01-001-10 Me. Code R. § 3

Current through 2024-51, December 18, 2024

Section 001-10-3 - COMPLAINT INVESTIGATION

1. Department Response to Complaints

Upon receipt of a complaint concerning a farm or farm operation an agricultural compliance officer shall be responsible for responding to the complaint, conducting an investigation into the complaint, opening and maintaining a case file throughout the complaint resolution process, making findings and recommendations concerning the complaint, and preparing an investigation report. The case file shall remain open until the matter has been resolved to the satisfaction of the Commissioner or has been referred for enforcement. A communication received by the Department concerning a farm or a farm operation will not be considered a complaint unless the complainant is identified by name and home address.

2. Contact with Person Responsible for the Farm Operation

As soon as practicable following the receipt by the Department of a complaint concerning a farm or farm operation, the Department shall make a good faith attempt to contact the responsible party, by telephone or in person, in order to provide notification of the complaint. In the event the department is unable to contact the responsible party by telephone or in person, the department shall provide written notification to the responsible party by certified mail to the last known address.

3. Notification Requirements

Notification to theresponsible party shall include at a minimum, the name of the complainant, the date the complaint was received, and the nature of the complaint. The Department shall, to the extent possible, provide information sufficient to allow the responsible party to identify and address any agriculture related problem or problems that are the subject of the complaint.

4. Investigation

The Department shall conduct an investigation into all complaints involving a farm or farm operation.

A. Scope of Investigation

(1) The initial investigation shall include an on-site inspection of the farm operation or operations pertinent to the complaint and a review of any relevant documents or records.

(2) The agricultural compliance officer may conduct interviews with the responsible party, the complainant, neighboring landowners, or any other person who may have information pertaining to the investigation.

(3) The agricultural compliance officer may conduct any additional investigation that he/she believes to be warranted including, but not limited to, additional site inspections.

(4) The agricultural compliance officer shall make reasonable efforts to confer and work with the responsible party in order to obtain relevant information and to develop best management practices (BMPs) that, in the agricultural compliance officer's best professional judgment, are effective and efficient. In determining BMPs, the agricultural compliance officer shall take into consideration input from the responsible party to the greatest extent practicable.

(5) If during the investigation of a complaint, the agricultural compliance officer observes or otherwise becomes aware of any other agriculture related problem, the agricultural compliance officer shall have the authority to conduct an investigation into that agriculture related problem.

B. Duration of Investigation

The investigation shall continue until the agricultural compliance officer makes a determination whether an agriculture related problem exists, makes findings, makes recommendations if warranted, sends a letter to the responsible party pursuant to section 3.7(A)(2) and completes an Investigation Record pursuant to section 3.8. The agricultural compliance officer may reopen an investigation at any time if additional information concerning the case becomes available.

C. Site Inspection

The agricultural compliance officer, or a qualified designee, shall inspect any aspect of the farm or farm operation that in his/her best professional judgment relates to the complaint or to any other agriculture related problem the agricultural compliance officer is aware of.

D. Involvement of Technical Experts

The agricultural compliance officer may consult with and seek assistance from experts on any issue relevant to the complaint concerning the farm or farm operation, or any other agriculture related problem discovered during the investigation.

E. Follow-Up Visits

The agricultural compliance officer may make follow-up visits to the farm or farm operation to determine if best management practices have been implemented, and to determine if any further action related to the agriculture related problem(s) previously investigated will be required.

5. Determination, Findings and Recommendations

Prior to concluding the investigationthe agricultural compliance officer shall make a determination, findings and recommendations.

A. Determination

As part of an investigation the agricultural compliance officer shall make a determination as to whether an agriculture related problem exists on the farm.

B. Written Findings

Prior to concluding the investigation the agricultural compliance officer shall make written findings. The written findings shall include a description of the investigation, a description of the farm operations that relate to the complaint, a description of any other condition or activity on the farm that, in the best professional judgment of the agricultural compliance officer, is relevant to the investigation and the complaint, and whether an agriculture related problem exists on the farm or farm operation. Additional findings may include, but are not limited to:

(1) Whether the farm or farm operation is using and maintaining appropriate BMPs;

(2) Whether the farm or farm operation is causing, or may cause, an undue environmental impact;

(3) Whether the farm or farm operation is causing any undue adverse impact on neighboring residents and landowners.

C. Recommendations

If the agricultural compliance officer determines that an agriculture related problem exists, then the agricultural compliance officer shall make recommendations prescribing BMPs developed pursuant to section 3.6 of these rules, including a plan for implementing those BMPs. The recommendations shall be for the purpose of remedying any agriculture related problems determined to exist on the farm or that are part of the farm operations.

(1) The recommendations shall be based on the best professional judgment of the agricultural compliance officer, the findings of the investigation, and all reasonably available relevant information. The recommendations are not required to meet the satisfaction of the complainant or the responsible party;

(2) The recommendations shall state with reasonable specificity:

(a) The BMPs, developed pursuant to section 3.6 of these rules, to be implemented;

(b) The steps that the responsible party must take to implement BMPs;

(c) Any requirements or restrictions as to how the steps for the implementation of BMPs must be taken;

(d) The date by which those steps must be completed; and

(e) Any follow up investigation that may be needed.

D. Referral

If in the judgment of the Commissioner the matter complained of, or any other matter discovered during the investigation, warrants referral to any other state agency or enforcement authority, or to any local or municipal body or enforcement authority, the Commissioner may refer the matter and provide all relevant information and materials within the custody and control of the Department as permitted by applicable laws.

6. Development of Recommended BMPs

Upon a determination that an agriculture related problem exists, the agricultural compliance officer, or a qualified designee, shall develop BMPs designed to address the agriculture related problem. The agricultural compliance officer shall be responsible for reviewing and approving any BMPs developed by a qualified designee.

A. BMPs Developed by Responsible Party

BMPs may be developed by the responsible party or a person designated by the responsible party. The responsible party shall provide the Department with any BMPs so developed. The agricultural compliance officer shall review such BMPs and determine whether they adequately address the agriculture related problem(s).

B. Site Specific BMPs

Recommended BMPs shall be chosen on a site-specific, case-by-case, basis. When developing BMP recommendations, the agricultural compliance officer, or the qualified designee, shall consider the farm, the farm operations and surrounding properties affected by the farm operations. In doing so, the agricultural compliance officer, or a qualified designee, shall include in his/her consideration relevant factors including but not limited to:

(1) The physical lay of the land;

(2) The natural resources present;

(3) The specific environmental conditions present on the farm and the surrounding or underlying areas such as wetlands, unique wildlife habitat areas, and sand and gravel aquifers;

(4) The type of crops or animals raised on the farm;

(5) The proximity of the farm operations to neighbors;

(6) Availability of other resources off the farm that may assist in reducing or alleviating any agriculture related problem;

(7) Reasonably available technologies and practices; and

(8) Other existing or potential problems on the site or that are part of the farm operation.

C. Exercise of Professional Judgment

The agricultural compliance officer, or the qualified designee, shall rely on his/her best professional judgment, when developing recommendations on which BMPs to adopt, to determine which factors apply and to what extent they must be considered for the site and the situation.

D. Source of BMPs

The agricultural compliance officer's, or qualified designee's recommendation regarding which BMPs to implement shall be based on the best available information concerning the farm operation, site conditions and off-site conditions, general BMPs as adopted by the Department and any data, research, studies, or other information pertaining to relevant agricultural BMPs.

-01-001-10-001-10-3--01-001-10-3-1 A list of General BMPs currently adopted by the Department, along with a description of the BMP and relevant sources is contained within the Manual of Best Management Practices for Maine Agriculture.

7. Communication of Investigation Results

A. Communications with Person Responsible for the Farm Operation

(1) Verbal

After the agricultural compliance officer makes a determination as to whether an agriculture related problem exists, he/she shall contact the responsible party and verbally notify the responsible party of the determination and the findings of the investigation. In the event that the agricultural compliance officer determines that an agriculture related problem exists, he/she shall also convey the recommendations of the Department for resolving any agriculture related problem. The agricultural compliance officer may provide the notification either in person or by telephone, but in either case shall provide the responsible party an opportunity to respond and discuss the findings of the investigation and any recommendations of the Department.

(a) If, after making reasonable efforts to comply with the provisions of this paragraph, the agricultural compliance officer is unable to verbally communicate with the responsible party, then the agricultural compliance officer may satisfy the requirements of this paragraph by sending a written communication, as described in paragraph 7(A)(2) below, by certified mail to the last known address of the responsible party.

(2) Written

In addition to the verbal notification required by paragraph 7(A)(1) above, after the agricultural compliance officer makes a determination as to whether an agriculture related problem exists, he/she shall send a letter to the responsible party setting out the determination, a brief description of the findings sufficient to explain the basis for any recommendations, and any recommendations.

B. Communications with Complainant

After the agricultural compliance officer makes a determination as to whether an agriculture related problem exists, he/she shall contact the complainant and verbally notify the complainant:

(1) That an investigation was completed by the Department;

(2) Of the determination as to whether an agriculture related problem exists; and

(3) If there is an agriculture related problem, that recommendations were made to resolve that problem.

8. Investigation Record

After completion of the investigation the agricultural compliance officer shall complete a written Investigation Record. The Investigation Record shall include:

A. Background Information

(1) At a minimum, the following information shall be included in the background information:

(a) the name of the complainant;

(b) the complainant's address (if known);

(c) the complainant's phone number (if known);

(d) the location of the complaint;

(e) the date the complaint was received;

(f) the nature of the complaint;

(g) the date(s)of investigation;

(h) the name of responsible party;

(i) the phone number of responsible party; and

(j) the address of responsible party.

B. The Written Findings; and

C. The Recommendation(s).

01-001 C.M.R. ch. 10, § 3