S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2934
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2023
                                ___________
 
 Introduced  by  M.  of  A.  CARROLL,  FORREST, MITAYNES, SIMON, MAMDANI,
   COLTON,  DINOWITZ,  KELLES,  DAVILA,  L. ROSENTHAL,  SEPTIMO,  THIELE,
   LEVENBERG  -- read once and referred to the Committee on Environmental
   Conservation
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   establishing  the  "pollution  justice act" 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".
   § 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00532-02-3
 A. 2934                             2
              

 
 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 ELEVEN THROUGH TWO  THOU-
 SAND TWENTY AND THAT IS LOCATED IN OR ADJACENT TO A DISADVANTAGED COMMU-
 NITY.
 § 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
 A. 2934                             3
 
 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.
   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
 A. 2934                             4
 
 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-EIGHT.
   2. THE DEPARTMENT SHALL, EFFECTIVE ON OR BEFORE THE FIRST DAY OF JANU-
 ARY,  TWO  THOUSAND  TWENTY-EIGHT,  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.