dissenting (WER-NICK, J., joining in the dissent).
I respectfully dissent both as to the conclusion reached by the majority and the reasoning by which such conclusion was reached.
The majority opinion concludes that Ethyl Corporation is not entitled to a certificate from the Board of Environmental Protection, which certificate is prerequisite to a tax exemption under the provisions of 36 M.R.S.A. § 656(l)(E)(i) and 36 M.R.S.A. § 1760(29).
There is statutory direction given the Board of Environmental Protection to issue the requisite certificate to an applicant who demonstrates that it has purchased and installed a water pollution control facility, i. e.,
“appliance, equipment, machinery, installation or structures installed, acquired or placed in operation primarily for the purpose of reducing, controlling or eliminating water pollution caused by industrial waste”.
The majority opinion reasons that the Board acted correctly when it denied the tax exemption certificate to Ethyl Corporation. It concedes the Board held no hearing, nor did it record any reason for the denial of the exemption certificate. It merely made the conclusionary decision that the tax exemption certificate was denied. The majority opinion approves this action.
As earlier indicated, I do not agree that the ultimate conclusion of the Board of Environmental Protection is justified.
The majority’s conception of the manner and scope of judicial review of the kind of administrative determination here made by an agency charged with responsibility to understand and evaluate complex and scientific information is not acceptable to me.
In Maine Motor Rate Bureau, Me., 357 A.2d 518 (1976), despite the existence of a hearing and formal findings by the administrative agency, we found ourselves in a predicament similar to that of the present situation. We there stated categorically that were the court to supply a rationale by which an ultimate administrative determination may be supported, the court would improperly encroach upon the administrative domain. We therefore remanded the case to the Public Utilities Commission1 with specific instructions that it clarify and amplify the findings and reasoning found by our judicial review to be insufficient in terms of legal requirements.
In so acting, we relied on principles which have been developed in recent decades by *1080the Supreme Court of the United States concerning the appropriate manner and scope of judicial review of action of federal administrative agencies. See: Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1942); Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Topeka & Santa Fe R. Co. V. Wichita Board of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973).
Following the reasoning of the highest Court of the land, we embraced as a sound principle to govern the judicial review of administrative action that the administrative body must adequately set forth, initially, the subsidiary grounds underlying its ultimate decision,
“ ‘[f]or we must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ ” (p. 526 of 357 A.2d, citing Topeka & Santa Fe R. Co., supra)
This sensible rule has received the overwhelming support of other federal and state courts. See : applicable authorities as collected in 2 Davis, Administrative Law Treatise § 16.01, p. 435 (1958).2
The majority’s approach, here, also trenches upon more generalized administrative law principles announced in other recent cases of this court.
In State ex rel. Brennan v. R. D. Realty Corp., Me., 349 A.2d 201 (1975), we disapproved total bypass of administrative proceedings in regard to the very agency now before the court, reasoning:
“One of the obvious results of the creation of the Maine Board of Environmental Protection is that an agency has been created which has developed an expertise in resolving the special problems with which it is, by law, required to become concerned. Merest prudence suggests that the courts ought to have the benefit of the . . . [Board’s] prior expert evaluation . . . before it intervenes in a controversy over which the . [Board] has jurisdiction”, (p. 207 of 349 A.2d)
See also: Gagne v. Lewiston Crushed Stone Company, Inc., Me., 367 A.2d 613 (1976).
The reviewing court lacks the “benefit of the . . [Board’s] prior expert evaluation”, however, when it has received only the Board’s naked ultimate determination. Further, when the court supplies what it conceives to be the line of reasoning the administrative body could properly utilize, were that agency to have exercised its expertise, the court would invade the administrative province and defeat its own announced judicial policy of deference to administrative expertise.3
Professor Davis treats those cases without a hearing as different from the others, and notes that in practice courts sometimes require less of informal agencies. Davis, supra, § 16.00, p. 559 (1970 Supp.). He nevertheless argues that the purposes furthered by requiring administrative articulation of its acts are even more important where no hearing took place.
I agree.
Cited as goals to be achieved by administrative clarification of reasoning processes *1081are the following: (1) most prominently, the facilitation of intelligent judicial review; (2) prevention of judicial usurpation of administrative functions; (3) inducing more careful agency consideration of the issues before it; (4) informing parties so that they may better evaluate the need for, and basis of, further action; and (5) curbing administrative tendencies to act beyond statutorily conferred authority. 2 Davis, supra § 16.05, p. 444. Additionally, the articulation of rationales in past cases will provide the agency, and those appearing before it, with precedents to guide future action and promote consistency.
It is plain that these purposes are served whether or not agency action follows a hearing. In fact, administrative clarification of its rationale will be more beneficial where the reviewing court has not even a hearing transcript before it. Davis, supra § 16.00, p. 561 (1970 Supp.). See also: Beck v. Securities & Exchange Commission, 413 F.2d 832 (6th Cir. 1969); Hanly v. Securities & Exchange Commission, 415 F.2d 589, 598-99 (2nd Cir. 1969).4
Aside from my disagreement with the methodology of the judicial review taken by the majority, I likewise disagree with many of the conclusions reached by the majority in arriving at the ultimate conclusion that the Board action must be sustained.
I agree with the majority opinion that the bark burner installed by appellee “serves two basic purposes, or functions, in the paper manufacturing operation at Oxford Paper Company: it disposes of waste bark and it produces steam.”
It is with the reasoning which follows these conclusions that I cannot agree.
As the majority opinion points out, Oxford Paper Company (Ethyl’s predecessor in title) had historically created huge quantities of bark in its paper producing process. Always heretofore, this bark had been hauled away and used as landfill in the Rumford-Mexico area. Again, as the majority opinion recognizes, this bark ultimately disintegrates and, in the disintegration process, creates water pollution because
“decaying organic material is discharged, or ‘leached’ into nearby streams. As a result, the acid level of the streams increases, their oxygen content decreases, and fungi and slime accumulate in the water. In addition, the decomposing bark gives off acetic acid gases which are the cause of offensive odors in the vicinity of land fill sites.”
There is no gainsaying that air and water pollution have reached alarming proportions. Without exception, each of our states in the United States has taken steps to abate pollution.
At least thirty-one states use tax relief as an incentive for the installation of industrial pollution abatement facilities.
Maine is one.
Although the use of tax incentives for the purpose has been criticized [Ae Ohio St.L.J. 860 (1972)], our Legislature in its wisdom has utilized tax incentives as an appropriate and effective means of encouraging pollution abatement by industry.
In the past, Oxford Paper Company has occasioned substantial pollution of both air and water in its production of paper. Waste bark has, by the simple and natural *1082process of decomposition, created pollution of both water and air. The waters into which acid is discharged or ‘‘leached ” have increased their acid level alarmingly. The hydrogen-ion concentration, or pH, is substantially below tolerable levels in the waters surrounding the area where the bark was deposited as landfill. By putting the bark burner into operation, there can no longer be any acetic acid created by future operations of Ethyl’s Oxford Paper Company mill nor any decaying organic material “leached” into streams, thus increasing the acid level of such streams and decreasing the oxygen content of such waters.
In my view, Ethyl has demonstrated it has assembled a facility, qualifying for a certificate of tax exception from the Board of Environmental Protection, if the basic and primary function of the facility, i. e., the bark burner, was to abate water pollution. Statler Industries, Inc. v. Board of Environmental Protection, Me., 333 A.2d 703 (1975).
As I see it, a water pollution control facility is not limited to machinery which will take industrial waste which is already mixed with the water so as to become a part of it and remove it from the water.5
The key to the majority opinion’s conclusion that Ethyl is not entitled to a certificate of tax exemption is found in that portion of the opinion which reads as follows:
“Bark itself is merely a ‘substance capable of polluting the waters of the State’, § 1760(29)(C) (emphasis added). Whether bark in fact causes water pollution is entirely dependent on what is done with it after it has been separated from the logs. Used as a landfill, for example, bark is a demonstrable source of water pollution.
“Section 1760(29)(B), as we have interpreted it, specifically requires that a facility be utilized ‘primarily for the purpose of reducing, controlling or eliminating water pollution caused by industrial waste’ (emphasis added), as distinguished from ‘industrial waste’ itself. The goal at which the statute is directed is not the abatement of ‘industrial waste,’ but the abatement of ‘water pollution.”'
With all due respect to the reasoning of my colleagues, I think the simple answer to this latter statement is that it is clearly demonstrated that future water pollution is eliminated by the burning of industrial waste, i. e., bark.
The majority opinion continues:
“The boiler in no way abates the extensive water pollution which has been created by the piles of bark that Ethyl has dumped throughout the Rumford-Mexico area over the years. That pollution will persist, in Ethyl’s estimation, for a period of at least twenty years.”
I find nothing in the legislation which permits a conclusion that the certificate may properly be issued only when it is found that the facility is used for the primary purpose of cleaning up a polluting agent in the water which was created many years before. The existence of the bark in the Rumford-Mexico area which was used as landfill many years ago has no bearing, it seems to me, on whether or not Ethyl is entitled to the issuance of the certificate if the Board, on remand, finds that at great expense Ethyl has installed and is utilizing equipment operated primarily for the purpose of eliminating water pollution which would be caused by industrial waste, i. e., bark, in the future if not disposed of by the bark burner.
The Legislature, by creating the Board of Environmental Protection, established an agency which it intended should develop an expertise in resolving the special problems with which it is by law required to become concerned. To adopt a hypothesis, as the majority opinion does, (which hypothesis is in my opinion not correct) and thereby supply the reasoning which the Board might have used (though there is clearly nothing to indicate they did use such reasoning, or would want to), is to effectively bypass the important expert analysis of the Board which was intended by the statute.
*1083A bypass in this case ought not to be countenanced.
I would remand the case to the Superior Court with instructions to remand to the Board of Environmental Protection with specific instructions to reconsider the application and make specific findings of fact and conclusions of law thereon.
. In the Maine Motor Rate Bureau case the statutory appeal procedure utilized did not involve the intermediate review of the Superior Court. See: 35 M.R.S.A. § 303.
. Even one authority who questions the utility of remand to the administrative agency, because of likelihood that the agency will merely re-rationalize the same result, concludes that the rule may well serve its purpose by improving future administrative practice. Jaffe, Judicial Control of Administrative Action at 589, 717 (1965).
. The majority erroneously analogizes, at note 13, the judicial substitution of its rationale for that of the agency to an appellate court’s substitution of correct legal reasoning to support the result of a lower court. It was long ago recognized that the two situations are very different — the reviewing court may not supply a different rationale for an administrative conclusion, for to do so the court would not be acting in the area in which it is expert — determining law — but would be encroaching upon the expertise which is the province of the administrative function. For various reasons, the administrative agency may not want to use the rationale which the court may conceive that it could have used. Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1942). See also: Maine Motor Rate Bureau, Me., 357 A.2d 518, 527 (1976).
. The Board argues, here, that the enactment of 1 M.R.S.A. § 404-A (effective October 3, 1973), cited by the majority at n. 11, will resolve future problems similar to that before us by requiring factual findings and reasons of the administrative agency.
This argument is not persuasive. Maine Motor Rate Bureau itself demonstrates that to require findings and reasons does not ensure adequate administrative statements. In fact, in the leading cases ordering remand for administrative clarification the reviewing court has had the benefit of some findings and reasons. Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1942); Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). See also: Northeast Airlines, Inc. v. Civil Aeronautics Board, 331 F.2d 579 (1st Cir. 1964); Friendly, the “Limited Office” of the Chenery Decision, 21 Adm.L.Rev. 1 (1968). The impact of 1 M.R.S.A. § 404 — A, if complied with, will often be to substitute inadequate findings and reasons for none at all. Northeast^ Airlines, Inc., supra.
. I find it very difficult to imagine any facility which would qualify for a tax exemption certificate if such interpretation or legislative intention is correct.