# Pond View, Inc. v. Maine Bd. of Envtl. Protection > Superior Court of Maine · January 28, 2009 URL: https://www.frixlaw.com/law-library/cases/10809465 ## Case - **Court:** Superior Court of Maine - **Decided:** January 28, 2009 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Joseph M. Jabar - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment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/10809465 ## Opinion text 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, .:..>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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809465. Public record. Not legal advice.