We recently reported on the Maine Department of Environmental Protection’s (DEP) numerous proposed changes to Maine’s solid waste rules. These changes were 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. Click here for a link to our report on the proposed changes. DEP has now adopted the proposed amendments with very few changes between the proposed and final rules. Chapters 400 and 418 became effective April 6, 2015, and the remaining revised chapters should be effective within the next few days.
The most significant change is DEP’s attempt in Chapter 400 to carry out a legislative mandate 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 will now require that an applicant 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 requires 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 now also must 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, must 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.
In our prior report on the proposed changes, we noted that the proposed consistency analysis appeared to be highly subjective. Under the proposed and final changes, for example, there are no bright-line rules for an applicant to identify when its actions are consistent with the hierarchy. Fortunately, DEP made certain changes to the final amendments that create a more objective analysis. For instance, while the term “maximum extent practicable” was undefined under the proposed changes, DEP has added a definition for “maximum extent practicable” to the final rules. There is still a concern that applicants apparently cannot rely solely on assertions that they do not own other types of facilities higher in the hierarchy, as the final rule requires an analysis of processes “that are sufficiently within the control of the applicant to manage or facilitate.” DEP did however clarify that the use of the term “sufficiently within the control of the applicant” is intended to “make clear that a facility, particularly a disposal facility, may not be in a position to further effect the reduction or recycling of waste that is sent to it because it has no, or little, ability to control that waste prior to arrival.” That said, DEP stated that the rule anticipates that if a facility applicant is reasonably able to cause further waste reduction or recycling, it will do so. DEP added that, although the rule is not intended to shift responsibility to the facility of last resort, it simply ensures that waste reduction and recycling efforts that can reasonably be undertaken by the applicant, will be.
The changes incorporating the hierarchy as an approval standard apply to all types of solid waste facility licensing, including new licenses, expansions, amendments, and minor revisions.
Additional changes to Chapter 400 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 carries the hierarchy through multiple other solid waste rules. These changes affect Chapters 401, 401, 403, 405, 410, and 419. Most of these changes are relatively minor (e.g., correcting citations, updating references, and reallocating general definitions). There were no major changes between the proposed and final versions of the amendments to these rules.
The final category of proposed changes addresses Chapter 418, which contains the rules for beneficial use of solid wastes. DEP amended 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 new screening standard is one-half the concentration of a RAG- listed chemical, using the lowest value among concentration values for relevant exposure pathways and scenarios for the chemical. As was the case under the previous rule, if an applicant cannot meet the screening standard, then the application must 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.”