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.
