" Don’t expect protection " (continued) BY ALEX IRVINE

DEPARTMENT OF ECONOMIC PROTECTION

Even when a Maine company does get fined, the DEP often issues statements in support of the company. The Conservation Law Foundation’s Roger Fleming finds them typically more "sympathetic to companies’ reasons for violations" than to the public’s interest in clean air and water. Here are three recent examples.

• In January of 2002, the Penobscot Energy Recovery Company (PERC) was slapped with a $57,000 fine for approximately 300 violations of its Clean Air Act permit. DEP air quality enforcement manager Kurt Tidd was quoted in the Bangor Daily News saying that the number of violations wasn’t important "because some of them lasted only a minute." He went on to say that PERC was "one of the better" incinerators he’d worked with.

• Early this year, when the Phoenix reported that the Portland Water District was in for a fine and consent agreement (see "What if...," Jan. 9, by Alex Irvine), the DEP was more forgiving of the district’s problems than the district’s own engineers were; at the time, DEP director of water resources regulation Brian Kavanah said that the state had been keeping an eye on the East End wastewater plant since before 1998, but didn’t want to take enforcement action because they didn’t want to burden the plant with a fine while the district was spending so much money on upgrades. In fact, according to plant engineer Michael Greene, DEP only stepped in to protect the water district when the CLF and the Friends of Casco Bay threatened court action.

• During consideration of the controversial West Old Town landfill (see "Dumping Ground," April 2, by Alex Irvine), the DEP looked at the decidedly checkered environmental record of Casella Waste Systems and decided that despite the company’s nearly unbroken string of court actions wherever they’d done business before — and recent large fines for PERC and MERC, two of Casella’s other concerns in Maine — "there is no reason to withhold this license due to Casella’s civil or criminal record."

PAPERING OVER PROBLEMS

Of course, the Casella deal was protecting paper jobs — at least over the short term — and as any Mainer with two working brain hemispheres knows, ordinary thinking about public accountability doesn’t seem to apply when it comes to Governor Baldacci and the paper industry. The latest example of this tendency came in April, when Baldacci and DEP diverted $800,000 of money from hazardous-waste remediation bonds to maintenance and cleanup at the Lincoln and Brewer mills abandoned by Eastern Fine Paper. Provisions in the bond appear to be worded broadly enough that this decision was legal once the governor issued an emergency decree, which he did, arguing that if chemicals at the mills weren’t kept at a certain temperature an environmental catastrophe was in the offing.

The decree wasn’t so much aimed at protecting the Penobscot River — since both mills had been befouling the Penobscot for years and been cited for numerous discharge violations — as it was geared toward, according a press release, "[allowing] the sites to be more marketable to remaining prospective buyers."

In the end, a buyer was found, but only after the state spent $800,000 of the people’s money sweetening the deal. "We were hoping to" restore that bond money in the next bond package, Garrett says, but the prospects for this year’s bond package are unclear. And although there is a provision in the sale agreement to repay the bond money, the payment is years down the road and it’s uncertain whether the repayment will go back into the remediation fund from which the original $800,000 was diverted.

More troublingly, a current DEP staffer alleges that DEP hazardous-materials responder John Varney was told by one of his superiors, David Sait, "to NOT put anything in writing" during the cleanup "since the State was actively seeking a buyer and didn’t want any potentially embarrassing documents to surface at an inopportune time."

Sait denies the allegation, saying that he "never did anything to shield, cover up, whatever, activities that I was involved in."

"When we got into this," Varney says, "it was a very sensitive situation, with rumors of potential buyers, the governor’s office involved, as well as the very sensitive issue of all these paper workers potentially having to pursue new careers. So we were on tenuous ground, but I wouldn’t say we were told not to write anything down because of what we might find."

After hearing the allegation read to him, Varney responds, "It wasn’t to spare ourselves embarrassment or to hide anything from potential buyers."

What wasn’t?

He gives a short laugh. "As I said, it was a sensitive situation for us, so we were kind of feeling along."

In the end, Varney says, the response effort at the Lincoln and Brewer mills was "state government at its best," preventing hazardous discharges into the Penobscot and getting people back to work. It also must be said, though, that the diversion of bond money put into limbo 17 existing remediation projects, ranging from cleanup of a tetrachloroethylene-contaminated well at a school — which will now use filters for the foreseeable future — to removal of sludge leaking out of waste lagoons at an abandoned tannery in Paris. DEP’s Mark Hyland, who first suggested the bond money diversion (from his own program), isn’t sure whether the possible discharges from the mills would have been worse than the damage that will occur at the 17 deferred cleanup sites. Most of the sites are stabilized, he says, but "there are pluses and minuses" to the decision to divert bond money from its intended purpose.

Pluses and minuses, give and take — the basic dynamic of environmental policy in the real world. Is Maine’s DEP any different in this regard than departments in other states? NELC’s Josh Kratka thinks so. "I’m not going to say that Maine is worse than Louisiana or Texas," he says, "but compared to places like Washington, California, most of the other New England states, I was really shocked at the real lack of concern for environmental impacts."

THE BUCK STOPS WITH GALLAGHER

According to the Department Web site, the DEP "was founded as a regulatory entity to administer programs and enforce laws. Our job is to clean up, control, and ultimately to prevent pollution." But Gallagher sees her department’s role a little differently; according to her, DEP exists to carry out the legislature’s will.

In this, she finds common ground with Maine Pulp and Paper’s environmental affairs director Michael Barden, himself a former DEP official, who says that DEP should "reflect what the policy from the governor’s office is going to be." Barden and Gallagher also agree that the department’s political appointees can and should pick and choose when to abide by the findings of its scientific staff because DEP technical personnel, in Barden’s words, "have no accountability to the public." Gallagher repeats this sentiment almost word for word.

If this abundance of agreement between the state’s top environmental official and its most prominent paper-industry environmental lobbyist seems a little off-kilter to you, well, Maine green groups are equally nonplussed. Gallagher’s predecessors Ned Sullivan and Martha Kirkpatrick both drew respectful assessment from environmental advocates contacted for this story, who noted their independence and willingness to arrive at scientifically sound decisions. Portland attorney and former Board of Environmental Protection member Andrew Cadot says that during his term on the BEP, he "was very impressed with Sullivan and Kirkpatrick," and with Governor King for listening to them when they took a strong stand.

In contrast, Cadot says, Gallagher "bends very easily to the governor’s pressures."

Environment Maine’s Matthew Davis agrees, characterizing Gallagher as "a foot soldier for the governor."

Maine Rivers executive director Naomi Schalit says, "We’ve been deeply disappointed at how the DEP’s political appointees have behaved. I believe this is a substantive difference from the previous administration."

The two current DEP employees who agreed to talk to the Phoenix via email were even less complimentary. According to one, Gallagher is "not viewed as particularly protective of the environment"; this same staffer laments "the increasing political considerations given to staff casework since Dawn came on." The second is even more blunt: "Comm. Gallagher IS the Governor’s office. She is perceived by many as a ‘yes’ person whose job is to do the Governor’s bidding by pushing projects through, regardless of DEP’s past practice or what DEP rules or State statutes require. Examples of this include the Flagstaff Lake decision, the Old Town landfill decision, and the Mars Hill windpower decision. Never before have the people of Maine had to rely to this extent on the Board of Environmental Protection to overturn bad environmental decisions by the Department."

As DEP enforcement director Jim Dusch notes, there are "inherent tensions" between DEP scientific/technical staff and the political appointees who direct them. Still, discontent about the way the DEP conducts itself spreads beyond disgruntled employees and green groups with axes to grind; Maine Pulp and Paper’s Michael Barden complained to the Phoenix about DEP’s "tendency to adopt policy through discussion internally" without "going through a public rule-making process." Adding to the chorus, a lawyer with a prominent Portland firm says the common refrain heard in their offices when dealing with the DEP is "Don’t they read their own fucking rules?"