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)
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 of more than 10 people during the COVID-19 State of Emergency,* 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 while those activities are occurring.”
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 in light of 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 (with regard to 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.
*COVID-19 Order No. 13, dated March 23, 2020; extended under COVID-19 Order Nos. 21, 30, and 32, dated, respectively, March 31, 2020, April 28, 2020, and May 15, 2020, further extended in part under COVID-19 Order Nos. 33 and 35, dated, respectively May 18, 2020 and June 1, 2020.
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.
Limited Removal Action (LRA) Extensions
Q: A client has a release of PCBs to soil, which has been determined to be less than 20 cubic yards. The site is within a fenced construction site, and does not present an Imminent Hazard. The intent has been to complete an Limited Removal Action (LRA). However, the site is in Boston and construction has been shut down since March as a result of the COVID-19 State of Emergency. The 120-day deadline for completing the LRA is approaching. Will extensions be granted to allow for the completion of LRAs in this scenario? (May 27, 2020)
A: If your client cannot conduct the Limited Removal Action prior to the end of the 120 days from the time s/he had knowledge of the PCB release, your client must notify.
The Department has issued guidance (available here: https://www.mass.gov/doc/guidance-on-continuity-of-massdep-waste-site-cleanup-operations-and-mcp-compliance-during-covid/download) that describes its expectations and application of enforcement discretion for certain delays in conducting response actions during the COVID-19 State of Emergency. As stated in the guidance, all 2-hour, 72-hour and 120 day notifications must continue to be made during the State of Emergency. This is consistent with the provisions at 310 CMR 40.0025(1), which allow for written notices of delay in the case of a Force Majeure "except a deadline or time period for providing notification of a release or threat of release of oil and/or hazardous material, or an Imminent Hazard, as required by 310 CMR 40.0300..."
Unable to meet upcoming deadlines due to State of Emergency
Q: My client has a Phase I Preliminary Site Assessment and Tier Classification submittal deadline coming up. The State of Emergency may prevent assessment activities needed to complete the Phase I Preliminary Site Assessment. If that occurs, should my client be submitting a Notice of Delay? Those provisions call for stating the reason for the delay and a schedule for when the work that is subject to the delay will be performed. Not knowing when the State of Emergency will be lifted, how can my client provide such a schedule?
(April 22, 2020)
A: If your client cannot meet the deadline for submitting the Phase I and Tier Classification because of interruption of work cause by the State of Emergency, then your client should submit a Notice of Delay as outlined in the Guidance on Continuity of MassDEP Waste Site Cleanup Operations and MCP Compliance during COVID-19 State of Emergency (“Guidance”), April 7, 2020, https://www.mass.gov/files/documents/2020/04/07/2020-04-07%20-%20Guidance%20on%20Continuity%20of%20BWSC%20Operations%20.pdf.
In exercising its enforcement discretion, MassDEP recognizes that submittals may be late because they depend on work that is interrupted by the State of Emergency. This enforcement discretion applies to missed deadlines for which MassDEP has been notified consistent with the Guidance. The attachment to the Notice of Delay should describe the specific work that cannot be completed, the deadlines that will be missed and a proposed schedule to complete the work following the end of the State of Emergency. As you point out, at this time the duration of the State of Emergency is unknown, so the proposed schedule should be described in terms of days, weeks or months following the end of the State of Emergency.
RAM Status Report - or - Notice of Delay?
Q: If my client is unable to implement a RAM according to the schedule provided in the RAM Plan submitted prior to the State of Emergency (SOE) because of the interruption in field work caused by the SOE, does my client need to submit a Notice of Delay or can the delay be detailed in the next RAM Status Report?
(April 22, 2020)
A: Either mechanism can be used to communicate the delay to MassDEP. The existing RAM provisions allow for using the next required RAM Status Report to document changes in the schedule for implementing RAM activities and such changes in schedule do not require submitting a new RAM Plan. (Unless otherwise specified by the Department, modified RAM Plans are only required if a substantial modification, as provided at 310 CMR 40.0443(4), is being made to the RAM Plan.) The RAM Status Report should describe specifically which activities will be delayed and when work is expected to resume in terms of days, weeks or months following the end of the State of Emergency. The Notice of Delay may also be used to inform MassDEP of the delay in implementing the RAM (submitted using transmittal form BWSC121 and by checking off the Force Majeure box). The RAM Status Report submittal requires the signature of both the LSP and person conducting response actions. The Notice of Delay requires only the signature of the person conducting response actions.
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: Is the 30-day time period for providing notice to record interest holders prior to recording a Notice of Activity and Use Limitation, required pursuant to 310 CMR 40.1074(1)(d)), affected by the State of Emergency or the Governor’s COVID-19 Order #17 (related to state permitting)?
(April 22, 2020)
A: No. The 30-day time period is unaffected by the State of Emergency or Emergency Order #17. The notice does not involve an agency permit or approval.
Q: Some of the registries of deeds appear to have limited services due to COVID-19 State of Emergency. Consequently, I am concerned I may not be able to file an Activity and Use Limitation (AUL) that is to be implemented as part of a Permanent Solution. Can you please provide information on what happens to compliance deadlines if you were about to file an AUL and cannot?
A: While many registries are not physically open for walk-in service or have limited or by appointment only access, all remain open for business, with the exception of a few satellite locations. BWSC has pulled together a spreadsheet on the status of registry operations as of April 30, 2020, as a quick reference (see below). You are advised to check directly with the registry in question, either by consulting the registry’s website or calling, to get the most up-to-date information on the status of operations.
If it turns out that registry operations prevent the filing an AUL and thus result in a delay in meeting a compliance deadline (e.g., filing a Permanent within 5 years from Tier Classification), then the person conducting response actions should file a Notice of Delay using transmittal form BWSC121. The Department has issued guidance on conducting response actions during the State of Emergency that addresses filing a Notice of Delay (see Guidance on Continuity of MassDEP Waste Site Cleanup Operations and MCP Compliance during COVID-19 State of Emergency, April 7, 2020, and related Q & As available here: https://www.mass.gov/lists/massdep-covid-19-guidance-for-waste-site-cleanup-activities).
The attachment filed with the Notice of Delay should describe the specific reason(s) for the delay, including any delays resulting from limited registry operations.
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 (https://cdn.ymaws.com/wasterecycling.org/resource/resmgr/hwi_minutes/HWI_COVID-2019_FAQs.pdf) 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.