Stop-work petition withdrawn after wind project halted due to low energy prices

Terry Karkos/Sun Journal

Board of Environmental Protection Executive Analyst Peggy Bensinger, left, speaks at a BEP hearing in Augusta on Thursday. The board met to discuss a petition to halt construction of a $120 million wind farm in Roxbury. Listening, right, is board Chairman Sue Lessard.

- Terry Karkos/Sun Journal
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Terry Karkos/Sun Journal

Maine Board of Environmental Protection office specialist Terry Hanson, left, and Maine Department of Environmental Protection Commissioner David Littell listen to Portland lawyer Rufus E. Brown at a BEP hearing in Augusta on Thursday. Brown testified on behalf of his clients, Concerned Citizens to Save Roxbury and other appellants, on why they believe the DEP erred in granting wind-power developer Record Hill Wind a permit in August to begin construction of a $120 million, 22-turbine wind farm in Roxbury. 

- Terry Karkos/Sun Journal
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AUGUSTA — A petition filed last month with the Maine Board of Environmental Protection to halt construction of a $120 million wind farm in Roxbury was withdrawn Thursday at a board hearing at the Holiday Inn Ground Round restaurant.

The reason?

Developer Record Hill Wind LLC had already decided last month to stop construction, citing low energy prices that will delay by a year the purchase of 22 wind turbines. Construction will resume after mud season in 2010.

That made the petition moot, lawyers for both the appellants and Record Hill Wind told board members.

Rather than work through the winter as planned, Record Hill Wind principals Angus King and Robert Gardiner will have heavy equipment contractor Sargent Corp. of Bangor finish building the road and complete all necessary environmental and erosion controls to put the project to bed by mid-December.

However, because the appellants — Concerned Citizens to Save Roxbury, and others — claim that the Maine Department of Environmental Protection erred on Aug. 20 when it approved a permit for Record Hill Wind to start construction without proving financial capacity, they asked the board to listen to their testimony through lawyer Rufus E. Brown of Portland.

Brown said there was an inconsistency in the DEP's final order: One section states the DEP ruled that Record Hill Wind demonstrated adequate financial capacity to comply with DEP standards, provided it submitted final evidence of that capacity "prior to the start of construction." Another section states that Record Hill Wind isn't required to submit the evidence until "prior to the start of operation."

After the appellants pointed this out, the DEP notified the developer that it intended to have Record Hill Wind demonstrate financial capacity prior to construction, Brown said.

Record Hill Wind answered with an Aug. 27 letter from Northern Trust of Chicago, stating that an unnamed owner of Record Hill Wind LLC had unencumbered cash and securities at the bank in excess of $150 million. That settled the issue, from the DEP's perspective.

According to its Web site, Record Hill Wind comprises wind power developers King and Gardiner of Brunswick-based Independence Wind, and Wagner Forest Management, which owns and manages the Roxbury land on which the wind farm is being erected.

However, Brown said the bank letter is merely a statement that some investor in Record Hill Wind has more than $150 million in the bank, and should not be construed as a commitment to use that money for the project.

"Our view is that if you look at the statute and regulations, there has to be some offering that someone has made a commitment," Brown said. "To date, there is no commitment by anybody inside or outside of Record Hill Wind."

Following a lack of questions from the board to Brown, Record Hill Wind lawyer Juliette Browne of Portland testified, saying that her client believes the bank letter to be sufficient because a controlling majority owner has more than $150 million in assets.

Given the delay in additional construction, Browne said Record Hill Wind would provide to the board and Brown additional evidence of financial capacity 15 days prior to the resumption of construction.

Brown wanted 60 days, but Browne argued that 21 days would suffice.

The hearing ended without action by the board, which is expected to hear a more extensive appeal of the DEP permit by Concerned Citizens later this winter or early spring.

Afterward, the two lawyers worked out an arrangement to have Concerned Citizens principals meet on the project site next week with Record Hill officials and a DEP third-party inspector to ensure proper erosion and environmental controls are followed.

tkarkos@sunjournal.com