Compliance Enforcement Response Policy

1. Compliance & Enforcement Response Policy Proposed Changes

2. Table of Contents Introduction & Purpose Statutory Authority Applicability and Scope Definitions Goals A. Education B. Compliance C. Enforcement D. Permitting Implementation A. Education B. Compliance Self Certifications Certificates of Compliance Receiving Complaints Site Inspections/ Investigations Timeframes C. Enforcement 1. Responses 2. Types of Responses On-Site Resolution Letter of Warning Notice of Violation Administrative Settlement Agreement Enforcement Action Administrative Order by Consent Referral to Attorney General

3. Timeframes for Response Calculation of Civil Penalty a. Calculation of Base Penalty b. Penalty Adjustment Component 1) Good faith efforts 2) Degree of willfulness and /or negligence; 3) History of noncompliance; c. Allowing Non Conformance by Agreement d. Economic Benefit Derived from Noncompliance e. Inability to Pay f. Penalty Offset Provision g. Other unique Factors h. Multiple and Multi-day Violations Delegation Executive Session D. Permitting Landowner Responsibilities Contractor/Agent Responsibilities Settlement Agreements Enforcement Actions Interagency Coordination Effective Date

4. I. Introduction & PurposeII. Statutory AuthorityIII. Applicability & Scope Few changes Still serves as Guidance and not a judicial civil penalty policy Commission may act at variance with policy as appropriate to accomplish its legal mission

5. IV. Definitions Deviation from Standard Major Moderate Minor Potential for Harm Major Moderate Minor

6. Deviation from Standard- Major Major (>50%): When the activity or development deviates from the Standard, as specified in Chapter 10 of the Commission's Land Use Districts and Standards, by more than 50% for any specified requirement, or the activity or development overall deviates from or exceeds more than 50% of the applicable standards.

7. Deviation from Standard - Moderate Moderate (25%-50%): When the activity or development deviates from the Standard as specified in Chapter 10 of the Commission's Land Use Districts and Standards by between 25% and 50% for any specified requirement, or the activity or development overall deviates from or exceeds 25% to 50% of the applicable standards.

8. Deviation from Standard - Minor Minor (<25%): When the activity or development deviates from the applicable Standard, as specified in Chapter 10 of the Commission's Land Use Districts and Standards, by less than 25% for any specified requirement and the activity or development overall deviates from or exceeds the applicable standards by less than 25%.

9. Potential for Harm - Major Major: Actual and significant environmental damage has occurred as a result of this activity; or the potential exists for extensive or severe environmental damage due to erosion, siltation, sedimentation, loss of habitat, threat to endangered or threatened species or communities, contamination or degradation of surface or ground water supplies, adverse effects on the natural or man-made character of the area, because of the nature of the activity, the sensitivity of the affected area to such activity, the size of the affected area, or the length of time the violation remains/ed unmitigated;

10. Potential for Harm � Major(Continued) or there are clear zoning, public safety or health issues, or threats to the regulatory program attributable to the activity which may constitute a major public impact. Remediation of the site will generally require considerable site modification, or rezoning, or consideration by the Commission of a Variance or Permit by Special Exception in order to bring the development or activity into compliance.

11. Potential for Harm - Moderate Moderate: No significant environmental degradation associated with the specific activity. However, there are clear negative environmental or regulatory effect(s) associated with the cumulative impact of such activity if left uncorrected or unregulated. There may be minor siltation, erosion or other environmental damage associated with the activity, but such adverse effects can be and are promptly remedied by site stabilization and/or a moderate amount of site remediation; or the activity may have moderate public impact, due to zoning, public safety, or public health issues, with one or more neighboring properties being affected. If inappropriate zoning is a factor, the activity must successfully meet the criteria for rezoning in order for it to be considered as a moderate violation. There may also be potential public safety and/or health issues associated with the activity.

12. Potential for Harm - Minor Minor: Little or no actual environmental damage associated with the specific activity. Potential exists for environmental damage or threat to the regulatory program due to cumulative effect of similar activities if left uncorrected or unregulated. The matter requires little or no remediation to stabilize the site and bring it into compliance. No significant public safety or public health issues attributable to this activity, and little or no direct public impact.

13. V. Goals Goals were not specifically addressed in the previous version Goals have been stated in all components, Education, Compliance, Enforcement, and Permitting Relationship between all components is addressed

14. V. Goals - Education Goal: Administer an effective education program in regard to the laws, regulations and standards of the Commission in order to ensure landowner, contractor and general public awareness and knowledge of such rules by: Continuing the use of the Regional Field Offices as a way of giving direct education and information to our customers. Conducting site visits when necessary to help give customers the right information at the right time to help them achieve compliance by education on LURC�s rules, regulations, and standards. Utilizing innovative ways of getting information regarding LURC and the laws, rules and standards out to the public (general or specific).

15. Goals - Compliance Goal: Provide an effective program for determining compliance with the laws, rules, regulations, and standards of the Commission by: Utilizing Staff from Regional Field Offices to adequately review the sites of completed projects or activities to effectively determine compliance with the Commission�s laws, rules, regulations and standards. Determining the types of projects or activities that have a low level of compliance Addressing methods of educating and increasing compliance for the types of projects, activities, or standards that have a low level of compliance.

16. Goals - Enforcement Goal: Carry out a balanced enforcement effort to identify and investigate violations of laws and legal requirements administered by the Commission. Use appropriate actions to ensure compliance, resolve violations, and ensure future deterrence by: Continuing the use of the Regional Field Offices as a point of direct contact for receiving complaints of alleged violations. Properly investigating and if necessary conduct site inspections of received complaints. Properly document and address all applicable violations. Working with applicant, landowners, contractors, and any other responsible parties to ensure compliance and resolve violations in a fair and consistent manner. Utilize Staff experience, knowledge, and skill in the most efficient and effective manner.

17. Goals - Permitting Goal: Provide a timely, efficient, and consistent review of all applications. Render decisions that are in accordance with the statute, laws, rules, regulations, and Comprehensive Land Use Plan. The decisions permit documents, and additional materials shall add value and be clearly understood and enforceable. Utilize the permit review as a way of educating the applicant to help prevent future compliance issues by: Creating a process for permit writers to review completed projects/activities to ensure consistent compliance. Using lessons learned to create enforceable permit conditions and decisions. Utilizing staff knowledge to determine areas that need to be made known to applicants such as past issues in similar situations or issues that usually are done in non-compliance.

18. VI. Implementation Methods of reaching goals Some methods being done now Relationship between education, compliance, enforcement, and permitting

19. Implementation - Education Much of the educational outreach will be general in nature and not entirely specific to compliance and enforcement, yet it will help to ensure additional knowledge of LURC and its rules which will help in the overall compliance with those rules. Some educational methods will be very specific in relation to compliance and enforcement. Some of those are listed below.

20. Implementation - Education Continuing the use of the Regional Field Offices as a way of giving direct education and information to our customers. Maintain regular office hours Available for site visits both pre and post construction Staff shall be available to provide training to groups, associations.

21. Implementation - Education Utilizing innovative ways of getting information regarding LURC and the laws, rules and standards out to the public (general or specific). Utilizing the Maine Revenue Service yearly mailing and other methods to get important applicable information Utilize mass mailings to landowners in a certain area that has many similar compliance issues. Offer education to specifically address the concerns. Ads paid by violators as terms of a Settlement Agreement As part of agreement in some cases have an ad that addresses the educational component of a certain type of violation

22. Implementation - Education Recording conditions in Registry of Deeds Record Settlement Agreements to educate future landowners of a property regarding the conditions established Utilize press releases for all Settlement Agreements and all Enforcement Actions that are decided by the Commission. The press release should have the following information: The person(s) responsible, location, and any waterbodies; Nature of the violation; Penalty and required remedial action; Education of why the rules exist governing the violation, potential harm of violation, reason for remedial action, etc. LURC Contact LURC website for others to contact appropriate staff for any other similar concerns

23. Implementation - Compliance Utilizing Staff from Regional Field Offices to adequately review the sites of completed projects or activities to effectively determine compliance with the Commission�s laws, rules, regulations and standards. Conduct inspections of completed projects/activities that were permitted by the Commission. Issue Certificates of Compliance when appropriate

24. Implementation - Compliance Determining the types of projects or activities that have a low level of compliance Review and track past and ongoing compliance issues Addressing methods of educating and increasing compliance for the types of projects, activities, or standards that have a low level of compliance. Use educational components to address types of activities with low compliance

25. Compliance - Procedures Self Certifications Certificates of Compliance Receiving Complaints Site Inspections/ Investigations

26. Compliance �TimeframesSelf Certification Self Certification Initial Review: 5 days This review will compare the Self-Certification Form to the Permit. In some cases, if staff can determine from the photos that no issues exist, a site inspection may not be necessary. Site Inspection: 30 days (if built differently or concerns) 180 days (if no concerns) If it is determined the site is not in compliance Staff will work with the applicant to try to have the issues corrected. If that does not easily occur enforcement response will be initiated. The timeframes and process for that will be discussed in the Enforcement Response Section.

27. Compliance � TimeframesCOC Certificate of Compliance: Initial Review/Log In: 5 days Compliance Site Inspection: 30 days Certificate of Compliance Issued: 45 days This is based on a site in compliance. If the site is not in compliance, staff will first work with the applicant on corrective actions that may be taken to bring the site into compliance so that a COC can be issued. This may result in a significantly longer timeframe. If the site cannot be brought into compliance a COC denial will be issued and an enforcement response initiated. The timeframes and process for that will be discussed in the Enforcement Response Section.

28. Compliance �TimeframesComplaints Initial Review: 5 days This initial review will consist of reviewing background information, specifically the files to see if a permit exists for the site and determining if the activity is actually permitted. Site Investigation: 15 days (If active problems) 180 days (If no active problem) Depending on the nature of the activity described in the complaint, staff will make a determination if the site has an active problem such as ongoing erosion and sedimentation or if the activity is still under construction. In those cases a much quicker site investigation will occur to help prevent more issues from occurring. If the activity is already complete and not actively causing a problem, such as a structure built too close to a setback, the time to get out for an investigation may take longer. If the Commission finds a violation, an enforcement response will be initiated. The timeframes and process for that will be discussed in the Enforcement Response Section.

29. Implementation- Enforcement Continuing the use of the Regional Field Offices as a point of direct contact for receiving complaints of alleged violations. Properly respond to all complaints Properly investigating and if necessary conduct site inspections of received complaints. Properly document and address all applicable violations. Respond to complaints in a timely and timely manner as specified in timeframes below Working with applicant, landowners, contractors, and any other responsible parties to ensure compliance and resolve violations in a fair and consistent manner. Use fair, consistent and ways of addressing penalties and other enforcement responses Utilize Staff experience, knowledge, and skill in the most efficient and effective manner. Utilize Regional Representatives with knowledge of the region to initiate enforcement activities. Handoff cases to a Senior Investigator at an appropriate time

30. Implementation- EnforcementResponses On-Site Resolution Letter of Warning Notice of Violation Administrative Settlement Agreement Enforcement Action Administrative Order by Consent Referral to Attorney General

31. Implementation- EnforcementResponses Immediate On-site Resolution. This is an informal approach used on a site when very minor infractions occur or may occur and where immediate direction to the respondent will prevent or immediately correct the deficiency. Some examples of on-site resolution may be having the respondent relocate or remove a portion of a structure that is too close to a setback, correct inadequate erosion or sediment controls, or apply for an after-the-fact permit for structures or activities that were conducted without a permit. This is typically handled by the LURC Staff Regional Representative.

32. Implementation- EnforcementResponses Letters of Warning. This is a written notice which identifies and explains the violation, and cites the standard violated, and states that if compliance is not achieved within a specified period; further enforcement action will be initiated. As with On-Site Resolution it is used for minor infractions where some response or minor corrective action by the respondent is required. It can be used to further explain and clarify to a respondent items that were previously discussed and corrective actions that may lead to On-Site Resolution. This is typically handled by the LURC Staff Regional Representative.

33. Implementation- EnforcementResponses Notice of Violation. This is a more formal written notice which identifies and explains the violation, cites the appropriate provision violated, prescribes actions to be taken to bring about compliance, and either sets out a schedule for compliance, requires the respondent to submit a proposed schedule or requires certification of compliance. Depending upon the nature of the violation or the responsiveness of the respondent, a Notice may or may not be followed by further enforcement action. It is used for all moderate and major violations. The Notice is typically handled by the LURC Staff Regional Representative. In most cases, after the Notice has been sent, and if the issue is not quickly resolved, the case is then handed off to a Senior Investigator for further action.

34. Implementation- EnforcementResponses Administrative Settlement Agreement. This is an administrative action whereby the commission, through its staff, negotiates a settlement of violation with the respondent. Participation by the respondent is on a voluntary basis. The settlement agreement is a three party agreement between the Commission, the respondent and the Department of Attorney General and is contractually binding on the parties. Such agreements must be ratified by the Commission at a scheduled Commission meeting. Principal elements of a settlement agreement ordinarily include the following: identification of the respondent and location of property or business; the Commission�s regulatory authority over the matter admission of responsibility for the violation description of the violation corrective measures that must be taken by the respondent to bring about compliance and time schedule for implementation of those measures; payment of a monetary penalty to the State; waiver of rights of appeal by the respondent; and conditional release by the Attorney General and Commission for causes of action they may have against the respondent.

35. Implementation- EnforcementResponses Enforcement Action. An Enforcement Action may be utilized if negotiations fail to obtain a settlement agreement. Since the Settlement Agreement is a negotiated Agreement, if the respondent is not willing to negotiate or accept that a violation occurs, no agreement will be reached and the Commission will need to take further action. The Enforcement Action is the next tool to use to reach resolution. An Enforcement Action is prepared by Staff and presented to the LURC Commission at a regularly scheduled monthly meeting. It has many of the same components as the Administrative Settlement Agreement with the exception of an agreement being reached. It serves as a way for staff to present to the Commission the case and the issues involved and also for the respondent to allow review at a new level. Staff brings the action to the Commission asking for a decision to be made on a staff recommendation. Principal elements of an enforcement action ordinarily include the following: Typical elements of a settlement agreement ordinarily include the following: identification of the respondent and location of property or business; description of the violation; the Commission�s regulatory authority over the matter; a copy of the latest Settlement Agreement that has been submitted by the Commission to Respondent; a description of the latest counter proposal (if any) from the Respondent; a Staff Recommendation for a Commission vote.

36. Implementation- EnforcementResponses The Staff Recommendation may ask for different decisions depending on the particular case. Some recommendations may be as follows: Commission support of staff�s direction on the latest Settlement Agreement (with or without modifications) and authorization to continue working towards an agreement; Authorization for Staff to pursue the use of Court Rule 80K. Commission Authorization for Referral to Attorney General. The authorization to prepare a recommendation for referral does not mean that it will now be referred to the Attorney Generals Office but instead gives staff authorization to discuss the matter with the Attorney General�s Office.

37. Implementation- EnforcementResponses Administrative Order by Consent. This is an administrative action by the Commission involving consent of the respondent that directs the respondent to return to compliance within a certain period by taking certain prescribed actions. Prior to the issuance of compliance order, the Commission may hold an enforcement hearing on the violation and provide prior written notice of that hearing to the respondent.

38. Implementation- EnforcementResponses Referral to Department of Attorney General. Following staff consultation with the Attorney General�s office and mutual determination of enforcement priorities and possible courses of action, the Commission may refer a violation to the Attorney General�s Office for judicial prosecution. This may be done after an Enforcement Action has already occurred or in the case of extreme cases may be done without any prior enforcement action. Upon referral of the matter to the Attorney General�s Office, Commission, staff will assist the Attorney General�s Office in case preparation and prosecution, as requested by the Attorney General lawyer assigned to the case.

39. Implementation- EnforcementTimeframes These responses are starting from a point when it has been determined that a violation exists. These timeframes follow the timeframes listed for compliance and receiving complaints. The timeframes listed are the total time from determination of a violation to resolution. Initial contact with respondent: 10 days Staff request for On-Site Resolution: 15 days Letter of Warning 30 days Notice of Violation: 60 days Settlement Agreement to Respondent: 90 days Settlement Agreement Signed/Ratified: 120 days Enforcement Action to Commission: 150 days Resolution, Rule 80K initiation, 180 days or referral to Attorney General:

40. Penalty Calculation Worksheet addressing all factors Calculation of Base Penalty Penalty Adjustment Component Allowing Non Conformance by Agreement New factor Economic Benefit Derived from Noncompliance Inability to Pay Penalty Offset Provision Other unique Factors Multiple and Multi-day Violations

41. Penalty Calculation Base Penalty Calculation of Base Penalty Potential for harm Deviation from standards additions and changes to definitions Percentage of deviation Same matrix

42. Penalty CalculationPenalty Adjustment The seriousness of the violation determines the base penalty. The reasons the violations was committed, the intent of the person who committed the violation, and other factors related to the respondent are not considered in choosing the appropriate penalty from the matrix. However, any penalty system must be flexible enough to make adjustments to reflect legitimate differences between similar violations and still result in equitable treatment given the circumstances involved. The adjustment factors can increase, decrease or have no effect on the penalty amount paid by the respondent. This section sets out several adjustment factors that should be considered. Good faith efforts Degree of willfulness and /or negligence; History of noncompliance

43. Penalty CalculationAllowing Non-Conformance The penalty matrix for a base penalty is based on a site being brought into full compliance. If for whatever reason, a site is allowed to have non conformance allowed by agreement, the penalty may be adjusted so as to reflect that non conformance. The additional cost will be added to the base penalty. The penalty may be adjusted high enough so as to prevent respondents from �buying their penalty�. Restrictions on the property also will still apply Various factors reviewed by staff and management to determine if non conformance is to remain

44. Penalty CalculationEconomic Benefit This component includes consideration of the economic benefit of noncompliance to a respondent when penalties are assessed. An �economic benefit� component is calculated and added to the base penalty when a violation results in significant economic benefit to the respondent. Where it appears the economic benefit derived is diminimus, staff need not include an economic benefit assessment when arriving at a penalty amount. Economic benefit may be derived from either cost savings or direct economic gain.

45. Penalty CalculationInability to Pay There is little to be gained from seeking penalties that are demonstrated beyond the means of the respondent. Therefore, the Commission should consider the ability of a respondent to pay a penalty. The burden of proof to demonstrate a respondent cannot afford to pay a portion of a penalty, the Commission may consider the following options. A delayed payment schedule; Installment payment plan, with or without interest; A suspended penalty with only a portion of the payment being required initially with the rest being paid when and if certain conditions occur such as the sale or transfer of the property; and Direct penalty reductions. Amount of any downward adjustment of a penalty is dependent upon the individual financial circumstances of the respondent.

46. Penalty CalculationPenalty Offset Provision The monetary penalty may be partially offset when the respondent proposes as part of a settlement agreement to undertake an activity that will provide environmental or land use benefits to the State beyond what is required to bring a site or activity into compliance. The monetary penalty actually paid and the amount allowed as an offset together must be greater than 125 percent of the penalty that would otherwise be assessed if an offset was not applies. The decision to allow an offset is wholly discretionary with the Commission and Attorney General when they determine there is a significant benefit to the public interest. Direct environmental or land use benefits along with indirect benefits that may result from an educational component as discussed earlier in this document may be allowed under this provision. An example may be ads paid for by a respondent to offset a penalty payment that will have the benefit of educating others to prevent further non compliance.

47. Penalty CalculationOther Unique Factors This policy allows for a limited adjustment for unanticipated and unusual factors which may arise on a case-by-case basis, at the discretion of the Commission.

48. Penalty CalculationMultiple and Multi-Day A separate penalty may be assessed for each violation that results from an independent act (or failure to act) by the respondent and is substantially distinguishable from any other violations. In general multiple penalties are not appropriate where the violations are not independent or significantly distinguishable. In those circumstances, the violation should be cited in a settlement agreement, but one penalty only should be assessed. 12 M.R.S.A. � 685-C (8) provides the Commission with authority to seek penalties up to $ 10, 000.00 per violation day, with each day that noncompliance continues to be assessed as a separate violation. Multi-day violations generally should be calculated in the case of continuing egregious violations. However, a per day assessment may be appropriate in other cases as well.

49. Permitting Creating a process for permit writers to review completed projects/activities to ensure consistent compliance. Self-Certifications, COC�s Using lessons learned to create enforceable permit conditions and decisions. Having Regional Representatives conduct compliance and initial enforcement will allow them to see firsthand the issues that need to be addressed. Utilizing staff knowledge to determine areas that need to be made known to applicants such as past issues in similar situations or issues that usually are done in non-compliance. Increasing staff knowledge and cross training will also help with this issue.

50. Landowner and Contractor Responsibility The Commission finds that owners of land on which regulated activities occur are responsible for those activities. As such, they will be held responsible for assuring that the actions undertaken on their lands, including those by contractors, are in compliance with all applicable Commission requirements. The Commission recognizes, however that in certain limited circumstances it may be appropriate to pursue enforcement against a contractor for a violation. In determining whether to pursue an action against a contractor, the Commission will consider the following: Nature of the activity which resulted in the violation; Impact of the activity on the land owners; Land owner�s involvement in planning, arranging for, supervising, conducting, or allowing the activity; Land owner�s knowledge of the activity; Competitive advantage or other benefit gained by a contractor by the act of noncompliance; Deterrent effort to be realized by the Commission�s enforcement response to the violation; and Such other factors as are relevant to a particular case.

51. Future Comments? Staff Recommendation in September