11.09: Special Review Procedures
(1) General. With the consent of the Proponent, and after consulting with any Participating Agency, the Secretary may establish a Special Review Procedure for a Project, notwithstanding the other provisions of 301 CMR 11.00. Among other things, a Special Review Procedure may provide for: review documents other than ENFs and EIRs and other periodic reports to be filed and reviewed; shortened or extended review periods; review of a Project in phases; lapses of time between review documents not requiring a Notice of Project Change; coordination or consolidation of MEPA review with other environmental or development review and permitting processes; and establishment of a CAC. The final review document called for in a Special Review Procedure shall be considered a final EIR. A Special Review Procedure may be appropriate, for example, for reviewing a proposed program, regulations, policy, or other Project in which there is more than one Proponent or more than one Participating Agency with a significant role, or a Project that is undefined or is expected to evolve during MEPA review, or a Project that may benefit the environment if there is early Commencement of a portion of the Project. The Secretary may establish a Special Review Procedure for a Project regardless of its size or complexity.
(2) Establishment. The Proponent shall ordinarily request a Special Review Procedure prior to or when filing the ENF. In the certificate establishing the Special Review Procedure, the Secretary shall find that a Special Review Procedure shall serve the purposes of MEPA, including providing meaningful opportunities for public review, analysis of alternatives, and consideration of cumulative environmental impacts. The Proponent may file a Notice of Project Change after the Secretary's decision on the ENF to request a Special Review Procedure or to modify a previously established Special Review Procedure. The Secretary shall publish notice in the Environmental Monitor of: the establishment of a Special Review Procedure; any modification of a Special Review Procedure; the establishment of a CAC; significant events in a Special Review Procedure including meetings of the CAC; and the availability of review documents called for in a Special Review Procedure.
(3) Citizens Advisory Committee. When establishing or modifying a Special Review Procedure, the Secretary shall ordinarily (in the case of a Project undertaken by an Agency) or may (in the case of a Project undertaken by a Person) establish a CAC to assist in reviewing the Project.
(a) Membership of CAC. The CAC shall ordinarily consist of at least ten Persons appointed by the Secretary. The Secretary shall solicit nominations for the CAC when announcing its establishment or modification in the Environmental Monitor from those individuals and entities whose interests are affected by the Project, including any neighbor, neighborhood association, ad-hoc committee, business or non-profit organization, Agency, Federal, municipal, or regional governmental entity, or other organization. The Proponent shall be entitled to one representative on the CAC. The membership of the CAC shall be diverse in affiliation and experience and fairly represent a range of viewpoints.
(b) Role of CAC During Special Review Procedure. The CAC shall ordinarily participate in the Special Review Procedure by advising in the Secretary's establishment of the Special Review Procedure and review of review documents called for in the Special Review Procedure, and in the Proponent's review of detailed scopes of service for the consultant and preliminary review of the consultant work product.
(c) Meetings of CAC. The CAC shall establish its own schedule of meetings. The CAC may establish working groups on particular aspects of the Project or issues within the Scope. The CAC shall be entitled to meet monthly with the Proponent and its consultants and shall be kept informed of progress on any review document called for in the Special Review Procedure. The CAC may direct questions concerning the Special Review Procedure to the Proponent or the Secretary.
(d) Staff for CAC. The Secretary may require the Proponent to provide staff support to the CAC such as secretarial services, keeping of minutes, mailings, and arrangement of meetings. In the case of a Project undertaken by an Agency, the Secretary may require the Proponent to transfer funds to assist the Secretary in maintaining the CAC.
(e) Document Review by CAC. The Proponent shall ordinarily submit a draft of any review document called for in the Special Review Procedure to the CAC at least one month prior to filing the review document with the Secretary. The CAC may suggest changes or additions to the review document prior to the Proponent filing the review document with the Secretary. The CAC may file its comments with the Secretary prior to or when the Proponent files the review document with the Secretary. The CAC shall present a consensus in its comments to the extent to which its members have reached a consensus, although it may present the diverse views of its members when consensus has not or cannot be attained. The Proponent shall distribute any comments of the CAC or its members with the filed review document, provided that the CAC or its members file the comments with the Secretary prior to the Secretary publishing notice of the availability of the filed review document in the Environmental Monitor.
(f) Role of CAC After Special Review Procedure. After the Proponent files the final review document called for in the Special Review Procedure, the CAC may consult with the Secretary and the Proponent to determine whether it shall have any role in any future actions on the Project.
(4) Eligible Projects.
(a) Programmatic Review. The Secretary may establish a Special Review Procedure on the implementation of a program, the promulgation of new or revised regulations, or the development of a policy. Programmatic Review may be appropriate, for example, if the cumulative environmental impacts of Projects requiring individual Agency Actions taken in accordance with the program, regulations or policy may not otherwise be subject to adequate MEPA review or may have similar environmental impacts such that a common assessment may be necessary or appropriate. Programmatic Review shall be designed to assist an Agency in fulfilling its obligations in accordance with M.G.L. c. 30, section 61 and 301 CMR 11.12(1) to review periodically, to evaluate, and to determine the potential significant environmental impacts of its implementation of its programs, regulations, and policies.
(b) Area-Wide Review. The Secretary may establish a Special Review Procedure if a Project may affect a large area or several sites. Area-Wide Review may be appropriate, for example, for master plan areas, watersheds and other ecosystems, roadway and utility corridors, redevelopment areas, major public facilities, or large developments to be constructed in phases. Area-Wide Review shall be designed to assist a Proponent in establishing a future baseline in relation to which a Project and its alternatives can be described and analyzed and its potential environmental impacts and mitigation measures can be assessed.
(c) Coordinated Review. The Secretary may establish a Special Review Procedure for a Project to coordinate or consolidate MEPA review with other environmental or development review and permitting processes conducted by any Agency or Federal, municipal, or regional governmental entity. Coordinated Review may be appropriate, for example, if there is a comprehensive review or permitting process by a Federal, municipal, or regional governmental entity that provides meaningful opportunities for public review, analyzes alternatives, and considers cumulative impacts. Coordinated Review shall be designed to assist the Secretary in adopting scoping decisions by the Agency or entity, deferring to its scoping decisions, issuing joint scoping decisions or accepting a review document prepared in accordance with the statutes and regulations of the Agency or entity as the full or partial equivalent of an ENF, EIR, or other review document.
(d) Prototype Projects. The Secretary may establish a Special Review Procedure for a Project or portions of a Project that will be replicated in substantially similar form at one or more future times or locations. Prototype project review shall be designed to streamline review, in whole or in part, of future Projects that will be sufficiently like the original Project such that the predicted environmental impacts for the proposed mitigation measures shall be deemed to be substantially similar. In considering issuance of a Special Review Procedure for prototype projects, the Secretary shall adopt specific guidelines for eligible projects to ensure that the environmental impacts of future projects are substantially similar to a previously reviewed project. The Secretary shall state in the certificate establishing the Special Review Procedure the time period that is appropriate for the special review procedure and the conditions under which the Proponent shall file a Notice of Project Change.
(e) Other Special Review. The Secretary may establish a Special Review Procedure for any other Project.
(5) Presumptive Filings. Unless the Secretary has indicated otherwise in the certificate establishing the Special Review Procedure, the Proponent shall file a final Special Review Procedure review document within 18 months following that certificate, and shall file a new Special Review Procedure review document within two years following the certificate on the final Special Review Procedure review document. The Secretary may deem the Special Review Procedure closed if the Proponent fails to file a timely review document. The Secretary shall state in the certificate establishing the Special Review Procedure when the Proponent shall file any interim review documents and shall establish the conditions under which the Proponent shall file a Notice of Project Change.
(6) Individual Agency Actions. The Secretary shall state in the certificate on the final Special Review Procedure review document whether and to what extent an individual Agency Action taken in accordance with or as part of the Project subject to the Special Review Procedure shall require further MEPA review. The Secretary may find that an individual Agency Action does not require an ENF if it is subject to specified conditions or restrictions, that an ENF is required but may deal with some issues by reference to the Special Review Procedure, or that an ENF is required but that an EIR is presumed not to be required except under circumstances identified during review of the ENF.
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