The Board of Selectmen (BOS) unanimously agreed late last week it will join the town’s Board of Health and Harvard neighbors in petitioning the Devens Enterprise Commission (DEC) to reconsider the scheme, or protocol, that it approved earlier this month for determining whether the Evergreen Solar plant complies with its noise standards.
The request for reconsideration will claim that the protocol is technically flawed, but more importantly, that the DEC failed to allow adequate public debate and exceeded its authority in its choice of monitor locations. Because DEC bylaws allow only one “reconsideration agent” per town to come forward, the BOS has asked Harvard resident Ruth Silman, an attorney specializing in environmental and land use matters, to represent both boards and the residents. Silman will draft a formal letter that will be sent to the DEC this week. Requests for reconsideration are due within 30 days of a DEC decision, and the DEC then has 45 days to accept or reject the request, which must be done in a public hearing.
The move keeps alive an argument between the town and the DEC that began early this year when Harvard residents first complained that excessive noise from the Evergreen Solar plant next to their property was affecting their health and that of their animals. Evergreen has since spent “millions,” according to company sources, trying to muffle the sounds of its operations. But although noise levels in Harvard have dropped noticeably, Evergreen has yet to show it can operate continuously below the limits set by DEC regulations. The reason, Evergreen and DEC noise experts have claimed for months, is that noise from other Devens activities, and from elsewhere, is adding to the overall racket, making it difficult for sound equipment to determine how much is due to Evergreen alone.
A new protocol, approved with only one objection by the 10-member DEC at its Dec. 3 meeting, attempts to resolve the issue by placing monitors next to Evergreen’s noisiest equipment and setting maximum noise levels for those locations rather than at the Devens-Harvard property line, as required by its published regulations. To make matters worse, say residents, the monitor used to assess noise in Harvard has been placed 194 feet away from the property line, deeper inside Harvard, giving Evergreen, the residents say, additional distance for its sound to abate before being measured. The protocol was devised by Evergreen and modified by the DEC’s sound consultant and staff.
“The protocol now says they’re in compliance,” said Old Mill Road neighbor Jay Wallace at a special meeting of the Board of Health last week. “But they couldn’t get the [sound] measurement they wanted at the boundary line, so they moved the measurement point closer to the plant.” The extra distance, he said, means that Evergreen, which needs to be in compliance at the boundary can now operate at levels 2 to 4 decibels higher than would otherwise be the case. “DEC does not have the authority to do that,” he said.
“The most disastrous thing,” Wallace added, “is that DEC switched from a forum allowing public discussion to one allowing only written [feedback].” Harvard residents are used to “the give-and-take of town meetings,” not the process DEC has adopted, he said, adding, “The decision was made with the worst ramifications.”
In explaining his recommendation that the BOS join the BOH and residents in asking for reconsideration, BOS Chairman Ron Ricci, who attended the Dec. 3 DEC meeting with Selectman Peter Warren, said, “[Peter and I] didn’t think the public process was as good as it should have been to address the issue. At no time during that hearing was there an opportunity for the consultant hired by the neighbors or the attorney hired by the neighbors to actually voice their opinions or explain anything, or for any dialogue between the commissioners and the residents.” Although Evergreen officials and residents were invited to submit written comments, observed Ricci, there was no substantial discussion of their content.
Harvard is the only town abutting Devens to challenge the DEC decision.
“The DEC will be happy to entertain a properly submitted and procedurally correct request for reconsideration,” DEC Administrator Peter Lowitt wrote in an e-mail to the Press this week. The e-mail went on, “The DEC has held 16 public meetings and accepted public comment at 15 of them,” he said. “Our last meeting, at which the commission adopted the protocol, was a deliberative session in which the public were afforded [an opportunity] and requested to participate in writing. Many took advantage of that opportunity and presented information to the commission, some of which was incorporated in the commission’s Long-Term Monitoring Protocol. Our attorney’s recommendation to the commission is on the website and was the basis for the commission’s continued decision to locate their sound monitoring equipment. We continue to believe that locating sound monitoring equipment in the middle of a brook is a bad idea.”
Officials at Evergreen Solar declined to comment on news of the forthcoming letter.
Note: Kathy Bunnell contributed to this article.
