Government Affairs Albany Update - March 21, 2003
At the second Senate Labor Committee meeting of this session held on March 18th, S.772 (Marcellino) was reported and went onto Senate calendar 227.
S.227 would amend the state Labor Law and prohibit employers from hiring permanent replacement workers during a lawful strike or lockout. It would also authorize backpay and other remedies to affected workers.
The Department of Environmental Conservation (DEC) has finalized its policy for incorporating "environmental justice" concerns into environmental quality permitting programs. The final policy, published in the March 19 Environmental Notice Bulletin, takes effect 30 days after that publication date.
Key provisions include the following:
- it applies to major projects (as defined in DEC's "uniform procedures" rules, 6 NYCRR Part 621) and major modifications that are covered under the permitting programs for: wastewater discharges (SPDES); air emission permits (Title V and state facility permits); solid waste and hazardous waste management; and industrial hazardous waste facility siting. Permit renewals are exempt, unless considered to be major projects under Part 621.
- it requires permit applicants to develop and implement enhanced public participation plans if a proposed action is likely to have adverse environmental impacts in a "potential environmental justice area" (defined as any census block group that exceeds listed thresholds for minority or low income populations.) This plan includes the distribution of project information in the affected community, the holding of multiple public information sessions, the establishment of information depositories and other requirements.
- for any such projects that are "unlisted" under the DEC's environmental quality review act (SEQRA) rules, the policy requires the applicant to complete a full "environmental assessment form" in order to help identify and assess potential adverse impacts in environmental justice areas.
- it requires that the DEC hold a public hearing, and offer at least a 60 day public comment period, for any affected project.
The final policy excludes the requirement - proposed in the June 2002 draft policy - that environmental impact statements include an assessment of "disproportionate impacts" within environmental justice areas, as well as the consideration of measures to mitigate any such impacts. The Department has said that the policy will be amended to include disparate impact assessment and mitigation requirements as soon as specific criteria and procedures are developed. Further, DEC will be proposing SEQR regulatory changes to make this analysis a required part of environmental impact statements for project where DEC is not the lead agency.
On the other hand, we argued against the DEC's decision to trigger environmental justice reviews based on the potential for adverse impacts on a single census tract, even in instances where the overall area affected by a proposed project has relatively small minority or low income populations. We also argued that this new public participation requirement exceeds DEC's current regulatory authority granted under Part 621.
The Business Council was a member of the DEC's original Environmental Justice Advisory Committee, and continues to participate in the Department's development and implementation of its environmental justice program.
With the sunsetting of Article X of the Public Service Law ("siting law") on December 31, 2002 the law which governs the permitting of major electricity generating facilities the process has reverted to the state environmental quality review process (SEQR). On December 17, 2002, in anticipation of the expiration of the law, the State Senate passed an extender S.7597 (Wright). The bill was a clear extender of Article X for 5 years. It also extended from January 1, 2003 until July 1, 2011, article 6 of the energy law providing for state energy planning and the state energy plan (SEP). The Assembly failed to take up the bill. Without passage of an agreed upon bill by both Houses or the passage of extension legislation by the Assembly (S.7597), the State's "siting law" effectively ended December 31, 2002 at midnight. However, all of the projects already in the application phase will continue to be governed by the Article X law.
This year Senator James Wright (R- Watertown) has again introduced legislation (S.1353) to extend the siting law for five years and keep in place legislation guaranteeing a state energy planning process. The Business Council supports the Senate bill. The Assembly has introduced and passed legislation that would dramatically alter the siting process by lowering the threshold of projects covered from 80 MWs to 30 MWs. The Assembly plan would also; increase intervener funds, mandate new studies that would slow the process, and add additional process-slowing mandates. This legislation is a clear impediment to competitive markets and sends a strong signal to the project development community that New York is not a favorable place to site electricity generating facilities.
The Business Council had issued a memo in opposition against the Assembly bill (A.6248-A) which passed on March 19th.
All of the projects that have entered the process prior to December 31, 2002 will continue to be governed by Article X. The last project to enter the process was TransGas Energy Systems, LLC which filed its application for an 1100 Megawatt, natural gas-fired, combined cycle plant in Greenpoint, Williamsburg, Brooklyn on December 24, 2002. In addition to TransGas there are 15 other active projects 9 projects that have been approved (5410 MWs) and 7 are in the post application phase (3695 MWs). None have come on-line yet.
On Wednesday, the Senate approved S.2935 (Marcellino), which would implement a brownfield cleanup and redevelopment program that differs sharply from the modified Governor's program bill which passed the full Senate at the end of last session.
As reported last week, S.2935 focuses primarily on the creation of a statutory brownfield program, and makes limited changes to the state's "superfund" or oil spill programs.
The Business Council opposed S.2935 because it: imposes significant new business fees, expanded the scope of the superfund program with no countervailing reforms, and imposes an excessively stringent cleanup requirement on brownfield cleanups.
The Assembly has said that it may introducing its own brownfield cleanup proposal as early as next Tuesday. However, to date, there is no indication on its scope or provisions. This week, the Assembly EnCon Committee did report A.5303 (DiNapoli), which refinances the state superfund program using new hazardous waste program fee surcharges (the same surcharge proposal included in S.2835) and an unspecified amount of bonds to be issued by the Environmental Facilities Corporation. The Assembly passed similar legislation during the 2002 session.