Judge sides with neighbors in Vinalhaven wind case
Augusta — A judge ruled March 10 that the state's environmental protection commissioner failed to provide evidence or reasoning for weakening the restrictions on noise for a Vinalhaven wind project, adding the commissioner's past work for a firm representing the wind project created mistrust in the community.
Kennebec County Superior Court Justice Micaela Murphy ruled in favor of Fox Island Wind Neighbors, who petitioned the court in 2011, challenging Fox Islands Wind's compliance with noise regulations.
The petitioners said Department of Environmental Protection Commissioner Patricia Aho acted on political motivation when she scaled back noise reduction requirements, acting against the advice of her staff.
In 2010, the DEP issued a formal non-compliance letter to Fox Islands Wind based on a specific complaint lodged by neighbors that on two nights in July, the turbines exceeded the night time sound limit. In 2011, Fox Islands Wind said it would reduce the sound only when meteorological conditions were similar to those on the nights cited, including times when the wind was blowing from the southwest. The department decided the Fox Islands Wind response was inadequate and drafted a counterproposal with provisions to ensure compliance with the noise rule, which Fox Islands Wind objected to.
In June 2011, Aho took over as acting commissioner of the department. She had started working at the department earlier that year after employment as a lobbyist for Pierce Atwood, the firm representing Fox Islands Wind.
Murphy said in her ruling the fact Aho was previously employed by Pierce Atwood or the fact the compliance condition order was issued in terms highly favored to Fox Islands Wind cannot, by themselves, be the basis for finding bias.
However, Murphy said the court recognizes the difficulties created by Aho's continued participation in the matter, in light of her former affiliation with the firm. She said the issue has created an enormous amount of mistrust by the neighbors as to whether their grievances can receive fair treatment by the commissioner and the department.
Aho's participation was called antithetical to the notion of impartiality as expected by state agencies, the ruling said.
The court said the compliance order, issued by Aho 10 days after her appointment as commissioner, does not even attempt to explain the reasoning behind her decision.
The DEP's defense is Aho based her decision on what was certain, as opposed to what is uncertain.
In June 2011, the department issued the order, signed by Aho, that determined Fox Islands Wind complied with a condition of a license to operate a small-scale wind energy project on Vinalhaven. The court concluded there was no evidence supporting Aho's decision to limit the compliance regulation to one wind direction, as other wind directions could have the same adverse effect on noise.
The petitioners asked the court to vacate the order and to replace it with an order drafted by DEP staff. The staff prepared a draft order requiring submission of data and requiring Fox Islands Wind to post operational sound and meteorological data on a website for public review.
The petitioners are Barbara Santa Coloma, Alan Farago, Arthur Farnham, William Haible, William Haley, Art Lindgren and Cheryl Lindgren.
They said the order exposed them to "annoyance, adverse health effects and loss of property value, due to noise from three wind turbines that were dedicated in November 2009."
The petition said that under regulations for a small-scale wind energy development, the Fox Islands Wind Project must include a quiet area, located "where the daytime pre-development ambient hourly sound level at a protected location is equal to or less than 45 decibels and/or the nighttime pre-development ambient hourly sound level is equal to or less than 35 decibels."
In that quiet area, according to the petition, sound levels from the turbines at any parcel of land containing a residence, or up to 500 feet from a residence or sleeping quarters, must be capped at 55 decibels between 7 a.m. and 7 p.m., and at 45 decibels during nighttime hours.
When the data was sent to DEP, the petition claims it was "so incomplete as to be useless except for one day, April 29, 2010, which confirmed noise in excess of regulatory limits." Less than a month later, the neighbors submitted two additional noise complaints..
In May 2013, the department found Fox Islands Wind is operating in compliance with the department's noise regulations, said court papers.
Courier Publications reporter Juliette Laaka can be reached at 594-4401 or by email at email@example.com.