Section 096-2-24 - Appeals to the Board of Insurance Claim-Related Decisions of the Commissioner or the State Fire MarshalA 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.06-096 C.M.R. ch. 2, § 24