The Public Service Commission of Wisconsin is reopening Emerging Energies of Wisconsin LLC’s application to build a 102.5-MW wind farm, allowing the developer to re-argue a portion of its case about noise compliance without filing a new application.
Regulators denied Emerging Energies’ application to construct a wholesale merchant wind plant because the company failed to demonstrate that the installation would comply with state restrictions on nighttime noise, according to a final order dated March 15.
Emerging Energies responded with a petition to reopen the case, saying the project was rejected based on “mistaken concern” – “a combination of material factual and legal errors that can be resolved with the presentation of additional evidence,” the company wrote in an April 4 filing. The turbines selected for the project can be programmed to run at lower output levels in order to comply with regulations, company said. “This evidence is sufficiently strong to change or modify the outcome of the case and satisfies the standard for seeking rehearing.”
A copy of the commission’s order, which might shed light on regulators’ rationale, is not yet available. But staff confirmed commissioners voted 2-1 on May 2 to reopen the case. A second prehearing conference is scheduled for May 13.
At least two groups opposed Emerging Energies’ request. The town of Forest, Wis., where a portion of the project would be located, and Forest Voice, an organization that is trying to raise “community awareness about the realities of wind development,” said the developer should have to restart the application process rather than be allowed to reopen a “convoluted [and] complex proceeding” and “revise” the existing application “based on hindsight,” Forest Voice wrote.
Opponents insist curtailment will not work – not to mention it makes “no logical or financial sense” for the developer – and that it would shift the burden of proving noncompliance onto residents disturbed by the project.
“The applicant should not be permitted to exploit the commission’s power to reopen a case to jury rig a flawed project at the eleventh hour,” the town of Forest wrote.
The project, known as the Highland Wind Farm, would consist of up to 44 turbines in two towns in St. Croix County, Wis. The turbines would interconnect with existing transmission lines owned by Northern States Power Co. – WI, a subsidiary of Xcel Energy Inc.
Emerging Energies filed its application in 2011 despite the suspension of state wind-siting rules. Originally designed as a 97.5-MW project, the company upped the farm’s planned capacity to more than 100 MW in order to bring it under PSC authority after the town of Forest elected a new town board that tried to block the project with an ordinance.
The noise restrictions that the project is subject to are stricter at night than during the day, but Emerging Energies said the turbines it chose can be individually programmed to curtail output at certain times in order to meeting varying restrictions. The town of Forest argued, however, that such modifications amount to a project re-design that would cut power capacity to below 100 MW, “thereby depriving the PSC of jurisdiction.”
Project ‘must’ have chance to comply through curtailment
Because the Highland Wind Farm otherwise qualifies for a certificate of public convenience and necessity, Emerging Energies said it “must be given the chance to comply with the noise standard by curtailing production.” Denying the project simply because operational controls are required to comply with regulations would amount to the state Department of Natural Resources denying a wastewater discharge permit on the grounds that a mechanical treatment process is needed to meet water quality effluent limits, the company argued.
“Conditional approvals and the imposition of conditions in conjunction with an agency approval is a tried-and-true method of ensuring compliance with enumerated standards,” Emerging Energies said.
And reopening the case, rather than forcing the applicant and regulators to re-engage in another full hearing, offers a less taxing process for everyone, the company added.