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Board of Health sends written order to turn turbines off overnight, asks for funds

Fairhaven Wind developer Gordon Deane announced his intention Monday to recover from the town the lost profits of the two turbines the Fairhaven Board of Health ordered shut down overnight.

His announcement was in reaction to news earlier Monday that the Board of Health had issued a written order to shut down the turbines at night.

The board had voted June 10 to order the turbines shut down but Fairhaven Wind announced over the weekend it was ignoring the order because it was not in writing. The Monday order from selectmen also requested funding from Fairhaven Wind to help hire an independent expert in acoustics.

Reached by phone Monday evening, Deane called the order “excessive and without merit,” noting that the Department of Environmental Protection’s testing only found four violations between midnight and 4 a.m.

He said the turbines would be shut off Monday night in an effort to “bring the town to the table.”

He said, the act of good faith would not be without its cost, claiming each night the turbines are shut down costs the project approximately $15,000.

“We expect to be pursuing the town for that money either in court or in negotiations,” he said.

Selectmen were at their regular meeting Monday evening and could not be reached for comment.

The Board of Health order was to be sent to the developers Monday via U.S. mail overnight shipping.

“Continued operation of the wind turbines … in excess of the limit set forth in the DEP noise regulations, during the hours of 7 p.m. to 7 a.m., constitutes a nuisance which is injurious to the public health,” the order reads. The board also “hereby orders that the turbines not operate from 7 p.m. to 7 a.m. until such time that the order is removed by the Board of Health.”

The order includes a stipulation that Fairhaven Wind must provide the board with funds for it to hire an independent acoustical engineer to review mitigation plans and testing data. The order did not include a cost estimate and Chairman Peter DeTerra said he did not know the cost.

The order also requests funds to hire a contractor to continuously monitor the turbines.

Board member Barbara Acksen said she wanted the terms written into the order because “I don’t know how cooperative (Fairhaven Wind) will be.”

Town Counsel Thomas Crotty advised the board against using the longer version, saying “it boxes you into a corner.”

“You have to be flexible,” he said. “We don’t want to go to court over every single detail.”

Board member Jeanine Lopes did not sign the order, saying only that she “didn’t vote on the motion to approve the order and I wasn’t in favor of it.”

“I’m not going to be signing it,” she said.

After the vote, which took place just after noon, the board went into a closed-door session to discuss the possible litigation outcomes of the order with Crotty.

The order cites violations of the state’s noise regulation by the turbines found during testing conducted by the DEP.

The board voted last week to shut the turbines down between 7 p.m. and 7 a.m. at a meeting where turbine developers were present.

The developers initially adhered to the spoken order but said Saturday they would no longer be curtailing turbine operation because they had not received written notice of the order.

Town Counsel Crotty warned the board that though the developer is responsible for proving he can operate the turbines without violating state noise regulations, the board does not have the authority to tell the developer how to mitigate the violations.

“They have to show that they can meet DEP regulations, but under general law it’s their decision about how to cure the nuisance,” he said.

Correction: Turbines

A report Tuesday misstated the amount of revenue lost by Fairhaven Wind in shutting down the turbines overnight. The lost revenue is more than $1,500 per day.

June 19, 2013 |