An Act To Amend Certain Laws Administered by the Department of Environmental Protection
Maine Legislature, Session 121, LD 1547
Committee: Natural Resources
Sponsors: KOFFMAN, MARTIN
Amends: 12 MRSA §9325, 38 MRSA §341-G, 38 MRSA §342, 38 MRSA §347-A, 38 MRSA §464, 38 MRSA §480-Z, 38 MRSA §568-A, 38 MRSA §568-B, 38 MRSA §569-A, 38 MRSA §570-A, 38 MRSA §570-B, 38 MRSA §570-K

Legislative Document 
No. 1547 
H.P.I133 
House of Representatives, April 10,2003 
An Act To Amend Certain Laws Administered by the Department 
of Environmental Protection 
Submitted by the Department of Environmental Protection pursuant to Joint Rule 204. 
Reference to the Committee on Natural Resources suggested and ordered printed. 
Presented by Representative KOFFMAN of Bar Harbor. 
Cosponsored by Senator MARTIN of Aroostook. 
Printed on =ycled paper 
!rl~/J1.11l~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 12 MRSA §9325, sub-§I, ,E, as amended by PL 2001, c. 
626, §6, is further amended to read: 
E. 
Out-of-door burning of wood wastes as defined in section 
9324, subsection 7-A and painted and unpainted wood from 
construction and demolition debris in the open or in an 
incinerator with a primary chamber volume no greater than 
cubic feet or 1,000 gallons that is not licensed by the 
Department of Environmental Protection; 
Sec. 2. 38 MRSA §341-G, first" as amended by PL 1997, c. 364, 
§18, is further amended to read: 
There is established the Board of Environmental Protection 
Fund to be used by the board as a nonlapsing fund to carry out 
its duties under this Title. 
Notwithstanding any other provision 
of law, 
the funds identified in subsection 1 shall transfer 
annually to the Board of Environmental Protection Fund in an 
amount not to exceed $as{hQQQ $325,000. 
Money in the Board of 
Environmental Protection Fund may only be expended in accordance 
with allocations approved by the Legislature. 
Sec. 3. 38 MRSA §342, sub-§7, as amended by PL 1999, c. 127, 
Pt. A, §53, is further amended to read: 
1. 
Representation in court. 
The commissioner may authorize 
licensed Maine attorneys with active bar status who are employees 
of the department and certified employees of the department to 
serve civil process and represent the department in District 
Court in the prosecution of violations of those laws enforced by 
the department and set forth in Title 4, section 152, subsection 
6-A. 
Licensed 
Maine 
attorneys 
do 
not 
need 
to 
file 
the 
certification referred to in the Maine Rules of Civil Procedure, 
Rule 80K(h). 
Certification of 
~hese nonattorney employees must 
be provided as under Title 30-A, section 4453. 
Sec. 4. 38 MRSA §342, sub-§14, as enacted by PL 1991, c. 804, 
Pt. A, §2, is repealed. 
Sec. 5. 38 MRSA §347-A, sub-§I, ,A, as repealed and replaced 
by PL 1993, c. 204, §l, is amended to read: 
A. 
Whenever 
it 
appears 
to 
the 
commissioner, 
after 
investigation, that there is or has been a violation of this 
Title, of rules adopted under this Title or of the terms or 
conditions of a license, permit or order issued by the board 
or 
the 
commissioner, 
the 
commissioner 
may 
initiate 
an 
Page l-LR1860(1) 
• 
• 
• 
• 
enforcement action by taking one or more of the following 
steps: 
(1) 
Resolving the violation through an administrative 
consent agreement pursuant to subsection 4, signed by 
the violator and approved by the board and the Attorney 
General; 
(2) 
Referring the violation to the Attorney General 
for civil or criminal prosecution; 
(3) 
Scheduling and holding an enforcement hearing on 
the alleged violation pursuant to subsection 2; or 
(4) 
With the prior approval of the Attorney General, 
iBit,iat,iB~ 
commencing 
a 
civil 
action 
pursuant 
to 
section 342, subsection 7 and the Maine Rules of Civil 
Procedure, Rule 3. 
Sec. 6. 38 MRS A §349, sub-§9, as repealed and replaced by PL 
1997, c. 794, Pt. A, §9, is amended to read: 
9. 
Unavoidable malfunctions. 
The following considerations 
apply to violations resulting from unavoidable malfunctions. 
A. 
The commissioner may exempt from civil penalty an air 
emission in excess of license limitations if the emission 
occurs during start-up or shutdown or results exclusively 
from an unavoidable malfunction entirely beyond the control 
of the licensee and the licensee has taken all reasonable 
steps 
to 
minimize 
or 
prevent 
any 
emission 
and 
takes 
corrective action as soon as possible. 
There may be no 
exemption if the malfunction is caused, entirely or in part, 
by poor maintenance, careless operation, poor design or any 
other 
reasonably 
preventable 
condition 
or 
preventable 
equipment breakdown. 
The burden of proof is on the licensee 
seeking the exemption under this subsection. 
In the event 
of an unavoidable malfunction, the licensee must notify the 
commissioner in writing within 48 hours and submit a written 
report, 
together 
with 
any 
exemption 
requests, 
to 
the 
department on 
a quarterly basis. 
,*:ae-~i-&s-i~--6aa;U: 
aBB~a~~Y--FepeFt,--~-~~--~~--~~~-~~~~~-e£--t,:ae 
be~is~at,~pe--~~--j~~i£Qi€~ieR--~¥&F--~~~--pesa~pee 
ffiat,t,eps-wit,:a-pe~aPQ-t,a-t,:ae-eHepeise-al-t,:ais-a~t,:aapit,YT 
B. 
An affirmative defense is established for a wastewater 
discharge in excess of license limitations if the discharge 
results 
exclusively 
from 
unintentional 
and 
temporary 
noncompliance with teChnology-based limitations because of 
factors 
entirely 
beyond 
the 
reasonable 
control 
of 
the 
licensee and the licensee has taken all reasonable steps to 
m~n~m~ze or prevent 
any discharge 
and 
takes 
corrective 
action as soon as possible. 
There is not an affirmative 
defense if the malfunction is caused, entirely or in part, 
by 
operational 
error, 
improperly 
designed 
treatment 
facilities, 
inadequate 
treatment 
facilities, 
lack 
of 
preventive maintenance or careless or improper operation. 
The 
burden 
of 
proof 
is 
on 
the 
licensee 
seeking 
the 
affirmative defense under this subsection. 
In the event of 
an unavoidable malfunction, the licensee must notify the 
commissioner orally within 24 hours, and in writing within 5 
days. 
~he-~~--shall-~~~-~~~-~e-~~-~eiB~ 
s~aBaiB~-~1t~~-~--~he-~~bat~~-~~~-jQFisaie~ieB 
eveF-Ba~Q~aJ-~e5~~£e-~~~~~~~~~~-~-~&&-eHeFeise-eE 
~his-aQ~heFi~y ... 
Sec. 7. 38 MRSA §464, sub-§3, 1fB, as enacted by PL 1985, c. 
698, §15, is amended to read: 
B. 
The board shall, from time to time, but at least once 
every 
~ .1 years, hold public hearings for the purpose of 
reviewing 
the 
water 
quality 
classification 
system 
and 
related standards and, as appropriate, recommending changes 
in the standards to the Legislature. 
Sec. 8. 38 MRSA §480-Z, sub-§3, as enacted by PL 1997, c. 101, 
§1 and affected by §2, is amended to read: 
3. 
Compensation fee 
program. 
The 
department 
sha±± 
may 
develop a compensation fee program in consultation with the State 
Planning Office, the United States Army Corps of Engineers and 
state and federal resource agencies, including the United States 
Fish and Wildlife Service and the United States Environmental 
Protection Agency. 
A. 
The 
program 
mQs~ ~ includeT--a~--a--miBimQffiT the 
following: 
(I) Identification of wetland management priorities on 
a watershed basis; 
(2) 
Identification of 
the 
types 
of wetland 
losses 
eligible for compensation under this subsection; 
(3) Standards for compensation fee projects; 
(4) 
Calculation of 
compensation 
fees 
based 
on 
the 
functions and values of the affected wetlands and the 
cost of compensation, taking into account the potential 
• 
higher 
cost 
of 
compensation 
when 
implemented at a later date; and 
a 
project 
is 
(5) Methods to evaluate the long-term effectiveness of 
compensation 
fee 
projects 
implemented 
under 
this 
sUbsection in meeting the wetland management priorities 
identified pursuant to subparagraph (1). 
B. 
Any compensation fee 
IR~S~ ~ 
be paid into a wetlands 
compensation fund established by the department as provided 
in subparagraph (1) or to an organization authorized by the 
department as provided in s~9paF~Fapa&-~l}-aRe subparagraph 
(2). 
A compensation project funded in whole or in part from 
compensation fees must be approved by the department. 
(1) 
The 
department 
may 
establish 
a 
wetlands 
compensation 
fund 
for 
the 
purpose 
of 
rece1v1ng 
compensation fees, 
grants and other related income. 
The wetlands compensation fund must be a fund dedicated 
to payment of costs and related expenses of wetland 
restoration, 
enhancement, 
preservation 
and 
creation 
projects. 
The department may make payments from the 
fund consistent with the purpose of the fund. 
Income 
received under this subsection must be deposited with 
the State Treasurer to the credit of the wetlands 
compensation fund and may be invested as provided by 
law. 
Interest on these investments must be credited to 
the wetlands compensation fund. 
(2) 
The 
department 
may 
enter 
into 
an 
enforceable, 
written 
agreement 
with 
a 
public, 
quasi-public 
or 
municipal 
organization 
or 
a 
private, 
nonprofit 
organization 
eeei.eat:ed--t.a 
for 
the 
protection 
of 
wetlands and other natural areas 
~af'--t-he--fH:l-£-pese-s--a~ 
f'eee~v~R'J. 
Such an organization must demonstrate the 
ability to receive compensation fees, 
a9IRiRis~eFi.R~-t.ae 
administer a wetlands compensation fund and 
eRs~f'iR'J 
ensure 
that 
compensation 
projects 
are 
implemented 
consistent with 
~ae local, regional or state wetland 
management priorities 
ieeRt.i~iae-~--t-he--eepaf't.lReRt. for 
the watershed in which the project is located. 
If 
compensation 
fees 
are 
provided 
to 
an 
authorized 
organization, the organization shall maintain records 
of expenditures and provide an annual summary report t.a 
as 
re~uested by the department. 
If the authorized 
agency is a state agency other than the department, the 
agency shall establish a fund meeting the requirements 
specified in subparagraph (1). 
If the organization 
does not perform in accordance with this subsection or 
with the requirements of the written agreement, 
the 
department may revoke the organization' s authority to 
conduct activities in accordance with this subsection. 
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fQBas-~~~~~-the-we~laBa6-~~~-~-mQst 
ae-p~9v~aea-t9-the-aepa~tmeBtT 
Rules adopted pursuant to this subsection are routine technical 
rules under Title 5, chapter 375, subchapter Il-A 2-A. 
Sec. 9. 38 MRSA §480-Z, sub-§§5 and 6, as amended by PL 2001, 
c. 232, §17, are repealed. 
Sec. 10. 38 MRSA §568-A, sub-§7, as enacted by PL 1997, c. 
374, §5, is amended to read: 
7. 
Repeal date. 
This section is repealed December 31, 699§ 
2010. 
Sec. 11. 38 MRSA §568-B, sub-§3 is enacted to read: 
3. 
Repeal date. 
This section is repealed December 31, 2010. 
Sec. 12. 38 MRSA §569-A, sub-§5, ,A, as amended by PL 1999, c. 
505, Pt. A, §12, is further amended to read: 
A. 
YBtil-~~-~~r-~~r-a A fee is assessed of 38¢ per 
barrel of gasoline; 
19¢ per barrel of refined petroleum 
products and their by-products other than gasoline, liquid 
asphalt and #6 fuel oil, including #2 fuel oil, kerosene, 
jet fuel and diesel fuel; and 4¢ per barrel of #6 fuel oil. 
The fee is assessed on the first transfer of those products 
by oil terminal facility licensees, as defined in section 
542, subsection 7, and on a person required to register with 
the commissioner under section 545-B who first transports 
oil into the State. 
The fee is not assessed on petroleum 
products that are exported from this State. 
These fees must 
be paid monthly on the basis of records certified to the 
commissioner. 
This subsection does not apply to waste oil 
transported into the State in any motor vehicle that has a 
valid 
license 
issued 
by 
the 
department 
for 
the 
transportation of waste oil pursuant to section 1319-0 and 
is subject to fees established under section 1319-1. 
Sec. 13. 38 MRS A §569-A, sub-§ 13, as amended by PL 1997, c. 
374, §7, is further amended to read: 
13. 
Repeal date. 
699§ ZQl.Q.. 
This section is repealed December 31, 
Sec. 14. 38 MRS A §569-B, sub-§8, as amended by PL 1997, c. 
374, §9, is further amended to read: 
8. 
Effective date. 
This section takes effect December 31, 
6999 2..QlQ. 
Sec. 15. 38 MRSA §570-A, 2nd,., as amended by PL 1997, c. 374, 
§10, is further amended to read: 
This section is repealed December 31, 
~99§ 2..QlQ. 
Sec. 16. 38 MRSA §570-B, 2nd,., as amended by PL 1997, c. 374, 
§11, is further amended to read: 
This section is repealed December 31, 
~gg§ 2..QlQ. 
Sec. 17. 38 MRS A §570-I, 2nd,., as amended by PL 1997, c. 374, 
§12, is further amended to read: 
This section takes effect December 31, 
~gg9 2010. 
Sec. 18. 38 MRS A §570-J, 2nd,., as amended by PL 1997, c. 374, 
§13, is further amended to read: 
This section is effective December 31, 699§ 2010. 
Sec. 19. 38 MRSA §570-K, sub-§5, as enacted by PL 2001, c. 
605, §3, is amended to read: 
5. 
Spill prevention 
and 
control. 
An 
aboveground 
oil 
storage facility used in the marketing and distribution of oil to 
others 
must 
be 
operated 
in 
compliance 
with 
the 
federal 
requirements 
for 
the preparation and implementation of spill 
prevention control and countermeasure plans under 40 
Code of 
Federal Regulations, 
f~991} in effect on August 16, 2002. 
Failure to comply with· those federal requirements in accordance 
with 
the 
deadlines 
set 
by 
the 
United 
States 
Environmental 
Protection Agency constitutes a violation of this Title. 
If the 
department believes that a facility's plan does not satisfy those 
federal requirements, 
the department shall request an 
op~n~on 
from the United States Environmental Protection Agency as to the 
legal adequacy of the plan and any amendment necessary to bring 
the facility into compliance with those federal requirements. 
The department shall prepare educational and technical materials 
for 
use 
by 
facilities 
affected 
by 
this 
subsection. 
This 
subsection is repealed October 1, 2005. 
Sec. 20. PL 1991, c. 817, §28, as amended by PL 1997, c. 374, 
§15, is further amended to read: 
Sec. 28. Effective date. 
That section of this Act that amends 
the 
Maine 
Revised 
Statutes, 
Title 
38, 
section 
570, 
first 
paragraph, as repealed and replaced by Public Law 1987, chapter 
735, section 72, takes effect December 31, 
~QQ9 2010. 
Sec. 21. PL 1991, c. 817, §30, as amended by PL 1997, c. 374, 
§16, is further amended to read: 
Sec. 30. Effective date. 
That section of this Act that amends 
the 
Maine 
Revised 
Statutes, 
Title 
38, 
section 
570, 
first 
paragraph, as amended by Public Law 1989, chapter 865, section 17 
and affected by sections 24 and 25, is repealed December 31, 6QQ§ 
2010. 
SUMMARY 
This bill corrects an inadvertent error and inconsistency 
created last session when the open burning statute was amended. 
It increases 
the 
cap 
on allocations 
for 
the 
Board of 
Environmental 
Protection 
Fund 
within 
the 
Department 
of 
Environmental 
Protection 
from 
$250,000 
annually 
to 
$325,000 
annually to meet rising personnel salary and benefit costs for 
the next several years, including the filling of the Executive 
Analyst position in the past biennium, and a rise in operating 
costs, due to a modest increase in general workload from broader 
public involvement in the licensing and appeal processes, which 
has resulted in more frequent meetings of the board. 
The last 
increase in the allocation cap was in 1997. 
It 
clarifies 
the 
statute 
governing 
the 
Department 
of 
Environmental 
Protection's 
enforcement 
authority. 
The 
Maine 
Rules of Civil Procedure, 
Rule 80K allows the department and 
municipalities to prosecute environmental violations in District 
Court. 
Municipalities consistently have 80K actions commenced by 
both certified nonlawyer 
code 
enforcement officers 
and 
town 
attorneys. 
The department has historically not had employees who 
are also licensed active members of the bar file cases on the 
department's behalf since the rule is ambiguous as to whether 
such a practice is appropriate. 
This change in the law makes 
clear 
that 
a 
department 
practice 
consistent 
with 
current 
municipal practices is appropriate. 
It repeals the enabling language for the requirement of 
priority studies because the tasks described in the statute have 
been completed and the project is no longer active. 
It clarifies that an action in court can not be determined 
to start at any point prior to compliance with court rules. 
The 
Maine Rules of Civil Procedure, Rule 80K allows the department 
and 
municipalities 
to 
prosecute 
environmental 
violations 
in 
District Court. 
There is ambiguity between the Maine Revised 
Statutes, Title 38, section 347-11. and the Maine Rules of Civil 
Procedure, Rule 3 as to the point in time when an action in 
District Court should be considered to have been initiated. 
It repeals 
the 
requirement 
of 
annual 
reporting 
to 
the 
Legislature by the Commissioner of Environmental Protection on 
unavoidable malfunctions. 
It amends the statutes to change a hearing and reporting 
requirement concerning classification standards from once every 3 
years to once every 4 years. 
It amends the statutes to make the creation of a wetland 
compensation 
fee 
program 
optional 
rather 
than 
mandatory, 
specifically adds municipalities to the types of organizations 
that may create a wetland compensation fee program, deletes the 
mandatory annual reporting requirement for any such program and 
deletes the requirement that funds from such a program are turned 
over to the department if the department's authorization of that 
program is revoked. 
It repeals 
the 
requirement 
of 
annual 
reporting to 
the 
Legislature on the wetlands compensation fee program. 
It 
repeals 
the 
provision 
that 
repeals 
the 
compensation fee program effective October 15, 2003. 
wetland 
It makes the changes necessary to extend the sunset date for 
coverage of oil spill cleanup costs by the Ground Water Oil 
Clean-up Fund. 
The fund covers cleanup costs for spills from 
aboveground or underground oil tanks through December 31, 2005, 
at which point fund coverage, also called the fund insurance 
program, is repealed under current law. 
This bill extends the 
fund insurance program by 5 years to December 31, 2010. 
It incorporates 
by 
reference the latest 
federal 
regulations governing spill prevention 
aboveground oil storage facilities. 
The purpose 
is to ensure state and federal requirements are 
each other. 
version of 
the 
and control at 
of this change 
consistent with