§ 188-a. Recharge New York power program. (a) Definitions. For the purposes of this section, the following terms shall have the following meanings:

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(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 § 1005 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fifty-five megawatts of firm hydroelectric power from the Niagara and Saint Lawrence hydroelectric projects to be withdrawn from utility corporations that, prior to the effective date of this section, purchased such power for the benefit of their domestic and rural consumers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 6 of the public officers law.