LOWVILLE – The first wind farm in the north country approved through the state’s Article 10 process requested a “rehearing” of its project, disputing the legitimacy of some of the conditions they are required to meet.
On Dec. 12, Number Three Wind Farm LLC, owned by Chicago-based Invenergy, filed a petition for a rehearing by the Board on Electric Generation Siting and the Environment, contesting a number of conditions in the order granting the Certificate of Environmental Compatibility and Public Need.
“For applicants, Certificate Conditions are the central focus because they determine how much time will be required to complete construction; how costly construction will be; and the revenue potential of the Project once built and placed in service,” Number Three’s petition said.
But according to state law, a rehearing can only be granted if Number Three proves the Siting Board made a legal or factual mistake or that new circumstances should change the board’s findings.
The petition questions the Siting Board’s rationale for conditions set in the certificate order on issues contested throughout the process especially those relating to the project’s impact on threatened and endangered birds, noise and the role of the Site Engineering and Environment Plan, or SEEP.
“The order suffers from errors, omissions and erroneous conclusions which together have led to the adoption of Certificate Conditions compliance with which would be impracticable and unreasonably and unnecessarily costly,” the 39-page petition concludes.
The wind farm says the Siting Board failed to provide adequate explanations as to why some of its conditions were different from those Number Three, the Department of Public Service and the Department of Environmental Conservation agreed upon in June and those recommended by the process’ examiners in their Recommended Decisions issued in August.
Number Three lists 11 conditions dealing with issues as varied as implementing avoidance measures throughout the project, the definition of “emergency,” road agreements and water wells among others, as having been either deleted or “intentionally omitted” in those previous documents and addressed in separate sections in an appendix to the project document.
Number Three also stated “… it appears that a policy promoting consistency among Board orders may have been elevated over the legal requirement that Siting Board decisions be based on the record before it and supported with adequate explanation,” referencing an effort to have consistency between decisions in the Article 10 process on wind projects.
The wind farm asserts the board didn’t explain how and why it decided issues that were not discussed in the Recommended Decisions but that the company had disputed on the record.
Some evidence that was given more weight by the board, especially information provided by the DEC about certain grassland birds and the Department of Public Service on noise issues, is contested by Number Three, stating its own evidence and testimony on the record was not taken into account or discussed by the Siting Board in the certificate order.
Rebuttals by the DEC, the Tug Hill Alliance for Rural Preservation, a local residents group that is a party in the process, and the Department of Public Service each call into question Number Three’s facts and accusations.
According to the DEC, Number Three makes “multiple incorrect and/or misleading assertions,” that the company “has a fundamental misunderstanding” of the Article 10 process, especially with regard to state law and regulation compliance, and that the company’s “repeated assertions regarding conflicting State policies are disingenuous and create a false narrative.”
The DEC’s response walks through each of the company’s claims, noting discrepancies and countering arguments disputing the DEC’s evidence and that the company wasn’t, in the case of information regarding grassland bird habitats, given information in a timely manner.
THARP, says there are no grounds for a rehearing but if one is granted, only information already on the record should be discussed and the Siting Board’s recommendations should be upheld on all of the contested issues.
If new information is to be introduced into the process, THARP requests “the record be reopened and discovery and evidentiary hearing” be held.
The Department of Public Service refers to information provided by Number Three as “false” and points out specific omissions of facts relating to precedence set in the cases of the other three wind farms approved through Article 10, especially with regard to the conditions relating to noise “modeling,” or predicting, at a 4-meter level.
All three parties to the process responded on Dec. 27 and agree Number Three does not have grounds for a rehearing, however the ultimate decision is up to the Siting Board.
“Once the responses from parties are submitted, they will be reviewed by the Siting Board. A decision by the Siting Board is due roughly 90 days from the date of the petition filing,” according to a Department of Public Service spokesperson.
If a rehearing is to be held, that, too, must be completed and decisions made within the 90 days unless the board extends the deadline.
Of the three wind projects previously granted certificates through Article 10, only the first, Cassadaga Wind in Chautauqua County also had a petition for a rehearing, however, the request in that case was made by a citizens group that was a party to the process and not the wind company itself.
Cassadaga is the wind farm noted by Number Three’s Project Manager Marguerite Wells in a previous interview as having not yet starting construction in the two years since their certificate approval because of delays caused by the process.
Ms. Wells also said at that time just after the announcement of Number Three’s certificate approval, that time constraints, specifically the project’s federal Production Tax Credit which she said is scheduled to lose value if the wind project isn’t completed by the end of 2020, could impact the project’s finances, making the additional time many of the conditions require problematic for the company.
“The devil’s in the details,” she said, adding that the contents of the Siting Board’s 200-plus page order, yet to be issued at the time of the interview, would determine how her company would proceed.
They determined a rehearing is their preferred next step.
The 105.8-megawatt wind project will consist of 31 turbines, 13 in the town of Lowville and 18 in the town of Harrisburg.
To read the full documents filed in the Article 10 process for Number Three Wind, go to http://documents.dps.ny.gov/public/MatterManagement/CaseMaster.aspx?MatterCaseNo=16-F-0328.
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