An Act To Ensure Transparency and Accountability in Decisions by the Department of Environmental Protection
Maine Legislature, Session 126, LD 1731
Committee: Environment and Natural Resources
Sponsors: GRANT, CAIN, COOPER, GRAHAM, HUBBELL, KORNFIELD, MASTRACCIO, POWERS, SCHNECK, GRATWICK
Amends: 38 MRSA §341-B, 38 MRSA §341-D, 38 MRSA §341-H, 38 MRSA §342, 38 MRSA §490-N, 38 MRSA §585-A, 38 MRSA §638

Legislative Document 
No. 1731 
H.P. 1239 
House of Representatives, January 16, 2014 
An Act To Ensure Transparency and Accountability in Decisions by 
the Department of Environmental Protection 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203. 
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed. 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative GRANT of Gardiner. 
Cosponsored by Senator CAIN of Penobscot and 
Representatives: COOPER of Yarmouth, GRAHAM of North Yarmouth, HUBBELL of Bar 
Harbor, KORNFIELD of Bangor, MASTRACCIO of Sanford, POWERS of Naples, 
SCHNECK of Bangor, Senator: GRATWICK of Penobscot. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  38 MRSA §341-B, as amended by PL 2011, c. 304, Pt. H, §1, is further 
amended to read: 
§341-B.  Purpose of the board 
The purpose of the Board of Environmental Protection is to provide informed, 
independent and timely decisions on the interpretation, administration and enforcement of 
the laws relating to environmental protection and to provide for credible, fair and 
responsible public participation in department decisions.  The board shall fulfill its 
purpose through major substantive rulemaking, decisions on selected permit applications, 
review of the commissioner's enforcement actions, decisions on appeals of the 
commissioner's licensing and enforcement actions and recommending changes in the law 
to the Legislature. 
Sec. 2.  38 MRSA §341-D, sub-§1-C, as enacted by PL 2011, c. 304, Pt. H, §5, is 
repealed and the following enacted in its place: 
1-C.  Rulemaking.  Subject to the Maine Administrative Procedure Act, the board 
shall adopt, amend or repeal reasonable rules and emergency rules necessary for the 
interpretation, implementation and enforcement of any provision of law that the 
department is charged with administering.  The board shall also adopt, amend and repeal 
rules necessary for the conduct of its business. 
The department shall identify in its regulatory agenda, when feasible, a proposed rule or 
provision of a proposed rule that is anticipated to be more stringent than the federal 
standard, if an applicable federal standard exists. 
During the consideration of any proposed rule by the board, when feasible, and using 
information available to it, the department shall identify provisions of the proposed rule 
that the department believes would impose a regulatory burden more stringent than the 
burden imposed by the federal standard, if such a federal standard exists, and shall 
explain in a separate section of the basic statement the justification for the difference 
between the agency rule and the federal standard. 
Notwithstanding Title 5, chapter 375, subchapter 2, the board shall accept and consider 
additional public comment on a proposed rule following the close of the formal rule-
making comment period at a meeting that is not a public hearing only if the additional 
public comment is directly related to comments received during the formal rule-making 
comment period or is in response to changes to the proposed rule.  Public notice of the 
meeting must comply with Title 1, section 406 and state that the board will accept 
additional public comment on the proposed rule at the meeting. 
Sec. 3.  38 MRSA §341-D, sub-§6, as repealed and replaced by PL 2011, c. 304, 
Pt. H, §11, is repealed. 
Sec. 4.  38 MRSA §341-D, sub-§6-A is enacted to read: 
6-A.  Enforcement.  The board shall: 
A.  Advise the commissioner on enforcement priorities and activities; 
B.  Advise the commissioner on the adequacy of penalties and enforcement activities; 
C.  Approve administrative consent agreements pursuant to section 347-A, subsection 
1; and 
D.  Hear appeals of emergency orders pursuant to section 347-A, subsection 3. 
Sec. 5.  38 MRSA §341-H, as amended by PL 2011, c. 538, §1, is repealed. 
Sec. 6.  38 MRSA §342, sub-§9, as amended by PL 2011, c. 304, Pt. H, §15, is 
further amended to read: 
9.  Rules.  The commissioner may adopt, amend or repeal, in accordance with section 
341-H, routine technical rules under Title 5, chapter 375, subchapter 2-A and shall submit 
to the board new or amended major substantive rules for its adoption submit to the board 
new or amended rules for its adoption. 
Sec. 7.  38 MRSA §342, sub-§11-A, as amended by PL 2011, c. 304, Pt. H, §16, 
is further amended to read: 
11-A.  Recommendations and assistance to board.  The commissioner shall make 
recommendations to the board regarding proposed major substantive rules; permit and 
license applications over which the board has jurisdiction; modification or corrective 
action on licenses; appeals of license and permit decisions; and other matters considered 
by the board.  The commissioner shall also provide the board with the technical services 
of the department. 
Sec. 8.  38 MRSA §490-NN, sub-§1, ¶B, as enacted by PL 2011, c. 653, §23 and 
affected by §33, is amended to read: 
B.  In addition to other powers granted to it, the department shall adopt rules to carry 
out its duties under this article, including, but not limited to, standards for 
exploration, advanced exploration, construction, operation, closure, post-closure 
monitoring, reclamation and remediation.  Except as otherwise provided, rules 
adopted under this article are major substantive rules for purposes of Title 5, chapter 
375, subchapter 2-A and are subject to section 341-H. 
Sec. 9.  38 MRSA §585-A, last ¶, as amended by PL 1999, c. 107, §1, is further 
amended to read: 
The department shall confer with the joint standing committee of the Legislature 
having jurisdiction over natural resource matters before it proposes any revisions to  
submit to the board for approval any proposal to revise the state implementation plan, 
required in the federal Clean Air Act, Section 110, 42 United States Code, Section 7410, 
that would require the State to implement new emissions reduction strategies or programs 
or substantially revise or terminate existing emissions reduction strategies or programs.  
Notwithstanding any other parts of this section, rules adopted pursuant to this section 
relating to motor vehicle fuel standards are major substantive rules as defined in Title 5, 
chapter 375, subchapter II-A 2-A. 
Sec. 10.  38 MRSA §638 is enacted to read: 
§638.  Notice of relicensing deadline 
The department shall notify the joint standing committee of the Legislature having 
jurisdiction over natural resources matters of all federal relicensing deadlines for dams 
located in the State.  The department shall notify the committee no later than 60 days 
before each deadline and present to the committee the department's plan to address each 
deadline. 
SUMMARY 
This bill restores to the Board of Environmental Protection the responsibility to 
review and approve routine technical rules and to review enforcement actions proposed 
by the Commissioner of Environmental Protection.  These responsibilities were removed 
from the Board of Environmental Protection in 2011.  The bill also requires the 
Department of Environmental Protection to receive approval from the Board of 
Environmental Protection for revisions to the state implementation plan, required in the 
federal Clean Air Act.  Current law requires the department to confer with the joint 
standing committee of the Legislature having jurisdiction over natural resource matters 
before it proposes any revisions to the state implementation plan. 
It also requires the Department of Environmental Protection to notify the joint 
standing committee of the Legislature having jurisdiction over natural resources matters 
of all federal relicensing deadlines for dams located in the State.  The department shall 
notify the committee no later than 60 days before each deadline and present to the 
committee the department's plan to address each deadline.