Establishes an indirect source review for certain warehouse operations; requires the department of environmental conservation to conduct a study regarding zero emissions zones.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1718
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 and requires a study be completed on
the feasibility, benefits and costs of implementing low- and zero- emis-
sions designated zones within the state.
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 explosion of e-commerce has not gone without consequence,
particularly in working class communities of color. This industry
remains largely unregulated, as these giant facilities currently require
no public review process or environmental review and can be developed
has-of-right" in industrially zoned areas. More often than not, develop-
ers site these facilities in low-income communities of color, where the
cheapest and largest industrial space is available. Without regulatory
intervention, Environmental Justice ("Er) 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 (CLCPA), requiring 40
percent emissions reductions in absolute terms from 1990 levels by 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 emission s 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:
A.9799 of 2021-2022 (Mitaynes)
STATE AND LOCAL FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
To be determined.
STATE OF NEW YORK
________________________________________________________________________
1718
2023-2024 Regular Sessions
IN ASSEMBLY
January 20, 2023
___________
Introduced by M. of A. MITAYNES, CARROLL, FORREST, GALLAGHER, GONZALEZ-
ROJAS, KELLES, MAMDANI, SEPTIMO, SIMON -- read once and referred to
the Committee on Environmental Conservation
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 article 74 to read as follows:
3 ARTICLE 74
4 INDIRECT SOURCE REVIEW
5 Section 74-0101. Definitions.
6 74-0103. Indirect source review.
7 74-0105. Zero emissions zones study.
8 § 74-0101. Definitions.
9 As used in this article the following terms shall have the following
10 meanings:
11 1. "Heavy distribution warehouse" means a facility that falls under
12 one of the following categories:
13 (a) Fulfillment center. A facility whose primary purpose is storage
14 and distribution of e-commerce goods to consumers or end-users, either
15 directly or through a parcel hub.
16 (b) Parcel hub. A last mile facility or similar facility whose primary
17 purpose is processing or redistribution of goods for delivery directly
18 to consumers or end-users, by moving a shipment from one mode of trans-
19 port to a vehicle with a rated capacity of less than ten thousand
20 pounds.
21 (c) Parcel sorting facility. A facility whose primary purpose is sort-
22 ing or redistribution of goods from a fulfillment center to a parcel
23 hub.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04869-01-3
A. 1718 2
1 2. "Qualifying warehouse" means any heavy distribution warehouse that
2 is fifty thousand square feet or greater.
3 3. "Warehouse operator" means any entity that conducts day-to-day
4 operations at a heavy distribution warehouse, including operations
5 conducted through the use of third-party contractors.
6 § 74-0103. Indirect source review.
7 1. No later than twelve months after the effective date of this
8 section, the department shall promulgate rules and regulations providing
9 for the facility-by-facility review of qualifying warehouses and
10 adoption of measures to reduce air pollution associated with emissions
11 related to qualifying warehouse operations, including mobile source
12 emissions.
13 2. In crafting such rules and regulations, the department shall
14 consider measures including but not limited to requiring all warehouse
15 operators to implement an air emissions reduction and mitigation plan
16 developed or approved by the department; creating a points system under
17 which warehouse operators must gain a certain number of points, based on
18 the amount of truck traffic that results from their operations, through
19 mitigation measures such as acquiring and using zero-emissions vehicles,
20 installing and using on-site electric vehicle charging equipment, using
21 alternatives to truck or van trips for incoming or outgoing trips,
22 and/or installing solar electric power generation and battery storage
23 systems; and requiring enhanced mitigation measures for warehouses
24 located near sensitive receptors including but not limited to schools,
25 daycares, playgrounds, parks, hospitals, senior centers or nursing homes
26 and disadvantaged communities as defined by section 75-0101 of this
27 chapter.
28 3. (a) The department shall require any proposed new development or
29 major modification of a qualifying warehouse to first obtain a permit
30 demonstrating that any additional traffic resulting from its
31 construction and operation will not result in a violation of national
32 ambient air quality standards established by the federal environmental
33 protection agency or, if a violation already exists, will not exacerbate
34 such violation.
35 (b) The department shall require applicants to submit information
36 necessary to make such a determination pursuant to paragraph (a) of this
37 subdivision, including but not limited to, projected average number of
38 daily truck trips and primary routes to the facility, a study of poten-
39 tial traffic and congestion impacts, identification of all sensitive
40 receptors, including but not limited to, schools, daycares, playgrounds,
41 parks, hospitals, senior centers or nursing homes near the proposed
42 warehouse or near the primary truck routes, and an initial emissions
43 reduction and mitigation plan as provided for in subdivision two of this
44 section.
45 4. The department shall establish ongoing monitoring and reporting
46 requirements for warehouse operators. All reports shall be made accessi-
47 ble to the public and posted on a publicly available website. Reporting
48 requirements shall include, but not be limited to, annual reporting of:
49 (a) The average daily number of inbound and outbound vehicle trips by
50 vehicle weight and class, and by time of day and day of the week;
51 (b) The average daily vehicle miles traveled for all vehicles making
52 inbound and outbound trips to and from the qualifying warehouse;
53 (c) The average daily vehicle miles traveled and number of inbound and
54 outbound trips for alternative modes of freight such as cargo bicycles,
55 waterborne transport and drones;
56 (d) A heat map of the frequency data for trip destinations;
A. 1718 3
1 (e) The number of jobs at the facility, including drivers and others
2 employed by third-party contractors, with a breakdown of percentage of
3 part-time and full-time employees, independent contractors, unionized
4 and non-union employees;
5 (f) The percentage of vehicles used, specifying on-road vehicles and
6 off-road vehicles as well as weight and vehicle class, that are zero
7 emissions;
8 (g) The number of electric vehicle charging stations installed and
9 actual usage;
10 (h) The number of hydrogen fueling stations installed and actual
11 usage;
12 (i) The number of on-site renewable energy generation systems
13 installed; and
14 (j) Any other information necessary to effectively implement and
15 enforce any rule or regulation promulgated pursuant to this section.
16 5. The department shall impose an annual registration fee for ware-
17 house operators, and institute additional fees for warehouse operators
18 that fail to submit an approved plan pursuant to subdivision two of this
19 section or to otherwise comply with any rule or regulation promulgated
20 pursuant to this section. Such fees shall be determined by the commis-
21 sioner.
22 § 74-0105. Zero emissions zones study.
23 Within twelve months of the effective date of this section, the
24 department shall complete a study on the feasibility, benefits and costs
25 of implementing low- and zero-emissions designated zones for medium- and
26 heavy-duty vehicles within the state that are designed to lower air
27 pollution, congestion, greenhouse gas emissions, and noise, and to
28 increase safety. The study shall include recommendations for implementa-
29 tion of low- and zero-emissions zones at the state and local level and
30 shall be made available to the public and posted on a publicly available
31 web site. In conducting the study, the department shall consider:
32 1. Creation of zones restricting deliveries to zero-emissions delivery
33 vehicles only;
34 2. Creation of zones requiring delivery vehicles to meet certain
35 stringent emissions standards;
36 3. Creation of zones requiring a fee for entry for diesel-powered
37 medium- and heavy-duty vehicles;
38 4. Prioritization of low- and zero-emissions zones within disadvan-
39 taged communities identified under article seventy-five of this chapter;
40 nonattainment zones under the national ambient air quality standards set
41 by the federal environmental protection agency; and other vulnerable
42 areas including areas proximate to schools, hospitals, and environ-
43 mentally sensitive locations;
44 5. Incentives and enforceable measures for low- and zero-emissions
45 zones, including fees;
46 6. Measures to ensure reinvestment of any revenues from fees in public
47 transit and zero-emissions transportation infrastructure;
48 7. Equity considerations, including preventing unintended regressive
49 cost impacts for low- and moderate-income New Yorkers; and
50 8. Barriers to implementing low- and zero-emissions zones in the state
51 and recommendations for overcoming such barriers.
52 § 2. This act shall take effect immediately.
