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An Act To Continue Coverage of Oil Clean-up Costs and Improve Administration of the Ground Water Oil Clean-up Fund
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §341-G, sub-§1, as amended by PL 1991, c. 817, §8, is further amended to read:
 
1. Transfer funds. The amount transferred from each fund must be proportional to that fund's contribution to the total special revenues received by the department under chapter 2, subchapter 2; sections 551,and 569-A and 569-B; and chapter 13, subchapter 4. Any funds received by the board from the General Fund must be credited towards the amount owed by the Maine Environmental Protection Fund, chapter 2, subchapter 2.
Sec. 2. 38 MRSA §562-A, sub-§1-A, as enacted by PL 1993, c. 363, §2 and affected by §21, is amended to read:
 
1-A. Aboveground oil storage facility. "Aboveground oil storage facility" also referred to as a "facility" means any aboveground oil storage tank or tanks, together with associated piping, transfer and dispensing facilities located over land or water of the State at a single location for more than 4 months per year and used or intended to be used for the storage or supply of oil. Oil terminal facilities, as defined in section 542, subsection 7 and propane facilities are not included in this definition and are not eligible for coverage by the fund.
Sec. 3.  38 MRSA §562-A, sub-§15-A  is enacted to read:
 
15-A.  Oil storage facility or facility.   "Oil storage facility" or "facility" means an aboveground oil storage facility or an underground oil storage facility.
Sec. 4.  38 MRSA §562-A, sub-§15-B  is enacted to read:
 
15-B.  Operator.   "Operator" means a person in control of, or having responsibility for, the daily operation of an oil storage facility.
Sec. 5. 38 MRSA §562-A, sub-§21, as enacted by PL 1989, c. 865, §2, is amended to read:
 
21. Underground oil storage facility. "Underground oil storage facility," also referred to as "facility," means any underground oil storage tank or tanks, as defined in subsection 22, together with associated piping and dispensing facilities located under any land at a single location and used, or intended to be used, for the storage or supply of oil, as defined in this subchapter. Underground oil storage facility also includes piping located under any land at a single location associated with above ground storage tanks and containing 10% or more of the facility's overall volume capacity.
Sec. 6. 38 MRSA §564, sub-§2-A, ¶J, as amended by PL 1991, c. 494, §5, is further amended to read:
 
J. Owners and operators, upon request by the commissioner, to sample their underground oil tanks, to maintain records of all monitoring and sampling results at the facility or the facility owner's place of business and to furnish records of all monitoring and sampling results to the commissioner and to permit the commissioner or the commissioner's representative to inspect and copy those records; and
Sec. 7. 38 MRSA §564, sub-§2-A, ¶K, as enacted by PL 1991, c. 66, Pt. B, §5, is amended to read:
 
K. Owners and operators to permit the commissioner or the commissioner's designated representatives, including contractors, access to all underground oil storage facilities for all purposes connected with administering this subchapter, including, but not limited to, for sampling the contents of underground oil tanks and monitoring wells. This right of access is to be in addition to any other granted by law.; and
Sec. 8.  38 MRSA §564, sub-§2-A, ¶L  is enacted to read:
 
L.  Operators to complete a department training program that meets the minimum requirements specified by the United States Environmental Protection Agency under 42 United States Code, Section 6991i (2007).
Sec. 9.  38 MRSA §565-B  is enacted to read:
§ 565-B. Training of oil delivery personnel
A person in the business of filling oil storage tanks shall ensure that any employee whose responsibilities include onloading or offloading oil to or from a delivery vehicle participates in a training program that includes, at a minimum:
 
1.  Prevention.   Overfill and spill prevention procedures;
 
2.  Reporting.   Spill reporting procedures;
 
3.  Containment.   Spill containment and clean-up procedures; and
 
4.  Inspection and maintenance.   Inspection and maintenance of spill prevention and containment equipment.
A written copy of the training program and a training log must be kept at the person's primary place of business and made available for inspection upon request by department staff. The log must list the name of each employee trained and the date or dates on which each participated in the training.
Sec. 10. 38 MRSA §566-A, sub-§4, as amended by PL 1999, c. 334, §2, is further amended to read:
 
4. Commissioner role. If the owner of an underground oil storage facility or tank fails to properly abandon the facility or tank within a reasonable time period, the commissioner may undertake the abandonment. The commissioner shall collect any reimbursement due the Ground Water Oil Clean-up Fund in accordance with section 569-A or 569-B. Costs incurred by the commissioner to undertake the abandonment are a lien against the real estate of the owner as provided under section 569-A, subsection 10-A and section 569-B, subsection 6-A.
Sec. 11. 38 MRSA §568, sub-§1, as amended by PL 2007, c. 655, §6, is further amended to read:
 
1. Removal. Any person discharging or suffering a discharge of oil to groundwater in the manner prohibited by section 543 and any other responsible party shall immediately undertake to remove that discharge to the commissioner's satisfaction. Notwithstanding this requirement, the commissioner may order the removal of that discharge pursuant to subsection 3 or may undertake the removal of that discharge and retain agents and contractors for that purpose, who shall operate under the direction of the commissioner. Any unexplained discharge of oil to groundwater within state jurisdiction must be removed by or under the direction of the commissioner. Any expenses involved in the removal of discharges, whether by the person causing the discharge, the person reporting the discharge, the commissioner or the commissioner's agents or contractors, may be paid in the first instance from the Ground Water Oil Clean-up Fund, including any expenses incurred by the State under subsection 3, and any reimbursements due that fund must be collected in accordance with section 569-A or 569-B.
Sec. 12. 38 MRSA §568, sub-§3, as amended by PL 2007, c. 534, §4, is further amended to read:
 
3. Issuance of clean-up orders. The commissioner may investigate and sample sites where an oil discharge has or may have occurred to identify the source and extent of the discharge. During the course of the investigation, the commissioner may require submission of information or documents that relate or may relate to the discharge under investigation from any person who the commissioner has reason to believe may be a responsible party under this subchapter or subchapter 2-A. If the commissioner finds, after investigation, that a discharge of oil has occurred and may create a threat to public health or the environment, including, but not limited to, contamination of a water supply, the commissioner may issue a clean-up order requiring the responsible party to cease the discharge immediately and to take action to prevent further discharge and to mitigate or terminate the threat of human exposure to contamination or to explosive vapors. In addition to other actions, including an action to prohibit product delivery under section 565-A, the commissioner may, as part of any clean-up order, require the responsible party to provide temporary drinking water and water treatment systems approved by the commissioner, to sample and analyze wells and, to compensate 3rd-party damages resulting from the discharge and to impose restrictions by deed covenant or other means on the use of the real property where the discharge occurred. The commissioner may also order that the responsible party take temporary and permanent remedial actions at locations threatened or affected by the discharge of oil, including a requirement that the responsible party restore or replace water supplies contaminated with oil with water supplies the commissioner finds are cost effective, technologically feasible and reliable and that effectively mitigate or minimize damage to, and provide adequate protection of, the public health, welfare and the environment. Clean-up orders may be issued only in compliance with the following procedures.
 
A. Any orders issued under this section must contain findings of fact describing the manner and extent of oil contamination, the site of the discharge and the threat to the public health or environment. Service of a copy of the commissioner's findings and order must be made by the sheriff or deputy sheriff or by hand delivery by an authorized representative of the department in accordance with the Maine Rules of Civil Procedure.
 
B. A responsible party to whom such an order is directed may apply to the board for a hearing on the order if the application is made within 10 working days after receipt of the order by a responsible party. Within 15 working days after receipt of the application, the board shall hold a hearing, make findings of fact and vote on a decision that continues, revokes or modifies the order. That decision must be in writing and signed by the board chair using any means for signature authorized in the department's rules and published within 2 working days after the hearing and vote. The nature of the hearing is an appeal. At the hearing, all witnesses must be sworn and the commissioner shall first establish the basis for the order and for naming the person to whom the order was directed. The burden of going forward then shifts to the person appealing to demonstrate, based upon a preponderance of the evidence, that the order should be modified or rescinded. The decision of the board may be appealed to the Superior Court in accordance with Title 5, chapter 375, subchapter 7.
 
C. Upon completion of the clean-up activity, the commissioner shall issue a letter to the responsible party or parties indicating that the clean-up order has been complied with for one or more parcels.
Sec. 13. 38 MRSA §568-A, sub-§1, ¶F, as enacted by PL 1995, c. 361, §4, is amended to read:
 
F. Within 15 working days of receipt of a request under paragraph A, the commissioner in the case of an underground oil storage facility or the State Fire Marshal in the case of an aboveground oil storage facility shall determine whether the request is complete. Failure to inform the applicant of the determination of completeness within 15 working days constitutes acceptance as complete. If the application is not accepted, the commissioner or State Fire Marshal shall return the application to the applicant with the reasons for nonacceptance specified in writing. Within 90 days of receipt of an applicant's completed request for coverage by the fund submitted pursuant to this subsection, the commissioner or State Fire Marshal shall issue an order determining eligibility and, if the applicant is eligible, specifying the amount of the deductible under subsection 2. Failure to issue an order within this period constitutes a determination that the applicant is eligible, subject to the deductibles in subsection 2, paragraph A.
Sec. 14.  38 MRSA §568-A, sub-§1, ¶F-1  is enacted to read:
 
F-1.  Within 90 days of receipt of an applicant's completed request for coverage by the fund submitted pursuant to this subsection, the commissioner or State Fire Marshal shall issue an order determining eligibility and, if the applicant is eligible, specifying the amount of the deductible under subsection 2. Failure to issue an order within this period constitutes a determination that the applicant is eligible, subject to the deductibles in subsection 2, paragraph A. An order issued under this paragraph may be conditioned on any reasonable terms determined necessary by the commissioner or State Fire Marshal to prevent or limit human exposure to contamination from the discharge, including a requirement that the applicant impose restrictions by deed covenant or other means on the use of the real property where the discharge occurred.
Sec. 15.  38 MRSA §568-A, sub-§1, ¶L  is enacted to read:
 
L.  Costs incurred to implement a voluntary response action plan under section 343-E are not eligible for coverage under this section.
Sec. 16.  38 MRSA §568-A, sub-§1, ¶M  is enacted to read:
 
M.  An applicant is not eligible for coverage under this section if the applicant is a motor carrier under the Motor Carrier Act, 49 United States Code, Section 31139 and the discharge for which coverage is sought occurred during the offloading or onloading of oil from or to a motor vehicle used to transport oil.
Sec. 17. 38 MRSA §568-A, sub-§7, as amended by PL 2003, c. 245, §10, is repealed.
Sec. 18. 38 MRSA §568-B, sub-§3, as enacted by PL 2003, c. 245, §11, is repealed.
Sec. 19. 38 MRSA §569-A, sub-§8, ¶B, as amended by PL 1995, c. 399, §14 and affected by §21, is further amended to read:
 
B. All costs, including personnel and equipment expenses, involved in the response to and removal of a prohibited discharge, the abatement of pollution and the implementation of remedial measures, including restoration of water supplies, related to the discharge or threatened discharge of oil to ground water, whether from an aboveground or undergroundoil storage facility,if the costs are not paid by a responsible party or an applicant for coverage by the fund;
Sec. 20. 38 MRSA §569-A, sub-§10, as enacted by PL 1991, c. 817, §26, is repealed and the following enacted in its place:
 
10.  Reimbursements to fund.   The commissioner shall seek recovery from responsible parties of all sums expended from the fund, including overdrafts, for the purposes described in subsection 8, paragraphs B, D, E, H and J or for other damage incurred by the State in connection with a prohibited discharge, including interest computed at 15% a year from the date of expenditure, unless the commissioner finds the amount involved too small or the likelihood of success too uncertain or unless the responsible party is found to be eligible for coverage of the sum under section 568-A. If payment is not received by the State within 30 days of the demand, the Attorney General may file suit in 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 subsection, neither a demand nor other recovery efforts against one responsible party may relieve any other responsible party of liability.
Sec. 21. 38 MRSA §569-A, sub-§13, as amended by PL 2003, c. 245, §13, is repealed.
Sec. 22. 38 MRSA §569-B, as amended by PL 2003, c. 245, §14, is repealed.
Sec. 23. 38 MRSA §570, first ¶, as amended by PL 2007, c. 292, §35, is further 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, subsection 8, paragraphs B, D, E, H and J, or other damage incurred by the State, except that the owner and operator of an oil storage facility that has suffered a discharge of oil are not liable for costs found by the commissioner to be eligible for coverage under the fundsection 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 except for amounts that are eligible for coverage by the fund under this subchapteras provided under section 569-A, subsection 10. 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.
Sec. 24. 38 MRSA §570, first ¶, as amended by PL 2007, c. 292, §36, is repealed.
Sec. 25. 38 MRSA §570-A, last ¶, as amended by PL 2003, c. 245, §15, is repealed.
Sec. 26. 38 MRSA §570-B, last ¶, as amended by PL 2003, c. 245, §16, is repealed.
Sec. 27. 38 MRSA §570-I, as amended by PL 2003, c. 245, §17, is repealed.
Sec. 28. 38 MRSA §570-J, as amended by PL 2003, c. 245, §18, is repealed.
Sec. 29.  38 MRSA §570-K, sub-§3-A  is enacted to read:
 
3-A.  Abandonment; closure.   An aboveground oil storage facility or tank that has been or is intended to be taken out of service for a period of more than 12 months must be abandoned in accordance with rules adopted by the board. The board, in consultation with the Department of Public Safety, Office of the State Fire Marshal, shall adopt routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A setting forth the proper procedures for abandonment, including, but not limited to, requirements and procedures for conducting a site assessment to determine if the facility or tank has suffered oil discharges, requirements for removal of discharges discovered during the site assessment and acceptable methods for emptying and disposing of tanks and piping. The rules must specify the circumstances under which a closed facility or tank may be returned to service and must be consistent with the rules governing abandonment of underground oil storage facilities and tanks, as adopted by the board pursuant to section 566-A, subsection 3.
Sec. 30. 38 MRSA §570-K, sub-§4, as amended by PL 2001, c. 605, §2, is further amended to read:
 
4. Exemption. The following aboveground oil storage facilities are exempt from the requirements of subsections 2 and, 3 and 3-A:
 
A. Facilities or portions of facilities that are used exclusively for the storage of #2 and other home heating oil and consist of an individual tank of 660 gallons or less capacity or an aggregate tank capacity of 1320 gallons or less; and
 
B. Facilities containing only liquefied petroleum gas or liquefied natural gas.
Sec. 31. PL 1991, c. 817, §30, as amended by PL 2003, c. 245, §21, is repealed.
 
SUMMARY
This bill does the following.
1. It eliminates the December 31, 2010 sunset date on the provisions of law that insure owners and operators of oil storage tanks against the costs of cleaning up tank leaks and authorize the department to pay those costs, up to $1,000,000 per incident, from the Ground Water Oil Clean-up Fund.
2. It repeals the provisions of law that are due to take effect on the sunset date of the Ground Water Oil Clean-up Fund.
3. It requires the Board of Environmental Protection to adopt rules establishing a training program for operators of underground oil storage facilities used to store motor fuel or used in the marketing and distribution of oil.
4. It requires persons in the business of delivering oil to storage tanks to conduct employee training.
5. It authorizes the use of restrictive covenants and other land use controls to minimize the risk of human exposure to residual contamination on property that has suffered an oil discharge.
6. It makes costs incurred to implement a voluntary response action plan, in which a person agrees to clean up oil contamination at that person's own expense in exchange for protection from liability, ineligible for coverage by the Ground Water Oil Clean-up Fund.
7. It requires the Commissioner of Environmental Protection to seek repayment of disbursements from the Ground Water Oil Clean-up Fund from responsible parties who are not eligible for coverage under the fund.
8. It authorizes the Department of Environmental Protection to seek recovery of personnel and equipment costs incurred by the department in responding to a discharge of oil.
9. It requires aboveground oil storage facilities that have been out of service for more than 12 months to be abandoned in accordance with rules adopted by the Board of Environmental Protection.