Solid Waste Task Force Attacks Home Rule
(commentary from Maine Townsman, October 1999)
by Linda Lockhart, Legislative Advocate, MMA State & Federal Relations

Municipal home rule authority is coming under the sharpest attack MMA has witnessed in recent years in the context of a "stakeholders" group that has been organized by the State Planning Office to review a variety of solid waste management issues. Preemption of local authority is a perennial issue, but the use of the stakeholder process to attempt to further the goal of preemption is particularly frustrating to witness.

Solid Waste Management Policy Review Task Force

The law that created this committee (PL 1999 c. 525, An Act to Clarify the Solid Waste Laws as They Relate to the Exception to the Ban on New Commercial Landfills) did not specify its membership beyond "representatives of groups interested in solid waste management policy." The State Planning Office controlled the group’s actual make-up and the initial list of invitees consisted of legislators and their staff, three representatives from the State Planning Office (SPO), three from DEP, four municipal representatives (including MMA), one regional planner, one private citizen, and 12 representatives of commercial waste handlers. While the group has expanded to include more municipal representatives, the commercial interests continue to dominate the proceedings.

Among the issues the group is supposed to review is the "proper role of municipal zoning and other local control in regard to siting, expansion and operation of solid waste disposal facilities". The industrial and commercial solid waste companies, with a super-majority of membership on the committee, have come to the meetings with the express goal of completely preempting home rule authority with respect to any land use regulations that govern solid waste facilities. Sam Zaitlin, Senior Vice President of KTI Environmental Systems, which owns waste-to-energy (incinerator) companies, called home rule authority the "demon" of solid waste management policy. Tom Doyle, a lawyer for the Pierce, Atwood law firm which represents a number of solid waste and biosolid management enterprises, is expressly advocating for the abolition of all home rule authority in this area in response to the decision of the voters of Hampden not to expand a land use zone to accommodate the expansion of a commercial landfill there. Don Meagher, Manager of Sawyer Environmental Recovery Facility, a division of Casella Waste Systems, would like home rule to be preempted for solid waste facilities in the same way home rule is preempted by federal law with respect to group homes for the disabled.

Just before the group’s third meeting, the SPO Committee Coordinator, George MacDonald, distributed, without any attribution as to its authorship, an allegedly authoritative memo on the subject of 38 MRSA 1310-U (which lays out a partial preemption of home rule authority) that was based on material provided SPO by Pierce, Atwood’s Tom Doyle. The memo painted a biased picture of current law, to suggest that municipalities are already preempted with respect to their zoning rights, or that type of preemption was at least the legislative intent, all of which is completely untrue.

Following strong protest from municipal members of the group, the SPO decided to treat the "preemption analysis" as a draft and allow other task force members to submit their own drafts. The drafts will be compiled by the an assistant attorney general with the goal of reaching agreement in the group on one analysis of respective roles of the state and municipalities in regulation and land use planning for commercial waste handling and disposal facilities.

The tone and the substance of the State Planning Office/Pierce, Atwood "draft" 1310-U analysis, titled "A description/review of Title 38 1310-U and case law" was obviously intended to further the goal of the commercial waste handlers and their legal representatives involved in the task force. This group has made no secret of their desire to trade in the New England market for waste disposal and their two-pronged effort to make this happen appears to consist of:

1) Lifting the statutory moratorium on siting of commercial waste disposal facilities; and

2) Accomplishing total preemption of local zoning and land use authority so that any rights of self-determination enjoyed by citizens of Maine through their municipal governments will be nullified.

Immediately after the group’s first meeting in August, MMA became concerned about the integrity of this solid waste "stakeholders" process. From our perspective, on the basis of the comments that were recorded (and not recorded) in the working group’s minutes, a bias began emerging in favor of further preemption of municipal zoning authority. After the one-sided analysis of existing state law on the subject was distributed, the State and Federal Relations staff began evaluating whether the Association should continue participating on this lopsided committee. It seemed as if the few municipal representatives were to withdraw from the table, it would become little more than a group of industrial and commercial solid waste interests striving to jockey for position in the garbage market.

Efforts are now being made to expand the various interests that should become part of this process and focus on the procedures that will allow for the development of a balanced record that is inclusive of various points of view. There should be many interest groups beyond municipalities and the commercial solid waste industry involved in the discussion of the state’s solid waste management policies for the decades to come. A stakeholders group that doesn’t include all the stakeholders has limited value.