FAIRHAVEN – The Board of Health accepted the wind developer’s July 1 proposal for a mitigation plan Tuesday, a week after reaching an impasse in executive session. Following that impasse, Fairhaven Wind LLC defied an earlier health board order to shut the turbines down at night and turned them back on.
The motion Tuesday by Jeannine Lopes passed 2-1 with Chairman Peter DeTerra joining her and Barbara Acksen opposed.
Ms. Lopes’s motion stated that “subject to further testing and verification,” if the turbines were in compliance with the developer’s July 1 mitigation plan, they would be considered to have abated the noise “nuisance” under state law. The state limits noise to no more than 10 decibels louder than background noise in a given area.
The health board “revoked” all the other provisions of its June 17 order, but said it could issue future orders to “protect public health.”
Fairhaven Wind’s mitigation plan states that the turbines did not exceed state noise limits during summer months, only in five tests from November 2012 to April 2013.
The possible mitigation steps include shutting one turbine off at night, feathering the blades or increasing the “cut-in speed” for the south turbine when winds are from the west/northwest, north/northwest or northeast. The plans says this scenario could take place from November to April when the exceedances occurred tests conducted by the state Department of Environmental Protection. The exceedances occurred between midnight and 4 a.m.
Fairhaven Wind said its proposed changes “should decrease the sound output from the project by approximately 1.8 – 3.6 decibels.” It said implementing the mitigation plan would require developing a new software code. The developer said the code change would require further testing to ensure that the changes occur automatically and that automating the code changes could take months.
Fairhaven Wind said it would work with town boards and state entities to develop a “protocol for periodic monitoring” to demonstrate that the turbines are in compliance with the state’s noise regulations. It said it was receiving technical guidance and seeking financial support for compliance testing from the Massachusetts Clean Energy Center.
The state DEP and Mass CEC have been involved in steering committee meetings with the developer to try to reach a resolution to bring the turbines in compliance and avoid litigation. The Board of Selectmen has also been in negotiations with Fairhaven Wind, after saying the turbines were not in compliance with the terms of its contract because of the noise violations.
The Board of Health order in June called for the turbines to be shut down from 7 p.m. to 7 a.m. It also spelled out specific terms, including some to ensure that the health board received operational data. Another called for the developer to pay for an independent acoustical specialist or engineer.
On Tuesday, the health board voted 2-1 to explore town funding to hire a consultant. It did not ask for funding from Fairhaven Wind LLC as in the earlier order. Ms. Acksen voted against this motion.
There was some discussion of a test that took place around June 23-24 where adjustments were found to decrease sound levels. Town Counsel Thomas Crotty said there are still a couple of tests the DEP hasn’t performed yet under additional scenarios. He said Fairhaven Wind believed it could reduce noise to acceptable levels by adjusting the blades and that they assumed such changes would work in the future.
Ms. Lopes and Mr. DeTerra left soon after the vote, refusing to answer any questions from the news media. They also refused to answer questions after last week’s emergency meeting, an hour of which was held in executive session. This week, they held the meeting in open session but did not offer explanations for their votes.
Mr. Crotty seemed surprised when the board didn’t vote to go into executive session, as listed on its agenda.
Before this week’s meeting, The Standard-Times attorney challenged whether going into executive session was allowed under the open meeting law. Mr. DeTerra justified it last week by saying it was allowed because of “potential” litigation.
A closed meeting is only allowed for pending or existing litigation, The Standard-Times said.
Ms. Acksen, like last time, stayed and tried to answer questions from the news media, but she was unclear what was spelled out in the July 1 mitigation plan. Ms. Acksen, who represents the health board on the steering committee, said they’d gone through several alternate proposals since July 1.
As for the impact of the new group, Friends of Fairhaven Wind, she said, “I think there’s a lot of pressure about the money. Isn’t this all about the money?”
Friends of Fairhaven Wind expressed approval for the board’s actions. The Friends group has been pushing for the town to let the turbines run 24-7, citing a loss of revenue from fewer operational hours and the cost of litigation.
About 40 members of this group attended Tuesday’s meeting, many of them sporting T-shirts in support of green energy. Among this group, also wearing a T-shirt, was former Selectman Brian K. Bowcock.
Founder Daniel Freitas said they were pleased with the board’s acceptance of the developer’s mitigation plan. He said, “We’re hoping to keep the turbines running.” Mr. Freitas said he thought one of the mitigation options included feathering the blades.
Gary Lavalette of the Friends group played recordings he said he’d made of the turbines before and after the adjustments were made. He said, “They used to have a noise like grinding corn. Now it’s like a whisper of wind.” He added, “Definitely, something has changed.”
Ann DeNardis, attorney for Windwise, said, “The mitigation plan to my reading is exceedingly vague.” She called it “unenforceable and commits to no particular changes in the operation of the wind turbines.”
Ms. DeNardis said the developer hasn’t provided any data to prove that they’ve complied.
For a change, not many Windwise members attended Tuesday. John Methia said they decided not to crowd the meeting room to avoid inevitable friction with the Friends group.
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