An Act To Restore the Authority of the Board of Environmental Protection
Sec. 1. 32 MRSA §4174, 2nd and 3rd ¶¶, as amended by PL 2017, c. 137, Pt. A, §2, are further amended to read:
The commissioner Department of Environmental Protection shall establish the criteria and conditions for the classification of wastewater treatment plants or systems, using as a basis the standards established by the New England Water Pollution Control Association.
The commissioner Department of Environmental Protection shall establish by rule the qualifications, conditions and licensing standards and procedures for the certification of individuals to act as operators.
Sec. 2. 32 MRSA §4179, as amended by PL 2017, c. 137, Pt. A, §3, is further amended to read:
§ 4179. Rules
The commissioner Department of Environmental Protection shall adopt rules that include, but are not limited to, provisions establishing the basis for classification of treatment plants in accordance with section 4172 and provisions establishing requirements for certification and procedures for examination of candidates.
Sec. 3. 38 MRSA §341-B, as amended by PL 2011, c. 304, Pt. H, §1, is further amended to read:
§ 341-B. Rules
The purpose of the Board of Environmental Protection is to provide informed, independent and 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 major substantive rulemaking, decisions on selected permit applications, decisions on appeals of the commissioner's licensing and actions, review of the commissioner's enforcement actions and recommending changes in the law to the Legislature.
Sec. 4. 38 MRSA §341-D, sub-§6, as repealed and replaced by PL 2011, c. 304, Pt. H, §11, is further amended to read:
Sec. 5. 38 MRSA §341-H, as amended by PL 2011, c. 538, §1, is further amended to read:
§ 341-H. Departmental rulemaking
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 as provided in this section.
Subject to Title 5, chapter 375, subchapter 2-A, the board may adopt, amend or repeal reasonable rules and emergency rules necessary for the interpretation, implementation and enforcement of any provision of law that the department is charged with administering as provided in this section. 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.
Sec. 6. 38 MRSA §342, sub-§9, as amended by PL 2011, c. 304, Pt. H, §15, is further amended to read:
Sec. 7. 38 MRSA §342, sub-§11-A, as amended by PL 2011, c. 304, Pt. H, §16, is further amended to read:
Sec. 8. 38 MRSA §347-A, sub-§1, ¶A, as amended by PL 2011, c. 304, Pt. H, §19, is further amended to read:
(1) Resolving the violation through an administrative consent agreement pursuant to subsection 4, signed by the violator and approved by the commissioner board and the Attorney General;
(2) Referring the violation to the Attorney General for civil or criminal prosecution;
(3) Scheduling and holding an enforcement hearing on the alleged violation pursuant to subsection 2; or
(4) With the prior approval of the Attorney General, commencing a civil action pursuant to section 342, subsection 7 and the Maine Rules of Civil Procedure, Rule 3.
Sec. 9. 38 MRSA §347-A, sub-§4, ¶D, as amended by PL 2011, c. 304, Pt. H, §20, is further amended to read:
Sec. 10. 38 MRSA §347-A, sub-§6, ¶A, as amended by PL 2011, c. 538, §6, is further amended to read:
Sec. 11. 38 MRSA §568-A, sub-§3, as amended by PL 2017, c. 137, Pt. A, §13, is further amended to read:
Sec. 12. 38 MRSA §1319-O, as amended by PL 2015, c. 124, §9, is further amended to read:
§ 1319-O. Rule-making authority; hazardous waste, waste oil and biomedical waste
Hazardous waste may be identified as follows.
(1) The commissioner department may identify any substance as a hazardous waste if that substance is identified as hazardous by particular substance, by characteristic, by chemical class or as a waste product of a specific industrial activity in proposed or final rules of the United States Environmental Protection Agency.
(2) The commissioner department may identify any substance as a hazardous waste if the commissioner department, after evaluation based on existing data or data reasonably extrapolated from previously conducted studies using similar classes of substances or compounds under similar circumstances, has determined that the substance is an acute or chronic toxin causing significant potential adverse public health or environmental effects. An acute or chronic toxin may include the characteristics of:
(c) Teratogenicity; or
Rules adopted under this subparagraph must be submitted to the joint standing committee of the Legislature having jurisdiction over natural resources for review.
(3) Whenever the commissioner department proposes to adopt or amend rules identifying hazardous waste or removing hazardous waste from identification, the comissioner department shall hold a public hearing.
(4) In addition to hazardous waste identified under subparagraphs (1) and (2), the Legislature identifies the following chemicals, materials, substances or waste as being hazardous waste:
(a) Polychlorinated biphenyls and any substance containing polychlorinated biphenyls.
(1) Containerization and labeling of hazardous waste, consistent with applicable rules of other federal and state agencies;
(2) Reporting of handling of hazardous waste; and
(3) Waste that is not compatible.
(1) Licensing of transporters of hazardous waste, conveyances used for the transportation of hazardous waste and the operators of these conveyances; and licensing fees must be paid to the Maine Hazardous Waste Fund; and
(2) A manifest system for hazardous waste that takes into consideration the requirements of the United States Resources Conservation and Recovery Act of 1976, Public Law 94-580, as amended, and this subchapter.
(1) Standards for the safe operation and maintenance of the waste facilities, including, but not limited to, record keeping, monitoring before and during operation of the facility and after its termination of use or closure, inspections and contingency plans to minimize potential damage from hazardous waste;
(2) The training of personnel and the certification of supervisory personnel involved in the operation of the waste facilities;
(3) The termination, closing and potential future uses of the waste facilities;
(4) Rules equivalent to regulations of the United States Environmental Protection Agency that provide for licensing or permitting by rule; and
(5) Corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage or disposal facility seeking a permit under this subchapter, regardless of the time waste was placed in the unit. For purposes of this paragraph, "solid waste management unit" includes any waste pile, landfill, surface impoundment or land treatment facility from which hazardous constituents might migrate, regardless of whether the unit was intended for the management of solid or hazardous wastes.
(1) Liability insurance;
(2) Bonding; and
(3) Financial ability to comply with statutory and regulatory requirements or conditions.
Evidence of financial capacity required by the commissioner department may include one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit or qualification as a self-insurer. In establishing the required evidence of financial capacity to further the purposes of this subchapter, the commissioner department may specify policy or other contractual terms, conditions or defenses that are necessary or that are unacceptable.
(1) Registration of biomedical waste generators;
(2) Handling of biomedical waste by generators;
(3) Licensing of biomedical waste transporters and the conveyances used for the transportation of biomedical waste;
(4) Implementation of a biomedical waste tracking or manifest system;
(5) Establishment of treatment and disposal standards; and
(6) Categories of biomedical waste subject to regulation under this subsection, consistent with the provisions of section 1303-C, subsection 1-A.
(1) The generator or an employee of the generator to transport properly packaged sharps to a licensed biomedical waste disposal facility or another medical facility that has volunteered to serve as a collection point for sharps if no more than 50 pounds of sharps are transported in one trip; and
(2) The generator to mail properly packaged sharps to a licensed biomedical waste disposal facility in this State or a facility in another state if the carrier accepts those items and no more than 50 pounds are transported in any single package.
For purposes of this paragraph, "sharps" means items that may cause puncture wounds or cuts, including hypodermic needles, syringes, scalpel blades, capillary tubes and lancets, and "properly packaged" means packaged in accordance with department rules and rules or requirements imposed by the mail carrier.
Sec. 13. 38 MRSA §1362, sub-§1, ¶A, as amended by PL 2017, c. 475, Pt. A, §67, is further amended to read:
Sec. 14. 38 MRSA §1609, sub-§13, as amended by PL 2009, c. 610, §6, is further amended to read:
The commissioner's department's rulemaking under this subsection must be made in accordance with Title 5, chapter 375, subchapter 2-A. The department shall report any rulemaking undertaken pursuant to this subsection to the joint standing committee of the Legislature having jurisdiction over natural resources matters. The joint standing committee of the Legislature having jurisdiction over natural resources matters may submit legislation relating to the department's report. For purposes of this subsection, "flame retardant" means any chemical that is added to a plastic, foam or textile to inhibit flame formation. Rules adopted pursuant to this subsection are routine technical rules.
Sec. 15. 38 MRSA §1691, sub-§11, as enacted by PL 2007, c. 643, §2, is further amended to read:
Sec. 16. 38 MRSA §1694, sub-§§1 and 2, as amended by PL 2011, c. 319, §5, are further amended to read:
Sec. 17. 38 MRSA §1694, last ¶, as enacted by PL 2007, c. 643, §2, is amended to read:
The commissioner department shall adopt rules to implement the provisions of this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 18. 38 MRSA §1697, sub-§6, as enacted by PL 2007, c. 643, §2, is amended to read:
Sec. 19. 38 MRSA §3106, sub-§8, ¶A, as enacted by PL 2015, c. 166, §14, is amended to read:
Sec. 20. Transition provisions. The following transition provisions apply to changes in rulemaking and the impact on pending proceedings.
1. Effect on existing rules. All rules adopted by the Commissioner of Environmental Protection prior to the effective date of this Act continue in effect until amended or rescinded by the Board of Environmental Protection; and
2. Effect on pending proceedings. All regulatory proceedings pending before the Board of Environmental Protection or the Commissioner of Environmental Protection on the effective date of this Act are subject to the Maine Revised Statutes, Title 1, section 302.
This bill amends the responsibilities and duties of the Board of Environmental Protection. The bill:
1. Moves all rulemaking authority of the Department of Environmental Protection to the board;
2. Adds to the board's enforcement responsibilities the duty to approve administrative consent agreements and to advise the commissioner on enforcement priorities and activities and on the adequacy of penalties and enforcement activities; and
3. Includes transition language to provide for the orderly transition of the rulemaking authority and for procedures pending before the department on the effective date of this legislation.