COAX Comments on Case 12-F-0036 Article X

May 28, 2012

Hon. Jaclyn A. Brilling Secretary, New York State Public Service Commission Three Empire State Plaza Albany, New York 12223-1350 VIA First Class Mail and Email (Secretary@dps.ny.gov) Comments to the New York Board on Electric Generation Siting and the Environment Case 12-F-0036 In the Matter of the Rules and Regulations of the Board on Electric Generation Siting and the Environment contained in 16 NYCRR, Chapter X, Certification of Major Electric Generating Facilities Dear Secretary Brilling: Enclosed for filing are the comments of Coalition on Article X (COAX), regarding the draft regulations of Article 10 of the Public Service Law. COAX is a statewide grassroots coalition, which connects municipalities on a unified position to keep Home Rule strong, in force and as intended by the New York State Constitution since 1894. We have connected dozens of towns and counties throughout New York State to submit Resolutions that oppose the loss of any Home Rule. In a thorough review by New York State taxpayers, we have collected and assembled comments of the draft regulations as they relate to siting of energy facilities. The New York State Public Service Commission is employed by and for NYS taxpayers and ratepayers, as per stated in the PSC website's posted Mission Statement, "to ensure safe, secure, and reliable access to electric... services for New York States residential and business consumers, at just and reasonable rates." We also stress that justice and reason be applied to the regulations of Article 10, especially in the following areas of the draft regulations: Local Laws and Ordinances, Noise and Vibration, Decommissioning, Socioeconomic/Property Value Guarantee and Public Comment Period. We thank you for the opportunity to express our concerns and offer comments to protect and preserve Home Rule throughout New York State. Sincerely, Robert E. Aliasso, Jr. Member COAX raliasso@twcny.rr.com +1 (315) 771-9753 8748 State Route 178 Henderson, NY 13650

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COAX Comments on Case 12-F-0036 Article X COMMENT 1 Local Laws and Ordinances OVERVIEW of Article X Draft Regulations deficiency towards Local Laws and Ordinances

May 28, 2012

The current draft regulations are written and inferred that public input is merely procedural and a task to check off. How much real weight can/does the public hold, since the Siting Board has limited local public input into real procedural matters and hearings? Public involvement into procedural matters is a must. One method to strongly emphasize local laws and ordinances is local involvement. The ad hoc membership should be increased to include the locality of the sitings State Senator, State Assembly person, County Chairperson, Town Supervisor and two at-large voting members from the Town of the proposed siting. This would provide six people from the affected municipalities balanced by five Albany appointees an 11 member Siting Board is very reasonable. Local representation should be given more weight and input. Most importantly ad hoc members should have the same voting rights as the Permanent Siting Board. The proposed regulations mention -- but do not emphasize -- that strong consideration shall be provided to accepting municipalities zoning, comprehensive general plans, local laws and ordinances as written. We suggest that the regulations require projects under review place high priority on compliance with local comprehensive plans and zoning laws. COMMENTS to Discussion and Analysis of Stakeholders Recommendations Local Laws The default is that the local substantive requirement is not supplanted unless the Siting Board elects to not apply it by finding that, as applied to the proposed facility, the requirement is unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. In other words, unless the Siting Board finds a local ordinance to be unreasonably burdensome, the Siting Board itself applies the ordinance Article 10 and the draft regulations do not prohibit the Siting Boards consideration of applicant requests to override local laws at a point early on in the Article 10 process. That being said, however, applicants should consider that often the facts necessary for the Siting Board to determine whether to waive a local law will require the development of a record. Specifically, Article 10 expressly recognizes the ability of municipalities to defend their local laws; therefore, it will be likely that some level of evidence and litigation regarding the issue will be necessary prior to the Board rendering a determination Municipalities across New York State have diligently considered local factors, comprehensive planning and the public health safety and welfare of its citizens when developing local laws and ordinances. To other municipalities simple items like a strong noise ordinance in Hyde Park, NY for example, may seem burdensome in a rural community like Henderson, NY. However, the local law in Hyde Park was deliberated and passed as a local law. It should not simply be dismissed as burdensome. The cost for municipalities to defend their comprehensive general plans, zoning laws and ordinances deemed burdensome by others is extremely unreasonable. If a local law is to be negated, the State or Applicant should have to bear the burden of paying for all legal costs to litigate this infringement of Home Rule-- a right assigned to municipalities by the NYS Constitution since 1894.

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COAX Comments on Case 12-F-0036 Article X May 28, 2012 Local Laws are passed at the municipal level and filed with the Secretary of the State. If the Local Law is unreasonable, it should not have been accepted by the State for filing. It is disappointing that Home Rule is being so easily dismissed in these draft regulations of Article X.. We find this portion of the draft regulation untenable, unreasonable and quite frankly unconstitutional. COMMENTS to PART 1001 CONTENT OF AN APPLICATION 1001.31 Exhibit 31 From Sub article (d) and (e) the Board must find that the facility is designed to operate in compliance with these local substantive requirements, all of which shall be binding upon the applicant, unless the Board elects to not apply them by finding that, as applied to the proposed facility such are unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. From Sub article (e1) (e2) and (e3) (1) for requests grounded in the existing technology, that there are technological limitations (including governmentally imposed technological limitations) related to necessary facility component bulk, height, process or materials that make compliance by the applicant technically impossible, impractical or otherwise unreasonable: (2) for requests grounded in factors of costs or economics (likely involving economic modeling), that the costs to consumers associated with applying the local substantive requirement outweigh the benefits of applying such provision; and (3) for requests grounded in the needs of consumers, that the needs of consumers for the facility outweigh the impacts on the community that would result from refusal to apply the local substantive requirement. The Siting Board is charged with determining conflicts between the proposed development project and local laws. Without the expanded Siting Board, as commented above, this is a right only the municipality should be tasked to defend. The cost of the defense should be borne through the intervenor fund at the sole cost of the Applicant. This check and balance will place stronger restrictions on Applicants trampling over the Home Rule constitutional rights granted to municipalities and their existing Local Laws and Ordinances. Once a variance is provided to transform Local Laws by other than the municipalitys Town Board or Zoning Board of Appeals, the process of Town Planning and Zoning Enforcement is placed into disarray and most likely violates a municipalitys comprehensive plan or planned development districts. Much stronger provisions must be placed into the Article X regulations which not only preserve Home Rule, but allow local municipal enforcement of same. Local planning should not be done at the State level; there is great care and reason at a local level placed into preservation of that municipalitys character, planning and ordinances. We find the ability of the Siting Board to over-rule local laws that are burdensome to be completely unreasonable. The inference that the rights of certain consumers and ratepayers, most of which may not reside in the municipality are greater than those of the municipalities citizens is very untenable and unconstitutional. The siting of an energy facility should not be considered an event of statewide significance and need that would justify an action that would entirely supersede constitutionally granted Home Rule rights afforded to municipalities. ****************************************************************

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COAX Comments on Case 12-F-0036 Article X COMMENT 2 NOISE AND VIBRATION

May 28, 2012

The comments in this section address two concerns contained in the discussion and analysis of stakeholders recommendations regarding noise: low-frequency noise and the lack of a cap on the noise level. Our comments apply to all energy facilities, but reference data is primarily from studies associated with widely studied sound emissions and health effects caused by industrial wind turbines. Low Frequency Noise: The following is stated in the Discussion and Analysis of Stakeholders Recommendations: Many stakeholders representing individuals and municipalities concerned about wind noise requested the measurement and estimation of C-weighted/dBC sound levels as an aid to addressing their concerns about low frequency noise or infrasound. Many stakeholders representing wind developers opposed requiring the incorporation of Cweighted/dBC sound levels as an unnecessary expense because they believe that issues related to low frequency noise or infrasound can be analyzed adequately without such expenditure. The draft regulations would require applicants to provide an analysis of whether the facility will produce significant levels of low frequency noise or infrasound, without specifically requiring the measurement and estimation of C-weighted/dBC sound levels, but do not preclude a case-by-case determination requiring the measurement and estimation of C-weighted/dBC sound levels in a proceeding in an appropriate circumstance. Low frequency noise or infrasound has the potential to be a significant issue in the siting of electric generating facilities. The discussion and analysis quoted above leads one to believe the bottom line is money and responsibility. Allowing energy generating companies to provide only an analysis of whether the facility will produce significant levels of low frequency noise without requiring the measurement of C-weighted/dBC sound levels sends a message this issue is insignificant and not worthy of monitoring. When energy projects move into residential areas, noise tends to become an issue. Many studies have been conducted with results that, in our opinion, cannot be ignored and point to the need for continued monitoring and study. More specifically, controversy appears to exist with regard to industrial wind more than many other generating facilities, or at least the related research appears to be increasing at a faster rate. An overview of a recent study entitled: The Bruce McPherson Infrasound and Low Frequency Noise Study (2011) conducted by acoustical engineers, Stephen Ambrose and Robert Rand, states the following: The study confirms that large industrial wind turbines can produce real and adverse health impacts and suggests that this is due to acoustic pressure pulsations, not related to the audible frequency spectrum, by affecting the vestibular system especially at low ambient sound levels. The study results emphasize the need for epidemiological and laboratory research by medical health professionals and acousticians concerned with public health and well-being. This study underscores the need for more effective and precautionary setback distances for industrial wind turbines. It is especially important to include a margin of safety sufficient to prevent inaudible low-frequency wind turbine noise from being detected by the human vestibular system. The most important item of interest regarding this study is the fact while conducting the measurements needed to complete their findings, both Ambrose and Rand experienced the very health issues they were investigating.

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COAX Comments on Case 12-F-0036 Article X May 28, 2012 Concern over this issue is not new. The following is an excerpt from a recent article entitled: Wind Turbine Infra- and Low-Frequency Sound: Warnings Signs That Were Not Heard (2012), published in the Bulletin of Science Technology & Society by acoustical engineer, Richard James: NASA and the Department of Energy funded a series of research studies from the early 1980s to about 1991 on wind turbine noise. The two primary researchers, Hubbard and Shepherd (1990), reported the following: Wind turbines produce primarily infra- and low-frequency sound. Sound propagates from wind turbines at a decay rate half that of common point sources. Wind turbine noise travels farther than other sounds. Wind turbine noise will be a significant indoor noise problem due to room resonance and a dominance of infra- and low-frequency acoustic energy. Dr. Alec Salt, Professor of Otolaryngology at Washington University School of Medicine has done extensive research on our physiological responses to low-frequency noise. An excerpt from the overview of his recent article: Responses of the Ear to Infrasound and Wind (2010) published in Hearing Research, states the following: Our recently published paper reviews well-established publications about low frequency hearing by leading scientists in the field of auditory physiology. It concludes that low-frequency sounds that you cannot hear DO affect the inner ear. The commonly held belief that if you can't hear it, it can't affect you is incorrect. As some structures of the ear respond to low frequency sound at levels below those that are heard, the practice of A-weighting sound measurements grossly underestimates the possible influence of these sounds on the ear. Studies that focus on measurements in the audio frequency range (i.e. excluding infrasound) will not provide a valid representation of how wind turbine noise affects the ear. The high infrasound component of wind turbine noise may account for high annoyance ratings, sleep disturbance and reduced quality of life for those living near wind turbines. Researchers Henrik Mller and Christian Sejer Pedersen of the Department of Acoustics at Aalborg University in Denmark have also studied this phenomena and make the following comments in their recently published study: Low-frequency Noise From Large Wind Turbines (2011) published in the Journal of the Acoustic Society of America. As wind turbines get larger, worries have emerged that the turbine noise would move down in frequency and that the low-frequency noise would cause annoyance for the neighbors Even when A-weighted levels are considered, a substantial part of the noise is at low frequencies, and for several of the investigated large turbines, the one-third-octave band with the highest level is at or below 250 Hz. It is thus beyond any doubt that the low-frequency part of the spectrum plays an important role in the noise at the neighbors. The residents of New York State deserve to be protected from situations that can pose potential health threats, especially those that remain under-investigated. We feel without specifically requiring mandated measurement and estimation of C-weighted/dBC sound levels, you are fostering the development of serious health risks for a defenseless segment of the population. To quote the former U.S. Surgeon General William Stewart (1969), "Calling noise a nuisance is like calling smog an inconvenience. Noise must be considered a hazard to the health of people everywhere." Cap on Noise Levels We feel a cap on the overall noise system is imperative. According to the discussion and analysis of stakeholder comments found below, the siting board appears, in our opinion, unclear in their position as they fail to establish a guideline.
The draft below relies heavily on the DEC guidance and attempts to satisfy most of the
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COAX Comments on Case 12-F-0036 Article X May 28, 2012 requests that were made. Some stakeholders representing individuals and municipalities concerned about wind noise requested a cap on overall noise level to be set at 35dBA at night. They argue that an overall cap is supported by the World Health Organization and would eliminate concerns about improperly characterizing baseline levels. Some stakeholders representing wind developers appear to support a form of a cap on incremental noise under the DEC guidelines that would look for heightened scrutiny of any increase of 6dBA or more and elimination or mitigation of any increase of 10dBA or more. The draft below does not place either form of cap leaving limits to a case-by-case determination by the Siting Board. This is unacceptable given the documentation that continues to accumulate regarding those living near energy facilities. In their article: Evaluating the Impact of Wind Turbine Noise on Health-Related Quality of Life (2011), Shepherd, McBride, Welch, Dirks, and Hill stated the following: A thorough investigation of wind turbine noise and its effects on health is important given the prevalence of exposed individuals, a nontrivial number that is increasing with the popularity of wind energy. For example, in the Netherlands it is reported that 440,000 inhabitants (2.5% of the population) are exposed to significant levels of wind turbine noise. Additionally, policy makers are demanding more information on the possible link between wind turbines and health in order to inform setback distances. Our results suggest that utility-scale wind energy generation is not without adverse health impacts on nearby residents. Thus, nations undertaking large-scale deployment of wind turbines need to consider the impact of noise on exposed individuals. Along with others, we conclude that night-time wind turbine noise limits should be set conservatively to minimize harm There is a plethora of evidence supporting a cap on noise levels including information the World Health Organization put forth in their most recent publication Night Noise Guidelines for Europe (2009): For the primary prevention of subclinical adverse health effects related to night noise in the population, it is recommended that the population should not be exposed to night noise levels greater than 40 dB of L night, outside during the part of the night when most people are in bed. 40 dB L night, outside, can be considered a health-based limit value of the night noise guidelines (NNG) necessary to protect the public, including most of the vulnerable groups such as children, the chronically ill and the elderly, from the adverse health effects of night noise. In 2009, Ambrose and Rand were concerned enough about the negative comments from residents living near wind turbine sites and the lack of research on this issue so they conducted their own evaluation, the results of which were included in their recent article entitled: Wind Turbine Noise: An Independent Assessment, Noise Complaints Predictable (2010) in which they state the following: Wind turbine noise levels below 35 dBA may be audible, but will result in the community reactions ranging from no reaction, although noise is generally noticeable to sporadic complaints. Whereas from 35 to 45 dBA, there is a predicted adverse community response ranging from widespread complaints or single threat of legal action to severe threats of legal action or strong appeals to local officials to stop the noise. Similarly, the Pedersen & Waye (2004) data predict 6 percent to 85 percent of the community will be highly annoyed, with the associated adverse health effects of psychological distress, stress, difficulties to fall asleep and sleep interruption. Wind turbine noise levels louder than 45 dBA will result in the highest negative community response of vigorous community action. In like manner, the Pedersen & Waye (2004) data predict, 100 percent of the community highly annoyed from wind turbine noise with the associated adverse health effects already noted. Dan Driscoll, a recognized acoustic professional with the NYDEC recommended 33 dBA in 2009. The Hayes McKenzie Group recommends 33 dBA in 2006 when the impulsive character is audible. Dr. Michael Nissenbaum of Fort Kent, Maine conducted an independent medical control study for residents
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COAX Comments on Case 12-F-0036 Article X May 28, 2012 living near the Mars Hill wind turbines, with a recommendation for a minimum separation distance of 7,000 feet. This distance was found by the authors to correlate with wind turbine noise level versus distance measurements for noise levels in the mid- to high 30s (dBA) depending on number of wind turbines and other factors. A recently published editorial in the British Medical Journal (2012), stated the following: A large body of evidence now exists to suggest that wind turbines disturb sleep and impair health at distances and external noise levels that are permitted in most jurisdictions, including the United Kingdom. Sleep disturbance may be a particular problem in children, and it may have important implications for public health. When seeking to generate renewable energy through wind, governments must ensure that the public will not suffer harm from additional ambient noise. Robust independent research into the health effects of existing wind farms is long overdue, as is an independent review of existing evidence and guidance on acceptable noise levels. It would be in the best interest of the Article X Siting Board to take a more scientific approach in limiting noise and vibration within Article X for the health and safety of the residents of this state. **************************************************************** COMMENT 3 SECTION 1001.29 SITE RESTORATION AND DECOMMISSIONING The PSC needs a decommissioning plan to protect the property owners and the host community in the event that the energy facility owners abandons the facility, leaving the liability with the residents of the town. The PSC needs to be diligent in terms of its decommissioning requirements and ensure potential developers and not taxpayers are liable for the costs of decommissioning the facility. Any decommission funding should contain a replenishment obligation, meaning the host community would be reimbursed for any costs surpassing the upfront cash requirement listed in the original performance agreement, if the cost to decommission the project exceeds the upfront cash amount funded by the developer. There should be a decommissioning fund and escrow agreement between the developer and the town that is the host for the energy facility. The host community should have control of all decommissioning funds thus insuring the funds are available when needed to remove the non-functional turbines. Having the developers decommissioning cash upfront in the hands of the host community prior to erecting the facility is the very best protection for the town. Consideration should be made for annual escalation in decommissioning costs; the degree to which property, roadways and the viewscape are to be restored; and the final disposition of clean-up of both overhead and underground transmission lines, solid waste, whether generated from supplies, equipment, parts, packaging, or operation or maintenance of the energy facility, including old parts and equipment. Regarding wind energy, in January 2011 the Town of Hammond, NY Wind Committee made these recommendation: Any wind turbine that is nonfunctional or inoperative for a continuous period of one year be removed at the developers cost. A decommissioning plan submitted by the developer must include the estimated decommissioning cost, how that estimate was determined, the method of ensuring available funds for decommissioning and the method that will be used to keep those costs current.

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COAX Comments on Case 12-F-0036 Article X May 28, 2012 A decommissioning fund of 125 percent of the full cost of decommissioning (including salvage value) and restoration be kept in the form of cash on deposit with the town or cash held in escrow in a New Yorklicensed financial institution. **************************************************************** COMMENT 4 SECTION 1000.15 ACCEPTANCE OF A CERTIFICATE Sub article (a) Upon issuance of a final decision by a Board granting a Certificate, an applicant shall, within 30 days after the issuance of such decision, file either a written unqualified acceptance of the Certificate or a petition for rehearing, but not both Currently a municipality does NOT have the right to appeal but the developer does. We recommend that both developers and local municipality have the right to appeal, or no one does. The justice availed to one, should be afforded to the other. **************************************************************** COMMENT 5 SECTION 1001.27 SOCIOECONOMIC EFFECTS Amend to require that a detailed analysis/study be prepared and filed which evaluates and assesses the likely impact which the siting of the facility in the community will have on property values in the immediate area and a provision that there be a fund established to hold harmless any affected property owners from any diminution in the worth/value of their property. Article X regulations should include a property value guarantee. It seems clear from the language of the draft regulations that the PSC does not wish to disadvantage communities with the onus of being regional energy producing areas for all of New Yorks energy. We applaud this effort to spread the responsibility of energy generation throughout the different regions and to consider environmental justice. We suggest that the economic studies be more balanced. Currently the regulations only weigh the possible benefits of new jobs. The regulations would be greatly enhanced if they also considered loss of tourism, loss of property values, and any adverse effects on the character and quality of the current community, due to the siting of an energy facility. Our recommendation is stronger consideration for loss of character and quality of the municipality as described above and below. The government and the energy industry have long maintained energy facilities have no adverse effects on property values, however there is growing substantial evidence to the contrary. Home owners and small businesses need protection from decisions made by the New York State Board on Electric Generation Siting and the Environment (Siting Board) that would drastically devalue private property by allowing an energy plant to be sited in close proximity. One way to guard against property devaluation and mitigate any potential loss in value is with a property value guarantee (PVG), the equivalent of FDIC insurance. There is substantial data now available to support the fact that an energy facilities, especially wind energy facilities will devalue nearby property. Massive industrial scale wind development definitely has the potential for "significant" negative property value impacts. The New York State Board on Electric Generation Siting and the Environment (Siting Board) should ensure there is some provision to protect landowners from potential property devaluation.
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COAX Comments on Case 12-F-0036 Article X

May 28, 2012

Regulations for energy development under Article X should require that the developer guarantee property values of private homes and small businesses within a radius of two miles from the project site. Leading professional appraisers and realtors demonstrated property value losses of 25 percent and more for distances up to two miles from the facility. Failure to include a property value provision within the Article X regulations means that the energy company, and by extension, the New York State Board on Electric Generation Siting and the Environment (Siting Board), is forcing New York State residents to bet their homes that property values will not be affected by a closely sited energy facility. That is not a fair or just burden to place on any citizen and homeowner. The New York State Board on Electric Generation Siting and the Environment (Siting Board) needs to remove the risk of catastrophic financial loss from non-participants, and place the risk where it is appropriate--on the energy company who proposes to surround residential homes and businesses with unwanted industrial development. The Takings Clause of the 5th Amendment states that serious sustained physical invasions of property requires payment of compensation equal to the difference between market value prior to and after invasion. This applies to energy facilities use of private land and the effect on non-participating property owners in regards to a property value, specifically devaluation of property. There should also be consideration of a municipalitys ability to protect/guarantee property value through its zoning ordinance. The New York State Board on Electric Generation Siting and the Environment (Siting Board) should require bonding of the Property Value Guarantee. Putting a Property Value Guarantee requirement into the Article X regulations to protect both the citizens of a municipality from personal loss and the town from citizens seeking remedy or remuneration for damage or economic loss from an energy facility is an essential safeguard. Not only is the property owner suffering a financial loss so is the municipality in terms of residents demanding lower assessments as a result of the energy facility. Lower assessments mean a lower tax base. The fiscal impact and impact on local property tax base can be expected to undergo significant and justified pressure for assessment reductions on residences, again, within distance ranges studied that reflect significant value losses. **************************************************************** COMMENT 6 SECTION 1000.5 PREAPPLICATION PROCESS Amend sub article (c) (5) to provide that any preliminary scoping statement should be filed in a public library in the community/municipality where the project/facility is to be sited, or, if that community/municipality does not have a library, in the nearest library in any neighboring/adjacent community/municipality. The timeline of events is far too quick for any meaningful public involvement or accurate environmental studies. As an example, the DEC recommends bird and bat studies take at least "a minimum of one year of preconstruction studies for all proposed wind energy projects. http://www.dec.ny.gov/docs/wildlife_pdf/finwindguide.pdf For those studies to be truncated to less than a year means the Siting Board is operating on inadequate information. We recommend companies have to perform, at minimum, one year of studies. Seasonal variation and weather patterns make any study of birds, bats, and wild life of less than one year substandard. It also protects the Siting Board from making decisions based on poor information. Additionally, public comment periods and responses to intervenor funding should be expanded to not less than 60 days. This permits Town Boards, which frequently meet only once a month, to learn, discuss with other members,
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COAX Comments on Case 12-F-0036 Article X May 28, 2012 and explore issues. At least elected community leaders should have the opportunity to do some due diligence on behalf of their constituents. It also allows time to determine which laws to defend in court and what studies need to be done with intervenor funding. We recommend that all public responses be given a minimum of 60 days. We recommend that the developer have done at least one years environmental studies before the pre-application phase and that those studies continue through the application process.

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