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STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

Case 15-F-0327 - Application of Galloo Island Wind LLC for


a Certificate of Environmental
Compatibility and Public Need Pursuant to
Article 10 to Construct a Wind Energy
Project.

DEPARTMENT OF PUBLIC SERVICE STAFF


RESPONSE TO MOTION TO DISMISS

PRELIMINARY STATEMENT
As requested by the Administrative Law Judges, the
Department of Public Service (DPS) Staff submits the following
response to the Second Motion to Dismiss (Second Motion) on
behalf of individual party Schneider in the above-referenced
case.

REGULATORY FRAMEWORK
The Second Motion seeks relief under 16 NYCRR
§1000.16(e), entitled “amendment revocation and suspension of a
certificate.” This section does not apply here because no
Certificate of Environmental Compatibility and Public Need
(Certificate) has yet been granted by the New York State Board
on Electric Generation Siting and the Environment (Siting
Board). Under 16 NYCRR §1000.14, however, a motion to dismiss
could be considered “[w]henever, in the absence of any genuine
issue as to any material fact, it appears that the statutory
requirements for a certificate cannot be met, the board may
dismiss the application seeking such certificate and terminate
the proceeding in question upon the motion of any party or upon
its own motion.”
CASE 15-F-0327

Parties in this case have an obligation under the


Commission’s rules of procedure for truthfulness pursuant to 16
NYCRR §2.1, which states that “all persons appearing before the
[Board] … must conform to the standards of conduct required of
attorneys appearing before the courts of the State of New York.
Any person signing a pleading or brief or entering an appearance
in any proceeding will be considered to have agreed to conform
to those standards. A failure to conform to those standards
will be grounds for exclusion from that and any later
proceeding.” Finally, under 16 NYCRR §5.10 “[i] If a party
fails or refuses to comply with a directive to disclose
material, or renders incomplete or substantially misleading
responses, the presiding officer may: (a) take as established,
to the disadvantage of the recalcitrant party, specified facts
related to the matter at hand; (b) prohibit the recalcitrant
party from introducing the evidence concerning which the
discovery request was made; or (c) take such other action as may
be proper in the circumstances.” The Siting Board has in these
regards adopted the Commission’s regulations (16 NYCRR §1000.3).
DPS Staff provides the following presentation of facts
to assist the ALJ in their review of the motion.

UNDISPUTED FACTS
A. Galloo identified the presence of an active eagle nest
before applying to construct and operate a major electric
wind generating facility.

Galloo Island Wind, LLC (Galloo or the Applicant), a


subsidiary of Apex Clean Energy (Apex), intends to develop a
utility scale wind facility on Galloo Island (the Facility).

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CASE 15-F-0327

During an April 13, 2017 point count1 survey to support


Galloo’s permit application under the federal Bald and Golden
Eagle Protection Act (BGEPA), Stantec Inc. (Stantec), Galloo’s
avian consultant, observed a nest on Galloo Island.2 According
to the field notes the Stantec biologist transcribed, <BEGIN
CONFIDENTIAL INFORMATION>

<END CONFIDENTIAL INFORMATION>


On April 25, 2017, Western EcoSystems Technology, Inc.
(West) evaluated the nest using helicopter surveillance,
confirming the existence of a stick nest. The West report
states that <BEGIN CONFIDENTIAL INFORMATION>

<END
CONFIDENTIAL INFORMATION>
The Applicant met with the New York State Department
of Environmental Conservation (DEC), the USFWS, and DPS in early
May 2015 to finalize the preconstruction avian study plan for

1
A point count is a method of monitoring bird population.
2 Galloo Response to CS-CM 2, produced on September 5, 2018.
3 Galloo, E-mail response, November 16, 2018.
4 Id.
5 Galloo Response to CS-CM 12, produced on November 16, 2018.
6 Id.

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CASE 15-F-0327

Galloo Island. On August 30, 2017, the Applicant also met with
the United States Fish and Wildlife Service (USFWS) to
coordinate its potential response to future eagle nesting.

B. Gallo failed to disclose the eagle nest’s presence in its


Application to construct and operate a major electric wind
generating facility.

Galloo filed its Public Service Law (PSL) Article 10


Application on September 25, 2017, proposing to construct and
operate a 108.9 megawatt (MW) wind electric generating facility
on Galloo Island in the Town of Hounsfield, Jefferson County,
New York.
The Application contains several statements about bald
eagles, but does not identify the presence of a nest, possible
or actual.7
While the Application states that Stantec performed
studies in 2017, it relies on an e-mail from the Department of
Environmental Conservation (DEC) Staff, received April 13, 2017,
that states “[t]here are no known eagle nests within the
Facility Site, and the closest documented eagle nest is more
than 14-18 miles away to the east around Black River Bay and
north on Carleton Island.”8 However, on the same day the
Applicant received this e-mail from DEC, a Stantec biologist was
physically present on the Island and noted <BEGIN CONFIDENTIAL
INFORMATION>

7 See e.g., Application, Appendix DD, p. 20.


8 Application Exhibit 22, p. 48. (B. Denoncour, NYSDEC,
pers. comm., April 13, 2017).

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CASE 15-F-0327

<END CONFIDENTIAL INFORMATION>


The Application further describes the habitat for bald
eagles, stating that “[w]hile there are no records of bald eagle
nests on or near Galloo Island, the 493 acres of forest habitat
on the island can be considered potentially suitable habitat for
bald eagle roosting.” Moreover, the Application states that
while no current or historical bald eagle nests have been
documented on the island, the eagle population is expanding and
may begin nesting at some point in the future if it is not
deterred or displaced by the Facility. The Applicant goes on to
state that the Facility is not expected to impact nesting
eagles.10

C. Galloo failed to disclose material information in its


September 5, 2018 discovery response.

In August 2018, Mr. Schneider, an individual party in


the PSL Article 10 case, received information and photographs
concerning the possible existence of an eagle’s nest on Galloo
Island.11
On August 24, 2018, Mr. Schneider, as part of his
discovery in this proceeding, requested the Applicant provide
information about whether Galloo’s avian consultant, Stantec,
had noted any bald eagle nesting activity or other evidence that
would substantiate claims that bald eagles had nested on Galloo
Island in the recent past.

9 Galloo, E-mail response, November 16, 2018.


10 Application, Exhibit 22 p. 49-50.
11 Schneider Response to DEC Conditions, September 4, 2018.

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CASE 15-F-0327

The Applicant’s September 5, 2018 response showed that


the Applicant did not disclose in its Application that a Stantec
biologist observed a nest and that West had observed the same
nest using aerial photography in April of 2017.12

D. Maurer-Schneider’s first Motion to Dismiss the Application.

On September 13, 2018, individual parties Maurer-


Schneider jointly submitted their first Motion to Dismiss (First
Motion) Galloo’s Application alleging that Galloo and its
consultants deliberately omitted information about the presence
of the nest from Galloo’s Application.

E. Galloo’s subsequent discovery response failed to disclose


fields notes.

In September of 2018 individual parties Maurer-


Schneider requested that Galloo produce additional point count
survey data.13 On September 19, 2018 Galloo, objected to
providing the April 13, 2017 Stantec point count survey results
as being “irrelevant and immaterial to the Article 10
proceeding.”14
Thereafter, parties Maurer-Schneider requested copies
of data sheets, field notes and photos for the date when Stantec
staff first noted the nest. (CS-CM 9). Galloo responded,
“[d]atasheets, field notes and photos were not provided” and
that the “potential nest” was reported verbally to them by the
island caretaker.15

12 Galloo Response to CS-CM 2, produced on September 5, 2018.


13 Information Requests (IR) CS-CM 2, 5 and 8.
14 Galloo response to CS-CM 3, produced on September 19, 2018.
15 See, Appendix 1, Galloo Response to CS-CM 2.

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CASE 15-F-0327

On September 21, 2018, at a procedural conference in


this case, DEC stated that it “had no information as to the
existence of any eagle’s nest on Galloo Island” until Mr.
Schneider had sent it information about the nest in August 2018.
DEC did, however, confirm at that time “that there is in fact an
eagle’s nest” on Galloo Island and that it is “an active nest.”16
On September 24, 2018, parties Maurer-Schneider
jointly requested that the Administrative Law Judges (ALJs)
postpone the scheduled evidentiary hearing because of alleged
material errors in the Application that required correction.

F. Galloo’s opposition to the first Motion to Dismiss.

On September 28, 2018, Galloo responded to the First


Motion stating that “assumptions about impacts based on nest
discoveries” were comprehensively addressed in the Application
and that any “modifications to the [a]pplication materials
needed to minimize or mitigate potential impacts will be
developed through the certificate conditions and the hearing
phase of this proceeding.”17
In that September 28 filing Galloo acknowledges that
the nest was brought to its attention in the spring of 2017.
Galloo also maintains that it determined, based on the nest
assessment conducted by West, “that the nest was not used for
breeding in 2017” and that, as result, it “did not believe
further assessment was required or that modifications of the
conclusions in the [a]pplication or the studies which had

16 September 21, 2018 Procedural and Issues Conference, Tr. 74.


17 Galloo Response to First Motion, pp 2-3.

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CASE 15-F-0327

already been conducted were needed considering the measures


already identified to address nests.”18
On October 15, 2018, Galloo responded to parties
Maurer-Schneider’s further discovery request CS-CM 10. The
response included a correspondence between Galloo and its
consultant, West, from 2017 and photographs of the nest taken by
West. Moreover, on October 22, 2018, Galloo, in response to a
DPS discovery request (DPS-41), identified access roads and
collection lines within a few hundred feet of the nest in
question in apparent violation of DEC guidelines.
On October 22, 2018, parties Maurer-Schneider filed
another request for a postponement of this proceeding.

G. Administrative Law Judges denied first Motion to Dismiss


but grant postponement.

October 26, 2018, the assigned ALJs denied the First


Motion, but granted a postponement of the schedule and directed
the Applicant to “[a]t a minimum … update Exhibit 22 and
appendices DD and EE.” 19 The ALJs also directed the Applicant
“to update any other portions of its application that it now
proposes to change because of the identification of the nest.”20

H. The most recent discovery responses revealed that the


Applicant did possess field notes stating that a Stantec
biologist observed an adult eagle siting on a nest.

On November 1, 2018, individual parties Maurer-


Schneider requested that the Applicant “provide digital copies

18 Id.
19 Ruling, p. 13.
20 Id.

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CASE 15-F-0327

of their field notes associated with their bald eagle point


count survey during spring 2017.” (CS-CM 12). On November 16,
2018 Apex provided Stantec’s field notes which as indicated
above state <BEGIN CONFIDENTIAL INFORMATION>

<END CONFIDENTIAL
INFORMATION>

I. Mr. Schneider’s Second Motion to Dismiss.

On November 27, 2018, individual party Schneider filed


the Second Motion, alleging fraud upon the Sitting Board. The
Second Motion further alleges that the Applicant again
misrepresented material facts with respect to the presence of a
bald eagle’s nest on the Facility site. On November 27, 2018,
the assigned ALJs requested comments on the Second Motion.

CONCLUSION
The record reflects that the Applicant and a
consultant had knowledge of a nest, potential or actual, on
April 13, 2017. On April 25, 2017 a second consultant for the
Applicant flew over the nest and confirmed the its existence
using aerial photography. The Applicant knew this information
at least five months prior to filing its Application on
September 25, 2017. It did not disclose the presence of this

21 Galloo, E-mail response, November 16, 2018.

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CASE 15-F-0327

nest in its filing. Only through discovery in this case did


this information become be part of the record.
PSL Article 10 plays an important role in siting
electric generation facilities. The review and permitting
process established by PSL Article 10 depends on parties
affirmatively disclosing information relevant to proposed
projects and doing so in a timely and forthright manner.
The above chronology raises questions about the
timeliness of disclosures and accuracy of statements, and
whether such conduct occurred to obtain advantage in the review
of the application and the development of the project. The
disclosures and statements at issue here concerned a material
issue in the proceeding. While Staff takes no position on the
remedy requested by the movant, significant consequences appear
to be warranted.

Respectfully submitted,

Andrea Cerbin
Assistant Counsel
Office of General Counsel
Department of Public Service

Dated: December 6, 2018


Albany, New York

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