As the Devens Enterprise Commission (DEC) neared a vote this week on whether to adopt new rules for gauging how well the Evergreen Solar plant on Barnum Road is complying with DEC noise limits, a fresh deluge of written comments and the threat of litigation cast a cloud over the proceedings.
At issue was whether the new protocol would allow higher noise levels than do a literal reading of published DEC regulations and the resolution negotiated with Evergreen Solar by the Harvard selectmen and adopted by DEC. With accumulating letters, opinions, maps, graphs, and enough technical data to keep an acoustics class busy, the commissioners have had their hands full. And adding to the pressure faced by decision-makers was the statement of a lawyer representing Harvard property owners who said in her comments that her clients were prepared to ask for a court injunction if the protocol were approved in its present form. Such an action could shut down the plant. The DEC commissioners were scheduled to vote on the proposal Dec. 3.
“My clients and their neighbors do not want to have to file an injunction…against [Evergreen Solar],” wrote Valerie Lawson of Lawson and Weitzen, LLP, who represent the Berwind family, owners of Ayer Road land that abuts Devens. “We prefer working cooperatively.”
Jim de Zutter, Harvard’s senior representative on the DEC, said Monday that he had already spent four hours preparing for this week’s meeting and wasn’t finished with his list of comments and questions.
Evergreen Solar has been in violation of DEC noise regulations since March and—at a cost of millions, according to plant officials—has struggled to operate without causing sound levels on Harvard properties to rise above the 38 decibels by night or 43 decibels by day that DEC requires. In October, DEC and Evergreen Solar sound consultants were asked to devise a new protocol to permanently monitor whether the plant is in compliance. DEC and company consultants believe they have determined how high sound levels at the plant can be permitted to rise before noise there will cause sound levels in Harvard to rise above 37 decibels.
However, Harvard neighbors and their advisers say the protocol gives Evergreen a break by subtracting two decibels from every measurement taken in Harvard to compensate for insect sounds, letting Evergreen claim, for example, that a 40 decibel level in Harvard is really 38 decibels. Residents also say that the measurement point in Harvard used to set the standard is not correct. Furthermore, they say the way sound is averaged over 20-minute periods can mask sharp noise spikes from the plant that would show up as violations if shorter measurement periods were used.
“Instead of ES [Evergreen] taking all noise abatement steps necessary, what we have seen is continuing manipulation of the noise data to try to avoid compliance,” wrote Lawson in her comment on the protocol. “We are extremely concerned by what we see … as an alarming possibility—namely that ES is going to try to get DEC to stray from the clear meaning [of its industrial standards for noise and the July resolution].”
Asked after a recent hearing if he had ever seen such scrutiny of a manufacturing plant, Evergreen Solar’s chief financial officer, Michael El-Hillow, said, “Never. I have been in the business for 20 years, and I have never seen anything like this.” He added that Evergreen “will do whatever it takes to make it right.”
