COVID-19 Guidance
MassDEP and EPA Guidance on Waste Site Cleanups and Compliance during COVID-19 Emergency: Some Flexibility but Important Deadlines and On-Site Obligations Still Apply
During the COVID-19 declared State of Emergency in Massachusetts, the state’s reporting, testing, cleanup, compliance, enforcement and other matters under the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (G.L. c.21E) have been the subject of MassDEP Bureau of Waste Site Cleanup (BWSC) guidance documents. These guidelines are said to prioritize the health and safety of the public, agency staff, and cleanup parties.
MassDEP Issues FAQs for Conservation Commissions and Applicants for Wetlands Permitting Under the COVID-19 State of Emergency
(Revised July 27, 2020)
UPDATE: On July 1, 2020, the Governor issued COVID-19 Order No. 42, “Order Resuming State Permitting Deadlines and Continuing to Extend the Validity of Certain State Permits” which changes some of the deadlines discussed above. A summary of Order No. 42 can be found here. In essence, Order No. 42 replaces Order No. 19 which was the underpinning of several of the answers provided by DEP in its FAQ. Most notably, MassDEP’s deadline to appeal to itself an Order or Determination will now end on August 10, 2020.
Appeals Court Limits Private Enforcement of Waterfront and Tidelands Public Trust Rules
Property owners lack legal authority to use private litigation to enforce their public trust rights. Only the Commonwealth may enforce public trust rights in Commonwealth tidelands and other waterfront areas. That important principle was reinforced in the Massachusetts Appeals Court’s July 10, 2018 decision in the case of Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523 (2018).
Supreme Judicial Court Rejects Boilerplate Waiver of Wetland Protection Act's Deadline For Decision
An open-ended waiver of the state Wetlands Protection Act's twenty-one (21) day deadline for issuing a decision after the close of a public hearing is invalid when required as part of a Notice of Intent application package.
Summary of MassDEP's Regulatory Reform Revisions
The stated purpose of the MassDEP Regulatory Reform Initiative is to streamline the permitting process and maintain MassDEP's high standards of environmental protection. Following a review over two years, all MassDEP Bureaus changes to take effect soon, if not already.
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