In the court filing the Penobscot Nation and Conservation Law Foundation argue the State and Casella attempt to strip Maine’s legal standards of meaning and “are essentially a rubber stamp” of Casella’s application.
Some excerpts from the filing follow or Read the full text here.
The State that has repeatedly argued that any conditions can be revisited and strengthened at the licensing stage. What unequivocally cannot be achieved at the licensing stage is a full accounting of the environmental injustice of this expansion, where the only reasonable outcome is a denial of the PBD application.
DEP wholly fails to consider sustenance fishing practices or rights of the Penobscot Nation, a legal and cultural aspect that makes JRL’s pollution of the River uniquely unjust. The State now claims, without citation to any supporting evidence, that pouring over 21 million gallons of toxics-filled fluid into the River does not affect river segments 1.6 miles upstream.
Moreover, the State’s reasoning rests on two false premises: 1) JRL’s leachate, flowing from Nine Dragons, is the only effect the landfill has on the River; and 2) fish in the Penobscot River do not swim upstream. Agency action is arbitrary and capricious, and an abuse of discretion, where the agency’s decision has no rational factual basis or exceeds the bounds of reason.
State’s Claim of PFOS Testing Irrelevance is Contrary to Second PBD.
The State now argues that the “PFOS” testing is irrelevant to
any potential contamination from JRL’s leachate. That assertion begs the question why DEP highlighted this new evidence in the Second PBD in the first place— directly after its discussion of contaminated effluent flowing from Nine Dragon’s outfall into the River. DEP clearly tried to present the PFOS testing as counter evidence to contamination from JRL’s leachate leaving Nine Dragons, which is why
Casella likewise relied on those results to minimize the risk of Nine Dragons’ discharge in its own
brief. DEP’s attempt to now recast that same evidence as irrelevant, without any explanation for the shift, underscores the arbitrary and post hoc nature of the State’s position.
DEP Falsely Asserts JRL’s Leachate is Sole Source of Expansion’s Impacts.
Petitioners have repeatedly raised, that landfill gas can account for a substantial—indeed, comparable or greater—share of PFAS releases relative to leachate. DEP’s failure to consider this evidence—particularly given that the Penobscot Nation is in the 99th percentile in Maine for the toxic releases to air EJ index—renders its decision arbitrary and capricious and an abuse of discretion.
State’s Sustenance Fishing Argument Overlooks that Some Fish Swim Upstream. In short, fish can and do swim upstream, creating an exposure pathway, and the fact that Nine Dragons sits 1.6 miles downriver of sustenance fishing segments is not a rational factual basis for utterly ignoring sustenance fishing in the Department’s analysis. The agency’s failure to address sustenance fishing rights and
sustenance fishing consumption levels when assessing risk for the Nation rendered their
environmental justice analysis arbitrary and legally erroneous.
DEP Failed to Consider Sustenance Fishing Rights.
The cumulative burden of landfill pollution on a River cannot be reasonably assessed without considering a Federally recognized Tribe’s unique sustenance rights along that river. That omission blatantly disregards a fact necessary for a reasoned decision. It is especially arbitrary considering this Court’s explicit instruction that DEP account for the Nation’s “intimate relationship” with the River.
DEP’s and Casella’s position—that health disparities are irrelevant absent a direct causal link to JRL’s pollution—reflects a fundamental misunderstanding of environmental justice, which requires consideration of cumulative burdens and community vulnerability, including existing health disparities.
Yet again, the State misconstrues Petitioners’ argument to rebut a straw man version of it;
Petitioners did not contend that it was unreasonable to examine PFOS levels in fish in the
Penobscot River. Rather, Petitioners argued, and maintain, that it is unreasonable to not address the PFAS compounds that actually predominate in JRL’s leachate: PFHxA, PFBS, PFBA, PFPeA, or PFHpA. Clearly, these are testable compounds, because they were found in JRL’s leachate. These are lso short-chain compounds,which leachate treatment technology can struggle to capture. The Second PBD contains no meaningful discussion of those compounds’ presence or bioaccumulation in the River.
In their briefing, the State and Casella attempt to portray municipal solid waste leachate as
a relatively simple liquid, comprised largely of PFAS and a waning set of industrial legacy toxics;
this is contrary to the record…. DEP’s own consultants acknowledged that “treating landfill
leachates containing PFAS is a challenging proposition” due to the “complex matrix” of “organic,
inorganic, and other constituents.”
Similarly, the record reflects that landfill gas contains additional toxics. These risks are
particularly significant given that the Penobscot Nation is in the 99th percentile in Maine for the
toxic releases to air EJ index; this means that these exposure levels combined with demographic
vulnerability are higher for the Penobscot Nation than nearly all communities in the state.
Moreover, the Penobscot Nation has some of the highest lung cancer rates in the State, and EPA’s
EJScreen data show that Indian Island is in the 99th percentile nationally for asthma-related health
indicators.
Casella states that if they are not permitted to expand JRL, they will not build a leachate
treatment system and will therefore send more PFAS pollution into the Penobscot River. However there are numerous methods through which the State could still order PFAS treatment of JRL’s leachate regardless of any expansion.
The full brief is available on our Resource Page.
