B.
STAFF DECISIONS
1. Unless
otherwise indicated in statute (e.g.
12 M.R.S.
§685-A(7-A)(B)(5)) or
as a condition of the permit or certification, a final action issued by the
staff is effective on the date the decision document is signed by the
staff.
2. Any person aggrieved by a
decision of the staff (e.g., regarding a permit, certificate of compliance,
notice of violation) has the right to a review of that decision by the
Commission. A request for such a review must be made in writing within 30 days
of the date of the staff decision.
C.
COMMISSION DECISIONS
1. To the extent practicable, copies of staff
recommendations for Commission decisions will be made available at least 7 days
prior to the date of expected decision, to the applicant, intervenors, and any
other person requesting to be so notified.
2. A decision of the Commission is considered
final on the date rendered by the Commission, unless the Commission receives a
request for a public hearing pursuant to Section
4.06(A) or
4.07(K) or as
otherwise indicated in statute (e.g.
12 M.R.S.
§685-A(7-A)(B)(5)) or
as a condition of the permit or certification. Where a request for a public
hearing is made, the decision of the Commission is considered final on the date
the Commission denies the request for public hearing or on the date of the
Commission's decision after a public hearing has been held.
D.
CORRECTIONS
1. Within 30 days following the effective
date of a permit, petition, or certification, any person aggrieved by the
decision or order of the Commission may petition to seek the correction of any
misstatement of fact or clerical error contained in the final decision or to
challenge any material fact of which the Commission took official notice
pursuant to
5 M.R.S.
§9058 and Chapter 5, Section
5.07(B) of the
Commission's rules. The Commission will determine whether to dismiss the
petition as without merit, to correct the error, to reopen the hearing pursuant
to Chapter 5, Section
5.10(D) of the
Commission's rules, or to take such other steps as it deems appropriate.
Failure to invoke the provisions of this section will have no effect upon an
aggrieved party's right of appeal to a court of law.
2. The Commission or Commission staff, as
applicable, will consider requests for correction within 30 days of receipt of
such request.
3. At any time, the
Commission may issue a corrected permit, certification, or petition in
accordance with Section
4.07(D).
4. The filing of a request for, or the
issuance of, a correction under Section
4.07(D) does not
serve to stay the deadlines for any appeal of a Commission decision, and the
effective date of any corrected decision must be the same as the original
decision.
F.
EXPIRATION
Except as provided in Sections
4.07(F)(1) through
(4) below or as otherwise authorized by the
Commission in the permit conditions of approval, development or uses authorized
by a permit must be substantially started within two years of the effective
date of the permit and substantially completed within five years of the
effective date of the permit:
1.
Permits Issued Prior to July 1, 2003 For permits issued prior to July 1, 2003
with no specified expiration dates, the expiration date is October 1,
2004.
2. Special Flood Hazard Areas
In special flood hazard areas, development or uses authorized by a permit must
be substantially started within 180 days of the effective date of the permit
and substantially completed within five years of the effective date of the
permit.
3. Subdivisions
Development authorized by a Commission approved subdivision
permit must be substantially started within four years of the effective date of
the permit and substantially completed within seven years of the effective date
of the permit.
Upon the Commission's determination that a subdivision permit
has expired under this paragraph, notice of such expiration must be recorded,
by the permittee or by the Commission at the permittee's expense, in the
appropriate Registry of Deeds.
4. Multi-phased Projects
For multi-phased projects or project expansions that are
permitted separately, final Commission approval of each phase or expansion will
be treated as a separate permit for the purposes of determining "substantial
start" and "substantial completion" for each phase or
expansion.
G.
RENEWALS
An application to renew a permit must be submitted prior to
the expiration of the permit.
1. If an
application to renew a permit is not timely submitted prior to expiration of
the permit, or is timely submitted but not accepted as complete for processing
in accordance with Chapter 4, Section
4.05(A)(5)(a), the
permit lapses.
2. If the renewal
application is timely submitted prior to the expiration of the permit and
accepted as complete for processing, the terms and conditions of the existing
permit remain in effect until the final Commission decision on the renewal
application.
3. The Commission may
renew a permit and extend by up to two years, either or both of the deadline
for a substantial start or for substantial completion.
4. Renewal applications to extend the
expiration date for projects that have not been substantially started are
subject to the procedural and substantive requirements in effect at the time of
acceptance of the renewal application.
I.
TRANSFER
1. Transfer of Commission permits is required
for all subdivisions, nonresidential development, or certifications, where
there is at the time of change in ownership:
a. development or activities that have been
authorized or required but are not yet completed, except accessory
structures;
b. other on-going
compliance obligations including outstanding conditions and long-term
operational or maintenance requirements;
c. condominium type residential development
involving more than four dwellings; or
d. nonresidential development cumulatively
involving more than 3 acres of total impervious area.
Except as may be required by the Constitution of Maine or
statute, all other permits carry forward with the land and therefore any change
in ownership thereof.
2. No later than two weeks after the transfer
of ownership of property subject to certain Commission permits or
certifications that meet one or more of the provisions of Section
4.07(I)(1), the new
owner must submit a transfer application for all relevant permits or
certifications that have not expired.
3. Pending determination on the application
for a transfer, the transferee must abide by all of the conditions of such
permit, and is jointly or severally liable with the original permittee for any
violation of the terms and conditions thereof. The transferee must demonstrate
to the Commission's satisfaction sufficient technical ability and financial
capacity, and the intent and ability to:
(a)
comply with all terms and conditions of the applicable permits, and
(b) satisfy all applicable statutory and
regulatory criteria.
J.
REVOCATION, SUSPENSION, AND
SURRENDER
1. The Commission may revoke
or suspend, or seek revocation or suspension of, permits or certifications
granted by it in accordance with applicable provisions of the Maine
Administrative Procedure Act and
12 M.R.S.
§685-C(8).
2.
Suspension.
Any permittee may propose to suspend activities for a period
specified as part of a permit transfer, permit application, or other
appropriate situations. The proposal must be made in writing and contain
sufficient detail for the Commission to understand the purpose and effect of
the suspension. If a proposed suspension is approved,
a. the Commission must confirm such
suspension, and any subsequent release from suspension, in writing;
and
b. the suspension does not
pause, extend, or otherwise affect requirements regarding substantial start or
substantial completion.
3.
Surrender
Any permittee may request to surrender its permit,
certification, or zone change if the permittee demonstrates to the Commission's
satisfaction that it has never used the permit, certification, or zone change
for its intended purpose nor begun any of the activities approved under the
permit and does not intend to do so in the future. The request must also
provide that the permittee waives notice and opportunity for hearing.
The Commission may require written and photographic
documentation, certified statements, and sampling analyses, in addition to any
other relevant information, as demonstration that the activities described in
the permit have not been undertaken. For any approved permit recorded in a
registry of deeds which is later surrendered, the Commission will require that
evidence of the surrender be filed by the permittee, or the Commission at the
permittee's expense, with the same registry of deeds.
When the Commission approves the surrender, the permit,
certification, or zone change is deemed null and void as of the date the
surrender is approved.
K.
APPEALS
1.
General Provisions
a. Person Aggrieved. It is the Commission's
intent to interpret and apply the term "person aggrieved," whenever it appears
in statute or rule, consistent with Maine state court decisions that address
judicial standing requirements for appeals of final agency action.
b. A person aggrieved by a staff decision may
appeal the decision to the Commission. Requests for Commission review of staff
decisions must be made within 30 days of the date of the decision. If the staff
decision regarded a certification determination made in two parts as provided
for in Section
4.05(F)(1)(d), the
appeal must be made within 30 days of the part of the determination of for
which review is sought.
c. In the
event a person aggrieved appeals a MDEP permit decision that includes a
certification determination to state court, the Commission certification
determination record must be considered part of the MDEP permit record for the
purpose of the appeal.
d. Appeals
of Commission decisions that are final agency action must be taken to Superior
Court, or in the case of applications for expedited wind energy development, to
the Supreme Judicial Court, in accordance with applicable state laws and court
rules. However, any person aggrieved by a decision of the Commission in which
no hearing was held, may petition the Commission for a
hearing.
2.
Contents
An appeal to the Commission of a Commission staff
determination, permit, or certification must set forth in detail:
a. The written appeal must include evidence
demonstrating the appellant's standing as an aggrieved person; the findings,
conclusions or conditions objected to or believed to be in error; the basis of
the objections or challenge; and the remedy sought.
b. Exhibits attached to an appeal must be
clearly labeled indicating date and source, and indicating whether the exhibit
is in the existing record or is proposed supplemental evidence. Unlabeled
exhibits may be rejected by the Chair. Electronic links to documents will not
be accepted. In the case of lengthy documents, the appellant must specify the
relevant portions.
c. If the
appellant requests that supplemental evidence be included in the record and
considered by the Commission, such a request, with the proposed supplemental
evidence, must be submitted with the appeal. A request to supplement the record
must address the criteria for inclusion of supplemental evidence set forth in
Section
4.07(K)(4).
d. If a hearing is requested, the appellant
must provide an offer of proof regarding the testimony and other evidence that
would be presented at the hearing. The offer of proof must consist of a
statement of the substance of the evidence, its relevance to the issues on
appeal, and whether any expert or technical witnesses would testify.
e. Appeals must be copied to the permittee.
The Commission staff will provide notice of the appeal to persons on the
Commission's interested persons list for the application at
issue.
3.
Response
to Appeal
A written response to the merits of an appeal may be filed by
a permittee (if the permittee is not the appellant) and any person who
submitted written comment on the application (hereafter collectively referred
to as the respondents). All proposed supplemental evidence is subject to the
labeling and form requirements of Section
4.07(K)(2)(b) and
the criteria for inclusion of supplemental evidence set forth in Section
4.07(K)(4).
a. If no supplemental evidence is offered by
any party, a respondent's complete response to the merits of the appeal must be
filed within 30 days of the date of the staff's written acknowledgement of
receipt of the appeal with a copy to the appellant.
b. If supplemental evidence is offered by any
party, the opposing party may submit written comment on the admissibility of
the proposed supplemental evidence and may offer proposed supplemental evidence
in response. The written comment is due within 15 days of the date of the
Chair's written determination as to which of the submissions constitute
proposed supplemental evidence unless the Commission establishes an alternative
schedule.
c. The Chair shall rule
on the admissibility of all proposed supplemental evidence in accordance with
Section
4.07(K)(6) within 10
days of receipt of all comments regarding admissibility of all of the proposed
supplemental evidence.
d. Within 20
days after the decision on the admissibility of all of the proposed
supplemental evidence, the respondent's complete response to the merits of the
appeal must be filed.
e. Further
evidence may not be provided directly to Commission members or distributed at
Commission meetings or hearings without specific permission of the
Chair.
4.
Record on
Appeal, Supplemental Evidence
The record for appeals decided by the Commission is the
administrative record prepared by Commission staff in its review of the
application, unless the Commission admits supplemental evidence or decides to
hold a hearing on the appeal.
a. If an
appellant or respondent seeks to supplement the record, that person shall
provide copies of all proposed supplemental evidence with the written appeal or
in response to the appeal as provided in Sections
4.07(K)(4)(b) and
(5).
b. The Commission may allow the record to be
supplemented on appeal when it finds that the evidence offered is relevant and
material and that:
(1) the person seeking to
supplement the record has shown due diligence in bringing the evidence to the
attention of the Commission at the earliest possible time; or
(2) the evidence is newly discovered and
could not, by the exercise of reasonable diligence, have been discovered in
time to be presented earlier in the regulatory process.
c. The Chair may accept into the record
additional evidence and analysis submitted by Commission staff in response to
issues raised on appeal or supplemental evidence offered by the appellant or
respondent.
5.
Procedure
The procedure for hearings on appeals is governed by Chapter
5 of the Commission's rules. Appeals decided without a hearing will be
considered based on the administrative record on appeal and oral argument at a
regular meeting of the Commission as follows, at the Chair's discretion:
a. the Commission staff briefly introduces
the appeal, indicating the subject matter, the appellant's basis for appeal,
and the relevant statutes and rules, and indicating the staffs' recommended
disposition of the appeal;
b. the
appellant makes a presentation discussing objections or challenges to the
staff's decision on the application;
c. when the appellant is a person other than
the permittee, the permittee is then provided an opportunity to address the
issues raised by the appellant;
d.
other persons may comment on the appeal;
e. the appellant and permittee may be
provided with a final opportunity for rebuttal.
The Commission, its staff and the Commission's legal
representative may at any time address questions to any person participating in
the appeal.
6.
Decision on Appeal
a. The
Commission will, as expeditiously as possible, affirm all or part, affirm with
conditions, order a hearing to be held as expeditiously as possible, reverse
all or part of the decision of the staff, or remand the matter to the staff for
further proceedings.
b. The
Commission's decision is based on the administrative record on appeal,
including any supplemental evidence admitted into the record and any evidence
admitted during the course of a hearing on the appeal. The Commission is not
bound by the staff findings of fact or conclusions of law.
