Board of Health sends formal notice to Fairhaven Wind to shut turbines down at night 

FAIRHAVEN – The Board of Health formally notified Fairhaven Wind LLC earlier this week that it must shut the wind turbines down from 7 p.m. to 7 a.m.

Board of Health member Barbara Acksen and Chairman Peter DeTerra voted in favor of a long version of the notification prepared by Ms. Acksen, which spells out specifics for compliance and verification.

A shorter version just said the turbines were out of compliance and had to be shut down at night. Mr. DeTerra said he voted for the longer version because of disappointment in previous communications with the developer.

“Fairhaven Wind knew they were out of compliance in November. They didn’t tell us,” he said. “I feel we need to cross our t’s and dot our i’s.”

He added, “They should have come to us. That’s basically why I voted for the long version. They weren’t up front with us.”

Ms. Acksen quoted the phrase “trust but verify” in seeking the detailed directive.

The notice to Fairhaven Wind calls for it to pay for an acoustical engineer or any monitoring. Ms. Acksen said it is important for the town to use an independent acoustical engineer and not just accept the developer’s recording of sound levels as it tries to come into compliance.

Ms. Acksen said the intent of the requirements is also to require the developer to share testing data, which she said it hasn’t done in the past. The notice calls for time-stamped testing data.

“Suppose they say they are in compliance” and the board has “no way to prove they are,” she said.

The notice also says the Board of Health shall have the right to add a site to the list of addresses where the state Department of Environmental Protection is conducting sound testing. These tests are ongoing; the report of exceedences the DEP released was based on preliminary data.

The Board of Health order says failure to abate the noise nuisance may result in fines up to $1,000 a day.

Town Counsel Thomas Crotty said the health board could use the document as a starting point, but that the developer could come back and negotiate the terms.

Ms. Acksen said she wanted to spell out specifics “because I don’t know how cooperative things will be. I was worried.”

Ms. Jeannine Lopes explained her refusal to sign the formal order saying, “I didn’t vote on the measure in favor of this so I’m not going to sign it.”

Earlier in the meeting, she asked Ms. Acksen if Selectman Robert Espindola had helped write it. Ms. Lopes said it sounded like things the selectmen had proposed at various meetings.

Fairhaven Wind shut the turbines down at night at first after the June 10 Board of Health vote, but resumed running them at night later that week. The developer said they started them up again because they hadn’t received a formal notice to shut them down from 7 p.m. to 7 a.m.

That led to the specially called Board of Health meeting at noon Monday.

Ms. Acksen said the developer’s behavior in turning them back on was disappointing. “They were here. They heard us,” she said of the June 10 vote, which took place at a joint meeting with the Board of Selectmen.

At that meeting, selectmen gave the developer 30 days to come into compliance.

In a letter to Fairhaven Wind LLC dated June 14, selectmen told Fairhaven Wind it was “in default of the lease” dated July 30, 2007, and amended on March 14, 2011.

Selectmen said the developer had violated the lease by exceeding state laws governing how much noise wind turbines can add to normal background sound. They said the state Department of Environmental Protection identified five instances where the turbines exceeded the 10 decibel threshold for increasing noise levels.

Selectmen wrote, “If you fail to cure this default within the time frame allowed by the lease, the town will terminate the lease.”

Later on Monday, Ms. Lopes explained her opposition to the actions taken by the three board members. She said the town should be trying to work with Fairhaven Wind.

“We’re not giving the developer an opportunity to bring them into compliance,” she said. “We’re just punishing them.”

“I didn’t think it was very good dealings on our part,” she said, “which potentially opens up the town to a big lawsuit.”

Ms. Lopes said Town Meeting voted by a two-thirds majority twice in favor of the two industrial wind turbines, which are on town-owned land off Arsene Street.

She said her vote doesn’t mean she doesn’t feel any sympathy for the more than 50 households that have filed complaints. “I’m not saying I don’t feel for people,” she said, “not at all.”

Asked why she was concerned about any role Selectman Espindola played in drafting the longer notification to Fairhaven Wind, Ms. Lopes said it’s because Mr. Espindola was originally involved in a lawsuit trying to block the turbines. She said even though he dropped out of the lawsuit, his earlier involvement shows bias against the turbines from the beginning.

Ms. Lopes said Ms. Acksen has also been involved in Windwise and opposed the turbines from the beginning.

Ms. Acksen said she consulted with several people before drafting the order to shut the turbines down at night.

The board met with Mr. Crotty in executive session Monday after its regular meeting to discuss possible litigation.

The developer told The Standard-Times that he will be seeking compensation for lost income. He said the income is about $1,500 a night from the wind turbines.