*1 449 Buckeye Application L.L.C., Wind, a In re for Certificate of Champaign Facilities Electric Generation Wind-Powered Construct Siting Neighbors Appellants; Ohio; al., County, et Power United Union Appellees. al., et Board Application Wind, L.L.C., re
[Cite as In
449,
After Board be affirmed because the Siting of the Power should hold order regulations. pertinent acted with all statutes accordance Background I. 221, No. Assembly legislation, 2007 The General enacted Am.Sub.S.B.
{¶2} 31, 2008, electricity July require provide portion utilities to a their effective R.C. and 4928.65. energy from alternative sources 2025. See 4928.64 supply resource.” energy energy a “renewable The term “alternative resource” includes 4928.64(A)(1). listed within the definition of “renewable energy Wind R.C. 4928.01(A)(35). 4906.03, has been resource.” R.C. Under R.C. the board energy construction, granted authority operation, exclusive issue certificates for major utility facilities. maintenance Wind, (“Buckeye”), developed plan private developer, Buckeye A L.L.C. 9,000 County, acres in Champaign 70 wind over approximately
to build turbines land, wind, Ohio, open access Buckeye perceived where a favorable blend first farms Ohio. is one of the wind power grid. to the electric This qualify- generation capacity megawatts, farm’s exceeded expected The wind 4906.01(B)(1) facility” required “major utility as a it under R.C. ing R.C. 4906.03. board. approval In filed with April 1,500-page application A of environmental need. compatibility
certificate See 4906.04. *2 landowners, (“UNU”), group neighboring of Union United Neighbors Robert and McConnell, (collectively, Diane and Julia “the neighbors”), opposed Johnson the entities, County Several other and application. including Champaign several townships (collectively, county”), local “the also intervened. The were concerned about noise and turbines’ neighbors proposed the
setbacks of 914 from and 541 property feet homes feet from lines. Wind turbines feet, by Buckeye as those can tall proposed such stand as as 328 with a at blade highest the point being high. neighbors 492 feet The raised of also issues flicker,” a “shadow potentially annoying phenomenon caused the of swinging sun, turbine blades the ground between and the and the of possibility blade turbines, detachment. Unlike landowner-lessors who neighbors host the received from compensation they Buckeye, also noted the effect the proposed' facility on property rejected could have values. The of board most the neighbors’ requests approved construction of most of the turbines. county did The oppose siting sought of turbines but financial
protection bond through requirements that would ensure adequate money (1) (2) (or was repair any available to damaged roads remove “decommission”) the turbines if and when they became inoperable. The board $5,000 agreed to require year bond for the first of operation. county The was dissatisfied with the bond fact amount well as the Champaign County Engineer did not have final say on amount. county appealed, as did the neighbors. on
{¶ intervened 7} law, behalf the board. The county raised three propositions neighbors law, raised ten propositions and the Ohio Farm Bureau filed amicus brief urging affirmance. Legal Analysis
II. A. The Board Appropriate Hearings Conducted Public In law, their ninth proposition neighbors argue board deprived the statutory “the to call right and examine witnesses hearing.” Although neighbors argue violated R.C. 4906.07(A) by failing hold a full hearing considering testimony from the opponents acting Buckeye’s before on application construct wind turbines Champaign County, the record belies conclusion. First, appellants were active participants throughout the administrative
9} {¶ process. neighbors and the Ohio Farm Bureau Federation were allowed 31, intervene on July shortly after filed application had its initial on 24, Goshen, Urbana, April Rush, Salem, 2009. The townships of and Wayne, the Club, of Commissioners of Country the Board Urbana, the Urbana city of Shawnee Company, Piqua Telephone Champaign County, Champaign the board. proceedings in the before also to intervene permitted Tribe were had an general public, well Second, intervening parties, as these 10, on June hearing informational was held heard. A public opportunity for a apply of its intention to 2008, shortly Buckeye notified the board after staff conducted its was filed and After the construction certificate. held, in accordance with Ohio Adm.Code hearing was investigation, a local 4906-7-01(A), 28, 2009, adjudicatory Lewisburg, North Ohio. on October 9, testimony and initial 27, on November began on October was continued hearing 20, 2009; testimony was on December presented rebuttal concluded November 1 and discovery hearing, partici- before the Third, the intervenors conducted *3 of written presentation motions to ensure the pretrial hearings, and filed
pated witnesses, the board staff called and called testimony of witnesses. public at the local 8, 17. testified presented Forty-six people and intervenors hearing. evidence, argu- consideration of Fourth, summary of the the board’s of the of requirements and careful recitation against every point,
ments certificate, order, 4906.10(A) which clearly opinion, in its presented R.C. 22, thorough order and shows that is 101-page was entered on March view, including positions all of the intervenors’ points considered the board issue. every Decisionmaking Its Not Improperly Delegate
B. The Board Did
Staff
Inc., 125 Ohio
Sys.,
in In
Am. Transm.
Application
We stated
re
of
¶
333,
One of Code shall under section 4906.10 the Revised grant certificates than itself.” officer, employee, body or other by any exercised 4906.02(C). its decisionmak- argue improperly delegated that the board Appellants (1) approve new sites for authority allows staff members to ing because order (2) design siting turbines, accept regarding the plans review and three lines, clearing, services, electric-collection tree transportation routing, emergency (3) resolution, and complaint potential resolve the maximum distance that a (4) thrown, specific detached turbine blade could be determine the model of deferred, wind turbine to be used. The issues characterized improperly however, simply require additional submissions will make to staff preconstruction before the conference. preconstruction The order explains purpose conference is (1) compliance demonstrate with the requirements other state and federal (2)
agencies, board, compliance demonstrate with the certificate issued (3) complaint show that procedures address concerns. Pub. Util. 08-666-EL-BGN, (2010). Comm. No. at 81-82 Nothing suggests order that actions would occur secretly specifically acknowledges duty —the rejects under R.C. 4906.07 and claim expressly neighbors’ that the public would input: be foreclosed from providing
Any party to a certificate opportunity, has UNU done matter, in this to oppose staffs recommended conditions or to propose Furthermore, that, additional conditions. the Board notes in accordance 4906.07, Code, with Section Revised the Board required hold a hearing in the same manner as on application, where the amendment any involves any material increase in environmental certificate impact change substantial the location all or a portion facility. added.)
(Emphasis Id. 82. Thus it appears parties interested have *4 the right to file before the if Buckeye board violates the terms the certificate. Contrary arguments to by that the challenged appellants issues must
{¶ be 16} finally 4906.10(A) resolved by issued, the board before a may certificate R.C. a allows certificate to be upon issued such conditions as board considers appropriate. dynamic The statutes authorize a process that does not end with the issuance of a construction certificate. The General vested Assembly board authority with to allow staff Buckeye’s its to monitor with compliance set, conditions that the board has upon conditions which the neighbors already had the chance to be heard. certificate, The board Buckeye’s has limited adding condi- separate
{¶ 17} tions. The board statutory requirements followed in establishing each one. The order facility that recognizes proper subject is siting to modification as the process proposals are tested and matched to defined conditions. continues— Simply because certain matters are left for further and possible public review they comment does not improperly delegated mean have been to Any staff. “in same manner subject hearing is modification to the certificate material by is neighbors’ right safeguarded The be heard application.” Furthermore, by to abide the conditions as Buckeye must continue 4906.07. in the by set certificate. presently grant delegate responsibility its improperly The did not board of certain further out fleshing when it allowed for provisional certificate
deny certificate. conditions and Acceptance Review Staff field compliance in the ensuring The staff is responsible board’s requires 8 of the order actions when needed. Condition
initiating enforcement final, descriptions that variety to submit a contain detailed reports from an plan. opportunity were foreclosed construction additional requesting hearing. provision these matters explore already the conditions ordered compliance to ensure designed submissions by the board. over Blade Shear
2. Concerns that order, In its a rotor blade possibility the board considered turbine, a known as shear.” There is or be thrown from the situation “blade drop previous in the of blade shear involved blade testimony record instances 33, which by adopted Condition Buckeye. model not considered conference, Buckeye “Prior to shall staff with preconstruction provide states: maximum for a shear event from three potential both the distance blade models and the formula used to calculate the turbine under consideration distance.” has ever evidence that member been presented
injured shear, braking now includes two by technology independent blade over automatically that will down turbine at wind systems speeds shut threshold, if stop significant and that turbines will vibrations or manufacturer’s found monitoring systems. The board rotor-blade stress is sensed setbacks, currently configured, Buckeye “sufficiently demonstrated technology, sufficient combined with advances in wind turbine when any risk shear.” Pub. Util. Comm. No. 08-666- protect residents from of blade EL-DGN, injury further mitigates *5 42-43. 33 risk even Condition support a that formula Buckeye provide staffs recommendation adopting specifically its found that this condition consultant’s calculations. The board measures, did to the Given the board not neighbors’ concerns. these responded unlawfully addressing in concerns. unreasonably act the blade-shear
3. Turbine Relocation pertain for Conditions 45 and 46 to turbines and which the if proposed provides Buckeye locations were not The order approved. turbines, modify chooses to the location of these additional information must be construction, submitted the staff for approval review before order, “shall with all comply” including conditions Condition 40 setbacks. provides that the location of turbine 37 is “an upon in-depth conditioned vertical analysis” Fresnel-Zone to determine whether relocation of the turbine is neces- sary because of microwave interference. By providing clear directions stating where turbines not be placed guidelines setting forth requirements sites, permissible unreasonably or unlawfully give did the staff general to approve discretion new sites. Choice Turbine Model
J. 49 provides: Condition construction, At 60 days prior least shall file a letter with the Board identifies which of the three turbine models listed in the been selected. If a Buckeye selects turbine model other than one of the application, three models listed in addition to the letter, Buckeye shall also: file copies safety manual for the turbine information; model selected and manufacturer contact provide assur- ances that no negative additional would impacts be introduced model selected. No issue arise unless a Buckeye selects turbine model other than
the models application. However, listed the conditions of the certificate met, must be there must assurances the turbines will have no negative impacts. The conditions under which the turbines have been (the evaluated upon were based a worst-case scenario model with the greatest potential evaluated), was impact according to staff member Stuart If Siegfried. different than model were selected the one proposed, any potential impact necessarily would be This hardly lessened. blank for Buckeye. check Furthermore, any choice of by Buckeye turbine model will be a matter record. As board created within the Public Utilities Commission of Ohio, 4906.02, all facts and information the board’s possession “shall be public, records, files, accounts, reports, books, and all papers, and memorandums every its possession nature shall be open inspection by parties interested or their attorneys.” R.C. 4905.07.
455
Affirmed
Be
Should
III. The Board’s Order
Statutory Requirements
Order Followed
A. The Board’s
farms
of wind
construction
jurisdiction over
has exclusive
The board
Pursuant
to R.C.
See R.C.
4906.13.
by Buckeye.
proposed
the one
such as
power-siting
review to
of
the same standard
4906.12,
apply
court must
this
Utilities Commission.
of the Public
it
to orders
applies
determinations
231, 238, 361 N.E.2d
Comm., 49
St.2d
Siting
v. Power
Ohio
Twp.
Accord Chester
4906.12
to R.C.
(1977).
pursuant
proceedings
to board
applies
“R.C. 4903.13
436
vacated,
by this court
reversed,
or modified
that an order ‘shall be
and provides
record,
finds the order
the court
when,
of the
consideration
only
upon
”
Inc., 125
Sys.,
Transm.
Am.
Application
In re
unlawful or unreasonable.’
of
¶ 17,
Constellation
427,
333,
nance of a 4906.10(A).1 upon issuance of certificate And if the board conditions R.C. 4906.10states: denying (A) upon granting or the record either power siting render a decision board shall conditions, terms, filed, of the granting upon or modifications it such utility facility construction, major as the board considers operation, of the or maintenance facility being compliance upon with appropriate. The certificate shall be conditioned 3704., 3734., 1501.33,1501.34, Chapters adopted and 4561.32 and rules under sections standards expire operation shall two period initial under certificate Revised Code. The and 6111. of the by facility. During period generated years the date on which electric is first after monitoring powers subject of the facility operation, the shall be to the enforcement initial 3704.,3734., protection Chapters and 6111. of the Revised Code under director of environmental major utility facility chapters. constructed emergency provisions those If a under compliance operate in with all unable to and conditions of its certificate is accordance with the terms facility laws, rules, pollution, pertaining air requirements applicable of state and standards operating permit protection under may for a conditional apply to the director of environmental (G) adopted rules thereunder. of the Revised Code and the of section 3704.03 division operating permit facility compliance is not major utility with a conditional operation aof major utility period operation of a expiration of initial After the of the violation of its certificate. agency jurisdiction protection and shall facility environmental facility, under the shall be laws, rules, pollution, pertaining pollution, water and solid to air comply all and standards disposal. hazardous waste major construction, operation, and maintenance of a grant a certificate for the The board shall not board, all of it finds and determines facility, unless utility or as modified either following: facility, of the location add condition. R.C. modification 4906.10(B).2 matter, In the board issued a 101-page detailed order on March 2010, construction, for the granting operation, certificate maintenance, decommissioning proposed wind-powered electric gener- facility separate ation as modified conditions. *7 8, imposition maintain that the of six board’s conditions — 40, 45, 46, a and conclusion that the board asked to supports the staff 49— decisions, requires Buckeye make its not enforce them. Condition 8 to submit acceptance. for staff
plans requires Buckeye review and Condition 33 to provide a of for a potential calculation “the maximum distance blade shear event.” 40, 45, Conditions and 46 relate to the three And approval of turbine sites. condition 49 requires specific identification of the turbine model to used. If Buckeye further information the provides board’s staff that would certificate, an the require required hearing amendment of the board is to hold a the amendment: (1) facility facility gas basis of the need for the if the an electric is transmission line or or line; gas natural transmission (2) probable impact; The nature of the environmental (3) facility represents impact, That the the considering minimum adverse environmental the state technology alternatives, of available nature and and the economics of the various other and considerations; pertinent (4) generating facility, facility In the case of an electric transmission line or that the is consistent regional plans expansion systems grid serving with for of the electric electric of the state utility systems facility and interconnected and that system the will the interests serve of electric economy reliability; and (5) 3704., facility comply Chapters 3734., That the will and of the all Revised Code and 1501.33, adopted chapters 1501.34, and rules standards under those and under sections and 4561.32 determining facility comply of the Revised Code. In whether the with all rules and standards adopted Code, under section 4561.32 of Revised shall consult of board with the office planning programs department aviation of the transportation division of multi-modal of of section under 4561.341of the Revised Code. (6) facility public interest, convenience, necessity; That the will serve the (7) (6) (A)(1) provisions In addition to the contained in divisions of this rules section and divisions, adopted impact viability agricultural any under its those what will be on land of existing agricultural in an Chapter land district established under 929. of the is Revised Code that major utility within proposed facility. adopted located the site and site of the alternative Rules (A)(7) impact creation, require evaluate compilation, under division this section shall not submission, information, production any document, pertaining or data other to land not located within site and alternative site. (8) facility incorporates That practices maximum feasible water conservation as determined board, considering technology available nature and economics of the various alternatives. 4906.10(B) part 2. R.C. states: “If the board determines that the location of all or a modified, facility modification, upon provided should be condition its certificate counties, therein, municipal corporations persons residing affected shall the modification given have been thereof.” reasonable notice certificate, a the board shall hold amendment of for an application
On hearing held on an the same manner as hearing in any in the would result change facility if the proposed a certificate or a facility substan- impact environmental any material increase * * *. facility portion in the of all or such change tial location added.) 4906.07(B). (Emphasis subject what is authority determine But the board must retain gray whether white or screws used every (e.g., issue
hearing surely— case, room), In this we conclude the control would be unworkable. of the certificate and regarding drew the line issuance reasonably conditions. imposition B. Is Hearing Unnecessary Further for further argue The dissenters that this matter should be remanded *8 hearings might accomplish. It is difficult to understand what additional hearing. by parties All issues were and witnesses at the length debated hearing. Buckeye comply must with the certificate and conditions evidentiary by explicitly upon public the board. This certificate is based imposed Furthermore, in hearing. forth and at we information as set in that “in emphasize specifically recognized the board its order accordance 4906.07, Code, hearing with Revised the Board is to hold a in the required Section application, same manner as on the where the amendment of a certificate involves any change in in any impact material increase environmental or substantial Pub. No. portion facility.” location of all or Util. Comm. 08-666-EL- BGN, Contrary argument, provided at 82. dissenters’ was full if may significant and further be held opportunity hearing, hearings changes are made to the certificate. Buckeye provide The board’s order allows additional information on
{¶ 32} evolves. But must process several issues as the construction construct board. by its wind farm accordance with the certificate issued comply Penalties be assessed if does not with the 4906.98. its authority certificate. R.C. 4906.97. We now hold board acted within is no Buckeye’s certificate based on its conditions. There need for granting delay. that the operational first three law assert neighbors’ propositions
{¶ 33}
the contrary,
noise
To
vague
limits set
are either
unreasonable.
poses
That the
sets discernible noise limits.
standard is flexible
order
issues,
facing
may proceed
legal
agency, particularly when
new
problem—an
incremental,
case-by-case basis. See
Exchange
Securities &
Comm. v. Chen-
194, 202-203,
(1947) (an
ery Corp.,
332 U.S.
67 S.Ct.
setbacks are not supported by the but ample order, evidence supports the and numerous conditions in the order will ensure their adequacy. The fifth proposition Buckeye’s asserts one of witnesses lacked sufficient expert knowledge testify regarding technical issues. neighbors have not shown that he lacked expert knowledge or that they prejudiced. were Finally, in its sixth proposition, assert that the board erred disallowing the testimony of one of its witnesses. The witness was unable to hearing, attend the and the neighbors have not shown that board erred requiring his attendance. Finally, the political-subdivision appellants do not present any argu-
ments that warrant reversal. pertinent statutes do not require the county engineer to have final say bond, over the amount any road and evidence introduced at the hearing supported the amount required for the decommission- ing bond.
IV. Conclusion
4906.12,
Pursuant to R.C.
we must apply the
same standard of review to
determinations of the Power Siting Board as we do to orders of the Public
*9
Utilities Commission. Accord
Twp.,
238,
Chester
{¶ 37} utilities to provide portion electricity their supply from energy alternative sources by 2025. R.C. 4928.64 and 4928.65. today Our decision give does not the board a free pass to avoid dealing with controversial or complex issues or to resolve issues without public participation judicial or review. To contrary, statutory process within Chapter 4906 is detailed and requires input various stakeholders before a certificate is granted for construction of a new electric generation case, In facility. the board has followed all statutes and decision in record. board’s on the evidence its determinations has based affirmed. lawful, the order is therefore reasonable and is affirmed.
Order Brown, J., concur. O’Connor, C.J., and McGee only. J., judgment concurs in
O’Donnell, Lundberg Cupp, JJ., dissent. Stratton, Pfeifer, J., dissenting. Pfeifer, Shakespeare, Henry nobody.” William profits “111 the wind that blows III, II,
VI, Act Part Scene I hold because would I further dissent I dissent. join Justice Stratton’s Salem, Goshen, Town- and Union County and Champaign in favor of appellants (“OPSB”) regarding Board Siting Power the decision of the Ohio ships on decommissioned windmills. removing to cover the cost of bonding many bulb? As light it take to many windmills does How geographically preposterous It subsidize. be will government Upper farm in San- energy a solar building in like windmills Ohio—not build willing long government But for how do have wind. dusky we —since undependable? that is uneconomical of energy production a form subsidize concern; is, that what is one matter of of windmills The mechanical obsolescence technological- they when become whirligigs white whopping, will become of these to other windmills? comparison even ly outmoded really power concern. The winds alternative- bigger But there is a winds, sometimes these, subject change, also projects political like energy Tribune: Chicago From a recent article change. abrupt or layoffs and stalled is massive power industry predicting The wind Thursday failed to renew a tax credit after a deal projects abandoned Washington. states such major have ramifications expected
The move Illinois, 13,892 planned projects enough wind megawatts where — to the to be connected seeking per year million homes power 3.3 —are significantly will be abandoned projects of those grid. Many electric *10 federal subsidies. delayed without Tribune, End Credit a Wind Power
Chicago Industry, http:// Tax Blow for www.chicagotribune.conVbusiness/ct-biz-0217-wind-ptc-20120217,0,7153601. (accessed 2012). story?page=l Feb. ends, windmills, companies windmill welfare the that When build
{¶42} they dependent government largesse regulation, disappear. are on will just Then what? utilities do not own public they Ohio’s the are forced windmills— purchase power the from will generated them —and thus be under no obli- relics, gation to decommission them. Windmills will become 492-foot-tall white elephants, to our quixotic quest monuments for alternative One such energy. trick; monument do the many Champaign County. would too for Granted, in this case we are with the amount bond dealing of a to cover period from commencement of construction of the through windmills $5,000 turbine, first The bond year. OPSB set that at the fact per despite that testimony appellants’ board heard from expert decommissioning could $300,000 cost as much per turbine. But Wind’s witness testified that it is “inconceivable” need to be within decommissioned “inconceivable,” first five He years. uses that word but I it do not think means what it he thinks means. technology behind the might prove windmills years, untouchable for five but is entirely conceivable that the bottom could drop out of the market for wind or that fail Wind could as a company. It would not be first alternative-energy concern to turn off its lights. work, is question not whether the it’s turbines whether the economics work. energy likely The answer our future not blowing wind. It is incumbent on the OPSB to there insist that is reasonable protection windmills, decommissioning that decommissioning whenever might occur. was no presented $5,000 There evidence at the hearing that the per turbine required adequate way the OPSB is any actually bring down a windmill. No witness that that testified nominal amount was sufficient to protect public if interest the windmills were abandoned. the public certainly And most has an interest protection. that needs just The interest does lie with the who thought they homeowners were buying piece little rural County heaven Champaign pristine now have their because, views large obscured. has an ultimately, interest the state could be left deal with the aftermath of a experiment. failed I suspect generation this latest way of windmills will go time, leisure suit: fashionable for a causing but us to ultimately say, “What were we But Goodwill thinking?” there’s no store in the world big enough to take them off our hands. J.,
Lundberg concurs opinion. foregoing Stratton,
461 Lundberg J., Stratton, dissenting. and it public power, with important Board is vested Siting The Power
{¶ 47} major utility companies and disputes to resolve between upon is called frequently scrutiny sidestep public allows the board to Today’s citizens. decision ordinary be done it But the business should public’s whenever desires. judicial review Therefore, sense, it I dissent. the law. only common is that is public, the affected opinion lead have denied citizens I. The board and only opportunity to be project heard. this their state, operation construction and of In our the to oversee the Siting one alone: the Power entity has been to major utility given facilities commissions, zoning county representatives, Local authorities —elected Board. where, whether, major power or how be projects courts—have no over say landowners, neighboring appellants run. So when the built and R.C. 4906.13. case, height to build wind turbines the Buckeye learned that wanted this homes, they their went the only a few hundred feet from land skyscrapers board, only place they the could go. very turned project up of the some real neighbors’ investigation machines, very example: large Take for turbines are
concerns. one Wind shear,” is known “blade type can break down. One of breakdown machines is, present Blade would a serious risk shearing a blade off the hub. shear from say least. are mounted over 300 feet the danger, the The blades air, the length reach feet the and stretch half football ground, almost 500 into field. could 500 Buckeye fly only the board that shorn blade feet. assured than minimum from only neighboring proper-
That was feet less the setback ties, little staff for leaving margin error. When board’s asked data, different, Buckeye’s prediction pertained turned out that to a supporting turbine, informed that “no company smaller and the staff such calculation Nevertheless, despite for the either evidence lacking existed” turbines. physics attempt or sufficient even to calculate the distance competence fly, Buckeye’s proposal. could off responsible signed blade the staff member stated, Applicant believes that the portion investigatory report His “Staff potential impact from blade shear at adequately evaluated described boundary.” property the nearest neither were satisfied with this investi- Understandably, they
gation guinea experiment, nor a blade-shear so took pigs wanted to be board, But rather than approval this issue to withhold board. determined, It project. simply until project approved safe setbacks were staff, else, used to and no one “formula” provide required calculate distance a could thrown. this same had blade Since staff lacked attempt to even such a calculation in the first it is competence place, open to good such a question providing what formula would do. And the board did not require Buckeye parties, or staff to share the formula with other to file it in the record, review, otherwise resubmit the issue for so no one else would Buckeye’s ever be entitled to scrutinize calculations. Thus, represents even the final though appeal review the final board,
order of we have evidence built being safely *12 homes, away yards from and we never will. Yet the lead opinion affirms the order.3 law requires The otherwise. The has legislature required the board to
{¶ 53} record, like settle issues this front on a it up public specifically guarantees affected citizens to in right process the participate review and to have their voices heard. See that (requiring R.C. 4906.07 the board hold public hearings), 4906.08(A)(3) (neighboring party citizens are entitled both to status and to call witnesses), and examine 4906.09 to (requiring keep board a record of its 4906.10(A) proceedings), all (requiring the board make substantive determina- construction), tions before authorizing and 4906.11 (requiring board issue a decisions). written opinion stating the reasons for its Issues are not be settled is approved, by construction much less unaccountable staff members without after scrutiny or public judicial board, review. Yet that is what the precisely and now the lead opinion, allowed. opinion
II. The lead any response does offer not workable right denial of the hearing. citizens’ to a lead opinion suggests The there three remedies now available to the {¶ 54} neighbors, but none of them cures the lead problem. opinion ignores plainly required solution law: give neighbors their hearing. plainly permits nonpublic
A. The proceedings. order First, the opinion lead states that in “[njothing suggests the order that {¶ 55} actions would occur secretly.” [staffs] That is not true. simply Each one of the challenged by issues appellants as improperly delegated allows staff to resolve those issues alone or either in consultation Buckeye with alone. In re Wind, Application 08-666-EL-BGN, Buckeye Pub. Util. Comm. at No. 83-84 (2010) (collection (Blade system issues), plan, complaint procedures, and other 90 only major Among things, This is not the left issue unresolved. other the board approved approve this but allowed staff to new locations several turbines. It also hearing allowed though use new turbines that had not been examined at —even Buckeye’s own witness had admitted on that if a the record different turbine were used than the studied, analysis ones that he had his “whole would have to be rerun.”
463 (turbine model). does not (relocation turbines), The order throw), Buckeye. meeting of any of the time and given place that notice be require order does meetings. these kept records to be require does not The order not require order does to attend. The parties be allowed that other require The order parties. with other be shared meetings these that materials shared not require order does writing. put that decisions require does not any further all is to avoid And the effect of the board. further review by this court. review opinion points The lead any meaningful sense. secrecy This suggests i.e., allow way, third-party participation cut other
to no provisions meet with order that its staff affirmatively did not Although review. board records or keeping time and without place alone at an undisclosed to occur. meetings such secret writing, has allowed putting decisions opinion lead B. The statute cited protection. neighbors offers have additional neighbors opinion suggests The lead also way. the other point But order and the statutes process before the board. did not foreclose the opinion The lead claims that *13 fact, portion quoted not In of the order input. from This is true. providing stating neighbors by opinion precisely opposite point, the lead makes an already to a certificate has “Any party application have had their chance: matter, oppose to staffs neighbors] as done opportunity, group [the added.) propose (Emphasis conditions or to additional conditions.” recommended than us that the point. brief confirms this Rather assure appellate board’s they any the board asserts that have neighbors process, will have additional “all process] required.” received that [the give the also that there are statutes that opinion lead states its certificate.” Buckeye to file before the board if violates
neighbors right “the 4906.07, neighbors does not authorize the to do It R.C. but that section cites a “an for an amendment of Buckeye it authorizes to file anything; its as far as the issues will never need to amend certificate Buckeye certificate.” not a to staff concerned. certificate does create substan- delegated requires meetings with staff. So govern project, simply tive standard to but staff, it not—it afoul of the long will cannot—run Buckeye as meets rule, can is no there be no parts of its certificate. Where there pertinent violation, need and there will be no amendment. 4906.98, statutes, the neighbors R.C. 4906.97 do authorize Two other
{¶ 60} runs “other than in if builds or Buckeye to the board complain 4906.98(B). R.C. But the same certificate has obtained.” [it] with the compliance itself; staff, problem presents delegated to the issues to the the certificate any govern simply meeting does not create standard to It a project. requires staff, certificate, Buckeye with staff. Once meets with it has with the complied implemented, any complaint the staffs decisions be for a violation of the certificate fail. would if the Finally, neighbors even did have some mechanism to challenge future,
staffs that would remedy justify disregarding decisions to a neighbors’ right hearing Realistically, now. a it overturning decision after a presents has been made and a implemented higher swaying hurdle than up always to unring decision front —it is harder the bell. And if the neighbors on prevail postconstruction impose were somehow complaint, this could significant on Buckeye. costs Suppose that chooses a different turbine than the model 62}
{¶ analyzed hearing; order simple allows do so condition that “provide it additional negative impacts assurances would be intro- despite Buckeye’s assurances, duced.” Suppose the new turbine turns out enough to be loud that it violates noise standards the certificate. The down, legally would entitled have the shut replaced, turbines or efficient, surely removed. But the more cost-effective outcome been would have analyze reject purchased model it offending was and installed. before 4906.10(A) requires relevant, C. R.C. the board to resolve grants material issues before certificate. 4906.10(A) Finally, opinion the lead require states that R.C. does not “finally issues be resolved before certificate be issued.” simply ignores language
This of the statute. ** 4906.10(A) states, *, “The grant board shall not a certificate board, either as modified it” unless makes the required findings determinations. The default position is “shall not and that grant,” *14 only changes findings when the board makes and determinations. All of the delegated issues to one necessary findings. related or more of those So, contrary statement, to the lead opinion’s required the law these to be issues resolved before the certificate is issued. irony in making here is the lead opinion, points, these seems to
recognize allowing staff unaccountable members to resolve issues private is a it problem. But offers workable solution to that problem. necessary fairness, Buckeye provide safety copies In to also had staff with of the manual and manufacturer contact information. persons that accountable require to reverse order and simply
solution required by law. following public process after resolve these issues designed protect Today’s the laws to renders ineffectual III. decision utility projects. living near the interests of citizens near the anyone living for of this decision is unfortunate The outcome substation, line, high- electric transmission proposed high-voltage site of into If the board runs an issue generation pressure gas pipeline, plant. if simply prefers with—or reason it does not want deal for whatever judicial and public participation without the discomfort of resolve issue now; work out the Approve off-ramp. now a broad review—it formal right participate, retains a public details with the later. The company more than a right anything amounts to up it is to the whether that but board formality. If, as it in this case. precisely happened This is alarmist but what very siting case, can of facilities— siting delegate in this power
did its name—it power siting from which the board derives duty, duty its core identifies opinion and The lead no enforceable delegate anything everything. can trusts that the board delegate apparently but limits the board’s opinion’s can that the lead trust wisely. hope its new One exercise discretion left to founded, view, public’s business should not be my well but proves are not accountable appointed staff members who unreviewable discretion light day. and should have see bear public. to the board’s decisions reasons, dissent, I order and remand For these I and would reverse the required by law. for completion proceeding case Cupp, JJ., opinion. foregoing concur Pfeifer L.L.C., Walker, for & Walker, Kley, Christopher Jack A. Kley Van Van McConnell, McConnell, Diane United, Robert appellants Neighbors Union Julia F. Johnson. A. County Prosecuting Attorney, A. and Jane Selvaggio, Champaign
Nick County Attorney, appellants Champaign for Prosecuting Assistant Napier, Goshen, Salem, Townships. and Union L. DeWine, General, L. Werner Mar- Wright, William Attorney
Michael General, for III, Jones, Attorneys appellee. Assistant gard and John H. Petricoff, M. Sater, Pease, L.L.P., Stephen Seymour & M. Howard Vorys, Wind, L.L.C. Howard, Settineri, intervening appellee, and Michael J. *15 Larry Gearhardt, Chad A. Endsley, and Leah F. Finney, urging affirmance for curiae, amicus Ohio Farm Bureau Federation.