APPROVED CHAPTER
FEBRUARY 29, 2024 510
BY GOVERNOR PUBLIC LAW
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-FOUR
_____
H.P. 1328 - L.D. 2066
An Act to Clarify Liability Under the Uncontrolled Hazardous Substance
Site Law and to Waive a Fee Regarding Voluntary Response Action Plans
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 38 MRSA §342, sub-§15, as amended by PL 2017, c. 92, §1 and affected
by §2, is further amended by amending the 2nd blocked paragraph to read:
The fee for department assistance in submitting a voluntary response action plan under
section 343‑E is equal to 1% of the assessed value of the property at the time the request is
submitted, except that the fee may not exceed $15,000. The fee is waived for a voluntary
response action plan submitted for a property transaction or use funded in accordance with
Title 7, section 320-K, subsection 4, paragraph D.
Sec. 2. 38 MRSA §1367, as corrected by RR 2021, c. 2, Pt. B, §287, is amended to
read:
§1367. Liability; recovery by the State for abatement, clean up clean-up or mitigation
costs and for damages
Each responsible party is jointly and severally liable for all costs incurred by the State
resulting from hazardous substances at the site or from the acts or omissions of a
responsible party with respect to those hazardous substances and each responsible party is
jointly and severally liable for all costs incurred by the State for the abatement, cleanup or
mitigation of the threats or hazards posed or potentially posed by an uncontrolled site,
including, without limitation, all of the State's costs of acquiring property. Each
responsible party also is jointly and severally liable for damages for injury to, destruction
of, loss of or loss of use of natural resources of the State, the reasonable costs of assessing
natural resources damages and the costs of preparing and implementing a natural resources
restoration plan. The commissioner shall demand reimbursement of costs, including
interest, and payment of damages to be recovered under this section. The interest rate
charged may not exceed the prime rate of interest plus 4%. Interest must be computed
beginning 60 days from the date of a payment demand by the commissioner. Payment must
be made promptly by the responsible party or parties upon whom the demand is made.
Requests for reimbursement to the Uncontrolled Sites Fund, if not paid within 30 days of
demand, may be turned over to the Attorney General for collection or may be submitted to
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a collection agency or agent or an attorney retained by the department with the approval of
the Attorney General pursuant to Title 5, section 191. The Attorney General or an attorney
retained by the department may file suit in the Superior Court and, in addition to relief
provided by other law, may seek punitive damages. 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.
In any suit filed under this section, the State need not prove negligence in any form or
matter by a defendant. The State need only prove that a defendant is a responsible party,
as defined in section 1362, and the site poses or posed or potentially poses or posed a threat
or hazard to the health, safety or welfare of any citizen of the State or the environment of
the State, to which the acts or omissions of the defendant are or were causally related.
A person who would otherwise be a responsible party is not subject to liability cost
recovery by the State for the State's abatement, clean-up or mitigation costs or for damages
under this section, if the person can establish by a preponderance of the evidence that
threats or hazards posed or potentially posed by an uncontrolled site, for which threats or
hazards the person would otherwise be responsible, were caused solely by:
1. Act of God. An act of God;
2. Act of war. An act of war;
3. Act or omission. An act or omission of a 3rd party who is not that person's
employee or agent. A person seeking relief from liability for the acts or omissions of a 3rd
party shall also demonstrate by a preponderance of the evidence that that person exercised
due care with respect to the hazardous substance and uncontrolled site concerned, taking
into consideration the characteristics of that substance and site, in light of all relevant facts
and circumstances and that that person took precautions against foreseeable acts or
omissions of any such 3rd party and the consequences that could foreseeably result from
such acts or omissions.
A. For purposes of this subsection, a person may demonstrate the exercise of due care
with respect to any uncontrolled site that that person has acquired after hazardous
substances were located on that uncontrolled site, if that person shows that at the time
that person acquired the uncontrolled site the person did not know and had no reason
to know that any hazardous substance that is the subject of the release or threatened
release was disposed on, in or at the uncontrolled site.
B. To establish that a person meets the criteria of paragraph A, a person must have
undertaken, at the time of acquisition, all appropriate inquiry into the previous
ownership and uses of the property consistent with good commercial or customary
practice in an effort to minimize liability. For purposes of this paragraph, the court
shall take into account any specialized knowledge or experience on the part of the
person, the relationship of the purchase price to the value of the property if
uncontaminated, commonly known or reasonably ascertainable information about the
property, the obviousness of the presence or likely presence of contamination of the
property, and the ability to detect that contamination by appropriate inspection; or all
appropriate inquiry into the previous ownership and uses of the property consistent
with good commercial or customary practice consists of:
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 (1) For a property acquisition after October 31, 2006, conducting all appropriate
inquiries in accordance with the United States Environmental Protection Agency's
All Appropriate Inquiries Rule, 40 Code of Federal Regulations, Part 312 (2023);
and
(2) For a property acquisition after December 31, 1993 and before November 1,
2006, conducting a Phase I Environmental Site Assessment in accordance with the
ASTM E1527-21 standard in effect at the time of purchase.
For a property acquisition prior to January 1, 1994, the State and the court shall take
into account any specialized knowledge or experience on the part of the person, the
relationship of the purchase price to the value of the property if uncontaminated,
commonly known or reasonably ascertainable information about the property, the
obviousness of the presence or likely presence of contamination of the property and
the ability to detect that contamination by appropriate inspection.
C. The 3rd-party defense provided by this subsection is not available to defend against
any claim, administrative proceeding or civil action pursuant to section 1365 or any
other provision of this chapter; or
4. Combination. Any combination of the foregoing subsections.
Funds recovered under this section shall must be deposited into the Uncontrolled Sites
Fund and shall must be used by the department to carry out the purposes of this chapter.
Sec. 3. 38 MRSA §1367-B, sub-§1-C is enacted to read:
1-C. Limited exemption from liability for department-licensed land application
of sludge or sludge-derived products. A person is exempt from liability under section
1367 as a responsible party for contamination of an uncontrolled site with perfluoroalkyl
and polyfluoroalkyl substances if the person establishes to the satisfaction of the
commissioner that the source of the contamination was primarily caused by
department-licensed land application of sludge or sludge-derived products performed by a
3rd party that is not that person’s employee or agent.
A. The exemption from liability provided by this subsection is not available to a person
if the commissioner determines that:
(1) The 3rd party that performed the land application of sludge or sludge-derived
products has failed to follow applicable requirements of the department license for
land application of sludge or sludge-derived products. For the purposes of this
subparagraph, the land application of sludge or sludge-derived products is
presumed to have been performed in accordance with the applicable requirements
of the department license unless the commissioner can establish that the land
application did not comply with the license requirements;
(2) The person has failed to comply with an information request or administrative
subpoena issued by the department under this chapter; or
(3) The person has impeded or is impeding, through action or inaction, the
performance of a response action, natural resources restoration or department
investigation at the uncontrolled site.
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B. The commissioner may condition the exemption from liability provided by this
subsection upon any of the following terms that the commissioner may determine to
be necessary:
(1) To provide access to the property to the commissioner and the commissioner's
authorized representatives;
(2) To allow the commissioner or the commissioner's authorized representatives
to undertake activities at the property including placement of borings, wells,
equipment and structures on the property; or
(3) To the extent the person has title to the property, to grant easements or other
interests in the property to the department for any of the purposes provided in
subparagraph (1) or (2). An agreement to grant an easement or other interest under
this subparagraph must apply to and be binding upon the successors and assigns of
the owner. To the extent the person has title to the property, the person shall record
the agreement or a memorandum approved by the commissioner that summarizes
the agreement in the registry of deeds for the county where the property is located.
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Statutes affected:
Bill Text LD 2066, HP 1328: 38.342, 38.1367
Bill Text ACTPUB , Chapter 510: 38.342, 38.1367