Amd SS183 & 189, Ec Dev L; amd S9, Chap 316 of 1997; amd S186-a, Tax L; amd S11, Chap 645 of 2006; amd S1005,
Pub Auth L
Extends provisions of law relating to low cost power; extends expiration of the power for jobs program and the energy costs savings benefit program; establishes an energy audit program.
STATE OF NEW YORK
________________________________________________________________________
1
Eighth Extraordinary Session
IN SENATE
June 29, 2009
___________
Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
twice and ordered printed, and when printed to be committed to the
Committee on Rules
AN ACT to amend the economic development law, chapter 316 of the laws of
1997 amending the public authorities law and other laws relating to
the provision of low cost power to foster statewide economic develop-
ment, the tax law and chapter 645 of the laws of 2006 amending the
economic development law and other laws relating to reauthorizing the
New York power authority to make contributions to the general fund, in
relation to extending the expiration of the power for jobs program and
the energy cost savings benefits program; to amend the public authori-
ties law, in relation to authorizing an additional voluntary contrib-
ution into the state treasury under the power for jobs program; and to
amend the public authorities law, in relation to an energy audit
program
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs 2 and 4 of subdivision (h) of section 183 of the
2 economic development law, paragraph 2 as amended by section 1 of part Y
3 of chapter 59 of the laws of 2008 and paragraph 4 as amended by chapter
4 89 of the laws of 2007, are amended to read as follows:
5 2. During the period commencing on November first, two thousand five
6 and ending on [June thirtieth] May fifteenth, two thousand [nine] ten
7 eligible businesses shall only include customers served under the power
8 authority of the state of New York's high load factor, economic develop-
9 ment power and other business customers served by political subdivisions
10 of the state authorized by law to engage in the distribution of electric
11 power that were authorized to be served by the authority from the
12 authority's former James A. Fitzpatrick nuclear power plant as of the
13 effective date of this subdivision whose power prices may be subject to
14 increase before [June thirtieth] May fifteenth, two thousand [nine] ten.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14489-02-9
S. 1 2
1 Provided, however, that the total amount of megawatts of replacement and
2 preservation power which, due to the extension of the energy cost
3 savings benefits, are not relinquished by or withdrawn from a recipient
4 shall be deemed to be relinquished or withdrawn for purposes of offering
5 such megawatts by the authority for reallocation pursuant to subdivision
6 thirteen of section one thousand five of the public authorities law.
7 Provided, further, that for any such reallocation, the authority shall
8 maintain the same energy cost savings benefit level for all eligible
9 businesses using any available authority resources as deemed feasible
10 and advisable by the trustees pursuant to section seven of part U of
11 chapter fifty-nine of the laws of two thousand six.
12 4. Applications for an energy cost savings benefit shall be in the
13 form and contain such information, exhibits and supporting data as the
14 board may prescribe. The board shall review the applications received
15 and shall determine the applications which best meet the criteria estab-
16 lished for the benefits pursuant to this subdivision and it shall recom-
17 mend such applications to the power authority of the state of New York
18 with such terms and conditions as it deems appropriate; provided, howev-
19 er, that for energy cost savings benefits granted on or after June thir-
20 tieth, two thousand [seven] nine through [June thirtieth] May fifteenth,
21 two thousand [eight] ten, the board shall expedite the awarding of such
22 benefits and shall defer the review of compliance with such criteria
23 until after the applicant has been awarded an energy cost savings bene-
24 fit. Such terms and conditions shall include reasonable provisions
25 providing for the partial or complete withdrawal of the energy cost
26 savings benefit in the event the recipient fails to maintain mutually
27 agreed upon commitments that may include, but are not limited to, levels
28 of employment, capital investment and power utilization. Recommendation
29 for approval of an energy cost savings benefit shall qualify an appli-
30 cant to receive an energy cost savings benefit from the power authority
31 of the state of New York pursuant to the terms and conditions of the
32 recommendation.
33 § 2. The opening paragraph of paragraph 5 of subdivision (a) of
34 section 189 of the economic development law, as amended by section 2 of
35 part Y of chapter 59 of the laws of 2008, is amended to read as follows:
36 "Power for jobs electricity savings reimbursements" shall mean
37 payments made by the power authority of the state of New York as recom-
38 mended by the board to recipients of allocations of power under phases
39 four and five of the power for jobs program for a period of time until
40 November thirtieth, two thousand four, subsequent to the expiration of
41 their phase four or five power for jobs contract provided however that
42 any power for jobs recipient may choose to receive an electricity
43 savings reimbursement as a substitute for a contract extension for the
44 period from the date the recipient's contract expires through [June
45 thirtieth] May fifteenth, two thousand [nine] ten. The "basic
46 reimbursement" is an amount that when credited against the recipient's
47 actual "unit cost of electricity" during a quarter (meaning the cost for
48 commodity and delivery per kilowatt-hour for the quantity of electricity
49 purchased and delivered under the power for jobs program during a simi-
50 lar period in the final year of the recipient's contract), results in an
51 effective unit cost of electricity during the quarter equal to the aver-
52 age unit cost of electricity such recipient paid during the final year
53 of the contract for power allocated under phase four or five of the
54 power for jobs program.
S. 1 3
1 § 3. Subdivisions (f) and (l) of section 189 of the economic develop-
2 ment law, as amended by section 3 of part Y of chapter 59 of the laws of
3 2008, are amended to read as follows:
4 (f) Eligibility. The board shall recommend applications for allo-
5 cations of power under the power for jobs program to or for the use of
6 businesses which normally utilize a minimum peak electric demand in
7 excess of four hundred kilowatts; provided, however, that up to one
8 hundred megawatts of power available for allocation during the initial
9 three phases of the power for jobs program may be recommended for allo-
10 cations to not-for-profit corporations and to small businesses; and,
11 provided, further that up to seventy-five megawatts of power available
12 for allocation during the fourth phase of the program may be recommended
13 for allocations to not-for-profit corporations and to small businesses.
14 The board may require small businesses that normally utilize a minimum
15 peak electric demand of less than one hundred kilowatts to aggregate
16 their electric demand in amounts of no less than one hundred kilowatts,
17 for the purposes of applying to the board for an allocation of power.
18 The board shall recommend allocations of the additional three hundred
19 megawatts available during the fourth phase of the program to any such
20 eligible applicant, including any recipient of power allocated during
21 the first phase of the program. The board shall recommend allocations of
22 the additional one hundred eighty-three megawatts available during the
23 fifth phase of the program to any eligible applicant, including any
24 recipient of power allocated during the second and third phases of the
25 program; provided, however, that the term of contracts for allocations
26 under the fifth phase of the program shall in no case extend beyond
27 [June thirtieth] May fifteenth, two thousand [nine] ten. Notwithstand-
28 ing any provision of law to the contrary, and, in particular, the
29 provisions of this chapter concerning the terms of contracts for allo-
30 cations under the power for jobs program, the terms of any contract with
31 a recipient of power allocated under phase two of the power for jobs
32 program that has expired or will expire on or before the thirty-first
33 day of August, two thousand two, may be extended by the power authority
34 of the state of New York for an additional period of three months effec-
35 tive on the date of such expiration, pending the filing and approval of
36 an application by such recipient for an allocation under the fifth phase
37 of the program. The term of any new contract with such recipient under
38 the fifth phase of the program shall be deemed to include any three
39 month contract extension made pursuant to this subdivision and the
40 termination date of any such new contract under phase five shall be no
41 later than if such new contract had commenced upon the expiration of the
42 recipient's original phase two contract. The terms of any contract with
43 a recipient of power allocated under phase four and/or phase five of the
44 power for jobs program that has expired or will expire on or before the
45 thirty-first day of December, two thousand five, may be extended by the
46 power authority of the state of New York from a date beginning no earli-
47 er than the first day of December, two thousand four and extending
48 through [June thirtieth] May fifteenth, two thousand [nine] ten.
49 (l) The board shall solicit and review applications for the power for
50 jobs electricity savings reimbursements and contract extensions from
51 recipients of power for jobs allocations under phases four and five of
52 the program for the award of such reimbursements and/or contract exten-
53 sions. The board may prescribe a simplified form and content for an
54 application for such reimbursements or extensions. An applicant shall be
55 eligible for such reimbursements and/or extensions only if it is in
56 compliance with and agrees to continue to meet the job retention and
S. 1 4
1 creation commitments set forth in its prior power for jobs contract, or
2 such other commitments as the board deems reasonable; provided, however,
3 that for the power for jobs electricity savings reimbursements and
4 contract extensions granted on or after June thirtieth, two thousand
5 [seven] nine through [June thirtieth] May fifteenth, two thousand
6 [eight] ten, the board shall expedite the awarding of such reimburse-
7 ments and/or extensions and shall defer the review of compliance with
8 such commitments until after the applicant has been awarded a power for
9 jobs electricity savings reimbursement and/or contract extension. The
10 board shall review such applications and make recommendations for the
11 award: 1. of such reimbursements through the power authority of the
12 state of New York for a period of time up to November thirtieth, two
13 thousand four, and 2. of such contract extensions or reimbursements as
14 applied for by the recipient for a period of time beginning December
15 first, two thousand four and ending [June thirtieth] May fifteenth, two
16 thousand [nine] ten. At no time shall a recipient receive both a
17 reimbursement and extension after December first, two thousand four. The
18 power authority of the state of New York shall receive notification from
19 the board regarding the award of power for jobs electricity savings
20 reimbursements and/or contract extensions.
21 § 4. Section 9 of chapter 316 of the laws of 1997 amending the public
22 authorities law and other laws relating to the provision of low cost
23 power to foster statewide economic development, as amended by section 4
24 of part Y of chapter 59 of the laws of 2008, is amended to read as
25 follows:
26 § 9. This act shall take effect immediately and shall expire and be
27 deemed repealed [June 30] May 15, [2009] 2010.
28 § 5. Subdivision 9 of section 186-a of the tax law, as amended by
29 section 5 of part Y of chapter 59 of the laws of 2008, is amended to
30 read as follows:
31 9. Notwithstanding any other provision of this chapter or any other
32 law to the contrary, for taxable periods nineteen hundred ninety-seven
33 through and including two thousand [nine] ten, any utility which deliv-
34 ers power under the power for jobs program, as established by section
35 one hundred eighty-nine of the economic development law, shall be
36 allowed a credit, subject to the limitations thereon contained in this
37 subdivision, against the tax imposed under this section equal to net
38 lost revenues from the delivery of power under such power for jobs
39 program. Net lost revenues means the "net receipts" less "net utility
40 revenue" from such delivery of power. For purposes of this subdivision,
41 "net receipts" shall mean the amount that the utility would have other-
42 wise received from customers receiving power pursuant to allocations by
43 the New York state economic development power allocation board in
44 accordance with section one hundred eighty-nine of the economic develop-
45 ment law, or from customers whose allocation has been transferred to an
46 energy service company, or from energy service companies to which such
47 allocation has been transferred, pursuant to its tariff supervised by
48 the public service commission for substantially comparable service
49 otherwise applicable to such customers or energy service companies in
50 the absence of such designation, less the utility's annual average
51 incremental short-term variable and capacity costs of providing such
52 power in the absence of such purchase. For the purposes of this subdivi-
53 sion, "net utility revenue" shall mean the revenues the utility actually
54 receives in accordance with such section one hundred eighty-nine from
55 such customers so designated by the New York state economic development
56 power allocation board or from customers whose allocation has been
S. 1 5
1 transferred to an energy service company, or from the energy service
2 companies to which a power for jobs allocation has been transferred,
3 less the utility's cost of such power under such program. Provided,
4 however, that any credit under this section shall be used only with
5 respect to the same taxable year during which such credit arose and
6 shall not be capable of being carried forward or backward to any other
7 taxable period. Nor shall any credit be allowed to any utility for the
8 total amount of power, expressed in kilowatt hours, purchased by the
9 customers of such utility under such program during the taxable period
10 that exceeds the prorated "baseline energy use" by all customers of that
11 utility purchasing power under such program during the taxable period.
12 "Baseline energy use" with respect to each customer shall mean the larg-
13 est amount of kilowatt hours of energy used by such customer during any
14 twelve consecutive month period occurring during the preceding thirty
15 months immediately preceding the New York state economic development
16 power allocation board's recommendation of such customer's application,
17 prorated to reflect the length of time of the customer's participation
18 in such program during the taxable period. Provided further, however,
19 that in accordance with subdivision (k) of section one hundred eighty-
20 nine of the economic development law no tax credit shall be available
21 for any revenue losses when a utility has declined to purchase power
22 allocated for sale under such program. No electric corporation shall be
23 allowed the tax credit authorized by this subdivision until it shall
24 file a certificate from the department of public service for the period
25 covered by the return verifying that the calculation of such tax credit
26 complies with this subdivision and the department of public service has
27 approved such certificate and forwarded a copy of such approved certif-
28 icate to the commissioner or any amended certificate resulting from the
29 need for correction. The credit allowed by this subdivision shall not be
30 applicable in calculating any other tax imposed or authorized to be
31 imposed by this chapter or any other law, and the amount of the tax
32 surcharge imposed under section one hundred eighty-six-c of this article
33 shall be calculated and payable as if the credit provided for by this
34 subdivision were not allowed.
35 § 6. Section 11 of chapter 645 of the laws of 2006 amending the
36 economic development law and other laws relating to reauthorizing the
37 New York power authority to make contributions to the general fund, as
38 amended by section 6 of part Y of chapter 59 of the laws of 2008, is
39 amended to read as follows:
40 § 11. This act shall take effect immediately and shall be deemed to
41 have been in full force and effect on and after April 1, 2006; provided,
42 however, that the amendments to section 183 of the economic development
43 law and subparagraph 2 of paragraph g of the ninth undesignated para-
44 graph of section 1005 of the public authorities law made by sections two
45 and six of this act shall not affect the expiration of such section and
46 subparagraph, respectively, and shall be deemed to expire therewith;
47 provided further, however, that the amendments to section 189 of the
48 economic development law and subdivision 9 of section 186-a of the tax
49 law made by sections three, four, five and ten of this act shall not
50 affect the repeal of such section and subdivision, respectively, and
51 shall be deemed to be repealed therewith; provided further, however,
52 that section seven of this act shall expire and be deemed repealed [June
53 30] May 15, [2009] 2010.
54 § 7. Subparagraph 2 of paragraph g of the ninth undesignated para-
55 graph of section 1005 of the public authorities law, as amended by
S. 1 6
1 section 7 of part Y of chapter 59 of the laws of 2008, is amended to
2 read as follows:
3 2. The authority, as deemed feasible and advisable by the trustees, is
4 authorized to make payments to recipients of the power for jobs elec-
5 tricity savings reimbursements and additional annual voluntary contrib-
6 utions into the state treasury to the credit of the general fund. The
7 authority shall make such contributions to the state treasury no later
8 than ninety days after the end of the calendar year in which a credit
9 under subdivision nine of section one hundred eighty-six-a of the tax
10 law is available: (a) for the additional three hundred megawatts of
11 power under the fourth phase of the program provided under chapter
12 sixty-three of the laws of two thousand and under the fifth phase for
13 the additional one hundred eighty-three megawatts provided under chapter
14 two hundred twenty-six of the laws of two thousand two; and (b) for any
15 extension of any contract for allocations under the fourth phase of the
16 program and under the fifth phase of the program. Payments for any elec-
17 tricity savings reimbursement under section one hundred eighty-nine of
18 the economic development law shall be made pursuant to such section.
19 Such annual contributions shall be equal to fifty percent of the total
20 amount of such credits available each year to all local distributors of
21 electricity. In addition, such authorization for contribution in state
22 fiscal year two thousand two--two thousand three shall be equal to the
23 total amount of credit available in two thousand one and two thousand
24 two; and such authorization for contribution in state fiscal year two
25 thousand three--two thousand four shall be equal to the total amount of
26 credit available in two thousand three; under subdivision nine of
27 section one hundred eighty-six-a of the tax law under the fourth phase
28 of the program for the additional three hundred megawatts provided under
29 chapter sixty-three of the laws of two thousand and under the fifth
30 phase for the additional one hundred eighty-three megawatts provided
31 under chapter two hundred twenty-six of the laws of two thousand two. In
32 state fiscal year two thousand four--two thousand five, such authorized
33 annual contribution shall be equal to one hundred percent of the total
34 amount of such credits available each year to all local distributors of
35 electricity. Such authorization for contribution in state fiscal years
36 two thousand four and two thousand five shall be equal to the total
37 amount of credit available in two thousand four and two thousand five;
38 under subdivision nine of section one hundred eighty-six-a of the tax
39 law under the fourth phase of the program for the additional three
40 hundred megawatts provided under chapter sixty-three of the laws of two
41 thousand and under the fifth phase for the additional one hundred eight-
42 y-three megawatts provided under chapter two hundred twenty-six of the
43 laws of two thousand two. In addition, such authorization for contrib-
44 ution for any extension of any contract for allocations under the fourth
45 phase of the program and under the fifth phase of the program in each
46 state fiscal year shall be equal to the total amount of credit or
47 reimbursement available in state fiscal year two thousand four--two
48 thousand five, state fiscal year two thousand five--two thousand six and
49 two thousand six--two thousand seven. Additionally, notwithstanding any
50 other section of law, the authority is authorized to make a contribution
51 in an amount related to total amounts of credit received under phases
52 one, two, three, four and five of the program. In no case shall the
53 contribution for state fiscal year two thousand five--two thousand six
54 be less than seventy-five million dollars. The contribution for state
55 fiscal year two thousand six--two thousand seven shall be one hundred
56 million dollars. The contribution for state fiscal year two thousand
S. 1 7
1 seven--two thousand eight shall be thirty million dollars. The contrib-
2 ution for state fiscal year two thousand eight--two thousand nine shall
3 be twenty-five million dollars. The contribution for state fiscal year
4 two thousand nine--two thousand ten shall be twelve million five hundred
5 thousand dollars. The department of public service shall estimate the
6 payment due by the end of the calendar year in which the credit is
7 available. In no case shall the amount of the total annual contributions
8 for the years during which delivery and sale of power associated with
9 all power for jobs phases and any extensions thereof takes place exceed
10 the aggregate total of four hundred [forty-nine] sixty-one million five
11 hundred thousand dollars.
12 § 8. Section 1005 of the public authorities law is amended by adding
13 a new subdivision 16 to read as follows:
14 16. a. To promote the conservation and efficient use of electricity,
15 the power authority of the state of New York shall undertake or cause to
16 be undertaken energy audits in connection with the economic development
17 power, expansion power, replacement power, preservation power, high load
18 factor power, municipal distribution agency power and the power for jobs
19 programs. Energy audits shall be conducted for a representative sample
20 of the recipients of such low-cost power programs. The audits shall
21 assess a recipient's electricity use to determine cost-effective meas-
22 ures that could be employed to reduce energy costs, energy use, or
23 improve the efficiency of buildings, building systems, equipment, proc-
24 esses or operations. The representative sample shall take into consider-
25 ation the program of enrollment, type of business, geography for state-
26 wide programs and allocation size. Recipients' energy audits performed
27 up to five years prior to the effective date of this subdivision may be
28 considered. Costs of the energy audits shall be paid by the power
29 authority of the state of New York as deemed feasible and advisable by
30 the board. For purposes of implementing this subdivision only, the power
31 authority or its agent is authorized to apply for funding from any
32 program that pays all or some of the costs of such audits, and the power
33 authority or its agent shall be entitled to receive such funding as if
34 the recipient of such low-cost power had applied for the funding direct-
35 ly.
36 b. The authority shall complete and submit a report on the energy
37 audit program to the governor, the speaker of the assembly, the tempo-
38 rary president of the senate, the minority leader of the senate, and the
39 minority leader of the assembly, the chair of the senate finance commit-
40 tee, the chair of the assembly ways and means committee, the chair of
41 the assembly energy committee and the chair of the senate energy and
42 telecommunications committee and the state comptroller by February twen-
43 ty-eighth, two thousand ten.
44 § 9. (a) The power authority of the state of New York, in consultation
45 with the department of economic development, shall complete and submit a
46 report on the power authority's low cost power programs. The report
47 shall examine the replacement, expansion, preservation power programs,
48 the industrial economic development power program, the power for jobs
49 programs, and the economic cost saving benefits power programs. Informa-
50 tion to be presented in the report shall reflect the state of the
51 programs as of June 30, 2009 and the year prior and shall include but
52 not be limited to:
53 i. a short history of the programs;
54 ii. a complete list of all recipients of these programs grouped by
55 program;
56 iii. the city or town and county of each recipient;
S. 1 8
1 iv. the allocation allotted to each recipient;
2 v. annualized retail value of each program;
3 vi. the original employment commitment from each recipient;
4 vii. the current employment level for each recipient;
5 viii. an assessment of the economic benefits to New York, which shall
6 include, but not be limited to: jobs created and retained, level of
7 capital investment, wage and benefit levels, and the effect of regional
8 economies; and shall include an assessment on the effect of these
9 programs considering the ongoing economic conditions in the state and
10 any methodology used in analyses in this report; and
11 ix. the energy procurement practices, including all supply side and
12 demand side activities, the authority uses to meet the capacity and
13 needs of its customers.
14 The report shall also include a brief description of the preference
15 power program including the total power available to the program as
16 measured in megawatts, the total power used by the program as measured
17 in megawatt hours for the program as a whole and by utility service
18 area, an estimated annualized retail value for the program and the
19 metric for calculating that value. The report shall be submitted by
20 December 30, 2009 to the governor, the speaker of the assembly, the
21 temporary president of the senate, the minority leader of the senate,
22 the minority leader of the assembly, the chair of the senate finance
23 committee, the chair of the assembly ways and means committee, the chair
24 of the assembly energy committee, the chair of the senate energy and
25 telecommunications committee, and the state comptroller and shall be
26 made available on the authority's website.
27 (b) The power authority of the state of New York shall provide copies
28 of all reports required by subdivision 14 of section 1005 of the public
29 authorities law, for the year 2006, 2007, 2008 and 2009 to the governor,
30 the speaker of the assembly, the temporary president of the senate, the
31 minority leader of the senate, and the minority leader of the assembly,
32 the chair of the senate finance committee, the chair of the assembly
33 ways and means committee, the chair of the assembly energy committee and
34 the chair of the senate energy and telecommunications committee, and the
35 state comptroller by December 30, 2009.
36 § 10. Severability clause. If any clause, sentence, paragraph, subdi-
37 vision, section or part of this act shall be adjudged by any court of
38 competent jurisdiction to be invalid, such judgment shall not affect,
39 impair, or invalidate the remainder thereof, but shall be confined in
40 its operation to the clause, sentence, paragraph, subdivision, section
41 or part thereof directly involved in the controversy in which such judg-
42 ment shall have been rendered. It is hereby declared to be the intent of
43 the legislature that this act would have been enacted even if such
44 invalid provisions had not been included therewith.
45 § 11. This act shall take effect immediately; provided that the amend-
46 ments to sections 183 and 189 of the economic development law, subdivi-
47 sion 9 of section 186-a of the tax law and subparagraph 2 of paragraph g
48 of the ninth undesignated paragraph of section 1005 of the public
49 authorities law, made by sections one, two, three, five and seven of
50 this act, shall not affect the expiration of such provisions and shall
51 be deemed repealed therewith.
