Email to Local Officials
Q: During the COVID-19 State of Emergency, I am working from home and have no access to a printer. In light of these circumstances, is it acceptable to MassDEP if I use email to send written notices to local officials that are required pursuant to the MCP's public involvement provisions instead sending them by first-class mail or delivering them by hand, as the regulations require (310 CMR 40.1403(2)(a))?
A: Yes. During the State of Emergency declared by the Governor on March 10, 2020, MassDEP will apply its enforcement discretion with respect to the use of email to send notices to local officials provided that the sender employ some way of confirming that the intended recipient has received the email (e.g., using the read receipt function or requesting an email response confirming receipt).
(Note, the proposed MCP amendments in the 2019 public hearing draft would allow email notification of local officials.)
Public Involvement Plan (PIP) Activities
Q: What procedures are appropriate for conducting public meetings at Public Involvement Plan (PIP) sites during the COVID-19 State of Emergency? (June 3, 2020, Revised AUGUST 12, 2020)
A: The MCP requirements for public involvement at PIP sites include holding a public meeting to present the draft PIP and, based on the site-specific PIP, may include additional public meetings at certain milestones in the assessment and cleanup process. These meetings are intended to hear concerns and gather comments from the petitioners and other interested parties to be incorporated, as appropriate, in planning and conducting response actions.
As a consequence of the current limitations on gatherings during the COVID-19 State of Emergency (i.e., limited to eight people per 1,000 square feet, and not exceed 25 people in a single enclosed, indoor space), parties conducting response actions may find it impossible, or imprudent, to hold in-person public meetings to fulfill the PIP public meeting requirements. In an order directed at meetings held by public bodies under the Commonwealth’s Open Meeting Law (“Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30a, s.20, March 12, 2020), the Governor established alternatives for holding such meetings during the State of Emergency “through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time.”
While PIP public meetings under the MCP do not fall under the Open Meeting Law, BWSC considers the alternatives referenced in the Order for holding meetings remotely as appropriate for conducting PIP public meetings while limitations on in-person gatherings under the State of Emergency remain in effect. (As time goes on, the limitations on public gatherings may change. Please continue to check relevant guidance.)
Parties conducting response actions are encouraged to consult with BWSC regarding questions about holding PIP public meetings remotely and to follow the guidance outlined below.
- Providing notice of a meeting
The MCP requires that notice of any PIP public meeting be provided at least 14 days in advance of the meeting (pursuant to 310 CMR 40.1405(6)(b)). In addition, the public meeting to present the draft PIP must be publicized through a newspaper notice as well as by mailing a copy of the notice to the petitioner, the Chief Municipal Officer and Board of Health in the affected community(ies) (pursuant to 310 CMR 40.1405(5)). Additional measures should be considered for providing notice to the public of a remote public meeting during the State of Emergency that include but are not limited to:
- In a meeting notice, providing a link to the video conference, a telephone number for those who wish to participate by telephone rather than video, and a contact name with email, phone number and address. The notice should also indicate how to request copies of the documents and visual presentation materials to be covered at the meeting (the option to receive hard copies of materials should be given to those who can’t access electronic copies) and how to submit comments.
- Contacting local officials to request notice be included on the municipality’s webpage, email notice service, or other online account, such as Twitter or Facebook.
- Using other methods of providing physical notice of the meeting, such as posting at local essential businesses identified by petitioners/stakeholder group.
- Providing notice on other online community pages that may exist.
- Providing notice in a local newspaper (already a requirement in the case of the meeting on the draft PIP).
- Public meetings required per 310 CMR 40.1404(5)(a) in response to a PIP petition
The MCP requires that, within 80 days of receiving a PIP petition, a draft PIP be prepared and presented at a public meeting (310 CMR 40.1405(5)(a)). Because this requirement is tied to other regulatory timelines, some form of meeting must be conducted. Further, M.G.L. c. 21E, s. 14 requires that "all public meetings or hearings will be held at locations and times convenient to the affected public." As such, it is important to consult directly with the petitioners and other interested parties to identify the best options for conducting the public meeting to ensure that it will be accessible and convenient for the affected community. This consultation is particularly important considering the potential additional barriers to accessing the meeting during the State of Emergency. Video conferencing is a popular option, and consideration should be given to specific needs and limitations of the community (e.g., language barriers, technology limitations). All presentation materials should be made available electronically and if appropriate or requested, in hard copy. In instances where internet access is a barrier to participation, consideration should be given to televising the meeting on a local cable access channel or providing a conference call option and mailing presentation materials ahead of the meeting. Recording the meeting presentation will allow for it to be viewed later by those who could not attend the meeting.
- Public meetings required by the PIP on response action submittals/milestones
The MCP requires that there be opportunities to comment on response actions by holding a minimum of 20- day comment period on all submittals (310 CMR 40.1405(6)(e)). To meet this requirement, the PIP may also require that public meetings be held to present and solicit comments on the draft submittals. As stated above (regarding the PIP petition), it is important to consult directly with the petitioner and interested parties about the best way to fulfill these requirements. In some instances, it may be appropriate to postpone the meeting to a later date (particularly if the State of Emergency will result in a delay in proceeding with response actions), or to provide opportunities for comment without holding a public meeting.
Q: What procedures are appropriate for establishing information repositories required by the MCP and Public Involvement Plan during the COVID-19 State of Emergency? (June 3, 2020)
A: 310 CMR 40.1405(6)(i) requires that the Public Involvement Plan “establish a public information repository(ies) in the community(ies) in which the disposal site is located and in any other communities which are, or are likely to be, affected by the disposal site, with a location and hours that are convenient to the public.” The purpose of this requirement is to ensure that all site-related documents, such as the Public Involvement Plan and any modifications, summary of comments on the plan, and other important disposal site documents, are easily accessible to the public. Access to the physical “location” of the information repository established by the PIP (e.g., the local public library) may be restricted during the State of Emergency. Therefore, in addition to providing documents to the repository established in the PIP, the appropriate use of one or more of the following options may provide reasonable access to the information in the repository during the State of Emergency, and in BWSC’s view, satisfy the MCP public repository requirement:
- Providing online access to the documents on a website created for the site or another community page.
- Providing interested parties with hardcopies or a flash drive with an electronic version of the documents in the repository.
- Submitting copies of all documents related to public involvement activities to MassDEP, as required by 310 CMR 40.1405(5)(e). Uploading the documents via eDEP creates an accessible electronic record.
It is recommended that the petitioner and other interested parties be consulted when determining which of these options is most appropriate with respect to a particular PIP site.
Payment of RAM Fee
Q: I am preparing to conduct a RAM. Since payment of the RAM fee is required before a RAM can be performed, I am concerned about making sure the payment is considered received by MassDEP. During the State of Emergency is there anyone available in MassDEP’s Boston Office to receive a check for payment of the RAM fee?
(April 22, 2020)
A: Consistent with the normal procedure for paying RAM fees, the payment should be sent to the MassDEP lockbox (DEP, P.O. Box 4062, Boston, MA 02211). All that is required to indicate that the RAM fee payment has been made on time is a "certification of payment" made on the BWSC106 transmittal form, Section H, Box 5. The check should not be hand delivered. During the State of Emergency there is no receptionist at MassDEP’s Boston Office. The RAM Plan may begin in accordance with MCP requirements (i.e. when RAM Plan submittal is complete on eDEP). In addition, do not include a copy of any payment to a submittal made to eDEP. All checks should stay out of the public record.
Activity and Use Limitations
Q: Some of the registries of deeds appear to have limited services due to COVID-19 State of Emergency and I am concerned I may not be able to file an Activity and Use Limitation (AUL) as part of a Permanent Solution. What advice does MassDEP have on filing AULs during the State of Emergency? (Revised August 11, 2020)
A: While many registries are currently not physically open for walk-in service or have limited access, all but a few satellite locations remain open for business. The registries’ preferred method of recording or registering documents during the State of Emergency continues to be via electronic filing or mail. In person filing by appointment or via a “drop off box” is offered at most registries. Up-to-date information on the status of individual registry operations is available on each registry’s website. You are strongly advised to check directly with the registry in question before attempting to file.
PPE Disposal Options
Q: How should I be disposing of the Personal Protective Equipment (masks and gloves) used during field work as well as in the office to protect against the spread of COVID-19?
A: This question is not specific to waste site cleanup activities and is relevant to many occupations. MassDEP’s Solid Waste Program (https://www.mass.gov/lists/massdep-solid-waste-policies-guidance-fact-sheets) and others (COVID-19 Work Practices - National Waste & Recycling Association (wasterecycling.org) have guidance online indicating that waste from households, commercial businesses and retail entities can be managed as they typically are unless otherwise directed by a local health department.