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Sheffield wind case sees flurry of legal motions

While the Vermont Department of Public Service continues to investigate Sutton resident Paul Brouha’s longstanding concerns about excess noise at his home near the Sheffield wind project, legal wrangling continues.

Denise M. Anderson, Brouha’s attorney, argued in a recent motion for partial summary judgment in the case before the PSB that a violation of noise standards in the wind project’s Certificate of Public Good (CPG) has been proven, and she is seeking that violation be declared.

In the summary judgment request, Anderson incorporates several years of public record in the Brouha case leading up to the DPS case being opened, after DPS’s own consultant determined that the wind facility’s noise standards may have been exceeded.

Anderson said this week, “By opening this new docket, our legal position is that you have to first deal with the complaint before you can start looking at what you’re going to do now, the sound is as the sound is as the sound is…you can’t change it.” She said there are multiple experts on the record who verify the noise levels were in excess of what the CPG permits.

One pre-hearing conference has so far been held in the case, on Jan. 19 in Montpelier.

At that time, DPS’s attorney, Aaron Kisicki, said the DPS is seeking PSB clarification on “at least four issues…that relate to sort of best practices in the standards going forward for sound monitoring.”

Anderson said at the pre-hearing conference she is seeking that the PSB find a violation has taken place “and that penalties should be considered against Vermont Wind.”

Kisicki said at the pre-hearing conference the DPS wants to conduct additional testing.

Attorney Geoffrey Hand for Vermont Wind stated at the hearing that, “…We are attempting to get to testing at a time that would allow us to understand the sound levels when someone arguably might have windows open.”

“If the PSB wants to look at these variables, it cannot rewind history, because the data is the data,” said Anderson.

Anderson said the DPS and Vermont Wind “are trying to change the rules of the game…I’ve never seen anything like this.”

“You can’t go and change the rules to get a valid report, and that’s really what they’re trying to do in hindsight,” said Anderson. “We brought forward in that summary judgment every single fact that we felt was relevant in this docket.”

The record shows there has been a violation, insists Anderson.

Brouha also has a nuisance claim in U.S. District Court of Vermont, pending a ruling or outcome from the PSB process, said Anderson.

Brouha has filed multiple noise complaints, the first within two months of the wind project going online, in December 2011, according to his attorney’s recent motion. He filed complaints in 2013 and again in 2014.

In her motion, Anderson argues that “Vermont Wind failed to follow the Monitoring Plan by not performing the “windows open” test of noise levels at the Brouha residence.

The DPS and Vermont Wind, LLC, owner of the industrial wind project in Sheffield, both have opposed Anderson’s motion for summary judgment, and filed motions arguing it be denied.

“First, there are material facts in dispute related to the questions of whether Vermont Wind, LLC failed to follow the methodology and protocol prescribed in its Revised Sound Monitoring Plan in violation of Condition 10 of the project Certificate of Public Good, and whether the indoor sound levels at the Brouha residence exceed the project CPG noise limit,” wrote Kisicki in his motion.

Vermont Wind argues, “…There is simply no reliable data available to answer the basic question that must be answered to determine compliance with CPG Condition 8: How loud the project is inside Mr. Brouha’s residence.”

“Mr. Brouha has had his ‘day in court’ on this issue, and the Board should not permit him to waste its resources, and those of the other parties, re-litigating it,” the Vermont Wind opposition brief concludes. “Mr. Brouha’s Motion for Summary Judgment goes to great lengths in attempting to sidestep the necessity for fact-finding in this investigation.”

John Lamontagne, spokesman for SunEdison, said the company cannot comment on pending litigation.