Mallinckrodt US LLC v. Department of Environmental Protection

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 52
Docket: BCD-13-121
Argued: February 11, 2014
Decided: April 3, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.
MALLINCKRODT US LLC et al.
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION
MEAD, J.
[¶1] Mallinckrodt US LLC and United States Surgical Corporation 1
(collectively, “Mallinckrodt”) appeal from a judgment entered in the Business and
Consumer Docket (Nivison, J.) affirming a decision of the Board of Environmental
Protection, which modified and affirmed a compliance order issued by the
Commissioner of the Department of Environmental Protection. The
Commissioner’s order required Mallinckrodt to excavate material containing
mercury and other contaminants from five landfills located on a site adjacent to the
Penobscot River in Orrington, and to transfer the material to off-site landfills. The
Board’s decision modified the Commissioner’s order, requiring that Mallinckrodt
excavate only two of the landfills and that it secure and monitor the others. We
affirm the judgment.
1
Mallinckrodt US LLC is a wholly-owned subsidiary of United States Surgical Corporation.
2
I. BACKGROUND
[¶2] Mallinckrodt is the only viable remaining entity to take responsibility
for the site of the former HoltraChem chemical plant on the banks of the Penobscot
River in Orrington.2 One of Mallinckrodt’s corporate predecessors constructed the
plant on a 235-acre site adjacent to the river in 1967. The plant used a
mercury-cell process to produce chlorine and other chemical products used
primarily in Maine’s paper industry. Byproducts of this process, including
thousands of tons of mercury-contaminated brine-sludge and other hazardous
waste, remain stored in five landfills located on the site. Approximately
seventy-seven acres of the site are contaminated by various hazardous substances
including mercury, chloropicrin, carbon tetrachloride, and tetracholoroethene.
Hazardous substances from the site have been discharged both into the Penobscot
River and into the air.
[¶3] The United States Environmental Protection Agency (EPA) first
became involved in managing the site in 1986 when it entered into an
administrative agreement with the site’s owners to investigate conditions at the
site. HoltraChem Manufacturing Company, LLC, acquired the plant in 1994.
Mallinckrodt and HoltraChem cooperated with the EPA and the Maine Department
2
Mallinckrodt does not contest its status as a responsible party in this appeal.
3
of Environmental Protection (the Department) to perform a site investigation in
1995 and 1998.
[¶4] The plant ceased operations in 2000. Since HoltraChem’s dissolution
in 2001, the EPA and the Department have dealt exclusively with Mallinckrodt on
issues related to the site, including the development of possible alternatives for
remediating the site. The Town of Orrington became the owner of the site by
virtue of a tax lien certificate filed in 2002 and subsequent foreclosure in 2003.
[¶5] Mallinckrodt worked cooperatively with the EPA and the Department
for several years. During that time, the Department developed and considered four
options for remediating the site: Option 1 would require moving and consolidating
the contents of one of the landfills into an on-site unit without a liner; Option 2
would require moving and consolidating all five landfills into an on-site unit
without a liner; Option 3 would require moving and consolidating all five landfills
into an on-site unit with a liner; and Option 4, which was referred to as the
“dig-and-haul” remedy, would require excavating all five landfills and shipping
their contents offsite. Option 1 was attractive because it would result in the least
amount of air emissions but would achieve environmental-protection results
comparable to those provided by the other options. Option 1 would take the least
amount of time, result in fewer transportation issues, and, at an estimated cost of
$46 million, be the least expensive of the four options. In contrast, Option 4, the
4
“dig-and-haul” remedy, was the most expensive, with estimated costs exceeding
$200 million. It would also result in the highest level of mercury air emissions.
[¶6] During the summer of 2004, the Maine People’s Alliance3 (MPA),
which had been monitoring the Department’s efforts to ensure that the site was
cleaned up, prepared to launch a media campaign to attack the delay in the cleanup
of the site. It sought Governor John Baldacci’s cooperation in its efforts. In
September 2004, the MPA and the Governor issued a joint press release calling for
the accelerated cleanup of the site.
[¶7] Department staff concluded that Option 3 would be the most
cost-effective and the most protective of public health. They recommended this
option to the Governor, but the Governor strongly preferred the “dig-and-haul”
remedy. In September 2005, the Governor and the Commissioner of the
Department held a press conference announcing that the “dig-and-haul” remedy
would be undertaken.
[¶8] Between 2005 and 2008, Mallinckrodt continued to monitor
groundwater at the site, operate and maintain a wastewater treatment system, and
dismantle and remove infrastructure and mercury-contaminated debris; however, it
did not excavate the landfills. In November 2008, the Commissioner issued an
3
The 2004 press release included in the record describes the MPA as “a statewide, nonprofit,
membership organization committed to citizen democracy and economic, environmental, political and
social justice . . . [c]omprising more than 23,000 members . . . .”
5
order pursuant to Maine’s Uncontrolled Hazardous Substance Sites Law (the
UHSSL), 38 M.R.S. § 1365(1)(B) (2013), requiring Mallinckrodt to excavate all
five landfills and to transfer the contaminated materials offsite in accordance with
the “dig-and-haul” remedy announced in 2005. Mallinckrodt appealed the order to
the Board of Environmental Protection and requested a hearing pursuant to
38 M.R.S. § 1365(4) (2013).4
[¶9] Before the hearing, the Board conducted several conferences with the
parties to address procedural issues. The presiding officer issued a total of thirteen
procedural orders detailing the outcomes of these pretrial conferences and
explaining specific procedures that would be followed.5 The Board issued a
“Procedures Document,” which was developed with input from the parties and set
forth procedural guidelines relating to issues such as the location of the hearing,
serving and filing of papers, and prefiled testimony. Mallinckrodt moved to
dismiss the appeal on the grounds that no procedural rules had been formally
adopted, but the Board’s presiding officer orally denied the motion at a prehearing
conference. The presiding officer also denied Mallinckrodt’s request that it be
4
Mallinckrodt also filed a complaint in the U.S. District Court for the District of Maine challenging
the constitutionality of the Uncontrolled Hazardous Sites Law and seeking to enjoin enforcement of the
Commissioner’s order. Mallinckrodt LLC v. Littell, 616 F. Supp. 2d 128 (D. Me. 2009). Mallinckrodt
requested a stay of the administrative proceedings pending the outcome of the federal case. The U.S.
District Court dismissed Mallinckrodt’s claim on abstention grounds. See id.
5
Mallinckrodt unsuccessfully appealed several of these orders to the full Board.
6
allowed to present evidence of alleged political bias resulting from the Governor’s
involvement in the remedy-selection process. However, she ruled that
Mallinckrodt would be permitted to challenge witnesses’ credibility by
cross-examining them about whether their testimony may have been tainted by
bias.
[¶10] The Board retained an outside consultant to assist in its consideration
of technical evidence because the Commissioner, being a party to the proceeding,
was unable to serve in an advisory capacity. A Department staff member was
tasked with performing a similar consulting function. The consultants’ role was to
summarize technical information presented by the parties, identify inconsistencies
in the data, suggest questions to be asked of witnesses, and ask questions of
witnesses at the direction of the presiding officer. The consultants would not offer
testimony, and the Board ruled that, consequently, they would not be subject to
cross-examination.
[¶11] The Board conducted a de novo evidentiary hearing over nine days in
January and February 2010. In accordance with the Board’s procedural orders,
each party prefiled its witnesses’ direct and rebuttal testimony. Over
Mallinckrodt’s objection, witnesses testified in panels grouped according to the
subject matter of their testimony. During the Board’s deliberations, the outside
consultant provided charts and summaries of evidence that had been admitted
7
during the hearing. Similarly, the Department staff member who had been
designated to act as a consultant offered opinions and provided documents
summarizing and explaining the evidence relating to air emissions.
[¶12] In August 2010, the Board issued an order affirming and partially
modifying the Commissioner’s order. As modified, the order required
Mallinckrodt to excavate and transport materials from two of the landfills, cap the
remaining landfills, develop and implement plans for extracting and testing
groundwater, and continue to monitor conditions at the site. Mallinckrodt
estimates that the cost of complying with the order will be approximately
$130 million.
[¶13] Mallinckrodt appealed, and the case was accepted for transfer to the
Business and Consumer Docket, where Mallinckrodt also asserted an independent
claim pursuant to 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 113-74)
alleging due process violations. The court affirmed the Board’s order and
dismissed Mallinckrodt’s section 1983 claim. Mallinckrodt then filed this appeal.6
6
It is unclear whether Mallinckrodt intends to appeal the dismissal of its section 1983 claim in
addition to the court’s order affirming the Board’s decision. Because Mallinckrodt’s briefs contain no
discussion of the substance of the section 1983 claim, or the court’s reasons for dismissing it, we deem
any arguments on this issue waived. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11, 905 A.2d 290
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” (quotation marks omitted)).
8
II. DISCUSSION
A. The Commissioner’s Authority to Issue a Compliance Order
[¶14] Mallinckrodt argues that the Commissioner lacked statutory authority
to issue a compliance order pursuant to the UHSSL because the plain language of
the relevant provision must be read to authorize the Commissioner to take such
action only in the event of an emergency. Mallinckrodt contends that if the
Department wished to require remediation at the site, the appropriate remedy
would have been for the Attorney General to file an action in Superior Court.
[¶15] Title 38 M.R.S. § 1365(5) (2013) provides that “[t]he Attorney
General may file suit in Superior Court to compel any responsible party to abate,
clean up[,] or mitigate threats or hazards posed or potentially posed by an
uncontrolled site.” Title 38 M.R.S. § 1365(1) (2013) provides, in relevant part:
Upon finding, after investigation, that a location at which
hazardous substances are or were handled or otherwise came to be
located may create a danger to the public health, to the safety of any
person or to the environment, the commissioner may:
A. Designate that location as an uncontrolled hazardous
substance site;
B. Order any responsible party[7] dealing with the hazardous
substances to cease immediately or to prevent that activity and
7
“Responsible party” is defined, in relevant part, as “[a]ny person who owned or operated the
uncontrolled site from the time any hazardous substance arrived there.” 38 M.R.S. § 1362(2)(B) (2013).
“Uncontrolled hazardous substance site,” or “uncontrolled site,” is defined as “an area or location,
whether or not licensed, at which hazardous substances are or were handled or otherwise came to be
located, if it is concluded by the commissioner that the site poses a threat or hazard to the health, safety or
9
to take an action necessary to terminate or mitigate the danger
or likelihood of danger; and
C. Order any person contributing to the danger or likelihood of
danger to cease or prevent that contribution.
[¶16] The responsible party must “immediately” comply with an order
issued pursuant to section 1365. 38 M.R.S. § 1365(4). Within ten working days of
receiving the order, the person to whom the order is directed may apply to the
Board for a hearing; the Board must hold a hearing, make findings of fact, and vote
on a decision to continue, revoke, or modify the order within fifteen working days
after receiving the application.8 Id.
[¶17] When the Business and Consumer Docket sits as an intermediate
appellate court to review an agency decision pursuant to M.R. Civ. P. 80C, we
review the agency’s decision directly for errors of law. Ford Motor Co. v.
Darling’s, 2014 ME 7, ¶ 15, --- A.3d ---; see also Sinclair Builders, Inc. v.
Unemployment Ins. Comm’n, 2013 ME 76, ¶ 9, 73 A.3d 1061. Matters of statutory
interpretation are reviewed de novo by looking “to the plain meaning of the statute,
interpreting its language to avoid absurd, illogical[,] or inconsistent results.”
Sinclair Builders, Inc., 2013 ME 76, ¶ 10, 73 A.3d 1061 (quotation marks
welfare of any person or to the natural environment and that action under this chapter is necessary to
abate, clean up or mitigate that threat or hazard.” 38 M.R.S. § 1362(3) (2013).
8
Due to the complex nature of this case, Mallinckrodt and the Board agreed to waive the Board’s
hearing and decision deadlines.
10
omitted). However, “[w]hen a statute administered by an agency is ambiguous, we
review whether the agency’s interpretation of the statute is reasonable and uphold
its interpretation unless the statute plainly compels a contrary result.” Fuhrmann v.
Staples the Office Superstore East, Inc., 2012 ME 135, ¶ 23, 58 A.3d 1083
(quotation marks omitted).
[¶18] Contrary to Mallinckrodt’s argument, the plain language of
38 M.R.S. § 1365(1) does not compel the conclusion that it applies only in the case
of an emergency. First, although Mallinckrodt asserts that it is not currently
“handling” hazardous substances at the site, the statute explicitly applies to sites at
which hazardous materials “are or were handled or otherwise came to be located.”
38 M.R.S. § 1365(1) (emphasis added). There is no dispute that hazardous
materials have been handled on the site and that they are currently located there.
[¶19] Second, Mallinckrodt’s argument that the Legislature’s use of the
word “danger” indicates only immediate emergencies is undercut by a plain
reading of the entire provision.9 The Commissioner is empowered to make an
order when a location containing hazardous substances “may create a danger.”
Id. (emphasis added). Similarly, it may order a responsible party to take action
“necessary to terminate or mitigate the danger or likelihood of danger.” 38 M.R.S.
§ 1365(1)(B) (emphasis added). This language indicates that the Commissioner
9
There is no statutory definition of “danger.” See 38 M.R.S. § 1362 (2013).
11
may issue an order pursuant to this subsection even if the danger has not yet
materialized.
[¶20] Finally, Mallinckrodt argues that, because the remedy that the
Commissioner ordered was a “cleanup,” the Commissioner was only authorized to
proceed in Superior Court pursuant to 38 M.R.S. § 1365(5). Mallinckrodt
contends that if the Commissioner is permitted to proceed pursuant to 38 M.R.S.
§ 1365(1) in these circumstances, 38 M.R.S. § 1365(5) is rendered surplusage. See
Cent. Me. Power Co. v. Devereux Marine, Inc., 2013 ME 37, ¶ 8, 68 A.3d 1262
(“All words in a statute are to be given meaning, and no words are to be treated as
surplusage if they can be reasonably construed.” (quotation marks omitted)).
[¶21] However, “[w]e also construe the whole statutory scheme of which
the section at issue forms a part so that a harmonious result, presumably the intent
of the Legislature, may be achieved.” Id. (quotation marks omitted). Here, it is
possible to construe these provisions harmoniously. Whereas 38 M.R.S.
§ 1365(1)(B) authorizes the Commissioner to order responsible parties to take
action to terminate or mitigate the danger or likelihood of danger posed by a
hazardous substance site, 38 M.R.S. § 1365(5) permits the Attorney General to file
suit in Superior Court to abate, clean up, or mitigate threats or hazards posed or
potentially posed by an uncontrolled site. A plain reading of these provisions
indicates that the Commissioner does not have the authority to independently file a
12
civil action in Superior Court; only the Attorney General does. We construe these
provisions as authorizing the Commissioner to unilaterally issue orders subject to
de novo review and, separately, permitting the Attorney General to file an action in
Superior Court. 10 Accordingly, we conclude that the Commissioner was
authorized to issue the order.
B. The Administrative Procedure Act
[¶22] Mallinckrodt argues that the Board was required to adopt rules of
practice governing UHSSL hearings and that its failure to do so rendered the
Board’s final order legally ineffectual. The Department argues that Maine’s
Administrative Procedure Act (APA), 5 M.R.S. § 8051 (2013), requires adoption
of new procedural rules only when there is no existing statutory framework to
guide the proceedings, and that the APA itself, read in conjunction with the
UHSSL, provides adequate procedural rules. The Department further argues that,
in any event, Mallinckrodt cannot demonstrate that it was prejudiced by the
Board’s failure to adopt specific rules to govern the proceedings.
[¶23] The APA provides, in relevant part: “[E]ach agency shall adopt rules
of practice governing the conduct of adjudicatory proceedings . . . except to the
10
Additionally, 38 M.R.S. § 1368 (2013), which authorizes the Commissioner to work with the
Governor and the Commissioner of Public Safety to take control of the site and to take any other
necessary action in the event of an emergency, does not suggest that the appropriate procedure in an
emergency is to issue an order pursuant to 38 M.R.S. § 1365(1).
13
extent that such rules are provided by law.” 5 M.R.S. § 8051. A “rule” is defined
as
the whole or any part of every regulation, standard, code, statement of
policy, or other agency guideline or statement of general applicability,
including the amendment, suspension or repeal of any prior rule, that
is or is intended to be judicially enforceable and implements,
interprets[,] or makes specific the law administered by the agency, or
describes the procedures or practices of the agency.
5 M.R.S. § 8002(9)(A) (2013). Excluded from the definition of rule are “[p]olicies
or memoranda concerning only the internal management of an agency” and “[a]ny
form, instruction or explanatory statement of policy that in itself is not judicially
enforceable, and that is intended solely as advice to assist persons in determining,
exercising[,] or complying with their legal rights, duties or privileges.” 5 M.R.S.
§ 8002(9)(B)(1), (9)(B)(4) (2013).
[¶24] The Department’s governing statute declares that all of its hearings
“must be conducted in accordance with the procedural requirements of the Maine
Administrative Procedure Act, Title 5, chapter 375.” 38 M.R.S.
§ 345-A(2) (2013). The APA establishes basic procedural requirements for
administrative hearings, including notice requirements, the requirement that a
hearing be held, exceptions to the rule that hearings must be held, provisions for
public participation, and provisions concerning the type of evidence to be admitted.
14
See 5 M.R.S. §§ 9051-9064 (2013). In addition, some procedural guidelines
specific to UHSSL proceedings are provided in 38 M.R.S. § 1365(4).
[¶25] Mallinckrodt urges us to conclude that this case is comparable to
New England Whitewater Center, Inc. v. Department of Inland Fisheries and
Wildlife, in which we observed that an agency’s “failure . . . to comply with the
rulemaking provisions of the [APA] is a procedural defect that we cannot overlook
even should we conclude there is no showing of prejudice.” 550 A.2d 56, 64
(Me. 1988). In that case, the Department of Inland Fisheries and Wildlife
instituted new regulations limiting the number of passengers that could be
transported on commercial rafting trips in the Kennebec and Penobscot Rivers. Id.
at 57-58. To allocate the number of passengers that each rafting company could
carry, the Department created a new scoring system, but did not inform the
applicants of the scoring criteria. Id. at 58, 63-64. We concluded that the scoring
system met the statutory definition of a rule because it was meant to be judicially
enforceable and that it was invalid because it had not been adopted pursuant to
APA guidelines. Id. at 63-64.
[¶26] “An agency must comply with the APA before it adopts a rule;
otherwise the rule has no legal effect.” Roderick v. State, 2013 ME 34, ¶ 9,
79 A.3d 368; 5 M.R.S. § 8057(1) (2013). Here, however, the Board did not adopt
any new rules. Its governing statute provides that its hearings are to be regulated
15
by the requirements set out in the APA. See 38 M.R.S. § 345-A(2).
Mallinckrodt’s argument that no preexisting rules governed the proceeding
therefore fails. We have observed that, “[i]n the absence of a controlling agency
rule or a contrary requirement of statutory and constitutional law, the [ad hoc]
procedure adopted by an administrative agency in any particular case should
receive the deferential respect of a reviewing court.” Town of Wiscasset v. Bd. of
Envtl. Prot., 471 A.2d 1045, 1048 (Me. 1984). The thirteen procedural orders
issued by the Board over the course of the proceedings were not rules of general
applicability; rather, they provided specific guidance to the parties concerning how
the rules would be applied and how the case would progress. These are the types
of ad hoc procedural decisions we affirmed in Town of Wiscasset,
471 A.2d at 1049. “Such flexibility and adaptability, when exercised fairly, is
essential to an effective administrative response to a complex regulatory task.”
In re Me. Clean Fuels, Inc., 310 A.2d 736, 744 (Me. 1973). Accordingly, the
Board committed no error in conducting the proceedings in accordance with
statutorily provided rules rather than promulgating its own. See 5 M.R.S. § 8051.
C. Cross-Examination of Board Consultants
[¶27] Mallinckrodt contends that the two consultants who assisted the
Board in evaluating technical evidence served in effect as expert witnesses and that
16
the advice they offered should have been subject to cross-examination. Before the
de novo hearing, the Board issued a procedural order explaining:
The consultant will assist Board staff (Executive Analyst) with
summarizing technical information presented by the parties,
identifying data/information gaps and inconsistencies that should be
explored, formulating suggested questions to be asked of witnesses at
the hearing, and asking questions of witnesses at the Presiding
Officer’s discretion. The consultant will not be conducting
independent studies of the site, but rather assisting the Board in its
review of the evidence presented by the parties. The consultant will
not offer testimony and will not be subject to cross-examination.
Documents produced by the consultant will be available to the parties
and included in the record.
[¶28] Pursuant to the APA, “every party shall have the right . . . to make
oral cross-examination of any person present and testifying.” 5 M.R.S. § 9056(2).
The Board is permitted by statute to have “the aid or advice of those members of
his own agency staff, counsel or consultants retained by the agency who have not
participated and will not participate in the adjudicatory proceeding in an advocate
capacity.” 5 M.R.S. § 9055(2)(B) (2013). Such advisors are not subject to
cross-examination. See Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, ¶ 25,
967 A.2d 676.
[¶29] Mallinckrodt characterizes the consultants as expert witnesses. We
note that Mallinckrodt did not object to the consultants’ involvement in the
17
Board’s decision-making.11 Thus, we review only for obvious error affecting
substantial rights. See Town of China v. Althenn, 2013 ME 107, ¶ 12, 82 A.3d 835.
We conclude that the Board committed no error by precluding Mallinckrodt from
cross-examining the consultants because the consultants did not offer testimony.
See Reilly v. United States, 863 F.2d 149, 159 (1st Cir. 1988) (“If . . . the advisor
was not an evidentiary source, there was neither a right to [cross-examine] him . . .
nor a purpose in doing so.”); Thomas v. Me. State Ret. Sys., No. AP-07-27,
2008 WL 4106400 (Me. Super. Apr. 8, 2008) (concluding that a memorandum
“provided in [an] advisory capacity . . . is not . . . testimony.” (quotation marks
omitted)). Although the Board’s consultants spoke on the record, they did so only
during deliberations. The documents they provided to the Board contained
summaries of evidence that had already been admitted, and the opinions they
offered were based on information provided by the parties. Because the
consultants did not serve in an advocate capacity, the Board was entitled to rely on
their advice, 5 M.R.S. § 9055(2)(B), and was not required to permit the parties to
cross-examine them.
11
Counsel for the Town of Orrington engaged in a colloquy with the Presiding Officer concerning the
role of the consultants, observing that having to “sit by and say nothing” as the consultants offered advice
to the Board “create[d] an odd situation.” No party specifically objected to the Board’s use of
consultants, or the Board’s refusal to allow parties to cross-examine the consultants.
18
D. Evidence of Political Bias
[¶30] Finally, Mallinckrodt contends that the Board abused its discretion by
excluding evidence that the Commissioner’s original order was tainted by political
bias. The Board’s fifth procedural order held that “any political pressure exerted in
the Commissioner’s process is not relevant to the Board’s [decision-making]
process,” but provided that “the parties retain the right as part of any
cross-examination to ask questions that relate to the credibility of the witness and
therefore the reliability of the testimony offered by that specific witness for
inclusion in the Board’s record.”
[¶31] Pursuant to the APA, “every party shall have the right to present
evidence and arguments on all issues . . . .” 5 M.R.S. § 9056(2) (2013). “Evidence
shall be admitted if it is the kind of evidence upon which reasonable persons are
accustomed to rely in the conduct of serious affairs,” but “[a]gencies may exclude
irrelevant or unduly repetitious evidence.” 5 M.R.S. § 9057(2) (2013). We review
for an abuse of discretion an administrative agency’s decision to exclude evidence.
Hale-Rice v. Me. State Ret. Sys., 1997 ME 64, ¶ 16, 691 A.2d 1232.
[¶32] In the appeal of the Commissioner’s order, the Commissioner must
“first establish the basis for the order and for naming the person to whom the order
is directed.” 38 M.R.S. § 1365(4). “The burden of going forward then shifts to the
person appealing to demonstrate . . . that the order should be modified or
19
rescinded.” Id. Although it would be reversible error to exclude evidence that is
relevant and highly probative, see Berry v. Me. Pub. Utils. Comm’n,
394 A.2d 790, 794 (Me. 1978), here the Board reasoned that, because it was
conducting a de novo review, evidence relating to the Commissioner’s subjective
motivation for selecting a remedy was irrelevant. The Board concluded that,
pursuant to 38 M.R.S. § 1365(4), its only objective was to determine whether the
Commissioner could meet its burden of establishing that environmental-protection
concerns provided a scientific and technical basis for the order. We accord great
deference to the Board’s interpretation of its enabling statute. See S.D. Warren
Co., 2005 ME 27, ¶ 4, 868 A.2d 210. The Board did not abuse its discretion by
determining that evidence of the Governor’s political motivation for
recommending the “dig-and-haul” remedy was irrelevant to its decision on the
merits of the Commissioner’s order.
[¶33] Additionally, we note that the Board was not entirely dismissive of
Mallinckrodt’s concerns. The Board’s procedural order concerning this issue
specifically provided that Mallinckrodt would retain the right to cross-examine
witnesses about whether bias affected their testimony. This approach was
appropriate given that the Board was assessing only the scientific justification for
the remedy the Commissioner ordered. Notwithstanding Mallinckrodt’s arguments
to the contrary, this case does not present the same concerns that we addressed in
20
York Hospital v. Department of Human Services, 2005 ME 41, 869 A.2d 729. That
case involved an allegation that an agency’s decision-making process was itself
biased. Id. ¶ 12. Mallinckrodt does not assert that political influence was exerted
on the Board; we are therefore not convinced that the Board’s exclusion of
evidence relating to the Commissioner’s possible political bias amounted to an
abuse of discretion.
[¶34] We find that Mallinckrodt’s additional arguments are unpersuasive
and do not merit further discussion.
The entry is:
Judgment affirmed.
On the briefs:
Jeffrey D. Talbert, Esq., Sigmund D. Schutz, Esq., and David
B. Van Slyke, Esq., Preti, Flaherty, Beliveau & Pachios, LLP,
Portland, for appellants Mallinckrodt US LLC and United
States Surgical Corporation
Janet T. Mills, Attorney General, and Peter B. LaFond, Asst.
Atty. Gen., Office of Attorney General, Augusta, for appellee
Department of Environmental Protection
Eric M. Mehnert, Esq. and Cynthia M. Mehnert, Esq., Hawkes
& Mehnert, LLP, Bangor, for appellee Maine People’s Alliance
21
At oral argument:
Jeffrey D. Talbert, Esq., for appellants Mallinckrodt US LLC
and United States Surgical Corporation
Peter LaFond, Asst. Atty. Gen., for appellee Board of
Environmental Protection
Eric M. Mehnert, Esq., for appellee Maine People’s Alliance
Business and Consumer Docket docket number AP-2011-02
FOR CLERK REFERENCE ONLY