Bill S5407-2011

Relates to establishing the western New York power proceeds allocation board; repealer

Relates to establishing the western New York power proceeds allocation board.

Details

Actions

  • Jan 4, 2012: REFERRED TO ENERGY AND TELECOMMUNICATIONS
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • Jun 16, 2011: referred to energy
  • Jun 16, 2011: DELIVERED TO ASSEMBLY
  • Jun 16, 2011: PASSED SENATE
  • Jun 1, 2011: ADVANCED TO THIRD READING
  • May 25, 2011: 2ND REPORT CAL.
  • May 24, 2011: 1ST REPORT CAL.847
  • May 18, 2011: REFERRED TO ENERGY AND TELECOMMUNICATIONS

Meetings

Votes

VOTE: COMMITTEE VOTE: - Energy and Telecommunications - May 24, 2011
Ayes (8): Maziarz, Alesi, Fuschillo, O'Mara, Ritchie, Robach, Parker, Kennedy
Ayes W/R (3): Griffo, Adams, Gianaris
Nays (1): Kruger

Memo

BILL NUMBER:S5407               REVISED 05/26/11

TITLE OF BILL: An act to amend the economic development law, the public authorities law and the state finance law, in relation to establishing the western New York power proceeds allocation board; and to repeal chapter 436 of the laws of 2010 amending 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

PURPOSE: To require the Power Authority (NYPA) to fully implement Chapter 436 of the laws of 2010 and the provisions of a Memorandum of Understanding from 2003; to clarify certain ambiguities that might exist in Chapter 436; and to establish a sound basis to go forward with recommendation for power allocations and the binding recommendations for the allocation of the Net Earnings from the sale of certain hydro-power from the Niagara Power Project.

SUMMARY OF PROVISIONS: Section 2 adds a new Article 6-a to the Economic Development law that:

o Creates the Western New York Power Proceeds Allocation Board that shall have six members appointed by the Governor on the recommendation of agencies that conduct economic development activities in Western New York, and specifies its powers and duties;

o Authorizes the Board to recommend to the Empire State Development Corporation (ESDC) how certain proceeds from the sale of Niagara Project Hydro-Electric expansion and replacement power ("Net Earnings") are to be granted to certain entities for economic development purposes;

o Defines economic development power for purposes of this act to include 250 MW of Expansion Power and 445 MW of Replacement Power and specifies that Replacement Power includes a certain 70 MW of Niagara Power Project that had formally been made available for other purposes;

o Authorizes the new Board to issue its own applications and conduct its own reviews;

o Requires the Board to develop an economic development plan that will guide it in the allocation of net earnings or to use an economic development plan that may be adopted by the Western New York Regional Economic Development Council, if such Council is created;

o Establishes certain criteria for use by the Board in allocating Net Earnings including economic impact, compliance with prior awards, compliance with regional economic development plans and similar criteria;

o Provides that funds can be used for certain purposes ("Eligible Projects") that must be within 30 miles of the Niagara Power project including capital investments, training, hazardous waste remediation, infrastructure, land acquisition, and certain research and development.

It also provides that funds may not be used for advertising or advocacy lobbying, political purposes, debates or discussions of public issues, legal fees, or fees related to any administrative proceeding;

o Requires NYPA to provide a full accounting of all power sales, the funds derived there from and other information;

o Requires NYPA to transfer all Net Earnings to a new fund to be held by ESDC;

o Requires NYPA to cooperate in the review and allocation process for all economic development funds;

o Directs ESDC to provide staff and other support that may be needed;

o Provides that no funds derived from these Net Earnings may be spent by NYPA or ESDC except upon the recommendation of the Board; and

o Involves ESDC in a formal role in the allocation of economic development funds.

Section 3 adds to the unconsolidated laws:

o The Western New York Hydro-Power Allocation Advisory Group that is similar in powers, duties and structure to the Western New York Advisory Group that was established in a Memorandum of Understanding signed by NYPA in 2003 and is also similar to the Western New York Power Proceeds Allocation Board;

o Provides that the New York Hydro-Power Allocation Advisory Group is to work through NYPA or ESDC to make recommendations to NYPA regarding the reallocation of certain categories of Niagara Project Expansion and Replacement Power; and

o That the Trustees of NYPA are to consider, but not be bound by, the recommendations of the Advisory Group.

Sections 4 and 5, authorizes and directs NYPA and ESDC to carry out certain activities related to the duties of the Western New York Power Proceeds Allocation Board and the Western New York HydroPower Allocation Advisory Group.

Section 6 repeals Chapter 436 of the Laws of 2010.

JUSTIFICATION:

BACKGROUND The Niagara Power Project that is operated by the Power Authority of the State of New York ("NYPA") has two large blocks of hydro-electric power that total 695 megawatts ("MW") available for sale to industries within 30 miles of the Niagara Power Project in Lewiston New York.

In 2003, in order to better coordinate the reallocation of this power to industries, NYPA entered into a Memorandum of Understanding (112003 MOU") with what became called the Western New York Advisory Group ("WNYAG") that included Erie and Niagara County based economic

development agencies. The 2003 MOU spelled out a procedure by which NYPA would inform the WNYAG that economic development power was available, that applications had been received for such power, and that the WNYAG should comment upon and make recommendations regarding such applications for the allocation of power. Although the MOU expired in 2006, the parties, including NYPA, continued to act as though the MOU remained in effect.

Chapter 436 of the Laws of 2010 added to the duties of the WNYAG by providing that the WNYAG should recommend to NYPA that certain excess revenues earned by NYPA should be allocated to industries within 30 miles of the Power Project to support and induce economic development. The revenues affected by this law were any revenues earned by NYPA from the sale of Niagara Project economic development power on the open market (rather than to an industrial customer) to the extend such revenues exceed revenues that would have been earned by NYPA if such power had been sold to qualified industrial customers. Chapter 436 of the Laws of 2010 specifically referred to the 2003 MOU and by reference revived it and granted it additional powers.

Unlike the 2003 MOU where the recommendations of the WNYAG were advisory only (regarding power allocations), the 2010 law was binding upon NYPA with regard to the use of the proceeds from the sale of expansion and replacement power. This was accomplished by providing that NYPA could not use such excess revenues for any purpose other than as recommended by the WNYAG.

POWER AUTHORITY RESPONSE TO 2010 LAW Until passage of Chapter 436 of the Laws of 2010, there was good cooperation between NYPA and other members of the WNYAG. This cooperation has continued with regard to the recommendations for the allocation of hydropower to industries. However, NYPA has refused to cooperate in the implementation of Chapter 436. In an exchange of letters initiated by the WNYAG aimed at the cooperative implementation of the new law, NYPA has:

o contested the existence of the WNYAG, o refused to provide information requested by the WNYAG and state legislators that is needed to determine the extent that funds have been generated, o refused repeated requests for meetings, o refused to supply applications that may have been submitted by companies, and o been uncooperative with the WNYAG including with the Empire State Development Corporation, a member of the WNYAG.

At this point there is a complete impasse, in which NYPA has refused to implement the clear statutory directives of Chapter 436 of the Laws of 2010.

JUSTIFICATION FOR 2011 PROPOSAL: In order to emphasize the intent of the Legislature, to clarify certain ambiguities that might exist in the 2010 law, and to establish a sound basis to go forward with the recommendation for power allocations and the more binding recommendations for the allocation of excess revenues, it has been

decided that a bill should be introduced and passed in the 2011 session of the Legislature.

This legislation is made necessary because of NYPA's refusal to carry out the clear intent of Chapter 436 of the Laws of 2010.

This legislation will continue the process by which expansion and replacement power allocations are undertaken with the advice of economic development agencies located in Western New York. This gives greater assurance that the State's and regions' economic development activities are coordinated and thus more likely to obtain positive results.

The legislation will allow local economic development agencies through a regional collaborative decision making process to fully participate in the allocation of revenues derived from the sale of expansion and replacement power. Certain amounts of this power when not otherwise being used are now sold on the open market to users outside Western New York. These open market sales are usually at a higher price than the price charged to expansion and replacement power customers. This bill assures that the benefits of expansion and replacement power will remain within the 30 mile limit already established in law for the allocation of such power. The bill guarantees that NYPA will continue to receive the revenues it would have received if all Expansion and Replacement Power was sold to eligible Expansion and Replacement Power customers. Revenues derived from the sale of Expansion and Replacement power on the open market, to the extent such revenues exceed revenues that would have been earned if the Replacement and Expansion Power had been sold at the applicable Expansion and Replacement Power rates, are to be placed in the Western New York Economic Development Fund.

LEGISLATIVE HISTORY: New bill, but follows passage of Chapter 436 of the Laws of 2010 (A.8712A)

FISCAL IMPLICATIONS: None to the state. No new fiscal implications to NYPA. This bill does not alter the fiscal impact imposed upon NYPA by Chapter 436 of the Laws of 2010.

EFFECTIVE DATE: Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 5407 2011-2012 Regular Sessions IN SENATE May 18, 2011 ___________
Introduced by Sens. MAZIARZ, KENNEDY -- read twice and ordered printed, and when printed to be committed to the Committee on Energy and Tele- communications AN ACT to amend the economic development law, the public authorities law and the state finance law, in relation to establishing the western New York power proceeds allocation board; and to repeal chapter 436 of the laws of 2010 amending 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 devel- opment 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. ADVISORY GROUP. 189-E. MISCELLANEOUS PROVISIONS. S 189-A. DEFINITIONS. 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 ELIGIBLE PROJECTS THAT ARE DERIVED FROM NET EARNINGS 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. ELIGIBLE PROJECTS INCLUDE, BUT ARE NOT LIMITED TO, CAPITAL INVESTMENTS IN PLANT AND EQUIPMENT AND DIRECTLY RELATED SOFT COSTS OF SUCH CAPITAL INVESTMENTS; TRAINING AND THE IMPROVEMENT OF WORK- ER PRODUCTIVITY; REMOVAL OF HAZARDOUS OR CONTAMINATED CONDITIONS; INFRASTRUCTURE PROJECTS INCLUDING, BUT NOT LIMITED TO, ROADS, RAIL LINES, WATER, SEWER, TELECOMMUNICATIONS, AND OTHER UTILITY EXTENSIONS, EXPANSIONS OR IMPROVEMENTS; THE ACQUISITION OF LAND NEEDED FOR A PROJECT; RESEARCH AND DEVELOPMENT WHERE THE RESULTS OF SUCH RESEARCH AND DEVELOPMENT WILL DIRECTLY BENEFIT NEW YORK STATE; 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 LITI- GATION OF ANY KIND; EXPENSES RELATED TO ADMINISTRATIVE PROCEEDINGS BEFORE STATE OR LOCAL AGENCIES; 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 ALL ENERGY ASSOCIATED WITH SUCH POWER. NOTWITHSTANDING ANY LAW, RULE, REGULATION, OR POLICY TO THE CONTRARY, 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 POWER AND ENERGY MARKET OVER WHAT REVENUES WOULD HAVE BEEN RECEIVED HAD SUCH POWER AND ENERGY BEEN SOLD ON A FIRM BASIS TO AN ELIGIBLE EXPANSION OR REPLACEMENT POWER CUSTOMER UNDER THE APPLI- CABLE 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 ARE 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 AND ALL THE POWERS NECESSARY OR PROPER TO CARRY OUT THE PURPOSES OF THIS ARTICLE. THE BOARD SHALL CONSIST OF SIX MEMBERS WHO SHALL BE APPOINTED BY THE GOVERNOR AS FOLLOWS: (A) ONE MEMBER APPOINTED BY THE GOVERNOR SHALL BE THE REGIONAL DIRECTOR OF THE EMPIRE STATE DEVELOPMENT CORPO- RATION FOR WESTERN NEW YORK; (B) ONE MEMBER APPOINTED BY THE GOVERNOR SHALL BE NOMINATED BY THE CHAIR OF THE ERIE COUNTY INDUSTRIAL DEVELOP- MENT AGENCY; (C) ONE MEMBER APPOINTED BY THE GOVERNOR SHALL BE NOMINATED BY THE CHAIR OF THE NIAGARA COUNTY INDUSTRIAL DEVELOPMENT AGENCY; (D) ONE MEMBER APPOINTED BY THE GOVERNOR SHALL BE NOMINATED BY THE CHAIR OF THE BOARD OF BUFFALO-NIAGARA ENTERPRISE; (E) ONE MEMBER APPOINTED BY THE GOVERNOR SHALL BE THE REGIONAL EXECUTIVE OF THE NATIONAL GRID COMPANY; AND (F) ONE MEMBER APPOINTED BY THE GOVERNOR SHALL BE NOMINATED BY THE CHAIR OF THE AUTHORITY.
EACH SUCH BOARD MEMBER SHALL BE AUTHORIZED TO APPOINT AN ALTERNATE BOARD MEMBER TO SERVE IN THEIR ABSENCE FROM TIME TO TIME. ALTERNATE BOARD MEMBERS SHALL BE COUNTED AS PRESENT FOR THE DETERMINATION OF A QUORUM, TO VOTE, TO FULLY PARTICIPATE IN MEETINGS, AND TO TAKE ALL SUCH OTHER ACTIONS AS A BOARD MEMBER, EXCEPT THAT THEY MAY NOT APPOINT ADDI- TIONAL ALTERNATE BOARD MEMBERS. A BOARD MEMBER MAY REMOVE OR REPLACE THEIR ALTERNATE BOARD MEMBER AT ANY TIME, FOR ANY REASON, AND MAY LATER REAPPOINT SUCH ALTERNATE BOARD MEMBER. 2. THE GOVERNOR SHALL DESIGNATE A CHAIR AND VICE CHAIR FROM AMONGST THE MEMBERS. THE BOARD MEMBERS MAY SELECT SUCH OTHER OFFICERS AS THEY DEEM ADVISABLE. 3. EACH MEMBER SHALL SERVE A TERM OF THREE YEARS OR UNTIL A SUCCESSOR SHALL HAVE BEEN NAMED AND QUALIFIED. MEMBERS MAY BE REAPPOINTED TO SUCCESSIVE TERMS. 4. FOUR MEMBERS SHALL CONSTITUTE A QUORUM FOR THE PURPOSES OF ORGANIZ- ING THE BOARD AND CONDUCTING THE BUSINESS THEREOF; AND NO ACTION OF THE BOARD MAY BE TAKEN EXCEPT UPON THE AFFIRMATIVE VOTE OF AT LEAST FOUR MEMBERS. 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 MEET- ING SHALL IDENTIFY, IF PRACTICABLE, 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. 5. 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 PREPARE, DISTRIBUTE AND RECEIVE ALL APPLICATIONS FROM, OR ON BEHALF OF, ELIGIBLE PROJECTS FOR THE ALLOCATION OR REALLO- CATION OF FUND BENEFITS, AS THIS TERM IS DEFINED IN SUBDIVISION THREE OF SECTION ONE HUNDRED EIGHTY-NINE-A OF THIS ARTICLE. APPLICATIONS SHALL BE IN A FORM AND CONTAIN SUCH INFORMATION, DATA AND EXHIBITS AS THE BOARD MAY PRESCRIBE. THE BOARD MAY BY RESOLUTION DIRECT THAT APPLICATIONS BE SUBMITTED ON BEHALF OF THE BOARD TO THE CORPORATION OR TO ANY PUBLIC SECTOR ENTITY THAT HAS THE RIGHT UNDER THIS ARTICLE TO NOMINATE A BOARD MEMBER TO THE GOVERNOR. 3. FUND BENEFITS MAY BE ALLOCATED TO ELIGIBLE PROJECTS THAT ARE SPON- SORED BY FOR-PROFIT BUSINESS ENTITIES, NOT-FOR-PROFIT ENTITIES, SUBDIVI- SIONS OF THE STATE, PUBLIC BENEFIT CORPORATIONS, OR PUBLIC AUTHORITIES. 4. THE BOARD SHALL SUBMIT COPIES OF ALL SUCH APPLICATIONS TO THE AUTHORITY. THE BOARD MAY REQUEST FROM THE AUTHORITY, AND THE AUTHORITY SHALL SUPPLY, AN ANALYSIS OF ALL SUCH APPLICATIONS ALONG WITH ANY RECOM- MENDATIONS OF THE AUTHORITY. IN ADDITION, THE BOARD MAY REQUEST, AND THE AUTHORITY SHALL SUPPLY, SUCH ADDITIONAL INFORMATION AS IS REASONABLY NECESSARY FOR THE BOARD TO PROPERLY PERFORM ITS DUTIES. 5. THE BOARD SHALL ESTABLISH A SCHEDULE FOR A REVIEW OF APPLICATIONS FOR FUND BENEFITS THAT SHALL OCCUR NO LESS FREQUENTLY THAN TWICE EACH YEAR. 6. THE BOARD SHALL DEVELOP AND ADOPT A MULTI-YEAR ECONOMIC DEVELOPMENT PLAN THAT IS CONSISTENT WITH REGIONAL ECONOMIC DEVELOPMENT PLANS THAT HAVE OR MAY BE ADOPTED BY STATE AND REGIONAL ECONOMIC DEVELOPMENT AGEN- CIES. THE BOARD'S MULTI-YEAR ECONOMIC DEVELOPMENT PLAN SHALL SET POLI- CIES AND PRIORITIES THAT WILL BE USED TO EVALUATE ALL APPLICATIONS FOR
ALLOCATION OF FUND BENEFITS. IF THE REGIONAL ECONOMIC DEVELOPMENT COUN- CIL FOR WESTERN NEW YORK ADOPTS SUCH AN ECONOMIC DEVELOPMENT PLAN, SUCH PLAN SHALL BE ADOPTED BY THE BOARD. 7. THE BOARD SHALL ADOPT CRITERIA TO BE USED TO EVALUATE ALL APPLICA- TIONS FOR AN ALLOCATION OF FUND BENEFITS. THE CRITERIA SHALL BE DESIGNED TO PROMOTE ECONOMIC DEVELOPMENT, MAINTAIN JOBS, AND ENCOURAGE NEW CAPI- TAL INVESTMENT WITHIN THIRTY MILES OF THE NIAGARA POWER PROJECT. THE CRITERIA SHALL ADDRESS, BUT NEED NOT BE LIMITED TO: (A) THE OVERALL ECONOMIC IMPACT OF THE PROPOSAL IN TERMS OF THE NUMBER OF JOBS TO BE CREATED OR RETAINED, THE AVERAGE ANNUAL PAYROLL, THE CAPI- TAL INVESTMENT THAT IS PROJECTED, AND THE EXTENT TO WHICH NEW YORK SUPPLIERS ARE USED; (B) THE LIKELIHOOD THAT IN THE ABSENCE OF APPROVAL OF AN ALLOCATION OF FUND BENEFITS, THE APPLICANT WOULD NOT UNDERTAKE THE PROPOSED PROJECT, CLOSE, CONTRACT, OR RELOCATE OUTSIDE OF WESTERN NEW YORK; (C) THE APPLICANT'S COMPLIANCE WITH ANY PRIOR COMMITMENT TO THE CORPO- RATION, THE AUTHORITY, THE STATE OF NEW YORK, THE ERIE COUNTY INDUSTRIAL DEVELOPMENT AGENCY, THE NIAGARA COUNTY INDUSTRIAL DEVELOPMENT AGENCY, OR ANY LOCAL INDUSTRIAL DEVELOPMENT AGENCY TO RETAIN AND/OR CREATE JOBS OR TO MAKE CAPITAL INVESTMENTS IN EXCHANGE FOR A BENEFIT FROM SUCH ENTITY; (D) THE EXTENT TO WHICH AN ALLOCATION OF FUND BENEFITS WILL AFFECT THE OVERALL PRODUCTIVITY OR COMPETITIVENESS OF THE APPLICANT'S BUSINESS AND ITS EXISTING EMPLOYMENT WITHIN WESTERN NEW YORK AND THE STATE OF NEW YORK; (E) THE EXTENT OF OTHER BENEFITS BEING OFFERED TO THE APPLICANT FROM THE STATE OF NEW YORK, ITS POLITICAL SUBDIVISIONS, PUBLIC AUTHORITIES, INDUSTRIAL DEVELOPMENT AGENCIES, PUBLIC BENEFIT CORPORATIONS, LOCAL DEVELOPMENT AGENCIES, OR OTHER PUBLIC AGENCIES; AND (F) THE OVERALL IMPACT OF THE SITE OR USER INCLUDING THE PROJECT'S ABILITY TO INDUCE ADDITIONAL COMMERCIAL OR INDUSTRIAL ACTIVITY TO WEST- ERN NEW YORK, REVITALIZE AN URBAN AREA, AND ITS COMPLIANCE WITH REGIONAL DEVELOPMENT PLANS. 8. THE BOARD SHALL RECOMMEND TO THE CORPORATION THE ALLOCATION OF FUND BENEFITS TO ELIGIBLE PROJECTS THAT BEST MEET THE CRITERIA ESTABLISHED FOR THE EVALUATION OF APPLICATIONS. 9. 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 MILESTONES 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 COMMIT- MENTS, OR SUCH OTHER TERMS AND CONDITIONS AS THE BOARD DEEMS ADVISABLE. 10. RECOMMENDATION FOR APPROVAL OF THE ALLOCATION OF FUND BENEFITS BY THE BOARD SHALL QUALIFY AN APPLICANT TO RECEIVE SUCH FUND BENEFITS FOR ELIGIBLE PROJECTS. 11. THE CORPORATION SHALL NOT WITHDRAW ANY NET PROCEEDS FROM THE FUND AND MAY NOT ALLOCATE ANY FUND BENEFIT UNLESS THE BOARD HAS RECOMMENDED SUCH A WITHDRAWAL OR ALLOCATION. THE TRANSFER OR USE OF ANY FUND BENEFIT IS PROHIBITED UNLESS SPECIFICALLY RECOMMENDED BY THE BOARD. 12. WHEN THE CORPORATION MAKES AN ALLOCATION OF FUND BENEFITS IT SHALL INCLUDE WITHIN SUCH CONTRACT OR GRANT DISBURSEMENT AGREEMENT ALL TERMS AND CONDITIONS THAT HAVE BEEN RECOMMENDED BY THE BOARD. S 189-D. ADVISORY GROUP. NOTWITHSTANDING ANY LAW, RULE, REGULATION OR ADMINISTRATIVE POLICY TO THE CONTRARY, THERE IS HEREBY CREATED THE WEST- ERN NEW YORK HYDRO-POWER ALLOCATION ADVISORY GROUP THAT SHALL BE CONSTI- TUTED AND HAVE THE POWERS DESCRIBED IN THIS SECTION. 1. THE WESTERN NEW
YORK HYDRO-POWER ALLOCATION ADVISORY GROUP SHALL CONSIST OF SIX MEMBERS AS FOLLOWS: (A) THE REGIONAL DIRECTOR OF THE EMPIRE STATE DEVELOPMENT CORPORATION FOR WESTERN NEW YORK; (B) THE CHAIR OF THE ERIE COUNTY INDUSTRIAL DEVELOPMENT AGENCY; (C) THE COMMISSIONER OF THE NIAGARA COUNTY DEPARTMENT OF ECONOMIC DEVELOPMENT; (D) THE CHAIR OF THE BOARD OF BUFFALO-NIAGARA ENTERPRISE; (E) THE REGIONAL DIRECTOR OF THE NATIONAL GRID COMPANY; AND (F) THE CHAIR OF THE BOARD OF THE NEW YORK STATE POWER AUTHORITY. 2. MEMBERS OF THE ADVISORY GROUP ARE AUTHORIZED TO APPOINT AN ALTER- NATE MEMBER TO SERVE IN THEIR ABSENCE FROM TIME TO TIME. ALTERNATE MEMBERS SHALL BE COUNTED AS PRESENT FOR THE DETERMINATION OF A QUORUM, TO VOTE AND TO FULLY PARTICIPATE IN MEETINGS AND TO TAKE ALL SUCH OTHER ACTIONS AS AN ADVISORY GROUP MEMBER, EXCEPT THAT THEY MAY NOT APPOINT ADDITIONAL ADVISORY GROUP MEMBERS. AN ADVISORY GROUP MEMBER MAY REMOVE OR REPLACE THEIR ALTERNATE MEMBER AT ANY TIME FOR ANY REASON AND MAY REAPPOINT SUCH ALTERNATE ADVISORY GROUP MEMBER. 3. THE ADVISORY GROUP SHALL SELECT A CHAIR AND VICE CHAIR AND SUCH OTHER OFFICERS AS IT DEEMS ADVISABLE. 4. ADVISORY GROUP MEMBERS SHALL SERVE SO LONG AS THEY CONTINUE TO HOLD THE POSITION SPECIFIED IN SUBDIVISION ONE OF THIS SECTION. 5. FOUR MEMBERS SHALL CONSTITUTE A QUORUM FOR THE PURPOSE OF ORGANIZ- ING THE ADVISORY GROUP AND CONDUCTING THE BUSINESS THEREOF; AND NO ACTION OF THE ADVISORY GROUP MAY BE TAKEN EXCEPT UPON THE AFFIRMATIVE VOTE OF AT LEAST FOUR MEMBERS. VIDEOCONFERENCING OR TELECONFERENCING MAY BE USED FOR ATTENDANCE AND PARTICIPATION BY MEMBERS OF THE ADVISORY GROUP. 6. MEMBERS OF THE ADVISORY GROUP, 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 SECTION. 7. THE ADVISORY GROUP SHALL RECEIVE FROM THE POWER AUTHORITY OF THE STATE OF NEW YORK ALL APPLICATIONS THAT THE POWER AUTHORITY HAS RECEIVED FROM, OR ON BEHALF OF, ANY ELIGIBLE ENTITIES FOR THE ALLOCATION OR REAL- LOCATION OF POWER OR ENERGY FROM THE NIAGARA POWER PROJECT'S EXPANSION POWER OR REPLACEMENT POWER BLOCS AS SUCH TERMS ARE DEFINED IN SUBDIVI- SION SIX OF SECTION ONE HUNDRED EIGHTY-NINE-A OF THIS ARTICLE AT LEAST THIRTY DAYS PRIOR TO A DECISION BY THE POWER AUTHORITY TRUSTEES TO APPROVE OR DENY SUCH ALLOCATION. THE ADVISORY GROUP MAY CHOOSE TO WAIVE OR SHORTEN THE THIRTY DAY NOTICE PERIOD FOR GOOD CAUSE, BY A MAJORITY VOTE. THE ADVISORY GROUP MAY CHOOSE TO ACCEPT FROM THE AUTHORITY A SUMMARY OF SUCH APPLICATIONS, BUT MAY REQUEST AND THE POWER AUTHORITY SHALL SUPPLY, SUCH ADDITIONAL INFORMATION AS IS REASONABLY NECESSARY FOR THE ADVISORY GROUP TO PROPERLY PERFORM ITS DUTIES. 8. UPON RECEIPT OF AN APPLICATION FOR THE ALLOCATION OF POWER OR ENER- GY FROM THE NIAGARA PROJECT, THE ADVISORY GROUP SHALL MEET AND SHALL MAKE A RECOMMENDATION TO THE POWER AUTHORITY TO APPROVE, DENY, OR APPROVE AS MODIFIED AN APPLICATION FOR A POWER OR ENERGY ALLOCATION. THE ADVISORY GROUP SHALL STATE ITS REASONS FOR SUCH A RECOMMENDATION. SUCH RECOMMENDATION SHALL BE PRESENTED TO THE POWER AUTHORITY TRUSTEES FOR ITS DELIBERATION AND CONSIDERATION, BUT SHALL BE ADVISORY ONLY AND SHALL NOT BE BINDING UPON THE POWER AUTHORITY. 9. THE ADVISORY GROUP SHALL MEET AS NEEDED TO PROVIDE THE POWER AUTHORITY WITH TIMELY RECOMMENDATIONS REGARDING PENDING APPLICATIONS FOR
THE ALLOCATION OF HYDRO-POWER. SUCH MEETINGS SHALL OCCUR NO LESS FREQUENTLY THAN TWICE EACH YEAR. 10. IN MAKING ITS RECOMMENDATIONS FOR THE ALLOCATION OF POWER AND ENERGY, THE ADVISORY GROUP SHALL REFER TO AND RELY UPON THE ECONOMIC DEVELOPMENT PLAN AND STRATEGY ESTABLISHED BY SUBDIVISION SIX OF SECTION ONE HUNDRED EIGHTY-NINE-C OF THIS ARTICLE. 11. IN MAKING ITS RECOMMENDATIONS FOR THE ALLOCATION OF POWER AND ENERGY, THE ADVISORY GROUP SHALL REFER TO AND RELY UPON THE CRITERIA ESTABLISHED IN SUBDIVISION SEVEN OF SECTION ONE HUNDRED EIGHTY-NINE-C OF THIS ARTICLE. 12. THE ADVISORY GROUP SHALL RECOMMEND THE ALLOCATION OF POWER AND ENERGY TO THE COMPANY OR COMPANIES WHICH BEST MEET THE CRITERIA ESTAB- LISHED FOR THE EVALUATION OF EACH APPLICATION. 13. THE ADVISORY GROUP MAY INCLUDE WITHIN ITS RECOMMENDATIONS SUCH TERMS AND CONDITIONS AS IT DEEMS APPROPRIATE, INCLUDING, BUT NOT LIMITED TO: REASONABLE PROVISION FOR THE ALLOCATION OF POWER AND ENERGY OVER TIME AS THE APPLICANT ACHIEVES MILESTONES TOWARDS PROJECT COMPLETION; THE PARTIAL OR COMPLETE WITHDRAWAL OR RETURN OF POWER AND ENERGY WHERE THE RECIPIENT HAS FAILED TO ACHIEVE OR MAINTAIN MUTUALLY AGREED UPON COMMITMENTS; OR SUCH OTHER TERMS AND CONDITIONS AS THE ADVISORY GROUP DEEMS ADVISABLE. S 189-E. MISCELLANEOUS PROVISIONS. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A MEMBER OF THE BOARD IS NOT DISQUALIFIED FROM FULL PARTICIPATION IN ALL BOARD ACTIVITIES, INCLUDING VOTING, SOLELY ON THE GROUNDS THAT AN ORGANIZATION THAT EMPLOYS SUCH MEMBER HAS INDICATED THAT IT SUPPORTS OR OPPOSES SUCH AN APPLICATION. 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 REQUESTED BY THE WESTERN NEW YORK POWER PROCEEDS ALLOCATION BOARD. 26-B. TO PROVIDE ALL NECESSARY STAFF SERVICES, ACCOUNTING, CLERICAL AND SECRETARIAL ASSISTANCE, AND OFFICE SPACE AND EQUIPMENT REQUESTED BY THE WESTERN NEW YORK HYDRO-POWER ALLOCATION ADVISORY GROUP. 26-C. TO ESTABLISH A FUND TO BE KNOWN AS THE WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND AS PROVIDED FOR IN ARTICLE SIX-A OF THIS CHAPTER. S 4. Section 1005 of the public authorities law is amended by adding three new subdivisions 19, 20 and 21 to read as follows: 19. TO FULLY AND COMPLETELY COOPERATE WITH THE WESTERN NEW YORK HYDRO-POWER ALLOCATION ADVISORY GROUP, THE AUTHORITY SHALL PROVIDE THE ADVISORY GROUP WITH ALL MATERIALS, INFORMATION AND REPORTS THAT ARE REASONABLY REQUESTED BY SUCH ADVISORY GROUP. THE AUTHORITY IS FURTHER AUTHORIZED AND DIRECTED TO PROVIDE ALL NECESSARY STAFF SERVICES, ACCOUNTING, CLERICAL AND SECRETARIAL ASSISTANCE, OFFICE SPACE, AND EQUIPMENT REQUESTED BY THE WESTERN NEW YORK HYDRO-POWER ALLOCATION ADVI- SORY GROUP. 20. TO FULLY AND COMPLETELY COOPERATE WITH THE WESTERN NEW YORK POWER PROCEEDS ALLOCATION BOARD, THE AUTHORITY SHALL PROVIDE THE BOARD WITH ALL MATERIALS, INFORMATION AND REPORTS THAT ARE REASONABLY REQUESTED BY SUCH BOARD. THE AUTHORITY IS FURTHER AUTHORIZED AND DIRECTED TO PROVIDE ALL NECESSARY STAFF SERVICES, ACCOUNTING, CLERICAL AND SECRETARIAL ASSISTANCE, OFFICE SPACE, AND EQUIPMENT REQUESTED BY THE WESTERN NEW YORK POWER PROCEEDS ALLOCATION BOARD. 21. TO ALLOCATE FUNDS OF THE AUTHORITY TO THE EMPIRE STATE DEVELOPMENT CORPORATION'S WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND AS REQUIRED BY
ARTICLE SIX-A OF THE ECONOMIC DEVELOPMENT LAW AND SUCH ADDITIONAL AMOUNTS AS DEEMED FEASIBLE AND ADVISABLE BY THE TRUSTEES. S 5. The state finance law is amended by adding a new section 99-u to read as follows: S 99-U. WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND. 1. THERE IS HERE- BY ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE WESTERN NEW YORK POWER PROCEEDS ALLOCATION BOARD A SPECIAL FUND TO BE KNOWN AS THE "WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND". 2. THE DEFINITIONS OF WORDS AND TERMS CONTAINED IN SECTION ONE HUNDRED EIGHTY-NINE-A OF THE ECONOMIC DEVELOPMENT LAW SHALL APPLY TO THIS SECTION AS IF FULLY SET FORTH IN THIS SECTION. 3. THE CORPORATION SHALL ESTABLISH A SEPARATE ACCOUNT TO BE KNOWN AS THE WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND. 4. THE AUTHORITY SHALL DEPOSIT INTO THE WESTERN NEW YORK ECONOMIC DEVELOPMENT FUND ALL NET EARNINGS. SUCH EARNINGS SHALL BE DEPOSITED NO LESS FREQUENTLY THAN MONTHLY. THE FIRST PAYMENT SHALL BE MADE AT THE END OF THE FIRST FULL MONTH SUCCEEDING THIS SECTION BECOMING A LAW AND SHALL INCLUDE ALL ACCRUED NET EARNINGS AS OF THE EFFECTIVE DATE OF CHAPTER FOUR HUNDRED THIRTY-SIX OF THE LAWS OF TWO THOUSAND TEN. THE AUTHORITY SHALL PROVIDE THE BOARD WITH STATEMENTS, NO LESS FREQUENTLY THAN QUAR- TERLY, THAT CONTAIN A FULL AND COMPLETE ACCOUNTING OF ALL NET EARNINGS AND THE CALCULATIONS THEREOF, A STATEMENT OF ALL DEPOSITS INTO THE FUND AND OTHER SUCH INFORMATION AS THE BOARD MAY REASONABLY REQUIRE TO PERFORM ITS DUTIES. 5. THE BOARD MAY REQUEST, AND THE AUTHORITY SHALL PROVIDE AT SUCH TIMES AND COVERING SUCH PERIODS AND IN SUCH FORM AS IS REASONABLY DETER- MINED BY THE BOARD AS CONVENIENT OR APPROPRIATE FOR IT TO CARRY OUT ITS DUTIES, A FULL ACCOUNTING OF THE SALE, USE, AND PROCEEDS FROM ALL CATE- GORIES OF POWER AND ENERGY FROM THE NIAGARA PROJECT THAT ARE AVAILABLE FOR INDUSTRIAL AND COMMERCIAL USE INCLUDING, BUT NOT LIMITED TO, EXPAN- SION AND REPLACEMENT POWER. SUCH REPORT SHALL INCLUDE STATEMENTS THAT SHOW THE AMOUNT AND PROCEEDS FROM THE SALE OF POWER AND/OR ENERGY ON THE MARKET AND UNDER CONTRACT TO AN ELIGIBLE RECIPIENT OF SUCH POWER AND/OR ENERGY, THE AMOUNT OF FUNDS THAT ARE CONSIDERED NET EARNINGS AND THE CALCULATION THEREOF, AND THE DISPOSITION OF ALL SUCH FUNDS. 6. THE CORPORATION MAY NOT WITHDRAW ANY NET EARNINGS FROM THE FUND EXCEPT IN ACCORDANCE WITH SECTION ONE HUNDRED EIGHTY-NINE-C OF THIS ARTICLE. 7. THE CORPORATION SHALL PROVIDE THE BOARD WITH STATEMENTS, NO LESS FREQUENTLY THAN QUARTERLY, THAT CONTAIN A FULL AND COMPLETE ACCOUNTING OF ALL NET EARNINGS DEPOSITED INTO THE FUND INCLUDING ANY STATEMENTS OR REPORTS PROVIDED BY THE AUTHORITY, ALL WITHDRAWALS AND OTHER USES FROM THE FUND AND OTHER SUCH INFORMATION AS THE BOARD MAY REASONABLY REQUIRE TO PERFORM ITS DUTIES. S 6. 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 7. This act shall take effect immediately.

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