NY Pub Auth L § 1020-F (2021)
2021 New York Laws PBA - Public Authorities Article 5 - Public Utility Authorities Title 1-A - Long Island Power Authority 1020-F - General Powers of the Authority.

* §  1020-f.  General  powers  of  the  authority. Except as otherwise limited by this title, the  authority  shall  have  all  of  the  powers necessary or convenient to carry out the purposes and provisions of this title,  including  without limiting the generality of the foregoing, the power:  (a) To sue and be sued in all courts and to participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise;  (b) To have a corporate seal, and to alter such seal at pleasure,  and to  use  it  by  causing it or a facsimile to be affixed or impressed or reproduced in any other manner;  (c) To appoint officers, agents and employees, without regard  to  any personnel  or  civil service law, rule or regulation of the state and in accordance with guidelines adopted by  the  authority,  prescribe  their duties and qualifications and fix and pay their compensation. By January first,  two  thousand  fourteen,  the  authority, through its governance committee, shall amend such guidelines to require that staffing  at  the authority  is kept at levels only necessary to ensure that the authority is able to meet obligations with respect to its bonds and notes and  all applicable  statutes  and  contracts,  and oversee the activities of the service provider;  (d) To purchase, receive, take by  grant,  gift,  devise,  bequest  or otherwise,  lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal in  and  with,  real  or  personal  property  whether tangible or intangible, or any interest therein, within the state;  (e)  To  acquire  real  or  personal  property,  whether  tangible  or intangible, including without limitation property rights,  interests  in property,  franchises,  obligations,  contracts,  and  debt  and  equity securities, by the exercise of the power of  eminent  domain;  provided, however, that any real property acquired by the exercise of the power of eminent domain must be located within the service area;  (f)  To  sell, convey, lease, exchange, transfer, abandon or otherwise dispose of, or mortgage, pledge or create a security interest in, all or any  of  its  assets,  properties  or  any  interest  therein,  wherever situated;  (g)  To  purchase, take, receive, subscribe for, or otherwise acquire, hold, make  a  tender  offer  for,  vote,  employ,  sell,  lend,  lease, exchange, transfer, or otherwise dispose of, mortgage, pledge or grant a security  interest  in,  use  and  otherwise deal in and with, bonds and other obligations, shares or other  securities  (or  interests  therein) issued  by others, whether engaged in a similar or different business or activity;  (h) To make and execute agreements, contracts  and  other  instruments necessary  or  convenient in the exercise of the powers and functions of the authority under this title, including  contracts  with  any  person, firm,  corporation,  municipality,  state  agency  or  other  entity  in accordance with the provisions of  section  one  hundred  three  of  the general municipal law, and all state agencies and all municipalities are hereby  authorized  to enter into and do all things necessary to perform any such agreement, contract or other instrument with the authority;  (i) To borrow money at such rate or rates of interest as the authority may determine, issue its notes, bonds or other obligations  to  evidence such  indebtedness,  and  secure  any  of its obligations by mortgage or pledge of all or any of its property or any interest  therein,  wherever situated;  (j) To arrange for guarantees of its bonds, notes or other obligations by the federal government or by any private insurer or otherwise, and to pay any premiums therefor;  (k)  To  issue such bonds or notes or other obligations whether or not the income therefrom is exempt from federal income taxation;  (l)  To purchase bonds, notes or other obligations of the authority at such price or prices as the authority may determine;  (m) To lend money, invest and reinvest its funds, and  take  and  hold real  and  personal  property  as  security  for the payment of funds so loaned or invested;  (n) To procure insurance against  any  loss  in  connection  with  its properties  or  operations  in  such  amount  or  amounts  and from such insurers, including the federal government, as it may deem necessary  or desirable, and to pay any premiums therefor;  (o)  To  create  or  acquire  one or more wholly owned subsidiaries in accordance with section one thousand twenty-i of this title to carry out all or any part of the purposes of this title;  (p) To negotiate and enter into agreements with trustees or  receivers appointed  by United States bankruptcy courts or federal district courts or in other proceedings involving  adjustment  of  debts  and  authorize legal counsel for the authority to appear in any such proceedings;  (q)  To  file  a  petition  under  chapter nine of title eleven of the United States bankruptcy code or  take  other  similar  action  for  the adjustment of its debts;  (r)  To  enter  into  agreements  to  purchase  power  from  the power authority of the state of New York, the state,  any  state  agency,  any municipality,  any private entity, or any other available source at such price or prices as  may  be  negotiated;  provided,  however,  that  the authority  shall  not  have the power to enter into any agreement or any negotiation for the purchase of power from the dominion  of  Canada,  or any  political  subdivision,  public  authority  or  private corporation therein; but may enter into an agreement with the power authority of the state of New York for the purchase of such power;  (s) To enter into management agreements for the operation  of  all  or any of the property or facilities owned by the authority;  (t)  To transfer any asset of the authority to one or more (i) private utility or (ii) municipal gas or electric agency established pursuant to article fourteen-A of the general municipal law, for such  consideration and  upon  such  terms  as the authority may determine to be in the best interest of the gas and electric ratepayers in the service area;  (u) Rate plans. Subject to subdivision six  of  section  one  thousand twenty-k  of  this  title to fix rates and charges for the furnishing or rendition of gas or electric power or of  any  related  service  at  the lowest level consistent with sound fiscal and operating practices of the authority   and   which  provide  for  safe  and  adequate  service.  In implementing this power:   1. The authority and the service provider shall, on or before February first, two thousand fifteen, submit for  review  to  the  department  of public  service a three-year rate proposal for rates and charges to take effect on or after January first, two thousand sixteen.   2. The authority and the service provider shall thereafter submit  for review  to the department of public service any rate proposal that would increase the rates and charges and thus increase the aggregate  revenues of the authority by more than two and one-half percent to be measured on an  annual  basis;  provided, however, that the authority may place such rates  and  charges  into  effect  on  an  interim  basis,  subject   to prospective  rate  adjustment; provided, further, that a final rate plan issued by the authority that  would  not  so  increase  such  rates  and charges  shall  not  be subject to the requirements of paragraph four of this subdivision and shall be  considered  final  for  the  purposes  of review  under article seventy-eight of the civil practice law and rules.  The authority and/or the  service  provider  may  otherwise  submit  for review  to  such department any rate proposal irrespective of its effect on revenues.   2-a.  The authority and the service provider shall not submit any rate proposal that shall assess any fee, penalty or other charge of any  kind for  the  voluntary  termination  of electric service to any residential customer for the purpose of utilizing alternative  sources  of  electric generation  in  excess  of that charged to customers who terminate their electric service for any other reason.   3. The authority shall not fix any final rates  and  charges  proposed that  would not be subject to review by the department of public service pursuant to paragraphs one and  two  of  this  subdivision  until  after holding  public  hearings thereon upon reasonable public notice, with at least one such hearing to be held each in the county of Suffolk and  the county of Nassau.   4.  Any  recommendations  associated  with  a  rate proposal submitted pursuant to paragraphs one and two of this subdivision shall be provided by the department of public  service  to  the  board  of  the  authority immediately  upon their finalization by the department. Unless the board of the authority makes a preliminary  determination  in  its  discretion that  any particular recommendation is inconsistent with the authority's sound fiscal operating practices, any existing contractual or  operating obligations,  or  the  provision of safe and adequate service, the board shall implement such recommendations as part of its final rate plan  and such  final determination shall be deemed to satisfy the requirements of this subdivision and be considered final  for  the  purposes  of  review under  article  seventy-eight  of  the civil practice law and rules. The board shall make any such  preliminary  determination  of  inconsistency within  thirty  days of receipt of such recommendations, with notice and the basis of such determination being  provided  to  the  department  of public  service,  and  contemporaneously  posted  on the websites of the authority and its service provider. The board shall  thereafter,  within thirty  days  of such posting and with due advance notice to the public, hold a public hearing with respect to its preliminary  determination  of inconsistency.  At  such hearing, the department of public service shall present the basis for its recommendations, the board shall  present  the basis  for  its  determination of inconsistency and the service provider may present its position. The authority and the  service  provider  may, during  the  time period before such public hearing reach agreement with the department on disputed issues. Within thirty days after such  public hearing,   the   board   of  the  authority  shall  announce  its  final determination and  planned  implementation  with  respect  to  any  such recommendations.  The  authority's  final determination of inconsistency shall be subject to any applicable judicial review proceeding, including review available under article seventy-eight of the civil  practice  law and rules.  (v)  To  enter  upon any lands and within any building whenever in its judgment it may be necessary for  the  purpose  of  making  surveys  and examinations to accomplish any purpose authorized by this title;  (w)  To  enter  into agreements to pay annual sums in lieu of taxes to any municipality with respect to any real property which is owned by the authority and is located in such municipality;  (x) To maintain an office or offices at such place or  places  in  the state as it may determine;  (y)  To  make  any  inquiry,  investigation, survey or study which the authority may deem necessary to enable it effectively to carry  out  the provisions  of this title and, for that purpose, to take and hear proofs and testimony, and with the prior vote of a majority of the board  which  majority  vote  shall  include  the  vote  of the chairman to compel the attendance of witnesses and to require the production of records, books, papers, accounts and other documents, including public records,  and  to make copies thereof or extracts therefrom; and  (z)  To  adopt,  revise,  amend  and repeal rules and regulations with respect to its operations, properties and facilities as may be necessary or convenient to carry out the purposes of this title,  subject  to  the provisions of the state administrative procedure act.  (aa)  Notwithstanding  any  other provision of law to the contrary the authority shall not undertake any project without the  approval  of  the public  authorities  control  board created pursuant to article one-A of this chapter. Each application to the public authorities  control  board shall  contain  a  project  description  and  an  explanation of why the project meets the standards for  project  approval  set  forth  in  this subdivision.  The  public authorities control board shall only approve a project proposed by the authority upon its determination that:   1. the project is financially feasible as the standard is  defined  in article one-A of this chapter;   2.  the  project  does  not  materially  adversely affect overall real property taxes in the service area;   3. the project is anticipated to result  generally  in  lower  utility rates in the service area; and   4.  the  project  will  not  materially  adversely affect overall real property taxes or utility rates in other areas of the state of New York.  (bb) Comprehensive and regular management and  operations  audits.  1. The   authority   and  the  service  provider  shall  cooperate  in  the undertaking and completion of a regular and comprehensive management and operations  audit  conducted  pursuant  to  the  requirements  of   this subdivision and paragraph (d) of subdivision three of section three-b of the public service law. Such audit shall review and evaluate the overall operations  and  management  of  the  authority  and  service  provider, including  such  operations  and  management  in  the  context  of   the authority's  duty  to  set  rates  at  the  lowest level consistent with standards and procedures provided in subdivision (u)  of  this  section, and  include,  but  not  be  limited  to:  (i)  the  service  provider's construction and capital program planning in relation to  the  needs  of customers  for  reliable  service;  (ii)  the  overall efficiency of the authority's and service provider's operations; (iii) the manner in which the  authority  is  meeting  its  debt  service  obligations;  (iv)  the authority's Fuel and Purchased Power Cost Adjustment clause and recovery of  costs  associated  with such clause; (v) the authority's and service provider's  annual  budgeting   procedures   and   process;   (vi)   the application,  if  any,  of  the  performance  metrics  designated in the operations services agreement and the accuracy of the data  relied  upon with  respect  to such application; and (vii) the authority's compliance with debt covenants.   2. The department of public service shall notify  the  authority  that said  department  is  in  the  process  of  initiating  a  comprehensive management and operations audit as described in paragraph  one  of  this subdivision  in  a manner that ensures the timeliness of such audit, and in accordance with the  following  timeframe:  the  first  comprehensive management  and  operations audit shall be initiated as of the effective date of chapter eight of the laws of two thousand twelve and  undertaken in  a  manner and to an extent that is practicable in the context of the authority's transition to a new management service structure; the second comprehensive management and operations  audit  shall  be  initiated  no later  than December fifteenth, two thousand sixteen; and all additional comprehensive management and operations audits  shall  be  initiated  at  least  once  every five years thereafter. Within a reasonable time after such notification to the authority, said department or  the  independent auditor  retained  by  the  authority to undertake such audit shall hold public  statement  hearings,  with  proper  notice,  in  both Nassau and Suffolk counties for the purpose of  receiving  both  oral  and  written comments  from  the public on matters related to such audit as described in paragraph one of this subdivision.   3. Each such audit  shall  be  completed  within  eighteen  months  of initiation absent an extension for good cause shown by the department of public  service  or  the  independent  auditor  under  contract with the authority with notice of such extension to the governor,  the  temporary president  of the senate, the speaker of the assembly, and the chairs of the authority and the department of public service. Such audit shall  be provided  to the board of the authority immediately upon its completion. The department of public service shall provide notice of  completion  of such  audit  to the governor, the temporary president of the senate, the speaker of the assembly, and the minority  leaders  of  the  senate  and assembly,  and  the  authority, upon receipt of such audit, shall post a copy of such audit,  including  findings  and  recommendations,  on  its website and the website of the service provider. Unless the board of the authority  makes a preliminary determination that any particular finding or recommendation contained in  such  audit  is  inconsistent  with  the authority's  sound  fiscal operating practices, any existing contractual or operating obligation, or the provision for safe and adequate service, the board shall implement or cause its  service  provider  to  implement such  findings  and  recommendations  in  accordance  with the timeframe specified under such audit.   4. The board of the authority shall make any preliminary determination of inconsistency with respect to  any  such  finding  or  recommendation within thirty days of receipt of the audit, with notice and the basis of such  determination  being provided to the department of public service. Such  notice  and  basis  shall  be  posted  contemporaneously  on   the authority's  website  and  the  website  of the service provider and the board shall, within thirty days of such posting  and  with  due  advance notice  to  the  public,  hold  a  public  hearing  with  respect to its preliminary  determination  of  inconsistency.  At  such   hearing   the department  of public service or the independent auditor responsible for undertaking such audit shall present the  basis  for  its  findings  and recommendations   and   the  board  shall  present  the  basis  for  its determination of inconsistency and the service provider may  present  is position.  The  authority,  service  provider and auditor may during the time period prior to such public hearing  reach  agreement  on  disputed issues.  Within  thirty days after such public hearing, the board of the authority  shall  announce   its   final   determination   and   planned implementations    with    respect   to   any   such   findings   and/or recommendations. The authority's final  determination  of  inconsistency shall be subject to any applicable judicial review proceeding, including review  available  under article seventy-eight of the civil practice law and rules.   5. Notwithstanding the foregoing, in the event  that  a  comprehensive and  regular  management and operations audit as conducted in accordance with  this  subdivision  indicates  a  finding  of   fraud,   abuse   or mismanagement by a service provider of the authority, and upon a finding by  the  public  service commission that reasonable cause exists for the basis of such indication, the public service commission may  order  that any  recommendations  contained in the regular management and operations audit be implemented. The public service commission may also provide  in their order, the date in which the recommendations be fully implemented.  Failure  to comply with any such order can result in the imposition of a civil penalty by the  public  service  commission  against  the  service provider.  (cc)   To   prepare  an  emergency  response  plan  pursuant  to  this subdivision. 1. The service provider shall,  in  consultation  with  the authority, prepare and maintain an emergency response plan (i) to assure the reasonably prompt restoration of service in the case of an emergency event,  defined  for  purposes  of  this  subdivision  as an event where widespread outages have occurred in the  authority's  service  territory due  to  a storm or other causes beyond the control of the authority and the service provider, (ii) consistent with the requirements of paragraph (a) of subdivision twenty-one of section sixty-six of the public service law  and  any  regulations  and  orders  adopted  thereto,   and   (iii) establishing  the separate responsibilities of the authority and service provider.   2. On or before February third, two thousand fourteen,  the  authority and  service  provider  shall  submit  an emergency response plan to the department of public service for  review.  Contemporaneously  with  such submission,  the authority shall provide notice of such proposed plan to the secretary of state  for  publication  in  the  state  register,  the authority  and  service  provider  each  shall  post  such plan on their websites and otherwise make such plan available  for  review  in-person, and  afford  members  of  the  public  an  opportunity to submit written comments and oral comments pursuant to at least one hearing to  be  held each  in  the  county  of Suffolk and the county of Nassau. Such written comments must be submitted by March fourteenth, two  thousand  fourteen. The  authority  and service provider shall provide a copy of all written comments they receive and a transcript of such public  hearings  to  the department  of  public  service  for  its consideration in reviewing the emergency   response   plan.   The   department   shall   provide    any recommendations  to  the  authority and service provider with respect to such plan on or before April fifteenth, two thousand fourteen. Such plan must be made final by June second, two thousand fourteen. For each  year thereafter, the service provider shall submit an emergency response plan to  the  department of public service, and such department shall provide its recommendations, in accordance with a schedule to be established  by such department and that is consistent with the schedule associated with such  department's  review  of  similar  such plans provided by electric corporations pursuant to subdivision twenty-one of section sixty-six  of the public service law.   3.  By  June second, two thousand fourteen, and by June first annually thereafter, the authority and service provider shall jointly certify  to the  department  of  homeland  security  and emergency services that the emergency response plan ensures, to the greatest  extent  feasible,  the timely  and  safe  restoration  of  energy  services  after an emergency consistent  with  the  requirements  of  paragraph  (a)  of  subdivision twenty-one   of   the   public   service   law   and   the  department's recommendations. The filing of such emergency response plan  shall  also include  a  copy  of  all  written  mutual  assistance  agreements among utilities. The authority and service provider shall file with the county executives of Nassau and Suffolk county and the mayor of the city of New York the most recent version of the emergency response  plan,  and  make sure that such amended versions are timely filed.   4.  Starting  in  calendar  year  two  thousand  fourteen, the service provider annually shall  undertake  at  least  one  drill  to  implement procedures to practice its emergency response plan. The service provider shall  notify  and  allow participation in such drill of all appropriate municipal emergency responders and officials.    5. If, during an emergency event, electric service is not restored  in three  days,  the service provider shall within sixty days from the date of full restoration file with the department  a  report  constituting  a review  of  all  aspects  of  the  preparation  and  system  restoration performance   during   the   event,   and  shall  thereafter  take  into consideration any recommendations made by the department associated with such review.  (dd) On or before January first, two thousand fifteen, and by  January first  of  each  calendar  year  thereafter, to submit for review to the department of public service a report detailing the  service  provider's planned capital expenditures.  (ee)  On  or  before  July  first, two thousand fourteen, and annually thereafter, to submit for review to the department of public service any proposed  plan  related  to  implementing  energy  efficiency  measures, distributed  generation  or  advanced  grid  technology programs for the purpose provided pursuant to  paragraph  (g)  of  subdivision  three  of section three-b of the public service law.  (ff)  To  assist  and  cooperate with the department of public service with respect to any review undertaken pursuant to section three-b of the public service law, including providing the department  with  reasonable access to all facilities and premises owned or operated by the authority or its service provider, allowing review of all books and records of the authority  and  its  service  provider,  providing  copies  of requested documents,  allowing  interviews  of  all  appropriate  personnel,   and responding  in  a  reasonable  and  timely  manner  to  any inquiries or reporting requests made by the department; provided, however,  that  the obligations set forth in this subdivision shall not extend to affiliates of the service provider.  (gg)  Renewable  generation  and  energy  efficiency  programs. 1. The authority in coordination with the service provider, the power authority of the state of New York and the New  York  state  energy  research  and development  authority  shall,  to  the extent the authority's rates are sufficient to provide safe and adequate  transmission  and  distribution service,  and  the  measures  herein,  undertake  actions  to design and administer renewable  energy  and  energy  efficiency  measures  in  the service  area,  with  the goal of continuing and expanding such measures that cost-effectively reduce system-wide peak demand, minimize long-term fuel price risk to rate payers, lower emissions,  improve  environmental quality,   and   seek   to  meet  New  York  state  climate  change  and environmental goals. Such actions shall also include  implementation  of any  renewable energy competitive procurement or feed-in-tariff programs that were approved by the authority as of  the  effective  date  of  the chapter   of  the  laws  of  two  thousand  thirteen  which  added  this subdivision.   2. The service provider shall consider,  consistent  with  maintaining system  reliability,  renewable generation and energy efficiency program results and options in establishing capital plans.  (hh) Starting in calendar year two thousand fifteen, the authority and the service provider shall submit to the department  of  public  service for  review,  any  and all data, information and reports which set forth the service provider's actual performance related to the metrics in  the operations  services  agreement,  including  the  authority's evaluation thereof,  no  less  than  forty-five  days  prior  to  the   authority's determination of the service provider's annual incentive compensation.   * NB There are 2 § 1020-f's