March 30, 2020
Permit Deadline Extensions
Many projects in Massachusetts require environmental permits or licenses in order to go forward, subject to various deadlines that could be affected by the challenges presented by response to the COVID-19 pandemic. Legislation to grant forbearance of certain municipal proceeding and permits, H. 4580, passed the Massachusetts House on Friday and is pending in the Senate.
In the meantime, Massachusetts Governor Baker addressed the issue as to state permits through Executive Order No. 17, Order Suspending State Permitting Deadlines and Extending the Validity of State Permits. This Order applies to a wide range of state approvals and proceedings, extending validity of current permits and licenses, extending appeal periods, and hearing deadlines. The Order will be in place until rescinded or until the state of emergency is lifted.
Constructive Approvals
Tolled, will resume running 45 days after termination of the state of emergency.
As such, failure of a state permitting agency to issue a decision granting, approving, or denying a submittal will not result in constructive or presumptive approvals.
For example, by regulation some remediation filings are considered approved if MassDEP does not act within a certain number of days. During this emergency, such regulations are ineffective, and applicants must wait for MassDEP to act. Cleanup and remediation work has been deemed an essential service so as cleanup work continues, for the most part without the need for MassDEP day-by-day approval. Some approvals are required, generally for work deemed time sensitive, including Immediate Response Action Plans which absent this Order are presumptively approved 21 days after submittal, but now must wait for MassDEP review. That said, at its Superfund Advisory Committee meeting on March 26, 2020, aired via Zoom, MassDEP indicated that its staff is effectively working remotely and is able to access and review electronic filings so it may be that documents ordinarily subject to presumptive approval will be reviewed without delay.
The Order is also interesting for what it doesn’t cover; delays in compliance with cleanup deadlines. At its March 26, 2020 meeting MassDEP emphasized that parties conducting response actions can submit BWSC Form 121, Notification of Delay in Compliance and check the Force Majeure box for work delays due to COVID-19 state of emergency. MassDEP generally uses this form to exercise enforcement discretion but in the past has stated that it doesn’t eliminate the non-compliance. This point is particularly relevant for parties asserting “Eligible Person” status (or any of the other exemptions and defenses in chapter 21E) because such owners and operators must remain in compliance in order to assert the liability protection afforded by Chapter 21E.
While MassDEP does not make that determination, its past guidance has made it an issue to consider.
During the current State of Emergency, MassDep recommends that an Eligible Person do the following when filling out BSWC-121:
- The BWSC121 does not require an LSP signature, however make sure to check the Force Majeure box. When filling out the form it must include the following three items:
- Identify the deadline that is being delayed;
- For reason of delay, one should write Massachusetts State of Emergency COVID-19, and briefly describe why it prevents you from meeting the relevant deadline
- Duration for the delay, one should write “until the Emergency Conditions are over.”
Hearing Deadlines
Commencement of hearings are suspended, and will resume running 45 days after termination of the state of emergency.
Hearing deadlines have been a useful tool ensuring that permitting appeals are resolved in a timely and efficient manner. For the time being however, requirements that hearings commence within a specific period of time after the filing of or appeal of a decision on an application, order, notice of intent, petition or request for an approval is suspended.
For example, MassDEP’s wetlands regulations establish definitive hearing time lines, requiring that hearings commence within 30 days of filing and conclude with the issuance of a Final Decision by the Commissioner within six months, absent a determination that the project is major or complex. This provision applies to any hearing that should have started after March 10, 2020 when the Governor declared a state of emergency.
Decision Deadline
Suspended, will commence running 45 days after the State of Emergency ends.
While agency staff are working remotely, the challenges that change in location and connectivity pose could result in delayed decisions. Waiving statutory and regulatory deadlines for decisions relieves agencies from this pressure and places projects on hold until decisions are issued, but many projects are paused during the State of Emergency, regardless. For example, if one of MassDEP’s regional office receives a request for a Superseding Order of Conditions, its’ decision need not be issued within the timeline of 35 days for a Superseding Determination of Applicability and 70 days for a Superseding Order of Conditions.
Appeal Rights
Preserved, will commence running 45 days after the State of Emergency ends.
Ordinarily missing an appeal deadline means losing the right to appeal because meeting the appeal deadline creates the jurisdiction of the reviewing body – whether an administrative or judicial. As a result of this Order, any person aggrieved by an appealable decision issued by a state permitting agency will have ample time to file an appeal. This Order tolls all such appeal periods which will run for 45 days after the state of emergency, whether it was a 10 day appeal period under Chapter 131, section 40, the Wetlands Protection Act or a 30 day appeal under the Chapter 30A, the Administrative Procedures Act.
Permit Tolling
Expiration dates have been extended.
Any approval that was valid as of March 10, 2020, when the Governor Declared a State of Emergency, will remain in effect, regardless of its issued expiration date. These dates toll during the state of emergency, and unlike the suspended periods mentioned above, will begin to run again when the State of Emergency is lifted. Agencies are authorized to extend or waive conditions or deadlines within an approval if the permit holder is unable to meet them due to the State of Emergency. This extension and forbearance does not apply to any approval which was in violation of the terms and conditions of the approval as of March 10, 2020.
As such, if you have a permit that would have expired on March 10, 2020 but was valid on that date, it remains in effect until the State of Emergency is terminated. Deadlines and conditions internal to the permit can be waived in the agencies discretion, giving them the opportunity review each permit on a case-by-case basis.
MassDEP Intended Use Plan
Public hearing is not required.
Annually, MassDEP issues an Intended Use Plan or “IUP” which details the projects, borrowers and amounts that will be financed through the Clean Water State Revolving Fund (“CWSRF”) loan program. This program is a joint federal-state financing loan program that provides subsidized loans to improve and protect water quality and public health in Massachusetts. MassDEP issued a draft IUP in February 2020 offering approximately $500 million to finance clean water projects and under the State Revolving Fund regulations, MassDEP is directed conduct a public hearing before finalizing. The Order suspends the public hearing requirement and instead allows MassDEP to adopt the priority list based upon publication of the draft and consideration of public comments that were submitted prior to the cancelled hearing date which was March 16, 2020.
Order No. 17 continues Massachusetts efforts to focus resources on essential services and give relief to projects paused due to the State of Emergency. To be ready to take advantage of the 45 days after the State of Emergency ends, track the dates that are relieved by this Order and be ready to prioritize filings.