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. 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 completely 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, to the maximum extent practicable, avoid, minimize or offset any identified significant and adverse disproportionate impact, including how the measure can be verified and its cost.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 487.3, 487.4(b), 487.5(c), 487.6(b), (c)(3), 487.7(c)(3), (e), (f), 487.8(b), 487.9(b)(4)(i), (c), (d)(3), 487.10 and 487.11.

Text of 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]

Additional matter required by statute:

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

Summary of Revised 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" include flexibility because updated demographic data for New York was just recently released and it is impossible to tell at this time how this information may impact the definitions.

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 must be increased by the applicant based on site-specific factors.

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 and stakeholder 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.

Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments, Rural Area Flexibility Analysis, and Job Impact Statement are not required as previously filed documents remain valid and complete and do not need to be revised to reflect the nonsubstantive changes made to the text of the regulations to address public comments.

Assessment of Public Comment

Comments received from January 18, 2012 through March 15, 2012

38 comments were submitted in response to the Department's proposed regulations, resulting in 189 distinct comments, although many were similar. This summary highlights the key issues raised and the Department's responses to those issues.

Minority/Low-income Thresholds (39): Many comments suggested the applicant should perform an EJ analysis for all overburdened communities, while some stated the applicant should perform an EJ analysis for all proposed facilities. Many comments stated that the thresholds may exclude some EJ communities, and if a "screen" is used there should be a mechanism to ensure EJ communities are not excluded. Other comments suggested the Department consider using health data to determine which communities to include. Several comments related to use of outdated Census data, and some stated the 2010 Census data is flawed, particularly for poverty data. A few comments recommended the regulations limit those communities for which an EJ analysis is required and questioned the need for Section 487.5(b) or (c). The Department disagreed that an EJ analysis should be required for all communities as inconsistent with the intent to require an additional review of impacts for EJ communities. The Department explained there is no definition of "overburdened" in New York; however, consistent with the purpose of Article 10, the regulations use long-established demographics on race, ethnicity and income used in CP-29, the Department's EJ Policy, which establishes a mechanism for identifying Potential EJ Areas. Section 487.5 (b) and (c) are intended to ensure that inaccuracies in data or shifts in demographics do not exclude areas that should receive an EJ analysis. Section 487.5(c)(2) was revised to modify the threshold margin from 85% to 75% to more fully capture shifts in populations, and require a closer examination of areas that are statistically borderline prior to excluding them from a full EJ analysis. The Department also discussed that it will be reviewing and updating CP-29 and will consider the inadequacies of the current 2010 Census.

Impact Study Area/Comparison Areas (19): Many comments sought an Impact Study Area (ISA) larger than one-half mile and stated the size of the ISA should not be at the applicant's discretion. Several comments appeared to confuse the ISA with the area modeled for cumulative air impacts. Other comments criticized that the ISA was restricted to a radius when impacts are not. Finally, some comments made specific suggestions for revising the definition of the ISA. The Department responded that both the use of a radius and the default size of the ISA are based on Article 10 Section 164(1)(h). Further, the one-half mile radius is the minimum radius, to be expanded based on site-specific factors. The Department explained that a larger radius may not be appropriate, especially in suburban or urban settings, and that it does not believe it should stray from the statutory language as its experience has shown that a radius works for modeling impacts. In response to comments, the Department revised Section 487.4 to clarify that the applicant "shall" increase the ISA based on site-specific factors and made a minor revision to the definition of ISA in Section 487.3. Some comments were in favor of requiring New York City as a third Comparison Area, another thought it should be voluntary. One comment suggested amending Section 487.8(b) to clarify that New York City must be used when any portion of the ISA is within the City. Several comments suggested removing the one-mile limit for "adjacent communities." The Department agreed that New York City should be used as a Comparison Area if the facility will be located in the City and did not agree that the City should be used if any portion of the ISA falls within the City. The Department revised Section 487.8(b) to clarify this intent. The Department also revised the definition of "adjacent communities" to make the one mile limit applicable only in New York City.

Cumulative Impact Analysis of Air Quality (34): A few comments expressed concern that by not including ozone, smog would not be adequately addressed. The Department explained that ozone is a regional pollutant formed through chemical reaction between NOx and VOCs and because of the complexities of ozone formation, its impacts are not evaluated on a source-by source basis; however, local impacts of NOx are modeled. Many comments sought inclusion of an expanded list of emissions and emission sources, such as mobile and minor sources, localized emissions, and fugitive emissions, as well as specific pollutants that are known to be emitted by certain facilities, while another comment stated that an inordinate amount of sources need to be modeled. A few comments recommended that the regulations address cross-pollutant and aggregate impacts and the multiple pathways through which humans are exposed to pollutants. The Department explained that a measure of background sources is included in background air quality values and that all relevant pollutants will be modeled, and that a multi-pathway assessment will be required as necessary. One comment said that the regulations result in double counting of existing source emissions and another that the analysis is comprehensive and therefore does not need to allow for inclusion of contiguous sources. Another comment expressed concern that the EJAIA will be too large based on the "third" distance of maximum impacts. The Department responded that Section 487.7 is consistent with current guidance and it does not believe the EJAIA will be unreasonably large. Several comments stated that the limited set of non-criteria pollutants is too vague and the Department should provide guidance on what is required. The Department explained that the protocol and the health-based criteria used to determine the non-criteria pollutants to be modeled will be similar to those currently used under SEQR and CP-29. The Department also revised Section 487.7(b)(3) to clarify the set of non-criteria pollutants to be modeled is based on the pollutants to be emitted by the facility and required to be identified by the applicant. Finally, one comment disagreed with the Department's cost estimate for conducting the cumulative analysis. The Department explained that it is intended to be an estimate of the incremental additional cost and that since a modeling assessment will be required in all cases, the cost of the EJ-specific cumulative analysis will not be significant.

Descriptions/Evaluation of Disproportionate Impacts (15): Some comments concurred with the descriptions; others suggested that too much information is required, such as information on existing facilities. One comment stated that the applicant should not be required to examine existing burdens, especially since the EJ Work Group could not reach a consensus, but applicants may use existing burdens to determine offset and mitigation measures. The Department responded that it is essential to include the listed facilities because EJ communities have historically been overburdened with polluting industrial facilities and the Department will assist applicants with compiling this data. Some comments expressed concern that if the EJ Work Group could not reach a consensus on how to determine disproportionate impacts, the applicant won't be able to do so. The Department acknowledged that it would have been helpful if there was a consensus; however, the fact that no consensus was reached does not relieve the Department of its obligation to establish a methodology. Several comments opposed the use of regulatory thresholds for measuring the significance of the facility's impacts, as well as the use of "generally excepted" methods for evaluating physical conditions. The Department explained that regulatory thresholds are appropriate measures for evaluating significance but that they are not the only measures; the applicant must also consider other factors. The Department explained that generally accepted methods are important to ensure the quality and validity of the applicant's evaluations and assessment; however, parties may seek to introduce at hearing any legitimate or credible methodologies for assessing cumulative and disproportionate impacts. One comment stated that the lack of clarity suggests that every EJ community will have disproportionate impacts. The Department responded that it anticipates that EJ areas will likely be disproportionately impacted, which is the reason for Article 10's EJ provisions; however, this does not mean that the proposed facility will result in or contribute to significant and adverse disproportionate impacts.

No Mechanism or Standard to Reject or Deny an Application (7): The Department received several comments suggesting that there should be a trigger or maximum number of facilities in a community that would result in denying the application and some suggested that this was a loophole in the regulations. The Department responded that Article 10 does not contemplate the automatic rejection of an application or denial of a Certificate because a community is already overburdened and that it is solely the Board's decision to grant or deny a Certificate.

Measures to Avoid/Minimize/Offset Disproportionate Impacts (10): Several comments stated that the regulations should provide more guidance on offset measures. The Department replied that it believes there is enough guidance provided as the appropriate offsets will be case-specific and should be determined with community input, and also provided some examples of offsets. Other comments suggested that the regulations be clarified so that if an impact cannot be fully avoided or minimized that it must still be offset. The Department revised Section 487.10 to clarify this intent. One comment stated the regulations must clarify that the applicant must offset any disparity found across any comparison. The Department revised the regulations to clarify the applicant must compare the ISA against each Comparison Area but does not believe the regulations should prescribe how the applicant weighs differences among the comparisons.

Vague or Inconsistent Criteria or Terms (13): Several comments stated that definitions or provisions were unclear and will hinder implementation or interpretation of the rule. One comment suggested that it would result in even a re-powering project being likely to cause disproportionate impacts. The Department replied to these comments by adding a definition of health outcomes, and making minor revisions to some definitions as well as some minor clarifying revisions, but believes that otherwise, the definitions and language provide adequate guidance to applicants, and cannot be more prescriptive as an EJ analysis is case-specific.

Regulations Exceed Scope of Article 10 (6): One commenter submitted several comments that the regulations exceed the Department's authority or what is expressly required in Article 10. The Department replied that Section 164(1)(f) gives the Department broad authority to promulgate these regulations, and while the regulations generally use the language contained in Article 10, they include additional requirements where necessary to ensure a meaningful evaluation of disproportionate impacts. In response to one of the comments, the Department revised Section 487.11 to eliminate any ambiguity.

General (46): Many comments discussed existing environmental and health conditions that burden minority and low-income communities, and several comments affirmed the regulations would help communities participate in the process; however, some comments stated the regulations fall short of Article 10's goals. The Department responded that the purpose of the regulations is to evaluate disproportionate impacts in these communities, including cumulative air impacts and health outcomes. The Department agreed that the regulations will assist communities in participating in the Article 10 process and disagreed that the regulations will not achieve the goals of Article 10. Several comments were about Indian Point; supporting or opposing the closure, or stating that existing facilities should be included in these regulations because if Indian Point closes there will be more reliance on emitting facilities which should be considered. Several comments stated support for alternative energy while one comment suggested that clean energy sources be exempt from doing an EJ analysis. The Department replied that the potential closure of Indian Point, as well as prioritizing alternative energy sources, is outside the scope of the regulations. A few comments stated the regulations do not affirmatively require outreach to EJ stakeholders specifically. The Department disagreed and believes that Article 10, these regulations, and DPS's draft regulations provide ample involvement of EJ stakeholders.