Code of Maine Rules
06 - DEPARTMENT OF ENVIRONMENTAL PROTECTION
096 - DEPARTMENT OF ENVIRONMENTAL PROTECTION - GENERAL
Chapter 400 - GENERAL PROVISIONS
Section 096-400-7 - Host Community Agreements and Municipal Intervenor Grants
Universal Citation: 06 ME Code Rules ยง 096-400-7
Current through 2024-38, September 18, 2024
A. Host Community Agreements. This subsection applies to all applications for new or expanded commercial solid waste disposal facility licenses.
(1)
Licensing Requirements . An applicant for a new or expanded
commercial solid waste disposal facility license shall demonstrate one of the
following:
(a) The applicant is complying
with municipal ordinances requiring host community benefits;
(b) The applicant has negotiated in good
faith, including mediation and binding arbitration if appropriate, with the
municipality(ies) in which the facility is proposed to be located to formulate
a host community agreement;
(c) The
applicant has developed and will implement a host community agreement;
or
(d) The applicant has
renegotiated, if appropriate, the terms of an existing host community
agreement.
(2)
Provisions of host community agreements . Based upon the nature,
size, and projected impacts of the proposed facility, host community agreements
must, when applicable, include provisions regarding the following:
(a) Improvements, maintenance, and repair of
local roads directly affected by traffic to and from the facility and of other
infrastructure elements in the community directly affected by the
facility;
(b) Development and
maintenance of adequate local emergency response capacity to accommodate the
facility;
(c) Financial support for
personnel or other means to provide technical assistance to the municipality
during the license period in interpreting the data and to advise the
municipality on other technical issues concerning the facility; and
(d) Other issues determined on a
case-specific basis by the applicant and the municipality to be appropriate
given the nature of the facility.
(3)
Expenditure of funds for direct
technical support . Financial support allocated under provision (2)(c)
above may only be expended by the host community for direct technical support
necessary for the conduct of municipal planning and decision making. This
includes, but is not limited to, costs associated with services provided by
hydrogeologists, geotechnical engineers, environmental engineers, and other
environmental professionals as appropriate.
B. Municipal Intervenor Grants. This subsection establishes procedures for the use of funds by a municipality that has requested intervenor status, pursuant to 38 M. R. S. A. §1310- S, in the Department's licensing proceedings for a new or expanded solid waste disposal facility proposed to be located in that municipality. A municipal intervenor may request financial assistance, consistent with the provisions of this subsection, to pay for direct expenses associated with its substantive participation in the Department's application review process.
(1)
Applicability . This
subsection applies to all new and expanded solid waste disposal facilities,
except for the following:
(a) A facility that
is permitted by rule under any chapter of these rules; or
(b) Where the applicant is a municipality
that, either singly or in cooperation with other parties, applies to locate a
facility within its borders.
(2)
Notification of Potential Municipal
Intervenors . In addition to the requirements of 06-096 CMR 2, an
applicant for a new or expanded solid waste disposal facility must provide the
following:
(a) Preliminary notice. At least
sixty days prior to submitting an application with the Department for a solid
waste disposal facility license, the applicant shall notify by certified mail
the Department and the municipal officers of the municipality in which the
facility site is to be located or, in the unorganized territories, the county
commissioners with jurisdiction over the proposed facility site; and
(b) This preliminary notice must include a
description of the right of the municipal officers to apply for municipal
intervenor status, their right to receive grants not exceeding $50,000 to
support certain activities to intervene before the Department, and the
requirement that they must request intervenor status within 60 days of this
notification or be deemed to have waived the right to receive municipal
intervenor grants.
(3)
Municipal Intervenor Status . The municipal officers of the
municipality in which the proposed solid waste facility is to be located, or
their designees, have automatic intervenor status if they request it within 60
days of being notified under subsection 7(B)(2) above. Upon the Department's
receipt of the request, the intervenors have all rights and responsibilities
commensurate with this status.
The host municipality loses its right to the municipal intervenor grant if it fails to notify the Department within 60 days after being notified by the applicant under subsection 7(B)(2) above.
(4)
Fees Paid by the
Applicant . In addition to the licensing and processing fees required
under 38 M. R. S. A. §§352 and 353, applicants for a solid waste
disposal facility shall pay a $50,000 fee at the time of filing. Applications
are not complete for processing until this fee has been submitted to the
Department, to be deposited in the Maine Environmental Protection Fund. These
funds shall be disbursed by the Department to a municipal intervenor or its
designees for documented direct expenses associated with its substantive
participation in the Department's application review process.
The Department may require the applicant to pay the Department an additional fee not to exceed $50,000 for an application for the expansion of a commercial solid waste disposal facility that accepts special waste for landfilling when the municipal intervenor demonstrates to the Department that the size, nature, location, geological setting or other relevant factors warrant additional expenditures for technical assistance.
(5)
Grant
Procedures . The following procedures are established for the issuance
of grants to municipal intervenors in solid waste disposal facility license
proceedings before the Department.
(a)
Grant Documents . The Department shall draft a grant agreement as
soon as possible after a qualified municipality has requested intervenor
status. All grant agreements must be made with the municipal intervenor. This
agreement will formalize the type of services to be used; the frequency and
conditions of billing, grant payment or reimbursement; the required
documentation of costs and work output; and audit and grant repayment
conditions.
(b)
Eligible
Costs . The major consideration for evaluating whether an expense is
eligible for grant funds is whether it is a direct cost that contributes to the
municipal intervenor's substantive participation in the Department's
application review process. These expenses may include:
(i) Payment or retainer for expert witnesses
or hiring qualified professionals in environmentally-related fields and other
fields including, but not limited to, engineering, geology, public health,
finance or law;
(ii) The cost of
using professional services in these fields to evaluate the application, to
determine whether to oppose or support it, and to represent or intervene on
behalf of the municipality;
(iii)
The cost of examining all aspects of the project or license application which
must be considered by the Department in determining whether the proposed
project may be licensed or not; and
(iv) The direct costs of the municipal
officers and their consultants meeting with Department staff, attending
hearings, and participating in Department meetings relating to the application
or its proceedings.
(c)
Qualified Professionals . For the purposes of this subsection
"qualified professionals" are defined as individuals, companies, and agencies
whose primary occupation is to provide the service or expertise in question. A
qualified professional may include college professors and other individuals
having expertise in the areas or issues being examined. If required by the
State of origin, that individual, company, or agency must have all necessary
certification to provide the professional service in question.
In selecting and acquiring qualified professionals and expert witnesses, the municipal officers, county commissioners, assessors, or designee may not have any direct or indirect pecuniary interest in the selection or acquisition of any of these services. Direct or indirect pecuniary interest in this case means that the public official is an officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity with which the municipality, county government, or quasi-municipal entity contracts, or the public official is directly or indirectly the owner of at least a 10 percent interest in the business or other economic entity.
(d)
Ineligible Costs . Costs not eligible for grant funds are costs
that do not contribute to substantive participation in the Department's
application review process and costs that are required of the applicant under a
substantially similar financial requirement established through local
ordinance. Ineligible expenses include, but are not limited to:
(i) The costs of developing or amending local
ordinances or of processing local applications;
(ii) The costs of developing and submitting
evidence for Board appeal proceedings which is ruled to be not
admissible;
(iii) The costs of
court appeals;
(iv) The costs of
negotiating a host community agreement with the applicant;
(v) The costs of assisting other interested
parties or intervenors with their inquiries or testimony;
(vi) Any costs not documented by the
intervenor to the Department;
(vii)
Any otherwise eligible costs that are recoverable from the applicant under a
substantially similar financial requirement established through local
ordinance; or
(viii) "In kind"
services. "In kind" services include such items as the rent, maintenance, or
overhead of buildings or municipal, county, or plantation operations. In
addition, these services include the salaries of any municipal, county, or
plantation officers or employees who are involved in the intervenor process as
part of their overall duties. The salaries of any officers, members, or
employees of any designees are also not eligible for grant reimbursement or
payment unless that designee is a qualified professional hired by the
municipality, county or plantation to provide specific services.
(e)
Grant Payments .
Upon approval of a grant agreement, grant payments must be made upon the
request of the municipal intervenor unless payment is denied for one of the
reasons in subparagraph (f) below. Grant payments may be made to the municipal
intervenor or, upon written request by the municipality, to its designees.
(f)
Denial of Grant
Payments . A request for payment of grant funds may be denied in whole
or part for the following reasons:
(i) The
work was undertaken: before the municipality requested intervenor status; after
the withdrawal of the solid waste disposal facility application and the
municipality has been notified by the applicant that the application was
withdrawn; or after withdrawal of the intervenor;
(ii) Expenses otherwise eligible that are
incurred by the municipality but the license application is never accepted by
the Department;
(iii) Breach of the
grant agreement;
(iv) False
statements made in any grant submission; or
(v) Expenses are ineligible for payment under
subparagraph (d).
(g)
Records, Audits, and Grant Recovery
(i)
Records . The municipal
intervenor and its designee shall maintain all books, documents, payrolls,
papers, accounting records, work product, travel expenses, retainers, and other
evidence pertaining to costs incurred under the grant agreement. These
materials must be available at their offices at all reasonable times and must
be kept for three years following conclusion of all substantive proceedings
before the Department and all licensing appeal proceedings for inspection by
the Department or any authorized representative of the State of Maine. Copies
must be furnished if requested. The municipal intervenor may avoid the need to
retain all records for a three year period by turning over all original
documents or certified accurate and complete copies of documents to the
Department.
(ii)
Audits . The applicant does not have any right to audit the
municipal intervenor's spending. Upon request, the Department shall provide an
audit report to the applicant after all the application and appeal proceedings
before the Department have concluded.
(iii)
Grant Recovery . The
municipal intervenor must reimburse the Department within 60 days of any
determination by the Department that grant funds have been mistakenly paid for
ineligible work or any other reason enumerated in subparagraph (f) above. The
amount of the reimbursement required shall be the difference between the total
grant funds paid and the intervenor's documented eligible expenses.
(h)
Reduction of Grant
Total . A municipal intervenor has the right to utilize all intervenor
grant money for direct expenses associated with its substantive participation
in the Department's application review process, unless otherwise eligible costs
are required of the solid waste disposal facility applicant under substantially
similar financial requirements through local fee requirements or ordinances.
Any such money required from the applicant for intervention must be subtracted
from the grant total. No other funds raised or committed locally or awarded
through another grant process may be subtracted from the available grant total.
(i)
Return of Unexpended
Grant Funds . Any grant funds not spent by the municipal intervenor for
eligible costs must be returned to the solid waste disposal facility applicant
within 60 days of the Department's final disbursement to the intervenor but in
no case later than 120 days after final Department action.
(j)
Right of Municipal Intervenors to
Gain Entry . On reasonable notice, officers and qualified professionals
hired by a municipal intervenor are permitted entry to a proposed solid waste
disposal facility site to accomplish reasonable inspection and investigation of
the facility site. Access to the facility site must be during normal working
hours and agreed to by the applicant, property owner and the municipal
intervenor.
(i)
Reasonable Inspection
and Investigation . Reasonable inspection and site investigation
includes: visual inspection and measuring, conducting soil analyses with a
handheld soil auger, surveying, photographing, sampling, and other work that
will not alter the physical characteristics of the facility site or interfere
with the applicant's activity on the property.
(ii)
Restrictions . An applicant
or property owner may require the intervenor to wear and use reasonable safety
equipment, remain in the presence of the applicant's representative, only take
samples in the presence of the applicant, split samples with the applicant,
indicate the analysis and testing to be undertaken, and sign an agreement
outlining reasonable conditions of indemnity and liability of each party.
(iii)
Disputes . The
Department shall attempt to resolve disputes regarding reasonable inspection
and site investigations under this section.
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