S T A T E O F N E W Y O R K
________________________________________________________________________
4378--B
2021-2022 Regular Sessions
I N S E N A T E
February 4, 2021
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Introduced by Sens. BRISPORT, BIAGGI, HINCHEY, HOYLMAN, JACKSON, KRUEG-
ER, MAY, RAMOS, RIVERA, SALAZAR -- read twice and ordered printed, and
when printed to be committed to the Committee on Environmental Conser-
vation -- reported favorably from said committee, ordered to first and
second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading -- recom-
mitted 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
AN ACT to amend the environmental conservation law, in relation to
establishing the "pollution justice act of 2022" and implementing a
plan to replace peaker plants with renewable energy systems
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "pollution
justice act of 2022".
§ 2. Article 19 of the environmental conservation law is amended by
adding a new title 13 to read as follows:
TITLE 13
PEAKER PLANTS
SECTION 19-1301. STATEMENT OF FINDINGS.
19-1303. DEFINITIONS.
19-1305. MANDATORY REPLACEMENT AND COMPLIANCE PLAN.
19-1307. EXTENSIONS FOR CAUSE.
19-1309. PROHIBITIONS.
19-1311. EXEMPTIONS.
§ 19-1301. STATEMENT OF FINDINGS.
1. ELECTRIC GENERATING UNITS THAT GENERALLY OPERATE DURING PERIODS OF
PEAK ELECTRICITY DEMAND ARE KNOWN AS PEAKER PLANTS. MANY PEAKER PLANTS
IN THE STATE ARE OLDER FOSSIL FUEL-FIRED UNITS THAT EMIT GREENHOUSE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04461-04-2
S. 4378--B 2
GASES AND A VARIETY OF OTHER HARMFUL AIR POLLUTANTS INCLUDING SULFUR
OXIDES, NITROGEN OXIDES, PARTICULATES AND MERCURY.
2. A SUBSTANTIAL NUMBER OF PEAKER PLANTS ARE LOCATED IN OR ADJACENT TO
DISADVANTAGED COMMUNITIES IN THE CITY OF NEW YORK AND LONG ISLAND THAT
ALREADY BEAR DISPROPORTIONATE POLLUTION BURDENS DUE TO A HISTORY OF
SITING POLLUTION SOURCES IN THOSE COMMUNITIES. MORE THAN ONE MILLION NEW
YORKERS LIVE WITHIN ONE MILE OF A PEAKER PLANT.
3. POLLUTANTS FROM PEAKER PLANTS CONTRIBUTE TO SIGNIFICANT PUBLIC
HEALTH PROBLEMS. ACCORDING TO THE NEW YORK CITY DEPARTMENT OF HEALTH AND
MENTAL HYGIENE'S AIR POLLUTION AND THE HEALTH OF NEW YORKERS REPORT:
"EACH YEAR, PM2.5 POLLUTION IN (NEW YORK CITY) CAUSES MORE THAN 3,000
DEATHS, 2,000 HOSPITAL ADMISSIONS FOR LUNG AND HEART CONDITIONS, AND
APPROXIMATELY 6,000 EMERGENCY DEPARTMENT VISITS FOR ASTHMA IN CHILDREN
AND ADULTS." ACCORDING TO THE REPORT, EACH YEAR EXPOSURES TO OZONE
CONCENTRATIONS ABOVE BACKGROUND LEVELS CAUSE AN ESTIMATED "400 PREMATURE
DEATHS, 850 HOSPITALIZATIONS FOR ASTHMA AND 4,500 EMERGENCY DEPARTMENT
VISITS FOR ASTHMA."
4. PEAKER PLANTS OFTEN OPERATE DURING SUMMER MONTHS WHEN AIR POLLUTION
LEVELS ARE HIGHEST AND THEIR EMISSIONS ADD TO EXISTING POLLUTION BURDENS
IN DISADVANTAGED COMMUNITIES AND CONTRIBUTE TO ADVERSE HEALTH EFFECTS IN
THOSE COMMUNITIES FROM AIR POLLUTION.
5. THE OWNERS AND OPERATORS OF PEAKER PLANTS HAVE RECEIVED BILLIONS OF
DOLLARS IN CAPACITY PAYMENTS FROM RATEPAYERS OVER THE LAST DECADE TO
SUBSIDIZE OPERATION OF THEIR PLANTS, EVEN THOUGH THE PLANTS PRIMARILY
OPERATE DURING PEAK LOAD PERIODS.
6. FOSSIL FUEL-BURNING PEAKER PLANTS CAN BE REPLACED WITH RENEWABLE
ENERGY SYSTEMS THAT WILL ELIMINATE OR SIGNIFICANTLY REDUCE AIR POLLUTION
IMPACTS TO DISADVANTAGED COMMUNITIES FROM PEAKER PLANT OPERATIONS.
7. REPLACEMENT OF FOSSIL FUEL-BURNING PEAKER PLANTS WITH RENEWABLE
ENERGY SYSTEMS IS IN THE PUBLIC INTEREST, WILL SAVE MILLIONS OF DOLLARS
IN ENVIRONMENTAL AND HUMAN HEALTH-RELATED DAMAGES, WILL PROMOTE ENVIRON-
MENTAL JUSTICE AND WILL ASSIST IN MEETING THE GREENHOUSE GAS EMISSION
REDUCTION AND ENERGY STORAGE GOALS OF THE CLIMATE LEADERSHIP AND COMMU-
NITY PROTECTION ACT.
§ 19-1303. DEFINITIONS.
1. "ADJACENT TO" SHALL MEAN WITHIN A RADIUS OF ONE MILE FROM THE PLANT
PROPERTY BOUNDARY.
2. "DISADVANTAGED COMMUNITY" SHALL HAVE THE SAME MEANING AS IN SUBDI-
VISION FIVE OF SECTION 75-0101 OF THIS CHAPTER.
3. "OPERATING PERMIT" SHALL HAVE THE MEANING SET FORTH IN SUBDIVISION
EIGHTEEN OF SECTION 19-0107 OF THIS ARTICLE.
4. "RENEWABLE ENERGY SYSTEMS" SHALL HAVE THE MEANING SET FORTH IN
SECTION SIXTY-SIX-P OF THE PUBLIC SERVICE LAW AND MAY ALSO INCLUDE FIRM
ZERO EMISSION RESOURCES SUCH AS LONG-DURATION ENERGY STORAGE.
5. "REPLACE" OR "REPLACEMENT" MEANS THE CONSTRUCTION AND OPERATION OF
A RENEWABLE ENERGY SYSTEM, BATTERY OR ENERGY STORAGE, OR TRANSMISSION
AND DISTRIBUTION INFRASTRUCTURE THAT ENABLES THE PROVISION OF THE EQUIV-
ALENT MAXIMUM ANNUAL POWER OUTPUT ACHIEVED BY THE REPLACEABLE PEAKER
PLANT DURING ANY SINGLE YEAR DURING THE TEN YEARS PRECEDING THE
SUBMISSION OF AN APPLICATION TO RENEW AN OPERATING PERMIT.
6. "REPLACEABLE PEAKER PLANT" MEANS A MAJOR ELECTRIC GENERATING FACIL-
ITY AS DEFINED IN PARAGRAPH B OF SUBDIVISION ONE OF SECTION 19-0312 OF
THIS ARTICLE THAT BURNS COAL, OIL, DIESEL OR NATURAL GAS AND WAS OPERA-
TIONAL AND GENERATED ELECTRICITY LESS THAN FIFTEEN PERCENT OF THE YEAR
DURING AT LEAST TWO YEARS BETWEEN TWO THOUSAND TEN THROUGH TWO THOUSAND
S. 4378--B 3
NINETEEN AND THAT IS LOCATED IN OR ADJACENT TO A DISADVANTAGED COMMUNI-
TY.
§ 19-1305. MANDATORY REPLACEMENT AND COMPLIANCE PLAN.
1. THE OWNER OR OPERATOR OF A REPLACEABLE PEAKER PLANT SHALL SUBMIT TO
THE DEPARTMENT AS PART OF AN APPLICATION TO RENEW AN OPERATING PERMIT A
MANDATORY REPLACEMENT AND COMPLIANCE PLAN THAT SHALL INCLUDE, AT A MINI-
MUM, THE FOLLOWING:
A. THE NUMBER OF DAYS AND HOURS SUCH PLANT OPERATED DURING EACH OF THE
PREVIOUS TEN YEARS;
B. THE ANNUAL POWER OUTPUT OF SUCH PLANT FOR EACH OF THE PREVIOUS TEN
YEARS;
C. THE FUEL OR FUELS UTILIZED BY SUCH PLANT TO GENERATE POWER;
D. A PROPOSED STRATEGY TO REPLACE THE PLANT WITH RENEWABLE ENERGY
SYSTEMS OR BATTERY STORAGE OR A COMBINATION THEREOF. THE STRATEGY SHALL,
AT A MINIMUM, SET FORTH THE TYPE OR TYPES OF RENEWABLE ENERGY SYSTEMS
AND BATTERY STORAGE TO BE UTILIZED, THE PROPOSED LOCATION OR LOCATIONS
OF SUCH RENEWABLE ENERGY SYSTEMS AND BATTERY STORAGE, AND THE ELECTRIC
GENERATING CAPACITY OF SUCH RENEWABLE ENERGY SYSTEMS AND BATTERY STOR-
AGE;
E. A TIMETABLE FOR IMPLEMENTATION OF THE PROPOSED REPLACEMENT STRATEGY
THAT SHALL NOT EXCEED FIVE YEARS FROM THE DATE OF RENEWAL OF THE OPERAT-
ING PERMIT AND THAT SHALL ENSURE THAT THE RENEWABLE ENERGY SYSTEMS AND
BATTERY STORAGE ARE FULLY OPERATIONAL, AND THE OPERATIONS OF THE PEAKER
PLANT CAN BE COMPLETELY REPLACED, ON OR BEFORE FIVE YEARS FROM THE DATE
OF RENEWAL OF THE OPERATING PERMIT; AND
F. A DEMONSTRATION OF HOW THE PROPOSED RENEWABLE ENERGY SYSTEMS AND
BATTERY STORAGE STRATEGY AND TIMETABLE FOR IMPLEMENTATION WILL COMPLY
WITH THE RENEWABLE ENERGY GOALS SET FORTH IN SECTION SIXTY-SIX-P OF THE
PUBLIC SERVICE LAW.
2. THE DEPARTMENT SHALL PROVIDE PUBLIC NOTICE OF THE MANDATORY
REPLACEMENT AND COMPLIANCE PLAN AND AN OPPORTUNITY FOR PUBLIC COMMENT ON
THE PLAN OF NOT LESS THAN SIXTY DAYS. THE DEPARTMENT SHALL HOLD AT LEAST
TWO PUBLIC HEARINGS ON THE PLAN IN THE AFFECTED DISADVANTAGED COMMUNITY
OR COMMUNITIES, WITH SUCH PUBLIC HEARINGS OFFERING VIDEO PARTICIPATION
AND ACCESSIBILITY.
3. AFTER REVIEW AND CONSIDERATION OF PUBLIC COMMENTS, THE DEPARTMENT
SHALL APPROVE, APPROVE WITH MODIFICATIONS OR DISAPPROVE THE PLAN.
4. UPON APPROVAL OF THE MANDATORY REPLACEMENT AND COMPLIANCE PLAN, THE
OWNER OR OPERATOR OF THE REPLACEABLE PEAKER PLANT SHALL IMPLEMENT THE
PLAN IN ACCORDANCE WITH THE SCHEDULE SET FORTH IN THE PLAN AND PROVIDE
TO THE DEPARTMENT AN ANNUAL COMPLIANCE AND PROGRESS REPORT BEGINNING ONE
YEAR AFTER THE DEPARTMENT APPROVES THE PLAN. THE DEPARTMENT SHALL MAKE
EACH ANNUAL COMPLIANCE AND PROGRESS REPORT AVAILABLE ON ITS WEBSITE.
5. IF THE DEPARTMENT DISAPPROVES A PROPOSED PLAN, THE DEPARTMENT SHALL
INFORM THE OWNER OR OPERATOR OF THE REPLACEABLE PEAKER PLANT IN WRITING
OF THE REASONS FOR SUCH DISAPPROVAL AND SHALL IDENTIFY THE PORTIONS OF
THE DISAPPROVED PLAN THAT NEED TO BE MODIFIED. THE OWNER OR OPERATOR
SHALL SUBMIT A MODIFIED PLAN WITHIN SIXTY DAYS OF RECEIVING THE DEPART-
MENT'S WRITTEN NOTICE OF DISAPPROVAL. THE MODIFIED PLAN SHALL BE SUBJECT
TO THE NOTICE AND PUBLIC COMMENT AND HEARING PROCEDURES SET FORTH IN
THIS SECTION.
§ 19-1307. EXTENSIONS FOR CAUSE.
1. THE OWNER OR OPERATOR OF A REPLACEABLE PEAKER PLANT MAY APPLY TO
THE DEPARTMENT FOR A SINGLE FIVE-YEAR EXTENSION OF THE DEADLINE FOR
REPLACEMENT SET FORTH IN SECTION 19-1305 OF THIS TITLE.
S. 4378--B 4
2. THE DEPARTMENT SHALL PROVIDE PUBLIC NOTICE OF THE APPLICATION FOR
ANY SUCH EXTENSION, AND AN OPPORTUNITY FOR PUBLIC COMMENT ON SUCH APPLI-
CATION, OF NOT LESS THAN SIXTY DAYS. THE DEPARTMENT SHALL HOLD AT LEAST
TWO PUBLIC HEARINGS ON THE APPLICATION IN THE AFFECTED DISADVANTAGED
COMMUNITY OR COMMUNITIES, WITH SUCH PUBLIC HEARINGS OFFERING VIDEO
PARTICIPATION AND ACCESSIBILITY. ANY SUCH PUBLIC HEARINGS SHALL ALSO
EXPLORE THE OPTION OF TRANSITIONING THE REPLACEABLE PEAKER PLANT INTO
THE OWNERSHIP OR CONTROL OF THE NEW YORK POWER AUTHORITY, AN ENTITY THAT
CURRENTLY OWNS AND OPERATES SEVERAL PEAKER PLANTS IN THE STATE, TO
MANAGE THE TRANSITION TO RENEWABLE ENERGY AND BATTERY STORAGE SYSTEMS.
3. AFTER REVIEW AND CONSIDERATION OF PUBLIC COMMENTS, THE DEPARTMENT
SHALL APPROVE, APPROVE WITH MODIFICATIONS, OR DISAPPROVE THE APPLICATION
FOR A SINGLE FIVE-YEAR EXTENSION.
4. THE DEPARTMENT MAY ONLY GRANT AN APPLICATION FOR AN EXTENSION
REQUEST UPON A SHOWING BY THE APPLICANT, BY CLEAR AND CONVINCING
EVIDENCE, THAT (A) REPLACEMENT OF THE PLANT WITH RENEWABLE ENERGY
SYSTEMS AND BATTERY STORAGE BY THE DEADLINE IS NOT FEASIBLE, (B) THE
DEPARTMENT OF PUBLIC SERVICE, IN CONSULTATION WITH THE NEW YORK INDE-
PENDENT SYSTEM OPERATOR, HAS MADE A WRITTEN DETERMINATION THAT EXTENDING
THE DEADLINE FOR THE PLANT IS NECESSARY TO MAINTAIN RELIABILITY OF THE
ELECTRIC GRID, AND (C) THE CONTINUED OPERATION OF THE PEAKER PLANT WOULD
NOT RESULT IN ADVERSE HEALTH IMPACTS FOR THE IMPACTED DISADVANTAGED
COMMUNITIES.
§ 19-1309. PROHIBITIONS.
1. EXCEPT AS PROVIDED IN SECTION 19-1307 OF THIS TITLE, NO PERSON
SHALL OPERATE A REPLACEABLE PEAKER PLANT THAT IS NOT IN COMPLIANCE WITH
THE REQUIREMENTS OF THIS TITLE AND THE DEPARTMENT SHALL NOT ISSUE AN
OPERATING PERMIT OR RENEW AN OPERATING PERMIT FOR A REPLACEABLE PEAKER
PLANT THAT DOES NOT HAVE AN APPROVED MANDATORY REPLACEMENT AND COMPLI-
ANCE PLAN.
2. THE DEPARTMENT SHALL NOT ISSUE AN OPERATING PERMIT OR RENEW AN
OPERATING PERMIT FOR A REPLACEABLE PEAKER PLANT THAT HAS NOT COMPLETED
IMPLEMENTATION OF A MANDATORY REPLACEMENT AND COMPLIANCE PLAN BY THE
DEADLINE SET FORTH IN THE PLAN.
§ 19-1311. EXEMPTIONS.
1. A REPLACEABLE PEAKER PLANT IS NOT SUBJECT TO THE REQUIREMENTS OF
THIS TITLE IF THE OWNER OR OPERATOR OF THE PLANT HAS SUBMITTED WRITTEN
NOTIFICATION TO THE DEPARTMENT OF PUBLIC SERVICE THAT THE PLANT WILL BE
PERMANENTLY RETIRED ON OR BEFORE THE FIRST DAY OF JANUARY, TWO THOUSAND
TWENTY-SEVEN.
2. THE DEPARTMENT SHALL, EFFECTIVE ON OR BEFORE THE FIRST DAY OF JANU-
ARY, TWO THOUSAND TWENTY-SEVEN, REVOKE THE OPERATING PERMIT OF A
REPLACEABLE PEAKER PLANT FOR WHICH WRITTEN NOTIFICATION HAS BEEN
PROVIDED TO THE DEPARTMENT OF PUBLIC SERVICE PURSUANT TO SUBDIVISION ONE
OF THIS SECTION.
§ 3. This act shall take effect immediately.
