November 18, 2018
Editorials, New York

Turn it down: Local siting board should deny Apex’s Article 10 application

Watertown Daily Times | November 18, 2018 |

Administrative law judges are allowing two state agencies to draft new stipulations for Apex Clean Energy’s application for an Article 10 review of its proposed wind turbines on Galloo Island.

Apex failed to disclose the existence of a bald eagle nest on Galloo in its application for the 109-megawatt project. It later claimed that the nest was not being used for breeding purposes in 2017.

The state Department of Conservation, however, found evidence that the nest was used for breeding. DEC authorities said that Apex’s turbines may need to be relocated as a result.

The ruling from the administrative law judges permits the DEC and state Department of Public Service to withdraw from the previous stipulations they drafted and challenge parts of Apex’s application. Both agencies said they would create with new stipulations to clarify Apex’s obligations.

Three individuals from the region, however, believe Apex’s application should be dismissed. John J. Culkin, supervisor of the town of Henderson; Claudia J. Maurer, a Henderson resident who owns property on the neighboring Stony Island; and Clifford P. Schneider, a Wellesley Island resident and former DEC wildlife biologist, raised concerns about Apex omitting information about the eagle nest.

They filed a claim Oct. 31 stating that Apex violated Article 10 law, and the Board on Electric Generation Siting and the Environment should deny the company’s application. They cited a portion of the law stating the board can dismiss the application based “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,” they wrote in their claim.

Apex’s attorney, James A. Muscato II of Young/Sommer LLC, objected.

“The attorney said an interlocutory review addresses only ‘extraordinary circumstances,’ and their disagreement with the judges’ ruling doesn’t qualify,” according to a story published Nov. 11 by the Watertown Daily Times. “He also argued the language of the law doesn’t immediately call for application termination when information is omitted, but permits alternative resolutions.”

Contrary to this claim by Apex, Mr. Culkin, Mrs. Maurer and Mr. Schneider are correct in their assessment. The company failed to disclose relevant information, and its application should be tossed out.

Apex previously claimed that no evidence of an eagle nest existed on Galloo Island. But the company acknowledged under oath that the island caretaker made the firm aware of the nest in the spring of 2017.

Apex said that even after being made aware of the presence of the nest, it saw no “material reason” to update its application because it determined the nest was not being used for breeding. So it allowed its inaccurate statement to stand.

This is the very definition of deception. Having been made aware of the nest, Apex should have amended its application to acknowledge this.

The company’s claim that the nest wasn’t being used for breeding is contradicted by the findings of the DEC. So either Apex doesn’t know how to properly assess environmental conditions on the island, calling into question its competence in this crucial matter, or it intended to deceive state officials in its application, casting doubts on its integrity.

Given this, how can the firm be trusted to proceed through the Article 10 process? The siting board should dismiss the application immediately.

[rest of article available at source]

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