There are two methods available to an aggrieved person seeking to appeal a licensing decision made by the Department of Environmental Protection's ( DEP ) Commissioner: (1) in an administrative process before the Board of Environmental Protection (Board); or (2) in a judicial process before Maine 's Superior Court. This Information Sheet , in conjunction with consulting statutory and regulatory provisions referred to herein, can help aggrieved persons with understanding their rights and obligations in filing an administrative or judicial appeal.
Legal References
DEP 's General Laws , 38 M.R.S.A. § 341-D(4), and its Rules Concerning the Processing of Applications and Other Administrative Matters (Chapter 2), 06-096 CMR 2.24 (April 1, 2003)
How Long You have to Submit an Appeal to the Board
The Board must receive a written notice of appeal within 30 calendar days of the date on which the Commissioner's decision was filed with the Board. Appeals filed after 30 calendar days will be rejected.
How to Submit an Appeal to the Board
Signed original appeal documents must be sent to: Chair, Board of Environmental Protection, c/o Department of Environmental Protection, 17 State House Station, Augusta, ME 04333-0017; faxes are acceptable for purposes of meeting the deadline when followed by receipt of mailed original documents within five (5) working days. Receipt on a particular day must be by 5:00 PM at DEP 's offices in Augusta ; materials received after 5:00 PM are not considered received until the following day. The person appealing a licensing decision must also send the DEP 's Commissioner and the applicant a copy of the documents. All the information listed in the next section must be submitted at the time the appeal is filed. Only the extraordinary circumstances described at the end of that section will justify evidence not in the DEP 's record at the time of decision being added to the record for consideration by the Board as part of an appeal.
What your Appeal Paperwork Must Contain
The materials constituting an appeal must contain the following information at the time submitted:
1. Aggrieved Status . Standing to maintain an appeal requires the appellant to show they are particularly injured by the Commissioner's decision.
2. The findings, conclusions or conditions objected to or believed to be in error. Specific references and facts regarding the appellant's issues with the decision must be provided in the notice of appeal.
3. The basis of the objections or challenge. If possible, specific regulations, statutes or other facts should be referenced. This may include citing omissions of relevant requirements, and errors believed to have been made in interpretations, conclusions, and relevant requirements.
4. The remedy sought. This can range from reversal of the Commissioner's decision on the license or permit to changes in specific permit conditions.
5. All the matters to be contested . The Board will limit its consideration to those arguments specifically raised in the written notice of appeal.
6. Presentations. The Board will hear presentations on appeals at its regularly scheduled meetings.
7. New or additional evidence to be offered. The Board may allow new or additional evidence as part of an appeal only when the person seeking to add information to the record can show due diligence in bringing the evidence to the DEP' s attention at the earliest possible time in the licensing process or show that the evidence itself is newly discovered and could not have been presented earlier in the process. Specific requirements for additional evidence are found in Chapter 2, Section 24(B)(5). Otherwise, the Board will base its decision on the existing administrative record.
Other Considerations in Appealing a Decision to the Board
1. Be familiar with all relevant material in the DEP record. A license file is public information made easily accessible by DEP . Upon request, the DEP will make the material available during normal working hours, provide space to review the file, and provide opportunity for photocopying materials. There is a charge for copies or copying services.
2. Be familiar with the regulations and laws under which the application was processed, and the procedural rules governing your appeal. DEP staff may assist with the identification of this information on request and answer questions regarding applicable requirements.
3. The filing of an appeal does not operate as a stay to any decision. An applicant proceeding with a project pending the outcome of an appeal runs the risk of the decision being reversed or modified as a result of the appeal.
What to Expect Once You File a Timely Appeal with the Board
The Board will formally acknowledge initiation of the appeals procedure, including the name of the DEP project manager assigned to the specific appeal, within 15 days of receiving a timely filing. The notice of appeal, all materials accepted by the Board Chair as additional evidence, and any materials submitted in response to the appeal will be sent to Board members along with a briefing and recommendation from DEP staff. Parties filing appeals and interested persons are notified in advance of the final date set for Board consideration of an appeal or request for public hearing. The Board may affirm, amend, or reverse a Commissioner decision or remand the decision for further proceedings. The Board will notify parties to an appeal and interested persons of its decision.
Maine law allows aggrieved persons to appeal final Commissioner licensing decisions to Maine 's Superior Court, see 38 M.R.S.A. § 346 (1) ; 06-096 CMR 2.26; 5 M.R.S.A. § 11001; & MRCivP 80C. Parties to the licensing decision must file a petition for review within 30 days after receipt of notice of the Commissioner's written decision. A petition for review by any other person aggrieved must be filed within 40-days from the date the written decision is rendered. The laws cited in this paragraph and other legal procedures govern the contents and processing of a Superior Court appeal.
A person aggrieved by an order or decision of the commissioner or board concerning an application for an expedited wind energy development may appeal to the Supreme Judicial Court sitting as the law court. These appeals to the law court must be taken in the manner provided in Title 5, chapter 375, subchapter 7. 38 M.R.S.A. § 346(4).
Additional Information
If you have questions or need additional information on the appeal process, contact the DEP 's Director of Procedures and Enforcement at (207) 287-2811.
