Professional Documents
Culture Documents
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
UNDISPUTED FACTS
A. Galloo identified the presence of an active eagle nest
before applying to construct and operate a major electric
wind generating facility.
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<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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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.
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18 Id.
19 Ruling, p. 13.
20 Id.
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<END CONFIDENTIAL
INFORMATION>
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
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Respectfully submitted,
Andrea Cerbin
Assistant Counsel
Office of General Counsel
Department of Public Service
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