By Electronic Delivery May 1, 2012 Honorable Jaclyn A.

Brilling, Secretary New York State Board on Electric Generation Siting and the Environment Three Empire State Plaza Albany, NY 12212-1350 RE: Case 12-F-0036 - In the Matter of the Rules and Regulations of the Board on Electric Generation Siting and the Environment

Dear Secretary Brilling, Enclosed for filing are the comments of the Alliance for Clean Energy New York on the proposed regulations to implement provisions of Article 10 of the Public Service Law. Sincerely,

Carol E. Murphy, Executive Director Alliance for Clean Energy New York, Inc. Encl.

New York State Public Service Commission Case 12-F-0036

In the Matter of the Rules and Regulations of the Board on Electric Generation Siting and the Environment

COMMENTS OF THE ALLIANCE FOR CLEAN ENERGY NEW YORK ON THE PROPOSED IMPLEMENTING REGULATIONS FOR ARTICLE 10 I. INTRODUCTION The Department of Pubic Service officially published proposed implementing regulations for the siting of power plants under the newly enacted Article 10 in the April 11, 2012 State Register and instituted this proceeding to consider public comment and other Siting Board matters. The Alliance for Clean Energy New York (ACE NY) respectfully submits these comments for consideration. ACE NY is a nonprofit organization whose mission is to promote the use of clean electricity technologies and energy efficiency in New York State in order to increase energy diversity and security, boost economic development, improve public health, and reduce air pollution. Members of ACE NY include nonprofit environmental, public health and consumer advocacy organizations, educational institutions, and private companies that develop, produce and sell clean energy and clean energy technologies, as well as energy efficiency services, in New York. The proposed implementing regulations issued by the Department of Public Service (DPS) are an improvement over the informal draft, and we thank DPS staff for providing an early opportunity to provide comments and having already made a number of important and beneficial improvements. However, we still find several serious shortcomings with the regulations that must be remedied in order to ensure Article 10 provides New York with the ability to upgrade and transform its energy infrastructure to meet our energy security and

environmental needs. The regulations need to ensure that applicants provide sufficient information to all interested parties and the Siting Board while also enabling project development in a timely manner. While ACE NY continues to believe that a number of the exhibits include overly detailed, cumbersome and unnecessary requirements, we will focus on a few broad issues of particular significance, which if not modified, make it likely that our cleanest, most advanced new energy technologies will face insurmountable permitting barriers and the state will lose its opportunity to continue to be a leader in the growing clean energy economy. Article 10 is not in place for a year or two, but will be the single most important law governing the development of our energy infrastructure for many, many years. New York needs to get it right in a manner that facilitates clean energy project development; the regulations must be broad enough to encompass changes in technology, not only for generation itself but for the environmental studies that are required to evaluate those technologies. Overly detailed requirements will unsustainably increase the burden on applicants, constrain the decision-making ability of the Siting Board, and cause the state to lose investment and lose ground in meeting clean energy and economic development goals and the building of a vibrant clean energy economy. II. NECESSARY REVISIONS A. Criteria for Override of Local Laws An essential component of Article 10 is the ability of a developer to request that the Siting Board rule that a local law is unduly burdensome, which allows the developer to proceed in compliance with requirements set by Article 10 itself and the Board rather than the locality, for the particular requirement in question. ACE NY appreciates the need to consider the concerns of local communities and include opportunities for their participation

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in the siting process, but believes it is in the best interest of all New Yorkers for the Board to retain its statutory discretion on this matter rather than allow overly restrictive implementing regulations to determine the factors that the Board can consider. The newly enacted statute provides an established standard for overriding local laws that is very similar to that which was in effect under the previous Article X legislation and for which Siting Board precedent exists. Under Article 10, the Siting Board may elect not to apply any local law that is unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers. However, the proposed regulations interpret that standard using narrower language that changes its nature and limits the Boards statutory authority and discretion. Article 10 legislation establishes standards for project approval; once those standards are met there should be a low threshold for showing that local laws, which impose additional requirements, are unreasonably burdensome and the burden should fall on the community to show the more restrictive requirements are well founded (for example, a community with air quality violations could have grounds on which to argue against a new emitting power plant). The law allows an applicant to argue that a local law is unduly burdensome and also allows the Board broad authority to grant the request. However, the proposed regulations adopt a much narrower approach and flip the burden of proof such that local standards, as opposed to the law of Article 10, are the assumed threshold for compliance. Even if the proposed project meets the standards of Article 10, the regulations as proposed would only allow for an override if the applicant could show it could not make project changes for narrowly drawn reasons. The proposed regulations contain three different tests in order to qualify for a local law override, and none are in the law itself. It is the Siting Boards responsibility to permit

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projects that meet the needs of the state of New York. In doing so, it must be prepared to work for the benefit of the state as a whole. The law provides the Board with the authority to do so while considering the needs and desires of local communities. However, the decision is ultimately for the Board to make and its statutory authority should not be undermined and predetermined by limited and unfounded regulations that include tests not identified in the law. In addition, New York has newer operating generation where local laws have accommodated these plants while meeting community standards; the Board should use these as a guideline and the implementing regulations, therefore, should not preempt the Boards authority to do so by automatically presuming any local law is reasonable unless shown by the applicant to be otherwise. Finally, the regulations should ensure that applicants need only consider local laws in existence at the time of application. Local governments should not be allowed to enact or amend laws as obstacles to development after an application is filed. B. Modifications versus Revisions ACE NY appreciates the attempt of DPS staff in responding to initial comments on the informal draft regarding the need to move project components during review and development. However, we believe the concern was misunderstood as only applying to wind turbines themselves. The current draft allows wind turbines to be moved within 500 feet of their originally identified location providing that the change does not result in a significant adverse impact on sensitive resources. This exemption from the classification of revision must be extended to other project components such as roads and electrical collection lines as well. We also would add that there is no magic in 500 feet. We suggest that the appropriate standard should have changes in project components that do not result in significant adverse impact or significant changes to sensitive resources deemed modifications

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and not revisions. As currently written, the regulations provide too much opportunity for minor changes in a project to be labeled revisions, which could easily lead to significant delays and additional expenses with no added benefits. Furthermore, changes in project components that are a result of Siting Board decisions on requests for the override of unduly burdensome local laws should not automatically be considered revisions, but should be modifications if they do not adversely impact sensitive resources. The same should hold for changes in the project that are a result of negotiations and compliance with the interconnecting utility and the NYISO. In other words, the regulations should recognize and accommodate the fact that project components can and will change as the development and permitting and approval processes take place. Some of these changes, in fact, are very likely to be undertaken to improve or remedy potential impacts and it is nonsensical to deem improvements as revisions in need of further study and additional intervenor funds. The determination of revision or modification should be based on the potential impacts of the change regardless of the nature of the change. In addition, the intervenor funding payment required for revisions must be revised. At present, if a project change is considered a revision and subject to a new review, the applicant must pay $75,000 to the intervenor fund regardless of the nature of the revision or size of the project. For projects up to the size of 75 MW, this would mean that these projects would need to pay higher intervenor funds for revisions ($75,000) than for the application itself ($1,000/MW). The draft regulations create this lack of parity; it is not contained in the law itself, which allows the Siting Board to impose an intervenor fund payment up to $75,000.

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C. Sound Studies The requirements in Exhibit 19 have improved since the informal draft and we appreciate staffs willingness to tackle this technical issue. We have consulted with a nationally recognized sound expert and others with experience on this issue and have substantive comments described here and contained in the attached redline of the proposed regulations. Consistent with the intent of the previous draft the proposed changes are to ensure that the studies are conducted in a technically appropriate manner that allows room for changes over time without the need to amend the regulations. It is still clear in our revisions that applicants must provide sufficient information for the Board to make a reasoned and informed evaluation. The most significant and important changes are on the monitoring and modeling requirements in sections (b) and (f). We also continue to have concerns about the summer monitoring requirements and the construction noise requirements. In particular, we would suggest that redundant and potentially unnecessary studies hamper development by needlessly increasing costs to developers (in a state where those costs are already quite high). The changes to sections (b) and (f) are in keeping with the staffs intent, but more clearly state how sound levels are to be documented consistent with standard professional practices. For example, the assessment of pure tones and amplitude modulation for construction activities would be a unique and burdensome requirement given current assessment techniques developed by the US DOTs Federal Highway Administration and Federal Transit Administration. Construction activities are also typically a daytime source of noise and of limited duration.

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Another continuing concern is the requirement for summer monitoring. Thorough ambient sound assessments cost tens of thousands of dollars, and should not be required unless they will yield useful and actionable information. If developers are assessing potential sound levels based on an evaluation of existing levels during the winter, when natural sounds from wind (i.e., blowing leaves), insects or birds are minimal, the filing should not be deemed incomplete. Mandatory summer monitoring should only be required if there is a specific and identified concern that warrants such monitoring. D. Energy Market and Electric System Information The regulations should not pose a conflict with the work or timelines of receiving NYISO approvals. Neither should applicants be required to provide unnecessary information or to conduct duplicative studies. Article 10 applicants should be allowed to meet statutory requirements for information on the proposed project impact on the electric system by providing reports and other information from the NYISO and the NYISO study process. For example, capacity resource deliverability studies are performed by the NYISO as part of the Facilities Study Class Year process and are unnecessary, costly, and of limited utility if conducted separately within the Article 10 context. The studies currently required in the proposed regulations (e.g. Exhibits 8, as well as Exhibit 6 (d) and Exhibit 14) require proprietary information and energy market projections and are inappropriate. Further, the requirements and provision of data relating to a project's projected revenues and other proprietary financial information are not required by the statute and are not in keeping with how the state has regulated competitive wholesale generators in the deregulated market.

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E. Timing Issues i. PIP and Pre-Application Scope: The proposed regulations require the submission of a public involvement program (PIP) for departmental review 150 days prior to submission of a preliminary scoping document. This approval process, in essence, unnecessarily extends the pre-application time period by five months. In fact, partly due to the five-month time frame as well as the addition of a 90-day mandatory time frame for the preliminary scoping process, it is likely that it will be more than a year before an application is deemed complete. This adds significant time before the twelve-month time period for review begins and means that it will likely take two years or more to get though the process. While we appreciate the provision that applicants can request a shorter time frame for good cause, filing the motion and receiving approval would still need to be done prior to the 90 days in order to be in compliance if the motion is denied. We believe the review of the public involvement plan should proceed in parallel with the preliminary scoping statement process. This extended timeline for a PIP is especially unnecessary and burdensome for applicants that will have begun project development prior to enactment of these Article 10 regulations. These applicants will have already engaged in public outreach (which occurs during project development with or without Article 10). A five-month lead-time for this process is completely unnecessary and unreasonable. The caveat that an applicant can have a shorter time period for submission (less than 150 days prior to submission of the preliminary scoping statement) for good cause for a PIP, which is included in the proposed regulations, also should be

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provided for the preliminary scoping statement, which as proposed is required 90 days prior to submission of an application. ii. New Construction in Project Area: Another important timing issue relates to the structures and other landmarks that an applicant must consider in its application and related studies. The Siting Board should consider impacts only to those resources and receptors that exist at the date of the Article 10 application. The process should not allow moving targets or illegitimate construction applications to impede progress and timely consideration of an Article 10 application. F. Quasi-judicial Review and Information Requests We note below that the provisions for quasi-judicial hearings are so broad as to be meaningless, thereby providing project opponents too much latitude to contest application submissions. Also identified below are a number of the information requirements and study parameters in the proposed regulations that are overly burdensome while contributing little to the ability of communities and the Siting Board to review the project and its impacts. They also could serve to compromise the competitiveness of applicants, which could result in decreased interest in participating in the New York market. A final general caveat applies to the information requests that require detailed engineering and manufacturer specifications. These should be rewritten to require general information but provide for details to be submitted in compliance filing since this information will change during project development and approval. i. Quasi-judicial Review: Under the proposed regulations, a party can force a quasijudicial hearing by showing that an issue or evidence is material and relevant. The more rigorous and broadly used standard of substantive and significant should be

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used instead because it is generally referenced as the trigger for quasi-judicial hearings for the type of issues that will be adjudicated in these proceedings. ii. Five-mile Radius Study Area: The proposed regulations require a five-mile study radius around each of the project components. This radius is quite large, especially for a project such as a wind plant where projects components can be spread out over a large area in a rural landscape, particularly in areas that will not be subject to any potential impacts of the generating facility. We propose instead that language be included allowing a smaller radius extending out from the project as a whole, or that the project study area can be negotiated to less than a five-mile radius during the preapplication scoping process. iii. Cost and Meteorological Data: Meteorological data and capital cost information are highly confidential and do not appear necessary for the Boards decision making. This is extraneous data that companies will not feel comfortable providing since it could undermine their competitive position. This type of information is not required by statute and has not been required of facilities under lightened regulation in the restructured, competitive wholesale markets. These submission requirements in Exhibits 8 and 14 should be deleted. iv. Potentially Irrelevant Information and Inconsistencies: A number of information requests and studies may not be appropriate for all generation types and the regulations should ensure that these are only required when necessary (i.e., there should be an option to argue they are unnecessary and not have a significant delay in receiving notice of a complete application). For example, where the regulations require exploration and findings on the depth to bedrock, if there is uniform

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topographic/relief mapping and the project is a wind project with turbines located on a single landform, then a representative sample of locations with the depth to bedrock should suffice. Another example is the requirement for data on private wells, which some generation types will not impact. A final example of where language could be improved is the reference under wetlands that uses the term hydrologically or ecologically influenced by. The Army Corps of Engineers permitting language uses hydrologically connected to. III. CONCLUSION To reiterate, we appreciate the work of staff to date on these extensive regulations while also finding that some additional revisions are needed. As New York moves forward with its clean energy and economic development programs, including Governor Cuomos recent call for a new Energy Highway, we must stress that Article 10 will play a vital role in our economy and must ensure that new, clean and innovative technologies can be approved in a timely manner allowing companies to invest in our state. Respectfully Submitted,

Carol E. Murphy, Executive Director Alliance for Clean Energy New York, Inc. Albany, NY May 1, 2012

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1001.19 Exhibit 19: Noise and Vibration

Exhibit 19 shall contain: A study of the noise impacts of the construction and operation of the facility, related facilities and ancillary equipment. The name and qualifications to perform such analyses of the preparer of the study shall be stated. If the results of the study are certified in any manner by a member of a relevant professional society, the details of such certification shall be stated. If any noise assessment methodology standards are applied in the preparation of the study, an identification and description of such standards shall be stated. The study shall include: (a) A map of the study area showing the location of sensitive sound receptors in relation to the facility, related facilities and ancillary equipment (including any related substations). The sensitive sound receptors shown shall include residences, outdoor public facilities and areas, hospitals, schools and other noise-sensitive receptors. (b) An evaluation of ambient pre-construction baseline noise conditions, including A-weighted/dBA sound levels, prominent discrete (pure) tones, at representative potentially impacted noise receptors, using actual measurement data recorded in winter (and, if necessary, summer) during day and night as a function of time and frequency using a suitable and suitably calibrated sound level meter (SLM) and octave band frequency spectrum analyzer, or similar equipment. The ambient pre-construction baseline sound level should be filtered to exclude seasonal and intermittent noise. (c) An evaluation of future noise levels during construction of the facility and related facilities including predicted A-weighted/dBA sound levels at potentially impacted and representative noise receptors, using computer noise modeling. (d) An estimate of the noise level to be produced by operation of the facility, related facilities and ancillary equipment g accounting for wind-induced background noise and stable atmospheric conditions, as appropriate. The analysis shall not include transient sound attenuation factors, such as those that may result from variations in weather or temperature. (e) An evaluation of future noise levels during operation of the facility, related facilities and ancillary equipment including predicted A-weighted/dBA sound levels, prominent discrete (pure) tones, and amplitude modulated sound, at potentially impacted and representative noise receptors, using computer noise modeling, and an analysis of whether the facility will produce significant levels of low frequency noise or infrasound. (f) An assessment in tabular or graphical form of the A-weighted/dBA sound levels indicated by measurements and/or appropriate noise modeling at the representative external property boundary lines of the facility (including related and ancillary equipment facilities) and at

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the representative nearest and average noise receptors, to assess the following: (1) Description of existing acoustical environment: (i) The range in existing sound levels shall be characterized for the following metrics: Leq, L10, L50 and L90 for daytime (7 am 10 pm) and nighttime (10 pm 7 am) periods. (a) The Leq, or equivalent sound pressure level, is the energy average sound pressure level over a specified time period. The Leq metric is the sound pressure level of a steady or continuous unvarying sound that has the same (equivalent) total energy as the time varying sound over the interval of interest. (b) The L10, L50 and L90, or Lxx are the sound levels that are exceeded xx percent of the sampling interval. The L90 sound pressure level represents the sound level exceeded 90 percent of the sampling interval (54 minutes of a 60 minute period, consequently the L90 represents the quietest 6 minutes of an hour interval) and therefore filters out loud, intermittent or transient sounds. The L90 is often referred to as the residual or background sound pressure level. The L50 is the sound pressure level exceeded 50 percent of the sampling interval and is the same as the median sound pressure level. The L10 is the sound pressure level exceeded 10 percent of the sampling interval and represents the louder events (the loudest 6 minutes of a 60 minute interval). The variation between the various metrics (Leq, L10, L50 and L90) provides an indication of the variability of the acoustical environment. All metrics will be identical if the sound level is steady and unvarying. (ii) Sound monitoring interval and study duration shall be sufficient to appropriately characterize the approximate range in existing levels in the study area. When continuous data logging sound level meters are utilized, interval duration shall not exceed 1 hour unless agreed to otherwise. In most instances, the sound survey duration at representative noise receptors would not be less than 24 hours. (iii) Sound monitoring shall be conducted during appropriate meteorological conditions consistent with the characteristic of the energy facility. Seasonal sources of ambient sound, such as insects, shall be assessed and filtered when necessary. For wind projects which assess how ambient sound levels vary with wind speed, the sound monitoring period shall address seasonal characteristics, such as winter or

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leaf-off conditions, to ensure the existing conditions have been documented. (2) Description of project related sound emissions and potential changes to the existing acoustical environment: (i) Describe the potential sound emissions and how such sound emissions may vary under typical and worst case operating conditions. (ii) Evaluate future sound level resulting from operation of the project and discuss potential changes to existing acoustical environment described in (1) above.

Valerie Strauss! 4/28/12 8:29 PM Deleted: (1) Daytime ambient noise level - a single value of sound level equivalent to the level of sound exceeded for 90% of the time during the daytime hours (7 am - 10 pm) of a year (L90).
(2) Summer nightime ambient noise level - a single value of sound level equivalent to the level of sound exceeded for 90% of the time during the nightime hours (10 pm - 7 am) during the summer (L90). (3) Winter nightime ambient noise level - a single value of sound level equivalent to the level of sound exceeded for 90% of the time during the nightime hours (10 pm - 7 am) during the winter (L90). (4) Worst case future noise level during the daytime period - the daytime ambient noise level (L90), plus the noise level from the proposed new sources modeled as a single value of sound level equivalent to the level of sound exceeded for 10% of the time by such sources under normal operating conditions by such sources in a year (L10). (5) Worst case future noise level during the summer nightime period - the summer nightime ambient noise level (L90), plus the noise level from the proposed new sources modeled as a single value of sound level equivalent to the level of sound exceeded for 10% of the time by such sources under normal operating conditions by such sources in a year (L10). (6) Worst case future noise level during the winter nightime period - the winter nightime ambient noise level (L90), plus the noise level from the proposed new sources modeled as a single value of sound level equivalent to the [1] ... level of sound exceeded for 10% of the time by such sources under normal operating conditions by such sources in a year (L10).

(g) A description of the noise standards applicable to the facility, including any local requirements, and noise design goals for the facility at representative potentially impacted noise receptors, including residences, outdoor public facilities and areas, hospitals, schools, other noise-sensitive receptors, and at representative external property boundary lines of the facility and related facilities and ancillary equipment sites. (h) A tabular comparison of the noise standards applicable to the facility, including any local requirements, and noise design goals for the facility, and the degree of compliance indicated by computer noise modeling at the representative external property boundary lines of the facility and related facilities and ancillary equipment sites, and at the representative nearest and average noise receptors. (i) An identification and evaluation of reasonable noise abatement measures for construction activities, including a description of a complaint-handling procedure that shall be provided during the construction period. (j) An identification and evaluation of reasonable noise abatement measures for the final design and operation of the facility including the use of alternative technologies, alternative designs, and alternative facility arrangements. (k) An evaluation of the following potential community noise impacts: hearing damage (as addressed by applicable Occupational Safety and Health Administration standards); indoor and outdoor speech interference; interference in the use of outdoor public facilities and areas; community complaint potential; the potential for structural damage; and the potential for interference with technological, industrial or medical activities that are sensitive to vibration or infrasound.

(l) A description of post-construction noise evaluation studies that shall be performed to establish conformance with operational noise design goals. (m) An identification of practicable post-construction operational controls and other mitigation measures that will be available to address reasonable complaints, including a description of a complainthandling procedure that shall be provided during periods of operation. (n) The computer noise modeling values used for the major noiseproducing components of the facility shall fairly match the unique operational noise characteristics of the particular equipment models and configurations proposed for the facility. The software input parameters, assumptions, and associated data used for the computer modeling shall be provided.