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N.Y. PSC Issues Order Approving Compliance Filing 56 Involving Baron Winds

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ALBANY, New York, Nov. 24 -- The New York State Public Service Commission issued the following order approving compliance filing 56 (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 FILING 56

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 Order)/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 utility-scale wind energy facility (the Project) in the Towns of Cohocton, Dansville, Fremont and Wayland, in Steuben County, New York. The Certificate Order contained Certificate Conditions that require several compliance filings by the Certificate Holder, including conditions for construction and operational impact mitigation,/2 to be approved by the Siting Board, or the Public Service Commission (Commission), once the Siting Board's jurisdiction has ceased, As detailed in this Order, the Certificate Holder submitted compliance filing 56 on July 16, 2020, and supplemented the filing on August 25, 2020. Through this Order, the Commission approves this compliance filing for the purpose identified below.

BACKGROUND

Condition 56

Certificate Condition 56 requires the Certificate Holder to submit the following:

Final Detailed Geotechnical Engineering Report verifying subsurface conditions at each turbine location. The report shall identify appropriate mitigation measures required in locations with highly corrosive soils, soils with a high frost risk, and soils with high shrink/swell potential. The report shall characterize subsurface conditions where HDD is proposed and identify all locations where blasting operations will be required.

PUBLIC NOTICE

The Certificate Holder filed Compliance Filing 56 on July 16, 2020, and then filed a supplement for this filing on August 25, 2020, as required under 16 NYCRR Sec.1002.2(c)(1-5). 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 for Compliance Filing 56.

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)/3 the Commission has the jurisdiction to approve these compliance filings./4

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 rules, 16 NYCRR Sec.1002(1), establish 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." 16 NYCRR Sec. 1002.2 describes the procedures that a certificate holder must comply with, including filing requirements, notice procedures, and outlines the jurisdiction of the Siting Board and the Commission in approving compliance filings. 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_56

Pursuant to Certificate Condition 56, the Final Detailed Geotechnical Engineering Report was submitted on July 16, 2020, and supplemented on August 25, 2020. The Final Detailed Geotechnical Engineering Report was reviewed by Department of Public Service Staff (DPS Staff) and was found to properly provide a geotechnical engineering evaluation verifying subsurface conditions at each turbine location throughout the Project area. No plans for mitigation in locations where highly corrosive soils, soils with a high frost risk, and soils with high shrink/swell potential were needed as no locations meeting this criteria were identified. The Final Detailed Geotechnical Engineering Report includes characterization of subsurface conditions where horizontal directional drilling (HDD) is proposed and identifies all locations where blasting operations will be required. Accordingly, the Commission finds that the Final Detailed Geotechnical Engineering Report as filed and supplemented reasonably assures compliance with Certificate Condition 56 of the Certificate Order.

CONCLUSION

The Commission finds that Compliance Filing 56, as filed, reasonably assures compliance with the corresponding Certificate Condition in the Order and is approved.

The Commission orders:

1. The Final Detailed Geotechnical Engineering Report filed by Baron Winds, LLC on July 16, 2020, and supplemented on August 25, 2020, pursuant to Condition 56, is approved for all phases of construction.

2. This proceeding is continued.

By the Commission,

(SIGNED)

MICHELLE L. PHILLIPS, Secretary

* * *

Footnotes:

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

2/ 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."

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

4/ 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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