These changes and the policies behind them have been long in the works, since the MassDEP regulations lacked since 1978 and 1983 any specified performance standards for Land Subject to Coastal Storm Flowage. Now the science of climate change, the need for climate adaptation, mitigation and resilience, and the urgency of public health, safety, and the environmental considerations press the point.

These new rules will amend 310 CMR 10.00: Wetlands Protection, and 314 CMR 9.00: 401 Water Quality Certification for Discharges of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth; and 310 CMR 9.00: Waterways (including Tidelands and Great Ponds).

MassDEP is proposing to modify the Wetlands Protection regulations and the 401 Water Quality Certification regulations to accomplish two main objectives:

• Promote coastal resiliency against worsening impacts of storms, flooding, and sea level rise through
  • First-time standards to protect the coastal floodplain (Land Subject to Coastal Storm Flowage or “LSCSF”) from damage, which will help to maintain its natural capacity to protect structures and properties from storm damage and sea level rise
  • Provisions to support resilient shorelines, roadways, and water dependent uses and to allow scientific test projects to study effects of climate change
• Promote resiliency against increasing flooding, storm damage, and runoff pollution through updated stormwater management standards by
  • Incorporating current science and data for better rainfall estimates into updated stormwater management rules and replace outdated (60-year-old) precipitation data
  • Improving consistency between state regulations and EPA stormwater permit
  • Encouraging use of nature in design (“environmental design”) through seven cost-effective green design credits in lieu of built structures

View Wetlands Protection Regulations...

MassDEP is proposing the amendments to the Waterways regulations to ensure that licensing properly reflects the potential effects of climate change, including but not limited to, sea level rise, storm surge, and increased precipitation for existing and proposed structures along the waterfront. The proposed revisions will assist current and potential licensees by modifying certain requirements to prepare for sea level rise, while maintaining public access and other public benefits.

View Waterways Regulations...

Written Comments will be accepted until 5:00 p.m. on March 1, 2024. The Department encourages electronic submission by email to dep.waterways@mass.gov.
If you comment on the Wetlands and 401 rules, you must include"Wetlands-401 Resilience Comments" in the subject line. In lieu of electronic submittal, paper comments may be mailed to:

MassDEP - BWR Wetlands Program
Attn:Wetlands-401 Resilience Comments
100 Cambridge Street, Suite 900
Boston, MA 02114

If you comment on the Waterways rules, you must include ”Waterways Resilience Comments” in the subject line. In lieu of electronic submittal, paper comments may be mailed to:

MassDEP - BWR Waterways Program
Attention: Waterways Resilience Comments
100 Cambridge Street, 9th Floor
Boston, MA 02114

 

Earlier Executive Orders of Governor Baker set deadlines tied to the end of the State of Emergency. However, with the release of Governor Baker’s July 22, 2020 Executive Order, response actions must continue before there is a formal end to the State of Emergency.

On April 7, 2020, the MassDEP released a Fact Sheet on how to continue waste site cleanup operations and comply with the Massachusetts Contingency Plan (MCP). It was entitled “Guidance on Continuity of MassDEP Waste Site Cleanup Operations and MCP Compliance during COVID-19 State of Emergency.” It addressed IRAs, MCP Response Action deadlines, enforcement actions, AEPMMs, and securing disposal sites among other topics.

More recently, on July 22, 2020 MassDEP updated this guidance after the release of Governor Baker’s most recent Executive Order.

The BWSC Advisory Committee within MassDEP hosted meetings to address the Fact Sheet and updated guidance. BWSC Assistant Commissioner Paul Locke discussed how MassDEP is handling the situation and hopes the Potentially Responsible Parties (PRPs) and Licensed Site Professionals (LSPs) will handle it.

Several primary points emphasized during the Advisory Committee meetings included:

• The primary focus should be on balancing risks at emergency and imminent hazard situations with COVID-19 risks.
• MassDEP will “be compassionate” regarding slipped deadlines and other delays in routine work.
• Written notices of delay should be submitted to MassDEP through eDEP using transmittal form BWSC121: Notification of Delay.
• As of the July 22, 2020 update, BWSC expects that Routine Submittals will be made on or before the deadline.
• BWSC now expects persons who submitted a Notification of Delay to resume work necessary to meet the missed deadlines.
• If response actions cannot be conducted safely because of the COVID-19 State of Emergency, persons conducting response actions are encouraged to consult with MassDEP regional offices to discuss and develop an appropriate approach.

BWSC continues to maintain field deployment of emergency response staff. Non-emergency staff are teleworking and responding to email and voicemail. MassDEP expects that persons required to notify if a release occurs to continue to make all 2-hour, 72-hour, and 120-day release notifications during the State of Emergency.

Emergency Response staff of MassDEP will continue to respond to verbal notifications for IRAs and review written IRA plans. Verbal reporting and oral approvals allow LSPs and MassDEP staff to discuss the IRAs and any potential COVID-19 related concerns for response staff or other individuals. This includes any concerns that may affect the nature and/or timing of necessary activities.

As to written IRA plans submitted while the State of Emergency is in effect, if the BWSC elects not to issue an approval, conditional approval or denial within 21 days, an IRA plan is considered approved as submitted. MassDEP recommends following-up via email with the Regional Emergency Response Section Chief or staff lead for the IRA to notify them the IRA plan has been submitted.

Those conducting response actions under the MCP should “to the extent practical” continue to make response action submittals that are not otherwise addressed in the April 7, 2020 guidance. The electronic document service, eDEP, should be utilized when making response action submittals.

MassDEP understands that delays are inevitable due to postponed field work, reduced staffing, and other interruptions. However, parties who expect delays should notify MassDEP of same in writing, and should include the deadline(s) that will be missed and any measures taken to secure the disposal site during the period of work stoppage, if applicable.

Written notices of delay should be submitted through eDEP using transmittal form BWSC121: Notification of Delay. Included with the notification should be a list of deadlines expected to be missed, and a schedule as to when these deadlines will be met.

As of the July 22, 2020, order BWSC expects persons who submitted Notices of Delay to resume work necessary to meet the missed deadlines. MassDEP will be contacting those who submitted a Notice of Delay in writing to affirm the schedule of returning to compliance.

Please note that the BWSC intends to exercise enforcement discretion for failure to meet deadlines for Routine Submittals during the State of Emergency.

Other questions relating to operations subject to the MCP may be answered here: https://www.mass.gov/info-details/mcp-qa-covid-19-edition

In addition to the guidance discussed above, the BWSC issued guidance on the primary focus at cleanup sites. The BWSC Advisory Committee suggests the primary focus at cleanup sites should be balancing the risk of emergency and imminent hazard situations with the risks of COVID-19.

For instance, Active Remedial Systems with air or surface water discharges should be monitored in compliance with permitting or regulatory requirements, to the extent circumstances allow. However, consideration should be given to the suspension of operations if circumstances do not allow for adequate monitoring ensuring that any discharge does not result in adverse impacts – unless such termination would cause an imminent hazard.

All Active Exposure Pathway Mitigation Measures (AEPMMs), addressing vapor intrusion into buildings or a private drinking water supplies, are expected to be operated. AEPMMs addressing Imminent Hazards (IH) conditions should continue to be monitored for effectiveness. Again, consideration needs to be made in minimalizing COVID-19 exposure for response staff or building occupants. Monitoring that entails home or business entry when there is an absence of a potential IH condition should be suspended during the State of Emergency.

Speaking of on-site safety and health considerations, on April 10, 2020, the U.S EPA issued its own “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19.” That guidance dictates that decision-making as to continuing on-site cleanup activities shall continue case-by-case with the following taking precedence:

• Protecting the health and safety of the public, and maintaining health and safety of EPA staff and cleanup partners as the highest priority. Integral is adherence to any federal, state, tribal, or local health declarations and restrictions, to the extent possible.
• Maintaining EPA’s ability to prevent and respond to environmental emergencies or in any situation necessary to protect the public health and welfare and the environment.

The Massachusetts State of Emergency is still in effect as of this writing. It is vital to check in with MassDEP and the EPA for any changes or updates to these guidelines. Further, it is important for improvements to be made in standardized practices and communication systems so they do reflect these temporary measures and any revisions to them if the State of Emergency is extended.

The Massachusetts Department of Environmental Protection (“MassDEP”) issued its much-anticipated “MassDEP COVID-19 Wetlands FAQs for Conservation Commissions and Applicants” (“FAQs”)(copy available here) on May 5, 2020. They could not have come soon enough for commissions, project proponents, and others involved with wetlands permitting under the Massachusetts Wetlands Protection Act (“WPA”) and the state’s Wetlands Regulations (310 CMR 10.00) during the pandemic.

In the month since Governor Baker signed Chapter 53 of the Acts of 2020 (known by some as the “Municipal Relief Act” or by MassDEP as the “Emergency Act”), commissions and their agents, as well as applicants and their counsel, have sought answers from MassDEP to many questions raised while administering the WPA and the Wetland Regulations during the COVID-19 State of Emergency. The FAQs address those questions.

Most significantly, the new FAQs announce a much-needed mechanism to address a significant issue for applicants created by MassDEP’s interpretation of the various COVID-19 laws and orders. MassDEP takes the position that the 10-day appeal period for Orders and Determinations issued by commissions has not been tolled or extended and remains the same for anyone but MassDEP. MassDEP says that, as a state agency, its 10-day period to initiate its own request for a Superseding Determination or Order is tolled until 45 days following the end of the state of emergency (Please see “Update” at the beginning of this article). MassDEP calls such a request “interven[ing] on its own behalf.”

Given that the WPA says that work cannot begin pursuant to an Order or positive Determination until “all appeal periods have elapsed,” MassDEP’s interpretation could be problematic for applicants wanting to begin work, and may leave commissions wondering if an applicant starting work is legal.

To help resolve this predicament, the FAQs provide that an applicant who wishes to proceed with work and has not received any appeal within the 10-day period may request a letter from MassDEP indicating whether it plans to appeal to itself a Superseding Order or Determination. The applicant is to contact the appropriate Regional Office. This is a very helpful, useful new tool.

Notably, the FAQs do not address whether the 10-day period to appeal a Superseding Determination or Order within MassDEP for an adjudicatory hearing has changed. It would be helpful if it did.

The FAQs supplement, but do not supersede, MassDEP’s earlier “Guidance to Conservation Commissions and Applicants” which MassDEP first issued on April 17, 2020 after its offices were closed due to the COVID-19 emergency. The agency updated that guidance on May 5, 2020 at the time it issued these FAQs (the “Guidance”; a copy of which can be found here).

The revised Guidance essentially says, since MassDEP’s offices are closed to the public, one method under the WPA for delivering a copy of any wetland application is no longer possible – namely, hand-delivery.

MassDEP now asks applicants to e-mail a copy to the appropriate Regional Office, in addition to mailing a hard copy, since incoming mail is not being processed as quickly as before.

Likewise, MassDEP also asks conservation commissions to e-mail a copy of any Determination of Applicability, Order of Conditions, Order of Resource Area Delineation, Extension, Certificate of Compliance, Enforcement Order, or Emergency Certification. This is in addition to the hard copy that must be mailed to the agency.

The new FAQs cover a broader range of topics and in greater depth than the Guidance.

On the first page, the FAQs provide helpful wetland program contact information for each Regional Office and the Boston Headquarters Office.

The FAQs expand on procedures for submitting applications to commissions and MassDEP. Notably, MassDEP takes the position that the Emergency Act does not change any of the requirements under the WPA for filing with a commission or MassDEP.

MassDEP reiterates that, in addition to following the statutory requirements, a copy of any filing with a commission should be e-mailed to the appropriate MassDEP Regional Office.

As for filing a wetland application of any type with a conservation commission, the FAQs give the good advice of checking with the conservation commission directly, while noting that the Emergency Act does allow for electronic filing with the City or Town Clerk. Some attorneys maintain this e-filing is required to be a valid filing, others say it an available option.

Turning to the requirement to notify abutters at the same time as filing an application, the FAQs say that the Emergency Act does not relieve any abutter notification requirements under the WPA or Wetlands Regulations, while noting that there may be some on-line tools available to assist with the required certified mailing requirement.

Regarding scheduling of public hearings for Notices of Intent that have been filed, the FAQs reiterate the options available to commissions under the Emergency Act to reschedule, postpone, or proceed as usual with hearings and meetings. My colleague, Luke Legere, covers these options in detail in a helpful guidance, so I will not repeat them here.

The FAQs provide pointers on notices for such public hearings. They remind commissions and applicants to include the details required by not only the WPA and Wetland Regulations, but also the Open Meeting Law. If a hearing is to be held remotely, details should be included in the newspaper notice. If a commission chair reschedules a hearing, as is his or her prerogative during the emergency, notice should be provided on the City or Town Clerk’s website and also be disseminated electronically as much as possible.

Site inspections, according to the FAQs, should be conducted “if necessary” using appropriate social distancing and other safety measures established by the commission in consultation with the local board of health.

Turning to the actual paperwork involved in issuing permits or determinations, whether electronic signatures can be used or the conservation agent can sign on behalf of commissioners has been a vexing question for many commissions. The FAQs say that electronic signatures can be used to satisfy the WPA, but notes that the Emergency Act does not change the WPA requirement that a majority of commissioners must sign, so electronic signatures of a majority of commissioners must be on each Order, Determination, or Certificate of Compliance.

Each commissioner’s actual or electronic signature can be on the same page or on separate pages. If a commission has met and voted to allow its agent to sign on their behalf (such delegation is best recorded in the Registry), the FAQs say nothing in the WPA prevents an agent from inserting each commissioner’s electronic signature in addition to the agent’s actual signature.

Regarding recording of a permit, MassDEP recommends contacting the appropriate Registry of Deeds or Land Court office as their current practices vary. As the FAQs note, the Emergency Act suspends the requirement to record a permit to become effective, but it does not eliminate it.

Finally, the FAQs note that the Emergency Act tolls both the expiration date of any permit in effect as of March 10, 2020, as well as any deadline within that permit, to the end of the State of Emergency. This means that any permit set to expire, or any deadline coming due, during the State of Emergency is automatically extended by the length of time of the declared emergency. This means many permits will expire on that very date, and many permit deadlines will have to be obeyed as of that date.

Because under the Wetland Regulations a request to extend a permit must be made in writing 30 days before the permit expiration date, and the end of the emergency may not be announced sufficiently in advance do so, a wise applicant would submit an extension request sooner rather than waiting for the emergency to end and then being surprised to be too late.

The breadth, depth, and detail of MassDEP’s comprehensive set of FAQs are a welcome and a laudable effort. The FAQs bring relative certainty to some wetland permitting procedures and expectations during this uncertain time.

 

As we set sail, a brief description of the facts will provide context. Plaintiff is an association of owners of condominiums located at the landward end of Commercial Wharf in Boston. Defendant is the owner of an inn and marina at the seaward end of Commercial Wharf.

The condominium association filed a lawsuit to enforce property use restrictions benefiting it and burdening Boston Boat’s operations (regulating parking and deliveries, prohibiting commercial boats selling alcohol or allowing gambling, and limiting the “special events” to be hosted at the inn).

In response, the Boston Boat argued that the restrictions are void because they unduly restrict the public’s access and use of the Boston Harbor waterfront in violation of the public trust doctrine. Thus, the Defendant sought to enforce privately the rules governing the present and formerly filled public tidelands, and state licenses granted for use of the shorefront.

Readers may know that the public trust doctrine protects the public’s rights to fish, fowl and navigate in tidelands, defined by state statute as “present and former submerged lands and tidal flats lying below the mean high water mark.” G.L. c. 91, § 1.

This case involves “Commonwealth tidelands” (as opposed to “private tidelands”), which are defined as “tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose.” G.L. c. 91, § 1.

In rejecting the Boston Boat’s argument that the restrictions on use of its property violate the public trust doctrine, the Appeals Court made clear that litigation between private parties may not be used as a vessel to enforce public trust rights. Public trust rights may be enforced only by the Commonwealth and entities to which the state Legislature has delegated that enforcement authority. The Legislature has delegated that authority to the Massachusetts Department of Environmental Protection (MassDEP) through the Chapter 91 licensing process, but not to the Defendant or the Land Court.

The Appeals Court relied on what it described as “the Supreme Judicial Court’s consistent and strict enforcement of the express delegation requirement” to “reject the argument that the proper extent of public trust rights in a particular locus may be determined in private litigation such as the present case.”

Rather, the Court concluded that MassDEP had already weighed the conflict between private rights and public trust rights when it issued a Chapter 91 license to the Boston Boat’s predecessor in interest. Critically, that license required the Defendant to “allow public access on foot to its pier, unless it is determined that [Defendant] ‘does not have the legal right to provide such access.’ ”

Consequently, the Appeals Court ruled that MassDEP’s “special role in this area” makes that agency responsible for “determin[ing] whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights.”

A practical lesson for the real estate, land use, environmental, and law enforcement communities to take from this case is that a private party wishing to protect public trust rights in Commonwealth tidelands (by challenging the issuance of, conditions imposed by, or compliance with a Chapter 91 license) must utilize appropriate channels at MassDEP rather than bringing it up for the first time in court.

Waterfront owners are well advised to understand the public trust restrictions under which they own or lease their properties, subject to the easement-like reserved public rights on private tidelands, the sovereign rights of the public on public tidelands, and the powers and rules of MassDEP as the delegated entity chosen by the Legislature to license and enforce some of these.

At the time of this writing, the Appeals Court’s decision has not been appealed to a higher court.

That is one of several important rulings in a recent Massachusetts Supreme Judicial Court ("SJC") case known as Garrity v. Conservation Commission of Hingham, Mass. (2012).

The SJC first ruled that an applicant may waive the requirement that a conservation commission issue an order of conditions within twenty-one days after closing a public hearing on a notice of intent. However, the Court clarified that "any waiver must be voluntary in fact, its duration must be defined and reasonable in length, and notice of the waiver's duration must be a matter of public record, available to all interested persons."

The relevant facts are as follows. The plaintiff, Michael Garrity, filed a notice of intent ("NOI") under the Act and Hingham's non-zoning wetlands bylaw proposing construction of a pile-supported pier at his oceanfront property. The pier would extend from a land-based platform to a pile-held floating dock approximately 175 feet from the mean high water line.

The Commission's guidelines for filings included a checklist for a complete NOI package, which stated "THE HINGHAM CONSERVATION COMMISSION WILL NOT ACCEPT INCOMPLETE FILINGS. You must check off all items applicable to your project, sign & return to [the Commission] with the completed [NOI]." The checklist included a waiver form entitled "Hingham Conservation Commission Waiver of 21–Day Deadline" and the statement, "I have read and signed the [Commission's] Waiver of 21–Day Deadline." Garrity's NOI package contained a completed checklist and a completed waiver form.

The Hingham Conservation Commission (the "Commission") received Garrity's NOI on March 9, 2009, and scheduled a public hearing for March 23. Garrity requested a continuance of the hearing to April 6, to allow the Commission's peer-review consultant to review the NOI. The public hearing was held on April 6, and the Commission closed the public hearing that same night.

The Commission met again twenty-one days later, on April 27, and voted to deny Garrity's proposal under the town bylaw. An Order of Conditions was issued the following day, on April 28, twenty-two days after the public hearing closed.

Garrity appealed to MassDEP. MassDEP issued a Superseding Order of Conditions (the "SOC") allowing Garrity's project, based on the Commission's failure to act within twenty-one days of the close of the public hearing, as required by the Act.

Before MassDEP issued the SOC, the Commission issued an Enforcement Order to Garrity. The Enforcement Order was based solely on observations made by Commission members and staff. No formal hearing was held, and Garrity presented no evidence; the Enforcement Order was issued by the Commission's agent on June 22 and ratified by the Commission on June 29. It alleged that Garrity violated the Act by installing a stairway, deck, granite steps, and stepping stones within jurisidictional Resource Areas, without an order of conditions.

Garrity appealed the Order of Conditions and Enforcement Order to Superior Court. There, the Commission argued that Garrity had waived the twenty-one day deadline for issuance of a decision. The Superior Court judge determined that Garrity's waiver of the twenty-one day deadline was ineffective, and the SOC controlled. The judge found that the record contained insufficient evidence to support the Enforcement Order, and reversed it. The Commission appealed.

The SJC ruled that the Commission's checklist "would reasonably be understood by an applicant to require submission of a signed waiver form as part of the application." The fact that Garrity knew that other checklist items did not apply to his project was irrelevant. Taken together, the waiver form and checklist did not demonstrate a clear waiver of Garrity's rights.

Thus, the SJC rejected the argument that Garrity voluntarily submitted the form, ruling that the Commission failed to meet its burden of proving that the deadline had been waived. The Order of Conditions was void, and the SOC controlled.

Turning to the Enforcement Order, the SJC reversed the trial judge's decision. The SJC clarified that the proper standard of review for a certiorari review of an administrative, discretionary decision not made in an adjudicatory proceeding is the "arbitrary and capricious" standard. The trial judge had incorrectly applied the "substantial evidence" standard. A critical factor was that the "enforcement order [was] not the product of an adjudicatory proceeding involving the presentation of evidence. Rather, the order constitutes discretionary action by the commission pursuant to its undisputed authority to enforce the act within the town." Therefore, it was not for the Court "to determine whether the record contains substantial evidence to support the commission's action but, rather, to decide whether the commission exercised its discretion arbitrarily and capriciously." Garrity had failed to sustain his burden of establishing that the Commission acted arbitrarily and capriciously.

This case provides two important lessons for conservation commissions. First, an applicant may waive the requirement that an order of conditions issue within twenty-one days after closing a public hearing on a notice of intent, so long as the waiver is voluntary in fact, of a defined and reasonable length, and notice of the waiver's duration is part of public record. Second, the standard of review governing an appeal of an enforcement order will be directly tied to the proceedings leading to that order. If the order is issued following a meeting or public hearing where evidence is taken, the court will look at the record to determine whether the order is supported by substantial evidence. Otherwise, the court will consider whether the commission exercised its discretion arbitrarily and capriciously.

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...