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Subdivision I. Environmental Board
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[Ord. No. 2002.112, § 2-101, 11-6-2002]
This division shall be known and may be cited as the "City of
Biddeford Air Toxics Permit Administration and Enforcement Code."
[Ord. No. 2002.112, § 2-102, 11-6-2002]
The Biddeford Environmental Board is hereby established pursuant
to Article VIII, Part Second of the Maine Constitution and the laws
of the State of Maine, including, but not limited to, 30-A M.R.S.A.
§ 3001.
[Ord. No. 2002.112, § 2-103, 11-6-2002; Ord. No. 2004.36, 6-1-2004; Ord. No. 2008.10, 3-4-2008; amended 5-4-2010 by Ord. No.
2010.33; 7-5-2011 by Ord. No. 2011.42]
(a)
The Board shall consist of seven voting members who shall serve until
their term ends or until their resignation, two City Councilors, who
shall be voting members, and such number of alternate members, as
the Mayor and City Council deem necessary. Members and alternate members
of the Board shall be residents of the City of Biddeford at all times
during their terms.
(b)
When a member is unable to act because of interest, physical incapacity,
absence or any other reason satisfactory to the majority of the Board;
the chairman may designate an alternate member to sit as a voting
member.
(c)
In the event a quorum is not present, alternate members may be appointed
by the Chairman as voting members for the duration of the meeting.
[Ord. No. 2002.112, § 2-104, 11-6-2002]
The members and alternate members of the Board shall be nominated
by the Mayor no later than 60 days after the effective date of this
article and shall serve upon approval of the City Council.
[Ord. No. 2002.112, § 2-105, 11-6-2002]
Members of the Board shall be appointed for staggered five-year
terms. Voting members shall be appointed initially for one, two, three,
four and five years, with two members initially being appointed for
one year. City Council liaisons shall serve for five years or until
replaced by the City Council. Alternate members shall be appointed
for a term of five years. This structure is intended to establish
continuation of "institutional knowledge" by the Board as a whole.
Members of the Board, prior to the end of their terms, may be reappointed
by the City Council.
[Ord. No. 2002.112, § 2-106, 11-6-2002]
The City Council may declare a vacancy on the Board upon the
nonacceptance, resignation, death, removal, permanent disability or
relocation of a member's place of residence outside of Biddeford.
In such circumstances, the Mayor, upon approval of the City Council,
shall fill all positions; pending any such action, the Chairman may
designate an alternate member to act to fill a vacancy.
[Ord. No. 2002.112, § 2-107, 11-6-2002; Ord. No. 2008.10, 3-4-2008]
(a)
Members of the Board may be removed from office by the City Council
for the following reasons:
(1)
A member is no longer a resident of the City of Biddeford; or
(2)
A voting member or alternate is absent from three consecutive
regular Board meetings without prior satisfactory explanation; or
(3)
A voting member or alternate is absent from six workshops of
the Board without prior satisfactory explanation; or
(4)
A member knowingly fails to excuse him or herself on a matter
in which the member has a conflict of interest.
(b)
Removal action shall be initiated by the Board. The Chair shall submit
in writing a letter to the City Council stating the reasons for the
removal request.
(c)
The Board member in question shall be provided a copy of the Chair's
letter and shall be given the opportunity to reply to the City Council.
[Ord. No. 2002.112, § 2-108, 11-6-2002]
(a)
Election of officers. The Board shall, by majority vote, elect a
Chair and Vice Chair and shall fill any vacancies in said offices
as soon as practical after they occur. The Chair and Vice Chair shall
each serve a term of one year or until his or her successor is duly
elected by the Board. The Chair and Vice Chair may serve successive
terms, if so elected.
(b)
Chair. The Chair shall preside at all meetings.
(c)
Vice Chair. In the absence of the Chair, the Vice Chair shall act
as Chairperson and shall have all the powers of Chair.
[Ord. No. 2002.112, § 2-109, 11-6-2002]
(a)
Meetings. Regular meetings of the Board shall be held at least monthly,
or as provided by rule of the Board unless excused by the Chair.
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Special meetings may be called by the Chair, the Chair designated
for a particular matter, or any four members of the Board.
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The Board may hold executive sessions as provided in the Maine
Freedom of Access Act, 1 M.R.S.A. 401 et seq. (Freedom of Access Law);
otherwise all meetings, hearings, proceedings and deliberations of
the Board shall be open to the public in accordance with the Freedom
of Access Law.
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Workshops may be called by the Chair or by a member designated
by the Chair for the presentation of information. Workshops shall
be informational only, shall not be used by the Board for the weighing
of positions or reasons for or against a proposition, and shall not
be used by the Board for the formulation of formal decisions on any
matter.
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(b)
Quorum. No business shall be transacted by the Board without a quorum.
A quorum shall consist of four members authorized to vote. The Board
shall act by majority vote, calculated on the basis of the number
of members present and voting. If less than a quorum is present, the
meeting may be adjourned for a period not exceeding three weeks at
any one time.
(c)
Agenda. No item of business or plan shall be placed on the Board
agenda for any meeting unless such item or plan shall have been submitted
to the Board not less than seven days prior to the date of a meeting
or other proceeding; provided, however, that the Board may upon request
by an interested person or on its own motion, waive the seven day
advance submission requirement.
(d)
Materials. Submittals associated with an item of business or plan
placed on the Board agenda shall be provided to the Board not later
than five days prior to Board consideration of that submittal provided,
however, that the Board may, upon request or on its own motion, waive
the five-day advance submission requirement.
(e)
Conflict of interest. Any member of the Board shall voluntarily disqualify
himself or herself from voting on a particular matter in which the
member has a private interest distinct from the public interest. In
addition, a member shall be disqualified from voting on a particular
matter for cause by a majority vote of the members present and voting,
except the member whose disqualification is at issue shall not vote
on his or her own disqualification.
(f)
Public notice. At least seven days prior to the date of a regular
meeting and at least three days prior to the date of a special meeting,
the Board shall publish in one issue in a newspaper of general circulation
in the City a notice of the time and place of the meeting.
[Ord. No. 2002.112, § 2-110, 11-6-2002]
The Board shall have the following powers and duties:
(1)
To hear and review applications for a Biddeford Air Toxics Emissions
Permit and to grant, grant with conditions, modify, repeal or deny
a Biddeford Air Toxics Emissions Permit;
(2)
To hear and review petitions for an addition, deletion, or modification
of the list of regulated air pollutants, or for the modification of
a parameter for any substance or compound named on the list entitled
Table I[1] to this article.
[1]
Editor's Note: Table I is included at the end of this chapter.
(3)
To issue such orders as necessary to properly administer and to ensure
compliance with the article;
(4)
To administer enforcement proceedings including, but not limited
to conducting enforcement hearings, to assure compliance with this
article;
(5)
To exercise such powers as are provided to the Board by this article
consistent with the Constitution and laws of the State of Maine;
(6)
To perform such duties as delegated and requested by the City Council;
and to perform such duties as requested by other public agencies,
as the Board determines is proper and appropriate;
(7)
To obtain such goods and services, and employ or contract with such
staff, including but not limited to attorneys, engineers and other
professionals as may be necessary to carry out its duties hereunder
and to pay for such expenses within the limits of appropriations made
for the purpose, upon the approval of the City Council as may be necessary;
(8)
To hold hearings jointly with other agencies of the government in
connection with activities which are subject to the provisions of
this article;
(9)
To issue such orders as necessary to properly administer and to ensure
compliance with the article; and
(10)
To issue subpoenas for the attendance of witnesses or for the
production of documents as follows:
a.
General. At the request of the Board, or any member thereof, or at
the request of the Environmental Code Officer, or an applicant or
respondent in any proceeding under Division 3, the presiding officer
may issue subpoenas for the attendance of witnesses and/or for the
production of documents.
b.
Form. Every subpoena so issued shall bear the name of the Board,
the name of the issuing officer and shall command the person to whom
it is directed to attend and give testimony and/or produce specified
documents or things at a designated time and place. The subpoena shall
also advise of the quashing procedure provided herein.
c.
Service. Unless receipt of the subpoena is acknowledged by the witness,
it shall be served by a person who is not a party to the proceeding
and is not less than 18 years of age. Service shall be made by delivering
a copy of the subpoena to the person named in it and tendering the
fees and mileage paid to witnesses in the superior courts of this
state.
d.
Return. The person serving the subpoena shall make proof of service
by filing the subpoena and affidavit or acknowledgment of service
with the Board. Failure to make such proof of service shall not affect
the validity of such subpoena and service.
e.
Quashing. On motion made promptly, and in any event before the time
specified in the subpoena for compliance by the person to whom the
subpoena is directed, and on notice to the party at whose instance
the subpoena was issued, the Board may (a) quash or modify the subpoena
on a finding that it is unreasonable or required evidence not relevant
to any matter in issue, or (b) condition denial of the motion on just
and reasonable terms. Any person requesting a hearing on a motion
to quash a subpoena shall be granted a hearing before the Board upon
such motion.
f.
Denial of subpoena. The Board may condition the granting of the subpoena
upon the advancement by the person in whose behalf the subpoena is
issued of the reasonable cost of producing the books, papers, documents
or tangible items.
[Ord. No. 2002.112, § 2-111, 11-6-2002]
An appeal from any final decision or action of the Board may be taken by any aggrieved party in accordance with Section 34-213.
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Subdivision II. Environmental Code Officer
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[Ord. No. 2002.112, § 2-201, 11-6-2002]
The City of Biddeford hereby establishes the office of Environmental
Code Officer "ECO."
[Ord. No. 2002.112, § 2-202, 11-6-2002]
The ECO shall be selected by the Mayor and City Council in accordance
with the City Charter. In addition, the City Council may appoint assistants
as necessary to the ECO.
The ECO and an assistant, if any, shall be residents of the State of Maine, at least 18 years of age and citizens of the United States at all times during his or her term. The ECO shall be appropriately qualified by reason of education and experience. The City Council may remove an ECO or his assistant for cause, after notice and hearing utilizing the same procedures specified in Section 34-137 herein for the removal of a Board member. The term "cause" shall mean conduct or conflict affecting the ability and fitness of the ECO or his assistant, to perform his or her duties. If an ECO or his assistant, if any, is unable to act because of interest, physical incapacity, absence or other reason satisfactory to the City Council, the City Council shall designate another person to fill the vacancy.
[Ord. No. 2002.112, § 2-203, 11-6-2002]
(a)
Powers generally.
(1)
The ECO shall be empowered to execute the duties of his or her
office in a manner necessary and proper to implement the provisions
of this article.
(2)
The ECO shall investigate potential violations of the article,
including, but not limited to potential violations referred by the
Board or Code Enforcement Officers, report to the Board when appropriate
and commence and maintain enforcement proceedings.
(3)
The ECO shall have the power to enter any property at reasonable
hours and to enter any building with the consent of the property owner,
occupant or agent, to inspect the property or structure for compliance
with this article.
(4)
The ECO shall have the power to represent the City of Biddeford
in District Court in the prosecution of alleged violations of this
article.
(5)
The ECO, upon approval of the Board, and of the City Council
as may be necessary, shall have the power to obtain such goods and
services and to contract with attorneys, engineers and other professionals
as may be necessary to carry out his or her duties hereunder within
the limits of appropriations made for the purpose.
(b)
Duties.
(1)
In addition to any other duties specified within this article,
the ECO will generally be responsible for all day-to-day operations
of this article, including but not limited to the following:
a.
Communications and meetings with City Manager and the Board.
b.
Compliance inspections of affected industries.
c.
Continued compliance assurance monitoring of affected industries.
d.
Issue compliance orders as provided in this article.
e.
Respond and investigate air pollution complaints by local citizens.
f.
Coordinate air pollution control activities with the Maine DEP
and USEPA as warranted.
g.
Represent the City in the prosecution of alleged article violations.
h.
Assist the Board in the implementation of the article.
(2)
In addition to the duties specified in Subsection (b)(1), above,
and any other duties specified in this article, the ECO will be specifically
responsible for the following areas related to the article:
a.
Assist the Board in formulating standard complaint, permit application,
investigation and other forms.
b.
Review all permit applications, related data, modeling, calculations,
engineering data, process data, assumptions and test data.
c.
Review all permit applications to ensure they comply with all
article requirements.
d.
Draft permit conditions which will ensure compliance with the
article.
e.
Develop, in consultation the Board, an inventory of annual emissions
of regulated air toxic pollutants from all significant sources within
the City and, no later than two years from the effective date of this
article, submit recommendations to the Board identifying additional
sources of regulated pollutants to be regulated under the article,
together with a report of their estimated annual emissions.
f.
Develop an hourly and annual RTAP emission inventory for all
affected facilities.
g.
Review the RTAP table annually, and, as new and revised data
is published through OSHA, the ACGIH, and IRIS, submit to the Board
no less frequently than once per year proposed additions, deletions
and modifications to RTAPs in accordance with the provisions of this
article.
(c)
The ECO shall attend all regular and special meetings of the Biddeford
Environmental Board and enforce this article.
[Ord. No. 2002.112, § 2-204, 11-6-2002]
The ECO shall be responsible for overseeing compliance with
the provisions of the article and the terms of any permits issued
pursuant to the article as set forth in Division 3.
[Ord. No. 2002.112, § 2-205, 11-6-2002]
The ECO may investigate alleged violations of this article as
set forth in Division 2.
[Ord. No. 2002.112, § 2-206, 11-6-2002]
The ECO shall be responsible for, undertake and oversee enforcement
proceedings, including enforcement hearings as set forth in Division
2.
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Subdivision III. Permit Investigation and Enforcement
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[Ord. No. 2002.112, § 2-301, 11-6-2002]
(a)
General. The Environmental Code Officer shall generally oversee the
administration of, and compliance with, all permits issued by the
Board.
(b)
Compliance facilitation. Whenever it appears to the ECO that there
is or may be any irregularity in the administration of, or compliance
with, any permit issued by the Board, the ECO may contact the permittee
and may attempt to secure satisfactory permit administration and compliance.
The ECO is authorized, but not required, to meet at reasonable times
and places with representatives of the permittee to discuss issues
or problems relating to administration of, or compliance with, any
permit. Notwithstanding any effort undertaken by the ECO pursuant
to this section, responsibility for compliance with the permittee's
obligations under any permit remains with the permittee.
[Ord. No. 2002.112, § 2-302, 11-6-2002]
(a)
The ECO may at any time, consistent with the applicable provisions
of this article, conduct an investigation of a possible violation
of this article or of any permit, approval, or order of the Board.
On receipt of a written complaint signed by a person residing or conducting
business in Biddeford, and alleging with reasonably sufficient information
one or more violations of this article or a violation of any permit,
approval or order of the Board, the allegations of the complaint shall
be investigated by the ECO.
(b)
In all cases not within the provisions of Section 34-173 (Emergencies), the investigation shall be conducted in a reasonably expeditious manner.
(c)
After an investigation under this section has been completed, the
ECO shall report to the Board. The ECO may commence an enforcement
proceeding in accordance with the provisions of this division. If
the ECO determines that commencement of an enforcement proceeding
is inappropriate or inadvisable, the ECO shall so report to the Board
and the report of investigation conducted by the ECO shall be placed
on file and the matter shall be considered closed without prejudice.
[Ord. No. 2002.112, § 2-303, 11-6-2002]
Whenever the Board, determines that there is or may be an ongoing
violation of any provision of this article or of the terms or conditions
of any permit, approval or order of the Board which is creating or
is likely to create a substantial and immediate danger to public health,
welfare or safety or significant environmental harm, the Board may
in accordance with this section order the person or persons causing
or contributing to such hazard to take such immediate actions as are
necessary to reduce or alleviate the danger. Service of a copy of
the order issued under this emergency procedure shall be made by sheriff,
deputy sheriff, constable, or Biddeford Police Officer to the person
to whom the order is directed. Before issuing such order, the Board
or ECO may consult and coordinate with appropriate state and federal
agencies in responding to the emergency.
Each person to whom such order is directed shall comply with it immediately. Any such person may apply to the Board for a hearing on such order within two business days of receipt of the order, or, after providing written notice to the City, seek judicial review pursuant to Section 34-182 of this article. The filing of an appeal of an emergency order of the Board does not stay the Board's order. If requested, a hearing shall be held by the Board within two business days of service of the request for hearing. Such hearing shall be conducted in accordance with Section 34-179 of this article to the extent possible under the circumstances, but to the extent that the circumstances require expedited action the presiding officer may apply such procedural rules as required by the circumstances and shall clearly state such procedures at the start of the proceeding. Within three days after such hearing, the Board shall make findings of fact and continue, revoke or modify the order. The findings of fact and order shall be served as specified above in this subsection. The decision of the Board shall be considered final Board action which may be appealed in accordance with Section 34-182. This subsection is additional to and independent of any and all other remedies that might otherwise be available at law or in equity.
[Ord. No. 2002.112, § 2-304, 11-6-2002]
(a)
Commencement of proceedings. Whenever it appears to the ECO, after
investigation, that there is or has been a violation of this article
or of the terms or conditions of a license, permit or order issued
by the Board under this article, the ECO shall commence an enforcement
proceeding by filing and serving a complaint upon the alleged violator
(herein called "respondent"); provided, however, that prior to serving
such complaint pursuant to this paragraph, the ECO shall issue a notice
of violation of the person or persons the ECO considers likely to
be responsible for the alleged violation or violations.
(b)
The notice of violation issued pursuant to paragraph (a), above, must describe the alleged violation or violations, to the extent then known by the ECO; cite the applicable law, term or condition of the license, permit or order alleged to have been violated; and provide the alleged violator a time period not to exceed 30 days in which to take necessary corrective action. For violations the ECO finds to be minor, the notice may state that further enforcement action will not be pursued if compliance is achieved within the time period specified in the notice or under other appropriate circumstances. A notice of violation is not required before issuing an emergency order pursuant to Section 34-173 of this article.
(c)
Complaint: form and content. Each complaint for the assessment of
a penalty and/or for the suspension, revocation or modification of
a permit shall include:
(1)
A statement reciting the section(s) of the article authorizing
the issuance of the complaint;
(2)
A specific reference to each provision of the article or any
applicable permit which respondent is alleged to have violated or
to other legal grounds for the complaint;
(3)
A concise statement of the factual basis for the alleged violation;
(4)
Either a demand for specific penalties or forms of relief authorized
by this article or a statement that the complaint seeks whatever outcome
may be appropriate under the circumstances; and
(5)
Notice of respondent's rights to (a) admit to the violation,
consent to the penalty or other action specified in the complaint;
or (b) admit to the violation, but request a hearing before the Board
to contest the penalty or other action sought in the complaint; or
(c) deny the alleged violation.
(d)
Copy of ordinance. A written statement of the enforcement provisions
contained in this article shall be served with the complaint.
(e)
Service. A complaint under this section shall be served upon the
respondent by certified mail, return receipt requested, or by sheriff,
deputy sheriff, constable or Biddeford Police Officer. If service
is by certified mail, the return receipt, properly endorsed and postmarked
shall be prima facie evidence of the completion and date of such service.
If service is made in hand the Maine Rules of Civil Procedure shall
apply to the making of such service and proof thereof.
[Ord. No. 2002.112, § 2-305, 11-6-2002]
The respondent shall file and serve upon the ECO a written response
to the complaint within 20 days following service of the complaint:
(1)
If respondent admits to all of the allegations contained in the complaint
and consents to the penalty or other action requested in the complaint,
the response shall unequivocally and unambiguously so state;
(2)
If respondent admits to the violation as alleged in the complaint,
but contests either the amount of the penalty or the terms of any
other action sought in the complaint or both, the response shall expressly
admit the allegations and specifically state all of the factual and
legal circumstances which respondent contends support a different
disposition; and
(3)
In all other instances, the response shall specifically and clearly
admit or deny each of the factual allegations in the complaint or
state clearly that respondent lacks knowledge or information sufficient
to form a belief as to the truth of any allegation, which allegation
shall be deemed to have been denied. Each and every allegation not
specifically addressed in the response shall be deemed to have been
admitted. The response shall also state all factual or legal matters
upon which respondent bases any defense or affirmative defense and
identify any additional factual or legal issues which respondent intends
to place at issue in the proceeding.
[Ord. No. 2002.112, § 2-306, 11-6-2002]
(a)
Default. A respondent may be found to be in default by the Board:
(1) after motion, upon failure to file a timely response to the complaint;
(2) after motion or sua sponte, upon failure to comply with a prehearing
or hearing order of the presiding officer; or (3) after motion or
sua sponte, upon failure to appear at a conference or hearing without
good cause being shown. No finding of default on the basis of a failure
to appear at a hearing shall be made against the respondent unless
the ECO presents sufficient evidence to the Board to establish a prima
facia case against the respondent. Any motion for a default order
shall include a proposed default order and shall be served upon all
parties. The alleged defaulting party shall have 20 days from service
to reply to the motion. Default by respondent constitutes, for purposes
of the pending enforcement action only, an admission of all facts
alleged in the complaint and a waiver of respondent's right to a hearing
on such factual allegations. Default by the ECO shall result in the
dismissal of the complaint with prejudice.
(b)
Procedures upon default. Upon finding that default has occurred,
the presiding officer shall issue a default order against the defaulting
party.
(c)
Contents of a default order. A default order shall include findings
of facts showing the grounds for the order, conclusions regarding
all material issues of law or discretion, the penalty to be assessed
and/or the terms and conditions of permit revocation, suspension or
modification as appropriate.
(d)
Relief from default. For good cause shown, the presiding officer,
as appropriate, may set aside a default order.
[Ord. No. 2002.112, § 2-307, 11-6-2002]
After receipt of respondent's response to the complaint or after
the deadline for receipt of such response, the Board may take any
of the following actions:
(1)
In the event that the respondent admits to the violation and agrees
to any monetary penalty and/or the terms and conditions of the revocation,
suspension or modification recommended in the complaint by the ECO,
the Board shall ratify or disapprove those sanctions.
(2)
In the event the respondent admits to the violation set forth in
the complaint, but contends that the amount of the monetary penalty
and/or the terms and conditions of the suspension, revocation or modification
recommended by the ECO are inappropriate, or in the event the complaint
does not seek specific monetary penalties or other specific sanctions
but respondent does not contest the allegations, the Board will conduct
a hearing limited to the amount of the monetary penalty and/or the
terms of the revocation, suspension or modification. The Board will
determine the amount of the monetary penalty and/or the terms and
conditions of the suspension, revocation or modification;
(3)
In the event the respondent denies that a violation occurred, the
Board will decide whether to dismiss the enforcement action or to
proceed with a hearing.
[Ord. No. 2002.112, § 2-308, 11-6-2002]
(a)
Purpose of prehearing conference. Unless the conference appears unnecessary,
the presiding officer, at any time before an enforcement hearing begins,
shall direct the ECO and the respondent, either personally or through
a representative, to appear at a conference presided over by the chair
or a member of the Board designated by the chair to consider:
(1)
A schedule for the filing of motions and other pleadings;
(2)
A schedule for the exchange of exhibits, documents, prepared
testimony, and admissions or stipulations of fact which will avoid
unnecessary proof;
(3)
The designation of the number of expert or other witnesses;
(4)
Setting a time and place for the hearing; and
(5)
Any other matters which may expedite the disposition of the
proceeding.
(b)
Exchange of witness lists and documents. Unless otherwise ordered
by the presiding officer, the ECO and respondent shall exchange:
(1)
The names of the expert and other witnesses each intends to
call, together with a brief narrative summary of their expected testimony;
and
(2)
Copies of all documents and exhibits to be offered as evidence.
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Documents and exhibits shall be marked for identification as
ordered by the presiding officer. Documents that have not been exchanged
and witnesses whose names have not been exchanged shall not be introduced
into evidence or allowed to testify at the enforcement hearing without
permission of the presiding officer.
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(c)
Record of the prehearing conference. No transcript of a prehearing
conference relating to settlement shall be made. With respect to other
prehearing conferences, no transcript of any prehearing conferences
shall be made unless ordered by the presiding officer upon motion
of a party or sua sponte. The presiding officer shall prepare and
file for the record a written summary of the action taken at the conference.
The summary shall incorporate any written stipulations or agreements
and all rulings and appropriate orders.
(d)
Unavailability of a prehearing conference. If a prehearing conference
is unnecessary or impracticable, the presiding officer, on motion
or sua sponte, may direct other arrangements to accomplish any of
the objectives set forth in this section.
[Ord. No. 2002.112, § 2-309, 11-6-2002]
This section shall apply to all hearings which may result in
the modification, suspension or revocation of any permit, approval
or order or the imposition of a monetary penalty whenever such hearings
are based upon the alleged violation of any provisions of this article
or the terms or conditions of any permits, approvals or orders issued
by the Board pursuant to this article.
(1)
Duties and responsibilities of the presiding officer.
a.
The presiding officer at all hearings shall be either (a) the Chair
of the Board, if present and willing to preside, Vice Chair of the
Board, if present and willing to preside in the absence of the Chair,
or (b) a member of the Board selected by those members present at
the hearing.
b.
The presiding officer shall have the authority to:
1.
Hold a prehearing conference for the simplification of issues;
2.
Issue subpoenas requested by the parties;
3.
Place witnesses under oath;
4.
Take action necessary to maintain order;
5.
Rule on motions and procedural questions arising before and
during the hearing;
6.
Call recesses or adjourn the hearing; and
7.
Prescribe and enforce general rules of conduct and decorum.
(2)
Role of Board members. The voting members of the Board, including
the presiding officer, collectively shall be responsible for reviewing
evidence and hearing testimony and argument in order to determine
the appropriate disposition of the complaint.
(3)
Role of Biddeford Code Enforcement Officer and advisory staff to
the Board. The Code Enforcement Officer of the City of Biddeford shall
advise the Board upon request with regard to documentary evidence
produced and testimonial evidence heard at the enforcement hearing.
The code enforcement officer will not act as an advocate at the hearing.
The Board may also retain legal counsel or expert witnesses as it
deems necessary.
(4)
Ex parte communications prohibited. Throughout any enforcement proceeding:
a.
No presiding officer, Board member or City Council liaison in a proceeding
shall communicate, directly or indirectly, in connection with any
issue relating to the merits with either the ECO or respondent, or
any other person legally interested in the outcome of the proceedings
except upon notice and opportunity for all parties to participate
pursuant to order of the presiding officer.
b.
Nothing in this section prohibits inquiry by an ECO, respondent,
presiding officer, or Board member concerning the scheduling or rescheduling
of any event contained in the procedural schedule, any filing or any
motion, order, or other pleading.
c.
Except as otherwise provided by law, this section shall not prohibit
the Board from communicating in any respect with legal counsel retained
by the Board who has not participated and will not participate in
the enforcement proceeding in an advocate capacity.
(5)
General conduct.
a.
Opening statement. The presiding officer shall open the hearing by
describing in general terms the purpose of the hearing and the general
procedure governing its conduct.
b.
Complaint. The presiding officer shall read or otherwise have inserted
in the official record of the proceeding the complaint and the response.
c.
Transcription of testimony. All testimony at hearings before the
Board shall be recorded.
d.
Witnesses. Witnesses shall be sworn and shall testify under oath.
Witnesses will be required to state for the record their names, residence,
and business or professional affiliation for purposes of the hearing.
Witnesses may be compelled to attend, testify and produce records
if subpoenaed by the Board.
e.
Continuance. All hearings conducted pursuant to this section may
be reasonably continued for reasonable cause and reconvened from time
to time and from place to place by the Board or presiding officer
as circumstances require. All orders for continuance shall specify
the time and place at which such hearings shall be reconvened. The
Board or presiding officer shall provide reasonable notice of the
time and place of such a reconvened hearing to any person who so requests
in writing, to the respondent and to the public.
(6)
Order of proceedings. The order of proceedings, unless modified by
the presiding officer to facilitate the hearing, shall be as follows:
a.
The ECO may offer an opening statement;
b.
The respondent may offer an opening statement;
c.
The ECO may present evidence. Witnesses may be cross-examined by
respondent and questioned by Board members, staff or Board counsel
after the completion of the witness' direct testimony;
d.
The respondent may present evidence. Witnesses may be cross-examined
by the ECO and questioned by Board members, staff, or Board counsel
after the completion of the witness' direct testimony;
e.
The ECO may offer rebuttal evidence;
f.
The ECO may offer a closing statement;
g.
The respondent may offer a closing statement; and
h.
The ECO may offer a rebuttal.
(7)
Varying order of appearance. When circumstances warrant, the Board
or the presiding officer may vary the order in which witnesses appear
and the order in which testimony is given or witnesses are questioned.
(8)
Record. A full and complete record shall be kept of all enforcement
hearings. The records shall include, but not be limited to, the complaint,
supporting documents, all exhibits, proposed findings of fact and
conclusions submitted by either party or by Board staff and counsel,
if any, staff documents, respondent's answer and supporting documents,
consent orders, if any, Board findings of fact and orders and the
recording or transcript of the proceedings, if prepared.
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At any time prior to the Board's final decision after the close of the enforcement hearing, the Board may reopen the record for further proceedings consistent with this section, provided, however, that the Board shall give written notice of such further proceedings at least 10 days prior to such proceedings. After the close of an enforcement hearing held pursuant to Section 34-179, the Board may reopen the record after giving notice to the parties and to the public.
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(9)
Burden of proof. The ECO has the burden of proving, by a preponderance
of the evidence, that the alleged violation occurred and that proposed
penalty, revocation, suspension, or modification of the permit is
appropriate. Following the establishment of a prima fascia case, respondent
shall have the burden of presenting and of going forward with any
defenses, affirmative defenses, or mitigating circumstances.
(10)
General evidence.
a.
Admissibility. Evidence which is relevant and material to the subject
matter of the hearing and is of a type commonly relied upon by reasonably
prudent persons in the conduct of their affairs shall be admissible.
Evidence which is relevant, immaterial or unduly repetitious shall
be excluded by the presiding officer. The Board's experience, technical
competence and specialized knowledge may be utilized in the evaluation
of all evidence submitted to the Board. Existence and duration of
a violation may be established by any credible evidence including
but not limited to observations, operating parameters, reporting operating
data, environmental indices, health indices, compliance assurance
data, test results, opinion evidence or other evidence.
b.
Official notice. The Board 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
its specialized knowledge and of statutes, regulations and non-confidential
Board records. Facts officially noticed shall be included and indicated
as such in the record.
c.
Official record. An official record or lack thereof may be evidenced
in the manner provided in Rule 44 of the Maine Rules of Civil Procedure,
as amended from time to time.
d.
Objections. All objections to rulings of the presiding officer regarding
evidence or procedure and the grounds therefore shall be timely stated
at the time of such ruling during the course of the hearing. If during
the course, of or after the close, of the hearing and during its deliberations
the Board determines that the ruling of the presiding officer was
in error, it may reopen the hearing or take such action as it deems
appropriate to correct such error.
e.
Offer of proof. An offer of proof may be made in connection with
an objection to a ruling of the presiding officer excluding or rejecting
any testimony or question on cross-examination. Such offer of proof
shall consist of a statement of the substance of the proffered evidence
or that which is expected to be shown by the answer of the witness.
(11)
Documentary and real evidence.
a.
All documents, materials and objects offered in evidence, shall,
if accepted, be numbered or otherwise identified. Documentary evidence
may be received in the form of copies or excerpts if the original
is not readily available. The presiding officer may require, after
prior oral or written reasonable notice, that any person offering
any documentary or photographic evidence shall provide the Board with
a specified number of copies of such documents or photographs, unless
such documents or photographs are determined to be of such form, size
or character as not to be reasonably suitable for reproduction.
b.
All written testimony and documents, materials and objects admitted into evidence shall be made available during the course of the hearing for public examination. All such evidence will be available for public examination at the City office or as otherwise ordered, during normal business hours, except for documents, materials and object deemed confidential pursuant to Section 34-204.
[Ord. No. 2002.112, § 2-310, 11-6-2002]
(a)
Following the conclusion of an enforcement hearing, or in the event
of a default by respondent, the Board shall within 30 days thereafter
make findings of fact based on the record. The Board shall issue an
order aimed at abating or correcting the violation and ensuring that
the violation does not recur, and, in addition, may assess a penalty,
or modify or condition any permit, approval or order in whole or in
part, whenever the Board finds:
(1)
The respondent violated any term or condition of the permit,
approval or order;
(2)
The respondent obtained a permit, approval or order by false
statement, misrepresentation or failure to disclose fully all relevant
facts;
(3)
There has been a change in any condition or circumstance that
requires modification or conditioning of the terms of the permit,
approval or order; or
(4)
The respondent violated any provision of this article.
(b)
The order shall state the date upon which it becomes effective and shall advise the respondent that it may seek judicial review. The findings and order shall be served on the respondent as provided in Section 34-174. All orders entered by the Board pursuant to this section shall be considered final Board action as of the date of the order for purposes of judicial review.
[Ord. No. 2002.112, § 2-311, 11-6-2002]
(a)
Any person who violates any provision of this article or terms or
conditions of any order, permit, approval or decision of the Board
shall be subject to the following civil penalties, due and payable
to the City of Biddeford:
(1)
For violations of any requirement of Divisions 4 and 5, or of
any term of condition of a permit, approval or order implementing
or assuring compliance with requirements of Divisions 4 and 5: A penalty
of not less than $100 nor more than $2,500 unless it is demonstrated
that the person has violated a requirement of Division 4 or 5, or
of any term of condition of a permit, approval or order implementing
or assuring compliance with requirements of Divisions 4 and 5 within
the past two years. If such a previous violation has occurred, the
maximum penalty may exceed $2,500, but shall be no more than $25,000.
Penalties may be assessed on a per day basis for a continuing violation.
If the economic benefit resulting from the violation exceeds the maximum
applicable penalties, the maximum penalties may be increased. When
so increased, the maximum civil penalty may not exceed an amount equal
to twice the economic benefit resulting from the violation. Economic
benefit shall, without limitation, include the costs avoided or enhanced
value accrued at the time of the violation as a result of the violator's
noncompliance with the applicable requirements.
(b)
In setting penalties, the Board may consider all relevant factors
including any one or more of the following:
(1)
Prior violations by the same person;
(2)
The nature and scope of environmental harm that cannot be abated
or corrected;
(3)
The extent to which the violation continued;
(4)
Economic benefit derived by the person as a result of the violation;
(5)
Importance of setting a civil penalty substantial enough to
deter future violation;
(6)
Whether penalties have been imposed by another governmental
agency for the same incident(s);
(7)
The economic impact of the penalty on the violator; and
(8)
The duration of the violation as established by any credible
evidence including but not limited to observations, operating parameters,
reporting information, records, correlations, operating data, environmental
indices, health indices, compliance assurance data, test results,
opinion evidence or other evidence.
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The Board is not required to make itemized express findings
on these factors.
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(c)
Payment of any penalty assessed shall be made in cash or by a certified
check drawn on a recognized financial institution, made payable to
"City of Biddeford" in an amount equal to the full amount of the penalty.
(d)
If the municipality is the prevailing party, the municipality must
be awarded reasonable attorney fees, expert witness fees and costs,
unless the Board finds that special circumstances make the award of
these fees and costs unjust. If the respondent is the prevailing party,
the respondent may be awarded reasonable attorney fees, expert witness
fees and costs unless the Board otherwise specifically directs.
(e)
In lieu of all or a portion of any penalty assessment, the Board
may elect to request the respondent to submit for review and approval
by the Board one or more supplementary environmental projects (SEP)
that will yield environmental benefits to the regulated source and
to the City and its residents. Such SEPs shall not include actions
at the permitted facility that were otherwise required under any license,
permit, order or consent agreement issued or approved by the City
of Biddeford, State of Maine or federal government.
[Ord. No. 2002.112, § 2-312, 11-6-2002]
Any person aggrieved by a final action or decision of the Board
in an enforcement or emergency proceeding pursuant to this section
may seek judicial review in accordance with state law within 30 days
of the date of issuance of the final Board action. The filing of a
motion for reconsideration on an enforcement or emergency order is
not a prerequisite to judicial review.
[Ord. No. 2002.112, § 2-313, 11-6-2002]
The filing of an appeal of a decision of the Board in an enforcement
action shall operate as a stay of the final Board action. The filing
of an appeal of a decision of the Board on an emergency order shall
not operate as a stay of the Board's emergency order.
[Ord. No. 2002.112, § 2-314, 11-6-2002]
(a)
General. In the event of a violation of any provision of this article
or of any order, permit, approval or final decision or action of the
Board or decree of court, as the case may be, the City of Biddeford
may institute judicial proceedings in accordance with state law for
an order enjoining those acts or practices which constitute such a
violation, for an order directing compliance with this article, or
any order, permit, approval, condition or final decision or action
of the Board pursuant to this article; for an order assessing penalties
or any appropriate combination of actions.
(b)
Substantial and immediate danger to public health, safety or environment.
If the Board finds that the violation of any provision of this article
or the failure to comply with any order, permit, approval, condition,
or final decision or action of the Board constitutes a substantial
and immediate danger to the public health, safety or welfare of any
person(s), or property, or the environment of the City of Biddeford,
the City of Biddeford may initiate immediate injunction proceedings
to abate or correct such violation.
(c)
Recovery of costs. In any action that the City of Biddeford institutes
before the court to enforce any provisions of this article, the prevailing
party in such action shall be allowed to recover reasonable costs,
including attorneys fees, incurred in connection with such action.
