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New York Lawyers For The Public Interest, Inc.

151 West 30th Street, 11th Floor New York, NY 10001-4017 Tel 212-244-4664 Fax 212-244-4570 TTY 212-244-3692

May 29, 2012 Honorable Jaclyn A. Brilling Secretary, New York State Board on Electric Generation Siting and the Environment Three Empire State Plaza Albany, NY 12212-1350 Electronic Submission


Case 12-F-0036: In the Matter of the Rules and Regulations of the Board on Electric Generation Siting and the Environment, contained in 16 NYCRR, Chapter X, Certification of Major Electric Generating Facilities

Dear Secretary Brilling: On behalf of New York Lawyers for the Public Interest and the New York City Environmental Justice Alliance, I submit the following comments on the draft regulations of the Board 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 whose mission is to advance equality and civil rights through the power of community lawyering and partnerships with the private bar. NYLPIs Environmental Justice Program partners with and has represented residents and community-based organizations in low-income communities and communities of color throughout New York City on a number of environmental issues, including the siting of power plants. The New York City Environmental Justice Alliance (NYC-EJA) is a New York Citywide membership network founded in 1991 that links grassroots organizations from low-income neighborhoods and communities of color in their struggle for environmental justice. Through their efforts, member organizations coalesce around specific common issues that threaten the ability for low-income communities of color to thrive. NYC-EJA members represent a number of communities that host power plants and the coalition has been actively involved in advocating for equitable siting policies and practices. Please contact the undersigned should you have any questions. Sincerely,

Gavin Kearney Director, Environmental Justice Program

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Introduction The following comments are discussed in the order in which they appear in the proposed regulations. While we raise a number of issues below, in general our comments are focused on two main policy goals: ensuring that communities in which facilities are proposed are able to advance their interests through effective participation in the Article X process, and ensuring that applicants offset disproportionate impacts of a proposed facility to the maximum extent practicable for the duration of the certificate. 1000.2 Definitions (u) Local Substantive Requirements We recommend that local requirements related to waste handling facilities be added to this definition. Incineration and waste-toenergy facilities raise unique concerns related to the transportation, handling, and storage 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 for waste handling infrastructure with the environmental and quality-of-life impacts associated with waste. For example, New York City has adopted siting regulations that are responsive to its unique environment and that ensure waste management facilities are not overly concentrated in specific communities or sited in close proximity to sensitive receptors. We strongly believe that the Article X process should not provide a mechanism for circumventing such regulations. We similarly recommend that State regulations related to the siting of waste facilities be similarly designated. (ar) Study Area To ensure effectiveness and avoid unnecessary confusion, we recommend that, consistent with the definition of Impact Study Area in the proposed Environmental Justice (EJ) Regulations, the Study Area be expanded to include any area affected 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 that the regulations clearly state the Department of Public Services (DPS) authority to mandate public involvement activities to be undertaken by the applicant, rather than simply 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 its regulations, at a minimum we recommend that the regulations specify that failure to adhere to DPS recommendations could make any certificate issued vulnerable to legal challenge.

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1000.5 Pre-Application Procedures (d)(3) We recommend that the regulations be amended to clarify that the application and review process to be described in the preliminary scoping statement include a description of the process for accessing intervenor funding. (e) We commend the Department for including Borough Presidents and Community Boards among those official that an applicant must serve with a copy of the preliminary scoping statement. Like these officials, we recommend that members of the state legislature receive notice if their district includes any areas affected by the proposed project and also recommend that the regulations clarify that affected areas is coextensive with the Impact Study Area defined in the proposed EJ regulations. (k)(1): Where an applicant preliminarily identifies that a proposed project would disproportionately impact an EJ community, we recommend that the regulations require its 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 in languages other than English be published in newspapers serving appropriate language communities, to the extent possible. For example, where possible, Spanish-language notice should be published in those Spanish-language newspapers read by the affected Spanish speaking community. (b)(2) Consistent with pre-application requirements, we recommend that notice be provide to members of the state legislature in whose district any portion of the Study Area is located and, in New York City, to Borough Presidents and Community Boards in whose 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 must be 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 regulations provide some guiding criteria on what constitutes an equitable basis. Specifically, we recommend that priority be given to those community members and groups most impacted by a proposed project; to those community groups most representative of the affected 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 o Subsections (iv) and (vi) appear to be in tension with one another. The former requires at a minimum a statement of the necessary professional qualifications

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of experts to be employed while the latter requires, inter alia, a detailed statement of the services to be provided including hourly fee, wage rate, and expenses, information that would be difficult, if not possible, to provide where a potential expert has yet to be identified. Section (vii) similarly requires detailed information on any study to be performed by an expert, information that will be difficult to provide by parties that lack experience with the Article X process or power plant siting generally. We recommend that the regulations be structured in a manner that allows for community-based parties to determine their funding needs as the application process progresses and as they obtain expert advice. 1001.3 Exhibit 3: Location of Facilities (5) As stated earlier, we recommend that the Study Area for evaluating impacts be tied to the actual area of impact of the facility (consistent with the Impact Study Area proposed by the Department of Environmental Conservation). We also recommend that the regulations clarify what is meant by a large facility, i.e. one that compels a 5-mile study area.

1001.15 Exhibit 15: Public Health and Safety (h) In addition to identifying how unavoidable adverse impacts will be measured and monitored, we recommend that the regulations similarly require the applicant to identify how measures to minimize and/or offset impacts, where necessary, will be measured and monitored.

1001.19 Exhibit 19: Noise and Vibration We recommend that the statement of qualifications and description of standards applied be required for all areas of study.

1001.25 Exhibit 25: Effect on Transportation (d)(4) Consistent with the statutory requirements of the Power NY Act, we recommend that reasonable mitigation measures be modified to practicable mitigation measures.

1001.28 Exhibit 28: Environmental Justice (b)(3) As stated in our comments to the Working Draft, we believe that this provision could be interpreted to misconstrue offset requirements under the Act. Because the duty to offset remains where impacts have been minimized, we recommend that if such

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impacts cannot be avoided or minimized be changed to if such impacts cannot be avoided. We also reiterate our recommendation that this paragraph clarify that offset projects must benefit, and be evaluated by the extent to which they benefit, the specific communities that are disproportionately impacted (i.e. they must be local). Ensuring Compliance with Offset Requirements As noted in our comments on the Working Draft, the Power NY Act requires that, where there is a disproportionate impact, it must be offset verifiably and for the duration of the certificate to the maximum extent practicable. (168(3)(d)) Compliance with this requirement can only be assessed through ongoing monitoring of existing offset projects and consideration of potential new offset projects, neither of which appears to be required by the proposed regulations. Rather, under the proposed regulations it appears that an applicant is required only to identify practicable offset projects at the time of its application. It does not appear that the applicant is required to report on the effectiveness of such offset projects over time, whether such offsets remain in place throughout the duration of the certificate, or whether in subsequent years it becomes practicable to further offset the disproportionate impacts of the facility. To meet the statutory obligations imposed upon applicants, we strongly recommend that the applicant be required, where disproportionate impacts have been found, to periodically file (e.g. annually) documentation of their continued compliance with their offset duties. This reporting should include: Verification of the extent to which offset projects identified during the certification process continue to offset the facilitys disproportionate impacts; and Where disproportionate impacts are not fully offset, a discussion of the extent to which additional offset projects have been undertaken by the applicant or evaluated and determined to have been impracticable.

Notice of these reports should be provided and the regulations should provide a mechanism for interested parties (including, but not limited to, parties to the certification proceeding) to propose offset projects for consideration by the applicant while a certificate is in effect and where disproportionate impacts have not been fully offset. The applicant should be required to assess the practicability of such projects, within reason, and report on such assessment in the periodic filings recommended above.