S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1535
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 15, 2019
                                ___________
 
 Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
   printed to be committed to the Committee on  Energy  and  Telecommuni-
   cations
 
 AN  ACT  to  amend the economic development law, in relation to enacting
   the take charge New York power program
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 188-a of the economic development law is amended by
 adding a new subdivision (i) to read as follows:
   (I)  ANY  APPLICANT  CURRENTLY  RECEIVING  PROCEEDS UNDER THIS SECTION
 SHALL ALSO BE PERMITTED TO APPLY FOR BENEFITS UNDER SECTION ONE  HUNDRED
 EIGHTY-EIGHT-B OF THIS ARTICLE.
   §  2.  The economic development law is amended by adding a new section
 188-b to read as follows:
   § 188-B. TAKE CHARGE NEW YORK POWER PROGRAM. (A) DEFINITIONS.  FOR THE
 PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE  THE  FOLLOWING
 MEANINGS:
   (1)  "APPLICABLE CRITERIA" SHALL MEAN THE CRITERIA SPECIFIED IN SUBDI-
 VISION (C) OF THIS SECTION.
   (2) "AUTHORITY" SHALL MEAN THE POWER AUTHORITY OF  THE  STATE  OF  NEW
 YORK.
   (3)  "ELIGIBLE  APPLICANT"  SHALL  MEAN AN ELIGIBLE BUSINESS, ELIGIBLE
 SMALL BUSINESS, ELIGIBLE INDUSTRIAL DEVELOPMENT AGENCY 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.
   (4)  "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.

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

                                                            LBD00325-02-9

 S. 1535                             2
 
   (5)  "ELIGIBLE  NOT-FOR-PROFIT  CORPORATION"  SHALL MEAN A CORPORATION
 DEFINED IN SUBPARAGRAPH FIVE OF PARAGRAPH (A) OF SECTION ONE HUNDRED TWO
 OF THE NOT-FOR-PROFIT CORPORATION LAW.
   (6)  "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.
   (7)  "MICROGRID"  SHALL  MEAN  A  GROUP  OF  INTERCONNECTED  LOADS AND
 DISTRIBUTED ENERGY RESOURCES WITHIN CLEARLY DEFINED  ELECTRICAL  BOUNDA-
 RIES  THAT ACTS AS A SINGLE CONTROLLABLE ENTITY WITH RESPECT TO THE GRID
 AND THAT DISCONNECTS FROM SUCH GRID TO ENABLE  IT  TO  OPERATE  IN  BOTH
 GRID-CONNECTED OR ISLAND MODE. ANY ENTITY PROVIDING MICROGRID TECHNOLOGY
 SHALL BE STRUCTURED AS A SPECIAL PURPOSE ENTITY.
   (8)  "INFRASTRUCTURE"  SHALL  MEAN THE COMPONENTS NECESSARY FOR TRANS-
 MISSION AND DISTRIBUTION OF ENERGY ON THE MICROGRID.
   (9) "TAKECHARGE NEW YORK POWER" SHALL MEAN A SUBSIDY PROVIDED  BY  THE
 AUTHORITY,  SUBJECT  TO  AN EQUITY ASSURANCE TO BE MATCHED BY THE APPLI-
 CANT, TO COVER THE DEVELOPMENT AND INFRASTRUCTURE NEEDED TO INSTALL  AND
 MAINTAIN  A  MICROGRID  AT  EACH  APPLICANT'S  PLACE  OF BUSINESS, AS IT
 RELATES TO A MICROGRID THE ALLOCATION WOULD BE THE VALUE OF THE MONETARY
 EQUIVALENT OF THE POWER ALLOCATION THAT WOULD HAVE  BEEN  GRANTED  UNDER
 SECTION ONE HUNDRED EIGHTY-EIGHT-A OF THIS ARTICLE.
   (B)  APPLICATIONS  FOR  TAKECHARGE  NEW  YORK POWER. (1) THE BOARD MAY
 SOLICIT APPLICATIONS FOR TAKECHARGE NEW YORK  POWER  UNDER  THE  PROGRAM
 CREATED BY THIS SECTION BY PUBLIC NOTICE BEGINNING NO LATER THAN SEPTEM-
 BER FIRST, TWO THOUSAND TWENTY. SUCH NOTICE MAY INCLUDE NEWSPAPER ADVER-
 TISEMENTS,  PRESS  RELEASES, WEBSITE POSTINGS, PAPER OR ELECTRONIC MAIL-
 ING, AND/OR SUCH OTHER FORM OF NOTICE AS THE BOARD FINDS APPROPRIATE  IN
 CONSULTATION  WITH  THE  AUTHORITY. THE BOARD SHALL ALSO WORK WITH LOCAL
 INDUSTRIAL  DEVELOPMENT  AGENCIES  AND  ECONOMIC  DEVELOPMENT   AGENCIES
 LOCATED  THROUGHOUT  THE STATE TO IDENTIFY AND SOLICIT APPLICATIONS FROM
 BUSINESSES AND CORPORATE PARKS THAT  MEET  THE  CRITERIA  SET  FORTH  IN
 SUBDIVISION (C) OF THIS SECTION.
   (2) APPLICATIONS FOR TAKECHARGE 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) SUBJECT TO CONFIDENTIALITY  REQUIREMENTS,  UPON  RECEIPT  OF  EACH
 APPLICATION FROM THE BOARD, THE AUTHORITY SHALL PROMPTLY NOTIFY BY ELEC-
 TRONIC  MEANS,  INCLUDING  WEBSITE  POSTINGS  AND SUCH OTHER METHODS THE
 BOARD DEEMS APPROPRIATE IN CONSULTATION WITH THE AUTHORITY,  THE  GOVER-
 NOR,  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 TAKECHARGE  NEW  YORK  POWER  BENEFIT
 SOUGHT  BY EACH APPLICANT, AND THE ADDRESS OF THE FACILITY FOR WHICH THE
 APPLICANT REQUESTS THE BENEFIT, AND SHALL MAKE THE LISTING AVAILABLE FOR
 PUBLIC REVIEW ON THE AUTHORITY'S WEBSITE.
   (4) APPLICATIONS MAY BE MADE BY MULTIPLE ELIGIBLE APPLICANTS,  SUBJECT
 TO  ACCEPTANCE  BY THE BOARD, IF EACH ELIGIBLE APPLICANT IS LOCATED IN A
 GEOGRAPHIC PROXIMITY TO EACH OTHER. THE BOARD SHALL SET THE REQUIREMENTS
 OF WHAT CONSTITUTES GEOGRAPHIC PROXIMITY. THE  BOARD  SHALL  TREAT  SUCH

 S. 1535                             3
 
 COMBINED  APPLICATIONS  AS  A SINGLE APPLICATION, AND USE THE CUMULATIVE
 TOTALS WHEN EVALUATING THE APPLICABLE CRITERIA SET FORTH IN  SUBDIVISION
 (C) OF THIS SECTION.
   (5)  APPLICATIONS  MAY  BE  MADE  BY AN INDUSTRIAL DEVELOPMENT AGENCY,
 SUBJECT TO ACCEPTANCE BY THE BOARD, IF THE BOARD DETERMINES  THE  INDUS-
 TRIAL  DEVELOPMENT AGENCY'S APPLICATION IS FEASIBLE WITH MICROGRID TECH-
 NOLOGY.
   (C) REVIEW APPLICABLE CRITERIA  AND  RECOMMENDATIONS.  (1)  THE  BOARD
 SHALL  REVIEW APPLICATIONS SUBMITTED UNDER THE TAKECHARGE NEW YORK POWER
 PROGRAM.  THE BOARD SHALL MAKE AN INITIAL DETERMINATION OF  WHETHER  THE
 APPLICANT  IS  AN  ELIGIBLE  APPLICANT. IN THE CASE OF MULTIPLE ELIGIBLE
 APPLICANTS OR AN INDUSTRIAL DEVELOPMENT AGENCY MAKING A SINGLE  APPLICA-
 TION,  THE  BOARD  SHALL  TREAT  THE  CUMULATIVE APPLICATION AS A SINGLE
 APPLICATION. IN THE CASE OF AN ELIGIBLE APPLICANT, THE BOARD MAY  RECOM-
 MEND TO THE AUTHORITY THAT AN ALLOCATION OF A MICROGRID 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 OVERALL ENERGY USAGE TO THE APPLI-
 CANT'S OVERALL COST OF DOING BUSINESS, AND THE IMPACT THAT A  TAKECHARGE
 NEW YORK POWER ALLOCATION WILL HAVE ON THE APPLICANT'S OPERATING COSTS;
   (II)  THE  EXTENT  TO  WHICH  A TAKECHARGE NEW YORK POWER BENEFIT WILL
 RESULT IN NEW CAPITAL INVESTMENT IN THE STATE BY THE APPLICANT;
   (III) THE EXTENT TO WHICH A  TAKECHARGE  NEW  YORK  POWER  BENEFIT  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  A
 BENEFIT;
   (V)  THE APPLICANT'S PAYROLL, SALARIES, BENEFITS AND NUMBER OF JOBS AT
 THE FACILITY FOR WHICH A TAKECHARGE NEW YORK POWER BENEFIT IS REQUESTED;
   (VI) THE NUMBER OF JOBS THAT WILL BE CREATED OR  RETAINED  WITHIN  THE
 STATE  IN  RELATION  TO THE REQUESTED TAKECHARGE NEW YORK POWER BENEFIT,
 AND THE EXTENT TO WHICH THE APPLICANT WILL AGREE TO COMMIT  TO  CREATING
 OR RETAINING SUCH JOBS AS A CONDITION TO RECEIVING A TAKECHARGE NEW YORK
 POWER BENEFIT;
   (VII)  WHETHER THE APPLICANT, DUE TO THE COST OF ENERGY, 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  TAKECHARGE  NEW  YORK
 BENEFIT;
   (VIII) THE SIGNIFICANCE OF THE APPLICANT'S FACILITY THAT WOULD RECEIVE
 THE TAKECHARGE NEW YORK BENEFIT TO THE ECONOMY OF THE AREA IN WHICH SUCH
 FACILITY IS LOCATED;
   (IX)  WILL  AGREE  TO  PLACE AN EQUITY AMOUNT, TO BE DETERMINED BY THE
 BOARD, FOR THE INSTALLATION AND MAINTENANCE OF A  MICROGRID  AND  TO  BE
 RELEASED  UPON  REIMBURSEMENT  OF  THE  SUBSIDY  AMOUNT  PROVIDED BY THE
 AUTHORITY;
   (X) 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 BENEFIT IS REQUESTED IS LOCATED;
   (XI) THE MINIMUM LOAD REQUIREMENTS BY THE APPLICANT; AND
   (XII)  IN  ADDITION TO THE FOREGOING CRITERIA, THE APPLICANT MUST ALSO
 AGREE TO PAY BACK THE SUBSIDY PROVIDED BY THE  AUTHORITY  FOR  MICROGRID
 DEVELOPMENT, UNDER A TIMELINE DEVELOPED BY THE BOARD.

 S. 1535                             4
 
   (2)  A RECOMMENDATION BY THE BOARD THAT THE AUTHORITY PROVIDE A TAKEC-
 HARGE NEW YORK POWER BENEFIT IN THE FORM OF A MICROGRID TO  AN  ELIGIBLE
 APPLICANT SHALL INCLUDE, BUT NEED NOT BE LIMITED TO:
   (I)  AN  EFFECTIVE  INITIAL  TERM OF THE CONTRACT BETWEEN THE ELIGIBLE
 APPLICANT AND THE AUTHORITY WHICH SHALL NOT EXCEED THE EFFECTIVE LIFE OF
 THE MICROGRID;
   (II) PROVISIONS FOR EFFECTIVE PERIODIC AUDITS OF THE  RECIPIENT  OF  A
 BENEFIT  FOR THE PURPOSE OF DETERMINING CONTRACT AND PROGRAM COMPLIANCE,
 AND FOR THE PARTIAL OR COMPLETE WITHDRAWAL OF A BENEFIT IF THE RECIPIENT
 FAILS TO MAINTAIN MUTUALLY AGREED UPON COMMITMENTS, RELATING  TO,  AMONG
 OTHER  THINGS,  EMPLOYMENT  LEVELS,  CAPITAL  INVESTMENTS, AND/OR ENERGY
 EFFICIENCY MEASURES;
   (III) A REQUIREMENT FOR AN AGREEMENT BY THE RECIPIENT OF A BENEFIT  TO
 (A)  UNDERTAKE  AT  ITS OWN EXPENSE AN ENERGY AUDIT OF ITS FACILITIES AT
 WHICH IT RECEIVES THE BENEFIT AT LEAST  ONCE  DURING  THE  TERM  OF  THE
 CONTRACT BUT IN ANY EVENT NOT LESS THAN ONCE EVERY FIVE YEARS, PROVIDED,
 HOWEVER, THAT SUCH REQUIREMENT MAY BE WAIVED OR MODIFIED BY THE AUTHORI-
 TY  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 EFFI-
 CIENCY MEASURES AT THE FACILITIES;
   (IV) A REQUIREMENT FOR AN AGREEMENT BETWEEN THE RECIPIENT OF AN  ALLO-
 CATION AND THE AUTHORITY FOR THE INSTALLATION OF A MICROGRID AND MAINTE-
 NANCE OF SUCH EQUIPMENT FOR A PERIOD OF YEARS; AND
   (V)  A  REQUIREMENT  FOR AN AGREEMENT BY THE RECIPIENT OF A BENEFIT 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  INFOR-
 MATION  REQUESTED BY THE AUTHORITY OR ITS DESIGNEE IN SURVEYS, QUESTION-
 NAIRES AND OTHER INFORMATION REQUESTS RELATING TO ENERGY EFFICIENCY  AND
 ENERGY-RELATED PROJECTS, PROGRAMS AND SERVICES.
   (3) THE BOARD MAY BASE ITS RECOMMENDATION ON WHICH ELIGIBLE APPLICANTS
 IT DETERMINES BEST MEET THE APPLICABLE CRITERIA.
   (4)  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.
   (5)  A  RECOMMENDATION  FOR  A TAKECHARGE NEW YORK POWER BENEFIT SHALL
 QUALIFY AN APPLICANT TO ENTER INTO A CONTRACT WITH THE AUTHORITY  PURSU-
 ANT  TO  THE TERMS AND CONDITIONS OF THE RECOMMENDATION BY THE BOARD AND
 ON SUCH OTHER TERMS AS THE AUTHORITY DETERMINES TO BE APPROPRIATE.
   (D) THE AUTHORITY SHALL, AT A MINIMUM, REPORT QUARTERLY TO  THE  BOARD
 ON THE SUCCESS OF THE TAKECHARGE NEW YORK BENEFITS.
   (E)  FOR  THE  PURPOSES  OF  THIS SECTION, THE AUTHORITY SHALL OWN AND
 MAINTAIN ALL MICROGRID INFRASTRUCTURE, AND  SHALL  USE  ITS  POWERS  SET
 FORTH  IN  SECTION  ONE  THOUSAND  FIVE OF THE PUBLIC AUTHORITIES LAW TO
 IMPLEMENT ANY MICROGRID INFRASTRUCTURE.
   (F) (1) THE BOARD, IN CONSULTATION WITH THE AUTHORITY, SHALL SUBMIT TO
 THE GOVERNOR, TEMPORARY PRESIDENT OF THE SENATE, SPEAKER OF  THE  ASSEM-
 BLY,  MINORITY  LEADER OF THE SENATE AND MINORITY LEADER OF THE ASSEMBLY
 AN EVALUATION OF THE EFFECTIVENESS OF  THE  TAKECHARGE  NEW  YORK  POWER
 PROGRAM. SUCH EVALUATION SHALL FOCUS ON HOW THE PROGRAM HAS AIDED RECIP-
 IENTS  OF MICROGRID, AND MAY INCLUDE RECOMMENDATIONS FOR HOW THE PROGRAM
 CAN BE MADE MORE EFFECTIVE. SUCH EVALUATION SHALL BE SUBMITTED BY DECEM-
 BER THIRTY-FIRST, TWO THOUSAND NINETEEN  AND  BY  DECEMBER  THIRTY-FIRST
 EVERY FIVE YEARS THEREAFTER.

 S. 1535                             5
 
   (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.
   (G)  THE  AUTHORITY  SHALL  HAVE THE POWER TO EFFECTUATE ALL NECESSARY
 REGULATIONS TO CARRY OUT THE INTENT AND PURPOSE OF THIS CHAPTER.
   (H) NOTHING IN THIS SECTION SHALL  PROHIBIT  AN  APPLICANT  FROM  ALSO
 RECEIVING  POWER ALLOCATIONS UNDER SECTION ONE HUNDRED EIGHTY-EIGHT-A OF
 THIS ARTICLE.
   § 3. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.