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    N.Y. PSC Issues Order Approving Compliance Filings Involving Baron Winds


    May 18, 2022 - Targeted News Service

     

      ALBANY, New York, May 18 (TNSsre) -- The New York State Public Service Commission issued the following order approving compliance filings (Case No. 15-F-0122):

      Application of Baron Winds LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 to Construct a Wind Energy Facility.

      ORDER APPROVING COMPLIANCE FILINGS 47, 51(b) and (c), and 52 SUBJECT TO CONDITIONS

      BY THE COMMISSION:

      INTRODUCTION

      On September 12, 2019, the New York State Board on Electric Generation Siting and the Environment (Siting Board) granted a Certificate of Environmental Compatibility and Public Need, With Conditions (Certificate)/1 to Baron Winds, LLC (Baron Winds or Certificate Holder) pursuant to Public Service Law (PSL) Sec.168. The Certificate Order authorizes Baron Winds to construct and operate a 242 megawatt (MW) utility-scale wind energy facility (the Project) in Towns of Cohocton, Dansville, Fremont, and Wayland, in Steuben County, New York. On May 6, 2020, the Siting Board issued an order approving an amendment to the Certificate, which modified the Project to allow construction of the Project to be split into two phases and allows Baron Winds to install up to 33 turbines in Phase I, none of which are in the Town of Fremont./2

      The Certificate, as amended, contains Certificate Conditions that require several compliance filings by the Certificate Holder, to be approved by the Siting Board or the Public Service Commission (Commission), in the event the Siting Board's jurisdiction has ceased, including conditions for construction and operational impact mitigation./3

      As detailed in this Order, the Certificate Holder filed requirements of 47 and 52 on August 9, 2021. The Certificate Holder filed requirements of 51(b) and (c) on April 15, 2022. The Certificate Holder filed supplements to Compliance Filing 52 on April 15 and April 28, 2022. The Certificate Holder filed a supplement to 51(c) on April 28, 2022.

      Through this Order, the Commission approves Compliance Filings 47, 51(b) and (c), and 52 for the purposes discussed below only.

      BACKGROUND

      Condition 47

      Certificate Condition 47 requires the Certificate Holder to submit the following:

      Prior to construction, the Certificate Holder shall file manufacturer provided information (including technical and safety manuals) regarding the design, safety and testing information for the wind turbine(s), specific generating and related facilities equipment to be installed during construction, or as related to any equipment installed during Facility operation as a replacement of failed or outdated equipment. All such updates shall be submitted to the Siting Board, or to the Commission after the Siting Board's jurisdiction has ceased, by filing with the Secretary throughout the life of the plant. Replacement of major Facility components, such as wind turbines, with different make, model, size, or other material modification, shall be subject to review and approval under appropriate authority of the Siting Board.

      Condition 51(b) and (c)

      Certificate Condition 51(b) and (c) requires the Certificate Holder to submit the following:

      b) Final and updated Route Evaluation Study, including maps of final transportation routes for Project component deliveries;

      c) Traffic Control Plans for any city, town, or village that may experience delays to local traffic during construction activities. The Traffic Control Plans shall include copies of any Host Community Agreements and/or Road Use Agreements with the County and any affected towns where the local roads will be utilized for delivery or construction vehicle transportation

      Condition 52

      Certificate Condition 52 requires the following:

      The Certificate Holder shall submit a Site Engineering and Environmental Plan (SEEP) or equivalent documents that, as applicable, shall contain the informational requirements stated in the SEEP Specifications. The Certificate Holder may submit a separate SEEP or equivalent documents for each phase of construction (i.e., tree clearing, civil, turbine erection. The Certificate Holder may submit the SEEP(s) or equivalent documents as a single document accompanied by necessary plans, drawings or other documents, or as a series of separate documents. Where the Applicant previously submitted information as part of its Application that fulfills a particular SEEP obligation, the Certificate Holder must resubmit that information as part of the SEEP or equivalent documents. If the SEEP Specifications conflict with any of these Certificate Conditions, or if the Certificate Conditions require more information than required by the SEEP specifications, the Certificate Conditions shall be controlling.

      PUBLIC NOTICE

      The Certificate Holder filed Compliance Filings 47 and 52 on August 9, 2021, and Compliance Filings 51(b) and (c) on April 15, 2022, for the purposes of turbine delivery and erection. Pursuant to 16 NYCRR Sec.1002.2(d), "[a]ny interested person or party may file comments regarding any compliance filing within 21 days of the filing and service of such compliance filing done in accordance with subdivision (c) of this section." No comments were filed during the 21-day comment period, or thereafter, related to Compliance Filings 47, 51(b) and (c), and 52.

      LEGAL AUTHORITY

      Under PSL Sec.168(7), "[f]ollowing any rehearing and any judicial review of the board's decision, the board's jurisdiction over an application shall cease, provided, however, that the permanent board shall retain jurisdiction with respect to the amendment, suspension or revocation of a certificate." For purposes of the subject compliance filings described here, the Siting Board's jurisdiction has ceased, as such, pursuant to 16 NYCRR Sec.1002.2(f),/4 the Commission has the jurisdiction to approve these compliance filings./5

      Public Service Law Sec.168(5) includes a delegation of authority to the Commission for compliance administration. That section states "[t]he department [of Public Service] or the [Public Service] commission shall monitor, enforce and administer compliance with any terms and conditions set forth in the [Siting] board's order [Order Granting Certificate of Environmental Compatibility and Public Need]."

      The Siting Board's regulation at 16 NYCRR Sec.1002(1), establishes procedures and requirements for a certificate holder to comply with the "terms, conditions, limitations, or modifications of the construction and operation of the facility authorized in the certificate." The regulation at 16 NYCRR Sec.1002.2 describes the procedures that a certificate holder must comply with, including filing requirements and notice procedures, and outlines the jurisdiction of the Siting Board and the Commission in approving compliance filings. The regulation at 16 NYCRR Sec.1002.2(b) establishes that a phased approach to compliance filings can occur so long as the "applicant has submitted the required compliance filing for that portion of the facility and received approval of it by the Board, or by the Commission after the Board's jurisdiction has ceased."

      Pursuant to 16 NYCRR Sec.1002.3, a certificate holder is required to submit "(a) a description of and citation to the requirement in a certificate or an order for which compliance is to be demonstrated; (b) a description of how the applicant will comply with the requirements of the certificate or order; and (c) final maps, plans, diagrams, drawings, studies, reports or other documents demonstrating compliance." Under 16 NYCRR Sec.1002.2(g), the Siting Board, or the Commission if the Siting Board's jurisdiction has ceased, may approve compliance filings subject to specified terms, conditions, limitations, or modifications. Finally, pursuant to 16 NYCRR Sec.1002.2(i), the standard of review for compliance filings shall be whether the "compliance filing reasonably assures compliance with the Certificate."

      DISCUSSION

      Condition_47

      Pursuant to Certificate Condition 47, the Certificate Holder filed Compliance Filing 47 on August 9, 2021. The filing includes the manufacturer provided information regarding the design, safety and testing information for the Project-specific wind turbine(s). Department of Public Service (DPS) Staff advises that the Certificate Holder's Compliance Filing 47 satisfies the requirements of Certificate Condition 47.

      Accordingly, the Commission finds that the filing reasonably assures compliance with Certificate Conditions 47 of the Certificate Order and is approved for all phases.

      Condition_51(b) and (c)

      Pursuant to Certificate Condition 51(b) and (c), the Certificate Holder filed Compliance Filing 51(b) and (c) for the turbine delivery and erection phase on April 15, 2022, which includes an updated route evaluation Sheet and updatated material associated with the Road Use Agreement for the turbine and erection phase of the Project (copies of Host Community/Road Use Agreements were provided for host towns on August 18, 2021; the agreements were, subsequently, approved by the Public Service Commission on September 14, 2021). DPS Staff reviewed the Certificate Holder's Compliance Filing 51(b) and (c) and advised the Certificate Holder to file a supplement to 51(c) acknowledging that the traffic control plan previously approved on September 14, 2021, will be utilized if traffic control and mitigation measures are necessary. DPS Staff also requested that the Certificate Holder acknowledge that it will implement any traffic control measures required by the New York State Department of Transportation and copies of such measures or permits will be filed, to be included with the permits, as information reports, as required by Certificate Condition 51(a). The Certificate Holder supplemented Compliance Filing 51(c) on April 28, 2022, satisfying DPS Staff's requests.

      Accordingly, the Commission finds that the filing and supplement reasonably assure compliance with Certificate Condition 51(b) and (c) of the Certificate Order and is approved for the purpose of turbine delivery and erection.

      Condition_52

      Pursuant to Certificate Condition 52, the Site Engineering and Environmental Plan (SEEP) was supplemented for the purposes of the Project's turbine delivery and erection construction. Required filings of Certificate Condition 52 were submitted for the Project's turbine delivery and erection construction on August 9, 2021. The SEEP was supplemented on April 15 and April 28, 2022, as discussed above.

      Accordingly, the Commission finds that the SEEP filings, as filed and supplemented, reasonably assure compliance with Certificate Condition 52 of the Certificate Order for the purposes of turbine delivery and erection.

      CONCLUSION

      The Commission finds that Compliance Filings 47, 51(b) and (c), and 52, as filed and/or supplemented, reasonably assure compliance with the corresponding Certificate Conditions in the Certificate Order and are approved for the purposes detailed below. Additional Compliance Filings will be required for future phases of construction.

      The Commission orders:

      1. Compliance Filing 47 as filed by Baron Winds, LLC on August 9, 2021, pursuant to Condition 47, is approved for all phases of construction.

      2. Compliance Filing 51(b) and (c) as filed by Baron Winds, LLC on April 15, 2022, and supplemented on April 28, 2022, pursuant to Condition 51(b) and (c), is approved for turbine erection and delivery.

      3. The Site Engineering and Environmental Plan (SEEP) supplemented by Baron Winds, LLC on August 9, 2021, and further supplemented on April 15 and April 28, 2022, pursuant to Condition 52, is approved for the purpose of turbine erection and delivery.

      CASE 15-F-0122

      -9-

      4. This proceeding is continued.

      By the Commission,

      (SIGNED) MICHELLE L. PHILLIPS, Secretary

      * * *

      Footnotes:

      1/ Case 15-F-0122, Order Granting Certificate of Environmental Compatibility and Public Need, With Conditions (issued September 12, 2019).

      2/ Case 15-F-0122, Order Approving Amendment (issued May 6, 2020).

      3/ Under 16 NYCRR Sec.1002.2, "[t]he applicant may not commence construction of all or any portion of the facility or interconnections for which the Board has required approval of a compliance filing as a condition precedent to such construction until the applicant has submitted the required compliance filing for that portion of the facility and received approval of it by the Board, or by the Commission after the Board's jurisdiction has ceased."

      4/ "Compliance filings will not be effective until approved by the Board or by the Commission after the Board's jurisdiction has ceased."

      5/ Specifically, PSL Sec.168(7) states that "[f]ollowing any rehearing and any judicial review of the board's decision, the board's jurisdiction over an application shall cease, provided, however, that the permanent board shall retain jurisdiction with respect to the amendment, suspension or revocation of a certificate."

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