AN ACT to require consideration of the cumulative impact of certain facilities PROPOSED to be located in low‑income communities, prior to issuance of permits or certifications for such facilities.

The General Assembly of North Carolina enacts:

SECTION 1.(a)  Article 7 of Chapter 143B of the General Statutes is amended by adding a new section to read:

§ 143B‑279.18.  Consideration of cumulative impacts required for permitting of facilities proposed to be located in burdened communities.

(a)        Notwithstanding any other provision of law, neither the Department of Environmental Quality, nor the Environmental Management Commission, shall issue a permit for a new facility, or for the expansion of an existing facility, located in whole or in part in a burdened community, except in compliance with the requirements of this section.

(b)        An applicant for a permit for a new facility, or for the expansion of an existing facility, located in whole or in part in a burdened community, shall do all of the following:

(1)        Prepare 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 should the permit be granted, and the public health impact on the burdened community of the proposed new facility or expansion of an existing facility.

(2)        Transmit the report required to be prepared pursuant to subdivision (1) of this subsection at least 30 days in advance of the public hearing required pursuant to subdivision (3) of this subsection to the Department, the governing body for the unit of local government 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 30 days prior to the public hearing required pursuant to subdivision (3) of this subsection.

(3)        Organize and conduct a public hearing at a location convenient to the burdened community. The applicant shall publish public notices of the hearing in at least two newspapers circulating within the burdened community not less than 21 days prior to the hearing. At least 14 days prior to the date set for such hearing, a copy of the public notice shall be sent to the Department, the governing body for the unit of local government 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 residents of the burdened community. Following the public hearing, the Department or Commission, as applicable, 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.

(c)        The Department or Commission, as applicable, shall not issue a decision on the permit application until at least 60 days after the public hearing held pursuant to subsection (b) this section. Notwithstanding any other provision of law to the contrary, the Department or Commission, as applicable, may deny a permit application for a new or expanded facility to be located in a burdened community upon a finding that approval of the permit would, together with the cumulative impacts posed by the existing conditions, including conditions resulting from other permitted activities, in the burdened community, constitute an unreasonable risk to the health of the residents of the burdened community and to the environment in the burdened community.

(d)       The Department or Commission, as applicable, when evaluating an application for a permit pursuant to this section, 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 this section, any public comment received, and any ordinance or resolution adopted by the governing body of the unit of local government in which the burdened community is located. The Department or Commission, as applicable, shall consider community support, or the lack thereof, in its decision to grant or deny a permit.

(e)        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 shall only be required to comply with the provisions of this section once, unless the Department or Commission, as applicable, in its discretion, determines that more than one public hearing is necessary due to the complexity of the proposed new or expanded facility. Nothing in this section shall be construed to limit the authority of the Department or Commission, as applicable, to hold or require additional public hearings, as may be required by other law.

(f)        The following definitions apply in this section:

(1)        Burdened community. – A census tract, as designated by the most recent census of the U.S. Census Bureau, that is ranked in the bottom thirty‑three percent (33%) of census tracts in the State for median annual household income.

(2)        Cumulative impacts. – An exposure, 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 rules adopted by the Department.

(3)        Facility. – Any of the following facilities required to be permitted pursuant to Article 9 of Chapter 130A of the General Statutes or Article 21 or 21B of Chapter 143 of the General Statutes: (i) a resource recovery facility or incinerator, (ii) a transfer station, recycling center, or other solid waste facility with a combined monthly volume in excess of 25 tons, (iii) a landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste, (iv) a medical waste incinerator, (v) a sludge combustor or incinerator, (vi) a sewage treatment plant with a capacity of more than 50 million gallons per day, or (vii) a major source of air pollution, as defined by the federal Clean Air Act, 42 U.S.C. § 7401, et seq.

(4)        Permit. – Any permit issued by the Department of Environmental Quality or Commission, as applicable, establishing the regulatory and management requirements for an ongoing regulated activity for facilities described in subdivision (3) of this subsection as authorized or required by federal law or State law.

SECTION 1.(b)  No later than 180 days after the effective date of this act, the Department of Environmental Quality shall adopt rules to implement the requirements of G.S. 143B‑279.18, as enacted by Section 1 of this act, and specifically:

(1)        Identify each burdened community in the State, as that term is defined under G.S. 143B‑279.18, as enacted by Section 1 of this act. The Department shall amend the rule identifying burdened communities periodically as new data on median annual household income becomes available and upon promulgation by the federal government of a new federal decennial census.

(2)        Require each unit of local government within which a burdened community is located, within 60 days of identification of such communities by rules adopted by the Department, to designate a representative of the burdened community after consultation with appropriate groups in the burdened community.

SECTION 2.  G.S. 62‑110.1 is amended by adding a new subsection to read:

(d1)    In acting upon any petition for the construction of any facility for the generation of electricity with a capacity over 10 megawatts, or expansion thereof, proposed to be located in a burdened community, the Commission, in coordination with the Department of Environmental Quality, shall evaluate and consider the cumulative impacts posed by the proposed facility, or expansion thereof, on the burdened community. If the Commission, in coordination with the Department, determines the cumulative impacts constitute an unreasonable risk to the health of the residents of the burdened community and to the environment in the burdened community, the Commission shall deny the certificate. For purposes of this subsection, the following definitions apply:

(1)        Burdened community. – A census tract, as designated by the most recent census of the U.S. Census Bureau, that is ranked in the bottom thirty‑three percent (33%) of census tracts in the State for median annual household income and identified as such in rules adopted by the Department of Environmental Quality.

(2)        Cumulative impacts. – An exposure, 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.

SECTION 3.  This act is effective when it becomes law, except that G.S. 143B‑279.18, as enacted by Section 1 of this act, and G.S. 62‑110.1(d1), as enacted by Section 2 of this act, become effective January 1, 2024, and apply to applications for permits or certificates submitted on or after that date.