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Home > Weekly Rule-making Notices > October 12, 2011

October 12, 2011

WEEKLY NOTICES OF STATE RULE-MAKING
Public Input for Proposed and Adopted Rules

Notices are published each Wednesday to alert the public regarding state agency rule-making. You may obtain a copy of any rule by notifying the agency contact person. You may also comment on the rule, and/or attend the public hearing. If no hearing is scheduled, you may request one -- the agency may then schedule a hearing, and must do so if 5 or more persons request it. If you are disabled or need special services to attend a hearing, please notify the agency contact person at least 7 days prior to it. Petitions: you can petition an agency to adopt, amend, or repeal any rule; the agency must provide you with petition forms, and must respond to your petition within 60 days. The agency must enter rule-making if the petition is signed by 150 or more registered voters, and may begin rule-making if there are fewer. You can also petition the Legislature to review a rule; the Executive Director of the Legislative Council (115 State House Station, Augusta, ME 04333, phone 207/287-1615) will provide you with the necessary petition forms. The appropriate legislative committee will review a rule upon receipt of a petition from 100 or more registered voters, or from "...any person who may be directly, substantially and adversely affected by the application of a rule..." (Title 5 Section 11112). World-Wide Web: Copies of the weekly notices and the full texts of adopted rule chapters may be found on the internet at: http://www.maine.gov/sos/cec/rules. There is also a list of rule-making liaisons, who are single points of contact for each agency.


PROPOSALS



AGENCY: 02-392 - Department of Professional and Financial Regulation (P&FR), Office of Professional and Occupational Regulation (OPOR), Maine Board of Pharmacy
CHAPTER NUMBER AND TITLE:
Ch. 1, Definitions (amended)
Ch. 6, Pharmacy Student Internship Programs (sunsetted)
Ch. 6-A, Pharmacy Student Internship Programs (new)
Ch. 7, Registration and Employment of Pharmacy Technicians (amended)
Ch. 12, Licensure of Manufacturers and Wholesalers (amended)
Ch. 13, Operation of Retail Drug Outlets (amended)
Ch. 16, Operation of Wholesalers and Manufacturers (amended)
Ch. 20, Automated Pharmacy Systems (repeal and replace)
Ch. 20-A, Self-Service Customer Kiosks (new)
Ch. 22, Sale of Schedule V Controlled Substances (amended)
Ch. 25, Patient Counseling (amended)
PROPOSED RULE NUMBER: 2011-P192 thru P202
CONTACT PERSON FOR THIS FILING: Geraldine Betts, Board Administrator, Office of Professional and Occupational Regulation, 35 State House Station, Augusta, ME 04333. Telephone: (207) 624-8625. E-mail: Geraldine.L.Betts@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different): same
PUBLIC HEARING: November 3, 2011, 9:00 a.m., Department of Professional and Financial Regulation, 76 Northern Avenue, Gardiner, Maine
COMMENT DEADLINE: December 9, 2011
BRIEF SUMMARY: The proposed rules implement six major initiatives: (1) transfer of responsibility for overseeing student internships and student preceptors from retail pharmacies to pharmacy schools, (2) unified, reduced-cost licensure of student interns who also work as pharmacy technicians, (3) major revision of the requirements for use of an automated pharmacy system at a hospital, nursing home or other institution; (4) authorization for pharmacy technicians (advanced) to load an automated pharmacy system at a hospital or nursing home under the direct, remote supervision of a pharmacist (5) authorization for deployment of self-service customer kiosks in retail pharmacies (restrictions apply),and (6) a requirement that all wholesale distributors be verified-accredited wholesale distributors by January 1, 2013, provided that a wholesale distributor initially licensed by the board after January 1, 2012 may submit proof of accreditation no later than one year after the date of initial licensure. In addition, the proposed rules make various minor changes for clarity, readability, and consistency with the pharmacy law. The proposed rules and a chapter-by-chapter list of changes may be downloaded from www.maine.gov/professionallicensing .
DETAILED BASIS STATEMENT / SUMMARY:
Ch. 1, Definitions (amended)
* The following definitions have been added or amended in conjunction with the substantive changes discussed below: “APPE,” “direct supervision,” “IPPE,” “point of care location” and “VAWD.” The definition of “wholesale distributor” has been updated to reflect a change in statute.
Ch. 6, Pharmacy Student Intern Programs (sunsetted)
* This chapter is replaced by the student internship program requirements contained in new Ch. 6-A. Because pharmacy students currently enrolled in out-of-state schools may be completing an internship under Ch. 6, the board will recognize student internships that meet the requirements of Ch. 6 with respect to pharmacist license applications filed through June 30, 2012. All applications for pharmacist licensure received on or after July 1, 2012 must document completion of an internship that meets the requirements of new Ch. 6-A.
Ch. 6-A, Pharmacy Student Intern Programs (new)
* Pharmacy schools, not the board or retail pharmacies, are responsible for the administration of pharmacy student intern programs. This is a major change from the current rules.
* Student internship consists of an initial pharmacy practice experience (“IPPE”) and advanced practice pharmacy experience (“APPE”) as administered by an accredited pharmacy school. Although current standards of the American College of Clinical Pharmacy provide for a 300 hour IPPE and a 1440 APPE, for a combined total of 1,740 hours, the proposed rules carry forward the 1500-hour floor contained in the current Ch. 6.
* A student intern will receive one pharmacy technician intern license, renewable annually, that will expire 1 year after the intern’s receipt of the Pharm.D. The unified license will cover service during the IPPE and APPE plus any employment of the licensee as a pharmacy technician outside of the IPPE/APPE. This will end the current need for multiple pharmacy technician licenses during a student’s academic career and post-graduate pending licensure as a pharmacist.
* There will be an initial fee, but no renewal fees, for the unified pharmacy technician intern license. The student intern must verify enrollment annually on line. Maintenance of matriculation is an ongoing requirement of the pharmacy technician intern license. The license will automatically terminate upon the student’s dropping out of or expulsion from pharmacy school. The licensee must notify the board within 10 days if the licensee has dropped out of or has been expelled from pharmacy school.
* The pharmacy school is responsible for hiring preceptors. For an IPPE or APPE administered in Maine, a preceptor pharmacist must also be licensed in good standing by the board and have at least 2 years of practice experience as a licensed pharmacist in any state.
* A student intern’s completion of an IPPE or APPE must be verified by the preceptor pharmacist in a manner acceptable to the board. A student intern must report to the board annually all non-IPPE or -APPE hours worked as an ordinary pharmacy technician. The hours must be verified by the pharmacist in charge or supervising pharmacist.
* For foreign-educated graduates, the substance of the current internship rule (Ch. 6) has been folded into the unified pharmacy technician intern license described above. Internship remains at a straight 1,500 hours, of which at least 500 hours must e completed in the United States. Preceptors are practicing pharmacists.
Ch. 7, Registration and Employment of Pharmacy Technicians (amended)
* A pharmacy technician (advanced) is now authorized to perform certain duties relating to automated pharmacy systems without needing to be in the physical presence of the supervising pharmacist. See the revised definition of “direct supervision” in Ch. 1, Section 14 of the proposed rules.
Ch. 12, Licensure of Manufacturers and Wholesalers (amended)
* All wholesale distributors must be accredited by the verified-accredited wholesale distributor program (“VAWD”) administered by the National Association of Boards of Pharmacy no later than January 1, 2013, provided that a wholesale distributor initially licensed by the board after January 1, 2012 may submit proof of accreditation no later than one year after the date of initial licensure.
* VAWD accreditation must be continually maintained by the wholesaler and is an ongoing requirement of licensure renewal.
* The license application process is significantly streamlined for VAWD-accredited wholesale distributors in the areas of license verification, disclosure and documentation of disciplinary actions, and provision of inspection reports.
Ch. 13, Operation of Retail Drug Outlets (amended)
* Section 6 is amended to require security cameras to also monitor self-service customer kiosks.
Ch. 16, Operation of Wholesalers and Manufacturers (amended)
* The title of the chapter has been changed to correspond to the terminology used in Ch. 12, Licensure of Manufacturers and Wholesalers. There are no changes to the text of the chapter.
Ch. 20, Automated Pharmacy Systems (repeal and replace)
* Current Ch. 20 has been split into two subchapters covering, respectively: (a) automated pharmacy systems in a retail pharmacy and (b) automated pharmacy systems in a hospital, nursing home, prison or other institutional setting. Whereas the former category consists of robotic filling machines, the latter category consists of remote dispensing systems.
* Subchapter 1, dealing with automated pharmacy systems in retail pharmacies, is substantially similar to Ch. 20 in the current rules.
* Subchapter 2, dealing with automated pharmacy systems in an institutional setting, is substantially new. This type of automated pharmacy system is a mechanism for delivery of drugs to patients or clients when a pharmacist is not on-site. Designated categories of health care providers or corrections personnel may enter prescriptions into the system at a point of care location such as a hospital, nursing home or penal institution that is remote from the pharmacist in charge of the system. The pharmacist remotely authorizes the dispensing machine at the point of care location to release the prescribed medication in single-dose units that are automatically labeled with the patient’s name and all other label information required by law. Pharmacy technicians (advanced) will be authorized to accept delivery of canisters and stock dispensing machines, but will not be authorized to remove drugs from the machines.
* Subchapter 2 addresses the need for pharmacist control, user accountability, drug security, and protection against misfills in the following additional respects:
o A delivery log is required to document a courier’s delivery of filled canisters from an automated pharmacy to a point of care location.
o “Direct supervision” is defined in Ch. 1 and 7 to require 2-way audiovisual communication between a remote pharmacist and a pharmacy technician (advanced) at a point of care location.
o Security cameras must monitor the front face of a remote dispensing machine and all faces that open for loading; Fifteen frames per second color is required.
o A remote dispensing system must use barcoding and microchip technology to ensure that the drug and dosage put in a canister at a remote pharmacy is the drug and dosage actually dispensed at the point of care location.
Due to these protections, and unlike the dispensing of prescription drugs by a retail pharmacy or central fill drug outlet, no final check is required at the point of care location.
Ch. 20-A, Self-Service Customer Kiosks (new)
* A retail pharmacy may install self-service customer kiosks for customer pick-up of finished prescriptions. Due to the mandatory counseling requirement for new prescriptions, kiosks are for refills only. A kiosk may offer the customer an opportunity for refill counseling by toll-free telephone; however, a kiosk must inform customers that counseling is available at the pharmacy counter. A kiosk may operate only when the licensed pharmacy is open. A kiosk must be alarmed and may not dispense controlled substances.
Ch. 22, Sale of Schedule V Controlled Substances (amended)
* The text of this chapter has been updated to more closely conform to the governing statutes.
Ch. 25, Patient Counseling (amended)
* The statutory limitation of counseling responsibilities in connection with prescriptions to patients in hospitals and institutions has been reproduced in this chapter verbatim to avoid confusion that may be caused by its omission. See 32 MRSA §13784(1).
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THESE RULES: 32 MRSA §§ 13720, 13721(1), 13722, 13723, 13732, 13733, 13734, 13751, 13758, 13784
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
BOARD OF PHARMACY WEBSITE: http://www.maine.gov/pfr/professionallicensing/professions/pharmacy/index.htm .
OPOR RULE-MAKING LIAISON: Jeffrey.M.Frankel@Maine.gov .



AGENCY: 01-001 – Department of Agriculture, Food and Rural Resources
CHAPTER NUMBER AND TITLE: Ch. 211, Rules for the Disposal of Animal Carcasses
PROPOSED RULE NUMBER: 2011-P203
CONTACT PERSON FOR THIS FILING: Bill Seekins (207-287-7531 - Bill.Seekins@Maine.gov ) or Mark Hedrich (207-287-7608 - Mark.Hedrich@Maine.gov ), 28 State House Station, Augusta, ME 04333. Fax: (207) 287-7548. Website: www.maine.gov/agriculture/index.shtml
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
PUBLIC HEARING: November 1, 2011, Deering Building, Room 319, AMHI Campus, Augusta, Maine. 9:00 a.m.
COMMENT DEADLINE: December 1, 2011
BRIEF SUMMARY: This is an update of Ch. 211, which was last updated in 1996. It expands the rule to include new disposal technologies and methods and requires large livestock farms to have a catastrophic carcass disposal plan. It also requires that provisions for disposing of routine mortalities be added to nutrient management plans as they are developed. Siting requirements for carcass burial, composting and other types of disposal sites have been updated as well.
DETAILED BASIS STATEMENT / SUMMARY: Maine’s animal carcass disposal rules were last updated in 1996 and are now very outdated. Since that time considerable research on animal carcass disposal technologies and methods has been done both here in Maine and elsewhere. The rules that are currently in place do not reflect the many new approaches that have been developed and are now among the industry standard practices. In addition, the old rules allow for practices such as disposal pits that are no longer considered to be best management practices. The current rule places more emphasis on composting, which is now the preferred disposal method in Maine, especially for catastrophic events.
Technologies that were not addressed in the old rule, such as anaerobic digestion, alkaline hydrolysis, thermal hydrolysis and pyrolysis have been added to the rule as acceptable disposal techniques and standards have been developed. New approaches for incineration have been added and new standards for incinerator siting and operation are referenced.
The update also requires that farms with more than 300 animal units have a catastrophic carcass disposal plan and that provisions for the disposal of normal mortality be added to nutrient management plans as they are written or updated. More detailed siting standards for burial, composting and other carcass disposal sites (including animal baiting sites) have been developed based on experience gained in the 15 years since the last rule update.
The updated rule will continue to be administered through the Maine Department of Agriculture’s Nutrient Management and Agricultural Compliance Programs in cooperation with the State Veterinarian.
Copies of the proposed rule may be obtained from:
Maine Department of Agriculture
Division of Agricultural Resource Development
28 State House Station
Augusta, ME 04333
Telephone: (207) 287-1132
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 7 MRS §1752
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
AGRICULTURE RULE-MAKING LIAISON: Caldwell.Jackson@Maine.gov .



AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services
RULE TITLE OR SUBJECT: Ch. 101, MaineCare Benefits Manual: Ch. II Section 9, Indian Health Service, and Ch. II & III Section 3, Ambulatory Care Clinic Services
PROPOSED RULE NUMBERS: 2011-P204, P205
CONCISE SUMMARY: The proposed rule would consolidate and update all rules pertaining to reimbursement of Indian Health Service (IHS) clinic services to one new section of MaineCare Benefits Manual (MBM) policy in order to better serve the public and meet federal requirements by making requirements clearer. Some services provided by IHS providers are subject to different federal guidelines. Separation of these rules will clarify specific rules for IHS providers. The Department will also add guidelines for co-payment exemptions and tribal consultation, to be in compliance with new federal guidelines. Currently IHS services are included in MBM Section 3, Ambulatory Care Clinics. Section 3, Ambulatory Care Clinics will be amended at the same time as this rule-making to delete those portions that will now be part of Section 9, Indian Health Services.
See http://www.maine.gov/dhhs/oms/rules/provider_rules_policies.html for rules and related rulemaking documents.
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 22 MRSA §§ 42, 3173
PUBLIC HEARING: October 31, 2011, 10:00 a.m., Conference Room # 1A & 1B, Department of Health and Human Services, Office of MaineCare Services, 442 Civic Center Drive, Augusta, ME. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed above before October 24, 2011.
DEADLINE FOR COMMENTS: Comments must be received by midnight on December 1, 2011.
AGENCY CONTACT PERSON: Jamie L. Paul, Comprehensive Health Planner II, Office of MaineCare Services, 442 Civic Center Drive, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-4460. Fax: (207) 287-9369. TTY: 1 (800) 606-0215 or (207) 287-1828 (Deaf or Hard of Hearing). E-mail: Jamie.L.Paul@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .



AGENCY: 05-071 – Department of Education (DOE)
CHAPTER NUMBER AND TITLE: Ch. 101, Maine Unified Special Education Regulation Birth to Age Twenty
PROPOSED RULE NUMBER: 2011-P206
CONTACT PERSON FOR THIS FILING: Joanne C. Holmes, Federal State Legislative Liaison, Department of Education, 23 State House Station, Augusta, ME 04333. Telephone: (207) 624-6620. E-mail: Jaci.Holmes@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
PUBLIC HEARING: October 31, 2011 from 10:00-11:00 a.m. in Room 500 of the Cross State Office Building, Augusta, Maine
COMMENT DEADLINE: November 11, 2011 at 5 p.m.
BRIEF SUMMARY: The Department of Education is proposing several amendments to Ch. 101 to comply with recently enacted State laws.
Pursuant to PL 2011, Ch. 63, the Resolve related to LD 688 language has been added to the federal language in Section VI regarding alternate means of participating in individualized education program team meetings and special education dispute resolutions.
Pursuant PL 2011, Ch. 19, the Resolve related to LD 45, marriage and family therapists have been added as qualified providers.
Pursuant to PL 2011, Ch. 42, the Resolve related to LD 964, Section V.6 has been amended to allow observations by qualified examiners.
Pursuant to PL 2011, Ch. 363, the Resolve related to LD 1110, Section VI.2.A has been amended to reflect that the advance written notice is required to include whether the school administrative unit will have an attorney present at an individualized education program team meeting.
Pursuant to PL 2011, Ch. 386, the Resolve related to LD 1094, the term School Psychological Service Provider has been changed to School Psychologist.
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 20-A MRSA §7005(1)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/education/index.shtml .
DOE RULE-MAKING LIAISON: Greg.Scott@Maine.gov .


AGENCY: 16-633 - Gambling Control Board
CHAPTER NUMBER AND TITLE: Ch. 5, Internal Controls
PROPOSED RULE NUMBER: 2011-P207
BRIEF SUMMARY: The change will be made to Appendix A to incorporate Internal Controls of Table Games.
DETAILED BASIS STATEMENT / SUMMARY: This rule change will affect the minimum internal controls required for slot and casino operators.
CHAPTER NUMBER AND TITLE: Ch. 24, The Use of Front Money Deposits
PROPOSED RULE NUMBER: 2011-P208
BRIEF SUMMARY: Regulates the use of front money by patrons at a casino.
DETAILED BASIS STATEMENT / SUMMARY: This rule will establish the process for casinos to use when they allow patrons to use front money.
CHAPTER NUMBER AND TITLE: Ch. 25, Approval of Table Games Rules of Play
PROPOSED RULE NUMBER: 2011-P209
BRIEF SUMMARY: Set the process for casinos to get approval for their table game rules.
DETAILED BASIS STATEMENT / SUMMARY: This rule will establish the process for casinos to get approval for the rules for their table games.
CHAPTER NUMBER AND TITLE: Ch. 26, Posting of Rules
PROPOSED RULE NUMBER: 2011-P210
BRIEF SUMMARY: Requires casinos to pose the rules of play.
DETAILED BASIS STATEMENT / SUMMARY: This rule will require that casinos post the rules of play for their table games.
PUBLIC HEARING: 10.a.m. on November 2, 2011 at DPS Headquarters, Gambling Control Boardroom, 45 Commerce Drive Suite #3, Augusta, Maine 04333-0087
COMMENT DEADLINE: November 12, 2011
AGENCY CONTACT PERSON / RULE-MAKING LIAISON: Patrick J. Fleming, Gambling Control Board, 87 State House Station, Augusta, ME 04333-0087. Telephone: (207) 626-3901. E-mail: Patrick.J.Fleming@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
IMPACT ON MUNICIPALITIES OR COUNTIES: N/A
STATUTORY AUTHORITY: 8 MRSA c.31 §1003
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/dps/GambBoard/ .



AGENCY: 06-096 - Maine Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 378, Variance Criteria for the Excavation of Rock, Borrow, Topsoil, Clay or Silt and the Performance Standards for the Storage of Petroleum Products
PROPOSED RULE NUMBER: 2011-P211
CONTACT PERSON FOR THIS FILING: Mark Stebbins, Maine Department of Environmental Protection, 312 Canco Road, Portland, ME 04103. Telephone: (207) 822-6367. Fax: (207) 822-6303. E-mail: Mark.N.Stebbins@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: Julie Churchill: (207) 287-7881; Julie.M.Churchill@maine.gov .
BRIEF SUMMARY: As required by PL 2011 Ch. 26, the Department of Environmental Protection is posting draft changes to the Ch. 378, Variance Criteria for the Excavation of Rock, Borrow, Topsoil, Clay or Silt and the Performance Standards for the Storage of Petroleum Products, 06-096 CMR c. 378. This rule making is necessary to implement the intent of Resolve #26 as required by the Legislature to allow licensed mining operation to store of a small amount of diesel fuel on significant sand and gravel aquifers mapped by Maine Geological Survey.
IMPACT ON MUNICIPALITIES OR COUNTIES This rule will not have an impact on municipalities.
STATUTORY AUTHORITY FOR THIS RULE: P.L. 2011, Ch. 26, Resolve to Establish a Single Construction Permit for Certain Above Ground Oil Storage Tanks in Gravel Pits and Quarries, and 38 MRSA §341-D, 38 MRSA §490-E and §490-CC.
PUBLIC HEARING: November 3, 2011 at 9:30 a.m., Florian Hall (Department of Public Safety Building), 45 Commerce Drive, Augusta, Maine 04330
COMMENT DEADLINE: November 14, 2011. Comments may be submitted by mail, e-mail or fax to the contact person listed above. To ensure the comments are considered, they must include your name and the organization you represent, if any. A copy of the rule is available upon request from the contact above, and on the web at: http://www.maine.gov/dep/rulemaking.htm .
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Terry.Dawson@Maine.gov .



AGENCY: 06-096 - Maine Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 419, Maine Solid Waste Management Rules: Agronomic Utilization of Residuals
PROPOSED RULE NUMBER: 2011-P212
CONTACT PERSON FOR THIS FILING: Carla J. Hopkins, Maine Department of Environmental Protection, #17 State House Station, Augusta, ME 04333-0017. Telephone: (207) 215-3314. Fax: (207) 287-7826. E-mail: Carla.J.Hopkins@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: Julie Churchill; (207) 287-7881; Julie.M.Churchill@Maine.gov .
BRIEF SUMMARY: The Department of Environmental Protection is posting draft changes to the Solid Waste Management Rules: Agronomic Utilization of Residuals, 06-096 CMR c. 419. The revisions will increase the screening concentration for arsenic for sewage sludge utilization contained in 06-096 CMR c. 419 from 10 mg/kg to 34 mg/kg.
DETAILED BASIS STATEMENT / SUMMARY: As originally drafted, LD 515 (An Act to Review State Water Quality Standards) included provisions to require the Department to undertake rulemaking to change the screening standard for arsenic for sewage sludge utilization contained in 06-096 CMR c. 419 from 10 mg/kg to 41 mg/kg which is the requirement in the federal counterpart rule (Standards for the Use or Disposal of Sewage Sludge, 40 CFR Part 503). Because Part 503 was promulgated in 1993 and the risk assessment data used to develop the screening standards is out of date, the Department proposed to investigate the issue and make recommendations about updating the arsenic screening standard in 06-096 CMR c. 419. Subsequently, stakeholders urged the sponsoring legislator to remove the sewage sludge/biosolids language from LD 515, provided that the Department thoroughly investigate the issue and undertake rulemaking as appropriate. This proposed rule is a result of that stakeholder process and consultation with toxicologists at the Maine Center for Disease Control and Prevention (Maine CDC).
IMPACT ON MUNICIPALITIES OR COUNTIES: None
PUBLIC HEARING: November 1, 2011 at 10:00 a.m., DEP Response Building, 4 Blossom Lane, Augusta, ME 04333
COMMENT DEADLINE: December 1, 2011
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §1304(1)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different): N/A
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Terry.Dawson@Maine.gov .



AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 530, Surface Waters Toxic Control Program
PROPOSED RULE NUMBER: 2011-P213
CONTACT PERSON FOR THIS FILING: Robert D. Stratton, Maine Department of Environmental Protection, 17 State House Station, Augusta, ME 04330-0017. Telephone: (207) 215-1579. Fax: (207) 287-3435. E-mail: Robert.D.Stratton@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
BRIEF SUMMARY: The surface waters of the State are managed to prevent contamination from toxic pollutants in toxic amounts in order to meet the goals of the Clean Water Act and Maine’s water quality standards. Toxic compounds may not be discharged in amounts that may cause toxic impacts on aquatic organisms or affect human health. This rule revision allows the Department when calculating limits for toxic substances, to utilize allocations previously set aside as water quality reserves for future growth if doing so would avoid causing statistically generated (potential) exceedences of ambient water quality criteria. This rule revision also specifies that all permit limits for metals shall be expressed as mass-based limits only, unless required by adopted effluent limitation guidelines, and revises the timeframe for routine screening level testing to better provide for use of test results in Department permitting decisions.
IMPACT ON MUNICIPALITIES OR COUNTIES: This rule revision will benefit municipalities that operate affected Publicly Owned (wastewater) Treatment Works (POTWs) by reducing the time and cost of monitoring.
PUBLIC HEARING: November 1, 2011, 9:00 a.m., MEDEP Response Services Training Room, 4 Blossom Lane, Augusta, ME 04330
COMMENT DEADLINE: December 1, 2011
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §§ 341-H, 420, and 464
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Terry.Dawson@Maine.gov .



AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 584, Surface Water Quality Criteria for Toxic Pollutants
PROPOSED RULE NUMBER: 2011-P214
CONTACT PERSON FOR THIS FILING: Robert D. Stratton, Maine Department of Environmental Protection, 17 State House Station, Augusta, Me 04330-0017. Telephone: (207) 215-1579. Fax: (207) 287-3435. E-mail: Robert.D.Stratton@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
BRIEF SUMMARY: The surface waters of the State are managed to prevent contamination from toxic pollutants in toxic amounts in order to meet the goals of the Clean Water Act and Maine’s water quality standards. Toxic compounds may not be discharged in amounts that may cause toxic impacts on aquatic organisms or affect human health. This rule revision changes the cancer risk level for inorganic arsenic used in calculating ambient water quality (human health) criteria and establishes revised inorganic arsenic criteria accordingly. Further, this revision updates Maine’s ambient water quality and human health criteria for pollutants for which USEPA has updated criteria since Maine’s last revision in 2005, using Maine-specific parameters where applicable.
IMPACT ON MUNICIPALITIES OR COUNTIES: This rule revision will benefit municipalities that operate affected Publicly Owned (wastewater) Treatment Works (POTWs) by eliminating criteria for arsenic that is believed to be unattainable and establishing new arsenic criteria still within USEPA guidelines. Further, it will benefit affected municipalities by ensuring that the Department utilizes the most current criteria.
PUBLIC HEARING: November 1, 2011, 9:30 a.m., MEDEP Response Services Training Room, 4 Blossom Lane, Augusta, ME 04330
COMMENT DEADLINE: December 1, 2011
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §§ 341-H, 420, and 464
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Terry.Dawson@Maine.gov .



AGENCY: 06-096 - Maine Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 692, Siting of Oil Storage Facilities
PROPOSED RULE NUMBER: 2011-P215
CONTACT PERSON FOR THIS FILING: George Seel, Maine Dept. of Environmental Protection, Bureau of Remediation & Waste Management, State House Station 17, Augusta, ME 04333. Telephone: (207) 287-7166. E-mail: George.J.Seel@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: Julie.M.Churchill@Maine.gov .
BRIEF SUMMARY: This rulemaking is an amendment of the Department’s current regulations restricting the siting of new oil facilities in significant sand and gravel aquifers. This amendment is in response to a legislative resolve passed during the 2011 session of the Maine Legislature. It would allow for the storage of up to 1,100 gallons of diesel fuel for fueling heavy equipment used in the mining of sand and gravel from pits located in significant sand and gravel aquifers mapped by the Maine Geological Survey. The objective of this rule change is to allow such oil storage without significantly increasing the risk of oil contamination of ground water, and to do so without the currently required variance application and testing of the aquifer’s ground water yield. The rule amendment would also exempt proposed new oil storage facilities on a site erroneously mapped as a significant sand and gravel aquifer and urban locations where ground water has already been contaminated and no longer is useable as drinking water.
DETAILED BASIS STATEMENT / SUMMARY: Amendment of Ch. 692 is required to meet the mandate of a legislative resolve. The details of how the rule is amended is a matter of ground water contamination risk management while still allowing limited diesel fuel storage on a significant sand and gravel aquifer.
Maine’s significant sand and gravel aquifers have been recognized since the 1970s as an important resource for both current and future public (particularly municipal and large water district) and private drinking water supplies. In fact, they are the most cost effective future source of drinking water for Maine communities given the high cost of treatment of surface water supplies and the uncertainty of finding sufficiently large volumes of water in bedrock. As such they are a critical element for future community development, including economic development. It has been long standing State policy to protect such significant aquifers from the pollution risks inherent with solid waste landfills, hazardous waste facilities, some hazardous substance generating and handling facilities, radioactive waste handling and underground storage of oil. In 2008 the Legislature closed a loophole in this safety net by restricting the location of above ground oil storage facilities on these significant aquifers by authorizing major substantative rulemaking by the Department – Ch. 692.
To respond to the 2011 legislative resolve, this amendment proposes a limited and conditional exemption to Ch. 692 exclusively for the aggregate mining industry. It is based on discussions held with industry officials in late 2010 and January 2011. The amendment would allow up to two tanks with an aggregate storage capacity of 1,100 gallons without the currently required variance, without an analysis to determine whether a tank will be located on very high yielding portion of aquifer (>50 gallons per minute), and without a detailed technical review by the Department. A permit by rule process is provided as a substitute in order to meet the legislative Resolve’s goal of a single State permit for such new facilities. This effort has been coordinated with a similar effort by the State Fire Marshal’s office to provide a permit by rule alternative to their current construction permit review process.
On balance, the proposed rule may slightly decrease the risk of significant or routine discharges of diesel fuel over current vehicle fueling practices by the aggregate mining industry, and if the volume, number of tanks and dispensing locations are limited, and with state of the art facility design, leak and spill detection, operation and maintenance procedures, and routine compliance inspections by DEP’s Bureau of Land & Water Quality mining staff. This rule amendment will allow new diesel fuel storage facilities on portions of significant sand and gravel aquifers mapped and currently protected because of their high yield of clean ground water for drinking water. With such a new oil storage facility, there are inherent risks of discharges from storage and handling, and in particular from tank and vehicle overfills, equipment and material failures, and human error or negligence. Current practice is to fuel heavy equipment from so-called peddle trucks (heating oil delivery trucks) which has its own risks of discharges from vehicle overfills and human error/negligence since diesel fuel is pumped under pressure with few safeguards against discharges. A significant discharge or repeated routine discharges of diesel fuel in such a sensitive geological setting may result in ground water contamination resulting in the aquifer unsuitable and unhealthy as a source of drinking water.
Because this amendment sets precedent and provides an exemption not available to oil storage facilities owned by others outside the mining industry, it may result in similar exemption requests in the future for additional new oil storage and handling facilities on the State’s significant sand and gravel aquifers.
Other proposed exemptions for new facilities on erroneously mapped aquifers or in an urban area where the ground water is contaminated by numerous contaminants due to historical commercial and industrial land uses will replace current variance requirements. These are currently the two most common variance requests to the Department for new oil storage facilities under the 2008 Act to Prevent Contamination of Drinking Water Supplies. As proposed, elimination of the variance application process in these two specific instances will still allow the Department to evaluate whether a site falls under the rule’s siting restrictions, but without a formal variance application process.
IMPACT ON MUNICIPALITIES OR COUNTIES: Provided the safeguards in the rule against oil discharges and the required early reporting and clean up of discharges are adequate, towns, water districts and other municipalities, on balance should not be significantly impacted. If a sand and gravel aquifer were contaminated, the fiscal impact would be the economic value of that ground water or the cost of the remedy whether a clean-up or new water supply.
PUBLIC HEARING: November 3, 2011 at 9:00 a.m., Florian Hall (Department of Public Safety Building), 45 Commerce Drive, Augusta, Maine 04330
COMMENT DEADLINE: November 14, 2011
STATUTORY AUTHORITY FOR THIS RULE: Resolve 2011, Ch. 26: Resolve, To Establish a Single Construction Permit for Certain Above Ground Oil Storage Tanks in Gravel Pits and Quarries
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different): Same as above
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Terry.Dawson@Maine.gov .


ADOPTIONS



AGENCY: 10-144 - Department of Health and Human Services (DHHS), Division of Audit
CHAPTER NUMBER AND TITLE: Ch. 30, Maine Uniform Accounting and Auditing Practices for Community Agencies
ADOPTED RULE NUMBER: 2011-356
CONCISE SUMMARY: The Department is adopting final rules of the Maine Uniform Accounting and Auditing Practices for Community Agencies (MAAP). The Maine Legislature directed the Department, effective July 1, 2011, to repeal the MAAP regulations that took effect on January 1, 2011, and to replace those regulations with the MAAP regulations that were in effect on December 31, 2010; P.L. 2011, ch. 304, Sec. I-1. The Department replaced the provisions by emergency rule effective July 1, 2011\1, and this rule permanently adopts the provisions put into place by the emergency rule.
See http://www.maine.gov/dhhs/audit/social-services for rules and related rulemaking documents.
EFFECTIVE DATE: October 4, 2011
AGENCY CONTACT PERSON: Caroll P. Thompson, CPA, Social Services Audit Manager, Division of Audit, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-2775. Fax: (207) 287-2601. TTY: 1 (800) 606-0215. E-mail: Caroll.Thompson@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/audit/index.shtml .



AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services
RULE TITLE OR SUBJECT: Ch. 101, MaineCare Benefits Manual: Ch. I Section 2, State Medicaid Health Information Technology Program
ADOPTED RULE NUMBER: 2011-357
CONCISE SUMMARY: This rule establishes policies for the Medicaid Health Information Technology (HIT) electronic health record (EHR) incentive payment program for Medicaid professionals and hospitals overseen by MaineCare Services (OMS). In order to be eligible, a professional or hospital must: 1) be of a certain type of professional or hospital and meet Medicaid or needy individual patient thresholds established for that type of professional or hospital as shown in Sections 1.04 and 1.05 of the rule; 2) adopt, implement or upgrade certified electronic health records before being approved for the first payment; and 3) meaningfully use the EHR before being approved for subsequent payments.
The benefits to the participants are significant. An EP can receive a first year incentive payment of $21,250 for the initial adoption, implementation or upgrade of certified EHR technology. Upon establishing meaningful use of EHR technology, EPs will receive $8,500 in each of the next five payment years. The total amount of the EHR incentive payments for EPs over the six year payment period is $63,700.
Based on a number of factors, Eligible Hospitals (EHs) receive $2,000,000 plus additional payments based on EHR incentives over a three (3) year period. Upon adopting, implementing or upgrading and establishing meaningful use of certified EHR technology, Eligible Hospitals receive 50% of the total incentive payment amount in the first year, 40% in the second year and 10% in the final third year.
MaineCare will manage, administer and oversee the EHR Incentive Program for Medicaid providers as well as pursue initiatives that encourage the adoption of certified EHR technology and promote quality health care outcomes and data sharing. Members should benefit from improved health outcomes, increased patient safety, care coordination, increased efficiency and lower health care costs through meaningful use of EHR technology.
See http://www.maine.gov/dhhs/oms/rules/provider_rules_policies.html for rules and related rulemaking documents.
EFFECTIVE DATE: October 4, 2011
AGENCY CONTACT PERSON: Michael J. Dostie, Comprehensive Health Planner, MaineCare Services, 442 Civic Center Drive, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-6124. Fax: (207) 287-9369. TTY: 1 (800) 606-0215 or (207) 287-1828 (Deaf or Hard of Hearing). E-mail: Michael.Dostie@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .



AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. II & III Section 29, Support Services for Adults with Intellectual Disabilities or Autistic Disorders
ADOPTED RULE NUMBER: 2011-358
CONCISE SUMMARY: This rule permanently adopts an emergency rule that became effective on July 1, 2011. The following changes were made in order to comply with the CMS approval of the waiver amendment and extension: Annual hourly limits for Community Support services were reduced from 1,300 to 1,125 hours. Annual hourly limits for Work Support services were increased from 300 to 600 hours. The combined annual hourly limit for when members use both Community Support and Work Support services was reduced to 1,125 from 1,300 hours. The Department has added Appendix III to Ch. II, which is composed of charts, to show how hours for the two services can be combined. The Department changed the name of both Ch. II and III of this Section, to Support Services for Adults with Intellectual Disabilities or Autistic Disorders, to match the name of the waiver, as approved by CMS. Substituting the terms “intellectual disability” for “mental retardation” also comports with P.L. 2009, ch. 571. Eligibility for Section 29 services includes the diagnoses of Asperger’s Syndrome, Pervasive Developmental Disorder (not otherwise specified), Autistic Disorder, Rett’s Disorder and Childhood Disintegrative Disorder.
The Department corrected a typographical error in Ch. II: Limits on Respite Services was added to indicate that the Respite per diem rate is $90.00. The reduction from $100.00 to $90.00 was made in 2010 for Ch. III, but the Department did not make the corresponding change to Ch. II. Lastly, in Ch. III, procedure codes that are obsolete have been deleted. A public hearing was held on July 26, 2011. The comment deadline was August 5, 2011. This change is not expected to have an adverse impact on small businesses, or on counties or municipalities.
See http://www.maine.gov/dhhs/oms/rules/provider_rules_policies.html for rules and related rulemaking documents.
EFFECTIVE DATE: October 4, 2011
AGENCY CONTACT PERSON: Ginger Roberts-Scott, Comprehensive Health Planner, Division of Policy, MaineCare Services, 442 Civic Center Drive, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-9365. Fax: (207) 287-9369. TTY: 1 (800) 606-0215 or (207) 287-1828 (Deaf/Hard of Hearing). E-mail: Ginger.roberts-scott@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .



AGENCY: 29-250 - Secretary of State, Bureau of Motor Vehicles
CHAPTER NUMBER AND TITLE: Ch. 170, Permitting Commercial Vehicles at Canadian Weight Limits to Travel from Designated Points at the Canadian Border to Baileyville, Madawaska, and Van Buren
ADOPTED RULE NUMBER: 2011-359
CONCISE SUMMARY: This chapter outlines the procedures and standards for implementing the Canadian Weight Limits (CWL) program authorized by Title 29-A MRSA §2354-C which provides for the operation of two vehicle configurations at certain Canadian weight limits between the Canadian border at Calais to a mill in Baileyville; from the Canadian border at Madawaska to a paper mill in Madawaska; and from the Canadian border at Van Buren to a rail yard in Van Buren.
EFFECTIVE DATE: October 9, 2011
AGENCY CONTACT PERSON: Garry Hinkley, Bureau of Motor Vehicles – Motor Carrier Services, 29 State House Station, Augusta, ME 04333-0029. Telephone: (207) 624-9055. E-mail: Garry.Hinkley@Maine.gov .
WEBSITE: http://www.maine.gov/sos/bmv/ .
BMV RULE-MAKING LIAISON: Thomas.Arnold@Maine.gov .



AGENCY: 09-137 – Department of Inland Fisheries and Wildlife (IF&W)
CHAPTER NUMBER AND TITLE: Ch. 4.06, Wild Turkey Hunting Fall Season
ADOPTED RULE NUMBER: 2011-360
CONCISE SUMMARY: The Department ofInland Fisheries and Wildlife has amended the fall wild turkey hunting season by removing Wildlife Management Districts 24 and 25 from Zone] and adding them to Zone 2 (starting 30 days prior to and extending to the Friday preceding the regular deer hunting season, which corresponds to the archery deer hunting season.) and adding Wildlife Management District 26 to Zone 3 (starting 6 days prior to and extending through the Friday preceding Youth Deer Hunting Day.) In Zone 2, only bow and arrow may be used to hunt wild turkey; in Zone 3, bow and arrow or shotguns may be used.
EFFECTIVE DATE: October 9, 2011
AGENCY CONTACT PERSON: Becky Orff, Inland Fisheries and Wildlife, 284 State Street, 41 State House Station, Augusta, ME 04333. Telephone: (207) 287-5202. E-mail: Becky.Orff@Maine.gov .
WEBSITE: http://www.maine.gov/ifw/ .



AGENCY: 95-648 - Efficiency Maine Trust
CHAPTER NUMBER AND TITLE: Ch. 110, Property Assessed Clean Energy
ADOPTED RULE NUMBER: 2011-361
CONCISE SUMMARY: The PACE Act provides a new mechanism for Maine energy consumers to finance energy savings improvements to their homes and businesses. For purposes of implementing the PACE Act, this rule establishes underwriting requirements, consumer disclosure requirements consistent with principles of truth in lending, terms and conditions under which municipalities and property owners may participate in a PACE program, and a quality assurance system for identifying and installing energy savings improvements.
EFFECTIVE DATE: October 11, 2011
AGENCY CONTACT PERSON: Dana Fischer, Efficiency Maine Trust, 151 State House Station, Augusta, ME 04333-6262. Telephone: (207) 650-8774. E-mail: Dana.Fischer@EfficiencyMaine.com .
WEBSITE: http://www.efficiencymaine.com/ .