Senate Bill S7138

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

                                  7138

                            I N  S E N A T E

                             March 16, 2010
                               ___________

Introduced by Sen. AUBERTINE -- read twice and ordered printed, and when
  printed  to  be  committed to the Committee on Energy and Telecommuni-
  cations

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; to amend 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;  and  to
  amend  the  tax  law,  in  relation to extending the expiration of the
  power for jobs program and the energy cost savings  benefits  program;
  to  amend the economic development law, in relation to the creation of
  the economic development  power  program;  and  to  amend  the  public
  authorities  law,  in  relation to energy audits as a condition for an
  award under the economic development power award

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

  Section 1.  Section 182 of the economic development law, as amended by
chapter 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] NINE members, [two]
ONE OF WHOM SHALL BE THE PRESIDENT OF THE URBAN DEVELOPMENT  CORPORATION
AND  ONE of whom shall be [appointed by the governor and one] THE PRESI-
DENT OF THE NEW YORK STATE ENERGY RESEARCH  AND  DEVELOPMENT  AUTHORITY,
ONE  OF  WHOM SHALL BE THE PRESIDENT OF THE POWER AUTHORITY OF THE STATE
OF NEW YORK, TWO of whom shall be appointed by the speaker of the assem-
bly [and one] , TWO of whom shall be appointed by the  TEMPORARY  presi-
dent  [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

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

                                                           LBD16438-02-0

S. 7138                             2

qualified.  The  chairman  shall  be  [designated  by  the governor from
amongst the members] THE PRESIDENT OF THE URBAN DEVELOPMENT CORPORATION.
[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]  VIDEO-
CONFERENCING  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 offi-
cers of the state, its authorities or agencies shall not receive a sala-
ry  or other compensation, but shall be allowed the necessary and actual
expenses incurred in the performance of duties under this article.
  S 2. Paragraphs 2 and 4 of subdivision  (h)  of  section  183  of  the
economic development law, as amended by chapter 217 of the laws of 2009,
are amended to read as follows:
  2.  During  the period commencing on November first, two thousand five
and ending on [May fifteenth] JUNE THIRTIETH, two thousand [ten]  ELEVEN
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
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 [May fifteenth] JUNE THIRTIETH, two thousand [ten] ELEV-
EN.    Provided, however, that the total amount of megawatts of replace-
ment 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 authori-
ties law. Provided, further, that for any such reallocation, the author-
ity  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  nine  through [May fifteenth] JUNE THIRTIETH, two
thousand [ten] ELEVEN, 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

S. 7138                             3

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.  ANY ENERGY COST SAVINGS BENEFIT WHICH  IS  RELINQUISHED
OR  WITHDRAWN AFTER THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO
THOUSAND TEN WHICH AMENDED THIS PARAGRAPH SHALL BE AVAILABLE FOR REALLO-
CATION TO ELIGIBLE BUSINESSES AS DEFINED IN PARAGRAPH TWO OF THIS SUBDI-
VISION.
  S 3. The opening paragraph  of  paragraph  5  of  subdivision  (a)  of
section  189  of the economic development law, as amended by chapter 217
of the laws of 2009, 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  [May
fifteenth]  JUNE  THIRTIETH,  two  thousand  [ten]  ELEVEN.  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 4. Subdivisions (f) and (l) of section 189 of the economic  develop-
ment  law, as amended by chapter 217 of the laws of 2009, 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

S. 7138                             4

under the fifth phase of the program shall in no case extend beyond [May
fifteenth] JUNE THIRTIETH, two thousand  [ten]  ELEVEN.  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  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 effective 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 earlier than
the first day of December, two thousand four and extending through  [May
fifteenth] JUNE THIRTIETH, two thousand [ten] ELEVEN.
  (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
contract extensions granted on or after  June  thirtieth,  two  thousand
nine  through [May fifteenth] JUNE THIRTIETH, two thousand [ten] ELEVEN,
the board shall expedite the  awarding  of  such  reimbursements  and/or
extensions  and  shall  defer the review of compliance with such commit-
ments until after the applicant has been awarded a power for jobs  elec-
tricity 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 [May fifteenth] JUNE THIRTIETH, two thousand [ten] ELEV-
EN. At no time shall a recipient receive both a reimbursement and exten-
sion 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  RELIN-
QUISHED OR WITHDRAWN AFTER THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS
OF  TWO  THOUSAND  TEN WHICH AMENDED THIS SUBDIVISION SHALL BE AVAILABLE
FOR REALLOCATION TO CUSTOMERS ELIGIBLE FOR POWER FOR JOBS ALLOCATIONS AS
DEFINED IN SUBDIVISION (F) OF THIS SECTION.

S. 7138                             5

  S 5. 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  chapter
217 of the laws of 2009, is amended to read as follows:
  S  9.  This  act shall take effect immediately and shall expire and be
deemed repealed [May 15, 2010] JUNE 30, 2011.
  S 6. Subdivision 9 of section 186-a of the  tax  law,  as  amended  by
chapter 217 of the laws of 2009, 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  [ten]  ELEVEN, any utility which
delivers 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,
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

S. 7138                             6

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  7.  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 chapter 217 of the laws  of  2009,  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 [May
15, 2010] JUNE 30, 2011.
  S 8. Subdivision (b) of section 183 of the economic  development  law,
as  amended  by  chapter  316 of the laws of 1997, is amended to read as
follows:
  (b) To evaluate applications for allocations of  economic  development
power  and  of power under the power for jobs program and to make recom-
mendations with respect to such proposed allocations; PROVIDED  HOWEVER,
THAT  THE  BOARD  SHALL  NOT ACCEPT ANY NEW APPLICATION THAT REQUESTS AN
ALLOCATION OF ECONOMIC DEVELOPMENT POWER OR POWER UNDER  THE  POWER  FOR
JOBS PROGRAM AFTER DECEMBER THIRTY-FIRST, TWO THOUSAND TEN; AND PROVIDED
FURTHER  THAT THE BOARD SHALL NOT EXTEND THE TERM OF ANY CONTRACT FOR AN
ALLOCATION UNDER THE ECONOMIC DEVELOPMENT PROGRAM THAT WILL EXPIRE ON OR
BEFORE JUNE THIRTIETH, TWO THOUSAND ELEVEN FOR THE PURPOSE OF  PROVIDING
AN  ALLOCATION  AFTER  JUNE  THIRTIETH,  TWO  THOUSAND ELEVEN; EXCEPT AS
PROVIDED IN PARAGRAPH (F) OF SUBDIVISION  TWO  OF  SECTION  ONE  HUNDRED
EIGHTY-EIGHT-A OF THIS ARTICLE.
  S  9. Section 183 of the economic development law is amended by adding
a new subdivision (i) to read as follows:
  (I) TO SOLICIT APPLICATIONS FOR  AWARDS  UNDER  THE  ECONOMIC  BENEFIT
POWER  PROGRAM  AND  MAKE  RECOMMENDATIONS TO THE POWER AUTHORITY OF THE
STATE OF NEW YORK FOR AWARDS UNDER SUCH PROGRAM IN THE MANNER AUTHORIZED
IN SECTION ONE HUNDRED EIGHTY-EIGHT-A OF THIS ARTICLE.
  S 10. Subdivision (g) of section 183 of the economic development  law,
as  amended  by  chapter  226 of the laws of 2002, is amended to read as
follows:

S. 7138                             7

  (g) [The] EXCEPT AS OTHERWISE PROVIDED  IN  THIS  SECTION,  THE  board
shall  solicit applications for economic development power and for power
under the power for jobs program by public notice. Such notice shall  be
in  the  form  of  newspaper advertisements, press releases, and by such
other means as the board finds appropriate. Solicitations of preliminary
applications  for  power  under  the  power for jobs program shall begin
promptly after the effective date of chapter three  hundred  sixteen  of
the laws of nineteen hundred ninety-seven establishing such program. The
board  shall solicit applications for the additional three hundred mega-
watts of power available during the  fourth  phase  of  the  program  by
public notice, written notification to each recipient of power allocated
during the first phase of the program, and such other means as the board
finds  appropriate. Solicitations of applications for such three hundred
megawatts of power available in phase four of the  program  shall  begin
promptly  after  the effective date of part KK of chapter sixty-three of
the laws of two thousand making such power available.  The  board  shall
solicit  applications  for the additional one hundred eighty-three mega-
watts of power available during the fifth phase of the program by public
notice, written notification to each recipient of power allocated during
the second and third phases of the program, and by such other  means  as
the  board finds appropriate. Solicitations for such one hundred eighty-
three megawatts of power available in phase five of  the  program  shall
begin  promptly  after  the effective date of the chapter of the laws of
two thousand two making such power available.
  S 11. Section 183 of the economic development law, as added by chapter
32 of the laws of 1987, is amended to read as follows:
  S 183. General powers and duties of the board. In furtherance  of  the
purposes  set  forth in this article, the board shall have the following
powers:
  (a) To adopt, within one hundred twenty days  after  appointment,  AND
AMEND  FROM  TIME  TO TIME, AS NECESSARY, eligibility criteria and rules
and regulations, IN CONSULTATION WITH THE POWER AUTHORITY OF  THE  STATE
OF  NEW  YORK  AND  THE  URBAN  DEVELOPMENT CORPORATION, relating to the
activities of the  board  AS  DESCRIBED  IN  AND  CONSISTENT  WITH  THIS
ARTICLE.
  (b)  To  evaluate applications for allocations of economic development
power and to make recommendations with respect to  such  proposed  allo-
cations,  PROVIDED HOWEVER, THAT THE BOARD SHALL NOT ACCEPT NEW APPLICA-
TIONS OR EXTEND ANY CONTRACTS FOR ALLOCATIONS  OF  ECONOMIC  DEVELOPMENT
POWER TO EXTEND BEYOND JUNE THIRTIETH, TWO THOUSAND ELEVEN.
  (c)  [To evaluate economic development plans for the use of industrial
incentive awards submitted by the power authority of the  state  of  New
York pursuant to this article.
  (d) To provide advice and assistance when appropriate to applicants on
state  economic  development  programs  and  services in addition to the
economic development power and industrial incentive awards  specifically
provided for in this section.]
  TO  SOLICIT  APPLICATIONS  FOR AWARDS UNDER THE ECONOMIC BENEFIT POWER
PROGRAM, AND MAKE RECOMMENDATIONS TO THE POWER AUTHORITY OF THE STATE OF
NEW YORK FOR AWARDS UNDER SUCH  PROGRAM  IN  THE  MANNER  AUTHORIZED  IN
SECTION ONE HUNDRED EIGHTY-EIGHT-A OF THIS ARTICLE.
  (D)  WITH THE ASSISTANCE AND COOPERATION OF THE POWER AUTHORITY OF THE
STATE OF NEW YORK, THE URBAN DEVELOPMENT CORPORATION, AND THE  NEW  YORK
STATE  ENERGY  RESEARCH AND DEVELOPMENT AUTHORITY, TO PROVIDE ADVICE AND
ASSISTANCE TO APPLICANTS WHERE APPROPRIATE, AND TO COORDINATE AND FACIL-
ITATE THE OPPORTUNITY FOR APPLICANTS TO AVAIL THEMSELVES OF ANY STATE OR

S. 7138                             8

LOCAL ECONOMIC DEVELOPMENT PROGRAMS OTHER THAN  THOSE  PROVIDED  FOR  BY
THIS  SECTION, FOR WHICH THEY MAY ALSO BE ELIGIBLE; IN SO DOING TO OPTI-
MIZE, TO THE EXTENT PRACTICABLE, THE USE  OF  AVAILABLE  STATE  ECONOMIC
DEVELOPMENT  RESOURCES  TO ACHIEVE THEIR DEDICATED PURPOSES IN A COORDI-
NATED MANNER, AS WELL AS THE ABILITY OF APPLICANTS TO  INITIALLY  ACCESS
AS  MANY  OF  SUCH PROGRAMS AS POSSIBLE THROUGH A SINGLE STATE OFFICE OR
REPRESENTATIVE AND APPLICATIONS PROCESS.
  (E) The [department, the] power authority of the state  of  New  York,
[the  urban  development  corporation,  and  all  other  state officers,
departments, boards, divisions and commissions] WITH THE  ASSISTANCE  OF
THE  URBAN DEVELOPMENT CORPORATION AND THE DEPARTMENT OF ECONOMIC DEVEL-
OPMENT, shall render such services to the board [within their respective
functions], IN ADDITION TO THOSE PROVIDED FOR IN SUBDIVISION (D) OF THIS
SECTION, as may be requested by the board.  IN ADDITION,  EVERY  AGENCY,
DEPARTMENT,  OFFICE,  DIVISION  OR  PUBLIC AUTHORITY OF THIS STATE SHALL
COOPERATE WITH THE BOARD AND FURNISH SUCH INFORMATION AND ASSISTANCE  AS
THE BOARD DETERMINES IS REASONABLY NECESSARY TO ACCOMPLISH ITS PURPOSE.
  [The  board  shall solicit applications for economic development power
by public notice. Such notice shall be in the form of  newspaper  adver-
tisements,  press  releases,  and by such other means as the board finds
appropriate.]
  S 12. The economic development law is amended by adding a new  section
188-a to read as follows:
  S  188-A.  ECONOMIC  BENEFIT  POWER  PROGRAM.  1. DEFINITIONS. FOR THE
PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE  THE  FOLLOWING
MEANINGS:
  (A)  "APPLICABLE CRITERIA" SHALL MEAN THE CRITERIA SPECIFIED IN SUBDI-
VISION THREE OF THIS SECTION.
  (B) "AUTHORITY" SHALL MEAN THE POWER AUTHORITY OF  THE  STATE  OF  NEW
YORK.
  (C) "ECONOMIC BENEFIT POWER AWARD" OR "AWARD" SHALL MEAN AN ALLOCATION
OF POWER OR AN AWARD PAID BY THE AUTHORITY PURSUANT TO SECTION ONE THOU-
SAND  FIVE OF THE PUBLIC AUTHORITIES LAW IN THE FORM OF AN ELECTRIC BILL
CREDIT ON THE INVOICE PROVIDED BY THE RECIPIENT'S LOCAL  DISTRIBUTOR  OF
ELECTRIC  SERVICE PURSUANT TO THE ECONOMIC BENEFIT POWER PROGRAM CREATED
BY THIS  SECTION  AND/OR  THE  PROVISION  OF  ENERGY  RELATED  PROJECTS,
PROGRAMS  AND  SERVICES AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION ONE
THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW.
  (D) "ELIGIBLE APPLICANT" SHALL MEAN  AN  ELIGIBLE  BUSINESS,  ELIGIBLE
SMALL  BUSINESS,  OR  ELIGIBLE  NOT-FOR-PROFIT CORPORATION AS DEFINED IN
THIS SECTION, PROVIDED HOWEVER, THAT AN  ELIGIBLE  APPLICANT  SHALL  NOT
INCLUDE  RETAIL  BUSINESSES  AS DEFINED BY THE BOARD, INCLUDING, WITHOUT
LIMITATION, SPORTS VENUES, GAMING  OR  ENTERTAINMENT-RELATED  ESTABLISH-
MENTS OR PLACES OF OVERNIGHT ACCOMMODATION.
  (E)   "ELIGIBLE   BUSINESS"   SHALL  MEAN  A  BUSINESS  OTHER  THAN  A
NOT-FOR-PROFIT CORPORATION WHICH NORMALLY UTILIZES A MINIMUM PEAK  ELEC-
TRIC DEMAND IN EXCESS OF FOUR HUNDRED KILOWATTS.
  (F)  "ELIGIBLE SMALL BUSINESS" SHALL MEAN A BUSINESS OTHER THAN A NOT-
FOR-PROFIT CORPORATION WHICH NORMALLY UTILIZES A MINIMUM  PEAK  ELECTRIC
DEMAND EQUAL TO OR LESS THAN FOUR HUNDRED KILOWATTS.
  (G)  "LOCAL  DISTRIBUTOR  OF  ELECTRIC SERVICE" SHALL MEAN AN ELECTRIC
CORPORATION AS DEFINED IN SUBDIVISION THIRTEEN OF  SECTION  TWO  OF  THE
PUBLIC SERVICE LAW OR THE LONG ISLAND POWER AUTHORITY.
  (H)  "ELIGIBLE  NOT-FOR-PROFIT  CORPORATION"  SHALL MEAN A CORPORATION
DEFINED IN SUBDIVISION FIVE OF PARAGRAPH (A) OF SECTION ONE HUNDRED  TWO
OF THE NOT-FOR-PROFIT CORPORATION LAW.

S. 7138                             9

  2.  APPLICATIONS.  (A) THE BOARD SHALL SOLICIT APPLICATIONS FOR AWARDS
UNDER THE ECONOMIC BENEFIT POWER PROGRAM BY PUBLIC NOTICE  BEGINNING  ON
JANUARY  FIRST,  TWO  THOUSAND ELEVEN. SUCH NOTICE MAY INCLUDE NEWSPAPER
ADVERTISEMENTS, PRESS RELEASES, WEBSITE POSTINGS,  PAPER  OR  ELECTRONIC
MAILING,  AND/OR  SUCH  OTHER  FORM  AS  THE  BOARD FINDS APPROPRIATE IN
CONSULTATION WITH THE AUTHORITY.
  (B) APPLICATIONS FOR THE ECONOMIC BENEFIT POWER PROGRAM  SHALL  BE  IN
THE  FORM  AND CONTAIN SUCH INFORMATION, EXHIBITS AND SUPPORTING DATA AS
THE BOARD PRESCRIBES IN CONSULTATION WITH THE AUTHORITY. A COPY OF  EACH
APPLICATION  RECEIVED  SHALL  BE MADE AVAILABLE FOR REVIEW BY EACH BOARD
MEMBER.
  (C) SUBJECT TO CONFIDENTIALITY  REQUIREMENTS,  UPON  RECEIPT  OF  EACH
APPLICATION  BY  THE  AUTHORITY,  THE AUTHORITY SHALL PROMPTLY NOTIFY BY
ELECTRONIC MEANS, INCLUDING WEB SITE POSTINGS AND SUCH OTHER METHODS THE
BOARD DEEMS APPROPRIATE IN CONSULTATION WITH THE AUTHORITY,  THE  GOVER-
NOR,  THE  SPEAKER OF THE ASSEMBLY, THE MINORITY LEADER OF THE ASSEMBLY,
THE TEMPORARY PRESIDENT OF  THE  SENATE,  THE  MINORITY  LEADER  OF  THE
SENATE,  AND  EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY
PORTION OF THE FACILITY OWNED OR OPERATED BY THE APPLICANT  IS  LOCATED.
SUCH  NOTICE  SHALL PROVIDE THE NAME AND A DESCRIPTION OF THE APPLICANT,
AND THE ADDRESS OF THE APPLICANT'S  FACILITIES  THAT  WOULD  RECEIVE  AN
AWARD  UNDER  THE  PROGRAM.  THE  AUTHORITY SHALL ALSO DEVELOP A LISTING
WHICH CONTAINS THE NAME AND A DESCRIPTION OF EACH APPLICANT,  THE  AWARD
SOUGHT  BY  EACH  APPLICANT, AND THE ADDRESS OF THE FACILITIES FOR WHICH
THE APPLICANT SEEKS THE AWARD, AND MAKE THE LISTING AVAILABLE FOR PUBLIC
REVIEW ON THE AUTHORITY'S WEBSITE.
  3. REVIEW, APPLICABLE CRITERIA  AND  RECOMMENDATIONS.  (A)  THE  BOARD
SHALL  REVIEW  APPLICATIONS  SUBMITTED  UNDER THE ECONOMIC BENEFIT POWER
PROGRAM. THE BOARD SHALL MAKE AN INITIAL DETERMINATION  OF  WHETHER  THE
APPLICANT  IS  AN  ELIGIBLE  APPLICANT,  OR  WHETHER A CURRENT APPLICANT
CONTINUES TO BE ELIGIBLE.  THE BOARD MAY RECOMMEND TO THE AUTHORITY THAT
THE ECONOMIC BENEFIT POWER PROGRAM AWARD BE AWARDED TO AN APPLICANT,  OR
THAT  AN EXISTING REWARD BE EXTENDED OR RENEWED, BASED ON AN APPLICATION
OF THE FOLLOWING CRITERIA:
  (I) THE SIGNIFICANCE OF THE COST OF  ELECTRICITY  TO  THE  APPLICANT'S
OVERALL  COST OF DOING BUSINESS, AND THE IMPACT THAT AN ECONOMIC BENEFIT
POWER AWARD WILL HAVE ON THE APPLICANT'S OPERATING COSTS;
  (II) THE EXTENT TO WHICH AN ECONOMIC BENEFIT POWER AWARD  WILL  RESULT
IN  NEW  CAPITAL INVESTMENT IN THE STATE BY THE APPLICANT, THE EXTENT TO
WHICH THE APPLICANT WILL AGREE TO COMMIT TO MAKING NEW  CAPITAL  INVEST-
MENT  AS  A  CONDITION TO RECEIVING AN ECONOMIC BENEFIT POWER AWARD, AND
ANY PREVIOUS CAPITAL INVESTMENT, AT THE LOCATION  OR  ELSEWHERE  IN  THE
STATE, WHETHER UNDERTAKEN BY THE APPLICANT UNDER OTHER ECONOMIC DEVELOP-
MENT PROGRAMS OR OTHERWISE;
  (III)  THE SIZE OF THE APPLICANT'S TOTAL PAYROLL (SALARY, BENEFITS AND
THE NUMBER AND NATURE OF JOBS) AT THE FACILITY THAT  WOULD  RECEIVE  THE
AWARD;
  (IV)  THE  NUMBER  OF JOBS THAT WILL BE CREATED OR RETAINED WITHIN THE
STATE IN RELATION TO THE REQUESTED AWARD, AND THE EXTENT  TO  WHICH  THE
APPLICANT  WILL  AGREE TO COMMIT TO CREATING OR RETAINING SUCH JOBS AS A
CONDITION TO RECEIVING AN ECONOMIC BENEFIT POWER AWARD;
  (V) WHETHER THE APPLICANT, DUE TO THE HIGH COST OF ELECTRICITY, IS  AT
RISK  OF  CLOSING  OR  CURTAILING FACILITIES OR OPERATIONS IN THE STATE,
RELOCATING FACILITIES OR OPERATIONS  OUT  OF  THE  STATE,  OR  LOSING  A
SIGNIFICANT  NUMBER  OF JOBS IN THE STATE, IN THE ABSENCE OF AN ECONOMIC
BENEFIT POWER AWARD;

S. 7138                            10

  (VI) THE SIGNIFICANCE OF THE APPLICANT'S FACILITY THAT  WOULD  RECEIVE
THE BENEFIT OF THE AWARD TO THE ECONOMY OF THE AREA IN WHICH SUCH FACIL-
ITY IS LOCATED OR IN THE STATE AS A WHOLE, INCLUDING THE EXTENT TO WHICH
THE  AWARD  IS  LIKELY TO STIMULATE OR CREATE OTHER ECONOMIC ACTIVITY IN
THE REGION OR STATE;
  (VII)  THE  EXTENT  TO  WHICH  THE APPLICANT HAS PREVIOUSLY UNDERTAKEN
ENERGY AUDITS AND/OR INVESTED IN ENERGY  EFFICIENCY  MEASURES  INCLUDING
CONSIDERATION  OF  THE  TIMING OF SUCH AUDITS OR MEASURES, THE AMOUNT OF
INVESTMENTS IN ENERGY  EFFICIENCY  RELATIVE  TO  THE  SIZE,  NATURE  AND
HISTORIC  ENERGY CONSUMPTION, AND OTHER CAPITAL INVESTMENTS OF THE BUSI-
NESS, THE RELATIVE IMPROVEMENT IN ENERGY EFFICIENCY AND/OR NET ENERGY OR
FINANCIAL SAVINGS  RESULTING  FROM  SUCH  INVESTMENTS,  AND  SUCH  OTHER
FACTORS  AS THE BOARD MAY CONSIDER APPROPRIATE, OR WILL AGREE, IF RECOM-
MENDED BY THE BOARD, TO COMMIT TO MAKING COST EFFECTIVE TANGIBLE INVEST-
MENTS IN ENERGY EFFICIENCY MEASURES;
  (VIII) THE EXTENT TO WHICH THE APPLICANT HAS INVESTED IN ONSITE  POWER
GENERATION  FOR  COMBINED  HEAT  AND POWER AND/OR DISTRIBUTED GENERATION
PURPOSES OR WILL AGREE, IF RECOMMENDED BY THE BOARD  FOR  AN  AWARD,  TO
COMMIT  TO  MAKING  COST  EFFECTIVE TANGIBLE INVESTMENTS IN ONSITE POWER
GENERATION FOR COMBINED HEAT AND  POWER  AND/OR  DISTRIBUTED  GENERATION
PURPOSES  AS IDENTIFIED PURSUANT TO SUBDIVISION SEVENTEEN OF SECTION ONE
THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW AS A CONDITION TO  RECEIVING
AN AWARD;
  (IX)  THE  EXTENT  TO  WHICH THE APPLICANT'S OPERATIONS ARE CONSISTENT
WITH THE POLICIES AND GOALS OF THE STATE ENERGY PLAN;
  (X) THE EXTENT TO WHICH THE  APPLICANT  PREVIOUSLY  RECEIVED  BENEFITS
UNDER OTHER POWER-RELATED PROGRAMS OF THE AUTHORITY, AND THE APPLICANT'S
PRIOR PERFORMANCE UNDER SUCH PROGRAMS WHERE APPLICABLE;
  (XI)  IN THE CASE OF A NOT-FOR-PROFIT CORPORATION, THE EXTENT TO WHICH
IT PROVIDES CRITICAL SERVICES  OR  SUBSTANTIAL  BENEFITS  TO  THE  LOCAL
COMMUNITY;
  (XII)  THE EXTENT TO WHICH AN AWARD IS CONSISTENT WITH STATE, REGIONAL
AND LOCAL ECONOMIC DEVELOPMENT STRATEGIES IN THE AREA IN WHICH THE BUSI-
NESS IS LOCATED OR TO BE LOCATED;
  (XIII) THE EXTENT TO WHICH AN AWARD MIGHT RESULT IN  INEQUITY  FOR  AN
APPLICANT AS COMPARED TO ITS COMPETITORS WITHIN THE STATE; AND
  (XIV) IMPACT OF CURRENT ECONOMIC CONDITIONS ON THE APPLICANT.
  (B)  A  RECOMMENDATION  BY  THE  BOARD  THAT  THE AUTHORITY PROVIDE AN
ECONOMIC BENEFIT POWER PROGRAM AWARD OR THE RENEWAL OR EXTENSION  OF  AN
EXISTING AWARD TO AN ELIGIBLE APPLICANT SHALL INCLUDE: (1) A DESCRIPTION
OF  THE  AWARD  THAT  THE BOARD HAS DETERMINED SHOULD BE AWARDED TO SUCH
APPLICANT, PROVIDED HOWEVER, THAT THE BOARD MAY RECOMMEND AN AWARD  THAT
DIFFERS FROM THE AWARD REQUESTED BY AN ELIGIBLE APPLICANT; (2) AN EFFEC-
TIVE  TERM  OF CONTRACT BETWEEN THE ELIGIBLE APPLICANT AND THE AUTHORITY
WHICH SHALL NOT EXCEED SEVEN YEARS, PROVIDED HOWEVER THAT  THE  TERM  OF
ANY  SUCH  CONTRACT  SHALL  NOT  BECOME EFFECTIVE BEFORE JULY FIRST, TWO
THOUSAND ELEVEN; (3) THE DATE OF THE MANDATORY ANNUAL COMPLIANCE  REVIEW
AT  WHICH  TIME, AND ANNUALLY AT THE SAME TIME EACH YEAR THEREAFTER, THE
ELIGIBLE APPLICANT, IF FOUND IN COMPLIANCE MAY APPLY  FOR  A  SUBSEQUENT
CONTRACT  FOR  AN  ADDITIONAL  TERM OF ONE YEAR TO GO INTO EFFECT AT THE
CONCLUSION OF THE THEN CURRENT CONTRACT AS LONG AS COMPLIANCE  CONTINUES
THROUGH  THE  CONCLUSION  OF SUCH CONTRACT; AND (4) SUCH OTHER TERMS AND
CONDITIONS THAT THE BOARD RECOMMENDS  AS  APPROPRIATE.  SUCH  TERMS  AND
CONDITIONS  SHALL  INCLUDE  PROVISIONS  FOR EFFECTIVE PERIODIC AUDITS OF
PROGRAM PARTICIPANTS FOR THE PURPOSE OF DETERMINING CONTRACT AND PROGRAM
COMPLIANCE, AND THE PARTIAL OR COMPLETE WITHDRAWAL OF AN ECONOMIC  BENE-

S. 7138                            11

FIT  POWER PROGRAM AWARD IN THE CASE OF A PROGRAM PARTICIPANT THAT FAILS
TO MAINTAIN MUTUALLY AGREED UPON COMMITMENTS, INCLUDING BUT NOT  LIMITED
TO  LEVELS  OF  EMPLOYMENT,  POWER UTILIZATION, CAPITAL INVESTMENTS, AND
ENERGY EFFICIENCY MEASURES.
  (C) THE BOARD MAY BASE ITS RECOMMENDATION ON WHICH ELIGIBLE APPLICANTS
IT  DETERMINES  BEST MEET THE APPLICABLE CRITERIA; PROVIDED HOWEVER THAT
THE BOARD SHALL SET ASIDE A PORTION OF THE BENEFITS AVAILABLE UNDER  THE
ECONOMIC  BENEFIT  POWER  PROGRAM IN AN AMOUNT NOT LESS THAN ONE HUNDRED
MEGAWATTS FOR ELIGIBLE  SMALL  BUSINESSES  AND  ELIGIBLE  NOT-FOR-PROFIT
CORPORATIONS;  AND  PROVIDED  FURTHER  THAT  THE BOARD SHALL SET ASIDE A
PORTION OF THE BENEFITS AVAILABLE UNDER THE PROGRAM  IN  AN  AMOUNT  NOT
LESS  THAN  ONE HUNDRED MEGAWATTS FOR ELIGIBLE HIGH LOAD FACTOR MANUFAC-
TURERS AS DEFINED IN THE FOURTH UNDESIGNATED PARAGRAPH  OF  SECTION  ONE
THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW.
  (D) A RECOMMENDATION FOR AN ECONOMIC BENEFIT POWER PROGRAM AWARD SHALL
QUALIFY  AN  APPLICANT  TO  ENTER INTO A CONTRACT, WITH THE AUTHORITY TO
RECEIVE SUCH AWARD FROM THE AUTHORITY PURSUANT TO THE TERMS  AND  CONDI-
TIONS  OF  THE  RECOMMENDATION  OR  ON SUCH OTHER TERMS AS THE AUTHORITY
DETERMINES TO BE APPROPRIATE.  IN THE EVENT THAT THE AWARD INCLUDES  THE
PROVISION  OF  ENERGY RELATED PROJECTS, PROGRAMS AND SERVICES AS DEFINED
IN SUBDIVISION SIXTEEN OF  SECTION  ONE  THOUSAND  FIVE  OF  THE  PUBLIC
AUTHORITIES LAW, THE CONTRACT SHALL ALLOW FOR REIMBURSEMENT FOR COSTS TO
AN  ENTITY  OTHER  THAN  THE POWER AUTHORITY OF THE STATE OF NEW YORK SO
LONG AS  SUCH  COSTS  ARE  DEEMED  REASONABLE  AND  APPROPRIATE.    SUCH
CONTRACTS  SHALL  PROVIDE THAT THE LOCAL DISTRIBUTOR OF ELECTRIC SERVICE
WILL PROVIDE CUSTOMER AND BILLING SERVICES UPON  MUTUALLY  AGREED  TERMS
AND CONDITIONS.
  (E) UPON APPROVAL OR DENIAL OF ANY APPLICATION FOR AN ECONOMIC BENEFIT
POWER PROGRAM AWARD, THE BOARD SHALL ISSUE IN WRITING A STATEMENT OF ITS
FINDINGS  AND  CONCLUSIONS  WITH  RESPECT  TO  SUCH  APPLICATION AND THE
REASONS FOR ITS APPROVAL OR DENIAL.
  (F) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, WITH  RESPECT
TO  APPLICANTS  WHO  ARE  IN SUBSTANTIAL COMPLIANCE WITH ALL CONTRACTUAL
COMMITMENTS AND, AS DETERMINED BY THE BOARD,  RECEIVING  BENEFITS  UNDER
THE  POWER  FOR JOBS, ENERGY COST SAVINGS BENEFIT, ECONOMIC DEVELOPMENT,
HIGH LOAD FACTOR OR MUNICIPAL DISTRIBUTION AGENCY  PROGRAMS,  THE  BOARD
SHALL RECOMMEND AND THE AUTHORITY SHALL PROVIDE AN AWARD OF THE ECONOMIC
BENEFIT POWER PROGRAM WHICH SHALL BE EQUAL TO THE GREATER OF SUCH AMOUNT
AS  THE BOARD MAY DETERMINE THE APPLICANT WOULD OTHERWISE BE ELIGIBLE TO
RECEIVE, PURSUANT TO AN APPLICATION, UNDER THE  ECONOMIC  BENEFIT  POWER
PROGRAM OR (I) FOR THE PERIOD COMMENCING JULY FIRST, TWO THOUSAND ELEVEN
AND  ENDING JUNE THIRTIETH, TWO THOUSAND THIRTEEN AN ANNUAL AMOUNT EQUAL
TO ONE HUNDRED PERCENT OF THE VALUE OF SUCH EXISTING  BENEFITS  RECEIVED
IN  THE  PRECEDING  TWELVE  MONTHS,  (II) FOR THE PERIOD COMMENCING JULY
FIRST, TWO THOUSAND THIRTEEN AND ENDING  JUNE  THIRTIETH,  TWO  THOUSAND
FOURTEEN  AN  AMOUNT  EQUAL  TO  SIXTY-SIX  PERCENT OF THE VALUE OF SUCH
EXISTING BENEFITS, AND (III) FOR THE PERIOD COMMENCING JULY  FIRST,  TWO
THOUSAND  FOURTEEN  AND  ENDING  JUNE THIRTIETH, TWO THOUSAND FIFTEEN AN
AMOUNT EQUAL TO THE VALUE OF THIRTY-THREE PERCENT OF SUCH EXISTING BENE-
FIT.  THEREAFTER SUCH APPLICANTS SHALL BE ELIGIBLE FOR ONLY SUCH  AWARDS
UNDER  THE  ECONOMIC  BENEFIT POWER PROGRAM AS THE BOARD SHALL RECOMMEND
PURSUANT TO THE PROVISIONS OF THIS SECTION.   SUCH  APPLICANT  SHALL  BE
REQUIRED  TO  REAPPLY  FOR  AN  AWARD  UNDER  THE ECONOMIC BENEFIT POWER
PROGRAM DURING THE TERM OF SUCH AWARD.
  (G) SUBJECT TO THE THIRTEENTH UNDESIGNATED PARAGRAPH  OF  SECTION  ONE
THOUSAND  FIVE OF THE PUBLIC AUTHORITIES LAW, AS ADDED BY THE CHAPTER OF

S. 7138                            12

THE LAWS OF TWO THOUSAND TEN THAT ADDED THIS SECTION,  THE  BOARD  SHALL
NOT  RECOMMEND  ECONOMIC BENEFIT POWER PROGRAM AWARDS UNDER THE ECONOMIC
BENEFIT POWER PROGRAM IN EXCESS OF NINE HUNDRED FIFTY MEGAWATTS OF ELEC-
TRICITY, UNTIL JANUARY FIRST, TWO THOUSAND FOURTEEN, WHEN UPON SUCH DATE
SUCH AMOUNT MAY NOT EXCEED ONE THOUSAND ONE HUNDRED MEGAWATTS OF ECONOM-
IC  DEVELOPMENT  POWER PROGRAM AWARDS.  ANY ECONOMIC BENEFIT POWER AWARD
OR PORTION THEREOF WHICH IS RELINQUISHED OR WITHDRAWN SHALL BE AVAILABLE
FOR REALLOCATION TO  ELIGIBLE  APPLICANTS;  PROVIDED  HOWEVER,  THAT  IN
MAKING  ANY  SUCH REALLOCATION OF AN ECONOMIC BENEFIT POWER AWARD RELIN-
QUISHED BY OR WITHDRAWN FROM A RECIPIENT LOCATED WITHIN  THE  REGION  OF
THE  STATE  WITHIN  THIRTY MILES OF THE AUTHORITY'S NIAGARA PROJECT, OR,
LOCATED WITHIN THE REGION COMPRISED OF THE COUNTIES  OF  JEFFERSON,  ST.
LAWRENCE AND FRANKLIN, THE BOARD SHALL, FOR A PERIOD OF SIX MONTHS AFTER
SUCH  RELINQUISHMENT  OR WITHDRAWAL, GIVE PREFERENCE TO QUALIFIED APPLI-
CANTS LOCATED IN THE SAME SUCH REGION WHEREIN THE PREVIOUS AWARD RECIPI-
ENT WAS LOCATED, AND FURTHER PROVIDED THAT IF  SUCH  AWARD  REALLOCATION
CANNOT  BE MADE TO APPLICANTS LOCATED WITHIN SUCH REGION WITHIN SUCH SIX
MONTH PERIOD IT SHALL BE  REALLOCATED  BY  THE  BOARD  PURSUANT  TO  THE
PROVISIONS  OF  THE ECONOMIC BENEFIT POWER PROGRAM AS OTHERWISE PROVIDED
FOR BY THIS SECTION.
  (H) (1) THE BOARD SHALL SUBMIT TO THE  DIRECTOR  OF  THE  BUDGET,  THE
CHAIRPERSON  OF  THE SENATE FINANCE COMMITTEE AND THE CHAIRPERSON OF THE
ASSEMBLY WAYS AND MEANS COMMITTEE AN EVALUATION OF THE SUCCESS  OF  EACH
ECONOMIC  DEVELOPMENT  POWER PROGRAM IT ADMINISTERS PREPARED BY AN INDE-
PENDENT  THIRD  PARTY.  SUCH  EVALUATION  SHALL  DETERMINE  WHETHER  THE
SERVICES  PROVIDED HAVE HELPED RECIPIENTS TO SUCCEED, BASED ON A COMPAR-
ISON OF THE PERFORMANCE OF THE RECIPIENTS AGAINST  THE  NORMS  OF  THEIR
SPECIFIC  INDUSTRY,  AND SHALL ASSESS THE EFFECTIVENESS, IF ANY, OF EACH
ECONOMIC DEVELOPMENT POWER PROGRAM. SUCH AN EVALUATION SHALL BE  SUBMIT-
TED  BY  DECEMBER  THIRTY-FIRST,  TWO  THOUSAND FOURTEEN AND BY DECEMBER
THIRTY-FIRST EVERY FIVE YEARS THEREAFTER.
  (2) BETWEEN EVALUATION DUE DATES, THE BOARD SHALL MAINTAIN THE  NECES-
SARY  RECORDS  AND DATA REQUIRED TO SATISFY SUCH EVALUATION REQUIREMENTS
AND TO SATISFY INFORMATION REQUESTS RECEIVED FROM THE  DIRECTOR  OF  THE
BUDGET,  THE  CHAIRPERSON OF THE SENATE FINANCE COMMITTEE AND THE CHAIR-
PERSON OF THE ASSEMBLY WAYS AND MEANS COMMITTEE BETWEEN SUCH  EVALUATION
DUE DATES.
  S  13. Subdivision 5 of section 1005 of the public authorities law, as
amended by chapter 294 of the laws of 1968, paragraph g  as  amended  by
chapter 369 of the laws of 1974, is amended to read as follows:
  5. To develop, maintain, manage and operate those parts of the Niagara
and  Saint  Lawrence hydroelectric projects owned or controlled by it in
such manner as to give effect to the policy  hereby  declared  (and  all
plans  and  acts,  and all contracts for the use, sale, transmission and
distribution of the power generated by such projects, shall be  made  in
the  light of, consistent with and subject to this policy), namely, that
such projects shall be in all respects for  the  aid,  improvement,  and
benefit  of  commerce  and  navigation  in,  through, along and past the
Niagara river, the Saint Lawrence river  and  the  international  rapids
section  thereof,  and  that  in the development of hydro-electric power
therefrom such projects shall be considered primarily as for the benefit
of the people of the state as a whole and particularly the domestic  and
rural  consumers  to  whom the power can economically be made available,
and accordingly that sale to and use by industry shall  be  a  secondary
purpose  UNTIL  JULY  FIRST, TWO THOUSAND ELEVEN, AT WHICH TIME THE SALE
AND USE BY INDUSTRY SHALL BECOME A PRIMARY PURPOSE, to be utilized prin-

S. 7138                            13

cipally [to secure a sufficiently high load factor and  revenue  returns
to  permit  domestic  and rural use at the lowest possible rates and] in
such manner as to encourage  [increased  domestic  and  rural]  ECONOMIC
DEVELOPMENT AND THE EFFICIENT use of electricity. In furtherance of this
policy  and  to secure a wider distribution of such power and use of the
greatest value to the general public of the state, the  authority  shall
in  addition  to  other  methods  which  it  may  find advantageous make
provision so that municipalities  and  other  political  [sub-divisions]
SUBDIVISIONS  of  the state now or hereafter authorized by law to engage
in the distribution of electric power may secure a reasonable  share  of
the  power  generated by such projects, and shall sell the same or cause
the same to be sold to such municipalities and political subdivisions at
prices representing cost  of  generation,  plus  capital  and  operating
charges,  plus  a  fair  cost  of transmission, all as determined by the
trustees, and subject to conditions which shall  assure  the  resale  of
such power to domestic and rural consumers at the lowest possible price,
provided, however, that in disposing of hydro-electric power pursuant to
and  in furtherance of the aforementioned policy and purposes, appropri-
ate provision may also be made to allocate a reasonable share of project
power to agencies created or designated by other states  and  authorized
to  resell  the  power  to  users under the same terms and conditions as
power is disposed of in New York state. To that end, the  authority  may
provide  in  any  contract  or contracts which it may make for the sale,
transmission and distribution of the power that the purchaser, transmit-
ter or distributor shall construct, maintain and operate, on such  terms
as the authority may deem proper, such connecting lines as may be neces-
sary  for transmission of the power from main transmission lines to such
municipalities or political subdivisions.
  Contracts for the sale, transmission and distribution of power  gener-
ated  by such projects shall provide for the effectuation of the forego-
ing policy and shall provide:
  a. Payment of all operating and maintenance expenses of the project.
  b. Interest on and amortization and reserve charges sufficient  within
fifty  years  of  the  date of issuance to retire the bonds of the power
authority issued for the project.
  c. Continuous control and operation of the project by the authority.
  d. The effectuation of the policy  declared  in  this  [sub-paragraph]
SUBPARAGRAPH.
  e.  Full  and  complete  disclosure to the authority of all factors of
cost in the transmission and distribution of power,  so  that  rates  to
consumers  may  be  fixed  initially in the contract and may be adjusted
from time to time on the basis of  true  cost  data,  provided  that  in
fixing  such  cost  of transmission and distribution no account shall be
given to any franchise value, going value or good-will  based  upon  the
existence  of the contract and the availability of the power for sale by
the transmitting or distributing company or any company associated ther-
ewith.
  f. Periodic revisions of the service and rates  to  consumers  on  the
basis  of  accurate  cost  data  obtained by such accounting methods and
systems as shall be approved by the  trustees  and  in  furtherance  and
effectuation   of   the   policy   declared   in   this  [sub-paragraph]
SUBPARAGRAPH.
  g. That the rates, services and practices of the purchasing, transmit-
ting and/or distributing public agencies or companies in respect to  the
power generated by such projects shall be governed by the provisions and
principles  established  in  the contract, and not by regulations of the

S. 7138                            14

public service commission or by general principles of public service law
regulating rates, services and practices and that in the event any  such
public  agencies  or  companies  which purchase power from the authority
shall sell any such power for resale, such sale for resale shall be made
at  rates no higher than those at which the power was purchased from the
authority.
  h. The rate structures  agreed  upon  in  such  contract  may  provide
different  rates  for  different  localities,  classes of consumers, and
amounts of current consumed, and for changes in the rates resulting from
variation in operating costs and fixed charges.
  i. For the cancellation and termination  of  any  such  contract  upon
violation  of  the  terms  thereof  by  the  purchasing, transmitting or
distributing public agency or company, or any  subsidiary  or  associate
thereof.
  j. For such security for performance as the authority may deem practi-
cable  and  advisable,  including provisions assuring the continuance of
service by the purchasing, transmitting and/or distributing public agen-
cies or companies and/or the use of their facilities  for  such  service
and/or  the  continuance  of an outlet and adequate market for the power
generated by such projects.
  k. CONTRACTS FOR ALLOCATIONS OF PROJECT  HYDROELECTRIC  POWER  BETWEEN
THE  AUTHORITY AND COMPANIES ENGAGED IN THE TRANSMISSION AND/OR DISTRIB-
UTION OF ELECTRICITY IN THE STATE ENTERED INTO PRIOR TO JULY FIRST,  TWO
THOUSAND ELEVEN IN FURTHERANCE OF THE POLICIES AND PURPOSES CONTAINED IN
THIS SUBDIVISION SHALL, AFTER THE EXPIRATION OF SUCH CONTRACTS AND FOR A
PERIOD  OF  TIME BETWEEN JULY FIRST, TWO THOUSAND ELEVEN AND JULY FIRST,
TWO THOUSAND TWELVE, AND SIMILARLY FOR EACH TWELVE MONTH  PERIOD  THERE-
AFTER  THROUGH  JULY  FIRST,  TWO  THOUSAND SIXTEEN, ONLY BE RENEWED FOR
ALLOCATIONS OF POWER THAT SHALL BE TWENTY PERCENT LESS THAN  THE  AMOUNT
OF POWER MADE AVAILABLE PURSUANT TO SUCH CONTRACTS AS EXISTED DURING THE
IMMEDIATELY  PRECEDING  TWELVE  MONTH PERIOD; PROVIDED HOWEVER, THAT THE
FOREGOING NOTWITHSTANDING, IN ALLOCATING HYDROELECTRIC POWER IN FURTHER-
ANCE OF THE POLICIES AND PURPOSES OF THIS SUBDIVISION,  PROVISION  SHALL
BE  MADE  TO  ALLOCATE  SUCH SHARE OF PROJECT POWER TO SUCH TRANSMISSION
AND/OR DISTRIBUTION COMPANIES AS  IS  DETERMINED  NECESSARY  TO  PROVIDE
THEIR  CUSTOMERS  WHO  ARE  RECIPIENTS OF BENEFITS UNDER THE FEDERAL LOW
INCOME HOME ENERGY ASSISTANCE PROGRAM WITH AT LEAST THE  SAME  LEVEL  OF
COMMODITY  PRICE  MITIGATION  AS  SUCH CUSTOMERS RECEIVED AS A RESULT OF
ALLOCATIONS OF PROJECT POWER TO SUCH COMPANY PURSUANT TO  THIS  SUBDIVI-
SION  IN THE TWELVE MONTH PERIOD PRIOR TO JULY FIRST, TWO THOUSAND ELEV-
EN.
  L. Such other terms not inconsistent with the provisions and policy of
this title as the authority may deem advisable.
  S 14. Section 1005 of the public authorities law is amended by  adding
a  new  thirteenth  and  fourteenth  undesignated  paragraph  to read as
follows:
  BEGINNING NO LATER THAN JULY FIRST, TWO THOUSAND ELEVEN, THE AUTHORITY
IS AUTHORIZED AND DIRECTED, AS DEEMED  FEASIBLE  AND  ADVISABLE  BY  THE
TRUSTEES,  TO  MAKE  ANNUAL  PAYMENTS IN AN AMOUNT OF ONE HUNDRED TWENTY
MILLION DOLLARS FOR UP TO NINE HUNDRED FIFTY MEGAWATTS OF ECONOMIC BENE-
FIT POWER PROGRAM AWARDS UPON THE RECOMMENDATION OF THE ECONOMIC  DEVEL-
OPMENT  POWER  ALLOCATION BOARD UNDER THE ECONOMIC BENEFIT POWER PROGRAM
AS PROVIDED IN SECTION ONE HUNDRED EIGHTY-EIGHT-A OF THE ECONOMIC DEVEL-
OPMENT LAW. NOT LESS OFTEN THAN ANNUALLY, THE AUTHORITY  SHALL  IDENTIFY
AND ADVISE THE ECONOMIC DEVELOPMENT POWER ALLOCATION BOARD OF THE AVAIL-
ABILITY OF THE FUNDS FOR SUCH AWARD.

S. 7138                            15

  BEGINNING  NO  LATER  THAN  JANUARY  FIRST, TWO THOUSAND FOURTEEN, THE
AUTHORITY IS AUTHORIZED AND DIRECTED, AS DEEMED FEASIBLE  AND  ADVISABLE
BY  THE TRUSTEES, TO MAKE ANNUAL PAYMENTS IN AN AMOUNT UP TO ONE HUNDRED
TWENTY MILLION DOLLARS FOR UP TO ONE THOUSAND ONE HUNDRED  MEGAWATTS  OF
ELECTRICITY COST AWARDS UPON THE RECOMMENDATION OF THE ECONOMIC DEVELOP-
MENT  POWER ALLOCATION BOARD UNDER THE ECONOMIC BENEFIT POWER PROGRAM AS
PROVIDED IN SECTION ONE HUNDRED EIGHTY-EIGHT-A OF THE ECONOMIC  DEVELOP-
MENT LAW. NOT LESS OFTEN THAN ANNUALLY, THE AUTHORITY SHALL IDENTIFY AND
ADVISE THE ECONOMIC DEVELOPMENT POWER ALLOCATION BOARD OF THE AVAILABIL-
ITY OF THE FUNDS FOR SUCH AWARD.
  S  15. Section 1005 of the public authorities law is amended by adding
two new subdivisions 17 and 18 to read as follows:
  17. 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 FOR THOSE APPLICANTS THAT THE BOARD HAS  DETER-
MINED  WOULD  BENEFIT  FROM AND WOULD BE ELIGIBLE TO RECEIVE AN ECONOMIC
BENEFIT POWER AWARD. THE AUDITS SHALL ASSESS (I) A RECIPIENT'S ELECTRIC-
ITY USE TO DETERMINE BASED ON A COMPARISON OF THE NORMS OF THEIR SPECIF-
IC INDUSTRY, COST-EFFECTIVE MEASURES THAT COULD BE  EMPLOYED  TO  REDUCE
ENERGY COSTS, ENERGY USE, OR IMPROVE THE EFFICIENCY OF BUILDINGS, BUILD-
ING  SYSTEMS, EQUIPMENT, PROCESSES OR OPERATIONS; AND (II) THE FEASIBIL-
ITY OF ONSITE POWER  GENERATION  FOR  COMBINED  HEAT  AND  POWER  AND/OR
DISTRIBUTED GENERATION PURPOSES.  APPLICANTS' ENERGY AUDITS PERFORMED UP
TO FIVE YEARS PRIOR TO THE DATE OF APPLICATION SUBMISSION MAY BE CONSID-
ERED  BY  THE  BOARD  IN MAKING ITS DETERMINATION.   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 DIRECTLY.
  18.  A. FOR THE PURPOSE OF FURNISHING THE STATE WITH SYSTEMATIC INFOR-
MATION REGARDING THE STATUS AND THE ACTIVITIES  OF  THE  AUTHORITY,  THE
AUTHORITY  SHALL  SUBMIT  TO THE GOVERNOR, THE CHAIRPERSON OF THE SENATE
FINANCE COMMITTEE, THE  CHAIRPERSON  OF  THE  ASSEMBLY  WAYS  AND  MEANS
COMMITTEE AND THE STATE COMPTROLLER, WITHIN NINETY DAYS AFTER THE END OF
ITS  FISCAL YEAR, A COMPLETE AND DETAILED ANNUAL REPORT ON EACH ECONOMIC
DEVELOPMENT POWER PROGRAM  IT  ADMINISTERS.  SUCH  ANNUAL  REPORT  SHALL
INCLUDE, BUT NOT BE LIMITED TO, THE FOLLOWING INFORMATION:
  (I)  THE  NUMBER OF COMMERCIAL/INDUSTRIAL RECIPIENTS OF ECONOMIC POWER
PROGRAM BENEFITS, WHERE THE ECONOMIC REGION CLIENT IS LOCATED, WHAT TYPE
AND HOW MUCH ASSISTANCE IS PROVIDED, MEGAWATTS OF  ELECTRICITY  AWARDED,
LENGTH  OF  CURRENT  CONTRACT,  CURRENT CONTRACT COMPLIANCE STATUS, LAST
AUDIT, NUMBER OF JOBS RETAINED AND/OR ADDED IN THE FISCAL YEAR, APPROXI-
MATE ENERGY EFFICIENCY SAVINGS AND  AMOUNT  OF  POWER  REALLOCATED  FROM
PREVIOUS YEARS DUE TO FORFEITED BENEFITS;
  (II)  COST  TO  THE  AUTHORITY  TO  PROVIDE ECONOMIC DEVELOPMENT POWER
PROGRAMS DURING THE PREVIOUS FISCAL YEAR; AND
  (III) SOURCES, TYPES AND COSTS OF POWER  OBTAINED  FOR  EACH  ECONOMIC
DEVELOPMENT POWER PROGRAM IT ADMINISTERS, INCLUDING, BUT NOT LIMITED TO,
AN EXPLANATION OF HOW POWER IS OBTAINED BY THE AUTHORITY TO SUPPORT EACH
ECONOMIC  DEVELOPMENT  POWER  PROGRAM  IT ADMINISTERS, THE PERCENTAGE OF
LONG- AND SHORT-TERM POWER PURCHASE AGREEMENTS USED  AND  DAY-AHEAD  AND
SPOT MARKET PURCHASES, AND SUMMARY OF NEW YORK INDEPENDENT SYSTEM OPERA-
TOR (NYISO) CHARGES PAID BY AUTHORITY CUSTOMERS.

S. 7138                            16

  B.  THE  COMPTROLLER  SHALL  BE  CHARGED  WITH SEEING THAT THE REPORTS
MANDATED IN THIS SUBDIVISION ARE FILED ON TIME AND THAT THEY ARE  SUFFI-
CIENTLY  COMPREHENSIVE. THE COMPTROLLER SHALL REPORT ANY DEFICIENCIES TO
THE GOVERNOR AND TO THE LEGISLATIVE CHAIRS NAMED IN SUBDIVISION  ONE  OF
THIS SECTION.
  S  16. 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 17. This act shall take effect immediately; provided that the amend-
ments  to  section  183 of the economic development law made by sections
two, eight, nine and ten of this act shall be subject to the  expiration
and  reversion  of  such section pursuant to section 9 of chapter 316 of
the laws of 1997, as amended, when upon  such  date  the  provisions  of
section  eleven  of  this act shall take effect; provided, further, that
the amendments to section 189 of the economic development  law  made  by
sections  three and four of this act shall not affect the repeal of such
section and shall be deemed repealed therewith;  and  provided,  further
that  the  amendments  to  subdivision 9 of section 186-a of the tax law
made by section six of this act shall not  affect  the  repeal  of  such
subdivision and shall be deemed repealed therewith.