The Massachusetts Department of Environmental Protection ("DEP") is seeking public comment through December 5, 2011 on a Draft Action Plan for Regulatory Reform (the "Draft Plan"). The Draft Plan was prepared to help the agency address a significant drop in budget and staffing. Since 2002, DEP has cut its employee count from 1,200 to about 840 full-time equivalents, and its budget has been similarly curtailed. The Draft Plan is one element of a strategy that DEP hopes will help it operate with limited resources. The other elements are comprehensive upgrades to DEP's information technology systems and revamping its management structure.
The Draft Plan sets out 21 possible reforms that the agency is considering. These are described in conceptual terms. If adopted, many proposals would require additional refinement and, in some cases, regulatory change in order to be implemented. The proposals are targeted primarily at the wetlands, waterways, waste water disposal, solid waste, and contaminated sites cleanup (Chapter 21E ) programs. In general, the reforms do not involve federal-required programs.
LIMIT DUPLICATIVE REVIEW
The Draft Plan covers a range of topics, such as reducing duplicative review, standardizing permit terms, streamlining some permit processes, and even eliminating certain permits. For example, one proposal calls for a common application for approvals under coastal wetlands, waterways (Chapter 91), and water quality certification programs. Moreover, when a permit that is issued under one of these programs adequately addresses concerns of another, DEP would expedite issuance of the related approvals.
In the waste water arena, the Draft Plan proposes to eliminate state approvals for shared septic systems and septic variances, leaving these matters instead to local boards of health. However, DEP would retain the right to review applications and take over the permitting for projects located near sensitive environmental resources. Similarly, the Draft Plan proposes to eliminate DEP sewer connection and extension permits (which are considered duplicative of local requirements). This change would allow DEP to focus on more significant sewer issues, such as capacity, infiltration/in-flow, sewer overflow, and industrial pre-treatment. The agency would retain the right to require individual permits in specific cases involving significant public health or environmental risks.
For wetlands, among other changes, DEP would step back from routine review of notices of intent and would shift its focus to superseding orders of conditions. Only where a project could affect significant wetland resources would DEP take an active role in the local proceedings.
STANDARDIZE PERMIT LANGUAGE
The Draft Plan proposes establishing a standard duration for waterways licenses issued for nonwater dependent uses. Currently, duration of the license is negotiated on a case-by-case basis between DEP and the applicant. The Draft Plan also recommends greater use of general licenses and similar devices. Under the proposal, general (i.e. standard) waterways licenses would be used for non-commercial small docks and piers. Similarly, DEP would issue a general permit for projects in the outer portion of the wetlands buffer zone. Likewise, a permit-by-rule would be developed for certain solid waste facilities (small transfer stations and certain passive uses of closed landfills).
EXPEDITE PERMIT REVIEW
Some projects could become exempt from permit requirements or benefit from expedited review. Thus, the Draft Plan recommends exempting storm water management structures that were created before 1996 from wetlands regulation if they meet certain storm water performance standards. (Post- 1996 structures are already exempt.) Further, DEP would expedite wetlands review at the superseding order of conditions stage if the only impacts are to the buffer zone or the project is a small residential proposal. Renewable energy projects would be given limited project status (and thereby obtain quicker review) under the wetlands regulations. And innovative clean energy projects would not be subject to coastal zone regulations, at least on a trial or pilot basis. DEP would impose monitoring and reporting safeguards, but otherwise allow such projects to proceed.
Other efforts would seek to decrease permitting timelines and eliminate delays. For example, current rules for waterways licensing postpone DEP review until after completion of the Massachusetts Environmental Policy Act (MEPA) process and require that a wetlands order of conditions issue before the waterways license. The Draft Plan would eliminate these restrictions. Likewise, DEP would take steps to expedite the permitting of projects that are designed to restore ecological resources.
THIRD-PARTY REVIEW AND SELF-CERTIFICATION
DEP also is considering expanding use of thirdparty review and self-certification in place of direct agency involvement. The Draft Plan calls for thirdparty review for the approval of innovative and alternative Title V (septic system) technologies. Moreover, third-party assessors would evaluate facilities with permitted ground water discharges, subject to DEP audit. The permittee would retain the assessor. These evaluations (together with targeted inspections by DEP) would replace DEP's routine annual inspections of all ground water discharges. (The current round of inspections every five years would continue.) The Draft Plan also proposes using third-party assessors for annual inspections of active landfills.
In addition, the Draft Plan recommends presumptive approval for renewal of transfer station permits, where the facility has been in compliance and the permittee certifies that operations have not changed. The Draft Plan also seeks suggestions of other programs where selfcertification could be used.
CHAPTER 21E CHANGES
DEP is considering several changes to the contaminated sites clean-up program. Specifically, the Draft Plan proposes eliminating numeric rankings, tier classification, and Tier One permits. The agency believes that other information, such as imminent hazard determinations, is available to determine site priority. Furthermore, DEP would look to streamline requirements governing activity and use limitations (AULs) under the clean-up program.
The agency is accepting comments on the Draft Plan through December 5, 2011, and it expects to issue a final action plan and then implement reforms by July 2012. However, to the extent regulatory changes are required, the DEP will follow the normal proposal and comment process. DEP is encouraging additional recommendations for the action plan in addition to seeking comments on its own proposals. If you have any questions regarding the Draft Plan or need assistance submitting comments, please contact any of the attorneys listed on this advisory.