After more than a year of work, MassDEP has proposed regulations that would require applicants to perform cumulative impact analysis prior to issuance of certain air emissions permits. The regulations were required by the environmental justice provisions of the 2021 Climate Roadmap Act.
The requirement to perform a CIA will apply to any person seeking a comprehensive plan approval in or within one mile of any environmental justice community as well as to any project requiring a comprehensive plan approval that is within five miles of an EJ community, if the project will be a major source under MassDEP rules.
Key requirements include:
- Enhanced public notice and involvement requirements
- A thorough assessment of existing community conditions
- Air quality dispersion modeling
- Risk characterization for air toxics
- Overall evaluation of a project’s cumulative impacts, including “any mitigation measures that [the proponent] will implement to reduce or minimize the cumulative impacts of the proposed project.”
There are lot of important issues here, but I’ll note two for those potentially subject to these regulations. First, the proposed regulations state that MassDEP “shall not propose to approve” any application unless the cumulative cancer and non-cancer risks are less than the regulatory limits. However, what if the risk exceeded the threshold even absent the new project and the new project proposes to reduce the cumulative risk?
This first question pretty much frames the second – how will MassDEP review proponents’ analysis of potential mitigation measures? Will it essentially create a virtual allowance system, in which proponents must buy emissions reductions that will be greater than the emissions of the project itself as a prerequisite to approval?
At a broader level, it’s reasonable to ask whether the cost of mitigating cumulative impacts should be borne entirely by the new project. What if it’s a mostly clean project that provides a lot of benefits, including to the EJ community that the regulations are intended to protect? This isn’t an easy problem to solve, given that air plan approvals are good for the life of a project; there is no requirement to renew the approval at any time.
There are a lot of other issues that those potentially subject to the CIA regulations should review, including the requirements for doing air dispersion modeling and how the air toxics risk characterizations must be conducted. For those interested in commenting on the proposal, MassDEP will hold virtual public hearings on March 7 and 9. The public comment period ends April 7, 2023.
To someone like me, who started doing these about 50 years ago, this proposal isn’t about cumulative impact analysis. It’s merely adding what the applicant proposes to what’s already there (what we called “baseline”). Nothing new there-and unavoidable. “Cumulative Impact Analysis” traditionally included adding what the applicant proposes to what’s already there AND what else has a high probability of being implemented nearby (like other permitted but not-yet built sources).
BTW, how about a definition of “minorities”? Seems like that’s pretty important…