Ohio Power Siting Board finds New Market Solar violated setback requirements

The Ohio Power Siting Board last week ruled that the New Market Solar projects are in violation of minimum setback requirements and ordered them to bring the solar panels into compliance, according to an opinion filed June 20.

As previously reported, an administrative hearing was held in November regarding the alleged noncompliance with the two projects (New Market Solar I and New Market II) in Clay and Whiteoak townships that have been partially operational (24 of the 100 megawatts) since March 2022.

The OPSB ruled June 20 that New Market is “in violation of the conditions of the certificate” for their project and in violation of the Ohio Revised Code, which requires ‘No person shall construct, operate, or maintain a major utility facility or economically significant wind farm other than in compliance with the certificate the person has obtained.’”

For violation of the ORC, the opinion says that the OPSB “may order an appropriate remedy.” The opinion says they are requesting “that New Market be directed to come into full compliance with the certificate. According to [OPSB] Staff, this would entail moving or removing panels such that the entirety of the Facility is [set back] at least 100 feet from public roads.”

According to the opinion, New Market Solar and EVS, Inc., which is the engineering firm used for the project, “initially contend that no additional changes are warranted” and that “putting the panels into compliance is more complex than it may appear and would be unnecessarily burdensome and expensive.”

An “alternative approach” offered by New Market — “where some, but not all, of the non-compliant panels are relocated” — will still “cost New Market in excess of $4 million,” the OPSB opinion says.

The OPSB said that they would “adopt a version of” New Market’s $4 million proposal “that requires those panels within 100 feet of Stringtown Road, Edwards Road and W. New Market Road to be brought into compliance, consistent with the established setbacks.” However, OPSB said that “certain panels” — including “those along Hollowtown Road” and those “confirmed by New Market to be within 100 feet of neighboring property lines” will “not be required to be relocated.

“We determine a mitigated approach is appropriate, as this limits waste and unnecessary environmental impact,” the OPSB wrote.

In addition to the relocation of panels, the OPSB ordered New Market to:

• Install “agricultural-style fencing and planted vegetation”where it “has not” done so already, for the entire facility, while “[confirming] with Staff that such fencing and vegetative screening is appropriate and sufficient to serve as effective screening, particularly for nearby residences;”

• Ensure the fence line for relocated panels is “consistent with the setbacks and shall be at least 100 feet from the roads;” and

• “Update its Road Use and Maintenance Agreement,” or RUMA, for the panel relocations “with the appropriate government entities as necessary.”

According to the OPSB’s June 20 opinion, construction began in June 2021, with one of the conditions being that “the Facility was to be set back at least 100 feet from all property boundaries.” New Market developers “notified [OPSB] Staff on Sept. 12, 2022 that the Facility was constructed utilizing minimum 45-foot setbacks rather than 100-foot setbacks,” and the Staff investigated and found “38 of the 39 setbacks measured … were not in compliance.”

As a result, in February 2023, the Board ordered the aforementioned hearing to be scheduled, which took place Nov. 14. The transcript of the hearing is 259 pages, according to the projects’ case docket, while briefs were also filed “by Staff, New Market and [EVS, Inc.],” according to the OPSB opinion.

The OPSB opinion says that in the October 2022 OPSB compliance report, the 100-foot setbacks were not listed “in the Board’s Opinion, Order and Certificate issuing the certificate or the Stipulation,” but they were discussed “in the application, in data requests between Staff and the developer, and in the Staff Report.”

“We note that no party disputes Staff’s measurements demonstrating that, at 38 separate points, Facility equipment is within 100 feet of the centerline of public roads within the project,” the opinion says. “Parties differ, however, as to whether 100-foot setbacks were established by the Board in issuing the certificate and if those setbacks were ever modified with approval.”

According to the opinion, OPSB staff argued that the setbacks “were clearly established and authorized by the Board,” while New Market Solar “asserts that Board rules and the conditions in the certificate permit post-certificate layout changes subject to Staff approval. New Market contends Staff permitted the developer to adopt 45-foot setbacks and that New Market relied on that approval to go forward with construction.”

New Market argued that they “provided Staff with civil engineering drawings of the project layout on March 19, March 22, and June 28, 2021, that specifically noted 45-foot setbacks” in “multiple” instances, and that they were granted OPSB approved “to go forward with construction.”

EVS agreed that the 45-foot setbacks were approved by the Power Siting Board staff. The OPSB staff “denies that any modifications to the project layout were approved” and said staff members themselves do not have “authority to modify the setbacks.”   

EVS then responded that the OPSB’s basis “to establish the minimum setback is ambiguous and contradictory” and may have been included in the application in “error.

“According to EVS, Staff should have identified that the setbacks were established at 45 feet, as Staff’s witness was able to easily locate the multiple locations where 45-foot setbacks were specified on the drawings submitted to Staff,” the opinion says. “EVS contends Staff has an obligation to confirm that drawings are in compliance with the certificate before giving a developer approval to go forward with construction.”

EVS also argued that “Highland County Conveyance Standards require 45-foot setbacks for commercial developments and that the Board established 50-foot standards for other, similarly situated solar projects,” while the OPSB “Opinion, Order, and Certificate and the Combined Stipulations” for the New Market project “are silent as to setbacks.

“According to EVS, it does not make sense that Highland County would agree to setbacks that do not correlate with the county’s own standards,” according to the OPSB opinion. “EVS asserts it developed the project layout based on the Highland County Conveyance Standards.”

The Ohio Power Siting Board found “it is clear everyone involved assumed these were standard submissions demonstrating compliance with the original certificate” and said they “find arguments as to whether Staff could have or should have identified the incorrect setbacks to be largely irrelevant in our determination of whether a violation of the certificate occurred.”

According to the opinion, the OPSB determined that it is “obvious the Facility was constructed in violation of the certificate” and that “the setbacks were established at 100 feet.”  
 
“EVS’s contention that the application’s reference to 100-foot setbacks is ambiguous or a mistake is spurious and without merit,” the OPSB wrote. “The established minimum setback was expressed in New Market’s initial application … confirmed via data request … and reiterated in the Staff Report.

“This does not at all contradict the Highland County Conveyance Standards, which does not speak specifically to solar facilities and only establishes minimum standards. The Board is also not persuaded that Staff authorized a modification to the previously approved setbacks. The Board is not even persuaded that there was a request to modify the setbacks.”

The OPSB pointed out that New Market also “understood” the 100-foot setback requirement and “self-reported the discrepancy.”

“Dan Bowar (Mr. Bowar), the project manager for EVS, the engineering firm retained by the contractor, McCarthy, testified that EVS was unaware of the 100-foot setback limitation when it developed the project layout for New Market,” the opinion says. “Thus, between the testimonies of Mr. Otarov and Mr. Bowar, at no point was there ever a purposeful effort to adjust the setbacks from 100 feet to 45 feet. Rather, it is evident that at some point there was an internal miscommunication or misunderstanding from the certificate holder as to what the setbacks were supposed to be.”

The complete opinion and order can be read at: https://dis.puc.state.oh.us/ViewImage.aspx?CMID=A1001001A24F20B40502I00….

Publisher's note: A free press is critical to having well-informed voters and citizens. While some news organizations opt for paid websites or costly paywalls, The Highland County Press has maintained a free newspaper and website for the last 25 years for our community. If you would like to contribute to this service, it would be greatly appreciated. Donations may be made to: The Highland County Press, P.O. Box 849, Hillsboro, Ohio 45133. Please include "for website" on the memo line.