A.Certification of Metallic Mineral Mining. Pursuant to 12 M.R.S. §685-B(1-A) (B-2) and 38 M.R.S. §490-NN(2), the Commission certifies metallic mineral mining and advanced exploration permitted by the Department. For the purposes of this subchapter, the term mining permit shall be considered to include both permits to mine and permits for advanced exploration, unless expressly indicated otherwise. All Commission certification determinations will conform with the following:
1. The Commission will consider receipt, by the Commission, of a notice of intent to mine and develop and a map indicating the location of the proposed mining and development, required by 12 M.R.S. §685-B(1-A) (B-2), as a request for certification. The notice and map may be provided by the person proposing mining and development directly to the Commission or to the Department for the Department to provide to the Commission.12. A Commission certification determination will be issued solely to the Department for inclusion in the Department's mining permitting decision.3. A Commission determination to approve a request for certification may include reasonable terms and conditions that the Commission determines appropriate in order to fulfill the requirements and intent of the Commission's statute, rules, and plans. After the inclusion of the certification determination in the Department's mining permitting decision, the Commission retains, pursuant to 12 M.R.S. §685-B(1-A) (B-2), the authority to enforce the land use standards certified to the Department, including through the enforcement of terms and conditions that are a part of a certification determination.4. The Commission may conduct its certification review and issue its determination as a single certification determination or in two parts. If provided in two parts, the first part will include a determination of whether to certify that the proposed mining and development is an allowed use within the subdistrict or subdistricts for which it is proposed. The second part will include a determination of whether to certify that the proposed mining and development meets the land use standards established by the Commission that are not considered in the Department's review.5. The Commission will not independently evaluate title, right, or interest and shall condition any certification on the Department finding, in its permit review, that the person requesting certification has the necessary title, right or interest.6. A Commission determination to approve a request for certification, or to deny a request for certification when the request is associated with a proposal being reviewed by the Department as part of a mining permit application that is pending at the time of the determination, is not final agency action. Pursuant to 5 M.R.S. §§ 11001 et seq., a person aggrieved by a Department mining permit decision containing a certification determination may appeal the Department's final agency action to state court in accordance with applicable state laws and court rules. As part of such an appeal, a person aggrieved may seek judicial review of any of the components of the Department's final agency action, including the Commission's certification determination that is incorporated into the Department's permitting decision.7. A Commission determination to deny a request for certification, when the request is not associated with a proposal being reviewed by the Department as part of a mine permit application that is pending at the time of the determination, is final agency action subject to judicial review in state court by a person aggrieved in accordance with applicable state laws and court rules.8. If a mine permittee submits a request to amend or revise its mining permit to the Department, the permittee shall provide the Commission a copy of the permit amendment or minor revision documentation provided to the Department. Within 15 days of receiving a copy of these materials, the Commission shall determine whether a certification amendment is required or request additional information needed to make this determination. Modifications proposed by the permittee that the Commission determines would alter any finding or the basis for any finding in the existing certification will trigger the need for an amended certification. The Commission will process a request for a certification amendment in the same manner as a request for certification.B.Acceptance of Requests for Certification.1.Request for Certification Accepted as Complete for Processing. Upon receipt of a request for certification, the Commission shall determine whether to accept the request for certification as complete for processing based upon whether the request:a. contains a notice of an intent to develop and a map indicating the location of the proposed development;b. is accompanied by the proper fee; andc. contains sufficient information for the Commission to begin its review. The Commission shall make such determination prior to initiating substantive review. The Commission shall notify the person requesting certification of any deficiency in the request for certification within a reasonable time after it becomes aware of the deficiency. The Commission shall determine whether to accept a request for certification as complete for processing within 15 working days of receipt of the request.
2.Additional Information May Be Required. A determination that a request for certification is accepted as complete for processing is based upon satisfying the factors in Section 13.03,B,1 above, but does not preclude the Commission from requesting additional information during its review. Even if a request for certification is accepted as complete for processing, the Commission may deny the certification for failure to provide information necessary to enable the Commission to make necessary findings under applicable review criteria.C.Request for Certification Content. A person requesting certification shall use the appropriate forms, as coordinated with the Department, but need not complete any portions of a form determined by the Commission to be unnecessary for a specific request for certification.
D.Notice of Intent to File a Request for Certification. At least 30 days prior to filing a request for certification either directly with the Commission, or with the Department for the Department to provide to the Commission, a person requesting certification must provide public notice of the intent to file such a request. The public notice must be provided in the same manner as the Department requires for a mining permit application. The content of the notice shall be the same as required by the Department, except that the Commission must be substituted for the Department and the public notice must state the manner in which a person may request that the Commission hold a public hearing. Provided the requirements of Section 13.03,D are satisfied, with Department approval, a person's notice of intent to file a request for certification may be incorporated into its public notice associated with its Department mining permit application.
Separate from the notice provided by the person requesting certification, the Commission may, at its expense, provide additional notice in any other manner it deems appropriate.
E.Notice of Filing of a Request for Certification. Following receipt of a request for certification, the Commission shall generate a list of all requests for certification received on a periodic basis indicating the name of the person making the request and the location and nature of the proposed activity. This list must be made available to the public upon request.
F.When to Hold a Public Hearing.1. As provided by these rules, interested persons may prepare and submit evidence and argument to the Commission and request a hearing on a request for certification.2. The Commission shall consider all requests for a hearing submitted in a timely manner. Hearings on a request for certification are at the discretion of the Commission. In determining whether a hearing is advisable, the Commission shall consider the degree of public interest and the likelihood that information presented at the hearing will be of assistance to the Commission in making its certification determination.3. The Commission shall not amend or modify any certification unless it has afforded the person who requested certification, or its successor with regard to the certification, an opportunity for a hearing.G.Notice of Hearings on Requests for Certification. Notice of all public hearings in regard to requests for certification must be given by the Commission or, at the discretion of the Commission, by the person requesting certification, as follows:
1. By regular mail, or electronic mail with the agreement of the person receiving notice, at least 30 days prior to the initial scheduled hearing, to:a. The person requesting certification;b. All persons owning or leasing land within 1,000 feet of the proposed project according to the records of Maine Revenue Services or the applicable plantation or municipality;c. The municipality or plantation where the project is proposed;d. The county, if the proposed project site is in an unorganized township;e. The legislators whose districts encompass the project;f. Maine's Native American Tribes;h. Persons who have made a timely request to be notified of a specific hearing;i. Persons who have filed a written request, within the calendar year, to be notified of hearings;j. Appropriate State and federal agencies, as determined by the Commission; andk. In any proceeding involving a proposed modification or amendment of a certification that was the subject of an earlier hearing, all persons admitted to formal party status at the earlier hearing.2. By publication twice in a newspaper of general circulation in the area affected by the certification request as determined by the Commission. a. Notice must be published in the legal notices section of the newspaper.b. The date of the initial publication must be at least 30 days before the hearing. The date of the second publication shall be at least 7 days and no more than 13 days before the date of the hearing.3. In any other manner the Commission deems appropriate.H.Contents of Notice of Hearings. Notice of all public hearings must contain the following:
1. The name and address of the person requesting certification;2. The legal authority and jurisdiction under which the proceeding is being conducted;3. A reference to statutory and rule provisions involved;4. In a short and plain statement, the nature and purpose of the proceeding;5. The location and nature of the proposed development and mine;6. The location where further information, including a copy of the certification request, may be inspected;7. The manner and time period within which evidence and argument may be submitted to the Commission for consideration;8. The time and place of the public hearing;9. The manner and time within which petitions for intervention under the Commission's Chapter 5 rules may be filed; and10. Such other information as the Commission deems appropriate.I.Cancellation or Change of Hearing. If a scheduled hearing is canceled or postponed to a later date, the Commission shall provide timely notice to the persons described in Section 13.03,G,1 above. When hearings are continued, the Commission shall provide such additional notice as it deems appropriate to inform the parties and interested persons, but the Commission may continue a hearing to a later date and place as is announced at the hearing.
J.Comment Period Without Hearing. The Commission shall allow a period of not less than 20 days after accepting a request for certification as complete for processing, during which time any interested persons may submit written comments to the Commission. The Commission, at its discretion, may modify or waive this time period in cases involving emergencies or requests for certifications that are routine in nature. In exercising its discretion and evaluating whether a request for certification is routine in nature, the Commission may consider the request, in whole or in the two parts allowed for in Section 13.03,A,4, and elect to retain, waive, or modify the 20-day period for either of the two parts individually or for the request for certification as a whole. The Commission may delegate this discretionary authority to the Director.
K.Procedures and Time Limits for Issuing a Certification. 1. Except where otherwise directed by the Commission or determined by the Director, the staff shall prepare a recommendation for each request for certification brought to the Commission for a determination. Copies of the staff recommendation must be made available to the person requesting certification, intervenors and all other persons requesting to be so notified at least 7 days prior to the date of the expected determination.2. Notice of the certification determination shall be sent to the person requesting certification and to any other person having requested such information.3. Notice of a certification determination of the staff must indicate that any person aggrieved by the staff determination has the right to a review of the staff determination by the Commission. The request for such review must be made in writing within 30 days of the staff determination.4. A copy of each request for certification determination, marked approved or disapproved, shall be retained in the Commission files and shall be available to the public during normal business hours.5. The Commission will maintain at its principal office a written record, available for inspection by the public, of the vote of each Commission member on a request for certification it has considered.L.Appeals. 1. A person aggrieved may request Commission review of a staff certification determination. Such a request must be made within 30 days of the determination. If the determination is made in two parts as provided for in Section 13.03,A,4 above, the request for review must be made within 30 days of the part of the determination of which review is sought.2. A Commission determination to approve a request for certification, or to deny a request for certification when the request is associated with a proposal being reviewed by the Department as part of a mining permit application that is pending at the time of the determination, is not final agency action and is not appealable except as part of the Department permit decision. In the event a person aggrieved appeals a Department permit decision that includes a certification determination to the Board of Environmental Protection or to state court, the Commission certification determination record shall be considered part of the Department permit record for the purpose of the appeal. A Commission determination to deny a request for certification, when the request is not associated with a proposal being reviewed by the Department as part of a mining permit application that is pending at the time of the determination, is final agency action subject to judicial review in state court by a person aggrieved in accordance with governing laws and court rules.M.Effective Date of Certification Determination.1.Staff Decisions. Any person aggrieved by a certification determination of the staff has a right to a review of that determination by the Commission. A request for such a review must be made in writing in accordance with Section 13.03,L,1, above. The staff decision is effective on the date it is rendered, unless a request for Commission review is made.2.Commission Decisions. A certification determination of the Commission is effective beginning on the date the determination is rendered by the Commission.N.Criteria for Approval of Mining Permit Certifications. Pursuant to 12 M.R.S. §685-B(1-A) (B-2) and 38 M.R.S. §490-NN(2), the Commission must review whether the proposed mining and development meets any land use standard established by the Commission and applicable to the project that is not considered in the Department's review. A person requesting certification must demonstrate to the Commission that the proposed project satisfies the following land use standards.
1. Section 10.11, A through E, Nonconforming Uses and Structures;2. Section 10.24,E regarding conformance with statute, regulations, standards and plans;3. Section 10.25,A,7 as it regards apportionment of development rights through the Commission's subdistrict regulations;4. Sections 10.25,B,1, and 3 regarding dimensional standards and building layout in prospectively zoned areas;5. Sections 10.24,B and 10.25,D regarding transportation loading, parking, circulation, congestion or unsafe conditions, except that the Commission will not apply Section 10.25,D,3,b because stormwater runoff will be reviewed by the Department;6. Section 10.25,F,2 Lighting;7. Section 10.25,Q Subdivision and Lot Creation;8. Section 10.25,T Activities in Flood Prone Areas to the degree necessary to comply with the Commission's land use standards adopted in accordance with the National Flood Insurance Program;9. Sections 10.26,A through G Dimensional Requirements, with the dimensional requirement in Section 10.26,G,5, not with standing any language in the Commission's rules to the contrary, applying to setback requirements for structures from the shoreline, upland edge of a wetland designated as a P-WL1 subdistrict, road, and/or property line;10. Section 10.27,B Vegetation Clearing except in areas that are regulated as jurisdictional resources under the Natural Resources Protection Act or are within the limits of excavation permitted by the Department;11. Section 10.27,E Timber Harvesting; and12. Section 10.27,J Signs. 1 The Commission encourages persons requesting a certification to involve Commission staff in pre-application meetings either together with the Department or separately.
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