S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 8712--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              June 4, 2009
                               ___________

Introduced  by  M.  of  A.  GABRYSZAK,  SCHROEDER,  SCHIMMINGER, JAFFEE,
  DelMONTE, PEOPLES, QUINN, HAYES, GIGLIO -- read once and  referred  to
  the Committee on Energy -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the public authorities law and the economic development
  law, in relation to authorizing unallocated expansion  or  replacement
  power  to  be allocated for western New York economic development fund
  benefits

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The opening paragraph of subdivision 13 of section 1005 of
the public authorities law, as amended by chapter 645  of  the  laws  of
2006, is amended to read as follows:
  Notwithstanding any other provision of law to the contrary but subject
to  the  terms  and  conditions  of federal energy regulatory commission
licenses, to allocate or reallocate directly or by sale for resale,  two
hundred  fifty  megawatts of firm Niagara project hydroelectric power as
"expansion power" and four hundred forty-five megawatts of firm  Niagara
project  hydroelectric power as "replacement power" to businesses within
the state located within thirty miles of the Niagara project,  and  four
hundred  ninety megawatts of firm and interruptible power from the Saint
Lawrence-FDR project as "preservation power" sold to businesses  located
within  the counties of Jefferson, Saint Lawrence and Franklin, provided
that the amount of expansion power allocated to businesses in Chautauqua
county on January first, nineteen hundred eighty-seven shall continue to
be allocated in such county and, provided further  that  up  to  seventy
megawatts  of replacement power, up to thirty-eight and six-tenths mega-
watts of preservation power from the Saint Lawrence-FDR project which is
relinquished or withdrawn after the  effective  date  of  chapter  three
hundred  thirteen  of  the  laws of two thousand five which amended this
subdivision and, for the period ending  on  December  thirty-first,  two

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10545-05-9
              

A. 8712--A                          2

thousand  six,  up  to  twenty  megawatts  of other power from the Saint
Lawrence-FDR project which is unallocated as of the  effective  date  of
chapter  three  hundred  thirteen of the laws of two thousand five which
amended  this  subdivision, shall be allocated by the authority together
with such other funds of the authority as the trustees deem feasible and
advisable for energy cost savings benefits  AND  FOR  WESTERN  NEW  YORK
ECONOMIC  DEVELOPMENT  FUND  BENEFITS pursuant to the [twelfth] ELEVENTH
undesignated paragraph of this section.   Provided,  however,  that  the
amount  of  replacement,  preservation  power,  or the additional twenty
megawatts of Saint Lawrence-FDR power for  the  period  ending  December
thirty-first, two thousand six made available for such purpose, used for
energy  cost savings benefits that are relinquished by or withdrawn from
a recipient thereof shall be offered by  the  authority  proportionately
for  a  period  of six months for reallocation to applicants who qualify
respectively  for  replacement  or  preservation  power  allocations  as
provided in this subdivision. If such power is not allocated within such
period  it  shall  be  allocated  for the purpose of energy cost savings
benefits pursuant to subdivision (h) of section one hundred eighty-three
of the economic development law. The authority shall negotiate contracts
on reasonable terms and conditions to renew or  extend  every  permanent
contract  allocation  of expansion power in effect on the effective date
of this subdivision and, to the extent consistent with  such  contracts,
the  authority  shall negotiate contracts on reasonable terms and condi-
tions to extend or renew all other allocations  or  allotments  of  such
power  in  effect on such date.  The authority shall negotiate contracts
on reasonable terms and conditions to renew or extend for a period of at
least five years every  permanent  contract  allocation  of  replacement
power  in effect on the effective date of chapter three hundred thirteen
of the laws of two thousand five which  added  this  sentence  and  that
would  expire  by  its terms on or before the end of the initial federal
energy regulatory commission license for the Niagara  project;  provided
that,  in  negotiating  the  terms and conditions of such contracts, the
authority may consider a business' compliance with all current  contrac-
tual  obligations,  including  employment  and  power usage commitments.
Contracts entered  into  pursuant  to  this  subdivision  shall  contain
reasonable  provisions  providing for the partial or complete withdrawal
of the power in the event  the  recipient  fails  to  maintain  mutually
agreed  levels  of employment, investment, and power utilization. Expan-
sion or replacement power relinquished by businesses or withdrawn by the
authority shall be allocated directly or  by  sale  for  resale  by  the
authority  to businesses within the state located within thirty miles of
the Niagara project provided, that the PROCEEDS FROM THE  SALE  OF  SUCH
UNALLOCATED  AND  ALLOCATED,  BUT RELINQUISHED OR WITHDRAWN OR CURRENTLY
NOT ACCESSED EXPANSION OR REPLACEMENT POWER, AS SHALL BE  DETERMINED  BY
THE  TRUSTEES,  SHALL  BE ALLOCATED FOR THE PURPOSES OF WESTERN NEW YORK
ECONOMIC DEVELOPMENT FUND BENEFITS PURSUANT TO THE ELEVENTH UNDESIGNATED
PARAGRAPH OF THIS SECTION.  PROCEEDS TO SUCH WESTERN NEW  YORK  ECONOMIC
DEVELOPMENT FUND SHALL NOT PRECLUDE THE AUTHORITY FROM ALLOCATING EXPAN-
SION  OR REPLACEMENT POWER TO ELIGIBLE COMPANIES UNDER THE PROVISIONS OF
THIS SECTION.  THE amount of power allocated to businesses in Chautauqua
county on January first, nineteen hundred eighty-seven  shall  be  allo-
cated  in  such county. Preservation power that is relinquished by busi-
nesses or withdrawn by the authority shall be allocated directly  or  by
sale for resale by the authority within the counties of Jefferson, Saint
Lawrence and Franklin. Allocations made pursuant to this paragraph shall
be  made  in accordance with criteria established by the trustees.  Such

A. 8712--A                          3

criteria shall address the expansion of industry and employment pursuant
to paragraph (a) of this subdivision and the revitalization of  existing
industry pursuant to paragraph (b) of this subdivision.
  S 2. The eleventh undesignated paragraph of section 1005 of the public
authorities  law, as amended by section 7 of part U of chapter 59 of the
laws of 2006, is amended to read as follows:
  The authority is authorized to allocate up  to  seventy  megawatts  of
unallocated  power  from the Niagara project sold prior to the effective
date of this paragraph as replacement  power,  up  to  thirty-eight  and
six-tenths  megawatts  of preservation power from the Saint Lawrence-FDR
project which is relinquished or withdrawn after the effective  date  of
this  paragraph, and for the period ending on December thirty-first, two
thousand six, up to an additional twenty megawatts  of  power  from  the
Saint Lawrence-FDR project which is unallocated as of the effective date
of  this paragraph, for sale into the wholesale market, the net earnings
from which and such other funds of the authority as deemed feasible  and
advisable  by  the trustees, shall be used for energy cost savings bene-
fits. Such energy cost savings benefits shall be made  upon  recommenda-
tion  of  the  economic  development power allocation board, pursuant to
subdivision (h) of section one  hundred  eighty-three  of  the  economic
development  law.  THE  AUTHORITY  IS AUTHORIZED TO ALLOCATE UNALLOCATED
EXPANSION AND REPLACEMENT POWER FROM THE  NIAGARA  PROJECT,  AND  RELIN-
QUISHED  OR WITHDRAWN EXPANSION AND REPLACEMENT POWER, FOR SALE INTO THE
WHOLESALE MARKET, THE NET EARNINGS FROM WHICH AND SUCH  OTHER  FUNDS  OF
THE AUTHORITY AS DEEMED FEASIBLE AND ADVISABLE BY THE TRUSTEES, SHALL BE
USED FOR WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND BENEFITS. SUCH WEST-
ERN  NEW  YORK  ECONOMIC  DEVELOPMENT  FUND  BENEFITS SHALL BE MADE UPON
RECOMMENDATION OF THE WESTERN NEW YORK ADVISORY  GROUP,  AS  ESTABLISHED
UNDER  "MEMORANDUM OF UNDERSTANDING REGARDING WESTERN NEW YORK HYDROPOW-
ER" AGREED TO BY THE AUTHORITY ON OCTOBER  TWENTY-SECOND,  TWO  THOUSAND
THREE,  PURSUANT  TO SUBDIVISION (I) OF SECTION ONE HUNDRED EIGHTY-THREE
OF THE ECONOMIC DEVELOPMENT LAW. For purposes  of  this  paragraph,  the
term net earnings shall mean any excess of revenues earned from the sale
of  such  power  allocated  to the wholesale market from the Niagara and
Saint Lawrence-FDR projects over  the  revenues  that  would  have  been
received  had such firm power been allocated and sold on a firm basis by
the authority prior to the effective date of this paragraph.
  S 3. Section 183 of the economic development law is amended by  adding
a new subdivision (i) to read as follows:
  (I)  1. THE WESTERN NEW YORK ADVISORY GROUP SHALL SOLICIT APPLICATIONS
FOR AND MAKE RECOMMENDATIONS FOR APPROVAL OF WESTERN NEW  YORK  ECONOMIC
DEVELOPMENT  FUND  BENEFITS  IN  AMOUNTS  MADE AVAILABLE PURSUANT TO THE
ELEVENTH UNDESIGNATED PARAGRAPH OF SECTION  ONE  THOUSAND  FIVE  OF  THE
PUBLIC AUTHORITIES LAW.
  2.  ELIGIBLE PROJECTS SHALL INCLUDE PROJECTS PROPOSED BY ENTITIES FROM
THE  PUBLIC,  PRIVATE  OR  NOT-FOR-PROFIT  SECTORS  LOCATED   WITHIN   A
THIRTY-MILE  RADIUS  OF  THE NIAGARA POWER PLANT PROJECT THAT DEVELOP OR
MANAGE ECONOMIC DEVELOPMENT PROJECTS THAT HAVE IDENTIFIED  THE  ULTIMATE
SITE  OR  USER  OF  SUCH  ECONOMIC DEVELOPMENT FUND BENEFITS.   ELIGIBLE
PROJECTS SHALL BE PROPOSED BY ENTITIES THAT ARE CUSTOMERS  SERVED  UNDER
THE POWER AUTHORITY OF THE STATE OF NEW YORK'S HIGH LOAD FACTOR, ECONOM-
IC  DEVELOPMENT  POWER  AND OTHER BUSINESS CUSTOMERS SERVED BY POLITICAL
SUBDIVISIONS OF THE STATE AUTHORIZED BY LAW TO ENGAGE  IN  THE  DISTRIB-
UTION OF ELECTRIC POWER THAT WERE AUTHORIZED TO BE SERVED BY THE AUTHOR-
ITY'S FORMER JAMES A. FITZPATRICK NUCLEAR POWER PLANT.

A. 8712--A                          4

  3.  EACH  APPLICATION FOR A WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND
BENEFIT SHALL BE EVALUATED UNDER CRITERIA ADOPTED  BY  THE  WESTERN  NEW
YORK  ADVISORY  GROUP,  IN  CONSULTATION WITH THE POWER AUTHORITY OF THE
STATE OF NEW YORK, WHICH CRITERIA SHALL BE DESIGNED TO PROMOTE  ECONOMIC
DEVELOPMENT,  MAINTAIN  AND  DEVELOP  JOBS,  AND  ENCOURAGE  NEW CAPITAL
INVESTMENT THROUGHOUT THE STATE OF NEW YORK. SUCH CRITERIA SHALL ADDRESS
BUT NEED NOT BE LIMITED TO:
  (A) THE OVERALL ECONOMIC IMPACT OF  THE  APPLICANT  IN  TERMS  OF  THE
NUMBER  OF JOBS TO BE CREATED OR RETAINED, AVERAGE ANNUAL PAYROLL, CAPI-
TAL INVESTMENT AND USE OF NEW YORK STATE SUPPLIERS;
  (B) THE LIKELIHOOD THAT IN THE ABSENCE OF APPROVAL OF  A  WESTERN  NEW
YORK  ECONOMIC  DEVELOPMENT  FUND  BENEFIT,  THE  APPLICANT WOULD CLOSE,
CONTRACT OR RELOCATE OUTSIDE THE STATE OF NEW YORK;
  (C) THE APPLICANT'S COMPLIANCE WITH THE COMMITMENT  TO  RETAIN  AND/OR
CREATE JOBS CONTAINED IN ITS PRIOR POWER CONTRACT WITH THE POWER AUTHOR-
ITY OF THE STATE OF NEW YORK;
  (D)  THE  EXTENT TO WHICH A WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND
BENEFIT WILL AFFECT THE OVERALL PRODUCTIVITY OR COMPETITIVENESS  OF  THE
APPLICANT'S BUSINESS AND ITS EXISTING EMPLOYMENT WITHIN THE STATE; AND
  (E) THE OVERALL IMPACT OF THE PROJECT IN TERMS OF THE ECONOMIC VIABIL-
ITY  OF IDENTIFIED ULTIMATE SITE OR USER INCLUDING THE PROJECT'S ABILITY
TO INDUCE ADDITIONAL COMMERCIAL ACTIVITY  ON  THE  SITE,  REVITALIZE  AN
URBAN AREA, AND ITS COMPLIANCE WITH REGIONAL DEVELOPMENT PLANS.
  4. APPLICATIONS FOR A WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND BENE-
FIT  SHALL  BE  IN  THE  FORM AND CONTAIN SUCH INFORMATION, EXHIBITS AND
SUPPORTING DATA AS THE BOARD MAY PRESCRIBE. THE WESTERN NEW  YORK  ADVI-
SORY  GROUP  SHALL  REVIEW THE APPLICATIONS RECEIVED AND SHALL DETERMINE
THE APPLICATIONS WHICH BEST MEET THE CRITERIA ESTABLISHED FOR THE  BENE-
FITS  PURSUANT  TO THIS SUBDIVISION AND IT SHALL RECOMMEND SUCH APPLICA-
TIONS TO THE POWER AUTHORITY AND THE STATE OF NEW YORK WITH  SUCH  TERMS
AND CONDITIONS AS IT DEEMS APPROPRIATE.  SUCH TERMS AND CONDITIONS SHALL
INCLUDE  REASONABLE  PROVISIONS  PROVIDING  FOR  THE PARTIAL OR COMPLETE
WITHDRAWAL OF THE WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND BENEFIT  IN
THE  EVENT  THAT  THE  RECIPIENT  FAILS TO MAINTAIN MUTUALLY AGREED UPON
COMMITMENTS THAT MAY INCLUDE, BUT ARE  NOT  LIMITED  TO,  INFRASTRUCTURE
PROJECT  COMPLETION.  RECOMMENDATION  FOR APPROVAL OF A WESTERN NEW YORK
ECONOMIC DEVELOPMENT FUND BENEFIT SHALL QUALIFY AN APPLICANT TO  RECEIVE
A  WESTERN  NEW  YORK  ECONOMIC  DEVELOPMENT FUND BENEFIT FROM THE POWER
AUTHORITY OF THE STATE OF NEW YORK PURSUANT TO THE TERMS AND  CONDITIONS
OF THE RECOMMENDATION.
  5.  THE TRANSFER OF A WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND BENE-
FIT SHALL BE PROHIBITED UNLESS SPECIFICALLY APPROVED BY THE WESTERN  NEW
YORK ADVISORY GROUP AS CONSISTENT WITH THE CRITERIA ESTABLISHED PURSUANT
TO  THIS  PARAGRAPH.  ANY  TRANSFER  WHICH  OCCURS WITHOUT SUCH ADVISORY
GROUP'S APPROVAL SHALL BE INVALID AND  SUCH  TRANSFER  MAY  SUBJECT  THE
RECIPIENT TO REVOCATION OF ITS BENEFIT AND MODIFICATION OR REVOCATION OF
ITS CONTRACT.
  S  4. This act shall take effect immediately, provided that the amend-
ments to section 183 of the economic development  law  made  by  section
three  of  this  act shall not affect the expiration of such section and
shall be deemed to expire therewith.