Skip Maine state header navigation

Agencies | Online Services | Help

Skip All Navigation

DEP Home > Board Reconsideration and Judicial Review

Fact Sheet
Board Reconsideration and Judicial Review

Revised: September 1998     Contact: (207) 287-2811

I. Summary of Administrative and Judicial Options. One of two methods may be appropriate for an individual seeking review of a licensing decision over which the Board of Environmental Protection ("Board") had original jurisdiction: (1) administrative reconsideration by the Board; or (2) judicial review in Maine’s Superior Court.

  1. Administrative. Within 30-days from the date of an original Board licensing decision, an applicant, or any person, aggrieved by the decision may file an administrative petition requesting that the Board reconsider its prior decision. This Fact Sheet, in conjunction with consulting the statutory and regulatory provisions listed below, will further assist aggrieved persons with filing a petition for reconsideration with the Board.
  2. Judicial. Licensing decisions over which the Board had original jurisdiction may be appealed to Maine’s Superior Court pursuant to Maine Revised Statutes Title 38, Section 346(1) and under provisions contained in Maine’s Administrative Procedures Act, 5 M.R.S.A. § 11000 et seq., and Maine Rule of Civil Procedure 80C. Judicial appeal of an original Board licensing decision is available whether an aggrieved individual receives a reconsidered decision from the Board as the Department of Environmental Protection’s ("DEP") final action on the matter, or the individual decides to forgo administrative reconsideration and seeks review directly in Court. In all cases, a party’s appeal must be filed with the Superior Court within 30-days of receipt of notice of the Board’s decision. A nonparty’s appeal must be filed within 40-days of the date the decision was rendered. Failure to file a timely appeal will result in the Board’s decision becoming final. Maine’s Administrative Procedures Act, DEP statutes governing a particular matter and the Maine Rules of Civil Procedure must be consulted for the substantive and procedural details applicable to judicial appeals.

II. Administrative Petitions for Reconsideration of a Board Decision

  1. Statutory and Regulatory References. 38 M.R.S.A. § 341-D(5) and DEP Rule Chapter 2, § 21(C)
  2. Why File a Petition for Reconsideration? The Board may assume jurisdiction over a licensing application upon the DEP Commissioner or an interested party’s request, or of its own accord when important policy questions are at issue or an application has generated substantial public interest. The resulting license decision in such circumstances may be reconsidered by the Board when: a petitioner seeks to correct any part of a decision which is believed to contain an erroneous provision not intended by the Board; new or additional evidence has come to the petitioner’s attention regarding any part of the decision; or a petitioner believes official notice was erroneously taken in the decision-making process.

    However, not all Board licensing decisions are subject to a Petition for Reconsideration -- only final decisions made solely and originally by the Board (i.e., not initially made by the Commissioner) may be reconsidered through this procedure. The Board's action on appeals of licensing decisions made by the DEP Commissioner are not subject to this process and any further review desired must be pursued in court pursuant to Maine Rule of Civil Procedure 80C.
  3. Time-period. A petition must be filed within 30 calendar days of the date on which the Board’s decision is signed.
  4. Filing with the Board. Signed petition documents must be sent to: Chair, Board of Environmental Protection, c/o Department of Environmental Protection, 17 State House Station, Augusta, ME 04333-0017. A petitioner must also send the DEP Commissioner and the applicant a copy of the documents. All the information listed below in the Petition for Reconsideration Contents section must be submitted at the time the petition is filed. Only the extraordinary circumstances described at the end of the Contents section will warrant Board reconsideration of a licensing decision based on evidence not currently in the administrative record needing consideration.
  5. Petition Contents. A petition must contain the following information:
    1. The findings, conclusions, or conditions objected to or believed to be in error. Provide specific references to the license condition(s) believed to be at issue.
    2. The basis of the objections or challenge. Cite specific regulations, statutes, or other factual references which demonstrate omissions of relevant requirements as well as errors believed to have been made in interpretations, conclusions, or relevant requirements.
    3. New or additional evidence to be offered. Evidence submitted for consideration as part of a petition must be new or additional material and based on fact or law, not opinion.
    4. The remedy sought. The remedy a petitioner may seek vary from reversal of the Board's previous decision on the license or permit, to changes in specific permit conditions.
    New or additional evidence will be allowed only when an individual shows due diligence in bringing the evidence to the DEP’s attention at the earliest possible time in the licensing process or shows that the evidence itself is newly discovered and could not have been presented earlier in the process. The specific requirements for additional evidence are found in DEP Rule Chapter 2, section 21(B)(3).
  1. Further Considerations
    1. Be familiar with all relevant material in the administrative file. Virtually all information in the DEP’s possession is public and is easily accessible. Upon request, the DEP will make the material available during normal working hours, provide space to review the file, and provide an 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 petition. DEP staff will provide this information on request and answer questions regarding applicable requirements.
  2. Board Action. Within 30 days of receiving a petition, the Board will consider the matter at a scheduled meeting. If the Board decides to reconsider its earlier decision, action on the matter may be taken at the same meeting it decides to reconsider or at a future meeting. In making its decision, the Board may approve, approve with conditions, or deny the application, or it may order a public hearing be held. If the Board dismisses the petition, the original decision stands. A petitioner will be notified of any dates on which the Board will be considering the matter.
  3. Additional Information. If you have questions or need additional information on the petition process, contact the Department's Director of Enforcement and Procedures at (207) 287-2811.

 

Note: The DEP provides this FACT SHEET for general guidance only; it is not intended for use as a legal reference. Applicable statutes and rules govern a petitioner’s rights.

OCF/90-2/r98