Power Siting Construction Certificate: County Forfeits Environmental Impact Argument in Amendment to Wind Farm Construction Certificate |[OH S CT]|

In 2012, a wind farm developer, Buckeye Wind, L.L.C. (“the Company”), applied for a certificate to construct a wind farm as required under Ohio law for the construction of a fifty megawatt or greater electricity generating facility. The application included, among other things, the construction of 53 wind turbines, as well as access roads, construction staging areas, a substation, and a mixture of overhead and underground electrical collection lines. Under its authority, the Power Siting Board approved the application and granted the certificate to commence construction. A year later, the Company decided to construct an additional 52 turbines and, therefore, needed to amend the previous certificate. Specifically, it sought the following six amendments: to move all electrical collection lines underground, to relocate four previously approved access roads, to increase the size of the construction staging area, to relocate a separate staging area, to relocate the substation, and construct a new access road. The county in which the construction was to take place intervened and demanded a hearing under R.C. 4906.07(B). Under the statute, a public hearing is required if a proposed amendment to a power siting certificate constitutes either an increased environmental impact or a substantial change in location. In November 2013, an administrative law judge (“the ALJ”) determined that the first three amendments, such as the relocation of all the electrical lines underground, did not require a hearing under the law. The county did not object.

In January 2014, the Company brought the remaining amendments to a hearing before the ALJ. This time, however, individuals who neighbored the project site requested that the ALJ include first three amendments in the hearing. There, the county again made no objection. After the hearing, the Board approved the amendment. The county then applied for a rehearing. It claimed that amendments such as the relocation of all of the lines beneath ground constituted an increased impact to the environment and thus required a public hearing under R.C. 4906.07(B). The Board denied the rehearing request, and the county appealed.

In IN RE BUCKEYE WIND, L.L.C., 2016-Ohio-5664, 2016 WL 4699153 (Ohio Sept. 7, 2016), the Ohio Supreme Court upheld the Power Siting Board’s denial of the county’s rehearing request because it had forfeited its objections when it failed to make them during both the preliminary and actual hearings. Pursuant to previous power siting cases, the Court maintained that a party forfeits arguments for appeal if it deprives the agency or organization the opportunity to cure the problem. Here, the Court cited the county’s multiple chances to object and provide the Board with a chance to address the possible environmental impact of moving all electrical collection lines below the ground. First, the county failed to object when the ALJ determined that a hearing for the first three amendments was unnecessary. Then, the county remained silent when the neighbors objected to said amendments at the actual hearing. The Court gave the ALJ broad discretion in its determination of hearing necessity to which, the Court emphasized, a party must object in order to preserve its arguments for appellate action.

Best Practices:

1. Power Siting Board certificates required for constructing major utility facilities – Under R.C. 4906.04, no person, to include both owners and contractors, can commence to construct a major utility facility without obtaining a certificate. Under R.C. 4906.01, a major utility facility includes (1) electric generating plants and associated facilities designed for operation of 50 megawatts or more, (2) electric transmission lines, and (3) gas pipelines that are greater than 500 feet in length and seven inches in outer diameter.
2. Certificates required before ‘commencement’ not after – The Ohio General Assembly intended R.C. 4906.04 to apply to construction preparatory work such as ‘land clearing’ and ‘excavation work.’ Therefore, one must acquire the certificate before any groundbreaking work begins.
3. Exception for replacements – Under R.C. 4906.04, the replacement of an existing facility with a like facility does NOT require a certificate from the Power Siting Board.
4. Applying for a certificate – For more information on applications for power siting certificates, see the Power Siting Board state website for e-filing: http://www.opsb.ohio.gov/opsb/?LinkServID=742FAD3B-B57C-6997-DFBEB6BED8B2E8CB
5. Courts have broad discretion in determining the need for a hearing – As evidenced in Buckeye Wind, the Court gave the ALJ broad discretion in determining whether the amendments constituted an increased environmental impact thus requiring a hearing.
6. Object early – As the Ohio Supreme Court concluded, the county’s failure to object left the Court unable to consider the rehearing request. Had the county objected and preserved its arguments, the Court might have held otherwise.

– Christian H. Robertson II

All materials have been prepared for general information purposes only to permit you to learn more about construction law. The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.