Penobscot Energy Recovery Corp. filed an appeal Friday in Kennebec County Superior Court calling for the reversal of the state’s decision to grant permits to first-in-the-nation solid waste plant Fiberight, citing “serious deficiencies in the record.”
It’s the latest bump in the road in the Municipal Review Committee’s move to end the relationship the 187 communities it represents have with garbage incinerator PERC when the contract between the two expires in March 2018.
The deadline for appeals of the Fiberight permits is Monday. PERC is joined by Exeter Agri-Energy in the suit. USA Energy, which is the managing general partner of the PERC incinerator, is also a plaintiff.
Greg Lounder, executive director of the MRC, said in an email Friday night that PERC;s appeal “comes as no surprise to us.”
He said that MRC and Fiberight officials “don’t expect it to impede our project coming on line to meat the municipal solid waste disposal needs of our communities after 2018 in an affordable and environmentally sound manner.”
More than 100 of the 187 communities that now take their trash to PERC have committed to Fiberight when their PERC contract ends in 2018.
The Department of Environmental Protection issued the final permits July 15 to Fiberight, a Maryland-based company that will build a plant that turns organic garbage into energy in Hampden, and the MRC.
DEP officials did not respond immediately to requests for comment late Friday. The next step is for DEP to establish a record on the matter. It has 40 days to file a response. The suit also calls for a public hearing.
The appeal comes several weeks after MRC alleged in court that PERC and USA Energy misused shared partnership money for lobbying purposes of which the MRC did not approve. The MRC municipalities own a 23 percent share of the PERC limited partnership.
The MRC board also said two weeks ago that planning and development costs for the Hampden plan were soaring above what was estimated, largely because they’d underestimated how much work it would be to pitch the plan to municipalities, and voted to triple its project development budget, draining its reserve fund.
The Fiberight plan in June was scaled back when the commitment for 150,000 tons a year of municipal waste didn’t come through, and deadlines for towns to commit have been extended.
When the final permits were issued, a spokesman for the DEP said the “MRC and Fiberight have met the standards set forth in statute and rule.”
The draft permits received multiple opposition comments — not only from PERC, but also from individuals and groups such as the Natural Resources Council of Maine.
All of the opposition comments on the permits submitted to the DEP requested a public hearing. However, DEP spokesman David Madore said at the time the requests for a hearing came nearly a full year after the deadline. The rules on hearings state that a request must be received in writing “no later than 20 days after the application is accepted as complete for processing,” and Fiberight’s applications were accepted as complete for processing on July 15, 2015.
The DEP also found that there was no “credible, conflicting technical information” that merited a hearing, Madore said in July.
USA Energy Vice President Robert Knudsen said in a news release Friday that the DEP “made its decision without the benefit of a public hearing and relied too heavily on inconsistent and incomplete information from the applicants.”
“Maine people who care about the environment should be deeply concerned, as should those communities that have committed to send their trash to Fiberight after 2018,” he said.
The DEP also should have waited for data requests from the U.S. Environmental Protection Agency to be completed, PERC spokesman Ted O’Meara said on the phone Friday. “That’s a pretty significant request they had made.”
The appeal cites concerns similar to those PERC submitted in its opposition comment on the draft permits in July, which included concerns about compliance with Maine statutes, technical ability and financial ability.
A common concern, one also cited by some members of the Legislature’s Joint Standing Committee on Environment and Natural Resources, is that the Fiberight and MRC plan does not comply with the state’s solid waste hierarchy of reduce, reuse, recycle, compost, process, change to energy and lastly, as a final option, burying trash in a landfill. Fiberight needs a certain amount of trash to sustain itself, although the CEO has said that towns still can run recycling programs if they tell the company beforehand. Sending the trash to the Crossroads landfill in Norridgewock is a fall-back option and possible bridge if the plant isn’t built by the time the PERC contract expires.
The appeal said that the permit approval was “arbitrary, capricious, and an abuse of discretion given the contradictory and conflicting nature of the assertions in applications.”
O’Meara said PERC and Exeter are confident they will prevail in the appeal and the energy companies “wouldn’t have gone down this road if they hadn’t felt there were real and serious grounds.”
At stake are millions of taxpayer dollars and hundreds of thousands of tons of trash. Some area towns, such as Oakland, China and Vassalboro, have committed to 15-year contracts with Fiberight. Other municipalities, including Waterville and Winslow, are looking for other options.
About a decade ago, the MRC was faced with a decision on what to do when its long-term waste disposal contract with PERC expires in 2018 at the same time a deal to provide above-market-rate electricity between Emera Maine and PERC also expires. PERC had been getting three times the regular market rate from Emera Maine.
To ensure the plant’s viability, the tipping fees, or charge on the amount of waste a processing plant receives, will increase to $84 to $89 per ton in 2018. MRC members now pay $76 per ton, which drops to $59 per ton after rebates from PERC.
The MRC had determined that it would be too expensive for its towns to stay with PERC, and determined Fiberight was a better alternative financially and environmentally. By the end of July, 108 of the MRC’s 187 municipalities had committed to stay in the MRC and send their trash to the Fiberight plant, and departing members will either stay with PERC or find other ways to deal with their trash.
The MRC board, at its July 29 meeting, voted to increase threefold the budget for project development and engineering services for the Fiberight project, from $140,000 to $479,462. The money is coming out of the MRC’s reserve fund.
The MRC underestimated how much legwork would be involved in explaining the Fiberight project to residents and officials in its member communities, and a longer-than-expected state permit process compounded the problem, officials said at the meeting.
The MRC originally thought it would take six to seven months to get the permits from the DEP, but it ended up taking about a year.
Lounder said July 29 that the DEP “took the extra care and time that it needed.”
The MRC also alleges that USA Energy Group misused shared partnership money for lobbying purposes of which the MRC did not approve. A judicial settlement conference, which is closed to the public, is scheduled for Aug. 24, and a trial date has been set for Oct. 3 in case those settlement efforts fail.
The board at the July meeting recommended increasing legal advocacy spending by $23,000 to a total of $71,000. The board approved all of the committee’s recommendations unanimously.
Madeline St. Amour – 861-9239
mstamour@centralmaine.com
Twitter: @madelinestamour
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