NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ERD-21-11-00001-P
State Energy Planning Process
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Repeal of Parts 7840-7863 and addition of new Parts 7840-7863 to Title 9 NYCRR.
Statutory authority:
Energy Law, section 6; L. 2009, ch. 433
Subject:
State energy planning process.
Purpose:
To outline the conduct of the state energy planning process.
Substance of proposed rule (Full text is posted at the following State website:www.nysenergyplan.com):
In September 2009, Governor Paterson signed legislation that reinstituted Article 6 of the Energy Law, see Chapter 433 of the Laws of 2009. The legislation establishes a State Energy Planning Board ("Board"), requires the Board to adopt a State Energy Plan ("Plan") every four years, and outlines the conduct of the state energy planning proceedings. The Plan is designed to provide guidance for energy-related decisions to be made by the public and private sectors within New York State.
The proposed rule, which would repeal and replace Chapter III of Subtitle BB of Title 9 NYCRR, outlines the conduct of the state energy planning process, in order to ensure that sufficient information is collected to enable the Board to address the goals and objectives identified in the enabling legislation. This summary provides a brief description of the substance of each Part contained in the new rule, to be codified at 9 NYCRR Part 7840-7863.
Subchapter A, General Provisions
Part 7840 contains an introduction to the Chapter.
Part 7841 contains definitions for terms used in the Chapter.
Part 7842 sets forth how the public can access records of the Board, and establishes procedures for the determination of confidential status of information submitted to the Board.
Subchapter B, Procedures
Part 7844 describes the scoping procedure for the energy planning process.
Part 7845 indicates how the Board will commence the new State Energy Planning Proceedings.
Part 7846 describes the filing and service of documents.
Part 7847 provides for issuance of a draft State Energy Plan.
Part 7848 governs the conduct of public comment and evidentiary hearings on the Draft State Energy Plan.
Part 7849 governs the issuance of subpoenas for records, and subpoenas to compel attendance at evidentiary hearings.
Part 7850 governs waiver or requirements of Chapter III.
Part 7851 provides for issuance of the Sate Energy Plan.
Part 7852 governs amendments to the State Energy Plan.
Subchapter C, Plans of Major Energy Suppliers
Part 7856 contains general provisions relating to the filing of information by major energy suppliers.
Part 7857 sets forth information filing requirements for major electricity suppliers.
Part 7858 sets forth information filing requirements for major natural gas suppliers.
Part 7859 sets forth information filing requirements for major petroleum suppliers.
Part 7860 sets forth information filing requirements for major coal suppliers.
Part 7861 sets forth information filing requirements for major steam suppliers.
Part 7862 sets forth information filing requirements for major biogas, biofuel and biomass producers.
Part 7863 provides for submission of end-use energy efficiency, renewable and emerging technology plans by major energy suppliers and energy service companies.
Text of proposed rule and any required statements and analyses may be obtained from:
Jill Kendall, Legal Dept., NYS Energy Research and Development Authority, 17 Columbia Circle, Albany, NY 12203, (518) 862-1090 ext. 3321, email: jrk@nyserda.org
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority:
The statutory authority for these proposed regulations is Section 6 of the Energy Law. In September 2009, Governor Paterson signed legislation that reinstituted Article 6 of the Energy Law, see Chapter 433 of the Laws of 2009. The legislation establishes an Energy Planning Board ("Board"), requires the Board to adopt a State Energy Plan ("Plan") every four years, and outlines the conduct of the state energy planning proceedings. The Plan is designed to provide guidance for energy-related decisions to be made by the public and private sectors within New York State. Section 6-102(4) empowers the Board to adopt rules and regulations "as necessary and appropriate" to implement the legislation.
The statute states that the Board shall consist of fourteen voting members: the Chair of the Public Service Commission, the Commissioner of Environmental Conservation, the Commissioner of Economic Development, the Commissioner of Transportation, the Commissioner of Labor, the Director of the State Emergency Management Office, the Chair of the Consumer Protection Board, the Commissioner of Health, the President of the New York State Urban Development Corporation, the Secretary of State, the President of the New York State Energy Research and Development Authority, and a representative appointed by each of the Governor, the speaker of the assembly and the temporary president of the senate1. The presiding officer of the New York Independent System Operator is a nonvoting member of the Board.
Section 6-102(2)(b) of the legislation creates regional planning councils, representing two regions - a Downstate region, consisting of New York City and 8 other downstate counties; and an Upstate region, consisting of the remaining counties of the State. The Governor, temporary president of the Senate and speaker of the assembly each appoint 3 regional planning members per region, for a total of 18 council members. Regional council members may solicit input from stakeholder interests within their region, and must transmit a report to the Board containing any recommendations specific to their region "on a schedule concurrent with the release of the draft state energy plan."
The planning process created by the law is generally similar to the process that existed under the former Article 6 of the Energy Law, as well as the process followed under Governor Paterson's April 2008 Executive Order2, which resulted in issuance of an Energy Plan in December 2009. The first draft of the new plan must be presented for public comment by September 1, 2012 and the final version of such plan must be issued by March 15, 2013.
2. Legislative Objectives:
Section 6-102(5) of the Energy Law directs that in its consideration and development of policies, programs and other actions, the Board shall be guided by the following goals:
• improving the reliability of the State's energy systems;
• insulating consumers from volatility in market prices;
• reducing the overall cost of energy in the State; and
• minimizing public health and environmental impacts, particularly the environmental impacts related to climate change.
Energy Law section 6-104(2) directs that the Plan include the following: energy demand and supply forecasts, together with an assessment of the ability of existing energy supply sources and transportation and transmission systems to meet future needs; identification and assessment of the costs, risks, benefits, uncertainties and market potential of energy supply source alternatives; emerging trends in supply, price, and demand; an analysis of security issues, considering both natural and human threats to the State's energy systems; an environmental justice analysis; urban planning/smart growth alternatives to reduce energy/transportation demand; and an inventory of greenhouse gas emissions, as well as strategies for facilitating and accelerating the use of low carbon energy sources and/or carbon mitigation measures.
In developing the Plan, the Board must identify: (1) policies and programs designed to maximize cost-effective energy efficiency and conservation activities to meet projected demand growth, and (2) the most appropriate state agency or authority with the responsibility for implementing or overseeing such prioritized programs or activities. Section 6-102(5) (a) and (b). The Plan must also (1) recommend administrative and legislative actions to implement policies, objectives and strategies identified in the Plan, and (2) include an assessment of the impacts of implementation of the Plan on "economic development, health, safety and welfare, environmental quality, and energy costs for consumers, specifically low-income consumers." Section 6-104(2)(j) and (k).
The legislation empowers the Board to solicit information from major energy suppliers and other entities sufficient to address the goals and specific components of the Plan identified by the Legislature, as explained above. Section 6-106(3). The statute further empowers the Board to seek "such other information" from major energy suppliers and others "as the Board may, by regulation, require to carry out the purposes" of the legislation. Section 6-106(3)(a)(x).
3. Needs or Benefits:
The regulations outline the conduct of the state energy planning process, in order to ensure that sufficient information is collected to enable the Board to address the goals and objectives identified in the enabling legislation. Specifically: Subchapter A, "General Provisions," defines key terms, sets forth how the public can access records of the Board, and establishes procedures for the determination of confidential status of information submitted to the Board. Subchapter B, "Procedures," addresses the filing and service of documents required to be submitted under the regulations, provides for issuance of a draft and final Plan, and governs the conduct of public comment and evidentiary hearings. Subchapter C, "Plans of Major Energy Suppliers," sets forth information filing requirements of major energy suppliers, defined as any major electricity, natural gas, petroleum, coal or steam supplier; and major biogas, biofuel, and biomass producers or processors. See Section 7841(a)(44). The regulations in turn define "major" with regard to each of those sources of energy.
In addition to the specific information described in Subchapter C, the regulations empower the Board to require the submission by any major energy supplier of any other information the Board deems necessary to meet its obligations under the enabling legislation. See 7857.3 (electricity); 7858.3 (natural gas); 7859.3 (petroleum); 7860 (coal); 7861.5 (steam); 7862.3 (biogas, biofuels, biomass).
4. Costs:
Recipients of information requests from the Board will obviously incur costs in responding. However, unlike prior state energy planning regulations, which specified dates by which information was required to be submitted to the Board, these proposed regulations state that the Chair of the board will establish a schedule for submission of information requested by the Board. Notably, the regulations direct the Board to "make every effort to obtain relevant information under this Subchapter C from entities that are members of the Board, including the Bulk System Operator, before requiring filings from major energy suppliers." Section 7856.2. Thus, for example, the Board will rely on publicly available data for state energy planning analysis work. Examples include the following:
Annual "Gold Book" Load and Capacity Data, New York Independent System Operator. Provides electricity load and peak demand history and 10-year forecasts at the system level, as well as extensive data for each generating facility in New York, including capacity ratings, generation, location, age, and primary and back-up fuels.
Annual Energy Outlook, U.S. Energy Information Administration. Provides 25-year forecasts of energy use and prices for all fuels and all sectors for the U.S. and for the Mid-Atlantic region (New York, Pennsylvania, New Jersey, and Delaware), under various scenarios and assumptions, which serve as useful indicators of expectations for New York.
Five Year Book, New York Department of Public Service. Provides annual data on electricity and gas delivered by each utility, average cost per customer for electricity and gas by utility and customer type, average annual total electricity and gas annual bill by utility and customer type, and cost of electricity and gas to customers by cost components.
Ambient Air Quality Report, New York State Department of Environmental Conservation, Air Division. Provides annual air quality monitoring data and exceedance data for sulfur dioxide, nitrogen oxides, ozone, carbon monoxide, inhalable particulates, and lead.
Oil, Gas and Mineral Resources Annual Report, New York State Department of Environmental Conservation, Division of Mineral Resources. Provides data on production and market value of natural gas and oil produced, permits issued, well completions, underground natural gas storage, acreage, reclamation, and enforcement.
Two other documents will be very helpful in developing the Plan. The first is the Reliability Compliance Program Report, issued by the New York State Reliability Council. This report contains extensive recent data on metrics used to measure the reliability of the electric system, including resource adequacy, transmission capability, operating reserves, system protection, system restoration, and compliance with local reliability rules. The second document is the Reliability Needs Assessment, prepared by the New York Independent System Operator. This document provides a long-term reliability assessment of both reserve adequacy and transmission security of the New York Bulk Power System conducted over a 10-year future planning period.
Analysis and information obtained from other State resources and plans, such as the Interim Report of the Climate Action Plan3, the New York State Emergency Management Plan4, and transportation planning documents, will also be integrated into the State Energy Plan, where appropriate.
Additionally, The Division of Homeland Security and Emergency Services (DHSES) was statutorily created in July 2010 (http://www.dhses.ny.gov/about/legislation/documents/Final-Merger-Bill.pdf), consolidating five agencies, including the Office of Emergency Management (SEMO). As the Board addresses security issues in the Plan, the Board will tap into the various offices of DHSES (Counter Terrorism, Emergency Management, Fire Prevention and Control, Cyber Security, and Interoperable & Emergency Communications).
Thus, every effort will be made to mine public data as well as information in the possession of state agencies and other entities on the Board prior to requiring submission by major energy suppliers under Subchapter C. However, to the extent that the Board determines that it needs information from major energy suppliers, it is doing so meet its obligations to address the numerous items set forth in the enabling legislation, as detailed above in the Legislative Objectives section.
5. Paperwork:
As explained in the Costs section above, the Board will make every effort to obtain needed information from entities that serve on the Board, as well as various sources of public information. This will significantly reduce paperwork obligations on the part of entities that receive information requests from the Board.
6. Local Government Mandates:
As noted in the Legislative Objectives section above, the legislation empowers the Board to solicit information from major energy suppliers and other entities sufficient to address the goals and specific components of the Plan identified by the Legislature, Section 6-106(3). Examples of other entities listed in the statute include the following: energy transmission or distribution companies; electric, gas or steam corporations; owners or operators of electric generation facilities; and the like. To the extent a municipality is engaged in one or more of these activities, the Board may request that it submit relevant information. Again, the Board will first make every effort to obtain necessary information from entities that serve on the Board, as well as various sources of public information.
7. Duplication:
As explained above in the Costs section, the Board will make every effort to obtain relevant information from state agencies that have collected such information in their regulatory or other capacity, rather than request that major energy suppliers and others provide such information to the Board. Additionally, to extent that major energy suppliers or others file information with federal agencies that is relevant to the state's planning process, the Board will make every effort to minimize additional work, e.g. allow copies of federal filings or relevant portions of such filings to be submitted to the Board.
8. Alternative Approaches:
The Legislative Objectives section sets forth the numerous issues that the Plan must address, as well as the assessments and recommendations that the Board must provide. The Board has determined that the optimal- and indeed the only- means of accomplishing theses tasks is to: (1) obtain public data as well as information in the possession of state agencies and other entities on the Board; and (2) when necessary, request information from major energy suppliers and other entities listed in the enabling legislation.
The Board has already commenced stakeholder outreach efforts in the process of developing the Draft Plan. The Board held its first meeting on November 23, 2010, at which time the Board announced that it would be issuing (1) a Draft Scope, and (2) implementing regulations. On March 10, 2011, the Draft Scope was posted on the Board's website (http://www.nysenergyplan.com/scope.html), as well as provided directly to a stakeholder list consisting of over 650 entities and individuals. The purpose of the Scope is to broadly define topic areas for development in the Draft Plan, consistent with the enabling legislation. The deadline for written comments on the Draft Scope was April 29, 2011; the Board received over 60 comments. Commencing on March 24, 2011, the Board's staff also began holding meetings with various stakeholder groups to seek input to the Draft Scope and to discuss issues of concern for potential development in the Plan. Stakeholders have included state and local government agencies and associations; business, consumer and industrial groups; utilities, energy suppliers, and energy industry groups; large commercial and industrial energy users, environmental and community organizations, clean/renewable energy entities, energy service companies, and workforce development groups. The Board's staff expects to meet with representatives from over 70 interest groups. Each meeting is initiated with identification of the goals and requirements set forth by the enabling legislation. In the development of prior state energy plans, many stakeholders have voluntarily submitted industry data and information, and they have indicated an interest in providing data and information to support the upcoming planning process.
9. Federal Standards:
The Plan is designed to address the goals identified by the Legislature, e.g. improving the reliability of New York State's energy systems (see section 6-102(5)) and to provide guidance for energy-related decisions to be made by the public and private sectors within the state. The Board does not envision any conflicts with standards established by the federal government in this area.
10. Compliance Schedule:
Unlike prior state energy planning regulations, which specified dates by which information was required to be submitted to the Board, these proposed regulations state that the Chair will establish a schedule for submission of information requested by the Board. The Chair will ensure that recipients of information requests are given sufficient time within which to respond.
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1 The Department of Economic Development (DED) and the Urban Development Corporation (UDC) are known as Empire State Development (ESD), and the President and CEO of ESD serves as the Commissioner of DED. Consequently, the board appointee for UDC and DED is the Commissioner of DED.
2 Executive Order No. 2 (April 9, 2008) http://www.nysenergyplan.com/presentations/EO_2.pdf
The proposed rule will not impose an adverse economic impact, or reporting, recordkeeping or other compliance, on small businesses or local governments.
Reasons for Finding:
The legislation empowers the Board to solicit information from major energy suppliers and other entities sufficient to address the goals and specific components of the Plan identified by the Legislature, Energy Law section 6-106(3). Examples of other entities listed in the statute include the following: energy transmission or distribution companies; electric, gas or steam corporations; owners or operators of electric generation facilities; and the like. To the extent a small business or municipality is engaged in one or more of these activities, the Board may request that it submit relevant information. However, it is not expected that small businesses will fall under the definition of major energy suppliers. In any event, the proposed rule requires that the Board first make every effort to obtain necessary information from entities that serve on the Board, as well as various sources of public information before submitting information requests to any entities, including small businesses or local governments. Further, to the extent that small businesses or local governments are impacted by this proposed rule at all, it is not anticipated that either group will need to retain additional professional services to respond to information requests from the Board.
Rural Area Flexibility Analysis
Finding:
The proposed rule will not impose an adverse economic impact on rural areas. It does not impose significant reporting, recordkeeping or other compliance on public or private entities in rural areas.
Reasons for Finding:
The legislation empowers the Board to solicit information from major energy suppliers and other entities sufficient to address the goals and specific components of the Plan identified by the Legislature, Energy Law section 6-106(3). Examples of other entities listed in the statute include the following: energy transmission or distribution companies; electric, gas or steam corporations; owners or operators of electric generation facilities; and the like. To the extent a public or private entity located in a rural area is engaged in one or more of these activities, the Board may request that it submit relevant information. However, the proposed rule requires that the Board first make every effort to obtain necessary information from entities that serve on the Board, as well as various sources of public information before submitting information requests to any entities, including those located in rural areas.
Job Impact Statement
The proposed rule will not have a substantial adverse impact on jobs and employment opportunities.
