CHAPTER 538
S.P. 150 - L.D. 429
An Act to Protect the Potato Industry from the Spread of Serious Disease
Emergency preamble. Whereas, Acts of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, the need to ensure the proper disposal of cull potatoes and to prevent the importation of potato diseases is immediate; and
Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 7 MRSA §1007-A, as enacted by PL 1995, c. 261, §2, is repealed and the following enacted in its place:
§1007-A. Improperly maintaining potato cull piles; public nuisance
1. Declaration of public nuisance. The Legislature declares that the A2 strain of late blight and other potato diseases constitute a clear and present danger to the potato industry in the State, which is a significant part of the State's economy. Control of the A2 strain of potato blight and other potato diseases requires the proper disposal of potato cull piles. The Legislature finds it necessary to exercise the police power of the State to require proper disposal of cull potatoes and potato cull piles and to provide procedures for the disposal of these potatoes by the department when the owner fails to comply with the requirements of this section. In addition to constituting a civil violation as prescribed in this section, potato cull piles that are not managed and disposed of in accordance with these requirements are considered a public nuisance.
2. Disposal requirements. The owner or lessee of any real property on which potatoes are grown, or on which potato cull piles are maintained or disposed of, shall properly dispose of potato culls and cull piles in order to destroy the A2 strain of potato blight and other potato diseases. The commissioner shall adopt rules in accordance with subsection 3 to prescribe the proper disposal of potato culls and potato cull piles. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. Proper disposal must occur on or before June 10th of each year. No cull piles may be maintained between June 10th and October 1st of each year. By emergency or other rule-making procedures, the commissioner may vary these dates when the type of disposal method or other circumstances require that cull piles be destroyed in order to prevent the spread of significant disease.
3. Rules. The commissioner may adopt any rules necessary to implement this section in accordance with the Maine Administrative Procedure Act, except that the commissioner may shorten or suspend the notice and hearing requirements as necessary to respond to any threat of disease. Prior to adopting any rules under this section, the commissioner shall consult with the Maine Potato Board except in an emergency. In addition, the commissioner may determine best management practices for the handling of cull potatoes and cull piles in accordance with Title 17, section 2805.
4. Department action. The commissioner may take action to properly dispose of potato culls and cull piles that violate the requirements of this section or any rules of the commissioner adopted to implement this section. The commissioner or the commissioner's designee is authorized to enter any property to inspect potato cull piles and to take any action required to secure their proper disposal. Designated representatives of the commissioner may, without search warrant, enter at reasonable times any real property, other than a building, where potatoes are grown, stored, packed, loaded for shipment or handled, and may enter any building, either with the consent of the owner, lessee, occupant or agent or pursuant to an administrative search warrant. Notwithstanding the Maine Rules of Civil Procedure, Rule 80E, paragraph (b), the commissioner or the commissioner's designee may obtain an administrative search warrant pursuant to this section by describing the premises to be entered and the purpose of the inspection or other authorized action and by demonstrating that the entry is necessary in order to inspect potato cull piles or otherwise carry out the requirements of this section. This demonstration is deemed to be a demonstration of probable cause.
The costs incurred by the department in removing and properly disposing of cull potatoes and cull piles must be reimbursed by the owner or lessee of the property on which the potatoes were found or any other person responsible for the potatoes, each of whom is jointly and severally liable for those costs to the department. The department, its employees and agents and any person acting on behalf of the department are not liable for any action taken pursuant to this section.
5. Potato Cull Removal Fund. The Potato Cull Removal Fund is established to be used by the department to administer and enforce the provisions of this section and to pay any expenses of potato cull removal and disposal. The commissioner may receive funds from any source to be deposited into this fund, which does not lapse. If at any time the balance of the fund falls below $15,000, any penalties collected under this section must be deposited into the fund. Otherwise, penalties collected must be deposited into the General Fund.
6. Civil penalties. Any person who violates any of the requirements of this section or any rules adopted under this section commits a civil violation for which a forfeiture of not more than $1,000 for each violation, together with not more than $200 for each succeeding day of a continuing violation, may be adjudged.
Sec. 2. 7 MRSA §2103-A, sub-§1, as enacted by PL 1987, c. 336, is amended to read:
1. Certification required. Seed potatoes shall may not be certified beyond 5 generations of the seed originally acquired from a nuclear seed generation source meeting criteria established by the department's rules. Seed potatoes imported into the State shall must meet the State's certification standards and all import certificates shall must designate the imported seed's generation, which shall must equal and compare to a state certified seed designation. The imported seed shall must "flush out" at the same rate as the equivalent state seed generation. The commissioner may test, or cause to be tested, a seed lot imported into the State if the commissioner has reason to believe the seed lot is, or may be infected with a potato disease that poses a risk to the well-being of the State's potato industry. A person importing seed or receiving imported seed that the commissioner indicates must be tested shall submit a sample for testing. A person may not plant seed from an imported seed lot required to be tested under this subsection until the seed sample is tested and meets allowable disease standards for seed potatoes produced in the State.
Emergency clause. In view of the emergency cited in the preamble, this Act takes effect when approved.
Effective June 12, 1997.
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