Ehlebracht v. Crowned Ridge Wind, LLC, 29615-a-MES

CourtSupreme Court of South Dakota
Writing for the CourtSALTER, Justice
Citation2022 S.D. 46
PartiesIN THE MATTER OF ADMINISTRATIVE APPEAL GARRY EHLEBRACHT, STEVEN GREBER, MARY GREBER, RICHARD RALL, AMY RALL, AND LARETTA KRANZ, Appellees, v. CROWNED RIDGE WIND, LLC, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Appellees. and AMBER KAY CHRISTENSON and ALLEN ROBISH, Appellants,
Docket Number29615-a-MES
Decision Date03 August 2022

2022 S.D. 46

IN THE MATTER OF ADMINISTRATIVE APPEAL GARRY EHLEBRACHT, STEVEN GREBER, MARY GREBER, RICHARD RALL, AMY RALL, AND LARETTA KRANZ, Appellees,

and

AMBER KAY CHRISTENSON and ALLEN ROBISH, Appellants,
v.

CROWNED RIDGE WIND, LLC, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Appellees.

No. 29615-a-MES

Supreme Court of South Dakota

August 3, 2022


CONSIDERED ON BRIEFS NOVEMBER 8, 2021

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE DAWN M. ELSHERE Judge

R. SHAWN TORNOW

Sioux Falls, South Dakota

MILES F. SCHUMACHER of

Lynn Jackson Shultz & Lebrun P.C.

Sioux Falls, South Dakota

Attorney for appellants.

BRIAN J. MURPHY of

NextEra Energy Resources, LLC

Juno Beach, Florida

Attorneys for appellee Crowned Ridge Wind, LLC.

AMANDA M. REISS

KRISTEN N. EDWARDS of

South Dakota Public Utilities Commission

Attorneys for appellee South Dakota Public Utilities Commission.

SALTER, Justice

[¶1.] Crowned Ridge Wind II, LLC (Crowned Ridge) applied to the South Dakota Public Utilities Commission (the PUC) seeking permission to construct a large wind energy farm in northeast South Dakota. Several individuals from Grant and Codington Counties who were affected by the potential wind farm intervened to oppose Crowned Ridge's application. The PUC conducted a contested case hearing and later issued a written decision approving the permit. The intervenors sought review in the circuit court. The court affirmed the PUC's decision and two of the intervenors now appeal to this Court. We affirm.

Facts and Procedural History

[¶2.] Crowned Ridge requested permission from the PUC to construct a wind farm comprised of 132 wind turbines capable of producing 300.6 megawatts of electricity in Codington, Grant, and Deuel Counties (the Project).[1] In addition to Crowned Ridge, other parties to the permit application process included PUC staff as well as "[a]ny person residing in the area where the facility is proposed to be sited, or any directly interested person" who applies for and obtains "party status." SDCL 49-41B-17(4). Amber Christenson and Allen Robish (the Intervenors), both of

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whom live in rural areas near the Project, timely sought and obtained party status to oppose the issuance of the permit.[2]

[¶3.] The PUC conducted a contested case hearing using the procedures set out in South Dakota's Administrative Procedure Act contained in SDCL chapter 1-26. See SDCL 49-41B-17.2. As part of the hearing, the PUC received evidence concerning the potential impacts of the Project on the environment and surrounding communities.

[¶4.] The hearing produced extensive testimony from seventeen witnesses, many of whom submitted "pre-filed" testimony and exhibits detailing the evidence they developed and reviewed concerning the potential impacts of the Project.[3] The Intervenors raised several points of contention with the permit application. As they relate to this appeal, the Intervenors questioned Crowned Ridge's compliance with a Conditional Use Permit (CUP) issued by Grant County, the future impact the Project would have on solid waste management facilities, and the potential adverse health effects the Project would have on local inhabitants.

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The Grant County CUP

[¶5.] Prior to the hearing, Crowned Ridge submitted pre-filed testimony of senior project manager Tyler Wilhelm who stated that Crowned Ridge was "responsible for obtaining all applicable federal, state, and local permits" required for construction of the Project. On behalf of Crowned Ridge, Wilhelm applied for a Wind Energy System CUP from the Grant County Board of Adjustment, which the Board approved. The CUP application stated that "[the Project] adheres to the . . . Wind Energy System requirements, as outlined in § 1211[,] Energy System (WES) Requirements of the Grant County Zoning Ordinance."

[¶6.] During Wilhelm's testimony at the contested case hearing, the Intervenors questioned him regarding a subsequent amendment to the Grant County zoning ordinances governing wind energy facilities. The zoning ordinance in effect at the time the Grant County Board of Adjustment issued the CUP to Crowned Ridge contained a provision limiting the maximum level of ambient noise produced by wind turbines to 50 dBA[4] "at the perimeter of the principal and accessory structures . . . ." However, eleven days after the issuance of the Crowned Ridge CUP, Grant County amended the ordinance, limiting the sound generated by

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wind turbines to "45 dBA . . . measured twenty-five (25) feet from the perimeter of the existing non-participating residences[5] . . . ."

[¶7.] According to Wilhelm, Crowned Ridge had, in fact, been instrumental in the amendment to the noise ordinance, explaining that "[w]e were part of that . . . process with the counties to get a new wind ordinance in place . . . ." Although Wilhelm acknowledged that the CUP was issued to Crowned Ridge prior to the adoption of the amended ordinance, he maintained that "[Crowned Ridge's] application that we filed is 100 percent consistent with what was adopted after our filing and our approval date."

[¶8.] Crowned Ridge also submitted pre-filed testimony from Jay Haley, a wind energy consultant, who was engaged by Crowned Ridge to conduct studies using computer-based modeling to estimate the level of noise the wind turbines would produce during operation. During Haley's testimony at the hearing, the Intervenors also questioned him about the amendment to the Grant County zoning ordinance. Haley testified that, in order to test compliance with the Grant County zoning ordinance in effect at the time the CUP was issued, he conducted sound studies on all principal and accessory structures located within the Project's footprint, which included over 170 receptor locations. According to his study, each of the principal and accessory structures fell within the fifty-decibel limit contained in the original Grant County ordinance.

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[¶9.] However, after the zoning ordinance was amended to require noise limits measured only at non-participating residences, Haley revised his study to include only those measurements. Haley testified that the final version of his study included four non-participating residences in Grant County. Based upon the results of his sound study, Haley opined that all four non-participating residences were forecasted to receive an ambient noise level below the forty-five-decibel limit imposed by the amended Grant County zoning ordinance.

Solid Waste Management Facilities

[¶10.] Crowned Ridge also submitted pre-filed testimony of Mark Thompson, the manager of wind engineering and construction for Crowned Ridge. Thompson's testimony concerned the details of the Project's construction, operation, maintenance, and eventual decommissioning. During the hearing, the Intervenors questioned Thompson about Crowned Ridge's plan for the disposal of what would potentially include millions of pounds of waste in the form of fiberglass turbine blades and other waste accumulated at the time of the Project's decommissioning. Thompson stated:

The plan as it stands right now is to cut these blades up into pieces for transport and dispose of them in landfills. Now this is usually a contracted process. And the landfills could either be local or off-site or out of state. Given that we're over 20 years away [from decommissioning], we think that there would be, you know, processes that are developed or put in place to maybe recycle some of these.
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[¶11.] Crowned Ridge also submitted pre-filed testimony from Christopher Ollson, PhD.[6] Dr. Ollson was engaged by Crowned Ridge to study the potential health implications associated with the Project's operation. At the evidentiary hearing, the Intervenors asked Dr. Ollson about the potential for carcinogens leaching into the environment in the event the turbine blades were disposed of in a local landfill. Although Dr. Ollson admitted he had not been engaged by Crowned Ridge to study the precise effects of blade disposal, he testified that "[the turbine blades] would have to be disposed of in a properly licensed landfill, and that landfill itself would be monitored. But there's nothing from the blades that would come out of the blades and enter into the environment and impact health." Ultimately, Dr. Ollson concluded that "there would be no undue risk from anybody living around the landfill [because] of blades being disposed of."

[¶12.] Darren Kearney, a utility analyst employed by the PUC staff, also testified about the turbine blade disposal process. Kearney testified that the PUC staff believed the topic of blade disposal in the future was best addressed by ensuring adherence to the decommissioning plan proposed by Crowned Ridge, verifying that Crowned Ridge was financially prepared to fund the decommissioning process, and confirming that proper disposal practices were observed. According to Kearney, the PUC staff "[does not] get into the details of where those wastes are going to go, what specific landfill they're going to be placed in. That will be decided 25 years from now when the blades are ready for removal." Pursuant to Crowned

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Ridge's decommissioning plan, which Kearney had reviewed, the "[m]aterials will be disposed where disposal is permitted and where there is capacity for the disposal . . . . All unsalvageable materials will be disposed of at authorized sites in accordance with applicable regulations."

Potential Adverse Health Effects

[¶13.] The Intervenors' final basis for opposing the permit revolved around the potential adverse health effects the Project might have on the local residents living near or within the Project boundary. The Intervenors' allegations on this point pervaded the entirety of the hearing, and testimony from several of the witnesses focused specifically upon the topics of health and...

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