PSC issues final decision on remand from St. Croix County judge for Highland Wind Farm
By LeAnn R. Ralph
MADISON — The Public Service Commission of Wisconsin has issued the final decision on a St. Croix County judge’s remand for a permit allowing Highland Wind Farm to build wind turbines in the Town of Forest.
The 57-page written decision, dated August 11, clears the way for Highland Wind Farm to construct a 102.5 megawatt wind electric generation facility in the Towns of Forest and Cylon.
The PSC’s final decision is in response to a St. Croix County Circuit Court judge’s decision last summer to remand portions of the permit back to the PSC for further consideration.
PSC commissioners voted on 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.
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.
St. Croix County Circuit Court Judge Edward Vlack issued an order on August 27, 2015, upholding the PSC’s decision to issue a permit to Highland Wind Farm but remanded two specific issues for the PSC to reconsider: the 95 percent compliance standard and the lower noise limits for sensitive residents.
Judge Vlack did not send the permit back to the PSC to decide again whether Highland Wind Farm should be allowed to build wind turbines in the Town of Forest.
The PSC concluded in the August 11 decision that it is reasonable to expect Highland Wind Farm to comply with noise limits set by PSC 128 but that it is not reasonable to expect Highland Wind Farm to comply with a noise limit lower than the limit established by PSC 128.
The PSC also concluded that it not reasonable to set a 95 percent compliance standard, but that it is reasonable to use the complaint process established in PSC 128 if there are complaints that Highland Wind Farm is not complying with the noise limits set in PSC 128.
Judicial review
The Forest Town Board requested a judicial review of the PSC’s decision to issue a permit to Highland Wind Farm on January 10, 2014.
The Forest Town Board challenged the PSC’s determination that the Highland Wind Farm project could comply with the noise limits in Wisconsin Administrative Code PSC 128 using a curtailment plan and also challenged the 95 percent compliance standard and the PSC’s acceptance of Highland’s voluntary agreement to provide a lower nighttime noise limit of 40 decibels for six residences described as “sensitive.”
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 his August of 2015 decision, Judge Vlack affirmed the PSC’s decision that Highland Wind Farm’s use of the curtailment plan would comply with the noise limits set 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.
The “sensitive residences” are described as “nonparticipating” which means those properties would not be the site of any wind turbines.
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 if Highland complied with the noise limits in PSC 128 95 percent of the time, the wind farm would be considered to be in compliance.
Scientific evidence
In addition to the 95 percent compliance standard and the issue of Highland’s proposal to comply with a lower noise limit for six residences, the PSC also reopened the record to take official notice of two governmental reports required by state law of peer-reviewed studies.
The first report was the Wisconsin Wind Siting Council Wind Turbine Siting Health Review and Wind Siting Policy Update (2014 Review).
The second report was the Review of Studies and Literature Relating to Wind Turbines and Human Health (2015 Review).
The PSC’s final decision on issuing the permit for Highland Wind Farm in October of 2013 was completed before either of the reports was available regarding peer-reviewed scientific literature related to the siting of wind turbines and human health.
Annoying
The 2014 Review covers new scientific literature published from 2011 to 2014 and identified 40 peer-reviewed publications on wind-health issues and three governmental reports.
The 2014 Review concludes that “some individuals residing in close proximity to wind turbines perceive audible noise and find it annoying.”
The review also concludes, “a small subset of these individuals report that this noise negatively affects their sleep and results in other negative health effects.”
However, “it appears that this group is in the minority and that most individuals do not experience annoyance, stress or perceived adverse health effects due to the operation of wind turbines,” according to the 2014 Review.
The 2014 Review goes on to state, “this conclusion is especially true if wind turbine siting is used to limit high noise exposure.”
The Wind Siting Council set the decibels limits in PSC 128 to limit noise exposure to nearby residents.
Still annoying
Wisconsin Act 55, which became law in 2015, required the PSC to “conduct a review of studies conducted to ascertain the health effects of industrial wind turbines on persons residing near the turbine installations.”
The 2015 Review, issued in December of 2015, concluded that the research literature on the health effects of wind turbines “continues to show trends similar to those identified in the 2014 WSC [Wind Siting Council] report.”
The 2015 Review concludes, “the studies have found an association between exposure to wind turbine noise and annoyance for some residents near wind energy systems.”
According to the 2015 Review, some studies show that wind turbines cause annoyance, while other studies provide limited and conflicting evidence that shows wind turbines cause sleep disturbance.
“There is a lack of evidence to support other hypotheses regarding human health effects caused by wind energy systems,” according to the 2015 Review.
Objection
The Forest Voice, a group of concerned citizens in the Town of Forest, objected to the PSC taking official notice of the 2014 and 2015 reviews without an evidentiary hearing.
According to the PSC’s final decision, accepting evidence into the PSC’s record is presumed if the evidence meets the standard of Wisconsin Statute 227.45(1) and no hearing is necessary to accept the documents of which the PSC is taking official notice.
Under Wisconsin Statute 196.02(7) “the commission may initiate, investigate and order a hearing at its discretion upon such notice as it deems proper.”
The PSC concluded that a hearing is not required to accept officially noticed material into the record and that through the comment period, all parties and interested people “were provided due notice and full and fair opportunity to present countervailing evidence.”
In addition to the 2014 Review and the 2015 Review, the PSC accepted for the record most of the studies presented by the parties and by the public.
Studies
The Forest Voice and Highland Wind Farm did not provide any studies as part of their comments.
Clean Wisconsin provided ten studies from peer-reviewed journals, and the Forest Town Board provided two studies published in peer-reviewed journals and one from a magazine on acoustics.
Six of the studies provided by Clean Wisconsin are from Health Canada’s Community Noise and Health Study.
The six studies “generally support the finding that no evidence was found to support a link between exposure to wind turbine noise and self-reported illnesses, chronic conditions, stress or sleep quality, while an association was found between increasing levels of wind turbine noise and the number of individuals reporting to be very or extremely annoyed.”
The Forest Town Board provided three documents that discuss theories about the ways wind turbines could affect human health.
One of the articles from the Forest Town Board is “an older journal article [from 2008] that discusses the risk of photosensitive epilepsy seizures from shadow flicker, generally considered to be more of a risk with small turbines and not of the size approved for this project.”
The other two articles “do not show direct evidence of health effects from wind turbine noise but show hypothetical ways of how inaudible noise could still possibly affect human health for those with conditions that affect the inner ear.”
The PSC’s final decision notes, “In assessing the weight and credibility of the evidence, the Commission may properly give more weight to peer-reviewed studies if it finds those studies more reliable and credible The issue of whether a particular study is peer-reviewed goes toward the weight assigned, not the admissibility.”
The PSC accepted into the record the Forest Town Board’s articles that discussed theories of how wind turbines might affect human health but gave more weight to studies that went beyond theory and presented scientific evidence.
Comments
The PSC provided a 30-day comment period for members of the public, the Forest Voice, the Forest Town Board, Highland Wind Farm and other interested parties to submit comments through the PSC’s website or by United States mail.
The PSC reopened the Highland Wind Farm permit to address the two specific issues remanded by Judge Vlack, and comments “not relevant to those two issues are properly excluded from the record.”
More than 130 comments were received from the public.
“Certain comments from both within and outside the project area merely express support for or opposition to wind farms in general,” according to the PSC’s final decision.
“These comments do not provide additional information that could assist the Commission in reaching a decision on the two specific remanded issues [adoption of a 95 percent compliance standard and the lower noise limits for self-identified sensitive residences] and are therefore not relevant.”
The PSC’s final decision goes on to say, “This proceeding was not reopened to evaluate the merits of wind farms in general; it was reopened to address only the two specific remanded issues. Thus, comments only expressing support for or opposition to wind farms in general are properly excluded from the record.”
Curtailment
Judge Vlack upheld the PSC’s determination that Highland Wind Farm’s curtailment plan would ensure that the wind turbines in the Town of Forest will comply with the noise standards in PSC 128 of 50 decibels during the day and 45 decibels at night.
“The [Forest Town Board] may not like the conclusion that was reached, but the conclusion the Commission reached was clearly supported by substantial evidence in the record,” Judge Vlack wrote.
The Forest Town Board “did not appeal this determination. Thus the curtailment plan is not an issue in this proceeding, and the Commission rejects [the Forest Town Board’s] and Forest Voice’s belated and improper attempt to re-litigate that issue as part of these limited reopened proceedings on remand,” according to the PSC’s final decision.
95 percent removed
The Forest Town Board and the Forest Voice continued to argue that Highland Wind Farm cannot comply with the noise standards in PSC 128.
The PSC’s final decision states, “However, this argument related to the ability of the curtailment plan to ensure compliance and, as this issue was already upheld by the circuit court, is not an issue in this proceeding.”
“If a circumstance does arise where the noise from the turbine results in an excursion above stated audible noise limits, Highland would be required by the Commission’s Final Decision on Reopening to immediately institute curtailment by reprogramming the turbine to ensure it does not exceed the applicable noise limits,” the PSC wrote.
The Forest Town Board’s argument is that Highland Wind Farm is certain to have noise violations.
“The Commission finds [the Forest Town Board’s] arguments unpersuasive. A pre-established standard for judging future non-compliance with the audible noise requirements is not required for approval of the project. The [Forest Town Board’s] argument rests on the proposition that noise violations will occur. However, as the project is not constructed, it is impossible to know if the situation envisioned by [the town board] will even occur, and the Commission already found the curtailment plan ensures compliance with the noise limits — a finding that was upheld on judicial review [by Judge Vlack].”
Complaint process
The Forest Voice raised concerns about the complaint process included in PSC 128.
The complaint process outlined in PSC 128 allows a person to make a complaint, requires the wind energy system owner to resolve the complaint, and contains a defined appeal process for the review of complaints not resolved within 45 days.
The Forest Voice asserted “multiple individuals living near other existing wind farms in Wisconsin testified that they were never able to satisfactorily resolve complaints through the Commission’s process.”
The PSC’s final decision points out the Forest Voice failed to note that PSC 128 became effective March 1, 2011, and that the most recent wind farm approved by the PSC was the Glacier Hills Wind Park in Columbia County with a final decision dated January 22, 2010.
“This argument is misplaced as there are no other wind farms in Wisconsin, other than [Highland Wind Farm], approved by the Commission to which the complaint process in Wis. Admin Code PSC 128.40 is applicable.”
PSC 128 apparently does not make the complaint process retroactive to existing wind farms, so there are no wind farms in operation today covered by the complaint process outlined in PSC 128.
“Sensitive” residences
Upon judicial review, Judge Vlack concluded “this Court is fully aware that no accommodation needed to be ordered by the Commission for any of the 17 identified residences.”
The PSC did, however, accept Highland’s proposed lower noise limits for six residences, and Judge Vlack concluded that the PSC had failed to hold a hearing on the selection of the residences and that there was a substantial lack of evidence in the record as to how those residences were chosen.
Judge Vlack remanded the issue back to the PSC with directions to either state why, based on the existing record, that those six were chosen and the other 11 were not — or to reopen the docket for the sole purpose of allowing the parties to say why other residences should be chosen, and then the PSC could decide if the other identified residences should be considered with the six residences already selected.
The PSC concluded it is “unclear how the Commission could continue to require Highland to extend the lower noise levels to the six or extend it to others without substantial evidence to support the lower noise limit.”
Health surveys
The PSC reopened the docket to obtain more evidence, and the Forest Town Board provided updated health surveys and statements from “potential ‘sensitive’ residences describing the existing health issues that residents believed may be aggravated by the wind turbines” and “medical conditions residents believed are caused by wind turbines.”
According to the PSC’s final decision, the surveys and statements listed a “myriad of health conditions” that included mental health issues, hypersensitivity to sound, sleep disturbances and disorders, migraine headaches, heart conditions, vision problems, high blood pressure, dizziness, ear pain, stress, autism, Attention Deficit Hyperactivity Disorder, epilepsy, leukemia, Parkinson’s disease, arthritis, heart attacks, asthma, anxiety and depression.
The Forest Town Board asked the PSC to expand the 40 decibel nighttime limit to all of the identified residences as well as a newly-identified residence adjacent to a previously identified residence.
The Forest Voice urged the PSC “to give full weight to the real-life experiences of members of the public who live near wind turbines” and “argued that so called ‘anecdotal’ evidence should not be ignored.”
The Forest Voice also argued that the standard of a reasonable degree of scientific certainty was incorrect and the proper standard is whether the project will have an “undue adverse impact on other environmental values, such as, but not limited to public health and welfare.”
In addition, the Forest Voice argued that the PSC “violated” the circuit court order by reopening the matter to “take official notice of the two reports and to consider whether lower noise limits should be extended to any or all already identified ‘sensitive’ residences.”
Furthermore, the Forest Voice said “removing the lower nighttime standard for the six residences would ‘smack of retaliation.’”
No evidence
Clean Wisconsin argued “there is no basis for ordering a lower noise limit for potentially ‘sensitive’ residences as there is no evidence that wind turbines cause or exacerbate health problems,” according to the PSC’s final decision.
Comments from Clean Wisconsin pointed out that it is not clear “what makes a resident ‘sensitive’ to wind turbine noise. The term is not defined by the Commission ‘s Final Decision on Reopening or evidence in the record.”
The PSC’s decision states, “The 2014 Review and the 2015 Review and the additional evidence received generally support the [PSC’s] prior conclusions that the noise limits in [PSC 128] are ‘protective of public health and welfare’ and ‘the Commission is not convinced that a causal link between audible and inaudible noise at wind-generating facilities and human health risks has been established to a reasonable degree of scientific certainty.’”
The PSC goes on to say, “the additional evidence received during these reopened proceedings on remand confirms that there is not substantial evidence to support a causal link between the alleged health conditions and wind turbine noise.”
In addition, “the Commission finds the claims of retaliation by the Forest Voice to be unfounded. The circuit court and Wis. Stat. 227.57(6) require that the Commission’s findings of fact be based on substantial evidence in the record. Substantial evidence supports the Commission’s findings on this issue. Ensuring that the same noise limit specified in Wis. Admin. Code PSC 128.14(3) is equally applied to all nonparticipating residences is reasonable.”
Due process
The Forest Town Board requested that the PSC hold a hearing on the issues remanded by Judge Vlack.
The Forest Voice argued that not holding a hearing would violate Judge Vlack’s decision and order.
The PSC contends that neither the town board nor the Forest Voice “fully developed any legal argument to support their assertions to a right to a hearing.”
The Forest Voice mentioned Wisconsin Statute 227.42 as a reason why the PSC was required to hold a hearing.
But 227.42 states, “this section does not apply … to actions where hearings at the discretion of the agency are expressly authorized by law.”
The Wisconsin Supreme Court has previously applied the restriction in 227.42 for a hearing before the PSC, and the Supreme Court “held that whether to hold a hearing is a decision ‘for the sound discretion of the agency involved,’” according to the PSC’s final decision.
Both a previous Wisconsin Circuit Court decision not related to Highland Wind Farm and a Wisconsin Court of Appeals decision also held “that parties ‘are not automatically entitled to a hearing when hearings at the discretion of the agency are expressly authorized by law,’” and “if an agency has discretion to hold a hearing, it precludes a person’s right to demand one under Wis. Stat. 227.42.’”
The PSC concludes, “in any matter within the Commission’s jurisdiction where a hearing is not specifically required by statute, ‘the commission may initiate, investigate, and order a hearing at its discretion upon such notice as it deems proper.’ Wis. Stat 196.02(7) (emphasis added). Thus, unless a hearing is specifically required by statute, the decision of whether to hold a hearing is expressly at the Commission’s discretion.”
The PSC reopened the proceeding as the result of Judge Vlack’s remand under Wisconsin Statute 196.39, which states, “the commission at any time, upon notice to the public utility and after opportunity to be heard, may rescind, alter or amend any order fixing rates, tolls, charges or schedules, or any other order made by the commission, and may reopen any case following the issuance of an order in the case, for any reason … any order rescinding, altering, amending or reopening a prior order shall have the same effect as an original order.”
In this particular case, “the opportunity to be heard” was a 30-day comment period set by the PSC allowing comments to be submitted via the PSC’s website or by United States Mail.
