The New York State Department of Environmental Conservation (NYSDEC) recently proposed a new policy that will require an analysis of impacts on disadvantaged communities (DACs) as part of most environmental permitting actions. The draft policy, DEP-23-1: Permitting and Disadvantaged Communities, was proposed by the Division of Environmental Permits on September 27, 2023, and is the latest action taken by the NYSDEC to implement the landmark Climate Leadership and Community Protection Act (CLCPA). The NYSDEC also adopted changes to the Uniform Procedures Act (UPA) regulations in Part 621 of Title 6 of the Codes, Rules, and Regulations of the State of New York (6 CRR-NY) on August 31, 2023, to include an analysis of if the permitting action is inconsistent with or will interfere with the CLCPA-based statewide GHG emission limits as a component of a complete permit application.
The CLCPA was passed in 2019 and established ambitious statewide goals to reduce greenhouse gas (GHG) emissions and transition to renewable electricity over the next three decades. In December 2022, the state’s Climate Action Council issued a Scoping Plan outlining its recommendations to the NYSDEC for implementing the law, which proposed extensive regulatory programs still forthcoming. Since then, the NYSDEC has made substantial revisions to the policy CP-49: Climate Change and DEC Action and has issued the new policy DAR-21: The CLCPA and Air Permit Applications, the latter of which requires an analysis of greenhouse gas (GHG) emissions for many air permit applications in New York. Trinity published an article describing the requirements of DAR-21 earlier this year. DAR-21 is designed to enforce Section 7(2) of the CLCPA, which sets GHG reduction goals, while the proposed DEP-23-1 will be the first policy that enforces Section 7(3) of the CLCPA, which addresses co-pollutants and DACs. The CLCPA defines co-pollutants as hazardous air pollutants (HAP) emitted from facilities that also emit GHGs. In addition, the state’s Climate Justice Working Group (CJWG) finalized criteria in March 2023 for designating census tracts as DACs, which are areas in the state that are either socioeconomically disadvantaged or at a greater risk of experiencing significant harm brought on by climate change or industrial pollution.
The proposed DEP-23-1 will require that several types of environmental permitting actions subject to the UPA regulations in Part 621 (including air permit applications, waste management permit applications, and others) address potential impacts to DACs from emissions of GHGs or co-pollutants. The policy will apply to all major permit applications received by the NYSDEC after the issue date of DEP-23-1, and to the extent feasible, all major pending permit applications. As a result, if your facility has a pending permit application, your facility may receive a request from the NYSDEC to complete an analysis under DEP-23-1. Finally, Trinity has received requests from the NYSDEC to include a DEP-23-1 analysis with permit applications that have not yet been submitted based on the draft policy rather than waiting for the policy to be finalized.
The policy will not apply to environmental registrations such as air Minor Facility Registrations unless the NYSDEC determines an analysis is “necessary or appropriate”. The draft DEP-23-1 instructs applicants to identify if changes to a facility proposed in a permit application (called “projects”) will result in an actual increase in emissions of GHGs or co-pollutants from stationary and mobile emission sources. The NYSDEC will then determine if the project is in or is “likely to affect” a DAC based on modeling, however DEP-23-1 does not provide information on what criteria the NYSDEC will use to make this determination.
Projects in or likely to affect DACs will require preparation of a disproportionate burden report (DBR), which is described in the draft policy. If the NYSDEC determines a project is unlikely to affect a DAC, no other requirements described in the policy will apply. To prepare a DBR, the applicant must address existing burdens to the affected DAC(s) and project design measures taken to avoid disproportionate burdens. Existing burdens may be identified through analysis of the criteria that caused the area to be designated as a DAC. Project design measures are similar to mitigation measures as described in DAR-21 and should result in actual reduction of co-pollutant emissions in addition to what would otherwise be required. Examples of project design measures include using electric equipment as opposed to fossil fuel-burning equipment, using alternative raw materials that result in lower co-pollutant emissions, or funding co-pollutant reductions in the DAC(s) affected by the project. In addition, the applicant must participate in enhanced public participation. The DBR must include a complete public participation plan as described in the environmental justice policy CP-29, even if not otherwise required by the policy. Public participation under CP-29 includes holding public meetings and sending mailers to appropriate community members and stakeholders, among other requirements. Once complete, each DBR will be subject to public comment.
The adopted changes to the UPA regulations in Part 621 require the submittal of all analyses required by the CLCPA and related policies before a permit application is deemed complete. In addition to DEP-23-1 explicitly mentioning that a completeness determination cannot be made without fulfilling its requirements, providing information necessary for the NYSDEC to consider consistency with CLCPA, including a DAR-21 and/or DEP-23-1 analysis, and completing a public participation plan when required now appear to be requirements for an application to be considered complete under Part 621. These changes are significant, especially for renewal applications, because the “application shield” allowing a facility to operate under a current permit while waiting for a renewal to process only applies if a complete application has been submitted on time. Applicants will need to ensure that the requirements of DAR-21 and DEP-23-1, if applicable, are fulfilled in time to avoid jeopardizing the application shield.
Facilities under greater scrutiny from the NYSDEC or the public should be aware that another change to Part 621 allows the NYSDEC to set permit terms that are shorter than the previously standardized terms, which are now considered to be maximum potential terms. For example, all delegated state pollution discharge elimination system (SPDES) permits and all Title V air permits previously lasted for five years, but now, the NYSDEC may elect to set a permit term of two years, three years, or any other time frame.
When your facility is thinking about its next environmental permit application, consider proactively identifying if it is located in or near a DAC using the NYSDEC’s interactive tool (DEC info Locator), and be prepared to analyze both GHG and HAP emissions. You can review the full text of the proposed policy DEP-23-1 on the NYSDEC’s website, and if you or your organization is interested, provide comment until November 27, 2023.
Trinity’s Albany office pays close attention to new developments relating to the CLCPA, especially with respect to air permitting, and is very familiar with the requirements the NYSDEC has developed thus far. The office has worked with the NYSDEC and industry clients to prepare many CLCPA analyses that align with up-to-date guidance to support a wide variety of permitting actions that have been approved by the NYSDEC.
If you would like to discuss the proposed guidance DEP-23-1 and how it may impact your facility, please email Jacob Bugiera in Trinity’s Albany office or call 716.435.1134.
