N.Y. COM Law § 188-A — New York Code / Act COM / Article 6 / Section 188-A
Recharge New York power program
Status: in_force

§ 188-a. Recharge New York power program. (a) Definitions. For the\npurposes of this section, the following terms shall have the following\nmeanings:\n  (1) "Applicable criteria" shall mean the criteria specified in\nsubdivision (c) of this section.\n  (2) "Authority" shall mean the power authority of the state of New\nYork.\n  (3) "Recharge New York power allocation" or "allocation" shall mean an\nallocation of recharge New York power by the power authority of the\nstate of New York pursuant to section one thousand five of the public\nauthorities law to an eligible applicant recommended by the New York\nstate economic development power allocation board in accordance with\nthis section.\n  (4) "Eligible applicant" shall mean an eligible business, eligible\nsmall business, or eligible not-for-profit corporation as defined in\nthis section, provided however, that an eligible applicant shall not\ninclude retail businesses as defined by the board, including, without\nlimitation, sports venues, gaming or entertainment-related\nestablishments or places of overnight accommodation.\n  (5) "Eligible business" shall mean a business other than a\nnot-for-profit corporation which normally utilizes a minimum peak\nelectric demand in excess of four hundred kilowatts.\n  (6) "Eligible not-for-profit corporation" shall mean a corporation\ndefined in subdivision five of paragraph (a) of section one hundred two\nof the not-for-profit corporation law.\n  (7) "Eligible small business" shall mean a business other than a\nnot-for-profit corporation which normally utilizes a minimum peak\nelectric demand equal to or less than four hundred kilowatts.\n  (8) "Recharge New York power" shall mean and consist of equal amounts\nof (i) four hundred fifty-five megawatts of firm hydroelectric power\nfrom the Niagara and Saint Lawrence hydroelectric projects to be\nwithdrawn from utility corporations that, prior to the effective date of\nthis section, purchased such power for the benefit of their domestic and\nrural consumers ("recharge New York hydropower"), and (ii) power\nprocured by the authority through a competitive procurement process,\nauthority sources (other than the Niagara and Saint Lawrence projects)\nor through an alternate method ("recharge New York market power");\nprovided, however, that if such recharge New York market power comes\nfrom authority sources, the use of that power shall not reduce the\navailability of, or cause an increase in the price of, power provided by\nthe authority for any other program authorized in this article or\npursuant to any other statute.\n  (b) Applications for recharge New York power allocations. (1) The\nboard may solicit applications for recharge New York power allocations\nunder the program created by this section by public notice beginning no\nlater than February first, two thousand twelve. Such notice may include\nnewspaper advertisements, press releases, website postings, paper or\nelectronic mailing, and/or such other form of notice as the board finds\nappropriate in consultation with the authority.\n  (2) Applications for recharge New York power allocations shall be in\nthe form and contain such information, exhibits and supporting data as\nthe board prescribes in consultation with the authority. A copy of each\napplication received shall be made available for review by each board\nmember, and a copy shall be provided to the authority.\n  (3) An applicant who is a recipient of a hydroelectric power\nallocation or benefits supported by the sale of hydroelectric power\nunder another program administered in whole or part by the authority\nshall be eligible to apply for an allocation under the recharge New York\npower program only if it is in substantial compliance with its\ncontractual commitments made in connection with such other program,\nprovided however that an applicant shall not receive a recharge New York\npower allocation and any other authority power program benefits with\nrespect to the same quantity of electricity consumed at a facility.\n  (4) Subject to confidentiality requirements, upon receipt of each\napplication from the board, the authority shall promptly notify by\nelectronic means, including website postings and such other methods the\nboard deems appropriate in consultation with the authority, the\ngovernor, the speaker of the assembly, the minority leader of the\nassembly, the temporary president of the senate, the minority leader of\nthe senate, and each member of the state legislature in whose district\nany portion of the facility for which an allocation is requested is\nlocated. Such notice shall provide the name and a description of the\napplicant, and the address of the facility for which the allocation is\nrequested. The authority shall also develop a listing which contains the\nname and a description of each applicant, the recharge New York power\nprogram allocation sought by each applicant, and the address of the\nfacility for which the applicant requests the allocation, and shall make\nthe listing available for public review on the authority's website.\n  (c) Review applicable criteria and recommendations. (1) The board\nshall review applications submitted under the recharge New York power\nprogram.  The board shall make an initial determination of whether the\napplicant is an eligible applicant. In the case of an eligible\napplicant, the board may recommend to the authority that an allocation\nof recharge New York power be awarded to an applicant for a facility\nlocated in the state of New York based on consideration of the following\ncriteria which shall be considered in the aggregate and no one of which\nshall be presumptively determinative:\n  (i) the significance of the cost of electricity to the applicant's\noverall cost of doing business, and the impact that a recharge New York\npower allocation will have on the applicant's operating costs;\n  (ii) the extent to which a recharge New York power allocation will\nresult in new capital investment in the state by the applicant;\n  (iii) the extent to which a recharge New York power allocation is\nconsistent with any regional economic development council strategies and\npriorities;\n  (iv) the type and cost of buildings, equipment and facilities to be\nconstructed, enlarged or installed if the applicant were to receive an\nallocation;\n  (v) the applicant's payroll, salaries, benefits and number of jobs at\nthe facility for which a recharge New York power allocation is\nrequested;\n  (vi) the number of jobs that will be created or retained within the\nstate in relation to the requested recharge New York power allocation,\nand the extent to which the applicant will agree to commit to creating\nor retaining such jobs as a condition to receiving a recharge New York\npower allocation;\n  (vii) whether the applicant, due to the cost of electricity, is at\nrisk of closing or curtailing facilities or operations in the state,\nrelocating facilities or operations out of the state, or losing a\nsignificant number of jobs in the state, in the absence of a recharge\nNew York power allocation;\n  (viii) the significance of the applicant's facility that would receive\nthe recharge New York power allocation to the economy of the area in\nwhich such facility is located;\n  (ix) the extent to which the applicant has invested in energy\nefficiency measures, will agree to participate in or perform energy\naudits of its facilities, will agree to participate in energy efficiency\nprograms of the authority, or will commit to implement or otherwise make\ntangible investments in energy efficiency measures as a condition to\nreceiving a recharge New York power allocation;\n  (x) whether the applicant receives a hydroelectric power allocation or\nbenefits supported by the sale of hydroelectric power under another\nprogram administered in whole or in part by the authority;\n  (xi) the extent to which a recharge New York power allocation will\nresult in an advantage for an applicant in relation to the applicant's\ncompetitors within the state; and\n  (xii) in addition to the foregoing criteria, in the case of a\nnot-for-profit corporation, whether the applicant provides critical\nservices or substantial benefits to the local community in which the\nfacility for which the allocation is requested is located.\n  (2) A recommendation by the board that the authority provide a\nrecharge New York power allocation to an eligible applicant shall\ninclude, but need not be limited to:\n  (i) the amount of the recharge New York power allocation the board has\ndetermined should be awarded to such eligible applicant, provided\nhowever, that the board may recommend a recharge New York power\nallocation in an amount that is less than the amount requested by such\napplicant;\n  (ii) an effective initial term of the allocation and contract between\nthe eligible applicant and the authority which shall not exceed seven\nyears, provided however that the term of any such allocation and\ncontract shall not become effective before July first, two thousand\ntwelve;\n  (iii) provisions for effective periodic audits of the recipient of an\nallocation for the purpose of determining contract and program\ncompliance, and for the partial or complete withdrawal of an allocation\nif the recipient fails to maintain mutually agreed upon commitments,\nrelating to, among other things, employment levels, power utilization,\ncapital investments, and/or energy efficiency measures;\n  (iv) a requirement for an agreement by the recipient of an allocation\nto (A) undertake at its own expense an energy audit of its facilities at\nwhich the allocation is consumed at least once during the term of the\nallocation but in any event not less than once every five years,\nprovided, however, that such requirement may be waived or modified by\nthe authority on a showing of good cause by the recipient, and (B)\nprovide the authority with a copy of any such audit or, at the\nauthority's option, a report describing the results of such audit, and\nprovide documentation requested by the authority relating to the\nimplementation of any efficiency measures at the facilities; and\n  (v) a requirement for an agreement by the recipient of an allocation\nto (A) make its facilities available at reasonable times and intervals\nfor energy audits and related assessments that the authority desires to\nperform, if any, at the authority's own expense, and (B) provide\ninformation requested by the authority or its designee in surveys,\nquestionnaires and other information requests relating to energy\nefficiency and energy-related projects, programs and services.\n  (3) The board's recommendation shall require that if the actual\nmetered load at the facility where the allocation is utilized is less\nthan the allocation, such allocation will be reduced accordingly,\nprovided that, under its contract with the authority, the recipient\nshall be afforded a reasonable period within which to fully utilize the\nallocation, taking into account construction schedules and economic\nconditions. The authority shall reallocate any withdrawn or relinquished\npower for the recharge New York power program consistent with paragraph\nfour of this subdivision.\n  (4) The board may base its recommendation on which eligible applicants\nit determines best meet the applicable criteria; provided, however, that\nthe board shall dedicate recharge New York power as follows: (i) at\nleast three hundred fifty megawatts for use at facilities located within\nthe service territories of the utility corporations that, prior to the\neffective date of this section, purchased Niagara and Saint Lawrence\nhydroelectric power for the benefit of their domestic and rural\nconsumers; (ii) at least two hundred megawatts for the purposes of\nattracting new business to the state, creating new business within the\nstate, or encouraging the expansion of existing businesses within the\nstate, that create new jobs or leverage new capital investment; and\n(iii) an amount not to exceed one hundred fifty megawatts for eligible\nsmall businesses and eligible not-for-profit corporations.\n  (5) The board shall issue a written statement of its findings and\nconclusions with respect to every application and the reasons for its\nrecommendation to the authority.\n  (6) A recommendation for a recharge New York power allocation shall\nqualify an applicant to enter into a contract with the authority\npursuant to the terms and conditions of the recommendation by the board\nand on such other terms as the authority determines to be appropriate.\n  (7) The board shall not recommend a total of recharge New York power\nallocations in excess of nine hundred ten megawatts.\n  (d) The authority shall work cooperatively with the department of\npublic service to recommend to the public service commission reduced\nrates or an equivalent mechanism for the delivery by utility\ncorporations of recharge New York power program allocations. Any such\nrecommendation for reduced delivery rates shall be at such level as to\nallow the utility to (i) recover the incremental cost of providing\ndelivery service to such customers, and (ii) contribute to the common\ndelivery and related costs which otherwise would be borne by other\ncustomers.\n  (e) The authority shall, at a minimum, report quarterly to the board\non the availability of recharge New York power for the subsequent\ntwelve-month period, the amount of such power allocated and other\nrelevant information.\n  (f) After an award of a recharge New York power allocation, the board\nshall accept requests from recipients who at the time of such request\nare eligible applicants who are in substantial compliance with\ncontractual commitments made in connection with the recharge New York\npower program for an extension of an existing allocation (i) during the\ntwenty-four month period immediately preceding the expiration of the\nterm of the allocation, or (ii) at such earlier time with the consent of\nthe authority in writing. Requests for extensions shall be reviewed\nusing the criteria set forth in paragraph one of subdivision (c) of this\nsection.\n  (g) Transfers of recharge New York power. Notwithstanding any other\napproval required by statute, regulation or contract, the transfer of a\nrecharge New York power allocation to a different recipient, to a\ndifferent owner or operator of a facility, or to a different facility is\nprohibited unless specifically approved by the board as consistent with\nthe criteria and requirements of this section. Any transfer that occurs\nwithout the board's approval shall be invalid and such transfer may\nsubject the transferor to revocation or modification of its allocation\nand contract.\n  (h) (1) The board, in consultation with the authority, shall submit to\nthe governor, temporary president of the senate, speaker of the\nassembly, minority leader of the senate and minority leader of the\nassembly an evaluation of the effectiveness of the recharge New York\npower program. Such evaluation shall focus on how the program has aided\nrecipients of power allocations, and may include recommendations for how\nthe program can be made more effective, and shall be based, in part, on\nthe relative costs of power for recipients in comparison to the cost of\npower for non-recipients. Such evaluation shall be submitted by December\nthirty-first, two thousand fifteen and by December thirty-first every\nfive years thereafter.\n  (2) The board, with assistance from the authority, shall maintain the\nnecessary records and data required to perform such evaluation and\nrespond to requests for information pursuant to article six of the\npublic officers law.\n