PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Repeal of Parts 7840-7863; and addition of new Parts 7840-7863 to Title 9 NYCRR.

State energy planning process.

To outline the conduct of the state energy planning process.

In September 2009, Chapter 433 of the Laws of 2009 became effective and reinstituted Article 6 of the Energy Law. 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. Chapter 195 of the Laws of 2011 was signed into law by Governor Cuomo on July 21, 2011. Chapter 195 enacted minor amendments to Article 6 in order to change the composition of the Board and streamline its operations.

The rule, which repeals and replaces 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 rule, which will 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.

Nonsubstantive changes were made in Parts 7841, 7842, 7848, 7852, 7856, 7857, 7858, 7861 and 7862.

David A. Munro, Deputy Counsel, NYS Energy Research and Development Authority, 17 Columbia Circle, Albany NY 12203, (518) 862-1090, email: [email protected]

1. Statutory Authority

The statutory authority for these regulations is Section 6 of the Energy Law. In September 2009, New York enacted 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.

Chapter 195 of the Laws of 2011 enacted minor amendments to the statute, in order to change the composition of the Board and streamline its operations. Specifically, as those statutory changes relate to the regulations:

• Section 6-106 was amended to require at least three public hearings on the Draft State Energy Plan in each of the two regions defined in § 6-102; section 7848.2 of the regulations has been changed accordingly.

• Section 6-106(3)(e) now allows the Board to require a single comprehensive submission of required information from industry or trade groups of utilities and major energy suppliers, rather than individual submissions from their members; sections 7856.1 and 7856.2 have been revised accordingly.

• Section § 6-106(6) was amended to require the Board to hold public comment hearings prior to adopting an amendment to the energy plan, but to make evidentiary hearings, if requested, discretionary, rather than mandatory; section 7852.3 of the regulations has been revised consistent with this amendment.

The Board consists of thirteen (13) voting members: the President of the New York State Energy Research and Development Authority, who serves as Chair; the Chair of the Public Service Commission; the Commissioner of Environmental Conservation; the President of Empire State Development; the Commissioner of Transportation; the Commissioner of Labor; the Commissioner of Health; the Secretary of State; the Commissioner of Agriculture and Markets; the Commissioner of the Division of Homeland Security and Emergency Services; and a representative appointed by each of the Governor, the Speaker of the Assembly and the Temporary President of the Senate. 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 (e.g. local governments, labor unions, ratepayers, business, trade associations, community organizations), and must transmit a report to the Board containing any recommendations specific to their region "on a schedule determined by the Board to be appropriate for consideration of such report in the development 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 Order, 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). Additionally, section 6-106(3)(d) empowers the Board to seek "such other information from owners and operators of electric generating power plants as the Board may require to carry out the purposes" of the legislation.

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 "seek 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 New York State Emergency Management Plan, transportation planning documents, and others 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 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 and Emergency Communications).

Thus, to the extent possible and practicable, the Board will rely on publicly available data in developing the Plan. However, the regulations provide the authorization for the Board to seek the required information from major energy suppliers and/or other entities, and the Board will do so only to the extent that the information is not easily accessible from other sources.

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. Alternatives

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 these 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 undertaken 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 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 met with representatives from over 70 interest groups. At the beginning of each meeting, staff identified the goals and requirements set forth in 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.

Executive Order No. 2 (April 9, 2008) http://www.nysenergyplan.com/presentations/EO_2.pdf

http://www.semo.state.ny.us/uploads/2011 01 NYS%20CEMP Vol 02.pdf

http://www.dhses.ny.gov/about/legislation/documents/Final-Merger-Bill.pdf

Finding:

The 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.

Finding:

The 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.

The rule will not have a substantial adverse impact on jobs and employment opportunities.

Introduction: In September 2009, Chapter 433 of the Laws of 2009 became effective and reinstituted Article 6 of the Energy Law. 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. Proposed regulations entitled "State Energy Planning Proceeding" were published in the State Register on May 25, 2011. Seventeen entities submitted written comments on the proposed regulations. This document summarizes and responds to the major comments that were submitted to the Board.

Additionally, Chapter 195 of the Laws of 2011 was signed into law by Governor Cuomo on July 21, 2011. Chapter 195 enacted minor amendments to Article 6 in order to change the composition of the Board and streamline its operations. See the Revised Regulatory Impact Statement for an explanation as to how those statutory changes relate to the regulations.

An agency must provide notice of a revised rulemaking whenever the revised rule constitutes a "substantial revision" of the original proposed rule. State Administrative Procedure Act section 202 (4-a)(a). "Substantial revision" means any addition, deletion or other change in the text of the rule which "materially alters its purpose, meaning or effect," SAPA section 102(9). Neither the changes made to the regulations in response to public comments, nor those made to conform to the 2011 amendments to the Energy Law, constitute substantial revisions. Consequently, the Board is not required to solicit further public comments on the revised regulations.

1. Comment: Much of the information the Board is empowered to solicit from major energy suppliers and others can be readily obtained from state agencies (Department of Public Service, Department of Environmental Conservation) and federal agencies (Federal Energy Regulatory Commission, Department of Energy), the New York Independent System Operator (NYISO), or the Eastern Interconnection Planning Committee, instead of burdening major energy suppliers with such requests.

Response: In Section 7856.2, the regulations direct the Board to "seek to obtain relevant information under this Subchapter C from entities that are members of the Board, including the Bulk System Operator, and other public sources before requiring filings from major energy suppliers." To the extent possible and practicable, the Board will rely on publicly available data in developing the Plan. See the Revised Regulatory Impact Statement for a description of the various documents the Board will rely on. Every effort will be made to obtain and utilize public data as well as information in the possession of state agencies and other entities on the Board prior to requiring submissions by major energy suppliers and other entities under Subchapter C. However, to the extent that the Board determines that it needs information from major energy suppliers, it is doing so to meet its obligations to address the numerous items set forth in the enabling legislation.

2. Comment: Air emissions information (NO, SO, CO, mercury, PM) can be obtained by reviewing major energy supplier filings with DEC.

Response: See response to Comment 1. The Board agrees that this and other relevant information can be obtained from DEC.

3. Comment: Information requirements related to renewable energy and the collection of information for annual capital installation and operation costs (per Part 7863) should be obtained from NYSERDA, or on an aggregate basis from the PSC or the NYISO.

Response: See response to Comment 1. The Board will obtain such information from these entities and/or others to the extent such information is available.

4. Comment: In light of 2011 amendments to the enabling legislation authorizing the Board to request the submission of a single comprehensive submission from industry groups, trade associations or a combination of such groups in place of submission by individual major energy suppliers, the Board should clarify in section 7856.2 whether submissions should be made by the associations instead of from individual members.

Response: The 2011 amendments to the Energy Law state that the Board "may require a single, comprehensive submission from industry groups, trade associations, or combinations of such groups and associations in place of submissions by individual member companies." (Section 6-106(3)(e)). The Board or Chair will decide on a case-by-case basis whether to require a single comprehensive submission, or to instead request individual major energy suppliers to submit specified information.

5. Comment: Because the collection of company-specific and even industry-specific information, data, facts, trends, etc is not the primary function of a trade association, it is unreasonable to encumber a trade association with the collection and submittal of such information.

Response: See response to previous Comment. The Board will weigh this comment in deciding how to exercise its authority, and will not require submissions from industry groups, trade associations and the like without first understanding the practicalities or impediments of seeking such information from those entities.

6. Comment: While collective reporting by trade associations is appropriate for renewable energy sources given that they have little or no environmental impacts, reporting should be on an individual basis for other major energy suppliers, since the State needs to have specific information upon which to make energy forecasts and conduct planning.

Response: See responses to Comments 4 and 5.

7. Comment: The draft regulations require reporting that is not (a) authorized by the enabling legislation, and/or (b) germane to the enactment of energy policy. For example, information pertaining to: weighted average fuel type by cost; operating costs by type; revenues by type (Section 7857.2(a)(17)); operating and maintenance expenses (section 7857.2(a)(26)(iv)); and the number of employees (section 7856.6) is not information that is mandated to be collected under the Energy Law. Moreover, the gathering of much of this information is violative of proprietary protections, intrusive and not consistent with policy development. At the very least, there should be a strong mechanism in place to ensure that reporting of confidential business information remains so.

Response: Section 6-102(5) of the Energy Law directs that in its consideration and development of policies, programs and other actions, the Board shall, among other identified goals, be guided by the following:

• insulating consumers from volatility in market prices and

• reducing the overall cost of energy in the State.

Energy Law section 6-104(2) directs that the Plan include the following: "identification and assessment of the costs, risks, benefits, uncertainties and market potential of energy supply source alternatives; emerging trends in supply, price, and demand."

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 referenced above. (Section 6-106(3)) The statute further empowers the Board to seek "such other information from owners and operators of electric generating power plants as the board may require to carry out the purposes of this article" (Section 6-106(3)(d).

In light of the broad authority granted to the Board by the Legislature, the Board is authorized to request the various items listed by the commenter. Specifically, the Board intends to evaluate future energy and infrastructure requirements and costs, supply options, and system reliability needs. However, the final regulations delete section 7857.2(a)(17), pertaining to fuel costs, operating costs, and revenue for individual units. The Board will determine at a future time whether it needs to obtain such information, or related information, from major energy suppliers and/or other entities in order to address the goals and specific components of the Plan identified by the Legislature; and if so, it will request such information pursuant to the sections of the Energy Law cited above and/or section 7857.3 (electricity); 7858.3 (natural gas); 7859.3 (petroleum); 7860 (coal); 7861.5 (steam); or 7862.3 (biogas, biofuels, biomass).

Finally, to the extent that entities submitting information to the Board contend that such information is confidential (e.g. trade secrets, proprietary information, etc), Part 7842 establishes procedures for requesting and determining the confidential status of information submitted to the Board.

8. Comment: The Board should be authorized to collect information regarding the impact of taxes, fees and other charges levied on energy customer bills, since reducing the overall cost of energy in New York State is one of the stated goals of the state energy planning process.

Response: The Board has the authority to collect such information if necessary. The Board intends to analyze the impact of energy and regulatory policies on energy prices and total energy bills paid by consumers, particularly for low-income consumers, as well as examine the drivers of energy costs for New York's residential, commercial, industrial, and transportation end-users.

9. Comment: Emissions reporting of carbon dioxide (CO) should be detailed separately as biogenic and fossil, consistent with the requirements of the Regional Greenhouse Gas Initiative (RGGI) and the USEPA Mandatory Reporting Rule. As such, section 7857.2(22) should be revised.

Response: As was stated in the comment, units regulated under 6 NYCRR Part 242 will be required to partition CO emissions into biogenic and non-biogenic as required by 40 CFR Part 75. However, units which are not regulated under 6 NYCRR 242 are not required to partition their CO emissions. The Board finds no reason to impose additional costs on those facilities to partition their CO emissions into biogenic and non-biogenic at this time. In addition, while it is extremely important to accurately account for the carbon released as CO emissions from biogenic sources, the science is continuing to evolve and EPA has deferred, for a period of three years, the application of the Prevention of Significant Deterioration (PSD) and Title V permitting requirements. EPA is reviewing approaches to accounting for the carbon released as greenhouse gas emissions from bioenergy and other biogenic sources. Accordingly, revisions to section 7857.2(22) are not warranted at this time.

10. Comment: To capture a more complete CO emissions picture, text should be added to section 7857.2 to encourage accounting for both up-stream (lifecycle) and avoided emissions. The regulations should also include reporting on any emission reductions and/or carbon offsets, greenhouse gas or otherwise, achieved and/or generated by project.

Response: The Board does not plan to collect data on up-stream (lifecycle) and avoided emissions. The Plan will likely include targeted fuel cycle analyses to support policy development. It is envisioned that the Board will turn to published materials to support such analysis. Where New York State- specific information exists, such will be used to support fuel cycle analysis; to the extent the needed published material will be of regional or national scope, the application of such information to New York-specific circumstances will be applied, as appropriate.

11. Comment: Several commenters opined that workforce utilization information, required by section 7856.6, is not relevant to the development of a state energy plan. Conversely, another commenter suggested the addition of a section evaluating the trends and future needs of the utility industry's workforce, such as educational and training needs.

Response: Given the breadth of the authority conferred by the enabling legislation, the Board is empowered to request such information in order to inform the coordination of energy policy and workforce utilization activities, as well as to ensure that the operation and necessary expansion of the energy sector is not inhibited by a shortage of skilled workers. Specifically, the Board is authorized by section 6-108 of the Energy Law to collect information on workforce utilization, especially as it pertains to the reliability of the State's electric system. Consequently, the regulations have been revised to address future educational and training needs for the workforce. Notably, by including the Department of Labor as a Board member for the first time, the Legislature determined that an assessment of workforce utilization (i.e. jobs) is an important component of the energy planning process.

12. Comment: The regulations should reflect the existence of Regional Planning Councils, and specify how such Councils will operate.

Response: The Regional Planning Councils are entities created by statute independent from the Energy Planning Board. The legislation states how the Councils will be established and organized, and sets forth their role in the planning process. The Councils themselves, not the Board, will determine how they will operate.

13. Comment: The New York State Reliability Council (NYSRC) is a valuable resource to the Board in evaluating the impact of proposed policies on electric system reliability, and consequently the NYSRC should be referenced in both the definitional section and in section 7857.1, which would authorize the Board to solicit information from the NYSRC.

Response: The Board has revised the regulations to (1) add a definition of the Reliability Council in section 7841, and (2) reference the Reliability Council under section 7857.1, Electric Plans.

14. Comment: The Board's rules should not require submission of critical energy infrastructure location information that is not directly necessary for the State Energy Planning process. For example, Section 7857.2(b)(13) and (17) Electric Assets, Section 7858.2(e) Natural Gas Assets, and Section 7861.3(a) Steam Assets ask for critical energy infrastructure location information that will have limited usefulness to the State Energy Planning process. The regulations should recognize that requests for the location of utility infrastructure facilities information do not require the submission of "spatially referenced data" unless specifically required.

Response: Per the statutory requirements, the Board is authorized to assess both human and natural security threats to the State's energy systems. Information collected on the location of energy infrastructure which is spatially referenced is necessary for the Board to carry out its objectives. Such information may be used as inputs for tasks such as system modeling and GIS mapping in the development of the Energy Plan. In addition, spatially referenced information may be needed to allow the Board to address specific security and emergency planning questions. To the extent that entities submitting information to the Board contend that such information is confidential (e.g. trade secrets, proprietary information, etc), Part 7842 establishes procedures for requesting and determining the confidential status of information submitted to the Board.

15. Comment: The regulations should authorize the Board to obtain information from nuclear generating plants, particularly related to emissions, leaks, regulatory violations and specific exemptions granted by the Nuclear Regulatory Commission, as well as the amount of decommissioning funds set aside by each plant. Nuclear plants are connected to all of the significant issues in Article 6, particularly security issues and environmental justice. For example, the evacuation of New York City in an Indian Point disaster would pose greater difficulties for low income, environmental justice communities.

Response: The Board has the authority to collect much of the referenced information on nuclear plants under Section 7857, Electric Plans, which is "applicable to major electricity suppliers and any other entity from which the board deems appropriate" and all "generation units that are connected to the grid." Per the enabling legislation, the Energy Plan will include an analysis of environmental justice and security issues, considering both natural and human threats to the State's energy systems.

16. Comment: Given that some of the state's power plants, storage facilities, etc. are potentially vulnerable to severe weather events that may occur as a result of climate change, the regulations should collect appropriate information so that adaptation to climate change and emergency planning related to the energy supply can be better coordinated.

Response: The Board has the authority to collect such information, if it deems necessary, to fulfill the statutory requirements. The Board intends to analyze natural and human security threats to the State's energy systems. The statute also requires the Energy Plan to analyze public health and environmental impacts related to climate change.

17. Comment: Reporting on the details and effectiveness of energy conservation, efficiency and demand reduction are essential and should be a requirement of these regulations. Similarly, reporting on renewable energy installations should also be a requirement.

Response: The enabling legislation directs the Board to "identify policies and programs designed to maximize cost-effective energy efficiency and conservation activities to meet projected demand growth," Section 6-102(5), and to identify and assess the "costs, risks, benefits, uncertainties and market potential of energy supply alternatives, including demand-reducing measures, renewable energy resources of electric generation," etc. The Board will make every effort to obtain relevant information, as deemed necessary for the development of the Energy Plan, on the details and effectiveness of energy conservation, efficiency, and demand reduction as well as renewable energy installations from entities that are members of the Board, including the NYISO, before requiring filings from major energy suppliers.

18. Comment: If hydrofracking is permitted, the following information should be obtained by the Board: identification of all chemical products used as additives in the drilling process; total fluids and amount and concentration of compounds remaining in the ground after drilling is completed; quantity of methane released from entire drilling process including valves; air monitoring results of drilling process for complete suite of air toxics; all environmental releases, spills and untoward events, such as fires and explosions.

Response: High-volume hydraulic fracturing would occur under well permits issued by the Department of Environmental Conservation (DEC), and the permitting process would dictate the information required from applicants before permit issuance, during operations and after the completion of drilling and high-volume hydraulic fracturing. Decision-making on any such permitting is occurring in the context of a separate public environmental review process that has been ongoing since mid-2008. In September 2011, DEC announced that in addition to a final Supplemental Generic Environmental Impact Statement on High-Volume Hydraulic Fracturing, DEC will also propose new regulations to govern this permitting process. Suggestions for application and reporting requirements will be addressed by DEC in responses to comments on the draft SGEIS and draft regulations. To the extent the Board determines that such information is relevant to development of the State Energy Planning Board, the Board can obtain the information from DEC, whose Commissioner is a member of the Board.

19. Comment: Regarding Part 7862- Biogas, Biofuel and Biomass Plans- information requirements should include: other fossil fuels are often used and they should be quantified. The nature of the feedstock is very important and should be specified in reporting.

Response: The regulations have specific provisions that address fossil fuels and feedstock used in the production of biogas, biofuel, and biomass. Section 7862 gives the Board the authority to collect information on "the type(s), volume, and prices paid for feedstock used to produce or process the end-product," as well as the "type and quantities of energy and fuel used to produce or process the end-product."

20. Comment: Information sought regarding biogas, biofuel and biomass plans (part 7862) should be amended to add that for energy suppliers, the reporting requirements should include, as appropriate, the use(s) of disposal method(s) for biogas, biofuels, and biomass and associated greenhouse gas emissions if not used for energy.

Response: For purposes of addressing energy-related waste management issues, the Board will rely on information collected and used by other agencies and authorities that are involved in waste disposal policy development and implementation.