WEBVTT
1
00:00:00.000 --> 00:00:03.030
SJC 13622.
2
00:00:03.030 --> 00:00:06.873
Jacqueline Johnson versus Energy Facilities Siting Board.
3
00:00:51.066 --> 00:00:53.375
Hi, is it Attorney Senie?
4
00:00:53.375 --> 00:00:54.542
Yes.
Okay.
5
00:00:58.050 --> 00:00:59.100
May it please the court.
6
00:00:59.100 --> 00:01:00.750
My name is Christopher Senie.
7
00:01:00.750 --> 00:01:03.330
I represent the appellant in this matter,
8
00:01:03.330 --> 00:01:06.150
Jacqueline Johnson, who owns property near the site
9
00:01:06.150 --> 00:01:08.880
where a substation is proposed.
10
00:01:08.880 --> 00:01:11.490
Ms. Johnson is in the courtroom today.
11
00:01:11.490 --> 00:01:13.215
As you know, this is a matter
12
00:01:13.215 --> 00:01:16.320
that comes up from the Energy Facility Siting Board appeals
13
00:01:16.320 --> 00:01:18.690
from that board come directly here.
14
00:01:18.690 --> 00:01:22.440
At the heart of this issue is a sound study,
15
00:01:22.440 --> 00:01:25.200
which is somewhat typical in EFSB decisions.
16
00:01:25.200 --> 00:01:27.690
In fact, there are two sound studies in the record.
17
00:01:27.690 --> 00:01:29.190
And that's because the engineers
18
00:01:29.190 --> 00:01:33.330
who prepared the sound study in the case at bar
19
00:01:33.330 --> 00:01:36.720
relied on one that they had done four years earlier
20
00:01:36.720 --> 00:01:39.390
for another substation to be built in Barnstable
21
00:01:39.390 --> 00:01:42.570
to take electricity from the offshore wind turbines.
22
00:01:42.570 --> 00:01:46.200
And it is the difference between these two sound studies
23
00:01:46.200 --> 00:01:48.060
that caused me to take this case.
24
00:01:48.060 --> 00:01:52.140
And the basic difference is that a guide was used.
25
00:01:52.140 --> 00:01:56.700
The EEI guide, Edison Electrical Institute guide,
26
00:01:56.700 --> 00:01:57.900
which is a reference guide.
27
00:01:57.900 --> 00:01:59.730
It's 40 years old today.
28
00:01:59.730 --> 00:02:02.730
It was 38 years old when it was used in this matter.
29
00:02:02.730 --> 00:02:07.500
And that's not the gold standard for sound studies.
30
00:02:07.500 --> 00:02:12.210
Typically, we want to have sound power data entered
31
00:02:12.210 --> 00:02:14.130
into a model that is
32
00:02:14.130 --> 00:02:16.680
confirmed by the manufacturers of the equipment
33
00:02:16.680 --> 00:02:18.360
that will generate the sound.
34
00:02:18.360 --> 00:02:23.340
And in 2019, the board accepted the EEI noise guide
35
00:02:23.340 --> 00:02:27.180
as the starting point for an acoustical model
36
00:02:27.180 --> 00:02:30.660
and approved that project and no one appealed it.
37
00:02:30.660 --> 00:02:35.190
The same engineering firm used the same guide in this case,
38
00:02:35.190 --> 00:02:39.150
but then made further reductions from the sound powers
39
00:02:39.150 --> 00:02:44.020
that one would arrive at by using the formulas in the guide
40
00:02:45.150 --> 00:02:48.750
in order to make the model show compliance
41
00:02:48.750 --> 00:02:51.600
with the DEP noise policy.
42
00:02:51.600 --> 00:02:54.720
And when I saw that, I thought something was wrong
43
00:02:54.720 --> 00:02:56.160
with this sound study
44
00:02:56.160 --> 00:02:59.130
because just like getting ambient readings
45
00:02:59.130 --> 00:03:01.560
on the back end of an analysis,
46
00:03:01.560 --> 00:03:06.450
which you are comparing this, the projected sounds to,
47
00:03:06.450 --> 00:03:10.200
to see if this new facility will increase the ambient
48
00:03:10.200 --> 00:03:11.824
by 10 decibels or more.
49
00:03:11.824 --> 00:03:15.089
You need reliable information on the front end,
50
00:03:15.089 --> 00:03:17.130
which would be the sound power levels
51
00:03:17.130 --> 00:03:19.320
that get entered into the model.
52
00:03:19.320 --> 00:03:22.290
There are 34 pieces of equipment
53
00:03:22.290 --> 00:03:25.110
that will go into this substation that generate noise.
54
00:03:25.110 --> 00:03:27.300
They are covered in two tables.
55
00:03:27.300 --> 00:03:30.720
And actually these further adjustments in sound power,
56
00:03:30.720 --> 00:03:32.220
which the Siting Board called,
57
00:03:36.180 --> 00:03:41.040
subjective noise reduction adjustments apply to 28 of them.
58
00:03:41.040 --> 00:03:42.029
So 82-
59
00:03:42.029 --> 00:03:44.310
Can I focus, I'd like to focus on something
60
00:03:44.310 --> 00:03:46.380
that I want to hear your response
61
00:03:46.380 --> 00:03:48.600
'cause my questions are gonna really be directed
62
00:03:48.600 --> 00:03:50.580
at your opponents for the most part.
63
00:03:50.580 --> 00:03:53.310
You're getting into a technical level of
64
00:03:53.310 --> 00:03:55.650
sort of process that I understand,
65
00:03:55.650 --> 00:04:00.650
but what I'm focused on in particular is findings 42.
66
00:04:04.350 --> 00:04:06.480
And, really, 42.
67
00:04:06.480 --> 00:04:09.900
I guess actually maybe it's 41, 42.
68
00:04:09.900 --> 00:04:10.860
The sudden word states
69
00:04:10.860 --> 00:04:13.650
that it shares Ms. Johnson's skepticism
70
00:04:13.650 --> 00:04:16.200
regarding the company's self-described
71
00:04:16.200 --> 00:04:18.180
aggressive assumptions.
72
00:04:18.180 --> 00:04:20.340
While the Siting Board does not prescribe
73
00:04:20.340 --> 00:04:21.960
specific types of evidence,
74
00:04:21.960 --> 00:04:23.520
we do ensure the results of
75
00:04:23.520 --> 00:04:25.620
such modeling are reasonable, enforceable.
76
00:04:26.970 --> 00:04:28.670
The language I'm focused on is this,
77
00:04:28.670 --> 00:04:30.457
the Siting Board stated,
78
00:04:30.457 --> 00:04:34.440
"While there is reason to be skeptical of such adjustments,
79
00:04:34.440 --> 00:04:37.800
the company may in fact be able to secure equipment
80
00:04:37.800 --> 00:04:39.990
that meets these specifications
81
00:04:39.990 --> 00:04:43.890
and achieves the modeled noise levels at nearby receptor."
82
00:04:43.890 --> 00:04:46.143
That is an odd formulation to me.
83
00:04:49.410 --> 00:04:51.180
I guess the first question is,
84
00:04:51.180 --> 00:04:54.693
if 10 dB is the maximum.
85
00:04:56.580 --> 00:04:58.770
I understand if they wrote the following,
86
00:04:58.770 --> 00:05:00.060
there's substantial evidence
87
00:05:00.060 --> 00:05:03.960
to support all of the science you're talking about here
88
00:05:03.960 --> 00:05:07.440
that it will achieve the 10 dB.
89
00:05:07.440 --> 00:05:09.180
But they don't say that.
90
00:05:09.180 --> 00:05:13.563
They say it may and then they're gonna take a second look.
91
00:05:14.820 --> 00:05:16.770
Do you win because of that?
92
00:05:16.770 --> 00:05:21.210
Do we have to remand this to require them to clarify
93
00:05:21.210 --> 00:05:24.153
that they believe it will work?
94
00:05:25.590 --> 00:05:30.590
That it's not enough to say it may and build a big building.
95
00:05:30.887 --> 00:05:34.020
Is that enough for you to win?
96
00:05:34.020 --> 00:05:36.270
Because I'm gonna pursue that with them
97
00:05:36.270 --> 00:05:40.500
because that's what, I don't understand all this science,
98
00:05:40.500 --> 00:05:43.050
but we have a lot of deference on science.
99
00:05:43.050 --> 00:05:46.620
If the Siting Board actually makes a finding
100
00:05:46.620 --> 00:05:49.290
that says this will do this.
101
00:05:49.290 --> 00:05:51.187
We don't know deference if the Siting Board says,
102
00:05:51.187 --> 00:05:53.970
"Well, I don't know, maybe it will, maybe it won't.
103
00:05:53.970 --> 00:05:55.767
And we'll take another look later."
104
00:05:57.000 --> 00:05:58.080
Do you win?
105
00:05:58.080 --> 00:05:59.670
Well, I don't know, Your Honor,
106
00:05:59.670 --> 00:06:01.650
and only this court will decide that,
107
00:06:01.650 --> 00:06:02.483
but-
108
00:06:02.483 --> 00:06:03.929
Well, I'm asking you, should you win?
109
00:06:03.929 --> 00:06:05.760
(crowd laughing)
110
00:06:05.760 --> 00:06:07.470
I know you don't know if you're gonna win.
111
00:06:07.470 --> 00:06:11.730
I briefed that that's pretty weak to say, well,
112
00:06:11.730 --> 00:06:15.360
maybe they will be able to get manufacturers
113
00:06:15.360 --> 00:06:18.760
who will be able to make uniquely quieter equipment
114
00:06:19.720 --> 00:06:23.070
and therefore the model will prove to have been true.
115
00:06:23.070 --> 00:06:26.333
And the way I view what you're reading is,
116
00:06:26.333 --> 00:06:28.650
if they may be able to succeed
117
00:06:28.650 --> 00:06:31.050
and there's really no evidence from manufacturers
118
00:06:31.050 --> 00:06:33.750
in the record, they also may not be able to.
119
00:06:33.750 --> 00:06:37.293
And if they don't prior to the build,
120
00:06:38.310 --> 00:06:39.380
don't they...
121
00:06:41.430 --> 00:06:43.830
Then they won't be able to build this thing.
122
00:06:43.830 --> 00:06:48.030
Right, because the board said, "We don't know."
123
00:06:48.030 --> 00:06:50.550
These are aggressive assumptions.
124
00:06:50.550 --> 00:06:53.190
Epsilon is saying that they can do this,
125
00:06:53.190 --> 00:06:55.230
but these are, everybody thinks it's aggressive
126
00:06:55.230 --> 00:06:58.710
and this is the maximum that we can do on sound levels
127
00:06:58.710 --> 00:07:02.224
as they responded to the board, we can't do more.
128
00:07:02.224 --> 00:07:04.680
The board says, "I don't know."
129
00:07:04.680 --> 00:07:07.680
But before you start building,
130
00:07:07.680 --> 00:07:09.600
come back and show me
131
00:07:09.600 --> 00:07:13.050
that you've obtained the equipment from the manufacturers
132
00:07:13.050 --> 00:07:15.060
that achieves these sound levels,
133
00:07:15.060 --> 00:07:16.884
which I think was 8 dB.
134
00:07:16.884 --> 00:07:18.180
I see, 8 dB.
Right?
135
00:07:18.180 --> 00:07:19.507
So why is that not good enough?
136
00:07:19.507 --> 00:07:23.100
Can I ask, is that actually right though?
137
00:07:23.100 --> 00:07:24.810
Is that what they say?
138
00:07:24.810 --> 00:07:26.130
They don't say that.
139
00:07:26.130 --> 00:07:28.441
They say you build it
140
00:07:28.441 --> 00:07:31.620
and is that your understanding of what it says
141
00:07:31.620 --> 00:07:34.653
or is it say you can build it?
142
00:07:36.960 --> 00:07:37.894
They do both, right?
143
00:07:37.894 --> 00:07:39.780
Both, they do both.
They say come to me
144
00:07:39.780 --> 00:07:43.890
before you build it with the, you know, then
145
00:07:43.890 --> 00:07:46.763
you know, manufacturer specs
146
00:07:46.763 --> 00:07:50.130
and then if you achieve 8 dB, great.
147
00:07:50.130 --> 00:07:51.510
Then build it.
148
00:07:51.510 --> 00:07:55.650
And then after 180 days of operation, do it again.
149
00:07:55.650 --> 00:07:57.210
Yes, they have both.
150
00:07:57.210 --> 00:08:00.810
In this Condition S, which is at the heart of the matter,
151
00:08:00.810 --> 00:08:03.150
the Siting Board requires both.
152
00:08:03.150 --> 00:08:06.900
And the board says, "To get earlier visibility,"
153
00:08:06.900 --> 00:08:09.637
meaning before you spend all the money to build it,
154
00:08:09.637 --> 00:08:13.800
"When these sound power profiles," which is what it says,
155
00:08:13.800 --> 00:08:16.447
noise profiles still have to come into us,
156
00:08:16.447 --> 00:08:18.480
"Are available from the manufacturers,
157
00:08:18.480 --> 00:08:22.560
come back with a compliance filing to satisfy us
158
00:08:22.560 --> 00:08:24.690
that the manufacturers really can do this."
159
00:08:24.690 --> 00:08:26.730
The reason-
And why, and so my question
160
00:08:26.730 --> 00:08:30.501
to you was, why isn't that good enough, right?
161
00:08:30.501 --> 00:08:33.990
The board's saying, "I don't know, these are aggressive.
162
00:08:33.990 --> 00:08:34.823
Show me."
163
00:08:34.823 --> 00:08:35.656
Yeah.
164
00:08:36.540 --> 00:08:39.300
The regulations that control this process
165
00:08:39.300 --> 00:08:43.440
and your judicial review say that the decision has
166
00:08:43.440 --> 00:08:46.080
to be supported by substantial evidence
167
00:08:46.080 --> 00:08:48.600
of record in the proceeding
168
00:08:48.600 --> 00:08:51.840
and the compliance filing is coming after the proceeding.
169
00:08:51.840 --> 00:08:52.740
It's not here today.
170
00:08:52.740 --> 00:08:54.210
We don't know what it's gonna say.
171
00:08:54.210 --> 00:08:58.290
And a final was issued based on
172
00:08:58.290 --> 00:09:00.900
what the board is skeptical of.
173
00:09:00.900 --> 00:09:03.630
Your position is that this
174
00:09:03.630 --> 00:09:05.160
substation
175
00:09:05.160 --> 00:09:07.050
shall be built
176
00:09:07.050 --> 00:09:08.880
even if
177
00:09:08.880 --> 00:09:12.480
they come back pre-built and they can't meet the 8 dB
178
00:09:12.480 --> 00:09:13.980
that they've said that they couldn't.
179
00:09:13.980 --> 00:09:17.280
Yes, and it comes from the very language of the condition
180
00:09:17.280 --> 00:09:19.560
that was intended to fix the problem here
181
00:09:19.560 --> 00:09:22.950
or the lack of substantial evidence before the board.
182
00:09:22.950 --> 00:09:26.940
The languages do two things with this compliance filing.
183
00:09:26.940 --> 00:09:30.630
Give us the noise, noise profiles that are missing,
184
00:09:30.630 --> 00:09:35.630
and give us your plan to further mitigate sound as a result.
185
00:09:36.810 --> 00:09:37.810
And so this sets the scope.
186
00:09:37.810 --> 00:09:40.440
Well, it's not just to further mitigate sound.
187
00:09:40.440 --> 00:09:42.933
I thought it was further mitigate sound.
188
00:09:42.933 --> 00:09:44.940
If you can't get the manufacturers
189
00:09:44.940 --> 00:09:46.020
to give you the equipment
190
00:09:46.020 --> 00:09:48.123
under the aggressive standards, right?
191
00:09:49.500 --> 00:09:52.590
Then we're not gonna say no substation.
192
00:09:52.590 --> 00:09:54.270
But you're gonna have to build a wall
193
00:09:54.270 --> 00:09:56.490
and close the transformer, I don't know,
194
00:09:56.490 --> 00:09:59.070
do whatever you need to do in order to meet
195
00:09:59.070 --> 00:10:02.280
what you've said you can meet, which is less than 10 dB.
196
00:10:02.280 --> 00:10:03.480
Yes, that's correct.
197
00:10:03.480 --> 00:10:06.630
My concern is that there is no set of mitigation measures
198
00:10:06.630 --> 00:10:07.800
that can accomplish it.
199
00:10:07.800 --> 00:10:09.660
Can I'm confused though.
200
00:10:09.660 --> 00:10:11.970
Where in the opinion is this?
201
00:10:11.970 --> 00:10:15.210
I understand there's the decision
202
00:10:15.210 --> 00:10:18.420
and then there's these Condition S or whatever it's called
203
00:10:18.420 --> 00:10:20.520
after the thing is built.
204
00:10:20.520 --> 00:10:23.580
Where in the opinion is this compliance?
205
00:10:23.580 --> 00:10:24.540
What does it say?
206
00:10:24.540 --> 00:10:29.540
'Cause I wanna make sure that I understand that interim step
207
00:10:30.090 --> 00:10:32.163
and how that works.
208
00:10:33.510 --> 00:10:35.223
Where in the opinion is that?
209
00:10:42.102 --> 00:10:46.110
The compliance filing is in appendix one.
210
00:10:46.110 --> 00:10:48.129
Yeah, I've got the Siting Board decision.
211
00:10:48.129 --> 00:10:51.720
I really wanna read, I'd like you to read us the language.
212
00:10:51.720 --> 00:10:52.553
Yes.
213
00:10:52.553 --> 00:10:56.370
So there there is a series of appendix volumes.
214
00:10:56.370 --> 00:10:58.710
Volume 1, page 244,
215
00:10:58.710 --> 00:11:00.418
Volume 1, 244.
216
00:11:00.418 --> 00:11:01.251
Okay.
217
00:11:01.251 --> 00:11:03.810
I can read it but if you're searching for it, I'll wait.
218
00:11:03.810 --> 00:11:04.643
No, read it.
219
00:11:04.643 --> 00:11:05.476
Read it.
Okay.
220
00:11:05.476 --> 00:11:08.700
In addition, to gain earlier visibility
221
00:11:08.700 --> 00:11:11.010
of the steps being taken by the company
222
00:11:11.010 --> 00:11:12.960
to achieve this result,
223
00:11:12.960 --> 00:11:15.330
the Siting Board further directs the company
224
00:11:15.330 --> 00:11:19.620
to provide a pre-construction compliance filing,
225
00:11:19.620 --> 00:11:22.860
documenting A, than noise profiles
226
00:11:22.860 --> 00:11:26.350
of the substation equipment types listed in exhibits
227
00:11:27.300 --> 00:11:28.500
such and such.
228
00:11:28.500 --> 00:11:31.860
When the relevant information from the equipment supplier
229
00:11:31.860 --> 00:11:33.930
is made available to Park City Wind,
230
00:11:33.930 --> 00:11:38.250
and B, any additional noise mitigation measures such
231
00:11:38.250 --> 00:11:42.540
as additional or taller sound walls that the company intends
232
00:11:42.540 --> 00:11:43.860
to take as a result.
233
00:11:43.860 --> 00:11:45.513
And is there a follow-up sentence or two that says,
234
00:11:45.513 --> 00:11:50.513
that they can't build unless this decreases this below 10?
235
00:11:50.627 --> 00:11:52.620
'Cause that's the key sentence.
236
00:11:52.620 --> 00:11:54.090
I understand submitting it,
237
00:11:54.090 --> 00:11:59.090
but do they get to build before they've made a finding
238
00:11:59.670 --> 00:12:01.470
that it's below 10 or not?
239
00:12:01.470 --> 00:12:02.303
I just don't know.
240
00:12:02.303 --> 00:12:05.310
I actually went through the exercise, Your Honor, myself
241
00:12:05.310 --> 00:12:07.200
because there is no following sentence
242
00:12:07.200 --> 00:12:09.810
that says that of rewriting conditions.
243
00:12:09.810 --> 00:12:12.720
When I read the S discussion,
244
00:12:12.720 --> 00:12:15.240
it says they have to mitigate it,
245
00:12:15.240 --> 00:12:18.210
but mitigation doesn't necessarily,
246
00:12:18.210 --> 00:12:21.000
it doesn't say we will shut down the building
247
00:12:21.000 --> 00:12:22.950
if it doesn't get to below 10.
248
00:12:22.950 --> 00:12:24.270
I'm just trying to understand.
249
00:12:24.270 --> 00:12:25.800
Yeah.
'Cause we defer
250
00:12:25.800 --> 00:12:28.590
to these people tremendously.
251
00:12:28.590 --> 00:12:33.330
If they are making findings that this is below 10.
252
00:12:33.330 --> 00:12:35.160
Yes.
And we don't do what you do,
253
00:12:35.160 --> 00:12:38.400
which is, say, well, I don't like their science.
254
00:12:38.400 --> 00:12:39.610
We're just not very good at that.
255
00:12:39.610 --> 00:12:42.810
Yeah.
But if they don't reserve
256
00:12:42.810 --> 00:12:45.960
the right to prevent this from being built
257
00:12:45.960 --> 00:12:49.410
until they're established that it's below 10,
258
00:12:49.410 --> 00:12:51.030
then I understand your point.
259
00:12:51.030 --> 00:12:53.400
Yes, and Condition S would've been lawful
260
00:12:53.400 --> 00:12:55.110
if it had said two things.
261
00:12:55.110 --> 00:12:57.150
One, when the compliance filing comes in,
262
00:12:57.150 --> 00:12:58.899
there shall be a public hearing
263
00:12:58.899 --> 00:13:00.870
as a continuation of this hearing,
264
00:13:00.870 --> 00:13:02.310
and all parties shall have a chance
265
00:13:02.310 --> 00:13:03.930
to cross examine that evidence.
266
00:13:03.930 --> 00:13:06.240
And number two, at that time,
267
00:13:06.240 --> 00:13:09.990
the board should have the full array of its normal powers
268
00:13:09.990 --> 00:13:11.460
to deny the certificate.
269
00:13:11.460 --> 00:13:14.460
So what happens in the second stage then?
270
00:13:14.460 --> 00:13:16.440
This compliance, what?
271
00:13:16.440 --> 00:13:18.870
So, okay, so now at phase two,
272
00:13:18.870 --> 00:13:22.530
they're gonna submit their actual plans.
273
00:13:22.530 --> 00:13:26.040
And does there have to be a finding that it's below 10?
274
00:13:26.040 --> 00:13:28.020
Do you get any participation in that?
275
00:13:28.020 --> 00:13:29.220
What, how does that work?
276
00:13:29.220 --> 00:13:31.140
Well, a compliance filing is
277
00:13:31.140 --> 00:13:33.540
a unilaterally filed document.
278
00:13:33.540 --> 00:13:36.330
There is no guarantee that that will be
279
00:13:36.330 --> 00:13:39.510
the subject of any public discussion.
280
00:13:39.510 --> 00:13:41.367
If you look at the transcript where this is.
281
00:13:41.367 --> 00:13:43.500
But do they have to make a finding?
282
00:13:43.500 --> 00:13:46.590
Is there something in here that gives me a comfort
283
00:13:46.590 --> 00:13:48.360
that the Siting Board
284
00:13:48.360 --> 00:13:52.080
who does very sophisticated legal work.
285
00:13:52.080 --> 00:13:53.280
I think, counsel-
286
00:13:53.280 --> 00:13:55.830
Find that it supports it.
Yeah, I don't see it.
287
00:13:55.830 --> 00:13:58.440
The reason I'm here is that I'm concerned
288
00:13:58.440 --> 00:14:03.300
that if the compliance filing contains evidence
289
00:14:03.300 --> 00:14:07.530
of which the board is equally skeptical, I think,
290
00:14:07.530 --> 00:14:09.870
because it didn't warn parties
291
00:14:09.870 --> 00:14:13.350
and reserve to itself the right to deny the certificate,
292
00:14:13.350 --> 00:14:14.760
it has no choice.
293
00:14:14.760 --> 00:14:17.820
It has no authority to to revise its decision.
294
00:14:17.820 --> 00:14:21.540
And all we will be left with is trying more
295
00:14:21.540 --> 00:14:24.090
and more versions of mitigation.
296
00:14:24.090 --> 00:14:25.980
But in my opinion,
297
00:14:25.980 --> 00:14:26.910
there's testimony
298
00:14:26.910 --> 00:14:29.010
that at least the perimeter wall separating
299
00:14:29.010 --> 00:14:31.140
my client's property from the substation is
300
00:14:31.140 --> 00:14:33.060
at the point of diminishing returns.
301
00:14:33.060 --> 00:14:35.910
And they've testified that the kind of wall,
302
00:14:35.910 --> 00:14:38.730
what it's made of and the heights involved.
303
00:14:38.730 --> 00:14:41.940
But again, if they found substantial evidence
304
00:14:41.940 --> 00:14:44.583
to say it would mitigate it, you're out of luck.
305
00:14:45.660 --> 00:14:47.460
I just can't tell if they found it
306
00:14:47.460 --> 00:14:50.940
or reserved the right to make that finding, you know.
307
00:14:50.940 --> 00:14:52.650
My client has only wanted
308
00:14:52.650 --> 00:14:56.310
to have the opportunity in a public hearing format
309
00:14:56.310 --> 00:14:58.380
to look at the real evidence.
310
00:14:58.380 --> 00:15:02.610
And I think the evidence that was presented is too weak
311
00:15:02.610 --> 00:15:05.310
to meet the substantial evidence of record
312
00:15:05.310 --> 00:15:07.320
in the proceedings standard.
313
00:15:07.320 --> 00:15:10.140
And my concern is that my client won't be given
314
00:15:10.140 --> 00:15:11.340
that due process right.
315
00:15:11.340 --> 00:15:14.520
To be in a hearing room and be able to question those
316
00:15:14.520 --> 00:15:17.673
who are offering this evidence that's coming in later.
317
00:15:18.690 --> 00:15:21.678
Unless there are further questions, I'll yield the podium.
318
00:15:21.678 --> 00:15:24.341
Okay, thank you.
319
00:15:24.341 --> 00:15:25.591
Attorney Heuer.
320
00:15:32.207 --> 00:15:34.470
Chief Justices, may it please the court.
321
00:15:34.470 --> 00:15:36.690
Thad Heuer on behalf of Park City Wind.
322
00:15:36.690 --> 00:15:40.440
As a logistical note, Mr. Hitt and I have divided our time.
323
00:15:40.440 --> 00:15:43.260
We're both prepared to answer questions on any topic.
324
00:15:43.260 --> 00:15:46.050
Although technical questions about evidence may be better
325
00:15:46.050 --> 00:15:46.950
directed towards me
326
00:15:46.950 --> 00:15:48.870
and questions about the board's statutory authority
327
00:15:48.870 --> 00:15:50.570
may be better directed toward him.
328
00:15:51.600 --> 00:15:53.850
Ms. Johnson asks this court to do something
329
00:15:53.850 --> 00:15:55.650
and has never done before,
330
00:15:55.650 --> 00:15:58.410
which is to second guess and reverse the board's conclusions
331
00:15:58.410 --> 00:16:00.540
on the sufficiency and credibility
332
00:16:00.540 --> 00:16:03.210
of technical scientific expert evidence.
333
00:16:03.210 --> 00:16:04.789
And I wanna emphasize three points.
334
00:16:04.789 --> 00:16:06.510
[Justice Wendlandt] But the board doesn't actually-
335
00:16:06.510 --> 00:16:07.343
Stop me.
336
00:16:07.343 --> 00:16:08.370
Yeah.
337
00:16:08.370 --> 00:16:11.850
The board didn't actually make a finding
338
00:16:11.850 --> 00:16:13.110
on the technology.
339
00:16:13.110 --> 00:16:14.910
It said, "We don't know."
340
00:16:14.910 --> 00:16:16.053
Seems aggressive.
341
00:16:17.610 --> 00:16:18.443
Two things.
342
00:16:18.443 --> 00:16:21.120
One, it's Epsilon, the engineers here who said
343
00:16:21.120 --> 00:16:23.280
that they thought these were aggressive assumptions,
344
00:16:23.280 --> 00:16:25.050
but they knew from their expertise
345
00:16:25.050 --> 00:16:26.700
that they were reasonable ones to make.
346
00:16:26.700 --> 00:16:30.187
Yeah, and it would be a different story if the board said,
347
00:16:30.187 --> 00:16:33.900
"You know, Epsilon, they're really qualified.
348
00:16:33.900 --> 00:16:37.380
They know what they're doing and so we believe them."
349
00:16:37.380 --> 00:16:40.293
And therefore,
350
00:16:41.340 --> 00:16:46.340
we're gonna find that the project has 8 dBs
351
00:16:46.470 --> 00:16:48.000
at Ms. Johnson's house.
352
00:16:48.000 --> 00:16:48.990
I believe they did.
353
00:16:48.990 --> 00:16:50.527
If you look at the end, they say,
354
00:16:50.527 --> 00:16:54.060
"We have indeed agreed that if these conditions are met,
355
00:16:54.060 --> 00:16:55.470
the project will mitigate."
356
00:16:55.470 --> 00:16:57.868
And here's how we know that the conditions are going to
357
00:16:57.868 --> 00:16:59.618
But the conditions.
358
00:17:00.815 --> 00:17:02.640
The conditions, the parameters were set
359
00:17:02.640 --> 00:17:07.590
in order to meet the 8 dB outcome.
360
00:17:07.590 --> 00:17:11.970
And what the board says is, "We don't know if you can."
361
00:17:11.970 --> 00:17:13.590
I would beg to differ.
362
00:17:13.590 --> 00:17:16.290
So what the board says in its decision is
363
00:17:16.290 --> 00:17:21.210
we are skeptical of the ability for the sound power numbers
364
00:17:21.210 --> 00:17:22.320
for the equipment
365
00:17:22.320 --> 00:17:25.410
to be the reductions that you say they are.
366
00:17:25.410 --> 00:17:27.720
They are not saying that eight decibels
367
00:17:27.720 --> 00:17:30.210
at the property line is not the appropriate number.
368
00:17:30.210 --> 00:17:33.780
And they also say there's an absolute obligation
369
00:17:33.780 --> 00:17:35.640
to meet that eight decibel number
370
00:17:35.640 --> 00:17:37.290
regardless of how you get there.
371
00:17:37.290 --> 00:17:38.123
Where?
372
00:17:38.123 --> 00:17:39.527
Where do they say that 'cause.
373
00:17:39.527 --> 00:17:41.190
The absolute obligation?
374
00:17:41.190 --> 00:17:44.790
'Cause I want you to give us, 'cause again,
375
00:17:44.790 --> 00:17:46.290
I agree with you.
376
00:17:46.290 --> 00:17:51.090
If they made a finding that it is under 10 dB,
377
00:17:51.090 --> 00:17:55.170
that we conclude based on all this evidence that, you know,
378
00:17:55.170 --> 00:17:58.530
there's reason to believe that it will be under 10.
379
00:17:58.530 --> 00:17:59.820
I'm with you.
380
00:17:59.820 --> 00:18:03.870
What I'm not with you on is it may work, it may not.
381
00:18:03.870 --> 00:18:07.530
File some other stuff later that may work, that may not.
382
00:18:07.530 --> 00:18:12.360
And then build it and it doesn't work, mitigate it.
383
00:18:12.360 --> 00:18:15.060
But mitigating, I know a lot about mitigation
384
00:18:15.060 --> 00:18:18.150
that isn't necessarily getting it to below 10.
385
00:18:18.150 --> 00:18:19.830
I need you to find,
386
00:18:19.830 --> 00:18:22.050
and I would encourage you to be specific,
387
00:18:22.050 --> 00:18:25.770
if you can find in the opinion language that proves that,
388
00:18:25.770 --> 00:18:28.830
because I'm very troubled by the language I read.
389
00:18:28.830 --> 00:18:29.663
Right.
390
00:18:29.663 --> 00:18:32.410
So I believe it's page 244
391
00:18:33.822 --> 00:18:36.690
of Volume 1 of the appendix.
392
00:18:36.690 --> 00:18:38.317
Halfway down, it says,
393
00:18:38.317 --> 00:18:40.650
"In addition the Siting Board notes that the findings
394
00:18:40.650 --> 00:18:43.470
in this decision are based upon the record in this case.
395
00:18:43.470 --> 00:18:48.470
A project proponent has an absolute obligation to construct
396
00:18:48.570 --> 00:18:52.440
and operate its facility in conformance with all aspects
397
00:18:52.440 --> 00:18:56.070
of its proposal as presented to the Siting Board.
398
00:18:56.070 --> 00:18:58.680
And the proposal made by Park City Wind was
399
00:18:58.680 --> 00:19:02.010
that at the site, at the property line of Ms. Johnson,
400
00:19:02.010 --> 00:19:05.580
it will be no greater than eight decibels."
401
00:19:05.580 --> 00:19:07.530
That is the promise that they made.
402
00:19:07.530 --> 00:19:09.180
That's the thing that we would be held to.
403
00:19:09.180 --> 00:19:12.090
We cannot construct and move forward.
404
00:19:12.090 --> 00:19:13.380
Not only can we not construct,
405
00:19:13.380 --> 00:19:16.140
we can't even get the authorization to construct
406
00:19:16.140 --> 00:19:18.510
until we have provided a compliance filing.
407
00:19:18.510 --> 00:19:21.330
And I'd say the distinction between a compliance filing
408
00:19:21.330 --> 00:19:22.500
and additional evidence is
409
00:19:22.500 --> 00:19:24.000
the decision here has already been made.
410
00:19:24.000 --> 00:19:25.650
The Siting Board has said eight decibels
411
00:19:25.650 --> 00:19:27.780
and we think it's eight decibels is appropriate
412
00:19:27.780 --> 00:19:29.220
because of your modeling.
413
00:19:29.220 --> 00:19:31.770
Which is how the Siting Board routinely
414
00:19:31.770 --> 00:19:35.190
and always determines what a noise profile will look at.
415
00:19:35.190 --> 00:19:37.890
And they say, "That's perfectly fine as long
416
00:19:37.890 --> 00:19:39.660
as you can do a pre-construction filing
417
00:19:39.660 --> 00:19:41.430
before you even get in the ground.
418
00:19:41.430 --> 00:19:43.920
And then once you've met that obligation,
419
00:19:43.920 --> 00:19:45.540
you've gotta do a post-construction filing
420
00:19:45.540 --> 00:19:47.220
to prove it actually works."
421
00:19:47.220 --> 00:19:48.300
May I ask you a question?
422
00:19:48.300 --> 00:19:53.300
Because to my mind, part of this is maybe a drafting issue.
423
00:19:55.530 --> 00:19:58.650
If what I hear you saying,
424
00:19:58.650 --> 00:20:01.530
is that the company
425
00:20:01.530 --> 00:20:06.513
understands what the board to have done is to require a
426
00:20:08.700 --> 00:20:12.150
no greater noise increase
427
00:20:12.150 --> 00:20:16.020
at Ms. Johnson's property line than 8 dB.
428
00:20:16.020 --> 00:20:19.800
You understand that your construction of the project
429
00:20:19.800 --> 00:20:22.920
depends upon you proving that.
430
00:20:22.920 --> 00:20:25.320
Yes, I would also say, as a practical labor,
431
00:20:25.320 --> 00:20:27.390
our financing probably depends on us proving that.
432
00:20:27.390 --> 00:20:31.470
Okay, so, and we're gonna take, and now unfortunately,
433
00:20:31.470 --> 00:20:34.080
it's not quite as clearly written
434
00:20:34.080 --> 00:20:36.303
in the Siting Board's decision.
435
00:20:37.920 --> 00:20:40.920
But if there is agreement that that is actually
436
00:20:40.920 --> 00:20:42.630
what the Siting Board meant,
437
00:20:42.630 --> 00:20:46.770
that in other words construction depends upon your meeting
438
00:20:46.770 --> 00:20:49.770
this representation that was made
439
00:20:49.770 --> 00:20:53.070
and that you establish that before construction,
440
00:20:53.070 --> 00:20:57.720
that that's actually what's meant by Condition S.
441
00:20:57.720 --> 00:20:59.370
Is there a way that, what do we do?
442
00:20:59.370 --> 00:21:01.630
Do we remand for clarification
443
00:21:02.490 --> 00:21:05.010
so that that's rock solid?
444
00:21:05.010 --> 00:21:06.390
Can we do that?
445
00:21:06.390 --> 00:21:11.390
Or because I'm looking at the language on page 170.
446
00:21:13.560 --> 00:21:16.383
Where it looks to me that,
447
00:21:17.550 --> 00:21:21.390
that what the board is saying is that,
448
00:21:21.390 --> 00:21:24.840
you're going to have to prove that you actually meet that
449
00:21:24.840 --> 00:21:28.950
within 180 days after operation.
450
00:21:28.950 --> 00:21:31.380
Undeniably.
Actual compliance.
451
00:21:31.380 --> 00:21:32.460
Absolutely.
452
00:21:32.460 --> 00:21:34.050
But then the second sentence,
453
00:21:34.050 --> 00:21:39.050
when it comes to the pre-construction compliance report,
454
00:21:39.180 --> 00:21:43.500
it doesn't actually repeat the 8 dB standard.
455
00:21:43.500 --> 00:21:45.210
It says,
456
00:21:45.210 --> 00:21:47.130
you must give us
457
00:21:47.130 --> 00:21:50.340
a pre-construction compliance filing document
458
00:21:50.340 --> 00:21:53.970
that the noise profiles on the equipments listed
459
00:21:53.970 --> 00:21:58.560
in these tables are going to be made available to you
460
00:21:58.560 --> 00:21:59.700
from the manufacturers.
461
00:21:59.700 --> 00:22:03.180
In other words, it seems to be more like a requirement
462
00:22:03.180 --> 00:22:05.130
that you have to prove that you can get
463
00:22:05.130 --> 00:22:07.470
what you've listed from manufacturers.
464
00:22:07.470 --> 00:22:09.932
But it doesn't repeat the,
465
00:22:09.932 --> 00:22:14.610
what I assume is really the relevant thing for Ms. Johnson,
466
00:22:14.610 --> 00:22:15.490
which is that
467
00:22:16.350 --> 00:22:19.457
what comes across her property line is no more than 8 dB.
468
00:22:19.457 --> 00:22:20.910
Right, so I'd make two points.
469
00:22:20.910 --> 00:22:22.470
One, I think we need to continue reading
470
00:22:22.470 --> 00:22:23.340
that sentence there.
471
00:22:23.340 --> 00:22:24.450
Okay.
Right, so we're
472
00:22:24.450 --> 00:22:25.660
in the middle of 170.
473
00:22:25.660 --> 00:22:27.217
Yeah.
And it says,
474
00:22:27.217 --> 00:22:28.950
"To gain earlier visibility, et cetera."
475
00:22:28.950 --> 00:22:30.097
We've read that, and it says,
476
00:22:30.097 --> 00:22:32.490
"B, any additional noise mitigation measures
477
00:22:32.490 --> 00:22:34.920
such as additional or taller sound walls
478
00:22:34.920 --> 00:22:38.586
that the company intends to take as a result."
479
00:22:38.586 --> 00:22:40.290
I understand.
And those words are critical
480
00:22:40.290 --> 00:22:43.350
because if you've met the 8 dB
481
00:22:43.350 --> 00:22:47.160
with simply your sound power levels of your equipment,
482
00:22:47.160 --> 00:22:49.307
then there is no additional noise mitigation measures.
483
00:22:49.307 --> 00:22:52.200
But it doesn't actually reference the 8 dB.
484
00:22:52.200 --> 00:22:53.220
That's my only point.
485
00:22:53.220 --> 00:22:54.053
But again-
486
00:22:54.053 --> 00:22:56.820
In order is 244, the sentence you read us there
487
00:22:56.820 --> 00:22:59.270
also doesn't reference the 8 dB.
488
00:22:59.270 --> 00:23:02.640
It just says if you make changes in the project,
489
00:23:02.640 --> 00:23:04.230
you gotta tell us about it.
490
00:23:04.230 --> 00:23:08.166
And the first sentence is you gotta build it as
491
00:23:08.166 --> 00:23:10.800
with all aspects of its proposal.
492
00:23:10.800 --> 00:23:12.483
But the proposal.
493
00:23:13.770 --> 00:23:15.540
The proposal is the construction,
494
00:23:15.540 --> 00:23:17.550
not necessarily the result of the construction.
495
00:23:17.550 --> 00:23:18.383
I don't know.
496
00:23:18.383 --> 00:23:21.570
No, again, I'd go back to the words absolute obligation.
497
00:23:21.570 --> 00:23:22.410
You have to read this.
498
00:23:22.410 --> 00:23:23.600
Not just page 244,
499
00:23:23.600 --> 00:23:26.970
but this is a hundred and some odd page decision
500
00:23:26.970 --> 00:23:29.760
with several thousand pages of application.
501
00:23:29.760 --> 00:23:31.047
That application says,
502
00:23:31.047 --> 00:23:32.460
and we can put into the record
503
00:23:32.460 --> 00:23:34.890
that 8 decibels at the property line,
504
00:23:34.890 --> 00:23:37.050
it's in the record, it's not in the appendix.
505
00:23:37.050 --> 00:23:39.540
8 decibels at the property line is
506
00:23:39.540 --> 00:23:40.650
what we are going to build to.
507
00:23:40.650 --> 00:23:43.590
And that's what we are instructed by the Siting Board to do.
508
00:23:43.590 --> 00:23:45.990
We have an absolute obligation, we can't get out of it.
509
00:23:45.990 --> 00:23:47.640
It's not, maybe you can come in at 10,
510
00:23:47.640 --> 00:23:48.840
and we'll talk about it.
511
00:23:48.840 --> 00:23:51.270
Maybe you're at six and a half and that's okay.
512
00:23:51.270 --> 00:23:54.450
They said eight and we have to meet eight.
513
00:23:54.450 --> 00:23:55.803
I'd make other one other point briefly.
514
00:23:55.803 --> 00:23:57.322
[Justice Wendlandt] But you could be less.
515
00:23:57.322 --> 00:23:59.160
Certainly, we could be less.
516
00:23:59.160 --> 00:24:01.350
But I think that's another key point here.
517
00:24:01.350 --> 00:24:02.970
But it's the, or else.
518
00:24:02.970 --> 00:24:05.370
I understand you have to meet it,
519
00:24:05.370 --> 00:24:07.953
but they're skeptical that you can do it.
520
00:24:08.880 --> 00:24:13.170
And then they have this three stages of evaluating it,
521
00:24:13.170 --> 00:24:16.410
including, the whole post-construction indicates
522
00:24:16.410 --> 00:24:17.940
they're not comfortable
523
00:24:17.940 --> 00:24:21.030
that you're gonna achieve it at either the first
524
00:24:21.030 --> 00:24:23.100
that your proposal achieves it,
525
00:24:23.100 --> 00:24:25.200
the compliance documents achieves it,
526
00:24:25.200 --> 00:24:28.263
or so we've got this third mitigation.
527
00:24:29.148 --> 00:24:31.209
Shouldn't we require them to be,
528
00:24:31.209 --> 00:24:35.313
if the Siting Board has said it, why not make them do it?
529
00:24:37.920 --> 00:24:39.330
First of all, I'd say that as a practical matter,
530
00:24:39.330 --> 00:24:40.163
they are going to do it.
531
00:24:40.163 --> 00:24:42.120
That's what they, as Justice Wolohojian said,
532
00:24:42.120 --> 00:24:43.950
that's our understanding of what this requires.
533
00:24:43.950 --> 00:24:45.510
That we have to meet eight decibels
534
00:24:45.510 --> 00:24:47.070
at the pre-construction filing
535
00:24:47.070 --> 00:24:48.604
and the post-construction filing.
536
00:24:48.604 --> 00:24:51.150
I don't wanna get to a point where we're saying
537
00:24:51.150 --> 00:24:54.030
that modeling isn't substantial evidence,
538
00:24:54.030 --> 00:24:56.037
modeling is how substantial evidence is found.
539
00:24:56.037 --> 00:24:56.870
I think we disagree
540
00:24:56.870 --> 00:24:58.950
with the science.
Okay.
541
00:24:58.950 --> 00:25:02.790
It's how they articulate what they've found.
542
00:25:02.790 --> 00:25:05.610
We understand we owe, what we use the words,
543
00:25:05.610 --> 00:25:06.690
great deference.
544
00:25:06.690 --> 00:25:08.787
We go on and on about the deference we owe,
545
00:25:08.787 --> 00:25:11.730
but we require them to say it.
546
00:25:11.730 --> 00:25:14.400
We don't sort of let them dance
547
00:25:14.400 --> 00:25:17.417
around about their skepticism and things like that.
548
00:25:17.417 --> 00:25:19.983
And we will ask him directly but,
549
00:25:21.240 --> 00:25:23.220
do we-
So, I'd make two points
550
00:25:23.220 --> 00:25:24.053
on this one.
551
00:25:24.053 --> 00:25:25.110
I just wanna bring the court back to
552
00:25:25.110 --> 00:25:28.170
what it said in the Andover case about 20 years ago
553
00:25:28.170 --> 00:25:30.120
where the exact same question was raised
554
00:25:30.120 --> 00:25:32.310
and the court said, "The interveners challenged
555
00:25:32.310 --> 00:25:34.020
the proposed sound mitigation measures
556
00:25:34.020 --> 00:25:37.260
as lacking in final design specifications,
557
00:25:37.260 --> 00:25:38.190
as with air emissions,"
558
00:25:38.190 --> 00:25:39.697
which we're also at issue in that case,
559
00:25:39.697 --> 00:25:42.030
"It makes little sense to require a developer
560
00:25:42.030 --> 00:25:44.670
to finalize the details of sound mitigation measures
561
00:25:44.670 --> 00:25:46.560
until it learns what additional measures
562
00:25:46.560 --> 00:25:48.780
the department might require."
563
00:25:48.780 --> 00:25:50.310
This court has already recognized
564
00:25:50.310 --> 00:25:52.350
that these are complex projects
565
00:25:52.350 --> 00:25:55.080
and that there is some level of determination
566
00:25:55.080 --> 00:25:56.910
when you go forward as to exactly
567
00:25:56.910 --> 00:25:59.070
how you're going to meet the standard
568
00:25:59.070 --> 00:26:00.510
that the board has set.
569
00:26:00.510 --> 00:26:02.070
Here, we have a situation
570
00:26:02.070 --> 00:26:03.570
where they have said there are two ways,
571
00:26:03.570 --> 00:26:05.370
and you see this in the expert testimony,
572
00:26:05.370 --> 00:26:07.740
to determine where you're gonna get your sound level to.
573
00:26:07.740 --> 00:26:10.050
One is making the equipment quieter
574
00:26:10.050 --> 00:26:11.700
and the other is onsite mitigations,
575
00:26:11.700 --> 00:26:15.090
balls or blankets or whatever else you're going to mitigate.
576
00:26:15.090 --> 00:26:17.687
External power levels of the equipment.
577
00:26:17.687 --> 00:26:21.210
All the board is saying when it is saying we are skeptical
578
00:26:21.210 --> 00:26:23.760
and we can go back to that language,
579
00:26:23.760 --> 00:26:26.190
is the board says, "We are skeptical.
580
00:26:26.190 --> 00:26:27.270
Here's the skepticism
581
00:26:27.270 --> 00:26:29.190
regarding the company's self-described
582
00:26:29.190 --> 00:26:30.690
aggressive assumptions,
583
00:26:30.690 --> 00:26:32.370
regarding the noise profiles
584
00:26:32.370 --> 00:26:35.670
of its intended substation equipment."
585
00:26:35.670 --> 00:26:37.980
It is saying, "We are not sure you can meet it
586
00:26:37.980 --> 00:26:39.720
with the substation equipment,
587
00:26:39.720 --> 00:26:41.370
but we're not saying we don't think you can meet it,
588
00:26:41.370 --> 00:26:43.710
you just may need to do more mitigation."
589
00:26:43.710 --> 00:26:45.480
And that's exactly what they say in the next page
590
00:26:45.480 --> 00:26:48.120
when they say, "Right, your pre-compliance filing,
591
00:26:48.120 --> 00:26:49.740
show us your sound power levels.
592
00:26:49.740 --> 00:26:50.850
But if they're coming in too high,
593
00:26:50.850 --> 00:26:53.340
you better be showing us some more mitigation."
594
00:26:53.340 --> 00:26:55.380
That's exactly what this condition says.
595
00:26:55.380 --> 00:26:57.628
And that's exactly what this preceding says.
596
00:26:57.628 --> 00:26:59.730
I think-
This is table 7-3,
597
00:26:59.730 --> 00:27:02.100
all of the equipment or is there missing
598
00:27:02.100 --> 00:27:03.750
from that requirement?
599
00:27:03.750 --> 00:27:05.010
Table 7-4.
600
00:27:05.010 --> 00:27:07.590
Table 7-4 was an errata.
601
00:27:07.590 --> 00:27:10.590
The decision has been revised by the Siting Board
602
00:27:10.590 --> 00:27:11.700
to incorporate 7-4.
603
00:27:11.700 --> 00:27:13.670
It was always intended that they were both done.
604
00:27:13.670 --> 00:27:14.640
[Justice Wendlandt] Okay.
605
00:27:14.640 --> 00:27:17.190
So all the equipment at the site is subject
606
00:27:17.190 --> 00:27:18.810
to these requirements.
607
00:27:18.810 --> 00:27:22.140
I think the analogy I might give is you have a patient
608
00:27:22.140 --> 00:27:24.690
who goes to a doctor and says, "I wanna lose 10 pounds,
609
00:27:24.690 --> 00:27:26.760
but I only wanna do it through exercise
610
00:27:26.760 --> 00:27:28.350
'cause I don't wanna give up the ice cream."
611
00:27:28.350 --> 00:27:29.183
Right?
612
00:27:29.183 --> 00:27:31.560
The doctor says, "There is substantial evidence
613
00:27:31.560 --> 00:27:33.600
that you're gonna be able to lose 10 pounds,
614
00:27:33.600 --> 00:27:37.500
but I'm skeptical that exercise alone is gonna do it.
615
00:27:37.500 --> 00:27:40.530
But exercise and diet, you can get to that 10 pounds."
616
00:27:40.530 --> 00:27:42.690
That's essentially what the Siting Board is saying here.
617
00:27:42.690 --> 00:27:44.160
We're not sure you're gonna get to it
618
00:27:44.160 --> 00:27:45.960
with your aggressive presumptions
619
00:27:45.960 --> 00:27:48.960
on the sound power noise levels of the equipment.
620
00:27:48.960 --> 00:27:50.640
But we're not saying you can't get to eight
621
00:27:50.640 --> 00:27:52.790
and regardless, we're holding you to eight.
622
00:27:53.730 --> 00:27:54.780
If there are no further questions,
623
00:27:54.780 --> 00:27:56.680
I would defer to the attorney general.
624
00:27:58.650 --> 00:27:59.603
Okay.
625
00:28:02.100 --> 00:28:03.003
Attorney Hitt.
626
00:28:05.100 --> 00:28:06.090
May it please the court.
627
00:28:06.090 --> 00:28:07.920
Assistant Attorney General John Hitt
628
00:28:07.920 --> 00:28:09.930
for the Siting Board in this case.
629
00:28:09.930 --> 00:28:12.900
I'm gonna kind of restructure my argument to try
630
00:28:12.900 --> 00:28:15.870
and jump right to answering some of your questions
631
00:28:15.870 --> 00:28:19.923
that were just proposed or proposed by you all.
632
00:28:20.940 --> 00:28:22.320
In particular,
633
00:28:22.320 --> 00:28:25.170
so the Siting Board does go through and discuss
634
00:28:25.170 --> 00:28:30.170
and find substantial evidence to support the noise modeling
635
00:28:30.240 --> 00:28:35.160
and what ultimately becomes its discussion of Condition S.
636
00:28:35.160 --> 00:28:37.290
If you look in the Siting Board's decision
637
00:28:37.290 --> 00:28:41.550
at pages 153 to 154, I'm referring to a page number,
638
00:28:41.550 --> 00:28:43.950
which is actually on the upper right hand corner
639
00:28:43.950 --> 00:28:45.720
of the Siting Board decision,
640
00:28:45.720 --> 00:28:47.773
because the Siting Board appears in, you know,
641
00:28:47.773 --> 00:28:50.550
different addendums and appendices.
642
00:28:50.550 --> 00:28:52.170
There, the Siting Board,
643
00:28:52.170 --> 00:28:54.330
this is where the skepticism language is
644
00:28:54.330 --> 00:28:56.310
and where they kind of get into the heart of discussing
645
00:28:56.310 --> 00:28:58.800
what they ultimately convert into the language
646
00:28:58.800 --> 00:29:00.300
in Condition S.
647
00:29:00.300 --> 00:29:04.963
The skepticism that the board expresses is simply on the
648
00:29:07.200 --> 00:29:09.240
ability to mitigate the noise.
649
00:29:09.240 --> 00:29:12.750
So, you know, once the equipment is built,
650
00:29:12.750 --> 00:29:16.620
if it's going to have the, you know,
651
00:29:16.620 --> 00:29:18.270
all of the sound baffles
652
00:29:18.270 --> 00:29:21.060
and things built into the particular piece of equipment,
653
00:29:21.060 --> 00:29:23.490
the use of the word skepticism really just refers
654
00:29:23.490 --> 00:29:24.323
to that narrow.
655
00:29:24.323 --> 00:29:25.560
Why don't you?
656
00:29:25.560 --> 00:29:29.010
You know, I find, read it to us and tell us why,
657
00:29:29.010 --> 00:29:30.810
'cause and I thought.
658
00:29:30.810 --> 00:29:35.670
I was reading, is 171 the same as the other page
659
00:29:35.670 --> 00:29:37.970
where we get these two clauses 'cause...
660
00:29:38.815 --> 00:29:39.870
Yeah, it's 169.
Yes.
661
00:29:39.870 --> 00:29:40.703
Yeah.
Yes.
662
00:29:40.703 --> 00:29:45.530
So, tell us why that means that they're not skeptical.
663
00:29:46.920 --> 00:29:48.780
You know, I'm at a loss
664
00:29:48.780 --> 00:29:51.390
that they think the mitigation won't work.
665
00:29:51.390 --> 00:29:52.680
They're skeptical on the mitigation,
666
00:29:52.680 --> 00:29:53.790
but they're not skeptical
667
00:29:53.790 --> 00:29:56.253
that this is gonna produce the 10 dB.
668
00:29:58.680 --> 00:30:00.270
So, Your Honor, I would start on
669
00:30:00.270 --> 00:30:02.160
the second page of their discussion at the,
670
00:30:02.160 --> 00:30:05.850
where they say, "In addition, the Siting Board notes
671
00:30:05.850 --> 00:30:07.380
that the record demonstrates
672
00:30:07.380 --> 00:30:10.560
that several aspects of the Cadden A sound model
673
00:30:10.560 --> 00:30:12.960
used to assess noise impacts at
674
00:30:12.960 --> 00:30:15.870
or near receptors are likely to be conservative
675
00:30:15.870 --> 00:30:19.380
and actual noise impacts may be less than model.
676
00:30:19.380 --> 00:30:21.990
So on all the evidence, you know,
677
00:30:21.990 --> 00:30:24.660
obviously, it's not like we're going to Home Depot
678
00:30:24.660 --> 00:30:28.290
and taking something off the shelf to,
679
00:30:28.290 --> 00:30:30.960
you know, to be the basis of what is going
680
00:30:30.960 --> 00:30:33.210
to be in evidence before the Siting Board.
681
00:30:33.210 --> 00:30:36.030
Here, they're relying on this modeling
682
00:30:36.030 --> 00:30:38.130
and in terms of the evidence that was submitted
683
00:30:38.130 --> 00:30:41.490
at the Siting Board hearing relating to the modeling,
684
00:30:41.490 --> 00:30:43.320
there was substantial evidence to show
685
00:30:43.320 --> 00:30:46.980
that they would meet their either eight decibel.
686
00:30:46.980 --> 00:30:47.813
Yes, Your Honor.
687
00:30:47.813 --> 00:30:52.470
Oh, as I understand the crux of Ms. Johnson's argument
688
00:30:52.470 --> 00:30:54.840
as it was presented here today.
689
00:30:54.840 --> 00:30:59.840
Is that the true objection is that there'll never be
690
00:31:01.770 --> 00:31:04.110
in a procedure
691
00:31:04.110 --> 00:31:05.790
by which
692
00:31:05.790 --> 00:31:10.650
the pre-construction report
693
00:31:10.650 --> 00:31:15.540
or the post-construction report can be tested.
694
00:31:15.540 --> 00:31:19.140
And particularly, the pre-construction report.
695
00:31:19.140 --> 00:31:21.607
So that when the company comes back and says,
696
00:31:21.607 --> 00:31:23.190
"Oh, here's, you know, whatever.
697
00:31:23.190 --> 00:31:27.960
We have more modeling, we have quotes from manufacturers,
698
00:31:27.960 --> 00:31:29.460
et cetera, et cetera."
699
00:31:29.460 --> 00:31:33.510
There's never going to be an evidentiary process by which
700
00:31:33.510 --> 00:31:36.330
to test the accuracy of those things.
701
00:31:36.330 --> 00:31:37.710
That's what I understood
702
00:31:37.710 --> 00:31:41.260
to be the crux of the argument today was that,
703
00:31:41.260 --> 00:31:45.000
that the plaintiff could essentially live with Condition S,
704
00:31:45.000 --> 00:31:47.040
understanding it as it's been explained today
705
00:31:47.040 --> 00:31:50.433
to actually require 8 dB at her property line,
706
00:31:52.080 --> 00:31:55.380
provided there's an evidentiary process for testing it.
707
00:31:55.380 --> 00:31:56.730
What do you say about that?
708
00:31:56.730 --> 00:31:59.250
Because that sort of makes sense to me that
709
00:31:59.250 --> 00:32:02.950
where there's an express skepticism about
710
00:32:03.870 --> 00:32:07.203
the evidence the company presented at this stage,
711
00:32:09.120 --> 00:32:13.410
the board has expressed that skepticism,
712
00:32:13.410 --> 00:32:16.650
and has asked for a report to try to allay that
713
00:32:16.650 --> 00:32:18.720
for the future because they want to make sure
714
00:32:18.720 --> 00:32:20.400
that the company's going to be able
715
00:32:20.400 --> 00:32:23.760
to report to meet this standard.
716
00:32:23.760 --> 00:32:27.930
Why shouldn't there be some kind of process built in
717
00:32:27.930 --> 00:32:31.140
similar to what occurred before the Siting Board decision
718
00:32:31.140 --> 00:32:33.840
as to this one open piece?
719
00:32:33.840 --> 00:32:36.390
Well, I think here, Your Honor,
720
00:32:36.390 --> 00:32:38.490
the board was trying to do that
721
00:32:38.490 --> 00:32:40.530
and do that balancing trick that it has to do
722
00:32:40.530 --> 00:32:43.620
where here, it is the agency that has to go first
723
00:32:43.620 --> 00:32:46.320
in the entire permitting process, you know,
724
00:32:46.320 --> 00:32:47.153
first, the model-
725
00:32:47.153 --> 00:32:48.030
But doesn't it, at some point,
726
00:32:48.030 --> 00:32:50.580
actually have to make a decision?
727
00:32:50.580 --> 00:32:55.380
That whether that 8 dB can be or has been met?
728
00:32:55.380 --> 00:32:56.340
Yes, Your Honor.
729
00:32:56.340 --> 00:32:58.870
And it did.
So how will it do that
730
00:33:00.090 --> 00:33:02.280
once these reports are filed?
731
00:33:02.280 --> 00:33:04.320
Just accept the reports?
732
00:33:04.320 --> 00:33:07.923
Those tests, those reports will just be taken at face value?
733
00:33:08.850 --> 00:33:11.610
Well, Your Honor, they did make a decision
734
00:33:11.610 --> 00:33:13.230
that based on the evidence in the record,
735
00:33:13.230 --> 00:33:15.450
which was the modeling and the expert testimony
736
00:33:15.450 --> 00:33:17.910
provided by the experts about the modeling
737
00:33:17.910 --> 00:33:20.520
that the 8 dB level would be met.
738
00:33:20.520 --> 00:33:22.770
So they made a decision on that issue.
739
00:33:22.770 --> 00:33:26.010
And they said that expressly anywhere in this thing?
740
00:33:26.010 --> 00:33:27.030
'Cause that would be great
741
00:33:27.030 --> 00:33:28.879
if they actually had written that.
742
00:33:28.879 --> 00:33:32.610
In those two pages of the decision which they discuss in,
743
00:33:32.610 --> 00:33:36.660
we're looking in sub-part four of their decision
744
00:33:36.660 --> 00:33:38.610
discussing the environmental impacts.
745
00:33:38.610 --> 00:33:40.350
On those two pages, they do.
746
00:33:40.350 --> 00:33:42.300
When you look at the use of the word skepticism,
747
00:33:42.300 --> 00:33:44.760
it's not skepticism about the entire project.
748
00:33:44.760 --> 00:33:46.140
Right.
But if you read
749
00:33:46.140 --> 00:33:48.047
the next part of it, you know,
750
00:33:48.047 --> 00:33:51.330
they may be able to secure equipment, but then they go on.
751
00:33:51.330 --> 00:33:52.890
Should the actual noise impacts
752
00:33:52.890 --> 00:33:55.380
exceed those presented to the record,
753
00:33:55.380 --> 00:34:00.210
especially if violated of the MassDEP noise policy.
754
00:34:00.210 --> 00:34:03.183
The Siting Board can require additional mitigation.
755
00:34:04.170 --> 00:34:09.170
I mean, is that the language we normally get
756
00:34:09.330 --> 00:34:10.942
from the Siting Board?
757
00:34:10.942 --> 00:34:15.780
This is consistent with its past practice
758
00:34:15.780 --> 00:34:17.940
and also consistent with the language of this court
759
00:34:17.940 --> 00:34:19.110
in the Andover case.
760
00:34:19.110 --> 00:34:20.220
Is it your understanding?
761
00:34:20.220 --> 00:34:23.110
By the way, they can't build this thing
762
00:34:24.030 --> 00:34:25.953
unless it's demonstrated.
763
00:34:27.750 --> 00:34:29.730
Do you have another look at this?
764
00:34:29.730 --> 00:34:34.730
If this doesn't work, is this thing ready to build?
765
00:34:35.010 --> 00:34:36.660
I'm just trying to understand.
766
00:34:36.660 --> 00:34:39.180
Have you allowed them to build,
767
00:34:39.180 --> 00:34:42.130
meaning the Siting Board has allowed them to build
768
00:34:43.050 --> 00:34:45.270
and then whatever mitigations necessary
769
00:34:45.270 --> 00:34:47.220
after it's built will be,
770
00:34:47.220 --> 00:34:50.070
I'm just trying to understand what rights you have
771
00:34:50.070 --> 00:34:51.603
if this doesn't work anymore.
772
00:34:52.620 --> 00:34:55.680
So, they get the equipment built
773
00:34:55.680 --> 00:34:59.850
once they have the permit issued and in hand.
774
00:34:59.850 --> 00:35:01.237
So, the trick here or the-
775
00:35:01.237 --> 00:35:04.050
They have the permit now?
776
00:35:04.050 --> 00:35:04.883
Yes, the permit.
777
00:35:04.883 --> 00:35:06.840
So they have the permit.
778
00:35:06.840 --> 00:35:08.740
They can build this building
779
00:35:09.630 --> 00:35:13.170
and all of this stuff is about mitigation after.
780
00:35:13.170 --> 00:35:14.430
I'm just trying to understand.
781
00:35:14.430 --> 00:35:18.330
Have you given the go ahead to build this
782
00:35:18.330 --> 00:35:20.310
even though you're not sure this is gonna work?
783
00:35:20.310 --> 00:35:22.590
Well, this is the first permit
784
00:35:22.590 --> 00:35:25.200
and there's many different steps that, you know,
785
00:35:25.200 --> 00:35:28.290
as you know, that they have to weave their way through.
786
00:35:28.290 --> 00:35:32.370
So, you know, this grants them that permit to start,
787
00:35:32.370 --> 00:35:35.160
you know, so they can start to, you know,
788
00:35:35.160 --> 00:35:36.840
go out and have order equipment
789
00:35:36.840 --> 00:35:39.960
and have what they need to have made.
790
00:35:39.960 --> 00:35:41.910
Can they start to build the building?
791
00:35:41.910 --> 00:35:44.401
The sub, this, whatever this thing is.
792
00:35:44.401 --> 00:35:45.280
Yeah, they start.
793
00:35:45.280 --> 00:35:46.343
It's not in the record.
794
00:35:46.343 --> 00:35:49.290
Based on what you have permitted right now,
795
00:35:49.290 --> 00:35:53.100
can they start construction of this facility?
796
00:35:53.100 --> 00:35:54.510
I think they can move on
797
00:35:54.510 --> 00:35:57.360
in the permit granting process.
798
00:35:57.360 --> 00:35:59.673
And what's the next, what's the permit?
799
00:36:00.750 --> 00:36:05.190
Does the DEP have a 10 dB review later in this?
800
00:36:05.190 --> 00:36:06.390
I'm just trying to understand,
801
00:36:06.390 --> 00:36:10.920
how does the 10 dB get enforced after this?
802
00:36:10.920 --> 00:36:14.160
Well, again, here with this Condition S, you know,
803
00:36:14.160 --> 00:36:16.890
this is in trying to balance.
804
00:36:16.890 --> 00:36:19.890
Condition S happens after it's built.
805
00:36:19.890 --> 00:36:22.830
After it's built, you can require additional mitigation.
806
00:36:22.830 --> 00:36:26.430
There's a pre-construction filing condition,
807
00:36:26.430 --> 00:36:30.180
compliance filing that's in contained in Condition S.
808
00:36:30.180 --> 00:36:33.930
So, the Justice Wendlandt asked your opposing counsel
809
00:36:33.930 --> 00:36:36.720
about, or your prior counsel about that.
810
00:36:36.720 --> 00:36:41.720
What is your understanding of what happens there?
811
00:36:42.690 --> 00:36:45.870
Do you have to make another judgment call that it works
812
00:36:45.870 --> 00:36:47.730
before they start to build?
813
00:36:47.730 --> 00:36:51.070
Or can you delay it until after it's built again?
814
00:36:51.070 --> 00:36:53.520
Well, I think it will depend on what
815
00:36:53.520 --> 00:36:55.481
that pre-construction compliance.
816
00:36:55.481 --> 00:36:57.600
[Justice Wendlandt] So let's say it comes in at 14 dB
817
00:36:57.600 --> 00:36:58.770
at Ms. Johnson's house.
818
00:36:58.770 --> 00:36:59.820
What happens?
819
00:36:59.820 --> 00:37:01.260
Well, at that point, you know,
820
00:37:01.260 --> 00:37:03.870
based on what the Siting Board, you know,
821
00:37:03.870 --> 00:37:07.050
does in these types of cases, they will, whole process.
822
00:37:07.050 --> 00:37:11.700
So they will ask the project proponent
823
00:37:11.700 --> 00:37:13.800
to submit additional information.
824
00:37:13.800 --> 00:37:18.800
They will provide notice to the abutter for her
825
00:37:18.930 --> 00:37:21.930
to also provide comments and ask for additional process.
826
00:37:21.930 --> 00:37:24.030
This is, you know, the Siting Board has,
827
00:37:24.030 --> 00:37:26.100
as it did in the Box Pond case,
828
00:37:26.100 --> 00:37:28.530
has a process that they follow
829
00:37:28.530 --> 00:37:31.470
that's been set forth in the decisions of this court
830
00:37:31.470 --> 00:37:33.120
and also the Siting Board
831
00:37:33.120 --> 00:37:34.670
whereby they will take additional steps in.
832
00:37:34.670 --> 00:37:37.230
So your position today is
833
00:37:37.230 --> 00:37:41.820
that Ms. Johnson would have the ability standing
834
00:37:41.820 --> 00:37:45.900
and or be welcome by the board
835
00:37:45.900 --> 00:37:49.380
to object to any pre-construction report
836
00:37:49.380 --> 00:37:52.054
showing greater than 8 dB.
837
00:37:52.054 --> 00:37:53.010
Yes.
838
00:37:53.010 --> 00:37:54.507
And when you look at the-
839
00:37:54.507 --> 00:37:57.780
And so, any pre-construction report
840
00:37:57.780 --> 00:38:00.930
showing greater than dB would be a change
841
00:38:00.930 --> 00:38:02.823
in the proposed project, right?
842
00:38:04.050 --> 00:38:05.850
I'm sorry.
Or it could be, right?
843
00:38:05.850 --> 00:38:08.790
If the company said, "I'm not mitigating anymore.
844
00:38:08.790 --> 00:38:10.830
14 dB, just live with it."
845
00:38:10.830 --> 00:38:11.663
Right.
Right?
846
00:38:11.663 --> 00:38:12.807
And that would be require a change
847
00:38:12.807 --> 00:38:15.840
and that would reopen the process.
848
00:38:15.840 --> 00:38:16.673
Yes.
849
00:38:16.673 --> 00:38:18.270
Yes, to the public, right?
What about nine.
850
00:38:18.270 --> 00:38:19.103
Sorry.
851
00:38:19.103 --> 00:38:20.230
I'm sorry, I didn't hear both questions.
852
00:38:20.230 --> 00:38:22.830
So it would open it to the public, right?
853
00:38:22.830 --> 00:38:24.990
To Ms. Johnson, abutters, people like that.
854
00:38:24.990 --> 00:38:26.160
It rises to the level
855
00:38:26.160 --> 00:38:27.630
of being a project change.
856
00:38:27.630 --> 00:38:28.463
Yeah.
Then yes.
857
00:38:28.463 --> 00:38:29.340
There is additional process in this.
858
00:38:29.340 --> 00:38:32.070
And even with regard to the pre-construction bill,
859
00:38:32.070 --> 00:38:36.150
the board has specified that the company shall communicate
860
00:38:36.150 --> 00:38:39.750
with Ms. Johnson about additional noise mitigation measures
861
00:38:39.750 --> 00:38:42.030
and attempt to reach consensus.
862
00:38:42.030 --> 00:38:45.330
So the board has actually inserted this particular abutter
863
00:38:45.330 --> 00:38:48.270
into the conversation
864
00:38:48.270 --> 00:38:52.590
regarding to the pre-construction compliance filing.
865
00:38:52.590 --> 00:38:53.520
Yes, Your Honor.
866
00:38:53.520 --> 00:38:55.200
The idea here is that this, I mean,
867
00:38:55.200 --> 00:38:58.440
because this first step in the permitting process goes
868
00:38:58.440 --> 00:39:00.960
so early and before the equipment is actually built,
869
00:39:00.960 --> 00:39:02.940
the board is trying to build in process
870
00:39:02.940 --> 00:39:04.680
and they have, with this condition,
871
00:39:04.680 --> 00:39:06.780
for the abutter to have the ability
872
00:39:06.780 --> 00:39:10.150
to have additional process beyond what would
873
00:39:12.270 --> 00:39:13.380
typically exist.
874
00:39:13.380 --> 00:39:15.570
And does the Siting Board need to do anything?
875
00:39:15.570 --> 00:39:18.993
So, say it comes in as Justice Wendlandt just said at 14.
876
00:39:21.810 --> 00:39:24.210
Does the Siting Board have to do anything at that point?
877
00:39:24.210 --> 00:39:27.150
I understand you're getting some materials,
878
00:39:27.150 --> 00:39:29.910
but does the Siting Board need to issue another decision
879
00:39:29.910 --> 00:39:33.780
or can they build based on the fact that Condition S says,
880
00:39:33.780 --> 00:39:36.060
they're gonna have to mitigate it afterwards?
881
00:39:36.060 --> 00:39:37.485
No, the project proponent is gonna have
882
00:39:37.485 --> 00:39:39.420
to satisfy the board that they can meet
883
00:39:39.420 --> 00:39:43.260
the noise policy standard that what, you know,
884
00:39:43.260 --> 00:39:45.120
the 10 decibels or the eight decibels.
885
00:39:45.120 --> 00:39:46.140
Before they start to build?
886
00:39:46.140 --> 00:39:46.973
Before they start.
887
00:39:46.973 --> 00:39:49.050
They'll be required to take additional mitigation,
888
00:39:49.050 --> 00:39:50.130
measures, and steps.
889
00:39:50.130 --> 00:39:52.590
And it built into the,
890
00:39:52.590 --> 00:39:54.030
when you get to the part of the decision
891
00:39:54.030 --> 00:39:55.470
where the conditions are contained.
892
00:39:55.470 --> 00:39:56.820
Right after Condition S,
893
00:39:56.820 --> 00:39:58.470
there is the very standard language
894
00:39:58.470 --> 00:40:01.440
that goes in to the Siting Board decisions that says
895
00:40:01.440 --> 00:40:03.930
that at all times, the project proponent
896
00:40:03.930 --> 00:40:06.335
has the burden of completely complying
897
00:40:06.335 --> 00:40:09.360
with what they've told the Siting Board
898
00:40:09.360 --> 00:40:10.860
that they are going to do.
899
00:40:10.860 --> 00:40:12.450
So here, they have made the-
900
00:40:12.450 --> 00:40:15.790
That includes results as well as the construction itself.
901
00:40:15.790 --> 00:40:19.200
When they say that it's gonna have a mitigating,
902
00:40:19.200 --> 00:40:21.660
it's gonna mitigate to 10,
903
00:40:21.660 --> 00:40:24.120
that include, that's part of the project.
904
00:40:24.120 --> 00:40:26.910
That it's not just that they're gonna build it exactly
905
00:40:26.910 --> 00:40:29.340
as they did with these specs and these things,
906
00:40:29.340 --> 00:40:31.860
but they have to achieve the result as well.
907
00:40:31.860 --> 00:40:32.693
Right.
908
00:40:32.693 --> 00:40:35.610
And here, when you look at the board's decision,
909
00:40:35.610 --> 00:40:38.250
they do believe that they are going to meet
910
00:40:38.250 --> 00:40:39.750
this eight decibel level.
911
00:40:39.750 --> 00:40:43.130
However, just to be, you know, completely...
912
00:40:44.317 --> 00:40:45.150
[Justice Wendlandt] Candid?
913
00:40:45.150 --> 00:40:48.450
Candid and provide process to the abutter.
914
00:40:48.450 --> 00:40:49.800
They've built in this condition
915
00:40:49.800 --> 00:40:51.810
with these additional steps to make sure
916
00:40:51.810 --> 00:40:55.860
that the eight decibel levels actually being met,
917
00:40:55.860 --> 00:40:57.540
both before construction starts,
918
00:40:57.540 --> 00:41:00.330
and definitely after construction is completed,
919
00:41:00.330 --> 00:41:02.790
and you got the thing cranked up as high as it can go
920
00:41:02.790 --> 00:41:04.560
to make sure that that level is met.
921
00:41:04.560 --> 00:41:06.193
I wanna make sure.
922
00:41:06.193 --> 00:41:10.080
I wanna make sure that we are talking about 8 dB here,
923
00:41:10.080 --> 00:41:11.820
not simply 10 dB.
924
00:41:11.820 --> 00:41:13.105
Correct?
About 8 dB.
925
00:41:13.105 --> 00:41:14.040
[Justice Wolohojian] 8 dB.
926
00:41:14.040 --> 00:41:15.090
Yeah.
Everyone's clear
927
00:41:15.090 --> 00:41:17.430
that that's what Condition S requires.
928
00:41:17.430 --> 00:41:18.360
That's what the project
929
00:41:18.360 --> 00:41:19.290
proponent indicated.
930
00:41:19.290 --> 00:41:20.123
Okay.
931
00:41:20.123 --> 00:41:21.573
They could get the equipment too.
932
00:41:22.620 --> 00:41:24.143
And in at page two.
933
00:41:24.143 --> 00:41:26.250
[Justice Wendlandt] And so that's what's required.
934
00:41:26.250 --> 00:41:27.330
Just to finish your sentence?
935
00:41:27.330 --> 00:41:28.473
Yes, it is.
Okay, thank you.
936
00:41:28.473 --> 00:41:29.457
Sorry.
937
00:41:29.457 --> 00:41:31.925
And just on page 244,
938
00:41:31.925 --> 00:41:34.790
after Condition S in the Siting Board's decision,
939
00:41:34.790 --> 00:41:37.980
it says specifically, "The findings in this decision are
940
00:41:37.980 --> 00:41:39.210
based upon the record.
941
00:41:39.210 --> 00:41:40.710
In this case, a project proponent has
942
00:41:40.710 --> 00:41:43.080
the absolute obligation to construct
943
00:41:43.080 --> 00:41:46.110
and operate its facility in conformance
944
00:41:46.110 --> 00:41:48.810
with all aspects of the proposal is presented
945
00:41:48.810 --> 00:41:49.860
to the Siting Board."
946
00:41:49.860 --> 00:41:50.880
So it sounds like
947
00:41:50.880 --> 00:41:52.780
what you're telling this court is that
948
00:41:53.670 --> 00:41:56.163
Ms. Johnson doesn't have anything to worry about.
949
00:41:57.150 --> 00:41:58.440
She's expressly built in.
950
00:41:58.440 --> 00:42:01.540
Exactly, Your Honor, she's expressly built into Condition S
951
00:42:03.270 --> 00:42:06.303
and her concerns will be addressed by the Siting Board.
952
00:42:08.310 --> 00:42:09.951
Okay.
953
00:42:09.951 --> 00:42:11.151
Thank you.
Thank you.