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New York Lawyers For The Public Interest & NYC-EJA Comments Re: Article 10

New York Lawyers For The Public Interest & NYC-EJA Comments Re: Article 10

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New York Lawyers For The Public Interest & NYC-EJA Comments Re: Article 10
New York Lawyers For The Public Interest & NYC-EJA Comments Re: Article 10

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Published by: pandorasboxofrocks on May 30, 2012
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New York LawyersNew York LawyersNew York LawyersNew York LawyersFor The Public Interest, Inc.For The Public Interest, Inc.For The Public Interest, Inc.For The Public Interest, Inc.
151 West 30
Street, 11
FloorNew York, NY 10001-4017Tel 212-244-4664 Fax 212-244-4570TTY 212-244-3692 www.nylpi.org
May 29, 2012Honorable Jaclyn A. BrillingSecretary, New York State Board on Electric Generation Siting and the EnvironmentThree Empire State PlazaAlbany, NY 12212-1350Electronic SubmissionRE: Case 12-F-0036: In the Matter of the Rules and Regulations of the Board onElectric Generation Siting and the Environment, contained in 16 NYCRR,Chapter X, Certification of Major Electric Generating FacilitiesDear Secretary Brilling:On behalf of New York Lawyers for the Public Interest and the New York CityEnvironmental Justice Alliance, I submit the following comments on the draft regulations of theBoard on Electric Generation Siting and the Environment, issued on March 27, 2012.New York Lawyers for the Public Interest (NYLPI) is a non-profit law firm whosemission is to advance equality and civil rights through the power of community lawyering andpartnerships with the private bar. NYLPI’s Environmental Justice Program partners with and hasrepresented residents and community-based organizations in low-income communities andcommunities of color throughout New York City on a number of environmental issues, includingthe siting of power plants.The New York City Environmental Justice Alliance (NYC-EJA) is a New York City-wide membership network founded in 1991 that links grassroots organizations from low-incomeneighborhoods and communities of color in their struggle for environmental justice. Throughtheir efforts, member organizations coalesce around specific common issues that threaten theability for low-income communities of color to thrive. NYC-EJA members represent a numberof communities that host power plants and the coalition has been actively involved in advocatingfor equitable siting policies and practices.Please contact the undersigned should you have any questions.Sincerely,Gavin Kearney
Director, Environmental Justice Program
Comments of NYLPI and NYCEJA - 1
IntroductionThe following comments are discussed in the order in which they appear in the proposedregulations. While we raise a number of issues below, in general our comments are focused ontwo main policy goals: ensuring that communities in which facilities are proposed are able toadvance their interests through effective participation in the Article X process, and ensuring thatapplicants offset disproportionate impacts of a proposed facility to the maximum extentpracticable for the duration of the certificate.1000.2 Definitions
(u) “Local Substantive Requirements” – We recommend that local requirements relatedto waste handling facilities be added to this definition. Incineration and “waste-to-energy” facilities raise unique concerns related to the transportation, handling, andstorage of solid waste. To address how these concerns manifest in specific settings,localities in New York State have adopted laws and regulations that balance the need forwaste handling infrastructure with the environmental and quality-of-life impactsassociated with waste. For example, New York City has adopted siting regulations thatare responsive to its unique environment and that ensure waste management facilities arenot overly concentrated in specific communities or sited in close proximity to sensitivereceptors. We strongly believe that the Article X process should not provide amechanism for circumventing such regulations. We similarly recommend that Stateregulations related to the siting of waste facilities be similarly designated.
(ar) “Study Area” – To ensure effectiveness and avoid unnecessary confusion, werecommend that, consistent with the definition of “Impact Study Area” in the proposedEnvironmental Justice (EJ) Regulations, the Study Area be expanded to include any areaaffected by at least one significant adverse impact from the proposed project.1000.4 Public Involvement
As stated in our comments to the Working Draft of these regulations, we recommend thatthe regulations clearly state the Department of Public Service’s (DPS) authority tomandate public involvement activities to be undertaken by the applicant, rather thansimply allow it to make recommendations that the Applicant can choose not to follow.As noted at that time, should DPS decline to include public involvement mandates in itsregulations, at a minimum we recommend that the regulations specify that failure toadhere to DPS recommendations could make any certificate issued vulnerable to legalchallenge.
Comments of NYLPI and NYCEJA - 2
1000.5 Pre-Application Procedures
(d)(3) We recommend that the regulations be amended to clarify that the “application andreview process” to be described in the preliminary scoping statement include adescription of the process for accessing intervenor funding.
(e) We commend the Department for including Borough Presidents and CommunityBoards among those official that an applicant must serve with a copy of the preliminaryscoping statement. Like these officials, we recommend that members of the statelegislature receive notice if their district includes any areas affected by the proposedproject and also recommend that the regulations clarify that “affected areas” iscoextensive with the Impact Study Area defined in the proposed EJ regulations.
(k)(1): Where an applicant preliminarily identifies that a proposed project woulddisproportionately impact an EJ community, we recommend that the regulations requireits preliminary scoping statement identify measures proposed to offset such impacts.1000.7 Publication and Content of Notices
(b)(1) We recommend that the regulations specify that newspaper notices provided inlanguages other than English be published in newspapers serving appropriate languagecommunities, to the extent possible. For example, where possible, Spanish-languagenotice should be published in those Spanish-language newspapers read by the affectedSpanish speaking community.
(b)(2) Consistent with pre-application requirements, we recommend that notice beprovide to members of the state legislature in whose district any portion of the StudyArea is located and, in New York City, to Borough Presidents and Community Boards inwhose jurisdiction any portion of the Study Area is located.1000.10 Fund for Municipal and Local Parties
(a)(3) We recommend that this provision specify that notice of availability of funds mustbe given to the same parties for whom pre-application notice is required.
(a)(9) As stated in our Working Draft comments, we recommend that the regulationsprovide some guiding criteria on what constitutes an “equitable basis.” Specifically, werecommend that priority be given to those community members and groups mostimpacted by a proposed project; to those community groups most representative of theaffected community; and to those community groups and members most in need of funding in order to meaningfully participate in the Article X process.
(c) General Provisions
Subsections (iv) and (vi) appear to be in tension with one another. The formerrequires at a minimum “a statement of the necessary professional qualifications”

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