Augusta – A Kennebec County Superior Court Justice ruled March 10 the Environmental Protection Agency commissioner had no evidence to justify her issuance of a noise compliance order concerning a Vinalhaven wind energy project.
Justice Micaela Murphy ruled in favor of Fox Island Wind Neighbors, who petitioned the court in 2011, challenging the Fox Island Winds LLC compliance with noise regulations, a stipulation of the project’s license.
The petitioners also claim the Department of Environmental Protection Commissioner Patricia Aho acted on political motivation in limiting noise reduction requirements and nixing an appendix of a compliance condition order against the advice of DEP staff. The appendix, A, was modeled after a similar small-scale wind project on Pisgah Mountain.
In 2010, the DEP issued a formal non-compliance letter to Fox Island Winds based on a specific complaint lodged by neighbors that on two nights in July 2010, the turbines exceeded the night time sound limit. In 2011, Fox Island Winds said they would reduce the sound only when meteorological conditions were similar to those on the nights cited, including wind blowing from the south west. The department decided the Fox Island Winds response was inadequate and drafted a counterproposal with provisions to ensure compliance with the noise rule, including Appendix A, which Fox Island Winds 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 Island Winds.
Murphy said in her ruling that the fact Aho was previously employed by Pierce Atwood or the fact the compliance condition order was issued in terms highly favored to the Fox Island Winds project cannot, by themselves, be the basis for finding bias.
However, Murphy said although the court did not find evidence of bias in this case, it recognizes the difficult issues crated by Aho’s continued participation in the matter in light of her former affiliation with the firm. She wrote 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 anti-ethical 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. ” Not only why Aho chose to focus only on wind direction, but also why she declined the recommendation of the DEP staff that Appendix A was essential, in the wake of violations, to maintain ongoing compliance with the noise rule,” court papers state.
The DEP’s defense is Aho based her decision on what was certain, as opposed to what is uncertain. The department did not comment on the redaction of Appendix A.
In June 2011, the department issued the order, signed by Aho, that determined Fox Island Wind complied with Condition 8 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 Island 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 Island Winds is operating in compliance with the department’s noise regulations, said court papers.
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