TranscriptPre-Application Conference to Consider Intervenor Funding Requests and to Initiate the Stipulations Process

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2 STATE OF NEW YORKPUBLIC SERVICE COMMISSION

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4 PRE-APPLICATION CONFERENCE TO CONSIDERINTERVENOR FUNDING REQUESTS AND TO INITIATE

5 THE STIPULATIONS PROCESS

6 CASE# 12-F-0410

7Tuesday, May 21, 2013

8 7:00 p.m.Cape Vincent Elementary School

9 410 S. Esselstyne StreetCape Vincent, New York 1361810

11 A.L.J. PAUL AGRESTAAdministrative Law Judge

12 Three Empire State PlazaAlbany, New York 12223-1350

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14 A.L.J. MARIA E. VILLAAdministrative Law Judge

15 625 Broadway, 1st FloorAlbany, New York 12233-155016

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800.523.7887 Associated Reporters Int'l., Inc.

Associated Reporters Int'l., Inc. 800.523.7887

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2 APPEARANCES:

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4 FOR CAPE VINCENT WIND POWER L.L.C.:5 JOHN HARRIS, ESQ.

Brown and Weinraub6 50 State Street

Albany, New York7

FOR DEPARTMENT OF PUBLIC SERVICE:8

ANTHONY BELSITO, Assistant Counsel9 Three Empire State Plaza

Albany, New York

10 FOR THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION:11

FRED MUNK, Natural Resource Supervisor12 7327 State Route 812

Lowville, New York 1336713

FOR THE DEPARTMENT OF AGRICULTURE AND MARKETS:14

DIANE SMITH, Associate Attorney15 108 Airline Drive

Albany, New York 12235

16FOR THE TOWN OF CAPE VINCENT:

17PAUL CURTIN, ESQ.

18 SHULMAN, CURTIN & GRUNDNER, P.C.250 South Clinton Street

19 Syracuse, New York

20 FOR THE TOWN OF LYME:

21 MARK GEBO, ESQ.HRABCHAK GEBO AND LANGONE, P.C.

22 216 Washington Street

Watertown, New York 1360123FOR THE COUNTY OF JEFFERSON:

24MICHAEL DOCTEURE, Jefferson County

25 Legislator, Board of LegislaturesWatertown, New York

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2 FOR THE DEVELOPMENT AUTHORITY OF THE NORTH COUNTRY:

3 DENNIS WHELPLEY, ESQ.SCHWERZMANN and WISE

4 137 Maine AvenueWatertown, New York 13601

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6 FOR THE WIND POWER ETHICS GROUP:

7 SARAH BOSS, ChairmanPost Office Box 435

8 Cape Vincent, New York 13618

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2 A.L.J. AGRESTA: Please come to

3 order.

4 I call Case 12-F-O410, the

5 application of Cape Vincent Wind Power, L.L.C. for

6 a certificate of environmental compatibility and

7 public need to construct an approximately two

8 hundred to two hundred and eighty-five megawatt

9 wind electric generating facility in the town of

10 Cape Vincent, New York.

11 My name is -- I -- I am

12 Administrative Law Judge Paul Agresta. I am the

13 presiding examiner that was designated by the New

14 York State Department of Public Service for this

15 proceeding.

16 With me today is Administrative

17 Law Judge Maria E. Villa. She's the associate

18 examiner designated by the New York State

19 Department of Environmental Conservation. We'll be

20 working together throughout the entire proceeding.

21 I'd like to thank the Thousand

22 Island Central School District for allowing us to

23 use this facility and for the fact that the roof

24 didn't leak when it started raining a few minutes

25 ago.





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2 Tonight's meeting is a

3 preapplication conference. It's being held

4 pursuant to a notice that was issued on May 1st,

5 2013. This conference is being recorded and it

6 will be transcribed into a written transcript that

7 will be available on the siting board's website

8 which is maintained by the Department of Public

9 Service.

10 Therefore, in order to ensure a

11 complete record it will be necessary for those

12 speaking to use a microphone and for everyone to be

13 patient and speak one at a time.

14 Unfortunately, when I call on

15 people to speak they're going to have to come up to

16 the microphone. So there's going to -- we're going

17 to have to all be patient and allow people to move

18 around the room. Okay?

19 Now, at this time I'm going to

20 take appearances and what that means is I'm going

21 to ask the participants in today's conference that

22 are representing organizations or individuals to

23 identify themselves for the record.

24 If you have more than one person

25 in your group only one of you needs to speak for





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2 the group to make the appearance. I will call on

3 particular parties first and hopefully everybody

4 will get the hang of it as we go along.

5 So I would first like to call on

6 the applicant Cape Vincent Wind Power L.L.C. to

7 make their appearance.

8 MR. HARRIS: Thank you, Judge.

9 John Harris from Brown and Weinraub on behalf of

10 the applicant.

11 A.L.J. AGRESTA: Thank you. Next

12 I call on the staff of the Department of Public

13 Service.

14 MR. BELSITO: Anthony Belsito,

15 assistant counsel for the Department of Public

16 Service.

17 A.L.J. AGRESTA: Next I'll call

18 on the Department of Environmental Conservation.

19 MR. MUNK: Fred Munk, natural

20 resource supervisor for the Department of

21 Environmental Conservation, Region Six.

22 A.L.J. AGRESTA: Thank you. The

23 Department of Agriculture and Markets.

24 MS. SMITH: Diane Smith,

25 associate attorney, appearing for the Department of





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2 Agriculture and Markets.

3 A.L.J. AGRESTA: Okay. Are there

4 any other State agencies here today? Okay. Okay.

5 Next we'll take the appearances

6 of the municipalities, town of Cape Vincent.

7 MR. CURTIN: Good evening. Paul

8 Curtin on behalf of the town of Cape Vincent.

9 A.L.J. AGRESTA: Thank you. For

10 the town of Lyme.

11 MR. GEBO: Mark Gebo on the

12 behalf of the town of Lyme.

13 A.L.J. AGRESTA: Thank you.

14 Okay. I'm going to ask my associate examiner to

15 pronounce the next one, the village. You were

16 practicing before.

17 A.L.J. VILLA: Oh, I'll try.

18 Well, I think the French is Chaumont but I heard

19 someone say something that sounded like Chaumong,

20 so for the village of Chaumont. The Village of

21 Chaumont. Appearances for the village. And

22 hearing no response.

23 A.L.J. AGRESTA: Okay. Well, so

24 much for that. At least you won't get in trouble

25 now.





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2 County of Jefferson.

3 MR. DOCTEURE: Michael Docteure,

4 Jefferson County legislator representing the towns

5 of Cape Vincent and Clayton, vice chairman of the

6 board of legislature.

7 A.L.J. AGRESTA: Thank you. The

8 Development Authority of the North Country.

9 MR. WHELPLEY: Dennis Whelpley,

10 Schwerzmann and Wise on behalf of the Development

11 Authority of the North Country.

12 A.L.J. AGRESTA: The Lyme Central

13 School District.

14 Is anyone here on behalf of the

15 Lyme Central School District? Okay.

16 The Wind Power Ethics Group.

17 MS. BOSS: Sarah Boss. I'm

18 chairman of the Wind Power Ethics Group.

19 A.L.J. AGRESTA: Thank you.

20 There was another application made by Karen Stumpf.

21 Is she here? I'm sorry.

22 UNIDENTIFIED FEMALE: Remember

23 that was rescinded? Withdrawn.

24 A.L.J. AGRESTA: Is it completely

25 with -- withdrawn?





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2 UNIDENTIFIED FEMALE: Yes.

3 A.L.J. AGRESTA: Okay. Thank

4 you. Okay. Those are all the people who have made

5 applications or that I know of that are here.

6 Are there any other individuals

7 or groups that are intending to participate in

8 today's conference that would like to make an

9 appearance for the record at this time? Okay.

10 Very good.

11 Okay. Let's spend a minute on

12 process. The -- there are two agenda items for

13 today's conference. Both of these matters are

14 mandated by the Article Ten statute. The first

15 agenda item is intervenor funding. Our plan for

16 that segment is for the examiners to ask questions

17 if they have any of the people that requested

18 funds.

19 We will then hear anyone that

20 wants to make objections to any of the intervenor

21 funding requests. And, then, we will try to make

22 some rulings and actually award funds tonight to be

23 followed up by a -- a longer written ruling.

24 The second agenda item is the

25 initiation of the stipulations process. Our plan





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2 for that segment is to hear anyone that wants to

3 comment or indicate on the record their desire to

4 negotiate stipulations. And, we also plan to

5 discuss any stipulations process questions people

6 may have, and we may also suggest stipulations

7 ourselves, that the parties might want to consider.

8 Having given that summary are

9 there any process questions from anyone before we

10 begin? Okay. Not hearing anybody.

11 The available amount of

12 intervenor funding is ninety-nine thousand seven

13 hundred and fifty dollars. We received ten

14 requests totaling a hundred and fifty-one thousand

15 eight hundred and forty dollars. One of those

16 requests has been withdrawn, so we're down to nine

17 and I'm just going to list them just to make sure

18 that we didn't miss any.

19 There were six from the town of

20 Cape Vincent; three of them were co-applications

21 with the Wind Power Ethics Group.

22 There was one from the town of

23 Lyme, one from the Development Authority of the

24 North Country and one from Lyme Central School

25 District.





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2 Are there any other requests that

3 were made that we are not aware of? Okay. Not

4 seeing any that's good.

5 All right. Let's start with the

6 Lyme -- well, I -- we can't do Lyme Central School

7 District because there's nobody here. I want to

8 state for the record that I spoke with Brian

9 Hartmann representing the Lyme Central School

10 District. Their request primarily was for money to

11 negotiate a payment in lieu of taxes agreement with

12 the applicant. And, I explained to him that such

13 an agreement is outside of the Article 10 process

14 and therefore it's not something that's eligible

15 for Article 10 funding.

16 I suggested that they look at

17 their school facilities to see whether any of them

18 were in close proximity to the proposed facility to

19 see whether they wanted to pursue something along

20 those lines. And I have since determined that

21 their school facilities are not in close proximity

22 to either the turbines or the power line.

23 So as to that application our

24 current inclination is going to be to deny their

25 request because the pilot agreement is not





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2 eligible.

3 Yes.

4 (Off the record discussion)

5 A.L.J. AGRESTA: Oh, yeah. And I

6 did offer to Mr. Hartman an opportunity to amend

7 his request and he did not take advantage of it as

8 far as I know. We did not receive anything in the

9 time period that we gave him. Okay.

10 So, let's go to the next one,

11 Development Authority of the North Country. Could

12 I ask that representative to come forward? Thank

13 you.

14 We note that you raised

15 legitimate issues about potential impacts on a

16 water line that you maintain in a former railroad

17 right-of-way that the applicant wants to use for a

18 power line. And also you're concerned that some of

19 the turbines may be close to the line. However, we

20 did some research into the legal status of the

21 authority.

22 My research indicates that it's a

23 public benefit corporation formed pursuant to

24 Section 2703 of the New York State Public

25 Authorities Law that some of the members of the





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2 authority are appointed by the governor, that its

3 members are state officers pursuant to the New York

4 State Public Officers Law.

5 Therefore, it's a State entity as

6 a -- as a legal matter. Pursuant to Article 10

7 only municipalities and local parties are eligible

8 for funding, so it's -- it's my opinion that

9 unfortunately you're not eligible for funding under

10 the law.

11 MR. WHELPLEY: I would

12 respectfully disagree with that. The authority is

13 a unique creature created under the Public

14 Authority's law. While it may have members

15 appointed by the governor, they are not voting

16 members.

17 A.L.J. AGRESTA: I'm aware of

18 that.

19 MR. WHELPLEY: They have no vote,

20 no say as to the decisions of the Authority. It is

21 truly a local Authority because its voting

22 membership is composed entirely of members that are

23 appointed by the three counties that it serves and

24 the city of Watertown.

25 A.L.J. AGRESTA: Okay. I -- I





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2 did find --.

3 MR. WHELPLEY: No State funding.

4 A.L.J. AGRESTA: I did find a --

5 an opinion of either the attorney general or the

6 state controller, I forget which, that -- that said

7 that a similar authority to yours is a State entity

8 and that the officers are State officers.

9 So I don't think I'm in a

10 position to act on your request now. If you want

11 to perhaps brief it --

12 MR. WHELPLEY: I would like that

13 opportunity.

14 A.L.J. AGRESTA: -- you might be

15 able to pursue it more.

16 MR. WHELPLEY: I would like that

17 opportunity to brief it.

18 A.L.J. AGRESTA: Okay. How much

19 time do you think you would need?

20 MR. WHELPLEY: If I could --.

21 A.L.J. AGRESTA: It's got to be

22 short because if you're going to use the money it's

23 not going to be any good --

24 MR. WHELPLEY: Right.

25 A.L.J. AGRESTA: -- if you take a





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2 long time.

3 MR. WHELPLEY: If I could have

4 just a short summary from you, Judge, as to what

5 exactly your concerns are so I could respond.

6 A.L.J. AGRESTA: Okay. Well, my

7 concern is that -- that you are a State entity and

8 that you're going to find when you research it that

9 your officers are considered State officers under

10 the Public Authority's Law. You're in a similar

11 category with other authorities that are not

12 statewide in scope, yet they're still considered

13 state authorities.

14 I do not have the citations with

15 me but I could send you the materials that I looked

16 at if that would help.

17 MR. WHELPLEY: I -- I would

18 appreciate that so I could respond.

19 A.L.J. AGRESTA: Okay. I will

20 try to do that -- we'll be traveling tomorrow but I

21 should be back in time to do that before the end of

22 the business day tomorrow and I can e-mail that to

23 you.

24 MR. WHELPLEY: That would be

25 great.





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2 A.L.J. AGRESTA: Why don't you --

3 do you have a card with you? Or write on -- on one

4 of my cards exactly where you want me to send it.

5 So we don't have a miscommunication.

6 MR. WHELPLEY: I'll write on --.

7 A.L.J. AGRESTA: And, again, we

8 had no problem with your issue it was just the

9 eligibility that was our problem.

10 MR. WHELPLEY: The only thing I

11 would add to that, Judge, is that the issues are

12 truly local issues and that it is really akin to a

13 collaboration of local municipalities that do not

14 have statewide interest that are truly local

15 interest.

16 It is not a potential burden to

17 the taxpayers of the State. It is a burden akin to

18 local and users of a municipal water system.

19 A.L.J. AGRESTA: Okay. Again,

20 it's truly a legal point and -- and we may have to

21 try to ask the attorney general or somebody else

22 to -- to weigh in.

23 I'm not sure what our process is

24 going to be, but --.

25 MR. WHELPLEY: But I'd look





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2 forward to seeing your authorities so I can

3 respond.


5 you. Okay.

6 The next one's the town of Lyme

7 and good news. We have no questions for you.

8 The next one is the Wind Power

9 Ethics Group. Could we have that representative

10 come to the microphone?

11 MR. CURTIN: Your Honors I'm

12 going to introduce Sally Boss, Clif Schneider and

13 Bob Brown who put together the applications and

14 they can speak to any questions that you have

15 with -- with a great deal of specificity.


17 you. Okay. Could you tell us a little bit more

18 about your organization? How many members do you

19 have? Where do they reside?

20 MS. BOSS: Well, we don't have

21 memberships. Basically it is a large group of

22 people in the community, much more than half of the

23 community I'm sure, who have supported us in our

24 fundraising and putting on educational programs,

25 hiring specialists, experts in different fields.





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2 And we started in 2006 and have continued, became a

3 limited liability corporation.

4 And at this time we are -- have

5 an application in for -- what do I want to say?

6 MR. SCHNEIDER: We have some

7 joint applications for -- for an expert. We had a

8 joint application for a noise specialist, Dr. Paul

9 Sherman and we also have a joint application for

10 the town for a property specialist, Michael McKane.

11 A.L.J. AGRESTA: Okay. Do you

12 have a board of directors?

13 MS. BOSS: Yes, we do.

14 A.L.J. AGRESTA: How many members

15 are on the board of directors?

16 MS. BOSS: There are four.

17 A.L.J. AGRESTA: Are there any

18 people on the board of directors that are not

19 local?

20 MS. BOSS: That are not local?

21 A.L.J. AGRESTA: Yes.

22 MS. BOSS: No.

23 A.L.J. AGRESTA: Okay. And

24 you're not affiliated with any company or

25 non-individual?





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2 MS. BOSS: No.

3 A.L.J. AGRESTA: Okay. Are you a

4 not-for-profit?

5 MS. BOSS: We're working on -- we

6 have an application in for not-for-profit.

7 A.L.J. AGRESTA: Okay.

8 After tonight's proceeding is

9 over could you send me a copy of your certificate

10 of incorporation?

11 MS. BOSS: Yes.

12 A.L.J. AGRESTA: And I'm assuming

13 it's in New York that you're incorporated?

14 MS. BOSS: Yes.

15 A.L.J. AGRESTA: Okay. How are

16 decisions made by your organization?

17 In other words, we have to

18 have -- to give somebody intervenor funding they

19 have to sign a contract with the State and then

20 they have to sign vouchers later on. So could you

21 tell me what would be the process for your

22 organization to do that?

23 MS. BOSS: At a -- one of our

24 meetings we would present it to the -- to the

25 people and they would vote on it. And, the -- then





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2 the officers would follow through on what the

3 request was.

4 A.L.J. AGRESTA: Okay. So

5 it's -- it's generally like a corporation or it is

6 a corporation and you have a board. And presumably

7 the board could pass a resolution authorizing

8 someone to sign the vouchers on behalf of the

9 corporation?

10 MS. BOSS: Right.

11 A.L.J. AGRESTA: Okay. I'm

12 probably going to want you to do all those things

13 as part of the process. Okay. Okay.

14 Now for the joint applications

15 between the town and the Wind Power Ethics Group,

16 is the intention that both parties are going to

17 sign the three co-app. -- the three contracts for

18 the co-applications? Okay. That's fine.

19 You should be aware that that

20 also means you're going to have to cosign any

21 voucher that comes in or any other further

22 document.

23 MS. BOSS: Okay.


25 MR. SCHNEIDER: Is it possible





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2 for one of the entities to take the lead and do

3 that even though it's a joint application?

4 A.L.J. AGRESTA: No.

5 MR. SCHNEIDER: Okay. So, if

6 it's a joint application we both -- we have to go

7 through the process?

8 A.L.J. AGRESTA: Yes. And I just

9 want you to understand it. I had -- we had some

10 question about the travel estimates and the

11 estimates of how much time would be spent at

12 stipulations conferences and this is -- this is for

13 the town as well as the Wind Power Ethics Group.

14 I was wondering if you could

15 describe for me what your process expectations are

16 that led you to those estimates.

17 MS. BOSS: Would you take care of

18 that, Clif?

19 MR. SCHNEIDER: I -- I can

20 address that, your Honor.

21 When we -- when we began this

22 process in contact with you about some procedural

23 things we talked about the fact that stipulation

24 was going to be an important part an integral part

25 of the whole thing.





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2 And we mentioned the fact that

3 some of these experts were living in different

4 places in different locales and we -- we thought in

5 terms of having thoughts of how much time would be

6 required.

7 We had no idea in terms of the

8 stipulation process. So we had -- we -- we planned

9 for the three days of -- of twenty-four hours of

10 this stipulation. Of course, most of these experts

11 are a couple hundred dollars a pop, so it became

12 very, very expensive. The travel estimates as

13 well. There was -- most of them are -- are outside

14 the area. They have to fly in and one had to -- so

15 with all of that required it actually doubled all

16 of our estimates, but -- but at the time we wanted

17 to make sure that we had enough money to -- to fund

18 these people who were coming here.

19 Now if there's some other option

20 that's available where we can have better

21 organization where there's just a day required

22 for -- for interviewing funding. So, yes, we

23 could -- we could trim some money away and save

24 some money.

25 A.L.J. AGRESTA: Okay. I -- I





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2 want to make sure you understand that the process

3 of negotiating stipulations with the applicant it's

4 not a hearing where you're before us and there's

5 somebody taking a record and the person has to

6 physically be there.

7 There's no reason why you can't

8 exchange drafts by e-mail, have teleconferences,

9 and then perhaps have a face-to-face meeting if you

10 have a thorny issue that needs to be resolved.

11 But I'm hoping anyway the way I

12 envision the process is -- is it's going to be a

13 lot less burdensome than -- than you've planned

14 for. And I -- and I perfectly understand you're

15 not understanding exactly what it was going to be,

16 so you're put in what you thought.

17 Perhaps we can call on the

18 applicant and ask what their expectation is as to

19 how the process is going to work.

20 But let me -- let me explain mine

21 first. Today we're going to make an award of money

22 so that various parties can hire experts. Those

23 experts are going to need a little time to prepare.

24 Then our expectation is -- is

25 that people will exchange drafts of stipulations by





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2 e-mail. And, if they can't resolve their issues by

3 exchanging drafts and having teleconferences to

4 discuss the drafts and the changes then perhaps

5 they would meet in person to try to hammer things

6 out.

7 If there's an impasse you will

8 have the opportunity to bring us in as mediators

9 but that should only be as a -- as a last resort.

10 Everybody should be -- should be

11 working in good faith together to try to come

12 together on stipulations because it is in

13 everybody's interest to have the stipulations in

14 place. It will make the -- the next phase of the

15 application better for everybody.

16 So -- so that's -- my expectation

17 is a lot of this is going to be done by exchanging

18 pieces of paper and having teleconferences not --

19 not so much in person meetings. But if -- I'd like

20 to hear from the applicant and what their

21 expectation is because if it's different from that

22 then we have to know.

23 MR. HARRIS: I would agree with

24 everything you've said. I think I would just add

25 that you might start with conference calls to start





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2 before we start trading e-mails, but the -- your

3 expectation of the process is what we -- what

4 our -- what we envision.


6 you, Mr. Harris. That's very welcome news. Okay.

7 All right. I don't have any more

8 questions for you. Thank you very much.

9 At this time I'm going to give an

10 opportunity anyone who wants to to make objections

11 to any of the requests that were made for

12 intervenor funding and so it's -- if anybody wants

13 to make an objection please put your hand up or

14 stand up now.

15 Okay. Good. Let the record show

16 that nobody came forward to make an objection.

17 Okay. At this time we're going to

18 take -- I'm going to have a brief discussion with

19 the associate examiner and then we're going to

20 announce our awards.

21 So we're going to go off the

22 record for a few minutes. Thank you.

23 (Off the record)

24 A.L.J. AGRESTA: Okay. Come to

25 order please. All right. We're -- we're back on





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2 the record and I'm going to state the awards. And,

3 again, we're going to follow this up with a -- a

4 written ruling that's going to have much more

5 information. Okay.

6 Now, remember there was not

7 enough money for all of the requests so some of the

8 requests have been reduced and we've tried to

9 spread it around a little bit. Not all of them

10 have been reduced, however.

11 The town of Cape Vincent

12 application for expert Phillips. The award will be

13 fifteen thousand five hundred and fifteen dollars.

14 The town of Cape Vincent,

15 Dimmick, sixteen thousand four hundred and ten

16 dollars.

17 Town of Cape Vincent, Curtin,

18 eleven thousand three hundred and twenty dollars.

19 Town of Cape Vincent and Wind

20 Power Ethics Group, Schomer, sixteen thousand eight

21 fifty-five.


23 Power Ethics Group, McCann, fifteen thousand nine

24 hundred and forty dollars.






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2 Power Ethics Group, Evans, six thousand five

3 hundred and sixty dollars.

4 Town of Lyme, eleven thousand

5 dollars.

6 The Development Authority of the

7 North Country we are going to hold off on making

8 the final decision until we've received a brief and

9 the Lyme Central School District we are not

10 awarding any monies.

11 And the -- the other request was

12 withdrawn. So that's our rundown. Did everybody

13 who needed to get the numbers? Okay.

14 All right. This evening's going

15 to go a lot quicker than I thought. Okay. We're

16 now going to discuss the -- we're going to move to

17 the second part of the program for tonight, and

18 that's to deal with the stipulations process.

19 Based on the awards that we just

20 made the parties that are receiving awards have

21 indicated a desire to negotiate stipulations

22 regarding health impacts, setbacks, karst geology

23 and I'll try to explain what karst geology is.

24 As I understand it, there are

25 certain formations of rock underground that erode





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2 away and leaves voids. And that was one of the

3 issues that was raised, maybe caves. I don't know

4 what else. I'm not a karst geologist. Noise,

5 property values, future growth, wildlife and

6 habitat issues and transmission line impacts.

7 So, my expectation is that all of

8 those people who are being awarded money will be

9 attempting to work out stipulations with the

10 applicant on those issues, that's why we gave them

11 the money.

12 At this time we would like to

13 hear from anybody else who wants to negotiate a

14 stipulation with the applicant to come forward and

15 just us a -- the topic area that you want to --

16 that you want the stipulation to be on, just so we

17 have an idea of where things are.

18 So are there any other parties

19 that are prepared to do that at the moment? And

20 please give your name again so that --.

21 MR. WHELPLEY: Dennis Whelpley on

22 behalf of the Development Authority. I won't

23 reiterate what our concerns were under the -- our

24 comments on the P.S.S. They speak for themselves,

25 Judge.





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1 Case 12-F-0410 - 5-21-2013

2 A.L.J. AGRESTA: Oh, I'm sorry.

3 I should have had you on the list. You still want

4 a stipulation regardless of whether you get

5 intervenor funding or not?

6 MR. WHELPLEY: We are very

7 concerned about the regional asset of that

8 waterline and its impact on our local customers.

9 We would hope that the applicant

10 would open up a dialogue with us so that we can

11 address and resolve the issues and the studies,

12 rather than do it through the litigation of an

13 application. And that's why the intervenor funds

14 would be helpful.

15 A.L.J. AGRESTA: Yes. I -- I

16 apologize. I should have had that on my list

17 regardless. Thank you. Anybody. You're -- you're

18 a person.

19 MS. SMITH: On behalf of the

20 Department of Agriculture and Markets we want to

21 enter into stipulation discussions with the

22 applicant regarding impacts to agriculture, as a

23 result of construction and restoration as well as

24 the placement of access roads.

25 And our main concern is that we





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1 Case 12-F-0410 - 5-21-2013

2 want to discuss these stipulation in relation to

3 areas within ag. districts as well as those areas

4 that are outside of agricultural districts.

5 A.L.J. AGRESTA: Thank you. Now

6 I hesitate to ask staff because I have a feeling

7 you have a huge list.

8 MR. BELSITO: That is true.

9 A.L.J. AGRESTA: Why -- why don't

10 I -- you guys are sophisticated enough that I think

11 I can leave it to you to contact the applicant

12 yourself with your list, so the Department of

13 Public Service staff will be in contact with you,

14 Mr. Harris, about their issues.

15 Is there anybody else who's

16 going -- who wants to participate in the

17 stipulation process with the applicant?

18 MR. MUNK: Yeah, Fred Munk with

19 the Department of Environmental Conservation and we

20 also want to participate in the stipulation

21 process. A good -- good number of the issues that

22 you mentioned are issues that we have concerns

23 about AND right now staff is looking at the

24 responses to the public -- OR the preliminary

25 scoping statement concerns and -- and we will be





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1 Case 12-F-0410 - 5-21-2013

2 doing that stipulation also.

3 A.L.J. AGRESTA: Okay. If -- if

4 you could -- if the Department could contact the

5 applicant relatively quickly with at least a list

6 of topic areas to get the discussion going that

7 would be appreciated.

8 MR. MUNK: Okay.


10 MR. MUNK: Thank you.

11 A.L.J. AGRESTA: And if you send

12 us a copy.

13 Anybody who's contacting the

14 applicant with a list of stipulation just send us a

15 copy of that initial contact. We don't need to see

16 every e-mail after that, just -- just so we have a

17 general idea as to what issues people are working

18 on in case there's a later dispute.

19 Okay. Is there anybody else?

20 Okay. Very good.

21 Does anybody have any process

22 questions at this point based on what we discussed

23 today? Does anybody have any process questions?

24 None. Okay.

25 I'd like to say that on behalf of





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1 Case 12-F-0410 - 5-21-2013

2 the judges, we're interested in the parties working

3 out some stipulations on alternatives and

4 alternative sizes for the project.

5 We'd like to see a scenario that

6 attempts to comply with the town's zoning law to

7 the degree possible. I'm not saying it has to

8 comply a hundred percent but it should try to

9 attempt to comply with it to see what that would

10 look like. And we're also interested that somebody

11 reached an agreement as to the location of visual

12 simulations. I'm assuming staff is going to be

13 pursuing that, but I just want to make sure that

14 happens.

15 Visual simulations take a long

16 time to prepare and it's not convenient in the

17 middle of the case to have to go out and do

18 additional ones if you can avoid it.

19 So I'd rather there be some

20 agreement among the parties as to where the

21 simulations will be done from. Okay. Okay.

22 That's pretty much it for tonight

23 unless anybody wants to be heard on some other

24 topic our business is completed. Does anybody want

25 to be heard? Yes, ma'am.





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1 Case 12-F-0410 - 5-21-2013

2 MS. SAULER: It's a process

3 question. I'm sorry I'm a little slow.

4 A.L.J. AGRESTA: That's okay.

5 MS. SAULER: Debbie Sauler, from

6 Cape Vincent. Is there a time finite for this

7 stipulation process?

8 A.L.J. AGRESTA: No. The hope is

9 to get it all over with as quickly as possible, but

10 there is no stated deadline.

11 Once a stipulation is reached

12 with the applicant, the statute requires that there

13 be a notice and people get an opportunity to

14 comment on it before it's finally executed. So

15 that also adds some process to it. But there is

16 no --.

17 MS. SAULER: And this is all

18 before the application is filed?

19 A.L.J. AGRESTA: That's correct.

20 The purpose of the stipulations

21 is to agree as to what should go into the

22 application. So it necessarily must precede the

23 application. But I expect all parties to work

24 together and try to make it as smooth and quick a

25 process as possible.





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1 Case 12-F-0410 - 5-21-2013

2 MS. SAULER: Okay. Thank you.

3 A.L.J. AGRESTA: Thank you. Yes,

4 sir.

5 MR. METZGER: Your Honor, Don

6 Metzger, local citizen, a concerned citizen,

7 resident year round of the area.

8 I respectfully request that you

9 seriously reconsider the denial of the Development

10 Authority of the North Country's intervenor

11 funding.

12 I -- I -- I realize there's a --

13 a legal point there and I hope that that legal

14 point will be easily dealt with because we're

15 talking about water. Water is the basis of life.

16 We can live without electricity. We cannot live

17 without water.

18 That Development Authority of the

19 North Country operates and manages the western

20 Jefferson County regional waterline, twenty-two

21 mile line from Cape Vincent to Glen Park. One

22 point four million gallons of fresh drinking water

23 pass through that line, and the foreign developers

24 have come in, the Spanish and the British, and have

25 in their original environmental impact statements





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1 Case 12-F-0410 - 5-21-2013

2 completely ignored the existence of that line and

3 said they were going to put their transmission line

4 there -- high voltage transmission line on the old

5 railroad bed.

6 The old railroad bed is -- is

7 gone. That infrastructure's been gone for decades.

8 What's there now is a regional waterline that --

9 that communities and hamlets from here to Watertown

10 use daily and have for the last ten years. And, I

11 would hate to see that line be put in jeopardy.

12 And I think the Development

13 Authority's comments that they sent to you, that

14 three-page letter from their attorney were right

15 on. And, I would truly respectfully request that

16 you cooperate with the Development Authority.

17 Thank you, your Honor.


19 you.

20 I will promise all of you that we

21 will get to the bottom of the issue, whether

22 there's intervenor funding or not. We obviously

23 aren't going to do anything that's going to hurt a

24 waterline. But if it's -- if it -- if it's truly a

25 legal bar from us giving the money we may have no





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1 Case 12-F-0410 - 5-21-2013

2 choice. So it's -- it's purely one of those legal

3 things. We are lawyers who live by the law and we

4 have to follow the law.

5 As I said earlier, we -- we

6 thought it would be a good idea for us to give them

7 funding if we could.

8 So it's going to come purely down

9 to a matter of what the law says we can do or can't

10 do. But even if we can't give them funding we will

11 work to make sure that in the proceeding that issue

12 gets heard and properly dealt with.

13 And I'm assuming the applicant

14 wants to cooperate on that issue as well. Mr.

15 Harris is shaking his head yes, so we'll see what

16 happens.

17 Okay. All right. I think that's

18 the end then. Thank you, everyone, for coming out

19 and I appreciate everyone's cooperation. Good

20 night.

21

22

23

24

25





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1 Case 12-F-0410 - 5-21-2013

2 STATE OF NEW YORK

I, Howard Hubbard, do hereby certify that the foregoing3 was reported by me, in the cause, at the time and place,as stated in the caption hereto, at Page 1 hereof; that

4 the foregoing typewritten transcription consisting ofpages 1 through 37, is a true record of all proceedings

5 had at the hearing.IN WITNESS WHEREOF, I have hereunto

6 subscribed my name, this the 28th day of May, 2013.

7 ___________________Howard Hubbard, Reporter

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TranscriptPre-Application Conference to Consider Intervenor Funding Requests and to Initiate the Stipulations Process