An Act To Make Minor Adjustments to Laws Administered by the Department of Environmental Protection
Maine Legislature, Session 125, LD 1738
Committee: Environment and Natural Resources
Sponsors: HAMPER
Amends: 38 MRSA §341-H, 38 MRSA §342, 38 MRSA §344, 38 MRSA §347-A, 38 MRSA §348, 38 MRSA §480-Q, 38 MRSA §480-Y, 38 MRSA §570-E, 38 MRSA §590-A, 38 MRSA §1400

Legislative Document 
No. 1738
H.P. 1283 
House of Representatives, January 4, 2012
An Act To Make Minor Adjustments to 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 Environment and Natural Resources suggested and ordered 
printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative HAMPER of Oxford. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  38 MRSA §341-H, sub-§1, as enacted by PL 2011, c. 304, Pt. H, §14, is 
amended to read: 
1.  Rule-making authority of the board.  Notwithstanding any other provision of 
this Title, and except as provided in this subsection, the board shall adopt, amend or 
repeal only those rules of the department designated as major substantive rules pursuant 
to Title 5, chapter 375, subchapter 2-A.  The board shall also adopt, amend and repeal 
routine technical rules as necessary for the conduct of the department's board's business, 
including the processing of applications, the conduct of hearings and other administrative 
matters. 
Sec. 2.  38 MRSA §342, sub-§11-B, as enacted by PL 2011, c. 304, Pt. H, §17, is 
amended to read: 
11-B.  Revoke or suspend licenses and permits.  After written notice and 
opportunity for a hearing pursuant to Title 5, chapter 375, subchapter 4, the commissioner 
may act to revoke or suspend a license or recommend that the board modify or take 
corrective action on a license whenever the commissioner finds that: 
A.  The licensee has violated any condition of the license; 
B.  The licensee has obtained a license by misrepresenting or failing to disclose fully 
all relevant facts; 
C.  The licensed discharge or activity poses a threat to human health or the 
environment; 
D.  The license fails to include any standard or limitation legally required on the date 
of issuance; 
E.  There has been a change in any condition or circumstance that requires revocation 
or suspension of a license; 
F.  There has been a change in any condition or circumstance that requires a 
corrective action or a temporary or permanent modification of the terms of the 
license; 
G.  The licensee has violated any law administered by the department; or 
H.  The license fails to include any standard or limitation required pursuant to the 
federal Clean Air Act Amendments of 1990. 
For the purposes of this subsection, "license" includes any license, permit, order, approval 
or certification issued by the department and "licensee" means the holder of the license. 
Sec. 3.  38 MRSA §342, sub-§11-C is enacted to read: 
11-C.  Modification or corrective action.  The commissioner may recommend that 
the board modify or take corrective action on a license in accordance with section 341-D, 
subsection 3. 
Sec. 4.  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 or permit renewals, amendments, revisions, surrenders and transfers.  
For purposes of this section, a request for a license or permit renewal, amendment, 
revision, surrender or transfer is considered an application that, unless specifically 
exempted by law, is subject to a decision by the department. 
Sec. 5.  38 MRSA §347-A, sub-§5, as amended by PL 2007, c. 292, §12, is 
further amended to read: 
5.  Enforcement.  All orders of the department and administrative consent 
agreements entered into by the department may be enforced by the Attorney General and 
or the department.  If any order of the department is not complied with, the commissioner 
shall immediately notify the Attorney General. 
Sec. 6.  38 MRSA §347-A, sub-§6, ¶A, as enacted by PL 1997, c. 794, Pt. A, §5, 
is amended to read: 
A.  In the case of an administrative consent agreements agreement, notice of the 
proposed agreement must be filed with the board and notice of the filing must be 
placed on the board's agenda posted on the department's publicly accessible website 
at least 30 days before the board commissioner takes any action on the agreement.  
The Attorney General and the department shall receive and consider, and the 
department shall provide the board with summaries of, any written comments relating 
to the proposed agreement. 
Sec. 7.  38 MRSA §348, sub-§1, as amended by PL 2007, c. 292, §13, is further 
amended to read: 
1.  General.  In the event of a violation of any provision of the laws administered by 
the department or of any order, regulation, license, permit, approval, administrative 
consent agreement or decision of the board or commissioner or decree of the court, as the 
case may be, the Attorney General or the department may institute injunction proceedings 
to enjoin any further violation thereof, a civil or criminal action or any appropriate 
combination thereof without recourse to any other provision of law administered by the 
department. 
Sec. 8.  38 MRSA §480-Q, sub-§31, as reallocated by RR 2011, c. 1, §61, is 
amended to read: 
31.  Minor expansions of structures in a coastal sand dune system.  Expansion of 
an existing residential or commercial building structure in a coastal sand dune system if: 
A.  The footprint of the expansion is contained within an existing impervious area; 
B.  The footprint of the expansion is no further seaward than the existing building 
structure; 
C.  The height of the expansion is within the height restriction of any applicable law 
or ordinance; and 
D.  The expansion conforms to the standards for expansion of a building structure 
contained in the municipal shoreland zoning ordinance adopted pursuant to article 
2-B. 
Sec. 9.  38 MRSA §480-Y, sub-§3, ¶¶A and C, as enacted by PL 1995, c. 659, 
§1, are amended to read: 
A.  The pond, dams, inlets and outlets must be designed by a professional engineer to 
United States Natural Resources Conservation Service standards. 
C.  The For a pond that is constructed in a river, stream or brook, the pond outlet 
must be designed to passively discharge a minimum flow equal to inflow or the 
site-specific aquatic base flow, whichever is less, at all times.  For a pond that is 
constructed adjacent to a river, stream or brook and that uses an inlet pipe or trench 
from the river, stream or brook, the inlet must be constructed to maintain the 
site-specific aquatic base flow.  The site-specific aquatic base flow must be that 
specified by the department following consultation with the Department of Inland 
Fisheries and Wildlife, the United States Natural Resources Conservation Service and 
other qualified advisors during the site assessment. 
Sec. 10.  38 MRSA §480-Y, sub-§4, ¶A, as enacted by PL 1995, c. 659, §1, is 
amended to read: 
A.  An application must be filed with the department and must include the following: 
(1)  The application cover sheet, as provided by the department; 
(2)  The United States Geological Survey topographical map with the boundaries 
of the farm and the pond site clearly marked; 
(3)  A photograph of the stream at the proposed dam site; 
(4)  A copy of the irrigation plan for the farm; 
(5)  Site plans showing existing and proposed topography, stream channel 
location, existing wetland boundaries, maximum and normal pool elevation, 
normal pool elevation elevations for a pond in a river, stream or brook, dam 
footprints, pond inlet and outlet location locations, emergency spillway location, 
access roads, stockpile locations and buffer strips; 
(6)  Cross sections through the dam and outlet structure, including proposed 
maximum pool elevation and normal pool elevation; 
(7)  A plan to maintain minimum flow downstream, including any calculations 
used to create the plan; 
(8)  A complete erosion control plan using practices contained in the "Maine 
Erosion and Sediment Control Handbook for Construction:  Best Management 
Practices" (1991) unless otherwise approved or required by the department.  The 
erosion control plan must include a narrative with a sequence for implementing 
the plan, provisions to inspect and maintain erosion controls and a site plan 
showing locations of control measures.  The plan must include provisions for 
maintaining a dry construction site.  These provisions may consist of construction 
during a no-flow period, a temporary cofferdam or a stream diversion.  The 
erosion control plan must also include provisions for dewatering and disposal of 
dredged and excavated soil material.  The disposal of soil material dredged from 
the stream must comply with the requirements of the State's solid waste 
management rules; 
(9)  Test pit logs and test results from a minimum of 2 test pits dug in the 
footprint of the dam and results of tests done under the direction of a professional 
engineer on the dam fill material; and 
(10)  A copy of the property deed, lease, purchase and sale agreement or other 
legal document establishing that the applicant has title or right to or interest in the 
property proposed for pond development. 
All design materials used to show that the dam design meets the standards of the 
general permit must be signed and stamped by a professional engineer. 
Sec. 11.  38 MRSA §570-E, as amended by PL 1999, c. 334, §7, is repealed. 
Sec. 12.  38 MRSA §590-A, first ¶, as enacted by PL 1987, c. 279, is amended to 
read: 
The term of air emission licenses is 5 10 years, except that the term of licenses for air 
contaminant sources subject to the state permitting provisions of 40 Code of Federal 
Regulations, Part 70 is 5 years and licenses issued pursuant to rules adopted pursuant to 
section 580-B, subsection 4, paragraph D have no term.  The board may establish, by 
rule, shorter license terms for the following source categories as it deems considers 
necessary to protect the public health, safety and welfare: 
Sec. 13.  38 MRSA §1400 is enacted to read: 
§1400.  Rules 
Subject to Title 5, chapter 375, the department may adopt rules as it determines 
necessary to implement this chapter.  Rules adopted pursuant to this section are major 
substantive rules as defined in Title 5, chapter 375, subchapter 2-A. 
Sec. 14.  Transition.  An air emission license issued for a term of 5 years pursuant 
to the Maine Revised Statutes, Title 38, section 590-A that is in effect on the effective 
date of this Act is effective for 10 years upon renewal of that license. 
SUMMARY 
This bill makes minor changes to the laws administered by the Department of 
Environmental Protection to remove inconsistencies and inefficiencies and make 
grammatical changes.  
The bill makes 2 substantive changes.  The term of an air emission license is changed 
from 5 years to 10 years, with certain exceptions, including a term of 5 years for a license 
for an air contaminant source subject to the provisions of 40 Code of Federal Regulations, 
Part 70 and no term for a license issued pursuant to the carbon dioxide cap-and-trade 
program under the Maine Revised Statutes, Title 38, section 580-B.  The bill clarifies that 
the Commissioner of Environmental Protection need not provide notice and opportunity 
for hearing before recommending that the board modify or take corrective action.  The 
board's process, in Title 38, section 341-D, subsection 3, provides opportunity for 
hearing.