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 Amendment CA_A_S518 (Senate)
Amends: 38 MRSA §341-D, 38 MRSA §344, 38 MRSA §489-A

COMMITTEE AMENDMENT " ft " to S.P. 362, L.D. 865, "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"
Amend the bill by striking out the title and substituting the following:
'An Act to Clarify the Roles and Responsibilities of the Board of Environmental
Protection'
Amend the bill by strikmg out everything after the enacting clause and inserting the
following:
'See. 1. 38 MRSA §341-D, sub-§2, as amended by PL 2011,c. 304, Pt, H, §6, is
further amended to read;
2. Permit and license applications. Except as otherwise provided in this subsection,
the board shall decide assume jurisdiction of each application for approval of the following
categories of permits and licenses that in its judgment represents a project of statewide
significance. A project of statewide significance is a project that meets at least 3 of the
following /1 criteria;
E. Will have an environmental or economic impact in more than one municipality,
territory or county;
F. Involves an activity not previously permitted or licensed in the State;
G. Is likely to come under significant public scrutiny; and
H. Is located in more than one municipality, territory or county.
I. A new mmine permit required pursuant to section 490-00;
. J. A license for a new solid waste disposal facility required pursuant to section 1310-N;
K. A permit for a new hmh-impact electric transmission line. as defined in Title 3 5-A.
section 3131. subsection 4-A, required pursuant to chapter 3, subchapter 1. article 6;
COMMITTEE AMENDMENT
COMMITTEE AMENDMENT " f\ " to S.P. 362, L.D. 865 fS - 5'/0)
L. A license for a new wastewater discharge required pursuant to section 413 that, as
determined by the department, is expected to use more than 20% of the assimilative
capacity of the receiving wateri
M. A permit for a new offshore wind terminal required pursuant to chapter 3.
subchapter 1, article 6; and
N. _ApermiLfor a new nuclear power plant, as defined in Title 35-A, section 4352.
subsection 9, required pursuant to chapter 3. subchapter 1. article 6.
The board shall also decide assume jurisdiction of each application for approval of permits
and licenses that is referred to it jointly by the commissioner and the applicant.
The board shall assume jurisdiction over applications referred to it under section 3/1/1,
subsection 2 A when it finds that at least 3 of the 4 criteria of this subsection have boon
The board may vote to assume jurisdiction of an application if it finds that at least 3 of the
4 criteria of this subsection have been met.
The board may not assume jurisdiction over an application for an expedited wind energy
development as defined in Title 35-A, section 3451, subsection 4, for a certification
pursuant to Title 35-A, section 3456 or for a general permit pursuant to section 480-HH or
section 63 6-A.
Prior to holding a hearing on an application over which the board has assumed jurisdiction,
the board shall ensure that the department and any outside agency review staff assisting the
department in its review of the application have submitted to the applicant and the board
their review comments on the application and any additional information requests
pertaining to the application and that the applicant has had an opportunity to respond to
those comments and requests. If additional information needs arise during the hearing, the
board shall afford the applicant a reasonable opportunity to respond to those information
requests prior to the close of the hearing record.
Sec. 2. 38 MRSA §341-D, sub-§4, ^A, as amended by PL 2023, c. 139, §2, is
further 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
30 days of the fifeg date of the decision with the board staff. The board staff shall
give written notice to persons that have asked to be notified of the deeisie&r An
appellant shall identify in the appeal the licensing or permitting criterion or standard
the appellant believes was not satisfied in the commissioner's final license or permit
decision. Any proposed supplemental evidence offered by an appellant must be
included with the filing of the appeal. The board staff shall issue to the licensee or
7 pennittee. if the licensee or pennittee is not the appellant, and to any persons who have
requested to be notified of the license or permit decision written notice of the filing of
the appeal and identify any proposed supplemental evidence offered by the appellant.
Within 30 days of the issuance of the written notice of the filing of the appeal by the
board staff, the licensee or permittee, if the licensee or permittee is not the appellant.
and any interested parties identified by the commissioner pursuant to section 344.
subsection 4-A. paragraph B may submit supplemental evidence to the board and the
appellant addressing the issues raised in the appeal. The board may allow the record
COMMITTEE AMENDMENT
COMMITTEE AMENDMENT " ft " to S.P, 362, L.D, 865 CS'5l^
to be supplemented when it 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 brmging the evidence to the licensing process at the earliest possible time; or
(2) The evidence is newly discovered and could not, by the exercise of diligence,
have been discovered in tune to be presented earlier m the licensing process.
The board may admit into the record supplemental evidence offered by a respondent in
response to proposed supplemental evidence offered by an appellant and the issues
raised on appeal. The board msy shall admit into the record additional evidence and
analysis submitted by department staff in response to issues raised e» in the appeal e?
and any supplemental evidence offered by an appellant, respondent or interested party
allowed by the board in accordance with this paragraph. The board is not bound by the
commissioner's findings of fact or conclusions of law but may adopt, modify or reverse
fmdings of fact or conclusions of law established by the commissioner. Any changes
to a final license or permit decision of the commissioner 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 other evidence obtained by the board through
any hearing on the appeal held by the boards
If the board modifies or reverses a final license or permit decision of the commissioner
pursuant to this paragraph, the licensee or permittee shall implement any changes to
the_proiect necessary to comply with the decision of the board, which may include, but
are not limited to. deconstruction and site restoration, and the department may initiate
enforcement actions Bursuant_to section 347-A and impose penalties pursuant to
section 349ifthe licensee or permittee fails to satisfactorily implement those changes;
Sec. 3. 38 MRSA §344, sub-§2-A, ^[A, as amended by PL 2011, c. 304, Ft, H, §18,
is further amended to read:
A. Except as otherwise provided in this paragraph, the commissioner shall decide as
expeditiously as possible if an application meets 3 of the ^\ criteria the requirements set
forth in section 341-D, subsection 2 for the assumption of jurisdiction by the board and
shall request that fistify the board assume jurisdiction of that ifjfae application meets
the requirements. If an interested person requests that the commissioner refer an
application to the board and the commissioner determines that the criteria are not met,
the commissionor shall notify the board of that request. If at any subsequent tune
during the review of an application the commissioner decides that the application feUs
yfidef meets the requirements set forth in section 3 41-D, subsection 2 for_fhe
assumption of jurisdiction by the board, the commissioner shall roquost that notify the
7 , board assume jurisdiction of that the application meets the requirements.
(1) The commissioner may not request the board to assume jurisdiction of an
application for any permit or other approval required for an expedited wind energy
, development, as defined in Title 35-A, section 3451, subsection 4, a certification
: pursuant to Title 35-A, section 3456 or a general permit pursuant to section
480-HH or section 636-A. Except as provided in subparagraph (2), the
commissioner shall issue a decision on an application for an expedited wind energy
development, an offshore wind power project or a hydropower project, as defined
in section 632, subsection 3, that uses tidal action as a source of electrical or
COMMITTEE AMENDMENT
?PS ,
COMMITTEE AMENDMENT " ^ " to S.P. 362, L.D. 865 (, $ -57 &)
mechanical power within 185 days of the date on which the department accepts the
application as complete pursuant to this section or within 270 days of the
department's acceptance of the application if the commissioner holds a hearmg on
the application pursuant to section 345-A, subsection 1-A.
(2) The expedited review periods of 185 days and 270 days specified in
subparagraph (1) do not apply to the associated facilities, as defmed in Title 3 5-A,
section 3451, subsection 1, of the development if the commissioner determines that
an expedited review time is unreasonable due to the size, location, potential
impacts, multiple agency jurisdiction or complexity of that portion of the
development. If an expedited review period does not apply, a review period
specified pursuant to section 344-B applies.
The commissioner may stop the processing time with the consent of the applicant for
a period of time agreeable to the commissioner and the applicant.
Sec. 4. 38 MRSA §489-A, sub-§9, ^A, as amended by PL 1993, c. 383, §27 and
affected by §42, is further amended by amending subparagraph (1) to read:
(1) Meets one or more of the criteria requirements set forth in section 3 41-D,
subsection 2, paragraph A, B or C for the assumption of jurisdiction by the board;'
Amend the bill by relettering or renumbering any nonconsecutive Part letter or section
number to read consecutively.
SUMMARY
This amendment replaces the bill and changes the title. It amends laws relating to the
roles and responsibilities of the Department of Environmental Protection, the
Commissioner of Environmental Protection and the Board of Environmental Protection as
follows.
1. It amends the criteria by which the board assumes jurisdiction over a license or
permit application, stipulating the specific categories of license and permit applications
over which the board must assume jurisdiction. The amendment also includes technical
revisions to other statutes relating to these jurisdictional changes.
2, It amends provisions regarding the board's acceptance and consideration of
additional or supplemental evidence submitted by an appellant, respondent or interested
party during the appeal of a final license or permit decision of the commissioner.
3. It provides that, if the board modifies or reverses a final license or permit decision
of the commissioner, the licensee or permittee is required to implement any changes to the
project that is the subject of the license or permit necessary to comply with the decision of
the board, which may include, but are not limited to, deconstruction and site restoration,
and the department may initiate enforcement actions and impose penalties if the licensee
or pennittee fails to satisfactorily implement those changes,
8 FISCAL NOTE REQmRED
(See attached)
COMMITTEE AMENDMENT
Approved: 01/11/24 ^^ci
LD 865 LR 915(02)
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
Fiscal Note for Bill as Amended by Committee Amendment "^ y
Committee: Environment and Natural Resources
Fiscal Note Required: Yes
Fiscal Note
Minor cost increase - Other Special Revenue Funds
Fiscal Detail and Notes
Any additional costs to the Board of Environmental Protection or the Department of Environmental Protection to
implement the provisions of this bill are expected to be minor and can be absorbed within existing budgeted resources.
LR0915(02) - Fiscal Note - Page 1 of 1