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Parties fight wind filing; Developer seeks to limit discovery question volume

SWANTON – Participants in the Public Service Board’s Swanton Wind review filed responses to the project’s proposal for a new review schedule on Friday.

The filed schedules were similar. All stretch the review process beyond May 2018.

But many of the filings were similar in another way, too: plainly stated, vehement opposition to Swanton Wind’s proposals to limit discovery questions and bill questioners for the time of the project’s expert witnesses.

Inclement weather and an abundance of discovery questions have delayed the board’s review of the proposed industrial wind farm, necessitating a revised, practical schedule.

Swanton Wind supplemented its schedule proposal with a memorandum, also filed Friday, stating that the two rounds of discovery on both the project and the review’s participants “allows all parties an equal opportunity to discover facts relevant to the Board’s inquiry,” and that the proposed schedule allows for the board to issue its final order regarding the project by August 2018, which “would facilitate Swanton Wind’s ability to meet the deadline for the 2021 capacity supply obligation for the forward capacity auction.”

The project noted its opposition to several proposed schedules placing two months between discovery rounds. Swanton Wind “has already been subject to a five-hour workshop, nearly 1,000 questions and months of delay since the petition was filed in September 2016.”

One point of agreement among all the schedules is a public hearing and site visit in late June.

Paula Kane, who filed on behalf of the review’s many dozens of citizen participants, asked that that site visit include visits not just to the project’s proposed construction area, on Rocky Ridge, but also to Fairfield Pond “and the southeasterly side of Fairfield Pond.”

The Vermont Department of Public Service (DPS), not to be confused with the Public Service Board, supplemented its own filing with a substantial, nine-page memorandum detailing perceived faults in Swanton Wind’s application before the board.

“The Department’s schedule provides [Swanton Wind] with an opportunity to clarify its intentions as to whether it will cure the deficiencies in the petition within a reasonable time,” the DPS’s Aaron Kisicki wrote, “and sets a deadline for parties to file motions if Swanton Wind fails to cure.”

The DPS filing stated that a March 2017 decision from the board dismissing Swanton Wind’s application for a power-purchase agreement “has rendered a significant portion of Swanton Wind’s evidence on certain Section 248 criteria moot and/or irrelevant.”

The DPS filing singles out testimony and exhibits in Swanton Wind’s application concerning the “need” for the project. The DPS argued that the project’s main testimony regarding need was “predicated almost exclusively” on the now-dismissed powerpurchase agreement application, and is therefore “moot.”

Then there’s the issue of reimbursement to Swanton Wind’s expert witnesses. The project raised the issue when it filed its proposed schedule on May 24 – a footnote specified the project “will be seeking reimbursement for its experts’ time spent preparing discovery responses,” citing a Vermont statute apparently allowing such a request “unless manifest injustice would result.”

Other participants in the Public Service Board’s review seemed to think it would. The DPS did not try to assert that such a request was unprecedented, only that such a request had not previously been granted “to the best of counsel’s recollection”; but more importantly, that the DPS “has significant reservations about its appropriateness in this context.”

Attorney Ed Adrian, on behalf of the Towns of Fairfield and Swanton, said the towns “strenuously object to [Swanton Wind] raising the specter of shifting the cost of its experts from a private-forprofit developer onto the residents of the towns and, more broadly, the people of Vermont.”

Kane said the intent of the footnote, which has not yet been filed as a motion before the board, “seems to be to warn intervenors to not ask questions, or possibly as a warning to the board for the board to okay the 50-question limit or else face ruling on a motion for the imposition of costs.”
Swanton Wind proposed the above-mentioned 50-question limit in its May 24 filing as well, “given the unprecedented number of parties in this case and the amount of discovery already served” on Swanton Wind, “much of which was duplicative.”

Parties opposing the expert witness reimbursement also opposed the 50-question limit.

The Public Service Board has yet to rule on the schedule, and may not rule on the 50-question limit or reimbursement issues, at least of yet, as they have not been filed as motions before the board.

[rest of article available at source]