Environmental Analysis -- 124th Maine Legislature, First Regular Session

The 124th Legislature considered many bills affecting environmental and land use issues.  The Committee on Natural Resources, which consists of eight Democrats and five Republicans, reviewed most, but not all of, the environmental legislation this session.  Of these 13 members, seven were new to the Committee this session with four of those members being first-term legislators.  Of the 69 bills referred to the Committee, 66 were reported out, three were carried over to the next session, and 42 percent of the bills referred out were passed.  The session adjourned June 13, 2009.  Regular bills and resolves passed during this First Regular Session become effective September 12, 2009.  The Second Regular Session convenes Wednesday, January 6, 2010.

Analysis of the key pieces of environmental legislation that were enacted or carried over to the next session follows.  In addition, in a few instances we have included discussion of bills that were defeated, either because these were bills of interest or because of the potential for there to be similar legislative activity in the next regular session.  If you would like more information on any of the pieces of legislation discussed below, please contact the listed attorney or any member of the Pierce Atwood Environmental and Land Use Practice Group.

AIR QUALITY

  • LD 476 An Act To Amend Certain Laws Administered by the Department of Environmental Protection (enacted as P.L. 121) – Among other things, this law (the Department’s omnibus bill) directs the Department to regulate particulate matter consistent with the national approach.  The law is intended to ensure that DEP regulates fine particulate matter (aka PM Fine or PM 2.5) consistent with EPA’s approach.
  • LD 956 Resolution, Proposing an Amendment to the Constitution of Maine To Provide Constitutional Protection to the Funds Generated by the Regional Greenhouse Gas Initiative (carried over) – This resolution calls for an amendment to the State constitution to require that all revenues generated by the Regional Greenhouse Gas Initiative and deposited in the State’s Energy and Carbon Savings Trust be expended solely to support the goals and implementation of that initiative.
  • LD 1171 An Act To Amend the Laws Governing Outdoor Wood Boilers (enacted as P.L. 209) – This law makes several changes to the laws governing outdoor wood boilers.  First, it expands the definition of “outdoor wood boiler” to include heating devices that circulate hot air.  Second, it states that an outdoor wood boiler meeting a particulate matter emission limit of 0.06 pounds per million British Thermal Units heat output is not subject to a setback requirement as long as it meets specified stack height requirements.  Third, it directs the DEP to amend its rules as to (1) the qualifications for individuals who prepare recommendations on the installation of commercial outdoor wood boilers; (2) the definition of “commercial outdoor wood boiler,” and (3) reimbursement from the Outdoor Wood Boiler Fund for replacement of nuisance outdoor wood boilers.
  • LD 1479 An Act Relating to Biomass Gasification (enacted as P.L. 306) – This law amends the definition of the term “coal gasification facility” for purposes of the statutory moratorium on licensing and permitting of such facilities.  Under the new definition, a coal gasification facility is one that gasifies “coal or coal-derived materials,” as opposed to “carbonaceous materials” which inadvertently included biomass.
  • LD 1482 An Act to Amend Mercury Standards for Air Emission Sources (enacted as P.L. 338) – This law provides an alternative way for air emission sources to comply with mercury standards.  Current standards require air emission sources to emit no more than 25 pounds of mercury per year after January 1, 2010.  Under the new law, an air emission source may instead elect to reduce mercury emissions by 90 percent by weight after January 1, 2010 in lieu of meeting the 25 lbs/year limit.  The law also directs the Department of Environmental Protection to submit an updated report on mercury emissions to the Committee on Natural Resources in January 2010.

Analysis:  Maine is part of the Regional Greenhouse Gas Initiative (RGGI).  LD 956 is a Resolve that, if adopted in the next session, would seek to address the handling of revenues collected through RGGI.  Currently, under Maine’s RGGI program, six facilities in the State are required to purchase CO2 allowances equal to their emissions of CO2.  The State’s proceeds from the sale of its CO2 allowances to regulated facilities are placed in the State’s Energy and Carbon Savings Trust.  Funds in the trust are to be used primarily for energy efficiency projects, with up to 15 percent of the funds to be used for fossil fuel reduction projects. Forms to apply to the Trust for funds for qualifying projects are expected to be available soon.

For more information, contact Brian Rayback at brayback@pierceatwood.com or (207) 791-1188.

CLIMATE CHANGE

  • LD 460 Resolve, To Evaluate Climate Change Adaptation Options for the State (enacted as Resolve 16) – This resolve requires the Department of Environmental Protection to convene a stakeholder group, composed of representatives of businesses, nongovernmental organizations, and state agencies, to evaluate options for adapting to the most likely impacts of climate change in the state.  The resolve directs the stakeholder group to build upon a 2009 climate impact assessment conducted by the University of Maine and to report recommendations to the Committee on Natural Resources by February 27, 2010.  The group’s coordinating committee has organized into four working groups, to form recommendations for the “built environment,” coastal resources, natural resources, and the social environment.  Meetings are underway and scheduled to continue to take place throughout the summer.
  • LD 1333 An Act To Ensure that Replacement Culverts Permit Fish Passage (enacted as P.L. 460) – Originally titled An Act to Establish Climate and Energy Planning Maine (with the short title “Climate and Energy Planning Act of 2009”) and crafted by the Conservation Law Foundation and other environmental organizations, this bill initially proposed to add sweeping new requirements to all State planning decisions, long-term project decisions, and individual licensing decisions, requiring State agencies to analyze and consider “reasonably foreseeable climate change impacts” and “practicable alternatives” that would avoid, minimize, or mitigate those impacts.

    In response to opposition to the bill, the Department of Environmental Protection introduced a substantial amendment to the text, re-entitling the bill An Act to Reduce Maine’s Dependence of Fossil Fuels and Enhance Energy-efficient Development (the “Energy Efficiency Development Act”).  The revised bill continued to propose a number of significant changes to Maine’s existing environmental statues and regulations.  These changes included:  prohibiting, with few exceptions, developments or activities subject to the Site Law from resulting in or contributing to “unreasonable emissions of greenhouse gases” as determined by DEP; calling for the adoption of rules requiring compensation for land clearing (“conversion of undeveloped land”); increasing application fees, over and above the compensation fees, to cover DEP’s costs of administering the new standards; applying new greenhouse gas reduction standards for State “planning decisions,” including decisions by the Land Use Regulation Commission; developing new requirements for municipalities to incorporate greenhouse gas reduction goals into their growth management planning decisions; and imposing new “natural stream flow” and fish passage requirements on roads, culverts, and stream crossings.

    Despite considerable criticism, the revised version of LD 1333, with some modifications, received a favorable vote from the majority of the Committee on Natural Resources.  Over the final weeks of the session, however, stakeholders and their advocates succeeded in working with the Legislature to revise the bill and remove all of those portions noted above, except for the portions relating to fish passage.

    As finally enacted, LD 1333 is titled An Act to Ensure that Replacement Culverts Permit Fish Passage.  This law makes several amendments to the Natural Resources Protection Act.  First, the law amends NRPA’s permit exceptions for maintenance of stream crossings and existing road culverts, provided that the crossings and culverts achieve natural stream flows and allow passage of fish and other aquatic organisms.  It clarifies that these provisions apply only to water courses containing fish.  Second, the law requires that the Department of Environmental Protection amend its rules to require municipalities to achieve natural stream flow when they are maintaining roads or stream crossings, and clarifies that these rule changes apply only to water courses containing fish.  Third, the law clarifies that these new standards do not apply to forestry management activities, including associated road maintenance. 

Analysis:  The issues of climate change, growth management, and the interconnections between land use and greenhouse gas reduction goals likely will be addressed again in the next legislative session.  Legislative committee members, DEP staff, and environmental advocates all stressed the need for continuing study and discussion of these issues in the months to come, and we understand that internal agency discussions are proceeding.  The State Planning Office is presently preparing a report on the interrelationships, if any, between growth management and climate change.  LD 891, DEP’s original bill proposing a new greenhouse gas emission standard under the Site Law, was carried over and could provide a vehicle for similar proposals before the Legislature in 2010.  (LD 891 is discussed below in the Land Use, Site Law section.)

For more information, contact Brian Rayback at brayback@pierceatwood.com or (207)791-1188. 

DEP PROCESS

  • LD 476 An Act To Amend Certain Laws Administered by the Department of Environmental Protection (enacted as P.L. 121) – Among other changes, this law makes two clarifications to DEP procedures.  First, it adds “remand” to the list of actions the Board of Environmental Protection may take after reviewing a licensing decision by the Commissioner; DEP felt this authority needed to be clarified.  Second, it clarifies that DEP has the authority to consider applications for license amendments and surrenders.
  • LD 561 Resolve, To Direct State Agencies To Develop Policies To Guide Employees When Accessing Private Woodland, Farmland or Coastal Lands (enacted as Resolve 30) – This resolve requires the Department of Inland Fisheries and Wildlife, DEP, Department of Marine Resources, Department of Agriculture, Food and Rural Resources, and Department of Conservation to develop written policies for their employees entering private farmland, woodland, and coastal lands.  These policies will apply to employees entering private lands for non-emergency, information-collecting purposes, and will address issues such as when notification or permission is appropriate.  The resolve directs the departments to report on the policies developed by January 15, 2010.
  • LD 1134 An Act Regarding the Maximum Fee for Processing an Environmental License Application (enacted as P.L. 160, emergency measure effective September 1, 2009) – This law retains the current maximum “special” fee of $250,000 for applications processed by DEP.  Under prior law, the maximum special fee would have been reduced to $75,000 beginning September 1, 2009.
  • LD 1471 An Act Concerning Debarment from Contracts with the Department of Environmental Protection (enacted as P.L. 360) – Current law allows DEP to “debar” from participation in any contract with DEP a person who commits repeat violations of a DEP permit, but if the “person” is a corporation it may avoid debarment by forming a new corporation.  This law specifies that a debarment of an individual or business flows through to any other individual or business that is affiliated through a direct financial interest with that debarred individual or business, but requires DEP to make certain findings before the debarment will flow through to the affiliated individual or business. 

Analysis:  DEP didn’t seek any major additions to its procedural authorities this session, but it did seek to cement its authority by clarifying some gaps that had resulted in questions about its powers, including the power to pierce the protections provided by the corporate form.  Further, DEP made permanent the funding benefits provided to it by the $250,000 maximum special fee, which was originally implemented on a trial basis. 

For more information, contact Matt Manahan at mmanahan@pierceatwood.com or (207) 791-1189.

ENDANGERED and THREATENED SPECIES

  • LD 66 An Act To Amend Maine’s Endangered and Threatened Species List by Removing the Bald Eagle (enacted as P.L. 60) – This law removes the bald eagle from the State’s list of threatened species and clarifies that a species removed from the list after 2007 continues to receive protections against certain intentional acts.

Analysis:  Delisting of the bald eagle marks an environmental milestone in the recovery of that species.  From a regulatory perspective, now that the bald eagle is not listed as endangered or threatened, nest sites in Maine no longer are classified as essential habitat protected by the Department of Inland Fisheries & Wildlife.  DIF&W, however, will continue to monitor closely the number of bald eagles in Maine.  In addition, bald eagles will be protected at the federal level under a permitting program currently being developed by the U.S. Fish & Wildlife Service.

For more information, contact Brian Rayback at brayback@pierceatwood.com or (207)791-1188.

LAND USE

LURC Territory

  • LD 181 An Act to Conform Building Standards in the Unorganized Territories with Federal Emergency Management Agency Requirements (enacted as P.L. 111) – This law establishes permit requirements for the normal maintenance of structures that are in special flood hazard areas under Land Use Regulation Commission jurisdiction. This revision enables communities in the unorganized and deorganized areas of the State to be eligible for insurance under the National Flood Insurance Program within the Federal Emergency Management Agency.  In addition, the law requires LURC to report on revisions to its permitting rules for special flood areas.
  • LD 413 An Act To Clarify Land Use Regulation in Unorganized and Deorganized Townships (enacted as P.L. 401) – This law was supported by landowner groups to clarify the stated purpose of land use regulation in unorganized and deorganized townships, confirming that this regulation is for the benefit of township property owners and residents, as well as the general public.  A provision in the original draft of the bill, removed by amendment, would have stated that the Legislature acknowledges the importance of these areas to the State and local economies by promoting forest management and agricultural activities.
  • LD 516 An Act To Increase the Number of Members of the Maine Land Use Regulation Commission Who Reside in the Commission's Jurisdiction (enacted as P.L. 328) – This law raises the minimum number of Land Use Regulation Commission members who must reside in the commission’s jurisdiction from 2 to 3. The bill was supported by landowner groups and others, who felt that the ongoing process to revise the Comprehensive Land Use Plan for the LURC jurisdiction was insufficiently representative of owners and residents in that part of the state.
  • LD 1047 An Act To Amend the Review and Approval Process of the Comprehensive Land Use Plan (enacted as P.L. 375, emergency measure effective June 12, 2009) – This law supplements the procedures for review of the Comprehensive Land Use Plan.  Under the new law, the Land Use Regulation Commission may not adopt a Comprehensive Land Use Plan unless (1) at least 30 days before the Commission votes on the plan, the Commission submits a tentative plan to the joint standing committee with jurisdiction over conservation, (2) the committee reviews the plan at a public meeting, and (3) the Commission briefs the committee on anticipated rule changes resulting from the revised plan.

Analysis:  The Land Use Regulation Commission has been involved for several years in an ongoing process to draft the next amendment to the Comprehensive Land Use Plan, or “CLUP.”  The CLUP, last issued in 1997, is intended to serve as a blueprint for land use planning and regulatory activities in LURC’s jurisdiction.  It is an important policy document with significant potential ramifications for landowners and potential applicants in over 10 million acres of the State.  Landowners and timberland managers in the jurisdiction have been actively involved in the revision process and are concerned with data believed to be incorrect and the skewed analysis in the initial drafts of the CLUP.  Several of the bills proposed and enacted this session were supported by these constituencies in response to LURC staff’s expressed belief that previous law did not allow the concerns of landowners and residents in the jurisdiction to be considered as distinct from LURC’s mandate to serve the general public and visitors to the State.  The CLUP process is ongoing and it is expected that formal public hearings on a revised draft will be held this fall, with final approval and adoption of the revised CLUP in the first half of 2010.

For more information, contact Matt Manahan at mmanahan@pierceatwood.com or (207) 791-1189.

Natural Resources

  • LD 107 An Act to Change the Classification of Man-made Wetlands (defeated) – This bill, which would have resulted in a major policy change for Maine, would have exempted man-made wetlands from regulation under the Natural Resources Protection Act.  The term “man-made wetlands” is defined as wetlands created solely by human activity, but does not include wetlands created in connection with a compensation project.

For more information, contact Bill Taylor at wtaylor@pierceatwood.com or (207) 791-1213, or Brian Rayback at brayback@pierceatwood.com or (207) 791-1188.

Site Law

  • LD 891 An Act To Amend the Site Location of Development Laws To Include Consideration of Greenhouse Gas Emissions (carried over) – This bill calls for adding a new standard to the laws governing site location of development.  The bill, as originally proposed, would require the Department of Environmental Protection to consider whether a proposed development will contribute to “unreasonable emissions of greenhouse gases,” and to consider any measures taken to mitigate greenhouse gas emissions.
  • LD 1268 An Act To Update the Site Location of Development Laws (enacted as P.L. 293) – This bill, as originally proposed, would have prohibited Site Law projects, including not only commercial and industrial projects but also residential subdivisions, outside of locally designated growth areas, areas served by public sewer or identified census “designated places,” or urban compact areas.  According to DEP’s statistics, this new provision alone would have eliminated 30-40 percent of new commercial and industrial projects approved under the Site Law in the last three years.  Other key portions of the bill would have imposed new requirements for “conservation subdivisions,” repealed existing Site Law subdivision exemptions for lots over 40 and 500 acres, and broadly amended the Site Law to prohibit an unreasonable risk of discharge to “ground water.”

    Following a significant expression of concern to the Committee on Natural Resources by landowners, developers, contractors, and others with economic development experience and interests, LD 1268 was substantially pared back.  The finally enacted version includes only the following portions of the original bill, in addition to several minor technical corrections to language:
     

    • Elimination of the rarely used “planning permit” and authorization for DEP to adopt rules applying to “long-term construction projects.”  DEP already has issued an initial draft of these rules;
    • Creation of general permit authority for projects by the Maine Department of Transportation and the Maine Turnpike Authority.  In issuing the general permit, DEP is empowered to rely on DOT’s and the Authority’s environmental procedures and standard practices, assuming they meet or exceed applicable DEP regulations.  Similar to other general permits, the new program will require the applying agency to file a notice of intent evidencing compliance with the applicable standards;
    • Adoption of a requirement that DEP report back to the Committee on Natural Resources by January 15, 2010, on its review of storm water management and Site Law provisions providing for registration of municipalities to substitute local permits for state permits, and exempting developments from meeting specified standards within certain municipalities.  This report could lead to recommended statutory changes addressing these issues.

Analysis:  On the climate change front, as noted above under the analysis of LD 1333, the carried over LD 891 could provide a vehicle in the next session for a more comprehensive overhaul of the State’s approach to land use and climate change issues. 

With regard to LD 1268, it appears that the Legislature ultimately concluded that the imposition of substantial, new standards on development at this time would be a significant hindrance to the economy and future economic recovery within the State.  With this said, legislative committee members, DEP staff and some environmental advocates emphasized continuing study and discussion of these issues, perhaps by the legislatively-created “Community Preservation Advisory Committee” (CPAC) beginning this fall.  In addition, it remains unclear to what extent DEP intends to proceed with formulation and adoption of amendments to the Site Law regulations, initial drafts of which were released earlier this year.  Some DEP staff members have expressed the opinion that many of the types of controls proposed under LD 1268 are authorized under existing law and that DEP could proceed with adoption of similar controls through rulemaking, without regard for the enacted version of LD 1268.

For more information, contact Tom Doyle at tdoyle@pierceatwood.com or (207) 791-1214.

Submerged Lands

  • LD 1322 An Act To Amend Provisions of the Submerged Lands Law (enacted as P.L. 316, emergency measure effective June 9, 2009) – This law makes several amendments to the laws governing submerged lands.  First, it raises the minimum rent for submerged lands from $100 to $150 per year and allows gradual adjustments to rental rates based on changes in property values and programmatic costs.  Second, it phases in rent increases, beginning in 2010, for leaseholders whose adjusted rent will exceed $1,200 following the June 30, 2009 repeal of the $1,200 rental cap. Third, it defines the term “offshore project,” and specifies that the term does not include wind farms, tidal and wave energy facilities, or other offshore renewable energy projects.  The original draft of the bill, revised by amendment, would have defined “offshore project” to include wind farms, tidal energy facilities, and similar projects.

Analysis:  The Ocean Energy Task Force identified the provisions of Maine’s submerged lands law as one of the potential obstacles to the development of offshore wind and tidal energy projects in Maine’s coastal waters.  The original draft of LD 1322 would have applied the same rental rates for well-established industries that lease the State’s submerged lands to a technology that is only in the demonstration stage, thereby conflicting with the Ocean Energy Task Force’s mission to develop a strategy to promote the development of Maine’s ocean energy resources.

For more information, contact Matt Manahan at mmanahan@pierceatwood.com or (207) 791-1189.

PESTICIDES

  • LD 494 Resolve, Regarding Legislative Review of Portions of Chapter 22: Standards for Outdoor Application of Pesticides by Powered Equipment in Order To Minimize Off-target Deposition, a Major Substantive Rule of the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control (enacted as Resolve 114, emergency measure effective June 9, 2009) –  This resolve authorizes adoption of revisions to Chapter 22 of the Board of Pesticides Rules, provided certain changes are made to the chapter.  Chapter 22, as its title suggests, establishes procedures and standards for the outdoor application of pesticides by powered equipment in order to minimize pesticide drift to the maximum extent practicable with currently available technology.  The changes to the proposed regulatory revisions required by the resolve include rewriting the language to clarify that detection of residue beyond the application area is not prima facie evidence of a violation, but rather only evidence that application was not conducted in a manner to minimize drift to the maximum extent practicable.  The revised version of Chapter 22 goes into effect on January 1, 2010.
  • LD 495 Resolve, Regarding Legislative Review of Portions of Chapter 10: Definitions and Terms, a Major Substantive Rule of the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control (enacted as Resolve 41, emergency measure effective May 14, 2009) – This resolve approves updates to Chapter  10 of the Board of Pesticide Rules, provided the definition of “sensitive area likely to be occupied” is amended, among other ways, to clarify that structures other than buildings that are likely to be occupied by humans are included within the definition.  The revised Chapter 10 became effective on July 16, 2009.
  • LD 1293 An Act To Require Citizen Notification of Pesticide Applications Using Aerial Spray or Air-carrier Application Equipment (enacted as P.L. 378) – This law provides that land managers applying pesticides using aircraft or air carrier equipment must notify residents and managers of buildings on abutting property before the pesticide application.  Notifications are valid for three years unless the method of application or type of pesticides used has changed.  The law also directs the Department of Agriculture, Food and Rural Resources, Board of Pesticides Control to establish a registry of citizens for those who want additional information about pesticide application.  Land managers must notify persons on the registry who own, lease or occupy property that abuts or lies within 1320 feet of the pesticide spray area.

For more information, contact Bill Taylor at wtaylor@pierceatwood.com or (207) 791-1213, or Brian Rayback at brayback@pierceatwood.com or (207) 791-1188.

PETROLEUM & OIL

  • LD 476 An Act To Amend Certain Laws Administered by the Department of Environmental Protection (enacted as P.L. 121) – This law makes several changes to laws regulating oil and other hazardous matter.  First, the law states that persons responsible for a prohibited discharge of oil or other hazardous matter are liable to the Department of Environmental Protection for the Department’s costs of implementing a plan to restore any natural resources damaged by the discharge.  Second, the law clarifies generally that the law passed years ago to govern underground oil storage tanks, now applies to both underground and aboveground oil storage facilities.  Third, the law directs the DEP Commissioner to seek recovery of costs incurred to undertake the abandonment of an underground oil storage facility, regardless of whether the costs were paid from State or federal funds.  Fourth, it clarifies that persons responsible for discharge from an oil storage facility are required immediately to clean up the discharge and encouraged to report it, regardless of whether the discharge is shown to have reached groundwater.  Fifth, it requires the Commissioner to charge responsible parties with interest on amounts owed to the Uncontrolled Sites Fund, at a rate no higher than the prime rate plus 4 percent.
  • LD 991 An Act to Create a Statute of Limitations for Oil Discharge Violations (defeated) – This bill would have required the Department of Environmental Protection or the Attorney General to bring an enforcement action for a violation of oil discharge laws within three years of the date the violation was reported to the Department.
  • LD 1332 An Act To Continue Coverage of Oil Clean-up Costs and Improve Administration of the Ground Water Oil Clean-up Fund (enacted as P.L. 319) – This law makes several amendments to laws governing oil storage and clean-up.  First, the law extends the sunset date of the Ground Water Oil Clean-up Fund to December 31, 2015.  Second, it authorizes the use of restrictive covenants to prevent or limit human exposure to contamination from an oil discharge. Third, it directs the Board of Environmental Protection to adopt rules requiring operators of certain underground oil storage tanks to complete a DEP training program.  Fourth, it states that motor carriers are not eligible for coverage by the Ground Water Clean-up Fund for discharges that occur when loading oil to or from a vehicle used to transport oil.  Fifth, it directs DEP to review the current funding framework for investigation and clean-up of certain tank-related oil discharges.
  • LD 1386 An Act Pertaining to Response Costs Incurred by the Department of Environmental Protection under the Waste Motor Oil Disposal Site Remediation Program (enacted as P.L. 304) – This law provides an alternative method of payment to the Department of Environmental Protection for clean-up performed at specified waste motor oil disposal sites.  The law authorizes the Finance Authority of Maine to use proceeds of revenue obligation securities to fund the costs of clean-up projects implemented by DEP at the Ellsworth, Casco, and Presque Isle disposal sites.

Analysis:  Most of the legislative changes which affect the liability of tank owners generally are intended to strengthen the hand of DEP in addressing above ground tanks and to preserve and protect the funding of the Oil Cleanup Fund.  Above ground tanks will continue to be subject to increasing scrutiny by DEP as these tanks continue to grow in number and DEP identifies releases from these tanks; more underground tanks are being replaced by their above ground cousins.    

For more information, contact Ken Gray at kgray@pierceatwood.com or (207) 791-1212.

RENEWABLE ENERGY

  • LD 348 An Act To Facilitate the Removal of Dams That Pose a Hazard to Public Safety and the Installation and Repair of Fishways (enacted as P.L. 75) – This law provides that a permit is not required under the Natural Resources Protection Act for certain activities associated with dam removal and fishway installation.  Under the new law, a permit is not required for (1) erection, maintenance, repair, or alteration of a fishway in a dam when required by the Commissioner of Inland Fisheries and Wildlife or the Commissioner of Marine Resources, (2) activity related to the release of water from a dam when required by an order of the Department of Environmental Protection, and (3) activity related to the breach or removal of a dam when pursuant to a dam safety order by the Commissioner of Defense, Veterans and Emergency Management.
  • LD 1044 Resolve, To Promote Cogeneration of Energy at Maine Sawmills (enacted as Resolve 81) – This resolve requires the Governor’s Office of Energy Independence and Security to create a stakeholder group to review the concept of cogeneration energy zones and to report its findings by February 15, 2010.  The resolve defines a cogeneration energy zone as a designated geographic area that includes a sawmill with an on-site cogeneration facility.
  • LD 1465 An Act To Facilitate Testing and Demonstration of Renewable Ocean Energy Technology (enacted as P.L 270, emergency measure effective June 4, 2009) – This law contains several provisions to aid the development of renewable energy technologies.  First, it creates a general permit for qualified offshore wind energy demonstration projects in specified offshore areas.  Second, it streamlines the process for issuing a State submerged lands lease to permitted offshore wind energy demonstration projects and tidal energy demonstration projects.  Third, it establishes a public process to identify up to five offshore areas in which an offshore wind energy demonstration project may receive a general permit.  One of these offshore areas will be designated as the Maine Offshore Wind Energy Research Center.  Fourth, it creates a general permit for tidal energy demonstration projects eligible for a pilot project license from the Federal Energy Regulatory Commission.

Analysis:  LD 1465 is one of the more significant pieces of renewable energy legislation enacted this year.  It is the result of the work of the Ocean Energy Task Force, established by Governor Baldacci to recommend a strategy to increase wind and tidal energy generation from coastal waters. The legislation is intended to overcome obstacles posed by State laws or policies to the environmentally responsible, economic, and efficient development of grid-scale wind and tidal energy generation facilities in Maine’s coastal waters and adjoining federal waters.  The Task Force must submit a final report to the Governor by October 31, 2009.  The final report is anticipated to recommend additional legislation to help promote the development of these emerging renewable technologies.

For more information, contact Matt Manahan at mmanahan@pierceatwood.com or (207) 791-1189.

WASTE

Electronic Waste

  • LD 536 An Act To Enhance Maine’s Electronic Waste Recycling Law (enacted as P.L. 397) – This law makes several amendments to the State’s electronics recycling laws.  First, it expands coverage of the recycling laws, adding desktop printers and video game consoles to the list of covered electronic devices and clarifying that digital picture frames are covered as a type of computer monitor.  Second, it outlines manufacturers’ responsibilities for recycling desktop printers and video game consoles.  Third, it requires manufacturers of computer monitors, televisions, desktop printers, and video games consoles to register with the Department of Environmental Protection and pay a $3,000 annual registration fee.
  • LD 1156 An Act To Amend the Laws Governing the Recycling of Televisions (enacted as P.L. 231) – This law assigns responsibility for recycling televisions on a market share basis, allocating the costs of recycling to television manufacturers on a basis proportional to each manufacturer’s national market share.  The law also directs the Department of Environmental Protection to review the costs of the State’s household electronic waste recycling programs.

Analysis:  Following initial implementation and regulation of cathode ray tubes and flat panel video displays, Maine’s laws governing recycling of electronic wastes are being expanded to new devices that contain heavy metals.  The Legislature also acted to spread the costs of television recycling based on market share. 

For more information, contact Ken Gray at kgray@pierceatwood.com or (207) 791-1212.

Hazardous Waste & Toxics

  • LD 1423 An Act To Improve Toxics Use Reduction and Reduce Energy Costs by Maine Businesses (carried over) – This law calls for amendments to the laws governing reduction of toxic use and hazardous waste.  First, the law would update statewide reduction goals for toxics use, toxics release, and hazardous waste, setting a goal of zero discharge by 2050.  Second, it would establish a procedure for adding new facilities and chemicals to the law’s coverage. Third, it would encourage facilities to meet the State’s greenhouse gas reduction goals through energy efficiency, waste reduction, and other measures.  Fourth, it would require DEP to create a web-based system for facility progress reports.  Fifth, the law would remove the requirement that facilities use an activity production index when filing a pollution prevention plan.

Analysis:   LD 1423 was carried over, but the committee called for a stakeholder group to consider proposed changes to this Toxics Use law.  The Pierce Atwood Environmental Practice Group will be participating in the stakeholder group.

For more information, contact Brian Rayback at brayback@pierceatwood.com or (207)791-1188.

Mercury

  • LD 973 An Act to Provide for the Safe Collection and Recycling of Mercury-containing Lighting (enacted as P.L. 272) – This law states that manufacturers of mercury-added lamps distributed for household use must implement a program allowing households to recycle those lamps.  The law further directs the Department of Environmental Protection to adopt mercury content standards “based on” California standards and requires the Department to submit reports to the Committee on Natural Resources related to recycling of mercury-added lamps from households and businesses.  Finally, the law requires the Department of Administrative and Financial Services to favor lamp models with higher energy efficiency, lower mercury content, and longer lamp life when making purchasing decisions on mercury-added lamps.
  • LD 986 An Act To Protect the Public Health and the Environment by Prohibiting the Sale of Wheel Weights Containing Lead or Mercury (enacted as P.L. 125) – This law prohibits the use of wheel weights containing lead or mercury in the replacement or balancing of motor vehicle tires after January 1, 2011.  It further prohibits the sale of lead or mercury wheel weights after January 1, 2011, and prohibits the sale of new vehicles with lead or mercury wheel weights after January 1, 2012.
  • LD 1042 An Act to Continue To Reduce Mercury Use and Emissions (enacted as P.L. 277) – This law makes several amendments to the laws governing mercury use.  First, it clarifies the definition of “mercury switch” in the law on mercury-added products.  Second, it amends the law requiring vehicle manufacturers to implement a system for collection and recycling of mercury switches in junkyard vehicles, giving manufacturers greater flexibility in the design of the system. Third, it amends the law on collection and recycling of mercury thermostats and consolidates this law with the law prohibiting sale of mercury thermostats.

Analysis:  Continuing its campaign to reduce mercury that might reach the environment in Maine, the Legislature has expanded the regulation of several products that contain mercury and required manufacturers to adopt the first mercury lamp recycling program in the country.  

For more information, contact Ken Gray at kgray@pierceatwood.com or (207) 791-1212.

Solid Waste

  • LD 351 An Act Regarding the Regulation of Agricultural Composting Operations (defeated) – This bill would have removed commercial agricultural composting operations from regulation by the Department of Environmental Protection as waste facilities, and created a new system of regulation for these operations.  The bill would have required commercial agricultural composting operations to register with the Department of Agriculture, Food and Rural Resources, and directed the Commissioner of Agriculture to adopt rules on best management practices for agricultural composting operations.  In addition, it would have permitted the Commissioner to inspect commercial agricultural composting operations to assess compliance with best management practices.
  • LD 367 Resolve, To Convene a Work Group To Design and Implement a Statewide Disposable Checkout Bag Reduction Campaign, with Benchmarks (enacted as Resolve 54) – This resolve calls for the establishment of a work group, composed of agencies, organizations, and businesses, to develop a campaign to reduce disposable checkout bag use.  The work group is directed to develop goals for reducing the use of disposable checkout bags, assess recycling infrastructure capacities, design a statewide promotional campaign, identify funding resources, and submit a report to the Committee on Natural Resources.
  • LD 759 An Act to Require State-owned Solid Waste Disposal Facilities To Demonstrate a Public Benefit (enacted as P.L. 348) – This law requires State-owned solid waste disposal facilities that were in operation prior to June 1, 2007 to demonstrate a significant public benefit when they expand.  Under current law, these facilities are exempt from the significant public benefit requirement.
  • LD 760 An Act to Improve Landfill Capacity (enacted as P.L. 412) – This law makes two changes to laws governing solid waste management.  First, the law amends the provisions governing solid waste processing facilities that generate residue requiring disposal.  Current law requires these facilities to recycle waste accepted at the facility “to the maximum extent practicable,” and prohibits the Department of Environmental Protection from enforcing the recycling requirements until the Department has adopted major substantive rules defining “to the maximum extent practicable.” The new law requires the Department to adopt routine technical rules, rather than major substantive rules, and no longer prohibits enforcement until those rules are adopted.  Second, the law authorizes the Committee on Natural Resources to report out legislation related to solid waste management responsibilities to the Second Regular Session of the 124th Legislature, rather than the First Regular Session.
  • LD 1010 Resolve, To Require the Department of Environmental Protection To Review Emerging Technologies and the Laws Regarding Incinerators (enacted as Resolve 57) – This resolve requires DEP to review whether facilities that use emerging waste-to-energy technologies with environmental and energy benefits should be exempted from the statutory ban on establishment of new commercial incinerators.  The resolve directs the Department to convene a task force and submit a report on its findings to the Committee on Natural Resources.
  • LD 1476 An Act Regarding the Transfer of Licenses for Energy Recovery Facilities (enacted as P.L. 380) – This law limits the Department of Environmental Protection’s authority to approve the transfer of a solid waste facility license during the term of a waste handling contract between a facility that incinerates municipal solid waste and its host community.  Under the new law, the Department may approve a license transfer only after the expiration of a due diligence review period for the host community.  Facilities owned by regional associations and transfers to the facility’s host community are exempt from the new requirement.  The Board of Environmental Protection has jurisdiction over transfer applications subject to the new requirements and must hold public hearings on transfer applications. 

Analysis:  Regulation of solid waste and solid waste facilities continues to be a controversial topic that is heavily influenced by policymakers’ desire to control the flow of solid waste into and within Maine, where facilities are located, and the potential environmental impacts from such facilities.  Ultimately, no one wants solid waste facilities built near them, but no one has yet figured out how to get by without them.   These controversies will undoubtedly continue in the upcoming legislative session.

For more information, contact Tom Doyle at tdoyle@pierceatwood.com or (207) 791-1214.

WATER

Ground Water and Water Extraction

  • LD 238 An Act Regarding Consumer-owned Water Utilities and Contracts for Large-scale Extraction and Transportation of Water (enacted as P.L. 237, emergency measure effective April 17, 2009) – This law prohibits a consumer-owned water utility from entering into contracts for large-scale extraction and transportation of water until the utility has met certain requirements.  The utility must (1) hold a public hearing with opportunity for public comment at least 30 days before entering into the contract, (2) provide public notice of the meeting and the proposed contract to customers, the Public Utilities Commission, the Office of the Public Advocate, and a newspaper of general circulation, and (3) make copies of the proposed contract available to the public prior to the meeting.  The new requirements do not apply to contracts when the entity contracting with the utility is a water utility or an existing customer of the utility, or when the water to be transported falls into an exception in the laws restricting bulk transport of water.
  • LD 1269 An Act To Clarify the Laws Regarding Significant Groundwater Wells (enacted as P.L. 295) – This law amends the definition of “significant groundwater well” in the Natural Resources Protection Act.  It also clarifies rulemaking requirements concerning public information meetings and independent monitoring fees.
  • LD 1310 Resolve, Relating to a Review of International Trade Agreements and the Management of Groundwater Resources (enacted as Resolve 132, emergency measure effective June 15, 2009) – This resolve requires the Water Resources Planning Committee of the Land and Water Resources Council, in coordination with the Office of the Attorney General and the Citizen Trade Policy Commission, to examine how international trade agreements could impact the State’s ability to manage its groundwater resources.  The committee must report its findings to the Committee on Natural Resources by January 1, 2010.

Analysis:  The Legislature dealt with more than a dozen bills this year that were aimed directly or indirectly at large-scale water withdrawal.  The vast majority of the bills were defeated as a result of being unnecessary or duplicative of existing law.  The two bills that were enacted make certain that a contract with a utility for large-scale water extraction receives adequate public notice and that a significant groundwater well unconnected to a water utility’s infrastructure requires a NRPA permit from DEP.  The Legislature also passed a resolve to examine whether international trade agreements somehow affect State and local regulation of groundwater.

For more information, contact Bill Taylor at wtaylor@pierceatwood.com or (207) 791-1213 or Brian Rayback at brayback@pierceatwood.com.

Water Quality

  • LD 330 An Act To Change the Classification of Certain Waters of the State (enacted as P.L. 163) – This law revises the classification of specified rivers, streams, and other bodies of water in the State.  In addition, it requires the Department of Environmental Protection to complete a review of reclassification procedures by January 15, 2010.

Analysis:  This reclassification, the first since 2005, largely resulted in upgrading the classification of various surface waters.  Perhaps the most significant such upgrade was to a portion of the main stem of the Kennebec River, between Shawmut Dam and Messalonskee Stream, that was upgraded from Class C to Class B.  Also important, the Legislature corrected a long-standing error on Long Creek in Westbrook by downgrading the classification from B to C.

For more information, contact Bill Taylor at wtaylor@pierceatwood.com or (207) 791-1213 or Brian Rayback at brayback@pierceatwood.com or (207) 791-1188.

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As noted in the introduction, unless a new law was enacted as an emergency measure, effective when signed by the Governor, or has a specified effective date, the new law will become effective September 12, 2009.

Although the Legislature adjourned June 13, work will continue during the “off-season” with 18 study committees approved by the Legislative Council.  Two fall under the jurisdiction of the Committee on Natural Resources:  the Working Group to Examine the Legal and Policy Implementation of Groundwater Extraction, and the Community Preservation Advisory Committee.  The Legislature also directed various State entities and legislative committees to conduct reviews on various specific subjects.  In addition, stakeholder groups are expected to work on some 88 bills carried over from the First Regular Session of this Legislature.  The Appropriations Committee also is continuing to struggle with a widening budget deficit resulting from declining revenues, while the Transportation Committee is wrestling with funding the highway budget.