State Supreme Court hears arguments in turbine case


By Nick Walton - nwalton@civitasmedia.com



COLUMBUS – Oral arguments regarding the second phase of the Buckeye Wind Farm project were presented in front of the Ohio Supreme Court Wednesday.

More than two years after appeals were filed to the court, state Supreme Court justices listened to testimony and asked questions about the project during a 43-minute hearing. Each party was given 15 minutes to present their side.

The Ohio Power Siting Board’s (OPSB) decision to grant a certificate for construction of the second phase of the project in May 2013 was followed by appeals to the state Supreme Court from intervening parties in November 2013. The appealing parties include Champaign County, Goshen, Union and Urbana townships and citizen group Union Neighbors United (UNU).

County cites three errors in board’s decision

In their notice of appeal, the county and townships contended the board erred in failing to require the project applicant Champaign Wind, LLC, to post financial assurance for decommissioning the project in an amount sufficient to cover the total decommissioning costs, failing to include a condition requiring that setbacks from the turbines to non-participating landowners’ property lines conform to the manufacturer’s setback recommendation if in excess of the minimum setback provided by rule, and failing to conduct proceedings to afford due process in its hearings as the county and townships had no meaningful ability to cross-examine experts regarding parts of the application.

During Wednesday’s hearing, Champaign County Assistant Prosecutor Jane Napier discussed and was asked questions about the county and townships’ three points of contention.

On the issue of decommissioning, Napier said the local entities believe the bond should not be set per turbine.

“The process that was set in place by the Power Siting Board is that they were going to look at the total decommissioning cost for the whole project and then divide those up into a per turbine basis,” Napier said. “We believe that that may not protect the county and townships and the local citizenry in decommissioning those.”

As the discussion continued Napier said the county is trying to get the per turbine calculation.

“If we need to decommission one turbine, what is the cost of that, not the total decommissioning cost divided by the turbine – because at least the testimony was – that may not cover the amount of decommissioning costs for the one when you divide it down,” Napier said.

Regarding the due process dispute, Napier said the county is concerned about a transportation study that would detail where and how the turbines would be brought into the county. Citing previous questioning in the case and reviewing the study, Napier stated an expert who testified in the case and the study provided insufficient information on a transportation plan.

“We also want to know and some of the questions we asked were ‘if you’re going to have to expand the roadway and the intersections can you do that within the right of way or do you have to go out and get private easements onto people’s property,’” Napier said. “The gentleman couldn’t answer that question and it wasn’t in the transportation study. That certainly is of interest because certainly the public has the right to not give an easement so that would change the route.”

UNU discusses potential safety concerns

A point of contention UNU raised in its notice of appeal was that the board excluded evidence, sustained objections to direct testimony and cross-examination, and quashed subpoenas seeking evidence of the potential health, welfare, and safety hazards posed by wind farms. These hazards UNU cited included blade throw, blade shear, blade defects, ice throw, fire, noise and shadow flicker.

During Wednesday’s hearing, UNU’s attorney, Jack Van Kley, indicated the board used a double standard in rulings of evidence and discovery.

Van Kley said while evidence and testimony from the applicant and the board’s staff about the health and safety record of other turbine models was admitted, UNU’s subpoena seeking evidence concerning noise and blade safety at other wind farms with different wind turbine models was rejected.

When asked what information on a turbine model was requested, Van Kley noted a Vestas model was used in the Timber Road II Wind Farm in Paulding County where a blade failure occurred.

In the spring of 2012, a Vestas turbine in the Paulding County project suffered a blade shear.

“We served a subpoena on the owner of the Timber Road wind farm to obtain the information concerning how far the blade debris had flown in that accident,” Van Kley said.

Chief Justice Maureen O’Connor asked Van Kley if there was a distinctive difference between the Vestas model the applicant declined to use and the type of model they were using. He replied the models were comparable with the same height, rotation of gearboxes and had the same shutoff safety features.

“The safety features that were imposed in Timber Road II by the board are identical to the safety features that are used for the Champaign Wind certificate and that’s one reason why the information concerning the accident at Timber Road is so critical here,” Van Kley said.

Van Kley added no injuries or property damage was reported, but said some of the blade debris landed on other people’s property, posing a risk in other cases.

Another issue UNU noted in the appeal was that setbacks between wind turbines, roadways, and neighboring residences and properties established in the certificate were inadequate to prevent threats and damage to non-participating neighbors and the public from blade throw and other potential health risks.

Justice William M. O’Neill asked Van Kley about his proposal that a reasonable setback from any turbine would be 1,600 feet and why this distance would be reasonable. Van Kley said there were ample instances around the world in which blades have flown this distance and cited a board staff member testifying that a 1,640 setback was considered following the Timber Road II incident before the applicant withdrew the Vestas model from its application.

After both phases of the project were discussed, Van Kley stated the noise limits in the second phase were 120 percent higher than the limits in the first phase. Van Kley noted the board excluded evidence from a resident near the Timber Road II project who said he was bothered by the noise and received 14 noise complaints.

Following the oral arguments from the intervening parties, representatives for the Ohio Attorney General’s Office and project developer EverPower spoke.

Representing the board from the Attorney General’s Office, assistant attorney general Werner L. Margard III said the court should affirm the board’s decision for the same reasons it did for the first phase of the project in 2012.

“The appellants in this case were active participants, they had the opportunity to conduct discovery, to participate fully in all of the hearings at all of its various stages, to present briefs and arguments to the board and just as in the previous case the board’s order in this case clearly presented a thorough recitation of the statutory standards, explored all of the arguments with respect to each of the issues and provided a thorough summary of the evidence,” Margard said.

Champaign Wind attorney Michael J. Settineri reiterated the proceedings in the second phase of the project involve the same parties and issues that were presented to the court in the first phase of the project.

He added the board came up with a more rigorous decommissioning method in the second phase of the project.

“Before construction, an independent engineer has to calculate the total cost of decommissioning, divide by the number of turbines and the applicant has to post that bond amount before it starts construction for each turbine,” Settineri said.

Speaking on turbine safety, Settineri said there are many safety features on the turbines and noted there would be three control rooms monitoring the turbines.

The state Supreme Court can affirm the board’s decision, reverse the decision or remand issues back to the OPSB for further hearing.

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.

The second phase of the Buckeye Wind project is one of three portions of the project pending in the Ohio Supreme Court.

In October, UNU appealed the OPSB’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. The county and townships are also appealing an amendment to the first phase of the project.

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.

EverPower is also developing the Scioto Ridge project consisting of up to 180 turbines in Logan and Hardin counties. This project is also pending in the Ohio Supreme Court.

An application to dismiss the appeal was filed Tuesday by appellant Joseph Grant stating that issues in the dispute have been resolved by settlement.

Previously, an entry granting an agreed motion to stay proceedings in the case was filed in October ordering the parties to notify the court within 60 days of the status and whether the stay may be lifted. The agreed motion, which was filed on Oct. 16, states the appellant and appellees agreed that the case may be stayed so that conditions to a dispositive settlement agreement may be satisfied.

By Nick Walton

nwalton@civitasmedia.com

Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.

Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.