301 CMR 11.11 - Waivers
(1)
Standards for all Waivers. The Secretary may waive any
provision or requirement in
301 CMR 11.00 not specifically
required by MEPA and may impose appropriate and relevant conditions or restrictions,
provided that the Secretary finds that strict compliance with the provision or
requirement would:
(a) result in an undue hardship
for the Proponent , unless based on delay in compliance by the Proponent ;
and
(b) not serve to avoid or minimize
Damage to the Environment .
(2)
Presumptions to be Rebutted for EIR Waiver. The mandatory
EIR review thresholds identify Projects or aspects thereof that are presumed to have
particularly significant environmental impacts, and for which an EIR is presumed to
benefit the Project and the environment. Consequently, a waiver of an EIR review
threshold shall follow the review of an ENF and shall be based on a rebuttal of
these presumptions.
(3)
Determinations for EIR Waiver. In the case of a waiver of a
mandatory EIR review threshold, the Secretary shall at a minimum base the finding
required in accordance with
301 CMR
11.11(1)(b) on a determination
that:
(a) the Project is likely to cause no Damage
to the Environment ; and
(b) ample and
unconstrained infrastructure facilities and services exist to support the Project
(in the case of a Project undertaken by an Agency or seeking the provision of
Financial Assistance) or those aspects of the Project within subject matter
jurisdiction (in the case of a Project undertaken by a Person and requiring one or
more Permits or involving a Land Transfer but not seeking the provision of Financial
Assistance). The Proponent may provide evidence satisfactory to the Secretary that
the Agency Action on the Project will contain terms such as a condition or
restriction that will cause benefits to environmental resources or quality or
infrastructure facilities or services in excess of those that would result in the
absence of the waiver.
(4)
Determinations for Phase One Waiver. In the case of a
partial waiver of a mandatory EIR review threshold that will allow the Proponent to
proceed with phase one of the Project prior to preparing an EIR, the Secretary shall
base the finding required in accordance with
301 CMR
11.11(1)(b) on a determination
that:
(a) the potential environmental impacts of
phase one, taken alone, are insignificant;
(b) ample and unconstrained infrastructure
facilities and services exist to support phase one;
(c) the Project is severable, such that phase one
does not require the implementation of any other future phase of the Project or
restrict the means by which potential environmental impacts from any other phase of
the Project may be avoided, minimized or mitigated; and (d) the Agency Action on
phase one will contain terms such as a condition or restriction in a Permit,
contract or other relevant document approving or allowing the Agency Action , or
other evidence satisfactory to the Secretary, so as to ensure due compliance with
MEPA and 301 CMR
11.00 prior to Commencement of any other phase of the
Project .
(5)
Request for Waiver. A Proponent shall request a waiver in
writing and shall address with particularity any findings that the Secretary is
required to make in accordance with
301 CMR
11.11(1) through (4). The
Proponent who requests a waiver shall be deemed to consent to an extension of the
review period in accordance with
301 CMR
11.05(8). The Secretary shall
publish notice of this request in the next
Environmental Monitor in
accordance with
301 CMR
11.15(2).
(6)
Secretary's Decision on
Waiver. If the Secretary decides that a waiver request has merit, the
Secretary shall prepare a record of decision that describes the Project , the nature
and extent of MEPA jurisdiction, and the potential environmental impacts from the
Project and mitigation measures, and sets forth the reasons for the waiver,
including any findings required in accordance with
301 CMR
11.11(1) through (4). The
Secretary shall issue a draft record of decision for each waiver or partial waiver
of an EIR review threshold and publish the draft record of decision in the next
Environmental Monitor in accordance with
301 CMR
11.15(2), which begins the public
comment period. The public comment period lasts for 14 Days, unless extended by the
Secretary with the consent of the Proponent . An extension shall not ordinarily
exceed 14 Days. During the public comment period, the Secretary shall receive
written comments into the record from any Agency or Person concerning the draft
record of decision. The Secretary shall issue a final record of decision or a Scope
within seven Days after the close of the public comment period. The Secretary shall
publish notice of each decision on a waiver request in the next
Environmental Monitor in accordance with
301 CMR
11.15(2).
Notes
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