At the October 22, 2013 Allegany Town Board meeting, Supervisor John Hare announced that Everpower is pulling the plug on its wind farm proposal--for now. Then it had hopes of reversing Judge Nenno's stinging ruling against the company's complaint that the Town had treated it arbitrarily, by requesting a supplement to its environmental impact study to address new information about noise. Those hopes were dashed on March 21, 2014, when a Rochester appeals court agreed with Judge Nenno, who said Everpower's Everpower's "contumacious conduct" has been its own undoing.
The decision rejects Everpower's assertion that the Town Planning Board and CCCC, which filed a lawsuit of its own in 2011, were to blame for its inability to get the project off the ground. Instead, the appeals court finds that Everpower "engaged in sustained efforts to delay dismissal of CCCC’s appeal," even after CCCC filed papers seeking dismissal. The real reason for Everpower's delaying tactics, the court finds, was "to find out whether Congress was going to extend the PTC," or Production Tax Credit, one of the largest of several subsidies on which the project hinged. The PTC expired December 31, 2013.
THE EVERPOWER PROPOSAL
About 60 parcels are leased from private property owners to make up the project site. A list of property owners leasing to Everpower is available here. (2.5 MB)
Everpower says blasting is not planned. However, if utimately necessary blasting would occur in close proximity to about 100 inactive and active oil and gas wells within the project area. An aerial photo showing these wells is available here. (high-res file, 53 MB)
As proposed, wind turbines will be visible from virtually every unobstructed view in the City of Olean, Village of Allegany, St. Bonaventure University (including the view of Merton's Heart), Knapps Creek, Rock City and the Allegeny River. Especially at night, the pulsating noise of industrial turbines is likely to be heard a mile or more away. Pulsating FAA warning lights would be visible from much greater distances.
The local law provides different protections for "participants" in the Everpower project compared to "non-participants." Those who sign agreements with Everpower are participants and waive setbacks, noise limits and other protections and agree not to disclose the terms of the agreement. The local law requires such agreements to be recorded with the county clerk, making the terms binding all subsequent owners. A future purchaser of participating property will therefore not get the benefit of local noise limits.
The Allegany zoning code restricts noise from wind turbines to no more than three decibels above the nighttime ambient sound level within 2,500 of the turbine site, or at other sensitive receptors identified by the Planning Board. However, the Planning Board and the Town Board decided that those living just outside the 2500 perimeter are protected by no limits, so the Planning Board imposed a 40 decibel limit for those homes.
For purposes of meeting the requirement, decibels are "A-weighted" (dbA), to reflect sound frequencies most easily heard by people. Measuring sound in A-weighted decibels underestimates low-frequency "rumbling" and "thumping" noises.
Because the decibel scale is logarithmic, to understand decibel increases it is important to know every 10 decibels represents a doubling of the sound level, and DEC guidelines state that increases of 20 decibels have a "very objectionable to intolerable" impact. Thus, an increase from 60 to 70 decibels doubles the noise, but so does an increase from 18 (the sound level at night before turbines start operating) to 28. An increase from 18 to 40 exceeds what DEC considers intolerable.
EVERPOWER'S PROGRESS IN ALLEGANY
On August 28, 2007 the Allegany Town Board enacted a local law regulating industrial wind farms and non-commercial small wind turbines. The local law seeks to achieve “a minimal impact on adjacent properties and to protect the health, safety and welfare of residents of the Town.” On February 24, 2011, the board modified the local law to require Everpower's noise assessment comply with "ANSI standards or comparable procedures."
Everpower's project proposal was approved on May 16, 2011 by an Allegany Planning Board vote of 3-2. On August 29, 2011 by a 4-1 vote the Town Board approved rezoning the project area to allow the project.
The May 16, 2011 approval by the Allegany Planning Board includes approval of a truck route from Carrollton on the Nine-Mile Rd., where Everpower would load gravel, west to NYS Route 219, to Limestone and Nichols Run Rd. However, this route requires approval by Carrollton. Everpower also has yet to obtain approval from Carrollton for a road use agreement. The City of Olean has refused to allow 80+ ton trucks (at least 8,500 trips in a 10-month construction period) through the downtown area.
Judge Nenno dismissed CCCC's 2011 lawsuit on procedural grounds. Accordingly CCCC's claims were never decided. These include our claim that the Town never took into account impacts on Ted Gordon, who lives within the project area, and failed to receive any assessment of low frequency and impulsive noise that would be generated by the project, as required by the zoning code. The Planning Board recognized those claims late, in October 2012, when it denied Everpower's second request for a one-year extension of its zoning permit and insisted instead that Everpower prepare a supplement to its environmental impact study addressing the effect larger turbines would have on the noise at Ted Gordon's home. The Board's request and supporting documentation is posted here.
The next month the company sued the Allegany Planning Board.
Comments to the Town Board summarizing outstanding issues were submitted on August 25, 2011. These and other CCCC comments to the Town are posted here, including comments on Everpower's request to extend its permit beyond the initial 12 months approved.
The application and impact study is available here, as well as the Allegany Public Library and Town Hall. The Planning Board's responses to previous public comments on a draft impact study are found in FEIS Appendix N.
The impact study is written in plain language, so area residents can readily see whether the study accurately and fully addresses effects on local resources, including decline in property values, degradation of the skyline, intrusive truck traffic (thousands of trips through Olean and Allegany would be required), bird and bat kills, and whether wind power provides any permanent local jobs or any other public benefits, such as reliable electricity.
ADVERSE COMMENTS ON PROJECT NOISE BY DEC AND CCCC
CCCC submitted written comments on the Everpower proposal in February and December, 2009, February 23 and May 3, 2010, January 7, May 11 and May 26, 2011. These comments focused primarily on noise effects of the project. Subsequently, the board directed its environmental consultant Conestoga-Rovers Associates (CRA) to conduct a study of background sound levels at four residential locations outside the project area. That study was submitted on September 27, 2010 and shows sound levels as low as 18 dBA at night.
Both CRA and the special legal counsel the Town retained to guide its environmental review of the project work for wind far developers.
DEC commented that, under NYSDEC guidelines, the noise the project would make, (pp. 10-11), especially at night should be evaluated more conservatively than Everpower has done. Sources that make pulsating noise like wind turbines should add 5 decibels to what is modeled, and sources that operate at night should add another 10 decibels. If DEC's recommendations were followed (Everpower rejected them), at least 10 decibels would be added to Everpower's model, making the 50 dBA contour line on the company's noise map a more accurate predictor of who will get 40 decibels at night.
We consider 40 decibels to be unacceptable. Even during the day, when background sound can be as high as 40 decibels, people will hear wind turbines because the noise they make is unlike natural background sounds. It often includes low-frequency thumping noises, beating in time with the spin of the blades. Measuring noise impacts by decibel levels alone does not take this into account.
CCCC's position is that Everpower's methods and conclusions depart from established professional standards in acoustics and are designed to achieve a result that complies (just barely) with Allegany's rules. As has happened at several operating wind projects, Everpower's approach seriously underpredicts noise impacts at the risk of the ability to sleep undisturbed for the people in the neighboring valleys, and their long term health.
As both CCCC and DEC noted in their comments on the draft environmental impact study, it is common especially night for ground-level air to be calm or still while elevated air at turbine height is strong enough to operate the turbines. Under those conditions, a very quiet ground-level environment is disturbed by pulsating noisy wind turbines.
A copy of the local law, the Town's host community agreement with Everpower, important parts of the Everpower application, and several public comments submitted to the Town are available here.
