Article 10 ~ New York State Public Service Commission ~ Does not comply with any of BP’s comments

Bp's  Development Director Richard Chandler sent a comment letter to the  Public Service Commission Re: Article 10 . Below are Chandlers comments (in black) The response to Chandlers requests by the Public Service Commission  are in red . 
Read Chandlers letter  to the PSC here


A. Design changes
Wind turbines, as well as collection systems, access roads, transmission lines, project substations, and other ancillary, related, and interconnection equipment, should have the ability to move to a new location (at least as much as 500 feet) without such change being considered a modification or revision, so long as such changes do not have a significant adverse impact on sensitive resources and regardless of the impetus for the change (Siting Board decision, compromise with transmission operator, etc.).
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 PSC action ~  No changes

Discussion
The discretion the issue here does not include discretion to move turbines without siting board approval, although the siting board may consider granting such discretion separately in a certificate condition. The addition of access roads and electrical collector lines to the allowance is a logical and practical extension of what was intended by the original allowance with respect to turbine placement therefore those changes will be made. Changes in substation locations in turbine types may raise substantially different issues and should be considered on a case-by-case basis without a pre – set allowance for changes. The interplay of concurrent siting board and FAA jurisdiction may present a challenge to siting, but limiting flexibility in the siting board arena will not necessarily make matters easier. In large rural, agricultural or forest landscape, 500 foot shift could likely be accommodated provided that it does not significantly increase impacts on sensitive resources or decrease compliance with setbacks and similar requirements. We expect that most such shifts will be motivated by decreasing adverse impacts rather than increasing them.
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B. Local laws
Any override of local laws should be provided by the Siting Board early in the process. Also, once a project has met the standards for project approval, the local community should bear the burden of proof to demonstrate why the more restrictive requirements are appropriate rather than the applicant demonstrating why they are not appropriate. Finally, to the extent that a recently commissioned wind project in New York meets community standards, such projects should be used as a guide by the Siting Board rather than having the Siting Board assume that any local law is reasonable unless refuted by an applicant.

 PSC action ~  No changes

  Discussion
In regard to the request for early determination of the waiver of local laws, article 10 of the proposed regulations do not prohibit the siting board's consideration of applicant requests to override local laws at a point early on in the article 10 process. That being said however, applicant should consider that often the facts necessary for the siting board to determine whether to waive a local law will require the development of a record. Specifically, article 10 expressly recognizes the ability of municipalities to defend their local laws; therefore, it will be likely that some level of evidence in litigation regarding the issue will be necessary prior to the board rendering a determination.
The siding board must find that the facility is designed to operate in compliance with all local substantial requirements, all of which shall be binding upon the applicant, unless the siting board finds a local ordinance to be unreasonably burdensome, the siding board itself applies the ordinance.
The regulations also do not preclude an applicant from presenting whatever additional relevant and material information and desires to present in the application or at the hearings to support an applicants request. Similarly, parties on the other side of the of such issues are also not precluded from providing additional information as to the consideration of local laws adopted after the submission of an application, we'll have to consider that matter on a case-by-case basis. We understand that there is precedent in New York in the zoning contacts that vested rights to construct something without regard to newly enacted local laws do not a cure unless the construction has substantially commenced pursuant to a valid permit.
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C. Study Area
A Study Area extending five miles from all project components is overly burdensome, and may result in work unrelated to the project. The Study Area should be restricted to the project footprint, except for individual requirements where extending beyond the project boundaries would be customary and reasonable, as determined during the stipulation process.


PSC action ~  No changes

Discussion
The issues raised are similar to those already raised in the stakeholder process. The proposed regulations provide sufficient flexibility to address all the issues that were raised in an appropriate manner. Having reviewed the comments we are satisfied and no changes are warranted.
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D. Duration of steps in process
The review of the public involvement plan should proceed in parallel, rather than
Sequentially, with the preliminary scoping statement process. BP Wind Energy has
already been engaged with the local community for years on the Cape Vincent Wind Farm project and such work should not be ignored, discounted, or required to be reproduced. The draft regulations provide the opportunity, for good cause, to eliminate or reduce the number of days between the public involvement plan and the preliminary scoping statement. The same “reduction for good cause” approach should be made available for the preliminary scoping statement Vis a Vis filing an application; this change would have the effect of reducing the required number of days between the filing of these two documents.

  PSC action ~  No changes
Discussion
It is important that public involvement activities begin as early as practicable before development plans are so far it advanced that the developer feels it cannot be flexible or open to beneficial modifications. Moreover, the statute calls for early and often public involvement in the siting process
In any event, most, if not all, major electric generation facilities are planned over a sufficient lead time that the time period set forth in the proposed regulation should not be unnecessarily burdensome.
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E. Business sensitive and confidential information
Applicants should not be required to submit detailed cost and meteorological data; as such information is proprietary and confidential and will not assist the Siting Board in its work.

 PSC action ~  No changes
Discussion
In general we would agree with the comments that the cost information is necessary as an important input in an article 10 proceeding, including for analysis that will inform the necessary statutory findings and determinations. For example such information may be relevant to the required consideration of alternatives, the reasonableness of local laws, or whether the proposed facilities in the public interest. Article 10 provides for public procedure where public involvement is a key component of the review process. In that context, almost all of the application information that rates to be an essential board finding or determination will have to be publicly available.
The language of the proposed regulation requires submittal of an analysis of the data; it does not expressly mandate the raw data itself. If either the raw data or that analysis qualifies for trade secret status, applicants can pursue their rights in that regard to limit public disclosure.
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F. Public comment period
The timeframe for allowing public comment on a proposed stipulation should be defined rather than using the current language (“a reasonable opportunity to submit comments”). We should suggest using 5 days.

 PSC action ~  No changes
Discussion
In keeping with the statutory scheme to act efficiently, the time frames provided are already the minimum necessary to conduct a workable process and there is no room to further expedite the process and have it remain meaningful.


G. Intervenor funds
Time frames for applying for and awarding pre-application Intervenor funds needs to be substantially reduced. We would suggest condensing this process to 30 days.

 PSC action ~  No changes
Discussion
While every attempt will be made to act quickly, the time frames are already minimal and need to be maintained to be realistic.
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H. Alternate locations
For Section 1000.5(l) (2) (viii), and elsewhere in the document where this issue appears, the word “affiliates” should be deleted when looking at alternate locations. Merely being an affiliate does not give the applicant unfettered access to land holdings held by an affiliate.
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 PSC action ~  No changes
Discussion
Having reviewed the comments we are satisfied that in general, no changes are warranted.

I. Locations of facilities
Rather than scanning the entire Study Area, only existing utilities and infrastructure used or impacted by the project should be delineated by the applicant.

PSC action ~  No changes
Discussion
In general we would agree with the comments that the cost information is necessary as an important input in an article 10 proceeding, including for analysis that will inform the necessary statutory findings and determinations. For example such information may be relevant to the required consideration of alternatives, the reasonableness of local laws, or whether the proposed facilities in the public interest. Article 10 provides for public procedure where public involvement is a key component of the review process. In that context, almost all of the application information that rates to be an essential board finding or determination will have to be publicly available.
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J. Design specifications
The interconnection engineering detail requested is not needed to support the evaluation of an Article 10 application and instead should be required only during the compliance period. Similarly, rather than provide manufacturer’s specifications on proposed equipment to be used, it would be more helpful to instead describe parameters of the equipment. This approach would allow flexibility to maintain flexibility during project evolution.
We would suggest deleting Section 1001.6 (c) of the proposed regulations, as it is not clear what information is sought here regarding turbines nor what such information would be used for by the Siting Board.

PSC action = No deletion
Discussion
We are satisfied that the regulation will elicit the appropriate amount of information needed at the application phase regarding setbacks. It is not clear how the wind developer that does not want to provide this information would have the siding board resolves setback issues. We will address setbacks within individual cases or we will have the benefit of a record tailored to the particular location.


K. Electric System Effects
Section 1001.5 should be deleted and instead, any studies and reports for the project stemming from the NYISO interconnection application process for the project should be used to satisfy any statutory requirements for information on the project’s projected impact on the grid.


PSC action = No deletion

Discussion
We expect that the required system reliability impact study from the NYISO will provide the basis for much of what is required by this section, the study itself will not adequately address all the issues as we have laid them out. In addition, we believe wind advocates are incorrect when they asserted that the system reliability impact study will address the root deliverability in the sense that we have used that term in relation to estimating the effects of the proposed facility on omissions and the energy dispatch of existing must – Run resources such as wind, hydroelectric and nuclear facilities.

L. Noise and Vibration
The current language is unclear on how ambient sound data is collected and reported for wind energy facilities. An unduly large emphasis is placed on the assessment of low frequency and tonal noise. The current language proposes assessing compliance at property lines of noise sensitive receptors, which introduces uncertainty from a modeling perspective for a wind farm. We would propose that the Siting Board adopt the language changes proposed by ACENY (attached herein for ease of reference).

 PSC action ~  No changes
Discussion
Despite the number of comments, no significantly different information than that presented in the stakeholder process has been offered. The proposed regulations would require applicants to provide an analysis of whether the facility will produce significant levels of low frequency noise or infra-sound, without specifically requiring the measurement and estimation of C – weighted/DBC sound levels, but do not preclude a case-by-case determination requiring the measurement and estimation of C – weighted/DBC sound levels in a preceding in an appropriate circumstance. Until we have more experience with these issues, we will leave the regulations as originally proposed.




Link here to read the PSC memorandum and resolution