In re Application of Champaign Wind, L.L.C. (Slip Opinion)
58 N.E.3d 1142
Ohio
2016

Background

  • Champaign Wind sought a certificate to build a 52–56 turbine wind farm (Buckeye Wind II) in Champaign County; the Power Siting Board granted a certificate with 72 conditions and reduced the project to 52 turbines.
  • Neighboring landowners (Union Neighbors United and individuals) and local governmental entities (Champaign County and three townships) intervened and appealed, challenging evidentiary rulings, discovery rulings, and whether the project met R.C. 4906.10(A) criteria (minimum adverse environmental impact and public interest).
  • Central factual disputes concerned: blade throw risk and appropriate setbacks; turbine noise standards and measuring methodology (Leq vs. L90); and whether certain third-party subpoenas and hearsay evidence should have been admitted.
  • The board limited third-party discovery (quashed broad subpoenas), excluded the Caithness database as hearsay, adopted regulatory-minimum setbacks then in effect (541 ft. from property line; 919 ft. from residence), and set a nighttime noise limit of 44 dBA measured at residences.
  • The court applied the R.C. 4903.13/4906.12 standard (deferential review: reverse only if board order is unlawful or unreasonable or against manifest weight) and affirmed the board, finding appellants failed to show prejudicial error.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Scope of third-party subpoenas and discovery about blade-throw incidents Neighbors: subpoenas to EDP, Gamesa, GE were relevant to safety and necessary to assess blade-throw risk (including Timber Road incident) Board/Champaign Wind: requests were overbroad, unduly burdensome, and irrelevant to turbines still under consideration Quashing broad subpoenas was within board discretion; appellants failed to show prejudice because Timber Road evidence was admitted in other ways and no narrower subpoena was pursued
Admissibility of blade-failure evidence (Caithness database) and cross-examination about Timber Road investigation Neighbors: exclusion of Caithness was arbitrary and a double standard; they should have been allowed to cross-examine staff investigator about Timber Road Board: Caithness was unreliable hearsay; witness testimony admitted was based on personal experience, not the database; ALJ limited irrelevant cross-exam Exclusion of the Caithness database and limiting cross-exam were not reversible error; no showing that rulings prejudiced outcome
Setbacks and blade-throw safety Neighbors/county: minimum regulatory setbacks were insufficient given blade-throw distances (advocate much larger setbacks, up to ~1,640 ft.); manufacturer safety-clearance guidance requires larger radii Board/Champaign Wind: evidence showed blade throw is rare; staff and applicant mitigation and conditions reduce risk; manuals describe temporary safety clearances, not permanent setbacks; regulatory minimums satisfied Board’s adoption of then-applicable regulatory minimum setbacks was supported by record and not against manifest weight of the evidence
Noise standard, measurement method, and process for complaints / reopening for low-frequency study Neighbors: board erred in using Leq (inflates rural background) rather than L90, set too high a nighttime limit (44 dBA vs. 35 dBA) and improperly measured at residences; new Wisconsin low-frequency study should have been admitted Board/Champaign Wind: no statutory metric mandated; board reasonably relied on expert Hessler and precedent using Leq; complaint-resolution process and conditions address issues Court deferred to board expertise on methodology and measurement location; found mixed evidence on health effects and no prejudice from refusing to reopen record; affirmed noise limit and procedures

Key Cases Cited

  • In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 2012-Ohio-878, 966 N.E.2d 869 (Ohio 2012) (prior wind-farm siting decision and precedent for setbacks)
  • Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885 (agency-order review standard and deference)
  • Monongahela Power Co. v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921 (manifest-weight review and deference to agency expertise)
  • Elyria Foundry Co. v. Pub. Util. Comm., 114 Ohio St.3d 305, 2007-Ohio-4164, 871 N.E.2d 1176 (prejudice requirement for reversal of evidentiary rulings)
  • A.K. Steel Corp. v. Pub. Util. Comm., 95 Ohio St.3d 81, 2002 (burden to show prejudice from agency error)
  • Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466, 1997 (scope of appellate review of agency legal questions)
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