Resource Documents: Law (59 items)
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Author: Thompson, Gene
[Editor’s note: The doctrine of correlative rights limits use of a common groundwater source to a share in proportion to the landowner’s property above it. Many states apply the doctrine to oil and gas fields as well. Gene Thompson argues here that it should also be applied to the extraction of wind power.]
Producing energy for everyday use has been a necessity for a long time. Oil Exploration and Production companies (E&Ps) have been at it for over 150 years. Wind farm companies have been at it for around 20 years. There are some regulations and laws still in the making that will guide both industries as they become more sophisticated and thus more productive. However, as of today, there is at least one big difference in the way the that the two industries operate. Unlike the wind industry, the oil companies are mandated to follow the doctrine of correlative rights. The wind companies are not.
The process of building a large oil drilling unit is very different than building a wind farm. When the oil company begins, they must gather leases, analyze plat maps, and then determine the best chances of finding a group of adjoining properties with a high percentage of neighbors that want to be part of the drilling unit. Before production can begin, the unit will need to contain 100% leased land. If not, the E&P must either reshape, relocate the unit boundaries or attempt to negotiate with any remaining unleased landowners. Sometimes it doesn’t work out and the holdouts are left outside the production zone. Essentially, the E&P sand the government legislators have both come to realize that not everyone wants to participate in a large-scale unitized drilling unit. When 50 to 100 landowners are asked to come together and cooperate with the development of a unit, it is inevitable that some landowners will hold out for varying reasons. More money, environmental concerns, and loss of peaceable enjoyment of the land are a few of the reasons. However, there are some instances where unleased, yet essential, land can be force pooled. That is a process wherein a landowner is forced to accept their just and equitable share of production. Additionally, prior to any force pooling, the holdout will have many opportunities to lease with competitors. This drives competition and is a win for the landowner. Ultimately, the State and E&P reserve the option to utilize rules of capture (correlative rights) and force pooling to bring the unit to completion. All states recognize that capturing our natural resources is for the greater good and is essential. Our laws consider it unfair for one unwilling landowner to have control over natural resource production that will ultimately benefit our society. And so, the majority claims correlative rights. Conversely, 95% of wind farm owners have zero correlative rights. Additionally, wind farm residents have no force pooling rules.
With that in mind, it is important to note that If the residents of a proposed area of development are heavily divided on oil production, the towel gets thrown in early on and the oil company keeps looking for clusters of landowners that want to participate. Lands that are chosen for development must pass EPA surveys and observe established rules for the industry. As a unit nears completion, the correlative rights doctrine comes into play as a tool to guarantee the rights of the majority. Generally, when landowners become informed of their rights and the value of their resources, development gets much easier. Better informed people are more willing to sign leases and participate in the production of oil. That is yet another difference between wind and oil production. Although similar, both industries encumber large clusters of acreage to capture a resource. Unfairly, yet with the government’s blessing, the wind industry pays disproportionately to very few. The oil industry pays proportionately to all.
The success of energy development either succeeds or fails depending how the rules are applied. In Ohio, wind energy is getting tremendous opposition because the industry is held to an entirely different set of standards. Perhaps that has something to do with legislators that do not have enough experience to understand the old drilling rules (150 years in the making) versus the relatively new rules for wind (20 years in the making). It’s no secret that noncompensated landowners in wind farms feel cheated and bullied. The absence of correlative rights for wind farm members is extraordinary.
Comparing wind to oil, the rules for wind farms dictate that profit be paid only to turbine hosts, and the majority of landowners will receive not one nickel. The majority will never be able to sign a lease with a competitor. They will never have a “cash-generating turbine” on their land. The only sharing aspect for wind farm inclusion is that the majority will share equally the burden of any ill effects. Their right to capture is worthless and is totally lost. The noncompensated wind farm resident has no voice as the state conveys our tax dollars to the wind company for support along with the exclusive right to capture. Hence, thousands of acres become stranded from any future production as one company monopolizes the production zone with the blessing of ill-informed or misguided state regulators. Consider this: If every person that lies within the bounds of a wind farm wanted to build their own industrial turbine, they could not because of setback rules. In contrast, the government would never consider allowing an oil company an exclusive right to drill and to then pay only to the landowner that hosts the wellhead. The wind turbine host enjoys that exact scenario to their exclusive benefit. If legislators can see fit to ensure fairness to every landowner that is encumbered in an oil drilling unit, then why not have similar protective rules for the wind farms?
The rule for force pooling in the oil industry wasn’t created until 1965, after 100+ years of drilling. After years of abuse and inappropriate interpretation, public awareness worked to drive a change. Since we now live in the information age, it shouldn’t take us 100 years to wise up to the wind companies. Our legislators must be aware of the inconsistent rules for energy production. The rules for wind farms need to be updated to keep pace with the changes in technology and rapid development. If the wind industry and our government expect landowners to go green and buy into the turbine idea, then they both need to take a lesson from the rules set forth in the oil industry and then consider the upside of sharing the profit fairly.
Author: Monitor Township, Bay County, Mich.
Section 3.48 [excerpts]
This Ordinance is intended to protect the health, safety and welfare of the residents of the Township and to encourage the safe, effective, efficient and orderly development and operation of wind energy resources in the Township while preserving and protecting the character and the stability of residential, agricultural, recreational, commercial, industrial and other areas within the Township.
Adverse Sound Character: Sound that causes building rattle, is impulsive, tonal, or has low-frequency bass rumble.
Ambient is defined as the sound pressure level exceeded 90% of the time over a 96-hour measurement period with daytime/nighttime division.
Lmax (LAmax or LCmax): The maximum dB(A) or dB(C) sound level measured using the “fast response” setting of the sound meter (equivalent to 0.125 second exponential averaging time).
L10 is the noise level exceeded for 10% of the time of the measurement duration. This is often used to give an indication of the upper limit of fluctuating noise, such as that from road traffic.
L90 is the noise level exceeded for 90% of the time of the measurement duration and is commonly used to determine ambient or background noise level.
Utility-Scale (also known as Commercial and Large-Scale) Wind Energy Conversion System: A wind energy conversion system greater than sixty (60) feet in total height (tip height) intended to generate power from wind primarily to supplement the greater electric utility grid. Utility-Scale WECS includes accessory uses such as, but not limited to, SCADA towers, anemometers, or electric substations.
Review Standards for Commercial Wind Energy Conversion Systems (WECS).
Height and Scenic Vista. The maximum height of any Utility-Scale WECS is 500 feet. The height of a WECS is measured from the lowest natural grade at the base of the pole to the highest point of the WECS when a blade is in its vertical orientation.
Abandonment. Any WECS that is not used to produce energy for a period of six (6) successive months or longer shall be deemed to be abandoned and shall be promptly dismantled and removed from the property in accordance with the decommissioning regulations of this ordinance, unless the applicant receives a written extension of that period from the Township Board in a case involving an extended repair schedule for good cause.
Vibrations. Wind turbines shall not create vibrations that are detectable by humans on non-participating properties.
Safety Manual. The Applicant must provide an unredacted copy of the manufacturer’s safety manual for each model of turbine without distribution restraints to be kept at the Township Hall and other locations deemed necessary by Planning Commission or local first responders. The Manual should include standard details for an industrial site such as materials, chemicals, fire, access, safe distances during WECS failure, processes in emergencies, etc.
Noise. Applicant shall provide an initial sound modeling report and, within six (6) months of commencing operation of the WECS, a postconstruction report for the project with a schedule and documentation …
Setback. The minimum setback from any property line of a Non- Participating Landowner or any road right-of-way shall be no less than 2000 feet. The minimum setback from any property line of a Participating Landowner shall be no less than 1640 feet.
Communication Interference. Each WECS and Testing Facilities shall be designed, constructed and operated so as not to cause radio and television or other communication interference. In the event that verified interference is experienced and confirmed by a licensed engineer, the Applicant must produce confirmation that said interference had been resolved to residents! satisfaction within ninety (90) days of receipt of the complaint. Any such complaints shall follow the process stated in Complaint Resolution sections.
Infrastructure Wiring. All electrical connection systems and lines from the WECS to the electrical grid connection shall be located and maintained underground. …
Road Damage. The Contractor shall inform the Bay County Road Commission (BCRC) of all the roads they propose to use as haul routes to each construction site. This shall be done prior to beginning any construction at any site. The identified haul routes shall be videotaped by either the BCRC or Contractor prior to the beginning of construction and after construction has been completed. Upon review of the before and after videos and physical review of each roadway, the BCRC shall determine what damage, if any, was caused by the Contractor! s vehicles. If it is determined damage to the road was caused by the Contractor! s vehicles or activities, the Contractor shall work with the BCRC to determine the extent of the roadway repair needed. This may include, but is not limited to, crush and shaping the roadway, placing additional aggregate, placing a new chip seal surface (two courses minimum), placing a new asphalt surface or a combination thereof. In all cases, the roadway shall be constructed in accordance with the BCRC! s current specifications and requirements associated with the type of roadway to be installed. All costs for said work shall be the responsibility of the Contractor.
Shadow Flicker. No amount of Shadow Flicker may fall on or in a Non-Participating Parcel. … Participant parcels shall not exceed 30 hours of shadow flicker per
Strobe Effect. No amount of Strobe Effect may fall on or in any parcel. Under no circumstances, shall a WECS or Testing Facility produce strobe effect on properties.
Voltage. The Applicant shall be responsible for compensation to residents for property, including livestock, health or other damage by stray voltage caused by a WECS. The Applicant shall demonstrate WECS prohibits stray voltage, surge voltage, and power from entering ground.
Regulation of WECS Commercial and Industrial Noise. To preserve quality of life, peace, and tranquility, and protect the natural quiet of the environment. This ordinance establishes the acoustic baseline, background sound levels for project design purposes, and limits the maximum noise level emissions for commercial and industrial developments. Residents shall be protected from exposure to noise emitted from commercial and industrial development by regulating said noise.
Non-Compliance with Standards. The Township Board reserves the right to require WECS Applicant to shut down any WECS unit that does not meet ordinance requirements until such WECS unit meets ordinance requirements or is removed.
a) No WECS shall generate or permit to be generated audible noise from commercial or industrial permitted facilities that exceeds 45 dBA (Lmax) or 55 dBC (Lmax) (dBC-to-dBA ratio of 10 dB per ANSI standard S12.9 Part 4 Annex D) for any duration, at a property line or any point within any property.
b) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any acoustic, vibratory, or barometric oscillations in the frequency range of 0.1 to 1 Hz that is detectable at any time and for any duration by confirmed human sensation or exceeds a sound pressure level from 0.1 to 20 Hz of 50 dB(unweighted) re 20 µPA or exceeds an RMS acceleration level of 50 dB(unweighted) re 1 micro-g by instrumentation at a landowner’s property line or at any point within a landowner’s property.
c) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any vibration in the low-frequency range of 0.1 to 20 Hz, including the 1, 2, 4, 8, and 16 Hertz octave bands that is perceivable by human sensation or exceeds an rms acceleration level of 50 dB(unweighted) re 1 micro-g at any time and for any duration either due to impulsive or periodic excitation of structure or any other mechanism at a landowner’s property line or at any point within landowner’s property.
d) A noise level measurement made in accordance with methods in section “Noise Measurement and Compliance” that is higher than 45 dBA (Lmax) or 55 dBC (Lmax), adjusted for the penalty assessed for a tonal noise condition, shall constitute prima facie evidence of a nuisance.
e) An acoustic, vibratory or barometric measurement documenting oscillations associated to commercial or industrial permitted facilities with levels exceeding the noise limits shall constitute prima facie evidence of a nuisance.
f) All commercial and industrial activity shall comply with limits and restrictions anywhere at any time on another property.
g) Leq 1-sec shall be used for all measurements and modeling.
Noise Measurement and Compliance. …
Wind Energy Conversion System (WECS) Site Plan Review Procedure. …
Economic Impact. …
—Adopted March 25, 2019
Author: Cooper, Steven
The issue of an updated noise guideline for wind farms in South Australia represents the third (public) attempt at the Environment Protection Authority (EPA) to address wind turbine noise and unfortunately still contains significant errors and omissions as to to fundamental requirements with respect to the protection of the amenity of residents in proximity to wind farms.
Despite complaints from residents and documentation in relation to such complaints, the EPA have not established appropriate criteria to protect the acoustic amenity of residents. …
The guidelines do not identify what level of noise, or what noise characteristics, will result in sleep disturbance. Assuming that most people will sleep indoors, then Section 2.3 identifies that sleep disturbance is likely to be considered inside as an unreasonable interference that in turn could create an adverse health impact. Section 2.3 is silent on what is a sufficient outdoor amenity to not create an adverse health impact. … There is no information to identify what wind turbine noise levels and characteristics create and adverse impact for hosts or non-hosts. … Without this material provided in the noise guidelines then there is absolutely no way that any environmental assessment can be undertaken for a wind farm and identify that there will be no adverse noise impact. … There is no material to support the limits specified in the guidelines, and in light of no dose-response data for wind turbines, the matter of not identifying the precautionary principal in creating a noise guideline in relation to wind turbines is not acceptable.
In relation to fulfilling the ethical and moral obligations of acousticians to rural communities in proximity to wind farms, research has been conducted by multiple researchers including Professor Colin Hansen, Associate Professor Con Doolan, & Dr Kristy Hansen at Adelaide University & Flinders University, Dr B Thorne, Mr L Huson and the author into what constitutes the acoustic signature of wind turbines and how it is impacting upon people. The Adelaide University researchers conducted almost all of their research at Waterloo Wind Farm in South Australia, and have published a text book as well as multiple peer reviewed published papers. There is no reference to any of that material in the bibliography to the draft guidelines … In addition to the failure of the SA EPA to establish the acoustical basis of the core objectives and how the nominated levels will protect the community for adverse noise or health impacts there a technical issues in the guidelines that question the technical capability of the SA EPA to fulfil their obligations to protect the rural community from adverse noise impacts from wind turbine installations.
There is general agreement in acoustic Standards that there is a distinct different degree of sensitivity to noise by residential receivers during the night to that in the day. There are many Acoustic Standards throughout the world in relation to industrial noise and transportation noise where there is a different weighting (for different acoustic descriptors) applied to noise events that occur in the night-time period when compared to the daytime period. …
The concept for wind turbines of using a generic criteria based upon 24-hour measurements would appear to be inconsistent with general environmental assessments, in that there is an expectation of lower background levels and therefore lower criteria for the night time periods. Background levels at night are typically lower than in the day. Yet the draft guideline does not acknowledge this fact by providing different criteria.
Generally for a wind farm application, with respect to wind data monitoring of the wind for a proposed wind farm is undertaken over a number of years. Therefore, the concept of utilising two weeks of noise data for establishing criteria for a wind farm would appear to be inadequate and not appropriately considered by the EPA.
The difference in prevailing wind for a site or receiver location for the different seasons of the year may be significant in terms of both the assessment of the background level and the predicted noise levels. Such differences are not appropriately reflected in a regression averaging technique based upon hub height wind speeds without any identification of wind direction or seasons.
In the determination of noise criteria for other noise sources such as industry for transportation, the use of dose response curves determines criteria based around 10% of the population seriously or highly affected.
One concept presented in New South Wales by the EPA and Department of Planning is to establish criteria to protect 90% of the population 90% of the time and in that regard ambient background level is expressed in terms of the lowest 10 percentile of the background levels.
It is upon that lowest 10 percentile background level upon which in NSW the background +5 dB(A) limit as a general criterion is based. …
Section 4.7 (Annoying characteristics) repeats the previous errors (in the current and original version of the guideline) in relation to infrasound and clearly an inadequate literature research that indicates that is not a problem.
The suggestion in Section 4.7 that amplitude modulation or low frequency noise is not expected to impact upon receivers during a substantial fraction of the year is incorrect. …
Amplitude modulation by definition is the variation in the level of a carrier frequency where the variation in the level of that carrier frequency (described as modulation) occurs due to a much lower frequency. …
For a wind turbine when one is utilising the correct terminology, amplitude modulation can be related to the output shaft speed of the gearbox (where that tone is the carrier, as a clear and distinct tone) that is modulated at the rate of the blade pass frequency. Depending upon the turbine model the carrier frequency may be at for example, 25.5 Hz, 26 Hz or 31.5 Hz. A narrowband frequency analysis of the signature reveals side bands (to the gearbox output shaft frequency) that clearly satisfy the definition of amplitude modulation [link].
However, the audible noise associated with the “swish” or “thumping” noise is not amplitude modulation (by definition) but is a “modulation of the sound” as identified in the New Zealand Standard as a special audible characteristic. One would have expected the SA EPA to have understood the difference between amplitude modulation and modulation of the sound.
The use of the dB(A) level cannot, by definition be considered as a single frequency because it is a result of multiple frequencies. The dB(A) level can be seen to be modulated at the rate of the blade pass frequency. Therefore, the modulation (variation) of the dB(A) level cannot be called amplitude modulation. The periodic variation on the amplitude of the dB(A) is a modulation of the dB(A) level, where the modulation occurs at an infrasound rate. …
Additionally, it must be noted that determining “compliance” by use of a L90 average level would not account for the modulation of the acoustic signal. The time signature of a wind turbine identifies a series of pulses which occur at the blade pass frequency. The blade pass frequency is in the order of 0.86 Hz for a three bladed turbine operating at 17 rpm.
Therefore, there are questions as to whether infrasound as a concept of sound itself is generated by wind turbines [link1; link2]. As such the concept of audibility or effects from infrasound as suggested in the guideline may not be appropriate. The threshold of audibility for a tone is different to that of a pulse, especially in the infrasound region [link]. Research work and investigations undertaken by the author (by testing conducted in a chamber that could produce infrasound pure tones down to 1 Hz) identified that there is a difference in terms of the perception of infrasound for pure infrasound tones on a constant basis versus pulsations. There is also a hysteresis effect in the thresholds (for both sensitivity and hearing) when increasing the level of infrasound versus decreasing the level [link]. Additional work undertaken by the author has identified the provision of signals recorded in houses in proximity to wind farms and specifically using filters to prohibit any sound below 40 Hz into the speakers, to find that digital frequency analysis of the signal will show the presence of a signature in the infrasound region by way of the incorrect analysis of the pulsations, when in fact there is no infrasound present [link]. …
The suggestion in Section 4.7 of the draft guideline that annoying characteristics are not fundamental to a typical well-maintained wind farm is incorrect. In the UK there have been efforts to define “excessive amplitude modulation” in light of the increase in annoyance that identifies the above SA EPA claim of annoying characteristics is incorrect. Often residents complain that they hear (generally inside the dwelling but also external to the dwelling) on a continuous basis a low frequency noise when the turbines are operating, with the description typically expressed as a plane that never lands.
The development of wind farms in South Australia has resulted in the creation of a new industrial noise source that gives rise to disturbance to rural residents.
With the benefit of hindsight, it is apparent that the guidelines introduced by the South Australian EPA were not based upon actual wind turbine noise but on criteria for other noise sources without identifying the differences between those established noise source sources and wind turbine noise. Over the ensuring period the size of wind turbines has increased and so has the impact. Therefore one questions the relevance of original work on wind turbine noise carried out in Europe on turbines with significantly lower capacity.
From the outset, the South Australian wind farm guidelines had failed to provide material that identifies how the objectives of the guidelines are satisfied, by not identifying what acoustic impacts occur or adverse health impacts that occur as a result of the operation of wind turbines.
On a statistical basis, the number of complaints from communities in proximity to wind turbines is well above the norm and as such cannot be ignored by any regulatory authority if acting to protect the amenity of residents.
The principal issue that the author has experienced in attending residential properties with respect to wind farms is that residents report sleep disturbance. There appears to be a deterioration over time for some people that are impacted. It is noted that not all people are impacted by wind turbines which is compatible with an analogy for seasickness. …
There is often an excuse provided that there are no studies to show that wind farms create health impacts, which can also be said in the reverse case that there are no studies to show there are no health impacts. Because there is a lack of studies.
Work undertaken by the author has identified that in a laboratory situation persons who have become sensitised to wind turbines can detect the presence of a wind turbine signal even though it is inaudible [link]. I am advised by persons who have been adversely affected by wind turbines to the point of having to relocate from their properties (permanently or regularly) and who have recently participated in testing undertaken by Flinders University that in terms of the sleep study they have experienced disturbed sleep.
Further work by the author in relation to the investigation of fluctuations (that is not just restricted to wind turbine noise) reveals that the presence of excessive modulation, which occurs on a regular basis from wind turbines, gives rise to a greater level of annoyance which should be added to the A-weighted levels with respect to wind turbine noise [link].
Download original document: “South Australia Wind Farm Guidelines Consultation”
Author: Thorsson, Pontus
In most countries there are regulations of wind turbine sound level outdoors at dwellings. Often there are also regulations of the sound levels inside the dwelling, however not often directly aiming at wind turbine sound. The sound level indoors from wind turbines has attracted more interest in the latest years, and then especially in the low frequency region (up to 200 Hz). Studies on the in situ sound level difference between outside and inside of dwellings are however scarce. This paper presents the in situ measured sound level difference for two Swedish houses in rural locations, both using a loudspeaker and using the wind turbine sound as exciting signal. This is possible due to a 2 month long measurement series with simultaneous sound recordings outside and inside. The sound pressure level differences from the two methods are shown to differ substantially.
Pontus THORSSON, Akustikverkstan, Lidköping, Sweden
Proceedings of the 23rd International Congress on Acoustics, 9–13 September 2019, Aachen, Germany: pages 3826-3830
Download original document: “In situ measured facade sound insulation of wind turbine sound”