N.Y. Economic Development Law § 188-a: Recharge New York power program

§ 188-a. Recharge New York power program. (a) Definitions. For the

purposes of this section, the following terms shall have the following

meanings:

(1) "Applicable criteria" shall mean the criteria specified in

subdivision (c) of this section.

(2) "Authority" shall mean the power authority of the state of New

York.

(3) "Recharge New York power allocation" or "allocation" shall mean an

allocation of recharge New York power by the power authority of the

state of New York pursuant to section one thousand five of the public

authorities law to an eligible applicant recommended by the New York

state economic development power allocation board in accordance with

this section.

(4) "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

establishments or places of overnight accommodation.

(5) "Eligible business" shall mean a business other than a

not-for-profit corporation which normally utilizes a minimum peak

electric demand in excess of four hundred kilowatts.

(6) "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.

(7) "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.

(8) "Recharge New York power" shall mean and consist of equal amounts

of (i) four hundred fifty-five megawatts of firm hydroelectric power

from the Niagara and Saint Lawrence hydroelectric projects to be

withdrawn from utility corporations that, prior to the effective date of

this section, purchased such power for the benefit of their domestic and

rural consumers ("recharge New York hydropower"), and (ii) power

procured by the authority through a competitive procurement process,

authority sources (other than the Niagara and Saint Lawrence projects)

or through an alternate method ("recharge New York market power");

provided, however, that if such recharge New York market power comes

from authority sources, the use of that power shall not reduce the

availability of, or cause an increase in the price of, power provided by

the authority for any other program authorized in this article or

pursuant to any other statute.

(b) Applications for recharge New York power allocations. (1) The

board may solicit applications for recharge New York power allocations

under the program created by this section by public notice beginning no

later than February first, two thousand twelve. Such notice may include

newspaper advertisements, press releases, website postings, paper or

electronic mailing, and/or such other form of notice as the board finds

appropriate in consultation with the authority.

(2) Applications for recharge New York power allocations 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, and a copy shall be provided to the authority.

(3) An applicant who is a recipient of a hydroelectric power

allocation or benefits supported by the sale of hydroelectric power

under another program administered in whole or part by the authority

shall be eligible to apply for an allocation under the recharge New York

power program only if it is in substantial compliance with its

contractual commitments made in connection with such other program,

provided however that an applicant shall not receive a recharge New York

power allocation and any other authority power program benefits with

respect to the same quantity of electricity consumed at a facility.

(4) Subject to confidentiality requirements, upon receipt of each

application from the board, the authority shall promptly notify by

electronic means, including website postings and such other methods the

board deems appropriate in consultation with the authority, the

governor, 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 for which an allocation is requested is

located. Such notice shall provide the name and a description of the

applicant, and the address of the facility for which the allocation is

requested. The authority shall also develop a listing which contains the

name and a description of each applicant, the recharge New York power

program allocation sought by each applicant, and the address of the

facility for which the applicant requests the allocation, and shall make

the listing available for public review on the authority's website.

(c) Review applicable criteria and recommendations. (1) The board

shall review applications submitted under the recharge New York power

program. The board shall make an initial determination of whether the

applicant is an eligible applicant. In the case of an eligible

applicant, the board may recommend to the authority that an allocation

of recharge New York power be awarded to an applicant for a facility

located in the state of New York based on consideration of the following

criteria which shall be considered in the aggregate and no one of which

shall be presumptively determinative:

(i) the significance of the cost of electricity to the applicant's

overall cost of doing business, and the impact that a recharge New York

power allocation will have on the applicant's operating costs;

(ii) the extent to which a recharge New York power allocation will

result in new capital investment in the state by the applicant;

(iii) the extent to which a recharge New York power allocation is

consistent with any regional economic development council strategies and

priorities;

(iv) the type and cost of buildings, equipment and facilities to be

constructed, enlarged or installed if the applicant were to receive an

allocation;

(v) the applicant's payroll, salaries, benefits and number of jobs at

the facility for which a recharge New York power allocation is

requested;

(vi) the number of jobs that will be created or retained within the

state in relation to the requested recharge New York power allocation,

and the extent to which the applicant will agree to commit to creating

or retaining such jobs as a condition to receiving a recharge New York

power allocation;

(vii) whether the applicant, due to the 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 a recharge

New York power allocation;

(viii) the significance of the applicant's facility that would receive

the recharge New York power allocation to the economy of the area in

which such facility is located;

(ix) the extent to which the applicant has invested in energy

efficiency measures, will agree to participate in or perform energy

audits of its facilities, will agree to participate in energy efficiency

programs of the authority, or will commit to implement or otherwise make

tangible investments in energy efficiency measures as a condition to

receiving a recharge New York power allocation;

(x) whether the applicant receives a hydroelectric power allocation or

benefits supported by the sale of hydroelectric power under another

program administered in whole or in part by the authority;

(xi) the extent to which a recharge New York power allocation will

result in an advantage for an applicant in relation to the applicant's

competitors within the state; and

(xii) in addition to the foregoing criteria, in the case of a

not-for-profit corporation, whether the applicant provides critical

services or substantial benefits to the local community in which the

facility for which the allocation is requested is located.

(2) A recommendation by the board that the authority provide a

recharge New York power allocation to an eligible applicant shall

include, but need not be limited to:

(i) the amount of the recharge New York power allocation the board has

determined should be awarded to such eligible applicant, provided

however, that the board may recommend a recharge New York power

allocation in an amount that is less than the amount requested by such

applicant;

(ii) an effective initial term of the allocation and contract between

the eligible applicant and the authority which shall not exceed seven

years, provided however that the term of any such allocation and

contract shall not become effective before July first, two thousand

twelve;

(iii) provisions for effective periodic audits of the recipient of an

allocation for the purpose of determining contract and program

compliance, and for the partial or complete withdrawal of an allocation

if the recipient fails to maintain mutually agreed upon commitments,

relating to, among other things, employment levels, power utilization,

capital investments, and/or energy efficiency measures;

(iv) a requirement for an agreement by the recipient of an allocation

to (A) undertake at its own expense an energy audit of its facilities at

which the allocation is consumed at least once during the term of the

allocation but in any event not less than once every five years,

provided, however, that such requirement may be waived or modified by

the authority on a showing of good cause by the recipient, and (B)

provide the authority with a copy of any such audit or, at the

authority's option, a report describing the results of such audit, and

provide documentation requested by the authority relating to the

implementation of any efficiency measures at the facilities; and

(v) a requirement for an agreement by the recipient of an allocation

to (A) make its facilities available at reasonable times and intervals

for energy audits and related assessments that the authority desires to

perform, if any, at the authority's own expense, and (B) provide

information requested by the authority or its designee in surveys,

questionnaires and other information requests relating to energy

efficiency and energy-related projects, programs and services.

(3) The board's recommendation shall require that if the actual

metered load at the facility where the allocation is utilized is less

than the allocation, such allocation will be reduced accordingly,

provided that, under its contract with the authority, the recipient

shall be afforded a reasonable period within which to fully utilize the

allocation, taking into account construction schedules and economic

conditions. The authority shall reallocate any withdrawn or relinquished

power for the recharge New York power program consistent with paragraph

four of this subdivision.

(4) The board may base its recommendation on which eligible applicants

it determines best meet the applicable criteria; provided, however, that

the board shall dedicate recharge New York power as follows: (i) at

least three hundred fifty megawatts for use at facilities located within

the service territories of the utility corporations that, prior to the

effective date of this section, purchased Niagara and Saint Lawrence

hydroelectric power for the benefit of their domestic and rural

consumers; (ii) at least two hundred megawatts for the purposes of

attracting new business to the state, creating new business within the

state, or encouraging the expansion of existing businesses within the

state, that create new jobs or leverage new capital investment; and

(iii) an amount not to exceed one hundred fifty megawatts for eligible

small businesses and eligible not-for-profit corporations.

(5) The board shall issue a written statement of its findings and

conclusions with respect to every application and the reasons for its

recommendation to the authority.

(6) A recommendation for a recharge New York power allocation shall

qualify an applicant to enter into a contract with the authority

pursuant to the terms and conditions of the recommendation by the board

and on such other terms as the authority determines to be appropriate.

(7) The board shall not recommend a total of recharge New York power

allocations in excess of nine hundred ten megawatts.

(d) The authority shall work cooperatively with the department of

public service to recommend to the public service commission reduced

rates or an equivalent mechanism for the delivery by utility

corporations of recharge New York power program allocations. Any such

recommendation for reduced delivery rates shall be at such level as to

allow the utility to (i) recover the incremental cost of providing

delivery service to such customers, and (ii) contribute to the common

delivery and related costs which otherwise would be borne by other

customers.

(e) The authority shall, at a minimum, report quarterly to the board

on the availability of recharge New York power for the subsequent

twelve-month period, the amount of such power allocated and other

relevant information.

(f) After an award of a recharge New York power allocation, the board

shall accept requests from recipients who at the time of such request

are eligible applicants who are in substantial compliance with

contractual commitments made in connection with the recharge New York

power program for an extension of an existing allocation (i) during the

twenty-four month period immediately preceding the expiration of the

term of the allocation, or (ii) at such earlier time with the consent of

the authority in writing. Requests for extensions shall be reviewed

using the criteria set forth in paragraph one of subdivision (c) of this

section.

(g) Transfers of recharge New York power. Notwithstanding any other

approval required by statute, regulation or contract, the transfer of a

recharge New York power allocation to a different recipient, to a

different owner or operator of a facility, or to a different facility is

prohibited unless specifically approved by the board as consistent with

the criteria and requirements of this section. Any transfer that occurs

without the board's approval shall be invalid and such transfer may

subject the transferor to revocation or modification of its allocation

and contract.

(h) (1) The board, in consultation with the authority, shall submit to

the governor, temporary president of the senate, speaker of the

assembly, minority leader of the senate and minority leader of the

assembly an evaluation of the effectiveness of the recharge New York

power program. Such evaluation shall focus on how the program has aided

recipients of power allocations, and may include recommendations for how

the program can be made more effective, and shall be based, in part, on

the relative costs of power for recipients in comparison to the cost of

power for non-recipients. Such evaluation shall be submitted by December

thirty-first, two thousand fifteen and by December thirty-first every

five years thereafter.

(2) The board, with assistance from the authority, shall maintain the

necessary records and data required to perform such evaluation and

respond to requests for information pursuant to article six of the

public officers law.