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Sheffield: Wind owner seeks PSB reconsideration of testing order

SHEFFIELD – The owner of the Sheffield wind project, SunEdison, is asking the Vermont Public Service Board to reconsider its recent ruling requiring further sound testing at the home of Paul and Carol Brouha, who live in neighboring Sutton.

Andrew Raubvogel, the attorney for SunEdison, doing business in Sheffield as Vermont Wind, LLC, filed a motion on Aug. 12 asking the PSB to clarify or reconsider its recent order mandating further testing. He states in the motion that the PSB hearing officer “overlooked industry standards and specifications without which this proceeding will not produce reliable data.”

He also asserts that the PSB officer’s order is inconsistent.

“The monitoring called for in the instant complaint investigation is a fundamentally different exercise: its purpose is to determine the actual sound levels at Mr. Brouha’s residence with a high degree of confidence,” argues Raubvogel. “The proceeding here is a formal investigation directed at enforcement, and, potentially, penalties should a CPG violation be found.”

The motion to reconsider or clarify goes on, “It must, as a matter of due process, be based on scientific data, not arbitrary determinations of what the sound levels might be. The Hearing Officer relied in part on the Department of Public Service’s representations concerning contiguous monitoring on Lowell Mountain. But to Vermont Wind’s knowledge, no analysis of the data collected from continuous monitoring there has been filed publicly.”

The motion argues that that PSB hearing officer’s decision was “clearly erroneous, and will cause a manifest injustice,” with regard to protocol over measuring sound levels indoors.

Further, the motion argues, “The Hearing Officer’s decision to require exterior monitoring was based in part on his concern that ‘an extended period of interior sound monitoring, as proposed by Vermont Wind, constitutes an unreasonable intrusion on Mr. Brouha and any other occupants of the residence.’ ” The company states it did not propose an extended period of interior sound monitoring, and said limited periods of time would balance privacy concerns with due process and scientific requirements.

“This investigation is, at its heart, a scientific exercise, and should be guided by scientific, rather than legalistic, principles,” the motion concludes.

The hearing officer earlier ordered that the parties reach consensus on a sound monitoring plan, which SunEdison spokesman John Lamontagne said has occurred.

At an Aug. 2 status conference, the record shows the parties did agree they would attempt to reach a monitoring plan, and would file individual plans if they were unable to do so.

In a recent ruling, the PSB, after opening an investigation into concerns about noise level at the Brouha property, ordered that additional testing will be required by the state, as part of the Certificate of Public Good (CPG) which the wind project operates under.

Brouha and his attorney, Denise Anderson, had contended that it had been proven on the record that the company’s permit conditions were violated already, but the state has decided to order further testing in the matter, in a recent order.

Anderson, of the state’s ruling ordering further testing at the Brouha home, said, “It’s about time. For the last four years, Vermont Wind has been allowed to self-certify compliance with the CPG noise criteria. We hope this is the beginning of real compliance testing and accountability.”

Anderson said, “When Vermont Wind announced that it planned to file a motion for reconsideration of the PSB order, we were not surprised.”

She asserted after the recent hearing that the wind company “has reported and manipulated data to avoid being held in violation with the CPG.”

The company has contended it has operated within the bounds of its permit, and agreed to further testing with the state, according to Lamontagne.

“Vermont Wind will get its delay by continuing to litigate against Mr. Brouha, but we can only hope the PSB and the Department of Public Service will keep in mind that the Brouhas have waited more than five years for any relief whatsoever,” said Anderson.

Anderson said, “We also know the rest of the community awaits Mr. Brouha’s outcome, as this case appears to be the centerpiece of a future statewide monitoring and compliance protocol. The only outcome that will serve justice is independent monitoring by experts other than Vermont Wind’s, and a correlation of those results with the previous 2012 testing. Then, the public will see what Vermont Wind has been doing.”

The project was given its CPG in 2007, and in 2015 the PSB opened an investigation into whether the conditions of the CPG were being adhered to, leading to the recent order requiring further testing. The hearing officer in the case has ordered that testing begin as soon as practical and happen through the end of October, the record shows.

Brouha’s attorney is arguing that noise testing happen for a minimum of four weeks in order to have sufficient data to determine compliance. She also argues that all 16 turbines at the wind project be in operation during testing times, to capture when the project is at its loudest impact to neighbors.

Anderson said on Thursday, “We have agreed to meet with experts to discuss the plans on or before September 30th. If there is no agreement among the three parties, we have agreed to file comments/briefs on each parties’ position on the plan.”