Maine BEP Adopts Mixed Bag of Beneficial Use Rule Revisions; Requires License Modifications

On May 17, 2018, after a lengthy and tortuous rulemaking that included substantive review and authorization by the Legislature, but only if certain changes were made, the Board of Environmental Protection adopted several revisions to its Chapter 418 Beneficial Use Rules.  Chapter 418 addresses the beneficial use of solid waste (called “secondary materials” in the rule) or waste-derived products for a variety of manufacturing, construction, and industrial purposes, including use as fuel, raw material, and construction material. Through Chapter 418, the Department seeks to facilitate the beneficial use of a variety of solid wastes in a fashion protective of the environment and public health and consistent with Maine’s Solid Waste Management Hierarchy, which favors recycling and reuse over disposal.  Whether the changes adopted by the Board on May 17 will lead to more beneficial use, and less landfilling, of solid waste remains to be seen.

The most significant revisions finally approved by the Board include:

• Exemptions – New exemptions addressing the beneficial use of spent septic systems, crumb rubber for drainage, catch basin grit, virgin petroleum contaminated soil from Department supervised clean-ups, and use of not-more-than 800 tons of emulsified asphalt encapsulated petroleum contaminated soil as construction fill under paved roads and parking lots, and in other civil engineering applications. After review by the Legislature, beneficial use of urban fill soils, like those used as fill for the Back Cove of Portland, that do not meet the definition of petroleum contaminated soil must be approved via a full Chapter 418 license, even if those soils undergo the emulsified asphalt encapsulation process.
• Permits-by-Rule and Reduced Procedural Licenses –There is a new permit-by-rule for the beneficial use of tires in structures, revised standards related to reduced procedure licenses for the use of dredge material as construction fill, and a new reduced procedures provision for the use of dewatered dredge material as beach nourishment fill.
• Fuel Substitution – The revisions clarify which standards apply generally to all secondary materials proposed for use as a substitute fuel in a boiler or cement kiln and those that pertain exclusively to construction and demolition debris (CDD) wood.  The changes strive to ensure that CDD wood fuel samples collected and analyzed to demonstrate compliance with fuel quality standards are representative samples, and allow use of data gathered by a CDD wood processor to demonstrate a licensee’s compliance with fuel quality standards. Limits on the amount of chromated copper arsenate treated wood and #4 minus fines in CDD wood have been increased. Additionally, the procedure a licensee must use in the event of noncompliance with the fuel quality standards have been changed and clarified.
• Emulsified Encapsulated Petroleum Contaminated Soil (ES) – Besides the exemption mentioned previously, there are more flexible approval mechanisms for the beneficial use of ES. Because of concerns raised by the Legislature, non-petroleum contaminated ES soils must undergo full Chapter 418 licensing. In the final rule, the Department carefully defined what does and does not constitute a “petroleum contaminated soil,” and urban fill does not. 
• Appendix A – Appendix A values are used as screening standards for wastes proposed for beneficial use that are not already addressed by other provisions in Chapter 418, e.g., exemptions, permits-by-rule, reduced procedures, or fuel substitution.  Any waste that does not contain levels of constituents in excess of Appendix A levels does not require further evaluation of risk, such as a risk assessment or risk management measures. Significant changes have been made to Appendix A to reflect current science in the fields of toxicology and exposure assessment.
   

  The prior values, adopted 20 years ago, have been replaced principally with chemical values that were derived using U.S. EPA’s regional screening levels (RSLs) for Chemical Contaminants at Superfund Sites (2017). Using this new approach, many of the chemical values in Appendix A have decreased, while others have increased. Additionally, use of EPA’s RSLs in this rulemaking is a harbinger of further expected changes at the Department. We understand that staff is working on changes to its Remedial Action Guidelines (RAGs) for Sites Contaminated with Hazardous Substances and will soon introduce use of RSLs in revisions to the RAGs.

Anyone holding a current beneficial use license or contemplating a beneficial use activity should become familiar with these Chapter 418 changes. Under the rule’s transition provisions, existing licenses for ongoing beneficial uses, including permits-by-rule, must be modified to include any new or amended operating provisions of the rule that affect such licenses.  Such modifications may be made through a minor revision process.  All information necessary to demonstrate compliance with the applicable provisions of the new Chapter 418 must be submitted by licensees to the Department within 60 days of the effective date of the rule. The rule revisions will take effect sometime in early to mid-June.  Further communication to licensees about implementation of the new Chapter 418 provisions is expected from the Department.

In addition to the need to modify existing licenses, the Chapter 418 revisions are substantively significant, as well. Beneficial use of some solid wastes has been made easier, while use of others has been made more difficult. Appendix A values have both increased and decreased. Overall, how these changes will ultimately affect the ability to beneficially use solid wastes, rather than landfill them, remains to be seen. We probably won’t know the answer for at least a few years.

If you have questions about the changes to Chapter 418 or need assistance bringing your Chapter 418 license into compliance with the new rule, please don’t hesitate to contact Brian Rayback at 207.791.1188.