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Greenwich wind park request for protective status (as in no one else can read them) on the request to add new turbine models.
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9932800v1
BEFORETHE OHIO POWER SITING BOARD
In the Matter of the Application of 6011 GreenwichWindpark, LLC for an Amendment to its Certificate toInstall and Operate a Wind-Powered ElectricGeneration Facility in Huron County, Ohio
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Case No. 15-1921-EL-BGA
6011 GREENWICH WINDPARK, LLCMOTION FOR A PROTECTIVE ORDER TO LIMIT SCOPE OF DISCOVERY
Pursuant to Ohio Administrative Code (“O.A.C.”) Rule 4906-7-07(H)(1), 6011 Greenwich
Windpark, LLC (“Greenwich”) requests that the Ohio Power Siting Board (“Board”) or the
Administrative Law Judge issue an order limiting the scope of discovery in this proceeding to
prohibit discovery on subjects not within the scope of this proceeding, i.e, subjects not related to
the proposed additional of new turbine technology presented in the amendment application. The
amendment application in this proceeding merely requests to upgrade the list of possible turbine
models in order to take advantage of the latest technological advancements in the field.
Greenwich does not seek to modify any of the conditions and requirements established by the
Board in the original Certificate case (Case No. 13-990-EL-BGN). Discovery, therefore, should
be limited solely to Greenwich’s request to add new turbine models to the list of possible models
to be used in the project. Greenwich respectfully requests an expedited ruling pursuant to the
Board and the administrative law judge’s authority under O.A.C. 4906-7-12(F). The grounds for
the Motion are set forth in the attached Memorandum in Support.
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Respectfully submitted on behalf of6011 GREENWICH WINDPARK, LLC
Sally W. Bloomfield (Reg. No. 0022038)Dylan F. Borchers (Reg. No. 0090690)BRICKER & ECKLER LLP100 South Third StreetColumbus, OH 43215-4291Telephone: (614) 227-2368; 227-4914Facsimile: (614) 227-2390E-Mail: [email protected]
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BEFORETHE OHIO POWER SITING BOARD
In the Matter of the Application of 6011 GreenwichWindpark, LLC for an Amendment to its Certificate toInstall and Operate a Wind-Powered ElectricGeneration Facility in Huron County, Ohio
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Case No. 15-1921-EL-BGA
MEMORANDUM IN SUPPORT
I. INTRODUCTION
On November 16, 2015, Greenwich filed an application to amend its Certificate by adding
three additional turbine models as suitable for the Project1 As demonstrated in the amendment
application, the additional turbine models do not create any material increase in any
socioeconomic or environmental impact of the facility: the additional models will all comply with
the maximum noise level established in the Certificate; the additional models will comply with
the Certificate’s shadow flicker thresholds; the turbines will remain in the exact same locations as
established in the Certificate; and the Project will continue to be bound by all of the conditions in
the Certificate. No modifications to the Certificate conditions or requirements are proposed in the
amendment application.
On November 25, 2015, Greenwich Neighbors United (“GNU”) filed a Motion to
Intervene, and on January 21, 2016, issued its first set of discovery to Greenwich. This first set of
discovery consisted of interrogatories and request for the production of certain documents. Many
of GNU’s discovery requests sought information on subject matter entirely unrelated to
Greenwich’s amendment application. These requests were not reasonably calculated to lead to
1 The “Project” consists of up to 25 wind turbine generators, for a total generating capacity of 60 MW, located inHuron County, Ohio. The Project received its Certificate on August 25, 2014.
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the discovery of admissible evidence in this proceeding. On February 10, 2016, Greenwich
responded appropriately and in good faith to these discovery requests.
Greenwich now moves for an order limiting the scope of discovery to prohibit discovery
on subjects not related to the proposed changes in turbine technology presented in the amendment
application. Specifically, issues thoroughly reviewed and decided with finality in the underlying
Certificate case (Case No. 13-990-EL-BGN) that Greenwich does not propose to modify in its
amendment application should not be subject to discovery.
II. ARGUMENT
O.A.C. Rule 4906-7-07(H)(1) establishes that the Board or administrative law judge may
issue an order that “[c]ertain matters may not be inquired into” and that “[t]he scope of discovery
be limited to certain issues.” Greenwich now moves for an order limiting the scope of the
discovery to prohibit discovery on subjects not related to the proposed changes in turbine
technology presented in the amendment application.
An order limiting the scope of discovery will protect the integrity of the Board’s processes
and decisions. The integrity of the Board’s processes and decisions is undermined if parties are
able to use amendment application proceedings to re-litigate issues already thoroughly reviewed
and determined by the Board when these issues have nothing to do with the scope of the
amendment application.
The Board’s precedent is clear: an amendment application proceeding must be limited to
the issues raised in the amendment application. A recent case, In the Matter of the Application of
Black Fork Wind Energy, LLC Regarding its Certificate of Environmental Compatibility and
Public Need Issued in Case No. 10-2865-EL-BGN, is directly on point.2 In Black Fork, the Board
2 Opinion, Order, and Certificate, Case No. 14-1591-EL-BGA (August 27, 2015) at 2
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stated that its “review of this application is concentrated solely on the Applicant’s request to add
two new turbine models to the list of possible models to be used in this project . . . .”3 One
passage of the Board’s Order in Black Fork is particularly instructive:
This application merely permits Black Fork to upgrade the list of possibleturbine models in order to take advantage of the latest technologicaladvancements in this field of study. Some of the intervenors raise issuesregarding possible variances from the conditions established in the BlackFork Certification Case, such as shadow flicker, noise, ecological impacts,and setback. However, all of those issues were thoroughly reviewed in ourOrder approving the Stipulation in the Black Fork Certification Case, and,as verified in the Staff Report, none of the requirements established in thecertificate will be changed or violated with the technologicaladvancements proposed in this application.4
Notably, Black Fork goes even further by limiting the scope intervention only to issues
within the scope of the amendment. In Black Fork, a group of individuals filed motions to
intervene, citing issues such as the placement of the project’s meteorological tower, concerns
about the project’s impact to property values, and the application of Ohio’s setback laws.5 The
Board determined that the motions to intervene should be granted solely “to the extent they
address Black Fork’s request to add new turbine models to the list of suitable turbine models for
the project,” but “[t]he motions to intervene should be denied, to the extent the movants request
intervention for the purpose of addressing irrelevant matters outside of this qualification and the
scope of this proceeding.”6
If the scope of intervention must be limited to the issue of adding new turbine models,
then it follows that discovery must also be limited in scope. Since GNU’s motion to intervene in
this proceeding on November 25, 2015, Greenwich has warned the Board of GNU’s interest in re-
3 Id. at 6.4 Id.5 Id. at 2-3.6 Id. at 3.
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litigating issues already determined in the Certificate case with no bearing on the amendment
application. For instance, on December 4, 2015, Greenwich filed a reply to GNU’s motion to
intervene in which Greenwich stated that it “does not oppose GNU’s motion to intervene to the
extent that the issues it raises in the proceeding are within the scope of the amendment
application” but that “the Board should not allow GNU to raise issues that were already
determined in the original Certificate case and not the subject of the Amendment.”7 Greenwich
reiterated this position in its December 17, 2015 “Reply to Comments and Objections of GNU”
after GNU proactively sought to re-open issues already determined in the Certificate case.8
Granting the motion will set clear boundaries for any future discovery, thereby enabling a
more efficient proceeding for all parties involved. An order limiting the scope of discovery will
also reduce the need to potentially involve the administrative law judge during the discovery over
issues involving these same topics. Thus, an order granting the motion will promote
administrative efficiency.
It is within the authority of the Board or the administrative law judge to “issue an
expedited ruling on any motion, with or without the filing of memoranda, where the issuance of
such a ruling will not adversely affect a substantial right of any party.” O.A.C. 4906-7-12(F).
Such a ruling will not adversely a substantial right of the GNU because discovery of the issues
outside of the scope of the amendment application is not relevant to GNU’s ability to effectively
participate in the proceeding before the Board.
7 Greenwich Reply to Motion to Intervene, at 2.8 On December 3, 2015, GNU filed “Comments and Objections” in which it raised issues already decided in theCertificate case that were not subject to the amendment application.
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III. CONCLUSION
For the reasons stated herein, Greenwich respectfully requests that the Board grant this
Motion for Protective Order and limit the scope of discovery to matters before the Board.
Respectfully submitted on behalf of6011 GREENWICH WINDPARK, LLC
Sally W. Bloomfield (Reg. No. 0022038)Dylan F. Borchers (Reg. No. 0090690)BRICKER & ECKLER LLP100 South Third StreetColumbus, OH 43215-4291Telephone: (614) 227-2368; 227-4914Facsimile: (614) 227-2390E-Mail: [email protected]
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Motion for Protective Order
has been served upon the following parties listed below by electronic mail, this 10th day of
February 2016.
Sally W. Bloomfield
Samuel RandazzoScott ElisarMcNees, Wallace & Nurick LLC21 East State Street, 17th FloorColumbus, OH [email protected]@mwncmh.com
This foregoing document was electronically filed with the Public Utilities
Commission of Ohio Docketing Information System on
2/10/2016 4:42:17 PM
in
Case No(s). 15-1921-EL-BGA
Summary: Motion for Protective Order to Limit Scope of Discovery of 6011 GreenwichWindpark, LLC electronically filed by Teresa Orahood on behalf of Sally Bloomfield
