The final documents have been filed, and now it’s time for the state Department of Environmental Protection to decide if the Maine Turnpike Authority is allowed to proceed with a new toll plaza in York.
Both the MTA and Coalition for Responsible Toll Collection, comprised of the town of York and the group Think Again, filed their final briefs recently as part of the DEP hearing process. The MTA argues in favor of its plan for a cash-booth and highway-speed toll plaza — called an “open road tolling” or ORT plaza. The coalition argues an all-electronic tolling gantry with no cash booths is the most appropriate alternative.
“At this point, the DEP evaluates the evidence and writes a draft proposed order,” said assistant attorney general Peggy Bensinger. “That order will go out for a period of public comment and then they will write a final order for the commissioner’s signature,” she said, referring to DEP Commissioner Paul Mercer.
The deadline for submitting the draft order is Aug. 28, she said.
Briefs filed by the MTA and the coalition cap a process that began last December when the town and Think Again filed a request for a hearing. At the heart of the hearing process is whether the DEP should issue a permit under the Natural Resources Protection Act — necessary before the toll plaza can be built.
The MTA needs permits from the DEP and federal Army Corps of Engineers, which approved the project last spring. After many pre-hearing filings and many letters in support of both the MTA’s and coalition’s stances, the DEP hearing was held in May.
The final briefs recap the entire scope of testimony and documents submitted the past seven months. Both sides agree the case rests on whether the coalition proved its claim that all-electronic tolling (AET) is the most “practicable” alternative for a tolling facility in York — the mainline plaza for the entire turnpike system.
For the MTA, the DEP’s decision-making process couldn’t be easier.
“The record is clear,” wrote the MTA’s attorney Joanna Tourangeau. The authority’s application for a DEP permit meets “each and all of the permitting standards. The record clearly establishes that AET does not meet the definition of practicable because AET is not feasible upon consideration of cost, existing alternative technology (ORT) and logistics.”
The MTA said there is 1.46 acres of total wetland impact, and the MTA “has provided for compensation for those minimal impacts, which vastly exceeds any applicable requirements,” she wrote. This includes an in-lieu fee of $281,649, an MTA-funded wildlife passage at a location selected by the Maine Department of Inland Fisheries and Wildlife, and a conservation easement on 22 acres of a 36-acre property it bought off Chases Pond Road to accommodate the plaza.
The MTA, Tourangeau wrote, “has spent millions of dollars analyzing how and where to prudently implement highway-speed tolling on the turnpike.” ORT, she argues, presents “no toll increase, no impacts to bonding, no job elimination.” In fact, she wrote, ORT will increase revenues by about $1 million in the first year. AET, on the other hand, would have “broad consequences” including the need to redesign the toll system, new traffic and revenue analyses, “a downgrade in the MTA bond rating, higher future borrowing costs.”
The coalition makes as its first argument the fact an all-electronic tolling gantry, as opposed to a full toll plaza with cash booths, has no impact on the environment. Despite all efforts by the MTA to mitigate wetlands impact with an ORT plaza, AET does not disturb any habitat.
But attorney Scott Anderson reserves most of his arguments for what he called errors in the MTA’s analysis that “with all due respect…are either evidence of gross negligence or an intention to manipulate the data to support a pre-determined outcome.”
Anderson argues at the time the central MTA study on ORT versus AET came out in 2014, the MTA was already in the process of converting some of the smaller toll booths along the system to ORT. He references testimony by MTA Director Peter Mills to that effect. Thus, he argues, the decision to proceed with AET was made even before the study was commissioned and the MTA had already made up its mind.
With that as a backdrop, he argues the MTA “used the worst possible assumptions for AET” that came out of that 2014 study. He asserts that after he reviewed the study, he came to quite different conclusions. When upfront construction and maintenance costs are figured into the equation, the study shows “an ORT facility was likely to result in a $6.6 million revenue shortfall” as compared to continued operation of the existing plaza. AET, on the other hand, “was 90 percent likely to generate a revenue surplus of $1.5 million” because of difference in cost to build a gantry.
He further argues the 2014 study is out of date, and “took place years too soon, long before the MTA intended to file an application for permits. As such… (it) can no longer support any alternatives decision necessary for the MTA to meet its statutory burden in this proceeding.”
Anderson did file a post-hearing request with the DEP that would have required the MTA to update its study, but hearing officer Marybeth Richardson turned down the request.
The coalition argues an ORT facility “is a bad idea for the Maine Turnpike, its users and the state of Maine,” Anderson wrote. “AET is the only practicable alternative, and each year that passes this conclusion only grows stronger” as more tolling agencies nationwide convert to AET.