Legislative Bulletin
April 30, 1999

MERCURY BEDEVILS NATURAL RESOURCES COMMITTEE

Two bills heard by the Natural Resources Committee this week seek to reduce the amount of mercury in our environment, while two additional bills try to move the State’s mercury discharge standards a little closer to reality.

LD 1924, An Act to Reduce Mercury in Products, a bill developed by the Land and Water Resources Council, would require disclosure of mercury content and product labeling. The bill also proposes a warning on lamps that contain mercury stating that they contain a hazardous substance and may not be disposed of with regular solid waste, as well as other restrictions on the sale and distribution of elemental mercury. Most of the requirements of LD 1924 rely on labeling or information to solve mercury problems.

LD 1924 was characterized at hearing as "LD 2084 Light" because LD 2084, An Act to Reduce the Release of Mercury into the Environment from Consumer Products, does all that LD 1924 would do and much more. Both bills require disclosure and labeling; both ban the sale of non-essential mercury-containing products, such as toys, games and apparel. While LD 1924 merely requires the Land and Water Resources Council to report on the arguments against requiring manufacturers to collect mercury-added products from users, LD 2084 requires manufacturers to establish and maintain systems for collection, transportation, and disposal of mercury-added products.

Under the terms of LD 2084, no one may knowingly dispose of a labeled mercury-added product in a landfill, incineration facility, or any other solid waste disposal facility. Mercury-added products would have to be separated from other solid waste and disposed of in a collection program. The collection program has the greatest municipal impact because the responsibility for developing and maintaining the programs rests entirely on municipal and regional association solid waste disposal facilities. The programs must include public education and collection components.

Before municipalities take on the role of hazardous waste handlers, they must have the State support needed to make these programs effective. Recycling or re-use programs that are ready to receive the mercury-added products collected by municipalities must be available. To make municipalities operate collection programs without such programs in place is to require them to create the programs. Municipalities lack the resources and expertise to do more than collect these materials. State technical assistance must be available and the hazardous waste management regulations administered by the DEP need to be revised, not just to accommodate new collections, but to make them easier to follow, easier to comply with. Finally, but not of least importance, funding sources for the municipal costs must be secured. The municipal collection requirement is a mandate; the costs must be calculated and the State must contribute to those costs.

Acting DEP Commissioner Brooke Barnes lead those testifying in support of the bills, but advised the Committee that both the manufacturer take-back and municipal collection proposals are premature and that these ideas need study. Other testimony echoed the need for study and, despite support for the concept, asked the Committee to avoid instituting another "Car Test." Opposition to these bills came entirely from manufacturers who would be subject to the labeling and product return programs. A light bulb manufacturer speculated that a return program would introduce more environmental hazard from transportation of the product because of the breakage that could be expected in transit. Many who testified on these bills, regardless of the position they took on the bills, told the Committee that adoption of the Universal Waste Rule (LD 1520) would go along way toward assisting Maine to effectively deal with hazardous waste.

The point of these labeling and collection bills is to reduce the amount of mercury entering the waste stream in order to reduce the amount introduced into landfills, or processed by wastewater treatment plants. The two mercury bills dealing with the problems of mercury in wastewater are LD 2038, An Act to Amend the Water Quality Laws to Establish a New Standard for Mercury Discharges and LD 2151, An Act to Revise the State’s Water Quality Standards. Both bills would conform Maine’s discharge limit for mercury to that of the federal standard, known as the "Gold Book" standard. LD 2038, which MMA’s membership supports, would preserve the State’s ability to enact stricter standards than those of the federal government, once the DEP has had the opportunity to determine what those standards should be and recommend them to the Legislature.

Maine’s current standard for mercury prohibits discharge that would increase the "natural concentration" of mercury in receiving waters. This standard has been in place since 1972, when the only entity in Maine that was discharging any measurable mercury was Holterchem in Orrington. When the standard was enacted, existing mercury dischargers could be grandfathered at current levels and only Holterchem sought that protection. The testing technology has advanced since 1972 to the degree that we can now detect levels of mercury in the parts per trillion. Although the detection capacities have improved remarkably,no one can say with any certainty what "natural concentration" may be. It is probably higher in our post-industrial time period than it was when Columbus landed, but not necessarily. DEP has chosen 4.48 nanograms per Liter as a surrogate for natural concentration. Testing with the latest methods has only been instituted within the last year and it appears that a majority of Maine’s wastewater treatment plants are exceeding the 4.48 nanograms. Until more testing has been completed, actual numbers cannot be substantiated.

No one wants to "roll back" Maine’s environmental standards. We are justifiably proud of our environmental standards and successes. However, those who understand the issues universally believe that we need to deal with the wastewater treatment facilities’ mercury compliance issue. Wastewater treatment plants neither manufacture mercury nor use it in their processes. Every nonogram of mercury they struggle to remove is sent to them by businesses, commercial enterprises, government, medical and dental facilities, and households. Our drinking water is allowed to contain mercury at the level of 200 parts per million, but this same water, if dumped into a river or lake, would be in violation of state law. Drinking water from a fountain at the State House Complex measured 17-22 nanograms of mercury.

The solution offered by both bills – an assumption of the federal standard for mercury discharge – would solve the problem. Maine already uses the federal standards for every other regulated toxic substance. Mercury is the single exception. Still, enacting into law a higher tolerance for pollution will be a very difficult decision for the 119th Legislature. An alternative was offered at the public hearing: leave the standard, but enact a moratorium on enforcement until the DEP determines what natural concentrations are and recommends a course of action. One problem with the moratorium is that it would leave those who are unable to attain the zero discharge standard open to lawsuits brought under the Federal Clean Water Act to require enforcement. Another alternative, enactment of a mercury enforcement program that is separate from enforcement for other toxic discharge violations, may provide more protection from the third-party lawsuits. A two-tiered approach to enforcement, enacted into statute so that Maine’s DEP would be protected, could determine a level of penalties for low-level violators that would require reduction plans, public education, and reasonably achievable requirements. Higher-level violators could remain subject to more onerous penalty provisions.

Mercury in the wastewater comes from mercury in the waste stream. Alternatives are to reduce the mercury in the waste stream or improve technology that removes mercury from the wastewater. Removing mercury from wastewater means increasing its content in sludge. Clearly, it is the waste stream that must be the focus of mercury reduction efforts. LD 1924 would provide a beginning point and initiate thoughtful consideration of the goals, while LD 2084 describes future efforts. In the meantime, some relief must be provided to our non-compliant wastewater treatment facilities that are left "holding the mercury." (LL)

FUEL TAX INCREASE UPDATE

In the last few weeks much discussion has taken place over the appropriate fuel tax increase. There are several proposals being floated that would reduce the fuel tax hike from the proposed 5-cent increase to a 4-cent or 3-cent increase. One proposal would require that any fuel tax increase be incrementally enacted over the next two or three years. For example, in the next fiscal year (FY 2000) the tax would increase by 2 cents, followed by one cent increases in FY 01 and FY 02. Also on the table is the possibility of using General Fund revenue to either replace or reduce a fuel tax increase.

What is at stake as these discussions continue is $45 million over the biennium for Local Road Assistance. The way the Highway Budget has been organized, there is no money to fund the Local Road Assistance Program without an infusion of additional revenue. To put it another way, without a Highway Fund revenue increase or General Fund appropriation, the Legislature will have to decide to either put the Local Road Assistance Program (LRAP) out to bond, cut other Department of Transportation programs, or reduce the LRAP allocation to balance all the financial demands in the transportation budget.

MMA supports the fuel tax increase and strongly encourages you to contact your state representatives about this important issue. Members of the House can be reached at 1-800-423-2900 and member of the Senate can be reached at 1-800-423-6900. (KD)

WHY YOU SHOULD ALWAYS THINK TWICE BEFORE JOINING A FORESTRY COMPACT

When special interest groups want to make it difficult for municipalities to adopt certain ordinances they try to get the Legislature to either pre-empt municipal home rule authority with respect to that activity or add so many procedural steps to the ordinance adoption process that the municipality is bound to trip up somewhere and fail to enact the ordinance properly. It’s called "weighing down" home rule. Elsewhere in this edition of the Legislative Bulletin there is an article about a bill before the State and Local Government Committee that describes the infancy stages of that effort with respect to firearm discharge ordinances.

That strategy of weighing down home rule with excessive process has reached full maturity with respect to municipal timber harvesting ordinances. Since the passage of the Forest Practices Act in 1990, local timber harvesting ordinances have been encumbered with the most procedurally difficult and exacting adoption process of any local ordinance, by far. A bill that is now coming out of the Agriculture, Conservation and Forestry Committee would add a few more hurdles for municipalities to jump through in order to adopt a timber harvesting ordinance. Thus far, the bill has received a 10-1 "ought to pass" report. Only Rep. Paul Volenik (Brooklin) has been able to look at what is already required of municipalities with respect to this kind of ordinance with the conclusion that "enough is enough".

LD 1888, An Act To Amend the Laws Relating To Development and Centralized Listing of Municipal Ordinances that Apply to Forestry Practices, is the only surviving remnant of the ill-fated "Forestry Compact" of 1996. Some background is instructive. The lesson is to think twice before entering into "compacts"; take a good, strong look at your compact "partners".

First there was the ban clearcutting proposal that had cleared the petition signature requirement so as to be placed on the statewide ballot.

Governor King intended to innoculate against the ban clearcutting proposal by developing an alternative, which was known as the Forestry Compact. When Governor King was working to develop the forestry compact, MMA was asked to participate because the Association’s Executive Committee had voted its opposition to the ban clearcutting proposal. Specifically, the Governor wanted the Small Woodlot Owners of Maine (SWOAM) to support the developing compact. To make the compact attractive to SWOAM, MMA was asked what could be done with respect to the ordinance development process inasmuch as local timber harvesting ordinances were of concern to SWOAM. Even though municipal ordinances were not even remotely a core issue with respect to the ban clearcutting proposal or the alternative compact, MMA developed language for the Compact (substantially the same language, ironically, that is now LD 1888) as a contribution to the Forestry Compact to bring SWOAM on board and help with the Compact’s passage.

What is important to understand is that the contribution was made by MMA to help achieve some of the positive elements of the Compact, most particularly the change in definition of "clear cut" from residual of 30 square feet basal area per acre to a residual of 45 square feet basal area per acre, which would have reduced the need for municipal ordinances in the first place. Like the rest of the Compact, that most important element of the agreement was never made law.

Needless to say, the Compact was not enacted. SWOAM’s support of the Compact could never be described as enthusiastic. In its second presentation to the voters, SWOAM did not support the Compact at all, staying neutral instead.

The only residual left in the wake of the Compact is the piece on municipal ordinances, which was immediately stripped out of the Compact and introduced in 1997 as a stand-alone bill sponsored by Senator Marge Kilkelly (Lincoln Cty.). After failing passage in the 118th Legislature, nearly the same bill was introduced this session as LD 1888, again sponsored by Senator Kilkelly. The Forestry Compact has become the junk car out back that is being cannibalized for just one part.

As lukewarm as SWOAM was with respect to the Compact, the group is now vigorously supportive of LD 1888. The King Administration doesn’t seem to find any offense in stripping out part of a much larger agreement and running it separately as though it should stand on its own. In any event, the Administration has taken a "neither for nor against" stance this time around, and the Maine Forest Service has indicated a willingness to pay out of its apparently deep pockets all municipal costs associated with the new mandates of LD 1888, thus allowing the bill to be passed without the normal scrutiny as to its costs.

In order to frame the issue, it should be noted that of the 494 municipalities in Maine, there are 44 local timber harvesting ordinances. According to MFS testimony, all but 6 were originally enacted before 1990, which is testimony to the effectiveness of weighing down home rule. Most of the local timber harvesting ordinances, by any standard of measure, represent innocuous regulation to protect public rights of way from being used at wood yards and buffer intense timber harvesting activity from public areas. Less than ten of those ordinances restrict the practice of clearcutting or otherwise generally limit the volume of harvesting in various ways. Typically, those ordinances exist in communities that have experienced widespread or otherwise intense timber harvesting and the local ordinance is working exactly the way home rule was designed to work; that is, to protect the interests of the community that are not otherwise being protected by state law.

If you read the title of LD 1888, you’d get the impression that the bill amends current law regarding the centralized listing of timber harvesting ordinances. Actually, it doesn’t. There is a bunch of underlined language in the bill to give that impression, but the underlined language is actually existing law.

Since 1991, municipalities have been required to provide to the Department of Conservation, Maine Forest Services (MFS), a copy of a proposed timber harvesting ordinance 30 days in advance of any local public hearing on that ordinance. In a very unique feature of Maine law, that public hearing must be held over 6 weeks (45 days) in advance of the town meeting , so the proposed ordinance has to be developed over 10 weeks in advance of the town meeting. To prepare that ordinance, the town must engage the assistance of a licensed professional forester and the town must have a face-to-face meeting with state forestry employees in order to obtain guidance as to how to achieve the town’s forest practices goals. In addition, municipalities have been required since 1990 to send any finally-adopted timber harvesting ordinance to the state within 30 days of adoption.

This has been the mandate of the last decade, with respect to which LD 1888 neither adds nor subtracts.

The purpose of requiring the town to ship a copy of a proposed timber harvesting ordinance to the state 75 days in advance of the town meeting and a final copy of any ordinance within 30 days of adoption was presumably for the purpose of creating a centralized listing of municipal ordinance activity. Despite the woodlot owners’ claims that they cannot keep track oif local ordinance activities in those 44 communities, for nearly 10 years they have had direct access to this centralized listing, which even provides advance notice of proposed ordinances 75 days before enactment.

If LD 1888 doesn’t change the centralized listing mandate, it boosts the public hearing notification mandate by a couple of orders of magnitude. Existing law requires the public hearing for these ordinances to be held over 6 weeks before the town meeting, and public notice of that hearing must be provided in at least the same manner as the municipality provides notice to all public meetings. LD 1888 would add to that standard the published notice standard required of zoning ordinances, which includes a minimum of two published notices in a newspaper of general circulation (Class 2 postage, no "shopping notes" allowed), the first at least 14 days before the hearing and the second at least 7 days before the hearing.

LD 1888 would also require the municipality to mail out at least 14 days before the public hearing an individualized notice of the hearing to every landowner on the tax maps.

Other mandates imposed by LD 1888 would be to require all timber harvesting ordinances enacted before 1990 to come into "definitional compliance". As part of the 1990 Forest Practices Act, the Legislature required all timber harvesting ordinances to defined their terms, such as "clear cut", in the same way that the state defines the term. Since new laws are generally prospective in nature, the definitional compliance standard did not apply to pre-existing ordinances. LD 1888 would make the 30-odd municipalities with grandfathered ordinances come into definitional compliance. Despite the unusually exacting ordinance adoption process, it would give them just 8 months from today to do so.

Finally, LD 1888 gives people a 90-day window to sue the town in Superior Court after a timber harvesting ordinance is adopted or amended if they believe they were injured in some way because the town failed to meet every procedural standard The purpose of the suit would be to have the ordinance struck down.

LD 1888 would obligate the state to pay for the new mandated procedural requirements. Last time around, in the 118th Legislature, the bill received legislative support but died on the Appropriations Table for its fiscal note which was in the tens of thousands of dollars. This time, the Maine Forest Service has erased any fiscal roadblock by expressing a willingness to reimburse municipalities out of the Department’s existing revenues. The size of that fiscal obligation has yet to be determined. MFS believes the cost will be de minimus, the Legislature’s financial staff peg the cost in the $10,000 annual range.

There are 44 timber harvesting ordinances in a field of 494. Most are innocuous. Those that employ significant standards were enacted, in large part, by rural town meetings made up of common sense people who know the woods in reaction to timber harvesting problems that actually exist and that state law doesn’t address. The Legislature has already made these ordinances difficult to adopt by requiring very unique and exacting procedural requirements. Augusta has weighed down home rule in this area until it hardly can walk.

LD 1888 represents a piling-on. (GH)

WORKERS' COMPENSATION STATUS

MMA is tracking approximately 10 of the Labor Committee’s bills dealing with Workers Compensation issues that have particular municipal impact. Of those ten, it is likely that four are headed for heated floor debate following divided Committee reports.

Four bills have been stopped in Committee, with an ought-not-to-pass vote showing the Committee’s unwillingness to subject the full Legislature to these ideas. LD, 778, An Act to Require Insurance companies to Pay Workers’ Compensation Benefits Until a Hearing is Called if Contesting Payments, would have provided for payment of benefits that the employer might never be able to recover, even if they were not due to the employee. LD 1350, An Act to Exclude Intentional Tort Claims from the Application of the Maine Workers’ Compensation Act of 1972, sought to allow intentional tort claims against the employer as well as the now exclusive remedy of workers’ compensation. LD 1353, An Act to Amend the Workers’ Compensation Laws as They Pertain to Wage Statements, required employers to provide wage statements to the Workers’ Compensation Board within 15 days of the injury, rather than the current 30 days. LD 1913, An Act to Ensure Fair Access to the Workers Compensation Utilization and Review System, would have removed the insurer’s ability to appoint an independent medical examiner, and repealed the utilization review system. All of these bills are, for all intents and purposes, dead, as far as the First Regular Session of the 119th Legislature is concerned.

Two additional bills are being carried over to the Second Session to allow more time for research and consideration. These bills are LD 1988, An Act to Provide for Benefits to Surviving Dependents of Employees Who Die as a Result of Work Injuries, dealing with survivor benefits for work-related deaths; and LD 2075, An Act to Amend the Workers’ Compensation Act as it Pertains to Occupational Health, which will facilitate study of the relationship between workers’ compensation and employee exposure to hazardous chemical agents.

The remaining workers’ compensation bills will be the subject of discussion and debate in the House and Senate over the next few weeks.

LD 118, An Act to Exclude Claims for Intentional Criminal Acts from the Application of the Workers’ Compensation Act of 1992, authorizes civil suits against employers outside the Workers’ Compensation system in limited circumstances. A basic premise of workers compensation law is that the workers compensation system is the only way an injured employee can be compensated, but that compensation is guaranteed for legitimately work-related injuries. This bill would allow employees to sue their employers, in addition to receiving workers compensation payments, in cases were criminal acts cause injury or death. Not all of the criminal acts covered by this right to sue would be necessarily intentional acts, for example, manslaughter or reckless conduct.

LD 776, An Act to Amend the Workers’ Compensation Law as It Pertains to Employer-selected Health Care Providers, removes the provision in current workers’ compensation law that gives an employer the right to select a health care provider for an injured employee for the first 10 days after injury. Because the health care providers selected by employers are experienced in occupational injury, they provide the best care in the least amount of time with the best recovery outcome for both the injured worker and the employer. The business community estimates that this bill would increase system costs by 5% to 8%, or $13 to $21 million per year.

LD 806, An Act to Provide Adjustments to Accommodate Increases in the Cost of Living for Injured Workers, provides an annual cost-of-living adjustment for injuries beginning on the sixth anniversary of the injury. The price tag estimated for this change is 3.4% per year, or $9,000,000 per year.

LD 2073, An Act to Amend the Workers’ Compensation Laws Pertaining to Attorney’s Fees, would return the system to "prevail," as the system is called whereby employers and insurers have to pay for the employees’ attorney fees if the employees win, or prevail, in suits against employers. As written, the bill provides some limits on the assessment for legal fees that the employer must pay, but the limits are not likely to be effective. Business estimates that this change would increase system costs by 7% to 14%, or $18.5 to $37 million per year.

Benefits attributed to the 1992 Workers’ Compensation Law reforms include increased safety, more and better paying jobs, and less litigation. Rolling back the reforms through these bills may mean a loss of these advantages as well as a tremendous increase in employer costs. (LL)

STATE & LOCAL DIVIDED ON MUNICIPAL ISSUES

In the past few weeks the State and Local Government Committee has worked several bills of municipal significance. In three cases, the majority reports do not favor municipalities. The first establishes a municipal mandate; the second duplicates a federal preemption; and the third damages the integrity of the municipal charter development process.

LD 1379, An Act Regarding Municipal Firearm Discharge Ordinances, is a bill developed by the Sportsman’s Alliance of Maine (SAM). As printed LD 1379, would have prohibited a municipality from enacting an ordinance controlling the discharge of firearms in populated sections of the community without providing an advance copy of the proposed ordinance to the Department of Inland Fisheries and Wildlife, along with written notification of any public hearing dates at least 10 days in advance of those hearings. The printed bill would also require any municipality that adopts or amends a firearm discharge ordinance to provide IF&W with a copy of the ordinance and a map of the no-discharge area within 30 days of local enactment.

The purported reason for providing the advanced notice was to allow IF&W officials (or SAM members, perhaps) to attend the public hearing and explain to the voters how firearm discharge limitation can interfere with game management systems (i.e., hunting) and lead to a proliferation of the deer population. Apparently, IF&W and SAM believe this consequence of no hunting zones is a potential result that local voters are unable to perceive on their own.

The reason for requiring the municipalities to send a copy of the firearm discharge ordinances and map to IF&W within 30 days of enactment is so that a centralized file can be maintained in Augusta. Typical of state agency mandates is the fact that neither IF&W or SAM, for that matter, ever asked MMA to assist in the voluntary creation of a centralized file, which would be easy enough to accomplish. In the rush for another law, MMA was never even contacted about the concerns that underlie this bill.

In any event, the Committee unanimously voted that this bill "ought to pass as amended." The Committee amendment eliminates the pre-adoption notification to IF&W, but requires municipalities to forward to IF&W, within 30 days of enactment or amendment, a copy of the new or amended firearm discharge ordinance and a map showing the no-discharge zone. As a unanimous report, the bill will float through the process on consent agendas until it comes up for the roll-call vote in House and Senate to pass the measure as a municipal mandate.

LD 1800, An Act Concerning Standards for Operation and Maintenance of Radio Antenna Towers. The Committee voted 11 to 2 that LD 1800, sponsored by Senate President Mark Lawrence (York Cty.) "ought to pass." This bill duplicates a federal law preempting municipal radio antenna ordinances. Currently under federal preemption, if a municipal ordinance that somehow governs radio antenna reaches beyond its authority to address health, safety or aesthetic issues, the aggrieved party has a remedy under federal law. MMA provided testimony in opposition to LD 1800 because municipal officials find it unnecessary for the state to add another law to Maine statutes when a federal law is available to a person who has a grievance with a municipal ordinance.

LD 2127, An Act to Allow the Direct Submission to Voters of Municipal Charter Revisions. The Committee voted 7 to 6 that LD 2127 sponsored by Rep. John Tuttle (Sanford), "ought to pass." This bill authorizes petitioners to bypass the charter commission process in order to propose changes to an existing municipal charter. At its April meeting, MMA’s Legislative Policy Committee (LPC) voted to oppose LD 2127 on the principle that the municipal charter is essentially the municipal constitution. There is no direct citizen access to the state Constitution for the reason that the significance of constitutional law requires a deliberate and thoughtful process before any recommendations should be presented to the voters, and the State Legislature is the designated deliberative body to recommend constitutional changes to the electorate. Municipal officials believe that the same public policy holds true on the local level, and charter recommendations should be presented to the voters only after an issue has been properly studied.

Debate will begin on LD 2127 on Monday, May 3 in the House. (KD)

SALT/SAND STORAGE BILLS TABLED

On Thursday the Transportation Committee unanimously voted to table LD 53, Resolve, Requiring the State to Reimburse Towns for the Construction of Salt and Sand Storage Facilities, and LD 2156, An Act to Amend the Laws Governing the Construction of Salt and Sand Storage Facilities. The Committee tabled these bills in order to consider them in conjunction with the Highway Fund Part II budget and the transportation bonding package. Many members of the Committee thought it was necessary to include these bills as part of their Highway Fund Part II discussions on funding. Options would be to either fund the fiscal note on LD 53 or to appropriate funds, through LD 2156, to fund the existing salt/sand storage facilities program.

LD 53, sponsored by Rep. Ben Rines (Wiscasset) requires the state to raise $2.3 million to reimburse municipalities that have built but have not yet received the state’s share of the cost of the storage facility. LD 2156, sponsored by Sen. Bill O’Gara (Cumberland Cty.) and Rep. Christine Savage (Union), restructures the 12-year-old law by repealing the mandate to build storage facilities on priority #4 and #5 municipalities. The repeal of this mandate would enable the state and municipalities to more appropriately invest funds in only those salt/sand pile locations that have an adverse impact on Maine’s ground and surface waters. (For more information on the proposed salt/sand storage facilities program see the April 2 edition of the Bulletin.)

The Department of Transportation (DOT), Department of Environmental Protection and MMA provided testimony in favor of LD 2156. All testimony in favor of the bill focused on the benefits of repealing the mandate on those municipalities that are not impacting the state’s drinking water and reducing the state’s share of the program from $25 million to approximately $8 million. DOT proposed two amendments to the bill. The first amendment would ensure that those priority #4 and #5 municipalities that have already built facilities would be given some degree of priority in the funding schedule to secure payment for built facilities sooner rather than later. The amendment also extends the cut-off date for reimbursement to priority #4 and #5 municipalities that are currently in the process of building facilities from January 1, 1999 to November 1, 1999. DOT felt that both of these changes were important in order to protect the best interests of all municipalities. (KD)

ACCESSIBILITY BILL CLEARS SENATE

On Thursday this week, by a vote of 9 to 22, the Senate overturned an 11-2 "ought not to pass" Legal and Veteran Affairs Committee report on LD 87, An Act to Require All Voting Places to be Accessible. The Committee’s "ought not to pass" report had previously been accepted in the House. LD 87 requires municipalities to utilize only those polling places that are handicapped accessible. Since existing state law requires that at minimum one polling location is accessible, this bill targets only those municipalities with multiple voting districts. Of the 32 multiple polling district municipalities, only 5 have locations which are not 100% compliant.

It is not clear whether all legislators understand the issue fully. It is, obviously, an easy vote to say that all the polling places should be completely accessible. It is much more difficult to make that happen and it is virtually impossible to make that happen within the effective date of LD 87. The immediate effect of LD 87 will be some ward consolidation in 1999/2000.

There are two reasons why a voting precinct may not have an accessible facility.

The first reason is that there is no public facility in the ward and the private facility that the municipality borrows, rents or uses is not accessible to persons with disability. It may be a nursing or retirement home or a private facility such as a fraternal lodge. It may be the case that the private facility, under the Americans With Disabilities Act, should also be accessible, but the bottom-line is that the municipality either uses the facility or consolidates the ward.

The other reason is that the structure is publicly owned but the costs of an accessibility retrofit is so great the building has been effectively discontinued for ongoing public function. For example in Gardiner one of the city’s 7 polling places is inaccessible for the reason that there is no other available place in that ward for voting. The residents of ward 5 vote in an old school building, which coincidentally now houses the Head Start program. The municipality can not construct a ramp because of the size of the lot and the placement of the building on that lot. For ADA purposes, the old school building is functionally obsolete. Gardiner’s only solution will be to consolidate ward 5 with one of the other wards, thereby closing one of the community-based polling places.

The underlying issue is whether there should be no such thing as an inaccessible polling place if the practical effect of that decision is to consolidate wards. On Monday, May 3 LD 87 will bounce back to the House in "non concurrence". MMA is making every effort to provide the Legislature at that time with a complete understanding of the impact of the measure. (KD)

MUNICIPAL PARTICIPATION IMPROVED REGARDING ‘NO PASSING’ ZONES

The Transportation Committee voted that LD 938, An Act to Allow the Department of Transportation to Designate No-Passing Zones Upon Request From a Municipality, sponsored by Rep. Gary Wheel (Eliot) "ought to pass as amended". As originally printed this bill would have prohibited persons, except in an emergency, from crossing a solid no-passing line painted in the center of a road. The amended bill strengthens municipal participation in determining which residential areas within a municipality should be in a no-passing zone and also clearly establishes that the double yellow line indicates a no-passing zone.

The amended bill establishes a process that allows a municipality interested in establishing a no-passing zone to notify the Department of Transportation (DOT) of that interest in writing. Within in 30-days of that notification DOT is required to grant the municipal request unless the Department determines the request, if implemented, would impact the flow of traffic or create a threat to public safety. If the request is denied, the DOT response to the municipality must state the specific reasons DOT is denying the request.

In the case of a denied request, the municipality may request that DOT hold a public hearing in the municipality to gather public input on the requested change. Thirty-days after the public hearing the DOT must inform the municipality of its final decision.

If the municipal request for a no-pass zone is approved, the Department is responsible for ensuring that double, solid, yellow center lines are printed along the entire length of zone.

MMA supports the amended bill because it establishes a process for municipalities to play an integral role in regulating traffic flow within the municipal boundaries. With its unanimous "ought to pass as amended report", the bill is now moving through the legislative enactment process on the consent agendas. (KD)

LEGISLATIVE HEARINGS

Wednesday, May 5th
Taxation
Room 221, State House, 1:15 p.m.
Tel. 287-1552

LD 2211 – Resolve, to Modify the State Valuation for the Sappi Plant in the City of Westbrook (EMERGENCY) (Sponsor: USHER)

LD 1916 – An Act Concerning the Regulation and Treatment of Time-shares (Sponsor: CIANCHETTE)