Subdivision I. Environmental Board
[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.
Special meetings may be called by the Chair, the Chair designated for a particular matter, or any four members of the Board.
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.
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.
(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.
[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.
[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.
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.
(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.
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.
(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.
The Board is not required to make itemized express findings on these factors.
(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.