On Appeal from Public Service Board March Term, 2012 James Volz, Chair
The opinion of the court was delivered by: Reiber, C.J.
In re Green Mountain Power Corp., Vermont Electric Cooperative, Inc. Vermont Electric Power Co., Inc., et al. (2011-277, 2011-366 & 2011-367)
PRESENT: Reiber, C.J., Dooley and Skoglund, JJ., and Eaton and Zonay, Supr. JJ.,
¶ 1. In these appeals, the Lowell Mountains Group, Inc. (LMG), and the Towns of Albany and Craftsbury, challenge several Public Service Board orders related to the construction of a wind-electric-generation facility and associated facilities on Lowell Mountain in Lowell, Vermont.*fn1 We affirm the Board's orders.
¶ 2. The record indicates the following. In May 2010, petitioners Green Mountain Power Corporation (GMP), Vermont Electric Cooperative, Inc. (VEC), and Vermont Electric Power Company, Inc. and Vermont Transco LLC (VELCO)*fn2 requested a certificate of public good (CPG) under 30 V.S.A. § 248 to construct a wind-electric-generation facility on Lowell Mountain. The proposed project consisted of up to twenty-one wind turbines and associated transmission and interconnection facilities. The turbines, each of which is expected to be over 400 feet tall, are to be sited along the Lowell Mountain ridgeline.
¶ 3. On May 31, 2011, following four rounds of prefiled testimony, several site visits, a public hearing, and nine days of technical hearings involving over forty expert and lay witnesses, the Board issued a 179-page final order granting a CPG subject to forty-five conditions. Generally speaking, the Board found that the project, consistent with the expressed intent of the Legislature, would help meet the region's need for renewable energy, provide an economic benefit to the state in the form of jobs and tax revenues, and provide GMP and VEC with a long-term source of stably priced power. The Board explained that it had approved the project based on these economic benefits and because the addition of a renewable source of power in the region was consistent with the state's legislated policy goals.
¶ 4. In reaching its decision, the Board recognized that the project could have significant impacts. It noted that GMP had entered into a Memorandum of Understanding (MOU) with the Vermont Agency of Natural Resources (ANR) to mitigate impacts with respect to habitat fragmentation, necessary wildlife habitat, and state-significant natural communities. The Board expressly conditioned its approval of the project on GMP's compliance with the MOU, which, among other things, required GMP to secure conservation easements on four identified parcels of land adjoining the project area. With respect to noise, the Board required GMP to meet specific standards to ensure that any noise remained at levels consistent with the World Health Organization (WHO) and Environmental Protection Agency guidelines.
¶ 5. For these and numerous other reasons set forth in detail in the Board's order, the Board found that, as conditioned, the project's benefits outweighed any adverse impacts and its construction and operation would promote the general good. Accordingly, it issued a CPG. Appellants and several other parties moved for reconsideration. On July 12, 2011, the Board modified its final order in certain respects, including granting GMP's request to extend the deadline for obtaining conservation easements. In Docket Number 2011-277, the Towns and LMG appeal the final order with modifications.
¶ 6. Shortly after filing their initial appeal, the Towns and LMG moved to stay and clarify the final order. The Board denied those motions on September 6, 2011. Prior to the issuance of this order, the Towns filed a motion to revoke the CPG, and LMG filed a motion for reconsideration. The Towns asserted that the project was no longer viable because GMP had failed to commence construction by the August 1 deadline set forth in the Board's final order, thereby jeopardizing federal tax credits that the Board had found enhanced the economic viability of the project. These motions were denied on October 3, 2011. The Towns appeal the October 3 order in Docket No. 2011-367.
¶ 7. In response to notice from GMP of unauthorized work performed by the owner of the parcels on which GMP was to obtain easements pursuant to the MOU, the Board issued a compliance order on August 11, 2011. The owner had undertaken earthwork and logging activities on three of the four parcels.*fn3 The Board's order required GMP to remediate and mitigate the impacts of those activities. Later that month, in response to the August 11 order, GMP filed a report stating that it had completed the required remediation and mitigation with respect to the easement parcels. ANR submitted a letter stating that GMP's remediation and mitigation was adequate to comply with an order ANR had issued pursuant to 10 V.S.A. § 1272 in response to the unauthorized work. For their part, the Towns submitted filings contending that the remediation and mitigation was inadequate and requesting a hearing on the issue. On August 31, 2011, the Board, in a 2-1 decision, concluded that GMP's remediation and mitigation was sufficient. The Board concluded that the Towns had failed to raise a significant issue warranting a technical hearing on the matter. The Towns appeal the August 31, 2011 order in Docket Number 2011-366.
¶ 8. Our review of the Board's decisions is limited. As we have explained:
When the Board evaluates a petition for a CPG under 30 V.S.A. § 248, it is engaging in a legislative, policy-making process. The Board must exercise its discretion to weigh alternatives presented to it, utilizing its particular expertise and informed judgment. We give great deference to the Board's expertise and judgment and accord a strong presumption of validity to the Board's orders. We will affirm the Board's findings unless they are clearly erroneous, and an appellant bears a heavy burden of demonstrating clear error.
In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 2, 185 Vt. 296, 969 A.2d 144 (quotations and citations omitted). Our deference extends to the whole of the Board's CPG decision, and we reject the Towns' assertion that we should not defer to the Board with respect to certain issues addressed in its decision, such as habitat fragmentation.
I. Docket Number 2011-277
¶ 9. We first consider the Towns' challenge to the Board's finding that the proposed project complies with noise standards necessary to protect public health. According to the Towns, the Board's finding is erroneous because GMP's noise modeling shows that the applicable noise standards will not be met.
¶ 10. We begin with the Board's findings regarding noise levels, several of which the Towns claim are clearly erroneous. The Board concluded that the proposed project would not have an undue adverse impact with respect to noise provided that GMP complied with certain conditions, including an absolute noise standard. The Board set the noise standard at 45 dBA (exterior) (Leq) (1 hr) and 30 dBA (interior bedrooms) (Leq) (1 hr).*fn4 It found this standard sufficient to protect human health and avoid sleep disturbance and equivalent to, if not more stringent than, the 2009 WHO Guidelines.
¶ 11. GMP conducted noise modeling on the four models of wind turbines being considered for the proposed project using standards related to the attenuation of sound propagation outdoors as specified by the International Organization for Standardization 9613-2, and as implemented in the Cadna/A acoustical modeling software, an internationally accepted and widely used acoustical model. This modeling showed that the project was expected to meet the noise standard of 45 dBA (exterior) (Leq) (1 hr) at nearby residences, with two of the proposed turbine models requiring a noise-reduced-operation (NRO) mode to meet the standard. The project would also meet the 30 dBA (interior bedrooms) (Leq) (1 hr) standard factoring in attenuation by structures.
¶ 12. The Board explicitly stated that if noise from the operation of the proposed project exceeded the maximum allowable levels, GMP was required to take all remedial steps necessary to bring the sound levels into compliance, including modification or cessation of turbine operation. As part of its order, the Board also directed petitioners to prepare a noise-monitoring plan subject to the parties' review and the Board's approval. This plan was required to be in place from the commencement of construction through the first two years of operations and to include, among other things: (1) a monitoring program to confirm under a variety of seasonal and climactic conditions compliance with the maximum allowable sound levels; (2) a means for ensuring that noise monitoring events were timed to coincide with those time periods when GMP's modeling indicated the likelihood that the NRO mode would be triggered; (3) compilation of monitoring reports that documented every instance when the NRO mode was triggered, with a description of how the NRO mode affected operations; (4) provision of monitoring, at the request of a homeowner, to ensure compliance with the interior noise standard; and (5) a process for complaint resolution for the entire life of the project. Many of these requirements were imposed in response to concerns raised by the Towns.
¶ 13. In reaching its conclusion, the Board considered the Towns' arguments that GMP's noise modeling was inaccurate and that it did not show that the proposed project, as currently designed, would meet a 45 dBA exterior standard. The Towns also asserted that GMP unjustifiably relied on a 15 dBA attenuation by structures to ensure that a 30 dBA interior standard was met. They claimed, moreover, that the NRO mode had not been demonstrated to work for the proposed project and that the proposed turbines were not selected to minimize noise. According to the Towns, GMP should have been required to select turbines to meet the standard without the use of an NRO mode to provide a margin of error for meeting the standard and in case the noise modeling for the proposed project was incorrect.
¶ 14. The Board rejected these arguments. It recognized that noise from the proposed project would likely be audible at residences surrounding the project but concluded that the imposition of absolute standards with regard to noise levels at the nearest receptor locations would appropriately ensure that these areas were not unduly impacted. The Board found it unnecessary to restrict GMP's use of certain turbine models, again noting that the proposed project was required to meet an absolute noise standard.
¶ 15. As to the attenuation claim, the Board found that the WHO Guidelines indicated that sound levels were usually reduced by 10 to 15 dBA when windows were slightly open, and with windows closed were typically reduced by somewhat less than 24 dBA and in certain cases as much as 45 dBA, depending on the building's insulation value. The Board found GMP's assumptions about attenuation consistent with values in the WHO Guidelines, and its noise modeling appropriate. The Board also noted that its order required GMP to comply with the indoor standard of 30 dBA (interior bedrooms) (Leq) (1 hr), regardless of the attenuation characteristics of the existing structure.
¶ 16. Based on these and numerous other findings, the Board concluded that, with the conditions imposed by its order, the project's noise levels would not have an undue adverse impact on public health or aesthetics. The Board reiterated its rejection of the Towns' arguments in its order on reconsideration.
¶ 17. The Towns argue on appeal that the Board erred in reaching its conclusion. They assert that GMP ignored the confidence intervals set forth in the modeling protocols, which renders the results of the modeling unreliable and requires that the results be adjusted by several decibels to provide a true "worst-case" scenario. The Towns maintain that the Board acted arbitrarily and capriciously by failing to directly address this issue, and they suggest that the Board's findings are insufficient to allow this Court to determine how the Board reached its conclusion. The Towns also complain that GMP's reliance on 15 dBA of attenuation by structures is insufficient under the WHO Guidelines, and they fault GMP for failing to conduct preconstruction turbulence monitoring. According to the Towns, allowing a project that has not shown, at the outset, that it can meet a necessary health standard is clearly erroneous and inconsistent with the Board's mandate under 30 V.S.A. § 248, and thus cannot be in the public good.
¶ 18. We reject these arguments. As the Board emphasized in its decision, it has imposed absolute noise standards with which GMP must comply. It has also required the implementation of a comprehensive noise-monitoring plan. To the extent that a truly "worst-case" scenario based on the confidence intervals comes to pass, that problem can and must be rectified. We agree with GMP that the Board's operating conditions effectively ensure that the project will comply with the Board's sound standard, regardless of the precise accuracy of the noise-level estimates in the testimony. It is the actual noise levels once the project is in operation that will control, not the estimates provided by GMP during the approval proceeding. The Board adequately explained its decision, and its decision is supported by the record.
¶ 19. As to attenuation by structures, the Towns complain that GMP erred in assuming a full 15 dBA of attenuation because WHO assumes only a 10-15 dBA attenuation, and then only for windows "slightly open." They maintain that homeowners should be allowed to sleep with their windows fully open or even sleep outside their homes without suffering undue adverse health impacts from noise. They assert that the results of GMP's noise modeling indicate that 10 dBA of attenuation is insufficient to meet the 30 dBA interior noise standard and that the project therefore poses an undue adverse risk to public health.
¶ 20. The Board acknowledged the Towns' arguments concerning attenuation, and it rejected them. It specifically found GMP's attenuation assumptions to be consistent with WHO Guidelines. We agree. In fact, the Guidelines upon which the Board relied use an average of a 21 dBA difference between outside and inside values, taking into account that even in well-insulated houses windows may be open a large part of the year. Additionally, as the Board repeatedly stated, it has imposed absolute noise levels. To the extent that the 30 dBA standard is not met, the problem will be rectified. As the Board made clear, "[t]he project must meet the Board-imposed standard or the petitioners will have to make operational adjustments to ensure that it does. Failure to meet the standard will be a violation of the CPG governing operation of the project."
¶ 21. For the same reason, we reject the Towns' contention that the Board erred by failing to require GMP to conduct preconstruction turbulence modeling. The Towns state that because the Board acknowledged in an unrelated case that turbulence had the potential to increase noise levels, it was clearly erroneous for the Board to find that this project would meet the noise standard absent preconstruction turbulence modeling to ensure that all potential noise sources were accounted for in the analysis. The Towns also argue that this was a "generally available mitigating step" that GMP failed to take. They claim that the Board failed to discuss this issue, thereby rendering its decision clearly erroneous.
¶ 22. The Towns assert that they preserved this argument by raising it in their initial brief and reply brief below. They provide no pinpoint cites to support this assertion, however, and fail to show precisely where, for example, in their 112-page initial brief this issue was raised. It is the Towns' burden to show how an issue is preserved, and they failed to meet that burden here. See In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078, 1081 (1988) (stating that appellant bears burden of demonstrating how trial court erred warranting reversal and Supreme Court will not comb record searching for error); see also V.R.A.P. 28(a)(4) (providing that appellant's brief should explain what issues are, how they were preserved, and what appellant's contentions are on appeal, with citations to authorities, statutes, and parts of record relied on).
¶ 23. In any event, this argument fails for the same reason as those above. The Board imposed an absolute noise standard with which GMP must comply. This ensures that there will not be "excessive" noise from turbulence or from any other source. We reject the argument that GMP was required to conduct such modeling before reaching its conclusion that the noise impacts were not undue. In a similar vein, the fact that such modeling was not conducted does not show that GMP failed to take a generally available mitigating step. In sum, we reject the Towns' argument that the Board's findings on the noise issue are insufficient to allow this Court to determine what was decided and why.
¶ 24. The Towns next argue that the Board erroneously approved wind turbines that are prohibited by its order. According to the Towns, the Board approved the project for up to only a 63 MW wind electric generation facility, yet petitioners have informed the Board that they will be using 21 Vestas V112 turbines for the project, which have a rated output of 3.075 MW rather than 3.0 MW. This results in a 64.575 MW wind-generation facility rather than a 63 MW facility.
¶ 25. The Board considered and rejected this argument, as do we. The record indicates that in its CPG decision, the Board reviewed four possible turbine models, including the Vestas V112-3.0 MW that GMP ultimately selected. The Board determined that the project would comply with 30 V.S.A. § 248 if any of the proposed turbines were used. GMP submitted its final design plans for the Board's review, and the Board approved GMP's turbine selection in a July 19, 2011 order.
¶ 26. In the meantime, the Towns filed a letter with the Board on July 12, 2011 arguing that GMP was prohibited from constructing the wind electric generating facility utilizing twenty-one Vestas V112-3.0 MW turbines because the Board's order approving the project stated that GMP was authorized to construct "up to a 63 MW project." The Towns argued that GMP must install only twenty of the V112 model turbines, select a different turbine, or obtain an amendment to the CPG. GMP responded to these arguments, and the Towns replied to this response.
¶ 27. The Board rejected the Towns' arguments in a July 20, 2011 memorandum to the parties. First, it noted that no party had properly presented a motion seeking any particular relief from the Board. Additionally, the Board explained that it had specifically considered and approved the construction of up to twenty-one of the V112 turbines in its May 2011 CPG. Therefore, the Board reasoned, to the extent that it was possible to read certain language in that order as placing a 63 MW restriction on the project, the Board considered such a restriction to be a technical error. Lastly, the Board stated that even if its order had ...