310 CMR, § 4.04 - Permit Application Schedules and Fee

(1) General. Schedules for timely action on permit applications shall be applicable to, and fees pertaining to such applications shall be payable by, all permit applicants for permits identified in 310 CMR 4.10 (Appendix), as set forth in 310 CMR 4.10 (Appendix). Except as otherwise provided in 310 CMR 4.04(2)(b) through (g), 4.04(3)(c) and (d), and 4.05, the applicable schedule for timely action and permit application fee for each permit and category of permit shall be as set forth in 310 CMR 4.10 (Appendix). Such fees shall be payable for each such permit application. Permit applicants with applications pending before the Department as of January 1, 1991 may elect to pay the permit application fee; the schedule for timely action shall be applicable to such permit applications only upon payment of the permit application fee. The category to which each permit application belongs shall be determined based on the proposed activity defined in the permit application. An applicant seeking more than one permit shall pay the fee indicated for each such permit. A permit application or notification shall not be deemed valid, unless payment of the applicable fee is made or an extension is requested pursuant to 310 CMR 4.04(3)(c). If the full permit fee, or a hardship extension request has not been received within 180 days of submittal of the permit application, and the applicant fails to respond to Departmental notification of the pending administrative action to withdraw the permit, the application shall be deemed withdrawn. No refund of any portion of the application fee shall be due.

(2) Operation of Provisions for Schedules for Timely Action. Schedules for timely action set forth in 310 CMR 4.10 (Appendix), or established pursuant to 310 CMR 4.05, shall be applied in accordance with 310 CMR 4.04.

(a) Commencement of Schedule. Computation of time periods that begin when a document is received and a permit application fee has been paid shall begin on the day following the day on which the later of those events occurs.

(b) Operation of Defined Schedule Periods. 310 CMR 4.04 defines the operation of review periods for administrative completeness, technical, supplemental technical, and public comment review periods.

1. Administrative Completeness Review.

a. General. An initial administrative completeness review shall result in a determination of administrative completeness or a statement of administrative deficiencies. The Department may request additional information during the course of such review.

b. Unless the number of days to respond to the Department's statement of administrative deficiencies is specified in 310 CMR 4.10, an M.G.L. c. 21E applicant may, within 15 days, and all other applicants may, within 180 days, respond to the Department's statement of administrative deficiencies by submitting any additional material to support the application. Failure by the applicant to submit such material within the specified time shall be deemed to be a withdrawal of the application; provided, that in such circumstances the applicant shall not be entitled to any refund of the permit application fee, notwithstanding the provisions of 310 CMR 4.04(3)(d).

c. Second Administrative Completeness Review. If the Department has issued a statement of administrative deficiencies, a second administrative completeness review shall be conducted within the same number of days specified for the initial administrative completeness review, beginning with receipt of materials submitted by the applicant in response to the statement of administrative deficiencies. The Department may request additional information during the course of review. A second administrative completeness review shall result in a determination of administrative completeness or a denial of the permit application. A denial of the permit application shall be subject to appeal in the manner specified in applicable statute or regulations, provided that in any adjudicatory hearing the issues shall be limited to the question of whether or not the information submitted was administratively complete. If the applicant prevails in such a proceeding, the Department shall begin the next step of its review pursuant to the schedule for timely action for that permit.

d. Effect of Determination. A determination of administrative completeness shall not constitute any finding with respect to the technical suitability, adequacy or accuracy of the materials provided, and shall be no bar to a request to amend, revise, replace, or supplement such materials based on technical suitability, adequacy or accuracy.

2. Technical Review.

a. A technical review shall result:

i. in a decision to grant or deny the permit; or

ii. where public comment is provided, in a proposed decision to grant or deny the permit; or

iii. where the Department would on the basis of the information in the record either deny the permit or impose conditions significantly modifying or restricting operation of the project or activity as proposed, in a statement identifying deficiencies in the application and supporting materials. The Department's decision to issue a statement identifying deficiencies shall not be deemed to give rise to any right to an adjudicatory hearing.

b. The Department may request additional information during the course of a technical review.

c. If the Department has issued a statement identifying deficiencies, a M.G.L. c. 21E applicant may within 30 days and all other applicants may within 45 days of issuance elect to proceed on the record as it stands at that time, by so notifying the Department in writing. An applicant so electing to proceed on the record may not in any manner amend, revise, replace, or supplement the application or supporting materials. If the applicant so elects, the Department shall issue a decision to grant or deny the permit, or a proposed decision to grant or deny the permit for public comment, within 45 days of receipt of the applicant's notice, subject to any adjustment in the schedule pursuant to 310 CMR 4.04(2)(d)2. or 3.a.

d. A decision to grant or deny a permit following technical review shall be subject to appeal in the manner specified in applicable statute or regulations.

e. A provision for presumptive approval or equivalent term set forth in a program regulation underlying a fee permit category listed in 310 CMR 4.10 shall result in approval of the permit application in the absence of a written deficiency statement or decision within the time frame established for presumptive approval.

3. Supplemental Technical Review.

a. A supplemental technical review shall result in a decision to grant or deny the permit, or, where public comment is provided, in a proposed decision to grant or deny the permit.

b. The Department may request additional information during the course of a supplemental technical review.

c. A decision to grant or deny a permit following supplemental technical review shall be subject to appeal in the manner specified in applicable statute or regulations.

4. Public Comment Review.

a. A public comment review shall result in a decision to grant or deny the permit.

b. The Department may request additional information during the course of such review.

c. A decision to grant or deny a permit following public comment review shall be subject to appeal in the manner specified in applicable statute or regulations.

d. For applications filed pursuant to M.G.L. c. 21E, and 310 CMR 40.0000: Massachusetts Contingency Plan, a public comment period shall, if applicable, occur concurrently with the technical review. A second public comment period shall, if applicable, occur at either the end of the technical review or the supplemental technical review. The applicant shall have an additional 30 days beyond the second public comment period to respond, if significant comments are received.

(c) Additional Information Submitted by Applicants.

1. Submittals During Departmental Review Periods. The Department may request additional information from the applicant during any Departmental review period without extending or reducing the time provided in the schedule for the Department to complete such review. The Department may make such requests either orally or in writing. In making any such written request, the Department shall specify a reasonable time within which the applicant may provide such additional information, considering the time required to produce the information and the time required to review it within the applicable period for the Department to take action. Such specification of time shall not be deemed to give rise to any right to an adjudicatory hearing. The Department shall not be required to consider in any decision or action, including any adjudication, any additional information submitted by the applicant beyond the limit of time so specified by the Department, unless that additional information is timely submitted in response to a statement identifying deficiencies or another written request from the Department pursuant to 310 CMR 4.04(2)(c).

2. Change in Project.

a. Determination of Change. The Department may determine that the applicant has filed a new application whenever additional information provided by the applicant during any Departmental review period, in response to any statement identifying deficiencies in the application or supporting materials, or during any period allowed for public comment, either

i. results in a change in the category in which the permit application is classified, or

ii. significantly increases or changes the nature of the potential effects of the proposed project or activity on public health and safety or the environment. Upon making a determination that the applicant has filed a new application, the Department shall promptly notify the applicant in writing. The notice shall indicate the basis for the determination and summarize the provisions of 310 CMR 4.04(2)(c)2. relative to such determinations. The determination that a project has changed shall not be grounds for a request for adjudicatory hearing; however, an applicant aggrieved by such a determination may seek review of the determination as an issue in any appeal of the permit decision.

b. Effects of Determination on Schedule.

i. Immediately upon issuance of the notification, the schedule for timely action

shall be suspended.

ii. If the determination resulted from a proposed change in design or operation of the proposed project or activity, the applicant may within 45 days withdraw the change and return to its previous proposal by so notifying the Department in writing. If the applicant so notifies the Department, the schedule for timely action shall resume at the point at which it was suspended.

iii. If the determination resulted from any other cause, or if the applicant does not elect to withdraw the change, the Department shall begin a review of the new application pursuant to the relevant schedule for timely action.

c. Effects of Determination on Fee. Unless the applicant elects to proceed with the previous application in accordance with 310 CMR 4.04(2)(c)2.b.ii., the original application shall be deemed withdrawn, and the fee shall be disposed as provided in 310 CMR 4.04(3)(d); provided, that the Department shall credit any amount to be refunded toward the permit application fee payable for the new permit application unless the applicant requests a refund.

(d) Application of Schedule Periods.

1. For the purposes of 310 CMR 4.04(2), an "interim review period" shall mean the period allowed for any administrative completeness review, technical review, or supplemental technical review which may result in an identification of deficiencies or a proposed decision for public comment, or any other period for action by the Department that may not or does not require a final decision to grant or deny the permit. A "final review period" shall mean the period allowed for a technical or public comment review or other period for action by the Department, which must result in a decision to grant or deny the permit. The schedules for timely action established in 310 CMR 4.04 create no right to any remedy except that specifically provided in 310 CMR 4.04 and in M.G.L. c. 21A § 18 or in M.G.L. c. 21E, § 3B.

2. Accelerated Action by Department. Should the Department complete the required action for any interim review period in less time than is allowed pursuant to the applicable schedule, one day shall be added to the number of days allowed for the Department's next action, if any, in the applicable schedule for each day that the Department's action precedes the date by which such action was required.

3. Tardy Action by Department.

a.Should the Department fail to take timely action on a permit application within any interim review period, subject to any adjustment required by 310 CMR 4.04(2)(d)2., one day shall be subtracted from the number of days allowed for the Department's next action in the appropriate schedule for each day that the Department's action is tardy, unless the schedule for taking such action has been extended pursuant to 310 CMR 4.04(2)(e) or (f).

b.Should the Department fail to take timely action on a permit application within any final review period, subject to any adjustment required by 310 CMR 4.04(2)(d)2. and 4.04(2)(d)3.a., the Department shall refund the permit application fee paid by the applicant, unless the schedule for taking such action has been extended pursuant to 310 CMR 4.04(2)(e) or (f). The Department shall continue to process the permit application following a refund. The applicant may agree to accept an extended review schedule in lieu of receiving a refund.

c.Notwithstanding 310 CMR 4.04(2)(d)3.b., the Department shall continue to process a permit application pursuant to M.G.L. c. 21E and 310 CMR 40.0000: Massachusetts Contingency Plan on a high priority basis.

4. Tardy Action by Applicant. Should the applicant fail to respond to the Department's statement of deficiencies within the period provided for doing so, the application may be deemed withdrawn, unless the schedule for doing so has been extended pursuant to 310 CMR 4.04(2)(e)3. or (f). The Department shall issue a final decision to deny or approve in a technical review period.

(e) Extension of Schedule by Other Actions.

1. Failure of Payment. Whenever a check or other form of payment of a permit application fee is returned for insufficient funds, or if payment in full is in any other manner prevented, the schedule for timely action shall be suspended. The Department shall notify the applicant of such suspension in writing. When the Department has verified receipt of payment in full, the Department shall so notify the applicant in writing. The time period for the Department to complete the next relevant action shall be that period specified in the schedule for timely action, subject to any modification in accordance with 310 CMR 4.04(2)(d)2., 4.04(2)(d)3., or (2)(f), beginning on the day after such notice is issued

2. Extension of Periods for Departmental Action.

a.The time periods for the Department to take any action shall be extended whenever the Department determines that action by another federal, state, or municipal governmental agency is required before the Department may act, or that judicial proceedings affect the ability of the Department or the applicant to proceed with the application, or when the Department has commenced enforcement proceedings which could result in revocation of an existing permit for that facility or activity and denial of the application. The applicant shall promptly notify the Department in writing whenever it believes that action by another governmental agency is required, or that judicial proceedings affect the ability of the Department or the applicant to proceed with the application.

b.The Department shall provide written notice of such determination to the permit applicant as promptly as practicable, but in no event later than the date by which the Department or the applicant was next to have completed an action. Such notice shall contain a statement of the reasons for which the schedule must be extended. Such a determination shall not be deemed to give rise to any right to an adjudicatory hearing. The applicant may pursue any available judicial remedy.

c.When the Department determines that the reason for such extension is no longer applicable, the Department shall so notify the applicant in writing. The time period for the Department to complete the next relevant action shall be that period specified in the schedule for timely action, beginning on the day after such notice is issued.

3. Extension of Periods for Action by Applicant.

a.The time periods for the applicant to take any action shall be extended whenever the Department determines that judicial proceedings affect the ability of the Department or the applicant to proceed with the application. The applicant shall promptly notify the Department in writing whenever it believes that judicial proceedings affect the ability of the Department or the applicant to proceed with the application.

b.The Department shall provide written notice of such determination to the permit applicant as promptly as practicable, but in no event later than the date by which the Department or the applicant was next to have completed an action. Such notice shall contain a statement of the reasons for which the schedule must be extended. No determination by the Department concerning the applicant's ability to proceed with the application shall be deemed to give rise to any right to an adjudicatory hearing. The applicant may pursue any available judicial remedy.

c.When the Department determines that the reason for such extension is no longer applicable, the Department shall so notify the applicant in writing. The time period for the applicant to complete the next relevant action shall be that period specified in the schedule for timely action, subject to any modification in accordance with 310 CMR 4.04(2)(f), beginning on the day after such notice is given.

d.In no event shall the period allowed for action by the applicant exceed two years, except in accordance with an agreement executed pursuant to 310 CMR 4.04(2)(f), or a schedule established pursuant to 310 CMR 4.05.

(f) Extension of Schedule by Agreement. The applicant and the Department may, by written agreement, extend any schedule for timely action or any individual portion thereof.

(g) Schedules for Projects Requiring more than One Permit. In order to ensure efficient and coordinated review of all relevant issues, whenever more than one type of permit from the Department is required for any project, the Department may, upon written notice to the applicant adjust the schedules for timely action for all such permits to coincide with that schedule providing for the latest review period at each step of the review process. The Department shall consult with the applicant prior to issuing any such notice.

(3) Provisions for Payment of Permit Application Fee.

(a) The Commissioner may specify through the establishment of payment invoices, permit application forms, or other standardized instructions the form and manner of payment of all permit application fees. Payment in other forms or manners shall not be deemed payment for purposes of any schedule for timely action, unless and until the Department verifies payment and so notifies the applicant in writing.

(b) The Department may require that persons applying for permits as a result of enforcement action by the Department or another agency of the Commonwealth or its subdivisions shall pay double the otherwise applicable fee.

(c) Hardship Requests: extension of time for making payment.

1.In instances of severe financial hardship, the Commissioner may, at his or her discretion, grant a timely request to extend the time for making payment. The permittee shall bear the burden of persuasion that the request should be granted.

2.An applicant seeking an extension of time for making payment shall file a written request for extension with the permit application. The request shall be filed in the form and manner specified by the Commissioner, and shall include the following:

a.the applicant's name and address;

b.the amount of the fee due;

c.the circumstances the applicant believes constitute severe financial hardship;

d.a proposed schedule for making payment; and

e.the reasons the applicant believes the proposed schedule is appropriate.

3.Within 30 days of receipt of a request for extension, the Commissioner shall notify the applicant making the request of the Department's decision on the request. Notice shall be given to the permittee by any method described in 310 CMR 4.03(3)(a). The Commissioner may request any supplemental information from the applicant to aid in such decision. No schedule for timely action shall begin until the Department makes a decision on the request for extension. The Commissioner's decision on such a request shall not be deemed to give rise to any right to an adjudicatory hearing.

4. If the request is granted, the decision shall set forth a schedule for making payment. The Department may adopt or modify the schedule proposed by the applicant, or may develop its own schedule as appropriate. Failure by the applicant to make payments when due pursuant to the schedule established by the Department shall suspend the schedule for timely action until payment is made.

5. If the request is denied, the schedule for timely action shall begin in accordance with 310 CMR 4.04(2)(a).

(d) Withdrawal of Application.

1. If the applicant withdraws the permit application before the period for technical review has begun, the Department shall retain 50% of the permit application fee and shall refund the balance to the applicant.

2. If the applicant withdraws the permit application during or after the period for technical review, the Department shall retain the entire permit application fee.

(e) Refund and Credit.

1. For permit categories allowing fees calculated by the applicant, a Department determination during the administrative completeness review that an incorrect fee amount was paid, shall result in a refund or additional amount due, as applicable. A determination of an incorrect fee calculation during the technical review period shall result in a 50% refund if overpayment was made or the requirement for the additional fee amount if underpaid.

2. A Department determination during the administrative completeness review that no permit is required of the applicant shall result in a refund of 100% of the application fee paid. The determination made during the technical review period shall result in a 50% refund.

3. A Department determination during administrative completeness review that an application is for an incorrect permit category shall result in:

a. a credit of 100% of the paid fee toward the correct permit category fee and a refund of the balance, if any; or

b. a refund of 50% of the balance where information in addition to the original application was required for the determination; or

c. requirement for additional payment of the balance for the correct category's higher fee.

4. A Department determination of incorrect application category during technical review shall result a 100% credit of the paid fee amount toward the correct permit category fee, a 50% refund of the balance, if any, or requirement for payment for a higher fee.

Notes

310 CMR, § 4.04

Amended by Mass Register Issue 1263, eff. 6/20/2014. Amended by Mass Register Issue 1335, eff. 3/24/2017. Amended by Mass Register Issue 1416, eff. 5/1/2020.