New York Laws
Article 6 - New York State Economic Development Power Allocation Board
188-A - Recharge New York Power Program.

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withdrawn from utility corporations that, prior to the effective date of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

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