Published on March 23, 2005

MONTPELIER — As the evidence comes in, it is becoming increasingly clear that like nearly everyone else in the state, the Public Service Board (PSB) is going to have to weigh the unknowns before reaching a decision on whether wind towers belong on East Mountain.

That became evident about midway through last week’s hearing when a question was put to Fish and Wildlife biologist John Austin at the end of a long day of testimony.

Hearing officer Kurt Janson wanted to know: “With respect to potential mortality for a bird, especially migratory birds, does the agency or you have a recommendation on what the standard of test should be for determining what an undue adverse impact would be?”

It was a question that did not lend itself to a simple, direct answer.

“I believe it’s the view of the agency and the department that we would rather come up with a way of looking at the effects of this mortality to populations of migrating birds, or species of migrating birds, on something at a smaller scale than the scales that have been suggested so far, continent wide or the boreal region wide,” replied Mr. Austin.

“I think in terms of the state of Vermont’s interests in conservation of bird resources and the public interests that are invested in those, that the more practical perspective should be applied," he continued.

“But I’m not sure what that is, quite honestly. And I think that we need some other experts to help inform us in that regard.”

Birds and the methodology used to count them were at the center of testimony that ran through the end of the week. The hearing is scheduled to resume March 28, but no one is ready to speculate at this point when a decision will be handed down on whether four state-of-the-art, 329-foot towers will receive a certificate of public good.

At the end of testimony Thursday, David Rapaport, vice-president of East Haven Windfarm, said that in the event a certificate is awarded to the Montpelier-based company, construction would not likely get under way until 2006.

“Just think of what it would be if we were proposing a nuclear power plant,” he said.

Part of the fight Thursday was over whether more than one construction season would be necessary to prevent an adverse impact on the breeding habits of the Bicknell thrush, an exotic, endangered songbird.

Windfarm’s lead attorney, John Kassel, went back and forth with Chris Rimmer, director of conservation biology with the Vermont Institute of Natural Sciences, on how construction at the site might affect the bird. Mr. Rimmer has been in the news recently as part of the scientific team that discovered that mercury deposits at high elevations are showing up in the Bicknell thrush.

The answers he gave on how heavy equipment would affect nesting birds were hardly conclusive, much to the annoyance of the attorney.

“So some birds are more sensitive than others,” he concluded at one point.

Mr. Kassel did manage to put on the record that one of the sources of mercury deposits at high elevations, like Mount Mansfield, is the combustion of fossil fuels. Throughout the hearing, petitioners have repeatedly pointed out that wind power will help reduce emissions and global warming.

At some point in his testimony, Mr. Austin was asked if the department had considered the impact of global warming and acid rain on wildlife habitat, and what it means in the context of the East Mountain project.

The biologist agreed that while such issues are of enormous importance, they do “not diminish our concern for small projects at a local level.”

Testimony so far has been highly technical, consisting at times of experts almost as rare as the subjects under discussion.

Are you a theoretical physicist or an experimental physicist? asked the petitioners’ attorney, Andy Raubvogel, when Kingdom Common’s witness, Allen Matilsky, an astro-physicist from Rutgers University, took the stand.

“The theoreticals say I’m an experimentalist, and the experimentalists say I’m a theoretical,” came the reply.

Mr. Matilsky was called by opponents of the wind farm to provide testimony that ice throws from the turbine’s blades — 120 feet in length — would travel twice as far as estimates provided by the petitioners. But while the distance increased, so did the odds that such a throw would actually hit anyone. About one in 22 million, according to a formula provided by the professor.

“No question that ice throws will occur,” he said, sloughing off insinuations that his own fight against wind towers in upstate New York might be coloring his testimony. “The laws of physics don’t change.”

Estimates from Windfarm’s expert indicate that ice will form on the blades 25 days a year. Marc LeBlanc, a mechanical engineer, testified that by using ice detectors and heating devices, a system could be added to the turbines that would eliminate the ice throw risk.

Still, the hearing officer was curious as to how much ice would form on the blades in 25 days. A statistical model of 10,000 ice throws didn’t satisfy him.

“What is really possible that might happen up there?” he asked.

Mr. LeBlanc was unable to provide an answer except to note: “There isn’t any reported cases, as far as I know, of someone being struck by ice.”

Earlier in his testimony, Mr. Austin, the state’s wildlife biologist who is considered an expert on bears as well as birds, offered a characterization on the East Mountain debate. “There’s so much information on this project, it’s a little overwhelming,” he said.

As the former site of a U.S. radar base during the Cold War, the East Mountain summit has historical as well as ecological values, which are not always compatible. The state’s Division for Historic Preservation wants one of the old buildings from the base rehabilitated, with interpretative panels depicting what went on there roughly 50 years ago.

Mr. Austin testified that while the limited scope of the wind tower project does not threaten black bear habitat, “the department’s greatest concern” is the potential for the increased presence of human beings — that is to say, tourists.

He went on to note that the remote, rugged setting is “the greatest value this area possesses.”

So far, the most contentious issue to surface during five days of hearings is the number of migratory birds that fly over East Mountain. The number is important to all the parties because it serves as a guide as to how many birds will be killed by the turbines. The national average of bird mortality from wind farms is 2.3 birds per year, per turbine.

Essentially, the clash at East Mountain is over the high bird count that was turned in by DeTect, a Florida firm that specializes in avian surveys using radar technology. Carried out in the late fall of 2004, the study presented a bird count that vastly exceeds counts in ten other studies.

DeTect was hired to do the study by three separate parties in the hearing: the Agency of Natural Resources (ANR); the Nature Conservancy (TNC); and the Kingdom Common Group (KCG).

Attorney Raubvogel suggested that ANR, as a state agency, may have acted inappropriately by joining a study with two of the project’s opponents.

“Did the arrangement give you any pause as to how it may be perceived?” he said, raising questions over the agency’s neutrality.

“I assure you it was completely innocent,” replied Mr. Austin, noting that ANR did not have the money to fund the study alone. Besides, he added, all three had a similar interest in acquiring the information.

The agency, according to Mr. Austin, wants to continue avian studies during the construction phase of the project. It is also recommending a three-year post-construction study.

“The agency is unclear over the impact on migrating birds,” he noted at one point in his testimony.

Citing bird counts at ten other wind farm sites that were significantly lower than those recorded by DeTect, attorney Raubvogel asked if this new evidence would cause the biologist to change his position.

“Not at this stage in the game,” replied Mr. Austin. “No.”

Mr. Austin later told the hearing officer that the impact of the new wind technology on birds is an emerging issue, and a daunting task given the competing opinions among experts.

“All we want is an opportunity to characterize the risk,” he said.

In the eyes of the developers, the risk projected by DeTect was significantly flawed. Not only was it wrong, offered attorney Kassel, but it also was the result of sloppy methodology from a company under the gun from legal and financial problems.

And on Thursday afternoon and into Friday morning, the attorney — who used to head ANR — went tooth and nail after one of the company’s founders and the man who supervised DeTect’s survey on East Mountain.

As a teenager in Britain, Adam Kelly was a falconer who won a reputation for his ability to use his falcons to keep birds off the runaway at a U.S. Air Force base. On the stand, he told how his company had made a technical improvement in tracking birds with radar. An improvement, he noted, that enabled the company to find and see more birds. If other studies had used similar technology, he added, the results very likely would have been the same.

“Birds are very much like a stealth aircraft,” he said earlier in his testimony. Insects he characterized as “aerial plankton.”

The initial cost of the study Mr. Kelly’s company conducted at East Mountain was estimated at $24,300. By the time he was through preparing for and participating in the hearing, the cost had just about doubled, according to Warren Coleman, general counsel for ANR, in an interview this week.

In the hearing room, Mr. Kassel began by going after the witness’s credibility, pointing out errors and inaccuracies on the company’s web page. He also flaunted Mr. Kelly’s lack of academic credentials, and suggested the witness with the notably English accent was something less than he claimed to be.

“Your statement that I am not an ornithologist is well wide of the mark,” Mr. Kelly retorted during one exchange.

The most damaging evidence offered by Mr. Kassel was that at the time of the East Mountain study, Mr. Kelly and his partner were being sued for the taking of “intellectual property” belonging to the company both had worked for, and using it as software in their own radar detecting work. A court injunction in the case forced DeTect to go to “off-the-shelf” software at just about the time it was signing a contract for the East Mountain study with Vermont’s Fish and Wildlife Department.

“Did you disclose to Fish and Wildlife that this system was new to you?” asked Mr. Kassel. “That you had never used it for another client?”

The attorney also questioned why once DeTect arrived at East Haven, it did not run both vertical and horizontal radar programs as discussed with the clients. Mr. Kassel suggested that Mr. Kelly chose not to do the horizontal study as a cost cutting measure.

“That is untrue,” replied Mr. Kelly, who noted that the new software had been tested twice in Panama City before being brought to East Mountain.

Against claims that he was unfamiliar with the mountain’s terrain, Mr. Kelly testified that a “fairly substantial part” of his work tracking the passage rates of birds had occurred in the Northeast.

Mr. Kassel, however, continued to insist that a vertical study alone was not as reliable as a study conducted by vertical and horizontal radar.

Testimony on wildlife issues is expected to continue when the hearings resume next week.

So far, no testimony has been offered on the cumulative effect of the project. However Mr. Austin, along with other biologists, made it clear in pre-filed testimony that the department’s concerns over wildlife would intensify if the project’s size expands beyond four towers.

That concern prompted Kingdom Commons attorney Daniel Hershenson to ask Mr. Austin what is being called, in these hearings, a hypothetical.

“In several places you testified that it’s only because this is a four-turbine project that you would allow this to occur without further evaluation or concern. And I’m curious to know as to why you or the agency would take a position that the size of the project, as opposed to the project’s actual impact, would be of significance?”

Mr. Austin allowed that “it’s just a practical point of view.”

But Mr. Hershenson refused to let the matter rest there. He noted that testimony had already suggested that the project would have an impact on at least four species of special concern, including the black-backed woodpecker and yellow-nosed vole.

Now he wanted to know, “is it the size of the mountain or the size of the impact, or is it the size of the project that’s really the issue?”