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An Act To Implement Recommendations Resulting from a State Government Evaluation Act Review of the Department of Environmental Protection by the Joint Standing Committee on Environment and Natural Resources
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §349, sub-§2-A, as enacted by PL 1997, c. 570, §1, is amended to read:
 
2-A. Supplemental environmental projects.   In settling a civil enforcement action for any violation of any of the provisions of the laws administered by the department, including, without limitation, a violation of the terms or conditions of any order, rule, license, permit, approval or decision of the board or commissioner, the parties may agree to a supplemental environmental project that mitigates not more than 80%up to 100% of the assessed penalty. "Supplemental environmental project" means an environmentally beneficial project primarily benefiting public health or the environment that a violator is not otherwise required or likely to perform.
 
A. An eligible supplemental environmental project is limited to the following categories:
 
(1) Pollution prevention projects that eliminate all or a significant portion of pollutants at the point of generation;
 
(2) Pollution reduction projects that significantly decrease the release of pollutants into a waste stream at the point of discharge to a point significantly beyond levels required for compliance;
 
(3) Environmental enhancement projects in the same ecosystem or geographic area of the violation that significantly improve an area beyond what is required to remediate any damage caused by the violation that is the subject of the enforcement action;
 
(4) Environmental awareness projects substantially related to the violation that provide training, publications or technical support to members of the public regulated by the department;
 
(5) Scientific research and data collection projects that advance the scientific basis on which regulatory decisions are made;
 
(6) Emergency planning and preparedness projects that assist state or local emergency response and planning entities in preparing or responding to emergencies; and
 
(7) Public health projects that provide a direct and measurable benefit to public health.
 
B. Supplemental environmental projects may not be used for the following situations:
 
(1) Repeat violations of the same or a substantially similar law administered by the department by the same person;
 
(2) When a project is required by law;
 
(3) If the violator had previously planned and budgeted for the project;
 
(4) To offset any calculable economic benefit of noncompliance;
 
(5) If the violation is the result of reckless or intentional conduct; or
 
(6) If the project primarily benefits the violator.
 
Any settlement that includes a supplemental environmental project must provide that expenditures are not tax deductible and are ineligible for certification as tax exempt pollution control facilities pursuant to Title 36, chapters 105 and 211.
Sec. 2. 38 MRSA §589, sub-§3, as amended by PL 1993, c. 464, §1, is further amended to read:
 
3. Emission monitoring devices.   Except as provided in this subsection, failure by a person to register, install, maintain and use emission monitoring devices or to file reports from those devices renders that person liable to the penalties prescribed in section 349. Emission monitoring devices must record accurate and reliable data during all source-operating time except for periods when emission monitoring devices are subject to established quality assurance and quality control procedures or to unavoidable malfunction. In any enforcement action brought by the department, the burden of proof is on the licensee to demonstrate that the failure of emission monitoring devices to record accurate and reliable data was due to an unavoidable malfunction or the performance of established quality assurance and quality control procedures on the monitoring system.
 
A. The department may not initiate enforcement action pursuant to section 349 against any person for failure to operate a continuous emission monitoring system for gaseous emissions as long as the system is recording accurate and reliable data at least 90%95% of the source-operating time in each quarter of the calendar year and the person can demonstrate to the satisfaction of the department that the failure of the system to record accurate and reliable data during any period of time was due to the performance of established quality assurance and quality control procedures or unavoidable malfunctions. If the continuous emission monitoring system for gaseous emissions is recording accurate and reliable data less than 90%95% of source-operating time within any quarter of the calendar year, the department may initiate enforcement action and may include in that enforcement action any period of time that the continuous emission monitoring system was not recording accurate and reliable data during that quarter unless the licensee can demonstrate to the satisfaction of the department that the failure of the system to record accurate and reliable data was due to the performance of established quality assurance and quality control procedures or unavoidable malfunctions.
 
B. The department may not initiate enforcement action pursuant to section 349 against any person for failure to operate a continuous opacity monitoring system as long as the system is recording accurate and reliable data at least 95% of the source-operating time in each quarter of the calendar year, excluding time periods when the licensee is performing quality assurance and quality control procedures on the system that are required by the department, and the person can demonstrate to the satisfaction of the department that the failure of the system to record accurate and reliable data during any period of time was due to the performance of established quality assurance and quality control procedures or unavoidable malfunctions. If the continuous opacity monitoring system is recording accurate and reliable data less than 95% of the source-operating time within any quarter of the calendar year, the department may initiate enforcement action and may include in that enforcement action any period of time that the continuous opacity monitoring system was not recording accurate and reliable data during that quarter unless the licensee can demonstrate to the satisfaction of the department that the failure of the system to record accurate and reliable data was due to the performance of established quality assurance and quality control procedures or unavoidable malfunctions.
Sec. 3. 38 MRSA §2124-A, first ¶, as amended by PL 2011, c. 655, Pt. GG, §31 and affected by §70, is further amended to read:
By January 1, 20132020 and annuallybiennially thereafter, the department shall submit a report to the joint standing committee of the Legislature having jurisdiction over environmental and natural resources matters and the Governor setting forth information on statewide generation of solid waste, statewide recycling rates and available disposal capacity for solid waste.
 
SUMMARY
This bill, which is reported out by the Joint Standing Committee on Environment and Natural Resources pursuant to the Maine Revised Statutes, Title 3, section 955, subsection 4, implements the recommendations resulting from the committee's State Government Evaluation Act review of the Department of Environmental Protection as follows:
1. It removes a statutory provision prohibiting a repeat violator of the same environmental law from taking advantage of a supplemental environmental project to mitigate an assessed civil penalty;
2. It allows a violator of an environmental law to offset up to 100% of an assessed civil penalty by conducting a supplemental environmental project. Under current law, such a violator may offset no more than 80% of an assessed civil penalty by conducting a supplemental environmental project;
3. It clarifies 2 statutory exemptions from the requirement that air contamination sources maintain continuous emission monitoring systems to mitigate a conflict between the current statutory provisions on continuous emission monitoring and existing applicable federal regulations; and
4. It provides that the solid waste generation and disposal capacity report the department currently must submit annually to the joint standing committee of the Legislature having jurisdiction over environmental and natural resources matters must be submitted only biennially.