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 involving 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 involving 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(7). 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).
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