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EPA looks into potential conflict of interest with DEP commissioner
AUGUSTA — A site plan permit for the Oxford casino could be held up as the U.S. Environmental Protection Agency investigates a potential conflict of interest for Darryl Brown, commissioner of the Maine Department of Environmental Protection.
Brown owns Main-Land Development Consultants of Livermore Falls, the company hired by Black Bear Entertainment to plan the site work for the resort casino approved by voters in November.
On Thursday, as Black Bear Entertainment got approval from the Maine DEP for its site-plan permit for the casino, the EPA sent a letter to Brown's office asking for a response to the charge that his position constitutes a conflict of interest under Clean Water Act guidelines.
In a letter to Brown's office, the EPA requested financial information from Brown's company to see whether Main-Land Development makes a significant amount of its money from permit holders and applicants. Brown has until April 15 to submit the paperwork.
The EPA's informal investigation comes after a petition from the Lewiston-based Androscoggin River Association and its lawyer, Stephen Hinchman. In a letter Hinchman sent to the EPA, he wrote that Brown's position could disqualify the Maine DEP from issuing permits through the National Pollution Discharge Elimination System.
Hinchman said the potential conflict extends beyond Black Bear's permit to all DEP decisions related to the Clean Water Act.
"If a conflict exists, DEP would have to essentially cleave itself in two, removing all Clean Water Act functions from Mr. Brown's oversight,” Hinchman said Friday in a release. “That, in turn, would require legislative action and a major budget increase."
Hinchman said the Androscoggin River Association had taken its concerns to the state after Brown's appointment as DEP commissioner. “The state utterly ignored our comments,” Hinchman said.
Brown's office did not reply Friday to calls for comment, but Adrienne Bennett, press secretary to Gov. Paul LePage, released a statement saying Brown had taken care to remove himself from potential conflicts of interest. He stepped down as president of Mainland when he accepted the position at DEP.
“As part of his confirmation, Darryl Brown established a permit-review system that puts permitting decisions affecting his former clients in the hands of a panel of three division directors at DEP,” Bennett said in the release. “(Neither) Commissioner Brown nor his appointees have seen or had any involvement in the casino project permit.”
According to Hinchman, that isn't enough to eliminate the conflict.
“Even if he recuses himself from the permit decision itself, Commissioner Brown stands to directly and substantially profit from his company's work with the rules, staff and administrative process he oversees,” Hinchman wrote in the letter to the EPA.
Hinchman included a 1973 general counsel opinion on EPA guidelines for a conflict of interest that includes a passage about firms whose income comes from clients subject to Clean Water Act standards.
“If the person is an owner or partner of the firm, such that he receives a direct share of the firm's profits, then he receives income from clients who are or may be permit holders or applicants,” he wrote.
If “a significant portion of that firm's income” comes from permit holders or applicants, the owner or partner would be disqualified.
In a letter to Brown, EPA Regional Counsel Carl F. Dierker said that portion of the 1973 decision “may be particularly relevant.”
According to the EPA, if a conflict is found, it could be resolved by delegating Clean Water Act decisions to a state official with no conflict of interest.
Main-Land's website says Brown “was the founder and is the sole stockholder of Main-Land Development Consultants, Inc.”
Peter Martin, spokesman for Black Bear Entertainment, said the company is still waiting on permit approvals from the Army Corps of Engineers and the Maine Department of Transportation.
Black Bear still needs Army Corps approval before starting site work, so the EPA investigation isn't holding up the project yet.
Martin said Black Bear still expects to open late in the first quarter of 2012.