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Judge Upholds State Permits for Hampden Waste-to-Energy Plant

By Nok-Noi Ricker | Bangor Daily News  |  March 15, 2017

HAMPDEN, Maine — In a decision that affects trash disposal for more than a hundred Maine communities, a Superior Court judge has denied a competing solid waste disposal group’s arguments and upheld state permits for a new waste-to-energy plant by Fiberight LLC in Hampden.

Justice Michaela Murphy, in a 30-page decision issued Wednesday, affirmed the Maine Department of Environmental Protection’s decision to issue permits to Maryland-based Fiberight for air emissions, solid waste processing, stormwater management and compliance with the Natural Resources Protection Act for a $69 million waste processing and recycling facility on the Cold Brook Road.

“We won on every single technical merit,” Fiberight CEO Craig Stuart-Paul said Wednesday afternoon by phone. “We’re delighted. We continue to prove to everyone that we have a good product despite PERC’s bad behavior.”

Penobscot Energy Recovery Co. in Orrington — along with its majority owner, USA Energy of Minnesota, and Exeter Agri-Energy — filed the appeal in August 2016 in Kennebec County Superior Court, a month after the DEP permits were issued, claiming there were “serious deficiencies in the record” that included Fiberight’s failures to demonstrate the technical and financial abilities to build the plant.

The case was later transferred to the Business and Consumer Court in Portland.

Murphy went through each claim and determined that Fiberight and its partner, the Municipal Review Committee, did provide the items needed and that the DEP did not abuse its discretion when issuing the permits.

“The decision sends a strong signal that our project adheres to the environmental laws and regulations in Maine,” Greg Lounder, Municipal Review Committee executive director, said in a Wednesday press release.

The MRC is a nonprofit organization that formed in 1991 to represent the garbage disposal interests of a group of towns, which now total 187, that currently send their trash to PERC. The MRC is also a part owner of PERC, for now. In September 2016, the MRC board voted to accept a $5.4 million buyout to exit a three-party partnership that owns the Orrington facility, which ends the partnership for good on March 31, 2018.

MRC leaders started looking for alternatives about six years ago because they believe PERC will not be profitable after 2018 when a lucrative above-market contract for the electric power it generates from burning trash expires.

The MRC now has contracts to handle the post-2018 trash needs for more than 100 towns, and at the end of 2015 entered a partnership with Fiberight to build the Hampden facility, which is scheduled to open in early 2018.

“On behalf of the 115 member communities who plan to send their [municipal solid waste] to Fiberight in 2018, we are very thankful that Justice Murphy made this decision and appreciate the timeliness in which it was issued,” Lounder said. “We were confident that the courts would uphold the permits because of the thorough and detailed review that DEP took before issuing them. Despite the belief that we would prevail, the decision provides relief and additional assurances for our project.”

Stuart-Paul described the lawsuit as “frivolous and malicious” and an attempt to stop construction of the 144,000-square-foot plant that is designed to change trash into biogas and that, when open, will provide direct competition for PERC.

“It’s an overt effort by [PERC] to derail us,” he said. “They only survive if we fail. There is not enough waste to go around.”

Robert Knudsen, vice president of USA Energy Group, said in a statement issued Wednesday that “we accept the court’s decision and do not intend to pursue this matter further.”

The company stands behind the claims made in the lawsuit “and are concerned about the precedent that the DEP has set for future development projects,” Knudsen said. “It is clear that the court is willing to give the DEP wide discretion in making those judgements.”

He added that “PERC is continuing to make significant investments in its Orrington facility and to line up municipal and commercial customers in support of our post-2018 operating plan.”

David Madore, director of communications for the Maine Department of Environmental Protection, said the agency would have no comment on the court’s decision.

To get the project started, the MRC and Fiberight officials held a groundbreaking in October 2016 at the entrance to the site on Coldbrook Road. In February, Fiberight went before the Finance Authority of Maine to ask for help connecting to $45 million in tax exempt bond money to build and operate the plant. FAME held a public hearing and its board is expected to make a decision this month. FAME was approached because it offers the best interest rate, Stuart-Paul said last month.

The lawsuit did little to slow the project, he said.

“The facts are the facts. We followed the laws and the judge came to the inevitable conclusion: PERC — you’re wrong,” Stuart-Paul said. “Now, we’re one step closer to getting the project done.”

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