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April 27, 2012 VIA First Class Mail and Email (secretary@dps.ny.gov) Hon. Jaclyn A.

Brilling Secretary, New York State Public Service Commission Three Empire State Plaza Albany, New York 12223-1350 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 INTRODUCTION On April 11, 2012, the New York Board on Electric Generation Siting and the Environment (Siting Board) officially issued for public comment the proposed regulations to implement provisions of Article 10 of the Public Service Law. Notice of the final proposed regulations appeared in the April 11th edition of the NYS Register, beginning a 45-day public comment period. EDP Renewables North American LLC (EDPRNA), per the Siting Committees request that comments requesting substantive changes be submitted early, respectfully submits the following comments on the regulations and appreciates the Siting Boardss consideration of EDPRNAs position. EDPRNA and its subsidiaries develop, construct, own and operate wind farms throughout North America. Based in Houston, Texas with 29 wind farms and over 10 development offices across the United States, EDPRNA has developed and operates more than 3,400 megawatts (MW) of wind farms. EDPRNA, ranked third in the United States in terms of net installed capacity, has more than 2,000 turbines in operation and has generated over 40 million hours of wind turbine operational history resulting in an offset of over 16 million tons of CO2. With over 250 employees, EDPRNAs highly qualified team has a proven capacity to execute projects and achieve goals in an environmentally responsible manner. In New York, EDPRNA has had a regional development office in Albany, and has actively developed wind projects since 2001. We currently co-own and operate the 332 MW Maple Ridge wind farm in Lewis County, own and operate the 10 MW Madison Wind Farm in Madison County, and are currently constructing the 215 MW Marble River Wind Farm in Clinton County. Additionally, we have hundreds of megawatts in the interconnection queue and look forward to constructing more renewable energy projects in New York in the years to come. EDPRNA is owned by EDP Renovveis, S.A. (EDP Renewables or EDPR), a global leader in the renewable energy sector that develops, constructs, owns and operates renewable generation facilities throughout the world. EDPR is committed to renewable energy generation as it becomes increasingly reliable and competitive due to technological advancements that lead to greater efficiencies. As part of its commitment to the environment and biodiversity,

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EDPR adopted a company-wide Environmental and Biodiversity policy emphasizing the values of environmental protection and continuous environmental improvement in all phases of its activity as a cornerstone of its business and corporate culture. EDPR, a subsidiary of Energias de Portugal (EDP), played a critical role in EDPs top ranking on the Dow Jones Sustainability Index (DJSI) Utilities Supersector in Sustainability Performance in 2011. EDPR and its subsidiaries currently own and operate assets in the United States, Spain, Belgium, Brazil, Canada, France, Italy, Poland, Portugal, Romania, and the United Kingdom. EDPRNA believes that harnessing the wind to generate electricity is fundamental to producing energy in a manner that respects the integrity of our planet. EDPRNA understands that, as a renewable energy company, it must be a responsible steward of the environment and implement policies that are consistent with its sustainability goals. EDPRNA has committed to identify and assess environmental impacts at all stages of a project cycle, to take reasonable measures to enhance positive impacts, reduce negative impacts and, to the extent practicable, mitigate significant impacts that cannot practicably be avoided or minimized. EDPRNA is committed to understanding the human, health and environmental impacts of wind projects, and continues to be an active participant and financial supporter in numerous research cooperatives like the American Wind and Wildlife Institute (AWWI) and the Bats and Wind Energy Cooperative (BWEC). We also firmly support the development of renewable energy in New York, and are active Board participants and financial contributors to the Alliance for Clean Energy New York (ACE-NY). It is from this perspective that EDPRNA offers its comments. Definitions Pg 5, Section (x): Modification. EDPRNA would encourage the inclusion of shifting electrical collection and distribution lines, overhead transmission lines and access roads within 500 feet of the original location provided that such change does not significantly increase impacts on sensitive resources consistent with the ability to adjust turbine locations within 500 feet as provided in the draft Regulations. The development of wind energy is a dynamic and fluid process by which the location of infrastructure evolves through the siting process due to a number of considerations including landowner concerns, setback requirements, transmission owner review, field changes, land control, and many other points of information that are gathered throughout the public review of a project. Flexibility to maneuver infrastructure similar to turbine locations would allow wind developers to optimize cost efficiencies and resource allocations (while allowing for landowner preferences) during the siting and construction phases while ensuring that significant impacts to sensitive resources did not take place as a result of the alterations. Moreover, EDPRNA would propose that the Regulations specifically allow for the most impactful characteristics of a turbine be submitted with an Application given the long lead times and technology advancements occurring within the industry. Requiring a wind company to identify a single turbine at the outset of the Article X process severely inhibits the ability of a wind company to pursue the use of more efficient and costeffective turbines as the project gets closer to construction. The commercial reality is that wind developers need at least a one (1) year lead time in order to place turbine

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orders to accommodate the manufacturing and delivery schedule. Additionally, turbine technology is consistently changing; as such, a model that may be available at the time of application submission may not be the best turbine model for the project from a commercial standpoint at the time of application approval and granting of the permit. Pg 7, Section (ar): Study Area. The proposed definition requires a 5 mile study radius around all generating facility components, interconnections and related facilities and alternative location sites. For wind facilities in rural areas, this is overly cumbersome. From a logistical standpoint, it would be extremely onerous to require field studies to be conducted on a 5 mile radius surrounding a project due to land access and the right of entry required in order to adequately perform the studies. Certainly, there are instances in which a 5 mile study area would be appropriate such as the Area of Potential Effect as has been used in previous architectural studies for the State Historic Preservation Office, however, extending all studies to this radius would be extremely onerous to complete. For instance, we may not have land control or access for an area that large, particularly outside of the project boundary. Accessing land outside of the project boundary will cost our company considerably more money and time as we contact additional landowners, have to execute right of entry agreements and negotiate individually with landowners. It would be recommended that the definition be changed to limit the study area to the land comprising a buffer area surrounding all planned generating facility components, interconnections and related facilities and alternative location sites as determined during scoping with Siting Board. Any additional areas outside of the study area that would need to be examined in specific studies required by the Application or allow for a radius to be negotiated during the preliminary scoping period. Public Involvement Section (d) requires the submission of a Public Involvement Program (PIP) plan in writing to the DPS for its review as to its adequacy at least 150 days prior to the submittal of any preliminary scoping statement, except for good cause. Given that the PIP will rely heavily on the public involvement requirement of the existing SEQRA process and proscriptions detailed in the Regulations, a time period of 30 days prior to submission seem more appropriate and adequate for substantive review of such a document. In the event the Siting Board requires additional time to review, a provision could be added to the Regulation affording it an extension of an additional 30 days. An extended period of review of a minimum of 150 days would hinder the overall timeline of the Article X review process and subject the applicant to potential delays in submitting a complete Application to the Siting Board. Exhibit 6 Wind Power Facilities, Exhibit 8 Electric System Production Modeling, Exhibit 14 Cost of Facilities At a high level, these sections give us significant problems. The proposed regulation requires EDPRNA to provide detailed information including confidential work product and trade secrets as well as confidential information which we are prohibited by contract from disclosing to third parties and which could allow a competitor could, among other things, reverse engineer a detailed financial model and thus gain a commercial advantage. Additionally, the cumulative information could be used to influence the review of competitive bid processes such as the New York State Energy Research and

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Development Authority (NYSERDA) solicitations for renewable energy. The requirement to include a statement of all occupied structures, barns, unoccupied structures and areas of public gathering is unrealistic and burdensome in early stages certainly, particularly if we dont have physical access to the property to perform inspections, and we are worried about the vagueness of areas of public gathering.

Cumulatively, these sections require that we provide: Exhibit 6, Pg 52, Section (d). Wind meteorological analyses demonstrating adequate wind conditions supporting the estimated capacity factor for the facility; Exhibit 8, Pg 54, Section (a)(2). Estimated minimum, maximum, and average annual spot prices representative of all NYISO Zones within the New York Control Area, both with and without the proposed facility; Exhibit 8, p 54, Section (a)(3). An estimated capacity factor for the facility; Exhibit 8, Pg 54, Section (a)(4). Estimated annual and monthly, on peak, shoulder and off-peak MW output capability factors for the facility; Exhibit 8, Pg 54, Section (a)(5). Estimated average annual and monthly production output for the facility in MWhs; Exhibit 8, p 54, Section (a)(6). An estimated production curve for the facility over an average year; (p 54, Section (a)(6)) Exhibit 8, Pg 54, Section (a)(7)). An estimated production duration curve for the facility over an average year; and Exhibit 14, Pg 62, Section (a). A detailed estimate of the total capital costs of the proposed facility, including a separately stated estimate for each interconnection, broken down in a rational manner by the Applicant into major cost components appropriate to the facility. We do not see the need for all of this data for the purpose of the Board. The Board should be able to perform an evaluation of the proposed facility without disclosure of our confidential work product and analyses. EDPRNA proposes that the detailed meteorological data be completely excluded, and that all additional details mentioned above in Exhibit 8 be either removed, limited, or at a minimum, filed under seal. Pg 55, section (c). EDPRNA is not sure what constitutes third party review and certification of the wind turbines, and does not understand what this will be used for. As such, we ask that it be clarified or removed. Exhibit 9 Alternatives Pg 55, section (b). While EDPRNA understand the need for the proposal for alternatives, there are a few areas where we believe the terms are overly vague, and lead to confusion over the amount of reporting necessary. The two sections that are vague that

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we would encourage further definition of are (6) economic considerations and (7) environmental justice considerations. While we understand the intent behind (10), the sites vulnerability to potential seismic disturbances and current and anticipated climate change impacts, we do not know what this would entail in terms of reporting and how much they will cost. As such, we encourage the Siting Board to consider limiting this section. Pg 55, paragraph 3. The Siting Board recommends for wind power facilities alternative layouts of the turbines within the site location. As the technology for wind turbines continues to advance rapidly, leading to wind turbine changes during the development cycle of a wind farm, providing alternative layouts would allow us to have fluidity as turbine selection changes. We would encourage that the regulation asks for the location of the most impactful layout given turbine technology, and that the alternative locations could be used for further technologically advanced turbines. This could expedite the review process as there would not necessarily be material modifications with alternate turbine selection turbines, and could allow for the review process to continue instead of being restarted. Exhibit 13 Real Property Pg 61, subsection (b). The Siting Board has requested that Exhibit 13 contain a survey (or map for wind projects) of the facility showing property boundaries; block and lot numbers; the owner of record of all parcels; easements, grants and related encumbrances; public and private roads; and zoning and related designations. The terms easement, grants and related encumbrances could be construed to mean all easement, grants, and encumbrances whether of record or not which encumber the property rather than just those held by the Applicant in connection with the development of the wind project. This would require the Applicant to obtain title searches at an early stage in the development process which will be quite expensive and may cause significant delays due to the challenges in obtaining title for wind projects in rural areas which consist of 50 to 100 landowners on average. In addition, the Applicant has no knowledge as to any easements, grants or encumbrances that are not of record. Additionally, in early stages of development of the project, the Applicant may not have yet entered into lease, license or easement agreements. It would be more practical to require that the map contain only the tax identification number of the parcels and ownership of the parcels. Page 61, subsection (c). The Siting Board requests a demonstration that EDPRNA has obtained title to or a leasehold interest in every parcel in the facility site. Given the number of landowners in a typical wind project, this is difficult for wind projects. Instead of full land control, we ask that we be required to have at a minimum consent to permit on locations of proposed infrastructure.

Exhibit 14 Cost of Facilities


Pg 62, subsection (a): The Siting Board requests A detailed estimate of the total capital costs of the proposed facility, including a separately stated estimate for each interconnection, broken down in a rational manner by the Applicant into major cost components appropriate. We have several concerns here, including:

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1. Commercial information is very sensitive and a potential competitive advantage we have in the market. We do not want this information to be of public record. 2. We may be contractually prohibited from disclosing pricing information under our Turbine Supply Agreements on turbine acquisition costs. 3. We may be contractually prohibited from disclosing pricing information from our Balance of Plant contracts. 4. It is quite likely that at the time of submittal of the Article X application to the Siting Board, that the project will be undergoing the NYISO study process. These studies determine the necessary configuration of the interconnection, the required system upgrades, and the cost estimates. We propose that the interconnection-related information not be necessary at the time of application, but is instead made available upon completion of the first draft of the project facility study in the NYISO class year process. Additionally, the term detailed is vague given the complexity of many interconnections. Exhibit 11: Preliminary Design Drawings Pg 58: Generally, preliminary design drawings for a wind power facility at the beginning of permitting are generally kept at 30% due to the fact that wind power projects allow for a great deal of progressive elaboration during the planning process as input is received from regulatory agencies, transmission owners, and the public. Many of the requested items of detail should be offered at a more general level with final detail to be submitted for review and determination of material change prior to construction of an approved project. Exhibit 31 Local Laws and Ordinances Pg 96, subsection (e): The draft regulations allow the Siting Board to not apply local substantive requirements that are unduly burdensome in the view of existing technology or the needs of or cost to ratepayers; however, the Applicant must request this review at the time of submitting the Application and await a decision by the Siting Board. It would be extremely difficult for the Applicant to complete the required studies and facility design without knowing if local laws would be upheld or not. Moreover, the Applicant would spend a great deal of money, time and resources completing the studies with the local requirements in place, and then supplement the studies in the event that local laws were overridden. EDPRNA proposes that consideration for the pre-emption of local laws be considered prior to the submission of an Application as many of the site-specific studies are entirely dependent on the Siting Boards decision. Exhibit 34 Electric Interconnection Pg 101: The Board requires information pertaining to all aspects of the facility interconnection. While it is understood that this information is pertinent and applicable to review of the application, it is also duplicative of information shared or determined as a result of the NYISO interconnection study processes. Items such as the type, size, number and materials of conductor would only be available on a preliminary basis since the final determination follows the design of the project.

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Additionally, underground construction, the type of cable system to be used and the design standards for that system would not normally be final at the time of application. It is quite likely that this information will be in various stages of study before, during, and after the Article X application process, and therefore we request that the requirement for providing this information reference that fact and that the information will be provided as available . We propose the NYISO information and determinations shall de facto satisfy this requirement.

Exhibit 35 Electric and Magnetic Fields Pg 102, Section (a): The Board requires the applicant to provide the electrical interconnection between the proposed facility and the existing electric transmission and distribution system, identifying every right-of-way segment having unique electric and magnetic field (EMF) characteristics due to structure types and average heights, rightsof-way widths, and co-location of other transmission facilities in the right-of-way. The specifics of the interconnection are determined via the NYISO interconnection process, and therefore, Applicant will not know the specifics required until the end of the design. Additionally, the engineering of a transmission line takes a great deal of coordination with landowners or other public utilities, requiring adjustments to the design. Additionally, please define unique EMF characteristics. EDP Renewables North America asks for consideration of the foregoing comments and. For further discussion of these comments please contact me at 713-265-0350 or bill.whitlock@edpr.com.

Sincerely,

Bill Whitlock Executive Vice President, Eastern Region EDP Renewables North America LLC