217, aff'd, 547 U.s. 370 (2006). One of those conditions was to require the direct
injection of oxygen into the River so as to achieve the minimum oxygen levels
established by law. 2 To determine how much oxygen must be injected into the River to
attain governing standards, the Department of Environmental Protection (DEP) staff
conducted water quality modeling designed to identify the causes of oxygen depletion.
Although there appears to be no dispute that petitioner's Project contributes to the low
oxygen levels, the main issue before the BEP was how to apportion responsibility for
this problem. Petitioner takes issue with modeling done by the DEP, which the BEP, at
least in part, relied upon to make a determination of petitioner's responsibility for the
low oxygen levels.
On 5/6/08, the BEP filed the record on appeal pursuant to M.R. Civ. P. 80C(f).
Petitioner seeks to supplement the record with three types of evidence: 1) 10 documents
that pre-date the BEP's decision under review, (see Pet'r Exs. 2(A)-2G)); 2) 3 documents
that post-date the BEP's decision, (see Pet'r Exs. 3(A)-3(C)); and 3) by conducting
depositions of former and current DEP staff, and DEP consultants, HydroAnalysis, Inc.
(See Pet'r Br. at 15-16.)
DISCUSSION
2The BEP also imposed corresponding oxygen injection requirements on Verso and RPC, which operate mills on the River. 3
I. 10 pre-decisional documents: exhibits 2(A)-2(J)3
Prior to the BEP's 2/7/08 order, the petitioner obtained access to certain
documents pursuant to Maine's Freedom of Access Act (FOAA),4 which, petitioner
contends, reflect the DEP's recognition of problems with its water quality modeling.
Petitioner sought to supplement the record at the agency level to include these
documents, but, by order dated 1/17/08, the BEP denied that request. Pursuant to Rule
80C(f),s petitioner now seeks to include ten of these documents to "establish that the
Department was aware of the serious nature of those errors prior to the issuance of the
Order," but chose not to remedy the errors despite adequate time and funding, "making
the Order's reliance on that model for allocation purposes unconstitutional." (Pet'r Br.
at 6.); see Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914,923 (D.C. Cir. 1998) ("[a]n
agency's use of a model is arbitrary if that model 'bears no rational relationship to the
reality it purports to represent'''). Petitioner contends that, because the BEP relied
heavily on DEP staff, these documents constitute the "record upon which the agency
decision was based," 5 M.R.S. § 11006 (2008), which the BEP should have filed with the
court. Alternatively, petitioner argues that these documents establish "bias," driven
by political pressure "from the highest ranks of the State Administration." (Pet'r Br. at
12.) Thus, petitioner seeks admission of these documents as "additional evidence of
procedural irregularities not adequately revealed in the Record./I M.R. Civ. P. 80C(e); 5
M.R.S. § 11006(1); (Pet'r R. Br. at 5 nA.)
3 In light of an 11/12/08 stipulation with the court, petitioner is not seeking to supplement the record with exhibit 2(J). Accordingly, petitioner's motion actually seeks to supplement the record with nine pre decisional documents. (See Pet'r Exs. 2(A)-(I).) 4 See 1 M.R.S. §§ 401-12 (2008).
5 The party contesting the adequacy of the record is required to provide notice of the claimed defect to the administrative agency within ten days. York Hosp. v. Dep't of Health and Human Servs.. 2005 ME 41, CJ[ 15, 869 A.2d 729, 734 (explaining requirements of M.R. Civ. P. 80C(f)). 4
The respondent counters that documents contained in exhibits 2(B)-2(I) are
evidence of the agency's deliberative process, which is not properly included in the
record. See Carl L. Cutler Co. v. State Purchasing Agent, 472 A.2d 913, 918 (Me. 1984)
(recognizing the "general rule forbidding inquiry into the mental processes of an
administrative decisionmaker," but acknowledging an exception where a proper
showing of bad faith or bias is made). Respondent further argues that exhibit 2(A), a
2005 Attorney General Report regarding the DEP's alleged violation of the FOAA, is
immaterial. Petitioner maintains that this document is relevant to petitioner's
contention that allocation for the responsibility of injecting oxygen was "a preordained
result engineered by the [DEP] at the behest of Department-political forces to favor the
interests of others at the expense" of petitioner. (Pet'r Offer of Proof at 1.)
Assessing the merits of petitioner's contention that the pre-decisional documents
should have been part of the administrative record requires a review of the contested
documents to determine "whether they were in the nature of documents that should
have been included in the record forwarded by the administrative body." York Hosp.
v. Dep't of Health and Human Servs., 2005 ME 41, «[ 14, 869 A.2d 729, 733; M.R. Civ. P.
80C(f). Upon review, the court finds that these documents should be included in the
record. Although clearly the BEP's order is the agency decision under review, the BEP's
reliance on DEP staff for institutional support, technical services, and factual
information reflect that the BEP's decision is partly based upon the DEP's collective
knowledge. See, ~ 38 M.R.S. § 342(1l-A). Accordingly, the DEP correspondence
contained in exhibits 2(b)-(I) constitute the "record upon which the agency decision is
based." 5 M.R.S. § 11005. While inquiry into the mental impressions of agency 5
decision-makers is prohibited, the petitioner does not offer, and the court will not
consider, these documents for this purpose. 6
Finally, pursuant to Rule 80C(e), the court will accept exhibit 2(a) as evidence of
"procedural irregularities not adequately revealed in the Record." 5 M.R.S. §
11006(l)(A).7 The 16-page report describes alleged FOAA violations by the DEP in
connection with certain negotiations relating to water quality on Gulf Island Pond. (See
Pet'r Ex. 2(a).) Although the respondent argues that the report generally concludes that
the DEP violated the FOAA unknowingly and recommends that no enforcement action
be taken, the court cannot conclude that petitioner's offer of proof is so insufficient as to
preclude petitioner the opportunity to argue the issue. As the BEP denied the
admission of this document at the administrative level, the substance of the report is not
otherwise adequately revealed in the record. Accordingly, because petitioner has
presented sufficient prima facie evidence to trigger section 11006(1)(A), the court will
accept this additional evidence into the administrative record. See Carl L. Cutler Co.,
472 A.2d at 918 (Me. 1984) (discussing required prima facie showing of "alleged
irregularities in procedure" before section 11006(1)(A) triggered).
II. Post-decisional documents (exhibits 3(a)-(c)) and proposed depositions
Pursuant to M.R. Civ. P. 80C(e), petitioner seeks to supplement the administrative
record with post-decisional documents and depositions. (See Pet'r Br. 13-16.) The
general rule under the Maine Administrative Procedures Act is that "judicial review
shall be confined to the record upon which the agency decision was based." 5 M.R.S. §
11006(1); Keller v. Maine Unemployment Ins. Comm'n, 477 A.2d 1159, 1162 (Me. 1984).
6 Without deciding, the court further notes that the communications petitioner seeks to introduce are from OEP staff, who may not be the actual agency "decision-makers." See 38 M.R.S. §§ 341-0(4), 341-B. 7 Section ll006(l)(A) provides that "in the case of the failure or refusal of an agency to act or of alleged irregularities in procedure before the agency which are not adequately revealed in the record, evidence thereon may be taken and determination made by the reviewing court." 6
However, a party seeking judicial review pursuant to M.R. Civ. P. 80C may file a
motion requesting "that the reviewing court take additional evidence or order the
taking of additional evidence before an agency as provided by 5 M.R.S.A. § 11006(1)."
M.R. Civ. P. 80C(e). Rule 80C(e) "is most appropriately asserted when there is evidence
relevant to bias or prejudice, or, in some instances, an equitable defense or claim that
could not have been addressed to the agency during the administrative proceedings."
York Hosp., 2005 ME 41, <[ 20,869 A.2d at 735
Petitioner, relying on section 11006(1)(B), generally makes arguments relating to
the proffered evidence's "materiality" and that fact that flit could not have been
presented before the agency." See 5 M.R.S. § 11006(1)(B). Section 11006(1)(B), however,
sets forth the two requirements "which must be met before the Superior Court need
consider whether it should remand the case to the [agency]." Smith v. Maine Employment
Sec. Comm'n, 456 A.2d 2, 7 (Me. 1983) (emphasis added). Thus, although the court may
order the agency to take additional evidence, section 11006(1)(B) "does not permit the
Superior Court justice to take additional evidence during the appellate process." Keller,
477 A.2d at 1162 (emphasis supplied). Consequently, to the extent petitioner asks this
court to accept post-decisional evidence and testimony under section 11006(1)(B) in the
first instance, petitioner's motion is denied.
Similarly, the proffered evidence does not merit remanding the case to the BEP to
allow it to consider petitioner's post-decisional documents or granting leave to allow
petitioner to conduct depositions of DEP staff. As an initial matter, using evidence that
did not exist at the time the BEP made its decision to fairly review the BEP's decision
runs completely counter to the purpose of Rule 80C review. See Walter O. Boswell
Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) ("[t]o review more than the
information before the Secretary at the time she made her decision risks our requiring 7
administrators to be prescient"); Hale-Rice v. Maine State Ret. Sys., 1997 ME 64, CJ[ 16,
691 A.2d 1232, 1237 (finding no abuse of discretion where Superior Court denied
plaintiff's motion for additional evidence partly because "the psychological evaluation
was prepared three months after the petition for judicial review was filed"). Such post
decisional evidence would, accordingly, appear to be immaterial to the issues presented
on review of the BEP's order.
The court notes the particular difficulty in this case, with the seeming inherent
conflict between the on-going nature of the developing science involved in water
quality modeling and traditional 80C review, which requires a judicial assessment of
the agency's decision based upon the data before the agency at the time the decision
was made. Nevertheless, the court does not understand this peculiarity to alter the
standard concept of Rule 80C review. This conclusion is bolstered by 38 M.R.S. § 341
D(3), which allows the BEP to revisit and modify the terms of any license based upon a
subsequent change in condition or circumstance. Through this provision, the
legislature has provided a mechanism by which the BEP should address evidence that
may suggest the initial permitting decision was flawed. In light of the legislative
scheme, subsequent documents that allegedly establish the extent of errors in water
quality modeling are properly addressed through 38 M.R.S. § 341-D(3), rather than
through remand pursuant to 5 M.R.S. § 11006(l)(B). Accordingly, petitioner's motion to
remand for the BEP to take additional evidence is denied.
Finally, petitioner relies upon section 11006(l)(A) to argue that the post-decisional
documents and proposed depositions establish "irregularities in procedure before the
agency" because "the evidence establishes the extent of the errors in the underlying
model, and therefore, that the [BEP's] reliance on the flawed model, despite knowledge
of its flaws, was arbitrary and capricious." (Pet'r R. Br. at 6.) Although it appears that 8
the court itself may take additional evidence under this section, petitioner's allegations
do not constitute the "irregularities in procedure" contemplated by section 1l006(1)(A).
Procedural irregularity of the type contemplated by section 1l006(1)(A) clearly
encompasses some form of bad faith, bias, improper behavior, or other misconduct.
See, ~ Carl L. Cutler Co., 472 A.2d at 918 (Me. 1984) (discussing required prima facie
showing of "alleged irregularities in procedure" before section 1l006(l)(A) is triggered
in conjunction with explanation that prima facie evidence of bad faith be introduced
prior to abrogating rule forbidding inquiry into mental processes); Frye v. Inhabitants
of Cumberland, 464 A.2d 195, 199 (Me. 1983) (discussing the "more extreme case[s] of
procedural irregularity"). While it is unclear that the phrase is so limited, equating
"irregularities in procedure" with allegedly erroneous findings in an agency decision-
as petitioner's proffered analysis compels-would effectively allow the court to take
any evidence in the first instance, swallowing the general "agency-first" principle
espoused by section 1l006(1)(B). See also Christian Fellowship & Renewal Ctr. v. Town
of Limington, 2006 ME 44, CJ[ 40,896 A.2d 287, 298 ("courts should avoid ruling, on
appeal, on matters committed by law to the decision-making authority of an
administrative agency before the administrative agency has first had an opportunity to
review and decide the facts on the merits of the matter at issue"). Because petitioner
has not presented prima facie evidence of bad faith or other arguable "irregularities in
procedure,"s petitioner's motion is denied.
8Petitioner's allegation, in its Offer of Proof, that post-decisional documents establish that "the allocation of responsibility for oxygenation was a preordained result engineered by the Department at the behest of political considerations to favor the interests of others at the expense of FPL," does not meet this threshold requirement. Unlike exhibit 2(a), as discussed above, the documents themselves, at best, address the merits of the BEP decision, and indicate no evidence of bad faith or improper behavior. (See Pefr Exs. 3(A)-3(C).) 9
The entry is:
Petitioner's motion to modify the agency-designated record and present additional evidence to include documents contained in Exhibit 2 is GRANTED.
Petitioner's motion to present additional evidence by supplementing the agency-designated record to include documents contained in Exhibit 3 and for leave to conduct depositions is DENIED.
February ~ 2009
Attorneys for Petitioner Jack Montgomery, Bar #: 1822 Jeffrey A. Thaler, Bar #: 2062 Asha A. Echeverria, Bar #: 4165 Bernstein Shur P.O. Box 9729, 100 Middle Street Portland, ME 04104-5029
Attorneys for Respondent, Maine Board of Environmental Protection Gerald D. Reid, Asst. Atty. Gen., Bar #: 8014 Office of Attorney General 6 State House Station Augusta, Maine 04333
Attorneys for Intervenor, Verso Paper Corp. Juliet T. Browne, Bar #: 8261 Scott D. Anderson, Bar #: 8969 Verrill Dana, LLP One Portland Square Portland, ME 04112
Attorneys for Intervenor Rumford Paper Company Virginia E. Davis, Bar #: 1076 Michael Kaplan, Bar #: 3296 Preti Flaherty One City Center P.O. Box 9546 Portland, ME 04112-9546 Date Filed -----""3:.L1.L.J7/~0~8'______ _ KENNEBEC Docket No. AP-08-15 County
Action RULE BOC APPEAL .J JABAR
STATE OF MAINE, BOARD OF ENVIRONMENTAL FPL ENERGY MAINE HYDRO. LLC VS. PROTECTION Plaintiff's Attorney Defendant's Attorney JACK MONTGOMERY, ESQ. JERRY REID, AAG JEFFREY A. THALER, ESQ 6 STATE HOUSE STATION ASHA ECHEVERRIA, ESQ AUGUSTA MAINE 04333-0006 100 MIDDLE ST, WEST TOWER -VIRGINIA E DAVIS, ESQ (Rumford Paper Go.) PORTLAND, ME 04101 MICHAEL KAPLAN, ESQ. ONE CITY CENTER P.O. BOX 9546 PORTLAND MAINE 04112-9546 Date of JULIET BROWNE, ESQ & SCOTT ANDERSON (Verso) Entry PEiER BRANN, ESQ. (Natural Resources Counci:
3/7 /08 Complaint (Petition for Review of Final Agency Action Pursuant to Rule 80C) (Exhibits 1 - 6 attached) filed. 3/17/08 Joint Stipulation and Order Specifying Future Course of Proceedings, filed. s/Montgomery, Esq. s/Reid, AAG Letter entering appearance, filed. a/Reid, AAG 3/24/08 ~otice of Appearance, filed. s/Davis, Esq. 3/27/08 Notice of appearance of Juliet Browne and Scott Anderson for Verso Paper filed s/Juliet Browne, Esq.
3/27/08 Written Appearance of Natural REsources Council of Maine filed. s/Stitham, Esc
3/31/08 Joint stipulation filed. s/Echeverria, Esq.
4/9/08 JOINT STIPULATION AND ORDER SPECIFYING FUTURE COURSE OF PROCEEDINGS, Jabar, J. (4/8/08) Copy mailed to attorneys of record. 5/9/08 Certification of Record, filed. s/Reid, AAG (5/7/08)
6/4/08 Joint Motion to Amend Stipulation and Order Specifying Future Course of Proceedings, filed. s/Reid, AAG Proposed Order, filed.
6/11/08 JOINT MOTION, Jabar, J. (6/4/08) BURSUANT TO JOINT MOTION, IT IS SO ORDERED. Copies mailed to attys. of record.
6/23/08 Joint Motion to Stay Proceedings, filed. s/Meader, AAG ORDER TO STAY PROCEEDINGS, Jabar, J. (faxed to Penobscot) Copies to attys. of record. 10/3/08 Joint Stipulation and Order Specifying Future Course of Proceedings, filed. s/Montgomery, Esq. s/Reid, AAG Date of Entry Docket No.
10/17/08 JOINT STIPULATION, Jaoar, J. Pursuant to Stipulation, it is so Ordered. Copies mailed to attys. of record. 10/17/08 Notice Upon Agency Regarding Exclusions from the Record, filed. s/Montgomery, Esq. 10/27/08 First Amended Notice Upon Agency Regrding Exclusions from the Record, filed. s/Thaler, Esq. 10/29/08 Petitioner's Motion for Modification of the Contents of the Agency Designated record under M.R.CIV.P. 80C(d) or (f), and for Leave to Present Additional Evidence under M.R.CIV.P. 80C(e), with Incorporated Memorandum of Law, filed. s/Montgomery, Esq. (attached exhb:Ll."1:~) 11/5/08 Consented to Motion to Exceed Page Limit, filed. s/Echeverria, Esq. 11/12/08 Joint Sipulation and Order Specifying Evidentiary Stipulation & Additions to the Contents of the Agency-Designated Record, filed. s/Echeverria, Esq.
11/20/08 Respondent Board of Environmental Protection's Memorandum in Opposition to Petitioner's Motion to Modify the Record and for Leave to Prsent Additional Evidence, filed. s/Reid, AAG Verso Paper Corp. Partial Opposition of the Contents of the Agency Designated Record and for Leave to Present Additional Evidence, filed. s/Anderson, Esq. Rumford Paper Company's Opposition to Petitioner FPL Energy's Motion for Modification and for Leave to Present Additional Evidence, filed. s/Davis, Esq. Consented to Motion to Extend Deadline to File Reply Memorandum, filed. s/Montgomery, Esq. Proposed Order, filed. 12/3/08 ORDER GRANTING MOTIONFOR MODIFICATION OF THE CONTENTS OF THE AGENCY DESIGNATED RECORD AND FOR LEAVE TO PRESENT ADDITIONAL EVIDENCE, Jabar, J. (12/1/08) Copies to attys. of record. ORDER, Jabar, J. Consented to Motion to Exceed Page Limit is GRANTED. Copies mailed to attys. of record. JOINT STIPULATION AND ORDER SPECIFYING EVIDENTIARY STIPULATIONS, Jabar, J. (12/1/08) Pursuant to Stipulation, it is so Ordered. Copies mailed to attys. of record. ORDER, Jabar, J. (12/1/08) GRANTED. IT IS HEREBY ORDERED: That Petitioner FPL Energy Maine Hydro, LLC's deadline to file a Reply Memorandum to any Oppositions to its Motion for the Modifications is hereby extended to December 9, 2008. Copies mailed to attys. of record.
1 Notice of setting fOf, . Jl.~ Dttr -.... ... --"
sent to 8aomeys of record, 12/9/08 Petitioner's Reply to Memorandum in Opposition to Petitioner's Motion to Modify the Record and for Leave to Present Additional Evidence, filed. s/Echeverria, Esq. PAGE 3
Date of Entry FPL Ener of Env:P£8hl!tffibl 'Pi III ~I I lilTi AP08-15
12/10/08 Letter, filed. s/Reid, AAG 12/11/08 Letter, filed. s/Anderson, Esq. Letter, filed. s/Kaplan, Esq. 1/8/09 Hearing held with Hon. Justice Jabar, presiding. Jack Montgomery, Esq. for the Petitioner and Jerry Reid, AAG, Stott Anderson, Esq. and Michael Kaplan, Esq. for the Respondent. Oral arguments made to the court. Court to take matter under advisement 2/9/09 DECISION AND ORDER, Jabar, J. Petitioner's motion to modify the agency-designated record and present additional evidence to include documents contained in Exhibit 2 is GRANTED. Petitioner's motion to present additional evidence by supplementing the agency-designated record to include documents conatined in Exhibit 3 and for leave to conduct depositions is DENIED. Copies to attys. of record. Copies to repositories.