An Act To Make Minor Changes and Corrections to Statutes Administered by or Concerning the Department of Environmental Protection
Maine Legislature, Session 129, LD 1802
Committee: Environment and Natural Resources
Sponsors: CAMPBELL
Amends: 22 MRSA §567, 38 MRSA §464, 38 MRSA §1304, 38 MRSA §1365

Legislative Document
No. 1802
H.P. 1283
House of Representatives, May 30, 2019
An Act To Make Minor Changes and Corrections to Statutes 
Administered by or Concerning 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.
ROBERT B. HUNT
Clerk
Presented by Representative CAMPBELL of Orrington.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA §567, sub-§1, as amended by PL 2017, c. 407, Pt. A, §68, is 
further amended to read:
1.  Acceptable data.  Except as provided in this subsection, 6 months after the 
adoption of rules specified in subsection 2, certification is required of any commercial, 
industrial, municipal, state or federal laboratory that analyzes water, soil, air, solid or 
hazardous waste, or radiological samples for the use of programs of the department or the 
Department of Environmental Protection, except as provided under chapter 411, the 
Maine Medical Laboratory Act; Title 26, chapter 7, subchapter 3-A, Substance Use 
Testing; and Title 29-A, section 2524, administration of tests to determine an alcohol 
level or drug concentration. 
A laboratory operated by a waste discharge facility licensed pursuant to Title 38, section 
may analyze waste discharges for total suspended solids, settleable solids, biological 
or biochemical oxygen demand, chemical oxygen demand, pH, chlorine residual, fecal 
coliform, E. coli, Enterococcus, conductivity, color, temperature and dissolved oxygen 
without being certified under this section.  The exception provided under this paragraph 
applies to a laboratory testing its own samples for pollutants listed in its permit or license; 
pretreatment samples; and samples from other wastewater treatment plants for up to 60 
days per year.  The time period provided in this paragraph, which is a maximum period 
for each treatment plant for which analysis is provided, may be extended by 
memorandum of agreement between the Department of Environmental Protection and the 
Health and Environmental Testing Laboratory.
Sec. 2.  38 MRSA §464, sub-§5, as enacted by PL 1985, c. 698, §15, is amended 
to read:
5.  Rulemaking.  In accordance with the Maine Administrative Procedure Act, the 
board commissioner shall promulgate adopt rules necessary to implement the water 
quality classification system established by this article.  In promulgating adopting rules, 
the board commissioner shall solicit and consider, in addition to any other materials, 
information on the economic and environmental impact of those rules. 
Rules shall must be promulgated adopted by January 1, 1987, and as necessary thereafter, 
and shall must include, but are not limited to, sampling and analytical methods, protocols 
and procedures for satisfying the water quality criteria, including evaluation of the impact 
of any discharge on the resident biological community. 
Rules adopted pursuant to this subsection shall become effective upon adoption.  Rules 
adopted pursuant to this subsection shall must be submitted to the joint standing 
committee of the Legislature having jurisdiction over natural resources matters for review 
during the next regular session of the Legislature following adoption.  This committee 
may submit legislation it deems the committee considers necessary to clarify legislative 
intent regarding rules adopted pursuant to this subsection.  If the committee takes no 
action, the rules shall continue in effect. 
Sec. 3.  38 MRSA §1304, sub-§1, as amended by PL 1989, c. 585, Pt. E, §5, is 
further amended to read:
1.  Rules; waste management.  Subject to the Maine Administrative Procedure Act, 
Title 5, chapter 375 and except as otherwise provided in this section, the board 
commissioner may adopt, amend and enforce rules as it deems the commissioner 
determines necessary to govern waste management, including the location, establishment, 
construction and alteration of waste facilities as the facility affects the public health and 
welfare or the natural resources of the State. The rules shall must be designed to minimize 
pollution of the State's air, land and surface and ground water resources, prevent the 
spread of disease or other health hazards, prevent contamination of drinking water 
supplies and protect public health and safety. In adopting these rules, the board 
commissioner shall also consider economic impact, technical feasibility and such 
differences as are created by population, hazardous or solid waste, sludge or septage 
volume and geographic location. 
Sec. 4.  38 MRSA §1304, sub-§1-A, as amended by PL 1999, c. 385, §3, is 
further amended to read:
1-A.  Rules; transportation.  The board commissioner shall adopt rules relating to 
the transportation of solid waste, including, without limitation: 
A.    Licensing categories of transporters of septage, used motor vehicle tires and 
construction or demolition debris, conveyances used for the transportation of septage, 
used motor vehicle tires and construction or demolition debris and the operators of 
these conveyances as the board commissioner finds necessary to effect sound waste 
management;
B.    Establishment of transporter licensing and conveyance registration fees that are 
sufficient to recover all costs of administering, monitoring compliance with and 
enforcing the provisions of this subsection and which fees must be paid to the Maine 
Environmental Protection Fund;
C.    A manifest system for categories of solid waste that must provide a means to 
account for septage, used motor vehicle tires and construction or demolition debris 
handled, transported and disposed of in the State; and
D.    Evidence of financial capacity of transporters to protect public health, safety and 
welfare and the environment, including, without limitation: 
(1)  Liability insurance; 
(2)  Performance bonding; and 
(3)  Financial ability to comply with statutory and regulatory requirements or 
conditions.
Sec. 5.  38 MRSA §1304, sub-§1-B, as enacted by PL 1987, c. 517, §9, is 
amended to read:
1-B.  Handling of special waste.  The board commissioner may adopt rules relating 
to the handling of special waste, including, without limitation:
A.  Containerization and labeling of special waste;
B.  Reporting on handling of special waste;
C.  Waste which that is not compatible; and
D.  A marking system, by categories of waste, to clearly identify vehicles 
transporting solid waste.
Sec. 6.  38 MRSA §1304, sub-§10, as amended by PL 1987, c. 517, §11, is 
further amended to read:
10.  Legislative review. Rules adopted by the commissioner or board under this 
section and section 1319-O, subsection 1 which that impose standards or requirements 
more stringent than final regulations of the United States Environmental Protection 
Agency shall must be submitted to the legislative joint standing committee of the 
Legislature having jurisdiction over energy environment and natural resources matters for 
review.  Any rules adopted by the commissioner or board under this section shall must be 
submitted to the legislative joint standing committee of the Legislature having 
jurisdiction over energy environment and natural resources matters for review pursuant to 
Title 5, section 8053-A. 
Sec. 7.  38 MRSA §1304, sub-§13, as amended by PL 2011, c. 655, Pt. GG, §11 
and affected by §70, is further amended to read:
13.  Innovative disposal and utilization.  Recognizing that environmentally suitable 
sites for waste disposal are in limited supply and represent a critical natural resource, the 
commissioner may investigate and implement with the approval of the board innovative 
programs for managing, utilizing and disposing of solid waste.  Innovative programs may 
include agricultural and forest land spreading of wood-derived ash, utilization of ash 
resulting from combustion of municipal solid waste, paper mill sludges, municipal waste 
water treatment plant sludges and the composting of yard wastes.  The commissioner 
shall first determine that the proposed innovative disposal and waste management 
programs are consistent with the state plan.  The commissioner shall review proposed 
innovative programs for each waste category and shall apply all controls necessary to 
ensure the protection of the environment and public health consistent with this chapter.  
The board commissioner may adopt application review procedures designed to review 
individual applications and their individual waste sources with prior approval of classes 
of disposal or utilization sites.  The board commissioner shall adopt provisions for 
municipal notification prior to use of individual utilization sites. 
Sec. 8.  38 MRSA §1365, sub-§4, as amended by PL 2005, c. 330, §36, is further 
amended to read:
4.  Compliance; appeal.  The person to whom the order is directed shall comply 
immediately and may apply to the board for a hearing on the order if the application is 
made within 10 working 15 days after receipt of the order by a responsible party.  Within 
working 30 days after receipt of the application, the board shall hold a hearing, make 
findings of fact and vote on a decision that continues, revokes or modifies the order.  That 
decision must be in writing and signed by the board chair using any means for signature 
authorized in the department's rules and published within 2 14 working days after the 
hearing and vote.  The nature of the hearing before the board is an appeal.   At the 
hearing, all witnesses must be sworn and the commissioner shall first establish the basis 
for the order and for naming the person to whom the order is directed.  The burden of 
going forward then shifts to the person appealing to demonstrate, based upon a 
preponderance of the evidence, that the order should be modified or rescinded. The 
decision of the board may be appealed to the Superior Court in accordance with Title 5, 
chapter 375, subchapter 7.
SUMMARY
This bill makes minor adjustments to laws administered by or that affect the 
Department of Environmental Protection.  The bill authorizes laboratories operated by a 
waste discharge facility to analyze waste discharges for Enterococcus without being 
certified under a state laboratory certification or accreditation program.  It changes the 
timelines regarding appeals under the laws governing uncontrolled hazardous substance 
sites.  It changes the rule-making authority from the Board of Environmental Protection 
to the Commissioner of Environmental Protection for certain rules regarding waste 
management.