301 CMR 11.10 - Project Changes and Lapses of Time

(1) Notice of Project Change for Project Change. Unless the Secretary has indicated otherwise in the certificate on a review document or as part of a Special Review Procedure, the Proponent shall, and any other Agency or Person may, file a Notice of Project Change with the Secretary if there is any material change in a Project prior to the taking of all Agency Actions for the Project. The selection by the Proponent or the imposition as a condition or restriction in a Permit or other relevant review document allowing or approving an Agency Action of any alternative that similarly avoids, minimizes, or mitigates potential environmental impacts shall not constitute a change in the Project, provided that the alternative was previously reviewed in an EIR. The continuation of the Project by a new Proponent shall not by itself constitute a change in the Project, provided that the new Proponent adopts all mitigation measures to which the previous Proponent committed. The Notice of Project Change shall specify in detail any change in the information provided in any previous review document.

(2) Notice of Project Change for Lapse of Time. Unless the Secretary has indicated otherwise in the Scope or as part of a Special Review Procedure, the Proponent shall, and any other Agency or Person may, file a Notice of Project Change with the Secretary if more than three years have elapsed between the publication of the ENF and the publication of the notice of the availability of the single or final EIR or between:

(a) the publication of the notice of the availability of the single or final EIR; and

(b) the earlier of:

1. notification of Commencement of Construction in accordance with 301 CMR 11.08(9), provided that the Proponent has not thereafter suspended or abandoned construction for more than three years; and

2. commencement of non-construction related work or activity, including expenditure of funds for final design, property acquisition, or marketing, provided that the Proponent has continued to take major steps in a continuous sequence to advance the Project.

(3) New ENF for Lapse of Time. Unless the Secretary has indicated otherwise in the Scope or as part of a Special Review Procedure, the Secretary shall deem MEPA review of a Project closed if more than five years have elapsed between:

(a) the publication of the notice of the availability of the single or final EIR; and

(b) the earlier of:

1. notification of Commencement of Construction in accordance with 301 CMR 11.08(9), provided that the Proponent has not thereafter suspended or abandoned construction for more than three years; and

2. commencement of non-construction related work or activity, including expenditure of funds for final design, property acquisition, or marketing, provided that the Proponent has continued to take major steps in a continuous sequence to advance the Project.

The Proponent shall file a new ENF to open a new MEPA review, provided that the new Project meets or exceeds one or more review thresholds. In the certificate on the new ENF, the Secretary shall ordinarily make specific findings regarding segmentation.

(4) Lapses of Time and Appeals. The period required to prosecute or defend any judicial or administrative appeal relating to MEPA review, any Agency Action or any Federal, municipal or regional governmental permit, license or approval for the Project shall not be counted in determining the three and five year time periods in accordance with 301 CMR 11.10(2) and (3).

(5) Notice of Project Change Upon Secretary's Determination. If the Secretary determines that a Proponent has, either knowingly or inadvertently, concealed a material fact or submitted false information during MEPA review, or has segmented the Project, the Secretary may consider the determination to be a Notice of Project Change.

(6) Secretary's Consideration of Environmental Consequences. In determining whether a change in a Project or the lapse of time might significantly increase environmental consequences, the Secretary shall consider the following factors:

(a) Expansion of the Project. A change in a Project is ordinarily insignificant if it results solely in an increase in square footage, linear footage, height, depth or other relevant measures of the physical dimensions of the Project of less than 10% over estimates previously reviewed, provided the increase does not meet or exceed any review thresholds.

(b) Generation of further impacts, including an increase in release or emission of pollutants or contaminants during or after completion of the Project. A change in a Project is ordinarily insignificant if it results solely in an increase in impacts of less than 25% of the level specified in any review threshold, provided that cumulative impacts of the Project do not meet or exceed any review thresholds that were not previously met or exceeded.

(c) Change in expected date for Commencement of the Project, Commencement of Construction, completion date for the Project, or schedule of work on the Project.

(d) Change of the Project site.

(e) New application for a Permit or New request for Financial Assistance or a Land Transfer.

(f) For a Project with net benefits to environmental quality and resources or public health, any change that prevents or materially delays realization of such benefits.

(g) For a Project involving a lapse of time, changes in the ambient environment or information concerning the ambient environment.

The Proponent may include in a Notice of Project Change an explanation of why the Secretary should deem the change in the Project or the lapse of time to be insignificant in terms of its environmental consequences, with specific reference to these factors and other relevant information. Within ten Days of receiving a Notice of Project Change that includes such an explanation, the Secretary shall respond either with a request for further information or with a determination whether the change in the Project or the lapse of time may have significant environmental consequences. The Secretary's failure so to respond shall have the effect of a determination that the change in the Project or lapse of time does not have significant environmental consequences and shall not require publication and a comment period in accordance with 301 CMR 11.10(8), provided that the Notice of Project Change has been circulated in accordance with 301 CMR 11.10(7).

(7) Circulation of Notice of Project Change. In the case of a Notice of Project Change filed by the Proponent, the Proponent shall circulate copies of the Notice of Project Change to any Agency or Person who received the ENF or commented on the ENF, any EIR, or any prior Notice of Project Change prior to or when filing the Notice of Project Change with the Secretary. In the case of a Notice of Project Change filed by an Agency or Person other than the Proponent, the Agency or Person filing the Notice of Project Change shall send a copy to the Proponent prior to or when filing the Notice of Project Change with the Secretary.

(8) Public Comment and Decision on Notice of Project Change. If the Secretary determines that a change in a Project or a lapse of time may have significant environmental consequences, the Secretary shall: consult as appropriate with the Proponent and any Agency or Person who received the ENF or commented on the ENF, any EIR or any other prior review document; publish notice of the Notice of Project Change in the next issue of the Environmental Monitor; receive into the record written comments from any Agency or Person concerning the need for and the nature of any further MEPA review, within 20 Days following the publication of the notice of the Notice of Project Change; and determine within ten Days after the close of the public comment period whether the change or the lapse of time significantly increases the environmental consequences of the Project such that it warrants further MEPA review by submission of a new ENF or a supplemental EIR, or changes, additions, or deletions to the Scope.

(9) Notice of Decision on Notice of Project Change. The Secretary shall publish notice of any decision on whether to require further MEPA review as a result of a Notice of Project Change in the next Environmental Monitor in accordance with 301 CMR 11.15(2).

(10) Effects of Further Review. Any further MEPA review as a result of a Notice of Project Change shall be subject to the legal challenge periods in accordance with 301 CMR 11.14. The Secretary's decision to require further MEPA review as a result of a Notice of Project Change shall not in itself invalidate any Agency Action previously taken by an Agency or any conditions thereof.

Notes

301 CMR 11.10