Two state agencies can now challenge aspects of the state Article 10 review application for the Galloo Island Wind project after taking advantage of a recent ruling from other state officials.
After it was revealed that Apex Clean Energy omitted the finding of a bald eagle nest on Galloo Island in spring 2017 from the application for its 109-megawatt project, administrative law judges allowed parties involved in the review to withdraw from the stipulations pertaining to studies of terrestrial ecology, wetlands and other related matters. Stipulations, according to the state Department of Public Service, are agreements between parties on matters before the Board on Electric Generation Siting and the Environment, including studies developers must provide in their applications.
Both the state departments of Public Service and Environmental Conservation said in letters dated Nov. 2 that they have withdrawn from the particular stipulations due to Apex’s decision not to divulge the knowledge of the nest and the lack of studies to address it.
“Specifically, had the applicant disclosed the bald eagle nest prior to the date that the stipulations were executed, DEC staff would have requested various studies to be included in the application,” Kara E. Paulsen of the DEC’s office of general counsel said in her letter. “Ultimately, the stipulations would have been substantively different.”
The Public Service Department said that by withdrawing from the stipulations, the departments can challenge the methods, scope or adequacy of studies related to those agreements.
“Any party that executed a pre-application stipulation may not raise objections at the hearing as to the methodology or scope of any study or program of studies performed in compliance with such stipulation,” the department said. “The significance of authorizing a party to withdraw from a stipulation means that party is no longer prohibited from raising objections at the evidentiary hearing.”
Administrative law judges also ordered Apex to amend its application to include information about the eagle nest and any possible changes to the project made to avoid it. They also requested the developer respond to a proposal to extend the Article 10 review time frame.
Apex’s attorney, James A. Muscato II of Young/Sommer LLC, said in a letter that the developer agreed to the extension and would amend relevant portions of its application.
“In addition, based on the postponement granted by the ruling, (Apex) will also be including additional project updates to reflect the current turbine selection and resulting reduction in total number of turbines proposed for the facility,” Mr. Muscato wrote. “Additional details regarding the minor shifts of the turbine layout will also be described in the application modification.”
The issue that led to the ruling stems from a September filing from several participants, including Clifford P. Schneider, Claudia J. Maurer and Henderson Town Supervisor John J. Culkin, requesting judges dismiss Apex’s application after it failed to disclose the bald eagle nest siting. The developer admitted to the omission, but contended its consultant found no eagles, eggs or chicks and “the nest was not used for breeding in 2017.” The DEC, however, found afterward it was an active nest and claimed turbines might have to be relocated and mitigation efforts might have to be addressed.
Mr. Schneider, Mrs. Maurer and Mr. Culkin are once again calling for the application’s dismissal by requesting an interlocutory review of the recent ruling.
They claim in a filing dated Oct. 31 that Apex violated Article 10 law and the siting board should deny the application, citing a portion of the law stating the board can do so “upon discovery of materially false or inaccurate statements in the application” or the “discovery of material information that the applicant withheld or misrepresented …”
“Compared to revocation of a certificate/application for false statements and material omissions, the ‘Do-Over’ remedy ordered for (Apex), sends a message that applicants need only be forthcoming after they are caught red-handed because there are no serious consequences to submitting a fraudulent Article 10 application,” the three opponents wrote.
The developer challenged their rebuke in a Friday letter from Mr. Muscato. The attorney said an interlocutory review addresses only “extraordinary circumstances,” and their disagreement with the judges’ ruling doesn’t qualify. He also argued the language of the law doesn’t immediately call for application termination when information is omitted, but permits alternative resolutions.
“Such a drastic remedy is particularly inappropriate where (Apex) is committed to updating the application to address an identified deficiency,” he wrote.
Apex plans to build 30 turbines on Galloo Island for its project, which would provide power to a substation in Oswego through a 32-mile underwater cable.