Maine DEP Proposes to Revamp Solid Waste Rules
The Maine Department of Environmental Protection (DEP) issued several public notices detailing numerous proposed changes to Maine’s solid waste rules. These changes are being proposed largely in response to legislation passed during the past few years. The rulemaking includes multiple regulations in Chapters 400, 401, 403, 405, 410, 418, and 419.
The most significant proposal is DEP’s attempt in Chapter 400 to carry out a legislative mandate in P.L. 2013, ch. 458, § 1, to incorporate Maine’s solid waste management hierarchy into permitting decisions as an approval standard. The solid waste hierarchy establishes a policy to promote waste management efforts in the following order of priority: reduction; reuse; recycling; composting; waste processing that reduces volume; and land disposal. Previously, the hierarchy had served only as guidance to Maine’s policymakers, and so this change shifts the burden away from the State to applicants to demonstrate that their solid waste facilities are consistent with its mandate.
To implement the hierarchy as a permitting standard, DEP is proposing that the applicant must show that “the purpose and practices of the solid waste facility are consistent” with the hierarchy. For solid waste disposal facilities, such as incinerators and landfills, this will require applicants to demonstrate that the waste has been reduced, reused, recycled, composted and/or processed “to the maximum extent practicable prior to disposal.” Disposal facilities such as incinerators that themselves generate residue that must be disposed will also have to provide evidence of the feasibility of recycling or processing further those waste streams. Finally, other types of facilities higher up in the hierarchy, such as those involved in recycling, will have to show only that the facility will, to the maximum extent practicable, incorporate into its design and operation reduction, reuse, recycling, and other diversion techniques to minimize the amount of waste that must ultimately be disposed.
Notably, the proposed consistency analysis appears to be highly subjective. There are, for example, no bright-line rules for an applicant to identify when its actions are consistent with the hierarchy. Furthermore, the term “maximum extent practicable” is undefined, although it is generally interpreted to include consideration of factors such as cost, technology, and logistics. Applicants apparently cannot even rely on assertions that they do not own other types of facilities higher in the hierarchy, as the rule would require an analysis of processes “that are sufficiently within the control of the applicant to manage or facilitate.”
As proposed, these changes incorporating the hierarchy as an approval standard would apply to all types of solid waste facility licensing, including new licenses, expansions, amendments, and minor revisions.
Additional changes proposed to Chapter 400 would incorporate an exemption from solid waste licensing requirements for “aged, fully-hardened asphalt” by including it in the existing definition of “inert fill,” and incorporate an exemption from solid waste licensing requirements for “wood pallets that are not pressure treated or visibly contaminated, and from which fasteners have been removed” by including them in the definition of “wood wastes.”
The next category of changes carry the hierarchy through multiple other solid waste rules. These changes affect Chapters 401, 401, 403, 405, 410, and 419. Most of the changes are relatively minor, and include correcting citations to other solid waste and hazardous waste rules to reflect other proposed amendments, updating references to the C.F.R. to the most recent revision, correcting formatting and citation for consistency throughout the rules, and reallocating general definitions to Chapter 400.
The final category of proposed changes addresses Chapter 418, which contains the rules for beneficial use of solid wastes. DEP is proposing to amend Chapter 418 by replacing Appendix A (Screening Standards for Beneficial Use) with values of constituents listed in the “Maine Remedial Action Guidelines for Sites Contaminated with Hazardous Substances,” revised May 8, 2013. This replacement is intended to make the screening standards consistent with existing standards and to ensure that the most current risk values are being applied. The proposed screening standard is one-half the concentration of a RAGs listed chemical, using the lowest value among concentration values for relevant exposure pathways and scenarios for the chemical. Beyond the screening standard, an applicant will be required to include “a demonstration that the proposed beneficial use of the waste does not pose a significant risk to public health or an unreasonable threat to the natural environment.”
A public hearing on the proposed changes to Chapters 400 and 418 is scheduled for Thursday, November 6, at 1 pm at the DEP’s Response Training Room in Augusta. DEP has determined that no public hearing is warranted on the proposed changes to the remaining chapters. Anyone who believes a hearing should be held must submit a written request by the deadline for written comments, November 17, at 5 pm.
If you have questions about how these changes may affect your business, or other implications of these changes going forward, please do not hesitate to contact Tom Doyle (207.791.1214 or tdoyle@pierceatwood.com) or Brian Rayback (207.791.1188 or brayback@pierceatwood.com).