Sometimes, the failure to act is as harmful as an act itself.

Yesterday, I sent a letter to Patricia Aho, Commissioner of the Maine Department of Environmental Protection, whose recent failure to act on water certification standards for Flagstaff Lake has resulted in the state losing its ability to have any say in the matter for the next 25 years. You can access a copy of that letter here, or read it in full below.

Documents obtained through a Maine Freedom of Access Act (FOAA) request now lead us to conclude one thing: we believe Aho’s failure to act was intentional. Consider the following two points, outlined in the letter:

• Aho had been briefed on the status of the water quality certification application for the Flagstaff Storage Project by the applicant and its attorney and had met with Mr. Mullen, the head of the lead bureau on that application;
• Aho and her staff were aware of the options available to the State with respect to the application.

As stated in the letter, “this makes Ms. DePoy-Warren’s statements of December 9, 2011 that the failure to act on the application in a timely manner was due to reorganization efforts and changed assignments at best completely uninformed and at worst deliberately false… Even more troubling is the conclusion one can logically draw” that Aho “made the decision to not act on the application and thereby waive the State’s rights to certify whether the Flagstaff Storage Project’s new license meets our water quality standards.”

This deliberate inaction is troubling. As I said in a recent joint statement, it not only hurts Maine people who use Flagstaff Lake, but also “raises real concerns about the DEP’s ability and willingness to exercise Maine’s rights to control, manage and protect our natural resources.”

For the full letter, keep reading.

January 3rd, 2011

Patricia Aho, Commissioner January 3, 2012
Maine Department of Environmental Protection
17 State House Station
Augusta, ME 04333-0017

Re: Flagstaff Storage Project #L-19313-32-G-N

Dear Commissioner Aho:

We have finished a review of records provided by your Department pursuant to a December 9, 2011, Freedom of Access Act request from our organization, the Conservation Law Foundation.  That review leads us to conclude that the Department, under your direction, intentionally waived the State’s rights under section 401 of the Clean Water Act, 33 U.S.C. § 1341(a), to certify that the relicensing of Florida Power & Light’s Flagstaff Storage Project meets Maine’s water quality standards.  That conclusion is contrary to the assertions of the Department’s spokeswoman, Ms. DePoy-Warren, who publicly stated that the failure to act in a timely manner on the FPL application was neither intentional nor insidious.  While we will never definitively know about the latter, as set forth below, we believe the failure to act was certainly intentional.

As you know, for the past several years, a new license for the Flagstaff Storage Project, #L-19313-32-G-N, had been stayed by FERC based on the denial of the Section 401 water quality certification by the Board of Environmental Protection in 2004, a decision appealed and upheld by the Maine Law Court in 2007. Since then, FPL had filed an application for a water quality certification for the Flagstaff Storage Project as a placeholder while it worked with the Department staff to identify a means to meet the water quality standards identified by the Board in its original order.  The Clean Water Act provides that if an application for water quality certification is not acted upon within a year of its submittal, the State is deemed to waive its right to make or to withhold such a certification. To avoid such a waiver, the Department’s practice had been to request FPL to withdraw and refile the application. Failing that, the Department would deny the application.  FPL, as it had with its other hydroelectric projects, would withdraw its application for this project and then re-file, thereby “re-starting the clock.”  (This is a practice followed not just by FPL but by most other owners of hydropower projects seeking water quality certification from Maine.)  Thus, FPL filed its water quality certification application for the Flagstaff Storage Project with the Department on November 15, 2009, then withdrew and re-filed its application on November 16, 2010.

As you also know, action by the Department on water quality certifications applications had for many years been coordinated by a longtime Department employee, Dana Murch.  Mr. Murch announced that he would retire at the end of the summer in 2011 and documents produced in response to our FOAA request establish that he began preparing for the transfer of his responsibilities to other employees at the Department in early summer.  Specifically, in June, Mr. Murch and senior managers at the Department, including Michael Mullen, current head of the Department’s Land and Water Bureau, scheduled a series of meetings to discuss the transition of his work load. These meetings specifically included discussion of the Flagstaff Storage Project water quality certification application. Indeed, Mr Murch prepared a memorandum to the file dated July 13, 2011, concerning the history and status of the Flagstaff Storage Project and specifically noting that “Unless DEP acts to approve or deny the pending application for water quality certification on or before November 15, 2011, certification will be deemed waived by operation of law.”

On June 17, 2011, you were named acting Commissioner of the Department, subsequently nominated to take that position permanently on September 9, 2011 and confirmed on September 28, 2011 by the Senate. The documents produced by the Department in response to our FOAA request establish that shortly after you were named acting Commissioner, Pierce Atwood’s Matt Manahan, a partner at your former law firm and FPL’s attorney, contacted you to discuss FPL’s Flagstaff and Brassua Storage Projects and requested a meeting with you, Mr. Murch and representatives of FPL.  A meeting that you organized was set for August 5, 2011 at your office. On the following Monday, August 8, 2011, you sent an email to Mr. Mullen (delivered at 8:11 a.m. and read at 8:40 a.m.) stating the following – “Hi Mike – We need to talk about Flagstaff and Brassawa [sic] when you get a chance.  Thanks!  Pattie.”

A subsequent memorandum from Mr. Murch dated August 12, 2011 to DEP staff, including Mr. Mullen (who was by then overseeing all staffing of hydropower projects for the Department) attached a spreadsheet that listed the staff that would be overseeing the various hydropower projects in the state.  Ms. Dawn Hallowell was listed as being responsible for the Flagstaff Storage Project but it is our understanding that, at the direction of the Commissioner’s office, Ms. Hallowell never received that file.

Thus, by the time that Mr. Murch retired on August 31, 2011, the documents strongly support the following: you had been briefed on the status of the water quality certification application for the Flagstaff Storage Project by the applicant and its attorney and had met with Mr. Mullen, the head of the lead bureau on that application; and that you and your staff were aware of the options available to the State with respect to the application.  This makes Ms. DuPoy-Warren’s statements of December 9, 2011 that the failure to act on the application in a timely manner was due to reorganization efforts and changed assignments at best completely uninformed and at worst deliberately false.

Even more troubling is the conclusion one can logically draw that after you met with the FPL and its attorney, you made the decision to not act on the application and thereby waive the State’s rights to certify whether the Flagstaff Storage Project’s new license meets our water quality standards.  While the Department is legally authorized to make such a decision under the Clean Water Act, the manner in which this decision was made, particularly after the State had invested significant resources over the last 7 years in defending the right to determine when a project does or does not meet our water quality standards, and the subsequent response by the Department when the waiver came to light, is unacceptable.

We feel strongly that the documents we have seen to date support our conclusion.  If, however, we have not reviewed all of the relevant documents or there are other facts we are not aware of, we would be most interested in meeting with you to discuss them.  If we are wrong and this was indeed a case of a blown deadline, then the Department should be aggressively acting to ensure that FERC condition the license for the Flagstaff Storage Project to ensure that Maine’s water quality standards are met and instituting procedures to prevent such failures in the future.  If our current understanding of the situation does not change, we believe that at a minimum you should clarify that the Department decision to waive its rights to determine if the Flagstaff Storage Project met Maine’s water quality standards was in fact intentional and should include an apology to the stakeholders who were counting on the State to exercise its rights under the Clean Water Act.

Respectfully,
Sean Mahoney
Vice President and Director
CLF Maine

cc: Peter J. Carney

Maine has a new motto: We can get there from here.

As Washington has failed to advance clean energy legislation, and Governor LePage has expressed open hostility to the state’s renewable portfolio standards (RPS), I am reminded of that famous quip from Bert and I: “You can’t get they-ah from he-ah.” For Mainers concerned about Maine’s dependence on expensive, dirty fuels, and sincere in their interest in building a sustainable economy for the years to come, this quip has become a frustrating reality – a reality we can change, with your help.

CLF is a part of a coalition of groups from the private and nonprofit sectors, the Maine Citizens For Clean Energy, www.cleaneenergymaine.org,  that is working to enact a law by public referendum that would increase the amount of renewable energy generated in the state and increase our ability to implement energy efficiency measures that would reduce our reliance on oil and other fossil fuels, saving us money and helping our environment at the same time.

To do this, we need to get the referendum  on the ballot for state-wide vote in November 2012 by gathering more than 70,000 signatures from Maine voters by January 2012. The signs are strong: we have met with considerable early success, are ahead of our goals, and see evidence of strong support from Maine residents.

This year, on November 8^th, 28,000 Maine voters registered their interest in putting a citizen’s initiative on next year’s ballot to expand clean energy in Maine. The coalition, as Environment Maine said in their press release, had set a goal of 20,000 only two weeks before. In our current effort to collect 70,000 signatures, we are well ahead of our goals.

This should not be surprising, as polls of Maine residents have consistently shown strong support for energy efficiency. One poll, conducted by NRDC, showed “Nearly 80% of voters back the use and expansion of energy efficiency technologies.” Another, conducted by Portland-based Critical Insights and discussed by NRCM, “shows that Maine voters overwhelming oppose specific environmental rollback proposals now before the Maine Legislature.”

Groups in Maine have heard and are working to promote the interest of Maine voters. Already, CLF is working with a coalition of Maine businesses, workers, health professionals, citizens and public interest groups. We are joined by – Reed & Reed, general contractor, NRCM, and the Maine Renewable Energy Association, among others.

The message Maine voters have delivered so far is clear: We can get there from here.  We need your help.  Please sign a petition supporting the referendum or better yet, volunteer to gather signatures in your community.

This ballot initiative comes at a crucial time and allows for a broad discussion by the people of Maine as to the value of renewable and energy efficiency. If successful, the ballot measure would require that the current RPS be increased by 20 percent by 2020 and would ensure adequate funding from utilities for all cost-effective efficiency measures.

If you’d like to help ensure the passage of this ballot initiative, you can do two things.

First, help us gather signatures. If you haven’t signed the petition, please do so now.

And, secondly, if you’re willing to volunteer – more than willing to provide you with all you’ll need. Simply get in touch with us here at our Portland, Maine, office.

Help us, and our broad coalition, to deliver to Maine what voters want: expanded energy efficiency and, with it, a clean, clear path forward.

Millinocket, Maine – a town struggling to reshape its economy – deserves good jobs. Here at CLF, we watch and hope for the success of the East Millinocket mill and the eventual opening of the Millinocket mill.  However, at a closing price of $17 million, and at $250,000 for annual operations, the state’s recent acquisition of the Dolby landfill in East Millinocket has delivered these jobs at a price that is too high and set a precedent that is too dangerous to accept.

In an Op/Ed that appeared recently in the Bangor Daily News, I argued the importance of understanding all of the costs associated with the Dolby landfill. Let’s quickly review those costs.

First, a majority of the costs will be borne by all Maine taxpayers, regardless of the success of the mills. The Dolby landfill costs $250,000 per year to operate and $17 million to close. The state is now the sole entity legally obligated to cover those costs. While the Legislature appears poised to appropriate the necessary fund for operations (after a local town balked), no funds have been set aside for the $17 million in closure costs, nor is there any clear plan to raise those funds.

Secondly, acquisition of the Dolby landfill and its liabilities came at the cost of ignoring the Maine Constitution. Article IX of the state’s Constitution, a provision that has been in place for two centuries and is intended to keep state government from making rash decisions, was inconvenient to the timing of this particular deal. As a consequence, the administration did not even address the issue. Inconvenience is not an acceptable reason for ignoring those constitutional requirements.

Thirdly, this acquisition – the state’s second in the past few years – further challenges the state’s solid waste policy. The state has a statutory goal of reducing, reusing or recycling waste. The recent acquisition of another landfill in Old Town has created a new conflict between the landfills themselves, which must compete for solid waste to generate revenue to pay for operating and closure costs.

This either means that the administration’s claim that the Dolby landfill would be expanded to help pay for costs is highly unlikely — why would anyone pay to truck garbage to Millinocket if there is capacity in Old Town? — or it means that the application of the Old Town landfill needs to be re-examined.

Finally, as each of these arguments suggests, there is no strategy or vision for reducing the amount of solid waste we landfill in Maine, which would save all of us money.

For more a more extensive review of the costs of the Dolby mill, read my Op/Ed in the Bangor Daily News in full. You can also read some of my other blogs on this topic:

• LePage Forges Ahead in Quest for Troubled Landfill
• What’s next for the Dolby landfill?
• Maine’s Acquisition of Dolby Landfill Sets Dangerous Precedent

The Land Use Regulatory Commission has begun deliberations on the Bowers Mountain Wind project, which CLF supported as an intervener.  Sean Mahoney presented a closing statement in support of the project  (Sean Mahoney Closing Statement 10-5-11) which built upon the testimony of Abigail Krich (Abigail Krich Direct Testimony 6-10-11 and Dr. Cameron Wake (Dr. Cameron Wake Direct Testimony 6-10-11).  As with many wind power projects in Maine today, the biggest issue for LURC to resolve is the project’s impact on scenic resources in the area.  The testimony of Roger Milliken (Roger Milliken Direct Testimony 6-10-11) spoke to the push and pull of that issue eloquently.  A decision from LURC on the project is expected sometime in early November.

The Great Northern Paper Mill in East Millinocket (top).

Anxious to get two paper mills in northern Maine operating again, the State of Maine agreed to take on the liability of the landfill that has taken solid wastes from those facilities for decades.  Inconveniently, taking on that liability, which is at least $17 million, without having the money in hand to pay for it runs afoul of the Maine Constitution.

CLF is supportive of efforts to get the mills in Millinocket and East Millinocket operating again, but is concerned about the precedent the State is setting.  The issue is not just one of meeting the requirements of the Constitution, but also how the State intends to manage landfills in Maine.

The State’s (and thus, Maine taxpayers’) willingness to take on the liability for the costs of closing and cleaning up a landfill even though the current owner is solvent and has the financial capacity to do so is irresponsible from a fiscal and a policy viewpoint. CLF raised this issue when the Maine Legislature first authorized the State to acquire the landfill, again when the ultimate deal was announced and most recently in connection with the applications filed with the Maine Department of Environmental Protection necessary for the completion of the deal.

CLF wants to ensure that the proper handling of the landfill, which continues to discharge pollutants into nearby waters and may have contaminated the ground underneath, doesn’t get forsaken in the political wheeling and dealing surrounding the sale of the paper mills. Stay tuned as we continue to try to hold the Lepage administration to its professed adherence to the Constitution and fiscal conservatism.

(photo credit: USGS)

With summer drawing to a close, it’s now clear that over the next 15 months until the 2012 elections many public figures are going to be existing in a fact-free zone.   Thus, we are beginning to hear again the denials of the fact that our earth is getting warmer as a result primarily of human activity and that the results of that warming will be wide-ranging. We can expect more severe weather events (droughts, hurricanes, tornadoes), rising water temperatures, declining Arctic sea ice, and disappearing glaciers, as well as impacts to a broad range of human and natural systems, including famine, displacement from flooding and desertification, and shrinking supplies of basic commodities.  It’s surprising that some would deny this, because we have been seeing all of these changes for some years now.

Our friends at the Union of Concerned Scientists have compiled a helpful and thoughtful document that brings together the assessment of the National Academy of Sciences and statement of 18 other scientific organizations regarding climate science.  Hopefully these sober and clear analyses from the best scientists in the world can help keep the conversation about climate change based on facts and evidence, not hyperboles and anecdotes.  Climate change is occurring, and we need our leaders to focus on what to do about it, not how to ignore it. In these days of 24/7 exposure, where “fair and balanced” means giving equal weight to opinions that represent less than 1% as to ones that represent 99%, and where it seems that if one shouts something loud enough and often enough it’s eventually accepted as credible, we need to remember not only that there is no substitute for good science but also that there is no excuse for giving a free pass to those in the fact-free zone.

Norm Olsen, Maine's now-former commissioner of marine resources.

As if the life and times in Augusta haven’t already been strange enough, the third of Governor Paul LePage’s cabinet members tendered his resignation to the Governor Wednesday. What makes the departure of Norm Olsen, the now-former commissioner of the Department of Marine Resources, more notable is the manner in which he left. While Philip Congdon was forced to resign as commissioner of the Department of Economic and Community Development after disparaging Mainers from Washington and Aroostook counties and Darryl Brown was forced to resign as commissioner of the Department of Environmental Protection because of Maine’s conflicts of interest law, Olsen’s resignation caught many off guard- but not for long. Although his formal resignation was apparently conveyed to the Governor in a one-line, handwritten note delivered after a meeting with the Governor, Olsen made his reasons abundantly clear in a bomb dropped, er, document released yesterday. The document provides a view on how Maine’s chief executive conducts business by a man described at this past year’s Fishermen’s Forum as the man “in charge” of Maine’s marine affairs. The document also provides a few other nuggets, including the Governor’s determination that there would be:

• No further collaboration with the City of Portland to develop measures to return our groundfish boats to Maine, despite the work already done to secure the support of visiting Commerce Department officials. Portland was against him, LePage said, and we will not work with that city. Rather than work with Portland, he said, we’ll build a new port somewhere.
• No further collaboration with the Director of the federal National Marine Fisheries Service to secure emergency federal assistance that could help return the fleet to Maine.
• No consideration of measures to properly and prudently manage the heavily overcapitalized shrimp fishery so that Maine could gain the most value-added from this resource.
• No collaboration with the federal government to jointly manage resources in federal waters. Instead, he instructed his deputy legal counsel to find a way for Maine to supersede federal authority outside the three-mile limit.

The LePage administration is sure to rebut Mr. Olsen’s statement. But regardless of how this saga ends, it is, to say the least, another interesting chapter in the story of the LePage administration.  There is undoubtedly more to come.

We wrote about the Legislature’s wrongheaded – fically and environmentally -  pursuit to acquire the leaking and contaminated Dolby landfill two weeks ago. Despite the opposition of several representatives and senators, and a request by Senators Cynthia Dill and Elizabeth Schneider for an opinion from Attorney General William Schneider on the constitutionality of the law, the bill passed and on June 17, Governor LePage signed into law, LD 1567—Resolve, To Authorize the State to Acquire a Landfill in the Town of East Millinocket. If and when the Katahdin mill’s owner Brookfield lines up a buyer for the mills, which currently appears to be International Grand Investors Corp., a Delaware corporation owned by Chinese investors in Taiwan, the state now has the authority to bring the deal to fruition by accepting, on behalf of the State of Maine, Brookfield’s generous donation of the Dolby landfill.

Despite the Dolby landfill’s projected $250,000 in annual operating costs and an estimated $17 million in closure and cleanup costs, the Attorney General’s office concluded on its response to the Senators’ request for a legal opinion  that LD 1567 does not trigger the $2 million debt limitation threshold contained in Article IX, section 14 of the Maine Constitution. Although that result appears counterintuitive given the staggering costs associated with the Dolby landfill, the AG’s office reasons that “LD 1567 does not commit the State to the assumption of any particular debts or liabilities associated with the landfill” and suggests that the SPO can contract away some or all of that liability. Unfortunately, the version of LD 1567 that was passed and signed into law did not incorporate the Attorney General’s suggestion that LD 1567 be amended to require that any contract entered into by the SPO to acquire the Dolby landfill contain a clause limiting the State’s liability for pre-acquisition operation of the landfill.

Although the authority granted under LD 1567 apparently does not trigger Article IX, section 14, the AG’s office concedes that the terms of Article IX, section 14 “will be relevant to the terms of [an] agreement” by which the State takes title to Dolby. Thus, Article IX, section 14 remains part of the conversation. But the extent to which it does remains unclear. To that end, legislators have requested an additional legal opinion from the AG’s office regarding the relevancy of Article IX, section 14 to any contract transferring ownership of the Dolby landfill to the State. Given that Brookfield is just as steadfast in its resolve to dump the landfill as the State is in its resolve to acquire the landfill, it is hard to fathom that Brookfield would agree to remain responsible for the majority of the $17 million in closure and cleanup costs or to indemnify the State for pre-acquisition liabilities associated with the landfill. Would a contract that failed to limit the State’s liability for the Dolby landfill to less than $2 million be subject to approval by two-thirds of the Legislature and a popular vote? Stay tuned . . .

East End Beach. Photo credit: bvohra, flickr

Last night, the Portland City Council took a big step forward in addressing one of the city’s dirtiest little secrets – the discharge of literally hundreds of millions of gallons of untreated sewage and stormwater into Casco Bay every year.

This discharge is a result of stormwater overwhelming the city’s sewer system. In order to relieve that pressure, the city had a system of combined sewer overflows, or CSOs, that would bypass the normal treatment facility in the East End and discharge sewage and stormwater directly into Casco Bay. That toxic brew has closed shellfish harvesting areas in Casco Bay and kept the East End beach closed on many a day.

Since 1993, the city has been obligated by an administrative consent agreement with the Department of Environmental Protection to remove the CSOs, but for many years has dragged its feet. However, in recent years, with a mix of state and federal funding, the city has made significant progress, and has changed the focus from removing the CSOs to providing greater storage for the first flush of the stormwater/sewage brew so that it can be treated after the storm event and capacity opens back up at the East End treatment facility.

To achieve that goal will be expensive – current estimates are that the remaining work on CSOs will exceed $125 million and other related work could bring the price tag up to $170 million. City staff had recommended that work be spread out over 25 years; however, after testimony by CLF and others, including the Casco Baykeeper and Friends of Casco Bay, City Council rejected that notion and adopted the 15-year schedule that CLF had recommended. And that is a good result for the health of Casco Bay.