St. Croix judge hears oral arguments in Forest vs. PSC

By LeAnn R. Ralph

HUDSON — A St. Croix County circuit court judge spent four hours asking questions and listening to answers in the case of the Town of Forest vs. the Public Service Commission of Wisconsin October 21.

The Forest Town Board asked for a judicial review of the PSC’s decision last year to grant approval Highland Wind Farm to construct up to 44 wind turbines in the Town of Forest. The substation for the project would be in the Town of Cylon.

Judge Edward Vlack is assigned to the case.

The Forest Voice, a concerned citizens’ group, petitioned the court in May to also participate in the case, but Judge Vlack issued a decision June 3 denying the Forest Voice’s petition.

Based on the questions asked by Judge Vlack and the answers from the attorneys representing the PSC, Highland Wind Farm and the Town of Forest, the main issues include PSC 128 (the PSC’s wind turbine siting rules); the decibel limits set for daytime and night-time operation of the wind turbines; moving or adjusting turbines for six residences where the occupants have pre-existing health conditions that may make them more sensitive to sound; and the Town of Forest’s Smart Growth land use plan.

Judge Vlack noted at the beginning of the court hearing that it may take six months for him to issue a written decision in the case.

Judge Vlack also noted that no matter what decision he makes, he expects the decision will be appealed.

PSC 128

PSC 128 refers to the Public Service Commission’s rules for siting wind turbines as authorized under the state law governing the Certificate of Public Convenience or Necessity (CPCN).

The PSC initially denied a CPCN for Highland Wind Farm earlier in 2013 but then allowed a rehearing to give the company an opportunity to demonstrate that it could comply with the PSC’s rules.

Last fall, the PSC approved a CPCN for Highland Wind Farm after the company had shown, through modeling, that the turbines could comply with noise limits.

The PSC has approved large wind turbine projects on four different occasions in 2005, 2007, 2010 and for Highland in 2013, although the Highland CPCN was the first for which PSC 128 rules applied.

Under the state’s CPCN law, the PSC can use the Chapter 128 rules as a reference but can impose greater or lesser restrictions, said John Lorence, an attorney representing the PSC.

But under state law, political subdivisions, such as a city, township, village or county, cannot be more restrictive than PSC 128, he said.

Municipalities can choose to have no rules, but “if you want to regulate, (PSC 128) is as far as you can go,” Lorence said.

The Town of Forest has approved a wind licensing ordinance that is more restrictive than PSC 128.

“Forest is asking for different rules,” Lorence said, noting that the Forest Town Board has filed eight different briefs asking for different rules.

The attorney representing the Town of Forest, Marcel Oliveria, made much out of the “shall” consider portion of the CPCN statute relating to PSC 128.

Lorence, the attorney representing the PSC, said the “shall” portion was not as important in “shall consider” but, rather, the statute says “consider” and not “apply.”

The PSC developed the rules in PSC 128, and the way the regulations are applied is the PSC’s interpretation of its own rules, Lorence noted.

The PSC spent years developing the rules, and the courts, both circuit and appellate, have upheld PSC 128, he said.

Ordinance

According to the Town of Forest’s 52-page wind licensing ordinance, the Town of Forest concludes that the 50 dBA (decibels) during the day and the 45 dBA limit at night set in PSC 128 “does not adequately protect town residents from the adverse health effects associated with large wind turbine noise.”

The measurement of dBA refers to decibels measured with a sound level filter (A) in which the sound level meter is less sensitive to very low or very high frequencies.

Instead, the township’s ordinance sets a limit of 35 dBA at night and 45 dBA during the day, or 5 dBA over ambient noise either during the day or at night.

Ambient noise is other noise in the environment, such as wind, thunder, traffic, or farm machinery.

The Town of Forest’s wind licensing ordinance excludes the sounds of birds, insects or humans from what would be considered ambient noise.

A whisper in a quiet library at six feet is 30 decibels. Normal conversation at three feet is 60 to 65 decibels. A telephone dial tone is 85 decibels.

According to the ordinance, background sound is the sound level present at least “90 percent of the time” during a period of observation.

The ordinance does not define what “the time” is, although it could be ten minutes in an hour or several ten-minute intervals and at some point during the night, when it is generally the most quiet outside.

95 percent

One of the questions raised by Judge Vlack concerned the PSC’s finding that the Highland Wind Farm turbines could go above the noise limits, but as long as they were in compliance 95 percent of the time, they would be considered to be in compliance.

Oliveria, the Forest Town Board’s attorney, said he had “no clue” what 95 percent of “the time” meant.

The reference to 95 percent of the time refers to the testing protocols and a particular set of information that is gathered — no matter whether the testing is conducted over the period of an hour, a day, a week or a month, Lorence said.

Determining compliance is up to the PSC, and the law does not require that the PSC set the time limit  “for all time,” Lorence said.

A township, county, city or a village cannot require sound testing if the company has provided test results within two years, said Michael Screnock, an attorney representing Highland Wind Farm.

PSC 128 asks for four ten-minute sound tests in two years, but the PSC’s final decision requires sound testing for Highland Wind Farm six months per year in four locations for three years and also a roving sound monitor that will test in 12 additional locations, Screnock said.

If the Highland Wind Farm meets the sound limits 95 percent of the time within the testing time, the turbines will be in compliance, he said.

The PSC acknowledges that when testing is conducted for six months out of the year, there will be times when the turbines are exceeding the noise limit, he said.

Judge Vlack asked if the Town of Forest would agree that the testing required by the PSC’s final decision was more than was required under PSC 128.

“Yes,” Oliveria replied.

The PSC’s final decision will impose months more testing than PSC 128’s status quo, Lorence said.

PSC 128 does not say “100 percent of the time” or “shall never exceed,” Screnock said.

Six residences

The Town of Forest’s attorney also made much of the six residences identified as sensitive to wind turbine noise because of pre-existing health conditions and wondered why only six had been identified.

During the hearing for the CPCN, no one presented evidence of health problems from wind turbines. The testimony was based on what people “said” regarding “self-reported symptoms,” Lorence said.

Highland voluntarily agreed to curtail the wind turbines for six residences, he said.

There are 17 residences with pre-existing conditions, Oliveria said.

There is no scientific evidence that anyone is affected by wind turbine noise, Lorence said.

The wind turbines were moved for six residences to mitigate noise, but Jaime Junker, Town of Forest chair, said moving the turbines would create worse conditions for other people, Oliveria said.

During the hearings on the CPCN, everyone who wanted to was allowed to testify, Lorence said.

If people could not attend the hearings, they had many months to submit testimony through the PSC’s website or through letters sent by mail, he noted.

The PSC commissioners did not, however, allow the same testimony over and over again, Lorence said.

There is no evidence that a sound level below 45 dBA is necessary for any individual, Screnock said.

Highland Wind Farm petitioned to have the PSC open the case again to show that curtailing the turbines would work to bring the sound level below 40 dBA, he said.

The town board is challenging the six residences because the town board identified others or others were self-identified, Oliveria said.

The six residences are scattered throughout the project, and keeping the wind turbines below 40 dBA decreased the sound levels throughout the project area, Screnock said.

The six residences serve as a proxy for the entire project. Highland lowered the noise throughout the project, he said.

PSC 128 rules have determined that 45 dBA is appropriate for all, Lorence said.

The rehearing last summer was a technical hearing that was limited to whether Highland could comply with the noise limits, Lorence said.

The Forest Town Board wanted to change the issue on the reopened proceeding, Screnock said.

When Forest tried to litigate the case again, the administrative law judge said, “no,” Lorence noted.

The Forest Town Board identified six residences and said there were others. People had opportunities to testify and identify themselves as having pre-existing conditions. Did anyone say they wanted to keep their concerns confidential? Judge Vlack asked.

“No,” Oliveria replied.

Comprehensive plan

Another aspect of the Forest vs. PSC case is the Town of Forest’s Smart Growth comprehensive land use plan.

Under the state’s Smart Growth law, municipalities were required to have a comprehensive plan in place by January 1, 2010, in order to continue making land use decisions.

Prior to the wind turbine issue, the previous Forest Town Board followed state law in developing the Smart Growth plan.

The original comprehensive plan adopted in 2009 was developed after a series of public meetings, public visioning sessions and compiling surveys sent out to township residents.

The Smart Growth plan developed with public participation favored the development of wind energy in the Town of Forest.

A recall election in early 2011 replaced the entire town board.

The new Forest Town Board adopted an ordinance in November of 2013 that completely replaces the original Smart Growth Plan and removes all references to supporting the right to farm and removes references to supporting renewable forms of energy. The amended plan includes language that supports the development of residential subdivisions.

A notice of claim delivered to the Forest Town Board last December filed by a group called Preserving Rural Values Inc. says the Forest Town Board violated state law by failing to follow the public participation procedures for amending a comprehensive plan under Wisconsin Statute 66.1001(4)(a).

If wind turbines were a concern in the Town of Forest, why was that issue not addressed when the comprehensive plan was being developed the first time? Judge Vlack wondered.

Judge Vlack ended the four hours of oral arguments by saying that he would be willing to set up a conference call with the attorneys for clarification on various issues.