Two years, ten years, and passengers ask the conductor:
What place is this?
Where are we now?
I am the grass.
Let me work.i
Just before 6:30 a.m. on August 14, 1989, at the Consolidated Waste Services (CWS)
facility landfill in Norridgewock, Maine, a seventy-foot tall mountain of municipal solid
waste began to move.1 Eyewitness accounts describe the landslide as lasting for about
fifteen seconds.2 A pile of garbage that had covered twelve and a half acres soon covered
twenty-five acres3 including 1400 feet of a tributary and drainageway of the Mill Stream.4
The “landfill failure” deposited municipal solid waste in the water table5 and “newly
exposed trash caused downwind odors that had not been a problem before the landslide.”6
The outer edge of the landslide came within twenty feet of the dike of the containment pond
that held all of the collected leachate for the landfill.7 Even in the dry language of an
engineering report the landslide is dramatic scene:
During the slide, the trash pile broke into large blocks. The blocks formed
progressively from west to east. The blocks moved to the southwest, west,
and northwest as they slid on the underlying clay that sheared under the
weight of the trash. When the movement stopped, vertical walled crevasses,
up to 30-feet deep were left between the blocks as they rested on a mass of
remolded clay. . . . The blocks moved as much as 180 feet when the landslide
occurred. Due to remolding, some of the clay lost 80% of its original
undrained shear strength. About 200 feet from the original toe location, the
i
From the Poem “Grass” by Carl Sandburg, 1918.
ROBERT G. GERBER, INC., REPORT OF AUGUST 1989 LANDSLIDE CWS LANDFILL NORRIDGEWOCK, MAINE (March 1991)
6,7. BOX 29 [Hereinafter Gerber Report].
2
Id. at 7.
3
CAROL CIFRINO, DIVISION OF SOLID WASTE FACILITIES REGULATION, STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL
PROTECTION, MEMORANDUM, Consolidated Waste Services, Inc. MSW Closure Plan, (July 22, 1992). BOX 29
4
Id.
5
Id.
6
ROBERT G. GERBER, INC., Supra n. 1 at 10.
7
CAROL CIFRINO, supra, n. 3 at 10.
1
remolded clay and silt began flowing over undisturbed surficial soil. Soil
flow extended as much as 400 feet beyond the original toe.8
Media coverage of the landslide was extensive.9 Citizen activists who had long
opposed the landfill operations saw the landslide as confirmation of their deep skepticism of
the ability of the landfill operators and state agencies to safely handle and oversee the
growing mountains of waste.10 The municipal officers of Norridgewock appealed to the
Maine Department of Environmental Protection (DEP) for oversight and called in its own
consulting firm to investigate.11 The engineering firm that had supervised the construction
of the municipal waste pile was called upon to explain the “failure” of the soil supporting
the municipal waste pile12 and to ameliorate the problem.13
The immediate fallout from the landslide was the temporary closure of CWS to
municipal waste from thirty area towns and the beginning of a series of hearings concerning
8
ROBERT G. GERBER, INC., Supra n. 1 at 8.
The front page of the Waterville Morning Sentinel carried a four column arial photo of the collapsed
municipal solid waste pile showing a huge yellow front end loader (that looks no larger than a Tonka toy
compared to the dramatic geography surrounding it) perched close to one of the crevices referred to in the lead
story. “A massive landslide at Consolidated Waste Services’ municipal landfill early Monday morning created
five large crevices in the landfill that exposed all sorts of once-buried household trash and filled the air with the
stench of rotting garbage.” Marie Howard, Landslide befalls CWS landfill, Earth opens; stench rises,
Waterville Morning Sentinel, August 15, 1989.
10
“Gloria Frederick, an abutting landowner, said Tuesday she was ‘devastated’ to think that CWS failed to
notify abutting property owners of what happened Monday at the site:
I was devastated to think that something that involved the health and welfare of the citizens
of Norridgewock, especially the abutting landowners, was not known. The People don’t
know what the cause was - we could have been breathing methane gas. Also, the state has
known all along that the landfill has been leaking for over two years and they never told us
for 19 months. And the town and DEP allowed CWS to use it. Where is my protection?
Id.at 8.
11
Marie Howard, Id. at 8.
12
A 28-page report and a series of Appendixes almost three times as long, conclude that “removal of stiff clay
from the toe of the landfill was the primary cause of the landslide.” ROBERT G. GERBER, INC., Supra n. 1 (noted
in cover letter to Alan Jones, P.E. the CWS site manager, dated March 28, 1991). The report adds, however,
that “Increased waste density in the landfill compounded the problem.”Id. The report goes on to include
storage of cover materials on the crest of the landfill and recent heavy rains as contributing factors. Id.
13
The Gerber Report recommended installation of piezometers, slope inclinometers and very regular
measurement of movement in the pile. ROBERT G. GERBER, INC., supra n. 1 at 24. The engineer’s report also
recommended annual measurement of waste densities along with weekly geotechnical inspections of the active
phases of CWS. Id. Another recommendation of the report was that the amount of licensed landfill space
should be increased by more “than would be necessary for a normal “fill and closeout” landfill operation. Id.
at 26.
9
2
not only the landslide incident, but an already approved expansion that was two months
from completion.14 Just over one year later, on October 15, 1990, Waste Management Inc.
“acquired all the shares of Consolidated Waste Services Inc.”15
Viewed from the present moment, the landslide and “landfill failure” at CWS in
August of 1989 came at about the midpoint of the history of commercial landfill activities in
Norridgewock, Maine. Gaining some insight into how and why this landfill was created and
what it became, both before and after the landslide, is the mission of this research paper. I
will concentrate on the legal history of the present Waste Management site in
Norridgewock. My emphasis will be on how law and agency policy at both a State and
Federal level created and drove the development of the Norridgewock landfill.16 I will
review some of the administrative law proceedings and litigation that this project has
spawned. I intend to give some description of the politics and the personalities at the local
and State level that have been a part of this ongoing legal, environmental, fiscal and political
drama.
In the end, however, what I will provide is only a thumbnail sketch of the first
twenty-five years of commercial landfill activity in Norridgewock. The limitations of my
strength, skill and experience combined with a disorganized and scattered record that at one
14
Marie Howard, supra at 1.
Letter from James T. Kilbreth, Verrill & Dana Attorneys at Law, to Steven J. Poggi, P.E., Division Manager
– Engineering, Northern New England Waste Management (April 20, 2001). Available in §2 of GEOSYNTEC
CONSULTANTS, PERMIT APPLICATION PHASE 8 EXPANSION PROJECT CROSSROADS LANDFILL NORRIDGEWOCK, MAINE, VOLUME
I OF VIII (January 2001).
16
Presently there are only two commercial secure landfills receiving municipal and special wastes. One is the
WMI facility profiled in this paper. The other is the Sawyer Environmental Services facility in Hampden,
Maine. Maine Townsman, Future of Solid Waste, April 1998, available at
http://www.memun.org/SchoolsProject/html/Resources/themes/future_solidW.htm
15
3
agency alone17 fills over fifty bushel sized cardboard boxes18 will leave plenty of work for
future researchers who, I hope, will attempt a more extensive sojourn into these materials.
In the Beginning
A March 1976 “Board Order” issued by then Board of Environmental Protection
(BEP) Commissioner William R. Adams under Title 38, Section 483 of the Maine Revised
Statutes Annotated found, among other facts, the following concerning the landfill that
Elizabeth Lappie was already operating on land she and her husband had purchased from
Willis Tryon on January 9, 1976,19 located in Norridgewock, Maine:
1. The project involves the establishment and operation of a 125-acre sanitary
landfill for disposal of 15-20 thousand tons per year of refuse from
Norridgewock and vicinity.
2.
The applicant has financial capacity and technical ability to meet air and
water pollution control standards.
3.
The applicant has not made adequate provision for solid waste disposal,
the control of offensive odors, and the securing and maintenance of sufficient and
healthful water supplies in that the operating hours for the landfill may not meet the
needs of the people and may create nuisance conditions for surrounding landowners.
4.
The applicant has not made adequate provision for traffic movement of
all types out of or into the development area in that the road becomes flooded at
times of heavy spring rains.
5.
The applicant has not made adequate provision for fitting the
development harmoniously into the existing uses, scenic character or natural
resources in the municipality or in neighboring municipalities.
6.
The proposed development will not be built on soil types which are
suitable to the nature of the undertaking in that much of the area has a high seasonal
groundwater table. Also no plans have been provided for seeding cut slopes and
ditches along the access road.
Therefore, the Board posts the application of Elizabeth Lappie to a public hearing.20
17
Maine Department of Environmental Protection files – in house and at the Maine State archives. Author
note.
18
Without an index.
19
Deed from Willis Tryon to Elizabeth Lappie, recorded in Book 860, Page 185 at the Somerset County
Registry of Deeds, Skowhegan, Maine.
20
MAINE DEP, BOARD ORDER IN THE MATTER OF ELIZABETH LAPPIE, NORRIDGEWOCK, MAINE, CONSOLIDATED SANITARY
LANDFILL, #49-2696-25220 (March 10, 1976).
4
Although the statutes and rules21 that the BEP and the staff at the DEP were working
under, and the combined understanding of solid waste issues in Maine at that time were
quite rudimentary, the five permitting concerns noted in the BEP findings above22 have
remained consistently relevant throughout the ensuing quarter century.
As this paper is being written, Waste Management Disposal Services of Maine
(MWMDS), Inc. is in the process of applying for a forty-five acre expansion of its
Norridgewock facility.23 The four million cubic foot expansion of capacity, which will cost
$17,659,798 to build,24 is described in an application that fills eight loose-leaf folders
averaging over two hundred pages each.25 Despite hundreds of pages of sometimes highly
technical text,26 index and maps, the basic concerns expressed by Commissioner Adams in
the Lappie Board Order,27 financial and technical ability, traffic, ground and surface water
pollution, odors and nuisance remain the mainstays of DEP and BEP review along with site
soil suitability.28
21
The growth and change in Maine DEP rules relating to landfills will be examined intermittently throughout
this paper. The Department rules in effect at the time of the Lappie application were DEP STATE OF MAINE,
REVISED SOLID WASTE MANAGEMENT REGULATIONS, Promulgated under Title 38, M.R.S.A. §1304, Effective
February 1, 1976. (Hereinafter February 1976 Rules).
22
Numbers two through six in MDEP BOARD ORDER, supra n. 17.
23
GEOSYNTEC CONSULTANTS, PERMIT APPLICATION PHASE 8 EXPANSION PROJECT CROSSROADS LANDFILL NORRIDGEWOCK,
MAINE, VOLUME I OF VIII, Section 24, Notice of Intent to File, January 2001. [Hereinafter, Phase 8 Application].
24
This number does not include the cost of digging up and relocating the old municipal waste landslide area,
which is presently estimated at $9,550,000. Id. at Section 3, Preliminary Cost Estimate Summary.
25
Id.generally.
26
For example, under a section of the application dealing with “Project Sequencing” there is a typical
description of drainage control: “Utilize temporary sump within Phase 8B for pumping runoff from active
excavations during excavation of Phase 8B to ECS-29.” Id. Vol. I §11sub 5(3) at 10.
27
Supra n. 17.
28
What makes a site suitable for a landfill is a fraught and complicated question. Since four of the eight
volumes in the latest WMDS application deal with concerns related to water in or on the earth (VOLUME III
HYDROGEOLOGIC REPORT, VOLUME IV GEOTECHNICAL REPORT, VOLUME V ENGINEERING AND OPERATIONS REPORT, AND
VOLUME VI STORMWATER MANAGEMENT DESIGN, PHASE 8 APPLICATION, supra n. 22) it might be assumed that a
certain type of soil is required. Indeed, in the February 1976 Rules under §406 “Site Approval” in §406.1 (a)
there are “desirable” soil requirements: “The surficial material soils, underlying the refuse to a depth of at least
5 feet shall be well graded granular material containing from 15 – 40% fines, and being relatively free of
cobbles in excess of 6 inches in diameter. February 1976 Rules at 14. This specificity has been dropped from
the latest version of these rules. Despite an expansion of the size of the rules from thirty four pages and two
one page indexes (February 1976 Rules) to two hundred and ninety two pages and four multipage indexes;
soils are dealt with in one sentence under the section dealing with general criteria; “The soils on the facility
5
The rest of this paper will investigate the origins of those concerns in federal law and
the effects that law has had on state law, regulation and municipal government as illustrated
by the evolution of the Norridgewock landfill site from a small family run open pit dump to
the State of Maine’s largest commercial landfill operated by the world’s largest commercial
waste corporation.29
A Brief History of Federal Solid Waste Legislation
Although some attempts to regulate solid waste disposal predate the turn of the
century,30 the first serious attempt by Congress to bring order and efficiency to solid waste
disposal was the Solid Waste Disposal Act of 1965.31 In language that has been carried
forward to the law’s modern incarnation32 the 1965 Act states these Congressional findings:
[T]hat the continuing technological progress and improvement in methods of
manufacture, packaging, and marketing of consumer products has resulted in
an ever-mounting increase, and in a change in the characteristics, of the mass
must be suitable for the proposed solid waste facility.” MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, SOLID
WASTE MANAGEMENT REGULATIONS, CHAPTERS 400-403, 405, 409 & 418, effective date November 2, 1998, revised
date September 6, 1999 [Hereinafter September 1999 Rules] Chapter 400, §4 (J)(1)(a).
It must be noted that even this one sentence requirement is waived for vertical expansion of all sites
licensed prior to June 29, 1987. MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, SOLID WASTE MANAGEMENT
REGULATIONS, CHAPTERS 400-406, 408 & 409, EFFECTIVE DATE MAY 24, 1989 [Hereinafter May 1989 Rules]: “A
vertical expansion of a solid waste landfill facility licensed under the Site Location and Maine Solid Waste
Laws prior to the effective date of these Rules shall be considered as having met the design requirements of the
law and regulations . . . provided that the applicant has demonstrated that the proposed expansion will not
compromise the integrity of the existing attenuation or secure facility.” May 1989 Rules, § 4 (E)(1)(I). As
noted above, the vertical expansion of the 12.5 acre CWS municipal waste pile was implicated in the Gerber
Report as a factor, along with clay soil, in the landslide less than three months after the effective date of the
May 1989 Rules. Gerber Report, supra n. 12.
29
“Waste Management, Inc. is the world’s largest publicly traded waste/recycling services company. The
company is a result of a merger between USA Waste Services, Inc. and Waste Management, Inc. With 1998
revenues of more than $12 billion . . .” NOPRP PRINCIPAL BENEFACTORS at
<http://usmayors.org/uscm/recycle/join/principa.htm> According to SEC reports, Waste Management Inc.’s
operating revenue for 1999 was $13,127,000,000 and for the year 2000 was $12,492,000,000. Income from
operations worldwide was $540,000,000 in 1999 and $1,038,000,000 in the year 2000. Waste Management,
Inc., Form 10-K, Annual Report Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934
for fiscal year ended December 31, 2000, Item 6 at 15.
30
There was for example, Federal legislation directed at the dumping of debris in rivers and harbors that
created navigational hazards; popularly known as the Refuse Act of 1899. This act is now incorporated in 33
U.S.C.A. §407 and has been used to bring action against a corporate defendant who was discharging in
compliance with the federal water quality standards of the Federal Water Pollution Control Act, 33 U.S.C.A.
§1251. U.S. v. U.S. Steel Corp, 482 F.2d 439.
31
Pub. L. 89-272, 79 Stat. 997 (Oct. 20, 1965).
32
42 USCS §6901.
6
of material discarded by the purchaser of such products;33 …that inefficient
and improper methods of disposal of solid wastes result in scenic blights,
create serious hazards to the public health, including pollution of air and
water resources, accident hazards, and increase in rodent and insect vectors of
disease, have an adverse effect on land values, create public nuisances,
otherwise interfere with community life and development;34
and then offers the purposes of the 1965 Act:
[T]o initiate and accelerate a national research and development program for
new and improved methods of proper and economic solid-waste disposal35. . .
[T]o provide technical and financial assistance to State and local
governments and interstate agencies in the planning, development, and
conduct of solid-waste disposal programs.36
Although the 1965 Act did not attempt to preempt local solid waste rules, contained
no enforcement regime and was merely a platform for a series of small grants and modest
proposals,37 its backers seemed to have both prescience and passion for the waste
management problems that were only just beginning to be felt in America.38
The next major Federal legislation dealing with solid waste was the Resource
Recovery Act of 1970.39 Spending was greatly increased40 and grants and recommended
guidelines for resource recovery systems were added.41
33
Pub. L. 89-272, 79 Stat. 997 (Oct. 20, 1965) §202 (1).
Id.at 4.
35
Id. at (b)(1).
36
Id. at (b)(2).
37
Secretary of Health, Education and Welfare authorized to spend up to $7,000,000 in fiscal 1966, Id.at §210
(a) and the Secretary of the Interior to spend $3,000,000. Id. at (b).
38
Mr. McVicker speaking during the House debate:
We are not authorizing another Federal-aid program . . . Instead, we are recognizing that our
Nation is faced with a very serious problem, a problem which will require the imagination
and hard work of people at all levels of government if the solution is to be found in time to
save the Nation from its devastating effects. Local governments are simply not equipped
financially to find this solution for themselves. THE UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, LEGAL COMPILATION, STATUTES AND LEGISLATIVE HISTORY, William D. Ruckelhaus,
Administrator (January 1973) at 62. Senator Muskie was the sponsor in the Senate. Id. at 53.
39
Pub. L. 91-512, 84 Stat. 1227 (October 26, 1970).
40
The Secretary of Health, Education and Welfare was authorized to spend $72,000,000 in the next fiscal year.
Id. at §216 (2).
41
Id. at §208 and §209.
34
7
The modern era of the Federal role in solid waste policy began with the enactment of
the Resource Conservation and Recovery Act of 1976 (RCRA).42 Five times as long as the
Resource Recovery Act of 1970 and containing three full pages of definitions,43 RCRA broke
away from the grant and encouragement approach of previous legislation and created
minimum guidelines,44 deadlines,45 and frank preemption.46 Open dumping of hazardous or
household waste was to be phased out under definite timetables.47 Intrastate48 and even
interstate49 regions were to be identified and Governors were ordered to direct State agencies
to create solid waste plans accordingly. Spending was increased to $30,000,000 for fiscal
year 1978 and $40,000,000 for fiscal year 1979.50
The increased financial aid to States went beyond money for preliminary studies and
plans and included items such as expert consultation, legal expenses and analyses of market
needs.51 In keeping with past practice and the philosophy of public/private partnerships (and
the increased commercialization of municipal waste disposal), no federal money was
available for “any acquisition or land or interest in land.”52 Agencies assisted under RCRA
42
Pub. L. 94-580, Stat. 2795 (Oct. 21, 1976).
Id. at §1004.
44
§ 1008 (a) Guidelines . . . the Administrator shall . . . provide minimum criteria to be used by the States to
define those solid waste management practices which constitute the open dumping of solid waste or hazardous
waste and are to be prohibited under title IV of this Act. Id. at §108 (a).
45
For example state Governors were given 180 days after publication of the federal guidelines to identify
“[T]he boundaries of each area within the State which, as a result or urban concentrations, geographic
conditions, markets, and other factors, is appropriate for carrying out regional solid waste management.” Id. at
§ 4006 (b).
46
“For the purposes of complying with section 4003(2) each State plan shall prohibit the establishment of open
dumps and contain a requirement that disposal of all solid waste within the State shall be in compliance with
such section 4003(2). Id. at §4004 (b). § 4003 (2) referenced above contains an absolute requirement for some
utilization of “resource recovery.” Id. §4003 (2).
47
Id. at § 4005 (c).
48
Id. at § 4006 (a).
49
Id. at § 4006 (c).
50
Id. at § 4008 (a).
51
Id. at § 4008 (a) (2) (A).
52
Id.
43
8
were directed to use existing solid waste management and facilities in compliance, “as well
as facilities proposed for construction.”53
It is beyond the scope of this paper and the need to understand the early pressures on
the State of Maine to close municipal dumps and attempt to create regional solutions to
undertake a thorough examination of the 1980 and 1984 amendments to RCRA.
Nevertheless it must be noted that the Hazardous and Solid Waste Amendments Act of 1984
expanded RCRA subtitle (C) “Hazardous Waste Management” from seven to fifty pages in
contemplation of a near total ban on land disposal of hazardous waste.54 RCRA remains the
engine that drives solid waste law nationally in its modern incarnation.55
RCRA In Maine
Investigation of the early history of RCRA’s effect on Maine’s regulatory regime is
made difficult by the record retention regime of the Maine State Archives.56 Due to space
limitations and Maine State policy, very little correspondence57 between agencies is
preserved.
In the Maine State Archive index for Environmental Protection available at the
Archive in binder form58 all correspondence between the DEP and the EPA are labeled “no
retention” and have been destroyed.59 In fact, all correspondence between the DEP and any
53
Id.
WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW, PESTICIDES AND TOXIC SUBSTANCES, West Publishing (1988) at
510.
55
42 USCS § 6901.
56
DEPARTMENT OF THE SECRETARY OF STATE, RECORDS RETENTION SCHEDULES FOR MAINE STATE GOVERNMENT,
Available at <http://www.state.me.us/sos/arc/records/schedules/agency.htm>
57
All environmental protection related out of state correspondence with other state and local agencies is
retained by the DEP for one year and then destroyed. Id. at Series 9#.
58
MAINE STATE ARCHIVES, LAND AND WATER BUREAU, page 4 of 13.
59
Id.
54
9
federal agency previously retained in the Maine State Archives for the years 1975 are either
listed as “destroyed” or not listed at all.60
The records of meetings of the Board of Environmental Protection (BEP)61 are more
extensively preserved at the Maine State Archives. Good records exist from 1973 forward62
and some records are available (in paper) from as early as 1941.63
The Maine State Library is an excellent source of newspaper clippings and case
briefs on microfiche.64 Concerned citizens and anti-landfill activists are also an excellent
source of archival material retained in personal collections.65
Regional waste system proposals66 created by industry or regional planning
commissions are also a useful source of archival type material.
While there is evidence of a move toward sanitary landfills and regional planning in
Maine State legislative documents from the early nineteen seventies,67 the legislature was
still acting under the spirit of the Resource Recovery Act of 1970. With the passage of
RCRA in October of 1976, the spirit of solid waste law and regulation changed dramatically.
In a memo dated December 10, 1976, Henry E. Warren, the Director of the Bureau
of Land Quality Control advised the BEP concerning RCRA68 which he noted was a “new
60
DEPARTMENT OF THE SECRETARY OF STATE, supra n. 56 at 8#.
The Department of Environmental Protection serves, among other functions, as the technical and fact
gathering staff to the BEP. The BEP meets bimonthly and votes on pending applications, variances and rule
changes. BEP board members are appointed by the Governor and confirmed by the Joint Standing Committee
of the Maine State Legislature having jurisdiction over natural resources. MAINE BOARD OF ENVIRONMENTAL
PROTECTION, web site, available at http://www.state.me.us/dep/bep/index.htm
62
MAINE STATE ARCHIVES, DEP BOARD MINUTES, 2512-0613 to 2512-0705.
63
Id. at 2512-0613.
64
These files go back the full twenty-six years of commercial landfill activity in Maine.
65
Richard “Jake” Sirois and Gloria Frederick of Norridgewock, Maine have been invaluable sources for this
paper.
66
S.E.A. CONSULTANTS, SOUTHERN KENNEBEC VALLEY REGIONAL PLANNING COMMISSION REPORT, REGIONAL SOLID
WASTE MANAGEMENT SYSTEM (1973). EDWARD C. JORDAN CO. INC., NORTH KENNEBEC REGIONAL PLANNING COMMISSION,
REGIONAL SOLID WASTE LANDFILL INVESTIGATION (February 1978).
67
An Act Relating to Solid Waste Disposal, L.D. 1903 (May 3, 1973) and An Act to Enable Communities to
Establish Multiple Community Solid Waste Districts, L.D. 1520 (March 13, 1973).
68
Pub. L. 94-580, Oct. 21, 1976, 90 Stat. 2795.
61
10
comprehensive waste management act which increases the Federal role in that field.”69 In
Warren’s report to the BEP under “Subtitle D” (“Minimum Requirements For Plan
Approval”) sub 6 was a provision – “Provide for recovery, conservation and disposal in
sanitary landfills,”70 that would serve to create an entire industry in the State of Maine and
would set in motion the forces that led to the creation of secure commercial landfills in
Norridgewock and Hampden.71
Municipal Landfills Phased Out
It took almost another decade for the effects of RCRA to be felt broadly in Maine
communities.72 Under threat of lawsuits from the Federal Environmental Protection Agency
(EPA) the 112th Legislature began setting deadlines for the cessation of open pit burning in
town dumps.73 The pressure from EPA was strong enough that even longtime conservatives
like Representative Edward L. Dexter of Kingfield and Representative Vincent Ridley of
Shapleigh went along with the action.74 The well publicized75 contamination of residential
wells at the “Superfund” site at the McKin company’s chemical waste dump in Gray (which
contaminated the area groundwater and the Royal River) also lent urgency to drive for a
centralized and state controlled system.76
On of the intended effects of the clamp down on town dumps was to have household
trash sent to “waste to energy incinerators.”77 The business, technical and legal history of
69
HENRY E. WARREN, DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW FEDERAL SOLID WASTE ACT, ( December 10,
1976).
70
Id. Subtitle D(6).
71
The Sawyer Environmental Recovery Facility (SERF) and its geologic and legal history are beyond the scope
of this paper. CITE SAWYER CASE.
72
Davis Rawson, Bill snuffs out burning dumps, Bangor Daily News, May 9, 1985.
73
Id.
74
“The problem is, the hammer is about to come down,” said Representative Paul F. Jacques of Waterville.
75
Susan Hodges and Deborah Holmes, 33rd worst in country, EPA rates Mckin dump, Portland Press Herlad,
December 30, 1982.
76
Dennis Bailey, Brennan announces dump cleanup plan, Portland Press Herald, April 22, 1983.
77
Linda Buskin, Study panel moves ahead with plans for regional trash incinerator project, Kennebec Journal,
November 17, 1983.
11
solid waste incineration in mass burn or waste to energy facilities is beyond the scope of this
paper. I merely note, that these plants have always had opponents78 are often financially
troubled79 and create very toxic waste.80 Flyash from municipal solid waste incinerators in
special waste stream entering commercial secure landfills in Maine, as the next section will
demonstrate, has been the engine that has driven the commercial trash industry in Maine.
The Creation of the Commercial Waste Industry in Maine
The creation of a booming commercial waste hauling and dumping business in
Maine and the growth of the municipal solid waste incinerator industry were two of the
unintended consequences of the closure of the old municipal dumps in Maine.81 Sam
Zaitlin, who was Chairman of the Board of Environmental Protection in 1984, has stated
that no one anticipated the dimension of, nor fully appreciated the toxicity of, the mountains
of flyash that the Maine Energy Recovery facility created.82
Efforts by industry and the now defunct Maine Waste management Agency to locate
new ash dumps generated intense resistance from communities.83 One proposal for an ash
78
Rachel Collins, Biddeford council kills incinerator referendum, Portland Press Herald, October 10, 1984.
MERC and PERC, Energy firm learns it can’t burn red ink, Maine Times, editorial, October 6, 1989. Tux
Turkel, Trash plants a losing gamble, Maine Sunday Telegram, October 10, 1989. Detailing troubled history of
New Jersey based Kuhr Technologies’ Biddeford and Orrington plants. Id.
80
There was genuine disagreement at this time concerning the toxicity of municipal solid waste flyash. Bill
Paul, As Trash Burning Spreads, Communities Face Fight Over Potential Health Effects, Wall Street Journal,
September 4, 1987. This story notes “Contradictory claims by environmentalists and incinerator operators.”
Id. The article noted that the EPA estimated that the year before, “existing incinerators together cause between
three and thirty eight cancer cases a year through inhalation of highly toxic dioxin emissions.” Id. The
controversy over the level of toxicity of incinerator fly ash reached the United States Supreme Court in 1994.
In 1988 the Environmental Defense Fund complained that the City of Chicago was violating provisions of
RCRA by not treating the flyash from its Northwest Waste-to-Energy Facility in a proper manner by disposing
of the ash in landfills not licensed to accept hazardous waste. City of Chicago v. Environmental Defense Fund,
511 U.S. 328, 330 (1994). The court did not rule on whether fly ash could be handled as “special waste” under
Maine’s regulatory regime. Author’s note.
81
Donald M. Kreis, Don’t throw away this story, Maine Times, June 17, 1988.
82
Id. Id.
83
The proposed Township 30 ash dump in Washington County provoked one the most bitter, and at the same
time most colorful battles of the late nineteen eighties solid waste struggles. Kuhr technologies sought to
locate a sixty acre landfill for its flyash from the Maine Energy Recovery Facility (MERC) and the Penobscot
Energy Recovery Company (PERC) to receive about twenty trucks a day of trash and ash (12 million cubic
yards at capacity in 30 years) that would create a 15 story high hill covering the sixty acre sight. Opponents
from throughout the state and as far away as Boston attended hearings and demonstrations. Dump opponent,
79
12
dump in Lebanon, Maine84 resulted in human blockades, tense standoffs, and the banishment
of a trash ‘czar’85 for life.86
Entrepreneurs and operators of all stripes saw an opportunity to enter into a very
lucrative new industry on the ground floor.87 In the late nineteen eighties applications and
schemes for new solid waste landfills in (among many other places) Marion Township,
Township 14, Township 3088 and Porter89 created a “sense of chaos” in the towns, the solid
waste industry and the regulatory agencies.90
The 113th Legislature responded with a moratorium, effective October 8, 1987,
stating that the DEP “may not process or act upon any application or issue a license for a
new commercial landfill facility or the substantial expansion of a commercial landfill
facility.”91
A number of towns throughout Maine also responded to the flood of applications
with moratoria. The Town of Porter successfully defended its moratorium in litigation with
Waste Disposal Incorporated (WDI). WDI had applied to construct a 5.5-acre “secure”
landfill in 1986.92
activist and occasional political candidate Nancy Oden summed up the feelings of local opponents: “This is the
last insult. The coast has been bought up by developers. Paper companies are clearcutting more. But we’ve
ignored all insults, at least until now. This is like the Alamo. We’re not going to allow this.” Larry Hansen,
Neighbors fighting 60-acre landfill, Maine Sunday Times, October 10, 1987.
84
The so-called “Hebo-Hybo” landfill. Glenn Adams, State says trash ‘czar’ thwarted, Portland Press Herald,
July 18, 1987.
85
William Trainor Jr. began his short career as an ash landfill developer on the heels of a longer career as an
inmate in a Federal prison in Connecticut where he was serving time on a fraud conviction. Donald M. Kreis,
supra n. 82 at 8A.
86
Under the terms of consent decree entered in Superior Court in Augusta, William Trainor Sr. agreed to pay a
$15,000 settlement, $2,500 in court costs and never own or operate a landfill in the State of Maine. Glenn
Adams, supra n. 85.
87
Donald M. Kreis, supra n. 82 at 11A.
88
The Township 30 application was denied after a series of hearings in Washington County and Augusta.
DEP, BOARD ORDER, IN THE MATTER OF PERC ENVIORNMENTAL RESOURCE FACILITY, T-30, MD, WASHINGTON COUNTY, MAINE,
3L-014606-07-A-N, December 6, 1989, signed by E. Christopher Livesay, Chairman.
89
Donald M. Kreis, supra n. 82 at 11A
90
Id. at 9A.
91
38 M.R..S.A. 38 § 1310-V c. 517, § 25.
92
Waste Disposal Incorporated v. Town of Porter, 563 A.2d 779 (Me. 1989)
13
Norridgewock also passed a moratorium,93 but did not rely on its provisions in its
denial of the application by Secure Environments Incorporated (SEI) to construct a second
commercial “secure” landfill in Norridgewock.94
The SEI application, submitted on May 16, 1986, was denied by the Norridgewock
Board of Selectmen on July 14, 1986.95 A second application, submitted on August 6, 1986
was also denied.96
SEI’s unsuccessful 80B appeal of the Board of Selectmen’s action to Superior Court
was subsequently appealed to the Maine Supreme Court.97 SEI argued that the ordinance98
was vague,99 that SEI was denied due process at the September 24, 1986 hearing before the
Board of Selectmen,100 and that the decision of the Board of Selectmen was not supported by
substantial evidence on the record.101 SEI contended that despite the ruling of the
Norridgewock Board of Selectmen,102 it had proven financial capacity103 and submitted a
suitable plan for traffic management on the site.104
93
Secure Environments, Inc. v. Town of Norridgewock, 544 A.2d 319, 321 (Me. 1988).
Id.
95
Id.
96
On September 29, 1986. Id.
97
Id.
98
The ordinance referred to here is the 1985 Norridgewock Landfill Ordinance discussed below. Author’s note.
99
Secure Environments Inc. at 321.
100
Id. at 324.
101
Id. at 325.
102
The Selectmen had ruled that $10,500,000 from the Ipswich (Mass.) Savings Bank and the $1,000,000
investment of Paul Quinn was not enough to prove financial capacity. Id at 326.
103
Id. at 326. It is interesting to note how much had changed in landfill siting in the ten years since the Lappie
landfill was sited in Norridgewock. Elizabeth Lappie’s “Site Location Order” merely noted that “Applicant
filed evidence in the forms of statements from banks as to her financial capacity.” MAINE DEP, BOARD ORDER IN
THE MATTER OF ELIZABETH LAPPIE, NORRIDGEWOCK, MAINE, CONSOLIDATED SANITARY LANDFILL, #49-2696-25220 (March
10, 1976)
104
Secure Environments Inc. at 326.
94
14
In an opinion authored by Judge Glassman, the State Supreme Court upheld the 1985
Norridgewock ordinance105 and validity of the hearings and decisions of the Norridgewock
Board of Selectmen106 on all issues except traffic management.107
The “Municipal Home Rule” issues that loomed so large in subsequent litigation
between CWS and Norridgewock and the litigation between Sawyer Environmental and
Hampden were noted in this case,108 and although they did not effect the outcome,
foreshadowed the battles to come.
Tom Sawyer and the Hampden Facility
Although the landfill operations of Tom Sawyer and his involvement in solid waste
issues, business and politics is a large topic that is beyond the scope of this paper, a small
detour to examine some aspects of the Hampden operation is required in order to understand
the forces at work in solid waste issues within Norridgewock.
Tom Sawyer, creator of the Sawyer Environmental Recovery Facility (SERF), Tom
Sawyer Inc., Sawyer Environmental Services109 has been active in business,110 solid waste
lobbying,111 and politics.112 He was also, apparently, active in trucking and trash collection
in the late nineteen seventies and early nineteen eighties.113
105
“The Norridgewock ordinance conforms to state and federal requirements and is a reasonable exercise of the
Town’s power to enact measures that require the applicant to meet certain requirements in order to protect the
public and enhance and maintain the quality of the environment.” Id. at 322.
106
Id. at 324, 325.
107
“SEI appears to be correct on this issue. However, because we conclude there exists substantial evidence on
the record to support the Board’s ultimate decision, we affirm the Board’s denial of SEI’s application.” Id. at
326.
108
Id. at 322.
109
Ned Porter, Sawyer Operations to be Merged with Allied Waste, Bangor Daily News, November 20, 1993.
110
The transaction to Allied was valued at between three and six million dollars. Id.
111
Lennie Mullen, Big Change Possible (letter to the editor), Bangor Daily News, March 22, 1994. Describing
Sawyer’s efforts to convince legislature to repeal statute blocking expansion of his landfill.
112
After the sale of his corporate interests to Allied Sawyer entered State electoral politics. W. Tom Sawyer is
now the State Senator from District 9 in Penobscot County. He represents Bangor and Veazie. DIST 09 BIO,
Senator W. Tom Sawyer, Jr. of Penobscot County, available at
http://www.state.meus/legis/senate/senators/bios/bio09s.htm
113
State of Maine v. Truck-A-Way System, 1984 WL 15671 (Me. Super.)
15
Under the terms of a 1984 consent decree entered on October 4, 1984, W. Tom
Sawyer, on behalf of himself and Truck-A-Way System agreed to pay a total of $50,000 in
pro rata restitution to customers of Truck-A-Way System during the period 1978 through
1982.114 As a result of the consent decree, Truck-A-Way Systems was also “permanently
enjoined from engaging in any combination or conspiracy with a competing trash collection
business to fix, raise and maintain the prices of trash collection services or allocate among
themselves customers of trash collection services.”115
In 1989, in the closing days of the 114th Legislature, An Act to Promote Reduction,
Recycling and Integrated Management of Solid Waste and Sound Environmental
Regulation, (Maine Solid Waste Act),116 was passed which aimed to reconfigure and reform
the solid waste industry in Maine. Among its provisions were the creation of the Maine
Waste Management Agency117 and the expansion of the Bottle Bill118 and expansion of
recycling requirements for solid waste disposal facilities.119
Two other provisions of the Maine Solid Waste Act that became very pertinent to
Norridgewock and Hampden and to Consolidated Waste Services and SERF were provisions
in M.R.S.A. 1310-U titled Municipal Ordinances and the provision immediately following it
in the original bill, M.R.S.A. 1310-X titled Future Commercial Landfills.
114
Id.
Id.
116
1989 Maine Legislative Service 585 (West). Also commonly known as the Omnibus Solid Waste Bill.
117
M.R.S.A. 38 §2102. Subsequently abolished by the 117th Legislature in 1995. 1995 Maine Legislative
Service Ch. 465 (L.D. 229) (West).
118
M.R.S.A. 32 § 1862. Defined a “beverage container” as a “bottle, can jar or other container made of glass,
metal or plastic which has been sealed by a manufacturer and which, at the time of sale, contains one gallon or
less of a beverage.” Id.
119
M.R.S.A. 38 § 1310-R.
115
16
Preemption, Expansion and Litigation
Under the rules laid down in the Municipal Ordinances provision, municipalities
would no longer be able to enact solid waste ordinances that were stricter than the standards
promulgated by the State Legislature or the BEP.120
This provision was and remains very popular with regulated industries generally. 121
The Municipal Ordinances provision was central to successful litigation that SERF brought
against the Town of Hampden.122 SERF had applied for an expansion of its “secure”123
landfill beyond the acreage occupied by its old124 “conventional” landfill.125 Throughout the
1980’s and the early 1990’s SERF had been siting and operating secure landfill operations
on top of its old conventional landfills.126
In arguing that the secure operations should be allowed to be sited on land beyond
the “footprint” of the conventional landfill area approved by the Town of Hampden Zoning
Board of Appeals in 1974, SERF advanced four claims, including inverse condemnation, a
120
Specifically the statute, which is still in effect as of the drafting of this paper says:
Municipalities are prohibited from enacting stricter standards than those contained in this
chapter and in the solid waste management rules adopted pursuant to this chapter governing
the hydrogeological criteria for siting or designing solid waste disposal facilities or
governing the engineering criteria related to waste handling and disposal areas of a solid
waste disposal facility. Id.
The statute specifically defines the “Home Rule” authority granted to municipalities under the Maine State
Constitution as allowing solid waste ordinances provided “[T]hat the standards are not more strict than those
contained in this chapter and in Chapter 3, Articles 5-A and 6 and the rules adopted thereunder.” Id.
121
Those who face regulation often state that they prefer one DEP, not matter how detailed or tough the
regulations and application process to hundreds of mini-DEPs in each Town office. Authors note.
122
Sawyer Environmental Recovery Facilities, Inc. v. Town of Hampden, 760 A.2d 257.
123
An entire research paper could be written on the genesis, meaning and implication of this word under Maine
law. In this opinion it is defined by the court so: “The designation “secure” refers to a type of landfill that is
required pursuant to DEP regulations for the disposal of certain types of waste such as oil and incinerator ash.”
Id. at 259. That definition is a good start. I will attempt below to define secure and “special” and their
interrelationship in Maine solid waste law in my discussion of DEP regulations.
124
A landfill sited in 1974 under a rudimentary Hampden Town ordinance from 1964 which had ruled landfills
a non-permitted use in an industrial zone. On appeal the Hampden Zoning Board of Appeals granted the
permit to operate a landfill. Id. at 258.
125
Id.at 259.
126
Id.
17
Rule 80B appeal and a claim pursuant to 42 U.S.C. § 1983.127 A count advancing the theory
that State solid waste laws preempt local ordinances drew most of the State Supreme Court’s
analysis.128
In the end the Town of Hampden was found to have an ordinance that “is preempted
by the State solid waste management laws.”129
The Town of Norridgewock was a party to three suits related to the validity of pre1989 landfill ordinances.130 The first action was brought by Consolidated Waste Services,
Inc. against the Town of Norridgewock pursuant to Rule 80B M.R.Civ. P. CWS sought this
“Review of Governmental Action” in appealing the October 16, 1987 decision of the
Norridgewock Board of Selectmen denying CWS a permit under the Town’s 1985 “Solid
Waste Ordinance” (1985 Ordinance) “to dispose of an additional 678,000 cubic yards of
municipal solid waste and 201,000 cubic yards of other “special” wastes.”131
The second action,132 by CWS against Norridgewock sought a declaratory judgement
on the validity of the 1987 “Solid Waste Disposal Ordinance (1987 Ordinance).”133 CWS
also made against Norridgewock for a taking in relation to their “waste disposal real
property” seeking damages of $10,000,000.134
The third action, initiated by the Town of Norridgewock, against CWS alleged that
the enactment of the 1987 Ordinance required CWS to reapply for the permission to operate
127
Id.
Id. at 263 –266.
129
Id. at 265.
130
A succinct description of the roots of this confusing litigation is contained in a letter updating then Town
Manager Julie Magoon on various pending litigation that the Town of Norridgewock was involved in. The
Town of Norridgewock was a party to five suits at that time. Two of the suits were unrelated to the landfill.
Letter from Donald Eames, Town Attorney, to Julie Magoon, Norridgewock Town Manager (November 17,
1989). On file with Gloria Frederick and, I must assume, the Town of Norridgewock.
131
Consolidated Waste Services, Inc. v. Inhabitants of the Town of Norridgewock, 1988 Me. Super. Lexis 134,
Docket No. CV-87-193. Described also in Letter from Donald Eames, supra n. 93 at paragraph 2.
132
Letter from Donald Eames, supra n. 93. (Referred to by Docket # CV-89-36).
133
Id. at paragraph 1.
134
Id. at paragraph 1.
128
18
a landfill that they had received under the 1985 Ordinance.135 Donald Eames notes that the
Town of Norridgewock was at this time in the process of adopting still another ordinance,136
and that the case could therefore become moot, but also noted that since CWS had never
applied for a permit to operate under the 1987 Ordinance and therefore is arguably had no
permit to operate.137
The first action went before Judge Donald Alexander and was decided on June 2,
1988.138 CWS argued that Chapter 2 § 3(b) of the 1985 Ordinance was misused by the Town
in denying a permit in the Town’s October 16, 1987 decision.139 CWS maintained that the
Town of Norridgewock “cannot independently judge for itself compliance with federal and
state laws.”140 Judge Alexander held that there was nothing in subsection 3(b) of the
ordinance141 to suggest that the Board of Selectmen could usurp county, state or federal
regulators and that it is entirely appropriate to make sure that a project can meet approval
from other levels of government before it proceeds.142
CWS second argument was the same as argument the SERF made successfully two
years later in Sawyer v. Hampden,143 namely that M.R.S.A. 1310-U had removed municipal
“home rule” authority in solid waste matters. Judge Alexander ruled that here the criteria of
Norridgewock’s 1985 Ordinance were “not preempted by 38 M.R.S.A. § 1310-U as the
provisions of the local ordinance are consistent with, supportive of and not stricter than the
135
Id. at paragraph 4.
Id. I have been unable to find evidence of whether this “1990 Ordinance” was ever fully drafted or adopted.
Author’s note.
137
Id.
138
Consolidated Waste Services, Inc. v. Inhabitants of the Town of Norridgewock, 1988 Me. Super. Lexis 134,
Docket No. CV-87-193. (This case is consistently referred to in Donald Eames letters at C-V-89-88).
139
Id. at 5.
140
Id.
141
Which read “ The establishment and operation of the facility shall comply with all other municipal, state,
county and federal laws and regulations which may apply.” Id.at 3.
142
Id. at 6.
143
760 A.2d 257, 263-266.
136
19
provisions of the state law.”144 The final two arguments, improper delegation and lack of
sufficiency of the evidence are dismissed as far short of sufficiently proven to convince the
court to overturn the Board of Selectmen’s decision.145
What I refer to in this paper as the second146 and third147 cases were consolidated
pursuant to M.R. Civ. P. 42(a) and decided by Judge Margaret Kravchuk on September 28,
1990.148 The court noted that both parties had agreed that “there are no genuine issues of
material fact material to this proceeding.”149 CWS had moved for summary judgement both
as Plaintiff and Defendant under the theory that the 1987 Ordinance “was preempted by the
State regulatory scheme.”150 The court notes that “an exhaustive analysis of the 1987
Ordinance and the State scheme is not necessary” because “the 1987 Ordinance as drafted is
preempted by its express inconsistency with the State’s limiting statute.”151
The court then goes on to point out the Catch-22 that Norridgewock is found to be in
because the 1987 Ordinance was drafted before the 1987 Solid Waste Law and M.R.S.A.
1310-U were promulgated:
When the 1987 Ordinance was enacted, the governing statutory
section limiting the bounds of permissible municipal regulation prohibited
municipal ordinances that were “less stringent than or inconsistent with” the
Act then in effect or the rules promulgated pursuant thereto. 38 M.R.S.A. §
1304-B(3). After passage of the 1987 Ordinance, 38 M.R.S.A. § 1310-U was
144
Consolidated Waste Services, Inc. v. Inhabitants of the Town of Norridgewock, 1988 Me. Super. Lexis 134,
Docket No. CV-87-193. at 6. Note, I am deliberately using long citation format here as it is very easy to get
these three cases confused. Author’s note.
145
Id. at 12 –16.
146
Consolidated Waste Services, Inc. v. Town of Norridgewock, Somerset County Superior Court Docket No.
CV-89-36.
147
Town of Norridgewock v. Consolidated Waste Services, Inc., Somerset County Superior Court, Docket No.
CV-89-55.
148
Consolidated Waste Services, Inc., Plaintiff v. The Town of Norridgewock, et al, Defendants; The Town of
Norridgewock, Plaintiff v. Consolidated Waste Services, Inc. Defendant, 1990 Me. Super. Lexis 208. Docket
No. CV-89-36, Docket No. CV-89-55 (September 28, 1990).
149
Id.at 2.
150
Id. at 3.
151
Id. at 7.
20
enacted further limiting home rule authority152 to prohibit municipal
regulations that employed stricter standards than those contained in the Act
and in the rules adopted pursuant thereto.153
The inconsistencies between State and municipal standards are found to be enough
for the court to state that the “entire waste disposal scheme or Norridgewock currently in
effect must fail.”154 Summary judgement is granted for CWS as plaintiff in CV-89-36 and as
defendant in CV-89-55 and the 1987 Ordinance is ruled preempted by M.R.S.A. 1310-U.155
The other aspect of the 1989 Solid Waste Law that was challenged by SERF was the
provision in M.R.S.A. 1310-X that “The Board shall not approve an application for a new
commercial facility after the effective date of this section.”156 The other, little noticed
provision of M.R.S.A. 1310-X passed in 1989, provided that:
The Board may license expansions of commercial solid waste disposal
facilities after the effective date of this section, if:
A: The Board has previously licensed the facility prior to the effective date of
this section;157
B. The Board determines that the proposed expansion is contiguous with the
existing facility and is located on property owned by the licensee on the
effective date of this section.158
On March 22, 1994, four months after Tom Sawyer merged his corporate entities
with Allied Waste of Phoenix, Arizona,159 he attended a very contentious legislative hearing
in Augusta.160 After the hearing was moved from the State House to the Civic Center due to
a bomb threat,161 Phillip F. Aherns, a lobbyist for Tom Sawyer, was the only speaker in
152
But from the other direction. Author’s note.
Consolidated Waste Services, Inc., Plaintiff v. The Town of Norridgewock, et al, Defendants; The Town of
Norridgewock, Plaintiff v. Consolidated Waste Services, Inc. Defendant, 1990 Me. Super. Lexis 208. Docket
No. CV-89-36, Docket No. CV-89-55 (September 28, 1990) at 8.
154
Id. at 11.
155
Id. at 13.
156
Which came to be September 30, 1989 in the current code. 38 M.R.S.A. § 1310-X (2001). This provision
essentially banned new commercial facilities statewide and “grandfathered” existing facilities.
157
Once again, this “effective date” came to be September 30, 1989. Id.
158
1989 Maine Solid Waste Act, 38 M.R.S.A. § 1310-X (A) (B).
159
Ned Porter, Sawyer Operations to be Merged with Allied Waste, Bangor Daily News, November 20, 1993.
160
Ned Porter, Threat Delays Hearing, Landfill Growth Hotly Debated, Bangor Daily News, March 23, 1994.
161
Id.
153
21
attendance favoring a change to the 1989 Solid Waste Law that would move back the
effective date of the 38 M.R.S.A. 1310-X (B).162 This “small change” sought by Sawyer163
would allow him to expand onto a 15 acre parcel he signed a purchase and sale agreement
for less than a week after September 30, 1989.164 In 1995, the 117th Legislature changed the
provision in M.R.S.A. 1310-X regarding the date that expansions onto contiguous properties
had to be under the ownership of the expanding facility to December 31, 1989.165
The Lappie Landfill
On June 8, 1970 E. Stanley Lunn sold 150 acres of land, then known as the Charles
Bigelow Farm to Willis Tryon.166 As was noted above, Elizabeth Lappie took possession of
this land in Norridgewock on January 9, 1976.167 This land was eventually deeded from
Elizabeth Lappie to Herbert and Elizabeth Lappie.168 Another 110 acres was purchased by
the Lappies in 1978 (subsequent to the 1976 BEP approval of the Lappie landfill).169 This
110 acres had been owned by the previous owner for just over a month,170 after a dozen
years of ownership by Hazel H. Redmond.171
162
Id.
Lennie Mullen, Big Change Possible, Bangor Daily News, March 22, 1994.
164
Ned Porter, supra n. 123.
165
1995 Me. Legislative Service Chapter 68, L.D. 447. M.R.S.A. 1310-X (B).
166
Deed from E. Stanley Lunn to Willis Tryon, recorded in Book 802, Page at the Somerset County Registry of
Deeds, Skowhegan, Maine.
167
Deed from Willis Tryon, supra n. 19. This land is shown in Plan File C-83-156 dated December 22, 1983.
The 125 acres that Elizabeth Lappie purchased comprised the entirety of the CWS landfill site as of August 11,
1988. Only 12.5 acres of that site was approved for the Lappie landfill and CWS operated within that same
area. Letter from Paula Clark, Director, Bureau of Solid Waste Management, to Julie Magoon, Town
Manager, Norridgewock (August 11, 1988). On file with Gloria Frederick, Norridgewock, Maine.
168
Deed from Elizabeth Lappie to Herbert Lappie and Elizabeth Lappie, May 4, 1978, recorded in Book 891,
Page 694, at the Somerset County Registry of Deeds, Skowhegan, Maine.
169
Deed from David A. Sincyr to Herbert D. Lappie and Elizabeth P. Lappie, May 4, 1978, recorded in Book
891, Page 692, at the Somerset County Registry of Deeds, Skowhegan, Maine.
170
Deed from Hazel H. Redmond to David A. Sincyr, March 15, 1978, recorded in Book 889, Page 474, at the
Somerset County Registry of Deeds, Skowhegan, Maine.
171
Deed from William E. Clayton to Hazel H. Redmond, November 18, 1965, recorded in Book 730, Page 159,
at the Somerset County Registry of Deeds, Skowhegan, Maine.
163
22
The Somerset Registry of Deeds also shows a “Site Location Order”172 dated April
28, 1976 issued pursuant to 38 M.R.S.A. 481-488173 containing fifteen findings, including
that the applicant had made adequate provision for access via the privately developed
Airport Road,174 has proven financial capacity,175 and that “[N]o evidence was offered that
the proposed project would significantly impact natural resources or other uses in the area,
provided that the quality of Mill Stream is maintained.”176
Based on these findings, the BEP concluded that:
1) Applicant has sufficient financial and technical capacity to properly design and
operate the proposed project.
2)
Proper operation of a sanitary landfill will control odors.
3)
Provided access is gained by the Airport Road and more detailed interior
road plans are submitted, the applicant has made adequate provision for traffic
movement.
4)
Applicant has made adequate provision for protecting the natural
environment. However, applicant will be required to install monitoring wells to
insure control of any harmful leachate which may result from the project, and to
install visual screening if necessary, after on site review.
5)
Soil types, based on the information available, are adequate for the
project as proposed. However, more detailed soils data in each operational area
would be useful for detail planning.177
The Board Order next refers to the “Standard Conditions of Approval” attached. These
conditions are actually in a separate document filed one page earlier and labeled “Revised
March 24, 1976” titled Standard Conditions.178 The Standard Conditions require that all
172
MAINE DEP, BOARD ORDER IN THE MATTER OF ELIZABETH LAPPIE, NORRIDGEWOCK, MAINE, SITE LOCATION ORDER,
FINDING OF FACTS AND ORDER, April 28, 1976.
173
The Board Order refers to the transcript of a Public Hearing conducted on March 29, 1976. Id. The author
has been unable to locate a transcript of that hearing.
174
Id. at paragraph 5.
175
“Applicant filed evidence in the form of statements from banks as to her financial capacity to complete the
project properly. Part of this capacity is based on the ownership of equipment and the willingness and ability
of the applicant and family to do much of the required work themselves.” Id. at paragraph 3.
176
Id. at paragraph 15.
177
Id. page 2.
178
Recorded in Book 864, Page 197 at the Somerset County Registry of Deeds, Skowhegan, Maine.
23
variances be subject to review and approval by the BEP,179 that the applicant secure all
Federal, State and local licenses, permits, authorizations, etc,180 and that:
Should the project be found, at any time, not to be in compliance with any of
the conditions of this approval, or should the applicant construct or operate
this development in any way other than specified in the application or
supporting documents, as modified by the conditions of this approval, then
the terms of this approval shall be considered null and void.181
It is difficult to ascertain the conditions under which the Lappie landfill was
approved and under which it functioned. No files are available at the DEP or the State of
Maine archives from this period relating to compliance or enforcement.182 Interviews with
two longtime residents of Norridgewock, Gloria Frederick and Jake Sirois183 and a
Waterville Morning Sentinel story by Thomas Lizotte that is not dated184 suggest that many
townspeople in Norridgewock were skeptical of enlisting in the Lappie landfill venture.
One document from that time, found in a box at DEP headquarters with unrelated
items, gives some clues as to possible divisions within Norridgewock over the issue of
closing the non-compliant Town Dump and subscribing to the Lappie venture.185 The April
7, 1976 Memorandum reads as follows:
At the request of town officials, the staff inspected the present
Norridgewock dump and found the distance between the dump face and
theKennebec River to be about 250 feet at the closest points.
Mr. Herring, the town manager, during a phone conversation on April
4, 1976, requested that a public hearing be held in Norridgewock concerning
the alleged violation.
179
Id. at paragraph 1.
Id. at paragraph 2.
181
Id. at paragraph 8.
182
See DEPARTMENT OF THE SECRETARY OF STATE, supra n. 56.
183
Conducted in person in Norridgewock on April 13, 2002 by the author.
184
Norridgewock Voters Will Decide On Dump Issue Tuesday At Polls. On file with Gloria Frederick.
185
DEP MEMORANDUM, TO BEP, FROM RONALD C. HOWES, SOLID WASTE DIVISION, Re: Alleged 300-foot violation
of the existing Norridgewock dump. (April 7, 1976).
180
24
Staff recommends that one hearing be held to consider both the 300
foot, and the open burning issues. A tentative date of April186 29th at 1:30
p.m. has been set for the joint hearing.187
No record of that hearing or the resolution of any of the issues involved is available
as far as this author can ascertain.
From Lappie to CWS
A. Phase I through VI
On December 22, 1983 Elizabeth and Herbert Lappie sold their landfill and adjacent
property to Consolidated Waste Services.188 Elizabeth Lappie had previously entered into a
sales agreement with Sawyer Consolidated landfill in Hampden that was not exercised.189
Within a month Sawyer’s long time operations manager, Eric Hake, and an ex-DEP
employee and Sawyer engineer, Alva Achorn, formed Consolidated Waste Services.190
Eight days191 after Achorn and CWS took possession the landfill’s license was transferred via
a “Staff Order”192 on a form on which Commissioner Henry E. Warren’s name is typed but
another, illegible,193 signature is written.194
186
The word “May” was typed in, but crossed out and “April” was handwritten over it. Author’s note.
This document, a photocopy of which is on file with the author is unsigned, has the numerals 00016 in the
upper right hand corner and is labeled “STAFF WORKING PAPER.”
188
Deed from Elizabeth P. Lappie and Herbert D. Lappie to Consolidated Waste Services, recorded in Book
1116, Page 71 containing 150.11 acres, at the Somerset County Registry of Deeds, Skowhegan, Maine. There
is also a CWS Mortgage to the Lappies at Book 116, Page 75 for $235,000 that has not been discharged. In a
second transfer the same day Elizabeth P. Lappie and Herbert D. Lappie deeded the 110 acres adjacent to the
landfill site to CWS, Book 1116, Page 79, at the Somerset County Registry of Deeds, Skowhegan Maine.
There is a $60,000 Mortgage from CWS to the Lappies recorded in Book 1116, Page 80 that also has not been
discharged.
189
Linda Begin, The Landfill: how it grew and why, Waterville Morning Sentinel, July 20, 1987.
190
Id.
191
Normally, an eight-day turn around time for this state action, during the Christmas holiday would seem
rapid. Christmas 1983 was a Sunday. Author’s note.
192
The original license to Lappie was accomplished by a BEP “Board Order” as were all subsequent transfers
and expansions. Author’s Note.
193
Perhaps “David E. Tudor, Deputy”
194
MDEP, STAFF ORDER IN THE MATTER OF CONSOLIDATED WASTE SERVICES, INC., NORRIDGEWOCK, MAINE,
CONSOLIDATED SANITARY LANDFILL, 349-2696-25220 (DECEMBER 30, 1983).
187
25
The December 30, 1983 Staff Order contains no mention of public hearings.195
Besides noting that the application by CWS involves the “transfer of Board Order #49-269625220 from Elizabeth Lappie to Consolidated Waste Services”196 the Staff Order states only
two findings of fact:
2. The applicant has submitted the following evidence in support of his
request: A completed application for transfer, dated December 19, 1983,
signed by the applicant and the previous applicant.
3. The applicant has adequate financial and technical capacity to meet air and
water pollution control standards in that a financial statement from a lending
institution has been submitted indicating that adequate operational and
construction funds are available.197
From the available record it is not clear where the financing for the early CWS
operations came from. Subsequent news stories describe Gordon Hurtubise as a founding
partner.198 Although Alva Achorn maintained that in 1987 Hurtubise did not have a
controlling interest in CWS, when the landfill’s licenses were transferred to WMI on October
10, 1990 the Board Order stated “ The application involves the transfer of all stock in
Consolidated Waste Services, Inc. (CWS) by Mr. Gordon L. Hurtubise to Waste
Management, Inc. (WMI).”199 Attorney Daniel Lilley of Portland, who represented
Hurtubise in his response to a six count federal indictment for perjury, tax evasion and
conspiracy described his client as “a private investor.”200
195
Id.
Id.
197
Id.
198
Marie Howard, CWS official indicted on charges of tax evasion, perjury, conspiracy, Waterville Morning
Sentinel, September 26, 1987.
199
DEP BOARD ORDER, IN THE MATTER OF CONSOLIDATED WASTE SERVICES, SITE LOCATION & SOLID WASTE ORDER
TRANSFER OF LICENSE FINDING OF FACTS AND ORDER, by E. Christopher Livesay, Chairman (October 10, 1990).
200
Marie Howard, supra n. 175.
196
26
Eighteen months later when CWS received its license to operate a “secure”201 landfill
a letter from Casco Northern Bank is cited as providing evidence of “financial capacity.” 202
The Board Order licensing CWS to operate “a 13 acre secure landfill for the disposal
of 575,000 cubic yards of . . .waste,”203 is fifteen pages long and contains seven pages of
findings of fact.204 Among the findings are that approximately four acres of the 12.4 acre
existing facility had been used for the disposal of waste and that water quality monitoring
results indicated no adverse impact on ground or surface water from the current operation.205
Other notable findings are that the applicant will “incorporate a doubly-redundant
liner of High Density Polyethylene (HDPE) and recompacted clay and includes a leachate
collection management system.”206 The leachate generated on site was to be disposed of on
site by being “recirculated into the waste mass” and as “spray irrigation” in the summer
months.207 A 253, 287 cubic feet capacity leachate collection pond “designed to retain the
maximum volume of leachate generated during one year while maintaining a 25% capacity
buffer.”208 The next paragraph contains a “Leachate Disposal Contingency” that describes
agreements with a licensed off-site wastewater treatment facility and a “municipal solid
waste incinerator” to accept up to 10,000 gallons a day of leachate if necessary.209
201
Although the license described below granted permission to operate what at the time was known as a
“secure” landfill, that term is not specifically defined in the DEP rules (September 1983 Rules) under which it
was permitted. The first definition of a “secure” landfill is in the may 1989 Rules (discussed below).
202
MAINE DEP, SITE LOCATION OF DEVELOPMENT LICENSE, Samuel Zaitlin, Chairman, License # L-010735-07-A-N
(July 24, 1985).
203
The list of wastes include “[M]unicipal incinerator ash, non-recoverable oily wastes, pulp and paper sludges,
municipal sludges, metal hydroxide sludges, coal, oil, and biomass ash and on a case by case basis, other
compatible non-hazardous solid waste.” Id.
204
Id.
205
Id. at paragraph 2.
206
Id. at paragraph 1.
207
Id. at paragraph 14.
208
Id. at paragraph 13.
209
Id. at paragraph 15.
27
Under the fact finding section titled “Technical Ability” 210 it states that applicant has
proven evidence of technical ability via experience and technical consultants.211 A reference
is also made to the vice-president of CWS as a Licensed Professional Engineer.212
The final fact finding sections describe site closure procedures,213 water quality
monitoring214 and “Proposed Waste Characterization.”215
The remainder of the Board Order licensing the secure landfill contains the
“Attached Conditions” describing construction of a leak detection system,216 other
construction specifications and testing requirements for incoming waste,217 groundwater,218
and leachate.219
On the back of the final page of the Board Order is a “Solid Waste Special License
Condition” with an illegible signature220 that granted a variance from M.R.S.A. Title 38, §
1304 and DEP Regulation Chapter 400, § 7 almost one and a half years earlier “for the
following special license condition: variance from the notification procedure for the disposal
of asbestos at the Consolidated Sanitary Landfill in Norridgewock, Maine in the County of
Somerset.”221
210
Id. at paragraph 7.
Id.
212
Id. Presumably this is a reference to Alva Achorn. Both before and after this application, however, Achorn
is listed as President of CWS.
213
Id. at paragraph 16. A clay cap, a HDPE membrane, sand and topsoil are to be placed atop the waste
mounds and then they are to be seeded to grass. Id.
214
Id. at paragraph 18.
215
Id. at 19. This section describes the qualities and parameters of the special wastes to be deposited in the
lined landfill. Id.
216
Id. at Condition paragraph 3.
217
Id. at Condition 15.
218
Id. at Condition 18.
219
Id. at Condition 19.
220
Not Sam Zaitlin’s. It might perhaps be “David E. Tuder, Deputy” See, supra n. 170.
221
DEP SOLID WASTE SPECIAL LICENSE CONDITION, LICENSE NUMBER L-002696-07-A-M , “David E. Tudor”(?),
Commissioner(?), January 18, 1984.
211
28
This variance, it must be assumed, also granted an exemption from the requirements
of “Board Policy #4”222 described in the September 1983 Rules that established specific
requirements for the land disposal of asbestos.223 This inclusion of a copy of this variance
on that back of the license granted permission to build and operate a “secure” landfill does
not mean that asbestos must be disposed of in a secure landfill. Secure landfill space, as per
the specifications of the above license is reserved for the disposal of “municipal solid waste
ash, coal ash, wood and peat ash, biomass ash, oil ash, non-recoverable oily waste, pulp and
papermill sludges, and other sludges and compatible wastes on a case-by-case basis.”224
The actual nature of the “special wastes”225 deposited in Norridgewock is a very
large and technical topic that is beyond the scope of this paper. Monthly manifests
describing what has been deposited in Norridgewock are on file at the State archives from
1985 forward.226
The legal definition of “special waste” and its evolution through law and regulation
is specifically within the purview of this paper.
In the February 1976 Rules227 “special wastes” are defined as “[T]hose wastes which
may not be considered hazardous but may still require more complex management due to
other characteristics such as high moisture content or bulk.”228
Under the September 1983 Rules229 “special waste” means:
[A]ny waste emanating from sources other than typical domestic
commercial establishments that is not readily compatible within a waste
222
DEP SOLID WASTE MANAGEMENT RULES, CHAPTERS 400-406, APPROVED BY THE BOARD OF ENVIRONMENTAL
PROTECTION, September 28, 1983 and February 24, 1987 (Hereinafter September 1983 Rules).
223
Id. at 2.
224
MAINE DEP, SITE LOCATION OF DEVELOPMENT LICENSE, supra n. 203, Attached Condition #2.
225
DEFINE SPECIAL
226
Author’s note.
227
DEP STATE OF MAINE, REVISED SOLID WASTE MANAGEMENT REGULATIONS, Promulgated under Title 38, M.R.S.A.
§1304, Effective February 1, 1976.
228
Id. at 6.
229
DEP SOLID WASTE MANAGEMENT RULES, supra n. 223 at 16.
29
facility at which it may be handled. A waste is considered special when it
exists in such an unusual quantity or such a chemical or physical state, or any
combination thereof, as to disrupt or impair effective waste management or
threaten public health, human safety or surrounding natural resources when it
is to be handled at a waste facility that is not appropriately located, designed
or operated to receive such waste.230
Under the May 1989 rules, “special waste” has a definition that is over three times as
long, incorporating all of the above plus a specification that special waste is “nonhazardous” waste.231 The greatly lengthened list of specific “special” wastes now included
asbestos along with contaminated soils, medical waste, sand blast grit, spent filter media
residue and dredge spoils (among many other items).232
“Secure” landfills are defined, in DEP regulations for the first time in the May 1989
Rules:
“Secure Landfill” means a landfill that utilizes a liner system, a
leachate collection and treatment system, and a final cover system to
minimize discharges of waste or leachate, and control the release of gas, to
the environment.233
Continuing the fine tuning of the definition of a “secure landfill”, the November
1998 Rules234 dropped language that described the function of the leachate collection system
as minimizing discharges of leachate and substituted – “a leachate collection and treatment
system . . . to prevent discharges of . . . leachate.”235
230
Id. at 16.
MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, SOLID WASTE MANAGEMENT REGULATIONS, CHAPTERS 400-406,
408 & 409, EFFECTIVE DATE MAY 24, 1989 at 14.
232
Id.
233
Id.at 13.
234
MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, SOLID WASTE MANAGEMENT REGULATIONS, CHAPTERS 400-406,
408 & 409, EFFECTIVE DATE NOVEMBER 2, 1998.
235
Id. at 13.
231
30
The definition of special waste was also changed in small but significant way. The
category “Other waste designated by the board, by rule” was eliminated along with
“Medical and other potentially infectious or pathogenic waste.”236
Two other notable changes in the November 1998 Rules are the inclusion of a “Host
Community Agreements” section,237 and a section requiring full disclosure of the applicant’s
“Criminal or Civil Record.”238
The CWS application approved on July 24, 1985 (Phases I through VI) was
considered under the September 1983 Rules.239
B. Ancillary Proposals
Besides the Secure Environment proposal, there have been a number of other
proposals to site or prolong the operation of commercial dumps240 in Norridgewock and the
surrounding communities. Typical of those attempts is one by Gary Roy, owner of Central
Maine Resource Recovery System and a Madison resident.241 Mr. Roy proposed siting a
landfill on land located off Route 2 near the Skowhegan town line.242 The plan was loudly
opposed by a citizens group originally formed to resist the CWS landfill, Citizens Opposing
Polluted Environments (COPE), the Norridgewock Board of Selectmen and the School
236
Id.at 15. See May 1989 Rules at 15, 16.
Id. at 40. This section requires that an applicant for a new or expanded commercial solid waste facility
demonstrate that they have “ negotiated in good faith” to obtain such an agreement to give benefits to the host
community. Id.at 41.
238
Id. at 55.
239
MAINE DEP, SITE LOCATION OF DEVELOPMENT LICENSE, supra n. 203.
240
Marie Howard, State, town and owner at odds over waste suit, Central Maine Morning Sentinel, September
12, 1984. Describes the dispute over the continued operation of the Fairfield industrial waste disposal site
operated by Central Maine Disposal (CMD). Id. The Fairfield CMD site has a long history of unlicensed
dumping of petroleum products, flyash from Scott paper and open burning of waste. Michael Wood and
Central Maine Disposal were eventually sued by the State of Maine and the BEP. Linda Begin, State files suit
to close waste site in Fairfield, Waterville Morning Sentinel, September 8, 1984.
241
Don Waterhouse, Landfill plans scrubbed, Waterville Morning Sentinel, January 1, 1985.
242
Id.
237
31
Administrative District 54 Board of Directors.243 Mr. Roy’s proposal was subsequently
withdrawn.244
In terms of scale and impact on Norridgewock’s character, government and
economy, no other project or proposal in the history of Norridgewock rivals the creation
growth and eventual sale of the CWS landfills.245 Citizen opposition to the continued
operation and growth of CWS has been a constant.246 Lifelong resident and long time
Selectman, Harry Norton, summed up the majority sentiments in Norridgewock in the mid
1980’s when he said “We don’t want to be the dumping ground for New England.”247 Out of
State waste has always been the least welcome contribution to the CWS landfill in the eyes
of its opponents.248
While the landfill and its ancillary businesses have always had a core of
supporters,249 former Planning Board Chair, Lionel LaChapelle expressed the spirit of
extreme frustration and bitterness felt in much of Norridgewock in the mid 1980’s:
“If the town is going to be dumped on, it deserves precautions and
renumerations,” LaChapelle says.
243
Id. Authors personal knowledge of C.O.P.E. includes six years of membership and one year as President of
C.O.P.E. In the interest of full disclosure I note that I was also a member of the SAD 54 Board for two years
beginning in 1998.
244
Id.
245
At this point in time perhaps only the 1724 Norridgewock massacre of Indians and missionaries
immortalized in the poem “Mogg Megone” by John Greenleaf Whittier gives Norridgewock a wider notoriety.
Bob Cummings, Town fights growing landfill, Maine Sunday Telegram, September 20, 1987.
246
Id.
247
Id.
248
A 1987 petition to ban out of state wastes from Norridgewock garnered 277 signatures and was referred to
the Town Attorney. Id. The question of whether State’s may restrict the importation of out of state waste had
been settled by the United States Supreme Court a decade earlier with a finding that bans on out of state waste
offended the commerce clause of the U.S. Constitution. City of Philadelphia v. State of New Jersey, 437 U.S.
617 (1978).
249
Local realtor Zane Libby noted: “They’re doing a fine job out there. I think free enterprise is a good thing,
and I don’t need to be telling them how to run their business.” Linda Begin, Hearings, meetings, money
problems drain townspeople, Waterville Morning Sentinel, July 24, 1987. “The site of the C.W.S. landfill is
an excellent one it appears and since it has been developed and is operating under the DEP regulations, it
seems prudent to continue the operation.” Letter from Lester Clark, to Jim Glasgow, DEP State of Maine, July
31, 1990.
32
He calls the DEP “one large conglomerate technician.” And said the
agency is so wrapped up in the technical aspects of a landfill it disregards the
immediate and long-term effects facilities like CWS may have on the host
community.
Says LaChapelle: “If the DEP were the pimp, we would be the
prostitute without pay . . . And the prostitute has to take her own tests.”250
This skepticism and frustration deepened throughout the late nineteen eighties as
CWS pushed ahead with expansion applications, visible siltation and the growth of a
greenish-gray “sewage fungus” was discovered in the Mill Stream251 and eventually, the
municipal solid waste pile collapsed in a massive landslide (mentioned above) that buried a
tributary of the Mill Stream.252
C. Phase VII and the Mill Stream
The next application by CWS, the so-called “Phase VII” application was also
considered under the September 1983 Rules. The application “to construct and operate a
12.5 acre landfill for the disposal of 200,926 cubic yards of special waste . . . and 678,148
cubic yards of municipal solid waste” was accepted as complete by the DEP on March 23,
1987.253 This application, like the previous applications to license and expand the CWS site
drew intense citizen opposition in and around Norridgewock.254
This opposition was heightened by the discovery, in April of 1988 of “sewage
fungus” growing in Norridgewock’s Mill Stream (which flows through the CWS facility).255
250
A reference to the self-testing regimen at licensed landfills and the Town of Norridgewock’s then recent
intermittent water quality testing. Linda Begin, Town official calls for more support from state, Waterville
Morning Sentinel, July 21, 1987.
251
Bruce Hertz, DEP knew of Norridgewock seepage, letter says, Bangor Daily News, May 3, 1988.
252
GERBER, supra n. 1.
253
DEP, BOARD ORDER, IN THE MATTER OF CONSOLIDATED WASTE SERVICES INC., NORRIDGEWOCK ME., SECURE LANDFILL
DEVELOPMENT PROJECT, #L-010735-07-P-N, Solid Waste Facility Siting Order and Special Conditions 300 Foot
Disposal Variance Findings of Fact and Order, July 22, 1992.
254
Attorney for the Town of Norridgewock through much of the Phase VII litigation, Jeffrey Thaler described
the local reaction; “It’s like civil war up in Norridgewock.” Donald M. Kreis, Don’t throw away this story,
Maine Times June 17, 1988.
255
Letter from Caroline Hilton, to DEP-BEP May 17, 1988.
33
It was subsequently revealed that the DEP knew that the existing 12.5-acre municipal waste
landfill has been leaking leachate into the Mill Stream since at least October 30, 1986.256
Paula Clark noted in that memo:
A second tributary which drains the conventional municipal landfill was
found to be significantly contaminated presumably by uncontrolled leachate
from that portion of the landfill. The brook was not found to be acutely toxic
utilizing a 48-hour acute toxicity-screening test with Ceriodaphnia
reticulata.257 It had an unpleasant odor, was turbid and where it combined
with the main stream stem of the Mill Stream, it caused a significant growth
of bacteria (sphaerotilus natans258 and Zooglaea ramigera259). . . . The
Investigation of the water quality of Mill Stream warrants reference to the
Enforcement Division.260
Although the Phase VII project was initially approved by the BEP on August 8,
1988, that approval was appealed to Superior Court and subsequently remanded to the BEP
for further hearings on the Issue of water quality in the Mill Stream.261
In its April 29, 1988 Memorandum detailing the flow of leachate from the municipal
solid waste pile into the tributary of the Mill Stream, reference was made to another
Memorandum, dated August 14, 1987, wherein the Division of Technical Services of DEP
suggests; “Expansion of the municipal portion of the landfill,262 with its leachate collection
system, adjacent to the existing conventional facility, will minimize or eliminate further
256
STATE OF MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, MEMORANDUM, From Paula M. Clark, Director,
Land Quality Control, to Consolidated Waste Services, April 29, 1988.
257
The common name for these creatures is “water fleas”. Information on the place water fleas occupy in
stream ecology in the wild at http://.enmu.edu/~lutneskm/abstract.htm
258
“Sphaerotilus natans is a sheathed bacterium that causes problems in polluted fresh waters and in
overloaded waste water treatment plants.” Larry D. Farrell, Idaho State University, Department of Biological
Science, Available at http://www.isu.edu/departments/bios/Professors_Staff/farrell_1.html
259
“Zoogloea ramigera is an aerobic Gram-negative bacillus found primarily in organically enriched aqueous
environments.” Microbe of the Week, available at
http://www.umr.edu/~microbio/BIO221_2001/zooglea_ramigera.html
260
MDEP MEMORANDUM, supra n. 257.
261
MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, MEMORANDUM, to BEP, from Jim Glasgow, Division of
Solid Waste Facilities Regulation, March 25, 1992.
262
Amelioration through expansion is a common theme during this time in dealing with problems at this
facility. See GERBER REPORT, supra n. 1 at 26, recommending significant increase of licensed landfill capacity in
order to deal with the problems that led to the landslide of the municipal solid waste pile on August 14, 1989.
34
discharges to surface water.”263 The sentiments of the Division of Technical Services (that
expansion was the method most likely to decrease pollution) was echoed by then President
of CWS Alva Achorn.264
In early 1990 CWS and the State of Maine began working on a consent decree in
response to the pollution of the Mill stream noted in the August 14, 1987 Memorandum.265
By September of 1990 at least two other episodes of unauthorized discharges into the Mill
Stream had occurred.266 CWS eventually paid $22,000 in fines related to those incidents.267
D. The Landslide and Sale
As noted at the beginning of this paper, the landslide of August 14, 1989 was very
big news in the local media.268 That there was trouble with the 12.5-acre mound of garbage
was not news to the engineers who advised CWS. According to the Consent Decree that
CWS eventually signed, Gerber Engineering had notified CWS in two letters dated April 4,
and April 14 of 1989 that the municipal solid waste pile was unstable.269 The Consent
Decree notes that CWS was informed that “the stability factor for the MSW (municipal solid
waste) landfill slopes was very close to 1.0” and there were steps that should be taken to
263
MDEP MEMORANDUM, supra n. 257.
“Alva Achorn, CWS President, said the stream and its tributaries would not have been polluted if the Board
of Environmental Protection acted on the company’s proposal to expand both the secure landfill and the
landfill that contains municipal solid waste.” Bruce Hertz, DEP knew of Norridgewock seepage, letter says,
Bangor Daily News, May 3, 1988.
265
Marie Howard, CWS, state working on agreement over stream, Waterville Morning Sentinel, February 17February 18, 1990 at 7.
266
Benjamin Wecht, DEP probing clay run-off into Mill Stream, Waterville Morning Sentinel, August 29,
1990.
267
Joe Rankin, CWS pays $22,000 fine for silt in Mill Stream, Waterville Morning Sentinel, September 25,
1990.
268
Marie Howard, supra n. 9.
269
STATE OF MAINE, DEPARTMENT OF ENVIRONMENTAL PROTECTION, ADMINISTRATIVE CONSENT AGREEMENT AND
ENFORCEMENT ORDER, In the Matter of Consolidated Waste Services, Signed Owen R. Stevens, Chairman, BEP,
July 22, 1992; Peter C. Hendrick, Vice President CWS, July 8, 1992 and Janet M. McClintock, Assistant
Attorney General, State of Maine, July 22, 1992.
264
35
prevent a collapse.270 The Consent Decree reports that CWS responded by implementing
“some, but not all of its consultant’s recommendations.”271
In the Consent Decree, CWS was cited for placing excavated soil on top of the MSW
pile instead of in licensed stockpile areas in violation of standard condition #1 of its
license.272 For placing solid waste in such a way that it wound up in the Mill Stream
tributary,273 the groundwater,274 and filled in a “natural resource.”275
CWS agreed to pay $50,000, implement a landfill closure plan for the MSW pile and
submit a plan specifying notification procedures to alert the DEP276 in the event of any future
concerns about slope stability.277
As the DEP and CWS worked on possible engineering solutions to the problems
caused at the landfill by the landslide,278 the closure of entire facility (MSW, special waste
and asbestos area) to all new deliveries caused mounting pressure and short tempers in area
municipalities and regional business’.279 In Norridgewock citizens demanded action from
the DEP and hostility toward local officials increased exponentially. 280 At a meeting in the
270
Id. at paragraph 4.
Id. “CWS President Gordon Hurtubise said Tuesday he followed all but one of Gerber’s recommendations,
the one calling for construction of a berm on the west side of the landfill, which failed first. That failure set off
a chain reaction, causing six large crevices to run across the face of the landfill.” Marie Howard, CWS
forewarned of landfill flaws, Waterville Morning Sentinel, September 13, 1989.
272
MDEP ADMINISTRATIVE CONSENT AGREEMENT AND ENFORCEMENT ORDER, supra n. 270 at paragraph 9.
273
Id. at paragraph 10.
274
Id. at paragraph 11.
275
This reference is to the tributary to the Mill Stream classified as Class B waters pursuant to 38 M.R.S.A. §
467 (4) (I). Id.
276
There is no provision in the Consent Decree for notification of abutters or the Town of Norridgewock. Id.
277
Id. at paragraph 16.
278
“The landfill, closed since Monday’s landslide, looked and smelled worse Friday as five days of sun and 80
degree temperatures on exposed garbage added to an already grim picture.” Marie Howard, CWS, DEP search
for landslide solutions, Waterville Morning Sentinel, August 19-20, 1989. While 50,000 yards of sand was
hauled in to construct a barrier around the collapsed mound, test boring and seismic monitoring continued. Id.
At one point CWS was preparing to fly over the landfill and dump lime on the open crevices, but the DEP ruled
the plan “unworkable.” Id.
279
Marie Howard, Sludge piles mount as CWS stays closed, Waterville Morning Sentinel, August 17, 1989.
280
Marie Howard, Tempers flare at CWS meetings, Waterville Morning Sentinel, August 22, 1989. In a
description of a day of tours and meetings with State Senators and local officials, the article described a scene
from an afternoon meeting in the Norridgewock Town office:
271
36
Norridgewock school nine days after the landslide area residents gathered to question the
DEP, representatives from CWS and local officials.281 Throughout the meeting loud calls for
the immediate closure of CWS were cheered with foot stomping and applause.282 After
Nancy Oden, an activist who had taken part in the opposition to the Township 30 ash landfill
proposal asked some questions of the Board of Selectmen, the meeting was suddenly
gaveled closed.283 Without warning a local resident rushed the table where the Board of
Selectmen were seated and was grabbed by a deputy from the Somerset County Sheriff’s
Department.284 Within seconds the pair was surrounded by a large group of local residents
and environmental activists who linked hands and made it clear that there would be no arrest
and the situation eventually was defused.285
In response to the crisis generated by the landslide, State Senator Judy Kany (DWaterville) the Chair of the Joint Standing Committee on Energy and Natural Resources
called a hearing in the State Office Building on September 1, 1989.286 At the hearing, Alan
Jones, engineer for CWS and State Geologist Walter Anderson gave their assessments of the
cause and the effects of the landslide.287 The Committee also heard from town officials,
At one point at the second meeting, Norridgewock Town Manager Julie Magoon left the
room. And, for a few moments, it looked as though Norridgewock Selectman Richard
Webber, who got out of his chair shouting, was going to (but didn’t) take a poke at
Norridgewock resident Wendell Davis, who accused Webber of “not caring.”
“Don’t tell me I don’t care,” shouted Webber as he rose from his chair and moved
toward Davis. Id.
281
Marie Howard, Cry to close CWS rings loud, Waterville Morning Sentinel, August 24, 1989.
282
Id.
283
“The tension in the air erupted at the very close of the session when First Selectman Dwight Newman,
without warning, banged the 21/2 hour session closed.” Id.
284
Id.
285
“It didn’t take long for Jackson to realize he was in the middle of a potentially explosive situation. Jackson
warned Potratz about his language, and after some further discussions, peace settled in and the circle was
broken. Id.
286
Marie Howard, CWS license status a tricky proposition, Waterville Morning Sentinel, September 1, 1989.
The article also noted that the Norridgewock Board of Selectmen voted to hold a hearing on October 31, 1989
to consider revoking or suspending CWS municipal solid waste landfill permit. Id.
287
Marie Howard, State hears causes of CWS slide, Waterville Morning Sentinel, September 2-3, 1989.
“According to statements Friday, the height of the landfill was about 65 feet when it went, and under the
original license issued to Lappie Sanitary Landfill – which was transferred to CWS the height was set at 35
37
such as Rumford Town Manager John Madigan, who spoke of the fiscal crisis that the
continued closure of the municipal waste landfill at CWS was causing288 and from the Vice
president of KTI289 who noted that the incinerators were receiving an extra 150 tons of trash
a day and would not have the capacity to continue at that rate for long.290 By mid September
CWS was receiving waste into its “secure” areas and operating under a temporary limit of
piles no higher than 20 feet and a mandatory 3 to 1 slope on the piles.291
On June 18, 1990 the Maine Department of Environmental Protection accepted an
application to accept a transfer all of CWS’ licenses at the Norridgewock site to Waste
Management Inc.292
From CWS to Waste Management Inc.
“As I understand it, Waste Management, Inc. acquired all the shares of Consolidated
Waste Services, Inc. (“CWS”) on October 15, 1990.”293 So begins the statement of “Title,
Right, and Interest” in the latest application294 for expansion (45 acres, approximately 4
million cubic yards)295 at the Norridgewock facility.
There is no deed in the Somerset County Registry of deeds granting real property
from CWS to WMI. In “Title, Right and Interest” section of the January 2001 application
there are copies of five deeds recorded at the Somerset County Registry of Deeds
feet. Id.
288
“Rumford Town Manager John Madigan said it is costing his town $3,000 more each week to dispose of its
waste since the CWS landslide.” Id.
289
Owners of the Penobscot Recovery Facility (PERC) and the Maine Energy Recovery Corp. (MERC). Id.
290
Id.
291
Marie Howard, Town won’t battle CWS on taking in more waste, Waterville Morning Sentinel, September
16-17, 1989.
292
DEPARTMENT OF ENVIRONMENTAL PROTECTION, BOARD ORDER, IN THE MATTER OF CONSOLIDATED WASTE SERVICES,
INC., Site location and Solid Waste Order, Transfer of License, Christopher Livesay, Chairman, October 10,
1990.
293
Letter from James T. Kilbreth, Attorney at Law for the firm Verrill and Dana, to Steven Poggi, P.E.
Division Manager – Engineering, Northern New England Waste Management, April 20, 2001.
294
GEO SYNTEC CONSULTANTS, MDEP APPLICATION AND GENERAL INFORMATION REQUIREMENTS, PERMIT APPLICATION
PHASE 8 EXPANSION PROJECT, CROSSROADS LANDFILL, NORRIDGEWOCK, MAINE, Volume I of VIII, January 2001 at § 2.
295
Id.at § 24 attachment A “Public Notices”.
38
transferring property to CWS296 and three other deeds conveying real property to Waste
Management of Maine, Inc.297 There are also, in the Somerset County Registry of Deeds,
fourteen other deeds conveying real property to WMI which was then conveyed to Clark and
Ford General Partnership.298
This paper’s coverage of the procedural issues, hearings and litigation surrounding
specific expansions, enforcement actions or variances related to CWS and WMI ends with
the phase VII expansion noted above and the issues surrounding post landslide amelioration
and transfer to WMI.299
I will close with a brief corporate profile of WMI. With 95 acres of presently
permitted landfill capacity on an 897 acre site in the heart of Norridgewock that employs
twenty-one workers and accepts 1,500 tons of waste each day,300 the fortunes of WMI and
Norridgewock are intertwined for the foreseeable future.
Waste Management Incorporated
As noted above, WMI is the largest waste management company on earth. WMI
incorporated on September 30, 1987.301 According to the SEC 10K filings for the year
296
Charles Blood to Consolidated Waste Services, Inc., recorded in Book 1303, Page 47, on November 10,
1986. Avis E. & Alice E. Emery to CWS, recorded in Book 1317, Page 250, on January 9, 1987. Elizabeth P
& Herbert D. Lappie to CWS, recorded in Book 1116, Page 71 (no date legible). Herbert D. & Elizabeth P.
Lappie to CWS, recorded in Book 1116, Page 79, on December 23, 1983. David W. & Elizabeth Y. Andrews
to CWS, recorded in Book 1206, Page 266 on July 31, 1985.
297
Kendall K. & Barbara Baker to WMI, recorded in Book 1840, Page 244 on December 9, 1992. Raymond L
& Emerald A Lancaster to WMI, recorded in Book 1861, Page 98, on January 29, 1993. Laura C. Doyle to
WMI, recorded in Book 1871, Page 62, on March 11, 1993.
298
Eg. Abbot to WMI, Book 1781, Page 136, subsequently conveyed to Clark and Ford, Book 2379, Page 65.
299
There has been some reference to the Phase VIII expansion Application of January 2001. See supra,n. 295.
300
WASTE MANAGEMENT CROSSROADS FACILITY, available at
http://www.wastemanagement.com/pdf/CrossroadsFlyer.pdf
301
“ The company known today as Waste management was originally incorporated in Oklahoma under the
name USA Waste Services, Inc. In 1995, USA Waste Services reincorporated in Delaware. Then in 1998,
USA Waste merged with the company formerly known as Waste Management, Inc. Waste Management,
Investor Relations – Frequently Asked Questions, at http://www.wm.com/inv/corp/faq.asp
39
ended December 31, 2000, WMI had approximately 57,000 employees in North America
alone.302 The current assets of WMI are worth $18,565,000,000.303
Like any large company, WMI has had its share of litigation. In 1991 the Ventura
County Sheriff’s Department was called upon by then Chair of the County Board of
Supervisors, Maggie Erickson-Kildee to “investigate and report on the historical background
of Waste Management, Inc.”304 The Sheriffs Department reported on WMI’s involvement in
ten criminal cases in five states, resulting in a total of $5,112,950.00 in fines and penalties.305
302
WASTE MANAGEMENT INC., FORM 10-K, ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES AND
EXCHANGE ACT OF 1934, for fiscal year ended December 31, 2000 at 6.
303
Id.at 33.
304
LARRY W. CARPENTER, UNDERSHERIFF, VENTURA COUNTY SHERIFF’S DEPARTMENT REPORT ON WASTE MANAGEMENT,
September 20, 1991 available at http://www.ebic.org/company/wmx/ventura.html
305
Id. at 7.
40