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
 A. 522                              2
              

 
   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-
 A. 522                              3
 
 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
 A. 522                              4
 
 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.