06-096 C.M.R. ch. 2, § 23 - Appeal to the Board of Commissioner License Decisions

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.

Notes

06-096 C.M.R. ch. 2, § 23