Cape slates hearing for law on wind

CAPE VINCENT — It could be the 11th hour for the Town Council, so it has decided to move ahead with an amendment to the zoning law for wind energy development.

The proposed law does not contain overt restrictions on sound, either by an absolute number or by a number relative to ambient noise levels. That upsets members of the Wind Power Ethics Group, which has opposed proposed wind developments in the town and actions by town boards that have conflicts of interest.

The council, meeting Thursday, acted to move the proposed law to a public hearing Nov. 23, with comments accepted through the close of business Nov. 30. A public notice appeared in the Times on Friday morning. It was submitted Tuesday.

"Their agenda is complying with what the developer wants," said John L. Byrne, a member of WPEG. "It seems like they're doing this to accommodate the developer — that's obvious."

Supervisor Thomas K. Rienbeck said, "We decided we don't want to go on any longer without any law."

He said it was important to pass a law both for commercial and personal wind towers, eliminating them from the lake and river districts.

Mr. Byrne called the timing "very questionable," in light of unknown election results that could end Mr. Rienbeck's time on the council.

After the election Nov. 3, Mr. Rienbeck, a Democrat, and Republican challenger Urban C. Hirschey, also a member of WPEG, are awaiting the tally of 230 absentee ballots. Mr. Rienbeck leads 532-490 before those ballots.

Republican and WPEG member Brooks J. Bragdon, with 510 votes, and Democratic incumbent Mickey W. Orvis, with 505 votes, are leading five candidates for two Council seats. Democrat Richard H. Macsherry, with 466 votes, has the only other mathematical chance of claiming a seat.

Councilman Joseph H. Wood did not run for re-election. Mr. Wood has signed a lease with St. Lawrence Wind Farm developer Acciona.

His departure would leave two council members with conflicts of interest with the two wind farm developers. That would create a majority of the five members who could vote for a wind zoning law without conflicts. The existing board cannot pass wind legislation if the three members who have acknowledged conflicts of interest recuse themselves.

The council could take a vote on the law at its December meeting, but that doesn't solve the issue with conflicted council members.

"From a legal standpoint, they can't really do anything with it," Mr. Byrne said. "It's a case of desperate men doing desperate things."

Based on the town's wind committee discussions, a February draft of the zoning law required a pre-construction ambient sound study of both audible and low-frequency noise. It detailed how the data should be collected and called for turbines to be placed so the noise from them would not exceed 6 decibels above ambient noise at nonparticipating residents' property lines.

In the proposed law, that is replaced by a single sentence, which tells the developer to prepare a "sound impact analysis" consistent with a policy from the Department of Environmental Conservation.

That policy shows human reaction to noise levels, including that noise up to 5 decibels is unnoticed or tolerable, but beginning above 5 decibels, humans feel that noise is intrusive and increases of more than 15 decibels is objectionable.

"It's a general policy," said Clifford J. Schneider, who is a former DEC fisheries biologist and has published peer-reviewed articles on acoustics. "But the policy never got down to specifics on measuring background sounds."

Using the policy will open loopholes for developers to measure noise as they see fit.

The committee had developed a specific way of assessing wind turbine impacts, using engineers from Bernier, Carr and Associates, Watertown, and Cavanaugh Tocci Associates, Sudbury, Mass.

Mr. Rienbeck explained the changes as ones that will allow commercial development.

"There was not a reasonable method to come up with that would not prohibit the wind farms," he said. "We want to regulate commercial wind farms, not prohibit them."

During the meeting Thursday night, Mr. Schneider asked Mr. Rienbeck how the changes were compiled. The conversation was captured on videotape, which the Times saw later.

"I had conversations with everyone involved," Mr. Rienbeck said.

Mr. Schneider asked, "Including the developer?"

Mr. Rienbeck responded, "Yes."

On Friday, Mr. Schneider said he and other residents had asked for and submitted Freedom of Information Requests to see the law proposals and recommendations from the acoustic engineers.

The committee's draft did allow for an easement with nonparticipating residents that brought noise levels in line with those for participating residents. The noise could not exceed 50 decibels at any dwelling or allow low-frequency noise that would cause significant disturbance.

The committee's draft law also outlined a noise compliance survey to be conducted within three months of a project construction.

The setbacks are no longer dependent in part on the acoustical data. And in the committee's draft, small wind towers also had to comply with the noise requirements.

The proposed law includes a compliance section, but the developer, not the town, receives the complaints from residents. In the committee's draft, the town or consultants performed noise tests and previous tests by consultants were used for comparison. In the proposed law, the developer's models are the base line for assessment.

In both versions, the developer may be required to institute temporary mitigation measures. In the proposed law, those measures "include such measures as temporary cessation of operation."

In the committee's draft, the measures include "not operating during the night time, not operating when rotor blades are iced, or after implementation of other source or receiver sound control or acceptable remediation or shut down turbine until complaint condition is resolved."

Much of the rest of the zoning law, including setbacks not related to sound, is unchanged, calling for a variety of plans and assessments, some as part of the environmental review process.

The public hearing will be at 7 p.m. Nov. 23 at Cape Vincent Recreation Park, 602 S. James St. Comments will be accepted at the supervisor's office until close of business Nov. 30.