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Policy No. COM-00.002 on the Expedited Review of Applications & Adjudicatory Hearings Approved By: Lauren A. Liss, Commissioner
Date: December 29, 2000
I. Applicability:
The following policy is effective as of the date above and is applicable to all DEP Programs. This policy supersedes Commissioner's Office policy # CO-93-1, dated April 15, 1993, revised as Com-95.002 on May 22, 1995, and Com-99.001, dated October 20, 1998.
II. Policy:
The Department of Environmental Protection (DEP) generally reviews applications for licenses, approvals, and permits ("applications") and schedules adjudicatory hearings in the chronological order in which they are received. Exceptions may be made:
1. For applications, where:
A) an application fee refund could occur if review of an application were delayed; or
B) an application is part of an EOEA-designated Strategic Environmental Technology Partnership (STEP) project for Innovative Technologies.
2. For applications or adjudicatory hearings that involve a project in which there are substantial public interest and the project:
A) (i) is expected to provide a major improvement in environmental quality, for example, cleanup of a hazardous waste site, a landfill capping project, or construction of municipal wastewater treatment facilities; or (ii) is expected to reduce or eliminate a serious threat to public health or safety, for example, the installation of a flood control structure, upgrading substandard or hazardous road intersections, or construction of publicly funded erosion control structures; or (iii) is expected to provide substantial public benefits, for example, construction of a public housing or public recreational facility; and
B) may be unreasonably delayed if a necessary application is reviewed or an adjudicatory hearing is scheduled in chronological sequence.
III. Procedure for Requesting Expedited Review:
1. Requests for expedited review must be written, must include the name and transmittal or file numbers of all DEP applications or docket numbers for matters subject to adjudicatory hearing for which expedited review is sought, and must indicate the time frame requested for a DEP final determination. Requests must clearly explain the urgency. For example, if substantial public interest is cited as the basis for the request, the request must explain, why the public interest will be negatively affected by review of the application or scheduling of an adjudicatory hearing in chronological sequence.
2. A request made by a private party for expedited review of a project that is expected to serve a substantial public interest must include certification from an appropriate public agency that verifies the urgency of the request and either confirms the substantial public interest to be served by the project; or the existence of a serious threat to public health or safety and the role the request will play in eliminating that threat; or confirms that the project is expected to provide substantial public benefit.
3. A request to expedite an adjudicatory hearing schedule must also include:
A) a description of the good faith efforts the requesting party has made to resolve the issues in dispute. As appropriate, this includes consideration or use of mediation or similar dispute resolution alternatives; and
B) for all adjudicatory hearings, provision by the requesting party for a stenographic transcription of the final hearing in the case, consistent with the "Commissioner's Directive on Time Limits and Timelines For Adjudicatory Appeals" dated July 5, 1995.
4. Requests should be submitted to the DEP office that would review the application or schedule the adjudicatory hearing in absence of the request. That office has authority to grant expedited review of applications or adjudicatory hearings that ordinarily fall within its responsibility.
A) For applications submitted to a DEP regional office, requests for expedited review should be addressed to the Regional Director of the issuing office.
B) Expedite requests for projects that involve only applications reviewed by Boston staff or the Watershed Planning & Permitting Section in Worcester should be submitted to the Assistant Commissioner for that Bureau.
C) Expedite requests involving cross regional review, Boston reviews involving permits from more than one bureau, and projects needing review by the Wall Experiment should be submitted to the Deputy Commissioner for Operations & Programs in DEP's Boston office.
D) Requests for expediting adjudicatory hearings should be submitted to the Commissioner or her designee in the DEP's Boston office.
IV. Administration of Policy:
1. A written determination whether to grant a request for expedited review shall be provided to all parties to the application or adjudicatory hearing. Notification shall also be provided to the DEP Deputy Commissioner for Operations and Programs and to the relevant Assistant Commissioner, Regional Director and Permit Manager. Notification of written determinations on requests for expedited adjudicatory hearings shall be provided also to the Deputy Commissioner for Administrative Services.
2. A decision to expedite review of an application or scheduling of an adjudicatory hearing shall not diminish DEP's thorough review or imply support for or an eventual approval of the proposed activity or project.
3. The technical review of an application reviewed under this policy will not be different in substance from applications reviewed in chronological sequence.
4. If approved for expedited review, the DEP will make a reasonable effort to render a determination within a specified time provided, however, that no decision dates can be guaranteed. The criteria for fee refunds established at 310 CMR 4.00 are unaffected by this policy.
5. Requests for expedited review will not be affected by the fee-status (fee-paying or fee-exempt) of the requesting party.
6. A written determination whether to grant a request for expedited review shall not give rise to an adjudicatory proceeding pursuant to M.G.L. c. 30A or any other right of further review. |
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