Welcome to Omaha? This is the first year that the College World Series will be played at the new TD Ameritrade Park. Business owners are concerned that the event will be remembered instead by the smell of sewage. (Photo credit: Stadium Journey)

On Monday, June 20, the Portland City Council will vote on a proposal for the Tier III projects of its Combined Sewer Overflow Abatement Plan. Pursuant to this vote, the city will decide how long it wants to continue discharging sewage and other pollutants from industrial wastewater and stormwater runoff into Portland’s waterways through its combined sewer overflows (CSOs).

Portland’s CSO abatement project originated in 1991 when the city entered into a Consent Decree with the Board of Environmental Protection to resolve the city’s ongoing violations of state and federal law through its unpermitted discharges into waterways. Under the city’s initial Master Plan, it agreed to abate discharges from 33 of its CSOs by 2008. Although 2008 has come and gone, the city is still years away from completing its CSO abatement project. More specifically, the city is debating whether Tier III of its abatement plan should be completed in 15 years or in 25 years. The project is going to cost ratepayers under either time frame, but the sooner the city abates these discharges, the sooner water quality in Portland improves and the businesses that depend upon good water quality benefit.

While it may be easy to overlook water pollution since it can be difficult to see, it is not easy to ignore the unpleasant and unmistakable stench of untreated sewage. Just ask the residents and business owners in Omaha, Nebraska, as well as the thousands of people descending upon Omaha for the college world series, which Omaha is hosting for the first time—in a brand new stadium.

Like Portland, Omaha still has a CSO system in place.  And right now, Omaha is discharging sewage into the Missouri River because the Missouri’s flooding has overwhelmed Omaha’s wastewater treatment system, just in time for “record crowds” which must reluctantly tolerate the stench.  Some business owners have expressed concern over the affect that the smell of sewage will have, but as the stadium’s marketing manager pointed out, there is not much that can be done other than “deal[ing] with it” and hoping that visitors’ lasting impression of Omaha is one of great baseball rather than the foul smell of sewage.

Fortunately for Portland, it has been spared such unfortunate circumstances—for now. But instead of just tolerating the problems caused by continued use of its CSO system, Portland should, as urged by CLF, “deal with it” by abating CSO discharges sooner rather than later, a task that the Public Works Department, through its work in recent years, has shown it is more than capable of handling.  Twenty-five years is too long to sit around holding our breath and hoping that what is happening in Omaha does not happen in Portland.

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.

Mount Hope Bay (photo credit: John McDaid)

After nearly a decade, Weaver’s Cove Energy (WCE) finally abandoned its liquefied natural gas (“LNG”) terminal project that initially had been proposed for Fall River, MA and, more recently, for the middle of Mt. Hope Bay just off the shores of Somerset, MA. This puts to an end a project that would have required massive LNG tankers to pass through dozens of miles of waters adjacent to some of New England’s most densely populated coastlines, and would have included a four-mile-long cryogenically cooled LNG pipeline through critical winter flounder spawning habitat in Mt. Hope Bay and up the mouth of a federally designated Wild & Scenic River.

Despite significant litigation, extensive public opposition, and questionable economics, WCE LNG persisted for years in its ultimately fruitless pursuit of state and federal approvals for the project. For a number of those years, CLF took a leadership role in pressing for comprehensive environmental review, calling for a regional analysis of LNG terminal siting in New England, and insisting that federal authorities take a hard look at clean energy alternatives.

CLF is proud to share this victory with the many stakeholders who worked tirelessly to protect Mount Hope Bay, Narragansett Bay, and the Taunton River –from dedicated local activist Joe Carvalho to the talented attorneys representing the City of Fall River and the Massachusetts Attorney General’s Office, and from tenacious members of Massachusetts’ Congressional delegation to former Fall River Mayor Ed Lambert who vowed “death by a thousand paper cuts” to WCE’s ill-conceived project.  Now, all of the people and natural resources that depend on these important waters no longer need to sing the “LNG Blues”!

Listen to “LNG Blues,” written and performed by local activists in Somerset, MA:

LNG Blues by conservationlawfoundation

The Boston Harbor Hotel is innovative in maintaining public access to Boston's waterfront with its beautiful and distinctive arch.

On Friday, June 10, CLF’s Boston office had the pleasure to host 10 members of the Indonesian non-profit organization Genderang Bahari (Maritime Spirit) Movement to discuss strategies for the preservation of historic harbors. The professional exchange was sponsored by the State Department’s International Visitor Leadership Program and arranged by the local nonprofit organization WorldBoston.  Members of the movement are interested in gaining ideas and insight into how to best revive the approximately 80 old harbors in Nusantara, Indonesia.

CLF’s Peter Shelley spoke to the diverse group of engineers, architects, and project managers about the strategies behind historical preservation and the role of non-profit organizations like CLF in such processes. As a way to provide context, Peter described the history of relevant land and zoning laws in America.  Our guests were understandably surprised by the fact that the heart of Boston used to be intertidal mud flats (the current location of CLF’s Boston office was actually underwater in the 1700s), and that the laws we use today to protect public lands originate from the King of England’s mandates in the colonial era. Their amazement reflected the sometimes overlooked richness of Boston’s history.

The Colonial Ordinances of 1641-1647 granted private ownership of coastal property in Massachusetts as long as the public’s historic rights to fish, fowl, and navigate coastal lands were protected and maintained. Still in effect today, the old “fish, fowl, and navigate” public rights are broadly defined to include other public benefits. As such, the state can require private developers building on the waterfront to provide bathrooms or create walkways for the general public. In fact, CLF used this concept in the 1980s to ensure that the placement of the Boston Harbor Hotel, located on Boston’s waterfront, would not obstruct public access to the waterfront – this resulted in the design and construction of the hotel’s beautiful arched dome walkway, allowing the public a gateway underneath the hotel from the street to the harbor. The Indonesian delegates, having seen the hotel and its distinctive arch, recognized the significance of this legal tool.

In his advice to the delegates, Peter Shelley emphasized the need for having compelling vision, community support, and leverage, all of which should be further supported by an economic argument. When discussing leverage, protection, and potential obstacles, the conversation always returned to money, an internationally understood incentive and potential complication. One guest revealed that his non-profit organization faces a social problem as well, because nobody seems to care about the “local people by the sea.”

After Peter finished describing the role of CLF like that of a “watchdog,” the delegates were inspired and expressed their need for an organization like CLF in Indonesia to help them preserve their historic harbors. They were enthusiastic about the initiative, collecting several different ideas of how best to proceed with their project after listening to how public property is protected in America. At the close of the meeting, Peter left them with a poignant and lasting piece of advice. He reminded them that the process of creating a successful campaign is “not easy, but it’s certainly worth fighting for.”

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.

Vermont’s Governor Shumlin announced today a new direction for the Circ Highway.  This is good news.  CLF has long supported re-thinking the Circ Highway, and focusing instead on transportation solutions that work.  As planned, the Circ is getting in the way of progress and causing too many people to be snarled in traffic and pollution.  The EPA has noted the severe damage the Circ would cause to waterways and wetlands.

CLF welcomes and encourages the Governor’s efforts.  We look forward to working with local communities and businesses to find effective, safe and lower cost solutions.  We don’t need to bust the bank, add more sprawl and dirty our streams to get around.

Unfortunately, our state and federal highway agencies also announced the completion of the final environmental review for the outdated Circ project.  We are disappointed with all the wasted money and effort spent on this outdated project.  Officials should have stopped the review before it was completed.  CLF will evaluate the final review and consider whether an appeal should be taken to Federal Court.

CLF's Peter Shelley accepts EPA's Environmental Merit Award on behalf of CLF and CRWA. (Photo credit: Emily Long)

Yesterday, CLF and the Charles River Watershed Association (CRWA)  received an Environmental Merit Award from the New England office of the U.S. EPA in recognition of their exceptional work on reducing discharge of heated water from the GenOn Kendall Cogeneration Plant (formerly known as Mirant Kendall) in Cambridge, MA. The award was presented at a ceremony at Faneuil Hall in Boston.

Led by CLF Senior Counsel Peter Shelley, the two groups and other key stakeholders, undertook five years of negotiations to reduce the massive amounts of heated water that the plant was discharging into the Charles River, killing fish and destroying the river ecosystem. As a result, in February 2011, EPA issued a new water quality permit that requires the plant to reduce its heat discharge and water withdrawal by approximately 95 percent, and to ensure that any heated discharge does not warm the river enough to cause harm. In addition, the plant will capture most of the heat generated by the plant and distribute it as steam through a new pipeline to be built across the Longfellow Bridge over the next few years, at which point the excess steam will be used to heat buildings in Boston. More >

On April 14 U.S. District Court Judge William G. Young issued a final judgment in CLF’s favor in our suit against the MassHighway Department, bringing to a close nearly five years of litigation to push the department to manage stormwater runoff from state roads that was polluting nearby waterbodies. The court found that MassDOT (which now includes MassHighway) is finally, sufficiently carrying out its obligations. As a result of CLF’s suit, MassHighway has now built new stormwater treatment measures at the three sites that were contributing to discharges that cause on occasion instream exceedance of water quality standards. In addition, it submitted a revised Storm Water Management Plan that addressed the numerous deficiencies in the original plan which the court approved. The court noted, however, that MassHighway has more work to do. MassHighway has committed to assess its storwmater impacts on over 600 locations over a five-year schedule and to install new treatment if necessary.  MassHighway will have to submit two more reports to the Court detailing its activities throughout 2011.

When CLF filed suit in 2006, MassHighway had not even obtained permit coverage for its stormwater from EPA as required under the Clean Water Act. Two years later, in 2008, Mass Highway had done nothing to comply with the federal court order to clean up three sites in Milford, Franklin and Lancaster, Massachusetts, and had not revised its statewide cleanup plan for degraded waters.  CLF took MassHighway back to court, and at a hearing in May, 2010, Judge Young called MassHighway to the mat for non-compliance with federal law and issued an order to begin the cleanup immediately. (For a more detailed history of the case click here.)

At long last, the Judge issued a final judgment in CLF’s favor. This lawsuit sets a precedent for how stormwater is managed, on MassHighway’s remaining 2,500 miles of roadways in Massachusetts and the 600+ locations throughout the state where stormwater is being dumped into degraded rivers, lakes, and streams. The true measure of our success, however, is cleaner water. One important thing to note is that Judge Young, in the court’s final judgment, explicitly said this does not preclude suits for future violations so you can be sure CLF will be closely monitoring MassHighway for years to come. Until next time…

CLF praised the Patrick Administration today for announcing its new regulations on biomass energy for Massachusetts. CLF has been instrumentally involved in the state’s  debate over biomass, helping to bridge the gap between environmental interests, forest advocates and policymakers in the state. CLF and others have fought for science-based rulemaking that would allow certain biomass projects to receive state subsidies only if they contribute to the state’s greenhouse gas reduction goals while ensuring protection of its valuable forestry resources. Read the proposed regulations in their entirety here.

“We are encouraged that the state has looked to the latest science and public input to craft these nation-leading regulations and to identify more responsible policies for biomass energy in Massachusetts,” said CLF Massachusetts Director Sue Reid. More >