S T A T E O F N E W Y O R K
________________________________________________________________________
9008
2009-2010 Regular Sessions
I N A S S E M B L Y
June 19, 2009
___________
Introduced by M. of A. KOLB, AMEDORE, BARCLAY, BUTLER, CORWIN, FINCH,
OAKS, O'MARA -- Multi-Sponsored by -- M. of A. ALFANO, BACALLES, BALL,
BARRA, BOYLE, BURLING, CALHOUN, CHRISTENSEN, CONTE, CROUCH, DUPREY,
ERRIGO, FITZPATRICK, GIGLIO, HAWLEY, HAYES, JORDAN, P. LOPEZ, McDO-
NOUGH, McKEVITT, MILLER, MOLINARO, QUINN, RABBITT, RAIA, REILICH,
SAYWARD, SCOZZAFAVA, TEDISCO, THIELE, TOBACCO, TOWNSEND, WALKER --
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; and to amend the public
authorities law, in relation to authorizing an additional voluntary
contribution into the state treasury under the power for jobs 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, two thousand [nine] TEN eligible busi-
nesses shall only include customers served under the power authority of
the state of New York's high load factor, economic development power and
other business customers served by political subdivisions of the state
authorized by law to engage in the distribution of electric 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14297-01-9
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of this subdivision whose power prices may be subject to increase before
June thirtieth, 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 relin-
quished by or withdrawn from a recipient shall be deemed to be relin-
quished 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 avail-
able authority resources as deemed feasible and advisable by the trus-
tees 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, 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 benefit. 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 applicant 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. ANY
ENERGY COST SAVINGS BENEFIT WHICH IS RELINQUISHED OR WITHDRAWN AFTER THE
EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE WHICH
AMENDED THIS PARAGRAPH SHALL BE AVAILABLE FOR REALLOCATION TO ELIGIBLE
BUSINESSES AS DEFINED IN PARAGRAPH TWO OF THIS SUBDIVISION.
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 thir-
tieth, two thousand [nine] TEN. The "basic reimbursement" is an amount
that when credited against the recipient's actual "unit cost of elec-
tricity" during a quarter (meaning the cost for commodity and delivery
per kilowatt-hour for the quantity of electricity purchased and deliv-
ered under the power for jobs program during a similar period in the
final year of the recipient's contract), results in an effective unit
cost of electricity during the quarter equal to the average unit cost of
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electricity such recipient paid during the final year 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, two thousand [nine] TEN. Notwithstanding any provision of
law to the contrary, and, in particular, the provisions of this chapter
concerning the terms of contracts for allocations under the power for
jobs program, the terms of any contract with a recipient of power allo-
cated 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 effective on the date of such expi-
ration, pending the filing and approval of an application by such recip-
ient 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 author-
ity of the state of New York from a date beginning no earlier than the
first day of December, two thousand four and extending through June
thirtieth, 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
A. 9008 4
application for such reimbursements or extensions. An applicant shall be
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, two thousand [eight] TEN, the board
shall expedite the awarding of such reimbursements 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 recipi-
ent for a period of time beginning December first, two thousand four and
ending June thirtieth, 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.
ANY POWER FOR JOBS ALLOCATION WHICH IS RELINQUISHED OR WITHDRAWN AFTER
THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINE WHICH
AMENDED THIS SUBDIVISION SHALL BE AVAILABLE FOR REALLOCATION TO CUSTOM-
ERS ELIGIBLE FOR POWER FOR JOBS ALLOCATIONS AS DEFINED IN SUBDIVISION
(F) OF THIS SECTION.
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, [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
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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
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
A. 9008 6
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, [2009] 2010.
S 7. Subparagraph 2 of paragraph g of the ninth undesignated paragraph
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
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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
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 THE LESSER OF TWENTY
MILLION DOLLARS OR THE VALUE OF THE CREDITS AUTHORIZED BY SUBDIVISION
NINE OF SECTION ONE HUNDRED EIGHTY-SIX-A OF THE TAX LAW AS CERTIFIED TO
THE COMMISSIONER. 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-NINE million
dollars.
S 8. 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 or repeal of such provisions
and shall be deemed repealed therewith.