Current through 2024-38, September 18, 2024
Final license decisions of the Commissioner may be appealed
to the Board by an aggrieved person. Notwithstanding section 2(B) of this rule,
license decisions that may be appealed to the Board include approvals of permit
by rule notifications, licensing decisions on applications for new licenses,
renewals of licenses, amendments of licenses, transfers of licenses, minor
revisions of licenses, condition compliance decisions, waste transporter
licenses, and public benefit determinations.
A.
Filing an Appeal. Within 30
days of the date of a final license decision of the Commissioner, an aggrieved
person may appeal to the Board for review of the Commissioner's decision.
(1) An appeal must be submitted via U.S. mail
or electronic mail and must be addressed to:
Board of Environmental Protection
c/o Board Clerk
17 State House Station
Augusta, ME 04333-0017
Clerk.BEP@maine.gov
The Board may require the submission of the original signed
appeal documents in paper format when the appeal is filed
electronically.
(2) The
appellant must provide a copy of the appeal to the Commissioner, the licensee
if the appellant is not the licensee and, if a hearing was held on the
application, any intervenor. An appellant may contact the Board Clerk for U.S.
mail and electronic mail addresses for those to whom a copy of the appeal must
be sent. The Board staff will provide notice of the receipt of an appeal to all
persons who have requested to be notified of the license decision.
B.
Content of Appeal.
The written appeal must include the following:
(1) The signatures of all appellants in
accordance with section 3(C) of this rule;
(2) Information demonstrating that the
appellant(s) has standing as an aggrieved person to file the appeal;
(3) Identification of the licensing criterion
or standard the appellant believes was not satisfied in the Commissioner's
final license decision, the bases of the objections or challenges, and the
remedy sought;
(4) A request that
the Board hold an evidentiary hearing on the appeal if a hearing is being
requested. If a hearing is requested, the appellant must provide an offer of
proof regarding the testimony and other evidence that would be presented at the
hearing. The offer of proof must consist of a statement of the substance of the
evidence, its relevance to the issues on appeal, and whether any expert or
technical witnesses would testify.
(5) The identification of, and a copy of, any
proposed supplemental evidence that the appellant requests be admitted to the
record. The appellant must explain how the proposed supplemental evidence meets
the criteria for the inclusion of supplemental evidence as provided in section
23(F) of this rule. Any exhibits attached to an appeal must be clearly labeled
stating the date and source, and stating whether the exhibit is in the existing
record or is proposed supplemental evidence. Appeal exhibits not labeled in
accordance with this section may be rejected by the Chair. In the case of
lengthy documents, the appellant must specify the relevant portions.
(6) Electronic links may be used to provide
access to materials submitted with an appeal but may not be used as a
substitute for the submission of those materials. Electronic links to materials
not provided with the appeal will be rejected.
An appellant who does not request a hearing or propose
supplemental evidence in the written appeal is considered to have waived the
opportunity for a hearing or inclusion in the record of supplemental evidence.
The decision whether to hold a hearing is discretionary with the Board.
C.
Dismissal of an
Appeal. The Chair may dismiss an appeal for the following reasons.
(1)
Untimely Appeal. An untimely
appeal will be summarily dismissed by the Chair, unless notice of the
Commissioner's license decision was required to be given to the person filing
the appeal and the notice was not given as required. The Chair's dismissal of
an appeal for untimeliness is not subject to appeal to the full Board and is a
final agency action.
(2)
Lack
of Standing as an Aggrieved Person. The Chair may dismiss an appeal if,
based on the information presented in the appeal, the Chair decides the
appellant has not satisfactorily demonstrated that it is an aggrieved person.
The Chair's ruling to dismiss an appeal for lack of standing as an aggrieved
person is appealable by the appellant to the full Board. Any such appeal must
be received by the Board Clerk within 14 days of the date of the Chair ruling
and must include a statement articulating the objections or challenges to the
Chair ruling. The appeal of a Chair ruling to dismiss an appeal of a
Commissioner licensing decision on this basis may not contain new argument or
evidence that was not included in the dismissed appeal or underlying
administrative record. The Chair may allow the licensee to respond to such an
appeal. The appellant and the licensee will each have an opportunity to orally
address the Board regarding their arguments. The Board may affirm the Chair's
dismissal or reverse the Chair's ruling. A Board vote to reverse the Chair's
decision has the effect of reinstating the appeal.
(3)
Failure to Comply with Appeal
Content Requirements. The Chair may dismiss an appeal that fails to
comply with the requirements of this section. The dismissal of an appeal for
failure to comply with the appeal content requirements is appealable by the
affected appellant to the Board. An appeal to the Board of a dismissal for
failure to comply with the requirements for an appeal must be submitted to the
Board Clerk within 14 days of the dismissal. On appeal, the Board will review
the original appeal filing and the Chair's ruling to dismiss the appeal. The
appellant and the licensee, if the appellant is not the licensee, will be
permitted to make a brief oral argument limited to the Chair's basis for
dismissing the original appeal. The Board may affirm the Chair's dismissal or
reverse the Chair's decision. A Board vote to reverse the Chair's decision has
the effect of reinstating the appeal.
D.
Service. Once established,
all filings of appeal participants in the appeal proceeding must be copied to
the current service list of appeal participants and others as directed by the
Board.
E.
Supplemental
Evidence. Within 30 days of the issuance of the written notice of the
filing of an appeal by the Board staff, the licensee, if the licensee is not
the appellant, and any interested person identified by the Commissioner
pursuant to 38 M.R.S. §344(4-A), may comment on the admissibility of the
appellant's proposed supplemental evidence and may submit to the Board proposed
supplemental evidence addressing the issues raised in the appeal. If a person
other than the appellant offers supplemental evidence in accordance with this
section, the Board staff will notify the appellant of that proposed
supplemental evidence, and the appellant may, within 15 days of the written
notice, comment on the admissibility of that proposed supplemental evidence.
The appellant, or the licensee if the licensee is not the appellant, may
request that the Board hold a hearing regarding any supplemental evidence that
is admitted to the record. Such a request must be included with the requestor's
comments on the admissibility of that proposed supplemental evidence pursuant
to this section and must include an offer of proof consistent with that
required by section 24(B)(4).
(1) Whenever
proposed supplemental evidence is offered in accordance with this rule, the
person offering supplemental evidence must provide a copy of the proposed
evidence and demonstrate:
a) how the proposed
supplemental evidence is relevant and material to the appeal;
b) that the evidence could not have been
presented to the Commissioner during the application processing period;
and
c) that the person offering
supplemental evidence exercised due diligence in bringing the evidence to the
Department's attention at the earliest possible time, or that the evidence is
newly discovered and could not, by the exercise of diligence, have been
discovered in time to be presented during the application processing
period.
(2) The Chair
will rule on the admissibility of all proposed supplemental evidence within 30
days of receipt of all timely comments regarding admissibility of the proposed
supplemental evidence. Chair rulings on proposed supplemental evidence are not
appealable to the full Board.
(3)
The Chair may accept into the record additional evidence and analysis submitted
by Department staff in response to issues raised on appeal or in supplemental
evidence admitted by the Chair.
(4)
In in accordance with 5 M.R.S. §9058, the Board, acting through the
Chair, may take official notice of any facts of which judicial notice could be
taken, and in addition may take official notice of general, technical or
scientific matters within the Department's specialized knowledge, and of
statutes, regulations and nonconfidential agency records. Appeal participants
must be notified of all materials of which the Board has taken official notice,
and of the opportunity to contest the substance or materiality of the facts
noticed.
F.
Response to Appeal. A written response to the merits of an appeal
may be filed by the licensee, when the licensee is not the appellant; any
interested person who submitted written comment on the application; and, in
instances of multiple separate appeals of a single license decision, each
appellant may submit a response to the merits of any of the other appeals.
Persons who are entitled to submit a response to the merits of the appeal and
wish to do so must file the response with the Board as follows.
(1) If no supplemental evidence is offered by
the appellant, the licensee, or an interested person, a complete response to
the appeal must be filed not later than 60 days following the date of the
Board's written acknowledgement of receipt of the appeal.
(2) If supplemental evidence is offered by
the appellant, the licensee, or an interested person, a complete response to
the appeal must be filed not later than 20 days following the Chair's ruling on
the admissibility of all proposed supplemental evidence.
(3) Following the Chair's written decision on
the admissibility of all proposed supplemental evidence, or the filing of a
response to the merits of the appeal, no further argument or evidence may be
submitted to the Board by any person for consideration in deciding the
appeal.
(4) The Chair may extend
the procedural deadlines set forth in this section for good cause.
G.
Record on Appeal.
The record for appeals decided by the Board is the administrative record and
evidence relied upon by Department staff in its review of the application, any
supplemental evidence admitted by the Chair, and additional evidence obtained
from a hearing of the appeal, if such a hearing is held. Citations to legal
materials such as public laws, statutes, and legislative history are generally
allowed and may be considered by the Board regardless of whether they are
included in the appeal filings. Further evidence may not be provided directly
to Board members or distributed at Board meetings or hearings without specific
permission of the Chair.
H.
Alternative Dispute Resolution. If an appellant and licensee agree
to use mediation or another form of alternative dispute resolution to resolve
the appeal and so notify the Board, the Board will not hear the matter until
the conclusion of that effort, provided the participants engaged in the
alternative dispute resolution demonstrate satisfactory progress toward
resolving the issues. The Board may accept or reject any mediated or negotiated
settlement that does not include withdrawal of the appeal. The Chair may notify
appeal participants that the Board will resume processing of the appeal for
lack of satisfactory progress in resolving the issues in an appeal.
I.
Procedure. The procedure for
hearings on appeals is governed by section 7 of this rule and further governed
by Chapter 3, Rules Governing the Conduct of Licensing
Hearings.
(1) Appeals will be
considered based on the administrative record on appeal and oral argument at a
regular meeting of the Board as follows:
a)
the Board Executive Analyst introduces the appeal, summarizing the subject
matter, the appellant's basis for appeal and the relevant statutes and
rules;
b) the appellant makes a
presentation discussing objections or challenges to the Commissioner's decision
on the application;
c) when the
appellant is a person other than the licensee, the licensee is then provided an
opportunity to address the issues raised by the appellant;
d) at the Chair's discretion, interested
persons may comment on the appeal, provided any comments rely on materials in
the record; and
e) staff makes an
oral presentation of a proposed Board Order that addresses the objections and
challenges raised in the appeal and includes a recommendation for disposition
of the appeal.
(2) At the
Chair's discretion, the appellant and the licensee, if the licensee is not the
appellant, may be provided an opportunity for rebuttal. The Chair may also
allow or request that staff address questions raised by the appellant, the
licensee, or the Board.
(3) The
Chair may provide for additional procedural steps in considering an appeal to
assist the Board in understanding the record evidence and arguments on appeal.
The Board, its Executive Analyst, and counsel to the Board may at any time
address questions to any person participating in the appeal.
(4) At the Chair's discretion, the appellant,
the licensee and staff may utilize visual aids in support of oral arguments.
Permission to use visual aids must be obtained from the Chair prior to the
Board meeting at which the appeal will be considered and must consist of
materials within the administrative record.
J.
Decision on Appeal. The Board
will decide the appeal as expeditiously as possible. The Board may affirm all
or part of the decision of the Commissioner, affirm all or part of the decision
of the Commissioner with modifications, or new or additional conditions, order
a hearing to be held as expeditiously as possible, reverse the decision of the
Commissioner, or remand the decision to the Commissioner for further
proceedings. The Board's review is de novo and is not bound by
the Commissioner's findings of fact or conclusions of law made in the license
decision under appeal. An evenly divided vote of the Board has the effect of
affirming the Commissioner's decision unless a majority of Board members
subsequently vote at that meeting for another action on the appeal or to table
the matter until another meeting. In the case of an evenly divided vote, the
findings and reasoning of the Board members voting in favor of the
Commissioner's decision constitute the Board's reasoning in the affirmation.
In accordance with 38 M.R.S. §341-D(4)(A), if the Board
modifies or reverses a final license or permit decision of the Commissioner,
the licensee or permittee must implement any changes to the project necessary
to comply with the decision of the Board.
K.
Chair Authority. The Chair
has the authority to:
(1) dismiss an appeal
for the reasons set forth in section 23(B) of this rule;
(2) regulate the course of the proceeding,
set the time and place for meetings and hearings, and fix the time for the
filing of written submissions including argument, exhibits, evidence, briefs,
and reply briefs;
(3) rule on
issues of procedure;
(4) rule on
the admissibility of evidence;
(5)
administer oaths and affirmations;
(6) rule on requests for reconsideration of
prior rulings of the Chair;
(7)
vary from any procedure prescribed by this rule or the Maine Administrative
Procedure Act, chapter 375, subchapter IV, if the parties and the Chair agree
to such variation, or if the variance will achieve greater fairness or economy
and no prejudice to any party will result; and
(8) take such other action that is necessary
for the efficient and orderly conduct of Board proceedings.
L.
Requests for
Reconsideration. Any request or motion for reconsideration of a prior
Chair ruling must be submitted in writing to the Chair within five working days
of the underlying ruling and must identify the basis for the request. The
decision to act on the request for reconsideration is in the sole discretion of
the Chair. A request that is not acted on by the Chair within 30 days is deemed
denied. The Chair may allow other appeal participants to respond to a request
for reconsideration. The Chair's disposition of a request for reconsideration
is not a final agency action and is not appealable to the full Board.
M.
Application for a Stay. The
filing of an appeal of a Commissioner licensing decision to the Board does not
stay the license decision. An application for a stay of a Commissioner
licensing decision must be made to the Commissioner. An application for a stay
of a licensing decision rendered by the Board must be made to the Board through
the Chair. An application for a stay of a Commissioner licensing decision
submitted to the Board in the first instance or simultaneously to the Board and
the Commissioner will be referred by the Board to the Commissioner for a
decision. In the case of a Commissioner decision on a stay request, no action
of the Board is necessary to exhaust the administrative remedies for purposes
of the Maine Administrative Procedure Act and 5 M.R.S. §11004.
N.
Court Remands to Board for Further
Proceedings. Except as otherwise directed by court order or prescribed
by statute or other applicable Department rule, the Board and Chair will
utilize the authorities and procedures set forth in this rule to establish the
process and scope of Board proceedings following judicial orders of
remand.
