An Act To Continue Coverage of Oil Clean-up Costs and Improve Administration of the Ground Water Oil Clean-up Fund
Maine Legislature, Session 124, LD 1332
Committee: Natural Resources
Sponsors: DUCHESNE, BOLDUC, MARTIN, WEBSTER
Amends: 38 MRSA §341-G, 38 MRSA §562-A, 38 MRSA §564, 38 MRSA §565-B, 38 MRSA §568-A, 38 MRSA §569, 38 MRSA §570, 38 MRSA §570-A, 38 MRSA §570-B, 38 MRSA §570-J, 38 MRSA §570-K

124th MAINE LEGISLATURE· 
FIRST P~GULAR SESSION-2009 
Legislative Document 
No. 1332 
H.P.936 
House of Representatives, March 31,2009 
An Act To Continue Coverage of Oil Clean-up Costs and Improve 
Administration of the Ground Water Oil Clean-up Fund 
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 DUCHESNE of Hudson. 
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111· m!LC~( 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representatives: BOLDUC of Auburn, MARTIN of Eagle Lake, WEBSTER 
of Freeport. 
Printed 1..1n recycled p.ilper 
Be it enacted by the People ofthe State of Maine as follows: 
Sec. 1. 38 MRSA §341-G, sub..:§l, as am!;:nded by PL1991, c. 817, §8, is further 
amended to read: 
1. Transfer funds; The amount transferred from each fund must be proportional to 
that· fund's contribution to the total special revenues received by the department under 
chapter 2, subchapter 2; sections 551, and 569-A and 569 B; and chapter 13, subchapter 
4. Any funds received by the board from the General Fund must be credited towards the 
amount owed by the Maine Environmental Protection Fund, chapter 2, subchapter 2. 
Sec. 2. 38MRSA §562-A, sub-§'1-A, as enacted by PL 1993, c. 363, §2 and 
affected by §21, is amended to rea,d: 
i-A. Aboveground oil storage facility. "Aboveground oil storage facility" affle 
referred to as a "facility" means any aboveground oil storage tank or tanks, together with 
associated piping, transfer and dispensing facilities located over land or water ofthe State 
at a single location for more than 4 months per year and used or intended .to be used for 
the storage or supply of oil. Oil terminal facilities, as defined in section 542, subsection 7 
and propane facilities are not included in this definition and are not eligible for coverage 
by the fund. 
Sec. 3. 38 MRSA §562-A, sub-§15-A is enacted to read: 
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is-A. Oil storage facility or facility. "Oil storage facility" or "facility" means an 
aboveground oil storage facility or an underground oil storage facility. 
Sec. 4. 38 MRSA §562-A, sub-§15-B is enacted to read: 
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is-B. Operator. "Operator" means a person in control of, or having responsibility 
for, the daily operation of an oil storage facility. 
Sec. 5. 38 MRS A §562-A,stib-§21, as enacted by PL 1989, c. 865, §2, is 
amended to read: 
21. Underground oil ston~ge facility. 
"Underground oil storage facility," ftI.5e 
referred to as "facility," means any underground oil storage tank or tanks, as defined in 
subsection 22, together with associated piping and dispensing facilities located under any 
land at a single location and used, or intended to be used, for the storage or supply of oil, 
as defined in this subchapter. 
Underground oil' storage facility also includes piping 
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located under any land at a single location associated with above ground storage tanks 
and containing 10% or more ofthefaciiity's overall volume capacity. 
. 
Sec. 6. 38 MRSA §564, sub-§2-A, ,J, as amended by PL 1991, c. 494, §5, is 
further amended to read: 
J. 
Owners and operators, upon request by the commISSIOner, to' sample their 
underground oil tanks, to maintain records of all monitoring and sampling results at 
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the facility or the facility owner's place of business and to furnish records of all 
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monitoring and sampling results to the commissioner and to permit the commissioner 
or the commissioner's representative to inspect and copy those records; aHd 
Sec. 7. 38 MRSA §564, sub-§2-A,.~, as enacted by PL 1991, c.66, Pt. B, ,§5, 
is amended to read: . 
K. 
Owners and operators to permit the commissioner or the commissioner's 
designated representatives, including contractors, access to all underground oil 
storage facilities for all purposes connected with administering. this subchapter, 
including, but not limited to, for sampling the contents of underground oil tanks and 
monitoring wells. This right of access is te--ae in addition to any other granted by 
law-;-; and 
. 
Sec. 8. 38 MRSA §564, sub-§2-A, ~ 
is enacted to read: 
L. Operators to complete a depaliment training program that meets the minimum 
requirements specified by the United States Environmental Protection Agency under 
United States Code, Section 6991i (2007). 
Sec. 9. 38 MRSA §565-B is enacted to read: 
§565-B. Training of oil delivery personnel 
A person in the business of filling oil storage tanks shall ensure that any employee 
whose responsibilities include onloading or offloading oil to or from a delivery vehicle 
participates in a training program that includes, at a minimum: 
1. Prevention. Overfill and spill prevention procedures; 
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2. Reporting. Spill reporting procedures; 
3. Containment .. Spill containment and clean-up procedures; and 
4. Inspection and maintenance. Inspection and maintenance of spill prevention _ 
and containment equipment. 
A written copy of the training program and a training log must be kept at the person's 
primary place of business and made available for inspection upon request by department 
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staff. The log must list the name of each employee trained and the date or dates on which 
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each palticipated in the training. 
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Sec. 10. 38 MRS A §566-A, sub-§4, as amelided by PL 1999, c. 334, §2, IS 
fllliher amended to read: 
4. Commissioner role. If the owner of an underground oil storage facility or tank 
fails to properly abandon the facility or tank within a reasonable tithe period, the 
commissioner may undeltake the abandonment. 
The commissioner shall collect any 
reimbursement due the Ground Water Oil Clean-up Fund in accordance with section 
569-A or 569 B. Costs incurred by the commissioner to undeltake the abandonment are a 
lien against the real estate of the owner as provided under section 569-A,subsection 10-A 
and section 569 B. subsection 6 A. 
. 
Sec. 11. 38MRSA §S68, sub~§l, as amended byPL 2007, c. 655, §6, is fUliher 
amended to read: 
1. Removal. Any person discharging or suffering a discharge of oil to groundwatei' 
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 to groundwater within state jurisdiction 
must be rernoved 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 
repOliing 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 iIicun'ed by the State under ~ubsection 3, and any reimbursements due that 
fund must be collected in accordance with section 569-A or 569 B. 
Sec. 12. 38 MRSA §S68, sub-§3, as amended by PL 2007, c. 534, §4, is fUliher 
amended to read: 
3. Issuance of clean-up orders. 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 under this subchapter or subchapter 2-A. If the commissioner finds, 
after investigation, that a- discharge of oil has occurred and may create a threat to public 
health or the environment, including, but not limited to, contamination of a water supply, 
the commissioner may issue a c1ean~up order requiring the responsible party to cease the 
discharge immediately and to take action to prevent further discharge and to mitigate or 
terminate the threat of human exposure to contamination or to explosive vapors. 
In 
addition to other actions, including an action to prohibit product delivery under,section 
565-A,the commissioner may, as part of any clean-lIp- order, require the responsible party 
to provide temporary drinking water and water treatment· systems approved by the 
commissioner, to sample and analyze wells arui~ to compensate 3rd-party damages 
resulting from the discharge and to impose restrictions by deed covenant or other means 
on the use of the real property where the discharge occurred. The commissioner may also 
order that the responsible party take temporary and permanent remedial actions at 
locations threatened or affected by the discharge of oil" including a requirement that the 
responsible party restore or replace water supplies contaminated with oil with water 
supplies the commissioner. finds are cost effectiv~, technologically feasible and reliable 
and that effectively mitigate or minimize damage to, and provide adequate protection of, 
the public health, welfare and the environment. Clean-up orders may be issued only in 
compliancewith the following procedures. 
A. Any orders issued under this section must contain findings of fact describing the 
manner and extent of oil contamination, the site of the discharge and the threat to the 
public health or environment. Service of a copy of the commissioner's findings and 
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order must be made by the sheriff or deputy sheriff or by hand delivery by an 
authorized, representative of the department in accordance with the Maine Rules of 
Civil Procedure. 
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B. A responsible party to whom such an order is directed may apply to the board Jor 
a.hearing on the order if the application is made within 10 working days after receipt 
of the order by a'responsible party. Within 15 working days after receipt of the 
application, the board shall hold a hearing, make findings of fact and vote on a 
decision that continues, revokes or modifies the order. That decision must be in 
writing and signed by the board chair using any means for signature authorized in the 
department's rules and published within 2 working days after the hearing and vote. 
The nature of the hearing is an appeal. At the hearing,all witnesses must be sworn 
. and the commissioner shall first establish the basis for the order and for naming the 
person to whom the order was directed. The burden of going forward then shifts to 
the person appealing to demonstrate, based upon a preponderance of the evidence, 
that the order should be modified or rescinded. 
The decision of the board may be 
appealed to the Superior Court in accordance with Title 5, chapter 375, subchapter 7. 
C. Upon completion of the clean-up activity, the commissioner shall issue a letter to 
the responsible party or parties indicating that the clean-up order has been complied 
with for one or more parcels. 
Sec. 13. 38 MRS A §568-A, sub-§l, 'fiF, as enacted by PL 1995, c. 361, §4, is 
amended to read: 
F. 
Within 15 working i:Iays of receipt of a request under paragraph A, the 
commissioner in the case of an underground oil storage facility or the State Fire 
Marshal in the case of an aboveground oil storage facility shall determine whether the 
request is complete. 
Failure to inform the applicant of the determination of 
completeness within 15 working days constitutes acceptance as complete. 
If the 
application is not accepted, the commissioner or State Fire Marshal shall return 'the 
application to the applicant with the reasons for nonacceptance specified in writing. 
Within 90 days of receipt of an applicant's completed request for coverage by the 
fund submitted pursuant to this subsection, the commissioner or State Fire Marshal 
shall issue an order determining eligibility and, if the applicant is eligible, specifying 
the amount of the deductible under subsection 2. Failw'e to issue an order ',:vithin this 
period constitutes a determination that the applicant is eligible, subject to the 
deductibles in subsection 2. oarae:raoh A. 
Sec. 14. 38 MRSA §568-A, sub-§I, W-l is enacted to read: 
F-l. . Within 90 days of receipt of an applicant's completed request for coverage by 
the fund submitted pursuant to this subsection, the commissioner or State Fire 
Marshal shall issue an order determining eligibility and, if the applicant is eligible, 
specifying the amount of the deductible under subsection 2. Failure to issue an order 
within this period constitutes a determination that the applicant is eligible, subject to 
the deductibles in subsection 2, paragraph A. An order issued under this paragraph 
maybe conditioned on. any reasonable terms determined necessary by the 
commissioner or State Fire Marshal to prevent or limit human exposure to 
contamination from the discharge, including a requirement that the applicant impose 
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restrictions by deed covenant or other means on the use of the real property where the 
discharge occurred. 
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Sec. 15. 38 MRSA §S68-A, sub-§l, GUL is enacted to read: 
L. Costs incurred to implement a voluntary response action plan under section 343-E 
are not eligible for coverage under this section. 
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Sec. 16. 38 MRSA §S68-A, sub-§l, ~ 
is enactedto read: 
M. An applicant is not eligible for coverage under this section if the applicant is a 
motor carrier under the Motor Carrier Act, 49 United States Code, Section 31139 and 
the discharge for which coverage is sought occurred during the offloading or 
onloading of oil from or to a motor vehicle used to transport oil. 
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Sec. 17. 38 MRSA §S68-A, sub-§7, as amended by PL 2003"c. 245, §IO, is 
repealed. 
Sec. 18 .. 38 MRSA §S68-B, sub-§3, as enacted by PL 2003, c, 245, §II, is 
repealed. 
Sec. 19. ,38 MRSA §S69-A, sub-§8,~, as amended by PL 1995, c. 399,§14 
and affected by §21, is further amended to read: 
B. All costs, including personnel and equipment expenses, involved in the response 
to. and removal of a prohibited discharge, the abatement of pollution and the 
implementation of remedial measures, .including restoration of water supplies, related 
. to the discharge or threatened discharge of oil to ground ,;vater, whether .from an 
aboveground or underground oil storage facility; if the costs are not. p'aid by a 
responsible party or an applicant for coverage by the fund; 
Sec. 20. 38 MRSA §S69-A, sub-§10, as enacted by PL 199f, c. 817, §26, is 
repealed and the. following enacted in its place: 
10. 
Reimbursements to tund. 
The commissioner shall seek recovery from 
responsible parties of all sums expended from the fund, including overdrafts, for the 
purposes ,described in subsection 8, paragraphs B, D, E, Hand J or for other damage 
incurred by the State in connection with a prohibited discharge, including interest 
computed at 15% a year from the date of expenditure, unless the commissioner finds the 
amount involved too small or the likelihood of success too uncertain or unless the 
responsibl,e party is found to be eligible for coverage of the sum under section 568-A. If 
payment is not received by the State w.ithin 30 days of the demand, the Attorney General 
may file suit in Superior Court or the department may file suit in District Court and, in 
addition to· relief provided by other law, may seek punitive damages as provided in 
section 568. Notwithstanding the time limits stated in this subsection, neither a demand 
nor other recovery efforts against one responsible party may relieve any other responsible 
party of liability. 
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Sec. 21. 38MRSA §S69-A, sub-§13, as amended by PL 2003, c. 245, § 13, is ' 
repealed. 
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Sec. 22. 38 MRSA §569..:B, as amended by PL 2003, c. 245; § 14, is repealed. 
Sec. 23. 38 MRS A §570, first 'If, as amended by PL 2007, c. 292, §35, is further 
amended to read: 
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5. 
19. 
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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, each responsible party is jointly and severally liable for all disbursements 
made by the State pursuant to section 569-A, subsection 8, paragraphs B, D, E, Hand J, 
or other damage incurred by the State, except that the owner and operator of an oil 
storage facility that has suffered a discharge of oil are not liable for costs found by the 
commissioner to be eligible for coverage under the. fund section 568-A. The term "other 
damages, "as used in this paragraph, includes interest computed at 15%a year from the 
. date of expenditure and damage for injury to, destruction of, loss of or loss of use of 
natural resources and, the reasonable costs of assessing natural resources damage and the 
costs of preparing and implementing a natural resources restoration plan. 
The 
commissioner shall demand reimbursement of costs and damages paid by the department 
from state or federal funds except for amounts that are eligible for coverage by the fund 
under this subchapter as. provided under section 569-A, subsection 10. Payment must be 
made promptly by the responsible· party or parties upon whom the demand is made. If 
payment is not received by the State within 30 days of the demand, the Attorney General 
may file suit in the Superior Court or the department may file suit in District Court and~ in 
addition to relief provided by other law, may seek punitive damages as provided in· 
section 568. Notwithstanding the time limits stated in this paragraph, neither a demand 
nor other recovery efforts against one responsible party may relieve any other responsible 
party of liability. 
Sec. 24. 38 MRSA §570, first 'If, as amended by PL 2007, c. 292, §36, is 
repealed. 
Sec. 25. 38 MRSA §570-A, last Cf[, as amended by PL 2003, c. 245, § 15, is 
repeoaled. 
Sec. 26. 38 MRSA §570-B, last 'If, as amended by PL 2003, c. 245, § 16, is 
repealed. 
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Sec. 27; 38 MRS A §570-I, as amended by PL 2003, c. 245, § 17, is repealed. 
Sec. 28. 38 MRSA §570-J, as amencled by PL 2003, c. 245, §18, is repealed. 
Sec. 29. 38 MRSA §570-K, sub-§3-A is enacted to read: 
3-A. Abandonment; closure. An aboveground oil storage facilitY or tank that has 
been or is intended to be taken out of service for a period of more than 12 months must be 
abandoned in accordance with rules adopted by the board. The board, in consultation 
with the Department of Public Safety, Office of the State Fire Marshal, shall adopt 
routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A setting forth the 
prbper procedures for abandonment, including, but ° not limited to, requirements and 
procedures for conducting a site assessment to determine if the facility or tank has 
, suffered oil discharges, requirements for removal of discharges discovered during the site 
assessment and acceptable methods for emptying and disposing of tanks and piping. The 
rules must specify the circumstances under which a closed facility or tank may be 
returned to service and must be consistent with the rules governing abandonment of 
underground oil storage facilities and tanks, as adopted by the board pursuant to section 
566-A, subsection 3. 
Sec. 30. 38MRSA §S70-K, sub-§4, as amended by PL 2001, c. 605, §2, IS 
further amended to read: 
4. Exemption. Thefollowing aboveground oil storage facilities are exempt from the 
requirements of subsections 2 iffiEI., 3 and 3-A: 
A. Facilities or portions of facilities that are used' exclusively for the storage of #2 
and other home heating oil and consist of an individual tank of 660 gallons or less 
capacity or an aggregate tank capacity of 1320 gallons or less; and 
B. Facilities containing only 'liquefied petroleum gas or liquefied natural gas. 
Sec. 31. PI. 1991, c. 817, §30, as amended by PL 2003, c. 245, §21, is repealed. 
SUMMARY 
This bill does the following. 
1. It eliminates the December 31, 2010 sunset date on the provisions of law that 
insure owners and operators of oil storage tanks against the costs of cleaning up tank 
leaks and authorize the department to pay those costs, up to $1,000,000 per incident, from 
the Ground Water Oil Clean-up Fund. 
2. It repeals the provisions of law that are due to take effect on the sunset date of the 
Ground Water Oil Clean-up'Fund. 
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3. It requires the Board of Environmental Protection to adopt rules establishing a 
training program for operators of underground oil storage facilities used to store motor 
fuel or used in the marketing and distribution of oil. 
4. It requires persons in the business of delivering oil to storage tanks to conduct 
employee training. 
5. 
It authorizes the use of restrictive covenants and other land use contro Is to 
minimize the risk of human exposure to residual contamination on prope\ty that has 
suffered an oil discharge. 
6. It makes costs incurred to implement a voluntary response action plan, in which a 
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persori agrees to clean up oil contamination at that person's own expense in exchange for 
protection from liability, ineligible for coverage by the Ground Water Oil Clean-up Fund. 
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7. It requires the Commissioner of Environm~ntal Protection to seek repayment of 
disbursements from the Ground Watel' Oil Clean-up Fund from responsible parties who 
are not eligible for coverage undei' the fund. 
8. 
It authorizes the Department of Environmental Protection to seek recovery of 
personnel and equip!nent costs incurred by the department in responding to a discharge of 
oil. 
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9. It requires aboveground oil storage facilities that have been out of service for more· 
than 12 months to be abandoned in accordance with rules adopted by the Board of 
Environmental Protection.