On May 8, 2024, the New York State Department of Environmental Conservation (NYSDEC) published the final version of a new policy that will require analysis of impacts to disadvantaged communities (DACs) as part of most environmental permitting actions. The issued final policy, DEP-24-1: Permitting and Disadvantaged Communities, is the latest action taken by the NYSDEC in response to the landmark Climate Leadership and Community Protection Act (CLCPA). The NYSDEC previously published a draft of this policy in September of 2023 as DEP-23-1: Permitting and Disadvantaged communities.

Passed in 2019, the CLCPA established statewide goals for greenhouse gas (GHG) emissions reductions and created the framework for DAC protections under its Section 7(3). Since then, environmental permit applicants may have been asked to address Section 7(3) in ad-hoc guidance from the NYSDEC. In addition, air permit applications are subject to review under policy DAR-21, which addresses the GHG emissions limits established in Section 7(2) of the CLCPA. DEP-24-1 finalizes the first published requirements for analyzing DAC impacts. The guidance applies to “all major permit applications” as defined in the Uniform Procedures Act (UPA) regulations in Title 6 of the Codes, Rules, and Regulations of New York (6 CRR-NY) Part 621, including pending applications for renewal and modification. Applications for initial Title V permitting, significant modification, and renewal are considered major under the UPA and as such will be potentially subject to DEP-24-1.

Despite its broad applicability, permit applications will only require substantial analysis under DEP-24-1 if the NYSDEC determines that the proposed project is likely to impact a DAC. For these determinations, the NYSDEC will screen any received permit applications to evaluate them for potential impact based on proximity and potential environmental impacts to DACs. Additional requirements, including a disproportionate burden analysis and enhanced public participation plan (EPPP), will apply if a proposed project is determined to potentially impact a DAC based on the preliminary screening. 

The final DEP-24-1 clarifies that “a project is likely to affect a disadvantaged community if there would be an increase in GHGs or co-pollutants within a disadvantaged community.” The policy also requires that the preliminary screenings evaluate DACs within at least a half mile of the applicant’s facility, which was not previously stated in the September draft policy DEP-23-1. Therefore, facilities increasing emissions of GHGs or co-pollutants that are located within a half-mile of a DAC can expect to be required to complete additional analyses as part of major permitting actions. 

Notably, DEP-24-1 redefines co-pollutants as air pollutants produced by GHG emissions sources including all regulated air contaminants and any pollutant identified by the NYSDEC “on a case-by-case basis,” expanding the definition of co-pollutants in the CLCPA from hazardous air pollutants (HAPs) produced by greenhouse gas emissions sources. With this new definition, applicants’ facilities must analyze emissions of all criteria pollutants including NO_x and PM₁₀ in addition to HAPs. The resulting emissions of any such compound from proposed projects will be considered in the NYSDEC screening.

Facilities submitting a major permit application that may potentially impact a DAC based on the NYSDEC screening must complete an EPPP per the existing Commissioner Policy 29, Environmental Justice and Permitting (CP-29) and prepare a disproportionate burden analysis for “any new, modified, or renewed emission sources, including… stationary and mobile sources directly related to and essential to the proposed action.” Pursuant to 6 CRR-NY 621.3(a)(13)(ii), both the EPPP and disproportionate burden analysis are required for an application to be deemed “complete” by the NYSDEC. 

According to Section V.D of CP-29, by implementing an EPPP, applicants must provide “opportunities for citizens to be informed about and involved in the review of a proposed action.” CP-29 prescribes four minimum requirements for EPPPs including identifying stakeholders, distributing information, holding public hearings on the action, and establishing accessible libraries for documents relevant to the project. As noted above, certified completion of a submitted EPPP, including a written report of the actions taken, is required for any subject application to be “complete.”

The disproportionate burden analysis must also identify relevant baseline data on burdens pre-existing the proposed project. Based on this baseline data, the applicant should state the impact of the proposed project on air quality and other DAC indicators. Such indicators are listed in the Disproportionate Burden Analysis Worksheet released with DEP-24-1 and include ambient PM_2.5 pollution and emergency room visits for asthma or COPD. If the proposed project would increase the burden on the DAC, the applicant must propose design measures or actions taken to reduce or eliminate the increased burden. The applicant may also propose permit conditions which would mitigate any disproportionate burden in the DAC of concern. In addition, the NYSDEC may impose conditions or other measures to address the disproportionate burden of the project.

Additionally, any measure stated in the disproportionate burden analysis should result in a measurable GHG or co-pollutant emissions reduction that is “in addition to actions already required by law or regulation.” DEP-24-1 further requires that all measures be “real, quantifiable, permanent, verifiable, and enforceable.” The reduction of GHG or co-pollutants from any such design measures must at least equal the resulting increase in emissions due to the proposed project.

The additional analysis requirements of DEP-24-1 create new hurdles in the permitting process. Due to the broad implications of DEP-24-1 on facilities across the state, Trinity Consultants’ New York experts will be hosting luncheons throughout the state on the topic through August 2024. These complimentary luncheons will be opportunities to learn about Trinity’s approach to the policy and ask any questions you may have about the impact of this policy on your facility. To learn more and register of these luncheons, visit the Trinity Consultant’s Training page here. If you would like to discuss the issued DEP-24-1, DAR-21, or other CLCPA related topics ahead of these sessions, please email Kenneth Fay in Trinity’s Albany office or call 518.460.1939.