KINGSTON – It’s looking more likely that the Board of Health will have a vote in July or August on placing further restrictions on operations of the Independence wind turbine.
The board may vote to amend an abatement order approved last fall restricting the hours of operation under certain wind conditions when the turbine is deemed to be out of compliance with state noise regulations, or it could enact a new one.
Board of Health Chairman Bill Watson said the order could be amended by lowering the threshold that needs to be met for the turbine to be shut down or by extending the hours when it must be shut down.
The turbine’s owner, Kingston Wind Independence LLC, believes either could be the case, at least according to a June 10 letter to the Kingston Board of Selectmen from KWI co-owner Bradford Cleaves. The town leases the land for the turbine to KWI and they have a power purchase agreement.
In his letter, Cleaves writes that new findings indicate that nightly shutdowns of the turbine will likely be more extensive and more frequent, addressing the “ongoing regulatory actions taken by the Board of Health regarding hours of operation and noise/nuisance complaints.”.
“The new findings also suggest the addition of a more complicated set of shut-down parameters,” he wrote. “Because the turbine was not designed for this kind of operational scenario, this would likely necessitate a fixed, daily ‘blanket’ shutdown between certain hours.”
Selectmen did not grant his request for a meeting prior to the June 18 Board of Health meeting when the results of the final sound study report were presented publicly for the first time. He requested the meeting to review KWI’s contract with the town.
Cleaves wrote in his letter about the possible implications of further restrictions on turbine operations.
“If we are going to go this route the energy generation potential for the turbine will be drastically further reduced. It will be impossible to meet our contractual requirements for production to the Town of Kingston and to the Massachusetts Clean Energy Center (CEC). This will have pejorative implications for our contract with the town and our lease of the landfill site. We will have to renegotiate the contract, declare the site condemned, or pursue some other measures that will involve remuneration and/or a significant change of terms.”
The public presentation to the Board of Health and interested parties last week included a report from consultants Harris Miller Miller and Hanson about additional violations of the state noise regulation and policy that was released back in April.
The state Department of Environmental Protection was challenged by Duxbury resident Joanne Levesque to explain why, if state noise regulations and policy have been violated, the state isn’t taking action against the turbine owner.
Assistant Commissioner Douglas Fine said it is DEP’s practice to defer to local boards of health in nuisance and noise cases like this, while offering the town all the assistance it needs, but Levesque claims that is not the case. She said the state has taken enforcement action in the past when there were violations on the state’s air pollution regulation.
According to Levesque, Fine was interviewed by a documentary filmmaker after the meeting and admitted that MassDEP has enforced air pollution regulations in other situations.
“The state is in fact putting the town of Kingston in the crosshairs of a lawsuit, when it is the state (MassDEP) that should be the enforcer and therefore the agency sued by developers,” she said. “This is my opinion, of course, but it supports the open question as to why the DEP refuses to enforce their own regulation. They’d prefer the town deal with the legal repercussions.”
Town counsel Jay Talerman said the Board of Health works under a nuisance standard, and that after confirming his conclusion with the state, the exceedences of the state’s 10-decibel limit qualify as a nuisance. Talerman drafted the abatement order and stressed the need for the board to have thorough documentation in the administrative record in case the courts get involved.
Talerman told Levesque that he’s comfortable with the state’s explanation regarding the Board of Health’s jurisdiction.
What is different this time around is that the HMMH report includes predicted data as well as monitored data to determine exceedances as evidence of non-compliance. Fine said past practice is for the DEP to rely on actual monitored data, which gives the state a high level of confidence in the data.
Fine said DEP supported HMMH using extrapolated data in its report as useful information to guide the Board of Health’s actions, but that this is new territory in regard to its confidence in predicted data.
“We will have to work closely with the town to determine what will be the best course of action given the differences between the actual monitored data and the extrapolated data and the predicted exceedances,” he said.
Board of Health member David Kennedy, who had believed he would be able to vote on turbine matters based on previous discussions with the state Ethics Commission, wasn’t able to discuss the sound study as a board member. Unless there is a change, he won’t be able to vote on turbine matters after hearing recently from the state that they needed more information from him first. Kennedy believes a complaint was filed with the state, leading to the reversal, but said he can’t prove it.
Kennedy lives on Copper Beech Drive, one of the roads affected by turbine noise. After recusing himself from the discussion, he was successful in pushing for HMMH to agree to release previously unreleased data from Dec. 13 or Jan. 21, when sound was measured.
Representatives from the consultant and Massachusetts Clean Energy Center argued that the data was contaminated and unreliable, but finally agreed to share the raw data. Kennedy cited the need for transparency when making his request.
Levesque also challenged HMMH and Fine to explain the withholding of the raw data HMMH collected despite repeated Freedom of Information Act requests.
She said Fine may have been technically right during the Board of Health meeting that it was not in possession of the data, but DEP was aware that data was collected that potentially indicated that HMMH got close to worst-case noise conditions during testing in the Schofield and Leland roads neighborhoods. Without that data, she said, there cannot be an independent peer review of that data.
The final report on the sound study won’t be released until after a group called the Consensus Building Institute has prepared a written summary based on comments received through Tuesday, June 30. The date of that meeting will be determined by the release of the final final report.
Written comments about the report can be submitted to Griffin Smith at email@example.com. MassCEC will make the summary available on its website at www.masscec.com. The study will then be updated and re-issued.