Actions

Text

STATE OF NEW YORK
________________________________________________________________________

8538--B

2011-2012 Regular Sessions

IN 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  --  again  reported  from  said  committee with amendments,
  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
  relating thereto

  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13201-06-2
A. 8538--B                          2

  3.  "BENEFITS"  OR "FUND BENEFITS" ARE PAYMENTS TO APPLICANTS SELECTED
IN ORDER TO FUND ELIGIBLE PROJECTS WITH MONIES DERIVED FROM NET EARNINGS
THAT HAVE BEEN DEPOSITED INTO THE WESTERN NEW YORK ECONOMIC  DEVELOPMENT
FUND.
  4.  "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;  AND  ENERGY-RELATED
PROJECTS.    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  BUSINESSES  AS DEFINED BY THE BOARD, INCLUDING
WITHOUT LIMITATION, SPORTS VENUES, GAMING  AND  GAMBLING  OR  ENTERTAIN-
MENT-RELATED  ESTABLISHMENTS, RESIDENTIAL PROPERTIES, OR PLACES OF OVER-
NIGHT ACCOMMODATION; OR FOR  SIMILAR  USES  OR  ACTIVITIES  OR  FOR  THE
REMOVAL  OF HAZARDOUS OR CONTAMINATED CONDITIONS AT INFRASTRUCTURE SITES
WHERE SUCH CONDITIONS WERE THE RESULT OF AN APPLICANT'S ACTIVITIES.
  5. "ENERGY-RELATED PROJECTS, PROGRAMS AND  SERVICES"  SHALL  HAVE  THE
SAME  MEANING  AS  SUCH TERM IS DEFINED IN SUBPARAGRAPH TWO OF PARAGRAPH
(B) OF SUBDIVISION SEVENTEEN OF SECTION ONE THOUSAND FIVE OF THE  PUBLIC
AUTHORITIES LAW.
  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  TWELVE  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 AUTHORITY INTO WHICH ALL NET EARNINGS ARE DEPOSITED BY THE AUTHORITY
AND FROM WHICH ALLOCATIONS OF FUND BENEFITS TO ELIGIBLE PROJECTS MAY  BE
MADE.
A. 8538--B                          3

  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
THIRTY MILE RADIUS OF THE NIAGARA POWER PROJECT AND ONE OF WHOM SHALL BE
APPOINTED  UPON  THE  RECOMMENDATION  OF THE SPEAKER OF THE ASSEMBLY AND
SHALL RESIDE WITHIN THE THIRTY MILE RADIUS OF THE NIAGARA POWER PROJECT.
AT LEAST ONE ADDITIONAL MEMBER SHALL ALSO RESIDE WITHIN THE THIRTY  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 SHALL
ADOPT RULES AND REGULATIONS RELATING TO THE ACTIVITIES OF THE BOARD.
  2. THE BOARD SHALL ADOPT RULES AND REGULATIONS AND ESTABLISH A  PROCE-
DURE  FOR REVIEWING APPLICATIONS FOR AN ALLOCATION OF FUND BENEFITS THAT
SHALL INCLUDE A REVIEW OF APPLICATIONS NO  LESS  FREQUENTLY  THAN  TWICE
EACH  YEAR.    THE  BOARD,  OR  A  MEMBER DESIGNATED BY THE BOARD, SHALL
RECEIVE ALL APPLICATIONS FROM, OR ON  BEHALF  OF,  APPLICANTS  FOR  FUND
BENEFITS.  APPLICATIONS SHALL BE IN A FORM AND CONTAIN SUCH INFORMATION,
DATA AND EXHIBITS AS THE BOARD, IN CONSULTATION WITH THE AUTHORITY,  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. 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. THE BOARD SHALL ISSUE A WRITTEN  STATEMENT  OF  ITS  FINDINGS  AND
CONCLUSIONS FOR EACH APPLICATION REVIEWED.
A. 8538--B                          4

  5. THE BOARD SHALL RECOMMEND TO THE CORPORATION THE ALLOCATION OF FUND
BENEFITS  TO  ELIGIBLE  PROJECTS  THAT  THE BOARD BELIEVES BEST MEET THE
APPLICABLE CRITERIA IN SUBDIVISION FOUR OF THIS SECTION.  THE BOARD  MAY
INCLUDE WITHIN ITS RECOMMENDATIONS SUCH TERMS AND CONDITIONS AS IT DEEMS
APPROPRIATE, INCLUDING, BUT NOT LIMITED TO, REASONABLE PROVISION FOR THE
ALLOCATION  OF  FUND  BENEFITS OVER TIME AS THE APPLICANT ACHIEVES MILE-
STONES TOWARDS PROJECT COMPLETION, THE PARTIAL OR COMPLETE WITHDRAWAL OR
RETURN OF FUND BENEFITS WHERE THE RECIPIENT HAS  FAILED  TO  ACHIEVE  OR
MAINTAIN  MUTUALLY  AGREED  UPON  COMMITMENTS,  OR  SUCH OTHER TERMS AND
CONDITIONS AS THE BOARD DEEMS ADVISABLE.
  6. 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 AUTHORITY.  THE AUTHORITY SHALL AWARD FUND  BENEFITS  TO
AN  APPLICANT  UPON A RECOMMENDATION OF THE BOARD, PROVIDED HOWEVER THAT
UPON A SHOWING OF GOOD CAUSE, THE AUTHORITY 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  CONDITIONS  THAN  THOSE
CONTAINED IN THE RECOMMENDATION OF THE BOARD.
  7.  UPON  MAKING  AN  ALLOCATION OF FUND BENEFITS, THE AUTHORITY SHALL
INCLUDE WITHIN THE AGREEMENT PROVIDING  FOR  THE  TERMS  AND  CONDITIONS
APPLICABLE  TO  SUCH  ALLOCATION  ALL TERMS AND CONDITIONS THE AUTHORITY
DEEMS APPROPRIATE, TAKING INTO ACCOUNT THE RECOMMENDATIONS MADE  BY  THE
BOARD.
  S  189-D. RULES AND REGULATIONS. THE AUTHORITY IS HEREBY AUTHORIZED TO
PROMULGATE RULES  AND  REGULATIONS  AS  ARE  NECESSARY  TO  FULFILL  THE
PURPOSES OF THIS ARTICLE.
  S  3.  Section 1005 of the public authorities law is amended by adding
five new subdivisions 19, 20, 21, 22 and 23 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 INCLUDING REASONABLE STAFF SERVICES,  ACCOUNT-
ING,  CLERICAL  AND  SECRETARIAL ASSISTANCE, OFFICE SPACE, AND EQUIPMENT
REASONABLY REQUESTED BY THE WESTERN NEW YORK POWER  PROCEEDS  ALLOCATION
BOARD TO FULFILL ITS DUTIES.
  20.  TO  ESTABLISH  AN  ACCOUNT  TO  BE  KNOWN AS THE WESTERN NEW YORK
ECONOMIC DEVELOPMENT FUND, WHICH SHALL  CONSIST  OF  "NET  EARNINGS"  AS
DEFINED  IN ARTICLE SIX-A OF THE ECONOMIC DEVELOPMENT LAW. 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 CHAPTER FOUR HUNDRED THIRTY-SIX OF  THE  LAWS  OF  TWO
THOUSAND  TEN.  AT  LEAST  TEN  PERCENT OF SUCH FUNDS SHALL BE DEDICATED
TOWARDS ELIGIBLE PROJECTS WHICH ARE  ENERGY-RELATED  PROJECTS,  PROGRAMS
AND  SERVICES  AS  SUCH TERM IS DEFINED IN SUBPARAGRAPH TWO OF PARAGRAPH
(B) OF SUBDIVISION SEVENTEEN OF SECTION ONE THOUSAND FIVE OF THIS  CHAP-
TER.  IN  ADDITION  TO  FUNDING ELIGIBLE PROJECTS, AS DEFINED IN ARTICLE
SIX-A OF THE ECONOMIC DEVELOPMENT LAW, THE AUTHORITY MAY USE WESTERN NEW
YORK ECONOMIC DEVELOPMENT FUND MONIES  TO  COVER  REASONABLE  COSTS  AND
EXPENSES  OF  THE AUTHORITY RELATED TO THE MANAGEMENT AND ADMINISTRATION
OF SUCH FUND.
  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 ESTABLISH PROCESSES FOR APPLICATION REVIEW AND
ALLOCATION OF FUND BENEFITS PROVIDED IN ARTICLE SIX-A  OF  THE  ECONOMIC
DEVELOPMENT LAW.
A. 8538--B                          5

  23. 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.
  S 4. 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 5. This act shall take effect immediately.