How Will Article 10 Work?

On Aug. 4, 2011, New York restored and updated its long-expired Article 10, which governs in-state siting of new, repowered or modified electric generating facilities over 25 MW.

The new Article 10, like its predecessor, centralizes siting authority in the New York State Board on Electric Generation Siting and the Environment and is intended to guarantee developers a streamlined, time-certain permitting process.

By lowering the size threshold from 80 to 25 MW, Article 10 permits more wind, solar and other renewable projects to use its streamlined process while continuing to recognize the authority of local interests over smaller projects that have more local impacts.

Implementing regulations were proposed this spring, with comments due by the end of May.

Noteworthy provisions of the proposed regulations are:

■ Disclosure of sensitive, detailed capital cost estimates. Not appearing to be required by Article 10, Section 1001.14 of the regulations requires applicants to provide detailed capital cost estimates, along with supporting work papers. The proposed disclosures would require developers to air competitively sensitive commercial information; fear of which could discourage developers from siting new projects or risk distorting a fully competitive market by permitting market participants to influence competitive bid processes like the New York State Energy Research and Development Authority solicitations.

■ Minor design revisions trigger substantial scrutiny. Certain minor project design changes such as shifting collection lines, interconnection lines or access roads could trigger more scrutiny and fees if such change is deemed a “revision” under Section 1000.2(ak) rather than a “modification” under section 1000.2(x). This

■ High bar for ignoring local laws. Section 1001.31(e) requires that before asking the siting board to find that a compliance with a local law would be unreasonably burdensome, applicants must show it is technically impractical to comply with the local requirement or the costs to consumers of the applicant’s doing so would outweigh its benefits. In comparison, Article 10 gives the siting board discretion to overrule local laws that pose an unduly burdensome barrier. Arguably, then the implementing regulations adopt a more onerous standard than that contemplated in the actual legislation.

■ Low bar for forcing administrative hearings. Section 1000.12 allows parties, including those seeking to challenge or delay a project, to force an administrative hearing upon a showing of material and relevant concerns. This could expose developers to costly litigation of potentially frivolous issues. Article 10 does not codify a higher standard but would permit the siting board to impose a substantive and significant standard, which would prevent litigation concerns.

■ Long lead time for public involvement program (PIP) plan. Section 1000.4(d) requires applicants to submit a PIP plan at least 150 days before the preliminary scoping statement. Added to the three-month pre-application (1000.5(c)) and yearlong application, this five-month wait appears to extend the certification time line to 20 months—nearly twice the duration proposed in the notice of proposed rulemaking.

■ Costly detail for preliminary design drawings, noise and vibration studies, and site studies. The requirement discourages applicants from improving the design once it has been submitted for fear such changes might be deemed “revisions” under the law.

These studies depend on variables that cannot be known at the application stage, and the specificity sought adds costly layers of complexity without achieving any corresponding benefit.
Section 1001.21 requires construction-level detail of site geology, seismology and soils, which would impose a potentially large cost at the application stage.

■ Early-stage site safety response plans and New York State Division of Homeland Security and Emergency Services review. Section 1001.18(d) requires applicants to ask the New York State Division of Homeland Security and Emergency Services to review plans, seeming unnecessary for relatively small projects, especially small renewable resources.

■ Study radius of groundwater analysis and storm water plans. Section 1001.23 requires detailed groundwater analysis and storm water plans.

The proposed regulations highlight some potential early-stage obstacles the siting board could impose on in-state developers.

Taken together, these obstacles would seem to undercut the objective and limit the effectiveness of Article 10, as well as frustrate the desire of developers and consumers that the legislation streamline permitting. (Electric Light & Power, by Frederick R. Fucci and Daniel A. Broderick, Dickstein Shapiro LLP, 9/1/2012)

LIPA Turmoil

Michael Hervey, who has been the acting CEO the Long Island Power Authority since Gov. Andrew M. Cuomo took office. He is leaving at the end of the year. National Grid has operational control of the system. Until last week, LIPA's 15-member board of trustees had seven vacancies and enough internal turmoil to create uncertainty over whether it could find a quorum to perform routine business.

Cuomo still has to find a few more board members with the skills most needed now. In the past, we have said a 15-member board was too unwieldy.

The new CEO must oversee the intricacies of switching the management of the electrical system from National Grid to PSEG of  New Jersey, which won the contract to begin operating the system in 2014. As part of that process, the LIPA chief will have to determine who from Grid should stay on, what equipment and other property belongs to LIPA and who will keep track of that inventory.

Some challenges:

With no automated outage notification system likely to be in place anytime soon, how will LIPA know who has lost power in another major storm?

When LIPA establishes a timeline for restoration, who will communicate it? And how? There isn't anyone there capable of doing more than writing a simple press release.

Does LIPA know how many of the restorations made after Sandy are not permanent ones? In many cases, it will only be able to calculate what was done and who performed the work when it gets detailed bills from the out-of-state utilities. That's many months away.

LIPA is now a public authority that owns its transmission and distribution system but contracts its operation to a private utility, currently National Grid. The other options are finding an incredibly creative way to deal with LIPA's debt and sell the system to a private operator -- or devising yet another public-private hybrid that can be more effective than a public authority to provide reliable power and stable rates.  (Long Island Newsday, 12/14/2012)

In the aftermath of Hurricane Sandy, Consolidated Edison (ConEd) is evaluating whether to underground the entirety of its distribution network, an undertaking that would cost $40 billion.

ConEd is also speaking with the New York Public Service Commission (PSC) about increasing its $2bn annual investment in electric, gas and steam infrastructure.

Sandy took out one-third of ConEd's service territory, or about 1 million customers, quintupling the number of outages the company had seen in recent years from the worst storms, typically Nor'easters.

The majority of the utility's distribution cable is already underground – 94,000 miles of more than 130,000 miles total. To take the rest of the system underground – more than 37,000 miles of overhead lines and 49,000 transformers – would also require taking telecom and cable lines underground, for an additional $20bn, bringing the total cost of undergrounding the infrastructure to $60bn.

A ConEd study two or three years ago evaluated the cost of undergrounding the distribution network in Westchester County and Staten Island in New York. IT was estimated it could triple people's rates to put things underground. The Sandy recovery costs have provided a point of comparison between preventive and reactive measures. Sandy narrowed the gap between the cost of recovery and prevention.

New York Gov. Andrew Cuomo on Dec. 3 requested $42 bilion from the federal government for Hurricane Sandy recovery.  The estimated economic toll is $60 billion just for New York – that doesn't include New Jersey.

ConEd has so far committed to spend $250 million to reinforce its system for flood prevention, but has not yet identified exactly what measures it will take. The company has so far spent $330m on Sandy recovery costs, and expects that number to rise to between $350m and $450m. ConEd has estimated it would cost $800m for substation reinforcement – elevating equipment or building flood walls around substations that are near the waterfront. Ten substations are vulnerable to a major hurricane or storm.  (Energy Biz, 12/16/2012)

Millenium Pipeline Minisink New York Compressor Station

FERC Order Issuing Certificate

Issue July 17, 2012

Minisink Compressor Station

On July 14, 2011, Millennium Pipeline Company, L.L.C. (Millennium) filed an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission’s regulations for a certificate of public convenience and necessity authorizing it to construct and operate a new compressor station and related facilities in the Town of Minisink, Orange County, New York (Minisink Compressor Project). Millennium states that the proposed Minisink Compressor Project will enable it to transport an additional 225,000 dekatherms (Dth) per day to its interconnection with Algonquin Gas Transmission, LLC (Algonquin) at Ramapo, New York. For the reasons discussed below, the Commission granted Millennium’s requested authorization, with appropriate conditions.

The Federal Energy Regulatory Commission (FERC) approved the project by a 3 to 2 vote by Commissioners. A rehearing is currently being considered by FERC, and if it’s denied Minisink will  move on to Federal Court, however residents are prevented from doing so by a FERC-issued tolling order. In the meantime, Millennium is fully underway with the project, despite local opposition, and lack of a final legal determination. (FERC, Stop The Minisink Compressor Station)

Rockaways/Jamaica Bay Natural Gas Pipeline Proposal

A proposed natural gas pipeline in the Rockaways could bring cleaner, cheaper energy to New York City. The project — a conduit running from the Atlantic Ocean, under the Rockaways and Jamaica Bay, and then into southeast Brooklyn would save customers money, eases dependence on foreign oil and is cleaner than other fossil fuels. Brooklyn hasn’t seen a new delivery point in 50 years. National Grid, the utility that delivers gas to Brooklyn, says that as the need for natural gas grows, the system must be expanded.

Until environmental-impact studies are done, though — especially on the pipeline’s effect on the ocean side of the Rockaway peninsula, where the plan calls for more invasive digging than on the bay side — many environmentalists are withholding support.  Supporters say that the construction would generate 300 jobs and that the finished station would bring the city $8 million annually in property taxes.

The $265 million project, which would take about a year to complete, consists of three pieces: a three-mile connector, built by the Williams Companies, between the existing Transco pipeline in the Atlantic Ocean and the Rockaways; a one-and-a-half-mile line starting in the Rockaways and passing under Jamaica Bay and Gateway National Recreation Area land to Floyd Bennett Field, the decommissioned airport that is part of Gateway; and a metering station built in an unused hangar at Floyd Bennett Field.

The Bloomberg administration, which calls for expanding the use of natural gas in its PlaNYC 2030 initiative, encouraged Representatives Gregory W. Meeks of Queens and Michael Grimm of Staten Island to jointly sponsor a federal bill, passed in February, that authorized the use of national parkland for the project.

The pipeline would be laid using a relatively noninvasive method involving a horizontal directional drill, which drills a small hole, bores underground and then gradually widens the hole. This would avoid digging up Rockaway beaches or Jamaica Bay. But 2.23 miles of pipeline in the ocean will be laid by traditional methods, requiring extensive digging.

Two community boards, No. 14 in Queens and No. 18 in Brooklyn, have also raised objections to the project. For the Brooklyn board, the deal breaker was the proposal to build the meter and regulator station at Floyd Bennett Field.  (NYT, 9/4/2012)

NY City Council Institutionalizes Climate Change Panel

The NYC Council passed legislation (Int. No. 834) institutionalizing two panels on climate change. One panel contains scientists and the other consists of health and other agencies that can look at the data and make recommendations that can help us adapt to climate change.

It is the only municipality in the country to act by local law and it is the only one to specifically protect vulnerable populations. The Mayor’s previously appointed panel did not do this. The bill passed 44-0 yesterday.

Alec Baldwin Wants To Build Wind Turbine On His Property

Alec Baldwin is proposing to build a 120-foot-tall wind turbine on his Amagansett property in East Hampton, Long Island. The "30 Rock" star's proposal to erect a turbine that can generate up to 10,000 kilowatts of electricity a year is jeopardized by a strict set of rules intended to preserve the area's rural and historic scenery. It would be the first residential turbine in town.  that has a windmill on its seal—Mr. Baldwin said he is trying to escape the Long Island Power Authority's high rates and draw attention to the need for renewable energy.  Baldwin grew up in Long Island in Massapequa.

He will have to overcome several hurdles before the turbine can be built. First, he'll need to contend with rules put in place by the Potter family, the former owners of the 69-acre farm that was subdivided in 1995 into 12 lots that include Mr. Baldwin's. Provisions attached to the subdivision regulate the pitches of roofs and style of window frames allowed there, and while they don't mention wind turbines, they do ban radio towers and dish antennas.

If he works past the subdivision's rules, Mr. Baldwin would need the East Hampton Town Board to approve his project.  All of his neighbors are front and center against the wind turbine. The proposal, which will require a public hearing.

Mr. Baldwin's turbine would be one of only 13 on Long Island, according to the Long Island Power Authority (LIPA). East Hampton, like other Long Island towns, has few rules regulating wind turbine installation beyond requiring Town Board approval. Suffolk County is working with the island's five easternmost towns, where almost all of the island's wind turbines currently stand, to come up with a uniform set of rules.

Mr. Baldwin's turbine is expected to cost $97,050, but that price will be offset by an anticipated $38,185 rebate from LIPA and a $17,660 federal tax credit, according to GreenLogic, a renewable energy company that prepared Mr. Baldwin's application. LIPA has subsidized "backyard" wind turbines since 2009.

There may be some concern that Mr. Baldwin could start a trend. Mr. Wilkinson has asked his office to explore what the town would look like if all residents eligible to put up windmills did so. (WSJ, 7/16/2012)

NRC Review Concludes IP Thermal Plume in Compliance

Indian Point

NRC regulations for license renewal environmental reviews establish the primary role of the U.S. Environmental Protection Agency (EPA) (or States, when applicable) in water quality regulations as they relate to impacts on aquatic species. As such, the assessment of impacts from heat shock is within the purview of the responsible government agency.

In the case of IP2 and IP3, NYSDEC is the responsible agency. NYSDEC regulations at 6 NYCRR Part 704 establish specific standards that apply to thermal discharges within the State of New York. The standards are set to “assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water” to which heated water is discharged (6 NYCRR 704.1(a)).

Section 4.1.4.4 of this FSEIS supplement describes the thermal plume studies (Swanson et al. 2010, 2011a) that Entergy submitted to NYSDEC and NYSDEC’s (2011) conclusions regarding these studies. NYSDEC concluded that the results of the thermal plume studies provide reasonable assurance that the IP2 and IP3 discharge is in compliance with NYSDEC’s water quality standards and criteria for thermal discharges.

Based on Entergy’s thermal plume studies and NYSDEC’s conclusions, the NRC staff concludes that the impacts from heat shock to aquatic resources of the lower Hudson River would be SMALL. (NRC)

Bill Magwood Tours Indian Point

Bill Magwood, Norris McDonald

Nuclear Regulatory Commissioner Bill Magwood visited the Indian Point nuclear power plant this week and toured the Hudson with Riverkeeper, the reactor's leading opponent. Based on a two-hour visit at the nuclear plant, William D. Magwood, one of the five members of the Nuclear Regulatory Commission, declared that Indian Point is "operating on a very high standard right now.

Magwood has visited a dozen plants around the country as part of his "personal education" and community outreach efforts. The commissioner praised Indian Point owner Entergy Corp. for taking some "very positive, very forward-leaning" steps by installing new equipment and procedures to deal with emergencies at a level that is not required in its current license.

Magwood's first-ever visit to the 250-acre Buchanan facility included a briefing with local media. Afterward, he and an aide drove to Peekskill's scenic Riverfront Green Park, where they boarded Riverkeeper's patrol boat.  Magwood is the first NRC official to ever go on the water with Riverkeeper.

Indian Point owner Entergy Corp. has filed an application to continue operating the nuclear power plant for another 20 years. The NRC released passing grades to the facility's two reactors earlier this month after an annual inspection. (Newsday, 5/29/2012)

Fracking Wastewater Disposal Is Complicated

Most of New York State’s drilling waste is sent to sewage-treatment
 plants within the state, like the one in Auburn, N.Y
Heather Ainsworth for The New York Times

A Niagara Falls water utility wanted to treat toxic waste from natural-gas drilling at its sewage-treatment plant once hydrofracking gets under way in New York State. But in a unanimous vote, the Niagara Falls City Council blocked the plan this spring by banning the treatment, transport, storage and disposal of drilling fluids within city limits.

The thought of having fracking fluids trucked into the city, treated and discharged into the Niagara River frightened local residents, many of whom still recall the Love Canal environmental crisis of the 1970s.

As New York State environmental regulators fine-tune proposed rules governing horizontal hydraulic fracturing, or fracking, a controversial natural-gas extraction process, wastewater has emerged as a challenging issue for the industry and regulators.

The drilling involves injecting vast amounts of water and chemicals into underground shale to release the gas. Should it begin in New York, the gas wells could generate hundreds of millions of gallons of toxic wastewater annually, and it is not clear where it could go.

Federal officials have warned that New York should not count on the disposal options that it now uses for salty wastewater from conventional gas wells, which produce far less waste than fracking.

Most of the state’s conventional drilling waste stays in New York and is sent to sewage-treatment plants like one in Auburn, N.Y., near Syracuse or is used to de-ice roads or tamp down dust on them, state regulators said. The state also sends waste to privately owned treatment plants in Pennsylvania and Ohio.

In written comments on New York’s proposed fracking rules, the federal Environmental Protection Agency has said that the state should ban the use of fracking brine on roads because pollutants could make their way into aquifers and waterways through infiltration and storm runoff.

The agency also warned that there was probably not enough capacity at out-of-state treatment plants to handle polluted water from New York.

The E.P.A. is currently working on national pretreatment standards for waste headed for municipal sewage-treatment plants or private treatment plants, after finding that many of them are not properly equipped to treat this type of wastewater and may be discharging pollutants to rivers and other streams.

Building new treatment plants for the fracking industry is another option, but industry representatives say that doing so would depend on whether the investment makes economic sense. Complicating matters, antifracking sentiment has already led to dozens of bans or limits on fracking-related operations, like the measure in Niagara Falls.

The state environmental agency has already made clear that specific disposal plans must be in place before any drilling permits will be issued — and that finding sites will be up to the gas industry. (NYT, 5/3/2012)

Group Challenges DEC Lack of Info On Fracking Waste

Environmental Advocates, an environmental lobbying group, has challenged the state Department of Environmental Conservation in a report Friday claiming that the state fails to keep track of waste generated by low-volume natural gas hydrofracking. After examining DEC paperwork for 100 existing gas wells located in Western New York and the Finger Lakes region, researchers for Environmental Advocates of New York claimed the agency's records made it "nearly impossible" to track drilling waste from individual wells to disposal.

The report from the not-for-profit group was based on DEC records obtained under the state Freedom of Information Act. It claimed that "DEC does not know how much drilling waste is being produced or where it is going. Only the gas companies know, and they're not talking."

Low-volume vertical hydrofracking is legal in the state, unlike high-volume horizontal hydrofracking, which uses the same blend of chemicals, water and sand, but in much larger quantities over a much larger underground area.

Opponents fear the horizontal technique could pollute air and groundwater, but the industry argues it is safe. DEC has been studying the issue for more than three years amid an ever-louder debate. A state decision remains pending.

A vertical well could produce up to 200 gallons of wastewater a day, much less than the millions of gallons produced by a horizontal well. There are about 6,600 gas wells operating in the state, with about 90 percent using the low-volume technique, the report said.

State law exempts hydrofracking waste from being monitored under hazardous waste law, which would provide a clearer paper trail of what was in the waste, how much came from a well, and where it was disposed.

In 2010, according to DEC, there were about 23.6 million gallons of hydrofracking waste produced in the state, including salty brine water brought up from underground. More than 10 million gallons were sent to municipal sewer treatment plants, and another 6.8 million gallons were spread on local roads to hold down dust or provide traction during winter months. Another 6 million gallons were sent to other states for treatment or disposal. (Times Union, 5/4/2012)

New York Assembly Hearing on IPEC

The New York State Assembly Standing Committee on Energy and Standing Committee on Corporations, Authorities and Commissions held a hearing on the Potential Closure of Indian Point Energy Center (IPEC) on January 12, 2012 in New York City. The hearing examined alternatives to IPEC, including new generation facilities and upgrades to the state's electric transmission system that would prevent power supply disruptions and adequately address the electricity needs of New Yorkers.

Norris McDonald Statement

Indian Point Energy Center, located in Buchanan, Westchester County, New York, has two active nuclear reactors with a combined rated capacity of 2,000 megawatts. In 2012 and 2015 respectively, the Nuclear Regulatory Commission (NRC) operational licenses for both reactors will expire. Entergy Corporation, which operates both reactors, has petitioned the NRC to operate the reactors for an additional 20 years.

Norris McDonald Interviewed by Channel 1

The hearing was held in New York City in the Assembly Hearing Room at 250 Broadway on the 19th floor in room 1923.
 
Center President Norris McDonald was interviewed by Channel 1, quoted in The New York Times and quoted in Your News Now.