RESPONSE TO COMMENTS SUMMARY REVISIONS TO THE SITE ASSIGNMENT REGULATIONS 310 CMR 16.00

LISS Commissioner RESPONSE TO COMMENTS SUMMARY REVISIONS TO THE SITE ASSIGNMENT REGULATIONS 310 CMR 16.00 June, 2001 INTRODUCTION DEP held six public hearings on proposed revisions to th

COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

ONE WINTER STREET, BOSTON, MA 02108 617-292-5500

JANE SWIFT

LAUREN A LISS Commissioner

RESPONSE TO COMMENTS SUMMARY REVISIONS TO THE SITE ASSIGNMENT REGULATIONS

310 CMR 16.00

June, 2001 INTRODUCTION

DEP held six public hearings on proposed revisions to the Site Assignment Regulations, 310

CMR 16.00, and the waste ban section of the Solid Waste Management Facility Regulations, 310

CMR 19.000, in April and May, 1999 Public notices of the hearings were provided in four

newspapers of general circulation as well as in the Environmental Monitor, the Massachusetts

Register, and on the DEP web site The proposed revisions were sent to a large number of

interested parties, including the Solid Waste Advisory Committee, facility operators, the

Massachusetts Municipal Association and several environmental groups The comment period on

the proposed regulations remained open for written comment through May 14, 1999 In

addition, DEP accepted several written comments received after that date for consideration

Approximately 130 people attended the public hearings, of which 48 testified Approximately

37 sets of written comments were received A list of those submitting written comments is

included on Page 2

Modifications to the waste ban section of the Solid Waste Management Facility Regulations, 310

CMR 19.017, that were proposed were promulgated by DEP in October, 1999, with an effective

date of April 1, 2000 for the ban on Cathode Ray Tubes (CRTs) and for application of the waste

bans at transfer stations Therefore, comments submitted to the Department regarding the waste

bans will not be addressed in this document Guidance for implementation of the waste bans is

available on DEP’s web site at http://www.state.ma.us/dep/bwp/dswm/dswmpubs.htm#ban

Due to the number of comments received, this document does not include every comment made,

but rather summarizes the major areas of comment and provides DEP's response to those

comments For some comments only one response is given that addresses several individual

comments Comments have been paraphrased and in many cases several people made similar

comments, so each specific comment has not been included Comments on some issues, such as

the moratorium on permitting of solid waste facilities, are not addressed in this document since

they have been more appropriately addressed in the Beyond 2000 Solid Waste Master Plan.

This information is available in alternate format by calling our ADA Coordinator at (617) 574-6872.

DEP on the World Wide Web: http://www.state.ma.us/dep

Printed on Recycled Paper

List of People or Organizations that Commented on the Proposed Regulations

ABC Disposal

ACE

Bedford - Clean Water Action

Berkshire Regional Planning Comm

BFI

Boston Water & Sewer Commission

Boston, City of, Office of Environmental Health

Bowdoin Street Health Center

Tom Hines, Dorchester

Citizens Against Trash Transfer

City of Worcester

Clam Point Neighborhood Assn

Clean Water Action

William R Coffin & Sons, Inc

Cohasset Heights, Ltd

Cushing, Goins & Kirschner Inc

Dudley Community

Dudley Street Neighborhood Initiative

Massachusetts Environmental Collaborative

Environmental League of MA

EPA New England

Fasanella, Johnson & Wood, P.C

Frade's Disposal, Inc

GW Provision

Hardwick Landfill Inc

Town of Hardwick

E.l Harvey & Sons

Haverhill & Haverhill Environmental League

Hawthorne Youth & Community Ctr

Health Care for All

Jet-A-Way

Keegan, Werlin & Pabian, LLP

Lawrence Environmental Action Group

Lower Highland Neighborhood, Lowell

People for the Environment

Roxbury Environment Program

Roxbury/N Dorchester-Dudley Street Neighborhood AssociationSacred Heart Neighborhood Improvement Group

SEMASS Partnership

Tellus Institute

Tighe & Bond

Total Recycling

Toxics Action Center

The Trustees of Reservations

Warner & Stackpole

1 DEFINITIONS

Abutter

Comment: Expand "abutter" to include not only abutting property owners but those within a

certain distance from the solid waste facility or who are "abutters to the abutters" since impacts

go beyond direct abutters to impact a wider area Suggest including those within the maximum setbacks (1000 ft for LF, 500 ft for other) Include railroad and utility rights of way One suggestion was to revise the definition to read the same as the definition of "party at interest" in the Zoning Act, MGL C.40A

Response: The point of the comment is to provide better notice to citizens of pending actions

during site assignments To that end, rather than expand the definition of abutter, which is consistent with other Department regulations, the final regulation has expanded the list of parties who are to receive notice of a public hearing under the siting process Abutters receive direct notice of a site assignment application from the applicant once the application has been

determined to be complete Other parties that receive notice now include the local Board of Selectmen, Board of Health and library, and “abutting Boards of Health” and library (where the adjacent municipality is less than ½ mile from the site), the Department of Public Health, the regional planning agency, and most importantly, any person who requests a copy of the

application during the initial comment period Furthermore, notice must also be placed in the MEPA Monitor and in a local newspaper

DEP interprets that a "way" includes railroad rights of way and utility corridors

Comment: Should be expanded to include the occupants – not just owners – of the ten

residential dwellings closest to a proposed site – even if the dwelling properties share no

common boundary with the proposed site

Response: DEP did not make the suggested modification because it believes the proposed

definition of “abutter” is sufficient

ABC Rubble

Comment: ABC Rubble definition not helpful Modify the definition to allow de minimis

amounts of paint, for example asphalt with paint from lane lines Neither the Discussion

Document nor the Draft Modifications provide any basis to indicate that revisions are necessary

to meet the stated objectives Insertion of the words “clean” and “contaminated” introduce subjective standards and are inappropriately broad DEP should encourage the recycling of such materials and should not further complicate the current regulatory system that allows such materials to be recycled and reused productively

Response: The Department has maintained the words “clean” and “contaminated” in the

regulation and clarified that ABC rubble is to consist only of clean asphalt, brick and concrete

and that the asphalt must be pavement material (as opposed to roofing asphalt, asphalt shingles

or other asphaltic materials) The Department needs to ensure that this material, once processed

to small enough size for use, will not result in contamination if it is used as a general fill

material The Department is concerned about the contaminants that may be present in asphalt and the potential for releases to the environment of hazardous materials DEP is considering the need to further regulate the use of asphalt materials as general fill material through the solid waste management facility regulations, 310 CMR 19.000

If material has been painted or coated with materials a proponent may still possibly reuse the material as a fill material by submitting an application for a Beneficial Use Determination for that material since it does not meet the exemption requirements Furthermore, facilities

managing such material are not exempt operations under this provision of the regulations and risk losing their exempt status if they manage such materials DEP has chosen to exempt ABC crushing operations that manage clean materials because it felt that they presented minimal risks from a solid waste perspective, presuming they handle ONLY clean materials

Comment: The definition excludes “coated surfaces.” Is it the intent to exclude all painted

materials from this category of waste? If so, we oppose this revised definition and suggest DEP accept the reality that much ABC waste has been painted or lightly coated with lacquer or other surface preservative substances

Response: As noted in the previous response, DEP is concerned about contaminants that may be

present in ABC materials when used as a general fill material because the regulations exempt this material under certain circumstances DEP has therefore required that the materials consist only of clean asphalt, brick and concrete Materials that are painted or coated can still be used beneficially if a proponent receives a Beneficial Use Determination (BUD) from DEP

Facility

Comment: Remove the sentence "For purposes of site assignment setback criteria, facility does

not include the applicable portions of access roads that provide entrances to and exit from the site." Entrance and exit roads must be included in the site assignment setback criteria because facilities fail to ensure that trucks do not idle for more than 5 minutes; fail to realign queuing areas during busy times; fail to educate drivers that debris must be covered; and would not hesitate to use this proposed exclusion as a loophole to excuse themselves from assuming

responsibility for subsequent traffic mitigation

Response: The current site assignment regulations do not include this sentence It was proposed

to be added to the regulations because the compliance point for measuring setbacks was

proposed to be changed from the waste handling or disposal area to the facility boundary As is noted elsewhere in this document, the Department has decided to retain the existing compliance point for measuring setbacks, the waste handling or disposal area Therefore, this sentence has been deleted

Generally, site assigned areas include a significant portion of access roads to a site, including weigh stations, truck turnaround areas and so on, but not an entire access road Traffic related issues, such as queuing of trucks, are common to any industrial activity and are best addressed byBoards of Health and planning boards in their review of a project on the local level, whether or not the access road is included in the site assigned area Furthermore, Boards of Health may place reasonable conditions on the operation of a solid waste facility to ensure “that the facility

or expansion thereof will not present a threat to the public health, safety or the environment.” (M.G.L C.111, s.150A) Traffic related issues can be dealt with by the Board of Health through such conditions

Comment: Request the deletion of the phrase "all land" because the inclusion of "all land" can

lead to unequal administration of the regulations Could have the effect of penalizing facilities

that purchased and site assigned a large piece of land to establish a buffer area with the intent of limiting the solid waste activities to a small portion of the site.

Response: The words "all land" will remain in the regulation The definition clearly establishes

that a facility includes all those areas where solid waste will be handled, stored, transferred, treated or processed and is to include all those areas of land on which these activities occur and are directly related to solid waste activities A buffer zone area would not be included in this definition of "facility" because it is not directly related to a solid waste activity

The draft regulations had proposed to measure setbacks from the “facility,” but the final

regulations will measure setbacks as they are currently measured in the regulations, from the waste handling or disposal area, depending on the type of facility This section was added to the definition because the draft regulations proposed to change the measurement point for setbacks from the waste handling or disposal area to the “facility.” Because that proposal is not being adopted, there is no need for this language

Comment: Generally support this definition and the setbacks therefrom However, the phrase

“directly related to solid waste activities” might be construed too narrowly without further guidance Storage of empty waste containers has been a problem The Department should add

“ – including areas used for waste vehicle parking and storage of waste containers.”

Response: The definition was not modified any further because parking areas, container storage

areas and other developed areas of a site are considered part of the facility as “structures and improvements which are directly related to solid waste activities.” The permit for a solid waste management facility should adequately address those areas of a site where containers are parked

New Site

Comment: Add language to restrict the definition to include only sites that were legally

assigned pursuant to the solid waste statute

Response: The regulations were not modified as suggested There are two types of sites which

require site assignments The first is a site where there has never been a solid waste facility, while the second is the expansion of an existing solid waste facility onto new land adjacent to theexisting facility, or in some cases vertically where the previous assignment contained either a height or volume limit The use of the term “New Site” is to make it clear that such a site must apply for a site assignment and to distinguish it from a site seeking an expansion

Potentially Productive Aquifer

Comment: Support this revision to the regulations to provide greater protection to these areas

even if municipality has not done so

Response: The Department recognizes that some aquifers of the state, while they may not be in

use for a municipal water supply at this time, are capable of providing both the quantity and quality of water necessary for a municipal supply at some point in the future and should be protected

Site Assignment

Comment: Do not grandfather existing transfer stations There is no specific statutory language

addressing the grandfathering of transfer stations, unlike for landfills, when the statute

established the site assignment process in 1955 We believe that “grandfathering” exceeds the intent of the 1970 authorizing act Grandfathering as a legal concept was established to protect property rights in matters of zoning law and its use should be confined to such It has no place inmatters of public health

Comment: In effect, the proposed grandfathering provision would bestow valid site assignment

upon a transfer station that meets the articulated requirements, even if the facility never obtained

an original site assignment from the local board of health

The proposed provision must fail because it exceeds DEP’s authority to regulate transfer stations pursuant to c.111, s.150A In addition, the proposed provision is dangerous from a public policy perspective, as it would effectively undermine the ability of affected communities to defend themselves against the siting of transfer stations that may threaten public health and the

environment The only statutory reference to the grandfathering of solid waste facilities is

“dumping ground[s] for garbage, rubbish or other refuse” and “refuse disposal incinerators.” The legislature did not add a grandfathering provision when it amended the statute to add “refusetransfer station” to the types of facilities regulated by the statute

Response: The proposed addition to the definition that would have grandfathered certain

existing transfer stations has been deleted There was a significant amount of comment in opposition to the provision and no positive comment was received This issue was not

specifically addressed by the solid waste statute, M.G.L C.111, s.150A, which grandfathered solid waste landfills in existence prior to the 1955 enactment of the statute The Department is therefore convinced by these comments that grandfathering of transfer stations is inappropriate

Comment: Add the words "in accordance with MGL c.111, s 150A" to the definition of “Site

Assignment” to clarify that this determination should be made only according to the applicable law

Response: This language already exists in the definition of "Site Assignment."

Speculative Accumulation

Comment: The Department should not regulate either raw materials in a recycling process or

the end product We suggest that it is inappropriate for DEP to either determine whether

“markets exist” for recyclable materials and further to require materials that clearly are

recyclable to be considered solid waste due only to the passage of time In fact, the speculative accumulation provisions as currently drafted are particularly problematic under the wood

chipping and shredding operations regulated pursuant to 310 CMR 16.05(5)(e), wherein a 90 daylimitation applies to clean wood chips Land clearing operations occur throughout the year, however, markets for reuse of clean wood chips may be primarily seasonal Accordingly, we suggest that the regulations be revised to eliminate the 90 day restriction altogether

Response: DEP disagrees with this suggestion Speculative accumulation is an important factor

in determining whether an operation is a “sham recycling” operation that takes in waste

materials, charging a tipping fee, and then simply stockpiles the waste materials with no market available DEP’s intent is that a facility manage and process only materials that are recyclable,

ie being used, versus storing a waste material that has simply been disposed by placing in a pile either before processing or after with no intent to recycle the material Recyclable materials that are used in an exempt manufacturing process, such as recyclable paper in a paper mill or

recyclable plastic in a plastics manufacturing plant, are not generally subject to this provision

16.05(3) Conditionally Exempt Recycling Operations

Comment: Exempt facilities have created problems in Boston and the Board of Health (BOH)

has had to enact regulations to restore local control of such activities Exemptions from site assignment need to be carefully considered because they exempt facilities from BOH decision making BOHs have only an advisory role in MA DEP permitting or granting of exemptions

Response: Most of the exemptions established in the Site Assignment Regulations exempt

manufacturing facilities, recycling operations and other types of operations that DEP has

historically not regulated under solid waste regulations and which have not required site

assignments under the solid waste statute The purpose for including these exemptions is to make it clear that although many of these operations handle recyclable materials, they are not considered solid waste facilities The exemptions in 16.05(3) are conditioned upon the

incorporation of good management practices and prevention of unpermitted discharges of

pollutants or causing a nuisance The presumption is that if these conditions are not met then DEP considers these operations to be solid waste facilities requiring site assignment and a public hearing by the Board of Health Furthermore, when such operations do not meet the conditions, both DEP and Boards of Health have adequate authority to take action to require the abatement

of such problems

16.05(7)(c): Information on Site

Comment: Drainage patterns, approximate slopes anticipated after construction and

groundwater or stormwater control or treatment structures to be used during and after

construction should be included in 16.05(7)(c), “Information on the Site.”

Response: The suggested change was not adopted 16.05(7)(c)3.b adequately addresses this

issue

2 SITE ASSIGNMENT APPLICATION AND PUBLIC HEARING PROCESSES

16.08: Site Assignment Application Submission Requirements

Comment: Citizens cannot meaningfully comment on proposed sites without an opportunity to

review the application Simply making it available at public agencies has proven inadequate for several reasons Citizens need to receive copies of applications in advance in order to evaluate the proposed site, gather evidence, and prepare testimony Strongly recommend DEP add the following provision “(f) Upon request, the applicant shall also provide a copy of the application

to any resident of the municipality in which the proposed site is located.”

Response: The regulations will be amended to adopt language similar to that contained in the

MEPA regulations where the facility proponent must send a copy of the application to those persons requesting a copy However, given that Site Assignment applications can be large, complex documents which may include numerous maps and drawings which are difficult to copy, the regulations will include the provision included in the MEPA regulations that the proponent may charge the cost of reproduction for these copies

16.10(4): Public Notice of Application

Comment: Add a paragraph (d) requiring an applicant that has been subject to MEPA to file a

notice in the Environmental Monitor that a completed site assignment application has been filed with the BOH This alerts those that commented in the MEPA process that an applicant has proceeded to submit a site assignment application

Response: The regulations will be amended to include such a requirement.

Comment: Subsection (b) should be amended so that the notice includes the right of residents of

the municipality to receive a copy of the application as provided in 16.08(f)

In addition, DEP should recognize that many residents simply do not read legal notices DEP should require that: “(d) the applicant shall mail a copy of the published notice of the application

to any individual or entity which has provided its name and addresses to the board of health to request receipt of such notices within the calendar year that the application is submitted to the Department.”

Response: The regulation has been modified to require that the applicant notify all parties listed

at 310 CMR 16.08(2) This section includes abutters, the local Board of Health and library, abutting Boards of Health and library, DEP, DPH, the regional planning agency, and any person that requests a copy of the application The notice must state that an application has been filed with DEP and the Board of Health for site assignment Subsection (b) was also amended to require the name of the person to whom requests for copies of the application should be sent be included in the public notice

16.20(7): Initiation of Hearings

Comment: The existing time frame for notice and commencement of hearings does not provide

citizens with sufficient time to gather evidence, prepare witnesses, and retain counsel Providingbetter notice would go a long way toward preventing such unbalanced situations at public

hearings Recommend two changes: change 30 days to 90 days for commencement of the hearing after the public notice; and require notice to be provided 80 days prior to the hearing rather than 21 days

Response: The timeframes for public notice and commencement of public hearings are

established in the solid waste statute, MGL c.111, s.150A To modify these time frames would require modification of the solid waste statute before the regulation could be amended

16.20(9): Intervention and Participation, Ten Citizens Groups

Comment: Recommend that any person be permitted to testify at hearings and have their

written comments considered by MA DEP and the BOH It should be made clear that persons need not be US citizens Hearing officers can reasonably control time allowed for testimony

Response: The regulations do not in any way limit testimony to only US citizens Any person

may comment under the current regulations

Comment: Support the added language that clarifies that citizens may comment on matters of

public health and safety in addition to issues regarding "damage to the environment." The burden of proof as to what is safe must be on the industry Endorse DEP’s proposed clarification

that public health and safety issues lie within the acceptable scope of Ten Citizen Group

Intervention

Response: The final regulation has been modified to clarify that persons may comment on

matters of public health and safety and are not limited only to commenting on "damage to the environment," as was always intended by the statute and the regulations

Comment: Applicants should not be able to talk about job creation, building the tax base, or any

other economic benefits of their proposal – unless citizens can talk about the economic

detriments thereof

Response: The site assignment process is supposed to consider only whether a site is suitable

from the standpoint of public health, safety and the environment, not extraneous issues

16.21(1): Alternative Use of Assigned Site

Comment: To the extent that the proposed modification of this section facilitates grandfathering

of transfer stations, we oppose it resolutely

Response: This section does not grandfather a transfer station, but rather does allow an existing

site assignment at a landfill to be modified, after due notice and a public hearing, to allow a transfer station to be constructed on the site of the landfill DEP considers a transfer station that handles no more waste than the former landfill to have many fewer potential impacts on public health, safety and the environment

16.21(3)(b):

Comment: By allowing transfer stations to operate where landfills or combustors have long

since closed, the regulation prejudices residents and other sensitive uses established since

closure, and unduly inhibits economic development around the old site The section should be amended to add “for a period of two years or less” to limit application of this section

Alternatively, DEP should modify 16.40(3)(b)3 to prohibit waivers from any setback

requirements in 310 CMR 16.40

Response: No revision of this section of the regulations was proposed in the public hearing

draft, therefore the regulation was not modified as suggested It should be noted that unless the Board of Health limits the period of a site assignment, the assignment is effective in perpetuity and the statute requires that a notice of such activity be recorded in the applicable Registry of Deeds Unless the assignment has been restricted to a specific period of time by the Board of Health, which is rare, it would allow other solid waste activities to occur at that site In addition, any handling facility to be sited at such a site is required to handle no more waste than the existing facility was permitted to handle In addition, it must meet the setback criteria for waste handling facilities These setbacks would apply to any sensitive receptors that may have located near the site since a landfill operated on the site While waivers are possible, waivers under the siting regulations are difficult to obtain

16.22: Modifications to and Rescissions and Suspensions of Site Assignments

Comment: DEP needs to make clear how a BOH will know whether an application is major and

therefore requires a DEP site suitability report before the BOH hearing, or minor, requiring no DEP action before the BOH hearing

Response: The proposed language provided guidance on what constitutes a “major

modification.” The regulation was amended to further clarify that a “major modification” included proposals to “expand a site” and referencing more specifically sections of 16.21, Alternative Uses of Assigned Sites

Comment: Add a paragraph (4) requiring the applicant to file a Notice of Project Change with

MEPA where the project was previously subject to MEPA and attach the Secretary's Certificate

on the Notice of Project Change to the new site assignment application

Response: The regulation was modified by adding paragraph (4) regarding MEPA review The

paragraph notifies the applicant that filing of a Notice of Project Change with MEPA may be required and if MEPA requires such Notice of Project Change, the applicant must comply with

310 CMR 16.08(5)(d) (MEPA certification requirements) prior to submitting a new site

assignment application

Depending on the nature of the modification, the MEPA regulations may well require the filing

of a Notice of Project Change, but not necessarily in every case It is the applicant’s

responsibility to check with MEPA for a determination before filing with DEP Furthermore, DEP will not consider an application to be complete and therefore can not issue a site suitability report unless the applicant has adequately demonstrated that it has complied with all MEPA requirements, or that MEPA did not apply, as required at 310 CMR 16.08(5)(d)

Comment: Support restating the statutory language allowing DEP and BOHs to rescind,

suspend or modify site assignments on their own initiative, but oppose allowing facility operator

to request either a major or minor modification unless the regulations also include specific procedures for public input by ten-citizen groups and individuals into those applications and unless there are more specific criteria to distinguish between a major modification and a minor modification

Response: Regarding public input into modification of a site assignment, in either a major

modification or a minor modification, the BOH is required to hold a public hearing after due notice, in accordance with the public hearing requirements of these regulations, specifically for the purpose of obtaining public comment

Comment: Urge DEP to add an additional new provision to 310 CMR 16.22 to establish a

formal procedure to allow citizens or Ten Citizen Groups to propose to the BOH that a site assignment be rescinded, suspended or modified or to request modifications to protect public health or the environment

Response: DEP does not believe additional language is necessary In the case of a facility

operator's request to modify the site assignment, DEP is often asked what the procedures are and these amendments to the regulations were proposed to address this issue Citizens may petition their BOH at any time to examine whether a facility poses a threat to public health, safety and the environment, just as a citizen may request the BOH to examine and address any local health problem If the BOH agrees with the citizens, it may then take action unilaterally, as established

in the statute, to rescind, suspend or modify the site assignment after due notice and a public hearing

Comment: Ten Citizen Groups should be accorded the same specific procedural rights they

have under 310 CMR 16.20, rather than the general procedures under c.30A

Response: The regulation was modified to require the same procedures be used for the public

hearing for both major modifications and minor modifications as was used for the original site assignment as established at 310 CMR 16.20

Comment: In some instances, site assignments granted long ago do not specify a ton per day

limit Thus, an operator could increase tonnage without any modification of site assignment Yet daily tonnage clearly affects the public health and environmental impacts of a facility The Department should close this loophole by adding to (3) “All increases in tons per day shall be deemed as modifications which require such hearings.”

Response: The regulations have been modified to include increases in daily or annual tonnage

limits as “minor modifications” to a site assignment, requiring a public hearing by the Board of Health In addition, an increase in tonnage may trigger the need to file an Environmental

Notification Form (ENF) with MEPA, affording another opportunity for public comment A fourth paragraph was added to notify applicants that modifications to site assignments may require filing of a Notice of Project Change or Environmental Notification Form with MEPA

Comment: The first paragraph proposes to grant the local Board of Health or DEP the authority

to “at any time rescind, suspend or modify a site assignment upon a determination that the operation or maintenance of a facility results in a threat to public health, safety or the

environment after due notice and public hearing” Such action may be taken “unilaterally” according to the Discussion Document We believe that such a provision may be

unconstitutional

Response: The solid waste statute, M.G.L C.111, s.150A, authorizes Boards of Health and the

Department to rescind, suspend or modify a site assignment This regulation simply adopts the statutory provision However, as established in the statute, such unilateral action by the Board orthe Department can only be taken after proper notice and a public hearing and must be based upon a showing that the facility results in a threat to the public health, safety or the environment

Comment: Regarding paragraphs 2 and 3, the extent to which the proposed revisions require

further regulatory filings, beyond those currently in effect, it appears that such proposals may be counter productive Based upon our experience, we suggest that operations at site assigned properties are somewhat dynamic processes that are appropriately modified over time, based upon technological innovations or otherwise Increasing the regulatory hurdles necessary for minor improvements to occur will provide a disincentive to operators in making such

improvements if public hearings are required

Response: The intent of this section of the regulations is to address how an applicant is to address the need for minor modifications or major modifications to the site assignment As

noted in the background document, there is currently no guidance either in the statute or in the site assignment regulations on the process for making either minor or major modifications to a site assignment When asked for advice, DEP has consistently suggested that the Board of Health must at least hold a public hearing on any such modification This new section of the regulations will clarify that for any revision of a site assignment due notice and a public hearing are required DEP believes this to be appropriate to allow citizens to comment on any such

revision which may have impacts to the area in which the facility is located The difference between a major modification and a minor modification is whether DEP needs to review the application and render a site suitability report regarding the proposed modification to the

assignment Where a modification is a major modification, DEP’s site suitability report will be limited to addressing criteria relevant to the modification

The comment appears to be directed more at modifications to operations of a facility Such modifications are addressed through the Solid Waste Regulations at 310 CMR 19.039 and 19.040 which establish the requirements for modification of permits

3 SITE ASSIGNMENT CRITERIA

Preamble:

Comment: Several commenters opposed making any modifications to the preamble They

argued the existing preamble is clear and based upon statutory authority

Comment: There is a widespread practice of local Boards of Health to frustrate the siting and

expansion of facilities that receive positive site suitability reports from DEP Because of this, a DEP preamble to its siting regulations is necessary to spell out with clarity the statutory

distinction between the roles of DEP and the local Boards of Health in approving the siting of solid waste facilities We strongly recommend reinsertion and adoption of the passed over Preamble language In the alternative, DEP should incorporate the exact language from the statute, M.G.L C.111, s.150A

Response: The preamble will remain unchanged.

General Comments on the Site Suitability Criteria,

Applicability of the New Setbacks:

Comment: Proposed facilities that have begun the MEPA process should be exempted from

changes in the regulations Permitting is an involved and expensive process, and where an operator has undertaken it in reliance on existing regulatory requirements, subsequent

amendments should not nullify those efforts

Response: Whenever a regulation is modified or a new regulation is established, the

Department must set a compliance date by when facilities must meet the new standards In the case of these regulations, the Department has consistently indicated that the new setbacks will apply to any application that is not administratively complete (as determined by the Department pursuant to the Site Assignment Regulations, 310 CMR 16.10) prior to the effective date of the regulations

Comment: There is no discussion regarding how the proposed revisions will limit the

development of new capacity at existing facilities Eventually, the Department will have to modify the permit review criteria in 310 CMR 19.000 to be consistent with the changes currentlyproposed A change in the permit review criteria could have a substantial effect on the continuedoperation of existing solid waste facilities In light of this fact, the Department should conduct a thorough evaluation of these effects before making any changes to the Siting Criteria of 310 CMR 16.00 The current operating, lined landfills are an integral part of an integrated solid waste management strategy These facilities and their future development areas should not be subject to future changes in the permit review criteria of 310 CMR 19.000

Response: The new setbacks will not apply to sites where an administratively complete

application for site assignment was submitted prior to the effective date of the regulations If a site already has a site assignment the revised setbacks will not apply

Comment: The proposed regulations should accommodate existing site assigned facilities and

property that is site assigned, but not yet developed Site assigned, existing facilities should be

“grandfathered” and referenced in 310 CMR 16.00 and 19.000 If existing facilities are not

“grandfathered,” the state’s capacity will be further threatened, resulting in a capacity deficit

Response: The new setbacks will not apply to sites where an administratively complete

application for site assignment was submitted prior to the effective date of the regulations If a site already has a site assignment the revised setbacks will not apply

General Comments on the Site Suitability Criteria,

Setbacks Distances:

Comment: DEP siting regulations are very strict now We question whether adding on

hundreds of feet to facility setbacks produce real or imaginary environmental benefits and ask DEP to answer whether these new setbacks are supported by measurable scientific criteria We believe facilities sited under the existing criteria are already safe and have caused no

environmental harm

Comment: No technical justification for revising the siting criteria is presented Only a handful

of disposal facilities and, perhaps, a dozen or so handling facilities have been through the site suitability process since the current regulations were promulgated Thus, the Department does not have a significant database of solid waste facilities to evaluate the adequacy of the existing criteria The current criteria should not be revised unless there are supporting scientific reasons

to do so

Comment: Despite a significant base of experience with the current siting regulations, the

Department has failed to identify any technical basis or specific experiences which would justify any modifications to the setback requirements

Response: DEP agrees that the existing siting criteria are very stringent and for the most part are

sufficient to protect public health, safety and the environment It should be noted, as addressed elsewhere in this document, that the final regulations will measure setbacks from the waste handling or disposal area, as currently required in the regulations As a result of retaining that provision, many of the setbacks, such as those for public water supplies for example, are not being modified

However, there are impacts from facilities that DEP believes are not adequately addressed by thecurrent setbacks For example, those groundwater sources that would be ideal for development

as drinking water supplies in the future because they will be able to provide sufficient quantity and quality of water, but which are not used at this time, were not protected Similarly, existing setbacks have not adequately addressed nuisance conditions such as odors, noise and dust

emanating from landfills, large transfer stations and waste processing facilities located near residential areas There is no question that larger buffers to address these types of nuisance conditions will reduce impacts from waste management facilities For such reasons, DEP

proposed revisions to the siting criteria

Comment: We urge the Department to strengthen its proposed revision to the Site Assignment

Regulations When solid waste facilities are improperly located, citizens are confronted with a whole host of environmental and public health risks In particular, we are deeply troubled by theinjustice, and cumulative risks, that result when such facilities are placed in disadvantaged communities which are already facing a wide array of public health and environmental threats

To address these concerns we urge strengthening the regulations in three crucial respects:

 Environmental Justice

 No Grandfathering

 More Protective Setbacks

Response: These three specific issues are addressed in those sections of this document that

cover each topic

Comment: Concerned that the setbacks from sensitive receptors are not sufficiently protective

of public health Most importantly, these setbacks - subsections (a)16., (c)6 And (d)5 – must protect a broader class of receptors such as all schools, daycare centers, senior centers, etc

Response: The list of receptors in the subsections noted have been clarified and broadened to

address, at least in part, the concerns raised

Comment: These same setbacks contain the curious exclusion of “equipment storage or

maintenance structures” from the facility distance Significantly, the setbacks for “resources” such as water resources or agricultural land do not exclude equipment storage The Department should provide equal protection for “sensitive receptors” by deleting this exclusion from

subsections (a)16., (c)6 And (d)5

Response: The exclusion noted above for “equipment storage or maintenance structures” refers

to structures located at a school, prison or health care facility and not such structures located at a solid waste management facility The intent of this is that the setbacks, measured from the wastehandling area of the solid waste facility, are to be measured to the sensitive receptor, (i.e the school building, prison building or health care facility building) and not to a garage or shed which is used to store maintenance equipment The storage building may be located on the edge

of the property and much closer to the solid waste handling area than the sensitive receptor itself

In the case of agricultural lands or water resources, the protected resource is the boundary of the farmed land or the limit of the protected water resource regardless of where any maintenance buildings might be located

Comment: Regarding specific setback distances, 500 feet is the minimum distance necessary to

protect sensitive receptors from the multifarious impacts of transfer stations The case for even stronger protection is buttressed by citizen’s complaints of foul odors from waste handling facilities at distances of 750 feet and even 1200 feet Nevertheless, as long as the Department adopts a strong provision considering community health status and the cumulative impacts of other pollution sources, the regulation, as a whole, would adequately address the health risks at these further distances However, if the Department decides that it is not ready to consider cumulative impacts at this time, then public health demands a setback distance no less than 1000 feet from the facility

Response: The final regulation was modified so the setback is 500 feet to a large transfer station

and 250 feet (the current setback) to a small, totally enclosed transfer station A small, totally enclosed transfer station such as often used by a small municipality, often consists of a

compactor unit into which residents dump their waste Such units are in common use for

compacting waste at businesses, grocery stores and similar types of operations and little if any impacts are associated with such operations The Department believes that 250 feet is a

sufficient setback for such operations

It is recognized that increasing the setback for large facilities from 250 feet to 500 feet will present a problem for siting such facilities in urban areas, perhaps even in some properly zoned industrial areas However, the Department believes that the nuisance conditions associated with larger facilities require a larger setback from sensitive receptors

16.40: Setbacks in General

Comment: Increasing the buffer zone to a residence is badly needed Consideration should be

given to greater increases Odors have been detected from 750 - 2000 feet of a facility At one time the statute contained a provision requiring a 750 foot setback from residences

Response: The statute never contained a provision requiring a 750 foot setback to residences

In fact, the statute has never contained any setback distances Regarding the buffer zone to residences, the regulation proposed doubling the current setbacks from solid waste facilities to residents DEP will modify the final regulation to retain the current 250 foot setback from a small, fully enclosed transfer station unit to residences DEP finds that such small transfer station units have little, if any, nuisance conditions associated with them when operated properly.DEP will increase the proposed setbacks to residences for other facilities to better address nuisance conditions

Comment: It should be clarified that purchase of a site to clear a restriction requires that the

restricted uses must end before the facility is operated as no health protection would be provided

if restricted use remains in place

Response: The current regulations allow a proponent to purchase property containing a private

well so as to establish a setback The regulations already require that purchase of such a private well is conditioned upon agreeing that the well not be used as a drinking water supply, or that it will be removed from use and capped off

Comment: The provision changing the point from which the distance is to be measured from

the “waste handling area” to the “facility”, when added to the proposal to increase the minimum distance requirements, creates an excessive combined distance requirement, for which no

justification can be found The purpose of the distance requirement is to regulate the potential impacts associated with handling solid waste, such as odor, and not the generic impacts

associated with any industrial activity, such as truck movements The latter remains subject to regulation reserved to municipalities by MGL c.40A, s.9 and should not be regulated, in the abstract, by the solid waste regulations The effect of the Department’s proposed rule would be

to establish a more stringent setback for truck movement and other similar industrial logistics than a community might deem appropriate under its own industrial district zoning

Response: DEP agrees that changing both the setback distances and the point of compliance

from which setbacks are measured may have been excessive The final regulation will maintain