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.

Postcard depicting the Great Northern paper mill in East Millinocket (top) and the Mt. Katahdin skyline (bottom).

With the close of this legislative session looming, the LePage administration and proponents in the Legislature are continuing their push for passage of L.D. 1567—“Resolve, To Authorize the State To Acquire a Landfill in the Town of East Millinocket.”  Pursuant to this resolve, the State Planning Office (SPO) would have the authority to acquire ownership (either by purchase or donation) of a leaking landfill that has limited remaining capacity, annual operating costs of $250,000, contamination issues, and closure costs estimated at $17 million and rising.

The administration apparently considers granting the State the ability to acquire the Dolby landfill absolutely essential to finding a buyer for two currently shut down pulp and paper mills in East Millinocket and Millinocket.  Brookfield Asset Management, LLC, through its subsidiary Katahdin Paper Company, owns the mills and the Dolby landfill, which has been accepting waste from those mill operations for over thirty years.  Brookfield claims it cannot find a buyer for the mills because no prospective buyer wants anything to do with the landfill.  Not surprising considering that any new owner would acquire the $17 million liability associated with the Dolby landfill.  Including the state.

Although that liability has effectively deterred private buyers, it has not given the state nearly enough pause, especially considering that, as currently configured, L.D. 1567 works a violation of the state Constitution.  Article 9, section 14 of the Maine Constitution limits the State’s ability to create a debt or liability in excess of $2 million by requiring that two-thirds of the House and Senate and a majority of the electorate approve the bond issuance needed to fund the liability.

Accordingly, my op-ed in the Portland Press Herald highlighted both the amount of the liability attached to the Dolby landfill and the corresponding Constitutional issue.  That op-ed was succeeded by my written request to the Attorney General’s office for an opinion on the constitutionality of L.D. 1567.  Those efforts prompted further discussion in Senate debate and ultimately resulted in Senators Dill and Schneider formally requesting that the Attorney General render an opinion on the constitutionality of L.D. 1567.

While these efforts and continuing press coverage have succeeded in creating additional debate, the bill’s proponents recently amended the text of L.D. 1567 to classify it as emergency legislation in attempt to speed up its prospective implementation.  Such textual changes do not nullify the Constitutional issues presented by L.D. 1567.  Accordingly, we encourage people to contact their Senators to ensure that L.D. 1567 does not take affect until it has undergone the process mandated by the Constitution.  A proposal that enables Brookfield to dump its liability for the Dolby landfill, allows a new owner to purchase the mills for one dollar without acquiring any liability associated with the Dolby Landfill, and authorizes the SPO to accept on behalf of the State of Maine Brookfield’s generous donation of a leaking landfill and all the liability that accompanies its ownership most certainly deserves the additional consideration and process that the Constitution imposes.   Additional process that the LePage administration called for back in February.

At a time when Maine’s new governor is trying to revive the false choice of business versus the environment, the Oakhurst Dairy company is proving that what’s good for the environment is also good for business.  As shown in this recent article, this family-owned business, based in Portland, ME, is not just talking the talk but walking the walk when it comes to environmentally-conscious businesses.  From committing to selling only artificial growth hormone-free milk to installing solar panels to heat water used to clean milk cases to its delivery fleet of trucks that use biodiesel and aerodynamic skirts to increase fuel efficiency, Oakhurst Dairy has significantly reduced the amount of oil and diesel fuel it otherwise would have used, and in doing so, reaped significant savings.  As one might expect of a company that started 90 years ago as a small dairy in Portland, Oakhurst takes the long view when it comes to how best to keep its niche in the market, and that’s good for Maine.

The state of Maine is steadily moving forward in its quest to potentially purchase an East Millinocket landfill as part of an effort to save two paper mills that are responsible for hundreds of jobs in the Katahdin region.  The State’s rationale is that in order for the mills to be acquired and reopened by a new company, the liability of the landfills that have been the recipient of waste from the mills for decades must be separated from the mills themselves.

While the intent of the State to try and resurrect the source of up to 600 jobs in the Katahdin region is a good one, this action brings to mind the old saw that “the path to hell is paved with good intentions.” If the state were to acquire the landfills, the facility’s operations and maintenance costs alone are estimated to be a minimum of $250,000 a year.  Those costs pale in comparison to the estimated $17 million to clean up and close the landfills (which only have a few years of capacity left) and does not include costs to clean up groundwater or soils contaminated by more than two decades of unpermitted landfill leachate (liquid that moves through or drains from the landfill) that has been discharged into the groundwater and surface waters in the region, discharges that are ongoing and in violation of both state and federal laws.

CLF raised these concerns in a letter to the Legislature’s Environment and Natural Resources Committee last week, and called for the Committee to thoroughly explore the liability issues the state might incur as a result of purchasing the landfill, as well as how the State would provide funding to properly close and clean up the contamination associated with the landfill. Right now, the state has no dedicated source of funds to meet those costs. In addition, there is a potential constitutional issue concerning the State’s ability to take on such a large liability without a two-thirds vote of support in the Legislature and approval by the people.  CLF will continue to review this issue and determine whether or not action is necessary to address the issue of unpermitted discharges with the DEP and the Legislature.

After weeks of debate regarding Darryl Brown’s eligibility to serve as the commissioner of Maine’s Department of Environmental Protection, on April 27 Attorney General William Schneider issued a letter stating that Brown was likely unqualified to serve in the position under Maine law. Following that announcement, Brown resigned.

CLF and others voiced their concerns about a potential conflict of interest that would affect Brown’s ability to continue serving in the post in the months following his appointment in February. Maine law states that anyone who has received at least 10 percent of their income over the past two years from work for clients under the Clean Water Act is ineligible to serve as DEP commissioner. Brown is the founder and sole shareholder of Main-Land Development Consultants, an engineering and land-use planning firm, and had originally stated at his confirmation hearing in January that between 25 and 35 percent of his firm’s work fell into that category, but later insisted that he did not exceed the 10 percent threshold. Schneider’s letter stated that if Brown couldn’t produce documents demonstrating that his income did not exceed the 10 percent threshold, he would be ineligible for the position. The Attorney General also made clear that any such documents submitted by Brown would be subject to Maine’s Freedom of Access Act.  Claiming that the potential release of documents could potentially hurt his business, Brown’s attorney had sought assurances that the documents would not be released.  Brown’s resignation followed shortly after the Attorney General’s letter was released.

Brown’s resignation must have been anticipated by the LePage Administration, which immediately announced that Brown would become the director of the State Planning Office, which LePage has previously indicated he intends to do away with by 2012.  Jim Brooks, currently the director of the DEP’s Bureau of Air Quality, will serve as acting DEP commissioner.

At the end of the day Wednesday, Attorney General William Schneider sent a response to the Emily Cain, Democratic minority leader, declining her request that the Attorney General prepare an opinion regarding the continued authority and eligibility of Darryl Brown to serve as Commissioner of the DEP.  The Attorney General stated that because his office was involved in the preparation of the response by Commissioner Brown to the EPA with respect to federal law and that “[a]ny final response to the EPA will be made through this office,” it was not appropriate for the AG’s office to issue a separate opinion.

It’s difficult to ascertain what the Attorney General actually is saying here.  If he is saying that the AG’s office will be independently reviewing Commissioner Brown’s response, and particularly the facts as to whether more than 10 percent of Brown’s income over the past two years was derived from work for clients under the Clean Water Act, before it goes to the EPA in order to determine compliance with Maine law, then we applaud him for finally addressing this issue.  If, as suggested in yesterday’s article in the Portland Press Herald, he is saying that the Attorney General’s office will be acting as Mr. Brown’s lawyer in responding to the petition filed with the EPA, then we strongly disagree with that course of action.  At a minimum, the Attorney General should clarify exactly what role his office will play.

It is our opinion that the proper course for the Attorney General is to conduct a detailed analysis of the facts that Mr. Brown collects and presents concerning his income sources over the last two years.  If that review indicates that he has not exceeded the 10 percent threshold, then Mr. Brown should continue with the important work of the DEP.  But if the data shows that he crossed that threshold, then Mr. Brown should resign.  In either case, a speedy and transparent resolution of this issue is paramount.

ME DEP Commissioner Darryl Brown (Photo credit: maine.gov)

CLF is once again calling for increased transparency from the LePage Administration, this time with regard to whether or not Darryl Brown, who was confirmed by the Senate last month as Governor LePage’s appointment to be commissioner of Maine’s Department of Environmental Protection (DEP), is eligible to stay in his current position according to State and federal law.

Brown is the founder and remains the sole shareholder of an engineering and land-use planning firm that assists developers and industry obtain permits from the DEP and EPA.   At his confirmation hearing in January, Brown said that between 25 and 35 percent of his firm’s work involved DEP permitting.  Under state law, (38 MRSA $ 341-A(3)(B)), anyone who has received at least 10 percent of their income in the last two years directly or indirectly from projects permitted under the Clean Water Act are not eligible to serve as DEP commissioner.

The question of Mr. Brown’s eligibility to serve as Commissioner was first raised by former CLF staff attorney Steve Hinchman on behalf of the Androscoggin River Alliance in a February 7 petition filed with the EPA under a CWA provision that is similar, although not as broad, as the Maine statute.  Importantly though, both provisions use the same 10 percent threshold test.  EPA has requested that Mr. Brown provide information by April 15 to determine whether that threshold has been crossed.  Maine’s Attorney General and the Governor’s office have refused to say whether they have even met to discuss the situation, never mind how they intend to resolve it.  As an independent Constitutional officer, CLF has called upon the Attorney General’s office to provide a formal opinion as to how the law applies to Commissioner Brown and whether he has crossed the 10 percent threshold in the last two years, a call formally echoed by the House Democrats on April 5.

CLF will continue to push for a fair and speedy resolution of the issue, whatever that resolution might be.  CLF is not pushing this issue in order to disqualify Commissioner Brown nor to make a statement as to his performance as Commissioner.  Rather, we’re pushing to make sure that the law is interpreted and applied correctly.

It is possible that even though 25-35 percent of Brown’s was related to DEP permitting work but only 10 percent of his work was related to Clean Water Act permits.  But there will be no confidence in such a conclusion until a transparent and thorough analysis is conducted by the lawyers for all of Maine’s people, the Attorney General.