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 2024-13, March 27, 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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