S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3223
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 2, 2023
                                ___________
 
 Introduced by M. of A. HUNTER -- read once and referred to the Committee
   on Environmental Conservation
 
 AN  ACT  to  amend  the  environmental  conservation  law and the public
   service law, in relation to requiring zero emission certification  for
   fossil fuel-fired electric generating units

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "power plant zero carbon emissions 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
                     POWER PLANT ZERO CARBON EMISSIONS
 SECTION 19-1301. STATEMENT OF FINDINGS.
         19-1303. DEFINITIONS.
         19-1305. MANDATORY ZERO CARBON EMISSION PLAN.
         19-1307. REVIEW OF PLANS AND CERTIFICATION.
         19-1309. PROHIBITION.
         19-1311. REQUIREMENTS  FOR  FACILITIES  GRANTED  SUSPENSION   OR
                    MODIFICATION.
         19-1313. REGULATIONS.
 § 19-1301. STATEMENT OF FINDINGS.
   1.  ELECTRIC  GENERATING  UNITS THAT BURN COAL, OIL, DIESEL OR NATURAL
 GAS ARE SIGNIFICANT SOURCES OF GREENHOUSE GAS EMISSIONS IN THE STATE.
   2. THE CLIMATE LEADERSHIP AND COMMUNITY PROTECTION ACT  REQUIRES  THAT
 THE STATE ACHIEVE ONE HUNDRED PERCENT ZERO CARBON ELECTRIC GENERATION BY
 TWO THOUSAND FORTY.
   3.  IN ORDER FOR THE STATE TO ACHIEVE THIS GOAL, EXISTING FOSSIL FUEL-
 FIRED ELECTRIC GENERATING FACILITIES MUST  DEMONSTRATE  THAT  THEY  WILL
 ACHIEVE ZERO GREENHOUSE GAS EMISSIONS BY TWO THOUSAND FORTY.
 § 19-1303. DEFINITIONS.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07808-01-3
              

 A. 3223                             2
 
   1.  "BASELINE  EMISSIONS"  SHALL  MEAN MAXIMUM EMISSIONS OF GREENHOUSE
 GASES BY A COVERED FACILITY OCCURRING OVER ANY TWELVE-MONTH  PERIOD  FOR
 THE FIVE YEARS PRECEDING THE EFFECTIVE DATE OF THIS TITLE.
   2. "COVERED FACILITY" SHALL MEAN AN EXISTING MAJOR ELECTRIC GENERATING
 FACILITY  AS  DEFINED IN PARAGRAPH B OF SUBDIVISION 1 OF SECTION 19-0312
 OF THIS ARTICLE THAT BURNS COAL, OIL, DIESEL OR NATURAL GAS.
   3. "EXISTING MAJOR ELECTRIC GENERATING FACILITY" SHALL MEAN A FACILITY
 IN EXISTENCE, OR FOR WHICH CONSTRUCTION HAS COMMENCED, AS OF THE  EFFEC-
 TIVE  DATE  OF  THIS TITLE, AND SHALL INCLUDE A NEW FACILITY PROPOSED TO
 REPLACE AN EXISTING FACILITY AT THE SAME OR SUBSTANTIALLY SAME  LOCATION
 WHETHER OR NOT CONSTRUCTION OF SUCH NEW FACILITY HAS COMMENCED AS OF THE
 EFFECTIVE DATE OF THIS TITLE.
   4. "GREENHOUSE GAS" SHALL HAVE THE SAME MEANING AS SET FORTH IN SUBDI-
 VISION 7 OF SECTION 75-0101 OF THIS CHAPTER.
   5.  "OPERATING  PERMIT"  SHALL  HAVE  THE SAME MEANING AS SET FORTH IN
 SUBDIVISION 18 OF SECTION 19-0107 OF THIS ARTICLE.
   6. "RENEWABLE ENERGY SYSTEMS" SHALL HAVE THE SAME MEANING AS SET FORTH
 IN SECTION SIXTY-SIX-P OF THE PUBLIC SERVICE LAW.
 § 19-1305. MANDATORY ZERO CARBON EMISSION PLAN.
   1. THE OWNER OR OPERATOR OF A COVERED FACILITY  SHALL  SUBMIT  TO  THE
 DEPARTMENT  AS  PART  OF AN APPLICATION FOR A NEW OPERATING PERMIT OR AN
 APPLICATION TO RENEW AN EXISTING OPERATING PERMIT  A  WRITTEN  PLAN  AND
 SUPPORTING  DOCUMENTATION  DEMONSTRATING  THAT THE FACILITY'S OPERATIONS
 WILL, ON OR BEFORE THE FIRST DAY OF JANUARY, TWO THOUSAND FORTY, ACHIEVE
 ZERO EMISSIONS OF GREENHOUSE GASES.
   2. THE PLAN SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING:
   A. THE NUMBER OF DAYS AND HOURS THE PLANT OPERATED DURING EACH OF  THE
 PREVIOUS FIVE YEARS;
   B.  THE ANNUAL POWER OUTPUT OF THE PLANT FOR EACH OF THE PREVIOUS FIVE
 YEARS;
   C. THE FUEL OR FUELS UTILIZED BY THE PLANT TO GENERATE POWER;
   D. THE FACILITY'S ANNUAL EMISSIONS OF GREENHOUSE GASES,  EXPRESSED  IN
 TONS OF CARBON DIOXIDE EQUIVALENTS;
   E.  THE  VERIFIABLE  AND  ENFORCEABLE  OPERATIONAL  MEASURES, EMISSION
 CONTROLS, FUEL USE, RENEWABLE REPLACEMENT TECHNOLOGIES, BATTERY STORAGE,
 OR ANY COMBINATION THEREOF, THE FACILITY  WILL  INSTITUTE  IN  ORDER  TO
 ACHIEVE ZERO EMISSIONS OF GREENHOUSE GASES ON OR BEFORE THE FIRST DAY OF
 JANUARY, TWO THOUSAND FORTY; AND
   F.  THE SCHEDULE FOR IMPLEMENTATION OF EACH OF THE MEASURES IDENTIFIED
 IN THE PLAN.
   3. THE OWNER OR OPERATOR OF A  COVERED  FACILITY  MAY  SUBMIT  TO  THE
 DEPARTMENT,  IN  LIEU OF A MANDATORY ZERO EMISSION PLAN, WRITTEN CERTIF-
 ICATION THAT IT WILL CEASE OPERATIONS ON OR  BEFORE  THE  FIRST  DAY  OF
 JANUARY,  TWO  THOUSAND FORTY. SUCH CERTIFICATION SHALL SPECIFY THE DATE
 THAT THE COVERED FACILITY WILL CEASE OPERATIONS AND INCLUDE  PROOF  THAT
 THE  DEPARTMENT OF PUBLIC SERVICE HAS BEEN NOTIFIED OF THE DATE THAT THE
 FACILITY WILL CEASE OPERATIONS.
 § 19-1307. REVIEW OF PLANS AND CERTIFICATION.
   1. THE DEPARTMENT SHALL REVIEW A PLAN SUBMITTED BY A COVERED  FACILITY
 AND  SHALL  APPROVE  SUCH PLAN IF IT DEMONSTRATES THAT THE FACILITY WILL
 ACHIEVE, ON OR BEFORE THE FIRST DAY OF JANUARY, TWO THOUSAND FORTY, ZERO
 EMISSIONS OF GREENHOUSE GASES. THE DEPARTMENT SHALL NOT APPROVE THE PLAN
 UNLESS IT DETERMINES THAT THE OPERATIONAL MEASURES,  EMISSION  CONTROLS,
 FUEL  USE,  RENEWABLE  REPLACEMENT TECHNOLOGIES, BATTERY STORAGE, OR ANY
 COMBINATION THEREOF, SET FORTH IN THE PLAN ARE  VERIFIABLE,  ENFORCEABLE
 AND ACHIEVABLE BASED ON CURRENTLY EXISTING TECHNOLOGY OR TECHNOLOGY THAT
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 WILL  BE  REASONABLY  AVAILABLE  AND  RELIABLE  WITHIN THE TIMEFRAME FOR
 IMPLEMENTATION SET FORTH IN THE PLAN.
   2. THE DEPARTMENT SHALL PROVIDE PUBLIC NOTICE OF THE ZERO CARBON EMIS-
 SION  PLAN AND AN OPPORTUNITY FOR PUBLIC COMMENT ON THE PLAN OF NOT LESS
 THAN SIXTY DAYS. THE DEPARTMENT SHALL HOLD AT LEAST ONE  PUBLIC  HEARING
 ON THE PLAN IN THE COMMUNITY IN WHICH THE COVERED FACILITY IS LOCATED.
   3.  AFTER  REVIEW AND CONSIDERATION OF PUBLIC COMMENTS, THE DEPARTMENT
 SHALL APPROVE OR DISAPPROVE THE PLAN. IF  THE  DEPARTMENT  APPROVES  THE
 PLAN,  IT  SHALL ISSUE A WRITTEN CERTIFICATION THAT THE COVERED FACILITY
 COMPLIES WITH THE REQUIREMENTS OF THIS TITLE.
   4. UPON APPROVAL OF THE MANDATORY ZERO CARBON EMISSION PLAN, THE OWNER
 OR OPERATOR OF THE COVERED FACILITY SHALL IMPLEMENT THE PLAN IN  ACCORD-
 ANCE  WITH THE SCHEDULE SET FORTH IN THE PLAN AND PROVIDE TO THE DEPART-
 MENT 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 COVERED FACILITY IN WRITING  OF  THE
 REASONS FOR SUCH DISAPPROVAL. THE OWNER OR OPERATOR SHALL SUBMIT A MODI-
 FIED PLAN WITHIN SIXTY DAYS OF RECEIVING THE DEPARTMENT'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.
 § 19-1309. PROHIBITION.
   THE DEPARTMENT SHALL NOT ISSUE A NEW  OPERATING  PERMIT  OR  RENEW  AN
 EXISTING  OPERATING  PERMIT  FOR  A COVERED FACILITY UNLESS THE OWNER OR
 OPERATOR OF THE FACILITY HAS SUBMITTED TO THE DEPARTMENT (I) A MANDATORY
 ZERO CARBON EMISSION PLAN THAT HAS BEEN APPROVED BY THE  DEPARTMENT  AND
 FOR  WHICH  A  WRITTEN CERTIFICATION PURSUANT TO SECTION 19-1307 OF THIS
 TITLE HAS BEEN ISSUED; OR (II) WRITTEN CERTIFICATION THAT IT WILL  CEASE
 OPERATIONS ON OR BEFORE THE FIRST DAY OF JANUARY, TWO THOUSAND FORTY.
 § 19-1311. REQUIREMENTS  FOR  FACILITIES GRANTED SUSPENSION OR MODIFICA-
              TION.
   1. IN THE EVENT THE PUBLIC SERVICE COMMISSION GRANTS A COVERED FACILI-
 TY A SUSPENSION OR MODIFICATION PURSUANT TO SUBDIVISION FOUR OF  SECTION
 SIXTY-SIX-P  OF THE PUBLIC SERVICE LAW OF THE OBLIGATION TO ACHIEVE ZERO
 EMISSIONS, THE OWNER OR OPERATOR OF SUCH COVERED FACILITY  SHALL  SUBMIT
 TO  THE  DEPARTMENT AS PART OF AN APPLICATION FOR A NEW OPERATING PERMIT
 OR AN APPLICATION TO RENEW AN EXISTING OPERATING PERMIT A WRITTEN CARBON
 EMISSION REDUCTION PLAN AND SUPPORTING DOCUMENTATION DEMONSTRATING  THAT
 THE  FACILITY'S  OPERATIONS WILL, ON OR BEFORE THE FIRST DAY OF JANUARY,
 TWO THOUSAND FORTY, ACHIEVE A TWO-TO-ONE  REDUCTION  IN  GREENHOUSE  GAS
 EMISSIONS  AS  MEASURED FROM THE FACILITY'S BASELINE EMISSIONS OF GREEN-
 HOUSE GASES.
   2. THE PLAN SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING:
   A. THE NUMBER OF DAYS AND HOURS THE PLANT OPERATED DURING EACH OF  THE
 PREVIOUS FIVE YEARS;
   B.  THE ANNUAL POWER OUTPUT OF THE PLANT FOR EACH OF THE PREVIOUS FIVE
 YEARS;
   C. THE FUEL OR FUELS UTILIZED BY THE PLANT TO GENERATE POWER;
   D. THE FACILITY'S ANNUAL EMISSIONS OF GREENHOUSE GASES,  EXPRESSED  IN
 TONS OF CARBON DIOXIDE EQUIVALENTS;
   E.  THE  VERIFIABLE  AND  ENFORCEABLE  OPERATIONAL  MEASURES, EMISSION
 CONTROLS OR CARBON OFFSETS, OR ANY  COMBINATION  THEREOF,  THE  FACILITY
 WILL  INSTITUTE  OR OBTAIN IN ORDER TO ACHIEVE A TWO-TO-ONE REDUCTION IN
 GREENHOUSE GAS EMISSIONS ON OR BEFORE THE  FIRST  DAY  OF  JANUARY,  TWO
 THOUSAND  FORTY,  TOGETHER  WITH AN ANALYSIS OF THE REDUCTION IN TONS OF
 A. 3223                             4
 
 CARBON DIOXIDE EQUIVALENTS FOR EACH SUCH OPERATIONAL  MEASURE,  EMISSION
 CONTROL OR CARBON OFFSET; AND
   F.  THE SCHEDULE FOR IMPLEMENTATION OF EACH OF THE MEASURES IDENTIFIED
 IN THE PLAN.
   3. IN ORDER TO MEET THE REQUIREMENTS OF THIS SECTION, A COVERED FACIL-
 ITY GRANTED A SUSPENSION OR MODIFICATION  MAY  UTILIZE  CARBON  OFFSETS.
 OFFSETS SHALL BE VERIFIABLE, ENFORCEABLE AND ACHIEVABLE.
   4.  CARBON  OFFSETS  SHALL  INCLUDE THE GREENHOUSE GAS EMISSION OFFSET
 PROJECTS IDENTIFIED IN SUBDIVISION 10 OF SECTION 75-0101 OF  THIS  CHAP-
 TER;  CARBON  DIOXIDE REMOVAL BY DIRECT AIR CAPTURE; AND THE PURCHASE OF
 ZERO EMISSION VEHICLES FOR BUS FLEETS SERVING A SCHOOL DISTRICT OR MUNI-
 CIPALITY.
   5. FOR PURPOSES OF THIS SECTION DIRECT AIR CAPTURE SHALL MEAN A FACIL-
 ITY, TECHNOLOGY, OR SYSTEM THAT IS POWERED BY RENEWABLE ENERGY AND  THAT
 USES  CARBON  CAPTURE  EQUIPMENT TO CAPTURE CARBON DIOXIDE DIRECTLY FROM
 THE AIR. THE TERM DIRECT AIR CAPTURE  DOES  NOT  INCLUDE  ANY  FACILITY,
 TECHNOLOGY,  OR SYSTEM THAT CAPTURES CARBON DIOXIDE THAT IS DELIBERATELY
 RELEASED FROM A NATURALLY OCCURRING SUBSURFACE SPRING  OR  FROM  NATURAL
 PHOTOSYNTHESIS.
   6.  THE  DEPARTMENT'S REVIEW OF THE CARBON REDUCTION PLAN SHALL COMPLY
 WITH THE PROCEDURES AND REQUIREMENTS SET FORTH  IN  SECTION  19-1307  OF
 THIS TITLE.
 § 19-1313. REGULATIONS.
   THE  DEPARTMENT IS AUTHORIZED TO PROMULGATE SUCH RULES AND REGULATIONS
 AS MAY BE NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
   § 3. Subdivision 3 of section 168 of the public service law, as  added
 by chapter 388 of the laws of 2011, is amended to read as follows:
   3. The board may not grant a certificate for the construction or oper-
 ation  of a major electric generating facility, either as proposed or as
 modified by the board, unless the board determines that:
   (a) the facility is a beneficial addition to or substitution  for  the
 electric generation capacity of the state; and
   (b)  the  construction  and  operation  of the facility will serve the
 public interest; and
   (c) the adverse environmental effects of the construction  and  opera-
 tion  of the facility will be minimized or avoided to the maximum extent
 practicable; and
   (d) if the board finds that the facility results in or contributes  to
 a  significant  and adverse disproportionate environmental impact in the
 community in which the facility would be  located,  the  applicant  will
 avoid,  offset  or  minimize the impacts caused by the facility upon the
 local community for the duration that the certificate is issued  to  the
 maximum extent practicable using verifiable measures; and
   (e)  the facility is designed to operate in compliance with applicable
 state and local laws and regulations issued thereunder concerning, among
 other matters, the environment, public health and safety, all  of  which
 shall be binding upon the applicant, except that the board may elect not
 to  apply,  in whole or in part, any local ordinance, law, resolution or
 other action or any regulation issued thereunder or any  local  standard
 or  requirement,  including,  but  not limited to, those relating to the
 interconnection to and use of water, electric, sewer, telecommunication,
 fuel and steam lines in public rights of way, which would  be  otherwise
 applicable  if  it finds that, as applied to the proposed facility, such
 is unreasonably burdensome in view of the  existing  technology  or  the
 needs  of  or  costs  to ratepayers whether located inside or outside of
 such municipality. The board shall provide the municipality an  opportu-
 A. 3223                             5
 
 nity  to present evidence in support of such ordinance, law, resolution,
 regulation or other local action issued thereunder[.]; AND
   (F) THE FACILITY HAS RECEIVED A WRITTEN CERTIFICATION FROM THE DEPART-
 MENT  OF  ENVIRONMENTAL  CONSERVATION PURSUANT TO SECTION 19-1307 OF THE
 ENVIRONMENTAL CONSERVATION LAW OR HAS SUBMITTED A WRITTEN  CERTIFICATION
 TO  THE  DEPARTMENT  AND  THE  DEPARTMENT  OF ENVIRONMENTAL CONSERVATION
 PURSUANT TO SUBDIVISION THREE OF SECTION 19-1305  OF  THE  ENVIRONMENTAL
 CONSERVATION LAW.
   § 4. This act shall take effect immediately.