The log jam?

The log jam has burst.  In response to the B of H inaction yesterday, the turbine developers made the decision to resume 24/7 operation. 

I will admit that the move to resume 24/7 operations last night was a bit of a surprise. I will also admit so is the statement in the press release from the developer stating that under state regs. no fines can be imposed until the B of H holds a hearing on the mitigation plan. A quick review looks like at this point in time, until that mitigation hearing the somewhat powerful board, is powerless.  

The board should have considered using the word "emergency" on June 10th.

So where does that leave the town?

Well it seems the town is now wedged even tighter between that rock and a hard place.

The facts, as I see them:

Testing under existing regulations showed non-compliance at certain times, under certain conditions.  That is a fact.  There can be  no dispute over that.  

The B of H is charged with the protection of public health and does have broad powers in meeting that charge.  Those are facts.  There can be no dispute.

The powers granted to the B of H are not limitless, and must be exercised pursuant to the law.  Again those are facts and the same cannot be disputed.

Based on the test findings, the B of H did have the authority to taken action.  That is a fact.

Mitigation is a crucial element in the application of the law. That is a fact.

What can be disputed, and is being disputed is whether the board exceeded its broad powers; and, I assume if the matter goes to court, whether the board acted pursuant to law.  What can also be disputed, whether the mitigation plan/agreement/compromise, whatever you want to call it was adequate to meet the law.  We won't know that one however until it is made public.

It may be at some point new regulations are put into place.  It may be at some point those new regulations could in fact be crafted to be applied to our present situation.  It may be at some point in time the scientific community will itself come to a consensus over the competing science.  It may even be at some point there will be a judicial decision over a case that upholds the arguments against the turbines being made in our present situation.

What may be, isn't what is.

Here is a thought for those in favor of the turbines:  If it were possible to put a proposition out to the voters of this town to nullify the contract, with the only financial loss to the town being the present revenue, in my opinion it would pass.  

Here is a thought for those in opposition to the turbines:  If you put a proposition out to the voters of this town to nullify the contract with a financial loss in excess of the present revenue, in my opinion it would fail.

The town isn't going to collapse without the revenue, but neither can this matter be solved simply by giving back the revenue.  Based on what I know, I am sorry but the previous statement is one of fact for both sides, or it would be more proper to say a significant number of people on both sides continue to ignore.

Okay enough on the compromise front.  

There is no more avoiding the issue.  It is unfortunately going to be delayed, but with the resumption of operations on a 24/7 basis, this is now a hot potato in the hands of the B of H and the B of H only, and there is no passing it off to a steering committee at this point.

Assume the developer is correct and essentially nothing can be done legally until the mitigation hearing (and do not comment about any assertions to the contrary without specific reference), come Monday night I am guessing there will be that hearing.  

I am guessing it will be a very public hearing.  I am guessing further that the deliberations will be public.  I am guessing again that the vote will be public.  I am further guessing that everyone will have done their homework on procedure, the law, the regulations.

I suppose I should use "hope" rather than "guess".  I have made those same guesses in the past and have guessed wrong.

To wedge us even tighter between a rock and a hard place was a point made after the meeting yesterday, raised during the press conference (for lack of a better description) yesterday.  It is a point that has been raised by several people during discussions over the past several weeks.

In a nutshell, in another area of town, the B of H seems to be taking an entirely different position to responding to very similar complaints about a condition that residents in that area say is affecting their health.

The B of H position, is essentially stated in the minutes of the May 22, 2013 meeting for the board by acting chair Barbara Acksen (Peter DeTerra having removed himself from the matter for an apparent conflict).  the minutes provide as follows:

Ms. Acksen encouraged the group to continue to make their complaints. The Board office is compiling the complaints and sharing all the complaints with the DEP, specifically the Compliance and Enforcement Division. The Board instructed the health agent to seek a collaborative meeting with the DEP C&E Division as soon as possible to discuss what can be done and the mechanisms to abate the complaints.

I bring this up not because of blog factor for that particular issue and stance, although that at some point and time will definitely become blog worthy.  It is brought up because if you used the term "residential nuisance" in place of the the underlying "operations" for either issue, what is the difference?

Both "operations" have a legal right to be there. We aren't taking about any violation of the legal standards with that statement.  We are talking about legal right to operate absent a violation of the legal standards.  Believe it or not, complaints for both sites have existed for the same period of time, in while not 100% certain of my memory, the non-turbine site has been generating complaints for a longer period of time.

I am not aware of discussions having occurred as to what can be done and the mechanisms to abate the complaints for the non-turbine site, but there is ample public record that discussions have occurred as to what can be done and the mechanisms to abate complaints as to the turbine site.

The B of H clearly decided the DEP position on the turbines was wrong.  Okay, fine.  That is the Boards right.  By a 2 to 1 vote the "nuisance" declaration was made.  Explain to me the difference between that action and non-action on  the other matter.

I am sure some one out there can explain the difference to us all.

But I truly digress.  I have absolutely no illusions as to what will be done on the other matter.  Besides expecting the B of H to handle such issues simultaneously is I think unrealistic.

So getting back to the place between a rock and a hard place:

We have a B of H with three members apparently unable or willing to reach a compromise.  I would guess it is a combination of two unwilling and one unable.

Until I see the mitigation plan presented, formally presented, I have to reserve judgment on it.  The simple fact of the matter is no matter what it is, any perceived advantage now clearly rest with the developers.  The B of H could salvage something out of the hearing, but I doubt it will have even have any consensus to do so. 

At that point, it will be off to court if there is a denial of the mitigation plan, and at that time the clock will start to really tick.

  

Why the advantage to the developer.  The procedure and findings at which the order was issued under on June 10, 2013.  Also, again guessing, the debacle that the hearing on the plan will turn out to be, and again the procedure and findings that will happen for that hearing.  

 

I am sadly content in one aspect though.  Things have started to move along again.