Opinion

United States Pub. Interest Research Group v. Bd. of Envtl. Prot.

Court: Superior Court of Maine
Filed: Aug 25, 2004
Status: Unpublished
On the bench: Donald H. Marden
Cited by: 0 cases
Authority: More cited than 34.1%

“When an agency utilizes its expertise in setting policy, as long as it does not contravene its statutory authority, we defer to its policy determinations.”

How later courts described this case

“When an agency utilizes its expertise in setting policy, as long as it does not contravene its statutory authority, we defer to its policy determinations.”
noting that the Court recognizes no distinction between the clearly erroneous and substantial evidence in the record standards of review for factual determinations made by administrative agencies
“[t]here is no hint that Congress intended to grant EPA 11 authority to erect additional hurdles to the permitting process beyond those expressly noted in [the statute]”

Written by the judges who cited it.

The opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. . DOCKET NO. AP-03-43

UNITED STATES PUBLIC INTEREST

RESEARCH GROUP, et al.,

Petitioners

Vv. DECISION AND ORDER

THE BOARD OF ENVIRONMENTAL wage Ph ie

PROTECTION, ke

Respondent SEE LS om,

This matter is before the court on petition pursuant to M.R. Civ. P. 80C and

~ MLS.A.§ 11001 et seq. Petitioners United States Public Interest I asearch Group (UE.

PIRG), the Sierra Club, The Conservation Law Foundation, Inc. (CLF) and two of its

' members, Charles Fitzgerald, and Stephen Crawford filed a petition for review of final

agency action. Atlantic Salmon of Maine was granted intervention as a party-

respondent and Stolt Sea Farm, International AquaFoods, USA, Inc., and D.E. Salmon

Inc., filed their written appearance.

Dated June 19, 2003, the Maine Board of Environmental Protection (BEP)

approved a Maine Pollutant Discharge Elimination System Permit and Waste Discharge

License approving the issuance of a general permit for certain Atlantic Salmon

Aquaculture Facility’ in Class SB or SC Waters of the State located east of Naskeag Point

in Brooklin, except those waters in the area North of a line from Schoodic Point in

Winter Harbor to Baker Island in Cranberry Island, then West to Naskeag Point in

Brooklin, subject to conditions and all applicable standards and regulations.

* This permit is not issued to a particular applicant but to those practicing this type of fish farming

Petitioners seek review of the permit issued pursuant to the Federal Clean Water

Act, 33 U.S.C. § 1251 et seg., by the BEP. Asserting that salmon farms discharge

numerous pollutants including chemical pesticides, antibiotics, tons of uneaten food

and fish wastes, dyes and the fish themselves’ into navigable waters, petitioners

challenge the procedure and substantial evidence supporting issuance of a general

permit.

For some years the interested parties have owned and operated salmon farms in

the waters of the State of Maine pursuant to Maine Department of Marine Resources

(DMR) aquaculture leases. Initially told by the United States Environmental Protection

Agency (EPA) that they were not required to obtain a permit under the National

Pollutant Discharge-Elimination Systern (NPDES), in 1989 and 1990 they were then iold -

that such permits were required and to submit an application to the EPA. The

applications were appropriately filed but the salmon farmers never received any

permits nor did they receive any response from the EPA regarding any of their

applications. During those years, the EPA was the only NPDES permitting agency.

However, in January of 2001, the EPA delegated to the State of Maine the authority to

issue permits under the NPDES, memorialized by a memorandum of agreement

between the Maine Department of Environmental Protection (DEP) and the EPA dated

January 12, 2001.

Beginning in September of 2002, the BEP, at the behest of the DEP, assumed

jurisdiction over the issuance of a general finfish aquaculture permit. Beginning in

December of 2002 with prehearing conferences, and continuing through public

meetings held by BEP in Bangor and Machias and elsewhere, 1,400 pages of testimony,

* The farm bred salmon, often European strains not native to Maine waters, are themselves considered, in a sense, 2

pollutant in this case.

additional exhibits, the application and agency memoranda created an administrative

record approaching 4,000 pages. The permit itself (MEG130000), with appendixes is 110

pages long.

In petitioners’ reply brief, they included a “declaration” by Joshua R. Kratka

referring to an attached list of additives fed to farmed salmon and chemicals used in the

sea pen operations. Upon motion by the respondent, the court has stricken the

“declaration” as an improper attempt to expand the record for review by the court.

When the decision of an administrative agency is appealed pursuant to M_R. Civ.

P. 80C, this Court reviews the agency’s decision directly for abuse of discretion, errors

of law, or findings not supported by the evidence. Centamore v. Dep’t of Human Services,

664 A.2d-369, 379 (Me. 1995)- “An adgninistrative-decision will be sustained if, on the

basis of the entire record before it, the agency could have fairly and reasonably found

the facts as it did.” Seider v. Board of Exam’r of Psychologists, 2000 ME 206 § 9, 762 A.2d

551, 555 (Me. 2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, 6, 703

A.2d 1258, 1261 (Me. 1997)).

In reviewing the decisions of an administrative agency, the Court should “not

attempt to second-guess the agency on matters falling within its realm of expertise” and

the Court’s review is limited to “determining whether the agency’s conclusions are

unreasonable, unjust or unlawful in light of the record.” Imagineering v. Superintendent

of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on appeal is not whether the Court

would have reached the same conclusion as the agency, but whether the record contains

competent and substantial evidence that supports the result reached by the agency.

CWCO, Inc. v. Superintendent of Ins., 703 A.2d 1258, 1261. “Inconsistent evidence will not

render an agency decision unsupported.” Seider, 762 A.2d 551 (citations omitted). The

burden of proof rests with the party seeking to overturn the agency’s decision, and that

party must prove that no competent evidence supports the Board’s decision. Id.

Factual determinations must be sustained unless shown to be clearly erroneous.

Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between

the clearly erroneous and substantial evidence in the record standards of review for

factual determinations made by administrative agencies). “A party seeking review of

an agency’s findings must prove they are unsupported by any competent evidence.”

Maine Bankers Ass’n v. Bureau, 684 A.2d 1304, 1306 (Me. 1996) (emphasis added).

“When the dispute involves an agency’s interpretation of a statute administered

by it, the agency’s interpretation, although not conclusive on the Court, is accorded

" great deference and will be upheld unless the statute-plainly compels-a-contrary-result.’”...

Maine Bankers Ass'n, 684 A.2d at 1306 (citing Centamore v. Department of Human Services,

664 A.2d 369, 370 (Me. 1995).

Petitioners advance four principal arguments in favor of their petition seeking

reversal and remand or modification of the June 19, 2003 BEP decision to issue a general

permit for Atlantic Salmon Aquaculture.

1. The BEP decision to issue a general permit is unsupported by substantial

evidence and constitutes an error of law.

2. The BEP decision allowing “mixing zones” for sediment beneath salmon

farms is in excess of statutory authority.

3. The permit conditions are less protective of Wild Salmon than those

required by federal wildlife agencies and therefore violate state law.

4. The BEP ruling that DEP would serve as both “applicant” and BEP staff

during the hearings created a biased process and violate BEP regulations.

Petitioners assert that Maine law authorizes issuance of general permits instead

of individual permits for pollution sources that have the same type of discharge, but

only if that discharge involves “a relatively low risk for significant environmental

impact.” Code Me. R. 06-096-529 (Summary). Petitioners aver that BEP did not find

that salmon farm discharges pose a low risk for environmental impact. Specifically,

petitioners note that BEP acknowledged the pollution potential of the fish themselves as

a genetic pollutant putting Wild Salmon at further risk of extinction through escape and

interbreeding. See Administrative Record at page 92 { (“To protect wild Atlantic

Salmon ... the genetic composition of commercially raised fish is a factor that must be

considered . . . to the extent different genetic composition between commercial and wild

fish may affect-restoration efforts, the risk frem- genetically..different cemmercial fish.

may be substantial.”).

Petitioners argue that BEP has sidestepped the prohibition on issuance of general

permits where there is a heightened risk to the environment by considering the risk of

the activity (salmon farming) as regulated, “not as it may have performed in the past.”

Petitioners argue that BEP’s interpretation of the regulation permitting it to consider the

risk posed by an activity or industry “as regulated” is absolutely counter to the intent of

the regulation’s goal of assessing risk, as it exists before issuing a permit. Citing Code

Me. R. 06-096-529 § 2(b)(3)(i)(G) (whether “[t}he discharge(s) is a significant contributor

of pollutants.”) and Id. at § 3(e)(3) (“A discharge covered by a General Permit may not

.. contain any pollutant, including toxic substances, in quantities or concentrations

which may cause or contribute to any adverse impact on the receiving water. ..”).

Respondent argues that BEP as the agency selected by the legislature to carry out

enforcement of the State’s water quality laws is expected to have the expertise for this

task, Respondent assets “hat courts must defer to an agency’s expertise in setting

policy. Citing Conservation Law Foundation, et al. v. DEP, 2003 ME 62, 931, 823 A.2d 551,

561 (Me. 2003) (“When an agency utilizes its expertise in setting policy, as long as it

does not contravene its statutory authority, we defer to its policy determinations.”).

Intervenor Atlantic Salmon of Maine, LLC, (ASM) finds support for the BEP’s

actions in the relevant regulation:

(a) Coverage. The Department may issue a general permit in

accordance with the following:

Code Me. R. 06-096-529 § 2(a)

(A) Involve the same or substantially similar types of operations;

(B) Discharge the same types of wastes;

(C} ~ Requirethe same effluent limitations or operating conditions; ~ — .

(D) Require the same or similar monitoring; and

(E) In the opinion of the Department (emphasis supplied), are more

appropriately controlled under a general permit than under individual

permits.

Id. at § 2(a)(2)(A-E).

Obviously, determination of the issue revolves around a finding of “a relatively

low risk for significant environmental impact.” Certainly, this term is not a matter of

lay interpretation but requires the expertise expected by the legislature and the courts to

be prevalent in the DEP. Secondly, the language in a summary of a regulation is

defined by the details of the regulation. In this case, the regulations spell out the five

criteria authorizing the general permit. Included in that criteria is the legislature’s

authority to the Department to subjectively determine the most appropriate manner for

controlling the source point discharge. Since it is not an error of law for the DEP to

-onclude,.as a matter of fact-that the industry in question involves a relatively low risk

for significant environmental impact, the examination must be to determine whether

there is substantial evidence to support the conclusion.

Substantial evidence has been defined as “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Application of a substantial

evidence standard of review requires the reviewing court to “search the entire record . .

. to determine whether on the basis of all the testimony and exhibits before the agency it

could fairly and reasonably find the facts as it did.” The fact that it is possible to draw

“two inconsistent conclusions from the evidence does not prevent an administrative

agency’s finding from being supported by substantial evidence.” In the Matter of Maine

Clean Fuels, Inc., 310 A.2d 736 (Me. 1973). The evidence in this matter before the BEP is

-~substantial and, to a targe-extent, highly -technical.~ Interpretation-of that technical .

information is a function of the BEP.

Further, any aquaculture facility seeking to comply with the Clean Water Act

under the general permit must file a notice of intent with the DEP. Both the DEP and

the EPA have the authority to deny a facility proceeding under the general permit.

Regarding the argument that the BEP exceeded its authority when it considered the

environmental impact after regulation rather than before, the rationale flies in the face

of the statute and the regulation. Title 38 M.R.S.A. § 414-A mandates the DEP to issue a

license for the discharge of a pollutant only if it finds that certain conditions exist,

including, the limitations imposed by pollution abatement. Certainly, those conditions

would become part of any permit and part of the consideration for approval. Secondly,

the limitations on sources described by regulation pursuant to statute require findings,

among other things, that the sources require the same effluent limitations, operating

conditions or the same or similar monitoring. Obviously, these are conditions of a

permit.orlicense and would he post-reeilation. |

Pursuant to statute, the BEP may delineate “mixing zones” in waste discharge

licenses.” 38 M.R.S.A. § 451. “The purpose of a mixing zone is to allow a reasonable

opportunity for dilution, diffusion or mixture of pollutants with the receiving waters

before the receiving waters below or surrounding a discharge will be tested for

classification violations.” Id. The permit at issue designated two mixing zones - a

“Water Column Mixing Zone” and a “Sediment Mixing Zone.” It is the creation of the

sediment zone that petitioners assert is in excess of BEP's authority.

Briefly, the dilution purpose of a mixing zone, assert petitioners, cannot be

served when the matter to be mixed is sediment (primarily fish feces and uneaten food)

"because seditienit doés not dilute or diffuse ory in essérive, mix ~- it just settles out and*

piles up at the bottom. Allowing creation of these fish middens is beyond the authority

granted by the statute according to petitioners.

Respondent disagrees, asserting that the BEP is given broad authority to

interpret water quality standards including its authority to create mixing zones.

Respondent argues that the BEP has construed section 451 to include the bottom of the

sea floor as part of the receiving waters in the mixing zone.

Petitioners argue that the mixing zone concept is an exception to the authority

given to BEP in the statute. Citing a 1979 law Court ruling, Wescott v. Allstate Ins., 397

A.2d 156, 169 (Me. 1979) petitioners urge the canon of construction that the expression

of one thing is the exclusion of another in consideration of section 451. (“The maxim-

expressio unius est exclusio alterius -- is well recognized in Maine as in other states. It is a

handy tool to be used at times in ascertaining the intention of the lawmaking body.”).

These zones enbedy the ada ge frat the solvtions to pollution is dilution...

Id. Petitioners close by maintaining that “[nJothing in the plain language of 38 M.R.S.A.

§ 451 anticipates the creation of waste piles on the sea floor.”

Title 38 M.R.S.A. § 451 authorizes the Department to establish a mixing zone for

any discharge. A specific definition of the mixing zone is not included but there are

standards relating to its purpose, extent and limitations.

Whether the BEP has exceeded its statutory authority is an issue of statutory

interpretation. When a statute or statutory scheme is unambiguous, this court must

ascertain the intent of the legislature from the plain language. When there is ambiguity,

the court will defer to the interpretation of a statutory scheme (emphasis supplied) by

the agency charged with its implementation as long as the agency’s construction is

“reasormble.- A particular statute isnot reviewed-in isolation but in.the.cantext of the

statutory and regulatory scheme. If the legislature’s intent is not expressed

unambiguously and the interpretation of the statutory scheme involves issues that are

within the scope of the agency’s expertise, the agency’s interpretation must be given

special deference. Conservation Law Foundation, Inc., et al. v. DEP, 823 A.2d 551 (2003).

Title 38 M.RS.A. § 46(4)(F)(1) establishes the anti-degradation policy of the state

to be enforced by the DEP and it mandates that the DEP must take into consideration:

(c). Habitat, including significant wetlands, within a water body

supporting existing populations of wildlife, aquatic, estuarine or marine

life, or plant life that is maintained in the water body.

Title 38 M.R.S.A. § 465-B requires classification of waters that takes into account not

only fishing but harvesting of shellfish and free flowing and natural habitat. Therefore,

a sediment mixing zone is consistent with the statutory scheme.

The establishment of the sediment-mixing zone is consistent with federal

guidance as evidenced by the concurrence of the EPA with the initial use of a 30-meter

-_ .sediment-mixing.zone in.the present case. Tn addition, the court notes the substantial

monitoring and testing requirements provided as conditions of the permit and with

highly specific standards for compliance.

Petitioners, citing a January 12, 2001 biological opinion written by the U.S. Fish

and Wildlife Service and the National Marine Fisheries Service (NMFS), argue that the

general permit’s conditions are less protective than those required by the federal

agencies. Petitioners cite an April 25, 2000 Memorandum of Agreement between DEP

and the federal EPA governing permitting of “concentrated aquatic animal production

facilities” pledging to carry out the permitting program “so as to protect endangered

species (including the segment of the Atlantic Salmon, if listed) in accordance with the

CWA.” Petitioners also cite DEP regulations for the proposition that the State of Maine

- is cominitted to incorporate specific conditiens into salmon farm» ermits-determined by. . -

: r ° J

the federal services to be needed to protect Wild Salmon:

If during the comment period ‘the U.S. Fish and Wildlife Service, the

National Marine Fisheries Service, or any other State or Federal agency

with jurisdiction over fish, wildlife, or public health advises the

Department in writing that the imposition of specified conditions upon

the permit is necessary to avoid substantial impairment of fish, shellfish,

or wildlife resources, the Department shall include the specified

conditions in the permit to the extent they are determined necessary to

carry out the provisions of 40 CFR 122.49 and of the CWA.

Code Me. R. 06—096-523 § 10(b).

Respondent answers petitioners’ assertions regarding the Memorandum of

Agreement cited above, by pointing out that neither U.S. Fish and Wildlife nor NMFS

was a party to the agreement between Maine DEP and the federal EPA. Respondent

points out that while EPA retains oversight authority when it delegates permit issuance

authority under the CWA, it does not have authority to add or impose conditions that

are not in the Clean Water Act. Citing American Forest and Paper Association v. USEPA,

137 F.3d 291, 298 (5" Cir. 1998) (“[t]here is no hint that Congress intended to grant EPA

authority to erect additional hurdles to the permitting process beyond those expressly

noted in [the statute]”).

The terms of the permit are clear that suggestions made to the BEP for protection

of the native wild Atlantic Salmon are extensive and consistent with the requirements of

the CWA. It is clear that to a large extent, the issue is not finally concluded. The EPA

has approved the provisions of the permit as they exist but those conditions make it

clear that there is a monitoring and continuing evaluation process to determine whether

the conditions in compliance with the CWA protect the native stock. The permit

specifically provides that the DEP, after public notice and opportunity for hearing, may

modify the general permit to consider new information regarding the protection of

“Atlantic Salmorror relevant corditions thatmay be imposed by-the U-S. Army -Coxps of

Engineers. Annual reporting requirements are imposed. Effective July 31, 2004, all

Atlantic Salmon placed in that pen must be of North American origin. Non-North

American Atlantic Salmon must be removed from that pen prior to September 15, 2006.

Both of these requirements call for confirmation with the DEP. There are specific

requirements for a salmon farm to receive approval from the DEP if they are unable to

meet the previous requirements in what is called an Alternate Compliance Plan.

Of course, a major issue is the implications of the Endangered Species Act. Title

16 U.S.C. Must protection of endangered species be a specific and enforceable provision

of the general permit? The EPA has no authority to enforce the Endangered Species

Act (ESA) under the Clean Water Act. American Forest and Paper Association v. USEPA,

137 F.3d at 299. The obligation on the DEP is to meet the objectives of the ESA in its

enforcement of the CWA which provisions are in this general permit.

Petitioners cite the “Fourth Procedural Order” issued December 3, 2002, ruling

that DEP staff would “serve as the applicant and will have the burden of proof,” as

violative of the plain language of the BEP’s Special Regulations for Hearings on

Applications of Significant Public Interest. Code Me. R. 06-096-30. Basically, petitioners

object to the DEP rather than the persons who will be operating the fish farms

depositing the waste in the ocean, serving as the applicant while at the same time

continuing to serve as staff to the BEP. In these dual roles, petitioners point out that

DEP “wrote the draft permit, wrote testimony in support of the permit and wrote the

BEP response to Comments justifying the decision to approve the permit.”

Petitioners cite to various provisions in the CMR that they assert show the clear

interition ‘thar the applicant and the DEP will-be separate entities: -For example,

provisions in the CMR require DEP to provide notice to the applicant, id. at § 3(A)(1),

require applicant to disclose the nature and amount of discharge and the DEP must

prepare an analysis, id. at § 7(A)(2) and applicants and DEP staff are, according to

petitioners “assigned separate roles in providing testimony and cross-examination of

witnesses. Citing § 11.

Petitioners make the argument that this dual role puts DEP in a position of

conflicted interest. Petitioners assert that this dual role for DEP caused petitioners

actual injury or at the minimum, substantial prejudice. Citing Town of Jay v.

Androscoggin Energy, LLC, 2003 ME 64, 882 A.2d 1114, 1117 (Me. 2003).

In Town of Jay, challenging the procedure used by BEP in conducting a hearing,

the petitioner, Town of Jay, asserted “that the Board abused its discretion when it

restricted prehearing discovery to a requirement that the parties file their expert

* While it is clear in section 11 that DEP and applicants are to question and cross separately and in a

certain order, pothesis dhe veqdiation siesks Co theiv role direc tly

witnesses’ testimony in writing prior to the hearing.” Id. at 1 8.. The Court stated that

“[djue process at the agency level does not require full trial-like procedures.” Citing

Fichter v. Bd. of Envtl. Prot., 604 A.2d 433, 437-38 (Me. 1992). Further the Court held:

Moreover, "relaxation or modification of procedural rules by an

administrative agency does not constitute reversible error absent a

showing of injury or substantial prejudice." In re Maine Clean Fuels, Inc.,

310 A.2d 736, 744 (Me. 1973) (quoting Sun Oil Co. v. Fed. Power Comm'n,

256 F.2d 233, 239 (5th Cir. 1958), cert. denied, 358 U.S. 872, 3 L. Ed. 2d 103,

79 S. Ct. 111 (1958)). The Town has neither demonstrated any injury from

the procedure used, nor shown that it has been substantially prejudiced

by the Board's procedure. We find no abuse of discretion in the prehearing

procedure employed by the Board.

Town of Jay, 2003, ME 64, J 9, 882 A.2d at 1117. Petitioners assert that they have met the

standard of showing “injury or substantial prejudice.”

- - ~ Petitioners atso aver that the-DEt’’s role as applicant spared the saiumon farms,

who petitioners call “the true applicants,” from carrying the burden of proving that

they should be allowed to discharge the pollutants at issue into coastal waters.

Respondent answers petitioners’ arguments by explaining that in a “general permit”

situation there is no applicant in the traditional sense. The BEP therefore had to adjust

the hearing process accordingly.

Respondent cites to the Town of Jay standard for showing abuse of discretion by

the Board and asserts that petitioners have not shown “injury or substantial prejudice”

and the procedure used did not result in a biased hearing process. Respondent quotes

the In re Maine Clean Fuels decision for the proposition that "relaxation or modification

of procedural rules by an administrative agency does not constitute reversible error

absent a showing of injury or substantial prejudice.” In re Maine Clean Fuels, Inc., 310

A.2d at 744 (quoting Sun Oil Co. v. Fed. Power Comm'n, 256 F.2d 233, 239 (5th Cir. 1958).

Respondent notes that the BEP subjected the full draft general permit to an adjudicatory

proceeding and argues that the BEP provided petitioners with more due process than

was required, resulting in a fair unbiased process.

It is not uncommon for participants in the regulatory process in state government

to question the role of staff in the regulatory agency in various proceedings. In the

Public Utilities Commission, certain staff is designated as an advocate while others are

assistants to the commissioners rendering decisions. In the Insurance Bureau, certain

staff is designated as advocates while others are assistants to the commissioner. The

designation of certain staff persons will change on a case-by-case basis. It is the

responsibility of those staff persons to conduct themselves in a manner consistent with

their responsibilities as assigned by the administrative supervisor.

~ The threshold issue for consitieration inthis case; was whether-the procedure was

appropriate to the issues before it. Since the BEP is the rulemaking authority of the

DEP, it was most appropriate for the DEP to request the BEP to consider the question

and, if found to be appropriate, to conduct the proceedings for the issuance of the

permit. Since the Department had the responsibility for enforcement of the permit, it

was most appropriate for it to be an advocate for the issuance of a general perm) In

this respect, the general permit is not unlike rulemaking and certainly not tie the

Department's Rule 13, the so-called permit-by-rule proceeding. In examining the entire

record, the court can detect no undue prejudice, lack of due process or undue injuries

suffered by any party to the proceeding. Indeed, given the significant history of

federal-state regulatory exercise, in keeping with its highly technical expertise, the court

is satisfied that the BEP has met the requirements under the law.