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Utility application lacking, state says
BY ANNE ADAMS • STAFF WRITER
CHARLESTON, W.Va. - The 50-megawatt wind energy utility proposed for Jack Mountain was denied a state citing certificate primarily because key issues related to the project were not adequately addressed, according to West Virginia's Public Service Commission.
Liberty Gap LLC, a subsidiary of Delaware-based U.S. Wind Force LLC, first filed an application for a state permit in 2004, but then failed to publish a standard public notice about its application in Pendleton County. It subsequently asked to withdraw that application, and then reapplied in December 2005.
The developer proposed to erect up to 50 wind turbine towers generating up to 125 megawatts, plus auxiliary facilities and a 138-kilovolt transmission line to connect the towers to the Allegheny Power electric system. The line would have traversed about 17 miles, from a substation north of Franklin to the end of the turbine array at the county line abutting Highland, Va., near Doe Hill.
The towers would have stretched about seven miles along the ridge of Jack Mountain at a cost of between $175 million-$190 million.
Last June, FOBPC and Liberty Gap were arguing about access to the project site. FOBPC filed a motion to allow its consultants access to the project area to conduct a hydrology/ geology study, and said Liberty Gap refused.
Liberty Gap argued that Allegheny Wood Products, Inc. owns the project site and had concerns about liability, lease violation, and cost regarding access to the site. PSC staff supported FOBPC's right to conduct a field visit at the site and asserted that Liberty Gap had caused unnecessary delay. The Commission, ultimately required Liberty Gap to allow FOBPC access.
By the end of July last year, the commission decided Liberty Gap's application should be dismissed without prejudice "because Liberty Gap had submitted a patently unreasonable draft release to FOBPC, effectively denying FOBPC the opportunity to access the project area, and thereby effectively eliminating the possibility of meaningful litigation of the issues in this case."
Sept. 1, 2006, the PSC reinstated the application process on several conditions, including that the statutory deadline for the PSC's decision be extended to June 22, 2007.
Hearings were held last December, followed by numerous briefs and responses, and then continued to evidentiary hearings in April this year.
The evidence
The commissioners noted that the record in this case, built over the course of 17 months of filings, and "substantive 'warfare,' consists of eight transcripts of protest hearings and evidentiary hearings (all of which total nearly 1,370 pages), 70-plus pre-filed direct, rebuttal, and other testimonies and exhibits of nearly 35 witnesses who appeared at those hearings, approximately 30 studies, reports or other efforts of numerous experts and others interested in particular issues."
Commissioners said, "This case has been marked by fits and starts with respect to the nature and content of the application and the development of the evidence, and by vigorous (and sometimes rancorous) disputes among the parties as to the timing and requirements for satisfying the Siting Rules."
Further, they said, "While there is room for argument about the nature, quality and adequacy of the testimony offered at the hearing, the commission believes that, based on the testimony and exhibits ... there is adequate evidence in the record to support Liberty Gap's application on the issues of the general information about Liberty Gap and the project; the state and regional need for the project; the economic and work force impact of the project; the impact on wildlife, other than birds and bats; the impact on property values and tourism; and the impact on hydrology."
Nevertheless, the PSC stated, "the commission must conclude to refuse to grant the Application.
Despite Liberty Gap's efforts to amend its application to satisfy the PSC's siting rules, the commissioners refused to approve a certificate because it found:
• Liberty Gap did not submit a complete application; and
• Did not satisfy its evidentiary burden on several key issues the commission must analyze and balance.
Deficiencies - The map
The PSC said Liberty Gap's application failed to meet requirements because:
• Its five-mile map was inadequate. "Liberty Gap virtually ignored the requirements of Siting Rule 3.1 regarding the initial five-mile map," the PSC said. The map requires the developer to list certain items within that radius of the project site.
"The five-mile map is core to the information for the commission and others about the structures, entities, popu lation centers and public and private assets that will or might be affected by the project," the commissioners said.
"Other than providing a map showing the boundaries of national forests and wildlife management areas, the fivemile map did not designate existing land uses; public or private recreation hunting, fishing or similar areas; and parks, historic areas or places, or archaeological places- all as required."
Liberty Gap eventually presented a revised map 12 months after filing the application, but the commission said, "This is not a situation where a few incidental items were overlooked in preparing the map. That might be understandable. This particular map and the process used to develop it were fundamentally flawed, and the five-mile map falls significantly short of meeting the requirements of the Siting Rules. Furthermore, Liberty Gap's pre-filed direct testimony provides no further insight into matters intended to be illustrated on the map. As a consequence, Liberty Gap did not timely provide the public with a complete application to review in order to understand the nature of the project and its impact on the community. The five-mile map is not a minor part of the filing; it is central to any understanding of the scope of the project at the outset of the review of the application."
No cultural study
The PSC also found Liberty Gap had failed to provide information on the cultural impact of its project, which should have included an assessment of effects on:
• Landmarks - The "preservation and continued meaningfulness of any historic, scenic, religious or archaeological areas or places." Nor did it describe any plans to mitigate adverse impacts, or do the same for recreation areas.
"Other than noting the location of churches, Liberty Gap did not provide any information regarding the cultural impact of the project or any potential impacts on any cultural resources located within a five-mile radius of the project," the commission said.
"Liberty Gap failed to provide minimal information on an issue that should have been addressed at the outset of this case and has not provided the public with sufficient information to review and understand the nature of the project and its potential impact on the community around Jack Mountain."
Viewshed analysis
The PSC also said the company's viewshed impact evidence was inadequate, noting siting rules require an applicant to provide renderings from "all scenic overlooks and project views that will be most evident to the public, and which are accessible to the applicant, from which the generating facility will be visible after construction."
The state of West Virginia, the PSC said, "has become a popular location for the proposed installation of wind turbine projects. Unfortunately, unlike in some other areas in this country and other countries where wind projects can be placed in obscure and not particularly visible or attractive locations, the windswept tops of this state's highest ridges provide the only reasonably good and reliable source for wind to power turbines to produce electricity in this state.
"At the same time, because these wind turbines are extremely large, are generally constructed in arrays, and are located on our mountain tops within the state, they tend to be highly visible, even when planned for relatively remote and unpopulated areas of the state. As a consequence, the likely visibility of these projects (and the strong feelings and emotions this generates among the proponents and opponents of these projects) was a primary concern of the commission in promulgating the siting rules."
Commissioners said, however, they are "not making a qualitative assessment of the impact or nature of these views on the public, nor is the commission holding that any view of a wind turbine from any public site makes that site, per se, inappropriate for a wind power project" at this time.
"The commission will make the decision of public view impact on a case-by-case basis."
Inability to balance "In view of the deficiencies in the initial application and pre-filed direct testimony and the commission's concern with the quality of that application under the siting rules, the commission could choose to end its analysis of this case at this point and refuse to grant the application solely for the reason that the application is inadequate," the report stated. "However, having presided over five days of hearing and reviewed more than 70 exhibits, and 14 post-hearing briefs, the commission is moved to note that, even after the attempts Liberty Gap made to strengthen its case following other parties' motions to dismiss filed early on in this proceeding, Liberty Gap did not meet its burden of proof on cultural issues.
"Nor does the commission believe that Liberty Gap carried its burden of proof with respect to evidence about possible noise impact and intrusion from the project. The lack of adequate evidence on the significant issues of noise and cultural impact (coupled with our continuing concern about endangered bat species discussed below) eliminates the commission's ability to 'balance the interests' in this case."
Endangered species
Though the commission said it was "disturbed" by directly conflicting evidence about the potential impact on endangered species of bats, "it believes that Liberty Gap has met the burden of the preponderance of the evidence, Nevertheless, the commission is very concerned about the position of the U.S. Fish and Wildlife Service" and noted there was no resolution on the issue entered into the record.
The commission was satisfied with a number of things in Liberty Gap's application, including:
• General information about the project. "As of the date of the evidentiary hearing, Liberty Gap estimated that it had spent over $2,500,000 ... Additionally, Liberty Gap has entered into a power purchase agreement, which identifies a purchaser for the power generated by Liberty Gap at a guaranteed price," the PSC noted.
• The need for the project on the grid. "While Liberty Gap does not assert that the project would address a need for additional generation capacity to serve customers within West Virginia, it has presented evidence that the East Central Area Reliability Region has a need for additional generation," the PSC concluded.
• Substantial and positive economic and work force impact - The evidence, the PSC said, "indicated that the Project's economic impact would be positive," and the utility would employ up to 200 people during construction, and 6- 12 for operation.
• No serious risk to wildlife, other than birds and bats.
• No adverse impact of turbines on the value of surrounding property or on tourism. "There continues to be a significant and real dispute among the parties about the impact of wind turbine projects on the value of surrounding property and the possible adverse impact of wind turbines on tourism," the PSC said. "Unfortunately, the record that wind turbines have an adverse impact on property value and tourism is both inconclusive and unpersuasive."
PSC warns other
developers
The commission has processed several applications under its siting rules, it said, and is "concerned about the apparent inability (or unwillingness) of applicants to comply with provisions of those siting rules. In light of that, the commission finds it appropriate to provide future applicants and parties to siting certificate proceedings with additional guidance as to the application process and the weight the commission will accord to evidence that may be presented in future cases," it said.
"The commission has put a great deal of effort into developing the siting rules ... the commission urges future applicants not to treat lightly the application requirements. Applicants need to understand that the Siting Rules are in place to give the commission, the public and other stakeholders a fair assessment of the project in order to determine whether to oppose or support those projects. There is frequently a rush to get these applications 'in the commission hopper.' The commission urges caution.
"While subsequent testimony can certainly amplify and shape the process, the application is extremely important, and the application, and accompanying testimony, should comply with the requirements."
Furthermore, commissioners said, "Another area of significant concern for the commission in these proceedings is the amount and quality of evidence adduced at the hearing. Although the Commission is not bound by the Rules of Evidence, per se, the commission is troubled by the proliferation of testimony in these siting proceedings that is marginally relevant and, in some instances, unfair. The commission is sympathetic to the cost of preparing testimony and retaining witnesses to sponsor that testimony and is also somewhat sympathetic to the procedural challenges facing pro se intervenors. By the same token, the commission is extremely concerned by the large amount of testimony and exhibits that have been proffered as 'evidence' in these proceedings that has little or no probative value.
"The commission accords little weight to references to unsupported or unsponsored studies, reports on unrelated projects from other jurisdictions, newspaper articles, or references to third-person hearsay evidence, and in future proceedings will be requiring parties to more strictly adhere to basic fairness in submitting testimony and exhibits."
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