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Vinalhaven wind case goes to Maine High Court

Augusta – The Department of Environmental Protection is appealing a Kennebec Superior Court Justice’s March decision that the agency’s commissioner was in error when she weakened noise restrictions for a wind project on Vinalhaven.

Justice Michaela Murphy ruled March 10 that the state’s environmental protection commissioner, Patricia Aho, failed to provide evidence or reasoning for her decision to focus on Fox Island Wind project’s noise violations from a two night period rather than as a whole. Murphy, in her order, also added the commissioner’s past work for a firm representing the wind project created mistrust in the community.

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.

The state has filed an appeal of Murphy’s decision based on four points, including whether the agency’s action is subject to judicial review, whether a third party has standing to challenge the action, and whether the separation of powers allows the court to review the department’s action.

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.

The fact that Aho was previously employed by Pierce Atwood, and that the order was issued in terms highly favorable to Fox Islands Wind do not, by themselves, prove bias, Murphy said in her ruling.

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. Aho’s participation was called antithetical to the notion of impartiality as expected by state agencies, the ruling said.

Murphy 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.

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 neighbors argued 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 neighbors’ 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.

In May 2013, the department found Fox Islands Wind is operating in compliance with the department’s noise regulations, said court papers.