Property Owners Question OPSB Rule On Wind Farms; Board Says Concerns Will Be Addressed

Statehouse News Service

Attorneys for property owner groups argued Monday that “significant deficiencies” exist in a rule proposed by the Ohio Power Siting Board pertaining to wind turbine setbacks. But in the end the Joint Committee on Agency Rule Review did not move to invalidate the rule, which will now move forward to implementation.

The rule consolidates and revises existing rules in line with changes made in a previous MBR measure (HB483, 130th General Assembly). That bill extended wind farm setback requirements and was opposed by environmental groups.

The rule would require applications to construct electric generation facilities to include descriptions of: expected noise levels, blade shear or ice throw, and more. The information would also be required to include an outline of measures to prevent those occurrences. Environmental attorney Chris Walker, on behalf of Union Neighbors United, said the rule violates the intent of the previous bill.

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

Mr. Walker argued the rule requires “a laundry list of information” from applicants but contains no specific regulatory standards to protect residents from noise levels, blade shear, or ice throw. Rep. Dan Ramos (D-Lorain) questioned that logic.

“It seems as though you’re arguing for a standard of the absolute furthest a catastrophic failure could affect a power facility and we don’t do that for anything else,” Rep. Ramos said, adding that other generating facilities, such as nuclear plants, aren’t entirely isolated from surrounding communities. “The General Assembly decided it was a certain number of feet, not based on the potential throwing effect of ice,” Mr. Ramos said. “Do you believe this rule negates the General Assembly’s intent on the specific number of feet a setback requires? Because I don’t see that it does.”

“I believe this rule negates the General Assembly’s intent on blade throw and ice throw because it’s silent on the issue other than to refer to the General Assembly’s minimum setbacks,” Mr. Walker replied. “The Power Siting Board is professing this issue is beyond their purview and I respectfully submit that it is not.”

But Rep. Ramos questioned how the rule is silent on the issue when it requires companies to submit steps taken to prevent blade shear and ice throw.

“Because there are no enforcement standards in the rule with regard to protection of public health,” Mr. Walker said. “An applicant for example can submit information saying we think a projectile can be thrown X number of feet. But the Power Siting Board should have standards that apply across the board and not just be reducing this to ad hoc determinations in each case.”

Responding to Chairman Sen Joe Uecker (R-Loveland), Mr. Walker acknowledged that language requiring the “protection of public health” does not appear in the statute.

OPSB Legal Director Director Angela Hawkins said the board is working to address those concerns through subsequent rulemaking. She said the OPSB delayed submitting the rule pending HB 483’s passage. That’s when stakeholders first raised concerns about the lack of regulation in the rule, she said.

“Later in the rulemaking process similar comments were filed with us and what the board said was we need to make sure we have an open and fair rulemaking (process),” she said. “So we are proceeding with that.

“We hope to move forward with those rules as quickly as possible. We have heard the concerns of the stakeholders and would like to move forward with addressing them.”

McNees Wallace and Nurick attorney Sam Randazzo submitted written testimony on behalf of Greenwich Neighbors United. He argued the OPSB its statutory authority in crafting the rule, which he argued conflicts with both the law and lawmakers’ intent.

He argued, for example, that the rule exempts a wind farm from minimum setback if a waiver is signed by all “owners of property adjacent to the turbine.” But, he said, the General Assembly intended such waivers to be signed by all owners of property adjacent to the entire wind farm property. He quoted a 2014 letter from Sen. Bill Seitz (R-Cincinnati) to the Public Utilities Commission of Ohio in which the senator advocated for the latter approach, saying that a waiver signed by all property owners adjacent to the wind farm property “is the only (view) that can be reasonably and lawfully adopted by the board based on the plain meaning of the statutory language.”

“The letter indicates that Sen. Seitz well knows that narrowing the population of land owners from whom a wind farm developer must secure waivers of the minimum setback requirements has the potential for depriving non-participating but significantly affected adjoining property owners of their property rights,” Mr. Randazzo wrote.

He further contended the OPSB “and others will use JCARR’s unwillingness to recommend invalidation of this proposed rule to assist wind farm developers in evading the statutory minimum setback requirements.”

Columbus Attorney John Stock of Benesch Attorneys at Law, representing the Logan County group Fight the Wind, submitted written testimony seconding arguments from Messrs. Walker and Randazzo.