2023 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withdrawn from utility corporations that, prior to the effective date of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.