An Act To Protect Shellfish Waters and Shellfish Resources from Coastal Pollution
Maine Legislature, Session 123, LD 2160
Committee Amendment CA_A_H822 (House)
Amends: 30-A MRSA §3428, 30-A MRSA §4216, 30-A MRSA §4221, 38 MRSA §342, 38 MRSA §424-A

COMMITTEE AMENDMENT" Ii" to H.P. 1535, L.D. 2160, Bill, "An Act To 
Protect Shellfish Waters and Shellfish Resources from Coastal Pollution" 
Amend the bill by adding after the title and before the enacting clause the following: 
'Mandate preamble. This measure requires one or more local units of government 
to expand or modify activities so as to necessitate additional expenditures from local 
revenues but does not provide funding for at least 90% of those expenditures. Pursuant to 
the Constitution of Maine, Article IX, Section 21, 2/3 of all of the members elected to 
each House have determined it necessary to enact this measure.' 
Amend the bill by striking out sections I, 2 and 3 and inserting the following: 
'Sec. 1. 30-A MRSA §3428, as enacted by PL 1987, c. 737, Pt. A, §2 and Pt. C, 
§ I 06 and amended by PL 1989, c. 6; c. 9, §2; and c. 104, Pt. C, §§8 and 10, is further 
amended to read: 
§3428. Malfunctioning domestic waste water disposal units; abatement of nuisance 
Malfunctioning waste water disposal units, including septic tanks, cesspools, cisterns, 
dry wells, drainage beds, drains, sewer lines and pipes and the like, have become a 
menace to the health and general welfare of the citizens of this State and are declared to 
be a nuisance. 
1. 
Abatement procedure. 
Upon complaint of any person resulting in 
documentation of a malfunctioning waste water disposal unit or on their own information, 
the municipal officers shall serve an order to remedy a malfunctioning waste water 
disposal unit upon the owner or occupant of any premises within that municipality wffl6.I:t 
that has such a malfunctioning unit. 
2. Content of order. The order sfl.a» must be addressed to the owner of the premises 
and must contain: 
A. The date; 
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COMMITTEE AMENDMENT "A "to H.P. 1535, L.D. 2160 
B. The fact of the malfunctioning waste water disposal unit; 
C. A notice to remedy the nuisance within 10 days of service of the order; and 
D. The signatures of the municipal officers. 
If service is to be made I:IpOl,! a teAaAt or OCCl:lpaAt iA possessioA, the order ml:lst be 
addressed to that perSOA iA additioA to the OVl'Aer. The municipal officers may allow the 
owner of the premises to request an extension of the 10-day period for no longer than an 
additional 20 days and may explain how to request an extension in the order. 
The 
municipal officers or their agents may approve an extension if it is reasonably necessary 
for and likely to result in remediation of the nuisance. 
3. 
Service and return of service. 
One of the municipal officers or a law 
enforcement officer shall serve the order personally upon the owner, tenant or occupant in 
possession. The server shall make and file a return of service indicating the method used 
and the person served. 
4. Abatement. If the nuisance is not abated within the 10-day perioa- of such period 
up to but not exceeding the additional 20 days as allowed by the municipal officers under 
subsection 2, the municipal officers or their agents may enter the premises and have the 
malfunction adequately remedied. To recover any actual and direct expenses, including 
reasonable attomey attorney's fees if the municipality is the prevailing party, incurred by 
the municipality in the abatement of such nuisances, the municipality shall: 
A. File a civil action against the owner. The costs, including reasonable attorney 
fees, to create and prosecute an action to collect expenses following such a civil 
complaint, shall also be recovered from the owners; or 
B. Assess a special tax against the land on which the waste water disposal unit is 
located for the amount of the expenses. This amount shall be included in the next 
annual warrant to the tax collector of the municipality for collection in the same 
manner as other state, county and municipal taxes are collected. 
Interest as 
determined by the municipality pursuant to Title 36, section 505, in the year in which 
the special tax is assessed, shall accrue on all unpaid balances of any special tax 
beginning on the 60th day after the day of commitment of the special tax to the 
collector. The interest shall be added to and become part of the tax. 
Sec. 2. 30-A MRSA §4216, as enacted by PL 1987, c. 737, Pt. A, §2 and Pt. C, 
§ 1 06 and amended by PL 1989, c. 6 and c. 9, §2 and repealed and replaced by c. 104, Pt. 
A, §43 and Pt. C, §§8 and 10, is repealed and the following enacted in its place: 
§4216. Transfers of shoreland property 
1. Shoreland areas. Any person transferring property on which a subsurface waste 
water disposal system is located within a shoreland area, as described in Title 38, section 
435, shall provide the transferee with a written statement by the transferor as to whether 
the system has malfunctioned during the 180 days preceding the date of transfer. 
2. Coastal shoreland areas. In addition to the requirements of subsection I, the 
following provisions apply to the transfer of property within a coastal shoreland area as 
described in Title 38, section 435. 
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COMMITTEE AMENDMENT"~ "to H.P. 1535, L.D. 2160 
A. A person purchasing property on which a subsurface waste water disposal system 
is located within a coastal shoreland area, as described in Title 38, section 435, shall 
prior to purchase have the system inspected by a person certified by the department 
except that if it is impossible due to weather conditions to perform an inspection of 
the system prior to the purchase, the inspection must be performed within 9 months 
after transfer of the property. 
If the inspection finds that the system is 
malfunctioning, the system must be repaired or replaced within one year after transfer 
of the property. For purposes of this paragraph only, indications of a malfunctioning 
system are limited to the indications specified in the definition of "malfunctioning 
system" in the department's rules regulating subsurface waste water disposal that are 
in effect on the effective date of this paragraph. 
B. 
A subsurface waste water disposal system that has been installed pursuant to 
section 4211 and rules adopted under Title 22, section 42 within 3 years prior to the 
closing date of the transfer of property is not subject to the inspection requirements of 
paragraph A. 
C. 
If the seller of the shore land property has a written inspection report for an 
inspection of the subsurface waste water disposal system that was performed within 3 
years prior to the date of the transfer of property by a person certified by the 
department, then the seller shall provide the inspection results to the purchaser, and 
the purchaser is not required to have the system inspected pursuant to paragraph A. 
D. The inspection described in paragraph A is not required if the purchaser certifies 
to the local plumbing inspector that the purchaser will replace the subsurface waste 
water disposal system within one year of the transfer of property. 
Sec. 3. 30-A MRSA §4221, sub-§3, ~, as enacted by PL 1987, c. 737, Pt. A, §2 
and Pt. C, § 1 06 and amended by PL 1989, c. 6; c. 9, §2; and c. 104, Pt. C, §§8 and 10, is 
further amended to read: 
F. 
Perform other duties as provided by municipal ordinance; aOO 
Sec. 4. 30-A MRSA §4221, sub-§3, ~G, as enacted by PL 1987, c. 737, Pt. A, 
§2 and Pt. C, § 1 06 and amended by PL 1989, c. 6; c. 9, §2; and c. 104, Pt. C, §§8 and 10, 
is further amended to read: 
G. 
Investigate complaints of alleged violations relating to plumbing or subsurface 
waste water disposal and take appropriate action as specified by the department by 
rule in the State of Maine Enforcement Manual, Procedures for Correcting Violations 
to the Subsurface \Vaste \Vater Disposal and Plumbing Rules. department's 
enforcement manual for subsurface waste water disposal and plumbing rules; and 
Sec. 5. 30-A MRS A §4221, sub-§3, ~ 
is enacted to read: 
H. 
Accompany staff of the Department of Environmental Protection or the 
department in the conduct of a sanitary survey intended to identify potentially failing 
subsurface waste water disposal systems affecting shellfish harvesting areas when 
requested by either agency. 
Sec. 6. 30-A MRS A §4452, sub-§5, ~, as enacted by PL 1989, c. 104, Pt. A, 
§45 and Pt. C, § 10, is amended to read: 
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COMMITTEE AMENDMENT" A" to H.P. 1535, L.D. 2160 
M. 
Local ordinances regarding malfunctioning subsurface waste water disposal 
systems pursuant to section 3428 and laws regarding malfunctioning subsurface 
waste water disposal systems pursuant to Title 38, section 424-A; 
Sec. 7. 38 MRSA §342, sub-§7, as amended by PL 2003, c. 245, §3, is further 
amended to read: 
7. 
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. The commissioner may authorize 
licensed Maine attorneys with active bar status who are employees of the department and 
certified employees of the department to represent a municipality in an action to obtain an 
administrative search warrant to allow entry of a local plumbing inspector onto property 
without the consent of the property owner in order to inspect a subsurface waste water 
disposal system in an area designated by the department as provided in section 424-A, 
subsection 3, paragraph 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 
nonattorney employees must be provided as under Title 30-A, section 4453. 
Sec. 8. 38 MRSA §424-A is enacted to read: 
§424-A. Coordination for addressing water quality problems related to subsurface 
waste water disposal systems in shellfish growing areas. 
1. Definitions. For purposes of this section, the following terms have the following 
meanings: 
A. "System" means a subsurface waste water disposal system; 
B. 
"Local plumbing inspector" means a plumbing inspector for the municipality 
where the system is located; 
C. "Municipality" means the municipality where the system is located; and 
D. "Certified inspector" means a person certified pursuant to rules adopted by the 
Department of Health and Human Services to inspect systems. 
2. Notification to municipality. If the department or the Department of Marine 
Resources identifies a violation of a bacteria or toxics standard that is reasonably believed 
to have resulted in whole or in part from one or more malfunctioning systems and is 
contributing to closure of a shellfish area, the agency shall notify the municipality. 
3. Inspection. If the department or the Department of Marine Resources has notified 
a municipality pursuant to subsection 2, and by mutual agreement inspections are not to 
be conducted by the department, the Department of Marine Resources or the 
municipality, the system or systems must be inspected and an abatement order issued and 
enforced according to the procedures in this subsection. 
A. The department shall designate an area suspected of containing one or more 
malfunctioning systems and inform the municipality of the designation. 
The 
municipality shall provide the department sufficient information concerning property 
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COMMITTEE AMENDMENT" A" to H.P. 1535, L.D. 2160 
ownership within the designated area to enable the department to send a letter to the 
owner of each property containing a system within the designated area. 
B. The department shall notify each owner of property containing a system within 
the designated area that the system is suspected of contributing to water quality 
problems and must be inspected to determine compliance with the rules regulating 
subsurface waste water disposal adopted by the Department of Health and Human 
Services. 
C. Within 60 days of notification by the department pursuant to paragraph B or 
within a lesser time period as provided in the notification of the department, the 
property owner shall: 
(1) Submit to the department results of an inspection by a certified inspector that 
has occurred within the last 12 months pursuant to requirements in Title 30-A, 
section 4216; 
(2) Provide evidence to the department that the system was installed or repaired 
within the last 12 months; or 
(3) Provide for an inspection by a certified inspector. The property owner shall 
notify the department of the results of the inspection on a form provided by the 
department and signed by the certified inspector. 
The inspection must be 
conducted at a time of year when the system is operating under representative 
conditions of use for the property. If representative conditions of use will not 
occur within the period specified by the department, such as if the residence is 
seasonal and not currently in use, the property owner may request an extension 
from the department during the inspection period and the department may grant 
an extension. 
D. If an inspection is required pursuant to paragraph C, subsection (3), the provisions 
of this paragraph apply. 
(1) It is the responsibility of the property owner to pay for inspection of the 
system or systems by a certified inspector. 
(2) The local plumbing inspector is not required to conduct the inspection. 
(3) If a property owner is unwilling or unable to provide for an inspection, the 
municipality shall contract with an independent certified inspector. 
The 
municipality may assess a fee or a special tax against the land on which the 
system is located for the amount necessary to hire the certified inspector for the 
system. 
The amount of the special tax must be included in the next annual 
warrant to the tax collector of the municipality for collection in the same manner 
as other state, county and municipal taxes are collected. Interest as determined 
by the municipality pursuant to Title 36, section 505, in the year in which the 
special tax is assessed, must accrue on all unpaid balances of any special tax 
beginning on the 60th day after the day of commitment of the special tax to the 
collector. The interest must be added to and become part of the tax. When 
determining whether or not to assess a fee or special tax pursuant to this 
paragraph the municipality shall consider the availability of municipal resources. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT" A" to H.P. 1535, L.D. 2160 
4. 
Abatement orders. 
If a system is determined to be malfunctioning, the 
municipality shall issue an abatement order pursuant to Title 30-A, section 3428 to the 
owner of the property and send a copy of the abatement order to the department. 
5. Enforcement of abatement order. This section is enforced primarily at the local 
level pursuant to Title 30-A, section 4452. 
In addition to and in coordination with 
enforcement of the abatement order by the municipality under subsection 4, the 
department and the Department of Health and Human Services may enforce an abatement 
order. 
6. Rules. The department in coordination with the Department of Health and Human 
Services and the Department of Marine Resources may adopt rules to implement this 
section. Rules adopted pursuant to this subsection are routine technical rules as defined 
in Title 5, chapter 375, subchapter 2-A.' 
Amend the bill in section 4 in the 3rd line (page 2, line 25 in L.D.) by striking out the 
following: "shall" and inserting the following: 'may' 
Amend the bill in section 4 in the 7th line (page 2, line 29 in L.D.) by striking out the 
following: "must" and inserting the following: 'may' 
Amend the bill in section 4 in the 8th line (page 2, line 30 in L.D.) by striking out the 
following: "the rules to be" and inserting the following: 'rules' 
Amend the bill by relettering or renumbering any nonconsecutive Part letter or 
section number to read consecutively. 
SUMMARY 
This amendment replaces the provisions in the bill regarding notice and inspection 
requirements of subsurface waste water disposal systems upon the transfer of property in 
the shoreland zone. It also clarifies the provisions in the bill that create a process for 
coordinating response to water quality problems that are related to subsurface waste water 
disposal systems in shellfish growing areas. It also gives to the Department of Health and 
Human Services, in coordination with the Department of Marine Resources and the 
Department of Environmental Protection, discretion regarding the adoption of rules 
establishing certification requirements for subsurface waste water disposal system 
inspectors. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 03/21/08 Mac 
LD 2160 
LR 3048(02) 
An Act To Protect Shellfish Waters and Shellfish Resources from Coastal Pollution 
Fiscal Note for Bill as Amended by Committee Amendment" A" 
Committee: Natural Resources 
Fiscal Note Required: Yes 
Fiscal Note 
State Mandate - Exempted 
State Mandates 
Required Activity 
Unit Affected 
Costs 
This bill requires local plumbing inspectors to assist the Department of 
Municipality 
Insignificant 
Environmental Protection and the Department of Marine Resources in identifying 
failing septic systems affecting shellfish harvesting areas, provide information on 
property ownership within certain designated areas and to provide for an inspection 
by a certified independent inspector. Pursuant to the Mandate Preamble, the two 
thirds vote of all members elected to each House exempts the State from the 
constitutional requirement to fund 90% of the additional local costs. 
Fiscal Detail and Notes 
Additional costs to the Department of Environmental Protection and the Department of Marine Resources can be 
absorbed within existing budgeted resources. 
LR3048(02) - Fiscal Note - Page 1 of 1