Augusta – Claiming three successive Maine Department of Environmental Protection commissioners acted on political motivation, a group calling itself Fox Islands Wind Neighbors petitioned Kennebec County Superior Court on July 28, challenging Fox Islands Wind LLC’s compliance with a condition of its license.
On June 30 DEP issued an order, signed by DEP Commissioner Patricia Aho, that determined Fox Island Wind complied with Condition 8 of a license to operate a small scale wind energy project on Vinalhaven.
“It is alleged that the order was politically motivated and issued over the strong objections of the Division of Land Resources of the DEP,” the petition said. It also alleged that the DEP’s order is arbitrary and capricious and contrary to law, and that it deprives residents near the project of the benefit of law and regulations that protect citizens from excessive noise.
The petitioners have asked the court to vacate the June 30 order and to replace it with an order drafted by DEP staff. Earlier this year, DEP staff prepared a draft order requiring submission of data and requiring Fox Island Wind to post operational sound and meteorological data on a website for public review. The petitioners said Commissioner James Brooks watered down complaint procedures included in the draft and Commissioner Darryl Brown limited corrective action required by Fox Island Wind. Aho, they said, removed any requirement that Fox Island Wind prove ongoing compliance, “putting substantial obstacles in the path of residents wishing to file noise complaints to the DEP.”
The petitioners are Barbara Santa Coloma, Alan Farago, Arthur Farnham, William Haible, William Haley, Art Lindgren and Cheryl Lindgren.
They said the current order exposes 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.
The petition claimed the project did not live up to assurances made by Fox Islands Wind’s Chief Executive Officer George Baker, that nearby residents would not hear turbine noise because of other ambient sound levels. It said action was taken to quiet noise after complaints were made.
“With the assistance of its acoustical consultant, [Fox Islands Wind Neighbors] took sound measurements from the project on its own and at its expense on Mar. 15 through 19, 2010,” the petition said. Readings that showed higher than allowable noise were submitted to DEP, with a request for meteorological and power output information from Fox Islands Wind, petitioners said.
“The requested information was never received,” they said.
Baker said on Aug. 2 that the utility has provided DEP with all the information the state agency requested.
“I have to say, I don’t understand,” said Baker. He said the protocol now in place for monitoring sound levels at the site is the same that was approved during the Baldacci Administration by former DEP Commissioner Beth Nagusky and former Public Utilities Commissioner David Littell.
On April 30, 2010, Fox Islands Wind Neighbors filed three formal complaints, along with a request that DEP require that Fox Islands Wind comply with the request for information. Additional complaints were filed throughout that spring. On May 3, DEP made a formal demand that Fox Islands Wind provide the data, and on May 6 the state agency asked the Neighbors to refrain from filing additional complaints, “pending resolution of those submitted.”
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 late May 2010, the DEP and its consultant determined that new complaint procedures needed to be put in place because the consultant was having difficulty evaluating citizen complaints without data from FIW,” the petition said. It said DEP issued those new protocols on June 23, 2010, over objections from Fox Islands Wind.
The petition quotes earlier documents submitted to the DEP by Fox Islands Wind, including this from the utility’s attorney: “My clients do not have the resources of a utility financed by ratepayers. They are digging into their own pockets to do the best they can to protect their property and their well-being. There is nothing in the noise rules that justifies such technical and burdensome requirements. More than that, the noise complaint protocols set up a process that is contrary to the licensing requirements of the [Fox Islands Wind] project.”
The petition outlines its requests for information, and alleged delays in getting it.
“Finally, on Sept. 8, 2010, six months after FIWN began filing complaints and 10 months after FIW began operations… DEP consultant Warren Brown has determined that FIW was exceeding the…sound level limits in the nighttime of July 17 and 18,” the new petition said. It said consultant Brown recommended substantial changes for Fox Island Winds’ nighttime operations.
While the petition said DEP staff continued to attempt to get accurate information and set protocols to respond to the data provided, DEP Commissioner Darryl Brown, on the other hand, “overrode, for political considerations, the position of the DEP’s professional staff and expert consultant and state that the DEP would accept a revised operating protocol that was limited to specific conditions… without addressing noncompliance caused by wind shear in other conditions.”
Baker said on Aug. 2 that those changes: “were extremely expensive and were going to impose huge costs on the community. They were going to result in an inaccurate measurement of compliance.”
He said the new protocol would not account for ambient sounds such as the wind in the trees.
“When the wind is blowing on Vinalhaven, the ambient is loud,” he said.
The petition said Brown’s successor at DEP, Acting Commissioner James Brooks, directed DEP staff to revise the draft compliance assessment plan and complaint protocol “to remove the shutdown provisions and make the drafts more palatable to FIW.” It says Fox Islands Wind continued to reject parts of the revised plan and protocol.
In June, Brooks resigned and was replaced by Acting Commissioner Patricia Aho, who joined the LePage administration “after working as a lobbyist for the law firm Pierce Atwood, the same law firm representing FIW,” according to the petition.
“Acting Commissioner Aho, over the objection of DEP professional staff, and in direct contradiction of the findings in the November determination of noncompliance letter, issued a compliance condition order,” the petition said. The petitioners are asking the court to vacate Aho’s order and replace it with an order drafted by DEP staff, and to review the alleged instances of political intervention.
On Aug.1, DEP spokesperson Samantha Depoy-Warren said the department was, “declining comment on this until we have had time to review the complaint.” She referred the call to Assistant Attorney General Jerry Reid, who said he was still reviewing the case. Reid said it was not the policy of his office to comment on pending litigation.
According to information from the Fox Islands Electric Cooperative, the Fox Islands Electric Wind Power Project began in 2001, with an effort by then General Manager Dave Folce. A study done in 2002 determined that the islands had sufficient wind to justify further exploration, while during the same period, the cable that brings electricity to the communities of North Haven and Vinalhaven was becoming less reliable. That cable was replaced in 2005. In 2009, three turbines were installed on Vinalhaven Island.
Read Fox Islands Wind Neighbors’ July 28 petition.