Section 672-4-07 - FINAL ACTIONB.STAFF DECISIONS1. 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 DECISIONS1. 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.CORRECTIONS1. 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.E.AMENDMENTSAn application for amendment or request for minor change must be submitted to the Commission before undertaking any modification not exempted from permitting requirements by statute or rule to a project, development, or activity that is the subject of Commission authorization. Written approval for the modification must be received before the modification is undertaken.
F.EXPIRATIONExcept 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.RENEWALSAn 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.H.RE-APPLICATION1. After receipt of a final decision as described in Sections 4.07(B) and (C) above, no person may reapply to the Commission for a permit for the same proposed use for the property in question, unless they can demonstrate that there is a significant change in circumstances or substantial new information to be presented to the Commission.I.TRANSFER1. 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; ord. 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 SURRENDER1. 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; andb. the suspension does not pause, extend, or otherwise affect requirements regarding substantial start or substantial completion.3.SurrenderAny 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.APPEALS1.General Provisionsa. 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.ContentsAn 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 AppealA 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 EvidenceThe 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.ProcedureThe 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 Appeala. 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.01-672 C.M.R. ch. 4, § 07