DEVENS — The number of experts lending their opinions to the Evergreen Solar debate grew yet again on Tuesday, as the Devens Enterprise Commission (DEC) continued review of noise pollution between the Devens business and its neighbors in Harvard.
The DEC is reconsidering noise monitoring protocols it enacted on Dec. 3, after the town of Harvard appealed the DEC’s plan and the process in getting there. Harvard claimed, among other things, that the neighbors were effectively locked out of the final two DEC meetings before the noise protocol was set, denying them legal rights in the nearly year long battle.
Before the parties launched into decibel levels, monitor locations and industrial noise standards, Harvard Board of Selectmen Chairman Ron Ricci started with a plea for the DEC to do the right thing.
“Evergreen is a good company and I trust that whatever protocol you come up with they’ll comply with it willingly,” said Ricci. “Responsibility and the task to come up with the right protocol rests with the DEC. You guys basically call the shots but at the end of the day you’re the ones responsible.”
Jay Wallace, co-owner of neighboring Dunroven Farm on Old Mill Road, pled again that the long term monitoring protocol is critical to ending the dispute. “We would like to live in peace and faith,” he said.
Evergreen and the neighbors were both represented by legal counsel.
Attorney Michael Giaimo of Robinson & Cole argued the DEC proposes measuring Evergreen noise from too distant a point. The Devens industrial noise standards require measurements “at the perimeter boundary” of the Evergreen lot. The allowable sound level is 38 decibels at night and 43 decibels during the day. Giaimo said DEC regulations require that inaudible, low frequency, thrumming vibration noises must be measured at the offending sources, not further away, and readings may not exceed 65 decibels.
Giaimo also said the waiver DEC gave Evergreen in its initial permit was inappropriate. “Noise performance standards exist to protect the public,” he said.
Giaimo said the DEC’s protocol “defies credibility” and effectively gives Evergreen further performance waivers.
The neighbors’ noise expert, Richard Horonjeff of Boxboro, explained the Harvard neighbors had a “very quiet ambient environment next to an industry that obviously wants to do business.” With such a silent soundscape, noises linked to the plant’s opening in January 2009, became more pronounced.
He said decibel limits, as recommended by the EPA as far back as 1974, provide for “adequate margins of safety.”
Horonjeff suggested using two existing sound monitors located directly behind the plant next to two known noise sources to determine a baseline noise level.
After determining the quietest periods, whenever a monitor registered a high reading, the differences between the two locals could be added to determine if the decibels limit was breached.
Horonjeff said the monitoring locations, which are closer than the ones currently being used, would help cut out other sources accused of creating noise pollution such as road construction, crickets and more recently idling locomotives.
Neighbors have complained that instead of taking measurements by the Devens boundary, sound readings are being taken hundreds of feet into the complaining properties. DEC Administrator Peter Lowitt said Wallace always knew that the monitor would be so placed due to wetlands. Wallace disagreed, stating he only learned the DEC and Evergreen had been misrepresenting lot lines. Wallace said he discovered it after paying for his own land survey.
Horonjeff suggested a “dose response study” to verify neighbors’ health complaints. “Over time – months – we might learn something very valuable from what the neighbors have to say,” Horonjeff said.
Commissioner John Oelfke suggested the presentation was nothing new on process, or how compliance is calculated, but rather that the neighbors seemed to want to challenge a DEC premise — the location of the noise monitors used to gather data.
DEC consultant TechEnvironmental drafted the original Devens noise standards adopted. “The protocol was written with assumptions,” said Vice President Michael Lannan. “Now they ask to strip out the assumptions and just use the data.”
Wallace clarified, “the industrial line protocol wasn’t included” adding it was a big omission.
Ricci piled on, “You’re trying to take the temperature in your kitchen by putting your thermometer in the basement. Crickets. Route 2. We’re trying to come up with a way of measuring the noise for Evergreen at the property line to eliminate variables.”
Evergreen’s sound consultant, Greg Tocci, never responded. Instead Evergreen CFO Michael El-Hillow took to the podium. “We’re assuming (on) the waivers you granted us that you have the authority to do so,” El-Hillow said to the DEC. “The protocol meets the needs of all the stakeholders. We’ve met the threshold on permanent monitoring.”
He said the plant design engineers calculated the sound readings in over a 24-hour period in July 2007 at 62 Old Mill Road that resulted in today’s sound limits. El-Hillow noted however, that on other days, “the ambient was in violation then… this was the background (sound level) long before there was any construction.”
El-Hillow said the company clearly asked for waivers in seeking their unified permit “in a public forum — that’s all I know.” Otherwise, the plant would have been built in Washington, Oregon or elsewhere, he said.
“You don’t spend $430 million on a facility on the chance that later someone comes in and says ‘Sorry, the permit doesn’t make sense,” El-Hillow blasted. El-Hillow was dismissive of questions as to whether the company planned on suing the DEC on any kind of misguidance.
“We acknowledge that we didn’t act fast enough (about the noise complaints) and we apologize,” El-Hillow said. “The ones responsible were terminated.”
El-Hillow lobbied for the monitoring point to remain as it has been for the past 10 months. “The industrial plant line was never a consideration for us. We never would have put the factory here.”
El-Hillow said the DEC’s sound consultant selected the number, location and placement of the protocol’s monitors. Since then, El-Hillow said the monitors have shown between Feb. 14 and 19 that there were several instances where readings were at or below 38 decibels.
“Are you saying your plant cannot meet the standards without the waiver,” asked Giaimo. “Before we put a shovel in the ground, we did a sound study,”
El-Hillow said Evergreen could meet the required sound level with the monitor in place as they are now.
Attorney Bennet Heart of Noble & Wickersham in Cambridge spoke on Evergreen’s behalf. He reinforced that the company clearly needed the noise waivers at the outset, “It was a precondition of coming here.” He said Evergreen knew it in the summer of 2007 hence the request for phase one for the original 327,000 square foot plant. For the plant’s construction phase two for the additional 148,000 square feet sought in April 2008, that permit also included a noise waiver request. Each permit was granted, however the plant is operating on a temporary certificate of occupancy.
“Noise limits are enduring,” Heart said, “they do not terminate as a result of noncompliance. A multi-million dollar facility was built in reliance on these waivers.”
“Evergreen Solar was clearly poorly advised by its noise consultant,” said Giaimo, stating their report was “riddled with errors.”
“It’s clear that someone sought a waiver from a very narrow provision when they clearly needed a broad one,” he continued, “You got from the DEC exactly what you asked for… Since the point of the regulation is to protect the public, it’s hard to understand how we can now bootstrap a permit.”
Heart denied the spin, dismissing the company’s application gaffe as “nothing but a clerical error.”
“Don’t interpret my presentation on waivers to be resistance to work together,” said Heart. “We believe a good protocol is in place. We don’t want change for change sake – it’s got to be a change that really makes sense.”
As 10 p.m. approached, Chairman Bill Marshall thanked the crowd of about 60 people for its attendance. “This has been a process that has been lengthy and taken a toll on the proponent, Evergreen Solar, as well as the neighbors. We hope to establish a protocol that takes all this in account.”
“Based on what we’re hearing on some of the recommendations and TechEnvironmental’s comments, we may actually be a lot closer than you may have heard during the meeting,” said Lowitt.
The DEC meets again March 4 at 7:30 a.m.