Leave it to Ed Muskie, almost 15 years after his death, to toss a monkey wrench into Gov. Paul LePage’s environmental policy.

“Ed Muskie wrote the Clean Water Act,” said Steve Hinchman, an attorney for the Androscoggin River Alliance, in an interview this week. “And when he did, he understood that procedural limits are every bit as important as the limits on pollution.”

In other words, the legendary Maine senator had more than just the serial polluters on his mind when he wrote the landmark Clean Water Act way back in 1972. He also was worried about the regulators responsible for stopping them.

Regulators like Darryl Brown, installed by LePage just last week as commissioner of Maine’s Department of Environmental Protection.

Late Monday, the Androscoggin River Alliance petitioned the federal Environmental Protection Agency to investigate whether Brown, the owner of Maine-Land Development Consultants Inc., is now running the DEP in violation of the Clean Water Act’s conflict-of-interest clause.

It’s a straightforward requirement: Anyone who has derived more than 10 percent of his or her annual income from EPA water-permit holders or applicants within the prior two years cannot direct a state agency responsible for issuing those permits.

It’s not just a federal matter: Virtually the same language can be found in a Maine statute describing who “may not serve as commissioner” of the DEP.

Now, we already know that Maine’s DEP, under a longstanding letter of understanding with the EPA, handles all Clean Water Act permitting in this state.

We also know, based on his own testimony at a legislative confirmation hearing last month, that Brown’s development company brings an average of eight projects each year to the DEP and that, as Brown put it, “25 to 35 percent of Maine-Land’s work is DEP-related.”

Hence, Hinchman and others have good reason to ask whether Brown, who has put his company in a blind trust but is still its sole shareholder, received at least 10 percent of his income in either of the last two years from Clean Water Act permit holders or permit applicants.

“We hope that you do not exceed the (10 percent) limit, but please note that if you do Maine could forfeit its authority to administer the (permits) under the Clean Water Act,” Hinchman wrote in a letter to Brown. “To prevent that occurrence, we would respectfully request that you resign the post of Commissioner.”

We’d best not hold our breath on that one.

Contacted this week, Brown said he is “absolutely confident” that his and his company’s finances, if they in fact are dissected by the EPA, will pass muster.

Maine-Land Development Consultants is a “tiny” company of 11 employees, Brown noted. And while its workload is heavy on things like land surveying, he added, the firm’s involvement in issues pertaining to Clean Water Act permits is “not terribly significant.”

None of that matters, Hinchman argues.

Take, for example, the Oxford resort casino, approved last fall in a statewide referendum and now in the early stages of development.

According to a letter Dec. 9 “to whom it may concern” from Oxford resort casino President Robert Lally, Maine-Land Development Consultants “is authorized to pursue local, state and federal permitting (for the $165 million project), including signing application forms.”

That would include a Clean Water Act “general permit” issued by the DEP, Hinchman said. And while Brown has put Maine-Land Development Consultants into a blind trust under the control of its new president, Robert Berry III, Hinchman maintains that the new commissioner is by no means out of the ethical woods.

Even if Brown were to fully divest himself of his ownership of Maine-Land Development Consultants (which he hasn’t), Hinchman maintains that “you cannot cure the conflict by divestiture. The rule looks at the current year and the two prior years — clearly an attempt to stop the revolving door between regulated industries and government.”

And while Brown may maintain that Clean Water Act compliance is “a pretty small piece” of the Oxford casino project, Hinchman said that’s not the point.

“A conflict occurs based on the economic relationship between the commissioner and the regulated companies,” Hinchman said. “Thus, it does not matter why they are paying him, only that he receives income from the very companies he is supposed to regulate.”

Which brings us back to a couple of yet-to-be-answered questions: How much of Brown’s personal income over the past two years came from clients — including but not limited to the Oxford resort casino — who either hold or have applied for Clean Water Act permits?

And if more than 10 percent of that income came “directly or indirectly” (as the law states) from those clients, what’s he doing in the corner office of the DEP?

And while we’re on the subject, was Brown even aware of the Clean Water Act provision before raising his hand and swearing to protect Maine’s environment?

“I was aware of a lot of things,” Brown replied. “This particular piece, I wasn’t.”

So now we wait — with every Clean Water Act permit issued henceforth by the DEP hanging in the balance.

David Deegan, a spokesman for the EPA’s regional office in Boston, confirmed in an e-mail this week that the agency has received the Androscoggin River Alliance’s petition and “will carefully and expeditiously review the best available information regarding the concerns raised in the petition.”

Hinchman, who until recently was a staff attorney for the Conservation Law Foundation, now has a private practice in environmental and energy law and volunteers his services for the seven-year-old alliance.

Contrary to claims by Dan Demeritt, LePage’s communications director, and other LePage loyalists, Hinchman said this is not a case of playing “gotcha” on the heels of the Maine Senate’s 29-6 vote to confirm Brown.

Rather, he said, Brown’s own testimony to the Legislature’s Environment and Natural Resources Committee about Maine-Land Development Consultants’ recent dealings with the DEP sent Hinchman diving into the law books he keeps on his desk.

“After I heard that, I said to myself, ‘That’s got to be illegal,’” Hinchman said. “I just picked up (the Clean Water Act) and started flipping through it, reading section by section. And I was about 40 pages into it and, bingo, there it was.”

Truth be told, Hinchman said, he wishes he hadn’t stumbled across the easy-to-find federal and state laws that others should have noticed weeks if not months ago. He now has a client with business before the DEP — and the last thing he needs is to poke the new comish in the eye as he tries to get that project approved.

“I did not welcome finding this out,” he said. “Because now I have to stand up to the emperor and ask, ‘Are those clothes you’re wearing?’“

But Brown’s new role as Maine’s top environmental cop, following LePage’s 57 “regulatory reform proposals” aimed at the heart of Maine’s precious environment, left Hinchman no choice but to speak up.

Just like Ed Muskie, who grew up in Rumford on the banks of the then-polluted Androscoggin River, would have done?

“A small citizens group from (Muskie’s) very river is the one in this whole process that stands up and points this out,” Hinchman said. “It is very ironic.”

It’s also better late than never.

Columnist Bill Nemitz can be contacted at 791-6323 or at:

[email protected]