Wind application set for October public hearing By Anne Adams • Staff Writer
RICHMOND - Whether Highland County will be home to Virginia's first industrial-scale wind utility is far from decided, but the State Corporation Commission has scheduled a public hearing for testimony Oct. 30.
SCC hearing examiner on the case, Alexander Skirpan Jr., ruled Tuesday the application for the facility will not be dismissed, as requested by a group of Highland landowners, but that Highland New Wind Development must explain how it intends to meet Department of Environmental Quality recommendations, or why the company believes those recommendations should not be adopted by the SCC.
After the SCC staff reviewed Highland landowners' motion to dismiss the application, citizens bringing the request offered further support for their argument. In general, they say, the SCC simply does not have enough information to review Highland New Wind Development's application for a certificate to operate its proposed 39-megawatt wind utility.
The landowners and citizens involved as formal respondents in the case point to other state and federal agencies' recommendations for further study, coupled with their conclusions they cannot complete a thorough review without further information from the developer.
And HNWD, they assert, "has refused to perform recommended studies and … has asked the SCC to ignore the record and forge ahead with a fatally flawed case. No construction authority can issue (a permit) because no parameters can be set at this time which could protect the environment. This case should be dismissed now, with leave to HNWD to refile once the requisite studies have been performed," the group's attorney told the SCC.
"To proceed now would be to permit HNWD to ignore the substantive law of Virginia and the United States and have the SCC ignore the impact of the project on the environment."
SCC staff had said the motion to dismiss the application was premature since it was made before the Department of Environmental Quality completed its report on the matter.
Once DEQ's report was made, the citizens renewed their arguments for dismissal. "The DEQ report shows that this project can have severe environmental impacts … and the DEQ report is replete with instances in which HNWD has refused to provide sufficient information to environmental agencies for them to draw conclusions about the effect of the proposed facility on the environment."
Further, the citizens said, "the DEQ Report states even the most basic of questions concerning the site remain unanswered by HNWD: The following questions have yet to be answered to DGIF's satisfaction: How do birds and bats currently use the Highland Project site? What correlations are there between bird and bat use and site characteristics? What might the cumulative effects of this project be upon those resources, both temporal and additive?"
Arguing for dismissal, citizens say that "to forge ahead with the SCC proceedings in light of the absence of the necessary environmental information would strain the credibility of the process. Without basic information such as how birds and bats use the site, it is very difficult for respondents to submit substantive evidence on the environmental impact of the site and equally difficult for the SCC to make a reasoned decision regarding the application."
The citizens also argue that HNWD's refusal to provide requested information "is not an isolated instance of disagreement with one agency. HNWD's refusal is wide and deep. And, HNWD has indicated to DEQ that it ââ¬Ë... did not intend to provide any more information during this [DEQ] review.' HNWD's refusal to provide information has clearly impaired the DEQ's ability to give the commission adequate comments about the environmental impact of this proposed facility and that impairment will not be remedied at DEQ."
The citizens point out that according to the SCC's current schedule for the case, respondents now have 30 days to submit testimony "and HNWD has no scheduled filing obligations until its rebuttal testimony is due approximately 67 days after the DEQ report. That schedule, perhaps reasonable when it was established in March, is now made unreasonable by the unilateral refusal of HNWD to comply with the requests of the environmental agencies for additional information. HNWD's refusal to comply with DEQ information requirements can only undermine the DEQ's role in this proceeding and prejudice Highland Citizens' preparation of their case."
The citizens asked for a completely new schedule, in addition to a new application from the developer, and again urge the agency to dismiss the application.
Skirpan agreed a new scheduling order was warranted, but denied the motion to dismiss the application.
"On June 30, DEQ filed its report in which it listed six permits or approvals required by the project and provided 14 recommendations to the commission," Skirpan said in his ruling this week. "Highland citizens refer to the DEQ report and emphasize a number of the concerns expressed by some of the reporting agencies. Highland citizens pointed out that the procedural outline adopted in the ruling fails to provide (HNWD) an opportunity to respond to the DEQ report prior to rebuttal, well after Highland citizens and other respondents are required to submit their testimony.
"As for the second motion to dismiss," he continues, "the issues raised by Highland citizens are issues of fact as to the sufficiency of the information provided to DEQ and the sufficiency of the record that may be developed to assess the recommendations in the DEQ report. There will be adequate time to develop the record throughout the course of this proceeding. Thus, I find that the second motion to dismiss should be, and hereby is denied.
"In addition, I agree with both Highland citizens and (HNWD) that (HNWD) should be given an opportunity to respond to the DEQ Report. (HNWD) has the burden of proof that its proposed facility is not otherwise contrary to the public interest. Since entering into the Memorandum of Agreement with DEQ, the commission has relied upon DEQ's assessment of environmental matters considered by other governmental entities in assessing required permits and approvals. Moreover, the commission has also adopted many of the recommendations made by DEQ as conditions of its certificate," Skirpan said. "Consequently, I find that the procedural schedule should be adjusted to provide (HNWD) with the opportunity to file testimony, exhibits, or legal memorandum responding to each recommendation found in the DEQ Report. Such a response should describe the method by which (HNWD) will satisfy the recommendation made by DEQ, or explain why the recommendation should not be adopted by the Commission."
Skirpan set the following schedule and deadlines for HNWD and respondents in the case:
n Aug. 4 - HNWD must file supplemental testimony and exhibits in response to DEQ's report.
n Sept. 1 - Respondents must file their testimony and exhibits.
n Oct. 2 - SCC staff must file its testimony and exhibits.
n Oct. 12 - HNWD must file all testimony it expects to introduce in rebuttal.
n Oct. 30 - Public hearing set for 10 a.m. in the SCC offices in Richmond.
Editor's note/correction: Last week's story on the motion to dismiss the SCC's wind application referred to the agency having made its decision not to grant the motion. It was the SCC staff, not the hearing examiner, that stated the motion should be dismissed without prejudice. The hearing examiner had not made a final determination on the motion at the time the report was published.
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