The New York State Department of Environmental Conservation (NYSDEC) recently issued an updated version of its policy document outlining the requirements for analyses of the Climate Leadership and Community Protection Act (CLCPA) for air permit applications. The final policy, DAR-21: The Climate Leadership and Community Protection Act and Air Permit Applications, was issued on December 14, 2022, and strengthens requirements in the proposed 2021 draft version. Trinity published an article following the issuance of the draft version describing its impacts on air permit applications in New York. The final adopted version includes key updates that could potentially have significant impacts on the process of reviewing air permit applications concerning the CLCPA.
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. DAR-21 requires an analysis of the CLCPA to be submitted in conjunction with a large portion of air permit applications in New York. Specifically, a DAR-21 analysis addresses the goals of Section 7(2) of the CLCPA, which focuses on GHG emissions reduction. Air permit applications can be deemed inconsistent with the CLCPA if they result in increased GHG emissions without a proper analysis of alternative technologies and measures that might be taken to mitigate emissions. The core requirements of analysis include:
- Quantification of direct GHG emissions from new or modified sources in units of carbon dioxide equivalent (CO2e) on a 20-year global warming potential (GWP) basis (CO2e 20-yr). This includes emissions from the combustion of fossil fuels, decomposition of chemical reactants, and fugitive leaks of greenhouse gases such as methane (CH4).
- Quantification of upstream GHG emissions as a result of the extraction, production, and transmission of fossil fuels at a facility and electricity imported into New York. New York State recently published updated emission factors to be used when calculating upstream emissions as an appendix to the 2022 NYS Statewide GHG Emissions Report.
- Quantification of downstream and indirect GHG emissions as a result of the project, also in CO2e 20-yr. The New York emission factors also provide some guidance on calculating these emissions, which can include the transmission and combustion of fossil fuel products that will be transported from a facility in greater quantities due to a project.
- Projection of GHG emissions in the years 2030 and 2050.
- Analysis of alternative technologies and potential mitigation measures that could address any increase in GHG emissions from the facility as a result of the permit application. These could include the utilization of a different fuel or equipment technology that results in decreased GHG emissions. Alternatives and mitigation measures may be rejected due to technical or economic barriers to implementation.
The changes in guidance from the draft version of DAR-21 to the final issued version could potentially affect the applicability of DAR-21 to your facility’s air permit. The final policy applies to “all pending permit applications,” meaning that the NYSDEC can now request that your facility complete a CLCPA analysis despite having submitted a permit application before the issuance of DAR-21. In addition, although CLCPA analyses are not typically required for Air Facility Registrations, the NYSDEC can request an analysis for “projects with significant GHG emissions.” Applications for all new, modifications to, and renewals of Title V and Air State Facility permits require a CLCPA analysis for sources that are changing GHG emissions.
The final DAR-21 policy also takes a stricter stance on what qualifies as a project that would be considered inconsistent with the CLCPA and formally indicates that the NYSDEC can deny permits on the grounds of the CLCPA. This is consistent with the findings of a recent court case that upheld the NYSDEC’s ability to deny a permit on the grounds of the CLCPA. Although an analysis of alternatives and mitigation measures was required if GHG emissions increased under the draft guidance, the final policy appears to suggest that any project that increases GHG emissions is inconsistent with the CLCPA, and sufficient analysis of alternatives and mitigation measures is required to allow the NYSDEC to conclude that there is sufficient justification for the project. It is now clear that the NYSDEC may conclude that there is no sufficient justification for a project, which could result in the denial of the permit. Also, a company may no longer take credit for GHG mitigation measures implemented outside of the community of the facility being permitted. The full text of the final policy is available on the NYSDEC’s website.
In addition to meeting the requirements under DAR-21, which addresses Section 7(2) of the CLCPA, the NYSDEC expects a full CLCPA analysis to also analyze the project concerning Section 7(3) of the CLCPA. Section 7(3) sets forth requirements for New York State to prioritize emissions reduction in “disadvantaged communities” and to address “co-pollutants”, which are hazardous air pollutants (HAP) emitted from facilities that also emit GHGs. Disadvantaged communities (DAC) are census tracts 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. If your facility is located near a draft DAC, which can be found on the NYSDEC’s website, be prepared to analyze emissions of HAP emissions as part of a CLCPA analysis for a permit application. Trinity is not aware of formal guidance on this analysis published to date, but guidance given to facilities undergoing permitting indicates it should generally include quantification of HAP emissions and an analysis of alternatives and mitigation measures to minimize HAP emissions.
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 for CLCPA analyses. The office has worked with the NYSDEC and industry clients to prepare many CLCPA analyses to support a wide variety of air-permitting actions that have been approved by the NYSDEC.
If you would like to discuss DAR-21 and the requirements of a CLCPA analysis and how they may impact your facility, please email Brian Noel in Trinity’s Albany office or call 518.348.9276.
