Pierce Atwood’s Environmental and Land Use Practice Groups are pleased to provide a summary of key environmental legislation from the 129th Maine Legislature’s First Regular Session, which adjourned sine die, on June 20, 2019. Unless specific effective dates are provided in the legislation, the effective date of non-emergency legislation enacted during the First Regular Session will be September 19, 2019. For questions or more information on any of these topics, please contact the attorney noted in each section.
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LD 1789, An Act To Restore the Authority of the Board of Environmental Protection – Public Law 2019, c. 315
This law reestablishes the rulemaking and advisory powers of the Maine Board of Environmental Protection. Whereas the Board previously had authority only with regard to major substantive rules, now the Board, instead of 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. 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. The commissioner may submit to the Board new or amended rules for its adoption. The Act further requires the Board to advise the commissioner on enforcement priorities and activities, advise the commissioner on the adequacy of penalties and enforcement activities, approve administrative consent agreements, and hear appeals of emergency orders.
LD 1706, An Act to Ensure Public Notification of Air Quality Violations – Public Law 2019, c. 321
This law requires for the first time that the Maine Department of Environmental Protection (Maine DEP) notify municipalities when either the Maine DEP or the U.S. Environmental Protection Agency issues a notice of violation for an air quality issue in that community. The new law does not otherwise expand the scope of an enforcement proceeding, such as by giving the municipality a formal role in investigating or resolving the issues alleged in the notice.
LD 1679, An Act to Promote Clean Energy Jobs and to Establish the Maine Climate Council – Public Law 2019, c. 476
This new law sets greenhouse gas reduction targets to achieve a statewide reduction of 80% by 2050, with interim reductions by 2040. To determine how best to achieve that level of reduction, the law establishes the Maine Climate Council. The Climate Council will be comprised of 39 members who represent Maine's different economic sectors and will include members of the Legislature and the University of Maine system, among others.
The Climate Council is tasked with updating Maine's Climate Action Plan and identifying mitigation strategies. The law requires the Climate Council to deliver an updated plan by December 1, 2020 and every four years thereafter. It also requires the Climate Council to report annually on its work and any recommendations for legislation beginning January 15, 2021.
To give effect to the recommendations of the Climate Council and the updated Climate Action Plan, the law requires the Maine DEP to issue rules beginning July 1, 2021. The Department of Transportation may also issue rules pursuant to the new law.
Fish & Wildlife
Contact: Matthew D. Manahan
LD 1775, An Act to Protect Sustenance Fishing – Public Law 2019, c. 463
This law creates a new sustenance fishing designated use as part of the State’s water quality standards. In order to protect the new sustenance fishing designated use, Maine DEP will utilize a fish consumption rate of 200 grams per day on specific waterbodies where Maine Indian tribes have historically fished. Maine DEP specifically exempted mercury from this new law and maintained the current risk level for inorganic arsenic. As a result, Maine DEP believes that there will be very little impact on existing discharges due to use of an increased fish consumption rate on the specified waters.
LD 199, An Act to Create the Water Resources Planning Committee – Public Law 2019, c. 67
This law reestablishes the Water Resources Planning Committee, which was abolished during the LePage Administration, in the Department of Agriculture, Conservation and Forestry. The Committee’s charge is to plan for the sustainable use of water resources by collecting and reviewing information about water withdrawals, coordinating state water resources information, and identifying any watersheds at risk using existing data gathered by the State. The Committee will then annually review state water policy regarding conservation and incentives for stewardship, among other things, and will provide guidance to municipalities and water districts and otherwise distribute educational materials on water resources and regulation. The members of the Committee will be broadly representative, including personnel from multiple state agencies, including the Maine Geological Survey, Maine DEP, and the Drinking Water Program, as well as members of the public with expertise in agriculture, public water utilities, water bottling, conservation, and other sectors.
LD 550, An Act To Amend the Definition of "Subdivision" in the Laws Governing Planning and Land Use Regulation for Subdivisions and a Provision Excepting the Division of a New or Existing Structure from Those Laws Beginning July 1, 2018 – Public Law 2019, c. 174
This law changes from January 1, 2019 to January 1, 2021 the date by which definitions of “subdivision” that are in municipal ordinances and that conflict with state law must comply with the definition of “subdivision” in state law. It extends from June 30, 2018 until June 30, 2020 the time municipalities have to register with the registry of deeds an ordinance with a conflicting “subdivision” definition. The bill also broadens the subdivision review exemption for a division of a structure into three or more dwelling units from municipalities with DEP-approval under the Site Law to any site plan review that meets certain specified criteria. Finally, it makes these changes retroactive to June 30, 2018.
LD 1784, An Act To Increase Land Permit by Rule Application Fees – Public Law 2019, c. 374
This law increased the permit by rule application processing fee from $50 to $250. On average, Maine DEP processes roughly 1,750 permit by rule applications per year.
LD 562, An Act To Improve Shoreland Zoning Rules and Enforcement To Support Municipalities – Public Law 2019, c. 40
This law increases the maximum civil penalties set forth in 30-A M.R.S. § 4452. Violations of local ordinances now carry a maximum penalty of $5,000 (up from $2,500), and a maximum penalty of $10,000 (up from $5,000) if the violation occurs within a resource protection zone. The Act further requires municipal shoreland zoning ordinances to require pre- and post-construction photographs of shoreland vegetation and the development site where a development is proposed within the shoreland zone.
Joint Order, Establishing the Task Force on Changes to the Maine Indian Claims Settlement Implementing Act
This joint order establishes the Task Force on Changes to the Maine Indian Claims Settlement Act. The Task Force’s purpose is to review the Maine Indian Claims Settlement Act and make recommendations for legislation regarding any suggested changes to the Act. The Task Force report is due by December 4, 2019.
Contacts: Brian M. Rayback
LD 112, An Act to Implement Changes to Maine’s Solid Waste Laws Pursuant to a Review of the State Waste Management and Recycling Plan – Public Law 2019, c. 291
As its title suggests, this law reflects amendments to Maine’s solid waste statutes recommended by the Maine DEP after this year’s update of the State’s Solid Waste Management and Recycling Plan.
Part A of this legislation: (1) clarifies the definition of “bypass,” a condition called by waste-to-energy or processing facilities when they have a malfunction, insufficient capacity, or other temporary downtime; (2) states the purpose of State-owned solid waste disposal facilities and the Legislature’s intent that all aspects of the management and operation of such facilities be conducted in a manner that “maximizes alignment” with the State’s waste management hierarchy; (3) stipulates that the Maine DEP may authorize disposal of non-bypass, municipal solid waste at State-owned disposal facilities only when a specific need for disposal has been identified by the Bureau of General Services and the facility operator, the disposal is consistent with the solid waste management hierarchy, and options for management of waste that represent a higher priority on the hierarchy are not otherwise reasonably available; and (4) authorizes the Maine DEP to limit the volume of municipal solid waste at a State-owned disposal facility and the duration of such disposal through imposition of limitations under the facility’s license.
Part B of this legislation: (1) requires that beginning March 1, 2020, and annually thereafter, a recycling establishment engaged in marketing, brokering, or purchasing recyclable materials generated in Maine report to the Maine DEP regarding its recycling of such materials; (2) clarifies the existing recycling reporting requirement for municipalities and changes the reporting to biennial rather than annual; (3) changes the existing due date for the Maine DEP’s report on statewide generation of solid waste, recycling rates, and available disposal capacity to the Legislature’s Environment and Natural Resources Committee from January 1, 2020, and biennially thereafter, to January 1, 2021, and biennially thereafter.
Waste and Recycling
Contacts: Lisa A. Gilbreath
LD 1017, Resolve, To Direct the Department of Labor to Develop a Framework for Encouraging Employers to Identify Safer Alternatives to Hazardous Chemicals – Public Law 2019, c. 47
Maine legislators have introduced bills over the years to enact laws that would identify chemicals of concern and require businesses to engage in various processes to find and use alternatives to those chemicals. Although no law has yet passed, this resolve requires the Department of Labor to “develop a framework” for such a program.
LD 1433, An Act to Protect the Environment and Public Health by Further Reducing Toxic Chemicals in Packaging – Public Law 2019, c. 277
This Act amends the 1989 Reduction of Toxics in Packaging law, which applied to four metals in all packaging or packaging components. The amendments expand the law to reach phthalates, PFAS, and additional “chemicals of concern” in food packages. The law now includes specific bans, and authorizes additional Maine DEP rulemakings that may lead to bans or other requirements, giving the Department FDA-like authority.
LD 1668, An Act to Implement Recommendations of the Department of Environmental Protection Regarding the State’s Mercury-added Lamp Law – Public Law 2019, c. 286
This law adjusts coverage of the program that recycles mercury lamps, and also encourages recycling by providing more locations for collection and for education and outreach to the public.
This 2019 Summary of Key Environmental Legislation is not intended to provide a detailed legal analysis of all aspects of the new laws summarized. For legal advice and counsel, please contact a Pierce Atwood attorney.