The first time a wind direction is mentioned in a December 21, 2010 email from Warren Brown to James Cassida, the Director ofDEP Division of Land Resource Regulation. (Pet. App. 61.) In that email.Mr. Brown reiterated that the "increased wind shear" caused the violation of the noise rule and explained that said "increased wind shear" may happen with "winds ranging from SSE-NW." (Pet. App. 61.) A better understanding of what factors into an "increased wind shear" can be derived from an email James Cassida sent to FIW on January 10,2011, where Mr. Cassida explained that "[i]t is [the DEP's] expectation that all wind shear conditions are not a problem but at some point, as the wind shear coefficient raises, the level of wind shear present does affect the sound produced at the protected locations." (pet. App. 64.) (emphasis added) Mr. Cassida then clarified that the level of wind shear should be measured by "alpha coefficient," which should be used by FIW "as the trigger for a reduced operations mode of operations." With respect to wind direction, Mr. Cassida stated unequivocally:
While it is commonly understood that wind shear is most possible when winds are from the south southwest in the golf of Maine it is also possible that wind shear can be present under other wind directions as well. As a result of this, it is not acceptable that the trigger simply be based on wind directions alone.(pet. App. 64.)
On March 9, 20 II, the DEP sent another letter to FIW, in which it emphasized that "vertical and directional wind shear directly contributed to non-compliance with the noise standards" and that "the range of wind shear conditions that affects sound power output" need to be addressed to resolve "the compliance issue." (pet. App. 70.) (emphasis added) In response to FIW's suggestion that the revised condition compliance order require noise reduction operations when the wind is blowing in the south southwesterly direction only, the DEP responded that "[ w ]hile the Department appreciates the fact that FIW can demonstrate compliance under some conditions that include vertical and directional wind shear it is incumbent upon FIW to demonstrate compliance under all operational conditions, including those present on July 17th & 18th and similar periods." (Pet. App. 71.)
The relevant evidence in the record before the agency include the following: I) FIW was likely to exceed the required sound compliance level of 45 dBA when there was significant vertical and directional wind shear; and 2) not all vertical and directional shears appear to be a problem, but they become a problem when the wind shear coefficient rises. However, the record is quite unclear as to what other factors, or precise meteorological conditions, affect the wind shear coefficient.
To justify Commissioner Aho's decision to limit noise reduction operations to the exact meteorological conditions of July 17 and 18,2010, i.e., when the wind direction is between 200° and 250°, the DEP now argues that the only instance offormal fmding of non-compliance involved SSW winds-the meteorological conditions "where wind shear is most likely to occur." (Br. of Resp. 10.) The DEP characterizes the record as being "ambiguous" as to the effect of non-SSW winds, and argues that the Court should affirm Commissioner Aho's decision as she was basing her decision on what was "certain," as opposed to what was "uncertain." (Br. of Resp. 12.) But this is where the DEP's argument founders.
Although the record indicates that it may be "uncertain" what factors affect the wind shear coefficient (including possibly non-SSW wind direction), equally "uncertain" is the correlation between the SSW wind direction and the increase in the level of wind shear. By contrast, there is clear and un-rebutted evidence in the record that wind direction is not the main causative factor, and should not therefore be "the trigger." Winds blowing from other directions could be just as harmful as SSW winds. The Court concludes that there was no competent evidence supporting Commissioner Aho's decision to limit the CCO's regulation to only one factor- wind direction between 200° and 250°- because that factor might, or might not, cause the wind shear coefficient to rise.
Moreover, the CCO itself does not even attempt to explain the reasoning behind Commissioner Aho's decision, not only as to why she chose to focus only on wind direction, but also as to why she declined the recommendation of DEP staff that Appendix A was essential, in the wake of the violations, to maintain ongoing compliance with the noise rule. The DEP's explanation now is that she based her decision on what was "certain," as opposed to what was "uncertain" and neither Respondent addresses in any direct fashion Commissioner Aho's decision to reject Appendix A. But the arguments regarding "certainty" are being proffered post hoc by the DEP's legal counsel, and such rationalizations are not ones the Court is allowed to accept. See Burlington TruckLines, Inc. v. United States, 371 U.S. 156, 168 (1962). See also Michael Shane Christopher v. Smithkline Beecham, Corp., 132 S. Ct. 2156, 2166 (2012) (stating that the traditional call for deference to an agency's interpretation of its regulation may be overridden when such an interpretation is "a post hoc rationalization advanced by an agency seeking to defend past agency action against attack." (internal citation omitted)).
For the foregoing reasons, the Court concludes that, on the basis of the evidence before her, Commissioner Aho could not have rationally adopted a CCO that addresses only the speculative factor of wind direction to the exclusion of the one clear, relevant and uncontested causative factor: wind shear of a certain coefficient. The Court thereby reverses the Decision of the Department of Environmental Protection dated June 30, 2011, and remands this matter to the Department for issuance of a CCO consistent with the fmdings of the Department's expert. With respect to the Commissioner's decision to reject, without explanation, the recommendation of the Department and the Attorney General's Office to require Appendix A to be part of the CCO, that issue will be remanded to the Department. While there could be a very good reason for her decision in this
Because the Court finds that Commissioner Aho had no rational basis or relevant evidence before her which justified the issuance of this CCO (Condition Compliance Order) in that it simply limited noise reduction requirements to the exact meteorological conditions of July 17 and 18, 2010, the Court reverses her decision and remands this matter to the DEP for redetermination that the cause of the violation was significant vertical and directional wind shear, and to issue a CCO that is capable of fully remedying the violation which the SEP found occurred. Because of the passage of time, the Department is obviously free to rely upon other relevant data or evidence that has been generated or obtained since the issuance of the CCO in crafting the new CCO.
In addition, while the Court has not made a finding of bias, it recognizes the difficult issues created by Commissioner Aho's continuing participation in this matter in light of her former affiliation with FIW's law firm, Pierce Atwood, LLC. That issue, which could have been avoided, has created an enormous amount of mistrust by the Neighbors as to whether their grievances can receive fair treatment by the Commissioner and the Department. While this case might not present the "extraordinary circumstances" which must exist for a Court to find "bias" as that term has been defined by the Law Court, Commissioner Aho's continuing participation in deciding upon operational and complaint protocols could be viewed as antithetical to the common notions of impartiality which Maine citizens understandably expect from decision-makers in Maine agencies. As this matter us being remanded to the Department, the Court trusts that the Department will consider the wisdom of her continued participation in this process as the Department reformulates the CCO consistent with this Order, and as it provides the Department's rationale for the complaint protocol it established or maintains in response to the violations found by the Department to have occurred.
The entry will be:
The Court DENIES FIW's motion to dismiss the Petition on mootness grounds.
The Court DENIES the Petitioners' claim that their rights to equal protection and their First Amendment rights have been violated.
The Court REVERSES the Decision of the Department of Environmental Protection dated June 30, 2011, and REMANDS this matter to the Department for issuance of a CCO consistent with the findings of the Department's expert that the violation occurred as a result of "significant vertical and directional wind shear" and is further instructed to require an operational protocol which would prevent further violations of the noise rules. Finally, the Court REMANDS this matter to the Department to issue further findings of fact, or otherwise articulate its rationale as to the complaint protocol implemented or maintained after the Department found violation of the noise standards by FIW. Unless otherwise agreed by the parties, the Department shall have 90 days from the date of this order to issue the findings or explanation regarding the ongoing complaint protocol.