MassDEP’s 2014 reforms to the solid waste regulations include new requirements for third-party inspections of solid waste facilities. These changes reflect an effort by MassDEP to privatize the inspection and policing function, shift costs to the private sector to reduce MassDEP costs, standardize inspection frequencies, adopt performance standards, and require consistent reporting. These new requirements take effect on January 1, 2015. 

While the announced goals of MassDEP’s regulatory reform process when it was first begun were to (i) streamline permitting and other processes to boost efficiency and (ii) lighten the regulatory burden on businesses without lowering environmental protection standards, the results for the solid waste industry as of January 1 are far from the mark. Under the new program rules, the burden of policing the industry will shift substantially from MassDEP to third-party inspectors. The cost of this program is being transferred from the enforcement agency to the private sector, putting private sector enforcers into the field to conduct detailed inspections instead of MassDEP employees.

Under the new inspection program, only qualified third-party inspectors that are registered and listed on MassDEP’s website may conduct inspections of solid waste facilities. MassDEP’s goal with the new registration requirements is to provide standardized, high quality inspections and greater accountability. To qualify as third-party inspectors, individuals must submit a qualifications statement application to MassDEP, documenting how they meet certain eligibility requirements, which MassDEP staff must then review and evaluate. If MassDEP approves an application, the third-party inspector must then attend a MassDEP waste ban training session.  Renewal applications must be submitted to MassDEP every two years. The rules also contain a new appeals process for inspectors who are denied registration by MassDEP.  Qualified third-party inspectors as of September 10, 2014 are posted on the MassDEP website here.

Under the new rules, third-party inspections must occur at specified intervals to monitor both operations and maintenance (O&M) and waste ban compliance. The inspection frequencies generally far exceed the frequency at which MassDEP previously conducted inspections.

Inspection frequency requirements are based on inspection type (i.e., O&M or waste ban inspections), facility type, and facility size:

  • For O&M inspections
    • once every 2 months for active landfills;
    • once every 2 years for closed landfills;
    • twice per year for non-C&D handling/transfer stations that accept 50 tons or more of waste per day;
    • once per year for non-C&D handling/transfer stations that accept less than 50 tons per day;
    • once each quarter for all C&D facilities; and
    • once each quarter for all combustion facilities.
  • For Waste Ban Inspections
    • once every 2 months for active landfills;
    • twice per year for non-C&D handling/transfer stations that accept 50 tons or more of waste per day;
    • once per year for non-C&D handling/transfer stations that accept less than 50 tons of waste per day; 
    • once each quarter for all C&D facilities; and
    • once each quarter for all combustion facilities.

The number of loads to be inspected by third-party inspectors depends on facility size: 4 loads for facilities permitted at 1-99 tons/day; 8 loads for facilities permitted at 100-299 tons/day; 12 loads for facilities permitted 300-499 tons/day; 16 loads for facilities permitted at 500-999 tons/day, and 20 loads for facilities permitted to accept more than 999 ton/day.

All third-party inspections must be unannounced and must be held on random dates. The third-party O&M inspection requirements apply to all facilities, while there are two minor exemptions from the waste ban inspection requirements: handling facilities that do not accept greater than 5 cubic yards of solid waste and facilities that participate in the Class II Recycling Program (i.e., certain waste to energy facilities that qualify for the renewable energy portfolio standard – Class II program). 

Inspectors and facility owners must report their inspection results to MassDEP and the local board of health on several new standardized forms. Currently, MassDEP envisions that each facility will need to periodically complete and submit the following documents: a third party waste ban compliance inspection form, a third party load observation inspection form, a third party operation and maintenance inspection form, a completed inspection report for each inspection, and a third party inspection corrective action plan and schedule form. MassDEP contemplates that several of these forms will need to be submitted in both electronic and hard copy form, and several of the documents will need to be certified by both the inspector and the owner of the facility. Where deviations are observed during required inspections, the facility owner will need to document the deviations and state how and when the deficiencies will be corrected. Drafts of the many new required forms are being discussed now with a variety of stakeholders and final template versions are expected to be posted on MassDEP’s website in the near future. 

The new inspection requirements represent a dramatic shift of government oversight responsibility from the enforcement agency to individual facility owners, and a significant increase in work load and paperwork requirements for solid waste facility owners.

During the public comment period, both environmental advocates and facility owners filed comments objecting to this change in approach, and asking that MassDEP retain its inspection responsibilities, but MassDEP pursued this change in any event. MassDEP now has a new third-party inspection program to administer, and facility owners will soon need to implement these significant new requirements. MassDEP will then need to review and respond to hundreds of new filings every year. It remains to be seen whether this new program will achieve MassDEP’s primary regulatory reform goal of streamlining its processes to boost efficiency. It most certainly will not accomplish the secondary goal, which was to lighten the regulatory burden on businesses.