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Deadlines Loom in Derby Wind Project

March 6, 2012

DERBY, VT - In what appears to be a change of heart, the Public Service Board (PSB) issued an order on Mar. 2 that seems to run contrary to verbal statements made by PSB member John Cotter, sitting without any other board members present, made at a Feb. 13 pre-hearing conference.
At that meeting - attended by local officials, residents, and Leslie Caldwell, attorney for wind project developer Encore Redevelopment - Cotter assured those present that "due process" would be done in the Derby wind project matter. He questioned Caldwell about why Canadian abutters to the Derby project were not notified of the intended construction, to which she asserted that doing so was too difficult and questioned whether the PSB could extend its reach into Canada, anyway. Cotter stated that everyone within a 10 mile radius of the project was required to be notified under state law and he said the developer had to supply a written explanation to the PSB as to why this notification didn't happen. Cotter gave Encore 10 days to reply. Cotter also asked about the lack of testimony on shadow flicker, ice throw, and bird or bat studies.
Cotter expressed concern over the timeline. He said if no one intervened, the project could move ahead quickly, but he anticipated interveners and promised that they are "going to get their due process."
At the time of that pre-hearing conference, a public hearing was scheduled for Mar. 1 at the Derby Elementary School with interveners expected to file by Mar. 7.
No procedure schedule would be set, Cotter reportedly said, until the PSB had received the information it wanted, or at least until Feb. 24, after the 10 day window in which Encore was to supply additional information. However, by the end of Feb. 17, a schedule was released that set the timeline for PSB process, including Mar. 1 for the site visit and public hearing and Mar. 7 for the deadline for motions to intervene.
On Feb. 23, just prior to its deadline, Encore submitted its proposed schedule for the proceedings and stated that the company would be filing testimony at an unspecified later date to address the issues raised by Cotter. In other words, Encore, apparently without requesting a deadline extension, indicated it would provide answers after the Feb. 24 deadline.
The situation became more complicated when the public hearing, scheduled for Mar. 1, was canceled due to inclement weather. Following that hearing, on Mar. 2, the Derby Select Board was scheduled to discuss and vote on whether or not it would intervene in the PSB proceedings. The board was divided on this matter.
Despite the cancellation of the Mar. 1 public hearing, Cotter decided to let the Mar. 7 intervener deadline stand based on assertions by Encore that their project had "been the subject of significant outreach in the communities surrounding the project sites, and the Board Clerk has been receiving public comments that indicate area residents are aware that the petition seeking approval of the projects has been filed." (Scheduling Order, Docket No. 7832, Public Service Board)
In language that bordered on the obscure, the order stated that Cotter would "entertain motions to intervene filed within seven calendar days of the public hearing," with no indication of when that public hearing might occur, and that, "In addition to the normally applicable standards governing intervention, anyone filing a motion during that period must demonstrate why they were unaware of the basis for their motion prior to the site visit and public hearing, and will have to comply with the schedule as it exists at the time any such motion is granted." In brief, if a second public hearing is scheduled, anyone wishing to intervene can do so within seven days of that hearing, but will have to go above and beyond the normal requirements of intervention as established by law and instead PROVE why they didn't know what they didn't know when they didn't know it.
Cotter did note in the order that the proposed schedule as set out by Encore was "overly aggressive and, as a practical matter, unworkable." The only way Encore's schedule could be met would be if the parties involved agreed to the schedule and resolved all issues by that agreement. Despite calling Encore's timetable aggressive, Cotter nonetheless established a schedule that will meet Encore's request to have the PSB matters decided or stipulated to by the middle of May.
In regards to Canadian residents, Cotter issued a second order on Mar. 2 that basically said they had no legal right under Vermont law to be granted the same protections as U.S. residents. Encore's legal representative filed a brief with the PSB arguing that the Canadian residents need not be notified, while the Department of Public Service filed a counter brief. Cotter upheld his original position that the Canadian abutters, whether residents or municipalities, had to be noticed, but also said that the Canadians were not entitled to "the same 45-day advance notice that was provided to similarly situated governmental units in Vermont." Cotter stated that Encore only has to show "good faith efforts" at notice, not actual notice.
Cotter defended his position by saying that noticing the Canadians would "serve no meaningful purpose" as the PSB is only concerned with what would benefit the State of Vermont and not with the impact of Vermont projects on foreign soil.
For now, the Derby wind project appears to be fast-tracked through mid-May barring an intervener with enough clout to derail the process and force it into a contested hearing. Encore, as far as anyone knows, as not yet responded to Cotter's original request for information.

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