Land Use & Environmental Law Update
September 27, 2011
The following are brief summaries of laws recently enacted by the Maine Legislature. The effective date of these laws is September 28, 2011, unless otherwise noted.
An Act To Ensure Regulatory Fairness and Reform
PL 2011, Chapter 304
Regulatory incentives (including reduced penalties) are available to businesses that voluntarily implement an environmental audit compliance program or an environmental compliance program, and voluntarily report violations to the MDEP.
State agencies may conduct a cost-benefit analysis on any proposed rule to determine the impact on specific affected groups or the state as a whole.
A new Business Ombudsman is established in the Department of Economic and Community Development to assist businesses with state permitting requirements, and resolving problems with state agencies.
A new Special Advocate is established in the Office of the Secretary of State to advocate for small businesses. The Special Advocate may generally comment on legislation and proposed rules that will impact small businesses. The Special Advocate also works to resolve complaints from small businesses about law enforcement by state agencies.
For every proposed rule, a state agency must provide up to 3 primary source of information on which the agency relied to develop the rule.
DEP must issue a rule that provides that isopropyl alcohol and wood ash are not hazardous waste or solid waste if being used, reused or recycled as effective substitutes for commercial products.
DEP must issue a rule to encourage the beneficial re-use of hazardous and solid wastes, which will be reviewed the Legislature.
State Agency “guidelines” must be issued through rulemaking procedure in order to be enforceable.
The structure and functions of the Board of Environmental Protection has been changed:
- Board is reduced to 7 members, 3 of whom must have a scientific or technical background in environmental issues, and no more than 4 may reside in the same Congressional District;
- Rule-making authority has been limited to the adoption of major substantive rules or amendments to existing major substantive rules, in most instances;
- Responsibility for licenses, permits and consent agreements has been given the Commissioner more authority.
Emergency legislation in effect on June 13, 2011.
An Act To Provide Certainty to Businesses and Development
PL 2011, Chapter 63
A municipality may not enact retroactive ordinances to nullify a municipal land use permit when more than 45 days has passed from the permit’s final approval.
An Act To Create a 6-Year Statute of Limitations for Environmental Violations
PL 2011, Chapter 350
Environmental enforcement actions must be initiated within 6-years of when the Maine DEP or Attorney General discovers a violation, identifies the person responsible for a violation, or from the last day of an ongoing violation, whichever last occurs.
An Act To Amend the Informed Growth Act
PL 2011, Chapter 89
Participation in the Informed Growth Act is now voluntary. If a municipality chooses to adopt an ordinance to implement the Informed Growth Act, it may establish its own fees for development applications under the Informed Growth Act, and may require a comprehensive economic impact study.
An Act to Exclude Cupolas from the Measurement of Height for Structure in the Shoreland Zone
PL 2011, Chapter 231
Municipalities may, at their own election, exempt the height of cupolas, domes, widow’s walks, or other similar from the overall applicable height restriction of a structure, as long as: (1) the structure is a legally conforming; (2) the cupola, dome, widow’s walk, or other similar feature is not extended beyond the exterior walls; (3) the floor area is 53 square feet or less; and (4) it does not increase the height of the existing structure by more than 7 feet.
An Act To Extend the Use of Underground Storage Tanks
PL 2011, Chapter 276
Double-walled underground oil storage tanks may remain in place for up to 10 years after the manufacturer’s warrant has expired, provided that precision tests are performed to determine the tank’s integrity. Out-of-service tanks may be returned to service provided that they have not been “out-of-service” for more than 2 years (extending the “return-to-service” opportunity by one full year).
PL 2011, Chapter 46
Activities Permitted under the Natural Resources Protection Act, the Site Location of Development Act, and Stormwater Management Law must be commenced within 4 years from issuance, and the activity must be completed within 7 years from issuance of the permit.
An Act To Amend the Laws Governing Significant Wildlife Habitat
PL 2011, Chapter 362
A land owner who causes an impact to a significant vernal pool area is now exempt from the permitting requirements under the Natural Resources Protection Act where the significant vernal pool is not on property owned or controlled by that land owner.
When a vernal pool is bisected by a property line, only the portion of a vernal pool located on a land owner’s property may be considered for the purposes of determining whether a vernal pool is “significant” under the NRPA, so long as that landowner is not permitted to enter the abutting property that contains the remaining part of that vernal pool.
Artificial vernal pools are now exempt from regulation under the NRPA, provided that the artificial vernal pool was not created as part of a compensation project for a permit issued under the NRPA.
An Act To Amend the Laws Governing the Enforcement of Statewide Uniform Building Codes
PL 2011, Chapter 365
The Maine Uniform Building and Energy Code (“MUBEC”) now includes standards for residential wall insulation under the 2006 edition of the International Energy Conservation Code published by the International Code Council.
MUBEC no longer apply to: (1) log homes or manufactured housing; (2) post and beam or timber frame construction; or (3) warehouses or silos used to store harvested crops.
An Act To Provide Options to Municipalities Concerning the Maine Uniform Building and Energy Code
PL 2011, Chapter 408
The threshold for municipalities that must adopt the MUBEC is increased to 4,000 residents. A municipality that has less than 4,000 residents may choose not to adopt a building or energy code; however, if such a municipality does adopt a building or energy code, it must adopt the MUBEC.
An Act To Restore Exemptions in the Natural Resources Protection Act
PL 2011, Chapter 205
A permit under the Natural Resources Protection Act is not required for the repair and maintenance or the replacement of any water crossing in any protected natural resource area provided that: (1) appropriate erosion control measures are in place; (2) the crossing does not block fish passage; and (3) for replacement crossings of a river, stream or brook, such crossing is constructed to match the natural stream grade and is embedded into the stream at least 1 foot or at least 25% of the culvert’s diameter up to 2 feet.
An Act To Require Certification of Private Applicators of General Use Pesticides
PL 2011, Chapter 169
A private applicator must be certified for general use pesticides in connection with any plants or plant products intended for human consumption as food. A person who is not certified may be supervised by a certified applicator. This requirement does not apply if the person applying the pesticides or the employer derives less than $1,000 in annual income from the sale of such food.
An Act To Amend the Natural Resources Protection Act Regarding Coastal Sand Dune Systems
PL 2011, Chapter 64
Decks and patios are not “impervious area” under the Natural Resources Protection Act with respect to coastal sand dune systems. Minor building expansions are allowed without a permit as long as (1) the footprint of the expansion is contained within an existing impervious area, (2) the expansion is no further seaward than the existing building, (3) the height of the expansion is within the height restriction of any applicable law or ordinance, and (4) the expansion conforms to the standards for expansion of a building in any applicable shoreland zoning ordinance.
An Act To Amend the Laws Administered by the Department of Environmental Protection
PL 2011, Chapter 206
Fiduciaries and lenders are exempt from liability for hazardous waste discharge if they cause or exacerbate a discharge while following a VRAP plan.
The State or any political subdivision (such as municipalities) is exempt from liability when they own or control an oil storage facility through the tax lien foreclosure process.
For more information, contact Bill Ferdinand in our Brunswick office.
This alert is provided as general information, and is not a substitute for legal or other professional advice.
