NEW YORK STATE BOARD ON ELECTRIC GENERATION

SITING AND THE ENVIRONMENT

CASE 16-F-0559 – Application of BLUESTONE WIND, LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the New York State Public Service Law for the Bluestone Wind Project

RESPONSE TO PETITIONS FOR REHEARING ON BEHALF OF BLUESTONE WIND, LLC

Submitted by:

YOUNG/SOMMER LLC

James A. Muscato II, Esq. Elizabeth M. Morss, Esq. Jessica Ansert Klami, Esq. Attorneys for Bluestone Wind, LLC Five Palisades Drive Albany, NY 12205 jmuscato@youngsommer.com Phone: (518) 438-9907 ext. 243 Dated: January 30, 2020

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RESPONSE TO PETITIONS FOR REHEARING BLUESTONE WIND, LLC (CASE NO. 16-F-0559)

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................1 I. BCCR’S Stay Request Should be Denied ............................................................................1 II. Standard for Rehearing ........................................................................................................3 III. BCCR’s Petition for Rehearing Should be Denied ..............................................................4 A. BCCR’s Objections Relating to Issues that it Has Not Specifically Briefed Must

be Rejected ..................................................................................................................4 B. BCCR Has Failed to Show Either that the Siting Board Committed an Error of

Fact or Law or that New Circumstances Warrant a Different Determination than that Contained in the Order .........................................................................................7

1. The Certificate Holder’s Public Participation Efforts Satisfied Article 10 ........7 2. The Evidence in the Record Supports the Siting Board’s Decision to Grant

the Certificate .....................................................................................................8 3. The Siting Board has not Violated BCCR’s Right to Due Process .................11 4. The Siting Board Properly Declined to Consider Local Laws Enacted by the

Town of Sanford After the Close of the Evidentiary Hearing .........................11 5. The Siting Board Has Not Committed Errors of Law or Fact as Identified

by BCCR ..........................................................................................................20 a. BCCR Waived its Objections to the Siting Board’s Conclusions

Regarding Grid Reliability .........................................................................20 b. The Record Supports the Board’s Findings Relating to Eagles .................21 c. The Record Supports the Board’s Findings Relating to Sound .................21 d. The Record Supports the Board’s Findings Relating to Visual Impacts ...23 e. The Record Supports the Board’s Finding that the Project will not

Impact Environmental Justice Communities .............................................25 IV. DeHaan’s Petition for Rehearing Should be Denied .........................................................26 A. DeHaan Improperly Raised Issues for the First Time in Her Brief on Exceptions,

Barring Rehearing on Those Issues Now..................................................................27 B. DeHaan’s Attempt to Incorporate Arguments from Her Brief on Exceptions Must

be Rejected ................................................................................................................27 C. The Record Supports the Board’s Findings Relating to Ecological Impacts............28 D. The Record Supports the Siting Board’s Findings Relating to Impacts to

Groundwater, Surface Water, Streams and Wetlands ...............................................30 E. The Record Supports the Siting Board’s Findings Relating to Public Health and

Safety—Shadow Flicker, Noise and Vibration .........................................................33 F. The Record Supports the Siting Board’s Findings Relating to Cultural, Historic

and Recreational Resources ......................................................................................34 G. The Record Supports the Siting Board’s Findings Relating to Visual Impacts ........34

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H. The Record Supports the Siting Board’s Findings Relating to Transportation Impacts ......................................................................................................................35

V. DOAS’s Petition for Rehearing Should be Denied ............................................................36 A. The Record Supports the Certificate Holder’s Take Estimates ................................37 B. The Record Supports the Certificate Holder’s Avoidance, Minimization, and

Mitigation Measures .................................................................................................38 C. The Siting Board’s Order is Not Procedurally Improper ..........................................40 CONCLUSION ..............................................................................................................................41

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INTRODUCTION

Bluestone Wind, LLC (“Bluestone Wind” or “Certificate Holder”) submits this response

in opposition to the Broome County Concerned Residents (“BCCR”), Heather D. DeHaan

(“DeHaan”), and Delaware Otsego Audubon Society’s (“DOAS”) Petitions for Rehearing

submitted pursuant to New York Public Service Law (“PSL”) § 170. For the reasons set forth

below, the Siting Board (“Siting Board” or “Board”) should deny the Petitions. The Petitions fail

to identify any errors of law or fact or new circumstances warranting rehearing or different findings

or determinations by the Siting Board. Instead, the Petitions rehash arguments raised previously,

which lack merit and were properly rejected by the Board. See PSL § 170; 16 NYCRR § 3.7(a)

and (b); 16 NYCRR § 4.10(d)(2).

Additionally, the Siting Board should deny BCCR’s request for a stay. First, BCCR’s

request is not properly sought. Second, even if BCCR had properly sought a stay, it has failed to

satisfy their burden required by the regulations to justify the stay.

ARGUMENT

I. BCCR’s Stay Request Should be Denied

A petition for rehearing does not stay or excuse compliance with the Siting Board’s order.

16 NYCRR § 3.7(d). BCCR has not attempted to argue, let alone satisfied, its burden for a stay

“of any construction work whatsoever, and a stay of the review of compliance filings,” and any

such request should be denied. (BCCR Petition p. 31). A party requesting a stay bears the burden

of satisfying the test for injunctive relief: (1) a likelihood of success on the merits; (2) irreparable

harm in the absence of a stay or injunction; and (3) a balance of the equities in its favor.1 Because

1 See, e.g. Case 15-M-0127, et al., In the Matter of Eligibility Criteria for Energy Service Companies, “Staff’s Response to Request for Stay” (filed June 1, 2017); Application by Besicorp-Empire Development Company, LLC for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a 505 Megawatt, Combined Cycle Cogeneration Plant in Rensselaer, Rensselaer County, “Order Granting Stay” (issued Jul. 3, 2013)

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BCCR fails to argue, and therefore cannot demonstrate that it has satisfied the test, BCCR’s request

for a stay should be denied.

No part of BCCR’s rehearing petition appears to address, either explicitly or implicitly, the

three-part test for obtaining a stay or, for that matter, any other grounds on which a stay of any

aspect of this proceeding should be granted. Even if BCCR’s Petition addressed the required three-

part test, BCCR would not be able to demonstrate that it satisfies the test for a stay.

With respect to establishing a likelihood of success on the merits, merely rehashing

arguments presented to and rejected by the Hearing Examiners and Siting Board, as BCCR had

done in its Petition, does not establish a likelihood of success. In fact, because the Petition does

not identify any mistakes of law or fact or new circumstances justifying re-hearing, BCCR has not

established any grounds for relief, let alone a likelihood of success on the merits. Although the

Siting Board need not examine the other required showings on a stay request, BCCR’s request

nevertheless fails.

BCCR has also not explained how it will be irreparably harmed by the absence of a stay or

injunction. To meet this test, BCCR must demonstrate a specific showing of harm, not general

disagreement with the decision. BCCR has not established how the initial phases of construction

of the Facility could not be addressed either through monetary compensation or other “cures” if

their position prevails. 2 Moreover, construction of the Facility must comply with Certificate

Conditions and will be overseen by the New York State Department of Public Service (“DPS”)

and environmental monitors, and impacts associated with construction will be limited to the

maximum extent practicable, thereby obviating any claims by BCCR of “irreparable harm.”

2 Incidentally, BCCR also seeks a “stay” of compliance filings. Even assuming this is relief that could be granted by the Siting Board, BCCR has failed to allege, let alone show, how the mere filing and approval of a compliance filing would cause them irreparable harm.

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Finally, BCCR does not demonstrate how the balance of equities are in its favor. To the

contrary, the balance of equities strongly favors the Certificate Holder. The Certificate Holder

has, over the course of several months, made significant investments of time and money necessary

to compile the necessary plans, contracts and other pre-construction investments to proceed with

the activities authorized under the Certificate. The Certificate Holder has significant contractual

obligations to and construction schedules which require it to enter into construction and supply

contracts to meet deadlines and construction windows, and may have otherwise significantly

changed its position and made commitments in reliance on the Certificate Order. In view of Article

10’s overall purpose of expediting consideration and interconnection of major electric generating

projects, especially renewable energy projects such as the Bluestone Wind Project that is consistent

with the recently enacted Climate Leadership and Community Protection Act the equities are

strongly in the Certificate Holder’s favor. Therefore, BCCR’s request for a stay should be denied.

II. Standard for Rehearing

BCCR, DOAS and DeHaan have not satisfied the standard for rehearing in 16 NYCRR §

3.7(b) with respect to any of the issues identified in their Petitions. The Commission’s regulations

clearly state “[r]ehearing may be sought only on the grounds that the Commission committed an

error of law or fact or that new circumstances warrant a different determination. A petition for

rehearing shall separately identify and specifically explain and support each alleged error or new

circumstance said to warrant rehearing.” 16 NYCRR § 3.7(b)(emphasis added).

A request which “largely reiterates arguments already made and rejected” is insufficient as

a basis to support rehearing or re-argument of the same issues.3 As outlined below, all three

3 See e.g. Petition of DSCI Corporation for Approval of an Interconnection Agreement with Verizon New York, Inc., Order Denying Petition for Rehearing in Case 04-C-0647 [March 3, 2005][rejecting a request for rehearing of a Commission Order because Petitioner raised nothing in its request for rehearing which was not already raised and considered when the initial decision was made, thus finding the request lacked any basis]; see also Application of Cassadaga Wind, Order on Rehearing in Case 14-F-0490 [May 15, 2018]

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rehearing Petitions largely reiterate arguments already made and rejected, and all three petitions

fail to identify specific errors of fact or law in the record that would warrant a different

determination by the Siting Board.4 Simply disagreeing with the Certificate Holder and the Siting

Board’s Order is an insufficient basis for the Board to order rehearing.

III. BCCR’s Petition for Rehearing Should be Denied

BCCR’s Petition for rehearing should be denied because its generic objection to various

aspects of the Siting Board’s decision, without providing any factual or legal arguments of any

kind to support those objections, violates 16 NYCRR § 3.7(b), which requires that petitions for

rehearing must “separately identify and specifically explain and support each alleged error or new

circumstance said to warrant rehearing.” Also, even with respect to those issues singled out for

discussion in its Petition, BCCR’s Petition for rehearing should also be denied since it has failed

to show either that the Siting Board committed an error of fact or law or that new circumstances

warrant a different determination than that contained in the Order. For these reasons, BCCR’s

Petition for rehearing must be denied in its entirety.

A. BCCR’s Objections Relating to Issues that it Has Not Specifically Briefed Must be Rejected

BCCR has once again attempted to preserve issues for rehearing and appeal using generic

objections without offering any evidence in support. In its original Brief on Exceptions, BCCR

objected to numerous aspects of the Recommended Decision (“RD”) with the following language:

BCCR takes exception to the RD of the Examiners in this proceeding. BCCR’s decision to not address this issue in this Brief on Exceptions should not be construed as an agreement with any portion of the RD, and BCCR reserves the right to file an appeal at the conclusion of this proceeding for any legal, procedural or substantive reason.5

4 None of the petitions request rehearing on the grounds that new circumstances warrant a different determination by the Siting Board. Regardless there are no new circumstances that warrant a different determination on rehearing. 5 This generic “exception” covered the following subjects/sections of BCCR’s Brief on Exceptions: Proposed Certificate Conditions and SEEP Specifications; Electric Generation Capacity – PSL § 168(3)(a); Ecology; Air;

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In essence, BCCR objected to key aspects of the Examiners’ RD without providing any

explanation whatsoever as to the basis for their objection. In the Order, the Siting Board agreed

with Bluestone that these generic exceptions must be disregarded because they violated 16

NYCRR § 4.10(c)(2), which requires parties asserting exceptions to provide the grounds for the

exception and arguments in support. According to the Siting Board, “[b]y failing to state any

specific grounds for any errors in the RD, BCCR ha[d] foregone the opportunity to raise its

concerns” before the Siting Board and waived its rights to raise arguments covered by this generic

exception (Order p. 8).

Having failed to point to any evidence in the record to support their Brief on Exceptions

with respect to these issues, BCCR has reintroduced the same generic exception in its petition for

rehearing (BCCR Petition pp. 8-10). To the extent BCCR is arguing that the Siting Board should,

in fact, reconsider its decision on these issues, this argument must be rejected. Under the standard

for rehearing in 16 NYCRR § 3.7(b), a petition on rehearing must “separately identify and

specifically explain and support each alleged error or new circumstance said to warrant rehearing.”

BCCR has not provided any evidence or explanation whatsoever to support its objections to the

Board’s decision on these issues, and thus, the Siting Board has no basis for granting rehearing.

Moreover, BCCR’s generic objections do not preserve its right to “appeal” the Board’s

final decision to the courts. Under PSL § 170(1), any review by the courts will be heard on the

record, and “[n]o objection that has not been urged by the party in his or her application for

rehearing before the board shall be considered by the court, unless the failure or neglect to urge

such objections shall be excused because of extraordinary circumstances.” In other words, the

court may only consider objections that were properly raised in a petition for rehearing (or on the

Groundwater, Including Water Supply Wells; Surface Water, Streams and Wetlands; Bats; Archaeological Resources; Cultural and Historic Resources; Infrastructure Impacts; and Public Interest Review.

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record before the Siting Board during the initial proceeding review). A request for rehearing that

lacks any specifics concerning the nature of the factual or legal error or new circumstances is not

a properly raised objection and thus provides no basis for judicial review under PSL § 170(1).

In an attempt to address its failure to provide any further detail as to specific mistakes of

fact or law, BCCR argues that it is not required to exhaust its administrative remedies and can

make a generic “objection” because providing more would be futile given what they essentially

claim is a biased Siting Board and the fact that, as a matter of law, the Board exceeded its authority

by how it handled the late-enacted local law. This claim too must fail. BCCR references the

Siting Board’s general statements in support of renewable energy as evidence that further argument

before the Siting Board is futile, thereby relieving it of making more specific arguments for

rehearing. Although New York State has a long tradition of encouraging the development of

renewable energy—culminating in the recent passage of the Climate Leadership and Community

Protection Act mandating 100% renewable electricity generation by 2040—the Article 10 process

requires the Siting Board to make specific findings and determinations, which it did here, after a

thorough review of the adverse environmental and other impacts of each individual project to

ensure that they have been avoided, minimized and mitigated to the maximum extent practicable.

BCCR has not raised any mistakes of law or fact with the record before the Board, or the

conclusions made based on this record evidence, that demonstrate this alleged bias. BCCR cannot

now rationally attribute its failure to identify and brief the purported flaws in the Siting Board’s

decision to State policy encouraging renewable energy or a claimed bias of the Board; this

argument does not save it from meeting the requirements for rehearing under the Siting Board’s

regulations. Instead, this evidences a lack of substance to their arguments, which should be

rejected.

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B. BCCR Has Failed to Show Either that the Siting Board Committed an Error of Fact or Law or that New Circumstances Warrant a Different Determination than that Contained in the Order

As stated above, even though BCCR did not identify specific mistakes of fact or law, and

instead reiterates arguments made throughout this proceeding, Bluestone will address the

substance of these arguments below to show that the Board had sufficient record to make the

findings and determinations on that issue and that anything further from BCCR is mere

disagreement with the Board’s conclusions.

1. The Certificate Holder’s Public Participation Efforts Satisfied Article 10

The first issue BCCR asserts is that the public participation process was “not effective, did

not ensure communication between stakeholders and the Certificate Holder, and did not result in

education of the public” (BCCR Petition p. 12). Based on that claim, BCCR argues that the Board

should modify its Order and deny the Certificate. In support of its request, BCCR cites selectively

from the DPS Consumer Services Panel’s (“CSP”) testimony to support its argument that the

Certificate Holder’s Public Involvement Program (“PIP”) plan was not properly implemented,

while at the same time ignoring the CSP’s conclusion that “the Certificate Holder was mostly

successful in implementing the PIP plan elements” (Tr. 1470, L10-11). As stated by the CSP:

[t]he Certificate Holder encouraged participation from municipal officials and affected local, state and federal agencies, and as evidenced in the meeting tracking logs, sought input from these stakeholders. In addition, the Certificate Holder attended local town board meetings, communicated with utility representatives, school districts, emergency response organizations, and other stakeholders by telephone, letter and email, and hosted two open houses for the public between January 2017 and November 2017. The Certificate Holder also participated in public hearings with the Towns of Sandford [sic] and Windsor about height variance and MET Tower issues. The Certificate Holder posted notice of the open house meetings in the local newspapers of record and on its website and sent notification letters to the stakeholders. The Certificate Holder provided access to Project information through the Project website and the establishment of local document repositories. In addition, in response to DPS Staff recommendations, the Certificate Holder

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also published project notice of the Application filing and other project milestones in a free community newspaper. (Tr. 1470, L11-21 to 1471, L1-15).

The RD upon which the final Order was based, included a detailed description of the

Certificate Holder’s pre-Application and Application-phase public outreach efforts as well as

DPS’s public involvement activities based on the detailed record assembled in this matter. The

Siting Board’s Order, which was based on the evidentiary record, briefs and other documents, did

not specifically address the public participation record for the Project, because the PSL does not

specifically require the Board to make findings on public participation in issuing its final decision.

However, the record establishes that the Certificate Holder fulfilled its obligation under Article 10

to provide meaningful opportunities for public comment throughout the review process. Nothing

in BCCR’s Petition identifies record evidence to support a different conclusion. Accordingly,

BCCR’s suggestion that the Board should reverse its decision and deny the Certificate for

inadequate public outreach efforts must be rejected.

2. The Evidence in the Record Supports the Siting Board’s Decision to Grant the Certificate

Despite a record in this proceeding comprised of many thousands of pages of application

exhibits, reports, plans, figures, hearing transcripts and other documents, BCCR contends that the

evidence is inadequate to support the Siting Board’s decision to grant a Certificate. The primary

basis for this contention appears to be that many of the documents in the record are preliminary

and that key details will not be available until the compliance phase. According to BCCR, “[t]his

approach is backward, and prejudices public intervenors such as BCCR by depriving them of the

right to litigate whether specific evidence submitted later is sufficient to support the Certificate

now” (BCCR Petition p. 14). In essence, BCCR is arguing that the design of an entire project—

including the many hundreds of drawings, plans and reports required to construct and operate the

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Project—must be completed before a Certificate can be issued and that the record is incomplete

without this information.

As a preliminary matter, in insisting on final plans, reports and designs, BCCR has ignored

the Article 10 regulations, which specify that certain plans required to be included with its Article

10 Application are expected to be preliminary. For example, BCCR condemns the Certificate

Holder for failing to include in the record final quality assurance and quality control plans, site

security plans, and blasting plans when the regulations clearly specify that only preliminary plans

are needed. (See, e.g., 16 NYCRR §§ 1001.12 [preliminary quality assurance and quality control

plan], 1000.18 [preliminary site security plan], and 1000.21 [preliminary blasting plan]).

Moreover, BCCR’s position is contrary to the Article 10 process. Neither Article 10 nor its

predecessors require the Certificate Holder seeking a Certificate to construct a major electric

generating facility to submit an application containing final (i.e., pre-construction) documents.

The regulations require sufficient information for the Siting Board to make the findings and

determinations required by the statute, (PSL § 164; 16 NYCRR § 1001). The PSL states an

application for a certificate shall contain an evaluation of “expected” impacts and “conceptual”

engineering plans. Further, the PSL and Article 10 regulations require an application to provide

sufficient information to allow the Siting Board to address “worst case assumptions” for purposes

of assessing environmental impacts, and the Siting Board does not require final design drawings

or other plans to do so. As a “siting” statute, the law and regulations contemplate filings made

following the issuance of the Certificate that will provide even more detail on the plans for the

Facility. This process ensures that certificates are granted based on assessment of the maximum

impacts reasonably anticipated for the project and that any changes to the project that occur

thereafter are properly assessed, thus eliminating potential concerns about the “preliminary” nature

of the application information. For this reason, public intervenors such as BCCR are neither

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prejudiced nor deprived of the right to challenge whether specific filings and information

submitted later are sufficient to support the Certificate.

It is not necessary to provide final documents during the application stage because the

process provides for the filing of final documents in the post-certificate compliance filing stage,

and it is the Certificate that provides the legal basis for preparing the final documents. As the Siting

Board is well aware, each certificate is accompanied by detailed certificate conditions as well as

guidance containing agency expectations regarding the preparation of these final compliance

documents. Each of the plans, reports, figures, drawings and other documents required by the

certificate will be reviewed by agency staff to confirm that they meet any applicable requirements

set forth in the Certificate and accompanying specifications document.

Finally, the public is further not harmed by providing preliminary plans at the application

stage because compliance filings include a 21-day public comment period and final compliance

documents must still be approved by the Siting Board. 16 NYCRR § 1002. Moreover, any changes

to a project in the final documents made after the Certificate is issued will be assessed to determine

whether they are “revisions,” i.e., changes “likely to result in any significant increase in any

environmental impact of such a facility or substantial change in the location of all or a portion of

such facility as determined by the Board” (16 NYCRR § 1000.2(ak)), pursuant a comprehensive

review process spelled out in 16 NYCRR § 1000.16.

In its Petition, BCCR also condemns the Siting Board for “failing to post admitted hearing

exhibits in either the evidentiary hearing transcripts or DMM generally” and for the purported

absence of a “publicly available comprehensive list of hearing exhibits offered or admitted during

the course of the evidentiary hearing” (BCCR Peition pp. 15-16). With regard to the former

objection, BCCR’s precise concern is unclear. The hearing exhibits are primarily made up of the

documents available on DMM and BCCR has failed to include a single example of missing

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exhibits that might clarify the nature of its complaint. With respect to the latter objection, the

Examiners publicly provided a list of documents admitted during the hearing that constitute the

record in this proceeding (see DMM Item 274).

BCCR has not shown how the record is inadequate to support the Siting Board’s decision

to grant a Certificate, and therefore, it has not shown how the lack of evidence is an error of fact

or law or new circumstances that would require a different determination than that contained in

the Order. Accordingly, BCCR’s Petition for rehearing should fail on this issue.

3. The Siting Board has not Violated BCCR’s Right to Due Process

BCCR’s Petition for rehearing should also fail on its assertion that the Siting Board has

violated BCCR’s right to due process. BCCR contends that the Siting Board has violated

intervenors’ right to due process based on the Examiners’ decisions to deny Intervenors’

evidentiary motions and strike their exceptions to the RD. In essence, BCCR is arguing that any

rulings against the intervenors violated their due process rights. BCCR fails either to articulate the

legal standard for a due process violation or to provide evidence from the record to support their

contention that their due process rights have been violated beyond noting that their requests for

relief were denied. The simple fact that the Examiners ruled against intervenors is not, in itself,

evidence that they have been denied due process. Because BCCR fails to articulate the legal

standard for a due process violation or to provide evidence from the record to support their

contention, BCCR has not shown that the Siting Board has committed an error of law, and

rehearing must be denied on this basis.

4. The Siting Board Properly Declined to Consider Local Laws Enacted by the Town of Sanford After the Close of the Evidentiary Hearing.

Contrary to BCCR’s contention, the Siting Board did not commit an error of law in its

decision to apply Sanford Local Law No. 1 of the Year 2017 “Renewable Energy Systems” to the

project. Moreover, the Siting Board properly dismissed the application of the moratorium and

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subsequent local law to the project, and BCCR’s Petition for rehearing should not be granted on

these bases.6

As summarized in the Order, the Town of Sanford adopted a three-month moratorium on

wind energy development on August 13, 2019 (Local Law No. 2-2019), after the close of the

evidentiary hearing. Three months later, on November 12, 2019, the Town extended the

moratorium until March 1, 2020 or the repeal of the local law7 (Local Law No. 3-2019).8 By letter

dated December 11, 2019, BCCR notified the Chair of the Siting Board that the Town had enacted

a new local law on December 10, 2019 that lifted the moratorium and established new requirements

for wind energy facilities (Local Law No. 4-2019) . On this record, the Siting Board concluded

that it was foreclosed under PSL § 168(1) from examining any of these local laws because they

were enacted after the close of the evidentiary hearing and thus were not part of the record in the

proceeding (Order pp. 80-81).

BCCR argues that Local Law No. 2-2019, Local Law No. 3-2019, and Local Law No. 4-

2019 should have been considered by the Siting Board even though they were passed after the

close of evidentiary hearings. BCCR argues that PSL § 168(1) “expressly states post evidentiary

hearing filings are part of the record that support a decision” based on the highlighted language

below. PSL § 168(1) provides that:

The board shall make the final decision on an application . . . upon the record made before the presiding examiner, including any briefs or exceptions to any recommended decision of such examiner or any report of the associated examiner, and after hearing such oral argument as the board shall determine (emphasis added).

6 BCCR also does not make any showing that the Siting Board’s denial of its request to extend the statutory deadline was in error. BCCR failed to make the requisite showing of extraordinary circumstances required by PSL § 165(4)(b) to justify an extension in the statutory deadline. 7 Contrary to BCCR’s assertions, by the plain terms of the moratorium, it expired when the Town passed Local Law No. 4 of 2019. 8 To the extent the moratorium was considered, it was determined to be unreasonably burdensome and BCCR has not justified a rehearing of this determination.

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However, the highlighted language does not permit the filing of new evidence or facts after the

evidentiary hearings. To the contrary, it merely makes the rather obvious point that the Board

must consider the facts on the record made before the presiding examiner as well as any briefs or

exceptions to any recommended decisions, the latter of which must necessarily be generated after

the close of the record, as parties cannot brief facts not in the record. This provision does not open

the record to post hearing filings of a factual nature, such as the Town of Sanford’s new local

laws.9 It would be procedurally improper for new facts to be entered into the record during the

briefing stage, even on “judicial notice”. The Siting Board can decline to take judicial notice of

facts not properly in the record. Neither the Public Service Commission regulations nor the New

York Civil Practice Law and Rules (“CPLR”), requires judicial notice at any stage of the

proceeding. (See 16 NYCRR § 1000.12(a)(10)(i); NY CPLR § 4511(b) [“Notice shall be given in

the pleadings or prior to the presentation of any evidence at the trial”]) Moreover, PSL § 167 (1)(b)

clearly states that “all testimony and information presented by the applicant, any state agency or

other party shall be subject to discovery and cross-examination.” Administrative agencies have

broad authority to set a deadline for the admission of new evidence and protect themselves from

interminable delay brought about by repeated supplemental evidence. This is particularly true

here, where Article 10 requires a final determination by the Siting Board within twelve months.

The Siting Board therefore did not make an error of law or fact or violate the State Administrative

Procedures Act (“SAPA”) by finding that, in this proceeding, PSL § 168(1) forecloses the

consideration of the newly enacted local laws.

9 In support of its suggestion that the Siting Board’s construction of PSL § 168(1) would lead to “absurd results” BCCR notes that the Siting Board would be prohibited from arguing under PSL § 168(1) that a federal law enacted after the close of the evidentiary hearing was not applicable to the Project. However, Article 10 does not in any way preempt federal law. By comparison, Article 10 includes detailed provisions addressing how local laws are to be implemented and enforced. Accordingly, BCCR’s comparison is without merit.

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Contrary to the assertions by BCCR, PSL § 168(3)(e) does not require that the Siting Board

find that the facility must comply with Local Law No. 4-2019. While PSL § 168(3)(e) does require

a finding that the facility is “designed to operate in compliance with applicable state and local

laws”, it cannot be read in isolation. PSL § 168(1) and PSL § 167 (1)(b) clearly limit the review to

the record before the Board, and the record before the Board was properly Local Law No. 1 of the

Year 2017 “Renewable Energy Systems”. Read along with other sections of the PSL, (see e.g.,

PSL § 166(1)(j)) this requires the introduction of laws early in the process to be included in the

record. Just because a municipality has passed a local law does not make it “applicable” under PSL

§ 168(3)(e) or required that it be included in the record. Therefore, reading the statute as a whole,

PSL § 168(3)(e) does not require that Local Law No. 2-2019, Local Law No. 3-2019, or Local

Law No. 4-2019 are applicable to the Facility, as all three fail to satisfy the procedural requirements

of PSL § 168(1) and PSL § 167 (1)(b).

BCCR’s argument that this Order deviates from prior Siting Board Orders and that the

Siting Board should have considered the late-enacted laws is wrong. BCCR states that the Board

has “routinely considered settlement agreements, evidence in support of settlement agreements,

evidence and even local laws submitted for review after a cross-examination hearing has already

occurred.” (BCCR Petition p. 19). As a preliminary matter, whether or not the Board has

considered settlement-related documents is irrelevant to this issue, since these examples do not

involve the introduction of new evidence into the record. Settlement agreements reflect a

settlement of issues already on the record and the parties in those proceedings were provided an

opportunity to examine those issues through testimony and witnesses. Moreover, none of the cases

cited by BCCR are factually similar, as the local laws at issue were introduced before the hearing

commenced and thus afforded the parties the opportunity for cross-examination and introduction

of additional evidence. In the case of the Cassadaga Wind Project, for example, the Town of

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Cherry Creek amended its local law relating to wind projects before the hearing commenced. (See

Hearing Exhibit 121, Case No. 14-F-0490). By comparison, all three of the Town of Sanford’s

local laws were enacted after the close of the evidentiary hearing. If these laws were introduced

into this process the Applicant would have been deprived of the opportunity to introduce witnesses

or documents addressing the implications of the law or to cross examine the Town, BCCR and

others concerning the law. This would violate PSL § 167(b)(1) and deprive parties of due process

to submit testimony and examine witnesses. The Cassadaga decision does not support a different

outcome.

The references to the Baron Winds10 and Deer River projects are even more suspect.

Although towns in both proceedings revised their local wind laws after the Application was

submitted, these changes were made well before the close of the hearing. As a result, the applicants

were provided with an opportunity to review the law, assess its implications for their projects, and

consider whether to introduce their own witnesses or cross-examine witnesses regarding the new

laws. Bluestone Wind had no such opportunity.

Contrary to BCCR’s suggestion, the Siting Board’s decision not to consider the local laws

enacted by the Town of Sanford after the close of the evidentiary hearing does not violate Article

IX of the New York State Constitution, which vests legislative power in local governments to

adopt local laws. A local government’s powers are explicitly constrained by State law; when a

municipal enactment is inconsistent with a general law of the State, it is invalid. NY Constitution

Article IV § 2(c); NY Municipal Home Rule Law § 10. In authorizing so-called “home rule” for

municipalities, the State Legislature specifically and explicitly retained for itself the power to enact

general laws affecting the “property, affairs, or government” of municipalities. NY Constitution

10 Moreover, in the Baron Winds proceeding the Siting Board did not consider study results from the Applicant that had not been introduced prior the hearings. See Application of Baron Winds, Case 15-F-0122, Ruling Denying Motions to Strike (issued May 10, 2019)

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Article IX § 2(b)(2). The Article 10 law governing the siting of major electric generating facilities

is one such law. See, e.g., In re Consolidated Edison Co. of New York, 60 N.Y.2d 99, 107 (1983)

(“defendants’ authority to enact local laws under the Constitution or Municipal Home Rule Law

is conditioned on the exercise of such authority not being inconsistent with any State enactment”);

see also In re City of New York, 10 Misc.3d 1060[A], 809 N.Y.S.2d 480, (Kings Cnty. Sup. Ct.

2005) (holding that “legislation inconsistent with the State’s [Article X] scheme will not be

permitted” and refusing to allow the City’s proceeding to condemn the facility site because such

an action would “circumvent the Siting Board’s jurisdiction” over the Certificate determination

and “frustrate [the] applicant’s ability to build an electric plant at a site deemed appropriate by the

Siting Board”).

In enacting Article 10 and its predecessors, the Legislature recognized that communities

objecting to the siting of major electric generating facilities could delay or derail the construction

of much needed new energy sources and prevent the state from achieving important energy goals.11

In an effort to ensure that local concerns are resolved early in the review process, PSL §

166(1)(j) expressly provides that if a municipality does not present evidence in support of a local

ordinance, law, resolution or other action or regulation, it “shall be barred from the enforcement

thereof.” Consistent with this provision, the Article 10 regulations specifically require the

Applicant to reach out to municipalities “to determine whether the Applicant has correctly

identified all [potentially applicable] requirements and to determine whether any potential request

by the Applicant that the Board elect not to apply any such local requirement could be obviated by

11 See, e.g., Matter of New York Inst. of Legal Research v. New York State Bd. on Elec. Generation Siting and Envt., 295 A.D.2d 517, 518 (2d Dept. 2002)(recognizing that a goal of Article X is to avoid unreasonable delay and to provide for the expeditious resolution of siting applications). Among other things, Article 10 expressly preempts local permitting requirements after an application for a Certificate of Environmental Compatibility and Public Need has been filed. See NY PSL § 172 (“[n]o state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed,” including pursuant to PSL § 168(3)(c)).

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design changes to proposed facility, or otherwise.” 16 NYCRR § 1001.31. The provision goes on

to warn that the information will be included in the application and will be used to determine their

positions in the issues conference and urges the lists to be “created with care so as not to cause any

party to needlessly expend resources due to a misclassification.” Id. This is exactly the process

followed by Bluestone Wind in this proceeding. In fact, the Certificate Holder has been working

with the Town of Sanford since 2016, attending local meetings, presenting the Project to local

officials, working with the Town during its adoption of its Renewable Energy Systems Law in

2017, and consulting with the Town during the Article 10 process.

At each stage of this proceeding the Town of Sanford was engaged and represented by

counsel. The Town of Sanford engaged in stipulation discussions, settlement discussions and

attended the evidentiary hearings. The Town executed Stipulations binding the Town to the local

laws identified in Exhibit 31 of the Application. The Town did not raise any issues relating to the

local laws during the evidentiary hearings or in testimony, nor has the Town filed a request for

rehearing on the Siting Board’s conclusion. Therefore, any newly enacted law should not be

considered “applicable” to the Facility under 16 NYCRR §§ 1000.5 and 1001.31 and compliance

with any such newly enacted law should not be one of the Findings to be made by the Siting Board

regarding consistency with local laws under PSL § 163(3)(e).

Article 10 prioritizes the expeditious identification and resolution of issues. PSL § 165

establishes a strict schedule for DPS to review applications to determine if they are compliant and

requires the Siting Board to issue a final decision within one year of the Board’s compliance

determination. As previously noted, PSL § 168(1) requires the Board to make “the final decision

on an application . . . upon the record made before the presiding examiner,” placing a premium on

establishing a complete record and identifying and litigating key issues before the record closes.

Allowing the introduction of new evidence—such as the adoption of a new local law—would

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undermine the careful balance struck by the Legislature between ensuring a thorough and complete

record in support of Article 10 applications and facilitating timely review.

Further support for the Siting Board’s correct conclusion that it could not consider the local

laws enacted by the Town of Sanford after the close of the record in the Bluestone Wind

proceeding can be found in the Memorandum and Resolution Adopting Article 10 Regulation,

which states:

As to the consideration of local laws adopted after the submission of an application, we will have to consider that matter on a case by case basis . . . We also note that the Article 10 process has some built in deadlines that, without imposing a special change in procedure, will act as a practical hindrance on the consideration of new local laws, including the application deadline, the deadlines for testimony, and the date upon which hearings are closed.

Contrary to BCCR’s contention, this provision does not support its conclusion that the Siting Board

can consider local laws at any time and is not bound either by the deadlines in the PSL or by the

requirement that decisions must be based on the record established at the close of the hearings.

The quoted language lists “the date upon which hearings are closed” as the outer limit for

consideration of local laws adopted after the submission of an application. The Town of Sanford’s

local laws were all enacted after this deadline.

Requiring the Siting Board to consider local laws enacted at any time during the Article 10

review process would provide towns with the means of delaying or interfering with the statutorily

prescribed application process, in direct contravention of Article 10, which was enacted to expedite

the review of major electric generating projects and contains provisions intended to facilitate the

early identification of local laws. For the Article 10 process to proceed fairly and expeditiously,

the PSL must be read to require municipalities to identify promptly the laws they seek to enforce

and to bar consideration of local laws enacted after the close of the record in the Article 10

proceeding. To hold otherwise would impermissibly empower local jurisdictions to delay or

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interfere with the statutorily prescribed application process based on post-hearing changes to their

local laws, circumvent the Siting Board’s jurisdiction over the Certificate review process,

including the application of substantive local laws, and impermissibly frustrate an applicant’s

ability to build a facility in a timely fashion.

In considering BCCR’s argument, it is again worth noting (as the Siting Board did in its

decision) that “the Town never took a position regarding whether the Project complies with local

laws. Nor did the Town take exception to any of the recommended findings in the RD, including

the finding that the Project complied with all local laws” (Order, p. 81). The Town also did not file

a request for rehearing on the Siting Board’s conclusion that it was foreclosed by PSL § 168(1)

from considering the new Town laws because they were enacted after the close of the hearing

record. Therefore, the newly enacted local laws are not applicable, unenforceable and not before

the Board.

In summary, BCCR is not entitled to rehearing on the issue of Sanford’s late-enacted local

laws. The Siting Board did not commit any errors of law or fact and properly found that the Board

is precluded from considering the local laws passed after the close of the evidentiary record

pursuant to PSL § 168(1), because such laws were not properly before the Board. Such finding

does not violate Article IX of the New York State Constitution, the Article 10 statute and

regulations, nor does it contradict prior Siting Board orders. The administrative process in New

York requires all parties to have evidence available to it early in the proceeding if it is going to be

considered by the Siting Board in its findings and determinations. In this case, the local laws were

not properly before the Board and it was appropriate for the Board to not consider them.

Moreover, the Board properly found that the moratorium was unreasonably burdensome.

Local Law-2 and Local Law-3 imposed a broad moratorium on the construction of wind energy

facilities in the Town despite the Town’s already existing comprehensive wind law. A blanket

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prohibition on wind development in the Town, is by its nature unreasonably burdensome, as an

applicant cannot comply with a prohibition on development and no changes in project design

would allow the facility to be built under a moratorium. Therefore, by its very nature a moratorium

is unreasonably burdensome as defined under PSL § 168(3)(3) and 16 NYCRR § 1001.31(e).

Regardless, as explained above, the Siting Board properly found the moratoria were not properly

before the Board.

5. The Siting Board Has Not Committed Errors of Law or Fact as Identified

by BCCR.

a. BCCR Waived its Objections to the Siting Board’s Conclusions Regarding Grid Reliability

BCCR argues that the Siting Board made an error of fact when it found that the Project

will improve grid reliability, contending that the Board failed to reference a single fact in the record

to support its conclusion (BCCR Petition p. 23). BCCR failed to raise this issue in its Brief on

Exceptions and so waived its objections under 16 NYCRR § 4.10(d)(2), which provides that a

“party’s failure to except with respect to any issue shall constitute a waiver of any objection to the

recommended decision’s resolution of that issue.” Having failed to raise the issue in its Brief on

Exceptions, BCCR is now barred from seeking rehearing. BCCR’s generic exception relating to

issues involving “electric generation capacity” is not enough to preserve this issue for rehearing

purposes.

Moreover, BCCR’s contentions relating to grid reliability are incorrect. As required by 16

NYCRR § 1001.5, a System Reliability Impact Study (“SRIS”) was prepared by the New York

Independent System Operator and submitted to the Department of Public Service as Critical

Energy Infrastructure Information (“CEII”). After reviewing the SRIS and other information

included with the Application, the DPS Engineering Panel concluded that the Project does not

cause any significant adverse impact to the New York Transmission System and will comply with

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all applicable reliability standards. The Examiners reviewed the evidence in the record and

concluded in the RD that the Project will improve grid reliability. BCCR has identified no evidence

in the record to contradict this conclusion.

b. The Record Supports the Board’s Findings Relating to Eagles

BCCR has not shown an error of fact or law with respect to the Siting Board’s findings

with respect to eagle impacts that would justify rehearing. As outlined in response to DOAS’s

Rehearing Petition below there is substantial evidence in the record supporting the Certificate

Holder’s take estimates for bald and golden eagles and the Certificate Holder’s avoidance,

minimization, and mitigation measures related to eagles. Moreover, Condition 68 is not “focused

on migrating birds” as BCCR states (BCCR Petition p. 25). Condition 68 will benefit all eagles

during the migratory periods regardless of the eagle’s activity. BCCR appears to misunderstand

the data in this proceeding with respect to eagles and believes that all eagles present during the

migratory period are therefore migrating. This assumption is false and is inconsistent with the

record in this proceeding; the status of eagles was thoroughly addressed in the testimony and was

the subject of cross examination at the hearings. Condition 68 is sufficiently protective of all

eagles, regardless of behavior and migratory status. The record more than supports the Siting

Board’s findings with respect to eagles.

c. The Record Supports the Board’s Findings Relating to Sound

BCCR has not shown an error of fact or law with respect to sound that would justify

rehearing. BCCR claims the Siting Board’s decision to apply the same noise limits as in Baron

Winds and Number Three Wind was not based on the record of this proceeding. This assertion is

incorrect. As the Siting Board correctly found “the Examiners carefully reviewed the record in

this case and properly took into account [our] decisions in earlier cases on noise issues. They

evaluated the evidence and noted that nothing in the record suggested that the Siting Board should

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adopt a different standard than it established in the Baron order.” (Order p. 57). Contrary to

BCCR’s assertions, the Certificate Holder was required to meet its burden of proof and submitted

substantial evidence in the record on the issue of noise impacts demonstrating that it met this

burden of proof.

The Hearing Examiners and Siting Board reviewed the extensive record in this proceeding

and found that nothing in this record dictated applying different sound limits than those in the

Baron Winds and Number Three Wind proceedings. There is substantial support in the record for

the sound limits ordered by the Siting Board. 45 dBA Leq-8-hour at non-participating residences

and 55 dBA Leq-8-hour at participating residences is sufficiently protective of health and

minimizes annoyance to the maximum extent practicable. There is no health basis to apply a

stricter sound limit than that proposed by the Certificate Holder. (Tr.2045-2075). A lower short-

term limit is not more protective to health or likely to substantially reduce complaints. At the same

time, a lower limit would significantly reduce the Project’s ability to produce clean renewable

energy.

45 dBA Leq-8-hour is consistent with the Health Canada Study which concluded that for

long-term exposure to wind turbine noise levels up to 46 dBA, the results do not support an

association between wind turbine noise and any health-related endpoint studied, including quality

of life, sleep disturbance, a wide range of illnesses, chronic health conditions, or stress (Hearing

Exh. 123).

Moreover, the potential for complaints at the 45 dBA L8h level is very low. The record

demonstrates that 3 or 4 potential receptors may be annoyed. (Hearing Exh. 61). Reducing the

expected complaint rate any further is unrealistic, especially considering that some people are

annoyed by wind turbines regardless of sound level due to visual or other impacts. This is

evidenced by the fact that even at the lowest sound levels (i.e., 30 dBA), 2% of people still claim

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to be “annoyed” by wind turbines (Hearing Exh. 125). There is substantial evidence in the record

to support the Siting Board’s finding with respect to sound, and BCCR has identified no errors of

fact or law to justify rehearing.

d. The Record Supports the Board’s Findings Relating to Visual Impacts

BCCR objects that the record “does not contain sufficient evidence for the Siting Board to

make required findings and determinations relating to the scope of visual impact, or whether visual

impact has been mitigated to maximum extent practicable” (BCCR Petition p. 29). A review of

the record demonstrates there is substantial evidence in support of the Board’s findings. The

Certificate Holder prepared a comprehensive visual impact assessment in accordance with the

applicable regulations in 16 NYCRR § 1001.24 as clarified by the Stipulations and made available

for public notice and comment. The Certificate Holder determined those areas where the turbines

would not be visible due to topography, structures and vegetation; identified visually sensitive

resources following extensive outreach as required by 16 NYCRR § 1001.24(b)(4); prepared visual

simulations to provide a means of assessing the potential impacts of the Project on visually

sensitive resources and landscape types; and provided the simulations to a panel of experts, which

identified the overall impact of the Project as generally “moderate” (Hearing Exh. 2, Application

Exh. 24(b)(7)). The Application also includes a discussion of the issues associated with mitigating

these visual impacts as well as a preliminary mitigation plan (see Hearing Exh. 2, Application

Appendix BB, Preliminary Cultural Resources Mitigation Plan).

In requesting rehearing on the issue of visual impacts, BCCR ignores this record while

providing no indication of what information is missing beyond suggesting that the Certificate

Holder should have included a lighting plan with its Application (BCCR Petition p. 29). While the

Certificate Holder was required to include, and did include, a basic lighting-related information

with its Application, neither the regulations nor the Stipulations signed by the parties require

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submission of a detailed lighting plan nor has such a plan been required prior to certification in

other Article 10 proceedings. The Siting Board has correctly concluded that detailed lighting

information should be provided as a compliance filing.

BCCR also objects that it is “unclear based on the Siting Board’s decision how or when it

intends to determine the feasibility” of a radar-activated lighting system (ADLS) and “what

mitigation, if any would be required if the Siting Board finds ADLS is infeasible.” (BCCR Petition

p. 29). In its decision, the Siting Board found that “[w]ith respect to ADLS, assuming the FAA

approves the system for use at the Facility, Bluestone has agreed to assess its feasibility, and will

install and use the system, if feasible” (Order p. 67). This commitment is all that can reasonably

be required. If ADLS is found to be technically infeasible, any lighting system installed will adhere

to FAA rules/guidelines, which are designed to balance aviation safety concerns with other factors,

including reducing light pollution.

The problems with BCCR’s rehearing argument are illustrated by its demand for relief,

which declares that “the Order must be modified to require an ADLS system and mitigation of

visual impacts through elimination of turbine locations with the highest relative visual impact”

(BCCR Petition p. 29). BCCR demands that the Order be modified to eliminate turbines with the

greatest visual impact, without specifically identifying the offending turbines and citing to the

record to show that these turbines will have a significant adverse impact. Likewise, BCCR

demands the installation of ADLS without proof that the technology is, in fact, feasible for this

Project and without reference to any factual or legal error in the record.

As noted above, “[r]ehearing may be sought only on the grounds that the [Siting Board]

committed an error of law or fact or that new circumstances warrant a different determination.” 16

NYCRR § 3.7(b). BCCR’s conclusory arguments relating to visual impacts do not satisfy this

standard and must be rejected.

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e. The Record Supports the Board’s Finding that the Project will not Impact Environmental Justice Communities

BCCR argues that the Siting Board “has committed an error of fact in finding that BCCR

did not raise any valid exceptions to the RD and that there are no impacts to EJ communities”

(BCCR Petition p. 29), yet another in a long line of attempts by intervenors DeHaan and BCCR to

argue that the Certificate Holder failed to properly assess the impact of the Project on

environmental justice (“EJ”) communities. For purposes of BCCR’s rehearing request, the

following points are salient: (1) the record contains an assessment of the proximity of the Project

to EJ communities. While BCCR contends that this analysis was inadequate, it can point to no

facts in the record showing that this conclusion (i.e., that there are no EJ communities in close

proximity to the Project) was wrong;12 and (2) even assuming one or more of the communities in

proximity to the Project meet the EJ criteria, BCCR can point to no evidence in the record that

these communities will be disproportionately impacted by the Project and thus can offer no

argument that the Board made a factual error that justifies rehearing.

PSL § 168(2)(d) specifically requires the Siting Board to make findings on the “cumulative

impact of emissions on the local community.” In making that determination, PSL § 168(4)(f)

requires the Board to consider “whether the facility would affect communities that are

disproportionately impacted by cumulative levels of pollutants.” This mandate is implemented via

6 NYCRR Part 487, which establishes procedures for determining whether a major electric

generating facility will result in significant and adverse disproportionate impact on EJ

communities. In this case, the Facility will not release any emissions or otherwise have a negative

impact on air quality during operations. Indeed, the Facility is expected to have a net benefit to air

12 As discussed in the Order, Intervenor DeHaan made several attempts to introduce evidence that the Village of Deposit is an EJ area. However, the Examiners correctly excluded this evidence, which was first introduced at the evidentiary hearing and was therefore untimely.

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quality and will displace thousands of tons of air pollutants (Hearing Exh. 2, Application Exh. 17).

Therefore, even if a community in the vicinity of the Project is considered an EJ area, the record

shows that the primary impact of concern under the statute—air emissions—has been avoided.

Moreover, there is nothing in the record to show that the Project will have a disproportionate

impact on any EJ community with respect to non-air related impacts. BCCR thus has not shown

an error of fact that would justify rehearing.

IV. DeHaan’s Petition for Rehearing Should be Denied Intervenor Heather DeHaan has requested rehearing on multiple issues, none of which

merit further review by the Board. Most of the issues were raised for the first time in DeHaan’s

Brief on Exceptions, and thus were not properly before the Board. As explained above, having

failed to properly identify the issues as part of the hearing process, DeHaan cannot seek rehearing

on those issues now.

Moreover, in briefing each of her issues, DeHaan attempts to incorporate by reference the

arguments in her Brief on Exceptions. In addition, the Brief concludes with a declaration that “[t]he

Board’s Order contained so many errors of law and fact that they are too numerous to brief in their

entirety” and goes on to attempt to incorporate her Brief on Exceptions by reference (DeHaan

Petition p.15). DeHaan’s improper attempts to bolster her arguments by incorporating her earlier

Brief on Exceptions must be rejected.

Substantively, the vast majority of DeHaan’s requests are generalized protests that the

Certificate Holder has not avoided or minimized impacts to the maximum extent practicable or

improperly relied on preliminary plans/reports. However, DeHaan has provided virtually no

specifics to support her arguments, let alone identified any particular errors of fact or law or new

circumstances that justify granting rehearing on these issues under the standard set forth in 16

NYCRR § 3.7(b). Accordingly, DeHaan’s requests for rehearing must be denied.

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A. DeHaan Improperly Raised Issues for the First Time in Her Brief on Exceptions, Barring Rehearing on Those Issues Now

DeHaan raised numerous issues for the first time in her Brief on Exceptions. In its Order,

the Siting Board declined to consider these issues, concluding correctly that her arguments were

“untimely and not properly before the Siting Board for review and decision” (Order, p. 10). The

Siting Board agreed with Bluestone that “[a]llowing parties to raise issues that could and should

have been raised at the hearing for the first time in briefs on exceptions is inconsistent with the

efficient and orderly adjudication in an Article 10 proceeding” because it potentially prejudices

the Certificate Holder and others and is inconsistent with Article 10’s preference for early

identification of issues (Order, p. 9). DeHaan cannot raise issues for rehearing that she was barred

from raising post-hearing in her Brief on Exceptions. Thus, the only issues on which DeHaan may

request rehearing relate to eagles and environmental justice—the two issues she raised during the

hearing. DeHaan’s petition for rehearing on all other issues must be denied.13

B. DeHaan’s Attempt to Incorporate Arguments from Her Brief on Exceptions Must be Rejected

In briefing each of her issues, DeHaan seeks improperly to incorporate by reference the

arguments in her Brief on Exceptions. For example, in conjunction with her discussion of

ecological impacts, DeHaan includes the following footnote: “In further support of this argument,

DeHaan incorporates by reference Sections II (pages 6-11), IV (pages 15-17), and V (pages 17-

23) of her Brief on Exceptions as if fully set forth herein” (DeHaan Brief, p. 9, fn 1). In addition,

DeHaan’s Brief concludes with a declaration that “[t]he Board’s Order contained so many errors

13 These issues are ecology (vegetation disturbance, invasive species, forest clearing and fragmentation, disturbance of agricultural lands, and impacts to endangered/threatened species other than eagles); groundwater, surface water and wetlands; public health and safety (shadow flicker, noise and vibration); cultural, historic and recreational resources; visual impacts; and transportation as well as the issues identified in Section I.G of DeHaan’s Petition that she failed to specifically argue (relating to communications, state and local laws and regulations, impacts on property values, concrete plants, stormwater pollution prevention plans, and alternatives, “among others”) (DeHaan Petition p. 15).

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of law and fact that they are too numerous to brief in their entirety” and goes on to attempt to

incorporate her Brief on Exceptions by reference with respect to the issues listed in Section I.G. of

her brief (DeHaan Petition p.15).

This attempt to incorporate previous arguments must be rejected. Under 16 NYCRR §

3.7(b), “[r]ehearing may be sought only on the grounds that the [Siting Board] committed an error

of law or fact or that new circumstances warrant a different determination.” The petition must

“separately identify and specifically explain and support each alleged error or new circumstance

said to warrant rehearing.” Id. Accordingly, rehearing may only be sought from decisions reached

by the Siting Board. The Brief on Exceptions was prepared based on the RD issued by the

Examiners, not the final Order issued by the Siting Board. Accordingly, any discussions relating

to the RD are irrelevant to the particular question whether the Siting Board “committed an error of

law or fact” or whether “new circumstances warrant a different determination” than that contained

in the Order justify granting rehearing.

C. The Record Supports the Board’s Findings Relating Ecological Impacts. DeHaan did not raise issues relating to ecological impacts during the hearing (other than

with respect to eagles) and thus is barred from raising these issues on rehearing consistent with the

Siting Board’s original decision (Order, pp. 7-11). In particular, DeHaan is barred for seeking

rehearing on the following ecology-related issues: disturbance of vegetation, forests and

agricultural land, invasive species impacts, and impacts to wildlife other than eagles.

Regardless, DeHaan’s contentions regarding ecological impacts are meritless.14 DeHaan

contends that the Siting Board “erred as a matter of law because the record does not support a

14DeHaan attempts to incorporate the arguments relating to ecological impacts from her Brief on Exceptions by reference. As discussed, this attempt must be rejected. If the Siting Board elects to consider these arguments, we refer the Board to of Bluestone Wind’s November 5, 2019 Brief Opposing Exceptions for the Certificate Holder’s response to DeHaan’s issues.

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finding that, and the Certificate Holder did not prove that, the adverse impacts to ecology would

be avoided, or mitigated to the maximum extent practicable” (DeHaan Petition p. 6) At their core,

DeHaan’s objections relating to impacts to land amount to little more than an argument that the

Project will disturb vegetation, forest and agricultural land and that the impacts have not been

avoided, minimized or mitigated.15 However, she identifies no specific errors of fact in the record

and thus has provided the Siting Board with no grounds for reconsidering its decision.

With respect to invasive species impacts, DeHaan contends that since 12% of the Facility

Site contains populations of “DEC regulated plant Species” or invasive species, and that

disturbance of this land necessarily constitutes a significant impact and that the Certificate Holder

has failed to offer evidence that this adverse effect will be avoided or minimized (DeHaan Petition

p. 8). However, the mere fact that the Project will disturb invasive species is not, in itself,

significant. More important, as the Siting Board found in its Order, the Certificate Holder has and

will take numerous steps to avoid and minimize impacts, including: conducting a baseline survey

of invasive species (Hearing Exh. 2, Appendix MM); preparing a preliminary Invasive Species

Control Plan (ISCP) that includes a specific goal of no net increase in invasive species (Hearing

Exh. 2, Appendix NN); and implementing a detailed program to prevent the spread of invasive

species and monitor developments post construction (see Certificate Condition 73 and SEEP

Specifications Guidance Section B(18)). Other Certificate Conditions and SEEP specifications

will assist in achieving the goal of preventing the spread of invasive species (see, e.g., Certificate

Conditions 101, 102, 120 and 130; SEEP Specifications Guidance A.11 and D.12). In challenging

15 With respect to agricultural land, DeHaan ignores the fact that the Certificate Holder agreed to comply with various conditions proposed by the New York State Department of Agriculture and Markets—the agency charged with protecting New York’s agriculture resources—and that the Department raised no concerns about agricultural impacts at the hearing on the Project.

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the Board’s findings relating to invasive species, DeHaan has identified no errors of fact in the

record to support its request for rehearing.

With respect to impacts to wildlife other than eagles, DeHaan’s arguments amount to little

more than a claim that that the Certificate Holder failed to show that adverse impacts have been

minimized or avoided without identifying any factual errors in the record to justify its request for

rehearing. This vague protest is belied by a review of the record which shows that the Certificate

Holder conducted an extensive survey of wildlife in the Project Area and fully analyzed the

potential impact of the Project on that wildlife and their habitat. After reviewing the various

arguments—including DeHaan’s Brief on Exceptions—the Siting Board rightly concluded that

“the weight of record evidence supports the Examiners’ conclusion” that impacts to wildlife other

than eagles and bats and to wildlife habitat have been avoided or minimized to the maximum extent

practicable (Order, pp. 39-40), and DeHaan has identified no specific errors of fact that would

justify overturning this conclusion. Accordingly, DeHaan’s request for rehearing on this issue must

be denied.

D. The Record Supports the Siting Board’s Findings Relating to Impacts to Groundwater, Surface Water, Streams and Wetlands

DeHaan did not raise issues relating to impacts to groundwater, surface water, streams and

wetlands during the hearing and thus is barred from raising them on rehearing for the reasons set

forth above.16 Also, while the heading in DeHaan’s Petition references groundwater and wetlands,

no specific issues are raised concerning impacts to these resources and so no grounds for rehearing

have been presented.

16DeHaan attempts to incorporate the arguments relating to impacts to groundwater, surface water, streams and wetlands from her Brief on Exceptions by reference, this attempt must be rejected. If the Siting Board elects to consider these arguments, we refer the Board to Bluestone Wind’s November 5, 2019 Brief Opposing Exceptions for the Certificate Holder’s response.

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As with her other rehearing requests, DeHaan very briefly identifies the impacts to surface

waters potentially caused by the Project and leaps to the conclusion that the Certificate Holder has

failed to show that those impacts have been avoided or mitigated to the maximum extent

practicable. In support of her argument, she condemns the Board for approving the Certificate

without first requiring a complete Stream Crossing Plan. As discussed in in other sections of this

response, this argument reflects a fundamental misunderstanding of the Article 10 process, which

does not require that all plans be finalized before a Certificate can be issued. This misunderstanding

is particularly problematic with respect to surface water because the final Certificate Conditions

and SEEP Specifications that accompany the Order contain extremely detailed provisions targeted

at avoiding, minimizing and mitigating surface water impacts (see, e.g., Certificate Conditions

107-118 and 123-129; SEEP Specifications Guidance Section A(5), B(17), D(11)). Given (1) the

significant quantity of information submitted with the Application concerning surface water

impacts, and (2) the detailed directives proposed to be included in the final Certificate to protect

surface water during construction of the Project, DeHaan lacks any rational factual or legal basis

for suggesting that the Siting Board’s decision was somehow deficient and should be reheard.

Likewise, DeHaan’s objections relating to soil erosion and sedimentation amount to little

more than a complaint that the final Stormwater Pollution Prevention Plan (“SWPPP”) has not

been prepared. This argument reflects a fundamental lack of understanding about the rules

governing stormwater permitting under Article 10. The State Pollutant Discharge Elimination

System (“SPDES”) General Permit for Stormwater Discharges from Construction Activities is a

federally delegated permit that is implemented by DEC pursuant to authority granted by EPA.

Under 16 NYCRR § 1001.32(a), DPS is not authorized to issue such permits under Article 10.

Instead, such permits are issued directly by DEC. Projects—such as the Bluestone Wind Energy

Facility—seeking coverage under the SPDES general permit must prepare a SWPPP prior to

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construction and submit a Notice of Intent form to DEC, who will decide whether to grant coverage

under the General Permit or require the Certificate Holder to obtain an individual SPDES Permit.

Implicit in DeHaan’s argument is the incorrect assumption that the Siting Board is

responsible for assessing the adequacy of a SWPPP when that responsibility, in fact, rests with

DEC. See Application of Kings Park, LLC for a Certificate of Environmental Compatibility &

Public Need, Case No. 00-F-1356, 2002 WL 1751199, at 6 (June 12, 2002) (specifying that the

Siting Board “will not sit in review of issues that are or might be decided in a DEC permit

proceeding under federal law”). Moreover, contrary to DeHaan’s suggestion, the Certificate

Holder could not prepare a final SWPPP now. The SWPPP must be prepared prior to commencing

construction once the Project layout and other details have been finalized. Accordingly, the

premise underlying DeHaan’s request for rehearing on the Siting Board’s decision regarding the

SWPPP is simply wrong; DeHaan thus has failed to identify an error of law or fact to justify her

rehearing request.

DeHaan’s comments regarding the Water Quality Certification (“WQC”)—like her

comments about the SPDES General Permit—reflect a fundamental lack of understanding

regarding the process of obtaining the approvals required to construct a wind project under Article

10. Under federal Clean Water Act (“CWA”) § 401, a federal agency such as the U.S. Army Corps

of Engineers (“USACE”) may not issue a permit or license to conduct any activity that may result

in a discharge to waters of the United States unless the state where the discharge originates either

certifies that the discharge complies with water quality requirements or waives the certification

requirement. In fulfillment of this mandate, the Article 10 regulations require DPS to issue the

necessary WQC under regulations established by DPS. 16 NYCRR § 1000.8 allows the Certificate

Holder to submit its request for a WQC either with the Article 10 application or in conjunction

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with the request for the federal permit for which the WQC is required (in this case, a federal

USACE wetland permit).

DeHaan’s contention that the WQC must be received before the Siting Board issues the

Certificate is simply incorrect. The DPS regulations make clear that the request for a WQC may

be made after the Application is submitted. Accordingly, DeHaan has identified no errors of fact

or law justifying rehearing.

E. The Record Supports the Siting Board’s Findings Relating to Public Health and Safety—Shadow Flicker, Noise and Vibration.

DeHaan did not raise issues relating to impacts to shadow flicker, noise and vibration

during the hearing and thus is barred from addressing them on rehearing for the reasons set forth

above. Moreover, DeHaan mentions potential shadow flicker and vibration impacts in passing, but

includes no specific arguments in support of her request for rehearing on the issues. Accordingly,

that request must be denied.

Additionally, DeHaan has not shown an error of fact or law with respect to sound that

would justify rehearing. DeHaan’s Petition contains unsupported blanket statements without any

record support or citations. As stated in response to BCCR’s Petition, there is substantial support

in the record for the sound limits ordered by the Siting Board. There is no health basis to apply a

stricter sound limit than that proposed by the Certificate Holder. (Tr.2045-2075). A lower short-

term limit is not more protective to health or likely to substantially reduce complaints. At the same

time, a lower limit would significantly reduce the Project’s ability to produce clean renewable

energy. Impacts due to sound have been minimized to the maximum extent practicable, and

DeHaan has identified no factual or legal errors justifying rehearing.

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F. The Record Supports the Siting Board’s Findings Relating to Cultural, Historic and Recreational Resources.

First, DeHaan did not raise issues relating to impacts to cultural, historic and recreational

resources during the hearing and thus is barred from addressing them on rehearing for the reasons

set forth above.17

Even if DeHaan’s issues relating to impacts to cultural, historic and recreational resources

had been properly raised during the hearing, DeHaan’s argument lacks merit. DeHaan appears to

be suggesting that the pedestrian reconnaissance performed to assess the possible archaeological

impacts of relocating several turbines was inadequate (DeHaan Petition pp. 13-14). However,

additional field work (i.e., shovel testing) is not necessary to address changes in the location of

components if—as in this case—the total area of ground disturbance does not increase (Hearing

Exh. 7, Application Update, p. 10). Moreover, DeHaan has identified no factual or legal errors in

the record to support her argument that further study is necessary. Accordingly, DeHaan’s request

for rehearing must be denied.

G. The Record Supports the Siting Board’s Findings Relating to Visual Impacts First, DeHaan did not raise issues relating to visual impacts during the hearing and thus is

barred from raising them on rehearing for the reasons set forth above.18

Even if DeHaan’s issues relating to visual impacts were properly raised during the hearing,

DeHaan’s argument now should be denied. DeHaan appears to be arguing that the Certificate

Holder could not properly assess the nighttime visual impacts of the Project because it has not yet

selected a turbine model. The Certificate Holder addressed this issue by modeling the worst-case

17DeHaan attempts to incorporate the arguments relating to impacts to cultural, historic and recreational resources from her Brief on Exceptions by reference. As discussed, this attempt must be rejected. If the Siting Board elects to consider these arguments, we refer the Board to Bluestone Wind’s November 5, 2019 Brief Opposing Exceptions for the Certificate Holder’s response. 18DeHaan attempts to incorporate the arguments relating to visual impacts from her Brief on Exceptions by reference. As discussed, this attempt must be rejected. If the Siting Board elects to consider these arguments, we refer the Board to Bluestone Wind’s November 5, 2019 Brief Opposing Exceptions for the Certificate Holder’s response.

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option, i.e., the model with the tallest hub height (since the turbine with the greatest hub height

will be visible from the greatest number of locations). This analysis provided the Siting Board with

the information necessary to assess the worst-case nighttime visual impact of the Project and

therefore, there were no factual or legal errors in the Siting Board’s decision. Because DeHaan has

identified no factual or legal errors in the record to support her contention that the Board failed to

properly assess nighttime visual impacts, her request for rehearing on this issue must be denied.

H. The Record Supports the Siting Board’s Findings Relating to Transportation Impacts

DeHaan did not raise issues relating to transportation impacts during the hearing and thus

is barred from raising them on rehearing for the reasons set forth above.19 Also, the transportation-

related issues raised by DeHaan differ from those raised in her Brief on Exceptions, which focused

on the lack of final plans and permits/approvals. DeHaan is barred from raising issues for the first

time on rehearing.

Even if DeHaan had properly raised issues relating to transportation impacts, DeHaan’s

contention that it supports a basis for rehearing fails. DeHaan appears to be contending that the

inclusion of conditions to mitigate traffic impacts is proof that the current Project design will not

avoid or minimize transportation-related impacts. This rather bizarre argument flies in the face of

Article 10, which specifically contemplates that impacts identified during project review may be

addressed (i.e., mitigated) through the imposition of certificate conditions. In this case, having

determined that the Project may have temporary transportation-related impacts on the surrounding

community, the Siting Board included conditions with the Certificate designed to mitigate those

19DeHaan attempts to incorporate the arguments relating to transportation impacts from her Brief on Exceptions by reference. As discussed, this attempt must be rejected. If the Siting Board elects to consider these arguments, we refer the Board to Bluestone Wind’s November 5, 2019 Brief Opposing Exceptions for the Certificate Holder’s response.

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impacts, consistent with Article. 10. DeHaan’s objections thus do not supply grounds for

rehearing.

V. DOAS’S Petition for Rehearing Should be Denied

DOAS has not shown an error of fact or law with respect to any of the issues raised in their

Petition that would justify rehearing. DOAS’s Petition seeks rehearing on the issue of impacts to

bald and golden eagles. DOAS’s main arguments for rehearing can be summarized as: the

Certificate Holder’s proposal for avoidance, minimization and mitigation for bald and golden

eagles is inadequate and the Certificate Holder’s take estimates are too low. As evidence for this,

DOAS reargues points raised previously in this proceeding, which were rejected by the Examiners

and Siting Board. DOAS does not identify how the Board has committed an error of law or fact

through its failure to agree with DOAS’s arguments. For that reason alone, DOAS’s Petition

should be rejected as inadequate and denied. The purpose of rehearing is not to re-litigate issues

already decided by the Board. DOAS has not identified any actual errors of law or fact that warrant

a different determination by the Board. DOAS’s Petition simply reargues points which have

already been considered and rejected by the Examiners and Siting Board.

The Siting Board carefully considered the voluminous evidence in this proceeding with

respect to impacts to bald and golden eagles. There is more than substantial evidence in the record

in support of the Certificate Holder’s proposal for avoidance, minimization and mitigation and the

Certificate Holder’s take estimate, with which both DEC and DPS concurred. The Hearing

Examiners and Siting Board correctly found that the Certificate Holder carried its burden of

proving that the Facility would operate in compliance with the State Endangered Species Act and

6 NYCRR Part 182. The Order and Certificate Conditions ensure impacts to eagles have been

avoided and minimized, and any adverse impacts to eagles remaining will be outweighed by the

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positive impacts anticipated from the mitigation measures proposed (See Certificate Conditions,

68, 69 & 70).

A. The Record Supports the Certificate Holder’s Take Estimates

The evidence in the record supporting the Certificate Holder’s take estimate and impact

assumptions does not “lack evidentiary value”. (DOAS Petition p. 8). Bald and golden eagle

interactions with wind turbines are not unique to this Project or to the Northeast. The risk to eagles

at wind farms is relatively low and is, in fact, lower than the risk to eagles of being struck by a

vehicle or train, shot, trapped, or poisoned (Tr.1987, L1-2). Telemetered eagles tracked by

DOAS’s expert, Dr. Tricia Miller, have moved through existing wind farms and none have been

killed by wind farms (Tr.598, L14-22). It has been well documented that eagles can adjust their

flight paths to avoid collisions with turbines. In fact, one of the telemetered golden eagles tracked

by Dr. Miller was documented exhibiting avoidance of turbines (Tr.598-599). Bald eagles tend to

soar at high altitudes, above the rotor swept height (“RSH”) of wind turbines, and the telemetered

golden eagle data showed that over the nine years of data collection, few golden eagle flights were

recorded over the Facility Site during the spring and fall migration, and when flights occurred over

the Facility Site, they were above the RSH indicating that those golden eagles may be at lower risk

for collision. In addition, as cited by the Certificate Holder’s expert, at one wind farm, 2,199 golden

eagle flights came within 100 meters of operating turbines without any collisions and there were

40,000 eagle flights reported within 800 meters of a turbine without any collisions (Tr.1950, L1-

4). Additionally, at the hearings Dr. Miller testified that the Facility is on the edge of the migratory

corridor and that there have been no recorded mortalities of golden eagles in the Atlantic Flyway

(Tr.668, L6).

Contrary to DOAS’s unsupported speculation regarding risk, documented take of bald and

golden eagles at wind facilities in the Northeast is rare. Only one bald eagle fatality has been

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reported in New York, and no golden eagle fatalities have been reported by wind facilities in the

Northeast including Pennsylvania, where golden eagles are known to migrate and winter in areas

with operational wind farms (Tr.1951). The Hearing Examiners and Siting Board correctly gave

weight to the fact that no known eagle nests are currently located within the Facility Site, only one

bald eagle fatality has been reported in New York, no golden eagle fatalities have been reported in

New York, no golden eagle fatalities have been reported at wind farms in the Appalachian region

of Pennsylvania where golden eagles are known to migrate and winter, the golden eagle population

in the eastern United States is less than 10% of the population of western United States were golden

eagle fatalities have been reported, and golden eagles do not breed in New York. (RD p. 59-61).

The Siting Board correctly found that the Bayesian Risk Model is not an appropriate method for

calculating take for purposes of State endangered species and correctly adopted the Certificate

Holder’s take estimate, as the estimate is reasonable and supported by substantial evidence in the

record.

B. The Record Supports the Certificate Holder’s Avoidance, Minimization, and Mitigation Measures

DOAS’s assertions that the Certificate Holder’s avoidance, minimization, mitigation and

Net Conservation Benefit Plan are inadequate are also without merit. Contrary to DOAS’s

arguments that the removal of turbines is required to minimize risk to eagles, the record

demonstrates that removal of turbines is a drastic remedy and is not supported by the on-site data

or documented take of eagles at operating wind farms (Tr.1984, L3-4). If the Certificate Holder

were to remove all the turbines identified in the testimony and reports prepared by DOAS, the

Certificate Holder would be required to remove more than 30% of the turbines from the Project

(Tr.2177, L21). Removing turbines is not required to adequately avoid or minimize risk to eagles.

Therefore, the Siting Board correctly did not recommend the removal of turbines.

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Instead, the minimization agreed to by the Certificate Holder, DPS, and DEC,

recommended by the Hearing Examiners, and adopted by the Siting Board correctly, balances the

high-risk periods with targeted turbine curtailment to adequately address the risk to eagles. In

addition, an adaptive management approach is an effective way to manage risk reduction to

threatened and endangered species while promoting and ensuring renewable energy development

– which is needed to reduce the threat and impacts of climate change and regional warming that

itself imperils desired animal and plant species (Tr.2080, L8-13). Certificate Condition 68

adequately avoids and minimizes the risk to eagles from the Facility.

With respect to mitigation and the Net Conservation Benefit Plan (“NCBP”), the Siting

Board correctly concluded that the procedure by which the Certificate Holder “will develop a

NCBP in consultation with, and subject to the acceptance of, DPS and DEC Staff and submit the

plan to the Siting Board as Compliance Filings provides adequate assurance that the Project will

comply with State Endangered Species law and regulations, and will avoid and minimize impacts

to eagles to the maximum extent practicable.” (Order p. 42)

To date, every Article 10 Certificate has required a final NCBP or equivalent document as

a compliance filing. The NCBP is not a “potential, future, unknown” plan (DOAS Petition p. 4).

A preliminary NCBP was filed with the Application (Appendix TT) and the details required to be

submitted with the final NCBP are contained in the Order and Certificate Conditions (Certificate

Condition 69). The Certificate Holder must consult with DEC and submit a final NCBP prior to

operation and the NCBP must include mitigation actions that will compensate for the estimated

take of golden and bald eagles in the Certificate. The evidence in the record and the Certificate

Conditions ensure that the Project will comply with Part 182.

Moreover, DOAS’s assertion that “because no other wind project in New York State has

included a mitigation plan to address the taking of Golden Eagles, there was no basis for the Siting

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Board’s conclusion that such a plan will adequately ensure compliance with state legal

requirements” is irrational and, taken to its logical conclusion, would mean the Siting Board could

never conclude that a plan will adequately ensure compliance with state requirements as it would

create a chicken-and-egg causality dilemma.

The Certificate Holder is committed to working with DEC and implementing one or more

of the mitigation measures identified by DEC to meet the regulatory requirements under New York

Environmental Conservation Law Article 11 and 6 NYCRR Part 182, including working with DEC

to identify a program that rehabilitates bald and golden eagles and providing a monetary donation

to that program to increase the success rate of rehabilitated eagles. There is ample evidence in the

record to support the conclusion that the mitigation measures identified by DEC meet the

regulatory requirements under Article 11 and Part 182.

C. The Siting Board’s Order is Not Procedurally Improper

DOAS’s claim that the Order is procedurally improper and violated the law because it was

issued prior to any determination on a motion to remove confidential designation from the

Certificate Holder’s federal take estimate, is without merit. DOAS, and other Parties, have had

access to the Certificate Holder’s confidential information under the Protective Order and DOAS

has had a full and fair opportunity to examine the issue, as the record reflects. The confidentiality

of this information is justified as outlined in the Certificate Holder’s response to the request for

public disclosure of this information20 and the confidential status, or lack of ruling on the

confidential status of this information, does not render the Siting Board’s Order procedurally

defective nor has it otherwise precluded Parties from participating in the process. Nothing in the

20 Certificate Holder’s Request for Confidential Treatment of Information dated August 22, 2019.

Public Service Commission regulations requires decisions on confidentiality requests or requests

for disclosure prior to the issuance of a Certificate.^^

CONCLUSION

For all the reasons discussed above the Siting Board should deny BCCR's request for a

stay and deny BCCR, DOAS and DeHaan's Petitions for Rehearing.

Dated: January 30,2020YOUNG/SOMMER LLC

1 A. Muscato II, Esq.tfeth M. Morss, Esq.

Jesbica Ansert Klami, Esq.AtMneys for Bluestone Wind, LLCFive Palisades DriveAlbany, NY 12205imuscato@voungsommer.comPhone: (518) 438-9907 ext. 243

DOAS's citation to 16 NYCRR 8.2(e) is not applicable, as a petition seeking a declaratory ruling has not been filedin this matter.

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