September 3, 2013

For regulators and Nestle Waters, conflict by the gallon

All three PUC commissioners and Maine's public advocate have ties to Poland Spring's parent company, which is seeking a 25-year contract.

By Colin Woodard
Staff Writer

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A Poland Spring truck heads south on Route 302. Fryeburg’s quality water is the result of quartz-rich geology and clean runoff.

Photos by John Patriquin/Staff Photographer

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Fryeburg residents Bruce Taylor, left, an intervenor in the case, stands with contract opponents Cliff Hall and Nickie Sekera in front of the Poland Spring offices on Main Street in Fryeburg.

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"That is pretty certainly remarkable," said public utilities scholar Sanford Berg, director of water studies at the University of Florida Public Utility Research Center. "It looks to me like a series of appointments has led to a situation where, in retrospect, you might wish to have more diversity and people with somewhat different backgrounds for addressing this particular case."

The commissioners and public advocate are all appointed by the governor and confirmed by the state Senate. Littell was appointed by Gov. John Baldacci, a Democrat who is now a senior adviser in economics and government relations at Pierce Atwood. Welch, Vannoy and Schneider were appointed by Republican Gov. Paul LePage.

Gordon Weil, a utilities consultant from Harpswell who served as Maine's first public advocate in the early 1980s, said governors should be more careful to avoid appointing commissioners and a public advocate with overlapping conflicts. "You can avoid this situation by not appointing people with the same background or who have connections to the same firms," he said. "Any appointee to a regulatory body has to be looked at in terms of how they fit with the whole panel, not just as an individual."

Peter Bradford -- who served on the Maine PUC for 11 years in the 1970s and 1980s, on the New York State PUC from 1987 to 1995, and on the federal Nuclear Regulatory Commission from 1977 to 1982 -- said that in all that time he recalls no more than five recusals of individual commissioners. "It's not an everyday or even an every-year occurrence," he said from his home in Vermont. "It's a really rare event, and to get two recusals on the same case is even rarer than that."

"I must say, I've never heard of a situation where so many appointees came from the same law firm," Bradford added. "When I was in Maine, it would have been something of an eyebrow-raiser to have had a couple of commissioners from either Pierce Atwood or Verrill Dana, because those firms represented something like 80 percent of the utilities that had business before the commissioners."

The governor's office said the Fryeburg case is an unusual event and that the potential for overlapping conflicts will disappear over time.

"To my knowledge, a similar situation has never materialized in Maine," LePage's spokeswoman, Adrienne Bennett, said in a written response. "The circumstance is what we consider a 'perfect storm."'

She said Vannoy had recused himself "based on financial interests" rather than ethical conflicts and that those "will be resolved in the near future rendering him able to serve should these types of matters come before the Commission again." Disclosures show he was a minority shareholder in Wright-Pierce when he was appointed in May 2012.

Bennett noted the tension between finding people with the technical knowledge and experience to serve on the commission and the potential for conflicts garnered while accumulating that experience.

"Governor LePage believes that the nomination of an individual to serve on the Commission is one of the most important decisions that he makes and focuses on finding competent and experienced individuals to serve," she said. "This is not an easy process nor is there an abundance of applicants who are seeking to serve on the Commission."

Others questioned the background of the public advocate. Weil, the first to hold the position, said it was unprecedented for the advocate to have a background representing utilities, rather than consumers. That is nearly so. There have been just five public advocates since the position was created in 1982. Paul Fritzsche, who served in the mid-1980s, had worked with Pine Tree Legal Assistance. Stephen Ward, who held the position for 20 of those years, had been a staff attorney in the Public Advocate's Office. Richard Davies, who succeeded him in 2007 and stepped down in February, had been a legislator and an aide to Govs. Joseph Brennan and Baldacci, but also founded a lobbying firm that represented both consumer groups and utilities. The other two public advocates -- Bradford and Weil -- had consumer-side backgrounds, Bradford having been described by The Washington Post as the "liberal mainstay" and primary nuclear power opponent on the NRC in 1981, when he left to become Maine's second public advocate.

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Additional Photos

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Poland Spring water trucks fill up at the water pumping station at Fire Lane No. 4 along Route 113 in Fryeburg.

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Wards Pond off Route 113 in Fryeburg is part of an aquifer where Poland Spring water trucks fill up and travel through Fryeburg.


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