Thursday, March 18, 2010

GEF LORAX Working Group feedback on Senate Bill S-6825

Note: the Assembly version of this bill is A10003.

According to discussions with Assemblyman Richard Brodsky, the bill is written to cover both transmission line and distribution line vegetation management activities; however, as there is no specific PSC-required Vegetation Management Policy for a utility's distribution lines, the implied reading is solely targeted at transmission lines. Clarification of reference may be needed (both transmission & distribution or transmission only). The discussion (which follows) assumes the context of Transmission Line vegetation management only.

There are several substantive issues / shortfalls with the bill, as follows:

1) The bill should more clearly state what the nature of the 60 day notification consists of. For example, is this advanced notification to each property owner (private or municipal) done via directed mailings or left door cards? Notifications should clearly spell out the scope and nature of the work specific to the property in question. Any notification should also have a contact phone or email by which to set up an on-site consultation with a qualified representative of the utility.

2) A written record of notification should be maintained indicating that the property owner has concurred with the plan. No work by utility or its contractor should occur without this proof. (Currently, for example, Con Ed's approved vegetation management policy is to attempt contact with homeowner twice - but if no contact is made, it appears that work may commence anyway. This is not acceptable.) Documentation of property owner contact and consent should be forwarded to both the PSC and the municipality before work starts.

3) Besides advanced notification, there must be a requirement to clearly survey & mark the boundaries of the ROW before any work commences.

4) All trees to be removed should also be clearly marked ahead of notification and review.

5) No enforcement mechanism is defined to ensure such advanced notice to property owners actually occurs. (Current regulations and vegetation management plans require notification now, but the results are spotty at best, as mentioned previously.) Who holds oversight for this? What can be done to ensure proper oversight occurs? What complaint process will exist for property owners?

6) The term "community meeting" (relating to the 30 day notification) needs to be better defined: What is a "community and where/when should meetings be held? Holding such meetings as a public session of the town council or village board makes sense.

7) What if at the community meeting (or at an on-site one-on-one meeting) folks don't agree to the work being proposed by the utility? There is no process for mediation or arbitration called out. (Why wouldn't the utilities position simply remain: "PSC is making us do this"??)

8) Mitigation requirements for impacts of vegetation management activities (such as clear-cutting the ROW) on homeowners and municipalities are not addressed.

9) The timing of notifications should be compatible with all remedies available to the property owner and municipality, such as petitioning the PSC.  Con Ed is working with a multi-year management cycle and can give notice months in advance of any work.

Further analysis:
Advanced notification, per se, does not begin to address the full range of issues concerning property value and/or environmental impacts experienced with the current policy of clear-cut line clearing work.

Public review of environmental concerns relating to planned development actions traditionally falls into the category of a SEQR Environmental Impact Statement - which is supposed to outline options by which to minimize and mitigate any undesirable environmental impacts. However, Con Ed (and the other Transmission Utilities) are not required to produce an EIS for transmission line work as their actions fall under a "master" SEQR finding by the Public Service Commission from 2004. (This original SEQR is quite possibly deceptive & illegal - having used a "short form" for a project estimated at over 190,000 acres. Furthermore, the "no environmental impact" box was checked on this short form.)

Thus, give the original "blanket" SEQR, there is currently no mechanism by which public input can be heard at a local level, nor can such input serve to induce a modification of utility plans or of the PSC- approved vegetation management policy.

The solution is not simply to require Con Ed (or other utilities) to hold public meetings for review of planned actions, but also they should be required to fully outline the environmental and property value impacts of proposed work and propose effective restoration / remediation / mitigation measures to be agreed upon by affected parties. (Yes, this is effectively a SEQR-like solution, but one in which the utilities are not given a "free pass" by the PSC.) So why not simply require a full SEQR EIA to be undertaken in this situation?? To make this EIA effective in responding to local conditions, the local municipality should be assigned as the "lead agency" for review purposes. An EAF (Environmental Assessment Form) would be required to be filled out by the utility and reviewed by the municipality. (Perhaps this could be given a specific framework and called an "utility vegetation management assessment form".)

A further necessary extension of this would be the need to define a (public) arbitration process by which acceptable mitigation can be reached - as it is certain that the utilities will want to do less than the affected property owners desire to have done. For the SEQR process now, the last resort now is filing an Article 78 action. This seems too extreme (cost-wise & time-wise) of a step to have to make simply to ensure the utility does not negatively impact your property or local environment. It puts the legal burden of environmental compliance back on the homeowner or the municipality - which is not where it should be, but rather on the utility! So an arbitration function outside of the courts needs to be defined.

Without including environmental review, mitigation requirements, and arbitration, the severe problems resulting from utility line management policy will continue throughout the state.

A printer-ready version of this analysis is available (.pdf).

1 comment:

-mg- said...

At our Friday meeting with Senator Stewart-Cousins, she pointed out that probably the single most important aspect of the "Notification Bill" is that it would require Con Edison (or other utilities) to come into public session (30 days prior). In this public session, anything that the utility said, promised or advised would occur - would become part of the public record and thus could be used in follow-on proceedings...