NRCM Testimony In Opposition to LD 437, An Act to Address the Reporting of Oil Spills

by Nick Bennett, NRCM staff scientist

Good morning Senator Martin, Representative Koffman an members of the Natural Resources Committee:

My Name is Nick Bennett, I am the Staff Scientist for the Natural Resources Council of Maine, and I reside in Hallowell. 

The Natural Resources Council of Maine opposes LD 437 because it would threaten Maine’s environment and could lead to significant increases in soil, groundwater, and surface water contamination with petroleum products.  It would take away the ability of the Department to assess fines against violators who spill up to 50 gallons of a large number of petroleum products, including diesel fuel, which quickly penetrates soil and has components that can contaminate groundwater (all petroleum products in fact have these components).  It would also essentially eliminate DEP’s ability to track and check that such spills are cleaned up, a key aspect of the Departments’ responsibility to protect Maine people and their drinking water from contamination.

This bill would also undermine a sensible Maine approach to encouraging people who spill oil to report their spills to DEP. 38 MRSA § 550 states that:

Any person who causes or is responsible for a discharge in violation of section 543 is not subject to any fines or civil penalties if that person: [1991, c. 66, Pt. A, §18 (rpr).]

This makes extremely good sense.  It allows the DEP to get on the scene quickly and check to make sure an area has been properly remediated after a spill.  It also exempts the spiller from civil penalties if she reports the spill quickly to DEP.  This is a sensible carrot and stick approach that is, I believe, unique to Maine.

LD 437 would completely alter this dynamic.  It simply exempts spillers from civil penalties and from having to report any spill 50 gallons or under.  DEP will not be able to track the number of spills that occur or ensure that they are properly cleaned up, even if those spills occur on bare ground above an aquifer or drinking water supply.  Checking to make sure a 50 gallon oil spill has been cleaned up is not necessarily an easy task.  Soils must be removed, tested, and likely disposed of as hazardous waste, and sampling for remnant oil products may also be necessary.  DEP has the expertise and the laboratory resources to do this testing: many of those who spill oil will not have these resources, even if they have a spill plan.

There are other problems with LD 437.  It appears to allow a discharge of an infinite amount oil inside a building.  An oil spill inside a building could be very tricky to clean up, and a very large oil spill would likely escape to surface water or soils through floor drains or leaks in the floor.  While some buildings might fully contain a large spill, old buildings would be unlikely to. DEP should be made aware of large spills even if they occur inside a building to ensure that harm to the environment is minimized.

LD 437 also goes against the Department’s recommendations in its 2006 report to this committee entitled “Review of Maine’s Oil Discharge Reporting Statutes and Regulations”.  This report specifically and strongly recommended that the Legislature not change Maine’s oil spill statutes.  We urge the Committee to review this very thorough report carefully with regard to LD 437.

LD 437 is very similar to a previous bill presented to the Legislature in 2003 and sponsored by Representative Saviello: LD 651.  The Legislature did not pass this bill.  I have attached documentation of this Committee’s ought-not-to-pass vote and the eventual placement of this bill in the legislative files as dead.  I believe that LD 437 may be a greater threat to the environment than LD 651 because it would allow spills to bare soil without any reporting requirement and without allowing the Department to assess fines for spills that are not adequately cleaned up.  Again, I believe the Committee should review the legislative history of LD 651 as it considers LD 437.

Finally, the Committee should note that the Department does negotiate memoranda of understanding (MOAs) with entities, including large industrial facilities, in order to reduce their spill reporting requirements.  We have attached the list of these entities from DEP’s report to the Committee last year.  The full MOA with Madison Paper Company is attached to the DEP report as Appendix E if the Committee wishes to view on example of an MOA. I believe this is an appropriate way for companies to reduce their spill reporting burden, and it is preferable to amending Maine’s existing oil spill statutes.

Thank you for the opportunity to testify on this important issue, and I would be happy to take any questions.