Members of the Carroll County, Arkansas, Quorum Court
Re: Proposed Ordinances/January 16, 2024, QC Meeting
Dear Members:
We have been provided copies of two proposed ordinances to be considered by the Carroll County Quorum Court at its regular monthly meeting on January 16,2024. The first ordinance has been proposed by JP John Howerton (“Howerton Ordinance”). The second has been proposed by JP Jack Deaton (“Deaton Ordinance”).
We oppose both ordinances. Neither proposed ordinance addresses important considerations regarding the health, safety, and welfare of the citizens of Carroll County and their property rights. Both proposed ordinances are poorly drafted
Neither proposed ordinance addresses the following:
FIRE HAZARDS— Industrial wind turbines are fire hazards! If the fire spreads to the turbine blades the environmental harm can be catastrophic—spreading burning fiberglass shards well beyond the property on which the turbine is located. In one instance burning fiberglass shards traveled up to a mile away from the tower, polluting a non-participating landowner’s hay fields and preventing him from being able to self-feed his livestock. The wind farm involved litigated FOR YEARS trying to avoid liability! Our local fire departments do not have the equipment to put out a fire at that height. But the Quorum Court can require that each turbine have a fire suppression system.
WATER POLLUTION— The construction of these industrial wind turbines will involve clear cutting and foundation building on ridgelines of karst terrain, potentially polluting and damaging the sensitive water aquifers that feed our wells and spring fed ponds. Over sixty citizens have sent letters to the Quorum Court demanding that the County act, as required by the Carroll County Comprehensive Land Use and Management Plan, to protect them from these hazards. After the harm has been done, we don’t have the financial resources to sue Scout for the damage it has done—it would take years and thousands of dollars! We can’t protect ourselves—but you can! We understand that Scout is now offering those who have signed leases an additional $30,000 to amend their leases to release Scout from any liability for harm to their water caused by Scout. Scout knows the construction of these wind turbines could cause permanent damage to the water aquifers.
PROPERTY VALUES/DAMAGE TO COUNTY’S TAX BASE-– All of us have property rights—not just the landowners who have signed agreements with Scout. We all want to protect the value of our most valuable assets—our homes and our land. Industrial wind turbines decrease the value of surrounding properties by up to 40%. As surrounding property values decline, what will be the impact on the County’s tax base? The County collects a tremendous amount of tax revenues from tourism, also. What will be the impact on the County’s tourism dollars when these ugly industrial wind turbines mar the scenic beauty of some of the highest ridges in Carroll County?
DECOMMISSIONING—Any ordinance the Quorum Court adopts should not only require the wind turbine company to post a decommissioning bond with the County as a bond obligee, but should require that: (1) the amount of the bond be determined by an independent agency; (2) the amount of the bond be revised periodically (at least the Howerton Ordinance attempts to do these); (3) the bond be in place before construction begins; (4) the bonding company be adequately rated; and (5) the decommissioning follow an independently-approved decommissioning plan.
Both proposed Ordinances propose inadequate setback requirements, and the setback requirements they propose don’t even make sense.
Setbacks Based on Manufacturers’ Safety Manuals
We don’t know which wind turbine manufacturer Scout plans to use to build the wind turbines in Carroll County but the safety manuals for two of the largest turbine manufacturers provide valuable information regarding what they consider to be appropriate safe distances from these industrial turbines.
Vestas is one of the leading wind turbine manufacturers, with approximately 70% market share worldwide. Based on its prominence in the world market, the Vestas Safety Manual is a credible source of safety information. Nordex is another well-known manufacturer of wind turbines. Its Safety manual likewise is considered a credible source of information on the subject of safety.
On page 3 of the Vestas Safety Regulations for Operators and Technicians Manual, Point #2—Stay and Traffic by the Turbine, Vestas personnel are instructed, under normal operating conditions, to stay away from a turbine by 400 meters (1312 feet) unless it is necessary. Under abnormal operating conditions, Vestas expands this distance to address the safety of its employees. The Vestas Confidential Health and Safety Instruction Manual for a wind farm in Massachusetts directs its employees, when faced with a free spinning “runaway” turbine, to run “upwind,” and to stay away from the turbine at least 500 meters (1640 feet).
The Nordex Safety Manual addresses safety in case of a fire in the nacelle (rotor) of the wind turbine because parts may fall off the spinning turbine. In case of fire nobody is permitted within 500 meters (1640 feet) of the turbine.
The wind turbines at the Vestas wind farm in Massachusetts were only 400 feet high, so Vestas considered a “safe” distance under abnormal conditions at that wind farm to be more than four times the height of each turbine. Scout proposes to build wind turbines in Carroll County up to 698 feet high. Based on the guidelines set by Vestas, a “safe” distance from those turbines would be 2792 feet.
These are the recommendations that the turbine manufacturers themselves propose for their own, trained employees. What are adequate safe distances for you and me—ordinary citizens—and our families—who are not trained to work on the turbines and who are not getting paid to risk ourselves to work on these industrial wind turbines?
The Setbacks of Both Ordinances Don’t Make Sense
Both the Howerton and Deaton Ordinances propose different setbacks depending on the distance from a property line or a residence. The Howerton Ordinance proposes a 1300-foot setback for “currently occupied non-participating residences” and 730 feet from “non-participating parcels.” The Deaton Ordinance proposes a setback of 1.5 times the height of the turbine from a non-participating property line and 2 times the height of the turbine from any residential or commercial structure of any non-participating landowner’s property.
It is wrong and probably illegal to have different setbacks depending on whether it is from a non-participating property line or a residence. All landowners should have the right to do with their land what they choose as long as it doesn’t harm or impede a neighboring landowner. A setback for safety reasons, regardless of its distance, must be maintained.
Any ordinance that allows a wind turbine to be built near a non-participant’s property line eliminates that property owner from safely using that land. It creates an easement over the neighboring, non-participating property that eliminates the owner from any further developments. This amounts to an uncompensated taking of private property rights. Using the Howerton Ordinance as an example (although the same applies to the Deaton Ordinance), assume I own land that has a property line within 730 feet of a turbine? How can I build a house next to that property line once the Quorum Court has apparently decided that, in order to be safe, my house has to be at least 1300 feet from the turbine and 570 feet (1300 ft. – 730 ft. = 570 ft.) from my property line? If the Quorum Court adopts either ordinance, it will effectively prevent me from being able to do what I want on my own land.
The setback for “currently occupied residence” is less than the distance the Vestas Safety Manual recommends for its employees under normal operating conditions, and well short of the distance both Vestas and Nordex recommend for their employees under abnormal operating conditions.
There are other problems with the proposed setbacks. For instance, the Howerton Ordinance applies to “currently occupied non-participating residences.” At what time does the residence need to be “currently occupied”? When the ordinance is passed? When the turbine is built? What if I have a house that has been built, but no one is living in it at the applicable time?
What about safe/setback distances from public roads? This isn’t even addressed by either proposed ordinance.
Other Problems with the Proposed Ordinances
We think some of the problems with the proposed ordinances might have been avoided if they had been properly reviewed by attorneys.
For example, the Howerton Ordinance, in Article 1.1, states “The Developer agrees….” This is not a contract between the County and “the Developer.” “Developer” is not defined. Is it Scout
Based on the language used, we think the members of the Quorum Court and the general public should be told the role Scout did play, if any, in developing each of these proposed ordinances.
The Howerton Ordinance proposes that the County be named “an additional party” to a proposed “removal bond.” What does that mean? Normally, a person who is to be the beneficiary of a bond is named as the “obligee” of the bond, not “an additional party.” If it was the intent to name the County as an obligee, then the ordinance should state that. The removal bond does not reference any independently engineered decommissioning plan. It does not establish the qualifications of the bonding company. It does not appear to be binding on any later owner of the wind farm. (Scout has a history of selling each of its wind farm within five years of construction). It doesn’t even require that the wind turbines be “removed” (whatever that means) by any certain time or impose any penalty for any failure to remove them, or even a failure to post the bond (or letter of credit, etc.).
The Deaton Ordinance has similar deficiencies.
At Article 1, it requires all towers “shall be designed and built to incorporate best practices.” What does that mean? Normally, building codes adopt or incorporate recognized industry or state-mandated codes, not some vague term, like “best practices.” The Deaton Ordinance imposes its penalties for noncompliance on “any person…having …supervision or control over the tower….” Is that the Owner, the operator (who could be different than the Owner), the landowner on whose property the tower sits, or the maintenance man who is in charge of testing and repairing the tower, or all of them?
We are certain that each of you may have already found unacceptable deficiencies in each of these proposed ordinances and want you to be aware of the problems we have determined after our brief review of them.
We appreciate that a lot of effort has gone into developing these ordinances, and we certainly appreciate that the members of the Quorum Court recognize the need for an ordinance controlling the construction of industrial wind turbines in Carroll County. Nonetheless, we oppose the passage of either of these ordinances.
Concerned Citizens of Carroll County, Arkansas
Angela Usrey