Below are two bits of the legal brief submitted 5/4/20 to Maine DEP's Board of Environmental Protection opposing the Nordic Aquafarms by grassroots ecodefenders Upstream Watch: First a brief introduction to what agencies are involved and what laws they must follow. Second: a three part summary of their argument
INTERVENOR UPSTREAM WATCH’S 5/4/20 POST-HEARING BRIEF Re NAF
Read full 96 page brief here
SUMMARY OF ARGUMENT.
The environmental effects of this huge, industrial fish processing facility are not benign as suggested by initial press releases. As the project developed, Upstream was alarmed by a consistent pattern of insufficient and misleading information issued by Nordic.
Three troubling themes consistently emerged:
(1) the selected site is unsuitable for the project;
(2) the application is fatally incomplete, and
(3) Nordic Aquafarm’s information, when provided, fails to meet the statutory and regulatory criteria.
(1) THE SELECTED SITE IS UNSUITABLE FOR THE PROJECT.
Nordic is trying to fit a large, square peg into a small, round hole by selecting an unsuitable site and trying to change the site’s basic character instead of seeking a suitable site. There is no better example of this than the Nordic’s soil replacement plan. Nordic selected a site that contains almost exclusively spongy clay soils (a situation that caused subsidence problems for the Nordic Aquafarms AS back in Norway). To address this problem, Nordic proposes to remove the natural soils over a 35-acre portion of the site to a depth of, to depths over 50-feet (SLODA Apl., Sect. 20, Text, p. 1-2) and after removing those soils, replace the clay with gravelly soils which would be more capable of supporting the proposed tanks. Upstream estimates this soil replacement project will require roughly 45,000 dump truck loads, necessitating extensive travel over state and local highways.
Moreover, the proposed site includes nineteen (19) wetlands, swamps, marshes, and nine (9) streams. Nordic proposes to reconstruct artificially one stream and destroy the remainder. In lieu of preservation or replication of the remaining natural resources set to be destroyed, the Nordic proposes to “compensate” for the environmental damage with cash.
This “pay to pollute” scheme is wholly unnecessary when there are other available and more suitable sites which would not require such a serious destruction of natural resources.
Given the extreme measures proposed to overcome unsuitable soils and the total destruction of wetlands, combined with the fact that virtually the entire site is mature forest that would be destroyed, and that the portion of Penobscot Bay that would receive Nordic’s wastewater is slow moving and shallow, it is clear the site is unsuitable for the project.
(2) THE APPLICATION IS FATALLY INCOMPLETE .
Upstream has tracked the Applicant’s submissions against the statutory and regulatory requirements and this review has demonstrated that Nordic’s application is woefully incomplete.
See Feb. 18, 2020 Comment Submitted by Mike Lannan regarding Nordic Aquafarms Technical Ability (tracking each statutory and regulatory requirement for the pending applications and whether Nordic has complied). A true copy of the Lannan matrix showing the incompleteness of Nordic’s filings is attached hereto as Exhibit A.
The burden is on Nordic to demonstrate compliance in its applications for permits. Even so, the DEP has patiently attempted to lead Nordic through the process, with letters and memos itemizing application submissions that required clarification and modeling performed with the Department’s expertise and expense. Despite this guidance, the Nordic application remains fatally incomplete.
Throughout the hearing, it was evident that Nordic had failed to provide certain required information for its permit applications, including but not limited to, financial capacity, the actual effects of wastewater discharge including far-field dilution, and onsite wildlife surveys.
(3) NORDIC FAILS TO MEET THE STAUTORY AND REGULATORY CRITERIA.
Nordic only partially addressed other regulatory requirements, perhaps in the hope that those requirements would be overlooked during the permitting process or that Nordic would be allowed to figure out how to comply with those sections of the regulations after the fact, as permit conditions. Nordic should not be allowed to evade meeting all filing requirements for its permit requests at this time.
The proposed project size is huge. Within the project footprint, one could fit Gillette Stadium, Fenway Park and two TD Gardens. A mistake on this application can have catastrophic environmental impacts.
Nordic has failed to address critical material requirements of the statutes and regulations, and as such, its application cannot be granted as a matter of law. All regulations and statutory requirements must be met as a precondition to the award of a permit. After-the-fact attempts at compliance is not only unlawful but constitutes an unreasonable and unacceptable risk.
This application “sets the bar” for all future aquaculture applications in the state of Maine. If the Board of Environmental Protection insists on complete compliance with applicable statutes and regulations and if the Applicant meets all statutory requirements, aquaculture entrepreneurs worldwide will note that Maine welcomes aquaculture but only aquaculture that is compliant with all legal requirements.
INTERVENOR UPSTREAM WATCH’S 5/4/20 POST-HEARING BRIEF Re NAF
Read full 96 page brief here
INTRODUCTION"Intervenor Upstream Watch (“Upstream”) submits this Post-Hearing Brief to assist the Maine Board of Environmental Protection (“BEP”), the Maine Department of Environmental Protection (“DEP”), The Commissioner of Environmental Protection (the “Commissioner”) and the DEP Staff (“Staff”) to evaluate the applications of Nordic Aquafarms, Inc. submitted under the Maine Site Location of Development Act, (“SLODA”), the Maine Natural Resources Protection Act (“NRPA”), the Maine Pollution Discharge Elimination System (“MPDES”), and a Chapter 115 Air Emission License."
SUMMARY OF ARGUMENT.
The environmental effects of this huge, industrial fish processing facility are not benign as suggested by initial press releases. As the project developed, Upstream was alarmed by a consistent pattern of insufficient and misleading information issued by Nordic.
Three troubling themes consistently emerged:
(1) the selected site is unsuitable for the project;
(2) the application is fatally incomplete, and
(3) Nordic Aquafarm’s information, when provided, fails to meet the statutory and regulatory criteria.
(1) THE SELECTED SITE IS UNSUITABLE FOR THE PROJECT.
Nordic is trying to fit a large, square peg into a small, round hole by selecting an unsuitable site and trying to change the site’s basic character instead of seeking a suitable site. There is no better example of this than the Nordic’s soil replacement plan. Nordic selected a site that contains almost exclusively spongy clay soils (a situation that caused subsidence problems for the Nordic Aquafarms AS back in Norway). To address this problem, Nordic proposes to remove the natural soils over a 35-acre portion of the site to a depth of, to depths over 50-feet (SLODA Apl., Sect. 20, Text, p. 1-2) and after removing those soils, replace the clay with gravelly soils which would be more capable of supporting the proposed tanks. Upstream estimates this soil replacement project will require roughly 45,000 dump truck loads, necessitating extensive travel over state and local highways.
Moreover, the proposed site includes nineteen (19) wetlands, swamps, marshes, and nine (9) streams. Nordic proposes to reconstruct artificially one stream and destroy the remainder. In lieu of preservation or replication of the remaining natural resources set to be destroyed, the Nordic proposes to “compensate” for the environmental damage with cash.
This “pay to pollute” scheme is wholly unnecessary when there are other available and more suitable sites which would not require such a serious destruction of natural resources.
Given the extreme measures proposed to overcome unsuitable soils and the total destruction of wetlands, combined with the fact that virtually the entire site is mature forest that would be destroyed, and that the portion of Penobscot Bay that would receive Nordic’s wastewater is slow moving and shallow, it is clear the site is unsuitable for the project.
(2) THE APPLICATION IS FATALLY INCOMPLETE .
Upstream has tracked the Applicant’s submissions against the statutory and regulatory requirements and this review has demonstrated that Nordic’s application is woefully incomplete.
See Feb. 18, 2020 Comment Submitted by Mike Lannan regarding Nordic Aquafarms Technical Ability (tracking each statutory and regulatory requirement for the pending applications and whether Nordic has complied). A true copy of the Lannan matrix showing the incompleteness of Nordic’s filings is attached hereto as Exhibit A.
The burden is on Nordic to demonstrate compliance in its applications for permits. Even so, the DEP has patiently attempted to lead Nordic through the process, with letters and memos itemizing application submissions that required clarification and modeling performed with the Department’s expertise and expense. Despite this guidance, the Nordic application remains fatally incomplete.
Throughout the hearing, it was evident that Nordic had failed to provide certain required information for its permit applications, including but not limited to, financial capacity, the actual effects of wastewater discharge including far-field dilution, and onsite wildlife surveys.
(3) NORDIC FAILS TO MEET THE STAUTORY AND REGULATORY CRITERIA.
Nordic only partially addressed other regulatory requirements, perhaps in the hope that those requirements would be overlooked during the permitting process or that Nordic would be allowed to figure out how to comply with those sections of the regulations after the fact, as permit conditions. Nordic should not be allowed to evade meeting all filing requirements for its permit requests at this time.
The proposed project size is huge. Within the project footprint, one could fit Gillette Stadium, Fenway Park and two TD Gardens. A mistake on this application can have catastrophic environmental impacts.
Nordic has failed to address critical material requirements of the statutes and regulations, and as such, its application cannot be granted as a matter of law. All regulations and statutory requirements must be met as a precondition to the award of a permit. After-the-fact attempts at compliance is not only unlawful but constitutes an unreasonable and unacceptable risk.
This application “sets the bar” for all future aquaculture applications in the state of Maine. If the Board of Environmental Protection insists on complete compliance with applicable statutes and regulations and if the Applicant meets all statutory requirements, aquaculture entrepreneurs worldwide will note that Maine welcomes aquaculture but only aquaculture that is compliant with all legal requirements.
END OF SUMMARY
