An Act To Restore the Authority of the Board of Environmental Protection
Maine Legislature, Session 129, LD 1789
Committee: Environment and Natural Resources
Sponsors: FOLEY
Amends: 32 MRSA §4174, 32 MRSA §4179, 38 MRSA §341-B, 38 MRSA §341-D, 38 MRSA §341-H, 38 MRSA §342, 38 MRSA §347-A, 38 MRSA §568-A, 38 MRSA §1319-O, 38 MRSA §1362, 38 MRSA §1609, 38 MRSA §1691, 38 MRSA §1694, 38 MRSA §1697, 38 MRSA §3106

Legislative Document
No. 1789
S.P. 605
In Senate, May 29, 2019
An Act To Restore the Authority of the Board of Environmental 
Protection
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator FOLEY of York.  (GOVERNOR'S BILL)
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  32 MRSA §4174, 2nd and 3rd ¶¶, as amended by PL 2017, c. 137, Pt. 
A, §2, are further amended to read:
The commissioner Department of Environmental Protection shall establish the 
criteria and conditions for the classification of wastewater treatment plants or systems, 
using as a basis the standards established by the New England Water Pollution Control 
Association.
The commissioner Department of Environmental Protection shall establish by rule 
the qualifications, conditions and licensing standards and procedures for the certification 
of individuals to act as operators.
Sec. 2.  32 MRSA §4179, as amended by PL 2017, c. 137, Pt. A, §3, is further 
amended to read:
§4179.  Rules
The commissioner Department of Environmental Protection shall adopt rules that 
include, but are not limited to, provisions establishing the basis for classification of 
treatment plants in accordance with section 4172 and provisions establishing 
requirements for certification and procedures for examination of candidates.
Sec. 3.  38 MRSA §341-B, as amended by PL 2011, c. 304, Pt. H, §1, is further 
amended to read:
§341-B.  Rules
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, 
decisions on appeals of the commissioner's licensing and actions, review of the 
commissioner's enforcement actions and recommending changes in the law to the 
Legislature.
Sec. 4.  38 MRSA §341-D, sub-§6, as repealed and replaced by PL 2011, c. 304, 
Pt. H, §11, is further amended to read:
6.  Enforcement.  The board shall hear appeals of emergency orders pursuant to 
section 347-A, subsection 3.:
E.  Advise the commissioner on enforcement priorities and activities;
F.  Advise the commissioner on the adequacy of penalties and enforcement activities;
G.  Approve administrative consent agreements pursuant to section 347-A, subsection 
1; and
H.  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 further amended 
to read:
§341-H.  Departmental rulemaking
The department may adopt, amend or repeal rules and emergency rules necessary for 
the interpretation, implementation and enforcement of any provision of law that the 
department is charged with administering as provided in this section.
Subject to Title 5, chapter 375, subchapter 2-A, the board may 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 as provided in this section. The board shall also adopt, amend and repeal 
rules as necessary for the conduct of the department's business, including the processing 
of applications, the conduct of hearings and other administrative matters.
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 board's business, including the 
processing of applications, the conduct of hearings and other administrative matters.
2.  Rule-making authority of the commissioner.  Notwithstanding any other 
provision of this Title, the commissioner shall adopt, amend or repeal only those rules of 
the department that are not designated as major substantive rules pursuant to Title 5, 
chapter 375, subchapter 2-A.
3.  Duties of department.  The department shall:
A.  Identify in its regulatory agenda under Title 5, section 8060, when feasible, a 
proposed rule or provision of a proposed rule that is anticipated to be more stringent 
than a federal standard, if an applicable federal standard exists; and
B.  During the consideration of any proposed rule, when feasible, and using 
information available to it, 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 basis statement the justification for the difference 
between the agency rule and the federal standard; and.
C.  Notwithstanding Title 5, chapter 375, subchapter 2 or 2-A, the department 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 
and must state that the department will accept additional public comment on the 
proposed rule at that meeting.
3-A.  Additional public comment.  Notwithstanding Title 5, chapter 375, subchapter 
or 2-A, 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 
must state that the board will accept additional public comment on the proposed rule at 
that meeting.
4.  Legislative review of a rule.  If a rule adopted by the department board is the 
subject of a request for legislative review of a rule under Title 5, chapter 377-A, the 
Executive Director of the Legislative Council shall immediately notify the department 
board of that request and of the legislative committee's decision under that chapter on 
whether or not to review the rule.
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.
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; enforcement actions; 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 §347-A, sub-§1, ¶A, as amended by PL 2011, c. 304, Pt. H, 
§19, is further amended to read:
A.  Whenever it appears to the commissioner, after investigation, that there is or has 
been a violation of this Title, of rules adopted under this Title or of the terms or 
conditions of a license, permit or order issued by the board or the commissioner, the 
commissioner may initiate an enforcement action by taking one or more of the 
following steps:
(1)  Resolving the violation through an administrative consent agreement 
pursuant to subsection 4, signed by the violator and approved by the 
commissioner board and the Attorney General;
(2)  Referring the violation to the Attorney General for civil or criminal 
prosecution;
(3)  Scheduling and holding an enforcement hearing on the alleged violation 
pursuant to subsection 2; or
(4)  With the prior approval of the Attorney General, commencing a civil action 
pursuant to section 342, subsection 7 and the Maine Rules of Civil Procedure, 
Rule 3.
Sec. 9.  38 MRSA §347-A, sub-§4, ¶D, as amended by PL 2011, c. 304, Pt. H, 
§20, is further amended to read:
D.  The public may make written comments to the commissioner board at the 
commissioner's board's discretion on an administrative consent agreement entered 
into by the commissioner board.
Sec. 10.  38 MRSA §347-A, sub-§6, ¶A, as amended by PL 2011, c. 538, §6, is 
further amended to read:
A.  In the case of an administrative consent agreement, notice of the proposed 
agreement and the proposed agreement must be posted on the department's publicly 
accessible website at least 30 days before the commissioner board takes any action on 
the agreement.  The Attorney General and the department shall receive and consider 
any written comments relating to the proposed agreement.
Sec. 11.  38 MRSA §568-A, sub-§3, as amended by PL 2017, c. 137, Pt. A, §13, 
is further amended to read:
3.  Exemptions from deductible.  The commissioner may waive the deductible 
requirement for an applicant's personal residence if the commissioner determines that the 
applicant does not have the financial resources to pay the deductible.  The commissioner 
department shall adopt rules to determine the standards to be used to assess an applicant's 
ability to pay this deductible.
Sec. 12.  38 MRSA §1319-O, as amended by PL 2015, c. 124, §9, is further 
amended to read:
§1319-O.  Rule-making authority; hazardous waste, waste oil and biomedical waste
1.  Hazardous waste.  This subsection governs rulemaking for hazardous waste.
A.  The commissioner department may adopt and amend rules identifying hazardous 
waste.  It is the intent of the Legislature that the commissioner department shall 
identify as hazardous waste those substances that are identified by the United States 
Environmental Protection Agency in proposed or final regulations.  The Legislature 
also intends that the commissioner department may identify as hazardous waste, in 
accordance with subparagraph (2), other substances in addition to those identified by 
the United States Environmental Protection Agency.  Further, the Legislature intends 
that a substance that has been identified as a hazardous waste by the commissioner 
department may be removed from identification only by further rulemaking by the 
commissioner department.
Hazardous waste may be identified as follows.
(1)  The commissioner department may identify any substance as a hazardous 
waste if that substance is identified as hazardous by particular substance, by 
characteristic, by chemical class or as a waste product of a specific industrial 
activity in proposed or final rules of the United States Environmental Protection 
Agency.
(2)  The commissioner department may identify any substance as a hazardous 
waste if the commissioner department, after evaluation based on existing data or 
data reasonably extrapolated from previously conducted studies using similar 
classes of substances or compounds under similar circumstances, has determined 
that the substance is an acute or chronic toxin causing significant potential 
adverse public health or environmental effects.  An acute or chronic toxin may 
include the characteristics of: 
(a)  Carcinogenicity;
(b)  Mutagenicity;
(c)  Teratogenicity; or
(d)  Infectiousness.
Rules adopted under this subparagraph must be submitted to the joint standing 
committee of the Legislature having jurisdiction over natural resources for 
review.  
(3)  Whenever the commissioner department proposes to adopt or amend rules 
identifying hazardous waste or removing hazardous waste from identification, the 
comissioner department shall hold a public hearing.
(4)  In addition to hazardous waste identified under subparagraphs (1) and (2), the 
Legislature identifies the following chemicals, materials, substances or waste as 
being hazardous waste:
(a)  Polychlorinated biphenyls and any substance containing polychlorinated 
biphenyls.
B.  The commissioner department may adopt rules relating to the handling of 
hazardous waste, including, but not limited to:
(1)  Containerization and labeling of hazardous waste, consistent with applicable 
rules of other federal and state agencies;
(2)  Reporting of handling of hazardous waste; and
(3)  Waste  that is not compatible.
C.  The commissioner department may adopt rules relating to transportation of 
hazardous waste, including, but not limited to:
(1)  Licensing of transporters of hazardous waste, conveyances used for the 
transportation of hazardous waste and the operators of these conveyances; and 
licensing fees  must be paid to the Maine Hazardous Waste Fund; and
(2)  A manifest system for hazardous waste  that takes into consideration the 
requirements of the United States Resources Conservation and Recovery Act of 
1976, Public Law 94-580, as amended, and this subchapter.
D.  The commissioner department may adopt rules relating to the interim and final 
licensing and operation of waste facilities for hazardous waste, including, but not 
limited to:
(1)  Standards for the safe operation and maintenance of the waste facilities, 
including, but not limited to, record keeping, monitoring before and during 
operation of the facility and after its termination of use or closure, inspections 
and contingency plans to minimize potential damage from hazardous waste;
(2)  The training of personnel and the certification of supervisory personnel 
involved in the operation of the waste facilities;
(3)  The termination, closing and potential future uses of the waste facilities;
(4)  Rules equivalent to regulations of the United States Environmental 
Protection Agency that provide for licensing or permitting by rule; and
(5)  Corrective action for all releases of hazardous waste or constituents from any 
solid waste management unit at a treatment, storage or disposal facility seeking a 
permit under this subchapter, regardless of the time waste was placed in the unit.  
For purposes of this paragraph, "solid waste management unit" includes any 
waste pile, landfill, surface impoundment or land treatment facility from which 
hazardous constituents might migrate, regardless of whether the unit was 
intended for the management of solid or hazardous wastes.
E.  The commissioner department may adopt rules relating to evidence of financial 
capacity of hazardous waste facilities' owners or operators, and of those who 
transport hazardous waste, to protect public health, safety and welfare and the 
environment, including, but not limited to:
(1)  Liability insurance;
(2)  Bonding; and
(3)  Financial ability to comply with statutory and regulatory requirements or 
conditions.
Evidence of financial capacity required by the commissioner department may include 
one, or any combination, of the following: insurance, guarantee, surety bond, letter of 
credit or qualification as a self-insurer.  In establishing the required evidence of 
financial capacity to further the purposes of this subchapter, the commissioner 
department may specify policy or other contractual terms, conditions or defenses that 
are necessary or that are unacceptable.
F.  By January 1, 2000, the board shall adopt, at a minimum, the universal waste 
rules, excluding pesticides, promulgated by the United States Environmental 
Protection Agency as defined in 40 Code of Federal Regulations, Parts 9, 260, 261, 
262, 264, 265, 266, 268, 270 and 273.
2.  Waste oil.  This subsection governs rulemaking for waste oil.
A.  The board department may adopt rules relating to the transportation, collection 
and storage of waste oil to protect public health, safety and welfare and the 
environment.  The rules may include, without limitation, rules requiring licenses for 
waste oil dealers and the location of waste oil storage sites that are operated by waste 
oil dealers, evidence of financial capability and manifest systems for waste oil.  A 
person licensed by the department to transport or handle hazardous waste is not 
required to obtain a waste oil dealer's license, but the hazardous waste license must 
include any terms or conditions determined necessary by the department relating to 
the transportation or handling of waste oil.
B.  The board department may adopt rules relating to the registration, design and 
operation of used oil collection centers for the purposes of section 1319-Y.  Rules 
adopted pursuant to this paragraph are major substantive rules as defined in Title 5, 
chapter 375, subchapter 2-A.
3.  Handling and disposal of biomedical waste.  The commissioner department 
shall adopt rules relating to the packaging, labeling, handling, storage, collection, 
transportation, treatment and disposal of biomedical waste, including infectious and 
pathogenic waste, to protect public health, safety and welfare and the environment.
A.  The rules must include, without limitation:
(1)  Registration of biomedical waste generators;
(2)  Handling of biomedical waste by generators;
(3)  Licensing of biomedical waste transporters and the conveyances used for the 
transportation of biomedical waste;
(4)  Implementation of a biomedical waste tracking or manifest system;
(5)  Establishment of treatment and disposal standards; and
(6)  Categories of biomedical waste subject to regulation under this subsection, 
consistent with the provisions of section 1303-C, subsection 1-A.
B.  The commissioner department shall adopt rules governing the siting, licensing, 
operational and record-keeping requirements for biomedical waste treatment, storage 
and disposal facilities.
C.  The commissioner department shall require evidence of financial capacity.
D.  The commissioner department may assess licensing and registration fees 
sufficient to pay for the department's administrative costs in regulating biomedical 
waste.
E.  The rules must provide transportation and disposal options for persons who 
generate fewer than 50 pounds of sharps per month that allow:
(1)  The generator or an employee of the generator to transport properly packaged 
sharps to a licensed biomedical waste disposal facility or another medical facility 
that has volunteered to serve as a collection point for sharps if no more than 50 
pounds of sharps are transported in one trip; and
(2)  The generator to mail properly packaged sharps to a licensed biomedical 
waste disposal facility in this State or a facility in another state if the carrier 
accepts those items and no more than 50 pounds are transported in any single 
package.
For purposes of this paragraph, "sharps" means items that may cause puncture 
wounds or cuts, including hypodermic needles, syringes, scalpel blades, capillary 
tubes and lancets, and "properly packaged" means packaged in accordance with 
department rules and rules or requirements imposed by the mail carrier.
Sec. 13.  38 MRSA §1362, sub-§1, ¶A, as amended by PL 2017, c. 475, Pt. A, 
§67, is further amended to read:
A.  Any substance identified by the commissioner department under section 1319-O;
Sec. 14.  38 MRSA §1609, sub-§13, as amended by PL 2009, c. 610, §6, is 
further amended to read:
13.  Department rule-making authority; flame retardants.  If the commissioner 
determines, in consultation with the Department of Health and Human Services, Maine 
Center for Disease Control and Prevention and the Department of Public Safety, Office of 
the State Fire Marshal, that a flame retardant is harmful to the public health and the 
environment or meets the criteria as a prohibited replacement pursuant to subsection 14, 
paragraph B and a safer alternative to the flame retardant as set forth in subsection 14 is 
available, the commissioner department may adopt rules to prohibit the manufacture, sale 
or distribution in the State of:
A.  A mattress, a mattress pad or upholstered furniture intended for indoor use in a 
home or other residential occupancy that contains that flame retardant; 
B.  A television or computer that has a plastic housing containing that flame 
retardant; or
C.  A plastic shipping pallet that contains that flame retardant.
The commissioner's department's rulemaking under this subsection must be made in 
accordance with Title 5, chapter 375, subchapter 2-A.  The department shall report any 
rulemaking undertaken pursuant to this subsection to the joint standing committee of the 
Legislature having jurisdiction over natural resources matters.  The joint standing 
committee of the Legislature having jurisdiction over natural resources matters may 
submit legislation relating to the department's report.  For purposes of this subsection, 
"flame retardant" means any chemical that is added to a plastic, foam or textile to inhibit 
flame formation.  Rules adopted pursuant to this subsection are routine technical rules.
Sec. 15.  38 MRSA §1691, sub-§11, as enacted by PL 2007, c. 643, §2, is further 
amended to read:
11.  Priority chemical.  "Priority chemical" means a chemical identified as such by 
the commissioner department pursuant to section 1694, subsection 1.
Sec. 16.  38 MRSA §1694, sub-§§1 and 2, as amended by PL 2011, c. 319, §5, 
are further amended to read:
1.  Criteria.  The commissioner department may designate a chemical of high 
concern as a priority chemical if the commissioner finds, in concurrence with the 
Department of Health and Human Services, Maine Center for Disease Control and 
Prevention:
A.  The chemical has been found through biomonitoring to be present in human 
blood, including umbilical cord blood, breast milk, urine or other bodily tissues or 
fluids;
B.  The chemical has been found through sampling and analysis to be present in 
household dust, indoor air or drinking water or elsewhere in the home environment; 
or
D.  The chemical is present in a consumer product used or present in the home.
2.  Designation.  The commissioner shall designate at least 2 priority chemicals by 
January 1, 2011.  The commissioner department may designate additional priority 
chemicals if the commissioner finds that the chemicals meet one of the criteria listed in 
subsection 1.
Sec. 17.  38 MRSA §1694, last ¶, as enacted by PL 2007, c. 643, §2, is amended 
to read:
The commissioner department shall adopt rules to implement the provisions of this 
section.  Rules adopted pursuant to this section are routine technical rules as defined in 
Title 5, chapter 375, subchapter 2-A.
Sec. 18.  38 MRSA §1697, sub-§6, as enacted by PL 2007, c. 643, §2, is amended 
to read:
6.  Mercury-added products.  The commissioner department may designate 
mercury or a mercury compound as a priority chemical for the purpose of adopting rules 
under section 1696 to prohibit the manufacture, sale or distribution of a mercury-added 
product that is not regulated under section 1661-C or 1667 prior to the effective date of 
this section.  The disclosure requirements of section 1695 do not apply to the 
manufacturer or distributor of a children's product that contains the designated mercury or 
mercury compound if the manufacturer has complied with the notification requirement 
under section 1661-A.
Sec. 19.  38 MRSA §3106, sub-§8, ¶A, as enacted by PL 2015, c. 166, §14, is 
amended to read:
A.  A distributor that initiates the deposit under section 3103, subsection 2 or 4 has 
the obligation to pick up any empty, unbroken and reasonably clean beverage 
containers of the particular kind, size and brand sold by the distributor from dealers to 
whom that distributor has sold those beverages and from licensed redemption centers 
designated to serve those dealers pursuant to an order entered under section 3109.  A 
distributor that, within this State, sells beverages under a particular label exclusively 
to one dealer, which dealer offers those labeled beverages for sale at retail 
exclusively at the dealer's establishment, shall pick up any empty, unbroken and 
reasonably clean beverage containers of the kind, size and brand sold by the 
distributor to the dealer only from those licensed redemption centers that serve the 
various establishments of the dealer, under an order entered under section 3109.  A 
dealer that manufactures its own beverages for exclusive sale by that dealer at retail 
has the obligation of a distributor under this section.  The commissioner department 
may establish by rule, in accordance with the Maine Administrative Procedure Act, 
criteria prescribing the manner in which distributors shall fulfill the obligations 
imposed by this paragraph.  The rules may establish a minimum number or value of 
containers below which a distributor is not required to respond to a request to pick up 
empty containers.  Any rules adopted under this paragraph must allocate the burdens 
associated with the handling, storage and transportation of empty containers to 
prevent unreasonable financial or other hardship.
Sec. 20.  Transition provisions.  The following transition provisions apply to 
changes in rulemaking and the impact on pending proceedings.
1. Effect on existing rules.  All rules adopted by the Commissioner of 
Environmental Protection prior to the effective date of this Act continue in effect until 
amended or rescinded by the Board of Environmental Protection; and
2.  Effect on pending proceedings.  All regulatory proceedings pending before the 
Board of Environmental Protection or the Commissioner of Environmental Protection on 
the effective date of this Act are subject to the Maine Revised Statutes, Title 1, section 
302.
SUMMARY
This bill amends the responsibilities and duties of the Board of Environmental 
Protection.  The bill:
1.  Moves all rulemaking authority of the Department of Environmental Protection to 
the board;
2.  Adds to the board's enforcement responsibilities the duty to approve 
administrative consent agreements and to advise the commissioner on enforcement 
priorities and activities and on the adequacy of penalties and enforcement activities; and
3.  Includes transition language to provide for the orderly transition of the rulemaking 
authority and for procedures pending before the department on the effective date of this 
legislation.