The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. Docket No. AP-04-31
WE THE PEOPLE,
Petitioner, 1
1
1
v. 1
)
1
BOARD OF ENVIRONMENTAL 1
PROTECTION, et als, 1
Respondents. DECISION AND TUDGMENT
)
PAUL C. SCHROEDER, )
Petitioner, )
)
1
v. )
)
DEPARTMENT OF ENVIRONMENTAL)
PROTECTION and BOARD OF
ENVIRONMENTAL PROTECTION, )
et als,
Respondents,
The Petitioners in these consolidated appeals challenge a decision of the Board of
Environmental Protection (herein, the BEP) dated October 21, 2004, w h c h affirmed a
decision of the Commissioner of the Department of Environmental Protection (herein,
DEP) approving a license amendment w h c h was sought by the Maine State Planning
Office (herein, SPO). The license amendment approved an increase in the final elevation
and allowed additional waste streams of the West Old Town Landfill (herein, WOTL)
operation. The landfill is operated by a private contractor - Casella Waste Systems
(herein, Casella).
Petitioner WE THE PEOPLE (herein, WTP) is an unincorporated association of
individuals residing in the Old Town area who may be affected by the iancifiii
operation. Petitioner Paul C. Schroeder (herein, Schroeder) is a resident of Orono.
Casella and SPO have been granted intervener status in h s matter.
The Petitioners raise several points on these appeals. They request that the BEP
decision be vacated, that the proposed alterations in the license be considered
expansions pursuant to Maine law (thus triggering public hearings), that the BEP be
ordered to conduct further public hearings, that the Attorney General cannot represent
both BEP and SPO, and declare that the State cannot constitutionally exclude out-of-
state waste. ~chroederasks that the licensing process be recommenced from the start
and that the application be treated as one for a landfill expansion. He further asks the
court to limit the amount of construction materials which may be disposed at WOTL.'
The BEP is vested with the exclusive authority to issue licenses for solid waste
landfill facilities. 38 MRSA § 1301, et seq.; Maine Solid Waste Management Rules. The
BEP can hold public hearings as a matter of discretion on any appeal on any licensing
process. 38 MRSA S341-D(4).For hearings on new licenses or landfill expansion
applications, the BEP must hold a public hearing. 38 MRSA S1310-S(2).Expansion
applications must satisfy extensive requirements established by rule. See 06-096 CMR
400.3D(l)(d).A solid waste facility w h c h is owned and operated under the auspices of
the SPO is not considered to be a commercial waste disposal facility. 38 MRSA § 1303-
C(6)(D).
The SPO took ownershp and proprietorshp of the West Old Town Landfill in
2003, and entered into a contract with Casella to manage the facility on its behalf.
License applications and other administrative proceedings were undertaken according
to law late 2003, and public comment was duly solicited and hearings were held. The
DEP issued an order conditionally approving the license amendment w h c h is the
subject of h s appeal. Through the summer of 2004, hearings were held and the BEP
eventually voted to uphold the amendments. This Rule 80C matter followed.'
Petitioner Schroeder has filed a motion to modify the record. By agreement. the
parties have agreed to allow Schroeder to append and refer to these documents in his
brief. He has submitted a binder containing the materials to the court as part of h s
argument.
The parties agree that h s court reviews administrative decisions such as the one
before the court for violations of la.w, unauthorized action by the agency, unlawful
procedure, errors of law or bias, findings supported by the actual record, and arbitrary
or capricious action. The court defers to agencies upon technical issues and
interpretations of law which are in the unique jurisdiction and experience of the agency.
After a review of the record, the court concludes as follows:
The alterations to the license w h c h were sought in the application do not
constitute expansions pursuant to Maine law. The court concludes that expansion
ordinarily connotes a further incursions beyond the current boundary or "footprint" of
the landfill site on a horizontal plane. Whle this interpretation is not expressly stated as
such w i h n the statutes or rules, the court is satisfied that this is the appropriate
interpretation to be drawn. As the proposed amendment simply aiiows an increase in
the elevation of the landfill from 270 feet to 390 feet, no additional sub-surface
Schroeder also purports to appeal horn the decision of the DEP in this matter. As the time for
such appeals has passed, 38 MRSA $346, Schroder's appeal, as it relates to the DEP only, is
hereby dismissed.
Pleadings originally included independent claims for declaratory relief, but these claims have
been voluntarily dismissed during the pendency of this matter.
considerations are necessary. Similarly, although the increase in waste streams may
result in a faster filling of the site, they do not expand the perimeter of site as such. The
court declines to conclude that these increases in use constitute "expansions" as the
word is used as a term of art in landfill laws.
Public hearings on license expansions are discretionary - the BEP has the
authority to make t h s decision based upon the facts and circumstances of the particular
application. Public hearings should be held where there are conflicting credible
technical opinions w h c h must be resolved and w h c h would benefit from public
comment. In the instant matter, the record discloses no conflicting technical information
which could benefit from public comment. The court does not conclude, as the
Petitioners propose, that the record contains "inherent" conflicts which should trigger a
public hearing. The BEP was well within its discretion to decline to hold public
hearings3
The Attorney General's Office may represent two governmental agencies in
administrative proceedings. Additionally, no administrative agency in this proceeding
is authorized to act upon assertions of conflict of interest. Both points are matters of
well settled law.
The BEP has the authority to order conditions upon a license or license expansion
which includes future monitoring and studies. The fact that these conditions will be met
in the future - after the conditional approval of a license - does not render them ips0
facto improper or otherwise undermine the licensing process. Indeed, the existence of
such conditions insures that future compliance will be monitored and met. Any failure
to satisfy such requirements will result in action including possible loss of the license.
The extensive record in t h s matter includes evidence w h c h supports the
findings in the DEP and BEI' decisions. The evidence includes reference to grourld
water flow, ground water quality, wetlands, wildlife, and similar concerns. The
decisions g v e considerable attention to hydrogeology and geology. Issues of noise,
odor, impact and traffic have been the subject of the licensing applications and review.
The Petitioners are unable to point to any particular, material finding w h c h is utterly
without support in the record.
The court is satisfied that the background information sought and obtained with
regard to Casella's proposed management of the site is more than adequate and
appropriate. The DEP's findings on civil and criminal history of the applicant are
sufficiently detailed to allow appellate review.
Petitioners argue that prohibitions on out-of-stdte waste by the State of Xaine are
unconstitutional or otherwise unlawful. The court questions whether t h s issue is
properly presented by the instant appeal. However, assuming it is.. .the court declines
to agree.
It should be noted that no requests for hearings were presented by the Petitioners.
Petitioner Schroeder seeks to supplement the record with materials w h c h were
allegedly offered and refused in the administrative proceedings below. The Petitioner
has presented the court with a large green loose leaf binder containing a multitude of
activity and transaction reports generated in 2003,"a snippet of a transcript of a colloquy
between Mr. Eaton and Mr. Lommler at a hearing, and an activity report from June,
2004. The court has reviewed the materials and concludes: (1)they are not particularly
illuminating on the issues before the court, and (2) they are not properly before the
court as part of the record. Although they will be received by the court as a manner of
an offer of proof, the court declines to admit them as part of the substantive record.
The court determines that the remainder of the Petitioners' arguments are
without substantive merit.
Accordingly, the Petitioners' appeals are denied, and Petitioner Schroeder's
request to supplement the record is denied.
So Ordered.
A
The Clerk may incorporate this Order upon the ocket by reference.
Dated: March 1, 2006
r n -
Z
Andr 'w M. Mead
jusTfcE, MAINE SUPERIOR COURT
The reports contain a considerable volume of data including dates, weights, types of material
and amounts charged for waste disposal.
DateFiled- 11/23/04 -
PENOBSCOT - -- Docket No. AP-2004-3 1
County Consolidated with AP-2004-32
2/16/05 Declaratory Relief Claims DISMISSED.
Action RULE 80C APPEAL
ASSIGNID TO JUSTICE ANDREW M. MEAD
CASELLA WASTE SYSTEMS, INC., and
NEWSME LANDFILL OPERATIONS, LLC.
(Intervenors 1/18/05)
WE THE PEOPLE vs. BOARD OF ENVIRONMENTAL PROTECTION
Plaintiff's Attorney Defendant's Attorney
MARCIA J. CLEVELAND, ESQ OFFICE OF THE ATTORNEY GENERAL
BOWDOIN MILL, SUITE 2Q4 6 STATE HOUSE STATION
ONE MAIN STREET AUGUSTA ME 04333-0006
TOPSHAM, ME. 04086 BY: WILLIAM H. LAUBENSTEIN, 111, AAG
FOR: STATE PLANNING OFFICE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, ME. 04333-0006
BY: JANET M. MCCLINTOCK, AAG
Date of
FOR: BOARD OF ENVIRONMENTAL PROTECTION
Entry
Petition for Review of Agency Action Pursuant to Rule 80C and Action for
Declaratory Judgment filed by Petitioner.
Notice of Assigned Justice filed. Pursuant to Administrative Order,
Single Justice Assignment of Civil Cases, Docket No. SJC-323, the above
referenced case is specially assigned to Justice Andrew M. Mead. Copy
forwarded to attorney for Plaintiff.
Notice of Appearance filed by William H. Laubenstein, 111, AAG on behalf
of Respondent, Eoard..n;fEnvironmental. Protection.
I Copy of Notice of Assigned Justice forwarded to attorney for Respondent.
Board of Environmental Protection's Motion to Dismiss filed by Respondent,
together with a proposed order.
Respondents1 Motion to Consolidate filed, together with a proposed order.
(consolidate with AP-2004-32)
Respondents' Motion to Enlarge Time to File Agency Record filed, together
with a proposed order.
Board of Environmental Protection's Motion to Dismiss filed by Respondent,
together with a proposed order.
State Planning Office's Motion to Dismiss filed, together with a proposed
order. (Joins in Motion to Dismiss filed by the Board of Environmental
Protection.)
Motion to Ictervene of Casella Waste Systems, Inc./MEWSME Landfill
Operations, LLC and Supporting Memorandum of Law filed, tcgether with a
proposed order.
Date Filed 11/23/04 PENOBSCOT Docket No. _- AP-2004-3 1
County Consolidated with AP-2004-32
2/16/05 Declaratory Relief Claims DISMISSED.
Action ,RULE 80C APPEAL
ASSIGNED TO JUSTICE ANDREW M. MEBD
CASELLA WASTE SYSTEMS, INC., and
NEWSME LANDFILL OPERATIONS, LLC.
(Intervenors 1/18/05)
1 WE THE PEOPLE VS. BOARD OF ENVIRONMENTAL PROTECTION
Plalntlff's Attorney Defe~dant's4ttorney
MARCIA J. CLEVELAND, ESQ OFFICE OF THE ATTORNEY GENERAL
BOWDOIN MILL, SUITE 204 6 STATE HOUSE STATION
ONE MAIN STREET AUGUSTA ME 04333-0006
TOPSHAM, ME. 04086 BY: WILLIAM H. LAUBENSTEIN, 111, AAG
FOR: STATE PLANNING OFFICE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, ME. 04333-0006
7 Date of
Entry
11/23/04
BY: JANET M. MCCLINTOCK, AAG
FOR: BOARD OF ENVIRONMENTAL PROTECTION
Petition for Review of Agency Action Pursuant to R - d e 80C an2 Aczlon for
Declaratory Judgment filed by PIERCE ATWOOD, LLP
ONE MONUMENT SQUARE
11/30/04 Notice of Assigned Justice fil PORTLAND, ME. 06101
Single Justice Assignment ( By: CATHERINE R. CONNORS, ESQ.
referenced case is specially 2 THOMAS R. DOYLE, ESQ.
for 'Iai FOR: CASELLA WASTE SYSTEMS, INC., and
NEWSME LANDFILL OPERATIONS, LLC
12/6/04 1
N o t t r e of Appearance filed by
-
1 of Respondent. Board of Envir
1 12/6/04 Copy of Nntice of Assigned Justice forwarded to attorney for Respondent.
Board of Environmental Protection's Motion to Dismiss filed by Respondent,
together with a proposed order.
Respondents' Motion to Consolidate filed, together with a proposed order.
(consolidate with AP-2004-32)
Respondents' Motion to Enlarge Time to File Agency Record filed, together
with a proposed order.
Board of Environmental Protection's Motion to Dismiss filed by Respondent,
together with a proposed order.
State Planning Office's Motion to Dismiss filed, together with a proposed
order. (Joins in Motion to Dismiss filed by the Board of Environmental
Protection.)
Motion to Intervene of Casella Waste Systems, Inc./MEWSME Landfill
Operations, LLC and Supporting Memorandum of Law filed, together with a
proposed order.
Date Filed 11/29/04 PENOBSCOT Docket No. AP-2004-32
County Consolidated with AP-2004-31
Action -- RULE 80C APPEAL
ASSIGNED TO JUSTICE ANDREW M. MEAD
CASELLA WASTE SYSTEMS, INC., and
NEWSME LANDFILL OPERATIONS, LLC.
(Intervenors 1/18/05)
DEPARTMENT OF ENVIRONMENTAL
PROTECTION AND BOARD OF
PAUL C. SCHROEDER vs. ENVIRONMENTAL PROTECTION
Plaintiff's Attorney Defendant's Attorney
PAUL C. SCHROEDER, Pro se OFFICE OF THE ATTORNEY GENERAL
13 HAMLIN STREET 6 STATE HOUSE STATION
ORONO, ME. 04473 AUGUSTA ME 04333-0006
BY: WILLIAM H. LAUBENSTEIN, II1,A.B.G.
1 PIERCE ATWOOD, LLP
ONE MONUMENT SQUARE
PORTLAND ME 04101
BY : CA$HER~NE R. - CONNORS , ESQ .
THOMAS R. DOYLE, ESQ.
Date of FOR: CASELLA WASTE SYSTEMS, INC., and
Entrv I NEWSME LANDFILL OPERATIONS, LLC
1
~ p p p -
Petition for Review of Agency Actions Pursuant to Maine Rules of Civil
Procedure 80C filed by Petitioner, Pro se.
Notice of Assigned Justice filed. Pursuant to Administrative Order,
Single Justice Assignment of Civil Cases, Docket No. SJC-323, the above
referenced case is specially assigned to Justice Andrew M. Mead.
/s/Margaret Gardner, Clerk. Copy forwarded to Fetltloner Fro se.
Notice of Appearance filed by William H. Laubenstein, 111, AAG on behalf
/of Respondent, Board of Environmeneal Protection.
Copy of Notice of Assigned Justice form forwarded to attorney for
Respondent.
~es~ondents' Motion to Consolidate filed, together with a proposed order.
(consolidate with AP-2004-31)
Respondents' Motion to Enlarge Time to File Agency Record filed, together
with a proposed order.
Motion to Intervene of Casella Waste Systems, Inc./NEWSME Landfill
Operations, LLC and Supporting Memorandum of Law filed, together with a
,
proposed order.
Notice of Appearance as Respondent-Defendants of Casella Waste Systems,
Inc. and NEWSME Landfill Operations, LLC filed by Catherine R. Connors,
Esq.
Motion to Consolidate of Casella Waste Systems, Inc./ NEWSME Landfill
Operations, LLC and Supporting Memorandum of Law filed, together wFth a
proposed order. (consolidate with AP-2CC4-31)