90 A.3d 428
Me.2014Background
- Mallinckrodt (successor to HoltraChem) is the responsible party for a former chemical plant site in Orrington contaminated with mercury and other hazardous substances stored in five on-site landfills adjacent to the Penobscot River.
- The Maine DEP considered four remediation options (on-site consolidation with/without liner and the preferred “dig-and-haul” off-site removal). Governor favored the costly dig-and-haul option announced in 2005.
- In November 2008 the DEP Commissioner issued a compliance order under the Uncontrolled Hazardous Substance Sites Law (UHSSL) requiring excavation and off-site disposal of all five landfills; Mallinckrodt appealed to the Board of Environmental Protection.
- The Board held a de novo administrative hearing (with procedural orders, prefiled testimony, and outside consultants assisting the Board), then modified the Commissioner’s order to require excavation of two landfills, capping and monitoring the rest.
- Mallinckrodt sought review in the Business & Consumer Docket and raised statutory-authority, APA rulemaking, confrontation/cross-examination, and political-bias evidence issues; the court affirmed the Board’s modified order.
Issues
| Issue | Mallinckrodt's Argument | DEP/Board's Argument | Held |
|---|---|---|---|
| Commissioner s authority under UHSSL §1365(1) to issue compliance orders | §1365(1) applies only to emergencies; remedy requiring cleanup must be pursued by Attorney General in Superior Court under §1365(5) | §1365(1) applies when hazardous substances "are or were" located and when a site "may create" danger; Commissioner may issue orders subject to de novo review; AG can separately sue | Court held Commissioner had authority under §1365(1); provisions read harmoniously so §1365(5) does not preclude orders by Commissioner |
| Requirement to promulgate separate Board procedural rules under APA §8051 | Board was required to adopt formal rules of practice for UHSSL adjudications; failure voids proceedings | APA and UHSSL supply procedural framework; Board s case-specific procedural orders are permissible ad hoc procedures | Court held no error: existing statutory/APA procedures governed and ad hoc procedural orders were permissible |
| Right to cross-examine Board consultants | Consultants acted as expert witnesses/advisors whose opinions affected the record and should be cross-examinable | Consultants served in advisory capacity summarizing admitted evidence; not witnesses, so not subject to cross-examination | Court held consultants were advisory (not testimony); no right to cross-examine and no plain error affecting substantial rights |
| Admission of evidence of political bias (Governor s role) | Evidence of political pressure motivating the Commissioner s remedy selection was relevant to invalidate the order | Board conducts de novo review of technical/scientific basis; subjective motives behind the Commissioner s selection are irrelevant to the scientific justification; parties may probe witness credibility on bias | Court held Board did not abuse discretion excluding evidence of political motivation; relevance limited because Board evaluated technical merits de novo |
Key Cases Cited
- New England Whitewater Ctr., Inc. v. Dep’t of Inland Fisheries & Wildlife, 550 A.2d 56 (Me. 1988) (agency adoption of a binding scoring system without APA rulemaking is invalid)
- Town of Wiscasset v. Bd. of Envtl. Prot., 471 A.2d 1045 (Me. 1984) (deference to ad hoc agency procedures in absence of controlling rule)
- Reilly v. United States, 863 F.2d 149 (1st Cir. 1988) (advisors who do not supply evidentiary sources are not subject to cross-examination)
- Kelley v. Me. Pub. Emps. Ret. Sys., 967 A.2d 676 (Me. 2009) (agency advisors not participating in an adjudication in an advocate capacity need not be cross-examined)
- York Hosp. v. Dep’t of Human Servs., 869 A.2d 729 (Me. 2005) (agency decision-making process bias claims require particularized proof and differ from mere external political influence)
- Berry v. Me. Pub. Utils. Comm’n, 394 A.2d 790 (Me. 1978) (agencies must admit relevant and probative evidence; excluding such evidence can be reversible error)