By LeAnn R. Ralph
MADISON — The Public Service Commission of Wisconsin has reportedly modified the decision granting a permit to Highland Wind Farm, allowing the company to move forward with building wind turbines in the Town of Forest.
In response to a St. Croix County circuit court judge’s decision last summer to remand portions of the PSC’s decision to grant a permit back to the PSC for further consideration, PSC commissioners voted last Thursday (July 7) to remove Highland Wind Farm’s voluntary lower noise limits for “sensitive” residents and to remove the requirement that the turbines be in compliance with PSC 128 for 95 percent of the time, according to news reports.
The Forest Town Board, along with the citizens’ group the Forest Voice, asked for a judicial review of the PSC’s decision to issue a Certificate of Public Convenience and Necessity for the Highland Wind Farm project to construct a 102.5 megawatt electric generation facility in the Town of Forest.
Highland Wind Farm’s application was the first wind turbine permit to be considered under the new wind siting rules of Wisconsin Administrative Code Chapter PSC 128, which became effective March 1, 2011.
Highland Wind Farm’s proposed project also is the only current proposed wind turbine project in the state.
For the first time in Wisconsin, PSC 128 set maximum noise limits for wind farms, with a nighttime noise limit of 45 decibels and a daytime limit of 50 decibels.
The PSC initially denied a permit for Highland in March of 2013 because the wind turbine project would not meet the noise limits identified in PSC 128.
In April of 2013, Highland requested that the PSC reopen the proceedings so that Highland could present a curtailment plan that would show the wind turbines could meet the noise limits.
Highland’s curtailment plan included a proposal to limit nighttime sound to 40 decibels at six residences identified as having potentially sensitive individuals.
In May of 2013, the PSC approved reopening the proceeding, and in October of 2013, the PSC granted a permit to Highland.
The PSC reopened the proceedings on Highland’s permit in 2013 for the limited purpose of determining if the project could comply with the noise standards in PSC 128.
In the final decision on the permit, the PSC indicated that Highland would have to comply with the noise limits 95 percent of the time.
According to Judge Edward Vlack’s 118 page decision issued in August of 2015, the PSC’s published hearing notice did not give any indication that a percentage compliance standard would be considered.
Judge Vlack’s decision set aside the PSC’s adoption of a 95 percent compliance standard and remanded the issue back to the PSC for the purpose of providing a proper notice and a hearing on the issue of adopting a percentage compliance standard.
According to the PSC’s order to re-open the Highland Wind Farm permit in March of this year in response to Judge Vlack’s decision, the PSC stated the intention to remove the 95 percent compliance standard and to address any complaints of noise above 50 decibels during the day and 45 decibels at night at the time the turbines are alleged to not be in compliance.
Without the 95 percent of the time compliance standard, Highland Wind Farm will be required to be in compliance with PSC 128 for 100 percent of the time.
Regarding the curtailment plan Highland submitted to the PSC to make sure the wind turbines stay within the noise limits set by PSC 128, Judge Vlack wrote, “This Court concludes that while there are differences of opinion on this issue, there is substantial evidence in the record for the Commission to conclude that Highland’s curtailment plan ensured compliance … the Town may not like the conclusion that was reached, but the conclusion the Commission reached was clearly supported by substantial evidence in the record.”
With the 95 percent compliance standard removed, the permit issued by the PSC will still require Highland to comply with noise monitoring and reporting.
The PSC will require Highland to do continuous sound measurements at two different locations with immediate reprogramming of the turbines if they exceed the decibel limits.
Highland also will be required to have two roving measurement devices that can be moved to different locations to respond to landowner complaints.
Highland Wind Farm voluntarily agreed to a lower noise limit of 40 decibels for six residents that were self-identified as having health conditions that could be affected by noise.
The 40 decibels compares to the 45 decibel nighttime noise limit required by PSC 128.
The Forest Town Board argued that the six sensitive residences were identified by PSC staff and the PSC accepted Highland’s proposal to accommodate these six sensitive residences without a full hearing.
Judge Vlack wrote in his decision, “this Court concludes that the parties were given ample opportunity to present evidence of residents who may have been sensitive to noise and/or shadow flicker.”
Judge Vlack went on to say, “There may be very good reasons already in the record for designating these six residences, but how can this Court begin to conceive of a rational basis, when this Court is not even fully aware of what the circumstances are for the six residents that were chosen.”
Judge Vlack remanded the issue to the PSC “solely for the purpose of allowing the parties to state why other sensitive residences, already identified, should be considered, and the Commission can then decide if others, already identified, should be included with the original six residences.”
Judge Vlack said that the remand was “not for further evidentiary hearing on other residents who may be sensitive to noise or shadow flicker.”
The judge also noted that the PSC was not required to order any accommodations for the 17 residences.
The PSC provided a 30-day comment period on the re-opening of the Highland permit and accepted comments through the PSC’s website and by regular mail,
According to news reports, representatives for Highland Wind Farm say that construction on the project could begin later this year.
The written decision from the Public Service Commission of Wisconsin pertaining to the proceedings on July 7 is not yet available.
When the written decision does become available, the Tribune Press Reporter will publish an article focusing on the PSC’s decision.