Landfills Must Be Licensed
by Geoffrey Herman, MMA Paralegal
(from Maine Townsman, June 1991)


The only solid waste disposal facilities which can legally operate in Maine today without a DEP license are those landfills established prior to October 3, 1973. This "grandfathered" status will soon expire. State regulations provide that no unlicensed municipal solid waste disposal facility can continue in operation after January 1, 1992. The pertinent state regulations governing solid waste disposal are found at 06-096 Code of Maine Regulations, chapters 400-409.

Although there was an effort this legislative session to establish a two-year moratorium on the enforcement of the January 1 deadline (LD 805), that legislative initiative failed in committee, and the mandatory licensing date remains in effect. Because LD 805 failed to gain legislative approval, municipalities operating unlicensed landfills must decide very quickly to either apply for a license or close the landfill and establish an alternative waste disposal or transfer system.

For a variety of reasons, there are many municipalities that will not be able to complete this task by the January 1 target date. At the legislative work sessions on LD 805, representations were made by the DEP that its enforcement of the licensing deadline would be "reasonably" accomplished. The purpose of this article is to outline some steps a municipality could take to reduce the possibility of facing penalties or other enforcement action imposed by the DEP for operating an unlicensed landfill after the first of the year. Although this article primarily concerns the approximately 225 municipalities which are presently operating unlicensed landfills, some of the information below might also be helpful to those municipalities who will have a difficult time meeting landfill closure deadlines or relicensing deadlines for landfills or transfer stations.

There are three interrelated factors that must be weighed by any municipality currently operating an unlicensed landfill before the decision can be made as to how to proceed:

1) Is the option of obtaining a DEP license for an existing municipal landfill either environmentally or financially feasible?

2) What alternative solid waste disposal systems are available and at what cost?

3) What are the municipality's landfill closure responsibilities, and at what cost?

These three components of the decision making process will be addressed in order. Before entering into that discussion, it should be pointed out that each decision-making issue - licensing, alternative disposal options, and closure - will necessarily involve interaction with three separate bureaucratic units of state government.

For advice and guidance with regard to licensing issues, the municipality should contact the DEP's Bureau of Hazardous Materials and Solid Waste Control, Division of Solid Waste Facilities Regulation, Paula Clark, director, at 582-8740.

For advice and guidance with regard to alternative disposal or transfer options, the municipality should contact the Maine Waste Management Agency, Sherry Huber, executive director, at 1-800-662-4545.

For advice and guidance with regard to landfill closure, the municipality should contact the DEPs Bureau of Hazardous Material and Solid Waste Control, Division of Site Investigation and Remediation, Mike Barden, director, at 289-2651.

Can Our Landfill Be Licensed?

The entire thrust of solid waste disposal law and regulation is to discontinue and close "attenuation landfills," which are those "unsecure" landfills not designed to collect the rainwater that leaches through the buried solid waste. Although DEP's regulations do not expressly prohibit the licensing of grandfathered landfills, it is fair to say that the same result is nearly accomplished by designed regulatory obstacles, particularly for the smaller municipalities which do not have access to significant financial and technical resources.

The way the regulations work is as follows. Before the DEP can issue an license for a municipal landfill, the DEP staff must make eight broad findings of fact in accordance with an "a-i" criteria list. The precise regulatory criteria supporting the findings of fact are detailed in the application submission requirements and the explicit performance standards. In addition to finding that the proposed facility meets all the criteria of Maine's solid waste laws and regulations, and Maine's Site Location of Development laws and regulations, some of the regulatory criteria which could prohibit the issuance of a license are:

- The landfill may not be sited directly over nor within 300 feet of a significant sand and gravel aquifer and does not pose an unreasonable threat to any nearby sand and gravel aquifer;

- The landfill may not pose an unreasonable threat to the quality of an underlying fractured bedrock aquifer;

- The landfill may not pollute any water of the State, contaminate the ambient air, or otherwise constitute a hazard to health or welfare. For any unlicensed landfill that is found to be currently polluting ground or surface waters, the applicant must demonstrate successful corrective action and remediation before there can be a finding that the facility will not continue to pollute;

- The landfill may not be sited within 300 feet of a classified water body (although it is possible to obtain a variance from this provision from the Board of Environmental Protection), public road or property boundary, nor within 1000 feet of any residence or spring or well used for public or private drinking water.

- The landfill must be operated in accordance with a recycling/source reduction program.

Furthermore, the licensing of "attenuation landfills" is only allowed for municipalities under 5000 in population, and even then a variance must be obtained from the BEP. To obtain such a variance, something resembling an "undue hardship" test is applied, whereby the Board of Environmental Protection is convinced that no alternative disposal option exists.

As noted above, the only landfills which can legally operate without a DEP license today are those landfills which were established before October 3, 1973. Those landfills, therefore, are at least 18 years old and typically much older. The old landfills are attenuation landfills, and there exists within the DEP regulation an implied suspicion that attenuation landfills are necessarily polluting their immediate environment. Finally, the old landfills were often established in abandoned gravel pits, and deposits of gravel are often located over or nearby significant aquifers.

For these reasons, the DEP's advises that a municipality would be wasting its money to even attempt to obtain an initial license for any landfill which is located over or nearby to a significant sand or gravel aquifer. Neither would it be financially wise for a municipality to attempt to obtain an initial license for a landfill which has or probably has contributed to ground or surface water pollution. State law and regulation either flatly prohibit the issuance of such a license, or the regulatory obstacle is simply too large to overcome without extraordinary resources. Finally, the municipality should view the licensing of an attenuation landfill as extremely unlikely if viable waste disposal options exist.

Is It Financially Feasible to Obtain A Landfill License?

The cost of obtaining a landfill license depends on the size and age of the landfill, the amount of competent, technical data that has already been collected regarding the landfill's effect on the immediate soils and water environment, and the particular engineering challenges that present themselves regarding the proposed design of the landfill.

The current application fee for an initial landfill license is $9225. The relicensing fee is $6862. All technical data must be prepared by "individuals whose training, experience and professional certification is appropriate to accomplish the specific tasks with accuracy and proficiency"; that is, the bulk of the application must be prepared by certified professional engineers, such as geologists or hydrogeologists.

In the case of existing landfills which are seeking an initial license, the costs associated with assimilating the necessary technical data can be prohibitive. At issue is whether the existing facility is already polluting the waters of the state or neighboring properties. For new landfills, the pollution issue is addressed in the design of the facility, and the various expenses associated with the ground borings and monitoring wells that are required as part of the application process can be ultimately subsumed in the overall cost of facility construction. For existing facilities, however, the municipality faces a significant financial risk in the effort to satisfy the no-pollution criteria. The DEP staff is going to seek data regarding the polluting characteristics of the lump of solid waste and ash that is already buried in the landfill, and the information gained from the ground borings and monitoring wells could very well sink the initial or subsequent applications. Even for the smallest landfills, the regulations require the installation of at least five monitoring wells, at an installation cost that can be as high as $2000 per well.

Where there is no hard data regarding an existing landfill's pollutive effect on the immediate environment, there is raised an interesting burden-of-proof issue. While the licensing regulations do not expressly require a municipality to prove its existing landfill is not polluting ground or surface waters, the regulations do require proposed facilities to install monitoring wells, and provide at a minimum some baseline water quality data in submission of a licensing application. Thereafter, the water in the monitoring wells must be analyzed four times a year in an effort to detect deviations from the baseline water quality. According to a DEP staff person in the licensing division, it is possible (although not highly recommended) for an existing municipal landfill to get a two-year conditional license when there is no hard data regarding the landfill's pollutive characteristics (and there is no other factor which automatically prohibits the issuance of a license). For just the term of the two-year conditional license, the water quality monitoring costs can be very expensive (up to $4000 per year per well), and the information gathered during the two-year period can scuttle any future licensing. According to some DEP staffers, the two-year conditional license can be a very expensive way to "buy time."

Considering only the initial application fee, the required installation of the monitoring wells, and the first year's evaluation of the ambient water quality, the costs of applying for a landfill license begins at $40,000, and that is not even considering the costs of hiring a professional engineer to prepare the application. According to Eric Root at RWS, the cost of securing a permit to establish a landfill runs from $600,000 to $1.2 million, and the construction costs for the simplest facility would run about $250,000 per acre. Given the conspicuous regulatory obstacles which are designed to prevent the licensing of existing unsecured landfills, the municipality faces a decided risk of losing the entire cost of license application.

Option of Developing A New Landfill

According to DEP staffers, it is generally the case that only municipalities or municipal districts with populations of approximately 20,000 or more can afford the licensing, engineering, construction, operating, monitoring and closure costs associated with developing a new, secure landfill. Gary Wood, MMA's director of State & Federal Relations, has prepared a memorandum for distribution which covers the different legal vehicles towns can use to begin a cooperative, multi-municipal waste disposal effort.

Alternative Waste -Disposal/Transfer Options

If the regulatory effort to obtain a license appears to burdensome, or the financial risk too great, the municipality should immediately consider its options for alternative disposal or transfer systems. The three most viable options at this time would appear to be: (1) the development of a transfer station; (2) establishing a house-to-house solid waste pick-up and delivery system; or (3) working to establish a regional landfill through the development of a multi-municipal solid waste disposal district, in accordance with the criteria established in 38 MRSA 1701 et seq. (the Maine Refuse Disposal District Enabling Act).

It is beyond the scope of this article to comprehensively detail all the issues and options which could be considered before deciding which of these three alternative disposal system is the most attractive. For example, house-to-house pick-up, particularly when contracted out to a commercial hauler, would appear to be an extremely convenient alternative for a municipality, but should be weighed against the long-term costs and a possible reduction in the municipality's control of the solid waste budget. The town meeting may resist house-to-house pick-up as being too urban a phenomenon or otherwise express a preference for a transfer station over house-to-house pick-up, if only to preserve the social experience of going to the dump on dump day. On the other hand, house-to-house pick-up may be an excellent one- or two-year option, as the municipality works within its region to establish a regional waste disposal facility.

The establishment of a regional waste disposal facility will necessarily involve close coordination with the Maine Waste Management Agency. Recently enacted legislation (LD 1144) clarifies the responsibilities of the Waste Management Agency to include the siting of municipal solid waste disposal facilities. The Legislature clarified this Agency responsibility apparently with full knowledge that the Agency presently lacks adequate resources to perform this task in the near future. Because the Agency is presently very busy with the task of siting special waste facilities (i.e., a landfill for incinerator ash and other types of special waste), and because the Agency lacks adequate resources to launch a municipal solid waste disposal facility siting project at this time, the most assistance municipalities should expect from the Agency with regard to siting assistance in the forseeable future is advice, cooperation and guidance with regard to the municipal development of regional facilities. It is important to understand that the Agency's obligation to site is supposed to enhance rather than interfere with home-grown regional efforts to create a landfill. Municipalities interested in such a project should continue their efforts and coordinate them with the Agency.

Transfer Stations. Compared to the regulatory effort necessary to secure a landfill license, the development of a transfer station is a walk in the park, particularly for municipalities with populations less than 5000. Chapter 402 of the DEP's regulations allow for a "permit by rule" process for small town transfer stations whereby the municipality merely has to notify DEP's licensing division of intent to develop the transfer station at least 60 days prior to construction, provide similar notification to all abutters, notify the general public by means of a published notice in the local newspaper, provide to the DEP a site plan of the facility and an operating manual, and abide by some straightforward siting and operational standards listed in the regulation. The licensing requirements for a transfer station for municipalities with populations over 5000 are slightly more intense, but not prohibitively so.

There are, however, two transfer station siting standards that typically frustrate municipal efforts to quickly and efficiently switch from a landfill to transfer station operation. First, a transfer station may not be located within 100 feet of the solid waste boundary of an active or closed landfill unless a variance is granted. Second, as of January 1, 1992 by virtue of recently enacted legislation (LD 15), any new transfer station must be set back at least 250 from any "permanent structure," and also at least 250 from any property boundary unless the DEP finds the abutting property to be a "compatible use" with the municipal transfer station or the abutters agree to waive the setback." DEP has stated that it is going to try to develop compatibility standards that will provide maximum flexibility, especially with regard to the use of old landfill sites. Even with flexible regulating, however, the effect of these two siting standards is that in many cases the municipality is unable to site a transfer station on the municipal lot where there was formerly a landfill, and the new transfer station lot that must be obtained by the municipality has to be at least 10 acres in size. Just as the siting of large waste disposal facilities is proving to be a difficult political task for the state to accomplish, the siting of a new municipal waste disposal facility can prove to be something of a political challenge on the local level.

In conjunction with the development of a transfer station, the municipality must investigate and ultimately coordinate with the licensed disposal facility and the waste hauler to that facility. It is not within the scope of this article to go into details regarding this component of the process.

Generally, in addition to the municipal facilities, such as landfills in Brunswick, Augusta, and Tri-Community Landfill in Caribou, there are seven major waste disposal operations in Maine. There are the four operating incineration facilities: Maine Energy Recovery Company in Biddeford, Penobscot Energy Recovery Company in Orrington, Regional Waste Systems in Gorham, and (soon to be closed) Northern Aroostook Regional Incinerator in Frenchville. There is one developing incineration facility, the Mid Maine Waste Action Corporation in Auburn. There are two major commercial landfills, Consolidated Waste Systems in Norridgewock, and the Tom Sawyer facility in Hampden. In addition to these Maine facilities, more and more municipal solid waste is being transferred out of state. For further information pertaining to the capacity and costs of licensed waste disposal facilities, municipal officials should contact neighboring municipalities, the waste facilities themselves, or Maine's Waste Management Agency at 1-800-662-4545. Also, MMA is keeping an updated list of the available disposal facilities and their tipping fees. For a copy of that list, contact the secretary at MMA's State & Federal Relations department.

Landfill Closure Responsibilities

By DEP regulation (Chapter 401, Section 7), a municipality must submit a landfill closure plan at least one year prior to the start of any closing operations or at the time of application for a license for any new waste disposal system, whichever is first. Furthermore, the regulations require that the closure of all municipal landfills be completed no later than one year from the last date the landfill received solid waste. Theoretically, therefore, closure plans should have been filed by January 1, 1991 for all unlicensed landfills, unless the municipality intends to apply for a license. It is also theoretically the case that every unlicensed municipal landfill must be capped according to DEP standards no later than January 1, 1993, which will be one year after mandatory licensing.

In a letter issued by the DEP in January of this year, in anticipation of the January 1, 1992 deadline, it was represented to all grandfathered municipalities that the filing of a closure application by October, 1991 would amount to satisfactory compliance with the regulatory schedule. Primarily because the municipal options regarding solid waste disposal systems have been, and continue to be, both unclear and expensive, many municipalities have not been in a position to promise to close out their landfills a year in advance of the January 1, 1992 deadline. To add to this uncertainty, the DEP is currently drafting some interim closure criteria, a copy of which is scheduled to be issued to all affected municipalities within the month, and many municipalities are waiting to review these forthcoming criteria before they fully commit to closure. These newly issued criteria will act to establish three separate landfill categories, to which there will be applied three separate levels of closure standards.

Generally, the present landfill closure responsibilities for attenuation landfills are as follows:

- The submission of a closure plan, the development of which necessarily involves extensive engineering, hydrogeologic testing, the installation of monitoring wells, and other technical data;

- The placement of an engineered, two-foot thick cap over the entire landfill site, in two layers, 18" thick and 6" thick, respectively, of soils of specified quality;

- Establishing a good catch of vegetation on that cap;

- Certain notifications to the public of the closure-schedule and the alternative waste disposal system;

- Recording with the Registry of Deeds a permanent deed amendment recording the existence of the landfill facility on that lot; and

- Extensive post-closure monitoring, testing, evaluation and maintenance responsibilities, which closely resemble the ongoing monitoring and maintenance responsibilities that are required for operating landfills.

According to a DEP staff person, a rule-of-thumb cost estimate for closing costs, under present regulation, is $100,000 per acre.

Under the soon-to-be-released evaluative criteria being developed by the DEP, closure costs may be cut by as much as 50% for some municipalities. Those criteria, as presently drafted, would relax the requirement for pre-closure hydrogeological engineering (including the pre-closure installation of monitoring wells) for municipal landfills which are located at least 1000 feet away from any drinking water source, are smaller than 5 acres and serve less than 5000 people, and for which there is no evidence or history of use which suggests there to be a pollution problem. Similarly situated municipal landfills which are less than 2 acres and which serve fewer than 2000 people could be closed even more cost-effectively under the requirements of the forthcoming DEP criteria.

One of the reasons why the DEP is looking at ways to amend its regulations to allow for more efficient landfill closing can be found in its statutory obligation, "subject to the availability of funding," to issue grants to eligible municipalities for 75% of the cost of closure and 90% of the cost of remediation (38 MRSA 1310-F). To date, approximately $19 million in bonds have been issued for the purpose of landfill closure and remediation; $4.5 million for evaluation costs, and $14.5 million for implementation (i.e., construction). To date, over $4 million has been spent on the closure of municipal landfills. With the $14 million left to expend (and considering that Maine voters will be asked in November to approve a $5 million bond issue for this purpose), it would appear at first glance that municipalities do not need to be concerned about the availability of grant money to effect landfill closure. According to DEP staff, however, the bulk of the first $19 million made available for this purpose will be easily gobbled up by the first 30 or 40 landfill closing projects undertaken. With the looming January 1, 1992 license-or-close deadline, the few million dollars remaining, even with the successful passage of the November bond package, will not be nearly enough to close out hundreds of municipal landfills.

As noted above, the division of the DEP to contact for advice and guidance with regard to closure issues is the Division of Site Investigation and Remediation under the Bureau of Hazardous Materials and Solid Waste Control, at 289-2651.

How Can The Municipality Reduce Its Exposure to DEP Enforcement Action?

Given the fact that the regulatory deadline to license or close all municipal landfills has been on the books for two years, and given the fact that the Legislature has had an opportunity to effectively extend that deadline and has refused, the DEP is now unwilling to suggest or imply that under certain circumstances enforcement actions will not be taken against municipalities which are operating unlicensed facilities after the first of the year. On the other hand, DEP enforcement activity can take many forms, ranging from:

- not-so-nasty letters noting and strongly encouraging the municipal efforts toward compliance, which can lead to ...

- nasty letters strongly advising compliance, which can lead to ...

- consent decrees outlining the municipality's course of action and stipulating penalties for noncompliance, which can lead to . . .

- consent decrees which include all of the above plus immediate penalties, which can lead to ...

- a legal action brought against the municipality by the DEP courtesy of the Attorney General's Office.

While the DEP is unwilling to guarantee any safe harbor for municipalities which might find themselves in violation of solid waste law or regulation after the first of the year, Paula Clark, the director of the Division of Solid Waste Facility Regulation, is apparently working with her staff to develop some guidelines for DEP staff to follow to ensure that enforcement is reasonably applied. In its preparation of this article, MMA's efforts to identify the specifics in those guidelines were unsuccessful. After discussion with some DEP staffers, however, it is apparent that the agency may factor some of the following considerations into its determination of the type or intensity of enforcement action to take against a municipality in noncompliance. With regard to the landfill itself, the DEP will probably take into account the degree of environmental threat posed by the facility (for example, the facility's ranking on the DEP's landfill list, or documented pollution or history-of-use factors), and the reasonable availability of alternative disposal options. With regard to the municipal legislative body, the DEP may consider the demonstrated progress made by the municipality up to now to achieve compliance as well as the apparent municipal willingness to achieve compliance as demonstrated by forward-looking planning and budgeting decisions. With regard to the applicable municipal officials, the DEP may recognize the degree to which the municipal officials have facilitated the decision-making process by providing necessary information so that the electorate is fully informed. Of some influence, also, will be the extent to which the municipal officials are willing to establish a constructive and cooperative relationship with the state's regulatory agency.

Conclusion

Municipalities which are presently operating grandfathered unlicensed landfills must now advance their position in some demonstrable way. The Legislature had the opportunity with LD 805 to defer enforcement action against noncompliant municipalities until July of 1993, but decided to stand by the January 1, 1992 license-or-close deadline. It is a very difficult and expensive task to obtain a DEP license for an old, unsecured landfill, and few small towns in Maine will have the resources or technical capacities to successfully obtain such a license. If licensing is not environmentally or financially feasible, the municipality must begin close-out preparation, and on that front the DEP's forthcoming clarification of closure regulation may offer some closure-cost relief. Those municipalities should also immediately begin exploring, on their own or as multi-municipal districts, the waste disposal or transfer alternatives that are available. The DEP has signaled a willingness to "reasonably" enforce the license-or-close deadline, and the Division of Solid Waste Facilities Regulation is apparently working on establishing some guidelines which will act to tailor enforcement actions to the presence or absence of municipal good faith.