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DEC Proposes Power Plant Regulations for Carbon Dioxide Emissions and Environmental Justice

By: Ed Roggenkamp

Last week, DEC proposed  two new regulations affecting power plants in New York State.  Both implement provisions of the Power NY Act of 2011, and both apply to proposals to construct or modify power plants with the capacity to generate at least 25 megawatts.

First, DEC proposed carbon dioxide emissions limits for new and expanded power plants (so long as the expansion adds at least 25 megawatts of capacity).  These limits are measured on the basis of a 12-month rolling average by dividing the total emissions of CO2 by the total megawatts generated or fuel input into the plant.

The limits are:

  • 925 pounds of CO2 per megawatt-hour of electrical output, or 120 pounds of CO2 per million Btu of input for combined cycle combustion turbines, stationary internal combustion engines firing only gaseous fuel, or boilers firing over 70% fossil fuel, and
  • 1450 pounds of CO2  per megawatt-hour, or 160 pounds of CO2 per million Btu of input for simple cycle combustion turbines or stationary internal combustion engines firing either liquid fuel or a combination of liquid and gaseous fuel.

Second, DEC proposed regulations governing analysis of environmental justice issues when power plants are sited under the reauthorized Article X of the Public Service Law.  According to DEC Commissioner Joe Martens, these are the first such regulations in the country.

The proposed environmental justice regulations require an initial analysis of the area immediately surrounding the proposed facility to determine whether that area includes an “environmental justice area” containing a minority or low-income community that may already bear a disproportionate share of environmental impacts.  If so, an application to site a power plant must include an analysis of any significant adverse environmental impacts to the environmental justice area resulting from the plant’s operation or construction.  Such an assessment must include:

  • An analysis of the plant’s cumulative impact on air quality,
  • A comprehensive analysis of the environmental justice area, and
  • A comparison of that area to the county or other adjacent communities (for facilities proposed within New York City, this includes the entire city) to determine if the impacts to the environmental justice area are disproportionate.

The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible.  If the impacts cannot be avoided or minimized, the applicant must offset the impacts.

The proposed environmental justice regulations state that they are “not intended to … create any right to judicial review involving the compliance or noncompliance of any person with this Part.”  DEC also acknowledges, however, that the Power NY Act “expressly provides for judicial review” of power plant siting determinations.  Thus, it is unclear to what extent, if any, the proposed regulations’ disclaimer precludes judicial review of the Act’s mandatory environmental justice analysis, or whether such limitation would be deemed consistent with the underlying statute.

Comments on both sets of proposed regulations are due by 5 p.m. on March 15, 2012.  Information on filing comments is available here.

For more information, contact Jeffrey Gracer.

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