KEYSER – Pressed by the corporate ownership of the Pinnacle Wind Farm, the West Virginia Public Service Commission has dismissed a protest filed by a Green Mountain man who complained about noise from the turbines, with the Commission reversing itself and over-ruling its own staff in determining that it no longer has jurisdiction in the matter.
Rejecting staff advice to continue the case while the wind farm ownership installed muffling devices on all 23 turbines, the three member PSC earlier this month abruptly closed the case filed by Richard Braithwaite and directed him to pursue his complaint through the court system.
On May 17 PSC staff filed a memorandum on the Braithwaite complaint, recommending that the case be kept open while Pinnacle owner Edison Mission Group installed “acoustic louvers” on all of the turbines, following a trial application on a single tower.
Staff at that time heatedly rejected arguments made by Edison in favor of dismissing the case, and called instead on the PSC to continue monitoring Pinnacle to ensure that noise levels were reduced to acceptable standards as outlined in the original siting permit that allowed the wind farm.
“In its latest filing, Pinnacle makes many arguments that Staff believes are largely irrelevant that Staff will not address in this memorandum,” PSC staff attorney John Auville wrote in his May 17 report. “Staff will focus on what it believes to be the main thrust of this case, which is the fact the Pinnacle project is generating unpredicted and objectionable noise. The existence of this unpredicted and objectionable noise has been verified by the Staff Engineer in this case using the most appropriate scientific measuring methodology available, his own ears.”
In response to complaints made by Braithwaite and other nearby property owners, Edison had installed a muffler device on one turbine designed to reduce the noise from the cooling equipment in the bus-sized “nacelle” to which the turbine blades are attached. Auville in his memo said that the mufflers might correct the problem, but the only way to be sure was to have them installed throughout the project and compare sound readings pre- and post-installation.
“It is standard procedure in a complaint case that once a problem is identified, a case stays open until the utility proves it has remedied the problem,” he wrote. “That same procedure is what Staff has recommended in this case and therefore stands by the recommendations made (in an earlier memo.)”
One week after Auville’s memo, Edison on May 24 filed a motion through its Charleston attorney seeking dismissal of the complaint and “expedited treatment” of the matter. As it had in earlier filings, the company argued that the Braithwaite complaint had interfered with its bank financing and was delaying its ability to close on the final transaction for the Pinnacle project.
“With due respect to the Staff, Pinnacle believes that the Staff engineer’s use of nothing more than ‘his own ears’ is insufficient evidence that Pinnacle has violated its siting certificate, and certainly does not justify the wide-ranging sound measurement studies the Staff now recommends…,” Edison attorney Christopher Callas wrote. “Indeed, staff’s recommendation would effectively change the Siting Rules in a retroactive, unfair way.”
Callas went on to note that Braithwaite’s complaint was causing uncertainty with lending institutions and threatening Edison’s ability to complete financing for the project. He also hinted that the state itself could suffer the loss of future wind industry investment if such complaints were allowed to be lodged after a wind farm has become operational.
“Pinnacle explained in its May 7 filing that it has incurred substantial unnecessary costs in its permanent financing efforts, and that Pinnacle and its lending group continue to endure the uncertainty the complaint has created…,” Callas wrote. “More importantly, the relief Mr. Braithwaite seeks in the complaint – the curtailment of Project operations at night, throughout the entire year – not only jeopardizes the completion of the financing, but threatens the economic feasibility of the Project. Protracted litigation questioning the finality of siting certificates will also discourage private investment in energy facilities in the State, an adverse consequence that contravenes recent expressions of legislative intent. Recognition of these considerations is noticeably absent from the Staffs May 17 memo.”
Auville, in his memo a week earlier, had anticipated such a line of argument and rejected the notion that the Braithwaite complaint had impeded financing. The problem was not the complaint, the PSC staff attorney contended, but rather the noise that prompted the complaint.
Braithwaite had first contacted Edison officials about the wind farm on Nov. 5, 2011, the day after the turbines became operational.
“Staff would posit that it is not this complaint that is preventing the financing from closing, but the unpredicted and objectionable noise generated by the project,” Auville wrote. “As long as the project is producing this objectionable noise, it is highly subject to complaints both before this Commission and in Circuit Court and as long as there is still a possibility of further complaints, the future operational parameters of this project are in question and the financing will not close. Staff believes it would be a much better use of resources to allow this complaint to stay open until it is resolved.”
Auville further recommended that the members of the PSC themselves visit the Braithwaite residence “to listen to the noise generated by the project and to better understand the impact that noise is having on the surrounding areas.”
The commission members declined that invitation.
With little comment, the PSC came down in favor of Edison, essentially ruling in its June 1 decision that the Commission will not entertain complaints such as Braithwaite’s, filed after a wind farm has become operational. The Commission sited a 2007 West Virginia State Supreme Court ruling about a power generation plant in which the court found that individual property rights should not be a primary consideration in appraising and balancing “the interests of the public, the general interest of the state and local economy, and the interests of the applicant (energy firm).”
In a case that may well be be cited in the future by other wind farm owners calling for the dismissal of noise or other complaints associated with their projects, the PSC ruled that “the Commission does not retain the statutorily defined, continuing jurisdiction to address the issues raised by the Complainant. The Commission will dismiss the complaint.”
The Commission did note, however, that Braithwaite and others have recourse through the courts, where nuisance complaints can be heard. Rejecting the PSC’s advice that they pursue such matters through state circuit court, Braithwaite and two dozen other families who have retained a Charleston attorney are already preparing to file such a lawsuit, but in federal court, not the state courts.
Braithwaite, who suffers from headaches and lack of sleep because of the ongoing noise problems, said he was disappointed but not surprised at the ruling. Someone higher up in state government put the screws to the PSC, which in turn rejected its own staff’s recommendation and rolled over “the little guy” to do the bidding of the wind farm’s corporate ownership, he said.
“The governor and all of them are pushing for wind farms, and the PSC backed down …,” Braithwaite said. “They’re not doing their job. That’s all it is.”
Charlie Parnell, a spokesman for Edison, said Monday that studies conducted at Pinnacle found that the test muffler reduced noise significantly, and the company has ordered similar devices for the remaining 22 turbines. He expects the mufflers to be installed sometime this summer.
“We had significant reduction in noise (with the test muffler) and we anticipate significant reduction across the farm once they’re all installed,” he said.
Parnell also noted that the company is beginning work to repair two sections of road that were damaged during development of the wind farm, even though, with the PSC ruling, Edison is not obligated to do so.
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