Massachusetts & New York Cumulative Impact Rules

Cumulative impacts, in the context of environmental justice (EJ), refer to a proposed project’s direct environmental impact across all media (air, water, waste, etc.) in conjunction with other nearby sources and existing social stressors in the surrounding communities. This impact includes direct, indirect, and cumulative effects.

A cumulative impact assessment requires a holistic evaluation that considers and characterizes an action’s impact on a population over time regarding the potential cause and exacerbation of adverse outcomes. From an EJ perspective, these assessments identify and address health inequalities in underserved communities.

The introduction of cumulative impact assessments at the state level follows the Biden administration’s signing of Executive Orders 13985 and 14008. These orders served to encourage the federal government to address health inequalities related to environmental factors that may be disproportionally impacting underserved communities. Following the signing of these orders, some state governing bodies have introduced legislation related to such assessments.

Massachusetts Cumulative Impact Analysis in Comprehensive Plan Approvals

In response to Chapter 8 of the Acts of 2021 Section 102C, The Massachusetts Department of Environmental Protection (MassDEP) proposed to amend 310 CMR 7.00 Air Pollution Control. The Act requires the Massachusetts Environmental Policy Act to require the submission of environmental impact reports for any project that had the potential to cause damage to the environment and was located near an EJ area. It also requires MassDEP to consider cumulative impacts on EJ populations from certain air permits and approvals.

The proposed amendment will establish section 310 CMR 7.02(14) Cumulative Impact Analysis (CIA), which will require a cumulative impact analysis to be completed “for Comprehensive Plan Approval (CPA) applications for facilities located in or near an environmental justice (EJ) population

Applicants are required to increase the outreach to and the involvement of EJ populations, assess existing conditions, and identify the cumulative impacts of a project. Existing conditions will be determined by evaluating whether a Project has the potential to exacerbate any of the existing 33 air quality/climate, health, and socioeconomic indicators and identifying nearby regulated facilities and sensitive receptors. Additionally, air dispersion modeling and assessment of criteria and air toxics must be conducted, as well as evaluating stationary and mobile sources from motor vehicles owned or leased by the facility. The project’s impacts must be summarized, and consideration of whether the impacts will affect existing health conditions and air quality in EJ populations must occur.  Lastly, a project must address whether mitigation measures can be taken to reduce impacts from the project.

After submittal to the Mass DEP, the permit application and cumulative impact assessment will be available for public review and comments. Projects are prohibited from posing cumulative cancer risks that exceed “an excess lifetime cancer risk equal to ten in one million” or to exceed cumulative non-cancer risks of “a hazard index equal to one.”

New York’s “Cumulative Impacts” Law

Following the passing of Senate Bill S8830 and Assembly Bill A2103D, New York Governor Kathy Hochul signed the Cumulative Impacts bill into law, stipulating, with the Legislature, that the law should be amended to narrow its scope significantly and strike a balance between supporting the development of critical infrastructure needed in the state, and ensuring EJ communities are not disproportionately impacted by the project. The law will amend the State Environmental Quality Review Act (SEQRA) to require a CIA for projects near disadvantaged communities. Under this law, the New York State Department of Environmental Conservation (NYSDEC) cannot approve or renew a permit if it may, directly or indirectly, cause or contribute to a disproportionate, inequitable, or both disproportionate and inequitable pollution burden on a disadvantaged community.

Facilities will be required to prepare an existing burden report to identify baseline environmental monitoring data and facilitate tracking of what may impact health or the environment. The burden report must be prepared within two years of the application and must identify some of the following:

• Ambient concentrations of both regulated and unregulated toxic air pollutants.
• Traffic volume
• Noise and odor
• Exposure to lead paint
• Exposure to contaminated drinking water

The law is set to go into effect in June of 2023, pending any amendments.

What happens now?

In response to the Biden administration’s push for agencies and permit applicants to conduct cumulative impact assessments ahead of its own cumulative impacts framework expected in the Summer of 2023, the states which are more actively implementing environmental justice will continue to propose new legislation in anticipation of the finalized federal guidance. The legislation, and the pace at which the legislation will be adopted, will vary between states.

ALL4 will be following the progress of legislation for any developments. If you have questions about how this may affect your facility, please reach out to your ALL4 Project Manager.