10-144 C.M.R. ch. 245, § 800 - Complaints and Investigations

A.A person who alleges charges of fraud, deceit, negligence, incompetence or violation of the following Rules against any Site Evaluator shall do so in writing to the Department.

CMR 241 - Maine Subsurface Wastewater Disposal Rules

CMR 242 - Rules for Conversion of Seasonal Dwelling Units into Year-round Residences in the Shoreland Zone

CMR 243 - Minimum Lot Size Rules

CMR 245 - Rules for Site Evaluators of Subsurface Wastewater Disposal Systems

B. The Department shall investigate all written charges, and all appearances of fraud, deceit, negligence, incompetence or violation of the abovementioned Rules arising from Departmental project reviews.

C. Complaint Response

1. Scope: This Section governs the means of responding to complaints made to or by the Department pertaining to allegations of fraud, deceit, negligence, incompetence or violation of these Rules against any Site Evaluator.

2.Complainant: For the purpose of this Section, the "complainant" is any party lodging a written complaint with the Department, including the Department, in regard to the conduct of a Site Evaluator, or a person lawfully acting on the behalf of such person(s).

3.Settlement:Parties to a Formal Conference or a Formal Administrative Hearing may negotiate a mutually acceptable settlement at any point during the proceedings.

4.General: The Department shall inform the complainant and the Site Evaluator in writing of its findings and conclusions resulting from its investigation of a complaint, and its intention, if any, to amend, modify, or refuse to issue or renew the Site Evaluator's license in accordance with the Maine Administrative Procedure Act, Title 5, chapter 375, subchapter V.

D. Progressive Discipline Procedure

1. General: The complaint investigation procedure shall consist of four (4) levels of investigation. It shall proceed in the following sequence:

Step 1: An informal conference between the Department and the Site Evaluator;

Step 2: A formal conference between the complainant, the Department and the Site Evaluator;

Step 3: A formal administrative hearing; and

Step 4: Revocation or suspension of a Site Evaluator's license through District Court pursuant to 22 MRSA, §42(3-A).

E. Basis for Informal Conference

1.An informal conference may be scheduled upon receipt of a written complaint or upon the Department's initiative. A person who alleges charges of fraud, deceit, negligence, incompetence or violation of the Rules against any Site Evaluator shall do so in writing and the complaint shall be filed with the Department. The complaint shall include the following:

A. Intention: The intended/ requested action; and

B. Reason(s): The reasons that support the intended action, including but not limited to:

(1) violation of the law or rules;

(2) misapplication of the law or rules; and/or

(3) factual mistake that is likely to affect the decision.

2.Limiting the issues: Before the informal conference, the complainant shall raise all issues upon which he or she bases the complaint; the Department may raise additional issues.

F. Informal Conference

1.Intent: This section sets forth the procedures to be used for informal conferences in response to complaints received by the Department, or investigations conducted pursuant to the Department's initiative.

2.Written notice: The Department shall forward a written notice for an informal conference to the Site Evaluator by first class mail. Failure to appear at the conference without just cause shall not be cause for a delay in action on the part of the Department.

3.Scheduling the conference: As soon as practicable, the Department shall notify the Site Evaluator of the date, time, and place of the informal conference.

4.Informal conference officer: The informal conference will be conducted by the Director of the Subsurface Wastewater Program of the Division of Environmental Health, or his or her designee.

5.Informal conference location: The Conference Officer shall schedule a conference in Augusta, Maine. If the complainant resides greater than 75 miles away from Augusta, the conference may be located at a mutual DHHS office location or via telephone conference call.

6.Representation: At the informal conference, the Site Evaluator may be represented by legal counsel. The Site Evaluator may bring other interested persons to the informal conference provided the Department is informed in advance.

7. Written decision: Following the informal conference, the Director of the Subsurface Wastewater Program shall issue a written decision to the Site Evaluator which shall specify the Department's findings and conclusions resulting from its investigation and shall provide a copy of that decision to the complainant.

G. Basis for Formal Conference

1.A formal conference may be scheduled upon receipt of a written complaint or upon the Department's initiative. A person who alleges charges of fraud, deceit, negligence, incompetence or violation of the Rules against any Site Evaluator shall do so in writing with the Department. The complaint shall include the following:

A. Intention: The intended/ requested action; and

B.Reason(s): The reasons that support the intended action, including but not limited to: (1) violation of the law or rules; (2) misapplication of the law or rules; and/or (3) factual mistake that is likely to affect the decision.

2. Limiting the issues: Before the formal conference, the complainant shall raise all issues upon which he or she bases the complaint; the Department may raise additional issues.

H. Formal Conference

1.Intent: This section sets forth the procedures to be used for formal conferences in response to complaints received by the Department, or investigations conducted pursuant to the Department's initiative.

2.Written notice: The Department shall forward a written notice for a formal conference to the Site Evaluator by first class mail. Failure to appear at the conference without just cause shall not be cause for a delay in action on the part of the Department.

3.Scheduling the conference: As soon as practicable, the Department shall notify the Site Evaluator and the complainant of the date, time, and place of the formal conference.

4.Formal conference officer: The formal conference will be conducted by the Director of the Subsurface Wastewater Program of the Division of Environmental Health, or his or her designee.

5.Formal conference location: The Conference Officer shall schedule a conference in Augusta, Maine. If the complainant resides greater than 75 miles away from Augusta, the conference may be located at a mutual DHHS office location.

6.Representation: At the formal conference, the Site Evaluator and the complainant may be represented by legal counsel. The Site Evaluator or the complainant may bring other interested persons to the formal conference provided the Department is informed in advance.

7.Written decision: Following the formal conference, the Director of the Subsurface Wastewater Program shall issue a written decision to the Site Evaluator which shall specify its findings and conclusions resulting from its investigation and shall provide a copy of that decision to the complainant.

I. Formal Administrative Hearing

If the complainant is dissatisfied with the written decision of the formal conference, the complainant may request an administrative hearing pursuant to the Maine Administrative Procedure Act, Title 5 M.R.S.A. Chapter 375, Subchapter IV., and the Department of Health and Human Services' Administrative Hearings Regulation, 10-144 CMR Ch. 1.

Notes

10-144 C.M.R. ch. 245, § 800