[Ord. No. 2002.112, § 3-101, 11-6-2002]
(a)
Contents of application.
(1)
Forms. Application forms shall be designed and approved by the
Board and shall require sufficient information as the Board deems
necessary or desirable in order to process the application for a permit
in accordance with the provisions of this article.
(2)
Modification of a permit. Any request by an applicant for a
modification of a permit issued pursuant to this article shall comply
with the provisions for application for a permit as contained in this
article. The applicant shall submit all information required to determine
whether the modification will comply with the requirements of this
article. The Board may request the applicant to reproduce additional
copies of materials previously filed for the convenience of the Board
or the Board's staff in reviewing the modification application.
(3)
Title, right or interest. The Board will consider an application
only when the applicant has evidenced sufficient title, right, or
interest in all of the property which is the subject of such permit.
An applicant shall demonstrate in writing, and by affidavit when so
requested by the Board, sufficient title, right, or interest, as follows:
a.
When the applicant owns the property or an easement(s) on the
property, a copy of the deed(s) or easement(s) to the property shall
be supplied;
b.
When the applicant is a lessor or lessee of the property, the
applicant shall submit a memorandum of lease describing all but the
business terms of the lease;
c.
When the applicant has an option to buy or lease the property,
the applicant shall submit a memorandum of option agreement describing
all but the business terms of the option agreement;
d.
When the applicant has eminent domain power over the property,
evidence shall be supplied as to the ability and intent to use the
eminent domain power to acquire sufficient title, right, or interest
as determined by the Board;
e.
When the applicant has either a valid preliminary permit or
a notification of acceptance for filing of an application for a license
or amendment of a license from the Federal Energy Regulatory Commission
for the site which is proposed for development or use, a copy of that
permit or notification shall be supplied; or
(4)
Service. All applications shall designate a person within the
State of Maine on whom all orders and notices may be served and to
whom all other correspondence regarding the application should be
sent.
(5)
Copies of federal and state permits. The applicant shall, as
part of the application process, submit to the Board copies of all
federal and state air pollution control permits, approvals and licenses,
including renewals, modifications, or extensions thereto, regulating
the source or process for which a permit is sought under this article,
for the five-year period prior to application. In addition, upon the
request of the ECO, the applicant shall provide, for inspection and
copying, all monitoring reports required by any state or federal air
pollution permits and licenses; operating and maintenance records;
accidental or excess emissions, and all other unlicensed emissions
and releases; and reports on which the permits or licenses were based
for the same five-year period.
(6)
Continuing data requirements. The applicant shall have a continuing
duty to provide copies of all renewed or modified federal and state
air pollution control permits, approvals and licenses as well as to
inform the Board promptly in writing of any modification, suspension
or revocation of any such federal and state air pollution permits,
approvals and licenses, and of any enforcement action initiated by
any federal or state official or agency alleging noncompliance with
any air pollution article, statute, rule, regulation, permit, approval
or license.
[Ord. No. 2002.112, § 3-102, 11-6-2002]
The Board shall, within 10 days of the date an application for a new permit or permit renewal has been deemed to be complete for processing by the Board in accordance with Section 34-205(a), cause to be given public notice of the Board's determination, inviting within 20 days written comments on the application and requests for public hearing. Requests for public hearing shall indicate the interest of the person filing such request and the reasons why a hearing is warranted.
Such notice shall include the following information:
(1)
Name and address of the applicant;
(2)
Citation of the article under which the application is being processed;
(3)
Location of the activity;
(4)
Summary of the activity; and
(5)
Telephone number and mailing address of the City official to whom
written comments and hearing requests should be directed.
[Ord. No. 2002.112, § 3-103, 11-6-2002]
(a)
Except as expressly made confidential by law and by this article,
the Board shall make all documents and records available to the public
in accordance with the Maine Freedom of Access Act, 1 M.R.S.A. § 401
et seq., for inspection and copying including but not limited to the
following:
(1)
All applications or other forms and documents submitted in support
of any permit application;
(2)
All correspondence, into or out of the Board, and any attachments
thereto;
(3)
Written comments received from any source regarding any application
for a permit or any hearings or proceedings held pursuant to Division
2 or 3 of this article;
(4)
The transcripts of hearings, if made, tape recordings of hearings,
if made, and the official, approved minutes of all Board meetings;
and
(5)
All orders, permits, approvals, or other determinations.
(b)
The City of Biddeford shall provide facilities for the inspection
of such documents, records, correspondence and other information during
reasonable hours. Persons wishing to copy papers and documents shall
arrange to do so with the Board.
(c)
Copies of documents may be made at the following costs, as may reasonably
be adjusted from time to time:
(1)
Copies shall be $0.50 per page; payment shall be made to the
City of Biddeford by cash, check or money order and shall be paid
prior to the release of copies by the Board.
(d)
Except as expressly authorized by the Board, all Board files shall
remain in the City of Biddeford Office.
[Ord. No. 2002.112, § 3-104, 11-6-2002]
The Board shall keep confidential those documents which may
remain confidential pursuant to the Maine Freedom of Access Law 1
M.R.S.A. Section 401 et seq. The Board shall also keep confidential
information demonstrated by the person submitting it to be a trade
secret or production, commercial or financial information the disclosure
of which would impair the competitive position of that person and
would make available information not otherwise publicly available.
The Board shall make determinations of confidentiality and any person
aggrieved by such determination may appeal to court in accordance
with state law. The Board shall withhold disclosure of such information
pending a final judicial determination on any claim of confidentiality.
[Ord. No. 2002.112, § 3-105, 11-6-2002]
(a)
Acceptable for processing. The ECO shall notify the applicant in
writing of the official date on which the application was accepted
as complete for processing or the reasons the application was not
accepted. If a written notice of acceptance or nonacceptance is not
mailed to the applicant within 15 business days of receipt of the
application, the application is deemed to be accepted as complete
for processing on the 15th business day after receipt by the City.
If the application is not accepted, the ECO shall return the application
to the applicant with the reasons for nonacceptance specified in writing.
For the purposes of this article, complete for processing shall mean
that the applicant provided responses to each and every item on the
application and signed the application and certifications as required.
(b)
Requests for further information. The fact that an application is
deemed acceptable for processing does not prohibit the Board from
requesting further information and data deemed necessary to evaluate
the permit application. At any time during the review of an application
for a permit, the Board or staff may request any additional information
that is reasonably necessary to make any finding or determinations
required by this article.
(c)
Public hearing. Within 60 days after an application has been determined
acceptable for processing, the Board shall notify the applicant in
writing of the date, time and location of a public hearing, if the
Board decides to hold one. The Board shall also provide public notice
of the public hearing in a manner designed to inform interested and
potentially interested persons.
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If the Board decides to hold a public hearing, the hearing shall take place within 120 days of the date the Board mails written notice to the applicant that a permit application is acceptable for processing. All hearings shall be held and additional notice given in accordance with Section 34-207.
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(d)
Board action. Within 30 days of the close of the public hearing,
or any continued hearing thereto, on a permit application, or within
120 days of acceptance of the application if no hearing is held, or
within such other time limits as the Board may establish by order,
either with the applicant's consent or for good cause after giving
the applicant notice and an opportunity to be heard, the Board shall
take any of the following actions:
(1)
Approve the application, with or without conditions necessary
for the applicant to satisfy the requirements of the article and set
forth in writing its findings that the applicant has met each of the
criteria of the appropriate division of this article and its reasons
for the imposition of conditions;
(2)
Deny the application and set forth, in writing, its findings
and reasons for its denial. The Board may deny an application for
failure of the applicant to comply with the informational requirements
of this article or if the information supplied is untrue or misleading.
Should the Board be evenly divided as to whether to approve or deny
an application, such a vote shall have the effect of denying the application
for failure to receive a majority in support.
(e)
Written decisions. Every decision of the Board on an application
shall be in writing and shall include findings of fact, conclusions
of law, a plain statement of the appropriate rights of administrative
and judicial review, and the time within which those rights must be
exercised.
(f)
Projects requiring more than one application. If an applicant submits
to the Board for more than one application at any one time, the deadlines
specified in this section for Board review and decisions on applications
may be extended by the Board for reasonable cause for a reasonable
period. The Board shall provide written notice to the applicant, intervener(s)
and the public of any such extension.
[Ord. No. 2002.112, § 3-106, 11-6-2002]
The following procedures may apply to any application pending
before the Board.
(1)
Procedure and scheduling orders. In its discretion, the Board may
issue scheduling orders governing all proceedings occurring between
acceptance of the application for processing and decision by the Board.
Such orders may but need not necessarily include provisions directing
or authorizing:
a.
Presentation of evidence or argument by the applicant or by members
of the public;
b.
Opportunities for the Board or staff to seek or provide amplification
or clarification of any matter under consideration by the Board;
c.
Particular methods or formats for the submission of information such
as pre-filed testimony or affidavit;
d.
Procedures for participation by members of the public that have a
direct and substantial interest which may be affected by the proceedings
including but not limited to adequate notice of the hearing or related
Board deliberations, opportunities for discovery, and manner of presentation
of evidence; and such other procedural issues as may in the discretion
of the Board facilitate orderly consideration of the issues presented
during consideration of the application.
[Ord. No. 2002.112, § 3-107, 11-6-2002]
The following procedures shall apply to all public hearings held by the Board except enforcement hearings or proceedings which are governed by Section 34-179.
(1)
Requirement for notice. Unless otherwise specified in this article,
prior to any hearing conducted by the Board, the Board shall provide
notice as follows:
a.
To the applicant at least 10 days prior to the hearing date by certified
mail, return receipt requested;
b.
At least 10 days prior to the hearing by regular mail to persons
who have filed a written request to be notified of hearings;
c.
At least 10 days prior to the hearing to persons who have made timely
requests to be notified of a specific hearing;
d.
By publication twice in a newspaper of general circulation in the
City of Biddeford. The date of the first publication shall be at least
14 but no more than 21 days prior to the date of the hearing and the
second publication shall be at least seven but no more than 10 days
prior to the date of the hearing; and
e.
The Board may, by scheduling order, provide for additional notice.
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For purposes of this section, all notices shall be deemed to
be delivered when deposited, postage prepaid in the United States
mail.
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(2)
Contents of notice. Notice of hearings shall contain the following
minimum information:
a.
Reference to this article authority under which the Board is acting;
b.
The purpose of the hearing;
c.
Time, date, and place of hearing;
d.
The manner in which views may be submitted for consideration;
e.
The place and time where relevant material may be examined prior
to the hearing; and
f.
The name, address and telephone number of the City official to contact
for information.
(3)
Amendment of applications after public notice of hearings has been
given. After the first public notice of hearing, no amendment of any
application shall be permitted except by order of the Board on motion
of the applicant for good cause shown.
a.
In its discretion, the Board may reschedule the public hearing, conduct
the public hearing as originally scheduled, or conduct the hearing
as originally scheduled and direct or authorize other appropriate
steps to assure that the public's opportunity to comment on the application
as amended is preserved.
b.
Following the determination of the Board pursuant to Subsection 1,
the applicant shall place a public notice in the same newspaper in
which the original public notice appeared stating:
(4)
Presiding officer.
a.
The presiding officer at all hearings shall be either (a) the Chair
of the Board, if present and willing to preside, or (b) the Vice Chair,
if present and willing to preside, or (c) a member of the Board selected
by a majority of those members present at the hearing.
b.
The presiding officer shall have the authority to:
1.
Regulate the course of the hearing;
2.
Rule upon issues of procedure;
3.
Rule upon issues of evidence;
4.
Hold conferences before or during the hearing for settlement
or simplification of issues or procedure;
5.
In special cases, where good cause appears, permit deviation
from the procedural rules insofar as compliance therewith is found
to be impractical or unnecessary; and
6.
Take such other action as may be necessary for the efficient
and orderly conduct of the hearing, consistent with this article and
applicable statutes.
c.
The presiding officer may be overruled by a majority vote of the
Board members present on any decision or ruling relating to a hearing.
(5)
General conduct.
a.
Opening statement. The presiding officer shall open the hearing by
describing in general terms the purpose of the hearing and the general
procedure governing its conduct.
b.
Transcription of proceedings. All proceedings at hearings before
the Board may be recorded and, as necessary, transcribed. The tape
recordings and transcript of testimony, if made, shall constitute
part of the hearing record.
c.
Witnesses. Witnesses shall be required to state for the record their
names, residence, business or professional affiliation, and whether
or not they represent another individual, firm, association, organization,
government agency or other legal entity, for purposes of the hearing.
d.
Statements in written form. At any time prior to or during the course
of a hearing, the presiding officer may require that all or part of
the statements to be offered at such hearing be submitted in written
form at such time and in such form as may be specified.
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All persons offering statements in written form shall be subject
to questioning. This subsection shall not be construed to prevent
oral testimony at a scheduled hearing by any member of the public
who requests and is granted time to testify at a hearing.
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e.
Submission of proposed findings and conditions. All persons participating
in any hearings shall have the right to submit to the Board in writing
proposed findings of fact and conclusions of law, briefs, and recommended
conditions, providing that such documents shall be submitted in writing
not later than seven days after the close of the hearing or within
such other time as ordered by the presiding officer or the Board.
f.
Continuance. All hearings conducted pursuant to this section may
be continued for reasonable cause and reconvened from time to time
and from place to place by the Board or presiding officer, as circumstances
require. All orders for continuance shall specify the time and place
at which such hearings shall be reconvened. The Board or presiding
officer shall provide reasonable notice to any person at the hearing
who so requests in writing and to the public of the time and place
of such a reconvened hearing.
(6)
Public participation.
a.
Members of the public. Any person may participate in a public hearing
by making oral or written statements of such person's position on
the issues, by introducing evidence and by submitting written or oral
questions through the presiding officer, with such limits and on such
terms and conditions as may be fixed by the Board or presiding officer.
b.
State, federal and municipal agencies. The presiding officer shall
afford a representative of any interested federal, state, municipal
or other governmental agency a reasonable opportunity to participate
in such hearing and introduce evidence and question witnesses. Such
representatives shall be permitted such rights as are granted by this
section only if representing the views and position of the agency
on whose behalf that representative appears and not personal views
and opinions.
(7)
Oral statements. The following procedures shall apply in those hearings
in which oral statements are to be received by the Board:
a.
The order of witnesses shall be determined by the presiding officer
with due regard to the time available, the number of witnesses to
be heard, considerations of fairness and efficiency including redundancy,
and matters of time and distance with respect to witnesses having
travel constraints. Absent such considerations, the applicant should
generally be permitted to present its witnesses before any other witnesses
testify and in such order as the applicant considers most effective.
b.
Board members, staff, counsel and consultants may be permitted by
the presiding officer to ask questions of any witness at any time.
c.
The applicant's representatives shall be given a reasonable opportunity,
subject to the presiding officer's discretionary authority to schedule
the Board's business, to question witnesses directly.
d.
The Board may designate times during the hearing when representatives
of federal, state or other governmental agencies, persons deemed to
have a direct and substantial interest or members of the public may
make statements, and may set time limits on such questions or statements.
[Ord. No. 2002.112, § 3-108, 11-6-2002]
(a)
Admissibility. Evidence which is relevant and material to the subject
matter of the hearing shall be admissible. Evidence which is irrelevant,
immaterial or unduly repetitious shall be excluded. The Board's experience,
technical competence and specialized knowledge may be utilized in
the evaluation of all evidence submitted to the Board. The Maine Rules
of Evidence shall not apply to hearings held under this section.
(b)
Official notice. The Board may take official notice of any facts
of which judicial notice could be taken, and in addition may take
official notice of general, technical or scientific matters within
its specialized knowledge and of statutes, regulations and nonconfidential
Board records. Facts officially noticed shall be included and indicated
as such in the record.
(c)
Official record. An official record or lack thereof may be evidenced
in the manner provided in Rule 44 of the Maine Rules of Civil Procedure.
(d)
Objections. All objections to rulings of the presiding officer regarding
evidence or procedure and the grounds therefore shall be timely stated
during the course of the hearing. If during the course of, or after
the close of, the hearing and during its deliberations the Board determines
that the ruling of the presiding officer was in error, it may reopen
the hearing or take such action as it deems appropriate to correct
such error.
(e)
Offer of proof. Consists of a statement of the substance of the proffered
evidence or that which is expected to be shown by the answer of the
witness.
[Ord. No. 2002.112, § 3-109, 11-6-2002]
(a)
Exhibits and evidence. All documents, materials and objects offered
in evidence as exhibits, shall, if accepted, be numbered or otherwise
identified. Documentary evidence may be received in the form of copies
or excerpts if the original is not readily available. The presiding
officer may require, after prior oral or written reasonable notice,
that any person offering any documentary or photographic evidence
shall provide the Board with a specified number of copies of such
documents or photographs, unless such documents or photographs are
determined to be of such form, size or character as not to be reasonably
suitable for reproduction.
(b)
Availability. All written testimony and documents, materials and
objects admitted into evidence shall be made available during the
course of the hearing for public examination. All such evidence will
be available for public examination at the City office during normal
business hours.
(c)
Record of application. In any proceeding involving an application,
the application filed with the Board, including exhibits and amendments
thereto, shall be placed into evidence.
[Ord. No. 2002.112, § 3-110, 11-6-2002]
The record upon which any Board decision is to be made shall
consist of the application, proposed findings of fact and conclusions,
all documentary and real evidence properly submitted and received
by the Board, all statements whether prefiled or delivered in person
which has been admitted by the Board and, if prepared, the recording
or transcript of the proceedings. The record shall remain open for
other evidence or testimony for 10 days following the close of any
public hearing unless otherwise provided by the Board, and if no public
hearing is held, then according to Board scheduling order. All parties
to the proceedings and members of the public may submit additional
evidence or testimony during the ten-day period that the record remains
open. Once the record has been formally closed, no further evidence
of any kind may be placed in the record except by order of the Board
and after appropriate notice is given.
An applicant for a new, renewed, modified or transferred permit
shall have the burden of proof on all matters unless otherwise expressly
provided by law or by this article. It shall be the applicant's burden
to present sufficient admissible evidence to enable the Board to make
each and every affirmative finding necessary under this article to
enable the Board to take the action being sought by the applicant.
[Ord. No. 2002.112, § 3-111, 11-6-2002]
(a)
By procedural order, the Board shall establish a date by which the
applicant and any other person may submit in writing proposed findings
of fact, conclusions of law, and recommended conditions supported
by written explanation and argument but not by new evidence. If any
person other than the applicant makes any submission, that person
shall mail or deliver a copy to the applicant.
(b)
By procedural order, the Board shall establish a date by which the
Board's staff, consultants and counsel shall file with the Board and
serve upon the applicant a draft permit or proposed findings of fact
and conclusions of law and recommended conditions.
(c)
By procedural order, the Board shall establish a reasonable opportunity
for the applicant to submit comment or argument concerning any draft
permit or proposed findings and conditions submitted by any person
or the Board staff.
(d)
The Board's deliberations with respect to any and all such draft
permits or proposed findings and conditions shall be conducted in
a meeting open to the public provided, however, that neither the applicant
nor members of the public shall have any right to participate in the
deliberation except as may be specifically permitted by the presiding
officer.
[Ord. No. 2002.112, § 3-112, 11-6-2002; Ord. No. 2006.37, 6-6-2006]
The Board may impose any appropriate and reasonable conditions
in any permit issued under this article in order to ensure compliance
with the provisions of this article. In addition, and except as otherwise
provided, every permit shall be subject to the following standard
conditions:
(1)
Inspection. The ECO and any employees and agents of the City of Biddeford
may enter any property at reasonable hours and enter any building
with the consent of the property owner, occupant or agent, or pursuant
to an administrative search warrant, in order to inspect the property
or structure, including the premises of a facility which is regulated
under this article or believed to be emitting regulated pollutants,
and to take samples, inspect records relevant to any regulated activity
or conduct tests as appropriate to determine compliance with any laws
administered by the department or the terms and conditions of any
order, regulation, license, permit, approval or decision of the Board.
(2)
Modification. A new or modified permit shall be required prior to
the change or modification of any activity regulated by permit under
this article, except as provided for a minor modification.
(3)
Recordkeeping.
a.
The permit holder shall maintain sufficient records to document compliance
with any condition of the permit under this article.
b.
The permit holder shall comply with the record retention requirements
of Division 5 of this article.
c.
Recordkeeping information shall be accessible at the permit holder's
facility or otherwise readily available upon request of the Board.
(4)
Time limit for construction. Unless a division of this article provides
otherwise, approval to conduct any activity subject to permit shall
become invalid if such activity is not commenced within 18 months
after receipt of such approval or if such activity is discontinued
for a period of 18 months or more. The Board may extend such time
period upon a satisfactory showing that an extension is justified.
(5)
Monitoring. The holders of all permits shall be subject to the following
monitoring conditions:
a.
Any regulated facility shall be required, as provided by its permit
or otherwise ordered by the Board, to allow the City to obtain real
time reports of monitoring equipment that is installed at the facility
in order to monitor those activities which are the subject of the
permit.
b.
The permit holder shall monitor the activity regulated by permit
under this article according to test procedures approved under this
article and applicable federal and state law or regulations, unless
other test procedures have been specified in the permit. Samples and
measurements taken for the purpose of monitoring shall be representative
of the volume and nature of the regulated activity over the sampling
and reporting period.
c.
Monitoring records shall include information on:
1.
The date, exact place, and time of sampling or measurements;
2.
The individual(s) who performed the sampling or measurements;
3.
The date(s) analyses were performed;
4.
The individual(s) who performed the analyses;
5.
The analytical techniques or methods used; and
6.
The results of such analyses.
(6)
Assignment or transfer of permits. Every permit issued by the Board
is nontransferable unless prior written consent is obtained from the
Board. Written consent must be obtained no later than two weeks prior
to any transfer or assignment of property which is subject to a permit.
Any proposed transferee or assignee shall demonstrate to the satisfaction
of the Board its technical and financial capacity and intent to: (1)
comply with all conditions of the applicable permit; and (2) to satisfy
all applicable criteria of this article. The permit holder and proposed
transferee or assignee shall be jointly and severally liable for failing
to comply with the permit transfer requirement.
(7)
Signatory requirement. All applications, petitions, reports and other
papers submitted to the Board shall be signed by the party, or its
duly authorized officer or agent, and shall include the following
certification:
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"I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this document and
all attachments thereto and that, based on my inquiry of those individuals
immediately responsible for obtaining the information, I believe the
information is true, accurate and complete. I am aware there are significant
penalties for submitting false information, including the possibility
of fine and imprisonment."
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[Ord. No. 2002.112, § 3-113, 11-6-2002]
Any person aggrieved by a final decision of the Board on a permit application or a petition to amend or modify a Biddeford permit may seek reconsideration by the Board or judicial review thereof in accordance with this division. A motion for reconsideration is not a prerequisite for judicial review. Any person aggrieved by a final decision of the Biddeford Environmental Code Officer may appeal such decision to the Board under this section and the Board shall render a final decision on such appeal consistent with Section 34-205. An appeal of any decision of the ECO shall act as a stay of the decision until the Board has acted on such appeal.
(1)
Petition for reconsideration. Within 30 days of receipt of notice
of the decision of the Board on a permit application or a petition
to amend or modify a Biddeford permit, an applicant, permit holder,
or any person aggrieved by the decision may petition the Board in
writing for reconsideration of the decision. A Board member who voted
on the prevailing side of the decision may move to reconsider at any
time within such thirty-day period.
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The petition shall identify the findings, conclusions or conditions
objected to or believed to be in error, the basis of the objections
or challenge, the nature of the relief requested and the nature of
any new or additional evidence to be offered. Any person aggrieved
by a final decision of the Board may only petition the Board for reconsideration
of the decision once.
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The Board shall, within 30 days of receipt of such a petition, commence its review of such petition and determine whether or not to hold a public hearing. Any public hearing shall be held within 60 days of receipt of the petition in accordance with the procedures specified in Section 34-207. Within 90 days of receipt of the petition, the Board shall approve, approve with conditions or deny the petition in full or in part. Should the Board be evenly divided as to whether to approve or deny the petition, such a vote shall have the effect of denying the application. The Board shall promptly provide written notice of its decision on reconsideration to the person who petitioned for reconsideration, to the applicant and all other parties, and shall promptly publish its decision in a newspaper of general circulation in the City of Biddeford. The Board's decision on a petition for reconsideration shall constitute its final decision.
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In accordance with Subsection (2), the petitioner shall have 30 days from receipt of notice of the Board's decision on reconsideration to appeal to court the Board's final decision on the petition for reconsideration.
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(2)
Judicial appeal. Any person aggrieved by a final decision of the
Board may seek judicial review in accordance with applicable state
law within 30 days from the date of the Board's decision or within
30 days from the date of the Board's decision on reconsideration.
The filing of an appeal of a Board decision to grant a permit with
or without conditions shall not operate as a stay of the Board's decision.
Application for a stay shall ordinarily be made first to the Board,
which may issue a stay upon a showing of irreparable injury to the
petitioner, a strong likelihood of success on the merits, and no substantial
harm to adverse parties or the general public. A motion for relief
may also be made to the superior court pursuant to the provisions
of 5 M.R.S.A. § 11004, as amended.
[Ord. No. 2002.112, § 3-114, 11-6-2002]
(a)
Environmental Reserve Fund. The Environmental Reserve Fund is hereby
established. The purpose of the Environmental Reserve Fund is to promote
all the purpose, policies and objectives of this article as expressed
therein. All fees required to be paid to the City of Biddeford for
permits issued pursuant to this article, and all other sums of money
paid to or given to the City of Biddeford pursuant to this article
including, without limitation, all fines and penalties shall be credited
to the Environmental Reserve Fund and only the expenditures authorized
by this article shall be charged to the Environmental Reserve Fund.
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Money in the Environmental Reserve Fund shall be deposited,
invested and administered by the City Council and the Treasurer of
the City of Biddeford and may be invested as provided by Maine law.
Interest on the investments shall be credited to the Environmental
Reserve Fund.
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The City Council may receive, apply for, or accept, on behalf
of the City, funds, grants, bequeaths, gifts or contributions from
any person. All such funds shall be deposited in the Environmental
Reserve Fund.
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(b)
Annual fees. Permit holders of a Biddeford air toxics emissions permit
shall pay to the City of Biddeford an annual base fee and emission
fees, as follows:
(1)
Annual base fee. Any facility whose stationary sources or processes
are required to obtain a permit pursuant to Division 4 of this article
shall pay to the City of Biddeford on an annual basis a base fee of
$1,000. The annual fee shall be assessed beginning for the calendar
year in which this article becomes effective and is payable to the
City no later than December 15 of the first calendar year and no later
than June 1 of each calendar year thereafter. A regulated facility
shall obtain a credit of up to the full amount of the annual base
fee for direct expenditures on compliance with any applicable ambient
air limit for a regulated air toxic under this article upon submission
to the Biddeford Environmental Board of information sufficient to
establish such expenditures made by the facility.
(2)
Emission fees. Any facility whose stationary sources or processes
are required to obtain a permit pursuant to Division 4 of this article
shall pay to the City of Biddeford on an annual basis emission fees
as follows:
a.
Any substance or compound classified on Table I[1] as Class I: $1.75 per pound per year.
[1]
Editor's Note: Table I is included at the end of this chapter.
b.
Any substance or compound classified in Table I as Class II:
$1 per pound per year.
c.
Any substance or compound classified in Table I as Class III:
$0.50 per pound per year.
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Emission fees are to be assessed for regulated emissions reported
beginning for the calendar year in which this article becomes effective
and for each calendar year thereafter. The emissions fees are to be
based upon a regulated facility's annual emissions report, except
for the emissions fees due for calendar year 2002 which are to be
based upon a separate emissions report required by the City, and are
due and payable no later than March 1, 2003 for calendar year 2002
and, for each year thereafter, June 1 of the calendar year following
the year for which emissions are reported. Emission fees are to be
assessed only upon regulated air toxic emissions exceeding, on an
uncontrolled basis, the de minimus levels established in Table I of
the article.
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Any facility whose stationary sources or processes are required
to obtain a permit pursuant to Division 4 of this article, and which
facility emits any dioxin compound in excess of 0.1 ng TEQ/m3 shall
pay to the City of Biddeford on an annual basis no later than January
30 of each year beginning for the calendar year following the effective
date of this article an emission fee of $25,000. The dioxin fee shall
be assessed for regulated emissions beginning in calendar year 2002.
The dioxin emissions fee is to be based upon a regulated facility's
annual emissions report and are due and payable no later than June
1 of the calendar year following the year for which emissions are
reported.
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These annual fees have been based upon the City's best estimate
of the actual costs necessary for the City to administer and enforce
this article. If the date on which an annual fee or emission fee is
due falls on a Saturday, Sunday or national holiday, the payment is
due on the next business day. By May 1 of each year, the City shall
bill each permit holder the amount due for its annual fee. Failure
to pay the annual fee shall be deemed a violation of this article
and a violation of the permit. The City Council may adjust the annual
fees on the annual basis according to the United States consumer Price
Index established by the Federal Department of Labor Bureau of Labor
Statistics.
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Failure to pay any annual fee as provided in this article is
sufficient grounds for revocation of a permit. There are no additional
fees assessed for renewals or amendments.
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(c)
Expenditures. The City Council may authorize expenditures from the
Environmental Reserve Fund. Such expenditures shall be all expenditures
for the implementation, administration and enforcement of this article.
Such allowable expenditures may include, but not be limited to, personnel
or payroll expenses and benefits, including but not limited to, ECO
clerks and other staff, expenses relating to the Biddeford Environmental
Board including payroll expenses relating to any pre-permit activities
such as application reviews, public hearings, and appeals, the actual
permit processing activities and associated post-permit compliance
activities required to assure continued permit compliance, expenses
relating to telephone, training, travel, supplies, monitoring, sampling
and computer supplies and services, expenses related to enforcement
activities as a result of permit noncompliance, expenses related to
retention of lawyers or legal services, the retention or contracts
with consultants including engineers, scientists, and inspectors,
reasonable capital expenditures for specific equipment to carry out
the objectives of this article, or any other expenditure for costs
which are related to carrying out the objectives of this article.
(d)
Application fee and filing fee. The following fees shall be assessed
against all applicants, with the exception of the City of Biddeford.
(1)
Filing fee: a filing fee of $1,000. The filing fee shall be
paid at the time a permit application is filed. Failure to pay the
fee at the time of filing will result in the application being returned
to the applicant.
(2)
Application fees. The applicant will be assessed reasonable
and appropriate fees for the direct costs incurred in connection with
the review of a permit application and any amendment or modification
thereto including, but not limited to, legal, engineering and other
professional fees and other costs specifically accountable to a permit,
together with all costs relating to the preparation of information
and materials for the Board associated with the permit application.
(e)
Fee processing. The Board shall bill the applicant monthly for any
application fee. The applicant shall pay the bills to the designated
recipient within 30 days. If any applicant withdraws its application,
the applicant remains liable for all direct costs incurred to the
date of withdrawal. Upon failure to pay the application fee when due,
the Board and the Environmental Code Officer may cease its activity
regarding the application, may take enforcement action pursuant to
Division 2 to recover the application fee and any other appropriate
enforcement action. Final payment of the application fee shall occur
before issuance of the permit.
(f)
Fee administration. The Environmental Code Officer shall be responsible
for fee administration and shall review bills submitted by vendors
prior to directing bills to an applicant. Any applicant may request
the Environmental Code Officer establish an estimated nonbinding budget
for any permit application. If the Environmental Code Officer establishes
such a budget, and if it appears that the budget will be exceeded,
the Environmental Code Officer shall notify the applicant with that
information and shall provide any opportunity to discuss a revised
budget.
[Ord. No. 2002.112, § 3-115, 11-6-2002]
All applications, motions, proposed findings, documents, petitions,
briefs, complaints, responses to complaints and, to the extent practicable,
written testimony filed with the Board, (all hereinafter referred
to as "form"), except for documents not susceptible of reproduction
in the manner provided or for other good cause shown, shall be typewritten
or printed on white paper 8 1/2 inches by 11 inches in size and
bound; type matter shall be double spaced. The first page of each
such form shall be headed by the title "State of Maine; City of Biddeford
Environmental Board" and shall have a caption with (1) the title of
the matter, giving the name of the applicant, the activity in issue
and the location (e.g., In the Matter of ABC, Inc., Biddeford, Maine);
(2) the Board's application number (e.g., Biddeford Air Toxics Emissions
Permit Application No. 86); and (3) the title of the form (e.g., petition
to intervene).
The final page of the form shall be dated and signed by the
applicant, permit holder, respondent or his attorney or representative.
Such signature shall constitute a certification by such person that
he or she has personally examined and is familiar with the form, that
based on his inquiry of those persons immediately responsible for
obtaining information on the form, and to the best of his knowledge
and information he believes the information is true, accurate and
complete, and that it is not interposed for delay. If a form is not
signed or is signed with intent to defeat this section, it may be
stricken as false and the action may proceed as though the form had
not been served and filed.
[Ord. No. 2002.112, § 3-116, 11-6-2002]
(a)
Service. A copy of every application, motion, petition, brief, or
paper relating to discovery and other document permitted or required
to be filed with the Board pursuant to this article shall be mailed
to all parties in the proceeding or their representatives by ordinary
mail unless otherwise provided in this article.
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Any notice required to be given or document filed or served
under this article shall be deemed delivered when deposited in the
United States mail, postage prepaid except as otherwise specified.
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(b)
Filing. An original and 12 copies of all applications, and an original
and two copies of all motions, petitions, briefs, complaints, responses
to complaints, reports and other required submissions shall be filed
with the Board by delivery to the City of Biddeford, P.O. Box 586
or 205 Main Street Suite 101, Biddeford, Maine 04005 by 4:00 p.m.
local time on or before the day the submission is due unless otherwise
specified in a Board order.
(c)
Representatives. The first document filed by any person in a proceeding
shall designate the name and address of a person on whom service may
be made and to whom all correspondence from the Board and staff may
be sent.
(d)
Service of papers by the Board. For purposes of this article, the Board shall assure that all orders, decisions, notices and other papers issued by the Board are mailed within two days of issuance upon all parties, and further assure that a Board decision on an application pursuant to Section 34-205(d) and on a petition for reconsideration pursuant to Section 34-213(1) shall be served upon the applicant and interveners by certified mail, return receipt requested, by hand delivery or by private express courier.
(e)
Facsimile and electronic mail. The Board shall accept facsimile or
electronic mail as a substitute for initial filing of an original
document, provided that the original document is filed with the Board
no later than three business days following the initial filing.
[Ord. No. 2002.112, § 3-117, 11-6-2002]
In computing any period of time provided by this article, the
day of the act, event or default after which the designated period
of time begins to run is not to be included. The last day of the period
so computed is to be included, unless it is a Saturday, Sunday or
legal holiday, in which event the period runs until the end of the
next day which is not a Saturday, Sunday or legal holiday.
When, by this article or by order of the Board, an act is required
to be done at or within a specified time, the Board may within its
discretion at any time order the period enlarged for a reasonable
period for good cause shown.
[Ord. No. 2002.112, § 3-118, 11-6-2002]
Orders, decisions, notices and other papers issued by the Board
shall be effective upon the presiding officer, or other duly authorized
Board member, signing the written order, decision, notice or paper
issued by the Board.
[Ord. No. 2002.112, § 3-119, 11-6-2002]
Any person aggrieved, including the code enforcement officer,
may petition the Board to revoke, modify or suspend a permit. The
petition must be addressed to the Board and must state which of the
criteria listed below is being invoked. It must specifically describe
the factual basis for the petition and generally describe and summarize
what evidence will be offered to support the petition. The petition,
once filed, may be supplemented only as permitted by the Board. The
petitioner must serve a copy of the petition on the permit holder
at the time the petition is filed with the Board.
No later than 30 days following the filing of a petition to
revoke, modify or suspend, and after providing the petitioner and
the permit holder opportunity to comment, the Board shall issue an
order specifying the schedule and procedure for Board consideration
of the petition. The Board shall utilize the administrative procedures
set forth in this division as appropriate. If the Board determines
that a petition on its face does not warrant further consideration,
the Board may dismiss it. After a hearing, the Board may deny the
petition or modify in whole or in part any permit, issue an order
prescribing necessary corrective action, or revoke or suspend a permit
when the Board finds that:
(1)
The permit holder has violated any condition of the permit, Board
order or this article;
(2)
The permit holder has obtained a permit by misrepresenting or failing
to disclose fully all relevant facts;
(3)
The permit holder has experienced permit deviations which threaten
an actual or potential substantial and immediate threat to public
health or the environment;
(4)
The permit fails to include any standard or limitation legally required
on the date of issuance;
(5)
Modification or amendment of a permit is necessary to ensure compliance
with applicable standards, limits or requirements; or
(6)
There has been a material change in any condition or circumstance
that requires modification of the terms of the permit.
[Ord. No. 2002.112, § 3-120, 11-6-2002]
(a)
Any interested person may petition the Biddeford Environmental Board to add, delete, or modify a regulated air toxic pollutant or to modify a parameter for any substance or compound named on the list described in Table I. Within 30 days of reviewing the petition, the Board shall determine whether to grant or deny the petition. If the Board denies the petition, the Board shall notify the petitioner of its decision in writing and shall state its reasons for denial. If the Board grants the petition, it shall notify petitioner, publish notice of its decision as provided in Section 34-202, and shall direct ECO to incorporate the change into Table I.
[Ord. No. 2002.112, § 3-121, 11-6-2002]
(a)
The Board shall grant an application for a permit if the following
criteria have been met:
(1)
The Board has received a complete application pursuant to this
division.
(2)
The regulated source or process has completed any applicable
air toxics compliance determination required under the article.
(3)
The emission of all regulated toxic air pollutants will not
violate the City of Biddeford ambient air limits for air toxics or
can be controlled or reduced so as not to violate the same.
(b)
The Board shall grant an application for a temporary permit if the
following criteria have been met:
