15-F-0122 Sokolow Post Hearing Brief

BEFORE THE STATE OF NEW YORK

BOARD ON ELECTRIC GENERATION

SITING AND THE ENVIRONMENT

In the Matter of

Baron Wind LLC

Case 15-F-0122

INITIAL POST-HEARING BRIEF

Alice Sokolow

Case #15-F-0122

also for Parties:

Thomas Flansburg

Mary Ann McManus

Bert Candee

Virginia Gullam

Dated: 4/15/2019

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TABLE OF CONTENTS

I Introduction 2

II Facility 2

III Legal Background 2-3

IV. Issues- Fremont Wind Law 3

V. Nature of Env Impact-Avian & Bat 5

VI. Nature of Env Impact –Safety

Exh1001.6 11

Exh 1001.15 29

VII Nature of Env Viewshed & Flicker 54

VIII Not Addressed 70

IX Conclusions 70

I Introduction

We are five individual parties with grave concerns over conditions and completeness of Baron Winds Applications for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 to Construct a Wind Energy Facility.

II. Facility Description

Baron Winds LLC (the Applicant) is proposing to construct the Baron Winds Project, a wind energy generation facility and associated infrastructure (the Facility) in the Towns of Cohocton, Dansville, Fremont, and Wayland in Steuben County, New York (See Figure 1).The Facility will consist of up to 69 utility scale wind turbines with a total generating capacity of up to 242 Megawatts (MW). Other proposed components will include: access roads, buried collection lines, up to four permanent meteorological (met) towers, one operations and maintenance (O&M) building, up to two temporary construction staging/laydown areas, and a collection/point of interconnection.

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III. Legal Background

In rendering a decision on an application submitted pursuant to Article 10 of the

Public Service Law, the Siting Board must consider the directives set forth in Public

Officers Law Section 168. Public Service Law Section 168 (2) dictates that the board shall not grant a certificate or amendment thereof for the construction or operation of a facility, either as proposed or as modified by the board, without making explicit findings regarding the nature of the probable environmental impacts of the construction and operation of the facility. Public Service Law Section 168(3) further dictates that the board may not grant a certificate for the construction or operation of a major electric generating facility, either as proposed or as modified by the board, unless the board determines that: (a) the facility is a beneficial addition to or substitution for the electric generation capacity of the state; (b) the construction and operation of the facility will serve the public interest; (c) the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable;

(d) if the board finds that the facility results in or contributes to a significant and adverse disproportionate environmental impact in the community in which the facility would be located, the applicant will avoid, offset or minimize the impacts caused by the facility upon the local community for the duration that the certificate is issued to the maximum extent practicable using verifiable measures; and (e) the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder concerning, among other matters, the environment, public health and safety, all of which shall be binding upon the applicant, except that the board may elect not to apply, in whole or in part.

The Applicant seeking the Certificate in this case has the burden of proof to

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15-F-0122 Sokolow Post Hearing Brief demonstrate to the Siting Board that they have met all the requirements necessary for the granting of the Certificate.

Authority for the prescribed review and issuance of a Certificate is invested in the Siting Board which, inter alia, must make “explicit findings regarding the nature of the probable environmental impacts of the construction and operation,” prior to issuing a Certificate (PSL § 168(2)). More specifically, the

Siting Board must determine that any “adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable” (PSL §

168(3)).

IV. Issue Briefs- Fremont Wind Law

The Fremont Wind Law should be honored. A new Applicant should honor the previous Applicant’s GOOD WILL.

APPLICANT’s Promise

1. Exhibit 2-page 7

Although the northern portion of the Facility Area overlays part of one primary aquifer, the nearest sole-source aquifer is located over 44 miles from the Facility Area. The Applicant reached out to NYSDEC for information about groundwater wells in the Facility Area; the Applicant also surveyed residences/businesses located within a 2,000-foot radius of the Facility to obtain information about existing groundwater wells. Based on the available data and the planned setback distances from residential structures, it is unlikely that construction of the proposed Facility will impact residential water well quality. To ensure against such impacts, the Applicant will conduct pre-and post construction baseline testing to identify potential impacts to groundwater wells; any impacts identified will be mitigated (see Exhibit 23(b)(5)).

2. Exhibit 2-page 15

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As currently proposed, the Facility will comply with all applicable local laws and regulations and does not require any waivers from the Siting Board.

3. Minutes of Fremont-NONEMBER 13, 2018

Leah Grossman “We will meet what is in the Wind Law.” REPEATED THREE TIMES to the Fremont Board, public and Virginia Gullam after her question on building permits. www.youtube.com/watch?v=8xke3Xls50o

The APPLICANT’s REQUEST

Chip Readling’s Testimony

* WELLS

With respect to well monitoring, we agree with the Staff Policy Panel that the Siting Board should grant the waiver from Town of Fremont Wind Energy Law § 8.10(a)(20) relating to well testing as implemented by the NYSDPS’/Applicant’s proposed Certificate Condition 42. See Exhibit (SPP-2 and CP-3).

* HOURS OF OPERATION

Readling Testimony-Requesting Siting Board to grant waivers discussed below, the Siting Board should grant the waiver from Town of Fremont Wind Energy Law § 8.10(a)(14) relating to construction scheduling. In particular, construction should be allowed on Saturdays; in addition, it also should be allowed on Sundays under limited circumstances. This waiver * Consistent with my response to the Direct Testimony of Witness Andrew Davis will be implemented pursuant to the Applicant’s Proposed Certificate Condition 77. See Exhibit __32__ (CRR-3)

The Fremont Wind Law should be honored. A new Applicant should honor the previous Applicant’s ACCEPTIBLE PARAMETERS AND GOOD WILL.

V. The Nature of the Environmental Impacts- Wildlife

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Exhibit 22

1. Law

(j) for proposed wind-powered facilities, the expected environmental impacts of the facility on avian and bat species based on pre-construction studies conducted pursuant to paragraph (c) of subdivision one of section one hundred sixty-three of this article; and a proposed plan to avoid or, where unavoidable, minimize and mitigate any such impacts during construction and operation of the facility based on existing information and results of post-construction monitoring proposed in the plan;

2. PROJECT AREA and SURVEYS-

2013-2014

* EverPower Wind Holdings, Inc. (EverPower) is considering the construction of the Baron Wind Project (Project) located in Steuben County, New York. The proposed Project would include wind turbines located west of Interstate 390 and north and south of Route 85 in the towns of Canisteo, Hornell, and Cohocton (Figure 1).

* Surveys conducted constitute EverPower’s good faith efforts to follow USFWS’s voluntary Land-based Wind Energy Guidelines (2012) and the NYSDEC Guidelines and include:

bird migration surveys (fall 2013) habitat assessment (fall 2013) breeding bird surveys (spring 2015) acoustic bat surveys (summer/fall 2015) eagle use point count surveys (2013–2014)

*Fremont was not considered part of the project until MID 2016.

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*The APPLICANTs (both Everpower and INNOGY) were NOT AWARE of the GOLDEN NEMATODE located in FREMONT until the OCTOBER 2018 Hearing.

*WIND TURBINES were chosen just prior to the OCTOBER HEARING. Plenty of time to select turbines/curtailment to match NYDEC Guidance.

3. BATS:

*MIGRATION SURVEY WAS NOT REPEATED FOR BATS for Cohocton and Howard.

Bat/Bird Study 2013/2014

As stated in the Work Plan, because bat activity levels during spring and fall migration periods already have been studied at the proximal Cohocton and Dutch Hill Wind Project and the Howard Wind Project, surveys were not repeated for the full period when bats are known to be active (spring, summer, and fall). Bat fatalities have peaked at other operational wind projects in the East during the summer residency and fall swarming periods. Consequently, Stantec conducted passive acoustic echolocation monitoring surveys at the Project from 1 June to 30 September 2015 to obtain site specific data on species composition and activity levels of bats during these periods.

*Cumulative BAT Studies were passive because Cohocton and Howard were already completed. The rate for bat collision for Cohocton/Dutch Hill were quite high as per the NYDEC and should have elicited more thorough studies instead of less. AND they knew already in 2012 what amount of curtailment would remediate the situation.

*Without re measuring bat data, what was the statistical significance and relevance of arguing a fraction of an WNLB between Stantec and NYDEC? What was the confidence level utilized to rely upon other proximal wind farm data instead of measuring data from the project area especially when it involved other localized areas (Hornellsville, Hartsville and Fremont).

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4. EAGLES:

*Adam Gravel’s Eagle REBUTTAL

There were 51 nesting pairs in 2000 and 522 nesting pairs in 2018; 18.2 MW in 2000 and1900 MW in 2018. Deduction: “With bald eagle nesting territories in NY increasing concurrent with wind energy, it appears that nesting success and productivity have been unaffected by wind energy on a statewide scale.”

These are independent statements; not necessarily related. There was no statistical evaluation nor confidence level as per cross examination.

*No Fremont

Stantec’s Adam Gravel-“Bald eagle occurrences observed in the Project area were documented during pre-construction bird surveys that Stantec conducted on behalf of the Applicant.” The surveys were 2013/2014 when FREMONT was not part of the project.

*The NYDEC and reported public sighting (prior to FREMONT 2013/2014) were the basis for:

The fact that there are no eagle nests within 4 miles of the nearest turbine location, use of the Project as assessed during a full year of point count surveys was relatively low, and the majority of behaviors observed were not behaviors that are thought to be associated with greater collision risk at wind projects (courtship, territorial displays, or foraging), risk to eagles at the Project is expected to be low.

*USFWS EAGLE COLLISION RISK MODEL NOT RUN:

Though the USFWS’s eagle collision risk model was not run for the eagle data collected at the Project in 2013–2014, based on the presence of one nest within 10 miles of the Project and the number of exposure minutes observed, the Project likely would fall into Category 2 (high to moderate risk to eagles/opportunity to mitigate impacts).

*What is the statistical relevance/confidence level of patching in data from 2016 for eagles and applying it to data collected in 2013/2014?

*Eagle vision is 20/4. Eagles have more cones than rods therefore prefer daylight; see poorly at night. Fledglings have poor vision during daylight for the

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15-F-0122 Sokolow Post Hearing Brief first 4-5 years when they finally reach their maximum “eagle eyes”. Close cousin, European Wedge tail sea eagle, have been more thoroughly studied. Simply stated, if they cannot see the blades, then they cannot react.

*Cumulative impact should include all four existing projects as well as the three new projects under Article 10. Impact should include agricultural bat impact. Exh AS-

A “HARD LOOK” was not taken:

1. The total project area was not surveyed at the same time. The studies are not recent(2013-2015). Some were patched in later (2016). Some areas were skipped intentionally (Cohocton and Howard) as well as omitted as not participating (Fremont). Other areas were surveyed and not part of the project (Hartsville and Hornellsville).

2. For bats, the State averages were used knowing that Cohocton has a previous high rate of collision. Statistical analysis with confidence levels should have been required for NLEB. The modeling techniques should have been agreed upon BEFORE acquisition of data; Not argued in Rebuttal.

3. For eagles, the omission of parts of the total project area meant that Fremont eagle sightings were missed. Public reports were easily documented once the importance was known.

4. Migration has the same flaws temporally and spatially.

5. The NYDEC and USFWS should have been utilized to evaluate the risk from the prospective of two modeling techniques. USFWS model using Bayesian analysis for level of risk for nesting and migratory, evaluation of sweep zone, regional habitat suitability, and impact on the length of this project along with Castleman’s informed curtailment.

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The CERTIFICATE Findings-

The Siting Board should require NEW temporal and spatial pre- construction studies to be completed for all seasonal and migratory impacts using two models for Eagles (NYDEC and USFWS) and a pre accepted modeling for bats with an independent professional’s statistical analysis for bat collision risk and an acceptable confidence levels for NLEB. The population of NLEB is so small that the statistical analysis is absolutely required to gain any REAL information.

And there should be a cumulative impact analysis for multiple projects in relation to the area, the region and state as well as agriculture impacts and disease impacts.

The curtailment should have little economic impact because the turbines were chosen very late in the project application and the NYDEC’s mitigation for curtailment for bat survival was known since 2012 especially for the Cohocton area (Exhibit ).

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VI. The Nature of Environmental Impacts-Public Health and Safety

A. BARON WINDS COMPLIANCE WITH 1001.6

1. Regulation: 1001.6 Exhibit 6: Wind Power Facilities

If the Applicant’s proposal is for a wind power facility, Exhibit 6 shall contain:

A statement of all setback requirements and/or setback recommendations for turbines from roads, occupied structures (dwellings, commercial, industrial, and institutional), barns and unoccupied structures, areas of public gathering, and electric transmission lines, explaining the rationale for the setback distances for each type, as required or recommended by: the manufacturer's specifications; the Applicant; and any local ordinance or law.

A detailed explanation of the degree to which the Applicant has accommodated in the facility layout the required and/or recommended turbine setbacks required to be stated in subdivision (a) of this section.

Documentation regarding the status and results of third-party review and certification (type and project) of wind turbines proposed for construction and operation at the electric plant.

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Wind meteorological analyses demonstrating adequate wind conditions supporting the estimated capacity factor for the facility.

2. The rationale for the setback distances for each type of location

Baron Winds definition of setback distance – a. A setback is the distance which a wind turbine, building or other structure must be set from a road, residence, property line or other location appropriate for a setback. b. Baron Winds continues with fall prevention and fall down distance are based on turbine height…..500 feet. c. DISCOVERY EV H 175 Baron Winds Response:

Response: There have been no changes to the setback distances in Exhibit 6. Although the turbine models selected for the Project were not among those identified in Exhibit 6, the height of models finally selected for the Project do not exceed those for the models listed in the Exhibit. As a result, the setbacks for the Project have not changed based on selection of the final turbine models.

AS-30 In determining your safe setbacks, what studies, modeling, or any other information was utilized?

Response: As discussed in Exhibit 6(a), wind turbine setbacks are designed to prevent turbines from being erected in areas where

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15-F-0122 Sokolow Post Hearing Brief sensitive resources would be located within a “fall zone” or “fall-down distance,” which is the area directly under a wind turbine that could be subject to falling debris in the unlikely event of a blade failure, tower collapse, icing or other mechanical problems. In establishing the setbacks for the Project, the Applicant considered the turbine setback requirements established by the Towns of Cohocton, Dansville, Fremont and Wayland as well as its past experience in developing wind energy projects. The final setbacks meet or exceed the requirements of the applicable local laws or Baron Winds’ own recommended standards, whichever are stricter; if a mandatory setback requirement cannot be met, the Applicant has or will obtain the consent and waiver from the affected property owner to allow a smaller setback. No specific studies or modeling were conducted to determine the setbacks as none was required or necessary.

3. The Manufacturer’s SETBACK SPECIFICATION- a. THE APPLICANT- 1001.6

The Applicant is not aware of any manufacturer’s setback specifications for any of the turbine models under consideration for the Facility. Manufacturer’s siting guidelines are typically focused on technical issues such as the available wind resource at a given site

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(i.e., on selecting the appropriate technology/ turbine model) rather than on land use/zoning issues such as setbacks. b. EXAMPLES OF MANUFACTURER’S SETBACK SPECIFICATIONS

(1) Nordex Safety Manual Rev 4

9.3Fire

DANGER FALLING TURBINE PARTS

In case of a fire in the nacelle or on the rotor, parts may fall off the wind turbine. In case of a fire, nobody is permitted within a radius of 500 m from the turbine.

(2)Vestas Manufacturer’s Technical Manual

Vestas Safety Regulations for Operators and Technicians V90 – 3.0MW/V100 – 2.75MW

Vestas Wind Systems A/S · Alsvej 21 · 8900 Randers · Denmark · www.vestas.com

https://northeastwindmills.com/wpcontent/uploads/2013/07/v estas-nordex.pdf

https://patch.com/massachusetts/falmouth/vestas-wind- turbine-blade-throw-safety-zone1640-feet

For employees Stay and Traffic by the Turbine

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Do not stay within a radius of 400m (1300ft) from the turbine unless it is necessary. If you have to inspect an operating turbine from the ground, do not stay under the rotor plane but observe the rotor from the front. Make sure that children do not stay by or play nearby the turbine. If necessary, fence the foundation. The access door to the turbine must be locked in order to prevent unauthorized persons from stopping or damaging the turbine due to mal-operation of the controller.

AND

If a Runaway operation should occur, the plant must evacuate immediately by running upwind ……….access to the surrounding area in a radius of at least 500 meters [1640 ft.] must be restricted.”

4. OSHA

OSH Online https://ohsonline.com/articles/2015/06/09/wind-turbine-hazards- multiply.aspx WIND TURBINE HAZARDS MULTIPLY

The industry has seen explosive growth since 1999, and so have the turbines, which have increased by about 50 percent in height (they were 60-68 meters high a few years ago but now are 100-110 meters high) and by 96 percent in rotor diameter, he said, and annual installations are predicted to stay high through 2050.

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While most turbine manufacturers recommend a minimum of 500 meters of clear space around a turbine, many now are sited close to schools, homes, and other important structures, Bierl explained.

5. MAD- OSHA and Minimum Advance Distance https://www.osha.gov/Publications/OSHA3873.pdf

6. OSHA CR 29 and safety of farmers(within the electric facility) and visitors. The First Step is to define the electric facility and its perimeter.

7. NYSERDA OFFSHORE WIND PROJECT

NYSERDA Offshore Master Plan:

7.2.5 Safety Zone Implementation H Exh 168

During construction of the Block Island Wind Farm, the USCG enforced a temporary 500-yard Safety Zone around each wind turbine location and issued Local Notices to Mariners containing construction planning information submitted by the lessee.

It goes on to state that other offshore projects maintained that distance for safety.

8. Local Land Ordinance

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15-F-0122 Sokolow Post Hearing Brief a. NYDOS- Each year, DOS staff train thousands of members of planning boards, zoning boards of appeals, local governing boards, and others at regional training events, through online tutorials, and with our many land use and legal publications. When not on the road, DOS staff educated and experienced in land use planning are available to assist local officials with technical questions about planning and land use regulation by telephone or email. b. NYDOS on Wind Laws-

(1). NYDOS Charlie Bliss as to Cohocton Wind Law-H Exh 169

Free standing towers and the associated generating equipment are not subject to the New York State Uniform Fire Prevention and Building Code. This is true for any tower, including cell towers, as long as the tower is not supported by a building. Although the building code references towers, the Executive Law only refers to the protection of people from the perils of fire and shoddy building construction. That being the case, building permits can only be required for towers if towers are specifically mentioned in Cohocton’s local law for enforcement of the New York State Uniform Fire Prevention and Building Code. Without such a reference, there is no legal method for requiring a building permit for a windmill. The changes to Cohocton’s local zoning law, seem to indicate that a special use permit is required for windmills. However, it appears as though none of those changes contains any inspection requirements.

(2) NYDOS Hathaway H Exh 170

Highlighted in the excerpt from our NYS 2017 Uniform Code Supplement below is Exception 4 of Section 101.2 Scope, which confirms that wind generation towers are not regulated by the Uniform Code when not attached to buildings. (3) NYDOS Burke- H Exh 171

Gerard Hathaway has asked me to respond to your request regarding the municipal regulation of industrial wind turbines.

NYSERDA’s Wind Energy Guide ( https://www.nyserda.ny.gov/Researchers-and- Policymakers/PowerGeneration/Wind/Large-Wind ) will help local decision makers and other

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15-F-0122 Sokolow Post Hearing Brief community members prepare for and understand wind energy development. The sections provide objective information on wind energy basics and the processes, regulations, and other important considerations involved in siting wind farms.

The Article 10 process requires environmental and public health impact analyses, studies regarding environmental justice and public safety, and consideration of local laws. It also directs applicants to provide funding for both the pre-application and application phases. It allows funding to be used to help intervenors (affected municipalities and other parties) hire experts to participate in the review of the application and for legal fees (but not for judicial challenges). More information on the Power NY and Article 10 is available here Department of Public Service website and Wind Siting Fact Sheet [PDF].

Gerard Hathaway provided this below highlighted excerpted material from the NYS 2017 Uniform Code Supplement; Exception 4 of Section 101.2 Scope, confirms that wind generation towers are not regulated by the Uniform Code when not attached to buildings.

(4) NYSERDA WIND ENERGY GUIDE

https://www.nyserda.ny.gov/Researchers-and-Policymakers/PowerGeneration/Wind/Large- Wind

Section 1: Wind Energy Basics [PDF]

Section 2: Wind Energy Site Selection [PDF]

Section 3: Land Agreements [PDF]

Section 4: Local Role in Planning and Permitting [PDF]

Section 5: Birds and Bats - Impacts and Regulation [PDF]

Section 6: Community Considerations: Planning for Construction and Operations Impacts [PDF]

Section 7: Economic Impacts of Wind Development [PDF]

Section 8: Public Safety and Setbacks [PDF]

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NYSERDA SECTION 4: The Article 10 law streamlines the application process for developers, while providing a rigorous process for local input and ensuring environmental and public health laws are followed.

D. Certification-Both Turbine and Project

Art 10 regs- Documentation regarding the status and results of third-party review and certification (type and project) of wind turbines proposed for construction and operation at the electric plant.

Applicant’s Exhibit 1001.6

Provided Type Certification for both turbines in Discovery in Nov 2018 and in the modified Feb 2019 application.

The Type certification of the Gamesa expires on or around the project start date. We have seen no documentation of continued certification by Siemens nor do we see any storage or maintenance logs for the continued storage of the Gamesa.

Applicant did not provide Project Certification details as required by Article 10 Regulations.

In Mr Readling’s testimony, there was no mention of Project Certification. Instead there was a mix of requirements under differing TYPES of Certification.

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Readling Testimony page 43

The second installment of the Type Certification process is a review of locational site

conditions. In this process, the manufacturer of a proposed turbine conducts a review and comparison of the turbine Type Certification site conditions to confirm that the turbine is suitable within a given location environmental conditions. Site environmental conditions would include average wind speeds and temperature over an extended period of time, geographic inputs such as soil type and depth and proximity of obstructions that could interfere with turbine performance and lead to extensive

maintenance costs. After review, the turbine manufacturer will, in essence, approve the turbine for the site and provide a “Site Acceptance Report”.

An additional phase within this process includes an additional review by a potential financier such as a debt or equity provider. Those providers also hire engineers to independently review site conditions and the Site Acceptance Report, among other items, to meet investment risk requirements.

Finally, after the turbines are constructed, the project owner engages an independent

engineer to confirm that the turbine, turbine construction, turbine foundation, projected long term environmental conditions and other items specified within the Type Certificate meet the Type Certificate requirements. Non-conformity would require modification of the turbine in order to be in compliance with the Type Certificate.

The current process for turbine certification is expressly designed to ensure that the turbines

selected for a particular project are suited for the needs of that project and that the project

will not pose a risk to the community in which it is located over the entire lifetime of the

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My submissions that he found confusing included TYPE CERTIFICATION and PROJECT CERTIFICATION(910):

According to DNVGL Project Certification- H Exh 156

However the combination with the experiences and know-how is essential to achieve an optimal power plant performance. Further improvement of reliable quality, stable operation and proper risk management will help to promote renewable power in a competitive energy sector even better.

In times of cost reduction the independent evaluation is of higher importance to monitor and prove the state-of-the-art level of safety, quality and reliability. Focusing on reducing capital expenditure costs alone may have critical quality impacts and may increase the overall lifetime risk and operational costs.

This service specification (SE) specifies DNV GL’s services for project certification of onshore and offshore wind power plants. It serves as

— facilitator to identify and apply relevant technical standards in a holistic concept for the benefit of the safety, quality and reliability of a wind power plant

— guidance for developers/owners during the whole life cycle from concept to decommissioning and repowering of the wind power plant

— guidance for different subcontractors such as designer and manufacturer

— description to meet the state of the art for wind power plants, and to go beyond

— support in optimising the different life-cycle phases of the power plant

— common communication platform for describing the scope and extent of activities performed for certification of a wind power plant and its assets

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— contractual basis for certification of wind power plants or their individual assets

In NYS, ideal locations for windfarms are being used up. To maximize usage, to best use public funding and to inhibit shorter than lifetime recommissioning, it behooves the Siting Board to ensure a long term benefit. PROJECT CERTIFICATION by and independent ISO 17065 accredited certification engineering firm would help by setting up parameters for inspection and remediation of parts to maximize output and safety for the maximum life of the project. It would also help the local municipalities in following through with PILOTS(weighted toward the 2nd half of the project) as well as continued production of REC’s. PROJECT CERTIFICATION is NYS’s guarantee of a better and safer and smarter PROJECTs.

D. Met DATA

The Met Data is inconsistent. The Applicant states to the USACOE that it will build 4 permanent met towers, but to the PSC under the CPCN that it has more than 5 years of “meteorological testing.” The permits show all three gathering information simultaneously for only about 9 months.

THE MET DATA AND IT’S ANALYSIS is highly important to all phases of the project including those evaluated by the expert witnesses. It is important in PROJECT CERTIFICATION.

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1. PROPOSED

4/09/19 Baron Winds to USACOE

3.1.4 HOUR PERMANENT -Wind Measurement Tower WILL BE BUILT

Up to four permanent wind measurement towers (met tower) will be installed to collect wind data and support performance testing of the Facility. The towers will be free-standing galvanized tubular or lattice steel structure and will be equipped with wind velocity and directional measuring instruments at three different elevations and temperature and humidity monitors near ground level. As currently designed, one tower may be located in the Town of Cohocton, one in Wayland, and two towers will be located in the Town of Fremont (see Figure 2).

2. ACTUAL PERMITTED MET TOWERS

Cohocton-Met Tower approval around July 2018; recent request for extension of tower height

Wayland- Met Tower –approval around beginning of 2018

Hearsay- Old met tower from 15 years ago by Loon Lake was taken down by owner before sale of property. This discussion was brought up during INITIAL Pre Application HEARING for project.

Fremont- ONE permit requested Nov 7, 2016 Resolution 85 during a special town board meeting. The met tower permitted is 60 meters.

3. Fremont Meeting Aug 2018 Leah Grossman states “WE has been collecting wind data for years.”

NOTE: Wind Data is a proprietary-company secret so wind data from Cohocton, Dutch Hill and Howard is NOT available.

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4. STATED WIND DATA CPCN #19-E-0277 page 12

Baron Winds has confirmed the excellent wind generation capability at the site through its more than five years of meteorological testing.

5. WIND PRO(MESO, METEO, Analysis, WasP)

Licensing

Meso extra for additional cost- to be used Version 3.0 plus

The EMD-WRF mesoscale on-demand service offers several attractive advantages such as:

Results in multiple heights

Recent WRF version is applied.

Improved land use model.

Improved solar radiation results.

Turbulence information for all years is included.

Improved atmospheric stability signal (MOL).

Validation of MESO with Met Data

Validation

The histogram on the right shows the distribution of correlation coefficients (R) for EMD-WRF ERA-Interim using more than 150 masts around the world. Correlations in the range of 0.7 to 0.9 are most common, but correlations may vary significantly with the complexity of the local meteorology and the ability of the WRF model to capture it.

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You can also find more validation results in this technical note.

North America

The NCEP North American Regional Reanalysis Data is a high resolution high frequency assimilated dataset covering the North American region.

NARR Dataset at EMD

The NARR dataset at EMD currently holds 10 m and 30 m wind speeds as well as 2 m temperature data. An overview of the data is given in the tables below. Please refer to these tables when interpreting the headers in the files received from the EMD server.

Meteo data required-quote

METEO

Function

Import, analysis, synthesize and presentation of measured wind data.

Preparation of the wind data for wind statistics generation with WAsP.

Advanced analysis and synthesize of wind data between different masts in the METEO analyzer tool.

Import of long-term reference data from our extensive worldwide online database with both meteorological measure-ments and mesoscale model data.

Calculation of the energy yield of a WTG based on measured on-site wind data (without applying a flow model, like WAsP, for offshore project for example).

Calculation Method

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The simple energy calculation that can be perfomed with the METEO module, consists in the integration the wind data with the WTG power curve at a selected hub height. Three wind data types are possible as an input:

Weibull, where the Weibull-fitted data from the measurements are integrated with the WTG power curve.

Measure, where the frequency table of measured wind data is directly integrated with the power curve.

Time series, where the measurements as time series are directly integrated with the power curve.

In all cases, a height correction of the measured data from the measuring height to hub height is calculated with the shear exponent. The shear exponent can be entered sector wise or automatically calculated for different day/night/seasonal conditions from additional measuring heights.

Necessary Input Data (Objects)

Meteorological data:

Meteorological data are input in the METEO Object. Joint distribution of wind speed and direction can be introduced as one of the following:

Raw logger data:

Advanced import filter can read any ASCII files with time stamps, and selected binary files. Handles: wind speed, wind direction, standard deviation or turbulence intensity, date and time, temperature and many other atmospheric parameters.

Time series (wind speed, wind direction, turbulence intensity, date and time) and more

Frequency table (wind speed distribution and turbulence intensity for each directional sector).

Weibull Data for each directional sector

Additional measured heights are handled in the same METEO Object. Lots of advanced tables and graphic analysis features (statistics, data recovery rate, wind speed difference/ratio diagram, wind roses).

Wind Turbine (Power Curve)

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To perform a simple energy calculation one or more power curve is required. The power curve can be found in the WTG Catalogue. The power curve is adjusted for the local air density, which can be taken from the embedded climate database or calculated from local measurements.

Access to online Long-term Reference Data

Within the module, users can download NCEP/NCAR (worldwide, grid resolution of 2.5° longitude/latitude), NARR (North America, 32 km resolution), QSCAT (offshore, variable resolution), Blended Coastal Winds (offshore), MERRA (0.5° lat. x 0.6°long.), CFSR (0.5°), METAR (5000 Airports worldwide), SYNOP(7000 synoptical stations worldwide). These data can be imported directly into a METEO Object and used as long-term reference data.

Other data available per subscription: the EMD ConWx Mesoscale model with hourly output available for Europe (resolution 3×3 km). And available per credits: the EMD-WRF Mesoscale On-demand data where the EMD’s mesoscale model is run for a specific point where ever on the globe

Description

The METEO module is both an advanced import and analysis module for measured wind data and a way to calculate energy yield of a WTG based directly on measured wind data.

It is possible to read any kind of data (wind speed and direction, temperature, cloudiness,…) arrange them in time series, tab files and obtain the Weibull parameters.

It is possible to visually inspect time series, gunshot diagrams, directional distributions and much more. Basically any signal can be plotted against each other. The WAsP vertical profile can be calculated and compared to the measured wind profile. The shear table can be calculated based on different measured data. Different time series can be compared with each other in all diagrams and selected data can be disabled both through selection filters and

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15-F-0122 Sokolow Post Hearing Brief visually on the time series, which makes it easy to identify and eliminate errors in the measurements.

Included in the METEO module is the METEO ANALYZER which is a strong tool to compare the data of different measurement masts, to make substitution of time series (e.g. to synthesize time series in case of missing data or to scale the data sectorwise and on monthly/dayly wise), cross-predictions using WAsP, or preparing data for time-dependent PARK calculations.

Calculations report

The report generator includes a number of printouts and analysis options. The following printouts are available:

From the METEO Object:

The report available from the METEO object provides a thorough documentation of the analyzed wind data. Data period and missing data, time series data are presented as: “Radar” graph, diurnal report, monthly distribution and time series, Weibull fit compared to measured data as a histogram and direction frequency, Turbulence for each direction and wind speed, wind speed difference. Basically, any graph available within the METEO object can be reported.

From the METEO calculation report:

Main Printout, Energy Production Analysis, Power Curve Analysis, Wind Data Analysis, Maps.

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EXHIBIT 1001.15 Safety and setbacks

Article 10 Regs

1001.15 Exhibit 15: Public Health and Safety

Exhibit 15 shall contain:

A statement and evaluation that identifies, describes, and discusses all potential significant adverse impacts of the construction and operation of the facility, the interconnections, and related facilities on the environment, public health, and safety, at a level of detail that reflects the severity of the impacts and the reasonable likelihood of their occurrence, identifies the current applicable statutory and regulatory framework, and also addresses: the anticipated gaseous, liquid and solid wastes to be produced at the facility during construction and under representative operating conditions of the facility, including their source, anticipated volumes, composition and temperature, and such meteorological, hydrological and other information needed to support such estimates and any studies, identifying the author and date thereof, used in the analysis; the anticipated volumes of such wastes to be released to the environment during construction and under any operating condition of the facility; the treatment processes to eliminate or minimize wastes to be released to the environment; the manner of collection, handling, storage, transport and disposal for wastes retained and not released at the site, or to be disposed of; for wind power facilities, impacts due to blade throw, tower collapse, audible frequency noise, low-frequency noise, ice throw and shadow flicker; maps of the study area and analysis showing relation of the proposed facility site to public water supply resources; community emergency response resources and facilities including police, fire and emergency medical response facilities and

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15-F-0122 Sokolow Post Hearing Brief plans; emergency communications facilities; hospitals and emergency medical facilities; designated evacuation routes; existing known hazard risks including flood hazard zones, storm surge zones, areas of coastal erosion hazard, landslide hazard areas, areas of geologic, geomorphic or hydrologic hazard; dams, bridges and related infrastructure; explosive or flammable materials transportation or storage facilities; contaminated sites; and other local risk factors; all significant impacts on the environment, public health, and safety associated with the information required to be identified pursuant to subdivisions a through f of this section, including all reasonably related short-term and long- term effects; any adverse impact on the environment, public health, and safety that cannot be avoided should the proposed facility be constructed and operated, and measures for monitoring and measuring such impacts; any irreversible and irretrievable commitment of resources that would be involved in the construction and operation of the facility; any measures proposed by the applicant to minimize such impacts; any measures proposed by the applicant to mitigate or offset such impacts; and any monitoring of such impacts proposed by the applicant.

A. Blade Throw

NYSERDA Wind Energy Guide-8 H Exh 167

A turbine blade can break due to improper design, improper manufacturing, improper installation, wind gusts that exceed the maximum design load of the turbine structure, impact with cranes or towers, or lightning. The distance a blade

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15-F-0122 Sokolow Post Hearing Brief piece might be thrown from a turbine depends on its mass, shape, speed at the time it breaks from the machine, orientation of the blade at the time of the throw, and the prevailing wind speed.

In February 2016, one of the turbines at the Fenner Wind Farm in Madison County, NY suffered a blade failure, and one of its three blades detached and fell into the field below. No people were hurt and no property was damaged. It is believed that the problem resulted from a bolt failure (Doran, 2016).

B. Tower Collapse

NYSERDA Wind Energy Guide-8 H Exh 167

In cases where information is available, the majority of the major components (rotor, tower, and nacelle) have fallen to within one to two hub-height distances from the base.

Example

Fenner town officials said it's the same 187-ton windmill - No. 18 of 20 - that collapsed in December 2009.

Noble’s Altona Wind Project 1.5 MW GE In Altona, turbines must be at least 1,200 feet from a home, and 500 feet from roads.

Mike Fellion flew over the wreckage Saturday morning and was amazed to see that pieces of the structure appeared to have been thrown “about a quarter- mile away.”

C. Ice Shedding and Ice Throw

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NYSERDA Public Safety-8 H Exh 167

Ice can accumulate on the blades, nacelle, and tower during extreme cold weather conditions. Turbines include control systems that will automatically shut down in icing conditions. Control systems can also sense when power production is reduced by ice formation and will subsequently halt turbine operation. As the ice melts, it will fall to the ground in the vicinity of the turbine. Early detection and prevention of ice formation is key to ensuring safety.

During operable wind speeds and when the turbine has not yet been shut down automatically or manually, ice can break off the blades and be thrown from the turbine, instead of dropping straight down. The distance a piece of ice travels depends on a number of variables, including position of the blade when the ice breaks off, blade speed, and location of the ice on the blade.

Blade manufacturers continue to research materials and methods to reduce the possibility of ice

accumulation and subsequent throws. Best practices include:

• Turbine Controls. Control systems detect icing on the blades resulting in reduced performance, unusual loads, or vibrations. These trigger an automatic stop. The turbine remains off-line until an operator inspects and manually restarts the turbine. If the turbine is not operating, ice from the blades, nacelle,and tower falls to the ground in the immediate vicinity of the machine.

• Operator Intervention. Project operators can halt operation of certain turbines or the entire project during icing events to prevent ice throws and equipment damage.

• Safety Zones and Signage. Adequate setbacks from inhabited buildings, roads, and power lines significantly reduce the risk of injury or damage in the event of ice throws. Researchers have developed models that predict the distance ice can be thrown from a wind turbine (Renstrom, 2015). Posting signs warning passersby of the risk of falling ice is another prudent measure.

https://www.diva-portal.org/smash/get/diva2:805173/FULLTEXT01.pdf

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Renstrom-

Due to interfering factors from wind turbines like shadows and noise, many municipalities in Sweden are using a minimum safety distance to the nearest habitation of 6 to 10 times the rotor diameter (Vindlov, 2012). Therefore, maintenance workers are most exposed to ice throw due to the fact that other people oftentimes avoid staying in the areas around wind turbines. The separated ice fragments from wind turbines can in extreme cases reach public roads because they can be thrown longer than the total height which is used as a minimum safety distance in Sweden (Vindlov, 2012). To prevent icing on wind turbines, many de-icing and anti-icing systems exist, but these are not included as the standard equipment for wind turbines from the main manufacturers such as Vestas, Enercon and Siemens. Even if a wind turbine is supplied with a deicing system, this only removes the ice when it already exists on the blades, however, not prevent it from being form. This means that ice throw can also occur with an installed deicing system. However, anti-icing systems work to prevent ice from building at the wind turbine blade but this still remains as an area of research.

NOTE Sweden- 117m diameter setbacks for noise and shadow are equal to 702 METERS (2303 ft) to 1170 METERS (3839 ft).

Renstrom used the Monte Carlo Analysis and lift force.

A ballistic ice throw model has been developed to be able to investigate how far the ice fragments can be thrown from a wind turbine. The work was divided into two parts, one sensitivity analysis and one real case study. In the sensitivity analysis, the influence of eight important parameters was investigated. The results from this part show that changes in the parameters initial radius and angle position, and mass and shape of the ice fragments have a significant influence on the throwing distance both lateral and downwind. The wind speed has only a significant influence on the downwind throwing distance, but this is quite large. A maximum throwing distance of 239 meters downwind the wind turbine was achieved with U=20 m/s, r=55 m and θ=45°. While including the lift force, a maximum downwind distance of 350 meter was achieved. However, the uncertainties about the shape of the ice fragment make these results quite uncertain.

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IEA 2018 H Exh 165 Seifert The maximum distance for ice throw from a rotating wind turbine can be estimated by the following rule of thumb, in flat terrain [27]. d =1.5(D+H), Equation 1 where d is the maximum throwing distance of ice (m), D is the rotor diameter (m), and H is the hub height (m).

Sarlak(H Exh 174 )

“The ever-growing number of wind turbines installed near inhabited areas, buildings and community facilities, such as bridges, power installations or highways, has resulted in an increasing concern by authorities to determine risk levels associated with wind turbine blade failure. From a safety point of view, the most serious failure is associated with splintering of rotor blades and detachment of debris, which could be thrown over long distances and damage people or property. Ice-throw from wind turbines installed in cold climate is also of high concern, especially for wind turbines erected near highways where the ice pieces thrown from a wind turbine may strike a passing car, which in the worst case may cause a fatal accident.”

Safety distances Table I. of wind turbines from human structures as practiced in different regions of the world.

Authority/source Safety distance [m] (ft)

France 1609m (5280ft)

Germany 1609m (5280ft)

Rural Manitoba, Canada 1981m (6500ft)

US National Research Council 762m (2500ft)

IL, USA 457m (1500ft)

Riverside County, CA, USA 3218m (10560ft)

MI, USA 304m (1000ft)

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“It is found that, while at tip speeds of about 70 m/s (normal operating conditions), pieces of blade (with weights in the range of approximately 7-16 ton) would be thrown out less than 700 m for the entire range of wind turbines, and turbines operating at the extreme tip speed of 150 m/s may be subject to blade throw of up to 2 km from the turbine. For the ice throw cases, maximum distances of approximately 100 and 600 m are obtained for standstill and normal operating conditions of the wind turbine, respectively, with the ice pieces weighting from 0.4 to 6.5 kg.”

Anti-icing or De-Icing System

Nordex 117 has the potential for an anti-icing blade heating system. It does not appear that heating the blades is being used; ice sensors will be used; maybe because of economics or energy production or because one SCADA system is using two differing turbine models.

Gamesa turbines ice remediation is unknown.

Readling(page 28-29) in Testimony states:

Yes, both the Nordex and Gamesa turbines proposed for the Project will be equipped with sensors to detect ice buildup. These sensors consist of temperature, humidity and other environmental sensors to determine if ice accretion conditions are in existence. Sensors also monitor turbine performance to determine if ice accretion is resulting in sub-optimal production performance due to reduced blade aerodynamics and vibration. When design parameters are exceeded, the system automatically shuts down the turbine to allow for

inspection by operations teams

Therefore Nordex 117 Anti-icing (heating the blades to prevent ice) will not be used.

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Readling states in Testimony page 35-36

Please provide detail regarding ice accretion detection and effects on turbine

operations.

A: Nordex turbines placed within the Town of Fremont will be equipped with sensors to detect and counter potential ice buildup. These sensors consist of temperature, humidity and other environmental sensors to determine if ice accretion conditions are in existence. Sensors

also monitor turbine performance to determine if ice accretion is resulting in sub-optimal

production performance due to reduced blade aerodynamics or vibration. When design parameters are exceeded, the turbine will be automatically shut down to allow for inspection

by operations teams. Note that no Gamesa turbines will be located within the Town of

Fremont.

So there is a possibility that the system just measures vibration; not specific to ice. The anti icing is NOT being used.

Since the Great Lakes area ( ) has a unique icing phenomenon, it is crucial to have the accuracy of the system for longevity of the project as well as safety. I have provided many articles on the ICING Phenomenon()

For the protection of the public, one should assume the risk of ice throw not ice fall because the Applicant is not shutting down until Blade icing vibrations are sensed. The distance must be set for delayed control and ice build up.

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This leads to more questions about the suitability of turbines for “extreme climate” and need for project certification with evaluation and plan for longevity.

Readling-

Baron Winds is considered to be in a cold weather climate environment for turbines based on historical temperature data. Due to this, the cold weather packages will be installed for the Baron Winds turbines. The cold weather package provides heating to many turbine components such as the gearbox, yaw and pitch motors, nacelle space, slip ring, controller

and control cabinet. Additionally, the cold weather package will allow the Baron Winds turbines to operate in the range between minus four degrees Fahrenheit and minus 30 degrees Fahrenheit. It is notable that wind turbines are installed and operating in many of

the harshest cold weather climates of the world, both onshore and offshore.

During the turbine selection process, potential icing and climate related performance

degradation is evaluated when calculating expected production. Production estimates

include a discount for expected icing and low temperature events. Baron Winds did not conduct a site-specific ice throw analysis as historical data indicates any concerns can be

addressed through ice detection systems and setbacks consistent with industry standards

for ice throw.

Readling continues-

Similar to Cassadaga, which is an Innogy sponsored project, Baron Winds has committed to setbacks greater than the proposed maximum height of the turbines.

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The APPLICANT did not provide a risk assessment nor manufacturer’s specifications for setbacks.

RULE OF THUMB is unacceptable.

Risky shorter setbacks for seasonal, roads, barns, leaseholders or good neighbors is unaceeptible.

Risk assessment should include the cumulative impact of multiple projects.

The APPLICANT did not comply with the regulations potentially jeopardizing health and safety.

D. Public Health and Safety-Noise

NYSERDA NOISE WNY H Exh 190

NYS happens to be a state that utilizes the ambient-based approach for developing noise limits for environmental noise exposure (DEC, 2001). The ambient-based approach provides a more relevant and site-specific aim by considering the perception of new sound in a defined geographic location or community. NYSERDA Wind Turbine Noise H Exh 189

Modern wind turbines are designed to keep noise levels at or below 45dB at distances of 350 meters (1,000 feet), and noise levels should drop to 35−40dB at 1,000 meters, a bit over half a mile (Cummings n.d.).

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Studies in the Netherlands and Sweden have modeled wind turbine noise and levels of annoyance by surveying residents who live in proximity to turbines. They found a statistically significant relationship between A-weighted sound pressure levels and annoyance (Pedersen and Waye 2004, 2007; Pedersen et al., 2009). Using these data, the researchers concluded that 5% of people were annoyed at noise levels between 35−40 dBA and 18 percent were annoyed at 40−45dBA.

Low levels of ambient noise enhance the perception of turbine noise, potentially increasing annoyance levels. Moreover, many people expect noise levels to drop off during the night, and may be annoyed when noise interferes with their sleep. In short, noise annoyance is more likely during evening and nighttime hours than during the day, implying that design and regulatory goals should consider nighttime sound levels to determine limits (Hessler and Hessler 2011).

As suggested earlier, the particular characteristics of a noise may affect the level of noise annoyance. Unpredictable an uneven sound may increase annoyance levels. Because turbine noise is amplitude modulated, and therefore more noticeable, people may be more annoyed by turbine-related noise than they would by other sources. In fact, one study (Pedersen et al., 2009) found that people were more annoyed by wind turbine noise than by transportation and industrial noise at similar levels, and suggested that this may be due in part to its rhythmic and uneven quality.

New York is one of three states (Massachusetts and California being the other two) that sets noise limits based on ambient sound levels. This approach uses existing background sound levels to calculate acceptable noise limits, a better approach than setting absolute limits because it takes into account different geographies and environments. A typical rural environment, for example, has lower ambient sound levels than an urban environment. The New York State regulation limits any increase in sound levels to five dBA above existing background levels. Using a generic background level of 33 dBA for rural areas, Hessler and Hessler (2011) estimate that the design level for a new wind project

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15-F-0122 Sokolow Post Hearing Brief would range from 38 to 40 dBA in rural area where wind projects are typically sited.

AMBIENT NOISE

Baron Winds Exhibit 19 Nov 2017

Ambient Noise Monitoring Locations

On behalf of the Applicant, RSG completed winter (leaf off) and summer (leaf on) background sound level monitoring at seven representative locations within the Noise Impact Study Area. Monitoring sites were chosen to capture a variety of existing soundscapes. Criteria characterizing potential soundscapes of the area were developed and sites that were diversified amongst these criteria were selected for monitoring. The various representative areas include rural residential, active farm, small town, low and high traffic roads, high truck traffic, recreational areas, and remote areas.

While Mr. Kaliski took representative soundscapes (rural residential, active farm,small town, low/high traffic roads, high truck traffic, recreational areas and remote areas) for his PNIA sites, he did not similarly characterize the receptors. The PNIA was averaged instead of applying percentages of characterizations for the receptors.

Another way to increase accuracy is to use the lowest PNIA as Hessler suggested page 4:

The more conservative nighttime L90 sound level was dramatically lower at between 19 and 22 dBA, even without excluding the Brasted Road and Loon Lake positions. These

extremely low environmental sound levels generally indicate that project noise in the low

40’s dBA will be grossly out of compliance with the 6 dBA increase criterion and more

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generally indicates that the project design should have gone beyond mere compliance

with the permissible regulatory maximum and sought a lower design target, such as the

40 dBA ideal design goal I suggest in the NARUC guidelines 25 , or at least something approaching that.

*****It is especially important to INCLUDE the footnote-

Footnote In Figure 75 of the original PNIA (Nov. 2017, p. 97) the rounded peak in the measured frequency spectra for all times of day and both seasons is a tell- tale indicator of road/tire noise.

WITH such discrepancy of PNIA’s , I compared EDR Sound Propagation Maps.

I chose ONE outlying area in each series of sound Maps NOT impacted by turbines and easily searchable; Map 1 at Isaman Rd. The EDR keys did not change for color code with the lowest being 20 dBA but the L was either L10 or NOT mentioned.

Exhibit 354 EDR Sound Propagation 3/12/19 L1h Baron only Map 1 LEFT Isaman Rd surrounded by 20 dBA

Exhibit 318 EDR Sound Propagation 2/01/19 non-cum L1h Map 1 LEFT Isaman Rd surrounded by 25 dBA

Exhibit 181 EDR Sound Cum Sup 3/09/18 L undertermined Map 1 Left Isaman Rd surrounded by 25 dBA (two irregular polygons).

Exhibit 181 EDR Sound Baron Only 3/09/18 L undertermined Map 1 Left Isaman Rd Surrounded by 25 dBA ( 4 irregular rectangles).

Exhibit 389 “Exhibit 301 RSG” Sound Map 3/28/19

Isaman Rd undetermined lowest 30 dBA on Key

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The non scientific search for a baseline level, left me perplexed. No two maps were alike. The public could not interpret any significance or impact for their specific area with the differing sound maps provided.

H Exh 200 ANSI-ASA S12.100(2014) for ambient baseline rural measurements.

There are special ANSI-ASA measurements for rural ambient measurements. This requires all transient sounds to be removed from the data set used to calculate the sound level. Using ANSI-ASA S12.100, Baron Winds should result in ~20 dBA at night for Baron Winds.

The AMBIENT BASELINE should be measured PRIOR TO ANY CONSTRUCTION at night; Preferably by both the DPS and the Applicant to ensure reliability and repeatability. ANSI-ASA S12.100 should be used to remove all transient sound.

After the project is built a baseline noise level should be taken.

ANNOYANCE NOISE

NYSERDA NOISE WNY H Exh 190

NYS happens to be a state that utilizes the ambient-based approach for developing noise limits for environmental noise exposure (DEC,

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2001). The ambient-based approach provides a more relevant and site-specific aim by considering the perception of new sound in a defined geographic location or community.

NY DEC Assessing and Mitigation Noise Impacts

All previous windfarms built in NYS were evaluated for sound/noise using the NY DEC’s Assessing and Mitigating Noise( Exh 246) under the SEQR process. The DEC supported the lead agency. Infrasound and low frequency were not included, but it states:

“Options to be used to fulfill this guidance should be implemented within the existing regulatory and environmental review framework of the agency.”

As per the DEC’s Chart:

HUMAN REACTION TO INCREASES IN SOUND PRESSURE LEVEL

Increase in Sound Pressure (dB) Human Reaction

Under 5 Unnoticed to tolerable

5 - 10 Intrusive

10 – 15 Very noticeable

15 - 20 Objectionable

Over 20 Very objectionable to intolerable

(Down and Stocks - 1978)

Taking Hessler’s PNIA for the project, the turbines would be objectionable or intolerable when using the areas current local wind laws.

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Hessler-

“Consequently, I would agree with and highlight the statement on Page 46 of the updated Exhibit 19 write-up that there is an expectation that 22 receptors may be highly annoyed indoors, and about 29 receptors may be highly annoyed outdoors.” Those are also very high numbers. There should not be an expectation that just because the regulatory limits are barely met that everyone will be delighted with the project.”

NYSERDA 13.14( H Exh 189)

Topography and meteorology varies greatly from location to location. Generic sound standards and setback limits (based on another location) may not always be appropriate due to sound propagation and attenuation by site specific circumstances.

WHEN HAS NYDEC’s ASSESSMENT AND MITIGATION FOR NOISE BEEN USED? Please find 8 examples.

1. NYDEC to FERC on Wind Project H Exh 203

Comments on Noise Impacts of Previous Wind Projects:

Regarding noise, consistent with our noise policy, the impact assessment should include an analysis for when receptors in the vicinity may experience sound pressure increases of more than 6 dB over ambient conditions. Moreover, we would recommend that our noise policy be applied.

The DEC recommends computer modeling for noise to include site specific turbine locations. It is recommended that the conservative approach of using property lines as the receptor be employed.

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2. NY Comptroller’s Use of WHO Guidelines for NYC Noise in the 311 Audit H Exh 205

According to the World Health Organization’s Guidelines for Community Noise, exposure to excessive levels of community noise can have adverse health effects for residents. The general population is increasingly exposed to community noise, creating the potential for a significant public health problem. The Centers for Disease Control and Prevention has also outlined the adverse health effects from noise. In addition to hearing loss, noise can lead to: increased stress, anxiety, and fatigue; elevated blood pressure; cardiovascular disease; loss of sleep; an increased heart rate; and an increased sensitivity to sound. Further, excessive noise during pregnancy may damage a newborn’s hearing and lead to other harmful effects. Untreated, hearing loss can lead to social isolation, depression, dementia, falls, inability to work or travel, and lower physical activity. 3. NYC’s policy- H Exh 198

A single circulating device may not produce noise levels in excess of 42 decibels, as measured three feet from the noise source at an open door or window of a nearby residence.

To account for the cooling needs of new construction or shifting building populations, the Noise Code limits buildings with multiple devices to a cumulative noise level of 45 decibels, as measured per the above standard.

4. The DPS uses NY DEC Assessing & Mitigating Noise for Substations

H Exh 182

Per the direction of DPS Staff and the conditions of the EM&CP Order, the post operational sound survey will be performed in accordance with the New York State Department of Environmental Conservation Program Policy DEP-00-1 “Assessing

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15-F-0122 Sokolow Post Hearing Brief and Mitigating Noise Impacts”, revised 2/12/2001 (“NYSDEC Policy”) and DPS Staff recommendations.

5. The DPS used it for Compressor Noise in Prattsburgh (proximal to project on Rt 53)

H Exh. 207 Cole

PROPOSED STATEMENT OF POLICY REGARDING

NYDPS THE NOISE GUIDELINES FOR GAS COMPRESSOR STATIONS issued 28 October 1986

H Exh 208 Cole2

On or about August 14, 2003, Staff received a complaint from Mr. Richard Cole who lives in the Town of Prattsburg in Steuben County. Mr. Cole complained about the noise level from Columbia Natural Resources, Inc.'s compressor station facilities located at the Cook

School Road site. Staff notified Columbia Natural Resources, Inc. of the complaint.

At the time, Columbia Natural Resources, Inc. was involved in a corporate acquisition whereby it was being converted into a limited liability company (i.e.. CNR) and purchased by Triana Acquisition, LLC (with CNR being the surviving entity). The corporate transaction became effective September 1,2003. New management took over operations of

CNR on September 2, 2003.

Upon further investigation by CNR personnel, it was determined that the two original compressors at the Cook School Road facility, each equipped with a 280hp engine, were replaced earlier in the year with new compressors, one having a 660hp engine and one having a

1340hp engine.

On September 2,2003, CNR filed a petition to amend its Certificate of

Environmental Compatibility and Public Need ("Certificate") to reflect the new compressors.

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On September 4-7, 2003, CNR dispatched personnel to meet with the landowners near the Cook School Road site and took a number of steps to mitigate noise from the compressors, including the addition of a super hospital muffler on the larger compressor (which was ultimately shut down until further mitigation measures could be taken).

On September 8, 2003, Staff sent CNR a letter describing the complaint and stating that the change in compressors was done without notifying Staff in violation of the New

York State Public Service Law and CNR's Certificate. Staff also recommended the use of temporary measures to mitigate the noise from the compressor stations until permanent measures could be installed by CNR

6. DPS to National Grid re substation

National Grid- H Exh 212

The Noise Analyses also include estimates of the planned 5-Mile Road substation operational noise levels based on evaluation using the Cadna/A modeling program, in accordance with International Standards Organization (ISO) 9613-1 and 9613-2 Acoustics sound attenuation criteria. Terrain, weather, wind conditions, ground absorption and station design details are accounted for in the modeling. Modeled results are reported and assumptions are stated.

The analysis includes a review of consistency with the New York State Department of Environmental Conservation (DEC) Noise Policy, identifies the potential to exceed the thresholds of that policy, and reviews mitigation options to reduce forecasted noise levels at identified receptor locations and in the Project vicinity. Mitigation measures considered in the analysis include sound walls at parts of the site perimeter and at individual noise sources within the station (including the transformer and the reactors), and a retro-fit attenuation design for the reactors. 7. NYSERDA used the NY DEC Assessing & Mitigation for NOISE 13.14

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8. Steuben County Planning used NYSERDA 13.14 and NY DEC ASSESSING & MITIGATING NOISE when reviewing municipal wind laws FOR BARON WINDS

REALISTIC ANNOYANCE NOISE MITIGATION FOR WIND PROJECTS ARE SETBACKS AND NRO’s

SETBACKS

H Exh 189 NYSERDA 13.14

2.2.1 Audible Sound Levels from Wind Farms

A number of studies describe audible sound levels measured from wind turbines:

• Several studies report audible sound measurements (20-20,000 Hz) for multiple wind farms recorded at distances more than 500 meters (approximately 1,640 feet) from the turbines during daytime hours.

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The highest recorded sound levels in these studies were in the range of 20-50 dBA, which is similar to sound levels ranging from a whisper to sound levels you would find inside a home.18,19,20

• For two different types of wind turbines at Horse Hollow Wind Farm in Texas, researchers found that at 1,000 ft (approximately 300 m) the average noise level was 49.6 dBA for the Siemens 2.3 MW turbine,and 50.7 dBA for the General Electric 1.5 MW turbine.21

• According to monitoring done at the Maple Ridge Wind Farm in New York State, wind speeds of 12 m/s or less at distances of 340-640 m (1,115-2,100 ft) from the turbines, sound levels ranged between 40 and 50 dBA.

In my cross examination of Mr. Kaliski, Mr. Kaliski stated that setbacks, NRO’s, Hvac’s and boundaries/walls were mitigation techniques for noise from wind turbines. The boundaries or wall are unrealistic.

Setbacks must be examined before a project is built.

NYSERDA-13.14 H Exh 189

In one study, questionnaires were given out to residents living within 8 km of a group of wind turbines. The questionnaire asked about all areas of physical, environmental and health related quality of life. A comment section was available for reporting items of annoyance. Residents living within 2 km reported an overall lower quality of life and more often reported wind turbine noise annoyance in the comments section in comparison to those groups that were farther away. Limitations of this study include a lack of sound measurements, and subjective health data (i.e., self-reported symptoms). Also, while the participants felt their annoyance and attributed it to the wind

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15-F-0122 Sokolow Post Hearing Brief turbines, the self-reported quality of life numbers could not be directly attributed wind turbine noise exposure.

Mr. Kaliski referred to the Canadian Health Study multiple times.

The Canadian Health in 2013 set the parameters and a cautionary note, H Exh 296

As per Mirard 2015 and 2016 (H Exh 297 and 298) a. The wind turbine electrical power outputs ranged between 660 kW to 3 MW(average 2.0 ± 0.4 MW). All turbines were modern monopole tower design with three pitch-controlled rotor blades (~80 m diameter) upwind of the tower and most had 80 m hub heights.

b. All identified dwellings within approximately 600 m from a wind turbine and a random selection of dwellings between 600 m and 11.22 km were selected c. from which one person per household between the ages of 18 and 79 y was randomly selected to participate. d. The final sample size in ON and PEI was 1,011 and 227, respectively.

ISSUES with COMPARISON: a. Mixed MW size in Canadian Study b. Surveyed population was greater than 600 meters. Ontario’s minimum setback was 550 meters at the time? Better than Baron Wind setbacks. c. Population was skewed. Eliminated children and some elderly. d. The population sample was significantly disproportionately larger in ON than PEI. What were the size and distance or model of the turbines?

This was not a comparable situation.

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I agree with Mr. Miguel Moreno-Caballero that the WHO Noise Guidelines for 2018 supported the other WHO Noise Guidelines and that they should be uses. I raised this in my Issues of Oct 2018 and did not agree to the Stipulatons.

Looking at Mr. Kaliski’s KK-10 (2018) Regulatory and Predicting WT sound in the US, I agreed with,

“Meaningful sound regulations should strive to use approaches that are relevant, repeatable, predictable, and reasonable to implement.”

So I looked further through his KK-10 to found a webinar presentation:

Haack, Landis, Kaliski and Hoen,et al reviewed multiple US existing wind projects: https://emp.lbl.gov/publications/exploring-prediction-wind-turbine

Note: This study has not been reviewed yet and conclusions may change.

Interestingly, they analyzed annoyance to background ambient but also to distance. Very close receptors were less than 1 mile. Large projects were greater than 10 MW. Compare this to BW.

At ½ mile to 1 mile ~40% hear wind turbines on their property

~20% can hear a wind turbine in their home

At less than ½ mile ~75% of the population can hear wind turbines on their property

~50% living within ½ mile can hear a wind turbine in home

Not only does background impact annoyance, but so does DISTANCE from the source. I can personally attest to this. At >1500 meters receptor distance (as

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15-F-0122 Sokolow Post Hearing Brief per BW’s maps) to the Cohocton Turbines, I can hear the turbines especially the Amplitude Modulation as well as the “train” sound from a direction other than its perceived source! Sometimes louder than other times.

First line of mitigation for NOISE and ANNOYANCE is ample safe SETBACKS.

Since Applicant’s tend to minimize their setbacks, they use the second line of defense: NRO’s

NRO’s should not be used for pre mitigation siting since they are the only mitigation left.

NRO’s

Mr Hessler stated in Cross examination Kaliski, he sent some field measurements that he's ma, “Noise reduced operation(NRO) is a way to make the turbines quieter. And it’s mainly used after the fact, if there's complaints or issues, to lower the project noise to resolve complaint issues.” He continued, “In the past, there really hasn't been any way to fix a noise problem from wind turbines. This is a fairly new technique that didn't exist ten years ago when I was doing most of my work in this. But now it’s a -- a common capability of all turbines. I'm -- I'm a little bit leery of it because I haven't personally measured and verified that it actually, you know, works exactly like promised. But -- but there's also been some – in the -- in the rebuttal testimony of Ken de that shows that it works fairly well, so -- and I don't have any reason to doubt that.”

I agree with Mr. Moreno-Carballero and Mr. Hessler that NRO’s should be saved for post mitigation since HVAC, and walls are not realistic. The effectiveness of NROs is probably not accurately known and with it comes a loss of energy.

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PROPER SETBACKS at the modeling stage are more realistic and safe and energy preserving.

Amplitude Modulation Annoyance

AM is discussed at pp. 73-75 of the Cassadaga Siting Board Order. The Order imposes a limit of 6 dB on AM depth, "triggered only when the Applicant receives a complaint about such noise". If the AM depth limit is exceeded, the Applicant must apply a penalty of “an additional 5 dB to be included in its compliance monitoring results”. This makes the penalty approach applicable only to post-approval compliance testing, not to the modeling.

However, the discussion concludes with this promising language:

"In taking this action, we recognize that this is an evolving area of noise regulation, particularly with regard to wind turbines, and appreciate Cassadaga Wind’s suggestions for clarity. We will be reviewing the parties’ development of the record on this issue in future proceedings."

The Article 10 regulations require that stable atmosphere at noise receipts be assumed when wind turbines are operating. 16 NYCRR § 1001.19(d).

H Exh 222

The contrary assumption, that the wind and atmospheric conditions are consistent at all heights, such that wind-induced noise can be inferred by “normalizing” wind speeds, is the Applicant's theory, used to support the (erroneous) point that wind-masking noise will

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15-F-0122 Sokolow Post Hearing Brief mitigate annoyance-level project sound at all receptors. Van den Berg and others plainly disprove the theory.

In addition to studies focused specifically on AM, consider submitting into the record G.P. van den Berg, The sound of high winds: the effect of atmospheric stability on wind turbine sound and microphone noise (University of Groningen Doctoral Diss. 2006), available at http://dissertations.ub.rug.nl/FILES/faculties/science/2006/g.p.van.den.berg/00_titlecon.pdf

“A high wind shear at night is very common and must be regarded a standard feature of the night time atmosphere in the temperate zone and over land.” Van den Berg (2006, p. 104).

Based on a full year of measurements every half-hour at a wind farm in Germany, van den Berg found: the wind velocity at 10 m[eters] follows the popular notion that wind picks up after sunrise and abates after sundown. This is obviously a ‘near-ground’ notion as the reverse is true at altitudes above 80 m. . . . after sunrise low altitude winds are coupled to high altitude winds due to the vertical air movements caused by the developing thermal turbulence. As a result low altitude winds are accelerated by high altitude winds that in turn are slowed down. At sunset this process is reversed. (Van den Berg 2006, p. 90)

In other words, when ground-level wind speed calms after sunset, wind speed at typical hub height for large wind turbines (80 meters, or 262 feet) commonly increases. As a result, turbines can be expected to operate, generating noise, while there is no masking effect from wind-related noise where people live. “The contrast between wind turbine and ambient sound levels is therefore at night more pronounced.” Id., p. 60.

In addition, as the turbines sweep from top to bottom under such conditions the blade tip encounters slightly different wind velocities creating unexpected turbulence that results in rhythmic swishing noise. Id., p. 61. Cf. also Minnesota Department of Public Health (2009), pp. 12-13 and Fig. 5. Such calm or stable atmosphere at near-ground altitude accompanied by wind shear near turbine hub height occurred in the van den Berg measurements 47% of the time over the course a year on average, and most often at night. Van den Berg 2006, p. 96.

Finally, van den Berg (2006, p. 36) found the pulsating sound of wind turbines fluctuates between beats in the range of 5 to 9 dBA. Under wind shear conditions, ground-level receptors will be exposed to the full effect of such AM.

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NYSERDA 13.14 H Exh 183

2.2.3 Worst-Case Scenario

Several publications describe how a particular time of day, wind speed, and meteorological condition together contribute to what is known as the worst case scenario. This scenario consists of nighttime conditions, a stable/calm atmosphere and low wind speeds. At night, the land cools down, which can create calm conditions at ground level.

Meanwhile, at the height of the turbine hub (approximately 80 m) winds are blowing more strongly than at ground level. A stable atmosphere inversion occurs, whereby the cool air near the ground’s surface gets trapped underneath a warmer atmosphere above it, and vertical mixing ceases. As a result, sound also tends to get trapped in the lowlying areas (much like smoke and fog can).

Researchers have found that when wind speeds are less than 3 meters per second (6-7 miles per hour), turbines can still operate, and sound levels can be approximately 20 dBA above expected background levels, which according to the DEC can be “objectionable.” Over the course of a year, a stable atmosphere can potentially occur 43 percent of the time. Most stable atmosphere measurements occur during nighttime hours. One study found that 72 percent of the nighttime noise measurements were higher than expected, and at very low wind speeds the sound measurements were more than twice as loud as expected. Most measurements of wind turbine noise have been taken during daytime hours. However, this research suggests that a number of nighttime measurements under different weather conditions are also necessary, if the goal is to fully characterize nighttime noise.

NYSERDA 13.14

EPA 4.2 US EPA’s Environmental Noise Levels Document

One of U.S. Environmental Protection Agency’s (EPA) most well known reports on noise was created to protect people against hearing impairment, as well as try to mitigate some annoyance that was reported through surveys.

The researchers used two forms of noise measuring metrics to create adequate levels for the public. The first is known as Leq (long-term equivalent A-weighted sound level), and the second is Ldn (A-weighted sound level was averaged over 24 hours with a 10 dB penalty added to nighttime sound levels).

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For outdoor levels in residential areas, the recommended Leq and Ldn is less than 55 dB. For indoor levels, the recommended Leq and Ldn is less than 45 dB. The goal of these recommendations is to receive only sporadic complaints or less from communities.

EPA also addresses an important concept of normalization of sound levels based on different circumstances. For a quiet rural neighborhood, 10 dB needs to be added to the sound source level. If the community is brand new to the noise source, then an additional 5 dB must be added to the sound calculation. If the sound is impulsive, another 5 dB must be added to the sound calculation. So if wind turbines are installed in a community similar to the circumstances described, 20 dB would need to be added to the sound source level from the reception point to adequately normalize the noise level. A wind turbine should then hypothetically not be higher than 35 dB at any resident’s location to insure that the level stays below 55 dB. Setback distances of turbines to residences should ensure these sound levels before operation.

THE AMPLITUDE MODULATION MUST BE FACTORED IN AT SITING ESPECIALLY WHEN THE NOISE MITIGATION AFTER CONSTRUCTION IS LACKING, THE SETBACKS ARE POOR, THE MET DATA IS LIMITED AND THE GOOD NEIGHBORS lack ptotection.

Other Noise not considered-

1. Ice (Kaliski cross examination that ice was not included in modeling).

2. Difference in ambient/baseline before and after turbine built as in the case of Falmouth, Maine.

3. Width of turbine blade when modeling. This also leads to concern of project certification and blade replacement effects upon noise.

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Infrasound

From NYSERDA 13. 4.3 (page 14 of 34 )

Massachusetts Health Impact Assessment Review

A Massachusetts Department of Environmental Protection health impact assessment provided sound measurements associated with wind turbines and a discussion of health effects. However, the results of this study may not be universal because the different variables that influence sound propagation will cause different experiences for different areas and residents. Given those caveats, this study found that the sound level for a “typical modern utility scale” wind turbine at its site is 103 dBA, which is similar to the loudness of a lawn mower or motorcycle. On average, at distances greater than 400 m from the turbines, the sound level dropped to less than 40 dBA (library level sound). The report recommends that for residential areas, setback distances should be selected to assume that a 37-dBA threshold is not exceeded at receptors. The highest infrasound measurements found in this assessment near a turbine was 90 dB at 5 Hz (with distances of less than or equal to 100 m).

NYSERDA 13.14 (17 of 34)

The literature reviewed suggests that there are no low frequency or infrasound effects at distances from turbines greater than approximately 1 km, and that infrasound at these distances and sometimes closer are comparable to natural infrasound sources in the environment.

Since BW is sited within 1 km of receptors and nonparticipating parcels the impacts of infrasound must be specified along with all statistical analysis.

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Rhodes Deficiency Letter H Exh 243- Canisteo

This is from Canisteo Wind DMM case # 16-F-0205 Post on 1/2/2019 from Rhodes application deficiency letter Pg8:

16 NYCRR §1001.19(e) requires "[a]n analysis of whether the facility will produce significant levels of low frequency noise or infrasound." The application includes estimates of the infrasound levels at the most impacted receptors, but are limited to the 16 Hz. full-octave frequency band. Please provide estimates at other fractional bands in the infrasound range below 20 Hertz.

16 NYCRR §1001.19(f) requires a statement in tabular format of the A- weighted/dBA sound levels indicated by measurements. In addition, §§19(f)(1), (2) and (3) require reporting single values of "sound level equivalent to the level of sound exceeded for 90% of the time" during daytime (7 am – 10 pm) of a year (L90) and nighttime hours (10 pm – 7 am) during summer and winter (L90), respectively.

7 Estimates are recommended down to the 0.5 Hz. fractional band. Estimates can be based on the decay rate as a function of frequency based on manufacturers information and/or a decay criteria (e.g., Tachibana). http://www.na-paw.org/Pierpont-ISO-9996.php

From page 19 of Baron Wind’s Updated to Exhibit 19

Modeling in the PNIA included extrapolated infrasonic emissions at the worst- case non-participating receptor based on the slope of low-frequency and infrasonic sound level data for the Vestas V136 3.6 MW turbine for the 16 and 8 Hz full octave bands, as well as the measured slope of infrasound from wind turbines in other research studies. Results These show sound levels, ranging from 20 to 80 dB below infrasonic hearing thresholds. As the low-frequency sound

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15-F-0122 Sokolow Post Hearing Brief levels power of the G114 and N117 are equal lower than that reported in the PNIA, this conclusion does not change.

1001.13 Exhibit 13: Real Property

Exhibit 13 shall contain:

A survey of the facility site showing property boundaries with tax map sheet, block and lot numbers; the owner of record of all parcels included in the site and for all adjacent properties; easements, grants and related encumbrances on the site parcels; public and private roads on or adjoining or planned for use as access to the site; zoning and related designations applicable to the site and adjoining properties, except that for wind facilities a map may be used instead of a survey to fulfill this requirement.

A property/right-of-way map of all proposed interconnection facilities and off-property/right- of-way access drives and construction lay-down or preparation areas for such interconnections.

A demonstration that the applicant has obtained title to or a leasehold interest in the facility site, including ingress and egress access to a public street, or is under binding contract or option to obtain such title or leasehold interest, or can obtain such title or leasehold interest.

A statement that the applicant has obtained, or can obtain, such deeds, easements, leases, licenses, or other real property rights or privileges as are necessary for all interconnections for the facility.

An identification of any improvement district extensions necessary for the facility and a demonstration that the applicant has obtained, or can obtain, such improvement district extensions. On the new Maps for BARON WINDS there are only participants.

A survey of the facility site showing property boundaries with tax map sheet, block and lot numbers; the owner of record of all parcels included in the site and for all adjacent properties; easements, grants and related encumbrances on the site parcels; public and private roads on or adjoining or planned for use as access to the site; zoning and related designations

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15-F-0122 Sokolow Post Hearing Brief applicable to the site and adjoining properties, except that for wind facilities a map may be used instead of a survey to fulfill this requirement.

The leaseholders are blended with the EASEMENTS and GOOD NEIGHBORS on the Maps.

Good Neighbor Agreements

H Exh 217 and 219

Good Neighbor agreements STATE-

Grantee's Generating Units may be closer to Grantor's residential structure(s), commercial structure(s) or property line(s) than allowed by the regulations set forth in any local Zoning, Building, Subdivision or Land Development laws,regulations and/or governmental approvals ("Setback Restrictions") and/or the Generating Units, may exceed the noise limitations that may be imposed by any local Zoning, Building,

Subdivision or Land Development laws, regulations and/or governmental approvals ("Noise Limitations").

Baron Winds appears to be removing health and safety as well as enjoyment of the land contrary to public policy.

RPL 235 b

H Exh 252 https://codes.findlaw.com/ny/real-property-law/rpp-sect-235-b.html

1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection there with in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been

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15-F-0122 Sokolow Post Hearing Brief caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.

3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court; 1

(a) need not require any expert testimony; and

(b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or lesser 2 has made a good faith attempt, where practicable, to cure the breach.

(c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, 3 the emergency tenant protection act of nineteen seventy-four, 4 the rent stabilization law of nineteen hundred sixty-nine 5 or the city rent and rehabilitation law, 6 reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder.

The Wind Leases ALSO take away HEALTH AND SAFETY!

Leases H Exh 244 and 245

H Exh 252 https://codes.findlaw.com/ny/real-property-law/rpp-sect-235-b.html

1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection there with in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous,

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15-F-0122 Sokolow Post Hearing Brief hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.

PUBLIC HEALTH AND SAFETY limits applying to Wind projects MUST BE DEFINED.

For NOISE -WHO 2018(Moreno-Caballero), AM(DOH Casadaga) and Infrasound(Rhodes in Canisteo) safety parameters must be upheld.

For setbacks-ice, fall zone, runaway zone, debris field, EMF for private property a risk assessment must be required. The public will be exposed to multiple projects such that the probability of risk increases.

All leaseholder and good neighbors should be protected in terms of public health and safety.

For nonparticipants and visitors, risks to Health and Safety should be measurably insignificant with high confidence levels.

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Modeling & Complaint resolution

Modeling should always include “worse case scenarios.”

Ambient Noise should be measure without project and a baseline after project(as per EPA).

AM should be considered in calculations as per EPA(NYSERDA 13.14); Not an after thought penalty.

Large turbines produce infrasound; it also must be measured.

Setbacks need risk assessments such that NYS determines minimum safe setbacks.

The electric facility needs to be defined in terms of setbacks and safety.

All modeling must rely upon at least one full year of MET Tower data for the whole project with a correlation factor greater than 0.7(WindPro). The amount of modeling data that can be filled in must be limited.

Modeling should be included as part of the independent PROJECT CERTIFICATION.

Continuous measurements should be provided to the DPS via SCADA such that the sponsor does not know when monitoring is occurring(blinding for reliability) along with all curtailment, NRO’s and other variables.

Municipalities should provide complaints following a specified protocol-to be determined.

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Public modeling protocol should be available using an AP on cell phones to measure and document time, location and dB as specified. Repeatability where necessary.

Other noise monitors should be available at public facilities to be loaned out at the applicants expense.

One could consider “noise spotters” similar to weather spotters used by local weather stations to signal patterns.

Any and all complaints should be filed with DPS, the municipality, the sponsor.

All nonparticipants, out of the participating municipalities, should file complaints directly to the DPS. (We, who are impacted and out of the participating area, have been discriminated against via an arbitrary municipal boundary).

Parameters for public health and safety should be made available at the Siting Board or DPS website along with the DOH. That should also include infrasound, AM, and all other public health and safety variables.

Exceedance should lead to shut down, mitigation, fines and recourse for repeated offenses.

All lease, project and good neighbor agreement, should have written disclosures for health and safety similar to other products.

No lease can negate public health and safety’ especially when signed BEFORE any DETERMINATIONS are made.

VIII. The Nature of Environmental Impacts on Cultural, Historic and Recreational Resources, Including Aesthetics and

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Scenic Values and Mitigation or Avoidance Thereof – PSL § 168(2)(c), 168(3)(c) Shadow Flicker or Shadow

There is a simple ppp on shadow that emphasizes distance as the main mitigating factor; distance is a pre construction mitigation. H Exh 237 http://windharvest.com/wp-content/uploads/2017/03/Shadow-Flicker.pdf

There is a second power point presentation that includes both shut down and distance as a form of mitigation; A pre and a post construction mitigation.

H Exh 238 https://www.umass.edu/windenergy/sites/default/files/downloads/mwwg/20 131030/K2_Management-shadow%20flicker_30-Oct-13.pdf

Including the World Bank H Exh 191 , shadow should be limited to 30 minutes as well as 30 hours as was supported by Andrew Davis Testimony for Casadaga.

In the stipulations, the maximum of 30 minutes a day was excluded so I cannot accept the stipulations as written.

Pre construction and post construction mitigation is lacking the impact upon generation.

The apparent sponsored favored mitigation is a Good Neighbor Policy. This does not protect the general public nor visitors.

It may violate existing laws to be discussed previously.

Monitoring relies upon the sponsor and not an independent professional.

Where is the acknowledgement of the NYDOT or County? Where are the accident studies with other projects?

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It behooves the Siting Board to mitigate the actual effect by proper setbacks and only rely on post mitigation shutdown when pre mitigation has failed.

Suggestion-There could be a fine or penalty for all breaches for failure to pre-mitigate.

The Visual Impact

In previous projects Windfarm Prattsburg, Prattsburg Windfarm, Cohocton and Dutch Hill, the sponsors provided computer generated visual simulation for any concerned neighbors. The Importance of Viewshed H Exh 240

Innogy’s submission to Offshore Wind on visual impact of turbines and transmission and the goal of local acceptance. http://documents.dps.ny.gov/search/Home/ViewDoc/Find?id=%7BD32235CF- DAF6-47D5-BFB6-7FC8A4D3041A%7D&ext=pdf

3. “Distance from Shore: innogy would support New York’s decision to maintain a minimum distance of 20 miles from shore. Distance from shore has proven to be one of the major indicators of public acceptance. Closer projects could yield significant objection and impede New York achieving its goals. “

7.a. “ Less intrusive physical footprint will be required on the sea-bed, across beaches, wetlands, and on land because coordinated transmission results in fewer cables. Fewer cable landings will also reduce local opposition. Coordinated transmission also allows a migration to DC systems that can be installed with fewer cables.”

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THE STATE FOCUS ON VIEWSHED H Exh 248

(1)Governor Cuomo in his State of the State in 2018, included Offshore Wind Projects. “Developed Out of Long Island Coastal Viewshed and in Close Collaboration with Communities”

“To reap these benefits, Governor Cuomo calls for the cost-effective and environmentally responsible development of up to 2.4 gigawatts of offshore wind power in the Atlantic Ocean by 2030 outside of the viewshed of the Long Island coast and in close collaboration with communities and stakeholders.”

(2)NYSERDA’s Offshore Master Plan H Exh 211

Viewshed impact was left as individual taste and a preconception of wind.

“Viewshed is an important aesthetic that is mentioned in Comprehensive Plans and, in turn should set the municipal actions, determinations and local laws.”

Exhibit 10- Consistency with Energy Plan Objectives

State Energy Plan

“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.” NY Energy Law § 6-102(5) REV

The specific short- and long-term goals of the REV initiative, as articulated on the rev.ny.gov website, include reducing GHG emissions by 40% from 1990 levels by 2030 and generating 50% of the energy consumed in New York through renewable sources by that date, as well as:

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• Making energy more affordable for all New Yorkers

• Building a more resilient energy system

• Empowering New Yorkers to make more informed energy choices

• Creating new jobs and business opportunities

• Improving existing initiatives and infrastructure

• Cutting GHG emissions 80% by 2050

• Helping clean energy innovation grow. CES

New Yorkers are permitted to purchase or generate their own energy; and adopts a number of measures designed to send market signals to encourage investment by renewable developers and others in the State’s energy sector with the goal of “transform[ing] the electric system” (PSC, 2016, p. 70). “The chief focus of the CES initiative is on building new renewable resource power generation facilities” (PSC, 2016, p. 78)

CCA SEP

Another important SEP core initiative and REV goal is building a more sustainable, modern, and resilient energy system—one that can respond to rapidly changing weather and consumption patterns, recover quickly from problems, and does not depend excessively on a single fuel source to fulfill all of its needs.

Western NYS already generates 89% Renewable.

NYISO found that approximately 9% of potential upstate New York wind energy production will be “bottled” or not deliverable because of this transmission constraint.

No offers of REC’s or formation of CCA or usage of renewables were offered to any municipalities. H Exh 226, 231,232,233

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Baron Winds Stipulation #14 eliminated use of other renewables. While it may not be apparent in current leases; it could in the future of this project. Sponsors are always changing ownership, by sale or FLIP, with new contracts signed each time; so Stipulation 14 could be used.

The windfarm projects have not promoted significant jobs locally especially when comparing it to loss of taxes for full assessments.

The 2% cap and PILOTS counteract each other leaving the area with a greater loss. H Exh 247

Steuben already has 5 projects with 3 others being reviewed for the same area. What is this doing to our agricultures directly and indirectly?

Crops loss from loss of bats in the best Ag area in upstate. H Exh 195 and 234.

Bottling causes increase in prices.

Shut downs of existing wind projects were mentioned in the first Exhibit 6 as a solution.

Overloads Baron Winds Project on the Meyer – Moraine 115 kV line, as discussed above, can be mitigated by reducing local generation, such as Canandaigua Wind or Indec units. BW Exh 5

Exhibit 5

EXHIBIT 5 Electrical Systems Effects

(d) Reasonable Alternatives to Mitigate Adverse Reliability Impacts page 3

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As discussed above in Section 5(b), in the winter peak case, the addition of the Facility could result in several high voltage violations at some buses under several contingencies. These voltage violations could be resolved by adjusting local transformer taps or changing the status of existing switched shunts in the vicinity of these buses. Overloads to the Hickling – West Erie 115 kV line were identified, but the overload could be resolved by the tripping of additional lines/transformers. Therefore, beyond tripping of additional line/transformers, load tap changes and changing the status of switched shunts, no additional mitigation measures are necessary for adverse reliability impacts in the winter peak case conditions. As discussed above in Section (b), in the summer peak case, the Facility could have an adverse impact on the Hickling– West Erie 115 kV line. The overload could be mitigated by the tripping of additional lines or transformers. Overloads Baron Winds Project on the Meyer – Moraine 115 kV line, as discussed above, can be mitigated by reducing local generation, such as Canandaigua Wind or Indec units.

VIII not ADDRESSED

FAA permit expired in the summer of 2018.

IX. CONCLUSION

Based on the foregoing, and the record, as it stands, the Individual Parties respectfully request that the Siting Board requires Baron Winds to:

1. Provide two full years of MET Data from all four MET Towers in additional to their submission of all existing MET Data.

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2. A new full year of Pre-Construction Avian, Eagle, and Bat Studies as prescribed by the USFWS and NYDEC. A dual risk assessment with statistical analysis is required by an independent statistician. The full facility area as defined by USFWS and NYDEC are to be analyzed.

3. Manufacturer’s specifications for Setback safety are required. A risk analysis should be performed with acceptable confidence levels.

4. Facility outdoor safe area shall be defined.

5. Ice throw, blade throw, turbine fall zones, runaway zones should be determined with risk assessments.

6. Noise relating to public health and safety must be determined. Annoyance noise should not be perceivable for nonparticipants.

7. Shadow Flicker that impacts health or safety should not be allowed. Turbines should be shut down. If properly sited, flicker would be minimal.

8. Viewshed considerations should be equal and equitable for NYS; not preferential.

9. Setbacks considerations of nonparticipants cannot be defined as ”seasonal.”

10. Baron Winds should offer energy relief in term of a CCA or credits to the participating municipalities.

11. No clauses for monopolizing renewable energy should be allowed.

12. Continued TYPE Certification with Annexes and log maintenance/storage records if turbines.

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13. Independent PROJECT CERTIFICATION by a qualified ISO engineering firm that assures 1-12 as well as longevity of the project for STATED Lifetime including an extreme weather certification.

Respectfully,

Alice Sokolow

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