The Ohio Power Siting Board appropriately determined that a hearing was not necessary on certain proposed changes to a certificate to construct a wind turbine facility, the Ohio Supreme Court ruled today.

In a unanimous opinion authored by Justice Terrence O’Donnell the Supreme Court rejected claims by Champaign County and three townships that the power siting board needed to conduct a hearing on all six proposed changes Buckeye Wind L.L.C included in its amendment. The county failed to timely object to the board’s decision to conduct a hearing on a portion of the proposed changes, the Court concluded.

Second Facility Prompts Changes
In March 2012, the Court affirmed the siting board’s granting of a certificate to construct a 53-turbine wind farm in Champaign County labeled as Buckeye Wind I. The plan consisted of the turbines, access roads, temporary construction staging areas, a mixture of overhead and underground electrical collection lines, a substation, and an operations and maintenance buildings. Later that year Champaign Wind L.L.C., a sister company of Buckeye Wind, filed to construct what was called Buckeye Wind II, and in April 2016 the Court affirmed the siting board’s grant of a construction certificate for that facility.

While Buckeye Wind II’s application was under consideration, the company asked the siting board to amend the Buckeye Wind I certificate so that Buckeye Wind I and II could share portions of their associated facilities. Buckeye Wind asked for six changes, including moving all the electrical lines underground, relocating access roads, constructing a new access road, adjusting the size of the construction staging areas, moving one staging area, and relocating the substation so that both facilities could share the substation.

Board Limits Hearing
The county, along with Goshen, Union and Urbana townships, a group of local residents, and others intervened in the amendment-application process. A siting board administrative law judge (ALJ) determined three of the proposed changes — burying the electrical lines, relocating the roads, and resizing the staging areas — did not require a hearing under R.C. 4906.07(B).  No one objected to or appealed the ALJ’s decision, and Buckeye later withdrew one of the proposed changes, leaving two for consideration at the hearing. At the January 2014 hearing the neighbors objected to the scope and requested the proposal to bury electrical lines also be addressed. The ALJ overruled the objection. The county (and townships) did not object to the ALJ’s ruling limiting the scope of the hearing or offer any evidence to suggest that the other proposed changes needed to be discussed at the hearing.

The siting board approved the amendment, and the county filed for a rehearing, arguing that the hearing should have covered all the proposed changes. The siting board rejected the request, and the county appealed to the Supreme Court.

County’s Delay Forfeited Argument
The county, representing both its position and that of the townships, argued that the changes excluded from the hearing will result in substantial changes to the facility or will materially increase the environmental impact of the facility. Under R.C. 4906.07(B), the county maintains, changes of that nature require the board to hold a hearing, and the board’s failure to do so was unreasonable and unlawful.

The board and Buckeye maintained the proposal did not substantially change the facility or materially increase the environmental impact so the board was authorized to limit the scope of the hearing. The board and Buckeye also argued the county forfeited the right to raise its argument on appeal by not timely challenging the decision to limit the scope of the hearing.

Justice O’Donnell wrote the Court has previously held in public-utility and power-siting cases that a party forfeits an argument on appeal if it deprives the agency an opportunity to cure the alleged error when it reasonably could have done so. The county had numerous opportunities to challenge the decision to limit the scope of the hearing, but waited until its application for a rehearing to first raise the objection, he noted.

“Specifically, on November 21, 2013, the ALJ determined that three of Buckeye’s proposed changes did not require a hearing.  The county did not request reconsideration, file an interlocutory appeal, or otherwise object to the ALJ’s prehearing entry,” Justice O’Donnell wrote.

He noted that when the neighbors requested that the proposal to bury the electrical lines be included in the hearing, the ALJ asked if the county’s lawyer had any comment on the suggestion and the lawyer did not. Justice O’Donnell also indicated that during the hearing a Buckeye witness testified about burying the electric lines and resizing the construction areas despite the fact that the ALJ had ruled those items did not require a hearing.

“Yet the county did not object to the witness’s testimony and declined the ALJ’s invitation to cross-examine him,” he wrote. “Indeed, at no time before or during the hearing did the county register its disagreement with the ALJ’s prehearing decision, ask to expand the scope of the hearing, or seek to introduce evidence regarding the proposed changes that the ALJ had ruled were not subject to hearing.”

The county maintained the proper time to raise the objections was in its rehearing application. Justice O’Donnell explained a party can identify alleged errors in a rehearing application, but it does not mean the county could withhold all its objections before and during the hearing and belatedly raise them in the rehearing request.

“In accord, we hold that the county’s failure to take any action to challenge the scope of the hearing until after the hearing had already occurred and after the board had issued its order deprived the board of an opportunity to cure any alleged error at a time when it reasonably could have done so,” he concluded.

2014-1210. In re Application of Buckeye Wind L.L.C., Slip Opinion No. 2016-Ohio-5664.

View oral argument video of this case.

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