Code of Maine Rules › 06 - DEPARTMENT OF ENVIRONMENTAL PROTECTION › 096 - DEPARTMENT OF ENVIRONMENTAL PROTECTION - GENERAL › Chapter 3 - RULES GOVERNING THE CONDUCT OF LICENSING HEARINGS › Section 096-3-13 - Subpoenas

Current through 2024-29, July 17, 2024
Any party may request the issuance of a subpoena in the name
				  of the Department to require the attendance and testimony of witnesses and the
				  production of any evidence relating to any issue of fact in the licensing
				  proceeding. Prior to requesting a subpoena, the party shall exhaust all other
				  reasonable means of procuring attendance of the witness or the information
				  sought such as asking for voluntary attendance or submission of the
				  information. Such requests must be directed to the Presiding Officer for
				  determination and action.
A.
For Documents.
The Department may issue subpoenas pursuant to 38 M.R.S.
				§345-A(4) to compel the production of books, records and other data
				relevant to the matters in issue at a hearing. If any person served with a
				subpoena demonstrates to the satisfaction of the Department that the production
				of the information would, if made public, divulge methods or processes which
				are entitled to protection as trade secrets, or if the information is otherwise
				protected by law, the information shall be disclosed only at a non-public
				portion of the hearing and shall be confidential and not available for public
				inspection.
B.
For Attendance
				of Witnesses.
The Department may issue a subpoena compelling the
				attendance of a witness to provide testimony relevant to the matters in issue
				at a hearing if it first obtains the approval of the Attorney General or of any
				Deputy Attorney General pursuant to the Maine Administrative Procedure Act, 5
				M.R.S. §9060.
C.
Department Staff, Outside Agency Review Staff, and Department Hired
				Consultants.
Department staff, outside agency review staff, and Department
				  hired consultants who assist the Presiding Officer, Commissioner or Board as
				  described in section 5 are not subject to subpoena.
D.
Public Records.
Prior to
				requesting a subpoena for public records, the party shall exhaust all other
				means of procuring the documents including making a request for copies of
				public records pursuant to the Maine Freedom of Access Act.
E.
Form.
Subpoenas will be in
				the form used by the courts of the State. Every subpoena will bear the name of
				the Department, the name of the issuing officer, and the name and address of
				the party at whose request it was issued. Each subpoena will command the person
				to whom it is directed to attend and give testimony or produce specified
				documents or things at a designated time and place. The subpoena will also
				advise of the procedure to vacate or modify provided herein. Witnesses may only
				be subpoenaed within Maine's territorial limits and in the same manner as
				witnesses in civil cases before the courts, unless another territory or manner
				is provided by law.
F.
Service.
Service of a subpoena must be arranged by the requesting party
				and made by delivering a copy of the subpoena to the person named in it. Unless
				the witness will accept service by other means, a subpoena must be served by a
				person who is not a party to the proceeding and is not less than eighteen years
				of age. Fees for attendance and mileage must be served simultaneously with the
				subpoena and must be the same as those paid witnesses in the Superior Courts of
				this State and must be paid for by the party requesting the subpoena.
G.
Return.
The person serving
				the subpoena shall make proof of service by filing the subpoena and affidavit
				or acknowledgement of service with the Presiding Officer. Failure to make such
				proof of service shall not affect the validity of the subpoena and
				service.
H.
Vacating or
				Modifying Subpoena
. Any person subpoenaed to produce records or provide
				testimony may petition the Presiding Officer to vacate or modify a subpoena
				issued by the Department. The Department shall give prompt notice of such a
				petition to the party who requested issuance of the subpoena and all other
				parties. The Presiding Officer may vacate or modify the subpoena when, after
				such investigation as the Presiding Officer considers appropriate, he or she
				finds that:
1) the testimony or evidence
				whose production is required does not relate with reasonable directness to any
				matter in question in the licensing proceeding;
2) a subpoena for the attendance of a witness
				or the production of evidence is unreasonable or oppressive;
3) the subpoena has not been issued
				sufficiently in advance of the time specified for the appearance of the witness
				or the production of evidence;
4)
				the subpoena would require the disclosure of privileged or confidential
				material where no waiver or exception applies; or
5) the subpoena would require production of
				an un-retained expert's opinion, including experts employed by government
				agencies.
The decision to grant or deny a petition to vacate or modify
				  a subpoena must be in writing.