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are routine technical rules under Title 5, chapter 375, subchapter II-A 2-A. The fee is assessed on the first transfer of those products by oil for the transportation of waste oil pursuant to section 1319-O and is subject to

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    Be it enacted by the People of the State of Maine as follows:

     Sec. 1. 12 MRSA ?9325, sub-?1, ?E, as amended by PL 2001, c. 626, ?6, is further amended to read:

    E. Out-of-door burning of wood wastes as defined in section

    9324, subsection 7-A and painted and unpainted wood from

    construction and demolition debris in the open or in an

    incinerator with a primary chamber volume no greater than

    133 cubic feet or 1,000 gallons that is not licensed by the

    Department of Environmental Protection;

     Sec. 2. 38 MRSA ?341-G, first ?, as amended by PL 1997, c. 364, ?18, is further amended to read:

     There is established the Board of Environmental Protection

    Fund to be used by the board as a nonlapsing fund to carry out

    its duties under this Title. Notwithstanding any other provision

    of law, the funds identified in subsection 1 shall transfer

    annually to the Board of Environmental Protection Fund in an

    amount not to exceed $250,000 $325,000. Money in the Board of Environmental Protection Fund may only be expended in accordance

    with allocations approved by the Legislature.

     Sec. 3. 38 MRSA ?342, sub-?7, as amended by PL 1999, c. 127, Pt. A, ?53, is further amended to read:

     7. Representation in court. The commissioner may authorize licensed Maine attorneys with active bar status who are employees

    of the department and certified employees of the department to

    serve civil process and represent the department in District

    Court in the prosecution of violations of those laws enforced by

    the department and set forth in Title 4, section 152, subsection

    6-A. Licensed Maine attorneys do not need to file the

    certification referred to in the Maine Rules of Civil Procedure,

    Rule 80K(h). Certification of these nonattorney employees must

    be provided as under Title 30-A, section 4453.

     Sec. 4. 38 MRSA ?342, sub-?14, as enacted by PL 1991, c. 804, Pt. A, ?2, is repealed.

     Sec. 5. 38 MRSA ?347-A, sub-?1, ?A, as repealed and replaced by PL 1993, c. 204, ?1, is amended to read:

A. Whenever it appears to the commissioner, after investigation,

    that there is or has been a violation of this Title, of rules

    adopted under this Title or of the terms or conditions of a

    license, permit or order issued by the board or the commissioner,

    the commissioner may initiate an

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    enforcement action by taking one or more of the following

    steps:

     (1) Resolving the violation through an administrative

    consent agreement pursuant to subsection 4, signed by

    the violator and approved by the 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,

    initiating commencing a civil action pursuant to

    section 342, subsection 7 and the Maine Rules of Civil

    Procedure, Rule 3.

     Sec. 6. 38 MRSA ?349, sub-?9, as repealed and replaced by PL 1997, c.

    794, Pt. A, ?9, is amended to read:

     9. Unavoidable malfunctions. The following considerations

    apply to violations resulting from unavoidable malfunctions.

    A. The commissioner may exempt from civil penalty an air

    emission in excess of license limitations if the emission

    occurs during start-up or shutdown or results exclusively

    from an unavoidable malfunction entirely beyond the control

    of the licensee and the licensee has taken all reasonable

    steps to minimize or prevent any emission and takes

    corrective action as soon as possible. There may be no

    exemption if the malfunction is caused, entirely or in part,

    by poor maintenance, careless operation, poor design or any

    other reasonably preventable condition or preventable

    equipment breakdown. The burden of proof is on the licensee

    seeking the exemption under this subsection. In the event

    of an unavoidable malfunction, the licensee must notify the

    commissioner in writing within 48 hours and submit a written

    report, together with any exemption requests, to the

    department on a quarterly basis. The commissioner shall

    annually report to the joint standing committee of the

    Legislature having jurisdiction over natural resource

    matters with regard to the exercise of this authority.

B. An affirmative defense is established for a wastewater

    discharge in excess of license limitations if the discharge

    results exclusively from unintentional and temporary

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    noncompliance with technology-based limitations because of

    factors entirely beyond the reasonable control of the

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    licensee and the licensee has taken all reasonable steps to

    minimize or prevent any discharge and takes corrective action

    as soon as possible. There is not an affirmative defense if

    the malfunction is caused, entirely or in part, by operational

    error, improperly designed treatment facilities, inadequate

    treatment facilities, lack of preventive maintenance or

    careless or improper operation. The burden of proof is on the

    licensee seeking the affirmative defense under this

    subsection. In the event of an unavoidable malfunction, the

    licensee must notify the commissioner orally within 24 hours,

    and in writing within 5 days. The commissioner shall annually

    report to the joint standing committee of the Legislature

    having jurisdiction over natural resource matters with regard

    to the exercise of this authority.

     Sec. 7. 38 MRSA ?464, sub-?3, ?B, as enacted by PL 1985, c. 698, ?15,

    is amended to read:

    B. The board shall, from time to time, but at least once

    every 3 4 years, hold public hearings for the purpose of

    reviewing the water quality classification system and

    related standards and, as appropriate, recommending changes

    in the standards to the Legislature.

     Sec. 8. 38 MRSA ?480-Z, sub-?3, as enacted by PL 1997, c. 101, ?1 and

    affected by ?2, is amended to read:

     3. Compensation fee program. The department shall may develop

    a compensation fee program in consultation with the State

    Planning Office, the United States Army Corps of Engineers and

    state and federal resource agencies, including the United States

    Fish and Wildlife Service and the United States Environmental

    Protection Agency.

    A. The program must may include, at a minimum, the

    following:

     (1) Identification of wetland management priorities on

    a watershed basis;

     (2) Identification of the types of wetland losses

    eligible for compensation under this subsection;

     (3) Standards for compensation fee projects;

     (4) Calculation of compensation fees based on the functions and

    values of the affected wetlands and the cost of compensation,

    taking into account the potential

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    higher cost of compensation when a project is implemented

    at a later date; and

     (5) Methods to evaluate the long-term effectiveness of

    compensation fee projects implemented under this

    subsection in meeting the wetland management priorities

    identified pursuant to subparagraph (1).

    B. Any compensation fee must may be paid into a wetlands

    compensation fund established by the department as provided

    in subparagraph (1) or to an organization authorized by the

    department as provided in subparagraphs (1) and subparagraph

    (2). A compensation project funded in whole or in part from

    compensation fees must be approved by the department.

     (1) The department may establish a wetlands

    compensation fund for the purpose of receiving

    compensation fees, grants and other related income. The

    wetlands compensation fund must be a fund dedicated to

    payment of costs and related expenses of wetland

    restoration, enhancement, preservation and creation

    projects. The department may make payments from the

    fund consistent with the purpose of the fund. Income

    received under this subsection must be deposited with

    the State Treasurer to the credit of the wetlands

    compensation fund and may be invested as provided by

    law. Interest on these investments must be credited to

    the wetlands compensation fund.

     (2) The department may enter into an enforceable, written

    agreement with a public, quasi-public or municipal organization

    or a private, nonprofit organization dedicated to for the

    protection of wetlands and other natural areas for the purposes

    of receiving. Such an organization must demonstrate the ability

    to receive compensation fees, administering the administer a

    wetlands compensation fund and ensuring ensure that compensation projects are implemented consistent with the local, regional or state wetland management priorities identified by the department

    for the watershed in which the project is located. If

    compensation fees are provided to an authorized organization, the

    organization shall maintain records of expenditures and provide

    an annual summary report to as requested by the department. If the authorized agency is a state agency other than the

    department, the agency shall establish a fund meeting the

    requirements specified in subparagraph (1). If the organization

    does not perform in accordance with this subsection or with the

    requirements of the written agreement, the

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    department may revoke the organization's authority to

    conduct activities in accordance with this subsection. If

    an organization's authorization is revoked, any funds

    remaining in the wetlands compensation fund must be

    provided to the department.

Rules adopted pursuant to this subsection are routine technical

    rules under Title 5, chapter 375, subchapter II-A 2-A.

     Sec. 9. 38 MRSA ?480-Z, sub-??5 and 6, as amended by PL 2001, c. 232, ?17, are repealed.

     Sec. 10. 38 MRSA ?568-A, sub-?7, as enacted by PL 1997, c. 374, ?5, is amended to read:

     7. Repeal date. This section is repealed December 31, 2005

    2010.

     Sec. 11. 38 MRSA ?568-B, sub-?3 is enacted to read:

     3. Repeal date. This section is repealed December 31, 2010.

     Sec. 12. 38 MRSA ?569-A, sub-?5, ?A, as amended by PL 1999, c. 505, Pt. A, ?12, is further amended to read:

    A. Until December 31, 2005, a A fee is assessed of 38? per

    barrel of gasoline; 19? per barrel of refined petroleum

    products and their by-products other than gasoline, liquid

    asphalt and #6 fuel oil, including #2 fuel oil, kerosene,

    jet fuel and diesel fuel; and 4? per barrel of #6 fuel oil.

    The fee is assessed on the first transfer of those products

    by oil terminal facility licensees, as defined in section

    542, subsection 7, and on a person required to register with

    the commissioner under section 545-B who first transports

    oil into the State. The fee is not assessed on petroleum

    products that are exported from this State. These fees must

    be paid monthly on the basis of records certified to the

    commissioner. This subsection does not apply to waste oil

    transported into the State in any motor vehicle that has a

    valid license issued by the department for the

    transportation of waste oil pursuant to section 1319-O and

    is subject to fees established under section 1319-I.

     Sec. 13. 38 MRSA ?569-A, sub-?13, as amended by PL 1997, c. 374, ?7, is further amended to read:

     13. Repeal date. This section is repealed December 31, 2005

    2010.

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     Sec. 14. 38 MRSA ?569-B, sub-?8, as amended by PL 1997, c. 374, ?9, is

    further amended to read:

     8. Effective date. This section takes effect December 31,

    2005 2010.

     Sec. 15. 38 MRSA ?570-A, 2nd ?, as amended by PL 1997, c. 374, ?10,

    is further amended to read:

     This section is repealed December 31, 2005 2010.

     Sec. 16. 38 MRSA ?570-B, 2nd ?, as amended by PL 1997, c. 374, ?11,

    is further amended to read:

     This section is repealed December 31, 2005 2010.

     Sec. 17. 38 MRSA ?570-I, 2nd ?, as amended by PL 1997, c. 374, ?12, is

    further amended to read:

     This section takes effect December 31, 2005 2010.

     Sec. 18. 38 MRSA ?570-J, 2nd ?, as amended by PL 1997, c. 374, ?13, is

    further amended to read:

     This section is effective December 31, 2005 2010.

     Sec. 19. 38 MRSA ?570-K, sub-?5, as enacted by PL 2001, c. 605, ?3, is

    amended to read:

     5. Spill prevention and control. An aboveground oil storage facility used in the marketing and distribution of oil to others

    must be operated in compliance with the federal requirements for

    the preparation and implementation of spill prevention control

    and countermeasure plans under 40 Code of Federal Regulations,

    112 (2001) in effect on August 16, 2002. Failure to comply with those federal requirements in accordance with the deadlines set

    by the United States Environmental Protection Agency constitutes

    a violation of this Title. If the department believes that a

    facility's plan does not satisfy those federal requirements, the

    department shall request an opinion from the United States

    Environmental Protection Agency as to the legal adequacy of the

    plan and any amendment necessary to bring the facility into

    compliance with those federal requirements. The department shall

    prepare educational and technical materials for use by facilities

    affected by this subsection. This subsection is repealed October

    1, 2005.

     Sec. 20. PL 1991, c. 817, ?28, as amended by PL 1997, c. 374, ?15, is

    further amended to read:

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     Sec. 28. Effective date. That section of this Act that amends the

    Maine Revised Statutes, Title 38, section 570, first paragraph,

    as repealed and replaced by Public Law 1987, chapter 735, section

    72, takes effect December 31, 2005 2010.

     Sec. 21. PL 1991, c. 817, ?30, as amended by PL 1997, c. 374, ?16, is

    further amended to read:

     Sec. 30. Effective date. That section of this Act that amends the

    Maine Revised Statutes, Title 38, section 570, first paragraph,

    as amended by Public Law 1989, chapter 865, section 17 and

    affected by sections 24 and 25, is repealed December 31, 2005

    2010.

    SUMMARY

     This bill corrects an inadvertent error and inconsistency

    created last session when the open burning statute was amended.

     It increases the cap on allocations for the Board of

    Environmental Protection Fund within the Department of

    Environmental Protection from $250,000 annually to $325,000

    annually to meet rising personnel salary and benefit costs for

    the next several years, including the filling of the Executive

    Analyst position in the past biennium, and a rise in operating

    costs, due to a modest increase in general workload from broader

    public involvement in the licensing and appeal processes, which

    has resulted in more frequent meetings of the board. The last

    increase in the allocation cap was in 1997.

     It clarifies the statute governing the Department of

    Environmental Protection's enforcement authority. The Maine

    Rules of Civil Procedure, Rule 80K allows the department and

    municipalities to prosecute environmental violations in District

    Court. Municipalities consistently have 80K actions commenced by

    both certified nonlawyer code enforcement officers and town

    attorneys. The department has historically not had employees who

    are also licensed active members of the bar file cases on the

    department's behalf since the rule is ambiguous as to whether

    such a practice is appropriate. This change in the law makes

    clear that a department practice consistent with current

    municipal practices is appropriate.

     It repeals the enabling language for the requirement of

    priority studies because the tasks described in the statute have

    been completed and the project is no longer active.

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