S. 5979 2
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savings benefits, are not relinquished by or withdrawn from a recipient
shall be deemed to be relinquished or withdrawn for purposes of offering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
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:
S. 5979 3
(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
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
S. 5979 4
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
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,
S. 5979 5
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.
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-
S. 5979 6
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
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
S. 5979 7
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 182 of the economic development law, as amended by chap-
ter 289 of the laws of 2000, is amended to read as follows:
S 182. The New York state economic development power allocation board.
There is hereby created a New York state economic development power
allocation board, which shall possess the powers and duties herein spec-
ified and all the powers necessary or proper to carry out the purposes
of this article. The board shall consist of [four] EIGHT members, two of
whom shall be appointed by the governor [and one], TWO of whom shall be
appointed by the speaker of the assembly [and one], TWO of whom shall be
appointed by the president pro tempore of the senate, ONE OF WHOM SHALL
BE APPOINTED BY THE MINORITY LEADER OF THE ASSEMBLY AND ONE OF WHOM
SHALL BE APPOINTED BY THE MINORITY LEADER OF THE SENATE. Each member
shall be appointed for terms of three years or until a successor shall
have been named and qualified. The chairman shall be designated by the
governor from amongst the members. [Three] FIVE members shall constitute
a quorum for the purposes of organizing the board and conducting the
business thereof; and no actions of the board may be taken except upon
the affirmative vote of at least [three] FIVE members. Videoconferencing
may be used for attendance and participation by members of the board. If
videoconferencing is used the board shall provide an opportunity for the
public to attend, listen and observe at any site at which a member
participates. The public notice for the meeting shall inform the public
that [vidioconferencing] VIDEOCONFERENCING will be used, identify the
locations for the meeting, and state that the public has the right to
attend the meeting at any of the locations. Members of the board, except
those who are employees or officers of the state, its authorities or
agencies shall not receive a salary or other compensation, but shall be
allowed the necessary and actual expenses incurred in the performance of
duties under this article.
S 9. Section 1005 of the public authorities law is amended by adding a
new subdivision 16 to read as follows:
16. THE AUTHORITY SHALL CREATE AN ENERGY AUDIT PROGRAM FOR THE RECIPI-
ENTS OF THE AUTHORITY'S LOW COST POWER PROGRAMS.
A. TO ENSURE THE MOST JUDICIAL AND PRUDENT USE OF ENERGY RESOURCES, A
REQUIREMENT FOR ONGOING PARTICIPATION IN ECONOMIC DEVELOPMENT POWER,
EXPANSION POWER, REPLACEMENT POWER, PRESERVATION POWER, HIGH LOAD FACTOR
POWER, MUNICIPAL DISTRIBUTION AGENCY POWER AND THE POWER FOR JOBS
PROGRAMS, RECIPIENTS OF BENEFITS UNDER SUCH PROGRAMS SHALL UNDERGO ENER-
GY AUDITS AS DESCRIBED IN PARAGRAPH B OF THIS SUBDIVISION.
B. THE AUTHORITY SHALL PERFORM OR CAUSE TO BE PERFORMED ENERGY AUDITS
FOR ALL RECIPIENTS OF ECONOMIC DEVELOPMENT POWER, EXPANSION POWER,
REPLACEMENT POWER, PRESERVATION POWER, HIGH LOAD FACTOR POWER, MUNICIPAL
DISTRIBUTION AGENCY POWER AND POWER UNDER THE POWER FOR JOBS PROGRAMS.
THE AUDITS SHALL ASSESS A RECIPIENT'S ELECTRICITY USE TO DETERMINE (I)
POSSIBLE ENERGY CONSERVATION AND EFFICIENCY MEASURES THAT MAY BE
INSTALLED AND (II) THE FEASIBILITY OF ONSITE POWER GENERATION FOR
COMBINED HEAT AND POWER AND/OR DISTRIBUTED GENERATION PURPOSES. THE
AUTHORITY SHALL CONDUCT THE AUDITS IN A MANNER THAT WILL PROVIDE FOR A
REPRESENTATIVE SAMPLE OF THE PROGRAM RECIPIENTS, AS CATEGORIZED BY THE
S. 5979 8
PROGRAM OF ENROLLMENT, TYPE OF BUSINESS, GEOGRAPHY FOR STATEWIDE
PROGRAMS AND ALLOCATION SIZE. RECIPIENTS THAT HAVE HAD AN ENERGY AUDIT
PERFORMED UP TO FIVE YEARS PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION MAY BE CONSIDERED TO HAVE SATISFIED THE REQUIREMENTS OF THIS SUBDI-
VISION, IF THE AUTHORITY FINDS THE AUDIT TO BE SUFFICIENT. COSTS ASSO-
CIATED WITH PERFORMING ENERGY AUDITS SHALL BE PAID BY THE POWER
AUTHORITY OF THE STATE OF NEW YORK AS DEEMED FEASIBLE AND ADVISABLE BY
THE BOARD.
C. THE AUTHORITY SHALL COMPLETE AND SUBMIT AN ANNUAL PROGRESS REPORT
ON THE ENERGY AUDIT PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEM-
BLY, 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 THIRTIETH, TWO THOUSAND NINE AND ON SUCH DATE EVERY YEAR HERE-
AFTER UNTIL ALL RECIPIENTS HAVE COMPLETED THE AUDIT PROGRAM.
S 10. (a) The department of economic development and the power author-
ity of the state of New York 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. Information 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;
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 for each recipient's allocation;
vi. the metric for calculating the annualized retail value;
vii. the original employment commitment from each recipient;
viii. the current employment level for each recipient; and
ix. an assessment by the department of economic development 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.
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 September 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
and, except for the program's summaries, the report's information shall
be presented in a spreadsheet format.
S. 5979 9
(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 September 30, 2009.
(c) The power authority of the state of New York shall submit a report
or reports detailing in full the energy procurement practices, including
all supply side and demand side activities, the authority uses to meet
the capacity and needs of their customers, and a complete and detailed
report or reports on the authority's commodity pricing practices. The
report shall be submitted 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
September 30, 2009.
S 11. 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 12. 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.
