April 25, 2012 Submitted Electronically Hon. Jaclyn A.

Brilling Secretary, New York State Public Service Commission Three Empire Plaza Albany, New York 12223-1350 RE: Comments on Proposed Draft Article 10 Regulations

Dear Secretary Brilling: edr Companies (edr) is pleased to provide the following comments on the draft Article 10 Regulations. By way of background, edr has been working with the New York State wind industry since the late 1990s, when we first began conducting environmental impact studies for proposed wind power projects. We have permitted more than 1400 MW of wind power in the state, and have also led (or provided significant assistance to) the permitting efforts for wind projects in Ohio, Massachusetts, Vermont, New Hampshire, Pennsylvania and West Virginia. We are a New York State-based small business that has played a major role in wind power development throughout the Northeast, including conducting critical reviews of wind energy permit applications on behalf of local municipalities. In addition, our experience with the energy industry dates back to the licensing of conventional power plants under the previous Article X legislation. Thank you in advance for considering the following comments and suggested modifications to the draft Article 10 Regulations: Comment 1. Per 1000.4(d), a proposed public involvement program plan must be submitted to DPS for review at least 150 days prior to submittal of a preliminary scoping statement. Requiring 150 days (approximately 5 months) to pass between submittal of these two documents appears excessive and seemingly adds unnecessary time to the overall process. Comment 2. Per 1000.4(e), within 30 days DPS shall make written comments on the proposed pubic involvement program plan, and thereafter within 30 days the applicant shall submit the final pubic involvement program plan that either incorporates DPS comments or provides written explanation as to why DPS comments were not incorporated. Suggested Modification: Since incorporating DPS comments is optional, it is suggested that 1000.4(e) be eliminated from the regulations, and 1000.4(d) be revised to require submittal of the public involvement plan at least 90 days prior to submittal of a preliminary scoping statement. Comment 3. Building on Comment 1 above, 1000.5(c) requires submittal of a preliminary scoping statement no less than 90 days prior to filing an application. Therefore, according to 1000.4(d) and 1000.5(c), a total of

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240 days (approximately 8 months) must pass before an application can be submitted. Again, this appears to be excessive and unnecessarily inefficient. Comment 4. As indicated in 1000.8(a)(8), if a request for a Water Quality Certification (WQC) does not accompany an application, it shall be filed and served and notice of it shall be given in the same manner as an application pursuant to sections 1000.6 and 1000.7. Suggested Modification: Since the impacts associated with the WQC (i.e., discharge into Waters of the U.S.) would be set forth and evaluated in the Article 10 application, it is suggested that the requirement for a notice (pursuant to section 1000.7) in this instance be deleted from the regulations, unless the U.S. Army Corps of Engineers also requires public notice prior to issuance of their permit. Comment 5. When discussing Intervenor Funding in the Introduction (page -16-), it is stated, intervenors provide, at a minimum, the professional qualifications of the expert However, 1000.10(c)(1)(iv) indicates that request for funds shall contain to the extent possible, the name and qualifications of each expert Suggested Modification: To maintain consistency with the intent of the recommendations provided by the stakeholders, the phrase to the extent possible should be deleted from 1000.10(c)(1)(iv). Comment 6. Section 1001.4(b) requires provision of a map of any existing overhead and underground major facilities for electric, gas or telecommunications transmission within the study area. Suggested Modification: Please define major facilities as used in this context. Comment 7. Section 1001.4(f) requires provision of a map of all publicly known proposed land uses within the study area, while 1001.4(c) also requires depiction of any proposed land use plans for any of these parcels. Suggested Modification: delete the land use mapping requirement from 1001.4(c). Comment 8. Section 1001.4(o) indicates that all aerial photographs shall reflect the current situation. Suggested Modification: The following should be added to the end of this sentence: based on the most recent publicly available aerial imagery. Otherwise, strict compliance with this requirement suggests each applicant would have to initiate photogrammatic mapping services for the entire study area, which would typically require flown vertical aerial photography, photo control survey, digital photogrammetric mapping, and generating digital orthophotography, all of which would needlessly and significantly increase the cost of preparing and submitting an application. Comment 9. Section 1001.6(c) requires documentation regarding the status and results of third-party review and certification of wind turbines proposed. Suggested Modification: Since very few (if any) wind power developers are certain of the turbines to be used during the application phase of a given project, it is suggested that this requirement be deleted and rather become a post-certificate compliance condition.

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Comment 10. When discussing Level of Detail in the Introduction (page -8-), it is stated, [stakeholder] concerns have been heard and acted upon. The proposed regulations have been enhanced to make it clear that construction-level information is not required for an application However, the proposed regulations set forth at 1001.11 still require a significant amount of construction-level detail that must be prepared by a state-licensed engineer, architect or landscape architect, including very detailed site plan requirements (e.g., location of parking areas and sidewalks), construction operations plan, grading and erosion control plans, a landscaping plan, a lighting plan, and architectural drawings. Indicating that such construction-level detail may be labeled preliminary or not for construction purposes does not eliminate the need (and cost) to prepare such information. The concerns of the stakeholders (primarily the significant cost associated with preparing such plans/details before an applicant has an approval justifying such cost) are not addressed by the changes in the proposed regulations. Furthermore, it does not appear that such detail is necessary for the Board to make its required findings and can be left to the post-certificate compliance phase. Suggested Modification: Change the title of Exhibit 11 to Preliminary Design Information and Discussion, and indicate that an applicant must provide sufficient information and discussion to allow the Board to adequately evaluate potential impacts associated with construction operations, grading and erosion control, landscaping/tree removal, lighting, and architecture. Comment 11. The first sentence of Section 1001.17 should be edited to read, If applicable, Exhibit 17 shall contain similar to Section 1001.16. Comment 12. Similar to Comment 11 above, site plans showing security features for the construction and operation of a given facility, as required by 1001.18(a) and (b), should be left to the post-certificate compliance phase. Comment 13. It does not appear as if the requirement set forth at 1001.18(d) is applicable to all power generating facilities, such as wind power project. Suggested Modification: provide a list of power generating facility types that would require consultation with the New York State Division of Homeland Security and Emergency Services. Comment 14. Section 1001.19(b) requires ambient pre-construction baseline conditions to be evaluated during winter and summer. Suggested Modification: Remove the requirement for winter and summer evaluations if a qualified professional can demonstrate that a worst-case noise impact analysis can be performed through use of data collected during a single season. Comment 15. Section 1001.19(c) requires an applicant to evaluate construction noise levels using computer modeling software, which would be dependent on numerous variables that are nearly impossible to determine during the permitting phase with any certainty (e.g., specific type of construction equipment and exact location of such equipment over time). Suggested Modification: Section 1001.19(c) should require an applicant to describe the construction noise levels expected at the nearest property boundary, and such

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description should address dynamiting activities, operation of earth moving equipment, driving of piles, erection of structures, truck traffic, and installation of equipment. Comment 16. Section 1001.19(f)(1) through (6) should be edited according to any modification made in relation to Comment 15 above. Comment 17. Similar to Comment 11 above, the construction-level detail required in Section 1001.21 is not typically prepared during the permitting phase of a wind power project and would require the expenditure of significant cost associated with preparing such plans/details before an applicant has an approval justifying such cost. Impacts to geology, seismology and soils can be meaningfully described (and in some instances quantified) without requiring construction-level detail. Suggested Modification: The following should be post-certificate compliance requirements: a site plan showing existing and proposed contours at 2-foot intervals; a preliminary calculation of the amount of fill, gravel, asphalt, and surface material; and a preliminary calculation of cut material or spoil to be removed from the site. Comment 18. Section 1001.22(a) requires an identification and description of the type of plant communities on the facility site, the interconnections, and adjacent properties based on field observations and data collection. Suggested Modification: Delete the phrase and adjacent properties because such property will typically be privately owned and access to such property cannot be guaranteed or granted by a private facility developer. Comment 19. Section 1001.23(a)(2) requires a map based on publicly available information showing all areas within the study area delineating all groundwater aquifers and groundwater recharge areasand the location, depth, yield and use of all public and private groundwater wells As indicated in the proposed regulations, the study area for a wind power project is a 5-mile radius from the proposed facility, and therefore a significant amount of seemingly unnecessary data would have to be obtained and mapped to conform to this requirement. Suggested Modification: Add a statement that indicates wind power projects shall provide a map of such information, based on publicly available data, within 500 feet of the facility or its interconnections. Comment 20. Section 1001.23(a)(3) requires an analysis and evaluation of potential impactson drinking water suppliesincluding private wells within a one mile radius of the facility site. Suggested Modification: It should be clarified that private well data may be obtained from publicly available information. Comment 21. Similar to Comment 11 and 18 above, Section 1001.23(c) requires preparation of a Stormwater Pollution Prevention Plan (SWPPP), which necessarily requires construction-level detail. Suggested Modification: The SWPPP should be a post-certificate compliance requirement.

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Comment 22. Section 1001.24(a)(3) indicates that visibility of above-ground interconnections and roadways shall be determined by viewshed analysis. Suggested Modification: Delete roadways from this sentence because these features cannot be meaningfully evaluated by a viewshed analysis. Comment 23. Section 1001.24(b)(1) indicates a line of sight (LOS) profile shall be completed for resources of statewide concern located within the study area. However, because wind power projects include numerous turbines there is uncertainty regarding the number of LOS profiles per resource. Suggested Modification: A single LOS profile per resource should be completed to the nearest potentially visible turbine as determined by viewshed analysis. Comment 24. Section 1001.24(a)(4)(vi) appears to require submission of building/structure inventory forms to OPRHP and DPS for review prior to completing viewpoint selection. However, based on our experience it is not practical to expect all potentially eligible buildings/structures to be identified and inventoried in an acceptable format, and then submitted to OPRHP and DPS for review prior to viewpoint selection. Building on Comments 1 and 3 above, this proposed process would add additional time to the overall preparation/analysis efforts necessary prior to submittal of an application. Suggested Modification: This requirement should be edited to indicate that a list of potentially eligible buildings/structures should be provided to OPRHP and DPS staff, and if OPRHP and DPS staff determine that a building/structure should be included as a selected viewpoint, the applicant shall be notified within 30 days. The opportunity to prepare and submit the above comments and suggested modification is appreciated, and I would like to thank you in advance for your consideration. Sincerely,

Ben Brazell Principal, edr Companies