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An Act To Protect the Penobscot River and Penobscot Bay from Mercury Contamination
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §480-D, sub-§3, as amended by PL 2011, c. 653, §15 and affected by §33, is further amended to read:
 
3. Harm to habitats; fisheries.   The activity will not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine or marine fisheries or other aquatic life.
 
In determining whether mining, as defined in section 490-MM, subsection 11, will comply with this subsection, the department shall review an analysis of alternatives submitted by the applicant. For purposes of this subsection, a practicable alternative to mining, as defined in section 490-MM, subsection 11, that is less damaging to the environment is not considered to exist. The department may consider alternatives associated with the activity, including alternative design and operational measures, in its evaluation of whether the activity avoided and minimized impacts to the maximum extent practicable.
 
In determining whether dredging in the Penobscot River south of the former HoltraChem Manufacturing Company site in the Town of Orrington and Penobscot Bay north of the southern tip of Islesboro Island will comply with this subsection, the department shall review core sample analysis submitted by the applicant. The applicant shall take core samples using the following sampling methodology. A minimum of 10 core samples must be collected for an area proposed to be dredged. Compositing of core samples may not be permitted prior to testing. Each separate core sample must be 90 centimeters in depth or as deep as the area permits, whichever is less. All samples must be specifically tested for the presence of mercury by testing each one-centimeter segment from the surface of the core down to 20 centimeters; each 2-centimeter segment from 21 to 40 centimeters; and each 5-centimeter segment from 41 to 90 centimeters or to the actual depth of the core sample if less than 90 centimeters. The department may not approve an application for dredging in the Penobscot River or Penobscot Bay that has not used this methodology for testing and core sampling. The department may not approve an application for dredging if the dredging is not necessary for maintenance of navigation. Dredging may be permitted only if the applicant can demonstrate that dredging can and will be conducted in a manner that will not resuspend or disturb buried mercury.
 
In determining whether there is unreasonable harm to significant wildlife habitat, the department may consider proposed mitigation if that mitigation does not diminish in the vicinity of the proposed activity the overall value of significant wildlife habitat and species utilization of the habitat and if there is no specific biological or physical feature unique to the habitat that would be adversely affected by the proposed activity. For purposes of this subsection, "mitigation" means any action taken or not taken to avoid, minimize, rectify, reduce, eliminate or compensate for any actual or potential adverse impact on the significant wildlife habitat, including the following:
 
A. Avoiding an impact altogether by not taking a certain action or parts of an action;
 
B. Minimizing an impact by limiting the magnitude, duration or location of an activity or by controlling the timing of an activity;
 
C. Rectifying an impact by repairing, rehabilitating or restoring the affected environment;
 
D. Reducing or eliminating an impact over time through preservation and maintenance operations during the life of the project; or
 
E. Compensating for an impact by replacing the affected significant wildlife habitat.
Sec. 2. 38 MRSA §480-D, sub-§9, as amended by PL 2001, c. 248, §1, is further amended to read:
 
9. Dredging.   If the proposed activity involves dredging, dredge spoils disposal or transporting dredge spoils by water, the applicant must demonstrate that the transportation route minimizes adverse impacts on the fishing industry and that the disposal site is ecologically and geologically suitable. The Commissioner of Marine Resources shall provide the department with an assessment of the impacts on the fishing industry of a proposed dredging operation in the coastal wetlands. The assessment must consider impacts to the area to be dredged and impacts to the fishing industry of a proposed route to transport dredge spoils to an ocean disposal site, as well as impacts to the fishing industry caused by dredging or disposal of dredge spoils, whether or not the dredge spoils contain contaminants or toxic substances. The Commissioner of Marine Resources may hold a public hearing on the proposed dredging operation. In determining if a hearing is to be held, the Commissioner of Marine Resources shall consider the potential impacts of the proposed dredging operation on fishing in the area to be dredged. If a hearing is held, it must be within at least one of the municipalities in which the dredging operation would take place. If the Commissioner of Marine Resources determines that a hearing is not to be held, the Commissioner of Marine Resources must publish a notice of that determination in a newspaper of general circulation in the area proposed for the dredging operation. The notice must state that the Commissioner of Marine Resources will accept verbal and written comments in lieu of a public hearing. The notice must also state that if 5 or more persons request a public hearing within 30 days of the notice publication, the Commissioner of Marine Resources will hold a hearing. If 5 or more persons request a public hearing within 30 days of the notice publication, the Commissioner of Marine Resources must hold a hearing. In making its determination under this subsection, the department must take into consideration the assessment provided by the Commissioner of Marine Resources. The permit must require the applicant to:
 
A. Clearly mark or designate the dredging area, the spoils disposal route and the transportation route;
 
B. Publish in a newspaper of general circulation in the area adjacent to the route the approved transportation route of the dredge spoils; and
 
C. Publish in a newspaper of general circulation in the area adjacent to the route a procedure that the applicant will use to respond to inquiries regarding the loss of fishing gear during the dredging operation.;
 
D.  Provide written notice to all associations known to represent commercial fishermen in the State or in the specific geographic area in which dredging or dredge spoils disposal is to occur; and
 
E.  Provide written notice to all municipalities in which dredging, dredge spoils disposal or transporting dredge spoils by water is to occur.
Sec. 3.  38 MRSA §480-D, sub-§9-A  is enacted to read:
 
9-A.  Dredging and dredge spoils disposal in Penobscot River and Penobscot Bay, north of the southern tip of Islesboro Island.     Dredging may be permitted in the Penobscot River south of the former HoltraChem Manufacturing Company site in the Town of Orrington or Penobscot Bay north of the southern tip of Islesboro Island only if it is demonstrated to be necessary to maintain navigation. However, if core sampling demonstrates the presence of buried mercury, dredging may not be permitted if it cannot be performed without disturbing or resuspending buried mercury in the aquatic environment. All dredge spoils from dredging conducted under this subsection must be safely disposed of on land, at a site suitable for the level of contamination found during core sampling under subsection 3. Dredge spoils may not be disposed of in the aquatic environment of the Penobscot River or Penobscot Bay.
 
SUMMARY
This bill requires dredging in the Penobscot River south of the former HoltraChem Manufacturing Company site in the Town of Orrington and in Penobscot Bay north of the southern tip of Islesboro Island to comply with certain sampling requirements prior to being permitted under the Natural Resources Protection Act.