{C48181:2 }

BEFORE THE OHIO POWER SITING BOARD

In the Matter of the Application of ) 6011 Greenwich Windpark, LLC for a ) Certificate to Construct a Wind-Powered ) Case No. 13-990-EL-BGN Electric Generation Facility in ) Huron County, Ohio. )

SECOND APPLICATION FOR REHEARING AND MEMORANDUM IN SUPPORT OF

OMEGA CROP CO., LLC, AN OWNER OF PROPERTY ADJACENT TO THE WIND FARM PROPERTY

____________________________________________________________

Samuel C. Randazzo (Reg. No. 0016386) (Counsel of Record) Scott E. Elisar (Reg. No. 0081877) MCNEES WALLACE & NURICK LLC 21 East State Street, 17TH Floor Columbus, OH 43215 Telephone: (614) 469-8000 Telecopier: (614) 469-4653 sam@mwncmh.com (willing to accept service by e-mail) selisar@mwncmh.com (willing to accept service by e-mail)

SEPTEMBER 24, 2015 ATTORNEYS FOR OMEGA CROP CO., LLC

{C48181:2 }

BEFORE THE OHIO POWER SITING BOARD

In the Matter of the Application of ) 6011 Greenwich Windpark, LLC for a ) Certificate to Construct a Wind-Powered ) Case No. 13-990-EL-BGN Electric Generation Facility in ) Huron County, Ohio. )

SECOND APPLICATION FOR REHEARING AND MEMORANDUM IN SUPPORT

OF OMEGA CROP CO., LLC, AN OWNER OF PROPERTY ADJACENT TO THE WIND FARM PROPERTY

Omega Crop Co., LLC (Omega) hereby respectfully requests the Ohio Power

Siting Board (Board) to grant rehearing for purposes of remedying the unreasonable

and unlawful aspects of the Opinion, Order, and Certificate (Order) as such

unreasonable and unlawful aspects were expanded in the Boards August 27, 2015

Entry on Rehearing (Entry).

The grounds on which Omega considers the Order and the Entry to be

unreasonable and unlawful are as follows:

In Addition to the Errors Previously Raised in Omegas Application for Rehearing, the August 27, 2015 Entry on Rehearing is Unlawful and Unreasonable Because It Leaves Open the Opportunity to Commence Construction if the Wind Farm Developer Secures Waivers from the Minimum Setback Requirements in Circumstances Where Such Waivers Are Precluded by Operation of Law and Because it Unlawfully Limits the Scope of Any Waivers that the Wind Farm Developer Would Have Had to Obtain to Evade the Minimum Setback Requirements. Accordingly, and for the additional reasons set forth in the attached

Memorandum in Support incorporated herein, Omega requests that the Board grant

{C48181:2 } 2

rehearing and vacate the Order, rescind the certificate, hold, as a matter of law, that

Greenwich cannot commence construction of the proposed wind farm, and provide such

other relief as may be warranted.

Respectfully submitted,

/s/ Samuel C. Randazzo Samuel C. Randazzo (Reg. No. 0016386) (Counsel of Record)

Scott E. Elisar (Reg. No. 0081877) MCNEES WALLACE & NURICK LLC 21 East State Street, 17TH Floor Columbus, OH 43215 Telephone: (614) 469-8000 Telecopier: (614) 469-4653 sam@mwncmh.com selisar@mwncmh.com ATTORNEYS FOR OMEGA CROP CO., LLC

{C48181:2 } 3

BEFORE THE OHIO POWER SITING BOARD

In the Matter of the Application of ) 6011 Greenwich Windpark, LLC for a ) Certificate to Construct a Wind-Powered ) Case No. 13-990-EL-BGN Electric Generation Facility in ) Huron County, Ohio. )

MEMORANDUM IN SUPPORT

The Boards August 27, 2015 Entry is unreasonable and unlawful because it

perpetuates the Boards unreasonable and unlawful disregard of its statutory obligations

regarding certification of an electric generating plant that consists of wind turbines and

associated facilities (wind farm) thereby violating Omegas rights.1

The purpose of this Second Application for Rehearing is not to repeat the

statement of errors (legal and other) that the Board may have discussed in its Entry.2

The purpose of this Second Application for Rehearing is to contest the Entrys

unsupported and unsupportable new assertion that it is possible that Greenwich

Windpark, LLC (Greenwich) may commence construction of its proposed wind farm

once it secures minimum setback waivers.

1 Ohio Adm.Code 4906.-17-01(B)(2) states (emphasis added):

Wind-powered electric generation facility" or wind-energy facility or facility means all the turbines, collection lines, any associated substations, and all other associated equipment.

R.C. 4906.13 states that economically significant wind farm means wind turbines and associated facilities with a single interconnection to the electrical grid and designed for, or capable of, operation at an aggregate capacity of five or more megawatts but less than fifty megawatts. R.C. 4906.201 states that [a]n electric generating plant that consists of wind turbines and associated facilities with a single interconnection to the electrical grid that is designed for, or capable of, operation at an aggregate capacity of fifty megawatts or more is subject to the minimum setback requirements established in rules adopted by the power siting board under division (B)(2) of section 4906.20 of the Revised Code. 2 If need be, these errors will be the subject of an appeal to the Ohio Supreme Court.

{C48181:2 } 4

While Omega agrees that the Board cannot unilaterally grant Greenwich a waiver

of the minimum setback requirements,3 the Boards Entry unreasonably and unlawfully

holds open the opportunity for Greenwich to secure such waivers in circumstances

where that opportunity is now precluded by operation of law.

The Entry states:

The Board notes that R.C. 4906.20(B)(2) provides that the setback shall apply in all cases except those in which all owners of property adjacent to the wind farm property waive application of the setback to that property. R.C. 4906.20 does not grant to the Board or the ALJ the authority to waive the minimum setback requirement. Further, Ohio Adm.Code 4906-1-03 states the Board or the ALJ may, for good cause shown, as supported by a motion and supporting memorandum, waive any requirement, standard, or rule set forth in Ohio Adm.Code Chapters 4906-1 to 4906-17 except where precluded by statute. Moreover, the Board notes that, consistent with the statute, the Stipulation, as approved by the Board, requires that, for any wind turbine that does not comply with the minimum setback requirements stated in the statute, Greenwich must secure an executed waiver of the minimum setback. If the necessary waivers are not obtained, Greenwich shall not build the turbine. Accordingly, the Board finds that Omega's arguments to the contrary are without merit and the request for rehearing on this issue should be denied.4

In its Application for Rehearing, Omega did assert that Greenwich did not request

a waiver of the minimum setback requirements contained in Ohio Adm.Code

4906-17-08.5 But this assertion was part of Omegas effort to direct the Boards

3 Entry at 14.

4 Entry at 14-15 (internal citation omitted).

5 Ohio Adm.Code 4906-17-08(C)(1)(c) states:

(i) The distance from a wind turbine base to the property line of the wind farm property

shall be at least one and one-tenth times the total height of the turbine structure as measured from its tower's base (excluding the subsurface foundation) to the tip of its highest blade.

(ii) The wind turbine shall be at least seven hundred fifty feet in horizontal distance

from the tip of the turbine's nearest blade at ninety degrees to the exterior of the nearest habitable residential structure, if any, located on adjacent property at the time of the certification application.

{C48181:2 } 5

attention to the larger and more fundamental problem with the Order which Omega

identified in its Application for Rehearing. Omegas reference to Ohio Adm.Code

4906-17-08 was a subset of Omegas larger demonstration that the Board was without

authority to issue the certificate to Greenwich based on the specific language in this

Boards rule as well as the commands of R.C. 4906.20.

More specifically, Ohio Adm.Code 4906-17-08(C)(1)(c)(iii) states (emphasis

added):

Minimum setbacks may be waived in the event that all owners of property adjacent to the turbine agree to such waiver, pursuant to rule 4906-1-03 of the Administrative Code. (emphasis added).

Omegas Application for Rehearing includes the following assertion:

The opportunity for Greenwich to obtain a waiver from the minimum setback requirements was foreclosed by Greenwichs failure to comply with Rules 4906-17-08 and 4906-1-03, O.A.C. Greenwich did not even attempt to comply with such rules.6

Omegas citation to Ohio Adm.Code 4906-17-08 was joined with the uncontested fact

that Greenwich made no setback waiver-related request, pursuant to rule 4906-1-03

of the Administrative Code, despite the fact that Ohio Adm.Code 4906-17-08 directs

that any setback-related waiver opportunity be perfected through Ohio Adm.Code

4906-1-03. 7 Omegas reference to Ohio Adm.Code 4906-1-03 was not, as suggested

by the Entry, due to some interpretational license taken by Omega. It was based on a

literal reading of the Boards rule, Ohio Adm.Code 4906-17-08.

At page 12, the Entry states:

Greenwich notes that Ohio Adm.Code 4906-17-08(C)(1)(c) contains the minimum setback requirements required by R.C. 4906.20(B), and the setback was applied in this case.

6 Omegas Application for Rehearing at 25 (September 23, 2014).

7 On April 19, 2013, Greenwich did file a Motion for Waivers pursuant to Ohio Adm.Code 4906-01-03. But

Greenwichs Motion for Waivers included no request pursuant to Ohio Adm.Code 4906-17-08(C)(1)(c)(iii). Greenwichs Motion for Waivers was granted by a June 17, 2013 Entry issued by the Administrative Law Judge.

{C48181:2 } 6

As already mentioned, the Entry states:

Moreover, the Board notes that, consistent with the statute [R.C. 4906.20], the Stipulation, as approved by the Board, requires that, for any wind turbine that does not comply with the minimum setback requirements stated in the statute, Greenwich must secure an executed waiver of the minimum setback. If the necessary waivers are not obtained, Greenwich shall not build the turbine.8 Despite the fact that Greenwich never acted pursuant to Ohio Adm.Code

4906-1-03 to secure the ability to evade the minimum setback requirements [whether

those setback requirements are contained in R.C. 4906.20 or in Ohio Adm.Code

4906-17-08(C)(1)(c)], the Entry appears to allow Greenwich to evade the minimum

setback requirements by securing executed waivers of the minimum setbacks.

Any waiver-related evasion of the minimum setback requirements in Ohio

Adm.Code 4906-17-08(C)(1)(c) is precluded by operation of law, however, because

Greenwich did not pursue an opportunity to perfect the opportunity to obtain setback

waivers pursuant to Ohio Adm.Code 4906-17-08(C)(1)(c)(iii).

Additionally, any waiver-related evasion of the minimum setback requirements in

R.C. 4906.20 is precluded by operation of law unless the setback waiver is obtained

pursuant to a procedure the board shall establish by rule .9 Also, the

setback waiver opportunity provided by R.C. 4906.20 is precluded entirely if the Board

finds, in a particular case, that a setback greater than the minimum is necessary. In this

particular case, the uncontested evidence shows that setbacks greater than the

minimum were necessary (as explained previously and again below).

R.C. 4906.201 became effective on September 29, 2013, well before the date on

which the Board issued the Order, several months prior to the date on which Greenwich

8 Entry at 15.

9 R.C. 4906.20(B)(2) replaced by R.C. 4906.20(B)(2)(c) (emphasis added, see discussion below).

{C48181:2 } 7

began to file its application,10 and several months before the Board Chairman notified

Greenwich that its application complied with applicable requirements (a necessary step

before Greenwich could proceed with its certificate application). As relevant here, R.C.

4906.201(A) states:

An electric generating plant that consists of wind turbines and associated facilities with a single interconnection to the electrical grid that is designed for, or capable of, operation at an aggregate capacity of fifty megawatts or more is subject to the minimum setback requirements established in rules adopted by the power siting board under division (B)(2) of section 4906.20 of the Revised Code.

Thus and with regard to Greenwich, there was and is a clear and specific statutory

requirement that the minimum setback requirements in R.C. 4906.20 control. At the

time R.C. 4906.201 was added to Ohio law, the statutory language defining

Greenwichs opportunity to evade the minimum setback requirements in

R.C. 4906.20(B)(2) was also part of R.C. 4906.20(B)(2). More specifically,

R.C. 4906.20(B)(2) stated (emphasis added):

The setback shall apply in all cases except in those in which all owners of property adjacent to the wind farm property waive application of the setback to that property pursuant to a procedure the board shall establish by rule and except in which, in a particular case, the board determines that a setback greater than the minimum is necessary.

While the minimum setback distances were increased in House Bill 59, 130th

General Assembly, and House Bill 483, 130th General Assembly, and the waiver-related

text of R.C. 4906.20 has been moved to a separate division [R.C. 4906.20(B)(2)(c)]

since the effective date of R.C. 4906.201, the Board was obligated, in this particular

case, to subject Greenwich to setbacks of no less than the minimum setback

requirements in R.C. 4906.20.

10

Based on the Boards case records, Greenwich began to file its application for a certificate on December 23, 2013 and the filing process continued through December 27, 2013. Entry at 1.

{C48181:2 } 8

In the Entry, the Board agrees that it has no power to grant a waiver from the

minimum setback requirements. Such a waiver cannot be secured by Greenwich

unless all owners of property adjacent to the [Greenwich] wind farm property waive

application of the setback to that property11 pursuant to a procedure the board shall

establish by rule.12

As Omega has previously observed and the Board has previously ignored, the

Board has never established, by rule, the procedure by which Greenwich might be able

to lawfully secure a waiver of the minimum setback requirements in R.C. 4906.20.

Indeed, the Board has never prescribed any of the reasonable regulations that it was

required to initially have in place, in accordance with the directive in R.C. 4906.20,

beginning one hundred twenty days after June 24, 2008.13

Because the Board has never satisfied its duty to prescribe reasonable

regulations and rules in accordance with R.C. 4960.20, there is no procedure

established by rule which Greenwich could have followed in the past or may now follow

in the future to obtain setback waivers from all owners of property adjacent to the

wind farm property .14

11

Entry at 14. 12

R. C. 4906.20(B)(2)(c) [previously R.C. 4906.20(B)(2)]. 13

R.C. 4906.20(B). 14

R.C. 4906.20(B)(2)(c) [previously R.C. 4906.20(B)(2)]. In cases where the Public Utilities Commission of Ohio (Commission) has received an application prior to the finalization of rules mandated by the General Assembly to define the means by which the Commission shall process and evaluate such an application, the Commission has indicated that the application is substantially inadequate and must be refiled and then, in lieu of requiring a refiling after the completion of the required rules, it suspended the commencement of the statutory timeframe for processing the application until completion of the required rules. In the Matter of the Application of FirstEnergy Corp. on Behalf of Ohio Edison Company, The Cleveland Electric Illuminating Company and The Toledo Edison Company for Approval of their Transition Plans and for Authorization to Collect Transition Revenues, Case Nos. 99-1212-EL-ETP, et al., Entry at 2 (October 14, 1999). In this case (and many others involving applications for certification of proposed wind farms), the Board accepted the certificate application and then granted certificates without first doing anything to finalize rules which the General Assembly mandated be used by the Board to process and

{C48181:2 } 9

The language in R.C. 4906.20(B)(2)(a) [previously R.C. 4906.20(B)(2)] and

R.C. 4906.201 compel the Board to require, in all cases, an economically significant

wind farm (a defined term which includes the wind turbines and associated facilities)15

or an electric generating plant that consists of wind turbines and associated facilities to

comply with nothing less than the minimum setback requirements.16 By the force of

R.C. 4906.20(B)(2)(c) [previously R.C. 4906.20(B)(2)] and the criteria in R.C. 4906.10,

the Board must issue a certificate subject to setbacks greater than the minimum setback

requirements where, as is the case here, the facts and circumstances show that the

minimum setback requirements are not sufficient or reasonable.17

evaluate applications for wind farm certificates. R.C. 4906.12 requires the Board to follow the procedures of the Commission.

15 See footnote 1 at 3.

16 At page 1 of the Joint Stipulation and Recommendation adopted by the Board in this proceeding, it

states that Greenwichs wind farm may include up to 25 wind turbines for a total generating capacity of up to 60 megawatts. Each turbine will have a nameplate capacity of 2.4 megawatts (MW), for a total generating capacity of 60 MW. Order at 4. 17

The safety manual provided by the manufacturer of Greenwichs turbines warned that even the minimum setback requirements were not adequate in case of fire. Greenwichs Exhibit R is the turbine safety manual. At page 53 of 134 and regarding fire danger, the manual states that (emphasis added):

FALLING TURBINE PARTS In case of a fire in the nacelle or on the rotor, parts may fall off the wind turbine. In case of a fire, nobody is permitted within a radius of 500 m [1640 feet] from the turbine.

Gerald Oney, one of Omegas owners, submitted a handwritten letter dated August 10, 2014 to the Board (filed in the public comments on August 21, 2014) in which he respectfully alerted the Board to the fire risks presented by the proposed wind farm, risks elevated by the wind farms closeness to grain fields, schools and residences. The Joint Stipulation and Recommendation adopted by the Board in this proceeding states that the certificate issued by the Board is subject to a number of conditions. The list of conditions identified in the Joint Stipulation and Recommendation includes (at page 8 of the Joint Stipulation and Recommendation) the following:

The Applicant [Greenwich] shall comply with the turbine manufacturers most current safety manual and shall maintain a copy of that safety manual in the O&M building of the facility.

There is nothing in the Joint Stipulation and Recommendation adopted by the Board in this proceeding that asserts that there is any information in the record to determine that the wind farm proposed by Greenwich satisfies any setback requirements, let alone the minimum setback requirements in R.C.

{C48181:2 } 10

But regardless of whether the minimum setback requirements or something

greater than the minimum control in the case of Greenwich, Greenwich had no (and

presently has no) opportunity to lawfully secure setback waivers from all or any owners

of property adjoining the Greenwich wind farm property. Because of the comprehensive

failure of the Board to follow the directives of the General Assembly, that opportunity is

precluded by operation of law.

As the Board knows, this is not a case where just one of many turbines fails to

meet the minimum setback requirements. As stated above and previously explained

without contest, 62% of the 25 proposed turbines violate the minimum setback

requirements.18

4906.20. Except in the case of gas and hazardous liquid pipelines which are referenced on page 8, the Joint Stipulation and Recommendation does not specifically identify any setbacks. 18

At pages 12 and 13 of the Order, the Board stated:

Consistent with R.C. 4906.20(B)(2) and Ohio Adm.Code 4906-17-08(C)(l)(c), as effective at the time the Greenwich application was filed, the minimum distance from a wind turbine to the exterior of the nearest habitable residential structure located on an adjacent property must be no less than 1,125 feet in horizontal distance from the tip of the turbine's blade at 90 degrees to the structure. The maximum rotor diameter of turbines under consideration for the facility is approximately 383 feet. Using the maximum blade lengths presented in the application, this minimum setback calculates to 1,312 feet from the turbine base to the exterior of the nearest habitable residential structure. One residential structure is currently under construction on property owned by a participating landowner. Turbine 9 is 1,117.5 feet from the residence under construction. The location of this residential structure was determined by the participating landowner after lease agreements were executed, and the landowner was aware of the proposed infrastructure associated with the project. Greenwich intends to execute a waiver of the minimum setback with this landowner. Staff recommends that, if a waiver is not executed, the turbine not be built. The minimum distance from a turbine's base to the property line of the wind farm facility must be at least 1.1 times the total height of the turbine as measured from its base to the tip of the blade at its highest point. Assuming a maximum turbine height of 490.5 feet as proposed in the application, this minimum property line setback equates to a distance of 539.55 feet. For 16 of the 25 proposed turbine locations, the minimum setback of 1.1 times the structure height to the nearest adjacent property boundary is penetrated. The adjacent landowners to each of these turbines are participating landowners in the project, who have leased parcels to Applicant. Greenwich has executed a waiver of the minimum property line setback with each of these landowners.

{C48181:2 } 11

Greenwich Exhibit O, Figure 2 Showing 906 Non-Participating Residential Structures within One-Mile of the Project Area

As explained herein, the Board has never adopted the rules that the General Assembly required the Board to adopt to establish the procedure by which any minimum setback waiver must be obtained. As also explained herein, the Boards failure to adopt these rules means that Greenwich could not and cannot secure a lawful waiver of any setback requirements.

{C48181:2 } 12

Greenwich Exhibit Q, Illustration of Visual Impact on Residence Nearest Turbine to Viewpoint is .8 Miles, with 7 Turbines Visible.

With regard to the above illustration, Greenwich asserted that the due to the proximity of the viewpoint to the turbines, the overall contrast they create is strong. Undaunted, Greenwich then said: However, the

presence of the turbines does not alter the agricultural character of the landscape.

Greenwichs Exhibit 2b (submitted at the hearing) identifies the adjoining

property owners as follows (emphasis added):

ADJACENT PROPERTY OWNERS

Owner Name(s) Mailing Address City State Zip

Ashland County Park District 1763 State Route 60 Ashland OH 44805

Baker, Julie A. 3360 Alpha Road Greenwich OH 44837

Barnett, Monroe 3622 State Route 13 Greenwich OH 44837

Barnett, Tammy 3622 State Route 13 Greenwich OH 44837

Blackburn, William A. & Carol L. 7144 Norwalk Road Medina OH 44256

Board of Trustees 31 Main Street Greenwich OH 44837

Bond, Leon & Deloris 2908 N. Main Street Mansfield OH 44903

Brown, Tony L. 3196 Base Line Road Shiloh OH 44878

Brubaker, Ray M. & Joy E. 295 Baseland Road Greenwich OH 44837

Brusacoram, Donald H. & Paulette A. 4360 Rome-Greenwich Road Greenwich OH 44837

{C48181:2 } 13

Burrer Family Land LLC 9908 Oberlin Road Elyria PJ 44035

Coburn, Basil R. & Anna J. 1413 East Plymouth Road Greenwich OH 44837

Copsey, Terry 4400 Rome-Greenwich Road Greenwich OH 44837

Cotterman, M. Scott & Judi L. Seidel 63 S. Kniffin Street Greenwich OH 44837

CROSSROADS VENTURES LLC 7316 Amstutz Road Shiloh OH 44878

Damron, Dawn E. 2860 US Highway 224 E Greenwich OH 44837

Duffield, Bettina 2823 State Route 13 Greenwich OH 44837

Eaton, Melvin L. & Lenora J. 3837 Townline Road 79 Greenwich OH 44837

Felver, Larry E. 2663 US Route 224 Greenwich OH 44837

Ferber, Edward K. & Shirley J. 3233 State Route 224 Greenwich OH 44837

Field, David B. & Joan MJ. 1210 Pineridge Road Marion OH 43302

Fox, Elsie F. 2501 US Route 224 Greenwich OH 44837

Fry, L. Dean 3987 Alpha Road Greenwich OH 44837

Glasser, David R. & Charlene A. 81 New Street Greenwich OH 44837

Goodrich, David P. 3461 Nineveh Road Greenwich OH 44837

Greenwich Twp. Trustees 3019 State Route 224 E Greenwich OH 44837

Gruss, Michael C. 18 Tracy lane Fermont OH 43420

Hale, Grover C. & Delphia 3240 State Route 13 Greenwich OH 44837

Hale, Melvin E. & Teresa D. 2417 State Route 224 Greenwich OH 44837

Hale, Seldon & Charlene M. 3074 Alpha Road Greenwich OH 44837

Hanshaw, Scott H. & Rosalie 3001 State Route 250 Greenwich OH 44837

Hartley, Phillip C. & Debra J. 3663 Townline Road 79 Greenwich OH 44837

Hicks, K. Ruben PO Box 65 New London OH 44851

Hicks, Marion M. & Julia J. 3221 East Plymouth Road Greenwich OH 44837

Hiltbrunner, George H. 921 Maplewood Willard OH 44890

Hoge, Patricia G. & Donald M. 2183 State Route 224 E Greenwich OH 44837

Holland, Dudley E. Jr. & Sandra K. 2921 State Route 250 Greenwich OH 44837

Hoover, Aaron N. & Marian W. 3470 Alpha Road Greenwich OH 44837

Hoover, Lawrence L. & Elva Jane 4363 Nineveh Road Greenwich OH 44837

Huffman, Gerald D. Jr. & Martha 2382 E. Plymouth Road Greenwich OH 44837

H unter, Carola C. & Gerald R. 175 Shady Lane #209

Norwalk OH 44857

Hunter, Gary D. & Janis P. 157l East Pl ymouth Road Greenwich OH 44837

H unter, Richard Clark & Bonnie Deane 4916 Greenwich-Milan Townline Greenwich OH 44837

In mon, Orville & Jerilyn M. 4575 Nineveh Road Greenwich OH 44837

Jaskiewicz, J. Marc 2896 State Route 224 Greenwich OH 44837

Jones, Gary 5210 I Stewart Road New London OH 44851

J une, R. Charles & K. Lacy Michelle 3031 Alpha Road Greenwich OH 44837

J u ne, Randy 2949 Aloha Road Greenwich OH 44837

{C48181:2 } 14

J une, Roger Scott & L May Eileen June 39 Orchard Street Greenwich OH 44837

Kelsey, Edward & Carol 4869 Nineveh Road Greenwich OH 44837

Keysor, Craig 3142 Plymouth East Road Greenwich OH 44837

Keysor, Larry A. 2994 East Plymouth Road Greenwich OH 44837

Keysor, Lena Fem & Philip Keysor 21 9 Crestwood Willard OH 44890

Kilbane, Marcia J. 229 Weaver Road N W Bainbridge

Island

WA 98110

Kilgore, Tinal & Le Eileen M. June 2949 Alpha Road Greenwich OH 44837

Kimble, Timothy J. & Kimberly A. 2504 Baseline Road Shiloh OH 44837

Krikke, Arthur C. Trustee & Sipkje Krikke 5001 Nineveh Road Greenwich OH 44837

Kurz, Frederick A. & Rebecca L. 4982 Rome-Greeenwich Road Greenwich OH 44837

Lay, E. Eileen 3267 US Route 224 Greenwich OH 44837

Leber, Walter H. Jr. & Faye A. 5151 Nineveh Road Greenwich OH 44837

Leber, Walter H. Sr. & Helen M. 784 Townline Road Willard OH 44890

Ledet, Kevin & Marcia 3205 Omega Road Greenwich OH 44837

Lee, Ronald L. & Bonita L. 3990 Nineveh Road Greenwich OH 44837

Leinbach, Amos H. & Erma Z. 1693 East Pl ymouth Road Greenwich OH 44837

Lucas, Doug 3580 Nineveh Road Greenwich OH 44837

Lugli Investments LLC 1309 County Road New London OH 44851

Madison, Brian & Lisa 3019 State Route 224 E Greenwich OH 44837

Martin, Harlan & Lois 2736 State Route 224 Greenwich OH 44837

Maurer, John 0. 1283 County Road 16 Willard OH 44851

McGahhey, Matthew C. 4863 Nineveh Road Greenwich OH 44837

McMillian, Robert D. & Rebecca Ann 2183 US Route 224 Greenwich OH 44837

Miller, Constance J. 2606 Townline Road 1 2 Willard OH 44890

Miller, Gary L. & Annette S. 4751 State Route 13 Greenwich OH 44837

Montgomery, Deboria L. 3429 Plymouth East Road Greenwich OH 44837

Moore, Stacy E. Trustee & Stacy Kick 3596 State Route 13 Greenwich OH 44837

Moss, George Timothy 3378 State Route 13 Greenwich OH 44837

M undell, Gerald R. Sr. & Jacqueline I. 3011 US Route 250 Greenwich OH 44837

Nead, Everett and Rita F. Kuhlman 3638 Old State Road Greenwich OH 44837

Newswanger, Loren B. & Al ma S. 3065 US Route 250 Greenwich OH 44837

Omega Crop Co LLC 3496 Rome Greenwich Road Greenwich OH 44837

Pennell, Barney & Sarah 3435 Alpha Road Greenwich OH 44837

Rand, John P. & Mary J. 4436 State Route 1 3 Greenwich OH 44837

Reed, E. Royce 0 & Lori 3025 State Route 250 Greenwich OH 44837

Risner, Glaster & Al va 2091 State Route 224 Greenwich OH 44837

Robinson, Kenneth W. & Michelle R. 3505 Nineveh Road Greenwich OH 44837

Robinson, Michael & Denise 1439 Plymouth East Road Greenwich OH 44837

Roscoe Farms LLC 30 Winding Creek Place Sylvania OH 43560

Rural Coonhunters Inc. 3221 Pl ymouth East Road Greenwich OH 44837

Schlarb, Billy Dean et al 1610 Base Line Road Greenwich OH 44837

Schlarb, Christopher R. & Terri 6850 Miller Road Brecksville OH 44141

Shepherd, Anita K. 4825 Nineveh Road Greenwich Oil 44837

{C48181:2 } 15

Shepherd, K. Choya 4578 Rome-Greenwich Road Greenwich OH 44837

Shoup, Kerstin B. 1 176 State Route 99 Monroeville OH 44847

Smith, Denise R. 1898 S Edwards Road North Fairfield OH 44855

Smith, Kathleen A. 4084 US Route 224 Greenwich OH 44837

Smith, Zachary Ryan PO Box 1 1 7 New Haven OH 44850

Somsak, Leslie B. & Loretta S. 2910 State Route 224 Greenwich OH 44837

STEINER, NEVIN L. 3065 US Route 224 Greenwich OH 44837

Stevens, Gaylord F. & Mary A. 1502 Base Line Road Greenwich OH 44837

Teats, Lois I. 1 637 East Plymouth Road Greenwich OH 44837

Tegeder, Herbert R. Jr. 2481 State Route 224 E Greenwich OH 44837

Thompson, Gayle (aka Gayle Macron) 3512 US Route 224 E Greenwich OH 44837

Tipple, Eric J & Veronica 3498 Nineveh Road Greenwich OH 44837

Ux II, Joh n W. 3736 State Route 1 3 Greenwich OH 44837

Vogel, John W. & Audrey G. 4902 Rome-Greenwich Road Greenwich OH 44837

Warrick, Randal W. & Christina M. 4511 State Route 13 Greenwich OH 44837

Waugh, Anthony Wayne 910 Decatur Street Sandusky OH 44870

Waugh, R. Clifford 4265 State Route 1 3 Greenwich OH 44837

Weatherbie, Wealtha June 2748 Plymouth East Road Greenwich OH 44837

Westmoreland Carl M. & Lucille 3385 Alpha Road Greenwich OH 44837

White, Arthur and Donna Jean 11 Maplewood Drive Greenwich OH 44837

White, Joshua and Melissa 2478 State Route 224 Greenwich OH 44837

White, Michael and Donna 2660 State Route 224 E Greenwich OH 44837

White, Timothy and Laura 2476 State Route 224 Greenwich OH 44837

Willett, David E. & Bobbi 4855 Nineveh Road Greenwich OH 44837

Williamson, Todd and Charity 6041 Georges Park Drive Canal

Winchester

OH 43110

Wi reman, Paul 3333 Pl ymouth East Road Greenwich OH 44837

Wireman, Viney Marie 4253 State Route 13 South Greenwich OH 44837

Wise, Nancy 2580 State Route 224 Greenwich OH 44837

Zi mmerman, David W. & Faith A. 7172 State Route 13 Greenwich OH 44837

Zimmerman, Emory O. & Ella A. 1190 State Route 603 W Shiloh OH 44878

Zimmerman, Irvin O. & Martha S. 414 Baseline Road Shiloh OH 44878

Based on this this list of owners of property adjacent to the Greenwich wind farm

property, it is also clear that the Boards disregard for its statutory obligations denies

many property owners, including Omega, the minimum statutory protections regarding

the location of wind farms and interferes with the exercise of inalienable rights these

property owners hold as documented by the Ohio Constitution. Such rights include

{C48181:2 } 16

acquiring, possessing and protecting property, as well as seeking and obtaining safety

and happiness.

The Boards Entry also unlawfully specifies the nature and scope of a setback

waiver that Greenwich could have lawfully obtained pursuant to a procedure the

board shall establish by rule 19 because the scope of the waiver described in the

Entry is focused on individual turbines rather than the wind farm property. In

accordance with R.C. 4906.13, R.C. 4906.201 and Ohio Adm.Code 4906-17-01(B)(2), a

wind farm includes more than turbines. It includes associated facilities, collection lines,

any associated substations, and all other associated equipment.20

As already quoted, the Entry states:

Moreover, the Board notes that, consistent with the statute [R. C. 4906.20], the Stipulation, as approved by the Board, requires that, for any wind turbine that does not comply with the minimum setback requirements stated in the statute, Greenwich must secure an executed waiver of the minimum setback. If the necessary waivers are not obtained, Greenwich shall not build the turbine.21

Any lawful waiver that Greenwich might have been able to obtain (had the Board

first adopted the required rules establishing the procedure by which any waiver must be

obtained) would have had to have been executed by all owners of property adjacent to

the wind farm property. Thus, the Entry is also unlawful and unreasonable because it

indicates that Greenwich may be able to evade the application of the minimum setback

requirements to the entire wind farm property by securing a waiver from just the owners

19

R.C. 4906.20(B)(2)(c) [previously R.C. 4906.20(B)(2)]. 20

The proposed Greenwich project will consist of up to 25 wind turbine generators, access roads, underground electrical interconnection, an interconnection substation, a laydown yard for construction staging, an operations and maintenance (O&M) facility, and two meteorological towers to be located in Greenwich Township, Huron County. Order at 4. The Greenwich wind project will include approximately 9.1 miles of access roads. The access roads would be up to 40 feet wide during construction. Id. at 5. 21

Entry at 15 (emphasis added).

{C48181:2 } 17

of property adjoining individual wind turbines that do not meet the minimum setback

requirements. The plain language in R.C. 4906.20(B)(2)(c) [previously

R.C. 4906.20(B)(2)] imposes the minimum setback requirements on Greenwich unless

and until it has secured a valid waiver from:

all owners of property adjacent to the wind farm property waive application of the setback to that property pursuant to a procedure the board shall establish by rule Even if Greenwichs opportunity to secure waivers from the minimum setback

requirements was not precluded by operation of law, the Entry unreasonably and

unlawfully limits the scope and nature of any setback waiver that Greenwich would have

had to obtain to evade the minimum setback requirements.

CONCLUSION

The Boards actions in this case regrettably imply a resilient preference for

operating outside its delegated authority and without regard to the duties imposed on

the Board by the General Assembly. In effect, the Board has unilaterally transformed

itself from a creature of statute into a creature that is untethered by the law.

But Omegas actions in this proceeding are not motivated by a desire to win a

legal point; they are the byproduct of the injury that the Board has inflicted and

continues to inflict on Omega and the many other people and businesses that live, work

and recreate within and around the footprint of Greenwichs proposed wind farm. While

some of these citizens might be able to escape by selling their property and moving

elsewhere, the Boards persistent indifference to the concerns powerfully expressed in

the hundreds of public comments opposing this wind farm is an unauthorized monument

to the risk that any potential buyer would undoubtedly factor into an offer price.

{C48181:2 } 18

Through circular reasoning that diverts attention from the Boards comprehensive

failure to comply with the requirements of R.C. 4906.20 (including the numerous

rulemaking requirements), the Entry evades responding to a squarely put question:

How can Greenwich commence construction of a proposed wind farm where the

certificate that must be obtained before such construction can commence has been

issued by the Board without complying with R.C. 4906.20? In doing so, the Board has

left a cloud hanging over the interests of the local citizens and property owners and their

constitutionally protected rights to acquire, possess and protect property, as well as

seeking and obtaining safety and happiness.

Accordingly, and for the additional reasons set forth herein, Omega requests that

the Board grant rehearing and vacate the Order, rescind the certificate, hold, as a

matter of law, that Greenwich cannot commence construction of the proposed wind

farm, and provide such other relief as may be warranted.

Respectfully submitted,

/s/ Samuel C. Randazzo

Samuel C. Randazzo (Counsel of Record) (Reg. No. 0016386)

Scott E. Elisar (Reg. No. 0081877) MCNEES WALLACE & NURICK LLC 21 East State Street, 17TH Floor Columbus, OH 43215 Telephone: (614) 469-8000 Telecopier: (614) 469-4653 sam@mwncmh.com selisar@mwncmh.com ATTORNEYS FOR OMEGA CROP CO., LLC

{C48181:2 }

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Second Application for

Rehearing and Memorandum in Support of Omega Crop Co., LLC, An Owner of

Property Adjacent to the Wind Farm Property has been served via electronic mail upon

the following parties of record this 24th day of September 2015.

/s/ Samuel C. Randazzo

Samuel C. Randazzo Sally Bloomfield Dylan Borchers Bricker & Eckler LLP 100 South Third Street Columbus OH 43215-4291 Phone: 614.227-2368 Fax: 614.227.2390 sbloomfield@bricker.com dborchers@bricker.com ATTORNEY FOR 6011 GREENWICH WINDPARK, LLC Chad A. Endsley (Reg. No. 0080648) Chief Legal Counsel Ohio Farm Bureau Federation 280 North High Street PO Box 182383 Columbus, OH 43218-2383 Phone: 614.246.8258 Fax: 614.246.8658 cendsley@ofbf.org ATTORNEY FOR OHIO FARM BUREAU FEDERATION John H. Jones Ryan P. ORourke Assistant Attorneys General Public Utilities Section Office of the Attorney General 180 East Broad Street, 6th Floor Columbus, OH 43215-3793 john.jones@puc.state.oh.us ryan.o'rourke@puc.state.oh.us

Sarah Anderson Assistant Attorney General Environmental Enforcement Section Office of the Attorney General 30 East Broad Street, 25th Floor Columbus, OH 43215 Sarah.anderson@ohioattorneygeneral.gov ATTORNEYS FOR THE STAFF OF THE OHIO POWER SITING BOARD Greta See Administrative Law Judge Ohio Power Siting Board 180 East Broad Street, 12th Floor Columbus, OH 43215 Greta.See@puc.state.oh.us ADMINISTRATIVE LAW JUDGE

This foregoing document was electronically filed with the Public Utilities

Commission of Ohio Docketing Information System on

9/24/2015 8:25:34 AM

in

Case No(s). 13-0990-EL-BGN

Summary: App for Rehearing Second Application for Rehearing of Omega Crop Co., LLCelectronically filed by Mr. Samuel C. Randazzo on behalf of Omega Crop Co., LLC