Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 4.00 - TIMELY ACTION SCHEDULE AND FEE PROVISIONS › Section 4.04 - Permit Application Schedules and Fee

Current through Register 1525, July 5, 2024
(1)
General
. Schedules for timely action on permit
			 applications shall be applicable to, and fees pertaining to such applications
			 shall be payable by, all permit applicants for permits identified in
			 310
			 CMR 4.10 (Appendix), as set forth in
			 310
			 CMR 4.10 (Appendix). Except as otherwise
			 provided in 310 CMR 4.04(2)(b) through (g), 4.04(3)(c) and (d), and
			 4.05,
			 the applicable schedule for timely action and permit application fee for each
			 permit and category of permit shall be as set forth in
			 310
			 CMR 4.10 (Appendix). Such fees shall be
			 payable for each such permit application. Permit applicants with applications
			 pending before the Department as of January 1, 1991 may elect to pay the permit
			 application fee; the schedule for timely action shall be applicable to such
			 permit applications only upon payment of the permit application fee. The
			 category to which each permit application belongs shall be determined based on
			 the proposed activity defined in the permit application. An applicant seeking
			 more than one permit shall pay the fee indicated for each such permit. A permit
			 application or notification shall not be deemed valid, unless payment of the
			 applicable fee is made or an extension is requested pursuant to 310 CMR
			 4.04(3)(c). If the full permit fee, or a hardship extension request has not
			 been received within 180 days of submittal of the permit application, and the
			 applicant fails to respond to Departmental notification of the pending
			 administrative action to withdraw the permit, the application shall be deemed
			 withdrawn. No refund of any portion of the application fee shall be
			 due.
(2)
Operation of
			 Provisions for Schedules for Timely Action
. Schedules for timely
			 action set forth in
			 310
			 CMR 4.10 (Appendix), or established pursuant
			 to
			 310 CMR
			 4.05, shall be applied in accordance with 310
			 CMR 4.04.
(a)
Commencement of
			 Schedule
. Computation of time periods that begin when a document
			 is received and a permit application fee has been paid shall begin on the day
			 following the day on which the later of those events occurs.
(b)
Operation of Defined Schedule
			 Periods
. 310 CMR 4.04 defines the operation of review periods for
			 administrative completeness, technical, supplemental technical, and public
			 comment review periods.
1.
Administrative Completeness Review
.
a.
General
. An
			 initial administrative completeness review shall result in a determination of
			 administrative completeness or a statement of administrative deficiencies. The
			 Department may request additional information during the course of such
			 review.
b. Unless the number of
			 days to respond to the Department's statement of administrative deficiencies is
			 specified in
			 310
			 CMR 4.10, an M.G.L. c. 21E applicant may,
			 within 15 days, and all other applicants may, within 180 days, respond to the
			 Department's statement of administrative deficiencies by submitting any
			 additional material to support the application. Failure by the applicant to
			 submit such material within the specified time shall be deemed to be a
			 withdrawal of the application; provided, that in such circumstances the
			 applicant shall not be entitled to any refund of the permit application fee,
			 notwithstanding the provisions of 310 CMR 4.04(3)(d).
c.
Second Administrative
			 Completeness Review
. If the Department has issued a statement of
			 administrative deficiencies, a second administrative completeness review shall
			 be conducted within the same number of days specified for the initial
			 administrative completeness review, beginning with receipt of materials
			 submitted by the applicant in response to the statement of administrative
			 deficiencies. The Department may request additional information during the
			 course of review. A second administrative completeness review shall result in a
			 determination of administrative completeness or a denial of the permit
			 application. A denial of the permit application shall be subject to appeal in
			 the manner specified in applicable statute or regulations, provided that in any
			 adjudicatory hearing the issues shall be limited to the question of whether or
			 not the information submitted was administratively complete. If the applicant
			 prevails in such a proceeding, the Department shall begin the next step of its
			 review pursuant to the schedule for timely action for that permit.
d.
Effect of
			 Determination
. A determination of administrative completeness
			 shall not constitute any finding with respect to the technical suitability,
			 adequacy or accuracy of the materials provided, and shall be no bar to a
			 request to amend, revise, replace, or supplement such materials based on
			 technical suitability, adequacy or accuracy.
2.
Technical Review
.
a. A technical review shall result:
i. in a decision to grant or deny the permit;
			 or
ii. where public comment is
			 provided, in a proposed decision to grant or deny the permit; or
iii. where the Department would on the basis
			 of the information in the record either deny the permit or impose conditions
			 significantly modifying or restricting operation of the project or activity as
			 proposed, in a statement identifying deficiencies in the application and
			 supporting materials. The Department's decision to issue a statement
			 identifying deficiencies shall not be deemed to give rise to any right to an
			 adjudicatory hearing.
b.
			 The Department may request additional information during the course of a
			 technical review.
c. If the
			 Department has issued a statement identifying deficiencies, a M.G.L. c. 21E
			 applicant may within 30 days and all other applicants may within 45 days of
			 issuance elect to proceed on the record as it stands at that time, by so
			 notifying the Department in writing. An applicant so electing to proceed on the
			 record may not in any manner amend, revise, replace, or supplement the
			 application or supporting materials. If the applicant so elects, the Department
			 shall issue a decision to grant or deny the permit, or a proposed decision to
			 grant or deny the permit for public comment, within 45 days of receipt of the
			 applicant's notice, subject to any adjustment in the schedule pursuant to 310
			 CMR 4.04(2)(d)2. or 3.a.
d. A
			 decision to grant or deny a permit following technical review shall be subject
			 to appeal in the manner specified in applicable statute or
			 regulations.
e. A provision for
			 presumptive approval or equivalent term set forth in a program regulation
			 underlying a fee permit category listed in
			 310
			 CMR 4.10 shall result in approval of the
			 permit application in the absence of a written deficiency statement or decision
			 within the time frame established for presumptive approval.
3.
Supplemental Technical
			 Review
.
a. A supplemental
			 technical review shall result in a decision to grant or deny the permit, or,
			 where public comment is provided, in a proposed decision to grant or deny the
			 permit.
b. The Department may
			 request additional information during the course of a supplemental technical
			 review.
c. A decision to grant or
			 deny a permit following supplemental technical review shall be subject to
			 appeal in the manner specified in applicable statute or
			 regulations.
4.
Public Comment Review
.
a. A public comment review shall result in a
			 decision to grant or deny the permit.
b. The Department may request additional
			 information during the course of such review.
c. A decision to grant or deny a permit
			 following public comment review shall be subject to appeal in the manner
			 specified in applicable statute or regulations.
d. For applications filed pursuant to M.G.L.
			 c. 21E, and 310 CMR 40.0000:
Massachusetts Contingency Plan
, a
			 public comment period shall, if applicable, occur concurrently with the
			 technical review. A second public comment period shall, if applicable, occur at
			 either the end of the technical review or the supplemental technical review.
			 The applicant shall have an additional 30 days beyond the second public comment
			 period to respond, if significant comments are received.
(c)
Additional
			 Information Submitted by Applicants
.
1.
Submittals During Departmental
			 Review Periods
. The Department may request additional information
			 from the applicant during any Departmental review period without extending or
			 reducing the time provided in the schedule for the Department to complete such
			 review. The Department may make such requests either orally or in writing. In
			 making any such written request, the Department shall specify a reasonable time
			 within which the applicant may provide such additional information, considering
			 the time required to produce the information and the time required to review it
			 within the applicable period for the Department to take action. Such
			 specification of time shall not be deemed to give rise to any right to an
			 adjudicatory hearing. The Department shall not be required to consider in any
			 decision or action, including any adjudication, any additional information
			 submitted by the applicant beyond the limit of time so specified by the
			 Department, unless that additional information is timely submitted in response
			 to a statement identifying deficiencies or another written request from the
			 Department pursuant to 310 CMR 4.04(2)(c).
2.
Change in
			 Project
.
a.
Determination of Change
. The Department may determine
			 that the applicant has filed a new application whenever additional information
			 provided by the applicant during any Departmental review period, in response to
			 any statement identifying deficiencies in the application or supporting
			 materials, or during any period allowed for public comment, either
i. results in a change in the category in
			 which the permit application is classified, or
ii. significantly increases or changes the
			 nature of the potential effects of the proposed project or activity on public
			 health and safety or the environment. Upon making a determination that the
			 applicant has filed a new application, the Department shall promptly notify the
			 applicant in writing. The notice shall indicate the basis for the determination
			 and summarize the provisions of 310 CMR 4.04(2)(c)2. relative to such
			 determinations. The determination that a project has changed shall not be
			 grounds for a request for adjudicatory hearing; however, an applicant aggrieved
			 by such a determination may seek review of the determination as an issue in any
			 appeal of the permit decision.
b.
Effects of Determination on
			 Schedule
.
i. Immediately upon
			 issuance of the notification, the schedule for timely action
shall be suspended.
ii. If the determination resulted from a
			 proposed change in design or operation of the proposed project or activity, the
			 applicant may within 45 days withdraw the change and return to its previous
			 proposal by so notifying the Department in writing. If the applicant so
			 notifies the Department, the schedule for timely action shall resume at the
			 point at which it was suspended.
iii. If the determination resulted from any
			 other cause, or if the applicant does not elect to withdraw the change, the
			 Department shall begin a review of the new application pursuant to the relevant
			 schedule for timely action.
c.
Effects of Determination on
			 Fee
. Unless the applicant elects to proceed with the previous
			 application in accordance with 310 CMR 4.04(2)(c)2.b.ii., the original
			 application shall be deemed withdrawn, and the fee shall be disposed as
			 provided in 310 CMR 4.04(3)(d); provided, that the Department shall credit any
			 amount to be refunded toward the permit application fee payable for the new
			 permit application unless the applicant requests a refund.
(d)
Application of
			 Schedule Periods
.
1. For the
			 purposes of 310 CMR 4.04(2), an "interim review period" shall mean the period
			 allowed for any administrative completeness review, technical review, or
			 supplemental technical review which may result in an identification of
			 deficiencies or a proposed decision for public comment, or any other period for
			 action by the Department that may not or does not require a final decision to
			 grant or deny the permit. A "final review period" shall mean the period allowed
			 for a technical or public comment review or other period for action by the
			 Department, which must result in a decision to grant or deny the permit. The
			 schedules for timely action established in 310 CMR 4.04 create no right to any
			 remedy except that specifically provided in 310 CMR 4.04 and in M.G.L. c. 21A
			 § 18 or in M.G.L. c. 21E, § 3B.
2.
Accelerated Action by
			 Department
. Should the Department complete the required action for
			 any interim review period in less time than is allowed pursuant to the
			 applicable schedule, one day shall be added to the number of days allowed for
			 the Department's next action, if any, in the applicable schedule for each day
			 that the Department's action precedes the date by which such action was
			 required.
3.
Tardy
			 Action by Department
.
a.Should
			 the Department fail to take timely action on a permit application within any
			 interim review period, subject to any adjustment required by 310 CMR
			 4.04(2)(d)2., one day shall be subtracted from the number of days allowed for
			 the Department's next action in the appropriate schedule for each day that the
			 Department's action is tardy, unless the schedule for taking such action has
			 been extended pursuant to 310 CMR 4.04(2)(e) or (f).
b.Should the Department fail to take timely
			 action on a permit application within any final review period, subject to any
			 adjustment required by 310 CMR 4.04(2)(d)2. and 4.04(2)(d)3.a., the Department
			 shall refund the permit application fee paid by the applicant, unless the
			 schedule for taking such action has been extended pursuant to 310 CMR
			 4.04(2)(e) or (f). The Department shall continue to process the permit
			 application following a refund. The applicant may agree to accept an extended
			 review schedule in lieu of receiving a refund.
c.Notwithstanding 310 CMR 4.04(2)(d)3.b., the
			 Department shall continue to process a permit application pursuant to M.G.L. c.
			 21E and 310 CMR 40.0000: Massachusetts Contingency Plan on a high priority
			 basis.
4.
Tardy Action by
			 Applicant
. Should the applicant fail to respond to the
			 Department's statement of deficiencies within the period provided for doing so,
			 the application may be deemed withdrawn, unless the schedule for doing so has
			 been extended pursuant to 310 CMR 4.04(2)(e)3. or (f). The Department shall
			 issue a final decision to deny or approve in a technical review
			 period.
(e)
Extension of Schedule by Other Actions
.
1.
Failure of
			 Payment
. Whenever a check or other form of payment of a permit
			 application fee is returned for insufficient funds, or if payment in full is in
			 any other manner prevented, the schedule for timely action shall be suspended.
			 The Department shall notify the applicant of such suspension in writing. When
			 the Department has verified receipt of payment in full, the Department shall so
			 notify the applicant in writing. The time period for the Department to complete
			 the next relevant action shall be that period specified in the schedule for
			 timely action, subject to any modification in accordance with 310 CMR
			 4.04(2)(d)2., 4.04(2)(d)3., or (2)(f), beginning on the day after such notice
			 is issued
2.
Extension
			 of Periods for Departmental Action
.
a.The time periods for the Department to take
			 any action shall be extended whenever the Department determines that action by
			 another federal, state, or municipal governmental agency is required before the
			 Department may act, or that judicial proceedings affect the ability of the
			 Department or the applicant to proceed with the application, or when the
			 Department has commenced enforcement proceedings which could result in
			 revocation of an existing permit for that facility or activity and denial of
			 the application. The applicant shall promptly notify the Department in writing
			 whenever it believes that action by another governmental agency is required, or
			 that judicial proceedings affect the ability of the Department or the applicant
			 to proceed with the application.
b.The Department shall provide written notice
			 of such determination to the permit applicant as promptly as practicable, but
			 in no event later than the date by which the Department or the applicant was
			 next to have completed an action. Such notice shall contain a statement of the
			 reasons for which the schedule must be extended. Such a determination shall not
			 be deemed to give rise to any right to an adjudicatory hearing. The applicant
			 may pursue any available judicial remedy.
c.When the Department determines that the
			 reason for such extension is no longer applicable, the Department shall so
			 notify the applicant in writing. The time period for the Department to complete
			 the next relevant action shall be that period specified in the schedule for
			 timely action, beginning on the day after such notice is issued.
3.
Extension of Periods
			 for Action by Applicant
.
a.The
			 time periods for the applicant to take any action shall be extended whenever
			 the Department determines that judicial proceedings affect the ability of the
			 Department or the applicant to proceed with the application. The applicant
			 shall promptly notify the Department in writing whenever it believes that
			 judicial proceedings affect the ability of the Department or the applicant to
			 proceed with the application.
b.The
			 Department shall provide written notice of such determination to the permit
			 applicant as promptly as practicable, but in no event later than the date by
			 which the Department or the applicant was next to have completed an action.
			 Such notice shall contain a statement of the reasons for which the schedule
			 must be extended. No determination by the Department concerning the applicant's
			 ability to proceed with the application shall be deemed to give rise to any
			 right to an adjudicatory hearing. The applicant may pursue any available
			 judicial remedy.
c.When the
			 Department determines that the reason for such extension is no longer
			 applicable, the Department shall so notify the applicant in writing. The time
			 period for the applicant to complete the next relevant action shall be that
			 period specified in the schedule for timely action, subject to any modification
			 in accordance with 310 CMR 4.04(2)(f), beginning on the day after such notice
			 is given.
d.In no event shall the
			 period allowed for action by the applicant exceed two years, except in
			 accordance with an agreement executed pursuant to 310 CMR 4.04(2)(f), or a
			 schedule established pursuant to
			 310 CMR
			 4.05.
(f)
Extension of Schedule by
			 Agreement
. The applicant and the Department may, by written
			 agreement, extend any schedule for timely action or any individual portion
			 thereof.
(g)
Schedules
			 for Projects Requiring more than One Permit
. In order to ensure
			 efficient and coordinated review of all relevant issues, whenever more than one
			 type of permit from the Department is required for any project, the Department
			 may, upon written notice to the applicant adjust the schedules for timely
			 action for all such permits to coincide with that schedule providing for the
			 latest review period at each step of the review process. The Department shall
			 consult with the applicant prior to issuing any such
			 notice.