Bill Text: NY S02127 | 2023-2024 | General Assembly | Amended
Bill Title: Establishes an indirect source review for heavy distribution warehouse operations; requires the department of environmental conservation to conduct a study regarding zero-emissions zones.
Spectrum: Partisan Bill (Democrat 14-0)
Status: (Engrossed) 2024-06-05 - referred to environmental conservation [S02127 Detail]
Download: New_York-2023-S02127-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2127--C 2023-2024 Regular Sessions IN SENATE January 18, 2023 ___________ Introduced by Sens. GIANARIS, BRISPORT, FERNANDEZ, GONZALEZ, GOUNARDES, HARCKHAM, HINCHEY, HOYLMAN-SIGAL, KRUEGER, MAY, MYRIE, SALAZAR, SKOUF- IS, WEBB -- read twice and ordered printed, and when printed to be committed 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 Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee and committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee 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. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04869-08-4S. 2127--C 2 1 c. "Heavy distribution warehouse" means a facility that falls under 2 one or more of the following categories: 3 (1) Fulfillment center. A facility whose primary purpose is storage 4 and distribution of goods to consumers or end-users, either directly or 5 through a parcel hub. 6 (2) Parcel hub. A last mile facility or similar facility whose primary 7 purpose is processing or redistribution of goods for delivery directly 8 to consumers or end-users, by moving a shipment from one mode of trans- 9 port to a vehicle with a rated capacity of less than ten thousand 10 pounds. 11 (3) Parcel sorting facility. A facility whose primary purpose is sort- 12 ing or redistribution of goods from a fulfillment center to a parcel 13 hub. 14 d. "Qualifying warehouse" means any heavy distribution warehouse that 15 is fifty thousand square feet or greater, whether as originally 16 constructed or as modified, or which is owned or operated by any person, 17 including for such purposes all affiliates of such person, who in aggre- 18 gate owns or operates five hundred thousand or more square feet of heavy 19 distribution warehouse space in the state. 20 e. "Warehouse modification" means a modification to a warehouse which 21 adds additional warehouse floor space that may be used for warehousing 22 activities, or a change in operations of a warehouse which is likely to 23 result in a significant increase in air pollution. 24 f. "Warehouse operator" means any entity that conducts day-to-day 25 operations at a heavy distribution warehouse, including operations 26 conducted through the use of third-party contractors. For purposes of 27 clause (i) of subparagraph one of paragraph c of subdivision two of this 28 section, warehouse operator shall include affiliates of such warehouse 29 operator. 30 2. a. No later than eighteen months after the effective date of this 31 section, the department shall adopt a program providing for the facili- 32 ty-by-facility review of qualifying warehouses and adoption of measures 33 to reduce air pollution associated with qualifying warehouse operations, 34 including, in a manner not inconsistent with the regulation of indirect 35 sources of pollution contemplated by 42 U.S.C. § 7410(a)(5), mobile 36 sources of pollution, and shall promulgate any appropriate rules and 37 regulations in connection therewith. 38 b. (1) In adopting such program and promulgating such rules and regu- 39 lations, the department shall consider a variety of measures including 40 but not limited to requiring all warehouse operators to implement an air 41 pollution reduction and mitigation plan developed or approved by the 42 department; creating a points system under which warehouse operators 43 must gain a certain number of points, based on the amount of traffic 44 that results from their operations, through mitigation measures such as 45 acquiring and using zero-emissions vehicles, installing and using 46 on-site electric vehicle charging equipment, using alternatives to truck 47 or van trips for incoming or outgoing trips, and/or installing solar 48 electric power generation and battery storage systems; and requiring 49 enhanced mitigation measures for qualifying warehouses located near 50 sensitive receptors including but not limited to schools, daycares, 51 playgrounds, parks, hospitals, senior centers or nursing homes and 52 disadvantaged communities as defined in subdivision five of section 53 75-0101 of this chapter. 54 (2) Such rules and regulations shall provide that, when considering 55 alternatives to truck or van trips for incoming or outgoing trips, the 56 warehouse operator shall, no less than forty-five and no more than nine-S. 2127--C 3 1 ty days prior to implementation of such alternative, inform impacted 2 employees, in writing, of the proposed change. The warehouse operator 3 shall maintain a record of having provided written notice to impacted 4 employees. The written notice shall include, at minimum: descriptions of 5 the vehicles and equipment to be used; anticipated physical requirements 6 of operation of such vehicles and equipment; anticipated date of imple- 7 mentation; and instructions for training and application for transfer to 8 those positions. In addition to the foregoing notice requirements, if 9 employees in the warehouse have an exclusive bargaining unit represen- 10 tative, the warehouse operator will certify that such representative has 11 agreed in writing to any operational changes that impact the scope of 12 the bargaining unit or bargained-for terms of a collective bargaining 13 agreement then in place, prior to utilizing alternatives. 14 c. (1) Under the program, the department shall require any proposed 15 new development of a qualifying warehouse, modification of an existing 16 facility which would result in the facility constituting a qualifying 17 warehouse, or warehouse modification of a qualifying warehouse, to first 18 obtain a permit demonstrating that any additional traffic resulting from 19 construction and operation will not result in a violation of one or more 20 national ambient air quality standards established by the federal envi- 21 ronmental protection agency or, if a violation already exists, will not 22 exacerbate such violation, as determined in a manner consistent with the 23 state implementation plan. In addition, newly constructed qualifying 24 warehouses shall be required to demonstrate that (i) the warehouse oper- 25 ator has not been held by an administrative agency or court of competent 26 jurisdiction to be in violation of any indirect source rule which is not 27 inconsistent with the regulation of indirect sources of pollution 28 contemplated by 42 U.S.C. § 7410(a)(5), including pursuant to this 29 section, or any other federal, state or local air quality standards 30 related to its logistics operations, in the two years prior to the date 31 of application, and (ii) the proposed qualifying warehouse meets LEED 32 silver, gold or platinum standards, or a functionally equivalent stand- 33 ard. 34 (2) The department shall require applicants to submit information 35 necessary to make such a determination pursuant to subparagraph one of 36 this paragraph, including but not limited to, projected average number 37 of daily vehicle trips and primary routes to the facility, a study of 38 potential traffic and congestion impacts, identification of all sensi- 39 tive receptors, including but not limited to, schools, daycares, play- 40 grounds, parks, hospitals, senior centers or nursing homes and disadvan- 41 taged communities as defined by section 75-0101 of this chapter, near 42 the proposed warehouse or near the primary vehicle routes, and an 43 initial air pollution reduction and mitigation plan as provided for in 44 paragraph b of this subdivision. 45 d. Under the program the department shall establish ongoing monitoring 46 and reporting requirements for qualifying warehouse operators. Such 47 monitoring shall include but not be limited to periodic desktop and 48 field audits; contacting warehouse owners and warehouse operators to 49 request further documentation or clarification on submitted reports; and 50 conducting field visits of the warehouse facilities during regular busi- 51 ness hours to verify a facility is following recordkeeping and other 52 applicable requirements. All reports shall be made accessible to the 53 public, in full and unredacted except to the extent necessary to keep 54 personal information confidential, and posted on a publicly available 55 website. Reporting requirements shall include, but not be limited to, 56 annual reporting of:S. 2127--C 4 1 (1) The average daily number of inbound and outbound vehicle trips by 2 vehicle weight and class, and by time of day and day of the week; 3 (2) The average daily vehicle miles traveled for all vehicles making 4 inbound and outbound trips to and from the qualifying warehouse; 5 (3) The average daily vehicle miles traveled and number of inbound and 6 outbound trips for alternative modes of freight; 7 (4) A heat map of the frequency data for trip destinations; 8 (5) The number of jobs at the facility, including drivers and others 9 employed by third-party contractors, with a breakdown of percentage of 10 part-time and full-time employees, independent contractors, unionized 11 and non-union employees; 12 (6) The percentage of vehicles used, specifying on-road vehicles and 13 off-road vehicles as well as weight and vehicle class, that are zero 14 emissions; 15 (7) The number of electric vehicle charging stations installed and 16 actual usage; 17 (8) The number of hydrogen fueling stations installed and actual 18 usage; 19 (9) The number of on-site renewable energy generation systems 20 installed; 21 (10) The number of vehicles used to deliver from the site that are 22 owned by the warehouse operator but leased to a third party, and the 23 proportion of leased vehicles used as compared to vehicles owned by the 24 warehouse operator; 25 (11) The identity of subcontractors who conduct more than ten percent 26 of total delivery vehicle trips from the site, including the entity 27 name, principal officers, business address and contact information, and 28 total number of employees; and 29 (12) Any other information necessary to effectively implement and 30 enforce any rule or regulation promulgated pursuant to this section. 31 3. The department shall impose an annual registration fee for qualify- 32 ing warehouse operators. 33 4. Within eighteen months of the effective date of this section, the 34 department shall complete a study on the feasibility, benefits and costs 35 of implementing low- and zero-emissions designated zones for medium- and 36 heavy-duty vehicles as defined in regulations promulgated pursuant to 37 section 19-0306-b of this title within the state that are designed to 38 lower air pollution, congestion, greenhouse gas emissions, and noise, 39 and to increase safety. The study shall include recommendations for 40 implementation of low- and zero-emissions zones at the state and local 41 level and shall be made available to the public and posted on a publicly 42 available website. In conducting the study, the department shall consid- 43 er: 44 a. Creation of zones restricting deliveries to zero-emissions delivery 45 vehicles only; 46 b. Creation of zones requiring delivery vehicles to meet certain 47 stringent air pollution standards; 48 c. Creation of zones requiring a fee for entry for diesel-powered 49 medium- and heavy-duty vehicles; 50 d. Prioritization of low- and zero-emissions zones within disadvan- 51 taged communities identified under article seventy-five of this chapter; 52 nonattainment zones under the national ambient air quality standards set 53 by the federal environmental protection agency in 42 U.S.C. 7401; and 54 other vulnerable areas including areas proximate to schools, daycares, 55 playgrounds, parks, hospitals, senior centers or nursing homes, and 56 disadvantaged communities as defined by section 75-0101 of this chapter;S. 2127--C 5 1 e. Incentives and enforceable measures for low- and zero-emissions 2 zones, including fees; 3 f. Measures to ensure reinvestment of any revenues from fees in public 4 transit and zero-emissions transportation infrastructure; 5 g. Equity considerations, including preventing unintended regressive 6 cost impacts for low- and moderate-income New Yorkers; and 7 h. Barriers to implementing low- and zero-emissions zones in the state 8 and recommendations for overcoming such barriers. 9 5. a. The provisions of subdivisions one, two and three of this 10 section shall not apply in a city with a population of one million or 11 more which, in consultation with and subject to the review and approval 12 of the department after a public hearing in compliance with the state 13 administrative procedure act, establishes and implements a program by 14 adopting a local law or ordinance to regulate indirect source pollution 15 from qualifying warehouses in a manner not inconsistent with the regu- 16 lation of indirect source pollution contemplated by 42 U.S.C. § 17 7410(a)(5); provided, however, any such municipal indirect source 18 pollution program shall be, in the determination of the department, at 19 least as stringent as the program established under subdivisions one, 20 two and three of this section and all rules and regulations promulgated 21 pursuant thereto. 22 b. The department shall require any city establishing and implementing 23 an indirect source pollution program in accordance with this subdivision 24 to require the program to implement all data collection and reporting 25 requirements contemplated by subdivision two of this section and submit 26 all such data and reporting information to the department no less 27 frequently than every twelve months for review by the department. 28 c. The department shall conduct an annual review of any indirect 29 source pollution program established and implemented pursuant to this 30 subdivision. Such reviews shall evaluate whether, among other relevant 31 matters, such program continues to be at least as stringent as the 32 program established under subdivisions one, two and three of this 33 section. 34 d. In the event that the department determines that a program estab- 35 lished pursuant to this subdivision is not meeting any applicable 36 requirements under this subdivision, the department shall immediately 37 notify such city of the deficiencies and if, in the determination of the 38 department, the city does not take satisfactory corrective action, the 39 department may take any corrective action it deems appropriate, includ- 40 ing but not limited to suspending or terminating the approval contem- 41 plated by paragraph a of this subdivision and enforcing the provisions 42 of this section in such city; provided, however, any indirect source 43 pollution law in effect in a city of one million or more as of the 44 effective date of this section may not be found to be failing to meet 45 such applicable requirements for the one-year period following the 46 effective date of this section. 47 e. The exemption contemplated by this subdivision shall be limited to 48 the regulation of indirect source pollution from qualifying warehouses 49 and may not be construed as an exemption from compliance with any other 50 law, rule, regulation, decision or order. 51 § 2. This act shall take effect on the thirtieth day after it shall 52 have become a law.
