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February 10, 2012

New York State Department of Environmental Conservation Proposes Article X Regulations

On January 15, 2012, the New York State Department of Environmental Conservation ("NYSDEC" ) proposed two new regulations for implementation of Article X of the New York Public Service Law, which was renewed, revised and signed into law on June 23, 2011 and governs the siting of Major Electric Generating Facilities (see Hiscock & Barclay Legal Alert "New York State Power Plant Siting Bill Renewed," June 2011). Article X requires NYSDEC to develop an environmental justice analysis rule and a carbon dioxide emissions performance standard by June 23, 2012. As such, NYSDEC proposed the following rules: (1) Part 251, CO2 Performance Standards for Major Electric Generating Facilities; and (2) Part 487, Analyzing Environmental Justice Issues in Siting of Major Electric Generating Facilities Pursuant to Public Service Law Article 10.

CO2 Performance Standard Rule

The proposed CO2 Performance Standard rule would apply to new major electric generating facilities with a nameplate capacity of 25 MW or more, and to existing facilities that increase capacity 25 MW or more. For existing facilities, the rule would apply only to the capacity increase, and not to the entire facility.

The following emission rate limits are required by the proposed rule: 

  • For boilers permitted to burn greater than 70% fossil fuel; combined cycle turbines; and internal combustion engines that fire only gas: 925 lb CO2/MW or 120 lb CO2/mmbtu; 
  • For simple cycle combustion turbines and internal combustion engines that fire liquid fuel or liquid and gas: 1450 lb CO2/MW or 160 lb/mmbtu; 
  • For other emission sources, including waste-to-energy and biomass facilities, the owner or operator of the facility must propose and meet a NYSDEC-approved case-specific emission limit for CO2.

Pursuant to the proposed rule, the CO2 emission rate limits would be measured on a 12-month rolling average basis and could be met by a facility using either an output based limit (MW generated), or an input based limit (annual Btu input).

Analyzing Environmental Justice Issues Rule

The Article X Siting Board's approval and issuance of a certificate to construct is based on, among other things, whether the proposed facility will avoid, offset or minimize adverse disproportionate environmental impacts in the area where the facility will be located. In order to make this determination, the proposed rule sets up requirements for a site-specific environmental justice ("EJ") analysis. This analysis will be used by the Siting Board in its determination of whether the proposed facility will avoid, offset or minimize adverse disproportionate environmental impacts in the area where the facility will be located.

The EJ analysis must be included in the applicant's scoping statement, and may include: 

  • A description of Comparison Areas (the county, the adjacent communities and, if in the City of New York, also the entire City) that were used to determine whether communities in a facility's proposed location would experience disproportionate impacts; 
  • A comprehensive demographic, economic and physical description of the study area and Comparison Areas that includes health data, the number of NYSDEC-regulated facilities and waste sites, open space, ground or surface water quality and historic and cultural resources; 
  • An evaluation of any significant and adverse disproportionate public health or environmental impacts from the construction and operation of the facility; 
  • Cumulative air impacts analysis, including an evaluation of stationary sources in the community; and 
  • Measures to avoid, offset or minimize likely impacts from the proposed facility to the maximum extent practicable. These proposed new requirements have the potential to add significant costs to the evaluation, application, approval and construction of a facility covered by Article X. Among the potential concerns are the cost and resources associated with the new EJ analysis requirements; the preliminary scoping requirements, which are not contained in the Article X legislation; and determining how applicants will obtain the data required to complete the EJ analysis.

These proposed regulations are open for public comment until March 15, 2012 and can be found at Companies that may be impacted by these proposed rules should consider submitting comments to NYSDEC. Please contact us if you would like assistance.

If you would like more information on the content of this Legal Alert please contact any member of the Environmental Practice Area.


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