Governor Paul LePage's Regulatory Reform Proposals

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Governor Paul LePage has presented a stunning list of regulatory reforms in the environmental and natural resource areas. Here is his proposal.

Administrative Procedures Act

Require all agencies to prepare and publish a Jobs Impact Analysis for every new ruleproposed and publish it at the time it is posted for rulemaking.

Require all agencies to provide a comprehensive fiscal impact report with each new ruleproposed and publish it at the time it is posted for rulemaking. This is currently looselyrequired under the Administrative Procedures Act, but not completed in practice.

Reduce the standard of deference to administrative agencies that is currently used in thecourt system on appeals and require a preponderance of evidence standard be applied bythe court on appeal.

Require landowner permission prior to gathering data that will be used in public venuesfor zoning and regulatory purposes. Specific examples including the mapping of deer yards and other wildlife habitat.

Municipalities

Prevent municipalities from creating retroactive ordinances.

Regulatory Ombudsman

Create a Small Business Ombudsman in the Department of Economic and CommunityDevelopment to help businesses navigate regulatory processes.

Department of Environmental Protection

Replace the Board of Environmental Protection with a full-time professionaladministrative law judge system that will hear appeals of major permits and DEPadministrative enforcement actions.

Designate DEP as the entity to promulgate all environmental rules (through typical noticeand comment rulemaking procedures) and issue all environmental permits (following apublic hearing for major applications).

Internalize to DEP functions that are currently managed by various disparate stateagencies (
e.g., aboveground storage tanks at State Fire Marshal, drinking water systemsat DHHS, Site Law permit significant wildlife habitat analysis at DIF&W.)

Require inclusion of a regulatory impact analysis (i.e., cost-benefit analysis) in allenvironmental rulemakings.

Adopt a standard for rulemaking requiring rules to be predicated on valid science andclarity of language.

Conform Maine statutory and regulatory standards to federally required standards.

Establish a General Permit for small air emission sources. EPA doesn’t require air licenses for small emissions sources, but Maine DEP does. A simpler, General Permitprocess would be more appropriate for small sources and free up additional Air Bureauresources for larger projects.

When rulemaking regarding EPA’s 1-hour sulfur dioxide standard begins, DEP shouldnot exceed the requirements of the federal standard.

Change DEP rules to require Best Available Control Technology (BACT) only for major sources and major modifications. Currently, BACT is only required for these major projects at the federal level, but the Maine DEP requires BACT for minor sources andminor modifications without being required to by federal law.

Repeal of Resolve 2010, Chapter 206 which has caused DEP to include stringentgreenhouse gas requirements in its standards for Site Law assessment.

Reconsider and revise statutorily allowable sulfur levels, considering elimination. Thefederal EPA requires each state to show reasonable progress toward natural visibilityconditions near national parks by 2064. With this as a reason, DEP encouraged thisstatutory lowering of allowable sulfur in residual fuel oil from 2% to 0.5% beginning in2018, which is anticipated to substantially increase cost.

Align the DEPs process for regulating air emissions of the startup, shutdown andunavoidable malfunctions procedures for industrial facilities with the federally requiredprocess. This allows excess emissions as a result of these events to be exempted frompenalty, which DEP now only sometimes does.

Review all consumer products recycling and “take-back” statutes and revise as necessaryto develop a policy that ensures that manufacturers do not have to pay to recycle their consumer products and that these standards do not exceed those set in federal law.

Review all regulation of consumer products and consider revisions to prohibitions of chemicals and materials in products. If the state is going to regulate consumer productsat all, it should only do so when clearly justified on risk-benefit or cost benefit basis.

Repeal the “new crossing” statute created by the 124thLegislature regarding culverts.

Repeal BPA rule and rely on federal EPA and FDA standards.

Repeal DEP regulations requiring that medical sharps be shredded prior to disposal.

Adopt a statute of limitations for filing suit for environmental violations based on thefederal statute of limitations of 6 years.

Eliminate “per day” penalty minimums of $100 to allow discretion in setting penalties for long-term or long-passed violations and prohibit penalty assessment when delay has beencaused by the state.

Define currently ambiguous terms in the Uncontrolled Hazardous Substances Sites Law(“UHSSL”). Adopt a statutory cause of action for contribution to the UHSSL. AdoptUHSSL regulations and guidance consistent with existing Federal standards.

Adopt an environmental audit law or policy, identical to the version used by the federalEPA. This forgives gravity-based penalties for discovery of non-compliance during acompliance assessment or part of an environmental management program when theproblem is promptly disclosed and corrected.

Require Notices of Violation (“NOV”) to be issued by DEP within 30 days of anobserved violation.

Establish a statute of limitations on DEP sign-off on spill clean up.

Align the details of state’s requirements for reporting of estimated hazardous waste withthe less expansive federal standards. Specifically, with regard to de minimis exemptions- list of compounds- reporting thresholds.

Allow businesses to inspect their hazardous waste weekly rather than daily. The federalEPA currently requires a weekly inspection, but the Maine DEP requires daily.

Align state universal waste rules with federal universal waste rules. Currently, DEP hasmore stringent and costly regulations than those that are required at the federal level for universal waste (which includes fluorescent lamps and certain batteries).

Create exemptions in DEP rules that recognize that many valuable materials are nothazardous wastes or solid wastes and managed and transferred as commercial materials

Amend the Natural Resource Protection Act to clarify that the setback for shorebirdfeeding and roosting area and waterfowl wading habitat is 75 feet, consistent with thesetback for rivers, streams, brooks & wetlands.

Reduce setback requirements related to vernal pools.

Exempt modification to existing residential or commercial structures in coastal sand dunesystems from any State permitting requirement where the modification does not extendbeyond the existing impervious area and does not increase the building’s total height.

Create a DEP waiver for construction in sand dunes required for ADA purposes.

Change DEP rules to allow vertical building additions in the frontal sand dunesregardless of whether or not the entire building is on posts. Currently, for any of theseadditions, it is required to be on posts, regardless of the scale or importance of theproject.

Review the Site Location of Development Act (“SLODA”) and the Natural ResourcesProtection Act (“NRPA”) and implementing regulations to modify applicabilitythresholds and to set objective standards for review of applications.

Repeal the Informed Growth Act.

Create a process for minor added projects or revisions to large projects that have alreadybeen approved under Site Law to reduce administrative burden of these smaller initiatives.

Review the Site Location of Development Act (“SLODA”) and the Natural ResourcesProtection Act (“NRPA”) and implementing regulations to modify applicabilitythresholds and to set objective standards for review of applications. Specifically:- Require a decision within 30-days of receipt.- Eliminate 3rd Party Inspectors- Eliminate DEP review if there is adequate review at the municipal level- Require DEP neutrality on the merits of a project.- Reduce Site Law filing fees.- Extended the manufacturing exemption in 38 MRSA §488 (7) to other types of facilities.- Align standards with the Natural Resources Protection Act.- Create a minor projects permitting process for minor added projects or revisionsto large projects that have already been approved under Site Law to reduceadministrative burden of these smaller initiatives.

Increase the minimum size requirement and minimum subdivided lots requirement of adevelopment or facility to trigger this regulation. Reduce the length of impact of DEPcompliance orders under this statute to 15 years. Reject DEP’s proposed new rules
regarding “scenic impacts”, which are already regulated by the Natural ResourcesProtection Act.

Reject DEP’s proposed new standards regarding “community character”, as thesestandards are accounted for in the work of local boards in the host municipality.

Reject DEP’s proposed rule re: culverts.

Review and improve the process by which DEP regulates municipal snow dumps andeliminate fees for this filing process.

Revise DEP Rules Chapter 418 (Beneficial Reuse) to eliminate significant hurdles tobeneficial reuse of materials that would otherwise be classified as a waste by DEP.

Modify DEP Chapter 405 Solid waste rules that require continued monitoring wherethere is any statistically significant increase in groundwater constituents irrespective of itsimpact (e.g., groundwater still meets drinking water standards).

Direct the DEP to review its Solid Waste regulations relative to those in other states andrecommend regulatory changes to make them less comparatively stringent, payingspecific attention to:- beneficial reuse of materials for fuel- odor standards

Clarify stormwater requirements by adding clear and understandable definitions andguidance.

Streamline stormwater requirements regarding use of proprietary systems.

Direct DEP to concur with EPA on the general stormwater permit that is currently under development by the EPA for the 6 New England states and not to exceed EPA standards

Incorporate Aboveground Storage Tank regulations with UST regulations for uniformregulation under the DEP. Currently these duties are split between the Fire Marshal’sOffice and the DEP.

Streamline Chapter 691 Underground Storage Tank Regulations.

Direct, by legislative resolve, the DEP to develop a single set of rules regulating thestorage of petroleum products in gravel pits and quarries subject to state regulation.

Remove the requirement that a water quality reserve of 15% be kept for new or changeddischarges. In the past 20 years, there have been very few new dischargers in Maine.5
Land Use Regulation Commission

Require that not less than 30% of the LURC jurisdiction be zoned for development.
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Remove the “demonstrated need” requirement from LURC statutes.

Require that LURC eliminate the adjacency criterion from its rules and Comprehensive Land Use Plan.

Direct LURC to re-write the Comprehensive Land Use Plan to be consistent with the statute.

Amend the LURC statutes to remove the prohibition on approving projects unless“adequate provision has been made for fitting the proposal harmoniously into the existingnatural environment in order to ensure there will be no undue adverse effect on existinguses, scenic character, and natural and historic resources…”.

Other Natural Resources Agencies

Change the reporting structure of the Board of Pesticide Control staff to have them reportto the Department of Agriculture staff, eliminate their director and assign thoseresponsibilities to an Agriculture staffer and remove the chain of reporting that goesthrough the board.

Require IF&W to provide comprehensive evidence of wildlife habitat before delayingprojects for it.

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