An Act To Amend Laws Administered by the Department of Environmental Protection
Maine Legislature, Session 124, LD 1603
Committee: Natural Resources
Sponsors: GOODALL, DAMON, BERRY, BUTTERFIELD, DUCHESNE, HASKELL, HINCK
Amends: 23 MRSA §310, 23 MRSA §3106, 38 MRSA §551, 38 MRSA §566-A, 38 MRSA §568-A, 38 MRSA §569-A, 38 MRSA §569-B, 38 MRSA §1296, 38 MRSA §1298, 38 MRSA §1319-C, 38 MRSA §1319-G, 38 MRSA §1661-C

Legislative Document 
No. 1603 
S.P.610 
In Senate, December 18, 2009 
An Act To Amend Laws Administered by the Department of 
Environmental Protection 
Submitted by the Department of Envirow-nental Protection pursuant to Joint Rule 204. 
Received by the Secretary of the Senate on December 18,2009. Referred to the Committee 
on Natural Resources pursuant to Joint Rule 308.2 and ordered printed. 
Presented by Senator GOODALL of Sagadahoc. 
9tf)(J~ 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Senator: DAMON of Hancock, Representatives: BERRY of Bowdoinham, 
BUTTERFIELD of Bangor, DUCHESNE of Hudson, HASKELL of Portland, HINCK of 
Portland. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 23 MRSA §310S, as repealed and replaced by PL 2009, c. 239, §4, is 
repealed. 
Sec. 2. 23 MRS A §31OS-A is enacted to read: 
§3105-A. Use of town equipment 
The inhabitants of any town or village corporation at a legal town or village 
corporation meeting may authorize the municipal officers of the town or assessors of the 
village corporation to use its highway equipment on private ways within such town or 
village corporation whenever such municipal officers or assessors consider it advisable in 
the best interest of the town or village corporation for fire and police protection. 
II 
Sec. 3. 23 MRSA §3106, sub-§l, as enacted by PL 2009, c. 225, § I, is amended 
to read: 
1. Repairs to a private road. A munioipality may For the purpose of protecting or 
restoring a great pond, as defined in Title 38, section 480-B, subsection 5, the inhabitants 
of any town or village corporation at a legal town or village corporation meeting may 
appropriate funds to repair a private road, way or bridge to prevent storm water runoff 
pollution from reaching a great pond as defined in Title 38, seotion 480 B, subseotion 5 
throu!?:h the e1coenditure ofoublio funds if: 
A. The private road, way or bridge is within the watershed of the great pond; 
B. The great pond: 
(I) Is listed on the Department of Environmental Protection's list of bodies of 
water most at risk pursuant to Title 38, section 420-D, subsection 3; 
(2) Has been listed as impaired in an integrated water quality monitoring and 
assessment report submitted by the Department of Environmental Protection to 
the United States Environmental Protection Agency pursuant to the federal Clean 
Water Act, 33 United States Code, Section 1315(b) at least once since 2002; or 
(3) 
Is identified as having threats to water quality in a completed watershed 
survey that uses a protocol accepted by the Department of Environmental 
Protection; 
C. The Department of Environmental Protection or the municipality determines that 
the private road, way or bridge is contributing to the degradation of the water quality 
of the great pond based upon an evaluation of the road, way or bridge using a 
protocol accepted by the department; 
D. The repair complies with best management practices required by the Department 
of Environmental Protection; and 
E. The private road, way or bridge is maintained by a road association organized 
under this subchapter or Title 13-B. 
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Sec. 4. 38 MRS A §548, first ~, as affected by PL 1989, c. 890, Pt. A, §40 and 
amended by Pt. B, § 114, is further amended to read: 
Any person discharging or suffering the discharge of oil in the manner prohibited by 
section 543 shall immediately undertake to remove that discharge to the commissioner's 
satisfaction. Notwithstanding the above requirement, the commissioner may undertake 
the removal or cleanup of that discharge and may retain agents and contractors for those 
purposes who shall operate under the direction of the commissioner. The commissioner 
may implement remedies to restore or replace water supplies contaminated by a discharge 
of oil prohibited by section 543, including all discharges from interstate pipelines, using 
the most cost-effective alternative that is technologically feasible and reliable and wJ:H.eI:t 
that effectively mitigates or minimizes damages to, and provides adequate protection of, 
the public health, welfare and the environment. The commissioner may investigate and 
sample sites where an oil discharge has or may have occurred to identify the source and 
extent of the discharge. During the course of the investigation, the commissioner may 
require submission of information or documents that relate or may relate to the discharge 
under investigation from any person who the commissioner has reason to believe may be 
a responsible party. If the commissioner finds, after investigation, that a discharge of oil 
has occurred and may create a threat to public health or the environment, the 
commissioner may issue a clean-up order in accordance with section 568, subsection 3. 
Sec. 5. 38 MRS A §551, sub-§5, CijJE, as amended by PL 1985, c. 496, Pt. A, § 13, 
is further amended to read: 
E. 
Payment of costs of arbitration and arbitrators hearings, independent hearing 
examiners and independent claims adjusters for 3rd-party damage claims; 
Sec. 6. 38 MRSA §551, sub-§6-A, as enacted by PL 1997, c. 364, §28, IS 
amended to read: 
6-A. 
Lien. 
All costs incurred by the State in the removal, abatement and 
remediation of a prohibited discharge of oil and interest are a lien against the real estate 
of the responsible party. The lien does not apply to the real estate of a licensee if the 
discharge was caused or suffered by a carrier destined for the licensee's facilities. 
A celtificate of lien signed by the commissioner must be sent by certified mail to the 
responsible party prior to being recorded and may be filed in the office of the clerk of the 
municipality in which the real estate is located. The lien is effective when the certificate 
is recorded with the registry of deeds for the county in which the real estate is located. 
The celtificate of lien must include a description of the real estate, the amount of the lien 
and the name of the owner as grantor. 
When the amount for which a lien has been recorded under this subsection has been paid 
or reduced, the commissioner, upon request by any person of record holding interest in 
the real estate that is the subject of the lien, shall issue a certificate discharging or 
paltially discharging the lien. The certificate must be recorded in the registry in which 
the lien was recorded. Any action of foreclosure of the lien must be brought by the 
Attorney General in the name of the State in the Superior COUlt for the judicial district in 
which the real estate subject to the lien is located. 
Sec. 7. 38 MRSA §566-A, sub-§l, as enacted by PL 1987, c. 491, § 14, IS 
amended to read: 
1. Abandonment. All underground oil storage facilities and tanks that have been, or 
are intended to be, taken out of service for a period of more than 12 months sflal+ must be 
properly abandoned by the owner or operator of the facility or tank or, if the owner or 
operator is unknown, dissolved or insolvent, by the current owner of the property where 
the facility or tank is located. All abandoned facilities and tanks sflal+ must be removed, 
except where removal is not physically possible or practicable because the tank or other 
component of the facility to be removed is: 
A. 
Located beneath a building or other permanent structure; 
B. 
Of a size and type of construction that it cannot be removed; 
C. 
Otherwise inaccessible to heavy equipment necessary for removal; or 
D. 
Positioned in such a manner that removal will endanger the structural integrity 
of nearby tanks. 
Sec. 8. 38 MRSA §566-A, sub-§l-A, as amended by PL 2007, c. 655, §5, is 
further amended to read: 
I-A. Abandoned tanks brought back into service. Underground oil storage tanks 
and facilities that have been out of service for a period of more than 12 months may not 
be brought back into service without the written approval of the commissioner. The 
commissioner may approve the return to service if the owner demonstrates to the 
commissioner's satisfaction that: 
A. 
The facility is in compliance with this subchapter and rules adopted pursuant to 
this subchapter; 
B. 
The underground oil storage taHk tanks and piping have successfully passed 
testing as directed by the commissioner; 
C. 
The underground oil storage taR:I~ tanks and piping are constructed of fiberglass, 
cathodically protected steel or other equally noncorrosive material approved by the 
commissioner; 
D. The facility has conforming suction or double-walled pressurized piping; and 
E. 
The return of the facility to service does not pose an unacceptable risk to 
groundwater resources. In determining if the facility poses an unacceptable risk to 
groundwater resources, the commissioner may consider the age and maintenance 
history of the storage tanks and piping, the number and consequences of past oil 
discharges from the tanks and piping, the proximity of the facility to drinking water 
supplies and the proximity of the facility to sensitive geologic areas. 
The commissioner may not approve the return to service of a single-walled underground 
oil storage tank that has been out of service for more than 12 months. 
Sec. 9. 38 MRSA §568-A, sub-§2, '1lC, as amended by PL 2005, c. 330, §21, is 
further amended to read: 
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C. Conditional deductibles for aboveground facilities and tanks are as follows. 
(1) For aboveground tanks subject to the jurisdiction of the State Fire Marshal 
pursuant to 16-219 CMR, chapter 34, the deductibles are: 
(a) Five thousand dollars for failure to obtain a construction penn it from the 
Office of the State Fire Marshal, when required under Title 25, chapter 318 
and 16-219 CMR, chapter 34 or under prior applicable law; 
(b) 
Five thousand dollars for failure to design and install piping in 
accordance with section 570-K and rules adopted by the department; 
(c) Five thousand dollars for failure to comply with an existing consent 
decree, court order or outstanding deficiency statement regarding violations 
at the aboveground facility; 
(d) Five thousand dollars for failure to implement a certified spill prevention 
control and countenneasure plan, if required; 
(e) 
Five thousand dollars for failure to install any required spill control 
measures, such as dikes; 
(f) 
Five thousand dollars for failure to install any required overfill 
equipment; 
(g) Five thousand dollars if the tank is not approved for aboveground use; 
and 
(h) Ten thousand dollars for failure to report any leaks at the facility. 
(2) For aboveground tanks subject to the jurisdiction of the Oil and Solid Fuel 
Board, the deductibles are: 
(a) 
One hundred and fifty dollars for failure to install the facility in 
accordance with rules adopted by the Oil and Solid Fuel Board and in effect 
at the time of installation; 
(b) Two hundred and fifty dollars for failure to conform an upgraded facility 
to the requirements provided in comply with the rules of the Oil and Solid 
Fuel Board; 
(c) Two hundred and fifty dollars for failure to make a good faith effort to 
properly maintain the facility; and 
(d) Five hundred dollars for failure to notify the department of a spill. 
Sec. 10. 38 MRS A §569-A, sub-§8, ~, as amended by PL 1995, c. 399, § 14 
and affected by §21, is further amended to read: 
B. All costs involved in the removal of a prohibited discharge, the abatement of 
pollution and the implementation of remedial measures, including restoration of 
water supplies, related to the discharge of oil to ground '>vater, '.vhether from an 
aboveground or underground oil storage facility, not paid by a responsible party or an 
applicant for coverage by the fund; 
Sec. 11. 38 MRSA §569-A, sub-§10-A, as amended by PL 1999, c. 334, §4, is 
further amended to read: 
to-A. 
Lien. 
All costs incurred by the State in the removal, abatement and 
remediation of a prohibited discharge of oil from an aboveground or underground oil 
storage facility and all costs incurred by the State in the abandonment of an underground 
oil storage facility or tank under section 566-A, subsection 4 and interest are a lien 
against the real estate of the responsible party. 
For a responsible party determined 
eligible for coverage under section 568-A, subsection I, the lien is for the amount of any 
unpaid deductible assigned under section 568 .. A, subsection 2 eF-fer and any eligible 
clean-up costs and 3rd-party damage claims above $1,000,000. 
II 
A certificate of lien signed by the commissioner must be sent by certified mail to the 
responsible party prior to being recorded and may be filed in the office of the clerk of the 
municipality in which the real estate is located. The lien is effective when the certificate 
is recorded with the registry of deeds for the county in which the real estate is located. 
The certificate of lien must include a description of the real estate, the amount of the lien 
and the name of the owner as grantor. 
When the amount for which a lien I' IS been recorded under this subsection has been paid 
or reduced, the commissioner, upon request by any person of record holding interest in 
the real estate that is the subject of the lien, shall issue a certificate discharging or 
partialIy discharging the lien. The certificate must be recorded in the registry in which 
the lien was recorded. Any action of foreclosure of the lien must be brought by the 
Attorney General in the name of the State in the Superior Court for the judicial district in 
which the real estate subject to the lien is located. 
Sec. 12. 38 MRSA §569-B, sub-§5, €jJB, as amended by PL 1995, c. 399, § 19 
and affected by §21, is further amended to read: 
B. All costs involved in the removal of a prohibited discharge, the abatement of 
pollution and the implementation of remedial measures, including restoration of 
water supplies, related to the discharge of oil, petroleum products and their by-
products to ground ' ..... ater from an aboveground or underground oil storage facility; 
Sec. 13. 38 MRSA §1296, as amended by PL 2005, c. 330, §25, is further 
amended by adding after the 4th paragraph a new paragraph to read: 
The commissioner may initiate enforcement action under section 347-A in lieu of 
issuing an order under this section. 
Sec. 14. 38 MRSA §1298, sub-§3, as enacted by PL 2007, c. 628, Pt. B, §4, is 
amended to read: 
3. Application. The application under subsection 2 must be submitted together with 
a report by a lead inspector that indicates that the leased residential dwelling has been 
tested for the presence of lead-based paint and lead-contaminated dust and or a report by 
a lead dust sampling technician that indicates the leased residential dwelling has been 
tested for lead-contaminated dust. The repO\i must indicate that the dwelling meets the 
requirements for certification as lead safe inclusion on the registry in accordance with the 
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standards and procedures established by rules adopted by the commissioner the 
department. 
Sec. 15. 38 MRSA §1319-C, sub-§3 is enacted to read: 
3. Responsible party. "Responsible party" means any person who could be held 
liable under section 1319-J. 
Sec. 16. 38 MRSA §1319-G, sub-§I-A is enacted to read: 
i-A. 
Lien. 
All costs incurred by the State in the removal, abatement and 
remediation of an unlicensed discharge or threatened discharge of hazardous waste, waste 
oil or biomedical waste under this subchapter and interest are a lien against the real estate 
of the responsible party. 
A certificate of lien signed by the commissioner must be sent by certified mail to the 
responsible party prior to being recorded and may be filed in the office of the clerk of the 
municipality in which the real estate is located. The lien is effective when the certificate 
is recorded with the registry of deeds for the county in which the real estate is located. 
The certificate of lien must include a description of the real estate, the amount of the lien 
and the name of the owner as grantor. 
When the amount for which a lien has been recorded under this subsection has been paid 
or reduced, the commissioner, upon request by any person of record holding interest in 
the real estate that is the subject of the lien, shall issue a certificate discharging or 
partially discharging the lien. The certificate must be recorded in the registry in which 
the lien was recorded. Any action of foreclosure of the lien must be brought by the 
Attorney General in the name of the State in the Superior Court for the judicial district in 
which the real estate subject to the lien is located. 
Sec. 17. 38 MRS A §1393,sub-§2, as enacted by PL 2007, c. 569, §6, is amended 
to read: 
2. Exceptions. Subsection 1 does not apply to: 
A. 
A facility in existence or under construction on the effective date of the 
prohibition established under subsection 1. 
As used in this paragraph, "under 
construction" means that a substantial amount of money or effort.has been expended 
toward completion of the facility as determined by the commissioner. The test of 
substantiality involves an assessment of the amount of money or effort expended in 
relation to the amount required to complete the facility; 
B. The replacement or expansion of an underground oil storage facility in existence 
on September 30, 2001 or a facility identified in subsection I, paragraph B in 
existence on September 30, 2008 as long as the replacement or expansion occurs on 
the same property and the facility meets all applicable requirements of law; 
C. The conversion of an aboveground oil storage facility in existence on September 
30, 2001 to an underground oil storage facility or vice versa, as long as the 
conversion occurs on the same property and the facility to be converted meets all 
applicable requirements of law; 
D. The installation of an oil storage facility used solely to store heating oil for 
consumption on the premises, including the installation of an aboveground heating oil 
supply tank; or 
E. The installation of a facility located on the same property as a well serving only 
users of that property. 
This subsection may not be interpreted to allow the conversion, replacement or expansion 
of an underground oil storage tank or underground oil storage facility subject to the 
abandonment requirement under section 566-A. 
Sec. 18. 38 MRS A §1661-C, sub-§I, as enacted by PL 2001, c. 373, §3, IS 
repealed. 
Sec. 19. 38 MRSA §1661-C, sub-§2, as enacted by PL 2001, c. 373, §3, IS 
repealed. 
Sec. 20. 38 MRSA §1661-C, sulb-§6, W, as enacted by PL 2003, c. 221, §4, is 
amended to read: 
F. 
A manometer other than a manometer prohibited from sale under subsection 2; 
Sec. 21. 38 MRSA §1661-C, sub-§6, tIfiI, as enacted by PL 2003, c. 221, §4, is 
amended to read: 
I. 
A thermometer other than a thermometer prohibited from sale under subsection I. 
Sec. 22. 38 MRS A §1661-C, sub-§9, arrA, as enacted by PL 2009, c. 86, § I, is 
amended to read: 
A. 
After June 30, 2011, a person may not sell or offer to sell or distribute for 
promotional purposes a mercury-added button cell battery identified in this paragraph 
or a product that contains a mercury-added button cell battery identified in this 
paragraph: 
(1) A zinc-air button cell battery; 
(2) An alkaline manganese button cell battery; or 
(3) 
A silver oxide button cell battery stamped with the designation ~, 
SR364, SR371, SR377 or SR395 357,364,371, 377, 395, SR44W, SR621SW, 
SR626SW, SR920SW or SR927SW or a silver oxide button cell battery that is 
interchangeable with a battery that is stamped with one of those designations; and 
Sec. 23. 38 MRS A §1664, sulb-§2, as repealed and replaced by PL 2003, c. 640, 
§1,isrepealed. 
Sec. 24. 38 MRS A §1665-B, sub-§2-A, as enacted by PL 2009, c. 277, § 1 0, is 
amended to read: 
2-A. Wholesaler responsibility. A wholesaler may not sell a thermostat in the State 
unless the wholesaler acts as a collection site for thermostats that contain mercury. A 
wholesaler may meet the requirements of this subsection by participating as a collection 
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site in a manufacturer collection and recycling program under subsection 2. A wholesaler 
shall post in a prominent location open to public view a notice about the financial 
incentive plan developed pursuant to subsection 4. The notice must be approved by the 
department and supplied by the manufacturer at no cost to the wholesaler. 
Sec. 25. PL 1995, c. 704, Pt. A, §24, 2nd ~ is amended to read: 
Unless a transfer of the permit-granting authority to the Department of Transportation 
occurs earlier, and notwithstanding any other provision of law, beginning June 30, 1999, 
the Department of Transportation has permit-granting authority relating to traffic. In the 
event of a transfer, a proposed development subject to review under the Maine Revised 
Statutes, Title 38, chapter 3, subchapter I, article 6, solely because it meets the traffic 
threshold provisions of Title 38, section 482, subsection 2, is subject only to the 
jurisdiction of the Maffie Department of Transportation. Projects subject to review under 
Title 38, chapter 3, subohapter I, article 6 on grounds including, but not limited to, the 
traffic threshold are subjeot to the joint jurisdiction of the Department of Environmental 
Protection and the Department of Transportation and this joint jurisdiction must be 
exercised throu2'h a consolidated nroceedin2'. 
SUMMARY 
This bill changes the description of where a town may use its highway equipment for 
fire and police protection from "private roads, private ways or bridges" to "private ways." 
With respect to fire and police protection, it restores the laws governing the use of the 
highway equipment of a town on private ways to substantially the form they had before 
the enactment of Public Law 2009, chapter 239. The bill also specifies that the residents 
of a town or village corporation at a town or village corporation meeting may appropriate 
funds to repair a private road, way or bridge for the purpose of protecting or restoring a 
great pond. 
It amends the laws govern ing oi I discharges to make it clear that the authority of the 
Commissioner of Environmental Protection to issue clean-up orders extends to all oil 
discharges and is not limited to discharges that emanate from a storage tank. 
It updates language regarding 3rd-party damage claims arising from oil discharges. 
It amends the laws governing oil discharges to authorize the Department of 
Environment Protection, consistent with current authority under the law governing 
uncontrolled hazardous substance sites, to include interest when placing liens to recover 
costs incurred by the department in response to an oil discharge. 
It clarifies the circumstances under which the owner of a parcel of land on which an 
out-of-service oil storage facility is located may be held responsible for properly 
abandoning the facility. 
It prohibits the return to service of a single-walled underground oil storage tank that 
has been out of service for more than 12 months. 
It clarifies the applicability of the deductible amount that must be paid by the owner 
or operator of a leaking oil storage tank when seeking coverage of clean-up costs from 
the Ground Water Oil Clean-up Fund when the owner has failed to comply with the 
requirement to obtain a construction permit from the Office of the State Fire Marshal. 
It clarifies applicability of the deductible amount that must be paid by the owner or 
operator of a leaking oil storage tank when seeking coverage of clean-up costs from the 
Ground Water Oil Clean-up Fund if the tank fails to conform to the requirements of the 
Oil and Solid Fuel Board. 
It expands the enforcement options available to the Commissioner of Environmental 
Protection when addressing violations of the lead abatement laws. 
It allows a landlord to employ a lead dust sampling technician to show that a dwelling 
unit qualifies for listing on the registry of leased lead-safe residential dwellings. Under 
current law, a landlord must use a lead inspector. 
It authorizes the Department of Environmental Protection to recover costs incurred in 
responding to a discharge of hazardous waste, waste oil and biomedical waste by placing 
a lien against the real estate of the responsible party. 
It amends the laws governing mercury-added products to consolidate provisions 
prohibiting the sale of mercury manometers and thermometers. 
It amends the laws governing mercury thermostats to consolidate requirements for 
thermostat wholesalers. 
It deletes language in unallocated law that requires the Department of Environmental 
Protection to hold consolidated proceedings with the Department of Transportation in 
certain situations. 
It amends the laws governing the Ground Water Oil Clean-up Fund to authorize 
disbursements for the cleanup of discharges from oil storage facilities whether or not the 
oil reaches ground water. 
It amends the laws governing wellhead protection to make it clear that an abandoned 
underground oil storage facility located within a wellhead protection zone may not be 
replaced. 
It clarifies the prohibition on the sale of mercury-added silver oxide button cell 
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batteries. 
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