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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
f                  DEPUTY ATTORNE.
January 3, 1979
To:     Henry E. Warren, Commissioner   Dept. of Environmental
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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