A person who is aggrieved by an insurance claim-related
decision made pursuant to
38 M.R.S.
§568-A may appeal that decision to the
Board. Unless otherwise established in this section, the Board and Chair will
utilize the procedure set forth in section
23 of this rule regarding appeals of
Commissioner license decisions for appeals of insurance claim-related decisions
of the Commissioner or the State Fire Marshal.
A.
Filing an Appeal. Within 30
days of the issuance of an insurance claim-related decision made by the
Commissioner or State Fire Marshal pursuant to
38 M.R.S.
§568-A (F-1), a person who is aggrieved
by such a decision may appeal to the Board for review of the Commissioner's or
State Fire Marshal's decision. The provisions of section
23(A) of this rule
apply to the filing of appeals of insurance claim-related decision made by the
Commissioner or State Fire Marshal.
B.
Dismissal of an Appeal. The
Chair may dismiss an appeal of an insurance claim-related decision made by the
Commissioner or State Fire Marshal when the Chair determines that the appeal is
untimely, the appellant lacks standing as an aggrieved person, or the appellant
fails to comply with the requirements for the content of appeals set forth in
section
24(C) of this
rule.
C.
Content of
Appeal. The written appeal must include the following.
(1) A copy of the Commissioner's or State
Fire Marshal's decision being appealed.
(2) When the appellant is a person other than
the person to whom the insurance claim-related decision was issued, demonstrate
that the appellant has standing as an aggrieved person.
(3) Describe the findings, conclusions, or
conditions of the insurance claim-related decision that the appellant believes
are in error or to which the appellant objects; and set forth the bases of the
objections or challenges and the remedy sought.
(4) Include the signatures of all appellants
in accordance with section
3(C) of this
rule.
(5) 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 a source of 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.
(7) If the appellant
requests that supplemental evidence be included in the record for consideration
by the Board, such a request, with the proposed supplemental evidence, must be
submitted with the appeal and the appellant must explain in sufficient detail
how the evidence proposed meets criteria for the inclusion of supplemental
evidence as provided in section
23(E) of this
rule.
(8) 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.
(9) Appeals 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.
(10) At the
time of filing with the Board, the appellant must provide a copy of the appeal
to the Commissioner or State Fire Marshal, depending on which agency issued the
underlying order. An appellant may contact the Board Clerk for U.S. mail and
electronic mail addresses for persons to whom a copy of the appeal must be
sent. The Board staff will provide notice of the receipt of an appeal to any
interested persons associated with the decision at issue.
D.
Service. Service must be
provided in the same manner as set forth in section
23(D) of this
rule.
E.
Record on Appeal,
Supplemental Evidence. The record for appeals decided by the Board is
the administrative record and evidence relied upon by the Commissioner or State
Fire Marshal in its review of the application, any supplemental evidence
admitted by the Chair, and additional evidence obtained from a hearing on the
appeal, if 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.
Unless otherwise specified in this section, section
23(E) of this rule
applies.
(1) The Chair may accept into
the record additional evidence and analysis submitted by Department staff or
the State Fire Marshal in response to issues raised on appeal or supplemental
evidence offered by an appellant.
(2) Within 30 days of the Commissioner's or
State Fire Marshal's receipt of a complete notice of appeal, the Commissioner
or State Fire Marshal must file with the Board those documents from the record
that the Commissioner or State Fire Marshal deems pertinent to the issues
presented in the notice of appeal, hereinafter referred to as the appellate
record. The Commissioner or State Fire Marshal must simultaneously deliver, in
paper or electronic format, a copy of the appellate record to the appellant and
other parties of record.
(3) Within
15 days of receipt of the records filed by the Commissioner or State Fire
Marshal pursuant to section
24(E)(2) of this rule,
the appellant must file with the Board those documents from the administrative
record that the appellant deems necessary to supplement the appellate record as
provided by the Commissioner or State Fire Marshal. The appellant must
simultaneously deliver a copy of the supplemental documents filed to the
Commissioner or State Fire Marshal.
F.
Alternative Dispute
Resolution. The appellant and the Commissioner or State Fire Marshal may
engage in an alternative dispute resolution in the same manner as set forth in
section
23(H) of this
rule.
G.
Procedure.
The procedure for the Board's consideration of an insurance claim-related
decision is as set forth in section
23(I) of this
rule.
H.
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 or State
Fire Marshal, affirm all or part of the decision of the Commissioner or State
Fire Marshal with modifications, add new or additional conditions, order a
hearing to be held as expeditiously as possible, reverse the decision of the
Commissioner or State Fire Marshal, or remand the decision to the Commissioner
or State Fire Marshal for further proceedings. The Board's review is de
novo and is not bound by the Commissioner's or State Fire Marshal's
findings of fact or conclusions of law made in the decision under appeal. An
evenly divided vote of the Board has the effect of affirming the Commissioner's
or State Fire Marshal'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 or State Fire Marshal's decision constitute the Board's
reasoning in the affirmation. Board decisions on appeal are subject to judicial
review pursuant to
5 M.R.S.
§
11001.
I.
Costs and Attorney Fees.
Pursuant to
38 M.R.S.
§341-D(4)(E), if the
Board overturns the Commissioner's or State Fire Marshal's decision, reasonable
costs, including reasonable attorney fees incurred by the aggrieved applicant
in pursuing the appeal to the Board from the time of a claim-related decision
forward, will be paid by the Maine Ground and Surface Waters Clean-up and
Response Fund established under
38 M.R.S.
§551. In order to receive payment, the
prevailing party must, within 30 days of the Board decision, submit to the
Department documentation substantiating its costs and fees. Parties will be
notified of the date of the meeting when the submission will be considered by
the Board. At such time, the Board will consider comments by the Commissioner
or State Fire Marshal regarding the reasonableness of the amount that has been
submitted for approval. An hourly rate for "reasonable attorney fees" is the
established hourly rate of the attorney, but may not exceed $200.00 per hour.
However, the Board has the right to approve less than the amount of the costs
or fees requested based upon its determination of what is reasonable under the
circumstances of a particular case. The decision of the Board regarding
attorney fees will be stated in the minutes of the meeting and no separate
order will be issued.
J.
Chair Authority. The Chair's authority is as set forth in section
23(J) of this
rule.
K.
Request for
Reconsideration. Requests for reconsideration will be processed in the
same manner as set forth in section
23(K) of this
rule.
