APPROVED CHAPTER
FEBRUARY 29, 2024 512
BY GOVERNOR PUBLIC LAW
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-FOUR
_____
S.P. 362 - L.D. 865
An Act to Clarify the Roles and Responsibilities of the Board of
Environmental Protection
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §341-D, sub-§2, as amended by PL 2011, c. 304, Pt. H, §6, is
further amended to read:
2. Permit and license applications. Except as otherwise provided in this subsection,
the board shall decide assume jurisdiction of each application for approval of the following
categories of permits and licenses that in its judgment represents a project of statewide
significance. A project of statewide significance is a project that meets at least 3 of the
following 4 criteria:
E. Will have an environmental or economic impact in more than one municipality,
territory or county;
F. Involves an activity not previously permitted or licensed in the State;
G. Is likely to come under significant public scrutiny; and
H. Is located in more than one municipality, territory or county.
I. A new mining permit required pursuant to section 490-OO;
J. A license for a new solid waste disposal facility required pursuant to section 1310-N;
K. A permit for a new high-impact electric transmission line, as defined in Title 35-A,
section 3131, subsection 4-A, required pursuant to chapter 3, subchapter 1, article 6;
L. A license for a new wastewater discharge required pursuant to section 413 that, as
determined by the department, is expected to use more than 20% of the assimilative
capacity of the receiving water;
M. A permit for a new offshore wind terminal required pursuant to chapter 3,
subchapter 1, article 6; and
N. A permit for a new nuclear power plant, as defined in Title 35-A, section 4352,
subsection 9, required pursuant to chapter 3, subchapter 1, article 6.
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The board shall also decide assume jurisdiction of each application for approval of permits
and licenses that is referred to it jointly by the commissioner and the applicant.
The board shall assume jurisdiction over applications referred to it under section 344,
subsection 2‑A when it finds that at least 3 of the 4 criteria of this subsection have been
met.
The board may vote to assume jurisdiction of an application if it finds that at least 3 of the
4 criteria of this subsection have been met.
The board may not assume jurisdiction over an application for an expedited wind energy
development as defined in Title 35‑A, section 3451, subsection 4, for a certification
pursuant to Title 35‑A, section 3456 or for a general permit pursuant to section 480‑HH or
section 636‑A.
Prior to holding a hearing on an application over which the board has assumed jurisdiction,
the board shall ensure that the department and any outside agency review staff assisting the
department in its review of the application have submitted to the applicant and the board
their review comments on the application and any additional information requests
pertaining to the application and that the applicant has had an opportunity to respond to
those comments and requests. If additional information needs arise during the hearing, the
board shall afford the applicant a reasonable opportunity to respond to those information
requests prior to the close of the hearing record.
Sec. 2. 38 MRSA §341-D, sub-§4, ¶A, as amended by PL 2023, c. 139, §2, is
further amended to read:
A. Final license or permit decisions made by the commissioner when a person
aggrieved by a decision of the commissioner appeals that decision to the board within
30 days of the filing date of the decision with the board staff. The board staff shall
give written notice to persons that have asked to be notified of the decision. An
appellant shall identify in the appeal the licensing or permitting criterion or standard
the appellant believes was not satisfied in the commissioner's final license or permit
decision. Any proposed supplemental evidence offered by an appellant must be
included with the filing of the appeal. The board staff shall issue to the licensee or
permittee, if the licensee or permittee is not the appellant, and to any persons who have
requested to be notified of the license or permit decision written notice of the filing of
the appeal and identify any proposed supplemental evidence offered by the appellant.
Within 30 days of the issuance of the written notice of the filing of the appeal by the
board staff, the licensee or permittee, if the licensee or permittee is not the appellant,
and any interested parties identified by the commissioner pursuant to section 344,
subsection 4-A, paragraph B may submit supplemental evidence to the board and the
appellant addressing the issues raised in the appeal. The board may allow the record
to be supplemented when it finds that the evidence offered is relevant and material and
that:
(1) An interested party seeking to supplement the record has shown due diligence
in bringing the evidence to the licensing process at the earliest possible time; or
(2) The evidence is newly discovered and could not, by the exercise of diligence,
have been discovered in time to be presented earlier in the licensing process.
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 The board may admit into the record supplemental evidence offered by a respondent
in response to proposed supplemental evidence offered by an appellant and the issues
raised on appeal. The board may shall admit into the record additional evidence and
analysis submitted by department staff in response to issues raised on in the appeal or
and any supplemental evidence offered by an appellant, respondent or interested party
allowed by the board in accordance with this paragraph. The board is not bound by the
commissioner's findings of fact or conclusions of law but may adopt, modify or reverse
findings of fact or conclusions of law established by the commissioner. Any changes
to a final license or permit decision of the commissioner made by the board under this
paragraph must be based upon the board's review of the record, any supplemental
evidence admitted by the board and any other evidence obtained by the board through
any hearing on the appeal held by the board;.
If the board modifies or reverses a final license or permit decision of the commissioner
pursuant to this paragraph, the licensee or permittee shall implement any changes to
the project necessary to comply with the decision of the board, which may include, but
are not limited to, deconstruction and site restoration, and the department may initiate
enforcement actions pursuant to section 347-A and impose penalties pursuant to
section 349 if the licensee or permittee fails to satisfactorily implement those changes;
Sec. 3. 38 MRSA §344, sub-§2-A, ¶A, as amended by PL 2011, c. 304, Pt. H, §18,
is further amended to read:
A. Except as otherwise provided in this paragraph, the commissioner shall decide as
expeditiously as possible if an application meets 3 of the 4 criteria the requirements set
forth in section 341‑D, subsection 2 for the assumption of jurisdiction by the board and
shall request that notify the board assume jurisdiction of that if the application meets
the requirements. If an interested person requests that the commissioner refer an
application to the board and the commissioner determines that the criteria are not met,
the commissioner shall notify the board of that request. If at any subsequent time
during the review of an application the commissioner decides that the application falls
under meets the requirements set forth in section 341‑D, subsection 2 for the
assumption of jurisdiction by the board, the commissioner shall request that notify the
board assume jurisdiction of that the application meets the requirements.
(1) The commissioner may not request the board to assume jurisdiction of an
application for any permit or other approval required for an expedited wind energy
development, as defined in Title 35‑A, section 3451, subsection 4, a certification
pursuant to Title 35‑A, section 3456 or a general permit pursuant to section
480‑HH or section 636‑A. Except as provided in subparagraph (2), the
commissioner shall issue a decision on an application for an expedited wind energy
development, an offshore wind power project or a hydropower project, as defined
in section 632, subsection 3, that uses tidal action as a source of electrical or
mechanical power within 185 days of the date on which the department accepts the
application as complete pursuant to this section or within 270 days of the
department's acceptance of the application if the commissioner holds a hearing on
the application pursuant to section 345‑A, subsection 1‑A.
(2) The expedited review periods of 185 days and 270 days specified in
subparagraph (1) do not apply to the associated facilities, as defined in Title 35‑A,
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 section 3451, subsection 1, of the development if the commissioner determines that
an expedited review time is unreasonable due to the size, location, potential
impacts, multiple agency jurisdiction or complexity of that portion of the
development. If an expedited review period does not apply, a review period
specified pursuant to section 344‑B applies.
The commissioner may stop the processing time with the consent of the applicant for
a period of time agreeable to the commissioner and the applicant.
Sec. 4. 38 MRSA §489-A, sub-§9, ¶A, as amended by PL 1993, c. 383, §27 and
affected by §42, is further amended by amending subparagraph (1) to read:
(1) Meets one or more of the criteria requirements set forth in section 341‑D,
subsection 2, paragraph A, B or C for the assumption of jurisdiction by the board;
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Statutes affected:
Bill Text LD 865, SP 362: 5.8063, 38.341
Bill Text ACTPUB , Chapter 512: 38.341, 38.344, 38.489