VINALHAVEN, Maine — Neighbors of three wind turbines on this island will get a hearing in court to see whether Fox Island Wind’s plan to quiet its turbines is stringent enough.
Although court documents state there were two nights in July 2010 that the Vinalhaven turbines were too noisy, the problem has persisted, according to the Fox Island Wind Neighbors, a group of about 15 people who filed a lawsuit in July 2011 in Kennebec County Superior Court seeking to nullify a June 2011 Department of Environmental Protection order against the wind power project developer. The group wants the court to institute an earlier version of the order developed by DEP staff that imposed tougher compliance requirements.
Fox Islands Wind asked the court to throw the case out but Kennebec County Superior Court Justice Michaela Murphy ruled March 20 the case will not be dismissed.
Now the court may hear arguments on the legality of the conditional compliance order.
The three turbines slipped out of compliance at least two nights in July 2010 by exceeding the 45 decibel noise limit set by the Board of Environmental Protection, according to court records.
After the noise problem was reported, Fox Islands Wind had to submit a plan to the Maine Department of Environmental Protection explaining how it would fix the problem.
The DEP approved the plan and gave the wind company a conditional compliance order.
The neighbors group was not satisfied by the corrective plan and filed the lawsuit.
According to court documents, DEP staff in April 2011 planned to order Fox Islands Wind to demonstrate that it was operating within the noise limits for three months and then again every five years. The DEP also would have made the company post all operational, sound and meteorological data online for the public to see.
In June, under a new commissioner, the DEP redrafted the compliance order, taking out parts that would make the wind company demonstrate compliance and post the information online.
The neighbors group said that decision was “politically motivated, arbitrary and capricious, contrary to law, unsupported by substantial evidence, and the product of an abuse of discretion,” court documents state. The Fox Island Wind Neighbors pointed out that new DEP Commissioner, Patricia Aho, had worked at Pierce Atwood, the same firm that represents Fox Islands Wind.
“That [new] version of the compliance order insulated Fox Islands Wind from accountability. That’s when we took it to court. They tried to throw it out and the judge said no way,” said Rufus Brown, attorney for Fox Islands Wind Neighbors.
Brown said he also is filing First Amendment claims in court that the DEP intentionally has made it difficult for the neighbors group to file complaints about the wind turbine noise and that the DEP did not enforce noise rules after complaints were made.
Since those days in July 2010 when the turbines were too noisy at night, the wind company has been working at reduced capacity, which makes less energy, said Chip Farrington, who runs the wind co-op and is also on the Fox Islands Wind management committee.
Fox Islands Wind had General Electric add serrated edges to the turbine blades last autumn.
“They look like shark fins and that mitigates noise without decreasing the power; that dropped the noise by two decibels,” Farrington said.
The community-supported Fox Islands Wind facility began operating in October 2009 in an effort to reduce high electricity costs on the islands of Vinalhaven and North Haven. Supporters claim the facility has helped lower costs and continues to enjoy the strong backing of most island residents.