BEFORE

THE OHIO POWER SITING BOARD

In the Matter of the Application of
6011 Greenwich Windpark, LLC for an
Amendment to its Certificate to Install
and Operate a Wind-Powered Electric
Generation Facility in Huron County, Ohio.

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Case No. 15-1921-EL-BGA

GREENWICH NEIGHBORS UNITEDS RESPONSE TO

6011 GREENWICH WINDPARK, LLCS REPLY

Samuel C. Randazzo (Reg. No. 0016386)

(Counsel of Record)
Scott E. Elisar (Reg. No. 0081877)
MCNEES WALLACE & NURICK LLC
21 East State Street, 17TH Floor
Columbus, OH 43215
Telephone: (614) 469-8000
Telecopier: (614) 469-4653
sam@mwncmh.com
(willing to accept service by e-mail)
selisar@mwncmh.com
(willing to accept service by e-mail)
DECEMBER 29, 2015
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ATTORNEYS FOR GREENWICH NEIGHBORS UNITED

BEFORE
THE OHIO POWER SITING BOARD
In the Matter of the Application of
6011 Greenwich Windpark, LLC for an
Amendment to its Certificate to Install
and Operate a Wind-Powered Electric
Generation Facility in Huron County, Ohio.

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Case No. 15-1921-EL-BGA

GREENWICH NEIGHBORS UNITEDS (GNU) RESPONSE TO

6011 GREENWICH WINDPARK, LLCS REPLY

On December 17, 2015, 6011 Greenwich Windpark, LLC (Wind Farm) filed its
Reply to Comments and Objections of Greenwich Neighbors Uniteds Comments and
Objections (Reply) which were filed in this proceeding on December 3, 2015. GNUs
Comments and Objections were focused on the Wind Farms application to amend a
certificate1 (Application).

More specifically, the Application seeks authority to add

three turbine makes and models to the one turbine make and model identified for
purposes of the certificate sought in Case No. 13-0990-EL-BGN. The three turbine
makes and models that are the object of the Wind Farms current affections include
machines that are, among other things and according to the Wind Farms Application,
noisier, bigger, and generate more shadow flicker.
To the extent the Wind Farms Reply is a permissible pleading, GNU responds
below.

It is GNUs position that the certificate issued in Case No. 13-0990-EL-BGN was issued unlawfully.

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I.

ACCELERATED PROCESS AND REMEDYING THE CONFUSION CREATED

BY THE WIND FARM
At page 4 of the Reply, the Wind Farm states that it has not taken the position

that the application in this proceeding qualifies for an accelerated review process. GNU
accepts the Wind Farms representation.
But, as GNU explained previously, this representation by the Wind Farm is
necessary because of the newspaper notices which the Wind Farm apparently caused
to be published without any authorization from the Ohio Power Siting Board (Board).
As GNU demonstrated previously, the published notices2 stated that interested parties
had ten (10) days to intervene and submit comments. As the proof of publication filed
by the Wind Park on December 3, 2015 shows, that newspaper notices state:
Affected persons may file comments or motions to intervene in this matter
with the Board up to ten (10) days following the publication of this notice.
If the Wind Farm was not seeking an expedited review process, why did it suggest
otherwise by causing these newspaper notices to be published?
To avoid perpetuating the public confusion created by the notices published by
the Wind Farm, GNU urges the Board to direct the Wind Farm to publish a correction
notice (in the same newspapers it used to publish the unauthorized notice) stating as
follows:

The content of the published notice is entirely defective relative to the goal of informing the public of the
content and significance of the relief requested by the Wind Farm.

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Correction Notice by 6011 Greenwich Windpark, LLC

The purpose of this notice is to alert the public to an error in a notice
published by 6011 Greenwich Windpark, LLC in the Norwalk Reflector and
the Greenwich Enterprise Review on November 20, 2015 and
November 24, 2015, respectively. These notices were published without
authorization by the Ohio Power Siting Board and they erroneously stated
that affected persons had ten (10) days following the publication of each
notice to file comments or motions to intervene with the Ohio Power Siting
Board. However, the deadline for motions to intervene, comments or any
other action that might be taken has not been established by the Ohio
Power Siting Board. When the Ohio Power Siting Board does establish a
procedural schedule for Case No. 15-1921-EL-BGA, correct notices will be
published in these newspapers.
II.

SETBACKS THE APPLICATION MUST BE REJECTED

The Wind Farms Reply did not address GNUs request that the amendment

Application be rejected as a matter of law.

R.C. 4906.201 states that [a]ny amendment made to an existing certificate after
the effective date of the amendment of this section by H.B. 483 of the 130th general
assembly, shall be subject to the setback provision of this section as amended by that
act.

R.C. 4906.201 also states that the minimum setbacks contained in R.C.

4906.20(B)(2) are applicable to facilities of the size proposed by the Wind Farm. Thus,
the Wind Farms amendment triggers the application of the current minimum setback
requirements in R.C. 4906.20.
As discussed in more detail below, the Wind Farms Application in this
proceeding indicates that the Wind Farms project (as modified to include the new
turbine makes and models) continues to substantially violate the minimum setback
requirements.

The request to add bigger turbine makes and models affects the

computation of the minimum setback requirements. As the Board has already held in
Case No. 13-0990-EL-BGN, the Board has no authority to permit the Wind Farm to

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evade the minimum setback requirements. That holding applies regardless of whether
that evasion is documented in an initial certificate application or in an application to
amend a certificate. And, when the Board determines that a setback greater than the
minimum is warranted, as GNU believes the Board must find in this case should it
proceed, the Wind Farm may not evade the Board-specified reasonable setbacks by
securing waivers from adjoining property owners. R.C. 4906.20(B)(2)(c).
In public meetings, the Wind Farm has claimed that it has secured all the
necessary waivers that it must secure from property owners adjoining the Wind Farm
property to permit it to evade the minimum setback requirements. The comments filed
in Case No. 13-0990-EL-BGN and the comments filed in this proceeding (incorporated
herein by reference) demonstrate that many owners of property that have been
identified by the Wind Farm as adjoining property owners are objecting to the project
and that the Wind Farm has not secured the waivers required to evade the minimum
setback requirements.
Additionally, any waivers the Wind Farm may have obtained could not be based
on the current minimum setback requirements (the application of which has been
triggered by the Application) and any lawfully obtained waivers can only be secured,
pursuant to R.C. 4906.20(B)(2)(c), by following a procedure the Board must establish by
rule. The Board has never established any rule specifying the procedure by which a
minimum setback waiver may be secured.
Thus, any setback waivers that the Wind Farm may have obtained cannot, as a
matter of law, license evasion of the minimum setback requirements, requirements
which the Board has no authority to waive.

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In any event and even if the Board had adopted a rule establishing the procedure
by which the Wind Farm might lawfully secure waivers from the minimum setback
requirements, the Wind Farm has made no showing that it has secured waivers from all
property owners adjoining the Wind Farm property. And it has made no effort to show
that the minimum setback requirements are reasonable based on the relevant facts and
circumstances.
Accordingly, the Board must reject, as a matter of law, the Wind Farms
Application to amend the certificate issued in Case No. 13-0990-EL-BGN, a certificate
that GNU believes should have never been issued in the first place.
III.

DUE PROCESS
To the extent that the Board does not reject or dismiss the Application, it must

nonetheless subject the Application to a process that includes a local public hearing and
an evidentiary hearing.
At page 5 of the Reply, the Wind Farm concludes by urging the Board to deny
GNUs request for a hearing. On the way to this conclusion, the Wind Farm essentially
asserts that its Application in this proceeding raises no issues. To support its effort to
block a hearing, it cites some decisions discussed below.
First, it is important to note that R.C. 4906.07 specifies the circumstances when
the Board must hold a hearing. It does not preclude the Board from holding a hearing
in other circumstances.
In this case, the Wind Farm is seeking authority to amend a certificate by adding
new turbine types (the specified Gamesa, General Electric, and Goldwind makes and
models). In the Application, the Wind Farm states that:

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(1)

The three proposed turbines are better fitted to low wind speed
conditions and that they all provide an increase in energy
production . In other words, the Wind Farms Application
indicates that the proposed turbines will operate more frequently
than the one turbine type that was the focus of Case No.
13-0990-EL-BGN.3

(2)

The Gamesa G114 and Goldwind GW121 turbines have a total

height greater than the Nordex model which was the focus of Case
No. 13-0990-EL-BGN.4

(3)

The Gamesa G114, Goldwind GW121 and the GE 2.5-120 each

have a maximum sound power level that is greater than the
maximum sound power level of the Nordex model which was the
focus of Case No. 13-0990-EL-BGN.5

(4)

The Wind Farms shadow flicker modeling for the Gamesa G114,
GE 2.5-120 and Goldwind GW121 predicts shadow flicker in
excess of 30 hours per year. The predicted excessive shadow
flicker for the GE 2.5-120 and the Goldwind GW121 affects more
receptors than was the case for the Nordex model which was the
focus of Case No. 13-0990-EL-BGN.6

(5)

The Goldwind GW121 and GE 2.5-120 have a rotor diameter

greater than the Nordex model which was the focus of Case No.
13-0990-EL-BGN.7

As the Board knows from the hundreds of comments filed in Case No.
13-0990-EL-BGN, including comments of adjoining property owners, which express
objections and concerns,8 there is strong local opposition to the Wind Farms proposals
and intentions.

The comments which have thus far been filed in this proceeding,

including the comments of adjoining property owners, identify similar concerns and

Application at 1. Page 5 of the Application states: Given the characteristics of the wind at many of the
intended turbine locations, these turbines would result in increased productivity for the project.
4

Id. at 1.

Id. at 1-2.

Id. at 2.

Id. at 9.

The comments filed in Case No. 13-0990-EL-BGN are hereby incorporated by reference.

{C49025:2 }

objections and identify aspects of the Application that require new or updated studies
and evaluations which have not been undertaken or submitted by the Wind Farm.
Given the impacts which the Wind Farm itself attributes to the new turbine makes
and models identified in the Wind Farms Application, the significant local opposition,
the Wind Farms extensive violation of the minimum setback requirements in prior law,
and the Wind Farms failure to conform its Application to the current setback
requirements (which are applicable to its Application due to the timing of the
Application), GNU urges the Board to find that it must hold a hearing pursuant to R.C.
4906.07. In the alternative, GNU urges the Board to find that even if the proposed
modifications might not materially increase the environmental impact of the facility or
cause a substantial change in location of all or a portion of the facility, the history, facts
and circumstances associated with this proceeding and Case No. 13-0990-EL-BGN
require the Board to conduct a thorough examination and to hold a local public hearing
as well as an evidentiary hearing for the purpose of resolving contested issues.
To contest GNUs request for a hearing, the Wind Farm relies on Board decisions
in In the Matter of the Application of Paulding Wind Farm II, LLC, Case No.
10-3128-EL-BGA, In the Matter of the Application of Hog Creek Wind Farm, LLC, Case
No. 11-757-EL-BGA, In the Matter of the Application of Blue Creek, LLC, Case No.
11-1995-EL-BGA, In the Matter of the Application of Hog Creek Wind Farm, LLC, Case
No. 11-5542-EL-BGA and In the Matter of the Application of Black Fork Wind Energy,
LLC, Case No. 14-1591-EL-BGA.

However, these decisions involve law, facts and

circumstances that are very different than are relevant or present here.

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For example, none of the cases relied upon by the Wind Farm involves the
construction of turbines at locations that violate minimum setback requirements. Here,
the Wind Farms Application states that for 16 of the 25 proposed turbine locations,
the minimum setback of the 1.1 times the structure height to the nearest adjacent
property boundary is penetrated. (Turbines 1, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 17, 21,
22 and 25).9 And, as previously noted, the increased size and dimensions of the
proposed new turbines affect the computation of the minimum setback requirements.
IV.

CONCLUSION
For the foregoing reasons, GNU requests that the Board direct the Wind Farm to

publish a correction notice, and reject the Wind Farms Application or, alternatively, to
hold a local public hearing as well as an evidentiary hearing to resolve contested issues.

Respectfully submitted,
/s/ Samuel C. Randazzo
Samuel C. Randazzo (Reg. No. 0016386)
(Counsel of Record)
Scott E. Elisar (Reg. No. 0081877)
MCNEES WALLACE & NURICK LLC
21 East State Street, 17TH Floor
Columbus, OH 43215
Telephone: (614) 469-8000
Telecopier: (614) 469-4653
sam@mwncmh.com
(willing to accept service by e-mail)
selisar@mwncmh.com
(willing to accept service by e-mail)

Application at 26.

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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Greenwich Neighbors Uniteds
Response to 6011 Greenwich Windpark, LLCs Reply has been served via electronic
mail upon the following parties of record this 29th day of December 2015.

/s/ Samuel C. Randazzo

Samuel C. Randazzo
Sally W. Bloomfield
Dylan Borchers
Bricker & Eckler LLP
100 South Third Street
Columbus OH 43215-4291
Phone: 614.227-2368 / 614.227.4914
Fax: 614.227.2390
sbloomfield@bricker.com
dborchers@bricker.com
ATTORNEYS FOR 6011 GREENWICH WINDPARK,
LLC
Chad A. Endsley (0080648)
Chief Legal Counsel
Leah F. Curtis (0086257)
Amy M. Milam (0082375)
Ohio Farm Bureau Federation
280 North High Street, P.O. Box 182383
Columbus, OH 43218-2383
Phone: 614.246.8258
Fax: 614.246.8658
E-Mail: cendsley@ofbf.org
lcurtis@ofbf.org
amilam@ofbf.org
ATTORNEYS FOR THE OHIO FARM BUREAU
FEDERATION
William L. Wright
Assistant Attorney General
Chief, Public Utilities Section
Office of the Attorney General
180 East Broad Street, 6th Floor
Columbus, OH 43215-3793
william.wright@puc.state.oh.us
ATTORNEY FOR THE STAFF OF THE OHIO POWER
SITING BOARD

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This foregoing document was electronically filed with the Public Utilities
Commission of Ohio Docketing Information System on
12/29/2015 10:49:01 AM
in
Case No(s). 15-1921-EL-BGA

Summary: Response of Greenwich Neighbors United to 6011 Greenwich Windpark, LLC's

Reply electronically filed by Mr. Samuel C. Randazzo on behalf of Greenwich Neighbors
United