The Public Service Board will receive filings about Georgia Mountain Community Wind’s alleged blasting violations this month, according to a schedule agreed to both parties and accepted by the PSB on October 4.
This is the first step in addressing the wind project’s violations of its certificate of public good, which the PSB granted in June 2010.
Project Representative Martha Staskus already admitted the company blasted on a state holiday as the permit prohibited and that it failed to notify neighbors of blasting on two occasions.
In court filings, neighbors allege GMCW blasted on September 11 and 12, after the company informed the PSB at a September 5 status conference that blasting was complete. The PSB previously issued a stop-blasting order on August 24 after neighbors alleged flyrock landed on their property. A fire marshal’s report corroborated these findings.
A day after the Department of Public Service filed the proposed violations schedule, nine intervenors filed a motion asking the PSB to award them attorney fees.
In the September 20 motion, the neighbors – Jane, Tina and Dan FitzGerald; George and Ken Wimble, Virginia and Ken Mongeon and Scott and Melodie McLane – say GMCW forced them into this legal process by violating its permit.
Through their attorney, Daniel Richardson, the neighbors say GMCW started this by issuing a restraining order against the FitzGeralds after their presence in a blasting zone prevented Georgia Wind from detonating explosives on August 16, Bennington Battle Day, a state holiday.
Georgia Wind filed a lawsuit and then dropped it; Staskus said then GMCW never intended to take the neighbors to court.
But the parties still accrued legal fees in retaining Richardson, who filed motions to drop the TRO and lawsuit. The TRO effectively allowed the FitzGeralds to be arrested on their own property.
“The intervenors’ expenses are a direct result of Georgia Wind’s violations of the CPG,” Richardson wrote.
Georgia Wind filed back last Thursday, arguing the intervenors didn’t meet standards developed in case law to request attorney fees. The “American Rule” only provides such relief in “very limited circumstances,” the filing reads, and the landowners didn’t meet the criteria, it says.
The project attorneys, Brian Dunkiel and Andrew Raubvogel, go on to say the intervenors present their allegations as facts, but only the PSB can determine if the CPG was violated.
They say the landowners aren’t required to participate in violation hearings; the Department of Public Service represents ratepayers’ and the public’s interest already, the filing says.
The lawyers are referring to the department’s investigation into flyrock. DPS hired Chris Boyd, assistant state fire marshal, earlier this month to investigate the FitzGeralds’ claims that large pieces of rock were thrown onto their property that borders the project.
Boyd visited September 14 and found that west of the crushing site, 350 feet across the property line, there were rocks that didn’t roll onto the property, as Georgia Wind suggested. He also noted impacts in several trees between 45 and 50 feet high. Other areas the FitzGeralds pointed out could not be confirmed as flyrock, Boyd wrote.
Boyd’s report goes on to say that 55 of 56 blasting reports showed that blast mats, used to contain flyrock, were not used, despite recognized standards requiring them.
“The use of blast mats is … treated as an option by blasters on this site,” Boyd wrote.
Staskus wouldn’t comment on the flyrock but said she’s concerned about Boyd’s comments on blast mats, saying it’s common practice for contractors – notably those working for the state – to not use them. She admitted Georgia Wind did not use them in every blast.
An affidavit filed by William Lovely, project manager and employee of general contractor Cianbro, in August in support of the TRO said using mats on all blasts would have required smaller, more frequent explosions, extending blasting for three more weeks and adding $260,000 more in construction costs.
The parties have until October 19 to file statements of fact, recommendations for penalties and a list of unresolved issues. After discovery and rebuttals in November, the first hearing is December 13 at 9:30 a.m. The schedule extends into January.
Staskus isn’t concerned the PSB process will hinder the project. She said this week the company has increased manpower to prepare for the larger turbine pieces’ arrival. She declined to give a specific date but said Georgia Wind would “get the word out to inconvenience folks as little as possible.”
Staskus added Georgia Wind met with local police, fire and rescue crews about public safety.
She said the company will work through the current and any future complaints.
“We are going to be here for the long haul,” Staskus said. “We want to work with our neighbors and be good neighbors.”