REFERENCE TITLE: environmental permitting; burdened communities; requirements

State of Arizona

Senate

Fifty-fifth Legislature

Second Regular Session

2022

SB 1429

Introduced by

Senators Mendez: Gonzales, Quezada, Terán; Representatives Andrade, Dalessandro, Hernandez M, Liguori, Salman, Solorio

AN ACT

amending title 49, chapter 1, article 1, Arizona Revised Statutes, by adding section 49-119; relating to the department of environmental quality.

(TEXT OF BILL BEGINS ON NEXT PAGE)

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 49, chapter 1, article 1, Arizona Revised Statutes, is amended by adding section 49-119, to read:

START_STATUTE49-119. Agency permitting; burdened communities; hearings; rules; definitions

A. NOt LATER THAN one hundred twenty DAYS AFTER THE EFFECTIVE DATE OF THIS section, THE DIRECTOR SHALL ADOPT A LIST OF BURDENED COMMUNITIES IN THis STATE. THE DEPARTMENT SHALL UPDATE THE LIST OF BURDENED COMMUNITIES PERIODICALLY AS NEW DATA ON MEDIAN HOUSEHOLD INCOME BECOMES AVAILABLE AND on issuance of a new decennial census.

B. NOt LATER THAN sixty DAYS AFTER THE BURDENED COMMUNITY IS DESIGNATED PURSUANT TO SUBSECTION A OF THIS SECTION, THE GOVERNING BODY OF THE MUNICIPALITY IN WHICH THE BURDENED COMMUNITY IS LOCATED, IN CONSULTATION WITH APPROPRIATE COMMUNITY GROUPS, SHALL DESIGNATE A REPRESENTATIVE OF THE BURDENED COMMUNITY.

C. BEGINNING one hundred eighty DAYS AFTER THE EFFECTIVE DATE OF THIS section, THE DEPARTMENT SHALL NOT GRANT A PERMIT FOR A NEW FACILITY OR FOR THE EXPANSION OF AN EXISTING FACILITY that is LOCATED IN WHOLE OR IN PART IN A BURDENED COMMUNITY UNLESS THE PERMIT APPLICANT FIRST does all of the following:

1. PREPARES A REPORT ASSESSING THE ENVIRONMENTAL IMPACT OF THE PROPOSED NEW FACILITY OR EXPANSION OF an EXISTING FACILITY, INCLUDING ANY CUMULATIVE IMPACTS ON THE BURDENED COMMUNITY, ANY ADVERSE ENVIRONMENTAL EFFECTS THAT CANNOT BE AVOIDED if THE PERMIT is GRANTED AND THE PUBLIC HEALTH IMPACT ON THE BURDENED COMMUNITY OF THE PROPOSED NEW FACILITY OR EXPANSION OF AN EXISTING FACILITY.

2. TRANSMITS THE REPORT REQUIRED TO BE PREPARED PURSUANT TO PARAGRAPH 1 OF THIS SUBSECTION AT LEAST thirty DAYS before THE PUBLIC HEARING REQUIRED PURSUANT TO PARAGRAPH 3 OF THIS SUBSECTION TO THE DEPARTMENT, THE GOVERNING BODY OF THE MUNICIPALITY IN WHICH THE BURDENED COMMUNITY IS LOCATED AND THE DESIGNATED REPRESENTATIVE OF THE BURDENED COMMUNITY.  THE REPORT SHALL BE MADE AVAILABLE TO THE PUBLIC AT LEAST thirty DAYS before THE PUBLIC HEARING REQUIRED PURSUANT TO PARAGRAPH 3 OF THIS SUBSECTION.

3. ORGANIZES AND CONDUCTS A PUBLIC HEARING IN A LOCATION that is CONVENIENT TO ALL INTERESTED PARTIES AS MUCH AS POSSIBLE. THE PERMIT APPLICANT SHALL PUBLISH PUBLIC NOTICES OF THE HEARING IN AT LEAST TWO NEWSPAPERS CIRCULATING WITHIN THE BURDENED COMMUNITY NOT LESS THAN twenty-one DAYS before THE HEARING.  AT LEAST fourteen days before THE DATE SET FOR the HEARING, the permit applicant shall send A COPY OF THE PUBLIC NOTICE TO THE DEPARTMENT, THE GOVERNING BODY OF THE MUNICIPALITY IN WHICH THE BURDENED COMMUNITY IS LOCATED AND THE DESIGNATED REPRESENTATIVE OF THE BURDENED COMMUNITY.  AT THE PUBLIC HEARING, THE PERMIT APPLICANT SHALL PROVIDE CLEAR, ACCURATE AND COMPLETE INFORMATION ABOUT THE PROPOSED NEW FACILITY OR EXPANSION OF AN EXISTING FACILITY AND THE POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS OF THE NEW OR EXPANDED FACILITY.  THE HEARING SHALL PROVIDE AN OPPORTUNITY FOR MEANINGFUL PUBLIC PARTICIPATION BY THE RESIDENTS OF THE BURDENED COMMUNITY.  FOLLOWING THE PUBLIC HEARING, THE COMMISSIONER SHALL CONSIDER THE TESTIMONY PRESENTED AND EVALUATE ANY REVISIONS OR CONDITIONS TO THE PERMIT THAT MAY BE NECESSARY TO REDUCE THE ADVERSE IMPACT TO THE PUBLIC HEALTH OR TO THE ENVIRONMENT IN THE BURDENED COMMUNITY.

D. THE DEPARTMENT SHALL NOT ISSUE A DECISION ON THE PERMIT APPLICATION UNTIL AT LEAST sixty DAYS AFTER THE PUBLIC HEARING HELD PURSUANT TO THIS SECTION.  NOTWITHSTANDING any OTHER LAW or RULE TO THE CONTRARY, THE DEPARTMENT MAY DENY A PERMIT APPLICATION IN A BURDENED COMMUNITY on FINDING THAT THE APPROVAL OF THE PERMIT TOGETHER WITH THE CUMULATIVE IMPACTS POSED BY THE EXISTING CONDITIONS IN THE BURDENED COMMUNITY, INCLUDING CONDITIONS RESULTING FROM PERMITTED ACTIVITIES, WOULD CONSTITUTE AN UNREASONABLE RISK TO THE HEALTH OF THE RESIDENTS OF THE BURDENED COMMUNITY AND TO THE ENVIRONMENT IN THE BURDENED COMMUNITY.

E. WHEN EVALUATING AN APPLICATION FOR A PERMIT PURSUANT TO THIS SECTION, tHE DEPARTMENT SHALL ASSESS THE COMMUNITY SUPPORT FOR THE PROPOSED NEW FACILITY OR EXPANSION OF AN EXISTING FACILITY, AS DEMONSTRATED THROUGH THE PUBLIC HEARING CONDUCTED PURSUANT TO SUBSECTION C OF THIS SECTION, LETTERS OF SUPPORT FOR OR OPPOSITION TO THE PROPOSED NEW OR EXPANDED FACILITY AND ANY ORDINANCE OR RESOLUTION ADOPTED BY THE GOVERNING BODY OF THE MUNICIPALITY IN WHICH THE BURDENED COMMUNITY IS LOCATED.  THE DEPARTMENT SHALL CONSIDER COMMUNITY SUPPORT OR THE LACK of community support IN ITS DECISION TO GRANT OR DENY A PERMIT.

F. IF A PERMIT APPLICANT IS APPLYING FOR MORE THAN ONE PERMIT FOR A PROPOSED NEW FACILITY OR EXPANSION OF AN EXISTING FACILITY, THE PERMIT APPLICANT is REQUIRED TO COMPLY WITH THE PROVISIONS OF THIS SECTION only ONCE, UNLESS THE DEPARTMENT IN ITS DISCRETION DETERMINES THAT MORE THAN ONE PUBLIC HEARING IS NECESSARY DUE TO THE COMPLEXITY OF THE PROPOSED NEW OR EXPANDED FACILITY.  THIS SECTION does not LIMIT THE AUTHORITY OF THE DEPARTMENT TO HOLD OR REQUIRE ADDITIONAL PUBLIC HEARINGS, AS MAY BE REQUIRED BY ANY OTHER LAW or RULE.

G. THE DEPARTMENT MAY ADOPT RULES TO IMPLEMENT THIS SECTION AND MAY ISSUE GUIDANCE ON HOW TO EVALUATE CUMULATIVE IMPACTS PURSUANT TO THIS SECTION.  THE DEPARTMENT SHALL PUBLISH THE GUIDANCE ON ITS WEBSITE.

H. FOR THE PURPOSES OF THIS SECTION:

1. "bURDENED COMMUNITY" MEANS ANY CENSUS TRACT, AS DELINEATED IN THE MOST RECENT United States DECENNIAL CENSUS, THAT IS RANKED IN THE BOTTOM thirty-three PERCENT OF CENSUS TRACTS IN THis STATE FOR MEDIAN ANNUAL HOUSEHOLD INCOME.

2. "CUMULATIVE IMPACTS" MEANS AN EXPOSURE or a PUBLIC HEALTH OR ENVIRONMENTAL RISK, OR OTHER EFFECT OCCURRING IN A SPECIFIC GEOGRAPHICAL AREA, INCLUDING FROM ANY ENVIRONMENTAL POLLUTION EMITTED OR RELEASED ROUTINELY, ACCIDENTALLY OR OTHERWISE FROM ANY SOURCE, AND ASSESSED BASED ON THE COMBINED PAST, PRESENT AND REASONABLY FORESEEABLE EMISSIONS AND DISCHARGES AFFECTING THE GEOGRAPHICAL AREA.  CUMULATIVE IMPACTS shall be evaluated BASED ON ANY APPLICABLE GUIDANCE ISSUED BY DEPARTMENT.

3. "FACILITY" MEANS ANY of the following:

(a) An eLECTRIC GENERATING FACILITY WITH A CAPACITY OF MORE THAN TEN MEGAWATTS.

(b) A rESOURCE RECOVERY FACILITY OR INCINERATOR.

(c) A sLUDGE COMBUSTOR OR INCINERATOR. 

(d) A sEWAGE TREATMENT PLANT WITH A CAPACITY OF MORE THAN fifty MILLION GALLONS PER DAY.

(e) A tRANSFER STATION, RECYCLING CENTER OR OTHER SOLID WASTE FACILITY WITH A COMBINED MONTHLY VOLUME IN EXCESS OF twenty-five TONS.

(f) A lANDFILL, INCLUDING A LANDFILL THAT ACCEPTS ASH, CONSTRUCTION OR DEMOLITION DEBRIS, OR SOLID WASTE.

(g) A mEDICAL WASTE INCINERATOR.

4. "PERMIT":

(a) MEANS ANY PERMIT, REGISTRATION OR LICENSE ISSUED BY THE DEPARTMENT ESTABLISHING THE REGULATORY AND MANAGEMENT REQUIREMENTS FOR AN ONGOING REGULATED ACTIVITY AS AUTHORIZED BY FEDERAL LAW OR APPLICABLE STATE LAWS.

(b) DOES NOT INCLUDE ANY PERMIT ISSUED FOR REMEDIAL ACTIONS RELATING TO A WATER QUALITY ASSURANCE REVOLVING FUND SITE. END_STATUTE