STATE RULEMAKING GETS INTO FULL SWING
(from Maine Townsman, September 1998)
By MMA State & Federal Relations Staff

DEP: New Solid Waste Rules Finally Adopted

On Wednesday, August 12, 1998 the Board of Environmental Protection adopted a completely revised set of rules governing solid waste management, which were last adopted in 1989. Specifically, chapters 400 (general provisions), 401 (Landfill Disposal Facilities), 402 (Transfer Stations and Storage Facilities), and 403 (Incineration Facilities) were amended. Chapters 405 and 409 were repealed and replaced so that they will now deal with Water Quality Monitoring and Processing Facilities, respectively. Chapters 404, 406 and 408 were repealed and reorganized into the remaining chapters.

As part of the process of promulgating a rule, the state agency is supposed to formally respond to the comments that were provided during the public comment process. As a sample, MMA’s comments regarding the proposed solid waste rules included:

• A request that DEP include an executive summary of the substantive changes when simultaneously amending and reorganizing a rule so that people can understand what’s going on;

• A concern related to unfunded mandates that stems from elements of the new rule that require all solid waste facilities to become compliant with whatever new obligations the new rule requires (which are hard to figure out given the restructuring of the rules) within 90 days of its effective date;

• A question whether the DEP views the hundreds of transfer stations across the state that are operating under a permit-by-rule authority to be "licensed solid waste facilities" and therefore subject to annual operating reports and annual licensing fees; and

• An objection to the application of a fairly intense traffic analysis in the circumstance of municipally-sited transfer stations.

In its formal response:

• DEP did not address the request for the agency to issue executive summaries when both substantively changing and reorganizing its rules.

• DEP is taking the position that all permit-by-rule transfer stations are "licensed solid waste disposal facilities" and therefore subject to all operational and annual fee requirements pertaining to licensed facilities.

• DEP saw no reason to change the level of traffic analysis required for municipal transfer stations even when those transfer stations are established at or near the solid waste disposal location the municipality has been using for decades.

• Finally, with respect to unfunded mandates that might be embedded within the new rules, DEP’s response was:

"Throughout the process of considering revisions to the current rules, the Department has examined each proposed change relative to whether that change would be considered an unfunded mandate to municipalities. The Department is convinced that the proposed changes in operating requirements will not require a municipality to expand or modify its activity so as to necessitate additional expenditures from local revenues." SFR contact: Geoff Herman.

DEP: Update on Proposed Biosolid Landspreading Rules

Proposed Chapter 418 (Beneficial Use of Solid Waste) is scheduled for adoption on or before October 13, 1998. This Chapter establishes rules for the beneficial use of solid waste and waste-derived products.

The changes to the sludge spreading rules as proposed in Chapter 419 (Agronomic Utilization of Residuals) will not be adopted before the October 13, 1998 deadline. Conflicts have developed between the technical standards in this rule regarding nutrient standards for sludge spreading with the Department of Agriculture’s legislative initiative to develop rules monitoring nutrient management in concentrated animal feeding operations. At the request of the Maine Farm Bureau, DEP and the Board of Environmental Protection agreed to slow the process and work with the Department of Agriculture and interested parties to address conflicts between Chapter 419 and other nutrient management standards. It is anticipated that the Board will hold a public hearing on Chapter 419 in mid-October. SFR contact: Kate Dufour.

DEP: MTBE and the Waste Gas Collection Program

Part of DEP’s "Five Point Plan" for dealing with methyl-tertiary-butyl-ether (MTBE) contamination of drinking water is a newly initiated "Waste Gasoline Stakeholders Group." The Group’s charge is to determine what, if anything, needs to be done about potential contamination of water resources by household quantities of waste gasoline (from snow machines, lawnmowers, ATVs, etc.). The greatest problem facing the group is a lack of any evidence that improper disposal of waste gasoline on the household level is an ongoing practice that threatens water resources. Additionally, there is no evidence that MTBE is a greater hazard to human health than other products classified as household hazardous waste. Given the lack of information, the most prudent course may be to develop a household hazardous waste program for all potential contaminates, rather than narrowly focus on gasoline. The idea would be to obtain state funding and technical resources to help initiate municipal household hazardous waste programs where they do not exist, and strengthen such programs where they are already in place. In its most recent meeting, the group decided to issue an interim report with the information gathered to date and wait for results of the state's well testing initiative before recommending further action. SFR contact: Linda Lockhart.

DEP/DHS: Shoreland Septic Systems

On July 23, DEP and the Department of Human Services (DHS) convened a meeting of stakeholders to review a draft "Subsurface Disposal System Inspection and Upgrade Program" prepared by a technical work group. The directive DEP and DHS seek to fulfill is to "evaluate options and develop recommendations for identifying and facilitating the upgrade or replacement of substandard and subsurface disposal systems" and report back to the Legislature. The program focus is in the shoreland zone. Those with technical expertise offered little evidence that septic systems are a threat to Maine’s water resources. The evidence presented was a study that "suggests" but does not claim that 6-7% of pollution in lakes is from septic systems. The technical work group’s proposal would require inspection of the septic system when any parcel of real estate located in the shoreland zone is transferred, similar to the inspection that occurs when a shoreland property is converted to year-round use. Costs for the inspection were estimated by some to be $1,000 per system. Among potential problems for municipalities are: 1) they will have to enforce the inspection requirement; 2) when problems are found, the municipality may be liable for system replacement in the event that the homeowner cannot pay; and 3) homebuyers may hold the municipality responsible for systems that fail soon after inspection and purchase. SFR contact: Linda Lockhart.

DOL: Respiratory Protection Standard, 2-In – 2-Out Rule

The advisory committee formed by the state OSHA Board to draft a recommended state rule for firefighters and other public employees who wear respirators has met several times since this effort was reported in the July Townsman. There are three impact areas associated with the proposed rule, which has federal origins: (1) minimum staffing levels when attacking a structure fire; (2) fitness testing for respirator equipment; and (3) providing annual physicals for fire fighting staff. Because MMA is the only entity at the table representing the interests of the municipal officers (selectmen, councils), we are particularly interested in obtaining information about the impact of these rules both with respect to increased municipal costs and liability exposure. SFR contact: Linda Lockhart.

Department of Professional Regulation: Boiler Certification Fees Doubled

On June 30 the Board of Boiler Rules voted to double the fees (from $25/boiler to $50/boiler) that municipalities and schools pay to receive a certificate of inspection from the Board. State law exempts most hot water boilers in normal use from this certification fee except for hot water boilers in municipal or school buildings. The actual inspection of hot water boilers is conducted by agents of the insurance company of the municipality or school. MMA objected to the doubling of the fees with the claim that the "service" the state provides by issuing a certificate of inspection is of limited value when the actual inspection is effectively carried out by the municipality or school itself, through its insurance company. In response to MMA’s comments, the Department has entered into a contract with a consultant for the purpose of studying regulatory programs that are being used effectively in other states and to formulate recommendations for streamlining the current boiler inspection program "without jeopardizing public safety." SFR contact: Geoff Herman.