Greenwich Neighbors United Response to Wind Farm

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BEFORE THE OHIO POWER SITING BOARD

In the Matter of the Application of )6011 Greenwich Windpark, LLC for an )

Amendment to its Certificate to Install ) Case No. 15-1921-EL-BGA and Operate a Wind-Powered Electric )Generation Facility in Huron County, Ohio. )

GREENWICH NEIGHBORS UNITED’S RESPONSE TO

6011 GREENWICH WINDPARK, LLC’S REPLY

Samuel C. Randazzo (Reg. No. 0016386)(Counsel of Record)

Scott E. Elisar (Reg. No. 0081877)MCNEES W ALLACE & NURICK LLC 21 East State Street, 17TH Floor Columbus, OH 43215Telephone: (614) 469-8000Telecopier: (614) [email protected](willing to accept service by e-mail)[email protected](willing to accept service by e-mail)

DECEMBER 29, 2015 ATTORNEYS FOR GREENWICH NEIGHBORS UNITED



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BEFORE THE OHIO POWER SITING BOARD

In the Matter of the Application of )

6011 Greenwich Windpark, LLC for an ) Amendment to its Certificate to Install ) Case No. 15-1921-EL-BGA and Operate a Wind-Powered Electric )Generation Facility in Huron County, Ohio. )

GREENWICH NEIGHBORS UNITED’S (“GNU”) RESPONSE TO 6011 GREENWICH WINDPARK, LLC’S REPLY

On December 17, 2015, 6011 Greenwich Windpark, LLC (“Wind Farm”) filed its

Reply to Comments and Objections of Greenwich Neighbors United’s Comments and

Objections (“Reply”) which were filed in this proceeding on December 3, 2015. GNU’s

Comments and Objections were focused on the Wind Farm’s application to amend a

certificate1 (“Application”). More specifically, the Application seeks authority to add

three turbine makes and models to the one turbine make and model identified for

purposes of the certificate sought in Case No. 13-0990-EL-BGN. The three turbine

makes and models that are the object of the Wind Farm’s current affections include

machines that are, among other things and according to the Wind Farm’s Application,

noisier, bigger, and generate more shadow flicker.

To the extent the Wind Farm’s Reply is a permissible pleading, GNU responds

below.

1 It is GNU’s position that the certificate issued in Case No. 13-0990-EL-BGN was issued unlawfully.



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I. ACCELERATED PROCESS AND REMEDYING THE CONFUSION CREATEDBY THE WIND FARM

At page 4 of the Reply, the Wind Farm states that it has not taken the position

that the application in this proceeding qualifies for an accelerated review process. GNU

accepts the Wind Farm’s representation.

But, as GNU explained previously, this representation by the Wind Farm is

necessary because of the newspaper notices which the Wind Farm apparently caused

to be published without any authorization from the Ohio Power Siting Board (“Board”).

As GNU demonstrated previously, the published notices2 stated that interested parties

had ten (10) days to intervene and submit comments. As the proof of publication filed

by the Wind Park on December 3, 2015 shows, that newspaper notices state:

Affected persons may file comments or motions to intervene in this matterwith the Board up to ten (10) days following the publication of this notice.

If the Wind Farm was not seeking an expedited review process, why did it suggest

otherwise by causing these newspaper notices to be published?

To avoid perpetuating the public confusion created by the notices published by

the Wind Farm, GNU urges the Board to direct the Wind Farm to publish a correction

notice (in the same newspapers it used to publish the unauthorized notice) stating as

follows:

2 The content of the published notice is entirely defective relative to the goal of informing the public of the

content and significance of the relief requested by the Wind Farm.



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Correction Notice by 6011 Greenwich Windpark, LLC

The purpose of this notice is to alert the public to an error in a noticepublished by 6011 Greenwich Windpark, LLC in the Norwalk Reflector andthe Greenwich Enterprise Review on November 20, 2015 and

November 24, 2015, respectively. These notices were published withoutauthorization by the Ohio Power Siting Board and they erroneously statedthat affected persons had ten (10) days following the publication of eachnotice to file comments or motions to intervene with the Ohio Power SitingBoard. However, the deadline for motions to intervene, comments or anyother action that might be taken has not been established by the OhioPower Siting Board. When the Ohio Power Siting Board does establish aprocedural schedule for Case No. 15-1921-EL-BGA, correct notices will bepublished in these newspapers.

II. SETBACKS – THE APPLICATION MUST BE REJECTED

The Wind Farm’s Reply did not address GNU’s request that the amendment

Application be rejected as a matter of law.

R.C. 4906.201 states that “[a]ny amendment made to an existing certificate after

the effective date of the amendment of this section by H.B. 483 of the 130th general

assembly, shall be subject to the setback provision of this section as amended by that

act.” R.C. 4906.201 also states that the minimum setbacks contained in R.C.

4906.20(B)(2) are applicable to facilities of the size proposed by the Wind Farm. Thus,

the Wind Farm’s amendment triggers the application of the current minimum setback

requirements in R.C. 4906.20.

As discussed in more detail below, the Wind Farm’s Application in this

proceeding indicates that the Wind Farm’s project (as modified to include the new

turbine makes and models) continues to substantially violate the minimum setback

requirements. The request to add bigger turbine makes and models affects the

computation of the minimum setback requirements. As the Board has already held in

Case No. 13-0990-EL-BGN, the Board has no authority to permit the Wind Farm to





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In any event and even if the Board had adopted a rule establishing the procedure

by which the Wind Farm might lawfully secure waivers from the minimum setback

requirements, the Wind Farm has made no showing that it has secured waivers from all

property owners adjoining the Wind Farm property. And it has made no effort to show

that the minimum setback requirements are reasonable based on the relevant facts and

circumstances.

Accordingly, the Board must reject, as a matter of law, the Wind Farm’s

Application to amend the certificate issued in Case No. 13-0990-EL-BGN, a certificate

that GNU believes should have never been issued in the first place.

III. DUE PROCESS

To the extent that the Board does not reject or dismiss the Application, it must

nonetheless subject the Application to a process that includes a local public hearing and

an evidentiary hearing.

At page 5 of the Reply, the Wind Farm concludes by urging the Board to deny

GNU’s request for a hearing. On the way to this conclusion, the Wind Farm essentially

asserts that its Application in this proceeding raises no issues. To support its effort to

block a hearing, it cites some decisions discussed below.

First, it is important to note that R.C. 4906.07 specifies the circumstances when

the Board must hold a hearing. It does not preclude the Board from holding a hearing

in other circumstances.

In this case, the Wind Farm is seeking authority to amend a certificate by adding

new turbine types (the specified Gamesa, General Electric, and Goldwind makes and

models). In the Application, the Wind Farm states that:



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(1) The three proposed turbines are better fitted to low wind speedconditions and that they “… all provide an increase in energyproduction ….” In other words, the Wind Farm’s Applicationindicates that the proposed turbines will operate more frequentlythan the one turbine type that was the focus of Case No.

13-0990-EL-BGN.

3

(2) The Gamesa G114 and Goldwind GW121 turbines have a total

height greater than the Nordex model which was the focus of CaseNo. 13-0990-EL-BGN.4

(3) The Gamesa G114, Goldwind GW121 and the GE 2.5-120 eachhave a maximum sound power level that is greater than themaximum sound power level of the Nordex model which was thefocus of Case No. 13-0990-EL-BGN.5

(4) The Wind Farm’s shadow flicker modeling for the Gamesa G114,

GE 2.5-120 and Goldwind GW121 predicts shadow flicker inexcess of 30 hours per year. The predicted excessive shadowflicker for the GE 2.5-120 and the Goldwind GW121 affects more“receptors” than was the case for the Nordex model which was thefocus of Case No. 13-0990-EL-BGN.6

(5) The Goldwind GW121 and GE 2.5-120 have a rotor diametergreater than the Nordex model which was the focus of Case No.13-0990-EL-BGN.7

As the Board knows from the hundreds of comments filed in Case No.

13-0990-EL-BGN, including comments of adjoining property owners, which express

objections and concerns,8 there is strong local opposition to the Wind Farm’s proposals

and intentions. The comments which have thus far been filed in this proceeding,

including the comments of adjoining property owners, identify similar concerns and

3

Application at 1. Page 5 of the Application states: “Given the characteristics of the wind at many of theintended turbine locations, these turbines would result in increased productivity for the project.”

4 Id. at 1.

5 Id. at 1-2.

6 Id. at 2.

7 Id. at 9.

8 The comments filed in Case No. 13-0990-EL-BGN are hereby incorporated by reference.



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objections and identify aspects of the Application that require new or updated studies

and evaluations which have not been undertaken or submitted by the Wind Farm.

Given the impacts which the Wind Farm itself attributes to the new turbine makes

and models identified in the Wind Farm’s Application, the significant local opposition,

the Wind Farm’s extensive violation of the minimum setback requirements in prior law,

and the Wind Farm’s failure to conform its Application to the current setback

requirements (which are applicable to its Application due to the timing of the

Application), GNU urges the Board to find that it must hold a hearing pursuant to R.C.

4906.07. In the alternative, GNU urges the Board to find that even if the proposed

modifications might not materially increase the environmental impact of the facility or

cause a substantial change in location of all or a portion of the facility, the history, facts

and circumstances associated with this proceeding and Case No. 13-0990-EL-BGN

require the Board to conduct a thorough examination and to hold a local public hearing

as well as an evidentiary hearing for the purpose of resolving contested issues.

To contest GNU’s request for a hearing, the Wind Farm relies on Board decisions

in In the Matter of the Application of Paulding Wind Farm II, LLC, Case No.

10-3128-EL-BGA, In the Matter of the Application of Hog Creek Wind Farm, LLC, Case

No. 11-757-EL-BGA, In the Matter of the Application of Blue Creek, LLC, Case No.

11-1995-EL-BGA, In the Matter of the Application of Hog Creek Wind Farm, LLC, Case

No. 11-5542-EL-BGA and In the Matter of the Application of Black Fork Wind Energy,

LLC, Case No. 14-1591-EL-BGA. However, these decisions involve law, facts and

circumstances that are very different than are relevant or present here.



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For example, none of the cases relied upon by the Wind Farm involves the

construction of turbines at locations that violate minimum setback requirements. Here,

the Wind Farm’s Application states that “for … 16 of the 25 proposed turbine locations,

the minimum setback of the 1.1 times the structure height to the nearest adjacent

property boundary is penetrated. (Turbines 1, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 17, 21,

22 and 25).”9 And, as previously noted, the increased size and dimensions of the

proposed new turbines affect the computation of the minimum setback requirements.

IV. CONCLUSION

For the foregoing reasons, GNU requests that the Board direct the Wind Farm to

publish a correction notice, and reject the Wind Farm’s Application or, alternatively, to

hold a local public hearing as well as an evidentiary hearing to resolve contested issues.

Respectfully submitted,

/s/ Samuel C. RandazzoSamuel C. Randazzo (Reg. No. 0016386)

(Counsel of Record)Scott E. Elisar (Reg. No. 0081877)MCNEES W ALLACE & NURICK LLC 21 East State Street, 17TH Floor Columbus, OH 43215Telephone: (614) 469-8000Telecopier: (614) [email protected](willing to accept service by e-mail)[email protected](willing to accept service by e-mail)

9 Application at 26.



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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Greenwich Neighbors United’s

Response to 6011 Greenwich Windpark, LLC’s Reply has been served via electronic

mail upon the following parties of record this 29th day of December 2015.

/s/ Samuel C. RandazzoSamuel C. Randazzo

Sally W. BloomfieldDylan BorchersBricker & Eckler LLP100 South Third StreetColumbus OH 43215-4291

Phone: 614.227-2368 / 614.227.4914Fax: [email protected]@bricker.com

ATTORNEYS FOR 6011 GREENWICH WINDPARK, LLC

Chad A. Endsley (0080648)Chief Legal CounselLeah F. Curtis (0086257)

Amy M. Milam (0082375)Ohio Farm Bureau Federation280 North High Street, P.O. Box 182383Columbus, OH 43218-2383Phone: 614.246.8258Fax: 614.246.8658E-Mail: [email protected]@[email protected]

ATTORNEYS FOR THE OHIO F ARM BUREAU

FEDERATION

William L. Wright Assistant Attorney GeneralChief, Public Utilities Section

Office of the Attorney General180 East Broad Street, 6

th Floor

Columbus, OH [email protected]

ATTORNEY FOR THE STAFF OF THE OHIO POWER

SITING BOARD



This foregoing document was electronically filed with the Public Utilities

Commission of Ohio Docketing Information System on

12/29/2015 10:49:01 AM

in

Case No(s). 15-1921-EL-BGA

Summary: Response of Greenwich Neighbors United to 6011 Greenwich Windpark, LLC'sReply electronically filed by Mr. Samuel C. Randazzo on behalf of Greenwich NeighborsUnited

Documents

Greenwich Neighbors United Response to Wind Farm