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JAY ENVIRONMENTAL CONTROL Note: The Environmental Control and Improvement Ordinance was amended by the Town on December 19, 2005 . The amendment is not currently available on this site, but will be updated shortly. Please call the Town Office for a copy of the amendment. ENACTED: MAY 21, 1988 AMENDED: MARCH 20, 1989 JUNE 19, 1989 OCTOBER 23, 1989 JUNE 18, 1990 MARCH 18, 1991 MARCH 16, 1992 MARCH 15, 1993 NOVEMBER 22, 1993 MARCH 21, 1994 JUNE 20, 1994 JUNE 19, 1995 DECEMBER 18, 1995 JUNE 17, 1996 NOVEMBER 25, 1996 SEPTEMBER 25, 2000 SEPTEMBER 29, 2003
This edition contains ordinance amendments through the Twenty-First Ordinance Amending the Jay Environmental Control and Improvement Ordinance, enacted September .
Table of Contents
Jay Environmental Control and Improvement Ordinance
CHAPTER
Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
Referenced Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
1. General Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.1
2. Planning Board-Code Enforcement Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.1
3. Administrative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.1
4. Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1
5. Subdivisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
6. Mobile Home Parks-Dwelling Units [Reserved]
7. Site Review [Reserved]
8. Underground Oil Storage [Reserved]
9. Solid Waste-Disposal Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1
10. Solid Waste-Flow Control and Recycling [Reserved]
11. Hazardous Waste-Storage and Disposal [Reserved]
12. Water. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.1
13. Air Pollution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1
14. Noise Pollution [Reserved]
Preface
Preface
GENERAL
The Jay Environmental Control and Improvement Ordinance is a comprehensive regulatory plan to protect and enhance the public health and environment of the Town of Jay and to prevent threats to health and the environment posed by the discharge of pollutants to air, water and land. The Ordinance was the result of a lengthy and thorough consideration to harmonize with federal, state and local environmental laws and regulations. The purposes and policies of the Ordinance are set forth in Section 1-102.
The Ordinance prohibits certain activities that may adversely affect public health and the environment and regulates subdivisions, landfills, point source discharges into water and emissions of air contaminants through permits issued and enforced by the Planning Board.
ORGANIZATION AND HISTORY
The Ordinance is divided into chapters for general application and chapters for specific environmental concerns. Chapter 1 encompasses the purposes and policies of the Ordinance, statement of authority, and definitions. Chapter 2 establishes the organization and powers of the Planning Board and the Code Enforcement Officer. Chapter 3 sets forth general content requirements for applications, procedures for hearings on applications, fees and appeals procedures. Additional application information requirements for subdivisions, landfills, water discharges and air emissions are prescribed in the chapters pertaining to those topics. Chapters 4A and 4B establish procedures for permit administration and investigations and administrative enforcement actions by the Code Enforcement Officer, Environmental Enforcement Counsel and the Planning Board, for judicial enforcement, and penalties. Chapter 5 regulates subdivisions. Chapter 9 regulates landfills. Chapter 12 regulates water pollution from point sources and Chapter 13 regulates air pollution. The Ordinance also includes three volumes of referenced codes. Each volume includes one or more loose-leaf binders.
The Ordinance was first enacted by vote at a Town Meeting on May 21,1988. Since its enactment, the Ordinance has been amended twenty times, primarily to reflect changes in state and federal law. The First, Second, Third and Fourth Ordinances Amending the Ordinance were enacted on March 20, 1989. The Fifth Ordinance was enacted on June 19, 1989, the Sixth and Seventh Ordinances on October 23, 1989, the Eighth Ordinance on June 18, 1990, the Ninth Ordinance on March 18, 1991, the Tenth Ordinance on March 16, 1992, the Eleventh Ordinance on March 15, 1993, the Twelfth Ordinance on November 22, 1993, the Thirteenth Ordinance on March 21, 1994, the Fourteenth Ordinance on June 20, 1994, the Fifteenth Ordinance on June 19, 1995, the Sixteenth Ordinance on December 18, 1995, the Seventeenth Ordinance on June 17, 1996, the Eighteenth Ordinance on November 25, 1996, the Twentieth Ordinance on September 25, 2000, and the Twenty-First Ordinance on September 29, 2003. The Nineteenth Ordinance proposed on June 21, 1999 was not enacted.
This edition of the Ordinance reflects the changes that have occurred through the Twenty-First Ordinance. Each section amended since original enactment on May 21, 1988, is annotated to include the number and section of the amending ordinance. For example, the notation “First, Sec. 2” following Section 1-102 means that Section 1-102 was amended by Sec. 2 of the First Ordinance Amending the Jay Environmental Control and Improvement Ordinance.
Preface
The Town of Jay may revise the Ordinance at annual or special town meetings to accommodate changes in state and federal law. Persons referring to this Ordinance should obtain from the Town Office any amending ordinances subsequent to the Twenty-First Ordinance in order to review a current and complete version of the Ordinance.
Sixteenth, Sec. 3. Seventeenth, Sec. 3 and 4. Eighteenth, Sec. 3. Twentieth, Sec. 3. Twenty-First, Sec. 3.
REFERENCED CODES
Various sections of the Ordinance refer to statutes, regulation and guidelines administered by the United States Environmental Protection Agency and agencies of the State of Maine. The Jay Ordinance adopts certain of these provisions as its own. For example, Chapter 9 of the Ordinance, Solid Waste Disposal Facilities, adopts Chapters 400-409 of the Maine Solid Waste Management Rules. Chapter 12, Water, adopts the effluent guidelines and standards of 40 Code of Federal Regulation (“CFR”) Parts 129, 401-471.
The codes incorporated by reference may be found in three volumes filed with the Ordinance in the Town of Jay office. Each volume includes one or more looseleaf binders. A Table of Contents is located at the beginning of each binder. Volume I includes the codes referenced in Chapters 1-9 of the Ordinance, covering Subdivisions and Solid Waste Disposal Facilities. Volume II includes codes referenced in Chapter 12, Water. Volume III includes codes referenced in Chapter 13, Air Pollution.
Federal regulation are amended by publication of the amended portions in the Federal Register. Each CFR section and the corresponding Federal Register amendments are filed under the same tab and should be read together in the referenced codes volumes.
The Town of Jay has revised the contents of the volumes on seven occasions to delete superseded regulations and to include changes in regulations. The Town will continue to revise the referenced codes volumes regulations to reflect changes in state and federal law.
Referenced Codes
Referenced Codes
VOLUME 1, Codes Referenced in Chapters 1-9
1. An Act Regarding Minimum Lot Sizes and Other Municipal Regulations Concerning Mobile Home Parks, 30-A M.R.S.A. Section 4358(3),
2. Maine Department of Environmental Protection, Maine Solid Waste Management Rules, Chapters 400, 401, and 405.
3. 40 CFR Part 264.147(f), Financial Test for Liability Coverage
4. Maine Primary Drinking Water Standards, adopted pursuant to 22 M.R.S.A. Section 2611
5. Maine Maximum Exposure Guidelines
Referenced Codes
VOLUME II, Codes Referenced in Chapter 12
1. 40 CFR Part 136 2. Effluent Guidelines and Standards a. 40 CFR Part 129 b. 40 CFR Part 401 c. 40 CFR Parts 405-436 d. 40 CFR Part 439 e. 40 CFR Part 440 f. 40 CFR Part 443 g. 40 CFR Part 446 h. 40 CFR Part 447 i. 40 CFR Part 454 j. 40 CFR Part 455 k. 40 CFR Parts 457-461 l. 40 CFR Parts 463-469 m. 40 CFR Part 471 3. 40 CFR Part 403, General Pretreatment Regulations
4. 38 M.R.S.A. Chapter 3, Article 4-A, Sections 464, 465, 465-A, 465-C, 466, 467
5. Maine Department of Environmental Protection, Chapter 580, Regulations Relating to Sampling Procedures and Analytical Procedures
6. National Recommended Water Quality Citeria: 2002 (Nov. 2002) (U.S. EPA) (water criteria as developed by EPA pursuant to section 304(a) of the Clean Water Act).
Referenced Codes
VOLUME III, Codes Referenced in Chapter 13
1. 40 CFR Part 50, National Primary and Secondary Ambient Air Quality Standards and Appendices
2. 40 CFR Part 60, Standards of Performance for New Stationary Sources; subparts A, D, Da, Db, Dc, E, K, Ka, O, BB, GG, and Appendices.
3. 40 CFR Part 61, National Emission Standards for Hazardous Air Pollutants; subparts A, E and V
4. Clean Air Act, Section 171, 42 U.S.C. Section 7501 as of 12/93
5. Clean Air Act, Sections 111 and 112, 42 U.S.C. Sections 7411 and 7412, as of 12/93
6. Maine Department of Environmental Protection, Chapter 114, Classification of Air Quality Control Regions
7. State of Maine, Department of Human Services, Derivation of Interim Exposure Guidelines for the Hazardous Air Pollutant Program, 5/90
8. 40 CFR Part 58, Appendix B
9. 40 CFR Part 63, National Emission Standards for Hazardous Pollutants; subparts A, Q, S, MM, PP, QQ, RR, VV, JJJ and Appendices.
10. 40 CFR Part 51 and Appendices
11. 40 CFR Part 52 and Appendices
12. 40 CFR Part 53 and Appendices
13. 40 CFR Part 70
14. Amendments to Pulp and Paper NESHAP in 40 CFR Part 9, 65 FR 80755
15. Clean Air Act, Section 182(f)
16. 40 CFR Part 75
Ninth, Sec. 12. Tenth, Sec. 5. Eleventh, Sec. 5. Thirteenth, Sec. 5. Fifteenth, Sec. 3. Seventeenth, Sec. 5, 5-A, 5-B, 5-C, 5-D and 5-E. Seventeenth, Sec. 123. Twenty-First, Sec. 4.
CHAPTER 1
GENERAL PROVISIONS
Part
1. Short Title, Purposes, Policies and Authority 2. General Definitions
PART 1 SHORT TITLE, PURPOSES, POLICIES AND AUTHORITY
Section §1-101 Short Title §1-102 Purposes and Policies §1-103 Authority §1-104 Territorial Application §1-105 Severability §1-106 Effective Date and Applicable Dates §1-107 Savings Clause §1-108 Other Rights
§1-101 SHORT TITLE
This Ordinance shall be known and may be cited as the “Jay Environmental Control and Improvement Ordinance”.
§1-102 PURPOSES AND POLICIES
A. The purposes and policies of this Ordinance are:
The Town of Jay has enacted this Ordinance for the purpose of protecting the public health, safety and welfare of the inhabitants of the Town of Jay and for protecting and enhancing the Town of Jay's environment. This Ordinance is enacted pursuant to the Home Rule powers bestowed upon the Town of Jay by the Constitution and laws of the State of Maine. This Ordinance is intended to provide a comprehensive scheme of environmental regulation at the local level in furtherance of the policies espoused by federal and state environmental laws and regulations for the protection of the human health and environment. This Ordinance is enacted to prevent threats to the public health and environment posed by the discharge of pollutants and contaminants, whether to air, water or land.
This Ordinance is the result of a lengthy and thorough consideration of the alternatives available to the Town of Jay for protecting the human health and environment and this Ordinance seeks to harmonize with federal, state and local environmental laws and regulations. Therefore, to the extent feasible, procedures under this Ordinance will encourage cooperation and sharing of information with other permitting agencies of government and devise forms and filing requirements which correspond to or can be satisfied by those employed by other governmental agencies. Where it aids the timely execution of these duties, the Board may consent to hold hearings jointly with other agencies of government considering similar permits or approvals.
In addition to the foregoing, the purposes and policies of this Ordinance are:
1. To provide for the protection of the human health and environment in the Town of Jay;
2. To conserve and protect the Town of Jay's natural resources including its flora and fauna;
3. To provide for the protection of surface water, ground water and drinking water in the Town of Jay;
4. To provide for water quality which will enhance the protection and propagation of fish and wildlife and will provide for recreation in and on state waters within the Town of Jay;
5. To control and monitor through a permitting system the amount of pollution which can be discharged or emitted into the Town of Jay's environment;
6. To foster local control of the environment through the exercise of the Town of Jay's home rule authority:
a. By bestowing certain powers and duties upon the Town of Jay's Planning Board and the Town of Jay's Code Enforcement Officer;
b. By establishing uniform procedures and guidelines for the protection of public health, welfare and safety and the environment during emergency conditions which create or are likely to create a substantial and immediate danger;
c. By providing uniform procedures and guidelines to protect the public health, welfare and safety and the environment, including air, water, and land;
d. By providing procedures for abating and controlling the pollution of the Town of Jay's environment; and
e. By providing a system for the imposition of penalties, stop orders and injunctions for violations of this Ordinance in order to foster compliance with this Ordinance and the terms and conditions of any permits, orders or approvals issued pursuant to this Ordinance;
7. To implement Federal and State policies that encourage municipalities to regulate the environment;
8. To provide for the careful planning, analysis, and management of air contaminants, pollutant and contaminant discharge, solid waste disposal and land use in the Town of Jay to prevent damage to human health and the environment;
9. To restore and maintain the chemical, physical, and biological integrity of the Town of Jay's air, water and land;
10. To control, regulate, abate, reduce, and prevent pollution of the Town of Jay's air by smoke, dust, fumes, particulate matter, gases, odors, mists, vapors, and similar matters or any combination thereof;
11. To control, regulate, abate, reduce, and prevent pollution of the Town of Jay's waters by the discharge of pollutants or contaminants in such waters;
12. To control, regulate, abate, reduce, and prevent pollution of the Town of Jay's land, air and waters by solid waste disposal;
13. To regulate open dumping of solid waste which is a potential source of contamination of drinking water supplies, ground water and surface water;
14. To provide for solid waste management in the Town of Jay;
15. To provide uniform procedures and standards in regulating and approving subdivisions in the Town of Jay;
16. To provide protection for the Town of Jay's natural resources, which will protect and preserve property values, recreational opportunities and the quality of life of the inhabitants of the Town of Jay;
17. To provide a comprehensive system and clear guidelines for protecting the environment of the Town of Jay, including air, water, solid waste disposal and land use concerns; and
18. To encourage pollution prevention through appropriate voluntary, cooperative and collaborative activities involving representatives of the Town and others including individuals and companies residing or doing business in Jay; provided, however, nothing said or done by any one or more members of the Planning Board or the Code Enforcement Officer or any other representative of the Town of Jay in any such collaborative or cooperative program shall be legally sufficient to work any estoppel or otherwise to commit or bind the Board or the Town on any issue relating to any provision of this Ordinance or any permit or order issued hereunder.
B. This Ordinance shall be liberally construed to effectuate its purposes and policies.
First, Sec. 2. Thirteenth, Sec. 6. Fourteenth, Sec. 4. Seventeenth, Sec. 6 and 7.
§1-103 AUTHORITY
This Ordinance is enacted pursuant to the Constitution of the State of Maine and the laws of the United States of America and the laws of the State of Maine.
First, Sec. 3. Fifth, Sec. 2. Tenth, Sec. 6. Seventeenth, Sec. 8.
§1-104 TERRITORIAL APPLICATION
This Ordinance applies to all persons conducting activities in the Town of Jay which are regulated by this Ordinance.
§1-105 SEVERABILITY
If any provision or section of this Ordinance, or the application thereof to any person or circumstance, is held void or invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect in whole or in part without the invalid provision or application, and to this end each provision of this Ordinance is declared to be severable and independent. It is the intent of the Town of Jay that each and every part, clause, paragraph, section and subsection of this Ordinance be given effect to the degree possible.
§1-106 EFFECTIVE DATE AND APPLICABLE DATES
A. This Ordinance shall be effective upon enactment by the annual town meeting or a special town meeting of the Town of Jay. It shall apply immediately to all new sources of pollution, the construction or operation of which begins after the date of such enactment. Sections 9-701 and 9-801 of this Ordinance shall also apply immediately upon enactment to the closure of a solid waste landfill that occurs after the date of such enactment.
B. The Board shall approve and furnish forms as required by this Ordinance for each permit or approval. Within six (6) months of the Board's approval of the form of application for any permit or approval required under this Ordinance, every person subject to this Ordinance shall file with the Board an application for each such permit or approval required.
C. Any existing use, activity or discharge of a pollutant or contaminant in the Town of Jay at the time of enactment of relevant portions of this Ordinance which is subject to regulation pursuant to this Ordinance, is deemed an “Existing Use.” Any person owning or operating an Existing Use shall make application for all permits or approvals governing activities subject to this Ordinance within six (6) months after the Board approves the forms for applications under any provision of this Ordinance. During this period for application an Existing Use may continue to operate under the operating conditions and levels affecting the discharge of pollutants or contaminants at the time of enactment of relevant portions of this Ordinance and as permitted or allowed by state and federal law, permits, licenses or approvals.
Existing Uses may not continue to operate without the required permit(s) or approval(s) under this Ordinance beyond a point six (6) months after the Board approves the forms for applications under any provision of this Ordinance; provided, however, that the owner or operator of an Existing Use who has made timely application for all necessary permits or approvals under this Ordinance and pays the application fees when due in accordance with Section 3-113(A), shall be allowed to continue under the operating conditions and levels affecting discharge of pollutants or contaminants as of the effective date of said provision of the Ordinance until such time as the Board has acted in the negative to deny a particular required permit or approval. Permission for an Existing Use to continue to operate pending a decision of the Board may be extended by the Board for good cause or with consent of the Applicant. Nothing in this provision is meant to override or contradict the obligations of any agencies of government to protect the public health, safety, welfare and environment against public nuisances or imminent threats.
D. Prior to the termination of an existing permit or approval under this Ordinance, an Applicant subject to this Ordinance shall make reapplication for a renewed or new permit or approval at least one-hundred eighty (180)days prior to the specified termination of said permit or approval. Only if such application is timely made in a complete and satisfactory manner, the applicant shall be entitled to continue operation under the current permit or approval past the specified termination date of same, until the Board renders a decision on the application for renewal or new permit.
First, Sec. 4. Sixth, Sec. 2.
§1-107 SAVINGS CLAUSE
Nothing in this Ordinance may be construed to affect any substantive right or obligation gained by any person solely under the provisions of any law repealed or amended by this Ordinance. All substantive rights and obligations created under the provisions of any law repealed or amended by this Ordinance continue in effect.
All officers, officials or other persons elected, appointed, hired or otherwise selected to act in any capacity under provisions repealed or amended by this Ordinance shall continue in that capacity under the provisions of this Ordinance.
First, Sec. 5.
§1-108 OTHER RIGHTS
Nothing in this Ordinance is intended, nor shall be construed, to limit, impair, abridge, create, enlarge or otherwise affect, substantively or procedurally, the right of any person to damages or other relief on account of injury to persons or property due to any violation of this Ordinance or to activity subject to this Ordinance and to maintain any action or other appropriate procedure therefor; nor to so affect the powers of the State to initiate, prosecute and maintain actions to abate public nuisances.
Nothing in this Ordinance is intended, nor shall be construed, to limit, impair or abridge, substantively or procedurally, the powers of the Town of Jay under state or common law to protect the general health, safety and welfare by initiating, prosecuting and maintaining actions concerning activities not in violation of this Ordinance.
First, Sec. 6. Sixth, Sec. 3.
PART 2 GENERAL DEFINITIONS
Section
§1-201 General Definitions
§1-201 GENERAL DEFINITIONS
Subject to additional definitions contained in the subsequent Chapters of this Ordinance which are applicable to specific parts or parts thereof, and unless the context otherwise requires, in this Ordinance the following terms have the following meanings:
A. Applicant. “Applicant” means any person applying for a permit, certification, approval, or similar form of permission, or a modification, repeal or renewal thereof, from the Jay Planning Board.
A-1. Begin Construction. “Begin construction” means, in general, initiation of physical onsite construction activities which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities, which mark the initiation of the change.
B. Board. “Board” means the Jay Planning Board.
C. B.T.U. “B.T.U.” means British Thermal Units.
D. Code Enforcement Officer. “Code Enforcement Officer” means the Jay Code Enforcement Officer.
E. Day. “Day” means calendar day.
E-1. Existing Source. “Existing source” means any source of a pollutant or contaminant within the Town of Jay which began construction, operation or discharge prior to the time of enactment of relevant portions of this Ordinance.
F. Contaminant. “Contaminant” means any substance that is spilled, discharged, leaked, pumped, poured, emitted, emptied, discharged, injected, escaped, leached, dumped, or disposed into the environment of the Town of Jay in sufficient quantities or of such characteristics or duration as to be injurious to humans, plant or animal life or property, or which unreasonably interferes with the enjoyment of life or property in the Town of Jay.
G. Facility. “Facility” means any building, structure, installation, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft from which there is any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escape, leaching, dumping or disposing of a pollutant or containment into the environment.
H. Interested Person. “Interested Person” means any person having a property right or interest in a facility or who may be aggrieved by the granting, modification, repeal or denial of any permit, approval or order by any proceeding under this Ordinance. The meaning must be determined according to the particular purposes of, and matter involved in, any proceeding.
I. Issuing Authority. “Issuing Authority” means the Board.
J. Jay Air Emission Permit. “Jay Air Emission Permit” means the permit which may be issued by the Board pursuant to Sections 13-101 et seq. of this Ordinance.
K. Jay Solid Waste Disposal Facility Permit. “Jay Solid Waste Disposal Facility Permit” means any Solid Waste Disposal Facility Permit which may be issued pursuant to Sections 9-101 et seq. of this Ordinance.
L. Jay Water Permit. “Jay Water Permit” means the permit which may be issued by the Board pursuant to Sections 12-101 et seq. of this Ordinance.
L-1. M.D.E.P. “M.D.E.P.” means the Maine Department of Environmental Protection or the Maine Board of Environmental Protection.
M. New Sources of Pollution. “New sources of pollution” means any source of a pollutant or contaminant which begins construction, operation or discharge after the effective date of relevant portions of this Ordinance.
N. Ordinance. “Ordinance” means the several chapters comprising this Ordinance, as may be amended from time to time.
O. Permit. “Permit” means any permit, certificate, approval, registration, schedule of compliance or similar form of permission required or authorized by this Ordinance, and shall include but not be limited to the Jay Air Permit, Jay Solid Waste Facility Permit, Jay Water Permit and Jay Subdivision Permit, as applicable.
P. Permit Holder. “Permit holder” means a person who has received a permit pursuant to any chapter of this Ordinance.
Q. Person. “Person” means an individual, corporation, partnership, association, Federal, state or local governmental entity, or a combination thereof, and the agents of same.
R. Person Aggrieved. “Person Aggrieved” means any person who because of an act or failure to act by the issuing authority, may suffer an injury, in fact, which is different either in kind or magnitude from that suffered by the general public and which is within the scope of the interests identified in this Ordinance. Such person must specify in writing sufficient facts to allow the Board to determine whether or not the person is aggrieved.
S. Pollutant. “Pollutant” means any substance that is spilled, leaked, pumped, poured, emitted, emptied, discharged, injected, escaped, leached, dumped or disposed into the environment of the Town of Jay in sufficient quantities or of such characteristics or duration as to be potentially injurious to human, plant or animal life or property, or the enjoyment of life or property in the Town of Jay.
T. Respondent. “Respondent” means any person alleged to have violated any provision of this Ordinance or the terms of any permit or approval issued pursuant to this Ordinance.
U. Selectmen. “Selectmen” means the town officers elected to the Jay Board of Selectmen by the residents of the Town of Jay at the annual town meeting or a special town meeting.
V. Transfer. “Transfer” means the transfer of property which is the subject of any permit, approval or order under this Ordinance including the sale or lease of such property, or any other transaction or proceeding through which the property undergoes a change in ownership including, but not limited to, the sale of 50 percent of more of the stock of or interest in a corporation, partnership or any other entity which owns the property which is the subject of a permit, approval or order, the sale of stock in the form of a statutory merger or consolidation sale of the controlling share of the assets, change in the identity or financial reorganization of a corporation, partnership or any other entity which owns the property which is the subject of a permit, approval or order, but excluding corporation reorganization not substantially affecting the ownership of the property which is the subject of a permit, approval or order issued pursuant to this Ordinance.
First, Sec. 7, 8, 9, 10, 11, 12 and 13. Sixth, Sec. 4 and 5. Seventeenth, Sec. 9, 10, 11, 12 and 13.
CHAPTER 2
PLANNING BOARD-CODE ENFORCEMENT OFFICER
PART 1 PLANNING BOARD Section §2-101 Short Title §2-102 Establishment §2-103 Composition §2-104 Appointment §2-105 Terms of Office §2-106 Vacancies §2-107 Removal §2-108 Compensation §2-109 Officers §2-110 Meetings, Quorum, Agenda, Materials §2-111 Powers and Duties §2-112 Appeals Seventeenth, Sec. 14.
§2-101 SHORT TITLE
This Chapter shall be known and may be cited as the “Jay Environmental Control and Improvement Ordinance--Planning and Code Enforcement.”
§2-102 ESTABLISHMENT
The Town of Jay hereby repeals the authority for the Planning Board in existence on the effective date of this Ordinance and establishes the Jay Planning Board pursuant to Article VIII, Part Second of the Maine Constitution and the laws of the State of Maine, including, but not limited to 30-A M.R.S.A. Section 3001.
First, Sec. 14. Fifth, Sec. 3.
§2-103 COMPOSITION
The Board shall consist of eight (8) members and up to two (2) alternate members. Members of the Board and alternate members shall be residents of the State of Maine, at least eighteen 18 years of age and citizens of the United States at all times during their terms, and shall neither be officers nor employees of the Town of Jay or any of its boards, agencies or departments.
An alternate member shall attend all meetings of the Board and participate in its proceedings, but may vote only when designated by the Chairman to sit for a member. If any member or alternate member misses three (3) or more consecutive meetings of the Board then it may be cause for removal of such member.
When a member is unable to act because of interest, physical incapacity, absence or any other reason satisfactory to the Chairman, the Chairman shall designate an alternate member to sit and vote in his or her stead.
§2-104 APPOINTMENT
The members of the Board and alternate members shall be appointed by the Board of Selectmen. The town manager or any individual selectman only shall have the authority and power to nominate one or more individuals for consideration of the Board of Selectmen for appointment to the Board. At least fourteen (14) days prior to a decision on nominees by the Board of Selectmen, the names of all nominations shall be posted by the Town Clerk in one or more conspicuous public places in the Town of Jay and notice shall be published once in a newspaper having a general circulation in the Town of Jay. The Board of Selectmen may then, in its sole discretion, hold a public hearing on the appointment of any nominee for the Board. In such case, the time period within which the Board of Selectmen shall decide upon the nomination shall be extended by up to a thirty (30) day period as the Board of Selectmen shall determine. If a public hearing is held on any nomination, the Board of Selectmen may use the notice and procedural requirements set forth in Chapter 3, Section 3-107 of this Ordinance.
Seventeenth, Sec. 15. Twenty-First, Sec. 5.
§2-105 TERMS OF OFFICE
Except for Initial Appointees as specified below, the term of each member and alternate member shall be five (5) years. Members shall serve until their successors are duly appointed, qualified and assume their duties.
Initial Appointees. Initially, and as provided in Section 2-104, two members shall serve for 1 year; two members for 2 years, two members for 3 years; two members for 4 years; and two members for 5 years. The Board of Selectmen shall determine which Initial Appointees shall serve for which number of years.
Seventeenth, Sec. 16.
§2-106 VACANCIES
The Board of Selectmen may declare a vacancy on the Board upon the nonacceptance, resignation, death, removal, permanent disability or incompetency of any member, relocation of a member's place of residence outside the State of Maine, or failure of any person to qualify for office. In such circumstances, the Board of Selectmen shall fill all positions of members or alternate members; pending any such action, the Chairman may designate an alternate member to act to fill a vacancy.
Seventeenth, Sec. 17. Twentieth, Sec. 4.
§2-107 REMOVAL
The Board of Selectmen may remove any member or alternate member of the Board for cause, after notice and hearing. The term “cause” shall mean conduct or conflict affecting the ability and fitness of the member or alternate member to perform his duties.
The notice provided hereunder shall be in writing and shall state the reasons for the proposed removal and inform the member or alternate member of his right to a hearing before the Board of Selectmen within thirty (30) days of receipt of the notice. This hearing may be held in executive session if the requirements of 1 M.R.S.A. 405, as amended by PL 1987, c. 769, Sec. 1, are met or, upon request by the member or alternate member to be removed, an open meeting may be held in accordance with 1 M.R.S.A. 401 et seq. and this Ordinance. Any meeting shall be held utilizing procedures established for enforcement hearings in Chapter 4B herein.
First, Sec. 15. Thirteenth, Sec. 8. Seventeenth, Sec. 18.
§2-108 COMPENSATION
All members and alternate members of the Board shall receive compensation at the rate of $20 for each meeting attended. Tenth, Sec. 7. Eighteenth, Sec. 4.
§2-109 OFFICERS
A. Election of Officers.
The Board shall, by majority vote, elect a Chairman, Vice-Chairman and Secretary at an annual organizational meeting held in September or, in the case of Initial Appointees or upon the resignation, removal or cessation of service of any of the officers, as soon thereafter as practical for the purpose of filling any vacancies. The Chairman, Vice Chairman and Secretary shall each serve a term of one year or until his or her successor is duly elected by the Board. The Chairman, Vice Chairman and Secretary may serve successive terms, if so elected.
B. Chairman.7
The Chairman shall preside at all meetings, if present, shall prepare the agenda as provided in Section 2-110 (c) herein, shall call special meetings and workshops when necessary, shall transmit reports, plans and recommendations of the Board to the appropriate governing authority, and shall fulfill all the customary functions of his or her office. The Chairman may also administer oaths.
C. Vice-Chairman.
In the absence of the Chairman, the Vice-Chairman shall act as chairperson and shall have all the powers of Chairman.
D. Secretary.
The Secretary, or any other person so employed or so designated by the Board, shall assist the Chairman in preparing the agenda for Board meetings and proceedings, send out notices for meetings, public hearings and other proceedings of the Board, record, maintain and show the vote of each member on every question in which a formal recorded vote is made under the procedure of the Board or his or her absence or failure to vote, and shall maintain a permanent record of all correspondence, findings, resolutions and determinations of the Board. All records shall be deemed public and may be inspected at reasonable times. The Secretary shall also make such certifications of Board action as may be required from time to time.
§2-110 MEETINGS, QUORUM, AGENDA, MATERIALS A. Meetings.
Regular meetings of the Board shall be held at least monthly, or as provided by rule of the Board unless excused by the Chairman.
Special meetings may be called by the Chairman, the Chairman designated for a particular matter or any four (4) members of the Board.
The Board may hold executive sessions as provided in the Maine Freedom of Access Act, 1 M.R.S.A. 401 et seq., otherwise all meetings, hearings, proceedings and deliberations of the Board shall be open to the public in accordance with the Maine Freedom of Access Act, 1 M.R.S.A. 401 et seq.
Workshops may be called by the Chairman or members designated by the Chairman for the presentation of information. Workshops shall be informational only, shall not be used by the Board for the weighing of positions or reasons for or against a proposition, and shall not be used by the Board for the formulation of formal decisions on any matter.
Any member of the Board may voluntarily disqualify himself or herself from voting on a particular matter for any reason, including conflict. In addition, a member shall be disqualified from voting on a particular matter for any reason by a majority vote of the members present and voting, except the member whose disqualification is at issue shall not vote on his or her own disqualification.
B. Quorum.
No business shall be transacted by the Board without a quorum. A quorum shall consist of five (5) members or alternate members authorized to vote. The Board shall act by majority vote, calculated on the basis of the number of members present and voting. If less than a quorum is present, the meeting may be adjourned for a period not exceeding three (3) weeks at any one time.
C. Agenda.
No item of business or plan shall be placed on the Board agenda for any meeting unless such item or plan shall have been submitted to the Board not less than ten (10) days prior to the date of a meeting or other proceeding, provided, however, that the Board may, upon request or on its own motion, waive the 10 day advance submission requirement. The Chairman shall determine the agenda in such a manner as to facilitate the execution of the duties of the Board. The Board may table any item of business or plan to a future Board meeting.
D. Materials.
Submittals associated with an item of business or plan placed on the Board agenda shall be provided to the Board not later than ten (10) days prior to Board consideration of that submittal provided, however, that the Board may, upon request or on its own motion, waive the 10 day advance submission requirement.
First, Sec. 16. Sixth, Sec. 6. Tenth, Sec. 8. Seventeenth, Sec. 19 and 20.
§2-111 POWERS AND DUTIES
The Board shall have the following powers and duties:
A. To prepare and recommend to the Board of Selectmen a comprehensive plan as defined in 30-A M.R.S.A. Section 4301, et seq., and to review and make recommendations on all investigations, reports and plans relating to the planning and development of the Town of Jay or affecting the comprehensive plan;
B. To hear and review applications for a Jay Subdivision Permit and to grant, grant with conditions, modify, repeal, or deny a Jay Subdivision permit;
C. To hear and review applications for a Jay Solid Waste Disposal Facility Permit and to grant, grant with conditions, modify, repeal or deny a Jay Solid Waste Disposal Facility Permit;
D. To hear and review applications for a Jay Water Permit and to grant, grant with conditions, modify, repeal or deny a Jay Water Permit;
E. To hear and review applications for a Jay Air Emission Permit and to grant, grant with conditions, modify, repeal or deny a Jay Emission Air Permit;
E-1.To administer enforcement proceedings including, but not limited to conducting enforcement hearings, to assure compliance with this Ordinance and other applicable Jay Ordinances;
F. To exercise such powers as are provided to the Board by the several Ordinances of the Town of Jay and the Constitution and laws of the State of Maine;
G. To perform such duties as delegated and requested by the Board of Selectmen; and to perform such duties as requested by other public agencies, as the Board determines is proper and appropriate;
H. To make such investigations, maps and reports relating to the planning and development of the Town of Jay as needed to fulfill the requirements of the several ordinances of the Town of Jay, the Constitution and the laws of the State of Maine;
I. To obtain such goods and services, and employ or contract with such staff, including but not limited to a Planning Director, attorneys, engineers and other professionals as may be necessary to carry out its duties hereunder and to pay for such expenses within the limits of appropriations made for the purpose;
J. To hold hearings jointly with other agencies of the government in connection with activities which are subject to the provisions of this Ordinance;
K. To issue such orders as necessary to properly administer and to ensure compliance with the Ordinance; and
L. To issue subpoenas for the attendance of witnesses or for the production of documents as follows:
1. General. At the request of the Board, or any member thereof, or at the request of the Code Enforcement Officer, the Environmental Enforcement Counsel, or an applicant in any proceeding under Chapter 3 or a respondent in any proceeding under Chapter 4-B, the presiding officer may issue subpoenas for the attendance of witnesses or for the production of documents.
2. Form. Every subpoena so issued shall bear the name of the Board, the name of the issuing officer and shall command the person to whom it is directed to attend and give testimony or produce specified documents or things at a designated time and place. The subpoena shall also advise of the quashing procedure provided herein.
3. Service. Unless receipt of the subpoena is acknowledged by the witness, it shall be served by a person who is not a party to the proceeding and is not less than 18 years of age. Service shall be made by delivering a copy of the subpoena to the person named in it and tendering the fees and mileage paid to witnesses in the superior courts of this state.
4. Return. The person serving the subpoena shall make proof of service by filing the subpoena and affidavit or acknowledgment of service with the Board. Failure to make such proof of service shall not affect the validity of such subpoena and service.
5. Quashing. On motion made promptly, and in any event before the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the presiding officer may (a) quash or modify the subpoena on a finding that it is unreasonable or required evidence not relevant to any matter in issue, or (b) condition denial of the motion on just and reasonable terms. Any person requesting a hearing on a motion to quash a subpoena shall be granted a hearing before the Board upon such motion.
6. Denial of Subpoena. The Board may condition denial of the subpoena upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
First, Sec. 17, 18 and 19. Fifth, Sec. 4. Sixth, Sec. 7. Tenth, Sec. 9. Seventeenth, Sec. 21, 22 and 23. Eighteenth, Sec. 5.
§2-112 APPEALS
An appeal from any final decision or action of the Board may be taken by any aggrieved party in accordance with Chapter 3 and Chapter 4B, as may be appropriate.
First, Sec. 20. Thirteenth, Sec. 9.
PART 2 CODE ENFORCEMENT OFFICER
§2-201 Establishment
§2-202 Appointment; Term
§2-203 Powers and Duties
§2-204 Compliance
§2-205 Investigation
§2-206 Enforcement
Thirteenth, Sec. 7.
§2-201 ESTABLISHMENT
The Town of Jay hereby establishes the office of Code Enforcement Officer and the office of Deputy Code Enforcement Officer.
Twentieth, Sec. 5.
§2-202 APPOINTMENT; TERM
The Code Enforcement Officer shall be appointed by July 1 of each year by the Board of Selectmen for a term of one year. A Code Enforcement Officer may be reappointed for an unlimited number of successive one year terms by the Board of Selectman. In addition, the Board of Selectmen may appoint a Deputy Code Enforcement Officer.
The Code Enforcement Officer and the Deputy Code Enforcement Officer, if any, shall be residents of the State of Maine, at least 18 years of age and citizens of the United States at all times during his or her term. The Code Enforcement Officer shall be certified, and the Deputy Code Enforcement Officer may be certified: (a) under the provisions of 38 M.R.S.A. Section 441, or its successor, as familiar with court procedures, and (b) as a code enforcement officer under the provisions of 30-A M.R.S.A. Section 4451.
The Board of Selectmen may remove a Code Enforcement Officer or the Deputy Code Enforcement Officer for cause, after notice and hearing utilizing similar procedures to those specified in Section 2-107 herein for the removal of a Board member. The term “cause” shall mean conduct or conflict affecting the ability and fitness of the Code Enforcement Officer, or the Deputy Code Enforcement Officer, to perform his or her duties. If a Code Enforcement Officer or the Deputy Code Enforcement Officer, if any, is unable to act because of interest, physical incapacity, absence or other reason satisfactory to the Board of Selectmen, the Board of Selectman shall designate another person to fill the vacancy.
First, Sec. 21. Fifth, Sec. 5. Twentieth, Sec. 6.
§2-203 POWERS AND DUTIES
A. Powers Generally.
1. The Code Enforcement Officer shall be empowered to execute the duties of his or her office in a manner necessary and proper to effectuate the provisions of this Ordinance, the Jay Shoreland Zoning Ordinance and other ordinances of the Town of Jay.
2. The Code Enforcement Officer shall have the power to enter any property at reasonable hours and to enter any building with the consent of the property owner, occupant or agent, to inspect the property or structure for compliance with this Ordinance, the Jay Shoreland Zoning Ordinance and other Ordinances of the Town of Jay.
3. The Code Enforcement Officer shall have the power to represent the Town of Jay in District Court in the prosecution of alleged violations of this Ordinance, the Jay Shoreland Zoning Ordinance and other ordinances of the Town of Jay.
4. The Code Enforcement Officer shall have the power to obtain such goods and services and to contract with attorneys, engineers and other professionals as may be necessary to carry out his or her duties hereunder within the limits of appropriations made for the purpose.
5. The Deputy Code Enforcement Officer shall have the powers duties, obligations, and liabilities of the Code Enforcement Officer when the Code Enforcement Officer is absent or unable to perform the duties of Office. The Code Enforcement Officer may distribute the duties of Office to the Deputy Code Enforcement Officer as deemed necessary for economy and efficiency in administration.
B. Duties.
The duties of the Code Enforcement Officer shall be to enforce this Ordinance, the Jay Shoreland Zoning Ordinance and other ordinances of the Town of Jay that specifically authorize enforcement by the Code Enforcement Officer.
Thirteenth, Sec. 10. Twentieth, Sec. 7. Twenty-First, Sec. 6.
§2-204 COMPLIANCE
The Code Enforcement Officer shall be responsible for overseeing compliance with the provisions of the Ordinance and the terms of any permits issued pursuant to the Ordinance as set forth in Chapters 3 and 4A and compliance with the Jay Shoreland Zoning Ordinance and the Jay Floodplain Management Ordinance.
Thirteenth, Sec. 11.
§2-205 INVESTIGATION
The Code Enforcement Officer may investigate alleged violations of this Ordinance as set forth in Chapter 4A.
Thirteenth, Sec. 12. Fourteenth, Sec. 5.
§2-206 ENFORCEMENT
The Code Enforcement Officer shall act in an advisory capacity to the Board during any enforcement proceedings, including enforcement hearings as set forth in Chapter 4B.
Thirteenth, Sec. 13.
CHAPTER 3
ADMINISTRATIVE Section §3-101 Application Requirements §3-102 Public Notice of Application §3-103 Public Access to Information §3-104 Confidentiality §3-105 Board Decisions §3-106 Action Prior to Hearing or Final Decision §3-107 Public Hearings §3-108 General Evidence §3-109 Documentary and Real Evidence §3-110 The Record and Burden of Proof §3-111 Proposed Findings and Conditions §3-112 Permit Conditions §3-113 Appeals §3-114 Advisory Rulings §3-115 Fees §3-116 Forms § _-117 Service and Filing of Documents §3-118 Computation and Enlargement of Time §3-119 Orders and Decisions Effective §3-120 Revocation, Modification or Suspension of Permits Tenth, Sec. 10. Thirteenth, Sec. 14. Seventeenth, Sec. 24.
§3-101 APPLICATION REQUIREMENTS
A. Contents of Application.
1. Forms. Application forms shall be promulgated 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 Ordinance.
2. Modification of a Permit. Any request by an applicant for a modification of a permit issued pursuant to this Ordinance shall comply with the provisions for application for a permit as contained in this Ordinance. The Applicant may incorporate by reference materials already in the permit record and which may be conveniently identified; by procedural order, the Board may order 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. Projects Requiring More Than One Application. Upon receipt of an application for a permit for an activity which will require more than one permit from the Board, the Board may require the applicant to submit all other required permit applications prior to the Board's consideration of any application.
4. Title, Right or Interest. The Board will consider an application only when the applicant has demonstrated 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 designated 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, a copy of the lease shall be supplied. The lease shall be of sufficient duration, as determined by the Board, to permit construction and reasonable use of the property including reclamation, closure and post closure care, where required;
c. When the applicant has an option to buy or lease the property, a copy of the option agreement shall be supplied. Option agreements shall contain terms deemed sufficient by the Board to establish future title or a leasehold of sufficient duration to permit construction and reasonable use of the property including reclamation, closure and post closure care, where required;
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
f. When the applicant has a written agreement with the landowner which permits the applicant to spread or apply waste material that will be utilized by the landowner over an extended period of time, a copy of that agreement shall be supplied.
5. Service. All applications shall contain a designation of a person in 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.
6. Copies of Federal and State Permits. The applicant shall, as part of the application process, submit to the Board copies of the most recent federal and state pollution control permits, approvals and licenses, including renewals, modifications, or extensions thereto, regulating an activity for which a permit is sought under this Ordinance. In addition, the applicant shall make available for inspection and copying all monitoring required by any state or federal permits and licenses; operating and maintenance records; records documenting spills, accidental discharges or emissions, and all other unlicensed discharges, emissions and releases; and reports on which the permits or licenses were based.
B. Continuing Data Requirements. The applicant shall have a continuing duty to provide copies of all renewed or modified federal and state pollution control permits, approvals and licenses as well as accompanying reports, applications and records of data, for activities which also have or require a permit under this Ordinance and to inform the Board promptly in writing of any modification, suspension or revocation of any such federal and state permits, approvals and licenses, and any official communication from any federal or state official or agency alleging non-compliance with any ordinance, statute, regulation, permit, approval or license.
First, Sec. 22. Sixth, Sec. 8. Thirteenth, Sec. 15. Fourteenth, Sec. 6 and 7. Seventeenth, Sec. 25.
§3-102 PUBLIC NOTICE OF APPLICATION
A. Except as provided in Chapter 5, Section 5-402(F), and Chapter 9, Section 9-403(E), the Board shall, within 10 days of the date on which an application for a new permit or permit renewal was filed, cause to be given public notice of the filing, inviting within twenty (20) days written comments on the application.
B. Except as provided in Chapter 5, Section 5-402(F), the Board shall, within 15 days of the date an application for a new permit or permit renewal has been determined acceptable for processing by the Board in accordance with Section 3-105(A), cause to be given public notice of the Board's determination, inviting within thirty (30) 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. Title and legal citation of the Ordinance 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 Town official to whom written comments and hearing requests should be directed.
First, Sec. 23. Sixth, Sec. 9. Eleventh, Sec. 6. Thirteenth, Sec. 16. Twentieth, Sec. 8.
§3-103 PUBLIC ACCESS TO INFORMATION
A. Except as expressly made confidential by law and by this Ordinance, 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 Section 3 or 4 of this Ordinance;
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 Town of Jay 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 50 cents per page;
Payment shall be made to the Town of Jay 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 Jay Town Office.
First, Sec. 24. Tenth, Sec. 11 and 12. Eleventh, Sec. 7.
§3-104 CONFIDENTIALITY
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.
First, Sec. 25.
§3-105 BOARD DECISIONS
A. Acceptable for Processing. Except as provided in Chapter 5, Section 5-402(B), the Board shall, within 45 days of receipt of an application, notify the applicant in writing either that the application is acceptable for processing or, if the application is not acceptable for processing, the specific additional information needed to make an acceptable application.
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 Ordinance or any other provision of law.
C. Public Hearing. Except as provided in Chapter 5, Section 5-402, within 75 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.
If the Board decides to hold a public hearing, the hearing shall take place within 140 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 3-107.
D. Board Action. Except as provided in Chapter 5, Section 5-403, within 45 days of the close of the public hearing, or any continuance 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, without conditions other than the standard conditions specified in Section 3-110 and the standard conditions specified in Section 5-502, Section 9-404, Section 12-302 or Section 13-302, as applicable, and as approved by the Board, and set forth in writing its findings that the applicant has met each of the criteria of the appropriate chapter of this Ordinance;
2. Approve the application, subject to the standard conditions in Section 3-112 and the standard conditions specified in Section 5-502, Section 9-404, Section 12-302, or Section 13-302, as applicable, and as approved by the Board, and subject to any other additional conditions necessary for the applicant to satisfy the requirements of this Ordinance, and set forth in writing its findings and the reasons for the imposition of these conditions;
3. 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 Ordinance 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 applies 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, intervenor(s) and the public of any such extension.
First, Sec. 26, 27 and 28. Fifth, Sec. 6. Eleventh, Sec. 8. Thirteenth, Sec. 17.
§3-106 ACTION PRIOR TO HEARING OR FINAL DECISION
The following procedures may apply to any application pending before the Board.
A. 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:
1. presentation of evidence or argument by the applicant or by members of the public;
2. opportunities for the Board or staff to seek or provide amplification or clarification of any matter under consideration by the Board;
3. particular methods or formats for the submission of information such as pre-filed testimony or affidavit;
4. 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
5. such other mechanisms as may in the discretion of the Board facilitate orderly consideration of the issues presented during consideration of the application.
Thirteenth, Sec. 18. Seventeenth, Sec. 26.
§3-107 PUBLIC HEARINGS
The following procedures shall apply to all public hearings held by the Board except enforcement hearings or proceedings which are governed by Chapter 4B.
A. Requirement for Notice. Unless otherwise specified in this Ordinance, prior to any hearing conducted by the Board the Board shall provide notice as follows:
1. To the applicant at least 10 days prior to the hearing date by certified mail, return receipt requested;
2. At least 10 days prior to the hearing by regular mail to persons who have filed a written request to be notified of hearings;
3. At least 10 days prior to the hearing to persons who have made timely requests to be notified of a specific hearing;
4. By publication twice in a newspaper of general circulation in the Town of Jay. 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 7 but no more than 10 days prior to the date of the hearing; and
5. The Board may, by scheduling order, provide for additional notice.
For purposes of this Section, all notices shall be deemed to be delivered when deposited, postage prepaid, in the United States mail.
B. Contents of Notice. Notice of hearings shall contain the following minimum information:
1. Reference to the Ordinance authority under which the Board is acting;
2. The purpose of the hearing;
3. Time, date, and place of hearing;
4. The manner in which views may be submitted for consideration;
5. The place and time where relevant material may be examined prior to the hearing; and
6. The name, address and telephone number of the town official to contact for information.
C. 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.
1. 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.
2. 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:
a. That the application has been changed, and the nature of the change; and
b. The information provided in the original notice pursuant to subsections B(3), (4), (5) and (6), amended as necessary.
D. Presiding Officer
1. The presiding officer at all hearings shall be either (a) the Chairman of the Board, if present and willing to preside, or (b) a member of the Board selected by those members present at the hearing.
2. The presiding officer shall have the authority to:
a. Administer oaths;
b. Regulate the course of the hearing;
c. Rule upon issues of procedure;
d. Rule upon issues of evidence;
e. Hold conferences before or during the hearing for settlement or simplification of issues or procedure;
f. Regulate the placement of television cameras, still cameras, motion picture cameras or microphones at Board hearings in order that the use of such equipment does not interfere with the orderly conduct of the hearing;
g. 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
h. Take such other action as may be necessary for the efficient and orderly conduct of the hearing, consistent with this Ordinance and applicable statutes.
3. The presiding officer may be overruled by a majority vote of the Board members present on any decision or ruling relating to a hearing.
E. General Conduct
1. 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.
2. Transcription of Testimony. All testimony 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.
3. Witnesses. Witnesses shall be sworn. 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. Witnesses may be compelled to attend, testify and produce records if subpoenaed by the Board in accordance with the provisions of this Ordinance.
4. Testimony 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 testimony to be offered at such hearing be submitted in written form at such time and in such form as may be specified.
All persons offering testimony 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.
5. 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, briefs, and recommend conditions, providing that such documents shall be submitted in writing not later than seven (7) days after the close of the hearing or within such other time as ordered by the presiding officer or the Board. This subsection shall not apply to Board staff, consultants and counsel, all of whom shall have the right to submit such proposals at any time.
6. 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.
F. Public Participation
1. Members of the Public. Any person including any person deemed by the Board to have a direct and substantial interest in the proceeding, 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.
2. 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.
G. Oral Testimony. The following procedures shall apply in those hearings in which oral testimony is to be received by the Board:
1. 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.
2. Board members, staff, counsel and consultants may be permitted by the presiding officer to ask questions of any witness at any time.
3. 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.
4. 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 offer testimony and make statements, and may set time limits on such questions or statements.
First, Sec. 29 and 30. Tenth, Sec. 13. Thirteenth, Sec. 19. Seventeenth, Sec. 27.
§3-108 GENERAL EVIDENCE
A. Admissibility. Evidence which is relevant and material to the subject matter of the hearing and is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs 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.
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 therefor 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. An offer of proof may be made in connection with an objection to a ruling of the presiding officer excluding or rejecting any testimony or question on cross-examination. Such offer of proof shall consist of a statement of the substance of the proffered evidence or that which is expected to be shown by the answer of the witness.
Seventeenth, Sec. 28.
§3-109 DOCUMENTARY AND REAL EVIDENCE
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 Town 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.
Thirteenth, Sec. 20. Seventeenth, Sec. 29.
§3-110 THE RECORD AND BURDEN OF PROOF
A. 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 testimonial evidence whether pre-filed 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 ten (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. 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.
B. 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 Ordinance. 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 the Ordinance to enable the Board to take the action being sought by the applicant.
Thirteenth, Sec. 26.
§3-111 PROPOSED FINDINGS AND CONDITIONS
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 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 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 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.
Thirteenth, Sec. 28.
§3-112 PERMIT CONDITIONS
The Board may impose any appropriate and reasonable conditions in any permit issued under this Ordinance in order to ensure compliance with the provisions of this Ordinance. In addition, and except as otherwise provided, every permit shall be subject to the following standard conditions:
A. Inspection. Employees and authorized representatives of the Board or the Town of Jay shall be allowed access to the facility which is the subject of a permit issued pursuant to this Ordinance during normal business or operating hours, and at such other times as the Board deems necessary, to inspect such facility, to examine records, to sample or monitor any substances or parameters at any location to assure compliance with this Ordinance and the terms of any permit issued pursuant to it.
B. Modification. A new or modified permit shall be required prior to the change or modification of any activity regulated by permit under this Ordinance.
C. Compliance with Standards. All applicable standards in State laws and regulations, Federal laws and regulations and this Ordinance shall be complied with.
D. Record Keeping.
1. The permit holder shall maintain sufficient records to complete the application for any permit under this Ordinance and to record equipment malfunctions, failures, and downtime as well as any change or malfunction that would create above normal pollutant or contaminant emissions or solid waste disposal.
2. The permit holder shall for a period of six (6) years from the date of the sample, measurement or report, retain records of all monitoring information, including all calibration and maintenance records and all original recordings from continuous monitoring instrumentation, copies of all reports required by permit, and records of all data used to complete the application for a permit whether or not developed by the permit holder or an agent thereof.
3. Record keeping information shall be accessible at the permit holder’s facility or otherwise readily available upon request of the Board.
E. Time Limit for Construction. Unless a chapter of this Ordinance 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.
F. Monitoring. The holders of all permits except for Jay Subdivision Permits shall be subject to the following monitoring conditions:
1. The Board shall be allowed to install equipment of its own at the facility which is the subject of a permit in order to monitor those activities which are the subject of the permit.
2. The permit holder shall monitor the activity regulated by permit under this Ordinance according to test procedures approved by this Ordinance 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.
3. Monitoring records shall include information on:
a. The date, exact place, and time of sampling or measurements;
b. The individual(s) who performed the sampling or measurements;
c. The date(s) analyses were performed;
d. The individual(s) who performed the analyses;
e. The analytical techniques or methods used; and
f. The results of such analyses.
G. Reporting. The holders of all permits except for Jay Subdivision Permits shall submit the following reports in addition to any reports specifically required by any permit:
1. Quarterly Reports. Unless otherwise specifically superseded by a permit condition, Quarterly reports shall be submitted to the Board by the end of the succeeding month following the end of each quarter:
First Quarter Jan.-Mar. Report Due April 30 Second Quarter Apr.-Jun. Report Due July 31 Third Quarter Jul.-Sep. Report Due October 31 Fourth Quarter Oct.-Dec. Report Due January 31
Quarterly Reports shall contain:
a. the results of all monitoring of emissions and discharges required by a permit during the previous quarter;
b. description and quantification of all unpermitted or excessive emissions or discharges not in compliance with a permit including all non-compliance notifications made to the Town during that quarter;
c. description of any occurrences of any other kind which did or may have constituted noncompliance with any permit conditions during that quarter;
d. detailed analysis of the causes of all emissions, discharges and occurrences identified in response to subparagraphs b and c above and detailed description of all steps taken or planned to be taken to reduce or prevent emissions, discharges and occurrences reported in subparagraphs b and c above;
e. results and analysis of any stack testing or other testing of emissions and discharges regulated by a permit during that quarter;
f. compliance assurance reports and compliance certification as required by Chapter 13, Part 8.
2. Annual Reports. For each calendar year, a report shall be submitted to the Board by January 31 of the next year containing the following information:
a. Summary description of all studies, reports, projects, programs or other measures employed to meet permit requirements and year-long trends in emissions and discharges regulated by the permit; and
b. Copies of all Air Emission Statements, Toxic Use Reduction reports and Toxic Chemical Release Inventory reports as they are filed with relevant state and federal agencies during the year.
3. Additional Samples.
a. The permit holder shall analyze any additional samples as may be reasonably required by the Board to ensure quality control of the samples necessary for meeting permit conditions.
b. If the permit holder monitors any discharge or emission characteristics set forth in the permit more frequently than required, the results of such monitoring shall be included in the quarterly reports.
4. On an individual or case-by-case basis, for good cause, the Board may order alternate or additional reporting requirements.
5. Reports of Federal or State Violations. Every permit holder shall report to the Board in writing, within ten (10) days of receipt, any citations or notices of violation of federal or state environmental permits, approvals or licenses, including renewals, modifications or extensions thereto.
6. Short-term Noncompliance Reporting. For all Jay Air Emission Permit holders and Water Permit holders, short-term noncompliance reporting shall be in accordance with the procedures set forth in Chapter 12, Section 12-204 and Chapter 13, Section 13-205. In the event any other permit holder is unable to comply with any of the conditions of this Ordinance, the permit holder shall immediately notify the Board, the Code Enforcement Officer, or Jay Police Dispatcher by telephone with the following information and follow-up in writing within 48 hours after commencement of such non-compliance:
a. Description and quantification of the noncompliance and its cause;
b. Period of noncompliance, including exact date and times and, if the noncompliance has not been corrected, the anticipated time it is expected to continue; and
c. Steps taken or planned to reduce, eliminate and prevent reoccurrence of the noncompliance.
All permit holders shall notify the Board, the Code Enforcement Officer or Jay Police Dispatcher by telephone in the case of an emergency or in advance of any planned changes in activity which may result in noncompliance with the terms and conditions of any permit issued pursuant to this Ordinance.
Notwithstanding any requirement of this subsection, the noncompliance reporting provisions specifically set forth in the permit shall control.
H. Assignment or Transfer of Permits. Every permit issued by the Board is nontransferable unless written consent is obtained from the Board. Except as provided in Section 9-503(B), written consent must be applied for no later than two (2) weeks subsequent 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 Ordinance. The permit holder and proposed transferee or assignee shall be jointly and severally liable for violation of this subsection.
I. 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:
“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 authorize the Board and Code Enforcement Officer to enter the property that is the subject of this document, at reasonable hours, including buildings, structures or conveyances on the property, to determine the accuracy of any information provided herein. l am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment.”
First, Sec. 31 and 32. Tenth, Sec. 14. Eleventh, Sec. 9. (formerly § _-110) Thirteenth, Sec. 21, 22, 23, 24, and 25. Fourteenth, Sec. 8 and 9. Seventeenth, Sec. 30 and 31. Eighteenth, Sec. 6, 7 and 8.
§3-113 APPEALS
Any person aggrieved by a final decision of the Board on a permit application or a petition to amend or modify a Jay permit may seek judicial review thereof in accordance with Subsection B. A decision of the Board to grant or deny a permit application or a petition to amend or modify a Jay permit shall not be considered final for purposes of this section until the Board has taken final action on a petition for reconsideration under subsection A.
A. 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 Jay 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 30 day period.
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. Filing a petition for reconsideration is a prerequisite to filing a request for judicial review pursuant to subsection B of this section. Any person aggrieved must properly raise all issues in the petition for reconsideration. Any issues not so raised are deemed waived. Any person aggrieved by a final decision of the Board may only petition the Board for reconsideration of the decision once.
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 3-107. 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 Town of Jay. The Board's decision on a petition for reconsideration shall constitute its final decision.
In accordance with Subsection B, 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.
B. Judicial Appeal. Any person aggrieved by a final decision of the Board may seek judicial review in accordance with state law within 30 days from receipt of the notice of decision.
First, Sec. 33 and 34. Tenth, Sec. 15. (formerly § _-111) Thirteenth, Sec. 27. Fourteenth, Sec. 10.
§3-114 ADVISORY RULINGS
The Board may, in its sole discretion, issue advisory rulings at the request of any applicant, permit holder, Code Enforcement Officer or upon its own motion, concerning the applicability of this Ordinance to any activity or clarifying, but not modifying or amending, any permit issued under this Ordinance.
Requests for advisory rulings shall be submitted to the Board in writing. The Board may, in its sole discretion, conduct a hearing and may, in its sole discretion, issue an advisory ruling to the person requesting such ruling or reject such person’s application for an advisory ruling within 120 days of the Board's receipt of such request.
An advisory ruling shall not be binding on the Board provided that, in any subsequent enforcement proceeding initiated by the Board, any person's justifiable reliance upon the ruling shall be considered in mitigation of any penalty sought to be assessed.
Thirteenth Sec. 29. Seventeenth, Sec. 32.
§3-115 ENVIRONMENTAL RESERVE FUND AND FEES
A. Environmental Reserve Fund
The Environmental Reserve Fund is hereby established. The purpose of the Environmental Reserve Fund is to promote all the purposes, policies and objectives of this Ordinance as expressed therein. All fees required to be paid to the Town of Jay for Permits issued pursuant to this Ordinance, and all other sums of money paid to or given to the Town of Jay pursuant to this Ordinance including, without limitation, all fines and penalties shall be credited to the Environmental Reserve Fund and only the expenditures authorized by this Ordinance shall be charged to the Environmental Reserve Fund.
Money in the Environmental Reserve Fund shall be deposited, invested and administered by the Selectmen and the Treasurer of the Town of Jay and may be invested as provided by Maine law. Interest on the investments shall be credited to the Environmental Reserve Fund.
The Selectmen may receive, apply for, or accept, on behalf of the Town, funds, grants, bequeaths, gifts or contributions from any Person. All such funds shall be deposited in the Environmental Reserve Fund.
The Selectmen shall be the trustees of the Environmental Reserve Fund and the Environmental Reserve Fund, unless otherwise provided in this Ordinance, shall be subject to 30-A M.R.S.A. §5802, as amended from time to time.
If on December 15 of any year, the Net Balance in the Environmental Reserve Fund is equal to or greater than $1,000,000, then the Annual Fees for the next year shall not be due and payable. After a one year suspension of the Annual Fees, the Annual Fees shall then become due and payable the next year. This paragraph shall be invoked in any year when the criterion herein established has been met. The Net Balance in the Environmental Reserve Fund shall be calculated by subtracting from the total amount of money in the Environmental Reserve Fund all the sums that are then due and payable or those actual expenses that have been incurred.
B. Annual Fees Permit Holders of a Jay Air Emissions Permit, a Jay Water Permit, or a Jay Solid Waste Facility Permit (including a Schedule of Compliance as amended from time to time) shall pay to the Town of Jay an Annual Fee as follows:
1. Jay Air Emissions Permit
The Annual Fee for a Jay Air Emissions Permit shall be the sum of the applicable Base Fee Per Year and the Per Ton Fee Per Year of all permitted air pollutants as follows:
Annual permitted emissions in tons Base Fee Per Year
1-1,000 $15,000 1,001-4,000 25,000 over 4,001 35,000
The Per Ton Fee Per Year for all permitted air pollutants shall be $4.00 per ton.
The permitted air pollutants include, but are not limited to: PM, SO2, NOx, CO, VOC, H2SO4, lead, and TRS.
2. Jay Water Permit
The Annual Fee for Jay Water Permit shall be the sum of the Base Fee and the Fee per million gallons per day (“MGD”) of permitted flow as follows:
Base Fee: $5,000.00
Fee for MGD: $400.00 times the permitted flow in MGD
The first million gallons per day of permitted flow is exempt from the Annual Fee
3. Jay Solid Waste Facility Permit (including Schedule of Compliance as amended from time to time)
The Annual Fee for Jay Solid Waste Facility Permit (including Schedule of Compliance as amended from time to time) shall be $35,000.00.
These Annual Fees have been based upon the Town’s best estimate of the actual costs necessary for the Town to administer and enforce this Ordinance. All Annual Fees shall be credited to the Environmental Reserve Fund. The Annual Fees shall be due and payable to the Town of Jay on January 3, 2001 and each year thereafter on the same day; provided however, if the 3rd falls on a Saturday or Sunday, then the payment is due on the next Monday.
By December 1 of each year, the Code Enforcement Officer 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 Ordinance and a Violation of the Permit.
Failure to pay any Annual Fee as provided in this Ordinance is sufficient grounds for revocation of a Permit. There are no additional fees assessed for renewals or amendments. Any Schedule of Compliance entered into on or after January 3, 2001 shall provide for an Annual Fee.
C. Expenditures The Selectmen may authorize expenditures from the Environmental Reserve Fund. Such expenditures shall be all expenditures for the implementation, administration and enforcement of this Ordinance. Such allowable expenditures may include, but not be limited to, personnel or payroll expenses and benefits, including but not limited to, Code Enforcement Officer, Deputy Code Enforcement Officer, clerks and other staff, expenses relating to Planning 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 the 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 Ordinance, or any other expenditure for costs which are related to carrying out the objectives of this Ordinance.
D. Application Fee and Filing Fee The following Application Fee and Filing Fee shall be assessed against all applicants for a Permit with the exception of a Permit Holder who has a Jay Air Emissions Permit, a Jay Water Permit, or a Jay Solid Waste Facility Permit (including Schedule of Compliance as amended from time to time) and with the exception of those seeking a Jay Subdivision Permit governed by Chapter 5:
1. Filing Fee. A Filing Fee of One Thousand Dollars ($1,000.00) shall be paid at the time a Permit application is filed. Failure to pay the required fee at the time of filing will result in the application being returned to the applicant.
2. Application Fee. Fees for direct costs including, but not limited to, legal, engineering and other professional fees and other costs specifically accountable to a Permit as follows:
(a) An Application Fee for all direct costs incurred in reviewing Permit application and other submittals relating to a Permit; and (b) All costs relating to the preparation of information and materials for the Board associated with the Permit application.
3. 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 Code Enforcement Officer may cease its activity regarding the application, may take enforcement action pursuant to Chapter 4B to recover the Application Fee and may take appropriate enforcement action pursuant to Chapter 4B. Final payment of the Application Fee shall occur before issuance of the Permit.
4. Fee Administration. The Code Enforcement 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 that the Code Enforcement Officer establish an estimated non-binding budget for any Permit application. If the Code Enforcement Officer establishes such a budget, and if it appears that the budget will be exceeded, the Code Enforcement Officer shall notify the applicant with that information and shall provide an opportunity to discuss a revised budget.
First, Sec. 35. Sixth, Sec. 10. Eleventh, Sec. 10. (formerly § _-113) Thirteenth, Sec. 30. Seventeenth, Sec. 33. Eighteenth, Sec. 9. Twentieth, Sec. 9. Twenty-First, Sec. 7.
§3-116 FORMS
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 opaque paper 8 1/2 by 11 inches in size and bound; typed matter shall be double spaced. The first page of each such form shall be headed by the title:
State of Maine Town of Jay Planning 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., Jay, Maine); (2) the Board's application number (e.g., Jay Water Permit Application #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 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.
First, Sec. 36. Tenth, Sec. 16. (formerly § _-114) Thirteenth, Sec. 31.
§3-117 SERVICE AND FILING OF DOCUMENTS
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 Ordinance shall be mailed to all parties in the proceeding or their representatives by ordinary mail unless otherwise provided in this Ordinance.
Any notice required to be given or document filed or served under this Ordinance shall be deemed delivered when deposited in the United States mail, postage prepaid except as otherwise specified.
B. Filing. An original and four (4) copies of all such applications, motions, petitions, briefs, complaints, responses to complaints, plans, study proposals, reports and other required submissions shall be filed with the Board by delivery to the Town Office, 99 Main Street, Jay, Maine, 04239 by 4:00 p.m. local time on or before the day the submission is due unless otherwise specified in a Board order. The Board may order additional copies of particular documents to be filed.
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 Ordinance, the Board shall assure that all orders, decisions, notices and other papers issued by the Board are served within seven (7) days of issuance upon all parties to the proceeding by ordinary mail, hand delivery or by private express courier except for subpoenas or unless otherwise provided by this Ordinance, and provided that a Board decision on an application pursuant to Section 3-105(D) and on a petition for reconsideration pursuant to Section 3-113(A) shall be served upon the applicant and intervenors by certified mail, return receipt requested, by hand delivery or by private express courier.
E. Facsimile and Electronic Mail Not Accepted. The Board shall not accept facsimile or electronic mail as a substitute for filing of an original document. The Board will accept facsimile for 48 hour or less incident reports.
Eighth, Sec. 2. Tenth, Sec. 17. (formerly § _-115) Thirteenth, Sec. 32. Seventeenth, Sec. 34 and 35.
§3-118 COMPUTATION AND ENLARGEMENT OF TIME
In computing any period of time provided by this Ordinance, 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 Ordinance 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.
(formerly § _-116) Thirteenth, Sec. 33.
§3-119 ORDERS AND DECISIONS EFFECTIVE
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.
Tenth, Sec. 18. (formerly § _-117) Thirteenth, Sec. 34.
§3-120 REVOCATION, MODIFICATION OR SUSPENSION OF PERMITS
Any person, 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 Chapter 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:
A. The permit holder has violated any condition of the permit, Board order or this Ordinance;
B. The permit holder has obtained a permit by misrepresenting or failing to disclose fully all relevant facts;
C. The permitted activity poses a threat to human health or the environment;
D. The permit fails to include any standard or limitation legally required on the date of issuance;
E. Modification or amendment of a permit is necessary to ensure compliance with applicable standards, limits or requirements; or
F. There has been a change in any condition or circumstance that requires revocation, suspension or a temporary or permanent modification of the terms of the permit.
Seventeenth, Sec. 36. Eighteenth, Sec. 10 and 11.
CHAPTER 4A
Chapter 4, as enacted on May 21, 1988 and as amended by First, Sixth, Eighth, Tenth, and Eleventh Ordinances, repealed and replaced by Thirteenth Ordinance, Sec. 35.
PERMIT ADMINISTRATION AND INVESTIGATIONS Section §4A-101 Permit Administration §4A-102 Investigations §4A-103 Emergencies
§4A-101 PERMIT ADMINISTRATION
A. General. The Code Enforcement Officer shall generally oversee the administration of all permits issued by the Board.
B. Compliance Facilitation. Whenever it appears to the Code Enforcement Officer that there is or may be any irregularity in the administration of, or compliance with, any permit issued by the Board, the Code Enforcement Officer may contact the permittee and may attempt to secure satisfactory permit administration and compliance. The Code Enforcement Officer is authorized, but not required, to meet at reasonable times and places with representatives of the permittee to discuss issues or problems relating to administration of, or compliance with, any permit. Notwithstanding any effort undertaken by the Code Enforcement Officer pursuant to this section, responsibility for compliance with the permittee's obligations under any permit remains with the permittee.
C. Compliance Order. Whenever the Code Enforcement Officer is informed and believes that any permittee is operating out of compliance with any permit issued by the Board, the Code Enforcement Officer may issue a compliance order directing the permittee to do or not to do whatever the Code Enforcement Officer reasonably believes to be necessary to assure compliance with a permit. On receipt of any compliance Order, the permittee shall within (3) days advise the Code Enforcement Officer in writing whether it acquiesces to the compliance order or whether it will seek review by the Board.
D. Board Review. Whenever a permittee applies for Board review of a compliance order, the Board shall at its next regularly scheduled meeting, except in the case of emergencies, conduct an informal hearing and the Board may either affirm, modify or revoke the compliance order on the basis of that hearing.
E. Report to Board. From time to time, the Code Enforcement Officer may brief the Board with respect to any issues of permit administration or compliance including any activities of the Code Enforcement Officer or any permittee under any subsection hereof. F. Other Proceedings. The provisions of this section are supplemental to, and independent from, all other provisions of Chapter 4A and Chapter 4B. Nothing said or done by or on behalf of the Code Enforcement Officer in implementation of this section shall preclude investigation or enforcement under other provisions of this Ordinance. Nothing said or done by any permit holder in response to any initiative by the Code Enforcement Officer under this section shall constitute an admission of non-compliance. Full compliance by a permit holder with the express terms of a compliance order is a defense in any enforcement proceeding but only to the extent that the enforcement complaint directly relates to the specific subject matter of the compliance order. In the penalty phase of any enforcement proceeding under Chapter 4B, evidence of the permit holder’s conduct under this section may be offered as grounds for either mitigation or enhancement of any penalty otherwise applicable.
Fourteenth, Sec. 11. Seventeenth, Sec. 37.
§4A-102 INVESTIGATIONS
A. The Code Enforcement Officer may at any time conduct an investigation., On receipt of a written complaint signed by ten or more persons residing or conducting business in the Town of Jay, and alleging violation of this Ordinance or violation of any permit, approval or order of the Board, the allegations of the complaint shall be investigated by the Code Enforcement Officer.
B. In all cases not within the provisions of Section 4A-103, the investigation shall be conducted in a reasonably expeditious manner.
C. After an investigation under this section has been completed, the Code Enforcement Officer shall report to the Environmental Enforcement Counsel. The Environmental Enforcement Counsel may commence an enforcement proceeding in accordance with the provisions of Chapter 4B of this Ordinance. If the Enviro |