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Summary of MassDEP's Regulatory Reform Revisions Featured

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Wetlands in Orange, MA Wetlands in Orange, MA ©2007 - Photo by Azurelink

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.

The ideas are to eliminate duplicative approvals and consolidate others; retain public process and appeals; create incentives for better environmental outcomes; provide alternative oversight methods and tools; streamline permitting mechanisms; and simplify for general understanding.

The announced schedule was wastewater regulations in November, wetlands and water quality certification in December, asbestos and solid waste in December, waterways in January, Massachusetts Contingency Plan (MCP) in March, and more in the meantime..

Here is a list of the main changes, starting with those already promulgated. These were adapted from recent MassDEP announcements and a presentation made by a MassDEP panel to REBA's Fall Conference. Please note that the reforms are subject to further changes before they are promulgated. Consult MassDEP and the web pages cited.

GREENHOUSE GAS TRADING PROGRAM (RGGI)

310 CMR 7.70: Massachusetts CO2 Budget Trading Program/Promulgation 12/6/13
These amendments implement changes to the RGGI program design elements resulting from the 2012 Program Review process described at: http://rggi.org/design/program_review.
MassDEP's Response to Comment document and the final amendments to 310 CMR 7.70 are at see http://www.mass.gov/eea/agencies/massdep/air/climate/massachusetts-and-the-regional-greenhouse-gas-initiative.html

WASTEWATER, SEPTAGE AND WATER QUALITY STANDARDS

310 CMR 32.00: Land Application of Sludge and Septage/Promulgation 12/6/13
257 CMR 2.00: Board of Registration of Operators of Wastewater Treatment Facilities 12/6/13
314 CMR 4.00: Surface Water Quality Standards 12/6/13

These changes create a presumptive approval process for renewals of Type I suitability approvals issued for the land application of wastewater sludge, and permit longer terms for all suitability approvals; expand an exemption from the certified operator requirements for small scale treatment (neutralization) typically performed at small labs, schools, universities and biotechnology businesses. When treating less than 100 gallons per day, a certified operator will not be required. There are site specific water quality standards for copper (12 segments) and zinc (1 segment) added to the surface water quality standards. The final regulations are at

http://www.mass.gov/eea/agencies/massdep/about/programs/massdep-regulatory-reform-initiative.html
http://www.mass.gov/eea/agencies/massdep/water/regulations/314-cmr-4-00-mass-surface-water-quality-standards.html

SEPTIC SYSTEMS, SEWER CONNECTIONS, AND INNOVATIVE TECHNOLOGIES

310 CMR 15.000: Title 5 of the State Environmental Code (Title 5

MassDEP proposes to streamline Title 5 reviews by 1) eliminating duplicative approvals by MassDEP of certain on-site wastewater and disposal systems when local boards of health, referred to as Local Approving Authorities, also issue the same approvals; and 2) authorizing MassDEP to contract out to third parties the evaluation of innovative and alternative on-site wastewater treatment systems.

MassDEP will continue to review and approve the following types of systems:

Systems 10,000 gallons per day (GPD) or greater (310 CMR 15.003(2));
Systems for Commonwealth agencies and the federal government (310 CMR 15.003(2)); and
Systems for schools proposing to alter flow, which require a Variance (310 CMR 15.416).

MassDEP intends to eliminate the requirement for its involvement in determinations whether facilities asserted to be in separate ownership are in fact a single facility (310 CMR 15.011). MassDEP will continue to provide local boards of health with technical assistance on complex projects. Additionally, in cases involving sensitive resources or unusually complex projects, 310 CMR 15.003(2)(c) provides MassDEP with authority to intervene in the local permitting process.

Innovative and Alternative Technologies

MassDEP will maintain final approval authority on all innovative technology systems, but utilizing a third party agent for on-site wastewater treatment technologies. MassDEP will continue to set standards and provide oversight in the review of new wastewater treatment technology proposals, and will oversee the work of the authorized agent. MassDEP will develop an auditing protocol to ensure effective results are demonstrated in the field.

The approval of on-site installation and use of innovative alternative technologies will remain unchanged. Local boards of health will approve most systems; MassDEP and the local board of health will approve piloted systems.

314 CMR 2.00, Permit Procedures

These regulatory revisions will harmonize the public notice requirements for state surface water discharge permits with EPA's procedures for issuing National Pollutant Discharge Elimination (NPDES) permits, in response to a request for these changes by EPA. The revisions will eliminate public notice in newspapers for other draft state discharge permits (groundwater, reclaimed water, and sewer connection and extension permits), relying instead on notice in the Environmental Monitor. This should result in a more streamlined process for MassDEP as well as for regulated entities, including in particular municipalities.

314 CMR 7.00, Sewer Extension and Connection Permit Program

The regulations at 314 CMR 7.00 require a permit from MassDEP for connections to, and extensions of, local sewer collection systems. Prior to applying for a permit from MassDEP, an applicant must first obtain a local permit from the Department of Public Works, Sewer Department, or Wastewater Treatment Facility. MassDEP approval typically does not apply different criteria or add significantly different conditions than these local permits. In all cases, the MassDEP permit requires compliance with the local permit. MassDEP proposes eliminating the current duplicative state permitting requirements for sanitary and industrial connections to, and extensions of, public sewer systems. These permitting requirements will continue to be regulated at the local level.

314 CMR 12.00, Operation. Maintenance and Pretreatment Standards

MassDEP will focus its attention on public health, safety and environmental issues associated with the collection and treatment of wastewater, such as infiltration and inflow (l/l), capacity issues at treatment facilities and within collection systems, sanitary sewer overflows, and industrial pretreatment programs. This will be accomplished by changes to 314 CMR 12.00 that will require all municipalities to incorporate the following into their Operation and Maintenance Program:
an 1/l identification and elimination program;
sanitary sewer overflow reporting requirements;
sewer system evaluations;
offset programs for systems or portions of systems that experience chronic overflows or where evaluation identifies a potential problem area; and
pretreatment standards for industrial discharges;

WATERWAYS REGULATIONS: 310 CMR 9.00

MEPA Permitting Timeline/Chapter 91.

This regulatory modification streamlines the application review timeline for large projects subject to review under both the Massachusetts Environmental Policy Act (MEPA) and under MGL c. 91 (Waterways) described at 310 CMR 9.11(2)(b)(4) and eliminates the Summary Table of Application Review Schedules at 310 CMR 9.11. These revisions will save 25 application review days by allowing the MassDEP Waterways Program to begin reviewing an application prior to receipt of the Secretary's Final MEPA Certificate. The regulations also clarify the timeframe within which a public hearing must be held.

General License for Small Docks and Piers.

The Legislature amended M.G.L. Chapter 91 in 2011 by inserting a new section 18C that allows MassDEP to create a General License for non-commercial water-dependent small-scale docks, piers and similar structures that are accessory to a residential use. The General License creates a new certification procedure for a large number of small structures to be authorized under M.G.L. Chapter 91 while protecting and preserving public rights in tidelands. The General License will save time for applicants and the Department by eliminating individual technical review and the requirement for the Governor to sign individual licenses for small-scale noncommercial structures.

Adoption of the General License will include a public comment period and appeal rights. The final General License will be signed by the Governor and recorded by MassDEP in all Registry of Deeds in the Commonwealth. An individual project proponent may submit a Certification to MassDEP that a particular project is eligible for coverage under the General License, after opportunity for local input from the Planning Board and local zoning officials.

WETLANDS PROTECTION ACT REGULATIONS: 310 CMR 10.00

Buffer Zone Minor Activities. These changes exempt certain minor activities from the Wetlands Protection Act if they are proposed solely in the buffer zone of wetland resource areas and are related to highway safety operation and maintenance work and utility installation work. These exempt activities will be added to the existing list of minor exemptions located in the wetlands regulations at 310 CMR 10.02(2)(b).

Combined Applications and Combined Permits. The regulatory amendments to 310 CMR 9.00, 310 CMR 10.00, and 314 CMR 9.00 streamline review mechanisms for permitting projects subject to multiple and different regulatory requirements. The revisions will allow a project applicant to file a Combined Application and receive a Combined Permit from MassDEP for as many as three separate required permits. In order to preserve the authority of conservation commissions to approve projects under the Wetlands Protection Act, in many instances, a Combined Permit from MassDEP will only incorporate the requirements of Chapter 91 and the 401 Water Quality Certification Regulations. If a Superseding Order of Conditions is requested of MassDEP, the Combined Permit may issue under the Wetlands Protection Act, Chapter 91 and 401 Water Quality Certification. The Combined Application may not serve as the application for a Chapter 91 license or permit for a non-water dependent use, an application for a small structure accessory to a residence under the simplified process established by 310 CMR 9.10, or Certification under the General License issued in accordance with 310 CMR 9.29 (currently being proposed as part of a separate regulatory reform effort).

General Permit for Ecological Restoration.

The amendments to the Wetlands Regulations (310 CMR 10.04, 310 CMR 10.05(6), 310 CMR 10.05(7)(c), 310 CMR 10.05(7)(i), 310 CMR 10.05(7)(j)2.b.v.) streamline the permitting process for qualifying projects that require a wetlands approval - the general permit. Since a project authorized by a general permit is exempt from the environmental review process under the Massachusetts Environmental Policy Act (MEPA), a proponent can save substantial time and money by applying for a general permit. Because a general permit contains standard conditions, a general permit also makes the permitting process more predictable for the applicant.

The general permit amendments to the Wetlands Regulations apply only to qualifying ecological restoration projects. However, the revisions to the Wetlands Regulations give MassDEP the ability to create additional general permit categories in the future. The six categories of qualifying projects proposed at (310 CMR 10.11-310 CMR 10.14) are:

  1. dam removal;
  2. freshwater culvert repair or replacement;
  3. culvert replacement to eliminate or reduce tidal restrictions;
  4. stream daylighting;
  5. restoration of rare species habitat; and
  6. improvement of fish passage.

A companion revision to the 401 Water Quality Certification Regulations (314 CMR 9.03(8)) exempts an ecological restoration project eligible for a general permit from the requirement to apply for a 401 Water Quality Certification in accordance with 314 CMR 9.00, provided the project does not require an individual 404 permit from the U.S. Army Corps of Engineers.

Stream Crossing Standards.

In 2006, the River and Stream Continuity Partnership published the guidance document "Massachusetts River and Stream Crossing Standards" which establishes standards to ensure that stream crossings do not interfere with the passage of fish and wildlife or cause flooding. Since that time, conservation commissions and MassDEP have been applying these standards when reviewing certain projects that include stream crossings, including ecological restoration projects. The revisions to the Wetlands Regulations (310 CMR 10.24(10) and 310 CMR 10.53(8)) and the 401 Water Quality Certification Regulations (314 CMR 9.06(2)(b) and 314 CMR 9.07(l)(a)) incorporate the Stream Crossing Standards set forth in the guidance This amendment will ensure that ecological restoration projects meet their restoration goals without causing flooding of the built environment.

Limited Project Status for Renewable Energy Projects.

MassDEP's regulatory changes to facilitate and streamline review and permitting of access roadways for the development of renewable energy projects in areas subject to the Wetlands Protection Act. The regulatory amendments to 310 CMR 10.00 include the addition of two new limited project sections: 310 CMR 10.24(7)(c)7 for work in certain coastal wetlands, and 310 CMR 10.53(3)(t) for work in inland wetlands. "Limited projects" refer to the class of coastal projects (described at 310 CMR 10.24(7)(c)) and inland projects (described at 310 CMR 10.53(3)), that may be permitted at the discretion of the conservation commission or the MassDEP after considering the magnitude of the alteration, the availability of reasonable alternatives, the extent to which adverse impacts are minimized, and the extent to which mitigation measures (e.g. replication or restoration) are provided.

The regulations create a new limited project category, allowing for a variation from general wetlands protection performance standards, for the construction of a new access roadway, or the repair and replacement of an existing access roadway, needed to transport equipment to renewable energy project sites. Such projects may be allowed in certain inland and coastal resource areas. Such limited projects may be permitted if designed and constructed in a manner that avoids, minimizes and mitigates adverse impacts to resource areas and complies with the specified conditions, to the maximum extent practicable.

Exemptions for Regulated "Resources" Created by Stormwater Management Structures.

MassDEP regulatory changes clarify that wetlands arising from the creation of stormwater management systems do not constitute new wetland jurisdictional areas. In addition, the changes allow the maintenance of stormwater systems that have been previously approved to be modified or improved without additional review, provided that documentation is supplied demonstrating that the system is not within a naturally occurring wetland resource area, and that any changes to the stormwater management system occur in accordance with the provisions of the Act, and improve upon or maintain the capacity, pollution attenuation, and flood control properties of the stormwater management system.

Other Significant Changes.

Regulatory revisions will make some important additional changes, corrections and clarifications. They fit into the following categories: (1) streamline the abutter notification requirements in the Wetland Regulations in response to recently enacted legislation; (2) revisions to the Wetlands Regulations, the 401 Water Quality Certification Regulations, and the Waterways Regulations allowing improvement dredging to maintain a historic navigation channel in an Area of Critical Environmental Concern (ACEC) in accordance with an approved Resource Management Plan (RMP); (3) revisions to clarify when a detailed habitat evaluation is required under the Wetlands Regulations; (4) revisions to streamline the 401 Water Quality Certification regulations by eliminating the need for a variance for certain public water supply improvement projects, ecological restoration projects and infrastructure projects, that propose to discharge fill to certain Outstanding Resource Waters (ORWs), and (5) modifications to some definitions in the Wetlands Regulations and the insertion of some additional definitions.

SUPERFUND OIL AND HAZARDOUS MATERIALS (OHM) UNDER 21E

310 CMR 4.0000, Massachusetts Contingency Plan Amendments:

The MCP amendments in MassDEP's Regulatory Reform Initiative will make noteworthy changes to key terminology, site classifications, AUL procedures, site closures, NAPL requirements, and cleanup standards. Specifically, the proposals:

Eliminate Tier I Permits and streamline the disposal site classification system;
Streamline Notice of Activity & Use Limitation (NAUL) requirements (NAULs are deed notices put
in place to limit future use of properties where residual contamination remains after cleanup);
Improve site closure-related requirements by clarifying source control provisions, facilitating closure
at sites with active exposure pathway elimination measures, and providing transparency in
documenting any conditions relevant to maintaining closure or site redevelopment;
Revise definitions, assessment and closure requirements related to Nonaqueous Phase Liquid (NAPL)
to reflect updated science on the behavior of NAPL in the subsurface environment; and
Revise numeric cleanup standards and notification thresholds by incorporating the most recent chemical toxicity information for a number of chemicals.

For more information, see MassDEP's Reg Reform Blog...

ASBESTOS STANDARDS AND PROCEDURES

310 CMR 7.15. Asbestos Regulation

MassDEP is revising 310 CMR 7.15 to:

Require owners/operators of facilities containing asbestos to conduct surveys before demolition
or renovation activities start, to identify all materials containing asbestos;
Clarify that all materials containing 1% or more asbestos that may be affected by a demolition
or renovation must be properly abated before demolition or renovation starts;
Streamline asbestos abatement work practices and approvals for on-going projects,
Establish procedures for small "incidental maintenance" projects;
Establish a permit process for asbestos abatements that require specialized work practices as a result
of emergency and other unusual conditions;
Exempt homeowners who are conducting their own work that involves non-friable asbestos in their
residences from notification requirements, providing some regulatory relief that has been available
in EPA's rule as well as in many other states.

These revisions align asbestos removal work practice requirements with the Massachusetts Department of Labor Standard's asbestos regulations and make the regulations clearer and more consistent with EPA's standards contained in its Asbestos NESHAP by incorporating existing federal requirements.

For more information, see MassDEP's web site...

LANDFILLS, TRANSFER STATIONS. AND OTHER SOLID WASTE FACILITIES

310 CMR 19.000, Solid Waste Facility Regulation

MassDEP is streamlining 310 CMR 19.000 by streamlining aspects of MassDEP permitting for transfer stations, certain post-closure uses at closed landfills, and management of "Special Wastes"; and standardizing and expanding the solid waste program's use of third party inspections and reviews at solid waste management facilities, and standardizing certain other program requirements that have traditionally been dealt with in facility permits.

For more information, see MassDEP's web site...

Read 6852 times Last modified on Thursday, 13 August 2015 17:37
Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor Legere & Stevens,PC (formerly McGregor & Legere PC). The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

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