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60 neighbors sue NY wind farm operators for negligence, nuisance, liability

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Sixty people who live within a mile of the Hardscrabble Wind Farm in Herkimer County, NY, have sued the operators of a 37-turbine wind farm that began operating in early 2011.  Initial press reports suggest that the suit does not aim to shut the wind farm down, but to receive damages payments based on a litany of specific impacts, ranging from noise-induced headaches and sleep disruption to reduced productivity of livestock.  

The complaint as filed is available here, which details the specific impacts claimed by each plaintiff; many include loss of enjoyment of outside activities on their land, and inability to open windows due to noise; some include loss of income due to noise (including as a voice teacher), and some note behavior changes in domestic and wild animals (one notes that bear, deer, turkeys, and grouse no longer frequent his land).  No specific damage amount is requested.

It’s likely that any attempt to shut the wind farm down would be difficult if not impossible, since the project is operating under validly obtained permits.  In recent months, Iberdrola, which manufactured the turbines in the Hardscrabble project, has been experimenting with a new Noise Reduction System after noise monitoring indicated that the turbines occasionally broke the 50dB town noise limit.

Hardscrabble with farm copyI don’t like to say “I told you so,” but this AEInews post from autumn 2011, published after the first public complaints about noise at Hardscrabble, is well worth re-reading, as it includes a lot of detail about the sound levels projected in the project’s planning documents.  As I noted there, this is just the sort of project that has become more problematic in recent years, “aiming to thread a very difficult needle, as they site turbines amongst hundreds of home sites, using noise standards that are pushing the edges of what is tolerable to residents who value the local peace and quiet.”  While local noise standards allow turbines to be up to 50dB at homes, what stood out here was the noise contour maps, which showed over a hundred homes in the 40-45dB zone, and quite a few more in the 45-50dB zone (about half of these close homes were host families).  As it turns out, it seems that here, as elsewhere, a significant proportion of those hearing the turbines at around 40dB are indeed being bothered by the noise.  This is becoming a recurring theme at wind farms in the northeast (including Ontario) and the upper midwest, as well as in Australia and New Zealand.  The root of the problem is that noise levels long widely accepted as tolerable for other sources of community noise are triggering complaints in a significant minority of residents near wind farms.  As wind farms move from wide-open spaces of the west and into closer proximity with large numbers of rural homeowners, noise issues are on the rise (though still not occurring at many wind farms, and likewise, not bothering everyone even where problems arise).

As longtime, very mainstream, acoustical consultant David Hessler recently noted, in a Best Practices document compiled for the National Association of Regulatory Utility Commissioners, “the threshold between what it is normally regarded as acceptable noise from a project and what is unacceptable to some is a project sound level that falls in a gray area ranging from about 35 to 45 dBA (Ldn: full 24-hr average sound level).  Citing the classic Pedersen, et al studies, he notes “relatively high annoyance rates of around 20 to 25%” among residents living in areas with project sound of 40-45dB.  He thus currently recommends a mean (Ldn) sound level of 40dB at residences in most cases, or 45dB “as long as the number of homes within the 40 to 45 dBA range is relatively small.” (For more on this Hessler guidelines document, see AEI’s overview of low-frequency noise research, available here)  While Hessler’s approach may have helped at Hardscrabble, we don’t have solid information on what the full day-long average sound levels have been there.  Neither the noise modeling beforehand or press reports of the post-construction monitoring include the averaging time used; with the monitoring finding the project generally under 50dB, it’s possible that daylong averages, including times when the wind isn’t blowing, were below 45db, or possibly even 40dB.  In any case, those recommendations were published nearly a year after Hardscrabble began operating, and two years after the final acoustical assessments were completed.

Since the new lawsuit is apparently aiming to collect damages from the wind farm owners, rather than challenging the project’s operating permits, it takes a line of attack that’s hard for me to get behind, because of its need to show negligence. Instead of distracting this post with thoughts on this, I’ve just posted an extended commentary in which I address this question of negligence within the context of the fundamental and widespread reassessment of the noise impacts of wind farms that is underway within the industry, the acoustical engineering community, and the public.  

 

5 Responses to “60 neighbors sue NY wind farm operators for negligence, nuisance, liability”

  1. Rural Realist Says:

    After reading this article as well as this one, http://aeinews.org/archives/2127?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+aeinews+%28aeinews.org%29
    it becomes very clear why the Hardscabble neighbors are suing.
    When Wind farms were initially constructed instead of long testing and devising specific standards, a general industrial IESO standard was used. Computer noise modelling based on and masking theories did not reflect reality. Then, instead of seriously investigating complaints, these people were ridiculed.
    When one considers a rural area where background noise levels are in the range of 20-25 dBa, then imposes a constant increased level of 40-45-50 and even above on a 24/7 365 days per year why would there not be complaints.

    Yet here the article is still only mentioning the dBa level of sound. I refer to the work of Steven Cooper, Acoustician in Australia and recently on Wind Wise Radio. “Peer Review of Environmental Noise Assessment” Cooper,Marshall Day Peer Review, ISSN 1463-1741 Nissenbaum, Arami & Hanning, and even the McPherson report, Ambrose and Rand.
    The LFN and Infra sound factors are not even mentioned here. It is these that are proving most troubling and are part of the unique signature of wind turbines noted as travelling over long distances, recorded as far as 8km away from turbines.
    Current standards are inadequate, as is most instrumentation used for measuring ranges of 0-50 hz.
    The continued propagation of wind projects in light of this research compares to a drug company allowed to continue marketing a drug proven to have harmful side effects without warnings and giving the choice refusal of use if such harm is applicable.
    Failure of issuing or even recognition of warnings by the wind industry who continue to be in total denial of any health effects in light of emerging research and of government official to declare a moratorium on new construction until gaps in current standards can be filled is negligent.

    When the industry and government officials refuse to address these issues then perhaps the courts are the last refuge of hearing. As the case of tobacco where industry steadfastly denied claims of harm, in the end class action suits were won and damages assessed.

  2. aeinews Says:

    See http://aeinews.org/archives/1711 for AEI’s most recent overview of low frequency and infrasound research. If you review that, and AEI’s other in-depth coverage of wind farm noise issues over the past several years (see http://www.acousticecology.org/wind/ ), you’ll see that I stress that turbines do indeed have a lot of sound energy in the low frequency and infrasound range, and that the innovative research by acousticians who are digging deeply to try to understand why turbines are triggering higher-than-expected negative responses (Bray/James, Thorne, Ambrose/Rand, etc) is pointing in some important directions for continued study (and replication).

    Still, it’s my sense that moving the public policy debate into discussion of infrasound (and also to health effects) will serve only to make it more difficult to marshall the solid proof needed to justify changes of siting policy that reflect the differences between communities’ noise tolerance and interest in hosting industrial wind facilities. Instead, I focus on the intrusive aspects of audible sound, much as you stress in the first paragraph of your comment. I continue to feel that if we adjust noise limits/setbacks to assure that audible turbine noise is not significantly louder than night time ambient, then this will also reduce whatever low frequency/infrasound/health effects may be occurring.

    This is partly a reflection of my background in classic acoustic ecology, which is very much about how people relate to their local soundscapes, and thus the focus on audible sound as that which we are living with and responding to. And it’s partly in recognition that the audible noise annoyance rates (and negative impacts on local sense of place/home) around wind farms are higher than the rates of people having sleep issues and much higher than the rates of possible infrasound-related health effects; I feel that making the case for avoiding annoyance and degraded rural lifestyle in a large number of people is a better path than trying to prove health effects or infrasound impacts in a relatively few (even if those few are arguably more severely affected). In addition, I can’t help noticing that infrasound/health effects don’t occur everywhere (eg ranch and farmland hosts), so it remains a strong possibility that stress is at the root of many or most of these effects (which doesn’t negate their importance, but puts them in a different perspective, vis a vis regulatory imperative).

    At the same time, as I think the commentary made clear, I do understand the sentiment in your final paragraph. I know wind neighbors whose lives have been upended, who are incredibly frustrated at the lack of appreciation for what they’re going through, and have lost faith in working with “authorities” to come to a mutually workable solution. Still, my path is one of trying to bridge these divides.

  3. Dan Wrightman Says:

    I have noted on several of your posts that you assert ranchers and farmland hosts have less annoyance from wind turbines. Is this assertion drawn from personal observation or is there data or a study to back this up? It doesn’t match the personal observations I have noted with farmers and homewoners living with wind turbines in Ontario. The only study I can think of with data is the often misconstrued 2008 Vandenberg /Pederson study where it was found that landowners that benefited financially from wind turbines were less annoyed by wind turbine noise than those that did not. This was not because money makes the annoyance goes away as so many wind industry proponents claim but beacause Netherlands landowners have greater control over their noise environment. In the Netherlands farmers commonly own & operate their own wind turbines whereas in North America they are operated by multinationals from remote controlrooms in Texas or California .From the Vandenberg Pederson survey: “Respondents that benefit will more usually have control: most or all of them have taken part in the decision to put up the turbines and they can stop them if they want. One respondent remarked that if a turbine close by caused too much noise for him or his neighbour, he stopped the turbine.” That doesn’t happen where I live in Ontario, we have no local control of sound and their are many farmers complaining of noise and health issues.

  4. aeinews Says:

    Dan,
    We’re sorely lacking in solid annoyance surveys of nearby neighbors in a wide range of locations; there are just a few (I’ll be summarizing them in my “almost done” annual wind farm noise report), and they all point to high annoyance rates (25-50%, some higher) within a half mile to mile. Some of them included hosts who don’t like the sound or wish they could make a different decision. Yet, naturally enough, these surveys have all taken place in towns where there was a relatively big outcry, and there was a perceived need to quantify how widespread it was.

    My common refrain that there seem to be fewer issues in farm and ranch country is, therefore, not backed up by studies. It’s based on years of tracking complaints via the media (directly in my own google news alerts, and via the two primary compilers of wind media reports), and seeing how few come from Texas, Oklahoma, Kansas, Nebraska, etc, where there are lots of active windfarms and very few noise complaints (not none, but clearly not 25% of those living nearby, either). “Ranchers” is more solid for me to say than “farmers”, because of the ways that more populated farm country like Wisconsin, Ontario, New York has had more issues; I’m still using it as shorthand because of the many more industrial-scale farmers in Iowa, Kansas, etc, who are living with turbines without the level of problems we see in other types of more mixed communities back east in in the upper midwest. I quantified some of this a year or two ago, but a recent version of the same point is that in the first 9 months of 2012, 77 wind projects (4,055 MW) came on line in the US. That comes to a 52MW average, so plenty of these are big. We certainly haven’t seen a major outcry about noise in most of these. I won’t venture to say how many new wind farms this year have triggered issues, but it’s relatively few. (I don’t doubt some people near other wind farms are upset, but if so, we’re not hearing about it; I know there are reasons people stay quiet, but if it were as bad as in the hotspots we know of, we’d hear about it.)

    I know this way of thinking about it upsets a lot of people. But the apparent reality is that, by and large, ranchers don’t consider turbines all that noisy compared to what they’re used to. (I also suspect that the noise is flat ranch country is less intrusive, thanks to more consistent winds and less inflow turbulence.) There certainly are some turbines hosts who have regretted their decisions, likely more than the few who make that known. But if the issues were anywhere near as bad as they are in the places we all know about (ie half of those within a half mile, which would mean most hosts, really hating the sound), we’d hear more about it. And I know that’ll trigger a comment or two about gag orders, but all the leases I’ve seen had confidentiality clauses only about financial and/or site planning details, not on what you say in public–except for a couple tied to homes bought by wind companies close to turbines and sold with explicit “as is” regarding noise, and those were more about waiving any right to make a legal claim about noise/health, rather than talking. (The big exception, of course, is the few/several lawsuit settlements in which the terms have been kept secret, which is unfortunate and counterproductive to public knowledge/understanding, in my view. This happened in Mars Hill and with the Davis claim in the UK, at least.)

    And just to be clear, for anyone who hasn’t read widely on this site: just because I believe wind works fine for most ranchers and in the wide-open spaces of the west, doesn’t mean I’m implying or saying that those with noise issues should suck it up and live with it. Not in the least. I know how bad it can be, and I sure wouldn’t want turbines on the ridge a quarter to third of a mile above the houses in my little valley–I know how deeply disruptive they’d be. But just because wind farm noise is ruining lives in the places we all know about, doesn’t mean wind development is inappropriate everywhere. Recognizing that different communities have different tolerance/interest levels around industrial wind is, I think, something both the industry and some of the community activists need to open their minds to. It’s just part of what I see when I look around the country.

  5. Stephen E. Ambrose Says:

    I respectfully agree with the plight of the Hardscrabble wind turbine neighbors. There is clear and convincing evidence worldwide, that wind turbines located in quiet areas will cause adverse public health impacts. I am disappointed that AE chose to quote an advocate who promotes installing wind turbines in rural environments without an adequate separation distance from nearby neighbors.
    This wind turbine site should never have been permitted. The New York DEQ has had a very effective noise impact, assessment methodology dating back more than 30 years. Instead, New York has replaced it with a highly flawed pro wind turbine method. This substituted method ignores the “cautionary” warning published in the full version of the EPA “Levels Document” to respect the noise sensitivity for quiet areas. Hence, we should not be surprised that we have a turbine noise problem.
    Quality noise assessments consider the pre-development ambient sound levels without turbines operating and then limit the noise level increase when operating. An ambient nighttime noise level of 30 dBA or less, using the EPA “cautionary” shows that a noise level increase of 5 dB may result in a negative public response as high as “sporadic complaints”, 10 dB increases to ”widespread complaints”, and 15 dB to “threats of legal action”. Neighbors at Hardscrabble are responding as predicted.
    The high degree of public complaints about turbine noise is a good indicator that this noise application is highly flawed. Noise increases need to be limited to a worst-case of “sporadic complaints”. Hardscrabble is experiencing a much higher level of complaints with 60 “threats of legal action”. Sixty complaints are grossly unacceptable and profoundly indicatives a noise level increase of 15 dB or more. Why is this so hard to understand? We have known how to predict this from 1976.
    All public boards, officials and professional consultants must hold paramount the public health, safety and wellbeing. Most professional organizations have “Canons of Ethics” enacted to protect the public from harm. What went wrong here?
    I support a civil authority interceding on behalf of the neighbors. There is clear and convincing evidence that the public health and welfare is being harmed resulting in their lawsuit. Inaction by public officials is compounding the public health hazard by imposing undue duress by civil authorities. Unless it has determined that for the greater public good, it is proper to condemn wind turbine neighbors to a “public health sacrifice zone”.

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