Some books are to be tasted, others to be swallowed, and some few to be chewed and digested; that is, some books are to be read only in parts; others to be read, but not curiously; and some few to be read wholly, and with diligence and attention. Some books also may be read by deputy, and extracts made of them by others; but that would be only in the less important arguments…
~ Sir Francis Bacon, “Of Studies”
The important issue related to sound in the Lowell wind case is whether the standard that the Public Service Board has used in past wind cases, 45 decibels (dB) at the outside of a dwelling, averaged over an hour, is sufficient to protect the health and well-being of local residents. This is something that Board member John Burke said the Board struggles with, and I can see why. It’s a complicated issue.
I wish that Green Mountain Power would use its communications resources to further Vermonters’ understanding of the science around the question of what standard is protective, and why. Instead, the company provides experts who testify to the Board that the 45 dB standard is adequate, while the company’s PR staff merely assure the public that GMP will obey the (legally enforceable) standards set by the PSB.
Dorothy Schnure disputes my characterization of how poorly buttressed the testimony was from one of GMP’s sound experts. Very well, then, let’s get into the weeds.
In his November 22, 2010 prefiled, written testimony, Robert McCunney gives the following answer to a question:
Q. Please discuss the minimum level of sound that has been associated with adverse health effects on humans.
A. The risk of any direct adverse health effect at levels below 45dB (A) is virtually non-existent (Miedema, Passchier-Vermeer and Vos 2003, Elements for a position paper on night time transportation noise and sleep disturbance TNO Inro, Delft, 2002-59).
The form of McCunney’s answer is academic shorthand for saying that he has read the Miedema et. al. 2003 paper and that it contains the robust conclusion that “the risk of any direct adverse health effect at levels below 45dB (A) is virtually non-existent.”
The safety of the 45 dB threshold is an important argument, perhaps the key argument, in McCunney’s testimony. To use Bacon’s language, this is not the sort of paper to be read by deputies and to allow extracts to be made of them by others. This is the sort of paper to read oneself, with diligence and attention.
Yet when Jared Margolis cross-examined McCunney, McCunney would not talk in detail about the Miedema paper. Rather, he referred repeatedly to a WHO report that cited the Miedema paper. The following exchange is just one example:
Margolis: And is this the Miedema paper that you cited to (sic) in your responses that we just read?
McCunney: Yes. This is the paper that was cited by the WHO in their 2009 document from which I drew the conclusion that you just stated.
If it was merely the case that McCunney had cited a primary source (the Miedema paper) when he had only read a secondary source (the WHO report) that, in turn, had cited the primary source, it would have been a minor sin in academia. (I don’t know what view courts take of this in sworn testimony.) However, the Miedema paper does not appear to contain the conclusion McCunney attributes to it. Margolis pointed that out, and McCunney could not refute it. (I looked at the Miedema paper and didn’t find the statement, either.) Here’s part of that exchange:
Margolis: And you can’t point to anywhere in this paper [Miedema et al. 2003] where it actually says there are no health impacts below 45 decibels?
McCunney: I can’t recall as I sit here as I go through 62 pages where precisely that comment might be.
Margolis: Do you agree that comment might not be in here at all?
McCunney: I mean it’s possible, but the World Health Organization obviously took a careful look at this paper and used it as the basis for their conclusion which I used.
Margolis: Did you take a careful look at this paper?
McCunney: I went through the paper, but I primarily focused on the WHO paper, and the WHO cited this as the basis of their conclusions, and that was good enough for me.
McCunney may have “gone through” the paper, or “tasted” it in Bacon’s language. But if he had really read it, why did his written testimony make a key claim to the Public Service Board about its content that apparently was false? I drew the conclusion that he was sincere in his oral testimony that he had based his conclusion on a WHO paper that cited Miedema. (In response to a discovery question, McCunney added the WHO report to the Miedema paper as a source for his conclusion — but he was still making the apparently false claim that the Miedema paper concludes that the 45 dB threshold is protective of human health.)
It was this last exchange on which I based the reporting that Schnure objects to, “Green Mountain Power’s noise expert admitted under questioning that he hadn’t read the study on which he based his main conclusion.” McCunney had shown a general unfamiliarity with the Miedema paper in his testimony, he was caught attributing a claim to a paper that the paper apparently didn’t make, and he declined to answer “yes” when asked whether he had looked carefully at the paper. Instead, he changed the subject to the WHO paper. I read that exchange as an admission he hadn’t read the Miedema paper. Perhaps “tacitly admitted” would have been more precise.
On the other hand, it’s possible that I interpreted McCunney’s testimony too charitably, and that he did read the Miedema paper carefully but deliberately misrepresented its contents while under oath. I gave McCunney the benefit of the doubt.
Carl Etnier
March 9, 2011
