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Tuesday, Sept. 29, 1:12 p.m.

3 area residents appeal MDEP’s January decision on Juniper Ridge expansion

Last Tuesday, a week of research and rewrites ended for three opponents of an area landfill, but their sense of anticipation did not wane.

The citizens, one from Orono and two from Old Town, all separately appealed the Maine Department of Environmental Protection’s granting of a public benefit determination that allows the private operators of state-owned Juniper Ridge Landfill to apply for expansion.

The landfill, which is on the Old Town-Alton border, currently stretches across more than 4 million cubic yards and is permitted to cover 10 million. The MDEP said in January that Casella Waste Systems Inc. can apply to nearly double that.

The chair of the Board of Environmental Protection informed residents on March 20 that Thomas Doyle, who represents Casella, was challenging each of the appeals, saying they had no standing in the matter.

Over the next week, the residents scoured the Internet for legal cases that might set precedent to allow their appeals. Two cited an agreement between Casella and Old Town they say precluded them from going to their local government for help and argued that they should be granted standing so their voices could be heard in the matter.

Now Edward Spencer and Charles Leithiser, both of Old Town, and Sam Hunting of Orono are waiting to hear what BEP chair Susan Lessard, who is also Hampden’s town manager, decides in whether they have standing.

“It sounds like she’s probably going to decide next week,” Leithiser said on Saturday.

Firm footing?

Leithiser’s, Spencer’s and Hunting’s appeals were written individually and overlap at times, reinforcing evidence of community unease with Casella and Juniper Ridge.

However, Doyle, who declined to speak to a reporter, alleges none of the three has the legal right to appeal the MDEP’s granting of the PBD.

His motion to dismiss the appeals based on lack of standing, provided by Leithiser, alleges the three residents are not harmed by the actual granting of the PBD. Doyle argues they are basing their appeals on effects already felt as a result of the landfill or effects they expect to result from an expansion, which they are not allowed to cite as reasons for appealing the PBD decision.

The decision to allow Casella to submit an application to expand Juniper Ridge in the future, Doyle says, hurts no one.

“It’s just an impossible standard,” Spencer said on Thursday. “If we have to have been injured already then we lose our right to appeal it, to challenge it, and that’s an important part of our democracy.”

“What that really means is the damage has to be done before you can seek a remedy,” Leithiser said.

An appeal for math

While Spencer and Hunting appealed the decision as a whole, Leithiser chose to ask the BEP to consider reducing the number of cubic yards for which Casella can apply to expand Juniper Ridge.

“The numbers in the initial public benefit determination just don’t add up,” he said.

Leithiser’s initial letter to the BEP details existing landfill capacity throughout the state to support his argument that the state does not need as much additional space at Juniper Ridge as it thinks.

Doyle alleges that since Leithiser did not challenge the validity of the decision but rather sought to change its terms, he does not have standing, because only the MDEP commissioner, Patricia Aho, can do so.

Leithiser argues that the wording of the statute Doyle cites simply creates an enforceable way for the commissioner to alter the terms of a prior decision but does not preclude Maine residents from seeking to do so as well.

At the end of 2009, a Solid Waste Generation and Disposal Capacity Report determined that Maine would need 24.4 million cubic yards of landfill space to accommodate the state’s waste for the next 20 years.

In Leithiser’s letter, he adds the existing capacity at Juniper Ridge at the end of 2011 — approximately 5.5 million cubic yards by his measurement — to the existing capacity at Crossroads Landfill in Norridgewock, seven municipal solid waste landfills and two municipal solid waste process residue landfills in the state.

When that total is subtracted from the projected need of 24.4 million cubic yards, a need of approximately 4.3 million cubic yards is unmet, much less than the 9.35 million-cubic-yard expansion Casella is able to apply for under the PBD decision.

“The numbers simply do not support the need to approve more than twice the amount of space necessary to meet the state’s capacity needs for nearly double the long-term,” Leithiser wrote.

An appeal for safety

Hunting appealed the decision as a whole, but when compared to the others, his letter has a narrower focus.

Hunting lives on Main Street, also known as Route 2, in downtown Orono. His appeal says trucks headed to Juniper Ridge have ill effects on driver and pedestrian safety, especially at the intersection of Main Street and Bennoch Road, which trucks pass through en route to the landfill. He expects those issues could only worsen.

“I just picture one of those things tipping over in the intersection,” Hunting said on Wednesday. “Right next to five food establishments, right? Right in downtown Orono. … It’s just waiting to happen.”

In his appeal, Hunting described the perceived effect of those trucks on Orono.

“The loaded trash trucks headed north to JRL, and the ‘wheels up’ trash trucks … create noise, fumes, stench, and vibration, all of which impact my quality of life, ability to attract tenants, and property values,” Hunting wrote.

“I am also an Orono taxpayer, and some portion of my taxes goes to the periodic street repairs required by the constant traffic of these heavy trucks,” he wrote. “I cross and re-cross Route 2 several times a week, risking injury (or worse) if the brakes on a trash truck fail, or a driver is inattentive.”

In addressing Hunting’s appeal, Doyle wrote that since the weight limit on Interstate 95 increased from 80,000 to 100,000 pounds in 2011, fewer trucks travel on Route 2.

“Furthermore, given his home’s distance from the landfill, any impact he might experience from this traffic is no different [from] the impact experienced by the general public,” Doyle wrote.

In Hunting’s response, he wrote that “mere proximity does not necessarily determine environmental impact,” saying trucks don’t always stay on the interstate. If they don’t, Route 2 is a logical route for trucks headed to or coming from Juniper Ridge.

“Mr. Doyle’s statement is again false in fact: Main Street in Orono is Maine State Route 2 and a major artery,” Hunting wrote.

An appeal for legislation

Spencer appealed the decision as a whole, urging the BEP to examine the MDEP’s reasoning in light of pending legislation, among other arguments.

He cites LD 879, a bill at the time of his letter that has since become law, which allows landfills licensed after Sept. 30, 1989, to expand, including Crossroads.

He also cites LD 1683, which is still pending but would partially fund the operation of Dolby Landfill in East Millinocket.

“The Governor’s office is justifiably concerned that without expansion at other landfills, Casella would have a near monopoly on waste disposal in Maine,” Spencer wrote.

Dolby is attached to the Millinocket and East Millinocket paper mills, much like Juniper Ridge is attached to the Old Town paper mill. Casella’s contract to operate Juniper Ridge was brokered after the state accepted responsibility for the landfill in an unsuccessful effort to keep Georgia Pacific, the former operator of the Old Town mill, in the state.

According to the Bangor Daily News, the Millinocket and East Millinocket mills were purchased by Cate Street Capital last fall, but the State Planning Office has yet to find a company to either purchase or operate the landfill after accepting responsibility for it last year in its effort to reopen the shuttered mills.

LD 1278 “would impose new fees on [construction and demolition debris] and CDD fuel residues,” Spencer wrote. “At present there is no fee on CDD, but passage of this bill will change that and may lead to a decrease in materials going to JRL.”

CDD accounts for a major portion of Juniper Ridge’s waste stream.

The governor also signed this bill into law after Spencer submitted his letter. It levies a fee of $1 per ton of CDD landfilled in 2013 and raises that fee to $2 per ton on Jan. 1, 2014.

“I am asking that the Board reject the Commissioner’s Partial Approval of the PBD at this time,” Spencer wrote. “When we look to the many possibilities for reducing need for Waste Space it is obviously premature to say that there is currently a need for Expansion at Juniper Ridge.”

City government unable to help?

In response to Spencer’s appeal, Doyle cites the Host Community Agreement that Spencer says bars Old Town from objecting to any perceived malfeasance occurring at Juniper Ridge.

The stipulation in the agreement, signed Dec. 8, 2005, says “the obligation of Casella to make the payments or provide the benefits … shall be suspended in the event that, and for so long as, the City … appeals or funds a third party to appeal … any federal, state or local permit, license, approval or determination including, but not limited to, any of the foregoing issued by DEP to the State and/or Casella relating to the Landfill or any expansion thereof.”

Doyle contests Spencer’s allegation that he is denied assistance from his local government in contesting activities at the landfill and writes that, “in addition to being outside the record and irrelevant to the issue of standing, any provisions of the Host Community Agreement that might attach financial considerations to certain actions do not prohibit the City’s legal right to challenge the Determination if the City’s leaders wish to do so.”

Old Town City Manager William Mayo said he shares Spencer’s interpretation of the agreement.

Mayo said Friday that Spencer was correct in saying the section of the Host Community Agreement detailing suspension of benefits, which Casella pays to the city to offset any negative effect of it being within the city, does keep city leaders from objecting to Casella’s actions. Leithiser also brought up the clause in his appeal.

“I would tend to agree with the residents. The city, if we contest anything … that obstructs the landfill from expanding or anything like that, they can suspend the payments,” Mayo said. “We’re pretty cautious about taking a stance against what they’re doing.”

In 2010, Old Town’s former city manager said Casella pays the city approximately $1 million each year in host benefits.

Lessard has been the town manager of Hampden since 2000, which is home to the now-closed Pine Tree Landfill — another Casella holding. She told The Maine Campus in 2010 that Hampden received an approximate total of $8.3 million in host benefits dating back to 2002.

After the landfill was closed and covered in 2010, Lessard told the Bangor Daily News she was relieved it would cease being a hot-button issue in town.

“It has been a source of community angst for years, so in that sense, I’m happy to see it closed,” she told the newspaper in April 2010. “But the story is far from over.”

As chair, Lessard will act alone to decide the question of standing. If she denies it to any of the three, he can appeal her decision to the entire board, and if she grants standing to any of the three, his original appeal will be heard by the entire board. Regardless of the decision, the residents do not expect the process to end with Lessard.

With three appeals out, Leithiser, Hunting and Spencer were all hopeful their appeals would be considered. Spencer was especially optimistic.

“This whole process has injured us, and it just demonstrates that any expansion in the future will,” he said.