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STATE OF VERMONT 1 PUBLIC SERVICE BOARD 2 DOCKET NUMBER 7156 3 4 AMENDED PETITION OF UPC VERMONT WIND, LLC, FOR A CERTIFICATE OF PUBLIC GOOD, PURSUANT 5 TO 30 V.S.A. SECTION 248, AUTHORIZING THE CONSTRUCTION AND OPERATION OF A 40 MW WIND 6 ELECTRIC GENERATION FACILITY, CONSISTING OF 16 WIND TURBINES, AND ASSOCIATED 7 TRANSMISSION AND INTERCONNECTION FACILITIES, IN SHEFFIELD AND SUTTON, VERMONT, TO BE 8 KNOWN AS THE "SHEFFIELD WIND PROJECT" -- 9 February 8, 2007 9:30 a.m. 10 --- 112 State Street 11 Montpelier, Vermont 12 13 14 Technical hearing held before the Vermont Public Service Board, at the Third Floor Hearing Room, 15 Chittenden Bank Building, 112 State Street, Montpelier, Vermont, on February 8, 2007, beginning at 9:30 a.m. 16 17 P R E S E N T 18 BOARD MEMBERS: James Volz, Chairman David C. Coen 19 John D. Burke 20 STAFF: Kurt Janson Edward McNamara 21 Gregg Faber 22 CAPITOL COURT REPORTERS, INC. 23 P.O. BOX 329 BURLINGTON, VERMONT 05402-0329 24 (802) 863-6067 (802) 879-4736 (Fax) 25 E-MAIL: info@capitolcourtreporters.com Capitol Court Reporters, Inc. (800/802) 863-606726

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A P P E A R A N C E S 1 2 JOHN COTTER, ESQUIRE Appearing for the Vt. Department of Public Service 3 112 State Street Montpelier, VT 05602-2601 4 SHEMS, DUNKIEL, KASSEL & SAUNDERS, PLLC 5 Appearing for UPC Vermont Wind, LLC 91 College Street 6 Burlington, VT 05401 BY: ANDREW N. RAUBVOGEL, ESQUIRE 7 JOHN B. KASSEL, ESQUIRE GEOFFREY HAND, ESQUIRE 8 DOWNS, RACHLIN & MARTIN, PLLC 9 Appearing for Ridge Protectors, Inc., UHS of Sutton, Inc. and Universal Health Services, Inc. 10 90 Prospect Street, P.O. Box 99 St. Johnsbury, VT 05819-0099 11 BY: BARCLAY T. JOHNSON, ESQUIRE 12 HERSHENSON, CARTER, SCOTT & McGEE, P.C. Appearing for Town of Sutton, Vermont 13 P.O. Box 909 Norwich, VT 05055 14 BY: C. DANIEL HERSHENSON, ESQUIRE 15 DONALD W. GREGORY, PRO SO 3767 Underpass Road 16 Sutton, VT 05867 17 JOHN W. KESSLER, ESQUIRE JULIE KELLIHER, ESQUIRE 18 Vermont Agency of Commerce & Community Development National Life Building, Drawer 20 19 Montpelier, VT 05620-0501 20 Also present: Cathy Sargent 21 Cynthia Barber Robert Ide 22 Dave Cowan Chris Menge 23 24 25

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INDEX 1 Witness Page Peter Guldberg 2 Direct Examination by Mr. Johnson 6 Prefiled Testimony 7A-Q 3 Cross Examination by Mr. Hershenson 8 Cross Examination by Mr. Raubvogel 23 4 Redirect Examination by Mr. Johnson 100 Cross Examination by Mr. Gregory 118 5 Recross Examination by Mr. Raubvogel 119 David McCue Prefiled Testimony 132A-F 6 Michael/Marsha Burrington Prefiled Testimony 133A-Y Kenneth Kaliski 7 Direct Examination by Mr. Hershenson 135 Prefiled Testimony 136A-L 8 Cross Examination by Mr. Johnson 137 Cross Examination by Mr. Raubvogel 141 9 Redirect Examination by Mr. Hershenson 170 Donald W. Gregory 10 Prefiled Testimony 183A-P Cross Examination by Mr. Raubvogel 184 11 Liz Pritchett Direct Examination by Mr. Hand 199 12 Prefiled Testimony 200A-V Prefiled Testimony of UPC Lay Witnesses 203A-LL 13 Eric Gilbertson Direct Examination by Mr. Kessler 218 14 Prefiled Testimony 222A-R Cross Examination by Mr. Hand 223 15 Redirect Examination by Mr. Kessler 263 Recross Examination by Mr. Hand 273 16 Robert Ide Direct Examination by Mr. Cotter 17 Prefiled Testimony 277A-PP Cross Examination by Mr. Kassel 282 18 Exhibit Admitted UHS/RPI PHG 1 6 19 UPC Cross PG 3, 4, 5, 6, 8, 11, 12, 13, 15 16 and 17 80 20 Sutton DM 1 and 2 131 MMB 1 and 2 133 21 Sutton KK-1 136 UPC Cross KK 1 and 2 169 22 DG 1 through 9 183 UPC Cross DG 1 188 23 UPC LP Reb 1 A and B and Reb 2 200 ANR EG 1 through 3 222 24 DHP Surrebuttal 1 and 2 222 UPC EG 2, 12 and 16 25425

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(Board Member Burke is absent) 1

CHAIRMAN VOLZ: Good morning. We are 2

here for a hearing in docket 7156, the 3

petition of UPC to build a wind turbine 4

facility in Sheffield, Vermont. 5

I would like to start by taking notices 6

of appearance. 7

MR. COTTER: John Cotter for the 8

Department of Public Service. Also in 9

attendance is Robert Ide, the Department 10

Director for Energy Efficiency. 11

MR. HERSHENSON: Dan Hershenson. I'm 12

here for the Town of Sutton. 13

MR. JOHNSON: Barclay Johnson; Downs, 14

Rachlin, Martin, PLLC on behalf of Ridge 15

Protectors, Inc., and Universal Health 16

Services, UHS of Sutton. 17

MR. GREGORY: Don Gregory, pro se. 18

MR. RAUBVOGEL: Andy Raubvogel for UPC 19

Vermont Wind, and with me is Dave Cowan from 20

UPC, and Chris Menge, one of our consultants. 21

CHAIRMAN VOLZ: Unless there are 22

preliminary matters, we might as well start 23

with the first witness which is, I think, Mr. 24

Guldberg. 25

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MR. JOHNSON: Call Peter Guldberg. 1

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PETER GULDBERG 1

having first been duly sworn 2

testified as follows: 3

DIRECT EXAMINATION BY MR. JOHNSON: 4

Q. Could you state your name for the record, 5

please? 6

A. Peter Guldberg. 7

Q. And if I show you what's identified as 8

prefiled testimony of Peter H. Guldberg, is that testimony 9

that you prepared yourself, or you caused to be prepared? 10

A. Yes. 11

Q. And remains true and accurate to the best of 12

your knowledge today? 13

A. Yes. 14

Q. And attached to that is one exhibit which is 15

identified as PHG-1 and that is a -- your resume; is that 16

correct? 17

A. Yes. 18

MR. JOHNSON: We would move that Mr. 19

Guldberg's prefiled testimony and exhibit be 20

entered into the record. 21

CHAIRMAN VOLZ: Any objection? 22

MR. RAUBVOGEL: No. 23

CHAIRMAN VOLZ: It's admitted. 24

(Exhibit UHS/RPI-PHG-1 was25

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admitted into evidence.) 1

(Prefiled testimony of Peter Guldberg 2

was included in the original transcript 3

only, at pages 7A through Q, 4

inclusive.) 5

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CHAIRMAN VOLZ: It's my understanding 1

Sutton is going to be first. 2

MR. HERSHENSON: I believe that's 3

correct. 4

CHAIRMAN VOLZ: Why don't you go ahead. 5

CROSS EXAMINATION BY MR. HERSHENSON: 6

Q. Good morning, sir. 7

A. Good morning. 8

Q. Do you have with you your prefiled testimony? 9

A. I do. 10

Q. Do you also have the report that was submitted 11

in this matter by Harris, Miller, Miller and Hanson? 12

A. Yes. 13

Q. And it's dated February 14, 2006? 14

A. Yes. 15

Q. Were you here during the testimony of the 16

authors of this document? 17

A. Yes, I was. 18

Q. And did you understand that there was a 19

surrebuttal exhibit submitted which was identified as 20

table one computed wind farm noise levels at noise 21

sensitive land uses in the community for the Clipper 22

layout dated January, 2007? 23

A. Yes. And I have a copy of that. 24

Q. And that replaced a table that was in the 25

9

original report, didn't it? 1

A. That's correct. 2

Q. And that was based on the reconfiguration of 3

the turbines and the use of the Clipper? 4

A. Yes. 5

MR. RAUBVOGEL: I'm sorry, I just want 6

to note for the record, Mr. Hershenson asked 7

the -- our panel whether that replaced the 8

table, and they specifically said it didn't 9

replace the table. 10

CHAIRMAN VOLZ: Okay. Did not replace 11

the table. 12

MR. RAUBVOGEL: Did not replace the 13

table. 14

MR. HERSHENSON: My recollection was 15

that they said it did. 16

MR. RAUBVOGEL: I think they said it was 17

in addition to. But it didn't replace it. It 18

was not the same table. 19

CHAIRMAN VOLZ: That's my recollection 20

also. 21

MR. HERSHENSON: Okay. All right. 22

MR. JANSON: Could I -- just so the 23

record is clear, that is Exhibit UPC-CB-SSRB-1 24

corrected, I believe. 25

10

MR. RAUBVOGEL: That is, yes, that is 1

the new document. 2

MR. JANSON: Is it clear, Mr. Guldberg 3

do you have the corrected version of this in 4

front of you? 5

THE WITNESS: Yes. The one I have says 6

corrected. It matches your description. 7

MR. JANSON: Thank you. 8

BY MR. HERSHENSON: 9

Q. Now is it your understanding that table 7 in 10

the original report, table 8, table 9, and table 10 which 11

represent the monitoring events were not changed? 12

A. That is my understanding. No further baseline 13

monitoring was done since the original HMMH report was 14

issued. 15

Q. Would you turn, please, to your prefiled 16

testimony. And I'm looking specifically at page 12 17

beginning on line 20. 18

A. I'm there. 19

Q. And going through page 14 approximately line 20

8. Are you with me? 21

A. Yes, I'm there. 22

Q. In summary, this testimony is testimony by you 23

dealing with the modeling that was done by HMMH; correct? 24

A. Yes. 25

11

Q. And these are, in fact, criticisms that you've 1

expressed of the methodology they used to model the noise 2

that would come from the turbines themselves? 3

A. They are. 4

Q. And in summary, I believe you state that based 5

on these errs, the modeling has underestimated the sound 6

pressure levels by approximately 5 to 8 decibels. Is that 7

a correct statement? 8

A. That's what it says. Yes. 9

Q. Now would you take a look at table 1, the 10

corrected table 1, and if I understand correctly, if the 5 11

to 8 decibels that you testified to understate the sound 12

levels, I would add those to the numbers in what is the 13

column identified as January 2007 layout, LA-max dBA? 14

A. You would. 15

Q. So for example, at the King George School 16

dormitories, assuming for the sake of discussion that 17

these numbers are otherwise correct, the 30 decibels would 18

go to either 35 or 38? 19

A. That is correct. 20

Q. And that would be uniformly true all the way 21

down this column? 22

A. In general. Yes. 23

Q. Now you also indicate, do you not, in your 24

testimony, that you had some problems with the monitoring 25

12

at the site? 1

A. That's correct. 2

Q. And that monitoring was an effort to 3

determine, was it not, the ambient noise levels for this 4

area in this community? 5

A. That is the purpose of baseline monitoring. 6

Yes. 7

Q. What I couldn't tell from your testimony was 8

whether or not there was a quantitative response to what 9

you perceived to be the errs in their monitoring. In 10

other words, is there a way to place a number value as you 11

did in the modeling with regard to the monitoring events? 12

A. I don't propose a number in terms of a 13

correction to it. I simply point out that the duration of 14

the monitoring was extremely short. Much of the data 15

wasn't valid, and likely additional monitoring would 16

reveal lower nighttime sound levels than the measurements 17

for really just one night that are represented by these 18

data. 19

Q. Well one of the criticisms you had, was it 20

not, that there was excessive wind speed, and moisture at 21

the time that the monitoring took place? 22

A. There were high winds associated with the 23

snowstorm during about half of the monitoring period. And 24

there was snow and ice stuck on the microphone at each of 25

13

the monitoring sites as shown by the photographs in HMMH's 1

reports. And that's a violation of ANSI standards. So my 2

-- 3

Q. Is that likely to make the monitoring levels 4

higher or lower? 5

A. We don't know. It calls them into question. 6

As my testimony states. 7

Q. Now you have an office in Massachusetts? 8

A. I do. 9

Q. Do you do acoustic work in Massachusetts? 10

A. Yes. 11

Q. Is there a body in Massachusetts which would 12

be the equivalent of the Public Service Board in Vermont? 13

A. There is. It's called the Energy Facilities 14

Siting Board. 15

Q. And do they have a policy -- 16

MR. RAUBVOGEL: Objection. I think this 17

goes beyond his direct testimony. His direct 18

testimony does not address at all the question 19

of whether -- of other noise criterion or 20

standards, and I think this clearly goes 21

beyond his testimony. 22

CHAIRMAN VOLZ: Mr. Hershenson, do you 23

have a response? 24

MR. HERSHENSON: Well I think that this 25

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gentleman has testified in response to a 1

recommendation by HMMH that this Board adopt 2

the EPA guidelines, and I think it's certainly 3

relevant, and I think that his testimony 4

indicates that he has problems with those 5

standards. And I'm asking him whether-- the 6

line of questioning is whether or not there 7

are other standards that this Board should 8

consider. 9

And I think it's certainly appropriate 10

and probably important for the Board to know 11

what other guidelines there are out there that 12

would measure the community's impact with 13

regard to sound pressure levels from these 14

turbines. 15

MR. RAUBVOGEL: Just a quick response. 16

The whole point of having prefiled direct, 17

rebuttal, surrebuttal, is it is so that 18

parties don't come to the hearing room for the 19

first time and start expressing opinions that 20

have not been previously testified to and 21

discovered. This witness clearly did not go 22

down this road, and for him to come -- for Dan 23

now to do exactly what we were anticipating, 24

and we flagged this, that this witness did not 25

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file rebuttal testimony. And so now there is 1

simply -- now he's really testifying on an 2

issue for the first time. 3

CHAIRMAN VOLZ: Do you have a response 4

to that? 5

MR. HERSHENSON: Well I think that his 6

testimony is -- the testimony that he has 7

filed on direct testimony directly deals with 8

the issue of sound pressure levels, the 9

measurement of sound pressure levels, his 10

criticisms of the technology that they used, 11

and the method they used, but more 12

importantly, whether or not the standard they 13

use is appropriate. And I think on 14

cross-examination of an expert witness, this 15

is an appropriate question. 16

(Pause) 17

CHAIRMAN VOLZ: I think Mr. Raubvogel 18

makes a good point and raises a legitimate 19

concern about how far afield you can go. And 20

a concern about not following the procedure 21

that we have. The procedures are here for a 22

reason, and that is that prefiled-- this is 23

not a Perry Mason trial, this is a 24

deliberative process where there are not 25

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supposed to be any surprises. 1

This witness should have prefiled all of 2

his opinions. On the other hand, I think your 3

line of questioning in this particular 4

instance is within the scope of what he's 5

testified to, and so we will allow that 6

question. But I would just warn you about 7

future questions that you not stray from the 8

direct testimony. 9

MR. HERSHENSON: Right. 10

CHAIRMAN VOLZ: Thank you. 11

MR. HERSHENSON: I understand that. 12

This is not my witness, though, and I have no 13

control over what his testimony is. 14

CHAIRMAN VOLZ: True. But you filed-- 15

but he's stating opinions of a party whose 16

interest is similar to ours, and so that's a 17

concern that we have. 18

The other thing I wanted to say on a 19

different topic, I should have said at the 20

very beginning, is that Mr. Burke isn't here 21

this morning, he was unable to make it. He 22

will be here later today, and he's planning to 23

read the transcript. Why don't you continue. 24

MR. HERSHENSON: Thank you. 25

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BY MR. HERSHENSON: 1

Q. Do you have the question in mind? 2

A. I remember the question. Yes. 3

Q. And the question was, I believe, is there a 4

Board in Massachusetts which is the equivalent of the 5

Vermont Public Service Board? 6

A. The answer was yes, and I gave the name of the 7

Board previously. 8

Q. And does that Board have a noise policy with 9

regard to approving projects? 10

A. Yes. With regard to energy projects, they 11

look for a demonstration that the proposed project does 12

not produce a maximum sound pressure level more than 6 13

decibels above the lowest L-90 existing sound level. 14

Q. And in this particular case, we have 15

differentials between the L-max and the L-90 of at least 6 16

decibels? 17

A. That is correct. Looking at the applicant's 18

exhibits, there are increases of more than 6 decibels just 19

to -- comparing the various HMMH exhibits. Yes. 20

Q. And in fact, if your numbers are correct, we 21

have differentials as high as 15 decibels? 22

A. Yes. Because I believe that the actual sound 23

levels could be as much as 10 decibels higher than what 24

has been presented in the HMMH study report. And the -- 25

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we are already more than 6 decibels above, so yes, a 1

differential of 15 or more in terms of an increase. 2

Q. Are there any other equivalent noise standards 3

in Massachusetts or policies that you're aware of? 4

A. There is a state noise regulation implemented 5

through state DEP noise policy. 6

Q. And what is that standard or policy? 7

A. It allows a maximum from any new energy 8

project of 10 decibels above the lowest L-90 sound level. 9

Q. And again that would be exceeded in this 10

situation, would it not? 11

A. In my opinion, it could be. Given the under- 12

estimation in the modeled impacts from the facility. 13

Yeah. 14

Q. But the Massachusetts policies or standards 15

are not -- they haven't been adopted in Vermont, isn't 16

that correct? 17

A. As far as I know. 18

Q. And in fact, there is no -- to your knowledge 19

there is no state policy in Vermont with regard to noise? 20

A. There is no written state standard. There are 21

certain policies -- there are certain policies that have 22

been set by precedent by various state boards in Act 250 23

commissions. 24

Q. But there is no written regulation? 25

19

A. There is none. 1

Q. And in fact, it's true, is it not, that the 2

methodology used in Massachusetts has been criticized by 3

acoustics experts? 4

A. Yes. 5

Q. In fact, Mr. Kaliski has criticized it, has he 6

not? 7

A. He has. 8

Q. And, in fact, there has been criticism of the 9

EPA guidelines, has there not? 10

A. By EPA guideline I assume you mean the 55 LDN 11

guideline used in the HMMH report. 12

Q. Right. 13

A. Yes. There have been criticisms of that by 14

various consultants. 15

Q. And that's true also of the WHO guidelines? 16

A. In certain circumstances, yes. 17

Q. Well let me ask you a question. Since Vermont 18

does not have a written regulation regarding noise levels 19

for projects such as this, and given the fact that we have 20

guidelines that are subject to criticism depending on who 21

the acoustics expert is, how is a Board like this supposed 22

to render a decision on this issue? 23

Do you have any recommendation that you would 24

make in a situation like this? 25

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A. Without presuming the Board's discretion here, 1

I would think the important questions to be asked would be 2

whether the sound from a proposed energy project is 3

audible, first of all. Secondly, whether it is audible at 4

the most sensitive receptors in terms of noise impacts 5

that would disturb sleep or annoys people that live in the 6

area . And at this particular site that would be the 7

girl's dormitory for the King George School at night, and 8

whether there are any other specific sounds from the wind 9

project that people would find annoying besides tones such 10

as impulse noise. 11

Those would be the questions I would focus on. 12

I would gather information, and then try to decide whether 13

it represents a noticeable change out of character with 14

the existing environment or not. 15

Q. Would a community's expectation of noise 16

levels be a factor you would consider? Or recommend 17

considering? 18

A. Yes, and I'm not alone in that opinion. Mr. 19

Menge has stated the same opinion in another case in New 20

Hampshire where the community was a rural community with 21

very low sound levels, so the existing sound levels and 22

people's expectations are important. 23

Q. As a general rule, my understanding is that a 24

decibel sound pressure level change of about 5 decibels is 25

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very noticeable. 1

A. An increase in 5 decibels in a broadband sound 2

level is noticeable. Yes. 3

Q. And 10 decibels is perceived to be a doubling 4

of the sound? 5

A. Yes. 6

Q. And that situation would exist in certain 7

receptor locations based on table 1, your testimony, and 8

tables 7, 8, and 9? 9

A. Yes. 10

MR. HERSHENSON: That's all I have. 11

Thank you. 12

CHAIRMAN VOLZ: Thank you. Mr. 13

Guldberg, in answer to the last couple of 14

questions at one point you said in the 15

broadband, is that what you said, in the -- 16

THE WITNESS: Yes. 17

CHAIRMAN VOLZ: Reference to broadband 18

spectrum or something. Were you 19

distinguishing that from some other spectrum 20

that is relevant in this case? 21

THE WITNESS: I was. When we speak of 22

sound that's, let's say, 60 decibels which is 23

the human voice, you're hearing about 60 24

decibels right now as I'm speaking to you. 25

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I'm talking about a broadband sound level. 1

It's the -- includes all the frequencies. And 2

that 60 A-weighted decibels when we give a 3

single number, we refer to A-weighted 4

decibels. 5

One issue in this case is whether there 6

are audible tones. And you hear a tone when 7

there is sound and a particular frequency that 8

is higher energy than the surrounding 9

frequencies. So your ear can pick it out. 10

The most common example being if you play a 11

note on the piano, like middle A, around 440 12

hertz, your brain will say I hear a single 13

note. You're actually hearing more, but 14

you're hearing also a pure tone. 15

One of the questions about tones is how 16

much higher does that peak have to be for you 17

to hear it from the background noise, all the 18

other noise that's associated with a source. 19

Our ears can hear a tone easier than we can 20

hear an increase in sound levels. So when the 21

attorney was asking me is 5 decibel increase 22

noticeable, yes, that's the rule of thumb for 23

broadband sound. But an increase of less than 24

5 in a particular narrow frequency range would 25

23

be noticeable. Just because the tones can be 1

easily heard more by our ears. That's why I 2

made the distinction. 3

CHAIRMAN VOLZ: All right. Thank you. 4

THE WITNESS: I'm sorry for the long 5

answer. 6

CHAIRMAN VOLZ: That's all right. I 7

wanted to understand it. I take it you're 8

next, Mr. Raubvogel. 9

MR. RAUBVOGEL: I am. 10

CHAIRMAN VOLZ: Go right ahead. 11

CROSS EXAMINATION BY MR. RAUBVOGEL: 12

Q. Good morning, Mr. Guldberg. 13

A. Good morning, Mr. Raubvogel. 14

Q. Should I use Peter? 15

A. Yes, Andy. 16

Q. Let's see. I'm going to just pick up on a 17

couple of the issues Mr. Hershenson touched on, and then 18

I'm going to go back to some other ones. In terms of the 19

background data that was collected, you've reviewed the 20

report, you've said that. The data was actually collected 21

over close to two full days; correct? 22

A. Less than two days at site M-1 which is the 23

one closer to the King George School. 24

Q. Site M-1 was the site on Hardscrabble Mountain 25

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Road. It's five hours short of two days; correct? 1

A. That's correct. 2

Q. For all the monitoring sites, the storm that 3

occurred was in the first day of the two days; is that 4

correct? 5

A. That's correct. 6

Q. The second night was a quiet night; is that 7

correct? 8

A. It was a night with very low wind speeds. 9

Q. Correct. 10

A. You would expect it to be quiet. 11

Q. And in fact, the L-90's for that night were in 12

the low 20's; correct? 13

A. That's correct. 14

Q. And that's a fairly low sound level, is it 15

not? 16

A. It's in the low range. 17

Q. Okay. And the range of LEQ's at the M-1 site 18

were as low as 24? 19

A. That's also right. 20

Q. Okay. Your testimony on page 13 where you 21

describe the underestimations in your opinion of the 22

maximum sound levels, you focus on the use of the moderate 23

nighttime inversion issue, and you focus on the question 24

of ground absorption. Those are two issues that you 25

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focused on; correct? 1

A. Two of the three. 2

Q. Two of the three? 3

A. Yes. 4

Q. If there were higher wind speeds that would 5

not have been captured in moderate nighttime inversion and 6

that had been modeled, would that not have also taken into 7

account the ground absorption issue, because at higher 8

wind speeds you would have less ground absorption, so the 9

model, in fact, would have taken that into account? If 10

you had modeled it that way? 11

A. I don't understand your question. 12

Q. Well in other words, are you double counting 13

here? If you're saying that they should have accounted 14

for -- they should not have used the moderate nighttime 15

inversion modeling assumption that's within the 9613 16

standard. If they had used a different assumption, they 17

would model it using higher wind speeds, at higher wind 18

speeds would the sound not travel faster, and in traveling 19

faster isn't there less likelihood that you would have a 20

ground absorption factor? 21

A. I didn't say that they should throw out the 22

9613. I said it didn't represent the worst case. 23

Q. I understand that. But what I'm asking you is 24

you've said that that underestimates it by two to three 25

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dB, and then you go on to say that the ground absorption 1

factor underestimates it by two to three dB as well. And 2

what I'm asking you is if they had modeled it in a way 3

that did account for higher wind speeds, wouldn't that 4

have also accounted for the ground absorption factor? 5

A. No. They are two different factors. I'm 6

criticizing Mr. Bajdek in one instance for taking the 7

ground absorption credit which is inapplicable under 8

temperature inversion conditions, because the temperature 9

inversion profile reflects -- refracts, R-E-F-R-A-C-T-S, 10

the sound levels from the higher level of the hub down 11

towards ground level. So that's one area of under- 12

estimation of impact. 13

The principal critique of using ISO 9613-2 14

conditions was that the wind speeds at the hub height of 15

the wind turbine also produce downward refraction of the 16

sound levels. And it's been-- my experience looking at 17

the results of modeling for other wind power projects that 18

as the wind speed increases at the hub height, you get a 19

stretching out of the sound level contours, due to the 20

refraction associated with the wind speed profile. So we 21

have refraction both associated with the wind speed 22

profile and with the temperature inversion profile. So 23

no, I do not believe I'm double counting in my critique. 24

Q. Okay. Let me back up, and start from scratch. 25

27

You've already said you didn't file rebuttal testimony in 1

this case; correct? 2

A. Correct. 3

Q. You've reviewed all of UPC's prefiled 4

testimony? 5

A. I believe I have. 6

Q. Okay. And the exhibits that they had filed? 7

A. I've tried to. There is a lot of them. 8

Q. Okay. And the discovery answers? 9

A. Yes. 10

Q. Okay. You've reviewed the Clipper data that's 11

been provided most recently in January and the previous 12

Clipper data? 13

A. Yes. 14

Q. Okay. You have -- you're generally familiar 15

with the site and the surrounding environment, the 16

surrounding land, have you visited the site? 17

A. Yes, I'm familiar with it. 18

Q. And I take it then that you're aware that 19

logging activities occur on the project lands? 20

A. I've not been there and seen logging 21

activities. I'll take your word for it. 22

Q. Are you aware that the entire parcel is owned 23

by a logging company? 24

A. I've not focused my attention on that. 25

28

Q. Do you think that if there was logging 1

activity in the general vicinity, do you think that's a 2

relevant factor in terms of whether -- in terms of 3

understanding the existing noise environment? 4

A. In the general vicinity of what? 5

Q. Well in the -- let's -- if you would turn 6

around and look at the -- at this diagram. I don't have 7

the Exhibit Number on this. This is the aerial view from 8

the rebuttal filing. 9

A. I've seen it before. 10

Q. Okay. You understand these dots to be the 11

turbine locations? 12

A. Yes. 13

Q. Okay. If there is logging activity in the 14

areas around the -- that are part of the same land where 15

the turbines and the roads are located, for example, to 16

the south of the Granby Mountain or to the south of Libby 17

Hill, those would be noise producing activities, would 18

they not? 19

A. During the short periods of when that activity 20

was occurring. Yes, they would. 21

Q. Okay. 22

BOARD MEMBER COEN: Wait a minute. Why 23

short period? 24

MR. RAUBVOGEL: I was going to get 25

29

there. No -- that's my question. 1

BY MR. RAUBVOGEL: 2

Q. What do you know about those activities that 3

suggest to you that they are short? 4

A. Logging is a temporary activity. It's not 5

permanent on the land at opposed to a wind project which 6

would produce continuous sound levels. 7

Q. Due -- if this is a parcel of land that is 8

part of a state program that requires that it be logged on 9

a regular basis, is that a short-term activity? 10

A. For any given logging operation, sure. 11

Because they are not logging 24 hours a day, not logging 12

at night. 13

Q. By short term you mean it doesn't cover the 14

entire 24-hour period? 15

A. Yes. 16

Q. And do you believe that the windmills -- the 17

wind turbines for this project are going to be operating 18

continuously 24 hours a day, 7 days a week? 19

A. If they aren't for many days, the developer 20

isn't going to make back his investment. 21

Q. You've worked on other wind projects? 22

A. Yes. 23

Q. So you understand the wind regimes generally 24

of wind projects? 25

30

A. Yes. 1

Q. You understand that they operate, and this 2

project is expected to operate, somewhere in the 30 plus 3

percent capacity factor? 4

A. They don't operate all the time. 5

Q. They don't operate all the time. We can 6

agree, can't we, they don't operate 24 hours a day, and 7

they don't necessarily operate 7 days a week, it depends 8

upon the winds? 9

A. That's true. But when there are winds, they 10

do operate around the clock at night. Continuously. 11

Q. When there are winds that are sufficient 12

during the nighttime period they could operate 13

continuously, you would have to have winds above the 14

cut-in speed; correct? 15

A. Yes. 16

Q. And below the cut-out speed? 17

A. Yes. 18

Q. At the hub height? 19

A. At the hub height. 20

Q. Only under those circumstances would they 21

operate for whatever period those winds exist? 22

A. By definition. Yes. 23

Q. Those kind of winds don't exist every day? 24

A. Not every day, but they do exist some days. 25

31

Q. Okay. And at the lower wind speeds -- well 1

before the cut-in speed, the turbines produced no sound, 2

before the cut-in, before the wind turbines actually begin 3

to turn, they are not generating sound; correct? 4

A. Actually that's not true. There is -- the 5

aeolian wind, which is the wind flowing around the turbine 6

blades and the tower in a parked position, it's not as 7

loud. 8

Q. It's a much lower level -- 9

A. It's a lower level, but it is sound. 10

Q. At the lower wind speeds, the sound levels 11

from the turbines is lower than it is at higher wind 12

speeds, is it not? 13

A. Yes, that's true. 14

Q. It's as much as 10 dB lower, is it not? 15

A. It can be. 16

Q. That's what the data -- what the Clipper data 17

shows; does it not? That there is a 10 dB difference? 18

A. Between the cut-in and the design. Yes. 19

Q. Okay. Have you ever worked on a project where 20

you had to look at the sound levels from logging 21

activities? 22

A. No. 23

Q. Okay. Do you have any knowledge about the 24

sound levels from logging activities? 25

32

A. Other than there are probably chain saws and 1

trucks involved. No. 2

Q. Okay. And chain saws to your knowledge 3

produce a fairly loud sound level? 4

A. For a person standing near them they do. Yes. 5

Q. Okay. For a person standing near them meaning 6

that as a source, it can be a loud sound level, I take it? 7

A. My chain saw certainly is. 8

Q. Yeah. Over a hundred dB? 9

A. Well the question doesn't mean anything unless 10

you give me a reference. 11

Q. Standing in fairly close proximity to the 12

source. 13

A. Certainly a sound power level of a hundred dB. 14

Yes. 15

Q. If you would -- just -- I'm sorry. Do you 16

have UPC's documents with you, or should I provide that? 17

A. I have most of them. Yes. 18

Q. Okay. I'm looking at CRV-Reb-13. Which you 19

may not have there because it's not a sound exhibit. 20

CRV-Reb-13 is a letter from Meadowsend Timberlands, 21

Limited, dated September 23, 2006; is that correct? 22

A. That's what it says. 23

Q. You've never seen this letter before? 24

A. I haven't. I have not looked at every exhibit 25

33

on this case. 1

Q. Okay. This is -- if you assume for me for a 2

moment that this is a document that's been entered into 3

the record in this case, please. 4

A. I will. 5

Q. If you would read the first sentence. 6

A. I wanted to let you know that MTL, which is 7

Meadowsend Timberlands, Limited is planning on doing some 8

logging this winter on the King George forest. 9

Q. And then the next sentence, please? 10

A. We will be working on the south facing slopes 11

of Libby Hill down to the power line and over to our 12

western boundary. 13

Q. Okay. Would you also read the sentence which 14

begins "we will not"? 15

A. We will not be completing the entire area this 16

winter, but should be able to work out about 80 acres. 17

Q. And finally the next sentence, please? 18

A. Over the next five years the management plan 19

calls for work on 500 or so acres in various locations. 20

Q. Okay. Thank you. Does that provide you with 21

a little more information about the kind of logging 22

activities that might be occurring at this project? 23

A. It tells me that there is logging going on on 24

a periodic basis up on the mountain. 25

34

Q. Okay. Have you said elsewhere -- 1

CHAIRMAN VOLZ: Let me just interrupt 2

for a second. I want to make sure I 3

understand your point about this, which is I 4

take it to be logging is going to happen 5

during the daylight hours, and while the 6

turbines won't be on all the time, they will 7

come on whenever the wind blows, and that 8

could be at any time of day or night? 9

THE WITNESS: That's correct. And the 10

most important time in terms of potential 11

impacts on the people who live near the site, 12

and in particular the students at King George 13

School, is the nighttime period when they 14

would sleep with their windows open, and they 15

would hear it through those open windows. 16

CHAIRMAN VOLZ: All right. Thank you. 17

BY MR. RAUBVOGEL: 18

Q. First of all modern wind turbines are 19

considered upwind turbines; is that correct? 20

A. That is the correct term. 21

Q. Okay. Have you -- you have said in other 22

cases, or in another case, and I quote, "The new 23

generation of quiet turbines are used throughout Europe in 24

locations as close as one quarter to one half of a mile 25

35

from residences, without being audible." And that was in 1

your Cape Wind rebuttal. Do you recall -- did I just read 2

that correctly? And I'm looking -- this is PG-6, page 9, 3

line 13. 4

MR. JANSON: UPC-Cross-PG-6. 5

MR. RAUBVOGEL: Yes. I'm sorry. 6

THE WITNESS: Cross-PG-6, page 9. 7

BY MR. RAUBVOGEL: 8

Q. Do you have the set of cross exhibits with 9

you? 10

A. That's what this pile of papers in front of 11

me. 12

Q. All right. 13

A. I assumed you were going to start on one. 14

That's why I turned it over. 15

Q. I wish. So my question is simply this. Did 16

you state the quote that I just read to you, the new 17

generation of quiet turbines are used throughout Europe in 18

locations as close as one quarter to one half of a mile 19

from residences without being audible. Is that your 20

statement in that case? 21

A. That's my statement. 22

Q. That's my only question. Okay. Thank you. 23

Now one of the criticisms you've made is that, and this 24

was with respect to your direct testimony which focused on 25

36

the Gamesa turbines and that layout, that there was no 1

actual sound data for the lower frequencies, and that 2

there was not one third octave data, do you recall those 3

criticisms? 4

A. That was one of 6 criticisms. Yes. 5

Q. And you've seen the Clipper data, so you would 6

agree that the Clipper data has one third octave data for 7

the lower frequencies; does it not? 8

A. Yes. They have been presented for the 8 meter 9

per second wind speed but -- 10

Q. That's my only -- 11

A. They have not been fully presented. 12

Q. Okay. My question is whether this presents 13

one third octave data for the referenced conditions. 14

A. It doesn't erase my critique. It doesn't 15

provide one third octave band data for the cut-in or the 16

designed wind speeds. 17

Q. Okay. It provides it for the referenced 18

condition of 8 meters per second at 10 meters above ground 19

elevation; correct? 20

A. It does for that one condition. Yes. 21

Q. Okay. And that condition, can you convert for 22

us 8 meters per second is approximately what miles per 23

hour? 24

A. 18 miles per hour. 25

37

Q. Okay. And that's at the -- at ground -- I'm 1

sorry, that's at 10 meters. At hub height would be a 2

higher number; correct? 3

A. It would be slightly higher than that. Yes. 4

Q. It would be -- could you give an approximation 5

of what it might be? 6

A. No. Because it depends on the meteorological 7

conditions. 8

Q. Is it going -- could it be 10 dB higher, is it 9

likely to be two or three dB higher? 10

A. I thought we were talking about wind speed. 11

Q. Wind speed. I'm sorry. Is it likely to be -- 12

is there a range in which you would expect it to be 13

different relative to the 10 meters wind speed? 14

A. It would depend upon the wind profile in the 15

environment. It might be very close to the 10 meter 16

height in some conditions, and it might be several meters 17

per second higher in others. 18

Q. Okay. And at that wind speed if you look at 19

the top graph, at 8 meters per second, it shows it to be 20

103; correct, the sound pressure level? 21

A. It's not the sound pressure level. It's the 22

sound power level. 23

Q. Sound power level? 24

A. Is 107. 25

38

Q. Yes. At that middle wind speed let's say. 1

Okay. And it shows at a wind speed of -- and the wind 2

speed would be higher at hub height than what is -- than 3

what's indicated there. This is indicating wind speed at 4

10 meters above the ground. This is a graph that 5

indicates, does it not, wind speed at 10 meters? 6

A. It does. 7

Q. Okay. This indicates also wind speeds at 15 8

meters per second, at 10 meters above the ground; correct? 9

A. Yes. That's on the graph. Yes. 10

Q. That's right. And that would be -- that would 11

translate to what in miles per hour? 12

A. It would be 30 plus miles per hour. 13

Q. Okay. Now looking just at the data that has 14

been presented here, you are aware of what the threshold 15

of hearing is for particular frequencies; is that correct? 16

A. Yes. And you've kindly presented my own table 17

back to me on the subject. 18

Q. Yes. Now looking at this table, and looking 19

at the data, you can determine that the -- 20

MR. JOHNSON: Which table? 21

MR. RAUBVOGEL: Looking at the Cross 22

PG-1, the Clipper data. 23

MR. JOHNSON: Okay. 24

BY MR. RAUBVOGEL: 25

39

Q. You can determine that at the distances at 1

which the closest receptors are located, the lower 2

frequencies will be below the threshold of hearing based 3

upon this data. 4

A. Most of the low frequency sound levels from 5

this project are above the threshold of data. 6

Q. Would you look at figure two, please. 7

A. PG-Cross-1? 8

Q. Correct. 9

A. Yes. 10

Q. And if you would look at the figure -- at the 11

number for 31.5 hertz and follow that up and tell us what 12

the SPL dB is for that? 13

A. 70. 14

Q. Well -- 15

A. Which is above the sound pressure level for 16

the threshold of hearing, as I just stated. 17

Q. Excuse me. Well if you look at 31.5, isn't 18

the dot below the line 70? 19

A. I have to take my bifocals off. I'm sorry. 20

Q. Isn't it at about 68? 21

A. It's at 68 for a reference wind speed at a 22

distance -- it says measured 400 feet down wind is -- 23

Q. So 400 feet down wind, and I'm asking you at 24

receptors that are 3 quarters of a mile or a mile away, 25

40

would not those levels decrease with distance such that by 1

the time they were at 3 quarters of a mile away, it would 2

be less than that figure? 3

A. At that wind speed, but that's not the worst 4

case condition. 5

Q. Well I'm asking you about this -- let's just 6

focus on this. Okay. Looking at this data, looking at 7

this condition, would the sound pressure level at the 8

receptor 3 quarters of a mile away be below 68 or above 9

68? 10

A. But the number on this graph contradicts the 11

information presented in Mr. Menge's modeling which is -- 12

shows that there is audible sound at 31 and-a-half hertz. 13

Q. Excuse me. If you would answer my question. 14

If you look at the data, and understanding as a sound 15

professional the general principle that sound decreases 16

with distance, at 400 feet if you have 68 dB for 31.5 17

hertz frequency, when it is 3 quarters of a mile away, 18

would you not expect it to be below that figure? 19

A. You would, but I would point out again that 20

this does not represent the worst case condition. This is 21

a lower wind speed. When the turbine doesn't produce as 22

much sound. 23

Q. The turbine would produce 1. -- according to 24

this graph, at a higher wind speed, about 1 dB greater; 25

41

correct? 1

MR. JANSON: By this graph you're 2

pointing to figure one on the same -- 3

MR. RAUBVOGEL: Cross PG-1. 4

BY MR. RAUBVOGEL: 5

Q. Would this not show at 15 meters per second 6

which you said is about 30 miles per hour, that this would 7

-- that the total sound power level for the turbine would 8

be about one dB higher than at the referenced wind speed 9

at the bottom graph. That's what it shows, does it not? 10

A. No. You're reading the graph wrong. It's 4 11

dB higher, and in fact, the reason that you're trying to 12

-- the reason these impacts are meaningless, is that the 13

proposed project is not a single turbine. The proposed 14

project is 16 turbines, and so the sound impact that is 15

going to be heard at the King George School dormitory and 16

that's revealed in the model by your expert, shows the 17

impacts from 16 turbines overlaying on top of each other. 18

So if you ask me a question about a single 19

turbine, at a low wind speed, at a single frequency, yes, 20

it's rated the threshold of hearing. But -- 21

Q. Mr. Guldberg, would you please turn to page 19 22

of Mr. Menge's rebuttal testimony. This graph shows a 23

line for the threshold of hearing; is that correct? 24

A. Yes. It does. 25

42

Q. And it shows that at 31 or thereabouts, it is 1

approximately 68 which corresponds to your table one Cross 2

PG-3; correct? 3

A. If I could trouble you for the color copy 4

because I don't have a color copy. 5

Q. Sure. 6

A. Thank you. That is correct. 7

Q. And it shows that the modeled results for all 8

the modeled locations are below that figure, that line; 9

does it not show that? 10

A. In that particular graph. 11

Q. Thank you. Now in light of that, you said 12

that the data did not show that. This shows that, in 13

fact, at the modeled receptors, at -- and this is based 14

upon the September filing, this is not based on the new 15

Clipper data, but on this filing, it is certainly below 16

the threshold of hearing, is it not? 17

A. For that graph it is. 18

Q. Thank you. 19

A. At 31 hertz. 20

Q. That's right. And again, looking at the 21

Cross-PG-1, and looking at the lower frequencies below 31 22

hertz, if you took those figures -- I'm looking at PG-1, 23

if you took those figures and you are just looking at 24

this, and you extrapolated that out, to a distance similar 25

43

to the closest receptors, the sound would be below the 1

threshold of hearing, would it not? 2

A. Which sound are you asking me about? 3

Q. The sound from the turbine based upon this 4

modeled -- based upon this sound data. Using -- looking 5

at this graph, and looking at the frequencies below 31.5, 6

and keeping in mind your threshold of hearing table. 7

A. Below 31. Only below 31. All the other 8

frequencies would be audible above that. 9

Q. Okay. Focusing on low frequencies? 10

A. Well low frequencies are a frequency below a 11

thousand hertz, so there are low frequencies that are 12

clearly audible from this project. 13

Q. And you define low frequencies elsewhere as 14

frequencies below 31.5 hertz. You have not always defined 15

low frequencies as below a thousand hertz? 16

A. Show me an exhibit if you want to ask me a 17

question, please. 18

Q. Well I'm asking you the question. Have you 19

ever described low frequencies as something other than 20

below a thousand hertz, have you described it as something 21

below 31 hertz? 22

A. I believe you're referring to my 23

characterization of very low frequencies as frequencies of 24

20 hertz and below in the Cape Wind project. 25

44

Q. Okay. 1

A. So no, I have not, in answer to your question. 2

Q. Okay. Okay. Looking at the Cape Wind study, 3

PG-16. And this is just an excerpt. This is -- you show 4

on the graph that's at the back of this document, the last 5

two pages, you're showing a one third octave band 6

frequency analysis; correct? 7

A. Yes. 8

Q. This is not a narrow band analysis, is it? 9

A. This is not. No. 10

Q. Okay. Thank you. And in the same document 11

you discuss how to -- the calculation of audible pure 12

tones, if you would look at page two, please. And in that 13

-- so on page two, you describe how to calculate an 14

audible pure tone, do you not, using the ANSI standard? 15

A. I discuss the ANSI standard which was one of 3 16

tonality standards used in the Cape Wind analysis. 17

Q. Okay. The only analysis that is -- the only 18

analysis that's in the Cape Wind study that provides tonal 19

figures is using the ANSI standard, is it not, in this 20

Cape Wind EIS, the only one that is focused on is the one 21

that shows the ANSI standards. 22

A. No. That's not true. I said there were 3 23

tonality standards we used in the Cape Wind project. 24

Q. That are reflected in the EIS? 25

45

A. I believe so. Yes. 1

Q. And what are those? 2

A. Well there is the ANSI standard, there is the 3

Massachusetts DEP noise policy standard which is on that 4

same page. 5

Q. Other than Massachusetts -- 6

A. And also the IEC tonality analysis. 7

Q. And do you have that study with you? 8

A. No. I do not. 9

Q. Excuse me for a moment. Are you saying that 10

the EIS for the Cape Wind project shows anything other 11

than the ANSI calculations? 12

A. I'm telling you that the -- 13

Q. That's my question. Does the EIS which 14

presents the noise study show anything other than the ANSI 15

figures and the Massachusetts figures? Does it show 16

anything with regard to the IEC figures? 17

A. We didn't present the IEC report because it 18

was a confidential document from GE Wind Power. So the 19

IEC report is not in the EIS. 20

Q. And the EIS makes no reference to the IEC 21

standard for tones, it only makes reference to the ANSI 22

standard? 23

A. In this document, that's correct. Yes. 24

Q. Okay. Thank you. Now the -- if you would 25

46

look at PG -- well I'm sorry. Before we go there. The 1

ANSI standard looks at a frequency and the one third 2

octave frequency and the frequencies -- the one third 3

octave bands on either side; correct? 4

A. That's correct. 5

Q. Okay. It says here on page two according to 6

ANSI standards, an audible pure tone occurs when a one 7

third octave band in the time averaged LEQ spectrum formed 8

by adding the new sound to the existing baseline levels is 9

higher than the numerical mean of the two adjacent bands 10

by 5 to 15 dB. And then you go on to differentiate 11

between -- this appendix goes on to differentiate between 12

when it's 5 dB at certain frequency ratings, et cetera. 13

Correct? 14

A. That's what it says. Yes. 15

Q. Okay. And if you look at PG-15, which is an 16

excerpt of the ANSI standard, and look at the section 17

which reads Annex C, okay, does it state the test for the 18

presence of a prominent discreet frequency spectral 19

component, paren, tone, typically compares the time 20

average sound pressure level in some one third octave band 21

with the time average sound pressure levels in the 22

adjacent two, one third octave bands. For a prominent 23

discreet tone to be identified as present, the time 24

average sound pressure level in the one third octave band 25

47

of interest is required to exceed the time average sound 1

pressure level for the two adjacent one third octave band 2

by some constant level difference, is that what that says? 3

That's my simple question. Does it say that? 4

A. Yes. But it does not apply to tonal sound 5

that's associated with sleep disturbance. 6

Q. Okay. It says what I read; does it not? 7

A. That portion of the document says what you 8

read. 9

Q. Okay. Thank you. And then it goes on to 10

describe whether you apply 5 or 8 or 15 dB; correct? 11

A. Yes. 12

Q. If you would look at PG, let's see, -- PG-17. 13

A. I have it. 14

Q. Okay. This is a table that -- so if you would 15

just -- if you would -- just so we can make sure we are 16

looking at the same data. If you look at the data from 17

Cross-PG-1, the frequency chart on the left-hand side. 18

Does that correspond with on PG-17, the frequency and 19

reported LWA dB, those are the same figures, are they not? 20

A. They are. 21

Q. And then the next column -- excuse me. The 22

next column is the -- is an adjustment for the A-weighted 23

relative response taken from the source that's indicated 24

below there, do I see that? 25

48

A. Yes. 1

Q. And you're aware -- you're familiar with that 2

source? 3

A. Yes. 4

Q. That reference? 5

A. Yes. 6

Q. Is that a reliable reference? 7

A. Those are the standard A weighting factors, 8

they are correct. 9

Q. And those are correct? 10

A. Yes, they are. 11

Q. Okay. And 10 it shows the unweighted LW in 12

the next column, do you see that? 13

A. Yes. The math on this page is correct. 14

Q. Okay. Thank you. Looking at the 400 15

frequency octave, this does the math to look at the 16

difference between that octave band and the two on either 17

side; does it not? 18

A. It does. 19

Q. And it shows that the difference is 2.3; 20

correct? 21

A. Yes. It does. 22

Q. Okay. And just focusing on the ANSI standard 23

that we looked at, for that frequency, you would apply an 24

8 dB criterion; correct? 25

49

A. If you only looked at the ANSI standard. 1

Q. Thank you. And in this case it does not 2

exceed the ANSI standard for that -- 3

A. That band does not. No. 4

Q. Nor does the next one, nor does the thousand 5

hertz? 6

A. Nor does the thousand hertz. 7

Q. Okay. 8

A. Nor do the bands in the earlier September 15 9

test either. 10

Q. Okay. In terms of the sound -- the projected 11

sound levels at the receptors that have been projected by 12

HMMH, those are levels that are projected at the outside 13

of a receptor; correct, they are not indoor levels? 14

A. They are exterior. That's correct. 15

Q. And you have said in other cases that a 16

typical building in a cold climate state with windows open 17

provide 17 dB of shielding. Do you recall saying that? 18

A. Yes. That's the rule of thumb from the EPA 19

guideline most noise consultants use. 20

Q. Well you use that. That's a figure you've 21

relied on, you relied on that in -- I'm looking at 22

Cross-PG-5. It was an affidavit you filed with the New 23

York State Board of Electric Generating Site and the 24

Environment; correct? 25

50

A. That's correct. 1

Q. So the 17 -- so that's actually higher than 2

the more conservative assumption that HMMH used, is it 3

not? 4

A. It's essentially the same. 15 to 17 is what 5

acoustic consultants assume. If you have a window cracked 6

open, you'll get that much of attenuation. 7

Q. Okay. You actually didn't say 15 to 17. You 8

said 17 in this document; correct? 9

A. In that document. It's from EPA. 10

Q. Okay. It doesn't say this is your opinion, 11

you're not just reporting what EPA says. You stated in 12

the affidavit that was your testimony, was it not? 13

A. If you want my opinion, it is up to 17 14

decibels if the window is cracked open. It can be a lot 15

less. 16

Q. You didn't say that in this affidavit, did 17

you? 18

A. No. 19

Q. Okay. Thank you. Can you identify every Act 20

250 case that you've participated in where you recommended 21

a standard other than a maximum sound level? 22

A. Sitting here, no. 23

Q. How many Act 250 cases have you been involved 24

in? 25

51

A. On various issues, probably 6 to 7. 1

Q. Okay. Have you ever recommended something 2

other than a maximum sound level? I'm not asking you what 3

the numbers that you recommended were, but let's start 4

with have you ever recommended anything other than a 5

single maximum sound level? Have you ever recommended a 6

relative noise standard? 7

A. I can't tell you. I don't remember the Act 8

250 cases. I would have to go back and look through my 9

files. 10

Q. You've only been involved in 6 or 7. Let's go 11

through those. The Pike Quarry case. Do you recall 12

recommending a relative noise standard in that case? 13

A. I don't honestly remember. 14

Q. Are you aware of any case in either Act 250 or 15

Section 248 where either the Environmental Board or this 16

Board has applied a relative noise standard rather than 17

establishing a maximum sound level at receptors, are you 18

aware of any case? 19

A. Not offhand. 20

Q. Okay. In your -- in the 3 criticisms that you 21

state in your testimony on why the HMMH modeling 22

understated the maximum sound levels, one of those factors 23

was vegetation, was it not? 24

A. Yes. My original testimony refers to the 25

52

original modeling that was done. 1

Q. Okay. And that you said that was worth one to 2

two dB correction; correct? 3

A. I did. 4

Q. And that was part of your total correction of 5

5 to 8 dB; correct? 6

A. In my original testimony. Yes. 7

Q. Okay. The -- I thought Mr. Hershenson asked 8

you whether and you confirmed that it was still 5 to 8 dB. 9

A. And I said yes. 10

Q. Okay. So you're not taking into account that 11

the new modeling does not -- no longer factors in 12

vegetation? 13

A. I was taking that into account. But I was 14

also taking into account that the sound power level was 6 15

decibels too low in the new modeling. 16

Q. 6 decibels too low based upon -- 17

A. The guarantee of 109 for the Clipper wind -- 18

Q. Just focusing on the data from Clipper, and 19

setting aside what the warranty says, the one to two dB 20

that you stated would need to be corrected, would not be 21

corrected for that new data, it's already been accounted 22

for, has it not? 23

A. No, it hasn't. Just confining myself to your 24

exhibit Cross-PG-1, the Clipper wind data show a sound 25

53

power level of 107. That's 4 decibels alone above the 103 1

that Mr. Menge and Mr. Bajdek used in their revised 2

modeling. 3

Q. Excuse me. The sound level, would you read 4

the line that begins 103? 5

A. 103 at 8 meters per second reference wind 6

speed. 7

Q. That's fine. So at that reference wind speed, 8

your criticism of the vegetation issue was with respect to 9

the modeling they had done. Given the modeling that they 10

did, and given that they no longer take into account 11

vegetation, your criticism of one to two dB would no 12

longer apply to that data, would it? 13

A. That little piece alone, but it's 14

insignificant in comparison to the errors and the 6 15

decibel error that has been introduced in the latest 16

modeling. 17

Q. You stated 5 to 8 dB, 1 to 2 dB is no longer 18

relevant. So you're saying that if you took one to two 19

and you subtracted that from 5 to 8, that's not a 20

significant difference, in your total estimation. See now 21

-- my simple question is, going from 5 to 8 to 4 to 6, in 22

terms of the relative difference, there is a difference 23

there in the numbers, is there not? 24

A. But the new modeling that you're asking me 25

54

about, contains a new error. That's larger than the other 1

error that was taken out. So it's now 10 to 12 decibels 2

in terms of my opinion. 3

Q. Do you have any data, do you have any data, 4

that suggests that the Clipper turbine will produce sound 5

levels at the 107 or 109 level, cite any data that you 6

have that supports that. I'm talking about sound data. 7

Is the only data that you have in front of you now with 8

respect to their most recent test the data that shows 103? 9

The -- -- 10

A. This very Exhibit PG-Cross-1 shows 107 sound 11

power up at 15 meters per second. So in answer to your 12

question, yes, and I also have -- 13

Q. Excuse me. 14

A. I'm trying to answer your question, counselor. 15

Q. Yes. 16

A. There are also exhibits from the manufacturer 17

that show that the wind -- Clipper wind turbine can emit 18

as much as 109 decibels in terms of sound power. 19

Q. Mr. Guldberg, I understand your point. I 20

think the Board understands your point that the warranty 21

says what it says. I'm asking you, not about the 22

contractual relationship, I'm asking you about actual 23

data. Were you here for Mr. Menge's testimony? 24

A. Yes, I was. 25

55

Q. Didn't he testify that the green line 1

represents the actual turbine noise, and that the red line 2

is the turbine with background together? Do you recall 3

that testimony? 4

A. Yes, yes, I do. 5

Q. So the turbine sound, the sound emitted from 6

the turbine is not 107 as you just stated. That would-- 7

the sound emitted from the turbine was not 107. Is that 8

true? That's my question. 9

A. Actually that's not true. Because there are 10

no -- if you look at the blue or black line that's at the 11

bottom there, there are no data points at 15 meters per 12

second. Someone has -- 13

Q. But you -- 14

A. I'm answering your question. Someone has 15

guessed what the mean park noise would be in this exhibit 16

at 15 meters per second. There are no real data presented 17

for the background noise at 15 meters per second. Someone 18

has simply guessed what it would be and has stuck a number 19

in there which is now net around 105. But the actual 20

measurement, and that's the mean measurement is 107. The 21

red data point on here. And realize this is the mean 22

noise. This is not the actual noise. Because this graph 23

doesn't conform to IEC 61,400 which would require that it 24

show all of the test data, the scatter, and the maximum 25

56

noise. 1

So since we know the mean noise measured was 2

107, the maximum noise has to be higher than 107. There 3

was more than one data point obviously. So I would say 4

this exhibit clearly shows that the sound power level from 5

this wind turbine is 107 or higher at high wind speeds. 6

Q. You just said that you can't -- that you can't 7

rely on because there is an absence of background data, 8

yet now you're saying that even in the absence of that 9

data you can assume that the wind turbine would produce 10

107? 11

A. I'm saying the only real data point on here is 12

a mean measured level of 107. That's the red point on 13

this exhibit. There are no background noise levels 14

listed. And we know that there are scatter of several 15

decibels, at least from my experience looking at IEC 16

reports of wind turbines, there is a scatter of one or two 17

decibels, about, so it's reasonable to assume that the 18

actual maximum sound power from this turbine at 15 meters 19

per second wind speed is somewhere between 107 and 109. 20

Q. You don't have that data. You're just -- you 21

do not have any data that supports that, do you? That's 22

my question. 23

A. No. That's one of the problems on this case. 24

That none of the data is in conformance with IEC 61,400 25

57

have been provided by the applicant. 1

Q. Have you looked at 13 meters per second where 2

there is still background wind data? What does it show 3

for the green line for the actual turbine sound? 4

A. 104 decibels. 5

Q. Okay. Thank you. 6

A. Which is higher than what Mr. Menge modeled. 7

Q. Mr. Menge modeled it using the standard 8

modeling technique. They modeled -- strike that. How am 9

I doing on time? 10

CHAIRMAN VOLZ: 10 minutes. 10, 12 11

minutes. 12

MR. RAUBVOGEL: Okay. 13

CHAIRMAN VOLZ: Afterward we will take a 14

break. 15

BY MR. RAUBVOGEL: 16

Q. With respect to background monitoring, in the 17

Verizon case, which is cross PG-4, how many hours of 18

monitoring did you do in that case? You used -- let me 19

ask the question a different way. 20

In that case you looked at an afternoon, you 21

looked at an -- essentially part of a day. More than 22

afternoon and in evening; correct? 23

A. That's right. We took short-term 24

measurements, I would say, at different parts of the day 25

58

to characterize the existing acoustic environment. 1

Q. Thank you. In the -- in the Rivers Quarry 2

case, in Moretown, the baseline monitoring measurements 3

you took there were for 30 to 60 minute period; correct? 4

A. I don't honestly remember. I know we had 5

long-term monitors out there that -- for several days. 6

And we also took some short-term measurements to 7

supplement those. 8

Q. In the looking again at Cross-PG-4, which is 9

your testimony in the -- in the Verizon case; correct? 10

This was a cell tower at St. Mary's church in Newport. Do 11

you have that document? 12

A. Just give me a moment. I'm sorry. Yes. 13

Q. Okay. Looking at page 7 line 7, do you state 14

in this case the L-90 level does not properly characterize 15

an area because it ignores the 90 percent of the sounds in 16

the existing environment that are loudest. Is that what 17

it reads? 18

A. You read it correctly. 19

Q. Okay. And then starting on line 13, it reads 20

U.S. EPA states that background noise may be considered as 21

the equivalent sound level LEQ that existed before the 22

introduction to the new noise, does it state that? 23

A. Yes. It does. 24

Q. Excuse me for a moment. 25

59

CHAIRMAN VOLZ: Sure. 1

BY MR. RAUBVOGEL: 2

Q. Okay. With respect to the Rhede Park study 3

that you cite by Dr. Van den Berg; is that correct? 4

A. I believe that's his name. Yes. 5

Q. And focusing on the article that you cite, The 6

Beat is Getting Stronger, I'm just abbreviating the name. 7

A. I have it. Let me find it. I have it. Thank 8

you. 9

Q. You stated in your testimony given the 10

similarities between Rhede Wind Park and the UPC Wind 11

project, both in terms of wind turbine generator size and 12

numbers of turbines,, it is highly likely annoying impulse 13

noise will be audible in the evening. Okay, you stated 14

that; correct? 15

A. I believe that's what my testimony is. 16

Q. Now you've stated in discovery that the Dr. 17

Van den Berg's study is the only study that measures this 18

phenomenon; is that correct? 19

A. That I have seen. 20

Q. And in fact he said to you he's not aware of 21

any other measurements of this phenomena in the E-mail, 22

did he not? I'm looking now at Cross-PG-7. Didn't he 23

state I am not -- I am not aware of other measurements of 24

this phenomenon? 25

60

A. That's what he says. 1

Q. Yes. You've also stated, I believe, in 2

discovery that you have never -- you have never done any 3

measurements at other wind projects with respect to this 4

issue, have you? 5

A. I've not measured for the purpose of 6

documenting impulse noise. No. 7

Q. Okay. Thank you. You also told us in 8

response to discovery that you did not have any 9

information on the topography of the Rhede Park environs; 10

is that correct? 11

A. I don't. No. 12

Q. You do not. And you also said that Dr. Van 13

den Berg did not -- his research does not evaluate the 14

effects of mountainous terrain on the beating or impulse 15

noise produced by modern wind turbines, that's what you 16

said in discovery; correct? 17

A. Probably. Because his research has to do only 18

with the Rhede Wind Park which is a relatively flat 19

location. 20

Q. It's a very flat location, is it not? 21

A. I haven't been there. But it would appear 22

from the -- from reading his articles that it's farm land. 23

Q. And it's located on the border of Germany and 24

the Netherlands; correct? 25

61

A. It's a relatively flat area. Yes. 1

Q. When you say relatively, are you aware of 2

there being something other than flat land in that general 3

environment? 4

A. I can't testify as to how smooth or bumpy it 5

is. I haven't been there. But it's farm land. So it's 6

not mountainous terrain. 7

Q. Well looking, if you would, look at 8

Cross-PG-9B, does this appear to be a depiction of the 9

Rhede Wind Park -- I'm sorry, if you look at the second 10

page, first of all do you recognize the general layout of 11

the Rhede Wind Park as depicted on that figure? 12

A. Someone has put the layout of the turbines on 13

to this figure. 14

Q. Okay. And this figure indicates elevation 15

contours, is that what's indicated on the bottom of the 16

document? 17

A. Yes. But -- yes. I can't testify that this 18

figure is accurate or this is where the Rhede Wind Park 19

is. 20

Q. Can you look at the first page of the -- does 21

this appear to be a screen shot from a Google Earth -- 22

from Google Earth? 23

MR. JOHNSON: Are we -- I might have an 24

objection. I'm concerned this is Rhede -- or 25

62

Rhede Wind Park, question mark. And we went 1

through this yesterday. Are we introducing 2

this for the truth of -- 3

MR. RAUBVOGEL: I haven't introduced it. 4

I'm just trying to ask him -- I'm trying to 5

establish -- I think as my questions are 6

indicating, what the general topography is. 7

And he used the phrase relatively flat. And 8

I'm just asking him whether there is other 9

documents which would indicate how flat. And 10

so I'm -- so my question is simply starting 11

with asking him to look at the picture. 12

MR. JOHNSON: Well and with respect to 13

the second page, I think Mr. Guldberg already 14

said that he couldn't testify as to the 15

accuracy of the map. 16

BY MR. RAUBVOGEL: 17

Q. Would you look at Cross-PG-9A, please. 18

A. Yes. 19

Q. Do you recognize this as a figure from Dr. Van 20

den Berg's dissertation? And the second page as well, 21

chapter 4? 22

A. I've never read his dissertation. 23

Q. You've never seen chapter 4? 24

A. No. 25

63

Q. That's fine. 1

A. So I don't. 2

Q. So your testimony is that it's relatively 3

flat; correct, that's what you said? 4

A. Yes. That's the best I can do. Yeah. 5

Q. And you would not describe the area of the 6

Sheffield wind farm as relatively flat, would you? 7

A. No. I would not. 8

Q. Okay. Thank you. Now you asked Dr. Van den 9

Berg whether -- for more information in an E-mail; 10

correct? This is Cross-PG-7. 11

A. That is what PG-7 is. Yes. 12

Q. Okay. But the response you get back from him 13

actually was after you filed your testimony, you did not 14

have this E-mail prior to filing your testimony; correct? 15

A. My prefiled. No. 16

Q. Okay. So the -- so the only information you 17

had at the time you filed your prefiled was the Van den 18

Berg articles that you cite to; correct, on this issue? 19

A. That is correct. 20

Q. Okay. So his statement about his observations 21

with respect to other residents, that was not information 22

that you had at the time you filed your testimony? 23

A. Not the original testimony, though I filed it 24

in response to a discovery request from the other side. 25

64

Q. I understand. I'm asking about your original. 1

A. Yes. The original testimony. 2

Q. Okay. Thank you. Now his statement in his 3

E-mail many residents told me the same about wind farms in 4

the Netherlands the U.K., New Zealand, and Australia. He 5

said that in the E-mail, did he not? 6

A. That's what it says. 7

Q. Okay. Now you have no personal information 8

about who he spoke with, how many people he spoke with, 9

where they lived relative to the wind projects or any 10

other details about that based upon this E-mail, do you? 11

A. In reference to this E-mail, no, I do not. 12

Q. Okay. And that's the information you've 13

provided in discovery, is it not? 14

A. Exact same. 15

Q. Okay. Now in terms of the type of turbines 16

used at Rhede Park, are you aware of the type of turbine 17

that they used? 18

A. I think it was a 1.8 or 2 megawatt. 19

Q. Do you know who the manufacturer was? 20

A. I would have to go back and look. I don't 21

offhand. 22

Q. Do you know what the tower height was? 23

A. I think it was about 250 feet. 24

Q. Do you know what the turbine blade lengths 25

65

are? 1

A. I would have to look it up. Not offhand. 2

Q. Okay. Did you examine, or did Dr. Van den 3

Berg examine whether the type of turbine; either its size, 4

its generator type, or any other factors with respect to 5

the turbine, would have an influence on the effect that he 6

found at that wind park with respect to the synchronicity 7

of turbines? Did he provide any information on that 8

issue? 9

A. Did he provide me -- 10

Q. Did he provide in any of the materials that 11

you've read, any information about whether the turbine 12

type has an influence on the synchronicity? 13

A. What do you mean by the turbine type 14

specifically? 15

Q. The turbine type I'm talking about the 16

manufacturer, the model, the height, the blades, anything 17

about that turbine. The type of generators used. Is 18

there anything in his written materials which says 19

anything about whether the type of turbine has an 20

influence on his results? 21

A. There are many factors -- you've asked me two 22

different questions here. Your first question you asked 23

was whether the turbine type bears on the question of 24

whether the turbines could become nearly synchronist. And 25

66

the second question you asked me was about his results. 1

Q. Well let me rephrase the question. 2

A. Please. 3

Q. Have you looked at -- you said you don't know 4

what -- who manufactured the turbines there, you don't 5

know those details; correct? 6

A. It is in his document. I would have to go 7

back and look at it. 8

Q. Did you look at the information with respect 9

to the turbine and compare that to the specific type of 10

turbine being used in this project? 11

A. I looked at the factors that would be relevant 12

to the production of impulse noise and compared them 13

between Sheffield and Rhede. Yes. 14

Q. Do you have any information on whether it's 15

possible that the generator type used in a turbine could 16

have an effect on whether those turbines could be 17

synchronous, did you ever look at that issue? 18

A. I didn't examine that. No. 19

Q. Okay. With respect to the layout of the Rhede 20

Park, would you agree that 10 of the turbines are lined up 21

in a virtual straight row, do you agree with that? 22

A. Yes. 23

Q. Would you agree that all the receptors that 24

were examined in that case were all to the west of that 25

67

row? 1

A. Yes. 2

Q. And you're familiar with the project layout 3

for this project; correct? 4

A. I am. 5

Q. And looking at PG-10, the first page, this is 6

the one, would you agree that there are some turbines that 7

are lined up, and then there are other turbines which are 8

not lined up in this diagram? 9

A. There is a mixture. Yes. 10

Q. There is a mixture. Okay. With respect to 11

the proximity of residences, the data that he reports in 12

the beating article, is for residences that were located 13

280 meters, 625 meters, and 750 meters away; correct? 14

A. Those were the 3 residences that the beating 15

article focuses on. 16

CHAIRMAN VOLZ: Mr. Raubvogel, how close 17

are you to being finished? 18

MR. RAUBVOGEL: I'm five, 8 minutes. 19

CHAIRMAN VOLZ: Why don't we take a 20

break then. We have gone past where I wanted 21

to go before we took a break. 22

MR. RAUBVOGEL: This line of questioning 23

is all I'm going to do. I'm wondering if we 24

could just finish it up, and then I would be 25

68

done. 1

CHAIRMAN VOLZ: All right. 2

BY MR. RAUBVOGEL: 3

Q. I'll try to be faster. If you would look at 4

-- if you look at Cross-PG-8, please. 5

A. Did you want me to answer the prior question? 6

Q. Actually I'm going to ask you -- strike the 7

question please. I want to rephrase it. 8

If you would look at Cross-PG-8. And if you 9

would look at the section entitled measurement results on 10

page 6, and if you would look in the second paragraph, 11

under 4.1, does it state there the measurement location at 12

dwelling R is west of the turbine, 625 meters from the 13

nearest turbine, does it state that? Simply yes or no 14

does it state that? 15

A. It says that, but it's not the only location. 16

Q. Okay, excuse me. Let me -- I'm just asking 17

you whether it states that. 18

A. There are other distances. 19

Q. Okay. The measurement location at dwelling P 20

is 870 meters south of R. That the 750 meters distant 21

from the nearest turbine, does it state that? 22

A. It states that. 23

Q. Third dwelling Z is 280 meters west of the 24

single two-speed turbine, does it state that? 25

69

A. It states that. 1

Q. Okay. Thank you. If you would look at 2

Cross-PG-11. This is a page from prefiled exhibit which 3

was -- original exhibit was UPC-CRV-6. And if you look at 4

the-- first of all, the table here appears to be the 26 5

turbine configuration. There are 26 turbine ID locations; 6

correct, on that table? 7

A. Yes. 8

Q. And then there is a map on the next page which 9

shows the location of those turbines; correct? 10

A. Correct. It's not the current layout. 11

Q. I understand that. Does this -- if you would 12

look at the table, are there a variety of mean hub height 13

wind speeds that are indicated on this table? 14

A. Yes. 15

Q. To your knowledge is there any intervening 16

topography in the Rhede Wind park -- at the Rhede Wind 17

park or at the receptors, is there any intervening 18

topography to your knowledge? 19

A. No. 20

Q. Okay. And all of those receptors are in the 21

same direction relative to wind, they are all west of the 22

turbines; correct? All of those receptors are west of the 23

turbine string; correct? If you would again look at -- 24

you can look at PG-9A. 25

70

A. Well no. If you look at The Beat is Getting 1

Stronger, which was PG-8, the figure in there shows, 2

depending upon which turbine, which receptor you choose, 3

it could be northwest, or west, or southwest or south 4

southwest, or north northwest. 5

Q. They are all to the west of the turbine 6

string, correct? None of them are to the east of the 7

turbine string? 8

A. None of them are to the east. 9

Q. None of them are due south of the turbine 10

string? 11

A. None of them are exactly due south. One is 12

almost due south. 13

Q. Which is the one that you're saying is almost 14

due south? 15

A. Receptor A turbine 16 location. 16

Q. Receptor A is due west of several turbines, is 17

it not? 18

A. I said that receptor A is almost due south of 19

turbine 16. Your question -- 20

Q. Okay, that's fine. 21

A. Was all encompassing. 22

Q. It is directly due west of several turbines, 23

is that true? 24

A. The configuration of the receptors and the 25

71

turbines -- 1

Q. That's not -- the question is it directly due 2

west of the turbines -- of several turbines, receptor A? 3

A. It's west of some. South of others. 4

Q. Okay. Do you have any information that would 5

suggest that the wind speeds being experienced by the Van 6

den Berg -- by the Rhede Park turbines varies? Do you 7

have any information which suggests there are differential 8

wind speeds experienced by those several turbines? 9

A. Wind speeds vary anywhere. I don't understand 10

the question. 11

Q. The question is, given the absence of any 12

intervening topography, wouldn't it be your expectation 13

that the wind speeds would be relatively constant as seen 14

at the hub heights of those various turbines? 15

CHAIRMAN VOLZ: You mean at any given 16

moment the wind speeds at the various turbines 17

would be all of the same? 18

MR. RAUBVOGEL: Yes. 19

BY MR. RAUBVOGEL: 20

Q. Wouldn't you expect that given the topography 21

in that area and given the proximity of those wind 22

turbines, that the wind speed would be, at any given 23

moment, very similar as between those turbines? 24

A. No. Thermal turbulence alone could produce 25

72

instantaneous wind speeds that were quite different across 1

a turbine array such as that at the Rhede Wind park. 2

Q. Do you have any data that supports that from 3

that wind park, do you have any data on that point? 4

A. No. I don't have data. But I have an opinion 5

as an expert in meteorology. 6

Q. And you made -- you made reference in your 7

testimony -- well first of all, you stated that impulse 8

noise will be audible in the evening at the sensitive 9

receptors within 2 kilometers of the turbines. And isn't 10

it true that Dr. Van den Berg has no data at that 11

distance, but only references a single noise complaint 12

from a residence at that distance? But has no actual data 13

from that distance? 14

A. No. That's not true. If we look back to 15

Cross-PG-8, The Beat is Getting Stronger journal article 16

by Dr. Van den Berg, he states on page 15 that their 17

experience and observations have been that pronounced 18

beating audible noise resembling distant pile driving 19

occurs in the distances of 700 to 1,500 meters, from the 20

Rhede wind farm. 1,500 meters is the exact same distance 21

that sensitive receptors lie from lines of 3 to 5 turbines 22

at this proposed Sheffield wind park. 23

Q. So let's go back to my question. Your 24

testimony stated that based upon his study, residences up 25

73

to 2 kilometers would have this experience. My question 1

is, there is no data in that study, there are no 2

measurement data at 2 kilometers; correct? 3

A. Not at 2 kilometers. There is no 4

measurements. 5

Q. Well let's focus on my question. At 2 6

kilometers, in fact, the only information about 2 7

kilometers was a single noise complaint from a single 8

resident, correct? 9

A. I would have to go back and check. 10

Q. But your testimony, your testimony which is 11

based upon the Van den Berg study; correct? 12

A. Yes. 13

Q. Okay. And you're reaching a conclusion about 14

noise impacts two kilometers away based upon a single 15

complaint from a single residence at that distance? 16

A. No. I'm not basing my complaints on that. 17

Q. I'm asking you about that distance. I'm 18

asking you whether your conclusion that impacts would be 19

felt at two kilometers was based upon anything other than 20

a single noise complaint? 21

MR. JOHNSON: I think we have -- he's 22

asked the question several times, and the 23

answer seems pretty consistent that there is 24

other data here. 25

74

And the second thing if we are going to 1

move to introduce this exhibit, I think we 2

have a right to have the whole study 3

introduced under rule 106. 4

MR. RAUBVOGEL: Okay. 5

CHAIRMAN VOLZ: He hasn't introduced 6

anything yet, so you're jumping ahead. 7

MR. RAUBVOGEL: And I don't agree with 8

his characterization of the answer. Because 9

I'm trying to focus on his statement. His 10

conclusion to you, that the problem would 11

exist out to 2 kilometers, and I'm asking him 12

whether there is any data on that, and I'm not 13

getting an answer about that. 14

CHAIRMAN VOLZ: Actually you cut him 15

off. He actually answered it and then you 16

kept on going. Maybe you should listen to the 17

answer and give him a chance. 18

MR. RAUBVOGEL: My apologies. 19

THE WITNESS: Can I hear the answer to 20

that question? 21

BY MR. RAUBVOGEL: 22

A. On page 15 of the full document Cross-PG-8 23

which is Mr. Van den Berg's journal article, The Beat is 24

Getting Stronger, he states that his experience and 25

75

measurements are that from the distances of 700 to 1,500 1

meters from the Rhede wind farm, the turbines produced a 2

pronounced beating audible sound that resembles distant 3

pile driving. And I pointed out that those distances and 4

the turbine arrangements for the Sheffield wind park are 5

nearly identical to those at the Rhede wind farm. 6

Q. Okay. That doesn't really answer my question. 7

My question was what was the basis for your statement in 8

your testimony that the experience would be felt up to 2 9

kilometers. And my question was, what is the data that 10

you relied on for that two kilometer statement. And your 11

answer that you just gave relates to something at a 12

different distance. 13

A. No. No, it doesn't. The foundation of my -- 14

of my opinion in my prefiled testimony -- my prefiled 15

testimony actually says it refers to residents living up 16

to 2 kilometers away. So it includes the entire distance. 17

Q. Okay. So Mr. Guldberg, can you show me any 18

data that's in the Van den Berg article that relates to 19

the distance of 2 kilometers? Show me that data. 20

A. Not two kilometers specifically. 21

Q. Fine. Is that your answer that there is no 22

data at that distance? 23

A. He did not take measurements at 2 kilometers 24

specifically. He reports data and information for the 25

76

range of 700 to 1,500 meters, that's what it states, two 1

kilometers is -- 2

MR. JOHNSON: Let the witness finish. 3

CHAIRMAN VOLZ: Two kilometers is what? 4

THE WITNESS: If you round off 1,500 5

it's basically 2 kilometers. 6

BY MR. RAUBVOGEL: 7

Q. Really? 8

A. To the nearest kilometer. 9

Q. Okay. So it's your testimony that in the 10

absence of any data about two kilometers you're simply 11

rounding 1,500 meters to two, is that your testimony? 12

A. No. It's not. 13

Q. All right. I can -- 14

A. It's my testimony that the houses at the Rhede 15

Wind Park are the same distances, around 1,500 meters, as 16

they are here. 17

Q. Okay. 18

A. At the Sheffield wind park. 19

Q. You're aware that the article itself does not 20

focus on data with respect to 1,500 meters, it focuses on 21

those 3 homes that are at much shorter distances to the 22

wind park. You're aware of that; correct? 23

A. That's part of his information. I read you 24

the statement from page 15. 25

77

Q. That's simply a statement that is not 1

supported by the data in the article? 2

A. Are you asking me a question? 3

Q. Yes. That statement itself is not supported 4

by the actual measurement data that he provides in the 5

article. 6

A. I think Professor Van den Berg would be 7

surprised at that. It's a conclusion statement. 8

Q. I'm asking you whether you can find the data 9

in the article other than the data he presents for the 3 10

residences? 11

MR. JOHNSON: This is getting a little 12

repetitious. Again, I think he's explained 13

what the article says, what his conclusion is, 14

and what the basis for both are. And you 15

know, we are asking the same question again 16

and again. It's cumulative and asked and 17

answered. 18

CHAIRMAN VOLZ: It is kind of -- but 19

could you add to the question, is there 20

specific data in the article to support the 21

1,500? 22

MR. RAUBVOGEL: I think I've asked that 23

question about three different ways. 24

CHAIRMAN VOLZ: You haven't really asked 25

78

quite -- asked -- sometimes you make it in the 1

statement, in the form of a statement instead 2

of a question. And it's a little unclear 3

exactly what you're asking. Why don't you try 4

to rephrase in a very clear way, and let's get 5

an answer. I think the problem here is on 6

both sides. It's not just the witness. It's 7

the way the questions are being asked. 8

MR. RAUBVOGEL: All right. My 9

apologies. 10

BOARD MEMBER COEN: Mr. Raubvogel, this 11

Board is operating at quorum and you are 12

stretching the limits of our capacity. 13

MR. RAUBVOGEL: I understand. 14

CHAIRMAN VOLZ: In other words, one of 15

us can't leave the room. We both have to be 16

here. 17

MR. HERSHENSON: That was our 8 minutes. 18

CHAIRMAN VOLZ: And you're way over. 19

MR. RAUBVOGEL: I'm going to end there. 20

CHAIRMAN VOLZ: Okay. Why don't we take 21

a 5 minute break, 10 minute break. And we 22

will be back. Back at 11:30. 23

(A recess was taken) 24

CHAIRMAN VOLZ: We are back on the 25

79

record. And I think we are at the point where 1

the Board -- 2

MR. RAUBVOGEL: I need to ask first 3

exhibits to be admitted. 4

CHAIRMAN VOLZ: Sure. 5

MR. RAUBVOGEL: UPC would seek the 6

admission of UPC-Cross-PG-3, PG-4, PG-5, PG-6, 7

PG-7, PG-8, PG-11, PG-12, PG-13, PG-15, PG-16, 8

PG-17. 9

CHAIRMAN VOLZ: Any objection? 10

MR. JOHNSON: Well I think with respect 11

to -- 12

MR. RAUBVOGEL: We don't object to the 13

entire Van den Berg article coming in. I 14

didn't present it that way. But -- 15

MR. JOHNSON: Okay. So that's fine. 16

And PG-11 was the part of the original Garrad 17

Hassan report; is that correct? 18

MR. RAUBVOGEL: That's correct. PG-1 I 19

should say was already in. 20

MR. JOHNSON: We may have a similar 21

objection about PG-15. The ANSI standard, 22

whether the whole thing should come in or not. 23

And I can probably figure out on redirect. 24

CHAIRMAN VOLZ: All right. 25

80

MR. JOHNSON: Subject to that, I think 1

we don't have any other objections. 2

CHAIRMAN VOLZ: Okay. So -- 3

MR. RAUBVOGEL: Yeah. How does that -- 4

CHAIRMAN VOLZ: I'll admit them. And 5

you can ask for 15 to be supplemented if after 6

redirect you determine that's what you would 7

like to do. 8

(Exhibits UPC-Cross-PG-3, 4, 5, 6, 7, 8, 9

11, 12, 13, 15, 16 and 17 were admitted 10

into evidence) 11

BOARD MEMBER COEN: Are you consulting 12

with both your lawyers, Mr. Guldberg? 13

MR. JOHNSON: Just me. 14

BOARD MEMBER COEN: That's not what it 15

looked like. 16

MR. HERSHENSON: He asked me if I had a 17

document, one of the Van den Berg reports, and 18

I told him that I didn't have it with me. 19

CHAIRMAN VOLZ: I guess we are ready for 20

Board questions. 21

BOARD MEMBER COEN: Mr. Guldberg, you 22

provided testimony for the petitioner in the 23

Cape Wind project; is that correct? 24

THE WITNESS: That's correct. 25

81

BOARD MEMBER COEN: So you provided 1

information that basically said that the noise 2

levels for that project were in acceptable 3

range; is that correct? 4

THE WITNESS: Yes. Even more than that 5

they were inaudible. 6

BOARD MEMBER COEN: Okay. So what was 7

the difference in the -- in that project from 8

this project that had you come to that 9

conclusion? 10

THE WITNESS: Several differences. 11

BOARD MEMBER COEN: It was inaudible 12

from the shore, I assume, it was not inaudible 13

if you happened to be fishing in that area. 14

THE WITNESS: It would not be inaudible 15

if your boat was underneath the wind turbines. 16

That's true. The Cape Wind project is slated 17

to be located on a shoal. 18

BOARD MEMBER COEN: Right. 19

THE WITNESS: Which is a location where 20

boaters usually don't go if they value their 21

keels. And the closest point of land that 22

could be inhabited was 8,000 meters away, so 23

that is one distinction here whereas the-- I 24

believe the closest residence in Sheffield or 25

82

Sutton is about 820 meters away. The wind 1

turbines are 10 times the distance from 2

inhabited dwellings as they would be in 3

Sheffield. 4

BOARD MEMBER COEN: Was there a 5

difference in equipment? 6

THE WITNESS: There is -- there are 7

slightly different wind turbines. The Cape 8

Wind project has a 3.6 megawatt GE wind 9

turbine. It's larger in terms of size of 10

blades, and it turns at a slower rotational 11

speed. So the sound energy from the wind 12

turbine is shifted to a lower frequency, so 13

more -- 14

BOARD MEMBER COEN: Okay. 15

THE WITNESS: A greater percentage of 16

the sound energy from a single turbine 17

rotating is below the audibility threshold for 18

the human ear, just because it's shifted down 19

lower. The very low frequencies we don't hear 20

anything. Low frequencies we don't hear as 21

well as the human voice frequency. 22

BOARD MEMBER COEN: So the equipment is 23

different from what is being offered here and 24

you think that makes a difference as well? 25

83

THE WITNESS: That's one difference. 1

The equipment, the distance from land, and the 2

spacing. The third principal difference is 3

the turbines are spaced about a thousand 4

meters apart for Cape Wind. And they are 5

about maybe 250, 300 meters apart for the 6

Sheffield wind park. They are much closer 7

together. 8

BOARD MEMBER COEN: Okay. Now I'm 9

certainly not an expert on these issues, I 10

guess I would be called your average person. 11

So at my house, my house sits a little bit on 12

a ridge, but in a bowl, and when the wind 13

blows is really howls out there, and you 14

cannot hear anything other than the wind 15

around the house from outdoors -- in terms of 16

outdoors noise when you open a window. 17

Up the ridge a little bit from where I 18

live, my neighbor has a net metered wind 19

turbine. And that turbine is obviously 20

different than the one -- either of the ones 21

we are talking about, either here or at Cape 22

Wind. It spins at a high rate in a high wind, 23

but again when the wind is blowing hard, 24

unless you really are under that turbine, you 25

84

cannot hear it. 1

So I guess my question is this, in terms 2

of the noise levels for these turbines, is it 3

your testimony that when the wind is blowing 4

hard, say around the school, and these 5

turbines are operating, can you really -- and 6

the wind is howling, can you really hear those 7

turbines above the noise of the wind? 8

THE WITNESS: It's a good question. It 9

illustrates that there is something specific 10

to this site that's important, and that's the 11

fact that the turbines are up on the ridge -- 12

BOARD MEMBER COEN: Yes. 13

THE WITNESS: -- of the mountain. And 14

the most sensitive areas of habitation are 15

down on the -- down at the base of the 16

mountain. 17

BOARD MEMBER COEN: Right. That's why 18

I'm using the comparison. Yes. 19

THE WITNESS: And unlike say the Cape 20

Wind or the Rhede Wind Park that are flat 21

terrain relatively, you can have different 22

winds where the receptors and the source are, 23

so you can have an appreciable wind up on the 24

ridgetop turning the turbines, at the same 25

85

time in the lee of the mountain, down in the 1

hollow, there could be almost no wind. 2

BOARD MEMBER COEN: But if you have a 3

wind both in the hollow and at the ridgeline, 4

can you hear the turbines over the noise of 5

the wind? 6

THE WITNESS: I don't know because 7

testimony and evidence hasn't been presented 8

specific to that question. 9

BOARD MEMBER COEN: Okay. All right. 10

The other question I have in regard to the 11

school is the school is in a pristine area. 12

And the intent of the school, from what we 13

have read and talked with folks, is to prevent 14

as much noise as possible. However, it is not 15

located as pristine as it might be, it's not, 16

you know, like a ranch off a dirt road where 17

the only entrance is -- it is on, in fact, 18

public roads. And when your noise sensors 19

take -- have they taken into effect the kind 20

of traffic along those roads and the noise 21

that they might make? 22

THE WITNESS: I have not collected any 23

noise measurements myself for this project. 24

The ones we have been talking about baseline 25

86

measurements, the closest location is labeled 1

M-1, in the applicant's case, and that's taken 2

at a house that's on that road. One of the 3

critiques I had in my prefiled testimony was 4

that the baseline measurements didn't 5

represent the quietist locations at the 6

school, which would be the girls' dormitory, 7

that's about 1,500 feet off the public road. 8

It really is, I believe, the Board visited 9

that location on the site visit. 10

BOARD MEMBER COEN: Right. Many of the 11

other buildings are right on the road. 12

THE WITNESS: The other -- the 13

administration buildings and the school 14

buildings are on that road, yes. 15

BOARD MEMBER COEN: So you don't have 16

any information as to other than that one 17

sensor that you were able to review the data 18

from, in regard to being on that road as to 19

whether, you know, the amount of noise that 20

comes on to that road; is that correct? 21

THE WITNESS: I don't have any other 22

data. No, sir. 23

BOARD MEMBER COEN: That's all I have. 24

MR. FABER: Good morning. I want to ask 25

87

you about an exhibit that Mr. Raubvogel 1

presented. It's a rebuttal testimony 2

presented in a Cape Wind case. 3

THE WITNESS: Yes. 4

MR. FABER: It's marked PG-6. It's an 5

excerpt of your rebuttal testimony. 6

THE WITNESS: I have it. 7

MR. FABER: And your answer there, there 8

is only an excerpt of your answer that Mr. 9

Raubvogel asked you about. Are you speaking 10

about the noise from the entire wind turbine, 11

or are you speaking mainly to the noise 12

produced from the gearbox and the nacelle 13

housing? 14

THE WITNESS: Which line are you 15

referring to? I'm sorry. 16

MR. FABER: Let's see. The page 9, your 17

answer, the excerpt of your answer printed at 18

the top there. And at the end of that you 19

summarize the new generation of quiet turbines 20

are used throughout Europe in locations as 21

close to a quarter to a half mile without any 22

audible noise. But above there you seem to be 23

speaking about nacelle noises and gearbox 24

noises. 25

88

I was wondering are you speaking about 1

the noise from the entire turbine or -- 2

(Mr. Burke arrived) 3

THE WITNESS: From the entire turbine. 4

The context for this statement was that the 5

person whose testimony I was going up against, 6

in that case was presenting some very high 7

sound power levels with rather extreme tonal 8

qualities, as his testimony of what the Cape 9

Wind project was going to sound like. And 10

what he was doing was using data from what we 11

call the old downwind machines, that were 12

predominant in the 1980s, which had a lot of 13

noise problems, and averaging those together 14

and saying this is what it's going to sound 15

like out in Nantucket Sound and on the shore. 16

You're going to hear all this noise. 17

His name was Mr. Bender, and I was 18

pointing out to the Board in this case that, 19

you know, it's apples and oranges, the turbine 20

to be built here is a new upwind machine by 21

GE, you know, it's gone through all the IEC 22

testing, it doesn't have any tonality by IEC 23

standards. They have redesigned everything to 24

quiet the sound from the generator and the 25

89

nacelle. It's just nothing like the 1980s 1

turbine, so that was the context of that 2

answer. 3

MR. FABER: So the machines you were 4

talking about here are similar to the Clipper 5

machines being proposed in this project, is 6

that true? 7

THE WITNESS: Similar in the sense that 8

they are much quieter than they were 25 years 9

ago. Yes. 10

MR. FABER: Okay. So when you say these 11

quiet turbines, this generation of quiet 12

turbines, that would include the Clipper 13

turbines here? 14

THE WITNESS: In terms of a generation, 15

yes, it would. But understand my statement 16

there is dependent upon what the background 17

sound levels are. So for example, let's take 18

an typical upwind design turbine today with a 19

sound power level of 105. And let's go out a 20

quarter mile, because Mr. Raubvogel asked me 21

to read that statement so he could put it on 22

the record that I stated it could be -- could 23

be quiet as close as a quarter to half a mile 24

which is what it states in my Cape Wind 25

90

testimony here. 1

So at a quarter of a mile the spreading 2

of the sound waves would take that sound power 3

level of 105 down to 45 in terms of a sound 4

pressure level. No other effects, ground 5

absorption or anything else, involved. If we 6

assumed that this was a well-designed turbine, 7

and there is a whole mix of manufacturers out 8

there with different products. If we use this 9

was a wind turbine that had gone through full 10

IEC testing, established that there was no 11

audible tones, per the IEC wind turbine 12

standards, and the broadband sound level from 13

that was 45 decibels, at a quarter mile, the 14

question becomes what is the existing sound 15

level? 16

In an inhabited area of Europe, the 17

existing average sound level could very well 18

be 45 or 50 decibels. Depending upon the 19

density of development. If instead you were 20

talking about a highly rural area in northern 21

Vermont, the existing sound level might be 20 22

to 25 decibels. So you need to understand a 23

location for the wind park to answer the 24

question. Would a new generation of wind 25

91

turbine be audible at a quarter mile. And the 1

answer is in some cases, yes, some cases no. 2

It depends upon the background sound level. 3

MR. FABER: Okay. Thank you. 4

THE WITNESS: You're welcome. 5

MR. FABER: Mr. Hershenson asked you 6

about the standards for the Energy Facilities 7

Siting Board in Massachusetts. And you stated 8

that they were lower than the 55 decibels used 9

by the EPA. 10

THE WITNESS: They are generally more 11

restrictive. In that that Board requires an 12

energy project to present a design with 13

mitigation that would meet their policy 14

guideline of no more than a 6 decibel increase 15

above the L-90 baseline. And understand that 16

that's a moving standard. If you had an 17

energy project in an urban area, the L-90 18

baseline would be relatively high. If you had 19

it out say in Boston. If you had a wind 20

turbine project out in the Berkshires of 21

Massachusetts, in a rural area, the L-90 would 22

be relatively low. So they would be, in 23

essence, imposing a different requirement on a 24

wind turbine or any other sort of energy 25

92

project, depending upon how quiet or unquiet 1

it is today in the area. 2

MR. FABER: Do you know what the basis 3

for that type of standard is? How they 4

developed that? 5

THE WITNESS: I don't. I don't know for 6

a fact. But my guess is that it's an offshoot 7

of the long-standing DEP noise policy in the 8

state. Which actually is a regulatory 9

standard that sets a 10 decibel increase above 10

the L-90. And it probably is just one Board 11

saying oh, we are going to be a little more 12

stringent than another state agency. Kind of 13

one-upmanship. That's my guess. 14

MR. FABER: Okay. All right, thanks. 15

That's all I have. 16

CHAIRMAN VOLZ: Mr. -- 17

MR. McNAMARA: Mr. Guldberg, if I could 18

follow-up on Mr. Faber's last question, it's 19

my understanding that there have been some 20

wind turbines sited in the Berkshire area, in 21

northwestern Massachusetts. Are you familiar 22

with that? 23

THE WITNESS: I know there are -- I know 24

of two projects that are under consideration. 25

93

MR. McNAMARA: Okay. 1

THE WITNESS: I'm not aware of ones that 2

have been built. 3

MR. McNAMARA: Okay. What about in 4

Crimson on Mt. Wachusett? Do you know if 5

there are any wind turbines there? 6

THE WITNESS: There may be. I haven't 7

visited that turbine. No. 8

MR. McNAMARA: Okay. It seems then that 9

there is at least the possibility that wind 10

turbines could be sited in Massachusetts even 11

with this more stringent standard than the EPA 12

noise guidelines, would that be correct then? 13

THE WITNESS: That would be correct. It 14

would depend upon how much land the project 15

had to work with. In essence, how close the 16

turbines would be to the developer's property 17

boundary. How much buffering land he had to 18

nearby lands that would be zoned or possibly 19

zoned residential. The Massachusetts 20

standards refer to land that is zoned 21

residential and residential habitation. 22

MR. McNAMARA: Okay. Thank you. In 23

response to a question by Mr. Hershenson 24

earlier, you had stated some questions that 25

94

you think should be answered when looking at-- 1

one of those was where -- was whether the wind 2

turbine would be audible at the most sensitive 3

receptors. Now are you stating that 4

protection from noise -- for noise standards 5

should address the most sensitive receptors, 6

rather than the average receptor? 7

THE WITNESS: I think the Board should 8

consider both. I don't want to be 9

presumptuous. 10

MR. McNAMARA: So you're not suggesting 11

one or the other as an appropriate standard, 12

for instance? 13

THE WITNESS: Well I think it's 14

important to look at the people who would be 15

most directly impacted by a proposed project. 16

Certainly the kids in their dorm rooms at King 17

George School are more important than the 18

average citizen who lives in St. Johnsbury who 19

is not going to hear the noise from the 20

project. They should all be considered. 21

MR. McNAMARA: Okay. Thank you. 22

MR. JANSON: Mr. Guldberg, let me also 23

follow-up on Mr. Faber's question about the 24

EPA -- Massachusetts noise standards. In your 25

95

written testimony you presented what you 1

identified as five major deficiencies to UPC's 2

noise analysis. You did not list among them 3

the use of the EPA standard for comparison to 4

the modeled noise levels. 5

This morning you've talked to some 6

extent about use of relative standard such as 7

Massachusetts compared to the more I'll call 8

it an absolute standard for the EPA. I just 9

want to be clear, are you -- do you believe 10

that the EPA standard that UPC's consultants 11

used is an inappropriate standard for this 12

Board to use in assessing whether the 13

potential noise levels from this project would 14

be unreasonable and unacceptable? 15

THE WITNESS: I think it's a good 16

starting point. The EPA guideline provides a 17

good standard for broadband sound. If you 18

look at where it came from, it's really 19

designed only for that purpose. It's not 20

specific to a source that might have low 21

frequency noise, that might have impulse 22

noise. The one aspect of the EPA guideline in 23

terms of possibly not being protective enough 24

would be that it doesn't protect residents 25

96

from sleep disruption. There are more 1

stringent guidelines that would deal with the 2

noise someone would experience at night inside 3

of a bedroom and the potential for sleep 4

disruption. That gets into an area where 5

interpreting the data becomes quite 6

subjective. 7

MR. JANSON: In terms of what would be 8

inappropriate level for purposes of -- because 9

of possible sleep disruptive effects? Is that 10

the subjective aspect? Or -- 11

THE WITNESS: Well some people are more 12

sensitive to nighttime noise than others. So 13

if -- once you go down that path, you start 14

asking questions, okay, is it the average 15

person we don't want to wake up at night and 16

complain. Or is it the 10 percent of the 17

population that we know is very sensitive to 18

noise, as opposed to the average person. 19

Then you get -- you start straying away 20

from just saying well it's above or below 45 21

or 55 or some fixed number like that. I guess 22

you're correct. I did not give any prefiled 23

testimony on guidelines. But since the 24

question has been asked here, I might point 25

97

out that there is another UPC project 1

permitted with the same EPA guideline, the one 2

we are talking about, the LDN-55 which is 3

equivalent to 45 at night, and that project 4

has recently had noise complaints with regard 5

to sleep disruption. 6

So that's the project in Mars Hill 7

Maine. I think that makes the point that the 8

EPA guideline is a good starting point, but it 9

isn't necessarily going to ensure that a 10

project isn't going to cause sleep disruption 11

if people happen to live, you know, within a 12

mile, say within 15, 1,600 meters. 13

MR. JANSON: Thank you. 14

THE WITNESS: You're welcome. 15

CHAIRMAN VOLZ: I think what we will do 16

is take our lunch break now, and then we will 17

resume with redirect unless you have only one 18

or two questions. 19

MR. JOHNSON: I'm afraid I don't have 20

just one or two questions. 21

CHAIRMAN VOLZ: That's what I figured. 22

I thought we might as well wait and start that 23

at 1:15. Thank you. 24

(At which time the luncheon recess25

98

was taken.) 1

CHAIRMAN VOLZ: We are back on the 2

record. We are in the middle of 3

cross-examining Mr. Guldberg. I think we 4

still had another question for him up here or 5

two. 6

BOARD MEMBER BURKE: Mr. Guldberg, I 7

checked around to make sure this hadn't been 8

asked before so we weren't just beating the 9

horse. A couple of exhibits -- we may do that 10

anyway, but the exhibits -- there are a couple 11

of exhibits that have been introduced before 12

that involve studies that indicate that being 13

able to see the turbines makes the perception 14

of the noise greater. That the two work in 15

concert and actually have an increase in 16

power. 17

Is it your understanding that any of the 18

turbines after this reconfiguration are going 19

to be visible from the King George School? 20

THE WITNESS: I assume that they will be 21

visible at times from the King George School 22

on the ridgeline. 23

BOARD MEMBER BURKE: If in fact, most of 24

them are not, would that have an effect on the 25

99

amount of noise, in fact, does the undulation 1

of land actually disperse noise waves? 2

THE WITNESS: Undulation of land? 3

BOARD MEMBER BURKE: You know, ridges. 4

THE WITNESS: Terrain. If there is 5

terrain, earth at an elevation blocking the 6

line of sight from the hub of a particular 7

turbine down to where somebody is standing at 8

a house or at the school, that that would 9

attenuate the noise. So you would hear less 10

than if there wasn't that terrain blockage. 11

BOARD MEMBER BURKE: Is there any 12

particular method we can use other than just 13

measuring it after the fact, is there any 14

other method we could use to try to determine 15

what that effect might be? 16

THE WITNESS: The acoustic modeling that 17

has -- and more acoustic modeling could be 18

done, accounts for that. Because the models, 19

I'm trying to remember if it was sound plan or 20

or CADNA, C-A-D-N-A capital A, was used here, 21

those models bring in the digital terrain 22

files, give it the height of the hub for each 23

wind turbine. You give it the elevation of 24

where the receivers are, and it does those 25

100

line of sight calculations. 1

So that effect would be included in the 2

modeling that HMMH had done. In other words, 3

if there was a particular turbine in the back 4

of the array that didn't have a line of sight 5

to the school or the house because of this 6

terrain blockage, then it wouldn't be 7

accounted as highly as if there was a line of 8

sight. 9

BOARD MEMBER BURKE: And I understand 10

that you didn't do any of that modeling 11

yourself; is that correct? 12

THE WITNESS: I did no independent 13

modeling. 14

BOARD MEMBER BURKE: Okay. 15

CHAIRMAN VOLZ: Thank you. Redirect, 16

Mr. Johnson? 17

MR. JOHNSON: Yes. Thank you. 18

REDIRECT EXAMINATION BY MR. JOHNSON: 19

Q. You initially mentioned some noise sensitive 20

uses in the area in your testimony; is that correct? 21

A. Yes. 22

Q. And as an example you mentioned the King 23

George School girls' dormitory; is that correct? 24

A. I did. 25

101

Q. Why is the girls' dormitory particularly 1

sensitive? 2

A. For a number of reasons. Actually four 3

reasons. Start with its location, about 1,500 feet off of 4

I'm going to call it King George Road. I don't know what 5

the name of that road is. Names keep changing, but the 6

only public road that goes by there. 7

The existing sound levels at the girls' dorm 8

are extremely low. They are much lower than you would 9

find at the measurement site M-1 where the applicant's 10

consultant took sound level measurements. Second reason 11

would be the girls' dorm itself, and its orientation on 12

the land, is such that the back windows of that dorm which 13

is where the bedrooms are for the girls, look up the 14

mountain towards the proposed wind park. And if you go 15

into that dorm, you'll see that those windows are fairly 16

low on the wall, they are at the height of the tops of the 17

girls' beds. And the girls' beds are right next to the 18

windows. 19

Add to the fact that there are no air 20

conditioning units or other mechanical equipment outdoors 21

that would be running at night at the girls' dorms, that 22

on a summer night they open the windows for ventilation, 23

it's the only source of air, or cooling, they are sashed 24

windows, and when you open the bottom sash, half the 25

102

window is open, and if you lay on their beds, your ear is 1

no more than two to three feet from the open window. And 2

there is a direct line of sight from that open window -- 3

from the person's ear on the bed out the open window up to 4

the top of the mountain. So it's probably -- it's a 5

situation, the worst kind of situation you could construct 6

in terms of potential for sleep disturbance. 7

Third reason would be the distances from the 8

girls' dorm up to the four closest turbines, wind 9

turbines, are 1,500, 1,700, and 1,800 meters. So they are 10

in that range of where impulse noise is possible given the 11

work of Professor Van den Berg. If you -- and I guess the 12

fourth reason would be if you look at the latest layout 13

for the wind farm, which would be UPC-CRV-SSRB-2-B 14

exhibit, you'll see that there are three to four wind 15

turbines at the distances I just mentioned that are lined 16

up and roughly equidistant from the girls' dorms. 17

So the spacing of those turbines similar to 18

what you find in the Rhede wind park, the distances are 19

similar, the orientation in terms of a sensitive receiver 20

being perpendicular to a line of turbines exists, you have 21

very low sound -- existing sound levels, because of the 22

rural location, and the fact that it's about 1,500 feet 23

off of a public road. So there is no traffic at night 24

going up and down the access road to the girls' dorms once 25

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they are in there. They don't have cars on campus by the 1

way. They move by shuttle bus down to the main 2

classrooms, and the particular orientation of their 3

bedroom windows, the height, the orientation of their 4

beds, and the fact that lying on their beds you'll be able 5

to hear a sound clearly, almost as clearly I would say 6

indoors as you would outdoors, and those sounds will be 7

coming down the mountain from the wind turbines. I think 8

would make this a location susceptible to noise impacts 9

from the proposed project. 10

Q. Thank you. I think you were asked about car 11

noise on the King George Road which is the public road 12

nearby, not Dareios Road, which is a private road. And I 13

think you just said, and correct me if I am wrong, that 14

the girls' dormitory is about 1,500 feet away from the 15

main road; is that correct? 16

A. Yes. 17

Q. And although you disagree with the work HMMH 18

did, did the work, that background monitoring they do, 19

account for or take into account car noise? 20

A. It picked up the noise from cars. Yes. On 21

those two days when they were running the monitor at M-1. 22

Q. And they still documented low background 23

noises, background levels; is that correct? 24

A. Their levels are relatively low, in the range 25

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of 23 to 24 at night. 1

Q. Mr. Raubvogel asked you about logging in the 2

area. Is logging a constant activity? 3

A. It's not constant. In that it goes on 24 4

hours a day. It occurs for certain periods of time when 5

someone is logging in an area, then after the trees are 6

gone, they move on to a different area. 7

Q. And is the point source from say a chain saw 8

at ground level or 260 feet in the air? 9

A. The chain saws are usually operated near 10

ground level. 11

Q. Okay. Does the fact that it's operated at 12

ground level enhance or decrease the amount of noise you 13

experience? 14

A. It decreases it, because there is going to be 15

absorption by the soft ground that's nearby and also by 16

the surrounding vegetation. By contrast, if you had the 17

same sound level, sound power on a tower, 250 feet above 18

the ground, there will usually be a clear line of sight 19

from the top of that tower, in other words, where the wind 20

turbine would be, to a receiver without any intervening 21

ground absorption or vegetation. 22

Q. When are people most sensitive to disturbances 23

by noise? 24

A. Late at night when they are trying to sleep. 25

105

Q. And would you say all other things being 1

equal, are adolescents with learning disabilities and 2

psychiatric disorders including depression, anxiety, and 3

other disorders more or less sensitive to sleep 4

disturbance? 5

MR. RAUBVOGEL: Objection. I think we 6

are well beyond my cross, and I think we are 7

beyond this witness's testimony. 8

CHAIRMAN VOLZ: Any other objection? 9

MR. JOHNSON: He's an expert on noise. 10

CHAIRMAN VOLZ: Right. 11

BOARD MEMBER COEN: This is redirect. 12

MR. JOHNSON: I think the next question 13

will wrap it up. 14

CHAIRMAN VOLZ: What's the response to 15

Mr. Raubvogel's objection to this question? 16

MR. JOHNSON: He asked him about 17

logging. And I'm asking -- and this is the 18

third in a series of questions about logging. 19

The next question will wrap it up. 20

MR. RAUBVOGEL: This question has 21

nothing to do with logging. His question is 22

now trying to establish whether adolescents of 23

a certain type might be impacted. I mean it's 24

completely beyond --25

106

CHAIRMAN VOLZ: I'm questioning whether 1

this witness has the expertise to answer that 2

question. Maybe he does. I don't know. 3

MR. JOHNSON: I think he does. 4

CHAIRMAN VOLZ: This is beyond the scope 5

of the cross. 6

MR. JOHNSON: Okay. Thank you. 7

CHAIRMAN VOLZ: So the objection is 8

sustained. 9

BY MR. JOHNSON: 10

Q. You -- your testimony was just that people are 11

more sensitive to noise at night; is that correct? 12

A. They are. 13

Q. Okay. Are you aware of people operating chain 14

saws at night except in horror films in general? 15

A. No. I'm not. 16

Q. Okay. But a wind park, by contrast, would 17

have a tendency to operate 24 hours a day; is that 18

correct? 19

A. The operation of the wind park depends upon 20

the winds available upon the ridgeline, not the time of 21

day. 22

Q. Okay. And Mr. Raubvogel asked you about UPC's 23

Cross PG-6. 24

A. Yes, I have that. 25

107

Q. And he asked you about the question on page-- 1

or the sentence on page 9 lines 13 to 15, you were going 2

to add something in response to his question. And I don't 3

know whether the questions from the Board allowed you to 4

clear that up or not. Did they? 5

A. I believe a question from the Board did allow 6

me to expand my answer. What I wanted to say was that 7

whether a particular turbine of any design, is audible or 8

not at one quarter of a mile, depends upon the background 9

sound levels. And in Europe you find sites that are 10

mostly in built-up areas that have relatively high 11

background sound levels. Dissimilar from the rural 12

environment in Sheffield and Sutton, Vermont, where the 13

background levels are lower. 14

Q. Now if I could have you turn to what's marked 15

PG-15. This is the ANSI standards. 16

A. Yes, I have it. 17

Q. Mr. Raubvogel, had you read or read to you, I 18

don't remember, two sentences on page 15 of this standard. 19

A. Yes. 20

Q. What else does that standard have to say about 21

its use for analyzing tonality? 22

A. Well it makes a very important statement and 23

that's on the face of the document. Which is included in 24

UPC-Cross-PG-15 that Mr. Raubvogel handed to me. On the 25

108

front it says the standard, and I quote, the standard does 1

not address other effects of noise such as sleep 2

disturbance or health effects. In other words, this is 3

the most lenient of definitions of tones that you can find 4

in the literature. As I was mentioning in my answer to 5

Mr. Raubvogel's question about this exhibit and PG-16, on 6

the Cape Wind project we looked at three tone audibility 7

criteria, the ANSI standard is the most lenient one and 8

does not address sleep disturbance. 9

Q. Mr. Raubvogel and the Board asked you about 10

the Cape Wind project. And turning now to PG-16, did you 11

have tonality data that conforms to the IEC standards for 12

the Cape Wind project? 13

A. Yes. We had a full IEC compliance report in 14

conformance with IEC standard 61,400-11. 15

Q. So although he's referenced spots in the -- 16

this report where you discuss the ANSI standards, you had 17

-- did you have the data necessary to perform an IEC type 18

analysis? 19

A. Yes. But I didn't perform the analysis. The 20

tonal audibility analysis is performed by a separate 21

testing firm, that was a German testing firm that did the 22

testing for the GE 6.3 megawatt wind turbine. And it 23

presented all of the narrow band analysis and tests with 24

regard to the IEC tonality criteria, and showed that there 25

109

were no audible tones. 1

Q. Did you have more data for the -- your work on 2

Cape Wind than UPC has here? 3

A. Much more data. 4

Q. Okay. Is the GE turbine that you analyzed and 5

that's proposed for the Cape Wind project -- is the GE 6

turbine that was proposed for the Cape Wind project as 7

tested -- as the Clipper turbine proposed here? 8

A. It's been tested more thoroughly. If I'm to 9

judge from the information that UPC has provided on the 10

Clipper turbine. 11

Q. And I think in response to one of the Board's 12

questions you stated some assumptions about a well 13

designed turbine. Are all those assumptions applicable to 14

the Clipper turbine here? 15

A. Help me out with what assumptions specifically 16

you're referring to. 17

Q. I believe they referred to the amount of data 18

collected, the -- whether there were tones, audible tones 19

or tonality existing in the data. 20

CHAIRMAN VOLZ: What I heard you say was 21

some of the modern turbines have been through 22

some type of IEC testing for sound, and this 23

may be related -- I think this is related to 24

what Mr. Johnson is asking. 25

110

MR. JOHNSON: I think so. 1

CHAIRMAN VOLZ: And a question I had was 2

do you know whether the Clipper turbine has 3

gone through that same type of IEC testing or 4

not? 5

THE WITNESS: If I'm to believe the 6

answers that we got on discovery, it has not, 7

because I've requested twice the IEC test 8

compliance reports, on the turbine proposed 9

for this project, and we have been given none 10

of those reports and told that they were not 11

available. 12

CHAIRMAN VOLZ: Okay. Thank you. 13

BY MR. JOHNSON: 14

Q. You have been asked a number of questions 15

about Mr. -- Professor Van den Berg's testimony. 16

A. Yes. 17

Q. Has Mr. Van den Berg published more than one 18

article on this phenomenon? 19

A. He's published several journal articles. He 20

also has presented at one or two conferences. 21

Q. Okay. So is doctor -- Professor Van den 22

Berg's work peer reviewed? 23

A. It certainly has been peer reviewed for the 24

two professional journals in the Science of Acoustics. 25

111

That are on the record as exhibits in response to 1

discovery. 2

Q. Are you aware of substantive criticisms of 3

Professor Van den Berg's work? 4

A. I haven't seen any published. 5

Q. Mr. Raubvogel asked you a series of questions 6

in reference to the two kilometer reference in your 7

prefiled testimony. 8

A. Yes, he did. 9

Q. Where does that appear in Mr. -- Professor Van 10

den Berg's work? 11

A. It is in the paper that he presented to 12

EuroNoise, that's all one word E-U-R-O connected with 13

noise, 2003, and the title of his talk there was Wind 14

Turbines at Night, Acoustical Practice, and Sound 15

Research, by Fritz Van den Berg, and on page 3, he talks 16

about hearing impulse noise from wind turbines two 17

kilometers away. And this document was one of several 18

written by Mr. Van den Berg that were produced in response 19

to discovery, I believe. 20

Q. And Mr. Raubvogel asked you a number of 21

questions about the layout of the Rhede Wind park. 22

A. Yes, he did. 23

Q. Looking at the UPC surrebuttal exhibit, are 24

there uniform aspects to the Sheffield project as well? 25

112

A. There are. And there is an interesting 1

comparison between that and the line of 10, I call it, 2

that Mr. Raubvogel had me point out. And Mr. Van den 3

Berg's journal article entitled The Beat is Getting 4

Stronger. If we look at Exhibit UPC-CRV-SSRB-2-H-B which 5

is the latest and revised turbine layout for the UPC Wind 6

farm, and part of the surrebuttal case from the applicant, 7

you'll notice that there are 11 turbines roughly in a line 8

running southwest to northeast from Granby Mountain over 9

to the northeast corner of the project. And if you draw a 10

rough line through those, that line is perpendicular to 11

the line of sight from the girls' dorm at King George 12

School. 13

More specifically, you could look at groups of 14

turbines for what I believe is the house on new Duck Pond 15

Road, which in some exhibits has been labeled Duck Pond 5 16

by the applicant, and you look to the -- roughly to the 17

east. There is a line of four turbines roughly 18

equidistant up on Granby Mountain. If you're at the 19

location of several homes along route 5 to the north of 20

the project, near a location labeled Perry on this 21

exhibit, and you look south into the project area, there 22

are three turbines roughly equidistant, 1,500 meters, and 23

I think as I mentioned this morning, if you stand behind 24

the girls' dormitory at the King George School and you 25

113

look up the mountain, there are four turbines that are 1

roughly equidistant in the range of 1,500 to 17 or 1,800 2

meters in a line there. 3

Q. Mr. Raubvogel also asked you about what you 4

call I think the Verizon case you worked on. 5

A. Yes, he did. 6

Q. And he asked you about the monitoring that you 7

did in that case? 8

A. That's correct. 9

Q. Why did you perform background monitoring in 10

that case? 11

A. It was performed for a very different reason 12

than was performed in the current case. At the Verizon 13

case, the purpose of the sound study, and if you look at 14

Exhibit UHS/RPI point 2-2.5, which is my prefiled direct 15

testimony before the Vermont Environmental Court on that 16

case, in its entirety, you'll see that the objectives of 17

the study were primarily to determine compliance of the 18

emergency generator and other equipment with a bylaw in 19

the City of Newport, Vermont, that sets a decibel limit of 20

70 decibels. In addition a secondary objective was to 21

characterize the existing sound environment. The second 22

objective did not bear on the compliance demonstration. 23

But I had been asked by the court to provide some 24

perspective for them, so we took short-term measurements 25

114

during the morning, afternoon and at night, in Newport to 1

characterize what the average sound levels were and 2

presented those in the report. 3

We did not do an audibility analysis, the 4

purpose of taking those measurements was not to determine 5

whether or not the mechanical equipment of Verizon would 6

or would not be audible. And in fact everyone 7

acknowledged it would be audible whenever it ran the 8

emergency generator in particular. 9

Q. Mr. Raubvogel also asked -- referenced a case 10

that we might know as the Rivers' case. 11

A. Rivers' Quarry. 12

Q. Rivers' Quarry case? 13

A. In Moretown. 14

Q. Thank you. Was long-term monitoring done in 15

that case? 16

A. Yes. We had some long-term monitors out on 17

that case. 18

Q. Okay. Mr. Janson asked you a question about 19

whether the EPA standard would be inappropriate for this 20

-- to apply to this project. And I'll ask the opposite I 21

guess. Is the EPA standard the appropriate one to protect 22

the residents in this case from sleep disturbances and 23

annoyance? 24

A. It's not for three reasons. This particular 25

115

site has very low baseline sound levels, secondly -- 1

MR. JANSON: Excuse me, Mr. Guldberg. 2

This particular site being the girls' 3

dormitory at the King George School or just 4

generally the project? 5

THE WITNESS: Generally that the closest 6

residences and the King George School, but the 7

area itself is, as you know, very rural and it 8

has very low nighttime sound levels. 9

MR. JANSON: You're speaking generally 10

for the vicinity? 11

THE WITNESS: Generally for the 12

vicinity. The second reason the EPA guideline 13

is not appropriate for this project in this 14

specific location is that standard does not 15

address tonal noise or impulse noise that the 16

UPC Wind project would produce. The third 17

reason goes back to the foundation of that EPA 18

guideline, if you look in the EPA publication 19

where the guideline is discussed and 20

developed, you'll see that it was developed to 21

prevent what's called speech interference 22

outdoors. 23

In other words, if we are walking or 24

talking outdoors, and there is a noise, you 25

116

want that noise to be quiet enough that when I 1

talk to you, you can understand what I'm 2

saying. You can understand 95 percent of what 3

I'm saying. If that noise is too loud, it's 4

hard to talk over the noise. That's a rather 5

lenient standard. 6

So the EPA guideline's designed to 7

protect against speech interference and 8

activity interference outdoors in residential 9

areas. It's not specifically designed to 10

prevent against annoyance or sleep disruption. 11

BY MR. JOHNSON: 12

Q. Is there a -- is there a number the Board 13

could choose or affix on based on the information UPC has 14

presented? 15

MR. RAUBVOGEL: Objection. It seems 16

like Mr. Janson asked him this question 17

already. And he already gave an answer to it. 18

As to whether there was a specific number that 19

he would recommend. 20

CHAIRMAN VOLZ: Mr. Johnson, do you have 21

a response? 22

MR. JOHNSON: I guess if there was a 23

question I thought it was distinct from the 24

question I'm asking. I would defer to Mr. 25

117

Janson. 1

(Pause) 2

CHAIRMAN VOLZ: We think this question 3

is within the scope of redirect, and we don't 4

think it's exactly the same as what Mr. Janson 5

asked. So go ahead. 6

BY MR. JOHNSON: 7

Q. Do you have that question in mind? 8

A. Yes, but give me a minute. 9

Q. Okay. 10

A. Certainly Mr. Menge and I have differences of 11

opinion in terms of the potential noise impacts from the 12

project. But I think the Board would certainly be on firm 13

footing if they set a maximum sound pressure level from 14

the project equal to those represented by the applicant in 15

their most recent table of modeling results. 16

Specifically this is Exhibit UPC-CB-SSRB-1 17

corrected table one, computed wind farm noise levels. In 18

particular, at the King George School dormitories receiver 19

Dareios-1 which is the girls' dormitory, the applicant has 20

stated that the maximum sound level would be no more than 21

30 A-weighted decibels. Similarly at the closest house 22

they have stated in this table that the maximum sound 23

level would be no greater than 31-A weighted decibels for 24

any operating condition. 25

118

I would also recommend that that be paired 1

with the representations made by the applicant in the HMMH 2

noise report where they state that there would be no tonal 3

noise from this project that would be audible, so that is 4

one numerical limit that the Board might consider. 30 5

decibel limit maximum at the school and 31 at any house 6

paired with no audible tones. 7

MR. JOHNSON: Thank you. That's all I 8

have. 9

CHAIRMAN VOLZ: Mr. Gregory. 10

MR. GREGORY: Could I ask one question? 11

CHAIRMAN VOLZ: Sure. 12

CROSS EXAMINATION BY MR. GREGORY: 13

Q. Mr. Guldberg, just help me out or clarify me. 14

When these studies are done by the petitioner, these noise 15

impact studies, does that take into account one turbine 16

for the -- or the complete 16 turbines when they are under 17

operation? 18

A. If you're referring to the HMMH report, it 19

takes into account the 16 turbines. 20

Q. So all of them under operation? 21

A. Yes. 22

MR. GREGORY: Okay. Thank you. 23

CHAIRMAN VOLZ: Thank you. You're 24

excused unless -- did you have additional 25

119

questions? If you do, I mean it's got to be 1

-- 2

MR. RAUBVOGEL: I've got a couple. 3

CHAIRMAN VOLZ: Okay. 4

RECROSS EXAMINATION BY MR. RAUBVOGEL: 5

Q. You were talking about the girls' dorm and you 6

stated that the sound levels there would be lower than 7

what was measured at site M-1. That statement is not 8

based on any data that you've collected, is it? 9

A. No. It's based on my professional experience 10

and opinion. 11

Q. It's not based on data. Okay. You stated 12

that the turbines would be visible lying on the bed 13

looking out the window because you said the mountain was 14

visible; is that correct? 15

A. Yes. I stated that. 16

Q. You haven't done any cross sections to 17

actually determine whether the turbines would be visible 18

from any particular location, have you? 19

A. I haven't done a cross section. But I know 20

that the turbines will be audible outside of that bedroom 21

window as evidenced by the acoustic modeling prepared by 22

HMMH, and when you lie on the beds of the girls who live 23

in those dorms, you're essentially putting your ear next 24

to the window screen of that open window. 25

120

So if there is 30 decibels outside that 1

bedroom window, lying in their bed they are going to hear 2

close to 30 decibels indoors. If instead, in my opinion, 3

the sound level is going to be 10 to 12 decibels higher 4

than that, it may be 40 decibels at sometimes outside that 5

bedroom window when the window is open, and they are 6

trying to sleep lying in the beds, you're going to hear 7

close to 40 decibels in that bedroom. 8

Q. My question was a little simpler. It was 9

simply you're not stating that there is a line of sight 10

necessarily from any particular spot in that dorm to any 11

particular turbine. You don't know that. 12

A. I don't know that. But if there is a line of 13

sight outside of the dormitory to those turbines, then 14

there is a location within that bedroom where that same 15

line of sight exists on the other side of the window 16

screen. 17

Q. But it would depend upon where you're standing 18

-- you haven't done that analysis; is that correct? 19

A. I haven't done that level of analysis. No. 20

Q. It sounds like what you're saying with respect 21

to the sound levels in the girls' dorm with the windows 22

open, is that there is -- you've now taken the 17 dB of 23

potential attenuation, and you've zeroed it out to 24

nothing, that's your testimony, is it? 25

121

A. I've said in certain locations, certain beds 1

in that dormitory, yes, it would be zero. 2

Q. It would be zero? 3

A. And in other locations if you were around -- 4

if you were around the corner, you know, somewhere else in 5

that room it might be 15 to 17. It's an interesting 6

question. 7

Q. And if you were a foot away from the window on 8

the bed, you're saying it would be zero or it would be 9

something between zero and 17? 10

A. It would be probably close to zero, you know, 11

this question has intrigued me. Because noise 12

consultants, myself included, have used this 15 to 17 13

decibel number repeatedly in reports that we have done. 14

And it's always bothered me like well how could it be one 15

number. 16

So I did some measurements myself using a pure 17

tone generator outside of a bedroom window, and found that 18

if you stand right in front of the open window, the 19

difference between indoors and outdoors is zero, if you're 20

standing at the window screen. 21

Q. If your ear is at the window screen? 22

A. If you're within a foot. If you're standing 23

in front of it. I held the sound level meter within a 24

foot. If you back up another foot or two, so you're two 25

122

to three feet away, it drops maybe one or two decibels 1

from what is measured outdoors. Now if you move sideways 2

so that you're not lying in front of the bedroom window or 3

you're across the room, then the edge of the wall acts as 4

if it's a noise barrier and the sound has to defract 5

around the edge of the open window as if it's a noise 6

barrier, in order to propagate into the room. 7

And then as you move to different locations in 8

the room, it drops to a reduction of five, 10, and if you 9

go into a far corner where you're not close to the open 10

window or if you crack the window just a little bit, so 11

that nobody would be right in front of it, you couldn't be 12

-- because the crack is so small, you'll get into the 13

range of 15 to 17. 14

So there is a whole range of attenuations, and 15

the number that noise consultants, myself included, have 16

thrown out there over the years, and it comes out of that 17

same EPA guideline document by the way, really refers more 18

to the maximum attenuation you would expect somewhere in 19

the bedroom. And there is a whole range of values. 20

Q. That is very interesting. But you didn't 21

think it was significant enough to qualify your statement 22

in that New York case where you stated it would be in a 23

cold climate state, where there is extra insulation, with 24

the windows open condition, you said it would be 17. 25

123

There is no qualification in that statement? 1

A. Yes. And as I just explained, Mr. Raubvogel, 2

noise consultants, myself included, have used that 3

statement unqualified for many years, and it's only in the 4

last year, and, in fact, it was the issues associated with 5

this case, that got me thinking about the fact that it 6

couldn't be a fixed number like that. And what is the 7

real number. 8

And I did some of my own research and tests, 9

with an open bedroom window to see what it really would 10

be. And then when I traveled up and saw the girls' dorm, 11

and came to our school, it occurred to me that the 12

reduction would be close to zero, possibly one to two 13

decibels inside. 14

Q. Okay. The EPA -- that was derived from an EPA 15

study you said? 16

A. It's in the EPA guideline document where the 17

EPA residential guideline number of 55, 45, that was used 18

by Mr. Menge originated. 19

Q. And that was based on average conditions, they 20

were not taking the most extreme? 21

A. They don't state. It's a simple statement in 22

there that you can use this rule of thumb, noise 23

consultants have picked it up and say hey, this is an easy 24

rule of thumb and we have all been using it so -- 25

124

Q. You stated that you asked for the Clipper data 1

in discovery, and received no additional data. In fact, 2

wasn't the answer to that UPC had no additional data in 3

its possession, it was not -- the statement was not that 4

there was no data. The statement was UPC had no data. 5

A. If there are data, I can't tell you who is 6

hiding it from the Board in this case. I assume if the 7

data existed, it was incumbent upon the applicant to go 8

and produce the information. So since I was told that no 9

data were available, I assumed that the testing had not 10

been done. 11

Q. Okay. Well that presumes; doesn't it, that 12

UPC had access to the data? 13

A. If the data exists, no, it doesn't. I mean -- 14

do you know? Was IEC testing done and not provided to us 15

as parties in this case? 16

Q. I'm asking you whether you recall that the 17

discovery answer was that UPC had no additional data in 18

its possession. 19

A. And I interpreted that to mean that none 20

existed. 21

Q. Do you recall that there is a letter in this 22

case labeled CB-Reb-2 in which Clipper states acoustic 23

testing was performed by Channel Island Acoustics in 24

accordance with IEC technical specifications 61,400, 25

125

14.2005-E and 61400-11, 2002-E. 1

A. Well that's very interesting because that 2

means that the information I twice requested in discovery 3

was deliberately not produced in this case. 4

Q. Well Mr. Guldberg, I'll ask you again. If UPC 5

-- 6

A. I'm flabbergasted. 7

Q. Could you focus on my question? If UPC did 8

not have any data in its possession, and it reported that 9

it had no data in its possession, then how -- then it is 10

not a fair inference that UPC deliberately did anything. 11

A. No. But if UPC knew such data existed but 12

chose not to get it or to produce it, they should have 13

stated so in their answer. That was not their answer. 14

Their answer was that it -- they didn't have it. 15

Q. That's right. If that's true, didn't you 16

state before that GE maintains its IEC based reports as 17

proprietary information? 18

A. Proprietary to the project teams, I had full 19

access to the IEC. 20

Q. You had no knowledge whether Clipper has 21

provided that to UPC, do you? Do you have any knowledge 22

that they have provided that to UPC? 23

A. At this point, I have no knowledge, and I'm 24

quite confused. 25

126

CHAIRMAN VOLZ: Could we get it? We 1

would like to have it. 2

BOARD MEMBER BURKE: We would like it. 3

CHAIRMAN VOLZ: You guys have the burden 4

of proof. And I'm not taking his testimony to 5

be that you did anything wrong in your 6

discovery response. But it's information that 7

we need, I think we need to have. So I think 8

you better try to get it or explain why it's 9

not available. 10

MR. RAUBVOGEL: Well my point is that 11

turbine manufacturers do not routinely provide 12

all the information. Now Mr. Guldberg made -- 13

THE WITNESS: That's not true. That's 14

not true. 15

CHAIRMAN VOLZ: Anyway there is no 16

pending question. 17

MR. RAUBVOGEL: I'm trying to address 18

your concern. 19

CHAIRMAN VOLZ: Right. 20

MR. RAUBVOGEL: We provided everything 21

that we had in discovery. Clipper does not 22

necessarily provide everything that it has. 23

CHAIRMAN VOLZ: You don't need to defend 24

yourself. We are not accusing you of 25

127

anything. We are simply saying if you can get 1

the information, please get it. It would be 2

important to have, or if you can't get it, 3

please explain why you can't get it. Thank 4

you. 5

MR. RAUBVOGEL: I have no further 6

questions. 7

BOARD MEMBER BURKE: I have one now 8

based on your questions, but not on that one. 9

And I would suggest that it would be a good 10

idea because there is an affirmative 11

obligation, if in fact there is information 12

available, if you can show that a party failed 13

to get something that was available to them 14

for the sole purpose of not providing it, then 15

in fact that is a violation. We are not 16

alleging that here, but we would like the 17

info. 18

Mr. Guldberg, I have a wife that was 19

born on the Jersey shore, so I go to bed most 20

every night with a sound machine. Makes me 21

thinking that in Vermont I'm at the ocean. 22

THE WITNESS: I have the same problem. 23

My wife snores. 24

BOARD MEMBER BURKE: Well --25

128

BOARD MEMBER COEN: We will send her a 1

copy of the transcript. 2

BOARD MEMBER BURKE: No. I don't want a 3

copy of the transcript to go anywhere. Are 4

there mitigation steps that might be taken if 5

in fact there is a minimal -- if it was a 6

minimal increase or impact on night noise and 7

sound pressure, that could mitigate or 8

alleviate some of the otherwise difficult 9

circumstances that would exist? 10

THE WITNESS: You're referring to 11

nighttime noise? 12

BOARD MEMBER BURKE: The Jersey shore, 13

yeah. 14

THE WITNESS: You're referring to 15

nighttime noise inside of a bedroom. 16

BOARD MEMBER BURKE: Yes. 17

THE WITNESS: Yes, there are. If it's a 18

bedroom that relies on natural ventilation at 19

present, one could make an arrangement with 20

the property owner to provide an air 21

conditioning system that would provide fresh 22

air coming in, let's say on the warm summer 23

nights, so people didn't have to open their 24

windows. 25

129

The obvious case to an extreme, being 1

the sort of mitigation that's done in and 2

around airports. And of course it's much 3

nosier there. The two things that are done 4

for mitigation for people who happen to live 5

near an active runway are to better sound 6

insulate the buildings, so that sound doesn't 7

come in through the walls as easily. And then 8

to eliminate the need to open the windows for 9

fresh air on summer nights, but by providing 10

the air conditioning system. So in that 11

defined location, in other words a bedroom 12

sleeping at night, there is specific things 13

that can be done with the concurrence of the 14

property owner. 15

BOARD MEMBER BURKE: Just so I have that 16

for my own arsenal. You don't think much of 17

these earth machines then, is one way of 18

dealing with it, earth sounds? 19

THE WITNESS: The waves? 20

BOARD MEMBER BURKE: Yeah. 21

THE WITNESS: It all depends on if you 22

like waves. 23

BOARD MEMBER BURKE: We won't get into 24

that part. Thank you. 25

130

CHAIRMAN VOLZ: That's all the questions 1

now. 2

MR. RAUBVOGEL: Yes. 3

CHAIRMAN VOLZ: Thank you. Mr. Johnson, 4

did you have any other questions? I want to 5

make sure everybody feels that you were fairly 6

treated. 7

MR. JOHNSON: I think I'm okay right 8

now. 9

CHAIRMAN VOLZ: Okay. Thank you. Thank 10

you, Mr. Guldberg. You're excused. 11

THE WITNESS: Thank you. 12

CHAIRMAN VOLZ: Are the Burringtons 13

here? 14

MS. BARBER: No, they are not. 15

CHAIRMAN VOLZ: Thank you. I understand 16

the parties have stipulated putting their 17

testimony into evidence; is that correct? 18

MR. RAUBVOGEL: Yes. 19

CHAIRMAN VOLZ: So is there any 20

objection to doing that? Were there any 21

exhibits with that? I also think the next 22

witness is Mr. Kaliski; is that correct? 23

MR. HERSHENSON: It is, but while we are 24

on the subject. 25

131

CHAIRMAN VOLZ: He can start bringing 1

his stuff up and getting in place while we 2

keep talking. 3

MR. HERSHENSON: Sure. I do have the 4

McCue testimony and exhibits for filing which 5

was again also stipulated to. 6

CHAIRMAN VOLZ: Okay. Are they marked? 7

MR. HERSHENSON: They are marked. 8

CHAIRMAN VOLZ: And how are they 9

identified? Could you read into the record 10

how they are identified? 11

MR. HERSHENSON: I will. Yes. I would 12

like to offer at this time the prefiled 13

testimony of David McCue, as well as exhibits 14

DM-1 which is a warning for the Sutton annual 15

town meeting dated March 2, 2006, and Sutton 16

DM-2 which are the minutes of the selectboard 17

public hearing on August 23, 2005. 18

CHAIRMAN VOLZ: Are there any objections 19

to the admission of his testimony and these 20

exhibits? 21

MR. RAUBVOGEL: No. 22

CHAIRMAN VOLZ: They are admitted. 23

(Exhibits Sutton-DM-1 and 2 were admitted 24

into evidence)25

132

(Prefiled testimony of David McCue was 1

included in the original transcript 2

only, at pages 132A through F, 3

inclusive.) 4

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CHAIRMAN VOLZ: All right. What we have 1

in our records is -- is testimony from the 2

Burringtons, Michael and Marsha Burrington, 3

and two exhibits. Exhibits MMB-1 and MMB-3. 4

There is no two in our packet. If anybody is 5

aware that there is a second exhibit that we 6

don't have, please let us know. Otherwise, is 7

there any objection to the admission of this 8

testimony and these exhibits? 9

MR. RAUBVOGEL: No. 10

CHAIRMAN VOLZ: They are admitted. 11

(Exhibits MMB-1 and 2 were admitted 12

into evidence) 13

(Prefiled testimony of Michael and 14

Marsha Burrington was included in the 15

original transcript only, at pages 133A 16

through Y, inclusive.) 17

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134

CHAIRMAN VOLZ: Thank you. And then the 1

Burringtons don't need to appear. Mr. 2

Hershenson, are you ready now? 3

MR. HERSHENSON: I am. 4

CHAIRMAN VOLZ: I realize you have been 5

ready all along. 6

BOARD MEMBER BURKE: Now we are. 7

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135

KENNETH KALISKI 1

having first been duly sworn 2

testified as follows: 3

DIRECT EXAMINATION BY MR. HERSHENSON: 4

Q. Whatever. Good afternoon, Ken. 5

A. Good afternoon. 6

Q. Let me show you and ask you to identify 7

please, these documents as your prefiled direct testimony, 8

prefiled surrebuttal testimony, and Exhibit KK-1 which is 9

your resume. 10

A. Yes. 11

Q. I would like to note that for unexplainable 12

reasons Mr. Kaliski's name on the top of the page of his 13

prefiled direct testimony he is identified as Kenneth 14

James not Kenneth Kaliski. Now I've asked him whether he 15

uses the alias Kenneth James, and he has indicated that he 16

does not. So we are assuming it's a typographical error. 17

Other than that, Mr. Kaliski, a/k/a James, are 18

there any corrections or modifications you would like to 19

make to that document? 20

A. No. I don't have any. 21

MR. HERSHENSON: Subject to that 22

modification, which I will supply the Board 23

with revised pages indicating his correct 24

name, we would offer into evidence his 25

136

prefiled testimony, his prefiled surrebuttal 1

testimony, and exhibit Sutton KK-1. 2

CHAIRMAN VOLZ: Any objection? 3

MR. RAUBVOGEL: No. 4

CHAIRMAN VOLZ: It's admitted. 5

(Exhibit Sutton-KK-1 was 6

admitted into evidence.) 7

(Prefiled testimony of Kenneth Kaliski 8

was included in the original transcript 9

only, at pages 136A through L, 10

inclusive.) 11

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137

CHAIRMAN VOLZ: Mr. Johnson, I believe 1

you're going first? 2

CROSS EXAMINATION BY MR. JOHNSON: 3

Q. On page four of your rebuttal testimony, you 4

note that the EPA's 55 decibel guideline was developed in 5

the '70s. And that more recent research on the impact of 6

noise on sleep disturbance has led to more refined 7

guidelines being developed, and these guidelines would 8

result in lower dBA levels for measuring disturbance. Is 9

that true? 10

A. Yes, it is. 11

Q. And Mr. Janson asked Mr. Guldberg whether the 12

EPA standard was an inappropriate one for this project. 13

And I'll ask you the same question I asked him -- 14

MR. JANSON: Excuse me, just to be clear 15

I think my question was whether it is an 16

appropriate standard. 17

MR. JOHNSON: Appropriate. Okay. Then 18

I stand corrected. Thank you. 19

BY MR. JOHNSON: 20

Q. Is the EPA standard the appropriate one to 21

apply in this case? 22

A. No, I don't believe it is. 23

Q. And are there any reasons for that conclusion? 24

A. Well there is several reasons as discussed in 25

138

my rebuttal testimony. The EPA standard is adopted in 1

1974. And was based on the latest research at the time. 2

And since that time there have been numerous studies on 3

annoyance and sleep disturbance impacts that have led to 4

more refined standards that deal with those specific 5

impacts. 6

Secondly, the EPA -- the EPA guideline is 7

based on an annual day/night average level. And when we 8

are talking about impact, especially sleep interference 9

impacts, a standard should be based on specific impacts 10

rather than averages over an entire year. Because if you 11

have, for example, half the year a level over the sleep 12

disturbance level, and half the year under the sleep 13

disturbance level, that means someone is having 14

essentially a poor night's sleep for half the year. So 15

impacts like sleep disturbance should be based on more 16

like an 8-hour average over the night. 17

Q. When we questioned Mr. Guldberg, Mr. 18

Hershenson suggested, I think, that if we consider the 19

maximum warranted noise level for the turbine, that would 20

raise the model level -- the level modeled by UPC for 21

several decibels across the board. And in your original 22

prefiled testimony page 6 you compared the highest noise 23

level model against the background noise levels. Which 24

you said were about 23 or 24 decibels. 25

139

And so I guess the question is, will the 1

project be audible from these areas around the project, 2

and will the sound be distinct and different from the 3

existing sound level in the existing character of that 4

level around the project area? 5

A. Well certainly at times the sound levels from 6

the project as modeled by the applicant would be above the 7

background sound levels and would be audible. And at that 8

point in time, probably clearly distinguish the wind 9

turbines from the background sound level. 10

Q. And on your prefiled testimony you suggest 11

that if there is a 10 decibel difference between the 12

background level and the -- well a 10 decibel difference 13

is perceived by people all other things being equal as 14

being roughly twice as loud as a 10 decibel lower sound; 15

is that correct? 16

A. Yes. 17

Q. And so when we are looking at background 18

levels of say 23 or 24 decibels, and we are talking about 19

modeled noise levels of right around 30 decibels, to which 20

we might add 6 to account for the maximum warranted noise 21

levels for the turbine, what does that suggest about the 22

audibility and the character of it? 23

A. Well certainly there are other factors that 24

would increase the sound levels beyond the 6 decibels, 25

140

that to account for the warrantied sound levels, first of 1

all. 2

So that the -- for example, looking at the 3

closest residential location which is only 2,200 feet away 4

rather than the closest modeled level which is 3,900 feet 5

away. That would also increase the sound level beyond 6

that. And then using these different ground absorption 7

factors that Mr. Guldberg discussed would also increase 8

the sound level beyond that using what's called non 9

spectral ground attenuation versus spectral, would 10

increase -- could increase it by say another 4 decibels. 11

So taking all those things into account the 12

likely impacts are going to be quite a bit higher, I 13

believe, than what's been modeled as the maximum sound 14

level. In addition to the meteorological effects that we 15

also testified to in our prefiled testimony, in my 16

prefiled testimony. 17

Q. And just so I understand you said the non -- 18

the spectral level -- the spectral work that you -- the 19

failure to do that would increase the levels; is that 20

correct? 21

A. Yes. There is -- ISO 9613-2 standards allows 22

two types of ground absorption calculations. That's the 23

calculation of how much sound the ground absorbs before it 24

gets to the receiver. Spectral or non spectral, and 25

141

spectral used in certain cases, and non spectral is used 1

in certain cases. In the case, we believe, of a very tall 2

sound source, we would use the non spectral ground 3

attenuation which is a much more conservative, much more 4

conservative approach to modeling the sound. And we 5

believe in this case that the HMMH used the spectral 6

ground attenuation which is less conservative. 7

MR. JOHNSON: Thank you. That's all I 8

have. 9

CHAIRMAN VOLZ: Mr. Raubvogel? 10

MR. RAUBVOGEL: Thank you. 11

CROSS EXAMINATION BY MR. RAUBVOGEL: 12

Q. Ken, just to pick up on one thing. You stated 13

that the closest modeled receptor was I think you said 14

3,900 feet, but you believe the closest residence is 2,200 15

feet? 16

A. Closest model residence, yes. According to 17

the flicker analysis. The E-911 residences that were -- I 18

believe I don't have the -- I can give you the -- 19

according to the flicker analysis, it has E-911 20

residential buildings, and the closest residential 21

building to the project is 2,200 feet according to that 22

analysis. 23

Q. Ken, are you aware that that's a residential 24

camp for an owner that is providing a easement to UPC? 25

142

A. I don't know anything about that house. There 1

are also other houses along Duck Pond Road that are close 2

to there that also -- 3

Q. Are you also aware that those are seasonal 4

camps? 5

A. They are residential locations. 6

Q. I'm just asking you -- 7

A. I'm not aware that they are seasonal camps. 8

Q. You are not aware whether UPC has any 9

agreements with any of those? 10

A. No. I'm not. 11

Q. Ken, I'm going to ask you some questions about 12

some of the concerns you've raised. And I'm going to ask 13

you these questions with reference to some work that 14

you've done in another project that you and I are both 15

aware of, the Deerfield project? 16

A. Yes. 17

Q. And I guess in the interest of full disclosure 18

I should state it's true that you and I have worked 19

together on that project? 20

A. Yes. 21

Q. We have the same client; correct? 22

A. Yes. 23

Q. You prepared -- you prepared the original 24

Searsburg report, not the new Deerfield, but you prepared 25

143

the original Searsburg noise report back in 1995; correct? 1

A. I think it was '95. Yes. Both -- well both 2

reports. Yes. 3

Q. Okay. And in that report you stated that the 4

turbine that was being contemplated was a prototype 5

turbine, do you recall that? 6

A. Yes, I believe it was. 7

Q. And you went on further in the report and said 8

that the manufacturer had asked that you not even identify 9

who the manufacturer was because it was a prototype, do 10

you recall that? 11

A. I would have to go back and look. 12

Q. Okay. Do you have that with you? 13

A. Yes. 14

Q. Would you mind taking a look? I'm guessing 15

it's close to the beginning. I wouldn't swear to that. 16

A. Yes. 17

Q. What is it that you state in there? 18

A. It says the noise -- the turbine noise 19

emissions used for this modeling are for a prototype 20

turbine that is currently under development. Since the 21

data is from a prototype, the manufacturer has required us 22

to keep their name confidential until such time as the 23

final design is marketed. And at that time updated noise 24

emission data will be provided that will accurately 25

144

reflect refinements made to the prototype design. 1

Q. In that report itself there is actually no 2

sound emissions data from the turbine, is there? 3

A. Well there is. You have to look at the 4

modeling results. Which does give the sound emissions in 5

the appendix. 6

Q. Now let's focus in on the Deerfield report. 7

You prepared that -- this is Exhibit UPC 8

Cross KK-1. This is a report that you prepared; correct? 9

A. Yes, it is. 10

Q. And it was dated December 28, 2006? 11

A. Yes. 12

Q. And this has been submitted to the Public 13

Service Board by your client as part of a 248 proceeding; 14

correct? 15

A. Yes. 16

Q. Do you stand by this report? 17

A. Yes. 18

Q. Do you believe the information and data 19

presented in the report was sufficient -- is sufficient 20

for this Board to find that the Deerfield project would 21

not pose an undue adverse effect due to noise? 22

A. Yes. 23

Q. One of the issues you raised in this case is 24

you've said that there is no data for the applicant to 25

145

make -- or for HMMH to make any statements regarding the 1

masking effect of wind, do you recall that statement? 2

A. Yes, I do. 3

Q. Okay. Could you turn to page 21 of your 4

Deerfield report. And in the section labeled 6.2 masking, 5

do you state in the fourth line beginning with the word 6

combined, combined with the fact that the frequency 7

spectrum from wind is very similar to the frequency 8

spectrum from a wind turbine, the sound from a wind 9

turbine is easily masked by wind noise at down wind 10

receivers, is that what this sentence reads? 11

A. Yes, but in context we did do a masking 12

analysis looking at the relationship between hub height, 13

wind speeds and sound levels at the receivers, so we 14

actually did do the analysis to back this up. 15

Q. We will get to that. But that statement 16

itself is a statement that is a general statement about 17

the relationship of wind and wind turbines, is it not? 18

There is no qualification to that statement. 19

A. Well it's meant not as a general statement, 20

but essentially specific to this, as we present the data, 21

following. I mean there are wind turbines that aren't 22

masked as well, by background sound levels, and there are 23

ones that are masked more. And at certain wind speeds 24

there is no masking. And that's discussed further in the 25

146

report. 1

So there is a range of masking that occurs 2

with wind turbines. 3

Q. But this particular statement is just -- it 4

says the sound from a wind turbine. It doesn't say there 5

is nothing specific about that statement and the project 6

itself, it is a general statement? 7

A. Well I wouldn't apply it generally. I think 8

it's taken out of context in the whole of the report. I 9

think generally you can say that as wind speeds go up, the 10

sound from a turbine also goes up, and the background 11

sound level down wind receivers also goes up at some 12

point, but it's important to note especially for elevated 13

or mountainous regions, that you can have the wind blowing 14

on top of the mountain, and you can have no wind blowing 15

in the valleys. And you have to look at the -- at that 16

relationship when does the wind start blowing in the 17

valleys, at what wind speed at the top of the mountain 18

does it start blowing in the valleys, in order to 19

essentially say what level of masking will occur. 20

Q. Okay. And just to be clear, HMMH never said 21

that a particular level of masking occurred, they just 22

said that masking will occur at some times; correct? 23

A. And what we were saying is that you can't 24

really say that unless you can back it up with specific 25

147

data, site-specific data. 1

Q. Okay. So they made a generic statement, 2

you've essentially said that generic statement will occur 3

in some situation, but you went on in the Deerfield case 4

to confirm it; correct? You actually did -- 5

A. We essentially did the analysis to figure out 6

at what wind speeds there would be masking, what wind 7

speeds there wouldn't be masking, when would you start to 8

get that effect. 9

Q. And you actually have that in your Deerfield 10

report. You show the relationship at two different sites. 11

One of those locations was west of a turbine string, one 12

of those locations was east of a turbine string, and you 13

then present the data on page 23 of your report, which 14

shows the relationship of the ridgetop wind speed to the 15

sound levels at those two locations; correct? 16

A. Is it site one and seven, and let's see. Just 17

get you -- I just need to confirm where those sites were. 18

I think -- did you say one was south and one was -- 19

Q. You can look at -- 20

A. One was south and one was west. Yes. 21

Q. That's on page 10 of the report. It shows 22

that. 23

A. Yes. 24

Q. Okay. And you state in the report we found 25

148

that ambient sound levels in the valley do not start to 1

rise until the wind speeds on the ridge reach about 5 to 7 2

meters per second. 3

A. Can you just tell me where that is? 4

Q. I'm sorry. On page 22, in the second 5

paragraph, actually I'll read the -- you state we found 6

that in each case, sound levels in the valley were 7

correlated with wind speed on the ridge. However, we also 8

found that ambient sound levels in the valley do not start 9

to rise until the wind speeds on the ridge reach about 5 10

to 7 meters per second. 11

A. That's correct. Yes. 12

Q. Okay. And if that same condition were true at 13

this site, if you would look at Cross-PG-1, this is the 14

Clipper -- have you seen this, this is the Clipper data. 15

A. I've seen this. Yes. 16

Q. And if you look at the top graph, first of all 17

the 5 to 7 meters per second, was that measured at what 18

height? 19

A. I believe that is hub -- hub height or close 20

to it. 21

Q. So the height at 10 meters above the ground -- 22

I'm sorry, the speed would be less than at 10 meters above 23

the ground at the ridgetop, correct? 24

A. I believe so. I'm not sure. 25

149

Q. But if you look on here, even if it were -- if 1

you look at the top graph which is wind speed at 10 2

meters, it would show that at 5 to 7 meters per second, 3

the sound power level for the Clipper turbine is less than 4

its maximum level; correct? 5

A. Yes. Seven meters per second it's only -- 6

well it's a decibel less than the reference level, but 7

it's about 2 and a little more decibels less than the 8

maximum level. 9

Q. Okay. And again this would -- and the wind 10

speed at 10 meters would presumably be lower than the 5 to 11

7 meters per second that you've presented there, if that's 12

a hub height? 13

A. If that is. And I would have to check. I'm 14

not sure. 15

Q. You also state in that report, at the point at 16

which winds are blowing with relatively low speeds on the 17

ridge, but not in the valley, the wind turbines would be 18

most audible. 19

A. That's correct, yes. 20

Q. The turbines would be operating at low to 21

medium speeds and will have proportionally lower sound 22

emissions, that's what you said? 23

A. Yes. 24

Q. And this Clipper data shows that that's true, 25

150

at those wind speeds the sound levels are lower; correct? 1

A. Well that's, of course, specific to Clipper 2

which we are not using that kind of turbine here. I mean 3

that analysis wasn't done for Sheffield, so you really 4

can't say that the Deerfield data can be applied to 5

Sheffield. 6

I mean if this were us doing the Sheffield 7

analysis, we would have done the same exact thing for 8

Sheffield and would rely on a completely different 9

location. 10

Q. Okay. But Ken, that's not what I'm asking. 11

What I'm asking you is if the -- the relationship you're 12

stating there is that at those lower wind speeds the 13

turbines are operating at lower -- low to medium speeds 14

and will have proportionally lower sound emissions? 15

A. Yes. 16

Q. That relationship is true for the Clipper 17

turbine as well, at lower wind speeds they operate at 18

lower sound levels? 19

A. Oh, absolutely. Yeah. 20

Q. That's all. Thank you. Now you also state on 21

page 23, low frequency sound can also be generated at high 22

wind speeds when the inflow air is very turbulent. 23

However, at these wind speeds low frequency sound from the 24

wind turbine blades is often masked by wind noise at the 25

151

down wind receivers? 1

A. Yes. 2

Q. That statement is not based upon -- that's a 3

generic statement that you made about that relationship; 4

correct? 5

A. Can you just tell me where that is? 6

Q. It's the last paragraph. I'm sorry, yeah. 7

It's last paragraph, third sentence. 8

A. Yes. 9

Q. Okay. That is a generic statement, that is 10

not a statement that relates back to your wind data; 11

correct? 12

A. Yes. 13

Q. Okay. Thank you. Now Ken, let me pick up on 14

this question of what is the right noise criteria for the 15

Board to consider. You have said the EPA -- you don't 16

think the EPA is the appropriate one. It's an annualized 17

figure. There has been more recent information about 18

sleep disturbance. 19

In the Deerfield case you look at a number of 20

different guidelines, and you conclude that the World 21

Health Organization guideline, 45 dB averaged over a night 22

-- 23

A. Yes. 24

Q. -- is the appropriate standard to use; 25

152

correct? 1

A. That's one of the -- one of the 2

recommendations. 3

Q. Well let's go to your exact recommendation. 4

On page 6, section 3.5, in the second sentence, you state 5

given the scientific evidence regarding sleep disturbance 6

and other impacts that was reviewed by WHO, we proposed 7

that the project should meet a standard of 45 dBA LEQ 8

night? 9

A. Yes. 10

Q. Averaged over the entire night, and then 50 11

dBA LEQ day averaged over the remainder of the day, that 12

was your recommendation, was it not? 13

A. Yes. And just to add a slight context is that 14

also our recommendation on page 34 is that you would be 15

selecting a turbine with a sound power of 106 decibels or 16

less, and with no tonality or tonality within an 17

acceptable level. So that assumes that there is 18

essentially no pure tones. 19

Q. Okay. You also say, you footnote, the section 20

in page 6, and say the sleep disturbance standard used 21

here is based on a windows open condition. During the 22

seasons when windows are generally closed, the standard is 23

10 dB higher to account for the additional attenuation of 24

closed windows; correct? 25

153

A. Yes. 1

Q. So the effect of that, as I understand what 2

you're saying, is that in the winter the WHO standard 3

would become a 55-D BA standard at -- outside the 4

receptor. So that inside the home they are receiving no 5

more than 30 dBA; correct, that's the -- 6

A. Yeah. The importance is the sound level 7

inside the bedroom where people are trying to sleep. So 8

that's what we are basing the standard on. 9

Q. And WHO wants that to be 30 in the bedroom. 10

That's what they are -- that's what the guideline is 11

geared towards; correct? 12

A. Yes. 13

Q. And the way you get to 45 is attenuation with 14

windows open, or attenuation with windows closed would 15

give you a different number? 16

A. Yeah. 17

Q. Okay. Now you recently authored an article 18

which I've marked as KK-2. Cross-KK-2-UPC. Inter-noise 19

2006. This was a presentation or paper that you gave this 20

past December at a noise conference? 21

A. Yes. 22

Q. And in here, you essentially state that you do 23

not recommend using a relative noise standard for wind 24

projects. Correct? 25

154

A. Can you show me where that is? 1

Q. You state in the abstract, the last sentence, 2

this calls into question the appropriateness of relative 3

noise standards for variable noise sources operating in 4

rural areas such as wind turbines, do you see that? 5

A. Yes. 6

Q. Okay. That's -- 7

A. It was in the context of this standard that we 8

were showing. And the -- based on the fact that the 9

standard didn't take into account uncertainties of 10

statistical probability. It doesn't mean that all 11

relative standards are inappropriate, but this one that we 12

were evaluating was. 13

Q. But in any event in the Deerfield case you 14

didn't recommend the relative standard, you recommended 15

the WHO standard? 16

A. That's correct. Yeah. 17

Q. In the Deerfield case you did not address in 18

any way, this question of impulse noise arrhythmic 19

beating, did you? 20

A. No. We didn't. 21

Q. And you didn't address that issue because you 22

didn't feel it needed to be addressed, did you? 23

A. Not with the turbines that were being proposed 24

in that case. 25

155

Q. And just to be clear, the turbine, looking on 1

page two of the report, the turbine strings that are being 2

proposed here have at various points -- well turbines that 3

are relatively spaced evenly, is that true? 4

A. I couldn't tell you what their spacing is. Or 5

what relatively evenly is. But they are all along -- they 6

are along the ridge. 7

Q. Okay. If you look at the turbines at the 8

lower part of the string on the eastern side, are there 9

not 6 turbines that are relatively spaced evenly, I'm 10

looking at the -- 11

A. The five turbines there. Those look like they 12

are relatively evenly spaced. Yes. 13

Q. And the other turbines within some band are 14

relatively evenly spaced, are they not? 15

A. Relatively I guess. I'm not quite sure what 16

the criteria is. But -- 17

Q. Well are they a thousand meters different, are 18

they all within -- 19

A. Some are, some aren't. 20

Q. Do you see -- well take the next turbines, 21

you've got 5, are those -- 22

A. Yes. 23

Q. Are they different by a thousand meters, are 24

they spaced within a couple hundred meters of each other? 25

156

Give or take? 1

A. Yeah. Those are a little less evenly spaced 2

than the first five that you talked about. 3

Q. But the difference is a hundred meters? 4

CHAIRMAN VOLZ: If I could interrupt for 5

a second. This is a case that's pending 6

before us. And the parties to that case 7

aren't here. Not all of them aren't here. 8

And we haven't actually started hearing this 9

case yet, the Deerfield case. 10

So I'm just wondering if you had any 11

thoughts on whether it's appropriate for us to 12

actually be hearing this kind of cross 13

examination and testimony about this, the 14

specifics of this project. It's one thing if 15

you ask him what he recommended for a standard 16

in one case compared to here. Now you're 17

getting into very specific information about 18

the Deerfield project itself. 19

MR. RAUBVOGEL: I understand your 20

concern. We have a witness here who has 21

testified in this case about certain concerns. 22

He has provided a report in another case. I 23

think for -- from UPC's point of view, it 24

should be able to examine this witness about 25

157

the consistency between what he has said in 1

this case and what -- on what the facts are 2

and what he has said in the other case. 3

I am prepared to move on, off this 4

point. And I don't have that many more 5

points, but -- 6

CHAIRMAN VOLZ: All right. I was 7

wondering what the Department thought about 8

this since they are a party in both cases. 9

MR. COTTER: Well I guess being a party 10

in both cases it doesn't give us any 11

particular heartburn, but I understand the 12

Board's concerns there. Certainly be other 13

parties in the Deerfield case that aren't 14

here. To some level it sounds like we are 15

testing the evidence before the docket has 16

been opened. 17

MR. RAUBVOGEL: But that evidence will 18

be tested in that docket, and you're going to 19

have to make your decision in that docket 20

based upon the record evidence there. 21

BOARD MEMBER COEN: I assume your 22

cross-examination will be shorter in that 23

case. 24

MR. RAUBVOGEL: I hope it's not cross 25

158

examination necessarily. 1

BOARD MEMBER COEN: Whatever examination 2

of this witness. 3

CHAIRMAN VOLZ: And presumably this 4

transcript will be available to those parties. 5

And they would be able to look at what 6

happened here, and if they had a concern, they 7

could bring it up in that docket. 8

Did anybody else have anything -- any of 9

the parties have anything to add about this 10

discussion? 11

MR. HERSHENSON: It's a very interesting 12

question. 13

CHAIRMAN VOLZ: Do you know what the 14

date is of the testimony -- the exhibit you're 15

looking at, when was it filed? 16

MR. RAUBVOGEL: Well the report is filed 17

December 28. I haven't asked about the 18

testimony, but it was filed January 8 or 19

thereabouts. 20

CHAIRMAN VOLZ: Okay. 21

MR. RAUBVOGEL: You can see from UPC's 22

perspective, if it has a witness in front of 23

it that has made a report in another case that 24

it has relevant -- that's a wind project, that 25

159

has similar characteristics, it would want to 1

inquire. 2

CHAIRMAN VOLZ: Sure. Why don't you 3

continue. 4

BY MR. RAUBVOGEL: 5

Q. Ken, you mentioned before that your ultimate 6

recommendation in the Deerfield case was -- well let me 7

take a step back. In the Deerfield project you modeled 8

the GE turbines; correct? That was what you used for 9

modeling purposes? 10

A. We used that as a basis for modeling. Yes. 11

Q. Although in that case the applicant has said 12

they may end up using a different turbine. 13

A. Yes. Although we recommended that it didn't 14

exceed the sound power of the GE turbine that we modeled 15

in this case. 16

Q. And on page 25 of your report you present the 17

sound power levels of a GE turbine; correct? 18

A. Yes. 19

Q. Okay. And those are presented as one, one 20

octave band levels? 21

A. Yes. 22

Q. And in fact, for the band 31.5 you have 23

nothing in that band; correct? 24

A. That's correct. Yes. 25

160

Q. And that's because you said that GE didn't 1

provide that data; correct? 2

A. That's correct. Yes. 3

Q. Looking at the four corners of this document 4

you did not present to this Board either one third octave 5

band data or narrow band analysis for this turbine, yes or 6

no? 7

A. We recommended in our mitigation that whatever 8

turbine is chosen has no tonality. So whatever turbine 9

that is going to be installed, would have the IEC test 10

done for tonality, and would have the IEC test done for 11

sound power. And would essentially meet all of those 12

standards. 13

Q. Okay. So now I would like you to answer my 14

question which is just looking at the four corners of this 15

document, this document does not present nor do you make 16

any reference to either narrow band analysis or one third 17

octave band data or the IEC standard, none of that appears 18

in this report, yes or no? 19

A. We may have referenced the IEC standards. 20

Q. If you have, I would like you to find that 21

please. 22

MR. HERSHENSON: This is a first. I've 23

never seen this. 24

MR. COTTER: I've seen a lot of firsts 25

161

in the past week or so. 1

BY MR. RAUBVOGEL: 2

Q. Ken, can we do this subject to checking at the 3

break? Assume with me for a moment that in this report 4

you did not present narrow band analysis, one third octave 5

data, or reference the IEC standard, if you would just 6

keep that -- 7

A. I'll keep that in mind. 8

Q. You believe that this report is sufficient for 9

this Board to render a decision in this case, correct? 10

A. Absolutely. Yes. 11

Q. Okay. Thank you. Now with respect to 12

background data, for the Sheffield project, you state that 13

the highest turbine sound levels should be compared to the 14

lowest background levels. In the Deerfield report you 15

state that the 45 dBA nighttime standard should be 16

compared with the average background levels. You do not 17

compare it to the lowest background levels; correct? 18

A. No. That's not correct. My testimony was in 19

response to a question of -- it was a question about how 20

much would the turbines exceed existing background sound 21

levels. And I didn't make a recommendation on -- 22

Q. Okay. Fair enough. 23

A. Didn't make a recommendation, but that was the 24

question that was asked. 25

162

Q. Okay. So if I were to ask you a different 1

question which is if you were applying the WHO standard of 2

45 dBA averaged over the nighttime, and one wanted to see 3

how that compared with background, what you've done in the 4

Deerfield project is you've compared it to average 5

background, not the L-90 or not the lowest background. 6

A. It's the difference between the no build and 7

build sound levels with -- based on LEQ. 8

Q. Okay. Thank you. 9

A. In the Deerfield wind project. 10

Q. Thank you. Turning to page 34, and this 11

relates back to your -- I think your point before, that 12

your recommendation was the Board in the Deerfield can 13

approve that project no matter what turbine is chosen so 14

long as that turbine has a sound power level of 106 dBA or 15

less, or demonstrating that the final number and 16

configuration of the turbines will not exceed 45 dBA 17

averaged over the night at the nearest residence. Now 18

let's start there. 19

A. Yes. 20

Q. That first clause -- I'm sorry, the second 21

clause of that would seem to suggest that in Deerfield if 22

the applicant there simply demonstrated that they were 23

meeting a 45 dBA LEQ at the nearest residence, that that 24

would be sufficient for the Board to be able to permit 25

163

that project; correct? If they could meet that at the 1

closest residence? 2

A. Yes. 3

Q. Okay. Your second one is selecting wind 4

turbines with no tonality or tonality within an acceptable 5

level? 6

A. Yes. 7

Q. Again, in this case you've presented no 8

tonality data; correct? 9

A. That's correct. That's because we are saying 10

that turbines will not have any because that's what we are 11

recommending. 12

Q. You're telling the Board that it could be -- 13

the turbine has not yet been selected, but whatever 14

turbine is selected would have no tonality; correct, or 15

tonality within acceptable standards? 16

A. Yes. 17

Q. And then the third one is providing neighbors 18

with a site supervisor to recall or to resolve noise 19

complaints? 20

A. Yes. 21

Q. And just looking at the data that has been 22

presented thus far, understanding that it's your position 23

that more detailed data is needed, but given the data 24

that's been presented with respect to the one third 25

164

octaves, this data -- this data shows that there is not a 1

tonality exceedance? 2

A. No, no, it doesn't. 3

Q. It does not show that, or it does show that? 4

A. It does not show that. 5

Q. If you did the -- if you looked at the 6

average, on either side of the form or 1,000 hertz 7

frequency band, there is not more than a 3 dB difference 8

on both sides? 9

A. Tonality for a wind turbine is based on the 10

IEC standard for tonality, and that is based on a narrow 11

band analysis which wasn't done here. 12

Q. That's the narrow band analysis that you 13

didn't include in this report, you modeled the GE turbine, 14

you provided no other data, but you told the Board that 15

this was adequate? 16

A. That's right. Because assuming the Board 17

follows the recommendations and applies a condition that 18

there would be no tonality, that tonality would be 19

determined by the IEC or reported under the IEC 61400-14 20

standard which essentially allows each turbine 21

manufacturers -- gives them a standard reporting, same 22

kind of -- every turbine has the same analysis procedure 23

and reporting documentation that's required for the wind 24

turbine. 25

165

So you would receive this ISO -- excuse me, 1

IEC 61,400-14 letter that says the sound power levels are 2

104 decibels plus or minus 2 which meets the 106 level, 3

and there is no tonality, then it meets the standards and 4

can be put in. You know, these processes take quite a 5

long time to get through, and over that time, there are 6

new turbines, there are improved turbines, and it's 7

difficult to essentially pick a turbine and assume that 8

that's going to be the best available turbine by the time 9

they get through the process and are ready to construct. 10

But whatever happens, I think they need to 11

show this -- the standardized tonality and sound power 12

reporting which includes standard deviation, and narrow 13

band analyses, in order to be installed in the Deerfield 14

project. 15

Q. Thank you. So if the Board took that 16

recommendation in this case, they could impose a permit 17

condition, as you are essentially suggesting here, which 18

would be that UPC would have to meet a 45 dBA standard at 19

the receptors, and UPC would have to provide certification 20

meeting the IEC standards that there are no tonalities, 21

that would meet what you have laid out here? 22

A. Yes, it would. But I don't think there is an 23

analysis showing whether that can be met. 24

Q. Well Ken, you don't -- 25

166

A. Except for the tonality. 1

Q. I understand. But Ken, you've recommended 2

that if the Board -- that the Board should simply impose 3

that as a condition depending upon what turbine -- the 4

Deerfield project chooses. So they would have to provide 5

that information at that time. And the Board could simply 6

require in this case a condition which is the same. Could 7

they not? 8

A. But I think it would be reasonable for the 9

Board to require an acoustical analysis showing that they 10

could meet that standard. And in this case, I think there 11

are enough questions about the methodology, that there are 12

questions as to whether it can meet that standard, and 13

that the analysis essentially should be done over using 14

the sound power levels that are being considered, and the 15

ground attenuation factors that are more appropriate, and 16

the meteorological conditions outside of the ISO limit of 17

5 meters per second. 18

MR. JANSON: Excuse me, just to be 19

clear, Mr. Kaliski, when you say to make sure 20

that that standard could be met, you're 21

referring to the 45 dBA standard? 22

THE WITNESS: Yes. 23

MR. JANSON: At the receptors. 24

THE WITNESS: Assuming there is no 25

167

tonality. But I haven't established in this 1

case a recommended sound level or standard. 2

The question was whether it could be done in 3

this case using a 45 decibel standard. But I 4

haven't recommended a standard. 5

CHAIRMAN VOLZ: But if the condition is 6

they can't operate the turbines unless they 7

meet the standard, then what difference does 8

it make? If they don't meet the standard, 9

they don't get to operate their turbines. If 10

they want to take a risk and not do the 11

studies in advance, why would it make a 12

difference? 13

THE WITNESS: I think that would not 14

provide a burden of proof that you're going to 15

not have an adverse impact on aesthetics, just 16

providing a standard and saying you're going 17

to meet it, I think, is not providing a burden 18

of production anyway under criterion 8, not 19

criterion 8. 20

BOARD MEMBER BURKE: I think what the 21

Chairman is getting at, is there going to be 22

any rational company that's going to not do 23

some sort of study to satisfy themselves that 24

they are going to meet those rather than go 25

168

through the expense and the hassles of 1

erecting a tower and then shortly thereafter 2

have the CPG revoked and go through the hassle 3

and the cost of pulling them back down? 4

THE WITNESS: Exactly. I don't think 5

they would. I think it's they are taking a 6

big chance. 7

BY MR. RAUBVOGEL: 8

Q. And again, Mr. Kaliski, in this report you 9

have not provided a tonality analysis, but it's your 10

position to the Board that what you've got in here is 11

adequate so long as they condition a Deerfield petition, a 12

Deerfield CPG, to meet the recommendations? 13

MR. HERSHENSON: Could I raise an 14

objection? This has been asked and answered 15

at least three times. It's getting 16

argumentative. And I think we should move on. 17

CHAIRMAN VOLZ: I agree. 18

BOARD MEMBER BURKE: I agree too. 19

MR. RAUBVOGEL: Okay. 20

BOARD MEMBER COEN: Mr. Raubvogel, how 21

much longer do you have? 22

MR. RAUBVOGEL: If you give me a moment, 23

I may be done. 24

(Pause)25

169

MR. RAUBVOGEL: That's all I have. Thank 1

you. 2

CHAIRMAN VOLZ: We are going to take a 3

break now, because we are running behind. I 4

would like to take 15 minutes. 5

BOARD MEMBER BURKE: I would like the 6

parties to know, too, that I have a conference 7

call on a telecom matter, and I'm going to 8

take -- I'm going to spend -- I kind of 9

committed a half hour to that. I didn't know 10

we were going to shorten the break. I may not 11

be back until 3:30. I might as well read 15 12

more minutes of transcript. 13

(A recess was taken) 14

(Mr. Burke is absent) 15

MR. RAUBVOGEL: Excuse me. I need to 16

enter my exhibits. 17

CHAIRMAN VOLZ: Okay. Go right ahead. 18

MR. RAUBVOGEL: UPC seeks to admit 19

Exhibit UPC-Cross-KK-1 and UPC-Cross-KK-2. 20

CHAIRMAN VOLZ: Any objection? They are 21

admitted. 22

(Exhibits UPC-Cross-KK-1 and 2 were 23

admitted into evidence) 24

CHAIRMAN VOLZ: I guess all of our 25

170

questions were already answered. So Mr. 1

Hershenson? 2

MR. HERSHENSON: Redirect. 3

CHAIRMAN VOLZ: Okay. 4

REDIRECT EXAMINATION BY MR. HERSHENSON: 5

Q. Thank you. First of all, bear in mind 6

anything you say I may use against you in another case. 7

(Laughter) 8

Q. You were asked some questions with regard to 9

the modeled noise levels at the Sheffield site, and I 10

think you heard Mr. Guldberg's testimony this morning, 11

that he thought that they were undermodeled by between 6 12

to 8 decibels, not including the sound power levels. Do 13

you have the same opinion? 14

A. I believe they were undermodeled, but I have a 15

different estimate. 16

Q. And what would your estimate be of the actual 17

decibel levels with regard to these turbines? 18

MR. RAUBVOGEL: I'm going to object. I 19

don't think I asked him about the modeled 20

results in any of my cross examination. I 21

asked him about the Clipper data, but never 22

about the HMMH results. 23

MR. HERSHENSON: My notes indicate there 24

are numerous questions about the dBA levels, 25

171

the noise levels from the turbines at 1

Sheffield. 2

(Pause) 3

CHAIRMAN VOLZ: Is there a distinction 4

between what Mr. Hershenson says he heard 5

questions about and what you're objecting to? 6

MR. RAUBVOGEL: Well I think what he's 7

trying to do is kind of go back to bolstering 8

or getting in some new testimony about Ken's 9

adjustments. I never asked Ken about 10

adjustments with respect to the modeling. 11

CHAIRMAN VOLZ: So what you're saying is 12

that the line of questioning that Mr. 13

Hershenson is proceeding on is not responsive 14

to any questions you asked. 15

MR. RAUBVOGEL: Yes. 16

CHAIRMAN VOLZ: Regardless of the fact 17

that you may have asked questions about dBA 18

levels you didn't ask questions about -- 19

MR. RAUBVOGEL: DBA levels, that doesn't 20

tell you anything. We talked about dBA levels 21

with respect to noise standards, that sort of 22

thing. We never talked about the modeled 23

results and whether they were or were not 24

accurate or whether he had adjustments, I mean 25

172

I think he's now -- there is back filling 1

going on. 2

MR. HERSHENSON: Mr. Chairman, I 3

apologize, and I stand corrected. I'm looking 4

at my notes and the questions were asked by 5

Mr. Johnson, not Mr. Raubvogel. 6

CHAIRMAN VOLZ: Okay. 7

MR. HERSHENSON: But there were 8

questions certainly on this issue. 9

MR. RAUBVOGEL: This is the problem with 10

friendly cross. These two -- I don't think 11

there is any question that these two parties 12

have consulted with each other and their 13

respective witnesses about the noise. This is 14

essentially giving them another bite at the 15

apple to back fill and get in new information, 16

and I don't think it's proper redirect to have 17

it come off of the questions he's suggesting. 18

CHAIRMAN VOLZ: Okay. Any response, Mr. 19

Hershenson or Mr. Johnson? 20

MR. HERSHENSON: I'm simply asking 21

questions that arose that were unobjected to 22

with regard to noise levels, modeled noise 23

levels at Sheffield. There certainly were 24

questions, there was no objection to the 25

173

questions. They were labeled as cross 1

examination. 2

CHAIRMAN VOLZ: But this is something 3

that he could have put in his prefiled 4

testimony. 5

MR. JOHNSON: I think a certain amount 6

of it is in prefiled testimony. Both of them 7

have testified that they think the modeled 8

sound levels were underreported. And I think 9

we are both just asking about that. 10

CHAIRMAN VOLZ: But I mean the actual 11

answer to the question that Mr. Hershenson 12

asked, the actual question and answer could 13

have been put in prefiled testimony, it wasn't 14

anything that came out today that you're 15

responding to. Or is there something that 16

you're responding to that came out today that 17

was different from what was said by -- this 18

analysis by the petitioners was done awhile 19

ago, and you've responded to it in your 20

prefiled, and you could have put it in that -- 21

in the prefiled testimony. 22

MR. RAUBVOGEL: And more fundamental 23

than that, he's now asking him whether he 24

agrees with Guldberg or whether he, in fact, 25

174

has got numbers that are different for 1

assumptions. Clearly it should have been 2

prefiled. And if he had a response to 3

Guldberg, he could have included that in his 4

surrebuttal which he did file. 5

CHAIRMAN VOLZ: Right. Let us 6

deliberate for a minute. 7

(Pause) 8

CHAIRMAN VOLZ: We are not going to 9

allow it. We think it's unfair for the 10

reasons I stated earlier. You had plenty of 11

opportunity to put it in before now. If we 12

allow you to ask this question and have him 13

answer it, we have to give UPC time to ask 14

questions on it. 15

We had a schedule, and you had an 16

opportunity to bring out anything you didn't 17

like about their study. You did this in the 18

prefiled. This is something that should have 19

been in there. Sorry if it wasn't. 20

MR. HERSHENSON: It is actually in the 21

prefiled testimony. 22

CHAIRMAN VOLZ: Good. Then you don't 23

need to ask the question. 24

MR. HERSHENSON: I'm just trying to put 25

175

a number -- 1

CHAIRMAN VOLZ: You could have put the 2

number in there. That's the problem. 3

Continue with some other questions. 4

BY MR. HERSHENSON: 5

Q. Mr. Kaliski, you were asked a series of 6

questions by Mr. Raubvogel with regard to the Deerfield 7

project? 8

A. Yes. 9

Q. And the Deerfield project is, in fact, an 10

extension of the Searsburg project? 11

A. It's in the same area, but the two projects 12

are owned by different companies. 13

Q. How close is the Deerfield project to the 14

Searsburg project? 15

A. They are very close. 16

BOARD MEMBER COEN: Do they abut each 17

other? 18

THE WITNESS: Yes, they do. 19

BY MR. HERSHENSON: 20

Q. Would you agree with me conceptually that the 21

Deerfield/Searsburg site is a different site acoustically 22

than the Sheffield site? 23

A. Yes. 24

Q. And what specifically are some of the 25

176

differences between the two sites? 1

A. Well I mean it's -- one of the biggest 2

differences is that around the Deerfield site you have 3

existing turbines and the Searsburg site. So there is, at 4

least for some of the receivers, there is existing wind 5

turbine sound. At the Deerfield site the background sound 6

levels look to be a little bit higher. 7

Q. When you say a little bit higher, are we 8

talking about 5 decibels, 10 decibels? 9

A. The lowest nighttime -- L-90 anyway background 10

levels are defined by a lot of different things, but I 11

think the testimony today was in terms of L-90, so just 12

looking at L-90, for example, the site one in Deerfield 13

had a nighttime L-90 of 28 decibels. Site 2 is 37, site 14

3, 38. And so it's high 20's, low '90s, for most of the 15

sites. Some of them in the 40's closer to the road. 16

Q. Some of the nighttime L-90's? 17

A. Yes, there is even one at 61 that was next to 18

the Searsburg turbines. 19

Q. And these background noise levels are 20

significantly different than the noise levels in 21

Sheffield; is that correct? 22

A. Well they are certainly different. We haven't 23

done an analysis of all of the different -- the LEQ. The 24

L-50 and the L-90 day and night. 25

177

Q. But looking at the L-90 -- 1

A. They are higher. 2

Q. They are higher. 3

A. They are higher in Deerfield. 4

Q. You've indicated that the -- in answer to some 5

questions, that the recommendation in your Deerfield study 6

is to use the WHO guidelines? 7

A. In Deerfield, yes. 8

Q. Is that correct? 9

A. In part. Yes. 10

Q. Okay. You're not necessarily recommending 11

that for Sheffield, is that what I understood you to say? 12

A. I haven't recommended a standard in Sheffield. 13

Q. And is it your expert opinion that each site 14

is different enough to require the use of a different 15

standard for each site? 16

A. We take each site on a case-by-case basis. In 17

areas where there is no standard anyway. 18

Q. You were asked some questions by Mr. Raubvogel 19

with regard to the effect of the masking of noise by wind; 20

is that correct? 21

A. Yes. 22

Q. And you indicated that in the Deerfield study 23

you did some analysis of the winds at the turbine site 24

versus the receptor sites? 25

178

A. The winds at the turbine site as opposed to 1

the sound levels at the receptor site. 2

Q. And what did you find with respect to the wind 3

levels at the turbine site vis-a-vis the wind levels at 4

the receptor sites? Was there a one-to-one relationship? 5

A. In our Deerfield analysis, it was a -- it 6

wasn't a linear one-to-one relationship. No. It was a 7

more of a second order polynomial, essentially as the wind 8

starts to blow up on top of the mountain, the sound levels 9

down in the valley don't change much. Then at a certain 10

point they start to rise, and at a certain point when they 11

get very high, it levels off. 12

Q. So there were -- your analysis indicated that 13

there were times when the wind could be blowing enough for 14

the turbines would be generating noise, and at the same 15

time, there would be no wind at the receptor sites at the 16

homes? 17

A. There would be no change in sound level. 18

Q. No change in sound level. Even though the 19

wind speeds were different? 20

A. Well I didn't measure wind down in the valley. 21

So we are just comparing wind at the turbines to the sound 22

level in the valley or the homes. 23

Q. So the wind speed could increase on the 24

turbine site and have no impact on the noise levels at the 25

179

homes? 1

A. That can happen. Yes. 2

Q. All right. And no such study was done to your 3

knowledge in Sheffield? 4

A. No. It couldn't have been done, because 5

during the time of the monitoring, the sound level 6

monitoring, the meteorological equipment on the mountain 7

were iced over and they weren't collecting any data. 8

Q. And you've seen no data in any of the 9

information that you've reviewed in the Sheffield case 10

indicating that an analysis was done of the wind -- 11

meteorological wind speeds at the receptor sites? 12

A. I haven't seen any meteorological data at the 13

receptor sites. That was the question? 14

Q. That is the question. 15

MR. HERSHENSON: That's all I have. 16

Thank you. 17

CHAIRMAN VOLZ: Thank you. I think we 18

are finished with Kaliski at this point unless 19

there is somebody that needs to question him 20

for some reason. 21

Thank you, Mr. Kaliski. You're excused. 22

THE WITNESS: Thank you. 23

CHAIRMAN VOLZ: And the next witness, 24

Mr. Gregory. 25

180

DONALD W. GREGORY 1

having first been duly sworn 2

testified as follows: 3

MR. JANSON: Good afternoon, Mr. 4

Gregory. 5

THE WITNESS: Good afternoon. 6

MR. JANSON: Since you don't have 7

counsel, I'm going to ask you a few questions 8

to establish who you are and admit your 9

testimony and exhibits. First of all, please 10

state your name? 11

THE WITNESS: Donald W. Gregory. 12

MR. JANSON: And Mr. Gregory, did you 13

prepare prefiled testimony for this 14

proceeding? 15

THE WITNESS: Yes, I did. 16

MR. JANSON: And it's dated July 25, 17

2006? 18

THE WITNESS: Yes, it is. 19

MR. JANSON: Do you have any changes or 20

corrections you would like to make to that 21

testimony? 22

THE WITNESS: I do. A few minor ones. 23

MR. JANSON: If you could read them 24

slowly enough for us to mark them please. 25

181

THE WITNESS: On page number two, on 1

line 17, 26 turbines, change it to 16. Page 2

-- page number 3, line number two, 398 down to 3

-- up to 420 feet. Also on that same page -- 4

line 9, 398 to 420. 5

MR. JANSON: Mr. Gregory, are all of 6

these changes to reflect the revised proposal 7

by the applicant? 8

THE WITNESS: Yes, they are. 9

MR. JANSON: You can either go through 10

and make the changes in your testimony -- I 11

suppose or you could after the testimony comes 12

in answer a question or two about whether 13

anything changes as a result of the revisions. 14

So -- 15

THE WITNESS: One more change. 16

MR. JANSON: Just one more. Okay. 17

THE WITNESS: I believe page -- I have a 18

question on page 8 reference -- to my 19

reference to the King George School. I 20

received a memorandum, I guess we would call 21

it, from the Board, that I can't testify to 22

that I believe until -- 23

CHAIRMAN VOLZ: Right. It was a section 24

that was struck. 25

182

MR. RAUBVOGEL: It was the hearsay 1

statement. 2

CHAIRMAN VOLZ: Right. 3

MR. JANSON: The Board's order of 4

September 27. 5

THE WITNESS: It said to strike lines 1 6

to 15. 7

MR. JANSON: On page 8, that's correct. 8

CHAIRMAN VOLZ: All right. So we will 9

strike those. 10

THE WITNESS: And also page 9 down on 11

line number 19, where it says addressing 12

aesthetics and head waters, it should read 13

aesthetics, economic impact, and head waters. 14

And that should be it. 15

CHAIRMAN VOLZ: Okay. Thank you. 16

THE WITNESS: Thank you. 17

MR. JANSON: And with those changes and 18

corrections, is your testimony true and 19

accurate to the best of your knowledge and 20

belief? 21

THE WITNESS: Yes, sir. 22

MR. JANSON: And did you also with your 23

testimony file a number of exhibits? 24

THE WITNESS: Yes, I did. 25

183

MR. JANSON: And I believe you have, is 1

it 9 exhibits? 2

THE WITNESS: Yes. That's right. 3

MR. JANSON: They are labeled exhibits 4

DG-1 through 9? 5

THE WITNESS: That's correct. 6

MR. JANSON: Are those true and accurate 7

representations of what they purport to be? 8

THE WITNESS: Yes, they are. 9

MR. JANSON: And I assume you wish to 10

have your testimony and exhibits entered into 11

the record. 12

THE WITNESS: I would please. 13

MR. JANSON: Are there any objections to 14

the admission of Mr. Gregory's prefiled 15

testimony and exhibits DG-1 through 9? 16

MR. RAUBVOGEL: No. 17

CHAIRMAN VOLZ: They are admitted. 18

(Exhibits DG-1 through 9 were admitted 19

into evidence) 20

(Prefiled testimony of Donald W. Gregory 21

was included in the original transcript 22

only, at pages 183A through P, 23

inclusive.) 24

25

184

CHAIRMAN VOLZ: I believe all the -- UPC 1

wanted to cross Mr. Gregory. 2

MR. RAUBVOGEL: Yes. 3

CROSS EXAMINATION BY MR. RAUBVOGEL: 4

Q. Just a few questions. I promise. 5

A. Thank you. As long as it's not dBA's and 6

hertz and whatever. 7

Q. I think we have had enough of that. 8

A. Thank you. 9

Q. Mr. Gregory, if you would look at the poster 10

board behind you, this is the exhibit that is for the new 11

project, and it's SS -- CRV-SSRB-2, I believe, your home 12

-- is your home on this? 13

A. Yes, it is. 14

Q. Can you point to it, and describe where you're 15

pointing to for the record? 16

A. I'm pointing -- this is the Ernie Evans Road 17

right here. I'm just to the north of that. Right about 18

right here. On the easterly side of Norris Mountain. 19

MR. JANSON: Are you one of those gold 20

squares? 21

THE WITNESS: Yes, I am. 22

MR. JANSON: It looks like you're 23

probably the second square above the word 24

Ernie on the right-hand -- 25

185

THE WITNESS: Or the third. 1

MR. JANSON: Third square. 2

THE WITNESS: Yes. Third square above. 3

BY MR. RAUBVOGEL: 4

Q. Now when the project was originally proposed 5

and there were turbines on Norris Mountain, your house was 6

much closer to those turbines; correct? 7

A. Yes. 8

Q. And in the second iteration, when four of 9

those turbines were removed, there was a greater distance 10

between your house and the closest turbine; correct? 11

A. That's correct. 12

Q. Now with this new iteration, there is an even 13

greater distance between your house and the closest 14

turbine; correct? 15

A. That's correct. 16

Q. Okay. Subject to check, is your house now 17

approximately a mile and-a-half or so -- 18

A. I'm going to guesstimate, and that's a 19

guesstimate, approximately a mile and-a-half. 20

Q. I see you've got the cross exhibit that I'm 21

going to ask you about. And let me pass this out to the 22

Board. And I believe the other parties have received 23

this. This is UPC-Cross-DG-1. And before you get to 24

that, I just want to show you because this is derived from 25

186

an existing exhibit. 1

I'm showing you what was prefiled as rebuttal 2

Exhibit UPC-JN-Reb-2, and this was prefiled by Jeff Nelson 3

the hydrogeologist. And this is a watershed map of the 4

area; is that correct? 5

A. That's correct. 6

Q. Okay. And this, of course, shows the 7

September turbine array. I would like to now focus your 8

attention on the UPC-DG-1 which is the current turbine 9

array, essentially the same map? 10

A. Yes. 11

(Mr. Burke arrived) 12

Q. Do you see the red lines on both of these 13

maps? 14

A. I do. 15

Q. And those are represented by these maps as the 16

watershed for particular water bodies; correct? Is that 17

what's represented? 18

A. Yes. Two different water sheds here by the 19

looks of it. 20

Q. And if you look at Cross-DG-1, does that show 21

on it the turbines, and they are in dark triangles? 22

A. It does. 23

Q. Okay. And it shows that those turbines are 24

all located within the water sheds which are all named 25

187

here Clark Brook watershed, Calendar Brook watershed, 1

unnamed tributary to Willoughby Brook watershed, Annis 2

Brook watershed, and finally unnamed tributary to 3

Willoughby Brook watershed? 4

A. That's correct. 5

Q. Do you see those? 6

A. I do. 7

Q. Now does this exhibit also have a line which 8

is intended to be the estimate of the location of the 9

spring that you mention in your testimony, relative to the 10

closest turbine? 11

A. Yes. Yes, it does. 12

Q. Is that about the right location of that 13

spring that you mentioned? 14

A. It's an approximate down on the Underpass 15

Road. 16

Q. And that distance is 1.3 miles, at least 17

what's indicated? 18

A. That's what it's indicated here. 19

Q. Subject to check, does that sound about right? 20

A. Yes. 21

Q. Are you aware, Mr. Gregory, that that spring 22

is not located in any of the water sheds which are 23

represented by this map? 24

A. That spring is not. Correct. 25

188

Q. That spring is not? 1

A. Correct. 2

MR. RAUBVOGEL: That's all I have. 3

CHAIRMAN VOLZ: Okay. 4

MR. RAUBVOGEL: I would move to admit 5

Cross-DG-1. 6

CHAIRMAN VOLZ: Any objection? It's 7

admitted. 8

(Exhibit UPC-Cross-DG-1 was 9

admitted into evidence.) 10

MR. JANSON: Good afternoon, Mr. 11

Gregory. 12

THE WITNESS: Good afternoon. 13

MR. JANSON: Mr. -- in response to Mr. 14

Raubvogel, you indicated that your house is 15

now -- did you say about one and-a-half miles 16

-- 17

THE WITNESS: Approximately. 18

MR. JANSON: -- from the nearest 19

turbine. Does that change or lessen any of 20

the concerns that you expressed in your 21

prefiled testimony? 22

THE WITNESS: I still have major 23

concerns. 24

MR. JANSON: How about for impacts on 25

189

your own property which were discussed in your 1

prefiled testimony? 2

THE WITNESS: Still on my property as 3

far as possible view into the towers, since 4

there has not been a balloon test or a 5

demonstration of any type that has been done, 6

I'm still not fully convinced that I'm not 7

going to be able to see these turbines from my 8

back upper field, my backyard. 9

MR. JANSON: Would you agree that the 10

project as currently designed should have less 11

impact on your own property than the original 12

proposed project? 13

THE WITNESS: I believe -- some less, 14

yes. 15

MR. JANSON: Thank you. 16

BOARD MEMBER BURKE: Just to follow-up 17

on Mr. Janson's question, Mr. Gregory, do you 18

feel that if you were satisfied that you 19

wouldn't be able to see the turbines from your 20

property, would that lessen in some large 21

measure your concerns? 22

THE WITNESS: I still have some major 23

concerns, I brought up -- I was allowed to 24

intervene on watershed issues. Up in this 25

190

area where the project is proposed is right on 1

-- if we look at the maps right on the spine 2

of these ridgelines for over a mile distance, 3

there is two different water sheds up in here. 4

Going which end up down through Barton, 5

Willoughby River watershed ends up going 6

through Crystal Lake down into the Barton 7

River and confluencing with the Willoughby 8

River which goes into lake Memphremagog. Come 9

to the south of this ridgeline, you have the 10

South Passumpsic River drainage system. 11

My concerns are if you have 16 12

industrial-sized towers on top of those 13

ridgelines that have approximately 11,000 -- 14

over 11,000 gallons of contaminants within 15

these between the nacelle and the 16

transformers, my concern is climactic 17

conditions at these high elevations. These 18

are fragile sensitive areas that have -- can 19

have horrendous winter climactic conditions. 20

There has been documentation these 21

turbines are not hermetically sealed. We have 22

potential for leaching out of these turbines, 23

lightning strikes have been demonstrated. I'm 24

worried about contamination of head water -- 25

191

there is no less than 20 feet of feeder 1

streams up in this area, we are talking in 2

this middle stretch right here, I have major 3

concerns. Something that's not going to show 4

up overnight, but in the future possibly we 5

have to be seriously thinking about. 6

I know there has been mention, I believe 7

there is testimony, to 250 plus or minus 8

gallons of fuel in the nacelles that is 9

biodegradable. There is testimony it breaks 10

down in 20 days. Testimony to 400, 450 11

gallons of contaminant or fuel in the 12

transformers that is not biodegradable. If we 13

have a catastrophe, there was testimony about 14

what type of a response would be able to be 15

made up in this high elevation country in 16

wintertime climactic conditions. To keep that 17

area open to respond to something, I think 18

when we have snow melt off, this terrain -- 19

you get up on any of these elevations, Mrs. 20

Mallary mentioned it yesterday, about the 21

glacial lake effect over around Lake 22

Willoughby. If you look up from my backyard 23

look at Mt. Hoar, Mt. Pisgah, Bartlett 24

Mountain, Wheeler Mountain come over to 25

192

Norris, keep coming west up on to Libby Hill, 1

Barrett Hill, where they had the bat radar 2

sites on Duck Pond ledges, these mountains are 3

nothing but rock piles. There has been no 4

drilling yet to test on blasting. There is 5

going to be a major amount of blasting in my 6

view, from -- these are nothing but rock 7

piles. And there has been demonstration to 8

blasting effects when they alter water sheds 9

or springs. 10

I have some major issues, runoff in the 11

winter times on the roadways that they want to 12

keep up -- open up into this country to 13

replace whatever equipment they have to 14

replace on these turbine sites. And I think 15

as -- I'm concerned for the general populous 16

of the State of Vermont. 17

BOARD MEMBER BURKE: Well then I want to 18

ask you this question. And I know it's kind 19

of loaded, but I want your response. You 20

pressed the ANR witnesses, primarily the 21

wetlands witnesses, on these particular items. 22

THE WITNESS: Yes. 23

BOARD MEMBER BURKE: And she indicated 24

if my memory serves me correctly, I don't have 25

193

the transcript on front of me, but she kept 1

indicating that she considered the risk was 2

small, and that it wasn't enough to worry her. 3

You disagree with that, and pretty vehemently? 4

THE WITNESS: Personally I don't believe 5

in risk or permits. Some people seem to think 6

once you get a permit everything is fine. 7

Because you get a permit everything is going 8

to be taken care of properly. Well permits 9

don't mean there is no risk out there. And 10

these are -- I think we have to keep in mind, 11

these are fragile, I keep saying fragile, but 12

these are sensitive areas. 13

Act 250 over the years has addressed 14

high elevated impacts, ski area, that type 15

stuff. There is really some concerns about 16

high ridgeline areas, there are sensitive 17

areas with shallow top soils, these are not -- 18

we are right around -- these are bone rock 19

piles basically. 20

BOARD MEMBER COEN: Mr. Gregory, in your 21

testimony you say that you own two businesses; 22

one in Sutton and one in Lyndonville. 23

THE WITNESS: Correct. 24

BOARD MEMBER COEN: What's the nature of 25

194

those businesses? 1

THE WITNESS: I have a property 2

maintenance type business, and me and my 3

better half, my better half, she has a 4

clothing type business. And I have a John 5

Deere type business. So mementos -- 6

BOARD MEMBER COEN: Do you have any 7

concern that this project will impact those 8

businesses? 9

THE WITNESS: Yes, I do. 10

BOARD MEMBER COEN: Would you expand on 11

that please? 12

THE WITNESS: Well as far as people, we 13

see a lot of tourists that come through the 14

Northeast Kingdom. I mean I really don't have 15

to talk about tourists, we know how it is. 16

They come through, they purchase products, 17

depending on the type of tourist. If it's a 18

hunting season, that time of year, the snow 19

machine business, this is the North Country's 20

lifeline to survive, to survive in the 21

Northeast Kingdom. 22

I do honestly feel there will be an 23

impact. We know the amount of leaf peepers 24

that will come -- leaf peepers who come 25

195

through the State of Vermont in the fall. The 1

Northeast Kingdom, in my career, it's in here, 2

I have been all corners of the state, across 3

this whole state; northeast corner. I stated 4

in my prefiled I believe Governor Aiken, I 5

believe said it, it was the gem, or the crown 6

jewel of Vermont, and it is. 7

The view sheds up in this Northeast 8

Kingdom are nothing like the rest of the 9

state. Go down -- everybody refers to the 10

Searsburg project. The view sheds down there 11

are nothing comparatively up in the Northeast 12

Kingdom, as far as impact goes. You can go 13

around this Sheffield project site looking at 14

the maps, the 10 mile radius map. Mr. Brown 15

had a map here yesterday just showing the 16

anemometer sitings. Myself in the profession 17

of the warden, you have to learn and know the 18

district intimately. I looked at that map and 19

I could show you countless more places where 20

you could see the anemometers than Mr. Brown 21

actually showed. These structures are going 22

to be out of place. They do not fit. I think 23

we heard that from some professional 24

architects. They are not going to fit for the 25

196

area. 1

BOARD MEMBER COEN: Thank you. 2

THE WITNESS: Thank you. 3

CHAIRMAN VOLZ: Any other questions for 4

this witness? Thank you, Mr. Gregory. 5

Appreciate you coming. 6

THE WITNESS: Thank you. 7

MR. RAUBVOGEL: Mr. Volz? 8

CHAIRMAN VOLZ: Yes. 9

MR. RAUBVOGEL: UPC filed testimony from 10

Jeffrey Nelson which was stipulated in. So he 11

never had to appear here. If, for whatever 12

reason the Board on reflection wants to hear 13

from him, obviously we will make him 14

available, and particularly on any of the 15

issues that have been raised by Mr. Gregory 16

with respect to impacts to water supplies or 17

to water resources, any of that. We think 18

that we have enough in the prefiled to more 19

than adequately show that it's protected, but 20

if you need him back, we can make him 21

available. 22

CHAIRMAN VOLZ: That's good to know. 23

Thank you. 24

BOARD MEMBER BURKE: Before we go any 25

197

farther, the chair doesn't know I'm going to 1

say this. I'm trying to limit it by not 2

having you take this as to the quality or the 3

impact of the evidence. 4

I want to take a second, Mr. Gregory, to 5

say that our procedures are somewhat difficult 6

sometimes. And we have had to bring you into 7

them a couple of times and talk with you about 8

them. But I want to tell you that you've done 9

really a marvelous job for a pro se here in 10

formulating your questions and staying within 11

our rules, and you should be commended for 12

that. 13

MR. GREGORY: Thank you for the 14

allowance of a pro se. 15

BOARD MEMBER COEN: Your questions have 16

certainly been much more succinct than many of 17

the attorneys. 18

BOARD MEMBER BURKE: I didn't say that. 19

I was trying to stay away from that. 20

BOARD MEMBER COEN: And I appreciate 21

that. 22

CHAIRMAN VOLZ: I think Ms. Pritchett is 23

the next witness. 24

MR. HAND: UPC calls Liz Pritchett to 25

198

the stand. 1

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199

LIZ PRITCHETT 1

having first been duly sworn 2

testified as follows: 3

DIRECT EXAMINATION BY MR. HAND: 4

Q. Good afternoon, Liz. How are you? 5

A. Very well. Thank you. 6

Q. Good. You've presented a report and testimony 7

in this case; is that correct? 8

A. Yes. 9

Q. And just so we are clear, your original report 10

was included as attachment 24 to David Raphael's original 11

report? 12

A. Yes. 13

Q. Is that correct? And that original exhibit 14

was DR-2? 15

A. I believe so. Yes. 16

Q. And you've also offered rebuttal testimony in 17

this case and two exhibits; is that correct? 18

A. Yes, I did. 19

Q. If I can refer to Board Exhibit 1, first let 20

me ask you, do you have any changes to make to your 21

rebuttal testimony or exhibits? 22

A. No, I do not. 23

Q. Okay. 24

MR. HAND: UPC would move to admit the 25

200

rebuttal testimony of Liz Pritchett and 1

exhibits UPC-LP-Reb-1-A and B and Reb 2 as 2

they are indicated on Board Exhibit 1. 3

CHAIRMAN VOLZ: Any objection? They are 4

admitted. 5

(Exhibits UPC-LP-Reb-1 A and B and Reb 2 6

were admitted into evidence) 7

(Prefiled testimony of Liz Pritchett was 8

included in the original transcript 9

only, at pages 200A through V, 10

inclusive.) 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

201

MR. HAND: Ms. Pritchett is available 1

for cross. 2

CHAIRMAN VOLZ: Is there anyone from 3

ANR? 4

MR. HERSHENSON: John was here. 5

MR. HAND: They are here. 6

CHAIRMAN VOLZ: One second. Anyone here 7

from ANR? 8

MS. KELLIHER: Yes. Good afternoon. 9

I'm Julie Kelliher. I'm General Counsel for 10

the Division of Historic Preservation, Special 11

Counsel for ANR in this matter. 12

CHAIRMAN VOLZ: Would you like to 13

cross-examine the witness? 14

MS. KELLIHER: I apologize. My 15

co-counsel just stepped out of the room. 16

CHAIRMAN VOLZ: And he's the person or 17

she is the person who is going to do the 18

cross-examination? 19

MS. KELLIHER: Yes. He was going to. I 20

don't know if we were planning on cross 21

examining or not. If it's simply on the 22

written testimony that Liz Pritchett has 23

already admitted, we will not cross-examine 24

her on that. 25

202

CHAIRMAN VOLZ: You indicated you had 30 1

minutes of cross-examination. We scheduled 2

the day -- we had slotted for that. Not that 3

you need to go forward with it. 4

MS. KELLIHER: May I consult with my 5

co-counsel? 6

CHAIRMAN VOLZ: If you can find him. 7

BOARD MEMBER BURKE: Not if he's in the 8

men's room, you can't. 9

MS. KELLIHER: I'll be back in 2 10

minutes. 11

MR. HAND: While they are doing that, 12

I'm going to pass out our cross exhibits for 13

Mr. Gilbertson. 14

CHAIRMAN VOLZ: Maybe we could use this 15

time to put in the testimony from the lay 16

witnesses from UPC. 17

MR. HAND: Sure. They are out in the 18

hallway. I can get it in two seconds. 19

BOARD MEMBER COEN: So is everybody 20

else. 21

CHAIRMAN VOLZ: Do you have those -- 22

that testimony? 23

MR. HAND: I do. Yes. 24

CHAIRMAN VOLZ: All right. Do you want 25

203

to identify it? 1

MR. HAND: Sure. I'm going to refer 2

again to Board Exhibit 1. This is on the 3

final page. We have a heading rebuttal 4

testimony of lay witnesses and the individual 5

named witnesses will be testifying. I'm happy 6

to read them all. There are about 14. 7

CHAIRMAN VOLZ: No, you don't need to do 8

that. 9

MR. HAND: We would move to admit that 10

testimony. 11

CHAIRMAN VOLZ: Is there any objection? 12

They are admitted. 13

(Prefiled testimonies of Jennifer Jill 14

Mathers, Alan Robertson, Leslie Newland, 15

Jack Simons, Sally Wood-Simons, Mike 16

Channon, Laura Rogers, Christina Coles, 17

Bob Aubrey, Jim Bicknell, Brad Deth, 18

Ervin S. Weed and Rhoda Weed were 19

included in the original transcript 20

only, at pages A through LL, 21

inclusive.) 22

23

24

25

204

CHAIRMAN VOLZ: Now I think we are going 1

to move on to Board questions for this witness 2

while we are waiting for ANR to come back. 3

(A discussion was held off the record) 4

CHAIRMAN VOLZ: She did say that they 5

didn't have cross. 6

MR. HAND: I think that may have been a 7

misstatement. 8

CHAIRMAN VOLZ: All right. Why don't we 9

do the Board questions. 10

MR. McNAMARA: Good afternoon, Ms. 11

Pritchett. I would like to start with page 19 12

of your rebuttal testimony. Do you have that? 13

THE WITNESS: Page 19? 14

MR. McNAMARA: Yes. 15

THE WITNESS: I'm not sure if I do have 16

that. 17

CHAIRMAN VOLZ: Mr. Hand, the witness 18

doesn't have her testimony. 19

MR. HAND: I'm sorry. I do have a copy. 20

MR. McNAMARA: I'm looking specifically 21

at lines 15 through 20. And in that portion 22

of your testimony you state that surrounding 23

environs of the park include other manmade 24

elements that certainly influence the overall 25

205

experience of the public. You then proceed to 1

list some of these manmade elements such as 2

the railroad tracks, cars on route 5, the 3

power lines. 4

THE WITNESS: Yes. 5

MR. McNAMARA: Do you know if these 6

features were present at the time Crystal Lake 7

State Park was constructed? 8

THE WITNESS: I believe most of them 9

were. Yes. 10

MR. McNAMARA: Isn't that a factor in 11

assessing the impact on the historical 12

structures whether existing structures were 13

there at the time it was created? 14

THE WITNESS: That's true. There were a 15

number of historic structures, you could call 16

them historic, because they were there 50 17

years ago along route 5, although the railroad 18

tracks are there, they certainly have been 19

there for many, many years. I imagine the 20

amount of traffic has increased quite a bit 21

since the park was built. 22

As far as buildings themselves along 23

route 5, those structures are not particularly 24

significant, some of them are fairly old, but 25

206

most of them have been altered significantly 1

in the last 50 years. 2

MR. McNAMARA: Okay. From a layman's 3

perspective not having experience with 4

historical, if I was looking through 5

photographs from the 1930's roughly when the 6

park was created, it wouldn't be surprising to 7

see not necessarily photographs from the park, 8

but from that time period to see railroad 9

tracks, cars, houses, those kinds of things. 10

THE WITNESS: Right. 11

MR. McNAMARA: You wouldn't expect to 12

see 400-foot wind turbines, though, would you? 13

THE WITNESS: No. 14

MR. McNAMARA: Did you read Mr. Brown's 15

testimony? Mr. Brown was an aesthetics 16

witness for UHS and RPI. 17

THE WITNESS: I have read it. Yes. 18

MR. McNAMARA: In his testimony he 19

refers to or describes the proposed wind 20

turbines as quote sleek, modern and high tech. 21

Would you agree with that characterization? 22

THE WITNESS: Yes. 23

MR. McNAMARA: Okay. Mr. Brown also 24

contrasts these wind turbines with what he 25

207

calls essentially the rustic feel of the 1

Northeast Kingdom. And would you also agree 2

with that, it's a rustic feel generally in the 3

Northeast Kingdom? 4

THE WITNESS: I think so. Yes. 5

MR. McNAMARA: So would you agree that 6

the placement of wind turbines on a ridge 7

opposite Crystal Lake introduces a sleek, 8

modern element into the view shed of a 9

historic park? 10

THE WITNESS: Yes, I do. Can I qualify 11

that? 12

MR. McNAMARA: Yes. Of course. 13

THE WITNESS: Well it's -- in my 14

opinion, yes, it is. It's new, it's modern, 15

there are a lot of modern structures closer to 16

the park than the wind turbines. The wind 17

turbines are much larger definitely. But in 18

my opinion, because they are over five miles 19

away, their impact is diminished substantially 20

than if they were closer to the park itself. 21

MR. McNAMARA: Because the scale isn't 22

as dominant essentially because of the 23

distance, is that why they are not as 24

prominent in the landscape? 25

208

THE WITNESS: Yes. 1

MR. McNAMARA: Okay. Thank you. 2

MR. JANSON: Good afternoon, Ms. 3

Pritchett. I think I just have one, one 4

question for you. You have recommended as a 5

mitigation measure an interpretive exhibit of 6

Crystal Lake State Park. 7

THE WITNESS: Yes. 8

MR. JANSON: Have you or anyone on 9

behalf of UPC discussed this proposal with the 10

Vermont Department of Forest, Parks and 11

Recreation? 12

THE WITNESS: Not that I know of. No. 13

MR. JANSON: Were you planning to? 14

THE WITNESS: Well yes, if -- I think 15

it's inappropriate mitigation measure, and we 16

would work -- with whoever would be preparing 17

this exhibit would work with them. I know in 18

the past that sort of mitigation has occurred. 19

MR. JANSON: If the Department of 20

Forest, Parks and Recreation did not agree to 21

the placement of an interpretive exhibit, 22

without that mitigation, would there then be 23

an undue adverse impact on the historic nature 24

of Crystal Lake State Park? 25

209

THE WITNESS: Well not necessarily. I 1

mean there are different types of mitigation 2

measures that can be developed, and this was 3

one idea that seemed appropriate, and it was 4

in an effort to be an interpretive exhibit, 5

and a way to educate the public and help them 6

understand the purpose of wind power. There 7

might be other ways to provide this 8

information other than an exhibit. 9

MR. JANSON: Thank you. And John, that 10

was one question with three parts. 11

BOARD MEMBER BURKE: I marked it down as 12

such. A, B and C. 13

I just want to make sure I understand, 14

Ms. Pritchett, your understanding of the 15

nomination and the placement on the national 16

register. You seem to say to me, or at least 17

and I think you say clearly, that the real 18

interest here is because of the time. And the 19

particular architecture of the bath house and 20

the CCC background with regard to the park 21

itself. But part of the nomination, isn't it, 22

is the creation of the -- of a wall? 23

THE WITNESS: Yes. 24

BOARD MEMBER BURKE: And it indicates in 25

210

that nomination that the wall also will afford 1

a place for people to sit, doesn't it? 2

THE WITNESS: Yes. 3

BOARD MEMBER BURKE: What are they going 4

to be viewing if they sit on the wall? 5

THE WITNESS: Well if they sit on the 6

wall, they will view, depending on which way 7

they look, all across the lake from one side 8

to the other and down straight ahead. Of 9

course, they will see the turbines. They will 10

see the more immediate landscape such as the 11

rock cliffs on the east side which are very 12

dramatic, the water itself, and whomever is in 13

the water. And the mountains in the distance, 14

of course, are part of it. And of course the 15

roadway and, you know, where all the houses 16

are along route 5. That's what they would 17

see, I believe. 18

BOARD MEMBER BURKE: You have been to 19

the site. 20

THE WITNESS: Oh, yes. I have been to 21

the site. And I believe -- well I'm not sure 22

if the stone wall was built -- I think it was 23

maybe two-fold purpose at least. It was built 24

because it's my understanding the park was 25

211

built -- part of it was wetland and they had 1

to bring in a lot of fill. So to keep the 2

beach from eroding the wall was built. And 3

that was a very practical purpose, but it also 4

then, of course, served the purpose of people 5

could sit on it too. 6

BOARD MEMBER BURKE: And there has been 7

some testimony, I just want to see if you 8

agree with, that while there are cliffs on 9

both sides and things that will catch your 10

view, that even those ridgelines with those 11

cliffs as they run down the lake, take you in 12

lineals that actually direct you toward the 13

mountains in the background, isn't that true? 14

THE WITNESS: I suppose. I mean you're 15

not going to just look at one thing. That's 16

true. 17

BOARD MEMBER BURKE: Thank you. 18

THE WITNESS: Yes. 19

CHAIRMAN VOLZ: I just had a few 20

questions. In your testimony on page 15 you 21

quote on lines 9 through 11 an article from 22

the Monitor from 1936. And you state there -- 23

I'll let you get there. 24

THE WITNESS: Page 15? 25

212

CHAIRMAN VOLZ: Yes. Beginning on page 1

10, I mean on line 10, the quote is much has 2

been done to afford this dream of an adequate 3

development of this excellent beach, close 4

quote. What features do you think makes the 5

beach excellent? 6

THE WITNESS: What features make it 7

excellent? 8

CHAIRMAN VOLZ: Why would they call it 9

an excellent beach compared to other beaches 10

that may have some sand and water? Virtually 11

every beach has sand and water, so what's 12

special about this one? 13

THE WITNESS: Well I think it was a 14

natural beach to begin with. I think it had 15

been used for, as you know, it had been used 16

as a beach before the park was there. It's 17

shallow, it's appropriate for children to 18

swim. 19

CHAIRMAN VOLZ: At this point the bath 20

house isn't there yet, or is it? 21

THE WITNESS: That's right. That was 22

prior to the bath house. It was a recreation 23

center, I think, for the region for the town 24

and for the -- 25

213

CHAIRMAN VOLZ: Wouldn't one of the 1

features that might make it excellent compared 2

to other beaches is the view? 3

THE WITNESS: I thought about that. And 4

yes, it has a lovely view, it does have a nice 5

view, and I think -- I guess that's true. 6

Some beaches have a distant view and some 7

beaches are more -- the views are just to the 8

next shore perhaps. And I never found any 9

mention of the view in any of the research 10

that that was taken into consideration when 11

the bath house or the view -- the beach was 12

built, the park was built. Excuse me. 13

CHAIRMAN VOLZ: Yes, I understand that 14

that's your testimony. Further down on line 15

21 or beginning on line 18 to 21 you refer to 16

a promotional brochure beautiful Barton, 17

Vermont probably dating from the 1920's. 18

Includes a photograph of the big cliff, the 19

granite ledges, and recommends a drive to the 20

shores of the lake for the quote "fine view of 21

the lake and the cliffs on the opposite 22

shore." 23

THE WITNESS: Yes. 24

CHAIRMAN VOLZ: Now when -- and you've 25

214

placed a fair amount of emphasis on those 1

cliffs as being one of the big, really good 2

features of this beach and the lake. But 3

won't the turbines in the background affect 4

the view of the cliffs? 5

THE WITNESS: No. The cliffs are on the 6

east side of the lake, and the turbines are on 7

the south side. 8

CHAIRMAN VOLZ: But when you're on the 9

beach -- when you're standing on the beach and 10

you look straight across, you see the cliffs 11

to the left and the hills? 12

THE WITNESS: That's right. 13

CHAIRMAN VOLZ: And the hills beyond. 14

And the turbines are going to be on that 15

horizon there, stretching at least almost to 16

the edge of the cliffs, if not directly behind 17

them. 18

THE WITNESS: Well I think if you're 19

wondering about referring to this quote here. 20

CHAIRMAN VOLZ: Yes. 21

THE WITNESS: It says recommends a drive 22

to the shores of the lake for a fine view of 23

the lake and the cliffs on the opposite shore. 24

Now I took that to mean from route 5. 25

215

CHAIRMAN VOLZ: So not from the beach? 1

THE WITNESS: Looking across the lake to 2

the cliffs. 3

CHAIRMAN VOLZ: Okay. 4

THE WITNESS: I don't think there were 5

any roads, you know, over by the cliffs -- 6

well I guess I would have to go back and read 7

the whole thing, but I don't think those roads 8

were really there. Route 5 was really the 9

primary road the tourists would travel on. 10

CHAIRMAN VOLZ: Okay. I had one last 11

line of questioning. Page 17 your answer to 12

the question that starts on line 7. You say 13

in your response beginning on line 10, I agree 14

with Mr. Gilbertson that the location and 15

design of Crystal Lake State Park and bath 16

house are excellent examples of the NPS's 17

emphasis on the construction of facilities to 18

enhance the public appreciation of the 19

landscape. Isn't the -- doesn't the landscape 20

-- how do you appreciate the landscape if you 21

don't have a view? Isn't that what it is that 22

you're appreciating when you appreciate 23

landscape? 24

THE WITNESS: I don't think it's 25

216

necessarily just the view. A landscape is 1

your natural surroundings. It can be very 2

intimate. It does not have to be a distance, 3

you know, experiencing something in the 4

distance. 5

CHAIRMAN VOLZ: But you don't think that 6

the phrase, the public appreciation of the 7

landscape, would include all of the features 8

of the lake which would include the view? 9

THE WITNESS: Well I think that that's 10

part of it. Yes. 11

CHAIRMAN VOLZ: Okay. All right. 12

That's all I have. Is the counsel for ANR 13

here now? 14

MS. KELLIHER: He's been here. He's out 15

in the hall. We have no questions. 16

CHAIRMAN VOLZ: You have no questions. 17

Okay. Thank you. Any other questions, any 18

other redirect for this witness? 19

MR. HAND: I don't think so. 20

CHAIRMAN VOLZ: Okay. Thank you, Ms. 21

Pritchett. Appreciate it. 22

THE WITNESS: You're welcome. 23

CHAIRMAN VOLZ: I think we are now ready 24

for Mr. Gilbertson. Could the person from ANR 25

217

who is representing ANR please enter a notice 1

of appearance? 2

MR. KESSLER: Thank you, Mr. Chair. I 3

apologize for my absence earlier. You were 4

looking for us. I'm John Kessler and Julie 5

Kelliher is also here with me. We will be 6

representing Mr. Gilbertson through the Agency 7

of Natural Resources. 8

CHAIRMAN VOLZ: All right, thank you. 9

So you're calling Mr. Gilbertson? 10

MR. KESSLER: Yes, we are. Thank you. 11

CHAIRMAN VOLZ: Why don't you go ahead 12

and introduce his testimony. 13

14

15

16

17

18

19

20

21

22

23

24

25

218

ERIC GILBERTSON 1

having first been duly sworn 2

testified as follows: 3

MR. KESSLER: Unfortunately I don't have 4

his -- I have his direct and surrebuttal with 5

me. It's not marked. 6

CHAIRMAN VOLZ: The testimony doesn't 7

need to be. Just the exhibits. 8

MR. KESSLER: Oh, okay. Well -- 9

BOARD MEMBER BURKE: I'll take a copy of 10

it as long as you've got one right there. 11

Hate to see you walk away with it. 12

MR. KESSLER: So is he sworn in? 13

CHAIRMAN VOLZ: Yes. You may continue. 14

DIRECT EXAMINATION BY MR. KESSLER: 15

Q. Mr. Gilbertson, you provided prefiled 16

testimony in this docket? 17

A. That's correct. 18

Q. And do you have copies of your prefiled 19

testimony in front of you? 20

A. I do. 21

Q. Have you had a chance to review them? 22

A. Quickly. Yes. Yes I have. 23

Q. Do you recognize those as your prefiled 24

testimony? 25

219

A. Yes. I do. 1

MR. KESSLER: Okay. And we would offer 2

those today into evidence as the prefiled 3

testimony to be taken as the testimony of Mr. 4

Gilbertson on behalf of the Division for 5

Historic Preservation. 6

CHAIRMAN VOLZ: The exhibits as well? 7

Did you have the -- have the exhibits been 8

marked? 9

MR. KESSLER: There are no new exhibits. 10

They are just the original exhibits that were 11

filed with the -- 12

CHAIRMAN VOLZ: Right. They need to be 13

marked and admitted into evidence. 14

MR. KESSLER: Separate and apart from 15

the prefiled? 16

CHAIRMAN VOLZ: Right. 17

MR. KESSLER: Oh. 18

CHAIRMAN VOLZ: Just identify them. And 19

what numbers do you want to give them? 20

MR. JANSON: Well they have been 21

premarked as exhibits ANR-EG-1, 2 and 3 and 22

then the surrebuttal exhibits have a different 23

marking. They were marked as DHP surrebuttal 24

1 and 2. Although I actually had a question 25

220

about these. It seems that DHP Surrebuttal 1 1

is the same exhibit as Mr. Gilbertson's direct 2

Exhibit 3, ANR-EG-3. I'm wondering if that -- 3

if they are identical, and if so, why the same 4

thing has been marked as two exhibits. 5

THE WITNESS: My recollection is that 6

the -- on the direct, is a partial copy of 7

that nomination specifically focused on 8

Crystal Lake. And on the various reasons, on 9

the surrebuttal are indeed a combin -- 10

MR. KESSLER: I think on the surrebuttal 11

there was a broader look at the nomination 12

language. And I think prefiled testimony 13

reflects that. So we submitted a complete 14

version of it. So I think Mr. Janson is 15

correct, the second copy is the complete copy 16

so you almost don't need the first, but that's 17

why it was done in that fashion. 18

CHAIRMAN VOLZ: Do you want to identify 19

them then, all of them? 20

MR. KESSLER: Well we have with the 21

direct testimony filed July 28 of 2006, 22

exhibits are marked as -- do you just need the 23

EG? 24

CHAIRMAN VOLZ: What the mark is and 25

221

then what it is. 1

MR. KESSLER: Okay. The mark is ANR 2

Exhibit EG-1. 3

CHAIRMAN VOLZ: And that is what? 4

MR. KESSLER: And this is the biography, 5

full resume of Eric Gilbertson. 6

CHAIRMAN VOLZ: Okay. 7

MR. KESSLER: And then the next exhibit 8

will be marked ANR-EG-2 which would be 9

criteria for evaluating the effect of 10

telecommunications facilities on historic 11

resources. 12

The third exhibit is marked ANR Exhibit 13

3 and this is the National Register of 14

Historic Places registration form that we were 15

just discussing. 16

CHAIRMAN VOLZ: That's the partial one. 17

MR. KESSLER: That's the partial one. I 18

think that might be the last one. 19

MR. JANSON: There was one marked 2. I 20

think that was Surrebuttal 2. 21

MR. KESSLER: Yes. 22

CHAIRMAN VOLZ: We haven't done 23

surrebuttal yet. 24

MR. KESSLER: That was just direct, the 25

222

3 exhibits. The surrebuttal testimony has 1

exhibits that are marked as Exhibit Number and 2

then it's DHP Surrebuttal 1 which is the 3

National Register of Historic Places 4

registration form. That's the complete. The 5

next exhibit is marked as Exhibit Number DHP 6

Surrebuttal 2, and that is the National 7

Register Bulletin how to apply the national 8

register criteria for evaluation. I believe 9

that's the last one. So there are the 10

prefiled direct and surrebuttal and 3 exhibits 11

for the first and two for the second. 12

CHAIRMAN VOLZ: Any objection to the 13

admission of the testimony and exhibits? 14

MR. HAND: No. 15

CHAIRMAN VOLZ: They are admitted. 16

(Exhibits ANR-EG-1 through 3 and DHP 17

Surrebuttal 1 and 2 were admitted 18

into evidence) 19

(Prefiled testimony of Eric Gilbertson 20

was included in the original transcript 21

only, at pages 222A through R, 22

inclusive.) 23

24

25

223

MR. KESSLER: Thank you. Mr. -- 1

CHAIRMAN VOLZ: Mr. Kessler, I have to 2

say I realize you don't practice here 3

regularly, but I would have thought that you 4

would have contacted the Department of Public 5

Service and found out what our practices are 6

here and what is expected of you. Were you at 7

the prehearing meeting this morning at 9 8

o'clock? 9

MR. KESSLER: No, unfortunately not. 10

CHAIRMAN VOLZ: In the future -- we 11

insist that the pro se litigants follow the 12

rules and know what's expected of them and 13

they show up. Same goes for ANR. I don't 14

want to see you here again not prepared. 15

MR. KESSLER: I apologize for the 16

Division on that oversight. 17

CHAIRMAN VOLZ: UPC has cross for this 18

witness? 19

MR. HAND: Yes. Thank you. 20

CROSS EXAMINATION BY MR. HAND: 21

Q. Good afternoon, Mr. Gilbertson. I just want 22

to start first by confirming a couple of pieces related to 23

other historic resources besides Crystal Lake State Park. 24

You testified in your original testimony, your direct, 25

224

rebuttal testimony, that you had some concerns about 1

private camps located on Crystal Lake State Park. And 2

whether they might be eligible for listing -- whether they 3

might be eligible and impacted by the project? 4

A. Yes. 5

Q. And at your direction Ms. Pritchett went out 6

and evaluated those projects; is that correct? 7

A. That's correct. 8

Q. And she prepared in her rebuttal testimony, a 9

report and a photographic exhibit documenting those 10

properties? 11

A. Yes. 12

Q. And you concur with her conclusion that there 13

would not be an undue adverse effect on the private camps 14

located around Crystal Lake State Park? 15

A. That's correct. 16

Q. You also concur with her conclusion that 17

Crystal Lake aside, no other historic resources in the 18

area of potential effect will be adversely or -- will 19

suffer an undue adverse effect? 20

A. Yes. That's correct. 21

Q. Okay. So your primary concern at this point 22

is the project's impact on Crystal Lake State Park? 23

A. That's correct. 24

Q. Okay. And in this instance we are not talking 25

225

about a direct impact. Correct? 1

A. That's correct. 2

Q. The physical historic features of the bath 3

house and the Crystal Lake State Park will remain intact? 4

A. That's correct. 5

Q. People will be able to visit the state park 6

and the bath house and appreciate those historic qualities 7

that -- the physical historic qualities of the building in 8

the same way? 9

A. Yes. 10

Q. Okay. And the project site in this case on 11

Granby Ridge is not a historic site itself? 12

A. That's correct. 13

Q. So we are really talking about simply the 14

visual impact of this project on Crystal Lake State Park? 15

A. Yes. On the setting of Crystal Lake State 16

Park. 17

Q. Okay. And I would like to talk about the 18

concept of setting. As I understand it, the National Park 19

Service talks about the integrity of historic resources; 20

is that correct? 21

A. Yes. 22

Q. And there are generally seven aspects to the 23

concept of integrity; correct? 24

A. Yes. 25

226

Q. Those aspects are location, design, setting, 1

materials, workmanship, feeling, and association? 2

A. That's correct. 3

Q. Okay. And together those seven components 4

define sort of the -- how the integrity of the structure 5

-- 6

A. That's right. 7

Q. And it's your opinion in this project, that 8

the only aspect that will be affected is the setting? 9

A. That's correct. 10

Q. If we can take a look at document -- your 11

Exhibit ANR-EG-3. This is the National Register of 12

Historic Places registration form. Okay. I would like to 13

look -- first let me just ask. 14

The purpose of these documents is generally to 15

document and describe the historic significance of a 16

property that may be eligible for the national register; 17

is that correct? 18

A. Yes. And the description is such that you 19

don't have to identify everything about the property. 20

It's simply to establish that it meets one of the 21

criteria, at least one of the criteria for being listed on 22

the national register. 23

Q. Okay. I think we will get into that. Let's 24

just take a sort of broad overview of this document. 25

227

There are a couple of major sections. First is the front, 1

there is an outline of sort of the 8 major sections, 2

excuse me, the 13 major sections of information that need 3

to be filled out. This is the first three pages? 4

A. Yes. Short answer check points. 5

Q. Okay. And that's followed by sort of another 6

narrative description of the property; correct? 7

A. Yes. 8

Q. And section 7 of this document is entitled the 9

narrative description? 10

A. Yes. 11

Q. And that provides just sort of a broad 12

overview of property's characteristics? 13

A. That's correct. General and broad overview. 14

Q. Okay. Now Section 8 is entitled the statement 15

of significance; is that correct? 16

A. That's correct. 17

Q. And in Section 8 this is where the document 18

should identify the criteria that the property is eligible 19

under; is that correct? 20

A. Should address those criteria, yes. 21

Q. Okay. And there are -- my understanding is 22

there are four general criteria that property could be 23

eligible for; is that correct? 24

A. Yes. 25

228

Q. And those criteria are criteria A, property is 1

associated with events that have made a significant 2

contribution to the broad patterns of our history; 3

correct, that's the first criteria? 4

A. Yes. 5

Q. Criteria B, a property is associated with the 6

lives of persons significant in our past? 7

A. Yes. 8

Q. Criteria C is that the property embodies the 9

distinctive characteristics of a type period or method of 10

construction, or represents the work of a master, or 11

possesses high artistic values, represents a significant 12

and distinguishable entity whose components lack 13

individual distinction? 14

A. Yes. 15

Q. And the final one is criteria D, property is 16

yielded or is likely to yield information important to 17

prehistory or history? 18

A. Yes. 19

Q. Okay. Now let's take a closer look at Section 20

8 for this property. I'm looking primarily here at 21

Section 8, page one, of this exhibit. 22

A. Yes. 23

Q. The bottom of this page states -- I'm looking 24

at the bottom of this first paragraph. Crystal Lake State 25

229

Park is historically significant under criteria A because 1

of its association with the CCC and the new deal in 2

Vermont; is that correct? 3

A. Yes. 4

Q. So Crystal Lake State Park has been listed as 5

eligible under criteria A? 6

A. Yes. 7

Q. Okay. Because of its association with these 8

two events? 9

A. Yes. It's one of many parks in the state that 10

the CCC helped the state develop. It's based on some 11

general guidelines that were done by the National Park 12

Service for the CCC. 13

Q. Okay. 14

A. And this -- I would say that this is unique in 15

its -- in the use of architecture. 16

Q. I think we will get to that in the next line, 17

and that's just with respect to the state park. Then we 18

are going to talk about the bath house itself. The next 19

line of the paragraph says the bath house is similarly 20

significant under criteria A, and also criteria C because 21

of its architectural design that combines the rustic 22

architecture so popular with CCC recreational park 23

structures at the time and with the contemporary style of 24

modernism? 25

230

A. Yes. 1

Q. Okay. So your understanding from this 2

description is that Crystal Lake State Park is listed 3

under criteria A, and the bath house is listed under 4

criteria A and C; is that correct? 5

A. That is correct. 6

Q. Okay. If we could turn -- let me ask you 7

this. Let's first turn actually to Cross Exhibit Number 8

16. 9

MR. JANSON: That's UPC-Cross-EG-16. 10

MR. HAND: I'm sorry. Yes. 11

BY MR. HAND: 12

Q. Do you recognize this document? 13

A. Yes. It's a portion of my deposition. 14

Q. Okay. And your deposition was taken by myself 15

and Mr. Kassel Friday the 26th of January; is that 16

correct? 17

A. Yes. I believe that's correct. 18

Q. All right. If you could just turn to the back 19

of this document, the second to last page, that's your 20

signature signing the deposition; is that correct? 21

A. Yes. 22

Q. And you had a chance to review these 23

deposition responses? 24

A. Yes. 25

231

Q. And the last page of this document, if I'm 1

correct, is an indication of corrections you would like to 2

make to the deposition; is that correct? 3

A. Yes. 4

Q. Okay. So you're comfortable with responses 5

that were given, you've reviewed and approved those 6

responses in this deposition? 7

A. Yes. 8

Q. All right. If we can look on page 21 of this 9

document, or 121 excuse me, this is an excerpt and jumps 10

from page 3 to page 121. I would like to ask to take a 11

look at one of your responses to a question here. This is 12

the last question on this page. It is how will the 13

project, referring to the UPC project, interfere with the 14

public making an association between the CCCH, is what it 15

says here, but the CCC, and the state park. And your 16

response was the way I look at it, is that the setting is 17

one of those aspects of integrity for any property that's 18

listed on the national register. The ridgeline is part of 19

that setting, it is part of the environment, the setting, 20

the sort of natural piece of the park. And introduces the 21

mechanical devices, again sort of is, interferes with the 22

public's ability, excuse me, the people's ability to 23

understand that pristine setting that is a part of the 24

park and the bath house is related to; is that correct? 25

232

A. Yes. 1

Q. Okay. And your statement there is, if I can 2

paraphrase, is that you're concerned that the setting and 3

the -- particularly this ridgeline, the project is 4

proposed on, will affect the pristine setting of Crystal 5

Lake State Park? 6

A. Yes. 7

Q. And that's your word; correct, the pristine 8

setting? 9

A. Yes, it is. 10

Q. Okay. If we can just take a moment to look at 11

-- I might have to put this up. I think we have a blowup 12

of this. UPC-DR-SSRB-1-B-1, 3 of 6. Now let me ask you, 13

did you see the word pristine in any of the listing 14

documents related to this property? 15

A. No, I did not. 16

Q. Okay. 17

A. One thing I do want to say that as you pointed 18

out that my comments about pristine are referring to the 19

ridgeline, we are discussing the ridgeline at that point. 20

Q. Okay. Well I think your response was just the 21

pristine setting. I would like to just take a moment to 22

consider the setting, the whole setting of the park, if we 23

can. Is this, as I understand it is, a view from Crystal 24

Lake State Park; is that correct? 25

233

A. Yes. 1

Q. It actually depicts two views; one of the 2

January 2007 layout, and one of the September 2006 layout; 3

correct? 4

A. Yes. 5

Q. Okay. Let's keep that up there for reference. 6

And if we can turn back now to the nomination form. And I 7

would like to look, in particular, at Section 8 page 5, 8

are you there? 9

A. Yes. 10

Q. And this is the last part of this paragraph. 11

A. First paragraph. 12

Q. First paragraph. The Town of Barton began to 13

develop its granite industry in the late 18 hundreds when 14

the railroad began to quarry the natural deposits located 15

on the eastern shore of Crystal Lake. Local business 16

owners also started a quarry to quarry the granite from 17

the shores of Crystal Lake in Barton Mountain at the 18

beginning of the 20th century. These businesses prospered 19

until the great depression when they were forced out of 20

business. Is that -- that's an accurate reading of this? 21

A. Yes. That's what the nomination says. 22

Q. And are you aware of the location of these 23

quarrying operations? 24

A. No, I'm not. 25

234

Q. Did you consider whether a view -- whether 1

Crystal Lake may have a view of these old quarrying 2

operations? 3

A. I believe that if they are on the shores of 4

Crystal Lake, you could see them. They do not show up in 5

these images. And they appear as a rock face cliff, and 6

since those quarries are over a hundred years old, they 7

are -- they were certainly in existence when the park was 8

constructed. 9

Q. Okay. Well let's just take a look at 10

UPC-Cross-EG-2. Do you recognize this view? 11

A. Yes. I believe it's from the grassy lawn 12

above the beach towards the east side of Crystal Lake. 13

Q. Okay. And these generally depict granite 14

cliffs; is that correct? 15

A. Yes. 16

Q. Is it your understanding that these are the 17

historic granite quarries? 18

A. I do not know whether they are a natural face 19

or the quarries. I have not researched that. 20

Q. Okay. The description though would be in the 21

red in the listing document, would be consistent with this 22

view, would it not? 23

A. Yes. 24

Q. The granite was quarried on the edge of 25

235

Crystal Lake State Park? 1

A. Yes. I'm not sure this is the same location. 2

As I said, I hadn't studied that. 3

Q. Okay, so at some point in the past based on 4

this picture, it's likely that views of this beach area 5

included quarrying operations? 6

A. Yes. I don't know whether those continued 7

into the time when the park was established as a park and 8

the beach house was constructed. 9

Q. Okay. Would you consider views of quarrying 10

operations part of a working landscape? 11

A. My traditional look at the working landscape 12

is one related to agriculture, but they certainly are part 13

of a working landscape. Yes. 14

Q. Okay. I just want to look at a couple of 15

other features of the view from Crystal Lake State Park. 16

If we can put down that exhibit, and we will look back at 17

the overhead or the larger exhibit here. 18

Are you aware that there are views of route 5 19

from Crystal Lake State Park? 20

A. Yes. It runs down what would be the left-hand 21

side of these pictures. 22

Q. Do you want to indicate on the photograph 23

there generally where the views are? 24

A. Route 5 runs along from here. You can't 25

236

really see clearly where it is. But it runs along that 1

side of the lake. 2

MR. JANSON: For purposes of the record, 3

you're pointing to the right-hand side. 4

THE WITNESS: The right-hand side. Did 5

I say left before? I'm sorry. 6

BY MR. HAND: 7

Q. And that cut at the end there, sort of the 8

slope on the right-hand side, that looks to be route 5; 9

doesn't it? Where the slope comes down to the lake? 10

A. It's just not clear enough for me to tell. I 11

know route 5 is located there. But I can't tell what the 12

images are. 13

Q. Okay. Do you have any idea what the annual 14

daily traffic is on route 5? 15

A. No. But what I do know about that is the 16

Crystal Lake State Park was constructed, in part, as the 17

automobile became prominent in people's recreational 18

activities. 19

Q. Okay. And there is also a railroad located on 20

that route? 21

A. Yes. 22

Q. Correct? 23

A. Yes. 24

Q. And a transmission corridor for electricity? 25

237

A. I believe there is a set of power lines. 1

Q. Okay. And so all those are in the general 2

viewscape from Crystal Lake State Park? 3

A. In the general viewscape. Yes. 4

Q. So the park currently has views of 5

infrastructure of a number of types? 6

A. Yes. 7

Q. Okay. Let's come back to your deposition 8

which is UPC-Cross-EG-16. And I would like to have you 9

review -- looking now at page 124. And this is a 10

continuation of our discussion about how the project may 11

affect the setting of Crystal Lake State Park, and in 12

particular the public's ability to interpret the view from 13

Crystal Lake State Park. 14

The question on this page, does it interfere 15

with their ability to interpret the building if they are 16

looking at the building, and your response is interferes 17

with their ability to interpret the siting of the 18

building; is that correct? 19

A. Yes. 20

Q. And I believe you may have corrected that term 21

the siting of the building to the setting of the building. 22

A. Yes. 23

Q. In your corrections? 24

A. Yes. 25

238

Q. And you're asked a follow-up question here of 1

how? Can you please read your response to that question? 2

A. You've removed one of the aspects of the 3

setting, so people -- I hate reading this stuff, you know, 4

it's not a dramatic, huge thing, but it does diminish that 5

ability for the public to understand and appreciate the 6

setting of the park at the time it was built in 1940. 7

Q. And the next question is but how? You say it 8

removes an aspect of the site. It doesn't physically 9

remove the ridge; correct? 10

A. No. 11

Q. And your response, can you read that, please? 12

A. It doesn't remove the ridge. It creates an 13

addition on the ridge that is not in character with the 14

setting. Sort of an introduction of -- sort of an 15

introduction of freestall barn on a farm is within the 16

character of that property, introduction of a row of wind 17

turbines on a ridgeline is not within the character of 18

that ridgeline. 19

Q. Okay. Are you saying there that if a feature 20

is out of character with the setting, that it results in 21

an undue adverse effect on the property? 22

A. Yes. 23

Q. That sounds very similar, does it not, to the 24

first prong of the Quechee test. Are you familiar with 25

239

the Quechee test? 1

A. We use the Middlebury test. 2

Q. You use the Middlebury test? 3

A. Yes. 4

Q. But the language you've used here is, in fact, 5

quite similar to the Quechee test; isn't it? 6

A. Yes. 7

Q. So in your interpretation here and 8

application, in this circumstance, is that simply if it's 9

out of character with the setting, the view of it is out 10

of character with the setting, it results in an undue 11

adverse effect? 12

A. There, of course, are degrees of being out of 13

character with the setting. 14

Q. Okay. And if you refer earlier -- you 15

actually said that this is not a dramatic huge thing; is 16

that correct? 17

A. That -- that's correct. That's what I said. 18

Q. So it's not a dramatic huge effect on the 19

setting of the property? 20

A. I would say that well -- it's not a dramatic 21

huge effect, but it is clearly a negative effect on what 22

is essentially a vista down the lake to a pristine 23

ridgeline, and I believe in my direct testimony, I 24

characterized it as being akin to some of the Hudson River 25

240

School of Painting where you have a very focused view that 1

-- towards that ridgeline. And the introduction of the 2

turbines on that ridgeline is certainly out of character 3

with that aspect of the setting. 4

Q. But not in a dramatic way. You say not in a 5

dramatic, huge thing? 6

A. Yes. 7

Q. I just want to be clear about your statement. 8

A. Yes. 9

Q. Okay. Are you familiar with the aesthetics 10

analysis prepared -- several aesthetics analyses prepared 11

in this case? 12

A. I have primarily looked at this 13

representations, and read some of the aesthetics. I'm not 14

intimately familiar with it, because our evaluation of 15

things, while it relates to visual aspects, does not 16

necessarily relate to aesthetics. 17

Q. So you're saying that the aesthetics analysis 18

conducted in this case is different than a visual analysis 19

conducted by you? 20

A. Yes. And I primarily used Mr. Raphael's 21

representation of what the turbines would look like. I 22

did do a site visit and looked at it personally. 23

Q. Okay. Are you -- have you reviewed Mr. Kane's 24

report prepared on behalf of the Department of Public 25

241

Service? 1

A. I may have looked at it. But I don't -- I 2

haven't reviewed it in any detailed way. 3

Q. Did you review any of his testimony in this 4

case? 5

A. Quickly. 6

Q. Quickly. Are you aware that he took the 7

position in his surrebuttal testimony that if the two 8

turbines located on the bottom layout in this photo, the 9

September '06 layout, two turbines in Sutton were removed 10

from that location, that this project would most likely be 11

permittable under the Quechee test? 12

A. I hadn't read that technically, but I heard 13

that that was said. Yes. 14

Q. Are you aware of his testimony earlier this 15

week, in which he testified that the January '07 layout in 16

his opinion, the aesthetics impact of that was not unduly 17

adverse on the view from Crystal Lake State Park? 18

A. I understood that's what he was going to say, 19

but I wasn't here. 20

Q. Okay. 21

A. What I would point out is that I -- looking at 22

these two, I fail to see any readily definable difference 23

between the layouts in this view. I believe it's either 24

exactly the same number of turbines that you can see from 25

242

here, or one difference in the impact on that ridgeline of 1

these large turbines that are, I believe, 42 stories tall 2

is significant on a ridgeline. 3

Q. I would like to ask you just about that 4

position. Do you have a copy of your surrebuttal 5

testimony in front of you? 6

A. Yes. 7

Q. Looking at page four of five of your 8

surrebuttal testimony. Question 9. You're discussing the 9

revised -- this is the September revision to the project. 10

The question is based on the revised project plans. How 11

does the design of -- how is the design of the turbines 12

changed. 13

And your response is the turbines increase in 14

total height from 398 to 420 feet, measured from the base 15

of the pole to the one blade in the vertical position. In 16

addition the length of each blade is increased from 14 to 17

15 feet; is that correct? 18

A. That's correct. 19

Q. And then in the next question you take the 20

position, do you not, that the 13 foot increase in the 21

blade length will make the turbines even more visually 22

intrusive than in the previous plan when viewed from 23

Crystal Lake State Park? 24

A. That's correct. They are 13 feet taller. 25

243

Q. I just want to understand. It's your position 1

that the 13-foot change when viewed from 5.7 miles away, 2

will make the turbines even more visually intrusive? 3

A. Yes. 4

Q. And you believe that that limited change will 5

be visible -- actually visible from Crystal Lake State 6

Park? 7

A. Because it's larger, it will make them more 8

visible. I'm not sure that's a measurable distance at 13 9

feet at 5.8 miles or 5.7 miles. 10

Q. You thought it was important enough though to 11

cull it out in surrebuttal testimony? 12

A. Yes. Right. They got larger. That was my 13

point. There is no fewer turbines, and the ones that are 14

there got larger. 15

Q. Okay. I would like to ask you just a few 16

questions, if I can, about the Department -- or excuse me 17

-- the division's previous position in some other wind 18

farm cases. 19

A. Yes. 20

Q. If I can. Are you familiar with the East 21

Haven Windfarm project? 22

A. Yes. 23

Q. Are you aware that in that case the division 24

did not apply the 10 criteria to telecommunication towers, 25

244

to that project when interpreting the view of that project 1

from historic properties? 2

A. We may not have applied them in a formal way. 3

But we did use them as a guide to our comments. 4

Q. Okay. Are you aware that the East 5

Haven Wind project would be visible from a state park, 6

would have been visible from a state park? 7

A. Yes. 8

Q. And that state park is Maidstone state park? 9

A. Maidstone state park. 10

Q. And the project would have been visible -- it 11

would have been about 6 miles away; correct? 12

A. That's about right. Yes. 13

Q. And isn't it true that the division did not at 14

that time consider the impacts on Maidstone state park? 15

A. We relied on the visual representations that 16

were presented with the application as we usually do. And 17

we relied on those in the -- and that has the advantage of 18

actually having the radar tower in the view, and you can 19

-- you can see that, but I would point out that the -- 20

this is not a focused vista view as of Crystal Lake State 21

Park. 22

Q. Mr. Gilbertson, I just want to ask you, did 23

you actually consider the impact on Maidstone state park 24

prior to providing any letters to the applicant? 25

245

A. I don't recall it specifically. But we 1

routinely review the information that's provided to us to 2

review. 3

Q. Okay. So you don't recall if you considered 4

the impact. Approximately the same distance, about 6 5

miles in this case? 6

A. Right. 7

Q. Correct? Okay. 8

MR. JANSON: Mr. Hand, if you're moving 9

on. 10

MR. HAND: Yes. 11

MR. JANSON: Just so the record is 12

clear, Mr. Gilbertson, is Maidstone Lake State 13

Park either on the national, federal or state 14

register? 15

THE WITNESS: It's on the national 16

register. 17

BY MR. HAND: 18

Q. If I can just follow-up, it was actually 19

listed before the wind farm project was proposed; is that 20

correct? 21

A. I believe that's correct. Yes. 22

Q. And there are views of the East Haven site 23

from the shores of Maidstone state park; correct? 24

A. You can see the site. You can see the radar 25

246

tower. And again I want to emphasize the difference that 1

having a vista and a terminal ridge at the end is to 2

simply be able to see it over an intervening hill and 3

being 6 miles away. 4

Q. But you didn't actually consider those aspects 5

at the time; correct? 6

A. I've looked at it since in the last couple of 7

weeks. 8

Q. But not when the permit application was 9

pending? 10

A. I don't specifically recall. I may have done 11

that. It would have been a rather short review, I 12

suspect. 13

Q. The division in that case we talked a little 14

bit about it. There was an old Air Force base on the top 15

of this mountain; correct? 16

A. Yes, a radar station. A DEW line radar 17

station. 18

Q. That has some historical significance from the 19

cold war. It was designed to protect against Soviet 20

bombers coming into the United States; correct? 21

A. Correct. 22

Q. It was visible from Maidstone state park, the 23

radar base? 24

A. Yes. 25

247

Q. You could see it on the ridgeline; correct? 1

A. Yes. 2

Q. In that case the division only looked at the 3

direct impacts to the Air Force base from the wind 4

project? 5

A. I would say that we did not believe there were 6

any indirect impacts. 7

Q. Okay. And in that case you were okay with 8

removing the majority of this historic structure that's 9

viewed from a distance, and replacing it with wind farm -- 10

the wind farm; is that correct? 11

A. Yes. 12

Q. Okay. Let's talk now briefly about the 13

Equinox project. Are you familiar with that project? 14

A. Yes. 15

Q. We talked about it a couple weeks ago; 16

correct? 17

A. Yes. 18

Q. If you can turn to UPC-Cross-EG-12. 19

BOARD MEMBER BURKE: That one is 20

confusing. You've got 10s and 12s and all 21

kinds of stuff. 22

MR. HAND: We used these in the 23

deposition as well. I apologize. 24

BOARD MEMBER BURKE: I know you did. 25

248

MR. COTTER: Thank you for clarifying 1

that for me. I was staring at it going -- 2

BOARD MEMBER BURKE: You hadn't found it 3

yet? Takes a minute. 4

THE WITNESS: I'm having a hard time 5

finding it. 6

CHAIRMAN VOLZ: Is that the letter from 7

State Agency of Commerce -- 8

BY MR. HAND: 9

Q. This is a letter from the division signed by 10

you concerning your reviewing of the Equinox wind farm; is 11

that correct? 12

A. Yes. 13

Q. Okay. In this letter you state that you 14

reviewed the impacts of a project proposed on little 15

Equinox Mountain with respect to certain historic 16

properties in the town of Manchester; is that correct? 17

A. That's correct. 18

Q. And the project under consideration was a 19

five-turbine project; is that correct? 20

A. Yes. With 200 foot tall turbines. 21

Q. 200 foot tall towers with blades on top of 22

those? 23

A. I'm not sure. 24

Q. Okay. In this letter you state that the wind 25

249

farm will have an adverse impact, but not an undue adverse 1

impact. Looking on page two of three; is that correct? 2

A. Yes. That paragraph right below the numbered 3

series. 4

Q. Yeah. And one of the reasons you state that 5

it will not have an undue adverse impact is that also the 6

new towers, this is the last sentence on this page, also 7

the new towers like the ones previously installed on 8

Little Equinox will be installed in such a manner that if 9

removed in the future, the integrity of the surrounding 10

historic resources will be unimpaired; is that correct? 11

A. That's correct. Yes. 12

Q. So in this case it was relevant to your 13

analysis that the turbines would not be permanent; is that 14

correct? 15

A. Yes. 16

Q. Did you consider that aspect in evaluating the 17

UPC project? 18

A. The Little Equinox has a history of two wind 19

farms that have been removed. 20

Q. Eric, I just want to -- excuse me, Mr. 21

Gilbertson, if you can just answer my question. Did you 22

consider that aspect when evaluating the UPC project? 23

A. I'm not sure that I looked at the part of the 24

application that said they were going to be removed. I 25

250

heard later after my testimony, that they -- there was a 1

decommissioning plan. I did not review that 2

decommissioning plan. 3

Q. And at the time you wrote this letter, there 4

were no wind turbines on Little Equinox Mountain; correct? 5

A. That's correct. 6

Q. And this project proposed to put wind turbines 7

on Little Equinox Mountain; correct? 8

A. That's correct. 9

Q. And you considered it important enough to put 10

in your letter that they might be removed as a factor to 11

consider? 12

A. Yes. 13

Q. Let me ask you, did you consider the views 14

when evaluating Little Equinox Mountain, did you consider 15

the views from all of the historic properties in the area? 16

A. I'm not sure we included everyone. We 17

included Equinox hotel, some views from the village in 18

Manchester, the Manchester Center, and general views in 19

that area. 20

Q. Isn't it true that this project would have 21

been visible from the gardens at Hildene? 22

A. I did not review that. I would assume that it 23

might be visible in some fashion from there. 24

Q. But you didn't actually review that? 25

251

A. I did not actually review it. 1

Q. Okay. And isn't it true that this project was 2

proposed to be located on Skyline Drive in Equinox -- in 3

Manchester? 4

A. Along Skyline Drive. Yes. 5

Q. And Skyline Drive to your recollection is a 6

road that goes up big Equinox Mountain; correct? 7

A. Yes, up to the top of Equinox Mountain, yes. 8

Q. It provides panoramic views of the Town of 9

Manchester? 10

A. Yes. It is not on the -- listed on the 11

national register. 12

Q. To the best of your recollection is Skyline 13

Drive eligible for listing? 14

A. I would have to do a more thorough evaluation. 15

It may be. But I just don't have enough information to 16

make that determination at this point. 17

Q. And these wind turbines proposed on Little 18

Equinox Mountain would have been immediately visible from 19

Skyline Drive, they were located on Skyline Drive; 20

correct? 21

A. Right. 22

Q. And you didn't consider the impacts in that 23

project to the views from big Equinox Mountain on Skyline 24

Drive? 25

252

A. No. Again big Equinox Mountain is a natural 1

site. It's not a historic -- it's not listed on the 2

national register, or nobody has determined eligible if it 3

hadn't been determined eligible. And we very specifically 4

look at the impacts of projects on historic properties. 5

We don't look at those impacts on any property. 6

Q. Okay. But it may be eligible and you're 7

required to look at properties? 8

A. Yes. 9

Q. That may be eligible, not just listed; 10

correct? 11

A. Yes. 12

Q. Okay. Let me ask you. Let's jump back now to 13

the UPC project. I think we can all agree that this is a 14

scenic view; correct, from Crystal Lake State Park? 15

A. Absolutely. 16

Q. And isn't it true that it will still be scenic 17

after the wind turbines are placed there? 18

A. It will still be scenic, but there will be a 19

major intrusion in that scenic view. Or readily 20

identifiable intrusion of these large mechanical devices 21

in that -- in that pristine ridgeline. 22

Q. And you stated in your deposition that you 23

would consider the views still scenic from Crystal Lake 24

State Park? 25

253

A. Yes. Yes. 1

Q. Okay. Let me ask you just as a conclusion, 2

the Board here typically engages in a balancing of the 3

adverse impacts of the project with the public benefits of 4

the project. 5

A. Yes. 6

Q. Have you, in your analysis of this project, 7

done any type of that balancing? 8

A. No. That's the Board's job. I think that my 9

job is to present the best evidence I can of any impacts 10

that I determine for the Board to consider. If I 11

considered these -- took into consideration other aspects 12

I think I would be usurping the Board's authority. 13

Q. Your finding it's just with respect to the 14

impacts on historic resources? 15

A. Yes. 16

Q. Not considering the potential public benefits? 17

A. Yes. 18

Q. Okay. Just one second. 19

MR. HAND: I think that's it. 20

CHAIRMAN VOLZ: Thank you. 21

MR. HAND: I think we would move to 22

admit UPC-Cross-EG-16. And UPC cross -- let 23

me do this numerically. Hang on. 24

UPC-Cross-EG-2. 25

254

CHAIRMAN VOLZ: Mr. Ide, you'll be 1

coming right back, right? 2

MR. IDE: Yes, I will. I'm not -- 3

MR. COTTER: Trying to avoid the need to 4

do this in the middle of examination. 5

MR. HAND: UPC-EG-12 and UPC-EG-16. 6

MR. JANSON: Excuse me. I want to make 7

sure I heard that that's 2, 12 and 16, was 8

that? 9

MR. HAND: Sorry. 10

MR. JANSON: 2, 12 and 16? 11

MR. HAND: Yes. 12

CHAIRMAN VOLZ: Any objection? 13

MR. KESSLER: No objection. Thank you. 14

CHAIRMAN VOLZ: They are admitted. 15

(Exhibits UPC-Cross-EG-2, 12 and 16 were 16

admitted into evidence) 17

MR. JANSON: Good afternoon, Mr. 18

Gilbertson. 19

THE WITNESS: Hi. 20

MR. JANSON: Let me cover an area that 21

Mr. Hand has already asked you some questions 22

about. I'll try to be specific here. In your 23

prefiled testimony, your first testimony, at 24

page 10, page ten, lines 19 to 21 you state 25

255

the spectacular views of Crystal Lake and the 1

surrounding mountains from the bath house and 2

beach are cited in the national register 3

nomination as one of most important features 4

of the site. Can you point to where in the 5

nomination those views are identified as one 6

of the most important features? I saw the 7

references to the views, but I want to 8

understand where you think they are identified 9

as one of the most important features. 10

THE WITNESS: In the description on page 11

2 of that number one, the description of the 12

bath house, it says the building faces Crystal 13

Lake, the beach, and scenic vistas of the 14

water and mountains. I consider that an 15

important aspect of it. And -- 16

MR. JANSON: Let me try to kind of cut 17

to the chase here. For me, at least, I think 18

in surrebuttal testimony you indicated that in 19

four places in the nomination views and vistas 20

are identified. 21

THE WITNESS: Yes. 22

MR. JANSON: I'm just wondering if this 23

says in plain terms somewhere in the 24

nomination these views are one of the most 25

256

important features, or is that something you 1

yourself draw from -- 2

THE WITNESS: It's something that you 3

draw from it as part of the setting, and the 4

setting is larger than the area specifically 5

outlined in the nomination. Because the 6

nomination doesn't go all the way to the 7

ridgeline. And in most cases, you can see 8

beyond what the nomination is. 9

And I think that it's also something 10

that is important about national register 11

nominations, they are not sort of the end all 12

documentation of a property. They are -- they 13

simply have to pull the trigger on one of 14

those four criteria we discussed earlier. And 15

if you want that sort of end all kind of 16

documentation, you go to the historic American 17

buildings surveyor, the historic American 18

buildings record which actually does major 19

drawings of buildings. And in the kind of the 20

scenery, and this is a stronger call out of 21

scenery and scenic views by calling it a 22

vista, and if you look at the design of the 23

bath house, with the windows and rising on 24

this clearly directed down this vista. So 25

257

that's probably why I make my statement. Is 1

aspects just everything -- just doesn't get 2

called out because otherwise this would be a 3

200-page long document, you would be here 4

longer. 5

MR. JANSON: Interesting thought. The 6

nomination was -- or the nomination was filed 7

in July of 2005, I believe, by your office. 8

THE WITNESS: Yes. I believe that's 9

correct. 10

MR. JANSON: And I think your testimony 11

indicates that the state park was entered on 12

the national register in August of 2005. 13

THE WITNESS: Yes. 14

MR. JANSON: Why would a historic 15

resource like this not have been nominated or 16

listed sooner? 17

THE WITNESS: Well it's a couple of 18

issues. One is it's somebody has to pay 19

somebody to do these nominations in a usual 20

case. And what we have established with the 21

UVM, University of Vermont Historic 22

Preservation Program, is students are -- do a 23

nomination, they pick a theme. And students 24

did -- I'm not going to say all of the state 25

258

parks, but most of the historic state parks, I 1

believe there is 13 of them, that they 2

nominated as part of a student project. And 3

it's a great way, we did this in cooperation 4

with the Department of Forest and Parks. And 5

it's a great way to get stuff listed on the 6

national register, train a student, and not 7

have any expenses to the property owner. 8

Otherwise, they simply probably wouldn't get 9

listed. Forest and Parks isn't going to pay 10

to have these done. 11

MR. JANSON: So is the Crystal State 12

Park nomination one of these student's 13

projects? 14

THE WITNESS: One of these student 15

projects, yes. But those student projects are 16

reviewed in our office for completeness and 17

thoroughness. They vary a lot. All 18

nominations vary a lot in exactly what is 19

called out and how extensive the 20

documentation, how extensive the history is. 21

So as I said, all they have to do is sort of 22

establish that they meet a criteria. 23

MR. JANSON: And the nomination for 24

Crystal Lake State Park was filed by and 25

259

signed by somebody in your office? 1

THE WITNESS: Yes, Suzanne Jamele. 2

MR. JANSON: Thank you. 3

BOARD MEMBER BURKE: Mr. Gilbertson, you 4

said you've got your surrebuttal right there 5

in front of you, right? Your surrebuttal 6

testimony. 7

THE WITNESS: I think so. 8

BOARD MEMBER BURKE: You don't have it? 9

THE WITNESS: Yes, I do. 10

BOARD MEMBER BURKE: Would you turn to 11

page 5 of that. Now I know by definition this 12

was answered before the final revision of this 13

project was accomplished. 14

THE WITNESS: Yes. 15

BOARD MEMBER BURKE: I want you to take 16

a look at question 12. And your answer to 17

that. 18

THE WITNESS: Yes. 19

BOARD MEMBER BURKE: Okay. Now I want 20

you to take a look now at the revised layout 21

that we have there. And understand that in 22

the September -- you have to make a little 23

leap here that the two turbines on the far 24

left side of the revised layout are now 25

260

repositioned farther to the right. Okay? 1

THE WITNESS: Okay. 2

BOARD MEMBER BURKE: So the first 3

portion of the ridgeline now has from the left 4

to the right, the first portion that you see 5

of that ridgeline, no longer has turbines on 6

it, you understand that, right? 7

THE WITNESS: This area right here? 8

BOARD MEMBER BURKE: Yes. Okay. Now I 9

assume that you would want to -- based on that 10

you would want to modify your answer because 11

now they are not strung out across the width 12

of the ridgeline, is that true? 13

THE WITNESS: My modification would be 14

very minor because you've eliminated two 15

turbines in this dip in the ridgeline, but it 16

still goes all the way across. I would say 17

you've eliminated 20 percent at the most. 18

BOARD MEMBER BURKE: But now it's part 19

of the width of the ridgeline. 20

THE WITNESS: Part of the width. A 21

large part of it. 22

BOARD MEMBER BURKE: Okay. Since you 23

didn't even raise that as an issue at all, I'm 24

going to ask you if there was only one turbine 25

261

up there, would you still feel the same way 1

about the impact on the -- it's still big, 2

it's still new, and it's still white. 3

THE WITNESS: This is speculation, 4

without any -- 5

BOARD MEMBER BURKE: Well you're an 6

expert witness. Assume there is one turbine 7

up there. 8

THE WITNESS: It would depend on where 9

it was located. 10

BOARD MEMBER BURKE: Right in the 11

middle. 12

THE WITNESS: I would say that would 13

certainly reduce the impact, and I don't want 14

to give a quick answer because we do give 15

these things a lot of consideration. I don't 16

want to give a quick answer to say it 17

eliminates it. 18

BOARD MEMBER BURKE: So what I'm trying 19

to see is where you're really coming from 20

here. If it's taking you that long to answer, 21

obviously you might be willing to say that one 22

turbine would be enough to degrade that, 23

right? Just one maybe? 24

THE WITNESS: Maybe. 25

262

BOARD MEMBER BURKE: At the time the 1

bath house, which is apparently the focal part 2

of all of this, was built, there was -- it was 3

established that there was a granite quarry, 4

and it only stopped at about the same time the 5

boat house was built on the shore. I assume 6

you've seen granite quarries before. 7

THE WITNESS: Oh, yes. 8

BOARD MEMBER BURKE: So if you really 9

want things to remain basically the same, 10

should you be advocating that there should be 11

defoliation of the cliffs so that you can 12

still see the granite quarry? So it's just 13

like it was when the boat house was built? 14

THE WITNESS: I think we would 15

anticipate change such as trees growing higher 16

on the ridgeline. I don't know what the 17

condition of that ridgeline was when the boat 18

house was built. I assume it was basically 19

the same. I don't know whether the trees are 20

larger or smaller. 21

BOARD MEMBER BURKE: They allow power 22

boats on Crystal Lake now? 23

THE WITNESS: I have not been up there 24

enough to make a comment on that. 25

263

BOARD MEMBER BURKE: Do you know if they 1

allow jet skis? 2

THE WITNESS: I've heard -- I have 3

second hand information that they do allow jet 4

skis. If I were reviewing it, and could 5

review the use of jet skis, I might consider 6

them an interference to the pristine 7

environment. 8

BOARD MEMBER BURKE: Thank you, you got 9

me where I needed to go. Thank you. I don't 10

have any other questions. 11

THE WITNESS: But they don't require a 12

permit unless I guess -- 13

CHAIRMAN VOLZ: Any cross occasioned by 14

our questioning? Any redirect? 15

MR. KESSLER: If I may, Mr. Chairman. 16

CHAIRMAN VOLZ: Sure. 17

MR. KESSLER: Thank you. 18

REDIRECT EXAMINATION BY MR. KESSLER: 19

Q. Mr. Gilbertson, there were some questions you 20

asked about East Haven and a proposed wind project there. 21

What were the number of wind turbines, if you recall, that 22

were proposed for that? 23

A. In my review of that project, recent review of 24

that project, I have two numbers. One was 50 which I 25

264

think is a mistake. I think it ended up the actual review 1

and simulations were 5. 2

Q. Okay. And you were asked some questions 3

involving a cold war era radar site that was visible. Do 4

you have knowledge at all of what the condition of that 5

facility is? 6

A. It's in a very deteriorated condition. It 7

was, you know, considered a hazard because people do go up 8

there, and -- 9

Q. Okay. And with respect to the wind project 10

you were asked about at Mt. Equinox or one of the Mt. 11

Equinoxes -- 12

A. Yes. 13

Q. -- that proposed location for the wind project 14

there, was it in a framed vista like on Crystal Lake or 15

was it different? 16

A. No. It was not a framed vista. Since in the 17

cross we didn't discuss it or -- really but in the cross, 18

witness list, they presented a view from Hildene was what 19

I assume is East Mountain, or Little Equinox. And this is 20

not a framed vista as Crystal Lake is. 21

Q. Could you describe the difference then between 22

if a wind project were constructed on that location near 23

-- on Mt. Equinox, the impact on say Hildene and those 24

historic gardens that there were photographs of, and the 25

265

impact of wind turbines on the historic resource at the 1

Crystal Lake State Park? 2

A. I think if one looks at the different levels 3

of visibility, and visual focus, they are significantly 4

different. You might have a panorama with many different 5

things looking at it. You might be able to see something 6

if you looked for it, and you know, in that case, the 7

impacts are really minimal, if you have to look for it. 8

It's very different when you have a focused vista as part 9

of the view shed. 10

Q. So how would you translate that as well into 11

the impact on the resource at Crystal Lake State Park and 12

public appreciation, public benefit? 13

A. I think that you could not visit Crystal Lake 14

State Park given reasonable weather and eye sight, without 15

seeing this vista and seeing the turbines if they were 16

present. I think there is no way you could do that. I 17

think my understanding of the Hildene image is that you 18

could easily visit the gardens, and if you didn't happen 19

to look in the direction of the Little Equinox, you would 20

not see those. 21

Q. And you were asked about granite quarries that 22

were in operation in the early part of the 20th century. 23

And they were described as being located, I would say, to 24

the left as you're looking from the bath house. 25

266

A. Yes. 1

Q. And whether or not you considered the impact 2

from those. What's the difference between a project 3

located in terms of impacts on the bath house and the 4

national register historic resource, what's the difference 5

between impact from a project located as proposed on that 6

ridgeline, and if there were a quarry off to the left that 7

were being proposed? 8

A. This is a center-framed vista. And I'm 9

without -- if somebody proposed a quarry there now, we 10

would probably find reason to object to it under Act 250. 11

MR. JANSON: When you say a quarry 12

there, you mean on the -- where the historical 13

quarry operations were? 14

THE WITNESS: Right, in that image that 15

was -- 16

BOARD MEMBER BURKE: By the way, Mr. 17

Gilbertson, am I right that the bath house is 18

well to the left much closer to where the 19

quarry apparently was than this vista that -- 20

than this picture that was actually taken 21

here? 22

THE WITNESS: I think the bath house if 23

you sort of divided that end of the lake into 24

three parts, I think it's in the division 25

267

between the first and the second part from 1

right to left here. 2

BOARD MEMBER BURKE: Yeah, to the left 3

and that's where the quarry was, right? 4

THE WITNESS: The quarry was to the 5

left. 6

BOARD MEMBER BURKE: So the quarry would 7

be closer to the view from the bath house. 8

THE WITNESS: Than? 9

BOARD MEMBER BURKE: Than it is from 10

this particular vista. 11

THE WITNESS: I think this vista is 12

taken right in front of the bath house. I'm 13

not sure of the exact location, but that's 14

what it appears to me to be. It's very close 15

to the center of the bath house. 16

BOARD MEMBER BURKE: Okay. 17

MR. KESSLER: Okay. I'll finish up 18

then. 19

BY MR. KESSLER: 20

Q. Mr. Gilbertson, this bath house was 21

constructed in the mid 20th century; correct? 22

A. Yes. 1941. 23

Q. And I know we have -- there has been 24

discussion about this quarry that might have been in 25

268

operation, was in operation, but in terms of the 1

eligibility for the national register, if we understand 2

the listing process that's been discussed, the bath house 3

itself wouldn't have been considered historic until 4

sometime I'm assuming -- 5

A. The general guideline is 50 years. 6

Q. Okay. And the last issue I would like to ask 7

you about is you were asked a number of questions by Mr. 8

Hand about the registration form, the registration for the 9

national register. And you were also asked by Mr. Janson 10

about where the view is mentioned. 11

Could you just describe in terms of the 12

national register process if you're familiar with national 13

registered historical sites that aren't heavily documented 14

for their views but have undoubtedly good views? 15

A. Well there is a couple that come to mind. One 16

is the nomination for Mt. Independence, one of our state 17

owned historic sites which has views of Lake Champlain. 18

And the only way the views are mentioned in there is part 19

of the reason it is situated for military reasons and the 20

narrows of the lake, and you could view north of the lake, 21

anticipate an invasion from the north. 22

The other one that serves -- sort of strikes 23

me is Shelburne Farms which is not only on the national 24

register, but a national historic landmark. And the views 25

269

are mentioned in that nomination, they are not 1

particularly described, and that's a federal law, 2

homestead land and landscape. There are no pictures 3

within national historic landmark with the views 4

nomination. There are two pictures of the garden in the 5

1980 national register nomination that show a hazy 6

background of Lake Champlain and the Adirondacks. But 7

it's clearly the focus of the picture is the gardens. 8

So I guess the point is that the dominant -- 9

the nominations vary a great deal. They don't always take 10

pictures of the views. The state parks -- I looked at the 11

state parks nominations over the last couple of weeks and 12

they sometimes mention the views, sometimes they don't. 13

Sometimes they have pictures. Sometimes they don't. 14

Sometimes there is no views, or in the case of Mt. Philo 15

the view is from -- the panoramic view from there, is 16

certainly the dominant piece in the site. 17

BOARD MEMBER BURKE: So should we just 18

ignore the nominations and take for the fact 19

that they are on the historic register and 20

forget about it? 21

THE WITNESS: No, you shouldn't ignore 22

the nominations, but the nominations do not 23

include all the information about the site. 24

They would be burdensome documents both to 25

270

fill out and read if that was the case. All 1

it has to do are sort of establish that 2

criteria, that it meets one of the four 3

criteria, at least one of the four criteria. 4

And then like I said, every aspect of it is 5

not described. And the nominations do tend to 6

focus on the buildings. 7

BOARD MEMBER COEN: You mentioned the 8

Mt. Independence park, does the framed view 9

shed from Mt. Independence of the lake include 10

the International Paper plant? 11

THE WITNESS: You can't see it. 12

BOARD MEMBER COEN: You can't see it. 13

THE WITNESS: From there. 14

BOARD MEMBER COEN: You can see the 15

plume. 16

THE WITNESS: You can see the plume, but 17

you can't see the plant itself. That's kind 18

of tucked around behind Fort Ticonderoga. 19

BOARD MEMBER COEN: The plume is about 20

420 feet tall. 21

THE WITNESS: I would have no idea. 22

It's probably taller than that. I don't know 23

how tall the stack is on that either. 24

BY MR. KESSLER: 25

271

Q. So at least in this national register listing, 1

though for Crystal Lake State Park and the bath house, 2

what is your understanding of how the setting is described 3

in terms of its relationship to the integrity of this 4

property? 5

A. I go back to what I read before, that the 6

siting to -- just a second here, read the section, 7

building faces Crystal Lake. The beach, the scenic 8

vistas, water and the mountains. Apparently culls this 9

out. 10

Q. And the narrative description, is it also -- 11

is there anything in there that you would find that culls 12

that out at least to signal that this is a part of the 13

importance of the resource? 14

A. Well that is from the narrative description of 15

the bath house, it's page two of section 7. 16

Q. Oh, okay. If you could look at section 1 -- 17

section 7 page one, at the bottom of that first paragraph, 18

I wonder if that would -- if that description would help 19

conclude your testimony? 20

A. Page one of the narrative description. 21

Where were you calling my attention to? 22

Q. Right to the bottom of the paragraph. The 23

first paragraph. 24

A. Oh, okay. 25

272

MR. HAND: I'm going to object. I'm not 1

sure there is a question here. He seems to be 2

directing him to read a section of it. If 3

he's got a question about it, that will be 4

helpful. 5

MR. KESSLER: I was just asking him if 6

that would help him to conclude that the 7

answer to describing the significance of the 8

view to the resource, even though there is no 9

photo and specific statement of that. 10

THE WITNESS: I believe the -- 11

MR. HAND: That seems to be a little 12

more leading him to make a statement about 13

something. I think he's testified as to his 14

opinion on the listing document. 15

CHAIRMAN VOLZ: Yes. I think that's 16

correct. Also this is in evidence. You can 17

argue it directly from this if you want. 18

MR. KESSLER: Okay. Fine. I have no 19

further questions. It was just an attempt to 20

conclude. 21

MR. COTTER: Could I have a quick moment 22

with counsel before Mr. Gilbertson steps down? 23

CHAIRMAN VOLZ: Sure. 24

(Pause) 25

273

MR. HAND: I did have two very quick 1

recross questions based on your questions. 2

I'm going to try to keep it to two. 3

MR. KESSLER: Thank you, Mr. Chair. No 4

further questions from us. 5

CHAIRMAN VOLZ: Okay. What I would like 6

to do now is confirm that UPC still has 45 7

minutes of questions for Mr. Ide. I'm sorry, 8

you still have two more questions? 9

MR. HAND: If you don't mind. 10

RECROSS EXAMINATION BY MR. HAND: 11

Q. You mentioned Mt. Philo state park? 12

A. Yes. 13

Q. The panoramic views from Mt. Philo state park 14

are specifically described in the listing document; 15

correct? 16

A. Yes. 17

Q. Did you consider the impact the division -- of 18

the Northwest Reliability Project based on those views, 19

did you consider the impact on Mt. Philo state park? 20

A. We did not. That's not a focused vista. It's 21

a panorama with many, many things in it. 22

Q. You didn't consider it. You don't know the 23

visual impact? 24

A. No. 25

274

CHAIRMAN VOLZ: Is that it then? All 1

right. What I would like to do now is confirm 2

that UPC still has 45 minutes for Mr. Ide. 3

MR. KASSEL: We will fit the time we 4

have, Mr. Chairman. 5

CHAIRMAN VOLZ: What I would like to do 6

is get Mr. Ide on and have you start your 7

cross and get through it. But the court 8

reporter needs a break. We are going to take 9

a 5-minute break. Come right back, and make 10

sure that you don't -- that she can get to the 11

bathroom. 12

(A recess was taken) 13

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16

17

18

19

20

21

22

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275

ROBERT IDE 1

having first been duly sworn 2

testified as follows: 3

DIRECT EXAMINATION BY MR. COTTER: 4

Q. Good afternoon, Mr. Ide. Could you please 5

state your name for the record as well as your job title? 6

A. My name is Robert Douglas Ide. I'm the 7

Director of Energy Efficiency at the Vermont Department of 8

Public Service. 9

Q. I'm going to show you a number of documents. 10

The first is entitled Prefiled Testimony of Robert Ide on 11

behalf of the Vermont Department of Public Service, July 12

28, 2006. And it is accompanied by Exhibit DPS-RI-1 which 13

is a letter dated October 19, 2005 to the Public Service 14

Board and UPC Wind, and it is from Robert Michaud, Chair 15

of the Sutton planning board. Exhibit DPS-RI-2, March 24, 16

2006 letter to the Public Service Board signed by Tim 17

Simpson, Chair of the Town of Sutton selectboard, again by 18

Robert Michaud, Chair of the Sutton planning board. 19

Exhibit DPS-RI-3 which consists of excerpt of the Sutton 20

Town Plan adopted August 23, 2005. Exhibit DPS-RI-4 which 21

consists of Vermont -- from the Northeast Vermont 22

Development Association regional plan. And exhibit 23

DPS-RI-5, which is an undated letter to Susan Hudson, 24

Clerk of the Vermont Public Service Board, from the NVDA 25

276

signed by Mark Jois, President, Board of Directors. And 1

lastly I will hand you a document entitled Prefiled 2

Surrebuttal Testimony of Robert Ide on behalf of the 3

Vermont Department of Public Service dated December 11, 4

2006. Were these documents prepared either by you or 5

under your supervision? 6

A. Yes, they were. 7

Q. And do you have any corrections that you need 8

to make to any of those documents today? 9

A. Yes, I do. On my prefiled testimony of July 10

28, 2006, pursuant to the Board order of September 27, I 11

need to strike some lines. Moving first to page number 12

11. And starting at line 15 through 19 of that page. And 13

then moving to the top of page 12, starting at line one, 14

and continuing through line five. I have crossed out with 15

ink to remove that testimony. 16

Q. Thank you. Any other changes you would need 17

to make to those documents, Mr. Ide? 18

A. No. Mr. Cotter. 19

MR. COTTER: At this time I would like 20

to move the prefiled direct and surrebuttal 21

testimony of Mr. Ide along with exhibits 22

DPS-RI-1 through 5 as previously described. 23

CHAIRMAN VOLZ: Any objection? 24

MR. KASSEL: No objection. 25

277

BOARD MEMBER BURKE: I don't have an 1

objection obviously, but I would like to ask 2

Mr. Janson although I don't know what Mr. 3

Janson is doing, a couple of those exhibits 4

may already be in evidence, are they not, and 5

do we want to make sure that we don't mark 6

those so we end up confusing them and having 7

references to two things? 8

MR. JANSON: It wouldn't be the first 9

time, I think, because in his prefiled 10

testimony he refers to some of those exhibits 11

by those numbers. Maybe we better have 12

duplicates in. 13

BOARD MEMBER BURKE: Just thought I 14

would point it out. 15

CHAIRMAN VOLZ: They are admitted. 16

(Exhibits DPS-RI 1 through 5 were 17

admitted into evidence) 18

(Prefiled testimony of Robert Ide was 19

included in the original transcript 20

only, at pages A through PP, 21

inclusive.) 22

23

24

25

278

MR. COTTER: And before we start, I 1

thought I could ask Mr. Ide one or two quick 2

questions, that may sort of help move things 3

along. 4

CHAIRMAN VOLZ: Okay. 5

MR. COTTER: This is related to the 6

Board's decision with respect to Dr. 7

Fitzhugh's testimony. 8

CHAIRMAN VOLZ: Yup. 9

BY MR. COTTER: 10

Q. Mr. Ide, could you please briefly explain the 11

Department's current position with respect to the orderly 12

development and economic benefit criteria given the 13

Board's recent decision to allow the testimony of Dr. 14

Karen Fitzhugh regarding potential impacts from the 15

proposed project to the King George School? 16

A. We believe that we will need to have the 17

opportunity to perform discovery on Dr. Fitzhugh. And to 18

witness her testimony under cross examination. And that 19

we are unable to come to a conclusion at this point in 20

time until we go through that process performance. 21

Q. Okay. And once we go through that process, 22

and after Dr. Fitzhugh has testified and been 23

cross-examined, would you then be available to provide the 24

Board with the final Department position on these criteria 25

279

presumably during the March hearing dates that the Board 1

has set aside? 2

A. Yes, I would. I would like to just say that I 3

would like the opportunity to have at least a brief pause 4

in the proceedings so that the Department could have an 5

internal conversation. 6

Q. And when you say a brief pause in the 7

proceedings, you're -- are you referring to subsequent to 8

Dr. Fitzhugh's testimony? 9

A. Yes, I am. 10

Q. So you won't have to make a snap judgment and 11

get on the stand three minutes later? 12

A. Or less. 13

Q. Okay. Thank you. 14

MR. COTTER: The witness is available 15

for cross examination. 16

CHAIRMAN VOLZ: I have a follow-up 17

question on that. I would just urge -- this 18

is the thing that needs to be worked into the 19

schedule that you folks are working on. Are 20

we going to be seeing that soon or -- do we 21

have any sense of that from anybody? 22

MR. HAND: I think we can circulate a 23

draft this evening, and hopefully have some 24

comments perhaps tomorrow on it. 25

280

CHAIRMAN VOLZ: The only thing I would 1

urge is that when you are prepared to give the 2

Department's final position, that if you could 3

reflect ANR's position in that somehow as 4

well. If you could integrate that so that we 5

know what the administration's position is as 6

a whole. Because you've got -- just leave it 7

like that. 8

BOARD MEMBER COEN: Historic sites too. 9

CHAIRMAN VOLZ: Historic sites I meant 10

to say. Historic sites, ANR, and the 11

Department of the Public Service, all the 12

agencies that represent the state. If there 13

can be some kind of unified statement. 14

MR. COTTER: Are you asking then that 15

Mr. Ide speak on behalf of other agencies 16

besides the Department? 17

CHAIRMAN VOLZ: No. Just that he be 18

aware of what their position is. And then 19

therefore, what the bottom line recommendation 20

of the state is, to approve it or not. Or 21

what conditions. 22

BOARD MEMBER COEN: I would find it 23

helpful if Mr. Ide would speak for the other 24

departments.25

281

CHAIRMAN VOLZ: He may not be able to. 1

But to the extent he can, that would be 2

useful, sure. 3

MR. COTTER: We will -- we have tried to 4

focus his testimony as well as the other 5

Department witnesses on the specific criteria 6

that we are handling in this matter. But to 7

the extent that we can get everybody's heads 8

together, we will certainly try. 9

CHAIRMAN VOLZ: That would be useful. 10

BOARD MEMBER BURKE: We acknowledge the 11

fact, Mr. Cotter that -- we understand that 12

not always do state agencies agree with each 13

other. I mean we are aware of the fact that 14

there can be discrepancies between them. We 15

understand that. 16

MR. COTTER: Thank you. 17

CHAIRMAN VOLZ: I just wanted you to 18

know I'm intending -- you asked for 45 19

minutes. I'm intending to go until 6:30, and 20

then we are going to adjourn. If you haven't 21

finished and we need to do more, we can 22

discuss that tomorrow. 23

MR. KASSEL: I can -- I believe that we 24

can finish our cross within 45 minutes and 25

282

have room to spare. 1

CHAIRMAN VOLZ: All right. 2

MR. KASSEL: Would you like me to 3

commence? 4

CHAIRMAN VOLZ: Yes. 5

MR. KASSEL: Thank you. 6

CROSS EXAMINATION BY MR. KASSEL: 7

Q. Good evening, Mr. Ide. 8

A. Good evening, Mr. Kassel. 9

Q. On the subject that we were just talking 10

about, that is the development of the Department's 11

position with respect to the King George School, you 12

stated that you would like to observe Dr. Fitzhugh's 13

testimony under cross examination before deciding whether 14

your opinion would change; correct? 15

A. Yes. 16

Q. If there is a deposition, and you attend that 17

deposition, might that suffice? 18

A. It might. But I would not want to commit to 19

that this evening. 20

Q. Understood. However, if we are able through 21

the discovery process including a live deposition, at 22

which Dr. Fitzhugh testifies, to develop your position in 23

advance of the March hearings, would you be open to 24

expressing that position in advance? 25

283

A. I think it's premature for me to reach that 1

conclusion. I'm certainly happy to work diligently so 2

that there is not a significant delay in the timing of 3

these hearings. I'm very aware of the three days that the 4

Board has put on our calendar in March, and I would see no 5

reason why we shouldn't be able to keep to that schedule. 6

Q. I assume that the reason that you would like 7

to see what evolves through discovery process and the 8

testimony of Dr. Fitzhugh, is that you would like to 9

assess the credibility and the persuasiveness of her 10

position; correct? 11

A. Yes. 12

Q. Would you be interested, in connection with 13

that, in assessing whatever evidence there may be of Dr. 14

Fitzhugh's biases one way or the other? Correct? 15

A. Well I would like to hear Dr. Fitzhugh and 16

have the ability to assess whatever potential bias myself. 17

Q. Of course. Would it also be -- would you find 18

it useful to have an understanding of the viability of the 19

King George School as an operation, even if there were no 20

wind farm, in connection with deciding whether the -- in 21

your opinion, the wind farm would cause a curtailment of 22

the school? 23

A. Mr. Kassel, I've not been party to the 24

conversations that have happened under seal. And if you 25

284

are taking me into an area where I have no knowledge, I'm 1

going to be very uncomfortable. 2

Q. I specifically am not. I'm simply asking 3

whether in your judgment as to whether the Department 4

should take the position that the wind farm may cause the 5

school to close, which might then cause an economic 6

detriment to the region, would it be useful to you to 7

understand the financial viability of the school in the 8

absence of the wind farm? 9

A. It would be helpful. 10

Q. Thank you. All right. 11

MR. KASSEL: I want to move on to cross 12

examination relating to your testimony. There 13

are a couple of chunks. One chunk, Mr. Ide 14

and Mr. Chairman, and all the parties, I would 15

propose we do not do any examination about, 16

and that relates to the issues at the end of 17

your prefiled surrebuttal testimony that 18

relate to potential Certificate of Public Good 19

conditions. Mr. Chairman, I guess this really 20

is in the interest of saving time. I would 21

propose that the parties simply brief those 22

issues, and although cross examination might 23

be relevant, I don't think it's particularly 24

useful given that it's almost 6 o'clock on 25

285

this evening. So that's the proposal I would 1

make, Mr. Chairman. 2

CHAIRMAN VOLZ: So I'm not exactly sure 3

what you're asking us to rule on. It's your 4

cross. 5

THE WITNESS: Was it a question to me? 6

MR. KASSEL: Well yes. 7

MR. HERSHENSON: We have no objection. 8

Whatever works. 9

MR. COTTER: He's proposing something 10

about not asking questions, I don't have a 11

problem with it. 12

CHAIRMAN VOLZ: I guess what I'm getting 13

at, are you asking that if you don't ask 14

questions you don't want anybody else to ask 15

questions in this area? 16

MR. KASSEL: If other parties want to 17

get into that, I will get into it. I don't 18

think it's an evidentiary issue, frankly. I 19

think they are all policy issues, and we 20

should just brief that. 21

CHAIRMAN VOLZ: Are there any objections 22

to that? We have some questions in this area. 23

MR. KASSEL: In the interest of 24

efficiency, I would propose to wait and hear 25

286

what your questions are to go after that. 1

CHAIRMAN VOLZ: That sounds good. 2

MR. KASSEL: I don't want to sand bag. 3

BY MR. KASSEL: 4

Q. With respect to the regional plan, and 5

criterion B-1 of 248, Mr. Ide, you've testified that in 6

your surrebuttal testimony, that now that the two turbines 7

have been moved out of Sutton, and given the Board's 8

ruling with respect to the Fitzhugh testimony, which I 9

understand is following a different track at this point, 10

you no longer feel that there is an undue -- that the -- 11

that the project does not comply with criterion B-1? 12

A. Are you on a specific page of my testimony, 13

Mr. Kassel? 14

Q. I'm not at the moment. I'm distinguishing 15

your surrebuttal testimony from December of '06 as opposed 16

to July. The position you took in December, was if the 17

turbines can be moved out of Sutton, and given that the 18

King George School issue at least at that point appeared 19

to be off the table, you now think the project meets B-1; 20

correct? 21

A. I think the word that I used was to eliminate 22

the two turbines in Sutton. 23

Q. Yes. The turbines have been eliminated from 24

Sutton, but two more turbines have been added to the array 25

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in Sheffield. 1

A. Yeah. That's the distinction I wanted to 2

make. That was not my recommendation. 3

Q. I understand. But given that that is the 4

current proposal, is it your position and assuming for the 5

moment that there is no evidence that the King George 6

School is going to close as a result of the wind farm, is 7

it your position that the current proposal complies with 8

B-1? 9

A. A certainly more nearly complies with B-1, and 10

it's an improvement. 11

Q. Well let me put the question more plainly. 12

Does it comply, or does it not comply with B-1? 13

A. I think that it does comply. 14

Q. Okay. You stated that the primary -- and in 15

this respect -- I am focusing on page four of your 16

surrebuttal testimony. At line 17. You stated that the 17

Department's concerns with respect to orderly development 18

were primarily based on the potential impacts that would 19

flow from the closure of the King George School. Do you 20

see that, page 4 line 17? 21

A. Yes, I do. 22

Q. So under B-1 your principal concern was with 23

respect to the potential closure of the school? 24

A. It was the principal concern. 25

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Q. You had some concern relating to consistency 1

with the regional plan; correct? 2

A. Yes. 3

Q. May I ask you, I would like to focus on that 4

portion of your concern. Even though it wasn't the 5

principal element of your concern under B-1, okay? Let me 6

ask you, first of all, if you can quantify this, how big a 7

concern was it? Was it a marginal concern, was it a tiny 8

concern? 9

A. The King George School? 10

Q. No. The compliance with the regional plan. 11

A. I want to be sure I understand that a little 12

more clearly. If you could just run me through it again, 13

please. 14

Q. Well your testimony is that you were primarily 15

concerned with respect to orderly development about the 16

potential impacts that would flow from the closure of the 17

school? 18

A. Yes, I would agree with that. 19

Q. That would imply that you were secondarily 20

concerned with respect to such issues as compliance with 21

the regional plan? 22

A. Yes. 23

Q. How close was that as a second tier concern to 24

your first tier concern? 25

289

A. The first tier concern was a significantly 1

larger concern. 2

Q. All right. So this is -- an issue of 3

compliance with the regional plan is a relatively minor 4

concern for the Department? 5

A. Well I think what's important to remember 6

about plans is that they provide a general framework, they 7

are advisory. They -- one of their three functions is to 8

provide sort of a base for Boards just such as this to 9

consider proposals. So certainly our primary concern was 10

the issue of the impact on the King George School. 11

Q. Okay. Now as a general principle, with 12

respect to the regional plan, you make the point in 13

several places in your testimony that you're asking the 14

question is the project quote consistent with the regional 15

plan, do you recall that? 16

A. Yes, I do. 17

Q. Mr. Ide, you have been a State Senator and you 18

have your current position. You were on the Board of the 19

NVDA for ten years, as I understand it? 20

A. Yes. 21

Q. Have you ever been a district commissioner? 22

A. I have never been. 23

Q. I assume you're relatively familiar with Act 24

250? 25

290

A. Somewhat. I would not profess great knowledge 1

about Act 250. 2

Q. Few would. Are you aware that there is a 3

criterion of Act 250 that requires district commissions 4

when considering projects, to determine whether the 5

project under consideration is consistent with a regional 6

plan? 7

A. You know, my knowledge of Act 250 is not 8

strong enough so that I can agree. I have no reason to 9

dispute you, Mr. Kassel, it's just I don't have that 10

personal knowledge. 11

Q. Well would you take my representation of that? 12

A. I would. 13

Q. That it's criterion 10 that requires a project 14

to be -- I beg your pardon. Stand corrected, I apologize. 15

It says in conformance with a duly adopted local or 16

regional plan, and that is criterion 10 of Act 250, will 17

you assume that with me? 18

A. Yes, I will. 19

Q. You understand that Section 248, in Section 20

248, the legislature in its wisdom, made reference to 21

certain criteria from Act 250. And directed that the 22

Public Service Board give them due consideration? 23

A. Yes. 24

Q. Correct? Are you aware that criterion 10 of 25

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Act 250 is not one of those? 1

A. I'm not aware of that. But that may speak to 2

my own knowledge and not-- I have no reason to dispute 3

that. I just don't know that. 4

Q. Would you agree with me that to the extent 5

that you are looking at a regional plan, or a local plan 6

for that matter, and determining whether a project under 7

review at the Public Service Board is in conformance with 8

those plans, you're performing an analysis that may be 9

required under Act 250, but the legislature -- but you-- 10

but that the legislature in its wisdom did not require the 11

Board to perform under Section 248; is that correct? 12

A. Yes. 13

Q. And that would in effect be giving a regional 14

plan or a local plan more weight than the legislature 15

instructed the Public Service Board to give it; correct? 16

A. Yes. 17

Q. The legislature -- the Public Service Board in 18

its wisdom might do that anyway, might decide as a matter 19

of discretion that it wants to consider whether a project 20

is in conformance with the plan; correct? 21

A. Yes. 22

Q. Has the Department of Public Service reached a 23

policy position, is your testimony -- does your testimony 24

reflect a policy position by the Department, to advocate 25

292

that projects before the Public Service Board should be 1

considered for their conformance with regional and local 2

plans, even if that's not required by Section 248? 3

A. No. That is not true. 4

Q. Okay. Is it true that you look at regional 5

plans and local plans in general to see if there is any 6

strong evidence there that would inform your opinion under 7

B-1? 8

A. Yes. 9

Q. Okay. Now the regional plan that you looked 10

at, a portion of which is attached to your testimony, as 11

RPS-RI-4, was enacted in mid stream in this proceeding, 12

was it not? 13

A. Yes. 14

Q. In the sense that its effective date was after 15

the filing of the petition in this case? 16

A. Yes. 17

Q. You decided to look at it anyway, why? 18

A. I'm actually very glad you asked that 19

question. 20

Q. That's why I asked it, to make you glad, Mr. 21

Ide. 22

A. We are happy boys. This is a regional plan 23

that was adopted after the filing of the project. And the 24

Department recognizes that. We understand that this 25

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undoubtedly is something that the lawyers will argue as a 1

point of law. I felt, and the Department felt, that it 2

was prudent upon us to avail ourself of all the current 3

information that was available, and to not to do that 4

would be a dereliction of our duties. 5

Q. I appreciate that. The portion of the plan 6

that you have attached in detail is -- well, you have 7

included the entire energy portion, have you not? 8

A. Yes, I have. 9

Q. And segments of other portions of the plan? 10

A. Yes. 11

Q. And the segments of the other portions of the 12

plan are, wouldn't you agree, true to the -- true to form, 13

general guidance type statements; correct? 14

A. Yes. They are. They reflect the, you know, 15

some of the heritage of the area. Some of the goals, some 16

of the attributes of the area, and I feel that they are 17

proper background information to be submitted with this 18

exhibit. 19

Q. And is the level of focus, if you will, of 20

those statements, on the -- and what I mean by that, is as 21

on the spectrum from specific to general, roughly 22

consistent with what previous NVDA plans have been for the 23

last 10 years or so? 24

A. Yes, I would describe them as quite 25

294

consistent. 1

Q. The energy section seems to be more specific. 2

Wouldn't you agree? 3

A. Yes, I would. Than prior plans if that was 4

the continuation of your question. 5

Q. Well both in prior plans and in relation to 6

other portions of this plan, isn't that correct? 7

A. I would agree with that. 8

Q. Did you -- did that surprise you? 9

A. No. It did not surprise me. 10

Q. And there is a -- in the energy section I 11

think there is some testimony elsewhere in the record, was 12

prepared actually separately or was -- went through an 13

adoption process separately from the rest of the plan; is 14

that right? 15

A. I think that is what ultimately happened. I 16

don't think that was the intent when the formulation of 17

the plan started. 18

Q. I think you're right. And one of the reasons 19

was that this project, and maybe other wind farm projects, 20

caused the energy portion to be dealt with separately by 21

the NVDA; is that right? 22

A. I would characterize it that this portion 23

generated the most public comment, and the most discussion 24

of the plan. It was expected by the writers and the 25

295

administration of NVDA that this plan would be adopted 1

sooner than it was. And that they made a conscious 2

decision as managers of NVDA to get the rest of the plan, 3

which seemed to provoke very, very little, if any, public 4

comment adopted, and then to focus on this section, which 5

actually went through a change. 6

Q. From the draft that had been proposed; 7

correct? 8

A. Yes. 9

Q. It must have been remarkable to see so many 10

people come to a hearing on a regional plan, wouldn't you 11

agree, having been a Board member of the NVDA for all 12

those years? 13

A. It is always stimulating when public hearings 14

garner lots of public participation. And certainly 15

regional plans and town plans frequently are looking for 16

more participants in that conversation. As a resident of 17

the Northeast Kingdom, I will tell you that this 18

particular subject provokes a lot of high energy level 19

among people, so I can't say that I was surprised by the 20

number of peoples that participated in this process on 21

this subject. 22

Q. By this subject you mean wind farms? 23

A. Yes, I do. 24

Q. Would you agree that, in general, that the 25

296

Northeast Kingdom is not known for a strong interest in 1

planning as compared to other portions of the state? 2

A. You know, I'm not in a position to make that 3

comparison to other portions of the state. As a Board 4

member of NVDA and, you know, a point that's not listed in 5

my resume is that my first political appointment was to 6

the St. Johnsbury Planning Commission. I think that -- 7

well let me just back up a little bit in my answer. 8

The Northeast Kingdom is three counties, and 9

each of those counties has some similarities and some 10

differences. And within those counties there are towns 11

that have similarities and differences, and so to say that 12

the region is less predisposed to planning than other 13

regions, I think might be going too far because there are 14

some towns in the Northeast Kingdom that are very, very 15

diligent about their planning process, and are ahead of 16

the curve on that. 17

But it's kind of a classic shepherd and cats 18

sort of script, because when you're talking about more 19

than 30 towns over the vast geography of the Northeast 20

Kingdom with relatively limited populations, and, you 21

know, different feelings towards property rights, towards 22

governmental involvement, independence and loyalties, it 23

doesn't surprise me that there are some towns that have 24

been less diligent in the planning process than other 25

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towns within that I would call this rather large region. 1

Q. I understand. Let me be clear. I didn't mean 2

that comment as a criticism at all. Simply as an 3

observation that there are many towns in the Northeast 4

Kingdom without plans, and I assume you would agree with 5

me, and apparently others that are very interested in 6

planning? 7

A. I would agree with that. 8

Q. Do you know if the -- I'll withdraw that 9

question. Turning to the energy strategy, chapter 2, I 10

believe it is, of the regional plan which begins on page 11

20 of your DPS-RI-4. This is the energy strategy; 12

correct? I'm sorry. This is the energy section of the 13

plan, is it not? 14

A. Yes, it is. 15

Q. Would you turn -- it's noted on page 28 that 16

the Northeast Kingdom is an importer of electricity. The 17

very first piece of text on page 28. Do you see that? 18

A. I do see that. 19

Q. Does that seem accurate to you? 20

A. I'm not sure how the baseline mathematics was 21

done to determine the energy that is already produced in 22

the Northeast Kingdom, particularly in relationship to a 23

partial credit of generation that might come from the 24

Connecticut River dams. And absent that mathematical 25

298

background, I've never been sure this statement was as 1

correct as it should be. 2

Q. Do you have any -- would you agree with me 3

that this section of the plan which describes energy usage 4

and production in the Northeast Kingdom is fairly 5

comprehensive? 6

A. Yes, I would. 7

Q. And it relies upon such unimpeachable sources 8

of data as the Vermont Department of Public Service? 9

A. I would agree that's an unimpeachable source 10

of data. 11

BOARD MEMBER COEN: I object. 12

BOARD MEMBER BURKE: Sustained. 13

BY MR. KASSEL: 14

Q. On page 30 at the beginning of the last 15

paragraph on the page, there is a statement from the 16

economic and population projections, we can expect the 17

future growth in energy demand for the Northeast Kingdom 18

to be between 1.2 to 1.5 percent per year for the next 19

five years. Do you have any reason to doubt the accuracy 20

of that statement? 21

A. I don't have any reason to doubt the accuracy 22

of that statement. 23

Q. Now turning to -- back to page 26. Which 24

shows the NVDA region and the electric utilities. That 25

299

survey. 1

A. Yes. 2

Q. Let me ask you. Is that what that map shows? 3

A. Yes. This is what this map shows. 4

Q. You understand that there are 33 utilities 5

that have now committed to taking the entire production of 6

this project; correct? 7

A. Yes, I have been made aware of that. 8

Q. Vermont Electric Co-op, CVPS, and Washington 9

Electric Co-op? 10

A. Yes. 11

Q. And do you have any reason to believe that the 12

service territories that are indicated on this map are 13

inaccurate? 14

A. No. I have no reason to believe that. 15

Q. So those three utility companies seem to serve 16

a large portion, the majority portion overall, of the NVDA 17

region; is that right? 18

A. Yes, that is true. 19

Q. With respect to turning to page 39 of the 20

plan, of your exhibit DPS-RI-4. 21

A. Yes, I'm on that page. 22

Q. This is the place where the -- there is some 23

specific mention of what -- of the plan's position with 24

regard to commercial scale wind generation; correct? 25

300

A. Yes. It is the section on wind. 1

Q. And there are five indented paragraphs that 2

are recommendations or requests from the NVDA to the 3

Public Service Board that are also reflected in your 4

testimony; is that right? 5

A. Yes. 6

Q. Number one is the consistency of the proposal 7

with not only the region's plan and the host town's plan 8

and zoning bylaws, but also the plans and bylaws of other 9

towns which may be impacted by the proposed project. Have 10

you given much thought to the implications of that request 11

from this -- from the plan to this Board? 12

A. I have given that some thought. 13

Q. Do you think that's wise? 14

A. I think that it -- knowing the character of 15

the Northeast Kingdom, and the feeling of independence by 16

so many of the people, and their own loyalty to their own 17

towns, I can see where this clause has the potential to 18

generate conflict that may be hard to mediate. 19

Q. From town to town? 20

A. Yes. 21

Q. Might that be the case, and I don't want to 22

start a conflict here that need not be started, but 23

between Sutton and Sheffield with respect to this project? 24

A. I don't think you would be starting that 25

301

conflict. I think that these are two towns that have some 1

difficult divisions within themselves right now. Both 2

within their own towns and also between towns. 3

Q. And there are conflicts like that between 4

regions as well, might there not be, there may not be 5

specific ones I'm referring to, but that can occur, right? 6

A. Yes, it can occur. 7

Q. Isn't that one of the reasons why the 8

legislators in their wisdom, give jurisdiction to a body 9

like the Public Service Board, that takes a statewide 10

perspective on issues like this? 11

A. I do agree with that statement. And I think 12

that that is one of the charges and the challenges to this 13

Board, in matters such as this. Is to take, to analyze, 14

to assess all the information possible, and to best 15

satisfy themselves at reaching a learned decision. 16

Q. And that would include, I assume you would 17

agree, some consideration of the views of not only 18

individuals but also towns in the host community and in 19

surrounding communities? 20

A. Views, travel across town lines, there is no 21

denying that. 22

Q. But the buck stops here? 23

A. The buck does stop here. 24

Q. Looking at criterion two, NVDA is requesting 25

302

the Board to weigh the potential benefits as well as 1

negative impacts on not only host -- the host town but 2

other impacted towns, including a possible outline of tax 3

payment benefits to impacted towns. Have you given any 4

thought to what an outline of tax payment benefits to 5

impacted towns might be? 6

A. The brief thought that I've given to that, Mr. 7

Kassel, leads me to believe that it probably is an 8

impossible mathematical assignment. 9

Q. You're the former chair of the Senate finance 10

committee, were you not? 11

A. No. On two accounts I'm going to disagree 12

with you. I was the vice chair of the appropriations 13

committee. 14

Q. I was close. 15

A. Right end of the hall. 16

Q. It's not that far away. Only about 30 feet; 17

right? 18

A. Sometimes it's chasms away. 19

Q. Fair enough. You have a good deal of 20

experience with issues relating to the state's finances, 21

do you not? 22

A. I believe I do. 23

Q. Do you believe the Board has the authority to 24

develop a tax payment benefit sharing? 25

303

MR. COTTER: I'm going to object. I 1

think this calls for a legal conclusion. 2

CHAIRMAN VOLZ: If he can answer it in 3

his capacity as a state Senator with the 4

experience he has there. We know he's not a 5

lawyer. 6

MR. COTTER: Understanding I think that 7

he's not giving a legal position on behalf of 8

the Department, that's fine. 9

CHAIRMAN VOLZ: His understanding when 10

he was operating as a Senator. 11

THE WITNESS: Could I ask to have the 12

question read back? 13

BY MR. KASSEL: 14

Q. Let me rephrase it. Given your experience in 15

that east wing of the state house that we just described, 16

just determined you used to sit in, do you feel that the 17

Board can feasibly within the scope of its authority, 18

develop an outline of tax payment benefits to impacted 19

towns that might share tax payments? 20

A. You have to remember that my experience was as 21

a Northeast Kingdom legislator. And my answer would 22

reflect my background. And I don't know that they are 23

prohibited from doing that. 24

Q. The legislature? 25

304

A. The Board. 1

Q. Oh, the Board. You would agree it would be 2

controversial, would you not? 3

A. It probably would provoke some conversation. 4

I'm not sure how controversial it would become. But it 5

has the potential to become controversial for certain. 6

Q. It might be a very good idea; correct? 7

A. It could be a good idea. You know, the 8

reality of generation sources and transmission corridors 9

is that they serve a larger benefit than just those 10

communities. 11

Q. But you would agree we don't have a system in 12

place now that does that? 13

A. I would agree. Other than -- I would say 14

this. One could make an argument that the statewide 15

property tax for educational purposes might potentially 16

have the effect of spreading some of that wealth from 17

community to community. But certainly not on the 18

municipal side of the budget. 19

Q. And could be considered as an analogy, or a 20

model, would you -- 21

BOARD MEMBER COEN: Or certainly could 22

be compared to how popular opinion is. 23

THE WITNESS: I'm not sure I want to be 24

led in that direction. 25

305

MR. KASSEL: I think I'll stop right 1

there on that line of questioning. 2

BOARD MEMBER BURKE: That hasn't been 3

controversial or anything, right? 4

BY MR. KASSEL: 5

Q. Mr. Ide, are you planning to run for anything 6

else again, sir? 7

A. If I could respond to Commissioner Burke's 8

question, as a person who was in the legislature at the 9

time of Act 60, I would just answer your question as yes. 10

Q. Looking at the text that exists below the five 11

enumerated items on the page that we were looking at, page 12

39 of DPS-RI-4? 13

A. Yes. 14

Q. The -- this appears to deal with or address 15

one of the issues you raised, the different towns -- 16

differing towns may take positions on wind energy 17

facilities, which may be at significant variance with each 18

other. 19

A. I'm sorry. I had jumped to the bottom of the 20

page net metering. 21

Q. So it's the text just above the word biomass? 22

A. Yes, I found it now. 23

Q. And the plan here seems to recognize that 24

towns might take differing positions with respect to wind 25

306

farms; correct? 1

A. Yes, it does. 2

Q. I'm curious about the second sentence, town 3

plans will be deemed compatible with this regional plan 4

and with other town plans so long as the town plans 5

demonstrate that wind energy was taken into consideration 6

in the development of the town's energy component. Do you 7

see that text? 8

A. I do see that text. 9

Q. Might that mean -- well let me put it this 10

way. Would you agree with me that might mean that town A, 11

if it considers wind farms in its town planning, and 12

decides that it wants wind farms, that the project that is 13

located in town A would then be deemed compatible with the 14

regional plan? 15

A. You know I've read this statement a number of 16

times, Mr. Kassel, trying to get my own mind around 17

exactly what the writer thought they were expressing. And 18

I think that that could easily be the writer's 19

interpretation, but I don't know that because I was not 20

the author. 21

Q. Well you were on the board of the NVDA for 10 22

years; correct? 23

A. I was on the board of the NVDA for 10 years. 24

I was not on the board when this plan was adopted, so I 25

307

was not part of that process. 1

Q. I understand. But you are familiar with 2

regional plan language in general? 3

A. Yes, I am. 4

Q. My interpretation, would you agree, is -- 5

makes some sense given the purpose of a regional plan 6

which is to encourage towns to plan; correct? 7

A. I need to have you phrase that a little 8

differently, because I think you asked me if -- I think if 9

it were read back you asked me about your interpretation. 10

Q. I asked if my interpretation was correct in 11

your view. 12

A. Okay. 13

Q. It's 6:15. 14

A. I'm being careful. 15

Q. Doesn't it make some sense the interpretation 16

that I just advanced of this sentence, in the sense that 17

the point of a regional plan is to get towns to plan, to 18

consider the issues that they have identified, energy is 19

clearly an issue, and they are saying if town A considers 20

energy and wants a wind farm, and they have gone through a 21

rational process, then we will respect that, and their 22

Town Plan will be consistent with ours. Whereas 23

neighboring town B, might consider energy issues and wind 24

farms -- and say no to wind farms, and we will respect 25

308

that too. And town B's plan will be consistent with this 1

regional plan? 2

A. What I would say, Mr. Kassel, is that I think 3

that that is exactly what this regional plan is implying. 4

That each town will go through an exhaustive usually 5

planning process. That they will have public hearings and 6

solicit input from their residents, that the Planning 7

Commission that works on the plan will advance one that is 8

ultimately adopted by the selectboard. So that you do 9

have town plans that could stand side-by-side and be in 10

conflict but still conform to the regional plan. 11

Q. So that the landscape that might evolve after 12

those plans have been put in place, might well include a 13

wind farm in town A, as I supposed it, that has a plan 14

that is in favor of wind farms, and that landscape would 15

be consistent with this regional plan, would it not? 16

A. I think that what you're saying, or the part 17

that I would agree to, if this is what you're saying, is 18

that town A might adopt a Town Plan that has language that 19

is favorable to hosting a wind farm, and town B, a 20

neighboring town, might have language that's quite the 21

contrary to that. 22

Q. That's correct. And that the supposition or 23

my -- my premise or my point is if that were the case, and 24

a wind farm were permitted and developed in town A, that 25

309

situation would be consistent in the view of this regional 1

plan with this regional plan and with the local plans; 2

correct? 3

A. I believe that would be true. When you have 4

those neighboring town plans. And I think also within the 5

statement is almost an admission that this is -- this has 6

the potential to be an area of conflict within a region. 7

Q. Understood. But would you not also agree that 8

this statement helps us view this plan as flexible enough 9

to incorporate a wind farm in the region? 10

A. I think that, yeah. You certainly could make 11

that interpretation. Which is the nature of plans, that 12

there is guidance and there is flexibility. 13

Q. Turning just briefly to the -- to page 40. Of 14

DPS-RI-4. The strategy section. Would you agree that 15

there is some remarkably specific strategies listed here? 16

A. Yes, I would. 17

Q. Which -- some of which, of course, have -- 18

have all to do with actions to be taken and supervised and 19

decided upon by entities far beyond the regional plan -- 20

far beyond the NVDA; correct? 21

A. Yes. 22

Q. Such as renegotiating energy contracts with 23

Hydro-Quebec and Yankee. Would you agree that's -- I 24

withdraw that question. That's not worth the time. 25

310

The third bullet I must say, I have to ask you 1

about. A strategy that's proposed is to promote the 2

upgrade of regional transmission systems, to reduce 3

gateway constraints. Do you think the NVDA knows what 4

they are in for if they want that strategy to be 5

implemented? 6

A. I don't know that I'm qualified to answer that 7

question. 8

Q. Do you think that might mean more robust 9

transmission into the northeast and around the Northeast 10

Kingdom? 11

A. Well I want to draw to your attention that the 12

most recent significantly long new power line corridor is 13

located in the Northeast Kingdom, and it's the DC line 14

that travels from Norton to the Moore station in 15

Littleton, New Hampshire. And my sense is that there may 16

have been individuals within the Northeast Kingdom were 17

thinking about that corridor and whether there might be at 18

a future time, a proposal to expand that corridor. 19

There also, you know, with the 20

interconnections within the Northeast Kingdom, there are 21

some spots of weakness, and I think very reasonably this 22

plan could have been pointed towards those spots. 23

Q. Such as perhaps the northern loop project? 24

A. The northern loop project certainly comes to 25

311

mind. You know, there are other potential development 1

issues happening within the Northeast Kingdom that could 2

expand the need for transmission of electricity. And we 3

also have a new renewable energy generating source at 4

Coventry that may expand which, you know, there was a 5

significant line improvement that went with that project 6

as well. 7

Q. So would you take this strategy as an 8

indication that the plan actually is endorsing 9

improvements to the energy infrastructure within the 10

Northeast Kingdom, that would, in fact, make it more 11

robust and perhaps promote or facilitate further 12

development? 13

A. Yes. 14

Q. In fact, the NVDA is the Northeastern Vermont 15

Development Association, is it not? 16

A. Yeah. Actually Mr. Kassel, it is the only 17

joint regional planning and regional development 18

corporation in the state. 19

Q. Which I believe is viewed by many, would you 20

not agree, as a tremendous plus, in that development 21

concerns and planning concerns are joined in one agency, 22

isn't that correct? 23

A. I believe it is a plus. There is a historic 24

story that you should be aware of and that was -- 25

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Q. As long as it doesn't cut into my time. 1

A. There are some -- few volunteers in the 2

Northeast Kingdom. The leaders thought if we could get 3

them together once, let's do it all together. 4

Q. Hail to that. Would you agree with me that in 5

this rather specific list of strategies that begins on 6

page 40 and carries over to page 41, there is no mention 7

whatsoever of commercial scale wind. 8

A. I would agree that there is no mention of 9

commercial scale wind. 10

Q. And does it make sense to you that the 11

regional plan really deals with that separately, in the 12

language that we were talking about 10 minutes ago on page 13

39? 14

A. No. I don't necessarily reach that 15

conclusion. I think what the conclusion I reach from 16

reading these strategies is that the plan endorses concept 17

that the framers of the plan believe are strategies that 18

answer the long-term electrical energy needs of the 19

region. 20

Q. And that's the strategy list? 21

A. Strategies list, and its silence on wind was a 22

strategic decision. 23

Q. Strategic in what sense? 24

A. That the region does not view commercial wind 25

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as a significant component to the strategies that would 1

lead to the electrical system in the region. 2

Q. I see. But the plan clearly envisions the 3

towns might choose to host a wind farm or not host a wind 4

farm, and that would be consistent with the regional plan? 5

A. Well one of the problems with regional plans 6

is frequently they are inconsistent in their own drafting. 7

This, I would admit to you, seems to be an inconsistency. 8

When I read the plan, though, and I read the strategies, 9

it seems to me that a stronger statement in the regional 10

plan which, of course, is just the guidance document, is 11

-- to me it's very significant that there is an absence of 12

mention of commercial wind as a strategy. 13

Q. Would it strike you as significant that there 14

is such a large segment dealing with planning for wind? 15

A. No. Because I think, you know, the segment 16

about planning is to encourage those local towns to reach 17

their individual decisions in a deliberative process. 18

Q. So that the plan in aggregate, the plan's 19

position with respect to wind, is we are really not going 20

to take a specific position, but we are going to encourage 21

towns to consider and plan for it? 22

A. I'm not sure that I completely agree with 23

that. I think the prevailing feeling after the long 24

deliberative process that NVDA went through, led to a 25

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more-- you know, it is not openly negative towards wind, 1

but the fact that during the process verbiage that was 2

positive towards wind was removed, at least in my way of 3

looking at the process, that the residents of the 4

Northeast Kingdom went through, is they moved from a draft 5

proposal that related to a positive mention to wind, to 6

being silent on wind. 7

It may be is significant that they didn't go 8

all the way to being negative towards wind, but I think 9

the fact that they made that choice after a very 10

exhaustive deliberative process has relevance. 11

Q. Let me try this. Is it possible that they 12

went from taking a substantive position on wind, to taking 13

a procedural position on wind? Which is to say we are not 14

going to say wind is good or bad, but we are going to say 15

that it's the Public Service Board that decides, and we 16

would like them to consider these things, and it's also 17

important for towns to plan? 18

A. I'm not sure that I am comfortable going as 19

far as you want me to go with that statement, Mr. Kassel. 20

Q. I want to switch briefly, and then we will 21

finish up on this. To your position with respect to power 22

sales. 23

A. Can you give me a reference where you are, or 24

general enough? 25

315

Q. I'm going to do without. It's general enough. 1

You've taken the position in a couple of places that you 2

believe it's important for there to be a substantial 3

amount of the production from a wind farm to be sold in 4

state at beneficial rates? 5

A. Yes. 6

Q. Correct? That's the Department's position 7

with respect to public benefits; correct? 8

A. It is certainly one of the public benefits 9

that we see of hosting a merchant generation project. 10

Q. And at the time of your December 11 testimony, 11

as I recall, you were aware that Washington Electric Co-op 12

was buying a certain amount of power, and there had been 13

discussions with Vermont Electric Co-op and CVPS; correct? 14

A. What was the date? December 11? The 15

surrebuttal? 16

Q. Yes, the surrebuttal. 17

A. Yes, we were aware at that time that CVPS had 18

come into the conversation. 19

Q. You were in the room, I believe, last Monday 20

when Steve Vavrik, a UPC witness testified to the current 21

state of negotiations and commitments among -- between UPC 22

and those three entities; correct? 23

A. Yes. I was in the room and I did hear that 24

testimony. 25

316

Q. Does that testimony change or does that 1

testimony bolster your position here? 2

A. The testimony about the percentage of output 3

of this project being sold to those three utilities does 4

help to alleviate our concerns about that issue. 5

Q. If a hundred percent of the power from this 6

project is being sold to those three utilities, isn't 7

that-- short of having a long-term fixed contract which we 8

know the Department would like, isn't that about as good 9

as it gets? 10

A. Well I did want to put in a comment and go 11

right into the long-term contract. Now you've given me 12

that opportunity. 13

Q. Can you answer the first part? 14

A. A hundred percent is wonderful. 15

Q. The Department would like long-term fixed 16

contracts, right? 17

A. We would, at a mutually agreed to price. And, 18

you know, when you talk about pricing and supply and 19

demand, obviously the two parties have not agreed on the 20

selling price that is satisfactory to both, and you know, 21

we would like to see the parties go back to the table to 22

push for a fixed price contract at a lower rate to provide 23

stability and pricing layers to those individual 24

utilities. 25

317

Q. You can understand that these are bilateral 1

negotiations between two entities; correct? 2

A. I can. 3

Q. And that, as I understand it, utilities are 4

negotiating with an eye toward rate regulation oversight 5

of their decisions in rate cases by the Public Service 6

Board at a future time? 7

A. I can appreciate that. The issue that the 8

Department wants to get squarely on the table though, is 9

that contracts that are pegged to a market price continues 10

to have pricing volatility that currently in New England 11

is pegged to the natural gas market. And it's that 12

uncertainty that we would like to have renewable projects 13

address. 14

Q. If renewable -- if a wind farm were built by a 15

public entity, you can resolve that problem pretty easily; 16

correct? 17

A. It's a wonderful hypothetical. 18

Q. It is sadly a hypothetical, is it not? 19

A. Try it again. If a wind farm were built by a 20

-- 21

Q. By an entity that was controlled by ratepayers 22

directly. You wouldn't have that problem; correct? 23

A. No, you would not, because then it would 24

become under the rate regulation of the Public Service 25

318

Board. 1

Q. Speaking as a person who spent all those years 2

sitting in the chair over there in the east wing of the 3

state house, do you think that's feasible in Vermont, are 4

we going to see that? 5

A. You know, if there is one thing you can say 6

about a society, is that it is constantly fluid. And you 7

know there are ebbs and flows. And just when you think 8

something is impossible, it starts to become possible 9

again. 10

Going back to the days that I was sitting in 11

the chairs across the road, any conversation about nuclear 12

power was always viewed as, you know, in sort of a 13

negative terms, and now today we find this country having 14

sort of a change of attitude about that particular 15

generation source. So I never say never. 16

Q. In fact, we have found that winter steam 17

plumes actually are reminiscent of historic plumes in the 18

Connecticut River valley; right? 19

BOARD MEMBER COEN: It's getting late, 20

Mr. Kassel. 21

MR. KASSEL: Excuse me just a minute, 22

Mr. Chair. 23

(Pause) 24

MR. KASSEL: I have no further 25

319

questions. 1

BOARD MEMBER BURKE: I hate to do this, 2

but I do have one thing that it may not 3

disturb me, but I do want to ask you. You at 4

one point mentioned some towns have adopted 5

town plans, others not, and you made the 6

statement that there were several that were 7

ahead of the curve in the Northeast Kingdom. 8

Was the implication that towns that haven't 9

adopted town plans are necessarily behind the 10

curve? 11

THE WITNESS: No. The implication is 12

towns without town plans make it more 13

difficult when we come to a deliberative 14

process such as this. Because one is left not 15

knowing if the town couldn't coalesce around a 16

plan, or did they just lack the energy to do 17

it. 18

So I think it leaves a void for people 19

in our position and people in your position to 20

really understand what is happening in that 21

town so that there is not a Town Plan in 22

place. 23

BOARD MEMBER BURKE: But you're aware of 24

towns like Wells and Benson, one of whom I 25

320

used to represent, I won't tell you which one, 1

put thousands of hours determining whether or 2

not they want a town plan and what the town 3

plan ought to be; correct? 4

THE WITNESS: Yes. 5

BOARD MEMBER BURKE: They have chosen to 6

say my land is my fiefdom, this is my castle, 7

and if I want to dig a moat, I'm going to, and 8

they choose not to. 9

THE WITNESS: I'm aware of those towns. 10

BOARD MEMBER BURKE: It doesn't 11

necessarily put them behind the curve. It's a 12

different mindset. 13

THE WITNESS: No. I want to apologize 14

to those people. It's not my intention to 15

offend them. 16

CHAIRMAN VOLZ: We will start at 9:30 17

with continued cross examination of Mr. Ide. 18

We will all have a chance up here to ask 19

questions as well, and don't forget to come at 20

9 to meet with the staff. And we will see you 21

at 9:30. Thank you. 22

(Whereupon the proceedings were 23

adjourned at 6:30 p.m.) 24

.cp 2525

321

C E R T I F I C A T E 1

2

I, Kim U. Sears, do hereby certify that I 3

reported by stenographic means the technical hearing re: 4

Docket No. 7156 at the Hearing Room of the Public Service 5

Board, Third Floor, Chittenden Bank Building, 112 State 6

Street, Montpelier, Vermont, on February 8, 2007, 7

beginning at 9:30 a.m. 8

I further certify that the foregoing 9

testimony was taken by me stenographically and thereafter 10

reduced to typewriting and the foregoing 320 pages are a 11

transcript of the stenograph notes taken by me of the 12

evidence and the proceedings, to the best of my ability. 13

I further certify that I am not related to 14

any of the parties thereto or their Counsel, and I am in 15

no way interested in the outcome of said cause. 16

Dated at Burlington, Vermont, this 11th day 17

of February 2007. 18

19

____________________ 20

Kim U. Sears, RPR 21

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