State utility regulators said this week they won’t order Green Mountain Power to stop blasting on the Lowell wind site.
The Vermont Public Service Board Monday reacted to complaints that on Oct. 28, a piece of blasting mat and bits of rock flew outside the wind site and onto property owned by retired Lowell farmers Don and Shirley Nelson.
An attorney for the neighboring towns of Albany and Craftsbury had asked the board for an emergency stay of the blasting in preparation for 21 industrial-grade wind turbines on the Lowell ridgeline. Two protesters near the construction zone signed statements that they saw the “fly-rock” and chunk of blast mat land on Nelson property.
The Vermont Department of Public Service, representing Vermont electricity consumers, told the board that the incident meant that GMP contractors have violated the certificate of public good on that day specifically. The incident occurred before GMP had a court order with enough teeth to enforce moving protesters out of the 1,000-foot blast safety zone that extends to the Nelson property.
The department told the board that the contractors weren’t following state blasting rules by allowing anyone, including protesters, to be close to the blasting zone.
The Public Service Board disagreed in a ruling Monday.
Board members James Volz, David Coen and John Burke rejected the towns’ request to stop the blasting, saying they did not have standing to seek an injunction about public safety issues in the town of Lowell.
“Additionally, neither the towns nor the department have demonstrated non-compliance by GMP with the certificate of public good or any applicable laws and regulations,” the board wrote.
“Therefore, we decline to direct GMP to cease blasting at the project site or to impose any other sanctions for the Oct. 28 blast,” the board ruled.
However, the board members did note that they were prepared to revisit the issue if “there are future instances of flyrock being propelled onto the Nelsons’ property in a manner that indicates a potential lack of compliance by GMP.”
In response to the ruling, GMP spokeswoman Dorothy Schnure said Thursday the utility is satisfied that state regulators realize “that our blasting is being done according to the permit.”
The board discussed why blast mats are to be used by GMP contractors to limit fly-rock.
On Oct. 28, GMP told the board that there were 16 separate blast mats used to cover 21 separate blast holes at the wind construction site.
“It appears that the only reason a small number of fragments of flyrock may have landed on the Nelsons’ property, a point contested by GMP, is that one of the blast mats apparently malfunctioned and a small piece was blown free,” the board noted.
The National Fire Protection Association’s standards for blasting, required by the Vermont Division of Fire Safety, say that flyrock “shall not be cast from the blast site ‘in an uncontrolled manner that could result in personal injury or property damage,'” the board wrote.
“The whole point behind the use of blast mats and blast designs is to ensure that the release of flyrock beyond the 50-foot blast site happens in a controlled manner with safeguards to prevent personal injury or property damage. It is not a prohibition on flyrock traveling more than 50 feet,” the board wrote.
The board noted that the department had confused the blast zone within 50 feet of the actual place where blasting materials were set to detonate and the much wider, 1,000-foot safety zone.
The board said there are restrictions on access within the narrow blast site but the wider safety zone is only a precaution for personal safety.
The board said that the national blasting standards also say that flyrock should not be propelled onto neighboring property that has not been contracted by the blasting operator or for which the property owner has not granted a written waiver.
GMP does not have a contract with or a waiver from the Nelsons.
GMP’s blasting contractor has argued in Orleans Superior Court that there was no need to be concerned about flyrock going onto the steep, forested property owned by the Nelsons, where there are no buildings and no one lives.
Until the protesters set up camp, there were few people except the occasional hiker or hunter on the mountainside owned by the Nelsons and the only property that could be damaged by flyrock would be trees, GMP argued in court.
The board said that blasting “is an ultra-hazardous activity and it can never be guaranteed with absolute certainty that blast debris will never be cast beyond the blast area onto neighboring properties regardless of the number and quality of precautions taken, which is why strict liability applies if personal injury or property damage results when such an event occurs.”