Appeals

(1) Any Claimant aggrieved by the denial of a Claim or by any other action of the Board in connection with a Claim may, within 60 days of the final determination or other final action of the Board, file a Request for Reconsideration with the Board. A Request for Reconsideration shall be, in a manner required by the Board, a clear and concise written statement of the matter as to which the Claimant seeks the Board to reconsider its final determination or other final action, and the reason the Board should make a favorable determination on such Request for Reconsideration. Such statement shall set forth either new evidence that was not reasonably available at the time of initial consideration, or the reason or reasons why the Board's initial decision was inconsistent with 503 CMR 2.00. (2) Upon receipt of a Request for Reconsideration, the Board shall determine whether the Request for Reconsideration has been filed in compliance with 503 CMR 2.00. (3) A Request for Reconsideration shall be found to be filed in compliance with 503 CMR 2.00 if it: (a) was filed within the time limits and in the manner provided by 503 CMR 2.00; and (b) requests the Board to reconsider a denial of a Claim or other final action in connection with a Claim but does not include a challenge to the authority of the Board under 503 CMR 2.00 or under M.G.L. c. 21J, orto the legal effectiveness of 503 CMR 2.00. Such challenges may be brought pursuant to 503 CMR 2.22 and M.G.L. c. 21J, and as otherwise provided by law. (4) If the Board determines that a Request for Reconsideration has not been filed in compliance with 503 CMR 2.00, the Board shall deny the Request for Reconsideration in writing. The written notice of the Board denying the Request for Reconsideration shall constitute final action by the Board for purposes of 503 CMR 2.22. (5) If the Board determines that a Request for Reconsideration is filed in compliance with 503 CMR 2.00, the Board shall review the matter for which the Claimant is seeking Reconsideration and on the basis of such review reconsider the matter and take action as it deems appropriate under 503 CMR 2.00. (6) The Board shall notify the Claimant in writing of the Board's determination. Such action shall constitute final action of the Board in response to the Request for Reconsideration for purposes of 503 CMR 2.12. A final action of the Board in response to a Request for Reconsideration is not eligible except as a Conference pursuant to 503 CMR 2. 1 8(7). (7) Conference with a Three-member Panel. (a) An Applicant may request a Conference with a Three-member Panel of the UST Board. The Three-member Panel determines if the UST Fund staff properly interpreted the provisions ofM.G.L. c. 21J and 503 CMR 2.00 with respect to a particular application. The Three-member Panel, in its discretion, may review an Applicant's request for Conference based on the Hardship provisions contained in 503 CMR 2. 1 8(7)(d). (b) All terms in 503 CMR 2. 18(7) shall have the same meaning as the same terms described in M.G.L. c. 21J and 503 CMR 2.02. (c) The following administrative provisions shall apply to Conferences with a Three-member Panel of the UST Board: 1 . A Conference with a Three-member Panel of the UST Board is available for any action decided by the UST Board after July 1, 2004. 2. Only Claimants who filed a Claim and a Request for Reconsideration and were aggrieved at both the Claim and the Request for Reconsideration stages may request a Conference, except if the Claim, or a portion of the Claim, was denied based on failing to meet procedural filing deadlines, in which case the Claimant may waive its rights to a Reconsideration and immediately request a Conference. Applicants who have filed an Application for Eligibility, an Application for a Certificate of Compliance, or Application for Renewal of a Certificate of Compliance and were aggrieved by the Board's initial decision regarding the Application may request a Conference by filing a request within 30 calendar days of the electronic notification or mailing of the Board's written determination. Timely receipt of a request for a Conference is determined by the provisions of 503 CMR 2.03(3). 4. A request for a Conference must be filed within thirty calendar days of the date of the Board's written determination regarding the Claimant's Request for Reconsideration. Timely receipt of a request for a Conference is determined by the provisions of 503 CMR 2.03(3). A Claimant who has filed an action in either the Supreme Judicial Court or the Superior Court may not request a Conference with respect to the same matter. 6. The Executive Director may schedule a Conference with a Three-member Panel and shall notify the Three-member Panel of the date, time and location of the Conference. The UST Board shall review all denials of Requests for a Conference. 7. The chairperson of the UST Board shall appoint three Board members who will serve on the Three-member Panel. The chairperson of the UST Board shall designate one Board member to serve as the chairperson of the Three-member Panel. The Applicant and/or Applicant's representative may attend the Conference. An Applicant who is not present and is represented by another person shall provide DOR UST Program with prior written authorization appointing that individual his or her representative at the Conference. At the Board's discretion, the Board may revoke the Applicant's right to Conference if the Applicant fails to attend the scheduled Conference hearing. 9. Conferences are informal and the rules of evidence do not apply. Testimony under oath is not required. A transcript or formal record of the proceeding is not made. The Three-member Panel may request that any matter(s) asserted as fact be sworn to under the pains and penalties of perjury. 10. The designated chairperson of the Three-member Panel or the UST Fund Staff shall summarize the contested issues, allow the Applicant or its representative to present the Applicant's position and allow a member of the UST Fund Staff to provide any additional information. The Three-member Panel may ask questions. The chairperson of the Three-member Panel may limit the amount of time allowed the Applicant or representative to present the Applicant's position. 11. The Three-member Panel may request additional information and shall establish a date for its submission. The UST Fund Staff shall have the opportunity to review and to comment on the additional information. 12. The Three-member Panel may choose not to make a Decision. If the Three-member Panel does not make a Decision, the Executive Director, or his or her designee, will consult with each member and determine the opinion of each member regarding the issue(s). The Executive Director or his or her designee shall present the Decision of the Three-member Panel to the UST Board no later than the second scheduled UST Board meeting following the Conference or the receipt of the additional information. 14. The Executive Director or his or her designee shall present to the full UST Board the relevant facts, the contested issues, and the Decision of the Three-member Panel. The UST Board shall issue a written Conference Determination and the written Conference Determination of the UST Board will be forwarded to the Applicant. 15. Conference Determinations of the UST Board may not be relied upon as precedent in subsequent or other matters within the jurisdiction of the UST Board. 16. The UST Board or Three-member Panel may make a Conference Determination that refers the matter to the UST Fund Staff for further review. Any further review shall conform to the procedural and substantive requirements of M.G.L. c. 21J and 503 CMR 2.00. 17. Only a Claimant aggrieved by the Conference Determination of the UST Board may seek relief pursuant to 503 CMR 2.22. 2. 18: continued Applicants who have filed an Application for Eligibility, an Application for a Certificate of Compliance, or Application for Renewal of a Certificate of Compliance and were aggrieved by the Board's initial decision regarding the Application may request a Conference by filing a request within 30 calendar days of the electronic notification or mailing of the Board's written determination. Timely receipt of a request for a Conference is determined by the provisions of 503 CMR 2.03(3). 4. A request for a Conference must be filed within thirty calendar days of the date of the Board's written determination regarding the Claimant's Request for Reconsideration. Timely receipt of a request for a Conference is determined by the provisions of 503 CMR 2.03(3). A Claimant who has filed an action in either the Supreme Judicial Court or the Superior Court may not request a Conference with respect to the same matter. 6. The Executive Director may schedule a Conference with a Three-member Panel and shall notify the Three-member Panel of the date, time and location of the Conference. The UST Board shall review all denials of Requests for a Conference. 7. The chairperson of the UST Board shall appoint three Board members who will serve on the Three-member Panel. The chairperson of the UST Board shall designate one Board member to serve as the chairperson of the Three-member Panel. The Applicant and/or Applicant's representative may attend the Conference. An Applicant who is not present and is represented by another person shall provide DOR UST Program with prior written authorization appointing that individual his or her representative at the Conference. At the Board's discretion, the Board may revoke the Applicant's right to Conference if the Applicant fails to attend the scheduled Conference hearing. 9. Conferences are informal and the rules of evidence do not apply. Testimony under oath is not required. A transcript or formal record of the proceeding is not made. The Three-member Panel may request that any matter(s) asserted as fact be sworn to under the pains and penalties of perjury. 10. The designated chairperson of the Three-member Panel or the UST Fund Staff shall summarize the contested issues, allow the Applicant or its representative to present the Applicant's position and allow a member of the UST Fund Staff to provide any additional information. The Three-member Panel may ask questions. The chairperson of the Three-member Panel may limit the amount of time allowed the Applicant or representative to present the Applicant's position. 1 1 . The Three-member Panel may request additional information and shall establish a date for its submission. The UST Fund Staff shall have the opportunity to review and to comment on the additional information. 12. The Three-member Panel may choose not to make a Decision. If the Three-member Panel does not make a Decision, the Executive Director, or his or her designee, will consult with each member and determine the opinion of each member regarding the issue(s). 13. The Executive Director or his or her designee shall present the Decision of the Three-member Panel to the UST Board no later than the second scheduled UST Board meeting following the Conference or the receipt of the additional information. 14. The Executive Director or his or her designee shall present to the full UST Board the relevant facts, the contested issues, and the Decision of the Three-member Panel. The UST Board shall issue a written Conference Determination and the written Conference Determination of the UST Board will be forwarded to the Applicant. 15. Conference Determinations of the UST Board may not be relied upon as precedent in subsequent or other matters within the jurisdiction of the UST Board. 16. The UST Board or Three-member Panel may make a Conference Determination that refers the matter to the UST Fund Staff for further review. Any further review shall conform to the procedural and substantive requirements ofM.G.L. c. 21J and 503 CMR 2.00. 17. Only a Claimant aggrieved by the Conference Determination of the UST Board may seek relief pursuant to 503 CMR 2.22. (d) The following provisions apply to requests by an Applicant for a Conference based on Hardship: 1. The Board may, in accordance with the purpose of M.G.L. c. 21J and 503 CMR 2.00, grant an Applicant a request for Conference if the request is based, in whole or in part, on the Applicant's presentation of a hardship. Only a Claimant who filed a Claim and a Request for Reconsideration and was aggrieved at both the Claim and the Request for Reconsideration Stages can request a Conference based on hardship. Any Applicant may request a Conference based on hardship if the denial of an application, Claim, or a portion of a Claim, was based on an untimely filing pursuant to 503 CMR 2.10.