by Scott Thistle, Regional Editor
AUGUSTA – A portion of a January decision by the Maine Board of Environmental Protection that issued new industrial pollution permits for the Androscoggin River is being appealed by FPL Energy Maine Hydro LLC in Kennebec County Superior Court.
FPL is appealing a portion of the permits that require it to share in the costs of pumping oxygen into the river at Gulf Island Pond. FPL owns and operates the hydroelectric dam that creates the pond. In the appeal filed earlier this month, FPL argues the BEP cannot hold the company responsible for pollution in the river as FPL does not discharge any pollution to the river. The appeal also states the company’s rights to due process under both state and federal law were violated. It is asking a judge to overturn the portions of the order that apply to FPL.
New discharge standards for two paper mills on the river and as well as requirements for the dam were approved in an unanimous BEP vote after a lengthy and contentious hearing process that stretched over several months, ending with the January vote.
In his 21-page appeal of the permit conditions Jack Montgomery, the attorney working for FPL, states among other issues the BEP order is “in excess of the statutory authority of the agency, made upon unlawful procedure, affected by errors of law, is unsupported by substantial evidence on the whole record, and/or is arbitrary or capricious.”>/p>
The appeal states the dam adds no pollutants to the river above it and the BEP order reflects, “the stubborn determination of certain (Maine Department of Environmental Protection) staff members to ensure that FPL is improperly “stuck” with responsibility for mitigating (non-point source) and others’s pollution discharges into the river.”>/p>
At the heart of the appeal is a dispute over a computer model used by the BEP to determine how much oxygen needs to be pumped into the river at Gulf Island Pond. FPL maintains the model is flawed and that the BEP agreed it was flawed in internal memos, including an e-mail between staff members that suggests the dam operator is being unfairly “stuck” with the costs of adding oxygen to the river.
Liquid oxygen is pumped into the river at the pond with a device known as a bubblier. Another bubblier would need to be installed and operated at the pond under the recent order.
On Monday, Montgomery said the appeal emphasizes three main issues: the dam is not a polluter of the river, the BEP has acknowledged deficiencies in its computer model for adding oxygen to the river and the outcome, including FPL paying for a share of the second bubblier costs, was “pre-ordained.”>/p>
Environmental organizations including the Natural Resources Council of Maine have also taken exception to the concept of adding oxygen to the river instead of reducing the amount of pollution discharged to the river.
Nick Bennett, a staff scientist with the NRCM, said an appeal by his organization was withdrawn earlier this month because they were conserving their resources for the next round of discharge permits, which will be up for review in 2010.
Bennett said their appeal focused on new discharge limits the BEP set for Verso’s paper mill in Jay. Their appeal charged the BEP with violating Maine’s water quality laws and also the federal Clean Water Act.
“The goal of the clean water act is to reduce and eliminate pollution to our rivers,” Bennett said. “We believe they needed to reduce pollution to levels that are reasonable and achievable before we start talking about pumping oxygen into the river … that seems to me an obvious way to address this problem, rather than exotic solutions like sticking more oxygen into the river, it just doesn’t make sense.”>/p>
Montgomery said the appeal process could take up to a year to work its way through the courts.