The ‘Ohio Say YES to BigWind Board’ says it…again

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The Ohio Power Siting Board said YES to BigWind in the Buckeye Wind, Greenwich Wind and Black Fork Wind projects. In relatively quick order, three pending cases were denied but not without Senator Seitz giving his two cents worth on two of the cases. The articles below give a good account of the cases and the decisions.

Buckeye Wind – The request for a rehearing was denied. EverPower requested that the expiration date for Phase I of the project be extended to 2018. Without the extension, their Phase I certificate would have expired. EverPower argued that the certificate for Phase II was good until 2018 and, since they were “one project,” it made sense to extend Phase I. The problem with that argument is that during the hearings, Union Neighbors United, Champaign County and the three Townships were not permitted to ask any questions about the cumulative impact of Phase I and II because Everpower claimed they were two distinct projects. It appears the OPSB let them have it both ways when it suited EverPower’s needs. In addition, the law requires that EverPower obtain an amendment to their certificate in order to secure the extension. By amending their certificate, the newly revised property line setbacks would have applied to Phase I. EverPower claimed that the OPSB had the authority to disregard the law and call their request for an amendment a “motion”. Presto! No new setbacks would apply.

UNU Atty, Jack Van Kley is quoted in the Urbana paper as saying, ““EverPower has continued to hold this community hostage with this project hanging over their heads,” Van Kley said. “And by extending the certificate as they did today, they just make the project continue to hang there with no decision as to whether construction is going to start which will impair the decision of property owners in Champaign County as to whether they want to do anything new with their properties. Obviously they’re not going to want to build new facilities knowing that those facilities could become worthless if they put in the wind farm so the longer this project hangs in limbo, the longer the community is going to be held hostage by this project.” (UNU, EverPower react to board’s decision on rehearing August 28th, 2015)

Greenwich Wind – In this Huron County case, Omega, a local business argued that the project could not go forward because 62% of the proposed turbines violated minimum setbacks and the proper waivers had not been obtained. Senator Seitz chimed in with his firm agreement reminding the Board that he knew what the law required since he was the one who wrote the law. Chairman Porter did not seem concerned about this and appeared to take the position that any turbine not meeting the required setbacks would not be built even though the project was given a green light.

The relevant language in the Greenwich Board Order states; “The Board notes that R.C 4906.20(B)(2) provides that the setback shall apply in all cases except those in which all owners of property adjacent to the wind farm property waive application of the setback to that property. R.C. 4906.20 does not grant to the Board or the ALJ the authority to waive the minimum setback requirement. *** Moreover, the Board notes that, consistent with the statute, the Stipulation, as approved by the Board, requires that, for any wind turbine that does not comply with the minimum setback requirements stated in the statute, Greenwich must secure an executed waiver of the minimum setback. If the necessary waivers are not obtained, Greenwich shall not build the turbine.”

It was difficult to ascertain just how and when the OPSB would make a determination on setbacks. Given that no waiver of the minimum setback can take place unless it takes place pursuant to a procedure that the OPSB must establish by rule, we will have to wait and see what happens next. The OPSB has no rule in place and never has had such a rule in place. Confused? So are we! Greenwich will consider an appeal to the Ohio Supreme Court. (See the Urbana Daily Citizen for coverage of Senator Seitz.)

Black Fork Wind – In this case where Element Power requested an extension of their certificate from 2017 to 2019 and a substitution of two turbine models, a number of citizens from the Crawford/Richland County area near Shelby filed to intervene in the case. The decision handed down by the OPSB approved the extension and new turbine models at the same time they approved the citizens as Intervenors in the case. What? By simultaneously approving the developer’s request and the citizen’s, they actually prevented the citizens from having any input into the case even though the citizens had applied to be intervenors one year ago. This was astonishing. The OPSB reasoned that because the two new turbine models did not change the layout of the project, there was no reason not to approve their request. Senator Seitz looked at the Chairman and asked how in the world he could explain the decision to simultaneously grant intervenor status and approve the project. It was noteworthy that the attorney for Element is the same attorney for Buckeye. The Black Fork extension was requested two years before its expiration apparently to duck the new property line setbacks that would have been required if Element amended their certificate at a later date.

We think UNU attorney Jack Van Kley had it right in his statement to the Urbana paper, “We’re not surprised because the board always decides in the favor of the utilities, so that’s not a surprise,” Van Kley said. “It seems that you can’t really get a fair hearing in these proceedings until you get beyond the level of the board and go into the court system, and that’s a fact of life that we’ve come to expect.” (UNU, EverPower react to board’s decision on rehearing August 28th, 2015)

To read these decisions, go to http://www.opsb.ohio.gov/opsb/index.cfm/cases/ . At the time of this writing, the website was down for maintenance.

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