An Act To Stabilize and Streamline the Department of Environmental Protection's Ground Water Oil Clean-up Fund and Maine Coastal and Inland Surface Oil Clean-up Fund
Sec. 1. 5 MRSA §12004-G, sub-§11-A, as enacted by PL 1993, c. 363, §1 and affected by §21, is amended to read:
| Environment/ Natural Resources | Clean-up and Response Fund Insurance Review Board | Expenses Only for Certain Members | 38 MRSA §568-B |
Sec. 2. 5 MRSA §12004-I, sub-§24-B, as enacted by PL 1991, c. 698, §1, is repealed.
Sec. 3. 10 MRSA §1024, sub-§1, as amended by PL 2003, c. 537, §29 and affected by §53, is further amended to read:
Sec. 4. 32 MRSA §10012, sub-§2, as amended by PL 2007, c. 497, §1, is further amended to read:
Sec. 5. 32 MRSA §10015, first ¶, as amended by PL 2005, c. 330, §2, is further amended to read:
The jurisdiction to suspend or revoke certificates conferred by this section is concurrent with that of the Superior Court. Civil penalties accrue to the Maine Ground Water Oil and Surface Waters Clean-up and Response Fund. Any nonconsensual action under subsection 2-A taken under authority of this section may be imposed only after a hearing conforming to the requirements of Title 5, chapter 375, subchapter 4, and is subject to judicial review exclusively in the Superior Court in accordance with Title 5, chapter 375, subchapter 7, notwithstanding any other provision of law.
Sec. 6. 32 MRSA §10016, sub-§5, as enacted by PL 2007, c. 497, §2, is further amended to read:
A person who violates the terms of an injunction issued under this subsection shall pay to the State a fine of not more than $10,000 for each violation. In an action under this subsection, when a permanent injunction has been issued, the court may order the person against whom the permanent injunction is issued to pay to the Maine Ground Water Oil and Surface Waters Clean-up and Response Fund under Title 38, chapter 3, subchapter 2-B 2-A the costs of the investigation of that person by the Attorney General and the costs of suit, including attorney's fees. In an action by the Attorney General brought against a person for violating the terms of an injunction issued under this subsection, the court may make the necessary orders or judgments to restore to a person who has suffered any ascertainable loss any money or personal or real property or to compel the return of compensation received by reason of such conduct found to be in violation of an injunction.
[PL 2007, c. 497, § 2 (NEW).]Sec. 7. 38 MRSA §341-G, sub-§1, as amended by PL 1991, c. 817, §8, is further amended to read:
Sec. 8. 38 MRSA §342-B, sub-§5, as enacted by PL 1993, c. 355, §4, is amended to read:
Sec. 9. 38 MRSA §542, sub-§4, as enacted by PL 1969, c. 572, §1, is amended to read:
Sec. 10. 38 MRSA §542, sub-§5, as amended by PL 1985, c. 496, Pt. A, §6, is further amended to read:
Sec. 11. 38 MRSA §542, sub-§6, as amended by PL 2011, c. 206, §12, is further amended to read:
Sec. 12. 38 MRSA §542, sub-§8, as enacted by PL 1969, c. 572, §1, is amended to read:
Sec. 13. 38 MRSA §542, sub-§9-C, as enacted by PL 1997, c. 364, §25, is amended to read:
Sec. 14. 38 MRSA §548, 2nd ¶, as amended by PL 1991, c. 817, §10, is further amended to read:
Any unexplained discharge of oil within state jurisdiction or discharge of oil occurring in waters beyond state jurisdiction that for any reason penetrates within state jurisdiction must be removed by or under the direction of the commissioner. Any expenses involved in the removal or cleanup of discharges, including the restoration of water supplies contaminated by discharges from interstate pipelines and other discharges prohibited by section 543, whether by the person reporting the discharge, the commissioner or the commissioner's agents or contractors, must be paid in the first instance from the Maine Coastal Ground and Inland Surface Oil Waters Clean-up and Response Fund and any reimbursements due that fund must be collected in accordance with section 551.
Sec. 15. 38 MRSA §549, as amended by PL 2013, c. 405, Pt. C, §23, is further amended to read:
§ 549. Personnel and equipment
The commissioner shall establish and maintain at such ports within the State, and other places as the commissioner determines, employees and equipment necessary to carry out this subchapter. The commissioner, subject to the Civil Service Law, may employ personnel necessary to carry out the purposes of this subchapter, and shall prescribe the duties of those employees. The salaries of those employees and the cost of that equipment must be paid from the Maine Coastal Ground and Inland Surface Oil Waters Clean-up and Response Fund established by this subchapter. The commissioner and the Director of the Division of Geology, Natural Areas and Coastal Resources shall periodically consult with each other relative to procedures for the prevention of oil discharges into the coastal waters of the State from offshore drilling production facilities. Inspection and enforcement employees of the department in their line of duty under this subchapter have the powers of a constable.
Sec. 16. 38 MRSA §551, as amended by PL 2013, c. 349, §1, is further amended to read:
§ 551. Maine Ground and Surface Waters Clean-up and Response Fund
The Maine Coastal Ground and Inland Surface Oil Waters Clean-up and Response Fund is established to be used by the department as a nonlapsing, revolving fund for carrying out the purposes of this subchapter. The balance in the fund is limited to $6,000,000, the sum of which includes all funds credited under this section $15,000,000. The Department of Environmental Protection shall collect fees in accordance with subsection 4. To this fund are credited all license and registration fees, fees for late payment or failure to register, penalties, transfer fees, reimbursements , assessments and other fees and charges related to this subchapter , and to . To this fund are charged any and all expenses of the department related to this subchapter, including administrative expenses, costs of removal of discharges of pollutants, 3rd-party damages, costs of cleanup of discharges of oil and oil by-products, including, but not limited to, restoration of water supplies and 3rd-party damages covered by this subchapter any obligations of the State pursuant to Title 10, section 1024, subsection 1.
Money in the fund , not needed currently to meet the obligations of the department in the exercise of its responsibilities under this subchapter must be deposited with the Treasurer of State to the credit of the fund , and may be invested in such manner as is provided for by statute. Interest received on that investment must be credited to the Maine Coastal and Inland Surface Oil Clean-up Fund fund.
(1) A 3rd party may not recover damages under this subchapter for expenses incurred in treating or replacing the well if the well is installed in an area delineated as contaminated as provided in section 548, subsection 1; and
(2) A 3rd-party damage claim under this subchapter with regard to treatment or replacement of the well is limited to reimbursement of the expense of installing the well and its proper abandonment if the well is installed in any other area.
For purposes of this paragraph, "viable community public water system" has the same meaning as in section 548.
(1) Three cents per barrel of unrefined crude oil and liquid asphalt;
(2) Seven cents per barrel of #6 fuel oil;
(3) Twenty-two cents per barrel of #2 fuel oil, kerosene, jet fuel, diesel fuel and other refined products and their by-products not otherwise specified in this subsection, excluding liquid asphalt; and
(4) Forty-one cents per barrel of gasoline.
This paragraph 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, subsection 1, paragraph C and is subject to fees established under section 1319-I.
(1) Criteria for determining those instances when funds should be disbursed under this paragraph, including criteria for determining what constitutes a sensitive geologic area;
(2) Guidelines that ensure that money disbursed from the fund under this paragraph will be used in the most cost-effective manner, considering the likelihood of actual contamination of water supplies absent action taken pursuant to this paragraph, the costs of remediation of such contamination and the possibility that the owner of an aboveground oil storage tank or facility would retrofit, repair, replace or remove the tank at the owner's own expense;
(3) Guidelines for payments to municipalities for reasonable administrative costs actually incurred by municipalities in assisting the department in taking actions under this paragraph;
(4) A means test for eligibility for disbursements from the fund;
(5) A deductible that is adjusted according to the financial means of the person receiving a disbursement; and
(6) Limits for eligibility to residents of this State; and
Requests for reimbursement to the fund, if not paid within 30 days of demand, may be turned over to the Attorney General for collection or may be submitted to a collection agency or agent or an attorney retained by the department with the approval of the Attorney General in conformance with Title 5, section 191, or the department may file suit in District Court. The commissioner may file claims with appropriate federal agencies to recover for the use of the fund all disbursements from the fund in connection with a prohibited discharge.
Requests for reimbursement to the fund for disbursements pursuant to subsection 5, paragraph B, if not paid within 60 days of demand, are subject to a penalty not to exceed twice the total amount of reimbursement requested. This penalty is in addition to the reimbursement requested and any other fines or civil penalties authorized by this Title.
A certificate of lien signed by the commissioner must be sent by certified mail to the responsible party prior to being recorded and may be filed in the office of the clerk of the municipality in which the real estate is located. The lien is effective when the certificate is recorded with the registry of deeds for the county in which the real estate is located. The certificate of lien must include a description of the real estate, the amount of the lien and the name of the owner as grantor.
When the amount for which a lien has been recorded under this subsection has been paid or reduced, the commissioner, upon request by any person of record holding interest in the real estate that is the subject of the lien, shall issue a certificate discharging or partially discharging the lien. The certificate must be recorded in the registry in which the lien was recorded. Any action of foreclosure of the lien must be brought by the Attorney General in the name of the State in the Superior Court for the judicial district in which the real estate subject to the lien is located.
Upon such finding by the board, immediate credit therefor must be entered for the party involved. The findings of the board are conclusive as it is the legislative intent that waiver provided in this subsection is a privilege conferred, not a right granted.
Sec. 17. 38 MRSA §551-A, as amended by PL 2007, c. 292, §§30 to 32, is repealed.
Sec. 18. 38 MRSA §562-A, sub-§4-A is enacted to read:
Sec. 19. 38 MRSA §562-A, sub-§9, as enacted by PL 1989, c. 865, §2, is amended to read:
Sec. 20. 38 MRSA §562-A, sub-§9-A, as enacted by PL 1993, c. 363, §4 and affected by §21, is repealed.
Sec. 21. 38 MRSA §562-A, sub-§17, ¶E, as amended by PL 2007, c. 655, §3, is further amended to read:
Sec. 22. 38 MRSA §566-A, sub-§4, as amended by PL 2009, c. 121, §11, is further amended to read:
Sec. 23. 38 MRSA §568, sub-§1, as amended by PL 2009, c. 121, §12, is further amended to read:
Sec. 24. 38 MRSA §568, sub-§6, as enacted by PL 1991, c. 763, §7, is amended to read:
Sec. 25. 38 MRSA §568-A, sub-§1, ¶A, as amended by PL 1995, c. 361, §4, is further amended to read:
(1) A description of the discharge and the locations threatened or affected by the discharge, to the extent known;
(2) An agreement that the applicant shall pay the deductible amount specified in subsection 2;
(3) For underground storage facilities, documentation regarding the applicant's compliance with the requirements of subsection 2, paragraph B; and
(4) For aboveground facilities, documentation required by the Clean-up and Response Fund Insurance Review Board.
The commissioner with respect to a claim involving an underground oil storage facility, or the State Fire Marshal with respect to a claim involving an aboveground oil storage facility, may waive the 180-day filing requirement for applicants for coverage of clean-up costs for discharges discovered after April 1, 1990 when the applicant has cooperated in a timely manner with the department in cleaning up the discharge.
Sec. 26. 38 MRSA §568-A, sub-§1, ¶H, as enacted by PL 1995, c. 361, §4, is amended to read:
Sec. 27. 38 MRSA §568-A, sub-§2, as amended by PL 2013, c. 300, §11, is further amended to read:
(1) For expenses related to a leaking underground oil storage facility, the deductible amount is determined in accordance with the following schedule:
| Number of underground storage facilities owned by the facility owner | Deductible |
| 1 | $2,500 |
| 2 to 5 | 5,000 |
| 6 to 10 | 10,000 |
| 11 to 20 | 25,000 |
| 21 to 30 | 40,000 |
| over 30 | 62,500 |
(2) For expenses related to a leaking aboveground oil storage facility, the deductible amount is determined in accordance with the following schedule:
| Total aboveground oil storage capacity in gallons owned by the facility owner | Deductible |
| Less than 1,320 | $500 $2,500 |
| 1,321 to 50,000 | 2,500 5,000 |
| 50,001 to 250,000 | 5,000 10,000 |
| 250,001 to 500,000 | 10,000 25,000 |
| 500,001 to 1,000,000 | 25,000 40,000 |
| 1,000,001 to 1,500,000 | 40,000 |
| greater than 1,500,000 1,000,000 | 62,500 |
(3) For facilities with both aboveground and underground tanks when the source of the discharge can not be determined or when the discharge is from both types of tanks, the standard deductible is the applicable amount under subparagraph (1) or (2), whichever is greater.
(4) For aboveground tanks regulated by the Maine Fuel Board with less than 300 gallons' storage capacity, the standard deductible may be waived by the commissioner upon submission of documentation of a passing ultrasonic thickness test of the tank conducted within 12 months prior to the discharge.
(1) For nonconforming facilities and tanks, the deductible is $10,000 for failure to meet the compliance schedule in section 563-A, except that those facilities or tanks required to be removed by October 1, 1989 have until October 1, 1990 to be removed before they are considered out of compliance.
(2) For failure to pay registration fees under section 563, subsection 4, the deductible is the total of all past due fees.
(3) For motor fuel storage and marketing and retail facilities, the deductibles are:
(a) Five thousand dollars for failure to comply with applicable design and installation requirements in effect at the time of the installation or retrofitting requirements for leak detection pursuant to section 564, subsections 1 and 1-A;
(b) Five thousand dollars for failure to comply with section 564, subsection 1-B and any rules adopted pursuant to that subsection;
(c) Five thousand dollars for failure to comply with section 564, subsection 2-A, paragraphs B to F and I, and any rules adopted pursuant to that subsection; and
(d) Ten thousand dollars for failure to comply with section 564, subsection 2-A, paragraph H, and any rules adopted pursuant to that subsection.
(4) For consumptive use heating oil facilities with an aggregate storage capacity of less than 2,000 gallons, the deductibles are:
(a) Two Five thousand dollars for failure to comply with section 565, subsection 1, if applicable;
(b) Two Five thousand dollars for failure to comply with section 565, subsection 2, regarding monitoring; and
(c) Two Five thousand dollars for failure to comply with section 565, subsection 2, regarding any requirement to report evidence of a possible leak or discharge.
(5) For consumptive use heating oil facilities with an aggregate storage capacity of 2,000 gallons or greater, the deductibles are:
(a) Five Ten thousand dollars for failure to comply with section 565, subsection 1, if applicable;
(b) Five Ten thousand dollars for failure to comply with section 565, subsection 2, regarding monitoring; and
(c) Ten Fifteen thousand dollars for failure to comply with section 565, subsection 2, regarding any requirement to report evidence of a possible leak or discharge.
(6) For waste oil and heavy oil and airport hydrant facilities with discharges that are not contaminated with hazardous constituents, the deductibles for failure to comply with rules adopted by the board are:
(a) Five thousand dollars for rules regarding design and installation requirements in effect at the time of the installation;
(b) Five thousand dollars for rules regarding retrofitting of leak detection and corrosion protection, if applicable;
(c) Five thousand dollars for rules regarding overfill and spill prevention;
(d) Five thousand dollars for rules regarding the monitoring of cathodic protection systems;
(e) Five thousand dollars for rules regarding testing requirements for tanks and piping on evidence of a leak;
(f) Five thousand dollars for rules regarding maintenance of a leak detection system; and
(g) Ten thousand dollars for rules regarding the reporting of leaks.
(1) For aboveground tanks subject to the jurisdiction of the State Fire Marshal pursuant to 16-219 CMR, chapter 34, the deductibles are:
(a) Five thousand dollars for failure to obtain a construction permit from the Office of the State Fire Marshal, when required under Title 25, chapter 318 and 16-219 CMR, chapter 34 or under prior applicable law;
(b) Five thousand dollars for failure to design and install piping in accordance with section 570-K and rules adopted by the department;
(c) Five thousand dollars for failure to comply with an existing consent decree, court order or outstanding deficiency statement regarding violations at the aboveground facility;
(d) Five thousand dollars for failure to implement a certified spill prevention control and countermeasure plan, if required;
(e) Five thousand dollars for failure to install any required spill control measures, such as dikes;
(f) Five thousand dollars for failure to install any required overfill equipment;
(g) Five thousand dollars if the tank is not approved for aboveground use; and
(h) Ten thousand dollars for failure to report any leaks at the facility.
(2) For aboveground tanks subject to the jurisdiction of the Maine Fuel Board, the deductibles are:
(a) One hundred and fifty dollars for failure to install the facility in accordance with rules adopted by the Maine Fuel Board and in effect at the time of installation;
(b) Two hundred and fifty dollars for failure to comply with the rules of the Maine Fuel Board;
(c) Two hundred and fifty dollars for failure to make a good faith effort to properly maintain the facility; and
(d) Five hundred dollars for failure to notify the department of a spill.
The commissioner shall make written findings of fact when making a determination of deductible amounts under this subsection. The commissioner's findings may be appealed to the Clean-up and Response Fund Insurance Review Board, as provided in section 568-B, subsection 2-C. On appeal, the burden of proof is on the commissioner as to which deductibles apply.
After determining the deductible amount to be paid by the applicant, the commissioner shall pay from the fund any additional eligible clean-up costs and 3rd-party damage claims up to $1,000,000 for underground oil storage facilities and up to $750,000 for all other occurrences associated with activities under section 569-A 551, subsection 8 5, paragraphs B, D and J K. The commissioner shall pay the expenses directly, unless the applicant chooses to pay the expenses and seek reimbursement from the fund. The commissioner may pay from the fund any eligible costs above $1,000,000 for underground oil storage facilities and above $750,000 for all other occurrences, but the commissioner shall recover these expenditures from the responsible party pursuant to section 569-A 551.
An applicant found ineligible for fund coverage for failure to achieve substantial compliance under former subsection 1, paragraph B or failure to apply within 180 days of reporting the discharge may, on or before July 1, 1996, make a new application for fund coverage of any discharge discovered after April 1, 1990, if the applicant agrees to pay all applicable deductible amounts in this subsection and the commissioner waives the 180-day filing requirement pursuant to subsection 1.
Sec. 28. 38 MRSA §568-A, sub-§3, as enacted by PL 1989, c. 865, §15 and affected by §§24 and 25, is amended to read:
Sec. 29. 38 MRSA §568-A, sub-§6, as enacted by PL 1993, c. 553, §1 and affected by §7, is amended to read:
Sec. 30. 38 MRSA §568-A, sub-§7, as amended by PL 2009, c. 319, §12, is repealed.
Sec. 31. 38 MRSA §568-B, as amended by PL 2013, c. 22, §§1 and 2, is further amended to read:
§ 568-B. Clean-up and Response Fund Review Board created
Members other than those described in paragraphs A, A-1 C and B D are entitled to reimbursement for direct expenses of attendance at meetings of the review board or the appeals panel.
Sec. 32. 38 MRSA §569-A, as amended PL 2013, c. 300, §12, is repealed.
Sec. 33. 38 MRSA §569-B, as amended by PL 2009, c. 501, §12, is repealed.
Sec. 34. 38 MRSA §570, first ¶, as repealed and replaced by PL 2009, c. 319, §16 and affected by §§22 and 23, is amended to read:
The intent of this subchapter is to provide the means for rapid and effective cleanup and to minimize direct and indirect damages and the proliferation of 3rd-party claims. Accordingly, each responsible party is jointly and severally liable for all disbursements made by the State pursuant to section 569-A 551, subsection 8 5, paragraphs A, B, D, E, H I and J K, or other damage incurred by the State, except for costs found by the commissioner to be eligible for coverage under section 568-A. The term "other damages," as used in this paragraph, includes interest computed at 15% a year from the date of expenditure and damage for injury to, destruction of, loss of or loss of use of natural resources , and the reasonable costs of assessing natural resources damage and the costs of preparing and implementing a natural resources restoration plan. The commissioner shall demand reimbursement of costs and damages paid by the department from state or federal funds as provided under section 569-A 551, subsection 10 6 except for amounts that are eligible for coverage by the fund under this subchapter. Payment must be made promptly by the responsible party or parties upon whom the demand is made. If payment is not received by the State within 30 days of the demand, the Attorney General may file suit in the Superior Court or the department may file suit in District Court and, in addition to relief provided by other law, may seek punitive damages as provided in section 568. Notwithstanding the time limits stated in this paragraph, neither a demand nor other recovery efforts against one responsible party may relieve any other responsible party of liability. This paragraph is repealed December 31, 2015.
Sec. 35. 38 MRSA §570, 2nd ¶, as enacted by PL 2009, c. 319, §17, is repealed.
Sec. 36. 38 MRSA §570-A, as amended by PL 2009, c. 319, §18, is repealed.
Sec. 37. 38 MRSA §570-B, as amended by PL 2009, c. 319, §19, is repealed.
Sec. 38. 38 MRSA §570-I, as amended by PL 2009, c. 319, §20, is further amended to read:
§ 570-I. Budget approval
The commissioner shall submit budget recommendations for disbursements from the fund in accordance with section 569-B 551, subsection 5, paragraphs A, C, F and G H for each biennium. The budget must be submitted in accordance with Title 5, sections 1663 to 1666. The State Controller shall authorize expenditures from the fund as approved by the commissioner. Expenditures pursuant to section 569-B 551, subsection 5, paragraphs B, D and , E and I to O may be made as authorized by the State Controller following approval by the commissioner.
This section takes effect December 31, 2015.
Sec. 39. 38 MRSA §570-J, as amended by PL 2009, c. 319, §21, is further amended to read:
§ 570-J. Personnel and equipment
The commissioner shall establish and maintain at appropriate locations employees and equipment that, in the commissioner's judgment, are necessary to carry out this subchapter. The commissioner, subject to the Civil Service Law, may employ personnel necessary to carry out the purposes of this subchapter and shall prescribe the duties of those employees. The salaries of those employees and the cost of that equipment must be paid from the Ground Water Oil Clean-up Fund fund established by this subchapter 2-A.
This section is effective December 31, 2015.
Sec. 40. 38 MRSA §570-L, as enacted by PL 1993, c. 363, §18 and affected by §21, is amended to read:
§ 570-L. Budget approval; aboveground tanks program
This section establishes a budget process for expenses of the State Fire Marshal and the Clean-up and Response Fund Insurance Review Board.
Sec. 41. 38 MRSA §1396, as enacted by PL 2007, c. 569, §6, is amended to read:
§ 1396. Financial assistance for upgrading aboveground oil storage tanks or facilities
The commissioner may disburse money from the Maine Ground Water Oil and Surface Waters Clean-up and Response Fund to retrofit, repair or replace aboveground oil storage tanks or aboveground oil storage facilities in a wellhead protection zone when the commissioner determines that action is necessary to abate an imminent threat to the well. Disbursements must be made in the manner provided under section 569-A 551, subsection 8 5, paragraphs M and N and O and are subject to the annual disbursement limitations of those paragraphs.
Sec. 42. 38 MRSA §1398, as enacted by PL 2007, c. 569, §6, is amended to read:
§ 1398. Eligibility for clean-up funds
Clean-up costs and 3rd-party damages resulting from discharges from an aboveground oil storage facility or an underground oil storage facility installed in violation of section 1393 are not eligible for coverage by the Maine Ground Water Oil and Surface Waters Clean-up and Response Fund under sections 551 and 568-A and 569-A.
[PL 2007, c. 569, § 6 (NEW).]summary
This bill combines current provisions of law related to the Ground Water Oil Clean-up Fund and the Maine Coastal and Inland Surface Oil Clean-up Fund. It streamlines administration of oil clean-up funds and stabilizes funding for clean-up activities. It improves government administration by combining 2 boards with expertise in oil spill prevention and cleanup and responsibility for fund oversight into one, and it streamlines fee requirements from 2 separate amounts for each product type into one.