Supreme Court upholds PUC decision to grant wind farm permit in northeastern South Dakota

Kerry Kulkarni
Watertown Public Opinion

The South Dakota Supreme Court upheld decisions by the South Dakota Public Utilities Commission to allow expert testimony and issue a permit for the development of a wind farm in Codington, Grand and Deuel counties.

The Supreme Court opinions, filed Aug. 3, upheld the permit issued for the Crowned Ridge Wind development, a 132-turbine wind farm hoping to produce 300.6 megawatts of electricity and decisions to allow testimony from two experts.

The Crowned Ridge Wind development was originally pitched as a two-phase project, with the first phase originally expected to be completed in 2020. 

But, a group of landowners in Grant and Codington Counties who sought to intervene in the development of Crowned Ridge Wind in Northeastern South Dakota appealed the PUC decision to issue a permit for the development. That appeal went to the circuit court, and, when it was upheld, was appealed to the supreme court. A second appeal to the Supreme Court also challenged two expert witnesses in the case.

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Landowners who brought the case forward are Amber Christenson, Allen Robish, Kristi Mogen and Patrick Lynch.

The case brought to the Supreme Court addressed health, safety and welfare issues and the intervening landowners questioned if Crowned Ridge complied with a Grant County conditional use permit.

Disposal of Turbine Blades questioned

The intervenors questioned Crowned Ridge’s plan for the proper disposal of millions of pounds of waste from the fiberglass turbine blades and other rubbish produced when the turbines are decommissioned.

Mark Thompson, the wind engineering and construction manager for Crowned Ridge, provided testimony in circuit court that the decommissioned blades are cut into smaller pieces for transport and disposal to a contracted landfill. Thompson also stated that the decommissioning of the turbines is more than 20 years away and that other recycling opportunities could arise by that time.

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Carcinogens from buried turbine blades leaching into the environment were also questioned. Christopher Ollson, an environmental health scientist, worked for Crowned Ridge to study the impacts of turbine blade disposal. He testified that wind blades must be disposed at a properly licensed landfill, which would be monitored. According to his testimony, nothing from the blades would enter the environment and impact health.

Both the circuit court and the Supreme Court upheld the issuance of the PUC permit.

Noise level compliance concerns also raised

Only 11 days after Grant County issued a conditional use permit to Crowned Ridge, the Grant County zoning ordinance for noise level limit produced by wind farms changed from 50 decibels or below to 45.

The intervenors questioned if the public utilities commission had erred when it found that Crowned Ridge had complied with both versions of the Grant County ordinance.

Crowned Ridge hired Jay Haley, a wind energy consultant, to study the level of noise the turbines would produce during operation. There are 170 locations close enough to the tower to be impacted by the noise level off the wind farm, and Haley testified that he had studied all of them. Each structure studied fell within the 50-decibel or lower limit per the original ordinance.

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The amended wind energy facilities ordinance requires noise levels to be measured at locations near the wind farm project that were “non-participating residences” or those places that have not entered into a lease or easement agreement with the developer. Four sites within the project’s footprint are non-participating. Haley found these residences were below the 45-decibel limit.

The PUC determined Crowned Ridge complied with Grant County's conditional use permit requirements, and the Supreme Court agreed.

Interveners argue infrasound and health concerns

The intervenors’ final opposition to the permit was the potential for adverse health effects on residents living near or within the wind farm’s boundary, specifically to other types of sounds that may not have been tested. This included infrasound, or sound waves that have frequencies below the limit of human hearing.

Haley testified that no such studies were completed, but testimony was provided by David Hessler, an acoustic engineer who has worked with the PUC. 

“The preponderance of the current evidence, research and the mainstream expert opinion indicates that there is no link between the extremely low levels of low-frequency sound generated by wind turbines and any adverse health outcomes,” Hessler said in his testimony.

Both the circuit court and the Supreme Court upheld the issuance of the conditional use permit.

Second appeal challenged witness testimony 

A second appeal to the Supreme Court, filed by intervenors Amber Christenson and Allen Robish, challenged expert witnesses Jay Haley and Sarah Sappington. 

Sappington provided oral testimony to support written findings submitted by a colleague.

Crowned Ridge had filed a written testimony to the court from Kimberly Wells regarding her findings on the wind farm's environmental impact, including the effects on natural resources and cultural implications. However, during the evidentiary hearing in circuit court, Wells did not attend and testify in person. In her place, Crowned Ridge called Sappington to testify about the project's environmental impacts.

Sappington worked with Wells on the environmental planning for the wind farm. She also assisted in drafting the testimony that Wells submitted.

Despite the intervenors' claim that Sappington's testimony was hearsay, the Supreme Court determined that she provided her own testimony and was subjected to cross-examination. The fact that the testimony was similar to the pre-filed testimony submitted by Wells simply reflects the collaborative nature of their work, according to the Supreme Court ruling.

Interveners argued Haley misrepresented his profession

Haley's witness testimony was also presented in circuit court at the evidentiary hearing. The intervenors objected, arguing that Haley had misrepresented himself as a professional engineer. The intervenors also stated that Haley used this designation after his name on correspondences and documents he filed for the sound and shadow flicker studies.

Haley has a bachelor's degree in mechanical engineering and was a licensed professional engineer in North Dakota and Minnesota for nearly 30 years. According to the ruling, he allowed his license to lapse and knew he could no longer stamp engineering drawings without the license. However, he incorrectly believed that he could continue to use the professional engineering designation, which he later learned was wrong.

In his testimony, Haley explained to the court that being a professional engineer is not a title that's needed to conduct sound and shadow flicker studies. He also said he was a partner in a wind energy consulting firm and had performed many studies of this magnitude over the years and trained hundreds of others to perform these studies. Haley also testified that he belongs to a committee that works toward developing international standards for evaluating the proposed locations for wind farms.

The intervenors claimed that the PUC had given Haley "a pass" by allowing him to testify. But, the PUC also questioned Haley at length to test the strength of his opinions and their bearings on Crowned Ridge's application.

The Supreme Court determined the PUC acted within its discretion when it denied the intervenors' challenges to Haley's testimony.