An Act To Amend Certain Laws Administered by the Department of Environmental Protection
Maine Legislature, Session 124, LD 0476
Committee: Natural Resources
Amends: 38 MRSA §343-D, 38 MRSA §343-H, 38 MRSA §344, 38 MRSA §361-A, 38 MRSA §552, 38 MRSA §561, 38 MRSA §563, 38 MRSA §568, 38 MRSA §569-A, 38 MRSA §584-A, 38 MRSA §1367, 38 MRSA §1609

Legislative Document 
No. 476 
S.P.179 
In Senate, February 10, 2009 
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. 
Pre~ented by Senator GOODALL of Sagadahoc. 
Cqsponsor,ed by Representative DUCBE;S·NE of Hudson. 
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Printed on recycled paper 
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'JOY 1. O'BRIEN 
Secretary of the Senate 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 38 MRS A §341-J[), sub-§4, as amended by PL 2007, c. 661, Pt. B, §§2 to 
4, is further amended to read: 
4. Appeal or review. The board shall review, may hold a hearing at its discretion on 
and may affirm, amend 61' .. reverse oi'Temand to the commissioner for further proceedings 
any of the following: 
A. 
Final license Or permit decisions made. by the commissioner when a person 
aggrieved by a decision ofthe commi'ssiorier appeals that decision to the board within 
days of the filing of the decision with the board staff. The board staff shall give 
written notice to persons that have asked to be notified of the decision. The board 
may allow the record to be supplemented when it finds that the evidence offered is 
relevant and material and thai:. 
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(1) 
An interested party seeking to supplement the record has shown due 
diligence in bringing the evidence to the licensing process at the earliest possible 
time; or 
(2) 
The evidence is newly discovered and could not, by the exercise of 
diligence, have been discovered in time to be presented earlier in the licensing 
process. 
The board is not bound by the commissioner's findings of factor conclusions of law 
but may adopt, modify or reverse findings of factor conclusions of law established 
by the commissioner. Any changes made by the board under this paragraph must be 
based upon the board's review of the record, any supplemental evidence admitted by 
the board and any hearing held by the board; 
B. 
Lkense or permit decisions made by the commissioner that the board votes to 
review within 30 days of the next regularly scheduled board meeting following 
written notification to the board of the commissioner's decision. Except as provided 
in paragraph D, the procedures for review are the same as provided under paragraph 
A , 
C. 
License or permit decisions appealed to the board under another law. Unless the 
law provides otherwise, the standard of review is the same as provided under 
paragraph A; and 
D. License or permit decisions regarding an expedited wind energy development as 
defined in Title 35-A, section 3451, subsection 4. In reviewing an appeal of a license 
or permit decision by the commissioner on an application for an expedited wind 
. energy development, the board shall base its decision on the administrative record of 
the department, including the record of any adjudicatory hearing held by the 
department, and any supplemental information allowed by the board using the 
standards contained in subsection 5 for supplementation of the record. The board 
may remand the decision to the department for further proceedings if appropriate. 
. The chair of the Public Utilities Commission or the chair's designee shall serve as a 
nonvoting member of the board and is entitled to fully participate but is not required 
to attend hearings when the board considers an appeal pursuant to this paragraph. 
Page I - 124LROS27(Ol)-1 
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The chair's participation on the board pursuant to this paragraph does not affect the 
ability of the Public Dtilities Commission to submit information to the department for 
'inclusion, in the record of any proceeding before the department. 
Sec. 2. 38 MRSA §343-D, sub-§2, as enacted by PL 1991, c. 804, Pt. C, §3 and 
affected by §5, is amended to read: 
2. Terms. Except for the commissioner, who shall serve a term coincident with that 
person's appointment as the commissioner, all members are appointed for staggered terms 
of ~ .4. years. A vacancy must be filled by the same appointing authority that made the 
original appointment. Appointed members may not serve more than 2, ~ 
4-year 
terms. 
Sec. 3. 38 MRSA §343-H, sub-§3, fjfB, as amended by PL 2001, c. 695, § 1, is 
repealed. 
Sec. 4. 38 MRSA §343-H, su b-§4, as amended by PL 2003, c. 551, §4, is further 
amended to read: 
4. Reporting. The directors shall jointly report on the activities of all state agencies 
and state-supported institutions of higher learning under the initiative to the joint standing 
committee of the Legislature having jurisdiction over natural resources matters and the 
joint standing committee of the Legislature having jurisdiction over state government 
matters. 
The directors must submit their report no later than January 1, 2006, and 
biennially thereafter. The report must identify the successes of and the obstacles to 
implementation of the initiative and may include recommendations for any statutory 
changes necessary to accomplish the initiative. 
Sec. 5. 38 MRSA §344, sub-§9, as enacted by PL 1989, c. 890, Pt. A, §27 and 
affected by §40, is amended to read: 
9. License renewals, amendments, surrender and transfers. For purposes of this 
section, a request for a license or permit renewal, amendment, surrender or transfer is 
considered an application subject to decision by the department. 
Sec. 6. 38 MRSA §361-A, sub-§l-J, as amended by PL 2007, c. 292, § 16, is 
further amended to read: 
30._ I-J. 
Code of Federal ,Regulations. 
"Code of Federal Regulations" means the 
codification of regulations published in the Federal Register by the Federal Government, 
and includes those regulations effective on ~r before July 1, ;!.OO12009. 
Sec. 7., 38 MRSA §361-A, sub-§l,-K, as amended by PL 2007, c. 292, § 17, is 
further amended to read: 
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l-K. Federal Water Pollution Control Act. "Federal Water Pollution Control Act" 
36, 
means federai Public Law 92~500 'di- 33 United States Code, Sections 1251 et seq., 
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,including all'anieIidments effective cinor' befor~ July 1, ioo12009. 
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Sec. 8. 38 MRSA §552, sub-§2, as amended by PL 1997, c. 364, §30, is further 
amended to read: 
2. State need not plead or prove negligence. The intent of this subchapter is to 
provide the means for rapid and effective cleanup and to minimize direct and indirect 
damages and the proliferation of 3rd-party claims. Accordingly, any person, vessel, 
licensee, agent or servant, including a carrier destined for or leaving a licensee's facility 
while within state waters, who permits or suffers a prohibited discharge or other polluting 
coridition to take place is liable to the State for all disbursements made by it pursuant to 
section 551, subsection 5, paragraphs B, D, E, H and I, or other damage incurred by the 
State, including damage for injury to, destruction of, loss of, or loss of use of natural 
resources aOO~ the reasonable costs of assessing natural resources damage and the costs of 
preparing and implementing a natural resources restoration plan. In any suit to enforce 
claims of the State under this section, to establish liability, it is not necessary for the State 
to plead or prove negligence in any form or manner on Hie part-of the person causing- or 
suffering the discharge or licensee responsible for the discharge. The State need only 
plead and prove the fact of the prohibited discharge or other polluting condition and that 
the discharge occurred at facilities under the coritrol of the licensee or was attributable to 
carriers or others for whom the licensee is responsible as provided in this subchapter or 
occurred at or involved any real property, structure, equipment or conveyance under the 
custody or control of the person causing or suffering the discharge. 
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.Sec.9. 38 MRSA §561, as amended by PL 1995, c. 399, §5 and affected by §21, 
is further amended to read: 
§561. Findings; purpose 
The Legislature finds that significant quantities of oil are being stored in 
aboveground and underground storage facilities; that leaks and unlicensed discharges 
from these facilities pose a significant threat to the quality of the waters of the State, 
including the ground water resources; that protection of the quality of these waters is of 
the highest importance; and that their protection requires proper design and installation of 
new and replacement undergr()und oil storage facilities, as well as monitoring, 
maintenance and operating procedures for existing, new and replacement facilities. 
The Legislature intends by the enactment of this subchapter to exercise the police 
power of the State through the department by conferring upon the department the power 
to deal with the hazards and threats of danger and darriage posed by the· storage and 
handling of oil in underground facilities and related activities; to require the prompt 
containment and removal of pollution occasioned thereby; to provide procedures whereby 
persons suffering damage from these occurrences may be promptly made whole; to 
establish a fund to provide for the investigation, mitigation and removal· of discharges or 
threats of discharge of oil from aboveground and undergrotmd storage facilities, including 
the restoration of contaminated water supplies; and to guarantee the prompt payment of 
reasonable damage claims resulting therefrom. 
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. The Legislature further finds that preservation of the ground water resourees and of 
the public uses referred to in this subchapter is of grave public interest and concern to the 
State in promoting its general welfare, preventing disease, promoting health and 
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providing for the public safety and that the State's interest in this preservation outweighs 
any burdens of absolute liability imposed by the Legislature in this subchapter upon those 
engaged in the storage of oil, petroleum products and their by-products in undereround 
storaee facilities. 
Sec. 10. 38 MRSA §563, sub-§4, as amended by PL 2007, c. 655,. §4, is further 
amended to read: 
4. Registration fees. The owner or operator of an underground oil storage facility 
shall pay a fee to the department of $100 for each tank registered under this section 
located at the facility, except that single family homeowners are not required to pay a fee 
for a tank at their personal residence. The fee must be paid at the time the tank is first 
registered and everj 3 years thereafter upon receipt of a bill from the department. The 
department may prorate the fee for new installations to put all tank m,.'ners and operators 
on the same billine cvcle as appropriate. 
Sec. 11. 38 MRS A §568, sub-§1, as amended by PL 2007, c. 655, §6, is fUliher 
amended to read: 
1. Removal. Any person discharging or suffering a discharge of oil to groundwater 
from an oil storage facility in the manner prohibited by section 543 and any other 
responsible party shall immediately undertake to remove that discharge to the 
commissioner's satisfaction. Notwithstanding this requirement, the commissioner may 
order the removal of that discharge pursuant to' subsection 3 or may undertake the 
removal of that discharge and retain agents and contractors for that purpose, who shall 
operate under the direction of the commissioner. Any unexplained discharge of oil te 
groundvlater within state jurisdiction must be removed by or under the direction of the 
commissioner. Any expenses involved in the removal of discharges, whether by the 
person causing the discharge, the person reporting the discharge, the commissioner or the 
commissioner's agents or contractors, may be paid in the first instance from the Ground 
Water Oil Clean-up Fund, including any expenses incurred by the State under subsection 
3, and any reimbursements due that fund must be collected in accordance with section 
569-A or 569-B. 
Sec. 12. 38 MRSA §568, sub-§4, 'ITA, as amended by PL 1991, c.494, §9, is 
further amended to read: 
A. 
Any person who causes, or is responsible for, a discharge to ground water from 
an oil storage facility in violation of section 543 is not subject to any' fines or 
penalties for a violation of section 543 for the discharge if that person promptly 
repOIis and removes that discharge in accordance with the rules and orders of the 
commissioner and the board. 
Sec. 13. 38 MRSA §569-A, sub-§2, as amended by PL 2005, c. 330, §23, IS 
fUliher amended to read: 
2. Third-party damages. Any person claiming to have suffered property damage or 
actual economic damages, including, but not limited to, loss of income and medical 
expenses directly or indirectly as a result of a discharge of oil to ground water prohibited 
by section 543 from an oil storage facility, in this subsection called the "claimant," may 
apply to the commissioner within 2 years after the occurrence or discovery of the injury 
or damage, whichever date is later, stating the amount of damage alleged to have been 
suffered as a result of that discharge. The commissioner shall prescribe appropriate forms 
and details for the applications. 
The commissioner may contract with insurance 
professionals to process claims. The commissioner, upon petition and for good cause 
shown, may waive the 2-year limitation for filing damage claims~ 
All 3rd-party damage claims for which no determination of award has been made must be 
processed in accordance with the substantive and procedural provisions of this section. 
A. When a responsible party is known, the commissioner shall send by celiified mail 
to the responsible party notice of claim and written notice of the right to join the 
claims proceeding as an interested party. A responsible party shall provide written 
notification of intent to join to the department within 10 working days of receipt of 
this notice. If the responsible paIiy joins as an interested party and formally agrees in 
writing to the amount of the damage claim, any determination of the amount of the 
claim and award is binding in any subsequent action for reimbursements to the fund. 
If a claimant is not compensated for 3rd-party damages by the responsible party or 
the expenses are above the applicant's deductible and the claimant, the responsible 
party and the commissioner agree as to the amount of the damage claim, or if the 
responsible party does not join as an interested paIiy or when the responsible party is 
not known after the commissioner has exercised reasonable efforts to ascertain the 
responsible party, and the claimant and the commissioner agree as to the amount of 
the damage claim, the commissioner shall certify the amount of the claim and the 
name of the claimant to the Treasurer of State and the Treasurer of State shall pay the 
amount of the claim from the fund. 
B. If the claimant, the responsible party and the commissioner are not able to agree 
as to the amount of the damage claim, or if the responsible party does not join as an 
interested party in a timely manner or when the responsible party is not known after 
the commissioner has exercised reasonable efforts to ascertain the responsible party, 
and the claimant and the commissioner are not able to agree as to the amount of the 
damage claim, the claim is subject to subsection 4. 
C. A claimant shall take all reasonable measures to prevent and minimize damages 
suffered by the claimant as a result of a discharge of oil. 
Reasonable measures 
include title searches and site assessments for the acquisition of commercial or 
industrial properties. 
D. Third-party damage claims must be stated in their entirety in one application. 
Damages omitted from any claim at the time the award is made are waived unless the 
damage or injury was not known at the time of the claim. 
E. Damage claim awards paid from the fund to a claimant may not include any 
amount the claimant has recovered on account of the same damage by way of 
settlement with the responsible party or the responsible party's representative or 
judgment of a court of competent jurisdiction against the person causing or otherwise 
. responsible for the discharge. 
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F. It is the intent of the Legislature that the remedies provided for 3rd-party damage 
claims compensated under this subchapter are nonexclusive. 
A court awarding 
damages to a claimant as a result of a discharge of oil to ground water prohibited by 
section 543 shall reduce damages awarded by any amounts received from the fund to 
the extent these amounts are duplicative. 
G. Payments from the fund for 3rd-party damage claims may not exceed $200,000 
per claimant. 
H. 
A 3rd-party damage claim for damages to real estate may not include the 
devaluation of the real estate associated with the loss of· a water supply if the 
commissioner finds under section 568, subsection 2 that a public or private water 
supply is available and best meets the criteria of that subsection and the property 
owner did not agree to be served by that public or private water supply. If a water 
supply well is installed after Oet()ber 1, 1994 lo~erve a location that immediately 
before the well installation was served by a viable community public water system, 
and the well is or becomes contaminated with oil: 
(1) A 3rd party may not recover damages under this subchapter for the expenses 
of treatment or replacement of the well if the well is installed in an area 
delineated as contaminated as provided in section 548, subsection 1; and 
(2) A 3rd-party damage claim under this subchapter with regard to treatment or 
replacement of the well is limited to reimbursement of the expense of installing 
the well and its proper abandonment if the well is installed in any other area. 
For purposes of this paragraph, "viable community public water system" has the same 
meaning as in section 548. 
1. 
A claimant is not eligible for compensation under this subsection for costs, 
expenses or damages related to a discharge if the commissioner determines that the 
claimant is a responsible party as defined under section 562-A, subsection 17. 
1. 
Prior to forwarding a claim to the hearing examiner under subsection 4, the 
commissioner may require that the amount of the claim be finalized. 
K. Third-party damage claims may not include expenditures for the preparation and 
prosecution of the damage claim such as legal fees or real estate appraisal fees. 
L. The commissioner may dismiss a 3rd-party damage claim for untimely filing, for 
failure by the claimant to provide the information necessary to process the claim 
within 60 days after the claimant receives written notice that the claim is insufficient 
for processing or for ineligibility as determined by the commissioner under paragraph 
1. A dismissal may be appealed to Superior Court in accordance with Title 5, chapter 
375, subchapter 7. 
Sec. 14. 38 MRSA §584-A, sub-§l, as amended by PL 1999, c. 79, §1, IS 
repealed and the following enacted in its place: 
1. Particulate matter. For purposes of statutory interpretation, rules, licensing 
determinations, policy guidance and all other actions by the department or the board 
relating to the control of particulate matter, any reference to an ambient air quality 
standard is interpreted to refer to the national ambient air quality standard for particulate 
matter established pursuant to Section 109 of the federal Clean Air Act as amended, 42 
United States Code, Section 7409 .. 
Sec. 15. 38 MRSA §1367, first" as amended by PL 2007, c. 655, § 16, is further 
amended to read: 
. Each responsible party is jointly and severally liable for all costs incurred by the State 
resulting from hazardous substances at the site or from the acts or omissions of a 
responsible party with respect to those hazardous substances and for the abatement, 
cleanup or mitigation of the threats or hazards posed or potentially posed by an 
uncontrolled site, including, without limitation, all costs of acquiring property, and for 
damages for injury to, destruction of, loss of or loss of use of natural resources of the 
State reSUlting from hazardous substances at the site or from the acts or omissions of a 
responsible party "lith respect to those hazardous substances and for. Each responsible 
party also is jointly and severally liable for damages for injury to, destruction of, loss of 
or loss of use of natural resources of the State, the reasonable costs of assessing natural 
resources damages and the costs of preparing and implementing a natural resources 
restoration plan. The commissioner shall demand reimbursement of costs, including 
interest computed at 15% a year from the date of expenditure, and payment of damages to 
be recovered under this section and payment. Payment must be made promptly by the 
responsible party or parties upon whom the demand is made. 
Requests for 
reimbursement to the Uncontrolled Sites Fund, if not paid within 30 days of demand, may 
be tumed over to the Attomey General for collection or may be submitted to a collection 
agency or agent or an attomey retained by the department with the approval of the 
Attomey General pursuant to Title 5, section 191. The Attomey General or an attomey 
retained by.the depmtment may file suit in the Superior COUlt and, in addition to relief 
provided by other law, may seek punitive damages. Notwithstanding the time limits 
stated in this paragraph, neither a demand nor other recovery effOIts against one 
responsible party may relieve any other responsible pmty of liability. 
Sec. 16. 38 MRSA §1609, sub-§6, as enacted by PL 2007, c. 296, § 1, is repealed. 
Sec. 17. 38 MRSA §1609, sub-§l1, as enacted by PL 2007, c. 296, §1, IS 
amended to read: 
11. Application. This section does not apply to the sale of used products . .;. 
A. Used products; 
B. Products if the presence of polybrominated diphenyl ether is due solely to the use 
of recycled material; or 
C. Replacement parts that contain the "octa" or "penta" mixtures of polybrominated 
diphenyl ether if the parts are for use in a product manufactured before January 1, 
2006. 
Sec. 18. Maine Revised Statutes headnote amended; revision clause. In 
the Maine Revised Statutes, Title 38, chapter 3, subchapter 2-B, in the subchapter 
headnote, the words "underground oil storage facilities and ground water protection" are 
amended to read "oil storage facilities and ground water protection" and the Revisor of 
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Statutes shall implement this revision when updating, publishing or republishing the 
statutes. 
SUMMARY 
This bill: 
l. Amends the Maine Revised Statutes, Title 38, section 341-D, subsection 4 to add 
"remand" to the list of actions the Board of Environmental Protection may take in 
response to an appeal of a commi ssioner' s licensing decision; 
2. Amends the length of terms on the Pollution Prevention Advisory Committee 
from 3 years to 4 years; 
3.--Amends the Clean-Government Initiative by removing the requirement to file 
biennial plans and adding state-supported institutions of higher learning to those agencies 
whose activities must be reported to the Legislature; 
4. 
Clarifies the Department of Environmental Protection's authority to consider 
license amendment and surrender applications; 
5. Amends Title 38, section 361-A, subsections I-J and l-K to change the reference 
date in the definitions of "Code of Federal Regulations" and the "Federal Water Pollution 
Control Act" from July 1,2007 to July 1,2009; 
6. Authorizes the department to recover the cost of preparing and implementing a 
plan to restore natural resources damaged by the discharge of oil_or hazardous matter 
from the persons responsible for the discharge; 
7. Clarifies the scope and purpose of Title 38, chapter 3, subchapter 2-B, which 
governs oil storage tanks; 
8. Amends the laws governing oil storage tanks to clarifY that a person who suffers a 
discharge from an oil storage tank must clean it up immediately whether or not the 
discharge is shown to reach groundwater, encourage the reporting of discharges from oil 
storage tanks whether or not the discharge is known to have reached groundwater and 
clarifY that money may be disbursed from the Ground Water Oil Clean-up Fund to pay 
damages related to a discharge from an oil storage facility whether or not the discharge is 
shown to have reached groundwater; 
9. Amends Maine's ambient air quality standards for particulate matter to make them 
consistent with national ambient air quality standards for particulate matter; 
10. Requires the Commissioner of Environmental Protection to charge interest at a 
rate of 15% per annum on amounts owed to the Uncontrolled Sites Fund by responsible 
parties; and 
11. Clarifies the applicability of the laws. banning the sale of products that contain 
polybrominated diphenyl ether.