Maine DEP /BEP recommends no slowdown of waste imports into Maine, yet embraces "environmental justice".

After going through all the agency prose emitted by Maine DEP in response to the citizen initiated rulemaking to bar disposal in Maine of waste originating outside of the state of Maine, one can safely summarize it  as

The Board of Environmental Protection is unable to visualize a  Maine that does NOT import  waste from other states for burning and/or permanent storage  in  waste mounds.   The agency advising the Board  rests its case  on the wording of  the bad bill that  passed in a late night classic rush job,  badly amending state waste law so that it  recognizes construction and demolition debris or other "trash" wastes from other states as "Maine waste" once lightly processed inside the border.      

While they don't want to slow the flow of waste coming into Maine, the Board, however envisions adopting  the phrase "environmental justice" into rule and statute, so that the waste flow equally pollutes the air, water and soil of  rich and poor Mainers alike.  

As nothing seems to have come out of DEP   The Board should petition the governor to introduce legislation this session to close the waste importation loophole,  While it is too late for a legislator's  bill in 2021  Governor Mills can and should cause DEP to introduce a department bill  that would end bulk waste imports to Maine at any time.

The basic statement and response to comments

a critical section to read.    included all of DEP‘s responses, and some public  comments.

> Response to Comments 1-10 and 13-18

DEP clinging to the definition passed by the corrupted bill
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> The Department acknowledges the many comments and the extensive information submitted both in support of, and in opposition to, the proposed change to the definition of “waste that is generated within the State” in the rulemaking petition.  Each comment and all information provided was reviewed and carefully considered. The Department, however, agrees with commenters who argued that the petition’s proposed definition of “waste that is generated within the State” is inconsistent with statutory language passed by the 129th Maine Legislature (PL 2019 Chapter 619), and that the Board of Environmental Protection therefore, does not have authority to adopt it in rule.  The Department is proposing that 06-096 C.M.R. Chapter 400 be modified to make its provisions consistent with this legislation.
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> 11.Comment:  The definition of “bypass” should also be revised because the list of situations in which bypass is allowed in the current rule includes “for any other reason”.

A small win: DEP proposes making law and rules consistent about waste stream "bypassing" 
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> Response:  Public Law 2019 Chapter 291 (LD 112) modified the statutory definition of “bypass” as recommended by the Department.  In its recommendation to the Board concerning the pending rulemaking petition, the Department is proposing that the regulatory definition of “bypass" be made consistent with statute.  In so doing, the phrase“for any other reason” would be eliminated

Too hard for Maine!?!

> 12. Commenter: Massachusetts and other states have strengthened their rules to protect the environment and prohibit disposal of certain wastes (e.g. construction and demolition debris, organics); Maine has not

> DEP Response:  Some states have put disposal bans in place for certain wastes (e.g.construction/demolition debris and organics such as food scrap), a principal purpose of which is to increase the recycling rates of those wastes by eliminating the disposal option for handling.  

Although the Department has discussed the imposition of additional waste bans periodically, it has continued to conclude that for some of these waste streams the recycling infrastructure in Maine at this point is simply not sufficient statewide to preclude disposal as a handling option

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Sticking with the definition passed by the corrupted bill
> 19. Comment:   Commenters support a modification to the proposed rule that would remove residues from incineration as waste not generated within the State, regardless of the source of the waste combusted.

Adding the phrase “ Environmental Justice”  but that’s about it
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> Response: Public Law 2019 Chapter 619 (LD 401) modified the statutory definition of “waste generated within the State” to, in part, include: “Residue generated by an incineration facility or a recycling facility that is located within the State, regardless of whether the waste incinerated or processed by that facility was initially generated within the State or outside the State”. In its recommendation to the Board concerning the pending rulemaking petition, the Department is proposing that the regulatory definition of “waste generated within the State" be made consistent with statute.
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> ENVIRONMENTAL JUSTICE AND EQUAL PROTECTION
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> DEP Response: Section 5.E.3 of the current rule is constructed similarly to the proposed language of Section 5.E.5 and states: The facility is not inconsistent with local, regional, or state waste collection, storage, transportation, processing, or disposal”.  This construction suggests a shift in the nature of the evidence necessary to make a finding with respect to the standard, allowing a positive finding unless evidence is submitted that 289-12-demonstrates an inconsistency. This approach seems appropriate in view of the issues addressed by these 2 standards. This change was not made in the Department's recommended draft."
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DEP Response to Comments 20-23 and 25-28:

> The Department acknowledges the many comments submitted both in support of, and in opposition to, the proposed inclusion of “environmental justice” and “equal protection” as standards in the Public Benefit determination process for new/expanded waste disposal facilities  Each comment was reviewed and carefully considered. "

The Department proposes to modify 06-096 C.M.R. Chapter 400 to include “environmental justice” as a consideration in the Public Benefit determination process as proposed in the petition.  Although commenters opposing inclusion of the language in the rule argued that it was vague, and the absence of a detailed regulatory standard could lead to inconsistency in its application, the Department agrees with supporters of the proposed language who pointed out that there are a number of broad standards in the existing rule that are not accompanied by detailed regulatory provisions.  "

The Department is not recommending separate inclusion of the concept of “equal protection” as proposed in the petition since it appears to be redundant in view of the broad definition of “environmental justice” that is proposed.  Further, the Department is not recommending inclusion of protection of the “health and welfare of local communities” in the Public Benefit standard since this concept is already clearly incorporated into both statute and rule with respect to solid waste facilities.  06-096 C.M.R. c. 400(3)(D) states, in part, that:  “The Department shall issue a license for a  solid waste facility whenever it finds, based upon substantial evidence in the record, that the solid waste facility will not . . . constitute a hazard to health or welfare . . .” 

The Department does agree with commenters opposing inclusion of the new standard that Maine’s environmental standards are rigorous, must be met by all solid waste facilities, and protect all citizens equally. However, the Department finds that the specific inclusion of “environmental justice” in the rule appropriately highlights the importance of this principle and does not generally increase the regulatory burden of applicants. "

The Department also agrees with those commenting that environmental justice is a concept that should be considered in a broader context than just the Solid Waste Management Rules.  The Department is committed to further evaluating this topic and beginning development of an agency-wide environmental justice policy"