CANTON — A Massachusetts wind power developer has until Sept. 17 to respond to an administrative appeal filed with the Maine Department of Environmental Protection last month by a Carthage woman, a state official ruled Thursday.
Robert A. Foley, chairman of the Maine Board of Environmental Protection in Augusta, made the decision.
In May, the DEP approved the nearly $50 million, eight-turbine wind project on Canton Mountain, issuing a permit to Canton Mountain Wind LLC, which is owned by Patriot Renewables LLC of Quincy, Mass.
On July 17, Alice McKay Barnett, a wind power opponent, submitted seven documents of supplemental evidence that mostly concern turbine noise adversely affecting health.
In her petition for review of final agency action against the DEP and Canton Mountain Wind, Barnett wrote that she objected to a ruling that the wind developer establish a toll-free complaint hotline designated to allow concerned residents to call in noise-related complaints 24 hours a day, seven days a week.
Barnett said she believes a complaint hotline like that should be in the hands of health officials instead of a wind developer. She said Patriot Renewables “is not responsible to collect data of complaints.”
Barnett cited and included several examples of that, such as complaints from residents adversely affected by turbine noise from Patriots’ Spruce Mountain Wind farm in Woodstock and the developer’s control of noise by purchasing noise easements or making sound agreements with property owners.
On behalf of Canton Mountain Wind, Matthew Manahan, a lawyer with Pierce Atwood of Portland, filed comments on Aug. 21 on the admissibility of Barnett’s proposed supplemental evidence.
Canton Mountain Wind argued that Barnett’s attachments didn’t meet the criteria for admission and asked that they be stricken from the record.
In an emailed letter sent Thursday by Foley to Manahan and Barnett, Foley accepted the developer’s argument and rejected all seven attachments by not admitting them into the record. Five of them, he said, predate the DEP commissioner’s decision on the application and could have been brought to the DEP’s attention during its review of the application.
He said the other two attachments are excerpts from the Maine Center for Disease Control and Prevention website and could have been submitted earlier in the licensing process.
Responding to Barnett’s proposed supplemental evidence, Canton Mountain Wind also submitted documents should her attachments to the appeal be admitted, but Foley did not admit them into the record.
The applicant also argued that Barnett’s inclusion of references in her appeal to the concerns of other individuals who didn’t appeal the licensing decision should be stricken from the appeal.
Foley disagreed.
He said that information was submitted by Barnett during the application review process via emails to department staff dated March 25 and 28. Foley said that while the listed individuals aren’t appellants, Barnett’s statement is in the record and can be cited.
Cynthia Bertocci, BEP executive analyst, said Thursday that because Foley struck the attachments from the record, they were redacted so the Board of Environmental Protection cannot consider them when it hears Barnett’s appeal.
She said the next step is for Canton Mountain Wind to respond in writing to the substance of Barnett’s arguments about turbine noise concerns and being required to establish a toll-free hotline.
Despite Barnett’s appeal, Bertocci said the developer could go forward with its construction project at its own risk because it has been licensed to do so. However, should the appeal be approved and the permit denied, the developer’s expenditure would be lost.
That’s why, she said, most wind developers wait until all appeals are settled.
After the developer files its response, Barnett and Canton Mountain Wind will get to make their points before the BEP at a meeting that has yet to be set. The board will decide the matter.
Bertocci said that if the BEP decides against Barnett, she could appeal the matter to the Maine Supreme Judicial Court, as could others. She said Barnett’s appeal is the only one the board has received.
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