January 25, 2011

Phase I of Gov. LePage's regulatory reform proposal

Administrative Procedures Act

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

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

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

•    Require landowner permission prior to gathering data that will be used in public venues for 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 Community Development to help businesses navigate regulatory processes.

Department of Environmental Protection

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

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

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

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

•    Adopt a standard for rulemaking requiring rules to be predicated on valid science and clarity 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 Permit process would be more appropriate for small sources and free up additional Air Bureau resources for larger projects.

•    When rulemaking regarding EPA’s 1-hour sulfur dioxide standard begins, DEP should not 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 and minor modifications without being required to by federal law.

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

•    Reconsider and revise statutorily allowable sulfur levels, considering elimination.  The federal EPA requires each state to show reasonable progress toward natural visibility conditions near national parks by 2064.  With this as a reason, DEP encouraged this statutory lowering of allowable sulfur in residual fuel oil from 2% to 0.5% beginning in 2018, which is anticipated to substantially increase cost.

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

•    Review all consumer products recycling and “take-back” statutes and revise as necessary to 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 products at all, it should only do so when clearly justified on risk-benefit or cost benefit basis.

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