LBD15451-01-6
S. 9915 2
the Clean Energy Fund, Public Service Commission siting authority, and
tax incentives under the real property tax law, possesses the authority
to condition the receipt of such assistance upon compliance with work-
force reliability standards, consistent with the market participant
doctrine established in Building and Construction Trades Council v.
Associated Builders and Contractors of Massachusetts/Rhode Island, Inc.,
507 U.S. 218 (1993), and White v. Massachusetts Council of Construction
Employers, Inc., 460 U.S. 204 (1983), without infringing upon the
National Labor Relations Act, 29 U.S.C. § 151 et seq., the state acting
in its capacity as a market participant and benefits grantor and not as
a regulator of the labor-management relationship; and
(e) It is the policy of the state that labor protections shall follow
the asset from construction through the operational life of the facili-
ty; that BESS O&M employment shall be subject to workforce reliability
standards ensuring safety, continuity, and quality; and that the state's
market participant authority shall be exercised through conditions on
the receipt of public financial assistance, not as a condition upon the
right to operate.
§ 2. Section 66-r of the public service law is amended by adding thir-
teen new subdivisions 1-b, 1-c, 1-d, 1-e, 1-f, 4-a, 4-b, 4-c, 4-d, 4-e,
4-f, 4-g, and 4-h to read as follows:
1-B. "BATTERY ENERGY STORAGE SYSTEM" OR "BESS" SHALL MEAN ANY ELECTRIC
ENERGY STORAGE FACILITY, INCLUDING LITHIUM-ION, NON-LITHIUM, AND FLOW
BATTERY TECHNOLOGIES, THAT: (I) HAS A NAMEPLATE CAPACITY OF ONE MEGAWATT
(MW) ALTERNATING CURRENT OR GREATER; (II) IS CONNECTED TO THE TRANS-
MISSION OR DISTRIBUTION SYSTEM OF A UTILITY OPERATING IN THIS STATE; AND
(III) IS UTILIZED TO STORE AND DISCHARGE ELECTRICITY IN SUPPORT OF
RENEWABLE ENERGY GENERATION, GRID STABILITY, OR DEMAND MANAGEMENT FUNC-
TIONS. BATTERY ENERGY STORAGE SYSTEMS WITH A NAMEPLATE CAPACITY OF LESS
THAN ONE MEGAWATT SERVING EXCLUSIVELY RESIDENTIAL OR SMALL COMMERCIAL
CUSTOMERS SHALL BE EXEMPT FROM SUBDIVISIONS FOUR-A THROUGH FOUR-H OF
THIS SECTION.
1-C. "QUALIFIED LABOR ORGANIZATION" SHALL MEAN A BONA FIDE LABOR
ORGANIZATION, AS DEFINED IN SECTION TWO OF THE LABOR LAW, THAT REPRES-
ENTS OR SEEKS TO REPRESENT EMPLOYEES PERFORMING UTILITY OR ENERGY OPER-
ATIONS WORK, INCLUDING O&M OF ELECTRIC GENERATION, TRANSMISSION,
DISTRIBUTION, OR ENERGY STORAGE FACILITIES, WITHIN THE SERVICE TERRITORY
IN WHICH THE BATTERY ENERGY STORAGE SYSTEM IS LOCATED. THE DETERMINATION
OF WHICH QUALIFIED LABOR ORGANIZATION HOLDS MAJORITY REPRESENTATIONAL
STANDING IN A GIVEN SERVICE TERRITORY SHALL BE MADE BY THE COMMISSION
PURSUANT TO SUBDIVISION FOUR-B OF THIS SECTION, BASED UPON EVIDENCE FROM
THE DEPARTMENT OF LABOR, EXISTING COLLECTIVE BARGAINING AGREEMENTS, AND
OTHER AVAILABLE RECORDS, WITH A PRESUMPTION FAVORING THE ORGANIZATION
REPRESENTING A MAJORITY OF UTILITY O&M EMPLOYEES WITHIN THE RELEVANT
COUNTY.
1-D. "SUBSTANTIALLY EQUIVALENT" AS USED IN SUBPARAGRAPH (D) OF PARA-
GRAPH (II) OF SUBDIVISION FOUR-B OF THIS SECTION, SHALL MEAN SUBSTAN-
TIVELY IDENTICAL IN WORKFORCE STRUCTURE, OPERATIONAL JURISDICTION, AND
EMPLOYMENT CONTINUITY PROTECTIONS TO THE REQUIREMENTS OF SUBDIVISION
FOUR-C OF THIS SECTION, AND SHALL NOT BE CONSTRUED TO PERMIT AN ALTERNA-
TIVE WORKFORCE MODEL BASED SOLELY ON FUNCTIONAL TASK SIMILARITY OR TECH-
NOLOGICAL CAPABILITY.
1-E. "JMOU" MEANS A JURISDICTIONAL MEMORANDUM OF UNDERSTANDING.
1-F. "OPERATIONS AND MAINTENANCE" OR "O&M" SHALL MEAN ALL ACTIVITIES
PERFORMED TO SUSTAIN, REPAIR, MONITOR, TEST, INSPECT, OR MANAGE A
BATTERY ENERGY STORAGE SYSTEM DURING ITS OPERATIONAL LIFE, INCLUDING BUT
S. 9915 3
NOT LIMITED TO: (I) BATTERY MODULE AND INVERTER MAINTENANCE AND REPLACE-
MENT; (II) THERMAL MANAGEMENT SYSTEM OPERATION; (III) BATTERY MANAGEMENT
SYSTEM MONITORING, SOFTWARE UPDATES, AND CYBERSECURITY COMPLIANCE; (IV)
FIRE SUPPRESSION AND SAFETY SYSTEM INSPECTION AND TESTING PURSUANT TO
NFPA 855 AND APPLICABLE STATE FIRE CODE; (V) GRID INTERCONNECTION MAIN-
TENANCE; AND (VI) NYISO DISPATCH COORDINATION AND RELATED GRID SERVICES.
FOR PURPOSES OF THIS SECTION, O&M FUNCTIONS SHALL BE DEEMED TO OCCUR AT
THE FACILITY SITE REGARDLESS OF WHETHER PERFORMED REMOTELY, THROUGH
CENTRALIZED OPERATIONS CENTERS, OR THROUGH AUTOMATED SYSTEMS. PERSONNEL
PERFORMING MONITORING, DISPATCH COORDINATION, CYBERSECURITY OVERSIGHT,
OR CONTROL FUNCTIONS FOR A COVERED FACILITY, WHETHER ON-SITE OR REMOTE,
SHALL BE CONSIDERED O&M EMPLOYEES SUBJECT TO THE REQUIREMENTS OF THIS
SECTION.
4-A. WITHIN NINETY DAYS OF COMPLETION OF THE RULEMAKING REQUIRED UNDER
SECTION FOUR OF THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-SIX THAT
ADDED THIS SUBDIVISION, THE COMMISSION SHALL PUBLISH AND MAINTAIN A
SERVICE TERRITORY JURISDICTION MAP IDENTIFYING THE QUALIFIED LABOR
ORGANIZATION WITH MAJORITY REPRESENTATIONAL STANDING FOR O&M EMPLOYMENT
IN EACH GEOGRAPHIC AREA OF THE STATE. WHERE A DISPUTE ARISES BETWEEN
TWO OR MORE LABOR ORGANIZATIONS AS TO MAJORITY STANDING IN A GIVEN AREA,
THE COMMISSION SHALL RESOLVE SUCH DISPUTE WITHIN SIXTY DAYS OF RECEIVING
NOTICE THEREOF, BASED UPON: (I) DEPARTMENT OF LABOR CERTIFICATION
RECORDS; (II) THE GEOGRAPHIC SCOPE OF EXISTING COLLECTIVE BARGAINING
AGREEMENTS IN THE ENERGY OPERATIONS SECTOR; AND (III) EMPLOYMENT DATA
FOR COMPARABLE UTILITY FACILITIES IN THE RELEVANT SERVICE TERRITORY.
PENDING RESOLUTION, THE OWNER OR OPERATOR MAY SATISFY THE REQUIREMENTS
OF SUBDIVISION FOUR-B OF THIS SECTION THROUGH A PSC-CERTIFIED WORKFORCE
RELIABILITY PROGRAM AS PROVIDED IN SUBPARAGRAPH (D) OF PARAGRAPH (II) OF
SUBDIVISION FOUR-B OF THIS SECTION.
4-B. (I) NO OWNER OR OPERATOR OF A BATTERY ENERGY STORAGE SYSTEM IN
THIS STATE SHALL RECEIVE ANY INCENTIVE, CREDIT, BENEFIT, GRANT, LOAN, OR
PAYMENT FROM THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORI-
TY, THE CLEAN ENERGY FUND, OR ANY PROGRAM ADMINISTERED BY THE PUBLIC
SERVICE COMMISSION PURSUANT TO SECTION SIXTY-SIX-P OF THIS ARTICLE, OR
ANY TAX ABATEMENT UNDER SECTION FOUR HUNDRED EIGHTY-SEVEN OF THE REAL
PROPERTY TAX LAW, UNLESS THE OWNER OR OPERATOR DEMONSTRATES COMPLIANCE
WITH WORKFORCE RELIABILITY STANDARDS AS PROVIDED IN PARAGRAPHS (II),
(III), (IV) AND (V) OF THIS SUBDIVISION.
(II) AN OWNER OR OPERATOR SHALL BE DEEMED IN COMPLIANCE WITH THE WORK-
FORCE RELIABILITY STANDARD UPON DEMONSTRATION OF ANY ONE OF THE FOLLOW-
ING:
(A) A JMOU EXECUTED WITH THE QUALIFIED LABOR ORGANIZATION IDENTIFIED
UNDER SUBDIVISION FOUR-A OF THIS SECTION, MEETING THE MINIMUM TERMS OF
SUBDIVISION FOUR-C OF THIS SECTION;
(B) AN EXISTING COLLECTIVE BARGAINING AGREEMENT BETWEEN THE OWNER OR
OPERATOR AND A QUALIFIED LABOR ORGANIZATION COVERING O&M EMPLOYEES,
PROVIDED SUCH AGREEMENT MEETS OR EXCEEDS THE MINIMUM TERMS OF SUBDIVI-
SION FOUR-C OF THIS SECTION;
(C) DIRECT EMPLOYMENT OF O&M WORKERS THROUGH A QUALIFYING LABOR ORGAN-
IZATION DISPATCH OR HIRING HALL REFERRAL SYSTEM, WHERE O&M EMPLOYMENT IS
COVERED BY APPLICABLE WAGES, BENEFITS, AND TRAINING STANDARDS MEETING OR
EXCEEDING SUBDIVISION FOUR-C OF THIS SECTION; OR
(D) A PSC-CERTIFIED WORKFORCE RELIABILITY PROGRAM MEETING THE MINIMUM
STANDARDS ESTABLISHED BY THE COMMISSION THROUGH RULEMAKING, WHICH SHALL
INCLUDE WAGE, TRAINING, CERTIFICATION, SAFETY COMMITTEE, AND WORKFORCE
CONTINUITY REQUIREMENTS SUBSTANTIALLY EQUIVALENT TO THOSE PRESCRIBED IN
S. 9915 4
SUBDIVISION FOUR-C OF THIS SECTION; PROVIDED, HOWEVER, THAT NO SUCH
PROGRAM SHALL BE CERTIFIED UNLESS THE APPLICANT DEMONSTRATES THAT: (1)
THE PROPOSED WORKFORCE STRUCTURE IS CONSISTENT WITH PREVAILING JURISDIC-
TIONAL PRACTICE FOR ELECTRIC SYSTEM OPERATIONS AND MAINTENANCE IN THE
RELEVANT SERVICE TERRITORY, AS EVIDENCED BY THE CLASSIFICATIONS AND
BARGAINING UNITS HISTORICALLY COVERING ELECTRIC UTILITY OPERATIONS IN
THAT TERRITORY; (2) THE PROGRAM DOES NOT DISPLACE, DIMINISH, OR SUBSTI-
TUTE FOR THE EXISTING MAJORITY-REPRESENTED UTILITY O&M WORKFORCE IN THE
RELEVANT SERVICE TERRITORY; AND (3) THE PERSONNEL EMPLOYED UNDER THE
PROGRAM HOLD QUALIFICATIONS RECOGNIZED UNDER APPLICABLE ELECTRIC UTILITY
OPERATIONAL STANDARDS.
(III) THE SAFE HARBOR PATHWAYS OF PARAGRAPH (II) OF THIS SUBDIVISION
ARE ALTERNATIVES; AN OWNER OR OPERATOR SATISFYING ANY ONE PATHWAY SHALL
BE DEEMED COMPLIANT FOR ALL PURPOSES OF THIS SUBDIVISION. THE COMMISSION
SHALL NOT REQUIRE ANY OWNER OR OPERATOR TO UTILIZE A SPECIFIC COMPLIANCE
PATHWAY.
(IV) AN OWNER OR OPERATOR OF A BESS COMMENCING COMMERCIAL OPERATIONS
ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION SHALL DEMONSTRATE COMPLI-
ANCE NO LATER THAN ONE HUNDRED EIGHTY DAYS AFTER SUCH COMMERCIAL OPER-
ATIONS DATE. AN OWNER OR OPERATOR OF A BESS IN OPERATION ON THE EFFEC-
TIVE DATE OF THIS SUBDIVISION SHALL DEMONSTRATE COMPLIANCE NO LATER THAN
ONE HUNDRED EIGHTY DAYS AFTER SUCH EFFECTIVE DATE.
(V) EACH OWNER OR OPERATOR SHALL FILE AN ANNUAL WORKFORCE COMPLIANCE
CERTIFICATION WITH THE COMMISSION ATTESTING TO THE COMPLIANCE PATHWAY
UTILIZED AND CONTINUED SATISFACTION OF THE APPLICABLE MINIMUM STANDARDS.
4-C. A JMOU, TO QUALIFY AS A SAFE HARBOR COMPLIANCE PATHWAY UNDER
SUBPARAGRAPH (A) OF PARAGRAPH (II) OF SUBDIVISION FOUR-B OF THIS
SECTION, SHALL AT MINIMUM PROVIDE FOR:
(I) PAYMENT TO ALL O&M EMPLOYEES OF WAGES NOT LESS THAN THE PREVAILING
RATE OF WAGES AND SUPPLEMENTS AS DETERMINED BY THE COMMISSIONER OF LABOR
PURSUANT TO ARTICLE EIGHT OF THE LABOR LAW FOR THE APPLICABLE O&M OCCU-
PATIONAL CLASSIFICATIONS AND COUNTY;
(II) A WORKFORCE ENGAGEMENT PROCESS PROVIDING FOR REGULAR, SCHEDULED
LABOR-MANAGEMENT COMMUNICATION ON MATTERS INCLUDING SAFETY, TRAINING,
WORKFORCE CONTINUITY, AND FACILITY PERFORMANCE, NO LESS FREQUENTLY THAN
QUARTERLY;
(III) AN APPRENTICESHIP UTILIZATION COMMITMENT OF NOT LESS THAN
FIFTEEN PERCENT OF TOTAL O&M LABOR HOURS PERFORMED BY REGISTERED APPREN-
TICES ENROLLED IN A STATE-APPROVED APPRENTICESHIP PROGRAM; PROVIDED
THAT:
(A) FOR PURPOSES OF THIS PARAGRAPH, A "STATE-APPROVED APPRENTICESHIP
PROGRAM" SHALL MEAN ANY APPRENTICESHIP PROGRAM REGISTERED WITH THE
COMMISSIONER OF LABOR PURSUANT TO ARTICLE TWENTY-THREE OF THE LABOR LAW,
INCLUDING PROGRAMS JOINTLY ADMINISTERED BY AN EMPLOYER AND A LABOR
ORGANIZATION AND COVERING THE APPLICABLE O&M CLASSIFICATION, AND SHALL
ALSO INCLUDE STRUCTURED TRAINING PROGRAMS CERTIFIED BY THE COMMISSIONER
AS MEETING EQUIVALENT STANDARDS; REGISTERED APPRENTICES ENROLLED IN ANY
SUCH PROGRAM WHO PERFORM WORK WITHIN THE SCOPE OF THEIR PROGRAM ON
BATTERY ENERGY STORAGE SYSTEM INFRASTRUCTURE SHALL BE DEEMED REGISTERED
APPRENTICES FOR PURPOSES OF THIS PARAGRAPH;
(B) FOR OWNERS OR OPERATORS OF A SINGLE COVERED BESS FACILITY WITH A
TOTAL O&M WORKFORCE OF FEWER THAN TEN EMPLOYEES, THE APPRENTICESHIP
UTILIZATION COMMITMENT OF THIS PARAGRAPH SHALL BE NOT LESS THAN ONE
REGISTERED APPRENTICE PER FACILITY OR FIFTEEN PERCENT OF TOTAL O&M LABOR
HOURS, WHICHEVER IS LESS; AND
S. 9915 5
(C) FOR OWNERS OR OPERATORS OF MULTIPLE COVERED BESS FACILITIES WITHIN
THE SAME SERVICE TERRITORY, THE APPRENTICESHIP UTILIZATION COMMITMENT
MAY BE CALCULATED ON A PORTFOLIO BASIS ACROSS ALL SUCH FACILITIES,
PROVIDED THAT APPRENTICE LABOR IS ACTUALLY DEPLOYED AT COVERED FACILI-
TIES AND NOT CONCENTRATED SOLELY AT ADMINISTRATIVE OR TRAINING
LOCATIONS;
(IV) A JOINT LABOR-MANAGEMENT SAFETY COMMITTEE MEETING NOT LESS THAN
QUARTERLY TO REVIEW NFPA 855 COMPLIANCE, INCIDENT RECORDS, AND TRAINING
CERTIFICATIONS;
(V) BINDING ARBITRATION AS THE EXCLUSIVE MEANS OF RESOLVING DISPUTES
ARISING UNDER THE JMOU, WITH NO STRIKES, LOCKOUTS, OR WORK STOPPAGES
PERMITTED DURING THE TERM; AND
(VI) COMPLIANCE WITH THE TRAINING AND CERTIFICATION REQUIREMENTS OF
SUBDIVISION FOUR-E OF THIS SECTION. NOTHING IN THIS SUBDIVISION SHALL BE
CONSTRUED TO REQUIRE THE INCLUSION OF EMPLOYER NEUTRALITY PROVISIONS AS
A MANDATORY TERM OF A JMOU; SUCH PROVISIONS MAY BE NEGOTIATED AND
INCLUDED BY THE PARTIES AT THEIR ELECTION.
4-D. (I) THE COMMISSION SHALL ENFORCE THE WORKFORCE RELIABILITY STAND-
ARDS OF THIS SECTION AND MAY, UPON A FINDING OF NON-COMPLIANCE, TAKE ANY
ONE OR MORE OF THE FOLLOWING ACTIONS:
(A) SUSPEND THE DISBURSEMENT OF ANY STATE FINANCIAL ASSISTANCE DURING
THE PERIOD OF NON-COMPLIANCE;
(B) ORDER THE CLAWBACK OF PREVIOUSLY DISBURSED STATE FINANCIAL ASSIST-
ANCE, CALCULATED ON A PRO-RATA BASIS CORRESPONDING TO THE DURATION AND
EXTENT OF NON-COMPLIANCE, INTEGRATED WITH APPLICABLE NYSERDA CONTRACT
PROVISIONS;
(C) IMPOSE CIVIL PENALTIES OF NOT LESS THAN ONE THOUSAND DOLLARS NOR
MORE THAN TEN THOUSAND DOLLARS FOR EACH DAY OF NON-COMPLIANCE; PROVIDED,
HOWEVER, THAT FOR WILLFUL OR REPEATED VIOLATIONS, SUCH PENALTIES SHALL
BE DOUBLED; AND
(D) IMPOSE SUCH OTHER REMEDIES AS THE COMMISSION DEEMS APPROPRIATE,
INCLUDING CONDITIONS ON FUTURE NYSERDA PROGRAM PARTICIPATION OR PSC
SITING APPROVALS.
(II) ANY QUALIFIED LABOR ORGANIZATION IDENTIFIED UNDER SUBDIVISION
FOUR-A OF THIS SECTION MAY FILE A COMPLAINT WITH THE COMMISSION OR THE
DEPARTMENT OF LABOR ALLEGING NON-COMPLIANCE WITH THIS SECTION. THE
COMMISSION SHALL INVESTIGATE AND ISSUE A WRITTEN DETERMINATION WITHIN
NINETY DAYS OF RECEIPT OF SUCH COMPLAINT.
(III) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THE ESTAB-
LISHMENT OF AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, 29 U.S.C. § 1001 ET SEQ.
PREVAILING WAGE SUPPLEMENTAL BENEFIT OBLIGATIONS SHALL BE ADMINISTERED
CONSISTENT WITH EXISTING ERISA-COMPLIANT BENEFIT STRUCTURES UNDER APPLI-
CABLE DEPARTMENT OF LABOR PREVAILING WAGE SCHEDULES.
4-E. (I) FOR PURPOSES OF THIS SECTION, A TRAINING PROGRAM ADMINISTERED
BY OR ON BEHALF OF A UTILITY OR OPERATED PURSUANT TO A COLLECTIVE
BARGAINING AGREEMENT WITH A QUALIFIED LABOR ORGANIZATION SHALL BE DEEMED
A "COMMISSION-APPROVED TRAINING PROGRAM" UPON CERTIFICATION BY THE
COMMISSION THAT SUCH PROGRAM MEETS OR EXCEEDS THE CONTENT AND COMPETENCY
STANDARDS ESTABLISHED THROUGH RULEMAKING PURSUANT TO SECTION FOUR OF THE
CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-SIX THAT ADDED THIS SUBDIVI-
SION, INCLUDING PROFICIENCY IN NFPA 855. THE COMMISSION SHALL ESTABLISH
AN EXPEDITED REVIEW PROCESS, NOT TO EXCEED SIXTY DAYS, FOR CERTIFICATION
OF SUCH PROGRAMS.
(II) ALL O&M EMPLOYEES AT BATTERY ENERGY STORAGE SYSTEMS SUBJECT TO
THIS SECTION SHALL, PRIOR TO PERFORMING UNSUPERVISED O&M WORK:
S. 9915 6
(A) HOLD A CURRENT OSHA THIRTY-HOUR CERTIFICATION IN EITHER THE
CONSTRUCTION INDUSTRY OR THE GENERAL INDUSTRY TRACK, OR SUCH EQUIVALENT
CERTIFICATION AS APPROVED BY THE DEPARTMENT OF LABOR, INCLUDING OSHA
THIRTY-HOUR ELECTRIC UTILITY TRAINING PROGRAMS;
(B) DEMONSTRATE PROFICIENCY IN NFPA 855 STANDARD FOR THE INSTALLATION
OF STATIONARY ENERGY STORAGE SYSTEMS, AS EVIDENCED BY COMPLETION OF A
COMMISSION-APPROVED TRAINING PROGRAM; IN ADMINISTERING THE APPROVAL OF
TRAINING PROGRAMS UNDER THIS SUBPARAGRAPH, THE COMMISSION SHALL: (1)
GIVE PRIORITY APPROVAL TO PROGRAMS OFFERED BY JOINT LABOR-MANAGEMENT
TRAINING FUNDS AND STATE-REGISTERED APPRENTICESHIP PROGRAMS; AND (2)
REQUIRE ANY ORIGINAL EQUIPMENT MANUFACTURER TRAINING PROGRAM TO DEMON-
STRATE THAT IT MEETS THE SAME CONTENT AND COMPETENCY STANDARDS AS
COMMISSION-APPROVED PROGRAMS BEFORE RECEIVING APPROVAL; AND
(C) COMPLETE ANY ADDITIONAL TRAINING REQUIRED BY THE COMMISSION
THROUGH RULEMAKING FOR THE SPECIFIC BATTERY TECHNOLOGY DEPLOYED AT THE
FACILITY.
(III) EACH O&M EMPLOYEE SHALL COMPLETE NOT LESS THAN SIXTEEN HOURS OF
CONTINUING EDUCATION AND TRAINING ANNUALLY, INCLUDING UPDATES TO APPLI-
CABLE CODE REQUIREMENTS AND BATTERY TECHNOLOGY. SUCH HOURS MAY BE SATIS-
FIED BY ANY COMBINATION OF EMPLOYER-PROVIDED, LABOR ORGANIZATION-PROVID-
ED, OR THIRD-PARTY TRAINING COVERING APPLICABLE CODE, TECHNOLOGY, OR
SAFETY CONTENT.
(IV) THE OWNER OR OPERATOR SHALL MAINTAIN RECORDS OF TRAINING CERTIF-
ICATIONS FOR ALL O&M EMPLOYEES AND MAKE SUCH RECORDS AVAILABLE TO THE
COMMISSION AND THE DEPARTMENT OF LABOR UPON REQUEST.
(V) NOTWITHSTANDING SUBPARAGRAPH (B) OF PARAGRAPH (II) OF THIS SUBDI-
VISION, FOR O&M EMPLOYEES EMPLOYED AT A COVERED FACILITY ON THE EFFEC-
TIVE DATE OF THIS SECTION, COMPLIANCE WITH THE NFPA 855 PROFICIENCY
REQUIREMENT SHALL BE REQUIRED NO LATER THAN EIGHTEEN MONTHS AFTER THE
COMMISSION FIRST APPROVES A TRAINING PROGRAM SATISFYING SUBPARAGRAPH (B)
OF PARAGRAPH (II) OF THIS SUBDIVISION. DURING SUCH TRANSITIONAL PERIOD,
AN O&M EMPLOYEE MAY PERFORM O&M WORK UNDER A DOCUMENTED TRAINING PLAN
FILED WITH THE COMMISSION WITHOUT THE REQUIREMENT THAT SUCH WORK BE
PERFORMED UNDER THE SUPERVISION OF A CERTIFIED EMPLOYEE.
4-F. (I) WHERE A BATTERY ENERGY STORAGE SYSTEM IS SOLD, TRANSFERRED,
OR CONVEYED TO A NEW OWNER OR OPERATOR, THE SUCCESSOR OWNER OR OPERATOR
SHALL:
(A) OFFER CONTINUED EMPLOYMENT TO ALL O&M EMPLOYEES EMPLOYED AT THE
FACILITY IMMEDIATELY PRIOR TO THE TRANSFER, FOR A PERIOD OF NOT LESS
THAN ONE HUNDRED EIGHTY DAYS FOLLOWING THE TRANSFER DATE; AND
(B) DEMONSTRATE COMPLIANCE WITH THE WORKFORCE RELIABILITY STANDARD OF
SUBDIVISION FOUR-B OF THIS SECTION NO LATER THAN ONE HUNDRED EIGHTY DAYS
FOLLOWING THE EFFECTIVE DATE OF THE TRANSFER.
(II) THE RETENTION OBLIGATION OF THIS SUBDIVISION SHALL NOT REQUIRE A
SUCCESSOR OWNER OR OPERATOR TO RETAIN ANY EMPLOYEE FOR CAUSE OR TO
CREATE POSITIONS THAT DO NOT EXIST IN THE NEW OPERATIONAL STRUCTURE BUT
SHALL PREVENT THE REPLACEMENT OF O&M EMPLOYEES SOLELY FOR REASONS RELAT-
ING TO WORKFORCE COMPOSITION OR LABOR ORGANIZATION AFFILIATION DURING
THE ONE HUNDRED EIGHTY DAY RETENTION PERIOD.
(III) WHERE O&M EMPLOYEES AT A FACILITY SUBJECT TO THIS SUBDIVISION
ARE REPRESENTED BY A QUALIFIED LABOR ORGANIZATION AT THE TIME OF TRANS-
FER, THE SUCCESSOR OWNER OR OPERATOR SHALL: (A) RECOGNIZE SUCH LABOR
ORGANIZATION AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF O&M EMPLOY-
EES FOR THE REMAINING TERM OF ANY EXISTING COLLECTIVE BARGAINING AGREE-
MENT IN EFFECT AT THE TIME OF TRANSFER; AND (B) BARGAIN IN GOOD FAITH
WITH SUCH LABOR ORGANIZATION PRIOR TO MAKING ANY CHANGES TO WAGES,
S. 9915 7
HOURS, OR TERMS AND CONDITIONS OF EMPLOYMENT DURING THE ONE HUNDRED
EIGHTY DAY RETENTION PERIOD. NOTHING IN THIS PARAGRAPH SHALL REQUIRE A
SUCCESSOR TO ASSUME ANY COLLECTIVE BARGAINING AGREEMENT, BUT NO SUCCES-
SOR SHALL UNILATERALLY ALTER TERMS AND CONDITIONS OF EMPLOYMENT OF
REPRESENTED O&M EMPLOYEES DURING THE RETENTION PERIOD WITHOUT FIRST
BARGAINING TO AGREEMENT OR IMPASSE.
4-G. (I) THE COMMISSION SHALL, THROUGH RULEMAKING, ESTABLISH MINIMUM
O&M STAFFING STANDARDS FOR BATTERY ENERGY STORAGE SYSTEMS SUBJECT TO
THIS SECTION, TAKING INTO ACCOUNT FACILITY SIZE, BATTERY CHEMISTRY, GRID
INTERCONNECTION COMPLEXITY, AND PROXIMITY TO POPULATION CENTERS.
(II) FOR FACILITIES OPERATING IN A REMOTE-MONITORING OR AUTOMATED
MODE, THE OWNER OR OPERATOR SHALL MAINTAIN A DOCUMENTED RAPID RESPONSE
PROTOCOL DESIGNATING QUALIFIED O&M PERSONNEL CAPABLE OF ON-SITE RESPONSE
WITHIN A COMMISSION-SPECIFIED TIME PERIOD IN THE EVENT OF AN ALARM,
FAULT, OR GRID DISTURBANCE.
(III) MINIMUM STAFFING RULES SHALL BE REVIEWED AS PART OF THE FIVE-
YEAR REVIEW REQUIRED UNDER SECTION SEVEN OF THIS ACT AND UPDATED TO
REFLECT TECHNOLOGICAL CHANGES IN BATTERY STORAGE AND GRID OPERATIONS.
4-H. WITHIN ONE HUNDRED EIGHTY DAYS OF THE EFFECTIVE DATE OF THIS
SUBDIVISION, THE COMMISSIONER OF LABOR, IN CONSULTATION WITH THE COMMIS-
SION AND WITH QUALIFIED LABOR ORGANIZATIONS REPRESENTING O&M EMPLOYEES,
SHALL ESTABLISH ONE OR MORE APPRENTICESHIP CLASSIFICATIONS APPLICABLE TO
BATTERY ENERGY STORAGE SYSTEM OPERATIONS AND MAINTENANCE WORK AND SHALL
WORK WITH EXISTING STATE-REGISTERED APPRENTICESHIP PROGRAMS TO EXPAND
THEIR SCOPE TO INCLUDE SUCH CLASSIFICATIONS. PENDING ESTABLISHMENT OF
SUCH CLASSIFICATIONS, APPRENTICES ENROLLED IN ANY STATE-REGISTERED
APPRENTICESHIP PROGRAM PERFORMING WORK WITHIN THE SCOPE OF THEIR PROGRAM
ON BATTERY ENERGY STORAGE SYSTEM INFRASTRUCTURE SHALL BE DEEMED REGIS-
TERED APPRENTICES FOR PURPOSES OF SUBDIVISION FOUR-B OF THIS SECTION.
§ 3. Section 224-d of the labor law is amended by adding a new subdi-
vision 9 to read as follows:
9. A. FOR PURPOSES OF THIS SUBDIVISION:
(I) "COVERED BATTERY ENERGY STORAGE SYSTEM" SHALL MEAN ANY BATTERY
ENERGY STORAGE SYSTEM, AS DEFINED IN SUBDIVISION ONE-B OF SECTION
SIXTY-SIX-R OF THE PUBLIC SERVICE LAW, THAT: (A) HAS A NAMEPLATE CAPACI-
TY EXCEEDING FIVE MEGAWATTS; OR (B) HAS A NAMEPLATE CAPACITY OF ONE
MEGAWATT ALTERNATING CURRENT OR GREATER AND RECEIVES STATE FINANCIAL
ASSISTANCE, AS DEFINED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH, CONSTI-
TUTING MORE THAN THIRTY PERCENT OF TOTAL PROJECT COSTS. BATTERY ENERGY
STORAGE SYSTEMS WITH A NAMEPLATE CAPACITY OF LESS THAN ONE MEGAWATT
SERVING EXCLUSIVELY RESIDENTIAL CUSTOMERS SHALL BE EXEMPT.
(II) "O&M EMPLOYEE" SHALL MEAN ANY PERSON EMPLOYED BY THE OWNER, OPER-
ATOR, OR ANY CONTRACTOR OR SUBCONTRACTOR THEREOF TO PERFORM OPERATIONS
AND MAINTENANCE, AS DEFINED IN SUBDIVISION ONE-F OF SECTION SIXTY-SIX-R
OF THE PUBLIC SERVICE LAW, AT A COVERED BATTERY ENERGY STORAGE SYSTEM.
(III) "STATE FINANCIAL ASSISTANCE" SHALL MEAN ANY GRANT, INCENTIVE
PAYMENT, LOAN, TAX ABATEMENT, OR BENEFIT PROVIDED BY THE NEW YORK STATE
ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, THE CLEAN ENERGY FUND, THE
PUBLIC SERVICE COMMISSION, OR PURSUANT TO SECTION FOUR HUNDRED EIGHTY-
SEVEN OF THE REAL PROPERTY TAX LAW.
B. (I) EVERY OWNER OR OPERATOR OF A COVERED BATTERY ENERGY STORAGE
SYSTEM SHALL PAY OR CAUSE TO BE PAID TO EACH O&M EMPLOYEE A WAGE OF NOT
LESS THAN THE PREVAILING RATE OF WAGES AND SUPPLEMENTS FOR THE OCCUPA-
TION AND COUNTY IN WHICH SUCH EMPLOYEE PERFORMS WORK, AS DETERMINED BY
THE COMMISSIONER PURSUANT TO ARTICLE EIGHT OF THIS CHAPTER. IN ESTAB-
LISHING PREVAILING WAGE SCHEDULES FOR O&M EMPLOYEE CLASSIFICATIONS, THE
S. 9915 8
COMMISSIONER SHALL: (A) CLASSIFY EACH O&M WORK FUNCTION BASED UPON THE
MOST SIMILAR EXISTING PREVAILING WAGE CLASSIFICATION, INCLUDING BUT NOT
LIMITED TO JOURNEYMAN ELECTRICIAN, SUBSTATION OPERATOR, CONTROL SYSTEMS
OPERATOR, AND INSTRUMENTATION TECHNICIAN; (B) SET THE PREVAILING WAGE
FOR ANY NEW O&M CLASSIFICATION, INCLUDING BATTERY SYSTEMS TECHNICIAN AND
RELATED CLASSIFICATIONS, AT NOT LESS THAN THE RATE OF THE MOST COMPARA-
BLE EXISTING CLASSIFICATION COVERING SIMILAR ELECTRICAL SYSTEMS WORK IN
THE RELEVANT COUNTY; AND (C) PUBLISH PREVAILING WAGE SCHEDULES BASED
UPON APPLICABLE COLLECTIVE BARGAINING AGREEMENTS AND WAGE SURVEYS FOR
THE RELEVANT GEOGRAPHIC AREAS. THE PREVAILING WAGE FOR O&M WORK AT
COVERED BATTERY ENERGY STORAGE SYSTEM FACILITIES SHALL IN NO CASE BE
LESS THAN THE PREVAILING RATE FOR JOURNEYMAN ELECTRICIANS IN THE APPLI-
CABLE COUNTY.
(II) WHERE O&M FUNCTIONS ARE PERFORMED BY A CONTRACTOR OR SUBCONTRAC-
TOR, THE OWNER OR OPERATOR OF THE COVERED FACILITY SHALL REMAIN JOINTLY
AND SEVERALLY LIABLE FOR COMPLIANCE WITH ALL REQUIREMENTS OF THIS SUBDI-
VISION. NO OWNER OR OPERATOR SHALL STRUCTURE CONTRACTOR OR SUBCONTRACTOR
ARRANGEMENTS FOR THE PURPOSE OF, OR WITH THE EFFECT OF, CIRCUMVENTING
THE WORKFORCE CONTINUITY OR QUALIFIED LABOR ORGANIZATION REQUIREMENTS OF
SECTION SIXTY-SIX-R OF THE PUBLIC SERVICE LAW. THE COMMISSIONER MAY VOID
ANY PREVAILING WAGE DETERMINATION OR DIRECT THE PUBLIC SERVICE COMMIS-
SION TO VOID ANY SAFE HARBOR DETERMINATION UPON A FINDING THAT CONTRAC-
TOR OR SUBCONTRACTOR ARRANGEMENTS WERE USED TO AVOID COMPLIANCE WITH
THIS SECTION.
(III) NOTHING IN THIS PARAGRAPH SHALL BE CONSTRUED TO DIMINISH, LIMIT,
OR SUPERSEDE ANY RIGHT OR OBLIGATION ESTABLISHED BY A COLLECTIVE
BARGAINING AGREEMENT. THE PREVAILING WAGE RATES ESTABLISHED PURSUANT TO
THIS SECTION SHALL CONSTITUTE A MINIMUM FLOOR; WAGES AND BENEFITS NEGO-
TIATED ABOVE SUCH RATES IN COLLECTIVE BARGAINING AGREEMENTS SHALL NOT BE
AFFECTED BY, AND SHALL NOT BE SUBJECT TO REDUCTION BY REFERENCE TO, ANY
PREVAILING WAGE SCHEDULE ESTABLISHED UNDER THIS PARAGRAPH.
C. EVERY OWNER, OPERATOR, CONTRACTOR, AND SUBCONTRACTOR SUBJECT TO
THIS SUBDIVISION SHALL: (I) MAINTAIN CERTIFIED PAYROLL RECORDS FOR EACH
O&M EMPLOYEE; (II) FILE CERTIFIED PAYROLL COMPLIANCE REPORTS WITH THE
COMMISSIONER ON A QUARTERLY BASIS; AND (III) PERMIT INSPECTION OF
PAYROLL RECORDS BY THE COMMISSIONER UPON REQUEST. QUALIFIED LABOR ORGAN-
IZATIONS MAY FILE WRITTEN CHALLENGES TO CERTIFIED PAYROLL FILINGS WITH
THE COMMISSIONER, WHO SHALL INVESTIGATE SUCH CHALLENGES WITHIN SIXTY
DAYS.
D. THE PROVISIONS OF THIS ARTICLE RELATING TO ENFORCEMENT, PENALTIES,
DEBARMENT, AND PRIVATE RIGHTS OF ACTION SHALL APPLY TO VIOLATIONS OF
THIS SUBDIVISION. THE COMMISSIONER MAY NOTIFY NYSERDA AND THE PUBLIC
SERVICE COMMISSION OF ANY FINDING OF NON-COMPLIANCE, WHICH SHALL CONSTI-
TUTE GROUNDS FOR THE SUSPENSION OR PRO-RATA CLAWBACK OF STATE FINANCIAL
ASSISTANCE.
E. (I) NO OWNER, OPERATOR, CONTRACTOR, OR SUBCONTRACTOR SHALL
DISCHARGE, THREATEN, PENALIZE, DEMOTE, OR OTHERWISE DISCRIMINATE OR
RETALIATE AGAINST ANY O&M EMPLOYEE BY REASON OF SUCH EMPLOYEE'S DISCLO-
SURE OF INFORMATION TO THE COMMISSIONER, THE PUBLIC SERVICE COMMISSION,
OR A QUALIFIED LABOR ORGANIZATION REGARDING A POTENTIAL VIOLATION OF
THIS SUBDIVISION.
(II) AN O&M EMPLOYEE SUBJECTED TO RETALIATION IN VIOLATION OF THIS
PARAGRAPH MAY BRING A CIVIL ACTION FOR: (A) REINSTATEMENT; (B) BACK PAY
AND LOST BENEFITS; (C) REASONABLE ATTORNEYS' FEES AND COSTS; AND (D)
SUCH OTHER RELIEF AS THE COURT DEEMS APPROPRIATE. SUCH ACTION MUST BE
COMMENCED WITHIN TWO YEARS OF THE RETALIATORY ACT.
S. 9915 9
F. THIS SUBDIVISION SHALL APPLY TO COVERED BATTERY ENERGY STORAGE
SYSTEMS COMMENCING COMMERCIAL OPERATIONS ON OR AFTER THE EFFECTIVE DATE
OF THIS SUBDIVISION. FOR COVERED SYSTEMS IN OPERATION ON SUCH DATE,
COMPLIANCE SHALL BE REQUIRED NO LATER THAN ONE HUNDRED EIGHTY DAYS AFTER
SUCH EFFECTIVE DATE.
G. THIS SUBDIVISION SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH ALL
APPLICABLE FEDERAL LAW. THE STATE, IN ENACTING THIS SUBDIVISION, ACTS IN
ITS CAPACITY AS A MARKET PARTICIPANT AND AS A GRANTOR OF PUBLIC FINAN-
CIAL ASSISTANCE, CONSISTENT WITH THE DOCTRINE ESTABLISHED IN BUILDING
AND CONSTRUCTION TRADES COUNCIL V. ASSOCIATED BUILDERS AND CONTRACTORS
OF MASSACHUSETTS/RHODE ISLAND, INC., 507 U.S. 218 (1993), AND DOES NOT
ACT AS A REGULATOR OF THE LABOR-MANAGEMENT RELATIONSHIP WITHIN THE MEAN-
ING OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. § 151 ET SEQ. NOTH-
ING HEREIN SHALL BE CONSTRUED TO REQUIRE THE ESTABLISHMENT OF AN EMPLOY-
EE BENEFIT PLAN WITHIN THE MEANING OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, 29 U.S.C. § 1001 ET SEQ.
§ 4. The public service commission shall, within three hundred sixty-
five days of the effective date of this act, complete a rulemaking
proceeding to:
(a) Establish a standard form jurisdictional memorandum of understand-
ing template satisfying the minimum requirements of subdivision 4-c of
section 66-r of the public service law, for use as a default where
parties have not reached a negotiated agreement within sixty days of
good-faith negotiations;
(b) Establish procedures for identifying the qualified labor organiza-
tion with majority representational standing in each service territory,
in consultation with the department of labor and labor organizations
representing utility and energy operations employees, and publish the
service territory jurisdiction map required under subdivision 4-a of
section 66-r of the public service law within ninety days of the
completion of such rulemaking;
(c) Establish workforce compliance certification, complaint, and
enforcement processes consistent with subdivisions 4-b, 4-c and 4-d of
section 66-r of the public service law;
(d) Establish minimum staffing standards for BESS facilities pursuant
to subdivision 4-g of section 66-r of the public service law, including
rapid response protocols for remotely-operated facilities;
(e) Establish a PSC-certified workforce reliability program as an
alternative compliance pathway under subparagraph (D) of paragraph (ii)
of subdivision 4-b of section 66-r of the public service law. In estab-
lishing such program, the commission shall conduct not less than two
public hearings at which qualified labor organizations are designated as
parties with the right to submit written comments and present evidence,
and shall make affirmative written findings addressing why any certified
program is consistent with prevailing labor relations practices in the
electric utility sector before approving any program under that pathway;
(f) Amend program solicitation and contract requirements, including
the Bulk and Retail Energy Storage Incentive Programs administered by
NYSERDA, to reflect the requirements of this act;
(g) Coordinate with the commissioner of labor to establish battery
energy storage system O&M apprenticeship classifications pursuant to
subdivision 4-h of section 66-r of the public service law and to approve
training programs satisfying the requirements of subdivision 4-e of
section 66-r of the public service law, giving priority to programs
offered by joint labor-management training funds and state-registered
apprenticeship programs;
S. 9915 10
(h) Conduct not less than two public hearings, providing opportunity
for testimony from qualified labor organizations, O&M workers, BESS
owners and operators, NYSERDA, and other interested parties, prior to
the adoption of final rules; and
(i) In the event the commission fails to complete rulemaking within
three hundred sixty-five days, the standard form a jurisdictional memo-
randum of understanding template contained in the commission's proposed
rulemaking, or if none, a template prepared by the department of labor
in consultation with representative labor organizations, shall be deemed
adopted and in effect as of the three hundred sixty-sixth day after the
effective date of this act.
§ 5. No later than five years after the effective date of this act,
and every five years thereafter, the public service commission and the
commissioner of labor shall jointly submit a report to the governor, the
temporary president of the senate, and the speaker of the assembly eval-
uating implementation of this act, including:
(a) The number, size, and location of BESS subject to this act;
(b) Workforce compliance rates by safe harbor pathway utilized;
(c) operations and maintenance workforce employment levels, wage
rates, benefit levels, and representation rates at covered facilities;
(d) Enforcement actions taken and civil penalties collected;
(e) The impact of this act on battery energy storage systems deploy-
ment toward The Climate Leadership and Community Protection Act storage
targets, including any documented effects on project costs or develop-
ment timelines;
(f) The adequacy of minimum staffing standards in light of technolog-
ical changes; and
(g) Recommended amendments, if any, in light of implementation experi-
ence and changes in applicable federal law or technology.
§ 6. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, 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 directly involved in the controversy.
§ 7. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that the provisions of
section four of this act directing a Public Service Commission rulemak-
ing shall take effect immediately.
