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THE ASSEMBLY
STATE OF NEW YORK
ALBANY
Jaclyn A. Brilling, Secretary
Public Service Commission
3 Empire State Plaza
Albany, NY 12223-1350
Dear Secretary Brilling:
May 31. 2012
RECEIVED
PUBLIC
fXEC||LLALANY
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We are writing about the "Regulations Implementing PSL Aticle 10
Governing Applications to Construct Major Electric Generating Facilities"
recently proposed by the Public Service Commission (PSC) (Stale Register
1.0. #PSC-15-12-00006-P). These rules add a new Subchapter A to 16
NYCRR Chapter X to implement the new streamlined permit process
provided for in the "Power NY Act" (Chapter 388 of the Laws of 2011).
We previously commented (copy enclosed) on a related rule proposal by
the Department of Environmental Conservation (DEC) entitled "Analysis of
Environmental Justice Issues Associated with the Siting of Major Electric
Generating Facilities" (State Register 1.0. #ENV-03-12-00010-P). We
advised DEC that additional regulatory provisions were needed to ensure
the process for siting major electric generating facilities fully effectuates
the commitment we made in the Power NY Act for enhanced review of
environmental justice (EJ) issues under the new Article X.
Severa! of the recommendations we made to DEC are equally appropriate
for consideration for inclusion in the regulations of the Board on E!ectric
Generation Siting & the Environment. The Board has incorporated
numerous provisions in its proposed regulations to facilitate meaningful
involvement by the public as a whole (e,g., intervenor funding, the public
information coordinator), However, nothing in these regulations or
proposed Part 487 provides for specific outreach or assistance to the
affected members of EJ communities. It is well-recognized that members
of these communities face additional barriers to active and informed
participation that require affirmative efforts to overcome.
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We recommend that the Board review DEC's EJ policy (Commissioner's
Policy CP-29) and ensure that the Article X rules include appropriate
provisions needed to ensure meaningful participation by members of
impacted EJ communities. Among these are requirements for a targeted
Dublic participation plan that actively seeks to identify and involve
stakeholders in a potential EJ area, the conduct of periodic public
information meetings at locations and times convenient to EJ community
stakeholders. the establishment of document repositories in or near the EJ
community, and periodic progress reports to ensure that the enhanced
public participation plan is successfully implemented on an on-going basis.
The Board should also ensure that when an application involves an EJ
community, local parties within such community are included in any
allocation of intervenor funds.
We hope these comments are helpful in developing the final verSlon of
these regulations. Please feel free to contact us if you require any further
information on these comments.
Very truly yours,
J.
Kevin A. Cahill Robert K. Sweeney
Chair Chair
Assembly Standing Committee Assembly Standing Committee
on Energy on Environmenta! Conservation
Charles D. Lavine
Assembly Chair
Administrative Regulations
Review Commission
I
THE ASSEMBLY
STATE OF NEW YORK
ALBANY
March 14, 2012
Melvin Norris
NYSDEC Office of Environmental Justice
625 Broadway
Albany, NY 12233-1500
Dear Mr. Norris:
We are writing about a recent rule proposal by the Department of
Environmental Conservation (DEC) entitled "Analysis of Environmental
Justice Issues Associated with the Siting of Major Electric Generating
Facilities" (State Register I.D. #ENV-03-12-0001O-P). These rules add a
new Part 487 to Title 6 NYCRR to implement the commitment made in the
"Power NY Act" (Chapter 388 of the Laws of 2011) that a streamlined
permit process for electric generating facilities would not diminish the
review of environmental justice (El) issues, but would in fact provide for
enhanced EJ reviews. While there may be other improvements that could
be made to proposed Part 487, these comments focus on one significant
omission in the proposal that we believe would render the analysis of E
issues under Article X much less meaningful than those undertaken under
the provisions of the State Environmental Quality Review Act and DEC's
own EJ policy.
The proposed rules establish standards for determining whether the
impact study area includes one or more EJ communities. If so, the
preliminary seoping statement must include a preliminary evaluation of
any potentially significant and adverse disproportionate impacts, the
proposed measures to avoid, offset or minimize these impacts, and
describe any additional studies or program of studies the applicant
proposes in support of its final E analysis. The proposed rules also set
forth lhe process for completing all required studies and require the
application to include a statement of environmental justice issues
discussing why the remedial measures it proposes were chosen and how
lhey can be verified.
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An of the above requirements omit a key element of environmental justice:
nowhere is there any affirmative requirement to ensure meaningful
involvement of the EJ community in the process. While it is true that the
statute contains several provisions to facilitate meaningful involvement by
the public as a whole (intervenor funding, the public information
coord ina lOr), nothing in the statute or proposed Part 487 provides for
specific outreach to the affected members of EJ communHies. As the
Office of Environmental Justice well knows. one basic tenet of
environmental justice is that government must work actively to overcome
barriers that have all LOO often resulted in decision-making without the
active and informed participation of minority and low-income
communities.
Environmental justice 1S not something that is "done to" or even "done
for" an EJ community, To be effective, it must be done with the
community members. DEC's own EJ policy. Commissioner's Policy CP-
29, recognizes this by requiring an enhanced public participation plan that
actively seeks to identify stakeholders in a potential EJ area; provides for
information to be distributed to the EJ community that is written in an
understandable manner, including in other languages where appropriate:
calls for holding periodic public information meetings at locations and
times convenient to EJ communi[y stakeholders; establishes document
repositories in or near the EJ community; and requires progress reports to
ensure that the enhanced public participation plan is successfully
implemented on an on-going basis. With the exception of the provision
for appropriate translation of documents (and a plain language requirement
that only applies to the final EJ analysis), none of these very important
components of the EJ process would be required to occur in an analysis
under Part 483.
Requirements for meaningful public involvement and broad public
participation are necessary and important, but such requirements extend
to not only EJ community members, but also to other residents of the
impact study area and of any alternate location, and to other residents of
the affected municipalities. Outreach and engagement of EJ community
stakeholders is necessary so that their voices are not subordinated to
those of other affected communities with more resources, and also to
ensure that the analyses and recommended mitigation measures are not
developed in dry studies that are detached from their knowledge and
insights on the needs of their community.

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We urge DEC to include provisions in the rules for meaningful outreach to
stakeholders in EJ communities potentially impacted by an Article X
application, to maXimize their ability to participate meaningfully
throughout the process. We also encourage you to consider incorporating
some of the newer tools currently under review by the US Environmental
Protection Agency, such as community-based participatory research, to
maximize the benefits of EJ community involvement.
We hope these comments are helpful in developing the final version of
these rules. Please feel free to contact us if you require any further
information on these comments.
Very truly yours,
RObeS Kevin J. Cahill
Chair Chair
Assembly Standing Committee Assembly Standing Committee
on Energy on Environmental Conservation
C O y
Charles D. Lavine
Assembly Chair
Administrative Regulations
Review Commission