Published on December 22, 2009

BERLIN — Attorneys raised 26 objections Thursday in the Environment Court trial now underway, challenging the impact the Sheffield Wind project will have on the environment.  And that was only in the morning.

Controversy has doggedly nipped at the project’s heels every stage of the way, and nothing has changed as its start-up date comes down to the wire.

First Wind would like to get construction underway for its 16-turbine wind farm that already has won approval from the state’s Public Service Board.  The first step is to log the site, whose size is also in dispute — ranging from 60.5 acres to 79.5, depending on what side is doing the talking.

In its effort to leave no stone unturned, Ridge Protectors, Inc., (RPI) is trying to keep the project from going forward, even to the point of arguing that more ground will be disturbed than was approved in the company’s storm water discharge permit.  Issued by the Agency of Natural Resources (ANR), the permit’s validity is the centerpiece of a trial that, with interruptions, could extend into the new year.

According to trial testimony, First Wind would like to cut and clear the site during the winter, a job that is expected to take two to four weeks.  But no one knows if the ground will still be frozen when or if the logging job commences.

Presently, the dispute over the stormwater permit has gained momentum and breadth over two other issues that keep bobbing to the surface.  One is a fight over the status of a  second stormwater plan the company submitted as the trial was ready to begin — and after its permit from ANR had been obtained.  The other, which highlights the growing acrimony between the Ridge Protectors and ANR — the state’s regulatory agency for all matters environmental — deals with an expert witness who allegedly is being kept off the stand by his employer, the state of New York.

An aquatic biologist with the New York Department of Environmental Conservation (DEC), J. Douglas Sheppard was lined up to testify as a witness for RPI.  With 35 years of experience as a fish biologist, his testimony was expected to back up and further the case made by Paul Brouha, one of RPI’s founders.  A retired fish biologist from Sutton, Mr. Brouha testified earlier in the trial that a year’s sampling of the five streams in the project’s area would be needed before construction could commence.

In prefiled testimony submitted to the parties before the trial got underway this month, Mr.  Sheppard agreed with Mr. Brouha when he said the five streams needed to be sampled repeatedly for one year to establish a benchmark for water quality before construction started.  And like Mr. Brouha, he also testified that First Wind erred by not sampling the trout found in the streams, which are all high elevation, watershed streams.

“Once the project construction has begun, there will be no way of knowing its impact on the adult trout and its various life stages unless survey and samplings have been done during critical times of the years before construction,” Mr. Sheppard said in his prefiled testimony.

On Thursday, December 17, that testimony became moot when it appeared he would not be allowed to take the stand.  Judge Merideth Wright ruled that the prefiled testimony could not be entered into evidence if Mr. Sheppard failed to appear at the trial, where his testimony could be cross examined.

As they have done since the trial began, ANR attorney Judith Dillon and Ridge Protectors attorney Stephanie Kaplan traded barbs as to the reasons for his absence.

Ms. Kaplan has insisted from the beginning that ANR has leaned on its sister agency in New York to prevent Mr. Sheppard from testifying.  In a brief interview this week, she again charged that ANR had squelched Mr. Sheppard’s testimony because it exposed weaknesses in the agency’s permitting process.

Mr. Sheppard, who noted in his prefiled testimony that he was not being paid to testify as an expert, argued that ANR had dropped the ball in the present case.

“I believe that the way the states implement the stormwater permitting programs has been deficient by not taking into sufficient account the negative impacts from large, high elevation construction projects on water quality and aquatic biota,” he said in written testimony.

Ms. Dillon has not returned repeated calls for comment on the assertions by RPI that “an ANR attorney contacted Mr. Sheppard’s employer and complained about his testimony.”

In court, counselor Dillon has repeatedly denied any meddling.  “ANR has not been attempting to keep Mr. Sheppard from testifying,” she said.  “What they (New York) do with that is their call, not ours.”

According to a motion introduced by RPI, a New York state ethics attorney had e-mailed Mr. Sheppard, telling him she had “determined that it is not appropriate for you to testify at this proceeding because it is in conflict with your position at DEC.”

Mr. Sheppard’s appearance still remains a possibility, but he may have suspected that trouble was on the horizon when he his gave his prefiled testimony.  At that time he noted that he was “not testifying on behalf of the NY State or the NY DEC, but am doing it on my own.”

The second issue that keeps popping up in the trial is a second plan submitted by First Wind to show how it plans to control turbidity and protect the waters of the five streams within the project’s boundaries.  A fight has erupted over its significance.

The Ridge Protectors view it as a revised or amended plan, and through argument contend that it confirms weaknesses identified in the first plan.  First Wind, on the other hand, asserts that the second plan only provides more graphic detail to clarify what is contained in the first plan.  Both the company and ANR say the second plan is a clarification of the first, and last week First Wind attorney Ron Shems asked the court to consider it only as a demonstrative exhibit.

That assertion has brought cries of foul from the Ridge Protectors.  Ms. Kaplan characterized changes in the second plan as substantive, and accused the wind developers of making changes after deposing an expert who had been paid by RPI to review the plan.

“Mr. Torizzo spent many hours on what should have been their work,” she complained at one point.

As a expert in stormwater management systems, Andres Torizzo testified early in the trial that he had spent 40 hours reviewing the first plan, and that it would take him an additional 30 hours to go over the second one.  It was a bitter pill for RPI to swallow.  Strategically, it complicated their criticism of the original plan, while causing at least one member of the group who has been attending the trial to wince as she wondered who would pay for the extra 30 hours of review.

During the noon recess on Wednesday, December 16, Mr. Brouha said in passing that RPI has spent nearly three-quarters of a million dollars fighting the project.  And the meter is still ticking.

“The environment is too important to be left to ANR, and you can quote me on that,” he said.

A ruling is still pending on how the plans will stack up as evidence.  Judge Wright said Thursday, December 17, that she would wait until testimony is finished.

The testimony over the plans sounds much like a duel between experts.  Jeff Nelson, whose environmental and engineering company became involved in the project in 2006, testified that he sat in on the depositions with Mr. Torizzo, and afterwards made recommendations that changes to the plan should be made to avoid any misunderstandings that might arise during construction.  Nothing had changed in the plan’s intent, he said.

At the Sheffield site, Mr. Nelson directed a team of experts in related field to take samples of macroinvertebrates — bugs and insects — from the five streams to serve as indicators of their waters.  He said the streams were too small to do a trout survey, and that the bugs and insects were a more sensitive indicator as to the health of the streams. 

As an example, he testified that 42 species of macroinvertebrates were found in Calendar Brook.  If an impact occurred over the winter, he said, the density or richness of the stream’s macroinvertebrate community would be adversely affected.  And if that were to happen, he added, there would be a high number of worms in the impaired waters.

A hydrologist who said he has been assessing water quality for 25 years in Vermont, Mr. Nelson said the project has an early warning system to protect water quality during construction.  An on-site plan coordinator will have a series of steps to take any time a run-off occurs.  First a physical inspection to inspect the effect — water slightly cloudy but not muddy — meets the state’s standards and is acceptable, he said.  Secondly, if the water is cloudy, the coordinator will implement protective controls, known as best management practices (BMPs).  Finally, if water exceeds certain values for turbidity, the coordinator can stop work until turbidity is brought down to acceptable standards.

“Is there a permit requirement that construction should be halted?” asked attorney Kaplan, if the sample exceeds the benchmarks for turbidity.

“Not exactly,” Mr. Nelson replied.

“Would you accept a permit requirement to stop work?” she continued, if it did.

“I don’t believe I have the authority on behalf of First Wind to make that determination,” he said.

When questioned again by First Wind attorney Shems, Mr. Nelson testified that there are two types of BMPs:  structural and non-structural.  Included in the non-structural ones is the decision to stop work.

When pushed by attorney Kaplan if such an assumption is standard operating procedure on construction site, he offered the following reply:

“A decision is included in the universe of non-structural BMPs.”

In criticizing First Wind’s stormwater management plan, the Ridge Protectors have tried to show that both plans are flawed.  The first plan allegedly lacks details — Mr. Torizzo testified that it offered “no way to tell how close the project is to the receiving waters.”  While the second plan, he said, included substantive changes.

“I feel very strongly the proposed grading changes the project significantly,” he testified.

On the stand Thursday, Mr. Torizzo told the court that the project footprint had been defined by the second plan.  It was a footprint, as it turned out, that was not to his liking.

He said he found the maximum amount of dirt to be uncovered — the limits of disturbance — had expanded substantially from the first plan.  He said the permit had  authorized 60.5 acres, but it now appeared that 79.4 acres of earth would be disturbed.  And as acreage increases, he said, so does the risk of impairing the waters.

He testified that both plans identify 34 catch basins on site, but of the detailed study he made of two basins, he found one undersized or insufficient to handle run-off.  Overall, he said, there were several basins that were located within 50 feet of streams and wetlands — a situation that would increase the impairment of their waters.

Ridge Protectors harbor the belief that because of the project’s location and its physical features — its steep slopes and high elevation streams — it is impossible for the project not to have an adverse impact on the environment.

First Wind attorney Geoffrey Hand tried suggest in his cross examination that Mr. Torizzo had been hired to foster that belief.

Isn’t it true, he asked at one point, that you were “not retained to offer specific measures to protect water quality?”

“I don’t agree with that statement,” replied Mr. Torizzo.

The attorney went to note that on other stormwater projects that Mr. Torizzo had worked on, the plans had not contained the details he was presently seeking for the Sheffield site.

“True that you haven’t subjected your own plans to such detail?” asked Mr. Hand.

“I wouldn’t say that,” Mr. Torizzo replied.

To date the court has heard six days of testimony:  five full days and two half days.  The trial is scheduled to resume next week.