Dumping ground (continued) BY ALEX IRVINE

Notes taken at a meeting among state officials on April 29 also indicate that the state was reluctant to go to an RFP, or a formal process of requesting competitive bids to operate the landfill — and according to Governor Baldacci’s chief legal counsel Kurt Adams, they didn’t have to. But within a week, the Bangor Daily News had gotten wind of the story, and State Senator Tom Sawyer, himself a former landfill operator, was beginning to voice strong concerns.

State officials were beginning to look at the problem of getting legislative approval for the landfill’s purchase and re-permitting, and Sawyer wrote a letter to Baldacci’s communications director Lee Umphrey, Kurt Adams, and Cashman, expressing deep reservations about the state’s actions so far and suggesting that proper operation of a landfill would include "healthy tension with the State and DEP."

Sawyer followed this up with a May 10 email to DEP Bureau of Remediation and Waste Management Director David Lennett. "I’ve heard a rumor," he wrote, "that Jack is planning on having the state ‘own’ the facility, and negotiate with a private operator (no RFP process!) to enjoy ‘super’ operation rights (if it looks like a commercial landfill . . . it is!). If that’s the course we’re on . . . I can predict some interesting debates with Joanne, Beth, etc., when we allow a commercial landfill to be created without changing state law."

Lennett forwarded the message to DEP commissioner Dawn Gallagher, who wrote back immediately, copying Kurt Adams and Jack Cashman, "I don’t think we should answer this email until we meet with the gov’s office."

If Sawyer had seen this email, it would no doubt have strengthened his concerns — reiterated in a March 23 interview with the Phoenix — that state ownership of the Old Town landfill would make it very difficult for the DEP to do its job independently. Baldacci and Cashman have been at great pains to proclaim the DEP’s independence in their public statements regarding the Old Town landfill, but correspondence from the negotiations — and her own actions — hint at the political pressure Gallagher is under.

State senior policy advisor Alan Stearns writes to various state officials on December 1 that G-P and Casella "are operating under the assumption of a DEP permit by December 31st. I trust that Dawn and Jack are talking to manage that issue."

Why would the state’s director of economic development and its commissioner of environmental protection be "talking to manage" a landfill-expansion permit? Stearns was answering an email from the commissioner of the Maine Department of Transportation, David A. Cole, who was nettled by the traffic complaints of local communities. "I’m not sure the impacted communities understand the role of this landfill deal in saving jobs at G-P in Old Town," he writes. "We need to strategize on this early this week."

Joanne Twomey relates the story of what happened when she tried to force adjudicatory hearings on the project that weren’t provided for under the "expedited" timetable. She got a resolution through the legislative committee requiring hearings on the dump, and then "leadership was pressured by the governor’s office," she says. "The day after the vote, I started hearing that it was dead on arrival. They were going to try to send it back to the Legislative Council for another vote."

Twomey went to the governor’s office to stand up for her resolution. "They said they were upset because they have a deadline. I said, what about the process? They said, it’s about jobs. It’s not about jobs. The State of Maine doesn’t have solid-waste policies. If we had done it properly, the people would have had 45 days to have a hearing, and that right was taken away."

The possibility of compromise arrived in the person of DEP commissioner Dawn Gallagher, who according to Twomey "saw I was upset, and she said she had a right to call a public hearing." After a day of meetings between Gallagher and other state officials, Twomey was told "that if I pulled my bill, they would give the people of Old Town a public hearing over two days. So I called We the People," an Old Town citizen group, who chose the hearing over the bill.

Hearings were to take place on March 29 and 30. "I think Dawn Gallagher is doing the very best she can," Twomey says, "but there’s no doubt that the politics are in place here."

We the People’s Stan Levitsky corroborates Twomey’s narrative, and adds that after granting the hearing, Gallagher informed We the People that she was specifically inviting representatives from the Municipal Review Committee, the consortium of 160 municipalities served by the PERC incinerator, to testify at the hearings. The MRC on March 25 published a strongly pro-landfill op-ed in the Bangor Daily News, and has written to Gallagher pressuring her to approve the project — even though in correspondence with Jack Cashman last year the group’s executive director Greg Lounder expressed misgivings about the state’s handling of the deal.

MRC board member Susan Lessard, the town manager of Hampden, wrote to Gallagher on March 8 claiming that "the DEP is stepping considerably outside its regulatory bounds" in its assessment of Casella’s permit application. "I would strongly urge you to reconsider the position of the department," Lessard finishes.

Given these incidents, the people of Maine might be forgiven for a little cynicism toward an op-ed Jack Cashman drafted on February 16, in which he claimed that paper-mill jobs "do not factor into the [DEP] permit application," and that "neither I nor my agency has anything to say as to whether the permit is issued."

Considering the evidence, that doesn’t come close to passing the straight-face test.

Notes from a May 12 "all hands meeting" indicate that "Casella, G-P will lock down deal & State will do what they can." Casella also apparently "would like to review some air regs," although whether that has to do with Old Town or the environmental problems of its MERC incinerator in Biddeford is unclear. In any case, whatever the state thought about Tom Sawyer’s concerns, there is still no talk of an RFP.

Nor would there be until May 21, when an obviously annoyed Jack Cashman writes to Baldacci that "Casella was supposed to satisfy concerns of the Attorney General’s Office on Market Power issues and on process issues. They have not done their job on this. It seems we need to reopen the process and allow for competitive bids to satisfy the Attorney General."

Baldacci, Cashman, Baldacci’s chief of staff Jane Lincoln, and Assistant Counsel Chris Parr met the same day. Parr’s notes from the meeting have Baldacci saying that the "process needs to be expedited" and "Casella to be told for expedited bid process." Further down the same page of notes is a reminder to "cut cord w/Casella" (a phrase repeated exactly in Lincoln’s notes of the same meeting), followed by a note that Parr, in a conversation with attorney Juliet Brown, "specifically clarified that a bidding process as we see appropriate [emphasis in original] will occur." Brown was at the time representing Waste Management, who later chose not to make a bid.

Later the same day, Parr records a conversation with John Delahanty, "representing G-P," in which they "discussed present circumstances & JEB’s [yep, that’s Governor Baldacci] commitment to making deal work to acquire OT fill to save jobs."

In addition to his day job as a partner at Pierce Atwood, who represented Georgia-Pacific throughout the negotiations, Delahanty is also a registered lobbyist for Casella.

Once legislators and the Attorney General’s office had bird-dogged the state into reluctantly undertaking an RFP, Assistant AG Francis Ackerman, the office’s anti-trust specialist and co-author of a January 2003 report detailing the unhealthy consolidation and lack of competition in Maine’s solid-waste industry, called Ralph Townsend, his collaborator on that 2003 report. Townsend is an economics professor at the University of Maine with particular expertise in the solid-waste industry.

In a May 27 memo distributed to just about every state official involved in the RFP, Ackerman ticked off 12 suggestions and concerns Townsend had for the bid process. Prominent among them were suggestions that the state "should go through the licensing process in advance of the bid process. Otherwise, there will be a huge advantage for solid-waste players already active in the State which have experience of the permitting process, namely, Casella and Waste Management Inc."; that the state should try to generate revenue from the landfill; and that tipping fees should not be indexed to the Consumer Price Index (CPI) because "those fees reflect expenses that remain constant and are not themselves affected by inflation," meaning that a CPI-indexed fee schedule will raise the fees faster than Casella’s costs, inflating company profits at its clients’ (i.e., Maine’s) expense.

None of these recommendations were followed in the final Operating Services Agreement. The landfill has yet to be licensed; the state will never see a dollar; and all fees are indexed to the CPI.

Why? Because Georgia-Pacific and Casella had the state over a barrel, and all three parties knew it. Correspondence among state officials over the summer and fall of 2003 indicates the kind of pressure they felt, and their frustration dealing with lawyers for G-P and Casella. "Pierce Atwood was very unpleasant to deal with," Adams wrote on September 22, adding that "they have a history of overreaching."

Particularly, perhaps, when one of their lawyers is representing G-P and lobbying for Casella.