S T A T E O F N E W Y O R K
________________________________________________________________________
522
2023-2024 Regular Sessions
I N A S S E M B L Y
January 9, 2023
___________
Introduced by M. of A. CARROLL, FORREST, MITAYNES, SIMON, MAMDANI,
COLTON, DINOWITZ, KELLES, DAVILA, L. ROSENTHAL, SEPTIMO, THIELE --
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 of 2023" 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 2023".
§ 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 THAT ALREADY BEAR
DISPROPORTIONATE POLLUTION BURDENS DUE TO A HISTORY OF SITING POLLUTION
SOURCES IN THOSE COMMUNITIES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00532-01-3
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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.
§ 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 OR TRANSMISSION AND DISTRIBUTION INFRASTRUC-
TURE THAT ENABLES THE PROVISION OF THE EQUIVALENT 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
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 IN A CITY WITH
A POPULATION OF ONE MILLION OR MORE, WITHIN OR ADJACENT TO A DISADVAN-
TAGED COMMUNITY, SHALL SUBMIT TO THE DEPARTMENT AS PART OF AN APPLICA-
TION TO ISSUE AN OPERATING PERMIT OR RENEW AN OPERATING PERMIT, A MANDA-
TORY REPLACEMENT AND COMPLIANCE PLAN THAT SHALL INCLUDE, AT A MINIMUM,
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. THE STRATEGY SHALL, AT A MINIMUM, SET FORTH THE TYPE OR TYPES
OF RENEWABLE ENERGY SYSTEMS TO BE UTILIZED, THE PROPOSED LOCATION OR
LOCATIONS OF SUCH RENEWABLE ENERGY SYSTEMS, AND THE ELECTRIC GENERATING
CAPACITY OF SUCH RENEWABLE ENERGY SYSTEMS;
E. A TIMETABLE FOR IMPLEMENTATION OF THE PROPOSED REPLACEMENT STRATEGY
THAT SHALL NOT EXCEED FIVE YEARS FROM THE DATE OF RENEWAL OF THE OPERAT-
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ING PERMIT AND THAT SHALL ENSURE THAT THE RENEWABLE ENERGY SYSTEMS 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
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 THAT PROVIDE MEANINGFUL OPPORTUNITIES FOR PUBLIC PARTIC-
IPATION AND MAXIMIZE 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 THAT PROVIDE MEANINGFUL OPPORTUNITIES FOR
PUBLIC PARTICIPATION AND MAXIMIZE PARTICIPATION AND ACCESSIBILITY.
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 BY THE DEADLINE IS NOT FEASIBLE, (B) THE DEPARTMENT OF PUBLIC
SERVICE, IN CONSULTATION WITH THE NEW YORK INDEPENDENT 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. 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
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REPLACEABLE PEAKER PLANT THAT DOES NOT HAVE AN APPROVED MANDATORY
REPLACEMENT AND COMPLIANCE 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-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 on the one hundred eightieth day after
it shall have become a law and shall apply to all permit applications or
renewals on or after such date.