Maine BEP Provisionally Adopts DEP's Proposed Revisions to Site Law Rules

On October 2, 2015, we reported on the Maine Department of Environmental Protection’s (DEP’s) proposal to revise three chapters of its rules under the Site Location of Development Law (Site Law), the statute under which the DEP regulates projects of state or regional significance that may substantially affect the environment.  That alert can be accessed here.  On December 11, 2015, the Maine Board of Environmental Protection (BEP) provisionally adopted DEP’s proposed revisions, with only a few revisions (from the original proposal) made in response to public comments and to reference “the Board” instead of “the Department” where appropriate. 

The provisionally adopted changes affect Chapter 373 (Financial Capacity), which was last revised in 1979, Chapter 375 (No Adverse Environmental Effect), and a new Chapter 380, which will now be titled “Long-Term Construction Projects (Site Law).”

In response to two separate public comments, DEP amended its proposed changes to Chapter 373 that it ultimately submitted to BEP to clarify that (1) if an applicant provides a corporate annual report or financial statement that is not audited, an explanation must be submitted describing why an audited report is not available; and (2) only the financial information in an annual report, not the entire report, should be audited.

Despite the two changes mentioned above, the substance of the provisionally adopted changes to Chapter 373 remains largely the same as the original proposed changes to that chapter.  The provisionally adopted changes to Chapter 373 (Financial Capacity) largely consist of nomenclature changes and clarification of how an applicant may satisfy the financial capacity and technical ability standard of the Site Law.  For instance, the provisional rules contain examples of how an applicant may demonstrate financial capacity, depending on whether an applicant is self-financing, is a government agency, or is a non-profit corporation.  The provisional rules also specify that cost estimates must be provided for all proposed phases of a project, though financial capacity may be demonstrated prior to construction of each phase. 

Public comments did not lead to any changes to the proposed revisions to Chapter 375, and the provisionally adopted revisions are identical to those contained in DEP’s original proposal.  Chapter 375 (No Adverse Environmental Effect) would be amended to incorporate updated standards that address solid waste, control of odors, and the procurement and maintenance of sufficient healthful water supplies.  While most of these standards are currently contained in Chapter 373, DEP believes that the standards would be more appropriately considered under the broad Chapter 375 “no adverse environmental effect” standard. 

In addition to moving the solid waste standards to Chapter 375, DEP proposed a few changes to those standards.  First, in addition to obtaining a letter from a facility operator (where solid waste from a development will be disposed) regarding that facility’s capacity to accept such waste, an applicant would be required to indicate the method of collection (e.g., private, municipal, or commercial) and the location of the solid waste management facility receiving each waste generated by the development.  Second, the rules would require more specificity than current rules for the management of wastes generated during land clearing.

Once again, DEP made no changes to its proposed revisions to Chapter 380 in response to public comments, and therefore the provisionally adopted changes to Chapter 380 are identical to those contained in DEP’s original proposal.  These changes would repeal and replace existing Chapter 380’s “Planning Permit” rule with a rule describing the requirements associated with long-term construction projects permitted under the Site Law.  The new rule defines a “long-term construction project” as “a project authorized by an individual permit or amendment issued pursuant to the Site Law for construction that either is not anticipated at the time of approval to be substantially completed, or is not substantially completed, within 10 years from the date of approval.”  Examples include large mixed use developments, schools or colleges, and ski resorts.  This provisionally adopted rule may provide an attractive alternative for projects that will not begin construction within four years or complete construction within seven years, the standard expiration terms under Chapter 372.  The new Chapter 380 also would provide a process by which a development issued a permit under the old Chapter 380 may receive approval under the new “Long-Term Construction Projects” rule.

BEP’s adoption of the proposed changes to Chapters 373, 375, and 380 is provisional because these changes are considered major substantive revisions.  Therefore, these proposed changes must now be submitted to the Maine Legislature for approval.

If you have questions about the impact of these provisionally adopted rules, please contact firm environmental law partner Matt Manahan at 207.791.1189.