MPUC Docket No. IP-6830/ CN-09-1110
MPUC Docket No. IP-6830/ WS-10-49
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC UTILITIES COMMISSION
|
In the Matter of the Application for a Certificate of Need and Large
Wind Energy System Site Permit for the 95 Megawatt Paynesville Wind Farm in |
SUMMARY OF
PUBLIC TESTIMONY |
On February 5,
2010, the
Minnesota Public Utilities Commission (PUC or the Commission) issued an Order
accepting the application from Paynesville Wind, LLC (Paynesville Wind, the Applicant
or Geronimo) for a Certificate of Need (CON) for a 95 megawatt (MW) Paynesville
Wind Farm in Stearns County. In this
same Order, the Commission approved the use of an informal review and requested
the Office of Administrative Hearings (OAH) to conduct at least one public
hearing on the project.[1]
Administrative Law
Judge Raymond R. Krause conducted two public hearings on the project. The hearings were held in the afternoon and
evening of Wednesday, August 25, 2010.
Each of the hearings was held in the American Legion building,
Approximately 50
persons attended the public hearings and 22 persons provided oral testimony
during the hearings. Each person who
sought recognition in either or both of the hearings was given an opportunity
to offer as much testimony as he or she wished and to propound questions to the
Applicant’s panel and agency staff.[3]
Following the
adjournment of the public hearing, the record remained open for an additional
14 days within which interested persons were invited to submit written
comments. The post-hearing comment period closed at 4:30 p.m. on Wednesday,
September 8, 2010.
The Commission
will issue an order on the applications for a Certificate of Need and a site
permit after review of this Summary, the hearing transcripts and the filings
submitted into the hearing record.
Description
of the Project
Paynesville Wind, LLC is proposing a large
wind energy conversion system of 95 MW in
In addition to the
wind turbines, the Project will include access roads, a meteorological tower, a
Sonic Detection and Ranging unit or Light Detection and Ranging unit, an
electrical collection system, project substation, a metering yard, transmission
line, and an operations and maintenance building. Power will ultimately be delivered
to the existing Paynesville substation.[5]
Electricity
generated by each turbine will be stepped up by a pad-mounted transformer at
the base of each turbine to a collection line voltage (34.5 kV). The collection
lines and SCADA fiber optic cable will be buried. The collection lines will
carry power from a group of turbines totaling 50 MW will be transported via the
collection system, operating at 34.5 kV, to a project substation, which will
step up the voltage to 69 kV and be transported on a new 69 kV line of less
than one mile in length to the Paynesville substation. The electricity from the
remaining turbines totaling 45 MW will be transported via the collection system
and delivered to a new metering yard adjacent to the Paynesville substation
where it will connect to the Paynesville substation. [6]
The Project
substation and transmission line are being permitted by
The Project area consists
of approximately 15,000 acres located in
Under
Procedural
History
The regulatory approval process for this Project has been progressing through two separate dockets before the Commission. On December 8, 2009 Paynesville Wind filed its application for a Certificate of Need in Docket Number CN-09-1110. On January 29, 2010, Paynesville Wind filed an application for a site permit in Docket Number WS-10-49.
On August 11, 2010,
the OES issued a Notice of Public Hearing, Notice of Availability of
Environmental Report, and Notice of Availability of Draft Site Permit, giving
advance notice of a public hearing concerning whether the proposed Project is needed
and issues related to the proposed siting of the Project to parties on the
service list, interested persons, landowners, and governmental units. On August 24, 2010, Paynesville Wind filed an
Affidavit of Publication of the Notice of Public Hearing.[12]
Summary of Public
Testimony
The public comments in this matter can be divided among four distinct categories. Interested members of the public submitted comments and materials on: (1) the externalities that come from operating wind turbines; (2) the best practices for turbine siting and operation; (3) concerns as to the specific features of Paynesville Wind’s application; and (4) the key claims of the project’s proponents. This summary also segments the record in this way.
I.
Externalities
from Turbine Operation
The bulk of the
hearing testimony and later comment focused upon the externalities that will
follow from siting approximately 42-63 wind turbines within the Project Area. Below, the key concerns regarding the impacts
of the turbines are grouped by category.
A.
Impact
on Wildlife
Several
residents expressed concern over the impacts that wind turbines would have upon
birds and wildlife in
The Minnesota Department of Natural Resources (DNR) reviewed the project’s site permit application, environmental report, and draft site permit, and offered several comments. The DNR noted that the Paynesville Wind Farm project area is in close proximity to several DNR owned Wildlife Management Areas (WMA), a Scientific and Natural Area (SNA, several United States fish and Wildlife Service (USFWS) Waterfowl Production Areas (WPA), along with Conservation Reserve Program (CRP) and Reinvest in Minnesota (RIM) easement properties which are either in or near the area. The DNR additionally pointed out that also included in or near the project area are Minnesota County Biological Survey (MCBS) Sites of Biodiversity Significance, and that a calcareous fen is located in the vicinity.[14]
The DNR noted, in its September 8, 2010, letter to the Administrative Law Judge, that the Applicant provided its report, Preliminary Findings of Avian and Bat Species Detected at the Paynesville Wind Resource Area on August 23, 2010. The DNR reviewed the report and met with the Office of Energy Security (OES), the USFWS and the Applicant on September 1, 2010. Based on the report and the meeting, the DNR determined that the Applicant appears to have used survey methods requested by the DNR. The survey revealed that the state-listed threatened Trumpeter Swan as well as some specifies of declining populations were found.[15]
The DNR requested a breakdown of data for each observation point and a narrative of observed flight-path behavior, along with discussion of migratory bird usage of temporary wetlands. In addition, the DNR has requested maps showing conservation lands, MCBS Sites of Biodiversity, and project constraints overlaid with turbine locations. Pending the completion of avian and bat surveys and OES, USFWS and DNR review of final results, the DNR requested that no permit be issued.[16]
In addition, the DNR requested that the Draft Site Permit Condition III.H.3, Extraordinary Events, include the discovery of five or more dead birds or bats combined of any species from all project turbines over a one-week period as a guideline for the meaning of the term “large” in the permit condition language regarding bird and bat species other than migratory, threatened or endangered species.[17]
The DNR recommended further detailed coordination between the Applicant, the OES and the DNR ahead of the survey season so that the PUC has the information it needs for siting decisions.[18]
The USFWS
submitted comments stating its concerns about the impact of the project on
wildlife. Specifically, it is aware of a
population of marbled godwit nesting in the area which is the easternmost known
population of the species in the world and is isolated from known populations
in western
In addition, the USFWS expressed concern with the line of turbines proposed between the Lake Henry/Bauman WPAs and the Zion WPA and these turbines’ potential impact to migratory birds. The USFWS stated that it is unable to make final recommendations regarding this issue pending the Final Avian Survey Report.[20]
The USFWS reiterated specific raptor monitoring guidance following information within the Preliminary Findings Report that nine raptor species were identified during surveys conducted at 10 sample stations throughout the proposed project site. The species includes, among others, the bald eagle, the northern harrier, red-tail hawk and American kestrel, all of which utilize the site regularly.[21]
The USFWS also recommended that the project be monitored post-construction to determine impacts on migratory birds and bats. A specific post-construction monitoring plan should be prepared and reviewed by the USFWS and the surveys should be conducted for a minimum of three years following construction. The USFWS also recommended post-construction mortality studies be conducted by an independent third-party contractor with expertise in bat/mortality monitoring and that the results of the post-construction monitoring should be used to adjust operations to reduce mortality as well as to improve design and siting of future wind-generation facilities.[22]
B.
Impact
on Native Prairie
The DNR and USFWS also specifically expressed concerns about native prairie which may be present in fragments in the project area. Jamie Schrenzel recommended, on behalf of the DNR, that the project avoid all native prairie remnants identified. If native prairie is affected, the DNR requires surveys to be done because of the DNR responsibility for endangered and threatened species protection.[23] The Applicant informed the DNR that it will survey for native prairie and it will avoid native prairie, if found.
The DNR also encouraged avoidance of MCBS Site of Biodiversity rated moderate or above in the project area because of concerns for habitat for grassland bird species. The DNR is awaiting further survey information and maps before it makes recommendations for avoidance of these habitats.[24]
The DNR also requested that the language in the Draft Site Permit, Condition III.D.1., Biological Surveys, be changed by removing the words, “Upon the request of the Commission.” The reason for this change is to reflect that pre-construction avian and bat surveys are already in progress; and to require an assessment of native prairie as part of the permitting process rather than as part of some future PUC action. This is also consistent with what the Applicant already currently intends.[25]
C.
Turbine
Noise
Colleen Mueller expressed concerns that an unbiased evaluation of turbine noise, based on actual models, rather than computer models, was not being conducted.[26] Lu Anne Reeck specifically questioned whether a possible 100-meter tower would affect noise levels.[27]
D.
Shadow
Flicker
Two individuals raised concerns about shadow flickering. Ms. Reeck asked who would do the modeling and when the report about shadow flickering would be available. She asked what standards the Applicant had in mind for shadow flickering and whether anyone had considered the effect of flickering on vegetation. Finally, Ms. Reeck pointed out that curtains were not an acceptable solution to visible flickering in her home.[28] Ms. Solsrud asked for a guarantee that flickering would not occur after a period of time.
When Patrick Smith, representing the Applicant, stated that such a guarantee could not be made, Ms. Solsrud asked where she would be able to complain if flickering were a problem. Ms. Bjorklund, with the OES, informed her that the OES has a formal complaint process.[29]
Ken Schefers
pointed out that there will be turbines in the area of the
E.
Stray
Voltage
Gary Reeck, a dairy cattle farmer, expressed concerns about stray voltage in the ground. Mr. Reeck asked what mitigation or guarantees are planned to deal with the problems of stray voltage. He also wondered about the possibility of damage to underground cables.[32]
F.
Lights
Ms. Agnes Lieser
stated that her son lives near a wind farm outside of
G.
Impact
on Air Traffic
Ms. Lieser also
wondered whether the Federal Aviation Administration (FAA) has been consulted
regarding the impact of the project on the Paynesville landing field, the
In its Post-Hearing Comments, the Applicant stated that it coordinates mitigation of impacts to public and military aviation via the Federal Aviation Administration’s (“FAA”) Obstacle Evaluation and Airport Airspace Analysis (“OE/AAA”) program. Paynesville Wind will work with appropriate authorities if problems are identified but stated that it “performed a prescreening of the aviation use of the area . . . is anticipating the Project to have minimal impacts on aviation.”[36]
II.
Best
Practices for Turbine Siting
A.
Length
of the Setbacks from Wind Turbines
Related to the concerns expressed about the externalities from turbine construction, placement and operation, is a debate over the length of the appropriate setbacks. The DNR and USFWS each had specific recommendations about setbacks. In addition to the USFWS recommendations discussed above connected to the marbled godwit, the DNR suggested a permit condition requiring a setback from DNR-administered Grant-in-Aid snowmobile trails present in the project, or, in the alternative, a requirement for coordination with trail contacts and DNR staff regarding trail locations.[37]
Colleen Mueller
expressed concerns that some members of the
In post-hearing comments filed on behalf Lu Anne and Gary Reeck, Gary Schleck, Attorney at Law alleged:
[N]either the PUC nor the applicant has addressed how the project will meet the requirements of the Minnesota State Agricultural Land Preservation and Conservation Policy, Minn. Stat. § 17.80(e), which requires that ‘state agencies act to maximize the preservation and conservation of agricultural land and minimize the disruption of agricultural production, in accordance with local social, economic and environmental concerns of the agricultural community.’
Mr. Schleck goes on to urge the
PUC to adopt the
In its
Post-Hearing Comments, the Applicant stated that, in a July 20, 2010 letter,
the Stearns County Board of Commissioners (the “Board”) has provided
recommendations to the PUC regarding how to implement their Wind Energy
Conversion System (“WECS”) with respect to this project.[42] Paynesville Wind then requested that the
recommendations included in that letter be implemented in the final site
permit, with one exception. The one
exception is that the Applicant urged the PUC to use Paynesville Wind’s wind
easements, which have a provision to address catastrophic failures such as
turbine collapse, to meet the requirements of the Stearns County WECS Ordinance
rather than the existing language regarding setbacks as reflected in the
B.
100-Meter
Tower
Justin Pickar,
lead developer and development manager of Geronimo Wind Energy, announced,
during his opening overview of the project, that Paynesville Wind is requesting
that the final project permit allow for the option to install the proposed
turbines on 100-meter towers. A number
of people expressed surprise and concern at this possibility, which they had
not heard before. In addition to
questions about whether taller towers would mean more noise, others asked
whether taller towers would require new permits, stated that 100-meter towers would
result in many structures taller than most buildings in the City of
Ms. Mueller
asserted that
C.
Impacts
to Property Values
Several of those
participating in the public hearing and submitting comments expressed concerns
over the impact of the wind farm project on property values in
In post-hearing comments filed on behalf Lu Anne and Gary Reeck, Gary Schleck, Attorney at Law argued that the reduction in property values resulting from the impact of wind turbines on large rural tracts “presents an issue of fairness and equity to the individual landowners, but presents a great issue with respect to local property tax revenues.” Mr. Schleck warned that “the lack of any kind of plan by the applicant on this issue, will likely lead to protracted and wasteful litigation in the future.”[51]
William Miller stated that his county assessor informed him his property values would likely increase with the wind farm project development.[52] Ms. Reeck responded to this comment by asserting that counties are motivated to set property values high, and that “assessors are not appraisers.”[53]
D.
Wind Production
Ms. Mueller and Ms. Lieser each questioned whether the Paynesville Wind location has wind resources sufficient to make it an appropriate choice for the project. Ms. Mueller stated that the area has “wind that’s been 7.3 and 8.1 at 80 meters.” She referred to specifications for some common turbines listing a 2.3 megawatt turbine at 34 miles an hour, 1.5 at 31 and 1.8 at 25.[54] Ms. Lieser asserted that U.S. Department of Energy figures “only show this to be fair area for wind development, which also says it operates between 30 and 40 percent capacity.”[55]
In its Post-Hearing Comments, the Applicant responded to these concerns with the conclusions it reached after evaluating the same question. The Applicant wrote:
[T]he area’s (sic) wind resource is valuable for three reasons: 1) available wind turbine technologies can efficiently produce energy at the wind speeds present in the Project area; 2) the availability of transmission makes energy produced from the Project cost-competitive with other near-term wind resources; and 3) increasing the geographic diversity of Minnesota’s wind resource by installing the Project improves the overall economics of wind on Minnesota’s transmission system.
III.
Concerns
as to this Application
A.
Need
Not Established
Ms. Reeck
questioned whether the need for the project is established. She challenged an assumption that the
turbines will operate at 37.4% capacity as not realistic, given the
characterization of the wind in the Paynesville Wind area as “medium” compared
to other
B.
Ownership
Interest
Ms. Mueller asked about a response to a question to Geronimo at the April 19, 2010 scoping meeting concerning Geronimo’s role in the project might be in five years. Ms. Mueller states that Geronimo responded that they will likely be a minority owner in five years, active in working with landowners and with the majority owner, which is likely to be Enel, already a minority partner with priority rights. Enel is apparently an Italian company.[57] Mr. Daum, on behalf of the Applicant, confirmed that Geronimo has a relationship with Enel. Mr. Daum stated that the cost of this project, (between $160-$200 million) requires Geronimo to bring in outside investors. In addition, Mr. Daum asserted that the involvement of partners with strong balance sheets involved in such projects is beneficial to both the community and the State.[58]
C.
Length
of Land Leases
Ms. Mueller also questioned whether the Applicant and the landowners who have entered into leases have done so in violation of section 1, article 15 of the Minnesota Constitution. Ms. Mueller pointed out that that article states “[l]eases and grants of agricultural land for a longer period than twenty one years hereafter made in which shall be reserved any rent or service of any kind shall be void.”[59] No documents were introduced at the hearing or in post-hearing comments demonstrating the length of any relevant land leases.
D.
Traffic
and Roads
Ms. Lieser expressed concerns that the large trucks used during construction of the towers would interfere with her work commute.[60] Mr. Smith responded, on behalf of the Applicant, that Paynesville Wind intends to coordinate with the townships and the cities concerning transportation of the turbines, cranes and other equipment, as well as various construction vehicles.[61]
Mr. Hemmesch and Mr. Schefers both asked for assurances that the roads and tile lines would be restored to their pre-construction condition following installation of the towers and turbines.[62] Mr. Daum replied, on behalf of the Applicant, that the company, which was founded by a farmer, is very attentive to making certain that everything is properly fixed.[63]
IV.
Key
Claims of the Project’s Proponents
A number of people believe the project will be good for the Paynesville area community, as well as for the nation, the global economy and the environment. Several people discussed the local importance of the project as an endeavor that will improve tax bases and provide both temporary and permanent jobs that will pay well. During the construction process, Mr. Steven Jones predicted, the company will come into the community and rent hotel space and houses, hiring local labor. At times, young people from the area will get trained and then go on to work professionally in the field. Other speakers saw the wind turbines as a dependable source of income in a volatile agricultural economy.[64]
Individuals expressing support also talked about the need to develop wind as one of several solutions in finding clean, renewable resources, given the realities of our consumer society, increasing world population and decreasing availability of fossil fuels.[65] Another individual mentioned likely increased demand for electricity with a growing use of electricity to power cars.[66] A third talked about possible uses of wind energy to produce anhydrous ammonia, which is particularly useful for farmers as a source of fertilizer, and of hydrogen to power tractors.[67]
One person acknowledged concerns about issues such as shadow flicker and noise, but stated that, after doing his own research into the significance of those issues, he feels that the benefits of wind energy far outweigh any problems associated with it.[68] Another supporter stated his belief that wind energy development is compatible with farming and with the values of using the land for public as well as private good.[69]
Pursuant to the Commission’s February 5, 2010 Order to conduct at least one public hearing and to ensure the adequate development of the hearing record, this report is respectfully submitted.
Dated: September 22, 2010
s/Raymond R. Krause
________________________
RAYMOND
R. KRAUSE
Chief
Administrative Law Judge
Reported: Shaddix and Associates
Transcripts Prepared: Two Volumes
NOTICE
This report contains a summary of public testimony. It is not a final decision. Pursuant to Minn. R. 7849.5720, the Commission will make the final determination of the matter within 60 days after the receipt of the record from the administrative law judge.
[1] In the Matter of the Application of Paynesville Wind, LLC for a
Certificate of Need for the 95 MW Paynesville Wind Project in Stearns County,
MPUC Docket No. CN-09-1110 (February 5, 2010) (E-Docket No. 20102-46830-01).
[2] See, Hearing Transcripts, Vol. I and II.
[3]
[4] In
the Matter of the Application for a Certificate of Need and Large Wind Energy
System Site Permit for the 95 Megawatt Paynesville Wind Farm in Stearns County
Application for Certificate of Need (Application) (Dec. 8. 2009) , MPUC Docket No. CN-09-1110 at 1 (E-Docket No. 200912-44838-01);
and
In the Matter of the Application for a
Certificate of Need and Large Wind Energy System Site Permit for the 95
Megawatt Paynesville Wind Farm in
[5] Application at 1.
[6] Environmental Report at 6.
[7]
[8] In the Matter
of the Application for a Certificate of Need and Large Wind Energy System Site
Permit for the 95 Megawatt Paynesville Wind Farm in Stearns County, Notice of
Public Hearing, Notice of Availability of Environmental Report and Notice of
Availability of Draft Site Permit (Aug.
11, 2010), MPUC Docket No. CN-09-1110 at 7, (E-Docket No. 20108-53450-01).
[9] Minnesota Statutes, Section 216B.1691, subd. 2a (2009).
[10]
[11] See,
In the Matter of the Application for a
Certificate of Need and Large Wind Energy System Site Permit for the 95
Megawatt Paynesville Wind Farm in Stearns County, MPUC Docket No.
CN-09-1110 at 4-6, (E-Docket No. 200912-44838-01).
[12] See,
[13] J. Schrenzel, Hearing Transcript (T.), v. I,
pp. 18-20; L. Reeck, T., v. I, pp. 29-35; and Letters from Minnesota Department
of Natural Resources (DNR) (May 10, 2010, August 13, 2010 and September 8,
2010); see Public Comments 8/25/10 (3
of 4), E-Docket No. 20109-54486-07, pp. 1-2.
[14] DNR letter (Sept. 8, 2010), p. 1 and DNR letter (May 10, 2010), p. 1.
[15] DNR letter (Sept. 8, 2010), p. 1.
[16]
[17] DNR letter (Sept. 8, 2010), p. 2.
[18] J. Shrenzel, T., v. I, p. 20.
[19] USFWS letter (Sept. 3, 2010), pp. 1-2.
[20]
[21]
[22]
[23] J. Shrenzel, T., v. I, pp. 20-21.
[24] DNR letter (Sept. 8, 2010), p. 1.
[25]
[26] C. Mueller, T., v. I, p. 23.
[27] L. Reeck, T., v. II, pp. 65-66.
[28]
[29] S. Solsrud, T., v. II, p. 32; P. Smith and I. Bjorklund comments, T., v. II., pp. 32-33.
[30] K. Schefers, T., v. II, p. 29.
[31] P. Smith, T., v. II, pp. 29-30.
[32] G. Reeck, T., v. I, p. 51.
[33] A. Lieser, T., v. II, p.24.
[34]
[35] Letter from Daniel Schleck (Sept. 3, 2010), p. 1.
[36] Post-Hearing Comments of Paynesville Wind, LLC (Sept. 8, 2010), p. 15.
[37] DNR letter (Sept. 8, 2010), p. 2.
[38] C. Mueller, T. v. I, p. 44.
[39] W. Miller, T., v. I, p. 23.
[40] B. Eknes, T., v. I, p. 23.
[41] Letter from Daniel Schleck (Sept. 3, 2010), p. 2.
[42]
Letter from
[43] Post-Hearing Comments of Paynesville Wind, LLC (Sept. 8, 2010), pp. 9-11.
[44] W. Miller, T., v. I, p. 23; C. Mueller, v. I, p. 27; G. Reeck, v. II, p. 51.
[45] J. Pickar, T., v. I, p. 24.
[46] C. Daum, v. II, pp. 52-53.
[47] C. Mueller, v. II, p. 58.
[48] Post Hearing Comments of Paynesville Wind, LLC (Sept. 8. 2010) at page 13, citing http://www.co.stearns.mn.us/DesktopModules/XSDocumentLibrary/Components/FileDownloader/XSFileDownloaderPage.aspx?tabid=65&xsdid=5105&xspid=0&xslrf=/DesktopModules/XSDDocumentLibrary/App_LocalReources/XSDocumentLibrary&xscl=en-US&xsmcs=%2fDesktopModules%2FXDocumentLibrary%2f&xsuarn=Administrators&xscd=False&xstmid=481&xsift=1.
[49] C. Mueller, T., v. I, p. 29.
[50] L. Reeck, T., v. I, pp. 47-51; see letter from Michael McCann to Mr. Ben Hoen, PUC Docket 09-1110, E-Docket No. 20109-54487-01.
[51] Letter from Daniel Schleck (Sept. 3, 2010), p. 2.
[52] W. Miller, T., v. I, pp. 46-47.
[53] L. Reeck, T., v. I, pp. 50-51.
[54] C. Mueller, T., v. I, p. 28.
[55] A. Lieser, T., v. II, p. 23.
[56] L. Reeck, T., v. II, pp. 47-49.
[57] C. Mueller, T., v. I, p. 44.
[58] C. Daum, T., v. II, pp. 43-44.
[59] C. Mueller, T., v. I, p. 45.
[60] A. Lieser, T., v. II, p. 59.
[61] A. Smith, T., v. II, p. 60.
[62] B. Hemmesch, v. II, p. 23; K. Schefers, v. II, p. 28.
[63] C. Daum, v. II, pp. 45- 46.
[64] K.Schefers, T., v. II, p. 25; S. Jones, T., v. II, p. 36; L. Floura, v. I, pp. 36-37; D. Fredrickson, T., v. I, pp. 42-43;
[65] T. Floura, T., v. II, pp. 19-22; B. Hemmesch, T., v. II, p. 22; K. Schefers, T., v. II, p. 26.
[66] T. Floura, T., v. II, p. 21.
[67] K. Schefers, T., v. II, p. 28.
[68] T. Floura, T., v. II, pp. 19-20.
[69] K. Schefers, v. II, pp. 25-26.