An Act To Conform the Authority of the Department of Environmental Protection to Federal Law
Maine Legislature, Session 125, LD 1575
Committee: Environment and Natural Resources
Sponsors: RAYE, NUTTING, HOBBINS, CAIN
Amends: 38 MRSA §341-A, 38 MRSA §341-C

Legislative Document 
No. 1575 
S.P. 507 
In Senate, May 18, 2011 
An Act To Conform the Authority of the Department of 
Environmental Protection to Federal Law 
(EMERGENCY) 
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed. 
JOSEPH G. CARLETON, JR. 
Secretary of the Senate 
Presented by President RAYE of Washington.  (GOVERNOR'S BILL) 
Cosponsored by Speaker NUTTING of Oakland and 
Senator: HOBBINS of York, Representative: CAIN of Orono. 
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, a recent letter from the Attorney General has brought into question the 
eligibility of members of the Board of Environmental Protection to legally serve; and 
Whereas, this uncertainty has a negative impact on the work of State Government; 
and 
Whereas, the economic health of the State of Maine will suffer if this uncertainty is 
not remedied with all due speed; and 
Whereas, in the judgment of the Legislature, these facts create an emergency within 
the meaning of the Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  38 MRSA §341-A, sub-§3, ¶B, as amended by PL 1997, c. 794, Pt. A, 
§2, is further amended to read: 
B.  When the State receives authority to issue permits under the Federal Water 
Pollution Control Act, 33 United States Code 1982, Section 1251 et seq., as amended, 
a person may not serve as commissioner who The commissioner may not participate 
in the review of or act on an application for a National Pollutant Discharge 
Elimination System permit or the modification, renewal or appeal of a permit under 
Section 402 of the Federal Water Pollution Control Act, 33 United States Code, 
Section 1342 if the commissioner receives, or during the previous 2 years prior to 
appointment has received, a significant portion of income directly or indirectly from 
license or National Pollutant Discharge Elimination System permit holders or 
applicants for a license or permit under the Federal Water Pollution Control Act.  If 
the commissioner's authority is restricted under this paragraph, the commissioner 
shall delegate duties related to the restricted matter to employees of the department 
who do not receive or have not received during the previous 2 years a significant 
portion of income directly or indirectly from National Pollutant Discharge 
Elimination System permit holders or applicants.  For the purposes of this section, "a 
significant portion of income" means 10% or more of gross personal income for a 
calendar year, except that it means 50% or more if the recipient is over 60 years of 
age and is receiving that portion under retirement, pension or similar arrangement.  
Duties that must be delegated include National Pollutant Discharge Elimination 
System permitting, enforcement, establishment of waste load allocations and total 
maximum daily loads and establishment and implementation of water quality 
standards but not other Federal Water Pollution Control Act matters such as water 
quality certification.  The restriction imposed by this paragraph may not be 
interpreted to be more restrictive than federal law or the regulations of the United 
States Environmental Protection Agency. 
Sec. 2.  38 MRSA §341-C, sub-§8, as amended by PL 1997, c. 794, Pt. A, §3, is 
further amended to read: 
8.  Federal standards.  When the State receives authority to grant permits under the 
Federal Water Pollution Control Act, 33 United States Code 1982, Section 1251 et seq., 
as amended, a person may not serve as a A board member who may not participate in the 
review of or act on an application for a National Pollutant Discharge Elimination System 
permit or the modification, renewal or appeal of a permit under Section 402 of the 
Federal Water Pollution Control Act, 33 United States Code, Section 1342 if the board 
member receives, or during the previous 2 years prior to appointment has received, a 
significant portion of income directly or indirectly from license or permit holders or 
applicants for a license or permit under the Federal Water Pollution Control Act National 
Pollutant Discharge Elimination System.  For the purposes of this section, "a significant 
portion of income" means 10% or more of gross personal income for a calendar year, 
except that it means 50% or more if the recipient is over 60 years of age and is receiving 
that portion under retirement, pension or similar arrangement.  Board members whose 
participation is restricted under this paragraph shall recuse themselves and may not 
participate in any National Pollutant Discharge Elimination System matter as long as the 
restriction applies.  The recusal must be from all National Pollutant Discharge 
Elimination System permitting, enforcement, establishment of waste load allocations and 
total maximum daily loads and establishment and implementation of water quality 
standards but not other Federal Water Pollution Control Act matters such as water quality 
certification.  The restriction imposed by this subsection may not be interpreted to be 
more restrictive than federal law or the regulations of the United States Environmental 
Protection Agency. 
Emergency clause.  In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill removes a statutory restriction on a person's serving as Commissioner of 
Environmental Protection if the person has received a significant portion of income 
directly or indirectly from license or permit holders or applicants for a license or permit 
under the Federal Water Pollution Control Act.  The bill provides that the commissioner, 
employees of the Department of Environmental Protection and members of the Board of 
Environmental Protection may participate in National Pollutant Discharge Elimination 
System matters to the extent permitted under federal law and permits a commissioner 
who is restricted from participation to delegate duties to a department employee who is 
not restricted from participation.