S T A T E O F N E W Y O R K
________________________________________________________________________
9039
2009-2010 Regular Sessions
I N A S S E M B L Y
June 20, 2009
___________
Introduced by M. of A. CAHILL, SILVER, FARRELL -- Multi-Sponsored by --
M. of A. ALESSI, AMEDORE, BENEDETTO, BOYLAND, CHRISTENSEN, CLARK,
COLTON, CRESPO, DESTITO, EDDINGTON, ENGLEBRIGHT, GABRYSZAK, GALEF,
GORDON, JACOBS, JAFFEE, KOON, LANCMAN, LATIMER, LAVINE, LIFTON, LUPAR-
DO, MARKEY, PHEFFER, RAMOS, REILLY, RUSSELL, SCHIMEL, SKARTADOS,
SPANO, STIRPE, TITONE, WEINSTEIN -- read once and referred to the
Committee on Energy
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:
Section 1. Paragraphs 2 and 4 of subdivision (h) of section 183 of the
economic development law, paragraph 2 as amended by section 1 of part Y
of chapter 59 of the laws of 2008 and paragraph 4 as amended by chapter
89 of the laws of 2007, are amended to read as follows:
2. During the period commencing on November first, two thousand five
and ending on [June thirtieth] MAY FIFTEENTH, two thousand [nine] TEN
eligible businesses shall only include customers served under the power
authority of the state of New York's high load factor, economic develop-
ment power and other business customers served by political subdivisions
of the state authorized by law to engage in the distribution of electric
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14489-02-9
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power that were authorized to be served by the authority from the
authority's former James A. Fitzpatrick nuclear power plant as of the
effective date of this subdivision whose power prices may be subject to
increase before [June thirtieth] MAY FIFTEENTH, two thousand [nine] TEN.
Provided, however, that the total amount of megawatts of replacement and
preservation power which, due to the extension of the energy cost
savings benefits, are not relinquished by or withdrawn from a recipient
shall be deemed to be relinquished or withdrawn for purposes of offering
such megawatts by the authority for reallocation pursuant to subdivision
thirteen of section one thousand five of the public authorities law.
Provided, further, that for any such reallocation, the authority shall
maintain the same energy cost savings benefit level for all eligible
businesses using any available authority resources as deemed feasible
and advisable by the trustees pursuant to section seven of part U of
chapter fifty-nine of the laws of two thousand six.
4. Applications for an energy cost savings benefit shall be in the
form and contain such information, exhibits and supporting data as the
board may prescribe. The board shall review the applications received
and shall determine the applications which best meet the criteria estab-
lished for the benefits pursuant to this subdivision and it shall recom-
mend such applications to the power authority of the state of New York
with such terms and conditions as it deems appropriate; provided, howev-
er, that for energy cost savings benefits granted on or after June thir-
tieth, two thousand [seven] NINE through [June thirtieth] MAY FIFTEENTH,
two thousand [eight] TEN, the board shall expedite the awarding of such
benefits and shall defer the review of compliance with such criteria
until after the applicant has been awarded an energy cost savings bene-
fit. Such terms and conditions shall include reasonable provisions
providing for the partial or complete withdrawal of the energy cost
savings benefit in the event the recipient fails to maintain mutually
agreed upon commitments that may include, but are not limited to, levels
of employment, capital investment and power utilization. Recommendation
for approval of an energy cost savings benefit shall qualify an appli-
cant to receive an energy cost savings benefit from the power authority
of the state of New York pursuant to the terms and conditions of the
recommendation.
S 2. The opening paragraph of paragraph 5 of subdivision (a) of
section 189 of the economic development law, as amended by section 2 of
part Y of chapter 59 of the laws of 2008, is amended to read as follows:
"Power for jobs electricity savings reimbursements" shall mean
payments made by the power authority of the state of New York as recom-
mended by the board to recipients of allocations of power under phases
four and five of the power for jobs program for a period of time until
November thirtieth, two thousand four, subsequent to the expiration of
their phase four or five power for jobs contract provided however that
any power for jobs recipient may choose to receive an electricity
savings reimbursement as a substitute for a contract extension for the
period from the date the recipient's contract expires through [June
thirtieth] MAY FIFTEENTH, two thousand [nine] TEN. The "basic
reimbursement" is an amount that when credited against the recipient's
actual "unit cost of electricity" during a quarter (meaning the cost for
commodity and delivery per kilowatt-hour for the quantity of electricity
purchased and delivered under the power for jobs program during a simi-
lar period in the final year of the recipient's contract), results in an
effective unit cost of electricity during the quarter equal to the aver-
age unit cost of electricity such recipient paid during the final year
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of the contract for power allocated under phase four or five of the
power for jobs program.
S 3. Subdivisions (f) and (l) of section 189 of the economic develop-
ment law, as amended by section 3 of part Y of chapter 59 of the laws of
2008, are amended to read as follows:
(f) Eligibility. The board shall recommend applications for allo-
cations of power under the power for jobs program to or for the use of
businesses which normally utilize a minimum peak electric demand in
excess of four hundred kilowatts; provided, however, that up to one
hundred megawatts of power available for allocation during the initial
three phases of the power for jobs program may be recommended for allo-
cations to not-for-profit corporations and to small businesses; and,
provided, further that up to seventy-five megawatts of power available
for allocation during the fourth phase of the program may be recommended
for allocations to not-for-profit corporations and to small businesses.
The board may require small businesses that normally utilize a minimum
peak electric demand of less than one hundred kilowatts to aggregate
their electric demand in amounts of no less than one hundred kilowatts,
for the purposes of applying to the board for an allocation of power.
The board shall recommend allocations of the additional three hundred
megawatts available during the fourth phase of the program to any such
eligible applicant, including any recipient of power allocated during
the first phase of the program. The board shall recommend allocations of
the additional one hundred eighty-three megawatts available during the
fifth phase of the program to any eligible applicant, including any
recipient of power allocated during the second and third phases of the
program; provided, however, that the term of contracts for allocations
under the fifth phase of the program shall in no case extend beyond
[June thirtieth] MAY FIFTEENTH, two thousand [nine] TEN. Notwithstand-
ing any provision of law to the contrary, and, in particular, the
provisions of this chapter concerning the terms of contracts for allo-
cations under the power for jobs program, the terms of any contract with
a recipient of power allocated under phase two of the power for jobs
program that has expired or will expire on or before the thirty-first
day of August, two thousand two, may be extended by the power authority
of the state of New York for an additional period of three months effec-
tive on the date of such expiration, pending the filing and approval of
an application by such recipient for an allocation under the fifth phase
of the program. The term of any new contract with such recipient under
the fifth phase of the program shall be deemed to include any three
month contract extension made pursuant to this subdivision and the
termination date of any such new contract under phase five shall be no
later than if such new contract had commenced upon the expiration of the
recipient's original phase two contract. The terms of any contract with
a recipient of power allocated under phase four and/or phase five of the
power for jobs program that has expired or will expire on or before the
thirty-first day of December, two thousand five, may be extended by the
power authority of the state of New York from a date beginning no earli-
er than the first day of December, two thousand four and extending
through [June thirtieth] MAY FIFTEENTH, two thousand [nine] TEN.
(l) The board shall solicit and review applications for the power for
jobs electricity savings reimbursements and contract extensions from
recipients of power for jobs allocations under phases four and five of
the program for the award of such reimbursements and/or contract exten-
sions. The board may prescribe a simplified form and content for an
application for such reimbursements or extensions. An applicant shall be
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eligible for such reimbursements and/or extensions only if it is in
compliance with and agrees to continue to meet the job retention and
creation commitments set forth in its prior power for jobs contract, or
such other commitments as the board deems reasonable; provided, however,
that for the power for jobs electricity savings reimbursements and
contract extensions granted on or after June thirtieth, two thousand
[seven] NINE through [June thirtieth] MAY FIFTEENTH, two thousand
[eight] TEN, the board shall expedite the awarding of such reimburse-
ments and/or extensions and shall defer the review of compliance with
such commitments until after the applicant has been awarded a power for
jobs electricity savings reimbursement and/or contract extension. The
board shall review such applications and make recommendations for the
award: 1. of such reimbursements through the power authority of the
state of New York for a period of time up to November thirtieth, two
thousand four, and 2. of such contract extensions or reimbursements as
applied for by the recipient for a period of time beginning December
first, two thousand four and ending [June thirtieth] MAY FIFTEENTH, two
thousand [nine] TEN. At no time shall a recipient receive both a
reimbursement and extension after December first, two thousand four. The
power authority of the state of New York shall receive notification from
the board regarding the award of power for jobs electricity savings
reimbursements and/or contract extensions.
S 4. Section 9 of 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, as amended by section 4
of part Y of chapter 59 of the laws of 2008, is amended to read as
follows:
S 9. This act shall take effect immediately and shall expire and be
deemed repealed [June 30] MAY 15, [2009] 2010.
S 5. Subdivision 9 of section 186-a of the tax law, as amended by
section 5 of part Y of chapter 59 of the laws of 2008, is amended to
read as follows:
9. Notwithstanding any other provision of this chapter or any other
law to the contrary, for taxable periods nineteen hundred ninety-seven
through and including two thousand [nine] TEN, any utility which deliv-
ers power under the power for jobs program, as established by section
one hundred eighty-nine of the economic development law, shall be
allowed a credit, subject to the limitations thereon contained in this
subdivision, against the tax imposed under this section equal to net
lost revenues from the delivery of power under such power for jobs
program. Net lost revenues means the "net receipts" less "net utility
revenue" from such delivery of power. For purposes of this subdivision,
"net receipts" shall mean the amount that the utility would have other-
wise received from customers receiving power pursuant to allocations by
the New York state economic development power allocation board in
accordance with section one hundred eighty-nine of the economic develop-
ment law, or from customers whose allocation has been transferred to an
energy service company, or from energy service companies to which such
allocation has been transferred, pursuant to its tariff supervised by
the public service commission for substantially comparable service
otherwise applicable to such customers or energy service companies in
the absence of such designation, less the utility's annual average
incremental short-term variable and capacity costs of providing such
power in the absence of such purchase. For the purposes of this subdivi-
sion, "net utility revenue" shall mean the revenues the utility actually
receives in accordance with such section one hundred eighty-nine from
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such customers so designated by the New York state economic development
power allocation board or from customers whose allocation has been
transferred to an energy service company, or from the energy service
companies to which a power for jobs allocation has been transferred,
less the utility's cost of such power under such program. Provided,
however, that any credit under this section shall be used only with
respect to the same taxable year during which such credit arose and
shall not be capable of being carried forward or backward to any other
taxable period. Nor shall any credit be allowed to any utility for the
total amount of power, expressed in kilowatt hours, purchased by the
customers of such utility under such program during the taxable period
that exceeds the prorated "baseline energy use" by all customers of that
utility purchasing power under such program during the taxable period.
"Baseline energy use" with respect to each customer shall mean the larg-
est amount of kilowatt hours of energy used by such customer during any
twelve consecutive month period occurring during the preceding thirty
months immediately preceding the New York state economic development
power allocation board's recommendation of such customer's application,
prorated to reflect the length of time of the customer's participation
in such program during the taxable period. Provided further, however,
that in accordance with subdivision (k) of section one hundred eighty-
nine of the economic development law no tax credit shall be available
for any revenue losses when a utility has declined to purchase power
allocated for sale under such program. No electric corporation shall be
allowed the tax credit authorized by this subdivision until it shall
file a certificate from the department of public service for the period
covered by the return verifying that the calculation of such tax credit
complies with this subdivision and the department of public service has
approved such certificate and forwarded a copy of such approved certif-
icate to the commissioner or any amended certificate resulting from the
need for correction. The credit allowed by this subdivision shall not be
applicable in calculating any other tax imposed or authorized to be
imposed by this chapter or any other law, and the amount of the tax
surcharge imposed under section one hundred eighty-six-c of this article
shall be calculated and payable as if the credit provided for by this
subdivision were not allowed.
S 6. Section 11 of 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, as
amended by section 6 of part Y of chapter 59 of the laws of 2008, is
amended to read as follows:
S 11. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after April 1, 2006; provided,
however, that the amendments to section 183 of the economic development
law and subparagraph 2 of paragraph g of the ninth undesignated para-
graph of section 1005 of the public authorities law made by sections two
and six of this act shall not affect the expiration of such section and
subparagraph, respectively, and shall be deemed to expire therewith;
provided further, however, that the amendments to section 189 of the
economic development law and subdivision 9 of section 186-a of the tax
law made by sections three, four, five and ten of this act shall not
affect the repeal of such section and subdivision, respectively, and
shall be deemed to be repealed therewith; provided further, however,
that section seven of this act shall expire and be deemed repealed [June
30] MAY 15, [2009] 2010.
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S 7. Subparagraph 2 of paragraph g of the ninth undesignated para-
graph of section 1005 of the public authorities law, as amended by
section 7 of part Y of chapter 59 of the laws of 2008, is amended to
read as follows:
2. The authority, as deemed feasible and advisable by the trustees, is
authorized to make payments to recipients of the power for jobs elec-
tricity savings reimbursements and additional annual voluntary contrib-
utions into the state treasury to the credit of the general fund. The
authority shall make such contributions to the state treasury no later
than ninety days after the end of the calendar year in which a credit
under subdivision nine of section one hundred eighty-six-a of the tax
law is available: (a) for the additional three hundred megawatts of
power under the fourth phase of the program provided under chapter
sixty-three of the laws of two thousand and under the fifth phase for
the additional one hundred eighty-three megawatts provided under chapter
two hundred twenty-six of the laws of two thousand two; and (b) for any
extension of any contract for allocations under the fourth phase of the
program and under the fifth phase of the program. Payments for any elec-
tricity savings reimbursement under section one hundred eighty-nine of
the economic development law shall be made pursuant to such section.
Such annual contributions shall be equal to fifty percent of the total
amount of such credits available each year to all local distributors of
electricity. In addition, such authorization for contribution in state
fiscal year two thousand two--two thousand three shall be equal to the
total amount of credit available in two thousand one and two thousand
two; and such authorization for contribution in state fiscal year two
thousand three--two thousand four shall be equal to the total amount of
credit available in two thousand three; under subdivision nine of
section one hundred eighty-six-a of the tax law under the fourth phase
of the program for the additional three hundred megawatts provided under
chapter sixty-three of the laws of two thousand and under the fifth
phase for the additional one hundred eighty-three megawatts provided
under chapter two hundred twenty-six of the laws of two thousand two. In
state fiscal year two thousand four--two thousand five, such authorized
annual contribution shall be equal to one hundred percent of the total
amount of such credits available each year to all local distributors of
electricity. Such authorization for contribution in state fiscal years
two thousand four and two thousand five shall be equal to the total
amount of credit available in two thousand four and two thousand five;
under subdivision nine of section one hundred eighty-six-a of the tax
law under the fourth phase of the program for the additional three
hundred megawatts provided under chapter sixty-three of the laws of two
thousand and under the fifth phase for the additional one hundred eight-
y-three megawatts provided under chapter two hundred twenty-six of the
laws of two thousand two. In addition, such authorization for contrib-
ution for any extension of any contract for allocations under the fourth
phase of the program and under the fifth phase of the program in each
state fiscal year shall be equal to the total amount of credit or
reimbursement available in state fiscal year two thousand four--two
thousand five, state fiscal year two thousand five--two thousand six and
two thousand six--two thousand seven. Additionally, notwithstanding any
other section of law, the authority is authorized to make a contribution
in an amount related to total amounts of credit received under phases
one, two, three, four and five of the program. In no case shall the
contribution for state fiscal year two thousand five--two thousand six
be less than seventy-five million dollars. The contribution for state
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fiscal year two thousand six--two thousand seven shall be one hundred
million dollars. The contribution for state fiscal year two thousand
seven--two thousand eight shall be thirty million dollars. The contrib-
ution for state fiscal year two thousand eight--two thousand nine shall
be twenty-five million dollars. THE CONTRIBUTION FOR STATE FISCAL YEAR
TWO THOUSAND NINE--TWO THOUSAND TEN SHALL BE TWELVE MILLION FIVE HUNDRED
THOUSAND DOLLARS. The department of public service shall estimate the
payment due by the end of the calendar year in which the credit is
available. In no case shall the amount of the total annual contributions
for the years during which delivery and sale of power associated with
all power for jobs phases and any extensions thereof takes place exceed
the aggregate total of four hundred [forty-nine] SIXTY-ONE million FIVE
HUNDRED THOUSAND dollars.
S 8. Section 1005 of the public authorities law is amended by adding
a new subdivision 16 to read as follows:
16. A. TO PROMOTE THE CONSERVATION AND EFFICIENT USE OF ELECTRICITY,
THE POWER AUTHORITY OF THE STATE OF NEW YORK SHALL UNDERTAKE OR CAUSE TO
BE UNDERTAKEN ENERGY AUDITS IN CONNECTION WITH THE ECONOMIC DEVELOPMENT
POWER, EXPANSION POWER, REPLACEMENT POWER, PRESERVATION POWER, HIGH LOAD
FACTOR POWER, MUNICIPAL DISTRIBUTION AGENCY POWER AND THE POWER FOR JOBS
PROGRAMS. ENERGY AUDITS SHALL BE CONDUCTED FOR A REPRESENTATIVE SAMPLE
OF THE RECIPIENTS OF SUCH LOW-COST POWER PROGRAMS. THE AUDITS SHALL
ASSESS A RECIPIENT'S ELECTRICITY USE TO DETERMINE COST-EFFECTIVE MEAS-
URES THAT COULD BE EMPLOYED TO REDUCE ENERGY COSTS, ENERGY USE, OR
IMPROVE THE EFFICIENCY OF BUILDINGS, BUILDING SYSTEMS, EQUIPMENT, PROC-
ESSES OR OPERATIONS. THE REPRESENTATIVE SAMPLE SHALL TAKE INTO CONSIDER-
ATION THE PROGRAM OF ENROLLMENT, TYPE OF BUSINESS, GEOGRAPHY FOR STATE-
WIDE PROGRAMS AND ALLOCATION SIZE. RECIPIENTS' ENERGY AUDITS PERFORMED
UP TO FIVE YEARS PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION MAY BE
CONSIDERED. COSTS OF THE ENERGY AUDITS SHALL BE PAID BY THE POWER
AUTHORITY OF THE STATE OF NEW YORK AS DEEMED FEASIBLE AND ADVISABLE BY
THE BOARD. FOR PURPOSES OF IMPLEMENTING THIS SUBDIVISION ONLY, THE POWER
AUTHORITY OR ITS AGENT IS AUTHORIZED TO APPLY FOR FUNDING FROM ANY
PROGRAM THAT PAYS ALL OR SOME OF THE COSTS OF SUCH AUDITS, AND THE POWER
AUTHORITY OR ITS AGENT SHALL BE ENTITLED TO RECEIVE SUCH FUNDING AS IF
THE RECIPIENT OF SUCH LOW-COST POWER HAD APPLIED FOR THE FUNDING DIRECT-
LY.
B. THE AUTHORITY SHALL COMPLETE AND SUBMIT A REPORT ON THE ENERGY
AUDIT PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE TEMPO-
RARY PRESIDENT OF THE SENATE, THE MINORITY LEADER OF THE SENATE, AND THE
MINORITY LEADER OF THE ASSEMBLY, THE CHAIR OF THE SENATE FINANCE COMMIT-
TEE, THE CHAIR OF THE ASSEMBLY WAYS AND MEANS COMMITTEE, THE CHAIR OF
THE ASSEMBLY ENERGY COMMITTEE AND THE CHAIR OF THE SENATE ENERGY AND
TELECOMMUNICATIONS COMMITTEE AND THE STATE COMPTROLLER BY FEBRUARY TWEN-
TY-EIGHTH, TWO THOUSAND TEN.
S 9. (a) The power authority of the state of New York, in consultation
with the department of economic development, shall complete and submit a
report on the power authority's low cost power programs. The report
shall examine the replacement, expansion, preservation power programs,
the industrial economic development power program, the power for jobs
programs, and the economic cost saving benefits power programs. Informa-
tion to be presented in the report shall reflect the state of the
programs as of June 30, 2009 and the year prior and shall include but
not be limited to:
i. a short history of the programs;
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ii. a complete list of all recipients of these programs grouped by
program;
iii. the city or town and county of each recipient;
iv. the allocation allotted to each recipient;
v. annualized retail value of each program;
vi. the original employment commitment from each recipient;
vii. the current employment level for each recipient;
viii. an assessment of the economic benefits to New York, which shall
include, but not be limited to: jobs created and retained, level of
capital investment, wage and benefit levels, and the effect of regional
economies; and shall include an assessment on the effect of these
programs considering the ongoing economic conditions in the state and
any methodology used in analyses in this report; and
ix. the energy procurement practices, including all supply side and
demand side activities, the authority uses to meet the capacity and
needs of its customers.
The report shall also include a brief description of the preference
power program including the total power available to the program as
measured in megawatts, the total power used by the program as measured
in megawatt hours for the program as a whole and by utility service
area, an estimated annualized retail value for the program and the
metric for calculating that value. The report shall be submitted by
December 30, 2009 to the governor, the speaker of the assembly, the
temporary president of the senate, the minority leader of the senate,
the minority leader of the assembly, the chair of the senate finance
committee, the chair of the assembly ways and means committee, the chair
of the assembly energy committee, the chair of the senate energy and
telecommunications committee, and the state comptroller and shall be
made available on the authority's website.
(b) The power authority of the state of New York shall provide copies
of all reports required by subdivision 14 of section 1005 of the public
authorities law, for the year 2006, 2007, 2008 and 2009 to the governor,
the speaker of the assembly, the temporary president of the senate, the
minority leader of the senate, and the minority leader of the assembly,
the chair of the senate finance committee, the chair of the assembly
ways and means committee, the chair of the assembly energy committee and
the chair of the senate energy and telecommunications committee, and the
state comptroller by December 30, 2009.
S 10. Severability clause. If any clause, sentence, paragraph, subdi-
vision, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included therewith.
S 11. This act shall take effect immediately; provided that the amend-
ments to sections 183 and 189 of the economic development law, subdivi-
sion 9 of section 186-a of the tax law and subparagraph 2 of paragraph g
of the ninth undesignated paragraph of section 1005 of the public
authorities law, made by sections one, two, three, five and seven of
this act, shall not affect the expiration of such provisions and shall
be deemed repealed therewith.