American Recovery and Reinvestment Act funds can not be used if they create: "a substantial and specific danger to public health or safety."
Falmouth Massachusetts USA
Andrew R. Wheeler is the Administrator of the United States federal government's Environmental Protection Agency.
EPA is an agency of the United States federal government whose mission is to protect human and environmental health.
American Recovery and Reinvestment Act of 2009 funds were used to buy American and put Americans to work.
By April 27, 2010, the Town of Falmouth, Massachusetts received a federal EPA waiver to buy a foreign-made wind turbine:
"Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Town of Falmouth, MA
A Notice by the Environmental Protection Agency on 04/27/2010"
The federal EPA waiver should never have been allowed. The town omitted all negative documents from the EPA waiver application.
General Electric a domestic wind turbine company refused to place one commercial wind turbine due to residential setbacks and ice throw to a nearby highway. The waiver says a domestic wind turbine is not available but left out the reason GE refused over safety, health and residential property setbacks.
The EPA waiver was for a second town-owned foreign-made wind turbine. Each foreign turbine generates 110 decibels of noise. There was no study for how loud two foreign wind turbines operating at the same time generates.
The EPA was never told in the waiver the Town of Falmouth had been warned in writing prior to construction by the foreign-made wind turbine company the turbines generate 110 decibels of noise each.
The EPA waiver states the town had a bylaw 240-166 to install the wind turbine but never filed the permits Filing the permits would have required additional notifications to neighbors through the Zoning Board of Appeals in which case the turbines would never have been built.
The Town of Falmouth had a study done in 2005 by KEMA Inc prior to construction that showed the installation of these 110-decibel foreign-made turbines would destroy the lives of up to 200 residential homeowners.
In June of 2017 after as many as eleven lawsuits the Massachusetts courts shut down both nuisance wind turbines. They remain shut down today.
Five million in American Recovery and Reinvestment Act funds were used as a loan to build Falmouth Wind II the second of two commercial wind turbines.
The federal EPA waiver opened the door to the misuse of ARRA stimulus funds building the second Falmouth wind turbine.
The Massachusetts Department of Environmental Protection brokered a loan between the Town of Falmouth and the Massachusetts Clean Water Trust using ARRA funds deposited in the Massachusetts State Revolving Fund. The Massachusetts Clean Water Trust and MassDEP provided the PRA, project regulatory agreement.
The project regulatory agreement states the 5 million has to be paid back plus 2 percent interest if the turbine stops producing energy. The turbines shut down in 2017. The loan not paid back.
The 5 million loan should have to go back to the Mass State Revolving Fund as it is designed as a revolving fund to reuse cash for other Green Energy projects.
Outside legal counsel has advised the Town of Falmouth that Wind II is subject to specific provisions of ARRA and applicable federal regulations and guidelines ("Federal Law') in addition to the terms and conditions of the Project Regulatory Agreement ("PRA") and the Loan Agreement associated with the funding of Wind II.
Under Federal Law and the PRA and Loan Agreement, the Town must maintain Wind II as an "energy efficiency" project, as described in EPA guidelines dated March 2, 2009, in order to benefit from the financial subsidy provided by the Trust under ARRA and the Trust's Clean Water State Revolving Fund program.
Federal regulations governing the Trust's ARRA grant at 40 CRF Part 31.30(d) (1),
This letter to Falmouth Town Manager Julian Suso is proof :
Julian M. Suso, Town Manager Town Hall 59 Town Hall Square Falmouth, MA 02540
Dear Mr. Suso,
This letter follows up on the telephone call by Commissioner Kenneth Kimmell, of the Department of Environmental Protection ("DEP'), to Julian Suso, the Town Manager of Falmouth, Massachusetts (the "Town') on Friday, March 29, 2013 concerning the Wind Turbine project at the Town's waste water treatment facility ("Wind II") that was funded with moneys provided through the American Recovery and Reinvestment Act of 2009 ("ARRA").
As the Commissioner indicated in that call, DEP and the Water Pollution Abatement Trust (the "Trust") cannot unconditionally approve the Project Completion Certificate submitted by the Town to DEP on March 14, 2013 for Wind II if it has reason to believe that Wind II may cease operations.
Outside legal counsel has advised that Wind II is subject to specific provisions of ARRA and applicable federal regulations and guidelines ("Federal Law') in addition to the terms and conditions of the Project Regulatory Agreement ("PRA") and the Loan Agreement associated with the funding of Wind II, Under Federal Law and the PRA and Loan Agreement, the Town must maintain Wind II as an "energy efficiency" project, as described in EPA guidelines dated March 2, 2009, in order to benefit from the financial subsidy provided by the Trust under ARRA and the Trust's Clean Water State Revolving Fund program.
Under federal regulations governing the Trust's ARRA grant at 40 CRF Part 31.30(d) (1), if the Town chooses to change the scope or objectives for Wind II in any significant manner, the Town will have to request the Trust's prior written approval.
If the change is such that Wind II continues to be used in a manner that is consistent with an "energy efficiency" project, the Trust will be able to approve such a change. But if the change would result in Wind II being used in a manner that is not consistent with an "energy efficiency" project (for example either ceasing operations or curtailing them to the extent that Wind II operates for only a very limited period of time each day), the Trust will not be able to approve the request and the Town will not be allowed to utilize the ARRA funds with principal forgiveness.
Federal regulations at 40 CFR 31.30(1)(3) states that a grantee, such as the Trust, "will not approve any budget or project revision which is inconsistent with the purpose or terms and conditions of the Federal grant to the grantee."
Thus, the Trust's disapproval of such a change is compelled by Federal Law.
Because of the foregoing requirements of Federal Law and actions taken by the Falmouth Board of Selectmen and warrant articles that will be considered by the April 8, 2013 Falmouth Town Meeting, the Trust is requiring that the Town provide it with "fur pursuant to section 20 of the Loan Agreement, as follows:
First, DEP will conduct its normal completion audit in response to the Town's submission of its Project Completion Certificate to DEP;
Second, the Trust will require that the Town enter into an agreement to operate Wind II at a level that permits it to continue to qualify as an "energy efficiency" project in accordance with DEP requirements for the duration of the Loan;
Third, upon the signing of the agreement, the Trust will conditionally forgive principal repayment by waiving the payment of principal and interest under the Note and amending Schedule C to the Loan Agreement accordingly, to be in effect so long as there is no default under the agreement;
Fourth, the agreement will include on-going reporting requirements and auditing procedures with respect to the project to ensure that Wind II continues to operate as an energy efficiency project for the duration of the loan; and
Fifth, in the event that the project ceases to function as an energy efficient project, the Trust will amend Schedule C to reinstate the Town's obligation to pay principal and interest on the Loan and take such other actions as it deems necessary or appropriate to ensure compliance with Federal Law, the PRA, and the Loan Agreement.
If you have any questions regarding the foregoing, please call me at (617)367-9333 x816.
Very truly yours,
Susan E. Perez Executive Director MWPAT
Kenneth L. Kimmell Commissioner MassDEP
(Note # 1 )
(Massachusetts Water Pollution Abatement Trust, MWPAT has changed its name to Massachusetts Clean Water Trust, MCWT. )
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