Add Art 19 Title 13 §§19-1301 - 19-1313, En Con L; amd §168, Pub Serv L
 
Enacts the "power plant zero carbon emissions act of 2023"; requires that existing fossil fuel-fired electric generating facilities must demonstrate that they will achieve zero greenhouse gas emissions by 2040.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3223
SPONSOR: Hunter
 
TITLE OF BILL:
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
 
PURPOSE:
Relates to enacting the "power plant zero carbon emissions act of 2023"
 
SUMMARY OF PROVISIONS:
Section 1 provides that this act shall be known and cited as the "power
plant zero carbon emissions act of 2023."
Section 2 amends the Environmental Conservation Law (ECL) by adding a
new title 15 to Article 19. ECL section 19-1501 is the statement of
findings; section 19-1503 sets forth definitions; section 19-0505
requires major fossil fuel-fired electric generating facilities to
submit to the Department of Environmental Conservation (DEC) a zero
carbon emission plan demonstrating how the facility will achieve zero
carbon emissions by 2040 as required by the Climate Leadership and
Community Protection Act; section 19-1507 sets forth the procedural and
substantive requirements for DEC review of submitted plans, including
issuance by DEC of a written certification that the facility has
complied with the plan submission requirement; section 19-1509 prohibits
issuance to a covered facility of a new or renewal permit by DEC unless
the facility has an approved zero carbon emissions plan; section 19-1511
sets forth requirements for facilities that have been granted suspension
or modification of the zero carbon emission requirement pursuant to
section 66-p of the Public Service Law; and section 19-1513 authorizes
DEC to promulgate implementing regulations.
Section 3 amends subdivision 3 of section 168 of the, Public Service Law
to prohibit the issuance of a certificate of environmental compatibility
and public need unless the facility has a written certification from DEC
that it has an approved zero carbon emission plan or has certified that
it will cease operations prior to January 1, 2040.
Section 4 provides that the act will take effect immediately.
 
JUSTIFICATION:
The Climate Leadership and Community Protection Act (CLCPA) mandates
that the State achieve a zero carbon electric grid by 2040. Approxi-
mately 70 percent of electric generation in New York is from fossil
fuel-fired generating facilities. However, none of these facilities are
currently required to demonstrate how they will comply with the CLCPA
zero carbon emission mandate by the 2040 deadline.
This bill requires major fossil fuel-fired electric generating facili-
ties applying to DEC for a new operating permit or renewal of an exist-
ing operating permit to submit a plan demonstrating how the facility
will achieve zero carbon emissions by 2040. The proposed plan will be
subject to public comment and public hearing requirements. DEC must
approve the plan if it determines that the plan sets forth verifiable,
enforceable and achievable measures for achieving zero carbon emissions,
including operational measures, emission controls, fuel use, renewable
replacement technologies, batter storage, or any combination thereof.
Upon approval of a zero carbon emission plan, DEC must issue a written
certification that the plan has been approved. A covered facility is not
required to submit a zero carbon emission plan if it provides written
proof to DEC that it will cease operations prior to January 1, 2040 and
that the Public Service Commission (PSC) has been notified that the
facility will cease operations. DEC is prohibited from issuing a new
operating permit or renewing an existing operating permit unless the
facility has received written certification that its zero carbon emis-
sion plan has been approved. The PSC is also prohibited fr om issuing a
certificate of environmental compatibility and public need unless the
covered facility has a written certification from DEC that it has an
approved plan, or the facility will cease operations prior to January 1,
2040. Covered facilities that have been granted a suspension or modifi-
cation by the PSC of the CLCPA's zero carbon mandate are required to
submit a plan demonstrating that the facility will achieve a two-to-one
carbon offset by January 1, 2040.
 
LEGISLATIVE HISTORY:
2022: A7895
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
3223
2023-2024 Regular Sessions
IN ASSEMBLY
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:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "power plant zero carbon emissions act of 2023".
3 § 2. Article 19 of the environmental conservation law is amended by
4 adding a new title 13 to read as follows:
5 TITLE 13
6 POWER PLANT ZERO CARBON EMISSIONS
7 Section 19-1301. Statement of findings.
8 19-1303. Definitions.
9 19-1305. Mandatory zero carbon emission plan.
10 19-1307. Review of plans and certification.
11 19-1309. Prohibition.
12 19-1311. Requirements for facilities granted suspension or
13 modification.
14 19-1313. Regulations.
15 § 19-1301. Statement of findings.
16 1. Electric generating units that burn coal, oil, diesel or natural
17 gas are significant sources of greenhouse gas emissions in the state.
18 2. The climate leadership and community protection act requires that
19 the state achieve one hundred percent zero carbon electric generation by
20 two thousand forty.
21 3. In order for the state to achieve this goal, existing fossil fuel-
22 fired electric generating facilities must demonstrate that they will
23 achieve zero greenhouse gas emissions by two thousand forty.
24 § 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 1. "Baseline emissions" shall mean maximum emissions of greenhouse
2 gases by a covered facility occurring over any twelve-month period for
3 the five years preceding the effective date of this title.
4 2. "Covered facility" shall mean an existing major electric generating
5 facility as defined in paragraph b of subdivision 1 of section 19-0312
6 of this article that burns coal, oil, diesel or natural gas.
7 3. "Existing major electric generating facility" shall mean a facility
8 in existence, or for which construction has commenced, as of the effec-
9 tive date of this title, and shall include a new facility proposed to
10 replace an existing facility at the same or substantially same location
11 whether or not construction of such new facility has commenced as of the
12 effective date of this title.
13 4. "Greenhouse gas" shall have the same meaning as set forth in subdi-
14 vision 7 of section 75-0101 of this chapter.
15 5. "Operating permit" shall have the same meaning as set forth in
16 subdivision 18 of section 19-0107 of this article.
17 6. "Renewable energy systems" shall have the same meaning as set forth
18 in section sixty-six-p of the public service law.
19 § 19-1305. Mandatory zero carbon emission plan.
20 1. The owner or operator of a covered facility shall submit to the
21 department as part of an application for a new operating permit or an
22 application to renew an existing operating permit a written plan and
23 supporting documentation demonstrating that the facility's operations
24 will, on or before the first day of January, two thousand forty, achieve
25 zero emissions of greenhouse gases.
26 2. The plan shall include, at a minimum, the following:
27 a. The number of days and hours the plant operated during each of the
28 previous five years;
29 b. The annual power output of the plant for each of the previous five
30 years;
31 c. The fuel or fuels utilized by the plant to generate power;
32 d. The facility's annual emissions of greenhouse gases, expressed in
33 tons of carbon dioxide equivalents;
34 e. The verifiable and enforceable operational measures, emission
35 controls, fuel use, renewable replacement technologies, battery storage,
36 or any combination thereof, the facility will institute in order to
37 achieve zero emissions of greenhouse gases on or before the first day of
38 January, two thousand forty; and
39 f. The schedule for implementation of each of the measures identified
40 in the plan.
41 3. The owner or operator of a covered facility may submit to the
42 department, in lieu of a mandatory zero emission plan, written certif-
43 ication that it will cease operations on or before the first day of
44 January, two thousand forty. Such certification shall specify the date
45 that the covered facility will cease operations and include proof that
46 the department of public service has been notified of the date that the
47 facility will cease operations.
48 § 19-1307. Review of plans and certification.
49 1. The department shall review a plan submitted by a covered facility
50 and shall approve such plan if it demonstrates that the facility will
51 achieve, on or before the first day of January, two thousand forty, zero
52 emissions of greenhouse gases. The department shall not approve the plan
53 unless it determines that the operational measures, emission controls,
54 fuel use, renewable replacement technologies, battery storage, or any
55 combination thereof, set forth in the plan are verifiable, enforceable
56 and achievable based on currently existing technology or technology that
A. 3223 3
1 will be reasonably available and reliable within the timeframe for
2 implementation set forth in the plan.
3 2. The department shall provide public notice of the zero carbon emis-
4 sion plan and an opportunity for public comment on the plan of not less
5 than sixty days. The department shall hold at least one public hearing
6 on the plan in the community in which the covered facility is located.
7 3. After review and consideration of public comments, the department
8 shall approve or disapprove the plan. If the department approves the
9 plan, it shall issue a written certification that the covered facility
10 complies with the requirements of this title.
11 4. Upon approval of the mandatory zero carbon emission plan, the owner
12 or operator of the covered facility shall implement the plan in accord-
13 ance with the schedule set forth in the plan and provide to the depart-
14 ment an annual compliance and progress report beginning one year after
15 the department approves the plan. The department shall make each annual
16 compliance and progress report available on its website.
17 5. If the department disapproves a proposed plan, the department shall
18 inform the owner or operator of the covered facility in writing of the
19 reasons for such disapproval. The owner or operator shall submit a modi-
20 fied plan within sixty days of receiving the department's written notice
21 of disapproval. The modified plan shall be subject to the notice and
22 public comment and hearing procedures set forth in this section.
23 § 19-1309. Prohibition.
24 The department shall not issue a new operating permit or renew an
25 existing operating permit for a covered facility unless the owner or
26 operator of the facility has submitted to the department (i) a mandatory
27 zero carbon emission plan that has been approved by the department and
28 for which a written certification pursuant to section 19-1307 of this
29 title has been issued; or (ii) written certification that it will cease
30 operations on or before the first day of January, two thousand forty.
31 § 19-1311. Requirements for facilities granted suspension or modifica-
32 tion.
33 1. In the event the public service commission grants a covered facili-
34 ty a suspension or modification pursuant to subdivision four of section
35 sixty-six-p of the public service law of the obligation to achieve zero
36 emissions, the owner or operator of such covered facility shall submit
37 to the department as part of an application for a new operating permit
38 or an application to renew an existing operating permit a written carbon
39 emission reduction plan and supporting documentation demonstrating that
40 the facility's operations will, on or before the first day of January,
41 two thousand forty, achieve a two-to-one reduction in greenhouse gas
42 emissions as measured from the facility's baseline emissions of green-
43 house gases.
44 2. The plan shall include, at a minimum, the following:
45 a. The number of days and hours the plant operated during each of the
46 previous five years;
47 b. The annual power output of the plant for each of the previous five
48 years;
49 c. The fuel or fuels utilized by the plant to generate power;
50 d. The facility's annual emissions of greenhouse gases, expressed in
51 tons of carbon dioxide equivalents;
52 e. The verifiable and enforceable operational measures, emission
53 controls or carbon offsets, or any combination thereof, the facility
54 will institute or obtain in order to achieve a two-to-one reduction in
55 greenhouse gas emissions on or before the first day of January, two
56 thousand forty, together with an analysis of the reduction in tons of
A. 3223 4
1 carbon dioxide equivalents for each such operational measure, emission
2 control or carbon offset; and
3 f. The schedule for implementation of each of the measures identified
4 in the plan.
5 3. In order to meet the requirements of this section, a covered facil-
6 ity granted a suspension or modification may utilize carbon offsets.
7 Offsets shall be verifiable, enforceable and achievable.
8 4. Carbon offsets shall include the greenhouse gas emission offset
9 projects identified in subdivision 10 of section 75-0101 of this chap-
10 ter; carbon dioxide removal by direct air capture; and the purchase of
11 zero emission vehicles for bus fleets serving a school district or muni-
12 cipality.
13 5. For purposes of this section direct air capture shall mean a facil-
14 ity, technology, or system that is powered by renewable energy and that
15 uses carbon capture equipment to capture carbon dioxide directly from
16 the air. The term direct air capture does not include any facility,
17 technology, or system that captures carbon dioxide that is deliberately
18 released from a naturally occurring subsurface spring or from natural
19 photosynthesis.
20 6. The department's review of the carbon reduction plan shall comply
21 with the procedures and requirements set forth in section 19-1307 of
22 this title.
23 § 19-1313. Regulations.
24 The department is authorized to promulgate such rules and regulations
25 as may be necessary to implement the provisions of this title.
26 § 3. Subdivision 3 of section 168 of the public service law, as added
27 by chapter 388 of the laws of 2011, is amended to read as follows:
28 3. The board may not grant a certificate for the construction or oper-
29 ation of a major electric generating facility, either as proposed or as
30 modified by the board, unless the board determines that:
31 (a) the facility is a beneficial addition to or substitution for the
32 electric generation capacity of the state; and
33 (b) the construction and operation of the facility will serve the
34 public interest; and
35 (c) the adverse environmental effects of the construction and opera-
36 tion of the facility will be minimized or avoided to the maximum extent
37 practicable; and
38 (d) if the board finds that the facility results in or contributes to
39 a significant and adverse disproportionate environmental impact in the
40 community in which the facility would be located, the applicant will
41 avoid, offset or minimize the impacts caused by the facility upon the
42 local community for the duration that the certificate is issued to the
43 maximum extent practicable using verifiable measures; and
44 (e) the facility is designed to operate in compliance with applicable
45 state and local laws and regulations issued thereunder concerning, among
46 other matters, the environment, public health and safety, all of which
47 shall be binding upon the applicant, except that the board may elect not
48 to apply, in whole or in part, any local ordinance, law, resolution or
49 other action or any regulation issued thereunder or any local standard
50 or requirement, including, but not limited to, those relating to the
51 interconnection to and use of water, electric, sewer, telecommunication,
52 fuel and steam lines in public rights of way, which would be otherwise
53 applicable if it finds that, as applied to the proposed facility, such
54 is unreasonably burdensome in view of the existing technology or the
55 needs of or costs to ratepayers whether located inside or outside of
56 such municipality. The board shall provide the municipality an opportu-
A. 3223 5
1 nity to present evidence in support of such ordinance, law, resolution,
2 regulation or other local action issued thereunder[.]; and
3 (f) the facility has received a written certification from the depart-
4 ment of environmental conservation pursuant to section 19-1307 of the
5 environmental conservation law or has submitted a written certification
6 to the department and the department of environmental conservation
7 pursuant to subdivision three of section 19-1305 of the environmental
8 conservation law.
9 § 4. This act shall take effect immediately.