Testimony by Pete Didisheim, Advocacy Director
Senator Hastings, Representative Nass and members of the Joint Standing Committee on Judiciary. My name is Pete Didisheim. I am the Advocacy Director for the Natural Resources Council of Maine. And I appreciate this opportunity to testify in opposition to LD 281. We anticipated that the sponsor might amend the original bill so that it conformed with language in the Governor’s amendment to LD 1 – and we are just as opposed to the amended language as we were to the original.
We believe LD 281, as amended, would weaken environmental enforcement in Maine, potentially allowing some violators to escape consequences for polluting Maine’s environment. The bill also could have the unintended consequence of increasing the number of compliance issues that are forced into litigation, because of the arbitrary deadline for action.
These concerns were voiced strongly by the Office of the Attorney General and the Department of Environmental Protection both in 2005 and in 2007, when bills similar to LD 281 came before this Committee.
In his 2007 testimony, Jerry Reid, on behalf of the Attorney General, told the Committee: “we oppose [the bill] because it would undermine the State’s ability to enforce its environmental laws.”
The 2007 version of this bill required enforcement action to begin within five years of the date that the DEP or AG had “knowledge” of the violation. The Attorney General correctly pointed out that “this language is confusing and subject to different interpretations,” adding:
“If the specific date that DEP gains ‘knowledge’ of a potential violation takes on great legal significance, as it would under this bill, it’s easy to forsee many factual disputes arising about how that date should be determined in a given case. The result will be new confusion about how the environmental statutes may be applied and enforced.”
The AG also voiced concerns in 2007 that a five year statute of limitations would “force DEP to initiate the enforcement process against large industrial facilities much more frequently than is the current practice.” As a result, it would “have the unintended consequence of actually increasing litigation in this area…[because] The only way to clearly avoid losing violations to the new five year deadline would be to file a given case in court, something that is rarely necessary to resolve enforcement actions today.”
Regarding the date of ‘knowledge” issue, the AG said:
“If a violator could demonstrate that any DEP employee had knowledge of the violation five years ago, it could argue that it is immune from civil penalties for even the most serious violations of the law, including on-going toxic discharges to the air or water.”
All of these concerns are as valid today as they were in 2005 and 2007, when both the Attorney General and the DEP urged the Committee to defeat the legislation.
In 2007, however, the Committee did proceed to work the bill, and ended up reporting out amendments to Title 38 providing that the DEP or Attorney General must initiate enforcement within 10 years of the date when a licensee “has reported to the department a violation” of the state’s air and wastewater discharge laws (Title 38, §347-A. 8.
Limitations on air and wastewater discharge enforcement actions). This was an acceptable amendment: a 10-year limitation, tied to the date when a licensee reports the violation to the State, and narrowed to just air and wastewater discharges.
Sen. Hastings and Representative Nass, both of you were members of the Committee in 2007, and you helped shape the amendment and voted for its adoption. We have not heard any convincing case that additional legislating is necessary on this issue, or that the concerns raised in the past about bills like LD 281 are no longer real.
We believe LD 281 would impede legitimate enforcement of vital laws that protect Maine’s air, land, and water and the public health of Maine people, and could have the unintended consequence of increasing litigation. For these reasons, NRCM urges you to vote Ought Not to Pass on LD 281.
Attached is a copy of the 2007 testimony from the Office of the Attorney General, and the amendment adopted by this Committee, as it appears in the Maine Revised Statutes.