The Massachusetts Department of Environmental Protection (MassDEP) has been working on a large scale regulatory reform process since 2011, and in furtherance of that process has released a number of regulatory changes over the past two years.

In each case the changes have simplified some regulatory processes and added new complexities to others. On February 14, 2014, MassDEP issued a final rule reform package changing the rules governing the regulation of solid waste facilities and the result is the same: some simplification and new complexity.  In this case, however, it is clear that the predominant goal of the final changes is not to simplify the regulatory structure but instead to shift significant workload and costs from MassDEP to the solid waste industry.

Beveridge & Diamond worked with members of the solid waste industry to evaluate the scope of the initial draft proposal, and in the MassDEP response to comments document released with the final rule it is clear that MassDEP listened and responded to many of the concerns raised by the industry about the sweeping scope and cost shifting of the initial draft proposal, but in many cases the requirements adopted in the final rule continue to add significant costs and regulatory burdens when compared to those that existed previously. In at least one surprising case, as discussed below, the final rule also reduces the stringency of prior environmental protections, a component of the proposal that was objected to by both industry participants and public advocates. For a copy of the final revised rule, click here. For a copy of the response to comments document, click here.

Among the changes that MassDEP has adopted are the following:

• The new rules create a new class of registered and certified third party solid waste management inspectors, who are charged with auditing and reporting on solid waste regulatory and permit non-compliance.  The purpose of this development is to allow MassDEP to transfer to private sector companies and public sector entities the responsibility to audit and report on compliance and non-compliance at solid waste management facilities. All new inspectors will need to become registered with MassDEP, which will then maintain a list of approved parties. Solid waste management facility owners and operators must then hire inspectors from the MassDEP-approved list as described below. MassDEP will create procedures for removing inspectors from the approved list, and removal will invoke a right to an adjudicatory appeal, creating new regulatory appeals opportunities under the state solid waste program.
• Solid waste facility owners and operators now have an obligation to hire third party inspection firms to conduct comprehensive unannounced operation and maintenance compliance inspections at mandated frequencies (for many facilities as often as every two months). All identified non-compliance must be reported to MassDEP, along with recommendations for corrective measures. Inspections conducted under this program must follow detailed performance standards, and inspectors must prepare inspection reports of their activities, certified under the pains and penalties of perjury. Facility owners and operators  must (i) also certify the truth and accuracy of each report, (ii) further certify that they provided any information required and requested by the inspector in a timely fashion and did not unduly influence the inspector, and (iii) submit these reports to MassDEP and the local Board of Health.
• Solid waste facility owners and operators with facilities that are subject to the existing waste bans must also hire third party inspection firms to conduct unannounced waste ban inspections on a frequency that is graduated based on the tonnage of material that is authorized for acceptance at their facilities. As with operation and maintenance inspections, waste ban inspections must follow detailed performance standards, inspectors must prepare certified inspection reports, and facility owners and operators must certify and submit these reports to MassDEP and the local Board of Health.
• Streamlined permitting requirements will apply to all solid waste transfer stations except for those that manage at least 50 tons per day (TPD) of construction and demolition (C&D) materials.  These new procedures will allow for small changes at permitted facilities without the formality of a MassDEP permit modification, but facility owners and operators will still need to submit documentation to MassDEP detailing the changes. MassDEP clarified in its response to comments document on the rulemaking that C&D material management remains a high priority issue for the agency and that it therefore  intends that any facility handling more than 50 tons per day of C&D material should not receive streamlining benefits.
• The streamlined permitting procedure will be used for several limited activities that in the past have required MassDEP permitting action. Activities eligible for presumptive approval (without MassDEP concurrence) include certain post-closure uses of solid waste facility sites that are no longer managed as solid waste facilities, the acceptance of special wastes which in the past have required MassDEP review and approval, and certain minor operational, equipment and administrative changes.
• For solid waste transfer stations with permits, new noncompliance reporting obligations now apply. Owners and operators of these facilities must now have a responsible corporate official sign, certify and submit to MassDEP compliance certifications within 120 days of the effective date of the new rule and then at least every five years after that. In addition, a number of activities will trigger the need to submit new compliance certifications prior to the five-year deadline. These certifications will require attestations, under the pains and penalties of perjury, that the responsible official has accurately stated whether the facility is in compliance, that the official has accurately identified all violations and dates by which the violations will be corrected, and that the facility has plans and procedures in place to maintain compliance.
• The solid waste management regulation now contains substantially increased reporting requirements. Solid waste facility owners and operators now have a continuing and seemingly unlimited duty to immediately correct any incorrect facts in any application, report or document submitted to MassDEP in the past, report in advance each planned change or activity which might result in non-compliance, report each change of information listed in any solid waste permit application, report by the next business day any emergency condition having an extended impact on facility operations or pollution controls, and notify of any change in owner or operator name or mailing address.
• In a surprising relaxation of stringent tonnage controls at transfer stations, the rules now provide that transfer facilities permitted to accept 50 TPD or more of solid waste may now increase their tonnage by up to twenty five percent (25%) beyond the limits authorized in their MassDEP permit without the need to obtain any MassDEP permit approval.  As indicated by the response to comments document, this change was adopted over the objections of both solid waste industry groups and citizens advocates.
• The new rules also effectively eliminate the special waste program that MassDEP has administered for decades. In the past, MassDEP approval has been required for the management of a wide array of special wastes that the agency has deemed to pose special environmental or public health concerns that require additional protections. Effective with these changes, MassDEP has removed itself from the special waste regulation process, except for some baseline performance requirements for asbestos waste, medical/biological waste, and sludge.