WV PSE Green Mountain Wind Siting Certificate

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PUBLIC SERV ICE COMMISSION

OF WEST V IRGINIA

CHARLESTON

At a session of the PUBLIC SER VICE COMMISSION OF W EST VIRG INIA in theCity of Charleston on the 11 h day of January, 20 10.

CASE NO . 09-0360-E-CS

PINNA CLE WIND FORC E, LLC, 645 E. PittsburghSt., Box 356, Greensburg, Pennsylvania 15601

Application for a Siting Certificate to Authorize theConstruction and O peration of an Electric WholesaleGenerating Facility and Related Transmission SupportLine of Less than 200 kV and Associated InterconnectionFacilities in Mineral County, West Virginia

Com mission Order Granting a Siting Certificatefor a Wholesale Electric Generating Facility,

Related Transmission Support Lineand Associated Interconnection Facilitieson Green Mountain in Mineral County

January 11,2010

Public Service Commission

of W e s t Virginia



TABLE OF CONTENTS

I . COMM ISSION ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I1 PROJECTDESCRIPTION., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I11. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IV . DISCUSSION O F ISSUES AND EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A . StatutoryTest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B . The App lication of Part One of the Balancing Test . . . . . . . . . . . . . . . . . 0

1

2

3.

The Interest of Pinnacle to Construct the Project . . . . . . . . . . . . . . 10

The Need for Generating Plants in the State and Region . . . . . . . . 11

The Econom ic Gain to the State and the Local E conomy . . . . . . . 15

4 . (i) Com munity Residents’ Interest in Living Separatefrom the Project. (ii) The Project’s Negative Im pacts beMinimally Disruptive to Existing Uses. and (iii) TheProject’s Social and Environmental Impacts . . . . . . . . . . . . . . . . . 7

a. Viewshed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

b . Sound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. Birds and Bats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

d . Architectural and Archaeological Resources . . . . . . . . . . .30

e . Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

5 . Proposed Conditions and the M emorandum Agreement . . . . . . . . 33

The Application of Part Two of the B alancing Test . . . . . . . . . . . . . . . . . 0 .

V . FINDINGS OF FA CT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

VI . CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

VI1. ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53


of West Virginia_ . .



I. CO MM ISSION ORDE R

This Order addresses the application filed by Pinnacle Wind Force, LLC (Pinnacle)for a siting certificate for the G reen Mountain wind turbine project more fully described inthis decision. Previously, we have recognized that given the cu rrent political, statutory andregulatory climate regarding carbon-based generation, the need for alternative sources of

“fue l” or the generation of electric energy, and the reported number of wind turbine projectsthat are investigating locations in West Virginia, wind power cases (and possibly casesinvolving other alternative or renewable sources of generation) by exempt wholesalegenerators will likely come before the Com mission on an increasingly frequent basis. TheCom mission reviews these wind turbine proceedings in detail, not on ly because of the needfor the alternative energy that they may promise, but just as importantly because of thesignificant and conflicting public reaction to wind turbines.

Opposing viewpoints were again presented for the Commissi6n to consider in thisproceeding. Local support for the Pinnacle project, though, was more consistent and broad-

based than in any other wind turbine proceeding to date. Public comment letters andstatements in support of a project outnumbered the public comment presented against aproject. Our task, however, is not to count votes; rather, our charge is to apply the facts asdeveloped in an extensive proceeding before this Commission against the statutory andregulatory framework that has been established for testing whether any given project shouldbe certificated.

It is under that framework, and based upon a thorough review of the evidence, that theCom mission will grant a siting certificate to Pinnacle, subject to the terms and conditions setforth in this O rder. W e also reaffirm our approval of the M ay 28, 2002 MemorandumAgreement between U.S. Wind Force, LLC and the West Virginia State Building andConstruction Trades Council, AFL-CIO (Trades Council).

11. PROJECT DESCRIPTION’

On March 17, 2009, Pinnacle filed an application for a siting certificate(Application),2 pursuant to W. Va. Code 6 24-2-11c, to authorize the construction and

The Table of Contents and Headings are provided purely as a convenience to the reader. Materialor discussion under one heading may also relate to material or discussion under another heading.In all events, the substantive content of the Commission Order, and not the wording or placementof any heading, controls.

Pinnacle’s Application consisted of three volumes, including multiple tables and figures and 26

appendices. It was filed in accordance with the Commission’s Rules Governing; Siting Certificatesfor ExemDt Wholesale Generators (‘‘Siting Rules”), 15 0 C.S.R. Series 30 .


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operation of a $13 1 million w holesale electric generating facility, including relatedinterconnection facilities and an approximate 0.75-mile 138 kV transmission line (theProject). Pinnacle proposed to construct about 23 wind turbines, with a projected totaloperating capacity of 55.2 megaw atts3 of electric power, along a 3.5-mile stretch on GreenMountain in M ineral County, West Virginia. The Project will be located approximately2.8miles southwest of the City of Keyser, continuing southwest to about 5.3 miles southwest of

Keyser. Application pp. 1 , 7 0 (Pinnacle Ex. 1).

The Project will be located on privately-owned land generally consisting ofuninhabited forested or timbered areas on top of Green Mountain. Id. . 1. A pproximately102 to 245 acres will be required to construct the Project, but the final footprint will besmaller because the access road width will be reduced and turbine clearings and laydownareas will be allowed to re-vegetate. I_d. pp. 17-18. Pinnacle has entered into a series ofleases and an option to purchase agreemen t to ob tain the real property interests necessary toconstruct and operate the Project. Id. . 15. New Page Corporation, the largest coatedpapermanufacturer in North America and a local landowner on Green Mountain, is collaborating

with U.S. Wind Force on the Project. Id.

Pinnacle selected this site because of (1) the availability of privately-owned land withcurrent land uses compatible with wind power development; (2) favorable transmissionaccess within the PJM 4 transmission grid system (Allegheny Power’s Albright-Black O ak138 kV transmission line passes just north of the Project); (3) the relative scarcity of nearbyresidential dwellings; (4) reasonable highway access; (5) the fact that many landow ners inthe area support the project, including NewPage Corporation, which has committed topurchase a certain number of renewab le energy credits from the Project; and (6) the minimalenvironmental aspects of the Project. Pinnacle stated that (a) no endangered species wereidentified at the Project site, (b) no significant wetlands were iden tified within the area to bedisturbed by construction, (c) no adverse impacts to plants or habitat are predicted, and (d)no unacceptable adverse impacts on wildlife were identified in the avian and bat riskassessments. Application pp. 3- 4, 5 1 (Pinnacle Ex. 1); Friend Direct pp. 9-1 1 (Pinnacle Ex.DF-D).

Pinnacle asserted that neither the Project nor the related interconnection facilities isa utility providing service to the public, and there will be no direct financial impact to WestVirginia ratepayers from the construction and operation of the Project. Application pp. 3,

9 (Pinnacle Ex. 1); Friend Direct p. 13 (Pinnacle Ex. DF-D). No West Virginia utility

A megawatt is enough electricity to power 800-1,000 homes.

PJM Interconnection Association, a regional transmission organization (RTO), coordinates themovement of electricity through all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland,Michigan, New Jersey,North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia andthe District of Columbia; operates a wholesale electricity market; and manages a long-term regionalelectric transmission planning process to maintain the reliability of the power supply system.


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ratepayer will bear any financial risk associated with the Project. Friend Direct p. 13(Pinnacle Ex. DF-D). Pinnacle anticipates filing for Exem pt Wholesale Generator Statuswith the Federal Energy Regulatory Commission (FERC) and intends to operate as anExempt Wholesale Generator. Application p. 3 (Pinnacle Ex. 1 ). Rates charged for

electricity sold by the Project will be subject to regulation by FER C pursuant to Section 205of the Federal Power Act, and Pinnacle will file a market-based schedule with FERC for

negotiated rates.

Pinnacle entered into a Generation Interconnection Feasibility Study Agreemen t withPJM on January 31 ,20 05, and a System Impact Study Agreement on September 21,20 05 .PJM has com pleted its Feasibility Study and System Impact Study . I_. . 26.

A collector system of buried cables will conduct electricity at 34.5 kV to a newcollection substation located west of the turbine array. Application pp. 1, 16-17 (PinnacleEx. 1). From the collection substation, power w ill be stepped up to 138 kV, moved througha new 0.75-mile overhead 138 kV line, and interconnect with a new C ross School 138 kV

interconnection substation on the Albright - Black Oak 138 kV circuit. Id. . 17.

Allegheny Power will construct a three-breaker ring bus, 138 kV m eter, three-phasegang operated sw itch attachment facilities, and 138 kV switching station. Id. . 27. Pinnaclewill provide property for the sw itching station and will pay for all improvements through thestep-up transformer, high side breaker, and customer-owned disconnect switch. M.

Pinnacle w ill enter into agreements with PJM to govern the Project’s operation andinterconnection with the 138 kV transmission line. I_.p. 25. T he PJM Feasibility Studyindicates that there is adequate capacity to accept 55.2 MW from the Project. Id. . 26 &

App. B.

Pinnacle has been developed by U S . Wind Force with a joint venture partner, EdisonMission Group (EM G). Application p. 30 (Pinnacle Ex. 1 ). EMG has been responsible forlargely providing financial capital and certain oversight for the developm ent process. Tr.pp. 86-87 (Friend) (Oct. 26,2009). After the Project is constructed, it is expected that EMGwill purchase P innacle, including all rights to and obligations of the Project, and EMG wouldthen own and operate the Project. Id. . 46. If the Pinnacle assets are sold, Pinnacle willcomply with the Commission’s requirements for the transfer of ownership of EWG facilities,

and EMG will assume all rights and responsibilities of Pinnacle from this procedure. Tr. pp.91, 120-121 (Friend) (Oct. 26,20 09).

The Project costs will be funded by equity and/or debt contributions secured byPinnacle. Application p. 69 (Pinnacle Ex. 1). N o public funds are expected to be used, and

there are no agreements with public entities regarding Project funding. Id. Pinnacle,however, did note that the federal government is considering programs that could providefunding to foster the development of renewable energy projects, including wind powerprojects. If such a funding program was established, Pinnacle indicated it might seek funding


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.... . ... . . . .

under the program. Pinnacle agreed to promptly make any disclosures required by theCom mission’s Siting; Rules if it obtained any such funding . a.

The Project will generate approximately $430,000 per year in property taxes forMineral County. Id. . 71 . Pinnacle will also pay various State taxes of about $603,000

during construction and $43,000 per year when the Project is operational. Id. During

construction, the Project will support about 310 jobs in West Virginia, including direct,indirect, and induced em ployment. Of those 3 10 obs , Pinnacle indicated that about 275 willbe located in Mineral County. a. innacle estimates that the Project will, therefore, createan additional $7 million in em ploymen t compensation for Mineral County and $10.2 millionin the State overall. Id. The P roject will also yield approximately eighteen permanent jobswhen the Project is operational, fifteen of which will be located in Mineral County. Thesepermanent jobs will add some $705,000 in employment compensation in Mineral County anda total of $832,000 in W est Virginia. Id.

Additionally, Pinnacle has com mitted to establish a Comm unity Benefit Fund and to

make a $50,000 contribution to that fund in the first year o f Project operation and $20,000per year over the life of the Project. The Community Benefit Fund will be managedexclusively by the local community to provide investments in the communities near theProject. l_d. p. 109.

111. PROC EDUR AL HISTOR Y

Under the requirements of W . Va. Code 5 24-2-1 lc(b ), the Comm ission must issueits final order in this proceeding by January 11 , 2 010 .

Initial Public Notice & Comm ent Letters

The Comm ission received letters in support of and in opposition to the Project. Atyear end 2009, the com ment letters in support of the Project numbered approx imately 163,

including letters from the Mineral County Comm ission, the City of Keyser, the City Councilof Elk Garden, and the Mineral County Developm ent Authority. At year end 2009, thenumber of comm ent letters in opposition numbered approximately 33.

Pinnacle published notice of its Application for a siting certificate on March 24,2 009,in Kanawha County in The Charleston Gazette and in Mineral C ounty in the Mineral Daily

News-Tribune. Affidavits o f Publication (filed March 30, 2009).

Pinnacle placed cop ies of its Application in the Keyser Public L ibrary, the Elk G ardenComm unity School and the Piedmont Public Library.


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Interventions: Waiver Requests

On June 17, 2009, the Commission granted the petitions to intervene filed by theTrades C ouncil and the Allegheny Front Alliance (AFA). Com m’n Order pp. 4-5 (June 17,2009).

On September 1 5,200 9, the Com mission granted a Pinnacle request to waive certaincertificate application filing requirements. Because the jurisdiction of the Commission,particularly as to rates, by law is limited regarding the Project, the Commission did notrequire Pinnacle to file information that relates to the traditional public utility mode l underwhich the C ommission examines extensive financial information to establish rates for servicebased on the cost to the utility to provide that service. Com m’n Order pp. 1-2,9 -10 (Sept.15,2009).

The C omm ission also granted Pinnacle waivers of tw o portions of the Siting Rules.Siting;Rule 3.1 g.2contemplates that the one-mile radius map be based on photography takenwithin twelve m onths of the Application filing, but three small areas at the northeastern edgewere m issing from Pinnacle’s one-mile radius map. To correct this, Pinnacle submitted 2007images for the three areas. Pinnacle asserted that the 2007 photos were still accurate, basedon site visits by its representatives, and the Comm ission granted this partial waiver. Id. p.5-6, 10-11 (Sept. 1 5,200 9).

The C omm ission also granted a waiver of Siting Rule 3.1 .m.4.A, which requiresapplicants to provide a contour map of the sound levels that exist prior to construction,containing lines o f equal sound levels at and up to one mile from the facility’s property line.

Because Pinnacle’s measurement of the existing ambient sound levels and its evaluation ofthe mix of sound source types and land uses in the study area showed no dominant soundsources, there were no significant contours to be reflected on this type of map, and theCommission granted Pinnacle’s request. l_d. pp. 6, 10-11 (Sept. 1 5,200 9).

Motion for Protective Treatment

Siting Rule 3.1.1.2 requires applicants to file certain financial statemen ts for each yearof the start-up phase and for the first five years of operation, and these financial statements

must disclose all assumptions. On March 17 ,200 9, Pinnacle filed the required financial dataunder seal. Pinnacle also filed a Motion for Protective Order, arguing that the informationwas proprietary and constituted trade secrets. The Com mission granted the request forprotective treatment. Com m’n Order pp. 2-5, 10-11 (Sept. 15,20 09).

In that motion, Pinnacle also requested protection for the Phase I ArchaeologicalSurvey that had been filed under seal with the Com mission. The West Virginia StateHistorical Preservation Office (SHPO) had requested that the infomation be deemedconfidential unless SHPO determined, from its ongoing review, that the confidential


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treatment is not required. On September 1 4,2009 , Susan M. Pierce, Deputy State HistoricPreservation Officer, filed a letter with the Com mission requesting confidentiality of thisinformation because of the potential historic significance of the resources. The Com missiongranted Pinnacle’s motion for permanent protective treatment. Id. p. 2 -3, 9-1 1 (Sept. 15,2009).

Public Com ment Hearings; View by the C omm ission

On September 9,20 09 , Pinnacle published notice of the scheduled public commenthearings in Kanawha County in The Charleston Gazette and in Mineral County in theMineral Daily News-Tribune. Affidavits of Publication (filed Sept. 22, 2009.)

On September 24,2009 , the Comm ission conducted the public comment hearings inKeyser at 2 p.m. and 7 p.m. Forty-nine people spoke - 40 individuals spoke in favor of theProject, and nine voiced opposition to it. The speakers opposing the Project expressed

concern about the Project’s impact on viewshed, risk to birds, decomm issioning and whetherthere was sufficient need for the electricity to be generated by the Project. The speakersfavoring the Project cited the Project’s economic benefits, the potential tourism benefits, andthe nation’s need for clean, renewable energy.

On September 25,20 09, the Com mission conducted a View of the Project area underthe guidelines established by the Com mission and agreed to by the parties. Representativesof Com mission Staff, AF A, Pinnacle, and the Trades C ouncil participated in the View, whichlasted from 9 a.m. until approx imately 4:30 p.m.

The C omm ission went to these Viewpoints, which were jointlyrecommended on July3 1,2 009 , by Pinnacle, Staff, AFA and Trades Council:

1.2.3.4.5 .

6.

7.8.

9.10 .11 .12 .13 .14 .

Mineral County Courthouse,Keyser Industrial Park,US 220, Potomac River Bridge,Behind Chat ‘N Chew Restaurant,Jennings Randolph Lake,Potomac State College C ampus,

Keyser Tennis Courts/Running Track,Pinnacle Project Site,Beaver Dad pr oj ec t Set Up Area,Pinnacle fire tower,Skyline Overlook,Timber Lake Estates,Healy Heights, andKeyser High School.


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At each Viewpoint, the parties were given the opportunity to read a description ofeach Viewpoint, as had been filed on September 22,20 09 . The descriptions were requiredto be prefiled to provide appropriate information to the C omm ission and to limit significantextemporaneous discussions among the Parties during the View. At each Viewpoint, theCom mission asked only clarifying questions about the Viewpoints that were answered by theParties. No ne of the questions addressed the merits of the Project. A court reporter was not

present during the View.

Prefiled Testimony

On M ay 26 ,20 09 , Pinnacle prefiled the direct testimony of its witnesses:

1.

2.

3.

4.5.

6.7.

8.

9 .

10 .

David Friend - Project description, site selection, need, design andconstruction, cost and financing, operation and maintenance,decommissioning, vegetation and wildlife, and permits andauthorizations,William E. Llewellyn-mapping, site investigations, design work, andstatus of permits and authorizations,Karen Tyrell, Ph.D. -b at studies,Paul K erlinger, Ph.D. - vian studies,Mike Sponsler - are, threatened and endangered wildlife,James D. Barnes - noise,Terrence J. DeWan - viewshed analysis, mapping, andphotosimulations,

Randall A. Childs, Ph.D. - economic impacts (IMPLA N study),Kathryn M. Kuranda - architectural resource investigations, relationswith SHPO, and

Jeffrey H . M ayrnon - rchaeolog ical resource investigations, relationswith SHPO.

O n September 4,20 09 , Trades Council prefiled its direct testimony:

1.

2.Darwin Snyder- ocal worker agreement, andMichael Jin- conomic impacts (IMPLA N study).

On September 1 6,2 00 9, Staff prefiled the direct testimony of its witnesses:

1.2.

Dixie Kellmeyer- inancial review, andDonald Walker- ngineering review.

AF A did not prefile any testimony and elected to proceed w ithout any witnesses at thehearing.

Public Service Commissionof Wes t Vi rginia



On October 9, 2009, Pinnacle prefiled the rebuttal testimony of Mr. Friend, Dr.Kerlinger and D r. Tyrell to respond to some conditions proposed 6y the Staff and providecertain clarifications,

Joint Stipulation

On October 9 ,20 09 , Pinnacle, Staff, and Trades Council (Stipulating Parties) filed aJoint Stipulation and Agreement, in which they recommended that the Commission grantPinnacle a siting certificate, subject to certain pre-construction, construction, and operationalconditions. Joint Ex. 1 (Tr. Oct. 26,20 09). The Stipulating Parties agreed that the evidencethat was expected to be admitted at the hearing (i.e,, the Application and the prefiledtestimony) weighed in favor of granting Pinnacle a siting certificate. a. . 9. TheStipulating Parties also recom mended the text for several conditions. Id. p. 12-17.

AFA was not a party to the Joint Stipulation. On O ctober 15, 2009, AFA filed aresponse, maintaining its opposition to the Pinnacle Project. A FA Le tter p. 1 (Oct. 15,2009).

Evidentiary Hearing

On October 9 ,20 09 , Pinnacle published notice of the scheduled evidentiary hearingin Mineral County in the Mineral County News-Tribune. Affidavit of Pub lication (filed Oct.13,2009).

In this case, the Commission has reviewed seventeen prefiled direct and rebuttaltestimonies and exhibits, consisting of more than 250 pages of record evidence, andconducted an evidentiary hearing on October 26 and 27, 2009, which resulted in the 406-page transcript and 1,982 pages of exhibits. In this Order, transcripts are cited by the pagenumber and hearing date. References to prefiled direct and rebuttal testimonies are cited tothe page number of those testimonies and the exhibit identification that appears in thetranscripts.

Briefing

Trades Council, Staff, Pinnacle and AFA filed their initial briefs on November 16,2009. Pinnacle also filed a Proposed Order on November 16,2 00 9.

Trades Council filed its reply brief on November 24 ,20 09. Staff, Pinnacle and AFAfiled their reply briefs on N ovember 25 ,200 9.


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IV. DISCUSSION OF ISSUES AND EVIDENCE

A. Statutory Test

W. Va. Code 5 24-2-1 lc(c ) states:

In dec iding whether to issue, refuse to issue, or issue in part orrefuse to issue in part a siting certificate, the comm ission shallappraise and balance the interests of the public, the generalinterests of the state and local econom y, and the interests of theapplicant. The com mission may issue a siting certificate only ifit determines that the terms and cond itions of any public fundingor any agreemen t relating to the abatem ent of property taxes donot o ffend the public interest, and the construction of the facilityor material modification of the facility will result in a substan tialpositive economic impact on the local economy and local

employment. The com mission shall issue an order that includesappropriate findings of fact and conclusions of law that add resseach factor specified in this subsection. All material terms,conditions and limitations applicable to the construction andoperation of the proposed facility or material modification of thefacility shall be specifically set forth in the com mission order.

The Com mission views this statute as setting forth a two-part balancing test that wemore fully explained on page 114 of our August 27, 2004 Order that partially andconditionally approved a coal-fired electric wholesale generation facility in Longview Pow erLLC , Case Number 03-1 860-E-CS:

In Part O ne of the analysis, the Comm ission performs its duty toappraise and balance: (a) an app licant’s interest to construct anelectric wholesale generating facility; (b) the State’s andregion’s need for new electrical generating plants; and (c) theeconom ic gain to the S tate and the local econom y, against: (i)comm unity residents’ interest in living separate and apart fromsuch facility; (ii) a comm unity’s interest that a facility’s negative

impacts be as minim ally disruptive to existing property uses asis reasonably possible; and (iii) the social and environmentalimpacts of the proposed facility on the local vicinity, thesurrounding region, and the State.

The Commission performs Part Two of its analysis only if itdetermines in Part One that, taken as a whole, positive impactsrelating to the various interests outweigh the negative impactson the various interests. (See West Virginia Code 5 24-2-

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11c(c)). In Part Two the Commission decides whether aproject’s public fbnding, if any, and property tax abatement, ifany, offends the public interest. (West Virginia Code 5 24-2-1 c(c)).

See also, Longview Power, LLC, Case Nos. 03-1860-E-CS & 05-1467-E-CN (Comm’n

Order p . 102 June 26 ,20 06 ) (granting final approval of electric wholesale generating facilityand transmission line, with conditions); Libertv Gap Wind Force, LLC, Case No. 05- 1740-E-CS (Comm ’n Order pp. 39-40 June 22, 200 7) (denying siting certificate for wind-poweredelectric wholesale generating facility).

Within the second half of Part One, the Commission considers issues such as theProject impacts on viewshed, wildlife, ambient sound levels, and water resources. AESLaurel Mountain, LLC, C ase No . 08-0109-E-CS (Comm’n Order p. 9 Nov. 26,2008) (LaurelMountain Siting Order); AES New Creek, LLC, C ase No. 08-2105-E-CS (Comm ’n Orderp. 9 Sept. 30,2 00 9) (New Creek Siting Order).

B. The Application of Part One of the Balancing; Test

1. The Interest of Pinnacle to Construct the Project

Pinnacle has been studying and developing this Project since at least 2002.Application p. 6 (Pinnacle Ex. 1). Pinnacle has, through the hiring of consultants with

requisite expertise for the particular areas of concern, studied anticipated Project impactsrelated to economics, birds, bats, other wildlife, noise, viewshed, shadow flicker, hydrologyand wetlands. See generallv Application & Apps. J, K, L, N, 0,R, S, T, and U (Pinnacle Ex.

1).

In addition, P innacle has obtained clearance from SH PO relating to archaeological andarchitectural resources, culminating in an executed Mem orandum of Agreement with SHPO .Pinnacle Ex. 2; Tr. pp. 118-119 (Kuranda) (Oct. 27, 2009). Pinnacle has also alreadyconsulted with the W est Virginia D ivision of Natural Resources (WVD NR) and the UnitedStates Fish and W ildlife Service (USFW S). See generallv Application A pp. P (Pinnacle Ex.

1) (relating to agency consultation). Furthermore, Pinnacle has indica ted that it will workwith the Comm ission, USFW S, and WVDN R to study the Project’s impacts to bats and birdsduring the first year of Project operations and for up to three years thereafter. Joint Ex. 1 pp.3-4, 16.

The Application in this matter was comprehensive and complied with our SitingRules. Kellmeyer Direct p. 5 (Staff Ex. 1 ); Walker Direct p. 3 (Staff Ex. 2). The thoroughapproach that Pinnacle took w ith respect to the Application supports Pinnacle’s interest inthe Project.


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Pinnacle also spent significant time and resources seeking input from citizens andgovernmental entities in the local communities near the Project. Pinnacle formed aCom munity Advisory Panel (CA P) that began m eeting in April 2008. CA P is comprised ofsome 20 local volunteers who were selected to reflect the diversity of the population of theProject area- educators, emergency responders, local government officials, business persons,

retirees, health care providers, comm unity service providers, and a student from Keyser HighSchool. Members are from Keyser, Elk Garden, New Creek, Piedmont, and the surroundingareas. Pinnacle also conducted four informational open houses and made numerouspresentations to local civic groups and governm ental entities to share informa tion regardingthe Project. Application pp. 106-108 (Pinnacle Ex. 1).

Based on this evidence, the Com mission concludes that Pinnacle has demonstrateda sufficient interest in constructing the Project. Pinnacle has a legitimate business purposein undertaking the Project, and Pinnacle retained various technical experts and developeddetailed information in support of its Application, It has expended substantial time andeconomic resources to apply for a siting certificate, to pursue various other required permits,and to work to ob tain the real estate interests necessary to construct and operate the Project.Additionally, Pinnacle has spent significant time and resources in seeking local communityinput regarding this Project. Finally, Pinnacle has com mitted to coordinate its activities withthe C omm ission and other state and federal agencies. All of these facts show that Pinnaclehas a serious and sincere interest in constructing the Project.

2. The Need for Generating Plants in the State and Region

Pinnacle asserted that it will provide needed capacity and energy to the electric powersystem to serve load and maintain overall system reliability. Pinnacle also asserted that theProject will add generation from a renewable resource. Application pp. 8-13 (Pinnacle Ex.1). A review of the evidence presented in the case indicates that Pinnacle has established aneed for the Project.

Generation Fueled by Renewable Resources

The Comm ission has previously noted that the Energy Policy Act of 2005, P.L. 109-58, among other things, amended certain sections of the United States Code to encourage theuse and developmen t of renewable energy resources. Laurel Mountain S iting Order pp . 10,

62 (citing Title 11, P.L. 109-58); New Creek Siting Order pp. 10-11. Beyond the EnergyPolicy Act of 2005, we also stated:

In our estimation, it is reasonable to expect that federalenvironmental regulations will be enacted to control andmonitor g reenhouse gases, including carbon emissions, but there


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is not yet agreement about how the federal government willaddress those em issions. Until that policy has been enacted, theCom mission cannot begin to estimate whether retrofitting willcontinue to contribute to added capacity. Instead, the primarybenefit of retrofitting could be to allow existing plants to remainproductive. It simply is too early to tell.

Again, while the current downturn in economic activity and thedismal performance of the financial market indicate somedifficult “sledding” ahead for the state and nation over the nearterm, the long term need for “renewable resources” firedgeneration, both to meet the need for new generation and to easesome of the concerns about carbon-based generation pendingfurther technological development, is clear.

Laurel Mountain Siting Order pp. 11-12.

In June 2009, the West Virginia Legislature passed the Alternative and RenewableEnergy Portfolio Act (Energy Portfolio Act). See W. Va. Code 5 24-2F-1 et seq. In it theWest Virginia Legislature declared that “[tlhe developm ent of a robust and diverse portfolioof electric-generating capacity is needed for West Virginia to continue its success inattracting new businesses and jobs. This portfolio must include the use o f alternative andrenewable energyresources at new and existing facilities.” W. V a. Code 5 24-2F-2(4). TheLegislature also stated that “[it] is in the public interest for the state to encourage theconstruction of alternative and renewable energyresource facilities that increase the capacityto provide fo r current and anticipated electric energy demand at a reasonable price.” u.24-2F-2(7). Under the Energy Portfolio Act, the definition of “renewable energy resource”includes wind power. Id. 8 24-2F-3(13)(C ). The Comm ission is currently engaging inrulemakings to implement this program.

Moreover, each electric utility doing business in West Virginia will receive credits for,among other things, using alternative and renewable energyresources and is required to meetcertain alternative and renewable energy portfolio standards. Id.5 24-2F-5(a). For theperiod beginning January 1, 20 15, and ending D ecember 3 1, 201 9, an electric utility mustown credits in an amount equal to at least ten percent of the electric energy sold by the

electric utility to retail customers in this state in the preceding calendar year. u. 24-2F-5(d)( 1). That amount increases to fifteen percent on January 1,2 020 , and twenty-five percenton January 1,20 25 . Id.$5 24-2F-5(c), (d)(2).

The Energy Portfolio Act became effective in West Virginia on July 1,2 009 , and wasamended in Novem ber 2009. Thus, although wind power is not mandated for electricgeneration in West V irginia, it is one of the resources that electric utilities may use to satisfythe alternative and renewable energy portfolio standard, Given this authority, it is reasonable


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to encourage the development of diversified sources of fuel to generate electricity and to

include renewable energy resources such as wind among those diversified sources.

Capacity to Meet the Needs of the Region

The PJM 2009 Load Forecast Report predicted an average summer peak load growthof 1.7 percent per year during the next ten years and 1.4percent per year over the next fifteenyears. As a resu lt, the PJM summ er peak is predicted to reach 158,617 MW in 2019 and166,581 MW in 2024. Application pp. 9-10 (Pinnacle Ex. 1).

The PJM winter peak load is projected to increase 1.1 percent per year over the nextfifteen years, with the winter peak load forecast to reach 127,440 MW in 2018-19 and132,599 MW in 2023-24. Application pp. 9-10 (Pinnacle Ex. 1).

Additionally, Pinnacle noted that the North Am erican Electric Reliability Corporation(NER C), a non-profit organization focused the reliability of the bulk power system in NorthAm erica and subject to the oversight of the FER C and governmental authorities in Canada,concluded in 2008 that, although capacity margins have improved, additional generation isstill required. Application pp. 9-10 (Pinnacle Ex. 1). The annual net capacity factor for thePinnacle Project is about 35 percent, which results in additional generation of approxim ately169,243 MW h per year for the life of the Project. Id. . 17

Pinnacle also noted that President Obama’s New Energy for America plan calls forten percent of the nation’s electricity to be supplied by renewable sources by 2013 and

twenty-five percent by 2025 . Moreover, in a 2009 study, the United States Department ofEnergy outlined the importance of wind energy as a renewable energy source with noemissions. Pinnacle argued that its Project would help fill the expected need for energy aswell as the growing dem and for a mix of energy sources, including renewab le sources.Application pp. 8 -9 (Pinnacle Ex. 1); Friend Direct pp. 11-12 (Pinnacle Ex . DF-D).

In addition, the Commission notes that PJM must secure committed capacity thatconsiderably exceeds any particular summ er expected peak. Laurel M ountain S iting Orderp. 12. In previous wind siting cases, the Commission, in reviewing need, has recognizedmore than the highest annual hourly peak demand in assessing whether there is need for a

generating facility. Laurel Mountain Siting Order p. 12; New Creek S iting Order p. 12. InBeech Ridge, the Comm ission recognized the fact that wind turbines can power thousandsof homes, even at their lowest productivity, and that the output of wind projects will assistin meeting the peak summertime demands. Beech Ridge, Case No. 05-1 590-E-CS, Comm’nOrder p. 76 (Aug. 28 ,20 06 ) (Concl. of Law 15).

Finally, we also note that this State is part of a regional integrated electricity grid.Beech R idge, Case No. 05-1 590-E-CS, C omm ’n Order p. 76 (Aug. 28,20 06) (Concl. of Law14 “[Ilt is not in the public interest for this Commission to isolate West Virginia from the


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region. Th e power grid is interconnected, and to safeguard the availability of productive,well-maintained resources to our State’s residents, West Virginia must participate in theinterconnected electric system.”).

A FA asserted that little competent evidence was presented regarding the need for theProject. Initial Brief pp . 3-6. AFA com plained that, in a different case, Staff had not yet

presented testimony regarding the PJM load forecasts and asserted that the Commissionshould not consider the data in those forecasts until S taff had presented its position in theother case. Id., iting PATH W . Va. Transmission Co., Case No . 09-0770-E-CN. TheCom mission disagrees. In Com mission proceedings, the Staff position is filed pursuant toprocedural schedules established in each particular case, and it is inappropriate to delayconsideration of a ripe application in Case A because Staff testimony may be filed at a laterdate in Case B. Indeed, considering the statutory deadlines that the Com mission must meetin various proceedings, it is not possible to adopt the approach preferred by AFA . Moreover,Pinnacle co rrectly states that the evaluation that the C omm ission performs in various casesis driven by the specific wording of different statutes. Reply Brief p. 3. Therefore, while itcan be reasonably expected that the Staff position on the PJM forecasts should be consistentin a general sense, it is incorrect to conclude that the S taff position in one proceeding maysimply be applied to a different proceeding. Like any other party, the Staff positionultimately depends upon the particular facts and circumstances of the individua l proceedings,including different statutory tests.

AF A also argued in its brief that the Com mission should disregard the NERC Long-Term Reliability Assessment and the ReliabilityFirst Long-Term Resource Assessment,arguing that the Pinnacle witness only provided vague references to support the assertion that

carbon dioxide em issions would be reduced as a result of the energy produced by the Project,the geograph ic area considered by ReliabilityFirst is not the sam e as the geographic area ofPJM , and ReliabilityFirst does not have any authority or oversight of the management of awholesale electric market. Initial Brief pp. 4-5. Pinnacle, though, points us to the testimonyof Mr. Friend that PJM has estimated that 70 percent of the time a w ind farm would backdown coal for power generation and about 25 percent of the time it would back down naturalgas. Re ply Brief pp. 4-6, citing Tr. pp. 68-69 (Friend) (Oct. 26, 2009). We find thetestimony of Mr. Friend to be sufficient to establish that the electricity generated by theProject will likely replace ca rbon-based generation and result in the reduction of greenhousegases. Furtherm ore, we have considered projections from NERC and ReliabilityFirst in

pre vic w cases and continue to find that the forecasts of both organizations are relevant toconsiderations of the need for additional supplies of wholesale electric power.

Finally, AFA complains that the Pinnacle projections should be disregarded becausePinnacle has no t entered into a purchased power agreem ent that provides service to en d usersin West Virginia. Initial Brief pp. 5-6. In response, Pinnacle asser ts that the Comm issiondoes not require an applicant to have a purchase contract in place before applying for a sitingcertificate, the lack of a contract is irrelevant to whether the Project will help fulfillrequirements for electricity generated by renewable resources, and the Commission has


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repeatedly rejected the AFA argument. Reply Brief pp. 4-7, citing Laurel Mountain SitingOrder pp. 10, 62 (Concl. of Law 5). Again, we agree with Pinnacle. A wholesale projectdeveloper is not required to have a contract in place before app lying for a siting certificateor before construction, and it is not necessary for the Project’s generation to be delivered to

end users in West Virginia. Wholesale electric supplies are marketed to wholesalepurchasers, and such purchasers may be from outside of the State. In this particular case, we

note that the State of Maryland has entered into 20-year purchase contracts with four windand solar deve lopers, including a contract for the entire output of the Pinnacle P roject. “Md.to buy power from W. V a. wind farm, other projects,” Charleston Gaz ette, Charleston, W.

Va. (Dec. 8,20 09) ; “Md. to buy wind and solar power from 4 projects,” Victoria A dvocate,

Victoria, Texas (Dec. 8, 2008). Maryland Governor Martin O’Malley stated that the fourcontracts dem onstrate Maryland’s comm itment to reduce its carbon footprint by 25 percentby2020. Id.

In sum, we believe that it is in the public interest to develop diversified sources of fuelto generate electricity, including renewables such as wind; additional generation capacity isneeded to meet PJM ’s projected load forecast; it is in the public interest for W est Virginiato participate in the interconnected electric system; and the Project will generate enoughelectricity to power thousands of homes at its lowest level of productivity, and its output iswell-suited to deliver electricity in the winter, when heating demand peaks, and may assistin meeting the peak summertime demands. For all of these reasons, the Commissionconcludes that Pinnacle has demonstrated sufficient need for this Project.

3. The Economic Gain to the State and Local Economy

Pinnacle asserted that the Project would have a significant positive impact on theeconom y during construction, generating economic activity in the am ount of $28 .3 millionfor Mineral Coun ty alone and a total of $36.7 million in the State. Application p. 71 & App.N p. 2 (Pinnacle Ex . 1). Pinnacle estimates that the Project would support up to 3 10 direct,indirect, and induced jobs, w ith 275 of these job s located in Mineral C ounty. Id.U.S. WindForce executed a Memorandum Agreement with the local unions that provides certainassurances that local workers will be hired to construct the Project. Trades C ouncil Ex. 2 p.2. During construction, the Project would generate $42 1,000 n taxes for Mineral County and$603,000 for the State. Application p. 71 & App. N p. 2 (Pinnacle Ex. 1).

Pinnacle evaluated the Project impact by using the IMPLAN economic impact modelfor both the Mineral County and West Virginia economies using data on the expendituresduring the construction and operational phases of the projec t. Application Ap p. N p. 1(Pinnacle Ex. 1). The IMPL AN m odel is a widely accepted economic impact model that isutilized by consultants, universities, and governmental agencies at all levels across thecountry to estimate indirect and induced impacts of expenditures associated with an activityor business. Id. The Trades Council has consistently relied upon the IMPLAN model inpresenting economic analysis in several siting cases before the Commission. IMPLAN has


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been peer reviewed by the academic community, is widely accepted as the economic modelto use for estimating econom ic impacts, and is the model used for computing the econom icimpacts in the JED I model deve loped by the National Renew able Energy Laboratory, UnitedStates Department of Energy that was used by the applicants in the Laurel Mountain andNew Creek proceedings. Application App. N p. 1 (Pinnacle Ex. 1); Laurel Mountain SitingOrder p. 15; New Creek Siting Order p. 13.

During operations, Pinnacle estimates that the Project would employ about fifteenindividuals and would generate $2.1 million in business volum e in Mineral County alone,and, in the S tate overall, the Project would employ eighteen individuals and would generate$2.7 million in business volume annually. Application App. N p. 3 (Pinnacle Ex. 1). TheProject is expected to generate $430,000 in property taxes for Mineral Coun ty annually. Id.These annual benefits will persist throughout the life of the Project. Id.

The Trades Council also presented evidence regarding economic activity. TradesCouncil witness Michael Jin testified that the Project would result in a substantial positiveimpact on the local economy and local employment and a positive impact on the Stateeconomy as a result of the substantial increases in sales, taxes, business activities, and jobs.Trades C ouncil Ex. 1 p. 7. Mr. Jin’s report sets out the economic impact in terms of direct,indirect, and induced effects for new business sales, new jobs, new wages, income for theself-employed, corporate profits, and new taxes gene rated. His report was also developedusing the IMPLAN economic simulation software. Id. . 3.

Mr. Jin testified that du ring the construction period the Project would generate $19.2million in business sales for West Virginia companies. Besides the 113 craft workers, the

construction would create 166 more jobs in manufacturing, trucking, wood products andwholesale industries and business, professional and retailing services in West Virginia. Thenew wages for the construction and otherjo bs would total $14.2 million. Profits for the self-employed would be $1.0 million, and corporate profits would be $2.8 million. Stategovernm ent would receive $1.3 million in taxes, and the federal government would take in$3 O million. Report attached to Trades Council Ex. 1.

Darwin Snyder, president of the North Central West Virginia Building andConstruction Trades Council, AFL-CIO, testified that the M emorandum Agreement enteredwith U .S. Wind Force encompasses the Project and “ensures to the greatest extent reasonably

possible” that local workers will be hired to construct the Project. He testified that theconstruction would require approximately 113 craft workers on a full-time equivalent basisand “[tlhat’s a lot of work for a lot of our mem bers.” He further testified that the size of theProject would have a positive impact on the local economy and local employm ent. TradesCouncil Ex. 2 pp. 2-3.

Staff reviewed economic evidence presented by Pinnacle and did not express anyconcerns with that evidence. Kellmeyer Direct p. 3 (Staff Ex. 1) .


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AFA urged the Com mission to reject the evidence of economic impact because thestudies did not account for any costs imposed by the Project. Initial Brief pp. 6-7. AFAargued that the Project would have unspecified costs associated with property values; social,environmen tal and human health aspec ts; historic resources and tourism; federal production

tax credits; and other state and federal tax credits. In response, Pinnacle noted that Dr.Childs testified that there are no credible studies on whether the Project w ould affect property

values in a negative or a positive manner and that if the Project is not built then there wouldbe no econom ic impact from state or federal tax credits. Pinnacle Reply Brief pp. 8-11,citing Tr. pp. 24-28 (O ct. 27, 2009) (Childs). The Trades Council reiterated that AFA didnot present any evidence in this proceeding. Trades Council Initial Brief pp. 4-7; TradesCouncil Reply Brief pp. 2-3; Tr. pp. 13-17 (Oct. 27,2 009 ) (Jin). There is no evidence as tothe negative costs that AFA alleges will result from the Project because A FA presented nowitnesses. In comparison, both Pinnacle and Trades Council presented credible evidencebased upon established econom ic impact models and their witnesses, on cross-examination,disagreed with the AFA claims. The Comm ission will accept the economic impact testimonythat was tested through cross-exam ination instead of the unsupported speculations of AFA.

It is reasonable to conclude that there will be a significant economic gain to both thestate and local economy and that construction of the facility will result in a substantialpositive impact on the local economy and local employment. The C omm ission finds that theevidence regarding economic impact provided from the two economic simulations using theIMPLAN model shows that the Project will support up to approximately 3 10 obs, includingin excess of 110 construction jobs working directly on the Project. Although the modelingprovided by Pinnacle and the Trades Council differed slightly relating to the indirect andinduced jobs that will be created by the Project, each predicted significant economic gainduring the construction period, It is reasonable, therefore, for the C omm ission to concludethat there will be a significant economic gain to both the S tate and local economy. TheProject will create significant local construction jobs and several permanent jobs thereafter,and will provide significant tax revenues for local governance and public education.

4. (i) Comm unity Residents’ Interest in Living Separate from the Project;(ii) The Project’s Negative Impacts be M inimally Disruptive to Existing Uses;

(iii) The P roject’s Social and Environmental Impacts

Parties in siting certificate cases often differ on whether aspects of the Projectinvolving viewshed, noise, bats, and water result in negative social and environmentalimpacts, and if so , whether those impacts are minimally disruptive to the local residents andwill allow those residents to live separate and apart from the impacts of the Project. Whilethe Commission weighs each of the three considerations listed above when assessing thecommunity concerns, an overall analysis is more he lp hl , as w as reflected by the approachtaken by the parties in their briefs and by the Comm ission in prior siting ce rtificate orders.The Com mission analysis, therefore, will be presented in a com prehensive fashion.


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a. Viewshed

Approximately 23 turbines about 41 8 feet tall will be placed on Green Mountain inMineral County and in many instances will be visible from Keyser and surrounding areas.Application pp. 1, 15-16 & App. J p. 1 (Pinnacle Ex. 1). It is virtually impossible to “hide”wind turbines, and as the Com mission has recognized in previous cases, “to some degree the

visual impact of wind turbines is a subjective and personal opinion; in other words ‘beauty’h l y s in the eye of the beholder and seems to be (again understandably) a function ofproximity to, and to some extent, an economic interest in the Project.” Laurel MountainSiting Order p. 17. Through its analysis, Pinnacle concluded that there will be nounreasonable interference with ex isting scenic or aesthetic uses, nor will there be an undueadverse effect on the scenic character of the land within the viewshed of the Project.

As required by the Siting Rules, the Pinnacle V isual Impact Assessment provided theexpected impacts on viewshed within a one-, five-, and twenty-mile radius of the Project.Application A pp. J pp. 8-10 (Pinnacle Ex. 1); DeW an Direct pp. 3-4 (Pinnacle Ex. TJD -D).Pinnacle conc luded that public viewpoints within one mile of the Project are expected to beminim al as pub lic viewpoints of the Project within this range are limited to local roads on

Green Mountain (e .g., Pinnacle Road and Hoover Hollow Road). Application App. J p. 8(Pinnacle Ex . 1) ; DeW an Direct p. 7 (Pinnacle Ex. TJD-D). From a distance of one to fivemiles, Pinnacle asserted that the Project will be visible from a number of public view points,but that the dense roadside vegetation and hills will limit its visibility. Application A pp. Jp. 9 (Pinnacle Ex. 1); DeW an Direct p. 8 (Pinnacle Ex. TJD-D). Finally, beyond five and upto twenty miles, Pinnacle indicated that the turbines will be seen only if they noticeablycontrast in form o r line with the landscape and weather conditions are favorable. Application

App. J p. 9 (Pinnacle Ex. 1); DeW an Direct p. 8 (Pinnacle Ex. TJD-D). Specifically,Pinnacle noted th at distances of five to twenty miles provide the setting for panoramic viewsthat give the observer the greatest sense of the larger landscape. How ever, the effects ofdistance and haze will obliterate the surface textures, detailing, and form of Projectcomponents. Moreover, objects seen at this distance will be highly visible only if theypresent a noticeable contrast in form or line and when weather conditions are favorable.Application A pp. J p. 9 (Pinnacle Ex. 1); DeW an D irect p. 8 (Pinnacle Ex. TJD-D).

Pinnacle also provided three viewshed maps that provided an accurate understandingof the potential Project visibility within the twenty mile study area. DeWan Direct p. 6

(Pinnacle Ex. TJD-D). These maps include (1) a positive viewshed map that indicatesthrough shading where the turbines might be visible if there were no trees, buildings or otherobstacles to block the view, (2) a negative viewshed map that indicates through shadingwhere views of the turbines will be cloaked by topographic features, irrespective of localvegetation or obstruction, and (3) a negative viewshed map with vegetation as a separatelayer, representing forested areas, to more realistically illustrate the potential visibility of theProject. l_d. p. 15.

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Pinnacle’s Visual Impact Analysis found a minimal number of scenic resources ofstate or national significance, and relatively few parks, designated hiking trails, or similarpublic facilities within ten miles of the Project. Application Ap p. J p. 1 (Pinnacle Ex. 1).There are no National Natural Landmarks, National Wildlife Refuges, National Wild andScenic Rivers, National Parks, or National Forests within the tw enty-mile viewshed of theProject. Id.Where the Project is visible from scenic resources, Pinnac le generally concluded

there will be no unreasonable adverse visible impact caused by the turbines and in noinstances will the Project block the view s from or the views of lakes, mountains, rivers, orother scenic resources. Application App. J pp. 1, 3 (Pinnacle Ex . 1); DeWan Direct p. 18(Pinnacle Ex . TJD-D) ,

Within the 20-mile radius of the Project, Pinnacle concluded that most of theidentified areas w ould either have no view s of the Project or that the v iews, if any, will befiltered by dense hardwood vegetation and obscured by the effects of distance andatmospheric per~ pe cti ve .~pplication A pp. J. pp. 10-14 (Pinnacle Ex. 1).

The A llegheny Wildlife Management Area is divided into tw o parts - one part beingadjacent to the Project and the other part approximately four miles from the Project. Basedon the Pinnacle viewshed analysis, portions of the A llegheny W MA may have views of theProject, but these views would most likely be filtered by dense hardwood vegetation.Application App. J p. 10 (Pinnacle Ex. 1); DeWan D irect p. 9 (Pinnacle Ex. TJD-D). Fromthe abandoned fire tower at the Allegheny WMA, the turbines will be seen in a relativelytight cluster, as part of a broad landscape including a cell tower and multiple other man-m adestructures. Application App. J p. 10& App. D Viewpoint 8 (Pinnacle Ex. 1); DeWan Directp. 9 (Pinnacle Ex. TJD-D).

Pinnacle also described the anticipated viewshed from th e Jennings Randolph Lake,approximately three miles from the Project. Application App. J pp. 10-14 (Pinnacle Ex. 1);DeW an Direct pp. 9-11 (Pinnacle Ex. TJD-D). Portions of the Pro ject will be visible fromless than 20% of the lake’s surface because of the nature of the landscape, interveningtopography, and surrounding forest cover. Application App. J p . 12 (Pinnacle Ex. 1); DeW anDirect p. 10 (Pinnacle Ex. TJD-D). The majority of the views of the turbines from the waterwill be at the northern end of the lake in Maryland, including the Maryland Overlook, wherethe turbines w ill appear relatively small in com parison to other visible man-m ade structures.Application App. J p. 13 (Pinnacle Ex. 1); DeWan Direct p. 10 (Pinnacle Ex. TJD-D).

Pinnacle also noted that at other locations on the lake, only the tops of turbines will be visibleand that intervening vegetation may block the view of the turbines. Application App. J p. 13(Pinnacle Ex . 1); DeW an Direct p. 10 (Pinnacle Ex. TJD-D) .

Finally, Pinnacle identified two cu ltural resources, both listed on the National Registerof Historic Places (NRH P), within five miles of the Project: the Thomas R. C arskadon House

The Viewshed Analysis also concluded that the Project would not affect Big Run State Park (tenmiles from Project) and Deep Creek Lake State Park (sixteen miles from Project).


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on Mineral S treet in Keyser and the Mineral County Courthouse on Armstrong Street, alsoin Keyser. Application App. J pp. 11-12 (Pinnacle Ex. 1); DeW an Direct p. 9 (Pinnacle Ex.TJD-D).

In addition to its in-depth written analysis of the visibility impacts of the Project,Pinnacle provided nineteen photosimulations fiom the Project area. Pinnacle focused on

areas that: a) were publicly accessible, b) represented a broad cross-section of the diverseland use patterns in this area, and c) were characteristic of the views of the proposed windproject from a wide variety of vantage points and viewer positions. In addition, where theturbines would be visible over an extended part of the landscape, Pinnacle provided larger,panoramic versions of the photosimulations. Based on the evidence submitted in this case,we conclude that the photosimulations provided by P innacle were representative of the areaand provided the C omm ission with views o f scenic overlooks and Project views that will bemost evident to the public. Tr. p. 52 (DeWan) (Oct. 26,20 09).

Finally, Pinnacle indicated that some of the towers must be lit for airline safety.

Pinnacle will use lighting as required by the Federal Aviation Administration (FA A) and anyapplicable fire or safety code, regulation, or accepted good utility practice, but otherwise willlimit lighting for the Project.

In addition to reviewing all of the evidence regarding visibility and viewshed, theComrnission conducted a View of the Project area in September 2009, where theCom mission visited fourteen sites in or near the Project Area. The Com mission understandsthat viewshed of a wind turbine project is the most subjective (and likely most visceral) issuearising in siting certificate cases for wind power projects. As indicated, there is just asobviously no “bright line” test for viewshed. Laurel Moun tain Siting Order pp. 18-19.

In this situation, it is true that individual turbine units will be visible from variouslocations. Afte r reviewing the evidence and conducting the View, however, the viewshedevidence confirms that there will be no unreasonable interference with existing scenic oraesthetic uses, and there will also be no undue adverse effect on the scenic character of theland within the viewshed of the wind project. We , therefore, conclude that the impact of thepresence o f the Project and view of the Project o r its turbines will be minimally disruptiveto the comm unity and that the cum ulative visual impact upon managed lands and historic andcultural sites is neither unreasonable nor burdensome.

b. Sound

Noise, like view, is another elusive and to some extent subjective factor in ourdeliberative process. Num erous factors affect the sound levels from wind turbine projects,including the type ofturb ine, weather, ground cover, distance, ambient noise, leaf and foliagecover, elevation, wind direction, the state of techno logy as applied to wind turbines, and thedetection of sound from wind turbine projects.


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While there has been progress in con trolling the sound fiom turbines, we indicated thecomplex ity of our task in considering sound analysis in a previous siting certificate order:

Wind turbines obviously make noise. The question presented in

this case, like prior cases before the Com mission, is determiningthe expected deg ree of noise impact upon nearby residen ts and

whether that impact is acceptable. W e are required a t this stageof the proceeding in these wind turbine certification applicationsto assess the noise impact from a wind turbine Project that is notyet certificated, let alone constructed or operating, in an industrywith rapidly changing technology, upon certain possible“receptors,” receiving the noise in varying circumstances (wind,weather, foliage cover, ground cover and so forth) at multipledistances from the wind turbines within the Project area.

Laurel Mountain Siting Order p. 22.

Moreover, during the Application process the Commission can only react to theevidence and questions presented in this proceeding. Laurel Mountain Siting Order p. 22;Liberty Gap Wind Force, LLC, Comm’n Order p. 31, Case No. 05-1740-E-CS (June 22,2007).

IWith its Application, as required by Siting Rule 3.1 m.4, Pinnacle filed a noise study

conducted by A centech Inco rporated (A centech) that com plied with the Siting; Rules. See

generally Application App. U (Pinnacle Ex. 1) ;Barnes Direct (Pinnacle Ex. JDB-D); Walker

Direct pp. 7-8 (Staff Ex. 2). Siting Rule 3.l.m.4 .c requires a noise study of the Project’sexpected operations up to one mile from the generating facility property lines. Pinnacle

noted that there are about 44 residences located within one mile of the Project. SeeApplication A pp. U Figure 2 (Pinnacle Ex. 1).

Am bient noise levels- romNovem ber 28-December 11,2007, Acentech conductedan ambient noise monitoring program at five residential locations: (1) near homes in awooded area west of the Project area, (2) in a residential yard adjacent to a pond in thevicinity of a cluster of homes w est of the Project area, (3) in a residential yard near severalhomes south of the Project area, (4) in a wooded area near two homes to the east of the

Project site, and (5) in a residential yard near two homes to the east of the Project site.Application A pp. U Table 1 (Pinnacle Ex. 1); Barnes Direct pp. 7-8 (Pinnacle Ex. JDB-D ).The locations selected were representative of the ambient sound of the residencessurrounding the Project. Tr. p. 80 (Barnes) (Oct. 27, 2009).


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As required by the Com mission, Pinnacle used the average day-night sounds levelsfor both ambient and operational noise w ith the Leq6 descriptor. See Barnes Direct p. 5

(Pinnacle Ex. JDB-D ). Pinnacle also applied the 10 dBA penalty to all nighttime sounds.-d. p. 5. Pinnacle used monitors that were fitted with foam windscreens to reduce wind-generated noise, were laboratory-calibrated within the past year, and were checked in thefield with an acoustic calibrator before and after the measurem ents. See Application App.

U p . 3 (Pinnacle Ex. 1).

Although AFA presented no witnesses, through cross-examination and in the InitialBrie f, counsel for AFA suggested that the 10 dBA penalty on noise events did not apply toall nighttime sounds and that certain “noise events” should not be considered in the acousticanalysis. Initial Brief pp. 8-9. AFA argued that the study was skewed by sounds that wouldno t be objectionable to the ordinary person. The acoustic analysis of ambient, orbackground, sound levels, therefore, was distorted, and the Commission could not beconfident that the actual sound impact would not be burdensome. In response, Mr. Barnestestified that the Siting Rules require the measure of a day-night level - an average. Heindicated that, by requ iring the use of an average, the Siting; Rules required that a 10 dBApenalty be applied to all night-time sound. Tr. pp. 78-79, 84-85 (Barnes) (Oct. 27 ,200 9).As we have previously recognized, the Federal Transit Administration also indicates thatnoise events as used in the calculation of Ldn refer to all noise that occurs at night. LaurelMountain S iting Order pp. 23-24. In Laurel Moun tain, we stated, “Under Siting Rule3.1 .m.4, 150 C.S.R. Series 30, to account for increased annoyance due to noise during thenight hours, it is appropriate to apply the 10 dBA penalty to all noise that occurs at night.”-d. AFA presented no evidence to support its position that the Comm ission’s evaluationshou ld remove certain “unwanted sound events” from the night-time sound penalty or the

ambient studies generally. There is no reason to modify our analysis under the Sitinn Rulesas AFA suggests.

Acentech found that the ambien t noise level ranges from 49 dBA to 63 dBA , with anaverage value of 54 dBA. Application p. 86 (Pinnacle Ex. 1). There was no dominant soundsource that generated sound contours, and as the wind direction typically came f rom the west,the sound levels were greater on the west side of Green Mountain. Id. p. 86-87.

In the hearing counsel for AFA, on cross-examination, noted that Appendix A of thePinnacle A coustical S tudy indicated that 25 dBA was representative of a quiet rural nighttime

and questioned how P innacle could reconcile that the ambient noise levels in the Project’srural setting could range from 49 dBA to 63 dB A if a representative rural area at nighttimewas 2 5 dBA . Tr. pp. 60-62 (Barnes) (Oct. 27,20 09). In response, Mr. Barnes indicated thatnot all rural areas are equal, and a windy rural area like Green Mountain is required for awind project. Id. Mr. Barnes also testified that the Siting Rules call for the calculation of

Equivalent Noise Level (Leq) is a cumulative metric that averages noise levels over time - anhour, day, month or quarter.


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a week-long Ldn as opposed to a short-term nighttime measurement of 25 dBA . Id. Mr.Barnes concluded that, given the area, the results of the ambient noise monitoring study were

expected and not surprising. Id. p. 78-79. Cf. Beech Ridge, Case No. 05-1590-E-CS(Comm ’n Order p. 49 A ug. 28 ,2006 ) (recognizing ambient noise levels in excess of 50 dBAin rural area).

Operational sound levels - Acentech also conducted modeling studies of bothconstruction and operational sound levels using the CadnaA m odel. Application App. U pp.4-8 (P innacle Ex. 1). The C omm ission has in previous cases indicated that the use of theCadnaA model is appropriate. See, e.&, Laurel Mountain S iting Order p. 25.

Acentech built the assum ption into its operational sound study that all 23 turbines areoperating at maximum sound output for the Mitsubishi MW T9Y 2.4 model, which occurs athub-height wind speed of 10.9 meters per second ( d s ) , or 24 mph, or greater. Applicationp. 8 (Pinnacle Ex . 1); Barnes Direct p. 10 (Pinnacle Ex. JDB -D). The use of this assumptionresults in a more conservative calculation, resulting in higher sound levels. Acentech built

several other assumptions into its operational sound study that resulted in a moreconservative calculation: (1) standard atmospheric conditions that are favorable to soundpropagation, (2) a moderate temperature inversion, and (3) all receptor locations weredownwind of all turbines at all times (a physical impossibility). Id. p. 10, 12-13.

Based on this scenario, the estimated operational sound levels produced a range from42 dBA to 55 dBA at the five monitoring locations. Barnes Direct p. 11 (Pinnacle Ex. JDB -

D). Mr. Barnes testified that the United States Environm ental Protection Agencyrecommends an outdoor noise level of 55 dBA D NL for “outdoor recreational areas and

farms and other outdoor areas where people spend widely varying amounts of time and otherplaces in which quiet is a basis for use” and that this criteria was developed to provide asafety margin without regard to econom ics or technical feasibility. Barnes Direct p. 6(Pinnacle Ex. JDB -D); Tr. p. 70 (Barnes) (Oct. 27 ,200 9). Three residences have predictedtotal sound Ldn levels that are at, or marginally above, 55 dBA, but P innacle has entered intoagreemen ts with the owners of these residences. Application p. 88 (Pinnacle Ex. 1); BarnesDirect p. 13 (Pinnacle Ex. JDB-D ). Also, wind speeds both lowe r and greater than 10.9 d s

(24 mph) produce sound emissions that will be less than the maxim um level. Barnes Directp. 11 (Pinnacle Ex. JDB-D). The levels would also be low er during times with less wind,and, as sound levels were estimated for outdoor locations, indoors they would be reduced by

12 dBA with the windows open and 24 dBA with windows closed. Application App. U p.7 (Pinnacle Ex. 1 ).

Acentech a lso analyzed the Project related to low frequency sound. Mr. Barnes notedthe technological advances made in sound control for wind turbines and testified that modernwind turbines do not generate a significant amount of operational noise as compared to olderwind turbines. Barnes Direct p. 1 4 (Pinnacle Ex. JDB-D). Older turbines generated lowfrequency noise, but the modern upwind rotor design has eliminated this issue. Id. Lowfrequency sounds are generally those that occur from abou t 30 to 125 Hertz. According to


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Mr. Barnes, low frequency noise is measured through C-weighted sound levels. Id. . 15.The analysis conducted by Acentech indicated that the highest C-weighted sound levelexpected at any nearby full-time residence is below recom mended criteria levels. Id.

AFA argued that the Pinnacle sound analysis was insufficient because Mr. Barnes didnot perform any actual measurements of C-weighted sound levels that generally reflect

lower-frequency sounds. Initial Brief p. 9. In response, though, Pinnacle advised that Mr.Barnes not only measured C-weighted sound levels, he characterized the impact of theProject on C-weighted sound levels:

Although C -weighted sound level information is not identifiedin the WVPSC guidelines for noise studies, it has been requestedin the past WVPSC site reviews and is presented here as asupplemen t to this sound study. The results indicate that thelong-term C-weighted Ldn sound levels of the wind farm will beless than the existing ambient C-weighted Ldn levels at bothoutdoor and indoor locations in the community at the distantlocations to the west of the turbines. At the closest locations tothe east of the facility, the estimated C-weighted Ldn soundlevels are greater than the measured ambient levels, althoughthey are less than the upper limit of 75 to 80 dBA that isrecommended in ANSUASM E S tandard B133.8-1977 (R2001)for another type of power facility.

Pinnacle Exhibit 1, Append ix U, p. 6; Table 6 (“Comparison of

measured C-WeightedLdnSound Levels during Am bient SoundSurvey with Estimated Ldn Sound Levels for WTG Facility(dBC)”).

Reply Brief p. 13.

Acentech found that routine operation of the wind farm will produce average day-night sound levels that are equal to or lower than the measured existing ambient day-nightsound levels at noise sensitive locations to the west of the turbines. Application App . U p.8 (Pinnacle Ex. 1). Even though the average day-n ight sound levels are greater than the

measured 12-day average ambient Ldn values for locations closest to the east side of thefacility, Acentech found that they are within the range of daily Ldn values measured nearthose locations, and, except for one residence under agreemen t where the estimated Ldn is56 dBA , they are all equal to or less than 55 dBA . Based on these findings, Projectoperational noise levels are not expected to be ob jectionable, and no significant noise impactsare anticipated because of Project operation. Id. p. 8-9; Barnes Direct p.16 (Pinnacle Ex.JDB-D).


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Neither the governing statute nor the Siting: Rules contain any operational no iselimitations or guidelines. Instead, they requireus to balance various project impacts and theireffects on the community. The Pinnacle study complied with Comm ission requirements,accurately portrayed ambient noise levels that are typical for a rural community, andemployed a variety of conservative assumptions to allow us to assess the “worst case”scenario for the Project’s noise impacts. Even under all of the conservative assumptions, the

highest level of predicted operational noise was 56 dBA . Application App. U p . 8 (PinnacleEx. 1. The C omm ission is not required to conclude that the Project would never impactexisting ambient noise levels, nor would that be a reasonable thing to do. Based upon thetotality of the evidence presented to us , we conclude that the Project will emit some noise,but the operational noise levels should not be objectionable. The Com mission furtherconcludes that, to the exten t that operational noise results in negative im pacts, those negativeimpacts are expected to be as minim ally disruptive to existing property uses as is reasonablypossible.

Construction Sound Levels - For the construction noise model, Acentech made theworst case assumption that all 23 turbine sites would be under construction simultaneously,producing the maximum amount of construction noise. Application App. U p. 6 (PinnacleEx. 1); Barnes Direct pp. 9-10 (Pinnacle Ex. JDB -D).

Mr. Barnes testified that construction noise beyond 1,000 feet of the nearest turbinewould not cause a significant impact for the community. Barnes Direct p. 10 (Pinnacle Ex.JDB-D) . Even under the simultaneous construction assumption, the maximum predictedconstruction noise level at the noise-sensitive locations nearest the facility, which inc luderesidences southw est of the Project, the 24-hour Ldn sound levels for construction vary from

55 dBA to 64 dBA . This com pares favorably to the range of daily ambient Ldn values of 42to 61 Ldn at that location. Application App. U p. 6 (Pinnacle Ex. 1). M r. Barnes alsotestified that the construction noise will not be permanen t, will occur mostly in the daytimehours, and will produce sounds that are already familiar to the comm unity, including soundsfrom home construction. Barnes Direct p. 10 (Pinnacle Ex. JDB-D). Mr. Barnes alsoconcluded that the overall noise impact on the com munity beyond 1,000 feet of the nearestturbine is not expected to be significant. r_d.

Similar to the conclusion for operational sound impacts, the Commission alsoconcludes that, to the extent that construction noise results in negative impacts, those

negative impacts are expected to be as minim ally disruptive to existing property uses as isreasonably possible, and are not unreasonable.

c. Birds and Bats

In support of its App lication, and as required by Siting: Rule 3.1 m.2, Pinnacle filedthe following surveys and assessments:


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1. Habitat Characterization and Assessment of Rare,Threatened and Endangered Species for the PinnacleWind Farm, Mineral County, West Virginia, March 2009(RTE Report),

2. Avian Risk Assessment for the Pinnacle Wind Power

Project, Mineral County, West Virginia, February 2009(Avian Report); and

3. Bat Risk Assessment: Pinnacle Wind Farm, MineralCounty, West Virginia, February 2009 (Bat Report).

Application Ap p. R, S, & T (Pinnacle Ex. 1). B HE, Curry& Kerlinger (C& K), and Pinnacledeveloped survey methods for avian and bat surveys based on a combination of standardmeth ods developing within the wind industry for preconstruction avian and bat surveys aswell as through its consultation with the WVDNR and the West Virginia office of the

USF WS . Pinnacle and its experts began their consultation with the USFW S and WVD NRin 2007 by requesting information on wildlife; unique habitats; and rare, threatened andendangered species that might be located on or near the Project site. Pinnacle Ex. 1 p. 78.Additionally, Pinnacle and its experts regularly consulted with the USFWS and W VDNR toprovide updates regarding survey progress, to obtain appropriate permits w here necessary,and to confirm the sufficiency of the manner in which the surveys were conducted. TyrellDirect p. 3 (Pinnacle Ex. KT-D). The scope and methodology for the avian and bat studieswere discussed with USFW S and WV DNR prior to conducting fieldwork. Application p.

80 (PinnacleEx. 1).

In its Application and through the testimony of Dr. Kerlinger, Mr. Sponsler, and Dr.Tyrell, Pinnacle provided the results of its investigations with respect to raptors, breedingbirds, nocturnal m igration activity, bats, and rare, threatened, and endangered species.

Breeding:Bird Studv -Dr. Kerlinger conducted a breeding bird study in mid-late June2007 during which area searches and 36 point count locations were surveyed. KerlingerDirect p. 5 (Pinnacle Ex. PK-D). Based on this survey, Dr. Kerlinger concluded thatcommon forest and forest edgebrushland nesting birds that are typical of much ofAppalachia predom inated in the turbine area. Id. p. 12- 13. No federally listed threatened

or endangered species were observed. Id. . 13. A lthough one West Virginia rare species,the Black V ulture, was observed in the turbine area, Dr. Kerlinger concluded that this birdmay not have been nesting on site and is currently expanding rapidly into new habitats. Id.p. 13. Additionally, although rare in West Virginia, the Black Vulture is not uncommon inNorth America. Application App. S pp. 7-8 (Pinnacle Ex. 1).

Based on the analysis, Dr. Kerlinger concluded that collisions of nesting birds withturbines are expected to be minimal and not likely to result in significant mortality becausemost of these birds rarely fly at rotor height during the nesting season. Application App. S,


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Ex. Summ ary p. 1 (Pinnacle Ex. 1). Dr. Kerlinger concluded that there may be ephemeralimpacts to brush and forest edge species, although those effects are not different from thoseassociated with any normal harvesting of timber that occurs in Appalachia. Kerlinger Directp. 13 (Pinnacle Ex. PK-D).

Raptor Studies - C&K undertook tw o seasonal studies of raptor migration using an

observation point just to the south of where turbines would be placed on the ridge at theProject site. The site was chosen at the top of the ridge so that birds migrating along theridge cou ld be seen as they passed through the Project site. Id. . 5-6. Methods similar to

those used by the Hawk Migration Association of North America were used, although C&Kcollected more detailed information on weather, flight behavior, and other variables.Application A pp. 3 Ex. Summ ary p. 2 (Pinnacle Ex. 1). Dr. Kerlinger concluded that theProject site is not an important migration area for most raptors. Kerlinger Direct p. 11-12(Pinnacle Ex. PK-D ). Dr. Kerlinger did note that the numbers of Golden Eagles observedduring the spring and fall seasons were greater than at most hawk migration sites in theeastern United States, which suggested that the ridge is an important area for migratingeagles . H e also noted that, because of Golden Eagle migration, Pinnacle decided to eliminatea second string of turbines about one-half mile to the w est of the ridge-top, thereby reducingpotential risk at that location. Id.p. 12.

Summ ary of Radar Studies of Nocturnal Migration- r. Kerlinger concluded thatnocturnal migration at the Project would, in all likelihood, be very similar in passage rate,direction, and altitude to w hat has been reported in dozens of radar studies that have beendone in the eastern United States and that night migrants w ould be distributed across a broadfront as they migrate over the general region that includes the Project site. a. . 11. Dr.

Kerlinger also noted that the risk to waterbirds migrating at Pinnacle is likely to be negligibleand that the risk to landbirds migrating at Pinnacle is unlikely to be biologically significant.Application p. 83. (Pinnacle Ex. 1)

Bats - Pinnacle concluded that the risk to bats generally and to endangered batsspecifically are low. Id. . 84-85.

Mist-netting surveys were conducted at eight different sites within the Project areaduring the summer and fall mist net seasons in 2007, and a spring mist-netting survey wasconducted in 2008, equating to 56 nights of mist-netting. Tyrell Direct p. 4 (Pinnacle Ex.

KT-D). The surveys followed the mist net guidelines as provided in the USFWS DraftIndiana Bat Recovery Plan. Id. No threatened and endangered species were capturedthrough the mist-netting surveys. Id. t 5; Tr. p. 200 (Tyrell) (Oct. 26, 2009). Moreover,capture rates fo r all bats at the Project site during migratory periods were low, particularlycompared to other mist net analyses conducted in West Virginia. Tyrell Direct p. 16(Pinnacle Ex. KT-D).

BH E also conducted a hibernacula study by reviewing available literature from theWest Virginia Department of E nvironmental Protection and consultation with the W VD NR .


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Tw o caves were identified within five miles of the Project. Both were surveyed and neitherrevealed the presence of any federally protected bat species. Id. . 4. Based on all of thisanalysis, Dr. Tyrell concluded that no federally threatened or endangered species areexpected to breed, reside in, or use the Project area as primary habitat and the Project areais no t located in the imm ediate vicinity of hibernacula containing threatened or endangeredbat species. Id. . 6. Moreover, because the cave survey did not reveal large numbers of

bats, there were low mist-netting captures and other site-specific features, Dr. Tyrellconc luded that the risk to non-listed bats may be lower than at other Appalachian ridges. z_d.

1 p. 16.

AF A argued in its Initial Brief that the Project would likely kill substantial numbersof eagles, migratory birds and bats. Initial Brief pp. 9-1 1. In response, Pinnacle noted thatAFA had no t presented any evidence in support of its position. Reply Brief pp. 15-16.

AF A also suggested that Pinnacle shielded from the Comm ission a September 30,2009 letter from the USFWS regarding the Project. Initial Brief pp. 9-1 1. Pinnacleresponded that this suggestion was w holly without merit and that P innacle co rrectly assumedthat AFA would introduce the USFW S Letter at the evidentiary hearing. Reply Brief pp. 14- 15; AFA Ex. 6 (Oct. 26, 2009). Pinnacle asserted that had the U SFW S believed that theletter was crucial to the Commission’s decision, USFW S cou ld have copied the Comm issionwhen the letter was sent to Pinnacle. Id.

Pinnacle further argued that the USFW S letter is not unique to this Project and it iscomm on fo r USFW S to criticize aspects of developer study efforts, to ask for more pre-andpost-construction studies, and to m agnify the possibility, however rem ote, of an unauthorized

take. Initial Brief p. 14. These USFWS actions, however, do not mean that the Projectshould not be built or that Pinnacle is obligated to conduct more studies or apply for anincidental take permit. Despite the USFWS normal recomm endation that three years ofpre-construction study be undertaken, the Pinnacle witness testified that he could not recallany projects in which three years of such study had been conducted. Tr. p. 154 (Kerlinger)(Oct. 26, 2009). Moreover, Pinnacle asserted that when USFW S wants to signal itsopposition to a project, it knows how to do so, as it did in Liberty Gap. Initial Brief p. 15,citing AFA Ex. 8 p. 7 (Sept. 28, 2006 ltr. from USFW S to Liberty Gap attorney p. 7 “Weconclude with reasonable certainty that during the operational life of the project, federally-listed species will be taken.”) In this instance, however, US FW S did not object to the

Pinnacle Project, but reiterated its “willingness to work with [Pinnacle] to develop measuresto avoid and minimize impacts to migratory birds, including eagles.” AFA Ex. 6 pp. 7, 10 .

Based on the record, it is clear to us that Pinnacle adequately consulted with theUSF WS and WVD NR concerning the scope of the studies undertaken by P innacle and itsexperts, both during the developm ent and implemen tation of those studies. Finally, the scopeof work performed in this proceeding is similar to that which has been deemed sufficient inprevious cases. See, e a . Laurel Mountain Siting Order p. 34. Accordingly, the Commissionconcludes that the Pinnacle surveys were reasonab le and sufficient.


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Threatened and E ndangered Species-Pinnacle w itness Dr. Tyrell testified that thereis no evidence o f a confirmed kill of an endangered species of bat by a wind turbine facilityin the United S tates. Tr. p. 179 (Tyrell) (Oct. 26 ,200 9). Following consultations with theWVDNR and USFWS, BHE conducted a study of the Project area concerning rare,threatened o r endangered species. No plants listed as rare, threatened, or endangered byUSFW S or WV DNR were observed during the Pinnacle field studies. Additionally, there

were no federally listed rare, threatened and endangered species identified on or near theProject Site and no endangered species were detected du ring mist-netting within the Projector in the tw o caves within five miles of the Project area.

Pinnacle did note that of the 21 mammalian species listed as rare, threatened orendangered by the State of West Virginia only three, the Eastern small-footed bat, theAllegheny w oodrat, and the eastern spotted skunk, have been documented within five milesof the Project area. Based on the Pinnacle and BHE analysis, the Project is not expected toadversely effect the populations of these species. Application pp. 78-80 (Pinnacle Ex. 1).

The Commission concludes that the evidence submitted by Pinnacle concerningthreatened and endangered species is credible because the studies undertaken were complete,reasonable and conducted in consultation and cooperation with the USFW S and W VDN R.No threatened and endangered species were detected through the mist-netting surveys, andas confirmed by WVDNR, the Project area is not located in the immediate vicinity ofhibernacula co ntaining threatened and endangered species. Therefore, we agree that nofederally threatened o r endangered species are expected to breed, reside in, or use the Projectarea as primary habitat or breeding area.

USFWS & WVD NR Recommendations

On September 30, 2009, the Elkins Field office of the USFWS provided theComm ission with a letter from USFWS to C&K and BHE. AFA E x. 6. In the letter, theUSFW S made several pre-construction and post-construction recomm endations, includingcoordination by Pinnacle with the USFW S and W VDN R on study plans, monitoring and thedevelopment of adaptive management strategies, Id. . 11. USFW S indicated that it wasimportant to work together to gather the information needed to determine feasible andeffective methods to reduce collision and mortality risk to birds and bats from w ind power

projects. As we noted above, for the Pinnacle Project, unlike the Liberty Gap project, theUSF WS d id not recommend that an incidental take permit be obtained. Moreover, as weexplain below, Pinnacle has agreed to a framework for post-construction studies that includesand allows for input not only from Staff, but also the USFWS and WVD NR, as the U SFWShas requested.

On N ovember 3, 2009, after our evidentiary hearings were closed, the Comm issionreceived a letter from Curtis I. Taylor, Chief of the Wildlife Resources Section of theWV DNR , to Mr. Sponsler, Technical Director of BHE Environmental, Inc. BH E is one of


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the consultants hired by Pinnacle, and Mr. Taylor was responding to a March 11,2009, BHErequest for WVDN R to com ment o n two BH E reports, namely the “Bat Risk Assessment:Pinnacle Wind Farm, Mineral County, West Virginia” and “Habitat Characterization AndAssessment of Rare, Threatened, and Endangered Species For the Pinnacle Wind Farm,Mineral C ounty, West Virginia.” In the letter we received on November 3 ,200 9, Mr. Taylorexpressed several concerns about wildlife and habitat in the Project area and presented

several recomm endations for actions by Pinnacle. Ltr. pp. 1-4 (dated Oct. 26, 2009, filedNov. 3,2009).

It is helpful to our proceedings for the C omm ission to receive input from W VDN R.Unfortunately, Mr. Taylor’s input was no t received until after the evidentiary hearing, andthus, his position was not available to be questioned by the parties or the Commission.Am ong other things, it is not clear whether Mr. Taylor is presenting the recomm endationsof WVD NR S taff or the official position of that state agency. Our Public ServiceCommission Staff, for instance, states an independent position, but that position is notbind ing upon the Comm ission. Nonetheless, we note that under the conditions attached to

our dec ision to grant a siting certificate, Pinnacle is required to abide by state and federalenvironmental laws, acquire any necessary environmental permits and file any mitigationplans required by st#e and federal environmental agencies. Thus, Pinnacle must complywith any requiremen ts established by WVDNR , the West Virginia state agency responsiblefor protecting our state wildlife and its habitat.

d. Archaeological and Architectural Resources

In 2007, Pinnacle began its coordination with the West Virginia State HistoricPreservation Office (SHPO) relating to the Project. Following meetings with SHPO,Pinnacle submitted a scope of work for cultural resource investigations for both architecturaland archaeological resources related to the Project and Project area. In March 2008, SHPOconcurred with Pinnacle’s proposed scope of work. Kuranda Direct p. 3 (Pinnacle Ex.KM K-D ). Pinnacle continued to coordinate with SH PO throughout the investigation. Id.As was approved by SHPO, the scope of work included a study of an area of potential effectsof all areas in West Virginia that were within five miles and in the viewshed of the Project(Project APE). Tr. pp. 109-110 (Kuranda) (Oct. 27,20 09) .

With respect to architectural resources, Pinnacle engaged in archival research atKeyser-Mineral County Public L ibrary, Potomac State College, West Virginia Division ofCulture and History, and other repositories. Kuranda Direct p. 4 (Pinnacle Ex. KM K-D).This research was undertaken to identify previously recorded historic properties and todevelop the historic context appropriate to the assessment of previously unidentifiedresources. In addition to the background research, Pinnacle also engaged in a Phase IArchitectural Survey including a field inspection to locate historic buildings in the Projectarea as well as a public outreach effort designed to obtain data on historic properties andareas of historical concern to the general public. These investigations were conducted prior


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to th e filing of the Application and the details of these investigations were presented in theApp lication, including a copy of the Phase I Investigation for A rchitectural and StructuralResources. Application App. X (Pinnacle Ex. 1). Through its coordination with SHPO,Pinn acle has also already completed its Phase I1 Investigation for Architectural and StructuralResources. Id.

In com pleting its scope of work, Pinnacle identified two resources that are listed onthe NRHP: (1) the Mineral County Courthouse, listed in 2005, and (2) the Thomas R.

Carska don House, designated in 2002. Kuranda Direct pp. 8-9 (Pinnacle Ex. KMK-D).Pinnacle concluded, however, that neither resource w ould be directly affected by the Projectand that unrelated con temporary construction already is present within the viewshed of theseproperties and therefore a visual impact already exists. App . X Phase I1 Investigation p. 6(Feb . 2009 Draft Final Report) (Pinnacle Ex. 1); Tr. pp. 132-133 (Kuranda) (Oct. 27,200 9).

Additionally, there were eighteen historical structures that met the NRH P criteria forsignificance and integrity, most of which were dwellings. Id. . 6; Pinnacle Ex. 2 Att. 1 . On

March 12 ,20 09 , SHPO con cluded that the eighteen structures were within the viewshed ofthe P roject and would thus be indirectly affected by it. As a result, Pinnacle agreed to enterinto a Memorandum of Agreement (MO A) with SHP O. Pinnacle Ex. 2. The execution ofthe M OA with SHPO completes SH PO's consultation on the Project, and no further actionfrom S HP O is anticipated. Tr. p. 139 (Kuranda) (Oct. 27 ,20 09 ). Moreover, as a result ofthe MOA , no further coordination with SH PO is required on architectural resources. Id.

AF A also argued that the evidence before the Comm ission was incom plete becausehistoric and cultural resources located in Maryland, but within five miles of the Project,might be affected. Initial Brief pp. 12- 13. AFA presented no testimony about any such

effects. Further, Pinnacle argued that nothing in the Lonnview Power balancing test or W.Va. Code 8 24-2-11c requires the Commission to investigate and evaluate historic andcultural resources located in other states. Pinnacle's consultants worked with the WestVirginia State Historical Preservation Office and SHPO d id not ask Pinnacle to consult withthe M aryland office. Reply Brief pp. 16-18. When the Pinnacle consultants worked on aMaryland wind farm project that could be seen in W est Virginia, Maryland officials likewisedi dn ot request that West Virginia SHPO be consulted. Tr. pp. 136-137 (Kuranda) (Oct. 27,2009). AFA did not introduce any evidence of historic or cultural resources in Marylandwithin the view shed of the Project or w hether any such resources, if they exist, would beadversely affected by the Project. Reply Brief pp. 17 -18. Furthermore, Ms. Kurandatestified that consu ltation with multiple jurisdictions or at the federal level occurs on ly whenthere is a federal nexus, such as federal funding, and none of those conditions is present inthis case. Tr. p. 137 (Kuranda) (Oct. 27 ,20 09 ).

Th e W est Virginia State Historical Preservation Office does not h ave authority tomak e evaluations in the State of Maryland. The Historic Preservation Offices of both statespossess specialized experience and knowledge of resources within their own borders.Furtherm ore, they each are aware of the existence of preservation offices in other states. If

Public Service Commissionof W e s t Virginia

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a h tu re West Virginia project will impact resources of historic or cultural value located inanother state to such a degree that this Commission should take those circumstances intoaccount or w hen there is a federal nexus, then the C omm ission expects that SH PO wouldrecommend that the Commission consider such effects and the parties would presentevidence in that regard. As a general matter, though , based upon our experience to date, theComm ission expects that such recommendations would be quite rare. The record we are

evaluating for the Pinnacle siting certificate application does not contain any evidence ofresources in Maryland or of any recommendation by SH PO for this Com mission to considerany effects upon Maryland resources. Pinnacle's obligations related to consultation withSH PO regarding cultural and historic resources have been satisfactorily completed.

With respect to the identification of archaeolog ical resources, Pinnacle conducted aPhase I Archaeological Survey, which encompassed approximately 450 shovel tests at theProject site with more than 2,800 shovel test locations examined but not excavated due toexcess slope, exposed rock, or rock immediately beneath leaf litter. Application App . X(Pinnacle Ex. 1); Maymon Direct p. 4 (Pinnacle Ex. JHM-D). Nine archaeologica l sites were

identified within the survey area, Five of the sites were property boundary markers. Twoother sites were possible historic stills near Green Mountain Road . Another site consists of

a single isolated chert flake, and the final site is characterized by a cluster of 60 rock cairnsand walls. Id. . 5. Through the MOA, Pinnacle has agreed either to avoid these areas, or,if avoidance is not possible, to consu lt with SH PO to assess significance. According to theMO A, if Pinnacle and the SHPO agree that the sites do not qualify as historic properties, thenno h rt h e r work will be required. If it is determined that avoidance of an eligiblearcheological site is impracticable, Pinnacle will consult with SHPO to develop a treatmentplan consistent with the Secretary of the Interior's Standards and Guidelines forArcheological Docum entation and SHPO Standards. Pinnacle Ex. 2.7

l e. Water Resources

Pinnacle concluded that no substantial change in the water budgets on GreenMountain is expected to occur as a result of construction of the proposed Project and that nodetrimental effects to water resources are anticipated. Application pp . 63-66 (Pinnacle Ex.1). Pinnacle based its conclusion on the following: First, the high ridge location for theturbines results in little interaction with surface water, other than precipitation that falls onthe ridge top. As the Project is located along a hydrologic divide, storm water either

infiltrates or runs of f the ridgeline to the east or west. Second, the major aq uifers used aswater supp lies within one mile of the Project are fractured bedrock aqu ifers, and no watersupplies are located w ithin the P roject construction area itself. Id. p. 64-65.

Pinnacle also identified recreational areas near the Project and concluded that the impacts onrecreation areas would be limited to visual impacts. Pinnacle noted that because most of therecreational areas are more than tw o miles from theProject, potentialyiews ofthe Project from theserecreational areas would be limited due to existing terrain and vegetation.


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Third, Pinnacle will plan construction to avoid surface water bodies and wetlands.Storm water runoff and sediment will be controlled during and after construction. Pinnaclewill implement the necessary groundwater protection, storm water pollution prevention andspill prevention control and countermeasure plans to prevent potential contaminants from

affecting the surface water bodies, wetlands, or aquifers. Id. . 66 . Thus, storm watercontrols will be in place during construction and operation of the facilities to counteract the

effects of the changes in land cover. These storm water controls ensure that the pre-construction balance of recharge and runoff is maintained and that peak storm flow s do notexceed pre-construction conditions, as per applicable regulations. Moreover, the storm watercontrol design will be based on all soils being class C , which, according to Pinnacle, is aconservative design assumption and will result in safer design for both controlling stormwater and preserving recharge.' l_d. pp. 64-65.

With respect to wetlands, CM E Engineering LP surveyed the proposed Project areain general conformance with the Federal Routine Determination Method presented in the1987 United States Army Corps of Engineers Wetlands Delineation Manual. Application

App. 0 p. ii (Pinnacle Ex. 1). No wetlands were identified within the area to be disturbedby the construction of the wind turbines, roads, or ancillary equipment, and only 0.783 acresof the site satisfy the criteria to be classified as a wetland. l_d. Pinnacle also provided to theCommission the Wetland Delineation Report of the Pinnacle Project, Piedmont, Elk, andNew Creek Districts, Mineral County, West Virginia, January 27,2009. l_d.

Upon review, the Commission concludes that Pinnacle has provided sufficientinformation related to the we tlands delineations in support of its Application.

5 . Proposed Conditions and the Mem orandum Agreement

The Parties in the Joint Stipulation agreed to several conditions, most of w hich areidentical or virtually identical to conditions that the Com mission has imposed in previoussiting certificate cases. The Com mission will address each condition below.

Preconstruction Certificate Issues

1) Prior to commencing construction, Pinnacle must file a verified statement

indicating that all pre-construction conditions and requirements of thecertificate have been m et.

Pinnacle also noted that the turbine array and connecting roadways will be constructed on bedrockof the Pottsville Group and Mauch Chunk Group, which outcrop on top of the ridge. No portion of

the Project is located within a karst area. Limestone of the Greenbrier Formation outcrops below thesite, along the steep eastern slope of the mountain, but will not be disturbed by construction.Application p. 66 (Pinnacle Ex. 1).

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writing in this case of any such finding within ten (10) days of any suchfinding being made. Furthermore, the Com mission may seek any legalremedies it has jurisdiction to seek, including injunctive relief, to add ress anysuch findings.

Pinnacle must A) construct and maintain a fence around the operation and

maintenance building and substation; B) lock all turbine tower doors unlessaccess is needed for m aintenance purposes and C) for the life of the project,install and maintain safety hazard signs at appropriate intervals around theproject’s perimeter, at the operation and maintenance building, substation,turbine towers and any other location(s) where safety hazards are of concern.

Prior to com mencing construction, Pinnacle will have ob tained a report from

a qualified independent third party regarding a decomm issioning fund to coverthe dismantling of the turbines and towers and land reclamation. The reportof the qualified independent party will provide the analysis to set the fund

amoun t. The report shall be updated thereafter as mutually agreed betweenPinnacle and the Mineral County Commission, but no less frequently thanevery five years thereafter. The fund amoun t will vary over time dependingon changes in the estimated market or salvage value of the Project, theestimated cost of dismantling and removing the turbines, and the expectedongoing life of the Project. Pinnacle will obtain the approval of the MineralCoun ty Commission of the evalua tive expert and each of the periodic reports.The decom missioning fimd shall not be part of Pinnacle’s assets. Within 90

days of any report that requires a contribution to the decomm issioning fund,

Pinnacle will make that con tribution into an escrow account held by an agentpursuant to an escrow agreement between Pinnacle and the Mineral CountyComm ission. The methods for deposits to and disbursements from the fundshall be established within and governed by the escrow agreement.Furthermore, the escrow agreemen t must clearly reflect the role of the MineralCounty Commission and state that the obligations set forth in the escrowagreement apply to Pinnacle, its successors, and assigns. The escrowagreemen t and each report of the qualified independent third party will also befiled with the Commission as a closed entry in this matter. The Com missionretains the right to hire its ow n evaluative expert to review any of the periodic

reports and to take such further action within its jurisdiction as theComm ission determines is necessary to protect the public interest.

These eleven conditions are identical to the General Preconstruction and ConstructionCertificate Issue cond itions imposed in the New Creek proceeding and are reasonable in thisproceeding, and there is no reason to depart from that approach for the Pinnacle Project.

AF A presented no evidence on the m atter but suggested that any consultant retainedand com pensated by Pinnacle could not offer an independent analysis and suggested that the


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Comm ission adopt the decommissioning approach enacted by the County Com mission ofAllegany County, Maryland. AFA Ex. 1 p. 6. AFA argued that no party presented anyevidence suggesting why the Public Service Com mission should accord less weight to theinterests of Mineral County residents than the Allegany County Commission has seen fit toaccord to the interests of its constituents. AFA argued that the Comm ission should requirePinnacle to post a bond, prior to comm encement of construction, of (a) $150,000 per turbine;

(b) an amount per turbine not substantially less than $150 ,000; or (c) an amount approvedby the Mineral C ounty Commission. AFA argued that such an approach would ensuresufficient fi nd s for decommissioning and eliminate the need to expend further Comm issionresources to evaluate the adequacy of a decomm issioning fund years into the future. ReplyBrief pp. 10-1 1.

The Commission’s approach has been adopted in several siting certificateapplications, and we have not been persuaded by AFA to modify our approach. Contrary tothe AFA suggestion, our approach is balanced in that it requires the participation of theMineral County Com mission and an escrow agent, as well as the filing of the periodic reports

with us. Moreover, because no wind project in West Virginia has yet been decommissioned,we find it to be in the public interes t, and not an imprudent use of state resources, for theCommission to remain involved in the decommissioning process under the parameterscontained in Pre-Construction Condition 11.

General C onstruction and Operational Phase C ertificate Issues

1) During construction, Pinnacle will:

Require contractors to use standard noise buffers on all constructionequipment and trucks;

Require contractors to use pile-driving equipment that has the leastnoise impact;

Perform construction activities mostly during the daylight hours;

Avoid noise impacts at certain noise sensitive locations, such as a

church, during the weekend church activities and services and duringother normally scheduled church weekday activities;

Limit any dynamiting to daylight hours and follow all State and Federalrules, regulations, and/or laws.

2) Pinnacle must coordinate with appropriate fire, safety and emergencypersonnel during all other stages of the Project, including Construction and

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Operations, to promote efficient and timely emergency preparedness andresponse.

3) Pinnacle must file evidence of its EWG status from FERC prior tocomm encing generation of electricity.

4) If Pinnacle-seeks to transfer its certificate, Pinnacle is required pursuant toSiting Rule 7.1 to notify the Commission in writing of the identity of thetransferee and submit an affidavit from the transferee attesting to thetransferee’s willingness to ab ide by the terms of a siting certificate, as issuedin the Order. This condition applies at anytime - not just in the operationalstage.

This Commission imposed these four conditions in the Laurel Mountain and NewCreek proceedings, and in the opinion of the Com mission, they are reasonable. There is noreason to depart from that approach for the Pinnacle Project. We have revised the wording

of Condition 3 above, changing “operation” to “generation of electricity,” to m ake clear thatPinnacle does not have to file evidence of its EWG status before it may begin construction.

5 ) Pinnacle will consult with representatives of Comm ission Staff, the U S . Fish& Wildlife Service, and the West Virginia Division of Natural Resources(collectively, the Technical Advisory Committee) on the scope, developmen t,and implementation of bat and avian post-construction studies (Studies) tocomm ence within a reasonable time, and in any event no later than one yearfollowing the comm ercial operation date of the Project:

a) The Studies will assess the Project’s impact on bat and avian life, thepotential for adaptive management strategies or other agreed-uponmeasures to m itigate those impacts, the expected cost ofth ose strategiesover a range of m itigation effectiveness levels, and any other aspects ofwind turbine interactions with bats or avian life identified and agreedto between Pinnacle and the Technical Advisory Com mittee;

b) Pinnacle com mits to conduct up to three years of Studies. To the extentthat Pinnacle and the Technical Advisory Com mittee determine, based

upon the results of the Studies undertaken during the first year ofcomm ercial operation, the Project is not expected to have a significantimpact on bat or avian life, Pinnacle and the Technical AdvisoryCommittee will consider in good faith whether additional Studiesduring the second and third years of Project operations are necessaryand cost-justified, and whether the scope of any such Studies duringthose years might reasonably be modified. Although it may choose todo so , Pinnacle will have no obligation to conduct any Studies beyondthe third year of comm ercial operation;


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c) Pinnacle will file copies of each Study with the Commission andprovide copies to each member of the Technical Advisory Com mitteewithin thirty days of its completion.

6 ) If the Studies demonstrate that the Project causes significant levels of bat oravian mortality and that adaptive managem ent strategies or other agreed-upon

measures are proven to be effective and are economically feasible fromPinnacle’s perspective, Pinnacle shall implement those strategies.

This Com mission imposed similar conditions to numbers five and six in New Creek,but the inclusion of avian life in the studies was left to the judgment of the TechnicalAdvisory Team in New C reek, under the label “Consulting Team .” In this case, the Staff,among other things, recommended that studies on bird and bat life be conducted for amandatory three years. Walker Direct p. 18 (Staff Ex. 2). In entering into the JointStipulation, the Stipulating Parties agreed to allow discontinuation of such studies in theevent that no significant impact on bat and avian life is found within the first year ofcomm ercial operation of the Pinnacle Project. The Com mission believes this condition isreasonable and should be adopted.

Furthermore, we have modified the wording of Condition 6 above slightly to clarifythat Pinnacle should implement adaptive management strategies and other agreed-uponmeasures that have been proven to be effective and can be economically implemented byPinnacle.

In its Reply Brief, AFA suggested that the Commission enlarge the membership of

the Technical Advisory Team to allow participation by a representative of (1) a statewideenvironmental organization with 500-plus members and in existence for at least ten years,(2 ) a statewide bird group, and (3) a private or academ ic institution with a background inavian issues as was approved in Beech Ridge. Reply Brief p. 11. In the several sitingcertificate orders issued since the 2006 order in B eech Ridge, Staff has recomm ended a morestreamlined team and we have adopted S ta ff s recommendation. Based on our experience,we see no reason to depart from that approach for the Pinnacle Project.

7) Pinnacle will minimize the visibility of the Project by only using project

lighting in the presence of the Project’s personnel and any other personsautho rized to be in the area except that Pinnacle may use Project lighting asrequired by the Federal Aviation Administration and any applicable fire orsafety code, regulation, or accepted good utility practice.

8) In the unlikely event that the blasting associated with construction activitiesnegatively affects the groundwater aquifer on or around Green Mountain,Pinnacle will take immediate steps to resolve such negative effects.


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9) Pinnacle must file copies of the remaining interconnection studies and finalinterconnection agreements prior to comm encing operation.

This Comm ission imposed these three conditions in the New Creek proceeding, andthere is no reason to depart from that approach for the Pinnacle Project.

10 ) Comm itments in R espect of Turbines in Proximity to Green M ountain Road.

a) In the micros iting process, Pinnacle will ensure that Turbine 17 is sitedand constructed not less than 418.31 feet from the nearer edge of theright-of-way for Green Mountain Road, a distance representative of l xturbine height.

b) To account for the proximity of Turbines 16 and 17 to Green MountainRoad, Pinnacle will be required to develop and im plement operational

constraints on the operation of Turbines 16 and 17. During periods inwhich weather conditions at the Project site are favorable for icebuildup on the turbine blades of Turbines 16 and 17, Pinnacle will shutdown and discontinue operations of Turbines 16 and 17, whethermanually, through automated mechanisms, or both.

These commitments by Pinnacle in the Joint Stipulation stem from a concernpresented by Staff in the direct testimony of Mr. Walker, who recommended that a turbinesetback of 1S x he com bined height of the tower, turbine, and maximum blade height fromresidences, roads, and power lines should be imposed. Walker Direct p. 19 (Staff Ex. 2).Sta ff asserted that the setback w ould assist in ensuring safety at the Project site by reducingthe harm to the public that cou ld result from tower failures, ice shedding , or blade throws.-d. pp. 12-14. To avoid the cost to Pinnacle that would be required to redesign the project,the Stipulating Parties agreed that the com mitments by Pinnacle stated above would ensurethat the closest turbines to Green Mountain Road are at least fall-down distance from theroad and that additional safety measures be taken in times of icy weather conditions.

In its Reply Brief, AFA urges the Comm ission to adop t the position initially proposedby Staff. Reply Brief p. 1 2.

In response to the Proposed O rder filed by Pinnacle, Comm ission Staff asked that thefinal Com mission order contain a statement for “F uture Applicants” that acknowledges thatCommission Staff will pursue a standard tower minimum setback of 1 . 5 ~imes the totalturbine height from roads, homes, transmission lines, and so forth. Response to ProposedOrder p. 1 (Nov. 16 ,200 9).

The Commission concludes that it is reasonable to approve the commitmentscontained in the Joint Stipulation, which represent comp romise and negotiation.


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It is not appropriate, though, for this Order to be used as a vehicle to attempt toprovide notice of any future positions that may be taken by Staff. Staff remains fre e toformulate and present any position, based upon the particular facts of future cases. If S taffintends to recommend a setback of 1 . 5 ~otal height, such position should be supported bymore than a general allegation that such a setback is necessary.

11) Continuation of Mem orandum Agreement with Trades Council

The Stipulating Parties also agreed that the Commission should approve theMem orandum Agreement dated May 29, 2002, between U.S. Wind Force and the T radesCouncil and make clear that the Commission anticipates that all representations andcomm itments made by the parties therein will be kept by the parties. The Stipulating Partiesalso agreed that the Commission should make clear that its approval of the MemorandumAgreement does not mean the Comm ission is the proper forum to resolve any disputes thatmay arise from operating under the Agreement.

The Comm ission has in a previous siting case approved the Mem orandum Agreementand ordered that “all representations and comm itments made by the parties therein be keptby the parties.” Mt. Storm Wind Force, LLC, C ase No. 01-1664-E-CN (Com m’ Order p. 3 1Aug. 29,2 00 2). We see no reason to depart from this conclusion and order. We do note, aswe have in the past, that approval of the Memorandum A greement by the Comm ission doesnot mean the C omm ission is the proper forum to resolve any disputes that may arise fromoperating under the Agreement.

C. The Application of Part Two of the Balancing: Test

As is explained in Part One above, the Com mission concludes that taken as a w hole,the positive impacts relating to the various interests outweigh the negative impacts on thevarious interests in this matter. See W. Va. Code fj24-2-1 lc(c ). In Part Two of that test, theCom mission decides whether a project’s public funding, if any, and property tax abatement,if any, offends the public interest.

Pinnacle testified that no public funding or property tax abatem ent was involved with

this Project. Friend Direct p. 13 (Pinnacle Ex . DF-D). Staff agreed with this conclusion.Kellmeyer Direct pp. 2-3 (Staff Ex. 1). Because there is neither public funding nor propertytax abatem ent with the Pinnacle Project, no further ana lysis is needed. Based on the recordthen, the Com mission concludes that Pinnacle should be issued a siting certificate for thisProject.

In the Application, Pinnacle indicated that the federal government is consideringprograms that could provide funding to foster the development of renewable energy projects,Pinnacle might seek funding under the program, and if it does so, Pinnacle will promptly


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7. Pinnacle will file for Exem pt Wholesale Generator Status with FER C andintends to operate as an Exempt Wholesale Generator. Rates charged for the Project’selectricity would be subject to regulation by FERC. Pinnacle intends to file a market-basedschedule with FERC for negotiated rates. Application pp. 3, 9 (Pinnacle Ex. 1); FriendDirect p. 12 (Pinnacle Ex. DF-D ).

14 . If the federal government establishes a renewable energy funding project,Pinnacle may seek fundin g under such a program. Pinnacle will promptly notify theComm ission if such funding is obtained. Barnes Direct p. 13 (Pinnacle Ex. JDB-D ).

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8. Upon the completion of the Project, the Project will be used by Pinnacle togenerate electricity exclusively for wholesale sales in the compe titive market, and P.innaclewill bear the full financial risk associated with the construction and operation of the Project.No West Virginia utility ratepayer will bear any financial risk associated with the Project.Application p. 3 (Pinnacle Ex. 1); Friend Direct p. 13 (Pinnacle Ex. DF-D).

9. The Project has anticipated generation capacity of 55.2 MW . Application p.16 (Pinnacle Ex. 1).

10. The Project will require the construction of about 0.75 mile of 138 kV

transmission line to connect the Project substation with the interconnection switchyard.Friend Direct p. 9 (Pinnacle Ex. DF-D).

11. A collector system of buried cables will conduct electricity at 34.5 kV to a newcollection substation located west of the turbine array. From the collection substation, powerwill be stepped up to 138 kV, moved through a new 0.75-mile overhead 138 kV line, and willinterconnect with a new C ross School 138 kV interconnection substation on the Albright -Black Oak 138 kV circuit. Id. . 17. Application pp. 16-17 (Pinnacle Ex. 1).

12 . Pinnacle has received a completed Feasibility Study and a com pleted SystemImpact Study from PJM. Pinnacle will enter into all necessary remaining agreements withPJM to govern the Project’s operation and interconnection with the Cross School 138 kVinterconnection substation on the Albright -Black Oak 138 kV circuit. Application pp. 26- 27 (Pinnacle Ex. 1); Friend Direct p. 12 (Pinnacle Ex. DF-D).

13, The Project will not be funded by public sources, and there are no agreementswith public entities for any tax abatemen ts. Pinnacle has not received any loans, grants, orcontributions from the state or federal government. Application p. 69 (Pinnacle Ex. 1);Barnes Direct p. 13 (Pinnacle Ex. JDB-D).

15. The Project has been developed by U S . Wind Force with a joint venturepartner, Edison Mission Group (EMG ). Application p. 30 (Pinnacle Ex. 1). After the Projectis constructed, it is expected that EMG will purchase Pinnacle, including all rights to andobligations of the Project, and EMG w ould then own and operate the Project. Id. . 46.

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16 . The Project w ill generate approx imately $430,000 per year in property taxesfor Mineral C ounty. Pinnacle will also pay various State taxes of approxim ately $603,000during construction and $43,000 per year when the Project is operational. Application p. 71(Pinnacle Ex. 1).

17 . Pinnacle will establish a Com munity Benefit Fund and make a contribution to

that fund of $50,000 in the first year of Project operation and $20,000 per year during the lifeof the Project. The Comm unity Benefit Fund will be managed exclusively by the localcommunity and designed to provide investments in the communities near the Project.Application p. 109 (Pinnacle Ex. 1).

18 . On March 2 4,2 00 9, Pinnacle published notice of its filing of an Applicationfor a Siting Certificate in the Mineral Daily News-Tribune in Mineral County and theCharleston Gazette in Kanawha Coun ty. Affidavits of Publication (filed Mar. 30, 2009).Pinnacle also placed copies of the Application, including appendices, in the Keyser PublicLibrary, at the Elk G arden Com munity School, and the Piedmont Public Library.

19. The Com mission conducted two public comm ent hearings in Keyser onSeptember 24,2009, at 2 p.m. and 7 p.m. Forty-nine people commented at the hearings- 0individuals spoke in favor of the Project, while nine spoke against the Project. See generallyTranscripts (a.m. Sept. 24,200 9, and p.m. Sept. 24,2 009 ).

20 . By year end 2009, com ment letters filed with the C omm ission in support of theProject numbered about 163, and comment letters filed in opposition numbered about 33.

21. On September 25, 2009, the Com mission conducted a View, under theguidelines established by the Comm ission and agreed to by the parties, and visited fourteensites in or near the Project area.

22 . On Octobe r 9,2009 , a Joint Stipulation was filed by Pinnacle, Staff and TradesCouncil, recommending that the Commission issue an order granting Pinnacle a sitingcertificate to construct the Project, sub ject to several agreed preconstruction, construction,and operational conditions.

23. The Project will provide needed energy and capacity to the electric power

system, help to serve load and maintain overall system reliability, and provide generationfrom a renewable resource. Application pp. 8-13 (Pinnacle Ex. 1).

24. The annual net capacity factor for the Project will be approximately 35 percent.Based on that factor, the Project is expected to generate approximately 169,243 MW h peryear for the life of the Project. Application p. 17 (Pinnacle Ex . 1).

25. The 2009 PJM Load Forecast Report predicted both short-term and long-termload grow th in the PJM service area, with summ er peak dem and levels expected to increase

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by 1.4 percent annually over the next fifteen years. The PJM summ er peak is predicted toreach 158,617 MW in 2019 and 166,581 MW in 2024. Application pp. 8-9 (Pinnacle Ex.

1).

26. The PJM winter peak load is projected to increase 1.1 percent per year over thenext fifteen years, with the winter peak load forecast to reach 127,440 MW in 2018-19 and

132,599 MW in 2023-24. Application pp. 8-9 (Pinnacle Ex. 1).

27 . The Obama Administration’s New Energy for America plan calls for tenpercent o f the nation’s electricity to be supplied by renewable sources by 20 13 and twenty-five percent by20 25, and a 2009 federal Department of Energy study outlined the importanceof wind energy as a renewable energy source with no emissions. Application pp. 8-9(Pinnacle Ex. 1); Friend Direct p. 11 (Pinnacle Ex. DF-D).

28. The Energy Portfolio Act became effective in West Virginia on July 1,2 009 ,and was amended in November 2009. Wind power is one of the resources that electric

utilities may use to satisfy the alternative and renewable energy portfolio standard. W. Va.Code 5 24-2F-1 et seq.

29. Pinnacle’s study of the economic impacts of the Project used the IMPLANmodel to estimate the jobs and econom ic impact associated with constructing and operatingwind power plants in the United S tates. Application App. N (Pinnacle Ex. 1); Childs Directp. 3 (Pinnacle Ex. RAC-D p. 3).

30. The Project will support up to 3 10 jobs during the construction period, with275 of them being in Mineral County. Application p. 71 (Pinnacle Ex. 1 ).

31 . The Project will generate about $421,000 in taxes for Mineral County and$603,000 in taxes for the State during the construction period. Application p. 71 & App. Np.2 (Pinnacle Ex. 1).

32. The Trades Council also presented an economic study based on the IMPLANmodel. Trades Council Ex. 1.

33. New wages for the construction and other new jobs will total $14.2 million;

profits for the self-employed would be $1 million, and corporate profits would be $2.8million. Trades Counc il Ex. 1.

34. Pinnacle entered into a Mem orandum Agreement with the North Central WestVirginia State Building and C onstruction Trades, AFL-CIO relating to the construction of


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35 . The size of the Project and the amount of construction employm ent will havea positive im pact on the local economy and local employment. Trades C ouncil Ex. 2 pp. 2-3(Snyder).

36 . During operations, the Project will employ approx imately 15 individuals andgenerate about $2 .7 million in business volume annually for the local economy. Application

App. N p. 3 (Pinnacle Ex. 1).

37 . Visual impacts within one mile will be minimal as public viewpoints of theProject within this range are limited to local roads on Green Mountain (e.g., Pinnacle Roadand Hoover Hollow R oad). Application App. J pp. 8-9 (Pinnacle Ex. 1); DeW an Direct pp.7-8 (Pinnacle Ex. TJD-D).

38. From a distance of one to five miles, the Project will be visible from a numberof public viewpoints. How ever, the dense roadside vegetation and rolling hills will limit itsvisibility. Application App. J p. 9 (Pinnacle Ex. 1); DeW an Direct p. 8 (Pinnacle Ex. TJD-

D).

39. Beyond five and up to 20 miles, turbines will be seen only if they noticeablycontrast in form or line with the landscape and weather conditions are favorable. The effectsof distance and haze will obliterate the surface textures, detailing, and form of Projectcomponents, and objects seen at this distance will be highly visible only if they present anoticeable contrast in form or line and when weather conditions are favorable. ApplicationApp. J p. 9 (Pinnacle Ex. 1); DeW an Direct p. 8 (Pinnacle Ex. TJD-D).

40 . Portions of the Allegheny Wildlife Management Area (WMA ) may have viewsof the Project, but these views would most likely be filtered by dense hardwood vegetation.From the Allegheny WM A’s abandoned fire tower, the turbines w ill be seen in a relativelytight cluster, as part of a broad landscape including multiple other man-made structures.Application App. J p. 10 & App. D, Viewpoint 8 (Pinnacle Ex. 1); DeW an Direct p. 9(Pinnacle Ex. TJD-D).

41 . Portions of the Project will be visible from less than 20% of the surface ofJennings Rando lph Lake because of the nature of the landscape, intervening topography, andsurrounding forest cover. Application App. J p. 12 (Pinnacle Ex. 1); DeW an Direct p. 10

(Pinnacle Ex. TJD-D ). The majority of the views of the turbines from the water will be atthe northern end of the lake in Maryland, including the Maryland Overlook, where theturbines will appear relatively small in comparison to other visible man-made structures.Application App. J p. 13 (Pinnacle Ex. 1); DeWan Direct p. 10 (Pinnacle Ex. TJD-D).Pinnacle also noted that at other locations on the lake, only the tops o f turbines will be visibleand that intervening vegetation may block the view of the turbines. Application App. J p. 13(Pinnacle Ex. 1); DeW an Direct p. 10 (Pinnacle Ex. TJD-D) .


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42. Pinnacle provided nineteen photosimulations from the Project area. Thephotosimulations were representative of the area and provided the Com mission with viewsof scenic overlooks and Project views that will be most evident to the public. Applicationp. 59 & App. J; Tr. p. 52 (DeWan) (Oct. 26 ,200 9).

43. Som e of the towers must be lit for aviation safety. P innacle will use lighting

as required by the FAA and any applicable fire or safety code, regulation, or accepted goodutility practice, but otherwise will limit lighting for the Project. Application p. 61; JointStipulation p. 16.

44. From November 28 to December 11,2007, Acentech conducted an ambient

noise monitoring program at five locations near the Project site. Application Ex. 1 App. U

Table 1 (Pinnacle Ex. 1); Barnes Direct pp. 7-8 (Pinnacle Ex. JDB-D).

45. The noise mon itoring locations were selected by evaluating topographic maps,aerial photography , and field investigations to identify noise-sensitive locations. All five

monitoring locations were located in residential areas. The selection of these locations wasdesigned to collect sound data representative of ambient conditions of residences in each ofthose areas near the Project. Tr. p. 80 (Barnes) (Oct. 27, 200 9).

46 . Am bient sound levels varied widely depend ing on the time o f day, wind speedsand location. The existing day-night average noise levels were from 49 to 63 dBA , with anaverage value of 54 dBA. Application p. 86 (Pinnacle Ex. 1).

47. In conducting the ambient sound study, Pinnacle effectively addressed anyissue of contamination that may have occurred from wind noise artifact by using anappropriate wind screen and following the applicable AN SI standards. Application App. Up. 3 (Pinnacle Ex. 1).

48. Not all-rural areas have the same ambient sound levels. A windy area likeGreen Mountain is necessary to support a wind project. The results of the ambient noisemonitoring study were within the expected range for a windy rural area. Cf . Beech RidgeEnergy LLC, C ase No. 05-1 590-E-CS (Comm ’n Order p. 49 Aug. 2 8,2 00 6) (recognizingambient noise levels in excess of 50 &A in rural area).

49. Acentech developed a noise mode ling study using the comm ercially availableCadnaA model to evaluate Project operational and construction sound levels. CadnaA is a

sophisticated model used ex tensively by acoustical consulting firms and regulatory agenciesfor wind power projects. C adnaA was used in the Laurel M ountain and Beech Ridge windpow er proceedings before this Comm ission. CadnaA is able to include the effect ofspreading losses, ground and atmospheric effects, shielding from terrain, and reflections fromsurfaces in its calculations.


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50 . Acentech built several assumptions into its operational sound study thatresulted in a conservative calculation, Le., higher sound levels: (1) standard atmosphericconditions that are favorable to sound propagation, (2) all turbines operating at maxim umsound output at the same time, (3) a moderate temperature inversion, and (4) all receptor

locations were downwind of all turbines at all times (a physical impossibility). Barnes Directpp. 10, 12-13 (Pinnacle Ex. JDB-D).

5 1. Acentech obtained the maximum sound levels from the manufacturers of theturbines and used these maxim um sound levels in the operational model. Barnes Direct p.3 (Pinnacle Ex. JDB-D); Application App. U (Pinnacle Ex. 1).

52. The maximum operational noise level for the most affected residence is 56dBA DNL. All other landowners have an anticipated sound level at or below 55 dBA,expressed as a DNL. Application A pp. U pp. 8-9; Barnes Direct p. 16 (Pinnacle Ex. JDB-D ).Pinnacle has entered into agreements with the owners of these residences. Application p. 88(Pinnacle Ex. 1).

53 . A few residences are located within 1,500 feet of the Project, and Pinnacle has

entered into an agreem ent with each of those landowners to alleviate sound concerns relatedto the Project. Tr. pp. 81-84 (Barnes) (Oct. 27, 200 9).

54 . To both protect public health and welfare and provide a safety margin, theUnited States Environmental Protection Agency recomm ends an outdoor noise level of nohigher than 55 dBA DNL for any residential areas, farms or areas where people spend timeoutdoors. Barnes Direct p. 6 (Pinnacle Ex. JDB-D); Tr. p. 70 (Barnes) (Oct. 27 ,200 9).

55. Technolog ical advances have been made in sound control for wind turbines,and modern wind turbines do not generate a significant amount of operational noise ascompared to older wind turbines. Older turbines had som e low frequency noise, aerodynamicnoise and mechanical noise problems. Barnes Direct p. 14 (Pinnacle Ex. JDB-D ).

56. The maximum construction sound level was predicted to be 59 dBA at adistance of about 1,040 feet, approxim ately the same distance as the nearest residence to theProject. Application App. U p. 5 (Pinnacle Ex. 1). The residences at that distance are underAgreement with Pinnacle. Application p. 88 (Pinnacle Ex. 1).

57. Although construction activity will be audible to nearby residents at timesduring the construction period, the overall noise impact on the com munity beyond 1,000 feetof the nearest turbine is not expected to be significant. Barnes Direct p. 10 (Pinnacle Ex.JDB -D).


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5 8 . Pinnacle filed the following surveys and assessments:111. Habitat Characterization and Assessment of Rare,

Threatened and Endangered Species for the PinnacleWind Farm, Mineral County, West Virginia, March 2009(RTE R eport),

2. Avian Risk Assessment for the Pinnacle Wind Power

Project, Mineral County, West Virginia, February 2009(Avian Report), and

3. Bat Risk Assessm ent: Pinnacle Wind Farm, MineralCounty, West Virginia, February 2009 (Bat Report).

Application A pp. R, S,& T (Pinnacle Ex. 1).II59. Throughout the studies, Pinnacle and its consultants comm unicatedperiodically

with U SFW S and WV DNR regarding survey progress and to confirm the sufficiency of the

manner in which the surveys were conducted. Application pp. 78-80 (Pinnacle Ex. 1).

60 . Collisions of breeding birds with turbines are expected to be m inimal and notlikely to result in significant mortality because m ost breeding birds rarely fly at rotor heightduring the nesting season. Application App. S Ex. Summary p. 1 (Pinnacle Ex. 1).

Although there may be ephemeral impacts to brush and forest edge spec ies, those effects arenot different from those associated with any normal harvesting of timber in that occurs inAppalachia. Id. . 13.

61 . The Project site is not an important migration area for most raptors.Application pp. 11-12 (Pinnacle Ex. 1).

62. Golden Eagles were observed during the spring and fall seasons in numbersgreater than at most haw k migration sites in the eastern United States, suggesting that Green

Mountain is an important area for Golden Eagle migration, As a result, Pinnacle decided toeliminate a second string of turbines about one-half mile to the west of the ridge-top, therebyreducing potential risk to those birds. Application p. 11 (Pinnacle Ex. 1).

63. Nocturnal migration at the Project site will, in all likelihood, be similar inpassage rate, d irection, and altitude to what has been reported in dozens of radar studies thathave been done in the eastern United States, and night migrants likely will be distributedacross a broad front as they migrate over the general region that includes the Project site.Kerlinger Direct p. 11-12 (Pinnacle Ex. PK-D).


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II~

64. Mist-netting surveys for the Project were conducted at eight sites during thesumm er and fall mist net seasons in 2007 , and a spring mist-netting survey was conductedin 2008, equating to 56 nights of mist-netting. Tyrell Direct p. 4 (Pinnacle Ex. K T-D).

65 . The surveys followed the m ist-net guidelines as provided in the USFWS D raftIndiana Bat Recovery Plan. Id.

66 .surveys. Id. . 5.

67 .

No threatened and endangered species were captured through the m ist-netting

The Projec t is not located in the imm ediate vicinity of hibernacu la containingthreatened and endangered bat species. Id. . 6.

68. There is no evidence of a confirmed kill of an endangered species of bat by awind turbine facility in the United States. Tr. p. 179 (Tyrell) (Oct. 26,200 9).

69. For the hydrology study, Pinnacle surveyed United States Geological Surveymaps, W est Virginia Geological Economic Survey maps, and M aryland Geological Surveymaps. It also conducted field observations for the Project area. Application pp. 62-67(Pinnacle Ex. 1).

70. No detrimental effects on hydrological resources are anticipated. P innacle willplan construction to avoid surface water bodies and wetlands. Storm water runoff andsediment will be controlled during and after construction. Pinnacle will implement thenecessary groundwater protection, storm water pollution prevention and spill preventioncontrol and countermeasure plans to prevent potential contaminants from affecting the

surface water bodies, wetlands or aquifers. The hydrological balance of recharge and runoffwill be maintained at pre-construction conditions. Id. p. 66-67.

7 1. Pinnacle consulted with SHPO concerning architectural and archaeologicalresources, completed all studies required by SHP O, and has entered into a Mem orandum ofAgreement relating to mitigation and avoidance of certain resources. Pinnacle Ex. 2; Tr. pp.118-1 19 (Kuranda) (Oct. 27 ,200 9).

72. Two cultural resources, both listed on the NRH P, are located within five m ilesof the Project: the Thom as R. Carskadon House on Mineral S treet in Keyser and the MineralCounty Courthouse on Arm strong Street, also in Keyser. The P roject will not directly affecteither structure. Application App . J p. 11 12 (Pinnacle Ex. 1);App. X Phase I1 Investigationp. 6 (Feb. 200 9 D raft Final Report) (Pinnacle Ex. 1); Tr. pp. 132-133 (Kuranda) (Oct. 27,2009).

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VI. CONCLUSIONS OF LAW

1 c(c).

2.

( 4(b)( 4

( 9(ii)

(iii)

1. This proceeding is governed by W. Va. Code 24-2-11c(c), which theCom mission has applied in its review of other siting certificate applications. In determiningwhether to issue a siting certificate under this statute, the Commission applies a two-partbalancing test. As Part One of the balancing test, the Comm ission appraises and balances

the interests of the public, state and local economy, and the applicant. W. Va. Code $ 24-2-

In applying Part O ne, the Comm ission appraises and balances:

an applicant’s interest to construct an electric wholesale generating project;the S tate’s and region’s need for new electrical generating plants; andthe econom ic gain to the State and the local econom y,

against:

comm unity residents’ interest in living separate and apart from such project;a community’s interest that a project’s negative impacts be as minimallydisruptive to existing property users as is reasonably possible; andthe social and environmental impacts of the proposed project on the localvicinity, the surrounding region, and the State.

Liberty Gap Wind Force, LLC, Case No. 05-1740-E-CS, Comm’n O rder pp. 39-40 (June 22,2007). With respect to prongs (i), (ii), and (iii), the Com mission “considers issues such asa Project ’s impac ts on existing cultural features of a community, viewshed, noise, non-listedand endangered bats.” Td.

3. If the Commission determines under Part One that, taken as a whole, positiveimpacts relating to the various interests outweigh the negative impacts on the variousinterests, then in Part Two the Commission must determine whether “the terms andconditions of any public fbnding o r agreement relating to the abatement of property taxes do

not offend the public interest, and the construction of the facility . . . will result in asubstantial positive impact on the local economy and local employment.” W. Va. Code $ 4 2 -2- 11c(c).

4. The Project will provide wholesale electric service, and there will be no directfinancial impact to West Virginia retail ratepayers.

5 . Pinnacle filed a complete Application that satisfied the requirements of theSiting Rules of the Com mission.

6 . Pinnacle dem onstrated a sufficient interest in constructing the Project. First,Pinnacle has demonstrated that it has a legitimate business purpose in undertaking the Project

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and Pinnacle retained various technical experts and developed detailed information insupport of its Application. Second, it has expended substantial time and economic resourcesto apply for a siting certificate, to pursue various other required permits, and to obtain theleases necessary to construct and operate the Project. Third, Pinnacle has spent significanttime and resources in seeking local community nput regarding this Project, Finally, Pinnaclehas comm itted to coordinating its activities with the Com mission and other state and federal

agencies.

7. The Energy Policy Act of 2005, P.L. 109-58, among other things, amendedcertain sections of the United States Code to encourage the use and development ofrenewable energy resources. See Title 11, P.L. 109-58.

8. In the Energy Portfolio Act, the W est Virginia Legislature declared that “[tlhedevelopmen t of a robust and diverse portfolio of electric-generating capacity is needed forWest Virginia to continue its success in attracting new businesses and jobs. This portfoliomust include the use of alternative and renewable energy resources at new and existing

facilities.” W . Va. Code 8 24-2F-2(4).

9 . It is not in the public interest for this Comm ission to isolate West Virginia fromthe region. The power grid is interconnected, and to safeguard the availability of productive,well-maintained resources to our State’s residents, West Virginia must participate in theinterconnected electric system.

10. Need for this Project has been established because it is in the public interestto develop diversified sources of fie 1 to generate electricity, including renewables such aswind; additional generation capacity is needed to meet PJM ’s projected load forecast; it is

in the public interest for West Virginia to participate in the interconnected electric system;and the Project will provide power to thousands of homes at its lowest level of productivity,and its output is well-suited to deliver electricity in the winter, when heating dem and peaks,and may assist in meeting the peak summ ertime demands.

11. There will be a significant economic gain to both the state and local economyfrom the Project and construction of the facility will result in a substantial positive im pacton the local economy and local employment. At a minim um, the Project will generate up to$36.7 million dollars in state and local economic activity and in excess of 10 0 localconstruction job s and would support up to 3 10 direct, indirect and induced obs , with 275 inMineral County, and several permanent jobs thereafter, The Project will also includesignificant tax revenues for local gove rnance and public education.

12 . Based on all of the evidence and after spending an entire day touring GreenMountain, the surrounding comm unities and a portion of the property that is the site of theProject, the Commission is of the opinion that the Project is largely isolated from thecomm unity and limited to the private property near the top of Green Mountain.


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13. The viewshed of a w ind turbine project is the most sub jective and often mostdisputed issue in a siting certificate application. There is no “bright line” test for viewshed.In this situation, while individual turbine units will be visible from various locations (asdemonstrated from the View and the photosimulation evidence presented), the Commissionconcludes that the impact of the presence of the Project and view of the Project or its turbineswill be minimally disruptive to the comm unity.

14. Noise, like view, is another elusive and to some extent subjective factor in thedeliberative process of the C omm ission. N umerous factors affect the noise levels fi-om windturbine projects, including the type of turbine, weather, ground cover, distance, ambientnoise, leaf and foliage cover, elevation, wind direction, and the state of technology as appliedto wind turbines and the detection of sound from wind turbine projects.

15 . The P innacle noise study complied with Com mission requirements, accuratelyportrayed am bient sound levels that are typical for arura l community, and employed a varietyof conservative assum ptions to allow the Com mission to assess the “worst case” scenario for

the Project’s sound impacts. Based upon the totality of the evidence presented to us, theCommission concludes that the Project will emit some noise, but the operational soundlevels are expected to be similar to existing ambient sound levels and noise impacts are notexpected to be objectionable because of the Project. The Com mission also concludes that,to the extent that operational noise results in negative impacts, those negative impacts areexpected to be as minim ally disruptive to existing property uses as is reasonably possible.

16. The evidence submitted by Pinnacle concerning threatened and endangeredspecies is credible as the studies undertaken were complete, reasonable and conducted inconsultation and cooperation with the USFWS and WVDN R. No threatened and endangered

species were detected through the mist-netting surveys, and as confirmed by WVD NR, theProject area is not located in the immediate vicinity of hibernacula containing threatened andendangered bat species. No federally threatened and endangered species are expected tobreed, reside in, or use the Project area as primary habitat or breeding area.

17. Based upon our review of a significant amoun t of information concerningcultural and historical resources on and near Green Mountain, we conclude that Pinnacle hassatisfied its obligations relating to consultation with SH PO regarding cultural and historicresources.

18. The conditions contained in the Joint Stipu lation are reasonable in thisproceeding and will be adopted.

19. Taken as a whole, the pos itive impacts of the Project relating to the variousinterests outweigh the negative impacts on the various interests in this matter. SeeW. Va.Code § 24-2-11(c).

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20. Because there is neither public funding nor property tax abatement w ith theProject, analysis under Part Tw o is not needed a t this time.

21. Based on the entire record and the analysis contained in this Order, theCom mission concludes that Pinnacle should be issued a siting certificate for this Project withthe conditions adopted in this decision.

22. If Pinnacle wishes to transfer the Project to EM G, Pinnacle must com ply withSiting Rule 7.1 and, among other things, provide notice to the Com mission at least 30 daysin advance o f the closing date and an affidavit fio m EMG stating that EM G agrees that it isbound by all terms and conditions of the siting certificate.

VII. ORDER

IT IS THEREFO RE ORDERED that Pinnacle is granted a siting certificate, pursuant

to W. Va. Code 5 24-2-1 IC , for the Project sum marized in this O rder and m ore h ll ydescribed in the App lication, subject to these conditions:

Preconstruction Certificate Issues

Prior to commencing construction, Pinnacle must file a verified statementindicating that all pre-construction conditions and requirements of thecertificate have been m et.

Pinnacle must not dispose of excavated rock and/or any bedding materialduring or follow ing construction of the facility by spreading the material onagricultural land.

Pinnacle must dispose of all contaminated soil and construction debris inapproved landfills in accordance with appropriate environmental regulations.

Pinnacle must design and install any needed fire protection systems inaccordance with the National Fire Protection Association or other acceptedstandards.

Pinnacle must coordinate with appropriate fire, safety and emergencypersonnel during the pre-construction stage of the Project to promote efficientand timely emergency preparedness and response.

The siting certificate will become invalid if Pinnacle has not commenced a

continuous course of construction within five years of the date the finalcertificate is granted or has not completed construction by the tenth yearwithout petitioning the Comm ission for approval to expand these time frames.


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Pinnacle must file evidence that it has obtained any necessary environmentalpermits and/or certifications prior to commencing construction (includingletters from United States Fish and Wildlife Service; West Virginia Divisionof Natural Resources; West Virginia Division of Culture and History, StateHistoric Preservation Office; and any local governmental agency requiring

permits for constructiodoperation of this project) indicating either thatPinnacle does not need to take further action or outlining what action Pinnacleneeds to take to be in com pliance with that agency's rule or laws prior to anygrading, soil excava tion, and/or habitat removal or causing a sim ilar action byothers.

Pinnacle must file a copy of the Wetlands Survey and Delineation, evidenceof approval and/or acceptance of the wetlands delineation, final endangeredspecies study with any required mitigation plans, and historical/archeologicalsignificance study with any required mitigation plans prior to commencing

construction.

Pinnacle must comply with the Endangered Species Act (16 U.S.C. 5 1531 et

seq.), the Migratory Bird Treaty Act (16 U.S.C. $ 701 et seq.), and, ifapplicable, the N ational Environmental Policy Act of 1969 (42 U.S.C. 5 4321etseq.) n both the construction and operation of the Project. If any authorizedgovernmental agency or court with com petent jurisdic tion finds that Pinnacleis not complying with any one of the above three acts in either the constructionor the operation of the Project, then Pinnacle must notify the C omm ission inwriting in this case of any such finding within ten (10) days of any suchfinding being made. Furthermore, the Commission may seek any legalremedies it has jurisdiction to seek, including injunctive relief, to address anysuch findings.

Pinnacle must A) construct and maintain a fence around the operation andmaintenance building and substation; B) lock all turbine tower doors unlessaccess is needed for maintenance purposes and C) for the life of the project,install and maintain safety hazard signs at appropriate intervals around theproject's perimeter, at the operation and maintenance building, substation,

turbine towers and any other location(s) where safety hazards are of concern,

Prior to commencing construction, Pinnacle will have obtained a report froma qualified independent third party regarding a decom missioning fund to coverthe dismantling of the turbines and towers and land reclamation. The reportof the qualified independent party will provide the analysis to set the fundamount. The report shall be updated thereafter as mutually agreed betweenPinnacle and the Mineral County Commission, but no less frequently thanevery five years thereafter. The fund amount will vary over time depending


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on changes in the estimated market or salvage value of the Project, theestimated cost of dismantling and removing the turbines, and the expectedongoing life of the Project. Pinnacle will obtain the approval of the MineralCounty Comm ission of the evaluative expe rt and each of the periodic reports.The decommissioning fund shall not be part of Pinnacle’s assets. Withinninety 90 days of any report that requires a contribution to the

decommissioning fund, Pinnacle will make that contribution into an escrowaccount held by an agent pursuant to an escrow agreem ent between Pinnacle

and the Mineral County Com mission. The methods for deposits to anddisbursemen ts from the fun d shall be established within and governed by theescrow agreem ent. Furtherm ore, the escrow agreemen t must clearlyreflect therole of the M ineral County Comm ission and state that the obligations set forthin the escrow agreemen t apply to Pinnacle, its successors, and assigns. Theescrow agreement and each report of the qualified independent third party willalso be filed with the Comm ission as a closed entry in this matter. TheCom mission retains the right to hire its own evaluative expert to review any

of the periodic reports and to take such further action within its jurisdiction asthe Com mission determines is necessary to protect the public interest.

General Construction and Operational Phase Certificate Issues

1) During construction, Pinnacle will:

Require contractors to use standard noise buffers on all constructionequipmen t and trucks;

Require contractors to use pile-driving equipment that has the leastnoise impact;

Perform construction activities mostly during the daylight hours;

Avoid noise impacts at certain noise sensitive locations, such as achurch, during the weekend church activities and services and duringother normally scheduled church weekday activities;

Limit any dynamiting to daylight hours and follow all State and Federalrules, regulations, a n d o r laws.

2) Pinnacle must coordinate with appropriate fire, safety and emergencypersonnel during all other stages of the Project, including Construction andOperations, to promote efficient and timely emergency preparedness andresponse.


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3) Pinnacle must file evidence of its EWG status from FERC prior tocomm encing generation of electricity.

4) Tf Pinnacle seeks to transfer its certificate, Pinnacle is required pursuant to

Siting; Rule 7.1 to notify the Commission in writing of the identity of thetransferee and submit an affidavit from the transferee attesting to the

transferee’s willingness to abide by the terms of a siting certificate, as issued.This cond ition applies at anytime - not just in the operational stage.

5 ) Pinnacle will consult with representatives of Com mission Staff, the U.S. Fish& Wildlife Service, and the West Virginia Division of Natural Resources(collectively, the Technical Advisory Committee) on the scope, development,and implementation of bat and avian post-construction studies (Studies) tocomm ence within a reasonable time, and in any event no later than one yearfollowing the com mercial operation date of the Project:

The Studies will assess the Project’s impact on bat and avian life, thepotential for adaptive management strategies or other agreed-uponmeasures to mitigate those impacts, the expected cost of those strategiesover a range of mitigation effectiveness levels, and any other aspects ofwind turbine interactions with bats or avian life identified and agreedto between Pinnacle and the Technical Advisory Committee;

Pinnacle com mits to conduct up to three years of S tudies. To the extentthat Pinnacle and the Technical Advisory Com mittee determine, basedupon the results of the Studies undertaken during the first year of

comm ercial operation, the Project is not expected to have a significantimpact on bat or avian life, Pinnacle and the Technical AdvisoryCommittee will consider in good faith whether additional Studiesduring the second and third years of Project operations are necessaryand cost-justified, and whether the scope of any such S tudies duringthose years might reasonably be modified. Although it may choose todo so, Pinnacle will have no obligation to conduct any Studies beyondthe third year of commercial operation;

Pinnacle will file copies of each Study with the Commission andprovide copies to each member of the Technical Advisory Committeewithin thirty days of its completion.

6 ) If the Studies demonstrate that the Project causes significant levels of bat oravian mortality and that adaptive managem ent strategies or other agreed-uponmeasures are proven to be effective and can be econom ically implemented byPinnacle, Pinnacle shall implement those strategies or m easures.

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7 ) Pinnacle will minimize the visibility of the Project by only using projectlighting in the presence of the Project’s personnel and any other personsauthorized to be in the area except that Pinnacle may use Project lighting as

required by the Federal Aviation Administration and any applicable fire or

safety code, regulation, or accepted good utility practice.

8) In the unlikely event that the blasting associated with construction activitiesnegatively affects the groundwater aquifer on or around Green Mountain,Pinnacle will take immediate steps to resolve such negative effects.

9) Pinnacle must file copies of the rem aining interconnection studies and finalinterconnection agreements prior to comm encing operation.

10) Comm itments in Respect of Turbines in Proximity to Green M ountain Road.

a) In the micrositing process, Pinnacle will ensure that Turbine 17 is sited

and constructed not less than 418 .31 feet from the neare r edge of theright-of-way for Green Mountain Road, a distance representative of l xturbine height.

b) To account for the proximity of Turbines 16 and 17 to Green MountainRoad, Pinnacle will be required to develop and implem ent operationalconstraints on the operation of Turbines 16 and 17. During periods inwhich weather conditions at the Project site are favorable for icebuildup on the turbine blades o f Turbines 16 and 17, Pinnacle will shutdown and discontinue operations of Turbines 16 and 17, whethermanually, through autom ated mechanisms, or both.

IT IS FURTHER ORD ERED that the Memorandum Agreement dated May 28,2002,between U.S. Wind Force and the Trades Council is approved in relation to the P innacleProject. Th e Comm ission anticipates that all representations and comm itments made by theparties therein will be kept by the parties. Approva l of the Mem orandum Agreement by theCom mission does not mean the C omm ission is the proper forum to resolve any disputes thatmay arise under the A greement.

IT IS FUR THER ORD ERED that if Pinnacle receives any public funding for thisProject, Pinnacle shall advise the Comm ission and petition to reopen this proceeding within30 days so that the Comm ission can perform the analysis required by W . Va. Code 5 24-2-1 C(C).

IT IS FUR THER ORD ERED that upon entry hereof, this case shall be removed fromthe Com mission’s open docket.


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IT IS FURTHER ORDERED that the Executive Secretary of the Commission servea copy of this O rder upon all parties of record by United States First C lass Mail and uponComm ission S taff by hand delivery.

Sandra Squir

Executive Secretary

A True Copy, Teste:

CLWIsek090360cf.wpd

WV PSE Green Mountain Wind Siting Certificate

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Transcript of WV PSE Green Mountain Wind Siting Certificate