Maine DEP Proposes Revisions to Site Law Rules

The Maine Department of Environmental Protection (DEP) is proposing revisions to 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.  The proposed 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).”

The proposed 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 new rules would 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 new rules would also specify that cost estimates must be provided for all proposed phases of a project, although financial capacity may be demonstrated prior to construction of each phase. 

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, a few changes to those standards are being proposed.  First, in addition to obtaining a letter from a facility operator (where solid waste from a development will be disposed) regarding a facility’s capacity, 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.

Finally, the new Chapter 380 would repeal and replace existing Chapter 380 “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 proposed rule may provide an attractive alternative for projects that will not begin construction within four years or complete construction within seven years, the standard 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.

A public hearing on these proposed rules is scheduled for October 15, 2015 at 9:00 a.m. at the Augusta Civic Center. The deadline to submit written comments on the proposed rules is 5:00 p.m., October 26, 2015.

If you have questions about the impact of these proposed rules, or would like to discuss the submission of written comments, please contact firm environmental law partner Matt Manahan at  207.791.1189.