Department of Environmental Conservation

D E C banner

Assessment of Public Comments Summary 6 NYCRR Subpart 227-3

Comments received from February 26, 2019 through 5:00 P.M., May 20, 2019

A total of 143 distinct comments were submitted by the public in response to the Department's proposed rule for regulating simple cycle and regenerative combustion turbines, often referred to as "peakers" (Subpart 227-3). The purpose of this summary is to highlight the key issues raised by the public and the Department's response to those issues. This summary is divided into eight sections, each summarizing a different highlighted topic from comments received.

1. General Comments
The Department received general comments in support of the regulation and clean air in New York State and responded by thanking those commenters for their support of lowering nitrogen oxide (NOx) emission rates from simple cycle and regenerative combustion turbines (SCCTs). One commenter also noted that even if the Environmental Protection Agency (EPA) does not ultimately reclassify the New York City metropolitan area as a "serious" nonattainment area, the DEC should still enact the regulation. The Department agrees.

2. Applicability
The Department received several comments seeking an applicability exemption for "black start" SCCTs. Black start sources help re-start a facility after an outage. Commenters also suggested that SCCTs be exempt from this regulation if they provide second-order contingency support. The Department agrees that black start sources should remain exempt as their use is infrequent when they are used to re-start a facility after an outage. However, the Department does not agree that contingency or other ancillary services where black start units inject electricity to the electricity grid should be exempt from these requirements. To address the black start source exemption, the Department has revised the applicability section and added a definition of black start source to the definitions section of the revised proposed rule.
The applicability section of the initial proposal required that sources must bid into the New York Independent System Operator (NYISO) Wholesale Market to be applicable to the regulation. The Department received comments suggesting that this language created a potential loophole allowing sources to pull out of the NYISO Wholesale Market and sell power separately. To address this potential loophole, the Department's revised proposed rule states that the requirements apply to those sources which inject power to the grid instead of bid into the NYISO Wholesale Market.

3. Definitions
In the proposal, the Department defined the ozone season as May 1 - October 31 which corresponds to the monitoring requirements for the ozone season. Commenters suggest that this was confusing as the existing emissions reporting ozone season is May 1 - September 30. The Department agrees and has changed this definition.
The Department received comment asking for clarification whether sources covered under the definition of common control include renewable or electric storage resources. The Department's original intent was to include renewable and electric storage resources under that definition of common control and revised the definition in the revised proposed regulation to ensure that this was clear.

4. Control Requirements
There was some question about how Subpart 227-2 and Subpart 227-3 interact as both apply to SCCTs. The proposed Subpart 227-3 requirements are applicable only during the ozone season while the requirements of Subpart 227-2 apply year-round. There was also a question about whether averaging is on a weighted basis. The Department intended for the control requirements to be on a weighted average basis and the revised proposed rule clarifies this intention.

5. Compliance Options
The Department received numerous comments regarding the compliance options which allow averaging with renewable and storage resources. Many commenters were in favor of this compliance option. Two commenters suggested averaging times shorter than 24 hours. The Department considered this option, reviewed available data and consulted with the New York State Department of Public Service (DPS) and the New York Energy Research and Development Authority (NYSERDA) with respect to the operation of the SCCTs and what is expected with the averaging option. Based on the information gathered and the newly released Peak Study Analysis developed by NYSERDA and filed by DPS, the Department believes that a 24-hour time frame is reasonable. However, the regulation requires the submission of data on the operation of renewable energy and energy storage resources be submitted to the Department annually. The Department will monitor how the averaging option is being utilized to ensure that emission reductions are being realized. If the Department finds that this option allows for circumvention of the rule, the Department may propose future changes following the requirements of the State Administrative Procedures Act.

6. Reliability & Compliance Plans
The regulation allows for the NYISO and transmission/distribution owners to assess whether a source may be needed for the reliability of the electricity grid. If a reliability need is determined by the NYISO or transmission/distribution owner, then an extension to comply may be granted to the source. This provision was developed as a result of the stakeholder process. There was general support for this provision with some exceptions. For the NYISO or transmission/distribution owners to determine if a source is needed for reliability, they must first be notified that the source is planning to shut down. This will be realized, in part, through a required compliance plan which must be submitted to the Department by March 2, 2020. Some commenters suggested that the rule should allow for compliance plans to be modified or changed. The Department disagrees as the basis for determining whether a source is needed for reliability is determined by the degree of confidence in the compliance plan. The Department expects the NYISO or transmission/distribution owners to use the compliance plans in their 2020 Reliability Needs Assessment to determine if and where reliability needs exist.

7. Permitting
The Department received comments regarding timing with respect to permitting as well as reliability assessments and interconnection to the grid. The compliance schedules in the regulation were developed in consultation with multiple stakeholders, including DPS, and offers implementation flexibility. The Department believes that there is sufficient time to comply with the regulatory requirements even when considering the current Article 10 process. The Department believes that the provisions set forth in paragraph 227-3.5(b) reflect the outcome of the stakeholder process and allows multiple options for compliance without the need for additional extensions and delayed compliance. Subpart 227-3 requires the submittal of compliance plans in 2020 and NOx emission limit requirements beginning in 2023 and 2025. With an up to four-year reliability extension, this would result in compliance in 2027 and 2029 and the Department believes that this gives affected sources enough time to comply.

8. Environmental Justice
Some comments were received stating that environmental justice organizations should be allowed to participate in the siting decisions with respect to new electricity generation. The Department intends to continue to collect stakeholder input, including from environmental justice groups. In addition, the NYISO's Comprehensive Reliability Plan (CRP) is developed through an open stakeholder process where environmental justice groups may participate. During the CRP process, the issues which the commenters raised are typically addressed.