MAINE SUPREME JUDICIAL COURT
Decision:
2011 ME 39
Docket:
BEP-10-206
Argued:
January 11, 2011
Decided:
March 24, 2011
Panel:
Reporter of Decisions
SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
JJ.
CONCERNED CITIZENS TO SAVE ROXBURY et al.
v.
BOARD OF ENVIRONMENTAL PROTECTION et al.
GORMAN, J.
[¶1] Pursuant to 38 M.R.S. § 346(4) (2010),1 Concerned Citizens to Save
Roxbury, 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
1
Title 38 M.R.S. § 346(4) (2010), as amended by P.L. 2009, ch. 615, § E-5 (effective April 7, 2010),
provides:
A person aggrieved by an order or decision of the board or commissioner regarding an
application for an expedited wind energy development, as defined in Title 35-A, section
3451, subsection 4, or a general permit pursuant to section 480-HH or section 636-A may
appeal to the Supreme Judicial Court sitting as the law court. These appeals to the law
court must be taken in the manner provided in Title 5, chapter 375, subchapter 7.
Title 38 M.R.S. § 346(4) (2010) has since been amended, though that amendment is not relevant in the
present case. P.L. 2009, ch. 642, § B-4 (effective July 12, 2010).
2
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
2
In addition to these arguments, CCSR contends that the Board erred in denying, in part, its request to
supplement the record. We find this argument unpersuasive and do not address it further.
3
The Site Location of Development statute, 38 M.R.S. §§ 481-490 (2008), has since been amended.
P.L. 2009, ch. 293, §§ 1-4 (effective Sept. 12, 2009); P.L. 2009, ch. 506, §§ 1, 3 (effective March 15,
2010); P.L. 2009, ch. 602, §§ 2-3 (effective April 2, 2010); P.L. 2009, ch. 615, §§ E-13 to E-20 (effective
April 7, 2010). The Natural Resources Protection Act, 38 M.R.S. §§ 480-A to 480-GG (2008), has also
been amended. P.L. 2009, ch. 75, §§ 1-5 (effective Sept. 12, 2009); P.L. 2009, ch. 270, § A-2 (effective
June 4, 2009); P.L. 2009, ch. 295, § 1 (effective Sept. 12, 2009); P.L. 2009, ch. 460, §§ 1-2 (effective
Sept. 12, 2009); P.L. 2009, ch. 537, §§ 3-4 (effective July 12, 2010); P.L. 2009, ch. 561, §§ 37-38
(effective July 12, 2010); P.L. 2009, ch. 615, §§ E-6 to E-12 (effective April 7, 2010). These
amendments are not relevant in the present case.
3
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 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
4
The Department regulates sound levels for various developments, including wind energy
developments. 2 C.M.R. 06 096 375-6 to -15 § 10(B)-(C) (2001). The applicable sound level limits are
determined, in part, by the pre-development sound levels. 2 C.M.R. 06 096 375-7 to -8 § 10(C)(1)(a). If
pre-development sound levels are below a certain level, a developer must comply with more stringent
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
sound level limits. 2 C.M.R. 06 096 375-7 § 10(C)(1)(a)(v). In this case, the parties agree that the more
stringent sound level limits apply.
5
Title 38 M.R.S. § 344(2-A) (2009) has since been amended, though not in any way that affects this
case. P.L. 2009, ch. 615, § E-3 (effective April 7, 2010).
5
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 the Department with
information supporting its concerns.
6
One of the petitioners also filed a request that the Department hold an adjudicatory hearing on the
application. The Department denied this request.
7
Title 38 M.R.S. § 345-A(5) (2010) states:
At the board’s or commissioner’s discretion, the board or commissioner may schedule
and hold public meetings in the geographic area of a proposed project for the purpose of
collecting comments that become part of the record in a pending action. Any such
meeting must be held during the period when written public comments may be submitted
to the department. This subsection and the conduct of a public meeting do not change
any other obligation the department has to hold public hearings that are mandatory by
statute or required after a timely request is filed.
6
[¶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
7
Noise.” The consultant also opined that low frequency noise produced by wind
turbines “fall[s] far below” common human perception.
[¶9]
In a sixty-page order dated August 20, 2009, the Commissioner
approved Record Hill’s application for the Record Hill Wind Project, conditioned
on Record Hill’s implementation of a sound level compliance plan to monitor
actual sound levels during routine operation of the project.8 CCSR appealed the
Commissioner’s decision to the Board of Environmental Protection and requested
a public hearing on the issues of the health effects of noise produced by wind
turbines and Record Hill’s compliance with the Department’s sound level limits.
[¶10] During the autumn and early winter of 2009, CCSR and Record Hill
submitted to the Board a number of documents that had not been included in the
record before the Commissioner, but which one or the other wished to have the
Board consider, either in support of CCSR’s request for a public hearing, or as part
of the Board’s review of the Commissioner’s decision.
In a letter dated
January 21, 2010, the chair of the Board notified the parties that the Board was
accepting some of the documents, but rejecting others.9 In that letter, the chair also
8
As discussed below, the Commissioner has original jurisdiction over an application for an expedited
wind energy development. 38 M.R.S. § 344(2-A)(A)(1); see 38 M.R.S. § 341-D(2) (2009). Title 38
M.R.S. § 341-D (2009) has since been amended, but not in any way that affects the present case.
P.L. 2009, ch. 615, §§ E-1 to E-2 (effective April 7, 2010).
9
Pursuant to 38 M.R.S. § 341-D(4)(D), (5), the Board may accept supplemental evidence when the
evidence is “relevant and material” and:
8
told the parties that no further documents could be submitted unless a public
hearing was scheduled.
[¶11] After oral argument before the Board, on March 18, 2010, the Board
denied CCSR’s request for a public hearing, stating that the record was
“adequately developed with regard to the statutory criteria” and that CCSR “did
not demonstrate that there is sufficient conflicting technical evidence on a licensing
criterion to warrant a public hearing.” In the same order, the Board determined
that Record Hill’s application satisfied the requirements for the issuance of permits
pursuant to the Site Location statute, the NRPA, and the Wind Energy Act, 35-A
M.R.S. §§ 3401-3458 (2009).10 It therefore approved Record Hill’s application for
development of the Record Hill Wind Project, but required Record Hill to submit
updated documentation of its financial capacity at least fifteen days before
resuming construction,11 and imposed specific enumerated conditions intended to
provide financial assurance that Record Hill would have sufficient reserve funds
[A]n interested party seeking to supplement the record has shown due diligence in
bringing the evidence to the licensing process at the earliest possible time or the evidence
is newly discovered and could not, by the exercise of diligence, have been discovered in
time to be presented earlier in the licensing process.
See also 2 C.M.R. 06 096 002-11 § 24(B)(5) (2003).
10
The Wind Energy Act, 35-A M.R.S. §§ 3401-3458 (2009), has since been amended, but those
amendments are not relevant in the present case. P.L. 2009, ch. 615, §§ A-2 to A-4 (effective April 7,
2010); P.L. 2009, ch. 642, §§ A-2 to A-7, B-2 (effective July 12, 2010).
11
Record Hill temporarily suspended construction of the project on November 24, 2009.
9
for decommissioning the project. Finally, as it relates to this appeal, the Board
found that Record Hill had made adequate provisions to ensure that the project will
be in compliance with the applicable sound level limits, and that the project would
not have an unreasonable adverse health effect on the surrounding environment
and protected locations. CCSR appeals from the Board’s decision.
II. DISCUSSION
A.
Identifying the Operative Decision
[¶12] First, we must determine whether the Commissioner’s decision or the
Board’s decision is the operative decision in this appeal. Record Hill contends that
the Board acted in an appellate capacity in reviewing the Commissioner’s licensing
decision and simply determined whether the Commissioner “arrived at the proper
decision.” Neither the Board nor CCSR presented any argument about which
decision is the operative one for appellate review; both of those parties appear to
assume that the Board’s decision is the decision under review. We look first to the
Maine statutes delineating the authority and responsibilities of the Commissioner
and the Board in considering applications for wind energy developments in order
to determine the proper scope of the Board’s review.
[¶13] In 2004, the Legislature adopted the Maine Wind Energy Act, and
included in the statute its finding that “it is in the public interest to encourage the
construction and operation of community wind power generation facilities in the
10
State.” 35-A M.R.S. § 3402; see also P.L. 2003, ch. 665, § 3 (effective July 30,
2004); P.L. 2005, ch. 646, § 3 (Aug. 23, 2006). In 2008, the Legislature amended
the Act; the amendment contained its finding that “it is in the public interest to
reduce the potential for controversy regarding siting of grid-scale wind energy
development by expediting development in places where it is most compatible with
existing patterns of development and resource values.” To achieve that goal, the
amendment directed that the State’s existing regulatory process be modified to
“encourage the siting of wind energy developments in these areas.” P.L. 2007,
ch. 661, § A-5 (effective April 18, 2008) (codified at 35-A M.R.S. § 3402(2)).
Specifically, certain procedures of the Department and the Maine Land Use
Regulation Commission in considering applications for wind energy developments
were to be “refin[ed].”
P.L. 2007, ch. 661, § A-5 (codified at 35-A M.R.S.
§ 3402(2)).
[¶14] One of the refinements enacted was a limitation on the original
jurisdiction of the Board of Environmental Protection. See P.L. 2007, ch. 661,
§§ B-1, B-5 (effective April 18, 2008) (codified at 38 M.R.S. §§ 341-D(2),
344(2-A)(A)(1) (2009)). Generally, the Commissioner and the Board each has
authority to issue licenses or permits on behalf of the Department. 38 M.R.S.
§ 341-A(4) (2010); see 38 M.R.S. § 344(2-A)(A).
Pursuant to 38 M.R.S.
§ 341-D(2), however, the Board, which consists of ten members of the public
11
appointed by the Governor, “shall assume jurisdiction” over applications for
approval of those permits and licenses that, in the Board’s judgment, involve a
policy, rule, or law it has not previously interpreted; involve “important policy
questions” it has not previously resolved; involve “important policy questions or
interpretations of a rule or law that require reexamination”; or have “generated
substantial public interest.”
38 M.R.S. §§ 341-C, 341-D(2)(A)-(D) (2009);
see 38 M.R.S. § 344(2-A)(A).
[¶15] Although wind energy development applications might fall within any
or all of those criteria, the Board is specifically prohibited from assuming
jurisdiction over applications for expedited wind energy developments. 38 M.R.S.
§§ 341-D(2), 344(2-A)(A)(1).
In the arena of wind energy development
applications, the Commissioner must make the initial determination about whether
to approve, approve with conditions, or disapprove an application. 38 M.R.S.
§ 344(2-A).
If an aggrieved party appeals the Commissioner’s decision on a
license or permit application regarding an expedited wind energy development to
the Board, the Board may hold a hearing at its discretion, and may affirm, amend,
or reverse the decision, or may remand the matter to the Commissioner for further
proceedings. 38 M.R.S. § 341-D(4), (4)(D) (2009); see 38 M.R.S. § 344(2-A).
When reviewing the Commissioner’s decision on a wind energy development
application, the Board is to consider “the administrative record of the department
12
. . . and any supplemental information allowed by the board . . . for
supplementation of the record.” 38 M.R.S. § 341-D(4)(D).
[¶16] Pursuant to 38 M.R.S. § 341-D(4)(A), when the Board is reviewing
final license or permit decisions other than those involving wind energy
development applications, it “is not bound by the commissioner’s findings of fact
or conclusions of law,” and may “adopt, modify or reverse” those findings or
conclusions.
See also 38 M.R.S. § 341-D(4)(B)-(C).12
Although 38 M.R.S.
§ 341-D(4)(D) does not specify that this standard of review is also to be applied to
wind energy cases, the Department’s own rules for processing cases contain a
similar standard found in 2 C.M.R. 06 096 002-12 § 24(B)(7) (2003), which states
that the Board “is not bound by the Commissioner’s findings of fact or conclusions
of law.”13
12
Title 38 M.R.S. § 341-D(4)(B) states that the Board shall review:
License or permit decisions made by the commissioner that the board votes to review
within 30 days of the next regularly scheduled board meeting following written
notification to the board of the commissioner’s decision. Except as provided in
paragraph D, the procedures for review are the same as provided under paragraph A.
(Emphasis added.) Subsection (4)(C) provides that the Board shall review “[l]icense or permit decisions
appealed to the board under another law,” and that “[u]nless the law provides otherwise, the standard of
review is the same as provided under paragraph A.” 38 M.R.S. § 341-D(4)(C).
13
Volume 2 C.M.R. 06 096 002-3 § 2(A) (2003) states:
General scope. These rules apply to processing of applications made to the Department
for new, renewed, amended or transferred licenses, and other determinations on specific
matters made by the Department, except as noted in section 2(B) of this rule. These rules
apply in the absence of procedural requirements imposed by statute or rule. Where other
specific procedural requirements apply, those requirements control.
13
[¶17] Pursuant to that rule, the Board engaged in an independent review of
the record in this case. The record considered by the Board included not only the
administrative record before the Commissioner, but also the supplemental evidence
presented by the parties. Based on its independent review, the Board made specific
findings of fact with respect to whether Record Hill met applicable licensing
requirements.
Because the Board acted as a fact-finder and reviewed the
substantive issues de novo, we conclude it is the Board’s decision that we review
on appeal. See FPL Energy Me. Hydro LLC v. Dep’t of Envtl. Prot., 2007 ME 97,
¶ 14, 926 A.2d 1197, 1201 (“When an agency act[s] as a tribunal of original
jurisdiction, that is, as factfinder and decision maker, we review its decision
directly.” (quotation marks omitted)).
B.
Public Hearing
[¶18] CCSR contends that, because a public hearing was mandatory, the
Board erred in denying its request for a public hearing.14 Alternatively, CCSR
argues that, even if a public hearing was not mandatory, the Board abused its
discretion in refusing to hold a public hearing.
Because 38 M.R.S. § 341-D(4) does not expressly limit the Board’s authority to review the
Commissioner’s decision de novo, and there are no apparent procedural requirements imposed by statute
or rule, the Department’s rules apply. See Rudolph v. Golick, 2010 ME 106, ¶ 7, 8 A.3d 684, 686.
14
CCSR does not challenge the Board’s refusal to hold a public hearing on due process grounds.
14
[¶19] “We review decisions made by an administrative agency for errors of
law, abuse of discretion, or findings of fact not supported by the record.”
Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶ 12, 989 A.2d 1128,
1133 (quotation marks omitted).
[¶20] CCSR relies on 2 C.M.R. 06 096 002-4 § 7(B) (2003) for its argument
that the Board was required to hold a public hearing. This rule provides:
Criteria for holding public hearings.
Public hearings are
discretionary unless otherwise provided by law. The Commissioner
may conduct a public hearing on any application. The Board may
conduct a public hearing on any application over which it has
assumed jurisdiction or any appeal or petition for reconsideration.
The Department will hold public hearings in those instances where
the Department determines there is credible conflicting technical
information regarding a licensing criterion and it is likely that a
public hearing will assist the decision maker in understanding the
evidence. When the Board assumes jurisdiction over an application, it
will hold a public hearing unless it votes otherwise at the time it
assumes jurisdiction.
2 C.M.R. 06 096 002-4 § 7(B) (emphasis added). According to CCSR, this rule
imposes a mandatory obligation on the Board to hold a public hearing whenever
the two criteria highlighted above are satisfied. The Board, on the other hand,
argues that the language “will hold public hearings” simply explains how the
agency intends to exercise its discretion regarding hearings.
[¶21] Title 38 M.R.S. § 345-A(1-A) (2010) provides that the Board may
conduct a public hearing as necessary to carry out its statutory responsibilities. As
15
stated above, one responsibility of the Board includes reviewing licensing or
permitting decisions of the Commissioner with respect to expedited wind energy
developments. See 38 M.R.S. § 341-D(4), (4)(D). When the Board reviews these
decisions, it “may hold a hearing at its discretion on and may affirm, amend,
reverse or remand to the commissioner for further proceedings.”
38 M.R.S.
§ 341-D(4); see 2 C.M.R. 06 096 002-12 § 24(B)(7). The Board’s decision must
be based on “the administrative record of the department, including the record of
any adjudicatory hearing held by the department, and any supplemental
information allowed by the board.” 38 M.R.S. § 341-D(4)(D) (emphasis added).
Title 38 M.R.S. § 341-A(2) (2010) explains that the “department shall consist of
the Board of Environmental Protection . . . and of a Commissioner of
Environmental Protection.” See also 2 C.M.R. 06 096 002-2 § 1(D), (F), (G)
(2003) (defining the terms “Board,” “Commissioner,” and “Department”).
[¶22] Similarly, the Department’s rules provide that any aggrieved person
may appeal the Commissioner’s licensing decision to the Board, and that any
appeal “must specify whether the appellant desires the Board to hold a public
hearing on its appeal.” 2 C.M.R. 06 096 002-11 § 24(B)(1). Those same rules
provide that the Board may hold a public hearing when, in its discretion, a hearing
is warranted. 2 C.M.R. 06 096 002-11 § 24(B)(1).
16
[¶23]
Because 38 M.R.S. §§ 341-D(4), (4)(D), 345-A(1-A), and the
Department’s rules make it clear that the Board has discretion in deciding whether
to hold a public hearing when reviewing a licensing decision of the Commissioner,
the Board did not err in concluding that the question of whether to hold a public
hearing was within its discretion. In addition, because the record before the Board
was voluminous and included numerous written comments, studies, and
information submitted by both Record Hill and CCSR, we see no reason to
conclude that the Board abused its discretion or otherwise erred in denying
CCSR’s request to conduct a public hearing on the ground that the record was
“adequately developed.”15
C.
Factual Findings
[¶24] “We must affirm findings of fact if they are supported by substantial
evidence in the record, even if the record contains inconsistent evidence or
evidence contrary to the result reached by the agency.” Friends of Lincoln Lakes,
2010 ME 18, ¶ 13, 989 A.2d at 1133. In applying the “substantial evidence”
standard, we do not weigh the merits of evidence; we determine whether there is
“any competent evidence in the record to support a finding.” Id. ¶ 14, 989 A.2d at
15
Even if we were to accept CCSR’s argument that the Board must hold a public hearing when it
determines that “there is credible conflicting technical information regarding a licensing criterion and it is
likely that a public hearing will assist the decision maker in understanding the evidence,” the Board
specifically did not determine that either criterion had been satisfied. 2 C.M.R. 06 096 002-4 § 7(B)
(2003).
17
1134; see also 5 M.R.S. § 11007(3) (2010). “Upon review of an agency’s findings
of fact we must examine the entire record to determine whether, on the basis of all
the testimony and exhibits before it, the agency could fairly and reasonably find
the facts as it did.” Friends of Lincoln Lakes, 2010 ME 18, ¶ 13, 989 A.2d at 1133
(quotation marks omitted). An agency’s findings of fact will be vacated “only if
there is no competent evidence in the record to support a decision.” Id. ¶ 14,
989 A.2d at 1134.
1.
Health Effects
[¶25] CCSR argues that the Board erred in finding that Record Hill satisfied
applicable licensing requirements with respect to the health effects of noise from
operation of the Record Hill Wind Project.16 CCSR also contends that the Board
should have imposed additional restrictions on Record Hill relating to noise in
order to protect the public from adverse health effects.
[¶26]
Pursuant to the Site Location statute, the Board must determine
whether Record Hill “made adequate provision for fitting the development
harmoniously into the existing natural environment and that the development will
not adversely affect existing uses.”
16
38 M.R.S. § 484(3).
In making this
CCSR does not challenge the Board’s finding that the Record Hill Wind Project would comply with
the Department’s existing sound level limits, and, with regard to its argument that compliance with the
sound level limits does not provide adequate protection for the public, CCSR conceded at oral argument
that it was not pursuing its challenge to the existing sound level limits in this proceeding. See 5 M.R.S.
§ 8058 (2010).
18
determination, the Board considers its rules relating to noise.
38 M.R.S.
§ 484(3)(B); see 2 C.M.R. 06 096 375-6 to -15 § 10 (2001). The Board may
impose “any reasonable requirement to ensure that the developer has made
adequate provision for the control of noise from the development and to reduce the
impact of noise on protected locations.” 2 C.M.R. 06 096 375-10 § 10(E).
[¶27] We conclude that the Board’s findings concerning the health effects
of wind turbine noise are supported by substantial evidence in the record. The
report of the MCDC and the noise control consultant’s opinion both support the
finding that the Record Hill Wind Project will not generate unreasonable adverse
health effects. Although CCSR submitted contrary evidence, “[w]e cannot reject
the Board’s finding on the grounds that other evidence in the record supports a
different factual finding.” See Friends of Lincoln Lakes, 2010 ME 18, ¶ 20,
989 A.2d at 1135. In addition, although CCSR contends that the Board failed to
impose further conditions on Record Hill, the Board was not required to do so
given its finding relating to the health effects associated with the project.
2.
Financial Capacity
[¶28] CCSR next argues that the evidence in the record is insufficient to
support a finding that Record Hill has sufficient financial capacity to develop the
project.
In order to approve an expedited wind energy development, the
Department must find that “[t]he developer has the financial capacity and technical
19
ability to develop the project in a manner consistent with state environmental
standards and with the provisions of this article.” 38 M.R.S. § 484(1). In this case,
the record includes a letter submitted by Record Hill demonstrating a bank’s intent
to fund the project. There is also evidence demonstrating that the controlling
owner of Record Hill has sufficient funds to finance the entire project. On this
record, we conclude that there is substantial evidence to support the Board’s
finding of financial capacity.
3.
Decommissioning Plan
[¶29] CCSR finally contends that the Board erred in finding that Record
Hill satisfied licensing requirements with respect to the establishment of a
decommissioning plan.
[¶30]
In a 2008 amendment to the Wind Energy Act, the Legislature
specified that the Department must identify the submission requirements relating to
decommissioning plans for wind energy development applications.17 P.L. 2007,
17
Although this amendment has not been codified in Title 38, the Department nonetheless requires
developers to submit decommissioning plans as part of any wind energy development application. See
Me.
Dep’t
of
Envtl.
Prot.,
Site
Law
Application,
§
29
http://www.maine.gov/dep/blwq/docstand/sitelaw/application_text.pdf. In this 2008 amendment, the
Legislature required the Department to identify the applicable licensing requirements for wind energy
development applications relating to:
Decommissioning plans, including demonstration of current and future financial capacity
that would be unaffected by the applicant’s future financial condition to fully fund any
necessary decommissioning costs commensurate with the project’s scale, location and other
relevant considerations, including, but not limited to, those associated with site restoration
and turbine removal.
P.L. 2007, ch. 661, § B-13 (effective April 18, 2008).
20
ch. 661, § B-13 (effective April 18, 2008). In its March 2010 order, the Board
noted that, in submitting a wind energy development application, an applicant is
required to include a decommissioning plan that would be unaffected by the
applicant’s future financial condition.
[¶31] In this case, the Board’s finding that Record Hill satisfied licensing
requirements with respect to establishing a decommissioning plan is supported by
substantial evidence in the record. Record Hill proposed to begin contributing
money to a decommissioning fund in years eleven through fourteen of operation,
but the Board reasoned that “a steadier and more frequently reassessed set aside of
funds is prudent.” The Board ordered Record Hill to begin reserving funds for
decommissioning in the first year of operation, and further required a reassessment
of the salvage value and decommissioning costs in years seven and fifteen of
operation. Contrary to CCSR’s contentions, the Board did not abuse its discretion
or otherwise err in its determination on this issue.
The entry is:
Decision of the Board of Environmental Protection
affirmed.
21
Attorney for Concerned Citizens to Save Roxbury,
the Silver Lake Camp Owners Association,
and the individual appellants:
Rufus E. Brown, Esq. (orally)
Brown & Burke
85 Exchange Street
PO Box 7530
Portland, Maine 04112-7530
Attorneys for the Board of Environmental Protection:
Janet T. Mills, Attorney General
Gerald D. Reid, Asst. Atty. Gen. (orally)
Margaret Bensinger, Asst. Atty. Gen. (orally)
6 State House Station
Augusta, Maine 04333-0006
Attorneys for Record Hill Wind LLC:
Juliet T. Browne, Esq. (orally)
Gordon R. Smith, Esq.
Verrill Dana LLP
One Portland Square
PO Box 586
Portland, Maine 04112-0586
Board of Environmental Protection case numbers L-24441-24-A-Z; L-24441-TF-B-Z
FOR CLERK REFERENCE ONLY
