Pond View, Inc. v. Maine Bd. of Envtl. Protection

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-07-40

J N\ ,\ - \/r··.,

I I V

'r

~,JI

IJ --' 1// .-,, ' ' ("'-,

, )1

;'

POND VIEW, INC.,

Petitioner

v. DECISION AND ORDER

MAINE BOARD OF ENVIRONMENTAL

PROTECTION,

Respondent

Before the court is petitioner's M.R. Civ. P. 80C petition for judicial review of the

Board of Environmental Protection (BEP)'s decision affirming the decision of the

Department of Environmental Protection (DEP). The DEP decision denied petitioner's

request to extend the time of temporarily out-of-service status for an underground oil

storage facility and required petitioner to abandon the facility by removing the

underground tanks and piping. (R. Ex. 53.) For the following reasons, the decision of

the BEP is affirmed.

FACTS

Petitioner has owned an underground storage tank facility since 1998, consisting

of two gasoline tanks and one diesel tank, which was utilized as a gas station adjunct to

a market. (R. Ex. 1.) On 9/30/04, by "Notification of Temporarily Out-of-Service

Tank," petitioner notified the DEP that the facility would be temporarily out-of-service

for a period not to exceed twelve months and that all product had been removed from

the tank with no more than one inch of residual left. (R. Ex. 33.) On 11 / 8/ 04, the DEP

received an annual inspection report dated 10/25/04 that indicated that tanks I, 2, and

3 were not in use and contained 5 inches, 6 inches, and 9 inches of product, respectively.

2

(R. Ex. 21.) On 12/20/04, the DEP received an update of the initial failing 10/25/04

inspection report. That report, dated 12/16/04, indicated that product had been

pumped out by Clean Harbors. (R. Ex. 22.) However, a subsequent inspection dated

10/5/05 showed that while tanks 1 and 2 contained less than one inch of product, tank

3 still contained 9.5 inches of diesel. (R. Ex. 23.) The 10/5/05 inspection report also

indicated that the fill pipes were not locked, product piping was not capped, and

dispensers were not secured. 1 (R. Ex. 23.)

The DEP issued a "Notice of Violation" (NOV) to petitioner on 7/31/06 for

failing to abandon an underground oil storage facility that had been out-of-service in

excess of twelve months. (R. Ex. 28.) Citing 38 M.R.S. § 566-A(1)2 and 06-096 CMR Ch.

691 § 11(C)3, the NOV required petitioner to abandon the underground tanks by

removing them. 4 (R. Ex. 28.) On 8/9/06, after receiving the NOV, petitioner asked for

an extension of time for out-of-service status. (R. Ex. 29.) The DEP denied petitioner's

initial request by letter dated 10/17/06, and denied petitioner's request for

reconsideration on 12/19/09. (R. Exs. 32, 37.) Petitioner appealed to the BEP, which

affirmed the DEP's decision, by order dated 5/24/07. (R. Ex. 53.)

STANDARD OF REVIEW

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 Servs.,

1 The Clean Harbors invoice, which the BEP accepted from petitioner as a supplemental exhibit, shows

the job description as "pump 2 gas tanks." (R. Ex. 41 (Attach. Supplement 3).)

2 Section 566-A(1) states, in relevant part, "[a]ll underground oil storage facilities and tanks that have

been, or are intended to be, taken out of service for a period of more than 12 months shall be properly

abandoned by the owner or operator of the facility .... All abandoned facilities and tanks shall be

removed, except where removal is not physically possible or practicable ...."

3 Section ll(C)(l) states, "[t]anks, piping or facilities that have been out-of-service for 12 months must be

removed within 60 days unless a written request has been made and has not been acted upon or unless

written permission has been granted by the commissioner under section 11(B)."

4 The NOV did not mention the 9.5 inches of product in the diesel tank.

3

664 A.2d 369, 370 (Me. 1995). "An administrative 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. Bd. of Exam'rs of Psychologists, 2000 ME 206, <JI 9, 762 A.2d

551, 555 (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, <JI 6, 703 A.2d 1258,

1261). The court will "not attempt to second-guess the agency on matters falling within

its realm of expertise" and judicial review is limited to "determining whether the

agency's conclusions are unreasonable, unjust or unlawful in light of the record."

Imagineering, Inc. v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991).

"Inconsistent evidence will not render an agency decision unsupported." Seider, 2000

ME 206, <JI 9, 762 A.2d at 555. 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. See Bischoff v. Bd. of Trs., 661 A.2d 167, 170 (Me. 1995).

When reviewing an agency's interpretation of a statute that is both administered

by the agency and within the agency's expertise, the first inquiry is whether the statute

is ambiguous or unambiguous. Competitive Energy Servs., LLC v. Pub. Utils. Comm'n,

2003 ME 12, <JI 15, 818 A.2d 1039, 1046. If the statute is unambiguous, it is interpreted

according to its plain language. Arsenault v. Sec'y of State, 2006 ME Ill, <JI II, 905 A.2d

285, 288. If, instead, the statute is ambiguous, deference is given to the agency's

interpretation if the interpretation is reasonable. Id.

DISCUSSION

On appeal, petitioner makes essentially six arguments, all of which are

unmeritorious. Each will be addressed, in tum, below.

I. Whether the BEP's order requiring complete removal of petitioner's

underground tanks, on the ground that petitioner's request for an extension of

a temporarily out-of-service period was untimely, was an abuse of discretion

or a violation of petitioner's substantive due process right

4

Petitioner argues that the rules for requesting an extension did not expressly

specify when the request for an extension must be filed. (Pet'r Br. at 15.) The relevant

rule provision, amended March 14, 2004 (and corrected April 28, 2004), in effect at the

time of petitioner's request to the DEP, stated, "[a] tank owner may apply in writing for

approval of the commissioner to allow a facility to remain temporarily out-of-service for

more than 12 consecutive months ...." 06-096 CMR ch. 691 § 11(B)(2). The DEP and

BEP interpreted this rule to require petitioner to submit a request for extension before

the 12-month period ended. Petitioner asserts that this rule is ambiguous, and as a

result, petitioner's 8/9/06 request for an extension, although made two years after the

facility was placed out-of service, technically complied with the rules. (See Pet'r Br. at

15.)

The interpretation of regulations and policies by an agency that promulgated

them is entitled to considerable deference on judicial review. See Trull Nursing Home

v. Dep't of Human Servs., 461 A.2d 490, 496 (Me. 1983); Centro Maine Power V. Pub.

UtiI. Comm'n, 455 A.2d 34, 44 (Me. 1983). Reading section 11(B)(2) in context with the

other provisions in section 11, the scheme is dearly premised upon the requirement that

a facility cannot remain out-of-service for more than 12 months unless the DEP

commissioner provides an extension. See, ~ 06-096 CMR ch. 691 § 11; 38 M.R.S. §

566-A. Allowing a facility owner to wait until the facility is in violation (i.e., out of

service for more than 12 months) to request additional time for temporarily out-of­

service status would run contrary to the regulatory scheme and common sense.

Indeed, an analogy could be made to court rules, which require that requests for

extensions of deadlines be made within the deadlines, except in limited circumstances.

See M.R. Civ. P. 6(b).

5

Petitioner takes issue with an amendment to section 11(B)(2) which became

effective on April 3, 2007. The new language, italicized, provides that "[a] tank owner

may apply in writing for approval of the commissioner to allow a facility to remain

temporarily out-of-service for more than 12 consecutive months, if done so before the

initial 12 months out ofservice expires . ..." 06-096 CMR ch. 691 § 11(B)(2). Petitioner

contends that this proves that the prior rule was unclear, "or else, the Department

would not have set out to clarify it."s Petitioner's argument is unavailing. Even if this

amendment "proves" the rule was previously ambiguous, the BEP's reasonable

interpretation of an ambiguous statute or rule is given deference. To the extent that

section 11(B)(2) was ambiguous prior to the April 3, 2007 amendment, the BEP's

interpretation, as discussed above, was reasonable and entitled to deference. 6

II. Whether the BEP's order requiring complete removal of petitioner's

underground tanks, on the ground that 9.5 inches of product remained in one

of the tanks during the temporarily out-of-service period, was an abuse of

discretion or a violation of petitioner's substantive due process right

Petitioner acknowledges that 9.5 inches of product was left in the diesel tank, in

violation of 06-096 CMR ch. 691 § 11(B)(1). Petitioner argues, however, that because it

otherwise "substantially complied" with the rules for placing its underground storage

facilities temporarily out-of-service it should be deemed to have complied with section

l1(B)(l). (Pet'r Br. at 21.) Petitioner submits that its failure to comply was the result of a

faulty inspection by Certified Tank Inspector Don Bubar, who was hired by petitioner

to ensure compliance with DEP rules. Petitioner also points to the DEP's decision not to

5 The court also disagrees with petitioner to the extent petitioner argues that the rule was

unconstitutionally vague prior to the April 3, 2007 amendment. That clarifying language was added to a

regulation or statute does not conclusively establish the prior language was unconstitutionally vague.

6 Moreover, the April 3, 2007 amendment may "be taken into consideration in dissipating the uncertainty

of [the] foundation statute." Mundy v. Simmons, 424 A.2d 135, 137 (Me. 1980).

6

take enforcement action against CTI Bubar as evidence of the DEP's unequal treatment

of petitioner.

The petitioner's arguments are without merit. Petitioner admittedly violated the

DEP regulation regarding the removal of petroleum from tanks. See 06-096 CMR Ch.

691, § l1(B)(I)(b). Neither statute nor DEP rule compels the BEP to provide leniency for

a violation of DEP rules or allows an exception for "substantial compliance." Moreover,

notwithstanding any problems with cn Bubar's inspection, statutory provisions and

DEP rules squarely place responsibility for compliance on the owner of the facility. See,

~ 38 M.R.S. § 563(9); 06-096 CMR Ch. 691, § 11. Because the BEP acted upon

substantial evidence, petitioner's due process claim also fails. See Pine Tree Tel. & Tel.

Co. v. Pub. Utils. Comm'n, 634 A.2d 1302, 1305-06 (Me. 1993) ("Because the Commission

acted within its authority and discretion ... it did not deprive Pine Tree of its right to

due process.").

III. Whether the BEP improperly considered factors beyond its statutory authority

in support of its decision, in violation of petitioner's substantive due process

rights

Petitioner argues that the DEP and BEP are punishing petitioner because "the

tanks are located in a sensitive geologic area and because they are single-walled

fiberglass tanks surrounded by a poly-impervious liner, as opposed to double-walled

tanks." (Pet'r Br. at 24.) Petitioner's assertion is essentially founded upon four

documents it received through a Freedom of Access Act (FOAA) request. Petitioner's

argument suffers from numerous flaws.

As an initial matter, as explained above, the DEP and BEP decisions are based

upon substantial evidence, and thus should be upheld. See CWCO, Inc., 1997 ME 226, <JI

6, 703 A.2d at 1261. Moreover, regarding alleged constitutional violations, because it

does not appear that petitioner raised these issues before the agency below, they are

7

unpreserved for appellate review. See Oronoka Rest., Inc. v. Maine State Liquor

Comm'n, 532 A.2d 1043, 1045 n.2 (Me. 1987). Finally, the FOAA documents to which

petitioner cites do not support petitioner's assertions.? Petitioner references a series of

correspondence between two DEP employees proposing to add certain criteria to 06-096

CMR ch. 691 § 11(B)(2) for approving or denying requests by facilities to remain

temporarily out-of-service. (See R. Ex. 58-C.) Among the proposals was to include the

"proximity of the facility to one or more sensitive geological areas" and the "facility's

design characteristics" as additional factors. (Id.) Petitioner attempts to tie these

documents to the length of time it took the DEP to respond to its FOAA requests, and

other references by DEP staff to the petitioner's facility's location in a sensitive

geological area. s (See R. Exs. 25, 26, 28, 52.) The court cannot engage in the speculation

submitted by petitioner that the BEP or the DEP decisions were based on extra-statutory

factors, particularly in light of petitioner's admission that it violated a statutory factor.

Accordingly, petitioner's due process and unconstitutional taking claims fail.

IV. Whether the BEP violated the petitioner's right to procedural due process

Petitioner argues that the BEP violated its right to procedural due process by: 1)

depriving petitioner of the opportunity to present evidence of other similarly situated

storage facilities which were granted leniency by the DEP; and 2) failing to act

independently from the DEP in hearing petitioner's appeal. (Pet'r Br. at 35.)

Regarding petitioner's first contention, petitioner argues that the BEP should have

admitted evidence of the DEP's treatment of other facilities in various degrees of non­

7 The court notes that petitioner bears the burden to overcome the presumption that agency decision­

makers are fair and honest. In re Maine Clean Fuels. Inc., 310 A.2d 736, 751 (Me. 1973).

8 Also problematic for the petitioner is that virtually all proffered documents relate to DEP staff, while it

is the BEP-the ultimate agency decision-maker-that is of relevant concern. See Gorham v. Town of

Cape Elizabeth. 625 A.2d 898, 902 (Me. 1993) ("The statements of the code enforcement officer, who is not

a member of the Board, do not demonstrate denial of due process to Gorham.").

8

compliance. This argument is unfounded. Previous agency decisions need not always

be consistent to be supported by substantial evidence. See Hall v. Bd. of Envtl. Prot.,

498 A.2d 260, 266 (Me. 1985). Indeed, requiring the BEP to receive such evidence could

quickly devolve into "mini-trials" regarding each facility. Because, on 80C review,

inconsistent decisions do not establish that the BEP decision at issue was arbitrary,

imposing a due process requirement that the BEP receive such evidence is inadvisable

and constitutionally unnecessary. See, ~ Mathews v. Eldridge, 424 U.s. 319, 335

(1976) (considering whether additional procedural safeguards would not have any

value in preventing the "risk of an erroneous deprivation").

Regarding petitioner's second claim, petitioner appears to argue that the BEP did

not act independently from the DEP because the BEP "adopted, almost verbatim, the

very arbitrary and capricious rationale" the DEP articulated for refusing to admit

petitioner's proffered evidence. (Pet'r Br. at 40-41.) Contrary to petitioner's

characterization however, the statements are not suspiciously similar and simply

express the same well-founded rationale for limiting evidence of other facilities, as

explained above.

Petitioner also attempts to make much of the fact that the same Assistant Attorney

General (AAG) advised both the DEP and the BEP in this action. (Pet'r Br. at 42-46.)

Petitioner cites conflict of issue rules in support of its contention. See M. Bar. R.

3.4(b)(1). However, the Law Court has recognized the unique status of the AG,

specifically that the AG's office "may be authorized to represent several government

agencies in intragovernmentallegal controversies in circumstances where a private

lawyer could not represent multiple private clients." Superintendent of Ins. v. Attorney

Gen., 558 A.2d 1197, 1203 (Me. 1989). Petitioner's reliance on Mechanic Falls Water Co.

v. Public Utilities Commission, 381 A.2d 1080 (Me. 1977) does not compel an alternative

9

conclusion. The Mechanic Falls decision recognized-but left unanswered-the issue of

whether the AG could "appear on behalf of the public utility commission's staff while at

the same time advising the commission." See id. at 1106 n. 46. Although petitioner

acknowledges that it may not be feasible to require outside counsel to represent the BEP

in cases where the AG was heavily involved advising the DEP, petitioner insists that

"there should be a minimum requirement that a different attorney advise the Board."

(Pet'r Br. at 45.) In light of the AG's longstanding practice of assigning a single AAG to

advise all components9 of the DEP to assure consistent legal advice, and because DEP

staff did not appear as a party or advocate before the BEP, the court cannot agree that

such a requirement was mandated in this case.

V. Whether the DEP violated the petitioner's right to procedural due process.

Petitioner argues that the DEP violated its due process rights by "unreasonably,

willfully and unlawfully with[holding] evidence from the [BEP] regarding its

enforcement record for similarly situated facilities and regarding its knowledge of the

certified tank inspector's role in the violation cited" against petitioner. (Pet'r Br. at 47.)

For reasons discussed previously, including the deferential standard of agency review,

petitioner's admitted non-compliance with DEP rules, and the substantial evidence on

the record to support the BEP's decision, petitioner's argument fails. See also Kroeger

v. Dep't of Envtl. Prot., 2005 ME 50, <J[ 21, 870 A.2d 566, 573 ("An agency does not act

arbitrarily when it considers but disagrees with evidence submitted by one party and

believes evidence submitted by another party.").

VI. Whether the DEP violated the petitioner's right to equal protection.

9 "The department shall consist of the Board of Environmental Protection ... and of a Commissioner of

Environmental Protection." 38 M.R.S. § 341-A(2).

10

Finally, petitioner argues that the DEP violated its right to equal protection by

"treating it differently from other temporarily out-of-service facilities, presumably

because it is located on a sensitive geologic area and because of its tank design." (Pet'r

Br. at 60.) Petitioner's argument appears to be based on "selective enforcement." (Pet'r

Br. at 62.) In order to establish a constitutional equal protection violation based on

selective prosecution or selective enforcement, a plaintiff must at a minimum establish

"that the challenged decision ... had a 'discriminatory effect and that it was motivated

by a discriminatory purpose.'" See Polk v. Town of Lubec, 2000:ME 152, C[( 14, 756 A.2d

510,513; Aucella v. Town of Winslow, 628 A.2d 120, 124 (Me. 1993); Willhauck v.

Halpin, 953 F.2d 689, 711 (1st Cir. 1991) (quoting Wayte v. United States, 470 U.s. 598,

608 (1985)). Not only has the petitioner failed to prove that other out-of-service facilities

were "similarly situated," petitioner has not shown that any discriminatory effect was

motivated by a discriminatory purpose, "such as race, religion, intent to inhibit or

punish the exercise of constitutional rights, or malicious or bad faith intent to injure a

person." Yerardi's Moody St. Rest. & Lounge, Inc. v. Bd. of Selectmen, 932 F.2d 89, 92

(1st Cir. 1991).

The entry is:

The decision of the Maine Department of Environmental Protection is

AFFIRMED.

January$2009

11

Attorney for Petitioner

Diane A. Khiel, Bar #: 8177

Law Office of Diane A. Khiel

P.O. Box 70

Orono, ME 04473

Attorney for Maine Board of Environmental Protection

Nancy Macirowski, Asst. Atty. Gen., Bar #: 8987

Office of Attorney General

6 State House Station

Augusta, Maine 04333

-,~

Date Filed _---'6.L,!r-1L.5.J..,!LIO.L7L- _ Kennebec Docket No. _---.A-""P"-'0'--'-7_-...::!4""0'--­ _

County

Action _ _-----'-P...<:e:...Lt......i......t ......i......oLLDL.....J,f......ou.r------"Ru::f>.:..>vuiu:e:.JIw"----- _

80C

J.JASAJl

'Pnnr'l ,,-I "".7 Tn .... vs. MaiT.. ", Ro.qril of Fnvirnnmental Protection

Plaintiff's Attorney Defendant's Attorney

Diane A. Khiel, Esq. Mary M. Sauer, AAG

P.O. Box 70 6 State House Station

Orono, Maine 04473 Augusta, Maine 04333-0006

Date of

Entry

6/15/07 Petition for Review, filed. s/Khiel, Esq.

7/16/07 Certification of Record, filed. s/Sauer, AAG (in vault drawer)

Index to Agency Record, filed.

7/18/07 Notice and Briefing Schedule mailed to attys. of record.

7/30/07 Motion for Stay of Briefing Schedule, filed. s/Khiel, Esq.

Proposed Order, filed.

8/6/07 ORDER, Studstrup, J.

Motion for Stay of Briefing Schedule: Granted.

8/9/07 Amended Index to the Agency Record, filed. s/Sauer, AAG

9/10/07 Motion to Modify Contents of the Record, filed. s/Khiel, Esq.

Proposed Order, filed. (Attachment A and Attachments B-L) (Attachment D,E)

10/3/07 10/1/07: Respondents Opposition to Motion to Modify Content of Record and

Incorportated Memorandum of Law filed by Mary Sauer AAG

10/9/07 Reply to Opposition to Motion to Modify Contents of the Record, filed.

s/Khiel, Esq.

Certificate of Service, filed. s/Khiel, Esq.

3/6/08 Motion for Continuance of Oral Argument, or in the Alternative, to Decide

Motion on Written Submissions, filed. s/Sauer, Esq.

3/28/08 MOTION, Jabar, J.

Motion to continue is granted. The court will decid~ the pending motion

on the written submission.

Copies mailed to attys. of record.

Date of

Entry Docket No. AP-07-040

8/11/08 ORDER ON MOTION. Jabar. J.

Motion to add ATTACHMENT B. Granted.

Motion to add ATTACHMENT C. Granted.

Motion to add ATTACHMENT D. Granted.

Motion to add ATTACHMENT E. Granted.

Motion to add ATTACHMENT F. Granted.

Motion to add ATTACHMENT G. Granted.

Motion to add ATTACHMENT H. Granted.

Motion to add ATTACHMENT I. Granted.

Motion to add ATTACHMENT J. Granted.

Motion to add ATTACHMENT K. Granted.

Motion to add ATTACHMENT L. Granted.

Copies mailed to attys. of record.

8718/08 AMENDED NOTICE AND BRIEFING SCHEDULE ISSUED.

Copies mailed to attys. of record.

8/22/08 Motion to Enlarge Time for Filing Brief. filed. s/Khiel. Esq.

Proposed Order. filed.

08/26/08 ON 08/25/08: Order on Motion s/ Jabar. J.

Petitionser's motion to enlard the vriefing schedule. wherein

Petitioner's brief shall be due 40 days after August 21. 2008. is

hereby granted. copy Atty Khiel and AAG Sauer.

8/25/08 Second Amended Index to the Agency Record and documents numbered 57

through 76-L to be added to the tabbed administrative record. Filed

by Mary Sauer. AAG.

9/29/08 Pecitioner's Brief. Khiel. Esq.

10/29/08 Letter entering appearance. filed. s/Macirowski. AAG

Opposition to Petition for 80C Appeal. filed. s/Macirowski. AAG

Plaintiff's Reply. filed. s/Walsh. Esq.

11/14/08 Plaintiff's Reply Brief. filed. s/Khiel. Esq.

Notice of setting for J I ~I if

D

sent to attorneys of record~

1/8/09 Hearing held with the Hon. Justice Joseph Jabar. presiding.

Diane Khiel. Esq. for the Petitioner and Nancy Macirowski. AAG for the

Respondent.

Oral arguments made to the court. Court to take matter under advisement.

1/28/09 DECISION AND ORDER. Jabar. J.

The decision of the Maine Department of Environmental Protection is

AFFIRMED.

Copies mailed to attys. of record.

Copies to Repository.