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Streamlining Success
Meeting the Governor's Call for 'Regulation at the Speed of Business,' MassDEP is Issuing 99% of Permits Within Required Deadlines
The streamlining initiative Governor Deval Patrick announced early in 2007 for Massachusetts challenged state officials to adopt "regulation at the speed of business" and targeted, in part, environmental permits. One year later, significant changes at MassDEP have already been made with still more in 2008, and beyond.
The Governor's mandate required that changes must hold fast to the state's core principles of protecting the environment and ensuring citizens continued access to clean air, water and soil.
Initially, in February 2007, MassDEP proposed regulations reducing by 20 percent the timelines for the majority of permit categories, with a money-back guarantee for all permit applicants should the percent of all its permit decisions in 180 days or less. The results so far: MassDEP has issued permit decisions within the specified expiration of time on 99 percent of applications.
Also, in 2007 MassDEP targeted four important permit areas for streamlining: Air Quality, Chapter 91, Groundwater Discharge, and Wetlands. MassDEP chose these four categories to balance the need to capitalize on significant economic development opportunities with the need to streamline and remove delays while maintaining the state's core principle of continued environmental quality.
Air Quality
Regulatory reform by MassDEP over the last decade has already reduced air quality permit application reviews, but industry and consultants continue to identify this sector as more time-consuming aspect in the overall state-level approval process.
Concerns focused on the processing time and costs, but also the determinations on when air pollution sources should be controlled using Best Available Control Technology (or BACT). Although BACT has the environmental benefit of forcing the adoption of advanced technology, it is not always feasible or necessary. It does, however, result in significant costs to install, so BACT can be a resource intensive and contentious process.
MassDEP's strategy for air permits has meant more applicants qualify for what is a more simplified permit (also known as Limited Plan Application); more permit holders can consolidate their previously-issued permits and streamline their associated reporting requirements, and all applicants now have a clearer framework that enunciates options for performing BACT analysis and simpler procedures for administrative amendments.
Chapter 91 (waterfront structures)
Chapter 91 licensing is an integral part of economic development projects located in the Commonwealth's filled and flowed tidelands. Developments on and near the water will always pose unique regulatory challenges, but because of their importance, will continue to be a focus of streamlining efforts.
MassDEP has sought a complete and thorough review to identify process and regulatory improvements that can reduce the timelines associated with licensing decisions while still protecting and ensuring public access to waterfront resources.
To maintain Massachusetts' high standards of protection, and ensure that this critical aspect of our state's identity is preserved, the Chapter 91 regulations are now undergoing review by the legislature.
Chapter 91 is among the oldest set of regulations, and as the waterfront changes and evolves over time, so will the rules and regulations that cover them. The challenge MassDEP faces is to strike the right balance among many competing interests in ways that don't bog the process down, but continue to protect and promote the wise use of the waterfront in ways that enhance opportunities for civic engagement and commerce.
Groundwater Permits (Wastewater)
To streamline the existing permit process and reduce the time it takes to obtain a groundwater discharge permit, MassDEP found and removed several obstacles that were unnecessary, in an effort to enhance public protection.
For instance, under the proposed streamlined program, a proponent will file a separate application seeking review and approval of the hydrogeological evaluation and authorization to apply for an individual permit or coverage under a general permit.
This means that upon completion of this step, the applicant will know what flow can be accommodated at the proposed site well before an application for a permit and commencement of the actual design of the treatment facility. This provides the applicant with much greater certainty earlier in the process.
In addition, MassDEP is eliminating the complex listing of specific effluent limits and the concurrent Ground Water Quality Standards and replacing both with a simple ironclad requirement that all discharges must meet the standards set forth in the Drinking Water Regulations (except as otherwise provided).
To promote public health and enhance environmental protection, MassDEP is eliminating a prior requirement that discharges connect to a centralized sewer system, if it is available. Instead, in order to promote "recharge" to the groundwater, and thus keep water local, the proposed regulations establish more stringent effluent limitations for discharges within the Zone II or Interim Wellhead Protection Area of a public water supply.
In addition, the new regulations would require applicants to produce an effluent that is virtually contaminant and pathogen free. With this high degree of treatment, wastewater can be reused to irrigate golf courses, parks and playgrounds, and provide water for toilet flushing, cooling water for power plants, and agricultural uses. The regulations also establish requirements for the use, sale, and distribution of reclaimed water.
States that face severe water shortages have also captured our attention, particularly in terms of their increased use of reclaimed water, which is defined as domestic wastewater treated to a level such that it is suitable for beneficial reuse. MassDEP expanded on the existing interim guidelines (first established in 1999) in order to expand allowable uses as well as the treatment and monitoring requirements.
Other states have safely expanded the use of reclaimed water, and given the increasing water demands in our state, combined with the need to protect stressed public water supplies, MassDEP believes that the attractiveness of reusing reclaimed water will continue to grow. In this way, Massachusetts can benefit from successful advances demonstrated across the nation.
Finally, in order to improve compliance, an operator responsible for maintaining a wastewater treatment facility will be held more accountable. Specifically, the operator will be held responsible for operating in accordance with the approved operations and maintenance plan and staffing plan specified in the facility's discharge permit. This revision strengthens the ability of MassDEP to take enforcement action against contract operators who fail to fulfill their operational responsibilities.
Wetlands (appeals)
The wetlands appeals process in 2004 implemented a pre-screening evaluation that led to quicker resolution of disputes. However, Governor Patrick directed MassDEP to reform the wetland appeal process even further. The Governor's directive resulted in MassDEP adopting streamlined wetland permit appeals regulations in October 2007. The regulations require the filing and sharing of information early in the proceedings, establish an early pre-screening conference and firm hearing date and a six-month timeline for the appeal to be resolved.
Since the new wetland appeal regulations were adopted, MassDEP has enjoyed great success in resolving wetland permit appeals. As of June 30, 2008:
- Sixty wetland cases have been through the prescreening process since October 31, 2007.
- Twenty-seven cases have been closed by MassDEP's Office of Appeals and Dispute Resolution.
- Twenty cases remain open at MassDEP, while 13 cases were stayed pending local wetland bylaw appeals.
The path forward
As with any regulatory changes, the ongoing streamlining and any future changes pertaining to MassDEP will be evaluated and refined against the backdrop of extensive public input and discussion. The streamlining of MassDEP's processes has been open and inclusive and we have encouraged participation from all stakeholders, from the general public and the regulated community to environmental groups and elected officials.
As MassDEP continues to push forward with streamlining, we will work to keep the public apprised of the changes, most notably via our web site, which provides the most-recent updates. Permit streamlining will result in applicants seeing increased efficiency and timeliness in the ways their permits are processed, and the general public will see that the quality of the air, soil, and water in the Commonwealth continues to improve.
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