REPLY BRIEF. On behalf of the above named Complainants, this brief will summarize why the

Transcription

1 [-3g30 EC Linda Cooper E-C 0 b ^- Jerome E and Jane C. Burch E.C Frank Fitzpatrick E-C O & - - ~ $ ~ ~. :f ~ ~ -4- "A ~ -c Robert Hurley E-C Q(Q I V. Obr iyq7-454 Nedpower Mount Storm, LLC and Shell WindEnergy, Inc &*-' 537 * 1220 Van Voorhis J- 1 Morgantown, WV January 23,2007 Re: Case No E-CN Application for a Certificate of Convenience and Necessity to Authorize Construction and Operation of a Wholesale Wind- Power Electric Generating Facility and Related Interconnecting Transmission Facilities in Grant County, WV REPLY BRIEF On behalf of the above named Complainants, this brief will summarize why the provisions of the PSC's Certificate of Convenience and Necessity (CCN) issued for the NedPower wind power facility on the Allegheny Front at Mt. Storm, WV, is invalid and must be abandoned, and construction, even now underway on, stopped. As explained in our complaints, other filings, at the hearings on these matters, and summarized here, contrary to the issued certificate and applicable PSC procedure, the application for this project has been significantly changed without prior approval of the PSC. In addition, information provided by NedPower verifying compliance with specific conditions of the certificate have been untruthfully represented by the company, have glaring omissions, and/or are incomplete in terms of meeting provisions set forth in specific conditions. Further, the contention that by merely filing any information related to one or more conditions, regardless of content or validity, as well as the contention that 1

2 ql ;:$- f-m a determination of whether or not a condition or conditions have been met rests with t e absence of formal filing(s) from official jurisdictional state or federal agencies, are flawed. Finally, the PSC s current siting regulations, inadequate as we consider them to be for the intended purpose, were not in place when this Certificate of Convenience was issued. A careful reading of the record will show that Commissioners questions about this project and the addition of the subject Conditions to the Nedpower CCN, were in response to their concerns and to the many valid and important concerns raised by others about the project. Further, the special provisions/conditions added to this CCN were and are essential to the balancing of the cost and benefits of the project. As the wording of the Certificate itself verifies, without compliance with the subject conditions as stated, such balancing would not exist and the project not certifiable. L. i c_,,j I K-1 a,i[zj--$ b7 JAN 23 p/f 4: 55 SERVICE ON OFFICE The scope for this project has significantly changed without prior approval of the PSC. The Nedpower CCN states that such approval is required. However, approval has neither been requested by NedPower/Shell nor granted by the PSC. Therefore, this certificate must be abandoned. NedPower/Shell claim that the changes in the location of their turbines as reflected in the modification of their filing to the FAA does not constitute signifi.cant change. We beg to differ. These modified locations: 1. Place huge turbines well within 820 feet of many local homes, the distance limit self-imposed by NedPower and recognized by PSC Staff Engineer Purdue as too close for safety. Indeed, extensive documentation of turbines falling, burning up, 2

3 . 1 spewing oil, and generally being hazardous to human health and property has been submitted to the Commission and is here again attached (Attachment 1). 2. Place huge turbines closer to any number of local homes whose owners, in addition, to being subject to any and all adverse effects associated with the structures, may not even know and have had opportunity to consider these facts since they have received no notice of this matter. Granted, there were legal notices of the project year ago when the application was first filed and NedPower held one open house inviting all interested persons to attend. However, many homeowners did not receive either of these notices and no notification by letter to homeowners has ever been made by the company or the PSC to inform area homeowners of the project or turbine locations. Also, it must be noted that information provided to the Commission and the public on this project has consistently referred to its locations as some 2 miles east of the Mount Storm power plant and lake (for example, see Exhibit 1 of application, under Proj ect Location ) The proposed NedPower Mount Storm project (the Project ) is located... about 2 miles east of the Mount Storm power plant and Mount Storm Lake in Grant Coun ty.... This being the case, homeowners on and around Mt. Storm Lake have never considered that the huge turbines would loom over their very homes. Two miles away or even one mile away is much different from 2820 feet. Not only have homeowners been deprived of accurate infomation on the locations of these tremendously imposing and dangerous structures over their homes, but neither 3

4 have they felt the need to explore, in any detail, the health and other aspects of such structures and mechanical operations on their lives and well being. 3. Place huge turbines closer and/or on top of areas where many birds (including those of significance and/or endangered species (e.g., bald eagle and golden eagles, in particular)), feed including in and on the shores of the Mt. Storm Lake. In addition: 4. State, federal, and local regulatory and other agencies have not received notice or been asked to review the significance of the modified locations of the turbines. 5. In fact, in studies performed on the effects of the project by the company itself and any and all agencies involved with this licensing process, consideration was given only to turbine sites as originally configured, and not as modified in the recent FAA filing, of the turbines. Further, neither the public, nor the PSC, throughout the entire certificate or review process has ever known the locations of the turbines within the specified corridor. Without such information, it has been impossible to assess the potential effects of their construction. A certification process devoid of such provisions is seriously flawed and puts local and statewide residents in jeopardy of being subjected to adverse conditions beyond their knowledge. Such omission is also counter to all principles of open and fair consideration of impending actions subject to state certificatiodregulation. For these reasons, we ask that the PSC rule this certificate of convenience and necessity invalid, stop construction, and order restoration of disturbed lands, roads, etc., forthwith. 4

5 Information provided by NedPower verifying compliance with specific conditions of the CCN have been untruthfully represented by the company, have glaring omissions, and/or are incomplete in terms of meeting provisions set forth in the specific conditions. Let us begin with the matter of the required bat studies including the reports on these studies in the case record and the testimony of Mr. Young at the recent hearings. The record shows and Mr. Young noted in his sworn testimony that studies related to bat populations were designed to address questions and concerns raised by the U. S. Fish and Wildlife Service (USFWS) and well before the issuance of the CCN with its 14 Conditions. Mr. Young explained that USFWS s priority concern was with endangered bat species and that, therefore, Nedpower s bat studies were designed to determine potential impact on the two endangered bat species known to exist in the area of the proposed project. In fact, it is the report of the study of impact on the two known endangered bat species that NedPower has now verified as meeting CCN Condition 8 : Condition 8 NedPower shall conduct a bat biological assessment to: assess the potential impact on bats, including the likelihood of an incidental take of the Indiana Bat and the Virginia Big-eared bat, determine what future studies or research might be necessary, and address concerns raised by the US. Fish and Wildlife regarding bats. NedPower will submit its findings to both the US. Fish and Wildlife and the DNR for review and comment. While their studies on the endangered bat species may be well performed, one can determine by simply reading Condition 8 that, in and of itself, consideration of potential impact only on Indiana and Virginia Big-eared bats, do not fulfill the mandate set forth in this Condition. Had Commissioners wanted studies on only the endangered species, it is quite certain that is what their Condition 8 would have stated. But it is not what it states and, the record will show, that, during the hearings on the proposed project, testimony 5

6 was presented and there was much discussion of bats populations in general, not just the endangered species of bats. NedPower s verified statement is deficient and does not meet Condition #8 in terms of its stated language: NedPower shall conduct a bat biological assessment to: assess the potential impact on bats (to) determine what future studies or research might be necessary.... And, rather than revkinghedesigning the research in their study of bats in response to the wording of Condition #8, as Mr. Young testified, they decided to proceed with their existing design and, essentially, hope for the best-that, in the end, they could persuade the current Commissioners, that the studies Nedpower has verified, do, indeed, meet the provisions of this Condition. Without information on the other, not endangered species of bats, no claim of a legitimate biological assessment of potential impact on bats as stated in the Condition can be validly claimed. Further, NedPower failed to provide valid evidence that it did submit itsjhdings to both the US. Fish and Wildlife (Service) and the DNR for review and comment for even their findings on the endangered species studies. The matter of bat mortality associated with wind power developments on high mountain ridges of the Allegheny range has received attention, is of vital concern, and holds much potential for liability to wind power companies as well as to species survival. To treat this matter, related to bat species not listed as endangered, with such flagrant disregard not only violates the language of this Condition but is also unconscionable. For reason of noncompliance with Condition 8, alone and/or in concert with noncompliance with other certificate Conditions as stated below, we ask, therefore, that 6

7 ) the Commissioners order the NedPower certificate of convenience invalid and, further, halt construction on the project, and order disturbed lands, roads, etc., restored post haste. Three CCN Conditions deal specifically with bird-related matters (Conditions #lo, 11, 12): (1 0) Prior to construction, NedPower shall conduct a migration study to determine heavy migration areas; areas where birds descend to feed, etc. for use injnal micro siting of turbines. (1 1 Prior to or after commencing construction, NedPower shall conduct both a Spring 2003, and a Fall 2003, migration study during all local climatic conditions and all daily temporal periods. 2002, Letterfiom US. Fish and Wildlife Service; (1 2) Prior to or after commencing construction, NedPower shall conduct studies for determination of the spatial patterns of nocturnal migrating birds and to determine raptor behavior during the next breeding season a#er this Order issues, and for Winter residents. Upon review of Nedpower s verified statement and supporting information as well as testimony on these matters, it is clear that while some studies may have been conducted and reported on, specified ones were not. In this regard, we note the following key worddphrases in these three Conditions: a. For Conditions #lo: ( 1) migration study (2).. study to determine heavy migration areas and (3)...study of...areas where birds descend to feed. (4) use injinal micro siting of turbines b. For Condition #11: (1 )... a Spring , migration study... (2) I... a Fall migration study... (3)... during all local climatic conditions... (4).. during... all daily temporal periods. c. For Condition# 12: (1 )... conduct studies for determinations of the spatial patterns of nocturnal migrating birds... 7

8 (2)... conduct studies... to determine raptor behavior: (a) during the next breeding season aft this Order issues (b) for Winter residents. and then address each one individually: Condition 10, with key words/phrases (1) migration study (2)...study to determine heavy migration areas and (3)...study of... areas where birds descend to feed -- While it appears clear that some effort was made to address the provisions of this Condition, Nedpower s witness himself noted that: Ideally the spring sample period would be the months of April and May... (3.1.2 Observation Schedule of the 2004 Final report.). Their studies and report, however, confirm that no studies were conducted at all in April but only from the first of May through the first two weeks of June. The language in this Condition does not ask for migration studies during just some part or half of the migration season. As a result, and contrary to their contention in their verified statement, Nedpower did and has not conducted migration studies as directed by this Condition. Further, in regard to studies related to where birds descent to feed, etc., no maps or definitions in term of species of birds or habitats studied are provided to evaluate their examination of the existence of heavy migration areas or important feeding areas in the project area. While separate categories and species of birds have different areas for feeding, the report provides no significant discussions of feeding grounds at all, much less by specific categories of birds, such as passerines, woodpeckers, or raptors. Rather, consultants conclude that no heavy migration areas or important feeding areas for birds, any birds, exist in the project area, and therefore, none will be impacted by turbines 8

9 regardless of where they are sited. If ever a study needed independent review for validity, this is it! Also, in relation to this Condition, NedPower failed to meet its mandate because it failed to conduct studies in the actual migration time period. Time periods are important during migration because, as with feeding, different species migrate at different times; some early in the season, some later. The studies Nedpower had conducted totally missed or ignored the early migrating species. Were 6, 10,20,400 species missed? Were they species of special significance? Do they fly high or low? Would they whip around the huge turbines or smash into them? Without a complete study as requested, conclusions that no heavy migration areas or areas where birds descent to feed, throughout the entire project area cannot be legitimately verified. In fact, our independent analysis of the Nedpower radar report estimates 300,000 migrants will fly through the project area at rotor height during 6 weeks of fall migration alone which indicates, as many laypersons and professionals who know the area well proclaim, the project area to be a heavy migration area. In terms of micro-siting. Nedpower failed to create a micro-siting plan based even on the few studies they conducted. Condition 11? with key words/phrases (1).. a Spring migration study... (2)... a Fall migration study...( 3)...during all local climatic conditions...(4)...during... all daily temporal periods --Here again, while it appears clear that some effort was made to address the provisions of this Condition, Nedpower s witness himself noted that: Ideally the spring sample period would be the months of April and May... (3.1.2 Observation Schedule of the 2004 Final report.). Their studies and report, however, 9

10 confirm that no studies were conducted at all in April but only from the first of May through the first two weeks of June. Further, if no studies were conducted in the part of the migration season that is April, certainly no studies ".. during all local climatic conditions... or I (.. during... all daily temporal periods " could have or were conducted for this time period. In addition, NedPower's report and consultants confirm that no nighttime surveys (a definite "daily temporal period") were conducted during even their limited spring migration study. Clearly, with these oversights or mistakes, Nedpower fa;iled to comply with the Commission's Condition 11, which required both a spring, and fall migration study during all local climatic conditions and all daily temporal (both day and night) periods, and a verified statement represented otherwise is not truthful or valid. Condition 12, with key words/ phrases (1) "... conduct studies for determinations of the spatial patterns of nocturnal migrating birds...'' (2) ",.. conduct studies... to determine raptor behavior: (a) during the next breeding season after this Order issues " and (b) for Winter residents "--NedPower failed to meet the requirements of this Condition because it failed to determine the spatial patterns of nocturnal migrating birds in the spring. In his cross-examination testimony, Young stated that both the spring and fall migrations are very important to birds, and yet no nocturnal studies were conducted during the spring migration. In addition, studies conducted to meet the terrns of this Condition failed to determine raptor breeding behavior. In its attempt to determine raptor nesting behavior, NedPower consultants describe using a method tested effective for predicting the 10

11 abundance of three species of hawk, red-shouldered hawks, broad-winged hawks and Cooper's hawks (according to the references identified in section 3.4 of the 2004 Final Avian Report). Information provided elsewhere in the record note that other raptors and hawk species are found in the proposed project area, however, evidence is presented only on the above noted three. Further, in their work to determine the presence of nesting raptors, a sound broadcast method used the call of the great horned owl. However, when ask if great horned owl were known to inhabit the proposed project area, Nedpower's witness testified that, according to the results of a 2004 final avian report, this species (great horned owl) are not present within the study area. It is therefore unlikely that hawks would respond to the calls of a predator if that predator does not exist in the area. Subsequently, the results of the studies conducted to determine even the presence of the three noted species in the project area, are at best, tenuous. Upon cross examination of Young in regard to the use of other methods used in their avian studies, Young noted that transects were used. However, there is no description of the methods by which transects were used (such as width of observable area transected or looking up for nests and down for defecated pellets) in the Methods section to the report, nor in the Results of the report. One of the other of these must be true but not both. Either Young's response that transects were used is fallacious, or, those responsible for the preparation of the report were very poor at their job. In any case, it is impossible in the report on these raptor studies to determine if methods for identifling the behavior of raptor species other than the three noted above were conducted. It must be noted however that Condition #I2 does not instruct that studies be conducted to determined behavior of only three species of raptors leaving out such 11

12 federally-protected raptors as the Bald Eagle and the Golden Eagle, both known to frequent this site. Limiting their studies in this way resulted in a gross omission, which, in itself, results in failure to meet CCN Condition 12. As for "... conduct studies... to determine raptor behavior...yo r Winter residents, " Sections 3.5 and 4.5 of the final avian report address the Winter Bald Eagle and Raptor Survey. This survey was conducted by vehicle following a route identified in Figure 13. The project area has an average snowfall of above 140" per year. The winter of was especially cold and snowy. It is unlikely that the southern end of Grassy Ridge Road or the last portion of the road on the west side of the Mt. Storm Lake from the Stony River Dam northward toward the Mt. Storm Lake (which was not kept open by the coal mining operation) could have been traversed during much of the winter. When asked about this, Mr. Young could not say how often the entire research route was completed. The report states, "Wintering bald eagles will often congregate near areas of open water with readily available food sources...i' Mt Storm Lake is heated by coolant water from the Mt Storm power plant and does not freeze, making it an area likely to be utilized by bald eagles. Stony River Reservoir, by contrast, had been drained of water for coal operations and what water remains freezes in the winter, making this reservoir a poorer area by far for eagle utilization. Despite this, the report notes that 4 bald eagles were observed at the Stony River Reservoir and only one at Mt. Storm Lake. This was undoubtedly caused by the inability to routinely access the shoreline of Mt. Storm Lake. (A boat survey of the Lake shoreline would have been a much better means of obtaining an accurate estimate of bald eagle activity on the Lake.) By contrast, the WV 12

13 DNR eagle biologist for the area observed one bald eagle in one visit to one part of the Lake on a snowy day in March. The point we wish to make with this information is that the methodology used in this one survey, and who knows how many others of Nedpower s consultants, is of such poor quality that it is all but useless. Were independent reviews conducted of this and other studies, a clear omission in the study of winter, if not all raptors, in the project area, would be declared. Condition 6 provided unique challenges for compliance determination. Condition 6 NedPower shall comply with the Endangered Species Act (1 6 USC J 1531 ET seq.), the Migratory Bird Treaty Act (16 USC J 701 ET seq.), and the National Environmental Policy Act of 1969 (42 USC j 4321 et seq.) in both the construction and operation of the Project. Should any authorized governmental agency or court with competent jurisdiction find that NedPower is not complying with any one of the above three acts in either the construction or the operation of the Project, then NedPower must noti& the Commission in writing, referencing this case number, of any such Jinding within ten (1 0) days of any such finding being made. Furthermore, the Commission may seek any legal remedies it has jurisdiction to seek, including injunctive reliej; to address any such findings. Upon first reading, it would be easy to conclude that unless a state, federal, or court has complains to Nedpower about violations of the stated laws, the provisions of the Condition are met. However, how does the Commission take into account the fact that said entities may not even have knowledge of a given threat (potential wind power development) within their jurisdiction? Of relevance here: 1. As presented at the time of the hearings, USFWS has express concern about the presence, occurrence, and habitat of several endangered species in the project area. In addition, their correspondence with the company as revealed in Freedom of Information requested materials, reflects this concern and recommends 13

14 everything legally possible in terms of potential impact on endangered species except an actual order for preparation of Habitat Conservation Plans. (It must be noted however that these correspondences took place before the project s scope was changed with relocation of the turbine sites.) USFWS has communicated that it has not reviewed the project application with the new sites of the turbines identified. They note that they have neither been notified of this situation nor invited to conduct a review. The terms of this Condition cannot be met without such input. 2. In Mher reference to this issue/condition, the Defendant has posited that no wind power companies with active projects has ever reported killing an eagle@)* and that, as a result, little to no concern exists for such fatalities. It is important to note that, given existing laws, absolutely no incentive, in fact, only disincentive exists for the reporting of such a fatality. For this reason alone (the rarity of prosecution for commission), jurisdictional agencies give great priority to prevention. And, given the fact that both bald and golden eagle habitat is known to exist in the area, a standard that provides only for the reporting of kills, once they happen, and by the very company that caused the fatality, is seriously flawed. *Which is patently false since eagles have been killed at a number of facilities in Europe and California (see Attachment 2). 3. As noted above, commercial enterprises like a for-profit wind power development entity is dedicated, first and foremost, to avoiding financial losses and 14

15 maximizing the wealth of its shareholders. Permitting and regulatory requirements with self-report provisions run counter to the number one goal of such entities. In addition, when no provisions are made for independent review of the claimsheports of such entities, the interest the public, for which the PSC among others is charged to protect, is not well served. As noted above, compliance with the several CCN is essential to the carefully balanced considerations of cost and benefits of a proposed development. And, as we have presented, any number of these Conditions and specific provisions within Conditions were not addressed or were addressed in a manner for which validity cannot or has not been established by the Commission. For these reasons, we ask that the PSC rule this certificate of convenience invalid, stop construction, and order restoration of disturbed lands, roads, etc. Determination of Compliance with Certificate Conditions Statement of Verification and potential bias / unbiased review Complainants strongly disagree with Defendants in their contention that merely responding, in one way or another, to the specific Conditions set forth in the CCN meets PSC requirements. They argue that their filingdreports in relations to specific Conditions are not subject to review or any kind of evaluation as to scope, validity, or completeness. Their verified response to Conditions 3, 8, 10, 11, and 12 are all examples of this contention. Such contention is highly disrespectful of any and all procedures and regulations of the Public Service Commission, as well as the State of West Virginia 15

16 Further, it can be argued that some of the 14 conditions attached to the Nedpower s CCN request blacwwhite, yesho responses. They asked for documents from agencies that have established criteria and procedures for determining compliance. Whether or not Complainants agree, the particular criteria and procedures for compliance determination with these agencies is documentation in the form of permits or letters of acceptance. These documents are routinely issued and compliance with such Conditions is quite straightforward, as is true for Conditions 1,2,4, and 5 of this case. On the other hand, the same cannot be said for several important Certificate Conditions. No comparable procedure with an established agency exists for Conditions 3, 6,7, 8,9, 10, 11, and 12. Therefore, how is compliance to be determined? The specific language of the Conditions should be helpful. But still, what constitutes determination of compliance? How will such a determination be made? Is it totally discretionary, that of the Commissioners? This is a question that has been raised repeated during this proceeding and what has immerged is that Commissioners say they rely on their Staff to make such determinations. However, Staff, in response, says they do not have personnel, expertise or funding wherewithal to do so. In fact, they do not and have not and with this case no Form of independent review of compliance with CCN conditions has occurred. On the other hand, Defendants have no trouble saying say trust me. They have conducted studies, drawn conclusions, made reports. What could be wrong with them? So what we are left with, by default, is the PSC saying they will accept what they accept and if someone does not like it, they can file a complaint, suit, etc. This modus 16

17 operandi does not serve the people of this community or this state well and it is not acceptable. Compliance by absence of notice from any authorized governmental agency or court as to noncompliance. As noted above, on more than one occasion, PSC and PSC Staff have noted in this case that they do not have expertise or budget to review Defendant or other evidence to determine compliance. This covers everything from whether turbines are located dangerously close to homes (820 feet or closer)* to whether noise emitted fiom operating turbines results in adverse health effects to existing habitat in project area for endangered bald eagle. They must depend on existing agencies to let them know if violations or potential violations are inherent to proposed developments. However, unlike other agencies charged with setting and enforcing rules and regulations to protect the public (WV DNR, WV DEP, COE, USFWS, USFS, EPA, etc.), the PSC has no procedure in place to inform regulating agencies with appropriate expertise of proposed developments, to actively solicit their input or review, and then to consider their response. This huge project will affect hundreds of people, the economic well bring of the West Virginia highlands, and hundreds of thousands of birds and bats. The change in scope of the project as a result of the change in location of the 82 Phase One turbines and *We do applaud the fact that Staff Engineer Purdue was able to make two short visits to the local community in the four+ years of this case but even he readily admitted that relevant evidence could not be examined in this time. 17

18 The failure of Nedpower to comply with many of the conditions of this certificate constitute superior reasons for the PSC to look again at this certificate, to rule it invalid, to stop construction, and to order restoration of disturbed lands, roads, etc., with all deliberate speed. If Nedpower wishes to proceed they can refile and all relevant government agencies can be notified and their review sought and considered by the PSC. In the alternative, we ask that the PSC contact the appropriate agencies, inform them of the new siting information on this project, and request their formal review for consideration before making a final decision. Thank you for your review of this matter. 18