# FPL Energy Maine Hydro v. State of Maine, Bd. of Envtl. Protection

> Superior Court of Maine · February 9, 2009

URL: https://www.frixlaw.com/law-library/cases/10809460

## Case

- **Court:** Superior Court of Maine
- **Decided:** February 9, 2009
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Joseph M. Jabar
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809460

## How later opinions describe it (automated extraction)

- discussing the "more extreme case[s] of procedural irregularity"
- recognizing the "general rule forbidding inquiry into the mental processes of an administrative decisionmaker," but acknowledging an exception where a proper showing of bad faith or bias is made

## Opinion text

STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
D~=~Je~?',~!~IO~15,;1
KENNEBEC, ss.

FPL ENERGY MAINE HYDRO, LLC,

Petitioner

v. DECISION AND ORDER

STATE OF MAINE, BOARD OF
ENVIRONMENTAL PROTECTION,

Respondent

Before the court is petitioner's M.R. Civ. P. 80C(f) motion to modify the contents

of the agency-designated record, or in the alternative, a motion pursuant to M.R. Civ. P.

80C(d) to correct or modify the record. Additionally, petitioner moves the court for

leave to present additional evidence pursuant to M.R. Civ. P. 80C(e). The respondent,

Maine Board of Environmental Protection (BEP), and intervenors Verso Paper Corp.

(Verso)! and Rumford Paper Company (RPC) oppose petitioner's motion. For the

following reasons, the petitioner's motion is granted in part and denied in part.

FACTS

Petitioner filed an M.R. Civ. P. 80C petition on 3/7/08, seeking review of a

2/7/08 BEP order granting, with conditions, petitioner's Water Quality Certification

(WQC) for the continued operation of the Gulf Island-Deer Rips Hydro Project (Project).

Petitioner's Project consists of darns, impoundments, and other facilities located on the

Androscoggin River (the River). The instant motion raises the narrow issue of whether

specific documents should be added to the administrative record for consideration on

I Verso does not object to allowing the petitioner to supplement the record with the pre-decisional
documents. (Verso Br. at 3 n. 2.)
2

appeal. Although it is premature to delve into the merits of the 80C petition at this

juncture, some discussion is necessary to understand the context of the proffered

evidence to determine whether it should be added to the record.

The BEP's order granting the WQC for petitioner's Project includes imposing a

variety of conditions to assure its compliance with state water quality standards. See,

~ 33 U.s.c. § 1341; S.D. Warren v. Bd. of Envtl. Prot., 2005 ME 27, <JI 20,868 A.2d 210,

217, aff'd, 547 U.s. 370 (2006). One of those conditions was to require the direct

injection of oxygen into the River so as to achieve the minimum oxygen levels

established by law. 2 To determine how much oxygen must be injected into the River to

attain governing standards, the Department of Environmental Protection (DEP) staff

conducted water quality modeling designed to identify the causes of oxygen depletion.

Although there appears to be no dispute that petitioner's Project contributes to the low

oxygen levels, the main issue before the BEP was how to apportion responsibility for

this problem. Petitioner takes issue with modeling done by the DEP, which the BEP, at

least in part, relied upon to make a determination of petitioner's responsibility for the

low oxygen levels.

On 5/6/08, the BEP filed the record on appeal pursuant to M.R. Civ. P. 80C(f).

Petitioner seeks to supplement the record with three types of evidence: 1) 10 documents

that pre-date the BEP's decision under review, (see Pet'r Exs. 2(A)-2G)); 2) 3 documents

that post-date the BEP's decision, (see Pet'r Exs. 3(A)-3(C)); and 3) by conducting

depositions of former and current DEP staff, and DEP consultants, HydroAnalysis, Inc.

(See Pet'r Br. at 15-16.)

DISCUSSION

2The BEP also imposed corresponding oxygen injection requirements on Verso and RPC, which operate
mills on the River.
3

I. 10 pre-decisional documents: exhibits 2(A)-2(J)3

Prior to the BEP's 2/7/08 order, the petitioner obtained access to certain

documents pursuant to Maine's Freedom of Access Act (FOAA),4 which, petitioner

contends, reflect the DEP's recognition of problems with its water quality modeling.

Petitioner sought to supplement the record at the agency level to include these

documents, but, by order dated 1/17/08, the BEP denied that request. Pursuant to Rule

80C(f),s petitioner now seeks to include ten of these documents to "establish that the

Department was aware of the serious nature of those errors prior to the issuance of the

Order," but chose not to remedy the errors despite adequate time and funding, "making

the Order's reliance on that model for allocation purposes unconstitutional." (Pet'r Br.

at 6.); see Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914,923 (D.C. Cir. 1998) ("[a]n

agency's use of a model is arbitrary if that model 'bears no rational relationship to the

reality it purports to represent'''). Petitioner contends that, because the BEP relied

heavily on DEP staff, these documents constitute the "record upon which the agency

decision was based," 5 M.R.S. § 11006 (2008), which the BEP should have filed with the

court. Alternatively, petitioner argues that these documents establish "bias," driven

by political pressure "from the highest ranks of the State Administration." (Pet'r Br. at

12.) Thus, petitioner seeks admission of these documents as "additional evidence of

procedural irregularities not adequately revealed in the Record./I M.R. Civ. P. 80C(e); 5

M.R.S. § 11006(1); (Pet'r R. Br. at 5 nA.)

3 In light of an 11/12/08 stipulation with the court, petitioner is not seeking to supplement the record
with exhibit 2(J). Accordingly, petitioner's motion actually seeks to supplement the record with nine pre­
decisional documents. (See Pet'r Exs. 2(A)-(I).)
4 See 1 M.R.S. §§ 401-12 (2008).

5 The party contesting the adequacy of the record is required to provide notice of the claimed defect to the
administrative agency within ten days. York Hosp. v. Dep't of Health and Human Servs.. 2005 ME 41, CJ[ 15,
869 A.2d 729, 734 (explaining requirements of M.R. Civ. P. 80C(f)).
4

The respondent counters that documents contained in exhibits 2(B)-2(I) are

evidence of the agency's deliberative process, which is not properly included in the

record. See Carl L. Cutler Co. v. State Purchasing Agent, 472 A.2d 913, 918 (Me. 1984)

(recognizing the "general rule forbidding inquiry into the mental processes of an

administrative decisionmaker," but acknowledging an exception where a proper

showing of bad faith or bias is made). Respondent further argues that exhibit 2(A), a

2005 Attorney General Report regarding the DEP's alleged violation of the FOAA, is

immaterial. Petitioner maintains that this document is relevant to petitioner's

contention that allocation for the responsibility of injecting oxygen was "a preordained

result engineered by the [DEP] at the behest of Department-political forces to favor the

interests of others at the expense" of petitioner. (Pet'r Offer of Proof at 1.)

Assessing the merits of petitioner's contention that the pre-decisional documents

should have been part of the administrative record requires a review of the contested

documents to determine "whether they were in the nature of documents that should

have been included in the record forwarded by the administrative body." York Hosp.

v. Dep't of Health and Human Servs., 2005 ME 41, «[ 14, 869 A.2d 729, 733; M.R. Civ. P.

80C(f). Upon review, the court finds that these documents should be included in the

record. Although clearly the BEP's order is the agency decision under review, the BEP's

reliance on DEP staff for institutional support, technical services, and factual

information reflect that the BEP's decision is partly based upon the DEP's collective

knowledge. See, ~ 38 M.R.S. § 342(1l-A). Accordingly, the DEP correspondence

contained in exhibits 2(b)-(I) constitute the "record upon which the agency decision is

based." 5 M.R.S. § 11005. While inquiry into the mental impressions of agency
5

decision-makers is prohibited, the petitioner does not offer, and the court will not

consider, these documents for this purpose. 6

Finally, pursuant to Rule 80C(e), the court will accept exhibit 2(a) as evidence of

"procedural irregularities not adequately revealed in the Record." 5 M.R.S. §

11006(l)(A).7 The 16-page report describes alleged FOAA violations by the DEP in

connection with certain negotiations relating to water quality on Gulf Island Pond. (See

Pet'r Ex. 2(a).) Although the respondent argues that the report generally concludes that

the DEP violated the FOAA unknowingly and recommends that no enforcement action

be taken, the court cannot conclude that petitioner's offer of proof is so insufficient as to

preclude petitioner the opportunity to argue the issue. As the BEP denied the

admission of this document at the administrative level, the substance of the report is not

otherwise adequately revealed in the record. Accordingly, because petitioner has

presented sufficient prima facie evidence to trigger section 11006(1)(A), the court will

accept this additional evidence into the administrative record. See Carl L. Cutler Co.,

472 A.2d at 918 (Me. 1984) (discussing required prima facie showing of "alleged

irregularities in procedure" before section 11006(1)(A) triggered).

II. Post-decisional documents (exhibits 3(a)-(c)) and proposed depositions

Pursuant to M.R. Civ. P. 80C(e), petitioner seeks to supplement the administrative

record with post-decisional documents and depositions. (See Pet'r Br. 13-16.) 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).

6 Without deciding, the court further notes that the communications petitioner seeks to introduce are
from OEP staff, who may not be the actual agency "decision-makers." See 38 M.R.S. §§ 341-0(4), 341-B.
7 Section ll006(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."
6

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). Rule 80C(e) "is most appropriately asserted when there is evidence

relevant to bias or prejudice, or, in some instances, an equitable defense or claim that

could not have been addressed to the agency during the administrative proceedings."

York Hosp., 2005 ME 41, <[ 20,869 A.2d at 735

Petitioner, relying on section 11006(1)(B), generally makes arguments relating to

the proffered evidence's "materiality" and that fact that flit could not have been

presented before the agency." See 5 M.R.S. § 11006(1)(B). Section 11006(1)(B), however,

sets forth the two requirements "which must be met before the Superior Court need

consider whether it should remand the case to the [agency]." Smith v. Maine Employment

Sec. Comm'n, 456 A.2d 2, 7 (Me. 1983) (emphasis added). Thus, although the court may

order the agency to take additional evidence, section 11006(1)(B) "does not permit the

Superior Court justice to take additional evidence during the appellate process." Keller,

477 A.2d at 1162 (emphasis supplied). Consequently, to the extent petitioner asks this

court to accept post-decisional evidence and testimony under section 11006(1)(B) in the

first instance, petitioner's motion is denied.

Similarly, the proffered evidence does not merit remanding the case to the BEP to

allow it to consider petitioner's post-decisional documents or granting leave to allow

petitioner to conduct depositions of DEP staff. As an initial matter, using evidence that

did not exist at the time the BEP made its decision to fairly review the BEP's decision

runs completely counter to the purpose of Rule 80C review. See Walter O. Boswell

Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) ("[t]o review more than the

information before the Secretary at the time she made her decision risks our requiring
7

administrators to be prescient"); Hale-Rice v. Maine State Ret. Sys., 1997 ME 64, CJ[ 16,

691 A.2d 1232, 1237 (finding no abuse of discretion where Superior Court denied

plaintiff's motion for additional evidence partly because "the psychological evaluation

was prepared three months after the petition for judicial review was filed"). Such post­

decisional evidence would, accordingly, appear to be immaterial to the issues presented

on review of the BEP's order.

The court notes the particular difficulty in this case, with the seeming inherent

conflict between the on-going nature of the developing science involved in water

quality modeling and traditional 80C review, which requires a judicial assessment of

the agency's decision based upon the data before the agency at the time the decision

was made. Nevertheless, the court does not understand this peculiarity to alter the

standard concept of Rule 80C review. This conclusion is bolstered by 38 M.R.S. § 341­

D(3), which allows the BEP to revisit and modify the terms of any license based upon a

subsequent change in condition or circumstance. Through this provision, the

legislature has provided a mechanism by which the BEP should address evidence that

may suggest the initial permitting decision was flawed. In light of the legislative

scheme, subsequent documents that allegedly establish the extent of errors in water

quality modeling are properly addressed through 38 M.R.S. § 341-D(3), rather than

through remand pursuant to 5 M.R.S. § 11006(l)(B). Accordingly, petitioner's motion to

remand for the BEP to take additional evidence is denied.

Finally, petitioner relies upon section 11006(l)(A) to argue that the post-decisional

documents and proposed depositions establish "irregularities in procedure before the

agency" because "the evidence establishes the extent of the errors in the underlying

model, and therefore, that the [BEP's] reliance on the flawed model, despite knowledge

of its flaws, was arbitrary and capricious." (Pet'r R. Br. at 6.) Although it appears that
8

the court itself may take additional evidence under this section, petitioner's allegations

do not constitute the "irregularities in procedure" contemplated by section 1l006(1)(A).

Procedural irregularity of the type contemplated by section 1l006(1)(A) clearly

encompasses some form of bad faith, bias, improper behavior, or other misconduct.

See, ~ Carl L. Cutler Co., 472 A.2d at 918 (Me. 1984) (discussing required prima facie

showing of "alleged irregularities in procedure" before section 1l006(l)(A) is triggered

in conjunction with explanation that prima facie evidence of bad faith be introduced

prior to abrogating rule forbidding inquiry into mental processes); Frye v. Inhabitants

of Cumberland, 464 A.2d 195, 199 (Me. 1983) (discussing the "more extreme case[s] of

procedural irregularity"). While it is unclear that the phrase is so limited, equating

"irregularities in procedure" with allegedly erroneous findings in an agency decision-

as petitioner's proffered analysis compels-would effectively allow the court to take

any evidence in the first instance, swallowing the general "agency-first" principle

espoused by section 1l006(1)(B). See also Christian Fellowship & Renewal Ctr. v. Town

of Limington, 2006 ME 44, CJ[ 40,896 A.2d 287, 298 ("courts should avoid ruling, on

appeal, on matters committed by law to the decision-making authority of an

administrative agency before the administrative agency has first had an opportunity to

review and decide the facts on the merits of the matter at issue"). Because petitioner

has not presented prima facie evidence of bad faith or other arguable "irregularities in

procedure,"s petitioner's motion is denied.

8Petitioner's allegation, in its Offer of Proof, that post-decisional documents establish that "the allocation
of responsibility for oxygenation was a preordained result engineered by the Department at the behest of
political considerations to favor the interests of others at the expense of FPL," does not meet this
threshold requirement. Unlike exhibit 2(a), as discussed above, the documents themselves, at best,
address the merits of the BEP decision, and indicate no evidence of bad faith or improper behavior. (See
Pefr Exs. 3(A)-3(C).)
9

The entry is:

Petitioner's motion to modify the agency-designated record and present
additional evidence to include documents contained in Exhibit 2 is
GRANTED.

Petitioner's motion to present additional evidence by supplementing the
agency-designated record to include documents contained in Exhibit 3
and for leave to conduct depositions is DENIED.

February ~ 2009

Attorneys for Petitioner
Jack Montgomery, Bar #: 1822
Jeffrey A. Thaler, Bar #: 2062
Asha A. Echeverria, Bar #: 4165
Bernstein Shur
P.O. Box 9729, 100 Middle Street
Portland, ME 04104-5029

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 Intervenor, Verso Paper Corp.
Juliet T. Browne, Bar #: 8261
Scott D. Anderson, Bar #: 8969
Verrill Dana, LLP
One Portland Square
Portland, ME 04112

Attorneys for Intervenor Rumford Paper Company
Virginia E. Davis, Bar #: 1076
Michael Kaplan, Bar #: 3296
Preti Flaherty
One City Center
P.O. Box 9546
Portland, ME 04112-9546
Date Filed -----""3:.L1.L.J7/~0~8'______ _ KENNEBEC Docket No. AP-08-15
County

Action RULE BOC APPEAL
.J JABAR

STATE OF MAINE, BOARD OF ENVIRONMENTAL
FPL ENERGY MAINE HYDRO. LLC VS. PROTECTION
Plaintiff's Attorney Defendant's Attorney
JACK MONTGOMERY, ESQ. JERRY REID, AAG
JEFFREY A. THALER, ESQ 6 STATE HOUSE STATION
ASHA ECHEVERRIA, ESQ AUGUSTA MAINE 04333-0006
100 MIDDLE ST, WEST TOWER -VIRGINIA E DAVIS, ESQ (Rumford Paper Go.)
PORTLAND, ME 04101 MICHAEL KAPLAN, ESQ.
ONE CITY CENTER
P.O. BOX 9546
PORTLAND MAINE 04112-9546
Date of JULIET BROWNE, ESQ & SCOTT ANDERSON (Verso)
Entry PEiER BRANN, ESQ. (Natural Resources Counci:

3/7 /08 Complaint (Petition for Review of Final Agency Action Pursuant to
Rule 80C) (Exhibits 1 - 6 attached) filed.
3/17/08 Joint Stipulation and Order Specifying Future Course of Proceedings, filed.
s/Montgomery, Esq. s/Reid, AAG
Letter entering appearance, filed. a/Reid, AAG
3/24/08 ~otice of Appearance, filed. s/Davis, Esq.
3/27/08 Notice of appearance of Juliet Browne and Scott Anderson for Verso Paper filed
s/Juliet Browne, Esq.

3/27/08 Written Appearance of Natural REsources Council of Maine filed. s/Stitham, Esc

3/31/08 Joint stipulation filed. s/Echeverria, Esq.

4/9/08 JOINT STIPULATION AND ORDER SPECIFYING FUTURE COURSE OF PROCEEDINGS, Jabar, J.
(4/8/08)
Copy mailed to attorneys of record.
5/9/08 Certification of Record, filed. s/Reid, AAG (5/7/08)

6/4/08 Joint Motion to Amend Stipulation and Order Specifying Future Course of
Proceedings, filed. s/Reid, AAG
Proposed Order, filed.

6/11/08 JOINT MOTION, Jabar, J. (6/4/08)
BURSUANT TO JOINT MOTION, IT IS SO ORDERED.
Copies mailed to attys. of record.

6/23/08 Joint Motion to Stay Proceedings, filed. s/Meader, AAG
ORDER TO STAY PROCEEDINGS, Jabar, J. (faxed to Penobscot)
Copies to attys. of record.
10/3/08 Joint Stipulation and Order Specifying Future Course of Proceedings, filed.
s/Montgomery, Esq. s/Reid, AAG
Date of
Entry Docket No.

10/17/08 JOINT STIPULATION, Jaoar, J.
Pursuant to Stipulation, it is so Ordered.
Copies mailed to attys. of record.
10/17/08 Notice Upon Agency Regarding Exclusions from the Record, filed.
s/Montgomery, Esq.
10/27/08 First Amended Notice Upon Agency Regrding Exclusions from the Record,
filed. s/Thaler, Esq.
10/29/08 Petitioner's Motion for Modification of the Contents of the Agency­
Designated record under M.R.CIV.P. 80C(d) or (f), and for Leave
to Present Additional Evidence under M.R.CIV.P. 80C(e), with
Incorporated Memorandum of Law, filed. s/Montgomery, Esq. (attached exhb:Ll."1:~)
11/5/08 Consented to Motion to Exceed Page Limit, filed. s/Echeverria, Esq.
11/12/08 Joint Sipulation and Order Specifying Evidentiary Stipulation &
Additions to the Contents of the Agency-Designated Record, filed.
s/Echeverria, Esq.

11/20/08 Respondent Board of Environmental Protection's Memorandum in Opposition
to Petitioner's Motion to Modify the Record and for Leave to Prsent
Additional Evidence, filed. s/Reid, AAG
Verso Paper Corp. Partial Opposition of the Contents of the Agency­
Designated Record and for Leave to Present Additional Evidence, filed.
s/Anderson, Esq.
Rumford Paper Company's Opposition to Petitioner FPL Energy's Motion for
Modification and for Leave to Present Additional Evidence, filed.
s/Davis, Esq.
Consented to Motion to Extend Deadline to File Reply Memorandum, filed.
s/Montgomery, Esq.
Proposed Order, filed.
12/3/08 ORDER GRANTING MOTIONFOR MODIFICATION OF THE CONTENTS OF THE AGENCY
DESIGNATED RECORD AND FOR LEAVE TO PRESENT ADDITIONAL EVIDENCE, Jabar, J.
(12/1/08)
Copies to attys. of record.
ORDER, Jabar, J.
Consented to Motion to Exceed Page Limit is GRANTED.
Copies mailed to attys. of record.
JOINT STIPULATION AND ORDER SPECIFYING EVIDENTIARY STIPULATIONS, Jabar, J.
(12/1/08)
Pursuant to Stipulation, it is so Ordered.
Copies mailed to attys. of record.
ORDER, Jabar, J. (12/1/08)
GRANTED. IT IS HEREBY ORDERED: That Petitioner FPL Energy Maine Hydro,
LLC's deadline to file a Reply Memorandum to any Oppositions to its
Motion for the Modifications is hereby extended to December 9, 2008.
Copies mailed to attys. of record.

1
Notice of setting fOf, . Jl.~ Dttr
-....­
...
--"

sent to 8aomeys of record,
12/9/08 Petitioner's Reply to Memorandum in Opposition to Petitioner's Motion
to Modify the Record and for Leave to Present Additional Evidence,
filed. s/Echeverria, Esq.
PAGE 3

Date of
Entry FPL Ener of Env:P£8hl!tffibl 'Pi III ~I I lilTi AP08-15

12/10/08 Letter, filed. s/Reid, AAG
12/11/08 Letter, filed. s/Anderson, Esq.
Letter, filed. s/Kaplan, Esq.
1/8/09 Hearing held with Hon. Justice Jabar, presiding. Jack Montgomery, Esq. for
the Petitioner and Jerry Reid, AAG, Stott Anderson, Esq. and Michael
Kaplan, Esq. for the Respondent.
Oral arguments made to the court. Court to take matter under advisement
2/9/09 DECISION AND ORDER, Jabar, J.
Petitioner's motion to modify the agency-designated record and present
additional evidence to include documents contained in Exhibit 2 is
GRANTED.
Petitioner's motion to present additional evidence by supplementing the
agency-designated record to include documents conatined in Exhibit 3
and for leave to conduct depositions is DENIED.
Copies to attys. of record.
Copies to repositories.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809460. Public record. Not legal advice.