At the most recent meeting of the Massachusetts Solid Waste Advisory Committee, held virtually on October 1, 2020, staff from the Department of Environmental Protection (“MassDEP”) unveiled potential changes to the agency’s solid waste facility site assignment regulations at 310 CMR 16.00.

The presentation was a preliminary step in the rulemaking process where MassDEP staff informs the solid waste community about regulatory changes under consideration and seeks initial input from interested stakeholders. The next committee meeting (scheduled for November 19) will focus on potential changes to the solid waste facility permitting regulations at 310 CMR 19.00. Thereafter, MassDEP expects to release draft regulations for public comment, then final revised regulations, which are expected by spring and fall 2021, respectively.

We want to highlight some of the proposed changes to the site assignment regulations that MassDEP discussed at the meeting.

New general permit for Organic Materials Consolidation. MassDEP is considering adding a new category to the list of solid waste activities in 310 CMR 16.04 that are eligible for a general permit without needing a site assignment, a solid waste facility permit, or a recycling, composting, or conversion permit (an “RCC permit”). The new category is for small-scale organic materials consolidation operations which function as an intermediate collection point between generators and processors, similar to the way a municipal transfer site works for materials recycling facilities.

Revised general permit requirements for Composting and Anaerobic Digestion facilities. MassDEP is proposing additional setback requirements for these facilities. Currently, the only setback requirement in 310 CMR 16.04(3) is at least 250 feet from any existing water supply well. MassDEP is proposing four new minimum setbacks: (1) 400 feet from any public drinking water well; (2) 250 feet from any private drinking water well; (3) 300 feet from any residence; and (4) 100 feet from any property line. MassDEP also noted that existing sites meeting certain criteria could be grandfathered and that certain materials handled at these facilities may be required to obtain an RCC permit, but the agency did not release the exact details and criteria for these revisions.

Revised Agricultural Lands siting criterion. Current regulations in 310 CMR 16.40(4) prohibit siting any solid waste facility on agricultural land rated as prime, unique, or of state and local importance by the U.S. Department of Agriculture. MassDEP is proposing to revise the criterion so that it better distinguishes between soil types and land uses, including land that is actively or has recently been used for agriculture. This change would make it easier to site facilities in locations where agricultural use is not foreseeable or practical.

New siting criterion for Promotion of Waste Diversion. MassDEP is proposing a new general site suitability criterion in 310 CMR 16.40 that would consider the extent to which a proposed solid waste management facility maximizes materials diversion from disposal, either alone or in combination with other facilities. This criterion would overlap with an existing criterion for Promotion of Integrated Solid Waste Management in 310 CMR 16.40(5).

While laudable, this criterion should be applied to a facility operations permit under 310 CMR 19.00 rather than a site assignment, which considers primarily the suitability of the location of the facility and not detailed operations. Adding this criterion to site assignment evaluation could result in local boards imposing conditions on facilities to meet specific recycling or diversion standards that later become impossible to meet in a volatile and quickly-changing recycling market.

Transferability of permits. MassDEP is proposing to add a regulation specifying the terms upon which RCC and general permits may be transferred to a new facility operator.

Notice requirements for environmental justice communities. MassDEP will modify the regulation governing notice to environmental justice (EJ) communities. Currently, the regulation at 310 CMR 16.10(4) differs from the enhanced public participation thresholds under the Massachusetts Environmental Policy Act for EJ populations that are part of the state’s Environmental Justice Policy, resulting in potential inconsistency between the two public outreach programs. We anticipate that MassDEP will overhaul its EJ notice and participation requirements to match those in the EJ Policy.

These are just a few of the proposed revisions to the site assignment regulations, and a lot could change before MassDEP publishes its draft regulations for public comment. For any questions about how these regulatory changes may affect your facility, contact the attorneys at Mackie Shea Durning, P.C.