An Act To Protect the Penobscot River and Penobscot Bay from Mercury Contamination
Maine Legislature, Session 129, LD 1287
Committee: Environment and Natural Resources
Sponsors: DODGE, MIRAMANT, ACKLEY, BEEBE-CENTER, CUDDY, DOUDERA, EVANGELOS, PEBWORTH, PLUECKER, RISEMAN
Amends: 38 MRSA §480-D

Legislative Document
No. 1287
H.P. 929
House of Representatives, March 14, 2019
An Act To Protect the Penobscot River and Penobscot Bay from 
Mercury Contamination
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
ROBERT B. HUNT
Clerk
Presented by Representative DODGE of Belfast.
Cosponsored by Senator MIRAMANT of Knox and
Representatives: ACKLEY of Monmouth, BEEBE-CENTER of Rockland, CUDDY of 
Winterport, DOUDERA of Camden, EVANGELOS of Friendship, PEBWORTH of Blue Hill, 
PLUECKER of Warren, RISEMAN of Harrison.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §480-D, sub-§3, as amended by PL 2011, c. 653, §15 and 
affected by §33, is further amended to read:
3.  Harm to habitats; fisheries.  The activity will not unreasonably harm any 
significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered 
plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine or 
marine fisheries or other aquatic life.
In determining whether mining, as defined in section 490-MM, subsection 11, will 
comply with this subsection, the department shall review an analysis of alternatives 
submitted by the applicant.  For purposes of this subsection, a practicable alternative to 
mining, as defined in section 490-MM, subsection 11, that is less damaging to the 
environment is not considered to exist.  The department may consider alternatives 
associated with the activity, including alternative design and operational measures, in its 
evaluation of whether the activity avoided and minimized impacts to the maximum extent 
practicable.
In determining whether dredging in the Penobscot River south of the former HoltraChem 
Manufacturing Company site in the Town of Orrington and Penobscot Bay north of the 
southern tip of Islesboro Island will comply with this subsection, the department shall 
review core sample analysis submitted by the applicant.  The applicant shall take core 
samples using the following sampling methodology.  A minimum of 10 core samples 
must be collected for an area proposed to be dredged.  Compositing of core samples may 
not be permitted prior to testing.  Each separate core sample must be 90 centimeters in 
depth or as deep as the area permits, whichever is less.  All samples must be specifically 
tested for the presence of mercury by testing each one-centimeter segment from the 
surface of the core down to 20 centimeters; each 2-centimeter segment from 21 to 40 
centimeters; and each 5-centimeter segment from 41 to 90 centimeters or to the actual 
depth of the core sample if less than 90 centimeters.  The department may not approve an 
application for dredging in the Penobscot River or Penobscot Bay that has not used this 
methodology for testing and core sampling.  The department may not approve an 
application for dredging if the dredging is not necessary for maintenance of navigation.  
Dredging may be permitted only if the applicant can demonstrate that dredging can and 
will be conducted in a manner that will not resuspend or disturb buried mercury.
In determining whether there is unreasonable harm to significant wildlife habitat, the 
department may consider proposed mitigation if that mitigation does not diminish in the 
vicinity of the proposed activity the overall value of significant wildlife habitat and 
species utilization of the habitat and if there is no specific biological or physical feature 
unique to the habitat that would be adversely affected by the proposed activity.  For 
purposes of this subsection, "mitigation" means any action taken or not taken to avoid, 
minimize, rectify, reduce, eliminate or compensate for any actual or potential adverse 
impact on the significant wildlife habitat, including the following:
A.  Avoiding an impact altogether by not taking a certain action or parts of an action;
B.  Minimizing an impact by limiting the magnitude, duration or location of an 
activity or by controlling the timing of an activity;
C.  Rectifying an impact by repairing, rehabilitating or restoring the affected 
environment;
D.  Reducing or eliminating an impact over time through preservation and 
maintenance operations during the life of the project; or
E.  Compensating for an impact by replacing the affected significant wildlife habitat.
Sec. 2.  38 MRSA §480-D, sub-§9, as amended by PL 2001, c. 248, §1, is further 
amended to read:
9.  Dredging.  If the proposed activity involves dredging, dredge spoils disposal or 
transporting dredge spoils by water, the applicant must demonstrate that the 
transportation route minimizes adverse impacts on the fishing industry and that the 
disposal site is ecologically and geologically suitable.  The Commissioner of Marine 
Resources shall provide the department with an assessment of the impacts on the fishing 
industry of a proposed dredging operation in the coastal wetlands.  The assessment must 
consider impacts to the area to be dredged and impacts to the fishing industry of a 
proposed route to transport dredge spoils to an ocean disposal site, as well as impacts to 
the fishing industry caused by dredging or disposal of dredge spoils, whether or not the 
dredge spoils contain contaminants or toxic substances.  The Commissioner of Marine 
Resources may hold a public hearing on the proposed dredging operation.  In determining 
if a hearing is to be held, the Commissioner of Marine Resources shall consider the 
potential impacts of the proposed dredging operation on fishing in the area to be dredged.  
If a hearing is held, it must be within at least one of the municipalities in which the 
dredging operation would take place.  If the Commissioner of Marine Resources 
determines that a hearing is not to be held, the Commissioner of Marine Resources must 
publish a notice of that determination in a newspaper of general circulation in the area 
proposed for the dredging operation.  The notice must state that the Commissioner of 
Marine Resources will accept verbal and written comments in lieu of a public hearing.  
The notice must also state that if 5 or more persons request a public hearing within 30 
days of the notice publication, the Commissioner of Marine Resources will hold a 
hearing.  If 5 or more persons request a public hearing within 30 days of the notice 
publication, the Commissioner of Marine Resources must hold a hearing.  In making its 
determination under this subsection, the department must take into consideration the 
assessment provided by the Commissioner of Marine Resources.  The permit must 
require the applicant to:
A.  Clearly mark or designate the dredging area, the spoils disposal route and the 
transportation route;
B.  Publish in a newspaper of general circulation in the area adjacent to the route the 
approved transportation route of the dredge spoils; and
C.  Publish in a newspaper of general circulation in the area adjacent to the route a 
procedure that the applicant will use to respond to inquiries regarding the loss of 
fishing gear during the dredging operation.;
D.  Provide written notice to all associations known to represent commercial 
fishermen in the State or in the specific geographic area in which dredging or dredge 
spoils disposal is to occur; and
E.  Provide written notice to all municipalities in which dredging, dredge spoils 
disposal or transporting dredge spoils by water is to occur.
Sec. 3.  38 MRSA §480-D, sub-§9-A is enacted to read:
9-A.  Dredging and dredge spoils disposal in Penobscot River and Penobscot 
Bay, north of the southern tip of Islesboro Island.  Dredging may be permitted in the 
Penobscot River south of the former HoltraChem Manufacturing Company site in the 
Town of Orrington or Penobscot Bay north of the southern tip of Islesboro Island only if 
it is demonstrated to be necessary to maintain navigation.  However, if core sampling 
demonstrates the presence of buried mercury, dredging may not be permitted if it cannot 
be performed without disturbing or resuspending buried mercury in the aquatic 
environment.  All dredge spoils from dredging conducted under this subsection must be 
safely disposed of on land, at a site suitable for the level of contamination found during 
core sampling under subsection 3.  Dredge spoils may not be disposed of in the aquatic 
environment of the Penobscot River or Penobscot Bay.
SUMMARY
This bill requires dredging in the Penobscot River south of the former HoltraChem 
Manufacturing Company site in the Town of Orrington and in Penobscot Bay north of the 
southern tip of Islesboro Island to comply with certain sampling requirements prior to 
being permitted under the Natural Resources Protection Act.