supreme court of ohio clerk of court ncv 10 zo1g tall. (opinion, order, and certificate...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
In the Matter of the Application ofBuckeye Wind, LLC for a Certificateto Install Numerous ElectricityGenerating Wind Turbines inChampaign County to be Collected atan Electrical Substation in UnionTownship, Champaign County, Ohio
Case No. 10-1554
On Appeal from the Ohio Power SitingBoard, Case No. 08-666-EL-BGN
MERIT BRIEF OF APPELLANTS UNION NEIGHBORS UNITED (UNU),ROBERT McCONNELL, DIANE McCONNELL, AND JULIA F. JOHNSON
Jack A. Van Kley (0016961) (Counsel of Record)Van Kley & Walker, LLC132 Northwoods Blvd., Suite C-1Columbus, OH 43235Telephone: (614) 431-8900Facsimile: (614) 431-8905ivankley&vankleywalker.comAttorney for Appellants UNU, Robert &Diane McConnell, and Julia Johnson
Christopher A. Walker (0040696)Van Kley & Walker, LLC137 North Main StreetSuite 316Dayton, OH 45402-1772Telephone: (937) 226-9000Facsimile: (937) 226-9002cwalker(a^vanklewalker.comAttorney for Appellants UNU, Robert &Diane McConnell, and Julia Johnson
Daniel A. Brown (0041132)Brown Law Office LLC204 South Ludlow St., Suite 300Dayton, OH 45402Facsimile: (937) 224-1217dbrown brownlawdayton.comAttorney for Urbana Country Club
Werner L. Margard (Counsel of Record)John H.JonesAssistant Attorneys GeneralOffice of the Attorney GeneralGeneral Public Utilities Section180 East Broad Street, 9lh FloorColumbus, OH 43215Telephone: (614) 466-4397Facsimile: (614) [email protected]@puc.state.oh.usAttorneys for Ohio Power Siting Board
Margaret A. Malone (0021770)(Counsel of Record)Christina E. GrasseschiAssistant Attorneys GeneralEnvironmental Enforcement Section30 East Broad Street, 25`" FloorColumbus, OH 43215-3400Telephone: (614) 466-2766Facsimile: (614) 644-1926mmalonek ohioattorneyQeneral.eovchristina.Qrasseschig
ohioattomeygeneral.govAttorneys for Ohio Power Siting Board
SUPREME COURT OF OHIO
NCV 10 ZO1G
CLERK OF COURT
Larry Gearhardt (Counsel of Record)Chief Legal CounselOhio Farm Bureau FederationP.O. Box 182383Columbus, OH 43218-2383Telephone: (614) 246-8256Facsimile: (614) 246-8656lgearhardt(a ofb£oruAttorney for Ohio Farm Bureau Federation
Nick A. Selvaggio, Prosecuting Attorney(0055607) (Counsel of Record)Jane A. Napier, Ass't Prosecuting Att'y (0061426)Champaign County200 North High StreetUrbana, OH 43078Telephone: (937) 484-1900Facsimile: (937) 484-1901ianccno(a ctcn.netAttorneys for Champaign County, and Goshen,Salem, Union, Urbana, and Wayne Townships
G.S. Weithman (Counsel of Record)Director of LawCity of Urbana205 South Main StreetP.O. Box 109Urbana, OH 43078Telephone: (937) 652-4397diroflawkctcn.netAttorney for City of Urbana
Thomas E. Lodge (Counsel of Record)Carolyn S. FlahiveSarah ChambersThompson Hine LLP41 S. High St., Suite 1700Columbus, OH 43215-6101Telephone: (614) 469-3200Facsimile: (614) 469-3361tom.lodee(a thompsonhine.comCarol,}n.flahive [email protected] for Champaign Telephone Co.
M. Howard Petricoff (0008287) (Counsel of Record)Stephen M. Howard (0022421)Michael J. Settineri (0073369)Gino R. Russo (0075595)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-5414Facsimile: (614) 719-4904mhpetricoff(cwoscomsmhoward vorys.commi settineri(worvs.comgrrussokyorys.comAttorneys for Buckeye Wind LLC
Gene ParkPiqua Shawnee Tribe1803 Longview DriveSpringfield, OH 45504Telephone: 937 215 [email protected]
TABLE OF CONTENTS
1. STATEMENT OF FACTS ..............................................................................................1
A. The Buckeye Wind Project ......................................................................................1
B. The UNU Intervenors . .............................................................................................2
C. Regulation of Wind Energy Facilities in Ohio .... ....................................................3
D. Proceedings Below ...................................................................................................5
1. Testimony of Christopher Shears .......................................................................5
2. Setbacks for Protection of Neighboring Properties . ..........................................9
3. Testimonv of Michael Nissenbaum, M.D ........................................................10
4. Testimony about Noise ..... ...............................................................................11
5. Certificate Issuance, Petition for Rehearin ,¢ and Anpeal ........ .........................16
II. ARGUMENT
Standards for Certification Of Major Utilitv Facilities ................................................17
Standard Of Review ..... ................................................................................................18
First Proposition of Law: A Wind Energy Utility Authorized By APower Siting Board Certificate That Lacks The Enforceable NoiseLimits Necessary To Prevent High Noise Levels From CausingSerious Discomfort, Annoyance, And Sleep Deprivation Among The
Utility's Neighbors Does Not Represent The Minimum AdverseImpact As Required By R.C. 4906.10(A)(3) ...... .........................................................18
A. To Prevent Discomfort, Annoyance, And Sleep DeprivationAt Day And Night From Inherently Intrusive Wind TurbineNoise, The Certificate Should Not Allow BW To Increase TheNoise Levels Imposed On Nonparticipating Neighbors ByMore Than Five dBA Above The Background Sound Leve1 .........................20
B. To Avoid Discomfort, Annoyance, And Sleep Deprivation AtDay And Night, The Certificate Should Limit The TurbineNoise Imposed On Nonparticipating Neighbors To A Ceilingof 35 dBA ......................................................................................................23
C. OPSB Erred By Failing To Include Any Limitation ToControl dBC Noise, The Most Harmful Component Of TheNoise Spectrum, Even Though The Founder Of BW's OwnNoise Consulting Company Has Demonstrated The NecessityOf This Standard . ...........................................................................................26
D. To Effectively Control Noise, The Certificate Must HaveEnforceable Noise Limits That Provide Clarity On TheStandards To Be Met . ...................................................................................29
Second Proposition of Law: A Power Siting Board Certificate IssuedWithout Requiring A Wind Energy Utility's Application To IncludeModeling Or Similar Data Identifying The Level Of Low FrequencyNoise At Neighboring Property Lines Violates Ohio Adm.Code 4906-17-08(A)(2)(b) .............................................................................................................32
Third Proposition of Law: A Wind Energy Utility Authorized By APower Siting Board Certificate That Lacks The Setbacks Necessary ToPrevent High Noise Levels From Causing Discomfort, Annoyance,And Sleep Deprivation Among The Utility's Neighbors Does NotRepresent The Minimum Adverse Impact As Required By R.C.4906.10(A)(3) ..............................................................................................................33
Fourth Proposition of Law: A Certificate Issued By The Power SitingBoard For A Wind Energy Utility Must Require The SetbacksBetween Wind Turbines And Neighboring Residences And PropertiesNecessary To Ensure The Health, Safety, And Well-Being Of theUtility's Neighbors In Compliance With The Board's CertificationCriteria In R.C. 4906.10(A)(6) ....................................................................................34
Fifth Proposition of Law: The Power Siting Board May Not Base ItsIssuance Of A Certificate On Expert Opinions From A Lay WitnessConceming Information Not Within The Witness' PersonalKnowledge ...................................................................................................................39
Sixth Proposition of Law: The Power Siting Board Abuses ItsDiscretion By Allowing One Party To Introduce Evidence WithoutProducing A Sponsoring Witness At The Hearing With PersonalKnowledge Of This Evidence, While Denying Other Parties Leave ToDo The Same ................................................................................................................40
Seventh Proposition of Law: A Power Siting Board Certificate ThatAllows The Applicant To Make Post-Certificate Alterations,Information Submissions, And Other Changes To A Wind Energy
ii
Utility Erroneously Relieves The Applicant Of Its Mandatory Burden
Of Proof To Demonstrate Its Entitlement To The Certificate .....................................41
Einhth Proposition of Law: A Power Siting Board Certificate ThatAllows The Applicant To Make Post-Certificate Alterations,Information Submissions, And Other Changes To A Wind EnergyUtility Erroneously Circumvents The Board's Certification Criteria InR.C. 4906.10(A) ...........................................................................................................44
Ninth Proposition of Law: A Power Siting Board Certificate ThatAllows The Applicant To Make Post-Certificate Alterations,Information Submissions, And Other Changes To A Wind EnergyUtility Unlawfully Deprives The Appellants Of Their Statutory RightsOf Participation Under R.C. 4906.08 ......:....................................................................44
Tenth Proposition of Law: A Power Siting Board Certificate ThatAllows The Applicant To Make Post-Certificate Alterations,Information Submissions, And Other Changes To A Wind EnergyUtility Without A Hearing Deprives The Appellants Of ProceduralDue Process ..................................................................................................................46
VIII. CONCLUSION ........................................................................................................48
CERTIFICATE OF SERVICE ..........................................................................................50
APPENDIX
Volume I:
Notice of Appeal (Sept. 3, 2010) .................................................................. APPX1
Entry (July 31, 2009) (ICN 33) ..................................................................... APPX7
Entry (Oct. 20, 1009) (ICN 81) ................................................................... APPX39
Entry (Oct. 21, 2009) (ICN 83) .................................................................. APPX 50
Opinion, Order and Certificate (March 22, 2010) ...................................... APPX50
Application for Rehearing of Intervenors Union Neighbors United,Inc., Robert and Diane McConnell, and Julia F. Johnson(Apri120, 2010) ............................................................................ APPX155
Memorandum in Support of Application For Rehearing(April 20, 2010) ............................................................................ APPX160
iii
APPENDIX (cont'd)
Volume II:
Entry on Rehearing (July 15, 2010) .......................................................... APPX242
R.C. 4903.13 ......................:...................................................................... APPX281
R.C. 4906.01 ............................................................................................. APPX282
R.C. 4906.07 ............................................................................................. APPX284
R.C. 4906.08 ............................................................................................. APPX285
R.C. 4906.10 ............................................................................................. APPX287
R.C. 4906.12 ............................................................................................. APPX290
R.C. 4906.13 ............................................................................................. APPX291
R.C. 4906.20 ............................................................................................. APPX292
Ohio Adm. Code 4906-5-10 ..................................................................... APPX294
Ohio Adm. Code 4906-7-07 ..................................................................... APPX297
Ohio Adm. Code 4906-17-01 ................................................................... APPX310
Ohio Adm. Code 4906-17-05 ................................................................... APPX317
Ohio Adm. Code 4906-17-08 ................................................................... APPX323
Fourteenth Amendment, United States Constitution ................................ APPX331
Section 16, Article I, Ohio Constitution ................................................... APPX333
iv
TABLE OF AUTHORITIES
COURT DECISIONS
Canton Storage & Transfer Co., Inc. v. PUCO (1995), 72 Ohio St.3d 1 ..........................18
Chester Twp. v. Power Siting Comm. (1977), 49 Ohio St.2d 231, 361N.E.2d 436 .........................................................................................................................18
Clayman v. State Med. Bd. (1999), 133 Ohio App.3d 122 ................................................46
Egbert v. Ohio Dep't ofAgriculture (2008), 2008-Ohio-5309 ....................................46, 47
Erdeljohn v. Ohio St. Bd. ofPharmacy, 38 Ohio Misc.2d 1(Hamilton Cty.1987) ..........................................................................................:.......................................39
Haley v. Ohio St. Dental Bd., 7 Ohio App.3d 1(1982) .....................................................39
Indus. Energy Users-Ohio v. Pub. Util. Comm., 117 Ohio St.3d 486, 2008-Ohio-990, 885 N.E.2d 195 ...........................................................................................18, 38
Lassiter v. Dep't of Soeial Serv. (1981), 452 U.S. 18 ........................................................46
LTV Steel Co. v. Indus. Comm'n (2000), 140 Ohio App.3d 680 .................................46, 47
Mathews v. Eldridge (1976), 424 U.S. 319 ..................................................................46, 47
Ormet v. Ind. Comm'n (1990), 54 Ohio St.3d 102 ............................................................46
Seitz v. All Creatures Animal Hosp. (Nov. 15, 1985), Ashtabula App. No.1192, 1985 WL 3679, unreported ......................................................................................46
STATUTES
R.C. 4903.13 ......................................................................................................................18
R.C. 4906.01 ......................................................................................................................17
R.C. 4906.07 ................................................................................................................17, 44
R.C. 4906.08 ................................................................................................................17, 45
R.C. 4906.10 ............................................................................17, 19, 20, 33, 34, 44, 45, 48
R.C. 4906.12 ..... .................................................................................................................18
v
R.C. 4906.13 ........ ..........................................................................................................3, 18
R.C. 4906.20 ..................................................................................................................3, 37
ADMINISTRATIVE MATERL4,LS
Matter ofAdoption of Ohio Adm.Code Chapter 4906-17, OPSB Case No.08-1024-EL-ORD at 40 (Oct. 28, 2008) ..................................................................4, 19, 38
Ohio Adm. Code 4906-5-10 ..............................................................................................45
Ohio Adm. Code 4906-7-07 ..............................................................................................10
Ohio Adm. Code 4906-17-01 ..............................................................................................3
Ohio Adm. Code 4906-17-05 ............................................................................................10
Ohio Adm. Code 4906-17-08 ......................................................................4, 19, 26, 32, 37
CONSTITUTIONAL PROVISIONS
Fourteenth Amendment, United States Constitution ...................................................46, 48
Section 16, Article I, Ohio Constitution ......................................................................46, 48
vi
STATEMENT OF FACTS
This case arises from the Ohio Power Siting Board's issuance of a Certificate of
Environmental Compatibility and Public Need for the Buckeye Wind Project ("Project"), a wind
energy facility proposed for eastern and central Champaign County.
A. The Buckeye Wind Project:
The Project, as approved in the Certificate, would be a vast complex of wind turbines and
associated infrastructure involving 9,000 acres of leased property across six townships in eastern
and central Champaign County. (Application ("Applic."), ICN 2, at 2 (Supplement ("Supp." 2))
The Certificate authorizes the construction of 541 wind turbines, each of which is up to 492 feet
tall. (Opinion, Order, and Certificate ("Certif."), ICN 146, at 4 (Appx. 57) The Project will
dominate the landscape east of the City of Urbana and in the rural residential communities in the
eastern and central portion of the county. The turbines are far taller than any existing structures
in Champaign County and will be visible over 255 square miles. (UNU Exh. tA at 4 (Supp.
506); Applic. Exh. I, ICN 4, at 32 (Supp. 13)(turbines potentially visible over 95.5% of the
visual impact study area); id. at 11 (Supp. 12) (study area covered 268 square miles) There are
2,087 structures (homes and other buildings) within 1,700 meters of the proposed turbine
locations, and 1,004 residences within 1,000 meters. (UNU Exh. 43 (Response to Staff
Interrogatory 12) (Supp. 577)) As will be discussed in this Brief, many of those residents and
property owners will be subjected to distressing and unhealthy levels of wind turbine noise that
will disturb their peaceful enjoyment of their properties by day and interrupt their sleep by night.
Many will be exposed to unreasonable durations of sweeping shadows across their properties and
1 As proposed in the Application, the Project would consist of 70 wind turbines. (Opinion,Order, and Certificate, ICN 146, at 4 (Appx. 57) However, the Commission disapproved theconstruction of 16 of the turbines and conditionally disapproved another two unless theApplicant modifies their location. (Id. at 90, ¶ 36, and 91, ¶¶ 45, 46)
I
flickering, strobe-like effects in their homes. Thus the Project, as approved by the OPSB, will
have a profoundly detrimental effect on the well-being of the host communities and the lives of
the thousands of people who would live within shadows and audible range of the turbines.
B. The UNU Intervenors:
Intervenor Union Neighbors United ("UNU") is a nonprofit corporation formed for the
purpose of promoting the safety and well-being of the Champaign County community by
addressing issues relating to the siting of industrial wind turbines. (UNU Exh. 1 A at 2 (Supp.
504)) UNU consists of nine trustees and officers, all of whom reside in the area that the Project
would affect. (Id) The majority of the properties of UNU members are situated within 1/3 of a
mile of at least one proposed turbine site. (UNU Exh. 19A at 13-14 (Supp. 555-556).
Intervenors Robert and Diane McConnell reside at 4880 E. U.S. Route 36, Urbana, Ohio.
(UNU Exh. 1 A at 10 (Supp. 512) Although the McConnells are members of UNU (UN L 1 Exh.
1 A at 2), they have also intervened individually in these proceedings. Mr. and Mrs. McConnell
own a home situated on a lot of approximately 50 acres. (UNU Exh. 1A at 11). The Certificate
authorizes five of the Project's wind turbines to be constructed within a mile of the McConnells'
property. (Id.) The closest turbine, Turbine 44, would be situated about 798 feet from the
McConnells' property line (UNU Exh. 19A at14 (Supp. 556), and about 1,750 feet from their
home (UNU Exh. 1A at 11 (Supp. 513)).
Intervenor Julia Johnson resides at 4891 E. U.S. Route 36, Urbana, Ohio. Like the
McConnells, she is a Trustee of UNU but has also intervened individually in these proceedings.
Her home sits on 28 acres of land. (Id.) Ms. Johnson also owns an additional 184 acres of
undeveloped property adjacent to her residential property to the south and east. (Id.) The
proposed site for Turbine 48 is located about 648 feet from the edge of this property. (UNU Exh.
19A at 14 (Supp. 556)) According to Exhibit I of the Application, between 55 and 70 of the 70
2
turbines originally proposed for the Project would be visible from Ms. Johnson's property should
the Project be constructed. (Applic. Exh. I, Fig. 7, ICN 4, (Viewshed Analysis map, p. 1 of 2))
The principal focus of the Intervenors' efforts has been to advocate setbacks maintaining
a safe and healthy distance between turbines and neighbors, a goal of which the Project falls
woefully short. (Tr. 1186-87) Adequate setbacks are essential to mitigate turbine effects that
can make neighboring residents miserable, harm their health, and destroy their property values.
C. Regulation Of Wind Energy Facilities In Ohio:
In June of 2008, the General Assembly enacted Am. Sub. H.B. 562, which directed the
OPSB to adopt rules governing the certificating of "economically significant wind farms" having
a generating capacity between five and fifty megawatts (MW). R.C. 4906.13(A), R.C. 4906.20.
Those rules were to address, among other things, aesthetics, wildlife protection, ice throw, noise
levels, blade shear, shadow flicker,2 and decommissioning. R.C. 4906.20(B)(2). H.B. 562 also
mandated that the rules prescribe certain minimum setbacks from wind turbines, as follows:
That minimum shall be equal to a horizontal distance, from the turbine'sbase to the property line of the wind farm property, equal to one and one-tenth times the total height of the turbine structure as measured from itsbase to the tip of its highest blade and be at least seven hundred fifty feetin horizontal distance from the tip of the turbine's blade at ninety degreesto the exterior of the nearest habitable, residential structure, if any, locatedon adjacent property at the time of the certification application.
OPSB issued its rules (Ohio Adm.Code Chapter 4906-17) on May 7, 2009. Those rules
apply to all wind-powered electric generating facilities with a single interconnection to the grid
and designed for, or capable of, operation at an aggregate capacity of five MW or more. Ohio
Adm.Code 4906-17-01(A). Among other things, the rules require the applicant to submit data on
2 "Shadow flicker" is a nuisance phenomenon that occurs when rotating turbine blades passbetween the sun and the viewer, typically at sunrise and/or sunset when the sun's elevation islow. (Staff Exh. 2 (Staff Report, ICN 72) at 42 (Supp. 444))
3
nearby noise-sensitive areas and on projected noise from construction and operation of the
facility.
Despite the requests of the L JNU Intervenors, however, OPSB specifically declined to
establish any noise standards or noise measurement protocols for the protection of neighboring
residents, businesses, and other establishments. Matter ofAdoption of Ohio Adm.Code Chapter
4906-17, OPSB Case No. 08-1024-EL-ORD at 40 (Oct. 28, 2008) (Supp. 639). Furthermore,
over strong objection of the L JNU Intervenors that the minimum setbacks in H.B. 562 will not
adequately protect public health and welfare (id. at 48 (Supp. 641), OPSB's rules simply mirror
those statutory setbacks. Ohio Adm.Code 4906-17-08(C)(1)(c). The Board stated, however, that
"the Board and Board Staff will evaluate setbacks in association with each application on a case-
by-case basis, in light of the specific wind-powered electric generation equipment selected for
the proposed facility and impose conditions for setbacks as the Board determines appropriate."
Id.
The Buckeye Wind application is the first application for OPSB certification of a wind
energy facility, as well as the first to go to hearing. Thus, at the time this case was heard, the
OPSB and its Staff did not have much experience with industrial wind energy facilities of the
scale proposed in this case. Neither did the Applicant Buckeye Wind LLC ("BW") or its parent,
Everpower Wind Holdings ("Everpower"). As of the date of the evidentiary hearing,
Everpower's only experience in constructing and operating a wind energy facility was one 25-
turbine project located on an abandoned strip mine in Pennsylvania. (Tr. at 20) That facility had
been operational since only August of 2009. (Id.)
This case also presents the first opportunity to interpret Ohio Adm.Code Chapter 4906-
17, the Board's new rules governing wind energy facilities. A reasoned and fair outcome,
4
including prudent turbine siting and appropriate impact mitigation, is critical to the people who
will have to live with industrial-scale wind turbines on a daily basis.
D. Proceedings Below:
BW filed its application with the OPSB on April 24, 2009. (Certif. 2) UNU, Mr. and
Mrs. McConnell, and Ms. Johnson (collectively "UNU Intervenors") filed a petition for leave to
intervene on May 8, 2009 (ICN 13), which petition was granted on July 31, 2009. (ICN 33)
OPSB granted intervenor status to twelve parties3 in addition to the UNU Intervenors.
On June 23, 2009, the OPSB Chairman determined that the Application was complete.
(Corres., letter from A. Schreiber to J. Spencer (June 23, 2009)) The OPSB Staff issued its
Report of Investigation on October 13, 2009. (ICN 72, 76, Staff Exh. 2 (Supp. 397) Pursuant to
order of the Hearing Examiner (ICN 81 (Appx. 39)), the Applicant and Intervenors filed written
direct testimony for all witnesses on October 27 and November 2, 2009 respectively.
The Board held a public hearing on the evening of October 28 at Triad High School,
North Lewisburg, Ohio, at which 43 people testified. (Trans. 10/28/09, at 2-3)
Following the public hearing, the Board held an evidentiary hearing from November 9
toDecember 2, 2009.
1. Testimony of Christopher Shears:
BW opened its case in chief with the testimony of Christopher Shears, Everpower's
Senior Vice President for Development. (Tr. 14) Mr. Shears has a degree in Countryside
Management, the precise subject matter of which was not established on the record. (BW Exh. 4
at 2 (Supp. 291)) In his testimony, however, Mr. Shears ventured opinions on a broad range of
3 The additional intervenors were the Champaign County Commissioners, the Boards ofTrustees of Goshen, Urbana, Wayne, Union, Salem, and Rush Townships, the City of Urbana,the Champaign Telephone Company, the Urbana Country Club, the Ohio Farm BureauFederation, and the Piqua Shawnee Tribe.
5
subjects for which he was not qualified as an expert and/or for which no foundation was
provided to demonstrate that he possessed the knowledge necessary to testify about them. For
example:
a) Opinions regarding air pollutants that would be offset by the Buckeye Wind
Project: Mr. Shears claimed in his direct testimony that the 70 proposed turbines for the Project
would collectively generate sufficient electricity to offset 300,000-415,000 tons of carbon
dioxide emissions each year. (BW Exh. 4 at 4 (Supp. 293)) That claim was based on the
premise that electricity from the Project will displace, or offset, electricity from coal-fired power
plants. (Tr. 33 (Supp. 27)) BW did not qualify Mr. Shears as an expert on air pollution control
or the estimation of air emissions. Mr. Shears testified that he did not personally calculate the
pollution offsets claimed by Buckeye Wind in the Application and in his testimony, but that
those calculations were prepared by EDR, BW's consultant. (Tr. 31 (Supp. 25)) BW called no
witnesses from EDR to attest to the basis for the emission offset claims, but instead relied solely
upon Mr. Shears to sponsor EDR's work. Mr. Shears could not testify regarding the basis for the
emission factors upon which the offset claims were based. (Tr. 33, 36 (Supp. 27, 30)) Although
he testified that the claimed emissions offsets were based on an emission factor, he could not
identify that emission factor or how it was derived. (Tr. 32 (Supp. 26))
b) Opinions regarding socioeconomic benefits of the Project: Mr. Shears offered
opinions as to the economic benefits, particularly job generation, that the Project would bring to
the host community and the surrounding region. (BW Exh. 4 at 8 (Supp. 297)) The primary
source of those claims is a report of Buckeye Wind's consultant, Saratoga Associates, included
in the Application as Exhibit R. (Tr. 53-54 (Supp. 47-48); Applic. Exh. R, ICN 7-8) Mr. Shears
did not personally prepare Exhibit R, was not qualified as an expert in economics or
socioeconomics, and was unaware of the basis for key claims in the Saratoga Associates report.
6
(Id.) For example, he did not know the basis for the job creation estimates on page 55 of Exhibit
R (id. at 55 (Supp. 49)), did not know how many construction workers would be employed
locally (id. at 56 (Supp. 50)), and had no understanding of the basis for the multipliers used to
derive the employment predictions in Exhibit R. (Id. at 57 (Supp. 51)) And although Exhibit R
makes sweeping claims about the impact of the project on taxation, property values, and
commercial and industrial development, Mr. Shears was not qualified as an expert in any of
those fields, and none of the Applicant's socioeconomic claims were supported at hearing by
testimony of a witness with knowledge of the basis for those claims.
c) Opinions concerning lack of impact on property values: Although Mr. Shears was not
qualified as an expert on property appraisal or real estate market principles, he offered the
following opinions at page 12 of his testimony:
The topic of property values is very sensitive as the idea that home values candrop precipitously can cause high levels of fear and anxiety. There are manyfactors that contribute to the value of a home or of property, and it is very difficultto isolate the contribution of one particular factor. There have been a number ofattempts to analyze the impact of wind turbines on property value, and resultsfrom appropriately conducted real estate research have shown an absence ofmeasureable effects of wind farm visibility on property transaction values.
(BW. Exh. 4 at 12 (Supp. 293)) The record is devoid of any evidence that Mr. Shears was
sufficiently knowledgeable to offer testimony on the subjects of property appraisal, real estate
market principles, or the determination of what constitutes "appropriately conducted real estate
research."
d) Opinions concerning shadow flicker: Although Mr. Shears was not qualified as an
expert on shadow flicker for purposes of the hearing, and did not prepare the shadow flicker
study attached to the Application (Applic. Exh. L, ICN 5), he opined on the appropriateness of
shadow flicker design goals and modeling as set forth in the Application. (BW Exh. 4 at 13
7
(Supp. 327) BW offered no other witness to testify on the subject of shadow flicker modeling or
mitigation.
At the conclusion of Mr. Shears' testimony, BW moved the admission of both Mr.
Shears' written direct testimony and the Application, which he "sponsored," as evidence. (Tr.
363) The UNU Intervenors moved to strike the above testimony on the grounds that he was not
qualified as an expert to render opinions on those subjects. (Tr. 364-68 (Supp. 91-95)) For the
same reasons, the UNU Intervenors joined in the motion of Champaign County and the
Townships to strike the following portions of the Application, inter alia, for lack of foundation
due to the fact that Mr. Shears demonstrated no detailed knowledge of their contents:
• Exhibit L, Shadow Flicker Analysis (ICN 5)
• Exhibit R, Socioeconomic Report (ICN 7-8)
• Exhibit T, Facts about Ohio Taxes (ICN 8)
• Exhibit U, Cultural Resources Report (ICN 8)
• Exhibit V, Communication Studies (ICN 8)
• Exhibit W, Route Evaluation Study (ICN 8)
(Tr. 370-72 (Supp. 97-99))
The ALJs denied the County and Township Intervenors' motions to strike, reasoning that
the documents in question were part of an Application determined by the Board to be complete.
(Tr. 373 (Supp. 100)) She further noted, "Each of the intervenors has an opportunity to
challenge or to question that information and present a different position on those factors." (Id.)
In a similar fashion, the ALJ denied the UNU Intervenors' motion to strike, stating, "Each of the
intervenors has an opportunity to question and challenge the position of the company on the
issues or the opinions of Mr. Shears." (Tr. 373-74 (Supp. 100-101)) The testimony and
Application exhibits in question were admitted into evidence. (Tr. 374 (Supp. 101))
8
2. Setbacks for Protection of Neighboring Properties: Despite the Project being the first
wind energy facility to be considered by the Board's Staff, and despite the StafPs avowal that it
considered the worst-case impacts of the Project, the Board's Staff recommended only the bare
minimum turbine setbacks required by law. (Tr. 1829 (Supp. 228)) Based on an assumed blade
tip height of 492 feet, those minimum setbacks were 541 feet from a property line and 914 feet
from a residence on an adjacent property. (Staff Ex. 2 at 18 (Supp. 420))
At hearing, however, it was shown that the Staff had not even determined that the
minimum setbacks would protect the occupants of adjacent properties. Stuart Siegfried, the
author of the setback discussion in the Staff Report, testified that he was unaware of the basis for
the minimum setbacks in H.B. 562 or whether there was any scientific or health-based
justification for the minimum setback from residences. (Tr. 1826 (Supp. 225)) In fact, despite
repeated questioning, Mr. Siegfried would not acknowledge whether the Staff even conducted an
independent evaluation to determine whether that minimum setback would be adequately
protective. (Tr. 1827-29 (Supp. 226-28)) Although the Staff asked BW on September 16, 2009
for an equation or calculation of the maximum distance for blade throw or ice throw from the
three turbine models being considered by BW (Staff's 1 st Interrogatories, ICN 49, ## 18, 21),
BW still had not provided that information at the time of the hearing. (Tr. 1990 (Supp. 255))
Evidence at hearing also showed that the minimum setbacks were far less protective than
even those recommended by wind turbine manufacturers. GE Energy recommends a "safe
distance" of 984 feet 4 to protect nearby individuals and property from harm as a result of ice
shedding from wind turbine blades. (UNU Exh. 13 (Supp. 536)) Turbine manufacturer Vestas
has issued safety regulations advising that individuals not to stay within a 1,300-foot radius of a
4 GE Energy's recommended "safe distance" is based on a formula of 1.5 x (hub height + rotordiameter). (UNU Exh. 14 (Supp. 537)) Applying that formula to the proposed 492 feet turbine
height for the project yields a setback of 984 feet.
9
turbine unless necessary. (UNU Exh. 11 (Supp. 534)) Turbine manufacturer Nordex goes even
further, recommending a setback of at least 1,640 feet-70% greater than the Staff's
recommended residential setback, and three times greater than its recommended property line
setback. (UNU Exh. 12 (Supp. 535)) The Staff was unaware of any of these manufacturer
recommendations at the time they made their recommendations. (Tr. 1824-25, 1992 (Supp. 223-
24, 256) In fact, BW did not produce them to Staff before the hearing (Tr. 28, 103, 1824-25
(Supp. 23, 60, 223-24)), despite the fact that BW had proposed two Nordex turbine models for
the Project (App. 10 (Supp. 3)) and had "preliminary discussions with Vestas (Tr. 27 (Supp. 22)),
and despite the mandate of Ohio Adm.Code 4906-17-05(C)(2)(c) to produce manufacturer's
safety standards in the application.
3. Testimony of Michael Nissenbaum M.D.: According to the Staff Report, the Ohio
Department of Health, "citing a lack of hard scientific evidence on potential health impacts
associated with utility scale wind projects, . . . has suggested that a setback from non-consenting
residents greater than that included in 4906-17, O.A.C., may be warranted." (Staff Exh. 2 at 38
(Supp. 440)) The Staff noted further that it expected this topic to be "addressed extensively
during the public and evidentiary hearing." (Id.)
To this end, the UNU Intervenors sought to present the testimony of Michael
Nissenbaum, M.D., a practicing radiologist with the Northern Maine Medical Center in Fort
Kent, Maine, who would testify about the health impacts caused by wind turbine noise based in
part on his study of an operating wind farm in Maine. (ICN 75 at 2) Due to Dr. Nissenbaum's
medical duties with a rural hospital, he could not travel to Ohio unless he hired a replacement for
1 week. (ICN 81 at 5) Therefore, pursuant to Ohio Adm.Code 4906-7-07(E)(13) and Ohio R.
Civ. P. 32(A)(3), the UNU Intervenors moved for an order establishing their right to introduce
Dr. Nissenbaum's deposition as evidence in lieu of live testimony before the ALJs at hearing.
10
(ICN 75) Counsel for UNU Intervenors offered to conduct the deposition either by telephone or
in person at Dr. Nissenbaum's office in Maine. (ICN 75 at 2-3)
The ALJ denied the UNU Intervenors' motion, finding that "it is unreasonable to admit
the deposition of Dr. Nissenbaum in lieu of live testimony at the hearing :" (ICN 83 at 3 (Appx.
48)) The ALJ ruled, "Dr. Nissenbaum must, like the other expert witnesses in this case, file his
direct written testimony with the Board ... and be available for cross-examination during the
hearing." (Id.) At the end of their case-in-chief at the evidentiary hearing, the UNU Intervenors
proffered the written direct testimony of Dr. Nissenbaum in order to make a record of the nature
of his testimony had his deposition been admitted into evidence. (Tr. 1631-34 (Supp. 218-221);
UNU Exh. 68 (Supp. 624)) The ALJ ruled that Dr. Nissenbaum's affidavit would be included in
the "correspondence file" in the case docket, but that "it is not part of the record of witnesses
who were available to be cross-examined in the case." (Tr. 1638 (Supp. 222A))
4. Testimony about Noise:
To evaluate the anticipated noise from the wind project, BW hired Hessler Associates to
model the turbines' loudness. (Applic., Exh. K at 1, ICN 5 (Supp. 14A)) This modeling was
performed by David Hessler, the son of the consultant's founder, George Hessler. (Tr. 719 )
David Hessler's report on this study is Exhibit K to BW's Application for the Certificate.
(Applic., Exh. K, ICN 5) Pages 87-102 of the Application discuss the noise report. (ICN 2)
Plots numbered 1A through 3B in Exhibit K are maps of the BW project area with contour lines
showing the predicted noise levels from the turbines.
In his study, David Hessler first measured the noise from wind, leaf rustle, and other
sources already present in the community to determine how much background noise was
available to mask the wind turbine noise. (ICN 5, Applic., Exh. K at 1(Supp. 14A)) In noisier
areas, turbines can be placed closer to neighbors because natural background noise covers up the
11
turbine noise. Contrary to well-established acoustic procedures, Mr. Hessler made every effort
to inaccurately enlarge the recorded background sound by attaching every microphone to a post,
pole, or tree that reflected noise into the microphones, and by placing microphones next to noise
sources such as a livestock pen, wires where perched birds could sing directly into the mikes, and
roads including a state highway. (UNU Exh. 55 at 4; Tr. 732-47; Applic. Exh. K (ICN 5) at 2-6)
Yet despite Mr. Hessler's efforts to skew the results, his sound measurements portrayed
an extremely quiet community. Whereas George Hessler has defined very quiet areas as those
with a background noise level below 40 decibels of A-weighted noise (dBA) (UNU Exh. 69 at
180, Table 1(Supp. 632)), David Hessler calculated a nighttime background level of 29 dBA for
the BW project area (Applic. 95 (Supp. 9)). Richard James, UNU's noise expert, later calculated
a similar nighttime background level of 27 dBA for the project area. (UNU Exh. 31A, Answer
("Ans.") 37 (Supp. 564-65))
Having largely failed to portray the project area as noisy, David Hessler set out to
disguise the noise impacts of BW's turbines in other ways. Although he admitted while
testifying that his noise predictions may be off by as much as five decibels due to the margin of
error in his model (Tr. 760-61 (Supp. 155-56)), he did not disclose that fact to OPSB during the
application process (Tr. 764, 1924-25 (Supp. 156, 249-50)).
BW's application has identified the Nordex N 100, Nordex N90, and Repower MM92 as
turbine models suitable for the project, and represents that the ultimately selected model will be
"similar in design, appearance, and operating characteristics." (Applic. 10, ICN 2 (Supp. 3) The
Nordex N100 is the noisiest of the three turbine models identified in BW's application. (Tr. 772-
73; LJNU Exh. 58 (Supp. 619); ICN 5, Applic. Exh. K at 23 (Supp. 17)) Depending on the wind
speed, the Nordex N100 is noisier than the Repower MM92 by two to three decibels. (Tr. 773
(Supp. 165)) Incredibly, BW did not tell Mr. Hessler about its potential use of the Nordex N100
12
while he was performing his noise study. (Tr. 769-71 (Supp. 161-63)) In fact, Mr. Hessler was
not aware of this fact until cross-examination. (Tr. 769 (Supp. 161)) Consequently, Mr.
Hessler's noise study did not evaluate the noise effects from the noisiest model. Mr. Hessler
testified that, if the Nordex N100 is used, his model would be invalid and would have to be
rerun. (Tr. 2365, 2369 (Supp. 282, 283)) Even though the OPSB Staff noticed the error during
the application process, OPSB did not require BW to correct the error by remodeling the noise
predictions. (Tr. 1900-01 (Supp. 243-44)) Perpetuating this error, the Certificate allows BW to
use the Nordex N100 without rerunning the noise model.
After BW submitted its noise study, OPSB's Staff was unable to verify the accuracy of
BW's noise model because the Staff does not possess the necessary modeling software or
acoustical engineering expertise. (Tr. 1853, 1856, 1871-73, 1878-79 (Supp. 229, 230, 232-34,
237-3 8) Nevertheless, OPSB's Staff just rubberstamped the noise study during the hearing and
the Certificate does the same.
The consequence of OPSB's action is that more than 4000 people in this quiet
community will be exposed to intrusive and annoying noise above accepted acoustic standards.
BW is attempting to shoehorn a large wind project into the midst of a crowded community.
BW's turbines will encircle entire subdivisions and clusters of homes, many of which will
experience noise increases higher than five dBA above the background noise as well as noise
levels above 35 dBA at night. (ICN 5, Applic. Exh. K, Plots 2C and 2D (Supp. 20-2 1)); Tr.
1056-57, 1898-99 (Supp. 1090-1091)) BW admits that 1004 homes are located within 1000
meters (one kilometer or 0.62 mile) from a proposed BW turbine site as the wind project is
configured. (iJN U Exh. 43 at 5, Int. 12 (Supp. 577)) Mr. Hessler estimated that the 34 dBA
contour lines on his noise plots are "a little under a thousand meters" from the proposed turbines.
13
(Tr. 855-56 (Supp. 185-86) Assuming an average of four persons live in each home, about 4016
people will be exposed to these noise levels while they are trying to sleep.
As explained later in this brief, an average of 10% of the persons exposed to noise levels
five dBA above the background noise or 35 dBA will suffer impaired lifestyles due to
discomfort, annoyance, and/or sleep disturbance. At that level, about 400 of the 4000 people
exposed will experience these problems. Noise rising louder than these levels progressively
harms a greater number of people. BW's turbines as proposed will expose 4000 citizens to nose
above these levels, so more than 10% of this population will experience these problems.
Because different individuals have varying degrees of sensitivity to noise, finding a
turbine neighbor to testify to a lack of annoyance, discomfort, or sleep disturbance is not
difficult. Thus, at a 35 dBA noise level, 90% of those exposed will not find the noise
objectionable. To illustrate this point, the driver of a car with a loudly played "boom box" radio
may not be bothered by its noise, even when it annoys the occupants of nearby vehicles. Thus,
the fact that BW was able to produce witnesses who were not bothered by the noise is pointless.
As stated above, BW's turbines will be as close as 590 feet from the property boundaries
and 914 feet from the residences of non-participating neighbors. Rene Taylor, who lives about
1500 to 1800 feet from wind turbines in Illinois, testified about the thumping, swishing, whining,
and roaring noises produced by the turbines. (UNU Exh. 65 at 3 (Supp. 622)) At times, the
turbine noise sounds like whistling fireworks. (Tr. 1093 (Supp. 200)) At other times it sounds
like a roaring train immediately behind the back door of her home. (Tr. 1092-93 (Supp. 199-
200)) She and her family have experienced difficulty sleeping, headaches, irritability, ear
pressure, and fatigue. (UNU Exh. 65 at 3 (Supp. 622)) Some of her family members have heart
palpitations. (Id.) Her youngest daughter has stated that the palpitations feel like a hamster
running across her chest. (Id.) Her autistic son is the most sensitive to the noise, becoming fitful
14
and throwing tantrums until he is able to leave the homestead. (Id. at 4) (Supp. 623) These
conditions have often forced Ms. Taylor and her family to flee indoors due to the unbearable
noise in their yard, but even there the turbine noise penetrating the walls of their home makes
them miserable. (Id. at 2-4 (Supp. 621-23)
Larry Wunsch, who lives near a wind project in Wisconsin, introduced a DVD
documenting the annoyance and discomfort from the noise of a turbine about 1100 feet from his
home. (UNU Exhs. 30, 30A) This recording demonstrates that wind turbines are anything but
quiet, even under the calm conditions portrayed in the video.
Dr. Michael Nissenbaum has found that 14 of 15 neighbors living within 1200 to 3400
feet of the Mars Hill wind project in Maine have experienced physical problems such as sleep
disturbance, headaches, dizziness, and weight changes. (Tr. 530-34; UNU Exh. 51) A survey of
neighbors of wind projects by Dr. Amanda Harry identified adverse symptoms up to a mile from
wind turbines, including sleep disturbance, headaches, palpitations, stress, anxiety, depression,
vertigo, and tinnitus. (L JNIJ Exh. 44 at 21, 30; BW Exh. 6 at 10)
Acoustic engineer Richard James' research has documented that neighbors of wind
turbines are awakened frequently, suffer sleep deprivation, and hear the wind turbines as the
dominant noise when outside their homes. (UNU Exh. 31A, Ans. 49 (Supp. 566)) The noise is
audible inside their homes during the winter with windows closed, especially in bedrooms where
the sounds interfere with sleep. (Id.) Mr. James has personally stayed ovemight in a home about
700 meters (2296 feet) from wind turbines, and discovered that his sleep was disturbed even after
he used a prescription sleep aid. (Id. at Ans. 40 (Supp. 565))
While individuals have varying abilities to sleep, some nearby neighbors of turbines
suffer a loss of sleep. Adequate sleep is essential for general healthy functioning. (i.JNU Exh. 46
at 519 (Supp. 584) (abstract)). Restricting sleep below a person's optimal time in bed can cause
15
a range of neurobehavioral deficits, including lapses of attention, slowed working memory,
reduced cognitive throughput, depressed mood, and perseveration of thought. (Id.) Even the
continued restriction of sleep to less than seven hours per night may cause significant daytime
cognitive dysfunction. (Id. at 519 (abstract) and 526) Reduced sleep is associated with
cardiovascular morbidity, traffic accidents, and death. (Id. at 526 (Supp. 591))
In light of adverse noise consequences at other wind projects, the UNU Intervenors asked
OPSB to make sure that BW's turbines are located far enough away from neighboring property
lines and homes to avoid these harmful impacts and to include reasonable noise standards in the
Certificate. UNU did not request that these limits be applied to the properties being leased to
BW for the turbines, since the landowners participating in BW's project have acquiesced to the
high noise levels near their homes and on their properties.
Even if reasonable noise standards require BW to remove some turbines from the project
to protect the public, BW has the means to keep the project viable by substituting other
properties as turbine locations. In fact, Mr. Hessler revealed that BW has already done this to a
limited degree by adding new turbine sites while Mr. Hessler was looking for ways to reduce
noise impacts. (Tr. 2320 (Supp. 269)) Moreover, Mr. Shears testified that BW has secured
"additional lease positions" and "additional land positions" in the area on which it has not yet
proposed wind turbines. (Tr. 106, 182 (Supp. 62, 72)) Nevertheless, OPSB refused to
incorporate enforceable noise standards or necessary setbacks into the Certificate.
5. Certificate Issuance Petition for Rehearing, and Appeal:
The OPSB issued its Opinion and Order granting the Certificate on March 22, 2010. The
Certificate approved the Project based on the minimum statutory setbacks as recommended by
BW and the Staff. (Certif. 35 (Appx. 88)) In its Opinion and Order, the Board denied the UNU
Intervenors' request for reconsideration of the ALJ's rulings concerning the admissibility of Dr.
16
Nissenbaum's affidavit and deposition and Mr. Shears' testimony and sponsored application
exhibits. (Certif. 10 (Appx. 63))
Pursuant to R.C. 4903.10, the UNU Intervenors filed a petition for rehearing with OPSB
on Apri120, 2010. (ICN 147) Following OPSB's denial of their petition for rehearing on July
15, 2010 (ICN 166), the UNU Intervenors brought this appeal on September 3, 2010.
ARGUMENT
Standards for Certification Of Major Utility Facilities
No person may construct a major utility facility without first obtaining a Certificate for
the facility. R.C. 4906.04. The Facility is a major utility facility insofar as it has the capacity to
generate in excess of 50 MW of electricity. App. 2; R.C. 4906.01.
In order for the Board to issue a Certificate for a major utility facility, OPSB must hold a
hearing on the application. R.C. 4906.07. The Board is required to accept written or oral
testimony from any person at the public hearing, but the right to call and examine witnesses is
reserved to the parties, including intervenors. R.C. 4906.08(C).
The Board must render a decision on the record either granting or denying the Certificate
based on the application as filed, or granting it on such terms, conditions, or modifications as the
Board considers appropriate. R.C. 4906.10(A). The Board shall not grant a Certificate unless it
finds and determines the following, inter alia:
(a) The nature of the probable enviromnental impact;
(b) That the facility represents the minimum adverse environmental impact,
considering the state of available technology and the nature and economics of the various
alternatives, and other pertinent considerations; and
(c) That the facility will serve the public interest, convenience and necessity.
R.C. 4906.10(A)(2), (3), (6).
17
BW bears the burden of proof that it is entitled to the Certificate. BW Initial Brief, ICN
136, at 3. See also Canton Storage & Transfer Co., Inc. v. PUCO (1995), 72 Ohio St.3d 1, 5.
Standard Of Review:
R.C. 4906.12 provides that OPSB orders are subject to the procedures provided by certain
statutes governing Public Utilities Commission proceedings, including R.C. 4903.13. R.C.
4903.13 provides that this Court will reverse, vacate, or modify any OPSB order that is unlawful
or unreasonable. A factual issue in an OPSB decision will be reversed if the appellant sustains
its burden to demonstrate that the Board's factual determination was manifestly against the
weight of the evidence and was so clearly unsupported by the record as to show
misapprehension, mistake, or willful disregard of duty. Chester Tp. v. Power Siting Comm.
(1977), 49 Ohio St.2d 231, 361 N.E.2d 436. Furthermore, an order must show, "in sufficient
detail, the facts in the record upon which the order is based, and the reasoning followed * * * in
reaching its conclusion." Indus. Energy Users-Ohio v. Pub. Util. Comm., 117 Ohio St.3d 486,
2008-Ohio-990, 885 N.E.2d 195, ¶30 (referring to its review of a PUCO order under the same
statute). A "legion of cases" establishes that the Board "abuses its discretion if it renders an
opinion on an issue without record support." Id.
First Prouosition of Law:
A Wind Energy Utility Authorized By A Power Sitine Board Certificate That Lacks TheEnforceable Noise Limits Necessary To Prevent High Noise Levels From Causing Serious
Discomfort Annoyance, And Sleep Deprivation Amon2 The Utility's Neighbors Does NotRepresent The Minimum Adverse Impact As Required By R.C. 4906.10(A)(3).
To prevent BW's project from seriously damaging the community, the Certificate must
limit the amount of noise the turbines are allowed to impose on their neighbors. While BW's
project poses many major problems for the well-being of the community, no issue is more
critical than this one.
18
To protect the public from environmental harm, R.C. 4906.10(A) provides:
The board shall not grant a certificate for the construction, operation, andmaintenance of a major utility facility ... unless it finds and determines all of
the following:*+^^
(3) That the facility represents the minimum adverse environmental impact,considering the state of available technology and the nature and economics ofthe various alternatives, and other pertinent considerations.
To evaluate the environmental impact from wind project noise, Ohio Adm.Code 4906-17-08
requires an application for an OPSB certificate to provide the following information about the
anticipated noise levels from the wind turbines:
(2) Noise. The applicant shall:*^+*
(b) For each turbine, evaluate and describe the operational noise levels expected
at the property boundary closest to that turbine, under both day and nighttimeconditions. Evaluate and describe the cumulative operational noise levels for
the wind facility at each property boundary for each property adjacent to the
project area, under both day and nighttime operations. The applicant shall usegenerally accepted computer modeling software (developed for wind turbinenoise measurement) or similar wind turbine noise methodology, includingconsideration of broadband, tonal, and low-frequency noise levels.
Emphasis added. When OPSB issued its decision in its rulemaking proceeding for wind
turbines, the Board emphasized that "[i]t is imperative that the noise level be evaluated at the
boundary of the project site." Matter ofAdoption of Ohio Adm.Code Chapter 4906-17, OPSB
Case No. 08-1024-EL-ORD at ¶¶ 120-21. (Supp. 640-41)) Otherwise, turbine noise would
destroy the neighbors' ability to use, enjoy, and develop their yards, fields, and undeveloped
acreage. Ohio Adm.Code 4906-17-08(A)(2)(b) effectuates OPSB's intent to protect the
neighbors' entire properties by requiring wind developers to reveal the operational noise levels
expected at the boundary of each adjacent property.
OPSB failed to satisfy its obligation under R.C. 4906.10 to issue a certificate only to a
wind project that "represents the minimum adverse environmental impact" with respect to
19
turbine noise. Without a noise standard in the Certificate, there is no limit to the amount of noise
the turbines may emit across property lines or into neighbors' homes. Despite the serious noise
impact of BW's project, Condition 6 of the Certificate provides only the following inadequate
requirement for noise control: "Buckeye shall operate the facility within the noise parameters as
set forth in its noise study and presented in its application." (Certif. 83, ¶ 6 (Appx. 136)) These
"noise parameters" are contained in pages 87-102 and Exhibit K of BW's Application (ICN 5)
(hereinafter collectively referred to as the "noise study").
Since Condition 6 simply incorporates the noise study by reference, the condition is only
as effective for noise control as the study itself. But the noise study is so vague as to be
meaningless for noise control. OPSB's failure to include enforceable noise standards in the
Certificate is inexcusable -- the acoustic engineering profession has several widely accepted
standards that OPSB could have incorporated to protect BW's neighbors' properties and homes.
Rather than including meaningful noise standards, OPSB merely rubber-stamped the application.
The following sections describe the standards the Board should have included in the
Certificate. Without these noise limits, the project does not represent the minimum adverse
enviromnental impact as required by R.C. 4906.10(A)(3).
A. To Prevent Discomfort , Annoyance, And Sleep Deprivation At Day And
Night From Inherently Intrusive Wind Turbine Noise, The Certificate
Should Not Allow BW To Increase The Noise Levels Imposed OnNonnarticigating Neighbors By More Than Five dBA Above TheBackground Sound Level.
If a new noise is no louder than the previously existing sound level in a community, the
background sound may mask or obscure the new noise. (ICN 2, Applic. 90 (Supp. 5)) BW's
application concedes that the commonly accepted practice for preventing unacceptable impacts
from a new noise source on neighbors is to limit the noise increase to five A-weighted decibels
("dBA") above the measured ambient background sound level, calling it a "reasonable design
20
target "(ICN 2, Applic. 25 (Supp. 4); ICN 5, Applic. Exh. K at 22 (Supp. 16)) Acoustical
engineers regard a five dBA or lower increase from a new noise source as an acceptable impact,
because sound increases below this threshold usually are unnoticed to tolerable. (UNU Exh.
31A, Ans. 25 (Supp. 561-62))
The goals for limiting new noise to five decibels over background are to prevent
community noise complaints and nighttime sleep disturbance. (Id. at Ans. 34 (Supp. 563)) This
five dBA increase is the point at which 10% of the exposed population will be annoyed. (Id. at
Ans. 35 (Supp. 563-64)) That is, the five dBA threshold does not identify the point at which the
noise becomes audible; it is the point at which the noise becomes objectionable to a significant
number of people. This limit is critical to protect a community from intolerable noise impacts.
The five dB over background standard is not new. It was developed in studies of noise
sources, such as highways, rail, airplane, and industrial noise sources common in suburban and
urban residential communities. (Id. at Ans. 34 (Supp. 564)) The purpose of these studies was to
establish the relationship between annoyance and sound level. (Id.) The studies confirmed that,
as the background sound levels increased, the tolerance for new nighttime noise also increased.
(Id.) David Hessler conceded that this design approach is "very common" for wind power
projects as well as for other types of noise-producing projects. (Tr. 826 (Supp. 175)) As BW
admits, this approach "is a sensible balance between the interests of all parties" that allows viable
wind projects to be sited while avoiding noise "so loud that it leads to legitimate disturbance at a
large number of homes." (ICN 2, Applic. 93 (Supp. 7))
BW discloses that other states such as New York limit the noise from new wind projects
to an increase of five dBA over background level, a fact that Mr. James confirmed. (Id.; UNU
Exh. 31A, Ans. 26 (Supp. 562)) Local communities in the United States also use this standard as
the basis for their limitations on wind turbine noise. (Id.) A +5 dBA standard is used in
21
standards for the United Kingdom, Ireland, Netherlands, New Zealand, France (+3 dBA at night
and +5 dBA daytime). (Id.) While some jurisdictions use a more lenient standard, their laxity
has led to widespread discomfort, property damage, and sleep deprivation.
A noise increase above five dBA is intrusive, and causes sleep disturbance if occurring at
night. (Id. at Ans. 25) The operation of such a noise source night after night leads to sleep
deprivation. Id. Chronic sleep disturbance is frequently associated with night time noise levels
more than five dB above the natural background sound levels of a community. (Id.) This is
especially true when the new noise source emits sounds that are dissimilar to the host
community's natural nighttime sounds or when it produces fluctuating sound levels. (Id.) This
effect would not be considered surprising for anyone who has experienced the sleep disturbing
effects of sounds like a dripping water faucet near a bedroom. (Id.)
Wind turbine noise is dissimilar to the host community's natural nighttime sounds and is
more noticeable due to its fluctuation. (Id.) Although sound increases up to five dBA are
tolerable from most noise sources, noise increases attributable to wind turbines are more
noticeable. BW admits that, while a five dBA increase is the level at which a "steady, bland
sound" generally "begins to be perceptible to most people," wind turbine noise is perceived
below five decibels above background due to its amplitude modulation. (ICN 2, Applic. 92-93
(Supp. 6-7)) Amplitude modulation is the rise and fall of noise levels, which wind turbine blades
create as a swishing sound in about one second intervals as the blades turn. (ICN 2, Applic. 92
(Supp. 6); ICN 5, Applic. Exh. K at 21 (Supp. 15)) Besides blade noise, unsettled air and gusty
winds increase the noise from the turbine rotors. (ICN 5, Applic. Exh. K at 28 (Supp. 18))
These characteristics make wind turbine noise more noticeable, and more annoying, as they "can
commonly be discerned at fairly large distances even though the actual sound level may be
relatively low." (Id.) For that reason, it is unfair to compare the decibel level of turbine noise
22
with sources of steady noise, such as refrigerators, busy offices, or conversational speech. And
even such steady noises may be difficult to sleep through, as BW witness Kenneth Mundt
admitted. (Tr. 481-82 (Supp. 123-24))
The conclusion of Mr. Hessler's report summarizes the importance of conservative
assumptions to predict noise levels, since "atmospheric conditions, temperature gradients and
wind shear gradients" will make turbine noise higher than predicted. (ICN 5, Applic. Exh. K at
33 (Supp. 19)) Thus, since noise increases will harm a community's quality of life even below
five dBA, BW's turbines must not be allowed to increase the noise by more than five dBA.
OPSB's opinion finds that BW's noise will be "intermittently" audible and "annoying, to
some, at times." (Certif. 64) Even though both Mr. Hessler and Mr. James agree that the
acoustic community uses five dBA above background as the standard for its projects, OPSB has
failed to follow that practice in its Certificate. BW and OPSB have enunciated no reason why a
wind project in Champaign County, Ohio should not comply with the same standard that is being
met by wind projects in the State of New York and other localities. The five dBA over
background standard is based on the noise increase that is objectionable to a significant number
of people. The Board's failure to prevent higher noise impacts will guarantee misery for
thousands of citizens. The Board should be directed to amend the Certificate to prohibit any
noise increase over five dBA to prevent unreasonable noise levels in this community.
B. To Avoid Discomfort , Annoyance , And Sleep Deprivation At Day And Night,
The Certificate Should Limit The Turbine Noise Imposed On
Nonparticipating Neighbors To A Ceiling of 35 dBA.
Turbine noise above 35 dBA causes unacceptable annoyance, discomfort, and sleep
disturbance. These problems not only involve sleep deprivation at night, but annoyance and
discomfort during daytime. For those reasons, Mr. James testified that sound levels should not
exceed 35 dBA. (Tr. 1487 (Supp. 215)) Based on their extensive experience with wind turbines,
23
Germany and the Netherlands use nighttime limits of 35 dBA and 30 dBA respectively for wind
turbine noise in rural communities. (UNU Exh. 31 A, Ans. 26 (Supp. 562)) Consequently, UNU
asked that the Certificate contain a 35 dBA noise limit at neighboring homes and property lines.
As explained above, accepted acoustic engineering practices for preventing bothersome
noise limit a new source of noise to an increase of five dBA over background. This equates to
the level at which 10% of the population will be annoyed by the noise. (Id. at Ans. 35 (Supp.
563-64)) For this project, a five dBA increase over Mr. James' and Mr. Hessler's background
sound calculations is 32 dBA and 34 dBA, respectively. Thus, at 35 dBA, the increase over
background reaches unacceptable levels. Nevertheless, OPSB refused to adopt any such limit.
There is substantial evidence that noise levels above 35 dBA produce adverse results.
Swedish researcher Ej a Pedersen performed a controlled study on the effects of wind turbine
noise on their neighbors. (UNU Exh. 47; Tr. 850 (Supp. 182)) The subjects of Ms. Pedersen's
study reported their annoyance at the "swishing, whistling, pulsating/throbbing, and resounding"
of the wind turbines. UNU Exh. 47 at 3466 (Supp. 600). Ms. Pedersen found that 6% of the
persons exposed to turbine noise of 35 dBA were highly annoyed and another 6% were rather
annoyed (a total of 12%). (Id. at 3465, Table V, and at 3468, Fig. 3) These percentages
continued to rise with increased turbine noise, with 20% and 8% (a total of 28%) being very
annoyed and rather annoyed, respectively, at noise levels of 37.5 to 40 dBA. (Id. at 3465,
TableV, and at 3468, Fig. 3) Ms. Pedersen found that turbine noise is significantly more
annoying than the same noise levels from aircraft, road traffic, and railways. (UNU Exh. 47 at
3468)
In another study, Ms. Pedersen determined that 12% of turbine neighbors exposed to 35
dBA are very or rather annoyed, resulting in sleep disturbance, tiredness, and negative emotions.
(UNU Exh. 48 at 484 (Supp. 609)) In the Pedersen studies, a combined total of 50% of the
24
persons exposed to noise over 40 dBA reported annoyance (22 of 45 people), and 24% of the
persons exposed to noise levels between 35 and 40 dBA reported annoyance (67 of 276 people).
(UNU Exh. 49 at 17 (Supp. 615))
While David Hessler acknowledged Ms. Pedersen as a respected acoustic expert, he
sought to minimize her findings by comparing the number of annoyed respondents with the
number of people in the entire study group. (Tr. 2349 (Supp. 278)) Since 214 out of the 341
persons in the study group were exposed to less than 35 dBA, including these people in his unfair
comparison skewed his discussion of the results. See the numbers of respondents to the study,
represented by "n" in Table V on page 3465 of UNU Exh. 47 (Supp. 599). The question before
OPSB was whether exposure to more than 35 dBA is harmful and thus merits a preventive limit.
The effect on persons exposed to lower noise is irrelevant. Here, a 35 dBA limit is necessary to
protect BW's neighbors who otherwise will be exposed to louder noise and who, as will be
explained below, number in the thousands.
Similar studies conducted in the European Union for existing wind turbine utilities show
that the absolute sound level where 10% of the population reports the noise as "annoying" is
approximately 10 dBA lower for wind turbines than it is for the other noise sources. (UNU Exh.
31A, Ans. 35 (Supp. 563-64)) A study by the University of Groningen and Goteborg University
found 10% of the population is "very annoyed" by, and 25% suffers sleep disturbance from,
wind turbine noise between 30 and 35 dBA. (Id.)
A literature review by the Minnesota Department of Health found that complaints about
wind turbines rise with increasing outside noise levels above 35 dBA. (UNU Exh. 49 at 25
(Supp. 616)) Without a 35 dBA limit, thousands of people will be exposed to objectionable BW
noise that will impair their lives and property. Accordingly, OPSB should require the noise
25
levels from BW's turbines to stay below 35 dBA at all times as measured at the property lines of
nonparticipating neighbors.
C. OPSB Erred By Failing To Include Any Limitation To Control dBC Noise,
The Most Harmful Component Of The Noise Spectrum Even Though TheFounder Of BW's Own Noise Consultine Company Has Demonstrated The
Necessity Of This Standard.
Ohio Adm.Code 4906-17-08(A)(2)(b) requires the applicant for a wind project to
evaluate the operational noise levels expected night and day at the boundary of each adjacent
property for "broadband, tonal, and low frequency noise levels." (Emphasis added.)
Low frequency sound travels further with less attenuation over distance than mid and
higher frequency sounds and penetrates walls of homes with less reduction in loudness. (UNU
Exh. 31A, Ans. 64 (Supp. 567)) The Minnesota Department of Health has found that low
frequency sounds are not effectively attenuated by walls and windows of most homes. (UNU
Exh. 49 at 9 (Supp. 613)) For example, the distant rumble of thunder readily penetrates a home's
walls, even though its high frequency component (the "cracking" sound) cannot be heard from
that distance. (Tr. 1374-76; UNU Exh. 31A, Ans. 64 (Supp. 567)) A similar effect is noticed
when amplified low frequencies (the bass component) of music from a car with "boom box"
radio make nearby vehicles shake. (Id.)
Low frequency noise is not masked by the sound of wind in leaves or against ground
level structures. (Id. at Ans. 65) For that reason, wind turbines can be heard as distinct sounds
even during high winds and storms. (Id.) This means the noise will be more likely to be both
heard and annoying and will be more of a problem inside a home than outside. (Id. at Ans. 66)
Measurements of low frequency noise by George Hessler have revealed that the low
frequency noise inside a home can be almost as loud as outside the home's walls. (UNU Exh. 69
at 183 (Supp. 635)) Both David Hessler and Rick James testified that the levels of low
26
frequency noise entering a neighbor's home from an outside source can even grow louder inside
the home due to resonance. (Tr. 805-806, 1376 (Supp. 173-74, 206)) See also, the same
conclusion by the Minnesota Department of Health in UNU Exh. 49 at 9 (Supp. 613).
Consequently, merely evaluating A-weighted noise is not a reliable assessment of
loudness for a machine emitting noise with a large low frequency component. (UNU Exh. 49 at
11 (Supp. 614)). By analogy, the throbbing bass from a°boom box" in an adjoining car can be
loud and annoying even though the rest of the music (the dBA, or high frequency component) is
inaudible. Accordingly, a noise limit for the high frequency component (dBA) of turbine noise
does little to protect the public from its low frequency (dBC) component. Low frequency noise
from wind turbines needs a separate limit. Unfortunately, OPSB did not set any limit on low
frequency noise during operation of the wind project.
George Hessler eloquently expressed the necessity for a C-weighted limit in a paper
advocating controls on industrial low frequency noise:
It is frustrating to continually witness great community distress and ill willtowards a plant owner that could have been avoided. Hopefully, greaterawareness of the problem and standardized limits for low-frequency noiseimmissions will minimize such problems.
(IJNU Exh. 69 at 185 (Supp. 637)) David Hessler agreed that this is a wise principle applicable
to any type of noise source. (Tr. 2337-38 (Supp. 276-77)) To avoid this "great community
distress and ill will," George Hessler recommended an absolute limit of 60 dBC for constantly
operating noise sources in very quiet communities. (UNU Exh. 69 at 180 (Supp. 632)) He also
urged that the 60 dBC limit be reduced " to not exceed 20 decibels above the A-weighted level"
to avoid objectionable proportions of C-weighted noise. (Id.)
David Hessler attempted to distinguish his father's conclusions by arguing that they
applied to combustion engines, not wind turbines. However, he admitted that ANSI Standard
B133.8, upon which he based his opinions about low frequency noise and on which George
27
Hessler based his paper, apply equally to wind turbines. (BW Exh. 26., Ans. 5 (Supp. 382));
UNU Exh. 69 at 180 (Supp. 632)) Moreover, the abstract for George Hessler's paper states that
this limit "should be applicable to most industrial sources of steady low-frequency noise in
addition to combustion turbines." (Id. at 179) George Hessler also noted:
It is believed that the proposed limits would also be valid for other steady andtonal sources of low-frequency noise, such as compressor stations, wind
turbines, diesel generators, and others.
(Id. at 180 (emphasis added)).
While BW's application states that low frequency noise is no longer a problem due to the
upwind blades now used in the industry (Applic. 99), wind turbines with upwind blades are still
causing problems with low frequency noise. Mr. James' recordings of sound at wind projects
using upwind blades have revealed considerable low frequency noise. (i JN U Exh. 31 A, Ans. 62
(Supp. 567)) The turbine test data of wind manufacturers are consistent with Mr. James'
measurements. (Id. at Ans. 62, Ans. 63)
David Hessler admitted that BW's wind turbines may cause low frequency noise levels to
reach as high as 60 decibels at the nearest homes. (Tr. 2323; BW Exh. 26, Ans. 5) George
Hessler has found that a new source of noise with a C-weighted level of 60 decibels "can sound
quite loud and threatening to residents accustomed to very quiet surroundings." (UNU Exh. 69
at 183 (Supp. 635)) The senior Hessler defined very quiet areas as those with an L90 under 40
dBA (UNU Exh. 69 at 180, Table 1), in contrast to the 27 or 29 dBA level of the BW project
area.
UNU asked OPSB to include in the Certificate the reasonable dBC limits advocated by
George Hessler to control harmful low frequency noise. These limits included an absolute limit
of 60 dBC and the following limit to prevent the dBC component from exceeding 20 decibels
above the A-weighted level:
28
The dBC operating immissions (as LCeq) for turbine noise at the receivingproperty line of a person whose land is not being occupied by turbines in thefacility shall not be more than 20 dB above the measured dBA (as LA90) pre-construction long-term background sound level + 5 dB.
David Hessler resisted this standard by arguing that the low frequency noise in the background
sound in some communities exceeds the 20 decibel differential even when the turbines are not
operating. (Tr. 2332-34 (Supp. 273-75)) However, the Kamperman/James treatise, co-authored
by Rick James, recommends a modification of George Hessler's formula to overcome that
objection. This paper recommends that "the dBC operating immission limit (as LCeq) at the
receiving property line should not be more than 20 dB above the measured dBA (as LA90) pre-
construction long-term background sound level + 5 dB." (UNU Exh. 32 at 15 (emphasis
added)). This formula limits only the dBC increases over background due to turbine noise.
Otherwise, i TN [ J's requested limits are identical to those that George Hessler advocated, and the
Court should direct OPSB to include these limits in the Certificate.
D. To Effectivel Control Noise , The Certificate Must Have Enforceable Noise
Limits That Provide Clarity On The Standards To Be Met.
The Certificate not only lacks the widely accepted acoustic limits described above, it has
no enforceable limit of any kind. It does not even contain the five dBA above background
standard acknowledged as appropriate by BW's own consultant.
Condition 6 of the Certificate provides no enforceable limit, but merely requires "[t]hat
the Applicant operate the facility within the noise parameters as set forth in its noise study and
presented in its application." (Certif. 83, ¶ 6 (Appx. 136)) The language of Condition 6 contains
no decibel limit that BW must meet. According to OPSB's noise witness, Raymond Strom, the
"parameters" to which Condition 6 refers are the noise contours on the noise plots included in
Exhibit K of the Application (ICN 5). (Tr. 1901 (Supp. 244)) However, Mr. Strom testified that
a turbine's noise may be louder than these contours without violating Condition 6. (Tr. 1902
29
(Supp. 245)) Mr. Strom would consider the project to be in noncompliance only "if under the
normal course of operation over extended periods of time [it is] found to be operating outside
these parameters." (Id.) He could not identify any percentage of the time that a turbine would
have to comply with the noise contours. (Tr. 1903-1904 (Supp. 246-47)) So, according to
OPSB's noise representative, the noise study as incorporated into Condition 6 does not limit how
loud the turbine can be or how often it can be that loud. Instead, Mr. Strom thought that OPSB
could make these decisions while responding to noise complaints by outraged neighbors. (Tr.
1902-1904) Certainly, if OPSB ever attempts to enforce Condition 6, BW will argue that it is
vague and subject to a multitude of interpretations.
Moreover, the noise study itself states that "there are likely to be times" when weather
conditions such as temperature inversions and wind stratification make the noise louder than
portrayed in the Exhibit K noise plots. (ICN 5, Applic., Exh. K at 28 (Supp. 18)) During wind
stratification, high wind speeds exist at turbine hub height even though ground conditions are
calm. (Tr. 829-30 (Supp. 176-77)) While the application characterizes wind stratification as
"unusual" (id.), Mr. Hessler emphatically testified that there is "[n]o question that happens :' (Tr.
829) During this condition, no ground level wind noise is present to mask the sound of the wind
turbines, which can be operating at or close to full capacity. (UNU Exh. 32 at 16-17 (Supp. 571-
72)) This condition is "frequent" and is the major cause of complaints from neighbors of wind
projects. (Id. at 16) Elsewhere, the application states that "somewhat higher sound levels from
the Project may well occur from time to time." (ICN 5, Applic. Exh. K at 33 (Supp. 19))
Since the Certificate requires BW only to "operate the facility within the noise
parameters as set forth in its noise study and presented in its application" (emphasis added), BW
will undoubtedly argue during operation that it is allowed to exceed the noise levels in the
Exhibit K plots whenever these wind stratifications occur and under the unspecified conditions
30
when the "somewhat higher sound levels from the Project" will occur. Thus, the Certificate
leaves the neighbors entirely unprotected from noise at times when they most need protection.
The Certificate's lack of an enforceable noise limit is even more threatening to the
neighbors in light of the fact that the noise contours in the noise study are based on the wrong
turbine model. Mr. Hessler acknowledged that his noise model must be based on the noisiest
model under consideration and that it underestimates the turbines' noise, is invalid, and must be
rerun if BW installs a turbine model that is noisier than the turbine model he studied. (Tr. 767,
2365, 2369 (Supp. 160, 282, 283)) By failing to do so, his model underestimates the project's
noise by two to three decibels if the Nordex N 100 is used. (Tr. 773 (Supp. 165))
Notwithstanding that fact, the Board's certificate fails to prohibit BW from using the Nordex
N100, even though its noise impacts have not been modeled.
Mr. Hessler also admitted that his noise predictions for the BW project may be off by as
much as five decibels due to the margin of error in his model. (Tr. 760-61 (Supp. 155-576))
Adding that variance to the extra two or three decibels from the Nordex 100, the noise from
BW's turbines could be seven to eight decibels higher than the noise contours, i.e., more than 12
to 13 dBA over background. Because the noise contours incorporated into the Certificate are
unenforceable, they provide OPSB with no means to prevent this problem.
Without enforceable standards, BW's noise will intrude on the neighbors' attempts to use
their yards, fields, and undeveloped acreage for outdoor social events and other activities. Julia
Johnson, the McConnells, and other UNU members will be unable to comfortably engage in the
numerous activities they currently enjoy on their land. They will be unable to build new homes
on land affected by the noise for themselves, their children, or anyone else. This land will be
unmarketable if they wish to sell it.
31
To have any meaning, the Certificate's conditions must incorporate objective standards.
Standards are necessary to protect more than 4000 citizens who otherwise will be exposed to
loud turbine noise. In addition, objective standards can protect BW by distinguishing legitimate
noise complaints from meritless complaints. If the Certificate contains no specific numeric
standards, there will be no objective means to determine whether the noise is too high. The
UNU Intervenors request the Court to remand the Certificate to OPSB with instructions to
incorporate the standards described above. If the Court chooses not to specify the noise limits
that must be incorporated, at the least the Court should direct OPSB to incorporate limits that are
objective, enforceable, and consistent with the record evidence.
Second Proposition of Law:
Utilitv'sA Power Siting Board Certificate Issued Without Requiring A Wind Energy
Application To Include Modeling Or Similar Data Identifying The Level Of Low
Frequency Noise At Neighboring Property Lines Violates Ohio Adm.Code 4906-17-
08A 2 b.
Ohio Adm.Code 4906-17-08(A)(2)(b) requires BW's application to contain computer
modeling data or a similar methodology to describe the noise levels for each turbine expected at
the property lines of adjacent landowners:
(2) Noise. The applicant shall:
(b) For each turbine, evaluate and describe the operational noise levels expectedat the property boundary closest to that turbine, under both day and nighttimeconditions. Evaluate and describe the cumulative operational noise levels forthe wind facility at each property boundary for each property adjacent to theproject area, under both day and nighttime operations. The applicant shall usegenerally accepted computer modeling software (developed for wind turbinenoise measurement) or similar wind turbine noise methodology, including
consideration of broadband, tonal, and low-frequency noise levels.
Emphasis added. BW's noise study is bereft of any data from modeling or similar noise
methodology for the low frequency (dBC) noise expected from the turbines at neighboring
32
property lines. The Court should direct OPSB to return BW's application with instructions to
obtain this data so the Board can properly evaluate the project's noise.
Third Proposition of Law:
A Wind Energy Utility Authorized By A Power Siting Board Certificate That Lacks TheSetbacks Necessary To Prevent High Noise Levels From Causing Discomfort, Anno a nce,
And Sleep Deprivation Among The Utility's Neighbors Does Not Represent The Minimum
Adverse Impact As Required Bv R.C. 4906.10(A)(3).
Contrary to R.C. 4906.10(A)(3), the BW project as approved does not "represent[] the
minimum adverse environmental impact, considering the state of available technology and the
nature and economics of the various alternatives, and other pertinent considerations." This
approval of a project with unacceptable noise impacts is not only contrary to law, but
unnecessary. BW has secured "additional lease positions" and "additional land positions" in the
project area on which it has not yet proposed wind turbines. (Tr. 106, 182 (Supp. 62, 72)) Thus,
BW could substitute these additional sites for the project's turbine sites that are too close to
homes and property lines.
Instead, BW's turbines will encircle entire subdivisions and clusters of homes, and many
of them will experience noise increases more than five dBA above background as well as noise
levels above 35 dBA. Nighttime noise levels will exceed the five dBA differential above BW's
29 dBA nighttime background figure, i.e., 34 dBA, at "numerous residences." (ICN 2, Applic. at
98) Mr. Hessler estimated that his 34 dBA contour lines are "a little under a thousand meters"
from the proposed turbines. (Tr. 855-56 (Supp. 185-86)) Thus, all of the homes inside the
contours for 34 dBA on Plots 2A, 2B, 2C and 2D of Application Exhibit K will be exposed to
more than a five dBA increase in noise. BW admits that 1004 homes are located within 1000
meters (one kilometer or 0.62 mile) from a proposed BW turbine site as the wind project is
currently configured. (i.JNi.J Exh. 43 at 5, Int. 12 (Supp. 577)) Assuming an average of four
33
persons live in each home, about 4016 people will be exposed to more than 34 dBA of turbine
noise at night while they are trying to sleep. That is, more than 4000 people will be exposed to
noise increases exceeding five dBA over background, a standard that even BW has admitted is
appropriate to prevent undue community harm. Even Mr. Hessler admitted that between 5% and
40% of these persons may be highly annoyed by BW's noise. (Tr. 851-52 (Supp. 183-84))
Compounding this noise level, BW's use of the noisier Nordex 100 turbine would
increase the noise levels by another two to three dBA. Mr. Hessler also admitted that his noise
predictions for the BW project may be off by as much as five decibels due to the margin of error
in his model. (Tr. 760-61 (155-56)) These potential increases of noise could expose more than
4000 people to noise increases exceeding 12 to 13 dBA over background. The Certificate
contains no enforceable limits to prevent this from occurring.
Consequently, BW's project as approved does not "represent[] the minimum adverse
environmental impact" under R.C. 4906.10(A)(3). The UNU Intervenors request that the Court
reverse OPSB's issuance of the Certificate and remand with directions to institute suitable
setbacks between turbines and any nonparticipant's property line. OPSB should be instructed to
adopt setbacks preventing the turbines from imposing noise on neighbors in excess of the noise
levels in the standards described above.
Fourth Proposition Of Law:
A Certificate Issued By The Power Siting Board For A Wind Energy Utility Must Require
The Setbacks Between Wind Turbines And Neighboring Residences And PropertiesNecessary To Ensure The Health Safety , And Well-Being Of the Utility's Neighbors InCompliance With The Board's Certification Criteria In R.C. 4906.10(A)(6).
As a condition for issuing a certificate, the Board has the statutory duty to determine that
it will serve the public interest, convenience, and necessity. R.C. 4906.10(A)(6). Public health,
safety, and welfare should be a fundamental consideration in that determination. Yet the Board
34
resolutely refused to consider setbacks for the Project greater than the minimum required by law,
despite its inexperience with industrial-scale wind energy facilities, its Staff s avowal that it
considered the Project's "worst-case impacts" in its recommendations to the Board, and a
substantial body of evidence showing that those minimum setbacks are woefully inadequate to
protect the health, safety, and welfare of individuals in the surrounding area.
As explained above, the Board steadfastly disregarded wind turbine manufacturers'
recommendations for setbacks far greater than the Board's minimum setbacks. The Staff
dismissed the Nordex recommendations by suggesting they assume that the developer has not
performed a site-specific noise or shadow flicker study. (Staff Brief, ICN 138 at 24) However,
the Nordex guidance does not condition its recommendations in that fashion. (UNU Exh. 12)
Furthermore, the Board approved the locations of 56 turbines in the Project without first
determining whether the setbacks were adequate to protect neighbors from injury, death, or
property damage due to thrown turbine blades. Turbine blades can be thrown as a result of
design defects, poor maintenance, control system malfunction, lightning strike, or human error.
(Certif. 41-42 (Appx. 94-95)) Yet at the time of the hearing, the Staff did not have an adequate
means of calculating the maximum distance for blade throw from a 100-meter tower. (Tr. 1987
(Supp. 254)) Instead, the Staff simply accepted the representation of BW's consultant that the
maximum blade throw distance for an 80-meter tower with an 80-meter rotor was
"approximately 500 feet" (Tr. 1983, 1986 (Supp. 252-53)), despite acknowledging that a blade
from a larger turbine, such as those proposed for the Project, could be thrown further. (Tr. 1983)
Rather than requiring proof that the public will be adequately protected from thrown blades, the
Board approved the siting of 56 turbines and required BW, after the fact, to provide Staff with a
calculation of the "maximum potential distance of a blade shear event "(Certif. 90 (Appx. 143))
35
The same is true with respect to potential hazards from ice shedding. Under certain
weather conditions, accumulated ice on turbine blades can shed and be thrown from the turbine.
(Certif. 43 (Appx. 96)) Adequate setbacks are important to protect people and property from
being struck by flying ice. In its analysis of this issue, OPSB Staff relied solely on
representations in the Application that "ice typically lands within 300 feet and that the risk is
negligible beyond 722 feet." (Tr. 1990 (Supp. 255)) Staff was unaware of guidance from GE
Energy (UNU Exh. 13 (Supp. 536)) recommending a "safe distance" of 984 feet for ice throw,
based on a formula of 1.5 x (hub height + rotor diameter). (Tr. 1992-93 (Supp. 256-57)) Yet
despite admitting that he was unfamiliar with the GE guidance, Andrew Conway of the Staff
dismissed it, explaining that "I understand that this formula is to be used where there is heavy
icing conditions and heavy icing areas, and I'm not aware that Ohio is a heavy icing area." (Id.)
Nowhere in the GE guidance, however, does it state that the "safe distance" formula is limited to
"heavy icing areas." (UNU Exh. 13 (Supp. 536)) Mr. Conway also stated that he believed that
BW would not operate the turbines when there is ice on the blades (Tr. 1993 (Supp. 257)), but
the Certificate contains no such limitation.
The Project setbacks are also flawed to the extent that they are measured with reference
to nearby residences instead of property lines. Neighbors should not reasonably be expected to
hide in their houses to protect themselves when turbines are operating. The Project setbacks
must be adequate to protect neighbors from the hazards of thrown blades and ice and the effects
of wind turbine noise and shadow flicker anywhere on their property. Failure to do so poses an
unacceptable threat to the life and safety of neighbors when they are outdoors.
Of equal significance is the fact that the use of setback distances measured from
neighboring residences, as opposed to neighboring property lines, will significantly impair the
ability of neighboring landowners to utilize their property to its highest and best use.
36
Development rights can be impaired significantly in the absence of adequate setbacks to mitigate
turbine effects such as noise, shadow flicker, and ice throw. (UNU Exh. 19A at 10 (Supp. 552))
Although R.C. 4906.20(B)(2) and Ohio Adm.Code 4906-17-08(C)(1) prescribe minimum
setbacks from residences on adjacent property, such setbacks do not mitigate the adverse effects
of the turbine on the portion of the property between the residence and the turbine. (Id.) This
can render otherwise developable land unsuitable for development due to the encroachment of
these harmful turbine impacts across the neighboring property line. (Id.)
This effect is illustrated on maps marked UNU Exhibits 20 and 21. Exhibit 20 is a map
that illustrates the potential effect of residenoe-based setbacks for each of the proposed BW
turbines in Union Township. (Supp. 558) It shows two alternative setbacks from neighboring
residential structures-the 914-foot minimum setback referenced in the Application, and the
1,640-foot setback recommended by turbine manufacturer Nordex in its micro-siting guidance.
(UNU Exhs. 12, 20-21 (Supp. 535, 558-59) Yellow outlines indicate boundaries of
nonparticipating landowners. In a number of instances, one or both of the setback zones extend
onto non-participating properties. (UNU Exh. 19A at 11 (Supp. 553))
Exhibit 21 is a specific case study showing how a nonparticipating adjacent property-in
this case, the property of Julia Johnson-can be affected when setback distances are allowed to
encroach across property lines. (Id.; UNU Exh. 1A at 11) Ms. Johnson's property is adjacent to
the Urbana Country Club golf course, and she is aware that there is interest in building homes on
that property. (Id. at 13) As shown on Exhibit 21 (Supp. 559), nine acres of her property are
within the 914-foot setbacks for proposed turbines 48 and 49. (UNU Exh. 19A at 12) A 1,640
foot setback would encroach upon about 70 acres of Ms. Johnson's property. The latter scenario
would impair the future development potential of fully 33 percent of the total 214 acres. (Id.)
37
Where the turbine manufacturers themselves have issued safety recommendations calling
for setbacks greater than the minimums required by Ohio law, it should be abundantly clear that
Ohio's minimum setbacks are inadequate. The Board, in its Opinion, does not specify why
turbine manufacturers' recommended setbacks should be disregarded, but merely notes BW's
assertion that the General Assembly has "squarely addressed and rejected" the UNU Intervenors'
concerns. (Certif. 36 (Appx. 89))
However, the minimum setbacks in H.B. 562 are just that-minimums. As the OPSB
itself stated when it promulgated Ohio Adm.Code Chapter 4906-17, the Board has an
independent statutory obligation to ensure the protection of public health, safety, and welfare on
a case-by-case basis. Matter ofAdoption of Ohio Adm.Code Chapter 4906-17, OPSB Case No.
08-1024-EL-ORD at 48 (Supp. 641). Given the apparent lack of any health-based or scientific
justification for the minimum setback from residences, OPSB may not default to the minimum
setback formula simply because it is in H.B. 562 and the Board's rules.
The Certificate concludes summarily that the minimum setbacks are adequate and should
satisfy the UNU Intervenors' safety concerns (Certif. 40 (Appx. 93)), but does not specify any
evidentiary basis for that conclusion other than to suggest (incorrectly) that the General
Assembly had "addressed and rejected" those concerns. (Certif. 36 (Appx. 89)) The Board's
vague finding concerning setbacks is manifestly against the weight of the evidence and shows
misapprehension, mistake, or willful disregard of the Board's duties under R.C. 4906(A).
Furthermore, the Board abused its discretion by providing inadequate detail concerning the
factual basis of the Board's findings. Indus. Energy Users-Ohio, 117 Ohio St.3d at 486. In light
of the overwhelming evidence that the H.B. 562 minimum setbacks are inadequate to protect
public health, safety, and welfare in this case, the Board has a duty to establish greater setbacks
in accordance with the evidence.
38
Fifth Proposition of Law:
The Power Siting Board May Not Base Its Issuance Of A Certificate On Expert Opinions
From A Lay Witness Concernin2 Information Not Within The Witness' Personal
Knowled¢e.
Although administrative agencies are not generally bound by the Ohio Rules of Evidence,
the discretion of an agency to consider hearsay cannot be exercised arbitrarily. Haley v. Ohio St.
Dental Bd., 7 Ohio App.3d 1(1982); Erdeljohn v. Ohio St. Bd. ofPharmacy, 38 Ohio Misc.2d 1
(Hamilton Cty. 1987).
The Board's Opinion states that it "has admitted the testimony of a witness, and the
related exhibits, where the witness demonstrates that the exhibits or studies were performed at
the applicant's request, under the witness' direct or indirect supervision, and that the officer is
sufficiently knowledgeable about the information in the exhibit or study to offer testimony."
(Certif. 12 (Appx. 65)) As described by the Statement of Facts, however, Mr. Shears offered
testimony and sponsored exhibits that did not meet even this relaxed standard of admissibility.
He demonstrated his lack of knowledge of the fundamentals underlying the claims of B W's
technical consultants concerning pollution offsets and socioeconomic benefits. He was not
shown to be qualified to testify on the subjects of shadow flicker modeling, property appraisal,
real estate market principles, or the determination of what constitutes "appropriately conducted
real estate research." For the same reasons, he should not have been allowed to "sponsor" the
Application exhibits and studies addressing those topics.
The UNU Intervenors were prejudiced by the ALJ's and Board's admission of the above
evidence. The Board specifically relied on the Saratoga Associates report (ICN 7-8, Applic.
Exh. R) sponsored by Mr. Shears in reaching the erroneous conclusion that "similar projects in
other locations have not affected property values in those areas." (Certif. 37-40 (Appx. 90-93))
With the Staff's input, the Board also specifically relied on BW's shadow flicker analysis (ICN
39
5, Applic. Exh. L) sponsored by Mr. Shears in reaching the conclusion that the proposed turbine
locations were appropriate. (Tr. 45-47 (Supp. 39-41)) Despite the fact that this is the first case
in which the Staff has addressed shadow flicker from wind turbines, the Staff accepted BW's
shadow flicker modeling without verifying its claims or methodology through independent
means. (Tr. 2079-2080 (Supp. 259-260)) For these reasons, the ALJ and the Board erred in
allowing Mr. Shears' testimony and "sponsored" exhibits over UNU's objection.
Sixth Proposition of Law:
The Power Siting Board Abuses Its Discretion By Allowin¢ One Party To IntroduceEvidence Without Producing A Sponsorin2 Witness At The Hearing With Personal
Knowledge Of This Evidence, While Denying Other Parties Leave To Do The Same.
It was inequitable to allow Buckeye Wind to introduce volumes of unsupported hearsay,
while the intervenors were required to produce live witnesses. In her rulings on the admissibility
of Dr. Michael Nissenbaum's deposition transcript, expert report, and affidavit, the ALJ made it
abundantly clear that expert testimony would not be accepted unless the witnesses were
personally present at the hearing for purposes of cross-examination. (ICN 83 at 3 (Appx. 34);
Tr. 1633-34 (Supp. 220-21)) Moreover, the fact that Dr. Nissenbaum's affidavit was excluded
from the record of the evidentiary hearing further indicated that the ALJs did not intend to allow
testimony except from live witnesses, even if under oath. 5
Though it may be the Board's long-standing practice to allow the Applicant to sponsor
exhibits to the Application without the need for witnesses with knowledge thereof (Certif. 12),
such a practice has resulted in an arbitrary and prejudicial double standard with regard to the
admissibility of evidence in this case. It is highly prejudicial to all of the intervenors to allow
BW the opportunity to offer documentary evidence unsupported by a live witness with
5 The ALJ did admit the direct testimony, exhibits, and deposition transcript of Sandra McKewas evidence due to her unavailability as a result of an urgent medical condition. (Tr. 1163-64,
1634)40
knowledge, but to deny that same opportunity to the intervenors. This arbitrary double standard
constitutes an abuse of discretion on the part of the Board.
SeventhPronosition of Law:
A Power Siting Board Certificate That Allows The Applicant To Make Post-Certificate
Alterations Information Submissions And Other Changes To A Wind Energy Utility
Erroneously Relieves The Applicant Of Its Mandato ry Burden Of Proof To Demonstrate
Its Entitlement To The Certificate.
Although the Board issued a Certificate approving the Project, it also attempted belatedly
to plug evidentiary gaps in the record by requiring BW, after issuance of the Certificate, to
submit and obtain Staff approval of information about important aspects of the Project. For
example:
(i) Certificate Condition (8) requires BW to submit a variety of documents to OPSB
Staff for approval, including a transportation routing plan, an electrical system collection plan
showing the planned location of all lines and whether they will be overhead or underground, a
tree clearing plan, a fire protection and medical emergency plan, and a noise complaint
resolution procedure. (Certif. 84 (Appx. 137))
(ii) Condition 33 requires BW, prior to the preconstruction conference, to provide the
Staff with both the maximum potential distance for blade throw and the formula used to calculate
the distance. (Id. at 90 (Appx. 143))
(iii) Condition (40) requires BW to conduct a detailed fresnel zone study to determine if
Turbine 37 will interfere with microwave communications. (Tr. 91 (Appx. 144)) Based on that
study, BW is required to relocate or eliminate Turbine 37 "pursuant to staff review and
approval." (Id.)
41
(iv) Although the Board prohibited construction of Turbine 70, Condition (45) provides
that BW may alter the location of Turbine 70 and submit relevant data concerning the relocation
to the Staff for approval. (Id.)
(v) Condition (46) allows BW to propose an adjusted location for Turbine 57 so that it
complies with the Board's minimum setbacks. (Id.)
(vi) Most remarkably, Condition (49) allows BW, no later than sixty days prior to
construction, to designate which turbine model it intends to use. (Tr. 92 (appx. 145)) In fact,
BW is not even limited to one of the three models proposed in the Application and considered at
hearing. If BW wishes to use another model, it may do so if it provides the Staff with specified
information about the model and assures the Staff that "no additional negative impacts would be
introduced by the model selected" (Id.)
The UNU Intervenors object to all of these conditions because they defer consideration of
important Project information, siting considerations, and compliance/mitigation measures until
after the evidentiary hearing has concluded and the Certificate is issued.
The Board justifies these conditions on the basis of "long-standing policy" for the
purpose of demonstrating compliance with the requirements of other agencies and "other specific
particulars of construction after the certificate has been issued." (Certif. 81-82 (Appx. 134-35))
The Board further explains that the conditions require the Applicant to demonstrate compliance
with the Certificate and to have in place certain procedures, such as a complaint resolution
procedure, "without unduly delaying the certification process." (Tr. 82.) In addition, the Board
explains that the conditions "incorporate into the certificate ... the requirements of other federal
and state agencies.......
However, most of the conditions to which the i 1NU Intervenors object accomplish none
of these policy objectives. The purpose of several of the conditions (e.g., 45, 46) is to allow
42
turbines to be relocated after the Certificate is issued, based on information not presented at the
public information meeting, in the Application, or at the hearing. Other conditions (8, 33, 40,
and 49) call for post-certificate submission of important information that is relevant to key
issues-project design, blade throw, and impacts on telecommunications--that were debated at
length by the parties and witnesses at the evidentiary hearing. Condition 33 calls for blade throw
information that is essential to the establishment of adequately protective setbacks for the
Project. Condition 49 even defers consideration of the specific type of turbine to be used, and
leaves open the possibility that Buckeye Wind may use a turbine model that was not discussed in
the Application or considered at hearing. Understanding the characteristics of a specific turbine
model is essential to accurately predict noise emissions from the turbines. (Tr. 767 (Supp. 160))
Upon questioning by BW's counsel, Mr. Conway observed that the formulas for blade
shear and ice throw would be provided before the preconstruction conference, so there should be
"no fear that the turbines will be built if they don't meet these standards." (Tr. 1996 (Supp.
258)) This simply begs the question why Buckeye Wind did not produce that information by the
time of the evidentiary hearing, two months after the Staff s request. This information could also
have been provided by BW prior to the conclusion of the evidentiary hearing, but was not. It
matters little that the UNU Intervenors had "an opportunity ... to oppose the Staff's
recommended conditions or to propose additional conditions" (Certif. 82 (Appx. 135)), when the
information in question is uniquely in BW's possession. To allow BW to submit this
information for the Staff s consideration and approval after the evidentiary proceedings
erroneously relieved BW of its burden of proof on issues of Project impacts and design.
43
Eighth Proposition of Law:
A Power Siting Board Certificate That Allows The Applicant To Make Post-Certificate
Alterations , Information Submissions , And Other Changes To A Wind Energy UtilityErroneously Circumvents The Board's Certi£cation Criteria In R.C. 4906.10(A).
This deferred information is also relevant to the Board's evaluation of the certification
criteria of R.C. 4906.10(A), and should have been considered by the Board before a certificate is
issued in this case. The blade throw information called for in Condition 33, for example, is
essential to evaluating the adequacy of the minimum setbacks approved in the Certificate.
Similarly, as noted above, identification of the turbine model to be used for the Project is
essential in order adequately to model its noise impacts. For the Board to approve the Project,
but permit the later submission of information essential to the Board's evaluation, is the
administrative version of the adage, "shoot first, ask questions later." Without this information,
the Board could not satisfy its statutory obligation to evaluate the Project's environmental impact
and public interest, convenience, and necessity as required by R.C. 4906.10(A)(2), (3), and (6).
Ninth Proposition of Law:
A Power Sitine Board Certificate That Allows The Applicant To Make Post-CertificateAlterations Information Submissions And Other Changes To A Wind Energv Utility
Unlawfully Deprives The Appellants Of Their Statutory Rights Of Participation Under
R.C. 4906.08.
The Board suggests that the intervenors are not prejudiced by the post-Certificate
submission of relevant evidence because R.C. 4906.07 requires the Board to hold a new hearing
"where the amendment of a certificate involves any material increase in any environmental
impact or substantial change in the location of all or a portion of the facility." (Certif. 82) The
UNU Intervenors agree that, with regard to any relocation of turbines or change in turbine
model, BW should be required to file an application for a Certificate amendment and a hearing
should be held on that application. If that is the case, however, there is no need for Conditions
45, 46, or 49 in the Certificate-BW would be free to file an application for amendment
44
whenever it deems one is needed. Ohio Adm.Code 4906-5-10. Instead, the presence of those
Conditions in the Certificate suggests that the Staff is empowered to authorize changes to the
Project without the need for an amendment application. In fact, nowhere do any of the
Conditions in question specifically require amendment of the Certificate.
Furthermore, because of the subjectivity of some of the Conditions in question, there is
no assurance that the Board or Staff would in fact require amendment of the Certificate if aspects
of the Project are changed. For example, Condition 49 allows BW to employ turbine models that
were not addressed in the Application or at the hearing, if BW assures the Staff that "no
additional negative impacts would be introduced by the model selected." (Certif 92 (Appx. 145))
If the Staff agrees with BW's assurances, then the UN [.J Intervenors will be deprived of further
examination and deliberation concerning information that is central to the impacts of the facility
and the protectiveness of the Certificate conditions. Similarly, Condition 33-requiring
submission of data concerning maximum blade throw distance-makes no provision for the Staff
to require amendment of the Certificate if that data indicates that the OPSB's minimum setbacks
are inadequate to protect the public. (Certif. 90 (Appx. 143))
Intervenors, as parties to this certification proceeding, have the statutory right to call and
examine witnesses at the hearing. R.C. 4906.08. The Conditions in question unlawfully
circumvent this right by depriving the Intervenors of involvement in deliberations concerning
information relevant to the environmental, health, and safety effects of the Project-information
which, as discussed above, is relevant to the Board's certification criteria in R.C. 4906.10(A).
45
Tenth Proposition of Law:
A Power Siting Board Certificate That Allows The Applicant To Make Post-Certificate
Alterations , Information Submissions , And Other Changes To A Wind Energy Utility
Without A Hearing Deprives The Appellants Of Procedural Due Process.
If the Board can lawfully delegate to its Staff the consideration of relevant evidence after
the completion of the certification proceedings, this calls into question the purpose and the
fundamental fairness of the three-week hearing in which all of the intervenors participated at
considerable cost and effort. Both the Fourteenth Amendment of the Ohio State Constitution and
Section 16, Article I of the Ohio Constitution require that administrative proceedings comport
with due process. Mathews v. Eldridge (1976), 424 U.S. 319; LTVSteel Co. v. Indus. Comm'n
(2000), 140 Ohio App.3d 680; Egbert v. Ohio Dep't ofAgriculture (2008), 2008-Ohio-5309. At
its core, "due process insists upon fundamental fairness, and the requirement to conduct a
hearing implies that a fair hearing must occur." Lassiter v. Dep't of Social Serv. (1981), 452
U.S. 18, 24; Clayman v. State Med. Bd. (1999), 133 Ohio App.3d 122, 127, citing State ex rel.
Ormet v. Ind. Comm'n (1990), 54 Ohio St.3d 102, 104.
In Seitz v. All Creatures Animal Hosp. (Nov. 15, 1985), Ashtabula App. No. 1192, 1985
WL 3679, unreported, the court found that the Ohio Bureau of Employment Services violated an
applicant's constitutional right to a fair hearing, as required by procedural due process, where the
referee, five days after the conclusion of the evidentiary hearing, considered several statements
against the applicant's interest. The court noted that the appellant had no notice or knowledge
that the statements existed until she requested a copy of the record for her appeal. Id. at *2. She
had no opportunity to confront or cross-examine the witnesses who made statements against her,
nor did she have the opportunity to present evidence on her own behalf. Id.
The case at bar presents similar unfair circumstances. The OPSB, after the evidentiary
hearing, delegated to its Staff the task of reviewing additional relevant evidence relating to the
46
Project. The Conditions in the Certificate afford the UNl J Intervenors no right to notice when
the Staff receives the additional evidence from BW. Furthermore, unless BW applies for an
amendment to the Certificate, the UNU Intervenors will presumably have no right to cross-
examine the source of the information submitted by BW pursuant to the Conditions, or to present
any further evidence on their own behalf.
Both the U.S. Supreme Court and this Court apply the test in Mathews v. Eldridge as the
basis for evaluating due process in administrative cases. LTV Steel, 140 App.3d at 689-690;
Egbert at ¶33. That test requires the court to weigh three factors to determine the constitutional
adequacy of an administrative proceeding: (1) the private interest at stake; (2) the risk of
erroneous deprivation of that interest and the probable value of additional procedural safeguards;
and (3) the government's interest, including the function involved and the fiscal and
administrative burden that the additional or substitute proceedings would entail. Id.
In this case, the UNU Intervenors have an interest in protecting themselves (or, in the
case of UNU, its members) from Project impacts that would adversely affect their health and
welfare and the value and enjoyment of their property. The risk of erroneous deprivation of that
interest is considerable, given that the Conditions in question allow for post-hearing
consideration of information relevant to the protectiveness of setbacks and the adequacy of noise
modeling for the Project, among other things. Requiring BW to produce that information in the
evidentiary hearing, consistent with its burden of proof, has the obvious value of allowing
intervenors to consider that evidence, conduct cross-examination concerning it, and submit their
own evidence in rebuttal. With regard to the Conditions in question, there is no valid
government interest in deferring the review of the evidence in question until after the close of the
hearing. BW could, and should, submit that information as evidence at the hearing, consistent
with its burden of proof. Moreover, because the information in question is relevant to the
47
OPSB's certification criteria in R.C. 4906.10(A), the OPSB must consider that information
before deciding to issue a certificate for the Project.
For all of the above reasons, the Conditions in question constitute an unlawful violation
of the IJNU Intervenors' rights to procedural due process under the Fourteenth Amendment of
the Ohio State Constitution and Section 16, Article I of the Ohio Constitution.
CONCLUSION
Accordingly, the UNU Intervenors request that the Court to vacate and remand the
OPSB's Opinion, Order and Certificate of March 22, 2010 and its Entry on Rehearing of July 15,
2010 with instructions to take the following actions to address the errors described by each
Proposition of Law (the parenthetical numbers correspond to the Propositions of Law): (1) direct
OPSB to add conditions to the Certificate prohibiting wind turbine noise at the property lines of
nonparticipating neighbors from exceeding (A) 5 dBA over the background level of 29 dBA, (B)
an absolute ceiling of 35 dBA, and (C) dBC levels of 60 dBC and 20 decibels above the A-
weighted level, or in the alternative, if the Court does not specify the noise standards to be met,
direct OPSB to set its own objective, enforceable limitations on turbine noise at the property
lines of nonparticipating neighbors based on the record evidence; (2) if the Court does not direct
OPSB to establish the specific limitations on dBC noise listed in (1)(C), require BW to amend its
Application to submit modeling or similar numeric data on the low frequency noise that the
turbines will produce at the property lines of nonparticipating neighbors and reopen the hearing
record to consider this information; (3) direct OPSB to establish setbacks between turbines and
property lines of nonparticipating neighbors that will prevent noise exceeding the limits in (1)
above from reaching these properties; (4) direct OPSB to reopen the hearing record to receive
evidence on and establish Certificate conditions for the appropriate setbacks between the turbines
and the property lines of nonparticipating neighbors to protect these properties from blade throw,
48
shadow flicker, and ice throw; (5, 6) direct OPSB to strike the testimony of Christopher Shears
and his sponsored exhibits described in section D. 1. of the Statement of Facts and to reconsider
its issuance of the Certificate without consideration of this testimony and exhibits; and (7-10)
direct OPSB to reopen the hearing record to receive, and revise or add to the Certificate's
conditions in light of, the information that the conditions described in the Seventh Proposition of
Law otherwise would have allowed BW to submit to the OPSB Staff after issuance of the
Certificate.
Respectfully submitted,
Jack A. Van Kley (0016961)Counsel of RecordVan Kley & Walker, LLC132 Northwoods Blvd., Suite C-1Columbus, Ohio 43235(614) [email protected]
Christopher A. Walker (0040696)Van Kley & Walker, LLC137 N. Main St., Suite 316Dayton, Ohio 45402(937) [email protected]
49
CERTIFICATE OF SERVICE
I hereby certify that, on November 16, 2010, a copy of the foregoing brief was served by
regular mail on the following counsel and party:
Howard PetricoffStephen HowardMichael SettineriVorys, Sater, Seymour and Pease LLP52 East Gay StreetColumbus, Ohio 43215mhnetricoff&vorvs comsmhowar^vorys.commjsettineri vorys.com
Werner MargardJohn JonesAssistant Attorneys General180 East Broad Street, 9th FloorColumbus, Ohio 43215Werner margard ?,puc.state.oh.usJohn.'oa nes(apuc.state.oh.us
Daniel A. BrownBrown Law Office LLC204 South Ludlow Street, Suite 300Dayton, Ohio 45402dbrown@brownlawda^ton.com
Thomas E. LodgeCarolyn S. FlahiveSarah ChambersThompson Hine LLP41 South High Street, Suite 1700Columbus, Ohio 43215-6101tom [email protected]@thompsonhine.com
thompsonhine.com
Larry GearhardtChief Legal CounselOhio Farm Bureau FederationP.O. Box 182383Columbus, Ohio 43218-2383lgearhardtgofbf.org
Jane A. NapierAssistant Prosecuting AttorneyChampaign County200 North Main StreetUrbana, Ohio 43078,[email protected]
G.S. WeithmanDirector of LawCity of Urbana205 South Main StreetUrbana, Ohio 43078diroflaw(cr^ctcn.net
Margaret A. MaloneAssistant Attorney GeneralEnvironmental Enforcement Section30 E. Broad St., 25a' FloorColumbus, OH 43215Margaret malone&ohioattomeygeneral.¢ov
Gene ParkPiqua Shawnee Tribe1803 Longview DriveSpringfield, Ohio 45504ewestl4(crwoh.rr.com
Christoplier A. Walker
50