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A01718 Summary:

BILL NOA01718C
 
SAME ASSAME AS S02127-C
 
SPONSORMitaynes
 
COSPNSRCarroll, Forrest, Gallagher, Gonzalez-Rojas, Kelles, Mamdani, Septimo, Simon, Reyes, Epstein, Rozic, Burgos, Meeks, Raga, Anderson, Thiele, Shrestha, Levenberg
 
MLTSPNSR
 
Add §19-0333, En Con L
 
Establishes an indirect source review for heavy distribution warehouse operations; requires the department of environmental conservation to conduct a study regarding zero-emissions zones.
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A01718 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1718C
 
SPONSOR: Mitaynes
  TITLE OF BILL: An act to amend the environmental conservation law, in relation to establishing an indirect source review for certain warehouse operations   PURPOSE: The purpose of this legislation is to establish an indirect source rule to regulate air quality and emissions from vehicles associated with the operations of certain heavy distribution warehouse facilities, to expe- dite attainment of federal air quality standards and to ensure compli- ance with state mandates under the Climate Leadership and Community Protection Act.   SUMMARY OF PROVISIONS: Section 1 defines key terms and amends Article 74 of the Environmental Conservation Law to require that the Department of Environmental Conser- vation promulgate rules providing for the facility-by-facility review of certain warehouses, require that any proposed new development or major modification of a qualifying warehouse to first obtain a permit demon- strating that associated construction and operation will not result in or exacerbate a violation of Federal National Ambient Air Quality Stand- ards ("NAAQS"), specify ongoing monitoring and reporting requirements for qualifying warehouse operators, require a study be completed on the feasibility, benefits and costs of implementing low- and zero- emissions designated zones within the state, and allow a city with a population of one million or more to establish an indirect source rule approved by the Department of Environmental Conservation that is at least as stringent as the state rule. Section 2 sets the effective date.   JUSTIFICATION: Across the United States, e-commerce sales have skyrocketed since the start of the COVID-19 pandemic - both in terms of absolute volume, and as a proportion of total retail sales. E-commerce sales in the 3rd Quarter of 2020 grew by 36.1% year-overyear, and have only continued to grow rapidly every quarter since (US Census Bureau - Quarterly Retail E-Commerce Sales report). Such a rapid explo- sion of e-commerce has not gone without consequence, particularly in working class communities of color. This industry remains largely unreg- ulated, as these giant facilities currently require no public review process or environmental review and can be developed "as-of-right" in industrially zoned areas. More often than not, developers site these facilities in low-income communities of color, where the cheapest and largest industrial space is available. Without regulatory intervention, Environmental Justice ("EJ") communities are expected to continue to bear the brunt of increased e-commerce consumption for the foreseeable future. In Red Hook, Brooklyn - home to upwards of 6,000 New York City Housing Authority residents - five such facilities totaling 2 million sq ft are expected to come online over a period of one year, with no public notice or input or environmental review. These facilities are expected to bring a range of health and environmental hazards - including traffic, congestion, road safety, pollution and emissions impacts - to a front- line environmental justice community that has already had to weather extreme flooding, extreme weather and infrastructure degradation - some of the worst effects of climate change. New York State committed to dramatic emissions reductions in the 2019 Climate Leadership and Community Protection Act percent emissions reductions in absolute terms(CLCPA), from 1990requiring levels by40 2030 and 85 percent emissions reductions by 2050. The CLCPA also committed to ensuring that disadvantaged communities receive no less than 35 percent of benefits from the state's climate programs. However, the prolifer- ation of e-commerce facilities will both increase emissions and further concentrate negative environmental impacts in EJ communities, threaten- ing the intended progress of the CLCPA. In addition, nine counties in New York are part of a multi-state area that is currently in nonattainment for ozone. As a result, New York must come into compliance with federal ozone standards as expeditiously as practicable, and transportation is responsible for a significant portion of New York's ozone pollution. New York State has the authority to adopt an Indirect Source Rule (ISR). An "indirect source" is a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution, such as last-mile or other high traffic warehouses. While the Clean Air Act generally preempts states' ability to directly regulate motor vehicle emissions, an ISR is a tool that New York can use to reduce vehicle emissions asso- ciated with facilities or uses that are particularly vehicle intensive. New York Department of Conservation (NYSDEC) has not recently exercised this authority in its air quality plans. The rapid proliferation of vehicle-intensive e-commerce, in addition to New York State's ongoing noncompliance with federal air quality stand- ards, suggests that an ISR for warehouses and other indirect sources is necessary to improve air quality and protect public health, particularly in EJ communities.   LEGISLATIVE HISTORY: 2023: S.2127 died in environmental conservation; A.1718 died in environ- mental conservation 2022: A.9799 died in Environmental Conservation   STATE AND LOCAL FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately.
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A01718 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1718--C
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 20, 2023
                                       ___________
 
        Introduced  by M. of A. MITAYNES, CARROLL, FORREST, GALLAGHER, GONZALEZ-
          ROJAS, KELLES, MAMDANI, SEPTIMO, SIMON, REYES, EPSTEIN, ROZIC, BURGOS,
          MEEKS, RAGA, ANDERSON, THIELE, SHRESTHA, LEVENBERG --  read  once  and
          referred  to  the Committee on Environmental Conservation -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- recommitted to  the  Committee  on  Environmental
          Conservation  in  accordance with Assembly Rule 3, sec. 2 -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- again reported from said  committee  with  amend-
          ments, ordered reprinted as amended and recommitted to said committee
 
        AN  ACT  to  amend  the  environmental  conservation law, in relation to
          establishing an indirect source review  for  certain  warehouse  oper-
          ations
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The environmental conservation law is amended by  adding  a
     2  new section 19-0333 to read as follows:
     3  § 19-0333. Indirect source review for heavy distribution warehouses.
     4    1.  As used in this section the following terms shall have the follow-
     5  ing meanings:
     6    a. "Affiliate" means, with respect to any specified person,  a  person
     7  that  directly,  or  indirectly  through  one  or  more  intermediaries,
     8  controls, is controlled by, or is under common control with such person.
     9    b. "Control", including the terms "controlling", "controlled  by"  and
    10  "under common control with", means the possession, directly or indirect-
    11  ly, of the power to direct or cause the direction of (1) the  management
    12  and policies of a person, (2) the operation of a person, or (3) substan-
    13  tially  all  of the assets of a person, whether through the ownership of
    14  voting securities, by contract,  or  otherwise.
    15    c.  "Heavy  distribution  warehouse" means a facility that falls under
    16  one or more of the following categories:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04869-09-4

        A. 1718--C                          2
 
     1    (1) Fulfillment center. A facility whose primary  purpose  is  storage
     2  and  distribution of goods to consumers or end-users, either directly or
     3  through a parcel hub.
     4    (2) Parcel hub. A last mile facility or similar facility whose primary
     5  purpose  is  processing or redistribution of goods for delivery directly
     6  to consumers or end-users, by moving a shipment from one mode of  trans-
     7  port  to  a  vehicle  with  a  rated  capacity of less than ten thousand
     8  pounds.
     9    (3) Parcel sorting facility. A facility whose primary purpose is sort-
    10  ing or redistribution of goods from a fulfillment  center  to  a  parcel
    11  hub.
    12    d.  "Qualifying warehouse" means any heavy distribution warehouse that
    13  is  fifty  thousand  square  feet  or  greater,  whether  as  originally
    14  constructed or as modified, or which is owned or operated by any person,
    15  including for such purposes all affiliates of such person, who in aggre-
    16  gate owns or operates five hundred thousand or more square feet of heavy
    17  distribution warehouse space in the state.
    18    e. "Warehouse  modification" means a modification to a warehouse which
    19  adds  additional  warehouse floor space that may be used for warehousing
    20  activities, or a change in operations of a warehouse which is likely  to
    21  result in a significant increase in air pollution.
    22    f.  "Warehouse  operator"  means  any  entity that conducts day-to-day
    23  operations at  a  heavy  distribution  warehouse,  including  operations
    24  conducted  through  the  use of third-party contractors. For purposes of
    25  clause (i) of subparagraph one of paragraph c of subdivision two of this
    26  section, warehouse operator shall include affiliates of  such  warehouse
    27  operator.
    28    2.  a.  No later than eighteen months after the effective date of this
    29  section, the department shall adopt a program providing for the  facili-
    30  ty-by-facility  review of qualifying warehouses and adoption of measures
    31  to reduce air pollution associated with qualifying warehouse operations,
    32  including, in a manner not inconsistent with the regulation of  indirect
    33  sources  of  pollution  contemplated  by  42 U.S.C. § 7410(a)(5), mobile
    34  sources of pollution, and shall promulgate  any  appropriate  rules  and
    35  regulations in connection therewith.
    36    b.  (1) In adopting such program and promulgating such rules and regu-
    37  lations, the department shall consider a variety of  measures  including
    38  but not limited to requiring all warehouse operators to implement an air
    39  pollution  reduction  and  mitigation  plan developed or approved by the
    40  department; creating a points system  under  which  warehouse  operators
    41  must  gain  a  certain  number of points, based on the amount of traffic
    42  that results from their operations, through mitigation measures such  as
    43  acquiring  and  using  zero-emissions  vehicles,  installing  and  using
    44  on-site electric vehicle charging equipment, using alternatives to truck
    45  or van trips for incoming or outgoing  trips,  and/or  installing  solar
    46  electric  power  generation  and  battery storage systems; and requiring
    47  enhanced mitigation measures  for  qualifying  warehouses  located  near
    48  sensitive  receptors  including  but  not  limited to schools, daycares,
    49  playgrounds, parks, hospitals,  senior  centers  or  nursing  homes  and
    50  disadvantaged  communities  as  defined  in  subdivision five of section
    51  75-0101 of this chapter.
    52    (2) Such rules and regulations shall provide  that,  when  considering
    53  alternatives  to  truck or van trips for incoming or outgoing trips, the
    54  warehouse operator shall, no less than forty-five and no more than nine-
    55  ty days prior to implementation of  such  alternative,  inform  impacted
    56  employees,  in  writing,  of the proposed change. The warehouse operator

        A. 1718--C                          3
 
     1  shall maintain a record of having provided written  notice  to  impacted
     2  employees. The written notice shall include, at minimum: descriptions of
     3  the vehicles and equipment to be used; anticipated physical requirements
     4  of  operation of such vehicles and equipment; anticipated date of imple-
     5  mentation; and instructions for training and application for transfer to
     6  those positions.  In addition to the foregoing notice  requirements,  if
     7  employees  in  the warehouse have an exclusive bargaining unit represen-
     8  tative, the warehouse operator will certify that such representative has
     9  agreed in writing to any operational changes that impact  the  scope  of
    10  the  bargaining  unit  or bargained-for terms of a collective bargaining
    11  agreement then in place, prior to utilizing alternatives.
    12    c. (1) Under the program, the department shall  require  any  proposed
    13  new  development  of a qualifying warehouse, modification of an existing
    14  facility which would result in the facility  constituting  a  qualifying
    15  warehouse, or warehouse modification of a qualifying warehouse, to first
    16  obtain a permit demonstrating that any additional traffic resulting from
    17  construction and operation will not result in a violation of one or more
    18  national  ambient air quality standards established by the federal envi-
    19  ronmental protection agency or, if a violation already exists, will  not
    20  exacerbate such violation, as determined in a manner consistent with the
    21  state  implementation  plan.  In  addition, newly constructed qualifying
    22  warehouses shall be required to demonstrate that (i) the warehouse oper-
    23  ator has not been held by an administrative agency or court of competent
    24  jurisdiction to be in violation of any indirect source rule which is not
    25  inconsistent with  the  regulation  of  indirect  sources  of  pollution
    26  contemplated  by  42  U.S.C.  §  7410(a)(5),  including pursuant to this
    27  section, or any other federal, state  or  local  air  quality  standards
    28  related  to its logistics operations, in the two years prior to the date
    29  of application, and (ii) the proposed qualifying  warehouse  meets  LEED
    30  silver,  gold or platinum standards, or a functionally equivalent stand-
    31  ard.
    32    (2) The department shall  require  applicants  to  submit  information
    33  necessary  to  make such a determination pursuant to subparagraph one of
    34  this paragraph, including but not limited to, projected  average  number
    35  of  daily  vehicle  trips and primary routes to the facility, a study of
    36  potential traffic and congestion impacts, identification of  all  sensi-
    37  tive  receptors,  including but not limited to, schools, daycares, play-
    38  grounds, parks, hospitals, senior centers or nursing homes and disadvan-
    39  taged communities as defined by section 75-0101 of  this  chapter,  near
    40  the  proposed  warehouse  or  near  the  primary  vehicle routes, and an
    41  initial air pollution reduction and mitigation plan as provided  for  in
    42  paragraph b of this subdivision.
    43    d. Under the program the department shall establish ongoing monitoring
    44  and  reporting  requirements  for qualifying warehouse operators.   Such
    45  monitoring shall include but not be  limited  to  periodic  desktop  and
    46  field  audits;  contacting  warehouse  owners and warehouse operators to
    47  request further documentation or clarification on submitted reports; and
    48  conducting field visits of the warehouse facilities during regular busi-
    49  ness hours to verify a facility is  following  recordkeeping  and  other
    50  applicable  requirements.    All reports shall be made accessible to the
    51  public, in full and unredacted except to the extent  necessary  to  keep
    52  personal  information  confidential,  and posted on a publicly available
    53  website. Reporting requirements shall include, but not  be  limited  to,
    54  annual reporting of:
    55    (1)  The average daily number of inbound and outbound vehicle trips by
    56  vehicle weight and class, and by time of day and day of the week;

        A. 1718--C                          4
 
     1    (2) The average daily vehicle miles traveled for all  vehicles  making
     2  inbound and outbound trips to and from the qualifying warehouse;
     3    (3) The average daily vehicle miles traveled and number of inbound and
     4  outbound trips for alternative modes of freight;
     5    (4) A heat map of the frequency data for trip destinations;
     6    (5)  The  number of jobs at the facility, including drivers and others
     7  employed by third-party contractors, with a breakdown of  percentage  of
     8  part-time  and  full-time  employees, independent contractors, unionized
     9  and non-union employees;
    10    (6) The percentage of vehicles used, specifying on-road  vehicles  and
    11  off-road  vehicles  as  well  as weight and vehicle class, that are zero
    12  emissions;
    13    (7) The number of electric vehicle  charging  stations  installed  and
    14  actual usage;
    15    (8)  The  number  of  hydrogen  fueling  stations installed and actual
    16  usage;
    17    (9)  The  number  of  on-site  renewable  energy  generation   systems
    18  installed;
    19    (10)  The  number  of  vehicles used to deliver from the site that are
    20  owned by the warehouse operator but leased to a  third  party,  and  the
    21  proportion  of leased vehicles used as compared to vehicles owned by the
    22  warehouse operator;
    23    (11) The identity of subcontractors who conduct more than ten  percent
    24  of  total  delivery  vehicle  trips  from the site, including the entity
    25  name, principal officers, business address and contact information,  and
    26  total number of employees; and
    27    (12)  Any  other  information  necessary  to effectively implement and
    28  enforce any rule or regulation promulgated pursuant to this section.
    29    3. The department shall impose an annual registration fee for qualify-
    30  ing warehouse operators.
    31    4. Within eighteen months of the effective date of this  section,  the
    32  department shall complete a study on the feasibility, benefits and costs
    33  of implementing low- and zero-emissions designated zones for medium- and
    34  heavy-duty  vehicles  as  defined in regulations promulgated pursuant to
    35  section 19-0306-b of this title within the state that  are  designed  to
    36  lower  air  pollution,  congestion, greenhouse gas emissions, and noise,
    37  and to increase safety. The  study  shall  include  recommendations  for
    38  implementation  of  low- and zero-emissions zones at the state and local
    39  level and shall be made available to the public and posted on a publicly
    40  available website. In conducting the study, the department shall consid-
    41  er:
    42    a. Creation of zones restricting deliveries to zero-emissions delivery
    43  vehicles only;
    44    b. Creation of zones  requiring  delivery  vehicles  to  meet  certain
    45  stringent air pollution standards;
    46    c.  Creation  of  zones  requiring  a fee for entry for diesel-powered
    47  medium- and heavy-duty vehicles;
    48    d. Prioritization of low- and zero-emissions  zones  within  disadvan-
    49  taged communities identified under article seventy-five of this chapter;
    50  nonattainment zones under the national ambient air quality standards set
    51  by  the  federal  environmental protection agency in 42 U.S.C. 7401; and
    52  other vulnerable areas including areas proximate to  schools,  daycares,
    53  playgrounds,  parks,  hospitals,  senior  centers  or nursing homes, and
    54  disadvantaged communities as defined by section 75-0101 of this chapter;
    55    e. Incentives and enforceable measures  for  low-  and  zero-emissions
    56  zones, including fees;

        A. 1718--C                          5
 
     1    f. Measures to ensure reinvestment of any revenues from fees in public
     2  transit and zero-emissions transportation infrastructure;
     3    g.  Equity  considerations, including preventing unintended regressive
     4  cost impacts for low- and moderate-income New Yorkers; and
     5    h. Barriers to implementing low- and zero-emissions zones in the state
     6  and recommendations for overcoming such barriers.
     7    5. a. The provisions of  subdivisions  one,  two  and  three  of  this
     8  section  shall  not  apply in a city with a population of one million or
     9  more which, in consultation with and subject to the review and  approval
    10  of  the  department  after a public hearing in compliance with the state
    11  administrative procedure act, establishes and implements  a  program  by
    12  adopting  a local law or ordinance to regulate indirect source pollution
    13  from qualifying warehouses in a manner not inconsistent with  the  regu-
    14  lation  of  indirect  source  pollution  contemplated  by  42  U.S.C.  §
    15  7410(a)(5);  provided,  however,  any  such  municipal  indirect  source
    16  pollution  program  shall be, in the determination of the department, at
    17  least as stringent as the program established  under  subdivisions  one,
    18  two  and three of this section and all rules and regulations promulgated
    19  pursuant thereto.
    20    b. The department shall require any city establishing and implementing
    21  an indirect source pollution program in accordance with this subdivision
    22  to require the program to implement all data  collection  and  reporting
    23  requirements  contemplated by subdivision two of this section and submit
    24  all such data and  reporting  information  to  the  department  no  less
    25  frequently than every twelve months for review by the department.
    26    c.  The  department  shall  conduct  an  annual review of any indirect
    27  source pollution program established and implemented  pursuant  to  this
    28  subdivision.   Such reviews shall evaluate whether, among other relevant
    29  matters, such program continues to be  at  least  as  stringent  as  the
    30  program  established  under  subdivisions  one,  two  and  three of this
    31  section.
    32    d. In the event that the department determines that a  program  estab-
    33  lished  pursuant  to  this  subdivision  is  not  meeting any applicable
    34  requirements under this subdivision, the  department  shall  immediately
    35  notify such city of the deficiencies and if, in the determination of the
    36  department,  the  city does not take satisfactory corrective action, the
    37  department may take any corrective action it deems appropriate,  includ-
    38  ing  but  not  limited to suspending or terminating the approval contem-
    39  plated by paragraph a of this subdivision and enforcing  the  provisions
    40  of  this  section  in  such city; provided, however, any indirect source
    41  pollution law in effect in a city of one million or    more  as  of  the
    42  effective  date  of  this section may not be found to be failing to meet
    43  such applicable requirements  for  the  one-year  period  following  the
    44  effective date of this section.
    45    e.  The exemption contemplated by this subdivision shall be limited to
    46  the regulation of indirect source pollution from  qualifying  warehouses
    47  and  may not be construed as an exemption from compliance with any other
    48  law, rule, regulation, decision or order.
    49    § 2. This act shall take effect on the thirtieth day  after  it  shall
    50  have become a law.
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