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Abstract

The human family is engaged in a noble struggle against the law of entropy, seeking to turn back or at least retard the inexorable process by which all matter in the known universe passes from useful to useless form. The political and legal system generally refers to useless matter as solid waste; in Maine the Legislature has chosen to wage this struggle against entropy and discourage production of entropical by-products through the enactment of the state's first comprehensive waste management law, "An Act to Promote Reduction, Recycling and Integrated Management of Solid Waste and Sound Environmental Regulation" (hereinafter "the Act"). In broad terms, the Legislature sought to discourage the production of solid waste through the establishment of a solid waste hierarchy that makes the reduction of waste generation the top priority, and "land disposal of waste" the least preferable of five identified alternatives to reduction. The Act set forth ambitious recycling goals and established the Maine Waste Management Agency as the branch of state government with primary responsibility for achieving the goals of the legislation. The most controversial aspect of these reforms in solid waste policy has been, undoubtedly, the provisions mandating that the Agency identify Maine's need for additional landfill capacity and then proceed to build and operate such facilities as are needed to meet this capacity. The Agency's initial effort to choose two "special waste" landfill sites, one in southern Maine and another in the northern section of the state, was a failure; on January 9, 1992, the Agency's Facility Siting Board unanimously rejected the last of the proposed sites despite the Agency's expenditure of $ 400,000 in consulting fees and studies over a period of more than two years. The Agency thus was unable to meet its statutory deadline of March 1, 1992 to identify disposal capacity sufficient to meet Maine's needs through 1995. By mid-1992, the Agency had changed course and was openly admitting that there may not have been such a pressing need for additional capacity after all; the official in charge of the siting project admitted that a commercial facility just over the New Hampshire border would meet Maine's needs in the immediate future and the Maine siting project would therefore refocus on creating a "safety net" in the event the New Hampshire facility was no longer available. This Comment represents an effort to assess Maine's landfill siting process, to identify constitutional flaws in the statutory and regulatory approach that contributed to the 1992 siting deadlock, and to make proposals for legislative and regulatory reform designed to address Maine's waste disposal needs while remaining sensitive to environmental concerns and the unpopularity of solid waste facilities among their proposed neighbors. In essence, the recommendation is that Maine get out of the landfill business itself while adopting a series of strict safeguards designed to assure that entities remaining in the landfill business do not site or operate their facilities capriciously.

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