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 1 15-F-0122 Sokolow Post Hearing Brief 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. 2 15-F-0122 Sokolow Post Hearing Brief 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 3 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 4 15-F-0122 Sokolow Post Hearing Brief 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 5 15-F-0122 Sokolow Post Hearing Brief 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. 6 15-F-0122 Sokolow Post Hearing Brief *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). 7 15-F-0122 Sokolow Post Hearing Brief 4.