DERBY – An attorney with state utility regulators says a local group of residents cannot intervene in hearings over the Derby Line Wind Project because they missed the deadline by a month.
But John Cotter with the Vermont Public Service Board said he could change his mind if they can adequately explain why they were so late in filing their request.
In an order posted online Friday, Cotter said a group of residents called Holland and Derby Citizens for Responsible Energy (HDCRE) raised enough unique concerns to possibly earn the right to intervene in the proceedings but only if they can show why they couldn’t have filed their request sooner.
Encore Redevelopment wants to erect two industrial-sized wind turbines on two Derby farms between the village of Derby Line on the U.S.-Canadian border and the town of Holland.
Encore has opposed the participation of HDCRE and of an individual Derby Line resident, Mary Jenne, asking why they couldn’t have filed their request by the March 7 deadline. Jenne is the mother of wind critic Karen Jenne, a Derby select woman and clerk of the village of Derby Line.
Cotter has made it clear several times that there must be good reasons for being late. Cotter did not address expected late requests by Canadian towns and property owners to participate.
If Cotter lets HDCRE and Jenne into the process, they will have to scramble to catch up. State agencies and towns which have intervenor status have already begun to quiz Encore experts about the project.
The residents would have to jump mid-stream into what are highly technical and legal proceedings, Cotter said.
A May deadline looms for scheduling technical hearings over issues that remain in dispute between Encore and the parties involved. Encore wants certificates of public good this spring to erect the turbines before the end of the year.
Encore is working on contracts with the towns and agreements with the Department of Public Service and the Agency of Natural Resources.
HDCRE, led by Mitch Wonson, Keith Gray and Vicky Farrand-Lewis, are attempting to get an attorney, Cotter said.
Cotter gave Jenne and HDCRE until Thursday to explain why they were late, and gave Encore five days to respond.
Cotter was blunt about his denial in his order issued Thursday, but offered hope to the group of residents.
“I am denying both Ms. Jenne’s and HDCRE’s motions to intervene due their late-filed nature and the absence of explanation as to why they could not have filed the motions by the March 7 deadline for filing intervention motions,” Cotter wrote.
Neither Jenne nor HDCRE “even attempts” to explain why they were unaware or unable to file their motions in a timely fashion, he said.
“However this denial is without prejudice and provides the movants an opportunity to supplement their motions and provide an appropriate explanation,” he added.
Cotter wrote that Jenne and HDCRE have a chance to explain, and therefore he would discuss the basis on which he might accept a late application to intervene.
“I am unpersuaded by Encore’s arguments on the issues of health impacts from noise emissions, impacts to property values, shadow flicker, ice throw and aesthetics,” Cotter wrote.
“Additionally Ms. Jenne has raised a specific interest with respect to the potential for damage to her property from blasting,” Cotter wrote.
However, Cotter wrote that Jenne didn’t have a unique concern about how blasting would affect the International Water Company’s reservoir, saying that other parties were addressing that.
Cotter brushed off Encore’s protestations.
“It is reasonable to conclude that the movants will potentially experience impacts related to these issues from the construction and operation of the proposed projects,” he wrote.
He also said that citizens’ groups often bring a perspective “sufficiently distinct” from the state agencies and towns involved, which have broader interests.
And Cotter pointed out that Encore officials said they are seeking agreement with the towns, village and state that may not address individual concerns.
The PSB may consider public comment to identify issues that a project raises. But those comments can’t be used as a basis for a finding of fact in in rendering its decision, Cotter wrote.
Cotter denied the residents’ effort to challenge the decommissioning plan and how the project fits under the state’s small renewable energy source program called SPEED.
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