NY-ENG Energy Law NY

Short title. This chapter shall be known and may be cited as

the "energy law."

Definitions. As used in this chapter, unless a different

meaning clearly appears from the context or unless a different meaning

is stated in a definition applicable to only a portion of this chapter:

1. "Agency" shall mean any state department, agency, board, public

benefit corporation, public authority or commission.

2. "Office" as used in sections 5-108, 5-111, 5-113, and 5-117 of

article five and articles six, seven, eight and ten of this chapter

shall mean the New York state energy research and development authority

established pursuant to article eight of the public authorities law.

3. "Coal" shall include bituminuous coal, anthracite coal, and

lignite.

4. "Commissioner" as used in sections 5-108, 5-111, 5-113, and 5-117

of article five and articles six, seven, eight and ten of this chapter

shall mean the president of the New York state energy research and

development authority.

5. "Energy" means work or heat that is, or may be, produced from any

fuel or source whatsoever.

6. "Energy resources" shall mean any force or material which yields or

has the potential to yield energy, including but not limited to

electrical, fossil, geothermal, wind, hydro, solid waste, tidal, wood,

solar and nuclear sources.

7. "Fossil fuel" shall mean coal, petroleum products and fuel gases.

8. "Fuel gases" shall include but not be limited to methane, natural

gas, liquefied natural gas, and manufactured fuel gases.

9. "Municipality" or "municipal corporation" shall mean a city,

county, town, village, school district, special purpose district, or an

agency thereof.

10. "Person" shall mean any individual, trustee, agency, partnership,

association, corporation, company, municipality, political subdivision

or other legal entity.

11. "Petroleum products" shall include all products refined or

rerefined from synthetic or crude oil or oil extracted from other

sources, including natural gas liquids.

12. "Renewable energy resources" shall include sources which are

capable of being continuously restored by natural or other means or are

so large as to be useable for centuries without significant depletion

and include but are not limited to solar, wind, plant and forest

products, wastes, tidal, hydro, geothermal, deuterium, and hydrogen.

13. "Telecommuting" shall mean the conservation of energy through the

reduction of travel by employees of the office to and from their

designated workplace through the use of telecommunication and computer

technology in tasks including, but not limited to, information transfer

and processing.

14. "Critical energy infrastructure" means systems, including

industrial control systems, assets, places or things, whether physical

or virtual, so vital to the state that the disruption, incapacitation or

destruction of such systems, including industrial control systems,

assets, places or things could jeopardize the health, safety, welfare,

energy distribution, transmission, reliability, or security of the

state, its residents or its economy.

15. "Industrial control systems" means an information system used to

monitor and/or control industrial processes, including supervisory

control and data acquisition systems used to monitor and/or control

geographically dispersed assets, distributed control systems,

human-machine interfaces, and programmable logic controllers that

control localized processes.

State energy policy. It shall be the energy policy of the

state:

1. to obtain and maintain an adequate and continuous supply of safe,

dependable and economical energy for the people of the state, including

through the protection of critical energy infrastructure as defined in

subdivision fourteen of section 1-103 of this chapter, and to accelerate

development and use within the state of renewable energy sources, all in

order to promote the state's economic growth, to create employment

within the state, to protect its environmental values and agricultural

heritage, to husband its resources for future generations, and to

promote the health and welfare of its people;

2. to encourage conservation of energy and to promote the clean energy

and climate agenda, including but not limited to greenhouse gas

reduction, set forth within chapter one hundred six of the laws of two

thousand nineteen, also known as the New York state climate leadership

and community protection act, in the construction and operation of new

commercial, industrial, agricultural and residential buildings, and in

the rehabilitation of existing structures, through heating, cooling,

ventilation, lighting, insulation and design techniques and the use of

energy audits and life-cycle costing analysis;

3. to encourage the use of performance standards in all energy-using

appliances, and in industrial, agricultural and commercial applications

of energy-using apparatus and processes;

4. to encourage transportation modes and equipment which conserve the

use of energy;

5. to foster, encourage and promote the prudent development and wise

use of all indigenous state energy resources including, but not limited

to, on-shore oil and natural gas, off-shore oil and natural gas, natural

gas from Devonian shale formations, small head hydro, wood, solar, wind,

solid waste, energy from biomass, fuel cells and cogeneration; and

6. to encourage a new ethic among its citizens to conserve rather than

waste precious fuels; and to foster public and private initiative to

achieve these ends at the state and local levels.

* 7. to conduct energy planning in an integrated and comprehensive

manner through development of a long-range energy master plan which

shall provide the framework for energy related decisions made throughout

the state.

* NB Expired January 1, 1984

Conformance with state energy policy. Every agency of the

state shall conduct its affairs so as to conform to the state energy

policy expressed in this chapter.

Purchase of passenger automobiles. a. The commissioner, in

consultation with the commissioner of the office of general services,

shall promulgate rules and regulations which shall require, at a

minimum, that all passenger automobiles purchased by or for the state or

any agency or public authority thereof, of which a majority of the

members are appointed by the governor, in any fiscal year which

commences on or after April first, nineteen hundred eighty-one, achieve

an average fuel economy not less than the applicable average fuel

economy standard established pursuant to the provisions of this section

for the model year which includes January first of such fiscal year.

b. The commissioner, in consultation with the office of general

services, shall be further authorized to establish minimum fuel economy

standards for different classes of passenger automobiles, as

appropriate, which shall be applicable to such vehicles purchased by or

for the state or any agency or public authority thereof subject to the

requirements of subdivision a of this section.

c. As used in this section:

(1) The term "passenger automobile" means any four wheeled vehicle

propelled by fuel which is manufactured for use on public streets, roads

and highways, which is rated at six thousand pounds gross vehicle weight

or less, and which the commissioner determines by rule is manufactured

primarily for use in the transportation of not more than ten

individuals.

(2) The term "passenger automobile" shall not include police, fire, or

other emergency vehicles, as defined by the commissioner, or snow

removal, salt-spreader, and garbage disposal vehicles, or any vehicles

which the commissioner determines, by regulation, should be excluded

from being defined as "passenger vehicles".

(3) The term "average fuel economy" means the total number of

passenger automobiles acquired in a fiscal year to which this section

applies divided by a sum of terms, each term of which is a fraction

created by dividing (i) the number of passenger automobiles so acquired

of a given model type, by (ii) the rated fuel economy of such model type

as determined and published by the federal agency with jurisdiction over

the determination and publication of such fuel economy ratings during

that fiscal year.

(4) The term "average fuel economy standard" means the average miles

per gallon to be achieved in the operation of passenger automobiles

manufactured in a particular model year and shall be as follows:

Model year Fuel economy standard

(miles per gallon)

1981 ................................................... 22.0

1982 ................................................... 24.0

1983 ................................................... 26.0

1984 ................................................... 27.0

1985 ................................................... 27.5

1991 and thereafter .................................... 29.0

Energy efficient appliances. 1. The president of the New

York state energy research and development authority, in consultation

with the commissioner of the office of general services, shall

promulgate minimum energy efficiency standards for appliances and energy

using products purchased by or for the state or any agency thereof in

accordance with the following schedule: by April first, two thousand

two, fluorescent lamp ballasts, central air conditioners, room air

conditioners, package terminal air conditioners and heat pumps; by

October first, two thousand two, electric motors, refrigerators,

freezers, refrigerator-freezers, water heaters, lamps and luminaries;

and by April first, two thousand three, dishwashers, clothes washers,

clothes dryers, furnaces, boilers and chillers. Additional minimum

energy efficiency standards for appliances and energy using products may

be added by the president of the New York state energy research and

development authority, in consultation with the commissioner of the

office of general services. Establishing minimum energy efficiency

standards for appliances and energy using products shall be based on

cost-effectiveness criteria and may be waived in the event that such

appliances or products are not widely available, or for other reasons as

determined by the president of the New York state energy research and

development authority, in consultation with the commissioner of the

office of general services. Such standards shall be designed to achieve

cost effective savings to the maximum extent practicable, taking into

account market availability.

2. New or replacement appliances or products purchased by or for the

state or any agency thereof shall meet or exceed standards promulgated

pursuant to this section, and all building designs or specifications for

new construction or substantial renovation for any building owned or

leased in whole by the state or any agency thereof shall incorporate

appliances or products which meet or exceed such standards.

State energy conservation plan. The office shall formulate

and from time to time revise a state energy conservation plan to be

submitted pursuant to the federal Energy Policy and Conservation Act of

1975 or any acts amendatory or supplemental thereto.

Coordination with environmental conservation law. The office

may review and comment in writing upon the statements of effects on the

use and conservation of energy resources made pursuant to section 8-0109

of the environmental conservation law. Such written comment shall be

made public.

Powers during energy or fuel emergency. 1. Upon a finding

and declaration by the governor that there exists or impends an energy

or fuel supply emergency, which declaration shall state the governor's

reasons for such finding, the commissioner shall be authorized, in

addition to the powers and duties set forth elsewhere in this chapter,

to the extent not in conflict with federal law, notwithstanding any

state or local law or contractual agreement, to:

(a) Allocate available supplies of energy or energy resources among

areas, users, persons or categories of persons or users. In allocating

available supplies, the commissioner shall give priority to energy and

energy resources use essential to public health and safety, and shall

thereafter attempt to allocate the remaining supply equitably and in a

manner designed to avoid undue hardship.

(b) Impose restrictions on any wasteful, inefficient, or non-essential

use of energy or energy resources, and upon the promotion of such uses.

(c) Waive state and local environmental protection requirements to the

extent necessary for emergency use of energy resources not meeting such

requirements for a period of not more than thirty days; provided,

however, that an additional thirty days may be granted for good cause.

Only one such waiver and one extention thereof may be granted any

facility within any six month period.

2. The powers granted to the commissioner pursuant to subdivision one

of this section shall be in addition to and not in limitation of any

emergency powers now vested in the governor which the governor may

choose to delegate to the commissioner.

3. In excerising the powers granted pursuant to subdivisions one and

two of this section, the commissioner may supersede any emergency power

heretofore vested in any other state agency.

4. No declaration of an energy or fuel supply emergency shall be

deemed effective for a period in excess of six months, and no power

exercised pursuant to this section shall be effective for a period in

excess of six months, unless each house of the legislature shall consent

to an extension for a specific period of time.

Violations; sanctions. 1. Every person shall obey, observe

and comply with the provisions of this chapter and with every order,

rule or regulation issued or made pursuant to this chapter, so long as

the same shall be and remain in force. Any person who violates any

provision of this chapter or who fails, omits or neglects to obey,

observe or comply with any order, rule or regulation issued pursuant to

this chapter, either personally or through an agent or employee, shall

forfeit to the people of the state of New York a civil penalty not to

exceed one thousand dollars for each and every offense or three times

the profit received from each violation, whichever is greater, except to

the extent that a different civil penalty is specifically provided for

by another provision of this chapter. Every violation pursuant thereto,

shall be a separate and distinct offense, and, in the case of a

continuing violation, every day's continuance thereof shall be a

separate and distinct offense, except to the extent that another

provision of this chapter specifically provides otherwise.

2. At the request of the commissioner, the attorney general may bring

an action or special proceeding to recover a civil penalty provided for

by this chapter in any court of competent jurisdiction in this state, in

the name of the people of the state of New York, except where another

provision of this chapter specifically provides for a different means of

recovering such penalty. A penalty may be released or compromised, and

an action or proceeding to recover the same may be settled and

discontinued, by the attorney general with the consent of the

commissioner. In any action or proceeding pursuant to this section, all

penalties incurred up to the time of commencing the same may be sued for

and recovered therein, and the commencement of an action or proceeding

shall not be a waiver of the right to recover any other penalty. All

moneys recovered in any such action or proceeding, together with the

costs thereof, shall be paid into the state treasury to the credit of

the general fund.

3. Alternatively, or in addition to any action or special proceeding

to recover a civil penalty provided for by this chapter, the attorney

general, at the request of the commissioner, may bring an action or

special proceeding in any court of competent jurisdiction to enjoin the

violation of any provision of this chapter, or any order, rule or

regulation issued pursuant to this chapter, and to seek other

appropriate relief, including but not limited to abatement of the

violation and restitution; provided, however, that to the extent that

another provision of this chapter specifically provides for injunctive

or other appropriate relief, its terms shall apply to such action or

proceeding. Upon a proper showing, a temporary restraining order, a

preliminary injunction, a permanent injunction and other appropriate

relief shall be granted.

Reserved power of the governor. Nothing contained in this

chapter shall be construed to limit, curtail, abolish or terminate any

function or power of the governor which he had prior to the effective

date hereof.

New York state business energy conservation loan program. 1.

As used in this section, unless a different meaning clearly appears from

the context, the term:

a. "Agri-business" shall mean (i) an individual, partnership or

corporation involved in farm production which (1) has had twenty

thousand dollars or more in gross farm production related sales in the

twelve-month period prior to the submission of a program application, or

from which at least fifty percent of the applicant's income was derived

during such period, or (2) if the applicant has not been in operation

for the prior twelve-month period, certifies that sales are projected in

excess of twenty thousand dollars, or at least fifty percent of the

applicant's income is projected to be derived, from farm production

during the next twelve-month period; or (ii) a business involved in food

processing.

b. "Financing institution" shall mean and include all banks, trust

companies, savings banks, savings and loan associations and credit

unions, whether incorporated, chartered, organized or licensed under the

laws of this state, any other state of the United States or the federal

government.

This term may also include public authorities, public benefit

corporations, units of local government, domestic insurance companies

and not-for-profit corporations, which make loans for improvements for

the benefit of eligible applicants.

c. "Eligible applicant" or "applicant" shall mean (i) a small to

medium size business or a not-for-profit corporation that is a veteran's

organization which employs less than five hundred workers or has gross

annual sales of less than ten million dollars, or (ii) an agri-business,

and which is the owner or which has a lease or management agreement

extending beyond the loan term of a building located within the state

for which an eligible energy conservation improvement is made, provided

that the commissioner may qualify this definition by rule and

regulation.

d. "Eligible energy conservation improvement" or "improvement" shall

mean the construction, alteration, repair or improvement to a building

or equipment affixed to, contained in or on the grounds of the building

which reduces energy consumption provided that: (i) the cost of such

improvement will be returned in savings in energy costs within a period

of not less than one year nor more than ten years as identified in an

energy audit, (ii) work on such improvement commenced after submittal of

an application under the program, and (iii) such construction,

alteration, repair or improvement is permissible under federal

requirements and court decisions applicable to overcharge funds

appropriated to this program.

e. "Energy audit" shall mean a process which identifies and specifies

the energy and cost savings which are likely to be realized by an

eligible energy conservation improvement.

f. "Loan" or "program loan" shall mean a loan from a financing

institution pursuant to an agreement with the office as part of the New

York state business energy conservation loan program.

g. "Program" shall mean the New York state business energy

conservation loan program.

h. "Region" shall mean one or more of the following named areas

comprised of the counties indicated:

(1) Buffalo-Rochester: Cattaraugus, Chautauqua, Erie, Genesee,

Livingston, Monroe, Niagara, Ontario, Orleans, Seneca, Wayne, Wyoming

and Yates counties;

(2) Syracuse-Southern Tier: Allegany, Broome, Cayuga, Chemung,

Chenango, Cortland, Delaware, Madison, Onondaga, Oswego, Otsego,

Schuyler, Steuben, Tioga and Tompkins counties;

(3) Central-Northern: Albany, Clinton, Essex, Franklin, Fulton,

Hamilton, Herkimer, Jefferson, Lewis, Montgomery, Oneida, Rensselaer,

Saratoga, Schenectady, Schoharie, St. Lawrence, Warren and Washington

counties;

(4) Westchester-Mid-Hudson: Columbia, Dutchess, Greene, Orange,

Putnam, Rockland, Sullivan, Ulster and Westchester counties;

(5) Long Island: Nassau and Suffolk counties;

(6) New York City: the five counties comprising the city of New York.

2. The commissioner is hereby authorized and directed to establish the

New York state business energy conservation loan program. The program

shall facilitate below market interest rate loans by financing

institutions within the state for eligible energy conservation

improvements made to eligible applicants as hereinafter provided.

3. The commissioner may enter into cooperative agreements with

financing institutions within the state for the financing with the

institution's own assets of eligible energy conservation improvements by

eligible applicants at a rate that is at least twenty-five percent below

the prime interest rate. Such interest rate shall initially be five

percent. The commissioner shall agree to utilize such funds as are

appropriated to this program and the earnings produced on such funds to

underwrite interest subsidies on loans made to eligible applicants, if

not inconsistent with federal requirements and court decisions directing

the payment of petroleum overcharge funds to the state. Such agreements

shall provide that: (i) the maximum loan per applicant shall be five

hundred thousand dollars, except that the commissioner may increase the

maximum loan amount up to one million dollars for specific types of

improvements by rule and regulation, (ii) the duration of the loan shall

not to exceed ten years, (iii) program loans shall be made only after an

application has been made to the office, the office has approved the

technical merits of the proposed improvement and the office has notified

the financing institution of its approval and the amount of interest

reduction upon the loan to be funded pursuant to such agreement, and

(iv) loan agreements with program applicants shall provide for a post

installation inspection, as deemed necessary by the office.

4. The commissioner shall apportion the moneys appropriated for this

program for the purpose of providing interest subsidies to applicants

within each of the six regions of the state identified in paragraph g of

subdivision one of this section based on the ratio, calculated by the

commissioner, which reflects:

a. the volume of refined petroleum products consumed within that

region during the period beginning September first, nineteen hundred

seventy-three, and ending January twenty-eighth, nineteen hundred

eighty-one, compared to

b. the volume of refined petroleum products consumed within the six

regions during such period.

Such calculation shall be made by the commissioner upon estimates

determined by him in reliance upon reasonably available information.

The commissioner may reapportion the funds available for interest

subsidies for applicants within any region under this subdivision for

use in one or more of the other regions upon finding that participation

in the program within the former region would not be adversely affected,

and that there exists in the latter region or regions inadequate funds

to satisfy the demand for program participation. In any fiscal year of

the state, the amount of funds available to applicants within any region

may be reduced by not more than twenty-five percent of the total amount

apportioned for such region. A copy of the commissioner's finding shall

be given to the chairman of the senate finance committee and the

chairman of the assembly ways and means committee.

5. In addition to the authority granted under subdivision three of

this section, the commissioner shall be authorized to utilize monies

appropriated to this program for the purpose of providing loan

guaranties and principal reductions for eligible applicants, if such

uses are permissible under the conditions applicable to the appropriated

overcharge funds. Principal reductions shall be limited to the amount of

the interest subsidy which would otherwise be available to an eligible

applicant under subdivision three of this section.

6. In implementing the program, the commissioner is authorized to take

such action as he deems necessary and appropriate which may include but

not be limited to the promulgation of rules and regulations formulated

after consultation with the energy research and development authority,

the department of commerce and the department of financial services.

Such rules and regulations may include but not be limited to

requirements for applications and supporting materials and criteria for

the selection of cooperating financing institutions.

State energy planning board. 1. There shall be established a

state energy planning board, hereinafter referred to as the "board",

which shall consist of the chair of the public service commission, the

commissioner of environmental conservation, the chief executive officer

of the New York power authority, the commissioner of economic

development, the commissioner of transportation, the commissioner of

labor, the commissioner of the division of homeland security and

emergency services, the commissioner of agriculture and markets, the

commissioner of health, the secretary of state and the president of the

New York state energy research and development authority. The governor,

the speaker of the assembly and the temporary president of the senate

shall each appoint one additional representative to serve on the board;

in addition, the secretary of state shall appoint, from the utility

intervention unit with the consumer protection division established in

section ninety-four-a of the executive law, an additional person to

serve on the board. The presiding officer of the federally designated

electric bulk system operator (BSO) shall serve as a non-voting member

of the board. Any decision or action by the board shall be by majority

vote. The president of the New York state energy research and

development authority shall serve as chair of the board. Members of the

board may designate an executive staff representative to participate on

the board on their behalf.

2. Regional planning councils shall be established. Two regions shall

be established as follows:

(a) Downstate region - New York City and Dutchess, Nassau, Orange,

Putnam, Rockland, Suffolk, Ulster and Westchester counties;

(b) Upstate region - Albany, Allegany, Broome, Cattaraugus, Cayuga,

Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware,

Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer,

Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery, Niagara,

Oneida, Onondaga, Ontario, Orleans, Oswego, Otsego, Rensselaer,

Saratoga, Schenectady, Schoharie, Schuyler, Seneca, St. Lawrence,

Steuben, Sullivan, Tioga, Tompkins, Warren, Washington, Wayne, Wyoming

and Yates counties.

The governor, temporary president of the senate and the speaker of the

assembly shall each appoint three regional planning council members per

region. Regional planning council members shall serve without

compensation, and shall have their principal residence within the region

for which they are appointed. Such regional council members may solicit

input from stakeholder interests within their region, including but not

limited to local governments, municipal utilities, rural electric

cooperatives, utilities, labor unions, ratepayers, businesses, trade

associations, generators, and community organizations. Each regional

planning council shall transmit to the board a report containing any

recommendations specific to its region on a schedule determined by the

board to be appropriate for consideration of such report in the

development of the draft energy plan.

3. Staff services shall be performed by personnel of the department of

public service, the department of environmental conservation, the New

York power authority, the department of transportation, the department

of economic development, the division of homeland security and emergency

services and the New York state energy research and development

authority, as directed by the board. Assistance shall also be made

available, as requested by the board, from other agencies, departments

and public authorities of the state. The board may provide for its own

representation in all actions or proceedings in which it is a party.

4. The board shall have the powers: (a) to adopt a state energy plan

in accordance with the provisions of this article;

(b) to adopt rules and regulations as necessary or appropriate to

implement this article;

(c) to issue subpoenas and subpoenas duces tecum; and

(d) to authorize any person to conduct hearings which the board is

authorized to conduct, to take testimony with respect to the subject or

matter under investigation, and to report the testimony to the board. In

the conduct of such hearings, any person so authorized by the board

shall have all the powers of the board.

5. The board shall in the consideration and development of policies,

programs, and other actions, be guided by the goals of: improving the

reliability of the state's energy systems; insulating consumers from

volatility in market prices; reducing the overall cost of energy in the

state; and minimizing public health and environmental impacts, in

particular, environmental impacts related to climate change. Each energy

plan shall also identify policies and programs designed to maximize

cost-effective energy efficiency and conservation activities to meet

projected demand growth.

(a) The board shall identify the most appropriate state agency or

authority with the responsibility for implementing or overseeing such

prioritized policies and programs.

(b) Each agency or authority charged with implementing a specific

policy or program in the energy plan shall report to the board annually

regarding the original goal of such policy or program, steps that have

been taken to implement such policy or program, progress in attaining

goals, adjustments to the program or goals and reasons why adjustments

are needed, and anticipated date of completion.

(c) The board shall use such progress reports in the completion of

each subsequent energy plan and in each of the required biennial reports

as stated in section 6-106 of this article.

6. The board shall require any contractor or subcontractor awarded a

contract pursuant to the provisions of this article to comply, and

otherwise exercise all of its responsibilities and conduct all of its

activities consistent with the provisions of article fifteen-A of the

executive law with regards to the utilization and participation of

certified minority and women-owned business enterprises.

State energy plan. 1. The board shall adopt a state energy

plan in accordance with the provisions of this article.

2. The state energy plan shall include: (a) forecasts for a minimum

period of ten years, and for such other periods as the board may

determine, of: (i) demand for electricity, natural gas, coal, petroleum

products, including heating and transportation fuels, and alternate

fuels, including ethanol and other biofuels, to the extent possible,

taking into account energy conservation, load management and other

demand-reducing measures which can be achieved in a cost-effective

manner, including the basis for such projection, including an

examination of possible alternate levels of demand and discussion of the

forecasting methodologies and input variables used in making the

forecasts;

(ii) energy supply requirements needed to satisfy demand for

electricity, natural gas, coal, petroleum products, including heating

and transportation fuels, and alternate energy sources and fuels, for

each region of the state, and for the state as a whole, including with

respect to electricity, the amount of capacity needed to provide

adequate reserve margins and capacity needed to ensure reliability and

competitive markets in the various regions of the state;

(iii) an assessment of the ability of the existing energy supply

sources and the existing transmission or fuel transportation systems, to

satisfy, together with those sources or systems reasonably certain to be

available, such energy supply requirements, indicating planned

additions, retirements, deratings, substantial planned outages, and any

other expected changes in levels of generating and production capacity;

(iv) additional electric capacity and/or transmission or fuel

transportation systems needed to meet such energy supply requirements

that will not be met by existing sources of supply and those reasonably

certain to be available, where such analysis should identify system

constraints and possible alternatives available, both supply-side and

demand-side alternatives, including but not limited to distributed

generation, energy efficiency and conservation measures, to redress such

constraint; and

(v) projected greenhouse emissions.

(b) Identification and assessment of the costs, risks, benefits,

uncertainties and market potential of energy supply source alternatives,

including demand-reducing measures, renewable energy resources of

electric generation, distributed generation technologies, cogeneration

technologies, biofuels and other methods and technologies reasonably

available for satisfying energy supply requirements which are not

reasonably certain to be met by the energy supply sources identified in

paragraph (a) of this subdivision, provided that such analysis shall

include the factors identified in paragraph (d) of this subdivision;

(c) Identification and analysis of emerging trends related to energy

supply, price and demand, including trends related to the transportation

sector;

(d) An assessment of current energy policies and programs, and their

contributions to achieving long-range energy planning objectives

including, but not limited to, the least cost integration of energy

supply sources, energy transportation and distribution system and

demand-reducing measures for satisfying energy supply requirements,

giving due regard to such factors as required capital investments, cost,

ratepayer impacts, security and diversity of fuel supplies and

generating modes, protection of public health and safety, adverse and

beneficial environmental impacts, conservation of energy and energy

resources, the ability of the state to compete economically, and any

other policy objectives deemed appropriate;

(e) In order to assist the board in such evaluation, the power

authority of the state of New York and the Long Island power authority

shall individually submit to the planning board: (i) a strategic plan

specifying the mission and goals of the authority, the policies and

programs utilized to fulfill such mission and goals, and an explanation

of how such policies and programs relate to the state energy plan, (ii)

an annual five-year operating plan, and (iii) a ten-year projected

capital budget for their respective operations. Such plans shall include

major new capital and programmatic initiatives, as well as descriptions

and achievements of existing programs, including program objectives and

the numbers of clients and/or customers served for each service or

program;

(f) An analysis of security issues, considering both natural and human

threats to the state's energy systems;

(g) An environmental justice analysis;

(h) An assessment of the ability of urban planning alternative,

including but not limited to smart growth and mass transportation

improvements to reduce energy and transportation fuel demand;

(i) An inventory of greenhouse gas emissions, and strategies for

facilitating and accelerating the use of low carbon energy sources

and/or carbon mitigation measures;

(j) Recommendations, as appropriate and desirable, for administrative

and legislative actions to implement such policies, objectives and

strategies;

(k) Assessment of the impacts of implementation of the plan upon

economic development, health, safety and welfare, environmental quality,

and energy costs for consumers, specifically low-income consumers; and

(l) Such additional information as the board deems appropriate, such

as but not limited to, information developed from consultation with the

BSO.

3. The elements of the state energy plan as enumerated in subdivision

two of this section shall be provided on a statewide basis, and as

determined feasible and necessary by the board, for the two regions

described in subdivision two of section 6-102 of this article.

4. In the development of the state energy plan the board shall, to the

extent practicable, take cognizance of any comprehensive reliability

planning process undertaken by the BSO.

5. (a) The state energy plan shall provide guidance for energy-related

decisions to be made by the public and private sectors within the state.

(b) Any energy-related action or decision of a state agency, board,

commission or authority shall be reasonably consistent with the

forecasts and the policies and long-range energy planning objectives and

strategies contained in the plan, including its most recent update;

provided, however, that any such action or decision which is not

reasonably consistent with the plan shall be deemed in compliance with

this section, provided that such action or decision includes a finding

that the relevant provisions of the plan are no longer reasonable or

probable based on a material and substantial change in fact or

circumstance, and a statement explaining the basis for this finding.

(c) Nothing in this section shall limit the authority of any state

agency, board, commission or authority to deny an application to

construct, operate or modify an energy facility on environmental or

public health and safety grounds, or that alternate means of energy

procurement or alternate location for an energy facility can be secured.

(d) A state agency, board, commission or authority may take official

notice of the most recent final state energy plan adopted by the board

prior to any final energy-related decision by such agency, board,

commission or authority.

Conduct of the state energy planning proceeding. 1. Every

four years, the board shall adopt a state energy plan, which addresses

each item identified in subdivision two of section 6-104 of this article

provided, however, the board may adopt such a plan more frequently for

good cause shown. The board shall prepare biennial reports, every second

year following the issuance of the final state energy plan, including a

discussion and evaluation of the ability of the state and private

markets to implement the policies, programs, and other recommendations

as found in the state energy plan, and recommendations for new or

amended policies as needed to continue successful movement towards

implementation and realization of such policies and programs.

2. The board shall conduct a state energy planning proceeding,

consistent with the need to develop the plan in a timely manner, which

shall provide for the following at a minimum:

(a) The filing of information by energy suppliers as specified in

subdivision three of this section;

(b) The preparation and issuance of a draft plan, subsequent to the

filing of information as specified in subdivision three of this section,

which shall address each item identified in subdivision two of section

6-104 of this article;

(c) Public comment hearings, with at least three in each region

described in subdivision two of section 6-102 of this article and

provide an opportunity to submit written comments, subsequent to the

issuance of a draft plan, to obtain views and comments of interested

persons on any aspect of, or issue addressed in, such draft plan;

(d) Evidentiary hearings may be held, at the discretion of the board,

in response to a written request by an interested person or persons

seeking to provide evidentiary material or data subsequent to the

issuance of a draft plan, on issues identified in subdivision two of

section 6-104 of this article; and

(e) Submission of a notice for any hearing or opportunity for comment

provided for pursuant to this subdivision for publication within the

state register.

3. As determined by the board in each instance to be appropriate with

respect to the particular entity or entities from which information, if

any, shall be required, the information to be provided to the board by

energy transmission and distribution companies, electric, gas, or steam

corporations, major energy suppliers including owners or operators of

electric generation facilities, commodity and/or end-use energy service

providers, state agencies or authorities, including the power authority

of the state of New York and the Long Island power authority, and/or

others, shall include the following:

(a) Comprehensive long-range plans for future operations:

(i) a forecast of electricity demands over a period as the board may

determine appropriate, including annual in-state electric energy sales

and summer and winter peak loads by utility service area where

applicable, and total any annual in-state electric energy sales and

coincident peak load, specifically identifying the extent to which

energy conservation, load management and other demand-reducing measures,

and electric energy generated by cogeneration, small hydro and alternate

energy production facilities, including renewable energy technologies

and fuel cells, consumed on site, have been incorporated within such

forecast;

(ii) a forecast of electricity supply requirements over a period as

the board may determine appropriate, by utility service area where

applicable, specifically identifying the reserve margins required for

reliable electric service, the transmission and distribution losses

assumed, and the amount of out-of-state sales commitments;

(iii) an assessment of the ability of existing electricity supply

sources, and those reasonably certain to be available, to satisfy

electricity supply requirements, including electric generating

facilities which can be retained in service beyond their original design

life through routine maintenance and repairs;

(iv) an inventory of: (A) all existing electric generating and

transmission facilities including those owned or operated by the power

authority of the state of New York and the Long Island power authority;

(B) electric generating and transmission facilities planned or under

construction including the power authority of the state of New York and

the Long Island power authority, including the dates for completion and

operation; (C) the anticipated retirement dates for any electric

generating facilities currently operated including those owned or

operated by the power authority of the state of New York and the Long

Island power authority; (D) land owned or leased including that owned or

leased by the power authority of the state of New York and the Long

Island power authority and held for future use as sites for major

electric generating facilities; and (E) electric generating,

transmission, and related facilities operated, or planned to be

operated, by others, to the extent information concerning the same is

known;

(v) recommended supply additions and demand reducing measures for

satisfying the electricity supply requirements, not reasonably certain

to be met by electricity supply sources identified in subparagraph (iii)

of this paragraph, including the life extension of existing electric

generating facilities, and reasons therefor;

(vi) a statement of research and development plans, including

objectives and programs in the areas of energy conservation, load

management, electric generation and transmission, new energy

technologies and pollution abatement and control, which are not funded

through regulatory required programs, recent results of such programs

undertaken or funded to date, and an assessment of the potential impacts

of such results;

(vii) a projection of estimated electricity prices to consumers over

the forecast period, and a sensitivity analysis of that forecast

relating to a number of factors including fuel prices and the levels of

available capacity and demand in the regions of the state;

(viii) a description of the load forecasting methodology and the

assumptions and data used in the preparation of the forecasts,

specifically including projections of demographic and economic activity

and such other factors, statewide and by service area, which may

influence electricity demand, and the bases for such projections;

(ix) proposed policies, objectives and strategies for meeting the

state's future electricity needs; and

(x) such additional information as the board may, by regulation,

require to carry out the purposes of this article.

(b) All providers of natural gas transmission, distribution and/or

marketing services to customers shall individually prepare and submit a

comprehensive long-range plan for future operations, which shall

include, as appropriate:

(i) a forecast over a period as the board may determine appropriate,

by utility service area, of estimated annual in-state gas sales, winter

season sales and peak day sales by appropriate end-use classifications,

specifically identifying the extent to which energy conservation

measures and the sale of gas owned by persons other than natural gas

transmission and distribution utilities have been incorporated within

such forecast;

(ii) a forecast of gas supply requirements over a period as the board

may determine appropriate, by utility service area, specifically

identifying the amounts of gas needed to meet severe weather conditions,

lost and unaccounted for gas, out-of-state sales commitments and

internal use;

(iii) an assessment of the ability of existing gas supply sources, and

those reasonably certain to be available, to satisfy gas supply

requirements;

(iv) an inventory of: (A) all existing supply sources, storage

facilities, and transmission facilities which are used in providing

service within the state, (B) the transmission and storage facilities

under construction which would be used in providing service within the

state, their projected costs and capacities, including peaking capacity,

(C) transmission facility additions proposed to be constructed by

natural gas transmission and distribution utilities, (D) transmission

facilities operated, or planned to be operated, by others, to the extent

information concerning the same is known;

(v) recommended supply additions and demand-reducing measures for

satisfying the gas supply requirements, not reasonably certain to be met

by gas supply sources identified in subparagraph (iii) of this paragraph

and the reasons therefor;

(vi) a projection of estimated gas prices to consumers over the

forecast period, and a sensitivity analysis of that forecast relating to

a number of factors including the levels of commodity supply

availability, of available pipeline and storage capacity, and of demand

in the regions of the state;

(vii) a description of the load forecasting methodology and the

assumptions and data used in the preparation of the forecasts,

specifically including projections of demographic and economic activity

and such other factors, statewide and by service area where applicable,

which may influence demand for natural gas, and the bases for such

projections;

(viii) a statement of research and development plans, including

objectives and programs in the areas of energy conservation and new

energy technologies, recent results of such programs undertaken or

funded to date, and an assessment of the potential impacts of such

results;

(ix) proposed policies, objectives and strategies for meeting the

state's future gas needs; and

(x) such additional information as the board may, by regulation,

require to carry out the purposes of this article.

(c) Such information from major petroleum suppliers and major coal

suppliers as the board may require to carry out the purposes of this

article.

(d) Such other information from owners and operators of electric

generating power plants as the board may require to carry out the

purposes of this article.

(e) A single comprehensive submission from industry groups, trade

associations, or combinations of such groups and associations in place

of submissions by individual member companies.

4. Any information filed under this section that is claimed to be

confidential shall be treated in accordance with regulations adopted by

the board pertaining to the determination of confidential status and the

retention of confidential records.

5. Copies of the draft plan, and all non-confidential information and

comments filed pursuant to this section shall be made available to the

public for inspection.

6. The board may amend the state energy plan, or aspects thereof, upon

its own initiative or upon the written application of any interested

person. In connection with any such amendment, the board may require the

filing of such information as may be required, consistent with

regulation. Prior to adopting any proposed amendment to an element of

the plan identified in subdivision two of section 6-104 of this article,

the board shall hold public comment hearings and may hold evidentiary

hearings upon the written application of an interested party. Prior to

adopting a proposed amendment to any element of the plan, the board

shall prepare and publish in the state register notice of any draft

amendment and reasons therefor and shall solicit public comments

thereon. The board shall adopt an amendment to the state energy plan, or

aspects thereof, upon a finding by the board that there has been a

material and substantial change in fact or circumstance since the most

recent plan was adopted. A decision of the board that no amendment is

necessary, together with the reasons supporting such determination,

shall be final.

* 7. Any person who participated in the state energy planning

proceeding or any person who sought an amendment of the state energy

plan pursuant to subdivision six of this section, may obtain, pursuant

to article seventy-eight of the civil practice law and rules, judicial

review of the board's decision adopting a plan, or any amendment

thereto, or of the board's decision not to amend such plan pursuant to

subdivision six of this section. Any such special proceeding shall be

brought in the appellate division of the supreme court of the state of

New York for the third judicial department. Such proceeding shall be

initiated by the filing of a petition in such court within thirty days

after the issuance of a decision by the board. The proceeding shall have

a lawful preference over any other matter, shall be heard on an

expedited basis and shall be completed in all respects, including any

subsequent appeal, within one hundred eighty days of the filing of the

petition. Where more than one such petition is filed, the court may

provide for consolidation of the proceedings. Notwithstanding the

provisions of articles seven and eight of the public service law, the

procedure set forth in this section shall constitute the exclusive means

for seeking judicial review of any element of the plan.

* NB Effective until December 31, 2040

* 7. Any person who participated in the state energy planning

proceeding or any person who sought an amendment of the state energy

plan pursuant to subdivision six of this section, may obtain, pursuant

to article seventy-eight of the civil practice law and rules, judicial

review of the board's decision adopting a plan, or any amendment

thereto, or of the board's decision not to amend such plan pursuant to

subdivision six of this section. Any such special proceeding shall be

brought in the appellate division of the supreme court of the state of

New York for the third judicial department. Such proceeding shall be

initiated by the filing of a petition in such court within thirty days

after the issuance of a decision by the board. The proceeding shall have

a lawful preference over any other matter, shall be heard on an

expedited basis and shall be completed in all respects, including any

subsequent appeal, within one hundred eighty days of the filing of the

petition. Where more than one such petition is filed, the court may

provide for consolidation of the proceedings. Notwithstanding the

provisions of article seven of the public service law, the procedure set

forth in this section shall constitute the exclusive means for seeking

judicial review of any element of the plan.

* NB Effective December 31, 2040

8. Proceedings conducted pursuant to this section shall not be

considered part of an adjudicatory proceeding as defined in subdivision

three of section one hundred two of the state administrative procedure

act, or part of a rule making proceeding held under subdivision one of

section two hundred two of the state administrative procedure act.

Supplemental studies for future energy planning. The board

shall undertake the following studies to supplement information for

future energy planning:

1. On or before September first, two thousand twelve, and every four

years thereafter, the board shall undertake a study of the overall

reliability of the state's electric transmission and distribution

system. The board may contract with an independent and competitively

selected contractor to undertake such study. The board shall prepare a

report on such study's findings and legislative recommendations. The

board shall transmit such report along with the reliability study to the

governor, the speaker of the assembly, the temporary president of the

senate, the chair of the assembly energy committee, and the chair of the

senate energy and telecommunications committee.

2. Such study shall include, at a minimum, an assessment of each of

the following:

(a) the current and projected reliability of the electric power system

over the term of the planning period, with specific focus on

transmission systems and distribution systems within the state. The

assessment shall examine: (i) investment in infrastructure, including

capital improvements, expansions, and maintenance; and (ii) workforce

utilization.

(b) the potential impact of the following on distribution system

reliability and on each factor enumerated in paragraph (a) of this

subdivision: (i) distributed electric generation, especially generation

using renewable or innovative energy resources; (ii) energy conservation

and efficiency; (iii) load control and peak saving measures; (iv)

corporate reorganization of electric utilities; (v) performance

ratemaking, multi-year rate agreements, and other departures from

traditional regulatory mechanisms; and (vi) large scale industrial

development.

(c) the potential impact of the following on transmission system

reliability: (i) each factor enumerated in paragraph (b) of this

subdivision; (ii) changes in protocols for electricity dispatched

through the BSO or its successor or successors; (iii) accommodation of

proposed new electric generation facilities or repowering or life

extension of existing facilities; and (iv) the market-driven nature of

decisions to build, size, and locate such facilities.

3. The board and any contractors it may retain for such purposes shall

consult with entities that have resources and expertise to assist in

such study, including, but not limited to, the BSO, public utilities,

and any other electric company or trade organizations.

(a) The Long Island power authority, the power authority of the state

of New York, the department of public service, and the BSO shall

cooperate with the board and its contractor.

(b) The Long Island power authority and the power authority of the

state of New York are authorized, as deemed feasible and advisable by

their respective boards, to make a voluntary contribution toward the

study.

Transfer of functions of the atomic energy council. All the

functions and powers possessed by and all the obligations and duties of

the atomic energy council, created and established in the commerce law

pursuant to and by chapter nine hundred forty-seven of the laws of

nineteen hundred sixty-eight, which council is hereby abolished, are

hereby transferred and assigned to, assumed by and devolved upon the

state energy office.

Transitional provisions. 1. Upon the transfer of functions

pursuant to this article within the state fiscal year within which this

act shall take effect, provision shall be made for the transfer to the

state energy office of employees of all directly affected state agencies

whom the commissioner determines to be required by the office, subject

to the approval of the director of budget. Employees so transferred

shall be transferred without further examination or qualification and

shall retain their respective civil service classifications and status

until or unless reclassified or reallocated. For the purpose of

determining the employees holding permanent appointments in competitive

class positions to be transferred, such employees shall be selected in

each class of positions in the order of their original appointment, with

due regard to the right of preference in retention of disabled and

nondisabled veterans. Any such employee who, at the time of such

transfer, has a temporary or provisional appointment shall be

transferred subject to the same right of removal, examination or

termination as though such transfer had not been made. Employees holding

permanent appointments in competitive class positions who are not

transferred pursuant to this section shall have their names entered upon

an appropriate preferred list for reinstatement pursuant to the civil

service law.

2. The directors and officers of state agencies, the functions,

powers, duties and obligations of which are transferred by this chapter

shall deliver to the state energy office all books, papers, records and

property of such agencies, and of the directors and officers thereof

pertaining to the functions herein transferred.

3. For the purpose of succession to all functions, powers, duties and

obligations of state agencies, or directors and officers thereof,

transferred and assigned to, devolved upon and assumed by the state

energy office, such office shall be deemed and held to constitute the

continuation of such agencies and not a different agency or authority.

4. Any business or other matter undertaken or commenced by any agency

or the officers and directors thereof, pertaining to or connected with

the functions, powers, obligations and duties hereby transferred and

assigned, and pending on the effective date of this chapter, may be

conducted and completed by the state energy office in the same manner

and under the same terms and conditions and with the same effect as if

conducted and completed by such agencies, directors and officers

thereof.

5. All rules, regulations, acts, determinations and decisions of all

agencies and directors and officers thereof, pertaining to the functions

transferred and assigned by this chapter to the state energy office in

force at the time of such transfer, assignment, assumption or devolution

shall continue in force and effect as rules, regulations, acts,

determinations and decisions of the state energy office until duly

modified or repealed.

6. Whenever any agencies or directors and officers thereof, the

functions, powers obligations and duties of which are transferred by

this chapter to the state energy office are referred to or designated in

any law, contract or document pertaining to the functions, powers,

obligations and duties hereby transferred and assigned, such reference

or designation shall be deemed to refer to the state energy office.

7. No existing right or remedy of any character shall be lost,

impaired or affected by reason of this chapter.

8. No action or proceeding pending at the time when this chapter shall

take effect, brought by or against any agencies or directors and

officers thereof, the functions, powers, obligations and duties of which

are transferred by this chapter to the state energy office shall be

affected by any provisions of this chapter, but the same may be

prosecuted or defended in the name of the state energy office. In all

such actions and proceedings, the state energy office, upon application

to the court, shall be substituted as a party.

9. All appropriations or reappropriations heretofore made to any

agency for the functions and purposes herein transferred to the state

energy office by this chapter, segregated pursuant to law, or for

employees transferred pursuant to this chapter, to the extent of

remaining unexpended or unencumbered balances thereof, whether allocated

or unallocated and whether obligated or unobligated, are hereby

transferred to and made available for use and expenditure by the state

energy office subject to the approval of the director of the budget for

the same purposes for which originally appropriated or reappropriated

and shall be payable on vouchers certified or approved by the

commissioner on audit and warrant of the comptroller. Payments for

liabilities for expenses of personal service, maintenance and operation

heretofore incurred by such agencies, in connection with the functions

herein transferred, shall also be made on vouchers or certificates

approved by the commissioner on audit and warrant of the comptroller.

Purpose. In furtherance of the policy set forth in

subdivision two of section 3-101 of this chapter, the legislature hereby

directs that state lighting efficiency standards for existing buildings

be promulgated to protect the health, safety, security and welfare of

the people of the state, to conserve energy by ways including

eliminating wasteful artificial night lighting and to reduce public

expenditure for energy; and that such standards ensure that economically

reasonable energy conservation techniques be used in the lighting of all

such buildings in the state. It is a further purpose of this article to

encourage, assist and promote compliance with such standards by the

owners and lessors of such buildings.

Definitions. For the purposes of this article, the following

words and phrases shall have the following meanings unless a different

meaning is plainly required by the context:

1. "Municipality." Any county, city, town, village, school district,

district corporation, public authority or the port authority of New York

and New Jersey to the extent its facilities are located within the state

of New York.

2. "Existing buildings." Any building, other than a residence or

apartment building, whose operation requires on the average in excess of

5000 kwh of electricity per month for lighting purposes in any twelve

month period and which was in existence or under construction, or for

which an application for a building permit was made and plans filed in

this state on or before January first, nineteen hundred seventy-nine.

3. "Standards." The state lighting efficiency standards for existing

buildings provided for in this article, or any portion thereof, any

modification of or amendments thereto.

Application. On or before April first, nineteen hundred

eighty, the commissioner shall promulgate, and thereafter may amend from

time to time, standards relating to the lighting of all existing

buildings, or classes of such buildings, for purposes of minimizing the

consumption of energy and providing for the efficient utilization of the

energy expended for lighting in the use and occupancy of such buildings.

Such standards shall be cost effective and shall not impair the health

and safety of the occupants of the property. The standards shall be

deemed cost effective if the cost of implementing them would be equal to

or less than the present value of energy and maintenance savings that

would be expected over a seven-year period in a building to which the

standards are applicable.

State lighting efficiency standards for existing public

buildings. In addition to meeting the purposes set forth in section

8-101 of this article, the standards shall be designed to satisfy the

following specific criteria:

1. The standards, so far as may be practicable, shall be formulated in

terms of performance objectives.

2. The standards, so far as may be practicable, shall further the

improvement of energy conservation lighting practices, methods,

equipment, materials and techniques.

3. The standards shall encourage economically reasonable energy

conserving lighting techniques to be used in the lighting of all

existing buildings.

4. The standards shall provide reasonable uniform standards and

requirements for lighting and lighting materials for the improvement in

efficiency of lighting systems.

Limitation of application. Notwithstanding the provisions of

subdivision one of section 8-103 of this article, the commissioner may

limit by regulation the application of any standards so as to include or

exclude classes or types of buildings, according to the use thereof, or

according to any other distinction as may make differentiation of

separate classification or regulation necessary, proper or desirable, so

long as such limitations of the application of the standards are

consistent with the purposes of this article, as set forth in section

8-101 of this article, and the criteria set forth in section 8-104 of

this article.

Administration and enforcement. 1. With respect to existing

buildings owned by the state, this article shall be administered by the

commissioner and the standards enforced by the office of general

services in accordance with procedures to be developed by the

commissioner after consultation with the commissioner of the office of

general services. The commissioner may request any department, division,

board, bureau, commission, or other state agency to provide such

information, data and assistance as is necessary to enable the

commissioner to effectuate the purposes of this article, and such

departments, divisions, boards, bureaus, commissions and other state

agencies are authorized to provide, to the extent feasible, such

information, data and assistance.

2. With respect to existing buildings owned by any municipality, the

administration and enforcement of the standards shall be the

responsibility of such municipality and the manner of such

administration and enforcement shall be prescribed by local law or

ordinance or by order or resolution of the governing body of any such

municipality.

3. a. With respect to all other existing buildings, the administration

and enforcement of the standards shall be the responsibility of the

office, provided, however, that the commissioner may enter into an

agreement with any city, town or village delegating all or part of such

responsibility. On or before April first, nineteen hundred eighty, the

office shall adopt regulations providing for the administration and

enforcement of such standards as well as providing for the wide

dissemination of such standards to the general public. Such regulations

shall include a requirement that the owner of record of an existing

building or a real estate management company responsible for the

management and operation of any such building or the tenant or tenants

of leased premises in any such building, submit sworn statements to the

office, or where applicable, to such a city, town or village, certifying

that the building or leased premises are in full compliance with the

standards, or alternatively, that the building or leased premises will

be in such compliance on or before October first, nineteen hundred

eighty-one.

b. Any person who knowingly fails to submit such a certification

statement as required by this subdivision or the regulations adopted

hereunder or who knowingly fails to bring such a building or leased

premises into compliance with the standards by October first, nineteen

hundred eighty-one, shall be liable for a civil penalty of up to one

thousand dollars. The attorney general is hereby authorized to commence

an action or special proceeding in any court of competent jurisdiction

in the state in the name of the people of the state to recover any such

penalty, or for injunctive relief to compel compliance with the

standards, when requested to do so by the commissioner. All monies

recovered in any such action or special proceeding, together with the

costs thereof shall be paid into the state treasury to the credit of the

general fund. Any such action or proceeding may be compromised or

discontinued on application of the commissioner upon such terms as the

court shall approve and order.

4. Where the commissioner has entered into an agreement with any city,

town or village, delegating all or part of the office's responsibility

for the administration and enforcement of the standards, any officer or

department designated by a local law or ordinance of any such city, town

or village shall have power to conduct investigations regarding the

compliance with the provisions of this subdivision and to institute an

action or special proceeding in any court of competent jurisdiction to

enjoin any violation of this subdivision and to recover the penalty

specified. All monies recovered in any such action or special proceeding

together with the costs thereof, shall be paid to the treasurer of any

such city, town or village and be available for any lawful city, town or

village purpose.

Municipal regulations. 1. Nothing in this article shall be

construed as abrogating or impairing the power of any municipality to

enforce the provisions of any local building regulations pertaining to

lighting standards in existing buildings, provided that such provisions

are not inconsistent with the standards.

2. Any municipality which adopts local lighting efficiency standards

for existing buildings in accordance with this section shall file a copy

of such standards and any amendments or revisions thereof with the

commissioner within thirty days after promulgation or adoption of such

standards, amendments or revisions. The failure to comply with the

provisions of this subdivision shall not impair or otherwise affect the

validity of such local standards or amendments or revisions thereof.

Purpose. The purpose of this article is to obtain long-term

energy and cost savings for agencies and municipalities by facilitating

prompt incorporation of energy conservation improvements or energy

production equipment, or both, in connection with buildings or

facilities owned, operated or under the supervision and control of

agencies or municipalities, in cooperation with providers of such

services and associated materials from the private sector. Such

arrangements will improve and protect the health, safety, security, and

welfare of the people of the state by promoting energy conservation and

independence, developing alternate sources of energy, and fostering

business activity.

Definitions. For the purposes of this article, the following

words and phrases shall have the following meanings unless a different

meaning is plainly required by the context.

1. "Agency" means any state department, agency, board, commission,

office, or division.

2. "Municipality" means a municipal corporation, as defined in section

two of the general municipal law, school district, board of cooperative

educational services, fire district, district corporation or special

improvement district governed by a separate board of commissioners.

3. "Public authority" means any public authority, public benefit

corporation, or the port authority of New York and New Jersey, to the

extent its facilities are located within the state of New York.

4. "Energy performance contract" means an agreement for the provision

of energy services, including but not limited to electricity, heating,

ventilation, cooling, steam or hot water, in which a person agrees to

install, maintain or manage energy systems or equipment to improve the

energy efficiency of, or produce energy in connection with, a building

or facility in exchange for a portion of the energy savings or revenues.

Energy performance contracts. 1. Notwithstanding any other

provision of law, any agency, municipality, or public authority, in

addition to existing powers, is authorized to enter into energy

performance contracts of up to thirty-five years duration, provided,

that the duration of any such contract shall not exceed the reasonably

expected useful life of the energy facilities or equipment subject to

such contract.

2. Any energy performance contract entered into by any agency or

municipality shall contain the following clause: "This contract shall be

deemed executory only to the extent of the monies appropriated and

available for the purpose of the contract, and no liability on account

therefor shall be incurred beyond the amount of such monies. It is

understood that neither this contract nor any representation by any

public employee or officer creates any legal or moral obligation to

request, appropriate or make available monies for the purpose of the

contract."

3. In the case of a school district or a board of cooperative

educational services, an energy performance contract shall be an

ordinary contingent expense, and shall in no event be construed as or

deemed a lease or lease-purchase of a building or facility, for purposes

of the education law.

4. Agencies, municipalities, and public authorities are encouraged to

consult with and seek advice and assistance from the New York state

energy research and development authority concerning energy performance

contracts.

5. Notwithstanding any other provision of law, in order to convey an

interest in real property necessary for the construction of facilities

or the operation of equipment provided for in an energy performance

contract, any agency, municipality or public authority may enter into a

lease of such real property to which it holds title or which is under

its administrative jurisdiction as is necessary for such construction or

operation, with an energy performance contractor, for the same length of

time as the term of such energy performance contract, and on such terms

and conditions as may be agreeable to the parties thereto and are not

otherwise inconsistent with law, and notwithstanding that such real

property may remain useful to such agency, municipality or public

authority for the purpose for which such real property was originally

acquired or devoted or for which such real property is being used.

6. In lieu of any other competitive procurement or acquisition process

that may apply pursuant to any other provision of law, an agency,

municipality, or public authority may procure an energy performance

contractor by issuing and advertising a written request for proposals in

accordance with procurement or internal control policies, procedures, or

guidelines that the agency, municipality, or public authority has

adopted pursuant to applicable provisions of the state finance law, the

executive law, the general municipal law, or the public authorities law,

as the case may be.

7. Sections one hundred three and one hundred nine-b of the general

municipal law shall not apply to an energy performance contract for

which a written request for proposals is issued pursuant to subdivision

six of this section.

8. In the case of a school district or a board of cooperative

educational services, an energy performance contract shall be developed

and approved pursuant to the requirements of this section and pursuant

to regulations promulgated by the commissioner of education in

consultation with the New York state energy research and development

authority. Such regulations shall include, but shall not be limited to:

a list of the appropriate type of projects that qualify as energy

performance contracts; an approval process that includes review of the

type and nature of the proposed project, the scope and nature of the

work to be performed, and a detailed breakdown of the energy savings to

be derived each year and for the duration of the energy performance

contract; and a process for ensuring that districts have obtained

financing at the lowest cost possible. Such regulations shall require

that all energy performance contracts which contain maintenance and

monitoring charges as part of the energy performance contract price

state such maintenance and monitoring charges separately in the contract

in a clear and conspicuous manner. Such regulations shall not apply to

energy performance contracts entered into prior to the effective date of

such regulations, nor shall they apply to energy performance contracts

for which a request for proposals was issued prior to such effective

date.

Legislative intent and purpose. The legislature hereby

finds and declares: that adequate supplies of fuel are essential to the

health, welfare and safety of the people of the state of New York; that

any severe disruption in fuel supplied for use within the state would

cause grave hardship and pose a threat to the health and economic

well-being of the people of the state; that the federal government has

enacted into law the Emergency Petroleum Allocation Act of 1973, as

amended by the Energy Policy and Conservation Act of 1975, pursuant to

which the state of New York has established a fuel set-aside program;

and that temporary and concurrent state authority for a fuel set-aside

program should be in place as the federal government terminates,

suspends or fails to implement all or part of the federal program during

the vacation or heating seasons.

Definitions. As used in this article:

1. "Consumer" means any individual, trustee, agency, partnership,

association, corporation, company, municipality, political subdivision

or other legal entity which purchases liquid fossil fuels for ultimate

consumption within New York state.

2. "Distributor" means any individual, trustee, agency, partnership,

association, corporation, company, municipality, political subdivision

or other legal entity which purchases or markets liquid fossil fuels

from a prime supplier or any other source and resells such fuels to

consumers within New York state.

3. "Fuel set-aside" means the amount of liquid fossil fuel which is

made available from the total supply of a prime supplier for utilization

by the state energy office pursuant to this article to resolve hardships

and emergencies due to energy shortages.

4. "Prime supplier" means any individual, trustee, agency,

partnership, association, corporation, company, municipality, political

subdivision or other legal entity which makes the first sale of any

liquid fossil fuel into the state distribution system for consumption

within the state.

5. "Liquid fossil fuel" means heating oils, light and heavy diesel

oil, motor gasoline, methanol, propane, butane, residual fuel oils,

kerosene and aviation fuels.

Fuel set-aside. 1. The commissioner shall promulgate rules

and regulations establishing a fuel set-aside system for liquid fossil

fuels. The fuel set-aside system established pursuant to this article

shall not go into effect in whole or in part except where the federal

government terminates, suspends or fails to implement all or part of the

federal petroleum allocation program. The commissioner shall implement

only that portion of the state set-aside program necessary to prevent

and alleviate any energy hardships or shortages. Such rules and

regulations shall direct that prime suppliers set aside an amount of

liquid fossil fuel, as determined by the commissioner, which amount

shall be a percentage of the monthly volume of liquid fossil fuels which

prime suppliers intend to sell into the state distribution system for

consumption within the state.

2. In addition to meeting the purposes set forth in section 10-101 of

this article and the requirements of subdivision one of this section,

the rules and regulations establishing the fuel set-aside system shall

provide that:

(a) A prime supplier inform the office each month of the monthly

volume of each product subject to fuel set-aside which is intended to be

sold into the state distribution system for consumption within the

state, provided the commissioner determines that such information is

needed.

(b) The commissioner shall notify each prime supplier of the monthly

fuel set-aside percentage, not exceeding three percent, applicable to

each product subject to fuel set-aside. The commissioner may review and

revise such percentages from time to time as he deems appropriate.

(c) The amount of fuel to be set aside for a particular month cannot

be accumulated or deferred; it shall be made available from stocks of

prime suppliers, whether directly or through distributors.

(d) Procedures shall be established for making an application for an

allocation from the fuel set-aside reserves and for approval or

disapproval of such application by the commissioner.

Violation; penalties. 1. Any person who violates any

provision of this article or any rule, regulation or order issued

pursuant thereto shall be liable to the people of the state for a civil

penalty in an amount of not less than two thousand five hundred dollars

nor more than ten thousand dollars for every such violation.

2. The penalty provided for in subdivision one of this section shall

be recovered in an action or special proceeding brought by the attorney

general at the request and in the name of the commissioner in any court

of competent jurisdiction.

3. Alternatively, or in addition to the action or proceeding to

recover the civil penalty provided by subdivision one of this section,

the attorney general, upon the request of the commissioner, may

institute an action or proceeding to enjoin any violation of or to

enforce any provision of this article or any rule, regulation or order

issued pursuant thereto.

4. Any action or proceeding commenced to recover a penalty may be

settled or discontinued by the attorney general with the consent of the

commissioner.

Purpose. In furtherance of the policy set forth in

subdivision two of section 3-101 of this chapter, the legislature hereby

directs that a state energy conservation construction code be adopted to

protect the health, safety and security of the people of the state and

to assure a continuing supply of energy for future generations and that

such code mandate that economically reasonable energy conservation

techniques be used in the design and construction of all public and

private buildings in the state.

Definitions. For the purposes of this article, the following

words and phrases shall have the following meanings unless a different

meaning is plainly required by the context:

1. "Addition." An extension or increase in the conditioned space floor

area or height of any building.

2. "Alteration." Any renovation, reconstruction or renewal of or to an

existing building, or portion thereof, other than an addition. The word

"alteration" shall include any change in equipment that involves an

extension, addition or change to the arrangement, type or purpose of the

original installation.

3. "ASHRAE 90.1." ANSI/ASHRAE/IES Standard 90.1, entitled "Energy

Standard for Buildings Except Low-Rise Residential Buildings," published

by American Society of Heating, Refrigerating and Air-Conditioning

Engineers, Inc.

4. "Building." Any structure used or intended for supporting or

sheltering any use or occupancy or for affording shelter to persons,

animals or property, including any equipment therein.

5. "Code." The state energy conservation construction code provided

for in this article, or any portion thereof, any modification of or

amendments thereto.

6. "Commercial building." Any building that is not a residential

building.

7. "Conditioned space." An area or room which is within a building and

which is (a) being heated or cooled, (b) contains uninsulated ducts, or

(c) has a fixed opening directly into an adjacent conditioned space.

8. "Equipment." Plumbing, heating, electrical, lighting, insulating,

ventilating, air conditioning, and refrigerating equipment, elevators,

escalators, and other mechanical additions or installations but does not

include any items constituting an industrial or commercial process.

9. "Historic building." Any building that is one or more of the

following: (a) listed, or certified as eligible for listing, on the

national register of historic places or on the state register of

historic places, (b) designated as historic under an applicable state or

local law, or (c) certified as a contributing resource within a national

register-listed, state register-listed, or locally designated historic

district.

10. "IECC" or "International Energy Conservation Code." The

International Energy Conservation Code, published by International Code

Council, Inc.

11. "Life-cycle cost." An estimate of the total cost of acquisition,

operation, maintenance, and construction of any energy system within or

related to a building over the design life of the building. "Life-cycle

cost" includes, but is not limited to, the cost of fuel, materials,

machinery, ancillary devices, labor, service, replacement, and repairs.

12. "Local government." Any village, town (outside the area of any

incorporated village) or city.

13. "Municipality." Any county, city, town, village, school district

or district corporation.

14. "Owner." The owner or owners of the freehold of a premises or any

lesser estate therein, a mortgagee or vendee in possession, a contract

vendee, assignee of rents, receiver, executor, trustee, lessee, or any

other person, firm or corporation in control of a building.

15. "Residential building." Any building which is designed or is to be

used primarily as a dwelling or household as defined by the state fire

prevention and building code council, including any factory manufactured

home as defined in subdivision eight of section three hundred

seventy-two of the executive law and any mobile home as defined in

subdivision thirteen of section three hundred seventy-two of the

executive law.

16. "Uniform code." The New York state uniform fire prevention and

building code adopted, and as may be amended, pursuant to article

eighteen of the executive law.

Applications. 1. (a) The state energy conservation

construction code adopted by the state fire prevention and building code

council and consisting of a building energy code for residential

buildings throughout the state and a building energy code for commercial

buildings throughout the state is continued until amended or a new code

is adopted and effective.

(b) The code shall apply to the construction of any new building. The

code shall also apply to an addition to, and alteration of, any existing

building or building system; provided, however, that the code shall not

be interpreted to require any unaltered portion of the existing building

or building system to comply with the code. The code shall be subject to

such other exceptions as may be adopted by the state fire prevention and

building code council provided that such exceptions shall not prevent

the attainment of the compliance goals set forth in section 410(2)(c) of

the American Recovery and Reinvestment Act of 2009.

2. (a) The state fire prevention and building code council is

authorized, from time to time as it deems appropriate and consistent

with the purposes of this article, to review and amend the code, or

adopt a new code, through rules and regulations provided that the code

remains cost effective with respect to building construction in the

state. In determining whether the code remains cost effective, the code

council shall consider (i) whether the life-cycle costs for a building

will be recovered through savings in energy costs over the design life

of the building under a life-cycle cost analysis performed under

methodology as established by the New York state energy research and

development authority in regulations which may be updated from time to

time, and (ii) secondary or societal effects, such as reductions in

greenhouse gas emissions, as defined in regulations. Before publication

of a notice of proposed rule making establishing the methodology or

defining secondary or societal effects, the president of the authority

shall conduct public meetings to provide meaningful opportunities for

public comment from all segments of the population that would be

impacted by the regulations, including persons living in disadvantaged

communities as identified by the climate justice working group

established under section 75-0111 of the environmental conservation law.

For residential buildings, the code shall meet or exceed the then most

recently published International Energy Conservation Code, or achieve

equivalent or greater energy savings; and for commercial buildings, the

code shall meet or exceed the then most recently published ASHRAE 90.1,

or achieve equivalent or greater energy savings.

(b) When adopting the first amended version of the code next following

the effective date of the chapter of the laws of two thousand twenty-two

that added this paragraph and any subsequent codes, the state fire

prevention and building code council shall use its best efforts to adopt

provisions for residential buildings that achieve energy savings greater

than energy savings achieved by the then most recently published

International Energy Conservation Code and to adopt provisions for

commercial buildings that achieve energy savings greater than energy

savings achieved by the then most recently published ASHRAE 90.1, both

at levels recommended by the New York state energy research and

development authority, provided that the state fire prevention and

building code council determines that such advanced energy savings can

be achieved while still meeting the cost effectiveness considerations

contemplated by this subdivision.

* 3. Notwithstanding any other provision of law, the state fire

prevention and building code council in accordance with the mandate

under this article shall have exclusive authority among state agencies

to promulgate a construction code incorporating energy conservation

features and clean energy features applicable to the construction of any

building, including but not limited to greenhouse gas reduction. Any

other code, rule or regulation heretofore promulgated or enacted by any

other state agency, incorporating specific energy conservation and clean

energy requirements applicable to the construction of any building,

shall be superseded by the code promulgated pursuant to this section.

Notwithstanding the foregoing, nothing in this section shall be deemed

to expand the powers of the council to include matters that are

exclusively within the statutory jurisdiction of the public service

commission, the department of environmental conservation, or another

state entity.

* NB Effective until December 31, 2040

* 3. Notwithstanding any other provision of law, the state fire

prevention and building code council in accordance with the mandate

under this article shall have exclusive authority among state agencies

to promulgate a construction code incorporating energy conservation

features and clean energy features applicable to the construction of any

building, including but not limited to greenhouse gas reduction. Any

other code, rule or regulation heretofore promulgated or enacted by any

other state agency, incorporating specific energy conservation and clean

energy requirements applicable to the construction of any building,

shall be superseded by the code promulgated pursuant to this section.

Notwithstanding the foregoing, nothing in this section shall be deemed

to expand the powers of the council to include matters that are

exclusively within the statutory jurisdiction of the public service

commission, the department of environmental conservation, the office of

renewable energy siting or another state entity.

* NB Effective December 31, 2040

4. The secretary of state is authorized to issue written

interpretations of the code upon written request of a permit applicant

or the official responsible for the administration and enforcement of

the provisions of the code. Subsequent enforcement of the code shall be

consistent with such written interpretations.

State energy conservation construction code. In addition to

meeting the purposes set forth in section 11-101 of this article, the

code shall be designed to satisfy the following specific criteria:

1. The code's standards and requirements, so far as may be

practicable, shall be formulated in terms of performance objectives.

2. To the fullest extent feasible, use of modern technical methods,

devices and improvements which tend to minimize consumption of energy

and utilize to the greatest extent practical solar and other renewable

sources of energy without affecting reasonable requirements for the

health, safety and security of the occupants or users of buildings shall

be permitted.

3. As far as may be practicable, the improvement of energy

conservation construction practices, methods, equipment, materials and

techniques shall be encouraged.

4. The code shall provide reasonable uniform standards and

requirements for construction and construction materials for the

improvement of energy conservation construction practices.

5. The state fire prevention and building code council, in

consultation with the commissioner of the department of parks,

recreation and historic preservation, is authorized to adopt exemptions

to such uniform standards and requirements for historic buildings as

defined in section 11-102 of this article, to the extent that the

uniform standards and requirements would threaten, degrade, or destroy

the historic form, fabric, or function of such historic buildings.

6. (a) To the fullest extent feasible, the standards for construction

of buildings in the code shall be designed to help achieve the state's

clean energy and climate agenda, including but not limited to greenhouse

gas reduction, set forth within chapter one hundred six of the laws of

two thousand nineteen, also known as the New York state climate

leadership and community protection act, and as further identified by

the New York state climate action council established pursuant to

section 75-0103 of the environmental conservation law.

(b) In addition to the foregoing, to support the goal of zero on-site

greenhouse gas emissions and help achieve the state's clean energy and

climate agenda, including but not limited to greenhouse gas reduction

requirements set forth within chapter one hundred six of the laws of two

thousand nineteen, also known as the New York state climate leadership

and community protection act, the code shall prohibit the installation

of fossil-fuel equipment and building systems, in any new building not

more than seven stories in height, except for a new commercial or

industrial building greater than one hundred thousand square feet in

conditioned floor area, on or after December thirty-first, two thousand

twenty-five, and the code shall prohibit the installation of fossil-fuel

equipment and building systems, in all new buildings after December

thirty-first, two thousand twenty-eight.

7. (a) The provisions set forth in paragraph (b) of subdivision six of

this section shall not be construed as applying to buildings existing

prior to the effective date of the applicable prohibition, including to:

(i) the repair, alteration, addition, relocation, or change of

occupancy or use of such buildings; and

(ii) the installation or continued use and maintenance of fossil-fuel

equipment and building systems, including as related to cooking

equipment, in any such buildings.

(b) In addition, in effectuating the provisions set forth in paragraph

(b) of subdivision six of this section the code shall include exemptions

for the purposes of allowing the installation and use of fossil-fuel

equipment and building systems where such are installed and used:

(i) for generation of emergency back-up power and standby power

systems;

(ii) in a manufactured home as defined in subdivision seven of section

six hundred one of the executive law; or

(iii) in a building or part of a building that is used as a

manufacturing facility, commercial food establishment, laboratory, car

wash, laundromat, hospital, other medical facility, critical

infrastructure, including but not limited to emergency management

facilities, wastewater treatment facilities, and water treatment and

pumping facilities, agricultural building, fuel cell system, or

crematorium, as such terms are defined by the code council.

(c) Where the code includes an allowed exemption pursuant to

subparagraph (i) or (iii) of paragraph (b) of this subdivision, other

than agricultural buildings as defined by the council, such exemption

shall include provisions that, to the fullest extent feasible, limit the

use of fossil-fuel equipment and building systems to the system and area

of the building for which a prohibition on fossil-fuel equipment and

building systems is infeasible; require the area or service within a new

building where fossil-fuel equipment and building systems are installed

be electrification ready, except with respect to servicing manufacturing

or industrial processes; and minimize emissions from the fossil-fuel

equipment and building systems that are allowed to be used, provided

that the provisions set forth in this paragraph do not adversely affect

health, safety, security, or fire protection. Financial considerations

shall not be sufficient basis to determine physical or technical

infeasibility.

(d) Exemptions included in the code pursuant to this subdivision shall

be periodically reviewed by the state fire prevention and building code

council to assure that they continue to effectuate the purposes of

subdivision six of this section to the fullest extent feasible.

(e) The code shall allow for exemption of a new building construction

project that requires an application for new or expanded electric

service, pursuant to subdivision one of section thirty-one of the public

service law and/or section twelve of the transportation corporations

law, when electric service cannot be reasonably provided by the grid as

operated by the local electric corporation or municipality pursuant to

subdivision one of section sixty-five of the public service law;

provided, however, that the public service commission shall determine

reasonableness for purposes of this exemption. For the purposes of this

paragraph, "grid" shall have the same meaning as electric plant, as

defined in subdivision twelve of section two of the public service law.

8. For the purposes of this section:

(a) "Fossil-fuel equipment and building systems" shall mean (i)

equipment, as such term is defined in section 11-102 of this article,

that uses fossil-fuel for combustion; or (ii) systems, other than items

supporting an industrial or commercial process as referred to in the

definition of equipment in section 11-102 of the energy law, associated

with a building that will be used for or to support the supply,

distribution, or delivery of fossil-fuel for any purpose, other than for

use by motor vehicles.

(b) "Electrification ready" means the new building or portion thereof

where fossil-fuel equipment and building systems are allowed to be used

which contains electrical systems and designs that provide sufficient

capacity for a future replacement of such fossil-fuel equipment and

building systems with electric-powered equipment, including but not

limited to sufficient space, drainage, electrical conductors or

raceways, bus bar capacity, and overcurrent protective devices for such

electric-powered equipment.

9. Standards to require new buildings that include new dedicated

off-street parking involving a garage, driveway, parking lot or other

off-street parking to have electric vehicle ready infrastructure and

electric vehicle charging stations that comply with the requirements set

forth in this subdivision. Such standards shall not be included in the

life cycle analysis performed pursuant to subdivision two of section

11-103 of this article.

(a) For the purposes of this subdivision:

(i) "electric vehicle ready infrastructure" shall mean all electrical

components, terminating in a receptacle or outlet, as necessary to

enable electric vehicle charging and support electric vehicle charging

stations; and

(ii) "electric vehicle charging station" shall mean all the equipment

necessary to deliver electricity from a source outside an electric

vehicle into one or more electric vehicles, as defined by the code

council.

(b) When adopting a new code after December thirty-first, two thousand

twenty-six, such code shall include provisions that require any new

building where new off-street parking is associated with such new

building to have electric vehicle ready infrastructure and electric

vehicle charging stations in accordance with paragraph (d) of this

subdivision.

(c) The provisions set forth in paragraph (b) of this subdivision

shall not be construed as applying to buildings existing prior to the

adoption of a new code after December thirty-first, two thousand

twenty-six, including to the repair, alteration, addition, relocation,

or change of occupancy or use of such buildings.

(d) Code provisions promulgated by the state fire prevention and

building code council pursuant to this subdivision:

(i) may, for detached one- and two-family dwellings, provide for

electric vehicle ready infrastructure;

(ii) shall, for occupancies other than detached one- and two-family

dwellings, require a minimum number of parking spaces with electric

vehicle ready infrastructure and a minimum number of parking spaces with

electric vehicle charging stations, with minimum charging capacity

standards established by the council. When establishing minimum

standards, the council shall consider:

A. the goals of section 19-0306-b of the environmental conservation

law;

B. the differing needs of various building types;

C. maximizing equity of access to electric vehicle charging across

income levels, housing types, geographic locations, and employment

types;

D. for commercial buildings, the electric vehicle charging access

needs of both employees and customers; and

E. for multi-family residential buildings, standards that allow

electric vehicle charging stations be wired directly to a meter or

electric vehicle submeter serving a residential unit;

(iii) include requirements for clear and prominent signage denoting

the availability and location of electric vehicle ready infrastructure

and electric vehicle charging stations; and

(iv) provide exemptions to such code provisions for:

A. projects with local, state, or federal approval subject to an

actual or anticipated agreement with a local, state, or federal

governmental entity for the purposes of providing affordable housing in

a given locality or region; and

B. additional exemptions due to technical infeasibility, geographic

location, or building type, as the code council deems appropriate.

Limitation of application. Notwithstanding the provisions of

subdivision one of section 11-103 of this article, the state fire

prevention and building code council, by regulation, may limit the

application of any portion of the code so as to include or exclude

classes or types of buildings, according to the use thereof or the cost

effectiveness of the code with respect to any such class or type of

building, or according to any other distinction as may make

differentiation or separate classification or regulation necessary,

proper or desirable, provided however, that such limitation: (1) is

consistent with the purposes of this article and the criteria set forth

in section 11-104 of this article, (2) does not render the code

inconsistent with the energy savings requirements of subdivision two of

section 11-103 of this article, and (3) whether considered individually

or collectively with other limitations, will not prevent the attainment

of the compliance goals set forth in section 410(2)(c) of the American

Recovery and Reinvestment Act of 2009.

Variances and modifications. 1. Any standard or requirement

of the code may be varied or modified, in whole or part, with regard to

specific construction upon application made by or on behalf of an owner,

where strict compliance with such standard or requirement would entail

practical difficulty or cause any unnecessary hardship in relation to

such construction, provided, however, that any such variance or

modification shall provide for alternative energy conservation standards

or requirements to achieve to the extent practicable the purposes of

this article.

2. An application for a variance or modification of any standard or

requirement of the code shall be made to the secretary of state.

Administration and enforcement. Except as otherwise provided

in regulations adopted pursuant to section three hundred eighty-one of

the executive law, the administration and enforcement of the provisions

of the code with respect to any building shall be the responsibility of

that governmental entity which is responsible for the administration and

enforcement of the provisions of the uniform code or other applicable

fire prevention and building construction code with respect to such

building. The code shall be administered and enforced in the manner

prescribed by applicable local law or ordinance consistent with the

standards and procedures adopted pursuant to section three hundred

eighty-one of the executive law.

Penalties. 1. Any person having been served with an order to

remedy a violation of the code pursuant to the provisions of any local

law or ordinance, or the procedures adopted pursuant to section three

hundred eighty-one of the executive law, who shall fail to comply with

such order within thirty days after such service or within the time

fixed by such order for compliance, whichever is greater, and any owner,

builder, architect, engineer, contractor or subcontractor taking part or

assisting in the construction or use of any building who shall knowingly

violate any applicable provisions of the code or any lawful order of the

governmental entity responsible for the administration and enforcement

thereof shall be punishable by a fine of not more than one thousand

dollars or by imprisonment of not more than thirty days in jail, or

both.

2. Except as provided otherwise by law, any such violation shall not

be a crime and the penalty or punishment imposed therefor shall not be

deemed for any purpose a penal or criminal penalty or punishment, and

shall not impose any disability upon or affect or impair the credibility

as a witness, or otherwise, of any person convicted thereof.

Municipal regulations. 1. Nothing in this article shall be

construed as abrogating or impairing the power of any municipality or

the secretary of state to enforce the provisions of any local building

regulations or the state uniform fire prevention and building code,

provided that such local building regulations are not inconsistent with

the code. Nor shall anything in this article be construed as abrogating

or impairing the power of any municipality to promulgate a local energy

conservation construction code more stringent than the code, including

but not limited to requirements for mandatory energy efficiency testing

and ratings.

2. Any municipality which adopts a local energy conservation

construction code in accordance with this section shall file a copy of

such code and any amendments or revisions thereof with the state fire

prevention and building code council within thirty days after

promulgation or adoption of such local code or any amendments or

revisions thereof. If the municipality files such copy within such

thirty day time period, the municipality may enforce such local code,

amendment or revision until and unless the state fire prevention and

building code council shall determine that such local code, amendment or

revision is not more restrictive than the code. If the municipality

fails to file such copy within such thirty day time period, the

municipality may not enforce such local code, amendment or revision

until and unless the state fire prevention and building code council

shall determine that such local code, amendment or revision is more

restrictive than the code.

Reporting; cooperation of other agencies. 1. The secretary

of state shall report yearly to the legislature and the governor as to

the operation and effectiveness of the state energy conservation

construction code.

2. Agencies and municipalities of the state shall provide the

secretary of state with such cooperation and assistance as he or she may

deem necessary to carry out the purposes of this article.

Title. This act shall be known and may be cited as the

"Solar Energy Products Warranty Act."

Administration. Notwithstanding any other provision of

law, the New York state energy research and development authority shall

be deemed to have the responsibility and authority to implement the

provisions of this article.

Purpose. The legislature hereby finds and declares that the

use of renewable energy technologies, such as solar energy, within the

state should be encouraged to the maximum extent possible; that

effective, well-designed, carefully manufactured and properly serviced

solar thermal systems are essential for the development of a viable

solar industry; that false claims, fraudulent sales practices, shoddy

workmanship, equipment failures and poor servicing of products would

inhibit the growth of the solar industry; that adequate warranty

protections should be made available to consumers in order to prevent

such deceptions; that certain warranty protections are presently made

available to consumers of products normally used for personal, family or

household purposes pursuant to the Federal Magnuson-Moss Warranty Act;

and that warranty protections should be made available to purchasers of

all solar energy products in this state, regardless of use.

Definitions. 1. "Building" means any combination of

materials, whether portable or fixed, having a roof to form a structure

which is heated or cooled in the normal course, affording shelter for

persons, animals or property, including any equipment therein or

attached thereto.

2. "Component" means any device or element of a solar thermal system

which can generally be purchased separately from the entire system but

is essential to the normal operation of that system, including,

collectors, heat exchangers, tanks, pumps, controllers, temperature

sensors, meters and fans. Components shall not include standard pipes,

ducts, switchboxes or hardware.

3. "Customer" means any person who purchases, or contracts with an

installer for the installation of, a solar thermal system.

4. "Installer" means any person who for a fee offers to install or

installs a solar thermal system.

5. "Solar thermal system" means an arrangement or combination of

components designed to provide heating, cooling or hot water by the

collection or storage of solar energy.

6. "At retail" means the first transfer of goods, for lawful

consideration, from any person who is regularly in the business of

buying and selling new solar thermal systems for profit to any person

who is not regularly in the business of buying and selling new solar

thermal systems for profit.

7. "Seller" means any person who offers for sale or sells, at retail,

a solar thermal system.

8. "System manufacturer" means any person who manufactures or

assembles or designs and packages a solar thermal system.

Contracts and sales practices. 1. Every agreement for the

sale or installation of a solar thermal system shall be in writing and

be subscribed by the seller or installer, or his lawful agent, and by

the customer or his lawful agent.

2. Every such agreement shall contain or have annexed thereto:

(a) The name and address of the system manufacturer of the solar

thermal system together with the system's name and model number;

(b) Operation, maintenance and installation instructions, except that

installation instructions need not be provided in an installation

agreement;

(c) Copies of all express warranties provided to the customer; and

(d) Other such information as may be required by the commissioner.

3. Every such agreement shall display the following statement on the

face of the agreement in a clear and conspicuous manner: "No specific

thermal performance for this solar system is warranted unless stated

herein".

4. No seller shall offer for sale a solar thermal system unless such

seller makes available to a prospective customer the information

specified in subdivisions two and three of this section.

Warranties and service agreements. 1. All express warranties

and service agreements pertaining to any solar thermal system or

component thereof which is sold in the state shall be in writing and

shall be in compliance with rules and regulations to be promulgated by

the commissioner. Such rules and regulations shall contain standards no

less stringent than those contained in the Federal Magnuson-Moss

Warranty Act (15 U.S.C. §§ 2301 et seq.) and the rules and regulations

issued pursuant thereto.

2. All customers shall be provided with express warranties which shall

include at a minimum the following:

(a) A full one year warranty by the installer against malfunction or

failure of a solar thermal system due to improper installation or a

defect in standard pipe, ducts, switchboxes and hardware utilized in

installation;

(b) A full one year warranty by the system manufacturer and the seller

against a defect in materials, manufacture or design of a solar thermal

system; and

(c) A full three year warranty by the system manufacturer and the

seller against a defect in materials, manufacture or design of a solar

collector, tank or heat exchanger.

3. No person shall offer a service agreement for a solar thermal

system unless such person shall have developed a service capability for

such system.

Rules and regulations. Not later than six months from the

effective date of this act, the commissioner shall promulgate rules and

regulations as necessary for the effective implementation of this

article.

Violations. 1. Whenever the attorney general has reason to

believe that any violation of this article is a repeated or persistent

practice, he may bring an action to enjoin such practice and to obtain

restitution for any aggrieved party or parties. In such action

preliminary relief may be granted under article sixty-three of the civil

practice law and rules. Before any violation of this article is sought

to be enjoined, the attorney general shall be required to give the

person against whom such proceeding is contemplated notice by certified

mail and an opportunity to show in writing within five business days

after receipt of notice why proceedings should not be instituted against

him, unless the attorney general shall find, in any case in which he

seeks preliminary relief, that to give such notice and opportunity is

not in the public interest.

2. Any owner of a solar thermal system injured by a violation of any

provision of this article issued pursuant thereto may bring an action in

his own name to enjoin such violation and to recover his actual damages.

In such action, there may be awarded reasonable attorney's fees and

costs to the plaintiff. Nothing in this section shall be construed to

abridge or limit any other right or remedy an owner may have at law or

in equity, statutory or otherwise. Provided, however, that such

individual action shall be precluded if, prior to its commencement, the

attorney general has commenced an action for an injunction and

restitution pursuant to the provisions of subdivision one of this

section.

Prohibition of waiver. Any waiver by the owner of a solar

thermal system of the provisions of this article shall be deemed

contrary to public policy and shall be unenforceable and void.

Definitions. As used in this article:

1. "Active mode" means the condition in which the input of a power

supply or consumer audio and video equipment is connected to the line

voltage AC and the output is connected to a DC or an AC load, fulfilling

one or more of its main functions and drawing a fraction of the power

supply's nameplate power output greater than zero.

1-a. "Product" means any appliance or equipment, other than a motor

vehicle, which in operation consumes or is designed to consume energy or

to result in the consumption of energy, including any water-related

appliance, equipment or fixture that is designed to consume or result in

the consumption of energy in its operation or use.

2. "Authority" means the New York state energy research and

development authority.

3. "Automatic commercial ice-cube maker" means a factory-made

assembly, not necessarily shipped in one package, consisting of a

condensing unit and ice-making section operating as an integrated unit,

with means for making and harvesting cube-type ice. It may also include

means for storing or dispensing cube-type ice, or both.

4. "Ballast" means a device used with an electric discharge lamp to

obtain necessary circuit conditions (voltage, current, and waveform) for

starting and operating the lamp.

4-a. The following definitions refer to water coolers:

(a) "Bottle-type" means a water dispenser that uses a bottle or

reservoir as the source of potable water.

(b) "Water cooler" means a freestanding device that consumes energy to

cool and/or heat potable water.

(c) "Cold only units" means units that dispense cold water only.

(d) "Hot and cold units" means units that dispense both hot and cold

water. Some units may also offer room-temperature water.

(e) "Cook and cold units" means units that dispense both cold and

room-temperature water.

(f) "Point of use (POU)" means the water cooler is connected to a

pressurized water source.

(g) "Conversion-type" means a unit that ships as either bottle-type or

POU and includes a conversion kit intended to convert the water cooler

from a bottle-type unit to a POU unit or to convert a POU unit to a

bottle-type unit.

(h) "Storage-type" means thermally conditioned water is stored in a

tank in the water cooler and is available instantaneously.

(i) "On demand" means the water cooler heats water as it is requested,

which typically takes a few minutes to deliver.

5. "Ceiling fan" means a non-portable device that is suspended from a

ceiling for circulating air via the rotation of fan blades.

6. "Ceiling fan light kit" means the equipment used to provide light

from a ceiling fan. This equipment may be part of the unit such that the

ceiling fan light kit is hardwired to the ceiling fan, or attachable

such that the ceiling fan light kit is not, at the time of sale,

physically attached to the fan. Attachable ceiling fan light kits may be

included inside the ceiling fan package at the time of sale, or sold

separately for subsequent attachment to the fan.

6-a. "Commercial hot food holding cabinet" means a heated, fully

enclosed compartment, with one or more solid or partial glass doors,

that is designed to maintain the temperature of hot food that has been

cooked in a separate appliance. "Commercial hot food holding cabinet"

does not include heated glass merchandising cabinets, drawer warmers or

cook-and-hold appliances.

7. "Very large commercial package air conditioning and heating

equipment" means air-cooled, water-cooled, evaporatively-cooled, or

water source (not including ground water source) electrically operated,

unitary central air conditioners and central air conditioning heat pumps

for commercial application rated at or above two hundred forty thousand

BTU per hour and below seven hundred sixty thousand BTU per hour

(cooling capacity).

8. "Commercial pre-rinse spray valve" means a hand-held device

designed to spray water on dishes, flatware and other food service items

for the purpose of removing food residue prior to the placement of such

items in a commercial automatic dishwasher.

9. (a) "Commercial refrigerator, freezer, and refrigerator-freezer"

means refrigeration equipment that:

(i) is not a consumer product as defined by 42 USC 6291;

(ii) is not designed and marketed exclusively for medical, scientific,

or research purposes;

(iii) operates at a chilled, frozen, combination chilled/frozen, or

variable temperature;

(iv) displays or stores merchandise and other perishable materials

either horizontally, semivertically, or vertically;

(v) has transparent or solid doors, sliding or hinged doors, a

combination of hinged, sliding, transparent or solid doors;

(vi) is designed for pull-down temperature applications or holding

temperature applications; and

(vii) is connected to a self-contained condensing unit.

(b) The term "pull-down temperature application" means a commercial

refrigerator with doors that, when fully loaded with twelve ounce

beverage cans at ninety degrees Fahrenheit, can cool these beverages to

an average stable temperature of thirty-eight degrees Fahrenheit in

twelve hours or less.

(c) The term "holding temperature application" means a use of

commercial refrigeration equipment other than a pull-down temperature

application, excluding a blast chiller or freezer.

(d) The term "self-contained condensing unit" means a factory-made

assembly of refrigerating components designed to compress and liquefy a

specific refrigerant that is an integral part of the refrigerated

equipment and consists of one or more refrigerant compressors,

refrigerant condensers, condenser fans and motors, and factory supplied

accessories.

(e) The term "integrated average temperature" means the average

temperature of all test package measurements taken during the test.

(f) The term 'AV' means the adjusted volume (cubic feet) defined as

1.63 X frozen temperature compartment volume (cubic feet) + chilled

temperature compartment volume (cubic feet) with compartment volumes

measured in accordance with the association of home appliance

manufacturers standard HRF1-1979.

(g) The term 'V' means the chilled or frozen compartment volume (cubic

feet) as defined in the association of home appliance manufacturers

standard HRF1-1979.

10. "Compact audio product", also known as a mini, mid, micro, or

shelf audio system, means an integrated audio system encased in a single

housing that includes an amplifier and radio tuner, attached or

separable speakers, and can reproduce audio from one or more of the

following media: magnetic tape, CD, DVD, or flash memory. "Compact audio

product" does not include products that can be independently powered by

internal batteries or that have a powered external satellite antenna, or

that can provide a video output signal.

11. "Consumer audio and video product" means a mains-connected product

that amplifies audio, offers optical, offers disc player functionality,

and/or receives and plays audio and/or video content. Examples of

consumer audio and video products include compact audio products,

digital versatile disc players, digital versatile disc recorders,

digital television adapters and streaming media players. Televisions are

specifically excluded from consumer audio and video products.

12. "Digital television adapter" means a commercially available

electronic product for which the sole purpose is the conversion of

digital video terrestrial broadcast signals to analog NTSC video signals

for use by a TV or VCR.

13. "Digital versatile disk (DVD)" means a laser-encoded plastic

medium capable of storing a large amount of digital audio, video, and

computer data.

14. "Digital versatile disc (DVD) player" means a commercially

available electronic product encased in a single housing that includes

an integral power supply and for which the sole purpose is the decoding

of digitized video signals on a DVD.

15. "Digital versatile disc (DVD) recorder" means a commercially

available electronic product encased in a single housing that includes

an integral power supply and for which the sole purpose is the

production or recording of digitized audio and video signals on a DVD.

"DVD recorder" does not include models that have an EPG function.

16. "Digital video recorder (DVR)" means a device which can record

video signals onto a hard disk drive or other device that can store the

images digitally. "DVR" does not include models that have an EPG

function.

17. "Electronic programming guide (EPG)" means an application that

provides an interactive, onscreen menu of TV listings, and that

downloads program information from the vertical blanking interval of a

regular TV signal.

18. "Efficiency standard" means a standard that defines performance

metrics and/or defines prescriptive design requirements associated with

the regulated category of product in order to reduce energy consumption,

reduce water consumption, and reduce greenhouse gas emissions associated

with energy consumption and/or increase demand flexibility.

18-a. "Greenhouse gas" means "greenhouse gas" as defined in

subdivision seven of section 75-0101 of the environmental conservation

law.

18-b. "Demand flexibility" means the capability to schedule, shift, or

curtail the electrical demand of a load-serving entity's customer

through direct action by the customer or through action by a third

party, the load-serving entity, or a grid balancing authority, with the

customer's consent.

19. "High-intensity discharge lamp" means a lamp in which light is

produced by the passage of an electric current through a vapor or gas,

and in which the light-producing arc is stabilized by bulb wall

temperature and the arc tube has a bulb wall loading in excess of three

watts per square centimeter.

20. "Illuminated exit sign" means an internally-illuminated sign that

is designed to be permanently fixed in place and used to identify an

exit; a light source illuminates the sign or letters from within, and

the background of the exit sign is not transparent.

21. "Incandescent reflector lamp" means a lamp which is not colored or

designed for rough or vibration service applications, that has an inner

reflective coating on the outer bulb to direct the light, an E26 medium

screw base, and a rated voltage or voltage range that lies at least

partially within one hundred fifteen to one hundred thirty volts, and

that falls into one of the following categories:

(a) a bulged reflector or elliptical reflector bulb shape and which

has a diameter which equals or exceeds 2.25 inches; or

(b) a reflector, parabolic aluminized reflector, or similar bulb shape

and which has a diameter of 2.25 to 2.75 inches.

21-a. "Lamp" means an electrical appliance that includes a glass

envelope and produces optical radiation for the purpose of visual

illumination, designed to be installed into a light fixture by means of

an integral lamp-holder or socket.

21-b. "Light fixture" means a product designed to provide light that

includes at least one lamp-holder or socket and parts to distribute the

light, to position or protect one or more lamps and to connect one or

more lamps to a power supply.

21-c. "Duv" means a metric that quantifies the distance between the

chromaticity of a given light source and a blackbody radiator of equal

correlated color temperature (CCT) on a CIE 1976 (u, v) chromatic

diagram demonstrating how different two light sources of the same color

temperature appear.

21-d. "Light Emitting Diode (LED) lamp" means a lamp capable of

producing light with Duv between -0.012 and 0.012, and that has an E12,

E17, E26, or GU-24 base, including LED lamps that are designed for

retrofit within existing recessed can housings that contain one of the

preceding bases. LED lamp does not include a lamp with a brightness of

more than two thousand six hundred lumens or a lamp that cannot produce

light with a correlated color temperature between two thousand two

hundred Kelvin and seven thousand Kelvin.

22. "Metal halide lamp" means a high intensity discharge lamp in which

the major portion of the light is produced by radiation of metal halides

and their products of dissociation, possibly in combination with

metallic vapors.

23. "Metal halide lamp fixture" means a light fixture designed to be

operated with a metal halide lamp and a ballast for a metal halide lamp.

24. "No load mode" means the condition in which the input of a power

supply is connected to an AC source consistent with the power supply's

nameplate AC voltage, and the output is not connected to a product or

any other load.

25. "Pedestrian traffic signal module" means an electrically operated

traffic control device composed of one or more indications which is

erected for the exclusive purpose of directing pedestrian traffic at

signalized locations. It consists of a light source, lens, and all parts

necessary for operation.

26. "Person" means any individual, trustee, agency, partnership,

association, corporation, company, municipality, political subdivision,

or other legal entity.

27. "Point of deployment (POD)" means a card which enables a TV to

have secure conditional access to a cable or satellite system.

27-a. "Portable electric spa" means a factory-built electric spa or

hot tub, which may or may not include any combination of integral

controls, water heating or water circulating equipment.

27-b. "Portable light fixture" means a light fixture which has a

flexible cord and an attachment plug for connection to a nominal one

hundred twenty-volt, fifteen- or twenty-ampere branch circuit; which can

be relocated by the user without any rewiring; which is typically

controlled with a switch located on the light fixture itself or on the

power cord; and which are intended for use in accordance with the

national electrical code, ANSI/NFPA 70-2002. "Portable light fixture"

does not include direct plug-in nightlights; sun and heat lamps;

aquarium lamps; medical and dental lights; portable electric hand lamps;

signs and commercial advertising displays; photographic lamps;

germicidal lamps; illuminated vanity mirrors; lava lamps not providing

general or task illumination; industrial work lights rated for use with

a lamp providing greater than seven thousand lumens; portable lamp

fixtures for marine use or for use in hazardous locations as defined in

the national electrical code, ANSI/NFPA 70; or decorative lighting

outfits or electric candles and candelabras without lampshades that are

covered by the standard for safety of seasonal and holiday decorative

products, UL 588.

28. "Power supply" means a single voltage external AC to DC or AC to

AC power supply included with other retail products and single voltage

external AC to DC or AC to AC power supply sold separately.

29. "President" means the president of the New York state energy

research and development authority.

29-a. "Replacement dedicated-purpose pool pump motor" means an

electric motor that:

(a) is single-phase or polyphase;

(b) has a dedicated purpose pool pump motor total horsepower of less

than or equal to five horsepower;

(c) is marketed for use as a replacement motor in self-priming pool

filter pump, non-self-priming pool filter pump or pressure cleaner

booster pump applications; and

(d) excludes polyphase replacement dedicated-purpose pool pump motors

capable of operating without a drive, and is sold or offered for sale

without a drive that converts single-phase power to polyphase power.

30. "Secretary" means the secretary of state.

31. "Single-voltage external AC to DC or AC to AC power supply" means

a device that:

(a) is designed to convert line voltage AC input into lower voltage DC

or AC output;

(b) is able to convert to only one DC or AC output voltage at a time;

(c) is sold with, or intended to be used with, a separate end-use

product that constitutes the primary load;

(d) is contained within a separate physical enclosure from the end-use

product;

(e) is connected to the end-use product via a removable or hard-wired

male/female electrical connection, cable, cord, or other wiring;

(f) does not have batteries or battery packs that physically attach

directly (including those that are removable) to the power supply unit;

(g) does not have a battery chemistry or type selector switch and an

indicator light; or does not have a battery chemistry or type selector

switch and a state of charge meter;

(h) has a nameplate output power less than or equal to two hundred

fifty watts.

32. "Standby-passive mode" means the condition in which a power supply

or consumer audio and video product is connected to a power source, and

does not fulfill its main function, and can be switched to active mode

with the remote control unit or an internal signal.

33. "Television (TV)" means an analog or digital device primarily

designed to receive and display terrestrial, satellite, cable, Internet

Protocol TV (IPTV), or other broadcast or recorded transmissions of

analog or digital video and audio signals. TVs include combination TVs,

television monitors, component TVs, and any unit that is marketed to the

consumer as a TV. "Television" does not include computer monitors.

34. "Torchiere lighting fixture" means a portable electric lighting

fixture with a reflective bowl that is designed to direct light upward

onto a ceiling so as to produce indirect illumination on the surfaces

below.

35. "Unit heater" means a self-contained, vented fan-type commercial

space heater that uses natural gas or propane, and that is designed to

be installed without ducts within a heated space, except that such term

does not include any products covered by federal standards established

pursuant to 42 U.S. Code section 6291 and subsequent sections or any

product that is a direct vent, forced flue heater with a sealed

combustion burner.

36. "Vehicular traffic signal module" means an electrically operated

standard 8-inch (200mm) or 12-inch (300mm) round traffic control device

composed of one or more indications which is erected for the exclusive

purpose of directing vehicular traffic at signalized locations. It

consists of a light source, lens, and all parts necessary for operation.

It communicates traffic control messages through red, amber and green

colors.

37. "Video cassette recorder (VCR)" means a commercially available

analog recording device that includes an integral power supply and which

records television signals onto a tape medium for subsequent viewing.

38. The following definitions refer to air compressors:

(a) "Air compressor" means a compressor designed to compress air that

has an inlet open to the atmosphere or other source of air, and is made

up of a compression element (bare compressor), driver or drivers

mechanical equipment to drive the compressor element, and any ancillary

equipment.

(b) "Compressor" means a machine or apparatus that converts different

types of energy into the potential energy of gas pressure for

displacement and compression of gaseous media to any higher-pressure

values above atmospheric pressure and has a pressure ratio at full-load

operating pressure greater than 1.3.

39. The following definitions refer to air purifiers:

(a) "Air purifier", also known as "room air cleaner", means an

electric, cord-connected, portable appliance with the primary function

of removing particulate matter from the air and which can be moved from

room to room.

(b) "Industrial air purifier" means an indoor air cleaning device

manufactured, advertised, marketed, labeled, and used solely for

industrial use that are marketed solely through industrial supply

outlets or businesses and prominently labeled as "Solely for industrial

use. Potential health hazard: emits ozone."

40. "Commercial dishwasher" means a machine designed to clean and

sanitize plates, pots, pans, glasses, cups, bowls, utensils, and trays

by applying sprays of detergent solution (with or without blasting media

granules) and a sanitizing rinse and is not a "compact dishwasher" or

"standard dishwasher" (capacity less than eight place settings plus six

serving pieces as specified in ANSI/AHAM DW-1 using the test load

specified in section 2.7 of appendix C in subpart B of 10 CFR 430.2).

41. "Commercial fryer" means an appliance for non-residential use,

including a cooking vessel, in which oil is placed to such a depth that

the cooking food is essentially supported by displacement of the cooking

fluid rather than by the bottom of the vessel. Heat is delivered to the

cooking fluid by means of an immersed electric element of band-wrapped

vessel (electric fryers) or by heat transfer from gas burners through

either the walls of the fryer or through tubes passing through the

cooking fluid (gas fryers).

41-a. "Commercial oven" means a chamber designed for heating,

roasting, or baking food by conduction, convection, radiation, and/or

electromagnetic energy.

42. "Commercial steam cooker" also known as "compartment steamer",

means a device for non-residential use with one or more food-steaming

compartments in which the energy in the steam is transferred to the food

by direct contact. Models may include countertop models, wall-mounted

models, and floor models mounted on a stand, pedestal, or cabinet-style

base.

42-a. "Commercial hot food holding cabinet" means a heated, fully

enclosed compartment, with one or more solid or partial glass doors,

that is designed to maintain the temperature of hot food that has been

cooked in a separate appliance. "Commercial hot food holding cabinet"

does not include heated glass merchandising cabinets, drawer warmers or

cook-and-hold appliances.

43. "Computer" means a device that performs logical operations and

processes data. A computer includes both stationary and portable units

and includes a desktop computer, a portable all-in-one, a notebook

computer, a mobile gaming system, a high-expandability computer, a

small-scale server, a thin client, and a workstation. Although a

computer is capable of using input devices and displays, such devices

are not required to be included with the computer when the computer is

shipped. A computer is composed of, at a minimum, (a) a central

processing unit (CPU) to perform operations or, if no CPU is present,

then the device must function as a client gateway to a server, and the

server acts as a computational CPU; (b) the ability to support user

input devices such as a keyboard, mouse, or touch pad; and (c) an

integrated display screen or the ability to support an external display

screen to output information. The term "computer" does not include a

tablet, a game console, a television, a device with an integrated and

primary display that has a screen size of twenty square inches or less,

a server other than a small-scale server, or an industrial computer.

43-a. "Computer monitor" means an analog or digital device of size

greater than or equal to seventeen inches and less than or equal to

sixty-one inches, that has a pixel density of greater than five thousand

pixels per square inch, and that is designed primarily for the display

of computer-generated signals for viewing by one person in a desk-based

environment. A computer monitor is composed of a display screen and

associated electronics. A computer monitor does not include, (a)

displays with integrated or replaceable batteries designed to support

primary operation without AC mains or external DC power (e.g. electronic

readers, mobile phones, portable tablets, battery-powered digital

picture frames); or (b) a television or signage display.

44. "General service lamp" shall include the following definitions:

(a) "Compact fluorescent lamp (CFL)" means an integrated or

non-integrated single-base, low-pressure mercury, electric-discharge

source in which a fluorescing coating transforms some of the ultraviolet

energy generated by the mercury discharge into light; this term shall

not include circline or U-shaped lamps.

(b) "General service incandescent lamp" means a standard incandescent

or halogen type lamp that is intended for general service applications,

has a medium screw base, has a lumen range of not less than three

hundred ten lumens and not more than two thousand six hundred lumens, or

in the case of a modified spectrum lamp, not less than two hundred

thirty-two lumens and not more than one thousand nine hundred fifty

lumens, and is capable of being operated at a voltage range at least

partially within one hundred ten and one hundred thirty volts; provided,

however, that this definition shall not apply to the following

incandescent lamps:

(i) Appliance lamps;

(ii) Black light lamps;

(iii) Bug lamps;

(iv) Colored lamps;

(v) G shape lamps (as defined in ANSI C78.20 and C79.1-2002) with a

diameter of five inches or more;

(vi) Infrared lamps;

(vii) Left-hand thread lamps;

(viii) Marine lamps;

(ix) Marine signal service lamps;

(x) Mine service lamps;

(xi) Plant light lamps;

(xii) Reflector lamps;

(xiii) Sign service lamps;

(xiv) Silver bowl lamps;

(xv) Showcase lamps;

(xvi) Rough service lamps;

(xvii) Shatter-resistant lamps (including shatter-proof lamps and

shatter-protected lamps);

(xviii) 3-way incandescent lamps;

(xix) Vibration service lamps;

(xx) AB, BA, CA, F, G16-1/2, G-25, G30, S, or M-14 lamps (as defined

in ANSI C79.1-2002 and ANSI C78.20) of forty watts or less;

(xxi) T shape lamps (as defined in ANSI C78.20 and ANSI C79.1-2002)

and that uses not more than forty watts or has a length of more than ten

inches; and

(xxii) Traffic signal lamps.

(c) "General service lamp" means a lamp that has an ANSI base, is able

to operate at a voltage of twelve volts or twenty-four volts, at or

between one hundred to one hundred thirty volts, at or between two

hundred twenty to two hundred forty volts, or of two hundred

seventy-seven volts for integrated lamps, or is able to operate at any

voltage for non-integrated lamps, has an initial lumen output of greater

than or equal to three hundred ten lumens (or two hundred thirty-two

lumens for modified spectrum general service incandescent lamps) and

less than or equal to three thousand three hundred lumens, is not a

light fixture, is not an LED downlight retrofit kit, and is used in

general lighting applications. General service lamps shall include, but

not be limited to, general service incandescent lamps, incandescent

reflector lamps, compact fluorescent lamps, general service light

emitting diode lamps, and general service organic light emitting diode

lamps. General service lamps shall not include:

(i) Appliance lamps;

(ii) Black light lamps;

(iii) Bug lamps;

(iv) Colored lamps;

(v) G shape lamps with a diameter of five inches or more as defined in

ANSI C79.1-2002;

(vi) General service fluorescent lamps;

(vii) High intensity discharge lamps;

(viii) Infrared lamps;

(ix) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not

have Edison screw bases;

(x) Lamps that have a wedge base or prefocus base;

(xi) Left-hand thread lamps;

(xii) Marine lamps;

(xiii) Marine signal service lamps;

(xiv) Mine service lamps;

(xv) MR shape lamps that have a first number symbol equal to sixteen

(diameter equal to two inches) as defined in ANSI C79.1-2002, operate at

twelve volts and have a lumen output greater than or equal to 800;

(xvi) Other fluorescent lamps;

(xvii) Plant light lamps;

(xviii) R20 short lamps;

(xix) Reflector lamps that have a first number symbol less than

sixteen (diameter less than two inches) as defined in ANSI C79.1-2002

and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28,

E29/53x39, E39, E39d, EP39, or EX39 bases;

(xx) S shape or G shape lamps that have a first number symbol less

than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as

defined in ANSI C79.1-2002;

(xxi) Sign service lamps;

(xxii) Silver bowl lamps;

(xxiii) Showcase lamps;

(xxiv) Specialty MR lamps;

(xxv) T shape lamps that have a first number symbol less than or equal

to 8 (diameter less than or equal to one inch) as defined in ANSI

C79.1-2002, nominal overall length less than twelve inches, and that are

not compact fluorescent lamps; and

(xxvi) Traffic signal lamps.

(d) "General service light-emitting diode (LED) lamp" means an

integrated or non-integrated LED lamp designed for use in general

lighting applications and that uses light-emitting diodes as the primary

source of light.

(e) "General service organic light-emitting diode (OLED) lamp" means a

thin-film light-emitting device that typically consists of a series of

organic layers between two electrical contacts (electrodes).

(f) "Incandescent reflector lamp" or "reflector lamp" means any lamp

in which light is produced by a filament heated to incandescence by an

electric current, which: contains an inner reflective coating on the

outer bulb to direct the light; is not colored; is not designed for

rough or vibration service applications; is not an R20 short lamp; has

an R, PAR, ER, BR, BPAR, or similar bulb shapes with an E26 medium screw

base; has a rated voltage or voltage range that lies at least partially

in the range of one hundred fifteen and one hundred thirty volts; has a

diameter that exceeds 2.25 inches; and has a rated wattage that is forty

watts or higher.

45. "Federally exempt fluorescent lamp" means any linear lamps

excluded from the definition of general service fluorescent lamps in 10

CFR 430.32(n). Federally exempt fluorescent lamps include high-CRI

linear fluorescent lamps, impact-resistant linear fluorescent lamps,

cold-temperature linear fluorescent lamps, and less than four-foot

linear fluorescent lamps.

46. The following definitions refer to portable air conditioners:

(a) "Portable air conditioner" means a portable encased assembly,

other than a packaged terminal air conditioner, room air conditioner, or

dehumidifier, that delivers cooled, conditioned air to an enclosed

space, and is powered by single-phase electric current. Such portable

air conditioner includes a source of refrigeration and may include

additional means for air circulation and heating and may be a

single-duct or a dual-duct portable air conditioner.

(b) "Single-duct portable air conditioner" means a portable air

conditioner that draws all of the condenser inlet air from the

conditioned space without the means of a duct and discharges the

condenser outlet air outside the conditioned space through a single-duct

attached to an adjustable window bracket.

(c) "Dual-duct portable air conditioner" means a portable air

conditioner that draws some or all of the condenser inlet air from

outside the conditioned space through a duct attached to an adjustable

window bracket, may draw additional condenser inlet air from the

conditioned space, and discharges the condenser outlet air outside the

conditioned space by means of a separate duct attached to an adjustable

window bracket.

46-a. "Residential ventilating fan" means a fan with the purpose to

actively supply air to or remove air from the inside of a residence.

This includes ceiling and wall-mounted fans or remotely mounted in-line

fans designed to be used in a bathroom or utility room, supply fans

designed to provide air to indoor space and kitchen range hoods. Supply

fans may also be designed to filter incoming air.

47. "Telephone" means an electronic product whose primary purpose is

to transmit and receive sound over a distance using a voice or data

network.

48. The following definitions refer to faucets and showerheads:

(a) "Faucet" means a lavatory faucet, kitchen faucet, metering faucet,

public lavatory faucet, or replacement aerator for a lavatory, public

lavatory or kitchen faucet.

(b) "Public lavatory faucet" means a fitting intended to be installed

in nonresidential bathrooms that are exposed to walk-in traffic.

(c) "Metering faucet" means a faucet that, when turned on, will

gradually shut itself off over a period of several seconds.

(d) "Replacement aerator" means an aerator sold as a replacement,

separate from the faucet to which it is intended to be attached.

(e) "Showerhead" means a device through which water is discharged for

a shower bath and includes a hand-held showerhead but does not include a

safety shower showerhead.

(f) "Hand-held showerhead" means a showerhead that can be held or

fixed in place for the purpose of spraying water onto a bather and that

is connected to a flexible hose.

49. The following definitions refer to urinals and water closets:

(a) "Plumbing fixture" means an exchangeable device, which connects to

a plumbing system to deliver and drain away water and waste.

(b) "Urinal" means a plumbing fixture that receives only liquid body

waste and, conveys the waste through a trap into a drainage system.

(c) "Water closet" means a plumbing fixture having a water-containing

receptor that receives liquid and solid body waste through an exposed

integral trap into a drainage system.

(d) "Dual-flush effective flush volume" means the average flush volume

of two reduced flushes and one full flush.

(e) "Dual-flush water closet" means a water closet incorporating a

feature that allows the user to flush the water closet with either a

reduced or a full volume of water.

(f) "Trough-type urinal" means a urinal designed for simultaneous use

by two or more persons.

50. The following definitions refer to spray sprinkler bodies:

(a) "Pressure regulator" means a device that maintains constant

operating pressure immediately downstream from the device, given higher

pressure upstream.

(b) "Spray sprinkler body" means the exterior case or shell of a

sprinkler incorporating a means of connection to the piping system

designed to convey water to a nozzle or orifice.

51. "Uninterruptable power supply" means a battery charger consisting

of a combination of convertors, switches and energy storage devices

(such as batteries), constituting a power system for maintaining

continuity of load power in case of input power failure.

52. "Commercial battery charger system (BCS)" or "state-regulated BCS"

means a battery charger coupled with its batteries or battery chargers

coupled with their batteries, which together are referred to as

state-regulated battery charger systems. This term covers all

rechargeable batteries or devices incorporating a rechargeable battery

and the chargers used with them. Battery charger systems include, but

are not limited to:

(a) electronic devices with a battery that are normally charged from

AC line voltage or DC input voltage through an internal or external

power supply and a dedicated battery charger;

(b) the battery and battery charger components of devices that are

designed to run on battery power during part or all of their operations;

(c) dedicated battery systems primarily designed for electrical or

emergency backup; and

(d) devices whose primary function is to charge batteries, along with

the batteries they are designed to charge. These units include chargers

for power tool batteries and chargers for automotive, AA, AAA, C, D, or

9V rechargeable batteries, as well as chargers for batteries used in

larger industrial motive equipment and a la carte chargers.

The charging circuitry of battery charger systems may or may not be

located within the housing of the end-use device itself. In many cases,

the battery may be charged with a dedicated external charger and power

supply combination that is separate from the device that runs on power

from the battery. State-regulated battery charger systems do not include

federally regulated battery chargers that are covered under standards in

10 C.F.R. section 430.32(z).

53. "Gas fireplace" means a decorative gas fireplace or a heating gas

fireplace.

(a) "Decorative gas fireplace" means a vented fireplace, including

appliances that are freestanding, recessed, zero clearance, or a gas

fireplace insert, that is fueled by natural gas or propane, is marked

for decorative use only, and is not equipped with a thermostat or

intended for use as a heater.

(b) "Heating gas fireplace" means a vented fireplace, including

appliances that are freestanding, recessed, zero clearance, or a gas

fireplace insert, that is fueled by natural gas or propane and is not a

decorative fireplace.

54. "Manufactured home" has the meaning ascribed to that term by

subdivision seven of section six hundred one of the executive law.

55. "Recreational vehicle" means a van or utility vehicle used for

recreational purposes.

56. "Uniform code" means the New York state uniform fire prevention

and building code adopted pursuant to article eighteen of the executive

law.

57. "Energy code" means the New York state energy conservation

construction code adopted pursuant to article eleven of this chapter.

58. "Electric vehicle supply equipment (EVSE)" means equipment that

supplies electricity in an appropriate form to storage devices,

including batteries and super capacitors, that are part of electric

vehicles. Such term shall include equipment that performs this function

and equipment that is embedded in electric vehicles.

59. "Electric vehicle" means an on-road vehicle that draws electricity

for propulsion from a traction battery with a least five kilowatt-hours

(kWh) of capacity, and uses an external source of energy to recharge the

battery. Such term shall include a plug-in hybrid electric vehicle

(PHEV) with a second source of energy for propulsion, and a battery

electric vehicle (BEV), which is powered solely by externally supplied

electricity stored on-board such electric vehicle.

60. "Commercial clothes dryer" means a clothes dryer designed to dry

fabrics in a tumble-type drum with forced air circulation and is

designed for use in:

(a) Applications in which the occupants of more than one household

will be using the clothes dryer, including multi-family housing common

areas and coin laundries; or

(b) Other commercial applications.

61. "Commercial and industrial fans and blowers" means a rotary-bladed

machine used to convert power to air power, with a brake horsepower

greater than or equal to either one kilowatt or one horsepower, and an

air horsepower less than or equal to one hundred fifty, and used for

commercial and industrial purposes.

62. "Imaging equipment" means copiers, printers, scanners, fax

machines, and multifunction devices used both in homes and businesses.

63. "Landscape irrigation controller" means a device intended to

remotely control valves to operate an irrigation system for landscapes,

which may consist of grass, shrubs, trees and/or other vegetation. This

term shall not include devices that are typically sold separately and

used primarily for other purposes, such as a network router, and may be

used incidentally for a landscape irrigation controller. This term shall

not include battery powered hose-end timers or devices used primarily in

agricultural applications.

64. "Outdoor lighting" means electrical lighting used to illuminate

outdoor areas, including parking lots, streetlights, highways and area

luminaires.

65. "Plug-in luminous signs" means a self-contained, luminous sign

unit that plugs into 120V AC building mains power and is intended for

indoor use only. Signs may be intended for use in commercial outlets in

business establishments or in residences.

66. "Small network equipment" means a device whose primary function is

to pass internet protocol (IP) traffic among various network interfaces

or ports intended for use in residential and small business settings.

67. "Tub spout diverters" means the following definitions:

(a) A bath and shower diverter whose diverter mechanism is located in

the tub spout; and/or

(b) Bath and shower diverter means a device used to direct the flow of

water either toward a tub spout or toward a secondary outlet intended

for showering purposes, including a showerhead or body spray.

Applicability, conduct prohibited. 1. The provisions of this

article apply to the establishment of, testing for compliance with,

certification of compliance with, and enforcement of efficiency

standards for the following new products which are sold, or offered for

sale, leased or offered for lease, rented or offered for rent or

installed or offered to install in New York state unless preempting

federal appliance standards are in effect: (a) automatic commercial ice

cube machines; (b) ceiling fan light kits; (c) commercial pre-rinse

spray valves; (d) commercial refrigerators, freezers and

refrigerator-freezers; (e) consumer audio and video products; (f)

illuminated exit signs; (g) incandescent reflector lamps; (h) very large

commercial packaged air-conditioning and heating equipment; (i) metal

halide lamp fixtures; (j) pedestrian traffic signal modules; (k) power

supplies; (l) torchiere lighting fixtures; (m) unit heaters; (n)

vehicular traffic signal modules; (o) portable light fixtures; (p)

bottle-type water dispensers; (q) commercial hot food holding cabinets;

(r) portable electric spas; (s) replacement dedicated-purpose pool pump

motors; (t) air compressors; (u) air purifiers; (v) commercial

dishwashers; (w) commercial fryers; (x) commercial steam cookers; (y)

computers and computer monitors; (z) general service lamps; (aa)

federally exempt fluorescent lamps; (bb) portable air conditioners; (cc)

residential ventilating fans; (dd) telephones; (ee) faucets; (ff)

showerheads; (gg) urinals; (hh) water closets; (ii) sprinkler bodies;

(jj) uninterruptable power supplies; (kk) light emitting diode lamps;

(ll) electric vehicle supply equipment; (mm) commercial battery charger

systems; (nn) commercial ovens; (oo) commercial clothes dryers; (pp)

commercial and industrial fans and blowers; (qq) imaging equipment; (rr)

landscape irrigation controllers; (ss) outdoor lighting; (tt) plug-in

luminous signs; (uu) small network equipment; (vv) tub spout diverters;

(ww) commercial hot food holding cabinets; (xx) gas fireplaces; (yy)

products for which efficiency standards shall have been established

pursuant to paragraph (b) or (c) of subdivision one of section 16-106 of

this article; and (zz) products that had been subject to any federal

efficiency standard referred to in section 16-105 of this article that

have been continued in this state pursuant to such section.

2. No person shall sell or offer for sale, lease or offer to lease, or

rent or offer to rent, or install or offer to install in New York state

any new product of the types enumerated in paragraphs (a) through (xx)

of subdivision one of this section, or any new product for which

efficiency standards shall have been established pursuant to paragraph

(b) or (c) of subdivision one of section 16-106 of this article, or any

new product that is subject to any federal efficiency standard that

shall have been continued in this state pursuant to section 16-105 of

this article, unless:

(a) it meets the efficiency standards applicable to such product as of

the date of manufacture of such product or as of such other date as may

be determined in accordance with the regulation establishing the

standard for such product; and

(b) if required by regulations adopted pursuant to this article, the

manufacturer of such product certifies that the product meets said

efficiency standards. As used within this subdivision, reference to any

new product means any individual product subject to the requirements of

this article.

3. The prohibitions contained in subdivision two of this section shall

not apply to:

(a) products manufactured in the state and sold outside the state;

(b) products manufactured outside the state and sold at wholesale

inside the state for final retail sale outside the state;

(c) products installed in manufactured homes at the time of

construction;

(d) products designed expressly for installation and use in

recreational vehicles; or

(e) urinals and water closets designed and marketed exclusively for

use at prisons or mental health care facilities.

4. The adoption of efficiency standards for any water-related

appliances, equipment or fixtures shall be subject to approval by the

commissioner of environmental conservation. Any such standard which

would conflict with the provisions of section 15-0314 of the

environmental conservation law shall not take effect until and unless

waived by the commissioner of environmental conservation.

5. In adopting the flexible demand appliance standards, the New York

state energy research and development authority shall consider the

National Institute of Standards and Technology reliability and

cybersecurity protocols, relevant New York cybersecurity laws,

regulations, and advisories, or other cybersecurity protocols that are

equally or more protective, and shall adopt, at a minimum, the North

American Electric Reliability Corporation's Critical Infrastructure

Protection standards.

Adoption of certain federal efficiency standards. 1. The

federal efficiency standard established in 10CFR Parts 430 and 431, as

in effect on January first, two thousand eighteen shall be applicable to

products which are subject to such federal efficiency standards and

which are sold, offered for sale, or installed in New York state. So

long as such federal efficiency standards remain in effect as federal

efficiency standards, they shall be enforced as provided by federal law.

The president shall adopt by regulation all such federal efficiency

standards and provided that, if any such federal efficiency standard is

withdrawn, repealed, voided, or otherwise ceases to remain in effect as

a federal efficiency standard:

(a) such efficiency standard shall be continued in this state;

(b) until and unless amended or repealed pursuant to this article, the

president shall be authorized to adopt regulations establishing

procedures for testing the energy reduction, water conservation,

greenhouse gas reduction, and/or increased demand flexibility associated

with such product;

(c) the president shall be authorized to adopt regulations

establishing procedures for manufacturers of such product to certify

that such product meets such efficiency standard, if the president

determines that such manufacturer's certifications should be required;

(d) the president shall be authorized to adopt regulations amending

such efficiency standard from time to time, including regulations that

repeal such efficiency standard, or increase the stringency of such

efficiency standard; and

(e) if federal preemption has been waived for any particular federal

efficiency standard or standards, the president may adopt such standard

or may adopt a different standard.

2. This section shall not apply to any federal efficiency standard set

aside by a court upon the petition of a person who will be adversely

affected, as provided in 42 U.S.C. § 6306(b).

Powers and duties of the president and the secretary. 1. The

president in consultation with the secretary shall have and be entitled

to exercise the following powers and duties:

(a) To adopt regulations establishing efficiency standards for the

products listed in paragraphs (a) through (xx) of subdivision one of

section 16-104 of this article, including but not limited to,

establishing efficiency standards for power supplies in the active mode

and no-load mode or other such products while in the active mode and in

the standby-passive-mode;

(b) To adopt regulations establishing efficiency standards for

products not specifically listed in paragraphs (a) through (xx) of

subdivision one of section 16-104 of this article, provided that the

president determines that establishing such efficiency standards would

serve to promote energy reduction, water conservation, greenhouse gas

reduction, and/or increased demand flexibility associated with the

regulated product categories in this state. To the maximum extent

feasible the president shall coordinate any such adoption with similar

efforts by other states. Any regulation adopted pursuant to this

paragraph may include provisions establishing procedures for testing the

efficiency of the covered products and provisions establishing

procedures for manufacturers of such product to certify that such

products meet the efficiency standards, if the president determines that

such manufacturer's certifications should be required;

(c) To review efficiency standards as adopted from time to time by

other states for products not listed in paragraphs (a) through (xx) of

subdivision one of section 16-104 of this article, and to adopt

regulations establishing efficiency standards similar to those adopted

by any other state for such products, provided that the president

determines that establishing such efficiency standards would serve to

promote energy reduction, water conservation, greenhouse gas reduction,

and/or increased demand flexibility associated with the regulated

product categories in this state. Any regulation adopted pursuant to

this paragraph may include provisions establishing procedures for

testing the efficiency of the covered products and provisions

establishing procedures for manufacturers of such product to certify

that such products meet the efficiency standards, if the president

determines that such manufacturer's certifications should be required;

(d) To adopt regulations to achieve the purposes of this article. Such

regulations shall ensure that compliance therewith will not result in a

net increase in co-pollutant emissions or otherwise disproportionately

burden disadvantaged communities as identified by the climate justice

working group established under section 75-0111 of the environmental

conservation law. In order to increase public participation and improve

the efficacy of any efficiency standards adopted pursuant to subdivision

(b) or (c) of this section, the president shall, before publication of a

notice of proposed rule making, conduct public meetings to provide

meaningful opportunities for public comment from all segments of the

population that would be impacted by the standards or regulations,

including persons living in disadvantaged communities as identified by

the climate justice working group established under section 75-0111 of

the environmental conservation law;

(e) To conduct investigations, test, and obtain data with respect to

research experiments and demonstrations, and to collect and disseminate

information regarding the purposes to be achieved pursuant to this

article;

(f) To accept grants or funds for purposes of administration and

enforcement of this article. Notwithstanding any other provision of law

to the contrary, the president is hereby authorized to accept grants or

funds, including funds directed through negotiated settlements or

consent orders pursuant to this article. All funds accepted by the

president for the purposes of this article shall be deposited in the

efficiency standards administration account established by the New York

state energy research and development authority and maintained in a

segregated account in the custody of the commissioner of taxation and

finance. All expenditures from the efficiency standards administration

account pursuant to this article shall be made by the New York state

energy research and development authority to carry out studies,

investigations, research, expenses to provide for expert witness,

consultant, enforcement, administrative and legal fees, including

disbursements to the department of state to support enforcement

activities authorized by the secretary pursuant to this section, and

other related expenses pursuant to this article. All deposits made to

the efficiency standards administration account made by the New York

state energy research and development authority, all funds maintained in

the efficiency standards administration account, and disbursements

therefrom, made pursuant to this article shall be subject to an annual

independent audit as part of such authority's audited financial

statements, and such authority shall prepare an annual report

summarizing efficiency standards administration account balance and

activities for each fiscal year ending March thirty-first. In addition

to submitting such report as provided in section one thousand eight

hundred sixty-seven of the public authorities law, the authority shall

provide such report to the secretary no later than ninety days after

commencement of such fiscal year;

(g) To consult with the appropriate federal agencies, including, but

not limited to, the federal department of energy and other potentially

affected parties in carrying out the provisions of this article; and

(h) To conduct investigations, in consultation with the secretary, to

determine if products covered by standards adopted pursuant to this

article comply with such standards; to conduct tests to determine if

products covered by standards adopted pursuant to this article comply

with such standards; to prepare written reports of the results of such

investigations and tests; to provide such reports to the secretary; in

consultation with the secretary, to negotiate settlement agreements with

any person that violates the provisions of subdivision two of section

16-104 of this article, or fails to perform any duty imposed by this

article, or violates or fails to comply with any rule, regulation,

determination, or order adopted, made, or issued by the president or the

secretary pursuant to this article, pursuant to which such person shall

agree to cease such violation and to pay such civil penalty as may be

specified in such agreement, the terms of which will be incorporated

into a consent order signed by such person, the president, and the

secretary; to consult with the secretary in connection with

determinations made by the secretary pursuant to paragraph (b) of

subdivision five of this section; and to cooperate with the secretary in

enforcement proceedings conducted by the secretary pursuant to this

article.

1-a. Notwithstanding any other provision of this article, no

efficiency standard adopted pursuant to paragraph (a) of subdivision one

of this section shall become effective less than one hundred eighty days

after publication of the notice of adoption of such standard in the

state register; no efficiency standard adopted pursuant to paragraph (b)

or (c) of subdivision one of this section shall become effective less

than one year after publication of the notice of adoption of such

efficiency standard in the state register; no amendment of any

efficiency standard adopted pursuant to this article or of any

efficiency standard continued in this state pursuant to section 16-105

of this article shall become effective less than one hundred eighty days

after publication of the notice of adoption of such amendment in the

state register; and no new or amended efficiency standard adopted

pursuant to this article shall go into effect if federal government

efficiency standards regarding such product preempt state standards

unless preemption has been waived pursuant to federal law.

2. (a) On or before January first, two thousand twenty-three, the

president, in consultation with the secretary, shall adopt regulations

in accordance with the provisions of this article establishing:

(i) efficiency standards for new products of the types referred to in

paragraphs (a) through (f), paragraphs (h) through (y), paragraphs (aa)

through (jj) and paragraphs (mm) through (xx) of subdivision one of

section 16-104 of this article;

(ii) procedures for testing the efficiency of the new products of the

types referred to in paragraphs (a) through (f) and paragraphs (h)

through (xx) of subdivision one of section 16-104 of this article;

(iii) procedures for manufacturers to certify that new products of the

types referred to in paragraphs (a) through (f) and paragraphs (h)

through (xx) of subdivision one of section 16-104 of this article meet

the efficiency standards to be adopted pursuant to this article, if the

president determines that such manufacturer's certifications should be

required; and

(iv) such further matters as are necessary to insure the proper

implementation and enforcement of the provisions of this article.

(b) With respect to the types of products referred to in paragraph

(g), (z) or (kk) of subdivision one of section 16-104 of this article

(incandescent reflector lamps, general service lamps, and light emitting

diode lamps), the president shall conduct a study by December

thirty-first, two thousand twenty-three to determine whether an

efficiency standard for such products should be established, taking into

account factors including the potential impact on electricity usage,

product availability and consumer and environmental benefits. If the

president determines based on this study that such a standard would

reduce energy use and would not be preempted by the federal law, the

president shall adopt regulations in accordance with the provisions of

this article establishing efficiency standards for such products.

3. Subsequent to adopting regulations pursuant to subdivisions one and

two of this section, the president, in consultation with the secretary,

may amend such regulations, including increasing the stringency of the

efficiency standards.

** 4. By March fifteenth of two thousand twenty-one, the secretary and

the president shall produce a report to the governor, the speaker of the

assembly, the temporary president of the senate, the chair of the

assembly committee on energy and the chair of the senate committee on

energy and telecommunications on the status of regulations establishing

efficiency standards pursuant to this article, which shall indicate for

each product enumerated in subdivision one of section 16-104 of this

article the status of the implementation of efficiency standards. The

report shall also set forth the estimated potential annual reductions in

energy use and potential utility bill savings resulting from adopted

efficiency standards for the years two thousand twenty-five and two

thousand thirty-five and the potential cumulative reductions in energy

use through the year two thousand thirty-five. Such report shall be

updated in the same manner by March fifteenth, two thousand twenty-six

and two thousand thirty and copies of such updates shall be posted by

March fifteenth, two thousand twenty-seven and March fifteenth, two

thousand thirty on the websites of the authority and the department of

state.

** NB Repealed December 31, 2030

5. (a) In addition to all other powers and authority given to the

secretary by this article, the secretary shall have and be entitled to

exercise the following powers and duties:

(i) To request the president to conduct investigations to determine if

products covered by efficiency standards adopted pursuant to this

article comply with such efficiency standards; to consult with the

president in connection with the president's performance of such

investigations; to request the president to conduct tests to determine

if products covered by efficiency standards adopted pursuant to this

article comply with such efficiency standards; and to request the

president's cooperation in connection with enforcement proceedings

conducted by the secretary pursuant to this article;

(ii) To order the immediate cessation of any distribution, sale or

offer for sale, lease or offer to lease, rent or offer to rent, import,

or offer to import, or installation or offer of installation of any

product listed in paragraphs (a) through (xx) of subdivision one of

section 16-104 of this article, or of any product for which efficiency

standards shall have been established pursuant to paragraph (b) or (c)

of subdivision one of this section, or any product that is subject to a

federal efficiency standard that shall have been continued in this state

pursuant to section 16-105 of this article, if the secretary, in

consultation with the president, determines that such product does not

meet the applicable efficiency standard or if such product does not

satisfy the testing procedures or manufacturer's certification

procedures adopted pursuant to the regulations authorized by this

article;

(iii) To accept grants or funds for purposes of administration and

enforcement of this article;

(iv) To impose, after notice and an opportunity to be heard, civil

penalties and/or injunctive relief for any violation of this article or

any regulation adopted pursuant to this article. Any penalties collected

by the secretary under this section shall be placed in the account

established under section ninety-seven-www of the state finance law,

relating to the consumer protection account; and

(v) To adopt such rules and regulations as the secretary may deem

necessary or appropriate for the purpose of carrying out the powers and

duties granted to the secretary by this article.

(b) The secretary may exercise the powers and authority granted to the

secretary by this subdivision, or by any other provision of this

article, through the consumer protection division established by the

secretary pursuant to section ninety-four-a of the executive law or

through such other divisions, officers, or employees of the department

of state as the secretary may designate from time to time.

Subpoenas, information and document production, enforcement

procedures, referrals. 1. (a) In addition to all other powers provided

by this article, the secretary or his or her designee shall have the

power and authority to subpoena and require the attendance of witnesses

and the production of books, papers, contracts and any other documents

pertaining to any investigation or hearing conducted pursuant to this

article. The secretary may issue such subpoenas on his or her own

initiative or at the request of the president.

(b) If any person refuses to comply with a subpoena issued under this

section, the department may petition a court of competent jurisdiction

to enforce the subpoena and such sanctions as the court may direct.

(c) A subpoena issued under this subdivision shall be regulated by the

civil practice law and rules, and is in addition to and not in

limitation of the power to make information and document requests under

subdivision two of this section.

2. Any person that sells or offers for sale, leases or offers for

lease, rents or offers for rent, or installs or offers to install,

manufactures or tests in New York state any new product of a type listed

in paragraphs (a) through (xx) of subdivision one of section 16-104 of

this article, or any new product for which efficiency standards shall

have been established pursuant to paragraph (b) or (c) of subdivision

one of section 16-106 of this article, or any product that is subject to

federal efficiency standards that shall have been continued in this

state pursuant to section 16-105 of this article, shall be obliged, on

the request of the secretary or his or her designee, or the request of

the president or his or her designee, to supply the secretary and/or the

president with such information and documentation as may be required

concerning such person's business, business practices, or business

methods, or proposed business practices or methods. The obligations

contained in this subdivision shall not apply to any person that sells

or offers for sale, leases or offers for lease, rents or offers for

rent, or installs or offers to install only products described in

subdivision three of section 16-104 of this article. The power to make

information and document requests is in addition to and not in

limitation of the power to issue subpoenas.

3. The secretary shall, before ordering the immediate cessation of any

distribution, sale or offer for sale, lease or offer to lease, rent or

offer to rent, import or offer to import, or installation or offer of

installation of any product, or imposing any civil penalty, injunctive

relief, or other relief pursuant to this article upon any person who is

alleged to be in violation of any provision of this article or of any

regulation adopted pursuant to this article, and at least ten days prior

to the date set for the hearing, notify in writing and shall afford such

person an opportunity to be heard in person or by counsel in reference

thereto. Such written notice may be served by delivery of same

personally, or by mailing same by certified mail to the last known

business address of such person, or by any method authorized by the

civil practice law and rules. The hearing on such charges shall be at

such time and place as the department of state shall prescribe. A

hearing held by this subdivision shall be held pursuant to the state

administrative procedure act, and any applicable regulations adopted by

the secretary.

4. A final action of the secretary in imposing a civil penalty, or

other order, may be subject to review by a proceeding instituted under

article seventy-eight of the civil practice law and rules.

5. In addition to all other powers provided by this article, the

secretary and the president, are authorized, individually or jointly, to

refer the results of any investigation conducted by the president

pursuant to this article to the attorney general and to request the

attorney general to institute, in the name of the secretary and/or the

president, an action or proceeding to enforce the provisions of this

article. The attorney general shall, at the request of the secretary or

president, or may, on his or her own initiative, institute proceedings

to enforce the provisions of this article including the imposition of

civil penalties or injunctive relief. Nothing in this subdivision shall

limit or impair the power and authority of the secretary to conduct

enforcement proceedings, to issue orders pursuant to paragraph (b) of

subdivision five of section 16-106 of this article, and to impose

penalties pursuant to section 16-108 of this article.

Violations, civil liability. 1. Any person who issues:

(a) a certification that a product listed in paragraphs (a) through

(xx) of subdivision one of section 16-104 of this article complies with

the efficiency standards for such product established by or pursuant to

this article;

(b) a certification that a product not listed in paragraphs (a)

through (xx) of subdivision one of section 16-104 of this article

complies with efficiency standards for such product established pursuant

to paragraph (b) or (c) of subdivision one of section 16-104 of this

article; or

(c) a certification that a product that is subject to federal

efficiency standards that shall have been continued in this state

pursuant to section 16-105 of this article complies with such efficiency

standards, knowing that such product does not comply with such

efficiency standards, shall be liable for a civil penalty of not more

than ten thousand dollars for each such product certified and an

additional penalty of not more than ten thousand dollars for each day

during which such violation continues.

2. Any person who violates the provisions of subdivision two of

section 16-104 of this article, or fails to perform any duty imposed by

this article, or violates or fails to comply with any rule, regulation,

determination, or order adopted, made, or issued by the president or the

secretary pursuant to this article, shall be liable for a civil penalty

of not more than five hundred dollars for each such violation and an

additional civil penalty of not more than one hundred dollars for each

day during which such violation continues, and, in addition thereto,

such person may be enjoined from continuing such violation.

3. An action or cause of action for the recovery of a penalty under

this section may be settled or compromised in an amount to be approved

by the secretary either before or after proceedings are brought to

recover such penalties and prior to the entry for judgment therefor.

Conflicts with other laws. Nothing in this article or in any

regulation adopted pursuant to this article shall limit, impair, or

supersede the provisions of subdivision one of section three hundred

eighty-three of the executive law or the provisions of subdivision three

of section 11-103 of this chapter.

Definitions. For the purpose of this article, the following

terms shall have the following meanings:

1. "Residential structure" shall mean a one or two family dwelling or

a single unit of a multiple dwelling, including an individual

condominium unit or cooperative unit, which is offered for sale or

rental on or after January first, nineteen hundred eighty-one by any

person other than the original contractor or builder of any such

dwelling.

2. "Heating and/or cooling bills" shall mean all bills rendered by a

retail vendor for energy used for heating and/or cooling purposes in a

residential structure, including any bills where the cost of energy used

for heating and/or cooling purposes is not differentiated from the costs

of energy used for any other purpose.

3. "Lessor" shall mean any person who offers any residential structure

for lease to the general public.

4. "Seller" shall mean any person who offers a residential structure

for sale to the general public.

Administration. Notwithstanding any other provision of law,

the New York state energy research and development authority shall be

deemed to have the responsibility and authority to implement the

provisions of this article.

Truth in heating. 1. (a) On or after January first,

nineteen hundred eighty-one, the seller of a residential structure

shall, within fifteen days of receipt of a written request from a

prospective purchaser, furnish such purchaser a complete set of heating

and/or cooling bills, or a summary of such heating and/or cooling bills,

for the life of the structure or for the preceding two years, whichever

is shorter. A seller need not honor a request for heating or cooling

bills if such request is initially made after the signing of a purchase

contract.

(b) (1) On or after January first, nineteen hundred eighty-four, the

seller of a residential structure shall, within fifteen days of receipt

of a written request from a prospective purchaser, furnish such

purchaser with a statement of the following:

(i) The type and areas of insulation installed by the seller in such

structure during his ownership.

(ii) The type and areas of insulation installed in such structure by

any previous owner, known to the seller.

(iii) As used in this paragraph, "insulation" shall include but shall

not be limited to any type of material permanently placed within or

contiguous to a wall, ceiling or floor of a room or building for the

purpose of reducing heat transfer and thus the energy requirements for

heating and cooling the building.

(2) The seller need not honor a request for the information described

in this paragraph if such request is initially made after the signing of

a purchase contract.

(3) A seller shall be subject to the imposition of penalties under

this article, including section 5-119, for failure to provide the

statement required by subparagraph one of this paragraph.

(4) The commissioner shall not evaluate the sufficiency or accuracy of

any statement concerning insulation furnished, pursuant to this

paragraph, to a prospective purchaser.

(c) On or after January first, nineteen hundred eighty-one, the lessor

of a residential structure where the lessee is responsible for payment

of the heating and/or cooling bills shall, immediately upon receipt of a

request from a prospective lessee, furnish such lessee a complete set of

heating and/or cooling bills, or a summary of heating and/or cooling

bills, for the life of the structure or for the preceding two years,

whichever is shorter.

(d) All heating and/or cooling bills furnished by a seller or lessor

shall indicate whether the residential structure was occupied during the

period of time for which the heating and/or cooling bills are supplied.

(e) A seller who lacks all or part of such heating and/or cooling

bills shall request the retail vendor of fuel or utility services to

provide such seller with a complete set of heating and/or cooling bills,

or a summary thereof. Where a seller is still unable to furnish a

prospective purchaser with a complete set of heating and/or cooling

bills, or a summary thereof, he shall nevertheless provide the

prospective purchaser with whatever records he has been able to obtain,

or a summary thereof, and indicate which periods of time and/or which

fuel or utility services are not covered by the incomplete records or

summary provided.

(f) No charge or fee shall be imposed on any purchaser or lessee by

any seller or lessor for furnishing heating and/or cooling bills or

summaries thereof pursuant to the provisions of this section. No lessor

or seller shall disclose the name of a tenant in connection with the

furnishing of heating and/or cooling bills or summaries thereof without

the consent of such tenant.

2. (a) Every retail vendor of fuel or utility services used for

heating and/or cooling residential structures shall maintain records of

the cost of fuel or utility services provided such structures for at

least two calendar years.

(b) Within ten days after receiving a request from the seller or

lessor of a residential structure, a retail vendor shall furnish such

owner with duplicate copies of the heating and/or cooling bills, or a

summary of the heating and/or cooling bills, for the life of the

structure or the preceding two year period, whichever is shorter. A

retail vendor shall not require the consent of a current tenant or prior

owner to provide such duplicate copies or summaries, provided that no

such copy or summary shall contain information relating to the status of

such tenant's or prior owner's account with the retail vendor.

(c) A retail vendor may charge a fee of five dollars for providing

such duplicate copies of heating and/or cooling bills, or a summary of

such bills, to any such owner.

3. (a) The maximum penalty which may be recovered pursuant to section

5-119 of this chapter, for a violation of this section by any seller,

lessor or vendor shall be one hundred dollars for each separate and

distinct violation; provided, however, that (i) a seller shall not be in

violation of this section due to the failure by a vendor to furnish

heating and/or cooling bills upon receipt of such a request by the

seller, and (ii) a lessor shall not be in violation of this section if

the lessor commenced an act to obtain immediately the heating and/or

cooling bills upon receiving notice that the structure was to be vacated

and had not yet received such bills from the vendor.

(b) The failure of a seller or lessor to furnish the heating and/or

cooling bills required pursuant to this section to a prospective

purchaser or lessee shall not affect legal title to any residential

structure or permit any purchaser or lessee of any such structure to

avoid any obligations he may have under any purchase contract or lease.

4. (a) The commissioner, after consultation with the department of

public service, shall promulgate rules and regulations to implement the

provisions of this section relating to the furnishing and maintenance of

heating and/or cooling bills. The commissioner shall waive in whole or

in part a requirement that records be furnished for any period prior to

the promulgation of such rules and regulations if such records have not

been maintained by a retail vendor.

(b) On or before September first, nineteen hundred eighty the

commissioner shall notify all retail vendors of fuel or utility services

of the requirements of this section, and of their obligations to

maintain and supply heating and/or cooling bills, or summaries thereof,

under this section.

Heating system efficiency tests. 1. For the purposes of

this section:

a. "Contractor" means any person who contracts to install, repair or

service oil or gas heating systems for customers.

b. "Oil heating system" means a device which burns either No. 2 or No.

4 fuel oil for heating purposes.

c. "Gas heating system" means a device which burns either natural gas

or propane for central heating purposes.

d. "Service contract" means an oral or written agreement between a

contractor and a customer which requires the contractor to service the

customer's oil or gas heating system.

e. "Customer" means any person who resides in, or is the owner of, a

one, two or three-family dwelling or a single unit of a multiple

dwelling, including an individual condominium unit or cooperative unit,

who uses an oil or gas heating system for heating such dwelling or unit

and who is responsible for the operation and maintenance of such oil or

gas heating system.

f. "Efficiency test" means a test of steady-state efficiency and shall

include the following procedures: (1) with respect to an oil heating

system, measuring the carbon monoxide, measuring the carbon dioxide or

oxygen content, measuring the net stack temperature, measuring the smoke

level, and such other procedures as the contractor shall deem

appropriate; and (2) with respect to a gas heating system, measuring the

carbon monoxide, measuring the carbon dioxide or oxygen content,

measuring the net stack temperature, and such other procedures as the

contractor shall deem appropriate.

2. Every contractor who offers to perform service contracts for

customers shall offer to include in such contracts a yearly efficiency

test. Such test, which shall be at a customer's option, shall be

performed after any repairs or adjustments have been completed pursuant

to the service contract, and the additional cost, if any, for such test

shall be separately charged. Upon the completion of any such test, the

contractor shall provide the customer with a form listing the values for

carbon monoxide, carbon dioxide or oxygen content, the net stack

temperature, and the smoke level, as appropriate, and the steady-state

efficiency (expressed in a percentage) determined therefrom.

3. The commissioner shall make reasonable efforts to notify all

contractors of their obligation to offer efficiency tests to customers

as provided by the provisions of this section.

Definitions. As used in this article, unless the context

otherwise requires:

1. "Commissioner" means the commissioner of environmental

conservation.

2. "Board" means the state board on temporary nuclear waste repository

siting established by section 18-105 of this article.

3. "Application" means an application for a certificate.

4. "Certificate" means a temporary nuclear waste repository siting

certificate issued pursuant to the provisions of this article.

5. "Person" means any individual, partnership, association,

corporation, public benefit corporation, municipality, political

subdivision, governmental agency (including any agency of the federal

government), trust, estate, or other legal entity.

6. "Municipality" means a county, city, town or village.

7. "Temporary nuclear waste repository" means any facility where spent

fuel rods from nuclear reactors are received on or after the effective

date of this article and are stored pending further or final disposal,

except a facility located in the immediate vicinity of a nuclear power

generating facility or an operating nuclear reactor which is used to

store, on an interim or temporary basis, spent nuclear fuel from nuclear

power generating facilities or operating nuclear reactors located in

this state.

Establishment of temporary nuclear waste repositories. 1.

No person shall establish or operate a temporary nuclear waste

repository within this state unless he has been granted a certificate by

the board. Any such temporary nuclear waste repository with respect to

which a certificate is issued shall not thereafter be built, maintained

or operated except in conformity with such certificate and any terms,

limitations or conditions contained therein, provided that nothing

herein shall exempt such temporary nuclear waste repository from

compliance with state law and regulations thereunder subsequently

adopted or with municipal laws and regulations thereunder not

inconsistent with the provisions of such certificate. A certificate for

a temporary nuclear waste repository may be issued only pursuant to this

article.

2. Notwithstanding any other provision of law, no state agency,

municipality or any agency thereof may, except as expressly authorized

by this article by the board, require any approval, consent, permit,

certificate or other condition for the construction or operation of a

temporary nuclear waste repository with respect to which an application

for a certificate hereunder has been filed, other than those provided by

otherwise applicable state law for the protection of employees engaged

in the construction and operation of such facility, and provided that in

the case of a municipality or an agency thereof, such municipality has

received notice of the filing of the application therefor.

3. Neither the St. Lawrence eastern Ontario commission nor the

Adirondack park agency shall hold public hearings for a temporary

nuclear waste repository with respect to which an application hereunder

has been filed, provided that such commission or agency has received

notice of the filing of such application.

State board on temporary nuclear waste repository siting.

1. There is hereby created the state board on temporary nuclear waste

repository siting. The board shall consist of the commissioner of

environmental conservation, the commissioner of health, and three ad hoc

members appointed by the governor, one of whom shall be from the

judicial district in which the proposed facility is located, one of whom

shall be upon the recommendation of the temporary president of senate,

and one of whom shall be upon the recommendation of the speaker of the

assembly. No person may be so designated who retains or holds any

official relation to or financial interest in an electric utility

corporation in the state, or in the applicant or any subsidiary or

entity affiliated with the applicant, nor shall such person have been a

director, officer or employee thereof; provided, however, that prior

employment with an agency of the state or federal government shall not

disqualify any person from being designated for appointment to the

board. Each such designee, unless he holds another state or local

office, except the office of notary public, and for which he receives

compensation, shall receive the sum of two hundred dollars for each day

in which he is actually engaged in the performance of his duties herein.

Every member shall be entitled to receive reimbursement for the actual

and necessary expenses incurred by him in the performance of such

duties.

2. The commissioner of environmental conservation shall serve as

chairman. Three of the five persons on the board shall constitute a

quorum for the transaction of any business on the board, and the

decision of three members of the board shall constitute action of the

board. The board shall have the power to adopt regulations and establish

procedures to be used in acting upon applications filed pursuant to this

article.

3. The board may employ such hearing examiners and such legal,

technical and other consultants and other personnel as it deems

necessary. The board may provide for its own representation and

appearance in all actions and proceedings involving issues under this

article. The department of environmental conservation shall provide such

meeting rooms, hearing rooms, and other facilities as the board may

request in the performance of its duties.

Filing of application for certificate; docketing; convening

of board. 1. Any person seeking to establish or operate a temporary

nuclear waste repository shall file an application for a certificate

with the commissioner. Copies of such application shall be served on

each municipality within which the facility is proposed to be situated

or operated, as well as with any other governmental agency specified in

subdivision two or three of section 18-103 of this article having

jurisdiction. Such application shall meet requirements of section 18-109

of this article. Such application shall be accompanied by a deposit of

three hundred thousand dollars, which shall be used by the board to

defray its expenses; provided, however, that upon the termination of a

proceeding under this article, any unexpended balance shall be returned

to the applicant.

2. Within sixty days after the receipt of an application filed

pursuant to this section, the commissioner shall determine whether the

application complies with section 18-109 of this article. If he finds

that the application does not so comply, he shall so inform the

applicant.

3. Notwithstanding paragraphs one or two of section 18-107, upon a

determination that an application is sufficiently complete for the board

to make a decision on the findings in section 18-111 the commissioner

shall transmit a copy of the application to the commissioner of health,

and shall transmit to the governor, the temporary president of the

senate and the speaker of the assembly, notification that the

application has been filed seeking a certificate pursuant to this

article, and that a board will be convened pursuant to the provisions of

this article.

4. The commissioner shall transmit to each of the municipalities,

agencies and persons required to receive a copy of the application

pursuant to section 18-103 of this article or subdivision three of this

section, a notice stating that the application has been docketed and

stating the time and place of the first meeting of the board, which

shall be not more than forty-five days after the date of such notice.

5. Upon receipt of notice from the commissioner convening a board, the

temporary president of the senate and the speaker of the assembly shall

each designate one person to be appointed by the governor to serve on

the board.

Contents of application. An application for a certificate

filed pursuant to this article shall contain the following information

and materials:

1. A description of the site and of the facility, including maps,

present and proposed development, and geological, seismic, ecological,

biological, aesthetic, social, demographic and related data as

appropriate;

2. A statement of the ownership and other financial interests in the

facility;

3. An estimate of the site acquisition costs, if any, and the source

of the funds therefor;

4. An estimate of the facility construction costs, and the source of

the funds therefor;

5. A statement of the need for the facility, including the sources,

type, and composition of the nuclear waste proposed to be received for

temporary storage at the facility;

6. An assessment of the safety and adequacy of in-state transportation

access to the site for construction, maintenance and operational

purposes, including the risks of accident and contamination of persons

residing in areas adjacent to such transportation access routes;

7. A statement of the anticipated operating life of the facility;

8. An operating plan, including an evaluation of the risks of

radioactive and other contamination of the environment;

9. An estimate of costs of maintaining and operating the facility for

each year of the facility's anticipated operating life, and the source

of the necessary funds for each year;

10. A proposed disposal plan and assured funding mechanism for the

nuclear waste proposed to be stored temporarily at the facility,

including the costs of such disposal and the source of the funds

therefor;

11. A proposed plan for decontamination and decommissioning of the

facility and restoration of the site to unrestricted use, including the

costs thereof and the source of the funds therefor; and

12. A statement of the environmental impact of the proposed action,

including short-term and long-term effects; mitigation measures proposed

to minimize the environmental impact; and any adverse environmental

effects which could not be avoided should the facility be constructed,

maintained and operated.

Action of the board. 1. After being convened, the board

shall commission such studies as it deems necessary, and shall hold a

series of public hearings and meetings. Notice of such studies,

hearings and meetings shall be published in the state register and in at

least one newspaper of general circulation in the county in which such

facility is proposed to be located. Such public hearings shall afford

interested parties a reasonable opportunity to sponsor witnesses and to

question witnesses sponsored by the applicant and others. Such meetings

shall include at least one meeting held at a location within the county

in which the facility is proposed to be located and at a time convenient

to afford the applicant a reasonable opportunity to present an

explanation of the application and to afford local residents and others

a reasonable opportunity to question the applicant and present their

views concerning the same. The public hearings and meetings established

hereunder shall not be considered part of an adjudicatory proceeding, as

defined in subdivision three of section one hundred two of the state

administrative procedure act, or as part of a rule making proceeding

held under subdivision one of section two hundred two of such act.

2. The board shall render a decision upon the record either granting

the certificate, denying it, or granting it upon such terms, conditions,

limitations or modifications as the board may deem appropriate. With its

decision, the board shall issue an opinion stating in full its reasons

for its decision, and an order embodying in full the terms and

conditions of such decision. No order granting a certificate shall be

issued unless the board further finds and determines:

(a) the public need for the facility and the basis thereof;

(b) the nature of the probable environmental impact, including a

specification of the predictable adverse effect on the normal

environment, public health and safety, aesthetics, scenic, historic and

recreational value, forest and parks, air and water quality, fish and

other marine life and wildlife;

(c) that the facility (i) represents the minimum adverse environmental

impact, considering the state of available technology, the nature and

economics of the various alternatives, the interests of the state with

respect to aesthetics, preservation of historic sites, forest and parks,

fish and wildlife, viable agricultural lands, and other pertinent

considerations, (ii) is compatible with public health and safety and

(iii) will not discharge any effluent that will be in contravention of

the standards adopted by the department of environmental conservation,

or in case no classification has been made of the receiving waters

associated with the facility, will not discharge any effluent that will

be unduly injurious to the propagation and protection of fish and

wildlife, the industrial development of the state, and public health and

public enjoyment of the receiving waters;

(d) that the facility is designed to operate in compliance with

applicable laws and regulations concerning, among other matters, the

environment, public health and safety, all of which shall be binding

upon the applicant, except that the board may refuse to apply any local

ordinance, law, resolution or other action or any regulation issued

thereunder or any local standards or requirement which would be

otherwise applicable if it finds that as applied to the proposed

facility such is unreasonably restrictive in view of the existing

technology or the needs of or costs to residents of the state whether

located inside or outside of such municipality. The board shall provide

the municipality an opportunity to present evidence in support of such

ordinance, law, resolution, regulation, or other local action issued

thereunder;

(e) that the facility will be constructed, maintained and operated in

such a way as to adequately safeguard the health and safety of the

state's residents and the quality of its environment, and that the

proposed plans for decontamination and decommissioning of the facility

and for removal of the nuclear waste proposed to be stored therein

provide reasonable assurance that the health and safety of the state's

residents and the quality of its environment will be adequately

protected;

(f) that neither the state nor any of its agencies, public benefit

corporations, municipalities or political subdivisions will bear any

financial liability in connection with the construction, maintenance,

operation, decontamination or decommissioning of the facility, beyond

that stated and disclosed in the application; and

(g) that the facility will be in the public interest.

3. The board shall hold a final meeting open to the public and shall

issue a final decision within eighteen months of the date of its first

meeting on the application.

4. The board shall cause to be kept a stenographic record of each

hearing and meeting had pursuant to this article which, together with

the written report of the results of any study introduced therein, shall

constitute the record of the case.

Judicial review. 1. A judicial proceeding to review a final

decision of the board shall be brought in the appellate division of the

supreme court in the judicial department embracing the county wherein

the facility is proposed to be located. Such proceeding shall be

initiated by the filing of a petition in such court within thirty days

after the issuance of a final decision by the board together with proof

of service of a demand on the board to file with said court a copy of a

written transcript of the record of the proceeding and a copy of the

board's decision and opinion. The board's copy of said transcript,

decision and opinion, shall be available at all reasonable times to all

parties for examination without cost. Upon receipt of such petition and

demand the board shall forthwith deliver to the court a copy of the

record and a copy of the board's decision and opinion. Thereupon, the

court shall have jurisdiction of the proceeding and shall have the power

to grant such relief as it deems just and proper, and to make and enter

an order enforcing, modifying and enforcing as so modified, remanding

for further specific evidence or findings or setting aside in whole or

in part such decision. The appeal shall be heard on the record, without

requirement of reproduction, and upon briefs to the court. The findings

of fact on which such decision is based shall be conclusive if supported

by substantial evidence on the record considered as a whole and matters

of judicial notice set forth in the opinion. The jurisdiction of the

appellate division of the supreme court shall be exclusive and its

judgment and order shall be final, subject to review by the court of

appeals in the same manner and form and with the same effect as provides

for appeals in a special proceeding. All such proceedings shall be heard

and determined by the appellate division of the supreme court and by the

court of appeals as expeditiously as possible and with lawful precedence

over all other matters.

2. The grounds for and scope of review of the court shall be limited

to whether the decision and opinion of the board are:

(a) in conformity with the constitution of the state and the United

States; and

(b) supported by substantial evidence in the record and matters of

judicial notice properly considered and applied in the opinion;

(c) within the board's statutory jurisdiction or authority;

(d) made in accordance with procedures set forth in this article or

established by rule or regulation pursuant to this article;

(e) arbitrary, capricious or an abuse of discretion.

3. Except as herein provided article seventy-eight of the civil

practice law and rules shall apply to appeals taken hereunder.

Co-generation, small hydro and alternate energy production

facilities. 1. For the purposes of this article:

a. The term "co-generation facility" shall include any facility with

an electric generating capacity of up to eighty megawatts, together with

any related facilities located at the same project site, which is fueled

by coal, gas, wood, alcohol, solid wastes, refuse-derived fuel, water or

oil, to the extent any such oil fueled facility was fueled by oil prior

to the effective date of this article and there is no increase in the

amount of oil used at the facility or to the extent oil is used as a

backup fuel for such facility, and which simultaneously or sequentially

produces either electricity or shaft horsepower and useful thermal

energy.

b. The term "alternate energy production facility" shall include any

solar, wind turbine, waste management, resource recovery, refuse-derived

fuel or wood burning facility, together with any related facilities

located at the same project site, with an electric generating capacity

of up to eighty megawatts, which produces electricity, gas or useful

thermal energy.

c. The term "small hydro facility" shall include (i) any hydroelectric

facility of up to eighty megawatts at an existing dam, together with any

related facilities located at the same project site, or (ii) any

hydroelectric facility of up to two and one-half megawatts that requires

the construction of a new dam, together with any related facilities

located at the same project site; provided however, that such term shall

not include any such facility within either the Adirondack Park or the

Catskill Park.

d. The term "related facilities" shall mean any land, work, system,

building, improvement, instrumentality or thing necessary or convenient

to the construction, completion or operation of any co-generation,

alternate energy production or small hydro facility and include also

such transmission or distribution facilities as may be necessary to

conduct electricity, gas or useful thermal energy to users located at or

near a project site.

2. Notwithstanding any other provision of law other than the public

service law, no state department, board, agency, authority or

commission, and no political subdivision, municipality, or any agency

thereof may require any approval, consent, permit, certificate,

statement, report or other condition for the construction or operation

of: (a) a co-generation or alternate energy production facility, when

such facilities are located in any area of the state other than in a

city of one million persons or more or other than within the boundaries

of the Adirondack Park and Catskill Park other than those provided by

otherwise applicable state laws (i) for the protection of employees

engaged in the construction and operation of any such facility or (ii)

for protection of freshwater or tidal wetlands or other than those

necessary to comply with local zoning or building laws or ordinances or

other than those issued by a state agency pursuant to a delegation of

authority pursuant to federal law or other than article eight, article

nineteen, article twenty-seven or title five of article fifteen of the

environmental conservation law; or (b) a small hydro facility, other

than those provided by otherwise applicable state law for the protection

of fresh water wetlands or of employees engaged in the construction and

operation of any such facility or other than those necessary to comply

with local zoning and building laws or ordinances or other than those

issued by a state agency pursuant to a delegation of authority pursuant

to federal law, or other than article eight or title five of article

fifteen of the environmental conservation law; provided, however, that

construction or operation of a small hydro facility shall not be

identified by the commissioner of environmental conservation as an

action or class of actions that is likely to require preparation of an

environmental impact statement pursuant to such article eight.

3. Nothing herein shall be construed to exempt any co-generation,

small hydro or alternate energy production facility from meeting any

applicable requirement of federal law.

4. Any owner or operator of a co-generation, small hydro or alternate

energy production facility constructed and placed in operation on or

after June twenty-sixth, nineteen hundred eighty shall comply with the

rules and regulations of the state energy office with respect to matters

affecting public health and safety provided, however, that such rules or

regulations shall not apply to any such facilities which produce

electricity, gas or useful thermal energy for on-site residential use in

residential dwellings of four or fewer units. The state energy office,

in consultation with the public service commission, shall promulgate

rules and regulations to implement this section by January first,

nineteen hundred eighty-one.

5. The maximum penalty which may be recovered pursuant to section

5-119 of this chapter for a continuing violation of any rule or

regulation promulgated by the office pursuant to subdivision four of

this section shall be ten thousand dollars.