Published on November 2, 2011

Judge rules blasting debris should not stop project

A protester whose pseudonym is Wolverine holds a piece of tire that was thrown onto Don and Shirley Nelson’s property by a Friday blast at the site of Green Mountain Power’s industrial wind project on Lowell Mountain. The flying debris triggered legal demands that work on the project be halted. Photo by Chris BraithwaiteLOWELL — An explosion that threw debris onto the property of Don and Shirley Nelson did not provide sufficient grounds to order Green Mountain Power to cease its blasting operations at the site of its industrial wind project on Lowell Mountain, Judge Martin Maley ruled Tuesday.

The Friday afternoon blast hurled pieces of rock and a substantial piece of recycled tire over the heads of protesters who had been warned to take cover behind trees near their campsite on the Nelsons’ property.

The chunk of tire, part of a heavy mat used to dampen the explosion, landed beside the campfire at the protesters’ field kitchen. Two small, jagged chunks of rock were found in the woods nearby.

While protesters were certain that the two rocks were blast debris, Dorothy Schnure, a spokesman for Green Mountain Power (GMP), disagreed. “Our observers did not see or hear any flyrock go onto the Nelson property,” Ms. Schnure said.

Arguing that GMP had no right to trespass on the Nelsons’ property by hurling such debris, lawyers for the project’s opponents asked both Superior Court Judge Martin Maley and the state Public Service Board (PSB) to order a halt to the blasting.

“If there were any questions before Friday about the likelihood that (GMP’s) blasting would violate its statutory and Certificate of Public Good conditions and duties to contain the blasting on its site, that doubt is now gone,” said the Nelsons’ lawyer, Scott McGee, in a motion for a temporary restraining order filed Monday in the civil division of Superior Court.

Mr. McGee also renewed the Nelsons’ request that the judge dissolve a temporary restraining order he issued against the protesters on October 14.

The Nelsons, Mr. McGee argued, “have the right to occupy their own land for lawful purposes, including using their land to exercise their first amendment rights to protest plaintiff’s turbine project.”

In a parallel legal action, attorney Jared Margolis on Tuesday asked the Public Service Board (PSB) for “an emergency stay of blasting” at the project.

Mr. Margolis, who has represented the towns of Albany and Craftsbury throughout the permit process before the PSB, told the board he is also representing the Nelsons.

Neither the blasting plan approved by the PSB nor state regulations permit flyrock to leave GMP’s property, Mr. Margolis argued.

“These regulations further prevent GMP from using the Nelsons’ property as a safety zone for its blasting activities, since the Nelsons have not provided a writtenOn the advice of GMP’s blasting contractor, protesters take shelter behind trees while waiting for Friday’s blast. Photos by Chris Braithwaite waiver to the blasting operation,” Mr. Margolis said.

The protesters’ campsite, established in late September, is well within a 1,000-foot safety zone that GMP told Judge Maley it needed in order to blast safely. In his October 14 order, the judge ordered the Nelsons and their guests to stay outside that zone while blasting is in progress.

The protesters have consistently refused to obey GMP’s requests that they leave the area.

In what has become something of ritual on the steep mountainside, GMP spokesman Dave Coriell read the judge’s order to two protesters, who identified themselves as Kate and Wolverine, in the field kitchen Friday afternoon. The protesters turned their backs on Mr. Coriell, though the conversation was polite on both sides.

On other days, Maine Drilling and Blasting had gone ahead with blasts after that warning was issued. In court on Moments after the explosion, the woods were full of dust and smoke.October 20, an engineer with the company testified that, because the protesters were present, the explosions had been reduced in size and more heavily matted.

But on Friday protesters got a warning that was clearly more than a formality. A worker wearing a Maine Drilling and Blasting hardhat that identified him only as Mark approached.

“At least get behind a tree” Mark urged the demonstrators. “I’m only asking for your own safety.” It should be a big tree, he added.

There was a delay while another GMP worker, John Stamatov, set out to find two documentary filmmakers who, he was told, had wandered north of the campsite through the woods.

When they returned, Mark prepared to detonate the explosive charge that had been set along the crane path to the north of the campsite. Most protesters Official signs designed to warn off protesters, and one protester’s comment on the situation, near one of the campers’ tents on Lowell Mountain. The view is to the east.remained behind trees while the five-minute and one-minute warning blasts sounded.

The explosion sent debris rattling through the trees over their heads and filled the woods with acrid smoke and dust. The piece of tire landed beside the kitchen with a dull thud.

A witness, Fred Scholz, said in an affidavit that “very close on the heels of the blast we could hear and feel particles moving through the trees. They were more than dust, but smaller than pea size. I felt some of the particles, which I will refer to as blast debris, in my hair. It sounded like rain as it came through the tree branches.”

His affidavit, and another by his wife, Margot Kempers, were filed with the motions to both Superior Court and the PSB.

Ms. Kempers said she saw and heard the chunk of tire “bounce to the ground with a distinct thud.”

“I also heard something land behind me with a thud,” she said. “The bulk of the debris was very fine particles, but I also found several larger chunks of freshly chipped rocks that were lying on top of the leaves and appeared very different from their surroundings.”

Mr. Scholz said he and his wife are part-time residents of Albany and Cambridge, Massachusetts. He said he is a semi-retired owner of a cleaning business, and Ms. Kempers is a retired college professor.

The couple arrived at the campsite minutes before the blast, after Mr. Coriell read the restraining order. “We never saw an order of the court, and no person read or warned us of the contents of an order of the court,” Mr. Scholz said.

The affidavits were filed along with Mr. McGee’s motion for a temporary restraining order against GMP on Monday.

Judge Maley denied the motion on Tuesday.

The Nelsons, Judge Maley ruled, “have not shown that more particles are likely to fall on their property.”

David Coriell of GMP reads Judge Martin Maley’s preliminary injunction to a protester who used the name Wolverine.Moreover, he added, they “have not shown the court that money damages cannot provide adequate compensation in the event that GMP is trespassing….”

In addition, the judge ruled, the Nelsons had not shown that they are likely to win a claim of trespass against GMP. A key question is GMP’s intent, he said.

The Nelsons, he ruled, “have not alleged that (GMP) intended for particles to enter (the Nelsons’) land or that (GMP) knew it was substantially certain that particles would enter (the Nelson’s) land.”

Also on Tuesday, Judge Maley confirmed his order that protesters move 1,000 feet away from the blasting; and denied the restraining order the Nelsons sought on the grounds that they own some of the land GMP has clearcut, and is blasting.

This small chunk of rock, found lying atop the leafy forest floor on the Nelsons’ property after Friday’s blast, appears to be a piece of flyrock from the explosion.The flag of the Green Mountain Boys flew above the protesters’ campsite for some time.

One of several small streams that wind down the east side of Lowell Mountain, directly below the wind project, tumbles over a falls.