An Act to Clarify the Roles and Responsibilities of the Board of Environmental Protection by Adjusting the Requirements for Certain Hearings and for Certain Agencies by Adjusting the Requirements for Cost-Benefit Analysis
Maine Legislature, Session 131, LD 0865
Committee: Environment and Natural Resources
Sponsors: BENNETT, O'NEIL
Amends: 5 MRSA §8063-A, 38 MRSA §341-B, 38 MRSA §341-D

Legislative Document
No. 865
S.P. 362
In Senate, February 24, 2023
An Act to Clarify the Roles and Responsibilities of the Board of 
Environmental Protection by Adjusting the Requirements for 
Certain Hearings and for Certain Agencies by Adjusting the 
Requirements for Cost-Benefit Analysis
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator BENNETT of Oxford.
Cosponsored by Representative: O'NEIL of Saco.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §8063-A, as enacted by PL 2011, c. 304, Pt. B, §1, is amended to 
read:
§8063-A.  Analysis of benefits and costs
In addition to the economic impact statement required under section 8052, subsection 
5‑A and the fiscal impact note required under section 8063, an agency may, within existing 
budgeted resources and in instances in which the consideration of costs is permitted, 
conduct an analysis of the benefits and costs of a proposed rule to evaluate the effects of 
the rule on the distribution of benefits and costs for specific groups and on the overall 
economic welfare of the State.
1.  Contents of a cost-benefit analysis.  To the extent permitted within existing 
resources, a A cost-benefit analysis conducted under this section must include, at a 
minimum, the following information:
A.  Specification of the baseline condition for the analysis, including all required 
parameters for the analysis, all assumptions made in specifying the baseline condition 
and specification of the analysis period;
B.  A description of the methods used to discount future benefits and costs, preferably 
based on the federal Office of Management and Budget's discount rate for federal 
projects;
C.  An analysis of changes in the level of economic activity in the State as measured 
by employment, income and outputs; and
D.  An estimate of the discounted benefits and costs of the proposed rule over the 
baseline condition, including benefits and costs to specific groups and changes in the 
economic welfare of the State as a whole over the baseline condition.
Prior to conducting a cost-benefit analysis under this section, an agency shall determine 
that sufficient staff expertise and budgeted resources exist within the agency to complete 
the analysis.  An agency shall assess the costs of a cost-benefit analysis conducted under 
this section against the applicant. The agency shall include a cost-benefit analysis 
conducted by a 3rd party with a copy of a proposed rule when responding to a request for 
the proposed rule under section 8053, subsection 3‑A.  When the analysis is conducted on 
a provisionally adopted major substantive rule, the analysis must be included with the 
materials submitted to the Executive Director of the Legislative Council under section 
8072, subsection 2.  A cost-benefit analysis conducted under this section is not subject to 
judicial review under section 8058.
Sec. 2.  38 MRSA §341-B, as amended by PL 2019, c. 315, §3, is further amended 
to read:
§341-B.  Rules
The purpose of the Board of Environmental Protection is to provide informed, 
independent and timely, 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 rulemaking, decisions on selected permit applications, decisions on 
appeals of the commissioner's licensing actions, review of the commissioner's enforcement 
actions and recommending changes in the law to the Legislature.
Sec. 3.  38 MRSA §341-D, sub-§2, as amended by PL 2011, c. 304, Pt. H, §6, is 
further amended by amending the 2nd blocked paragraph to read:
The board shall assume jurisdiction over applications, including an application referred to 
it under section 344, subsection 2‑A, when it finds that at least 3 of the 4 criteria of this 
subsection have been met.
Sec. 4.  38 MRSA §341-D, sub-§2, as amended by PL 2011, c. 304, Pt. H, §6, is 
further amended by repealing the 3rd blocked paragraph.
Sec. 5.  38 MRSA §341-D, sub-§4, ¶A, as enacted by PL 1989, c. 890, Pt. A, §13 
and affected by §40, is amended to read:
A.  Final license or permit decisions made by the commissioner when a person 
aggrieved by a decision of the commissioner appeals that decision to the board within 
days of the filing of the decision with the board staff. The board shall hold a hearing 
on the appeal. The appeal is governed by the law in effect at the time the appeal was 
filed with the commissioner. The board staff shall give written notice to persons that 
have asked to be notified of the decision. The board may shall allow the record to be 
supplemented when it a majority of the board finds that the evidence offered is relevant 
and material and that:
(1)  An interested party seeking to supplement the record has shown due diligence 
in bringing the evidence to the licensing process at the earliest possible time; or
(2)  The evidence is newly discovered or arises from materially changed 
circumstances and could not, by the exercise of diligence, have been discovered in 
time to be presented earlier in the licensing process.
The board is not bound by the commissioner's findings of fact or conclusions of law 
but may adopt, modify or reverse findings of fact or conclusions of law established by 
the commissioner.  Any changes made by the board under this paragraph must be based 
upon the board's review of the record, any supplemental evidence admitted by the board 
and any hearing held by the board;
Sec. 6.  38 MRSA §341-D, sub-§4, as amended by PL 2017, c. 334, §3, is further 
amended by enacting at the end a new first blocked paragraph to read:
The board shall make a decision authorized by this subsection not later than 180 days after 
the date the matter is referred to the board for review.
Sec. 7.  38 MRSA §341-D, sub-§9 is enacted to read:
9.  Information sharing.  Information submitted to the chair of the board or a member 
of the board relating to a matter before the board must be distributed to all members of the 
board.
SUMMARY
This bill requires a cost-benefit analysis made by an agency to be performed by a 3rd 
party and requires the agency to assess the applicant for the cost of the analysis. It also 
removes a provision subjecting the cost-benefit analysis to judicial review.
The bill requires the board to assume jurisdiction over applications if certain criteria 
are met. It requires the board to hold a hearing on an appeal of a final decision on a license 
or permit that is governed by the law in effect at the time the appeal was filed and requires 
the board to allow supplementation if a majority of the board finds that certain conditions 
have been met. The bill adds evidence arising from materially changed circumstances to 
the types of evidence considered in the appeal.