Senator Saviello, Representative Tucker, and members of the Environment and Natural Resources Committee:
My name is Nick Bennett. I am the Staff Scientist for the Natural Resources Council of Maine (NRCM), and I am testifying in opposition to LD 1797. LD 1797 would weaken protections for the environment and public health in the Department of Environmental Protection’s (DEP) Chapter 418 rules, which govern the “beneficial” use of contaminated wastes in industrial and construction applications. Maine is already an outlier compared to our neighboring states in terms of its allowed use of contaminated materials as both fuel and construction material. LD 1797 would make it more of an outlier.
At the end of this testimony, I have attached (as Attachment J) a list of my specific comments on this rule by section. This morning, however, I would like to focus on the two most significant areas in which these rules would weaken protections: expanding the use of emulsified asphalt-encapsulated contaminated soil and increasing the allowable levels of construction waste containing toxic heavy metals that biomass plants and industrial facilities can burn.
First, I will discuss the issues with emulsified asphalt-contaminated soil (relevant provisions are in Sections 3(S), 5, and 6(B) of the proposed rule). DEP has long allowed the use of emulsified asphalt encapsulation, a type of waste treatment, to turn soil contaminated with oil into construction material. I do not know whether this process is safe, but some other states do allow this. The Committee should request relevant technical justification for this practice from DEP.
However, these rules propose to expand the use of asphalt encapsulation to treat soils contaminated with other materials, potentially including heavy metals, PCBs and asbestos. DEP has not provided me with any technical documentation that expanding the use of this process is safe as of my drafting this testimony, although I have repeatedly requested it, including through a Freedom of Access Act (FOAA) request I filed last October. I do, understand, however, that DEP will provide me with more technical documents on emulsified asphalt encapsulation in the near future. These are documents the Committee may also wish to view.
In the meantime, I have attached relevant documents I did receive last week, through my October FOAA request, to this testimony. I will discuss their significance regarding the efficacy of emulsified asphalt encapsulation of soil contaminated with compounds other than oil today.
These rules now before you propose to allow emulsified asphalt encapsulation for a much greater variety of contaminated soils, including soils potentially containing metals and PCBs. I have attached meeting notes from former DEP staffer Leslie Anderson from a meeting with Aggregate Recycling Corporation (ARC) in February 2016 (Attachment A). These notes state that ARC mentions “urban soils” it wants to process with emulsified asphalt encapsulation and use for construction material in Maine, such as soils from the “Big Dig” in Boston. Soils from heavy industrial sites such as Boston Harbor are likely to contain lead and PCBs, as these meeting notes make clear. The notes also make clear that DEP staff had concerns about expanding the use of asphalt encapsulation to treat these “urban soils.”
The next attachment to my testimony is a March 2017 email from DEP employee Eric Hamlin (Attachment B). In it, he states that New York State allows asphalt emulsion “only as a treatment for petroleum contamination.” He adds that his discussion with a staff person at the New York State Department of Environmental Conservation about asphalt encapsulation for metals “confirms that they are not counting on the asphalt to bind them long-term.” He further adds that, “it looks like our approach is still the regional outlier.”
I have next attached a March 2017 email from DEP employee Tom Graham on asphalt encapsulation in a number of states: New Jersey, Texas, Massachusetts, Oregon, New Hampshire, Missouri, and New York (Attachment C). Although it is clear from this email that Mr. Graham does not completely grasp all of the relevant regulations in these states, it is also clear that he did not find that any of them allow what DEP is proposing to allow in these rules: the use of asphalt encapsulation for treating soils potentially contaminated with metals, PCBs or other toxic substances and then allowing these soils to be used as construction fill.
Why is DEP proposing these rule changes?
The answer is clear from reading the next two attachments to my testimony: a letter from ARC (Attachment D) and a letter from CPRC Group (Attachment E). Both of these letters illustrate the pressure that DEP is under from waste processing companies that want to weaken Chapter 418 to allow greater use of asphalt-encapsulated contaminated soils.
I have also attached the list of stakeholders DEP invited to a meeting prior to the draft changes to Chapter 418 going public (Attachment F). This list is heavily weighted towards entities with a likely interest in weakening Chapter 418 with no obvious counterbalance.
We urge the Committee to vote against the proposed changes to Chapter 418 that would allow increased use of emulsified asphalt-encapsulated contaminated soil beyond soil contaminated with oil. DEP has provided no technical analysis as part of the rulemaking record for these rules that assures the safety of this expanded use and no evidence that any other state allows similar uses.
NRCM also strongly opposes weakening the standards that apply to pressure-treated wood and “fines” in construction and demolition debris-derived (CDD) fuel for use at biomass plants and in industrial boilers (relevant provisions are in section 8(F)(3)(c) and (d) of the proposed rule.)
Specifically, we oppose the proposed increase in the allowable amount of fines by 50 percent and the allowable amount of chromated copper arsenate (CCA ) treated wood by 33 percent for CDD fuel. In 2006, the Northeast States for Coordinated Air Use Management issued a report entitled, “Emissions from Burning Wood Fuels Derived from Construction and Demolition Debris.” One of its key conclusions about burning CDD fuel was:
The critical element in minimizing air emissions, especially air toxics, is the elimination of CCA- and penta-treated wood from the fuel and minimizing C&D fines.
We do not support DEP going against this document, which DEP staff had a significant role in crafting.
A December 2017 email from DEP employee Cyndi Darling, which I have attached (Attachment G), makes clear that Maine already has lax standards for CDD fuel compared to most New England states. According to this email, Massachusetts, for example, would allow CDD fuel burning only in solid waste incinerators, which have more stringent stack treatment requirements than our biomass boilers. Massachusetts also recommends shipping CDD fuel to Maine and Canada for burning. New Hampshire bans burning CDD, but exempts some incidental combustion at small incinerators. Connecticut only allows burning of CDD fuel from in-state sources and only at gasification plants that qualify for Class 1 renewable energy credits. It seems unclear to Ms. Darling whether any facilities in Connecticut qualify as Class 1.
In this case, DEP again appears to be responding to pressure from a business interest, ReEnergy, to allow weakened CDD fuel standards. According to meeting notes from an April 2016 meeting between ReEnergy and DEP (Attachment H), ReEnergy consistently meets both the metal fines and CCA-treated wood standards, but they send more wood to landfills than they would if the standards were weaker. However, this is exactly the way these standards are supposed to work! NESCAUM’s 2006 report, which again, DEP played a large role in developing, states that metal fines and CCA-treated wood should go to landfill because they are too dangerous to burn! Volatilized toxic metals and organic compounds like dioxin coming out of smokestacks are not only dangerous to people who breathe them. Eventually, these compounds settle out through rain and atmospheric deposition, contaminating soil, water, plants, fish and wildlife. Humans may eat these plants, fish and wildlife, which may bioaccumulate these toxic materials by very large factors.
It is noteworthy that Sappi, which also burns construction debris in its boilers at times, opposed the weakening of standards for fines and CAA-treated wood in DEP’s proposed rules. In their testimony to the BEP, which I have attached (Attachment I), they stated:
The fuel quality standards for CDD wood have been modified in proposed section 8(F)(3), in particular by increasing the allowable amount of CCA-treated wood for all sources, and #4 minus fines for commercial sources. Sappi is opposed to both these changes – these two standards should remain at <1.5% and <10%, respectively.
For CCA-treated wood, Sappi believes this is the main source of chromium in fly ash. Sappi’s fly ash does not contain sufficient chromium to be considered hazardous waste, but an increase in CCA wood may contribute to an increase in chromium levels. An increase in CCA wood may also contribute to higher arsenic levels in the blended fuel analysis.
Regarding #4 minus fines, Sappi is concerned that an increase in fines could contribute to increased lead concentrations in the blended wood analysis. Regardless of pollutant concentrations, we expect an increase in fines to contribute to higher dust levels in our chip dumping and fuel storage facilities, with associated higher dust exposures for our employees. Sappi respectfully requests that both these standards remain at the same level as in the current rules.
NRCM agrees with Sappi and urges the Committee to vote against the proposed changes for metal-containing fines.
Again, I have attached detailed comments by section to this testimony as Attachment J.
I urge the Committee to vote against LD 1797. Thank you for the opportunity to testify. I would be happy to answer any questions.
 ““Fines” are defined as material passing through a #4 sieve with a 0.187 inch (4.75 mm) opening”, according to: Northeast States for Coordinated Air Use Management. 2006. Emissions from Burning Wood Fuels Derived from Construction and Demolition Debris. P. vii. According to this same report (P. 2-3), fines contain the greatest amount of metals and dioxin in CDD fuel. Accessed at http://www.nescaum.org/documents/2006-0710-emiss_from_burning_wood_fuels_derived_from_c-d_report.pdf/view.
 Ibid., P. 5-1. Accessed at http://www.nescaum.org/documents/2006-0710-emiss_from_burning_wood_fuels_derived_from_c-d_report.pdf/view.