The Morrow County Court stunned a crowd Wednesday when it refused to enforce an Oregon law that limits the noise a wind project can make at nearby homes.
The court voted 2-1 that, although noise from the Willow Creek wind project exceeds state standards at a few homes, the violations did not warrant enforcement action.
At one home, for example, the noise level exceeded limits 10 percent of the time the turbines were running, according to the project’s own acoustical expert.
County Judge Terry Tallman voted against the motion, only because he was against the vote itself.
“We don’t have the funds to force compliance,” he said. “The state of Oregon says it doesn’t have to do it, because it doesn’t have the funds. Why are we being forced to live by a higher standard than the state of Oregon?”
Tallman was referring to the Oregon Department of Environmental Quality, which wrote and, for a time, enforced the state’s industrial noise control regulations. The laws still are on the books, but the DEQ terminated its noise control program in 1991 because of budget cuts. That left enforcement up to local agencies.
Morrow County adopted the state’s noise control rules and asks wind projects to comply as part of the site certification process.
Wind projects less than 105 megawatts may seek a conditional use permit from the county; larger projects must go through the Oregon Energy Facility Siting Council.
Morrow County granted the 48-turbine Willow Creek project, north of Ione, a permit in 2005.
However, after neighbors of the project began to complain about noise, county officials began to realize Oregon’s noise law is not exactly crystal clear. And a parade of lawyers and acoustical experts, for the neighbors and Invenergy, the Chicago-based company that developed the Willow Creek project, further muddied the waters.
The law says a wind project may not increase noise at adjacent homes by more than 10 decibels. If a wind developer does not conduct a study to determine the ambient noise at a site, it may use an assumed background of 26 decibels, for a total of 36 decibels.
Willow Creek’s neighbors believe a wind developer must choose, before it builds, whether to conduct an ambient noise study or go with the assumed level of 26 decibels. If it goes with 26 decibels, it cannot break the 36-decibel limit by even one decibel.
Invenergy claims there is no “bright line” noise standard, that it can generate 36 decibels at nearby homes or 10 decibels above the ambient, whichever is higher, up to 50 decibels.
At a planning commission meeting last year, Invenergy’s acoustical expert, Michael Theriault of Portland, Maine, admitted the project violates the standard even by its own, looser definition.
But because the violations are so minimal, by only a few decibels a small percentage of the time, he said, they qualify as “infrequent and unusual events” and therefore exempt from the law.
An acoustical expert for the project’s neighbors came to different conclusions.
Kerrie Standlee, who has helped complete site certificates for the Oregon Department of Energy, said the wind farm consistently broke the noise rule at precisely the time when Theriault decided not to use the study data, when wind speeds exceeded 9 meters per second.
Standlee said the wind project broke the noise rule by more decibels, and more frequently, than Invenergy claimed.
In its decision Wednesday, as in previous deliberations, however, the Morrow County Court disregarded Standlee’s testimony and relied on Invenergy’s conclusions.
“There might be some violations,” Commissioner Ken Grieb said, “but we don’t think they’re significant enough to take action.”
The ruling is a reversal of a previous, January decision, in which the court agreed the project violates the wind rule at Dan Williams’ house. His home is the one at which the violation appears to occur most frequently.
That decision modified a Morrow County Planning Commission decision, which found Invenergy out of compliance at four nearby homes.
All parties appealed the county court’s decision to the Oregon Land Use Board of Appeals. The board returned the decision to the county, asking the court to clarify its decision.
“I’m flabbergasted,” said Jim McCandlish, a lawyer for three of the neighbors, after the vote. He said his clients’ constitutional right to due process was being denied. He said they intend to appeal the decision to the board of appeals.
“The county court has an obligation to protect the health and welfare of its citizens,” he said.
Irene Gilbert, an anti-wind activist from Union County, called the vote ridiculous.
“I think it sets a really bad precedent when a group of county commissioners say, in spite of the data that says there is a violation, we are choosing not to act on it.”
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