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1979 Maine Attorney General Reports and Opinions 1 (1979)

handle is hein.sag/sagme9007 and id is 1 raw text is: RICv.ARD S. COcEN L. EtTENNAN .., JOHN M. R. PATERSON .TTORNEY GENERAL rDONALD G. ALEXANDER f DEPUTY ATTORNE. STATE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA, MAINE 04333 January 3, 1979 To: Henry E. Warren, Commissioner Dept. of Environmental Protection From: John M. R. Paterson, Deputy Attorney General Subject: Validity of Board of Environmental Protection Conditions in Pittston Permit. The Office of the Attorney General has been requested by the Commissioner of the Department of Environmental Protection to determine whether the conditions established by the Order of the Board of Environmental Protection with regard to the application for approval of an oil refinery submitted by Ihe Pittston Company are enforceable. The conditions described in the Board's Order of March 12, 1975 and amended June 4, 1975 include restrictions on the design, structure and navigation of vessels which can be used in conjunction with refinery activity in Eastport, Maine. The legal issue we address is whether the Board conditions have been pre-empted pursuant to Art. VI Cl. 2 of the United States Constitution (hereinafter the Supremacy Clause). The Order of the Board of Environmental Protection contains conditions which establish design and construction standards for tankers used in conjunction with the Pittston oil refinery. The Order states that the refinery can not use tankers which do not have segregated ballast and double bottoms (D 8), gas inerting systems (D 9), bilge residue tanks (D 10), bridge control systems (D 11), docking collision avoidance systems (D 12), and redundant ship to shore communications (D6). The Order also conditions the delivery of oil to the site. Oil can be transported through Head Harbor Passage in vessels less that 150,000 DWT only4if the visibility is greater than 1 mile (D 2), only if it occurs between sunrise and sunset (D 3), only if it is assisted by two 4000 H.P. tugs (D 7), and after prior clearance from Harbor Control Officer with full access to the refineries navigational facilities (D 17). Moreover, entrance to Head Harbor must be made

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