ENFIELD, NY – In a 15-page letter, an Enfield resident details what she calls a number of “irregularities” in the handling of the proposed Black Oak Wind Farm (BOWF) in Enfield, implicating both Black Oak and the Enfield Town Board.
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Jude Lemke, an Enfield resident who has spoken and written in opposition of the Black Oak before, launched her own investigation into the project. Under the Freedom of Information Law (FOIL), Lemke obtained a number of documents including correspondences between Black Oak, Enfield Town Board members, and consulting companies Haley and Aldrich and LaBella Associates.
In her letter, Lemke makes a number of claims. Primarily, she alleges:
Certain Town Board members and their hired consultants and attorneys have showed an eagerness to accommodate Black Oak that is beyond belief. What is worse, the Town’s handling of this Project has been cloaked in secrecy, which calls into question the ability of our Town Government and its paid contractors to protect their citizens.
I believe that the Town of Enfield has failed to make Black Oak comply with the substantive and procedural requirements of SEQR. Additionally, I believe it is clear that a majority of the Town Board has placed the economic interests of Black Oak ahead of the safety of its citizens.
Some quick notes on terminology: SEQR is the State Environmental Quality Review Act, a state law which requires any project with major environmental impacts to go through a series of approvals. Part of that process is the EIS, or Environmental Impact Statement, which is a detailed documentation of all the potential impacts and possible mitigation.
Lemke’s letter in particular revolves around the DSEIS, the Draft Supplemental Environmental Impact Statement, a supplemental document which was required because Black Oak was making changes to their original proposal.
A complete copy of Lemke’s original letter, as well as a response from Black Oak answering several of Lemke’s claims is included at the bottom of this article.
A summary of some of Lemke’s specific claims and Black Oak’s responses follows:
1 – “Shrouded in secrecy”
Lemke alleges that the Enfield Town Board, Black Oak and their consultants did not maintain proper documentation of their dealings, as required under the SEQR process. She states that after learning about the DSEIS, she requested a copy of the document from the town clerk.
“I was told that BOWF claimed that it was a ‘draft’ so it was not available to the public until the Town Board determined that it was ‘complete,’” Lemke writes. “I was also told that Town Attorney, Guy Krogh, agreed with this opinion, so the Town Clerk could not release it to me.”
Lemke also raised concern over the fact that Krogh had apparently been introduced to the town board by John Rancich, who was the developer behind the original wind farm proposal, which dates back to 2007.
Further, Lemke suggests that the members who voted to accept the DSEIS as complete on Mar. 9 did so without having reviewed the document, since according to board member Michael Miles, the revised document had only just been delivered to him prior to that meeting.
Town Supervisor Ann Rider refuted this claim, saying that she received the document approximately two weeks prior in an email.
In Black Oak’s response letter, they explain:
Our understanding at the time, supported by our attorneys (though not Ms. Lemke’s), was that until a document was approved by the Town Board, it wasn’t available for public review. We were simply following the legal advice of the attorneys. Ms. Lemke did FOIL that unapproved draft document and it was provided to her.
Black Oak also explains that the reason they proposed a changed layout, thus requiring the DSEIS, was in order to accommodate a landowner who no longer wanted to participate in the project. “We were trying to be good neighbors and not force landowners to do things they’ve had a change of heart about,” they wrote.
The SEQR handbook seems to support Black Oak’s side, as it makes no mention of public participation prior to the public comment period, which begins once the agency overseeing the project (in this case, the Enfield Town Board) accepts a draft document as complete.
2 – Under pressure?
Citing a series of communications between BOWF’s consultants, Haley & Aldrich, and the town’s consultants, LaBella Associates, Lemke claims: “BOWF pressured LaBella to expedite its review, and both sets of consultants acted to ensure that the public was not aware of this process.” These consulting agencies are the ones responsible for compiling the DSEIS.
As evidence, Lemke points to a Jan. 21 email where a Haley & Aldrich representative writes to one from LaBella, “We anticipate that this should not take more than 1 week to complete.” A later email, dated Feb. 3, the same Haley & Aldrich rep again urges LaBella to complete the review that week.
Further, several emails between the two consulting agencies note that the comments are informal communications that are not to be shared with the public.
On Mar. 8, a LaBella representative advised Haley & Aldrich that they would support the DSEIS as being complete, despite some concerns writing:
Although I am prepared to conclude that the document is complete for the purpose of commencing public review, some of the issues identified during the review process remain a concern, and I would expect that the project sponsor will address such issues as part of the Final SEIS before that later document is accepted.
“The Draft SEIS remains deficient. Those deficiencies cannot be addressed on faith, as part of a Final SEIS, which involves no further opportunity for public input,” writes Lemke.
Black Oak’s response:
We were indeed trying to expedite the process of getting the document drafted, not because of an expiring tax deadline, but because local people had been clamoring to see the proposed changes, and the only way we knew of to get it to them was to have the Draft SEIS approved as “complete,” which made the document available to the public.
They go on to explain that some of the apparent omissions were technicalities, such as certain tests being performed as part of the original EIS, so LaBella was asking for them again even though they weren’t relevant to the new document.
3 – “Procedural violations”
Lemke’s letter details two “procedural violations” of the SEQR process and the Enfield Wind Law on the part of the town board and Black Oak.
First, she says that the public hearing for the DSEIS, which occured on Mar. 28, was not adequately advertised as required by SEQR and the town’s wind law. A subsequent public hearing was held on Apr. 12.
Town Supervisor Ann Rider indicated that proper procedures had not been followed for the Mar. 28 hearing, and thus it “could have been challenged under SEQRA.” Proper notifications procedures were followed for the Apr. 12 hearing, in order to give people plenty of time to comment. Rider also noted that about 100 people attended the March 28 hearing, and even more attended the one on Apr. 12.
Next, Lemke says that the DSEIS does not make any reference to a possible wind turbine to be sited in Newfield, and Newfield town government did not appear to be properly included in the decision-making process.
In their response, Black Oak says that Newfield has been involved throughout the process, and attorneys from the two towns had been working together to ensure the SEQR process was adhered to. “If nothing else, the recently passed moratorium in Newfield on wind facilities makes it clear they have been duly notified and are actively participating in the process.”
A third issue, which was not mentioned in Lemke’s letter, was brought up by another Enfield resident, Cliff Newhart. Newhart said that during the Apr. 12 public hearing, Black Oak Vice President Marguerite Wells confirmed that Black Oak had begun construction on Turbine 4 without final SEQR approval.
Black Oak president Peter Bardaglio gave this response on the third issue:
For the sake of qualifying for federal tax credits, we did indeed “start construction” from a federal point of view. Digging a hole of any size constitutes starting construction for the sole purpose of qualifying for tax credits. However, we very carefully dug only the minimum size hole we thought would genuinely qualify us for the tax credit and at the same time allow us to determine whether we needed a blasting plan at the Turbine #4 site.Because we dug a hole without needing a building permit or a SWPPP from DEC (<1 acre disturbance), we were not, to our understanding, in violation of any local laws. The Town of Enfield code office agrees with us on that point and we doubled checked with the DEC. What seems to be overlooked is we did not engage in any more “construction” beyond this.
4 – Questions of ownership
Lemke also calls into question who will ultimately own the project. Correspondences dating back to Sep. 2015 indicate that BOWF requested a transfer of its Payment-In-Lieu of Taxes (PILOT) agreement and tax abatement to a “new owner” called Onyx Black Oak Wind, LLC.
The transfer, which was going to be considered by the Tompkins County Industrial Development Agency (IDA), was later delayed and has not been revisited. A correspondence from Black Oak to the IDA reads:
After conferring a bit further with my board and Onyx, I think it would be better to put our PILOT revision off until the October meeting if possible, as we have been holding off making the info public (even to our investors) until after the deal closes on the 29th. I had forgotten how public the IDA meeting agenda would be. It’s no matter that we’re listed on the agenda on the website, if it stays that’s ok, we can still forego actual public discussion of the details until after deal closure. Is that workable?
Lemke references Onyx in her previous letter to The Voice, claiming that Wall Street investment firms like Onyx use wind farms as tax shelters thanks to the tax credits and abatements the government uses to subsidize renewable energy projects.
5 – Old arguments, revisited
Lemke also revisits arguments about setbacks, noise levels, shadow flicker and property value that have been discussed at some length in Enfield meetings and in The Voice’s previous coverage.
We recommend reading Jude Lemke’s full letter and Black Oak’s response below to get a complete picture of both sides of these issues.
An issue that the Voice — as well as critics of the wind farm — have pointed in the past is that at many public hearings on the topic, the people speaking in favor of the wind farm have often been people from other parts of Tompkins, many of them investors in the project. Meanwhile, most of the opponents have been Enfield residents.
Black Oak President Peter Bardaglio maintains that this isn’t representative of the town’s true level of support. “The fact is that our supporters in Enfield far outnumber our detractors,” he says.
As evidence, Bardaglio explains that a volunteer group recently submitted a petition urging the Enfield Town Board to swiftly review and approve the changes set out in the Draft Supplemental Environmental Impact Statement was signed by 410 Enfield residents. For context, Enfield’s population is approximately 3,500 people and roughly 300 people voted in the 2015 town elections.
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