SUPREME COURT OF THE STATE OF NEW YORK

JEFFERSON COUNTY

WIND POWER ETHICS GROUP,

Petitioner-Plaintiff,
- VS -

PLANNING BOARD OF THE TOWN OF CAPE VINCENT, and RICHARD

EDSALL, TOM RIENBECK, GEORGE MINGLE, ANDREW BINSLEY and
KAREN BOURCY, in their capacities as planning board members,

Respondents-Defendants,

- and -

ST. LAWRENCE WINDPOWER, LLC,

Respondent-Defendant.

Index No. 10-2882

MEMORANDUM OF LAW

NIXON PEABODY LLP

Ruth E. Leistensnider, Esq., of counsel
Attorneys for Respondent-Defendant
St Lawrence Windpower, LLC
677 Broadway
10th Floor
Albany, New York 12207
Tel: (518) 427-2650

December 9, 2010

13272540.1
 TABLE OF CONTENTS ,

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

STATEMENT OF FACTS 1

ARGUMENT 4

POINT I

WPEG HAS FAILED TO ESTABLISH STANDING 4

POINT II

THE PLANNING BOARD FULLY COMPLIED WITH SEQR 9

POINT III

THERE ARE NO IMPERMISSIBLE CONFLICTS OF INTEREST 22

CONCLUSION 25
 TABLE OF AUTHORITIES
Page(s)
CASES

Aeneas McDonald Police Benevolent Assn v. City of Geneva,

92 N.Y.2d 326 (1998) 6

Akpan v. Koch,
75 N.Y.2d 561 (1990) 10, 11

Aldrich v. Pattison,
107 A.D.2d 258 11

Dental Soc 'y v. Carey,

61 N.Y.2d 330 (1984) 6

Douglaston Civic Ass 'n, Inc. v. Galvin,

36 N.Y.2d 1, 7 (1974) 5, 6

Matter of Cellular Tel. Co. v Rosenberg,

82 N.Y.2d 364 (1993) 18

Matter of Jackson v. New York State Urban Development Corp.,

67 N.Y. 2d 400 (1986) 10, 11, 19

Matter of King v. County of Monroe,

225 A.D.2d 1003 (4th Dept. 1998) 20

Matter of Nolsen Corp., et al v. Ontario County Bd. of Supervisors,

295 A.D.2d 924 (4th Dept. 2002) 8

Matter of Otsego 2000 v. Planning Bd of the Town of Otsego, et al,

171 A.D.2d 258 (3d Dept. 1991) 8

Matter of Piela, et al. v. Van Voris, et al.,

229 A.D.2d 94 (3d Dept. 1997) 8

Matter of Save the Pine Bush, Inc., et al. v. Common Council of the City of Albany, et al.
13 NY3d 297 (2009) 6, 7, 8, 9

Matter of Wind Power Ethics Group, et ano. v. Town of Cape Vincent Zoning Bd. Of
Appeals, et al. (Sup. Ct., Jefferson Co. 2007, Index No. 07-0789) 8, 17

New York State Ass 'n of Nurse Anesthetists v. Novello,

2 N.Y.3d 207 (2004) 5

13265263.2
Society of Plastics Industry Inc. v. County of Suffolk,
77 N.Y.2d 761 (1991) 4, 6

Sun Co., Inc. (R & M), et al., v. City of Syracuse Industrial Development Agency,
209 A.D.2d 34 (4th Dept. 1995) 10, 16, 17

STATUTES

CPLR § 1025 4
ECL Article 8 1
ECL § 8-0109(1) 10
ECL § 8-0109[8] 11
General Associations Law § 12 4
GML Article 18 22, 23, 24
GML § 800(3) 23
GML § 801 23
GML § 803 23
OTHER AUTHORITIES

6 NYCRR § 616.7(c)(2) 14
6 NYCRR § 617.2(s) 19
6 NYCRR § 617.11(a) 21
6 NYCRR § 617.11(d)(5) 10
DEC Program Policy DEP-00-01 12
 PRELIMINARY STATEMENT

This Memorandum of Law is submitted on behalf of Respondent-

Defendant St. Lawrence Windpower, LLC ("SLW") in opposition to the Petition and

Complaint of Petitioner-Plaintiff Wind Power Ethics Group ("WPEG") in the within

matter. In its Petition and Complaint, WPEG seeks to nullify the Findings Statement of

Respondent-Defendant Planning Board of the Town of Cape Vincent ("Planning Board")

adopted pursuant to the requirements of the State Environmental Quality Review Act

("SEQR"), Environmental Conservation Law ("ECL") Article 8 for a wind farm being

proposed by SLW in the Towns of Cape Vincent and Lyme. WPEG claims that the

Planning Board failed to comply with the requirements of SEQR, and that unnamed

members of the Planning Board had impermissible conflicts of interest, and that

therefore, the Findings Statement should be nullified. As will be more fully

demonstrated below, WPEG has failed to establish its standing to maintain this action and

proceeding, the Planning Board fully complied with the requirements of SEQR, and there

were no impermissible conflicts of interest. As a result, it is respectfully submitted that

the Petition and Complaint should be dismissed in its entirety.

STATEMENT OF FACTS

In or around 2003, SLW, an indirect subsidiary of Acciona Energy North

America Corporation ("Acciona"), began development of an approximately 76.5

megawatt ("MW") wind powered generation facility to be located in the Towns of Cape

Vincent and Lyme (the "Project"). Affidavit of Timothy Conboy ("Conboy Affidavit"),

rli 1 and 3. As originally proposed, the Project consisted of ninety-six (96) wind
13265263.2
 -2-

turbines, as well as an electric substation and appurtenant electrical gathering cables. The

Project also included an approximately nine mile transmission line. Conboy Affidavit,

8. This development effort included the installation of a meteorological tower to

measure wind speed in 2005, as well undertaking the various studies necessary to support

any required approvals. Conboy Affidavit, ¶ 4.

One of the approvals required for the Project is site plan review by the

Planning Board. SLW submitted a preliminary application for site plan approval to the

Planning Board in November, 2006. While the Planning Board noted that the

preliminary application was not complete, it determined, at its November 8, 2006

meeting, that it would seek lead agency status under SEQR. Because no involved agency

objected to the Planning Board acting as lead agency during the thirty-day coordination

period, the Planning Board, at its December 13, 2006 meeting, determined to serve as

lead agency for purposes of review of the Project. SLW submitted a Draft Environmental

Impact Statement ("DEIS") for the Project to the Planning Board thereafter, which the

Planning Board accepted as complete at its January 24, 2007 meeting. Conboy Affidavit,

5-7 .

Following the close of the public comment period on the DEIS, SLW

reduced the size of its project from 96 turbines to fifty-three (53) turbines. As a result,

SLW, at the request of the Planning Board, submitted a Supplemental DEIS ("SDEIS") to

address the changed size of the Project, other revisions such as revised turbine locations,

as well as to take into account comments from the Planning Board, involved agencies and

the public on the DEIS. In addition to evaluating the impacts from the changed size of
132652612
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the Project, the SDEIS included an updated noise analysis, prepared by Hessler

Associates, Inc. ("Hessler"). Hessler's noise analysis included actual background noise

levels around the Project area, monitored during the summer and winter months. This

baseline information allowed for an actual comparison between existing noise levels to

those noise levels which would result from the Project. The Planning Board accepted the

SDEIS as complete at its meeting of March 25, 2009, and the Planning Board accepted

comments on the SDEIS in May and June of 2009. Conboy Affidavit, 1 9-11.
Following the close of the public comment period, SLW spent the next

several months working with the Planning Board and its consultants to address issues

raised during the public comment period and other matters. Once these issues were

addressed and resolved to the Planning Board's satisfaction a Final Environmental

Impact Statement ("FEIS"), including responses to comments, was accepted by the

Planning Board on August 18, 2010. As discussed in the FEIS, the number of turbines to

be utilized by the Project was reduced to fifty-one (51) turbines. Thereafter, at its

meeting of September 15, 2010, the Planning Board adopted a comprehensive Findings

Statement for the Project, consisting of over 100 pages of analysis of the impacts of the

Project. Conboy Affidavit, INF 12-14 and Exhibit A.

The evaluation of the Project under SEQR spanned a period of time of

almost three years, thousands of pages of studies and analyses, and multiple opportunities

for public input. Notwithstanding this comprehensive analysis, WPEG commenced the

3265263.2
 -4-

instant combined Article 78 proceeding/Declaratory Judgment action' seeking to have

this Court substitute its judgment for the Planning Board's in its evaluation of the

environmental impacts of the Project. WPEG also claims that alleged conflicts of

interests of unnamed Planning Board members warrant an annulment of the Planning

Board's September 15, 2010 resolution adopting a Findings Statement for the Project. As

will be demonstrated below, WPEG's claims are without merit, and the Petition and

Complaint should be dismissed in its entirety.

ARGUMENT

POINT I

WPEG HAS FAILED TO

ESTABLISH STANDING

A threshold issue in any Article 78 proceeding is to determine whether a

petitioner has standing to seek relief. It is undisputed that the party seeking review has

the burden of establishing standing. See, e.g. Society of Plastics Industry Inc. v. County

of Suffolk, 77 N.Y.2d 761 (1991). For the reasons set forth below, it is respectfully

submitted that Petitioner has failed to demonstrate it has standing to maintain these

proceedings. 2

1
As the proof of service submitted to the Court clearly indicates that no summons was served with the
Notice of Petition and Petition and Complaint, it is respectfully submitted that this Court lacks jurisdiction over the
Declaratory Judgment portion of the within matter.
2
The Petition and Complaint is commenced solely by WPEG, which Petitioner alleges as an unincorporated
association. Under CPLR § 1025 and General Associations Law § 12, an unincorporated association may only
commence an action by its President or Treasurer, not solely in its own name. As a result, it is respectfully
submitted that WPEG lacks capacity to commence this action.

13265263.2
 -5-

Where, such as here, a proceeding is commenced solely by an organization,

a plaintiff must show "'injury in fact,' meaning that the plaintiff group will actually be

harmed by the challenged administrative action ... the injury must be more than

conjectural." New York State Ass 'n of Nurse Anesthetists v. Novella, 2 N.Y.3d 207, 211

(2004). And, like individual petitioners, purported organizational petitioners must

similarly assert an injury that falls within the "zone of interests sought to be promoted or

protected by the statutory provision under which the agency has acted." Id. In addition,

however, an organization must fulfill further requirements; it "must show that at least one

of its members would have standing to sue, that it is representative of the organizational

purposes it asserts and that the case would not require the participation of individual

members." Id.

In Douglaston Civic Ass 'n, Inc. v. Galvin, the Court of Appeals held that, for an

organization to have standing to assert the rights of its members where such members

may be affected by a determination, "the court should be satisfied that the organization

before it is an appropriate one to act as the representative of the group whose rights it is

asserting." 36 N.Y.2d 1, 7 (1974). In making that determination, the courts assess

whether:

13265263.2
 -6-

1. the organization has the capacity to assume an adversarial position;

2. the size and composition of the organization is fairly representative

of the community or interests which it seeks to protect;

3. the adverse effect of the decision sought to be reviewed on the group

represented by the organization is within the zone of interests sought
to be protected; and

4. full participating membership in the organization is open to all

residents and property owners in the relevant neighborhood.

36 N.Y.2d at 14-15. See also Society of Plastics Indus., supra, at 775 (association or

organizational standing has been held to require: 1) a showing that one or more of the

organization's members have standing to sue; 2) a demonstration that the interests the

organization is asserting are germane to its purposes so as to satisfy the court that it is an

appropriate representative of those interests; and 3) a showing that neither the asserted

claim nor the appropriate relief requires the participation of the individual members);

Aeneas McDonald Police Benevolent Ass 'n v. City of Geneva, 92 N.Y.2d 326, 331

(1998); Dental Soc'y v. Carey, 61 N.Y.2d 330, 333-335 (1984) (same).

The Court of Appeals recently reiterated these standing principles in the

context of alleged violations of SEQR in Matter of Save the Pine Bush, Inc., et al. v.

Common Council of the City of Albany, et al. 13 NY3d 297 (2009). Therein, the court

stated:

In Society of Plastics, we held that "[i]n land use

matters ... the plaintiff, for standing purposes, must show that
it would suffer direct harm, injury that is in some way
different from that of the public at large" (77 NY2d at 774).
More specifically, we said that in cases involving
environmental harm, the standing of an organization could be
"established by proof that agency action will directly harm
13265263.2
 -7-

association members in their use and enjoyment of the

affected natural resources" (id. at 775).

13 NY3d at 304-05. Notably, however, the Court of Appeals also stated that standing

requirements could not be demonstrated by "perfunctory allegations of harm. Plaintiffs

must not only allege, but if the issue is disputed must prove, that their injury is real and

different from the injury most members of the public face." Id. at 306. (emphasis

supplied). The requirement to establish standing is more than a pleading requirement;

rather, each element must be pleaded and proved. Id. Under these well established

principles, it is clear that WPEG has failed to establish its standing to maintain these

proceedings.

The sole allegations pertaining to WPEG's standing to maintain this

proceeding are contained in paragraphs 8, 9, 25 and 26 of the Petition and Complaint.

These paragraphs consist of allegations that WPEG is an association of landowners in

Cape Vincent and Lyme, "dedicated to protecting the rural amenities and environment of

the area" (paragraph 8), that unnamed members of WPEG own land "in relatively close

proximity" to the SLW Project, and would therefore be harmed differently than the

general public (paragraph 9), that the value of Petitioner's unnamed members' land lies in

the environmental, recreational and aesthetic amenities (paragraph 25) which Petitioners

claim would be harmed by the Planning Board's decision at issue (paragraph 26).

However, notably absent from the Petition and Complaint is any allegation as to whether

membership is open to all residents, any identification of its members, where those

members own property, the precise proximity of the property to the Project which is the

13263263.2
 -8-

subject of this proceeding, or any demonstration as to how individual members, given the

size of the Project, will suffer any harm any different from any other resident of the Town

of Cape Vincent. The lack of any supporting affidavits is fatal to Petitioner's standing. 3

This case is no different than Matter of Nolsen Corp., et al v. Ontario

County Bd. of Supervisors, 295 A.D.2d 924 (4 th Dept. 2002) and Matter of Piela, et al. v.

Van Voris, et al., 229 A.D.2d 94, 96 (3d Dept. 1997), wherein both the Third and Fourth

Departments found that although the conclusory allegations contained the Petition were

sufficient to state Petitioners' claims of standing, this was insufficient to demonstrate that

Petitioners did, in fact, establish their standing. In the absence of any affidavits

articulating WPEG's standing as an organization, and a demonstration as to how its

individual members will be harmed differently than the public, it is respectfully

submitted that Petitioner has failed to meet its burden of proof on this issue. This is

consistent with the Court of Appeals requirement, articulated in Save the Pine Bush,

supra that where standing is disputed, Petitioner must prove that the injury is real and

different from the public at large. Save the Pine Bush, supra at 306. See also Matter of

Otsego 2000 v. Planning Bd. of the Town of Otsego, et al, 171 A.D.2d 258, 260 (3d Dept.

3
The facts underlying WPEG's standing in this case stand in stark contrast to those this Court addressed in
its June 5, 2007 decision in Matter of Wind Power Ethics Group, et ano. v. Town of Cape Vincent Zoning Bd. Of
Appeals, et al. (Sup. Ct., Jefferson Co. 2007, Index No. 07-0789), included in Exhibit A hereto. In that case, a
member of WPEG, Sarah Boss, was a named Petitioner, owned property adjacent to one of the proposed sites for a
turbine, and claimed that customers of her bed and breakfast enjoy the view and solitude of the entire parcel. Based
upon those facts, this Court held Ms. Boss, and accordingly, WPEG had standing. Since that time, the number and
location of turbines for the Project have changed (see generally Conboy Affidavit, ¶ 9, discussing the reduction in
the number and location of turbines for the Project), and it is entirely possible that (a) Ms. Boss is no longer a
member of WPEG and/or (b) no other member of WPEG owns property adjacent to a turbine site. Therefore, it is
respectfully submitted that this Court's prior decision does not control the outcome in this case.

13265263.2
 -9-

1991) (organizational Petitioner cannot establish standing in the absence of affidavits

from its individual members); Matter of Save the Pine Bush, Inc.. et al v. Planning Bd. of

the Town of Clifton Park, et al., 50 A.D.2d 1296, 1297-98 (3d Dept.2008)(same).

In sum, the Petition and Complaint lacks any supporting affidavits from

WPEG or its members setting forth the elements necessary to establish standing. In the

absence of such proof, Petitioner has failed to meet its burden of proof with respect to

standing, and the Petition must be dismissed.

POINT II

THE PLANNING BOARD FULLY

COMPLIED WITH SEQR

Petitioner claims that the Planning Board violated both the substantive and

procedural requirements of SEQR. Substantively, Petitioner claims that the Planning

Board improperly evaluated noise, cumulative impacts and various wildlife, aesthetic and

economic issues. Procedurally, Petitioner claims that the Planning Board failed to

address late-submitted comments and failed to coordinate review with all involved

agencies. As will be more fully demonstrated below, the Planning Board exhaustively

evaluated all of the issues raised by Petitioner, and fully complied with SEQR's

procedural mandates. As a result, it is respectfully submitted that the Petitioner's claims

with respect to SEQR should be dismissed.

A. The Planning Board Fully Complied with the Substantive Requirements

of SEQR

As noted, above Petitioner's claims with respect to the Planning Board's

substantive review of the Project under SEQR are that the Planning Board improperly
13263263.2
 - 10 -

considered noise, cumulative impacts and various wildlife, aesthetic and economic issues.

As will be demonstrated below, each of these claimed inadequacies are fully addressed in

the DEIS, SDEIS, FEIS and/or the Findings Statement for the Project. As a result, the

Planning Board fully complied with the requirements of SEQR, and Petitioner's claims in

this regard must be dismissed.

In reviewing an agency's determination under SEQR, the sole issue before

the court is whether the agency's determination was made in accordance with lawful

procedure, and whether substantively, the agency identified the relevant areas of

environmental concern, took a "hard look' at them, and made a "reasoned elaboration" of

the basis of its decision. Akpan v. Koch, 75 N.Y.2d 561, 570 (1990) (citing Matter of

Jackson v. New York State Urban Development Corp., 67 N.Y. 2d 400, 417 (1986)).

SEQR requires that an agency, in reviewing a project, identify significant environmental

impacts, and, consistent with social, economic and other essential considerations,

mitigate or avoid those impacts "to the maximum extent practicable." ECL § 8-0109(1),

6 NYCRR § 617.11(d)(5). 'Not every conceivable environmental impact, mitigating

measure or alternative must be identified and addressed before a FEIS will satisfy the

substantive requirements of SEQRA' . . . The degree of detail with which each factor

must be discussed obviously will vary with the circumstances and nature of the proposal"

Sun Co., Inc. (R & 10, et al., v. City of Syracuse Industrial Development Agency, 209

A.D.2d 34, 49 (4th Dept. 1995) (quoting Matter of Jackson v New York State Urban Dev.

Corp., supra at 417). Furthermore, "[d]issatisfaction with an agency's proposed

mitigation measures is not redressable by the courts so long as those measures have a
13265263.2
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rational basis in the record." Matter of Jackson v. New York State Urban Dev. Corp., 67

N.Y.2d 400, 421 (1986). It is not the court's role to substitute its judgment for that of the

agency. Akpan, supra at 571. Rather, an "agency's substantive obligations under SEQRA

must be viewed in light of a rule of reason. 'Not every conceivable environmental

impact, mitigating measure or alternative must be identified and addressed before a FEIS

will satisfy the substantive requirements of SEQRA.'" Matter of Jackson, supra at 417

(quoting Aldrich v. Pattison, 107 A.D.2d 258, 266). The Planning Board should be

afforded "considerable latitude in evaluating environmental effects and choosing among

alternatives." Id. (citing ECL § 8-0109[8]). It is respectfully submitted that the lengthy

and comprehensive review undertaken with respect to the Project demonstrates that the

Planning Board's SEQR review fully complied with these requirements.

i. The Planning Board Properly Evaluated Noise Impacts

The crux of Petitioner's claim with respect to noise impacts from the

Project is that SLW's acoustical expert's prediction of background noise levels in the

vicinity of the Project was flawed in that it overstated the predicted background noise

levels, that the Planning Board improperly relied on SLW's predicted background noise

levels, and as a result, the Planning Board understated the potential noise impacts from

the Project. As will be more fully demonstrated below, Petitioner's claim in this regard is

wholly without merit.

Both the DEIS and the SDEIS for the Project included a noise impact study

from SLW's consultants — the DEIS included a noise impact study by Tetra Tech EC, and

the SDEIS included a noise impact study by Hessler Associates, Inc. ("Hessler").
13265263.2
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Conboy Affidavit, ¶ 10. The Hessler noise impact study submitted as part of the SDEIS

contained an analysis of the predict noise impacts, based upon actual background noise

measurements obtained in the vicinity of the Project over the course of many months.

The Hessler analysis of noise impacts from the Project utilized a regression analysis of

those background noise measurements to predict what the actual background noise levels

would be in the vicinity of the Project, and then modeled the noise levels from the Project

to determine what the potential future noise impacts would be at off-site receptors. Using

this analysis, the Hessler report concluded that in general, potential future noise impacts

from the Project would be no greater than 6 dBA. Conboy Affidavit, ¶ 17.

The Planning Board engaged its own consultants, The Bernier Carr Group

("BCG") and Cavanaugh Tocci Associates, Inc. ("CTA") to evaluate SLW's noise impact

studies. CTA concluded that Hessler's use of a regression analysis to predict actual

background noise levels in the vicinity of the Project may have overstated background

noise levels by as much as 5 dBA, and that as a result, there is a potential that during the

winter months, noise from the Project could exceed background noise levels by as much

as 11 dBA. Conboy Affidavit, ¶ 18.

Contrary to Petitioner's contention, however, the Planning Board did not

reject the recommendations of its own consultants, nor somehow "violate" DEC's

Program Policy for analyzing noise impacts from the Project. DEC's Program Policy for

analyzing noise impacts, entitled "Assessing and Mitigating Noise Impacts", attached

hereto as Exhibit B, states that increases in predicted noise levels from a project more

than 6 dBA "may require a closer evaluation of impact potential[.]" DEC Program
132652632
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Policy DEP-00-01, p. 13. That is precisely what the Planning Board did in this case — it

took a much closer evaluation of the impact potential from the Project. The Planning

Board's Findings Statement acknowledged that CTA's finding was that Hessler may have

understated ambient noise levels in the vicinity of the Project, and that therefore, there

could be a potential increase in noise impact from the Project of 11 dBA at a limited

number of off-site residences during the winter months at certain times. Findings

Statement, p. 92. However, the Planning Board went on to state that whether Hessler's

analysis was used, or CTA's analysis was used, in either event, noise from the Project

was not predicted to exceed 45 dBA, a level deemed unacceptable for a rural, nighttime

environment. Findings Statement, p. 92. This is consistent with DEC's Program Policy,

which states that ambient noise levels below 55 dBA are "sufficient to protect public

health and welfare", Program Policy, p. 14, and that rural areas "would be at the lower

end of the scale", or about 45 dBA. Program Policy, p. 20.

The Planning Board took into account the mitigation measures proposed by

the Project, including changes in the design of the Project to reduce the number of

turbines from 96 to 51, incorporation of setbacks to reduce off-site noise impacts to less

than 45 dBA, the selection of a relatively quiet wind turbine model, and SLW's

commitment to a noise complaint resolution process whereby, should actual noise levels

exceed Hessler's predicted threshold on a sustained basis, it may merit resolution by the

Planning Board. After consideration of these mitigation measures, the Planning Board

ultimately determined that the noise impacts had been mitigated or avoided to the

maximum extent practicable (Findings Statement, p. 95), and that the impacts were
13265263.2
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outweighed by the social and economic impacts of the Project. Findings Statement, pp.

113-114.

In sum, based upon the above, it is respectfully submitted that the Planning

Board took a hard look at the potential noise impacts of the Project, and made a reasoned

elaboration of the basis of its decision. Having done so, it is respectfully submitted that

the Planning Board fully complied with SEQR in this regard, and Petitioner's claims to

the contrary must be dismissed.

ii. The Planning Board Adequately Considered Cumulative

Impacts

Petitioner next claims that the Planning Board failed to address the

cumulative impacts of the Project with multiple other surrounding proposed wind farms.

Petitioner's claim in this regard once again is belied by the record.

Initially, it should be noted that SEQR does not require that the Planning

Board evaluate the cumulative impacts of the proposed Project together with other,

unrelated wind projects in the area over which the Planning Board does not have

jurisdiction. Rather, SEQR only requires that the Lead Agency, in determining whether

an action may have a significant adverse environmental impacts, take into account

cumulative impacts, "including other simultaneous or subsequent actions which are [i]

included in any long-term plan of which the action under consideration is a part; [ii]

likely to be undertaken as a result thereof; or [iii] dependent thereon" 6 NYCRR

§ 616.7(c)(2). It is undisputed that none of the other wind projects proposed in the

surrounding area are being proposed by Acciona, nor that the Planning Board has

13263263.2
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jurisdiction over any of the other wind projects located outside the Town of Cape

Vincent. As a result, it is respectfully submitted that a cumulative impact analysis of all

of the proposed wind projects in the surrounding area, other than perhaps arguably the BP

Wind Energy wind project, would not be required.

In any event, the SDEIS contained a thorough analysis, in Section 4.0, of

each of the multiple proposed wind farms, including the potential cumulative wetland

impacts, cumulative wildlife and habitat estimates, including potential cumulative bird

and bat fatalities, and other potential cumulative impacts, including visual, air quality,

noise and socioeconomic effects of the multiple projects. Ultimately, the SDEIS

concluded that none of these potential cumulative impacts were significant. For instance,

with respect to wetlands impacts, the SDEIS concluded that wetland impacts would be

offset through required mitigation for each project, that cumulative bird and bat kill

estimates were not statistically significant to the continued existence of any threatened or

endangered species, and that even if construction period were to overlap, no major traffic

conflicts were expected to result. The SDEIS found that there would be cumulative

visual impacts, but that because it was the foreground view of turbines which may result

in a change from a particular vantage point, the addition of distant views of additional

turbines would not result in a significant cumulative impact. Finally, the SDEIS found

that there may be cumulative noise impacts from the BP Wind Energy project and

potentially other wind projects, such cumulative noise impact was not deemed

significant, as the cumulative noise impact was less than 3 dBA, a noise increase which is

considered to be imperceptible.
13265263.2
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The Planning Board's Findings Statement discusses the cumulative impact

analysis contained in the SDEIS (pp. 109-110), and agreed with and adopted the findings

with respect to those analyses contained in the EIS documents. Id. As a result, it is

respectfully submitted that the Planning Board properly evaluated the potential

cumulative impacts of the Project with other wind projects in the surrounding area, and

Petitioner's claim in this regard should be dismissed.

iii. Petitioner's Remaining Substantive Challenges are Without

Merit

Petitioner's remaining substantive challenges relate to the Planning Board's

evaluation of impacts to wildlife, scenic resources, property values, and community

character. As will be fully demonstrated below, the Planning Board fully evaluated the

impacts in each of these areas.

First, with respect to wildlife impacts, the DEIS, SDEIS and FEIS

contained multiple studies addressing the potential impacts to wildlife. The Planning

Board's Findings Statement spans almost thirty pages (pages 26 through 54) discussing

the potential impacts and the mitigation measures proposed by SLW. Petitioner points to

no specific defect in this analysis, and therefore, the Planning Board's Findings Statement

with respect to impacts on wildlife must be upheld.

Evaluation of the potential impacts of a project on property values, as an

economic impact, is beyond the scope of SEQR. See, e.g., Society of Plastics Indus.,

supra, (finding that economic impacts unrelated to environmental concerns beyond the

scope of SEQR); Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 50 (4th

13265263.2
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Dept. 1995 (finding that the Lead Agency properly declined to address the economic

impacts of the proposed project).

Nonetheless, the DEIS, SDEIS and FEIS evaluated the potential impacts to

property values as well as the economic benefits of the Project. The Planning Board, in

its Findings Statement, considered the potential impacts on property values. Therein the

Planning Board acknowledged the concerns of the residents with regards to this issue.

However, the Findings Statement also noted that the available studies performed with

respect to other wind projects, as summarized in the EIS documents, found no basis to

conclude that wind projects would have an adverse impact on property values. The

Planning Board found that "it is reasonable to conclude that the proposed Project will not

adversely affect local property values," Findings Statement, p. 99, and that the positive

social and economic benefits of the Project outweighed any potential adverse impact of

the Project. Id. Thus, once again, Petitioner's claim in this regard must be rejected.

Finally, Petitioner claims that the Planning Board failed to properly address

the impacts of the Project on scenic resources and community character. Once again,

these claims are belied by the record.

Initially, it should be noted that the Project is allowed, subject to site plan

review by the Planning Board, in the Town's Agricultural-Residential Zoning District as

a utility within the meaning of the Town's Zoning Code, as confirmed by this Court and

the Appellate Division, Fourth Department. See Matter of Wind Power Ethics Group, et

ano. v. Zoning Bd. of Appeals of the Town of Cape Vincent, et al., 60 A.D.3d 1282 (461

Dept.209)Asauily,rojectvwsnildoreuc tnyshaprojeci
13265263.2
 - 18 -

not denied based solely on community opposition. Matter of Cellular Tel. Co. v

Rosenberg, 82 N.Y.2d 364 (1993).

Nonetheless, the Planning Board undertook a comprehensive evaluation of

the potential impacts of the Project on scenic resources and community character. The

DEIS, SDEIS and FEIS included an analysis of each of these areas, including visual

simulations. The Planning Board took these studies, as well as the comments submitted,

into account in its Findings Statement at pages 73 to page 84, which includes an

evaluation of the visual impacts, the potential for shadow flicker, and the need for FAA

lighting. In its Findings Statement, the Planning Board took into account the mitigation

proposed by SLW, including reducing the number of turbines of the Project from 96 to 53

(to 51), minimizing FAA lighting, the use of screening to minimize views of the

substation and the Operations and Maintenance building, painting the turbines off white,

and the requirement to eventually decommission the turbines. Findings Statement, pp.

83-84. After comprehensively evaluating the potential impacts of the Project, the

benefits of a renewable energy project, and weighing those impacts, benefits, and the

proposed mitigation, the Planning Board determined that the impacts from the Project

would be mitigated to the maximum extent practicable. Findings Statement, p. 84. 4

In sum, it is respectfully submitted that the Planning Board took a hard look

at each of the relevant areas of environmental concern identified by the Petitioner, and

4
It should not go unnoticed that the New York State Office of Parks, Recreation and Historic Preservation,
by letter dated May 12, 2010, included in Appendix A.4 of the FEIS, stated "it is our opinion that St. Lawrence
Windpower, LLC (SLW) has demonstrated that they have worked to reduce the overall effects associated with this
project.. .."

13265263.2
 - 19 -

made a reasonable elaboration of the basis of its decision. While Petitioner may disagree

with the outcome of the decision, it is not for this Court to usurp the Planning Board's

decision based upon a disagreement with that decision; rather, this Court's role is limited

to ensuring that the Planning Board satisfied the substantive requirements of SEQR by

taking a hard look at the environmental impacts of the Project, and making a reasoned

elaboration of the basis of its decision. Matter of Jackson, supra. It is respectfully

submitted, for the reasons set forth above, that the Planning Board has done precisely

that, and Petitioner's claims to the contrary should be rejected.

B. The Planning Board Procedurally Complied with SEAR

Petitioner claims that the Planning Board failed to comply with SEQR's

procedural mandates, in that it allegedly failed to coordinate review with the Town of

Lyme Planning Board, and that the Planning Board failed to take into account comments

of Petitioner and an apparent member of the Lyme Planning Board, submitted outside the

close of the public comment period, when it adopted the FEIS and Findings Statement.

As will be more fully demonstrated below, each of Petitioner's claims are wholly without

merit.

First, with respect to the Town of Lyme Planning Board, as noted in the

DEIS, SDEIS, and FEIS, only the Town of Lyme's Zoning Board of Appeals ("ZBA")

was identified as an agency with discretionary permit jurisdiction in the Town of Lyme,

and specifically, for issuance of a special use permit for the transmission line. DEIS,

Table 1-2; SDEIS, Table 1-2; FEIS, Table 1-1. As such, only the Lyme ZBA, not the

Planning Board is an involved agency within the meaning of SEQR. See 6 NYCRR
13265263.2
 - 20 -

§ 617.2(s) (defining an involved agency as one with jurisdiction to approve a project).

Petitioners do not claim that the Town of Lyme has not been provided copies of all SEQR

documentation for the Project. Rather, Petitioners make a conclusory allegation that the

Lyme Planning Board is an involved agency, without identifying its jurisdiction to

approve the project, and that the Planning Board was not provided a copy of the FEIS. In

the absence of any demonstration as to the Lyme Planning Board's jurisdiction, it is

respectfully submitted that Petitioner's claimed errors are without merit.

In any event, since neither the Town of Lyme, nor the Lyme Planning

Board has officially raised any formal objection to the Planning Board's treatment of the

Towns , it is respectfully submitted that the claimed error does not warrant annulment of

the Planning Board's SEQR determination in this case. This precise issue was raised and

rejected in Matter of King v. County of Monroe, 225 A.D.2d 1003, 1004 (4 th Dept. 1998),

wherein the Appellate Division, Fourth Department found that where a municipality is

aware of the action being undertaken, and fails to object, any alleged violation of the

coordinated review requirements does not require nullification of the SEQR review. The

result should be no different here.

Petitioner also claims that the Planning Board's failure to respond to

comments submitted outside the public comment period under SEQR mandates

annulment of the Planning Board's SEQR Findings Statement. It is respectfully

5
It is SLW's understanding that the comments referenced in the Petition as being submitted by the Lyme
Planning Board were, in fact, unauthorized comments submitted by a single member of the Lyme Planning Board.
As a result, these comments should not be considered a formal objection to the Cape Vincent Planning Board's
treatment of the Town of Lyme.

13265263.2
 - 21 -

submitted that Petitioner's contentions in this regard ask this Court to provide a remedy

where no violation exists.

Specifically, it is undisputed by Petitioner that the comments submitted by

WPEG, as well as those purporting to be comments from the Town of Lyme Planning

Board, were submitted outside the public comment period on the SDEIS. Petition and

Complaint, paragraphs 52 and 53. Petitioner affirmatively alleges that the comments

submitted were received by the Planning Board at its September 8, 2010 meeting

(Petition and Complaint, paragraph 56), after the acceptance of the FEIS on August 18,

2010. Petition and Complaint, paragraph 55. Nothing in SEQR compels a Lead Agency

to consider comments filed outside the public comment period.

Furthermore, contrary to Petitioner's apparent contention, the requirement

contained in 6 NYCRR § 617.11(a) that a Lead Agency wait for at least ten (10) days

after the acceptance of an FEIS before adopting a Findings Statement is not intended to

provide a comment period on the FEIS itself. It also does not require a Lead Agency to

consider comments if received during that period. Only the FEIS itself is required to

contain a response to comments, received during the public comment period, and the

FEIS contains precisely that.

It is respectfully submitted that should this Court accept Petitioner's

contention, that is, that all comments, no matter when received, must be responded to or

risk nullification of a Lead Agency's SEQR determination, it would result in a never

ending process. The Project proposed by SLW has been under review by the Planning

Board for well over three years, the DEIS, SDEIS and FEIS comprise thousands of pages,
13265263.2
 - 22 -

there have been multiple comment periods on the DEIS and SDEIS, which comments

have been responded to in the SDEIS and FEIS, respectively. This deliberative process

undertaken by the Planning Board resulted in an unprecedented 114-page Findings

Statement, which exhaustively evaluates the impacts of the Project, the proposed

mitigation and avoidance measures, and the potential benefits of the proposed Project.

There must come a time when, in the absence of new information, the process must be

brought to a halt. There is no evidence in the Petition and Complaint that the comments

submitted contain any new information not previously considered by the Planning Board.

As a result, for all of the reasons discussed above, it is respectfully submitted that the

Planning Board, both substantively and procedurally, fully complied with the

requirements of SEQR, and Petitioner's claims to the contrary should be dismissed.

POINT III

THERE ARE NO IMPERMISSIBLE

CONFLICTS OF INTEREST

Petitioner's Fifth and Sixth Causes of Action claim that the Planning

Board's adoption of a Findings Statement for the Project on September 15, 2010 must be

nullified due to alleged conflicts of interest of unnamed members of the Planning Board

"in wind farm development". Petitioner claims that these alleged conflicts of interest

held by unnamed members of the Planning Board violates both General Municipal Law

("GML") Article 18 as well as the Town of Cape Vincent's Ethics Code. As will be fully

demonstrated below, none of the members of the Planning Board have a conflict of

13265263.2
 - 23 -

interest in SLW's Project within the meaning of either GML Article 18 or the Town of

Cape Vincent's Ethics Code, Petitioner's claims must be rejected.

Specifically, GML Article 18 sets forth the circumstances in which a

conflict of interest may occur, and the requirement to disclose such conflicts. GML

§ 801 prohibits municipal officers from holding an interest which may conflict with their

official duties. As relevant herein, GML § 800(3) defines an interest as a "direct or

indirect pecuniary or beneficial interest accruing to the municipal official" and that for

purposes of Article 18, the municipal official is deemed to have an interest in a contract

of his or her "spouse, minor children and dependents." Id. If so, GML § 803 requires

that such interests be disclosed. Failure to disclose such interests and/or to participate in

decisions which may be impacted by such interests may result in nullification of

particular governmental decisions. 6 Such is not the case here.

As discussed in the Affidavit of Timothy Conboy, Acciona has prepared a

disclosure statement of the financial interests held by municipal officials in properties

identified within the last 6 years for wind farm development, and has posted this

disclosure statement on the St. Lawrence Wind Project web site. Affidavit of Timothy

Conboy, ¶ 32 and Exhibit B. This disclosure goes beyond the requirements set forth in

GML Article 18, and discloses interests held by relatives other than spouses, minor

children, and dependents.

6
The Cape Vincent Ethics Code contains similar provisions, but only applies to legislative action.

13265263,2
 - 24 -

As set forth in Exhibit B to Timothy Conboy's Affidavit, no member of the

Cape Vincent Planning Board has a direct interest in the SLW Project, nor does any

spouse, minor child or dependent of any member of the Cape Vincent Planning Board.

Only Planning Board member Karen Bourcy has, to Acciona's knowledge, a relative with

an interest in the SLW Project, but these interests are held by an adult son, a brother

and/or a nephew.

Simply stated, as none of the Planning Board members, nor their spouses,

minor children or dependents hold a financial interest in the SLW Project, there is no

conflict of interest within the meaning of GML Article 18 which would require such

interests to be disclosed, or for the Planning Board members to recuse themselves from

voting on matters pertaining to SLW. Nonetheless, Planning Board member Karen

Bourcy disclosed her tangential interest in the Project, and has completely recused herself

from review or discussion of the SLW Project due to her relatives' lease interest in the

project. Thus, even if the interests held by Planning Board members' relatives were such

that they were required to recuse themselves under GML Article 18 and the Town of

Cape Vincent's Ethics Code, they did so.

In sum, none of the Planning Board members or the spouses, minor

children or dependents of the Planning Board members, holds a financial interest in the

SLW Project within the meaning of GML Article 18 or the Cape Vincent Ethics Code.

Even if they did, those members recused themselves from the vote which lies at the heart

of Petitioner's claims. As a result, Petitioner's claims regarding alleged improper

13265263.2
 At a Term of Supreme Court held in
and for the County of Jefferson,
in the City of Watertown, New York
on the 14th day of May, 2007.

PRESENT: HONORABLE HUGH A. GILBERT

Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT COUNTY OF JEFFERSON

IN THE MATTER OF WIND POWER

ETHICS GROUP (WPEG) and SARAH BOSS,

Petitioners, MEMORANDUM DECISION

AND ORDER,

- vs - Index No. 07-0789

RJI No. 22-07-0250

ZONING BOARD OF APPEALS OF THE TOWN
OF CAPE VINCENT, ST. LAWRENCE
WINDPOWER, LLC, and JOHN DOE, and
MARY ROE, BEING FICTITIOUS NAMES TO
REPRESENT UNKNOWN LANDOWNERS WHO
HAVE CONTRACTED WITH ST. LAWRENCE
WINDPOWER, LLC FOR INSTALLATION OF
COMMERCIAL WIND GENERATION FACILITIES,

Respondents.

By written Decision dated February 28, 2007 the Zoning Board of Appeals for

the Town of Cape Vincent found that Petitioners had standing to seek an interpretation of a

November 8, 2006 decision of the Planning Board. It further found that St. Lawrence

Windpower LLC ("SLW") is a permitted site plan use in the AR District and a "public utility."
different from the public at large. We find that her interests are within the zone of those to be

protected by the Code and therefore she has standing to pursue this matter.

In order for WPEG to have standing, it must have at least one member with

individual standing, in this case Ms. Boss, and must be appropriate to act as a representative of

the group whose rights it is asserting. Douglaston Civic Assn. Inc. v. Galvin, 36 N Y 2d 1

(1974). As noted above, the ZBA held that the group had standing. We have considered the

factors outlined by the Court of Appeals and find that WPEG is an appropriate organization to

act as representative of its members, who are all property owners in Cape Vincent. The

organization has been involved with all of the proceedings before the Town and we decline to

hold that it lacks the organization standing to pursue this Article 78 proceeding.

We turn now to the issue of ripeness. Respondent contends that the February

28, 2007 determination is merely an interim or preliminary decision which is not reviewable at

this time. It asserts that Petitioners do not stand to suffer concrete injury unless and until

SLW's application for site plan review is deemed complete and ultimately approved.

Petitioners believe that the use proposed by SLW is not permitted in the AR

zone. In its Decision of February 28, 2007 the ZBA found that the application is a permitted

site plan use in the AR District as a public utility. We disagree with Respondent that this

determination is similar to the grant or denial of preliminary site plan approval, which would

not be reviewable as a final decision. Ogden Citizens for Responsible Land Use v. Planning

Board of the Town of Ogden, 224 A D 2d 921 (1996). Rather, by this decision, the project

proposed by SLW is a permitted use as a utility subject only to site plan review. Just as SLW

3
would have been able to initiate an Article 78 proceeding to challenge a ZBA decision that it

is not a utility, Petitioners may seek review of this final decision. We also note that the ZBA

concurs that its decision is final and reviewable by the Court.

Therefore, it is

ORDERED, ADJUDGED AND DECREED that the Respondent's motion is

respectfully denied; and it is further

ORDERED, ADJUDGED AND DECREED that SLW is hereby directed to

serve an Answer to the Petition by June 22, 2007; and it is further

ORDERED, ADJUDGED AND DECREED that Replies, if any, shall be

served by June 29, 2007; and it is further

ORDERED, ADJUDGED AND DECREED that the Court will hear oral

argument in this matter on Thursday, July 5, 2007 at 9:30 a.m..

Dated: June 5, 2007

at Watertown, New York

ENTER

BERT
Supreme Court Justice

4
 Assessing and Mitigating Noise Impacts
New York State
Department of Environmental Conservation

Department ID: Program ID:

PROGRAM POLICY DEP-00-1 n/a

Issuing Authority: Environmental Conservation Law Originating Unit: Division of Environmental

Articles 3, 8, 23, 27 Permits

Name: Jeffrey Sama Office/Division: Environmental Permits

Title: Director Unit:

Signature: /S/ Date: 10/6/00 Phone: (518) 402-9167

Issuance Date: October 6, 2000 Revised: February 2, 2001 Latest Review Date (Office Use):

Abstract: Facility operations regulated by the Department of Environmental Conservation

located in close proximity to other land uses can produce sound that creates significant noise
impacts for proximal sound receptors. This policy and guidance presents noise impact
assessment methods, examines the circumstances under which sound creates significant noise
impacts, and identifies avoidance and mitigative measures to reduce or eliminate noise impacts.

Related References: See references pages 27 and 28.

I. PURPOSE 1

This policy is intended to provide direction to the staff of the Department of Environmental
Conservation for the evaluation of sound levels and characteristics (such as pitch and duration)
generated from proposed or existing facilities. This guidance also serves to identify when noise
levels may cause a significant environmental impact and gives methods for noise impact
assessment, avoidance, and reduction measures. These methods can serve as a reference to
applicants preparing environmental assessments in support of an application for a permit.
Additionally, this guidance explains the Department’s regulatory authority for undertaking noise
evaluations and for imposing conditions for noise mitigation measures in the agency’s approval

1
A Program Policy Memorandum is designed to provide guidance and clarify program issues for Division staff to ensure
compliance with statutory and regulatory requirements. It provides assistance to New York State Department of Environmental Conservation
(DEC) staff and the regulated community in interpreting and applying regulations and statutes to assure that program uniformity is attained
throughout the State. Nothing set forth in a Program Policy Memorandum prevents DEC staff from varying from that guidance as specific
circumstances may dictate, provided the staff's actions comply with applicable statutory and regulatory requirements. As this guidance
document is not a fixed rule, it does not create any enforceable right by any party using the Program Policy Memorandum.
of permits for various types of facilities pursuant to regulatory program regulations and the State
Environmental Quality Review Act (SEQR).

II. BACKGROUND

Noise is defined as any loud, discordant or disagreeable sound or sounds. More

commonly, in an environmental context, noise is defined simply as unwanted sound. Certain
activities inherently produce sound levels or sound characteristics that have the potential to
create noise. The sound generated by proposed or existing facilities may become noise due to
land use surrounding the facility. When lands adjoining an existing or proposed facility contain
residential, commercial, institutional or recreational uses that are proximal to the facility, noise is
likely to be a matter of concern to residents or users of adjacent lands.

A. Sources of Noise Generation

The three major categories of noise sources associated with facilities are (1) fixed
equipment or process operations; (2) mobile equipment or process operations; and (3)
transport movements of products, raw material or waste. The fixed plant may include a
very wide range of equipment including: generators; pumps; compressors; crushers of
plastics, stone or metal; grinders; screens; conveyers; storage bins; or electrical
equipment. Mobile operations may include: drilling; haulage; pug mills; mobile treatment
units; and service operations. Transport movements may include truck traffic within the
operation, loading and unloading trucks and movement in and out of the facility. Any or all
of these activities may be in operation at any one time. Singular or multiple effects of
sound generation from these operations may constitute a potential source of noise.

B. Potential for Adverse Impacts

Numerous environmental factors determine the level or perceptibility of sound at a

given point of reception. These factors include: distance from the source of sound to
receptor; surrounding terrain; ambient sound level; time of day; wind direction;
temperature gradient; and relative humidity. The characteristics of a sound are also

DEP-00-1rev.2/2/01 The DEC Policy System 2 February 2, 2001

 important determining factors for considering it as noise. The amplitude (loudness),
frequency (pitch), impulse patterns and duration of sound all affect the potential for a
sound to be a noise. The combination of sound characteristics, environmental factors and
the physical and mental sensitivity of a receptor to a sound determine whether or not a
sound will be perceived as a noise. This guidance uses these factors in assessing the
presence of noise and the significance of its impacts. It relies upon qualitative and
quantitative sound evaluation techniques and sound pressure level impact modeling
presented in accepted references on the subject.

C. Mitigation

Mitigation refers to actions that will be taken to reduce the effects of noise or the
noise levels on a receptor. Adverse noise effects generated by a facility can be avoided
or reduced at the point of generation thereby diminishing the effects of the noise at the
point of reception. This guidance identifies various mitigation techniques and their proper
application either at the source of noise generation or on a facility’s property. Alternative
construction or operational methods, equipment maintenance, selection of alternative
equipment, physical barriers, siting of activities, set backs, and established hours of
construction or operation, are among the techniques that can successfully avoid or reduce
adverse noise effects.

D. Decision Making

When an assessment of the potential for adverse noise impacts indicates the need
for noise mitigation, it is preferred that specifications for such measures be incorporated in
a noise analysis and in the applicant’s work or operational plan necessary for a complete
application. Presenting a plan that incorporates effective noise mitigation provisions
facilitates the Department’s technical and environmental review and minimizes or negates
the imposition of permit conditions by the Department. Adherence to these plans
becomes a condition of a permit.

DEP-00-1rev.2/2/01 The DEC Policy System 3 February 2, 2001

 Noise avoidance and mitigation measures may also be imposed directly as
conditions of permit issuance. This guidance will review the statutory authority under
which the Department can require the mitigation of noise effects.

III. POLICY

In the review of an application for a permit, the Department of Environmental

Conservation is to evaluate the potential for adverse impacts of sound generated and emanating
to receptors outside of the facility or property. When a sound level evaluation indicates that
receptors may experience sound levels or characteristics that produce significant noise impacts
or impairment of property use, the Department is to require the permittee or applicant to employ
reasonable and necessary measures to either eliminate or mitigate adverse noise effects.
Options to be used to fulfill this guidance should be implemented within the existing regulatory
and environmental review framework of the agency.

Regulatory authority for assessing and controlling noise effects are contained in both
SEQR and specific Department program regulations. Specific regulatory references are as
follows:

Section 3-0301(1)(i) of the Environmental Conservation Law (ECL) states that the
commissioner shall have the power to: “i. Provide for prevention and abatement of all water,
land and air pollution including but not limited to that related to particulates, gases, dust, vapors,
noise, radiation, odor, nutrients and heated liquids.”

To comply with Article 8 of the ECL and 6 NYCRR Part 617, State Environmental Quality
Review Act, consideration of all relevant environmental issues must be undertaken in making a
determination of environmental significance. Noise impact potential is one of many potential
issues for consideration in a SEQR review.

Environmental Conservation Law (ECL) Article 23, Title 27, Mined Land Reclamation Law
(MLRL), requires applicants for permits to prepare and submit a mined land use plan to the
Department for approval. The plan must describe, “the applicant’s mining method and measures

DEP-00-1rev.2/2/01 The DEC Policy System 4 February 2, 2001

to be taken to minimize adverse environmental impacts resulting from the mining operation.”
The provisions to be incorporated in a Mined Land Use Plan, as specified in 6 NYCRR Section
422.2, include the control of noise as a component of the plan.

The solid waste regulations at 6 NYCRR Subdivision 360-1.14(p), establish A-weighted

decibel levels that are not to be exceeded at the property line of a facility.

The Division of Air Resources has regulations in 6 NYCRR Parts 450 through 454 that
regulate the allowable sound level limits on certain motor vehicles. The statutory authority for
these regulations is found in the New York State Vehicle and Traffic Law, Article 10, Section 386.

This guidance does not supercede any local noise ordinances or regulations.

IV. RESPONSIBILITY

The environmental analyst, acting as project manager for the review of applications for
permits or permit modifications and working in concert with the program specialist, is responsible
for ensuring that sound generation and noise emanating from proposed or existing facilities are
properly evaluated. For new permits or significantly modified permits, there should be a
determination as to the potential for noise impacts, and establishment of the requirements for
noise impact assessment to be included in the application for permit. Where the Department is
lead agency, the analyst is responsible for making a determination of significance pursuant to
SEQR with respect to potential noise impacts and include documentation for such determination.

Where impacts are to be avoided or reduced through mitigation measures, the analyst, or
where there are program requirements to address noise, the program specialist, should
determine the effectiveness and feasibility of those measures and ensure that the permit
conditions contain specific details for such measures. It should also be determined if additional
measures to control noise are to be imposed as a condition of permitting. Appropriate permit
language for the permit conditions should be developed by the program specialist and the
analyst. The results of noise impact evaluations and the effectiveness of mitigation measures

DEP-00-1rev.2/2/01 The DEC Policy System 5 February 2, 2001

shall be incorporated into SEQR documents and, where necessary, permit conditions shall be
placed in final permits to ensure effective noise control.

When it is determined that potential noise effects, as well as other issues, warrant
evaluation of impacts and mitigation measures in a Draft Environmental Impact Statement (EIS)
prepared pursuant to SEQR, the environmental analyst with the Division of Environmental
Permits assumes responsibility for determining the level of evaluation needed to assess sound
level generation, noise effects, and mitigation needs and feasibility.

For existing facilities, the program specialist will determine the need for additional
mitigation measures to control noise effects either in response to complaints or other changes in
circumstances such as new noise from existing facilities or a change in land-use proximal to the
facility.

The applicant or their agent, in preparing an application for a permit and supporting
documentation, is responsible for assessing the potential noise impacts on area receptors.
When potential adverse noise impacts are identified, the applicant should incorporate noise
avoidance and reduction measures in the construction or operating plans. The applicant’s
submittal should also assess the effectiveness of proposed mitigation measures in eliminating
adverse noise reception. Where noise effects are determined to be a reason in support of a
SEQR positive declaration, the applicant shall assess noise impacts, avoidance, and mitigation
measures in a Draft EIS using methodologies acceptable to this Department.

V. PROCEDURE
The intent of this section is to: introduce terms related to noise analyses; describe some
of the various methods used to determine the impacts of sound pressure levels on receptors;
identify some of the various attenuators of noise; and list some of the mitigative techniques that
can be used to reduce the effects of noise on a receptor. At the end of the section three levels
of analysis are described. The first level determines the potential for adverse noise impacts
based on noise characteristics and sound pressure increases solely on noise attenuation over
distance between the source and receptor of the noise. The second level factors other
considerations such as topography and noise abatement measures in determining if adverse

DEP-00-1rev.2/2/01 The DEC Policy System 6 February 2, 2001

noise impacts will occur. The third level evaluates noise abatement alternatives and their
effectiveness in avoiding or reducing noise impacts.
The environmental effects of sound and human perceptions of sound can be described in
terms of four characteristics:
1. Sound Pressure Level (SPL may also be designated by the symbol Lp) or
perceived loudness is expressed in decibels (dB) or A-weighted decibel scale dB(A) which
is weighted towards those portions of the frequency spectrum, between 20 and 20,000
Hertz, to which the human ear is most sensitive. Both measure sound pressure in the
atmosphere.
2. Frequency (perceived as pitch), the rate at which a sound source vibrates or
makes the air vibrate.
3. Duration i.e., recurring fluctuation in sound pressure or tone at an interval; sharp
or startling noise at recurring interval; the temporal nature (continuous vs. intermittent) of
sound.
4. Pure tone which is comprised of a single frequency. Pure tones are relatively rare
in nature but, if they do occur, they can be extremely annoying.

Another term, related to the average of the sound energy over time, is the Equivalent
Sound Level or Leq. The Leq integrates fluctuating sound levels over a period of time to express
them as a steady state sound level. As an example, if two sounds are measured and one sound
has twice the energy but lasts half as long, the two sounds would be characterized as having the
same equivalent sound level. Equivalent Sound Level is considered to be directly related to the
effects of sound on people since it expresses the equivalent magnitude of the sound as a
function of frequency of occurrence and time. By its derivation Leq does not express the
maximum nor minimum SPLs that may occur in a given time period. These maximum and
minimum SPLs should be given in the noise analysis. The time interval over which the Leq is
measured should always be given. It is generally shown as a parenthetic; Leq (8) would indicate
that the sound had been measured for a period of eight hours.

Equivalent Sound Level (Leq) correlates well and can be combined with other types of
noise analyses such as Composite Noise Rating, Community Noise Equivalent Level and day-
night noise levels characterized by Ldn where an Leq(24) is measured and 10 dBA is added to all
noise levels measured between 10 pm and 7 am. These different types of noise analyses

DEP-00-1rev.2/2/01 The DEC Policy System 7 February 2, 2001

basically combine noise measurements into measures of cumulative noise exposure and may
weight noise occurring at different times by adding decibels to the actual decibel level. Some of
these analyses require more complex noise analysis than is mentioned in this guidance. They
may be used in a noise analyses prepared for projects.

Designations for sound levels may also be shown as L (10) or L (90) in a noise analysis.
These designations refer to the sound pressure level (SPL) that is exceeded for 10% of the time
over which the sound is measured, in the case of L (10), and 90% of the time, in the case of L (90).
For example, an L (90) of 70 dB(A) means that 70 dB(A) is exceeded for 90% the time for which
the measurement was taken.

A. Environmental Setting and Effects on Noise Levels

1. Sound Level Reduction Over Distance - It is important to have an

understanding of the way noise decreases with distance. The decrease in
sound level from any single noise source normally follows the “inverse
square law.” That is, SPL changes in inverse proportion to the square of the
distance from the sound source. At distances greater than 50 feet from a
sound source, every doubling of the distance produces a 6 dB reduction in
the sound. Therefore, a sound level of 70 dB at 50 feet would have a sound
level of approximately 64 dB at 100 feet. At 200 feet sound from the same
source would be perceived at a level of approximately 58 dB.

2. Additive Effects of Multiple Sound Sources - The total sound pressure

created by multiple sound sources does not create a mathematical additive
effect. Below Table A is given to assist you in calculating combined noise
sources. For instance, two proximal noise sources that are 70 dBA each do
not have a combined noise level of 140 dBA. In this case the combined
noise level is 73 dBA. Since the difference between the two sound levels is 0
dB, Table A tells us to add 3 dB to the sound level to compensate for the
additive effects of the sound. To find the cumulative SPL assess the SPLs
starting with the two lowest readings and work up to the difference between
the two highest readings. For several pieces of equipment, operating at one

DEP-00-1rev.2/2/01 The DEC Policy System 8 February 2, 2001

 time, calculate the difference first between the two lowest SPLs, check Table
A and add the appropriate number of decibels to the higher of the two sound
levels. Next, take the sound level that was calculated using Table A and
subtract the next lowest sound level to be considered for the operation.
Consult Table A again for the additive effect and add this to the higher of the
two sound levels. Follow this process until all the sound levels are
accounted for. As an example, let us say that an area for a new facility is
being cleared. The equipment to be used is: two chainsaws, one operating
at 57 dBA and one at 60 dBA; a front end loader at 80 dBA; and a truck at
78 dBA. Start with the two lowest sound levels: 60 dBA - 57 dBA = 3 dBA
difference. Consulting the chart add 2 dBA to the higher sound level. The
cumulative SPL of the two chainsaws is 62 dBA. Next, subtract 62 dBA from
78 dBA. 78 dBA - 62 dBA = 16 dBA. In this case, 0 dBA is added to the
higher level so we end up with 78 dBA. Lastly, subtract 78 dBA from the 80
dBA. 80 dBA - 78 dBA = 2 dBA a difference of 2 dBA adds 2 dBA to the
higher SPL or 82 dBA. The SPL from these four pieces of equipment
operating simultaneously is 82 dBA.
Table A
Approximate Addition of Sound Levels

Difference Between Two Sound Add to the Higher of the Two Sound
Levels Levels
1 dB or less 3 dB
2 to 3 dB 2 dB
4 to 9 dB 1 dB
10 dB or more 0 dB
(USEPA, Protective Noise Levels, 1978)

3. Temperature and Humidity - Sound energy is absorbed in the air as a

function of temperature, humidity and the frequency of the sound. This
attenuation can be up to 2 dB over 1,000 feet. Such attenuation is short
term and, since it occurs over a great distance, should not be considered in
calculations. Higher temperatures tend to increase sound velocity but does

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 not have an effect on the SPL. Sound waves bend towards cooler
temperatures. Temperature inversions may cause temporary problems
when cooler air is next to the earth allowing for more distant propagation of
sound. Similarly, sound waves will bend towards water when it is cooler than
the air and bounce along the highly reflective surface. Consequently large
water bodies between the sound source and the receptor may affect noise
attenuation over distance.

4. Time of Year - Summer time noises have the greatest potential for causing
annoyance because of open windows, outside activities, etc. During the
winter people tend to spend more time indoors and have the windows
closed. In general, building walls and windows that are closed provide a
15 dB reduction in noise levels. Building walls with the windows open allow
for only a 5 dB reduction in SPL.

5. Wind - Wind can further reduce the sound heard at a distance if the receptor
is upwind of the sound. The action of the wind disperses the sound waves
reducing the SPLs upwind. While it is true that sound levels upwind of a
noise source will be reduced, receptors downwind of a noise source will not
realize an increase in sound level over that experienced at the same
distance without a wind. This dispels the common belief that sound levels
are increased downwind due to wind carrying noise.

6. Land forms and structures - In certain circumstances, sound levels can be

accentuated or focused by certain features to cause adverse noise impacts
at specified locations. At a hard rock mine, curved quarry walls may have
the potential to cause an amphitheater effect while straight cliffs and quarry
walls may cause an echo. Buildings that line streets in cities can cause a
canyon effect where sound can be reflected from the building surfaces
similar to what might happen in a canyon. Consideration of noise impacts
associated with these types of conditions may require specialized expertise
to evaluate impact potential and to formulate suitable mitigation techniques.

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 Consideration of existing noise sources and sound receptors in proximity to a
proposed activity can be important considerations even when the activity under review is
not a noise source. Topography, vegetation, structures and the relative location of noise
receptors and sources to these features are all aspects of the environmental setting that
can influence noise impact potential. As such, land alteration may also indirectly create
an adverse noise impact where natural land features or manmade features serve as a
noise barrier or provide noise attenuation for existing sources of noise, i.e. highway,
railroads, manufacturing activity. Removal of these features, i.e. hills, vegetation, large
structures or walls, can expose receptors to increased sound pressure levels causing
noise problems where none had previously existed.

B. Impact Assessment

1. Factors to Consider

Factors to consider in determining the impact of noise on humans, are as follows:

a. Evaluation of Sound Characteristics

(1) Ambient noise level - A noise can only intrude if it differs in character or
SPL from the normal ambient sound. Most objective attempts to assess
nuisance noise adopt the technique of comparing the noise with actual
ambient sound levels or with some derived criterion.

(2) Future noise level - The ambient noise level plus the noise level from the
new or proposed source.

(3) Increase In Sound Pressure Level - A significant factor in determining the

annoyance of a noise is Sound Pressure Level (SPL). SPLs are
measured in decibels.

(4) Sharp and Startling Noise - These high frequency and high intensity
noises can be extremely annoying. When initially evaluating the effects

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 of noise from an operation, pay particular attention to noises that can be
particularly annoying. One such noise is the back-up beepers required to
be used on machinery. They definitely catch one’s attention as they
were meant to do. Continual beeping by machinery can be mitigated
(see Section V.C. Mitigation - Best Management Practices). Another
impulse noise source that can be very annoying is the exhaust from
compressed air machinery. This exhaust is usually released in loud
bursts. Compressed air exhaust can also be mitigated if it causes a
noise problem by using readily available mufflers or specifically designed
enclosures.

(5) Frequency and Tone - Frequency is the rate at which a sound source
vibrates or makes the air vibrate. Frequency is measured in Hertz (Hz).
Frequency can also be classified as high (“sharp”), low (“dull”), and
moderate. Pure tones are rare in nature. Tonal sounds usually consist
of pure tones at several frequencies. Pure tones and tonal sounds are
discerned more readily by the human ear. Pure tones and tonal sounds
are compensated for in sound studies by adding a calculated number of
dB(A) to the measured sound pressure.

(6) Percentile of Sound Levels - Fluctuations of SPLs can be expressed as a

percentile level designated as L(n) where a given decibel level is
exceeded n % of the time. A designation of L(10) = 70 dBA means the
measured SPLs exceeded 70 dBA 10% of the time. A designation of L(90)
= 70 dBA means the measured SPLs were exceeded 90% of the time.
L(90) is often used to designate the background noise level.

(7) Expression of Overall Sound - Part of the overall assessment of sound is

the Equivalent Sound Level (Leq) which assigns a single value of sound
level for a period of time in which varying levels of sound are experienced
over that time period. The L eq value provides an indication of the effects
of sound on people. It is also useful in establishing the ambient sound
levels at a potential noise source.

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 In order to evaluate the above factors in the appropriate context, one must
identify the following: 1) appropriate receptor locations for sound level calculation or
measurement; 2) ambient sound levels and characteristics at these receptor
locations; and 3) the sound pressure increase and characteristics of the sound that
represents a significant noise effect at a receptor location.

b. Receptor Locations

Appropriate receptor locations may be either at the property line of the parcel on
which the facility is located or at the location of use or inhabitance on adjacent
property. The solid waste regulations require the measurements of sound levels be
at the property line. The most conservative approach utilizes the property line. The
property line should be the point of reference when adjacent land use is proximal to
the property line. Reference points at other locations on adjacent properties can be
chosen after determining that existing property usage between the property line and
the reference point would not be impaired by noise, i.e., property uses are relatively
remote from the property line. The location of the facility should be shown on a map
in relation to each potential receptor. Any future expansion should be described in a
narrative as well as depicted on a map. The map and narrative should also include
the distance of the operation to each point of reception including the distance at the
point in time when an expanding operation will be closest to the receptors.

c. Thresholds for Significant Sound Pressure Level (SPL) Increase

The goal for any permitted operation should be to minimize increases in sound
pressure level above ambient levels at the chosen point of sound reception.
Increases ranging from 0-3 dB should have no appreciable effect on receptors.
Increases from 3-6 dB may have potential for adverse noise impact only in cases
where the most sensitive of receptors are present. Sound pressure increases of
more than 6 dB may require a closer analysis of impact potential depending on

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 existing SPLs and the character of surrounding land use and receptors. SPL
increases approaching 10 dB result in a perceived doubling of SPL. The perceived
doubling of the SPL results from the fact that SPLs are measured on a logarithmic
scale. An increase of 10 dB(A) deserves consideration of avoidance and mitigation
measures in most cases. The above thresholds as indicators of impact potential
should be viewed as guidelines subject to adjustment as appropriate for the specific
circumstances one encounters.
Establishing a maximum SPL at the point of reception can be an appropriate
approach to addressing potential adverse noise impacts. Noise thresholds are
established for solid waste management facilities in the Department’s Solid Waste
regulations, 6 NYCRR Part 360. Most humans find a sound level of 60 - 70 dB(A) as
beginning to create a condition of significant noise effect (EPA 550/9-79-100,
November 1978). In general, the EPA’s “Protective Noise Levels” guidance found

that ambient noise levels # 55 dBA L(dn) was sufficient to protect public health and

welfare and, in most cases, did not create an annoyance (EPA 550/9-79-100,
November 1978). In non-industrial settings the SPL should probably not exceed
ambient noise by more than 6 dB(A) at the receptor. An increase of 6 dB(A) may
cause complaints. There may be occasions where an increase in SPLs of greater
than 6 dB(A) might be acceptable. The addition of any noise source, in a non-
industrial setting, should not raise the ambient noise level above a maximum of 65
dB(A). This would be considered the “upper end” limit since 65 dB(A) allows for
undisturbed speech at a distance of approximately three feet. Some outdoor
activities can be conducted at a SPL of 65 dB(A). Still lower ambient noise levels
may be necessary if there are sensitive receptors nearby. These goals can be
attained by using the mitigative techniques outlined in this guidance.

Ambient noise SPLs in industrial or commercial areas may exceed 65 dB(A) with
a high end of approximately 79 dB(A) (EPA 550/9-79-100, November 1979). In
these instances mitigative measures utilizing best management practices should be
used in an effort to ensure that a facility’s generated sound levels are at a minimum.
The goal in an industrial/commercial area, where ambient SPLs are already at a high
level, should be not to exceed the ambient SPL. Remember, if a new source

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 operates at the same noise level as the ambient, then 3 dB(A) must be added to the
existing ambient noise level to obtain the future noise level. If the goal is not to raise
the future noise levels the new facility would have to operate at 10 dB(A) or more
lower than the ambient.(see Table A)

Table B
HUMAN REACTION TO INCREASES IN SOUND PRESSURE LEVEL

Increase in Sound Pressure (dB) Human Reaction

Under 5 Unnoticed to tolerable
5 - 10 Intrusive
10 - 15 Very noticeable
15 - 20 Objectionable
Over 20 Very objectionable to intolerable
(Down and Stocks - 1978)

Impact assessment will vary for specific project reviews, but must consist of certain
basic components for all assessments. Additional examination of sound generation and
noise reception are necessary, where circumstances warrant. Sound impact evaluation is
an incremental process, with four potential outcomes:

C exemption criteria are met and no noise evaluation is required;

C noise impacts are determined to be non-significant (after first-level evaluation);
C noise impacts are identified as a potential issue but can be readily mitigated
(after second level evaluation); or
C noise impacts are identified as a significant issue requiring analysis of
alternatives as well as mitigation (third level evaluation).

All levels of evaluation may require preparation of a noise analysis. The required
scope of noise impact analysis can be rudimentary to rather sophisticated,
depending on circumstances and the results obtained from initial levels of evaluation.
Recommendations for each level of evaluation are presented below.

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 2. Situations in Which No Noise Evaluation is Necessary

When certain criteria are satisfied, the need for undertaking a noise impact
analysis at any level is eliminated. These criteria are as follows:

a. The site is contained within an area in which local zoning provides for the
intended use as a “right of use”. It does not apply to activities that are
permissible only after an applicant is granted a special use permit by the local
government; and

b. The applicant’s operational plan incorporates appropriate best management

practices (BMPs [see Section V.C. Mitigation - Best Management Practices])
for noise control for all facets of the operation.

Where activities may be undertaken as a “right of use”, it is presumed that noise

has been addressed in establishing the zoning. Any residual noise that is present
following BMP implementation should be considered an inherent component of the
activity that has been found acceptable in consideration of the zoning designation of
the site.

3. First Level Noise Impact Evaluation

The initial evaluation for most facilities should determine the maximum amount of
sound created at a single point in time by multiple activities for the proposed project.
All facets of the construction and operation that produce noise should be included
such as land clearing activities (chain saw and equipment operation), drilling,
equipment operation for excavating, hauling or conveying materials, pile driving, steel
work, material processing, product storage and removal. Land clearing and
construction may be only temporary noise at the site whereas the ongoing operation
of a facility would be considered permanent noise. An analysis may be required for

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 various phases of the construction and operation of the project to assure that
adverse noise effects do not occur at any phase.

To calculate the sound generated by equipment operation, one can consult the
manufacturers’ specifications for sound generation, available for various types of
equipment. Another option for calculating the sound to be generated by equipment is
to make actual measurements of sound generated by existing similar equipment,
elsewhere.

Tables C and D summarize noise measurements from some common equipment

used in construction and mining. Table E summarizes the noise level, in decibels
(dB[A]), from some common sources. This information can be used to assist
Department staff in relating potential noise impacts to sound levels produced by
commercial and industrial activities. Use of these tables in the first level of analysis
will help determine whether or not noise will be an issue and whether actual
measurements should be made to confirm noise levels.

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 Table C
PROJECTED NOISE LEVELS

Noise Measurements 1,000 feet 2,000 feet 3,000 feet

Source
Primary and 89 dB(A) at 100 ft 69.0 dB(A) 63.0 dB(A) 59.5 dB(A)
secondary
crusher

Hitachi 501 92 dB(A) at 50 ft 66.0 dB(A) 60.0 dB(A) 56.5 dB(A)

shovel loading

Euclid R-50 90 dB(A) at 50 ft 64.0 dB(A) 58.0 dB(A) 54.4 dB(A)

pit truck
loaded

Caterpillar 80 dB(A) at 300 ft 69.5 dB(A) 63.5 dB(A) 60.0 dB(A)

988 loader
(The Aggregate Handbook, 1991)

Table D
Common Equipment Sound Levels

EQUIPMENT DECIBEL LEVEL DISTANCE in feet

Augered earth drill 80 50

Backhoe 83-86 50

Cement mixer 63-71 50

Chain saw cutting trees 75-81 50

Compressor 67 50

Garbage Truck 71-83 50

Jackhammer 82 50

Paving breaker 82 50

Wood Chipper 89 50

Bulldozer 80 50

Grader 85 50

Truck 91 50

Generator 78 50

Rock drill 98 50
(excerpt and derived from Cowan, 1994)

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 Table E

(The Aggregate Handbook, 1991)

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 The sound level at receptor locations should be calculated using the inverse
square rule whereby sound is attenuated over distance. Again, each doubling of the
distance from the source of a noise decreases the SPL by 6 dB(A) at distances
greater than 50 feet. This calculation should first consider the straight line distance
between the point of noise generation and the point of noise reception with the
presumption that no natural or manmade features exist along the transect between
the two points that would further attenuate sound level. Calculations should be
performed for each point of reception in all directions being careful to evaluate the
worst case noise impact potential by considering activities at the point where they
would be closest to a receptor. The sound level calculated for the point of reception
should be related to ambient sound levels. Ambient sound levels can be either
measured or assumed based on established references for the environmental setting
and land use at the point of reception. For estimation purposes, ambient SPLs will
vary from approximately 35 dB(A) in a wilderness area to approximately 87 dB(A) in
a highly industrial setting. A quiet seemingly serene setting such as rural farm land
will be at the lower end of the scale at about 45 dB(A), whereas an urban industrial
area will be at the high end of this scale at around 79 dB(A) (EPA 550/9-79-100,
November 1978). If there is any concern that levels based on reference values do
not accurately reflect ambient SPL, field measurements should be undertaken to
determine ambient SPLs.

Where this evaluation indicates that sound levels at the point of reception will not
be perceptible, similar to or only slightly elevated as compared to ambient conditions,
no further evaluation is required. When there is an indication from this initial analysis
that marginal or significant noise impact may occur, further evaluation is required. In
determining the potential for an adverse noise impact, consider not only ambient
noise levels, but also the existing land use, and whether or not an increased noise
level or the introduction of a discernable sound, that is out of character with existing
sounds, will be considered annoying or obtrusive. (see B.1.a Evaluation of Sound
Characteristics)

4. Second Level Noise Impact Evaluation

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 Further refine the evaluation of noise impact potential by factoring in any
additional noise attenuation that will be provided by existing natural topography,
fabricated structures such as buildings, walls or berms or vegetation located between
the point of noise generation and noise reception. This analysis may require
consideration of future conditions and the loss of natural noise buffers over time.

Dense vegetation that is at least 100 feet in depth will reduce the sound levels by
3 to 7 dB(A). Evergreens provide a better vegetative screen than deciduous trees.
Keep in mind that if a vegetative screen does not currently exist, planting a
vegetative screen may require 15 or more years of growth before it becomes
effective.

The degree to which topography attenuates noise depends on how close the
feature is located to the source or the receptor of the noise. Topography can act as
a natural screen. The closer a hill or other barrier is to the noise source or the
receptor, the larger the sound shadow will be on the side opposite the noise source.
Certain operations such as mining and landfills may be able to use topography to
maintain a screen between the operation and receptors as they progress. Mining
operations may be able to create screens by opening a mine in the center of the site
using and maintaining the pit walls as barriers against sound (Aggregate Handbook,
1991).

If after taking into account all the attenuating features the potential still exists for
adverse noise impact, other types of noise analyses or modeling should be used to
characterize the source. An Equivalent Sound Level (L eq ) analysis or a related type
of noise analysis may better define activities or sources that require more mitigation
or isolation so that noise emanating from these sources will not cause an adverse
impact.

Where it is demonstrated that noise absorbing or deflecting features further

attenuate sound reception to a level of no significant increase, no further analysis is
necessary. Where it is determined that noise level or the character of the noise may

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 have a significant adverse effect on receptors, other noise mitigation measures
should be evaluated in an expanded noise analysis.

5. Third Level - Mitigation Measures

When the above analyses indicate significant noise effects may or will occur, the
applicant should evaluate options for implementation of mitigation measures that
avoid, or diminish significant noise effects to acceptable levels (see Section V.C.
Mitigation - Best Management Practices). Adequate details concerning mitigation
measures and an evaluation of the effectiveness of the mitigative measures through
additional sound level calculations should be provided in a noise analysis. These
calculations are to factor in the noise reduction or avoidance capabilities of the
mitigation measures. In circumstances where noise effects cannot readily be
reduced to a level of no significance by project design or operational features in the
application, the applicant must evaluate alternatives and mitigation measures in an
environmental impact statement to avoid or reduce impacts to the maximum extent
practicable per the requirements of the State Environmental Quality Review Act
(SEQR).

The noise analysis should be part of the application or a supplement to it, and will
be part of the SEQR environmental assessment by reference. Duplicative noise
analysis information is not required for the permit application and the assessment of
impacts under SEQR. A proper analysis can satisfy information needs for both
purposes.

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 C. Mitigation - Best Management Practices (BMP) for Reducing Noise

Various noise abatement techniques are available for reducing frequency of sound,
duration of sound or SPLs at receptor locations. The mitigation techniques given below
are listed according to what sound characteristic they mitigate.

1. Reduce noise frequency and impulse noise at the source of generation by:

a. Replacing back-up beepers on machinery with strobe lights (subject to other

requirements, e.g., OSHA and Mine Safety and Health Administration, as
applicable). This eliminates the most annoying impulse beeping;

b. Using appropriate mufflers to reduce the frequency of sound on machinery

that pulses, such as diesel engines and compressed air machinery;

c. Changing equipment: using electric motors instead of compressed air driven

machinery; using low speed fans in place of high speed fans;

d. Modifying machinery to reduce noise by using plastic liners, flexible noise

control covers, and dampening plates and pads on large sheet metal surfaces;
and

2. Reduce noise duration by:

a. Limiting the number of days of operation, restricting the hours of operation and
specifying the time of day and hours of access and egress can abate noise
impacts.

b. Limiting noisier operations to normal work day hours may reduce or eliminate
complaints.

Limiting hours of construction or operation can be an effective tool in reducing

potential adverse impacts of noise. The impacts of noise on receptors can be

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 significantly reduced by effectively managing the hours at which the loudest of the
operations can take place.

Implementation of hours of operation does not reduce the SPL emanating

from a facility. Determining whether or not hours of operation will be effective,
mitigation requires consideration of: public safety, for example road construction
at night may reduce traffic concerns and facilitate work; duration of the activity, is
it a one time event necessary to meet a short term goal or will the activity become
an ongoing operation; and surrounding land use, consider what type(s) of land
use is proximal to the activity and at what time(s) might a reduction of noise levels
be necessary. There may be other factors to consider due to the uniqueness of a
given activity or the type of land use adjacent to the activity. Hours of operation
should also consider weekend activities and legal holidays that may change the
types of land use adjacent to the permitted activity or increase traffic levels in an
area.

The best results from using hours of operation as a mitigative measure will be
obtained if the hours are negotiated with the owner or operator of the facility. The
less noisy aspects of an operation may not have to be subject to the requirements
of hours of operation such as preparing, greasing and maintaining machinery for
the upcoming day’s operation. The more noisy operations can be scheduled to
begin when people in the receptor area are less likely to be adversely effected.
Hours of operation should be included in the operation plans for a facility that
becomes part of the permit, or in the event that there is no operation plan, can be
included as a permit condition.

3. Reduce Noise sound pressure levels by:

a. Increasing the setback distance.

b. Moving processing equipment during operation further from receptors.
c. Substituting quieter equipment (example - replacing compressed air fan with
an electric fan could result in a 20 dB reduction of noise level).

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 d. Using mufflers selected to match the type of equipment and air or gas flow on
mechanical equipment.
e. Ensuring that equipment is regularly maintained.
f. Enclosing processing equipment in buildings (example - enclosing noisy
equipment could result in an 8-10 dB noise level reduction, a 9 inch brick wall
can reduce SPL by 45-50 dB).
g. Erecting sound barriers such as screens or berms around the noise
generating equipment or near the point of reception. The angle of deflection
also increases as the height of a screen or barrier increases. Screens or
barriers should be located as close to the noise source or the receptor as
possible. The closer the barrier is located to the source or the receptor, the
greater the angle of deflection of the sound waves will be creating a larger
“sound shadow” on the side opposite the barrier. Stockpiles of raw material or
finished product can be an effective sound barrier if strategically placed.
h. phasing operations to preserve natural barriers as long as possible.
i. altering the direction, size, proximity of expanding operations.
j. Designing enclosed facilities to prevent or minimize an SPL increases above
ambient levels. This would require a noise analysis and building designed by
a qualified engineer that includes adequate ventilation with noise abatement
systems on the ventilation system.

Public notification of upcoming loud events can also be used as a form of

mitigation although it doesn’t fit easily into the categories above. People are less
likely to get upset if they know of an upcoming event and know that it will be
temporary.
The applicant should demonstrate that the specific mitigation measures proposed
will be effective in preventing adverse noise effects on receptors.

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 D. Decision Making - Conditioning Permits to Limit Noise Impacts

Preferably, the mitigation measures as outlined in the construction and operational

plans should be relied upon to mitigate the effects of noise on receptors. The permit
should state that the activity will be conducted in accordance with the approved plan.
Otherwise, mitigation measures and BMP’s can be imposed within specific permit
conditions.

It is not the intention of this guidance to require decibel limits to be established for
operations where such limits are not required by regulation. There are, however,
instances when a decibel limit may be established for an operation to ensure activities do
not create unacceptable noise effects, as follows:

1. The review of a draft and final environmental impact statement demonstrates the
need for imposition of a decibel limit;
2. A decibel limit is established by the Commissioner’s findings after a public hearing
has been held on an application;
3. The applicant asks to have a decibel limit to demonstrate the ability to comply; or
4. A program division seeks to establish a decibel limit as a permit condition, when
necessary to demonstrate avoidance of unacceptable noise impact.

Ultimately, the final decision must incorporate appropriate measures to minimize or

avoid significant noise impacts, as required under SEQR. Any unavoidable adverse
effects must be weighed along with other social and economic considerations in deciding
whether to approve or deny a permit.

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REFERENCES

1) Cowan, James P., Handbook of Environmental Acoustics, Van Nostrand Reinhold, 1994.

2) Down, C.G. and Stocks, J.; Environmental Impact of Mining. Applied Science Publishers
Ltd., ISBN 0853347166, 1978.

3) U.S. Dept of Transportation - Federal Highway Administration Office of Research and

Development; Highway Noise-A Manual for Highway Noise and Land Use, Nov. 1974.

4) New York State Motor Vehicle Law, Chapter IV, Subchapter E, 450.2, Part 450, “Noise
From Heavy Motor Vehicles,” 200.701 CN, February 28, 1997.

5) Beranek, L.A. ed., Noise and Vibration Control. Cambridge, MA: Institute of Noise Control
Engineering, 1971, pp. 164-174 and 182-191.

6) Barksdale, R.D., editor, 1991. The Aggregate Handbook: National Stone Association
(Washington, DC), 1.V.

7) Norman, David K., Wampler , Peter J., Throop, Allen H., Schnitzer, E. Frank, and Roloff,
J., 1996. “Best Management Practices for Reclaiming Surface Mines in Washington and
Oregon.” Oregon Dept. of Geology and Mineral Industries, Open File Report 0-96-2.

8) United States Environmental Protection Agency, Protective Noise Levels, Condensed

Version of EPA Levels document, EPA 550/9-79-100, November 1978, Office of Noise
Abatement & Control, Washington, D.C.

9) United States Environmental Protection Agency, Information on Levels of Environmental

Noise Requisite to Protect Public Health and Welfare with an Adequate Margin of Safety,
EPA 550/9-74-004, March 1974, Office of Noise Abatement and Control, Washington,
D.C.

10) City of Davis General Plan, Appendix E Background Information on Environmental

Acoustics, November 1996.
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11) The Australian National University, “Physics and Psychophysics of Music”, ACAT 1003,
David Worrall, http://www.anu.edu.au/ITA/ACAT/drw/PPofM/Intensity2.html, 1998.

12) Danish Wind Turbine Manufacturers Association, Measuring and Calculating Sound
Levels, November 18, 1997.

Additional Reading

a. Beranek, Leo L. and Istavan L. Ver, Noise and Vibration Control Engineering, John Wiley
& Sons, Inc. New York, 1992.

b. Beranek, Leo L., Noise and Vibration Control, Institute of Noise Control Engineering,
Revised Edition, Washington, C.C., 1988.

c. Diehl, George, M., Machinery Acoustics, John Wiley & Sons, New York, 1973.

d. Erwin, J.D., Graf, E. R., Industrial Noise and Vibration Control, Prentice Hall, Englewood
Cliffs, New Jersey, 1979.

e. Jensen, Paul, et al, Industrial Noise Control Manual, U.S. Department of Health,
Education and Welfare, Public Health Service, Cincinnati, 1978.

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