IN THE COURT OF COMMON PLEAS OF PAULDING COUNTY, OHIO
BARBARA JEAN MORRIS, et al. 

CASE NO. CI-18-190
Plaintiffs, 


JUDGE BECKMAN
THE STATE OF OHIO,

Defendant.

PLAINTIFF MEMORANDUM IN OPPOSITION IQ
SENECA COUNTY MOTION TO INTERVENE

 

*?te 


Now come Plaintiffs Barbara Jean Morris, Ronnie and Victoria Kadesch, Richard King,
and the Mid?Atlantic Renewable Energy Coalition (collectively, ?Plaintiffs?), by and through

counsel, who respectfully submit for their Memorandum in Opposition to the ?Motion to

Intervene of Seneca County Residents Who Live in Close Proximity to Proposed Wind Turbine
Projects? ?led on December 21, 2018 (?Motion?), the following:
INTRODUCTION

This is an action for declaratory judgment from this Court that the wind turbine setback
provisions passed into law as part of amended, substitute House Bill 483 483?) are
unconstitutional because the General Assembly passed the provisions in Violation of the single-
subject rule of the Ohio Constitution. The Defendant is the State of Ohio (?State?), which is
appropriately represented by the Attorney General?s Of?ce.
The Seneca County Residents (?Seneca Residents?) are not appropriate intervenors. The
Seneca Residents? own Motion re?ects, inter alia: their interests related to this action are too
speculative, remote, and contingent to support intervention; they do not have a legally
protectable interest related to this matter; the disposition of this action will not impede their

ability to protect their interests; the Seneca Residents are effectively advocating before the

1

 

Ohio Power Siting Board regarding proposed wind-energy projects in their own
county; the Seneca Residents admit their interest in this action aligns exactly with the State
and the State is adequately protecting their interests; and, (1) they fail to demonstrate their
intervention will not unduly delay or prejudice the adjudication of the rights of the original
parties.

The Motion and public records also establish the Seneca Residents are represented by the
same counsel that represent coal industry interests and systematically attempt to intervene in
wind-energy matters throughout the state and before the OPSB to delay and prevent the
advancement of wind-energy projects in Ohio. If the Seneca Residents are permitted to
intervene, this action will surely be bogged down in protracted litigation that will prejudice the
ef?cient adjudication of the rights of both Plaintiffs and the State.

11. FACTUAL AND PROCEDURAL BACKGROUND

On November 13, 2018, Plaintiffs ?led their Complaint for Declaratory Judgment.
Plaintiffs seek a declaration from this Court that the wind turbine setback provisions passed into
law as part of H.B. 483 are unconstitutional because the General Assembly passed the provisions
in violation of the single-subject rule. Complaint.

The Defendant is the State because H.B. 483 was signed into law and the provisions at
issue appear in the Ohio Revised Code. 1d. The State is represented by attorneys in the
Constitutional Of?ces Section of the Attorney General?s Of?ce Motion to Dismiss
?led 12/13/18. The Attorney General is the chief law of?cer for the State and the appropriate

counsel for defending Plaintiffs? constitutional challenge to state law.1

 

R.C. 109.02 (The attorney general is the chief law of?cer for the state and all its departments[.]
[N]o state of?cer or board, or head of a department or institution of the state shall employ, or be
represented by, other counsel or attorneys at law. When required by the governor or the

2

 

On December 13, 2018, the State ?led a Motion to Dismiss The State?s
position is that the amendments to the wind turbine setback provisions pursuant to HE. 483 are
constitutionally valid. MT D. Plaintiffs opposed the State?s MTD on December 27, 2018.

On December 21, 2018, the Seneca Residents moved to intervene as defendants as a
matter of right or with permission pursuant to Civil Rule 24. Motion. The Seneca Residents do
not reside in Paulding County or own property in Paulding County. They claim to live in close
proximity to wind?energy projects that might be built at some point in the future in Seneca
County. Id. The Seneca Residents? Motion states, ?if the statutory wind turbine setbacks were to
be declared unconstitutional[, they] would immediately be put at risk of suffering physical harm
and detrimental health effects from wind turbines sited too close to their residences.? Id. at pp. 1?
2. The Seneca Residents do not describe any potential ?physical harm? or ?detrimental health
effects,? nor do they provide facts to support their claim they are ?immediately? at risk of
anything pertaining to wind-turbine projects not yet built. Motion. The Seneca Residents also
ignore the jurisdictional boundaries of this Court?s decisions, which will only affect the law in
Paulding County. See, id. at 4 (alleging, the statutory setbacks were to be struck-down
[by this Court], the residences [in Seneca County] will immediately be at risk?).

The Seneca Residents discuss two (2) wind-energy projects they are concerned about in
their Motion. The projects are at the application stage and pending before the OPSB. The Seneca
Residents admit some of them have already intervened in the OPSB proceedings pertaining to
one of the projects to protect their interests. Other Seneca Residents have a motion to intervene
in the OPSB proceedings pertaining to the second project pending, and the motion is unopposed.

Motion, pp. 4-5. The Seneca Residents? own Motion re?ects they are effectively advocating for

 

general assembly, the attorney general shall appear for the state in any court or tribunal in a
cause in which the state is a party, or in which the state is directly interested?).

3

 

their interests pertaining to wind-energy projects in their own county in a more appropriate
forum. 1d.

With regard to this action, the Seneca Residents make the unadorned assertion that their
alleged ?interests are not adequately represented by any existing although they seek the
exact same result as the State represented by the AGO: a ?nding that the challenged portion of
HE. 483 is constitutionally valid. Id. at p. 2 (Seneca Residents? pursuit is ?to uphold the
constitutionality of the statutory wind turbine setbacks?); id. at p. 8 (Seneca Residents? ?defense
in this action [is] that RC. 4906.20 [containing the setback provisions] is constitutional?);
compare MTD. The Seneca Residents also make the unadorned assertion that their proposed
intervention ?will neither unduly delay this proceeding nor prejudice the rights of the original
Plaintiffs and the State. Motion, p. 2. The Seneca Residents? Motion, Exhibits,
and public records actually establish the opposite. Infra.

The Seneca Residents propose to join the State?s MTD, and the motion to dismiss that
they proffer with their Motion adds nothing to the MTD already pending before this Court.
Motion, p. 2; id. at Exhibit compare MTD. The Seneca Residents even go so far as to allege
?the State has amply demonstrated in its the provisions of HE. 483? are
constitutionally valid, which is tantamount to an admission their interests are adequately
represented. Motion, Exhibit B, p. 3.

The Seneca Residents? Answer proffered with their Motion re?ects that they intend to
enter this straight-forward declaratory judgment action and employ discovery to go on a ?shing
expedition, which will surely result in unnecessary, unwarranted, and undue delay and prejudice
to the ef?cient adjudication of the rights of both Plaintiffs and the State. Id. at Exhibit C, p. 7

(The proffered ?Answer is ?led without the bene?t of discovery. Intervenors have, or may have,

 

additional defenses and/or claims arising from this action, which may be determined by future
discovery?).

Furthermore, public records attached hereto establish counsel for the Seneca Residents
systematically intervene or attempt to intervene in court actions throughout the state and matters
before the OPSB to advocate for anti-wind interests, including the coal industry. The public
records reflect the likelihood of undue delay and prejudice to the existing parties that will befall
this action if the Seneca Residents are permitted to intervene.

Counsel for the Seneca Residents previously intervened on behalf of landowners in
several OPSB proceedings to impede wind-energy projects, including the matters referenced in
the Motion and In re Application of Icebreaker Windpower, Ina, OPSB Case No. 
BGN. In the Icebreaker Windpower matter, records obtained through discovery (now public
records) revealed that the nation?s leading coal mine operator actually funded the intervention
and the protracted litigation that resulted. See Petition to Intervene and Exponent Engagement
Letter attached hereto as Exhibit A.

Counsel for the Seneca Residents have also attempted to intervene in OPSB proceedings
directly on behalf of the coal industry. In re Application ofPaulding Wind Farm, OPSB Case
No. 15-2030-EL-BGA, et al. In the Paulding Wind Farm matter, counsel represented an entity
called CAARE, which opposes wind-energy projects. Petition to Intervene and OPSB Entry
attached hereto as Exhibit B. As recognized by the OPSB:

CAARE describes itself as a non-pro?t Ohio whose purposes,

among other things, include: to meet the need for consistent advocacy for

affordable and reliable American energy; to preserve and protect the coal

industry in its support of coal production, transportation and supply and labor; (0)

to challenge renewable portfolio standards and ?nancial and tax incentives for

alternative energy sources on both a state and federal level? [sic]; and to

participate in state and federal siting certi?cation proceedings to ensure
compliance with all applicable standards and regulations. CAARE membership

 

includes a number of operating coal production, transportation and logistics, and
manufacturing companies located in Ohio, West Virginia, and the region.

OPSB Entry, 1[ l3. Counsel for the Seneca Residents also delay wind-energy projects by
appealing OPSB approvals. See, In re Application of Black Fork Wind Energy, LLC, 2018-
Ohio-5206; Notice of Appeal attached hereto as Exhibit C.

In sum, if the Seneca Residents are permitted to intervene through the same counsel that
represents coal industry interests, systematically attempts to intervene in wind-energy matters,
and regularly appeals pro-wind decisions, this straight-forward declaratory judgment action will
become protracted litigation unnecessarily.

DISCUSSION

A. Standards for intervention

The Seneca Residents moved to intervene either as of right or with permission. Motion.
Civil Rule 24 governs intervention and provides, in pertinent part:

(A) Intervention of Right. Upon timely application anyone shall be permitted to

intervene in an action: (2) when the applicant claims an interest relating to

the property or transaction that is the subject of the action and the applicant is so

situated that the disposition of the action may as a practical matter impair or

impede the applicant?s ability to protect that interest, unless the applicant?s
interest is adequately represented by existing parties.

(B) Permissive Intervention. Upon timely application anyone may be permitted

to interVene in an action: (2) when an applicant?s claim or defense and the

main action have a question of law or fact in common. In exercising its

discretion the court shall consider whether the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties.

The Supreme Court of Ohio has indicated that Civil Rule 24 should be construed liberally

to permit intervention. State ex rel. Merrill v. Ohio Dept. of Nat. Resources, 130 Ohio St.3d 30,

2011-Ohio-4612, 955 935, 11 41. However, permission to intervene is not without limits

 

and applicants must meet the requirements. Merrill. It is the Seneca Residents? burden to
establish eligibility to intervene. Civ.R. 24; infra.

?Failure of the party seeking to intervene [as of right] to satisfy each of the requirements
will result in a denial of the motion.? Houtz v. Houtz, 2018-Ohio-1738, 111 888, 1[ 21
(6th Dist). According to the Supreme Court, for intervention as of right, Civil Rule 
provides that an applicant shall be allowed to intervene in an action ?when the applicant claims
an interest relating to the property or transaction that is the subject of the action and the applicant
is so situated that the disposition of the action impede the applicant?s ability to protect
that interest.? Further, the applicant?s interest must be one that is ?legally protectable,? and 
not be adequately protected by the existing parties.? Merrill at 11 42 (citations omitted) (emphasis
added); Velocity Dev., LLC v. Wp. Bd. of Trustees, 6th Dist. Wood No. WD-11-037,
2011-Ohio-6192, 11 15 must demonstrate that his or her interest is not adequately
represented by the existing parties?); Houtz at 11 20 (same). ?Failure to meet any one of the
elements in Civ.R. will result in denial of the right to intervene.? Fairview Geri. Hosp. v.
Fletcher, 69 Ohio App.3d 827, 831, 591 1312 (10th Dist.1990).

According to the Supreme Court, for permissive intervention, Civil Rule 
provides that a trial court has discretion to permit an applicant to intervene ?when [the]
applicant?sclaim or defense and the main action have a question of law or fact in common.?
However, in exercising its discretion, the court ?shall consider whether the intervention will
unduly delay or p?reiudice the adiudication of the rights of the original parties.? Merrill, 130 Ohio
St.3d at 11 43 (emphasis added). A trial court does not abuse its discretion in denying permission

to intervene unless its decision is ?unreasonable, arbitrary or unconscionable.? Houtz, 2018-

 

Ohio-1738 at 11 17, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 1140

(1983); Merrill at 11 41.

B. Seneca Residents have not met their burden and their Motion should be
denied.

1. Seneca Residents do not qualify for intervention as of right
Lack of an adequate interest in this action

This is an action for declaratory judgment that the wind turbine setback provisions passed
into law as part of HE. 483 are unconstitutional due to a violation of the single-subject rule.
Complaint. The State is the Defendant and the AGO is adequately defending the purported
constitutionality of the law. The Seneca Residents allege, and for purposes of this opposition,
admit that the State is ?amply? defending this lawsuit. Motion, Exhibit B, p. 3 (claiming ?the
State has amply demonstrated in its the provisions of H3. 483? are constitutionally
valid). Notwithstanding, the Seneca Residents needlessly seek to intervene as of right; however,
they do not meet the requirements.

Although the Seneca Residents generally allege an interest relating to the subject matter
of this action:

Chaos would result if every citizen ?interested? in the outcome of new legislation

were permitted to intervene in litigation interpreting that legislation. The interest

of the intervenor must be more particularly in the subject matter of the lawsuit.
Fletcher, 69 Ohio App.3d at 831. An interest that is too speculative, remote, or contingent is
insuf?cient to support intervention. Id. at 832.

The results of this action will affect Paulding County. The Seneca Residents do not reside
in Paulding County or own property in Paulding County. Motion. They claim to live near

proposed wind-energy projects in Seneca County that have not yet been approved by the OPSB.

This Court?s decision will not affect the Seneca Residents or the projects in their county in the

 

near future, if ever. The Seneca Residents? bald assertion, ?if the statutory wind turbine setbacks
were to be declared unconstitutional [by this Court, they] would immediately be put at risk? is
simply inaccurate. Motion, pp. 1-2.2

The Seneca Residents? alleged interest in this action is too speculative, remote, and
contingent to support eligibility for intervention as of right. To be sure, if every citizens with the
same level of interest as the Seneca Residents were all allowed to intervene in this action, chaos
would ensue. See Fletcher at 831; supra.

Moreover, the Seneca Residents have not established their alleged interest in this action is
a ?legally protectable? interest. See Merrill, 130 Ohio St.3d at 1] 42.

In [s]tanding to sue is part of the common sense understanding of what it

takes to make a justiciable case. Standing involves a determination of whether a

party has alleged a personal stake in the outcome of the controversy to ensure the

dispute will be presented in an adversarial context. A personal stake requires an

iniurv to the plaintiff.
Bank of Am., N.A. v. Barber, 11th Dist. Lake No. 2013-Ohio-4103, {l 16 (internal
quotations and citations omitted) (emphasis added). Further, due process requires notice
reasonably calculated to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections. In re Morris, Bankr. ND. Ohio No. 05-68481, 2006
WL 4459436, citing Mullane v. Central Hanover Bank Trust Co., 339 US. 306, 314
(1950}

The Seneca Residents claim they live near sites for proposed wind-energy projects in

Seneca County, but the outcome of this action will only affect the law pertaining to wind turbine

 

7' The Seneca Residents further allege, ?if the statutory wind turbine setbacks were to be declared
unconstitutional[, they] would immediately be put at risk of suffering physical harm and
detrimental health effects from wind turbines sited too close to their residences.? Motion, pp. 1-2.
Of course, the Seneca Residents do not describe any potential ?physical harm? or ?detrimental
health effects? in their Motion. Those unadorned assertions do not change the intervention
analysis and should be disregarded.

 

setbacks in Paulding County. Further, the Seneca Residents? interest in this case aligns exactly
with the State. Accordingly, they have not alleged a sufficient personal stake in the outcome of
this case, they are not subject to injury, nor will their involvement ensure this dispute will be
presented in an adversarial context?the State is adequately representing their interest.

The Seneca Residents further admit they have notice of the proposed wind-energy
projects in their county and they are effectively advocating against the proposed projects before
Motion, pp. 3-5 (discussing two (2) wind-energy project applications pending before
the OPSB pertaining to facilities yet to be approved or constructed in Seneca County, indicating
some Seneca Residents have already intervened in the proceedings pertaining to one project and
other Seneca Residents have a motion to intervene in the proceedings pertaining to the second
project pending, which is unopposed).3

Accordingly, the Seneca Residents have not established a legally protectable interest
related to this action or that a legally protectable interest is being infringed.

The disposition of this action will not impede the Seneca
Residents? ability to protect their interests

The Seneca Residents have not met their burden to establish they are ?so situated that the
disposition of [this] action may as a practical matter impair or impede? their ability to protect
their interests. Civ.R. The Seneca Residents are concerned about wind-energy projects
at the application phase before the OPSB that have not been built and may never be built in
Seneca County. Motion. As set forth above and in their Motion, they have notice of the proposals
pending before the OPSB to site wind-energy projects in their county and they are effectively

advocating for their interests with regard to those proposed projects. Id.; supra. This is not a case

 

3 See also Fletcher, 69 Ohio App.3d at 836 right to participate in an administrative hearing
before the does not necessarily translate into a conditional right to intervene in a
civil action?).

10

 

where this Court granting the relief sought will ?make it impossible for [the Seneca Residents] to
protect? their interests. See Fletcher, 69 Ohio App.3d at 834.

This Court?s decision regarding the constitutional validity of HE. 483?s amendment to
the wind turbine setback provisions will only affect the law in this county and not Seneca
County. The Seneca Residents incorrectly assert in their Motion that if this Court were to
invalidate H.B. 483?s amendments to the setback law, they ?immediately would be subject to
turbines being sited too close to their homes? in Seneca County. Motion, p. 7. That is simply not
true.

Accordingly, the disposition of this action may not, as a practical matter, impair or
impede the Seneca Residents? ability to protect their interests.

Seneca Residents? interest is adequately represented by the
State

Intervention as of right is only proper when the prospective intervenor?s interests are not
adequately represented by the existing parties. Further, it is the Seneca Residents? burden to
prove their interests are not adequately represented by the State. Merrill, 130 Ohio St.3d at 1] 42;
Velocity Dev., 2011-Ohio-6192 at 1] 15; Houtz, 2018?Ohio-1738 at 1] 20; see also Fletcher, 69
Ohio App.3d at 831 (?Failure to meet any one of the elements in Civ.R. will result in
denial of the right to intervene?).

The Seneca Residents? interest in this action is aligned exactly with the State?s position.
compare Motion, p. 2 (Seneca Residents? pursuit is ?to uphold the constitutionality of the
statutory wind turbine setbacks?); id. at p. 8 (Seneca Residents? ?defense in this action [is] that
RC. 4906.20 [containing the setback provisions] is constitutional?). If permitted to intervene, the
Seneca Residents propose to join the State?s MTD and the motion to dismiss they proffer along

with their Motion adds nothing to the MTD already pending before this Court. Id. at Exhibit 

11

 

compare MTD. The Seneca Residents even go so far as to allege ?the State has amply
demonstrated in its the provisions of HE. 483? are constitutionally valid, which is
tantamount to an admission their interests are adequately represented. Motion, Exhibit B, p. 3.
This Court?s analysis can end here with regard to the issue of adequate representation.4
Furthermore:
Representation is generally considered adequate if no collusion is shown
between the representative and an opposing party, if the representative does
not represent an interest adverse to the proposed intervenor and if the

representative has been diligent in prosecuting the litigation.

A party charged by law with representing the interests of the absent party will
usually be deemed adequate to represent the proposed intervenor.

Fletcher at 835 (citations omitted). There is no collusion between the State and Plaintiffs. The
existing parties are clearly at odds as reflected in the brie?ng of the State?s MTD. The State does
not represent an interest adverse to the Seneca Residents. On the contrary, they pursue the same
outcome of this action: a ?nding that the challenged portion of HE. 483 is constitutionally valid.
Motion; MT D. The record re?ects the State has been diligent in defending this action and the
Seneca Residents agree. Motion, Exhibit B, p. 3.

By law, the AGO is the appropriate counsel to defend Plaintiffs? constitutional challenge
to Ohio law. See R.C. 109.02. The assistant attorneys general in the Constitutional Of?ces
Section of the AGO representing the State are presenting an appropriate defense. Record; MT D.
In sum, there is no merit to the Seneca Residents? assertion that their alleged interest in this

action is not adequately represented by any existing party. Motion, p. 2.

 

4 See Fletcher at 835 (?[The applicant] failed to show its interest will not be adequately
represented by the [an existing party]. Although [the applicant] may have a interest
produced by the results of litigation, both parties share identical positions on the primary issue
involved in the litigation[.] Therefore,. .. the trial court correctly denied [the] motion to intervene
as a matter of right?).

12

 

The Seneca Residents have not met their burden to prove the necessary elements pursuant
to Civil Rule to establish eligibility to intervene as of right. Accordingly, their Motion
should be denied.

2. Seneca Residents shOuld not be permitted to intervene

The Seneca Residents? I claims and defenses, taken at face value, share a common
question of law with this action. Motion; Civ.R. However, the Seneca Residents have
failed to demonstrate their intervention will not unduly delay or prejudice the adjudication of the
rights of Plaintiffs or the State. Id.; Merrill, 130 Ohio St.3d at 11 43 exercising its
discretion, the [trial] court shall consider whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties?); Merrill at 1] 45 (When a prospective
intervenor demonstrates ?that intervention will not unduly delay or prejudice the adjudication of
the rights of the original parties, it meets the requirements of Civ.R. for permissive
intervention?).

This is a straight-forward declaratory judgment action against the State challenging the
constitutionality of a statute. Complaint. There is no question that if the Seneca Residents are
permitted to intervene both Plaintiffs and the State will be subjected to undue delay and
prejudice regarding their pursuit of ef?cient adjudication. There is no need for the Seneca
Residents to intervene. As discussed above, they admit their interest in this action aligns exactly
with the State and the AGO is the appropriate counsel to defend this action. Supra.

The Seneca Residents proffered an Answer that re?ects they intend to enter this action
and employ discovery to go on a ?shing expedition. Motion, Exhibit C, p. 7 (The ?Answer is
?led without the bene?t of discovery. Intervenors have, or may have, additional defenses and/or

claims arising from this action, which may be determined by future discovery?).

13

 

Furthermore, the public records discussed above and attached hereto establish counsel for
the Seneca Residents systematically intervene or attempt to intervene in court actions throughout
the state and matters before the OPSB to advocate for anti-wind interests, including the coal
industry. The public records re?ect the undue delay and prejudice that will befall this action if
the Seneca Residents are permitted to intervene.

For instance, counsel for the Seneca Residents previously intervened on behalf of
landowners in several OPSB proceedings to impede wind?energy projects, including the matters
. referenced in'the Motion. In another matter, Icebreaker Windpower, records obtained through
discovery (now public records) revealed that the nation?s leading coal mine operator actually
funded the intervention and the protracted litigation that resulted. See ExhibitA; supra.

Counsel for the Seneca Residents have also attempted to intervene in OPSB proceedings
directly on behalf of the coal industry. In the Paulding Wind Farm matter, counsel represented
an entity called CAARE, which opposes wind-energy projects and describes itself as:

non-pro?t Ohio whose purposes, among other things, include:

to meet the need for consistent advocacy for affordable and reliable American

energy; to preserve and protect the coal industry in its support of coal

production, transportation and supply and labor; to challenge renewable
portfolio standards and ?nancial and tax incentives for alternative energy sources

on both a state and federal level? [sic]; and to participate in state and federal

siting certi?cation proceedings to ensure compliance with all applicable standards

and regulations. CAARE membership includes a number of operating coal

production, transportation and logistics, and manufacturing companies located in

Ohio, West Virginia, and the region.

Exhibit B, OPSB Entry, 1] 13; supra. Counsel for the Seneca Residents also delay wind-energy
projects by appealing OPSB approvals. See, e. In re Application of Black Fork Wind Energy,
LLC, 2018?Ohio?5206; Exhibit supra.

If the Seneca Residents are permitted to intervene through the same counsel that

represents coal industry interests, systematically attempts to intervene in'wind-energy matters,

14

 

and regularly appeals pro-wind decisions, this straight-forward declaratory judgment action will
become protracted litigation unnecessarily and prejudice the ef?cient adjudication of the rights
of both Plaintiffs and the State.

The Seneca Residents have failed to meet their burden to prove their intervention will not
unduly delay or prejudice the adjudication of the rights of the original parties pursuant to Civil
Rule Accordingly, it is not unreasonable, arbitrary, or unconscionable to deny
intervention. The Seneca Residents? Motion should be denied.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court deny the Seneca

Residents? Motion to Intervene.

Respectfully submitted,



Norman E. Cook (000843 5)
Brian S. Gorrell (0075438)
112 N. Water Street
Paulding, Ohio

Telephone (419) 399-2181
Facsimile (419) 399-2970


Jonathan R. Secrest (0075445)
David A. Lockshaw, Jr. (0082403)
DICKINSON WRIGHT PLLC
150 East Gay Street, Suite 2400
Columbus, Ohio 43215

Telephone (614) 744~2572
Facsimile (844) 670-6009
jsecrest@dickinsonwright.com
d1ockshaw@dickinsonwrightcom

Counsel for Plainti?fs

15

 

CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of January, 2019, a true and accurate copy of the
foregoing was served by electronic mail upon the following:

Tiffany L. Carwile, Esq.

Sarah E. Pierce, Esq.

Assistant Attorneys General


Counsel for the State of Ohio

John F. Stock, Esq.

Mark D. Tucker, Esq.

Benesch riedlander Coplan Aronoff LLP
41 S. High St., 26th Floor

Columbus, Ohio 43215
istock@beneschlaw.com

Counsel for Seneca County Residents

Trent Dougherty, Esq.

Miranda Leppla, Esq.

Chris Tavenor,Esq.

1145 Chesapeake Ave, Suite I
Columbus, Ohio 43212
tdougherty@the0EC.org
mleppla@theOEC.org
ctavenor@theOEC.org

Counsel for Ohio Environmental Council

 

 

Norman E. Cook (0008435)
Brian S. Gorrell (0075438)

COLUMBUS 56246-11 104808V2

16

 

EXHIBIT A

 

BEFORE
THE OHIO rowan SITING BOARD

In the Matter of the Application of Icebreaker 
Windpower Inc., for a Certi?cation to 
Construct a Wind-Powered Electric Case No. 
Generation Facility in Cuyahoga County, 
Ohio 
PETITION TO INTERVENE OF BRATENAHL RESIDENTS
W. SUSAN DEMPSEY, ROBERT M. MALONEY, GREGORY 
AND LEON BLAZEY. JR.

Pursuant to RC. R.C. 49060803), and O.A.C. 4906-24203) (C),
Cuyahoga County residents W. Susan Dempsey, Robert M. Maloncy, Gregory Binford, and
Leon Blazey. Jr. (together, the ?Bratenahl Residents"), who live in the Village of Bratenahl,
hereby petition the Ohio Power Siting Board for an order granting their intervention as parties in
this proceeding.

Good cause exists for granting the Bratenahl Residents leave to intervene in this case
a?er the 30-day period set forth in RC. and O.A.C. The
Bratenahl Residents initially understood that the proposed project (the ?Proposed Project?)
would simply involve the installation to six (6) wind turbines in Lake Erie. They did not
understand that the Proposed Project is likely to he a precursor to an additional 1000+ wind
turbines being sited in Lake Erie. In addition, they did not realize the extent of the damage to
birds and bats that is likely to be caused by the Proposed Project.

Mareover, pursuant to the October 23, 2017 Motion to Suspend the Procedural Schedule
(the ?Staff Motion to Suspend") ?led by the Ohio Power Siting Board staff, and the
October 23, 2017 Entry granting that motion, the OPSB has stayed the procedural

schedule in this case requiring the scheduling of another public hearing and the adjudicatory

 

hearing at some future date, as yet undetermined. Thus, there will be no prejudice to the parties
by the Bratenahl Residents? intervention in this case.
This Petition to Intervene is supported by the Memorandum In Support set forth below.
Respectfully submitted,
mun F. Stock
John F. Stock (0004921)
Orla E. Collier (0014317)
BENESCH, FRIEDLANDER,
COPLAN ARONOFF LLP
41 3. High Floor
Columbus, Ohio 43215
(614) 223-9300
FAX: (6l4) 223-9330
Attorneys for W. Susan Dempsey, Robert M.

Maloney. Gregory and Leon Blazey,
Jr.

MEMORANDUM IN SUPPORT OF
PETITION TO INTERVENE

A. The 

lnter?venor W. Susan Dempsey is a life-long resident of Cuyahoga County. She grew up
in Euclid, with a beach and Lake Erie at the end of her street. She learned to swim in Lake Erie
before she could walk. The Dempsey family had a simmer cottage in Eastlake, where Ms
Dempsey and her six siblings spent summer vacations, swimming, boating, and ?shing in Lake
Erie. Later, Ms. Dempsey spent ten years ?crowing" on racing sail boats throughout the Lake.

Ms. Dempsey attended college and graduate school in Cuyahoga County. She has always
lived, worked, and paid taxes in Cuyahoga County. Currently. Ms. Dempsey owns a
condominium in Bratenahl. From the ninth ?oor balcony of her condominium, she watches all
varieties of birds, including geese, ducks, eagles, great blue herons, and sea gulls. She regularly

enjoys sunsets on the Lake: the proposed wind turbines' killing of birds and bats and hint on the

 

 

aesthetic beauty of Lake Erie would directly affect her. The time and money that Cuyahoga
County has invested in Applicant Icebreaker Windpower Incorporated?s (?Applicant? or
?Icebreaker") proposed six (6) turbine Lake Erie wind project (the ?Proposed Project?) have
been funded with Ms. Dempsey?s county tax dollars. Ms. Dempsey is a consumer of electricity
distributed through the RIM grid in Cuyahoga County. She pays federal income taxes: the
millions of federal grant dollars paid (and to be paid) for the Proposed Project have been funded
with her. federal tax dollars. Thus, Ms. Dempsey has numerous, direct intereSts to be protected in
this proceeding.

Intervenor Robert Maloney has lived in Cuyahoga County for many years. He currently
owns a condominium and resides in Bratenahl. He owns a boat, docked at NeWport Harbor Boat
Club, and regularly boats on Lake Erie. He's an avid ?sherman and swimmer in the Lake. Mr.
Maloney sometimes drinks water directly from the Lake while ?shing. He also enjoys birding at
the Lake Erie Nature PreserVe, which teams with migratory birds and resident bald eagles. He
visits the Lake Erie islands and uses the public beaches in Mentor and Cleveland, a 10-minute
walk from Lake Erie. Mr. Maloney pays Cuyahoga County real estate taxes. He pays federal
income taxes. This, Mr. Maloney has numerous. direct, personal interests to be protected in this
proceeding.

Intervenor Gregory Binford has lived in Cuyahoga County for 65 years. He currently
owns a condominium and resides in Bratenahl. He regularly boats on Lake Erie. He fishes and
swims in the Lake. He also enjoys viewing birds at the Lake Erie Nature Preserve. He visits the
Lake Erie islands and uses the public beaches in Mentor and Cleveland, a 10-minute walk from
Lake Erie. Mr. Binford pays Cuyahoga County real estate taxes. He pays federal income taxes.

Thus, Mr. Maloney has numerous, direct, personal interests to be protected in this proceeding"

 

 

Intervenor Leon Blazey, Jr. has lived in Cuyahoga County for many years. He currently
owns property and resides in Bratenahl. He enjoys his beautiful viewshed out over the Lake. He
enjoys feeding and watching Lake Erie birds.

The Bratenahl Residents possess legally-protectable interests that are endangered by
Icebreakcr?s Proposed Project. And the existing parties to this pgocegding cannot represent the
Bratenahl Residents and will not protect their direct personal interests. The Bratenhal Residents
are entitled to intervene in this proceeding pursuant to 11.0. and O.A.C. 4906-2-
12.

B. Statement of Good Cause for Intervention After 30-Da 

As noted. the Bratenahl Residents did not previously seek to intervene in this case to
Oppose the Proposed Project because they initially understood that the project would simply
involve the installation to six (6) wind turbines in Lake Erie. They did not realize that the
Proposed Project is likely to be a precursor to an additional 1000+ wind turbines being sited in
Lake Erie. In addition, they did not realize the extent of the damage to birds and hats that is
likely to be caused by the Proposed Project.

Moreover, the Staff Motion to Suspend: acknowledges that the Proposed Project is
?precedent-setting?; (2) acknowledges that Applicant has not provided to the OPSB valid pre-

and post-construction radar monitoring studies necessary for the OPSB to determine the probable

 

environmental impact of the Project on birds and bats; and (3) recommends that the date on

'c A licant submits 5 ie ti? a -valid tudies to the OPSB serv as he new ecti date

9! the Application:

. . . Staff believes it is necessary that Applicant provide it with additional
supplemental information on the viability and design of the pre? and post-
cou'struction radar monitoring protocol that Applicant intends to utilize at the project
site for determining project impacts. . . . This information is necessary to measure

 

(an 
A

the e??ect of off-shore turbines on birds and bats as discussed further below. . . .
Staff would anticipate that a new procedural schedule would . . . include new dates
for scheduling a second public hearing and scheduling the evidentiary hearing.

. . Staff proposes that the date the Applicant submits this supplemental
information to Sta?' to serve as the Applicant?s new effective date for its
application, so that a new procedural schedule, including the scheduling of a
second public hearing, can be established in this case. (Emphasis added).

Staff MOtion to Suspend at - 3.

Similarly. the US. Fish And Wildlife Service concludes that Applicant?s pre-
and post-construction bird and bat studies, cited in the US. Department of Energy?s 
draft Environmental Assessment (the Draft are insuf?cient:

The conclusions reached in the [D]ra? EA regarding potential impacts to birds and
bats are based on available data collected primarily outside of the project area. . . .
Additional data on bird use of the airspace were generated using 
weather radar data from the Cleveland area which provides limited data about bird
and but use within the airspace that will be occupied by the turbines (the ?rotor-
swept zone. . . . Studies of bird and but use of the specific project area have been
recommended by the Service for several years . . . but are just starting to be
implemented. . . . Data from these site-speci?c studies are not available for
inclusion in the Draft EA. (Emphasis added).

Thus, the conclusions in the Dra? EA are based on assumptions that observations
from other parts of Lake Erie are relevant to the project area, and that impacts at
onshore wind facilities in the U.S. and Canada are relevant predictors of impacts to
birds and hats at offshore wind developments in Lake Erie. These assumptions may
or may not be accurate. Because of the potential risk of bird and bat mortality, and
because this project is designed to be a demonstration project to evaluate offshore
wind installation in the Great Lakes, pro-construction monitoring to inform risk and
post?construction monitoring to casess actual impacts are necessary components of
the. project that must be implemented.

. . . ?per-turbine impacts are not accurately measured for this precedent-setting
project, risk levels of larger future projects may be substantially underestimated.
(Emphasis added). 

October 4, 2017 FWS Letter to DOE at 2 -3 (?led with the OPSB on November 7, 2017).

 

 

Moreover. FWS not only concluded that Applicant's study data are insuf?cient, FWS
also concluded that certain assertions made by Applicant concerning Lake Erie bird and bat data

(parroted in Draft EA) are af?matjvely misleading:

Section 3.4.1.3 of the Draft DA describes the Affected Environment relative to birds

and bats. Pages 3-29 and 3-32 describe a NEXRAD weather radar analysis of bird

and but use of the project area . . . . Page 3-32 states, ?Several recent studies

employing marine radar in shoreline environments have demonstrated relatively high

densities of nocturnal migrant birds along the shorelines of Lake Erie and Lake

Ontario, reinforcing the understanding that such migrants tend to concentrate

along. coastlines and avoid ?ying over large water bodies. such as Lake Erie, if

possible . . . . Page 3-51 includes a similar statement. These statements are
misleading . . . . These [cited] publications instead state that migrants concentrate

on the shoreline daring dawn and daytime when they land to rest and refuel.

During the actual nocturnal migration. however, migrants commonly cross Lake

Erie and all of the other Great Lakes. . . . (Emphasis added).
1d. at 3.

This case is reustarting back at ?square one.? Applicant?s Application is incomplete at this
point; it will not be considered complete until after Applicant submits to the OPSB scienti?cally-
valid pro-construction bird and bat studies that are necessary for the OPSB to make its
statutorily-required findings and determinations of the probable environmental effects of the
Preposed Project. If and when Applicant provides that scienti?cally-valid information to the
OPSB - Applicant has not provided such information to date - the date of that submission will
become the pe_w effective date of the Application and the public hearing and adjudicatory
hearing process will mm. These circumstances constitute gmdgause and eggs?Mm
circumstances justifying leave for the Bratenahl Residents to intervene in this case at this time.
C. Intervcnors? Protected Interests

The Preposed Project is the ?rst proposed freshwater offshore wind turbine facility to be
located in North America and in the Great Lakes. The Proposed Project is not intended to be a

commercially feasible, stand-alone electric generating facility. Over one hundred million dollars

 

will be invested to construct and Operate six (6) wind turbines that, at best, will produce only a
miniscule amount of electricity (no more than 20.7MW at theoretically ?ill capacity). This
makes absolutely no economic sense of itself. Rather, Applicant fully intends for the Proposed
Project to be simply a loss-leader ?icebreaker? - the first wind turbine project to be permitted for
construction in the Great Lakes. Once the Proposed Project breaks the barrier against privately-
owned wind turbine installations in the Great Lakes, Applicant fully intends to seek to obtain
OPSB authorization to install an exponentially greater number of wind turbines in the Lake,
capable of producing enough electricity, albeit uncompetively- electricity, to obtain
some meaningful return on its enormous investment.

Applicant attempts to convince the OPSB that it should break the barrier against
permitting a private commercial enterprise to install and operate wind turbines in the Great Lakes
by urging that the Proposed Project will be a ?demonstration" that it will provide valuable
information about the ecological effects of wind turbine projects in the Great Lakes and
information about the ?nancial viability of such projects that will assist regulatory agencies in
forming sound public policy for "future larger-scale offshore wind farms in Lake Erie and the
other Great Lakes." Application at 3. As set forth in detail below, that assertion is nonsense. The
construction and operation of the Proposed Project will provide no material information
regarding environmental impacts or energy economics that cannot be obtained before, or
met, construction of the project. Indeed, both the OPSB Staff and USFWS acknowledge that
Applicant has failed to identify much less implement scientifically-sound methodologies for
accurately assessing the probable environmental impacts of the Proposed Project on birds and

bats. For that reason alone, the OPSB cannot grant a certi?cate to Applicant to build the project.

 

l. The State of Ohio Holds Lake Erie In Trust for the Bene?t of Ohio ?s
Citizens. Certi?cation of Icebreaker ?s Proposed Project Would Violate that
Public Trust.

The State of Ohio?s ownership of its portion of the land under Lake Erie is subject to the

?Public Trust Doctrine.? Illinois Railroad Company v. Illinois, 146 US. 387 (1892). The State of

Ohio holds title to its portion of Lake Erie in 1111s; for the bene?t of the people of the State," not
for the bene?t of private-pgy Icebreaker. The State of Ohio?s title in Lake Erie:

. . . is a title different in character from that which the state holds in lands intended

for sale. it is a title held in trustfor the people of the state, that they may enjoy

the navigation of the waters, carry on commerce over them, and have liberty of

?shing on them, freed from the obstruction or interference of private parties. . . .

The trust devolving upon the state for the public, and which can only be

discharged by the management and control of the property in which the public

has an interest, cannot be relinquished by a transfer of the property. . . .

(Emphasis added).

146 US. at 452-453. See also State ex rel. Squire v. City of Cleveland, 150 Ohio St. 303,
345-346 (1948), quoting Illinois R. Co, supra. The State of Ohio holds title in Lake Erie in trust
for the bene?t of the Bratenahl Residents, not for the bene?t of Norwegian corporation Fred
Olsen Renewables, not for the bene?t of intervenor Sierra Club, not for the bene?t of intervenor
Environmental Council, and n_ot 'for the bene?t of Maryland-based intervenor Offshore Wind 
Business Network.

2. The Application Fails to Meet the Requirements of Ohio Law.

The pending Application for a Siting Certi?cate fails to comply with the requirements of
R.C. Chapter 4906, OAC Chapter 4906-4, and OAC Rule 4906-17-05. The Application must be
denied.

Speci?cally, the Application is legally de?cient for the following reasons.

a. The Application completely fails to establish ?[t]he nature of the probable

environmental impact" of the Proposed Project, much less that the Proposed Project ?represents

 

 

the minimum adverse environmental impact," as required by and (3),
respectively:

The Staff Motion to Suspend establishes that the Application, to date, utterly fails to
establish the probable environmental impacts of the precedent-setting Proposed Project on birds
?and bats:

Construction and operation of off-shore wind turbines presents a very different set of
challenges than land-based turbines in terms of wildlife impact measurement. The

Great Lakes has unique ecological properties compared to land installations. Due

to the fact that this project is precedent-setting, since it is the ?rst proposed 
shore wind facility in Lake Erie, Staff requires more information on the radar
tech noIOgy monitoring protocol it selected for this small demonstration project and
whether it can reliably measure the effect of off-shore turbines on birds and bats
and inform of the risk Ievelsfor?rlure development projects in Loire Erie. The pre-
construction radar monitoring protocol is important to Staff?s investigation because it
establishes baseline-conditions using methodoloIigies that will be duplicated during
the operational phase to provide robust pre- vs. post?construction comparisons for
impact assessment. (Emphasis added).

Motion to SuSpend at 2- 3.
For example, the bird and bat risk studies and summaries that Applicant cites for the

proposition that the Proposed Project presents ?low risk" to birds and bats actually do nothing
other than confirm that Applicant has absolutely no scienti?cally-soupd basis tp whether
the Preposecl Project will kill signi?cant numbers of birds and bats. Applicant does not even
know the location of nocturnal migratogl bird ?ight paths over Lek; Erie, much less the number
of birds that migrate across the l?e or pl which they cross the lake, whether the

millions of birds migrating across Lake Erie at night will fly through the turbines? rotor swept

zone 65 feet (20 meters) to 479 feet (146 meters) above the water surface. 

 

However. the us. Fish and Wildlife Service's Spring 2012 MERLIN avian radar (gm NEXRAD weather radar)
study of Lake Erie shows that up to Wm fly over Lake Eric at night during peak pulses of Spring
migration. oh 5 Avie ar Technica 

Spring 2012, Rebecca Horton, ct at, at 18. Moreover, radar study revealed that ?peak density
[of birds] was found to occur between 50 - 150m - 49211] above ground level." Id. at vi (emphasis added).

9

 

 

Since the inception of this Proposed Project, Applicant and its predecessors have been at
odds with USFWS and ODNR over the proper pre-construction testing methodologies that must
be deployed to obtain scienti?cally-valid data to determine the Proposed Project?s ?probable
environmental impact" on birds and bats testing that must be completed during the spring and

fall migration seasons before Applicant begins construction (proposed to commence in April

 

2018). And that disagreement has not been resolved. Indeed, in the July 20, 2017 Avian and Eat
MOU between Applicant and ODNR and the accompanying July 17, 2017 Icebreaker Wind
Avian And Bat Monitoring Plan. Lake Erie, Ohio (the ?Monitoring Plan") that Applicant has
submitted to the OPSB, Applicant acknowledges that it has not yet reached agreement with
ODNR regarding the scienti?cally-valid ore-construction methodologies that must be used by
Applicant to determine the Proposed Project?s probable environmental impact on birds and bats:
Due to the unprecedented nature of this demonstration project, protocols for

determining potential impacts to birds and bats in an embers environment have not
previously been established for the Great LakesWith regard to radar monitoring, [the Monitoring Plan] articulates the [Applicant]
project team?s to work with ODNR, OPSB, and other agencies and
stakeholders to retain an objective third party radar expert to determine tlrefeasibilibt
and precise design of any pre- and post-construction radar monitoring surveys.
(Emphasis added).
Monitoring Plan at l, 2.
Furthermore, post-construction mopito?ng for the Preposed Project will not enable
Applicant to obtain scienti?cally-valid data as to the Project's environmental impact 

collision deaths) upon birds and bats. Applicant has repeatedly acknowledged in its ?lings with

the OPSB that it will be impossible to determine turbine-caused bird and bat fatalities for wind

 

Thus, USFWS found that the greatest density of noctumally migrating birds are located within the altitude of the
Proposed Project?s Rotor Swept Zone. 65.62 h. to 479.03 feet.



 

 

turbines that are located in water. Applicant?s own avian experts admit that post-construction
bird mortality studies for this offshore project will be ?extremely dif?cult, if not impossible" to
perform. Final Avian Risk Kerlinger Guamaccia (October 2013), at 11 (emphasis
added). Applicant repeats that admission in its Moaitoring Plan:

[Applicant] recognizes that the potential for birds andlor bats to collide with Project
infrastructure during the Project?s operational phase is of primary importance for the
Project and for the Monitoring Plan. [Applicant] also re?cOgnizes that the well-
established methods for monitoring such impacts at land-based wind energy facilities
cannot be performed at an offshore facility such as the Project. Although several
promising technologies are under development, no proven e??ective technologies to
perform bird/bot collision monitoring at offshore wind energy facilities are currently
available; however, several emerging technologies appear promising. (Emphasis
added).

Monitoring Plan at 12.

FWS has admonished DOE (and ?led its comments with the OPSB) that Applicant?s
unde?ned, and/or de?cient proposed post-construction monitoring will not provide as:

scienti?cally-valid information as to the environmental threat to birds and bats posed by future,

larger wind turbine installations in the Great Lakes:

. . . It will be dif?cult to detect carcasses struck by turbines in the open water
environment. Developing and validating methods for generating robust mortality
estimates for bats and birds, and testing methods to collect and identify carcasses at
offshore wind project is critically important if this demonstration project is to
inform future offshore wind development in the Great Lakes and elsewhere. . . .
However, in order to ?rst test if these technologies would be effective, preferably in
conjunction with each other, they need to be tested on land where traditional fatality
monitoring could also be done for validation purposes. To data these tests have not
occurred. The Service recommends that the [D]ra? EA be revised to include a plan
for effective fatality monitoring and that the techniques be validated using land-
based facilities prior to funding construction and preferably prior to ?nalizing the

a a 
. . . [Gliven the lack of de?ned robust pre- and post-construction studies. there is

likely to be little more certainty of biological impacts alter the project is
constructed and operating titan is currently available. (Emphasis added).

October 4, 2017 FWS Letter to DOE at 8.

ii

 

Thus, Applicant admits both that (1) bird and bat collision fatalities are an environmental
impact of grimy importance for the Project, and (2) its Application fails to identify for the
0P a Tue 5 'enti?ca -valid In it w'll lo to co as ass that
primary enviromental impact and mitigate it, if possible. In short, Applicant has acknowledged
that its Application fails to establish "the nature of the probable environmental impact" (R.C.
much less that the Proposed Project ?represents the minimum adverse
environmental impact" analysis con?rms that the Application is
legally-de?cient.

R.C. provides that ?[t]hc board shall not grant a certificate for the
construction, operation, and maintenance of a major utility facility . . . unless it ?nds and
determines all of the following: . . . (2) [tlhe nature of the probable environmental impact; [and]
(3) [tlhat the facility represents the minimum adverse environmental impact.? The Application
does not even pro?t; to the OPSB any scienti?cally?valid means by which the OPSB may make
its required _f1_nd_ing? and determinations as to the environmental impacts of the Proposed Project,
and that the Proposed Project represents the minimum adverse environmental impact for birds
and bats. The OPSB must deny the Application for these reasons.

2. The Application fails to establish that the Proposed Project will serve the interests
of electric system economy and reliably as required by RC. Applicant admits
that as a ?demonstration? project, the Proposed Project is neither commercially feasible nor
economically justi?ed. The Proposed Project has a ?nameplate? capacity of only 20.7 MW, and,
according to Applicant, is eitpected to operate at only 41.4% of that modest capacity. Moreover,
the Proposed Project is heavily dependent upon substantial public ?nancial subsidies including

more than $40 million in federal grants, federal investment tax and production tax credits, and

12

 

 

state property tax-exemptions with absolutely no showing that the project feasibly can lead to
consuuction of a commercialascale generation facility that would be ef?cient and economically
competitive. The Proposed Project cannot compete in the wholesale electricity market. The April
2009 Great Lakes Wind Energy Center Final Feasibility Report shows that the Proposed Project
wouldlsell its small output at roughly three times wholesale electricity prices in the region.

Moreover, PJM Interconnection LLC currently assigns only a 17.6% capaeigj factor for
new, onshore wind-powered generation facilities. This means, for example, that a new,
commercial-scale wind facility would have to be supported by 824 MW of additional
fossil fuel-?red electric generation to power of load growth. Under no circumstances
will the Proposed Project, or any expansion of the Proposed Project to a commercial-scale size of
1,000 turbines or more, ever gallant PJM base load fossil fuel-?red electricity. The Preposed
Project does not serve the interests of electric system economy or stability.

3. For the reasons set forth herein, the Application fails to establish that the
Proposed Project will serVe the public interest, convenience and necessity as required by R.C.
In sum, Applicant requests the OPSB to authorize construction of a privately-
owned project that will visit currently-unknown, and potentially vast, environmental harms Upon
Lake Erie for no economic return - the Proposed Project will Mum, and inefficiently,
produce expensive electricity that will never displace fossil fuel-fired base load electricity for the
PIM system. Ohio electric ratepayers ?lose? with this project. Ohio taxpayers ?lose" with this
project. Migrating birds and bats, waterfowl, and other Lake Erie wildlife ?lose? with this
project. People enjoying the use of Lake Erie and its shares ?lose" with this project. The only

party that ?wins? with this project is publicly-subsidized foreign investor Fred. Olsen

13

 

 

Renewables USA LLC. The Proposed Project does not serve the public interest of Ohioans. it
violates the Public Trust Doctrine.

4. The Application has redacted from it required information concerning capital and
intangible costs, operation and maintenance expenses, present worth and annualized expenditures
for operating and maintenance costs, and delay costs. See OAC Rule 4906-4-06.

5. The Application fails to adequately document total decommissioning costs under
O.A.C. I and fails to offer substantive evidence as to enforceable
decommissioning commitments or contracts, bonds or surety or other ?nancial assurance.

6. The Application?s construction schedule for the Proposed Project is unrealistic -
especially in light of the suspension of the procedural schedule in this case. Construction
can occur only from mid-April to mid-October, thereby raising the specter of construction
delays, adverse financial impacts, and possible risk to public funding grants. As noted above,
Applicant has not even identi?ed, much less implemented, any scienti?cally-valid 9%
construction methodologies necessary to determine the probable environmental impacts of the
Proposed Project. All of the following conditions must be met before Applicant can even begin
construction of the Proposed Project: Applicant must identify scienti?cally-sound pre- and

methodologies for determining probable environmental impacts and submit the

methodologies to the OPSB for approval - which FWS correctly acknowlede ?rst must be
tested Qn land-based turbines to be scientifically-validated; the OPSB must approve the

proffered, pro-validated methodologies; the approved methodologies must be implemented;
resulting scienti?cally-sound data must be presented the the OPSB must review
the data; and the OPSB must make ?ndings and determinations as to the environmental

impacts of the Proposed Project and that the Proposed Project represents the minimum adverse

14

 

 

environmental impact pursuant to R.C. and (3). None of these required events has

 

occurred. The proposed construction schedule cannot be met.

7. The Application concedes there is little empirical evidence or knowledge as to
how offshore wind turbine noise may impact aquatic wildlife and ecosystems, or how such noise
can be mitigated. Applicant has failed to properly address these issues.

8. The Application acknowledges that there are risks to the structures of the
Proposed Project from ice cover, ice loads, and the fonnation of ice ridges in Lake Erie and in
the Proposed Project area. However, the Application does not provide suf?cient data from which
the OPSB can ?nd and determine that the structures can withstand such risks.

C. Intervention Standard

The Intervenors meet all requirements for intervention in these proceedings as set forth in
R.C.- and O.A.C. The Board may consider the following when
determining petitions to intervene:

The nature and extent of the person?s interest;

The extent to which the person's interest is represented by existing parties;

The person?s potential contribution to a just and expeditious resolution of the
issues involved in the proceeding; and

Whether granting the requested intervention would unduly delay the proceeding
or unj us?y prejudice an existing party.

O.A.C. See also In the Matter of the Application of Clean Energy Future??-
Lordsto?wn, LLC. No. slip 0p. at 2, 115 (Ohio Power Siting Bd. July 28, 2015)
(setting forth factors the Board considers in resolving motions to intervene); In the Matter of the
Application of Columbus Southern Power Cd, No. slip op. at 3, 118 (Ohio

Power Siting Bd. Jan. 29, 2004) (same).

15

 

 

The Ohio Supreme Court has interpreted this rule as providing that ?[a]ll interested
parties may intervene in [Board] proceedings upon a showing of good cause." State, ex rel. Ohio
Edison Co. v. Parratt. 73 Ohio St.3d 705, 708 0995) (citation omitted). Accordingly. the Board
has granted numerous petitions to intervene ?led by property owners whose property would be
affected by a proposed project. See In the Matter of the Application of Buckeye Wind LLC, No.
13-360-EL-BGA, slip op. at 5-6, 111112-14 (Ohio Power Siting Bd. Nov. 21, 2013) (granting
motion of proposed intervenors who claimed that the wind project would have ?potential
impacts? on ?their residences, land, roads, and 

D. The Bratenahl Residents Are Entitled To Intervene

 

I. The Intervenors Ha ve Real And Substantial Interests In This Proceeding

The Bratenahl Residents are long-time residents of Cuyahoga County. They have set
forth above the important interests they are entitled to protect in this proceeding. Those interests
are further delineated as follows:

0 Killing of Birds and Bats. The wind turbines in the Proposed Project
will kill substantial numbers of birds and bats. It is well established that
wind farms cause large-scale kills of birds and bats, that risk
assessments and post-construction mortality studies by wind industry-
paid consultants systematically underestimate such bird and bat kills,
and that Lake'Erie is in the migratory path for hundreds of millions of
birds. Applicant has not performed any scienti?cally-sound studies to
justity its assertion that the risk to birds and bats is ?low.? Furthermore,
Applicant?s assertions of minimal environmental impacts ignore a
considerable body of published research on migratory bird ecology

 

2See also In the Matter of the Application of Champatgtr Wind. No. 
BGN, slip op. 3-6. times, 25 (Ohio Power Siting Bd. Aug. 2, 2012) (granting motion to
intervene of ?property owners who own real estate and reside within the footprint of the" wind
turbine project and who ?have a direct and substantial interest in [the] matter, in light of the
potential visual, aesthetic, safety, and nuisance impacts of the wind project on their residences,
land, and community?); In the Matter of the Application of American Transmission Systems, Inc,
No. 12-1636-EL-BTX, slip op. at 1-2. ?3-6 (Ohio Power Siting Bd. May 21, 2014) (granting
motions to intervene of preperty owner along the possible alternate route of a proposed
transmission line).

16

 




from the community scale birds cross Lake Erie in far greater
numbers than suggested) to the individual bird scale birds change
altitudes throughout migration, exposing individuals to the R52 of the
wind turbines, even if an individual bird's average migration height is
above the R82). An important example of ignored critical research is
recent research that establishes that the Kirtland's warbler (a federally-
listed and Ohio-listed endangered species) passes over Lake Erie,
including through the Proposed Project area, during every spring and
fall migration rebutting the Applicant?s assertions to the contrary.
Moreover, draft Environmental Assessment is inadequate in
critical aspects of its analysis. And as USFWS has noti?ed DOE, a full

Environmental impact Statement is reguired for the Proposed Protect.

 

Environmental Degradation. The wind turbines in the Proposed
Project will cause an aesthetic blot on the views in and around of Lake
Erie.

Freshwater Species Habitat: Lake Erie's shallow depth provides a
unique habitat for freshwater species. The Proposed Project will
negatively impact that unique habitat. In addition, it is not fully known
how noise associated with the Proposed Project will impact aquatic
wildlife.

Irregular A fundamental problem with wind power is
irregular intermittency wind turbines do not produce electricity when
the wind is not blowing. The problem of irregular intermittency is
exacerbated by the fact that wind farms do not have the capability to
effectively $93 the electricity that has been generated so that it can be
distributed when the wind is not blowing. For these reasons, wind
energy is not suf?ciently reliable to meet the cyclical demands of
Ohio consumers for electricity; is not economically competitive
with other methods of electricity generation; and requires
duplicative fossil fuel-?red generation capacity due to the 
low capacity ascribed to wind-powered electricity for the PM
grid. .

Subsidies to Out-of-Statc Producers. The 130th Ohio General
Assembly?s 310 eliminated the requirement of former R.C.
4928.64 that electric distribution companies and electric services
companies purchase one-half of their renewable energy resources from
facilities located in Ohio. With the elimination of that in-state
requirement, the cost of electricity from renewable resources paid by
Ohio consumers may include costs for the development and operation
of such facilities outside the state of Ohio. in short, Ohio consumers
would be subsidizing the cost of renewable energy resources in other
states. Such subsidies are not in the best interest of Ohio consumers.

l7

 

 

- Interference with Recreation and Enjoyment. The construction and
Operation of the Proposed Project will interfere with the Bratenahl
Residents' enjoyment and use of the Lake Erie and its shoreline,
including recreational ?shing and boating, as well as enjoyment of the
unobstructed view of the horizon.
Increased Cost of Electricity. The cost of electricity generated by the
Proposed Project will be higher than competitively-bid electricity sold
to the PJM system from other generators, notwithstanding the use of
taxpayer funds to subsidize construction of the Project. Legislative
mandates requiring the retail distribution of this higher-cost electricity
will increase electricity rates for all consumers. This market distortion
harms all ratepayers. and is a misuse of taxpayer funds.
2. The Bratenahl Residents Interests Are NotAIremly Adequateb! Represented.
The Braten?ahi Residents? interests are not adequately represented by the existing parties
in this case. No existing party to this action has a direct interest in comprehensively addressing
the effects that the Proposed Project will have with respect to: preserving of affordable.
reliable, safe. and fuel-secure electricity sopplies for Ohio?s consumers; (2) protecting birds and
bats; (3) protecting the shallow-depth habitats for Lake Erie aquatic wildlife; and (4) preserving
residents? enjoyment and recreation use of the Lake. Absent intervention. the Bratenahl

Residents will have no effective means to protect their vital interests in this proceeding.

3. The Brateualtl Residents Will Contribute To A Just And Expeditions Resolution
0f Issues

The Bratenahl Residents' intervention will contribute to a just and eitpeditious resolution
of the issues in this proceeding. They have unique, independent perspectives on the implicated
environmental and energy issues to offer the Board. Their participation is crucial to an informed,
balanced, and fair disposition of the interests of ill parties who will be affected by the OPSB's

findings and determinations in this proceeding.

18

 

 

4.

The Bratenah! Residents' Intervention Will Neither Delay This Proceeding Nor
Prejudice Parties

The Bratenahl Residents? intervention will neither unduly delay this proceeding nor

unjustly prejudice any existing party. They will abide by all OPSB deadlines and present their

evidence in a clear and concise manner.

For the foregoing reasons, the Bralenahl request the OPSB to grant this Petition To

Intervene.

19

Respectfully submitted,

ls/ John F. Stock

John F. Stock (0004921)

Orla E. Collier (0014317)

BENESCH FRIEDLANDER COPLAN
8r. ARONOFF LLP

41 3. High 31., 26?? Floor

Columbus, Ohio 43215

(614) 223-9300

Attorneys for W. Susan Dempsey, Robert M.
Maloney, Gregory Binford, and Leon
Blazey. Jr.

 

gERfllelCATE OF SERVICE

The Ohio Power Siting Board?s e-?ling system will electronically serve notice of the
?ling of this document on the parties referenced in the service list of the docket card who have
electronically subscribed to this case. In addition, the undersigned certi?es that a copy of the
foregoing document is also being served upon the persons below via electronic mail this 22nd
day of January, 2018.

Isl John F. Stock
John F. Stock (004921)
Counsel:

cpirlk@dic5in sonwri ght.com
todonnell@dickinsonwright.com





,nov

AdministratiVe Law Judges:

Danie1.fullin@Quco.ohio.gov


20

 

 

This foregoing document was electronically ?led with the Public Utilities
Commission of Ohio Docketing Information System on

?il22l2018 4:16:59 PM

In

Case 

Summary: Petition to Intervene of Bratenahl Residents W. Susan Dempsey. Robert M.
Maloney, Gregory Blnford. and Leon Blazey, Jr. electronically filed by John Stock on behalf
of W. Susan Dempsey and Robert M. Maloney and Gregory Binford and Leon Blazey, Jr.

 

Exponent

Exponent. up Drive

Motrin I'ul. CA was;
Insc- urn-mm
t'trur?ntlr tumult-loos.

Sepmmb?? i i, 20] 7 w- rum

John Stock. Esq.

Partner

Benesch. Friedlandcr. Coplan dt Aronol?f LLP
41 South High Street, Suite 2600

Columbus. OH 432 I 5

Subject: lcebreaiter Windpouver
Exponent Project No. 1707425

Dear Mr. Stock:

Thank you l'ory?our interest in retaining Exponent, inc. (Exponent) to provide services related to
the above-referenced project. This letter presents our current understanding ofthe scope of
services sought and the terms oi?the engagement

?Our scope or services is anticipated to include engineering consulting as requested on the about
matter. This project shall be performed at the direction ot'Benesch Friodiander Copied or
Aronot'l? LLP, but'ls generally expected to include expert witness support related to the
lcebrealrer Windpower project including issues related to the economic viability ot'a small
wind turbine ?eet; (2) the general economics of wind power generation in the United States; end
(3) the impact ol? extensive Wind fault development on current PJM baseload and price impact.

Expo?ncnt's services will he prOvided on a time-and-ettpense basis. Charges will include
?prol?e'ssional fees. eouipmeht' use fees. and other expenses according to our

Schedule efficient: Chorgas,.a copy of which ls enclosed and made apart 11er by reference.

Eitponent charges 8430 per hour for my services in calendar year 2017. Other Exponent staff

member?s will be utilized whdr?e'cppropri'ate.

Exponent's services are provided only in accordance with our librms and Conditions of
Agreement. a copy of which is enclosed and made a part hereof by reference. it is our
understanding that Exponent's retention on this project is with Bones-ch. Friedlander. Coplan (it
Anon?oti" LLP, on behalf of Murray Energy Corporation (Murray Energy), and, as such. all
charges fees and ettpenaes) incurred by Exponent on this project will be billed to your
of?ce but will be the responsibility of Murray Energy. Independent of other parties/payees
involved. Please verify the-contact information for billing purposes in the table at the end of this
letter. if it is not correct, please provide the updated For purposes of the Term and
Conditions ongreemcm, ?client" shall mean Murray Energy.

?amenco-cert

BROUDD1 5

 

 

 

John Stock, Esq.
September I 
Page 2

Based on the information you have provided. we have performed it eon?ict-of-intesest check for
the following parties:

Murray Energy Corporation
Bonheur ASA

Lake Erie Energy Development


Icebreaker Wind

Fred.0lsen Renewable:

Using this information, Exponent has determined that it does not currently have a con?ict that
would preclude us. from assisting you in this matter. Please inform us as soon as possible if this
list of parties is inaccurate or incomplete. and if other parties become involved as this matter
proceeds. 

This proposed retention letter is Valid for IS days from the date first set forth above. Please sign
and return this letter if you would like us to proceed with this work. ii'you have any questions or
require additional information, please do not hesitate to contact me at (303) 882?6469. We look
forward to working with you.

Sincerely,



Richard Es Brown. PeE'u

Principal Engineer Practice Director 
?"5ng E. 575mg if

Enclosures (2) Ne and Titl

  
 

Accepted by: I

    

 

Organ' ntlo
13 717
Dole 
immemom Exits

BR000016

 

 

John Stock, Esq.

September ll. 20?

Page 3


By delhull. Exponent will mail lnvolm to the ?nail addrusles) listed below. Please mll?y Ill: email
addrusas) as well as any tarmac: information that should be contained on the Invoice.

If you wish to recslve hard cupls of lswolcus vlu US Mail. please check lb: hex below and provide 
midi-cams) to which the hard copl? should be 

 

 

 

 

 

 

lnvolce
Reference
Numberls]: -
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.lohrl Stock, Esq. I Partner 

 

 

 

 

 

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SCHEDULE OF RATES AND CHARGE
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EXHIBIT 

 

BEFORE
THE OHIO POWER BOARD

In the Matter of the Application of 
Paulding Wind Farm LLC to Amend 
Phase of the Certi?cate of Case No. 15-2030-EL-BGA
Environmental Compatibility and Public 
Need Issued in Case No. 10-0369-EL-BGN 

In the Matter of the Joint Application of 
Paulding Wind Farm LLC and Paulding 
Wind Farm LLC to Amend the Case No. 
Certi?cate of Environmental Compatibility 
and Public Need Issued in Case No. 09- 



0980-EL-BGN

PETITION OF THE CAMPAIGN FOR AMERICAN AFFORDABLE AND RELIABLE
ENERGY TO INTERVENE

Pursuant to R.C. and O.A.C. 4906-2-12, the Campaign For American
Affordable And Reliable Energy, LLC hereby petitions the Ohio Power Siting
Board (the for an order granting its intervention as a party in this proceeding.

This Petition to Intervene is supported by the Memorandum In Support set forth below.

Respectfully submitted,

Isl John F. Stock

John F. Stock (000492 I)

Orla E. Collier (00143 
BENESCH, FRIEDLANDER,
COPLAN ARONOF LLP
41 3. High St., 26'" Floor
Columbus, Ohio 43215

(614) 223-3300

FAX: (614) 223 -93 30

Attorneys for the Campaign For American
A?ardable And Reliable Energy, LLC

 

MEMORANDUM IN SUPPORT OF
PETITION TO INTERVENE OF CAARE

On August 28, 2010, the OPSB issued an Opinion, Order, and Certi?cate in OPSB Case
No. 09-0980-EL-BGN (the ?Timber Road I Case?), pursuant to which the OPSB granted to
Paulding Wind Farm LLC a certi?cate of environmental compatibility and public need to
construct a wind turbine facility in Paulding County comprised of, inter alia, 32 wind turbines,
access roads, a collection line system, transformer substation, and related facilities and
equipment (together, the ?Timber Road I Project").

On November 18, 2010, the OPSB issued an Opinion, Order, and Certificate in OPSB
Case No. 10-0369-EL-BGN (the ?Timber Road II Case"), pursuant to which the OPSB granted
to Paulding Wind Farm II LLC a certi?cate of environmental compatibility and public need to
construct a wind turbine facility in Paulding County comprised of, inter alia, 98 wind turbines,
access roads, a collection line system. transformer substation, and related facilities and
equipment (together. the ?Timber Road II Project").

On February 28, 2011, the OPSB issued an Order on Certi?cate Amendment in Case No.
to amend the Timber Road Project certi?cate of environmental
compatibility and public need. By that Order, the OPSB permitted Paulding Wind Farm II LLC
and Paulding Wind Farm LLC to assign 37 of the 98 certi?cated wind turbines (now reduced
to 95 turbines) in the Timber Road ll Case to Paulding Wind Farm ill LLC. in addition, the
Timber Road II Project was divided into two phases: Phase 1, consisting of 55 turbines, to be
built by Paulding Wind Farm II LLC, and Phase II, consisting of 37 turbines, to be built by
Paulding Wind Farm 111 LLC.

In July 201 1, construction of the 55 turbines for Phase I of Timber Road II Project was

completed and that phase became operational.

 

On December 9. 2015, Paulding Wind Farm LLC ?led an application to amend the
certificate granted in the Timber Road II Case (No. 10-0369) for Phase II of Timber Road 11
Project. That application is the subject of current Case No. 15-2030-EL-BGA.

On December 9, 2015, Paulding Wind Farm LLC and Paulding Wind Farm LLC ?led
an application to amend the certi?cate granted in the Timber Road I Case (No. 09-0980). That
application is the subject of current Case No. 

Pursuant to these current applications to amend. Paulding Wind Farm LLC and Paulding
Wind Farm LLC seek to, inter alia. obtain OPSB approval for revised grid interconnection
points, access roads, collection line system designs, and to add an additional turbine model for
the Timber Road I Project and Phase II of the Timber Road 11 Project (together, the ?Amended
Timber Road Projects").

CAARE seeks to intervene in this these cases, Nos. 15-2030 and 15-203], to oppose the
requested amendments. CAARE is a non-pro?t corporation formed under the laws of the state of
Ohio. principal of?ce is located in Cleveland, Ohio.

purposes include the following:

I To meet the need for consistent advocacy for affordable and reliable
American energy;
0 To protect, preserve and promote America?s affordable and reliable coal.

?red electricity generation, transmission and distribution and the Coal
Industry that supports it, including coal production, transportation and
supply and labor;

0 To challenge unworkable and arti?cial renewable energy portfolio
standards and ?nancial and tax incentives for alternative energy sources
on both a state and federal level;

0 To participate in state and federal siting certi?cation, licensing and
permitting proceedings to ensure that alternate energy sources fully
comply with all applicable standards and regulations including impact on
the community, environment and natural wildlife resources;

 

- To participate in state and federal legislative and rule-making proceedings
that impact America's energy future, environment and natural wildlife
resources. To support and promote public awareness and education
concerning America's energy future, environment and natural wildlife
resources.

CAARE's membership includes a number of Operating coal production, transportation
and logistics and manufacturing companies located in Ohio, West Virginia and the region. To
the extent located in Ohio, these companies are property owners of facilities in Ohio, Ohio
taxpayers. and Ohio electric ratepayers served by electric distribution companies in Ohio.

In compliance with R.C. and 0.A.C. CAARE submits
that it has real and substantial interests in these proceedings and that disposition of these
proceedings may, as a practical matter, impair or impede its ability to protect those interests.

CAARE further submits that it meets all requirements for intervention in this proceeding
as set forth in R.C. and O.A.C. The Board may consider the
following when determining petitions to intervene:

The nature and extent of the person?s interest;

The extent to which the person's interest is represented by existing parties;

The person?s potential contribution to a just and expeditious resolution of the
issues involved in the proceeding; and

Whether granting the requested intervention would unduly delay the proceeding
or unjustly prejudice an existing party.

O.A.C. See also In the Matter of the Application of Clean Energy Future?:-
Lordstown. LLC. No. slip op. at 2, 115 (Ohio Power Siting Bd. July 28, 2015)
(setting forth factors Board considers in resolving motions to intervene); In the Matter of the
Application of Columbus Southern Power Co., No. slip op. at 3, 118 (Ohio

Power Siting Bd. Jan. 29, 2004) (same).

 

The Ohio Supreme Court has interpreted this rule as providing that '[a]ll interested

parties may intervene in [Board] proceedings upon a showing of good cause.? State. ex reI. Ohio

Edison Co. v. Parr-alt. 73 Ohio St.3d 705, 708 (1995) (citation omitted).

I. (MARE Has A Real Ami Substantial Interest In This Matter

The construction of the Amended Timber Road Projects, and the integration of thOSe

projects into the RIM interconnection grid, present substantial problems for the preservation of

affordable, reliable, safe, and secure supplies of electricity for all consumers in Ohio, including,

but not limited to:

Irregular A fundamental problem with wind power is
irregular intennitteney wind turbines do not produce electricity when the
wind is not blowing. The problem of irregular intermittency is exacerbated
by the fact that wind farms do not have the capability to effectively 
the electricity that has been generated so that it can be distributed when
the wind is not blowing. For these reasons, wind energy is not 
suf?ciently reliable to meet the cyclical demands for energy of Ohio's
electricity consumers; and economically competitive with other
methods of electricity generation that power the PJM interconnection grid.

Destabilizmion of the PM Grid. The irregular and unexpected surges of
electricity into the HM interconnection grid caused by wind turbine
facilities destabilize the grid. Surges of electricity caused by wind turbine
facilities have been known to cause power outages in electric grids.

Subsidies to Out-of-Stnte Producers. The 130th Ohio General
Assembly?s 310 eliminated the requirement of former R.C.
4928.64 that electric distribution companies and electric services
companies purchase one-half of their renewable energy resources from
facilities located in Ohio. With the eiimination of that in-state requirement,
the cost of electricity from renewable resources paid by Ohio consumers
may include costs for the development and operation of such facilities
outside the state of Ohio. In short, Ohio consumers would be subsidizing
the cost of renewable energy resources in other states. Such subsidies are
not in the best interest of Ohio consumers.

Protection of Wildlife. The sixty-nine (69) wind turbines in the Amended
Timber Road Projects threaten protected migratory birds and endangered
bird and bat species and their habitat subject to the protection of the
federal Migratory Bird Treaty Act and the Endangered Species Act. It is

 

well established that wind farms can adversely impact protected species
and their habitat.

- Damage to Infrastructure. The construction and operation of the
Amended Timber Road Projects will adversely impact the roads and other
public infrastructure in the areas surrounding those projects and in other
areas of the state.
- Environmental Degradation. The wind turbines in the Amended Timber
Road Projects will cause substantial noise pollution and changes in
barometric pressure that are likely to have adverse effects for protected
wildlife species as well as human residents. Moreover. the proposed
substantial number of wind turbines will cause an adverse aesthetic impact
on the rural landscape of Paulding County.
- Community Impacts. The construction and operation of the Amended
Timber Road Projects at the sites will adversely impact property values in
the area, and will interfere with enjoyment and use of that property.
2. CAARE ?s Interests .4 re Not Already Adequateb! Represented
I CAARE's interests are not adequately represented by the existing parties in these cases.
No existing party to these actions has a direct interest in comprehensively addressing the effects
that the construction and operation of the Amended Timber Road Projects will have for the
preservation of affordable, reliable, safe, and secure electricity supplies for Ohio?s consumers. It
is the very purpose of non-pro?t CAARE to advocate for protecting such energy resources in an
informed and independent manner. CAARE has a vital interest in seeking appropriate protection
for Ohio's energy resources for Ohio?s consumers. Absent intervention, CAARE will have no
effective means to protect their interests in this matter.
3. CAARE Will Contribute To A Just Amt Expedition Resolution Oflssues
intervention will contribute to a just and expeditious resolution of the issues in
these proceedings. CAARE has a unique, independent perspective on the implicated energy

issues to offer the Board, which will prove advantageous to an informed, fair disposition in these

proceedings.

 


A.

4. CAARE's Intervention Will Neither Delay These Proceeding Nor Prejudice
Parties

intervention will neither unduly delay these proceedings nor unjustly prejudice
any existing party. CAARE will abide by all Board deadlines in these cases and present its
information in a clear and succinct manner. No date has been set for any hearing nor has any
speci?c deadline been established by the Board in these proceedings. This motion to intervene is
timely and will not unduly prejudice any existing party.

?Regarding procedural matters, the Power Siting Board ?has the discretion to decide how
it may best proceed to'manage and expedite the orderly ?ow of its business. avoid undue
delay and eliminate unnecessary duplication of effort.? In re Application of American
Transmission Systems. inc, l25 Ohio St.3d 333, 336, at 1117 (citations omitted).
R.C. 4906.08 generally governs the right to intervene in proceedings before the Power Siting
Board.1

The Power Siting Board has allowed intervention for a variety of reasons. In several
cases, the Board granted motions to intervene where the proposed intervenors have argued that
the proposed construction and operation of wind turbines may affect the operation of their
businesses:

. in the Matter of the Application of Hardin Wind Energy LLC. No. 

BGA, slip op. at 2-3, W841 (Ohio Power Siting Bd. July 29, 2011) (granting the

motions to intervene of a ?member-owned distribution electric utility? and a
?wireless communications company? operating in the county in which the project

 

"?Pursuaat to R.C. 4906.12, [the Supreme Court] must apply the same standard of
review to Power Siting [Board] determinations as we apply to orders by the Public Utilities
Commission.? R.C. 4903.13 applies to board proceedings pursuant to R.C. 4906.12 and provides
that an order ?shall be reversed, Vacated, or modified by this court only when, upon consideration
of the record, the court ?nds the order to be unlawful or unreasonable.? in re Application of
American Transmission Systems. Inc. 125 Ohio St.3d 333, 336, 2010-0hio-184l at 1 l7
(citations omitted).

 

was to be sited and which asserted that the preposed wind turbines may interfere
with microwave radio signals used tn their businesses).

- In the Matter of the Application of Buckeye Wind LLC. No. 08-666-EL-BGN. slip
0p. at l, 1]1l2(0hio Power Siting Bd. Oct. 30, 2009) (granting motion to intervene
of the Champaign Telephone Company which asserted that ?the proposed location
of wind turbines in Champaign County may interfere with broadband and point-
to-point signals sent to provide digital subscriber line (DSL) service from the
Telephone Company's tower?).

- In the Matter of the Application afBuciteye Wind LLC. No. slip
op. at 1-2, 11113 5 (Ohio Power Siting Bd. Sept. 1, 2009) (granting motions to
intervene of the owner and operator of ?a country club in the area of Champaign
County where the Buckeye wind project is proposed to be located" and which
?wind project may create temporary or permanent disruption in golf course
operations and may limit access to the property by its club members").

- in the Matter of the Application of the City of Hamilton and American Municipal
Power. Inc. ., Nos. dc slip op. at 2, 15 (Ohio
Power Siting Bd. Oct. 4, 2011) (granting motion to intervene of farmer who
asserted that construction of two transmission line towers on his property would
?interfere with his farming and [topsoil sale] business operation").

- in the Matter of the Application of Champaign Wind, LLC. No. 
slip op. 2-3, 11115-6, 8 (Ohio Power Siting Bd. Oct. 22, 2012) (granting motion to
intervene of ?member-owned electric distribution cooperative" which asserted
that the ?proposed turbines will interfere with its microwave systems"). .

In the Matter of the Application of American Transmission Systems. No. 04-264-
slip op. at 1-2, W46 (Ohio Power Siting Bd. Nov. 23, 2004) (granting
motion to intervene of the owner and operator of a land?ll because the location of

the proposed transmission line was in an area where the Ohio EPA had previously
issued a permit for land?ll expansion).

The Board has also regularly allowed nonpro?t organizations to intervene in its
proceedings. For example, the Board has granted numerous motions of the Ohio Farm Bureau
Federation to intervene in cases involving wind energy projects. The Federation is a statewide
non-pro?t organization with resident, farm, and small business members in each of the state?s
counties, and the Federation asserts that its local members ?have an interest in effective wind
energy development, wind leasing agreements, and assurances that project construction activities

adhere to applicable soil and water conservation and air quality standards, as well as other

 

environmental considerations." In the Matter of the Application of 601] Greenwich Windpark.
LLC. No. 13-990-EL-BGN, slip op. at 1-2, 11113-4 (Ohio Power Siting Bd. March 10. 2014).2
For the foregoing reasons, CAARE requests the Board to grant this Motion To Intervene.

Respectfully submitted,

John P, Stock
John F. Stock (0004921)

Orla E. Collier 111 (0014317)
BENESCH FRIEDLANDER COPLAN
ARONOFF LLP

41 3. High 31., 25?" Floor

Columbus, Ohio 43215

(614) 223-9300

Attorneys for Campaign for American
A?ordable A nd Reliable Energy



 

2See also In the Matter of the Application of Black Fork Wind Energy, No. 10-2865-
EL-BGN, slip 0p. at 1-2, 11112-4 (Ohio Power Siting Bd. May 3, 2011); In the Matter of the
Application of Hardin Wind LLC, No. 13-1177-EL-BGN, slip op. at 1-2, 11112-4 (Ohio Power
Siting Bd. Aug. 26, 2013); In the Matter of the Application of Buckeye Wind 1.1.0. No. 08-666-
EL-BGN, slip 0p. at 2-3, 7 (Ohio Power Siting Bd. July 31, 2009); In the Matter of the
Application of JW Great Lakes Wind, LLC. No. 09-277-EL-BGN, slip op. at 5, 118 (Ohio Power
Siting Bd. Sept. 18, 2009); In the Matter of the Application of Panlding Wind Farm, LLC. No.
slip op. at 5, 118 (Ohio Power Siting Bd. Feb. 23, 2010); In the Matter of the
Application off-log Creek Wind Farm. LLC, No. slip op. at 3. 119 (Ohio Power
Siting Bd. Sept. 21, 2010); In the Matter of the Application of Champaign Wind, No. 12-
160-EL-BGN, slip op. 5-6. 111124-25 (Ohio Power Siting Bd. Aug. 2, 2012); In the Matter of the
Application oj'Northwest Ohio Wind Energy, No. slip op. at 4, 1112-13 (Ohio
Power Siting Bd. Aug. 22, 2013).

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certi?es that a true and correct copy of the foregoing Motion To
Intervene was served, via regular US. mail, postage prepaid, this 28th day of January. 2016,

upon all parties listed in the attached Exhibit A.

Isl John F. Stock
John F. Stock

 

Chad A. Endsley

Chief Legal Counsel

Leah . Curtis

Amy M. Milam

Ohio Farm Bureau Federation
280 North High Street

P.O. Box 182383

Columbus, OH 43218-2383

Debra Hight

Public Utilities Commission of Ohio
180 E. Broad Street

Columbus OH 43231

Michael J. Settineri

Stephen M. Howard

Ryan D. Elliott

Vorys. Sater. Seymour and Pease LLP
52 East Gay Street

Columbus OH 43215

EXHIBIT A

Paulding Wind Farm LLC
Steven Howard

52 Best Gay Street

PO. Box 1008

Columbus OH 43215

Kimberly Keaton

Ohio Attorney General's Of?ce
Public Utilities Section

180 East Broad Street, 6th Floor
Columbus OH 43215-3793

 

This foregoing document was electronically ?led with the Public Utilities

Commission of Ohio Docketlng Information System on

1I2812016 10:01 :26 AM

in

Case Nels). 15-2030-EL-BGA



Summary: Petition Petition of the Campaign for American Affordable and Reliable Energy to
intervene electronically ?led by John Stock on behalf of Campaign for American Affordable
and Reliable Energy

 

In the Matter of the Application of
Paulding Wind Farm and Paulding Wind
Farm LLC for Amendments to Their
Certi?cates to Install and Operate a
Wind-Powered Electric Generation
Facilities in Paulding County, Ohio.

BEFORE

THE OHIO POWER SITING BOARD


I Case No. 
Case No. 



ENTRY

 

The administrative law judge finds:

(1)

(2)

(3)

(4)

On August 23, 2010, in In re Pnulding Wind Pam: LLC, Case No.
(09.980), the Board issued an Opinion, Order,
and Certi?cate granting the application of. Paulding Wind Farm
LLC for a certificate to construct Timber Road I, a windapowered
electric generating facility in Paulding County, Ohio, consisting
of up to 35 turbine sites with a combined generation capacity of
48.6 megawatts (MW).

On November 18, 2010, in In re Pnulding Wind Pam: II LLC, Case
No. (10-369), the Board issued an Opinion,
Order, and Cerlificate granting the application of Paulding
Wind Farm II LLC for a certificate to construct Timber Road II, a
wind-powered electric generating facility in Paulding County,
Ohio, consisting of up to 98 turbine sites with a combined
generation capacity of 150.4 MW.

On February 28, 2011, in In re Pauldiug {Mud Farm II LLC, Case
No. 10-3128-EL-BGA (10-3128), the Board issued an Order on
Certificate Amendment permitting Paulding Wind Farm II LLC
to amend the certi?cate granted in 10-369. Changes included
an increase the hub height of the approved Vestas V100 1.8
MW turbine model from 262.5 feet to 311.7 feet, the addition of
a new permanent meteorological tower, and the removal of
three of the previously approved meteorological tower
locations.

On February 28, 2011, in 10-369, the Board authorized the
bifurcation of the project approved in 10-369 into two phases.
As a result of this bifurcation, Phase I of the project continues
to be known as Timber Road II. It consists of 55 operational

 

 et a1.

(5)

(6)

(7)

(3)

turbines and began commercial operation in July 2011. Phase II
of the project approved in 10-369 is now known as the Timber
Rand It consists of 37 unconstructed turbine locations and
has been assigned to Paulding Wind Farm LLC.

On December 9, 2015, in In re Pauldiug Wild Fanu LLC, Case
No. (15-2030), Paulding Wind Farm LLC
filed an application to amend the certi?cate, first issued in 10-
369 and later amended in 10-3128, which authorizes Timber
Rand HI. .

On December 9, 2015, in Case No. (15-2031),
Paulding Wind Farm LLC and Paulding Wind Farm LLC
(Applicants) ?led a joint application to amend the certi?cate,
issued in 09-980, which authorizes Timber Road I. The project
areas involved in 15-2030 and 15-2031 partially overlap and are
both located entirely in Paulding County, Ohio. On February
17, 2016, the Applicants supplemented their. filings in both 15-
2030 and 15-2031 to modify the layout of several collection lines
and access roads.

R.C. provides that the Board shall hold a hearing on
an application for an amendment of a certificate, if the
proposed change would result in a material increase in any
environmental impact of the facility, or a substantial change in
the location of all or a portion of the facility. Ohio Adm.Code
provides that the administrative law judge
(ALI) shall schedule a hearing in an amendment case, if the
proposed change would result in any significant adverse
environmental impact of the certi?ed facility or a substantial
change in the location of all or a portion of such certified
facility.

Staff filed a combined investigative report (Staff Report) for
both 15-2030 and 15-2031 on March 23, 2016. In its report, Staff
states it has reviewed the applications and notes that the
Applicants have proposed: changes to access roads; 
changes to collection lines; establishing a new transmission
line interconnection point; adding the Gamesa 6114 turbine
model to the list of approved turbine models for the two
projects; the removal of tour speci?c previously approved
Timber Road I turbine locations and one specific previously
approved Timber Road HI turbine location; notice that four

 




15-2030-EL-BGA et al.

(9)

turbine sites previously approved for both projects will be
dropped by one but exclusively retained by the other of the two
projects; a proposed relocation of the collector substation
serving both projects; and increasing the combined facility
output by 0.8 MW. (Staff Report at 3-4.)

Staff finds that the addition of the Gamesa 6114 turbine model
would not impact the location of any facilities and would not
result in a material increase in environmental impact.
Additionally, Staff determines that neither the increase in
nameplate capacity nor the point interconnection result in a
substantial change in the location of all or a portion of the
certified facilities and would not result in a material increase in
environmental impact. With respect to the proposed
modifications to the access roads, collection lines, and the
relocation of the collection substation, Staff also finds that the
changes to these facilities would pose no material increase in
environmental impact. However, Staff finds that the proposed
relocation and addition of the access roads, collection lines, and
the relocation of the collection substation constitutes
substantial changes in the locations in these portions of the
certi?ed facilities. Staff recommends that the Board approve
the applications as proposed, provided that the certi?cates
include the conditions specified in the opinions, orders, and
certi?cates issued in 09-980, 10-369, and 10-3128, including the
Applicants? compliance with the applicable stahitory setback
requirements. (Staff Report at 10-11.)

As stated previously, R.C. sets forth two separate
and distinct reasons that would require the Board to hold a
hearing on an amendment application; the first being that the
proposed amendment would result in a material increase in
any environmental impact of the facility. The administrative
law judge (ALI) finds that none of the proposed changes in the
amendment applications would result in a material increase in
any environmental impact of the facilities. Therefore, R.C.
4906.076) does not require a hearing with regard to
environmental impact of the facilities, as amended.

The second reason necessitating a hearing is if there is a
substantial change in the location of all or a portion of the
facility. The ?nds that the following four proposed
changes in the amendment application do not result in a

 

 et al.

(10)

(11)

substantial change in the location of all or a portion of the
facilities: adding the Gamesa G114 turbine model to the list
of approved turbine models for the two projects; 
eliminating four speci?c previously approved Timber Road I
turbine locations and one speci?c previously approved Timber
Road turbine location; notice that four hu'bine sites
previously approved for both projects will be dropped by one
but exclusively retained by the other of the two projects; and
increasing the combined facility output by 0.8 MW.
Therefore, R.C. does not require a hearing with
regard to these four changes.

However, the finds that the following four proposed
changes in the amendment application require a hearing under
RC. because they entail a substantial change in the
location of all or a portion of the facilities: the proposed
modification of access roads; the proposed modi?cation of
collection lines; the proposed relocation of the collector
substation, and establishing the proposed new transmission
line interconnection point. Accordingly, a hearing should be
held solely to consider the portion of the amendment
application related to these four changes under the provision in
RC. which requires a hearing if there is a
substantial change in the location of all or a portion of the
certified facility.

In order to facilitate the Board's timely consideration of the
applications, parties should adhere to the following procedural
schedule:

April 22, 2016 - Deadline for the filing of all direct
testimony.

The hearing shall commence on April 28, 2016, at
11:00 at the offices of the Public Utilities
Commission of Ohio, Hearing Room 11-D, 180 E.
Broad Street, Columbus, Ohio.

On December 21, 2015, the Ohio Farm Bureau Federation
(OFBF) filed a motion to intervene in this case. OFBF states
that it maintains a non-profit organization representing
agricultural interests with over 190,000 member families
statewide, including over 490 families in the Paulding County

 

 et al.

(12)

(13)

Farm Bureau. OFBF members are involved in farm and
agribusiness activities and have a keen interest in effective
wind energy development. OFBF claims that it has extensive
experience gathering input, addressing the needs of and
representing the local interests of farm, small business, and
rural residents concerning energy development and, as such,
brings a perspective that cannot be provided by another
existing party. This perspective includes pursuing adherence to
procedures ensaring soil and water conservation and air
quality, environmental considerations such as setbacks, noise
standards, and shadow flicker, and enhancements to local
commerce and economic development. On a state level, OFBF
was involved with the Ohio Department of Development a
Ohio Wind Working Group representing farm, small business,
and residential energy consumers. OFBF explains that it was
involved in several wind farm certification cases, including as a
party of record in 09-980, 10-369, and 10-3128. As such, OFBF
fully understands and appreciates the rules governing the
Board evaluation process. It also claims that its participation
will not cause undue delay or unjustly prejudice any existing
party and will contribute to the just and quick resolution of
issues and concerns raised.

Upon review, the finds that the motion to intervene filed
by the OFBF meets the requirements for intervention set forth
in RC. 4906.08 and Ohio Adm.Code 4906-2-12, and its motion
to intervene is unopposed. Accordingly, the finds that the
OFBF should be granted intervention in this case.

On January 28, 2016, the Campaign for American Affordable
and Reliable Energy, LLC (CAARE) filed a petition for leave to
intervene in both 15-2030 and 15-2031, together, certificate
amendment applications involving what CAARE calls the
Amanded Timber Road Projects.? CAARE describes itself as a
non?profit Ohio corporation, headquartered in Cleveland,
whose purposes, among other things, include: to meet the
need for consistent advocacy for affordable and reliable
American energy; to preserve and protect the coal industry
in its support of coal production, transportation and supply
and labor; to challenge renewable portfolio standards and
financial and tax incentives for alternative energy sources on
both a state and federal level?; and to participate in state and
federal siting certification proceedings to ensure compliance

 

 et al.

(14)

(15)

(16)

with all applicable standards and regulations. CAARB
membership includes a number of operating coal production,
transportation and logistics, and manufacturing companies
located in Ohio, West Virginia, and the region. To the extent
located in Ohio, these companies are property owners of
facilities in Ohio, Ohio taxpayers, and Ohio electric ratepayers
served by electric distribution companies in Ohio.

Describing what it states to be its real and substantial interest in
these two cases, CAARE submits the construction of the
Amended Timber Road Projects and integration of those
projects into the PM interconnech'on grid, present substantial
problems for the preservation of affordable, reliable, safe, and
secure supplies of electricity for all consumers in Ohio.
Additionally, CAARE seeks to intervene to address
environmental factors such as wildlife and comnnmity impacts
associated with wind turbines.

On April 11, 2013, the Applicants tiled a Memorandum Contra
in response to CAARE's petition to intervene. The Applicants
assert that intervention should be denied because CAARE has
stated no plausible interest in these proceedings which would
warrant intervention. The Applicants aver that CAARE has not
shown that any of its members own or operate a facility in the
project areas in Paulding County that will be impacted by the
amendments proposed in 15-2030 and 15-2031. Moreover, say
the Applicants, CAARE raises no issues regarding the specific,
limited scope of the amendments proposed in those two cases,
but instead, allege interests in the Timber Road Wind Farm
projects as a whole and wind farms generally. The Applicants
submit that these issues were thoroughly evaluated and
addressed in the Board?s issuance of the certi?cates for the
Timber Road I Wind Farm and the Timber Road II Wind Farm.
Finally, to the extent that CAARE claims any local interest in
the proposed limited amendments, those interests will be
adequately represented by the OFBF given its involvement in
the community with farmers, small businesses, and residents,
including over 490 member families of the Paulding County
Farm Bureau.

CAARE filed a response to the Applicants? memorandum
contra on February 16, 2016. CAARE suggests that its interests
are similar to the OFBF which has been granted intervention in

 

 et a1.

(17)

numerous cases before the Board. CAARE also seeks to
intervene to address the revised interconnection points, access
roads, and collection line system designs as these proposed
amendments will have a direct and substantial impact on the
roads and other infrastructure, as well as wildlife, in the areas
surrounding the projects.

Upon review, the ?nds that petition to intervene
in 15?2030 and 15-2031 should be denied because CAARE has
failed to show that it, or any of its members, have an interest
that relates or will be impacted by the speci?c issues at stake in
these certi?cate amendment applications in Benton and
Harrison Townships, Paulding County, Ohio. The Board has
already addressed many of stated interests in the
original certi?cation dockets involving Timber Road I, Timber
Road H, and Timber Rand and no showing has been made by
CAARE, here, that any of its other stated interests, not
previously addressed, belong within the scope of the two
certi?cate amendment cases now before the Board, namely, 15-
2030 and 15-2031. CAARE's position is distinguishable from
the OFBF as the OFBF stated that it has over 490 families in the
Paulding Cormty Farm Bureau and on a local level OFBF ?eld
staff and volunteer leaders with the Paulding County Farm
Bureau continue to work with wind farm developers,
government leaders, and interested community stakeholders to
explore how wind energy development should be addressed at
the local level. As to the impact of the proposed amendments
on the roads, infrastructure, and wildlife, the notes that the
proposed modi?cations to the access roads, collection lines,
and collector substation are occurring on land that is part of the
wind farm footprint that was already addressed in the original
certi?cation dockets involving Timber Road I, Timber Road II,
and Timber Rand Additionally, issues concerning roads,
infrastructure, and wildlife are already adequately addressed
by the OFBF, an entity with local interests through its member
families in Paulding County. Therefore good cause has not
been shown for granting intervention, and accordingly, it is
denied, in both 15-2030 and 15-2031.

473

 

 et a1! -81
It is, therefore,

ORDERED, That a hearing be held and the procedural schedule for this
proceeding be adopted as set forth in findings (9) and (10). It is, further,

ORDERED, That motion to intervene be granted in accordance with
finding (12). It is, further,

ORDERED, That CAARE's motion to intervene is denied in accordance with
finding (17). It is, further,

ORDERED, That a copy of this Entry be served upon all interested persons of
record.

THE OHIO POWER SITING BOARD
Daniel E. Fullin

By: Daniel E. Fullin
Administrative Law Judge

 

d?h

 

This foregoing document was electronically filed with the Public Utilities
Commission of Ohio Docketing information System on

4l612016 4:14:21 PM

in

Case Nels). 15-2030-EL-BGA. 15-2031-EL-BGA

Summary: Administrative Law Judge Entry ordering a hearing be held and the procedural
schedule for this proceeding be adopted as set forth in ?ndings (9) and that 
motion to intervene be granted in accordance with ?nding and that motion to
intervene is denied In accordance with ?nding 17) - electronically ?led by Debra Hight on
behalf of Daniel E. Fuilin, Administrative Law udge.

 

EXHIBIT 

 

IN THE SUPREME COURT OF OHIO

in the Matter of the Application of
Black Fork Wind Energy, LCC
Regarding its Certi?cate of
Environmental Compatibility and
Public Need Issued in Case

No. 

Case No.:

 

On Appeal from the Ohio Power Siting
Board, Case No. 17-! 

 

NOTICE OF APPEAL OF INTERVENORS-APPELLANTS GARY J. BIGLIN, KAREL
A. DAVIS, BRETT A. HEFFNER, ALAN PRICE, CATHERINE PRICE,
MARGARET AND JOHN WARRINGTON,

 

John F. Stock (0004921), Counsel of Record



Mark D. Tucker (0036855)
mtuclter@beneschlaw.com
Beuescu. FRIEDLANDER. COPLAN 
. ARONOFF LLP

41 South High Street, 26'h Floor
Columbus, Ohio 43215
(614) 223-9300
FAX: (614) 223-9330

Attorneys for Intervenors?Appeltants Gary J.
Karel A. Davis. Brett A. He?irer.
Alan Price, Catherine Price, Margaret
and John Worrington

Chad A. Endsley
eendsley?plb?org
280 North High Street
PO. Box l8283
Columbus, Ohio 43218
(614) 245-8258

Attorney ?air Intervenor Ohio Farm Bureau
Federation

      
 

AUG 0 Z?l?

CLERK OF COURT
SUPREME CDURI 0F 

 

John H. Jones (005 I913)

Assistant Attorney General

Public Utilities Section

30 East Broad Street, l6th Floor
Columbus, Ohio 432l5

(614) 466-4395

Attorney for Appellee Ohio Power Siting
Board

Michael .I. Settineri afRecard

misettineri@vorxs.cgm

MacDonald W. Taylor (0086959)


Vorys, Sater, Seymour and Pease LLP
52 East Gay Street

PO. Box 1008

Columbus, Ohio 43216- I 008

4) 464-5462

FAX: (614) 7l9-Sl46

Attorneys for Applicant Black Fork Wind
Energy, LLC

030:!
aloud a-snratnz

All] DHIIBHQOG-OHAGOEZI

 

Pursuant to R.C. 4903.1l, 4903.13, and 4906.12, Intervenor-Appellants Gary J. Biglin,
Karel A. Davis, Brett A. Heffner, Alan Price, Catherine Price, Margaret and John
Warrington (collectively, ?Appellants?) hereby give notice of their appeal to the Ohio Supreme
Court from the following attached orders of Appellee Ohio Power Siting Board (?Board") in
Case Number 17-1 (1) Order on Certi?cate entered by the Board on December 7,
2017, and (2) Second Entry on Rehearing entered by the Board on June 21, 2018 (collectively,
?Board's Orders"). Pursuant to S.Ct.R.Prac. copies of both of the Board?s Orders
are attached hereto.

Appellants are parties of record in Case Number l7~1 and on December 27,
2017, timely ?led their Application ?rr Rehearing of the Board?s December 7, 2017 Order on
Certificate pursuant to R.C. 4903.10 and 4906.12. -

The Board?s Orders granted Applicant Black Fork Wind Energy, (?Black Fork")
June 6, 20]? Application to Amend the Black Fork Wind Energy. LLC Certificate Issued January
23, 2012 in Case No. thereby amending the Board's January 23, 2012
Certi?cate of Environmental Compatibility and Public Need (?Certificate") in two respects: (1)
the Board approved the use of the Vestas V110 2.2 MW turbine model, a capacity increase from
2.0 MW for the same model that the Board had earlier approved via an amendment to the
Certificate, and (2) the Board extended the deadline for Black Fork to commence construction of
its facility for an additional year, allowing Black Fork to delay commencement of construction
until January 23, 2020?an extension in addition to the two-year extension previously granted by
the Board that is the subject of an appeal pending before this Court in Case No. 17-4l2. The

Board?s Orders are in error for the following reasons:

 

 The Board?s Orders are unreasonable and unlawful to the extent they
impennissibly restrict the scope of lntervenors? intervention, and in particular, to the extent they
purports to preclude Intervenors from addressing the issues of the setback requirements
applicable to the amendment of Black Park?s Certi?cate and the extension of the term of the
Certi?cate. This issue was raised as the ?rst ground for rehearing in Appellants? Application for
Rehearing, and is fully addressed at pages 6-8 of that application.

(2) The Board?s Orders are unreasonable and unlawful because they illegally effect
Black Fork's evasion of the now-applicable setback requirements of R.C. 4906.20 and
R.C. 4906.201. This issue was raised as the second ground for rehearing in Appellants'
Application for Rehearing, and is fully addressed at pages 8-12 of that application.

(3) The Board?s Orders are unreasonable and unlawful because Black Fork faiied to
show good cause for an extension of the Certi?cate. This issue was raised as the third ground for
rehearing in Appellants' Application ?ar Rehearing, and is fully addressed at pages 12-13 of that

application.

  

 

 

10 . Stock (000492l)

Ma . Tucker (0036855)

Falaotnuoea. COPLAN 
ARONOFF LLP

41 S. High St., 26'? Floor

Columbus, Ohio 43215

(614) 223-9300

FAX: (614) 223-9330

Attorneys for Intervenors-Appellanrs Gary 
Biglin. Karel A. Davis, Brett A. Hefner.
Alan Price. Catherine Price. It/largaratf
and Jalm Warringlon

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certi?es that a true and correct copy of the foregoing Notice of

Appeal was served, via regular US. mail, postage prepaid, and email this 9th day of August,

2018, upon the following:

Michael J. Settineri

MacDonald W. Taylor

Vorys, Sater, Seymour and Pease, LLP
52 East Gay Street

P.O. Box 1008

Columbus, Ohio 432 I 6- 1008

misettineri@vogys.com
mwtaylor@voggs.com

A ?orneyr for Black For]: Wind Energy, LLC

Chad A. Endsley

Ohio Farm Bureau Federation
280 North High Street

PO. Box 18283

Columbus, Ohio 43218

ndsle ofb?or

Attorney for Intervenar Ohio Farm Bureau
Federation

John Jones

Assistant Attorney General
Public Utilities Section

l80 E. Broad Street, 6lh Floor
Columbus, Ohio 43215

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Attorney far OPSB

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CERTIFICATE OF FILING
Pursuant to S.Ct.Prae.R. and the undersigned hereby
certifies that a true and correct copy of the foregoing was ?led with the Doeketing Division of
the Public Utilities Commission and the Power Siting Board, 180 East Broad Street, Columbus,
Ohio 43215 pursuant to R.C. 4903.13 and 4906.12 fund Ohio Admin. Code 

4901-1-36. and 4906-2-33.

Jo Stock

 

THE OHIO POWER SITING BOARD

IN THE MATTER on ma APPLICATION or

BLACK Form WIND ENERGY, LLC

REGARDING CERTIFICATE or

Coma-mam AND CASE No. 
PUBLIC ISSUED IN CASE No. 10-2865-

BL-BGN.

ORDER ON CERTIFICATE
Entered into the Journal on December 7, 2017

I. SUMMARY

[1 1] The Ohio Power Siting Board grants the application filed by Black Fork Wind
Energy, LLC seeking a capacity increase to use the Vestas V110 turbine model with a 2.2
megawatt capacity and an extension of its certi?cate to January 23, 2020.

II. DISCUSSION
A. Procedural His'taty

[1i 2} All proceedings before the Ohio Power Siting Board (Board) are conducted 1
according to the provisions of RC. Chapter 4906 and Ohio Adm.Code Chapter 4906.

3] Pursuant to R.C. 4906.10, the Board?s authority applies to major utility facilities 4
and provides that such facilities must be certi?ed by the Board prior to the commencement
of construction. The Board promulgated rules as set forth in Ohio Adm.Code Chapter 4906
prescribing regulations regarding applications for wind-powered electric generation
facilities.

4] Black Fork Wind Energy, LLC (Black Fork or Applicant) is a person under RC. 
and is certificated to construct, Operate, and maintain a major utility facility, in
the form of a wind-powered electric generation facility.

5] On January 23, 2012, the Board granted the application of Black Fork for a
certi?cate to construct a wind-powered electric generation facility located in Crawford and

 

17-1148-BL-BGA -2-

Richland counties, Ohio. In re Black Fork Wind Energy", LLC, Case No. 10-2865-EL-BGN
(Certi?cate Case), Opinion, Order, and Certificate (Jan. 23, 2012). The Board granted Black
Fork?s application pursuant to a stipulation filed by Applicant, the Ohio Farm Bureau
Federation (OFBF), and the Board Staff (Staff), subject to 80 conditions set forth in the
stipulation. Black Fork was approved to construct a major utility facility in the form of a
wind-powered electric generation facility with up to 91 wind turbines with a combined
generation capacity of up to 200 megawatts (MW). The project area is located in Crawford
and Richland counties, Ohio.

[11? 6] On May 24, 2012, certain intervenors appealed the Board?s decision to the
Supreme Court of Ohio (Court). The Court af?rmed the Board?s decision on December 18,
2013.

7} On September 12, 2014, in Case No. 14-1591-ELBGA (14-1591), Black Fork,
filed an application to modify its certi?cate in order to utilize two additional turbine models,
the Vest-as V110 (2.0 MW) turbine and the GB 213-107 (2.3 MW) turbine for this project. The:
Board approved that application on August 27, 2015, over the objections of certain
intervening parties.

[1i 8} Additionally, on March 24, 2016, in'the Certi?cate Case the Board approved:
Black Fork's September 12, 2014 motion to extend the term of the certi?cate from January
23, 2017 to January 23, 2019. Certain intervening parties appealed the Board's approval of:
the motion to extend the term of the certificate to the Court. That appeal is currently
pending.

{11 9] On June 6, 2017, Black Fork filed an application in the above-captioned case
proposing an additional modification to the certi?cate approved in the Certi?cate Case and
modified in 14-1591. In its application, Black Fork seeks Board approval to use the 2.2 MW
version of the Vestas V110 wind turbine. Additionally, Applicant seeks to extend its
certificate first issued in the Certificate Case to January 23, 2020.

 

17-1148-ELBGA -3-

111 '10] Concurrent with the application, Black Fork ?led proof of service of the
application in this case. Notice of Black Fork?s application was published in the 13qu
Telegraph Forum, a newspaper of general circulation in Crawford County, and in the
Mans?eld News Journal, a newspaper of general circulation in Richland County, on June 9,
2017. Applicant filed proof of publication with the Board on June 12, 2017.

11] On November 13, 2017, Staff ?led a staff report of investigation evaluating the
application (Staff Report).

B. Motion for Waiver

12} Concurrent with the filing of the application, Black Fork filed a motion for a

waiver of Ohio Adm.Code which requires that a copy of the:
application be served upon "any property owner along the new route.? In support of its:

request, Black Fork asserts that this application merely involves an increase in capacity for

an already approved turbine model and that all significant features of the turbine remain 

the same including rotor diameter, hub height, and maximum operational sound output.

Further, Black Fork notes that this application does not involved a ?new" route as premised .

in the rule. Consequently, given the nature of the requested change and the time and
expense of a mass mailing, Black Fork seeks a waiver from the rule requirement and
proposes publishing newsPaper notice instead. Applicant asserts that a similar motion was
granted on April 25, 2016, in Case No. 16-725-EL-BGA and on September 9, 2016, in Case
No. 16-1717-EL-BGA. No memoranda contra Black Fork?s motion were filed.

on -

13] The Board determines that good cause has been presented by Black Fork to

grant the requested waiver of Ohio Adm.Code Accordingly, the

motion for waiver is granted.

C. Motions to Intewene

I11 14} On June 30, 2017, the OFBF ?led a motion to intervene in this proceeding. No
party filed memoranda contra the motion to intervene.

 

17-1148-EL-BGA .4.

[11 15} On July 7, 2017, a petition to intervene was filed on behalf of Gary J. Biglin,
Karel A. Davis, Brett A. Heftner, Alan Price, Catherine Price, Margaret and John
Warrington (Preperty Owners). Property Owners describe themselves as non-participating
residents and landOWners adjacent to or near the proposed project. Property Owners assert
that they have individually been granted intervenor status in either the Certi?cate Case, the
14-1591 case, or both ca ses. Property Owners submit that they meet all the requirements for
intervention in this proceeding in accordance with RC. 4906.08 and Ohio Adm.Code 4906- 



16] Black Pork filed a memorandum contra Property Owners' petition to intervene
on July 24, 2017. In its memorandum contra, Black Fork argues that two of the Property 2
Owners do not reside within the project area and that, if intervention is granted at all, the
Board should limit Property Owners' intervention to the turbine capacity issue. Property"
Owners filed a reply to the memorandum contra on July 31, 2017, essentially reasserting
arguments in favor of intervention and disputing the contentions of Black Fork.

17] In accordance with Ohio Adm.Code the Board finds that the
motions to intervene filed by OFBF and Property Owners (collectively, Intervenors) are
reasonable to the extent they address Black Fork?s request for a capacity increase to the 
Vestas V110 turbine model for this project. With this quali?cation, the Board finds that their
motions to intervene should be granted. The motions to intervene should be denied, to the I
extent the Intervenors request intervention for the purpose of addressing irrelevant matters

outside of this qualification and the identi?ed scope of this application.

1). Summary oprplication

18} In its application, Black Fork proposes a capacity increase to the already-
approved Vestas V110 turbine model. Black Fork explains that the manufacturer has made 
technological improvements to the Vestas V110 turbine model, allowing the capacity
increase from 2.0 MW to 2.2 MW. Applicant further states that the turbine model's
dimensions, including rotor diameter and hub height, remain the same. Black Fork af?rms

 

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that it will comply with all certificate conditions established in the Certi?cate Case and in 14-
1591. Black Fork submits that the 200 MW nameplate capacity for the project would not
change. Black Fork further states that all other information regarding the project previously
approved by the Board remains unchanged, including the locations of the turbines, collector
substation, access roads, and collection lines. (Application at 2-8.)

19} Concurrent with this application, Black Fork seeks a one-year extension of its
certi?cate from January 23, 2019 to January 23, 2020. Black Fork asserts that granting the
extension request would afford it the same three-year extension period that other wind farm
projects have received. Black Fork claims to have diligently pursued continued
development of this project, however, changes in the energy market in Ohio and the Court
appeals have impacted the Applicant's construction schedule. Applicant recognizes the
Board?s well?established practice of granting extensions by motion, however, given the
pending litigation over the prior eutmsion grant, Black Fork is requesting the certificate:
extension through this application. (Application at 5-7.) 

E. Summary of Staff Report

20] Staff reviewed the pending application and filed a Staff Report on November
13, 2017. The Staff Report reviews Black Park?s proposed modification to the certificate
issued in the Certi?cate Case, as modified by 14-1591. Staff reports that since the dimensions;
of the turbine model do not change, the potential for impacts such as shadow ?icker, blade
shear, ice throw, and noise will remain unchanged. Staff also notes that there is no proposal .
to revise any turbine or associated facility locations in the pending application. Therefore, .
Staff concludes that, considering the proposed change in capacity, the original conditions
for the certificate in the Certi?cate Case, asmodified by 14-1591 are adequate. (Staff Report
at 

21] In conclusion, Staff recommends that the Board approve the increase in
capacity for the Vestas V110 2.2 MW wind turbine provided the Board conditions approval

 

17-1148-ELBGA -6-

on Black Fork adhering to all conditions set forth in the Certi?cate Case Order, as
supplemented by 14-1591 (Staff Report at 7).

F. Board?s Conclusion

Hi 22] Initially, the Board notes that, in our Order in the Certi?cate Case, we
determined that the stipulation entered into between the stipulating parties satis?es the"
criteria set forth in R.C. Chapter 4906, promotes the public interest and necessity, and does
not violate any important regulatory principle or practice. Therefore, the Board approved
the stipulation in the Certi?cate Case, authorizing Black Fork to construct this project in
Crawford and Richland counties, Ohio.

23} As stated previously, the stipulation in the Certi?cate Case established 80-
conditions. Consistent with the Certi?cate Case, the acceptable turbine models for the project
would be the Vestas V100 (1.3 MW), GB XLE (1.6 MW), and the Siemens 
MW). Thereafter, in 14-1591, the Board approved an application that added the GB 2.3-107
(2.3 MW) and the Vestas V110 (2.0 MW) turbine models to the list of acceptable models to:
be used for this project.

[11 24} The application in the above-captioned proceeding would permit the increase 
in capacity for the Vestas V110 from 2.0 MW to 2.2 MW. The Board finds that Black Fork?
properly filed this case for our review and consideration, thereby providing for the
necessary notice and due process afforded to applications regarding certi?cates issued by
the Board. 

25} The Board finds that, as set forth in the application before us, and verified in I
the Staff Report, there is no material increase in any environmental impact of the facility and
no change in any portion of the facility's location, including the location of the individual"
turbines, from what was originally certificated in the Certi?cate Case, as modi?ed by 144591
(Staff Report at 7). Therefore, a hearing was not necessary to consider those factors.
Moreover, the increase in capacity of the Vestas V110 22 turbine model does not affect our?

 

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conclusion from the Certi?cate Case that the project satis?es the criteria set forth in RC.
Chapter 4906, promotes the public interest, and does not violate any important regulatory

principle or practice.

[if 26] As set forth in the application and veri?ed in the Staff Report, the application
merely seeks to permit the increase in capacity to include the Vestas V110 2.2 turbine model
in order to take advantage of technological improvements. Further, as set forth in the
application and veri?ed in the Staff report, the proposed turbine model's dimensions and
maximum sound power output remain virtually the same as the certificated models.
(Application at 2-8; Staff Report at 6.) Additionally, according to the Staff Report, the Vestas
V110 2. 2 MW turbine model includes the same safety features to address potential issues in
the event of high wind speeds, there will be no change to potential for impacts such as
shadow ?icker, blade shear, and me throw, and no change to noise impacts. Further, the
Staff Report finds that Black Fork?s adherence to the conditions set forth in the Certi?cate
Case Order, as supplemented by 14-1591, will adequately address safety considerations
Finally, no other aspects of the approved project are sought to be modified by the
application. (Application at 2; Staff Report at 3.) i 5

[1f 27} Upon our deliberation of the specific request proposed by Black Fork' in this:
application, as well as the recommendations set forth the Staff Report, the Board finds
that, based on the facts of this case, the application should be approved, subject to the 6
conditions set forth in the Certi?cate Case Order as supplemented in 14-1591, and that the a;
conditions set forth in the Certi?cate Case Order will adequately address the increase in
capacity for the proposed Vestas V110 2.2 turbine model. in making the determination in
this matter, the Board highlights that the current application merely seeks a capacity
increase for a previously approved turbine model without any changes in turbine locations 
or turbine dimensions. Accordingly, based upon the circumstances presented by this case,
the Board approves the application of Black Fork seeking approval of the increase in
capacity for the Vestas V110 2.2 turbine model for this project.

 

 

28] Regarding Black Fork?s request for a one-year extension of the certificate, the
Board notes that R.C. 4906.06 states that an application for a certi?cate shall be ?led not
more than five years prior to the planned date of commencement of construction The
statute continues, however, by stating that this five-year period may be waived by the Board
for good cause shown. Similarly, the Board?s rules in Ohio Adm. Code directs
an applicant for a certi?cate to provide a proposed schedule covering all major activities
and milestones for a electric generating facility project including construction of the facility
and placement of the facility in service. This requirement may be waived upon application
or motion of a party pursuant to Ohio Adm.Code As acknowledged by Black
Fork in its application, the Board's long-standing practice has been to consider extensions.
of certificates through motions in the certificate case rather than through an application 
process. Upon consideration of Black Fork?s request and being cognizant of similar
extensions granted to other wind facility projects, the Board finds that Black Pork has
established good cause for a one-year extension of the certificate in this matter.

G. Findings of Fact and Conclusions of Law
[1 29} Black Fork is a person under RC. 4906.01 (A).

[1i 30] Black Fork?s electric generation facility is a major utility facility under RC.


31] On June 6, 2017, Black Fork filed an application in this proceeding regarding
the certificate issued in the Certi?cate Case, as supplemented by 14-1591.

32) The June 6, 2017 application proposes an increase in capacity for the Vestas
V110 turbine model as suitable for this project.

Hi 33] On June 6, 2017, Black Fork filed proof of service of the application in this case.
Public notice of the proposed application was published in Crawford and Richland counties,
Ohio on June 9, 2017, and filed with the Board on June 12, 2017.

 

17-1148-EL-BGA -9-

34} Motions to intervene have been filed On behalf of the OFBF and Property
Owners in the area of the project.

[11 35] On November 13, 2017, Staff ?led a report evaluating the application.

HI 36] The proposed changes to the certi?cated facility do not result in a substantial
change in the location of the facility or any material increase in any social or envirorunental

inipact. Therefore, an evidentiary hearing is not necessary.

HI 3'7] Based on the record and in accordance with RC. Chapter 4906, the application .
regarding the certificate of environmental compatibility and public need for Black Fork's
electric generation facility, issued in the Certificate Case, as modi?ed by 14-1591, should be
approved, subject to the conditions set forth in the Certi?cate Case, and as supplemented by
14?1591 and this Order.

In. ORDER
38] It is, therefore,

39} ORDERED, That Black Fork's application be approved subject to the;
conditions set forth in the Order in the Certi?cate Case, as supplemented in 14-1591 and this
proceeding. It is, further,

4o] ORDERED, That the motion to intervene ?led by the ores and Property;
Owners be granted, to the extent set forth herein. It is, further, 

 

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41] ORDERED, That a copy of this Order on Certi?cate be served upon all parties
and interested persons of record.

THE OHIO POWER SITING BOARD



Asim Z. I-iaque, Chairman
Public EJtiJities Commission of Ohio

5 FM

James Ze get, Board Member
and Director of the Ohio
Development Services Agency Department of Natural Resources

Lance Himes, Board 55' Craig Butler, Boar?ember

and Director of the Ohio and Director of the Ohio
Department of Health Environmental Protedion Agency

 

 
 
   
  

 

   
 

Board Member Jeffrey I. Lechak, Board Member
:1 Director of the Ohio and Public Member

Department of Agriculture
- - 


Entered in the camel
mac 5 7 2017



Barcy F. McNeal
Secretary

,3

 

 

THE OHIO POWER BOARD

IN THE MATTER or me APPIJCATION 012'

BLACK FORK WIND ENERGY, LLC

REGARDING Commons or

ENVIRONMENTAL Coma-113nm AND CASE No. 
PUBLIC NEED ISSUED IN Case No. 10-2865-

I

SECOND ENTRY ON REHEARING
Entered in the Journal on June 21, 2018

I. SUWARY
Hill The Ohio Power Siting Board denies the application for rehearing filed by
intervenors Gary J. Biglin, Karel A. Davis, Brett A. Heffner, Alan Price, Catherine Price,
Margaret and John Wanington.

ll. PROCEDURAL HISTORY

[1i 2} Black Fork Wind Energy, LLC (Black Fork or Applicant) is a person as defined
in RC. 4906.01.

{11 3} RC. 4906.04 provides that no person shall construct a major utility facility in
the state without obtaining a certificate for the facility from the Ohio Power Siting Board

(Board).

{11 4} ac. provides that an application seeking to modify a certi?cate
shall be in such form and contain such information as the Board prescribes.

[1 5} On January 23, 2012, the Board granted the application of Black Fork for a
certi?cate to construct a wind-powered electric generation facility located in Crawford and
Richland counties, Ohio. In re Black Fork Wind Energy, LLC, Case No. (Black
Fork Certi?cate Case), Opinion, Order, and Certificate (Jan. 23, 2012). The Board granted
Black Pork? 5 application pursuant to a stipulation ?led by Applicant, the Ohio Farm Bureau

 

17-1148-ELBGA .2.

Federation (OFBF), and the Board Staff (Staff), subject to 80 conditions set forth in the
stipulation. Black Fork was approved to construct a major utility facility in the form of a
wind-powered electric generation facility with up to 91 wind turbines with a combined
generation capacity of up to 200 megawatts (MW). The project area is located in Crawford
and Richland counties, Ohio.

6] On May 24, 2012, certain intervenors appealed the Board's decision to the
Supreme Court of Ohio (Court). The Court af?rmed the Board?s decision on December 18,
2013.

(1 7J On September 12, 2014, in Case No. Black Fork filed an
application seeking to utilize two additional turbine models, the Vestas V110 (2.0 MW)
turbine and the GE 2.3-107 (2.3 MW) turbine for this project. The Board approved that
application on August 27, 2015, over the objections of certain intervening parties. See, In re
Application of Black Fork Wind Energy, LLC, Case No. (14-1591), Order on
Certificate (Aug. 27, 2015).

8] Additionally, on March 24, 2016, in the Black Fork Certi?cate Case the Board
approved Black Fork's September 12, 2014 motion to extend the tom of the certi?cate from
January 23, 2017 to January 23, 2019. Certain intervening parties appealed the Board?s
approval of the motion to extend the term of the certificate to the Court. That appeal is

currently pending.

{1i 9] On June 6, 2017, Black Fork filed an application in the above-captioned case
for approval to use the 2.2 MW version of the Vestas V110 wind turbine. Additionally,
Applicant seeks to extend its certi?cate first issued in the Black Fork Certi?cate Case to
January 23, 2020.

10} By Order on Certi?cate (Order) issued December' 7, 2017, the Board granted
the application filed by Black Fork seeking a capacity increase to use the Vestas \{110 turbine
model with a 2.2 megawatt capacity and an extension of its certificate to January 23, 2020.

 

 

Additionally, the December 7, 2017 Order granted intervention in this matter to Gary J.
Biglin, Karel A. Davis, Brett A. Heifner, Alan Price, Catherine Price, Margaret 
and John Warrington. 

{15 11] RC. 4906.12 provides, in pertinent part, that RC. 4903.10 shall apply to any
proceeding or order of the Board in the same manner as if the Board were the Public Utilities
Conunission of Ohio (Conunission).

{11 121 RC. 4903.10 permits any party who has entered an appearance in a
Commission proceeding to apply for rehearing with respect to any matters determined by
the Commission within 30 days after the entry of the order upon the journal of the
Commission. 

13] Further, Ohio AdmCode 4906-2-32 states that any party or any affected
person, firm, or corporation may file an application for rehearing, within 30 days after the
issuance of a Board order, in the manner and form and circumstances set forth in R.C.
4903.10.

(11 14] On December 27, 2017, intervenors Gary J. Biglin, Karel A. Davis, Brett A.
Hetfner, Alan Price, Catherine Price, Margaret and John Warrington filed an
application for rehearing of the Board's Order.

15] On January 8, 2018, Black Fork filed a memorandum contra intervenors?
application for rehearing.

16} On January 24, 2018, the administrative law judge (ALI) found-pursuant to
Ohio Adm.Code that to the extent intervenors? application for rehearing has
been filed consistent with the requirements of RC. 4903.10 and Ohio Adm.Code 4906-24-32,
which is a matter for the Board?s determination, rehearing should be granted for the limited
purpose of affording the Board additional time to consider the issues raised in intervenors?
application for rehearing.

 

 .4.

ill. DISCUSSION

17] in their first assignment of error, intervenors submit that the Board's
December 7, 2017 Order is unreasonable and unlawful to the extent it impermissibiy
restricts the scope of their intervention particularly as it precludes intervenors from
addressing setback requirements and the extension of the term of the certi?cate. Citing to
Moore 0. City of Middletown, 133 Ohio St.3d 55, 63-66, 2012-Ohio-3897 at 1311 33-43, intervenors
assert a protectable interest in the proper application of the pertinent setback requirements.
. Moreover, as adjacent and nearby property owners, intervenors also claim an interest in
ensuring that the time within which Black Fork must commence construction of the project

is reasonable so as to not unduly burden their property for an extended period of time.

[11 18} In its memorandum contra, Black Fork asserts that, given the intervenors'
stated interests, the Board properly limited intervenors? scope of intervention. Black Fork
submits that the burden to establish good cause to intervene rested with the intervenors but
that the intervenors failed to explain how a capacity increase to an already-approved turbine
model or the certificate extension would impact them other than stating that they were
trying to avoid additional adverse impacts on their land, residences, roads, communities,
and lives. Black Pork claims that, through their intervention, intervenors are attempting to
improperly expand the scope of this proceeding into matters previously determined by the
Board. The Board has already decided this issue in Applicant?s favor in the past according
to Black Fork. See, Black Fork Mud. Order on Certificate (Aug. 27, 2015); In re Application of
Greenwich Windpark, LLC, Case No. 15-1921-ELBGA (Greenwich), Second Entry on
Rehearing (Aug. 17, 2017). Black Pork asserts that re~litigation of already-decided issues
also implicates the doctrine of collateral estoppei and should not be allowed here.

Hi 19} Intervenors' first assignment of error is denied. As noted in the Board?s
December 7, 2017 Order, the only change to the proposed facility was a capacity increase to
the already-approved Vestas V110 turbine model. No dimensions of the Vestas V110
turbine model changed from what was previously-approved and all other physical aspects

 

17-1148-EL-BGA 5

of the project remain the same including approved turbine sites, the location of the collector
substation, access roads, and collection lines. Intervenors reliance on Moore is unavailing as
that case involved zoning matters and arguments concerning constitutional issues. In the
present case, there (is no issue concerning zoning and the Board does not resolve
constitutional issues. Further, as the Board has previously determined, a desire to re-litigate
legal issues that the Board has already decided in a prior certification proceeding in the past
is not a suf?cient interest that allows for intervention and further consideration on those
issues in the pending proceeding. See, Black Pork Wind, Order on Certi?cate (Aug. 27, 2015);
Greenwich, Second Ruby on Rehearing (Aug. 17, 2017). Additionally, the re-litigation of
already-decided issues also implicates the, purposes underlying the doctrine of collateral
estoppel and should not be entertained in this matter. Under the circumstances presented,
the Board acted reasonably in limiting the scope of intervention. Rehearing on this
assignment of error is denied.

20] lntervenors' second assigrunent of error alleges that the Board's December 
2017 Order is unreasonable and unlawful to the extent it precluded intervenors from
addressing the issues of setback requirements. applicable to an application for a capacity
increase pursuant to R.C. 4906.20 and 4906.201. intervenors assert that, despite the fact that
the applicable setback was their primary contention in their petition to intervene, the Board
completely ignored this issue in the December 7, 2017 Order. Additionally, intervenors
assert that the current versions of RC. 4906.20 and 4906.201 (as amended in 
433, effective September 15, 2014) compel the Board to subject any amendment to an existing
certi?cate to the latest setback requirements 1,125 feet from the property line of the
nearest adjacent property). Since September 15, 2014, intervenors claim the Board has
permitted Black Fork to amend its certificate twice by adding two new turbine models for
use on this wind term project and permitting the extension of the certificate. Intervenors
claim that the Board must, therefore, reconsider its December 7, 2017 Order and compel
adherence to the now applicable setbacks.

 

17-1143-EL-BGA -6-

21] As an initial matter, Black Fork argues that intervenors? second assignment of
error is outside the scope of their intervention and is not, therefore, a permissible issue for
them to raise on rehearing. Moreover, Black 'Fork claims that there are significant
constitutional issues involved in applying the 483 setback standards to Black
Fork?s certificate. Black Fork asserts that this is the third time the intervenors have raised
this setback argument before the Board and since the Board has twice rejected this argument
the Board need not consider it again. Finally, Black Fork notes that the Board has repeatedly
taken the position that RC. 4906.20 and 4906.201 are silent as to the definition of an
?amendment to an existing" certificate that would trigger the enhanced setbacks and has -
used its discretion and expertise to determine what quali?es as an amendment. See, In re
Black Pork, Case No 10-2865-EUBGN, Entry on Rehearing (Feb. 2, 2017); Greenwch, Second
Entry on Rehearing (Aug. '17, 2017).

{11 22} Intervenors' second assignment of error is denied. The Board properly
granted intervenors limited intervention in this matter to address the sole issue of the
capacity increase to an already-approved Vestas V110 turbine model. As noted in
Greenwidz, supra, R.C. 4906.20 and 4906.201 are silent as to the de?nition of an ?amendment
to an existing certificate? that triggers enhanced setbacks. Therefore, the Board has?used its
discretion and expertise to determine what qualifies, just as; it must create parameters
around the concepts of ?change? and "alteration,? also found in RC. 4906.20. In this case,
the Board reasonably determined that: a mere capacity increase to an already-approved
turbine model is adequately covered by the existing conditions of the certificate in the Black
Fork Csrti?uats Case and does not affect our conclusion that the project satis?es the criteria
set forth in R.C. Chapter 4906. Thus, application of the Am.Sub.l-I.B. 483 setbacks is not

warranted.

MI 23] Not every proposed change to a major utility facility requires an amendment
to an existing certi?cate regardless of how the application is captioned. Rather, the Board
determines from the substance of the pleading whether the change(s) being proposed

 

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necessitate ?[a]ny amendment [being] made to an existing cerdficate? by the Board.1 The
Board begins its review by looking at whether the proposal introduces new lmpact(s) that
cannot be adequately addressed by the conditions of the existing certificate to satisfy the
criteria of RC. If a prOposal introduces a new impact that the Board determines
does not satisfy the statutory criteria without the Board approving a change in the original
certificate condition(s), then the proposal is an ?amendment" that requires the new setbacks
apply under 483. However, where the existing certificate conditions are
adequate to address/ mitigate any impacts of the proposed change, then the Board can
approve the change without amending the existing certificate. The Board found exactly
such a situation in this case. The change in capacity does not alter any existing conditions
and, therefore, the Board could approve the change without amending the existing
certificate. It did so and the intervenors second assignment of error is, therefore, denied.

(11 24] in their final assignment of error, intervenors assert that the order is
unreasonable and unlawful as Black Fork failed to show good cause for a one-year extension
of the certi?cate. While acknowledging that the five-year commencement of construction
time frame set forth in R.C. may be waived for good cause showa, intervenors
note that the Board has indicated that there are important policy considerations to factor
into doing so. See, In re Application of Lima Energy Case Nos. and 04?
(Lima Energy), Entry (July 30, 2012). lntervenors submit that the passage of
nearly six years has greatly affected the assumptions underlying the Board's 2012 issuance
of the certificate and, thus, the Board's failure to address this issue mandates rehearing.

[1 25] Blade Fork responds that, like the setback issue above, arguments surrounding
the extension of the certificate are outside the allowable sc0pe of rehearing and the Board

 

1 In a line of analogous utility cases invoking the Public Utilities Commission of Ohio (Commission),
the Supreme Court of Ohio has stated that the Commission has broad discretion in the conduct of its
proceedings. See, Weiss 9. Pub. Ulii. Comm, 90 Ohio St.3d 15, 734 775 (2000); Du?'v. Pub. Util.
Comm, 56 Ohio St2d 367, 379, 384 264 (1978); Toledo Coalition for Sqfe Energy Pub. U117. Comma
69 Ohio St.2d 559, 560, 433 212, 214 (1987).

 

17-11484EL-BGA -8-

shoald not consider it. Nevertheless, Black Fork posits, good cause exists for the certificate
extension In support, Black Fork notes that it has diligently pursued continued
development of the project. Moreover, Black Pork asserts that it faces continued litigation
from intervenors with a new appeal pending at the Court (Case No. 2017-0412) on the
Board's previous extension of the certificate and seeking imposition of the 483
setbacks. As a result, Black Fork spines thatgood cause exists for the certificate extension
and, therefore, intervenors third assignment of error should be denied.

26] lntervenors? third assignment of error is denied. lntervenors acknowledge
that the ?ve-year time frame in order to commence construction of a project set forth in RC.
may be waived for good Cause shown. Although the Board?s December 7, 2017
Order did not list specifically the arguments Black Fork made in support of its request that
the Board found to justify the extension, it is clear from the decision that the Board
considered the entirety of Black Pork?s request and also that similar extensions have been
granted to other wind facility projects. In totality, the Board found such circumstances
established good cause for a one-year extension of the certificate. Moreover, the in tervenors
reliance on the Lima Energy decision does not warrant a different conclusion. In fact, after
considering all of the arguments made in the Lima Energy proceeding, the Board granted the .
requested extension. In ruling on the one?year request for extension in the December 7, 2017
Order, the Board found persuasive the steps taken by Black Pork that support a finding that
the Applicant has pursued a continued development of the wind farm and that any delays
are due, in part, to continued litigation concerning this project Finally, the six-year passage
of time since issuance of the original certificate does not require a di?erent outcome. Since
issuance of the certi?cate on January 23, 2012, Black Fork pursued approval to utilize two
additional turbine models in 14-1591. The Board had occasion in ruling on the request in
14-1591 on August 27,2015, to more recently consider whether the 80 conditions adapted in
the Black Fork Certi?cation Case still satisfies the criteria set forth in R.C. Chapter 4906,
promotes the public interest, and does not violate any important regulatory principle or
practice. Rehearing on this assignment of error is, therefore, denied.

 

17-1148-ELBGA .9.

1V. ORDER
27; It is, therefore,

[17 28} ORDERED, That the application for rehearing ?led on December 27, 2017, be
denied. ltis, further,

29) ORDERED, That a copy of this Second Entry on Rehearing be served upon all
interested persons of record in this matter.

THE OHIO POWER SITING BOARD



Asim Z. Haque, Chairman
Public Utilities Commission of Ohio

WJW {in

James Zehrin? Board Member

 

   

David man, Board ember

 

 

 

 

and Director of the Chi and Director of the Ohio
Development Services Agency Department of Natural Resources
4g ?i??dg %4 In
Lance Himes, Board e?rri Craig Butler, Boar mber
and Director of the Ohio and Director of the Ohio
Department of Health Environmental Protection Agency
Gregory Murphy, Board Member
and Director of the Ohio and Public Member
Department of Agriculture
JRJ/mef


Darcy F. McN?al

Secretary