BOS to withdraw request to reconsider

In a surprising turn of events, the Devens Enterprise Commission (DEC) voted unanimously Tuesday evening to reopen public discussion on the protocol that it had approved just last month to determine whether the Devens Evergreen Solar plant is in compliance with DEC noise regulations. The move came after Harvard town officials and their spokesperson, attorney Ruth Silman, suggested the Harvard Board of Selectmen (BOS) would be willing to withdraw their formal “request for reconsideration,” if a more open and thorough discussion of protocol particulars, which included unfettered input from town residents, could be achieved without it.

In their Dec. 22, 2009 letter to the DEC, Harvard selectmen had argued that the commissioners had exceeded their authority by:

• Approving the protocol without adequate public input and debate from Harvard residents and their consultants,
• Failing to properly consider the health effects of factory and other Devens din on people and animals,
• Using data samples that were too small
• Granting Evergreen latitude in its operations—without appropriate waivers—that went beyond what is permitted by DEC regulations and state law.

But the heart of the town’s argument was a request for fairness, said Silman: given the months of noise they had endured and the degree to which they had informed themselves on the issues, Harvard residents and their own consultants deserved a greater chance to be heard.

“In the view of the town of Harvard,” Silman said, “the information that was put before you was not full and complete,” because although they had been invited to submit written comments to the DEC, Evergreen’s Harvard neighbors had never had the chance to make their points about the final draft protocol before the commissioners in a public debate. This amounted to changing the rules at the 11th hour, said Silman. Once it had started down a path of public meetings and hearings, she said, the DEC should have continued.

The process by which the DEC arrived at its protocols “was flawed, and has been flawed from the beginning,” said BOS Chairman Ricci. “We wouldn’t be here tonight with my neighbors suffering, their animals suffering, people’s property values going down, had the DEC done a proper job.” All Harvard is asking for, he said, “is let’s get it right this time.”

In documents distributed by the DEC commissioners prior to the Tuesday meeting, DEC staff members, including administrator Peter Lowitt, planner Neal Angus and counsel Edith Netter, presented arguments that DEC had acted within its authority, citing state and DEC regulations as well as court precedents to make their points. And at several points the commission seemed ready to vote against reconsideration. But unlike prior recent meetings, DEC Chairman Bill Marshall allowed discussion to continue for more than three hours, during which Harvard residents and other attendees were given ample time to make their points. Several spoke movingly of the health and other effects of the unremitting noise they had lived with prior to the mitigation steps taken by Evergreen. At times the discussion veered into debate on specific aspects of the protocol, which was not on the table but nevertheless demonstrated a lack of consensus, even among the commissioners, on such matters as the ongoing dispute over the location of a monitor at Dunroven Farm and the treatment of low-frequency noise.

The turning point came late in the evening when Harvard’s new alternate DEC member, Victor Normand, observed that the DEC had the power to reopen the hearing on the Evergreen protocol and should consider doing so, while postponing a vote on reconsideration.

It was then that Silman proposed going a step further. “Within the [DEC’s] rules and the regulations,” she said, “there was really only one choice for the town, which is why the request for reconsideration was filed. I would imagine that if the DEC were to revisit the protocol, the selectmen would likely withdraw their request, and then you don’t have to deal with the issue of the legal standard and was the authority exceeded. A good faith effort of some process could get the parties a long way.”

“I’m hesitant to get into another dog-and-pony show where we have four experts throwing data at us, and ‘he said and she said, and my mother and your mother,’” said commissioner John Oelfke. “I would like to have this motion,” he said, “but have it amended in such a way that 30 days from now all information has been provided to our consultants ahead of time and our consultants get a chance to evaluate it. I want the report to be generated by our consultants.”

Marshall agreed, but, he said, “I want to make sure there is a public hearing” where residents have a chance to make their points before the commissioners.”

The final outcome? The public, including Evergreen and third party consultants, will have until Feb. 9 to comment on the current Evergreen protocol. DEC’s consultants, Modeling Specialities and Tech Environmental, will have until Feb. 16 to respond. Their comments will be distributed to the public and a final open public hearing will be held Feb. 23, with the possibility it can be continued if necessary.