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

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 . . .

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.

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.