Because the Small Renewable Wind Energy Project Permit By Rule (PBR) has inadequate and/or ineffective internal controls, it should be abolished. Internal controls were non-existent or not followed with the Rocky Forge Wind Energy Project in Botetourt County. DEQ leadership favored this project before the Botetourt County Board of Supervisors even evaluated or voted on it from a local standpoint, likely swaying the county's decision. In addition, the PBR has no means to independently verify or validate input submitted by wind project advocates using an unbiased subject matter expert, allowing invalid, inaccurate, or incomplete data to be easily submitted to obtain DEQ approval of wind energy projects having questionable benefit and likely environmental harm.

The previous commenter Mr. Claunch is correct. This type of administrative procedure is easily manipulated to avoid accountability. 

Unless otherwise noted, the prefix “9 VAC15-40” should be assumed to precede each subsection number (e.g., 9 VAC 15-40-10, 9 VAC 15-40-20).

COMMENT 1:

REGULATORY SECTION: 30. Application A. Requirements 5. Certification regarding project’s maximum generation capacity AND 6. attainment of national ambient air quality standards

CHANGE: These two items are currently based only on the theoretical maximum generation capacity based on the proposed number and make and model of wind turbines. This is insufficient to provide a realistic analysis of the actual impact of the project on attaining any standards. I propose the following:

• Since wind speed is the basis for the actual production of electricity, and since wind speed is highly variable from hour to hour and day to day, and time of the year, an analysis of wind data collected from instrumentation located at the proposed site must be conducted
• The wind data must cover a period of at least one year
• The wind data and the results of the analysis must be included in the application so that an independent verification of the analysis can be performed
• The analysis of power generation must take into account the wind data and operational down time due to turbine maintenance and mitigation schedules

REASON: The applicant for Rocky Forge Wind claimed that enough electricity will be generated for up to 20,000 homes. An analysis of wind data from another site in the region showed that the number was only about 8,000 homes.  The applicant refused to provide wind data from the Rocky Forge site to environmental groups, or even a local county government, claiming it was proprietary. Thus it was impossible for anyone or any state agency to verify claims of energy generation. The wind is not proprietary, and refusal to make the data available raises serious questions about the integrity of the claims made by the applicant.

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COMMENT 2:

REGULATORY SECTION: 30. Application A. Requirements 2. furnishes to the department a certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances

CHANGE: This regulation does not address the situation where the proposed project is located close to governmental boundaries (i.e., county, city, etc.). Currently only the governing body where the project is physically located needs to provide approval. If a project is close to the boundary there can easily be significant impacts (view shed, noise, shadow flicker, erosion, etc.) that cross governmental boundaries. I propose the following:

• If a project has impacts across governmental boundaries then all impacted governing bodies need to furnish certification that the project complies with all applicable land use and other applicable ordinances.
• An alternative would be that if a project has impacts across governmental boundaries the project no longer can be considered to be a “small” renewable energy project and must go through the standard permit process with the State Corporation Commission.

REASON: The location of Rocky Forge Wind in Botetourt County is right on the border with Rockbridge County and Allegheny Counties, and visual, sonic, blasting, run-off, and other impacts are as significant in those counties as in Botetourt County. But, only Botetourt County needed to grant a permit, and the other counties had no authority to allow or prevent the project. This is an extremely poor situation that needs to be remedied.

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COMMENT 3:

REGULATORY SECTION: 30. Application A. Requirements 2. furnishes to the department a certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances

CHANGE: The Model Wind Ordinance available from DEQ (https://www.deq.virginia.gov/Programs/RenewableEnergy/ModelOrdinances.aspx) was written in 2012. Since that time there has been a lot more research on the impacts of, and experience with, industrial wind.  I propose the following:

• Establish a panel of experts, consisting of both advocates and opponents of industrial wind to review the Model Wind Ordinance.
• Obtain input from locations around the U.S on problems that have been encountered where industrial wind projects have been built, and use that information to come up with appropriate regulatory language that sets requirements for noise (audible & infrasound), setback (for shadow flicker, ice throw, etc.), and other aspects.

REASON: Many items in the model ordinance are based on input from the wind industry and its advocates and do not reflect current research and real world experiences with the impacts of noise, shadow flicker, ice throw, bird and bat mortality, etc. Many counties, particularly in rural locations where wind projects are proposed, do not have the expertise or financial resources to research and write an effective ordinance. Thus the energy companies are able to provide the language that tilts the ordinance in their favor to the disadvantage of county government and residents.

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COMMENT 4:

REGULATORY SECTION: 50. Determination of Likely Significant Adverse Impact

CHANGE: I propose the following:

• Add new paragraph C, “Property Values” and
  • provide a methodology for determining the zone of impact for properties that will be adversely impacted by noise and visual degradation
  • require the applicant to establish an escrow fund for those properties within the zone of impact so that the owner will be able to receive fair market value for the property if it is sold

REASON: Industrial wind advocates claim property values are not affected citing studies to support that position. There are also many studies that show that they are. To insure that property owners are not financially harmed, it is only reasonable to provide a guarantee.

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COMMENT 5:

REGULATORY SECTION: 30. Application A. Requirements 1. Notice of Intent

CHANGE: I propose the following addition:

• Prohibit the applicant from signing any Non-Disclosure Agreements with property owners prior to providing notification to the local government authorities of the applicant’s intent to pursue approval for an industrial wind project

REASON: NDA’s are commonly used by industrial wind companies to gain a “foothold” in an area before any announcement is made to the public, or any notice given to local government, about the intentions to build an industrial wind facility.  Citizens need to know what money is being spent by the applicant to gain acceptance and silence dissent.

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COMMENT 6:

REGULATORY SECTION: 30. Application A. Requirements 13. Public review and comment,  AND  90. Public participation.  A. Public Notice

CHANGE: Announcement by applicant of public comment period needs to be more widely publicized than just in the “Public Notices” section of newspaper classifieds. I propose the following:

• the applicant must place the notice in the main section of the paper and be of a size at least 3 columns wide and 5 inches high, with a title using a large font clearly stating “Notice of Public Comment Period”
• the applicant be required to set up a website for the proposed project, and that the announcement of the comment period be clearly visible on the home page
• The applicant be required to provide electronic versions of all application documents available on the website in addition to hard copy versions
• The applicant be required to allow subscriptions so that notices will be emailed
• the DEQ shall set up a page containing links to of all PBR applicants’ websites

REASON: The notification of the public comment period for Rocky Forge Wind was “buried” in the “Public Notices” section of the newspaper classifieds among notices of bankruptcies, etc. Even though I was on the lookout for the notice, I did not see the notice until another person pointed out where it was. Other notices of proposed construction, rate changes, etc., by electric utilities are printed in the main section of the paper and are much more visible. The requirement for a website and email notifications is that in this day and age, many people do not get their information from traditional newspapers and get their information via the internet.

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COMMENT 7:

REGULATORY SECTION: 50. Determination of Likely Significant Adverse Impact A. Wildlife

CHANGE: It is stunning that the PBR regulation requires the determination of likely significant impact on wildlife and historic resources, but not on people! This is an oversight that needs to be remedied. Aside from that, there is no mention of the adverse impact that noise can have on wildlife. Many studies have shown that wildlife is adversely impacted by noise, and currently there is nothing in the regulation that requires an analysis of that impact. Require actual noise studies, not computer models. I propose the following:

• The applicant will use sound generation equipment producing the noise levels (i.e., dB) and frequencies (audible and infrasound) that the proposed wind turbine make and model generates
• The sound generation equipment shall be placed at the proposed locations of the wind turbines
• Sound monitoring devices shall be placed at various locations and distances from the sound generation equipment
• The sound generators will be elevated to the height of the nacelle of the proposed turbine make and model
• The sound generation tests will be performed in various temperature, humidity, and wind conditions.
• Public notification of sound generation testing must be sent to all landowners within two miles of the proposed site
• The results of the noise study must be included in the PBR

REASON: The noise study performed for Rocky Forge Wind used a computer simulation that was developed for flat land, and that was explicitly stated to be “not intended for use in mountainous regions”.  Anyone who has lived in mountainous areas knows how sound can carry and bounce around. I know from personal experience that I can easily hear a chain saw or power mower from a mile away, and my hearing is that of a 64 year old man. In addition, no infrasound study or analysis was conducted. Due to the nature of infrasound, it carries farther than audible sound, and its health impacts to people and wildlife can be even more severe.

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COMMENT 8:

REGULATORY SECTION: 90. Public participation

CHANGE: It is important that the PBR process be as transparent as possible. I propose the following:

• Require the DEQ (and its agencies) and governmental agencies such as boards of supervisors, planning commissions, etc. to make publicly available all communications between them and the applicant without having to have FOIAs submitted

REASON: In the Rocky Forge Wind application, a small group with limited resources that wanted to make sure that the applicant and county government or state agencies had made no secret arrangements or promises was forced to submit FOIA requests. In one case the FOIA request resulted in exorbitant fees and legal action.

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COMMENT 9:

REGULATORY SECTION: 30. Application A. Requirements 13. Public review and comment

CHANGE: The individuals who submit comments as part of the public comment period do not have any opportunity to question the validity of the applicant’s responses. I propose the following:

• Persons who submit responses need to be given the opportunity to challenge an applicant’s response
• The DEQ would provide the forum for the resolution of the challenge

REASON: Many comments were submitted by the public as part of the Rocky Forge Wind PBR application, and many responses to those comments by Rocky Forge Wind were “non-responsive” or dismissive of the information presented by the commenter.

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COMMENT 10:

REGULATORY SECTION: General

CHANGE: The Virginia Constitution states "it shall be the Commonwealth's policy to protect its atmosphere, lands and waters from pollution, impairment, or destruction, for the benefit, enjoyment and general welfare of the people of the commonwealth." Article XI, Section 1. The PBR regulation needs to be reviewed to determine if it is consistent with the constitutional requirements. I suggest the following:

• A review board be established to specifically review the PBR with respect to 1) omissions of requirements to insure constitutionality (for example there is nothing about the general welfare of the people), or 2) requirements that conflict with the Virginia Constitution

REASON: The PBR was written to expressly encourage development of industrial wind. As seen in its first application, there are many issues with it, some of which raise concerns about its constitutionality.

All adjacent counties and city governmental administrations must receive formal written notification of a PBR Notice of Intent (Code of Virginia Article 5 Small Renewable Energy Projects 10.1-1197.6 B1) submitted in an adjoining county within a designated time period from the date of Notice of Intent for any wind turbine project..

All counties and governmental jurisdictions impacted by analyses as required by PBR Guidance DEQ Section II Methodology 9VAC 15-40 including view shed and scenic resources must be included and required in writing to approve or disapprove of the project as part of the regulatory process.

Wind turbine projects severly impact across county and city governmental boundaries.

PBR regulations must prohibit and disallow applications for wind turbine projects in areas where the results of 9VAC 15-40 Wind PBR Guidance DEQ Section II Methodology anaylses confirm threatened or endangered species are located in the proposed project area.   No mitigation permissable.

My comments are the result of research and experience in opposing the Rocky Forge project on North Mountain. In that process, I found a number of areas in the regulations that can be amended to address the problems of constructing wind turbines in karst-riddled mountains. Since it is inappropriate for such large machines to be constructed on fragile terrain, the best solution would be to protect such areas. The other troublesome concern I have is the lack of protection for adjoining county lands. 

While there are several other additions needed for the PBR to be effective,  I will limit my suggestions to site location and the lack of protection for all natural resources.

9 VAC15-40 -10: Definitions

ADD –

>“Geological features” means the underlying landforms of valleys, ridges, beaches, etc.

> “Impact zone” means all geographic areas, regardless of political boundaries and including geological and water features, that will be affected by construction, operation & maintenance, vibrations, blasting for the purpose of siting wind turbines.

> Under “Small wind energy project” ....... Add (iii) project not to exceed 50 acres

>“Water features” means streams, wetlands, springs.

9 VAC15-40-20: Authority and Applicability

CONSIDER–

> Repealing parts that allow “small wind” projects to be developed in mountainous karst areas and that would require more than 50 acres of land. 

9 VAC15-40-30: Application for permit by rule for wind energy projects

Application A -2.

ADD –

> Projects that lie on the border of another political entity (county) will need the applications and the approval of both local governments.

9VAC15 -40-30: Application for permit by rule for wind energy projects

Application A-7

ADD –

> Water features within the impact zone need to be identified and protected by a permit   that includes stormwater and erosion & sediment regulations approved by DEQ. The plan also needs to indicate how dependable oversight and enforcement will be provided.

> Geological features that will be destroyed during the construction need to be identified.  Blasting required to level and eliminate ridgelines needs to be identified by site and an engineer’s design submitted for approval.

The omissions of these obvious“natural resources” is puzzling. Other than the Natural Heritage program which is mainly concerned with plants and DGIF’s website with probable fish & wildlife, a  complete analysis of the natural resources is not required in the current regulation.

[A one-minute You Tube site shows construction for a 500 foot turbine, requiring on flat land excavation 9.8 feet deep and 100.7 feet diameter. https://www.youtube.com/watch?v=Q2o5P-6zm6Y.  For comparison, Rocky Forge: 25 turbines, 550 feet high, on steep slopes]

9VAC15 -40-30: Application for permit by rule for wind energy projects

Application A - 8

ADD –

> to the “significant adverse impacts ....” add “geologic features, water features ....”

The significant destruction of these natural resources needs to be recognized and included in any honest appraisal of the construction of turbines.

9VAC15-40 -40: Analysis of the beneficial and adverse impacts on natural resources

ADD to C – 

> Geological features and water features: identify these features within the impact zone  and provide analysis of the expected impact.

9VAC15 - 40 -50:  Determination of likely significant adverse impacts.

ADD – 

> C.  The department shall find that significant adverse impacts to geologic features and water features are likely to occur whenever a proposed project diminishes any aspect of the natural resource's integrity.

(Reference the geologic and water features that are identified on an updated site plan 9VAC15-40-70)

9VAC15-40-60: Mitigation plans

ADD –

> D.  Mitigation measures for significant adverse impacts to geologic features to include the loss of the ridge top of a mountain which cannot be replaced. (Essentially turbine construction amounts to mountaintop removal)

> E.   Mitigation measures for significant adverse impacts to water features to include the cost of cleaning up the streams, springs, and wetlands.

9VAC15-40 -70: Site plan and context map requirements

in application A  ...

ADD –

> in (i) change to “the boundaries of the impact zone”

> in (ii) Add size of base of turbine and materials used for each turbine site.

in application B ...

Change – 

> “.... the area encompassed by the site and within five miles of the site boundary” .... to  “ .... the area encompassed by the impact zone.”

Thank you for the opportunity to comment on the PBR for wind turbines. 

Sandra Stuart

Virginians for Responsible Energy

Wind energy like solar is very dilute. To catgorize wind or solar by installed capacity is misrepresentative. Because wind energy is very dilute, large amount of property is required to develop very little unreliable energy.For instance, Apex Clean Energy confirmed to me that they typically clear cut  5 acres around one 3MW 500' tall industrial wind turbine. Using that information, a 150 MW facility that is allowed under PRB would clearcut 450 acres. Does anyone at DEQ think a project requiring 450 acres clear cut is small? Compound that with the difference between 'installed' capacity and 'actual' energy produced and the concept is more outragious. PJM, the owner of the grid in this area, rates wind energy at 13% of installed capacity. In other words, they expect to receive 13% of the installed capacity. So, for the 150MW facility that uses 450 acres of labd, one could expect 19.5 MW of energy. The only thing small is is the very little amount of energy produced for  significant distruption to the environment. Change the definition of "Small wind energy" to 150 MW and not to require more than 50 acres of land. 

In the world of power generation, the amounts of electricty a fossil fule plant can produce is well known. If a certain amount of natural gas is pumped into a boiler, a known amount of steam will be produces and therefore the energy produced is known. No surprises. Conventional energy production cannot be compared to renewable energy in the same way.Installed capacity with conventional energy production closely matches that actual energy production; not so with wind energy. Most engineers familar with wind energy will agree that the most one will get out of a wind project is less that 20% of the installed capacity, more like 10% to 13%, depending on location. As part of the certification required by the application, and in the spirit of transparency, an third party engineer's certification should be required showing the actual energy that can be expected based on at least one year of actaul measured wind data at the site, with back up wind data. 

There is growing resistence to industrial wind energy in this country annd abroad. Large industrial wind turbines inflict damage to wildlife and negatively affect humans living in proximity to industrial wind projects. These effects do not respect jurisdictional lines. If these effects, cross the jurisdictional lines of the intenty providing the certification, then the PBR should not apply. Effects are noise, viewshed, shadow flicker, or infra-sound (typically travels 4 times audable sound).

The purpose of this requirement is to give those affected by a wind project a voice. 

The PBR Wind Turbine application process must allow protection for adjoining counties of any proposed turbine project.  The intense negative impacts of industrial turbines cross jurisdictional lines and all adjoining counties must have a voice in the approval process.  The case of the proposed Rocky Forge project by Apex is a toxic example of proposed turbines destroying the scenic economy of multiple counties.

The PBR application process and regulations must require that wind energy generation claims be verified by a third party and be made available to state agencies and the public.    The use of tax payer subsidies must require transparency in the PBR process.

Small wind generating turbines should not be allowed if they are over 100' tall. The energy required for backup generators and the amount of electicity to get a wind turbine spinning from a stalled position should be revealed to the public and who pays for that energy should also be revealed to the public.