Supplemental Brief — Vahlsing v. Maine

No. 88-2127.

IN THE

Supreme Court of the Anited States.

OCTOBER TERM, 1988.

FRED H. VAHLSING, JR.,

Petitioner,

V.

THE STATE OF MAINE,

Respondent.

MEMORANDUM OF FACTS

SUPPORTING MOTION FOR RECONSIDERATION.

F.H. VAHLSING, JR., PROSE,

1119 South E. Street,

McAllen, Texas 78501.

(512) 686-8581

BATEMAN & SLADE. INC

BOSTON, MASSACHUSETTS

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Memorandum

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Table of Contents.

Memorandum of Facts Supporting Motion for Recon-

sideration filed by Fred H. Vahlsing, Jr., on August

17, 1989 with attached exhibits

Supplemental Memorandum of Facts filed by Fred H.

Vahlsing, Jr. with attached exhibits

13

iV

No. 88-2127.

IN THE

Supreme Court of the GQnited States.

OCTOBER TERM, 1988.

FRED H. VAHLSING, JR.,

Petitioner,

V.

THE STATE OF MAINE,

Respondent.

Memorandum of Facts Supporting

Motion for Reconsideration Filed By

Fred H. Vahlising, Jr. on August 17, 1989.

ATTN: Justice Byron R. White and/or any other Justices as

the Court deems appropriate:

NOW COMES, F. H. Vahlsing, Jr., Petitioner, pro se, and

" Says:

1. As pointed out in F. H. Vahlsing, Jr.’s Motion for Recon-

sideration, received by the Supreme Court of the United States

on Thursday, August 17, 1989 at 2:50 p.m., F. H. Vahlsing,

Jr. is requesting reconsideration ot this Court’s denial (by the

Honorable William J. Brennan, Justice) on August 9, 1989 of

2

F. H. Vahlsing, Jr.’s Request for Stay of execution of F. H.

Vahlsing, Jr.’s sentence until the Petition for Writ of Certiorari

is granted and heard, or denied.

2. The basis of F. H. Vahlsing, Jr.’s request for such stay

is specifically outlined in F. H. Vahlsing, Jr.’s “Request for

Stay Pending Action on Petition for Writ of Certiorari to Su-

preme Court of the United States,” filed on August 4, 1989

in that F. H. Vahlsing, Jr. does not believe he is guilty of the

offense as charged.

3. As of the submission of this Memorandum, F. H. Vahl-

sing, Jr. has served thirty-nine (39) days of the Maine Superior

Court sixty (60) day sentence for Class C perjury in the Hidalgo

County Jail awaiting extradition to Maine pursuant to State of

Maine 17-A Section 1253 (effective March 1, 1989).

4. In connection with a State District Court hearing at Edin-

burg, Texas on July 31, 1989 in Cause No. CR-473-89-E,

expert medical witness, Dr. Benjamin Bujanda, of McAllen,

Texas (subpoenaed for such hearing), testified under oath based

upon the medical records of F. H. Vahlsing, Jr. (previously

submitted to this Court in connection with F. H. Vahlsing,

Jr.’s Request for Stay, filed August 4, 1989), relative to F.

H. Vahlsing, Jr. being transported to Maine to serve the remain-

ing (now) twenty-one (21) days of his Maine sentence, to wit:

“Q. (By Mr. Blumberg) The question, doctor, was:

What technical backup would be required during the

transport of this patient given consideration of his

medical background as you have just testified from

Texas to the State of Maine?

A. As a result of the conditions already described,

actually an ambulance, an air ambulance, should be

required safely to transfer him to any state, to any-

place that he would like to go in dealing with this

type of problems (sic).”

3

(See page 46 of transcript of hearing of July 31, 1989 in the

District Court, 275th Judicial District, Hidalgo County, Texas

in Cause No. CR-473-89-E, a copy of which is attached hereto

as Exhibit A.)

5. The two questions presented to the Supreme Court of

the United States in F. H. Vahlsing, Jr.’s Petition for Writ of

Certiorari are, to wit:

I. Cana perjury conviction be upheld consistent with

the Due Process Clause where the alleged false state-

ment was made at a void administrative hearing and

was immaterial to any valid admininstrative inquiry ?

II. Does an administrative proceeding which seeks

to enforce ex post facto a statutory scheme concern-

ing hazardous substances possess the legitimacy

necessary to support a perjury prosecution for an

alleged false statement made there?

F.H. Vahlsing, Jr. requests this Court to consider in connection

therewith whether a person can be convicted of having made

a perjurous statement if such statement was never made.

6. The transcript of the entire hearing before the Board of

Environmental Protection on December 19, 1984 has been

submitted to this Honorable Court in F. H. Vahlsing, Jr.'s

Motion for Reconsideration on August 17, 1989. That Motion

for Reconsideration requested this Honorable Court to carefully

examine such transcript and satisfy itself that the statement in

Count 3 of the Indictment (the only Count of such Indictment

not dismissed) was actually made by F.. H. Vahlsing, Jr. (and

alleged to be perjurous), in that such statement in fact was

never made by F. H. Vahlsing, Jr. A person should not be

convicted of a crime if in fact such crime never occurred.

7. The whole affair of the conviction of F. H. Vahlsing,

Jr. is born of political motivation to demonstrate to the people

4

of the State of Maine the police powers of the Environmental

Laws of the State of Maine.

8. Although it is somewhat of an arduous task to read the |

transcript of the Board of Environmental Protection Hearing |

of December 19, 1984, at which it was alleged that the perjur-

ous statement, Count 3 of the Indictment, was made by F. H.

Vahlsing, Jr., since such transcript contains 215 pages, F. H.

Vahlsing, Jr. requests this Honorable Court, in order that

justice be done, to réad such transcript and plainly see that

the statement, Count 3 of the Indictment, 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”

was never made. (If a murder was not committed, a person

cannot be convicted of that murder.)

Throughout this entire egregious affair, to the knowledge

of F. H. Vahlsing, Jr., neither the jury nor the Court at the

time of the lower court trial of F. H. Vahlsing, Jr. read such

transcript (except Judge Silsby of the Maine Superior Court,

who voided such hearing) to ascertain if such statement was

ever made even though the transcript was offered into evidence

as State’s trial exhibit #2 and submitted in the lower court

trial of F. H. Vahlsing, Jr., Smith, J. A person should not be

convicted of perjury pursuant to an alleged perjurious statement

when in fact such statement was never made notwithstanding

the fact that the Superior Court of Maine, Silsby, J., on May

2, 1986 and June 4, 1986, three months before the lower court

trial of F. H. Vahlsing, Jr. commenced, voided that hearing

of the Board of Environmental Protection due to its egregious

nature. (See Orders of Superior Court of Maine, Silsby, J.,

attached as Exhibit B-1 and Exhibit B-2 hereto.)

5

For all of the foregoing reasons, F. H. Vahlsing, Jr. requests

this great and honorable Court to take such time as necessary

to read every page of the transcript of the Board of Environmen-

tal Protection hearing and ascertain without a doubt that the

statement with which F. H. Vahlsing, Jr. was charged was

never made by F. H. Vahlsing, Jr. (or even any statement

resembling same) and accordingly, F. H. Vahlsing, Jr. cannot

be guilty as charged.

Accordingly, this Honorable Court is requested to issue a

stay of execution of the sentence of F. H. Vahlsing, Jr. until

the Petition for Writ of Certiorari is granted and heard, or

denied.

Respectfully submitted,

/s/

F. H. Vahlsing, Jr.

Petitioner, Pro Se

1119 South E St.

McAllen, Texas 78501

(512) 686-8581

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the attached

documentation was mailed via first class, United States mail,

postage prepaid on the 21st day of August, 1989 to the follow-

ing:

James T. Kilbreth, Esquire

Chief Deputy Attorney General

State House Station #6

Augusta, Maine 04333

/s/

F. H. Vahlsing, Jr.

[1]

CAUSE NO. CR-473-89-E

THE STATE OF TEXAS X IN THE DISTRICT COURT

xX

VS. X 275th JUDICIAL DISTRICT

xX

FREDERICK VAHLSING, JR. X HIDALGOCOUNTY, TEXAS

TRANSCRIPT OF HEARING ON HABEAS CORPUS

Judge Juan R. Partida, Presiding

Clarisia Rodriguez, Deputy

Official Court Reporter

275th District Court

Hidalgo County

State of Texas

Exhibit A

[46]

evidence. This doctor has not testified that it would require

any kind of medical backup, your Honor, during the trans-

portation of this individual.

THE COURT: Overruled. This witness may answer.

Q. (By Mr. Blumberg) The question, doctor, was: What tech-

nical backup would be required during the transport of this

patient given consideration of his medical background as

you have just testified from Texas to the State of Maine?

A. As a result of the conditions already described, actually

an ambulance, an air ambulance, should be required safely

to transfer him to any state, to anyplace that he would like

to go in dealing with this type of problems.

Q. Thank you, doctor.

MR BLUMBERG: We have no further questions. We

pass the witness.

MS. DOMINGUEZ: Your Honor, may we be given a

short recess to review this doctor’s medical records? They’re

about six or seven pages, your Honor; and they’re written

single spaced. If I may have an opportunity to read them before

I cross-examine Dr. Bujanda please.

[161]

CAUSE NO. CR-473-89-E

THE STATE OF TEXAS X IN THE DISTRICT COURT

VS. ; 275th JUDICIAL DISTRICT

FREDERICK VAHLSING, JR. ; HIDALGO COUNTY, TEXAS

I, Clarisia Rodriguez, Deputy official court reporter for the

275th District Court of the State of Texas, do hereby certify

that the foregoing pages contain a true and correct Transcript

of Hearing in the above entitled and numbered cause had on

the 3ist of July, A.D., 1989; that I was present at the time of

said proceedings and reported the same in machine shorthand.

I further certify that the attached exhibits, which have been

offered and admitted, are the originals of the exhibits admitted,

the originals having been marked by me and the time of said

proceedings and kept under my care, custody, and control.

I further certify that the taxable cost to the Defendant for

the Transcript of the hearing is $537.30.

Witness my hand this the 1 Sth day of August, A.D., 1989.

/S/

CLARISIA RODRIGUEZ, C.S.R.

Deputy Official Court Reporter

275th District Court

State of Texas

9

STATE OF MAINE

SUPERIOR COURT

AROOSTOOK, ss. CIVIL ACTION DOCKET #85- 16

F.H. VAHLSING, JR.

Plaintiff

ORDER

VS.

STATE OF MAINE B.E.P.

Defendant

* & Fe &€ Ee HE OS

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 (38MRSA

§ 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

Exhibit B-|

~

10

the decision named the individual Plaintiff, and the decision

states “Therefore, pursuant to 33MRSA § 1365, the Board

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 p.p. 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); SMRSA

§ 8001(6)(A).

Wherefore, ordered

1) Appeal sustained.

2) The decision of Defendant of August 17, 1984, is

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

Date: May 2, 1986

/s/

Hon. Herbert Silsby, Justice

Superior Court

1]

STATE OF MAINE

SUPERIOR COURT

AROOSTOOK, ss. CIVIL ACTION DOCKET CV-85-17

VAHLSING, INC.

Plaintiff

VS. ORDER

STATE OF MAINE BOARD OF

ENVIRONMENTAL

PROTECTION

Defendant

+ *£* &# &# H&E HOR OR

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.

Exhibit B-2

12

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 mitigate 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 iegislature had the burden of proof in

mind. The legislative intent itt 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, ordered

Appeal sustained. Decision of the board vacated,

and remanded to the commission for new hearing in

accordance with this order.

DATED: June 4, 1986

/s/

Herbert T. Silsby II

Justice, Superior Court

AROOSTOOK COUNTY

ROBERT R. RUSH, CLERK

JUN 6 1986

FILED & ENTERED

SUPERIOR COURT

13

No. 88-2127.

IN THE

Supreme Court of the Qnited States.

OCTOBER TERM, 1988.

FRED H. VAHLSING, JR.,

Petitioner,

V.

THE STATE OF MAINE,

Respondent.

Supplemental Memorandum of Facts

Filed by Fred H. Vahlsing, Jr.

ATTN: Justice Byron R. White and/or any other Justices as the

Court deems appropriate:

NOW COMES, F. H. Vahlsing, Jr., Petitioner, pro se, and

says:

1. On August 22, 1989, F. H. Vahlsing, Jr., Petitioner, pro

se, filed a Memorandum entitled: “MEMORANDUM OF FACTS

SUPPORTING MOTION FOR RECONSIDERATION FILED

BY FRED H. VAHLSING, JR. ON AUGUST 17, 1989.” In con-

nection with such Memorandum, it was pleaded by F. H. Vahl-

14

sing, Jr. that in connection with the Indictment in connection

with his charge of perjury, there was but one Charge (Number

3) of the three Charges of such Indictment remaining.

2. As of August 22, 1989, F. H. Vahlsing, Jr. did not have

available the following documentation which evidences beyond

a doubt that Charges | and 2 of the Indictment were dismissed

by the Trial Court below, Honorable Jack Smith, Justice of the

Superior Court. Attached hereto as Exhibit A are copies of pages

82 and 91 of Volume 12, TRANSCRIPT OF PROCEEDINGS

(with jury), dated September 17, 1986, which set forth that

Charge | and Charge 2 of the Indictment were dismissed, leaving

only Charge 3 of the Indictment. Also attached hereto as Exhibit

B for the Court’s convenience is a copy of the Indictment of F.

H. Vahlsing, Jr. setting forth the 3 Charges, 2 of which, Charges

| and 2, having been dismissed.

Respectfully submitted,

/s/

F.H. Vahlsing, Jr.

Petitioner, Pro Se

1119 South E St.

McAllen, Texas 78501

(512) 686-8581

15

STATE OF MAINE SUPERIOR COURT

Criminal Action

: Docket No. CR-85-652

PENOBSCOT, ss. Law Docket No. Pen-86-505

STATE OF MAINE

VS.

ee ee ee a ee

FRED H. VAHLSING, JR.

VOLUME 12

TRANSCRIPT OF PROCEEDINGS

(with jury)

BEFORE:

HONORABLE JACK SMITH, JUSTICE OF THE SUPERIOR COURT

Penobscot County Courthouse

97 Hammond Street

Bangor, Maine

September 17, 1986

APPEARANCES:

For the State: JAMES 1. KILBRETH, ESQ.

FERNAND LaROCHELLE, ESQ.

For the Defendant: J. HILARY BILLINGS, ESQ.

MARSHALL A. STERN, ESQ.

F. H. VAHLSING, JR.

Exhibit A

16

[82]

unless you were there. And not until June of 1984 does he bring

up, oh, I used to lease that but I stopped in 1982.

THE COURT: Donation of the building to the town, under

the terms of the lease, after the lease is canceled, after the lease

is canceled, the Railroad may, if it wishes, take the building

itself. It may.

MR. KILBRETH: It may.

THE COURT: Or it may tear the damn thing down and bill

Vahlsing for tearing it down. I take that statement as Freddie

trying to get out of any obligation he might have to Bangor and

Aroostook under the terms of that lease for the cost of removing

the structure, which I saw myself and is clearly not in very good

shape, which might well be a structure which is beyond repair

and would have to be torn down rather than fixed up. That why

Bangor and Aroostook has that kind of language in its lease. But

all of those obligations continue after the termination of the

Permit and Agreement, after there is no longer a tenancy under it.

And so, as to one and two, I do not feel that there is sufficient

evidence to go to the jury. I do feel that there is sufficient evidence

to go to the jury on number three.

Now I understand that I’m not going to have everybody agree

with me, but that is what my understanding of my . . . [91]

viewed in the light most favorable to the State. But applying that

standard, I have reached the conclusion that the proof still falls

short on number two, for example, as to both proof of ownership

and belief that such statement was false, which is the second

important prong of the offense of perjury. And I also find that

with respect to number one, that based upon the evidence that

we have and viewed most favorably to the State, you can’t come

out with any other conclusion but that this was not a statement

of fact by someone who knew that that fact was not true but rather

17

a quibble with a description that — that had appeared on this

order, and I — I guess I just have to stick with my original

decision, Mr. Kilbreth, although I appreciate your drawing that

to my attention.

(Mr. Stern entered chambers.)

THE COURT: Did you wish to discuss with me — I don’t

— I’m just seeking some guidance at this point as to how —

how I approach the jury once I have made this decision. Mr.

Kilbreth wants to rest before the jury, and you know the motion

can be made, but it has been made out of the — we have discussed

it out of the hearing on the jury, and any discussion of it would

be out of the hearing of the jury as to judgment of acquittal. And

I intend to — to grant it with respect to those two statements as

I’ve already indicated. That gets us to the point of what... .

[111] time as to anything. You are not to speculate as to what

has happened with respect to the statements that I just discussed

with you. You are not to discuss the case among yourselves or

with anyone else, and you are to keep yourself pure so to speak;

that is, you are to refrain from reading or listening to any comment

about this case from any source. I know that you take that obli-

gation seriously. Those juries that I’ve had contact with have

always done that. I guess until 9:00 tomorrow morning, I have

nothing further to give you. I do apologize for any periods of

time that you have been idle. Your presence was of course impor-

tant at all times. Goodnight. We will see you tomorrow morning.

(Court was recessed at 2:50 p.m.)

* * * * *

CERTIFICATE

I hereby certify that the foregoing is an accurate transcript of

my stenographic notes of the testimony and proceedings in the

above-entitled cause.

Dated this 27th day of May, 1988.

/s/

Maureen A. Bradford

Official Court Reporter

7 18

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CRIMINAL ACTION

Docket No. 85-128

STATE OF MAINE ) INDICTMENT FOR

) VIOLATION OF 17-A

V. ) M.R.S.A. § 451

) (PERJURY) CLASS C

)

FRED H. VAHLSING, JR.

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 before the State of Maine Board

of Environmental Protection on an administrative order (here-

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

incorporated 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 par-

agraph 2 of the Order as the site containing waste

pesticides and other hazardous wastes;

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

taining waste pesticides and other hazardous wastes

was not owned by Vahlsing, Inc.; and

Exhibit B

19

(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-

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 described in the Order, all in violation of

17-A M.R.S.A. § 451(1)(A) (1983).

A True Bill

/s/

Foreman

Dated: 3/5/85

20

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 DESIGNATION OF UNCON-

and VAHLSING, INC. TROLLED HAZARDOUS

SUBSTANCE SITE &

Proceeding Under 38 M.R.S.A. ADMINISTRATIVE ORDER

Section 1365, Uncontrolled

Hazardous Substance Sites

JURISDICTION

This Designation of Uncontrolled Hazardous Substance Sites

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 1361-1360.

Findings of Fact

1. 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

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

21

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.”

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

stances are located at the site in containers of various sizes

and condition.

. 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

. These substances exhibit the following characteristics and

threats to public health and safety in the event they are

released into the environment:

22

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

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 Environ-

mental Protection’s Hazardous Waste Management

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 Environ-

mental Protection’s Hazardous Waste Management

Rules.

23

c. Corrosive Liquid

A solution of this strength of acidity is comparable to

a 0.6% solution of hydrochloric 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

Management Rules.

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

nated as hazardous wastes by the Board of Environmentai

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 1305, 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

24

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.

On December |, 1983, a Letter of Warning was mailed

from this Departmen 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.

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:

l.

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;

25

4. 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.

5. The actual or threatened releases of hazardous substances

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

safety or welfare and to the natural environment; and

6. 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 Eas-

ton, Maine as an Uncontrolled Hazardous Substance Site.

ORDER

Vahlsing, is hereby ordered and directed to:

1. Within five (5) days:

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 immediately with this Order.

26

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. =

27

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the attached

documentation was mailed via first class, United States mail,

postage prepaid, on the 5th day of September, 1989 to the

following:

James T. Kilbreth, Esquire

Chief Deputy Attorney General

State House Station #6

Augusta, Maine 04333

/s/

F. H. Vahlsing, Jr.