NOTICE OF PETITIONJanuary 12, 2012

Honorable Jaclyn A. Drilling, Secretary PSCNYS Department of Public ServiceThree Empire State PlazaAlbany, New York 12223-1350

Re: Case-E-0351

Please Take Notice that, upon the attached Petition, sent on January 12, 2012, and allcitations included therein, the undersigned request the NYS Public Service Commissiongrant a Re-hearing of the Order Granting Certificate of Public Convenience andNecessity, Providing for Lightened Rate Making Regulation and Approving Financing,Issued and Effective December 15, 201 1.

teven Moultrup2101 StandishRd.Attica, New York 1401 1(585)535-0131

To: Rosanne A. Lowder, Town ClerkOrangeville Town Hall3529 Route 20AWarsaw NY 14569

David M. DiMatteo, Esq.Law Office of David M. Dimatteo87 North Main St.Warsaw, NY 14569

Daniel A. Spitzer, Esq.Hodgson Russ, LLPThe Guaranty Building140 Pearl Street, Suite 100Buffalo, NY 14202

Honorable Jaclyn A. Brilling, Secretary PSC NYS Department of Public Service Three Empire State Plaza Albany, New York 12223-1350

Re: Case-E-03 51

NOTICE OF PETITION January 12,2012

Please Take Notice that, upon the attached Petition, sent on January 12,2012, and all citations included therein, the undersigned request the NYS Public Service Commission grant a Re-hearing of the Order Granting Certificate of Public Convenience and Necessity, Providing for Lightened Rate Making Regulation and Approving Financing, Issued and Effective December 15, 2011. "'--' ~

teven Moultrup

To: Rosanne A. Lowder, Town Clerk Orangeville Town Hall 3529 Route 20A Warsaw NY 14569

David M. DiMatteo, Esq. Law Office of David M. Dimatteo 87 North Main St. Warsaw, NY 14569

Daniel A. Spitzer, Esq. Hodgson Russ, LLP The Guaranty Building 140 Pearl Street, Suite 100 Buffalo, NY 14202

1

2101 Standish Rd. Attica, New York 14011 (585) 535-0131

January 12,2012

Re: Case ll-E-0351

Re: Request for Rehearing on the grounds that facts and new circumstances warrant a different determination for (Order number 10 and 11) of the NYS Public Service Commission Order issued and effective December 15, 2011 for Stony Creek, LLC.

Introduction:

Stony Creek Energy, LLC plans to construct 59 - GE 1.6mw-l00 industrial wind turbines within the Town of Orangeville. Throughout the SEQR process including SCOPE, Draft EIS and Final EIS agencies and the general public requested that Invenergy provide a GE Safety Manual showing recommended safety setbacks for the GE 1.6mw-l00 wind turbine. As noted in the Final EIS on page 447 Invenergy responded, "The vendor's operation manuals are considered confidential documents controlled by the vendor. Stony Creek is not able to provide this document for public review." It is this petitioner's belief that the State of New York Public Service Commission requested the above document and received the document for their review. The PSC Order further states that, "Despite DPS Staff's request to do so, Stony Creek has not yet presented the project setback inconsistencies to the turbine manufacturer for its review and recommendations, pursuant to the manufacturer's turbine setback policy."

2

January 12,2012

Petition: Request for rehearing

1. On December 29, 2009 the NYS Department of Public Service sent a letter to the Town of Orangeville (Lead Agency for Stony Creek wind project) regarding the Draft Scope of the DEIS. The DPS staff recommended (Sec. 1.0 Project Description) the inclusion (a) of a clearly marked drawing showing the applicable setbacks from roads, property lines, residences, wind turbines, gas facilities and electric transmission line.

2. The Draft EIS thus included Table 2 (WTG Complying with the Minimum Setback of700 feet from Non-Participating Parcels by 100 feet or less.) The DEIS was applying a setback distance (700') prescribed by the Orangeville zoning law. The DEIS was using the GE formula for safe (800') setbacks for the GE 1.5mw turbine. Table 2 indicated that 27 non-participating properties have setbacks between 708 ' and 797'. (pSC Record- Comments Sr.No.2 Moultrup - documentation)

3. Draft EIS comment from Stantec regarding the GE 1.5 mw turbine states: 6.28.14 GE Snow and Ice Setbacks : "Please address the 700 foot setback from public roads and property lines in the context of the suggestion from GE (which references recommendations from certifying agency Germanischer Lloyd) that setbacks be 1.5X (H+D), where H is the tower height and D is the rotor diameter, in climates where snow and ice shedding may occur. In the case of the GE 1.5 or 1.6 XLE models, this guideline would indicate an 800 foot setback."

4. PSC Order states, "Stony Creek provided a confidential document for the 1.6-100 turbine model from GE, which indicates that an 885-foot setback is generally appropriate from roadways, residences and places of public assembly. The policy recommends review by GE for any locations not meeting those requirements." (pg 29 PSC Order)

5. PSC Order states, "Given our previously - expressed concern about set-back requirements, DPS Staff requested that the turbine manufacturer' s setback recommendations documentation be provided." The PSC here cites (36) Case 07-E-0213 , Sheldon Energy LLC, Order Granting Certificate of Public Convenience and Necessity and Providing for Lightened Regulation (issued January 17, 2008) (Sheldon Energy Order) (pg 29 PSC Stony Creek Order). It is this petitioner's belief that the Sheldon project complied with the manufacturer's setback recommendation of an 800 foot setback from property lines for the GE 1.5 xle model.

3

6. PSC Order states on pg 30, "Town Special Use Permit and Site Plan Conditions require that facility construction be done, in accordance with all applicable local, state and federal regulations, industry standards, and (wind energy collection device) manufacturer recommendations." PSC Order citation (39) states, "Town of Orangeville Town Special Use Permit and Site Plan Conditions, August 11,2011; Clause 16.2.16; p. 28."

7. PSC Order states on page 28: "Type Certification helps to ensure that safety and reliability issues are addressed in turbine design, manufacturing process and operational maintenance programs." PSC citation (35); As Orangeville noted in section 18.5 of it's Findings Statement (in a discussion of blade throw and tower collapse at p. 54): " Chances of (wind turbine) failures are mitigated by use of (turbines) that are certified by an independent agency as meeting appropriate design requirement." (PSC Sr. No. 61 Lead Agency Findings Statement)

8. The actual setbacks from non-participating property lines can be determined only in a general sense when reviewing a Final EIS Project Plot Map. A Setback Compliance Table listing exact distances to property lines for the GE 1.6mw - 100 was not included in the Final EIS. (PSC Sf. No. 65 A.2.b SC FEIS Map)

9. The Project Layout Comparison Map shows DEIS Turbine location vs. FEIS Turbine location. The map shows that many turbine locations were changed. Some turbine locations were changed again (T5,13,40,52,53 & 56 per TB Minutes 6-29-11) for wetland buffer issues. (PSC Sr. No.73 A.2.j SC DEIS vs FEIS layout)

10. Land use in Orangeville is divided primarily between agricultural use, residential use and recreational use. In fact Orangeville has the greatest concentration of seasonal and cluster development of any Town in Wyoming County. The seasonal and cluster development land is primarily used for outdoor recreation activities including, x-country skiing, snowmobiles, all terrain vehicles, hunting, bird watching, hiking, maple sugar production, horse­back riding, etc. On this land you will often fmd permitted and non-permitted cabins, picnic shelters, and campers.

11. It is unclear how many non-participating (parcels) properties fall within the GE recommended 885 foot setback within the project area.

4

12. The full extent of the use of the non-participating parcels that fall within the 885 foot setback is unclear.

13. From personal knowledge and review of the FEIS Plot Map I have identified the following parcels that seem to fall partially within the recommended 885' setback. A wide range of facilities and/or uses occur on these parcels throughout the year. I believe that similar uses exist throughout the project area but the full extent is unknown.

Parcels: 59.2-25 - used for a variety of outdoor recreation activities 59.2-24.21 - Maple Syrup Production - owner and family have to be on site when the maple trees are running. 72.-1-2.12 - Raising Horses and Horseback Riding 83. -1-29 - Public Use Area for all Deer Pond Acres property owners 82. - 2-1.112 - Horseback Riding and Target Shooting 82.2-11.2 - Public Campground 82.-2-11.111 - Outdoor recreation Area 82.2-16.1 - Recreational LandILake - hiking trails, x-country skiing, etc.

14. The SC FEIS Plot Map has multiple errors. Within the White vs Town of Orangeville Judgment and Decision Granted January 4,2012, it states the following on page 6: "In attempting to map the location of petitioner's cabin or otherwise depict his property situation, respondents plotted his "dwelling" denominated "H(ouse)-2102", in an incorrect location, one well outside a 1320-foot radius from the proposed site ofT-28. In fact, in the location so plotted by respondents, there exists no dwelling or other structures. (Moreover, petitioner shows that respondents additionally mistakenly plotted a supposed second structure, designated as "H( ouse)-2101" on petitioner's property in another location where there exist no man-made structure, but rather only a beaver dam. Where petitioner's cabin is in fact located, respondents initially mapped no construction of any type."

(White vs. Town of Orangeville, Decision & Judgment January 4, 2012, pgs 4-7)

5

January 12, 2012

Petition: Request for Rehearing

This petition for rehearing, supported by the above infonnation and all records before the NYS Public Service Commission for Case ll-E-0351, requests the following:

1) Commission Order number 11 states that the company shall submit to DPS Staff [mal site plans and construction drawings for the project components, turbine sites, access roads, and electric lines associated with the project before the start of construction of those affected components. I request the Public Service Commission ask the Company to file with the Secretary a Table that shows (all) WTG Complying with the Minimum Setback of700 feet from Non-Participating Parcels by 185 feet or less and include this request in Order 11. A Table depicting non-participating parcels less than 885 ' from a turbine and a Survey to identify use on these parcels should be included. I further request that the Table and Survey be made available for public review and comment.

2) Commission Order number 10 states that before installation of turbines T-8, -9, -11 , -12, -13, -25, -27 and -28 may commence, the Company shall file with the Secretary a demonstration of review and approval by GE and proof of liability insurance commensurate with industry standards. If the manufacturer disagrees with the company regarding the location of any of these turbines, the Company may seek Commission approval of the installation of the affected turbine( s) at a location(s) proposed by the company. I request that the Public Service Commission add all turbines identified to be non-compliant with GE recommended setbacks to the list of non-compliant turbines identified by PSC and include in Order 10.

6

Steven C. Moultrup 2101 Standish Rd. Attica, NY 14011 (585)535-0131