Concerned Residents of Hammond PO Box 55 Hammond, NY 13646 May 28, 2012 Honorable Jaclyn A.

Brilling, Secretary New York State Board on Electric Generation Siting and the Environment Three Empire State Plaza Albany, NY 12212-1350 Re: Case 12 – F – 0036. Rules and Regulations of Board on Electrical Generation Siting and the Environment, contained in 16NYCRR, Chapter X, Certification of Major Electric Generating Facilities. Dear Secretary Brilling, We appreciate the opportunity to once again comment as a registered stakeholder regarding proposed regulations to implement provisions of Article X of the Public Service Law. As a group of New York residents and taxpayers living in a small, rural town targeted for a renewable energy project, collectively we have invested countless volunteer hours researching the pros and cons of the complex issues that come with such development. While our initial goal was simple… assuring the local government implemented laws protecting all residents of the community... and became reality in October 2011 when our local law was passed, the Article X reauthorization no longer guarantees our town officials can meet that goal. Admittedly, we are laypeople in that we are not on anyone’s payroll, but we are fortunate in that we are comprised of individuals from a multitude of backgrounds and experiences who have invested their own time and money to research and investigate the volumes of material that continues to be documented and published. Much of it is information that will be “glossed over” or not even acknowledged by industries who profess to be concerned but have a better understanding of the potential money they stand to make rather than the potential harm they stand to inflict on the unsuspecting. We have many concerns with the impending regulations but will limit our comments to the following areas: 1) local laws, 2) noise, and 3) decommissioning.

1. EXHIBIT 31: LOCAL LAWS AND ORDINANCES
Section 1001.6(d) and Section 1001.14: New York State currently has a renewable energy objective of 30% renewable supply by 2015. Governor Cuomo has emphasized the ”New York Open for Business” program as well as announcing a “New York Energy Highway” initiative, all requiring substantial reliance on renewable energy sources. One consequence of these new energy policies has been to remove from local home rule legislation the ability for municipalities to control local siting criteria for energy projects of 25 megawatts or greater. The responsibility for determining these siting criteria now rests with the state government and its agencies. The burden of responsible siting and the protection of NY citizens living in communities slated for energy development projects now rests squarely with state government and its siting board. A consequence of this newly attained responsibility should be to minimize siting errors and project design flaws by placing the burden of proof needed to override local municipal siting laws squarely on the applicant’s shoulders.   1 

At a minimum, applicants should be required to disclose proposed project information such as capital costs, as well as meteorological information. Public subsidies are paying the bulk of the price for these projects and certainly the public is entitled to full disclosure of how their money has been spent, and the data that supports that expenditure. (Since 2009, $350,270,605 of our tax dollars from the American  Recovery  and  Reinvestment  Act  has been given to three industrial wind companies to develop six projects in our state.) While wind facilities have maintained proprietary information as secret and exclusive to the developer in the past, given current conditions, such as the economic downturn, continued poor performance in the area of face plate capacity, and an antiquated grid system not designed for intermittent power, the incentive-paying public has every right to know criteria used to determine siting. Investigation of existing data offers possible reasons the wind companies want this information classified proprietary. The NY ISO Gold Book and the NYS Renewable Portfolio Performance Report of December 31, 2011 states that New York's wind resource has proven marginal with annual average capacity factors ranging between 22-23% across all projects. According to documents from AWS TrueWind, LLC and the National Renewable Energy Laboratory used to identify locations for commercial wind development, the windy land area in NY with a gross capacity factor (without losses) of 30% and greater at 80m height above ground exists in only 4.1% of the state (http://www.windpoweringamerica.gov/windmaps/resource_potential.asp), yet the wind companies have targeted hundreds of rural towns all the while knowing there is not sufficient wind speed in the majority of these towns. Any town having researched current wind speed maps will uncover the reason the inefficient industrial wind equipment presently in use is increasing in size (496’ turbines currently being installed in Churubusco, NY) and expense. Developers have decided to find the “wind” at all costs and knowing it doesn’t exist at the 50mm level and barely at the 80m levels, they will continue to build taller. Where will it end… at 600’, 700’ or 1000’? We implore the Siting Board to do your homework and employ the same standards an informed local Town Board (who will live in the middle of a project) would have when it comes to issues such as wind speed verification and limits on height. We encourage you to maintain the criteria as well as cost sited in Section 1001.6(d) and Section 1001.14. Section 1001.31(e): Previous siting decisions prior to this new Article X legislation as well as PSC 168 (3)(e) should not be used to modify or mitigate the currently proposed Section 1001.31e. It is included to recognize efforts by localities to responsibly control local land use with siting conditions unique to their communities. As such, these conditions should be respected and any burden of proof required to change them or find them unreasonable or burdensome should rest solely with the developer/applicant. The thresholds that establish standards for project approval are minimal standards for the applicant. Any effort to impose additional requirements such as those found in a local siting ordinance need to be respected and responded to as currently written in Section 1001.31(e). Many of the standards of proof required to override local laws have come as a direct result of indiscreet and at times illegal behavior on the part of previous developers, as well as numerous complaint issues that are easily prevented if local regulations are adhered to and a “one size fits all” siting regimen is rejected. Local laws should remain the threshold of compliance. Compliance with local laws is the starting point for establishing standards regarding siting criteria for locales with such laws. Overriding local laws should be a seldom used and “last ditch” process, not a beginning strategy.

 

The argument that established wind farms that have successfully followed environmental standards relevant to the time of the project’s inception should be used as a standard for future environmental standards, is illogical. Standards are continuously evolving; they are not stagnant allowing us to ignore the latest findings because we adhere to a “golden” previously established standard. The use of a standard in place a decade ago that allowed the establishment of a wind project is history, and should not form the basis or serve as a precedent for how it is to be done today. Rural NYS residents deserve protection from situations where they have no choice but to live in close proximity of structures that are 50 stories high that bring with them many documented dangers, including noise, collapse, explosion, fire, blade disintegration, ice throw, etc. The three tests, as found in 1001.31(c) 1-3, must be maintained as the threshold for determining unreasonable and burdensome regulations found in local laws; the burden to prove same rests entirely with the applicant. Regarding Administrative Hearing Criteria: Please keep the wording in Section 1000.12(2) as currently reads “an issue or evidence is material and relevant.” We also request you consider the following: • The regulations regarding time frames and procedures set out in Section 1000.4(d) and 1000.5(c) be maintained as it is imperative public input takes place before scoping begins • Maintain Sections 1001.8, 1001.10 (b) and 1001.10(e) as written. • Maintain Sections 1001.11(c), 1001.4(c) and Article X review as written • Maintain Sections 1000.2(x and ak), Section 1000.2 ak, 1000.10(b)(2) as written.

2. EXHIBIT 19: NOISE AND VIBRATION
While the issues of noise and vibration are numerous and complex, this section includes comments regarding the Discussion and Analysis of Stakeholders Recommendations in only two areas: 1) a cap on the overall noise level 2) the elimination of a mandated monitoring of the C-weighted 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. Cap on Overall Noise Level: Regarding a cap on overall noise level, the Discussion and Analysis reads as follows:
The draft below relies heavily on the DEC guidance and attempts to satisfy most of the 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.

As stakeholders, we were part of a group of seven who were specifically asked by the PSC to provide additional testimony in the area of noise during the development of the Draft Regulations for Article X. We wanted to be certain we were providing the most accurate information available that would best assist the PSC in developing the safest and most effective regulations for ALL NYS citizens. As a result, our group -- on behalf of the people of New York and at considerable expense -- hired Dr.   3 

Paul Schomer, a world-renowned acoustician, to review the noise section of the Article X draft regulations. Dr. Schomer took this task very seriously. Using an unbiased approach, he made important recommendations on the Draft Regulations regarding the section on noise, suggesting a rational sound limit paralleling The World Health Organization's guidelines - considered the Gold Standard in the world today. His suggestion of a night-time noise cap of 35dBA offered legally-defendable recommendations that would allow the PSC to develop state-of-the-art regulations ensuring needed protections for all NY State residents. (See attached Appendix for complete recommendations) Dr. Schomer even went so far as to include for the benefit of the PSC, a look at the soon-to-be-released national acoustical standards that are in the final stage of development and approval. Unfortunately, it appears the recommendations and advice of the Standards Director of the Acoustical Society of America and recognized international leader in the area of environmental noise ended up on the cutting room floor and were not acknowledged in the present draft regulations. Dr. Schomer is not alone in his recommendation of stricter noise levels as he conducted a thorough search of the standards and guidelines that are currently employed throughout the acoustical industry and found that other colleagues feel the same and are concerned about the health and safety of those exposed to noise pollution. As recently as March of this year, an editorial posted by Hanning and Evans 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. By virtue of the fact the industrial wind companies appear to be targeting unsuspecting rural areas for development and that past noise studies in these areas conducted by non-biased acousticians indicated night-time ambient noise levels of 30dBA or lower, in our opinion, establishing a limit on what the population of these areas should be expected to tolerate is not unreasonable. Low Frequency Noise: The following comments on low frequency noise were offered 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 C-weighted/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.

Regarding the issue of low-frequency noise, we have to question the failure of the Draft Regulations to require the incorporation of C-weighted/dBC sound levels as it gives the appearance of placing financial gain above the health and safety of residents. From what we understand, in speaking with qualified   4 

acoustical engineers, measuring A and C-weighted noise levels can be done very easily using the same computer generated software thus negating the expense the wind developers claim to purport. One would have to wonder if this is an attempt to manipulate data or an unwillingness to acknowledge the presence of a community health issue that will only continue to grow in proportion to the placement of 50-story high structures near population areas. To refer to Dr. Schomer once more, he maintains the following opinion regarding low frequency noise: There is a rich history of peer-reviewed scientific papers, mainly in the Journal of Lowfrequency Sound and Vibration, documenting the adverse health effects low-frequency noise has on a significant minority of the population. These low-frequency sufferers can be quite debilitated by the noise. To ignore the low-frequency noise, the C-weighting and these sufferers is arbitrary and capricious. After reviewing the articles, Wind Turbine Noise: What Audiologists Should Know written by Punch, James, & Pabst and published in Audiology Today, (2010), and Responses of the Ear to Infrasound and Wind written by Salt and published in Hearing Research (2010), the educators and psychologists in our group are concerned about what this might mean for the increasing numbers of children with auditory and vestibular issues as well as the aging population and those with health challenges. The following paragraph from the first article summarizes our concerns regarding noise pollution: None of these unwanted emissions, whether audible or inaudible, are believed to cause hearing loss, but they are widely known to cause sleep disturbances. Inaudible components can induce resonant vibration in solids, liquids, and gases—including the ground, houses, and other building structures, spaces within those structures, and bodily tissues and cavities—that is potentially harmful to humans. The most extreme of these low-frequency (infrasonic) emissions, at frequencies under about 16 Hz, can easily penetrate homes. Some residents perceive the energy as sound, others experience it as vibration, and others are not aware of it at all. Research is beginning to show that, in addition to sleep disturbances, these emissions may have other deleterious consequences on health. It is for these reasons that wind turbines are becoming an important community health issue, especially when hosted in quiet rural communities that have no prior experience with industrial noise or urban hum. To preserve the health and safety of NY residents who may become potential victims of low frequency noise produced by electrical generating facilities, we encourage you to reinstate the requirement for applicants to conduct C-weighted noise measurements for all situations listed in Exhibit 19.

3. EXHIBIT 29: DECOMMISSIONING
The Decommissioning requirements and processes are as critical to the evaluation and approval process of energy producing projects as any other aspect, and are often relegated to a secondary status because of their lack of immediacy in the project sequence. Further, because of both the lack of frequent and current experience and the difficulty in anticipating and valuating future events, it is easy to minimize the scrutiny of this portion of the project review. In our opinion, the criteria established in Section 1001.29 are inadequate and lack any definitive mechanism by which to judge the applicants proposals. It appears to lack any standards for ongoing performance that would trigger decommissioning or a defined basis by which to judge the adequacy of the applicant’s statements. It is important that the State, the applicant and the affected community fully understand and have confidence in the process of decommissioning that has the potential of leaving   5 

behind a project that could result in enormous economic, viewscape and ecological challenges. There are far too many examples of abandoned industrial sites that have become substantial financial and/or health burdens on the state and local residents. This can occur because of the lack of appropriate forethought, properly defined standards and/or a rush to initial approval without consideration of the long-term consequences. It is imperative that the government of New York State does not find itself in these circumstances. We would like to see the following issues addressed: • Detailed and established criteria by which to evaluate applicants decommissioning proposal • Define criteria when the decommissioning process would be initiated • Regular reviews of the decommissioning process and cost. If salvage values are used in the estimate, they must be updated frequently and documented in detail including the costs of preparing and removing the spoils • For wind-powered generation facilities, often sited on third party properties and closely comingled with local, non-participating resident's private homes or businesses, decommissioning standards and process must be demanding and convincing to protect the interests of all New York State’s citizens • Any change in ownership must be carefully scrutinized to assure continued understanding, commitment and adequate resources for implementation of any decommissioning process After much time spent investigating the issue, the Town of Hammond Wind Committee made these recommendations to the local town board that we feel are worthy of your consideration: • Any wind turbine that is nonfunctional or inoperative for a continuous period of one year be removed at the developer's cost • A decommissioning plan submitted by the developer must include the estimated decommissioning costs, how the estimate was determined, the method of ensuring available funds for decommissioning and the method that will be used to keep those costs current • 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 York-licensed financial institution In sum, we have outlined what we feel are three critical aspects for your scrutinized attention. We understand this was an arduous task and we thank you for your time and consideration of the comments we have laid before you. We have confidence your interest in protecting the residents of this state will take precedence as you attempt to balance the requests of those who stand to gain financially against those who will live with the consequences. Sincerely, Article X Stakeholder: Concerned Residents of Hammond Mary Hamilton, President www.croh.org APPENDIX attached: Proposed Text 1001.19 Exhibit 19: Noise developed by Dr. Paul Schomer   6 

March 5, 2012 To Whom it may concern: I am Paul Schomer, Ph.D. and P.E., and I have reviewed the document entitled: Proposed Text: 1001.19 Exhibit 19: Noise. As a part of my consulting, during parts of 2006 and 2007, I was the expert for the court in a case dealing with whether a noise ordinance was unconstitutionally vague (Judge Stanley Latreille, Livingston County Circuit Court, Re: Green Oak Township v. State of Michigan, Case No. 04!20782!CZ).’’ My resume’ is attached to this brief “white paper.” Basically, I find the document to be brief to the point that it well could be “unconstitutionally vague.” As a first example, the present clause (b) is far too loose as to the measurement position on the property. For a large enough tract of land, one person could measure at 1000 ft from the Energy Producer (EP) and another could measure at 3000 ft from the EP. These 2 measurements of the ostensibly same device and condition would likely be very different. So, I have proposed a new clause (b) with sub!parts (b1) and (b2), and I have recommended the use of the new, soon to be ANSI/ASA standard on measurement of the ambient in low!noise zones such as those found in quiet rural areas. Clauses (d), (e) and (f) all seem to say the same thing within their individual bounds. There is little specificity to the points where EP sound levels are calculated, and likewise, little specificity as to where on the parcel measurements are taken. So, changes to the text that improve the specificity are recommended. Clause (e) is perhaps the most egregious example of the lack of specificity. It basically says, “we are going to establish noise criteria and limits on a case!by!case basis, with no indication as to how this will operate, why the criteria should or should not change, specifications as to the qualifications of the presenter, etc.” Here we recommend the use of both A!weighted and C!weighted SEL, and we provide a fixed target. These simple changes greatly improve readability, and specificity of the rule. Attached is a marked up version of the State's proposal and a clean version of the revised proposal. Sincerely,

Paul Schomer, Ph.D., P.E. Member, Board Certified; Institute of Noise Control Engineering

 

Proposed Text: 1001.19 Exhib i t 19: Noise Exhibi t 19 shall conta in: A study of the no i se impacts of the construct io n and operat ion of the facil i ty , related f acil iti es and ancillary equ ipment , shall be performed us ing computer noise modeling, and verified by measurement 1 , including the following tasks : (a) Applicant shall provide a map o f the study area show ing the l ocat i on o f sens itive sound receptors in relation to the facility, related facilities and anci llar y equipment (including any re l ated substat i ons ). The sensit ive sound receptors shown shall include residences , outd oor public facilities and area s, hospitals, schools and other noise-sensitive receptors . (b)An eva lu at i on of the preconstruct i on ambient sound l eve l s shall be perfo rmed by a combinat ion of measurement and modeling, and the appli cation sha ll include certification by an independent acoustical eng ineer as to the predicted A- and C- weighted 2 Energy Project (EP) sound levels at potent i a ll y impacted residentia l sites . The firm with which the engineer is assoc ia ted sha ll be a member of the National Counci l of Acoustical Consu l tants (NCAC ) wi th a specialty in environmental noise , and the independent acoustical engineer shall be a Member , Board Certified of the I nstitute of Noise Contro l Engineering of the USA. A-weighted background community noise leve l s shall be based on measured hourly L90 levels gathered continuously for at least 2 weeks. The day shall be divided into three time periods: (1) daytime , the hours from 7 AM to 7 PM, (2) evening , the hours from 7 PM to 10 PM , and (3) nighttime , the hours from 10 PM to 7 AM. The measurement shall be conducted in accordance with the procedures of ANS I /ASA S1 2 . 9- 1 00. The background shall be measured i n accordance with the genera l posit i on o f ANS I Sl .1 3 , and reported by time period , and computed in accordance with ANSI/ASA S12 . 9-1 00 . 3 ,4
1

Modeling is generally valid in urban and suburban areas for everyday transportation noise sources (e.g., trains, planes, and motor vehicles.) There is no modeling software for the widely dispersed intermittent noise sources in a rural area. Although modeling looks like an inviting option, it is not as advanced for rural areas.

A-weighting cuts out the low and high frequency energy, much like the ear does for low or moderate noise levels. In contrast, C-weighting, measures all energies from 20 Hz to almost 20 kHz. It is sensitive to the low frequencies because it does not eliminate the low frequencies like A-weighting does. So, it is more sensitive to the low frequencies by many dB, and therefore, it would be slightly more audible than A-weighting.
2

3The Acoustical SOciety of America (ASA) is the developer of standards for environmental noise assessment and control in the United States under the umbrella of the American National Standards Institute(ANSI), and the ASA has been developing standards since 1930. The ASA standards office is just now in the process of balloting a standard on this topic, entitled:

4 There are standardized procedures for detecting the presence of prominent discrete(pure) tones. Without a standardized procedure such as how this clause is written, this could be ruled unconstitutionally vague because, without a doubt, two recognized practitioners could honestly arrive at different answers for the same physical

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(bl)

Parcels 3 acres or smaller 5

The A- weighted background measurements shall be made along the line from the nearest proposed EP to the d welling in question. If the parcel o f land has no dwelling , then the line shall terminate within 25 ft. of the center of the parce l. The actual pos i t i on of the mi crophone shall be within the property in quest i on and shou l d be with i n 25 feet to either side o f the li n e , no closer than 50 feet from the property bou ndary , and no closer than 25 feet from the house or any othe r structures . If positioning wi thin this " measurement box " is not possible because of u n ique site conditions such as the posit i on being underwater or the property being too small , then the unique conditions sha l l be ful l y documented and an alterna t e position selected and j ust i fied (b2 ) Parcels larger than 3 acres The A- weighted backgroun d measurements sha ll be made along the l ine from the nearest proposed EP to the dwell i ng i n question . If the pa r ce l of land has no dwelling the n the line shall terminate within 50 ft . of the center o f the parce l . The actual position o f the microphone shall be within the property in ques t ion , shall be within 50 to 500 feet of the dwe ll in g or with i n 0 to 500 feet of t h e parcel center , as applicab l e , shoul d b e within 50 feet to either s i de of t h e li ne , sha l l be no closer than 50 ft . from the house or any other structu r e , and shall be no closer than 50 feet from the property boundary . If positioning with in this " measurement box" is not possib l e because of uniqu e sit e conditions such as the position being underwate r or the property being too small , then the unique con ditions shall be fully documented and an a l ternate position selected and justified . The microphone sha l l be no c l oser than 50 ft . from the house or any other structures . Background measurements s h all be conducted throu ghout t he area using suf fi cient sites to generally character i ze the background in various areas of the community such as along busy r oads , in town , near the r i v er , and in the countryside . The town , using the services of the town engi n eer , shall contract for t he background mea su rements and determination of background

signal. That having been sa id, it is not clear how the presence of a tone would be used since the comparison under the New York rules, is whether or not the new noise is more or less than 6 dB above the ambient. I have never seen or heard mention made of tones with respect to the NY 6 dB above ambient rule .

5

The clause (b) that was removed was far too loose as to the position of the microphone. For a large enough parcel of land, one person could measure 1000 feet from the EP and another could be 3000 feet from the EP and still meet these requirements . Again it is too vague . The present paragraphs (bl) and (b2) provide much tighter and acoustically better provisions.

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levels for general areas of the township such that every parcel is ass i gned a background leve l for daytime , evening , and nighttime. The EP applicant shal l pay for the contract to measure and determine background leve l s . This payment shall include the cost of the contrac t, the cost of l etting the contract , and the cost of supervising the contractor . The number of measurement sites and study plan shall be developed jointly between the town and the contractor with input from the public and from the applicant . (c) The A- and C-weighted construction noise l evels of the EP shall be predic ted in accordance with clause b, excep t only cons idering prediction and using no measurements. (d)6 The starting point for predict ing A- and C-we i ghted leve ls of an EP at potential l y impacte d residential parce ls shall be the manufacturer-supplied oc tave band sound power levels as measured by the manu fa cturer in accordance with app li cable i nternat ional standards . At a minimum, the octave band data sha ll in c lude the 10 octave bands with nomina l center frequenc i es rang i ng from 16 Hz to 8000 Hz (see ANSI Sl. 6-1 984) , and the sound power levels f or these bands sha ll be tabulated in the report . Any data not avai lable from the manufactu r er shall be estimated from f ie ld measu rements on like equipment already in use. Any such field measurements shall be described fu ll y and document ed in the report . Predi ctions for certain times of the day such as nighttime may use manufacturer cert ifi ed l ower sound power levels that correspond to a reduced output power sett i ng of t he EP, if the application warrants and aff i rms that this reduced power sett i ng always will be used d u ring the time of the day in q uestion (e.g., nighttime) . For sites at whi ch A- weighted background measurements were performed , the Aand C-weighted EP sound level predictions s hall be made at t he same point and for the nearest EP. For all other sites , a prediction point sha ll be selected t h at is as clos e as possible to the nearest EP while being within the " measurement box " de li neated above. The octave band sound pressure levels shall be predicted at the prediction point for at least each of the four nearest proposed EP using the sound propagation algorithms given by ISO 96 1 3- 2 , wi th Gs(the source region) , Gr (the rece i ver region) , and Gm (the mi ddl e reg i on )in Table 3 of ISO 9613 - 2 with Gs = 0 , Gm= 0 , and Gr = 0 . 9 . Ca l cu l ations for the 16 and 3 1.5 Hz octave bands s h all use the 63 Hz octave band algorithms contained in ISO 96 13- 2 with no factor incl uded for air absorption . No sound barrier shall be i nc luded in the calc u l atio ns. For each such prediction , when the manufacturer da ta is un -weighted, the A- and C- weighted l evels shall be calculated by app lying the A- and C- wei gh ting values f rom ANSI Sl . 4 , then by add i ng the weighted mean square pressures , and final l y by converting ba ck to decibels . The overall predicted A- and Cweighted levels shall be the sum of the i ndivi dual levels added on the basis o f the mean s quare pressures. If the manufacturer's data are already Aweighted , such as the data supplied in accordance with IEC 614 00 -11 f o r wind generators, then the A-weighted levels is just the sum o f the individual octave band predictions added on t he basis of mean square p r essures. The C-

6

The former clause (e) is covered by this new clause (d) .

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10 

weighted levels shall be calculated by applying the inverse of A-weighting and then C- weighting to the predicted octave band leve l s. These resultant Cwe i ghted octave band l evels are then added on the bas i s of mean square pressures . (e) The equivalent level (LEQ) gene rated by an EP shall not e xceed the limi ts listed in Table 1 when measured at the nearest off-site dwelling existing at the time of appl i cation, or for which a building permit has been issued , or for parcels zoned residential. 7 , 8 If the A-we i ghte d background sound pressure leve l, without the EP, i s within 5 dB of some or all of the limits in Table 1 or exceeds some or al l o f the limi ts in Table 1 , then the A-weighted cr i t e rion to be applied to the EP application for those affected limits shall be the A-weighted background level +5 dB . The remaining limits that are more than 5 dB above the A-weighted background sha l l remain as given in Table 1. Note: For example , during daytime , if the background is less than or equal to 40 dB, then the limit is 45 dB . However , if the background is greater than 40 dB , say 44 dB , then the applicable EP limit is the background level plus 5 dB which calculates to 49 dB for this example.

Table 1 . EP noise l i mits at residential receivers Daytime
7 AM to 7 PM

Evening
7 PM to 10 PM

A-weighted l evel (dB) C- weighted level (dB)

45 63

40 58

Nighttime 10 PM to 7 AM 35 53

(f) The predicted levels of the proposed EP shall be compared with the criteria given in Table 1. The prediction location sha ll be at any res i dential p roperty as given in Clause (e) and at any point on this residential property at which the background community noise may be measured per Clause (b). (g ) The EP proponent sha ll perform an identi f ication and evaluat i on of reasonable nois e abatement measures f or construction activities , i ncluding a description of a complaint-handling procedure that shall be provided during the construction period.

At this point, th is proposed regulation should be comparing the predicted fP levels with an EP criterion sound level. Without specified criteria there is virtually no chance that two acoustical consultants, one worki ng for the EP and one working for the community, will come to the same conclusions, leading me to believe that the law as presently proposed could be found to be too vague. The substitute crite ria and their use wiillikely eliminate the possibility of finding this ru le to be unconstitutionally vague.
7

8

A description of the noise standards applicable to the facility are given in t he new paragraph (~).

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(h) The EP proponent shall perform an identification and evaluation of reasonable noise abatement measures for the final design and operation of the facility including the use of alternative technologies, alternative designs, and alternative facility arrangements. (i) The EP proponent shall perform an identification of post-construction operational controls and other mitigation measures that will be available to address reasonable complaints, including a description of a complainthandling procedure that shall be p r ovided du ri ng periods of operation. (j)The town, using the services of the town engineer, shall be responsible for and shall contract for any enforcement measurements. The contractor shall be a member of the National Council of Acoustical Consultants (NCAC) with a specialty in environmental noise, and the consultant's project leader shall be a Member, Board Certified of the Institute of Noise Control Engineering of the USA. The duration of any EP measurement shall be 30 minutes. During the 30-minute period, the equivalent level (LEQ) generated by the EP shall be measured. The measurement location shall be at any residential property as given in Clause (e), and at any point on this residential property at which the background community noise may be measured per Clause (b). Measurements shall be entirely within the appropriate time period, e.g., during nighttime for nighttime enforcement, and the EP shall operate continuously during the 30-minute measurement. The microphone shall be situated between 4 and 4.5 ft. above the ground. Measurements shall be conducted within the general provisions of ANSI Sl.132005, and using a meter that meets at least the Type 2 requirements of ANSI Sl.4 and Sl.4A-1985 (R2006). The instrument noise floor shall be at least 10 dB below the lowest level measured. A calibrator shall be used as recommended by the manufacturer of the sound level meter. The fundamental level of the calibrat or and t he sensitivity of the sound level meter shall be verified annually by a laboratory using procedures traceable to the National Insti t ute of St a n d a rd s and Technology. A wind screen shall be used as recomme nded b y the sound level meter manufacturer. An anemometer shall be used and shall have a range of at least 5 t o 15 miles per hour (2.2 to 6.7 meters per second) and an accuracy of at least ± 2 miles per hour (± 0.9 meters per second). A compass shall be used to measure wind direction to at least an 8-point resolution: N, NE, E, SE, S, SW, W, and NW.

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Measurements shall be A- weighted , or, alternatively , in one - third-octave bands . For A- weighted measurements, the uncertainty (tolerance) of measurements shal l be 1 dB for a type 1 meter and 2 dB for a type 2 meter. For one - third- octave-band measurements , the meter shall meet the type 1 requirements of ANSI S12 . 4 and S12.4a-1985 (R2006 ) , and the uncertainty of measu r ements sha l l be 5 dB in each and every one - third- octave band . For all measurements , the surface wind speed, measured at a 1.5-m height, shall be less than 5 m/s . All measurements shall be corrected for the background on the basis of mean square pressures . For one - third-octave - band measurements, each one-thirdoctave band shall be individually corrected for the background in that band. That i s , both the EP (wh ich always includes the background) and the background alone shall be measured in each one-third- octave band. For either A- weighted data or one-third- octave band data , the background shall be measured during a like period when the EP is not operating, and Table 2 shall be used to correct for the background, by band in the case of one - th i rdA like period inc l udes the same or like locat i on , like octave - band data . surface wind speed and direction , like time of day and day - of - the - week (e . g . , Monday- Thursday night , Friday or Saturday night , or Sunday night ) , etc. Table 2 . Correction in dB that l evel measurement (which always because of the background sound level of the EP alone (See Note
~,

shall be subtracted from the EP sound includes the background sound level) so that the result is just the sound 1 below) . 3 - 4 3 5 - 6 2 7

difference (dB) K, correction (dB )

< 3
Notes 2 , 3

1

10

>10 0

Notes 1. This table provides a simple correction to measurements o f EP sound in the presence of the background. For example , the sound of an EP (along with the background sound which is always present ) is measured as 40 d B (A) , and the background sound level alone (without the EP) is measured as 34 dB(A). Then~ , the difference in decibels is 6 dB (first row , third column) , and the corresponding correction sha ll be 2 dB (second row , third co l umn) . That i s , 2 dB shall be subtracted from the measured 40 dB(A) l evel , and it is adjusted to and reported as 38 dB(A) . The same procedure is followed in each band for one - third - octave - band data . 2. When using directly measured A-weighted levels , if the d i fference between the EP sound level (plus backg round sound level) and the background sound level alone is less t h an 3 dB , then it shall not constitute a violation of this chapter. When using measured one - third- octave - band data, if the difference between the EP sound pressure level (plus background sound pressure level) and the background sound pressure leve l alone, each in the same one-third- octave band, is less than 3 dB , then the EP level f or that one - third- octave band shall be set to zero .

3.

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(k) For wind power facilities, such additional noise studies and analyses necessary to address their unique noise and vibration characteristics shall be conducted by the EP proponent. The computer noise modeling values used for wind turbines shall fairly match the unique operational noise characteristics of the particular wind turbine models and configurations proposed for the facility.

Alternatives: Modification of prior Article X regulations and reliance on stipulation process to determine specific studies applicable to particular proposals. More prescriptive noise measurement, modeling and performance requirements could be developed. Cap on overall noise level could be set, caps on incremental noise could be set, or caps could be set to operate as triggers for noise elimination or mitigation.

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