Executive Order  No. 433: Establishing the Environmental Management Commission of the MMR

WHEREAS, the Massachusetts Military Reservation ("MMR"), consisting of approximately 22,000 acres, was established by 1935 Mass. Acts c. 196, 1936 Mass. Acts c. 320, 1936 Mass. Acts. c. 344, 1941 Mass. Acts c. 5, 1955 Mass. Acts c. 655, and 1956 Mass. Acts c. 617 (collectively, the "Enabling Acts") for the purpose of the use and training of the military forces of the Commonwealth; and

WHEREAS, the northern approximately 15,000 acres are leased by the Commonwealth to the United States acting through the Department of the Army until the year 2026 for military uses; and

WHEREAS, the Department of the Army licensed the northern 15,000 acres of MMR to the Commonwealth, acting through the Massachusetts Army and Air National Guard (the "Massachusetts National Guard") for year-round training and support of the Massachusetts National Guard; and

WHEREAS, the northern approximately 15,000 acres of MMR are environmentally sensitive lands; and

WHEREAS, pursuant to the Massachusetts Environmental Policy Act ("MEPA"), Mass. Gen. L. c. 30 §§61-62H, the Secretary of Environmental Affairs issued a certificate in April 1997 to the Massachusetts National Guard to develop, in coordination with community participants, an environmental master plan for the future use of MMR. A second MEPA certificate issued by the Secretary to The Adjutant General in May 1997 established a scope for the master plan effort and created a Community Working Group ("CWG") to advise the Secretary and develop a consensus vision for MMR, including public participation in environmental review of the forthcoming master plan, of specific proposed projects, and of those projects that may be developed through the master plan; and

WHEREAS, in September 1998, the CWG issued its Master Plan Final Report, which recommended future uses and activities at MMR. The Master Plan Final Report distinguished between the Cantonment Zone, where more intensive military and civilian activities may be anticipated, and the Water Supply Management Zone, which is co-extensive with the northern 15,000 acres of the MMR. The Master Plan Final Report described the purpose of the northern 15,000 acres as "permanent protection and coordinated management plans for water supply, wildlife habitat, and open space protection consistent with necessary and compatible military activities"; and

WHEREAS, the Final Environmental Impact Report and a subsequent informational supplement proposed a comprehensive set of Environmental Performance Standards (EPS) designed to guide all activities on the northern 15,000 acres of the MMR, and in particular training on the northern 15,000 acres, The proposed EPS received extensive review and were strengthened throughout the MEPA process. Each EPS meets or exceeds applicable regulatory standards; and

WHEREAS, on July 16, 2001, the Secretary issued a certificate finding that the Final Environmental Impact Report adequately and properly complies with MEPA; and

WHEREAS, the Commonwealth and the United States, represented by the Department of the Army and the National Guard Bureau, have agreed in a Memorandum of Agreement dated October 4, 2001 that a cooperative partnership between the Commonwealth and the military for the long-term management of the northern 15,000 acres of the MMR is necessary in order to ensure the permanent protection of the drinking water supply and wildlife habitat, and to ensure that military and other activities are compatible with protection of the drinking water supply and the wildlife habitat;

NOW THEREFORE, I, Jane Swift, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me as Supreme Executive Magistrate, do hereby order as follows:

Section 1. Establishment of the Environmental Management Commission

There is hereby established the Environmental Management Commission ("EMC") of MMR. The EMC shall consist of three ex officio members: the Commissioner of the Department of Fisheries, Wildlife, and Environmental Law Enforcement; the Commissioner of the Department of Environmental Management; and the Commissioner of the Department of Environmental Protection.

Section 2. Purpose of the EMC

The purpose of the EMC shall be to ensure the permanent protection of the drinking water supply and wildlife habitat of the northern 15,000 acres of the MMR. The EMC shall ensure, by independent oversight, monitoring, and evaluation, that all military and other activities on the northern 15,000 acres are consistent with this purpose. The EMC shall oversee compliance with and enforcement of the Environmental Performance Standards (EPS); coordinate the actions of state environmental agencies in the enforcement of laws and regulations, as appropriate; and facilitate an open and public review of all activities on the northern 15,000 acres of the MMR.

Section 3: Advisory Councils

The EMC shall be assisted by two advisory councils:

A. Community Advisory Council ("CAC"). The CAC shall be comprised of the following members: one representative of each of the towns of Falmouth, Bourne, Sandwich and Mashpee; one family member resident of MMR; two representatives of the military; one representative of the Cape Cod Commission; one representative of the Upper Cape Regional Water Supply Cooperative; one representative of the Wampanoag Tribe; and five other members. All members shall be appointed by the Governor, provided that the town representatives shall be recommended by the towns' respective Boards of Selectmen; the MMR family member resident shall be selected from among a list of five persons provided by the Commander of the Coast Guard Air Station Cape Cod; the military representatives shall be recommended by the Military Division of the Commonwealth; the Cape Cod Commission representative shall be recommended by the Cape Cod Commission; the Upper Cape Regional Water Supply Cooperative representative shall be recommended by the Upper Cape Regional Water Supply Cooperative; and the Wampanoag Tribe representative shall be recommended by the tribal leadership. The CAC shall assist the EMC by providing advice on issues related to the protection of the water supply and wildlife habitat on the northern 15,000 acres of the MMR

B. Science Advisory Council ("SAC"). The SAC shall be appointed by the Governor and be comprised of five (5) to nine (9) scientists and engineers who are recognized for their expertise in the areas of public health, water protection, wildlife habitat management, or land use management. The SAC shall assist the EMC by providing advice on scientific and technical issues related to the protection of the drinking water supply and wildlife habitat on the northern 15,000 acres of the MMR.

Section 4. Procedures of the EMC

The EMC shall adopt such guidelines, rules, and procedures as are appropriate for the effective performance of its duties.

Section 5. Staff of the EMC

The EMC shall designate a state employee to serve as the MMR Environmental Officer ("EO") and may designate such additional persons as may be necessary to carry out the activities of the Commission. The EO shall report to the EMC. The duties and responsibilities of the EO shall be to monitor the activities being conducted on and the uses of MMR and the impact of such activities and uses on the water supply and wildlife habitat of MMR. The EO shall also coordinate with appropriate personnel from DFWELE, DEM, and DEP to monitor and evaluate the environmental impact of activities conducted on and uses of MMR. The personnel of DFWELE, DEM, and DEP shall support and assist the EMC and cooperate with the EO. The EO shall have an office located within the Environmental Readiness Center (ERC) or other such location on MMR as may be appropriate to carry out the EO's duties.

EMC, DFWELE, DEM, and DEP personnel shall access and inspect the northern 15,000 acres of MMR in order to monitor, oversee, evaluate, and report to the EMC on the environmental impact of military training and all other activities. As determined to be necessary by the EMC, such access shall occur prior to, during, and immediately following training or other activities upon proper notice and in accordance with Camp Edwards Standard Operating Procedures (SOP), regulations, and security requirements.

Section 6. Responsibilities of the Massachusetts National Guard

The Massachusetts National Guard shall provide the EO with office space located within the Environmental Readiness Center (ERC) or other such location on MMR as may be appropriate to carry out the EO's duties. The Massachusetts National Guard shall designate an individual as its representative and liaison to the EMC.

The Massachusetts National Guard shall allow the EO, acting on behalf of the EMC, regular and unrestricted access to all data and information from the various environmental and management programs and activities operating on Camp Edwards. These programs and activities include, but are not limited to, the Integrated Training Area Management Program (ITAM); the Integrated Natural Resources Management Plan (INRMP); the Integrated Cultural Resources Management Plan (ICRMP); Camp Edwards SOPs; and any other program or activity created by the Army or the Massachusetts National Guard for the purpose of managing or maintaining the northern 15,000 acres of the MMR. Access to data and information shall not include restricted or classified information, unless the EO obtains the appropriate level of security clearance. The Army and the Massachusetts National Guard shall use its best efforts to assist the EO in obtaining the appropriate level of security clearance. The Massachusetts National Guard shall also submit all draft and final Impact Area Ground Water Study Reports to the EMC for information, as soon as they become available.

The Massachusetts National Guard shall provide the EMC with an annual report describing in detail: (I) the nature and extent of military training and other activities; (2) all resource management activities; (3) the status of compliance with applicable federal and state environmental laws and regulations and the EPSs; and (4) long-term trends in the major areas of resource management and activities. The report shall be made available to the public.

The Massachusetts National Guard shall notify the EMC, in writing and within two (2) business days after discovery, of any violation of an EPS. The notification shall include the nature and extent of the violation and any corrective action that has been taken or will be taken to return to compliance. With respect to a violation of federal or state law that is reported to a federal or state agency, the Massachusetts National Guard shall provide the EMC with a copy of any notice provided to the federal or state agency.

The Massachusetts National Guard shall also notify the EMC, in writing and within two (2) business days after the discovery of any damage or threat of damage to the drinking water supply or wildlife habitat, even if the damage results, or may result from, an activity that is otherwise compliant with law, regulation, or EPS. Damage shall not include any insignificant damage to these resources.

The Massachusetts National Guard shall comply with all decisions and orders of the EMC, provided such decisions or orders do not conflict with federal or state law.

The Massachusetts National Guard, the Army, and any other user of MMR shall immediately cease or adjust any activity that, in the determination of the Massachusetts National Guard or the EMC, causes or threatens to cause imminent and substantial damage to the drinking water supply or the wildlife habitat of the northern 15,000 acres of the MMR.

In the case of an order by the EMC to abate an activity that causes or threatens to cause imminent and substantial damage to the drinking water supply or wildlife habitat, the Massachusetts National Guard shall cease the activity while any request for reconsideration is pending.

Section 7. Authority and Responsibilities of the EMC

The EMC shall evaluate all information and data regarding the activities and uses of MMR and the environmental impacts upon the drinking water supply and wildlife habitat of MMR and may take appropriate action. The EMC may consult with the SAC, CAC, or other entities in evaluating such information and in taking such action.

If the EMC determines that a user has violated or is violating an EPS, the EMC will notify the violator of the violation and may: (1) in the case of an imminent and substantial damage, order such activity to cease immediately, or require adjustments in the activity to eliminate the imminent and substantial damage or threat of damage; or (2) in all other cases, require the violator to return to compliance within a reasonable time and to notify the EMC of the corrective action taken, including steps to ensure future compliance. Repeated or willful violations of an EPS may result in sanctions up to and including cessation of activities.

If the EMC determines, based upon sound and accepted scientific analysis and evidence, that an activity that is otherwise compliant with law, regulation, or EPS, is causing or threatens to cause imminent and substantial damage to the drinking water supply or wildlife habitat of the northern 15,000 acres of MMR, the EMC may: (1) order such activity to cease immediately; or (2) require adjustments in the activity to eliminate the imminent and substantial damage or threat of damage.

After consultation with the SAC and CAC, the EMC may adjust EPS based upon sound and accepted scientific analysis, monitoring data, and other relevant information. The proponent of any adjustment shall bear the burden of justifying the proposed adjustment and demonstrating that the proposed adjustment is protective of the drinking water supply and wildlife habitat. If the EMC determines that a proposed adjustment may be warranted and does not significantly reduce the standard of environmental protection, it shall publish a notice of availability of the proposed adjustment to the EPS in the Environmental Monitor, furnish copies to all members of the CAC and SAC, and accept public comment for a period of at least 30 days following the publication date. Thereafter, the proposed EPS will become effective on a date determined by the EMC. The EMC shall not consider adjustments to the EPS prior to submission of the first State of the Reservation Report, required under paragraph 9 above and to be filed on or about 1 January 2003, unless such an adjustment is necessary to abate an imminent and substantial damage or for national security reasons.

Section 8. Administrative Process and Reconsideration Before the EMC

Prior to issuing an order or deciding an issue that does not involve an imminent and substantial damage, the EMC shall provide the military with an opportunity to be heard.

If the EMC issues an order to cease or adjust an activity to avoid imminent and substantial damage, the EMC shall provide the military an opportunity to be heard on the matter within two (2) business days after issuing the order.

The military may request reconsideration of any decision or order of the EMC by submitting its concerns in writing. The EMC will consider all such requests. The EMC shall reconsider its decision or order, in light of all relevant information, and either affirm, amend, or reverse its decision or order and so indicate in writing within 30 days, unless such time is further extended by mutual agreement of the Parties.

Section 9. Authority of other State Environmental Agencies

The state environmental agencies on the EMC retain all their respective, independent enforcement authority. In response to an enforcement action brought by one of the state environmental agencies, including DFWELE, DEM and DEP, members of the EMC shall work together to implement coordinated actions at the MMR. In order to avoid, minimize, and mitigate any negative impacts, they shall, in good faith and where appropriate, seek comment and input from one another, the military, and the public before issuing decisions or taking actions at the MMR.

Section 10. Exclusion of PAVE PAWS and Coast Guard Transmitter Sites

This Executive Order shall not in any way affect the powers, rights, duties, and liabilities of the Parties with respect to the PAVE-PAWS site or the U.S. Coast Guard Transmitter site:

a. The PAVE-PAWS site, so called, consisting of approximately 87 acres as described in permit # DACA 51-4-81-475 issued by the U.S. Department of the Army to the U.S. Department of the Air Force; said site being a portion of land owned by the Commonwealth and leased to the United States of America, represented by the Department of the Army; as described in its lease contract # DACA 51-5-77-127 and associated supplemental lease agreements;

b, The United States Coast Guard Transmitter site, so called, consisting of approximately 542 acres and shown as "Parcel P" on a plan of land titled "Compiled Plan Showing Leased Areas at Camp Edwards Military Reservation," scale 1"= 2000', dated September 30,1982, and prepared by the United States Army Corp of Engineers; said site being a portion of land owned by the Commonwealth and leased to the United States of America, represented by the Department of Transportation, United States Coast Guard, as described in its lease document #34836, dated July 1, 1976.

Given at the Executive Chamber in Boston this 5th day of October in the year two thousand and one,

Jane Swift

Governor

Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth