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DEC votes to revise noise protocols for Evergreen Solar

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AYER — By a one-vote margin, the Devens Enterprise Commission opted to revise the Long Term Monitoring Protocol it adopted to measure whether the Evergreen Solar manufacturing plant is in compliance with Devens’ industrial noise standards. In December, the commission’s acceptance of a company-drafted protocol sparked cries of undue process from Harvard neighbors and then a formal challenge by the Town of Harvard on the neighbors’ behalf. On Thursday, June 3 the commission voted 6-5 in favor of making revisions.

In return for Harvard’s dropped challenge, the commission agreed in January to entertain more input on the protocol. In the meantime, Evergreen’s Barnum Road operations have continued unabated. Neighbors say they have stopped complaining because the protocol permits noise levels that are too high.

Under the original protocol, sound readings are logged 24-hours a day, seven days a week in 20-minute intervals from monitors aimed at two pieces of equipment that have been pegged as the reasons for the plant’s allegedly excessive noise. The purpose of the monitors is to evaluate whether or not the company is complying with its 43-decibel day and 38-decibel night limits.

The present protocol limits noise from the plant’s air scrubbing equipment to 66 decibels during the day and 61 decibels at night. Along the nine large air cooling towers readings are not to exceed 61-decibels during the day and 56-decibels at night. Anything higher than those levels would be a violation

Evergreen’s sound expert, Greg Tocci of Cavanaugh Tocci Associates, collaborated with commission’s sound consultant, Doug Sheadel of Modeling Specialties, to draft and finalize the protocol.

“We were asked six months ago to work with Doug on the protocol,” said Evergreen Solar CFO and COO Michael El-Hillow. “(We’ve) been in compliance since then, despite what people may say. That doesn’t mean you can’t look at it again. We still want to solve the problem.”

Attorney Michael Giaimo, representing Charles and Janice Perry of Old Mill Road, challenged assertions that the plant is in compliance. “We wouldn’t have been here if they’d avoided the complaint-based system in the first place,” he said. “This kind of proceeding is nothing that anybody wants continuing.”

Giaimo questioned Evergreen’s motives. “Frankly, it’s been a year and maybe stalling and delay actually serves their purposes. I don’t know,” he said.

In November, Evergreen announced it was relocating is Devens solar panel assembly to China. As a result the company was to realize a $40 million equipment write-off over the following year. Solar panel wafer and cell manufacturing are to remain on Devens.

The news caused an uproar, as it came just two years after the company’s September 2007 Devens groundbreaking, which was funded partly with $58 million in state grants and tax incentives. As the sound saga continues, the final occupancy permit for the building has yet to be issued.

Jay Wallace, co-owner of Dunroven Farm on Old Mill Road, challenged Tocci’s calculation of the protocol “delta.” The delta is the adjustment applied to averaged sound readings from the scrubbing equipment and cooling tower monitors to project what the noise levels are when measured at the Devens’ boundary line.

“When you factor wind (speed and direction) or other environmental issues, you come up with a smaller delta,” said Wallace. “It’s that simple.”

“In large part, I agree with Jay,” said Tocci. “We did the best we could with whatever data we could collect” leading up to the protocol release. Wind readings were reconstructed from Fitchburg historical weather logs, though now readings are taken on site.

Wallace challenged that with each decibel hanging in the balance, Tocci had performed a series of mathematical modifications that were skewed in Evergreen’s favor. “This decimal-point business has been driving everyone crazy,” Tocci said.

“Especially because you’ve been rounding it up,” Wallace said, prompting scattered laughter.

In May 2009, the commission discussed the potential for per diem fines against Evergreen for noncompliance, as well as the continued withholding of the plants’ final occupancy permit. Harvard resident Deborah Skauen-Hinchliffe asked the commission to reconsider fines for “every single day that you find they’re not in compliance. The neighbors have been suffering for over a year.”

To try to find a middle ground, commission consultant Michael Lannan of Tech Environmental put forth two concepts for altering the protocol on how to measure compliance.

Lannan first suggested his preferred “bright line” approach, which sets a simplified and unified set of absolute limits, for both day and night at each location. The scrubbing equipment’s readings aren’t to exceed 58 decibels and the cooling tower’s readings would be capped at 52 decibels. Lannan says the approach reflects Evergreen’s insistence that it’s a 24-hour “steady state operation” with little-to-no variation on noise output.

The commission staff favored the bright line approach, as did Sheadel, who praised the method for “quantifying these mushy variables” and obviating the need for the collective brilliance of the experts retained by all parties.

“If we achieve this lower level, we just assume compliance because we know it is,” Sheadel said. “We all move on with our lives and the community doesn’t have to come to these meetings and expend huge amounts of resources. … It allows you, the commission, to not even have to raise an eyebrow.”

The second approach, dubbed the “gray area,” would require further evaluation whenever complaints are logged and readings are found to register between a to-be-determined “low-end” conservative value and the “upper end” value as stated in the current protocol.

“That would require (DEC staff member Neil Angus) to go out and determine what else is causing the complaint,” Lannan said. It adds a human factor, Lannan said. “That’s a very cumbersome expansion of what’s being done now.”

Commission Chairman William Marshall hoped for a process that would protect Evergreen as well as the residents. However, the commission’s legal counsel Edith Netter cautioned, “My mantra, and our mantra — the DEC’s mantra — is we enforce regulations. That’s it. No more. No less.”

Netter said the complaint-based process is “somewhat of an art because the enforcement person has to determine when something is a nuisance” but added it’s an approach “clearly within your authority.”

Regarding the bright-line limit approach, Netter warned it “is perhaps beyond your authority.”

“You forgot the human element,” Commissioner Armen Demerjian said to Netter. “Humans are being hurt. … We should look for a win-win situation between Evergreen and the neighbors.”

“I’m not trying to demonstrate concern for Evergreen or the neighbors. I’m trying to advise,” Netter said. “I have some concerns, that’s all.”

“Not only does the commission have to enforce the regulations, they have a duty and an obligation to act as a health board as well,” said Wallace. “You are more than a regulator. You have to take into account the health concerns.”

“There’s no reason Evergreen can’t comply with a fixed standard,” said Giaimo, speaking favorably of the bright-line approach.

Giaimo also charged that Evergreen has a “history of installing cheaper equipment” and has refused to build a sound muffling wall behind their plant. “I’m not sure where you got that from,” El-Hillow defended on the plant’s equipment. “That is categorically untrue.”

“We didn’t say we wouldn’t build a wall,” El-Hillow said. “We still want to solve the problem. … Mr. Chairman, we need to know the lower limit because we need to model that with our factory so we know what the wall might do. We need to know the numbers.”

El-Hillow expressed interest, conversely, in the gray-area approach. “Quite frankly, I think that’s a great compromise. Give us the ability to operate,” he said. “We have not received any complaints from the neighbors in a long time.”

At that point, Dunroven Farm co-owner Laura McGovern spoke out. “The (protocol) numbers are too high, so what’s the point?” she asked.

“There’s no data that suggests they’ve been at 66 or 61 or ever been that loud,” said Lannan.

“That’s the problem with the process,” Wallace replied.

“Are the lower numbers attainable?” Demerjian asked.

“We don’t think so but we don’t know,” answered El-Hillow, citing the need for engineering review.

“It is 100-percent attainable,” Lannan said, provoking an outburst of audience applause. “It’s possible. There are quieter fans. There are noise walls that can be put in place. … You didn’t ask what it would cost.”

The Commission will begin the review of the Protocol decibel limits on Tuesday, June 29.