Mallinckrodt US v. Maine Dep't of Envtl. Protection.

• Court: Superior Court of Maine
• Decided: October 31, 2012
• Docket: CUMap-11-02
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Dock~t No.: BCD-AP-11-02 c 0 N --cuJY!~ ./ 1/~l I , or.: ) MALLINCKRODT US, LLC and ) UNITED STATES SURGICAL CORP., ) ) ) Petitioners, ) ) DECISION AND ORDER v. ) ) MAINE DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, ) ) Respondent ) )

This matter is before the Court on Petitioners' request for judicial review of the August

19, 2010, Findings of Fact and Order on Appeal (the Order) of the Maine Board of

Environmental Protection Board (the Board). (Administrative Record [hereinafter, "A.R."]

344.) 1 Through the Order, the Board required Petitioners (Mallinckrodt) to remediate the former

HoltraChem site (the Site) in Orrington, Maine.

FACTUALANDPROCEDURALBACKGROUND

The Site is located along the Penobscot River, and consists of approximately 77

contaminated acres. As the result of the operation of a chemical manufacturing plant, the Site

was contaminated with various hazardous substances, including mercury, chloropicrin, carbon

1 The administrative record was submitted to the Court in electronic format on an external hard drive. The decision identifies documents in the record by the document number listed in the separately index and then by the page number of the electronic document where applicable. tetrachloride, and tetrachloroethene. Although at first the plant diverted the chemicals into the

river, the plant subsequently deposited the waste into five landfills on the Site.

On November 24, 2008, the Commissioner of the Maine Department of Environmental

Protection (the Department), citing the Uncontrolled Hazardous Substance Sites Law (UHSSL),

38 M.R.S. §§ 1361-71 (2011), issued an order requiring Mallinckrodt to clean up the Site. On

December 19,2008, Mallinckrodt appealed to the Board from the Commissioner's order.

Prior to a final de novo hearing, the Board conducted several conferences during which

the Board considered and addressed various procedural issues. As the result of the prehearing

conferences, the Board issued thirteen procedural orders. In accordance with the orders, both

parties filed direct and rebuttal pre-hearing testimony. In January and February of 2010, the

Board conducted a nine-day, de novo evidentiary hearing. During the hearing, the parties

presented witnesses, cross-examined witnesses, and filed a number of exhibits.

On August 19, 2010, the Court issued the Order through which the Board modified the

Commissioner's order. While the Commissioner had ordered the removal of all five of the

landfills, the Board ordered the removal of two of the landfills.

In the present matter, Mallinckrodt maintains that the Board made various errors of both

law and fact. Among its arguments, Mallinckrodt contends that the Board failed to adopt

appropriate rules for the proceeding, improperly included and excluded certain evidence

(including evidence of bias and political prejudice), and failed to apply the appropriate criteria

prior to issuing its remediation order. Mallinckrodt also argues that the Board's findings are not

supported by substantial evidence on the record, and that the proceeding did not comply with due

process requirements.

2 DISCUSSION

I. STANDARD OF REVIEW

In an appeal of final agency action brought pursuant to M.R. Civ. P. 80C, the court

reviews "the agency's decision for errors of law, abuse of discretion, or findings not supported

by substantial evidence in the record." Beauchene v. Dep't of Health & Human Servs., 2009 ME

24, ~ 11, 965 A.2d 866, 870 (quotation marks omitted); see also Seider v. Bd. of Exam'rs of

Psychologists, 2000 ME 206, ~ 8, 762 A.2d 551, 555. On appeal, the court may affirm the

decision, 5 M.R.S. § 11007(4)(A) (2011), remand for further proceedings, 5 M.R.S.

§ 11007(4)(B) (2011), or:

[r]everse or modify the decision if the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by bias or error of law; (5) Unsupported by substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion.

5 M.R.S. § 11007(4)(C) (2011).

"The court shall not substitute its judgment for that of the agency on questions of fact."

5 M.R.S. § 11007(2) (2011). Factual findings must be affirmed if "they are supported by

substantial evidence in the record, even if the record contains inconsistent evidence or evidence

contrary to the result reached by the agency." Concerned Citizens to Save Roxbury v. Bd. of

Envtl. Prot., 2011 ME 39, ~ 24, 15 A.3d 1263 (quotation marks omitted). Substantial evidence is

"any competent evidence in the record to support a finding" based upon a review of the entire

record to determine whether "the agency could fairly and reasonably find the facts as it did." !d.

"An agency's findings of fact will be vacated only if there is no competent evidence in the record

3 to support a decision." /d. ' 24, 15 A.3d 1263 (quotation marks omitted). Credibility

determinations of witnesses are within the exclusive province of the Administrator as fact finder.

See Sprague Elec. Co. v. Me. Unemp't Ins. Comm'n, 544 A.2d 728,732 (Me. 1988).

II. ANALYSIS

A. UHSSL Statutory issues: 5 M.R.S. § 11007(4)(C)(l)

Mallinckrodt raises a series of argument related to the statutory requirements of UHSSL.

1. Commissioner's Authority pursuant to the section 1365 of the UHSSL

Mallinckrodt maintains that pursuant to 38 M.R.S. § 1365, the Commissioner did not

have the authority to issue an order requiring a long-term clean up of a hazardous site. Instead,

Mallinckrodt argues, the Commissioner's ability to issue an order requiring the remediation of a

site is limited to matters that require immediate attention. According to Mallinckrodt, in order to

obtain a long-term remediation order, the Department must commence an action in Superior

Court.

Section 1365 provides, in pertinent part:

1. Investigation. Upon finding, after investigation, that a location at which hazardous substances are or were handled or otherwise came to be located may create a danger to the public health, to the safety or any person or to the environment, the commissioner may:

A. Designate that location as an uncontrolled hazardous site;

B. Order any responsible party dealing with the hazardous substances to cease immediately or to prevent that activity and to take an action necessary to terminate or mitigate the danger or likelihood of danger; and

C. Order any person contributing to the danger or likelihood of danger to cease or prevent that contribution.

4. Compliance; appeal. The person to whom the order is directed shall comply immediately and may apply to the board for a hearing on the order if the

4 application is made within 10 working days after receipt of the order by a responsible party. Within 15 working days after receipt of the application, the board shall hold a hearing, make findings of fact and vote on a decision that continues, revokes or modifies the order. That decision must be in writing and signed by the board chair using any means for signature authorized in the department's rules and published within 2 working days after the hearing and vote ....

5. Civil action. The Attorney General may file suit in Superior Court to compel any responsible party to abate, clean up or mitigate threats or hazards posed or potentially posed by an uncontrolled site.

38 M.R.S. § 1365(1), (4), (5).

Simply stated, the plain language of the UHSSL does not support Mallinckrodt's

argument. Not insignificantly, the UHSSL does not define the Commissioner's authority based

on the urgency presented by a particular situation. Similarly, section 1365(4), which authorizes

the filing of a civil action in Superior Court, does not distinguish between an urgent matter, and

one for which a long-term solution is necessary. Under a logical reading of the UHSSL, the

Commissioner has the authority to issue an order that requires a responsible party to remediate a

hazardous condition regardless of the urgency of the situation. If a responsible party fails to

comply with the Commissioner's order, § 1365(4) authorizes the Attorney General to file suit to

enforce the Commissioner's order.

2. Responsible Party

Mallinckrodt argues that the Board read various portions of the UHSSL incorrectly, and

thus did not apply the required criteria that Mallinckrodt was "dealing with hazardous

substances" when assessing whether Mallinckrodt was a responsible party. See 38 M.R.S. §

1365(1)(B). The Department argues that the statute does not require a person to be dealing

currently with the hazardous substance in order to be deemed a responsible party. Responsible

5 party is defined by statute: either "(t]he owner or operator of the uncontrolled site," or "[a]ny

person who owned or operated the uncontrolled site from the time any hazardous substance

arrived there." 38 M.R.S. § 1362(2)(A), (B). Further, the Court does not read section

1365(1)(B) as limiting "responsible parties" under the statute to those who are presently dealing

with the hazardous substances.

To limit responsibility to those who are dealing with hazardous substances at the time of

the Commissioner's order would absolve persons designated as responsible parties not presently

in control of the site from any responsibility to terminate or mitigate the danger from hazardous

substances, which result would be contrary to the Legislature's stated intentions in 38 M.R.S. §

1361: "adequate measures must be taken to ensure that the threats posed by uncontrolled

hazardous substance sites are abated, cleaned up or mitigated promptly." The better reading of

the statute is that the Commissioner may "order any responsible party dealing with the hazardous

substance to cease immediately or to prevent that activity [or] to take an action necessary to

terminate or mitigate the danger or likelihood of danger." 38 M.R.S. § 1365(1)(B); accord 1

M.R.S. 71(2) (2011) ("The words 'and' and 'or' are convertible as the sense of the statute my

require."). The Commissioner and the Board may "order any responsible party ... to take an

action necessary to terminate or mitigate the danger or likelihood of danger." 38 M.R.S. §

1365(1)(B). The Board thus applied the correct standard, and its findings are in accordance with

the statute.

3. RCRA

Mallinckrodt asserts that the Board applied an improper standard in determining whether

the Commissioner's order was "necessary," as required by UHSSL. See 38 M.R.S.

§ 1365(1)(B). Mallinckrodt argues that the Board should have applied the 11 so-called RCRA

6 / factors, which are 11 criteria promulgated by the EPA derived from the Recourse Conservation

and Recovery Act (RCRA), 42 U.S.C.S. § 6901 et seq. (LexisNexis 2010). Mallinckrodt points

to two basis statements, one from 2002 and one from 2008 (A.R. 1442, 1479), in which the

Department indicated that the decision about the cleanup of the Site would be based on the i 1

RCRA factors. In issuing its decision, however, the Board did not require compliance with the

11 RCRA factors. Rather, the Board viewed them as issues that the Board should consider when

it established the basis for the order, but not criteria that must be satisfied. (A.R. 344 at 8-9 .)

Mallinckrodt argues that the Board's failure to mandate compliance with all of the factors is

error.

The Court disagrees. As the Department notes, use of the 11 RCRA factors is not

mandated by the UHSSL. On an appeal to the Board, the Commissioner must establish the basis

for the order. As discussed above, the Commissioner satisfied that requirement. In this case, the

Board must establish the basis of its order. Thus, the Department must demonstrate that: 1)

Mallinckrodt is a responsible party pursuant to the UHSSL, see 38 M.R.S. § 1362(2);

2) hazardous substances are located at the site in question; 3) the hazardous substances at the site

may create a danger to the public health or safety; and 4) the order is necessary to terminate or

mitigate danger or the likelihood of danger. See 38 M.R.S. § 1365. The UHSSL does not

require strict application of the RCRA factors or satisfaction of the RCRA factors. The RCRA

criteria are simply factors that the Board can permissibly consider when assessing whether the

Site contains hazardous substances, whether the Site poses a threat to public health and safety,

and whether the proposed remediation measures are necessary to ameliorate the situation. The

Board thus did not err by considering, but not mandating the satisfaction of the RCRA factors.

7 4. Use ofpost hoc evidence as basis for the Order

Mallinckrodt maintains that because the Department had the burden to prove the basis of

the Commissioner's order, the Board erred when it permitted the introduction of "new

information as a post-hoc rationalization for the basis of [the Commissioner's] Order." (Pet.'s

Br. 37). According to Mallinckrodt, when it allowed the Commissioner to present evidence that

was not available or was not considered at the time the Commissioner issued his decision, the

Board effectively altered the burden of proof.

Contrary to Mallinckrodt' s argument, the Board required the Commissioner to establish

the basis of his order and thus complied with the applicable burden of proof. The record reflects

that the Commissioner presented evidence of the Commissioner's decision and the reason

therefor. The Board did not simply assume or speculate as to the reasons for the Commissioner's

order. Rather, in its decision, the Board set forth the substance of the Commissioner's various

conclusions, and discussed and analyzed the Commissioner's reasoning. Consistent with the

requirements of 38 M.R.S. § 1365(4),2 for each of the Commissioner's conclusions, therefore,

the Board also considered and assessed Mallinckrodt's challenges to the Commissioner's order.

Importantly, none of the applicable statutes limits the relevant evidence in the proceeding

before the Board to the evidence that was available to and considered by the Commissioner.

Such a rule would be inconsistent with the de novo hearing that the Board was required to

conduct. In other words, the fact that the Board permitted both parties to introduce evidence that

was relevant to the Board's determination of the appropriate means by which the Site should be

2 38 M.R.S. § 1365(4) (2011) provides in pertinent part: "At the hearing, all witnesses must be sworn and the commissioner shall frrst establish the basis of the order and for naming the person to whom the order is directed. The burden of going forward then shifts to the person appealing to demonstrate, based upon a preponderance of the evidence, that the order should be modified or rescinded."

8 cleaned up, regardless of whether the evidence was available to the Commissioner at the time he

issued his decision, is in accordance with the principles of a de novo hearing.

To prohibit the Board from considering relevant evidence that might have been generated

or made available after the date of the Commissioner's order would not only be contrary to the

concept of a de novo hearing, but could also result in decisions that would not provide "for the

prompt and effective planning and implementation of plans to abate, clean up or mitigate threats

posed or potentially posed by uncontrolled sites." 38 M.R.S. § 1361. If the Court were to adopt

Mallinckrodt's reasoning, the Board would have to disregard relevant, reliable information that

was potentially critical to the public safety simply because the information was not available to

the Commissioner. Logic suggests that the Legislature did not contemplate or intend such a

result.

5. Failure to define UHSSL terms

Mallinckrodt also asserts that the Board erred by not defining key terms in the statute,

including ".necessary," "terminate," "mitigate," and "danger." Because there were no rules or

regulations interpreting the statutory provision, Mallinckrodt contends that the Board had no

standards by which to determine whether the evidence met the statutory requirements.

Preliminarily, the Board was not required to define all of the terms in the statute prior to

the hearing. As the Law Court has stated with respect to administrative agencies:

As part of its adjudicative responsibility, the Board had the obligation to apply the statute that was at issue in the proceeding. When a party to an agency adjudicative proceeding raises a question about a statute's meaning or scope and the statute is one administered by the agency, the agency must interpret it if the interpretation is necessary to the adjudicative decision. Agencies are not required to promulgate rules defining every statutory term that might be called into question. They are expected to apply statutes within their expertise as cases arise.

9 Cobb v. Bd. of Counseling Profls Licensure, 2006 ME 48,' 24, 896 A.2d 271. In this case,

Mallinckrodt has not identified any prejudice resulting from the Board's failure to define

"necessary" or any other word in advance of the hearing.

Further, a statute must not be read in isolation, but "in the context of the statutory and

regulatory scheme." Conservation Law Found. v. Dep't of Envtl. Prot., 2003 ME 62,' 23, 823

A.2d 551. That is what the Board did in this case:

The word "necessary" is a common word that is well within the realm of understanding of the Board and the parties .... It is clear from reading the statute that the Board must engage in a factual analysis of the type and volume of hazardous substances on site; the location of these substances in relation to ground water, surface water, land and air; the present and future physical and chemical interaction of the substances with and transport through these media; and the present and future risk to public health, safety and the environment. It is this factual analysis that leads to a determination of what remedy is "necessary" to protect public health, safety and the environment.

(A.R. 344 at 11.) Implicit in the Board's decision is that "necessary" contemplates what is

required under the circumstances after considering all the relevant evidence and law. The

Board's interpretation is wholly consistent with the implementation of the Legislature's stated

findings and purpose in enacting the UHSSL:

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 substance sites are abated, cleaned up or mitigated promptly.

38 M.R.S. § 1361. Neither the lack of definition of the terms in the UHSSL, nor the fact that the

Board did not define the terms by rule prior to the adjudicatory hearing is error.

10 B. Procedural Issues: 5 M.R.S. § 11007(4)(C)(3)

Mallinckrodt identifies a number of procedural issues that it contends rendered the

Board's decision-making unlawful. See 5 M.R.S. § 11007(4)(C)(3).

1. Failure to adopt procedural rules

Mallinckrodt argues that because the Board did not adopt formal rules of practice

governing UHSSL proceedings prior to the hearing, the Board's decision is void for failure to

comply with mandatory rulemaking provisions of the Administrative Procedures Act (APA),

5 M.R.S. §§ 8001-11008 (2011). Mallinckrodt points to 5 M.R.S. § 8051, which states: "In

addition to other rule-making requirements imposed by law, each agency shall adopt rules of

practice governing the conduct of adjudicatory proceedings, licensing proceedings, and the

rendering of advisory rulings, except to the extent that such rules are provided by law." Because

the UHSSL proceeding was adjudicatory in nature, Mallinckrodt asserts that the Board should

have adopted formal rules of procedure to govern the proceeding before continuing with the

review of the commissioner's decision, citing Fournier v. State of Maine Harness Racing

Commission, 1983 Me. Super. LEXIS 167 (Sept. 16, 1983) (Alexander, J.), and Hubbard v.

Marriot, 1989 Me. Super. LEXIS 177 (Aug. 31, 1989), in support.

The Department, on the other hand, contends that the APA provides sufficient guidance

on the conduct of adjudicatory proceedings and that 38 M.R.S. § 1365(4) provides further

procedural guidelines. The Department argues that the Board may establish unique procedures

tailored to the needs of particular cases, and that in present case, the Board provided

comprehensive guidance through procedural orders, which were issued only after receiving input

from the parties. Finally, the Department notes that the APA grants the Department the

discretion to vary any agency rule as long as no prejudice results, see 5 M.R.S. § 9053(4), and

11 that the APA only requires rules of practice "except to the extent rules are provided by law,"

5 M.R.S. § 8051.

Mallinckrodt counters that "except to the extent rules are provided by law" means that an

administrative agency may not use their rule-making authority to deviate from applicable

statutory requirements, and that it was not intended to be a general exception to the mandatory

duty to adopt rules of practice. Mallinckrodt further argues that even if the Department is

correct, the APA only has minimal standards applicable to adjudicatory proceedings and the

guidelines in section 13654(4) are not rules of practice. Finally, Mallinckrodt asserts that the

issue for the Court is not whether ad hoc procedures may be appropriate in particular cases, but

1) whether the Board was required to adopt rules of practice, and 2) if so, whether the resulting

order is valid because it relied exclusively on ad hoc procedures.

Although rules of procedure specific to UHSSL proceedings may be the preferred

practice, the Department's failure to adopt specific rules prior to this case is not fatal to the

Board's decision. The essence of the appeal process is set forth in section 1365:

4. Compliance; appeal. The person to whom the order is directed shall comply immediately and may apply to the board for a hearing on the order if the application is made within 10 working days after receipt of the order by a responsible party. Within 15 working days after receipt of the application, the board shall hold a hearing, make findings of fact and vote on a decision that continues, revokes or modifies the order. That decision must be in writing and signed by the board chair using any means for signature authorized in the department's rules and published within 2 working days after the hearing and vote. The nature of the hearing before the board is an appeal. At the hearing, all witnesses must be sworn and the commissioner shall first establish the basis for the order and for naming the person to whom the order is directed. The burden of going forward then shifts to the person appealing to demonstrate, based upon a preponderance of the evidence, that the order should be modified or rescinded. The decision of the board may be appealed to the Superior Court in accordance with Title 5, chapter 375, subchapter 7.

12 38 M.R.S. § 1365(4). The timing of the appeal and the hearing, the nature of the proceeding, the

shifting burden of proof, and the availability of judicial review are clearly set forth in the

UHSSL. The UHSSL, therefore, provides Mallinckrodt and other potential responsible parties

with notice of the governing process. Additionally, the hearing before the Board is subject to the

requirements of the APA for adjudicatory proceedings that providing further notice to the parties

of the process by which the hearing will be governed. See 5 M.R.S. §§ 9051-64 (detailing

procedural requirements for adjudicatory hearings).

Consistent with the fact that the UHSSL, the APA, and the Board's numerous procedural

orders adequately informed the parties of the governing rules of the process, Mallinckrodt has

been unable to point to a single example of prejudice that it experienced as the result of the

process. Indeed, the approach that the Board followed afforded Mallinckrodt the opportunity to

shape the procedural process. The Board Chair provided Mallinckrodt with adequate notice and

an opportunity to be heard on each procedural order, and Mallinckrodt had the opportunity to

appeal procedural orders entered by the Chair to the entire Board. As explained by the Law

Court, "[i]n the absence of a controlling agency rule or a contrary requirement of statutory and

constitutional law, the procedure adopted by an administrative agency in any particular case

should receive the deferential respect of a reviewing court." Town of Wiscasset v. Bd. of Envtl.

Prot., 471 A.2d 1045, (Me. 1984). In sum, the Court concludes that by declining to adopt formal

rules before the UHSSL proceeding, the Board did not engage in an improper or unlawful

procedure.

2. Exclusion of evidence

Mallinckrodt contends that the Board erred when it denied Mallinckrodt's request to

introduce evidence of bias or political bias. In accordance with its mandate, the Board undertook

13 an independent review of the evidence presented at the hearing, and afforded no deference to the

Commissioner's reasoning or decision. See 38 M.R.S. § 1365(4.) For instance, when describing

its task, the Board wrote, "[i]n its review of the Commissioner's Order, the Board must

determine whether 'hazardous substances are or were handled or otherwise came to be located'

at the Site that 'may create a danger to the public health, to the safety of any person or to the

environment."' (A.R. 344 at 14 (quoting 38 M.R.S. § 1365(1).) Similarly, when evaluating the

remedial options, the Board observed that the "Board must find that the ordered remedy is

'necessary to terminate or mitigate the danger or likelihood of danger' to 'the public health, to

the safety of any person or to the environment."' (A.R. 344 at 25 (quoting 38 M.R.S. § 1365(1).)

Because the Board conducted a de novo hearing to determine the technical and scientific basis

for the Commissioner's order, the Board's decision to exclude the evidence was within its

discretion based on the scope of the hearing. See 38 M.R.S. § 1365(4). Because the Court

concludes that the Board properly excluded evidence of bias, the Court also denies

Mallinckrodt's motion to take additional evidence. 3

3. Cross-examination of Board staff and consultants

Mallinckrodt next argues at length that certain Board staff and consultants presented

expert testimony to the Board in violation of due process because Mallinckrodt did not have the

opportunity to cross-examine these witnesses.4 The individuals in question are Robert Gerber, an

outside consultant hired by the Board, and Jeff Crawford, a Department environmental specialist.

While the Court recognizes that ordinarily witnesses presenting evidence to the Board must be

3 At an earlier stage in this proceeding, Mallinckrodt moved to take additional evidence on the issue of bias and political bias. The Court denied the motion at that time, but left open the possibility that additional evidence might be warranted upon a full review of the record. The Court concludes, consistent with its previous ruling, that additional evidence is not required. 4 The Court agrees with Mallinckrodt that this issue has been preserved for review.

14 subject to cross-examination, see 5 M.R.S. § 9056(2), the Court does not consider Mr. Gerber

and Mr. Crawford to be expert witnesses who testified before the Board.

The documents prepared by Mr. Gerber and Mr. Crawford consist of summaries of

evidence that had already been presented to the Board. In the Court's view, this is the type of

advisory role contemplated by the APA. See 5 M.R.S. § 9055(2)(B); Forest Ecology Network v.

Land Use Regulation Comm'n, BCD-WB-AP-09-37, at 8-9 (Me. Super. Ct., May 26, 2010)

(Humphrey, C.J .). (A.R. 324.) Similarly, the Crawford excerpts cited by Mallinckrodt are in

fact part of the Board's deliberative sessions where Mr. Crawford was advising the Board based

on submitted evidence, not providing separate, independent "testimony." The Court concludes

that neither Mr. Crawford, nor Mr. Gerber provided expert testimony to the Board for which the

parties should have been afforded the opportunity to cross-examine. Accordingly, the Board did

not err when it did not allow the parties to examine Mr. Crawford and Mr. Gerber.

4. Other procedural issues related to witnesses

Mallinckrodt also raises several challenges with respect to witnesses and testimony.

Mallinckrodt first asserts that it was not permitted to challenge the credentials of expert

witnesses, resulting in "patently unqualified witnesses" being allowed to offer expert opinions on

highly technical matters. Mallinckrodt does not, however, identify a witness that it sought to

challenge as unqualified to testify, or the way in which Mallinckrodt was prejudiced by the

witness's testimony. In addition, despite its argument, Mallinckrodt had the opportunity to and

did move to strike pre-filed testimony. (See A.R. 221.) Thus, Mallinckrodt not only had the

ability to challenge witnesses' testimony, but it in fact challenged the testimony of certain

witnesses.

15 Mallinckrodt also argues that it was prejudiced by the Board's ruling that prevented the

parties from using at the hearing documents for impeachment unless the documents were

designated as exhibits before the hearing. Once again, Mallinckrodt has not identified any

document that it attempted to use at the hearing, but was precluded from doing so. More

importantly, the Board's order does not state that only documents identified as exhibits could be

used for impeachment purposes. The Eleventh Procedural Order states that it is unlikely that

additional documents for sur-rebuttal would be allowed at the hearing, but that a party could

request admission of additional documents in writing before the hearing or orally at the hearing.

(A.R. 221 at 7.). The record does not reflect that Mallinckrodt proposed the use of any such

documents.

Mallinckrodt further objects to the use of simultaneous pre-filed testimony as it relates to

the burden of proof because Mallinckrodt was required to dispute the basis for the

Commissioner's order before it knew whether there was in fact a basis for the order. The APA

specifically permits an agency to require the filing of pre-filed testimony "for the purpose[] of

expediting adjudicatory proceedings" as long as the witness is available for cross-examination.

See 5 M.R.S. § 9057(4) (2011). By permitting the parties to submit and rely on the pre-filed

testimony, the Board did not deprive Mallinckrodt of due process.

Finally, Mallinckrodt asserts that it was prejudiced by "arbitrary time limitations on

direct and cross-examination" at the hearing. However, Mallinckrodt does not identify any

witness for whom more extensive examination was wanted, but rejected. Management of the

hearing, including the imposition of limits on the length of witnesses' testimony, is within the

discretion of the Board. The Court perceives no abuse of that discretion.

16 C. Constitutional Issues: 5 M.R.S. § 11007(4)(C)(l)

Mallinckrodt also challenges the Board's decision on constitutional grounds. See 5

M.R.S. § 11007(4)(C)(l). In particular, Mallinckrodt asserts that the Board erred by refusing to

allow Mallinckrodt to introduce evidence on its as applied due process arguments, and that the

Board erred by failing to find 38 M.R.S. § 1365 void for vagueness.

1. Due process

Mallinckrodt contends that the Board was not an impartial decision-maker, thus violating

the requirements of due process. See Ward v. Village of Monroeville, 409 U.S. 57, 61 (1972);

cf. Ingerson v. State, 491 A.2d 1176, 1180-81 (Me. 1985). At the hearing, Mallinckrodt

contends it sought to introduce evidence of 1) the allegedly conflicting roles of the assistant

attorney generals who both prosecuted the case and have advised the Board in the past; 2) the

Board's reliance on technical staff; and 3) the alleged financial stake of the Board in the outcome

of the hearing. The Board refused to allow Mallinckrodt to present such evidence, focusing on

the technical and scientific basis for the remedial order. Mallinckrodt argues that the Board erred

in refusing to allow it to present the aforementioned evidence and then by rejecting

Mallinckrodt's due process arguments on the merits. (A.R. 344 at 11-12.)

The Court previously addressed some of these arguments in this decision. More

specifically, the Court concluded that the appropriate scope of the hearing was limited to the

technical and scientific basis for the remedial order consistent with 38 M.R.S. § 1365, and thus

excluding evidence of bias is not error. The Court is convinced that because of the unique nature

of the Attorney General's office in pursuing the public interest, see Superintendent of Ins. v.

Attorney General, 557 A .2d 1197, 1202 (Me. 1989), assistant attorney generals do not violate

ethical rules or violate constitutional due process requirements by serving as prosecutor and

17 advisor to the same agency in two separate proceedings. Indeed, "[a] combination of

investigative and adjudicatory functions in administrative proceedings generally does not violate

due process absent some further showing of bias or the risk of bias." Zegel v. Bd. of Soc. Worker

Licensure, 2004 ME 31, ~ 16 n.3, 843 A.2d 18. Simply, the Court does not find any violation of

due process in the Board's actions.

2. Void for vagueness

Mallinckrodt contends that "necessary," as used in 38 M.R.S. § 1365(1), is

unconstitutionally vague because it is not defined in the statute and the Department has not

promulgated rules to inform potential responsible parties as to the action that would be

"necessary to terminate or mitigate the danger or likelihood of danger" at a site. Mallinckrodt

also asserts that the Board erred by not defining key terms in the statute, including "necessary,"

"terminate," "mitigate," and "danger." Mallinckrodt's constitutional challenge to the statute is a

facial challenge, not an as applied challenge.

"[A] statute is vague 'when its language either forbids or requires the doing of an act in

terms so [indefinite] that people of common intelligence must guess at its meaning, or if it

authorizes or encourages arbitrary and discriminatory enforcement.'" Uliano v. Bd. of Envtl.

Prot., 2009 ME 89, ~ 15, 977 A.2d 400 (quoting Town of Baldwin v. Carter, 2002 ME 52,~ 10,

794 A.2d 62). A statute is "void for vagueness when [it fails] to furnish a guide which will

enable those to whom the law is to be applied to reasonably determine their rights thereunder[]

and [assure] that the determination of those rights will not be left to the purely arbitrary

discretion of the administrat[ive agency]." Rangeley Crossroads Coal. v. Land Use Regulation

Comm'n, 2008 ME 115, ~ 12, 955 A.2d 223 (quotation marks omitted) (last alteration in

original).

18 A party asserting a statute is unconstitutional bears a heavy burden: "To prevail against

the presumption that every statute is constitutional, ... the parties challenging the statute[] must

demonstrate convincingly that the statute and the Constitution conflict. [A]II reasonable doubts

must be resolved in favor of the constitutionality of the statute." Godbout v. WLB Holding, Inc.,

2010 ME 46,' 5, 997 A.2d 92 (quotation marks and citation omitted). As noted by the Board,

"'necessary' is a common word that is well within the realm of understanding of the Board and

the parties." See Forest Ecology Network v. Land Use Regulation Comm'n, 2012 ME 36,' 33,

39 A.3d 74 (reiterating that words in a statute must be given their plain and ordinary meaning).

Particularly given the statute's purpose, use of the word "necessary" does not render the statute

vague.

Additionally, contrary to Mallinckrodt's argument, the statute does not give the Board

unfettered discretion. Legislation is not an unconstitutional delegation of authority as long as

there are

sufficient standards -- specific or generalized, explicit or implicit to guide the agency in its exercise of authority so that (1) regulation can proceed in accordance with basic policy determinations made by those who represent the electorate and (2) some safeguard is provided to assist in preventing arbitrariness in the exercise of power.

Lewis v. Dep't of Human Servs., 433 A.2d 743, 747 (Me. 1981). The Legislature's stated

purpose in enacting the UHSSL provides the basic policy determinations and 38 M.R.S. § 1365

and the APA provide the necessary safeguards to prevent arbitrariness. The statute is thus not an

unconstitutional delegation of legislative authority.

E. Adequacy of Findings/Sufficiency of the Evidence: 5 M.R.S. § 11007(4)(C)(5)

Mallinckrodt argues that the Board did not adequately articulate its findings, and that the

findings do not support the Board's decision. Mallinckrodt thus contends that the Board failed to

19 provide explicit reasoning for its decision, and that the Board's decision is not supported by

substantial evidence on the record.

First, to the extent that Mallinckrodt maintains that the Board's findings are insufficient

to inform the parties of the bases of the Board's decision, Mallinckrodt's argument is

unpersuasive. In its decision, the Board reviewed and considered the Commissioner's

remediation order, and made particular findings as to each aspect of the order. For instance,

regarding the need to remove Landfill 2, the Board, after making specific findings on the issue,

wrote,

The Board finds that the removal of Landfill 2 is necessary to terminate or mitigate the danger or likelihood of danger to public health and safety and the environment from the hazardous substances present in this landfill. The Board bases its conclusions on the factual findings as set forth above, particularly the nature of the wastes placed in the landfill, the mercury measured in the geoprobe borings, the mercury found in the sediment downstream of this landfill, the undisputed need to isolate wastes from ground and surface waters, the fact that the landfill is located in a topographic depression and the waste is in contact with groundwater at certain time of the year, the lack of a synthetic cover, the location of the landfill directly adjacent to the Southerly Stream, and the groundwater flow routes. The Board is not persuaded that Mallinckrodt's proposal to install a new cap, a sheet pile wall, and a geomembrane cover underneath Southerly Stream is sufficient to protect public health and safety and the environment.

(A .R. 344 at 34-35 .) Upon completion of that analysis, the Board reached the following

conclusions:

1. The persons to whom the Commissioner's Order is directed, United States Surgical Corporation and Mallinckrodt LLC, are responsible parties under the Uncontrolled Sites Law.

2. Hazardous substances, including but not limited to mercury, carbon tetrachloride, and trichloroethylene, are or were handled or otherwise came to be located at the former HoltraChen Site in Orrington, Maine.

3. The hazardous substances at the Site may create a danger to the public health, to the safety of any person or to the environment.

20 4. The ordered remedial action, as modified by this Decision, is necessary to terminate or mitigate the danger or likelihood of danger posed by the hazardous substances at the Site to the public health, to the safety of any person or to the environment.

(A.R. 344 at 53.) In short, the Board's findings, such as set forth above, are more than sufficient

to satisfy the Board's statutory requirement that its decisions "include findings of fact sufficient

to apprise the parties ... of the basis for the decision." 5 M.R.S. § 9061.5

The Board engaged in a similar analysis for each portion of the Board's remediation

order. Based on its findings, the Board modified and upheld the Commissioner's order. Among

the most significant modifications to the Commissioner's order, the Board ordered the removal

of only two of the five landfills.6 In other words, after analyzing the hazards on the Site, and the

remediation ordered by the Commissioner, the Board independently assessed the various

remediation options, and issued a remediation order that was different from that of the

Commissioner. Given this process and the findings of the Board regarding the remediation

options, the Court is convinced that the Board satisfied its obligation to conduct a de novo

hearing, and consider the evidence without any deference to the Commissioner.

Nevertheless, Mallinckrodt asserts that the following findings or conclusions by the

Board are not supported by substantial evidence on the record:

• removal of Landfill 2;

• replacing the caps on Landfills 3, 4, and 5;

• mandatory groundwater sampling and monitoring;

5 As explained above, Mallinckrodt also argues that the Board improperly considered evidence that the Commissioner did not necessarily consider when the remediation order was issued. This argument is equally unconvincing. The appeal to the Board was a de novo proceeding, during which the Board would determine whether the remedy ordered by the Commissioner was justified. The Board's decision is based on the evidence presented during the de novo proceeding, and is not limited to the evidence presented to the Commissioner. If the review were to be limited as Mallinckrodt urges, a de novo hearing would not be necessary. 6 The Commissioner had ordered the removal of all five of the landfills. The Board ordered the removal of Landfills I and 2.

21 • independent oversight position • additional studying and modeling of the Site; and • sequencing of remedial activities . Mallinckrodt in part contends that the appropriate standard by which to evaluate each remedy is

whether it was "necessary to terminate or mitigate a danger or likelihood of danger" at the Site.

38 M.R.S. § 1365(1). Mallinckrodt argues that "necessary" means "absolutely required," such

that the Court can only affirm the factual findings and conclusions if the remedy ordered is

absolutely required based on the record evidence. If the Legislature had intended for the

remediation measures ordered to be the only way in which the threat could be successfully

addressed, the Legislature could have so specified. Simply stated, the standard is not as narrow

as that urged by Mallinckrodt. Instead, the Court previously determined that "necessary" in the

context of the UHSSL means that which is required under the circumstances after considering all

the relevant evidence and law in light of the stated purpose of the UHSSL. See 38 M.R.S. § 1361

("adequate measures must be taken to ensure that the threats posed by uncontrolled hazardous

substance sites are abated, cleaned up or mitigated promptly"). As explained further below, the

Court applies this standard in its review of the record, and concludes that the Board's decision is

supported by substantial record evidence.

While the parties, including some of the expert witnesses, disagree as to measures

necessary to remediate the Site, the Court's role is not to determine whether the remedial action

advocated by Mallinckrodt is acceptable. In other words, "[t]he court shall not substitute its

judgment for that of the agency on questions of fact." 5 M.R.S. § 11007(2). Instead, the issue is

whether the remedy ordered by the Board is supported by substantial evidence on the record.

Factual findings must be affirmed if "they are supported by substantial evidence in the record,

22 even if the record contains inconsistent evidence or evidence contrary to the result reached by the

agency." Concerned Citizens to Save Roxbury v. Bd. of Envtl. Prot., 2011 ME 39,' 24, 15 A.3d

1263 (quotation marks omitted). When assessing the sufficiency of the Board's findings,

including the Board's remediation mandates, the Court is mindful that the Board is governed by

the Legislature's directive that, "adequate measures must be taken to ensure that the threats

posed by uncontrolled hazardous substance sites are abated, cleaned up or mitigated promptly"

and

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.

38 M.R.S. § 1361.

The proceedings before the Board included nine days of evidentiary hearings and at least

six pretrial hearings/conferences. During the proceedings, the parties introduced nearly 2,000

exhibits and the testimony of more than twenty expert witnesses. Therefore, not surprisingly, the

record before the Board was voluminous. Without referencing all of the pertinent citations in the

record, the Court is convinced that the Board properly perceived that the Site presents a

legitimate threat to the health and welfare of the public and that significant remedial measures

were necessary. For instance, the Board's findings that the levels of mercury, carbon

tetrachloride, trichloroethylene and chloropicrin have been found in levels of concern in and

around the wells associated with the various landfills are plainly supported by the record

evidence.

The Board also appropriately considered a number of factors when assessing whether the

remedial action required by the Commissioner was appropriate, or whether an alternative way of

23 remediation was adequate. That is, .the Board assessed the nature of the groundwater

contamination, the age and condition of the landfills, the availability and feasibility of alternative

disposal sites, and the impact on air quality should the excavation of contaminated soil be

required. For each issue, the Board evaluated the evidence, and reached conclusions that are

supported by the record evidence, albeit often the subject of dispute between the parties.7

1. Landfill 2

Whether to remove Landfill 2, for instance, is an issue about which the parties disagree

and is exemplary of the nature of the parties' overall dispute. The Department argued that

Landfill 2 is leaking, that geoprobe wells in the vicinity of Landfill 2 were found to have

unacceptable levels of mercury, that because of some design deficiencies in Landfill 2, clean

groundwater can be contaminated when it enters the waste, and that other proposed remediation

measures are insufficient to address the problem. Mallinckrodt contends that the area around

Landfill 2, as reflected partly by groundwater samples, does not present a threat to public safety

or the environment, and that engineering controls can adequately address any concerns about

Landfill 2.

After considering the parties' arguments, the Board concluded,

The Board finds that the removal of Landfill 2 is necessary to terminate or mitigate the danger or likelihood of danger to public health and safety and the environment from the hazardous substances in this landfill. The Board bases its conclusion on the factual findings as set forth above [in the Board's Findings of

7 One of Mallinckrodt's arguments is that the cost of the remediation ordered by the Board is unnecessarily high, when compared to alternative measures that, according to Mallinckrodt, are just as effective. The cost of a particular means of remediation is only relevant to the extent that it reflects the need for, or the lack of need for, the mandated remediation. In other words, the Court can conceive of situations in which the cost of particular remediation is exorbitantly high because it includes measures that were not contemplated by any of the expert testimony, or not reasonably related to cleaning up the hazardous condition. In such a case, if the Board ordered the remediation, the Board's decision would likely not be supported by the record evidence. In this case, however, there is no persuasive evidence to support a finding that cost of the remediation ordered by the Board is indicative of unnecessary or unrelated work. The Board, therefore, properly did not consider cost as a factor when determining which remedy was necessary "to ensure that the threats posed by uncontrolled hazardous substance sites are abated, cleaned up or mitigated promptly." 38 M.R.S. § 1362 (2011).

24 Fact and Order on Appeal], particularly the nature of the wastes placed in the landfill, the mercury found in the sediment downstream of this landfill, the undisputed need to isolate wastes from ground and surface waters, the fact that the landfill is located in a topographic depression and the waste is in contact with groundwater at certain times of the year, the lack of a synthetic cover, the location of the landfill directly adjacent to the Southerly Stream, and the groundwater flow routes. The Board is not persuaded that Mallinckrodt's proposal to install a new cap, a sheet pile wall, and a geomembrane cover underneath Southerly Stream is sufficient to protect public health and safety and the environment.

(A .R. 344 at 34-35 .)

The Board's role was not to analyze and all of the different proposals as offered, and

determine which option achieved that which was minimally necessary to remediate the problem.

As discussed above, the Board's task was to determine which measures were required to address

the risk to public safety after considering all the relevant evidence and law and in light of the

stated purpose of the UHSSL. Thus, the fact that the Board rejected an engineering solution that

might have abated the hazardous conditions is not controlling. Given the nature of the concerns

in and around Landfill 2, the Board's decision to order the removal of Landfill 2 is supported by

record evidence. See Concerned Citizens to Save Roxbury, 2011 ME 39,' 24, 15 A.3d 1263.

2. Replacing the caps on Landfills 3, 4, and 5

Mallinckrodt argues that because the existing caps on Landfills 3, 4, and 5 are stable and

in good condition, the installation of new caps is not necessary. Mallinckrodt asserts that the

Board ordered the replacement of the caps because the installation of the existing caps was not

well documented, the condition is currently unknown, and therefore uncertainty about the future

ability of the caps requires replacement. Mallinckrodt argues that the mere uncertainty about the

future of the existing caps does not justify their replacement at this time. In essence,

Mallinckrodt contends that because the existing caps' respective contaminant levels can be

25 monitored adequately through the current groundwater wells, replacement of the caps is not

necessary.

The Board found, however, that given the risk of groundwater contamination from the

three landfills, the issues regarding the existing caps were of sufficient concern to warrant

replacement of the caps in order to protect health, safety, and the environment. (A.R. 344 at 38-

39.) In other words, the Board determined that the risk posed by the caps militated against

further monitoring of the caps and in favor of replacement of the caps. Although there was

conflicting testimony regarding the three landfills, given the uncertainty about the current

condition of each of the caps, and given the irregularities with the installation of the caps, the

Board's decision to replace them is supported by evidence on the record. See Concerned

Citizens to Save Roxbury, 2011 ME 39,' 24, 15 A.3d 1263 (the court "must affirm findings of

fact if they are supported by substantial evidence in the record, even if the record contains

inconsistent evidence or evidence contrary to the result reached by the agency." citing, Friends

of Lincoln Lakes v. Bd. of Envtl. Prot., 2010 ME 18,' 13,989 A.2d 1128, 1133.)

3. Mandatory groundwater sampling and monitoring

Mallinckrodt argues that there is no basis in the record to require the monitoring of

groundwater contaminants outside of the primary contaminants of concern at the Site: mercury,

chloropicrin, and carbon tetrachloride. Contrary to Mallinckrodt's argument, the record supports

the Board's monitoring requirement given the multiple contaminants at the Site that pose a risk

to public health, safely and the environment.

4. Independent oversight position

Mallinckrodt contends that the record does not support the hiring of a third-party overseer

because Mallinckrodt has been cooperative in this entire process. Mallinckrodt also argues that

26 mandatory oversight by a third party has not been previously utilized without the consent of all

parties. The Board, however, determined that given the complexity of the project, and the

limited DEP resources, a third-party inspector is necessary to address the likelihood of danger

from the project. Given the nature and extent of the remediation that is necessary, and given the

protracted process to date, the Board's decision to require oversight is supported by substantial

evidence on the record.

5. Additional studying and modeling at the Site

Mallinckrodt asserts that the need for further studying and modeling at the Site is not

supported by the record because the current Site is well characterized and has been studied

exhaustively for the last two decades. While the record reflects some conflicting testimony

regarding the condition of the Site and its effects on surrounding groundwater, the extent of the

contamination and the risk to public health, safety and the environment support the Board's

decision to require additional studying and monitoring of groundwater.

6. Sequencing ofremedial activities

Mallinckrodt argues that the sequencing of the remedial measures is arbitrary and

capricious. Mallinckrodt contends that it is unnecessary to complete the additional studies before

the removal of Landfill 1, the primary source of contamination. Landfill 1 is not scheduled to be

removed until later, and Mallinckrodt asserts that additional studies before removal of the

Landfill will unduly delay the project. Not insignificantly, the decision only includes a proposed

schedule, listing the priorities for the Site, but also gives the Department the discretion to

"determine the appropriate sequence of tasks and modify the sequence as circumstances

warrant." (Decision 64.) The Board thus incorporated the potential for some flexibility into the

sequence of the remediation efforts. Rather than reflect an arbitrariness in the process, the

27 Board's decision is rational, and reflects the practical considerations generated by the record

evidence. The Board's decision is, therefore, supported by substantial evidence on the record.

CONCLUSION

Based on the foregoing analysis, the Court AFFIRMS the Board's decision.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

the docket by reference.

Date: /6/Jt/IJ-

Entered on the Docket: /f./.fd. Copies sent via Mail _ Electronicalty Z

28 BCD-AP-11-02 Mallinckrodt US LLC, et al. v. Maine Department of Environmental Protection

Counsel for Petitioner: Jeffrey Talbert, ESQ. Preti Flarherty Believeau PO Box 9546 Portland ME 04112-9546

Counsel for Respondent: Peter B. Lafond AAG Office of the Attorney General 6 State House Station Augusta ME 04333 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND,ss Location: Portland Docket No.: BCD-Af-11-02 j '-) ( ,\/ ,. C Vi1l.- 1,/,;;.r? , .:>-Of) I / ) MALLINCKRODT US, LLC and ) UNITED STATES SURGICAL CORP., ) ) Petitioners, ) ) v. ) ORDER ) (Motion to Dismiss) MAINE DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, ) ) Respondent ) )

Respondent Maine Department of Environmental Protection moves to dismiss,1 pursuant·

to M.R. Civ. P. 12(b)(6), the independent claim asserted by Petitioners Mallinckrodt and United

States Smgical Corp. (collectively, "Mallinckrodt") for violations of 42 U.S.C.S. § 1983

(LexisNexis 2002). The Department asserts that Mallinckrodt's section 1983 action is precluded

because M.R. Civ. P. SOC provides Mallinckrodt with an exclusive and adequate remedy for all

of its claims.

Mallinckrodt filed its petition for review of agency action on September 17, 2010,

asserting various errors of both law and fact in the Maine Board of Environmental Protection's

August 19,2010, order (the "Order"). See 5 M.R.S. § 11007(4)(C) (2012) (stating grounds upon

which a cout1 may reverse or modify the decision of an administrative agency); M.R. Civ. P.

80C. Among the challenges to the Order asserted by Mallinckrodt as part of the administrative

1 Respondent initially filed this motion on October 14, 2010, but the Court stayed action on the motion pending a decision on Mallinckrodt's appeal of the Maine Board of Environmental Protection's August 19, 2010, order. The Court affirmed the Board's order in full on October 31, 2012. The Court heard oral argument on the motion on December 20, 2012. appeal were constitutional due process violations, claims of bias, and challenges to the exclusion

of evideuce of bias at the proceeding. See 5 M.R.S. § 11007(4)(C)(l), (3), (4). Mallinckrodt

also asserted, in its section 1983 challenge to the Order, a due process violation based on

structural bias. (Petition9~ 202-18.) Both the Rule 80C claims and the section 1983 claim seek

the same relief. (See Petition at 35-36.)

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) ''tests the legal sufficiency of the

complaint and, on such a challenge, 'the material allegations of the complaint must be taken as

admitted."' Shaw v. S. Aroostook Comm. Sell. Dist., 683 A.2d 502, 503 (Me. 1996) (quoting

McAfee v. Cole, 637 A.2d 463,465 (Me. 1994)). When reviewing a motion to dismiss, the court

examines "the complaint in the light most favorable to the plaintiff to determine whether it sets

forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief

pursuant to some legal theory." Shaw, 683 A.2d at 503.

The Department argues that M.R. Civ. P. SOC provides Mallinckrodt with an adequate

remedy for its claim of bias and that remedy is exclusive. "[W]hen a legislative body has made

provision, by the terms of a statute or an ordinance, for a direct means by which the decision of

an administrative body can be reviewed in a manner to afford adequate remedy, such direct

avenue is intended to be exclusive." Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981); accord

Gagne v. Lewiston Crushed Stone Co., 367 A.2 613, 618 (Me. 1976). Thus, when an "agency's

decision is reviewable pursuant to ... M.R. Civ. P. SOC, that process provides the 'exclusive

process for judicial review unless it is inadequate"' and will cause irreparable injury. Antler's

Inn & Rest., LLC v. Dep't of Pub. Safety, 2012 ME 143, ~ 14, -- A.3d ---(quoting Gorham v.

Androscoggin Cnty., 2011 ME 63, 9 22, 21 A.3d 115); Fisher, 433 A.2d at 372, 374. The

exclusivity principle applies to independent claims for relief brought with administrative appeals,

2 such as a declaratory judgment action or a section 1983 action. See Am/er's bm, 2012 ME 143,

~' 14-15,-- A.3d ---;Sold, Inc. v. Town of Gorham, 2005 ME 24, ~ 15,868 A.2d 172.

"Title 42 U.S.C.S. § 1983 provides a mechanism for a party to obtain relief for the acts of

government officials who, while acting under color of state law, ... cause the deprivation of a

federal right." 2 Antler's Inn, 2012 ME 143,1/ 14, -- A.3d ---(quotation marks omitted). In its

section 1983 action, Mallinckrodt asserts the proceeding was tainted with structural bias

resulting from conflicting roles of assistant attorney generals who prosecuted the case, but had

advised the Board in the past, and the Board's reliance on technical staff of the Department.

Mallinckrodt alleges these deficiencies resulted in a biased proceeding in violation of its right to

due process. Mallinckrodt argues that because it was prevented from presenting evidence of bias

during the administrative hearing and during the administrative appeal, the substance of its

section 1983 claim has not been addressed in any forum.

First, the Court notes that a claim alleging the exclusion of evidence is not a cognizable

section 1983 claim when an SOC process is available. See Antler's Inn, 2012 ME 143, ~ 14, --

A .3d---. Further, Mallinckrodt's claims of bias and due process violations fall squarely within

the scope of 5 M.R.S. § 11007(C)(4). See id. ~ 15. Third, the Court in fact addressed

Mallinckrodt's arguments regarding the exclusion of evidence and constitutional violations in its

Decision and Order dated October 31, 2012? See Adelman v. Town of Baldwin, 2000 ME 91, ~

2 Because the Court resolves the motion on other grounds, the Court does not address the Department's argument that Mallinckrodt has faiJed to appropriately assert any claim against a "person," i.e., an individual official, as opposed to the en lire Department. See 42 U .S.C.S. § 1983 (providing a cause of action against a "person"). 3 As explained in the October 31, 2012, Decision and Order, the Board recognized that "[i]n its review of the Commissioner's Order, the Board must determine whether 'hazardous substances arc or were handled or otherwise came to be located' at the Site that 'may create a danger to the public health, to the sarety of any person or to the environment."' (A.R. 344 at 14 (quoting 38 M.R.S. § 1365(1) (2012).). Because the Board undertook an independent review of both the conditions at the site, and the appropriate remedy, whether the Commissioner's decision was influenced by political considerations was not pertinent to the Board's determination. In the SOC

3 7, 750 A.2d 577 (explaining allegations of bias asserted in an independent claim for relief are

duplicative when those allegations are addressed in an administrative appeal). Finally,

Mallinckrodt seeks no relief in its section 1983 claim separate from the relief it sought in its

administrative appeal. See Kane v. Comm'r of the Dep't of Health & Human Servs., 2008 ME

185,' 32,960 A.2d 1196.

In sum, because the administrative process provides Mallinckrodt with an adequate and

thus exclusive remedy, because the Court addressed Mallinckrodt's challenges, and because

Mallinckrodt seeks no unique relief in its independent claim, the Court concludes that

Mallinckrodt's section 1983 claim must be dismissed. Accordingly, and based on the foregoing

analysis, the Court GRANTS the Department's motion to dismiss Mallinckrodt's section 1983

claim.

Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and Order into

Entamd on the Docket: 1£~·( ~ Coptes sent via MRII _ Etoctronk.ally ~

proceeding, Mallinckrodt challenged the Board's exclusion of the evidence of political bias, which challenge the Court rejected. The issue was thus part of the Rule 80C action.

4 BCD-AP-11-02

Mallinckrodt US LLC & United States Surgical Corporation v. Maine DEP

Attorney for Mallinckrodt: Jeffrey Talbert, Esq. Preti Flaherty POBox 9546 Portland ME 04112

Attorney for Maine DEP: Peter LaFond, AAG Office of the Attorney General 6 State House Station Augusta ME 04333

Attorney for Town of Orrington (Intervenor) Edmone J. Bearor, Esq. Rudman & Winchell PO Box 1401 Bangor ME 04402-1401

Attorney for Maine People's Alliance (Intervenor) Eric and Cynthia Mehnert, Esq. Hawkes & Mehnert Six State Street, Ste 600 Bangor ME 04401