An Act Regarding the Authority of the Department of Environmental Protection Regarding Applications, Permits and Fines
Maine Legislature, Session 130, LD 0436
Committee: Environment and Natural Resources
Sponsors: BRENNER
Amends: 38 MRSA §341-I, 38 MRSA §344, 38 MRSA §347-A, 38 MRSA §347-C, 38 MRSA §349, 38 MRSA §353, 38 MRSA §2205

Legislative Document
No. 436
S.P. 178
In Senate, February 16, 2021
An Act Regarding the Authority of the Department of 
Environmental Protection Regarding Applications, Permits and 
Fines
Submitted by the Department of Environmental Protection pursuant to Joint Rule 204.
Received by the Secretary of the Senate on February 11, 2021.  Referred to the Committee 
on Environment and Natural Resources pursuant to Joint Rule 308.2 and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator BRENNER of Cumberland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §341-I is enacted to read:
§341-I.  Fees, interest and lien authority
1.  Applicability.  Notwithstanding any provision of this Title to the contrary, this 
section applies to all fees established pursuant to this Title.
2.  Interest.  In addition to other remedies specifically authorized in this Title, the 
department shall charge interest at a rate of 15% per annum on any fee or portion of a fee 
not paid by its due date, unless the commissioner finds the amount too small or the 
likelihood of recovery too uncertain.
3.  Lien established.  A fee or any portion of a fee not paid within 90 days of its due 
date and accruing interest is a lien against real estate of a license holder.
A.  A certificate of lien signed by the commissioner must be sent by certified mail to 
the license holder or agent of record prior to being recorded and may be filed in the 
office of the clerk of the municipality in which the real estate is located. The lien is 
effective when the certificate is recorded with the registry of deeds for the county in 
which the real estate is located. The certificate of lien must include a description of the 
real estate, the amount of the lien and the name of the owner as grantor.
B.  When the amount for which a lien has been recorded under this subsection has been 
paid or reduced, the commissioner, upon request by any person of record holding 
interest in the real estate that is the subject of the lien, shall issue a certificate 
discharging or partially discharging the lien. The certificate must be recorded in the 
registry in which the lien was recorded pursuant to paragraph A. Any action of 
foreclosure of the lien must be brought by the Attorney General in the name of the State 
in the Superior Court for the judicial district in which the real estate subject to the lien 
is located.
Sec. 2.  38 MRSA §344, sub-§2-C is enacted to read:
2-C.  After-the-fact application.  For an application submitted to the department after 
an activity requiring a permit pursuant to this Title has begun, the department may either 
accept or refuse to accept, in whole or in part, the application for processing. When 
considering whether to accept an application submitted after the date and time it is required 
to be submitted pursuant to this Title, the department may consider relevant factors 
including, but not limited to, the following:
A.  The amount of time that has passed since the application was required to be 
submitted;
B.  The impact on the environment caused by the activity that is the subject of the 
application;
C.  Other violations of rules, statutes or licenses related to the activity that is the subject 
of the application;
D.  The applicant's prior noncompliance with rules, statutes or licenses and deadlines 
for submission of applications under this Title;
E.  The potential negative effect on voluntary compliance programs and other licensing 
programs within the department caused by accepting the application; and
F.  The deterrent effect a refusal to accept the application would have on both the 
applicant and others that perform activities requiring approval by the department 
without first submitting a timely application.
Sec. 3.  38 MRSA §347-A, sub-§1, ¶B, as repealed and replaced by PL 1993, c. 
204, §1, is amended to read:
B.  Before initiating a civil enforcement action pursuant to paragraph A, the 
commissioner shall issue a notice of violation to the person or persons the 
commissioner considers likely to be responsible for the alleged violation or violations.  
The notice of violation must describe the alleged violation or violations, to the extent 
then known by the commissioner; cite the applicable law, rule and term or condition of 
the license, permit or order alleged to have been violated; and provide time periods for 
the alleged violator to take necessary corrective action and to respond to the notice.  A 
notice of violation does not represent a final agency decision and is not appealable.  For 
violations the commissioner finds to be minor, the notice may state that further 
enforcement action will not be pursued if compliance is achieved within the time period 
specified in the notice or under other appropriate circumstances.  The commissioner is 
not required to issue a notice of violation before issuing an emergency order pursuant 
to subsection 3 or other applicable provision of this Title; nor is the commissioner 
required to issue a notice of violation before referring an alleged violation to the 
Attorney General for criminal prosecution or in a matter requiring immediate 
enforcement action.
Sec. 4.  38 MRSA §347-A, sub-§2, as amended by PL 1999, c. 127, Pt. A, §54, is 
further amended to read:
2.  Hearings.  The commissioner shall give at least 30 days' written notice to the alleged 
violator of the date, time and place of any hearing held pursuant to subsection 1, paragraph 
A, subparagraph (3).  The notice must specify the act or omission which that is claimed to 
be in violation of law or regulation.
Any hearing conducted under the authority of this subsection must be in accordance with 
the provisions of Title 5, chapter 375, subchapter IV 4.  At the hearing, the alleged violator 
may appear in person or by attorney and answer the allegations of violation and file a 
statement of the facts, including the methods, practices and procedures, if any, adopted or 
used by that person to comply with this chapter and present such evidence as may be 
pertinent and relevant to the alleged violation.
After a hearing, or in the event of a failure of the alleged violator to appear on the date set 
for a hearing, the commissioner shall, as soon as practicable, make findings of fact based 
on the record and, if the commissioner finds that a violation exists, shall issue an order 
aimed at ending the violation and that may include required corrective action and a civil 
penalty calculated pursuant to section 349, subsection 2.  The person to whom an order is 
directed shall immediately comply with the terms of that order.
Sec. 5.  38 MRSA §347-A, sub-§7, as enacted by PL 2001, c. 365, §2, is amended 
to read:
7.  Landowner liability for actions of others.  An owner, lessee, manager, easement 
holder or occupant of premises is not subject to criminal sanctions or civil penalties or 
forfeitures for a violation of laws or rules enforced by the department or the board if that 
person provides substantial credible evidence that the violation was committed by another 
person other than that person or a contractor, employee or agent of the owner, lessee, 
manager, easement holder or occupant.  This subsection does not prevent the department, 
the board or a court from requiring an owner, lessee, manager, easement holder or occupant 
of premises to remediate or abate environmental hazards or damage or to reimburse the 
department for the cost of such remediation or abatement.  An Once notified in writing of 
a violation, an owner, lessee, manager, easement holder or occupant of premises is subject 
to criminal sanctions or civil penalties or forfeitures for failure to remediate or abate a 
violation of this Title or an environmental hazard or damage; to reimburse the department 
for the cost of such remediation or abatement; or to comply with a lawful administrative 
order or court order to remediate or abate environmental hazards or damage for such 
remediation or abatement.
A.  The department shall investigate substantiated allegations by an owner, lessee, 
manager, easement holder or occupant that the violation was caused by another person.
B.  If an owner, lessee, manager, easement holder or occupant is subjected to criminal 
sanctions or civil penalties or forfeitures, or if such a person is required to remediate 
or abate environmental hazards or damage as a result of violations by another person, 
the owner, lessee, manager, easement holder or occupant has a cause of action against 
the actual violator to recover all damages and costs, including attorney's fees, incurred 
in connection with the environmental damage, and all costs, including attorney's fees, 
incurred in bringing the action to recover.
C.  This subsection does not apply to persons who are defined as "responsible parties" 
under chapter 3, subchapters II-A 2-A and II-B 2-B; chapter 13, subchapter II‑A 2-A; 
or chapter 13‑B.
Sec. 6.  38 MRSA §347-C, as repealed and replaced by PL 2017, c. 137, Pt. A, §5, 
is amended to read:
§347-C.  Right of inspection and entry
Employees and agents of the department may:
1.  Property.  Enter any property at reasonable hours in order to inspect the property 
to, take samples, inspect records relevant to any regulated activity or as appropriate conduct 
tests as appropriate to determine compliance with any laws administered by the department 
or the terms and conditions of any order, regulation, license, permit, approval or decision 
of the commissioner or of the board; and
2.  Buildings.  Enter any building with the consent of the property owner, occupant or 
agent, or pursuant to an administrative search warrant, in order to inspect the property or 
structure, including the premises of an industrial user of a publicly owned treatment works, 
and to take samples, inspect records relevant to any regulated activity or as appropriate 
conduct tests as appropriate to determine compliance with any laws administered by the 
department or the terms and conditions of any order, regulation, license, permit, approval 
or decision of the commissioner or of the board.
Sec. 7.  38 MRSA §349, sub-§2, as corrected by RR 2009, c. 2, §116, is amended 
to read:
2.  Civil penalties.  Except as otherwise specifically provided, a person who violates a 
law administered by the department, including, without limitation, a violation of the terms 
or conditions of an order, rule, license, permit, approval or decision of the board or 
commissioner, or who disposes of more than 500 pounds or more than 100 cubic feet of 
litter for a commercial purpose, in violation of Title 17, section 2264‑A, is subject to a civil 
penalty, payable to the State, of not less than $100 and not more than $10,000 $25,000 for 
each day of that violation or, if the violation relates to hazardous waste, of not more than 
$25,000 $65,000 for each day of the violation.  This penalty is recoverable in a civil action 
or may be assessed in an enforcement hearing pursuant to section 347-A.
Sec. 8.  38 MRSA §349, sub-§5, as amended by PL 1989, c. 890, Pt. B, §8 and 
affected by Pt. A, §40, is further amended to read:
5.  Considerations.  In setting a penalty, the court shall consider, but shall is not be 
limited to, the following:
A.  Prior violations by the same party;
B.  The degree of environmental damage that cannot be abated or corrected;
C.  The extent to which the violation continued following an order of the commissioner 
or board to correct it; and
D.  The importance of setting a civil penalty substantial enough to deter others from 
similar violations.;
E.  When sampling or submission of data is required, the effect that failing to submit 
data, providing inaccurate, incorrect or false data or failing to take required samples 
has on the department's ability to determine the extent to which the violation caused 
environmental damage or harm to human health; and
F.  The potential negative effect of the violation on voluntary compliance and self-
reporting programs administered by the department.
Sec. 9.  38 MRSA §349, sub-§6, as amended by PL 1997, c. 794, Pt. A, §8, is further 
amended to read:
6.  Maximum penalties.  The maximum civil penalty may exceed $10,000 $25,000 
for each day of that violation, but may not exceed $25,000 $65,000 for each day of the 
violation, when it can be shown that there has been a previous violation of the same law 
administered by the department, including, without limitation, a violation of the terms or 
conditions of an order, rule, license, permit, approval or decision of the board or 
commissioner, by the same party within the 5 preceding years, and the maximum criminal 
penalty may exceed $25,000 $65,000 for each day of violation, but may not exceed twice 
the amounts in subsection 1, when it can be shown that there has been a previous violation 
of the same law by the same party.
Sec. 10.  38 MRSA §353, as affected by PL 2011, c. 653, §33 and amended by PL 
2015, c. 124, §2, is repealed.
Sec. 11.  38 MRSA §2205, sub-§6, as amended by PL 1995, c. 465, Pt. A, §77 and 
affected by Pt. C, §2, is further amended to read:
6.  Interest.  If an operator fails to make a timely payment of the fee, the operator shall 
pay interest on the unpaid amount due at the rate established by the department pursuant to 
section 341-I from the last day for timely payment to the date paid.
SUMMARY
This bill makes the following changes to the laws governing the Department of 
Environmental Protection.
1.  It provides that fees or any portion of fees not paid within 90 days of their due date 
and accruing interest are a lien against real estate of a license holder.
2.  It provides the department discretion to accept or refuse to accept an application 
submitted to the department after the activity requiring a permit has begun and lists factors 
the department may consider in exercising this discretion.
3.  It provides that a notice of violation does not represent a final agency decision and 
is not appealable.
4.  It provides that after a hearing an order of the Commissioner of Environmental 
Protection may include required corrective action and a civil penalty.
5.  It specifies that an owner, lessee, manager, easement holder or occupant of premises 
is subject to criminal sanction or civil penalties or forfeiture for failure to remediate or 
abate a violation of environmental laws or an environmental hazard or damage or to 
reimburse the department for the cost of such remediation or abatement.
6.  It clarifies the circumstances under which employees and agents of the department 
may enter property and buildings.
7.  It increases the cap on civil penalties from $10,000 to $25,000 for each day of a 
violation or if a violation relates to hazardous waste from $25,000 to $65,000 for each day 
of a violation.  It provides that civil penalties may be assessed in an enforcement hearing.
8.  It specifies additional factors a court may consider in setting a penalty.
9.  It provides that the maximum civil penalty may exceed $25,000 for each day of a 
violation but may not exceed $65,000 for each day of a violation when it can be shown that 
there has been a previous violation of the same law administered by the department, 
including, without limitation, a violation of the terms or conditions of an order, rule, 
license, permit, approval or decision of the board or commissioner, by the same party 
within the 5 preceding years.  It increases the maximum criminal penalty from $25,000 to 
$65,000 for each day of violation in cases involving subsequent violations.