AUGUSTA — Maine House Democrats sent a letter to Attorney General William Schneider’s office Monday formally requesting a written opinion on whether there is a conflict between state law and Darryl Brown serving as commissioner of the Department of Environmental Protection.

House Minority Leader Emily Cain, D-Orono, said her office sent the letter after giving Republican Gov. Paul LePage, who appointed Brown, the opportunity to ask for the guidance himself.

“We would have much preferred the governor’s office to make a public, formal request to the Attorney General’s Office,” she said. “I’m not going to question why they did or didn’t, I just think we all need to know.”

Cain said it is not a partisan issue and she hopes any inquiry will end with Brown being eligible to continue serving. But she said any ongoing ambiguity could be troublesome for the department’s work.

“We expect the Attorney General’s Office to respond quickly to give us a direct and honest answer,” Cain said. “Commissioner Brown has been doing a good job; he’s been working with the Legislature. But the longer we go with this question hanging over him and the work of the department, the more potentially unfortunate the results could be.”

Last month, concerns were raised after MaineToday Media reported that language in federal law that prompted an informal investigation by the U.S. Environmental Protection Agency is also in Maine law.

According to the state statute, anyone who has received, in the two years before their appointment, at least 10 percent of their income directly or indirectly from clients who receive or apply for permits or licenses under the federal Clean Water Act may not be commissioner of the Maine DEP.

Brown owns Main-Land Development Consultants, an environmental consulting firm he founded in 1974.

He told lawmakers during his confirmation hearing on Jan. 25 that 25 percent to 35 percent of his firm’s work involved DEP permitting. He said Monday that he does not exceed the 10 percent income limit for work under the Clean Water Act.

“At this point, I am confident that I don’t exceed the 10 percent threshold,” he said.

He acknowledged the issue is complicated and said he has asked his private attorney to compose a response to the EPA’s inquiry.

“If I didn’t turn it over to my private attorney, I’d be spending hours every day trying to sort through the legalities of the request, and I just can’t be distracted from the duties here at the department,” he said.

Brown has removed himself from any of his company’s business before the department.

Steve Hinchman, an environmental attorney for the Androscoggin River Alliance, requested in early February that the EPA investigate the potential conflict. The EPA responded in mid-March by requesting information from Brown, due April 15.

Brown issued a statement to his department Monday, letting DEP employees know he is working to comply with the EPA inquiry and is committed to his work as commissioner.

The EPA’s informal investigation is meant to determine whether there is reason to begin a formal proceeding, which could result in Maine losing the authority to issue certain EPA permits if Brown is found to be ineligible.

The Maine law has broader implications, said Sean Mahoney, an attorney who is director of the Conservation Law Foundation of Maine.

“It does inject uncertainty (in the permitting process) and it makes it important that the Attorney General’s Office publicly make clear how the law applies and that they are providing that opinion to the governor’s office,” he said.

Mahoney said Schneider’s office should address the potential impact if Brown is found to be ineligible to serve as commissioner.

Brown dismissed concerns over uncertainty in the permitting process, reiterating that he is eligible to serve.

Late last month, the governor’s office said it became aware of Maine’s statutory language when Hinchman raised the EPA issue. Schneider’s and LePage’s offices declined comment Monday on whether there was ever an oral briefing on the issue.

“The silence from the governor’s office remains deafening on this issue,” said Mahoney.

 

MaineToday Media State House Writer Rebekah Metzler can be contacted at 620-7016 or at: [email protected]