Falmouth Turbine Court Records Show Violations ARRA Loan

MassDEP Commissioner -Falmouth ARRA Loan Default 5 million

Turbines shut down by court 2017 COMMONWEALTH OF MASSACHUSETTS
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Court record note 6

BARNSTABLE, ss
SUPERIOR COURT CIVIL
ACTION NO. BACV2013-00281

November 2013

TOWN OF FALMOUTH vs. TOWN OF FALMOUTH ZONING BOARD OF APPEALS & others1

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION

Note 6

The Mass. Water Pollution Abatement Trust grant/loan of approximately five million dollars that financed the 6 construction of Wind 2 may well be found to require that the turbines remain operational, but definitely does not expressly dictate hours of operation or electricity production minimums.

The Mass. DEP Commissioner has opined that either a complete shut down or operation of the turbines “only for a very limited period of time each day” would result in a violation of the American Recovery and Reinvestment Act of 2009's requirement that the turbines be operated as an “energy efficiency” project, as defined by the U.S. EPA Office of Water.

See Exhibit D3; EPA
Memorandum March 2, 2009, Award of Capitalization Grants with Funds Appropriated by P.L. 111-5, the “American Recovery and Reinvestment Act of 2009”, Appendix 7, p. 43 (“Energy efficiency is the use of improved technologies and practices to reduce the energy consumption of water quality projects, including projects to reduce energy consumption or produce clean energy used by a treatment works . . . Producing clean power for . . . the treatment works on-site [such as] wind [power]”).

There is a substantial risk that the DEP's opinion that operation of the turbines for only few minutes per day, as a pretext to evade a prohibition on total shut down, would not constitute an energy efficiency project as described in the EPA Memorandum, will prevail in any future contract enforcement action.

However, the court concludes that there is little risk that turbines operating on a non-pretextual reduced schedule would be found to not constitute an energy efficiency project for the purposes of the ARRA as the turbines currently produce substantially more electricity than is required to power the WWTF. Even on a reduced schedule, the turbines would likely supply most, if not all, of the WWTF's power needs.

The terms of the loan/grant and the EPA guideline referenced in the DEP’s opinion letter both concern the use of clean energy for water quality
projects.

The reasonable conclusion is that a determination of 'efficiency' is tied solely to the WTTF's energy needs, not the wider potential for clean energy production by the turbines themselves that the Town may have expected.

Thus, the record does not support a likelihood of default and acceleration of the five million dollars Trust loan/grant due to a reduced operating schedule.

https://waubrafoundation.org.au/wp-content/uploads/2013/11/11-22-13-FalmouthZBApreliminaryinjunctiondecisionandorder.pdf

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# Notes past history :

MassDEP brokered a 5 million dollar loan to purchase the Town of Falmouth second wind turbine # 2

The federal requirement regulations called the project regulatory agreement requires the wind turbine to remain energy efficient. If the turbine stops working the 5 million is due plus interest and repayable to the State Revolving Fund managed by the Massachusetts Clean Water Trust

The money was provided by the federal government through the American Recovery and Reinvestment Act of 2009 (ARRA) which requires to buy Americans and use American workers

To buy the foreign-made second V-82 wind turbine the town filed a request for an EPA federal waiver to buy the wind turbine.

The town in the federal EPA waiver said there were no Domestic wind turbines available but in all actuality, General Electric a domestic wind turbine company refused due to residential setbacks and ice throw to a nearby highway.

In the waiver, the town said they had a wind turbine bylaw 240-166 for the installation of the wind turbine but never filed the permit for either wind turbines resulting in the Falmouth zoning board to refuse to issue the permits after the installations.

ARRA funds cannot be used if they create "a substantial and specific danger to public health or safety related to the implementation or use of covered funds"

The courts through multiple litigations shut down both turbines one and two between 2013 and forever in 2017.

The Falmouth Select Board and Town Meeting voted 2.5 million in November 2019 to remove the turbines.

The balance 3.5 million is due plus interest