Strong Green Energy v. Geneva Wood Fuels

1

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-09-03

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STRONG GREEN ENERGY, LLC,

Petitioner

v. DECISION AND ORDER

GENEVA WOOD FUELS, LLC,

Licensee

Before the court is petitioner's motion, pursuant to 5 M.R.S. § 11006(1) and M.R.

Civ. P. 80(C)(e), to conduct discovery and to take additional evidence. For the following

reasons, the petitioner's motion is denied.

FACTS

Petitioner filed an M.R. Civ. P. 80C petition seeking judicial review of a 12/18/08

Board of Environmental Protection (BEP) decision1 affirming a Department of

Environmental Protection (DEP) order approving the transfer of an air emission license

from Geneva Energy Maine, LLC to Geneva Wood Fuels, LLC (Geneva). The basis for

petitioner's Rule 80C appeal is that the DEP and BEP erred in finding that Geneva had

legally sufficient title, right or interest in the underlying facility to apply for the license

transfer. See Me. Dep't of Envtl. Prot., 06-096 CMR 115 § 6. The instant motion raises

the narrow issue of whether certain evidence should be added to the administrative

record for consideration on petitioner's Rule 80C appeal.

I Petitioner appealed the OEP order to the BEP pursuant to 38 M.R.S. §§ 341-0(4) and 341-0(3)/

respectively. The BEP addressed petitioner's appeals in separate decisions.

2

DISCUSSION

Petitioner has moved, pursuant to 5 M.R.S. § 11006(1), to conduct discovery and

take additional evidence. The general rule under the Maine Administrative Procedures

Act is that "judicial review shall be confined to the record upon which the agency

decision was based." 5 M.R.S § 11006(1); Keller v. Maine Unemployment Ins. Comm'n,

477 A.2d 1159, 1162 (Me. 1984). However, a party seeking judicial review pursuant to

M.R. Civ. P. 80C may file a motion requesting "that the reviewing court take additional

evidence or order the taking of additional evidence before an agency as provided by 5

M.R.S.A. § 11006(1)." M.R. Civ. P. 80C(e).

As an initial matter, however, the petitioner failed to provide a "detailed

statement, in the nature of an offer of proof, of the evidence intended to be taken ...

sufficient to permit the court to make a proper determination as to whether the taking

of additional evidence ... is appropriate." M.R. Civ. P. 80C(e). As best as can be

discerned from petitioner's motion, the petitioner seeks for the court to take additional

evidence of unspecified "documents and testimony" which are "material and relevant

to demonstrating the badges of fraudulent transfer." This offer of proof is simply

insufficient to allow the court to determine whether the taking of additional evidence is

appropriate.

Petitioner has also failed to specify whether it seeks the taking of additional

evidence pursuant to 5 M.R.S. §§ 11006(1)(A) or (B). On either count, however,

petitioner's motion fails.

I. 5 M.R.S. § 11006(l)(B)

3

Section 11006(1)(B) sets forth the two requirements "which must be met before

the Superior Court need consider whether it should remand the case to the [agency]. 2

Smith v. Me. Employment Sec. Comm'n, 456 A.2d 2,7-8 (Me. 1983). The two

requirements are: (1) the evidence is material to issues presented on review; and (2) the

evidence could not have been presented before the agency. Id. Again, although it is

unclear due to the lack of an offer of proof, petitioner appears to seek the introduction

of evidence of an allegedly fraudulent transfer to Geneva, so as to undercut the BEP's

finding that Geneva had legally sufficient "title, right or interest" in the underlying

facility to apply for the air emissions license transfer. It appears from the record,

however, that the petitioner presented evidence before the DEP and the BEP of its

fraudulent transfer claims. Among the evidence admitted and noted in the BEP's

decision were two complaints filed by petitioner against Geneva Energy, LLC and

Geneva Wood Fuels, LLC in Franklin County Superior Court. It is unclear what

additional relevant evidence petitioner seeks to introduce that it did not-and could not

have-presented at the administrative leve1.3

II. 5 M.R.S. § 11006(1)(A)

Section 11006(1)(A) allows a court to take evidence of "irregularities in procedure

before the agency."4 Procedural irregularity of the type contemplated by section

2Although the Court may order the agency to take additional evidence, the statute "does not permit the

Superior Court justice to take additional evidence during the appellate process." Keller. 477 A.2d at 1162

(emphasis supplied).

3 Without addressing the merits of the 80C petition, the court notes that a pending action, such as the

petitioner's claim of "fraudulent transfer," does not necessarily deprive an license applicant, such as

Geneva, of sufficient "title, right or interest." See Southridge Corp. v. Bd. of EnvtL Prot., 655 A.2d 345,

348 (Me. 1995) (unadjudicated claim of adverse possession sufficient to confer applicant administrative

standing); see also Murray v. Town of Lincolnville, 462 A.2d 40, 43 (Me. 1983). Indeed, should it be

determined that petitioner's fraud claims have merit, Geneva's license might later be revoked. Id.

Accordingly, evidence of an alleged fraudulent transfer is a distinct, though arguably relevant, issue from

merits of petitioner's 80C petition.

4 Section 11006(l)(A) provides that "in the case of the failure or refusal of an agency to act or of alleged

irregularities in procedure before the agency which are not adequately revealed in the record, evidence

thereon may be taken and determination made by the reviewing court." 5 M.R.S. § 11006(l)(A).

4

1l006(l)(A) clearly encompasses some form of bad faith, bias, improper behavior, or

other misconduct. See, ~ Carl L. Cutler Co. v. State Purchasing- Ag-ent, 472 A.2d 913,

918 (Me. 1984) (discussing required prima facie showing of "alleged irregularities in

procedure," such as bad faith or improper behavior, before section 1l006(1)(A) is

triggered); Frye v. Inhabitants of Cumberland, 464 A.2d 195, 199 (Me. 1983) (discussing

the "more extreme case[s] of procedural irregularity"). Petitioner alleges nothing that

could be construed as an "irregularity" in procedure before the BEP or DEP. Because

petitioner has not presented prima facie evidence of bad faith or other arguable

"irregularities in procedure," petitioner's motion, to the extent it is premised upon 5

M.R.S. § 1l006(l)(A) is denied. s

The entry is:

Petitioner's motion to conduct discovery and present additional evidence

is DENIED.

July ,1, 2009

5 Petitioner has objected to Geneva's motion for enlargement of time to file appearance, arguing that

Geneva's position paper and appearance mustbe struck from the docket as untimely. Surrounding this

issue are concerns about Geneva as a "necessary party," see Centamore v. Commissioner, Department of

Human Services. 634 A.2d 950, 951-52 (Me. 1993) and the court's authority to enlarge a statutorily

prescribed time period, see Reed v. Halperin, 393 A.2d 160, 162 (Me. 1978). Because counsel for Geneva

was not present for the hearing on petitioner's motion to take additional evidence, the court reserves

consideration of this issue for a later date.

5

Attorneys for Petitioner

Stephean C. Chute, Bar # 6828

P.O. Box 707

South Casco, NIB 04077

Attorneys for Respondent, Maine Board of Environmental Protection

Gerald D. Reid, Asst. Atty. Gen., Bar #: 8014

Office of Attorney General

6 State House Station

Augusta, Maine 04333

Attorneys for Geneva Wood Fuels, LLC

David M. Sanders, Bar # 1471

P.O. Box 271

Livermore Falls, ME 04254

Date Filed 1/22/09 Kennebec Docket No. AP09-03

County

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Plaintiff's Attorney Defendant's Attorney

Stephean Chute, Esq. Gerald D. Reid, AAG

P.O. Box 707 6 State House Station

South Casco, Maine 04077 Augusta, ME 04333-0006

David Sanders, Esq. (Geneva)

Two Pine Avenue

PO Box 271

Livermore Falls, Maine 04254

Date of

Entry

1/22/09 Petition for Review, filed. s/Chute, Esq.

2/18/09 Certification of Record, Index to Record, and Administrative Record,

filed 2/17/09. s/Reid, AAG

2/19/09 NOTICE AND BRIEFING SCHEDULE ISSUED.

Copies mailed to attys. of record.

2/23/09 Motion to Coduct Discovery and Take Additional Evidence, filed. s/Chute, Esq

Service List, filed. s/Chute, Esq.

Proposed Order, filed.

3/3/09 Certificate of Service, filed. s/Chute, Esq.

3/11/09 Objection to Motion for Enlargement, Motion to Strike as Untimely, filed.

s/Chute, Esq.

Certificate of Service, filed.

3/11/09 Geneva Wood Fuels, LLC's Motion for Enlargement of Time to File Appearance

and to Accept Appratance or, in the Alternative, for Order That Filing of

Written Appearance is Unnecessary, filed. s/Sanders, Esq.

Proposed Order, filed.

Written Appearance of Geneva Wood Fuels, LLC, filed. s/Sanders, Esq.

3/12/09 Memorandum in Opposition to Motion to Conduct Discovery and Take Additional

Evidence, filed. s/Reid, AAG

3/16/09 Geneva Wood Fuels, LLC's Memorandum in Response to Petitioner's Motion to

Conduct Discovery and Take additional Evidence, filed. s/Sanders, Esq.

3/18/09 Hotion to Strike Objection, filed. s/Chute, Esq.

Proposed Order, filed.

Service List, filed.

Objection to Motion for Sanctions, filed. s/Chute, Esq.

Service List, filed.

Reply, filed. s/Chute, Esq.

Service List, filed.

Date of

Entry Docket No.

3/19/09 Geneva Wood Fuels, LLC's Reply to Appellant's Objection to Motion for

Enlargement/Motion to Strike as Untimely, filed. s/Sanders, Esq.

3/25/09 Geneva Wood Fuels, LLC's Response to Strong Green Energy, LLC's

Motion to Stike Objection, filed. s/Sanders, Esq.

3/26/09 Respondent Board of Environmental Protection's Memorandum in Support

of Geneva Wood Fuels' Motion for Enlargment of Time to File an

Appearance and in Opposition to Strong Green Energy's Motion to Strike,

filed. s/Reid, Esq.

4/2/09 Reply to Memorandum and Motion to Strike, filed. s/Chute, Esq.

Service List, filed. s/Chute, Esq.

Notice of setttng tor I-] I q I() 1

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sent to attorneys of record

7/9/09 H~aring h~ld with Hon. Justic~ Jos~ph Jabar, pr~siding.

St~ph~an Chut~, Esq. for th~ P~tition~r and G~rald R~id, AAG for th~

R~spond~nt.

Oral argum~nts mad~ to th~ court. Court to tak~ matt~r und~r advis~m~nt.

7/17/09 DECISION AND ORDER, Jabar, J.

P~tition~r's motion to conduct discov~ry and pr~s~nt additional

~vid~nc~ is DENIED.

Copi~s to attys. of r~cord

Copi~s to r~positori~s