Could Kingston's turbine flicker regs set precedent?

Town Counsel Talerman stressed the difficulty of creating a precedent by adopting its own flicker regulation in a state where flicker regulations are lacking.

KINGSTON – Town Counsel Jay Talerman has been advising the Board of Health during its last two meetings on options for creating a wind turbine flicker regulation.

Talerman has been directed to draft a regulation that sets limits on the amount of flicker allowed and establishes a hearing process for residents’ complaints. The Board of Health would review complaints and decide on courses of enforcement action.

As a board of health, Talerman said, its focus should be on regulating flicker as a nuisance affecting public health. Once a structure is in place, he said, the board can make the harder calls, including a number limit on how much flicker is allowable.

Talerman also stressed the difficulty of creating a precedent by adopting its own flicker regulation in a state where flicker regulations are lacking. He said the state does not consider flicker to be a health concern and does not know whether the regulation would stand up in court.

Curtailment or prohibition of prospective turbines from certain districts is not his concern, Talerman said. It’s applying the regulation retroactively to the Kingston Wind Independence turbine on the town landfill and the three No Fossil Fuel turbines on Marion Drive.

“The question I have, Jack (board member Breen), is whether or not by doing a regulation we are looking at getting sued by someone who is existing,” he said.

Board of Health member Toni Cushman said the board must keep the discussion going on a regulation that can be applied retroactively because of the importance of protecting residents from the nuisance that is flicker. Board member Bill Watson agreed that the purpose of the regulation is to mitigate a nuisance.

Talerman said determining what constitutes a nuisance can be a challenge. A nuisance affecting public health could include sleep deprivation or headaches but not enjoyment of one’s home. He said that would be a planning issue.

The board will continue despite a warning from No Fossil Fuel founder Mary O’Donnell’s attorney, Jack Yunits, that the town would likely be sued if it adopts a regulation retroactively. KWI is similarly against such a regulation.

Yunits said there is no correlation between flicker and health impact and if it were a nuisance would not affect everyone the same way. Additionally, he said, according to state law a legitimately licensed turbine can’t be a nuisance.

“Flicker is part of the turbine business,” he said. “It’s hand and glove.”

Yunits also argued that such a regulation puts the health agent in a difficult position because of the challenge of enforcing the limit on flicker.
Previous questions about ethics conflicts appear to have been answered after three board members had concerns about the appearance of conflict.

Although Watson’s property was originally included in the flicker study area, it was not part of the final study, and as such he has no financial interest. Chairman Joe Casna needed to disclose that he knows the O’Donnell family.

A preliminary report on the results of an acoustical study of the Independence turbine has not yet been released. The state Department of Environmental Protection released the following statement Tuesday. It does not include when the report might be available.

“Extensive data concerning the acoustic monitoring for the Kingston Wind Independence wind turbine is currently being compiled, analyzed and reviewed by the consulting firm Harris, Miller, Miller, and Hanson, Inc. (HMMH), which is performing the study for MassCEC (Massachusetts Clean Energy Center) and MassDEP (Massachusetts Department of Environmental Protection). After completion of this work by HMMH, the draft report will be reviewed by MassCEC and MassDEP prior to being issued to the public.”