A8538A-2011 Actions

• Apr 26, 2012: enacting clause stricken
• Mar 13, 2012: reported referred to ways and means
• Feb 22, 2012: print number 8538c
• Feb 22, 2012: amend and recommit to energy
• Feb 10, 2012: print number 8538b
• Feb 10, 2012: amend (t) and recommit to energy
• Jan 19, 2012: print number 8538a
• Jan 19, 2012: amend and recommit to energy
• Jan 4, 2012: referred to energy
• Jul 13, 2011: referred to energy

A8538A-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   8538--A

                         2011-2012 Regular Sessions

                            I N  ASSEMBLY

                                July 13, 2011
                                 ___________

  Introduced  by M. of A. GABRYSZAK, SCHIMMINGER -- read once and referred
    to the Committee on Energy -- recommitted to the Committee  on  Energy
    in  accordance  with  Assembly Rule 3, sec. 2 -- committee discharged,
    bill amended, ordered reprinted as amended  and  recommitted  to  said
    committee

  AN  ACT to amend the economic development law and the public authorities
    law, in relation to establishing the western New York  power  proceeds
    allocation board; and to repeal chapter 436 of the laws of 2010 amend-
    ing  the  public  authorities  law  and  the economic development law,
    relating to authorizing unallocated expansion or replacement power  to
    be allocated for western New York economic development fund benefits

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Short title.  This act shall be known as the  "western  New
  York power proceeds allocation act".
    S  2.  The economic development law is amended by adding a new article
  6-A to read as follows:

                                 ARTICLE 6-A
               WESTERN NEW YORK POWER PROCEEDS ALLOCATION ACT
  SECTION 189-A. DEFINITIONS.
          189-B. THE WESTERN NEW YORK POWER PROCEEDS ALLOCATION BOARD.
          189-C. GENERAL POWERS AND DUTIES OF THE BOARD.
          189-D. RULES AND REGULATIONS.
    S 189-A. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE  FOLLOWING
  TERMS  SHALL  HAVE  THE FOLLOWING MEANINGS:  1. "AUTHORITY" IS THE POWER
  AUTHORITY OF THE STATE OF NEW YORK.
    2. "BOARD" IS THE WESTERN NEW YORK  POWER  PROCEEDS  ALLOCATION  BOARD
  CREATED BY THIS ARTICLE.
    3.  "BENEFITS"  OR "FUND BENEFITS" ARE PAYMENTS TO APPLICANTS SELECTED
  IN ORDER TO FUND ELIGIBLE PROJECTS WITH MONIES DERIVED FROM NET EARNINGS

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD13201-04-2

 A. 8538--A                          2

  THAT HAVE BEEN DEPOSITED INTO THE WESTERN NEW YORK ECONOMIC  DEVELOPMENT
  FUND.
    4.  "CORPORATION"  IS THE NEW YORK STATE URBAN DEVELOPMENT CORPORATION
  DOING BUSINESS AS THE EMPIRE STATE DEVELOPMENT CORPORATION.
    5. "ELIGIBLE PROJECTS" ARE  ECONOMIC  DEVELOPMENT  PROJECTS  THAT  ARE
  LOCATED WITHIN A THIRTY-MILE RADIUS OF THE NIAGARA POWER PROJECT LOCATED
  IN  LEWISTON, NEW YORK THAT WILL SUPPORT THE GROWTH OF BUSINESSES IN THE
  STATE AND THEREBY LEAD TO THE CREATION OR MAINTENANCE OF  JOBS  AND  TAX
  REVENUES  FOR  THE STATE.  ELIGIBLE PROJECTS MAY INCLUDE CAPITAL INVEST-
  MENTS IN PLANT AND EQUIPMENT, AND ASSOCIATED BUILDINGS  AND  INFRASTRUC-
  TURE  (COLLECTIVELY,  "INFRASTRUCTURE")  OWNED  BY AN APPLICANT FOR FUND
  BENEFITS, INCLUDING TRANSPORTATION PROJECTS  UNDER  STATE  OR  FEDERALLY
  APPROVED  PLANS;  REMOVAL  OF  HAZARDOUS  OR  CONTAMINATED CONDITIONS AT
  INFRASTRUCTURE SITES; THE ACQUISITION OF LAND NEEDED FOR INFRASTRUCTURE;
  RESEARCH AND DEVELOPMENT WHERE THE RESULTS OF SUCH RESEARCH AND DEVELOP-
  MENT WILL DIRECTLY BENEFIT NEW  YORK  STATE;  SUPPORT  FOR  TOURISM  AND
  MARKETING AND ADVERTISING EFFORTS FOR WESTERN NEW YORK STATE TOURISM AND
  BUSINESS AND FOR OTHER SIMILAR USES AND ACTIVITIES. ELIGIBLE PROJECTS DO
  NOT  INCLUDE,  AND  FUND  BENEFITS  MAY NOT BE USED FOR, PUBLIC INTEREST
  ADVERTISING OR ADVOCACY; LOBBYING; THE  SUPPORT  OR  OPPOSITION  OF  ANY
  CANDIDATE  FOR  PUBLIC  OFFICE;  THE SUPPORT OR OPPOSITION TO ANY PUBLIC
  ISSUE; LEGAL FEES RELATED TO LITIGATION OF ANY KIND; EXPENSES RELATED TO
  ADMINISTRATIVE PROCEEDINGS BEFORE STATE OR LOCAL AGENCIES; RETAIL  BUSI-
  NESSES  AS  DEFINED  BY THE BOARD, INCLUDING, WITHOUT LIMITATION, SPORTS
  VENUES, GAMING AND  GAMBLING  OR  ENTERTAINMENT-RELATED  ESTABLISHMENTS,
  RESIDENTIAL  PROPERTIES,  OR  PLACES  OF OVERNIGHT ACCOMMODATION; OR FOR
  SIMILAR USES OR ACTIVITIES.
    6. "EXPANSION POWER" IS  THE  TWO  HUNDRED  FIFTY  MEGAWATTS  OF  FIRM
  NIAGARA  PROJECT HYDROELECTRIC POWER AND "REPLACEMENT POWER" IS THE FOUR
  HUNDRED FORTY-FIVE MEGAWATTS OF FIRM NIAGARA PROJECT HYDROELECTRIC POWER
  AS SUCH TERMS ARE DEFINED IN SUBDIVISION THIRTEEN OF SECTION  ONE  THOU-
  SAND  FIVE  OF THE PUBLIC AUTHORITIES LAW. FOR PURPOSES OF THIS SECTION,
  EXPANSION AND REPLACEMENT POWER INCLUDES THE ENERGY ASSOCIATED WITH SUCH
  POWER.   NOTWITHSTANDING ANY LAW, RULE, REGULATION,  OR  POLICY  TO  THE
  CONTRARY,  AS  OF  THE FIRST DAY OF JULY, TWO THOUSAND THIRTEEN THE TERM
  REPLACEMENT POWER AS USED IN THIS ARTICLE  INCLUDES  A  CERTAIN  SEVENTY
  MEGAWATTS  OF  POWER THAT IS REFERRED TO IN SECTION ONE THOUSAND FIVE OF
  THE PUBLIC AUTHORITIES LAW.
    7. "NET EARNINGS" IS THE AGGREGATE EXCESS OF REVENUES RECEIVED BY  THE
  POWER  AUTHORITY OF THE STATE OF NEW YORK FROM THE SALE OF EXPANSION AND
  REPLACEMENT POWER AND ENERGY PRODUCED AT THE NIAGARA  PROJECT  THAT  WAS
  SOLD  IN  THE WHOLESALE ENERGY MARKET OVER WHAT REVENUES WOULD HAVE BEEN
  RECEIVED HAD SUCH ENERGY BEEN SOLD ON A FIRM BASIS TO AN ELIGIBLE EXPAN-
  SION OR REPLACEMENT  POWER  CUSTOMER  UNDER  THE  APPLICABLE  TARIFF  OR
  CONTRACT.
    8. "WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND" OR "FUND" IS A FUND OF
  THE CORPORATION INTO WHICH ALL NET EARNINGS ARE DEPOSITED BY THE AUTHOR-
  ITY AND FROM WHICH ALLOCATIONS OF FUND BENEFITS TO ELIGIBLE PROJECTS MAY
  BE MADE.
    S  189-B.  THE  WESTERN  NEW  YORK POWER PROCEEDS ALLOCATION BOARD. 1.
  THERE IS HEREBY CREATED THE WESTERN NEW YORK POWER  PROCEEDS  ALLOCATION
  BOARD,  WHICH SHALL POSSESS THE POWERS AND DUTIES HEREIN SPECIFIED.  THE
  BOARD SHALL CONSIST OF FIVE MEMBERS WHO SHALL BE APPOINTED BY THE GOVER-
  NOR AS FOLLOWS:  ONE OF WHOM SHALL BE APPOINTED UPON THE  RECOMMENDATION
  OF  THE  TEMPORARY  PRESIDENT  OF THE SENATE AND SHALL RESIDE WITHIN THE
  30-MILE RADIUS OF THE NIAGARA POWER PROJECT AND ONE  OF  WHOM  SHALL  BE

 A. 8538--A                          3

  APPOINTED  UPON  THE  RECOMMENDATION  OF THE SPEAKER OF THE ASSEMBLY AND
  SHALL RESIDE WITHIN THE 30-MILE RADIUS OF THE NIAGARA POWER PROJECT.  AT
  LEAST  ONE ADDITIONAL MEMBER SHALL ALSO RESIDE WITHIN THE 30-MILE RADIUS
  OF THE NIAGARA POWER PROJECT.  THE GOVERNOR SHALL DESIGNATE A CHAIR FROM
  AMONGST THE BOARD'S MEMBERS.
    2.  EACH  MEMBER SHALL SERVE A TERM OF FIVE YEARS OR UNTIL A SUCCESSOR
  SHALL HAVE BEEN NAMED AND  QUALIFIED.  MEMBERS  MAY  BE  REAPPOINTED  TO
  SUCCESSIVE TERMS.
    3.   NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THREE
  MEMBERS SHALL CONSTITUTE A QUORUM FOR THE  PURPOSES  OF  ORGANIZING  THE
  BOARD  AND  CONDUCTING  THE BUSINESS THEREOF; AND NO ACTION OF THE BOARD
  MAY BE TAKEN EXCEPT UPON AN AFFIRMATIVE VOTE OF AT LEAST THREE-FIFTHS OF
  THE FULL BOARD MEMBERSHIP AT ANY MEETING AT WHICH AT LEAST THREE MEMBERS
  ARE PRESENT OR PARTICIPATING BY  VIDEOCONFERENCING.    VIDEOCONFERENCING
  MAY BE USED FOR ATTENDANCE AND PARTICIPATION BY MEMBERS OF THE BOARD. IF
  VIDEOCONFERENCING  IS  USED,  THE BOARD SHALL PROVIDE AN OPPORTUNITY FOR
  THE PUBLIC TO ATTEND, LISTEN AND OBSERVE AT ANY SITE AT WHICH  A  MEMBER
  PARTICIPATES. THE PUBLIC NOTICE FOR THE MEETING SHALL IDENTIFY, IF PRAC-
  TICABLE, ALL LOCATIONS WHERE A MEMBER WILL PARTICIPATE IN THE MEETING BY
  VIDEOCONFERENCE  AND SHALL STATE THAT THE PUBLIC HAS THE RIGHT TO ATTEND
  THE MEETING AT ANY SUCH LOCATION.
    4. MEMBERS OF THE BOARD, EXCEPT THOSE THAT ARE EMPLOYEES  OR  OFFICERS
  OF THE STATE, ITS AUTHORITIES OR AGENCIES, SHALL NOT RECEIVE A SALARY OR
  OTHER  COMPENSATION,  BUT  SHALL  BE  ALLOWED  THE  NECESSARY AND ACTUAL
  EXPENSES INCURRED IN THE PERFORMANCE OF DUTIES UNDER THIS ARTICLE.
    S 189-C. GENERAL POWERS AND DUTIES OF THE  BOARD.  1.  THE  BOARD  MAY
  ADOPT RULES AND REGULATIONS RELATING TO THE ACTIVITIES OF THE BOARD.
    2.  THE  BOARD,  OR  A  MEMBER DESIGNATED BY THE BOARD, SHALL PREPARE,
  DISTRIBUTE AND RECEIVE ALL APPLICATIONS FROM, OR ON  BEHALF  OF,  APPLI-
  CANTS  FOR  FUND  BENEFITS.  APPLICATIONS SHALL BE IN A FORM AND CONTAIN
  SUCH INFORMATION, DATA AND EXHIBITS AS THE BOARD, IN  CONSULTATION  WITH
  THE AUTHORITY AND THE CORPORATION, MAY PRESCRIBE.
    3.    THE  BOARD MAY REQUEST FROM THE AUTHORITY AND THE CORPORATION AN
  ANALYSIS OF ALL SUCH APPLICATIONS ALONG  WITH  ANY  RECOMMENDATIONS.  IN
  ADDITION, THE BOARD MAY REQUEST, IN WHICH CASE AND THE AUTHORITY AND THE
  CORPORATION  SHALL  SUPPLY, SUCH ADDITIONAL INFORMATION AS IS REASONABLY
  NECESSARY FOR THE BOARD TO PERFORM ITS DUTIES.
    4. THE BOARD SHALL ESTABLISH A PROCEDURE FOR THE  REVIEW  OF  APPLICA-
  TIONS  FOR  FUND BENEFITS THAT SHALL INCLUDE A REVIEW OF APPLICATIONS NO
  LESS FREQUENTLY THAN TWICE EACH YEAR.
    5. IN EVALUATING APPLICATIONS FOR FUND BENEFITS, THE BOARD  SHALL  USE
  THE CRITERIA FOR ELIGIBILITY FOR EXPANSION, REPLACEMENT AND PRESERVATION
  POWER, AND FOR REVITALIZATION OF INDUSTRY, PROVIDED IN SECTION ONE THOU-
  SAND  FIVE  OF  THE PUBLIC AUTHORITIES LAW. IN ADDITION, THE BOARD SHALL
  CONSIDER THE EXTENT TO WHICH AN AWARD OF  FUND  BENEFITS  IS  CONSISTENT
  WITH  ANY  REGIONAL  ECONOMIC DEVELOPMENT COUNCIL STRATEGIES AND PRIORI-
  TIES.
    6. THE BOARD SHALL RECOMMEND TO THE CORPORATION THE ALLOCATION OF FUND
  BENEFITS TO ELIGIBLE PROJECTS THAT THE  BOARD  BELIEVES  BEST  MEET  THE
  APPLICABLE CRITERIA.
    THE BOARD MAY INCLUDE WITHIN ITS RECOMMENDATIONS SUCH TERMS AND CONDI-
  TIONS AS IT DEEMS APPROPRIATE, INCLUDING, BUT NOT LIMITED TO, REASONABLE
  PROVISION FOR THE ALLOCATION OF FUND BENEFITS OVER TIME AS THE APPLICANT
  ACHIEVES  MILESTONES TOWARDS PROJECT COMPLETION, THE PARTIAL OR COMPLETE
  WITHDRAWAL OR RETURN OF FUND BENEFITS WHERE THE RECIPIENT HAS FAILED  TO

 A. 8538--A                          4

  ACHIEVE  OR  MAINTAIN  MUTUALLY  AGREED  UPON COMMITMENTS, OR SUCH OTHER
  TERMS AND CONDITIONS AS THE BOARD DEEMS ADVISABLE.
    7.  A  RECOMMENDATION  BY THE BOARD THAT AN APPLICANT RECEIVE AN ALLO-
  CATION OF FUND BENEFITS SHALL BE A PREREQUISITE  TO  AN  AWARD  OF  FUND
  BENEFITS  BY THE CORPORATION.  THE CORPORATION SHALL AWARD FUND BENEFITS
  TO AN APPLICANT UPON A FAVORABLE RECOMMENDATION OF THE  BOARD,  PROVIDED
  HOWEVER  THAT  UPON  A SHOWING OF GOOD CAUSE, THE CORPORATION SHALL HAVE
  DISCRETION AS TO WHETHER TO ADOPT  THE  BOARD'S  RECOMMENDATION,  OR  TO
  AWARD  BENEFITS  IN A DIFFERENT AMOUNT AND ON DIFFERENT TERMS AND CONDI-
  TIONS THAN THOSE CONTAINED IN THE RECOMMENDATION OF THE BOARD.
    8. UPON MAKING AN ALLOCATION OF FUND BENEFITS, THE  CORPORATION  SHALL
  INCLUDE  WITHIN  THE  AGREEMENT  PROVIDING  FOR THE TERMS AND CONDITIONS
  APPLICABLE TO SUCH ALLOCATION ALL TERMS AND CONDITIONS  THE  CORPORATION
  BELIEVES  ARE  APPROPRIATE, TAKING INTO ACCOUNT THE RECOMMENDATIONS MADE
  BY THE BOARD.
    S 189-D. RULES AND REGULATIONS. THE CORPORATION IS  HEREBY  AUTHORIZED
  TO  PROMULGATE  RULES  AND  REGULATIONS  AS ARE NECESSARY TO FULFILL THE
  PURPOSES OF THIS ARTICLE.
    S 3. Section 100 of the economic development law is amended by  adding
  three new subdivisions 26-a, 26-b and 26-c to read as follows:

    26-A.  TO  PROVIDE ALL NECESSARY STAFF SERVICES, ACCOUNTING, CLERICAL,
  AND SECRETARIAL  ASSISTANCE,  OFFICE  SPACE,  AND  EQUIPMENT  REASONABLY
  REQUESTED BY THE WESTERN NEW YORK POWER PROCEEDS ALLOCATION BOARD.
    26-B.  TO  ESTABLISH  APPLICATION,  APPLICATION  REVIEW AND ALLOCATION
  PROCESSES FOR NET EARNINGS PROVIDED FOR  UNDER  ARTICLE  SIX-A  OF  THIS
  CHAPTER.
    26-C.   TO ESTABLISH A SEPARATE ACCOUNT TO BE KNOWN AS THE WESTERN NEW
  YORK ECONOMIC DEVELOPMENT FUND. REASONABLE COSTS  AND  EXPENSES  OF  THE
  CORPORATION  RELATED TO MANAGEMENT AND ADMINISTRATION OF THE WESTERN NEW
  YORK ECONOMIC DEVELOPMENT FUND MAY BE PAID OUT OF THE WESTERN  NEW  YORK
  ECONOMIC DEVELOPMENT FUND.
    S  4.  Section 1005 of the public authorities law is amended by adding
  four new subdivisions 19, 20, 21 and 22 to read as follows:

    19. TO COOPERATE WITH THE WESTERN NEW YORK POWER  PROCEEDS  ALLOCATION
  BOARD  AND PROVIDE THE BOARD WITH SUCH INFORMATION AND ASSISTANCE AS THE
  BOARD REASONABLY REQUESTS.
    20. AS DEEMED FEASIBLE AND ADVISABLE BY THE TRUSTEES, TO ALLOCATE  AND
  DEPOSIT  "NET  EARNINGS" AS DEFINED IN SECTION ONE HUNDRED EIGHTY-NINE-A
  OF THE ECONOMIC DEVELOPMENT LAW  INTO  THE  WESTERN  NEW  YORK  ECONOMIC
  DEVELOPMENT  FUND  ACCOUNT TO BE ESTABLISHED BY THE NEW YORK STATE URBAN
  DEVELOPMENT CORPORATION.  SUCH  EARNINGS  SHALL  BE  DEPOSITED  NO  LESS
  FREQUENTLY THAN QUARTERLY. THE FIRST PAYMENT INTO THE FUND SHALL BE MADE
  NINETY  DAYS  AFTER  THE  EFFECTIVE  DATE OF THIS SUBDIVISION, AND SHALL
  INCLUDE ALL SUCH NET EARNINGS ACCRUED SINCE THE EFFECTIVE DATE OF  CHAP-
  TER FOUR HUNDRED THIRTY-SIX OF THE LAWS OF TWO THOUSAND TEN.
    21. THE AUTHORITY MAY, IN ITS DISCRETION, CONSULT WITH THE WESTERN NEW
  YORK POWER PROCEEDS ALLOCATION BOARD IN THE APPLICATION PROCESS RELATING
  TO THE ALLOCATION OF EXPANSION POWER AND REPLACEMENT POWER.
    22. THE AUTHORITY SHALL INCLUDE IN THE ANNUAL REPORT PREPARED PURSUANT
  TO  SUBDIVISION  EIGHTEEN OF THIS SECTION, AN ACCOUNTING FOR THE SUBJECT
  YEAR THAT PROVIDES (A) THE AMOUNT OF  EXPANSION  POWER  AND  REPLACEMENT
  POWER  SOLD  INTO THE WHOLESALE MARKET BY THE AUTHORITY, AND (B) THE NET
  EARNINGS, AS SUCH TERM IS DEFINED IN SECTION ONE  HUNDRED  EIGHTY-NINE-A
  OF THE ECONOMIC DEVELOPMENT LAW, PAID INTO THE WESTERN NEW YORK ECONOMIC
  DEVELOPMENT FUND.

 A. 8538--A                          5

    S  5.  Chapter 436 of the laws of 2010 amending the public authorities
  law and the economic development law, relating  to  authorizing  unallo-
  cated  expansion  or  replacement  power to be allocated for western New
  York economic development fund benefits is REPEALED.
    S 6. This act shall take effect immediately.