OPSB issues draft BigWind siting rules- the joke is on us

This past week the Ohio Power Siting Board released its industrial wind facility “Draft Rules” for comment. The OPSB release states:

The public is invited to submit comments on these rules. In an entry dated September 22, 2016, the Ohio Power Siting Board (OPSB) issued proposed rules applicable to wind‑powered electric generation facilities in amended Ohio Administrative Code 4906‑4‑08 and newly proposed 4906‑4‑09. The OPSB requests that interested persons submit formal written comments on the proposed rules by October 24, 2016 and reply comments by November 8, 2016. The entry and proposed rules are available in the online record for case number 16-1109-GE-BRO. (We have also attached the proposed rules below.)

Stakeholders may submit comments in case number 16-1109-GE-BRO via electronic filing or in hard copy to: PUCO Docketing Division, 11th Floor, 180 East Broad Street, Columbus, Ohio 43215. Following the conclusion of the comment and reply comment period, the OPSB will later issue final rules to be reviewed by the Ohio Joint Committee on Agency Rule Review before taking effect.

Questions regarding the rulemaking may be directed to contactopsb@puco.ohio.gov.

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Having only given the draft rules a cursory look, we cannot provide you with our detailed assessment at this time BUT we can say they appear to be a complete farce and that they fail to provide any real enforceable protection for residents and property owners. For instance, the draft rule at page 28 addresses noise at adjacent non-participating property. Everyone knows that sound from wind turbines can propagate across miles and varies depending on topography. This alone is an indicator that the rules are designed to facilitate the construction of industrial wind and nothing else. In order to make the industrial power plants seem benign, the rule actually changes the word wind “facility” to wind “farm”. Gee – will fracking sites become oil and gas farms? Anyone up for a nuclear farm?

We all remember the blade failure in Paulding County which occurred as a result of human error when an employee in some remote control center restarted a turbine that had been automatically shut down. Not to worry going forward! The new rules outlaw human error! “Bypass or override of wind turbine safety features or equipment is prohibited.” Feel better now? Not only that, the rules now require the developer to give their best guess on “probabilities” of bad things happening. If the developer doesn’t think that there is a real good chance that high winds could be dangerous, or ice throws could smash through your car window while you are driving down a road, or hit your children while playing in their yards, then Hakuna Matata! No worries!

The rules include the following provisions:

(6) High winds. The applicant shall provide an analysis of the prospects of high winds for the area, including the probability of occurrences and likely consequences of various wind velocities, and describe plans to mitigate any likely adverse consequences.

(1) The ice throw analysis shall, at a minimum, include the probability of ice throw impacts at the nearest property boundary and public road.

(3) In addition to the use of the safety measures enumerated in paragraph (E)(2) of this rule, the potential impact from ice throw shall be presumptively deemed to satisfy safety considerations if the probability of one kilogram of ice landing beyond the statutory property line setback for each turbine location is less than one per cent per year.

We invite you to consider the proposed rule on Noise below which is followed by Union Neighbors United’s January 18th noise comments filed with the OPSB. UNU’s comments were more fully described by its expert noise advisor again on June 9, 2016. Those written comments are attached. The only thing one can say about these “rules” is that once again the OPSB is attempting to provide wind developers with an “unregulated” environment under the guise of “regulation.” Regulation that protects no one is hardly regulation.

OPSB Draft Noise Rule

(2) The facility shall be operated so that the facility noise contribution does not result in noise levels at the adjacent non-participating property that exceed the project area ambient nighttime average sound level (Leq) by five A-weighted decibels (dBA). Non-participating property, for the purpose of this rule, refers to properties not under lease or agreement with the applicant regarding any components of the facility or project. During daytime operation only {seven a.m. to ten p.m.), the facility may operate at the greater of: the project area ambient nighttime Leq plus five dBA; or the validly measured ambient Leq plus five dBA at the location of the adjacent non-participating property. After commencement of commercial operation, the applicant shall conduct further review of the impact and possible mitigation of all project-related noise complaints through its complaint resolution process.

UNU Comment January 18, 2016

(a) Noise:

(i) To prevent annoyance and sleep deprivation from inherently intrusive wind turbine noise, operational noise levels of wind energy facilities should not exceed five dBA above the background sound level at nonparticipating properties. UNU Brief at 22-25. Since this proposed standard applies to nonparticipating properties, the rule should require all background noise measurements to be taken on location at nonparticipating properties wherever possible.2 For purposes of determining compliance with this standard, background noise assessments must be based on the L90 statistical standard, as universally acknowledged in the acoustical engineering profession. Id. at 30. The L90, known as the residual sound level, is the sound level exceeded during 90% of the measurement period. The L90 measures the quietest 10% of a time interval in order to identify the amount of background sound that is normally available to mask turbine noise that otherwise would awaken a person. By measuring the quietest 10% interval, the L90 statistic filters out the sporadic noise from noise events of short duration, such as passing cars.

By removing brief noise spikes, the L90 metric eliminates short-term noise spikes that serve no purpose for masking the sound of a new noise source. Id. (ii) No nonparticipating resident or landowner should be exposed to noise levels greater than 35 dBA and 50 dBC at any time. UNU Brief at 35-40, 44. (iii) The above standards should apply at the property lines of nonparticipating properties, not merely at neighboring residences. Id. at 44-45. (iv) Proposed subsection 4906-4-08(C)(3)(B) requires that the application address “cumulative operational noise levels at the property boundary for each non-participating property adjacent to or within the project area, under both day and nighttime conditions.” As the Board is well aware, wind energy developers often plan their facilities in phases, while in other cases, one developer’s facility is proposed in or near the location of another developer’s facility. In order to assess the cumulative impact of multiple facilities, it is critical that such assessment take into account impacts from other existing, proposed, or planned wind power facilities in addition to impacts from the facility that is the subject of the application. This comment applies not only to assessment of cumulative noise impacts, but also to visual impacts, shadow flicker, and othercumulative facility impacts.

Last June when the OPSB presented an earlier draft of wind rules, UNU asserted the proposed rules conflicted with the intent of legislation to protect the public and that they lacked enforceable standards. We have reprinted a portion of the news report from the Hannah Statehouse News Service from last June wherein” JCARR Chairman Sen. Joe Uecker (R-Loveland) said the General Assembly only required OPSB write “reasonable regulations,” and did not include the phrase “for the protection of the public.” Notwithstanding we recall that Senator Troy Balderson pointed out to the OPSB’s Legal Director, Angela Hawkins, that there were, in fact, deficiencies in the rules and he expects those deficiencies to be fixed in the upcoming new rulemaking process.

We will report further on these draft rules after we study them a bit more. In the meantime, be thinking about having your local elected officials join you in commenting on the rules when they are due one month from today on October 24th. For now, we think anyone who signs a wind lease, a “good neighbor agreement,” or a waiver should question whether their family, neighbors or community will ever truly be protected by OPSB rules….

The Hannah Statehouse News Service Reported the hearing as follows (emphasis added by Wind News):

Wind Farm Certification Rules Clear JCARR despite Opposition

A new rule revising the content and substance of certificate applications for electric generation facilities, including wind farms, cleared the Joint Committee on Agency Rule Review (JCARR) on Monday.

The Ohio Power Siting Board (OPSB) rule addresses new wind turbine setback requirements set in 130-HB483…

Lawyer Christopher Walker, representing Union Neighbors United (UNU), testified in opposition to the rule saying it violates the third JCARR prong — conflicting with legislative intent.

“Today’s rule purports to contain the board’s regulations governing health and safety, land use, and ecological impacts of wind energy projects. However, this rule lacks the standards explicitly required by the General Assembly to protect the public health and public interest from the impacts of wind farm operations,” Walker said.

“Neither Rule 4906-4-08 nor the remainder of the board’s rules establish any requirements governing the reconstruction or enlargement of wind turbines, protection of recreational lands or wildlife,” Walker continued. “Furthermore, the rules contain no enforceable standards for wind facility decommissioning or for protection of the public from ice throw, wind turbine noise, blade shear, or shadow flicker. Instead, this rule, which purports to address health and safety impacts of wind energy facilities, is merely a laundry list of various information that a wind energy facility developer must submit to the board and its staff in its application.”

Walker said he was particularly concerned that the rule does not set specific standards for blade and ice throw, noting turbines can fling fragments 1,640 feet. He said the rule is “silent” on this issue.

Rep. Dan Ramos (D-Lorain) pointed out the rule requires applicants to evaluate and describe the potential impact from blade shear and ice throw at the nearest property boundary and public road and include plans to mitigate the potential effects and instruct workers of potential hazards. Walker responded by saying he meant the rule does not include enforceable standards on these issues.

Walker said several times that HB562 required “reasonable regulations” “for the protection of the public.” JCARR Chairman Sen. Joe Uecker (R-Loveland) said the General Assembly only required OPSB write “reasonable regulations,” and did not include the phrase “for the protection of the public.” Walker acknowledged the latter phrase was not included in the law….

 

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