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COAX Comments on Case 12-F-0036 “Article X”May 28, 2012

Hon. Jaclyn A. BrillingSecretary, New York State Public Service CommissionThree Empire State PlazaAlbany, New York 12223-1350VIA 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 theEnvironment contained in 16 NYCRR, Chapter X, Certification of Major Electric Generating FacilitiesDear 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 “HomeRule” strong, in force and as intended by the New York State Constitution since 1894. We have connecteddozens 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 draftregulations as they relate to siting of energy facilities. The New York State Public Service Commission isemployed 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 State’s residential and businessconsumers, 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 andVibration, 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 Rulethroughout New York State.Sincerely,Robert E. Aliasso, Jr. – Member COAXraliasso@twcny.rr.com+1 (315) 771-97538748 State Route 178Henderson, NY 13650

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COAX Comments on Case 12-F-0036 “Article X”May 28, 2012COMMENT 1 – Local Laws and Ordinances

OVERVIEW of Article X Draft Regulations deficiency towards Local Laws and Ordinances

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 membershipshould be increased to include the locality of the siting’s State Senator, State Assembly person, CountyChairperson, Town Supervisor and two at-large voting members from the Town of the proposed siting. Thiswould 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 importantlyad 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 toaccepting municipalities zoning, comprehensive general plans, local laws and ordinances as written. We suggestthat 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 theSiting 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 orthe needs of or costs to ratepayers whether located inside or outside of suchmunicipality. In other words,

unless the Siting Board finds a local ordinance to beunreasonably burdensome

, the Siting Board itself applies the ordinance … Article 10and the draft regulations do not prohibit the Siting Board’s consideration of applicantrequests to override local laws at a point early on in the Article 10 process. Thatbeing said, however, applicants should consider that often the facts necessary forthe Siting Board to determine whether to waive a local law will require thedevelopment 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 Boardrendering 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 burdensomein a rural community like Henderson, NY. However, the local law in Hyde Park was deliberated and passed as alocal 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 shouldhave to bear the burden of paying for all legal costs to litigate this infringement of Home Rule-- a right assigned tomunicipalities 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 isunreasonable, it should not have been accepted by the State for filing. It is disappointing that Home Rule is beingso 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 tooperate in compliance with these local substantive requirements, all of which shallbe binding upon the applicant, unless the Board elects to not apply them by findingthat, as applied to the proposed facility such are unreasonably burdensome in viewof the existing technology or the needs of or costs to ratepayers whether locatedinside or outside of such municipality.”From Sub article (e1) (e2) and (e3) “(1) for requests grounded in the existingtechnology, that there are technological limitations (including governmentallyimposed technological limitations) related to necessary facility component bulk,height, process or materials that make compliance by the applicant technicallyimpossible, impractical or otherwise unreasonable:(2) for requests grounded in factors of costs or economics (likely involving economicmodeling), that the costs to consumers associated with applying the localsubstantive requirement outweigh the benefits of applying such provision; and(3) for requests grounded in the needs of consumers, that the needs of consumersfor the facility outweigh the impacts on the community that would result fromrefusal 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 todefend. 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 constitutionalrights granted to municipalities and their existing Local Laws and Ordinances.Once a variance is provided to transform Local Laws by other than the municipality’s Town Board or ZoningBoard of Appeals, the process of Town Planning and Zoning Enforcement is placed into disarray and most likelyviolates a municipality’s 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 enforcementof same. Local planning should not be done at the State level; there is great care and reason at a local level placedinto preservation of that municipality’s character, planning and ordinances. We find the ability of the SitingBoard 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 themunicipality are greater than those of the municipalities’ citizens is very untenable and unconstitutional. Thesiting of an energy facility should not be considered an event of statewide significance and need that would justifyan action that would entirely supersede constitutionally granted Home Rule rights afforded to municipalities.

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