Add S188-a, amd SS183 & 189, Ec Dev L; amd S1005, rpld sub 16, Pub Auth L; amd S9, Chap 316 of 1997; amd S11,
Chap 645 of 2006; amd S186-a, Tax L
Creates the Energize New York power program; extends the expiration of the power for jobs program and the energy cost savings benefit program; authorizes certain contributions to the state general fund.
STATE OF NEW YORK
________________________________________________________________________
S. 7 A. 7
Second Extraordinary Session
SENATE - ASSEMBLY
July 30, 2010
___________
IN SENATE -- 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
IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of the
Governor) -- read once and referred to the Committee on Energy
AN ACT to amend the economic development law and the public authorities
law, in relation to the creation of the energize New York power
program; and to amend the economic development law, the public author-
ities law, the tax 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 development, 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 expi-
ration of the power for jobs program and the energy cost savings bene-
fit program; and to repeal subdivision 16 of section 1005 of the
public authorities law relating to energy audits
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "energize New York power program act".
3 § 2. The economic development law is amended by adding a new section
4 188-a to read as follows:
5 § 188-a. Energize New York power program. (a) Definitions. For the
6 purposes of this section, the following terms shall have the following
7 meanings:
8 (1) "Applicable criteria" shall mean the criteria specified in subdi-
9 vision (c) of this section.
10 (2). "Authority" shall mean the power authority of the state of New
11 York.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12304-01-0
S. 7 2 A. 7
1 (3) "Energize New York power allocation" or "allocation" shall mean an
2 allocation of energize New York power by the power authority of the
3 state of New York pursuant to section one thousand five of the public
4 authorities law to an eligible applicant recommended by the New York
5 state economic development power allocation board in accordance with
6 this section.
7 (4) "Eligible applicant" shall mean an eligible business, eligible
8 small business, or eligible not-for-profit corporation as defined in
9 this section, provided however, that an eligible applicant shall not
10 include retail businesses as defined by the board, including, without
11 limitation, sports venues, gaming or entertainment-related establish-
12 ments or places of overnight accommodation.
13 (5) "Eligible business" shall mean a business other than a not-for-
14 profit corporation which normally utilizes a minimum peak electric
15 demand in excess of four hundred kilowatts.
16 (6) "Eligible not-for-profit corporation" shall mean a corporation
17 defined in subdivision five of paragraph (a) of section one hundred two
18 of the not-for-profit corporation law.
19 (7) "Eligible small business" shall mean a business other than a not-
20 for-profit corporation which normally utilizes a minimum peak electric
21 demand equal to or less than four hundred kilowatts.
22 (8) "Energize New York power" shall mean and consist of equal amounts
23 of (i) up to four hundred fifty-five megawatts of firm hydroelectric
24 power from the Niagara and Saint Lawrence hydroelectric projects to be
25 withdrawn from utility corporations that, prior to the effective date of
26 this section, purchased such power for the benefit of their domestic and
27 rural consumers ("energize New York hydropower"), and (ii) power
28 procured by the authority through a competitive procurement process,
29 authority sources (other than the Niagara and Saint Lawrence projects)
30 or through an alternate method ("energize New York market power").
31 (b) Applications for energize New York power allocations. (1) The
32 board may solicit applications for energize New York power allocations
33 under the program created by this section by public notice beginning no
34 later than January thirty-first, two thousand eleven. Such notice may
35 include newspaper advertisements, press releases, website postings,
36 paper or electronic mailing, and/or such other form of notice as the
37 board finds appropriate in consultation with the authority.
38 (2) Applications for energize New York power allocations shall be in
39 the form and contain such information, exhibits and supporting data as
40 the board prescribes in consultation with the authority. A copy of each
41 application received shall be made available for review by each board
42 member, and a copy shall be provided to the authority.
43 (3) An applicant who is also a recipient of benefits under another
44 power program of the authority shall be eligible to apply for an allo-
45 cation under the energize New York power program only if it is in
46 substantial compliance with its contractual commitments made in
47 connection with such other program, provided however that an applicant
48 shall not receive an energize New York power allocation and any other
49 authority power program benefits with respect to the same quantity of
50 electricity consumed at a facility.
51 (4) Subject to confidentiality requirements, upon receipt of each
52 application from the board, the authority shall promptly notify by elec-
53 tronic means, including website postings and such other methods the
54 board deems appropriate in consultation with the authority, the gover-
55 nor, the speaker of the assembly, the minority leader of the assembly,
56 the temporary president of the senate, the minority leader of the
S. 7 3 A. 7
1 senate, and each member of the state legislature in whose district any
2 portion of the facility for which an allocation is requested is located.
3 Such notice shall provide the name and a description of the applicant,
4 and the address of the facility for which the allocation is requested.
5 The authority shall also develop a listing which contains the name and a
6 description of each applicant, the energize New York power program allo-
7 cation sought by each applicant, and the address of the facility for
8 which the applicant requests the allocation, and shall make the listing
9 available for public review on the authority's website.
10 (c) Review, applicable criteria and recommendations. (1) The board
11 shall review applications submitted under the energize New York power
12 program. The board shall make an initial determination of whether the
13 applicant is an eligible applicant. In the case of an eligible appli-
14 cant, the board may recommend to the authority that an allocation of
15 energize New York power be awarded to an applicant for a facility
16 located in the state of New York based on consideration of the following
17 criteria which shall be considered in the aggregate and no one of which
18 shall be presumptively determinative:
19 (i) the significance of the cost of electricity to the applicant's
20 overall cost of doing business, and the impact that an energize New York
21 power allocation will have on the applicant's operating costs;
22 (ii) the extent to which an energize New York power allocation will
23 result in new capital investment in the state by the applicant;
24 (iii) the extent to which an energize New York power allocation is
25 consistent with state, regional and local economic development strate-
26 gies and priorities;
27 (iv) the type and cost of buildings, equipment and facilities to be
28 constructed, enlarged or installed if the applicant were to receive an
29 allocation;
30 (v) the applicant's payroll, salaries, benefits and number of jobs at
31 the facility for which an energize New York power allocation is
32 requested;
33 (vi) the number of jobs that will be created or retained within the
34 state in relation to the requested energize New York power allocation,
35 and the extent to which the applicant will agree to commit to creating
36 or retaining such jobs as a condition to receiving an energize New York
37 power allocation;
38 (vii) whether the applicant, due to the cost of electricity, is at
39 risk of closing or curtailing facilities or operations in the state,
40 relocating facilities or operations out of the state, or losing a
41 significant number of jobs in the state, in the absence of an energize
42 New York power allocation;
43 (viii) the significance of the applicant's facility that would receive
44 the energize New York power allocation to the economy of the area in
45 which such facility is located;
46 (ix) the extent to which the applicant has invested in energy effi-
47 ciency measures, will agree to participate in or perform energy audits
48 of its facilities, will agree to participate in energy efficiency
49 programs of the authority, or will commit to implement or otherwise make
50 tangible investments in energy efficiency measures as a condition to
51 receiving an energize New York power allocation;
52 (x) the extent to which the applicant's operations are consistent with
53 the policies and goals of the state energy plan;
54 (xi) whether the applicant receives benefits under any other power-re-
55 lated programs of the authority;
S. 7 4 A. 7
1 (xii) the extent to which an energize New York power allocation will
2 result in an advantage for an applicant in relation to the applicant's
3 competitors within the state; and
4 (xiii) in addition to the foregoing criteria, in the case of a not-
5 for-profit corporation, whether the applicant provides critical services
6 or substantial benefits to the local community in which the facility for
7 which the allocation is requested is located.
8 (2) A recommendation by the board that the authority provide an ener-
9 gize New York power allocation to an eligible applicant shall include,
10 but need not be limited to:
11 (i) the amount of the energize New York power allocation the board has
12 determined should be awarded to such eligible applicant, provided howev-
13 er, that the board may recommend an energize New York power allocation
14 in an amount that is less than the amount requested by such applicant;
15 (ii) an effective initial term of the allocation and contract between
16 the eligible applicant and the authority which shall not exceed seven
17 years, provided however that the term of any such allocation and
18 contract shall not become effective before July first, two thousand
19 eleven; and
20 (iii) provisions for effective periodic audits of eligible applicants
21 awarded an energize New York power allocation for the purpose of deter-
22 mining contract and program compliance, and for the partial or complete
23 withdrawal of an energize New York power allocation if the eligible
24 applicant fails to maintain mutually agreed upon commitments, relating
25 to, among other things, employment levels, power utilization, capital
26 investments, and/or energy efficiency measures.
27 (3) The board's recommendation shall require that if the actual
28 metered load at the facility where the allocation is utilized is less
29 than the allocation, such allocation will be reduced accordingly,
30 provided that, under their contracts with the authority, eligible appli-
31 cants shall be afforded a reasonable period within which to fully
32 utilize the allocations, taking into account construction schedules and
33 economic conditions. The authority shall reallocate any withdrawn or
34 relinquished power for the energize New York power program consistent
35 with paragraph four of this subdivision.
36 (4) The board may base its recommendation on which eligible applicants
37 it determines best meet the applicable criteria; provided, however, that
38 the board shall dedicate energize New York power as follows: (i) at
39 least three hundred twenty megawatts for use at facilities located with-
40 in the service territories of the utility corporations that, prior to
41 the effective date of this section, purchased Niagara and Saint Lawrence
42 hydroelectric power for the benefit of their domestic and rural consum-
43 ers; (ii) at least two hundred megawatts for the purposes of attracting
44 new business to the state and encouraging the creation of new business
45 within the state, for eligible applicants that will commit to make new
46 capital investments or create new jobs within the state; and (iii) an
47 amount not to exceed one hundred megawatts for eligible small businesses
48 and eligible not-for-profit corporations.
49 (5) The board shall issue a written statement of its findings and
50 conclusions with respect to every application and the reasons for its
51 recommendation to the authority.
52 (6) A recommendation for an energize New York power allocation shall
53 qualify an applicant to enter into a contract with the authority pursu-
54 ant to the terms and conditions of the recommendation by the board and
55 on such other terms as the authority determines to be appropriate.
S. 7 5 A. 7
1 (7) The board shall not recommend a total of energize New York power
2 allocations in excess of nine hundred ten megawatts.
3 (d) The authority shall work cooperatively with the department of
4 public service to recommend to the public service commission reduced
5 rates or an equivalent mechanism for the delivery by utility corpo-
6 rations of energize New York power program allocations. Any such recom-
7 mendation for reduced delivery rates shall be at such level as to allow
8 the utility to (i) recover the incremental cost of providing delivery
9 service to such customers, and (ii) contribute to the common delivery
10 and related costs which otherwise would be borne by other customers.
11 (e) The authority shall, at a minimum, report quarterly to the board
12 on the availability of energize New York power for the subsequent
13 twelve-month period, the amount of such power allocated and other rele-
14 vant information.
15 (f) After an award of an energize New York power allocation, the board
16 shall accept requests from eligible applicants who are in substantial
17 compliance with contractual commitments made in connection with the
18 energize New York power program for an extension of an existing allo-
19 cation (i) during the twenty-four month period immediately preceding the
20 expiration of the term of the allocation, or (ii) at such earlier time
21 with the consent of the authority in writing. Requests for extensions
22 shall be reviewed using the criteria set forth in paragraph one of
23 subdivision (c) of this section.
24 (g) Transfers of energize New York power. Notwithstanding any other
25 approval required by statute, regulation or contract, the transfer of an
26 energize New York power allocation to a different recipient, to a
27 different owner or operator of a facility, or to a different facility is
28 prohibited unless specifically approved by the board as consistent with
29 the criteria and requirements of this section. Any transfer that occurs
30 without the board's approval shall be invalid and such transfer may
31 subject the recipient to revocation or modification of its allocation
32 and contract.
33 (h) (1) The board, in consultation with the authority, shall submit to
34 the governor, temporary president of the senate, speaker of the assem-
35 bly, minority leader of the senate and minority leader of the assembly
36 an evaluation of the effectiveness of the energize New York power
37 program. Such evaluation shall focus on how the program has aided
38 recipients of power allocations, and may include recommendations for how
39 the program can be made more effective, and shall be based, in part, on
40 the relative costs of power for recipients in comparison to the cost of
41 power for non-recipients. Such evaluation shall be submitted by Decem-
42 ber thirty-first, two thousand fourteen and by December thirty-first
43 every five years thereafter.
44 (2) The board, with assistance from the authority, shall maintain the
45 necessary records and data required to perform such evaluation and
46 respond to requests for information pursuant to article six of the
47 public officers law.
48 § 3. Section 1005 of the public authorities law is amended by adding a
49 new subdivision 13-a to read as follows:
50 13-a. Energize New York power program. (a) Notwithstanding any other
51 provision of law to the contrary, but subject to the terms and condi-
52 tions of federal energy regulatory commission licenses, to allocate,
53 reallocate or extend, directly or by sale for resale, up to nine hundred
54 ten megawatts of energize New York power to eligible applicants located
55 within the state of New York upon the recommendation of the New York
S. 7 6 A. 7
1 state economic development power allocation board pursuant to section
2 one hundred eighty-eight-a of the economic development law.
3 (b) Energize New York power shall mean and consist of equal amounts of
4 (1) up to four hundred fifty-five megawatts of firm hydroelectric power
5 from the Niagara and Saint Lawrence hydroelectric projects to be with-
6 drawn, as of the earliest date such power may be withdrawn consistent
7 with contractual requirements, from utility corporations that, prior to
8 the effective date of this subdivision, purchased such power for the
9 benefit of their domestic and rural consumers ("energize New York hydro-
10 power"), and (2) power procured by the authority through a competitive
11 procurement process, authority sources (other than the Niagara and Saint
12 Lawrence projects) or through an alternate method ("energize New York
13 market power"). With respect to energize New York market power, the
14 authority may provide power through an alternate method if the cost is
15 lower than the cost of power obtained through a competitive procurement
16 process; provided, however, that if such lower cost power comes from
17 authority sources, the use of that power shall not reduce the availabil-
18 ity of, or cause an increase in the price of, power provided by the
19 authority for any other program authorized in this article or pursuant
20 to any other statute.
21 (c) Notwithstanding section one thousand nine of this title or any
22 other provision of law to the contrary, the authority is authorized,
23 beginning July first, two thousand eleven, to make available, contract
24 with and sell to such eligible applicants as are recommended by the
25 economic development power allocation board up to nine hundred ten mega-
26 watts of energize New York power for energize New York power allo-
27 cations. An energize New York power allocation shall consist of equal
28 parts of energize New York hydropower and energize New York market power
29 as such terms are defined in paragraph (b) of this subdivision;
30 provided, however, that prior to entering into a contract with an eligi-
31 ble applicant for the sale of energize New York power, and prior to the
32 provision of electric service relating to the energize New York power
33 allocation, the authority shall offer each eligible applicant the option
34 to decline to purchase the energize New York market power component of
35 such allocation. If an eligible applicant declines to purchase such
36 market power from the authority, the authority shall have no responsi-
37 bility for supplying such market power to the eligible applicant.
38 § 4. Section 1005 of the public authorities law is amended by adding a
39 new subdivision 13-b to read as follows:
40 13-b. Residential consumer discount programs. (a) Residential consum-
41 er electricity cost discount. Notwithstanding any provision of this
42 title or article six of the economic development law to the contrary,
43 the authority is authorized, as deemed feasible and advisable by the
44 trustees, to use revenues from the sale of hydroelectric power, and such
45 other funds of the authority as deemed feasible and advisable by the
46 trustees, to fund monthly payments to be made to such classes of elec-
47 tricity consumers, as enjoyed the benefits of authority hydroelectric
48 power withdrawn pursuant to subdivision thirteen-a of this section, for
49 the purpose of mitigating price impacts associated with the reallocation
50 of such power. Such monthly payments shall commence after such hydro-
51 electric power is withdrawn. The total annual amount of monthly
52 payments for the first twelve month period following withdrawal of such
53 hydroelectric power, shall be one hundred million dollars. The total
54 annual amount of monthly payments for the five subsequent twelve month
55 periods shall decline by fourteen million dollars from each prior year.
56 Thereafter, the total amount of monthly payments for each twelve month
S. 7 7 A. 7
1 period shall be thirty million dollars. The monthly payment to any one
2 consumer shall not exceed the total monthly electric utility cost
3 incurred by such consumer. The total amount of monthly payments shall
4 be apportioned by the authority among the utility corporations that,
5 prior to the effective date of this subdivision, purchased such hydro-
6 electric power for the benefit of their domestic and rural consumers
7 according to the relative amounts of such power purchased by such compa-
8 nies. Monthly payments shall be credited to the electricity bills of
9 such corporations' domestic and rural consumers in a manner to be deter-
10 mined by the public service commission of the state of New York.
11 (b) Agricultural consumer electricity cost discount. (1) Beginning
12 with the second twelve month period after such hydroelectric power is
13 withdrawn, up to eight million dollars of the residential consumer elec-
14 tricity cost discount established by paragraph (a) of this subdivision
15 shall be dedicated for monthly payments to agricultural producers who
16 receive electric service at the residential rate. The combined monthly
17 payment, under this paragraph and paragraph (a) of this subdivision, to
18 any one consumer shall not exceed the total monthly electric utility
19 cost incurred by such consumer. The total amount of monthly payments
20 shall be apportioned by the authority among the utility corporations in
21 the same manner as they are apportioned in paragraph (a) of this subdi-
22 vision. Monthly payments shall be credited to the electricity bills of
23 such corporations' agricultural consumers in a manner to be determined
24 by the public service commission of the state of New York.
25 (2) The authority shall work cooperatively with the department of
26 public service to evaluate the agricultural consumer electricity cost
27 discount, which shall include an assessment of the benefits to recipi-
28 ents compared to the benefits the recipients received from the authori-
29 ty's hydroelectric power, withdrawn pursuant to subdivision thirteen-a
30 of this section, during the twelve month period ending December thirty-
31 first, two thousand nine, and compared to other agricultural consumers
32 that did not choose to receive the discount.
33 § 5. Section 1005 of the public authorities law is amended by adding a
34 new subdivision 18 to read as follows:
35 18. For the purpose of furnishing the state with systematic informa-
36 tion regarding the status and the activities of the authority, the
37 authority shall submit to the governor, the temporary president of the
38 senate, speaker of the assembly, the minority leader of the senate and
39 the minority leader of the assembly, within ninety days after the end of
40 its fiscal year, a complete and detailed annual report on each economic
41 development power program it administers. Such annual report shall
42 include, but not be limited to, the following information:
43 a. the number of recipients of economic power program benefits, the
44 economic region in which each recipient is located, the type and amount
45 of assistance provided, megawatts of electricity awarded, length of
46 current contract, current contract compliance status, last audit, number
47 of jobs retained and/or added in the fiscal year, approximate energy
48 efficiency savings and amount of power reallocated from previous years
49 due to forfeited benefits; and
50 b. cost to the authority to provide economic development power
51 programs during the previous fiscal year.
52 § 6. Transitional electricity discount. Notwithstanding any provision
53 of title 1 of article 5 of the public authorities law or article 6 of
54 the economic development law to the contrary, with respect to applicants
55 who are in substantial compliance with all contractual commitments and
56 receiving benefits under the power for jobs, energy cost savings bene-
S. 7 8 A. 7
1 fit, economic development, high load factor or municipal distribution
2 agency programs, but would otherwise not receive a recommendation from
3 the New York state economic development power allocation board for an
4 energize New York power allocation pursuant to section 188-a of the
5 economic development law, such board shall recommend that the power
6 authority of the state of New York provide for a transitional electric-
7 ity discount to such applicants. The power authority of the state of New
8 York is authorized, as deemed feasible and advisable by the trustees, to
9 provide such transitional electricity discounts as recommended by the
10 New York State economic development power allocation board. The power
11 authority of the state of New York shall identify and advise such board
12 whether sufficient funds are available for the funding of such transi-
13 tional electricity discounts through June 30, 2015. The amount of the
14 transitional electricity discount for the period July 1, 2011 through
15 June 30, 2013 shall be equivalent to 66 percent of the unit (per kilo-
16 watt-hour) value of the savings received by the applicant under the
17 power for jobs or energy cost savings benefit programs during the 12
18 months ending on May 15, 2010. The amount of the transitional electric-
19 ity discount for the period July 1, 2013 through June 30, 2015 shall be
20 equivalent to 33 percent of the unit (per kilowatt-hour) value of the
21 savings received by the applicant under the power for jobs or energy
22 cost savings benefit programs during the 12 months ending on May 15,
23 2010.
24 § 7. Section 9 of chapter 316 of the laws of 1997 amending the public
25 authorities law and other laws relating to the provision of low cost
26 power to foster statewide economic development, as amended by chapter 88
27 of the laws of 2010, is amended to read as follows:
28 § 9. This act shall take effect immediately and shall expire and be
29 deemed repealed June [2, 2010] 30, 2011.
30 § 8. Section 11 of chapter 645 of the laws of 2006 amending the
31 economic development law and other laws relating to reauthorizing the
32 New York power authority to make contributions to the general fund, as
33 amended by chapter 88 of the laws of 2010, is amended to read as
34 follows:
35 § 11. This act shall take effect immediately and shall be deemed to
36 have been in full force and effect on and after April 1, 2006; provided,
37 however, that the amendments to section 183 of the economic development
38 law and subparagraph 2 of paragraph g of the ninth undesignated para-
39 graph of section 1005 of the public authorities law made by sections two
40 and six of this act shall not affect the expiration of such section and
41 subparagraph, respectively, and shall be deemed to expire therewith;
42 provided further, however, that the amendments to section 189 of the
43 economic development law and subdivision 9 of section 186-a of the tax
44 law made by sections three, four, five and ten of this act shall not
45 affect the repeal of such section and subdivision, respectively, and
46 shall be deemed to be repealed therewith; provided further, however,
47 that section seven of this act shall expire and be deemed repealed June
48 [2, 2010] 30, 2011.
49 § 9. Paragraphs 2 and 4 of subdivision (h) of section 183 of the
50 economic development law, as amended by chapter 88 of the laws of 2010,
51 are amended to read as follows:
52 2. During the period commencing on November first, two thousand five
53 and ending on June [second] thirtieth, two thousand [ten] eleven eligi-
54 ble businesses shall only include customers served under the power
55 authority of the state of New York's high load factor, economic develop-
56 ment power and other business customers served by political subdivisions
S. 7 9 A. 7
1 of the state authorized by law to engage in the distribution of electric
2 power that were authorized to be served by the authority from the
3 authority's former James A. Fitzpatrick nuclear power plant as of the
4 effective date of this subdivision whose power prices may be subject to
5 increase before June [second] thirtieth, two thousand [ten] eleven.
6 Provided, however, that the total amount of megawatts of replacement and
7 preservation power which, due to the extension of the energy cost
8 savings benefits, are not relinquished by or withdrawn from a recipient
9 shall be deemed to be relinquished or withdrawn for purposes of offering
10 such megawatts by the authority for reallocation pursuant to subdivision
11 thirteen of section one thousand five of the public authorities law.
12 Provided, further, that for any such reallocation, the authority shall
13 maintain the same energy cost savings benefit level for all eligible
14 businesses using any available authority resources as deemed feasible
15 and advisable by the trustees pursuant to section seven of part U of
16 chapter fifty-nine of the laws of two thousand six.
17 4. Applications for an energy cost savings benefit shall be in the
18 form and contain such information, exhibits and supporting data as the
19 board may prescribe. The board shall review the applications received
20 and shall determine the applications which best meet the criteria estab-
21 lished for the benefits pursuant to this subdivision and it shall recom-
22 mend such applications to the power authority of the state of New York
23 with such terms and conditions as it deems appropriate; provided, howev-
24 er, that for energy cost savings benefits granted on or after [June
25 thirtieth] May fifteenth, two thousand [nine] ten through June [second]
26 thirtieth, two thousand [ten] eleven, the board shall expedite the
27 awarding of such benefits and shall defer the review of compliance with
28 such criteria until after the applicant has been awarded an energy cost
29 savings benefit. Such terms and conditions shall include reasonable
30 provisions providing for the partial or complete withdrawal of the ener-
31 gy cost savings benefit in the event the recipient fails to maintain
32 mutually agreed upon commitments that may include, but are not limited
33 to, levels of employment, capital investment and power utilization.
34 Recommendation for approval of an energy cost savings benefit shall
35 qualify an applicant to receive an energy cost savings benefit from the
36 power authority of the state of New York pursuant to the terms and
37 conditions of the recommendation.
38 § 10. The opening paragraph of paragraph 5 of subdivision (a) of
39 section 189 of the economic development law, as amended by chapter 88 of
40 the laws of 2010, is amended to read as follows:
41 "Power for jobs electricity savings reimbursements" shall mean
42 payments made by the power authority of the state of New York as recom-
43 mended by the board to recipients of allocations of power under phases
44 four and five of the power for jobs program for a period of time until
45 November thirtieth, two thousand four, subsequent to the expiration of
46 their phase four or five power for jobs contract provided however that
47 any power for jobs recipient may choose to receive an electricity
48 savings reimbursement as a substitute for a contract extension for the
49 period from the date the recipient's contract expires through June
50 [second] thirtieth, two thousand [ten] eleven. The "basic reimbursement"
51 is an amount that when credited against the recipient's actual "unit
52 cost of electricity" during a quarter (meaning the cost for commodity
53 and delivery per kilowatt-hour for the quantity of electricity purchased
54 and delivered under the power for jobs program during a similar period
55 in the final year of the recipient's contract), results in an effective
56 unit cost of electricity during the quarter equal to the average unit
S. 7 10 A. 7
1 cost of electricity such recipient paid during the final year of the
2 contract for power allocated under phase four or five of the power for
3 jobs program, provided however that notwithstanding the foregoing, for
4 the period May sixteenth, two thousand ten through June thirtieth, two
5 thousand eleven, the basic reimbursement shall be an amount such that
6 the recipient receives unit (per kilowatt-hour) electricity savings
7 equivalent to the average unit electricity savings received during the
8 twelve months ending on May fifteenth, two thousand ten.
9 § 11. Subdivisions (f) and (l) of section 189 of the economic develop-
10 ment law, as amended by chapter 88 of the laws of 2010, are amended to
11 read as follows:
12 (f) Eligibility. The board shall recommend applications for allo-
13 cations of power under the power for jobs program to or for the use of
14 businesses which normally utilize a minimum peak electric demand in
15 excess of four hundred kilowatts; provided, however, that up to one
16 hundred megawatts of power available for allocation during the initial
17 three phases of the power for jobs program may be recommended for allo-
18 cations to not-for-profit corporations and to small businesses; and,
19 provided, further that up to seventy-five megawatts of power available
20 for allocation during the fourth phase of the program may be recommended
21 for allocations to not-for-profit corporations and to small businesses.
22 The board may require small businesses that normally utilize a minimum
23 peak electric demand of less than one hundred kilowatts to aggregate
24 their electric demand in amounts of no less than one hundred kilowatts,
25 for the purposes of applying to the board for an allocation of power.
26 The board shall recommend allocations of the additional three hundred
27 megawatts available during the fourth phase of the program to any such
28 eligible applicant, including any recipient of power allocated during
29 the first phase of the program. The board shall recommend allocations of
30 the additional one hundred eighty-three megawatts available during the
31 fifth phase of the program to any eligible applicant, including any
32 recipient of power allocated during the second and third phases of the
33 program; provided, however, that the term of contracts for allocations
34 under the fifth phase of the program shall in no case extend beyond June
35 [second] thirtieth, two thousand [ten] eleven. Notwithstanding any
36 provision of law to the contrary, and, in particular, the provisions of
37 this chapter concerning the terms of contracts for allocations under the
38 power for jobs program, the terms of any contract with a recipient of
39 power allocated under phase two of the power for jobs program that has
40 expired or will expire on or before the thirty-first day of August, two
41 thousand two, may be extended by the power authority of the state of New
42 York for an additional period of three months effective on the date of
43 such expiration, pending the filing and approval of an application by
44 such recipient for an allocation under the fifth phase of the program.
45 The term of any new contract with such recipient under the fifth phase
46 of the program shall be deemed to include any three month contract
47 extension made pursuant to this subdivision and the termination date of
48 any such new contract under phase five shall be no later than if such
49 new contract had commenced upon the expiration of the recipient's
50 original phase two contract. The terms of any contract with a recipient
51 of power allocated under phase four and/or phase five of the power for
52 jobs program that has expired or will expire on or before the thirty-
53 first day of December, two thousand five, may be extended by the power
54 authority of the state of New York from a date beginning no earlier than
55 the first day of December, two thousand four and extending through June
56 [second] thirtieth, two thousand [ten] eleven.
S. 7 11 A. 7
1 (l) The board shall solicit and review applications for the power for
2 jobs electricity savings reimbursements and contract extensions from
3 recipients of power for jobs allocations under phases four and five of
4 the program for the award of such reimbursements and/or contract exten-
5 sions. The board may prescribe a simplified form and content for an
6 application for such reimbursements or extensions. An applicant shall be
7 eligible for such reimbursements and/or extensions only if it is in
8 compliance with and agrees to continue to meet the job retention and
9 creation commitments set forth in its prior power for jobs contract, or
10 such other commitments as the board deems reasonable; provided, however,
11 that for the power for jobs electricity savings reimbursements and
12 contract extensions granted on or after June thirtieth, two thousand
13 nine through June [second] thirtieth, two thousand [ten] eleven, the
14 board shall expedite the awarding of such reimbursements and/or exten-
15 sions and shall defer the review of compliance with such commitments
16 until after the applicant has been awarded a power for jobs electricity
17 savings reimbursement and/or contract extension. The board shall review
18 such applications and make recommendations for the award: 1. of such
19 reimbursements through the power authority of the state of New York for
20 a period of time up to November thirtieth, two thousand four, and 2. of
21 such contract extensions or reimbursements as applied for by the recipi-
22 ent for a period of time beginning December first, two thousand four and
23 ending June [second] thirtieth, two thousand [ten] eleven. At no time
24 shall a recipient receive both a reimbursement and extension after
25 December first, two thousand four. The power authority of the state of
26 New York shall receive notification from the board regarding the award
27 of power for jobs electricity savings reimbursements and/or contract
28 extensions.
29 § 12. Subdivision 9 of section 186-a of the tax law, as amended by
30 chapter 217 of the laws of 2009, is amended to 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 [ten] eleven, any utility which
34 delivers power under the power for jobs program, as established by
35 section one hundred eighty-nine of the economic development law, shall
36 be allowed a credit, subject to the limitations thereon contained in
37 this subdivision, against the tax imposed under this section equal to
38 net 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. 7 12 A. 7
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 § 13. Subparagraph 2 of paragraph g of the ninth undesignated para-
36 graph of section 1005 of the public authorities law, as amended by chap-
37 ter 217 of the laws of 2009, is amended to read as follows:
38 2. The authority, as deemed feasible and advisable by the trustees, is
39 authorized to make payments to recipients of the power for jobs elec-
40 tricity savings reimbursements and additional annual voluntary contrib-
41 utions into the state treasury to the credit of the general fund. The
42 authority shall make such contributions to the state treasury no later
43 than ninety days after the end of the calendar year in which a credit
44 under subdivision nine of section one hundred eighty-six-a of the tax
45 law is available: (a) for the additional three hundred megawatts of
46 power under the fourth phase of the program provided under chapter
47 sixty-three of the laws of two thousand and under the fifth phase for
48 the additional one hundred eighty-three megawatts provided under chapter
49 two hundred twenty-six of the laws of two thousand two; and (b) for any
50 extension of any contract for allocations under the fourth phase of the
51 program and under the fifth phase of the program. Payments for any elec-
52 tricity savings reimbursement under section one hundred eighty-nine of
53 the economic development law shall be made pursuant to such section.
54 Such annual contributions shall be equal to fifty percent of the total
55 amount of such credits available each year to all local distributors of
56 electricity. In addition, such authorization for contribution in state
S. 7 13 A. 7
1 fiscal year two thousand two--two thousand three shall be equal to the
2 total amount of credit available in two thousand one and two thousand
3 two; and such authorization for contribution in state fiscal year two
4 thousand three--two thousand four shall be equal to the total amount of
5 credit available in two thousand three; under subdivision nine of
6 section one hundred eighty-six-a of the tax law under the fourth phase
7 of the program for the additional three hundred megawatts provided under
8 chapter sixty-three of the laws of two thousand and under the fifth
9 phase for the additional one hundred eighty-three megawatts provided
10 under chapter two hundred twenty-six of the laws of two thousand two. In
11 state fiscal year two thousand four--two thousand five, such authorized
12 annual contribution shall be equal to one hundred percent of the total
13 amount of such credits available each year to all local distributors of
14 electricity. Such authorization for contribution in state fiscal years
15 two thousand four and two thousand five shall be equal to the total
16 amount of credit available in two thousand four and two thousand five;
17 under subdivision nine of section one hundred eighty-six-a of the tax
18 law under the fourth phase of the program for the additional three
19 hundred megawatts provided under chapter sixty-three of the laws of two
20 thousand and under the fifth phase for the additional one hundred eight-
21 y-three megawatts provided under chapter two hundred twenty-six of the
22 laws of two thousand two. In addition, such authorization for contrib-
23 ution for any extension of any contract for allocations under the fourth
24 phase of the program and under the fifth phase of the program in each
25 state fiscal year shall be equal to the total amount of credit or
26 reimbursement available in state fiscal year two thousand four--two
27 thousand five, state fiscal year two thousand five--two thousand six and
28 two thousand six--two thousand seven. Additionally, notwithstanding any
29 other section of law, the authority is authorized to make a contribution
30 in an amount related to total amounts of credit received under phases
31 one, two, three, four and five of the program. In no case shall the
32 contribution for state fiscal year two thousand five--two thousand six
33 be less than seventy-five million dollars. The contribution for state
34 fiscal year two thousand six--two thousand seven shall be one hundred
35 million dollars. The contribution for state fiscal year two thousand
36 seven--two thousand eight shall be thirty million dollars. The contrib-
37 ution for state fiscal year two thousand eight--two thousand nine shall
38 be twenty-five million dollars. The contribution for state fiscal year
39 two thousand nine--two thousand ten shall be twelve million five hundred
40 thousand dollars. The contribution for state fiscal year two thousand
41 ten--two thousand eleven shall be seven and one-half million dollars.
42 The department of public service shall estimate the payment due by the
43 end of the calendar year in which the credit is available. In no case
44 shall the amount of the total annual contributions for the years during
45 which delivery and sale of power associated with all power for jobs
46 phases and any extensions thereof takes place exceed the aggregate total
47 of four hundred [sixty-one] sixty-nine million [five hundred thousand]
48 dollars.
49 § 14. The opening paragraph of subdivision 5 of section 1005 of the
50 public authorities law, as amended by chapter 294 of the laws of 1968,
51 is amended to read as follows:
52 To develop, maintain, manage and operate those parts of the Niagara
53 and Saint Lawrence hydroelectric projects owned or controlled by it in
54 such manner as to give effect to the policy hereby declared (and all
55 plans and acts, and all contracts for the use, sale, transmission and
56 distribution of the power generated by such projects, shall be made in
S. 7 14 A. 7
1 the light of, consistent with and subject to this policy), namely, that
2 such projects shall be in all respects for the aid, improvement, and
3 benefit of commerce and navigation in, through, along and past the
4 Niagara river, the Saint Lawrence river and the international rapids
5 section thereof, and that in the development of hydro-electric power
6 therefrom such projects shall be considered primarily as for the benefit
7 of the people of the state as a whole [and particularly the domestic and
8 rural consumers to whom the power can economically be made available,
9 and accordingly that sale to and use by industry shall be a secondary
10 purpose, to be utilized principally to secure a sufficiently high load
11 factor and revenue returns to permit domestic and rural use at the
12 lowest possible rates and in such manner as to encourage increased
13 domestic and rural use of electricity]. In furtherance of this policy
14 and to secure a wider distribution of such power and use of the greatest
15 value to the general public of the state, the authority shall in addi-
16 tion to other methods which it may find advantageous make provision so
17 that municipalities and other political sub-divisions of the state now
18 or hereafter authorized by law to engage in the distribution of electric
19 power may secure a reasonable share of the power generated by such
20 projects, and shall sell the same or cause the same to be sold to such
21 municipalities and political subdivisions at prices representing cost of
22 generation, plus capital and operating charges, plus a fair cost of
23 transmission, all as determined by the trustees, and subject to condi-
24 tions which shall assure the resale of such power [to domestic and rural
25 consumers] at the lowest possible price, provided, however, that in
26 disposing of hydro-electric power pursuant to and in furtherance of the
27 aforementioned policy and purposes, appropriate provision may also be
28 made to allocate a reasonable share of project power to agencies created
29 or designated by other states and authorized to resell the power to
30 users under the same terms and conditions as power is disposed of in New
31 York state. To that end, the authority may provide in any contract or
32 contracts which it may make for the sale, transmission and distribution
33 of the power that the purchaser, transmitter or distributor shall
34 construct, maintain and operate, on such terms as the authority may deem
35 proper, such connecting lines as may be necessary for transmission of
36 the power from main transmission lines to such municipalities or poli-
37 tical subdivisions.
38 § 15. Subdivision 16 of section 1005 of the public authorities law, as
39 added by chapter 217 of the laws of 2009, is REPEALED.
40 § 16. Subdivision 16 of section 1005 of the public authorities law, as
41 added by chapter 477 of the laws of 2009, is renumbered subdivision 17,
42 and paragraph (a) of such subdivision is amended to read as follows:
43 (a) As deemed feasible and advisable by the trustees, to finance and
44 design, develop, construct, implement, provide and administer energy-re-
45 lated projects, programs and services for any public entity and any
46 recipient of the economic development power, expansion power, replace-
47 ment power, preservation power, high load factor power, municipal
48 distribution agency power, [and the] power for jobs, and energize New
49 York power programs administered by the authority. In establishing and
50 providing high performance and sustainable building programs and
51 services authorized by this subdivision, the authority is authorized to
52 consult standards, guidelines, rating systems, and/or criteria estab-
53 lished or adopted by other organizations, including but not limited to
54 the United States green building council under its leadership in energy
55 and environmental design (LEED) programs, the green building initi-
56 ative's green globes rating system, and the American National Standards
S. 7 15 A. 7
1 Institute. The source of any financing and/or loans provided by the
2 authority for the purposes of this subdivision may be the proceeds of
3 notes issued pursuant to section one thousand nine-a of this title, the
4 proceeds of bonds issued pursuant to section one thousand ten of this
5 title, or any other available authority funds.
6 § 17. Severability clause. If any clause, sentence, paragraph, subdi-
7 vision, section or part of this act shall be adjudged by any court of
8 competent jurisdiction to be invalid, such judgment shall not affect,
9 impair, or invalidate the remainder thereof, but shall be confined in
10 its operation to the clause, sentence, paragraph, subdivision, section
11 or part thereof directly involved in the controversy in which such judg-
12 ment shall have been rendered. It is hereby declared to be the intent of
13 the legislature that this act would have been enacted even if such
14 invalid provisions had not been included therewith.
15 § 17-a. Notwithstanding the provisions of article 5 of the general
16 construction law, the provisions of chapter 316 of the laws of 1997 and
17 section 7 of chapter 645 of the laws of 2006 are hereby revived and
18 shall continue in full force and effect as such provisions existed on
19 May 15, 2010.
20 § 18. This act shall take effect immediately and shall be deemed to
21 have been in full force and effect on and after May 15, 2010; provided
22 that sections nine, ten and eleven of this act shall take effect on the
23 same date and in the same manner as chapter 88 of the laws of 2010,
24 takes effect; provided that:
25 a. the amendments to section 183 of the economic development law made
26 by section nine of this act shall not affect the expiration of such
27 section and shall be deemed to expire therewith;
28 b. the amendments to section 189 of the economic development law made
29 by sections ten and eleven of this act shall not affect the repeal of
30 such section and shall be deemed repealed therewith;
31 c. the amendments to subdivision 9 of section 186-a of the tax law
32 made by section twelve of this act shall not affect the repeal of such
33 subdivision and shall be deemed repealed therewith;
34 d. the amendments to subparagraph 2 of paragraph g of the 9th undesig-
35 nated paragraph of section 1005 of the public authorities law made by
36 section thirteen of this act shall not affect the expiration of such
37 subparagraph and shall be deemed to expire therewith; and
38 e. the amendments to paragraph (a) of subdivision 17 of section 1005
39 of the public authorities law, made by section sixteen of this act,
40 shall not affect the expiration of such subdivision and shall be deemed
41 to expire therewith.
