Concerned Citizens to Save Roxbury v. Board of Environmental Protection

2011 ME 39, 15 A.3d 1263, 2011 Me. LEXIS 40
Supreme Judicial Court of Maine·Decided March 24, 2011·Published·Cited by 34 cases

Opinion

GORMAN, J.

[¶ 1] Pursuant to 38 M.R.S. § 346(4) (2010),1 Concerned Citizens to Save Rox-[1265] bury, the Silver Lake Camp Owners Association, and several individuals (collectively CCSR) appeal from a decision of the Board of Environmental Protection that approved the issuance of permits to Record Hill Wind, LLC (Record Hill), to construct a wind energy facility in the Town of Roxbury. CCSR argues that the Board erred in (1) denying CCSR’s request to hold a public hearing, and (2) finding that Record Hill satisfied applicable licensing requirements with respect to health effects from noise, financial capacity, and the establishment of a decommissioning plan.2 We disagree with these contentions and affirm the Board’s decision.

I. BACKGROUND

[¶ 2] In December 2008, Record Hill filed an application with the Department of Environmental Protection for permits, pursuant to the Site Location of Development statute, 38 M.R.S. §§ 481-490 (2008) (the Site Location statute), and the Natural Resources Protection Act, 38 M.R.S. §§ 480-A to 480-GG (2008) (the NRPA),3 to construct the Record Hill Wind Project in Roxbury. This project involves the construction of a 50.6-megawatt wind energy generation facility consisting of twenty-two wind turbines to be located along the ridgelines of Record Hill, Flathead Mountain, and Partridge Peak; new access roads and a crane path; electrical transmission lines; an electrical collector substation; two meteorological towers; and an operations and maintenance building. Because the project is “a grid-scale wind energy development that is proposed for location within an expedited permitting area,” it is considered to be an “expedited wind energy development.” 35-A M.R.S. § 3451(4) (2010).

[¶ 3] In its application, Record Hill stated that the project would cost approximately $120 million, and that it intended to fund the project using third-party financing. Record Hill’s application included a letter from CoBank, ACB, reciting that, although the bank was not providing a binding commitment to Record Hill, it “intend[ed] to provide financing for the Project subject to certain conditions.” Record Hill later submitted a letter from another bank, Northern Trust Company, confirming that the controlling majority owner of Record Hill had an “availability of funds to finance” the project. With respect to the establishment of a decommissioning plan, Record Hill proposed to begin contributing [1266] money to a decommissioning fund in years eleven through fourteen of the project’s operation.

[¶ 4] Record Hill also included a “Sound Level Assessment” with its application. This assessment, prepared by an engineering firm, predicted that the sound levels expected to result from operation of Record Hill’s wind turbines would comply with the Department’s rules concerning sound level limits.4 See 38 M.R.S. § 484(3)(B); 2 C.M.R. 06 096 375-6 to -15 § 10 (2001). The engineering company also recommended that Record Hill monitor actual sound levels during operation of the project to ensure compliance with the Department’s rules.

[¶ 5] Pursuant to 38 M.R.S. § 344(1) (2010), the Commissioner solicited comments from the public to be considered in determining whether to approve, approve with conditions, or disapprove Record Hill’s application. See 38 M.R.S. § 344(2-A) (2009);5 2 C.M.R. 06 096 002-7 to -8 §§ 14, 16 (2003). Complying with this process, CCSR and other members of the public submitted written comments, reports, and other information regarding concerns about the project. Specifically, CCSR questioned the accuracy of Record Hill’s sound level assessment, asserting that the model used in the assessment: (1) was not designed for wind turbines; (2) improperly considered wind turbines as point sources of sound, as opposed to line sources; and (3) did not include a penalty for the occurrence of short duration repetitive sounds. CCSR also presented evidence of the adverse health effects from noise and low frequency sounds produced by wind turbines.6

[¶ 6] In February 2009, the Department held a public meeting pursuant to 38 M.R.S. § 345-A(5) (2010),7 where the public could comment on and ask questions about the project. CCSR attended this meeting and submitted verbal and written comments challenging the accuracy of the sound assessment and asserting that noise from the proposed project would have an adverse impact on health. CCSR also presented a document entitled “Review of Noise Study for Record Hill Wind, LLC,” prepared by an acoustical engineer, which discussed multiple reasons why the sound assessment submitted by Record Hill was “flawed” and “should be rejected.” After the public meeting, CCSR continued to contact the Department with questions about the project, and continued to provide [1267] the Department with information supporting its concerns.

[¶ 7] As part of its review of Record Hill’s application, the Department consulted with the Maine Center for Disease Control (MCDC), which issued a report in June of 2009 on the potential health effects from noise produced by wind turbines. The MCDC “found no evidence in peer-reviewed medical and public health literature of adverse health effects from the kinds of noise and vibrations [emitted] by wind turbines other than occasional reports of annoyances, and these are mitigated or disappear with proper placement of the turbines from nearby residences.” Although the MCDC’s report stated that exposure to high levels of low frequency noise could “be annoying and may adversely affect overall health,” the MCDC determined that “these levels appear to be more intense than what is measured from modern wind turbines.” The MCDC concluded that there was no reliable evidence that low frequency noise produced by wind turbines would cause significant adverse health effects, and that “[t]here are tremendous potential health benefits to wind turbines, including reductions in deaths, disability, and disease due to asthma, other lung diseases, heart disease, and cancer.”

[¶ 8] The Department also retained a noise control consultant to evaluate Record Hill’s sound assessment. In a report dated August 10, 2009, the consultant concluded that the assessment was “reasonable and technically correct according to standard engineering practices and the Department Regulations on Control of Noise.” The consultant also opined that low frequency noise produced by wind turbines “fall[s] far below” common human perception.

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Concerned Citizens to Save Roxbury v. Board of Environmental Protection, 2011 ME 39, 15 A.3d 1263, 2011 Me. LEXIS 40 (Me. 2011).

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