An Act To Implement Recommendations Resulting from a State Government Evaluation Act Review of the Department of Environmental Protection by the Joint Standing Committee on Environment and Natural Resources
Maine Legislature, Session 128, LD 1808
Committee: Environment and Natural Resources
Amends: 38 MRSA §349, 38 MRSA §589, 38 MRSA §2124-A

Legislative Document
No. 1808
H.P. 1254
House of Representatives, January 29, 2018
An Act To Implement Recommendations Resulting from a State 
Government Evaluation Act Review of the Department of 
Environmental Protection by the Joint Standing Committee on 
Environment and Natural Resources
Reported by Representative TUCKER of Brunswick for the Joint Standing Committee on 
Environment and Natural Resources pursuant to the Maine Revised Statutes, Title 3, section 
955, subsection 4.
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed pursuant to Joint Rule 218.
ROBERT B. HUNT
Clerk
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §349, sub-§2-A, as enacted by PL 1997, c. 570, §1, is amended 
to read:
2-A.  Supplemental environmental projects.  In settling a civil enforcement action 
for any violation of any of the provisions of the laws administered by the department, 
including, without limitation, a violation of the terms or conditions of any order, rule, 
license, permit, approval or decision of the board or commissioner, the parties may agree 
to a supplemental environmental project that mitigates not more than 80% up to 100% of 
the assessed penalty.  "Supplemental environmental project" means an environmentally 
beneficial project primarily benefiting public health or the environment that a violator is 
not otherwise required or likely to perform.
A.  An eligible supplemental environmental project is limited to the following 
categories:
(1)  Pollution prevention projects that eliminate all or a significant portion of 
pollutants at the point of generation;
(2)  Pollution reduction projects that significantly decrease the release of 
pollutants into a waste stream at the point of discharge to a point significantly 
beyond levels required for compliance;
(3)  Environmental enhancement projects in the same ecosystem or geographic 
area of the violation that significantly improve an area beyond what is required to 
remediate any damage caused by the violation that is the subject of the 
enforcement action;
(4)  Environmental awareness projects substantially related to the violation that 
provide training, publications or technical support to members of the public 
regulated by the department;
(5)  Scientific research and data collection projects that advance the scientific 
basis on which regulatory decisions are made;
(6)  Emergency planning and preparedness projects that assist state or local 
emergency response and planning entities in preparing or responding to 
emergencies; and
(7)  Public health projects that provide a direct and measurable benefit to public 
health.
B.  Supplemental environmental projects may not be used for the following 
situations:
(1)  Repeat violations of the same or a substantially similar law administered by 
the department by the same person;
(2) When a project is required by law;
(3)  If the violator had previously planned and budgeted for the project;
(4)  To offset any calculable economic benefit of noncompliance;
(5)  If the violation is the result of reckless or intentional conduct; or
(6)  If the project primarily benefits the violator.
Any settlement that includes a supplemental environmental project must provide that 
expenditures are not tax deductible and are ineligible for certification as tax exempt 
pollution control facilities pursuant to Title 36, chapters 105 and 211.
Sec. 2.  38 MRSA §589, sub-§3, as amended by PL 1993, c. 464, §1, is further 
amended to read:
3.  Emission monitoring devices.  Except as provided in this subsection, failure by a 
person to register, install, maintain and use emission monitoring devices or to file reports 
from those devices renders that person liable to the penalties prescribed in section 349.  
Emission monitoring devices must record accurate and reliable data during all source-
operating time except for periods when emission monitoring devices are subject to 
established quality assurance and quality control procedures or to unavoidable 
malfunction.  In any enforcement action brought by the department, the burden of proof is 
on the licensee to demonstrate that the failure of emission monitoring devices to record 
accurate and reliable data was due to an unavoidable malfunction or the performance of 
established quality assurance and quality control procedures on the monitoring system.
A.  The department may not initiate enforcement action pursuant to section 349 
against any person for failure to operate a continuous emission monitoring system for 
gaseous emissions as long as the system is recording accurate and reliable data at 
least 90% 95% of the source-operating time in each quarter of the calendar year and 
the person can demonstrate to the satisfaction of the department that the failure of the 
system to record accurate and reliable data during any period of time was due to the 
performance of established quality assurance and quality control procedures or 
unavoidable malfunctions.  If the continuous emission monitoring system for gaseous 
emissions is recording accurate and reliable data less than 90% 95% of source-
operating time within any quarter of the calendar year, the department may initiate 
enforcement action and may include in that enforcement action any period of time 
that the continuous emission monitoring system was not recording accurate and 
reliable data during that quarter unless the licensee can demonstrate to the satisfaction 
of the department that the failure of the system to record accurate and reliable data 
was due to the performance of established quality assurance and quality control 
procedures or unavoidable malfunctions.
B.  The department may not initiate enforcement action pursuant to section 349 
against any person for failure to operate a continuous opacity monitoring system as 
long as the system is recording accurate and reliable data at least 95% of the source-
operating time in each quarter of the calendar year, excluding time periods when the 
licensee is performing quality assurance and quality control procedures on the system 
that are required by the department, and the person can demonstrate to the 
satisfaction of the department that the failure of the system to record accurate and 
reliable data during any period of time was due to the performance of established 
quality assurance and quality control procedures or unavoidable malfunctions.  If the 
continuous opacity monitoring system is recording accurate and reliable data less 
than 95% of the source-operating time within any quarter of the calendar year, the 
department may initiate enforcement action and may include in that enforcement 
action any period of time that the continuous opacity monitoring system was not 
recording accurate and reliable data during that quarter unless the licensee can 
demonstrate to the satisfaction of the department that the failure of the system to 
record accurate and reliable data was due to the performance of established quality 
assurance and quality control procedures or unavoidable malfunctions.
Sec. 3.  38 MRSA §2124-A, first ¶, as amended by PL 2011, c. 655, Pt. GG, §31 
and affected by §70, is further amended to read:
By January 1, 2013 2020 and annually biennially thereafter, the department shall 
submit a report to the joint standing committee of the Legislature having jurisdiction over 
environmental and natural resources matters and the Governor setting forth information 
on statewide generation of solid waste, statewide recycling rates and available disposal 
capacity for solid waste.
SUMMARY
This bill, which is reported out by the Joint Standing Committee on Environment and 
Natural Resources pursuant to the Maine Revised Statutes, Title 3, section 955, 
subsection 4, implements the recommendations resulting from the committee's State 
Government Evaluation Act review of the Department of Environmental Protection as 
follows:
1.  It removes a statutory provision prohibiting a repeat violator of the same 
environmental law from taking advantage of a supplemental environmental project to 
mitigate an assessed civil penalty;
2.  It allows a violator of an environmental law to offset up to 100% of an assessed 
civil penalty by conducting a supplemental environmental project.  Under current law, 
such a violator may offset no more than 80% of an assessed civil penalty by conducting a 
supplemental environmental project;
3.  It clarifies 2 statutory exemptions from the requirement that air contamination 
sources maintain continuous emission monitoring systems to mitigate a conflict between 
the current statutory provisions on continuous emission monitoring and existing 
applicable federal regulations; and
4.  It provides that the solid waste generation and disposal capacity report the 
department currently must submit annually to the joint standing committee of the 
Legislature having jurisdiction over environmental and natural resources matters must be 
submitted only biennially.