Resource Documents: U.S. (147 items)
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Wind Farms and Public Use Airports – Why the FAA Fails to Ensure Air Safety
Author: Armstrong, Alan
The explosion of wind turbine developments across the United States does not bode well for the continued viability of many public use airports.
OVERVIEW OF THE PROBLEM
Increasingly, wind farms with wind turbine generators (WTGs) nearly 500 feet above ground level litter the landscape. However, the disturbing reality is that these wind farms are being built in close physical proximity to public use airports. Because of their height and their interference with radar sites used by air traffic control and interference with normal traffic flow patterns, the construction of wind farms near public use airports is an existential threat to those airports. The erection of wind turbine generators near public use airports invariably leads to the following:
- Interference with radar used to provide radar services to pilots operating aircraft in and out of the airport with “clutter” and other signal disturbances having an adverse impact on the ability of air traffic control to provide services to pilots;
- Alterations of the traffic flow for VFR traffic operating in and out of the airport resulting in a “bottle neck” of traffic flow with a concomitant loss of separation between aircraft and the WTGs and aircraft and other aircraft;
- Penetrations of “imaginary surfaces” designed to assure pilots operating aircraft separation from fixed objects such as WTGs and antennae that may present collision hazards in low visibility conditions;
- An increase in the climb gradient for aircraft departing the airport in an effort to prevent departing aircraft from impacting the WTGs; and
- An increase in the minimum descent altitudes and/or decision heights at which pilots may operate their aircraft when conducting instrument approach procedures into the airport.
The net result of these adverse effects is to make the airport a less safe and efficient destination whether for flight training purposes, refueling, or remaining overnight. Consequently, pilots, based upon their interest in self-preservation and the desire to avoid being impaled in the blades of a wind turbine generator, will select airports other than airports surrounded by wind turbine generators for fuel stops, remaining overnight, and for flight training purposes.
Although the airport sponsor has an obligation under FAA Sponsor Grant Assurance No. 20 to keep the approaches and departures from the airport safe and clear of obstructions, the reality is that the FAA Obstacle Evaluation Group overrides those concerns and invariably rules in favor of the wind farm developer by issuing a Determination of No Hazard (DNH). In the DNH, the FAA will concede that the wind turbine generators interfere with radar, elevate the minimum descent altitudes, require increased climb gradients, and the host of other problems, but will still conclude there are no “adverse consequences” to the erection of wind turbine generators in close physical proximity to a public use airport. This simply is a reality. The FAA Obstacle Evaluation Group invariably finds in favor of the developer and demonstrates no interest in protecting the safety of the airport, even though the airport sponsor has promised the FAA Airports Division to keep the airport safe and free of obstructions.
HOW THE GAME IS PLAYED
The developer of a wind farm is required to file with the FAA a Form 7460-1 if the wind farm will be built in the vicinity of a public use airport. Generally, in response to the filing of the form, the FAA renders a Notice of Presumed Hazard (NPH). The NPH catalogs all the problems the erection of the wind farm will present to the airport such as increasing the climb gradients, increasing the minimum descent altitudes, adverse impact on radar facilities employed by air traffic control in providing radar services to pilots operating to and from the airport, and a host of other problems that are presented by the erection of WTGs in the vicinity of the airport. However, the Obstacle Evaluation Group of the FAA invariably states in the NPH that a different result might be achieved if an aeronautical study were conducted. An aeronautical study is conducted pursuant to 49 U.S.C. §44718, 14 C.F.R. §77.29, and FAA Order JO 7400.2M, Procedures for Handling Airspace Matters (“the Handbook”). The aeronautical study is supposed to consider the impact on arriving and departing IFR and VFR flights, the impact on the public use airport, the impact on traffic capacity at the airport or planned airports, the impact on the minimum obstacle clearance altitudes, the minimum flight instrument rules altitudes, the impact on approved or planned instrument approach procedures and departure procedures, the potential effect on ATC radar including the physical or electromagnetic effects on air navigation facilities, and the cumulative effect of the wind turbine generators when combined with the effects of other existing or proposed structures.
While there are clear, engineering and scientific principles in determining whether structures are obstructions to air navigation, those clear, empirical considerations vanish with the execution of an aeronautical study which gives the person conducting the study the latitude to determine whether or not obstructions to air navigation that penetrate imaginary surfaces have an “adverse effect” on safety. While the FAA pretends in the Handbook that its primary objective is to ensure safety in air navigation, in reality its primary goal is to enable developers of wind turbine generators and others who create obstructions to air navigation to put their structures in place. In fact, the conciliatory nature with which the Obstacle Evaluation Group views penetrations to imaginary surfaces is borne out by the fact that it seeks to resolve the issues through “negotiations” with the sponsor. Why is this? The answer is simple. The FAA does not want to spend its precious resources fighting with developers of wind turbine generators. That economic burden falls on the city or county that owns the airport or on public interest groups that seek to preserve and protect the airport. That is of no concern to the FAA. Moreover, while the airport sponsor must keep the approaches and departure surfaces of the airport safe and free of obstructions to comply with the Sponsor Grant Assurances, the Obstacle Evaluation Group frequently frustrates those obligations and responsibilities of the airport sponsor.
It is troubling that the FAA views itself as an enabler of developers who seek to construct wind turbine generators. However, this is a reality. Moreover, time and time again, the FAA has been reversed because it has demonstrated it does not understand its own Handbook. This is precisely what happened in Town of Barnstable, Massachusetts v. Federal Aviation Administration, 659 F.3d 28, 36 (D.C. Cir. 2011) where the FAA was reversed and the United States Court of Appeals for the District of Columbia declared:
The FAA repeatedly notes in its brief that the Handbook “largely consists of criteria rather than rules to follow.” Respondent’s Br. at 40. We agree. Any sensible reading of the Handbook, and of §6-3-8(c)(1) in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the Handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure, see D&F Alfonso Realty Trust v. Garvey, 216 F.3d 1191, 1197 (D.C. Cir. 2000), the FAA catapulted over the real issues and the analytical work required by its Handbook.
659 F.3d at 36.
The developer of a wind farm is required to file with the FAA a Form 7460-1 if the wind farm will be built in the vicinity of a public use airport. Generally, in response to the filing of the form, the FAA renders a Notice of Presumed Hazard (NPH). The NPH catalogs all the problems the erection of the wind farm will present to the airport such as increasing the climb gradients, increasing the minimum descent altitudes, adverse impact on radar facilities employed by air traffic control in providing radar services to pilots operating to and from the airport, and a host of other problems that are presented by the erection of WTGs in the vicinity of the airport. However, the Obstacle Evaluation Group of the FAA invariably states in the NPH that a different result might be achieved if an aeronautical study were conducted. An aeronautical study is conducted pursuant to 49 U.S.C. §44718, 14 C.F.R. §77.29, and FAA Order JO 7400.2M, Procedures for Handling Airspace Matters (“the Handbook”). The aeronautical study is supposed to consider the impact on arriving and departing IFR and VFR flights, the impact on the public use airport, the impact on traffic capacity at the airport or planned airports, the impact on the minimum obstacle clearance altitudes, the minimum flight instrument rules altitudes, the impact on approved or planned instrument approach procedures and departure procedures, the potential effect on ATC radar including the physical or electromagnetic effects on air navigation facilities, and the cumulative effect of the wind turbine generators when combined with the effects of other existing or proposed structures.
While there are clear, engineering and scientific principles in determining whether structures are obstructions to air navigation, those clear, empirical considerations vanish with the execution of an aeronautical study which gives the person conducting the study the latitude to determine whether or not obstructions to air navigation that penetrate imaginary surfaces have an “adverse effect” on safety. While the FAA pretends in the Handbook that its primary objective is to ensure safety in air navigation, in reality its primary goal is to enable developers of wind turbine generators and others who create obstructions to air navigation to put their structures in place. In fact, the conciliatory nature with which the Obstacle Evaluation Group views penetrations to imaginary surfaces is borne out by the fact that it seeks to resolve the issues through “negotiations” with the sponsor. Why is this? The answer is simple. The FAA does not want to spend its precious resources fighting with developers of wind turbine generators. That economic burden falls on the city or county that owns the airport or on public interest groups that seek to preserve and protect the airport. That is of no concern to the FAA. Moreover, while the airport sponsor must keep the approaches and departure surfaces of the airport safe and free of obstructions to comply with the Sponsor Grant Assurances, the Obstacle Evaluation Group frequently frustrates those obligations and responsibilities of the airport sponsor.
It is troubling that the FAA views itself as an enabler of developers who seek to construct wind turbine generators. However, this is a reality. Moreover, time and time again, the FAA has been reversed because it has demonstrated it does not understand its own Handbook. This is precisely what happened in Town of Barnstable, Massachusetts v. Federal Aviation Administration, 659 F.3d 28, 36 (D.C. Cir. 2011) where the FAA was reversed and the United States Court of Appeals for the District of Columbia declared:
The FAA repeatedly notes in its brief that the Handbook “largely consists of criteria rather than rules to follow.” Respondent’s Br. at 40. We agree. Any sensible reading of the Handbook, and of §6-3-8(c)(1) in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the Handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure, see D&F Alfonso Realty Trust v. Garvey, 216 F.3d 1191, 1197 (D.C. Cir. 2000), the FAA catapulted over the real issues and the analytical work required by its Handbook.
659 F.3d at 36.
THE STATE COURT OPTION
The laws in the various jurisdictions vary. In some states, if the FAA issues a determination of no hazard, the state officials rubber-stamp the FAA determination and issue a permit to erect the wind turbine generators. Further, in some states, there are local airport authorities with airport zoning rules, and until and unless the wind turbine generator developer obtains a determination of no hazard, a variance from the zoning ordinances cannot be obtained. On the other hand, in the State of Iowa, even though there is a determination of no hazard, the local airport zoning board can preclude the erection of an obstruction in navigable airspace, a fact borne out by the decision of the Supreme Court of Iowa In the Carroll Airport Commission v. Danner, 927 N.W.2d 635 (IA 2019). The Iowa Supreme Court reasoned that the FAA airspace regulations do not occupy the field to such an extent that the field is preempted by FAA regulations and further concluded that regulating navigable airspace is a joint endeavor between the FAA and state government.
SUMMARY AND CONCLUSION
The explosion of wind turbine developments across the United States does not bode well for the continued viability of many public use airports. The operators of those airports are going to have to appreciate the legal and regulatory milieu in which they find themselves and garner the resources to combat the proliferation of wind turbine generators in and around their airports. Otherwise, their airports may face extinction.
Alan Armstrong
Oct 17, 2019
alanarmstronglaw.com
Wind Energy Conversion Systems Zoning Ordinance
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
calendar year.
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.
Noise.
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
Wind Energy Conversion Systems Zoning Ordinance
Three estimates of decommissioning cost
Author: Various
Brian R. Zelenak, Manager, Regulatory Administration, Xcel Energy, February 8, 2011 – re: Nobles Wind Energy Project, Minnesota, 1.5-MW turbines. [download]
A conservative estimate for a decommissioning expense is approximately four-hundred forty-five thousand dollars ($445,000) per turbine (2009 dollars).*
*Includes allowance for salvage value and based on total dismantling cost estimate for the project of 8.7% of the total plant balance of $510,965,406, equaling an estimated dismantling cost [of] $44.5 million or $445,000 per turbine. [NWW note: The Nobles project consists of 134 1.5-MW turbines, not 100, which would make the assumed 8.7% decommissioning cost $332,000 per turbine (2009 dollars).]
[$445,000 in 2009 is equivalent to $533,000 in 2019, $332,000 to $397,000.]
Wenck Associates, April 2017 – re: Palmer’s Creek Wind Farm, Minnesota, 2.5-MW turbines. [download]
The estimated cost to decommission Palmer’s Creek Wind Farm was provided by Fagen, Inc., construction contractor, in a letter dated November 16, 2016. The estimate is considered to be the current dollar value (at time of approval) of salvage value and removal costs. The estimated salvage value of each turbine will be based upon the worst-case scenario assuming the only salvage value of the turbine is from scrapping the steel. The estimate was based upon the total weight of one turbine, which is 275 tons consisting primarily of steel. Because it does not separate the scrap value of all the constituent materials, the estimate is very conservative. Also, it is highly likely that there would be opportunities for re-sale for reuse of all or some of the turbines or turbine components. Based on the current estimate, the cost of decommissioning is $7,385,822 with a potential scrap return value of $445,500 [net cost of $385,573 per turbine, $403,881 in 2019 dollars].
Henry Blattner, Senior Estimator, Blattner Energy, to Ryan Pumford, Nextera Energy, 2017 – re: Tuscola Wind III, Michigan, 2-MW turbines. [download]
To mobilize a crew and equipment, take down a GE wind turbine and haul off site the cost would be $675,000.00. Assuming a salvage value of $150 per ton and weight of 188 tons for the steel in the turbine and tower we [would] be able to reduce this cost by $28,200. The total price minus the salvaged steel would be $646,800.00.
Couple statements about reliability and cost
Author: Northern Indiana Public Service Company
Indiana Utility Regulatory Commission: Cause 45159 [link] —
Verified Direct Testimony of Andrew S. Campbell, Director of Regulatory Support & Planning, Northern Indiana Public Service Company (NIPSCO) [link]
Q18. How will reliability be maintained when the wind isn’t blowing?
A18. NIPSCO will continue to dispatch its steam and gas fleet and other available wind generation, as well as purchase power from MISO, to meet customer demand and reliability needs throughout the term of the Roaming Bison Wind Energy PPA. This ensures that when the wind is not blowing customers will continue to receive reliable service every hour of every day.
Verified Direct Testimony of Benjamin Felton, Senior Vice President, NIPSCO Electric [link]
Q23. Do reductions in the dispatch of NIPSCO’s coal units impact the cost to operate those units?
A23. Yes. NIPSCO’s coal units were engineered to be used as base load units that run consistently over long periods of time, and they were not designed to ramp up and down in response to short term market signals. As those units become less economical, the cost to operate them increases because in addition to the increased maintenance required of older units, the added expenses to ramp the units up and down are incurred more frequently. NIPSCO must remain mindful of how that added expense to customers balances against the impact on reliability. In spite of the cost control efforts NIPSCO has undertaken as I have referenced above, the operational characteristics of these plants dictate that some increases in costs cannot be avoided when the plants are operated outside of the parameters for which they were designed.
[This was the same Cause in which the Sierra Club asserted their interest, which was for an arm of the energy industry, not the environment: “Sierra Club seeks full intervention in order to ensure that its interests in lower cost and cleaner energy options are fully represented, and to bring to this proceeding its expertise in electric utility matters.” (link)]
