NY Econ Dev L § 188-A (2021)
2021 New York Laws COM - Economic Development Law Article 6 - New York State Economic Development Power Allocation Board 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megawatts of firm hydroelectric power from the  Niagara  and  Saint  Lawrence  hydroelectric  projects  to  be withdrawn from utility corporations that, prior to the effective date of this section, purchased such power for the benefit of their domestic and rural  consumers 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.