In re Application of Champaign Wind, L.L.C. (Slip Opinion) , 146 Ohio St. 3d 489 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Champaign Wind, L.L.C., Slip Opinion No. 2016-Ohio-1513.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-1513
IN THE MATTER OF THE APPLICATION OF CHAMPAIGN WIND, L.L.C., FOR A
CERTIFICATE TO CONSTRUCT A WIND-POWERED ELECTRIC GENERATING
FACILITY IN CHAMPAIGN COUNTY, OHIO; CHAMPAIGN COUNTY ET AL.,
APPELLANTS; POWER SITING BOARD ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Champaign Wind, L.L.C., Slip Opinion
No. 2016-Ohio-1513.]
Power Siting Board—Wind-powered electric-generation facility—Determination
approving siting of facility was lawful, reasonable, and not against the
manifest weight of the evidence—Order affirmed.
(No. 2013-1874—Submitted December 16, 2015, Decided April 13, 2016.)
APPEAL from the Power Siting Board, No. 12-160-EL-BGN.
_______________________
FRENCH, J.
{¶ 1} Appellants, a collection of local governmental entities and residents,
appeal a decision made by appellee the Ohio Power Siting Board (the “board”) that
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granted a certificate to intervening appellee, Champaign Wind, L.L.C.
(“Champaign Wind”), to construct a wind-powered electric-generation facility, or
wind farm, in Champaign County. Appellants challenge various evidentiary and
procedural rulings by the board and the board’s ultimate determination that the
proposed wind farm meets the statutory criteria for siting a major utility facility.
After reviewing the record and considering the parties’ arguments, we hold that
appellants have established neither that the board’s order is unlawful or
unreasonable nor that the board’s alleged errors affected the outcome of the
proceeding. Accordingly, we affirm the board’s order.
Facts and Procedural Background
{¶ 2} In 2012, we affirmed a board order that granted a certificate to
construct the Buckeye Wind Farm in Champaign County. That was the first time
we reviewed a siting decision to construct a wind farm. See In re Application of
Buckeye Wind, L.L.C., 131 Ohio St. 3d 449, 2012-Ohio-878, 966 N.E.2d 869,
¶ 1-3. Less than three months after we released Buckeye Wind, Champaign Wind,
a sister company of the Buckeye Wind Farm developer, filed an application to
construct another wind farm in Champaign County. Champaign Wind labeled this
wind farm “Buckeye Wind II.”
{¶ 3} In its application, Champaign Wind proposed to build up to 56 wind
turbines, along with access roads, underground and overhead electric cables,
construction-staging areas, an operations-and-maintenance facility, a substation,
and up to four meteorological towers, on 13,500 acres of private land leased from
about 100 participating landowners. Champaign Wind’s application sought
approval to install one of seven proposed turbine models, and it explained that it
would make a final decision on which model to install closer to the time of
construction.
{¶ 4} Appellants, Union Neighbors United, a nonprofit corporation formed
to address issues relating to the placement of wind turbines in Champaign County,
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along with three individual neighbors of the proposed wind farm (collectively, the
“neighbors”), intervened to oppose Buckeye Wind II. Several local governmental
entities, including appellees Champaign County and three local townships
(collectively, the “county”), also intervened. Most of these entities and individuals
were parties in Buckeye Wind. Id. at ¶ 4.
{¶ 5} The parties conducted significant discovery, and board staff
investigated the wind farm’s potential impact. The board held a three-week hearing
in November and December 2012, and it later issued a 103-page opinion approving
Champaign Wind’s application and granting a certificate approving the
construction of Buckeye Wind II. The certificate was subject to 72 conditions
designed to mitigate known or foreseeable issues. Two of those conditions
prohibited Champaign Wind from constructing four of its proposed turbines
because their proposed location did not meet staff’s recommended setbacks. This
lowered the total number of turbines for the project to 52.
{¶ 6} After the board denied motions for rehearing, both the neighbors and
the county appealed to this court, raising 13 propositions of law between them.
Champaign Wind intervened to defend the board’s order.
Analysis
{¶ 7} Under R.C. 4906.12, we apply the same standard of review to power-
siting determinations that we apply to Public Utilities Commission orders. Buckeye
Wind, 131 Ohio St. 3d 449, 2012-Ohio-878, 966 N.E.2d 869, at ¶ 26. Under that
standard, we reverse, modify or vacate an order only when our review of the record
reveals that the order is unlawful or unreasonable. R.C. 4903.13; see also
Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St. 3d 530, 2004-
Ohio-6767, 820 N.E.2d 885, ¶ 50. We will not reverse or modify a board decision
as to questions of fact where the record contains sufficient probative evidence to
show that the board’s decision was not manifestly against the weight of the
evidence and was not so clearly unsupported by the record as to show
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misapprehension, mistake or willful disregard of duty. Monongahela Power Co. v.
Pub. Util. Comm., 104 Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29.
That is, we show deference to the board’s specialized expertise. Id. Appellants
bear the burden of demonstrating that the board’s decision is against the manifest
weight of the evidence or is clearly unsupported by the record. Id. We have,
however, “complete and independent power of review as to all questions of law” in
appeals from the board. Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St. 3d 466,
469, 678 N.E.2d 922 (1997).
{¶ 8} The board has exclusive authority to issue certificates of
environmental compatibility and public need for construction, operation, and
maintenance of “major utility facilities,” such as the proposed wind farm at issue
here. See Buckeye Wind at ¶ 2; R.C. 4906.01, 4906.03, and 4906.13. Under R.C.
4906.10(A), the board shall not issue a certificate unless it finds that the proposed
application meets eight substantive criteria. A majority of the county’s and
neighbors’ arguments relate to procedural or evidentiary errors they allege the
board committed during both discovery and the adjudicatory hearing. The county
and neighbors also, however, assert that the proposed wind farm did not meet the
following two criteria in R.C. 4906.10(A): that the “facility represents the minimum
adverse environmental impact” and that “the facility will serve the public interest,
convenience, and necessity.” R.C. 4906.10(A)(3) and (6).
{¶ 9} To organize the county’s and neighbors’ various propositions of law,
we have divided their arguments into four groups: (1) blade throw and setbacks, (2)
wind-turbine noise, (3) the public interest, convenience, and necessity prong of
R.C. 4906.10(A), and (4) other procedural and evidentiary arguments.
I. Propositions of law relating to blade throw and setbacks
{¶ 10} “Blade shear” or “blade throw” is potentially dangerous; it occurs
when a rotating wind-turbine blade or blade segment tears off and is thrown from
the turbine. The term “setback” refers to the distance between a turbine and a
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neighbor’s residence or property line. On appeal, the neighbors assert that they
were improperly prevented from obtaining discovery about or presenting evidence
on blade throw, and both the neighbors and the county assert that the setbacks the
board approved for Buckeye Wind II are not sufficient to serve the public interest
or to meet the other statutory criteria under R.C. 4906.10(A).
A. Neighbors’ Proposition of Law No. 2: whether the board
abused its discretion by quashing the neighbors’ third-party
subpoenas regarding blade-throw incidents
{¶ 11} In April 2012, two blades detached from a wind turbine at the
Timber Road II Wind Farm in Paulding County, and blade debris scattered around
the surrounding area. One month later, Champaign Wind filed its application in
this case and listed the turbine model used at Timber Road, the Vestas V100, as one
of the seven possible turbine choices for Buckeye Wind II.
{¶ 12} During discovery, the neighbors issued a subpoena duces tecum to
the owner and operator of Timber Road, EDP Renewables North America, L.L.C.
(“EDP”), requesting, among other things, (1) all documents relating to any blade
failure on any wind turbine operated by EDP and (2) more specifically, all
documents relating to the Timber Road blade-failure incident. The neighbors also
issued subpoenas to two wind-turbine manufacturers—Gamesa Wind US, L.L.C.
(“Gamesa”) and The General Electric Company, L.L.C. (“GE”)—because they
manufactured three of the turbine models that Champaign Wind had identified as
possible choices for Buckeye Wind II. The neighbors requested all documents
relating to any blade-failure incident on any model of the manufacturers’ turbines.
{¶ 13} After the neighbors issued these subpoenas, Champaign Wind
notified the board that due to the ongoing investigation into the Timber Road blade-
failure incident, it was no longer considering the Vestas V100 as a possible option
for Buckeye Wind II. EDP then moved to quash the neighbors’ subpoena, arguing
that the neighbors sought irrelevant information because Champaign Wind had
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dropped the Vestas V100 from consideration for Buckeye Wind II. EDP also
argued that the neighbors’ subpoena was unreasonable and oppressive. Gamesa
and Champaign Wind filed similar motions to quash the neighbors’ third-party
subpoenas. The board’s administrative-law judge (“ALJ”) quashed the neighbors’
entire subpoena to EDP on overbreadth and relevancy grounds, and the ALJ
quashed the subpoenas to GE and Gamesa in part, by requiring them to produce
documents only about blade failures involving the specific turbine models that
Champaign Wind was still considering for Buckeye Wind II.
{¶ 14} On appeal, the neighbors assert that the board abused its discretion
and violated their discovery rights by not allowing their third-party subpoenas to
EDP, Gamesa, and GE. The neighbors argue that the blade-throw threat to the
public is not unique to certain models of turbines and that information about other
blade throws, including one that occurred in Ohio, at Timber Road, was therefore
relevant to determining whether Champaign Wind was taking the most appropriate
safety precautions for Buckeye Wind II.
{¶ 15} We hold that the neighbors have not established reversible error.
Similar to a trial judge, the board “is granted very broad discretion in the conduct
of its hearings.” Greater Cleveland Welfare Rights Org., Inc. v. Pub. Util. Comm.,
2 Ohio St. 3d 62, 68, 442 N.E.2d 1288 (1982). Even if the board errs in a procedural
or evidentiary ruling, this court will not reverse the board’s order unless the error
prejudiced, i.e., meaningfully affected, the appellant. See id. And the appellant
“bears the ‘burden of demonstrating * * * that it has been or will be prejudiced by
the error.’ ” (Ellipses sic.) In re Complaint of Buckeye Energy Brokers, Inc. v.
Palmer Energy Co., 139 Ohio St. 3d 284, 2014-Ohio-1532, 11 N.E.3d 1126, ¶ 24,
quoting A.K. Steel Corp. v. Pub. Util. Comm., 95 Ohio St. 3d 81, 88, 765 N.E.2d
862 (2002). The neighbors have not shown that they were prejudiced by any errors
as to any category of documents requested in their third-party subpoenas.
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1. General (non-Timber Road-related) document requests
in the neighbors’ third-party subpoenas
{¶ 16} The board did not abuse its discretion by quashing the portions of
the neighbors’ subpoenas that contained general discovery requests directed to third
parties EDP, Gamesa, and GE. The requests sought “all documents” relating to
turbine-blade failures at “any wind turbine project” of EDP and “any wind turbine”
of Gamesa or GE. In the absence of time or design parameters, the ALJ reasonably
limited the neighbors’ discovery to turbines that might be used at Buckeye Wind
II. The board correctly found on review that these general requests were overbroad
and not designed to discover evidence relevant to the proposal that was before the
board. Accordingly, the board’s decision was a reasonable exercise of its
discretion.
2. Timber Road-related document requests in the
neighbors’ third-party subpoenas
{¶ 17} The neighbors’ document requests to EDP regarding the Timber
Road blade-failure incident identified a specific event at a specific place and time;
therefore, they were not overbroad. Instead, the board found that those requests
were irrelevant because they related to a turbine model that was not under
consideration in the proposed project. We hold that the neighbors have not
established that the board abused its discretion or that they were prejudiced by the
exercise of that discretion.
{¶ 18} First, the board’s regulations gave it the authority to quash a
subpoena “if it is unreasonable or oppressive.” See former Ohio Adm.Code 4906-
7-08(C) (repealed Dec. 11, 2015). Additionally, in board proceedings, “the Rules
of Civil Procedure should be used wherever practicable,” see R.C. 4903.082 and
4906.12, and Civ.R. 45(C)(3)(d) requires a trial judge to quash a subpoena if it
subjects a person to an “undue burden.” With its motion to quash, EDP submitted
a sworn affidavit from an in-house attorney who attested that 90 employees would
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be required to search the records in their possession for six to seven hours each in
order for EDP to respond to the neighbors’ document requests relating to the
Timber Road incident. The ALJ reviewed the relevant factors in the board’s
regulations and Civ.R. 45(C) and found that the neighbors’ requests were not
relevant. The ALJ therefore concluded that “it would be unreasonable to force
EDP, a nonparty, to expend its time and resources towards a request that is
unlimited in scope.” In response, the neighbors failed to resubmit a narrower
subpoena. Under these circumstances, we cannot hold that the board abused its
discretion.
{¶ 19} Second, the neighbors have failed to sufficiently articulate how the
board’s decision meaningfully affected them. The board ultimately allowed the
neighbors to present evidence at the hearing about the Timber Road blade-failure
incident. For example, the ALJ admitted into evidence a lengthy incident report
detailing the causes of the incident. On appeal, the neighbors argue that
notwithstanding introduction of the incident report, further discovery was necessary
because the “wind industry” has previously concealed information about turbine-
safety issues and their subpoenas were needed to determine independently whether
EDP had truthfully reported details about the Timber Road incident. The
neighbors’ arguments, however, amount to speculation, and we decline to reopen
this case to allow the neighbors to subpoena a nonparty’s internal documents solely
on that basis. See Elyria Foundry Co. v. Pub. Util. Comm., 114 Ohio St. 3d 305,
2007-Ohio-4164, 871 N.E.2d 1176, ¶ 35 (rejecting a prejudice claim that not only
was speculative but was supported by no argument or evidence as to how the
alleged error prejudiced the appellant). Accordingly, we reject this proposition of
law.
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B. Neighbors’ Proposition of Law No. 3: whether the board
abused its discretion by limiting the neighbors’ cross-
examination regarding the Timber Road incident
{¶ 20} During the hearing, the neighbors attempted to cross-examine a
board investigator, Andrew Conway, about board staff’s investigation into the
Timber Road blade-failure incident. The board, however, prohibited some of the
neighbors’ questions. In denying the neighbors’ motion for rehearing, it held that
questions regarding “[t]he distance [that] turbine blades traveled at a different wind
farm with a turbine model that is not under consideration in this proceeding” were
“irrelevant.”
{¶ 21} On appeal, the neighbors argue that the board abused its discretion
by prohibiting them from further cross-examining Conway about Timber Road.
We disagree. The record shows that the ALJ permitted Conway to testify on cross-
examination regarding the impact the Timber Road incident had on staff’s
recommendation for Buckeye Wind II. But the ALJ cut off the neighbors’
questioning when it veered into how Conway personally investigated the Timber
Road incident. The neighbors have not demonstrated that the ALJ’s decision was
an abuse of discretion. Nor have they established that Conway’s responses to their
questions about his investigation of an incident at a different wind farm would have
affected the board’s decision in this case. Thus, viewing the totality of the
circumstances, the neighbors have not proven that reversal is warranted merely
because they were unable to cross-examine Conway about his methodology for
investigating the Timber Road incident.
C. Neighbors’ Proposition of Law No. 4: whether the board
acted in an arbitrary manner by excluding some of the
neighbors’ proposed blade-failure evidence
{¶ 22} During the hearing, the neighbors offered the testimony of William
Palmer, an engineer who testified about the dangers of wind turbines. Through
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Palmer, the neighbors attempted to introduce the “Caithness database,” a 100-page
spreadsheet from the Caithness Windfarm Information Forum website. The
database includes details about various worldwide wind-turbine accidents,
primarily since the 1990s. The board excluded all evidence related to the Caithness
database on hearsay grounds, described it as similar to Wikipedia, in which “anyone
can author or edit content without peer review,” and further noted that the Caithness
website “disclaim[ed] any accuracy of the items contained within its database.”
{¶ 23} On appeal, the neighbors argue that nothing in the record supported
the board’s conclusion that the Caithness database was similar to Wikipedia or that
the website had a “disclaimer” of accuracy. The neighbors’ main argument,
however, is that the board used an “arbitrary double standard” when applying the
hearsay rule, because it excluded evidence about the Caithness database on hearsay
grounds but allowed Champaign Wind to introduce similar hearsay evidence.
{¶ 24} As an initial matter, we note that the board’s merit brief fails to cite
any record evidence supporting the board’s determination that the Caithness
database had a “disclaimer” of accuracy. Champaign Wind’s counsel mentioned
the “disclaimer” during oral argument at the board hearing, but opposing counsel’s
representations about the characteristics of a website are not record evidence. The
board must base its decisions in each case on the factual record before it. See Elyria
Foundry Co., 114 Ohio St. 3d 305, 2007-Ohio-4164, 871 N.E.2d 1176, at ¶ 31.
{¶ 25} Nevertheless, the neighbors have not proven the main thrust of this
proposition of law: that the board used an “arbitrary double standard” in admitting
hearsay testimony by other witnesses while excluding the Caithness database and
testimony about it on hearsay grounds. To support their claim, the neighbors cite
the testimony of staff witness Conway and Champaign Wind witness Robert Poore
as hearsay testimony that the board admitted, but neither Conway’s nor Poore’s
testimony supports the neighbors’ theory.
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{¶ 26} First, as to Conway, the neighbors failed to specifically identify him
in this argument in their motion for rehearing. In their rehearing application, the
neighbors raised a similar argument that the board acted inconsistently by excluding
the Caithness database but allowing the “same type of testimony” from two of
Champaign Wind’s witnesses—not staff witness Conway. Under R.C. 4903.10, an
application for rehearing “shall set forth specifically the ground or grounds on
which the applicant considers the order to be unreasonable or unlawful,” and “[n]o
party shall in any court urge or rely on any ground for reversal * * * not so set forth
in the application.” We “strictly construe[] the specificity test set forth in R.C.
4903.10.” Discount Cellular, Inc. v. Pub. Util. Comm., 112 Ohio St. 3d 360, 2007-
Ohio-53, 859 N.E.2d 957, ¶ 59, citing Consumers’ Counsel v. Pub. Util. Comm.,
70 Ohio St. 3d 244, 248, 638 N.E.2d 550 (1994). Because the neighbors did not
specifically rely on Conway’s testimony for this argument in their application for
rehearing, they cannot rely on his testimony here.
{¶ 27} Second, the board did not act arbitrarily by admitting Champaign
Wind witness Poore’s testimony while excluding evidence relating to the Caithness
database. Poore testified that based on his 30 years working in the wind industry,
blade throw is unusual and that he has never known it to injure anyone. On cross-
examination, he testified that he would generally hear about blade throws through
“word of mouth” or the media. The neighbors point to Poore’s statement that he
heard about blade-throw by “word of mouth” to argue that his testimony relied on
hearsay. Poore’s opinion on the rarity of blade throw, however, was based on his
30 years of personal experience in the industry. In contrast, with the exception of
Palmer, the record does not identify the individuals who submitted information to
the Caithness database. Palmer’s testimony was not similar to Poore’s. Palmer was
not involved in the wind industry, yet his testimony attempted to introduce specific
blade-throw events he had no personal knowledge of. Therefore the neighbors have
not established that the board acted in an arbitrary manner.
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D. Neighbors’ Proposition of Law No. 5 and county’s Second
Proposition of Law: whether the board’s approval of
Champaign Wind’s proposed setbacks was unreasonable or
unlawful
{¶ 28} At the time of the board hearing, the Ohio Administrative Code
provided that (1) the minimum distance between a turbine and a neighbor’s
property line was required to be at least 1.1 times the total height of the turbine and
(2) the minimum distance between a turbine and the nearest neighbor’s residence
was required to be 750 feet from the tip of the nearest turbine blade, at 90 degrees.
Ohio Adm.Code 4906-17-08(C)(1)(c).1 Under these regulatory requirements, the
minimum setbacks for Buckeye Wind II were 541 feet from a neighbor’s property
line and 919 feet from a neighbor’s residence. The board found that all approved
turbines for Buckeye Wind II adhered to these regulatory minimum-setback
requirements.
{¶ 29} On appeal, both the neighbors and the county assert that the board
should have increased the setbacks above the regulatory minimum requirements to
protect the public from the potential of blade throw and that because the board
failed to do so, the project does not serve the public interest or meet the other
substantive requirements for approval of a major utility facility in R.C. 4906.10(A).
Specifically, the neighbors argue that setbacks must match at least the distance that
blades can actually be thrown. Therefore, the neighbors propose a minimum
setback of 1,640 feet from a neighbor’s property line based on their claim that blade
pieces have traveled approximately that far in previous blade-throw incidents,
1
Since the board issued its order in this case, the General Assembly has amended Ohio law to make
setbacks a statutory requirement, see 2013 Am.Sub.H.B. No. 59 and 2014 Am.Sub.H.B. No. 483,
and the legislature increased the minimum setbacks above those that were established by
administrative rule. The new legislation, however, appears to grandfather in “existing certificates”
that were certified under the previous minimum setbacks. See R.C. 4906.201. None of the
appellants in this case specifically argue that setbacks for Buckeye Wind II failed to meet the
regulatory minimum setbacks that were in place at the time of the board’s order.
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including at Timber Road. The county argues that setbacks must be increased to
conform with the turbine manufacturers’ recommendations in their safety manuals.
The county relies on Gamesa’s safety manual, which states that in the event of a
fire near the turbine, the area around the turbine must be cordoned off at a radius of
1,300 feet.
{¶ 30} Whether the setbacks were sufficient to protect the public from
potential blade throw was an evidentiary issue, and we have “consistently refused
to substitute [our] judgment for that of the commission on evidentiary matters.”
Monongahela Power Co., 104 Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921,
at ¶ 29, citing A.K. Steel Corp., 95 Ohio St. 3d at 84, 765 N.E.2d 862. During the
hearing, witnesses for Champaign Wind and for the board staff testified that blade
throw is rare and that they had never known it to injure a member of the public.
The board also heard and reviewed evidence indicating that Champaign Wind
would minimize the already uncommon occurrence of blade throw by taking
various safety measures. And the board imposed conditions to further minimize
the risk of blade-throw-related injuries, including restricting public access in certain
areas and requiring warning signs.
{¶ 31} In addition, the board found that the neighbors’ proposed setbacks
were based in part on the unreliable testimony of a witness who claimed that he had
measured how far blade pieces were thrown at Timber Road. But according to the
board, this witness measured the distances four or five days after the incident
occurred and he acknowledged that wind may have blown the small fiberglass blade
pieces from their original landing spots. On these grounds, the board concluded
that this witness’s testimony was not reliable and that the Timber Road incident
report—which indicated that the largest blade piece had traveled 764 feet from the
failed turbine—was more credible.
{¶ 32} As to the county’s argument, the board found that the governmental
entities misunderstood the setbacks listed in the turbine-manufacturers’ safety
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manuals. The board interpreted the language in the manuals as referring to
recommended clearance areas in the event of temporary safety situations—akin to
a temporary evacuation for a gas leak—and that these clearance areas were not
meant to be permanent setback distances. In reaching this conclusion, the board
also cited staff witness Conway’s testimony that the regulatory minimum setbacks
exceeded the manufacturer’s recommended setbacks for the vast majority, if not
all, of the wind-turbine models. The county has failed to establish that the board’s
interpretation of the safety manuals was unreasonable.
{¶ 33} Finally, we note that these same setbacks were proposed and
approved in Buckeye Wind, and in that case, we concluded that ample evidence
supported the board’s approval of the setbacks. See Buckeye Wind, 131 Ohio St. 3d
449, 2012-Ohio-878, 966 N.E.2d 869, at ¶ 5, 34. Similarly here, the neighbors and
the county have failed to prove that the board’s adoption of the regulatory minimum
setbacks was against the manifest weight of the evidence or contrary to the criteria
in R.C. 4906.10(A).
II. Propositions of law relating to turbine noise
{¶ 34} In approving Buckeye Wind II, the board set noise limits to ensure
that turbine noise does not unreasonably annoy nonparticipating neighbors. Similar
to their propositions of law relating to blade throw, the neighbors object to the
board’s evidentiary and substantive decisions regarding turbine-noise levels.
A. Neighbors’ Proposition of Law 6: whether the board’s
approval of Champaign Wind’s proposed nighttime noise
limit was unreasonable or unlawful
{¶ 35} The board adopted Champaign Wind’s proposed nighttime noise
limit of 44 dBA (dBA is a scale that attempts to measure the loudness of sound
waves the human ear perceives as audible sound). The board based that limit on a
noise-assessment study by David Hessler, an acoustical engineer hired by
Champaign Wind. On appeal, the neighbors argue that the board’s decision was
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unreasonable and unlawful because (1) Hessler used an inappropriate metric to
calculate the noise limit and (2) any noise limit over 35 dBA will cause adverse
health effects to neighbors of the turbines. We conclude that the neighbors have
not met their burden for reversal on this issue.
{¶ 36} First, in the absence of any statutory guidance regarding how the
board should set noise regulations for a wind farm, we defer to the board regarding
the appropriate methodology for determining a noise limit. We have previously
explained that when a statute does not prescribe a particular formula or
methodology, the appropriate administrative agency has broad discretion in
deciding how to implement its duties. Payphone Assn. v. Pub. Util. Comm., 109
Ohio St. 3d 453, 2006-Ohio-2988, 849 N.E.2d 4, ¶ 25 (“When a statute does not
prescribe a particular formula, the PUCO is vested with broad discretion”), citing
Columbus v. Pub. Util. Comm., 10 Ohio St. 3d 23, 24, 460 N.E.2d 1117 (1984).
Here, based on evidence from Champaign Wind and the board staff, the board
found that Hessler’s noise assessment was reliable. As the board is the agency with
the expertise and statutory mandate to issue certificates siting major utility
facilities, its decision here is entitled to deference. See Payphone ¶ 25 (“As the
agency with the expertise and statutory mandate to implement the statute, the
PUCO is entitled to deference”), citing Constellation NewEnergy, 104 Ohio St. 3d
530, 2004-Ohio-6767, 820 N.E.2d 885, at ¶ 51, and Migden-Ostrander v. Pub. Util.
Comm., 102 Ohio St. 3d 451, 2004-Ohio-3924, 812 N.E.2d 955; see also In re
Application of Columbus S. Power Co., 134 Ohio St. 3d 392, 2012-Ohio-5690, 983
N.E.2d 276, ¶ 36 (“we will defer to the commission’s interpretation of a statute
‘where there exists disparate competence between the respective tribunals in
dealing with highly specialized issues’ ”), quoting Ohio Consumers’ Counsel v.
Pub. Util. Comm., 58 Ohio St. 2d 108, 110, 388 N.E.2d 1370 (1979).
{¶ 37} Second, the evidence here was mixed regarding whether turbine
noise causes health problems. The neighbors introduced studies attempting to show
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that turbine noise can cause sleep deprivation and other health problems. In
response, Champaign Wind presented an expert who criticized the neighbors’
evidence and concluded—based on numerous other studies—that although turbine
noise may be potentially distracting or annoying to some people, exposure to
turbine noise has not been scientifically demonstrated to harm humans. The board
concluded that the neighbors’ evidence “lack[ed] credibility” and therefore rejected
their claim of a causal connection between turbine noise and health disorders. On
appeal, the neighbors have not proven that the board’s decision was against the
manifest weight of the evidence. See Masury Water Co. v. Pub. Util. Comm., 58
Ohio St. 2d 147, 148, 389 N.E.2d 478 (1979) (“Where conflicting evidence is
presented to the commission with regard to a matter at issue, the commission’s
determination will not be disturbed unless the party who challenges that finding
demonstrates that it is manifestly against the weight of the evidence * * * ”).
B. Neighbors’ Proposition of Law No. 8: whether the board
abused its discretion by quashing the neighbors’ third-party
subpoena to EDP regarding turbine noise at Timber Road
{¶ 38} In their subpoena to EDP, the neighbors requested all records
relating to noise produced by any turbine at Timber Road and all records regarding
any noise complaints received about Timber Road. The ALJ quashed the subpoena
because it was “not tailored in any way to the proposed project.” On appeal, the
neighbors argue that the board abused its discretion and applied another “double
standard.” Specifically, the neighbors argue that the ALJ quashed their subpoena
seeking information about noise complaints at another Ohio wind farm on
relevancy grounds but that in approving Champaign Wind’s proposed noise limit,
the board expressly found it “relevant” that only two noise complaints had been
received at Ohio’s other wind farms.
{¶ 39} For its part, the board has failed to address this apparent
inconsistency in its evidentiary rulings: that is, the neighbors appear to be correct
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that the board prohibited them from discovering certain evidence from other wind
farms on relevancy grounds but then later relied on evidence from other wind farms
to support Champaign Wind’s proposed noise-limit methodology. Despite this
inconsistency, the neighbors have not demonstrated reversible error. In its motion
to quash the neighbors’ third-party subpoena, EDP argued that the neighbors’
Timber Road-related document requests were unduly burdensome and that Timber
Road’s siting certificate had already required EDP to submit all noise complaints
to the board.
{¶ 40} The neighbors failed to submit a narrower subpoena; nor have they
indicated on appeal what kind of noise documents from EDP would have changed
the outcome of this case. To obtain reversal, the neighbors must do more than
simply point out inconsistencies in the board’s evidentiary rulings. “Case law is
clear that an allegedly aggrieved party must show that it suffered prejudice from a
commission order to warrant reversal.” In re Complaint of Buckeye Energy
Brokers, 139 Ohio St. 3d 284, 2014-Ohio-1532, 11 N.E.3d 1126, at ¶ 22. Given
that the Timber Road noise complaints were publicly available through other
means, the neighbors have not carried their burden to demonstrate that they were
prejudiced by the board’s decision to quash the neighbors’ subpoena that sought
the same information from EDP.
C. Neighbors’ Proposition of Law No. 7: whether the board
erred by setting noise limits at residences rather than at
property lines
{¶ 41} As noted, the board approved Champaign Wind’s proposed noise
limits for Buckeye Wind II, one of which was measured at the nearest neighboring
residence. On appeal, the neighbors argue that noise limits should be measured at
a neighbor’s property line, rather than at the residential structure, so that neighbors
can enjoy all of their property free from wind-turbine noise.
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{¶ 42} Due to the absence of any statutory or regulatory guidance, this is
another issue on which we must defer to the board. In rejecting the neighbors’
argument, the board cited the testimony of Hessler, Champaign Wind’s noise
expert, who concluded that the “intent of a noise regulation is to control noise where
people spend the majority of their time, particularly at night.” Further, the board
found that the inclusion of a noise-complaint resolution process will ensure that the
proposed facility will not compromise property owners’ use and enjoyment of their
entire property. Accordingly, we conclude that record evidence supports the
board’s decision and that the policy issue of whether noise regulations should be
measured at residences or property lines is best decided by the regulatory agency
assigned to implement such decisions.
D. Neighbors’ Proposition of Law No. 9: whether the board
abused its discretion by refusing to reopen the hearing to
admit new evidence about low-frequency noise
{¶ 43} Low-frequency noise, or infrasound, is not typically perceived or
interpreted by humans as sound—hence it is not meaningfully measured by the
dBA scale. In its application, Champaign Wind indicated that modern wind
turbines “do not generate low frequency or infrasonic noise to any significant
extent.” However, at the hearing, Champaign Wind’s noise expert, Hessler,
testified that he could not rule out low-frequency noise as a potential problem at
wind farms, and he indicated that he was studying low-frequency noise at a wind
farm in Shirley, Wisconsin. About a month after the board hearing—but before the
board issued its final order—the Wisconsin Public Service Commission released a
report on the study mentioned by Hessler during his testimony, and the neighbors
moved to reopen the record to introduce the report into evidence. The board
refused, finding that the information was “cumulative” and that the neighbors had
“ample opportunity” to question Hessler about the findings of the Wisconsin study
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during the hearing. On appeal, the neighbors argue that the board abused its
discretion in refusing to reopen the record.
{¶ 44} Although we disagree with the board’s rationale for denying the
neighbors’ motion—the neighbors did not have “ample opportunity” to question
Hessler about the Wisconsin report because the study had not yet been completed
at the time of the board hearing—we ultimately conclude that the neighbors have
not demonstrated reversible error. The neighbors argue that the Wisconsin report
on low-frequency noise “eviscerates” the board’s adoption of Champaign Wind’s
proposed nighttime noise limit for Buckeye Wind II, but they do not adequately
explain why that is the case. It remains unclear how reopening the hearing would
have had any impact on the board’s decision. Accordingly, the neighbors have
failed to show that the board’s refusal to reopen the record had any prejudicial
effect.
III. Propositions of law relating to the “public interest,
convenience, and necessity” prong of R.C. 4906.10(A)(6)
A. Neighbors’ Proposition of Law No. 1: whether the board
acted unlawfully or unreasonably by relying on an allegedly
unconstitutional statute
{¶ 45} When the board approved Champaign Wind’s application, Ohio law
required that a portion of the electricity that electric companies sold to their Ohio
customers come from renewable-energy resources, and half of that mandate had to
be met from facilities located within Ohio. Former R.C. 4928.64(B) and (C), 2012
Am.Sub.S.B. No. 315; see also R.C. 4928.01(A)(37) (defining “renewable energy
resource” to include “wind energy”). We refer to the latter requirement as the “in-
state renewable-energy mandate.” In its order, the board concluded that a “potential
benefit” of approving the Buckeye Wind II facility was that Ohio electric
companies could contract with the wind farm to fulfill their in-state renewable-
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energy mandate, which “add[ed] support” to a finding that the project served the
public interest, convenience, and necessity under R.C. 4906.10(A)(6).
{¶ 46} On appeal, the neighbors argue that the “only basis” for the board’s
finding that the proposed facility met the requirements of R.C. 4906.10(A)(6) was
that it helped electric companies meet their in-state renewable-energy mandate. But
that mandate, according to the neighbors, is unconstitutional because the
geographic preference it contains is a per se violation of the Dormant Commerce
Clause. Thus, the neighbors argue that the board erred by relying on an
unconstitutional statute.
{¶ 47} It is unnecessary to opine on the constitutionality of the in-state
renewable-energy mandate to resolve this proposition of law because the
neighbors’ argument rests on an inaccurate premise. As an initial matter, we note
that in 2014—after the board issued the order on appeal—the General Assembly
eliminated the in-state renewable-energy mandate. 2014 Sub.S.B. No. 310. More
relevant for present purposes, however, the in-state renewable-energy mandate was
not the “only basis” for the board’s finding that the proposed project met the public
interest, convenience, and necessity prong. Indeed, the board’s order included
several factors that the board considered under this prong. For example, the order
noted that the renewable energy generated by the proposed wind farm would
“benefit the environment and consumers,” and the board found that the project was
“designed to have minimal aesthetic impact on the local community.” In its order
denying rehearing, the board noted that even if the in-state renewable-energy
mandate were not at issue, the proposed wind farm served “the purpose of
delivering energy to Ohio’s bulk power transmission system in order to serve the
generation needs of electric utilities and their customers.”
{¶ 48} Thus, the neighbors’ argument here relies on an incorrect
assumption, and we can reject this proposition of law on that basis alone.
Accordingly, it is not necessary to determine whether the now repealed in-state
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renewable-energy mandate violated the Dormant Commerce Clause. State ex rel.
DeBrosse v. Cool, 87 Ohio St. 3d 1, 7, 716 N.E.2d 1114 (1999) (“Courts decide
constitutional issues only when absolutely necessary”), citing State ex rel. BSW
Dev. Group v. Dayton, 83 Ohio St. 3d 338, 345, 699 N.E.2d 1271 (1998).
B. County’s First Proposition of Law: whether the board
required Champaign Wind to post sufficient financial
assurance to cover decommissioning costs
{¶ 49} The board ordered that prior to construction, Champaign Wind must
post a decommissioning bond pursuant to a formula proposed by board staff and
used in other wind-farm cases. Decommissioning bonds ensure that adequate funds
exist to remove the turbines when no longer in use. The board’s formula is different
from the decommissioning plan approved for the original Buckeye Wind Farm, and
according to Champaign Wind, the new formula will result in a much higher
decommissioning bond than the bond that the board approved in the Buckeye Wind
case.
{¶ 50} On appeal, the county argues that the project does not serve the
public interest, convenience, and necessity because the board’s formula to calculate
the bond may not adequately cover the total costs of decommissioning. The county,
however, points to no legal authority that speaks to how the board should calculate
a decommissioning bond. In the absence of other legal authority, we reiterate that
“[a]ny lack of statutory guidance on that point should be read as a grant of
discretion.” In re Application of Columbus S. Power Co., 128 Ohio St. 3d 512,
2011-Ohio-1788, 947 N.E.2d 655, ¶ 68; see also Payphone Assn., 109 Ohio St. 3d
453, 2006-Ohio-2988, 849 N.E.2d 4, at ¶ 25 (“When a statute does not prescribe a
particular formula, the PUCO is vested with broad discretion”). Thus, because the
county neither cites legal authority prohibiting the board’s approach nor
persuasively explains how the board’s formula is objectively unreasonable, we
reject its argument.
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IV. Propositions of law related to procedural and evidentiary
issues
A. Neighbors’ Proposition of Law No. 10: whether the board
abused its discretion by prohibiting discovery of and cross-
examination on drafts of the application and staff report
{¶ 51} During discovery, the neighbors requested that Champaign Wind
produce “drafts and preliminary versions” of its application. Similarly, during the
cross-examination of staff witness Conway, the neighbors asked several questions
about a draft version of the staff report. The board excluded this evidence, finding
that draft versions of the application and staff report were not relevant.
{¶ 52} On appeal, the neighbors argue that the board abused its discretion.
To support their argument that the draft applications and related testimony were
relevant, the neighbors cite Shore v. Best Cuts, Inc., 8th Dist. Cuyahoga No. 77340,
2000 WL 1754007 (Nov. 30, 2000), a case upholding a trial judge’s finding that
drafts of a document were relevant for discovery purposes. Shore, however, is
easily distinguishable from the situation presented here. In Shore, the court held
that drafts of a lease agreement were relevant to determining the meaning of a
disputed portion of the lease. Id. at *2. Here, by contrast, there are no ambiguous
terms in Champaign Wind’s application or in the staff report that might be
explained by comparing them with an earlier draft. Instead, the neighbors requested
draft versions of documents based on the possibility that earlier drafts may have
contradicted the final versions. The neighbors have failed to establish why potential
contradictions between a draft and final version would be relevant to the board’s
consideration, which is based on the developer’s final application. Accordingly,
we reject this proposition of law.
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B. County’s Third Proposition of Law: whether the county’s
due-process rights were violated
{¶ 53} At the hearing, a director of Champaign Wind’s parent company
introduced Champaign Wind’s application into evidence. The county objected on
hearsay grounds, arguing that the witness did not have the requisite knowledge and
expertise regarding every study and report in the application. The county made a
similar objection during its cross-examination of Champaign Wind’s ecological
consultant, who admitted that although he managed and reviewed a transportation
study for the proposed project, he did not personally conduct it. The board
overruled the county’s objections.
{¶ 54} On appeal, the county argues that the board failed to afford it due
process because it had no meaningful opportunity to cross-examine Champaign
Wind’s experts. Specifically, the county now asserts that both witnesses were
unable to answer “many” questions and that Champaign Wind’s application and the
transportation study were therefore improperly admitted into evidence. The county,
however, has not carried its burden of demonstrating error.
{¶ 55} For example, the county repeats throughout its merit brief that the
first witness could not answer “many” questions. The witness, however, was cross-
examined for two days, and yet the county cites only two pages of testimony, in
which the witness’s qualifications to testify about acoustic issues are discussed but
in which the witness does not refuse to answer any questions for lack of knowledge.
The county cannot expect the court to peruse over 400 pages of cross-examination
testimony to find support for its claim. Failing to cite the record is a fatal error.
See Ohio Consumers’ Counsel v. Pub. Util. Comm., 125 Ohio St. 3d 57, 2010-Ohio-
134, 926 N.E.2d 261, ¶ 52.
{¶ 56} Additionally, the county provides no caselaw to support the position
that a party’s due-process rights are violated if an opposing party’s expert cannot
answer all questions on cross-examination. Rather, the failure to answer affects the
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expert’s credibility. If the county had additional questions that these individuals
could not address, it could have subpoenaed other witnesses. These circumstances
do not constitute a due-process violation.
Conclusion
{¶ 57} As in Buckeye Wind, 131 Ohio St. 3d 449, 2012-Ohio-878, 966
N.E.2d 869, the county and the neighbors have not demonstrated that the board’s
decision was unreasonable or unlawful nor that the board’s discovery and
evidentiary rulings meaningfully affected the outcome. The county and the
neighbors were active participants at every stage of the board proceeding. Indeed,
36 witnesses testified at the three-week hearing, with the neighbors presenting six
witnesses and the county presenting four. The parties introduced 122 exhibits, and
the hearing resulted in a 3,010-page transcript. The board issued a comprehensive
opinion reviewing and addressing all of the parties’ arguments. The county and the
neighbors have not proven that it is necessary to reopen the record to engage in
more discovery or to hear more evidence. Accordingly, we affirm the board’s
order.
Order affirmed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, and O’NEILL, JJ., concur.
KENNEDY, J., dissents with an opinion that PFEIFER, J., joins.
_________________
KENNEDY, J., dissenting.
{¶ 58} Respectfully, I dissent. In affirming the decision of the Power Siting
Board (the “board”), the majority concludes that appellants failed to demonstrate
that the “board’s decision was unreasonable or unlawful.” Majority opinion at
¶ 57. In my view, the board’s decision to grant the certificate was unreasonable
and unlawful because the blade-throw setbacks that the board adopted and the
default method to calculate background noise in a rural area that the board approved
are unsupported by the record and are against the manifest weight of the evidence.
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January Term, 2016
Therefore, I would reverse the decision of the board and remand for further
proceedings consistent with this opinion.
{¶ 59} As the majority correctly states, this court has affirmed prior board
decisions granting certificates to wind farms. However, this case represents the
first time we have considered setback limits since a turbine at an Ohio windfarm
failed and threw a blade and is the first case in which a party opposing a certificate
has offered expert opinions on the correct method to calculate background noise in
a rural area.
I. Facts
{¶ 60} While I agree with the statement of facts set forth in the majority
opinion, there are other important facts that should be considered.
A. Turbines under consideration
{¶ 61} On May 15, 2012, Champaign Wind filed an application to construct
the proposed wind farm. The application originally asked the board to allow
Champaign Wind to choose from among seven different proposed wind-turbine
models. All of the turbines under consideration are manufactured to conform to
international standards that are meant to prevent blade failures. All of the turbines
also have the same safety systems, including independent braking systems, ice-
detection software, and alarms that trigger an automatic shutdown. Moreover, in
the opinion of the experts, all of the turbines under consideration are similar and
share the same risk of malfunctioning due to blade shear, lightning, icing, and user
error.
B. Danger of blade throws
{¶ 62} The certificate as approved by the board permits turbines to be built
within 919 feet from nonparticipating property owners’ homes and 541 feet from
their property lines. When these setbacks were approved, the board relied on the
minimum-setback calculation then set forth in R.C. 4906.20, which the board had
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adopted as a rule under its rulemaking authority. Former R.C. 4906.20(B)(2), 2008
Am.Sub.H.B. No. 562; Ohio Adm.Code 4906-17-08(C)(1)(c)(i) and (ii).
{¶ 63} The minimum-setback standard was the same standard the board
used when the “Timber Road” certificate was granted. After construction of the
Timber Road facility, a Vestas V100 turbine at that facility malfunctioned. The
blade-failure incident escalated when the operator, located in the state of Oregon,
remotely restarted the wind turbine after the initial blade failure had caused the
turbine to automatically shut down, which caused debris to be thrown across the
landscape. According to an expert who testified before the board, operator error—
like remotely restarting a damaged turbine—is the leading cause of wind-turbine
failure even where computerized protection systems are in place.
{¶ 64} The board found credible the evidence that the blade failure at
Timber Road caused the turbine to throw a piece of its blade weighing around six
and one-half pounds a distance of 764 feet. After analyzing the circumstances of
that incident, a safety expert testified that in his opinion, the six-and-one-half-pound
piece of blade that was thrown 764 feet had the same force at impact as a 40-pound
block of concrete falling from an eight-story building.
{¶ 65} After the blade throw incident but while the application for this
certificate was pending, Champaign Wind withdrew the Vestas V100 turbine from
consideration for this project. Despite that withdrawal, the experts for Champaign
Wind and the parties opposing the certificate agreed that the characteristics of the
Vestas V100 turbine that threw the blade were not unique to that turbine.
C. Method used to calculate background noise
{¶ 66} The certificate as approved provides for a nighttime-noise-level
design goal of 44 dBA. (As the majority notes, “dBA is a scale that attempts to
measure the loudness of sound waves the human ear perceives as audible sound.”
Majority Opinion at ¶ 35). However, according to Raymond Strom, a board staff
member, Champaign wind is not required to keep nighttime noise at or below that
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January Term, 2016
level. Despite the lack of a mandatory requirement, all the parties agreed that the
World Health Organization (“WHO”) has “determined that a nighttime sound level
of 40 dBA is the threshold at which sound goes from being relatively unnoticed to
intrusive and annoying.” Acoustical engineers for Champaign Wind and for
appellant Union Neighbors United (“UNU”) agreed that the maximum noise level
that a nonparticipating land owner should experience is the preexisting background
noise level plus five dBA.
{¶ 67} There are multiple methods that can be used to calculate background
noise, two of which are at issue in this case: the Leq method and the L90 method.
The Leq method is the de facto state standard in Ohio because without any expert
challenge to the method, it was used to evaluate the five previous wind-farm
certificates approved by the board. However, all of the acoustical engineers who
testified in this case agreed that the Leq standard of measure is unsuitable for
calculating background noise for wind-turbine farms located in rural areas.
{¶ 68} Champaign Wind’s acoustical engineer, David Hessler, testified that
this was the first time in his 21 years of professional experience that he had used
the Leq method to calculate background noise in a rural area. In his expert opinion,
the Leq method is unsuitable for calculating background noise for wind-turbine
farms in a rural area because it “is extremely sensitive to contaminating noise
events.” Richard James, the acoustical expert hired by UNU, agreed, stating that
the L90 method is the generally accepted metric to measure background noise
around the United States and the world.
{¶ 69} Using the Leq method, Hessler measured the nighttime background
noise at the site of the proposed wind farm as 39 dBA. Therefore, using the Leq
method, the noise design goal for this facility would be 39 dBA plus 5 dBA, for a
total intended nighttime noise level of 44 dBA.
{¶ 70} However, using the “appropriate” engineering method of L90,
Hessler measured the nighttime background noise as 30 dBA. Therefore, using the
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L90 method, the noise design goal for this facility would be 30 dBA plus 5 dBA,
for a total intended nighttime noise level of 35 dBA.
{¶ 71} Strom, the board’s staff member who supervised the noise portion of
the board’s report, admitted that he is not an acoustical engineer—he is a botanist.
He has never received any specialized training in acoustics and has never conducted
a noise model. He testified that 16 of the 52 turbines that the board’s certificate
allows Champaign Wind to construct are predicted to exceed the 44 dBA
maximum. While the turbines can be operated in a low-noise-level mode, that is
not a requirement of the certificate.
{¶ 72} Instead, the certificate requires Champaign Wind to implement a
complaint-resolution process for residents affected by the wind farm. However, as
Strom testified, the changing conditions of the atmosphere, like wind shear,
atmospheric discontinuity, and temperature inversions, can lead to variations in the
amount of noise people living near the turbines hear at any given time. It is
therefore possible that the environmental conditions that exist at the time a
complaint is generated will be different from the environmental conditions at the
time of any subsequent testing.
{¶ 73} Contrary to the expert opinions of the acoustical engineers, the board
continued to use the background-noise measurement based on the Leq standard,
concluding that “UNU fails to provide any rationale for us to depart from past board
precedent.”
II. Analysis
A. Standard of review
{¶ 74} I agree with the majority that appellants must overcome a high
hurdle to demonstrate that the board acted unreasonably or unlawfully. “The
appellant bears the burden of demonstrating that the commission’s decision is
against the manifest weight of the evidence or is clearly unsupported by the record.”
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January Term, 2016
In re Application of Ohio Power Co., 140 Ohio St. 3d 509, 2014-Ohio-4271, 20
N.E.3d 699, ¶ 14. While this court has been reluctant to overturn the decisions of
the Public Utilities Commission (the “commission”) or the board based on this
standard, the standard the appellants must meet is not impossible to overcome.
{¶ 75} We have held that the commission acts unlawfully when its findings
of fact are not supported by the record. See Ideal Transp. Co. v. Pub. Util. Comm.,
42 Ohio St. 2d 195, 196, 199, 326 N.E.2d 861 (1975). Moreover, “ ‘ “[a] legion of
cases establish that the commission abuses its discretion if it renders an opinion on
an issue without record support.” ’ ” (Brackets sic.) Indus. Energy Users-Ohio v.
Pub. Util. Comm., 117 Ohio St. 3d 486, 2008-Ohio-990, 885 N.E.2d 195, ¶ 30,
quoting Tongren v. Pub. Util. Comm., 85 Ohio St. 3d 87, 90, 706 N.E.2d 1255
(1999), quoting Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St. 3d 163,
166, 666 N.E.2d 1372 (1996). We apply these same standards to decisions by the
board. In re Application of Buckeye Wind, L.L.C., 131 Ohio St. 3d 449, 2012-Ohio-
878, 966 N.E.2d 869, ¶ 26.
B. Chapter 4906 of the Revised Code provides the mandatory
criteria for issuance of a certificate
{¶ 76} The protection of property rights is of fundamental importance to
our western tradition of law. See 6 The Writings of James Madison 101-103 (Hunt
Ed.1906). Government is instituted to serve that end. Id. at 102. “The right of
private property being, therefore, an original right, * * * [it is] one of the primary
and most sacred objects of government to secure and protect * * *.” Bank of Toledo
v. Toledo, 1 Ohio St. 622, 632 (1853).
{¶ 77} The General Assembly enacted the statutory scheme in Chapter 4906
of the Revised Code to balance the rights of property owners interested in engaging
in the production of alternative wind energy against the rights of nonparticipating
property owners to be free from the adverse environmental impacts of the
participating property owners’ activities. See R.C. 4906.10. To that end, the
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General Assembly created eight criteria in R.C. 4906.10(A)(1) through (8) and
mandated that certificates “shall not” be granted unless all of them are met. Two
of the eight criteria direct the board to determine the “nature of the probable
environmental impact” and to ensure “that the facility represents the minimum
adverse environmental impact * * *.” (Emphasis added.) R.C. 4906.10(A)(2) and
(3).
{¶ 78} The General Assembly did not define the term “environmental” for
purposes of these requirements. See R.C. 4906.01 (setting forth definitions
applicable for purposes of Chapter 4906 of the Revised Code). Because the term
“environmental” has not acquired a technical or particular meaning by legislative
definition or otherwise, the word should be given its usual and ordinary meaning.
R.C. 1.42; Weaver v. Edwin Shaw Hosp., 104 Ohio St. 3d 390, 2004-Ohio-6549,
819 N.E.2d 1079, ¶ 12. Environmental is the adjective form of the noun
environment, which has been defined as “[t]he physical conditions of a particular
place where a living person or thing exists.” Black’s Law Dictionary 651 (10th
Ed.2014).
{¶ 79} The General Assembly gave the board rule-making authority to
govern wind farms and statutorily established minimum setbacks to be incorporated
into the rule, mandating that “[t]he setback shall apply in all cases except those * * *
in which, in a particular case, the board determines that a setback greater than the
minimum is necessary.” (Emphasis added.) R.C. 4906.20(B)(2)(a) and (c).
{¶ 80} While Champaign Wind’s application for a certificate was pending,
the General Assembly enacted new statutory setbacks for wind farms that apply
prospectively for all new or amended certificates. R.C. 4906.201, enacted in 2013
Am.Sub.H.B. No. 59 (effective Sept. 29, 2013) and amended in 2014 Am.Sub.H.B.
No. 483 (effective Sept. 15, 2014). The new statutory setbacks are 1,125 feet from
the nearest adjacent property line. R.C. 4906.20(B)(2)(a).
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January Term, 2016
C. Proposed setbacks for blade throws are unlawful and
unreasonable
{¶ 81} In 2012, we approved Buckeye Wind’s application for a wind farm
with a setback of 541 feet from the property line. See In re Application of Buckeye
Wind, 131 Ohio St. 3d 449, 2012-Ohio-878, 966 N.E.2d 869, at ¶ 5, 37. In part, we
relied on the record in that case, which stated that the farthest a shorn blade could
be thrown was 500 feet, even though that claim was based on data from a turbine
that was smaller than the one approved in the certificate. Id. at ¶ 50. (Lundberg
Stratton, J., dissenting). At the time of certification, no calculation existed for how
far a blade might be thrown from the turbines under consideration. Id. And the
board staff lacked “sufficient competence in physics even to attempt to calculate
the distance a blade could fly.” Id.
{¶ 82} Today, we know that a wind turbine like the Vestas V100 can throw
a shorn blade up to 764 feet and that the blade can have the same force on impact
as a 40-pound block of concrete falling from an eight-story building. The fact that
Champaign Wind removed the Vestas V100 model turbine from consideration in
this matter is of no consequence.
{¶ 83} Undisputedly, all of the turbines under consideration are similar. All
of the turbines were manufactured to conform to international standards designed
to prevent blade failures, and all of them employ the same safety features of
independent braking, ice-detection software, and alarms that trigger an automatic
shutdown. Therefore, all of the turbines should have the same risk of
malfunctioning due to blade throw, lightning, icing, and user error.
{¶ 84} Human error is the leading cause of wind-turbine malfunction, and
this danger will always be present. Moreover, like the Ohio facility at which the
shorn blade travelled 764 feet after an operator located in Oregon remotely restarted
the turbine after an automatic shutdown, the facility approved in this certificate will
be capable of being operated from an undisclosed remote location.
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{¶ 85} The General Assembly mandated the establishment of minimum
setbacks that must be applied except in “particular case[s]” where “a setback greater
than the minimum is necessary.” R.C. 4906.20(B)(c). The board found staff
testimony that a shorn blade was thrown 764 feet from a Vestas V100 turbine to be
credible. Even if blade throws are rare, the General Assembly has mandated that
before the board exercises its authority to grant a certificate, it must make a
determination of the “probable environmental impact” and must ensure that the
facility will create “the minimum adverse environmental impact.” R.C.
4906.10(A)(2) and (3).
{¶ 86} It is undisputed that the remaining six turbine models approved in
the certificate are similar to the Vestas V100 turbine in size, safety features, and
capability for remote operation. Therefore, the probable environmental impact of
a shorn blade thrown from one of the approved models includes debris flying up to
764 feet from the turbine. In this particular case, the “minimum adverse
environmental impact” will likely be felt up to 764 feet from the property line. The
supposed rarity of blade throws alone is not sufficient to overcome the statutory
mandate.
{¶ 87} The General Assembly created a statutory minimum setback but
acknowledged that in particular cases, “greater than the minimum” may be
necessary. R.C. 4906.20(B)(2)(c). In this case, the board’s continued use of the
minimum property-line setback of 541 feet fails to minimize the adverse effect that
a blade throw can have on the property of a nonparticipating owner. Therefore, the
setbacks approved in the certificate are unreasonable because they are against the
manifest weight of the evidence. Adequate setbacks based on the actual evidence
regarding blade throw are the only way to ensure that the facility complies with the
law and has a “minimum adverse environmental impact.”
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D. Method used to measure background noise is unlawful and
unreasonable
{¶ 88} In the five prior instances in which the board granted wind-farm
certificates based on the use of the Leq standard to measure background noise in a
rural area, the use of that method was not challenged and no expert acoustical-
engineering testimony on the correct method was presented.
i. The acoustics experts agree: the proper method to measure background
noise is L90
{¶ 89} The board’s reliance on the Leq method to determine preexisting
background noise levels at the wind-farm site is unsupported by the record. UNU’s
acoustical engineer, James, testified that Leq is not the appropriate method with
which to calculate background noise in a rural area because it provides an inflated
background-noise measurement. Champaign Wind’s acoustical expert, Hessler,
agreed. In Hessler’s 21 years of professional experience, this case was the first
time that he had used the Leq method to calculate background noise in a rural area.
In his expert opinion, the Leq standard is “unsuitable for wind turbine background
surveys in rural areas” because it is “extremely sensitive to contaminating noise
events.” He only applied the Leq method here because it was the method that had
previously been used in Ohio and he believed it to be the “de facto State standard.”
{¶ 90} The majority correctly states that the method used to calculate
background noise is not mandated by either statute or regulation and that the board
has broad discretion absent a statutory or regulatory mandate. See Payphone Assn.
v. Pub. Util. Comm., 109 Ohio St. 3d 453, 2006-Ohio-2988, 849 N.E.2d 4, ¶ 25.
However, the board’s continued use of an unsupported acoustical method to
calculate background noise in a rural area in light of expert testimony that that
method is unsuitable is unreasonable.
{¶ 91} This court has given deference to the board’s resolution of technical
issues associated with approving certificates. See Office of Consumers’ Counsel v.
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Pub. Util. Comm., 58 Ohio St. 2d 108, 110, 388 N.E.2d 1370 (1979). However, a
prerequisite to this court’s reliance on an agency’s expert conclusions is that the
agency has actual expertise in the area. See id. at 110 (this court will defer to an
agency when based on its expertise, the agency is more competent to deal with a
highly specialized area).
{¶ 92} In this case, however, Strom, the board’s staff member who was
responsible for supervising and writing the noise section of the board report, is not
an acoustical engineer, has no specialized formal training in acoustics, and has
never conducted a noise model. His master’s degree is in botany.
{¶ 93} The board’s conclusion that the Leq method is reliable based on
Strom’s testimony is against the manifest weight of the evidence, and the majority’s
deference to that conclusion is misplaced. All of the acoustical experts, including
Hessler, testified that the Leq method was unsuitable to calculate background noise
in a rural area. The only reason the Leq method was used in this certification
process is that it was the standard that the board had previously used. The board,
in issuing this certificate, has chosen to rely on the Leq metric notwithstanding the
lack of agency expertise in acoustical engineering. Therefore, no deference should
be afforded to the board’s conclusion.
{¶ 94} The board characterized the argument over using the Leq method or
the L90 method as an argument over using a good method or a better method. This
characterization ignores the fact that both of the expert acoustical engineers in this
case testified that the Leq method is unsuitable for measuring background noise in
a rural area and that the L90 method is the correct standard of measure. When the
record fails to support the board’s conclusions, the decision of the board is
unreasonable and the appellant’s burden has been met. See Monongahela Power
Co. v. Pub. Util. Comm., 104 Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921,
¶ 29.
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January Term, 2016
ii. Continued use of the Leq method violates R.C. 4906.10(A)(3)
{¶ 95} The parties’ experts agreed that the maximum amount by which the
wind farm should increase the preexisting background noise level is 5 dBA.
Therefore, the disagreement over which method should be used to calculate the
background noise level in a rural area is fundamental to determining the “probable
environmental impact” and to ensuring that a “minimum adverse environmental
impact” occurs. See R.C. 4906.10(A)(2) and (3).
{¶ 96} Using the acoustically sound L90 method, the experts agree that the
background noise level would be 30 dBA. Therefore, when the additional 5 dBA
maximum increase is added, the true maximum noise level for the facility should
be 35 dBA. Use of the unsuitable Leq method permits the facility to generate an
additional 9 dBA, which raises the maximum noise-level threshold for the facility
to 44 dBA at nonparticipating residences. But even this is not the maximum level
of noise that the facility will emit.
{¶ 97} Strom, the board’s staff member, testified that the board knows that
16 of the 52 turbines approved in the certificate are predicted to generate a noise
level that will exceed 44 dBA and that when those turbines operate for an
undetermined “short period” at night exceeding the 44 dBA level, it will not violate
the terms of the certificate. While the noise level can be reduced by operating the
turbines in quiet mode, that is not a requirement of the certificate.
{¶ 98} The board recognized that “as both UNU and Champaign
acknowledge, WHO determined that a nighttime sound level of 40 dBA is the
threshold at which sound goes from being relatively unnoticed to intrusive and
annoying.” Therefore, the negative environmental impact of continued use of the
Leq method is not probable—it is certain. See R.C. 4906.10(A)(2).
{¶ 99} One of the criteria that the General Assembly requires for granting a
wind farm certificate is that the facility represents a “minimum adverse
environmental impact.” R.C. 4906.10(A)(3). Granting a certificate, as the board
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SUPREME COURT OF OHIO
did here, on the basis of an unsuitable method to calculate background noise in a
rural area that permits the facility to emit a noise level that is known to exceed
health limits, where the noise becomes “intrusive and annoying,” is not only
unreasonable, it is unconscionable and unlawful.
{¶ 100} The manifest weight of the evidence demonstrates that the L90
metric is the correct method to calculate background noise in a rural area. The
board’s decision to continue to use the Leq method to measure noise in a rural area
is unlawful because it fails to comply with the General Assembly’s mandate that
the facility have a “minimum adverse environmental impact” on nonparticipating
residents. See R.C. 4906.10(A)(3).
iii. A complaint process cannot cure the board’s failure to comply with R.C.
4906.10(A)(3)
{¶ 101} Without an explanation as to why it was permitting the facility to
operate at a noise level that is known to be adverse to human health, the board
decided to require a complaint process. While it is within the sound discretion of
the board to modify the terms of a certificate, in accordance with R.C. 4906.10(A),
the addition of a new requirement cannot cure the issuance of a certificate that
violates the “minimum adverse environmental impact” requirement contained in
R.C. 4906.10(A)(3). The statutory scheme as enacted by the General Assembly
does not grant the board authority to mitigate an adverse environmental impact,
only to prevent it.
{¶ 102} The General Assembly requires the board to evaluate the probable
environmental impact and to limit the negative effects of the facility prior to
awarding a certificate. The board cannot remedy a known adverse environmental
impact through a complaint process. The limitations on the complaint process
employed by the board and the difficulty in administering that process demonstrate
why the General Assembly requires that the facility represent a “minimum adverse
environmental impact” prior to the certificate being issued.
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January Term, 2016
{¶ 103} As Strom testified, he did not know whether the filing of a
complaint means that further testing will occur. Even if testing were initiated after
the filing of every complaint, environmental conditions that can affect the amount
of noise residents hear may not be the same at the time that a test is administered,
meaning that the test might appear to disprove what was in fact a legitimate noise
complaint, thereby leaving nonparticipating property owners no apparent recourse
to address unhealthy noise levels that unreasonably infringe on their property rights.
III. Conclusion
{¶ 104} Respectfully, I dissent. In affirming the decision of the Power
Siting Board, the majority concludes that the appellants failed to demonstrate that
the “board's decision was unreasonable or unlawful.” Majority Opinion at ¶ 57. In
my view, the board’s decision to grant the certificate was unreasonable and
unlawful because the blade-throw setbacks and the default method used to calculate
background noise in a rural area are unsupported by the record and are against the
manifest weight of the evidence. Therefore, I would reverse the decision of the
board and remand for further proceedings consistent with this opinion.
PFEIFER, J., concurs in the foregoing opinion.
_________________
Kevin S. Talebi, Champaign County Prosecuting Attorney, and Jane A.
Napier, Assistant Prosecuting Attorney, for appellants Champaign County and
Goshen, Union, and Urbana Townships.
Van Kley & Walker, L.L.C., Jack A. Van Kley, and Christopher A. Walker,
for appellants Union Neighbors United, Robert McConnell, Diane McConnell, and
Julia F. Johnson.
Michael DeWine, Attorney General, William L. Wright, Section Chief, and
Werner L. Margard, Assistant Attorney General, Public Utilities Section, and Sarah
Bloom Anderson and Summer J. Koladin-Plantz, Assistant Attorneys General,
Environmental Enforcement Section, for appellee Ohio Power Siting Board.
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Vorys, Sater, Seymour & Pease, L.L.P., M. Howard Petricoff, Michael J.
Settineri, and William A. Sieck, for intervening appellee, Champaign Wind, L.L.C.
Chad A. Endsley and Leah F. Curtis, urging affirmance for amici curiae
Ohio Farm Bureau Federation and Champaign County Farm Bureau.
Howard Learner and Trent A. Dougherty, urging affirmance for amici
curiae Environmental Law and Policy Center and Ohio Environmental Council.
_________________
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