06- 481 C.M.R. ch. 1, § 5

Current through 2024-38, September 18, 2024

Section 481-1-5 - Enforcement and disciplinary actions

A. Procedures for Processing of Complaints

(1) When the Board receives a written complaint or documentation of enforcement action taken by the Department, or initiates a complaint on its own motion, the staff will open a file under the installer's, inspector's, or applicant's name. Staff will review the file and correspond with the installer, inspector, or applicant; the complainant, and any other involved parties requesting necessary information.

(2) In the initial correspondence, staff will:

(a) Provide the installer, inspector, or applicant; the complainant; and any other involved parties with a statement of their rights and with an explanation of the Board's rules and procedures for handling complaints;

(b) Seek from the complainant and other relevant parties a specific designation of the statute, regulation, order or license alleged to be violated; and

(c) Seek from the complainant and other relevant parties a factual statement sufficient to inform the installer, remover, or inspector with reasonable definiteness of the acts or practices alleged to be in violation of applicable law.

(3) When the requested information is received, staff will review the case file and prepare a written summary of the complaint. The written summary of the complaint will be sent to the installer, inspector, or applicant; the complainant; and any other involved parties, and will be presented to the Board at its next scheduled meeting.

(4) After considering the case, and prior disciplinary or other actions involving the same installer, inspector, or applicant, the Board will determine whether further disciplinary or other action is to be taken.

(5) If it is determined that no further disciplinary or other action should be taken by the Board on the complaint, staff will notify the parties in writing of the Board's decision.

B. Disciplinary Actions. Upon a finding that one or more of the grounds listed in 32 M.R.S.A. Section10015(2) exist, the Board may take one or more of the following disciplinary actions:

(1) Refuse to issue a certificate.

(2) Refuse to renew a certificate.

(3) Suspend or revoke a certificate pursuant to 5 M.R.S.A. Section10004.

(4) Issue a warning, censure or reprimand to a certified person or applicant. Each warning, censure and reprimand must be based on violations of different applicable laws, rules, or conditions or certification or on separate instances of actionable conduct or activity.

(5) Suspend a certificate for up to 90 days for each violation or instance of actionable conduct or activity. Suspensions may be set to run concurrently or consecutively and, in total, may not exceed one year. Execution of all or any portion of a term of suspension may be stayed pending successful completion of conditions or probation, although the suspension remains part of the certified person's record.

(6) Impose civil penalties of up to $1,500 for each violation or each instance of actionable conduct or activity. Civil penalties accrue to the Maine Ground and Surface Waters Clean-up and Response Fund.

(7) Impose conditions or probation upon an applicant or certified person. Probation may run for such time period as the Board determines appropriate. Probation may include such conditions as: additional continuing education; medical, psychiatric or mental health consultations or evaluations; mandatory professional or occupational supervision of the applicant or certified person; and such other conditions as the Board determines appropriate. Cost incurred in the performance of terms of probation is borne by the applicant or certified person. Failure to comply with the conditions or probation is grounds for disciplinary action against a certificate holder.

C.Adjudicatory Hearings

(1) The Board may call and conduct adjudicatory hearings to assist with investigations, to determine whether grounds exist to take any disciplinary action permitted by subsection B of this section, deemed necessary to the fulfillment of its responsibilities.

(2) Before taking action under subsection B of this section the Board shall afford the installer, inspector, or applicant; an opportunity for an adjudicatory hearing to the extent required by 5 M.R.S.A. Sections10003 and 10004.

(3) All adjudicatory hearings shall be conducted in accordance with the Maine Administrative Procedure Act (5 M.R.S.A. Chapter 375) and the Board's Rules of Practice and Procedure Governing Adjudicatory Proceedings (Chapter 2).

D.Surrender of Certificate. The Board may require surrender of certificates. In order for a certified person's surrender of a certificate to be effective, a surrender must first be accepted by vote of the Board. The Board may refuse to accept surrender of the certificate if the certified person is under investigation or is the subject of a pending complaint or proceeding unless a consent agreement is first entered into pursuant to subsection E of this section.

E.Administrative Consent Agreements

(1)Request for Disposal of Proceedings by Administrative Consent Agreement. At any time prior to a scheduled final Board decision to take disciplinary action, an installer, inspector, or applicant subject to such disciplinary action may file with the Board a statement indicating his or her desire to dispose of the complaint by the entry of an Administrative Consent Agreement. On receipt of such statement, the staff shall notify the Board and the installer, inspector, or applicant that any scheduled hearing or final decision has been stayed. Within thirty (30) days after receiving notice of such stay, an agreement agreed to by staff and signed by the installer, inspector or applicant, and conforming to the requirements of this subsection, shall be submitted to the Board.

(2)Contents of the Administrative Consent Agreement. Every Administrative Consent Agreement must contain, in addition to an appropriate order, an admission of all jurisdictional facts and express waivers of further procedural steps before the Board and of the installer's, inspector's, or applicant's right to appeal. The agreement also must contain provisions specifying the corrective or remedial steps to be taken, including suspension or surrendering of the installer's, or inspector's certificate, and that the Administrative Consent Agreement does not become part of the official record unless and until it is accepted by the Board. In addition, the Administrative Consent Agreement may contain a statement that the signing thereof is for settlement purposes only and does not constitute an admission by any party that the law has been violated as alleged in the notice.

(3)Disposition of Proposed Administrative Consent Agreement by the Board. Upon receiving a proposed Administrative Consent Agreement, the Board may:

(a) Accept it and issue the order agreed upon;

(b) Reject it, in which case the Board shall send a notice of rejection and a new date for hearing or final decision; or

(c) Take such other action as the Board deems appropriate.

(4) If no proposed Administrative Consent Agreement is received by the Board within the thirty (30) day period prescribed by this subsection, the Board shall proceed as though such Administrative Consent Agreement had been presented and rejected. The provisions of this subsection do not preclude settlement of the complaint in any other manner.

F.Record Keeping

(1) All information regarding a complaint will be kept on file in the Department of Environmental Protection, Bureau of Remediation and Waste Management.

(2) Each complaint file will contain all relevant documents, correspondence, and reports. In order to insure the timely handling of each complaint, a flow sheet will document the date of each request for information, receipt of materials and Board action.

(3) Each file will contain a written summary of the complaint prepared by staff.

(4) If a hearing is held, all written documents and exhibits accepted into the record and the transcript of the hearing will be included in the case file.

(5) Staff will present a summary of all active complaints and their status at each Board meeting, and will prepare an annual report on all complaints handled during the preceding calendar year.

06- 481 C.M.R. ch. 1, § 5