The Ohio Supreme Court unanimously affirmed the decision of the Ohio Power Siting Board (OPSB) to approve an amendment in the Buckeye Wind turbine project.
The court’s decision was announced Wednesday, less than two months after oral arguments in the case were held before the court.
An amendment to the first phase of the wind turbine project was filed by project developer EverPower in March 2013 proposing to adjust the construction staging areas, move one staging area 1.3 miles west, shift the project substation by 1,000 feet, add a new access road, modify four previously approved access roads and move the electric collection line system underground.
The amendment was approved by the OPSB in February 2014. A notice of appeal was filed on behalf of Champaign County and the townships of Goshen, Union and Urbana on July 16, 2014.
In the Supreme Court opinion written by Justice Terrence O’Donnell, the court states the county failed to timely object to the board’s decision to limit the scope of the hearing to only certain proposed changes in the amendment application, forfeiting their right to appeal the board’s decision.
“Accordingly, we conclude that the board’s decision to limit the scope of the hearing to certain proposed changes was reasonable and lawful and that the county never objected to the board’s limitation and therefore we affirm the decision of the board,” O’Donnell states.
In the county’s notice of appeal, the party contended the board erred by approving the amendment without holding a required hearing as the proposed amendments would result in a material increase in the environmental impact of the facility or a substantial change in the location of all or a portion of the facility.
The notice also contended the board erred by not holding a hearing as it denied the county and townships the only opportunity to be heard.
In the court’s opinion, O’Donnell cites multiple opportunities the county had to raise concerns to the board.
When an administrative law judge determined that three of the amendment’s proposed changes did not require a hearing in November 2013, O’Donnell states, no party objected to the administrative law judge’s entry or filed an interlocutory appeal.
O’Donnell also cites the hearing on the amendment held on Jan. 6, 2014. He states citizen group Union Neighbors United (UNU) objected to the scope of the hearing and requested that the proposal to bury electrical collection lines also be addressed. The administrative law judge overruled the objection and the county did not express any objection to the scope of the hearing or attempt to introduce any evidence.
“We hold that the county’s failure to take any action to challenge the scope of the hearing until after the hearing had already occurred and after the board had issued its order deprived the board of an opportunity to cure any alleged error at a time when it reasonably could have done so,” O’Donnell stated. “Therefore, the county forfeited its right to challenge the scope of the hearing on appeal, and the board acted reasonably and lawfully in limiting the scope of the hearing, and we therefore affirm the decision of the board.”
In a statement, EverPower project manager Jason Dagger stated the company is pleased with the court’s decision.
“We are pleased with the positive ruling from the Ohio Supreme Court affirming the Ohio Power Siting Board’s ruling on Feb. 18, 2014, to approve minor changes to the project,” Dagger stated. “This is another positive step for the project which will bring up to $900,000 to Champaign County annually as well as new jobs and revenue to the local school districts. We will continue to work with the local community leaders to move the project forward.”
In a press release, Champaign County Prosecutor Kevin Talebi stated the court’s decision stems from the original project application approved by the OPSB in 2010 as part of the first phase of the Buckeye Wind project and involves issues that were raised by the Champaign County Board of Commissioners and township trustees from Goshen, Union and Urbana Townships.
“When the original application was approved in 2010, the commissioners and the trustees had concerns that the project failed to set adequate conditions to protect the public interest, health and welfare, such as requiring a specific condition for repair of any roads damaged in constructing the project,” Talebi stated. “These issues were raised and litigated with the Power Siting Board. The Power Siting Board found the concerns raised by the townships and the commissioners to be without merit and the Supreme Court subsequently affirmed the Power Siting Board’s decision.”
Talebi continues by stating at the time when the project amendment was filed the commissioners and trustees did not specifically object to the amendments but did take the position that the amended conditions still failed to protect the public interest, health and welfare of the community. Talebi notes these concerns were raised with the board at the earliest opportunity.
“It should also be noted that the Power Siting Board, when approving these amendments, failed to set conditions which were then standard in other projects approved around the same time,” Talebi stated. “One example of such a condition is a road use maintenance agreement which was included as a condition in the overlapping project here in Champaign County as part of the Buckeye II certificate.
“Today’s ruling by the Supreme Court fails to rectify an inadequacy of the Buckeye I certificate. The commissioners and trustees were hopeful that the Supreme Court would instead choose to send this matter back to the Power Siting Board so that standard conditions, such as a road maintenance agreement, could be implemented as part of the Buckeye I certificate. Nevertheless, the commissioners and the township trustees will of course accept the decision of the high court and continue to work within the confines of applicable Ohio law in order to protect the interests of the community.”
Under development since 2006, the Buckeye Wind project proposed to construct more than a combined 100 turbines in Champaign County through two phases of the project.
Wednesday’s ruling marks the third time the Ohio Supreme Court has affirmed the board’s decision in a case related to the project.
In April, the court affirmed the decision of the OPSB in granting certificate in the second phase of the project after oral arguments were held in December 2015. After oral arguments in the first phase of the project were held in September 2011, the court affirmed the board’s decision in March 2012.
UNU is also appealing another portion of the project in the court. Last October, UNU appealed the Ohio Power Siting Board’s decision to approve an extension in the first phase of the project, moving the deadline for construction to begin from March 2015 to May 2018.
Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.