A Sutton homeowner, who has filed multiple complaints with the Vermont Public Service Board (PSB) over turbine noise from the nearby Sheffield wind project, had his motion for summary judgment denied in an investigation into whether Vermont Wind allegedly violated a condition of the company’s Certificate of Public Good (CPG).
In an order signed Thursday by the PSB’s hearing officer in the matter, George E. Young, Esq., Young denied Sutton resident Paul Brouha’s motion seeking partial summary judgment.
Brouha’s case involves his argument that Condition 8 of the CPG has been violated “…because indoor sound levels measured at Mr. Brouha’s residence exceeded the 30 dBA criterion…based on testing conducted by his expert, Noise Pollution Clearinghouse, and, according to Mr. Brouha, confirmed by the Department’s (Department of Public Service) expert.”
“Mr. Brouha further contends that Vermont Wind failed to comply with the sound-level monitoring plan,” related to windows-open testing at four designated monitoring locations, the decision issued Thursday states.
The board can grant summary judgment if there is no genuine dispute as to any material fact, and if the party filing the motion is entitled to the judgment as a matter of law.
“Both Vermont Wind and the Department contest Mr. Brouha’s conclusions,” the decision states.
The DPS maintains, the order states, that the PSB “…must clarify certain variables underlying the evaluation of sound monitoring data conducted pursuant to Condition 8 (of the CPG) before it can reasonably find a violation.”
Young, the PSB hearing officer, wrote, “Based on the filings by the parties in this proceeding, I conclude that genuine issues with respect to the material facts underlying Mr. Brouha’s motion clearly exist. The Department and Vermont Wind have raised a number of issues with regard to the clarity of the prescriptions for the sound level monitoring required by the CPG and Monitoring Plan, including testing methods and the assumptions underlying those methods.”
“I cannot conclude that summary judgment is warranted,” concluded Young.
In December, the PSB, which issued the permit to allow the wind project to operate, subject to conditions including noise-level, opened an investigation into the development’s compliance related to sound levels and impacts, according to the order denying Brouha’s motion for summary judgment in the matter.
Brouha’s attorney, Denise M. Anderson, in April filed the motion on his behalf seeking that a violation be declared by the PSB. She said earlier there are multiple experts on the record who verify the noise levels were in excess of what the CPG permits.
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.”
The record shows there has been a violation, insists Anderson.
The DPS and Vermont Wind, LLC, owner of the industrial wind project in Sheffield, both earlier opposed Anderson’s motion for summary judgment, and filed motions arguing it be denied.
Vermont Department of Public Service attorney Aaron Kisicki, argued in a recent motion in the case that Brouha “is not entitled to summary judgment given the facts and procedural posture of this case.”
Likewise, Vermont Wind, LLC, filed opposition to the summary judgment motion, in a 22-page motion filed with the PSB on March 11.
“In essence, Mr. Brouha asks the Board to abort this investigation before it has even reviewed the parties’ initial briefing,” the Vermont Wind argument stated.
Brouha, contacted Friday, deferred to his attorney.
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