§ 18 — Permit application and compliance assurance fees; timely action schedules; regulations

Massachusetts § 18

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title II: EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
• Ch. 21A: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

Text

Section 18. As used in this section, the following words shall, unless the context otherwise requires, have the following meanings:—''Advisory committee'', the advisory committee on fees and program improvements appointed by the commissioner pursuant to this section.''Commissioner'', the commissioner of the department of environmental protection.''Department'', the department of environmental protection.''Permit'', any permit, license, certificate, formal determination, registration, plan approval, variance, or other approval issued by or required by the department or any of its divisions, pursuant to any statute or regulation. ''Permit'' shall not include approvals issued by the department solely pursuant to regulations governing the assessment, containment, or removal of oil or hazardous materials under the authority of chapter twenty-one E.''Permit application'', any application, filing, or other submission of materials to the department to initiate a permit.''Person'', any individual, trust, firm, public or private corporation or authority, partnership, association or other entity or any group thereof or any officer, employee, or agent thereof, including the commonwealth and the federal government and any agency or authority thereof, but not including any city, town, county, or district of the commonwealth or any municipal housing authority or any tribal housing authority of a federally recognized Indian tribe when constructing housing.Notwithstanding any general or special law to the contrary, the department may establish fees applicable to the regulatory programs administered by the department, in the manner set forth in this section. All such fees shall be established by regulations promulgated by the department pursuant to chapter thirty A, after making findings in the administrative record as required in this section, and after consultation with an advisory committee on fees and program improvements appointed by the commissioner. The advisory committee shall at a minimum consist of representatives of industrial, commercial, and small business organizations, municipalities, and environmental organizations. The advisory committee shall meet at least four times each fiscal year. The members of the advisory committee shall serve without compensation.(a) Annual compliance assurance fee. For permits valid for one year or more, the department may establish an annual compliance assurance fee, based on the department's costs for monitoring, discharge sampling and analysis, inspection, technical assistance, and enforcement activities necessary to ensure compliance by persons holding such permits. Such fees may be based on a scale that accounts for the extent of such enforcement and compliance activity that is appropriate for different categories of permits. Such fees shall be applicable to all persons, excluding agencies of the commonwealth, holding such permits, including without limitation those persons, excluding agencies of the commonwealth holding permits at the time the fees are established. At least forty-five days before the date such fee is due, the department shall notify each person holding such a permit of the amount of the fee due and the date by which payment is due. In instances of severe financial hardship, the commissioner or his designee may grant a timely request to extend the time for making payment. Failure by any person to pay any annual compliance assurance fee when due shall result in suspension of or, if such failure continues for sixty days or more, may result in revocation of the permit; and shall be grounds for denial of any pending permit application filed by such person. In the event of untimely payment, interest on the amount due shall be assessed at the rate determined by the secretary of administration and finance pursuant to section twenty-nine C of chapter twenty-nine. Such interest shall be in addition to any other penalty for violation of any permit condition or applicable statutory or regulatory requirement. A permit suspended under this section shall be reinstated upon payment of the fee that is owed together with the interest due.(b) Permit application fee. The department may establish by regulation a permit application fee payable by all persons filing applications for a permit, based on the department's costs for providing technical assistance, performing and analyzing such environmental monitoring as is necessary to act on such applications, processing such applications and issuing decisions and, where no annual assurance registration fee is established, on the department's costs for monitoring, inspection, technical assistance, and enforcement activities necessary to ensure compliance by persons holding such permits. Such fees may be based on a scale that accounts for the department's costs appropriate for different categories of permit applications and permits. Permit application fees shall be payable upon filing the permit application. In instances of severe financial hardship, the commissioner or his designee may grant a timely request to extend the time for making payment. The department may require that persons applying for permits as a result of enforcement action by the department or another agency of the commonwealth or its subdivisions pay double the otherwise applicable application fee.In establishing appropriate categories of permit applications for the purposes of this subsection, the department shall consider the administrative expense associated with transfer of funds between state agencies and the department and shall exempt state agencies from payment of a permit application fee whenever such costs would represent a substantial proportion of the fee. Nothing in this section shall be construed to diminish the authority provided by section seventeen of chapter two hundred thirty-six of the acts of nineteen hundred and eighty-eight.(c) Schedules for timely action. For each permitting program for which a fee is established pursuant to subsection (b), the department shall concurrently establish by regulation a schedule for timely action by the department on such permits. Such schedules may be based on the lengths of time appropriate for different categories of permit applications and permits, and may make provision for situations when more than one permit is required for the project or activity. Each such schedule shall contain the following:—(1) the schedule shall begin when an application is received by the department and the application fee paid;(2) one or more periods of reasonable length, based on the nature and complexity of the review required of the department, at the end of which time the department shall issue a decision to grant or deny the permit, or an identification of deficiencies in the application; provided, that the schedule may also reasonably limit the amount of time in which the applicant may remedy such deficiencies;(3) a period of reasonable length, based on the nature and complexity of the review required of the department, beginning with receipt of materials submitted by the applicant in response to the department's identification of deficiencies, at the end of which time the department shall issue a decision to grant or deny the permit;(4) allowance for applicable state or federal public participation requirements;(5) a provision extending the time periods set forth in clauses (2) and (3) when action by another federal, state, or municipal governmental agency is required before the department may act, when judicial proceedings affect the ability of the department or the applicant to proceed with the application, 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, or when the applicant provides written assent extending any applicable time period; and(6) a provision indicating whether the schedule shall be applied to all such permit applications pending before the department at the time the regulation is adopted upon payment of the fee, or whether the schedule shall apply to persons with pending applications for such permits who elect to pay the fee.Should the department fail to take timely action on a permit application within a period set forth in the applicable schedule pursuant to clause (2), one day shall be subtracted from the number of days allowed for the department's next action in the appropriate schedule pursuant to clause (2) or clause (3) for each day that the department's action is tardy, unless the period has been extended pursuant to clause (5). Should the department fail to take timely action on a permit application within the time period set forth in the applicable schedule pursuant to clause (3), subject to any adjustment required by the preceding sentence, the department shall refund without further appropriation the permit application fee paid by the applicant unless the period has been extended pursuant to clause (5), and shall continue to process the permit application. The requirements of this subsection (c) shall not apply to adjudicatory hearings conducted by the department.(d)(1) In establishing permit application fees pursuant to subsection (b) and schedules for timely action pursuant to subsection (c), the department may by regulation define certain categories of projects for which appropriate fees and schedules pursuant to such subsections cannot be established by general rule, based on the size, novelty, complexity, or technical difficulty of such projects. Projects within categories so defined shall be called individual rule projects. The department shall establish an alternative permit application fee, schedule for timely action, and annual compliance registration fee as appropriate for each individual rule project in accordance with clause (3) of subsection (d).(2) When the department determines, based on the size, novelty, complexity, or technical difficulty of a project for which a permit application is filed, other than an individual rule project, that the amount of work required by the department in processing such permit application will exceed by a factor of two or more the amount of work assumed as the basis in establishing a permit application fee pursuant to subsection (b), and cannot be completed within the schedule for timely action applicable to such permit applications pursuant to subsection (c), the department shall notify the applicant of such determination within thirty days of receiving the permit application, and shall within forty-five days of providing such notice establish an alternative permit application fee, schedule for timely action, and an annual compliance assurance fee as appropriate to clause (3) of subsection (d).(3) Within forty-five days of receipt of an application for an individual rule project, or of making a determination pursuant to clause (2), or within such other period as agreed to by the applicant, the department shall establish, following negotiation with the applicant, an appropriate permit application fee and alternative schedule for timely action, based on the costs and time of the extraordinary work required to process such permit application. In no such case shall the applicable fee be lower than fees established by regulation for that class of permit, nor shall the schedule for timely action require action more rapid than the time for comparable action allowed in the schedule established by regulation for that class of permit. The department shall establish an annual compliance assurance fee as a condition of a permit issued for such projects, based on the costs of the department reasonably necessary to ensure compliance with the permit. The permittee may request the department to adjust any such compliance assurance fee whenever the department reviews fees pursuant to subsection (j), or may request such an adjustment as a permit modification. The department may by regulation establish an average daily or hourly rate, expressed as a loaded rate per day or hour of technical staff time, based on the department's average costs, to be used as a reference point in establishing such fees. The department may by regulation establish a maximum permit application fee to serve as an upper bound on the fee that may be established under this subsection (d) for any particular permit application or category of permit applications.(4) A permit applicant aggrieved by the department's action in establishing a permit application fee or schedule for timely action pursuant to this subsection (d) may within ten days take either or both of the following actions:(i) The applicant may notify the department that it wishes to proceed on a true cost basis. Upon receipt of payment of one half of the fee amount established by the department as a deposit, the department shall diligently and in good faith process the permit application, taking all reasonable measures to achieve compliance with the timely action schedule established by the department; provided that, failure to meet such schedule shall not result in a refund of the fee paid. The department shall provide a monthly cost statement to the applicant based on the average daily or hourly rate and the days or hours of work performed by technical staff. Whenever the department's costs as reflected in the cost statement exceed the balance already paid by the applicant, the applicant shall promptly pay all outstanding amounts. Failure by the applicant to make such payments shall be grounds for the department to discontinue work on the application. The department shall withhold its decision on the permit application until the applicant has made full payment. Nothing in this section shall prevent the department from denying a permit request where it finds the application inadequate.(ii) The applicant may request an adjudicatory hearing pursuant to chapter thirty A. No permit application fee shall be due, and no schedule for timely action shall be in effect, pending resolution of such a hearing request, except as provided in the preceding paragraph if the applicant elects to proceed on a true cost basis. In any such hearing, or any hearing concerning an annual compliance assurance fee established as a permit condition, the average daily or hourly rate established by regulation shall be used as the basis of the fee determination, and the fee and the schedule for timely action established by the department shall be revised only where the applicant demonstrates by a preponderance of the evidence that the department's position was unreasonable, arbitrary, or capricious.(5) The commissioner shall annually file a report outlining all fees and schedules established pursuant to this subsection (d) and setting forth the basis on which the determination to establish such fees and schedules was made with the advisory committee, the secretary of environmental affairs, the secretary of administration and finance, the joint committee on natural resources and agriculture, and the house and senate committees on ways and means.(6) Notwithstanding the requirements of clauses (1) to (4), inclusive, the department and a permit applicant may agree upon appropriate fees, related funding and schedules for projects meeting the criteria in clauses (1) and (2) or for projects determined by the commissioner to be of significant environmental interest to the commonwealth or that are consistent with sustainable development principles. With input from the advisory committee the department shall establish guidelines for the implementation of this subsection, including ensuring consideration of the allocation of department permitting resources and whether the project serves a significant public interest, and offers opportunities to restore, protect, conserve or enhance natural resource. All amounts received by the department for these projects shall be deposited in the fund established in clause (7) and may be expended by the department in accordance with the requirements of clause (7).(7) There shall be established and set up on the books of the commonwealth a separate trust to be known as the Special Projects Permitting and Oversight Fund. There shall be credited to the fund all amounts received by the department from permit applicants for projects identified in clause (6). All amounts credited to the fund may be expended by the department without further appropriation for the purpose of permitting, technical assistance, compliance, other related activities associated with said projects, including all direct and indirect costs of department personnel or contractors. With agreement of the project applicants, any amount credited to the fund in excess of the amount expended to complete the department's permitting, technical assistance, compliance, or other related activities associated with said projects, may be retained in the fund. The funds may be expended by the department to support projects in economically distressed areas. An economically distressed area is an area or municipality that has been designated as an economic target area, or that would otherwise meet the criteria for such designation under section 3G of chapter 23A. The department's expenditure of the funds shall be in accordance with relevant state law applicable to the expenditure and record keeping of state funds and shall be subject to audit by the state auditor.(e) The department shall establish by regulation a reasonable filing fee to be payable by all persons requesting adjudicatory hearings before the department; provided, that the fee may be waived by the department upon a showing of undue financial hardship. Such fee shall not be disproportionately large compared to fees required to file an action in the superior court.(f) The department may establish by regulation fees for performing laboratory or other technical analyses, based on the department's costs for performing such analyses. Such fees shall be payable by any person, city, town, county, district, authority, agency, or tribal housing authority thereof who requests such services.(g) The department may establish and collect reasonable fees for providing public record information to persons or cities, towns, counties, districts, authorities, agencies or tribal housing authorities thereof who request such information, including costs of searching for, and costs of, copying such records, pursuant to section ten of chapter sixty-six.(h) The department may establish and collect reasonable fees for conducting, producing, or providing specifically targeted seminars, training sessions, written materials, or other forms of technical assistance pertaining to its permitting, compliance, and enforcement activities, where participation in such technical assistance programs is voluntary. Fees for providing such technical assistance shall be based on the department's cost for developing, producing, and making available such technical assistance. The department may conduct or produce such technical assistance programs jointly in cooperation with any person.The department may, in compliance with applicable law governing procurement services by state agencies, contract with qualified third parties to provide such technical assistance to persons, cities, towns, counties, districts, authorities, agencies or tribal housing authorities requesting it; provided, that before entering such a contract, the commissioner shall determine that the cost of providing such technical assistance through a third party shall not exceed the cost of providing such technical assistance directly by the department. In no case shall the fee for such technical assistance provided by a third party exceed the fee established by the department for the same or comparable services when provided by the department.(i) As a precondition to the department's authority to establish annual compliance registration fees pursuant to subsection (a) and permit application fees pursuant to subsection (b), and prior to the first establishment of such fees, the commissioner shall make findings in the administrative record that:(1) the department has completed promulgation of revisions to its regulations governing Plan Approval and Emission Limitations, codified at 310 CMR 7.02, as in effect on January first, nineteen hundred and ninety;(2) the department has made publicly available a first year report on its compliance pilot project in the Blackstone river basin;(3) the commissioner has appointed members of the advisory committee on fees and program improvements; and(4) the department has begun work, together with the advisory committee or with one or more work groups, each of which shall include one or more members of the advisory committee as well as department personnel and other interested persons, to produce a report with recommendations on each of the following issues: (i) the advantages, disadvantages, and opportunities for increased reliance on work by parties other than the applicant and the department in the department's permitting and compliance programs; (ii) development of a strategy or strategies the goal of which is to eliminate permitting backlogs within six to twenty-four months of enactment of this section; (iii) development of a strategy or strategies the goal of which is to eliminate compliance and enforcement backlogs within six to twenty-four months of the enactment of this section; (iv) evaluation of potential revisions in the sewer connection permitting program and potential federal delegation of the surface water discharge permitting program; and (v) administration and collection of fees established pursuant to this section.(5) A copy of such findings shall be provided to the advisory committee, the secretary of environmental affairs, the secretary of administration and finance, the joint committee on natural resources and agriculture, and to the house and senate committees on ways and means. This subsection shall not affect the validity of fees in existence prior to enactment of this section.(j) On or before July first, nineteen hundred and ninety-two and on or before July first of every second year thereafter, the department shall review all fees and schedules established pursuant to this section, and shall by regulation adjust fees and schedules as necessary to reflect changes in regulatory requirements, technologies, the nature and cost of the department's permitting and compliance activities, and improvements in the department's practices and procedures. Prior to proposing such regulations in nineteen hundred and ninety-two, as a precondition to continued authority to establish and collect annual compliance assurance fees pursuant to subsection (a) and permit application fees pursuant to subsection (b), the commissioner shall make findings in the administrative record that:(1) each of the reports required by clause (5) of subsection (d) has been completed, and that the department has considered the recommendations of those reports in its proposed regulations adjusting the fees and schedules;(2) the department has begun work, together with the advisory committee or one or more work groups, each of which shall include one or more members of the advisory committee, as well as department personnel and other interested persons, to produce a report with recommendations on each of the following issues: (i) the potential for consolidating reporting requirements in permits or regulations; and (ii) training and outreach, including identification of improvements in training for department staff and in outreach efforts to educate persons requiring permits. The recommendations of such reports shall be included in the report submitted in nineteen hundred and ninety-two by the commissioner pursuant to subsection (k). A copy of such findings together with proposed regulations shall be provided to the advisory committee, to the secretary of environmental affairs and the secretary of administration and finance at least forty-five days prior to promulgation of such regulations.Notwithstanding any other provision thereof to the contrary, no fee or other charge and no increase of any existing fee or charge shall be imposed pursuant to this section unless a copy of the proposed regulations establishing said fees shall be submitted to the joint committee on natural resources and agriculture and the house and senate committees on ways and means for their review and recommendations at least forty-five days prior to the promulgation of such regulations.(k) Annual permitting and compliance report. On or before October first, nineteen hundred and ninety-one, and on or before October first of each year thereafter, the department shall submit to the advisory committee on fees and program improvements, the secretary of environmental affairs, the secretary of administration and finance, the joint committee on natural resources and agriculture, and the house and senate committees on ways and means an annual report on compliance and permitting efforts in the preceding fiscal year. Such report shall include, without limitation: an identification of the revenues received pursuant to this section and the department's appropriation from the General Fund; a statement identifying all expenditures from the Environmental Permitting and Compliance Assurance Fund established pursuant to section two M of chapter twenty-nine; a statement outlining the costs of performing permitting and compliance assurance activities; the number and amount of permit application fees refunded; the number of permit applications received; the number of permit decisions issued; a statement identifying the department's accomplishments with respect to compliance and enforcement compared to the department's goals; the department's goals for compliance and enforcement activities for the following fiscal year; the information with respect to alternative fees and schedules required by subsection (d); and a summary of the significant improvements the department has made in its permitting and compliance programs. For any year in which the department did not meet its goals for compliance and enforcement activities, the report shall include a plan demonstrating how the department will meet its compliance and enforcement goals for the following year. In nineteen hundred and ninety-one and nineteen hundred and ninety-two, the report shall also include a description of the department's progress in eliminating permitting backlogs, including identification of successes or problems.(l) All moneys received by the department pursuant to this section, and not refunded to permit applicants pursuant to subsection (c), shall be deposited in the Environmental Permitting and Compliance Assurance Fund established pursuant to section two P of chapter twenty-nine, and used, subject to appropriation, solely for the purposes set forth therein; provided, however, that moneys received from annual compliance assurance fees, permit applications, and technical assistance fees shall be used solely for those purposes.(m) Regulations establishing fees pursuant to subsection (a) or (b), and schedules for timely action pursuant to subsection (c), shall not be in effect in any fiscal year in which appropriations for ordinary maintenance of the department from state funds other than the environmental challenge fund and the environmental permitting and compliance assurance fund do not exceed the baseline figure set forth herein. The baseline figure for fiscal year nineteen hundred and ninety-one shall be eighteen million two hundred and ninety-eight thousand four hundred and fifty-three dollars. The baseline figure in subsequent fiscal years shall be a comparable amount, as determined by the legislature, based on inflation, the department's demonstrated program improvements and efficiencies in areas other than those supported by such fees, and added or reduced programmatic responsibilities of the department.(n) In the event that the requirements of this section conflict with applicable federal requirements pertaining to the establishment and collection of permit application or compliance assurance fees by the department, such federal requirements shall take precedence over the conflicting requirements of subsections (a) to (f), inclusive, and the department shall have the authority to establish by regulation and to collect such fees in accordance with the applicable federal requirements.