croh comments to psc ~ re: article 10

7/31/2019 CROH Comments to PSC ~ Re: Article 10

http://slidepdf.com/reader/full/croh-comments-to-psc-re-article-10 1/14



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At a minimum, applicants should be required to disclose proposed project information such as capital

costs, as well as meteorological information. Public subsidies are paying the bulk of the price for these projects and certainly the public is entitled to full disclosure of how their money has been spent, and the

data that supports that expenditure. (Since 2009, $350,270,605 of our tax dollars from the American

Recovery and Reinvestment Act has been given to three industrial wind companies to develop six projects in our state.) While wind facilities have maintained proprietary information as secret and

exclusive to the developer in the past, given current conditions, such as the economic downturn,continued poor performance in the area of face plate capacity, and an antiquated grid system not

designed for intermittent power, the incentive-paying public has every right to know criteria used todetermine siting.

Investigation of existing data offers possible reasons the wind companies want this information

classified proprietary. The NY ISO Gold Book and the NYS Renewable Portfolio Performance Reportof December 31, 2011 states that New York's wind resource has proven marginal with annual average

capacity factors ranging between 22-23% across all projects. According to documents from AWSTrueWind, LLC and the National Renewable Energy Laboratory used to identify locations for

commercial wind development, the windy land area in NY with a gross capacity factor (without losses)

of 30% and greater at 80m height above ground exists in only 4.1% of the state(http://www.windpoweringamerica.gov/windmaps/resource_potential.asp), yet the wind companieshave targeted hundreds of rural towns all the while knowing there is not sufficient wind speed in the

majority of these towns. Any town having researched current wind speed maps will uncover the reasonthe inefficient industrial wind equipment presently in use is increasing in size (496’ turbines currently

being installed in Churubusco, NY) and expense. Developers have decided to find the “wind” at all costsand knowing it doesn’t exist at the 50mm level and barely at the 80m levels, they will continue to build

taller. Where will it end… at 600’, 700’ or 1000’? We implore the Siting Board to do your homework and employ the same standards an informed local Town Board (who will live in the middle of a project)

would have when it comes to issues such as wind speed verification and limits on height.

We encourage you to maintain the criteria as well as cost sited in Section 1001.6(d) and Section1001.14.

Section 1001.31(e):

Previous siting decisions prior to this new Article X legislation as well as PSC 168 (3)(e) should not beused to modify or mitigate the currently proposed Section 1001.31e. It is included to recognize efforts

by localities to responsibly control local land use with siting conditions unique to their communities. Assuch, these conditions should be respected and any burden of proof required to change them or find them

unreasonable or burdensome should rest solely with the developer/applicant. The thresholds thatestablish standards for project approval are minimal standards for the applicant. Any effort to impose

additional requirements such as those found in a local siting ordinance need to be respected and

responded to as currently written in Section 1001.31(e). Many of the standards of proof required tooverride local laws have come as a direct result of indiscreet and at times illegal behavior on the part of previous developers, as well as numerous complaint issues that are easily prevented if local regulations

are adhered to and a “one size fits all” siting regimen is rejected. Local laws should remain the thresholdof compliance. Compliance with local laws is the starting point for establishing standards regarding

siting criteria for locales with such laws. Overriding local laws should be a seldom used and “last ditch” process, not a beginning strategy.



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The argument that established wind farms that have successfully followed environmental standardsrelevant to the time of the project’s inception should be used as a standard for future environmental

standards, is illogical. Standards are continuously evolving; they are not stagnant allowing us to ignorethe latest findings because we adhere to a “golden” previously established standard. The use of a

standard in place a decade ago that allowed the establishment of a wind project is history, and should notform the basis or serve as a precedent for how it is to be done today. Rural NYS residents deserve

protection from situations where they have no choice but to live in close proximity of structures that are

50 stories high that bring with them many documented dangers, including noise, collapse, explosion,fire, blade disintegration, ice throw, etc.

The three tests, as found in 1001.31(c) 1-3, must be maintained as the threshold for determining

unreasonable and burdensome regulations found in local laws; the burden to prove same rests

entirely with the applicant.

Regarding Administrative Hearing Criteria: Please keep the wording in Section 1000.12(2) as

currently reads “an issue or evidence is material and relevant.”

We also request you consider the following:

• The regulations regarding time frames and procedures set out in Section 1000.4(d) and1000.5(c) be maintained as it is imperative public input takes place before scoping begins

• Maintain Sections 1001.8, 1001.10 (b) and 1001.10(e) as written.

• Maintain Sections 1001.11(c), 1001.4(c) and Article X review as written

• Maintain Sections 1000.2(x and ak), Section 1000.2 ak, 1000.10(b)(2) as written.

2. E XHIBIT 19: N OISE AND V IBRATION

While the issues of noise and vibration are numerous and complex, this section includes commentsregarding the Discussion and Analysis of Stakeholders Recommendations in only two areas:

1) a cap on the overall noise level

2) the elimination of a mandated monitoring of the C-weighted noise levelOur comments apply to all energy facilities, but reference data is primarily from studies associated withwidely studied sound emissions and health effects caused by industrial wind turbines.

Cap on Overall Noise Level:

Regarding a cap on overall noise level, the Discussion and Analysis reads as follows: The draft below relies heavily on the DEC guidance and attempts to satisfy most of the requests that were

made. Some stakeholders representing individuals and municipalities concerned about wind noise

requested a cap on overall noise level to be set at 35dBA at night. They argue that an overall cap is

supported by the World Health Organization and would eliminate concerns about improperly

characterizing baseline levels. Some stakeholders representing wind developers appear to support a form

of a cap on incremental noise under the DEC guidelines that would look for heightened scrutiny of anyincrease of 6dBA or more and elimination or mitigation of any increase of 10dBA or more. The draft

below does not place either form of cap leaving limits to a case-by-case determination by the Siting

Board.

As stakeholders, we were part of a group of seven who were specifically asked by the PSC to provide

additional testimony in the area of noise during the development of the Draft Regulations for Article X.We wanted to be certain we were providing the most accurate information available that would best

assist the PSC in developing the safest and most effective regulations for ALL NYS citizens. As aresult, our group -- on behalf of the people of New York and at considerable expense -- hired Dr.



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Paul Schomer, a world-renowned acoustician, to review the noise section of the Article X draftregulations. Dr. Schomer took this task very seriously. Using an unbiased approach, he made important

recommendations on the Draft Regulations regarding the section on noise, suggesting a rational soundlimit paralleling The World Health Organization's guidelines - considered the Gold Standard in the

world today. His suggestion of a night-time noise cap of 35dBA offered legally-defendablerecommendations that would allow the PSC to develop state-of-the-art regulations ensuring needed

protections for all NY State residents. (See attached Appendix for complete recommendations)

Dr. Schomer even went so far as to include for the benefit of the PSC, a look at the soon-to-be-released

national acoustical standards that are in the final stage of development and approval. Unfortunately, it

appears the recommendations and advice of the Standards Director of the Acoustical Society of Americaand recognized international leader in the area of environmental noise ended up on the cutting room

floor and were not acknowledged in the present draft regulations.

Dr. Schomer is not alone in his recommendation of stricter noise levels as he conducted a thoroughsearch of the standards and guidelines that are currently employed throughout the acoustical industry

and found that other colleagues feel the same and are concerned about the health and safety of thoseexposed to noise pollution. As recently as March of this year, an editorial posted by Hanning and Evans

in the British Medical Journal (2012) stated the following:

A large body of evidence now exists to suggest that wind turbines disturb sleep and impair healthat distances and external noise levels that are permitted in most jurisdictions, including the

United Kingdom. Sleep disturbance may be a particular problem in children, and it may haveimportant implications for public health. When seeking to generate renewable energy through

wind, governments must ensure that the public will not suffer harm from additional ambient noise. Robust independent research into the health effects of existing wind farms is long overdue,

as is an independent review of existing evidence and guidance on acceptable noise levels.

By virtue of the fact the industrial wind companies appear to be targeting unsuspecting rural areas for

development and that past noise studies in these areas conducted by non-biased acousticians indicatednight-time ambient noise levels of 30dBA or lower, in our opinion, establishing a limit on what the

population of these areas should be expected to tolerate is not unreasonable.

Low Frequency Noise:

The following comments on low frequency noise were offered in the Discussion and Analysis of Stakeholders Recommendations:

Many stakeholders representing individuals and municipalities concerned about wind noise requested the

measurement and estimation of C-weighted/dBC sound levels as an aid to addressing their concerns

about low frequency noise or infrasound. Many stakeholders representing wind developers opposed

requiring the incorporation of C-weighted/dBC sound levels as an unnecessary expense because they

believe that issues related to low frequency noise or infrasound can be analyzed adequately without suchexpenditure. The draft regulations would require applicants to provide an analysis of whether the facility

will produce significant levels of low frequency noise or infrasound, without specifically requiring the

measurement and estimation of C-weighted/dBC sound levels, but do not preclude a case-by-case

determination requiring the measurement and estimation of C-weighted/dBC sound levels in a proceeding

in an appropriate circumstance.

Regarding the issue of low-frequency noise, we have to question the failure of the Draft Regulations to

require the incorporation of C-weighted/dBC sound levels as it gives the appearance of placing financialgain above the health and safety of residents. From what we understand, in speaking with qualified



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acoustical engineers, measuring A and C-weighted noise levels can be done very easily using the samecomputer generated software thus negating the expense the wind developers claim to purport. One

would have to wonder if this is an attempt to manipulate data or an unwillingness to acknowledge the presence of a community health issue that will only continue to grow in proportion to the placement of

50-story high structures near population areas.

To refer to Dr. Schomer once more, he maintains the following opinion regarding low frequency noise:

There is a rich history of peer-reviewed scientific papers, mainly in the Journal of Low- frequency Sound and Vibration, documenting the adverse health effects low-frequency noisehas on a significant minority of the population. These low-frequency sufferers can be quite

debilitated by the noise. To ignore the low-frequency noise, the C-weighting and these sufferersis arbitrary and capricious.

After reviewing the articles, Wind Turbine Noise: What Audiologists Should Know written by Punch, James, & Pabst and published in Audiology Today, (2010), and Responses of the Ear to Infrasound

and Wind written by Salt and published in Hearing Research (2010), the educators and psychologists inour group are concerned about what this might mean for the increasing numbers of children with

auditory and vestibular issues as well as the aging population and those with health challenges. The

following paragraph from the first article summarizes our concerns regarding noise pollution: None of these unwanted emissions, whether audible or inaudible, are believed to cause hearing loss, but they are widely known to cause sleep disturbances. Inaudible components can induce

resonant vibration in solids, liquids, and gases—including the ground, houses, and other building structures, spaces within those structures, and bodily tissues and cavities—that is

potentially harmful to humans. The most extreme of these low-frequency (infrasonic) emissions,at frequencies under about 16 Hz, can easily penetrate homes. Some residents perceive the

energy as sound, others experience it as vibration, and others are not aware of it at all. Researchis beginning to show that, in addition to sleep disturbances, these emissions may have other

deleterious consequences on health. It is for these reasons that wind turbines are becoming animportant community health issue, especially when hosted in quiet rural communities that have

no prior experience with industrial noise or urban hum.

To preserve the health and safety of NY residents who may become potential victims of low

frequency noise produced by electrical generating facilities, we encourage you to reinstate the

requirement for applicants to conduct C-weighted noise measurements for all situations listed in

Exhibit 19.

3. E XHIBIT 29: D ECOMMISSIONING

The Decommissioning requirements and processes are as critical to the evaluation and approval processof energy producing projects as any other aspect, and are often relegated to a secondary status because

of their lack of immediacy in the project sequence. Further, because of both the lack of frequent andcurrent experience and the difficulty in anticipating and valuating future events, it is easy to minimize

the scrutiny of this portion of the project review.

In our opinion, the criteria established in Section 1001.29 are inadequate and lack any definitivemechanism by which to judge the applicants proposals. It appears to lack any standards for ongoing

performance that would trigger decommissioning or a defined basis by which to judge the adequacy of the applicant’s statements. It is important that the State, the applicant and the affected community fully

understand and have confidence in the process of decommissioning that has the potential of leaving



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behind a project that could result in enormous economic, viewscape and ecological challenges. Thereare far too many examples of abandoned industrial sites that have become substantial financial and/or

health burdens on the state and local residents. This can occur because of the lack of appropriateforethought, properly defined standards and/or a rush to initial approval without consideration of the

long-term consequences. It is imperative that the government of New York State does not find itself inthese circumstances.

We would like to see the following issues addressed:• Detailed and established criteria by which to evaluate applicants decommissioning proposal

• Define criteria when the decommissioning process would be initiated

• Regular reviews of the decommissioning process and cost. If salvage values are used in the

estimate, they must be updated frequently and documented in detail including the costs of

preparing and removing the spoils

• For wind-powered generation facilities, often sited on third party properties and closely

comingled with local, non-participating resident's private homes or businesses, decommissioning

standards and process must be demanding and convincing to protect the interests of all

New York State’s citizens

• Any change in ownership must be carefully scrutinized to assure continued understanding,

commitment and adequate resources for implementation of any decommissioning process

After much time spent investigating the issue, the Town of Hammond Wind Committee made these

recommendations to the local town board that we feel are worthy of your consideration:• Any wind turbine that is nonfunctional or inoperative for a continuous period of one year be

removed at the developer's cost

• A decommissioning plan submitted by the developer must include the estimated

decommissioning costs, how the estimate was determined, the method of ensuring available

funds for decommissioning and the method that will be used to keep those costs current

• A decommissioning fund of 125 percent of the full cost of decommissioning (including salvagevalue) and restoration be kept in the form of cash on deposit with the town or cash held in

escrow in a New York-licensed financial institution

In sum, we have outlined what we feel are three critical aspects for your scrutinized attention. We

understand this was an arduous task and we thank you for your time and consideration of the commentswe have laid before you. We have confidence your interest in protecting the residents of this state will

take precedence as you attempt to balance the requests of those who stand to gain financially againstthose who will live with the consequences.

Sincerely,

Article X Stakeholder: Concerned Residents of Hammond

Mary Hamilton, Presidentwww.croh.org

APPENDIX attached:

Proposed Text 1001.19 Exhibit 19: Noise developed by Dr. Paul Schomer



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March 5, 2012

To Whom it may concern:

I am Paul Schomer, Ph.D. and P.E., and I have reviewed the document entitled: Proposed Text: 1001.19

Exhibit 19: Noise.

As a part of my consulting, during parts of 2006 and 2007, I was the expert for the court in a case dealing

with whether a noise ordinance was unconstitutionally vague (Judge Stanley Latreille, Livingston County

Circuit Court, Re: Green Oak Township v. State of Michigan, Case No. 04!20782!CZ).’’ My resume’ is

attached to this brief “white paper.”

Basically, I find the document to be brief to the point that it well could be “unconstitutionally vague.” Asa first example, the present clause (b) is far too loose as to the measurement position on the property.

For a large enough tract of land, one person could measure at 1000 ft from the Energy Producer (EP)

and another could measure at 3000 ft from the EP. These 2 measurements of the ostensibly same device

and condition would likely be very different. So, I have proposed a new clause (b) with sub!parts (b1)

and (b2), and I have recommended the use of the new, soon to be ANSI/ASA standard on measurement

of the ambient in low!noise zones such as those found in quiet rural areas.

Clauses (d), (e) and (f) all seem to say the same thing within their individual bounds.

There is little specificity to the points where EP sound levels are calculated, and likewise, little specificity

as to where on the parcel measurements are taken. So, changes to the text that improve the specificity

are recommended.

Clause (e) is perhaps the most egregious example of the lack of specificity. It basically says, “we are

going to establish noise criteria and limits on a case!by!case basis, with no indication as to how this will

operate, why the criteria should or should not change, specifications as to the qualifications of the

presenter, etc.” Here we recommend the use of both A!weighted and C!weighted SEL, and we provide a

fixed target. These simple changes greatly improve readability, and specificity of the rule.

Attached is a marked up version of the State's proposal and a clean version of the revised proposal.

Sincerely,

Paul Schomer, Ph.D., P.E.

Member, Board Certified; Institute of Noise Control Engineering



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croh comments to psc ~ re: article 10

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