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Ohio Supreme Court hears Champaign County wind farm case

The Ohio Supreme Court heard arguments Wednesday morning over whether the second phase of a controversial wind farm in Champaign County should be allowed to move forward.

Opponents and the project’s developers debated several issues, including how the wind farm would be decommissioned, whether the project’s setbacks are adequate, and whether the Ohio Power Siting Board followed proper procedures when permitting the case to move ahead. It was the second time in three years the state justices heard oral arguments concerning the wind farm, which has been the focus of a dispute among residents since at least 2008.

Project developers and attorneys for the state said the justices should affirm the OPSB’s decision to approve the project, arguing the court heard essentially the same arguments in 2012. But Jane Napier, assistant Champaign County prosecutor, argued the siting board members gave too much leeway to the developers during the application process.

“These public entities are not categorically opposed to this project, but we want to ensure that the project is vetted completely,” Napier said.

Attorneys for Everpower, the company in charge of the project, argued the siting board set more than 70 conditions before the project could move forward. For the second phase, that includes a stipulation that the OPSB has the authority to decommission any individual turbine that could create a safety or environmental concern, said Michael Settineri, an attorney representing the company.

Justices questioned both sides about several issues, but much of the discussion focused on whether the project’s setbacks are adequate. The project was one of the first in the state when it was proposed, with requirements that turbines be set back at least 919 feet from an occupied structure, Napier said.

State legislators have since required tougher setbacks that have been a point of contention for Everpower and other wind developers, who have argued the newer requirements are unnecessary and make it difficult to develop new projects in Ohio.

Justices questioned an incident at the Timber Road II wind farm in Northwest Ohio in 2012 in which one of the turbines suffered damage, and debris from the blade flew into neighboring fields. No one was injured in that accident.

But the OPSB investigated the case, and allowed both sides to provide evidence on the issue, said Werner Margard, an attorney representing the board. The Champaign County project has at least three separate stations that will monitor the wind farm to ensure the turbines are shut down to prevent a similar incident, Settineri said.

“This application was approved under the existing rules that applied to setbacks,” Settineri said.

Another dispute in the case was whether the siting board granted both sides equal opportunity to present evidence and testimony regarding the project. The OPSB refused to allow Union Neighbors United to subpoena evidence regarding the debris in the Timber Road incident, for example, said Jack Van Kley, an attorney representing the group of residents opposed to the project.

And the board refused to allow UNU to present a database that recorded accidents worldwide at existing wind farms, Van Kley said, while allowing Everpower to present similar evidence that benefited the developers.

“There were a whole host of other instances in which they employed a double standard against us,” Van Kley said.

But Margard argued UNU’s database was not credible, in part because the database was collected from various sources that couldn’t be verified.

“It is essentially high-tech hearsay,” Margard said.

The justices narrowly affirmed the OPSB’s decision to approve the first phase of the project in 2012.

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