MAINE SUPREME JUDICIAL COURT                                                      Reporter of Decisions
Decision: 2014 ME 52
Docket:   BCD-13-121
Argued:   February 11, 2014
Decided:  April 3, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, GORMAN, and JABAR, JJ.


                               MALLINCKRODT US LLC et al.

                                                   v.

                DEPARTMENT OF ENVIRONMENTAL PROTECTION

MEAD, J.

         [¶1]     Mallinckrodt US LLC and United States Surgical Corporation 1

(collectively, “Mallinckrodt”) appeal from a judgment entered in the Business and

Consumer Docket (Nivison, J.) affirming a decision of the Board of Environmental

Protection, which modified and affirmed a compliance order issued by the

Commissioner          of    the    Department       of    Environmental        Protection.        The

Commissioner’s order required Mallinckrodt to excavate material containing

mercury and other contaminants from five landfills located on a site adjacent to the

Penobscot River in Orrington, and to transfer the material to off-site landfills. The

Board’s decision modified the Commissioner’s order, requiring that Mallinckrodt

excavate only two of the landfills and that it secure and monitor the others. We

affirm the judgment.
   1
       Mallinckrodt US LLC is a wholly-owned subsidiary of United States Surgical Corporation.
2

                                            I. BACKGROUND

          [¶2] Mallinckrodt is the only viable remaining entity to take responsibility

for the site of the former HoltraChem chemical plant on the banks of the Penobscot

River in Orrington.2 One of Mallinckrodt’s corporate predecessors constructed the

plant on a 235-acre site adjacent to the river in 1967.                                   The plant used a

mercury-cell process to produce chlorine and other chemical products used

primarily in Maine’s paper industry.                       Byproducts of this process, including

thousands of tons of mercury-contaminated brine-sludge and other hazardous

waste, remain stored in five landfills located on the site.                                  Approximately

seventy-seven acres of the site are contaminated by various hazardous substances

including mercury, chloropicrin, carbon tetrachloride, and tetracholoroethene.

Hazardous substances from the site have been discharged both into the Penobscot

River and into the air.

          [¶3]      The United States Environmental Protection Agency (EPA) first

became involved in managing the site in 1986 when it entered into an

administrative agreement with the site’s owners to investigate conditions at the

site. HoltraChem Manufacturing Company, LLC, acquired the plant in 1994.

Mallinckrodt and HoltraChem cooperated with the EPA and the Maine Department



    2
        Mallinckrodt does not contest its status as a responsible party in this appeal.
                                                                                     3

of Environmental Protection (the Department) to perform a site investigation in

1995 and 1998.

      [¶4] The plant ceased operations in 2000. Since HoltraChem’s dissolution

in 2001, the EPA and the Department have dealt exclusively with Mallinckrodt on

issues related to the site, including the development of possible alternatives for

remediating the site. The Town of Orrington became the owner of the site by

virtue of a tax lien certificate filed in 2002 and subsequent foreclosure in 2003.

      [¶5] Mallinckrodt worked cooperatively with the EPA and the Department

for several years. During that time, the Department developed and considered four

options for remediating the site: Option 1 would require moving and consolidating

the contents of one of the landfills into an on-site unit without a liner; Option 2

would require moving and consolidating all five landfills into an on-site unit

without a liner; Option 3 would require moving and consolidating all five landfills

into an on-site unit with a liner; and Option 4, which was referred to as the

“dig-and-haul” remedy, would require excavating all five landfills and shipping

their contents offsite. Option 1 was attractive because it would result in the least

amount of air emissions but would achieve environmental-protection results

comparable to those provided by the other options. Option 1 would take the least

amount of time, result in fewer transportation issues, and, at an estimated cost of

$46 million, be the least expensive of the four options. In contrast, Option 4, the
4

“dig-and-haul” remedy, was the most expensive, with estimated costs exceeding

$200 million. It would also result in the highest level of mercury air emissions.

        [¶6] During the summer of 2004, the Maine People’s Alliance3 (MPA),

which had been monitoring the Department’s efforts to ensure that the site was

cleaned up, prepared to launch a media campaign to attack the delay in the cleanup

of the site. It sought Governor John Baldacci’s cooperation in its efforts. In

September 2004, the MPA and the Governor issued a joint press release calling for

the accelerated cleanup of the site.

        [¶7]    Department staff concluded that Option 3 would be the most

cost-effective and the most protective of public health. They recommended this

option to the Governor, but the Governor strongly preferred the “dig-and-haul”

remedy.        In September 2005, the Governor and the Commissioner of the

Department held a press conference announcing that the “dig-and-haul” remedy

would be undertaken.

        [¶8]     Between 2005 and 2008, Mallinckrodt continued to monitor

groundwater at the site, operate and maintain a wastewater treatment system, and

dismantle and remove infrastructure and mercury-contaminated debris; however, it

did not excavate the landfills. In November 2008, the Commissioner issued an

    3
      The 2004 press release included in the record describes the MPA as “a statewide, nonprofit,
membership organization committed to citizen democracy and economic, environmental, political and
social justice . . . [c]omprising more than 23,000 members . . . .”
                                                                                                        5

order pursuant to Maine’s Uncontrolled Hazardous Substance Sites Law (the

UHSSL), 38 M.R.S. § 1365(1)(B) (2013), requiring Mallinckrodt to excavate all

five landfills and to transfer the contaminated materials offsite in accordance with

the “dig-and-haul” remedy announced in 2005. Mallinckrodt appealed the order to

the Board of Environmental Protection and requested a hearing pursuant to

38 M.R.S. § 1365(4) (2013).4

         [¶9] Before the hearing, the Board conducted several conferences with the

parties to address procedural issues. The presiding officer issued a total of thirteen

procedural orders detailing the outcomes of these pretrial conferences and

explaining specific procedures that would be followed.5 The Board issued a

“Procedures Document,” which was developed with input from the parties and set

forth procedural guidelines relating to issues such as the location of the hearing,

serving and filing of papers, and prefiled testimony.                        Mallinckrodt moved to

dismiss the appeal on the grounds that no procedural rules had been formally

adopted, but the Board’s presiding officer orally denied the motion at a prehearing

conference. The presiding officer also denied Mallinckrodt’s request that it be


   4
      Mallinckrodt also filed a complaint in the U.S. District Court for the District of Maine challenging
the constitutionality of the Uncontrolled Hazardous Sites Law and seeking to enjoin enforcement of the
Commissioner’s order. Mallinckrodt LLC v. Littell, 616 F. Supp. 2d 128 (D. Me. 2009). Mallinckrodt
requested a stay of the administrative proceedings pending the outcome of the federal case. The U.S.
District Court dismissed Mallinckrodt’s claim on abstention grounds. See id.
   5
       Mallinckrodt unsuccessfully appealed several of these orders to the full Board.
6

allowed to present evidence of alleged political bias resulting from the Governor’s

involvement in the remedy-selection process.            However, she ruled that

Mallinckrodt would be permitted to challenge witnesses’ credibility by

cross-examining them about whether their testimony may have been tainted by

bias.

        [¶10] The Board retained an outside consultant to assist in its consideration

of technical evidence because the Commissioner, being a party to the proceeding,

was unable to serve in an advisory capacity. A Department staff member was

tasked with performing a similar consulting function. The consultants’ role was to

summarize technical information presented by the parties, identify inconsistencies

in the data, suggest questions to be asked of witnesses, and ask questions of

witnesses at the direction of the presiding officer. The consultants would not offer

testimony, and the Board ruled that, consequently, they would not be subject to

cross-examination.

        [¶11] The Board conducted a de novo evidentiary hearing over nine days in

January and February 2010. In accordance with the Board’s procedural orders,

each party prefiled its witnesses’ direct and rebuttal testimony.               Over

Mallinckrodt’s objection, witnesses testified in panels grouped according to the

subject matter of their testimony. During the Board’s deliberations, the outside

consultant provided charts and summaries of evidence that had been admitted
                                                                                                      7

during the hearing.          Similarly, the Department staff member who had been

designated to act as a consultant offered opinions and provided documents

summarizing and explaining the evidence relating to air emissions.

       [¶12] In August 2010, the Board issued an order affirming and partially

modifying the Commissioner’s order.                      As modified, the order required

Mallinckrodt to excavate and transport materials from two of the landfills, cap the

remaining landfills, develop and implement plans for extracting and testing

groundwater, and continue to monitor conditions at the site.                           Mallinckrodt

estimates that the cost of complying with the order will be approximately

$130 million.

       [¶13] Mallinckrodt appealed, and the case was accepted for transfer to the

Business and Consumer Docket, where Mallinckrodt also asserted an independent

claim pursuant to 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 113-74)

alleging due process violations.              The court affirmed the Board’s order and

dismissed Mallinckrodt’s section 1983 claim. Mallinckrodt then filed this appeal.6




   6
      It is unclear whether Mallinckrodt intends to appeal the dismissal of its section 1983 claim in
addition to the court’s order affirming the Board’s decision. Because Mallinckrodt’s briefs contain no
discussion of the substance of the section 1983 claim, or the court’s reasons for dismissing it, we deem
any arguments on this issue waived. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11, 905 A.2d 290
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” (quotation marks omitted)).
8

                                           II. DISCUSSION

A.       The Commissioner’s Authority to Issue a Compliance Order

         [¶14] Mallinckrodt argues that the Commissioner lacked statutory authority

to issue a compliance order pursuant to the UHSSL because the plain language of

the relevant provision must be read to authorize the Commissioner to take such

action only in the event of an emergency.                       Mallinckrodt contends that if the

Department wished to require remediation at the site, the appropriate remedy

would have been for the Attorney General to file an action in Superior Court.

         [¶15]     Title 38 M.R.S. § 1365(5) (2013) provides that “[t]he 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.” Title 38 M.R.S. § 1365(1) (2013) provides, in relevant part:

               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 of any
         person or to the environment, the commissioner may:

                 A. Designate that location as an uncontrolled hazardous
                 substance site;

                 B. Order any responsible party[7] dealing with the hazardous
                 substances to cease immediately or to prevent that activity and

     7
      “Responsible party” is defined, in relevant part, as “[a]ny person who owned or operated the
uncontrolled site from the time any hazardous substance arrived there.” 38 M.R.S. § 1362(2)(B) (2013).
“Uncontrolled hazardous substance site,” or “uncontrolled site,” is defined as “an area or location,
whether or not licensed, at which hazardous substances are or were handled or otherwise came to be
located, if it is concluded by the commissioner that the site poses a threat or hazard to the health, safety or
                                                                                                    9

               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.

       [¶16] The responsible party must “immediately” comply with an order

issued pursuant to section 1365. 38 M.R.S. § 1365(4). Within ten working days of

receiving the order, the person to whom the order is directed may apply to the

Board for a hearing; the Board must hold a hearing, make findings of fact, and vote

on a decision to continue, revoke, or modify the order within fifteen working days

after receiving the application.8 Id.

       [¶17] When the Business and Consumer Docket sits as an intermediate

appellate court to review an agency decision pursuant to M.R. Civ. P. 80C, we

review the agency’s decision directly for errors of law.                     Ford Motor Co. v.

Darling’s, 2014 ME 7, ¶ 15, --- A.3d ---; see also Sinclair Builders, Inc. v.

Unemployment Ins. Comm’n, 2013 ME 76, ¶ 9, 73 A.3d 1061. Matters of statutory

interpretation are reviewed de novo by looking “to the plain meaning of the statute,

interpreting its language to avoid absurd, illogical[,] or inconsistent results.”

Sinclair Builders, Inc., 2013 ME 76, ¶ 10, 73 A.3d 1061 (quotation marks


welfare of any person or to the natural environment and that action under this chapter is necessary to
abate, clean up or mitigate that threat or hazard.” 38 M.R.S. § 1362(3) (2013).
   8
     Due to the complex nature of this case, Mallinckrodt and the Board agreed to waive the Board’s
hearing and decision deadlines.
10

omitted). However, “[w]hen a statute administered by an agency is ambiguous, we

review whether the agency’s interpretation of the statute is reasonable and uphold

its interpretation unless the statute plainly compels a contrary result.” Fuhrmann v.

Staples the Office Superstore East, Inc., 2012 ME 135, ¶ 23, 58 A.3d 1083

(quotation marks omitted).

           [¶18]       Contrary to Mallinckrodt’s argument, the plain language of

38 M.R.S. § 1365(1) does not compel the conclusion that it applies only in the case

of an emergency. First, although Mallinckrodt asserts that it is not currently

“handling” hazardous substances at the site, the statute explicitly applies to sites at

which hazardous materials “are or were handled or otherwise came to be located.”

38 M.R.S. § 1365(1) (emphasis added).                       There is no dispute that hazardous

materials have been handled on the site and that they are currently located there.

           [¶19] Second, Mallinckrodt’s argument that the Legislature’s use of the

word “danger” indicates only immediate emergencies is undercut by a plain

reading of the entire provision.9 The Commissioner is empowered to make an

order when a location containing hazardous substances “may create a danger.”

Id. (emphasis added). Similarly, it may order a responsible party to take action

“necessary to terminate or mitigate the danger or likelihood of danger.” 38 M.R.S.

§ 1365(1)(B) (emphasis added). This language indicates that the Commissioner

     9
         There is no statutory definition of “danger.” See 38 M.R.S. § 1362 (2013).
                                                                                 11

may issue an order pursuant to this subsection even if the danger has not yet

materialized.

      [¶20]     Finally, Mallinckrodt argues that, because the remedy that the

Commissioner ordered was a “cleanup,” the Commissioner was only authorized to

proceed in Superior Court pursuant to 38 M.R.S. § 1365(5).            Mallinckrodt

contends that if the Commissioner is permitted to proceed pursuant to 38 M.R.S.

§ 1365(1) in these circumstances, 38 M.R.S. § 1365(5) is rendered surplusage. See

Cent. Me. Power Co. v. Devereux Marine, Inc., 2013 ME 37, ¶ 8, 68 A.3d 1262

(“All words in a statute are to be given meaning, and no words are to be treated as

surplusage if they can be reasonably construed.” (quotation marks omitted)).

      [¶21] However, “[w]e also construe the whole statutory scheme of which

the section at issue forms a part so that a harmonious result, presumably the intent

of the Legislature, may be achieved.” Id. (quotation marks omitted). Here, it is

possible to construe these provisions harmoniously.          Whereas 38 M.R.S.

§ 1365(1)(B) authorizes the Commissioner to order responsible parties to take

action to terminate or mitigate the danger or likelihood of danger posed by a

hazardous substance site, 38 M.R.S. § 1365(5) permits the Attorney General to file

suit in Superior Court to abate, clean up, or mitigate threats or hazards posed or

potentially posed by an uncontrolled site. A plain reading of these provisions

indicates that the Commissioner does not have the authority to independently file a
12

civil action in Superior Court; only the Attorney General does. We construe these

provisions as authorizing the Commissioner to unilaterally issue orders subject to

de novo review and, separately, permitting the Attorney General to file an action in

Superior Court. 10        Accordingly, we conclude that the Commissioner was

authorized to issue the order.

B.        The Administrative Procedure Act

          [¶22] Mallinckrodt argues that the Board was required to adopt rules of

practice governing UHSSL hearings and that its failure to do so rendered the

Board’s final order legally ineffectual.            The Department argues that Maine’s

Administrative Procedure Act (APA), 5 M.R.S. § 8051 (2013), requires adoption

of new procedural rules only when there is no existing statutory framework to

guide the proceedings, and that the APA itself, read in conjunction with the

UHSSL, provides adequate procedural rules. The Department further argues that,

in any event, Mallinckrodt cannot demonstrate that it was prejudiced by the

Board’s failure to adopt specific rules to govern the proceedings.

          [¶23] The APA provides, in relevant part: “[E]ach agency shall adopt rules

of practice governing the conduct of adjudicatory proceedings . . . except to the



     10
      Additionally, 38 M.R.S. § 1368 (2013), which authorizes the Commissioner to work with the
Governor and the Commissioner of Public Safety to take control of the site and to take any other
necessary action in the event of an emergency, does not suggest that the appropriate procedure in an
emergency is to issue an order pursuant to 38 M.R.S. § 1365(1).
                                                                                  13

extent that such rules are provided by law.” 5 M.R.S. § 8051. A “rule” is defined

as

      the whole or any part of every regulation, standard, code, statement of
      policy, or other agency guideline or statement of general applicability,
      including the amendment, suspension or repeal of any prior rule, that
      is or is intended to be judicially enforceable and implements,
      interprets[,] or makes specific the law administered by the agency, or
      describes the procedures or practices of the agency.

5 M.R.S. § 8002(9)(A) (2013). Excluded from the definition of rule are “[p]olicies

or memoranda concerning only the internal management of an agency” and “[a]ny

form, instruction or explanatory statement of policy that in itself is not judicially

enforceable, and that is intended solely as advice to assist persons in determining,

exercising[,] or complying with their legal rights, duties or privileges.” 5 M.R.S.

§ 8002(9)(B)(1), (9)(B)(4) (2013).

      [¶24] The Department’s governing statute declares that all of its hearings

“must be conducted in accordance with the procedural requirements of the Maine

Administrative    Procedure    Act,   Title   5,   chapter   375.”      38   M.R.S.

§ 345-A(2) (2013).    The APA establishes basic procedural requirements for

administrative hearings, including notice requirements, the requirement that a

hearing be held, exceptions to the rule that hearings must be held, provisions for

public participation, and provisions concerning the type of evidence to be admitted.
14

See 5 M.R.S. §§ 9051-9064 (2013).       In addition, some procedural guidelines

specific to UHSSL proceedings are provided in 38 M.R.S. § 1365(4).

      [¶25] Mallinckrodt urges us to conclude that this case is comparable to

New England Whitewater Center, Inc. v. Department of Inland Fisheries and

Wildlife, in which we observed that an agency’s “failure . . . to comply with the

rulemaking provisions of the [APA] is a procedural defect that we cannot overlook

even should we conclude there is no showing of prejudice.” 550 A.2d 56, 64

(Me. 1988).   In that case, the Department of Inland Fisheries and Wildlife

instituted new regulations limiting the number of passengers that could be

transported on commercial rafting trips in the Kennebec and Penobscot Rivers. Id.

at 57-58. To allocate the number of passengers that each rafting company could

carry, the Department created a new scoring system, but did not inform the

applicants of the scoring criteria. Id. at 58, 63-64. We concluded that the scoring

system met the statutory definition of a rule because it was meant to be judicially

enforceable and that it was invalid because it had not been adopted pursuant to

APA guidelines. Id. at 63-64.

      [¶26] “An agency must comply with the APA before it adopts a rule;

otherwise the rule has no legal effect.” Roderick v. State, 2013 ME 34, ¶ 9,

79 A.3d 368; 5 M.R.S. § 8057(1) (2013). Here, however, the Board did not adopt

any new rules. Its governing statute provides that its hearings are to be regulated
                                                                                 15

by the requirements set out in the APA.             See 38 M.R.S. § 345-A(2).

Mallinckrodt’s argument that no preexisting rules governed the proceeding

therefore fails. We have observed that, “[i]n the absence of a controlling agency

rule or a contrary requirement of statutory and constitutional law, the [ad hoc]

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, 1048 (Me. 1984). The thirteen procedural orders

issued by the Board over the course of the proceedings were not rules of general

applicability; rather, they provided specific guidance to the parties concerning how

the rules would be applied and how the case would progress. These are the types

of ad hoc procedural decisions we affirmed in Town of Wiscasset,

471 A.2d at 1049. “Such flexibility and adaptability, when exercised fairly, is

essential to an effective administrative response to a complex regulatory task.”

In re Me. Clean Fuels, Inc., 310 A.2d 736, 744 (Me. 1973). Accordingly, the

Board committed no error in conducting the proceedings in accordance with

statutorily provided rules rather than promulgating its own. See 5 M.R.S. § 8051.

C.    Cross-Examination of Board Consultants

      [¶27]   Mallinckrodt contends that the two consultants who assisted the

Board in evaluating technical evidence served in effect as expert witnesses and that
16

the advice they offered should have been subject to cross-examination. Before the

de novo hearing, the Board issued a procedural order explaining:

      The consultant will assist Board staff (Executive Analyst) with
      summarizing technical information presented by the parties,
      identifying data/information gaps and inconsistencies that should be
      explored, formulating suggested questions to be asked of witnesses at
      the hearing, and asking questions of witnesses at the Presiding
      Officer’s discretion.     The consultant will not be conducting
      independent studies of the site, but rather assisting the Board in its
      review of the evidence presented by the parties. The consultant will
      not offer testimony and will not be subject to cross-examination.
      Documents produced by the consultant will be available to the parties
      and included in the record.

      [¶28] Pursuant to the APA, “every party shall have the right . . . to make

oral cross-examination of any person present and testifying.” 5 M.R.S. § 9056(2).

The Board is permitted by statute to have “the aid or advice of those members of

his own agency staff, counsel or consultants retained by the agency who have not

participated and will not participate in the adjudicatory proceeding in an advocate

capacity.”   5 M.R.S. § 9055(2)(B) (2013).      Such advisors are not subject to

cross-examination. See Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, ¶ 25,

967 A.2d 676.

      [¶29] Mallinckrodt characterizes the consultants as expert witnesses. We

note that Mallinckrodt did not object to the consultants’ involvement in the
                                                                                                         17

Board’s decision-making.11 Thus, we review only for obvious error affecting

substantial rights. See Town of China v. Althenn, 2013 ME 107, ¶ 12, 82 A.3d 835.

We conclude that the Board committed no error by precluding Mallinckrodt from

cross-examining the consultants because the consultants did not offer testimony.

See Reilly v. United States, 863 F.2d 149, 159 (1st Cir. 1988) (“If . . . the advisor

was not an evidentiary source, there was neither a right to [cross-examine] him . . .

nor a purpose in doing so.”); Thomas v. Me. State Ret. Sys., No. AP-07-27,

2008 WL 4106400 (Me. Super. Apr. 8, 2008) (concluding that a memorandum

“provided in [an] advisory capacity . . . is not . . . testimony.” (quotation marks

omitted)). Although the Board’s consultants spoke on the record, they did so only

during deliberations.          The documents they provided to the Board contained

summaries of evidence that had already been admitted, and the opinions they

offered were based on information provided by the parties.                                 Because the

consultants did not serve in an advocate capacity, the Board was entitled to rely on

their advice, 5 M.R.S. § 9055(2)(B), and was not required to permit the parties to

cross-examine them.




   11
      Counsel for the Town of Orrington engaged in a colloquy with the Presiding Officer concerning the
role of the consultants, observing that having to “sit by and say nothing” as the consultants offered advice
to the Board “create[d] an odd situation.” No party specifically objected to the Board’s use of
consultants, or the Board’s refusal to allow parties to cross-examine the consultants.
18

D.    Evidence of Political Bias

      [¶30] Finally, Mallinckrodt contends that the Board abused its discretion by

excluding evidence that the Commissioner’s original order was tainted by political

bias. The Board’s fifth procedural order held that “any political pressure exerted in

the Commissioner’s process is not relevant to the Board’s [decision-making]

process,” but provided that “the parties retain the right as part of any

cross-examination to ask questions that relate to the credibility of the witness and

therefore the reliability of the testimony offered by that specific witness for

inclusion in the Board’s record.”

      [¶31] Pursuant to the APA, “every party shall have the right to present

evidence and arguments on all issues . . . .” 5 M.R.S. § 9056(2) (2013). “Evidence

shall be admitted if it is the kind of evidence upon which reasonable persons are

accustomed to rely in the conduct of serious affairs,” but “[a]gencies may exclude

irrelevant or unduly repetitious evidence.” 5 M.R.S. § 9057(2) (2013). We review

for an abuse of discretion an administrative agency’s decision to exclude evidence.

Hale-Rice v. Me. State Ret. Sys., 1997 ME 64, ¶ 16, 691 A.2d 1232.

      [¶32] In the appeal of the Commissioner’s order, the Commissioner must

“first establish the basis for the order and for naming the person to whom the order

is directed.” 38 M.R.S. § 1365(4). “The burden of going forward then shifts to the

person appealing to demonstrate . . . that the order should be modified or
                                                                                  19

rescinded.” Id. Although it would be reversible error to exclude evidence that is

relevant and highly probative, see Berry v. Me. Pub. Utils. Comm’n,

394 A.2d 790, 794 (Me. 1978), here the Board reasoned that, because it was

conducting a de novo review, evidence relating to the Commissioner’s subjective

motivation for selecting a remedy was irrelevant. The Board concluded that,

pursuant to 38 M.R.S. § 1365(4), its only objective was to determine whether the

Commissioner could meet its burden of establishing that environmental-protection

concerns provided a scientific and technical basis for the order. We accord great

deference to the Board’s interpretation of its enabling statute. See S.D. Warren

Co., 2005 ME 27, ¶ 4, 868 A.2d 210. The Board did not abuse its discretion by

determining   that   evidence   of    the   Governor’s   political   motivation   for

recommending the “dig-and-haul” remedy was irrelevant to its decision on the

merits of the Commissioner’s order.

      [¶33] Additionally, we note that the Board was not entirely dismissive of

Mallinckrodt’s concerns.    The Board’s procedural order concerning this issue

specifically provided that Mallinckrodt would retain the right to cross-examine

witnesses about whether bias affected their testimony.          This approach was

appropriate given that the Board was assessing only the scientific justification for

the remedy the Commissioner ordered. Notwithstanding Mallinckrodt’s arguments

to the contrary, this case does not present the same concerns that we addressed in
20

York Hospital v. Department of Human Services, 2005 ME 41, 869 A.2d 729. That

case involved an allegation that an agency’s decision-making process was itself

biased. Id. ¶ 12. Mallinckrodt does not assert that political influence was exerted

on the Board; we are therefore not convinced that the Board’s exclusion of

evidence relating to the Commissioner’s possible political bias amounted to an

abuse of discretion.

      [¶34] We find that Mallinckrodt’s additional arguments are unpersuasive

and do not merit further discussion.

      The entry is:

                      Judgment affirmed.



On the briefs:

      Jeffrey D. Talbert, Esq., Sigmund D. Schutz, Esq., and David
      B. Van Slyke, Esq., Preti, Flaherty, Beliveau & Pachios, LLP,
      Portland, for appellants Mallinckrodt US LLC and United
      States Surgical Corporation

      Janet T. Mills, Attorney General, and Peter B. LaFond, Asst.
      Atty. Gen., Office of Attorney General, Augusta, for appellee
      Department of Environmental Protection

      Eric M. Mehnert, Esq. and Cynthia M. Mehnert, Esq., Hawkes
      & Mehnert, LLP, Bangor, for appellee Maine People’s Alliance
                                                                       21

At oral argument:

        Jeffrey D. Talbert, Esq., for appellants Mallinckrodt US LLC
        and United States Surgical Corporation

        Peter LaFond, Asst. Atty. Gen., for appellee Board of
        Environmental Protection

        Eric M. Mehnert, Esq., for appellee Maine People’s Alliance



Business and Consumer Docket docket number AP-2011-02
FOR CLERK REFERENCE ONLY
