E.19,  Public Service Commission John B. Rhodes Chair and Chief Executive Officer Gregg C. Sayre Diane X. Burman James S. Alesi Commissioners Thomas Congdon Deputy Chair and Executive Deputy John J. Sipos Acting General Counsel Kathleen H. Burgess Secretary  NEWYORK STATEOR  Department of  OPPORTUNITY Public Service  Three Empire State Plaza, Albany, NY 12223-1350  www.dps.ny.gov.  Vial E-Mail  March 29, 2019  Secretary Kathleen H. Burgess Department ofPublic Service 31 Empire State Plaza Albany, NY 12223  Case 16-F-0559 - Application of Bluestone Wind, LLC: for a Certificate of  Environmental Compatibility and Public Need Pursuant to Article 10 for Construction of the Bluestone Wind Farm Project Located in the  Towns of Windsor and Sanford, Broome County  Dear Secretary Burgess,  Department of Public Service Staff (Staff) respectfully submits its Written  Statement of Issues in the above referenced matter. Thank you.  Sincerely, Ahh  Andrea Cerbin Assistant Counsel  Cc: Hearing Examiners Parties    STATE OF NEW YORK PUBLIC SERVICE COMMISSION  CASE 16-F-0559- Application of Bluestone Wind, LLC for a Certificate of Environmental  Compatibility and Public Need Pursuant to Article 10 for Construction of the Bluestone Wind Farm Project Located in the Towns of Windsor and  Sanford, Broome County.  DPS STAFF'S PROPOSED ARTICLE 101 ISSUES  Andrea Cerbin Assistant Counsel NYS Department ofl Public Service Three Empire State Plaza Albany, New York 12223-1350 (518)408-1441  Dated: March 29,2019 Albany, New York    CASE 16-F-0559- Application of Bluestone Wind, LLC for a Certificate of Enyironmental  Compatibility and Public Need Pursuant to Article 10 for Construction of the Bluestone Wind Farm Project Located in the Towns ofWindsor and  Sanford, Broome County.  DPS STAFF'S PROPOSED ARTICLE: 10 ISSUES  BACKGROUND  On September 18, 2018, Bluestone Wind, LLC (Applicant), filed an application (Application) seeking authorization to construct and operate a commercial scale 124-megawatt (MW) wind power project (Facility), located within the Towns of Sanford and' Windsor, in Broome County, New York. Subsequent to a Procedural Conference held on February 20, 2019 the Hearing Examiners issued a "Ruling on Schedule" dated March 7, 2019. Consistent with that schedule, each party is required to submit al list ofa all Public Service Law (PSL) Article IO issues  itj proposes for litigation.  ARTICLE 10 ISSUES  Staff oft the Department of Public Service (DPS Staff) hereby submits the following proposed preliminary list of PSL. Article 10 issues that it intends to litigate in this case. DPS Staff reserves the: right to add to the issues identified herein if, during this case, other relevant issues are identified which cannot be resolved through means other than litigation.  1  Environmental Impacts of Construction and Operation  PSL Sections 168(2)(a)-(d) require that, in reviewing an application for a Certificate of Environmental Compatibility and Public Need (Certificate), the Siting Board on Electric Generation Siting and the Environment (Siting Board) shall not grant a Certificate without making explicit findings regarding the: nature of the probable. environmental impacts ofthe construction and operation of the Facility, including the cumulative environmental impacts oft the construction and operation of related facilities on the ecology, air, ground and surface water, wildlife, and habitat; public health and safety; cultural, historic, and recreational resources,    CASE 16-F-0559  including aesthetics and scenic values; and, transportation, communication, utilities and other  infrastructure.  Such findings shall include whether the cumulative impact oft the construction and operation of the Facility results in a significant and adverse disproportionate environmental impact, in accordance with regulations promulgated by the New York State Department of Environmental Conservation (NYSDEC). As discussed in detail below, DPS Staff submits that the Applicant has failed to satisfy its burden with respect to fully characterizing the nature and probable impacts oft the construction and operation of the Facility and without additional mitigation measures, the Siting Board cannot approve the request for a Certificate.  2.  Facility layout and design and Local Laws (Exhibits 4. 6.11,and1 12)  DPS Staffv will examine the proposed Facility layout and design in detail and will propose modifications to Facility location details to: avoid or reduce site-specific impacts on affected  resources, including forest land, water resources, and agricultural lands.:  In addition, DPS Staff is reviewing numerous turbine locations listed in the. Application that may not meet. local requirements pertaining to roads, property lines, and public use. More  specifically, DPS Staffi intends to examine the following issues:  a. Staff has requested information regarding minimization ofi impacts on Facilities Site properties that are enrolled in NYS Forest Tax Law $480-a program. The 480-a program supports long-term forest management but discourages land use conversions during property enrollment. Staffwill analyze potential measures for avoiding or minimizing impacts on enrolled acreage in this resource conservation program. Applicant response to Staff Discovery is outstanding.  bas Need to identify and adopt standards and practices for trench breakers for temporary & permanent drainage & erosion control measures for underground collection lines on extreme slopes; furthermore, the record needs to provide consideration of coordination of erosion and drainage control measures on these slopes with nearby existing gas pipeline ROW drainage controls on steep  2    CASE 16-F-0559  slopes. Related stream and wetlands protection measures must be included in  final designs at these facilities locations.  3.  Construction (Exhibit 12)  Bluestone Wind has proposed a turbine setback of1.2 times the fall zone from gas  pipelines. DPS is evaluating whether this setback should be increased.  In addition, the Applicant notes that it has consulted with gas pipeline owners in the Facility Area (Millennium, Bluestone Gas Corporation, and Constitution (proposing a pipeline that would cross the Facility site)). Bluestone should provide assurance that agreements will be submitted prior to construction showing sign-off from pipeline owners regarding collection system and construction vehicle crossings of existing (or proposed) pipelines and collection line  installations parallel to existing (or proposed) pipelines.  Bluestone has proposed aj turbine setback of 1.25 times the fall zone from substations and transmission lines (115 kV and greater). In other Projects, DPS has recommended 1.5 times the  turbine blade tip height from substations and transmission lines..  4.  Noise and Vibration (Exhibit 19)  DPS Staffintends to test the adequacy oft the Applicant's proposed goals for the prevention ofs short-term and long-term adverse effects and the sufficiency of proposed regulatory limits. DPS Staff advises that additional regulatory limits need to be adopted and verifiable measures should be proposed. DPS Staff intends to test the operational noise assessments, the avoidance, minimization and mitigation measures, and the proposed regulatory limits for the Facility. DPS Staff also intends tot test the proposed compliance and complaint  resolution protocol and the conclusions oft the noise assessment.  DPS Staff intends to examine the design goals and assessment of potential operational noise impacts, in relation to the WHO-1999, WHO-2009, WHO-2018, and NARUC-2011 guidelines, as well as the low-frequency noise, infrasound levels and perceptible vibrations, and sounds limits at non-participating boundary lines. More specific details are provided below.  3    CASE 16-F-0559  a. Design Goals and Assessment of Potential Operational Noise Impacts:  i, WHO-1999  The relevance and adequacy ofj proposed maximum short-term outdoor nighttime noise levels of4 45 dBA-Leq-8-h asaregulatory 2). The adequacy of assumptions for outdoor to indoor noise reductions for assessment ofindoor recommendations for participating and non-participating receptors. 3). The height of evaluation ofs short-term noise impacts for sensitive  limit for the Facility,  receptors.  ii. WHO-2009  1) The equivalence between short-term long-term regulatory limits, 2) The height of evaluation of short-term noise impacts for sensitive  receptors.  iii. WHO-2018 Guidelines  1) The need for evaluation of potential noise impacts from the façility on sensitive receptors based on the reçently released WHO-2018 2) The adequacy and relevance ofa proposed short-term and long- term regulatory limits for evaluation ofthe new recommendation 3). The height ofevaluation of long-term noise impacts for sensitive  guidelines for wind-turbine noise.  included in the WHO-2018 guidelines.  receptors.  iv. Low-Frequency Noise, Infrasound Levels, and Perceptible Vibrations  1) The height of the receptors for evaluation oflow frequency 2) Sound impacts for the Collector Substation including  sounds.  penalties for prominent tones..  V.. Sound Limits at Non-Participating Boundary Lines  1) The equivalencies and conversions between short-term and long-  term noise descriptors.  4    CASEI 16-F-0559  b. Avoidance, Minimization and Mitigation Measures  1. The adequacy of proposed design and layouts and need for ptorisatbneiminsn of wind turbines.  ii. The absence of specification of contingency mitigation options for low- frequency (31.5 and 63 Hz.), infrasound (16 Hz.), and potential amplitude  modulation issues.  iii. Use ofNRO's in compliance filings. Proposed Regulatory Limits  The sufficiency and adequacy of proposed regulatory limits for sound sensitive receptors (participating and non-participating), the absence of proposed regulatory limits for boundary lines and the sufficiency of regulatory limits for evaluation of potential long-term effects.  d. Compliance Protocol. Adequacy and sufficiency of compliance protocol . Complaint Resolution Protocol. Adequacy and sufficiency of complaint  provisions.  resolution protocol provisions. Compliance Filings g Conclusions  Sufficiency of proposed compliance filings.  Whether the adverse environmental noise effects of the construction. and operation of the Facility have been minimized or avoided to the maximum ii. Whether the Applicant will avoid, offset, or minimize the noise and vibration impacts caused by the facility upon the local community for the: lifespan of the project to the maximum extent practicable using verifiable  extent practicable.  measures.  5. Cultural Resources (Exhibit 20)  DPS Staffi is reviewing impacts to historic resources, and potential measures and methods for impact avoidance and minimization to address (or potentially to offset) adverse visual effects  on historic resources.  5    CASE 16-F-0559  6. Terrestrial Ecology and Wetlands (Exhibit22)  DPS Staffi is evaluating the potential impacts oft the Facility on birds (particularly Bald and Golden Eagles). and bats (including NLEB) and evaluating what avoidance, minimization, and mitigation measures, including changes to. facility location, layout, and curtailment régimes  are necessary toj protect sensitive environmental resources.. 7. Water Resources and Aquatic Ecology (Exhibit 23)  With respect to groundwater resources, portions of the proposed Facility (including turbines T1,T6, and T7) are located within the Clinton Street Ballpark Valley Sole Source Aquifer. In addition, there are numerous public and private drinking water wells within the Facility Area. Staffi is evaluating the potential impacts of Project construction on groundwater resources, including resources relied upon by residents as the primary sources of drinking water,  with consideration of steep slopes and impacts from blasting operations.  In addition, the proposed Facility layout requires numerous crossings of, and construction within proximity to, several NYSDEC Protected Streams (Class C(T) and above). Staffis reviewing the proposed crossings and Facility locations, with consideration of steep slopes and potential impacts to water quality during construction. Included in this analysis is an evaluation of proposed horizontal directional drilling (HDD), and potential constraints for the proposed HDD locations and risks of frac-outs at crossing OfNYSDEC Protected Streams.  8. Visual Impacts (Exhibit 24)  Staffi is analyzing facilities layout and predicted visual effect, and is considering  development of measures to reduce visual impacts. 9. Effect on Communications (Exhibit 26)  The Application states that the National Telecommunications and Information Administration (NTIA) reported low impacts to doppler/weather radar. However, this is based on turbine heights of 410 feet and not the currently proposed. heights of 673 feet. It is noted that an updated request was submitted to the NTIA on August 30, 2018 and that the Applicant will  6    CASE 16-F-0559  provide the Siting Board with updated correspondence upon receipt. DPS requests that any updates regarding consultation between the Applicant and NTIA be provided. as soon: as possible. DPS notes that ifs significant modifications to the Project arise (as required by NTIA or through FAA Notice of Construction) due to the height changes, then all relevant Exhibits, figures, and drawings must be submitted as a Supplement to the Application.  10. Site Restoration and Decommissioning (Exhibit29)  DPS Staffi is reviewing the Applicant's proposed Decommissioning Plan and notes that it disagrees with several elements of the plan. DPS has issue with the Applicant's proposed use of scrap value for calculating a net decommissioning and site restoration estimate. DPS recommends that the projected total gross cost be used for establishing a decommissioning and site restoration estimate (it should be noted that Bluestone lists both cost options and has not provided assurance that it will omit scrap value: from its final decommissioning estimate).  In recent cases, DPS Staff maintains that financial assurance be provided to the towns in the form ofl letters of credit for the total amount of the decommissioning and site restoration estimate. Furthermore, DPS Stafft takes issue with the proposed timing for obtaining security and submittal of revised estimates. Proof from the Towns of an acceptable form of1 letter of credit should be provided to the Secretary 90 days prior to construction. The letters of credit should remain active for the life of the Facility, until iti is decommissioned, and adjusted every fifth year under the administration oft the Towns' and/or DPS for inflation. oft relevant costs. DPS Staff does not recommend placing the burden on the Towns of attempting to sell used wind turbines to fund decommissioning and site restoration activities.. Also, DPS Staff contends that itis inappropriate to have the Towns assume the responsibility ofmanaging a major construction undertaking consisting ofdecommissioning and restoration ofa wind farm, Staffwill develop recommended certificate conditions regarding the decommissioning plan that are consistent with  prior Siting Board approved plans.  11. Conformance with Local Laws (Exhibit3 31)  DPS Staff takes issue with the. Applicant's) proposals regarding land use classifications  that appear to contradict the text of the Town of Sanford Land Use law.  7    CASE 16-F-0559  Design of ancillary facilities has not been demonstrated to conform with local setback  distances. Applicant response to Staff Discovery is outstanding,  12. Certification conditions. compliance authority and complaint resolution  Certificate Conditions will be advanced to address appropriate terms and conditions for potential issuance ofa Certificate ofEnvironmental Compatibility. and Public Need, including performance standards, impact avoidance and mitigation measures, compliance filing and reporting requirements; and impact monitoring and operational controls requirements.  CONCLUSION  DPS Staff's review oft the Application and submission oft testimony concerning the above- referenced issues will provide an independent assessment that can serve to enhance the record fors the Siting Board and should properly be added to the list ofissues for litigation in this proceeding. As indicated, through discovery of issues, other issues may be identified and DPS Staffreserves the right to supplement this issues list in order to develop an adequate record.  8