December 26, 2013

Lawmakers plan to keep close watch on Maine DEP

They'll work to tighten oversight of the department after the Press Herald uncovered failures, but don't expect to investigate its commissioner.

By Colin Woodard
Staff Writer

Maine lawmakers are preparing a series of measures that would tighten oversight of the Department of Environmental Protection, but they are unlikely to order an investigation of the past activities of Commissioner Patricia Aho.

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Maine DEP Commissioner Patricia Aho

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In the new legislative session next month, legislators will consider measures that would put the department under greater scrutiny, with its conduct in the long-term relicensing of dams and the introduction of new “routine” rules and regulations receiving special attention.

Environmental and progressive groups called for Aho’s resignation last summer after the Portland Press Herald/Maine Sunday Telegram reported revelations about her department’s failure to meet key dam deadlines and to adequately implement or enforce certain environmental laws, as well as her past ties to the companies that her department is charged with regulating.

“It’s been clear that citizens statewide have concerns about a lack of transparency, whether it’s issues around the chemical industry or mining rules or dam relicensing,” said Assistant House Majority Leader Jeff McCabe, D-Skowhegan. “It’s clear that there will need to be more public involvement and oversight.”

But legislators said a proposed investigation of the department’s activities under Aho is unlikely to go forward, for lack of evidence that the commissioner has broken any laws. Such evidence is needed in advance, Democratic legislators said, to get the required approval from the government oversight committee, whose membership is split evenly between the parties.

“We’re not going to have specific enough information about something having happened that is illegal rather than simply poor judgment,” said Sen. Christopher Johnson, D-Somerville, who first proposed an investigation this summer. “As much as I am unsettled by what has happened, I think they (at the DEP) have been very careful about crossing the line in terms of what is legally permissible.”


In July, Johnson wrote the head of the state’s independent auditing agency, the Office of Program Evaluation & Government Accountability, asking it to determine whether the DEP had committed “unethical behaviors,” failed to uphold its legislative mandates, or had broken any laws “in the course of actions or failures to act as reported in the recent Portland Press Herald series.”

The series, published in June, reported the results of a seven-month investigation that revealed how Aho had stifled laws and programs she had been paid to defeat in her previous career as a lobbyist for the oil, chemical, waste management, drug and real estate development industries. The series also related allegations of widespread intimidation of DEP staff and examined how the department missed a key deadline in the relicensing of the Flagstaff Dam in Eustis – to the benefit of the dam’s owner, which was represented by Pierce Atwood, the law firm for which Aho had done her lobbying.

Subsequently the Press Herald revealed the department missed similar deadlines at two more dam projects on the St. Croix and came within hours of missing a fourth at the Brassua Dam near Moosehead Lake. In all cases, the missed deadlines irrevocably waived the state’s authority to set terms for water levels in reservoirs and rivers that affect waterfront property owners, fish spawning and passage, and recreation for a generation.

Johnson withdrew his initial request in late July, saying he had realized the language was too broad and that state investigators would require more specific questions to conduct their research. But lacking a smoking gun showing wrongdoing, Democrats have decided to focus on preventing future problems.

“We’re not going after what happened in the past, we’re looking at how we in the Legislature can ensure that things work better going forward,” said state Sen. Jim Boyle, D-Gorham, co-chairman of the legislative committee that overseas the department. “There’s some sense of urgency to this. We don’t want a year or two to go by without having these decisions taken up.”

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