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Massachusetts DEP Announces Proposed Regulatory Reforms and Other Changes

Beveridge & Diamond, P.C. - Massachuusetts Client Alert, October 25, 2011

Yesterday, the Massachusetts Department of Environmental Protection (MassDEP) officially announced conceptual changes to a broad swath of regulatory and permitting programs.  The Commissioner’s Draft Action Plan for Regulatory Reform at MassDEP is available at MassDEP’s web site (http://www.mass.gov/dep/about/priorities/regreform.htm) and seeks public review and comment by November 21, 2011. 

This Draft Plan is the result of a summer-long comprehensive effort to identify regulatory reforms that would enable MassDEP to meet its responsibilities with fewer resources and shift its resources to higher priority activities.  It comes amid a host of other changes being considered by MassDEP including a fundamental redesign of MassDEP’s information technology infrastructure, restructuring of management roles given the decline in the number of MassDEP employees, new regulations for anaerobic digesters for alternative energy generation, and the announcement of a new head of the Bureau of Waste Site Cleanup, according to DEP Commissioner Ken Kimmell at presentations last week and today.

Highlights of the proposed regulatory reforms in the Draft Plan are:

  • Elimination of sewer connection and extension permits issued by MassDEP and, as a consequence, those triggers for MEPA review.
  • Focusing on developing general permits to cover certain wetland activities outside the 50-foot buffer zone and under Chapter 91 for non-commercial small-scale docks, piers, and similar structures.
  • Decreased reliance on MassDEP personnel for various tasks, including increased use of self-certifications for certain permit renewals, permits by rule for certain landfill post-closure activities and for small transfer stations, and third-party inspectors for active landfills.
  • Elimination of the numeric ranking system and tier classification for sites under the MCP.

The following is a more comprehensive review of MassDEP’s proposal.

I.          Wetlands, Waterways and Coastal Resources

  • Wetlands.  MassDEP proposes to streamline the process as follows:
    • Issuing file numbers immediately upon submittal of a Notice of Intent (NOI);
    • Limiting review of NOIs and other oversight of local actions to concentrate on appeals and providing assistance to conservation commissions;
    • Concentrating appeal reviews on projects with significant resource area impacts;
    • Exempting wetland resource areas created by stormwater management structures constructed prior to 1996 where the system meets performance standards;
    • Identifying ways to expedite permitting of ecological restoration projects such as stream daylighting; and
    • Expanding the category of limited projects to include clear, categorical standards for renewable energy  projects (i.e., those eligible for Renewable Energy Credits), to create more streamlined and predictable permitting for such projects.
  • Chapter 91 Licensing.  MassDEP proposes to streamline the process as follows:
    • Running the Chapter 91 process concurrently with Massachusetts Environmental Policy Act (MEPA) review;
    • Allowing a Chapter 91 license to be issued prior to an Order of Conditions;
    • Developing via policy a standard license term for Chapter 91 non-water dependent uses, to reduce negotiating the term for each license; and
    • Implementing a recent statutory authorization allowing creation of a general license for non-commercial small-scale docks, piers and similar structures.
  • Coastal/Dredging Programs:  Permit Consolidation.  MassDEP proposes to develop a common permit application for approvals under Chapter 91, the Wetlands Protection Act and Section 401 (Water Quality Certifications), to reduce time spent by both the applicant and MassDEP staff.  In addition, MassDEP proposes to clarify that certain projects may be considered “adequately regulated” by the issuance of one wetlands, waterways or coastal resources permit, eliminating the need for a second permit.
  • Streamlining New Energy Technology Pilot Projects.  Provide opportunities for innovative projects on a pilot basis that have difficulty being permitted under the existing regulations, with the goal of allowing some projects with uncertain impacts to proceed on a limited basis with appropriate monitoring and reporting safeguards to prevent damage to the environment.  MassDEP will propose changes to coastal permitting programs (wetlands, Chapter 91, Section 401 Water Quality Certifications) to effect this change.

II.        Wastewater

  • Sanitary and Industrial Wastewater Sewer Extension and Connection Approvals.  Eliminate MassDEP approval, which currently is sought after a local permit is issued for projects that exceed flow thresholds.  MassDEP would be able to require an individual permit when appropriate.  MassDEP would shift resources currently used for such approvals to focusing on infiltration/inflow issues, capacity issues, sanitary sewer overflows, and industrial pretreatment programs.  Since sewer permits from MassDEP are a MEPA trigger, this has the potential to reduce the number of projects subject to mandatory filing of an Environmental Notification Form.
  • Title 5 Innovative / Alternative Program.  MassDEP proposes to streamline approval of innovative and alternative systems by placing greater reliance on third party research, review and vetting of such systems. 
  • Title 5 Approvals.  MassDEP proposes to eliminate its approval of system variances and shared system approvals, which currently must first receive municipal approval.  MassDEP would retain the power to intervene in the local process, which MassDEP “plans to use ... to ensure proper oversight of particularly sensitive cases.”
  • Targeted Groundwater Inspections.  MassDEP has determined that the current routine, annual inspections of groundwater discharge facilities are not disclosing noncompliance appropriately.  MassDEP proposes to reduce these inspections and instead target inspections based on review of compliance data, complaints, and ongoing compliance issues.  In addition, the discharger would be required to hire a qualified professional to conduct a third party facility assessment, subject to MassDEP compliance audit. 

III.       Solid Waste

  • Permits by Rule and Self-Certification.
    • Permits by rule for certain post-closure activities such as passive recreation without structures and renewable energy reuse projects.
    • Permits by rule for small transfer stations, with the threshold set at either 50 tons per day or 100 tpd.
    • Self certification of transfer station permit renewals, with presumptive approval, where no modifications have been made and the facility has a track record of compliance.
  • Third Party Inspectors for Active Landfills.  MassDEP proposes to create a list of certified solid waste inspectors and annually assign each to a specified number of random inspections of the 24 active landfills, at the permit holder’s expense, as an expansion on the existing condition in most solid waste landfill permits for a private annual compliance inspection.  The results would be provided to MassDEP, who could target its own resources appropriately.  While not proposed at this time, MassDEP notes that it will in the future “explore whether to shift some aspects of its solid waste regulatory program to the M.G.L. c. 21E licensed site professional model.”

IV.       Waste Site Cleanup

  • Activity and Use Limitations.  MassDEP proposes to simplify the AUL forms and streamline public notice procedures.
  • Eliminate Tier I Permits and/or Streamline Tier Classification.  MassDEP proposes to streamline or potentially eliminate the numeric ranking system, tier classification and permitting process, as other mechanisms are in place to address the relative priority or significance of sites (e.g., imminent hazards).

V.        Other Areas

  • Self-Certification for Permit Renewals.  MassDEP proposes to streamline some permit renewals by providing for presumptive approval upon self-certification where no changes have been made and the permittee is in compliance.  MassDEP is seeking public comment on which permits are appropriate for this reform.
  • Fees.  MassDEP is exploring increasing fees on activities that have the highest environmental impact as a way of reducing those activities. 
  • E-Filing.  MassDEP is also considering ways of creating incentives to (or perhaps require) e-filing of applications
  • Asbestos Abatement.  MassDEP seeks to shift its resources into the highest priority asbestos matters by evaluating the following initiatives:
    • creating more flexible requirements for abatement of non-friable asbestos at owner-occupied residences;
    • providing greater flexibility to businesses and institutions by establishing operation and maintenance standards for small scale abatement projects; and
    • providing greater clarity and a mechanism for business and institutions to receive alternate work practice permits where traditional abatement measures are not feasible.

MassDEP also specifically seeks comments in response to the following questions:

  •  Are there regulatory reform ideas that have not been included in this Action Plan that should be considered by MassDEP?
  • Should any of the proposed reforms be revised, eliminated, or pursued in a more expansive or limited manner?
  • What, if any, additional safeguards, auditing, or public process should be included as these reform ideas move forward?
  • Do the proposed reforms have any impact on environmental justice considerations?

MassDEP is expecting to act quickly.  MassDEP has requested all comments by November 21st.  As most of these reforms require regulatory changes, MassDEP hopes to propose draft rules quickly with the goal of implementing these measures through regulatory changes by July 1, 2012, the beginning of Fiscal Year 2013. 

For further information regarding this regulatory reform initiative, please contact Jeanine Grachuk at jgrachuk@bdlaw.com or Marc J. Goldstein at mgoldstein@bdlaw.com.