Petition for Writ of Certiorari — Vahlsing v. Maine

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~ Supreme Court, U.S.

- 88 2127. FILED

jun 29 1889

No. - JOSEPH F. SPANIOL, JR

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In the ones

Supreme Court of the United States.

OCTOBER TERM, 1988.

FRED H. VAHLSING, Jr.,

PETITIONER,

THE STATE OF MAINE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MAINE.

DENNIS P. DERRICK,*

41 Porter Street,

Wenham, Massachusetts 01984.

(508) 468-7211

* Counsel of Record

BATEMAN & SLADE, INC. BOSTON. MASSACHUSETTS

Questions Presented.

I. Can a perjury conviction be upheld consistent with the

Due Process Clause where the alleged false statement was

made at a void administrative hearing and was immaterial to

any valid administrative inquiry?

II. Does an administrative proceeding which seeks to en-

force ex post facto a statutory scheme concerning hazardous

substances possess the legitimacy necessary to support a per-

jury prosecution for an alleged false statement made there?

Table of Contents.

Questions presented

Table of authorities

Opinions below

Jurisdictions

Constitutional and statutory provisions involved

Statement of the case

How the Federal question was raised

Reasons for granting the writ

I. The decision below conflicts with the decisions of

this Court which establish that as a matter of due

process the materiality element of the crime of per-

jury must be proven beyond a reasonable doubt

A. The void administrative proceedings

B. The irrelevancy of Vahlsing’s statement

II. The decision below conflicts with the decisions of

this Court which enunciate the important consti-

tutional principle that States may not pass or en-

force ex post facto legislation

Conclusion

Appendix follows page

Table of Authorities Cited.

CASES.

Bouie v. Columbia, 378 U.S. 347 (1964)

Christoffel v. United States, 338 U.S. 84 (1949)

ill

iV TABLE OF AUTHORITIES CITED.

Crowell v. United States Parole Com’n, 724 F.2d 1406

(3d Cir. 1984)

Dobbert v. Florida, 432 U.S. 282 (1977)

In re Winship, 397 U.S. 358 (1970)

Johnson v. Zerbst, 304 U.S. 458 (1938)

Lilienthal’s Tobacco v. United States, 97 U.S. 237

(1878)

Mapp v. Ohio, 367 U.S. 643 (1961)

Marks v. United States, 430 U.S. 188 (1977)

Mullaney v. Wilbur, 421 U.S. 684 (1975)

Ohio v. Kovacs, 469 U.S. 274 (1985)

Patterson v. New York, 432 U.S. 197 (1977)

State v. Lunney, 400 A.2d 759 (Me. 1979)

United States v. Freedman, 445 F.2d 1220 (2d Cir.

1971)

United States v. Icardi, 140 F. Supp. 383 (U.S.D.C.

1956)

United States v. Provinzano, 333 F. Supp. 255 (E.D.

Wis. 1971)

United States v. Remington, 208 F.2d 567 (2d Cir.

1953)

United States v. Wade, 388 U.S. 218 (1967)

United States v. Williams, 341 U.S. 58 (1951)

Weaver v. Graham, 450 U.S. 24 (1981)

12,

15,

13,

TABLE OF AUTHORITIES CITED. V

CONSTITUTIONAL PROVISIONS.

United States Constitution

Amendment XIV ye Ee be

Article I, Section 10, clause 1 3, 27

STATUTORY PROVISIONS.

28'U.S.C. § 1257(a) Z

Bankruptcy Act

Chapter | 1 4

Maine Administrative Procedure Act

17-A M.R.S.A. § 45] c ae |

38 M.R.S.A. §§ 1361-1371 3, 9, 16, 17

38 M.R.S.A. § 1362(1) 6

38 M.R.S.A. § 1362(2) 6n, 7, 8, 9, 12 et seq.

38 M.R.S.A. § 1365 6

38 M.R.S.A. § 1365(3) 8, 13

38 M.R.S.A. § 1365(4) 8

MISCELLANEOUS.

Developments in the Law, Federal Habeas Corpus,

83 Harv. L. Rev. 1038 (1970) 14

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No. -

In the

Supreme Court of the United States.

OCTOBER TERM, 1988.

FRED H. VAHLSING, Jr.,

PETITIONER,

THE STATE OF MAINE,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MAINE.

The petitioner, Fred H. Vahlsing, Jr., respectfully prays

that a writ of certiorari issue to review the judgment and opinion

of the Maine Supreme Judicial Court which were entered on

April 10, 1989, and April 11, 1989, respectively, which judg-

ment became final upon the denial of the petitioner's motion

for reconsideration on May 1, 1989.

Opinions Below.

The opinion of the Maine Supreme Judicial Court, as yet

unreported, appears in the appendix hereto (A. la-9a). The

order of the Maine Supreme Judicial Court denying the

petitioner’s motion for reconsideration appears in the appendix

hereto (A. lla). The unreported administrative order of the

Maine Department of Environmental Protection entitled Desig-

nation of Uncontrolled Hazardous Substance Site and Adminis-

trative Order, dated August 27, 1984, appears in the appendix

hereto (A. 29a-34a). The unreported administrative order of

the Maine Board of Environmental Protection entitled Appeal

of Designation of Uncontrolled Hazardous Substance Site and

Order, dated December 19, 1984, appears in the appendix

hereto (A. 34a-38a). The unreported decisions of the Maine

Superior Court, Silsby, J., dated May 2, 1986, and June 4,

1986, respectively, appear in the appendix hereto (A. 41a-44a).

Jurisdiction.

The judgment of the Maine Supreme Judicial Court affirming

the petitioner’s conviction of perjury was entered on April 10,

1989, with the written opinion supporting said judgment being

entered one day later. The petitioner filed a timely motion for

reconsideration with the Maine Supreme Judicia! Court which

motion was denied on May 1, 1989. The jurisdiction of this

Court to review the judgment of the Maine Supreme Judicial

Court is invoked under 28 U.S.C. § 1257(a).

Constitutional and Statutory Provisions Involved.

United States Constitution, Amendment XIV, § 1:

*_ . No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due proc-

ess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

United States Constitution, Article I, Section 10, clause 1:

“No state shall . . . pass any . . . ex post facto law

The full text of 17-A M.R.S.A. § 451 (Perjury) under which

the petitioner was convicted is set forth in the appendix hereto

(A. 49a-50a). The relevant portions of 38 M.R.S.A. §§ 1361-

1371 (Uncontrolled Hazardous Substance Sites) under which

the administrative proceedings took place, is reproduced in

the appendix hereto (A. 5la-55a).

Statement of the Case.

Petitioner Fred H. Vanhlsing, Jr. (““Vahising’’) was at all rele-

vant times the president of Vahlsing, Inc. (“the corporation”),

an entity organized and existing under the laws of the State

of Delaware. Duly licensed to do business in the State of

Maine, the corporation began in about 1961 the manufacture

and sale of frozen french-fry potatoes primarily to the fast food

industry at its potato processing complex in Easton, Maine.

The complex itself was located on about sixty-five (65) acres

of land which the corporation leased from the Easton Develop-

ment Corporation; the corporation’s processing facility also

made use of some contiguous acreage which it leased from

the Bangor and Aroostook Railroad Company. This entire

area, 1.e., the sixty-five (65) acres together with the contiguous

acreage, was enclosed by the corporation with a steel cyclone

fence except for the northerly border which was bounded by

Bangor and Aroostook railroad track. In August of 1971, chem-

icals used in connection with agriculture and the cleaning of

machinery of a nearby sugar mill were transferred to the cor-

poration’s potato processing complex and stored in a then

empty green-sided, black-roofed building used by the corpora-

tion for the storage of potatoes from September through May

(“the potato house”’). This structure was built by the corporation

in 1968 and was located entirely within the complex’s steel

cyclone fence on the contiguous parcel of land owned by the

Bangor and Aroostook Railroad Company and leased to the

corporation. The potato house itself was therefore the corpora-

tion’s personal property erected in 1968 as a necessary adjunct

to its potato processing facility.

On July 13, 1973, all of the chemicals beirig stored in the

potato house were conveyed to the State of Maine (via the

Maine Industrial Building Authority) by the corporation. Spe-

cifically, the corporation conveyed to MIBA “. . . any machin-

ery, equipment, spare parts, tools or other personal property

presently located on the real estate of Easton and Vahlsing

which can only be used on or in conjunction with sugar plant

machinery or in connection with the operation of a sugar plant”

(A. 14a) (Emphasis in original). Despite having assumed own-

ership of these chemicals in 1973, the State of Maine did not

remove them from the potato house and they remained there.

In July of 1974, the corporation filed for protection as a

debtor under Chapter 11 of the Bankruptcy Act in the United

States District Court for the Southern District of Texas

(Brownsville Division); thereafter it operated its Easton potato

processing complex as a debtor-in-possession. On August 31,

1976, an order issued from the bankruptcy court authorizing

the corporation to sell to McCain Foods, Inc. not only its lease-

hold interest in the potato processing complex located on the

sixty-five (65) acres of land owned by Easton Development

Corporation but also

[a]l! [of its] utilities, utility agreements, easements,

rights, and rights of way connected, or useful to the

operation of the potato processing facility or land

contiguous to the potato processing facility.

(A. 19a-20a) (Emphasis supplied). Pursuant to this order by

the bankruptcy court, the corporation on September |, 1976,

issued a Bill of Sale to McCain Foods, Inc. which described

the goods and chattels transferred thusly:

Ali furniture, fixtures, equipment, turbine systems,

machinery, tools, vehicles, and other personal prop-

erty belonging to Vahlsing, Inc., located on the prop-

erty of Easton Development Corporation in Easton,

Maine, and used now or formerly in connection with

the Potato Processing Plant business now or for-

merly operated by Vahlsing, Inc. in Easton, Maine,

including: but not limited to the items listed in

Schedule A....

(A. 25a) (Emphasis supplied).

At some time subsequent to its purchase of all of the corpo-

ration’s property used in conjunction with the potato processing

business, McCain enclosed the complex’s northerly boundary

with fencing so that the entire facility, including the contiguous

acreage owned by the Bangor and Aroostook Railroad Com-

pany and containing the potato house, was now bounded by

fencing. On August 3, 1979, the corporation was granted a

discharge from bankruptcy by the bankruptcy court (A. 27a-

28a). After the corporation obtained the discharge, there was

no lease ever executed between the corporation and the Bangor

and Aroostook Railroad Company.

On August 27, 1984, the Commissioner of Maine’s Depart-

ment of Environmental Protection issued an order designating

the potato house as well as the land underneath it as an uncon-

trolled hazardous substance site pursuant to 38 M.R.S.A.

§ 1365 (A. 29a-34a). Treating Vahlsing and the corporation

as one and the same entity, it found, among other things, that

‘“Vahlsing” is and was the owner of the potato house “during

which time that chemicals, including hazardous substances,

were brought to and placed in the building” (A. 29a-30a). it

was further found that “Vahlsing” has leased the land upon

which the potato house is located from the Bangor and Aroos-

took Railroad Company even though no rent had been paid

for the years 1978-1983 and no new lease had ever been exe-

cuted (A. 30a). Finding that some of the various chemicals

stored there since 1971 were hazardous substances within the

meaning of 38 M.R.S.A. § 1362(1), the Commissioner con-

cluded that “Vahising” and the Bangor and Aroostook Railroad

Company were responsible parties as defined by that same

section (A. 30a-33a, 5la-52a).' “Vahlsing” was therefore or-

dered to prepare a plan within five days, to remove “all hazard-

ous wastes, contaminated soil and water from the site” (A.

33a-34a).

The corporation (but not Vahlsing) appealed this administra-

tive order to the Maine Board of Environmental Protection (BEP)

'38 M.R.S.A. § 1362(2), provides:

Responsible party. “Responsible party” means any one or more

of the following persons:

A. The owner or operator of the uncontrolled site;

B. Any person who owned or operated the uncontrolled site

from the time any hazardous substance arrived there;

C. Any person who arranged for the transport or handling of

a hazardous substance, provided that the substance arrived at the

uncontrolled site; and

D. Any person who accepted a hazardous substance for trans-

port, provided that the substance arrived at the uncontrolled site.

(A. 35a-38a). On December 19, 1984, a hearing was held

with Vahlsing himself representing the corporation in support

of its argument that it should not be a responsible party within

38 M.R.S.A. § 1362(2). On the same day as the hearing, the

BEP found and concluded in a written order that the corporation

was a responsible party and it accordingly affirmed the Com-

missioner’s earlier designation while continuing his prior order

which had operated against both Vahlsing and the corporation

(A. 38a).

In the wake of the refusal by Vahlsing and the corporation

to assume financial responsibility for the clean-up costs associ-

ated with these chemicals stored in the potato house since

1971, an indictment issued on March 5, 1985, against Vahlsing

for perjury in violation of 17-A M.R.S.A. § 451 (A. 39a-40a,

49a-50a). The basis of the change was three allegedly false

statements made by Vahlsing while representing the corpora-

tion at the BEP hearing on December 19, 1984 (A. 39a). For

the purposes of this petition, only the third alleged false state-

ment is relevant.*? According to the indictment, this was a state-

ment made by Vahlsing before the BEP that the potato house

“had been sold by Vahising, Inc. to McCain Foods, Inc. in

1976” (A. 39a). Moreover, the indictment charged that this

alleged false statement was material because

if believed by [BEP], the Board would have been

likely to find that, contrary to the Commissioner’s

conclusion and finding on page 3 of the Order, Vahi-

sing, Inc. was not a responsible party within the

meaning of 38 M.R.S.A. § 1362(2)....

(A. 39a-40a).

es. During the perjury trial in the Maine Superior Court, the trial judge (Smith,

J.) dismissed the charges relating to the first two alleged false statements

because of insufficient evidence.

In the meantime, both Vahlsing and the corporation appealed

BEP’s ruling to the Maine Superior Court in accordance with

the Maine Administrative Procedure Act and 38 M.R.S.A.

§ 1365(4). On May 2, 1986, Silsby, J., found that even though

Vahlsing was a named party to the administrative proceedings

and was subject to the same orders concerning the clean-up

of the hazardous substances as the corporation, he was never

served with the Commissioner’s administrative order as re-

quired by 38 M.R.S.A. § 1365(3) (A. 41a-42a). In view of

the fact that Vahlsing’s appearance before the BEP was con-

fined to his status as president of the corporation and not

individually, Judge Silsby ruled that this failure by BEP to

effect proper service upon Vahlsing warranted the reversal of

the Commissioner’s decision against him and the sustaining

of his appeal (A. 42a). One month later, the same Maine

Superior Court judge sustained the corporation’s appeal from

the BEP’s decision (A. 43a-44a). He determined that while

there may have been sufficient evidence to support the BEP

decision, it had improperly placed the burden of proof upon

the corporation to show that it was not a responsible party

within 38 M.R.S.A. § 1362(2) (A. 43a-44a). As the Superior

Court judged observed, “‘[the] burden of proof is of fundamen-

tal importance and unless the legislature has otherwise provided

the party or agency making an assertion has the burden of

proving it” (A. 43a).* Judge Silsby accordingly vacated the

‘In fact, 38 MLR.S.A. § 1365(4), provides in pertinent part:

. . . The nature of the hearing before the [BEP] shall be an appeal.

At the hearing all witnesses shall be sworn and the department

{of environmental protection] shall first establish'the basis for the

order and for naming the person to whom the order was directed.

The burden of going forward shall then shift to the person appealing

to demonstrate, based upon the preponderance-of the evidence,

that the order should be modified or rescinded. . . .

(Emphasis supplied).

BEP’s decision against the corporation and remanded the entire

administrative matter to the BEP for a new hearing in accord-

ance with his order (A. 44a). A new hearing was never held

by BEP and consequently there has never been an enforceable

administrative finding affixing responsibility to the corporation

or Vahlsing for the hazardous substances found in the potato

house.

Despite these rulings which invalidated the administrative

proceedings against Vahlsing and the corporation, the perjury

trial of Vahlsing for the alleged false statements he made before

the BEP commenced in the Maine Superior Court on September

2, 1986, before Smith, J., and a jury. During and after the

presentation of the evidence, Vahlsing sought acquittal on the

one remaining alleged false statement in the indictment* by

contending inter alia that the statement was not material to

any valid inquiry by the BEP since Judge Silsby had ruled that

neither Vahlsing nor the corporation had been properly deter-

mined to be responsible parties under 38 M.R.S.A. §§ 1361

et seq. (A. 56a-58a). In addition, Vahlsing claimed that his

statement about the corporation’s sale of the potato house to

McCain Foods, Inc. in 1976 could not possibly have been

material to the BEP’s inquiry because if, as the prosecution

had asserted, there were no ex post facto problems with Maine’s

Uncontrolled Hazardous Substance Site Law, it could not have

mattered what occurred in 1976 since the corporation had

already owned the potato house for fifteen years prior to 1976

and was therefore a responsible party under 38 M.R.S.A.

§ 1362(2) in any event (A. 58a-60a). Finally, Vahlsing argued

that as a matter of law his alleged false statement concerning

the sale of the potato house in 1976 to McCain Foods, Inc. '

was immaterial since the corporation became relieved of any

responsibility for these hazardous substances or the expenses

*See note 2, supra.

associated with their clean-up upon its discharge from bank-

ruptcy in 1979 (A. 61la-66a). That is, regardless of the corpo-

rations’ sale of the potato house to McCain Foods, Inc. in

1976, its discharge from bankruptcy in 1979 relieved the cor-

poration from any financial obligations arising under Maine’s

environmental laws (A. 6la-66a). For all of these reasons,

Vahlsing ciaimed that the materiality element of the crime of

perjury had not been proven beyond a reasonable doubt.

Vahlsing’s arguments were rejected by the trial court and

on September 30, 1986, the jury found him guilty of perjury

(A. 2a). On December 18, 1986, Vahlsing was sentenced to

a one year term of imprisonment with all but sixty days thereof

suspended (A. 45a-46a). Upon a timely appeal to the Maine

Supreme Judicial Court, Vahlsing repeated all of his earlier

arguments concerning the prosecutor’s failure to prove mate-

riality beyond a reasonable doubt. In affirming the conviction,

however, the Supreme Judicial Court responded to these argu-

ments by simply noting that “[o]n appeal there is no longer

any issue concerning the materiality of any of the statements,

the fact that they were made or that they occurred in a judicial

proceeding” (A. 3a). Vahlsing’s subsequent timely motion for

reconsideration raised once again all of these arguments sur-

rounding the materiality of his alleged false statement before

the BEP and the necessity for proof beyond a reasonable doubt

on the issue. Moreover, the motion made explicit that these

arguments implicated the federal constitutional right to a fair

and impartial trial. Vahlsing’s motion for reconsideration was

eventually denied on May 1, 1989 (A. 11a). Execution of the

sentence has been stayed pending the disposition of this petition

for certiorari by Vahlsing (A. 47a-48a).

How the Federal Question Was Raised.

Vahlsing raised the federal constitutional issues of proof

beyond a reasonable doubt, due process, a fair and impartial

trial, and the ex post facto effect of Maine’s Uncontrolled

Hazardous Substance Site Law at trial in various motions to

dismiss or for acquittal and on appeal in his reply brief as well

as in his motion for reconsideration.

Reasons for Granting the Writ.

I. THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF

THIS COURT WHICH ESTABLISH THAT AS A MATTER OF

DUE PROCESS THE MATERIALITY ELEMENT OF THE CRIME

OF PERJURY MusT BE PROVEN BEYOND A REASONABLE

DouBT.

Vahlsing was charged by the State of Maine in its indictment

with making a false material statement before the BEP on

December 19, 1984, concerning the corporation’s sale of the

potato house to McCain Foods, Inc. in 1976 (A. 39a). Accord-

ing to the indictment, Vahlsing’s allegedly false statement was

material because

if believed by the [BEP], [it] would have been likely

to find that, contrary to the Commissioner’s conclu-

sion and finding on page 3 of the Order, [the corpo-

ration] was not a responsible party within the mean-

ing of 38 M.R.S.A. § 1362(2) and hence was not sub-

ject to enforcement orders or liable for costs incurred

by the State in abating any environmental hazards

posed by the site as described in the Order, all in

violation of 17-A M.R.S.A. § 451(1)(A) (1983).

(A. 39a-40a). Maine’s perjury statute under which Vahlsing

was prosecuted defines the materiality element to mean “‘ca-

pable of affecting the course or outcome of the proceeding”

(A. 50a). Under Maine law, then, the statement must be proven

to be not only false but also capable of affecting the course

or outcome of the proceeding. If such materiality is lacking

in the evidence, the crime of perjury could not have been

committed. State v. Lunney, 400 A.2d 759, 763-764 (Me.

1979).

Like every element of a crime, the State was constitutionally

required to prove the materiality of Vahlsing’s alleged false

statement beyond a reasonable doubt and its failure to do so

would be a violation of the Due Process Clause of the Four-

teenth Amendment. Patterson v. New York, 432 U.S. 197,

204-205, 209 (1977). Mullaney v. Wilbur, 421 U.S. 684,

703-704 (1975). In re Winship, 397 U.S. 358, 362-364 (1970).

Vahlsing submits that the State’s proof failed to show the

materiality of his statement because it was made during a void

administrative hearing and was not germane to any valid deter-

mination by the BEP as to whether the corporation was a

responsible party within Section 1362(2) of the Uncontrolled

Hazardous Substance Site Law. The affirmance of his perjury

conviction by the Maine Supreme Judicial Court was therefore

not only error of law but also a denial of his federal constitu-

tional rights.

A. The Void Administrative Proccedings.

In two separate orders entered after Vahlsing’s indictment

for perjury but before a trial on the charge, Judge Silsby of

the Superior Court first determined that the BEP hearing was

a nullity as to Vahlsing since he had not been served with the

Commissioner’s administrative order as required by 38

M.R.S.A. § 1365(3) (A. 41a-42a); and he then vacated the

BEP’s decision against the corporation as well because the

burden of proof had been improperly placed upon it to show

that it was not a responsible party under 38 M.R.S.A § 1362(2)

(A. 43a-44a). A new hearing before the BEP was recommended

but never undertaken (A. 44a). Nor did the BEP ever appeal

this ruling to any higher State court.

Because the BEP’s decision was vacated on such a funda-

mentally important irregularity, Vahlsing submits that the en-

tire proceeding before the BEP on December 19, 1984, was

void ab initio as to the corporation and the hearing therefore

could not serve as an appropriate forum to support this prosecu-

tion against Vahlsing for perjury or be relied upon by the State

to establish the materiality element of the offense against him.

This Court has held that perjury or false swearing cannot be

committed in proceedings which are void for want of jurisdic-

tion and that there must be a competent tribunal before a false

statement is shown to be perjurious. United States v. Williams,

341 U.S. 58, 65 (1951). Christoffel v. United States, 338 U.S.

84 (1949). Here the failure of the BEP to fix properly the

burden of proof upon the varties before it went to the very

heart of its factfinding mission and tainted irretrievably any

evidence that it heard. As Judge Silsby observed, “[t]he burden

of proof is of fundamental importance and unless the legislature

has otherwise provided the party or agency making an assertion

has the burden of proving it” (A. 43a). In this sense, the BEP

lacked the jurisdiction or competence to decide the matter

before it not because it lacked adjudicatory power under this

particular statutory scheme but because it failed to exercise

that power in the proper manner.

This Court has traditionally recognized such lack of jurisdic-

tion in other contexts when fundamental irregularities in the

process have fatally contaminated the truth-finding mission of

a tribunal. See, e.g., United States v. Wade, 388 U.S. 218,

~ 14

240-241 (1967); Mapp v. Ohio, 367 U.S. 643, 648-649 (1961);

Johnson v. Zerbst, 304 U.S. 458, 468 (1938). See also United

States v. Remington, 208 F.2d 567, 571-575 (2d Cir. 1953)

(Hand L., J., dissenting). Developments in the Law, Federal

Habeas Corpus, 83 Harv. L. Rev. 1038, 1045-1055, 1209-

1216 (1970). Moreover, this Court has consistently upheld the

fundamental importance of the proper allocation of the burden

of proof in order to insure a fair and impartial hearing consistent

with due process. See, e.g., Mullaney v. Wilbur, 421 U.S. at

699-701; In Re Winship, 397 U.S. at 361-364. See also Lilien-

thal’s Tobacco v. United States, 97 U.S. 237, 266 (1878).

All of these precedents should converge to convince this Court

that the BEP’s failure to allocate properly the burden of proof

of the parties before it on December 19, 1984, renders that

proceeding void ab initio and therefore it cannot serve as a

forum to support this perjury prosecution or be otherwise used

by the State to establish the materiality element of the charge

against Vahlsing.

B. The Irrelevancy of Vahlsing’s Statement.

The plain terms of 38 M.R.S.A. § 1362(2) makes any person

a “responsible party” if he (or it) is, in relevant part, an (A)

owner or operator of the uncontrolled site or (B) a person who

owned or operated the uncontrolled site from the time any

hazardous substance arrived there (A. 52a) (emphasis

supplied). The uncontradicted evidence before the BEP showed

that in August of 1971, the chemicals were transferred to the

corporation’s potato house. In July of 1973, the corporation

conveyed those chemicals to the State of Maine which then

failed to remove them from this location, Measuring this evi-

dence against the definitions of a “responsible party” under

Section 1362(2), it seems clear that the corporation is a “respon-

sible party” within the meaning of that section since it owned

the potato house at the time the chemicals arrived there in

1971. In fact, the Commissioner expressly found as a fact that

the corporation was a responsible party under subsection (B),

supra, when he determined that it “was the owner of that

building during which time that chemicals, including hazardous

substances, were brought to and placed in the [potato house]}”’

(A. 29a-30a).

Accordingly, the corporation's own evidence which it ad-

duced before the BEP established that it was a responsible

party under subsection (B) of Section 1362(2) because it owned

the potato house in 1971 when the chemicals were first trans-

ferred there. Vahlsing’s subsequent statement during the BEP

hearing concerning the corporation’s sale of the potato house

to McCain Foods, Inc. in 1976 therefore could not have been

material, i.e., capable of affecting the course or outcome of

the proceeding, to any finding of responsibility as charged in

the indictment (A. 39a-40a). That is, no matter what transpired

in 1976 between the corporation and McCain Foods, Inc., the

corporation still remained a responsible party based upon its

ownership of the potato house in 1971. Having thus anchored

the corporation’s responsibility for these chemicals to its own-

ership of the building in 1971, the BEP could not have been

deflected by any subsequent events and Vahlsing’s alleged

false statement therefore lacks the requisite materiality to sup-

port this conviction. See United States v. Freedman, 445 F.2d

1220, 1226 (2d Cir. 1971); United States v. Provinzano, 333

F. Supp. 255, 258-259 (E.D. Wis. 1971); United States v.

Icardi, 140 F. Supp. 383, 389 (U.S.D.C. 1956).

Finally, in view of the corporation’s discharge from bank-

ruptcy in 1979, it was relieved of all prior debts including any

obligations associated with the chemicals it stored in its potato

house from and after 1971. Ohio v. Kovacs, 469 U.S. 274,

278-279, 282-283 (1985). For this reason also, Vahlsing’s

alleged false statement before the BEP about the corporation’s

sale of the potato house to McCain Foods, Inc. in 1976 lacks

any materiality as a matter of law in any event. Stated another

way, even if believed by the BEP, Vahlsing’s statement could

not have affected the corporation’s status as a responsible party

which, because of its 1979 discharge from bankruptcy, was

nevertheless relieved of any financial obligation under the Un-

controlled Hazardous Substance Site Act. /d.

Il. THE DECISION BELOW CONFLICTS WITH THE DECISIONS

OF THIS COURT WHICH ENUNCIATE THE IMPORTANT CON-

STITUTIONAL PRINCIPLE THAT STATES MAY Nort PASS OR

ENFORCE Ex Post FACTO LEGISLATION.

The Uncontrolled Hazardous Substance Site Act, 38

M.R.S.A. 8§ 1361 et seq., is a statutory scheme which became

effective in 1983 and makes “[a]ny person who owned or

operated the uncontrolled site from the time any hazardous

substance arrived there” responsible for the costs of clean-up,

abatement or mitigation of the threats or hazards posed or

potentially posed by the uncontrolled site (A. 5la-55a). As

applied to the facts here, the BEP and the State have sought

to make this 1983 legislation reach back to 1971 in order to

hold the corporation responsible for the chemicals it stored in

its potato house since that time until 1973 when it sold those

chemicals to the State of Maine or 1976 when it sold the potato

house itself to McCain Foods, Inc. Moreover, the State has

employed this legislation to place Vahlsing in the untenable

position of being subject to a perjury indictment when (on

behalf of the corporation) he attempted to explain before the

BEP the reasons why the corporation should not be found to be

a responsible party within the meaning of Section 1362(2). In

effect and in reality, this 1983 enactment has thus been made

to apply to corporate acts beginning in 1971 and continuing

to at least 1976; and Vahlsing’s perjury prosecution depends

directly upon this retroactive reach of the Uncontrolled Hazard-

ous Substance Site Act. Vahlsing submits, however, that such

an expansive application of the Act by the State amounts to

ex post facto legislation which is prohibited by Article I, Sec-

tion 10, clause | of the federal constitution. Accordingly, the

BEP hearing seeking to enforce retroactively the reach of 38

M.R.S.A. §§ 1361 et seq. was a legal nullity and could not

possess the legitimacy necessary to support this perjury prose-

cution of Vahlsing for the alleged false statement he made

there.

An ex post facto law is any statute which punishes an act

which was not punishable at the time it was committed; or

imposes additional punishment to that then prescribed; or which

deprives one charged with a punishable act any defense avail-

able according to the law at the time when the act was commit-

ted. Weaver v. Graham, 450 U.S. 24, 28 (1981). Bouie v.

Columbia, 378 U.S. 347, 352-355 (1964). See Marks v. United

States, 430 U.S. 188, 191-192 (1977). Through this constitu-

tional prohibition, the Framers sought to assure that legislative

acts give fair warning of their effect and permit individuals to

rely on their meaning until explicitly changed. Weaver v.

Graham, 450 U.S. at 28-29. Dobber: v. Florida, 432 U.S.

282, 298 (1977). The ban also restricts “arbitrary” and poten-

tially vindictive legislation. /d. In order to make out a violation

of the ex post facto clause, two elements must be proven: the

law “must be retrospective, that is, it must apply to events

occurring before its enactment, and [the law] must disadvan-

tage the offender affected by it.” /d. at 29. See Crowell v.

United States Parole Com'n, 724 F.2d 1406, 1408 (3d Cir

1984).

Here the terms of the Uncontrolled Hazardous Substance

Site Act of 1983 explicitly impose responsibility for acts occur-

ring before its enactment, i.e., “from the time any hazardous

substance arrived” at the uncontrolled site (A. 52a). In addition,

the Act’s terms plainly disadvantage the corporation as well

as Vahlsing who were given no fair notice in 1971 that the

chemicals stored in the potato house at that time would be

characterized twelve years later as a hazardous substance ex-

posing the corporation to substantial financial penalties and

ultimately Vahlsing to a perjury prosecution as a result of the

Act’s enforcement by the BEP. For these reasons, there is a

violation of the ex post facto clause; the BEP hearing was

therefore a legal nullity and could not possess the legitimacy

necessary to support this perjury prosecution of Vahlsing for

the alleged false statement he made there.

Conclusion.

For all of the these reasons, a writ of certiorari should issue

from this Court to review the judgment and opinion of the

Maine Supreme Judicial Court.

Respectfully submitted,

DENNIS P. DERRICK,*

41 Porter Street,

Wenham, Massachusetts 01984.

(508) 468-7211

* Counsel of Record

Appendix Table of Contents.

Appendix A

Decision and judgment of the Maine Supreme Judicial

Court, dated April 11, 1989, and Aprii 12, 1989,

respectively

Appendix B

Order of the Maine Supreme Judicial Court denying

Vahlsing’s motion for reconsideration, dated May 1,

1989

Appendix C

Agreement between Vahlsing, Inc. and, among others,

Maine Industrial Building Authority, dated July 13,

1973

Appendix D

Order of the U.S. District Court for the Southern Dis-

trict of Texas (Brownsville Division) authorizing

Vahlsing, Inc. , debtor in bankruptcy, to transfer its

interest in property and to compromise and settle

its indebtedness, dated August 31, 1976

Appendix E

Bill of Sale reflecting McCain Foods, Inc.’s purchase

of all of Vahising, inc.’s property in Easton, Maine

which was used in connection with Vahlsing’s potato

processing plant business, dated September 1, 1976

lla

12a

18a

25a

il TABLE OF CONTENTS

Appendix F

Order of the U.S. District Court for the Southern Dis-

trict of Texas (Brownsville Division) confirming

the plan of Vahlsing, Inc., debtor in bankruptcy,

and discharging it from bankruptcy, dated August I,

\ 1979 27a

Appendix G

State of Maine’s Department of Environmental Pro-

tection’s designation of uncontrolled hazardous

substance site and administrative order, dated Aug-

ust 27, 1984 29a

Appendix H

State of Maine’s Department of Environmental Pro-

tection order in the matter Vahlsing’s appeal of its

designation of uncontrolled hazardous substance

site and order, dated December 19, 1984 35a

Appendix I

Indictment for violation of 17-A M.R.S.A. § 451 (Per-

jury), dated March 5, 1985 39a

Appendix J

Order of the Superior Court, Aroostook County, Silsby,

J., dated May 2, 1986 4la

Appendix K

Order of the Superior Court, Aroostook County, Silsby,

J., dated June 4, 1986 43a

TABLE OF CONTENTS

Appendix L

Judgment and commitment order, dated December

18, 1986

Appendix M

Vahlsing’s motion for stay pending prosecution of

this petition for certiorari

Appendix N

Text of 17-A M.R.S.A. § 451 (Perjury)

Appendix O

Relevant text of the Uncontrolled Hazardous Sub-

stance Sites Act, 38 M.R.S.A. §§ 1361 et seq.,

specifically §§ 1361, 1362, 1363, and 1367

Appendix P

Additional Memorandum A2 Supplementary Memo-

randum in Support of Motion for Acquittal, previ-

ously filed in the Superior Court, Penobscot County,

in 1986 perjury trial commenced on September 2,

1986

ill

45a

47a

49a

Sla

56a

Appendix A

MAINE SUPREME Reporter of Decisions

JUDICIAL COURT Decision No. 6047

Law Docket No. PEN-86-505

STATE OF MAINE

Vv.

FRED VAHLSING

Argued November 15, 1988

Decided April 1}, 1989

Before ROBERTS, GLASSMAN, CLIFFORD, HORNBY

and COLLINS, JJ.

HORNBY, J.

This case requires us to canvass a variety of evidentiary and

other issues that arose in the course of a twenty-day perjury

trial.

Fred H. Vahlsing, Jr. is the president of Vahlsing, Inc. The

Department of Environmental Protection (DEP) charged Vahl-

sing, Inc. with illegally storing hazardous wastes. At a hearing

on the charge, the Board of Environmental Protection (BEP)

permitted Vahlsing, Inc. to appear through its president (Vahl-

sing) rather than legal counsel. As a result, Vahlsing argued

legal and evidentiary matters to the Board, examined and cross-

examined witnesses and generally performed the same func-

tions as legal counsel. Indeed, he was called “counsel” by the

Board chairman. In addition, Vahlsing took an oath and tes-

tified as a witness. Although the Board found against Vahlsing,

Inc., its decision was subsequently vacated in Superior Court

(Aroostocko County; Silsby, J.).

As a result of statements he made at the hearing, Vahlsing

was later indicted on perjury charges consisting of three specifi-

cations. Ultimately only the last specification went to the jury:

that Vahlsing made the false statement under oath at the BEP

hearing “that the building identified in the (DEP) Order as

containing waste pesticides and other hazardous wastes had

been sold by Vahlsing, Inc. to McCain Foods, Inc. in 1976.”

In a bill of particulars that accompanied the jury to the jury

room along with the BEP hearing transcript, the State specified

nine instances of the alleged perjury. Over Vahlsing’s objec-

tion, the DEP’s Order charging the corporation (and Vahlsing

personally) with illegally storing the wastes also went to the

jury. The jury found Vahlsing guilty of perjury. Vahlsing

appeals the Superior Court (Penobscot County: Smith, J.) judg-

ment on the jury verdict of guilty. We affirm.

The Perjury Charge

The State charged Vahlsing with perjury for falsely swearing

at the BEP hearing “that the building . . . had been sold by

Vahlsing, Inc. to McCain Foods, Inc. in 1976.” In a bill of

particulars obtained on Vahlsing’s motion, the State listed nine

occasions when Vahlsing referred to either the sale or McCain’s

subsequent ownership. Vahlsing argues that his conviction

must be vacated because the specified instances cannot, as a

matter of law, constitute perjury. Essentially, this is an appeal

of the denial of his motion for acquittal, and we must examine

the record to determine “whether ‘on the evidence as a whole,

assessed most favorably to the State, a jury acting rationally

could not avoid having a reasonable doubt as to the defendant’s

guilt.’ State v. Gilbert, 473 A.2d 1273, 1275 (Me. 1984)

quoting State v. Howes, 423 A.2d 419, 424 (Me. 1981). See

also M.R.Crim.P. 29(a).

Maine’s perjury statue, 17-A M.R.S.A. § 481 (1983), pro-

vides:

1. A person is guilty of perjury is he makes:

A. In any official proceeding, a false material statement

under oath or affirmation, . . . and he does not believe

the statement to be true.

On appeal there is no longer any issue concerning the material-

ity of any of the statements, the fact that they were made or

that they occurred in an official proceeding. The trial judge

correctly instructed the jury that it could convict Vahlsing of

perjury only for statements he made under oath. In an oath

one swears that the testimony one gives is the truth, the whole

truth and nothing but the truth. Clearly, testimony does not

include argument or examination and cross-examination of wit-

nesses. It is immediately apparent from their contexts that in

seven of the nine instances in the bill of particulars, Vahlsing

was not testifying when he made the statements in question,

but acting in the role of counsel to the corporation.' Two of

the statements, however, were clearly testimony. In one, Vahl-

sing stated: “Well, I will testify under oath as I sit here that

McCain purchased everything inside of that fence when he

purchased the processing plant at Easton, Maine.” (The build-

ing in question was allegedly inside the fence.) In another, he

stated that he was about to testify and was under oath, then

said: “Everything inside the fence pursuant to United States

Bankruptcy Judge John R. Blint’s Order was included in the

sale to McCain signed by court order on September Ist, 1976.

‘The Board's own lawyer responded to one of Vahlsing’s assuredly perjurious

statements by commenting that there was a “much more direct way” to get

that information “[a]nd that would be to state what you [Vahlsing] just said

on direct examination .. . . You can say that directly without having to try

to elicit that on cross-examination for a long period of time -—.”’ This statement

by the Board’s lawyer was a direct recognition that Vahlsing was not then testi-

fying.

McCain has taken possession of this property.” As testimony,

either of these statements could support the perjury conviction.

All nine statements, testimonial and nontestimonial, went

to the jury in the bill of particulars because Vahlsing introduced

the bill of particulars into evidence. So far as any evidentiary

error is asserted in admitting the seven nontestimonial state-

ments, we look, therefore, only for obvious error, see M.R.

Evid. 103(d), and we find none. Since each of the nine state-

ments asserted either that Vahlsing, Inc. sold the building to

McCain or that McCain subsequently owned the building (and

there is no suggestion that anyone else sold the building to

McCain), it is impossible to conceive how a jury could find

that one of the statements was knowingly false without reaching

the same conclusion for the two testimonial statements. Indeed,

Vahlsing’s closing argument to the jury did not even attempt

to distinguish testimony from other kinds of statements.

With respect to Vahlsing’s remaining arguments on the sub-

stance of the perjury charge, the transcript of the hearing reveals

that Vahlsing recognized that he had taken an oath; the record

does not reveal any retraction; the court’s instructions

adequately covered Vahlsing’s statements regardless of

whether they are considered fact or opinion, see Shorette v.

State, 402 A.2d 450, 454 (Me. 1979) (false statement of opin-

ion or belief may constitute perjury); there was evidence to

support beyond a reasonable doubt the jury’s conclusion that

the assertions were false and that Vahlsing did not believe

them to be true; no instruction concerning conscious awareness

of perry penalties was required; and the other arguments do

not require discussion.

Admissability of Administrative Order

The State introduced into evidence the DEP Order that occa-

sioned the administrative hearing. This was an official, four-

page document bearing the emblem of the State of Maine

Department of Environmental Protection. It was signed by the

Commissioner of the Department. A segment captioned “Find-

ings of Fact” stated explicitly that Vahlsing, Inc. was the owner

of the building in question and included information in support

of that conclusion. Vahlsing’s initial objection that the Order

was a nullity was properly overruled. He then objected to the

relevance of certain portions of the Order if it was offered for

its truth. The trial court indicated that the irrelevant portions

could be kept from the jury’s consideration through some de-

vice such as editing the document before the jury saw it. The

State then asked its witness, the former Commissioner of the

DEP, to read from the Order. Vahlsing immediately objected

on grounds of hearsay, requesting a limiting instruction or a

statement by counsel that the contents of the document were

not being offered for their truth. Outside the jury’s presence,

the State conceded that the testimony was not being offered

for the truth of the assertions in the document, but “solely for

the purpose of establishing what the order says, which was

what the hearing was on.” This concession should have

prompted a limiting instruction under M.R.Evid. 105.” Vahl-

sing was told, however, that his remedy was to pursue the

matter on cross-examination. We received neither a limiting

instruction to the jury from the court nor a statement from

opposing counsel in the jury’s presence concerning the limited

purpose of the testimony. The witness was permitted to read

from the Order that Vahlsing, Inc. was the owner of the build-

ing in question, and ultimately the document went to the jury.

?M.R. Evid. 105 provides:

When evidence which is admissible . . . for one purpose but not

admissible .. for another purpose is admitted, the court upon

request, shall restrict the evidence to its proper scope and instruct

the jury accordingly.

Admission of this evidence without the requested limiting

instruction was clearly error. As to the proposition that Vahl-

sing, Inc. (rather than McCain) owned the building, the docu-

ment and the testimony were concededly inadmissable hearsay.

M. R. Evid. 801(c). See also M.R. Evid. 803 (8) (B) (iv).

The witness admitted that he had no personal knowledge of

the matters in the document. At the very least, Vahlsing was

entitled under M.R. Evid. 105 to an instruction that the jury

should not consider the document (or the reading of it by the

witness) for the truth of the propositions it contained.

We conclude, nevertheless, that admission of the document

and the testimony without the limiting instruction was harmless

error because of the overwhelming evidence of Vahlsing, Inc.’s

ownership of the building in question. The lawyer that rep-

resented McCain at the time of its purchase of assets from

Vahlsing, Inc. in 1976 testified that the transaction reflected

in the purchase documents did not include this building. The

Easton Town Manager testified that he visited the building in

1983 with McCain personnel and that McCain personnel denied

that McCain owned the building. He testified that in 1983 he

also visited the building with Vahlsing and that during the visit

Vahlsing never denied his company’s ownership of the build-

ing; said that he could get rid of the chemical materials in it;

offered to give the building to the Town; and referred to sal-

vaging the rafters in the building. The Town Manager testified

that in ongoing contacts with Vahlsing he never denied his

company’s ownership of the building. The evidence showed

that generally, Vahlsing took pains to avoid inappropriate tax-

ation, yet never did he challenge the Town’s ongoing taxation

of this building. Instead, he paid back taxes on behalf of

Vahlsing, Inc. to remove a tax lien on this and other locations.

When Vahlsing was asked on the stand why he did not deny

Vahlsing, Inc.’s ownership of the building to the Town Man-

ager, he had no adequate explanation except to say that “gener-

ally I don’t, as I conduct myself, attempt to inform someone

else about someone — for instance, Mr. Beaton, about some-

one else’s property. I just don’t do that.” Moreover, evidence

was introduced that subsequent to the alleged sale to McCain,

Vahlsing, Inc. paid rent to the Bangor and Aroostook Railroad

for the underlying land on which the building was situated.

Specifically, in a sale of railroad ties and other materials to

the Bangor and Aroostook Railroad from Vahlsing, Inc. , Vahl-

sing permitted an amount to be deducted for back rent.

As contrary evidence Vahlsing argued that the transaction

with McCain had involved the entire potato processing complex

and that this building was a potato hut, part of that complex,

and therefore included within the sale. His explanation of items

like the tax payments and lease payments appears primarily

to have been that his attention was not directed to this particular

building, a very small item in the overall scope of his business

affairs. In addition, he presented the testimony of a farmer,

corroborated by another witness, that he had been able to

obtain, from McCain personnel and with the assistance of

McCain personnel, chemicals stored in the building. There

was testimony, however, that the person who authorized the

acquisition of these chemicals, although the head of the potato

procurement office at McCain, had also been general manager

of the Vahlsing, Inc. operation and the farmer testified that

he did not know what entity this individual was representing

in giving him the chemicals.

In other words, the evidence of Vahlsing, Inc.’s ownership

of the building is overwhelming. It is true that we have stated

that written evidence is more significant to a jury than oral

testimony and therefore less likely to be considered harmless

error. See Morgan v. Maine, 312 A.2d 178, 185-186 (Me.

1973). In light of the particular strength of the evidence that

Vahlsing, Inc. had not sold the building to McCain in 1976,

however, we are confident that this case meets the test of harm-

less error, namely, that it is “highly probable tl.at the error [in

admitting the document] did not affect the judgment.” State

v. Huff, 469 A.2d 1251, 1253-54 (Me. 1984).°

Miscellaneous Matters

The trial court refused to permit Vahlsing to call a new

witness after resting his case because no new issue had been

raised by the State’s rebuttal testimony, the probative value

of the proposed evidence was minimal and there was “so little

apparent reason” for the late offer. We find no abuse of dis-

crimination. See M.R. Crim. P. 26(c).

There was no error in the denial of the mistrial motions and

in the court’s refusal to give a limiting instruction with respect

to evidence admitted on the first two perjury specifications.

(The court granted the defendant’s motion for acquittal on

these specifications before submitting the case to the jury.)

Much of the evidence from this very lengthy trial related to

more than one specification, and the defendant was able to

argue weight of the evidence to the jury. Moreover, the court

‘The document also contains references to hazardous substances on the

premises, references that could be considered prejudicial. When the Order was

first admitted, the presiding justice made clear that such objectionabie material

could be kept from the jury's consideration in some fashion, such as by blocking

it out. He informed the parties that they could take care of that matter before

the document went to the jury. The State did not ask the DEP Commissioner

to read those portions of the Order. In Vahlsing’s cross-examination of the

DEP Commissioner, however, he specifically went into the hazardous waste

portion and he has not pointed us to anywhere in the transcript where he later

attempted to pursue the trial court’s offer of editing the document. Thus, to

the extent that Vahlsing is raising this issue on appeal, we conclude that the

claim of prejudice was not properly preserved and review only for obvious

error. See M.R. Evid. 103(d). Although the references may have been exclud-

able under M.R. Evid. 403, our examination reveals that Vahlsing has not

documented that the proceeding was thereby tainted or that he was denied a

fair trial resulting in manifest injustice. State v. Whiting, 538 A.2d 300, 302

(Me. 1988).

was not required to inform the jury that it had granted the

defendant’s motion for acquittal on the first two specifications;

it was sufficient to inform the jury simply that those matters

were no longer before it for its consideration.

The tape recording of Harrison McCain was properly

excluded. McCain was not a party under M.R. Evid. 801(d)(2)

and the statement in question was not clearly against interest

under M.R. Evid. 80(b)(3). The Dixon testimony concerning

what he heard the parties to the sale transaction say about

property “within the fence” was properly excluded under Rule

403.

The entry is:

Judgment affirmed.

All concurring.

10a

STATE OF MAINE

SUPREME JUDICIAL COURT

Sitting as the Law Court Law Court Docket

No. PEN-86-505

STATE OF MAINE

v. MANDATE

FRED VAHLSING

The above-captioned cause having been brought before this

Court, sitting as the Law Court, from the Superior Court in

the County of Aroostook; and it having been heard and maturely

considered;

IT IS ORDERED that the Clerk of the Law Court enter

upon the Law Court Docket and certify to the Clerk of the

Superior Court in the County of Aroostook the following man-

date therein:

Judgment affirmed.

Dated: April 10, 1989.

FOR THE COURT:

Associate Justice

lla

Appendix B

STATE OF MAINE Supreme Judicial Court

PENOBSCOT, ss. Sitting as the Law Court

Law Docket No. PEN-86-505

STATE OF MAINE

v. ORDER

FRED VAHLSING

Upon motion of appellant for reconsideration.

Itis ORDERED that the motion be, and it hereby is, DENIED.

Dated: May 1, 1989

For the Court,

David G. Roberts

Associate Justice

12a

Appendix C

AGREEMENT

WHEREAS, there exist certain disputes relevant to machin-

ery, equipment and other items located on the real estate of

Aroostook Development Corporation (hereinafter called

Aroostook”), which real estate is presently owned by Maine

Industrial Building Authority (hereinafter called ““MIBA”’), as

a result of certain foreclosure proceedings which commenced

on August 24, 1971, and

WHEREAS, Vahlsing, Inc., (hereinafter called “Vahl-

sing”), claims an interest in such machinery, equipment and

other items, and

WHEREAS, MIBA, Aroostook and Maine Sugar Industries,

Inc., (hereinafter called “MSI”’) also claim an interest in such

machinery, equipment and other items, and

WHEREAS, there exist a Utilities Agreement and a Utilities

Service and Lease Agreement and Amendment thereto between

Vahlsing, MSI, Aroostook and Easton Development Corpora-

tion, (hereinafter called “Easton’”), under which Vahlsing

claims there are sums due Vahlsing from MIBA, and

WHEREAS, there are pending numerous legal proceedings

involving Vahlsing, MIBA, MSI, Beet Farm Machinery Cor-

poration (hereinafter called “BFMC”), Aroostook, Easton and

Mainstay Corporation (hereinafter called “Mainstay’’).

NOW, THEREFORE, in the interest of resolving the forego-

ing disputes and determining the interests of the various parties

to monies or property, the parties agree as follows:

1. Vahlsing, MSI, Aroostook, MIBA, BFMC and Easton

will execute Stipulations of Dismissal with prejudice dismiss-

ing any and all claims which they or any one of them may

have against each other concerning actions pending.

2. All machinery, equipment, spare parts, tools and any

other personal property located on the real estate of Aroostook

13a

which was foreclosed by MIBA on August 24, 1971 shall

become the property of MIBA except:

(a) One (1) John Deere Tractor

(b) One (1) Potato Harvester

(d) One (1) 50 Ib. Potato Bagger Sewer.

In addition, certain machinery and equipment originally owned

by BFMC and loaned by MSI to farmers in New Jersey and

Pennsylvania shall also become the property of MIBA. Vahl-

sing, Easton, MSI, Aroostook and BFMC agree to give up all

right, title and interest in and to any such aforesaid machinery,

equipment, spare parts, tools and any other personal property,

except as hereinbefore described in (a), (b), (c) and (d).

3. Vahlsing and MSI agree to assist MIBA in defending or

prosecuting any and all claims which it may have in and to

any of the aforesaid machinery, equipment, spare partes, tools

and any other real or personal property as outlined in 2 herein

so long as MIBA pays Vahlsing’s and MSI’s reasonable ex-

penses relative thereto.

4. F. H. Vahlsing, Jr., on behalf of Vahlsing, MSI and

Vahlco Corporation (hereinafter “Valco”), agrees to deliver

to MIBA all plans, operating and maintenance information,

including manuals, relating to the sugar plant, its machinery,

equipment, spare parts and tools located on the former real

estate of Aroostook, now owned by MIBA, in Vahlsing’s,

MSI’s and/or Vahlco’s possession, and hereby grants permis-

sion to any ohter party who has possession of the same, includ-

ing BMA, the designers of the plant, to deliver them to MIBA.

5. MIBA agrees to give up all its right, title and interest in

and to any machinery, equipment, spare parts, tools or other

personal property located on the real estate of Easton and

Vahlsing, excepting, however, any right, title and interest

which MIBA may now or hereafter have by virtue of its

guaranty of certain loans to Easton and more particularly de-

l4a

scribed in paragraph six. Vahlsing and Easton agree to give

and convey to MIBA any machinery, equipment, spare parts,

tools or other personal property presently located on the real

estate of Easton and Vahlsing which can only be used on or

in conjunction with sugar plant machinery or in connection

with the operation of a sugar plant.

6. MIBA agrees to dismiss any and all claims against Vahl-

sing and MSI for monies due in consideration of Vahlsing and

MSI giving up all of their right, title and interest in machinery,

equipment, spare parts, tools and other personal property

located on the real estate of Aroostook now owned by MIBA,

except for any obligation which may now or hereafter exist

by reason of MIBA’s guaranty of certain loans to Easton rela-

tive to mortgages and security agreements on property of Eas-

ton.

7. MIBA, Vahlsing, Aroostook, Easton and MBI jointly

and severally agree that the Utilities Agreement dated July 22,

1965, the Utilities Service and Lease Agreement dated Novem-

ber 1, 1966 and the Amendment to Utilities Service and Lease

Agreement dated April 4, 1969, is terminated and acknowl-

edged that all obligations of any of the above parties to any

one or more of the others are fully satisfied and that all the

machinery and equipment relating thereto located on the prop-

erty of Easton and/or Vahlsing, is the property of Easton and/or

Vahlsing.

8. The parties hereto agree to exchange mutual general re-

leases from liability except as to matters herein reserved.

9. Vahlsing, Easton and MIBA mutually agree that each of

them shall have the joint right to use the facilities owned or

leased by the other relating to water (including Lake Christina,

Lake Josephine and Prestile Stream), waste disposal systems,

fresh water systems, fire protection systems, steam and elec-

trical systems, including all mains, pumps, pipes, wires,

generators and other equipment in connection therewith, pro-

vided that each party shall pay to the owner of the facilities

1Sa

being utilized its share of the cost as determined by regularly

accepted accounting principles in proportion to the services

utilized by the party to the total services utilized by the parties,

provided, however, that the capital cost of amy equipment

presently owned by one of the parties hereto and herein quit-

claimed to another party or parties shall not be considered in

the rate base of the party to whom quit-claimed in determining

its share of the cost, and further provided that the water located

in Lake Christina shall not be considered in such rate base.

_ The control. operation and maintenance of Lake Christina and

Lake Josephine, the earthen dam works, locks, spillway, and

all other facilities relating thereto shall be the responsibility

of Vahlsing. MIBA, Vahlsing and Easton each agree with the

other to grant to the other easements to pass over the properties

of the other for the purpose of drawing or discharging water

from Lake Christina or into Lake Josephine, or from or into

the Prestile Stream (waste water discharged into the Prestile

Stream shall be downstream of the Vahlsing intake pump sta-

tion), in the event the use of the present facilities becomes

impracticable or undesirable.

10. Vahlsing, MIBA, Aroostook, Easton, BEMC, MSI and

Mainstay agree to execute any and all documents necessary

to carry out the substance of this agreement.

11. This Agreement shall be binding upon and inure to the

benefit of the successors or assigns, of the parties hereto.

12. F. H. Vahlsing, Jr., and/or the other parties hereto in

which he has an interest shall purchase the notes given by MSI

to the beet farmers in Maine for certain of their crops, in an

amount not to exceed One Hundred and Sixty Thousand Dollars

($160,000.00) without interest, provided that if said notes do

equal $160,000.00, the balance shall be refunded to Vahlsing,

and if said notes in the aggregate exceed said amount then

payments thereon shall be prorated. Said amount shall be paid

in escrow, notice shall be given by publication, and by regis-

16a

tered or certified mail where possible, the noteholders being

given a reasonable time within which to deposit their notes

with the escrow agent.

This Agreement is further conditioned upon the funds to

accomplish this settlement being properly appropriated.

13. In consideration of the foregoing Agreement MIBA

agrees to pay to Vahlsing the sum of Five Hundred and Forty-

Five Thousand Dollars ($545,000). Vahlsing, MSI, Mainstay

and BFMC agree to waive any rights which they or any of

them may have to any and all monies being held in escrow

pursuant to the order of the Aroostook County Superior Court

in the proceeding of Vahlsing, Inc. et al v. Maine Industrial

Building Authority et al, Civil Action Docket No. 10543.

IN WITNESS WHEREOF, the parties hereto have hereby

affixed their hands and seals.

DATED this 13th day of July 1973.

Maine Industrial

WITNESS: Buiiding Authority

Chairman

Vahlsing, Inc.

President

Aroostook Development Co.

President

Easton Development Corp.

President

Beet Farm Machinery Corp.

President

17a

Maine Sugar Industries, Inc.

President

Mainstay Corporation

President

F.H. Vahlsing, Jr.

Vahlco Corporation

President

18a

Appendix D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS ~

BROWNSVILLE DIVISION

IN RE:

VAHLSING, INC., BANKRUPTCY NO. 74-B-12

DEBTOR (CHAPTER XI)

ORDER AUTHORIZING TRANSFER

OF INTEREST IN PROPERTY;

ORDER AUTHORIZING COMPROMISE

AND SETTLEMENT OF INDEBTEDNESS

At Houston in said District on this 31st day of August,

1976, came on to be heard the Application for Authority to

Transfer Interest in Property and the Application for Authority

to Compromise and Settie Indebtedness (the Application), filed

by Vahlsing, Inc., and its wholly owned subsidiary Mainstay

Corporation, the Debtors in the above entitled and numbered

proceeding (Debtor) the Maine Guarantee Authority, (MGA),

XONU Intercontinental Industries, Inc., (XONU), Easton De-

velopment Corporation (EDC), and Easton Storage Corpora-

tion (EASTON), and the Court having conducted a hearing in

open Court and all Applicants having appeared in open Court

and other interested parties, including the United States of

America by and through its instrumentality, the Economic

Development Administration (EDA), among others, having

appeared; and the Court having heard testimony on the Appli-

cation and having heard arguments from Counsel for the Debtor

and having heard from attorneys or representatives from the

additional Applicants and other interested parties present at

19a

said hearing; and considering the above the Court is of the

opinion that the Debtor should be authorized to transfer the

interest in property and to compromise and settle the indebted-

ness as set forth in the Application on the terms and conditions

set forth therein and in the memorandum of understanding and

the stipulation attached as Exhibit “A” to the Application, and

the Court being of the opinion that the transfer, compromise

and settlement would be in the best interest of the Estate and

its unsecured creditors; and that the same will enable the Debtor

to file an Amended Plan of Arrangement and have the same

confirmed by proper order of this Court and the Court being

of the opinion that sufficient cause exists for no notice to be

given to all creditors pursuant to Rule 11-24, Chapter XI Rules,

and no adverse interest appearing, it is therefore

ORDERED, that the Debtor should be, and it is hereby

authorized to consummate and finalize that certain agreement

with McCain Foods Limited, (McCain), and it is further au-

thorized to settle and compromise those claims and indebted-

nesses with MGA, EDA, XONU, EDC, and EASTON all are

more fully outlined and set forth in the Application and the

Exhibit “A” thereto; and it is further

ORDERED, that the Debtor is specifically authorized to

execute and perform all the obligations and undertakings con-

tained in that certain memorandum of agreement which is

attached as Exhibit “A” to the Application; and it is further

ORDERED, that the Debtor is specifically authorized to

transfer by assignment and sale to McCain or its designee all

of the Debtor’s right, title and interest in and to the following

property:

A. Leasehold interest in the potato processing facility locat-

ed at Easton, Maine, owned by EDC, subject to

mortgages and security interest in favor of MGA, EDA,

XONU and any other lien interests that may be outstand-

ing with respect thereto:

20a

B. Equipment and machinery including the 7500 KVA Tur-

bine engine and boilers, generators and equipment used

in connection therewith referred to as the turbine system

located at and/or in the potato processing facility located

at Easton, Maine;

C. All utilities, utility agreements, easements, rights, and

rights of way connected, or useful to the operation of

the potato processing facility or land contiguous to the

potato processing facility;

and it is further

ORDERED, that the Debtor be, and it is hereby authorized

to sell all of its right, title and interest in and to approximately

200 acres of real property surrounding the potato processing

facility owned by EDC more commonly known as the Thomp-

son, Witherly and Fitzherbert Farms to XONU Intercontinental

Industries on the terms and conditions set forth in the Applica-

tion and the Exhibit “A” atached thereto said sale conditioned

upon a credit of Sixty Thousand and No/100 Dollars

($60,000.00) of the Debtor’s secured debt owing to XONU

and further conditioned upon subsequent transfer by XONU

of said property to McCain or its designee and it is further

ORDERED, that the Debtor is authorized to and shall receive

frora MGA, EDA, and EDC a full and final release and satis-

faction of all debts and claims of any type whatsoever that

may exist by and between the named entities and the Debtor,

and it is further

ORDERED, that the Debtor and McCain or its designee

shall receive from XONU a reduction in the amount of lien

indebtedness that attaches to the potato processing facility

owned by EDC and the equipment and machinery located

therein and the 200 acres of land owned by the Debtor in the

amount of Nine Hundred Twenty-Two Thousand Nine

Hundred Sixty-Six and No/100 Dollars, ($922,966.00), and

further that in connection with the delinquent payments of

2la

approximately Eighty-Eight Thousand and No/100 Dollars

($88,000.00) owed by Debtor to XONU relative to the potato

processing facility said indebtedness shall become a general

unsecured debt rather than an administrative expense of this

Proceeding, it is further.

ORDERED, that in consideration- of XONU making the

required payments to satisfy the Debtor’s delinquent indebted-

ness on the currents payments owing to MGA and EDA and

the conversion of Eighty-Eight Thousand and No/100 Dollars,

($88,000.00) of administrative expenses to a general unsecured

debt, and in further consideration of the release of approxi-

mately Nine Hundred Twenty-Two Thousand Nine Hundred

Sixty-Six and No/100 Dollars, ($922,966.00) of lien indebted-

ness on the potato processing facility and land to enable the

Debtor to consummate the transaction with McCain or its de-

signee, and in further consideration of the renewal and exten-

sion on more favorable terms of the balance of the XONU lien

indebtedness to McCain or its designee in order to facilitate

the consummation of the McCain transaction and in further

consideration of the sale by XONU of certain real property

owned by it to McCain to facilitate the consummation of the

McCain transaction the Debtor is hereby authorized to issue

to XONU a promissory note in the amount of Nine Hundred

Twenty-Two Thousand Nine Hundred Sixty-Six and No/100

Dollars, ($922,966.00), payable over a ten (10) year period

of time at six percent (6%) interest per annum, and the Debtor

is further authorized to issue to XONU to secure the payment

of said promissory note a lien and sercurity interest in and to

all of the Debtor’s real and personal property to which the

Debtor retains any right, title and interest subsequent to the

consummation of the McCain transaction, and it is further

ORDERED, that except as modified with respect to XONU,

the property which shall be transferred by the Debtor to Mc-

Cain, or its designee, shall be subject to all valid and existing

liens and security interests as they may appear, and it is further

22a

ORDERED, that Debtor will grant to the Internal Revenue

Service, (IRS), a first mortgage in the amount of Eighty-Five

Thousand and No/100 Dollars ($85,000.00), to secure payment

of any sum due to IRS, on the Powers Fresh Potato Warehouse,

land thereunder and adjacent thereto and will deliver to IRS a

certified check in the amount of One Hundred Seven Thousand

and No/100 Dollars, ($107,000.00), both obligations owing

to the IRS to be performed prior to the closing with McCain

and prior to the closing conveying the Monte Alto, Texas,

water and sewer system, and further that upon performance

by Debtor of the above obligations to the IRS, the IRS is

hereby ordered to issue a Certificate of Partial Discharge which

will discharge IRS liens on those items which are to be con-

veyed to McCain, NAC, and [illegible] it is further

ORDERED, that the transfer to McCain will be closed at

the office of Rudman, Rudman & Carter, Bangor, Maine, on

September |, 1976, and that upon closing of the same McCain

will be granted possession of the potato processing plant owned

by EDC. At closing all payments and documents contemplated

by the Application shall be held in escrow by McCain’s counsel

until September 13, 1976. The transfer and sale will become

final on September 13, 1976, and the documents and payments

will be distributed and made provided no notice of appeal of

this order has been filed, and it is further

ORDERED, that in the event any appeal is filed to this

Order within ten (10) days after the entry of the same, McCain

shall give up possession of the potato processing plant owned

by EDC, the documents and payments held in escrow shall be

returned to the granting parties and the assignment and sale

to McCain, the compromise and settlement with MGA, EDA,

and XONU and all agreements executed as part of the assign-

ment and transfer and the compromise and settlement shall be

terminated and deemed null and void without further order of

23a

this Court and without liability to McCain or its escrow agent,

and it is further

ORDERED, that the sale and transfer to McCain and the

acquiescence of EDA to the same and to the compromise and

settlement of its debt as set forth in the Application is specific-

ally conditioned upon the full compliance by appropriate parties

with the terms and conditions of the Stipulation and Consent

attached hereto as Exhibit “I” and incorporated herein.

Entered at Houston, Texas, this 31st day of August, 1976.

JOHN R. BLINN, BANKRUPTCY JUDGE

AGREED AND APPROVED

AS TO FORM AND CONTENT

TRUE COPY I CERTIFY

VAHLSING, INC. ATTEST:

V. Bailey Thomas, Cl.

By: By:

ITS:

Mainstay Corporation,

BY:

ITS:

Maine Guarantee Authority,

BY:

ITS:

Easton Development Corporation,

BY:

ITS:

24a

Easton Storage Corporation,

BY:

ITS:

XONU Intercontinental Industries,

BY:

ITS:

Economic Development Administration,

BY:

its:

McCain Food Limited

BY:

ITS:

25a

Appendix E

BILL OF SALE

KNOW ALL MEN BY THESE PRESENTS, That Vahlsing,

Inc. , a Detaware-corporation with a place of business in Easton,

County of Aroostook, State of Maine, pursuant to-authority

granted in the matter of Vahlsing, Inc., Debtor, in the United

States District Court for the Southern District of Texas,

Brownsville Division, by the Bankruptcy Judge of said Court,

for consideration paid by McCain Foods, Inc., a corporation

with a place of business in Washburn, County of Aroostook,

does hereby grant, sell, convey, transfer, and deliver unto the

said McCain Foods, Inc., the following described goods and

chattels, namely:

All furniture, fixtures, equipment, turbine systems, machin-

ery, tools, vehicles, and other personal property belonging to

Vahlsing, Inc., located on the property of Easton Development

Corporation in Easton, Maine, and used now or formerly in

connection with the Potato Processing Plant business now or

formerly operated by Vahlsing, Inc. in Easton, Maine, includ-

ing but not limited to the items listed in Schedule A attached

hereto.'*!

TO HAVE AND TO HOLD all and the singular the said

goods and chattels unto the said McCain Foods, Inc., its suc-

cessors and assigns, to its own use and behoof forever.

The undersigned covenants with the said McCain Foods,

Inc. that it is the lawful owner of these goods and chattels,

and that they are free from all encumbrances, and that it has

good right to sell the same and it will warrant and defend the

same unto the said McCain Foods, Inc., and guaranty that

they shall be free from claims and demands of all persons,

except Economic Development Administration, Maine

Guaranty Authority or any interest of Easton Development

Corporation.

[* Schedule A is a voluminous compilation of various property not at issue here. ]

26a

IN WITNESS WHEREOF, Vahlsing, Inc. has caused this

to be signed as an instrument under seal by F. H. Vahlsing,

Jr., its President, duly authorized, this first day of September,

1976.

Witness: Vahlsing, Inc.

President

CONSENT BY MORTGAGEE

Economic Development Administration, United States De-

partment of Commerce, assignee of Small Business Admini-

stration, hereby assents to the above sale of goods and chattels

pursuant to the terms of the chattel mortgage from Vahlsing,

Inc. to Small Business Administration dated September 21,

1964, recorded in Southern Aroostook Registry of Deeds, Book

924, Page 144, and assigned by Small Business Administration

to Economic Development Administration, U.S. Department

of Commerce.

Economic Development

Witness: Corporation

27a

Appendix F

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

IN RE:

VAHLSING, INC., BANKRUPTCY NO. 74-B-12

DEBTOR (CHAPTER XI)

NOTICE OF ORDER OF CONFIRMATION

OF PLAN AND DISCHARGE

TO THE DEBTOR, ITS CREDITORS, AND OTHER PARTIES

IN INTEREST:

Notice is hereby given of the entry of an Order of this Court

on August 1, 1979, confirming the Debtor’s Plan dated July

10, 1978, and providing further that:

A. Except as otherwise provided or permitted by the Plan

or such Order:

(1) The above named debtor is released from all dis-

chargeable debts;

(2) Any judgment theretofore or thereafter obtained in

any court other than this Court is null and void as a determin-

ation of the personal liability of the Debtor with respect to any

of the following:

(a) Debts dischargeable under § 17a anc » of the

Bankruptcy Act;

(b) Unless theretofore or thereafter determined by

Order of this Court to be nondischargeable, debts alleged to

be excepted from discharge under clauses (2) and (4) of § 17a

of the Act;

Order of this Court to be nondischargeable, debts alleged to be

28a

excepted from discharge under clause (8) of § 17a of the Act,

except those debts on which there was an action pending on

July 14, 1974, the date when the first petition was filed initiat-

ing a case under the Act, in which a right to jury trial existed

and a party has either made a timely demand therefore or has

submitted to this Court a signed statement of intention to make

such a demand;

(d) Debts determined by this Cou.t to be discharge-

able under § 17c(3) of the Act.

B. All Creditors whose debts are discharged by said Order

and all Creditors having claims of a type referred to in para-

graph (A)(2) above are enjoined from instituting or continuing

any action or employing any process to collect such debts as

personal liabilities of the above named Debtor.

ENTERED at Houston, Texas, this 3rd day of August, 1979.

JOHN R. BLINN

BANKRUPTCY JUDGE

29a

Appendix G

STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

STATE HOUSE STATION 17 AUGUSTA, MAINE 04333

ADMINISTRATIVE ORDER

IN THE MATTER OF

F.H. VAHLSING, JR.

PRESIDENT and DESIGNATION OF

VAHLSING, INC. UNCONTROLLED

HAZARDOUS SUBSTANCE

Proceeding Under 38 M.R.S.A. SITE& ADMINISTRATIVE

Section 1365, Uncontrolled ORDER

Hazardous Substance Sites

JURISDICTION

This designation of Uncontrolled Hazardous Substance Site and

Administrative Order is issued pursuant to the authority vested

in the Commissioner of Environmental Protection under the

Uncontrolled Hazardous Substance Sites Law, 38, M.R.S.A.,

Sections 1361-1370.

FINDINGS OF FACT

). F.H. Vahlsing, Jr is President of Vahlsing, Inc. Vahlsing,

Inc. is a corporation organized and existing under the laws

of the State of Delaware. F.H. Vahlsing, Jr. and Vahlsing,

Inc. are hereinafter referred to as “Vahlsing.” _

2. Vahlsing is the owner of one building, formerly a potato

house, and was the owner of that building during which

30a

time that chemicals, including hazardous substances, were

brought to and placed in the building. The building is lo-

cated on land in Easton, Maine, owned by Bangor and

Aroostook Railroad. The land is described as being Lot 19

on Map 14 which is on file at the Assessor’s Office in the

Town of Easton.

Vahlsing has leased the land upon which the building is

located from the Bangor and Aroostook Railroad since

1971. In March 1983, Vahlsing received notification from

the Railroad that the property lease would be cancelled if

the rent for the years 1978-1983 was not paid. The rent

was paid in July 1983 although a new lease agreement

which had been forwarded to Vahlsing was never fully

executed. According to the Railroad, Vahlsing continues

to lease the property.

The building and land are hereinafter referred to as “the

site.”

3. Over 2,500 gallons of chemicals, including hazardous sub-

stances are located at the site in containers of various sizes

and condition.

4. Vahlsing is storing or has disposed of, among others, the

following hazardous substances at the site:

a. 2,4-dinitro-6-(1-methylpropyl)-phenol (dinoseb)

b. arsenic

c. corrosive liquid

15. These substances exhibit the following characteristics and

threats to public health and safety in the event they are

released into the environment:

a. 2,4-dinitro-6-(1-methylpropyl)-phenol (dinoseb)

Dinoseb is highly toxic by oral and dermal exposure.

Human deaths have occurred from ingestion, with con-

vulsions and vomiting seen. Long term exposures of

3la

some animals to non-fatal doses have caused cataracts

and reduced growth. The acute oral LD, (rat) is reported

variously as 25-30 mg/kg.

This substance is classified as acutely toxic hazard-

ous waste #P020 under the Department of Envi-

ronmental Protection’s Hazardous Waste Manage-

ment Rules.

b. Arsenic Compound

The signs and symptoms of arsenic poisoning vary in

degree and timing depending on the form and amount

of arsenic and other factors. The major characteristics

of acute arsenic poisoning are profound gastrointestinal

damage and cardiac abnormalities. The signs include

excruciating abdominal pain, forceful vomiting, cramps

in the legs, restlessness and spasms. A feeble and irregu-

lar pulse and other symptoms of collapse, prostration,

stupor, convulsions, paralysis, collapse and death in

coma have been described. Environmental exposure to

arsenicals has been correlated with a high skin cancer

risk among populations exposed to sunlight, suggesting

interference with repair of DNA damage.

This substance is classified as EP Toxic Hazardous

Waste #D004 under the Department of Environmen-

tal Protection’s Hazardous Waste Management Rules.

c. Corrosive Liquid

A solution of this strength of acidity is comparable to

a 0.6% solution of hydrochioric acid (muriatic acid). It

is corrosive, dangerous to eyes and irritating to less

sensitive tissues.

This substance is classified as Hazardous Waste

#D002 due to corrosivity under the Department of

Environmental Protection’s Hazardous Waste Man-

agement Rules

32a

6. The substances described in Paragraph 5 have been desig-

nated as hazardous wastes by the Board of Environmental

Protection pursuant to 38 M.R.S.A., Section 1303-A. They

are, accordingly, hazardous substances within the meaning

of 38 M.R.S.A., Section 1361. These substances are being

or have been stored or disposed of at the site in such a

manner that they may be released or discharged into the

soil, groundwater or ambient air.

7. Vahlsing has violated 38 M.R.S.A., Section 1306, and

related Hazardous Waste Management Rules for operating

a waste facility without a permit issued by the Board.

In addition, Vahlsing has violated Hazardous Waste Man-

agement Rules relating to Standards for the Generators of

Hazardous Waste.

8. The structural integrity of the building is rapidly decreasing.

A portion of the roof has collapsed and other roof-support-

ing structures have become distorted from the stress. Falling

timbers have the potential of rupturing the containers and

releasing the hazardous substances. A majority of the con-

tainers of hazardous substances are located within a flooded

area of the potato house. Contact with this water decreases

the life expectancy of the containers. A release of hazardous

substance from either a ruptured or rusted container will

contaminate this water and any surface water or ground

water that it comes in contact with.

9. On December 1, 1983, a Letter of Warning was mailed

from this Department to F.H. Vahlsing, Jr., directing him

to properly remove the chemicals from the site. No reply

was received by this Department.

On January 17, 1984, a second Letter of Warning was

mailed to F.H. Vahlsing, Jr. and F.H. Vahlsing, Jr. signed

for the certified letter.

33a

On July 5, 1984, the Department mailed, by certified mail,

two letters to F.H. Vahlsing, Jr., at two different locations.

The letters explained the Department’s intention to declare

the site uncontrolled if plans for the site clean-up were not

received within 5 days of receipt of the notification. Both

letters were returned unclaimed.

BASED upon the above Findings of Fact, the Commissioner

concludes and finds that:

Vahlsing stores or has disposed of hazardous substances,

as defined in 38 M.R.S.A., Section 1362, at the site;

Vahlsing and the Bangor and Aroostook Railroad are re-

sponsible parties as defined in 38 M.R.S.A., Section 1362;

. Hazardous substances located at the site may create a danger

to public health or safety of persons or to the environment;

. Continued danger to public health or safety of any person

or to the environment exists as a result of the lack of security

at the site and the presence and condition of the hazardous

substances on the site.

. The actual or threatened releases of hazardous substances

from the site pose a threat or hazard to the public health,

safety and welfare and to the natural environment; and

Immediate action is necessary to abate the threat, danger

or hazard to public health, safety and the environment.

THEREFORE, pursuant to 38 M.R.S.A., Section 1365, the

Commissioner hereby Designates the Vahlsing site in Easton,

Maine as an Uncontrolled Hazardous Substance Site.

ORDER

Vahlsing, is hereby ordered and directed to:

1. Within five (5) days:

34a

A. Prepare a plan to properly remove all hazardous wastes,

contaminated soil and water from the site for transport

to and disposal at a licensed hazardous waste facility,

submit that plan to the DEP for its review and approval,

and implement that plan as approved by the DEP within

five (5) days of DEP approval.

2. Vahlsing shall comply immediate with this Order.

DONE AND DATED AT AUGUSTA, MAINE THIS 27th

DAY OF AUGUST, 1984.

DEPARTMENT OF ENVIRONMENTAL PROTECTION

By:

Henry E. Warren, Commissioner

RIGHTS OF REVIEW AND APPEAL

Vahlsing may apply to the Board of Environmental Protection

for a hearing on this Order. The hearing shall be held by the

Board within 3 days after receipt of the application. Within 7

days after the hearing, the Board shall make findings of fact

and continue, revoke or modify the Order. The decision by

the board may be appealed to Superior Court in accordance

with the Maine Administrative Procedure Act, 5 M.R.S.A.,

Section 11001, et seq.

35a

Appendix H

STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

STATE HOUSE STATION i7 AUGUSTA, MAINE 04333

BOARD ORDER

IN THE MATTER OF

F.H. VAHLSING, JR., AND

VAHLSING, INC. PRO- APPEAL OF DESIGNATION

CEEDING UNDER 38 OF UNCONTROLLED

M.R.S.A. § 1365, UNCON- HAZARDOUS SUBSTANCE

TROLLED HAZARDOUS SITE AND ORDER

SUBSTANCE SITES

JURISDICTION

This application for hearing on the Commissioner’s designation

of uncontrolled hazardous substance site and order dated August

27, 1984 (the “Order’”) is before the Board pursuant to 38

M.R.S.A. § 1365(4).

FINDINGS OF FACT

1. On August 27, 1984, the Commissioner designated a build-

ing in the Town of Easton as an uncontrolled hazardous substance

site. The building contained several hazardous wastes described

in the Order. The designation identified the building as “located

on land in Easton, Maine, owned by Bangor and Aroostook Rail-

road” and stated that the land was described “as being Lot 19

on Map 14. . . on file at the Assessor’s Office . . ..” (Order, § 2.)

2. The Order designated Fred H. Vahlsing, Jr. and Vahlsin,

Inc., among others, as responsible parties within the meaning of

38 M.R.S.A. § 1362.

36a

3. On August 31, 1984, F.H. Vahising, Jr. filed a request

for a hearing on the Order on behalf of Vahlsing, Inc. Mr.

Vahlsing requested that such a hearing be held not earlier than

November 5, 1984. In his request, Vahlsing argued that the

listing of responsible parties should be amended.

4. On December 19, 1984, the Board held the hearing re-

quested by Mr. Vahlsing on behalf of Vahlsing, Inc. Mr.

Vahlsing testified and submitted various exhibits. The staff of

the Department presented the testimony of Duncan Beaton,

Town Manager of the Town of Easton, William Houston, Vice

President and General Counsel of Bangor and Aroostook Rail-

road, and Gerald Rudman, counsel for McCain Foods, Inc.,

and also submitted several exhibits. The only issue raised at

the hearing was whether Vahlsing, Inc. was a responsible party.

5. Based on the evidence introduced at the hearing, the

Board finds and concludes as follows:

a. In 1971, Vahlsing, Inc. leased a portion of the

land designated as Lot #19 on tax map #14. All of

Lot #19 is owned by the Bangor and Aroostook Rail-

road, which has owned it since the 1930’s. The Ban-

gor and Aroostook Railroad has and does pay taxes

on this real property. The portion of Lot #19 leased

by Vahlsing, Inc. is identified on a Bangor and

Aroostook Railroad map and in the lease as Lots 50

through 57. In July, 1983, Bangor and Aroostook

Railroad deducted the rent due on this land from the

amount it paid Vahlsing, Inc. in connection with an

unrelated transaction. Mr. Vahlsing was informed

of this deduction and did not object to it at the time.

b. Pursuant to the lease, Vahising, Inc. placed a

building on the land described in paragraph 5(a)

above. F.H. Vahlsing, Jr. on behalf of Vahlsing,

Inc. has consistently paid taxes on this building.

37a

These tax payments include one as recently as Jan-

uary 6, 1984.

c. F.H. Vahlsing, Jr. went to the building described

in 5(b) above with Duncan Beaton, Town Manager

of the Town of Easton, in the fall of 1983. He told

Mr. Beaton that he would consider removing or sell-

ing the contents of that building and at all times

acted as if the building and materials within it were

his property.

d. The wastes stored in the building identified in

paragraph 5(b) are hazardous wastes. This building

is the building that is the subject of the Order.

e. Mr. Vahlsing’s testimony with respect to the exis-

tence and ownership of the building was not credible.

Mr. Vahlsing first asserted that there was no building

on Map #14, Lot #19 and proffered an exhibit pur-

portedly signed by a registered surveyor certifying

that. However, this exhibit showed only a portion

of Lot #19, excluding the portion of Lot #19 on

— which the building that is the subject of the Order

is located. Mr. Vahlsing then attempted to suggest

that a building had been located on Lot #19 but had

burned down. Finally, Mr. Vahlsing testified that

the building was the property of McCain Foods,

notwithstanding the testimony of Mr. Gerald Rud-

man, counsel for McCain Foods, that when McCain

purchased various properties from Vahlsing, Inc.,

the transaction expressly excluded any real property

belonging to the Bangor and Aroostook Railroad,

and that Mr. Rudman understood that that exclusion

included buildings.

Based upon the above findings of fact, the Board finds and

concludes that Vahlsing, Inc., the only party seeking a hearing

38a

on the Order, is a responsible party within the meaning of 38

M.R.S.A. § 1362, and that the Order properly identifies the

building in question.

Therefore, pursuant to 38 M.R.S.A. § 1365, the Board

affirms the Commissioner’s designation of uncontrolled

hazardous site and continues the order issued pursuant to that

designation.

Done and dated in Augusta, Maine this 19th day of Decem-

ber, 1984.

BOARD OF ENVIRONMENTAL

PROTECTION

By:

Samuel Zaitlin, Chairman

39a

Appendix I

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CRIMINAL ACTION

DOCKET NO. 85-128

State of Maine Indictment for Violation of

v. 17-A M.R.S.A. § 451

Fred H. Vahlsing, Jr., (Perjury), Class C

The Grand Jury charges:

On or about December 19, 1984, in the County of Kennebec,

State of Maine, Fred H. Vahlsing, Jr., did, in an official pro-

ceeding, namely a hearing before the State of Maine Board of

Environmental Protection on an administrative order (hereafter

the “Order” — a copy of which is attached hereto and incor-

porated herein by reference), issued by Henry E. Warren,

Commissioner of Environmental Protection, and dated August

27, 1984, make false statements under oath, namely:

(1) that there then was no building on land in Easton,

Maine, the land and building being described in para-

graph 2 of the Order as the site containing waste pesti-

cides and other hazardous wastes;

(2) that the building identified in the Order as con-

taining waste pesticides and other hazardous wastes

wasw not owned by Vahlsing, Inc.; and

(3) that the building identified in the Order as con-

taining waste pesticides and other hazardous wastes

had been sold by Vahlsing, Inc. to McCain Foods,

Inc. in 1976,

the said Fred H. Vahlsing, Jr. not believing the statements to

be true and the said statements being material because, if

believed by the Board, the Board would have been likely to

find that, contrary to the Commissioner’s conclusion and find-

40a

ing on page 3 of the Order, Vahlsing, Inc. was not a responsible

party within the meaning of 38 M.R.S.A. § 1362(2) and hence

was not subject to enforcement orders or liable for costs incurred

by the State in abating any environmental hazards posed by

the site as describec in the Order, all in violation of 17-A

M.R.S.A. § 451 (1) (A) (1983).

A True Bill

Foreman

Dated: 3/5/85

4la

Appendix J

STATE OF MAINE

Superior Court

AROOSTOOK, ss. Civil Action Docket #85-16

F.H. VAHLSING, JR.

Plaintiff

VS. ORDER

STATE OF MAINE B.E.P.

Defendant

This case is a Rule 80C Appeal from final State of Maine

Board of Environmental Protection action, taken under the

Uncontrolled Hazardous Substances Sites Act (38 MRSA

§ 1361-1370).

After investigation the Defendant determined that the Plain-

tiff was in violation of the Act and ordered him to cease or

prevent that activity. The Corporate Plaintiff was served with

the order, the individual was not. In this administrative order,

the corporation and individual were considered together, that

is to quote from the order: “F.H. Vahlsing, Jr., and Vahlsing,

Inc. are hereinafter referred to as ‘Vahlsing’.”

The corporation, after service, demanded and received a

hearing before the Defendant, after which the Defendant issued

a decision with findings of fact and conclusions holding the

Corporate Plaintiff was a “responsible party” under the Act,

finding that the Corporation was the only party seeking a

hearing on the administrative order. However, the caption of

the decision named the individual Plaintiff, and the decision

states “Therefore, pursuant to 383MRSA § 1365, the Board

42a

affirms the Commissioner’s designation of uncontrolled

hazardous site and continues the order issued pursuant to that

designation.

The individual Plaintiff appealed the decision on the grounds

he was never served pursuant to Section 1365(3). The Defend-

ant admits no service was made on him and suggests he had

actual knowledge and waived service in appearing at the hear-

ing or, in the alternative, has no standing to appeal.

The transcript of the evidence at the hearing makes clear he

appeared as President of the Plaintiff Corporation and not

individually. See pp. 1, 8, 9, 19, 13.

A fair reading of the administrative order and the decision

together shows that the individual Plaintiff’s interest could be

affected. He could be subject to an action to compel under

Section 1365(5), and, therefore, has standing to bring a Rule

80C appeal. He is, after all, a named party, and his standing

to appeal rests upon something more than a mere particularized

injury. Matter of Lappie, 377 A.2d 441 (Me. 1977); 5 MRSA

§ 8001 (6) (A).

Wherefore, ordered

(1) Appeal sustained.

(2) The decision of Defendant of August 17, 1984 is re-

versed with respect to F.H. Vahlsing, Jr.

May 2, 1986

Date Hon. Herbert Silsby, Justice

Superior Court

43a

Appendix K

STATE OF MAINE SUPERIOR COURT

AROOSTOOK, ss. Civil Action,

Docket No. CV-85-17

VAHLSING, INC.

Plaintiff

Vv.

STATE OF MAINE BOARD ORDER

OF ENVIRONMENTAL

PROTECTION

Defendant

On May 9, 1986, the court gave counsel until May 27, 1986

to file briefs on the question of which party had the burden of

proof. The court also found that there was sufficient evidence

Supporting the BEP decision. The finding was based upon the

assumption the defendant had the burden of proof, but not

made clear in the order of May 9, 1986.

The court has not found, nor have counsel pointed out any

Statute or rule or decision setting forth the land owner or

operator (Responsible Party, § 1362(2)) has the burden of

proof under the Hazardous Sites statutes.

The burden of proof is of fundamental importance and unless

the legislature has otherwise provided the party or agency

making an assertion has the burden of proving it. It was error

of law to place the burden on Vahlsing, Inc.

44a

The Hazardous Substance Sites Act provides for some four

steps for enforcement. First the commissioner may investigate

and determine and order a responsible party to cease or prevent

a hazardous activity. Section 1365(1). From this order the

alleged responsible party may appeal to the board. Next the

Attorney General may file suit for injunctive relief to abate,

clean up, or mitigage the hazard. Section 1365 (4) (5). And

lastly the Attorney General may sue for any clean up costs

and the statute clearly provides the state has the burden of

proof that a defendant is a responsible party. The responsible

party has several affirmative defenses. Section 1367.

The statutory scheme therefore contemplates the state has

the burden of proof. It does not make sense that the state has

the burden of proof at one step and not the others, and it is

thereby also clear the legislature had the burden of proof in

mind. The legislative intent it follows must be inferred that

the state has the burden of proof at all steps in the process of

enforcement. If the legislature intended otherwise they could

easily have said so.

Wherefore, order

Appeal sustained. Decision of the board vacated, and re-

manded to the commission for new hearing in accordance

with this order.

Dated: June 4, 1986

Herbet T. Silsby II

Justice, Superior Court

45a

Appendix L

STATE OF MAINE

SUPERIOR COURT JUDGMENT AND COMMITMENT

Docket No. County Date D.O.B.

CR-85-652 Penobscot December 18, 1986 8/23/26

Defendant's Name Residence

State of Maine v. Fred H. Vahising, Jr. 1119 Ave. E, McAllen, Texas 78501

Offenses charged: Offenses convicted: Charged by:

indictment

— information

— complaint

PERJURY (CLASS C) PERJURY (CLASS C) Convicted on

— plea of guilty

— plea of Nolo

jury verdict

Plea Not Guilty — court finding

IT IS ADJUDGED THAT THE DEFENDANT IS GUILTY OF THE OFFENSES AS SHOWN

ABOVE AND CONVICTED.

IT IS ADJUDGED THAT THE DEFENDANT BE HEREBY COMMITTED TO THE

SHERIFF OF THE WITHIN NAMED COUNTY OR HIS AUTHORIZED REPRE-

SENTATIVE WHO SHALL WITHOUT NEEDLESS DELAY REMOVE THE DEFEND-

ANT TO:

The custody of the Commissioner of the Department of Corrections, at a facility desig-

nated by him, to be punished by imprisonment for a term of: .

pa One Year __

(_} The County Jail to be punished by imprisonment for a term of

Execution stayed to PENDING APPEAL

[} ITISORDERED THAT THE DEFENDANT FORFEIT AND PAY THE SUM OF

DOLLARS TO THE CLERK OF COURTS IN THE ABOVE NAMED COUNTY

(_) Execution stayed to

{.} ITISORDERED THAT THE DEFENDANT FORFEIT AND PAY THE SUM OF

_______ DOLLARS AS RESTITUTION, THROUGH THE DIVISION OF PROBATION

AND PAROLE.

{_] Execution stayed to

(.) ITISORDERED THAT EXECUTION OF THE FOREGOING SENTENCE AND COM-

MITMENT (AS IT RELATES TO CONFINEMENT) (AS IT RELATES TO A FINE) BE

SUSPENDED AND THE DEFENDANT BE COMMITTED TO THE CUSTODY AND

CONTROL OF THE DIVISION OF PROBATION AND PAROLE FOR A TERM OF

UPON CONDITIONS ATTACHED HERETO AND INCORPORATED BY

REFERENCE HEREIN.

46a

ITISORDERED THAT ALLBUT Sixty Days OF THE FOREGOING SENTENCE

BE SUSPENDED. THE DEFENDANT SHALL SERVE THE INITIAL PORTION OF

THE FOREGOING SENTENCE AT Penobscot County Jail

[] ITISORDERED THAT PURSUANT TO 17-A M.R.S.A. § 1201 THE DEFENDANT

BE UNCONDITIONALLY DISCHARGED.

FOR REASONS FOR IMPOSING CONSEC UTIVE SENTENC ES SEE COURT

RECORD OR ATTACHMENT.

Justice Superior Court

IT IS FURTHER ORDERED THAT THE CLERK DELIVER A CERTIFIED COPY OF

THIS JUDGMENT AND COMMITMENT TO THE SHERIFF OF THE ABOVE NAMED

COUNTY OR HIS AUTHORIZED REPRESENTATIVE AND THAT THE COPY SERVE

AS THE COMMITMENT OF THE DEFENDANT.

A true copy. Attest:

Clerk of Courts Justice Superior Court

CR-1 Rev. 1/85

47a

Appendix M

STATE OF MAINE Superior Court

PENOBSCOT, ss. Criminal Action

Docket No. 85-CR-652

STATE OF MAINE

Plaintiff

V. MOTION FOR STAY

Frederick H. Vahlsing, Jr.,

Defendant

NOW COMES the Defendant, by and through his attorney,

and states as follows:

|. Defendant was convicted of perjury on September 30, 1986.

2. By order dated December 18, 1986, he was sentenced to

a term of imprisonment of one year, all but 60 days suspended.

3. By the same order, the execution was stayed pending ap-

peal.

4. That on April 12, 1988, the Maine Supreme Judicial Court

affirmed the decision of the Superior Court .

5. That as of this date the undersigned has not received the

official copy of the Maine Supreme Judicial Court’s decision,

but does understand it to have affirmed the finding of the Superior

Court.

6. That the defendant will be appealing to the United States

Supreme Court within the time periods prescribed by law.

48a

7. That to force the defendant to appear and serve his sentence

would make the appeal to the Supreme Court moot and would

impose undue hardship on the defendant.

8. That this court has the authority to stay execution of sen-

tence pending appeal.

WHEREFORE, defendant prays that execution be further

stayed pending appeal to the United States Supreme Court.

DATED: April 12, 1989

Bernard G. O’Mara, Esq.

Main Street, P.O. Box 336

Easton, Maine 04740

49a

Appendix N

17-A M.R.S.A. § 451 (Perjury):

1. A person is guilty of perjury if he makes:

A. In any official proceeding, a false material statement under

oath or affirmation, or swears or affirms the truth of a material

statement previously made, and he does not believe the state-

ment to be true; or

B. Inconsistent material statements, in the same official pro-

ceeding, under oath or affirmation, both within the period of

limitations, one of which statements is false and not believed

by him to be true.

2. Whether a statement is material is a question of law to be

determined by the court. In a prosecution under subsection 1,

paragraph B, it need not be alleged or proved which of the

Statements is false but only that one or the other was false and

not believed by the defendant to be true.

3. It is an affirmative defense to prosecution under this section

that the defendant retracted the falsification in the course of the

official proceeding in which it was made, and before it became

manifest that the falsification was or would have been exposed.

3-A. In a prosecution under subsection 1, paragraph A, evi-

dence that the allegedly false testimony in the prior official pro-

ceeding was contradicted by evidence in that proceeding may

not be a sufficient basis by itself to sustain a conviction for perjury.

4. It is not a defense to prosecution under this section that

the oath or affirmation was administered or taken in an irregular

manner or that the declarant was not a competent witness in

making the statement or was disqualified from doing so. A docu-

ment purporting to be made upon oath or affirmation at

50a

any time when the actor presents it as being so verified shall be

deemed to have been duly sworn or affirmed.

5. As used in this section:

A. “Official proceeding” means any proceeding before a legis-

lative, judicial, administrative or other governmental body or

official authorized by law to take evidence under oath or affir-

mation including a notary or other person taking evidence in

connection with any such proceeding;

B. “Material” means capable of affecting the course or out-

come of the proceeding.

6. Perjury is a Class C crime.

Sla

Appendix O

Chapter 13-B, Uncontrolled Hazardous Substance Sites, was

enacted by 1983, c. 569, § 1, effective July 1, 1983.

§ 1361. Findings and purpose

The Legislature finds and declares that uncontrolled hazardous

substance sites within the jurisdiction of the State present a hazard

to all the people of the State and that hazard poses a threat or

potential threat to the public health, safety or welfare, to the

environment of the State and to owners and users of property

near or adjacent to uncontrolled sites.

The Legislature further finds that adequate measures must be

taken to ensure that the threats posed by uncontrolled hazardous

sites are abated, cleaned up or mitigated promptly.

The Legislature further finds that it is in the public interest of

the State and its citizens to provide the capacity for prompt and

effective planning and implementation of plans to abate, clean

up Or mitigate threats posed or potentially posed by uncontrolled

sites. This paramount state interest outweighs any burden,

economic or otherwise, imposed by this chapter.

1983, c. 569, § 1, eff. July 1, 1983.

§ 1362. Definitions

As used in this chapter, unless the context indicates otherwise,

the following terms have the following meanings.

1. Hazardous substance. ‘Hazardous substance” means:

A. Any substance identified by the board under section

1319-0;

B. Any substance identified by the board under section

1319;

52a

C. Any substance designated pursuant to the United

States Comprehensive Environmental Response, Compensa-

tion and Liability Act of 1980, Public Law 96-510, Sections

101 and 102' (Superfund);

D. Any toxic pollutant listed under the United States

Federal Water Pollution Control Act, Section 307(a);’

E. Any hazardous air pollutant listed under the United

States Clean Air Act, Section 112;°

F. Any imminently hazardous chemical substance or

mixture with respect to which the Administrator of the

United States Environmental Protection Agency has taken

action pursuant to the United States Toxic Substances Con-

trol Act, Section 7;* and

G. Waste oil as defined in section 1303.

2. Responsible party. “Responsible party” means any one

or more of the following persons:

A. The owner or operator of the uncontrolled site;

B. Any person who owned or operated the uncontrolled

site from the time any hazardous substance arrived there;

C. Any person who arranged for the transport or handling

of a hazardous substance, provided that the substance arrived

at the uncontrolled site; and

D. Any person who accepted a hazardous substance for

transport, provided that the substance arrived at the uncon-

trolled site.

3. Uncontrolled hazardous substance site. “Uncon-

trolled hazardous substance site” or “uncontrolled site’’ means

42 U.S.C.A. §8§ 9601 and 9602.

>33 U.S.C.A. § 1317(a).

‘42 U.S.C.A. pony

*15 U.S.C.A. § 266

53a

an area or location whether or not licensed, at which hazardous

substances are or were handled or otherwise came to be located,

if it is concluded by the commissioner that the site poses a

threat or hazard to the health, safety or welfare of any person

or to the natural environment and that action under this chapter

is necessary to abate, clean up or mitigate that threat or hazard.

The term includes all contiguous land under the same owner-

ship or control and includes without limitation all structures,

appurtenances, improvements, equipment, machinery, con-

tainers, tanks and conveyances on the site.

1983, c. 569, § 1, eff. July 1, 1983; 1985, c. 746, § 32: 1987,

c. 517, § 29, eff. June 29, 1987.

§ 1363. Prohibited acts

No person may handle hazardous substances at an uncon-

trolled hazardous substance site in violation of any order issued

under this chapter.

1983, c. 569, § 1, eff. July 1, 1983.

54a

§ 1367. Liability; recovery by the State for abatement,

clean up or mitigation costs and for damages

Each responsible party is jointly and severally liable for all

costs incurred by the State for the abatement, clean up or

mitigation of the threats or hazards posed or potentially posed

by an uncontrolled site and for damages for injury to, destruc-

tion of or loss of natural resources of the State resulting from

hazardous substances at the site or from the acts or omissions

of a responsible party with respect to those hazardous sub-

stances. The commissioner shall demand reimbursement of

costs and payment of damages to be recovered under this

section and payment shall be made promptly by the responsible

party or parties upon whom the demand is made. If payment

is not received by the State within 30 days of the demand, the

Attorney Genera! may file suit in the Superior Court and, in

addition to relief provided by other law, may seek punitive

damages. Notwithstanding the time limits stated in this para-

graph, neither a demand nor other recovery efforts against one

responsible party may relieve any other responsible party of

liability.

In any suit filed under this section, the State need not prove

negligence in any form or matter by a defendant. The State

need only prove that a defendant is a responsible party, as

defined in section 1362, and the site poses or posed or poten-

tially poses or posed a threat or hazard to the health, safety

or welfare of any citizen of the State or the environment of

the State, to which the acts or omissions of the defendant are

or were causally related.

A person who would otherwise be a responsible party shall

not be subject to liability under this section, if he can establish

by a preponderance of the evidence that threats or hazards

posed or potentially posed by an uncontrolled site, for which

threats or hazards he would otherwise be responsible, were

caused solely by:

5Sa

1. Act of God. An act of God;

2. Act of war. An act of war;

3. Act or omission. An act or omission of a 3rd party who

is not his employee or agent. A person seeking relief from

liability for the acts or omissions of. a 3rd party shall also

demonstrate by a preponderance of the evidence that he exer-

cised due care with respect to the hazardous substance and

uncontrolled site concerned, taking into consideration the

characteristics of that substance and site, in light of all relevant

facts and circumstances and that he took precautions against

foreseeable acts or omissions of any such 3rd party and the

consequences that could foreseeatly result from such acts or

omissions; or

4. Combination. Any combination of the foregoing sub-

sections.

Funds recovered under this section shall be deposited into

the Uncontrolled Sites Fund and shall be used by the department

to carry out the purposes of this chapter.

1983, c. 569, § 1, eff. July 1, 4983; 1987, c. 192, § 31.

56a

Appendix P

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss: Bangor, Maine

Docket No. CR-85-652

STATE OF MAINE ADDITIONAL MEMORAN-

DUM #2 SUPPLEMENTING

v. MEMORANDUM IN SUP-

PORT OF MOTION FOR

FRED. H. VAHLSING, JR. ACQUITTAL previously filed

The trial of Fred H. Vahlsing, Jr. commenced on September

2, 1986 in the Penobscot County Superior Court before the

Honorable Judge J. Smith.

During the trial, the Honorable Judge J. Smith ruled posi-

tively on the materiality of the statement allegedly made by

Fred H. Vahlsing, Jr. at the Board of Environmental Protection

Hearing on December 19, 1984, to wit:

“(3) that the building identified in the Order as con-

taining waste pesticides and other hazardous wastes

had been sold by Vahlsing, Inc. to McCain Foods,

Inc. in 1976”

The Court had previously dismissed in connection with the

Indictment the other two statements of the Indictment, to wit:

(1) that there then was no building on land in Easton,

Maine, the land and building being described in para-

graph 2 of the Order as the site containing waste

pesticides and other hazardous wastes;

57a

(2) that the building identified in the Order as contain-

ing waste pesticides and other hazardous wastes was

not owned by Vahising, Inc.;”

Hence, the only statement remaining allegedly made by Fred

H. Vahlsing, Jr. relative to the Indictment alleging perjury by

Fred H. Vahlsing, Jr. was:

(3) that the building identified in the Order as con-

taining waste pesticides and other hazardous wastes

had been sold by Vahlsing, Inc. to McCain Foods,

Inc. in 1976”

In connection with the statement remaining as outlined above

(hereinafter referred to as “THE STATEMENT” ) the material-

ity of such statement was, in fact, a nullity and of no effect

on the Board of Environmental Protection Hearing for the

following specific reasons:

(a) The Board of Environmental Protection Hearing was

declared by the Honorable Herbert T. Silsby II to be of no

consequence or effect due to the fact that contrary of the Laws

of the State of Maine the Board of Environmental Protection

had placed the burden of proof upon Vahlsing, Inc., a corpo-

ration organized and existing under the Laws of the State of

Delaware and licensed to do business in the State of Maine.

The Honorable Judge Herbert T. Silsby II specifically found

in the Superior Court of Maine that the placing of the burden

of proof upon Vahlsing, Inc. was not in accordance with the

Laws of the State of Maine. Accordingly, such Board of Envi-

58a

ronmental Protection Hearing was of no consecuence or effect

upon Vahlsing, Inc. THE STATEMENT allegedly made by

F. H. Vahlsing, Jr., representing Vahlsing, Inc., in view of the

Honorable Herbert T. Silsby II’s ruling, was not “capable of

affecting the course or outcome of the proceeding” and thus was

not material to the subject hearing. (See Judge Herbert T.

Silsby II’s Order dated June 4, 1986, which was marked and -

accepted as evidence in the trial, attached hereto as Exhibit A.)

(b) In addition, notwithstanding the erroneous title ascribed

to the Hearing of December 19, 1984 transcript marked as an

exhibit and entered into evidence at the trial (See first page of

such transcript attached as Exhibit B.), Fred H. Vahlsing, Jr.

was not a part of such Hearing and thus had no liability in

any manner whatsoever in connection with such Hearing. (See

order of the Honorable Judge Herbert T. Silsby II dated May

2, 1986 attached hereto as Exhibit C. Such Order was marked

by Defendant, but not allowed into evidence by the Court as

being immaterial.) In connection with Judge Silsby’s Order

relative to Fred H. Vahlsing, Jr., Fred H. Vahlsing, Jr. was

not served in the matter of the Board of Environmental Protec-

tion and thus stood void of any obligation or liability relative

to any findings in connection with such Hearing. Any statement

made by anyone was totally immaterial as to Fred H. Vahlsing,

Jr.’s obligations and/or responsibilities in connection with such

Hearing. Thus, both Fred H. Vahlsing, Jr. and Vahlsing, Inc.

could in no way be affected by any statements at such Hearing

and thus all statements were immaterial to any findings by the

official body at such hearing on December 19, 1984.

position brief in Civil Action No. CV-85-17 dated November

15, 1985, filed by Mr. James T. Kilbreth, attorney for the

Department of Environmental Protection, which position brief

(hereinafter referred to as “THE BRIEF’ ) contains the follow-

ing position and we herewith quote:

59a

“Finally, neither retroactivity nor ex post facto problems

exist with the Uncontrolled Hazardous Substance Site Law.

That law is modeled on the federal superfund statute. CERCLA,

42 U.S.C. § 9601, et seq. In cases brought under that statute,

courts have uniformly rejected due process, retroactivity, and

ex post facto challenges. See, e.g., State of New York v. Shore

Realty Corp., 759 F.2d 1032, 1042-45 (2d Cir. 1985); J.V.

Peters & Co. v. Ruckelshaus, 584 F.Supp. 1005, 1010-11

(N.D. Ohio, 1984); United States v. Price, 577 F.Supp. 1103,

1112 (D. N.J., 1983).

CONCLUSION

For the foregoing reasons, respondent respectfully

requests that the petition be denied and the decision

of the Board of Environmental Protection affirmed.

DATED: NOVEMBER 15, 1985 Respectfully submitted,

JAMES T. KILBRETH

Assistant Attorney General

State House Station #6

Augusta, Maine 04333

Tel. (207) 289-3051

Attorney for Respondent”

60a

During the trial which commenced on September 2, 1986,

there was unrefuted evidence that Vahlsing, Inc. owned the

potato storage since at least 1961 up and to September 1, 1976

(September 1, 1976 termination of ownership being Defend-

ant’s position) and thus in considering it was the position of

the State of Maine in the civil matter Docket No. CV-85-17

that “neither retroactivity nor ex post facto problems exist with

the Uncontrolled Hazardous Substance Site Law”, THE STATE-

MENT is totally immaterial and irrelevant since Vahlsing, Inc.

had owned the building for at least fifteen (15) years prior to

September |, 1976, making THE STATEMENT totally imma-

terial as to the State’s position in the Indictment that “if believed

by the Board, the Board would have been likely to find that,

contrary to the Commissioner’s conclusion and finding on page

3 of the Order, Vahlsing, Inc. was not a responsible party

within the meaning of 38 M.R.S.A. § 1362(2) and hence was

not subject to enforcement orders or liable for costs incurred

by the State in abating any environmental hazards posed by

the site as described in the Order, all in violation of 17-A

M.R.S.A. § 451(1) (A) (1983)” in view of the State of Maine’s

position that “neither retroactivity nor ex post facto problems

exist with the Uncontrolled Hazardous Substance Site Law.”

Since the building had already been owned by Vahlsing, Inc.

for fifteen years, what materiality could possibly be established

in connection with a sale of the building by Vahlsing, Inc. to

McCain Foods, Inc. in 1976? Thus, in view of such facts,

THE STATEMENT could not have absolved Vahlsing, Inc.

from liability as set forth by Mr. Kilbreth in THE BRIEF and

thus was immaterial.

6la

(a) During the trial, it was unrefuted that Vahlsing, Inc.

filed bankruptcy on July 14, 1974 and was discharged from

bankruptcy on August 1, 1979. (See Order Granting General

Stay Order dated July 15, 1974 and Notice of Order of Con-

firmation of Plan and Discharge dated August 1, 1979, both

documents marked as exhibits and admitted as evidence in the

trial, attached hereto as Exhibits D & E, respectively.)

THE STATEMENT allegedly made by Fred H. Vahlsing,

Jr., President of Vahlsing, Inc., as outlined above, referenced

a sale to McCain Foods, Inc. by Vahlsing, Inc. to have occurred

in 1976, which year Vahlsing, Inc. was in bankruptcy and

under the specific jurisdiction and control of the United States

District Court for the Southern District of Texas. Pursuant to

the United States Supreme Court Decision entitled: Ohio v.

Kovacs, dba B & W Enterprises et al., Certiorari to the United

States Court of Appeals for the Sixth Circuit, No. 83-1020.

Argued October 10, 1984 — Decided January 9, 1985, which

Decision was handed down by the Supreme Court of the United

States, Washington, D.C., (See United States Supreme Court

Decision dated January 9, 1985 in connection with Ohio v.

Kovacs attached as Exhibit F.), Vahlsing, Inc. had no obliga-

tion whatsoever for any acts (or non-acts) of Vahlsing, Inc.

during the year 1976 relative to the Department of Environmen-

tal Protection of the State of Maine which occurred during the

pendency of the bankruptcy of Vahlsing, Inc. and/or before

the pendency of the bankruptcy of Vahlsing, Inc. As of the

date of discharge of Vahlsing, Inc. from bankruptcy on August

1, 1979, pursuant to Section 367 and Section 173 of the Bank-

rupicy Act, and we herewith quote:

“SEC. 367. Upon confirmaticn of an arrangement—

(1) the arrangement and its provisions shall be binding

62a

upon the debtor, upon any person issuing securities

or acquiring property under the arrangement and

upon all creditors of the debtor, whether or not they

are affected by the arrangement or have accepted it

or have filed their claims, and whether or not their

claims have been scheduled or allowed and are allow-

able; ...

SEC. 371. The confirmation of an arrangement shall

discharge a debtor from all his unsecured debts and

liabilities provided for by the arrangement, except

as provided in the arrangement or the order, confirm-

ing the arrangement, but excluding such debts as,

under section 17 of this Act, are not dischargeable.””

Vahlsing, Inc. became relieved and insulated from any liability

to the Department of Environmental Protection of the State of

Maine for any acts (or non-acts) of Vahlsing, Inc. which oc-

curred prior to and during the pendency of the bankruptcy of

Vahlsing, Inc. from July 14, 1974 through August 1, 1979.

In Ohio v. Kovacs, the Supreme Court of the United States

of America specifically decided that upon confirmation and

discharge a debtor as discharged from liability under environ-

mental laws. Such Decision specifically applied to Vahlsing,

Inc. in that Vahlsing, Inc. was discharged from any liability

as of August |, 1979 (date of confirmation and discharge from

bankruptcy) in connection with claims of the Department of

Environmental Protection of the State of Maine. According to

THE BRIEF (by Mr. Kilbreth, as outlined above) the liability

of Vahlsing, Inc. originated with the ownership by Vahlsing,

Inc. of the “building” when the chemicals were first stored in

such “building” in 1970 as set forth in the unrefuted evidence

in the trial. Thus, in view of Ohio v. Kovacs, THE STATEMENT

allegedly made by F.H. Vahlsing, Jr. relative to a sale of the

“building” in 1976 to McCain Foods, Inc. was totally immate-

rial and of no consequence as to what the Board would find.

63a

THE STATEMENT allegedly made by Fred H. Vahlsing,

Jr. relative to a sale of personal property . . . “the building”

. . . by Vahlsing, Inc. to McCain Foods, Inc. at the Board of

Environmental Protection Hearing on December 19, 1984 was

an absolute nullity and had no materiality whatsoever by law.

THE STATEMENT could not in any manner, shape or form

have affected by law the decision of the Board of Environmental

Protection in view of the United States Supreme Court Decision

in Ohio v. Kovacs (Exhibit F).

(b) In connection with the Indictment, and we herewith

quote:

“The Grand Jury charges:

On or about December 19, 1984, in the County

of Kennebec, State of Maine, Fred H. Vahlsing, Jr.,

did, in an official proceeding, namely a hearing be-

fore the State of Maine Board of Environmental Pro-

tection on an administrative order (hereinafter the

“Order” — a copy of which is attached hereto and

incorporated herein by reference), issued by Henry

E. Warren, Commissioner of Environmental Protec-

tion, and dated August 27, 1984, make false state-

ments under oath, namely:

(1) that there then was no building on land in

Easton, Maine, the land and building being de-

scribed in paragraph 2 of the Order as the site

containing waste pesticides and other hazardous

wastes;

(2) that the building identified in the Order as

containing waste pesticides and other hazardous

wastes was not owned by Vahlsing, Inc.; and

(3) that the building identified in the Order as

containing waste pesticides and other hazardous

wastes had been sold by Vahlsing, Inc. to Mc-

Cain Foods, Inc. in 1976,

64a

the said Fred H. Vahlsing, Jr. not believing the state-

ments to be true and the said statements being mate-

rial because, if believed by the Board, the Board

would have been likely to find that, contrary to the

Commissioner’s conclusion and finding upon page

3 of the Order, Vahlsing, Inc. was not a responsible

party within the meaning of 38 M.R.S.A. § 1362(2)

and hence was not subject to enforcement orders or

liable for costs incurred by the State in abating any

environmental hazards posed by the site as described

in the Order, all in violation of 17-A M.R.S.A.

§ 451(1) (A) (1983). (Underlining added for em-

phasis. )

A True Bill

Foreman

Dated: _ =

The Indictment, as charged by the Grand Jury, alleged that

if THE STATEMENT was believed by the Board, the Board

would have been likely to find that, contrary to the Commis-

sioner’s conclusion and finding upon page 3 of the Order,

Vahlsing, Inc. was not a responsible party within the meaning

of 38 M.R.S.A. § 1362(2) and hence was not subject to enforce-

ment orders or liable for costs incurred by the State in abating

any environmental hazards posed by the site as described in

the Order, all in violation of 17-A M.R.S.A. § 451(1) (A)

(1983). The presumptive charges of the Indictment fail by law

as set forth by the Supreme Court of the United States of

America in its Decision in Ohio v. Kovacs.

THE STATEMENT relative to an act of Vahlsing, Inc.

which occurred in 1976 during the pendency of the Vahlsing,

65a

Inc. bankruptcy while Vahlsing, Inc., its assets and actions,

were specifically under the direct control of the United States

District Court for the Southern District of Texas, pursuant to

Ohio v. Kovacs, was an absolute nullity and could have no

affect on the decision of the Board by law. THE STATEMENT

relative to an act by Vahlsing, Inc. in 1976 did not have any

materiality whatsoever in connection with, as charged by the

Indictment, that “if believed by the Board, the Board would

have been likely to find that, contrary to the Commissioners’s

conclusion and finding upon page 3 of the Order, Vahlsing,

Inc. was not a responsible party within the meaning of 38

M.R.S.A. § 1362(2) and hence was not subject to enforcement

orders or liable for costs incurred by the State in abating any

environmental hazards posed by the site as described in the

Order, all in violation of 17-A M.R.S.A. § 451(1) (A) (1983)”

as outlined in the charges of the Indictment.

In effect, if the Board were to act in accordance with the

Law of this land, the United States of America, it would not

have mattered what the Board heard relative to any statement

of Fred H. Vahlsing, Jr., Vahlsing, Inc. or anyone else relative

to the year 1976 in connection with any act of Vahlsing, Inc.

as the Board by /aw could not base any materiality to a statement

concerning an act of Vahlsing, Inc. in the year 1976 as such

statement was a nullity and of no consequence by law based

upon the United States Supreme Court Decision in Ohio vs.

Kovacs.

According to Maine Law “A false statement given under

oath generally may be punished as perjury if and only if it was

material to an issue or point of inquiry in the proceeding in

which it was made. . .”. (Underlining emphasis added.) THE

STATEMENT allegedly made by Fred H. Vahlsing, Jr. was

certainly not material in connection with the Board of Environ-

mental Protection Hearing of December 19, 1984. THE STATE-

MENT was, in fact, a nullity and by law could have had no affect

—————

66a

upon any findings relative to actions of Vahlsing, Inc. for the

year 1976 pursuant to the Decision of the United States Su-

preme Court in Ohio vs. Kovacs.

Accordingly, Fred H. Vahlsing, Jr. is entitled to an acquittal

by law based upon a Decision of the United States Supreme

Court on the factor of materiality since Vahlsing, Inc. was

discharged from bankruptcy on August 1, 1979 and thus re-

lieved from any obligations under the Department of Environ-

mental Protection Laws of the State of Maine as of August |,

1979 pursuant to Ohio vs. Kovacs regardless of whether the

subject building was sold by Vahlsing, Inc. to McCain Foods,

Inc. or not. Pursuant to Ohio vs. Kovacs THE STATEMENT

referencing action of Vahlsing, Inc. in the year 1976 had no

materiality by law. Since THE STATEMENT was not material

by law, an acquittal of Fred H. Vahlsing, Jr. should be granted.

Respectfully submitted,

Fred H. Vahlsing, Jr.

Defendant, Pro Se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.