SITE ASSIGNMENT IN MASSACHUSETTS: PRESCRIPTION FOR AN AILING PROCESS 6 th Annual SWANA Recycling and Solid Waste Conference September 23, 2008 Marlborough, Massachusetts Stephen M. Richmond, Beveridge & Diamond, P.C. James A. Harvey, E.L. Harvey & Sons, Inc. Beveridge & Diamond, PC 1
Massachusetts Site Assignments Controversial Contentious Confusing Colossally Expensive Beveridge & Diamond, PC 2
Structure of Our Presentation Explain Statutory Structure. Case Study - Provide Example of Problems Encountered During Site Assignment. Propose Changes to Streamline and Simplify Process. Beveridge & Diamond, PC 3
Site Assignments: Statutory Structure G.L. c. 111, 150A Noisome Trades. Unlike a Permit, Site Assignment Approves Location. Applies Only To: Landfill, Refuse Transfer Station, Refuse Incinerator, RRF, Refuse Compost Plant, or Other Works for Treating/Storing/Disposing of Refuse. Beveridge & Diamond, PC 4
Site Assignments: Statutory Structure BOH Decision on Site Assignment Must Be Based on Criteria Established by DEP Pursuant to 150A 1/2. Application Submitted to DEP and BOH. DEP Issues Site Suitability Report Stating Whether Site Meets Siting Criteria. BOH Holds Public Hearing. Beveridge & Diamond, PC 5
Site Assignments: Statutory Structure DEP Must provide Advice, Guidance, Technical Assistance to BOH Upon Request. BOH Issues Siting Decision. For BOH to Site Assign, DEP Must Conclude Siting Criteria Are Met. BOH Must Site Assign if DEP Concludes Criteria Are Met, Unless it Finds, Based on Siting Criteria, A Danger to HSE. Any Aggrieved Person Can Appeal. Beveridge & Diamond, PC 6
Site Assignments: A Case Study E.L. Harvey & Sons, Inc. Recycling Facility Proposal. No MSW. Brownfields Redevelopment. Voluntary Enhanced Capping of Old Landfill. No Waste Treatment or Disposal. Beveridge & Diamond, PC 7
Site Assignments: A Case Study Months of BOH Hearings. ~ Broad scope of hearing means witnesses can speak on almost any issue. Enormous Costs. ~ Applicant pays for its lawyers and consultants, BOH lawyers and consultants, hearing officer. Conditions. ~ 57 requirements in ELH site assignment. ~ Limit on hours we can conduct housekeeping, maintenance and truck repair. Beveridge & Diamond, PC 8
Site Assignments: A Case Study ~ Protections for potential spotted turtle habitat: crossing signs, driver training, speed limit. No turtle ever seen; turtle no longer endangered. ~ Conduct seismic assessment before constructing MRRF. ~ Install wells and monitor groundwater different from DEP and local monitoring. ~ Special markers on containers used at other facilities; must be cleaned before bringing them to site. Site Assignment followed by Two Years of Local Permitting on Same Issues Reviewed by BOH. Beveridge & Diamond, PC 9
Site Assignments: Proposal for Change 1. Expand Recycling Operation Exemption in DEP Rule. Change Current Limitations: + Include C&D. + Remove Limitation of Pre-Sorted Material at Point of Generation. + Remove or Lift 100 TPD Maximum + Increase 15% Avg Residuals by wt Maximum. Beveridge & Diamond, PC 10
Site Assignments: Proposal for Change Beveridge & Diamond, PC 11
Site Assignments: Proposal for Change 2. Eliminate DEP/BOH Duplication. Current Process Requires Independent Reviews by DEP and BOH of 42 General Criteria and 9-20 Specific Criteria. + Many Criteria are Simply Fact Based. + Others Require Env l Impact Analysis. + Nothing in Statute Requires Separate BOH Evaluation BOH Must Only Base Decision on Siting Criteria. Beveridge & Diamond, PC 12
Site Assignments: Proposal for Change To Eliminate Duplication, Let BOH and DEP Focus on Their Areas of Expertise: A. For Technical Criteria, Rules Should Call DEP s Decisions Persuasive Evidence on Which BOH May Rely. B. Rules Should Require Advance Notice of Any Challenge to DEP s Decisions. C. Let BOH Focus on Criteria In Its Area of Expertise: Safety, Nuisances, Public Health, Traffic. Beveridge & Diamond, PC 13
Site Assignments: Proposal for Change 3. Simplify and Streamline the Hearing. Hearings Are Poor Vehicles for Conveying Information. They Are: + Confusing to BOH Members. + Often Inaccessible to the Public. + Very Costly to the Applicant. Hearings Should Allow Inquiry Into Key Issues, With Opportunities for BOH Dialogue. Beveridge & Diamond, PC 14
Site Assignments: Proposal for Change Changes To Hearing Rules: A. Require a Narrowing of Issues Before Hearing Commences. B. Require Hearing Officer to Establish Hearing Schedule By Segregating the Criteria to be Evaluated at Hearing. C. Where Requested, Provide BOH Access to DEP Technical Expertise and Testimony. Beveridge & Diamond, PC 15
Site Assignments: Conclusion Current Opportunity to Make Changes. DEP Is Evaluating Site Assignment Process Right Now. Discussion Beveridge & Diamond, PC 16