Neighbors hope Maine court will hear their petition … Fox Islands Wind hopes not

On July 28, 2011 neighbors of the Vinalhaven wind turbines filed a petition (Fox Islands Wind Neighbors Petition for Review (final) in Maine Superior Court, asking the court to overturn a June 30 order by the Maine Department of Environmental Protection. The neighbors allege the order circumvented the state’s own expert staff. The final order, contrary to the recommendation of staff, was imposed by political influence from the Governor’s Office. This charge is supported by documentation obtained through a freedom of information request. The tumult involving wind turbines and Vinalhaven caused the state environmental agency to suffer staff upheaval, departures, and plunging morale.

In their petition, the neighbors ask the court to replace the order with one drafted earlier and supported by DEP professional staff. From the commencement of the Fox Islands Wind turbine farm in November 2009, neighbors spent significant time, energy and after-tax dollars exposing serious weaknesses in existing state law regulating wind turbine noise violations. When neighbors petitioned the US EPA to become involved– citing a nation-wide problem wherever wind turbines are built too close to residences– the federal agency declined and referred Maine citizens to the state DEP. That is exactly where neighbors had engaged, with staff who recently resigned as a result of political pressure. For a two year period, neighbors attempted to develop a protocol for evaluating noise and violations in order to meet state specifications for acoustical measurement. It was partly in anticipation of harsh state politics that neighbors petitioned the federal agency. (The EPA remains dormant on the issue of regulating wind turbine noise.)

Notwithstanding its spin, Fox Islands Wind strongly resisted the state regulatory agency. At the last moment, when it appeared regulators had satisfied the requirement of rigorous data and were ready to shift the burden and cost of acoustical violations from neighbors to the utility, Fox Islands Wind lobbyists appealed to the Governor’s Office.

On August 15, Fox Island Wind attorneys filed a motion to dismiss the petition, on technical grounds based on an interpretation of the 2008 Wind Power Act. On September 21, neighbors’ attorney Rufus Brown filed a response, asking the court to dismiss FIW’s motion and allow a hearing to proceed. Here is the full response: FIWN final Opposition to Motion to Dismiss. The neighbors conclude:

“What Petitioners complain about in the Petition for Review is the Order of the (DEP) Commissioner putting in place compliance assessment procedures that effectively remove any requirement that FIW affirmatively prove ongoing compliance or any requirement that FIW submit information from which the Department could make a decision that FIW is continuing to operation in violation of the Noise Rules and its certification. Petitioners further challenge the the Order because it formalizes a complaint protocol that created unwarranted, substantial obstacles in the path of residents wishing to file noise complaints. The Order complained about also failes to require taking corrective action to address conditions that the Department determined were causing the Project to be out of compliance. All and all, the Order authorizes FIW to continue operations that do not comply with the Noise Rule and effectively immunizes FIW as a practical matter from accountability for the noise in excess of the Noise Rule in the future. These decisions do not fall within the scope of prosecutorial discretion; they represent conduct exempting FIW from compliance with certification standards mandated by law. Neither the Department nor the Town of Vinalhaven nor anyone else has the right to do this.”

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