PSC issues final written decision denying Highland Wind Farm application

By LeAnn R. Ralph

MADISON —  The Public Service Commission of Wisconsin has issued the final written decision denying the Highland Wind Farm application for the Towns of Forest and Cylon.

The 32-page decision is dated March 15 and pertains to Highland’s proposed project to build up to 44 wind turbines in Forest with the substation located in Cylon.

The project would have connected with the existing Northern State Power Company’s electric transmission system.

The PSC’s decision to deny the application was not unanimous.

Two of the three PSC commissioners voted to deny the application. One commissioner wrote a five-page dissenting opinion about why the other two commissioners were wrong.

According to the PSC’s written decision, the project area would have covered 26,500 acres of agricultural land, and Highland Wind Farm has agreements with landowners in the area for 6,200 acres.

Highland identified 41 primary sites for wind turbines and 11 alternate sites. The company spent six years and $2 million developing the 102.5 megawatt project.

The Town of Cylon approved plans for the $5 million substation in June of 2012, and the St. Croix County Zoning Board of Adjustment approved the plans in July.

Noise limits

The PSC’s denial of the Highland application revolved around computer modeling for exceeding sound limits.

Wisconsin Administrative Code PSC-128 for wind turbines sets a sound limit of 50 decibels during the day and 45 decibels at night.

PSC-128 does not set a standard for a “ground absorption coefficient” for computer modeling. The coefficient can range from 0.0 to .5 to 1.0 and pertains to the type of terrain and how well it will absorb sound.

A coefficient of 0.0 refers to hard ground that will not absorb sound and 1.0 refers to conditions of terrain and topography that will absorb sound.

Highland submitted sound models using a coefficient of 0.0 and also .5 for a revised layout of the wind turbines.

According to the written decision, Clean WI suggested using a coefficient of .5 because it would be a realistic predictor of sound considering the terrain in the Town of Forest.

The Forest Town Board and the Forest Voice wanted 0.0 used for worst-case predicted sound models.

The results of Highland’s computer model using 0.0 show that the wind turbines would not exceed 50 decibels during the day but would somewhat exceed 45 decibels at night for between 20 and 45 residences that did not have wind turbine contracts.

According to a table in the written decision, 50 of the 55 turbines would have exceeded the night-time limit by up to 1 decibel; 29 would have exceeded the limit by between 1 and 2 decibels; nine would have exceeded the limit by between 2 and 3 decibels; two would have exceeded the limit by between 3 and 4 decibels; and none of the turbines would have exceeded the night-time limit by between 4 and 5 decibels.

The sound of rustling leaves is 10 decibels. A ticking watch held up to the ear is 20 decibels. A refrigerator running or a human voice speaking is 50 decibels.

Shutting down

Programming the wind turbines to slow down or shut off under certain wind conditions to reduce the amount of sound produced is called “operational curtailment.”

The PSC has not decided whether operational curtailment to comply with noise standards is acceptable during the design phase or only after the wind turbines are built.

The PSC concluded, however, that Highland did not present enough evidence that including plans for shutting down the turbines is acceptable during the design phase.

Highland also did not provide any results for computer-modeling of turbines that were programmed to slow down or shut off during certain wind conditions, the written decision notes.

Emergency

Following the PSC’s decision during a meeting February 14 to deny the application but before the written decision was issued, Highland filed an “emergency request” to submit additional evidence and asked the PSC to reconsider its preliminary decision.

The PSC’s response to the emergency request was to say that it was normal procedure to not allow an appeal until after the written decision was issued.

In addition, granting Highland’s emergency request would not allow enough time for other interested parties, such as the Forest Town Board and the Forest Voice, to respond, according to the final decision.

One reason stated in the emergency request for asking the PSC to reconsider the preliminary determination was the opportunity to use production tax credits.

An Xcel Energy (Northern States Power) request for wind proposals was announced on February 15, 2013, and is asking that proposals be submitted by April 1.

Xcel Energy is hoping to take advantage of a recent one-year extension on federal production tax credits.

Environment

A review of Highland’s wind turbine project with the state Department of Natural Resources determined that an Environmental Impact Statement was not necessary.

The project “would not have a significant effect on the human environment,” according to the PSC’s written decision.

Another hearing

According to the PSC’s decision, Highland has the right to petition the PSC for a rehearing within 20 days of the date on the written decision.

Highland also has the right to file a petition with a circuit court for a judicial review of the case within 30 days if there has been no petition filed for a rehearing.

If Highland files a petition for a rehearing, the company has 30 days after the final disposition of the rehearing to file for a judicial review.

Disagreement

In his dissenting opinion, Commissioner Eric Callisto wrote that he disagrees with the other two commissioners about denying Highland’s application because the “denial misapplies our wind siting rules … and introduces substantial uncertainty into the regulation of wind siting in Wisconsin.”

The PSC’s decision is based on “faulty interpretation” of PSC-128, Callisto writes.

The rules on wind turbines cannot be “rationally read to require that projects be designed and modeled to never exceed 45 (decibels) at all non-participating residences. The rules plainly allow the operation of turbines at 50 (decibels) during the day.”

Callisto goes on to say, “It makes no sense to simultaneously allow turbines to operate at 50 (decibels) during the day while also requiring those same turbines be site-designed in advance to never, under any circumstances, operate at levels that exceed 45 (decibels). But that is exactly the effect of the Final Decision, and it is the chief reason why it is incorrect.”

Although the PSC’s final decision says that Highland did not show enough evidence that using curtailment in the design phase was acceptable, Callisto notes that the PSC’s rules state “methods available for the owner to comply with [the noise limits of 50 dBA during the day and 45 dBA at night] shall include operational curtailment of one or more wind turbines.”

Callisto also wrote that he disagreed with the decision to deny the emergency request for Highland to submit additional evidence and that there was “ample opportunity for sufficient due process.”

Noise modeling and compliance methods were the primary issue and were not new to any of the parties involved in the case, he said.

At the March 1 meeting (following the filing of the emergency request on February 22), the PSC could have set another hearing with ten days of advance notice, consistent with state law, that would have allowed time to prepare for cross-examination and rebuttal testimony, Callisto wrote.

Backward

One “troubling aspect” of the PSC’s final decision is the lack of clear regulatory direction for the wind industry, and “this is a step backward,” Callisto wrote.

Prior to PSC-128, the regulatory situation for wind turbines in Wisconsin was a “patchwork,” but after PSC-128, it appeared that the wind industry “was on notice as to what the rules were and how to play by them,” he said.

“The Final Decision undoes that. In its wake, we will have a 50 (decibel) day time operational noise limit but a pre-construction design requirement of 45 (decibels) for both day and night,” Callisto wrote.

The PSC now has a rule that allows operational curtailment (slowing down the wind turbines) as a preferred method for complying with noise limits but a PSC that is not willing to consider how curtailment will affect predicted noise levels, he wrote.

“This is not a regulatory environment that is conducive to business development or one which provides clear direction to local governments seeking to enact wind siting ordinances,” Callisto wrote.

“We have uniform wind siting rules on the books. It is time to clearly and transparently apply them,” he concluded.