Code of Maine Rules
06 - DEPARTMENT OF ENVIRONMENTAL PROTECTION
096 - DEPARTMENT OF ENVIRONMENTAL PROTECTION - GENERAL
Chapter 400 - GENERAL PROVISIONS
Section 096-400-5 - Public Benefit Determination

Universal Citation: 06 ME Code Rules ยง 096-400-5

Current through 2024-13, March 27, 2024

Pursuant to the provisions of 38 M. R. S. A. §1310- AA, proposals for new or expanded solid waste disposal facilities, or for the acceptance by publicly owned solid waste landfills of waste that is not waste generated within the State, must be found by the Commissioner to provide a substantial public benefit.

A. Applicability.Except as otherwise provided below, the requirements of this section apply to:

(1) Proposed new or expanded solid waste disposal facilities, other than State-owned facilities;

(2) State-owned solid waste disposal facilities, as further provided in section 5(C) below; and

(3) Proposed acceptance by publicly owned solid waste landfills of waste that is not waste generated within the State, as further provided in Section 5(D) below.

B. Rebuttable Presumption of Public Benefit. For the following solid waste disposal facilities, substantial public benefit is determined at the time of facility licensing employing a rebuttable presumption of public benefit:

(1) Solid waste disposal facilities less than 6 acres in size that accept only inert fill, construction and demolition debris, debris from land clearing and wood wastes; and

(2) Solid waste disposal facilities used exclusively for the disposal of waste generated by the owner of the facility except that the facility may accept, on a nonprofit basis, waste not generated by the owner provided that the amount so accepted does not exceed 15% of all solid waste accepted on an annual basis.

C. State-owned Solid Waste Disposal Facilities. The following provisions apply to solid waste disposal facilities owned by the State:

(1) Acquired by the State After January 1, 2007. The department may not process or act upon any application for a new, modified or amended solid waste license for a solid waste disposal facility acquired by the State after January 1, 2007, including an application to expand, until the facility has applied for and received a public benefit determination.

(2) Acquired by the State Before January 1, 2007. A solid waste disposal facility owned by the State before January 1, 2007 is deemed to hold a public benefit determination for the licensed disposal capacity at the facility. The department may require the holder of a public benefit determination under this paragraph to submit an application for a modified public benefit determination if the department finds that a material change in the underlying facts or circumstances has occurred or is proposed, including, but not limited to, a change in the disposal capacity or a change of the owner or operator of the facility. The department may not process or act upon any application to expand a solid waste disposal facility owned by the State before January 1, 2007 until the facility has applied for and received a public benefit determination.

Acceptance by Publicly Owned Solid Waste Landfills of Waste that is Not Waste Generated Within the State. A facility is subject to this section if it is a solid waste landfill that is not a commercial solid waste disposal facility pursuant to 38 M. R. S. §1303- C(6)(A-2, B-2 or C-2). For purposes of this section and pursuant to 38 M. R. S. §1310- AA, "waste generated within the State" has the same meaning as it is defined in section 1 (FFff-1) of this rule.

D. Determinations of Public Benefit Required. A positive determination of substantial public benefit must be made by the Commissioner for any solid waste disposal facility subject to the provisions of this section prior to:

(1) Submission of an application for a license for a new or expanded solid waste disposal facility, including State-owned solid waste disposal facilities;

(2) Acceptance by a publicly owned solid waste landfill of waste that is not waste generated within the State; or

(3) Submission of an application for a new, expanded, modified or amended license for a solid waste disposal facility acquired by the State after January 1, 2007 if that facility has not previously applied for and received a determination of public benefit.

The Department will not accept an application for processing under the provisions of 38 M. R. S. A. §1310-N for a solid waste disposal facility subject to the requirements of this section unless and until the Commissioner makes a positive determination of substantial public benefit.

E. Standards for public benefit determination. The Commissioner shall find that a proposed solid waste disposal facility or expansion that is subject to the provisions of this section provides a substantial public benefit if it meets the following standards:

(1) The facility meets immediate, short-term, or long-term capacity needs of the State. For purposes of this paragraph, "immediate" means within the next 3 years, "short-term" means within the next 5 years, and "long-term" means within the next 10 years. When evaluating whether a proposed facility meets the capacity needs of the State, the commissioner shall consider relevant local and regional needs as appropriate and the regional nature of the development and use of disposal capacity due to transportation distances and other factors;

(2) Except for expansion of a commercial solid waste disposal facility that accepts only special waste for landfilling, the facility is consistent with the State Waste Management and Recycling Plan and promotes the Solid Waste Management Hierarchy as set out in 38 M. R. S. A. §2101;

(3) The facility is not inconsistent with local, regional, or state waste collection, storage, transportation, processing, or disposal; and

(4) For proposals to accept, by a publicly owned solid waste landfill, waste that is not waste generated within the State, the proposal facilitates the operation of a solid waste disposal facility and the operation of that solid waste disposal facility would be precluded or significantly impaired if the waste is not accepted.

(5) The facility is not inconsistent with ensuring environmental justice for the community in which the facility is proposed.

F. Public Benefit Determination Process

(1) Application procedure . Within five days prior to submitting an application for a determination of public benefit, the applicant shall give public notice of intent to file the application. This public notice shall be mailed by certified mail to the facility abutters and to the municipal office of the municipality(ies) in which the facility is located or is proposed to be located. The notice must also be published once in a newspaper circulated in the area where the project is located.

The application for a determination of public benefit shall be made on a form provided by the Department. It shall include a demonstration that the facility meets the standards in paragraph E above and a copy of the public notice.

At the time of filing with the Department, a copy of the application, its supporting documents and all amendments to an application must be filed by the applicant with the appropriate town clerk, city clerk, or, if the disposal facility is in an unorganized area, with the county commissioners.

In making a determination of substantial public benefit, the Commissioner shall consider the State Waste Management and Recycling Plan, the solid waste management hierarchy as set out in 38 M. R. S. §2101, written information in support of the application, all written comments received concerning the application, and any other written information the Commissioner considers relevant.

The Commissioner shall accept written public comment during the course of processing the application. The Commissioner shall hold a public meeting in the vicinity of the proposed facility or the publicly owned landfill to take public comments, and shall consider those comments in making the determination.

G. Decisions. The Commissioner shall issue a decision within 60 days of receipt of a public benefit determination application. The Commissioner's decision on a public benefit determination may be appealed to the board, but the board is not authorized to assume jurisdiction of a decision to be made under this section. The Commissioner's decision is not subject to review by the department or the board as part of the facility licensing process.

H. Modifications. Public benefit determinations may be revised by the department if the department finds that a material change in the underlying facts or circumstances upon which a public benefit determination was based has occurred or is proposed, including, but not limited to a change related to disposal capacity or a change of the owner or operator of a facility. The department may require the holder of a public benefit determination to submit an application for modification of that determination if the department finds that a change in the underlying facts or circumstances has occurred or is proposed.

When making a decision on an application for a determination of public benefit, the commissioner:

(1) May issue a full or partial approval of an application, with or without conditions; and

(2) For an application related to a state-owned solid waste disposal facility, shall conduct a review that is in accordance with the provisions of this section and is independent of any other contract or agreement between the State and the facility operator or any other party concerning the operation or development of the facility.

H. Modifications. Public benefit determinations may be revised by the department if the department finds that a material change in the underlying facts or circumstances upon which a public benefit determination was based has occurred or is proposed, including, but not limited to a change related to disposal capacity or a change of the owner or operator of a facility. The department may require the holder of a public benefit determination to submit an application for modification of that determination if the department finds that a change in the underlying facts or circumstances has occurred or is proposed.

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