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DEP: More out-of-state waste, please

The Old Town landfill saga gets more bizarre by the day. New documents uncovered by area activist group We the People provide more examples of the DEP caving to political pressure, despite the best efforts of DEP scientific staff to make sure that the permit process followed established practice. One of the best examples: On September 3, 2003, DEP commissioner Dawn Gallagher asked DEP Site Investigation and Remediation officer Mark Hyland, "Are there other things we need to give up to ensure this gets done, but done in a way that we ensure protection of the environment?"

If you had to read that twice, youíre not the only one. Letís unpack this a little. The stateís commissioner of environmental protection is stating that her department needs to not only "ensure" a giant landfill project gets done, but is letting her staff know that they will "need to give up" the typical permitting process ó and then she tacks on some pro forma environmental sentiment that runs exactly counter to the imperative to speed up the permits and "ensure this gets done." In short, Gallagher is exhorting her staff to give up environmental review processes in order to protect the environment.

At another point during the process, DEP geologist Dick Behr records in his notes that Gallagher called public hearings on the landfill a "deal breaker" ó and Gallagher also ran over Behrís conclusion that the landfill was the cause of local deterioration in water quality, in part because of G-Pís poor management of leachates. Itís clear that the political leadership at DEP abrogated its responsibility; in Behrís notes from a December 18, 2003, meeting, he states that project movers and shakers "obviously made some decisions about the project w/o technical input" and that the DEP leadership was "going to accept this."

We the People are now suing the DEP to overturn the award of the permit, primarily on the grounds that the public should have been allowed an evidentiary hearing (which the DEP, at the urging of Casella and G-P lawyers, refused to grant). We the Peopleís lawyer Marcia Cleveland notes that the DEP has introduced a bill that would demand that vertical landfill expansions go through the same permitting process as footprint expansions ó in direct contradiction of one of their arguments against We the Peopleís request for a full hearing. "The only thing thatís preventing a hearing in this case" is the DEPís rule, Cleveland says. "If they want to change it, they could change the regulation and have done with it." Introducing a bill to do something that could be changed by administrative fiat, Cleveland says, is a political maneuver "to make them look like good guys."

State legislators have also started to take action. Senator John Martin and several representatives are carrying a bill, LD 141, that would make it illegal to import out-of-state construction and demolition (C&D) debris. This bill appears aimed squarely at the landfill deal, since the Operating Services Agreement (OSA) between Casella, the state, and Georgia-Pacific calls for Casella to manufacture biomass fuel from C&D debris and sell it to the G-P mill for their new biomass boiler at below-market rates. Maine only generates 640,000 tons of waste per year, and the West Old Town OSA calls for intake of at least 500,000 tons of waste annually; clearly if Casella isnít allowed to import out-of-state waste (under the fig leaf of Maineís ludicrous definition that waste generated anywhere else becomes in-state if itís sorted here), the company wonít make the kind of money it anticipated, and specifically it wonít be able to fulfill its boiler-fuel requirement. Indeed, Old Town resident Paul Schroeder, who is also suing the DEP over the landfill permit, calls the G-P biomass boiler "a Trojan horse for unlimited importation."

Maybe this explains why, at a January 18 meeting of the Natural Resources Committee, Stephen Davis, Director of DEPís Bureau of Remediation and Waste Management, spoke up against LD 141. You read that right: The Maine Department of Environmental Protection is opposing a bill that would reduce the amount of out-of-state waste entering Maine landfills. One possible reason for their stance is that the DEP currently charges from one to 25 dollars a ton on imported waste, depending on the kind of waste and degree of contamination, and if Casella is bringing in several hundred thousand extra tons per year ó much of it the $25-per-ton bricks-and-concrete kind ó thatís a nice charge to the DEPís Solid Waste Management Fund, which Davis helps to oversee.

Another reason is simple political horse-trading. The DEP has done everything in its power to help Casella consolidate a monopoly on Maineís solid-waste industry so far, and to keep politically valuable paper-mill jobs on life support. Why would they stop now?

DEPís official position is that they arenít taking a position. Paula Clark, Director of Solid Waste Management, says that DEPís concerns "have nothing to do with fees. Some questions have been raised about the constitutionality" of Martinís bill, she goes on, but DEP is content to let the State Planning Office "take the lead" in coordinating the executive response. This avoids the tricky situation of having the DEP actively oppose a waste-reduction bill.

"I think there are some questions about what the scope of the bill actually is," Clark adds.

In general, is the DEP in favor of reductions in out-of-state waste coming into Maine?

Clark allows that "waste reduction is a good thing," but wonít commit to any philosophical opposition to out-of-state waste. "Over the years there have been a lot of discussions about limitations on out-of-state waste in particular," she demurs, "and there are a number of legal issues that will probably come up during that discussion that may be significant."

If passed ó and thatís looking way ahead, since itís still in committee ó LD 141 will almost certainly provoke lawsuits, since it would appear to violate interstate-commerce rules with respect to commercial landfills. On the other hand, the Old Town landfill would at least nominally be owned by the state, so the Legislature might be able to get away with saying that no out-of-state C&D could go into state-owned facilities. John Martin brings a lot of clout to the floor of the State House; look for an interesting public conversation between him and the governor sometime soon.

Issue Date: February 11 - 17, 2005
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