310 CMR 4.05 - Alternative Project-specific Schedules and Fees

(1) Applicability. The provisions of 310 CMR 4.05 shall apply:

(a) to permit applications and projects within categories designated in 310 CMR 4.10 (Appendix) as individual rule projects; or

(b) to permit applications and projects, except those pursuant to M.G.L. c. 21E, and 310 CMR 40.0000: Massachusetts Contingency Plan and except Notices of Intent pursuant to M.G.L. c. 131, § 40, and 310 CMR 4.10(8)(n), for which the Department finds that due to the size, novelty, complexity, or technical difficulty of the project

1. the amount of work required by the Department in processing the permit application will exceed by a factor of two or more the amount of work assumed as the basis in establishing the permit application fee for such permits set forth in 310 CMR 4.10 (Appendix), and

2. the work required of the Department can not be completed within the schedule for timely action set forth for such permits in 310 CMR 4.10 (Appendix). The Department shall provide written notice of such finding to the applicant within 30 days of receiving the permit application and payment of the application fee. The notice shall contain a statement of the basis for the Department's determination and a summary of the provisions of 310 CMR 4.05.

(2) Establishment of Alternative Schedule for Timely Action and Permit Application Fee.

(a) The Department shall negotiate with the applicant concerning the establishment of the schedule for timely action and permit application fee.

If agreed to by the Department, the applicant may pay the published permit application fee and the Department may begin review of the application under the published timely action schedule until the proposed alternative fee amount and timely action schedule have been submitted to the applicant by the Department. The final decision shall not be issued to the applicant until the alternative fee has been paid in full. Permit categories identified as Individual Rule Projects require a signed agreement and fee payment before the Department may begin review of the application.

(b) Within 45 days of receipt of the permit application for an individual rule project, or within 45 days of making the determination set forth in 310 CMR 4.05(1)(b), or within such other period as the Department and the applicant agree in writing, the Department shall establish both an alternative schedule for timely action and a permit application fee, based on the costs and time of the extraordinary work required to process such permit application. The Department may establish the alternative permit application fee in the form of actual costs billed at the average rates set forth in 310 CMR 4.05, subject to a stated maximum billing amount.

(c) In establishing any permit application fee under 310 CMR 4.05, the Department and the applicant shall use as a basis the following average daily and hourly costs:

1. Loaded Daily Rate. The Loaded Daily Rate per 7.5 hour day shall be based upon the average fully loaded rate for a Full Time Equivalent Department employee as calculated in the current Fiscal Year in effect at the time of the permit application.

The applicable daily overtime charge rate may be used following a positive Department determination for a public interest expedited review and agreement by the applicant. Effective May 1, 2020

2. Loaded Hourly Rate. The Loaded Hourly Rate shall be based upon the average hourly fully loaded rate for a Full Time Equivalent Department employee as calculated in the current Fiscal Year in effect at the time of the permit application.

The applicable hourly overtime charge rate may be used following a positive Department determination for a public interest expedited review and agreement by the applicant. For purposes of 310 CMR 4.05, "technical staff" shall be deemed to include staff in all professional categories, including without limitation engineers, environmental analysts, chemists, biologists, geologist, hydrogeologists, attorneys, and planners. Effective May 1, 2020

(d) Limits on Alternative Schedule and Fee. In no case shall the fee established pursuant to 310 CMR 4.05 be lower than fees established in 310 CMR 4.10 (Appendix) for that class of permit, if any, nor shall the schedule for timely action require action more rapid than the time for comparable action allowed in the schedule established in 310 CMR 4.10 (Appendix), for that class of permit, if any.

(3) Review of Alternative Schedule for Timely Action or Permit Application Fee.

(a) General. An applicant aggrieved by the Department's action in establishing a schedule for timely action or a permit application fee pursuant to 310 CMR 4.05 may within ten days of receipt of the alternative schedule for timely action and permit application fee established by the Department notify the Department that it seeks review. Failure to so notify the Department within ten days shall be deemed a waiver of the right to review. The applicant may seek review pursuant to either or both of 310 CMR 4.05(3)(c) and (d).

(b) Filing of Notice. An applicant seeking review under 310 CMR 4.05 shall file a written notice in the form and manner specified by the Commissioner. The notice shall include the following:

1. the applicant's name and address;

2. the fee amount and schedule established by the Department;

3. a statement indicating whether the applicant elects to proceed on a true cost basis pursuant to 310 CMR 4.05(3)(c), to request an adjudicatory hearing pursuant to 310 CMR 4.05(3)(d), or to do both; and

4. materials satisfying the additional filing requirements of 310 CMR 4.05(3)(c) or (d), as applicable.

(c) True Cost Procedure.

1. General. An aggrieved applicant may elect to proceed with the application on a true cost basis. The Department shall diligently and in good faith process the permit application, taking all reasonable measures to achieve compliance with the alternative schedule for timely action established pursuant to 310 CMR 4.05(2); provided, that the provisions of 310 CMR 4.04(2)(d)3.b. shall not apply.

2. Additional Filing Requirement. The applicant shall include with the notice required by 310 CMR 4.05(3)(b) a payment of at least ½ of the alternative permit application fee established pursuant to 310 CMR 4.05(2) as a deposit.

3. The Department shall provide a monthly cost statement to the applicant based on the average rates specified in 310 CMR 4.05(2)(c) and the days or hours of work performed by technical staff. Whenever the Department's costs as reflected in the cost statement exceed the balance already paid by the applicant, the applicant shall within 30 days pay all outstanding amounts. Failure by applicant to make such payments shall be grounds for the Department to discontinue work on the application.

4.The Department shall withhold its final decision on the permit application until the applicant has made full payment.

5.Nothing in 310 CMR 4.05 shall prevent the Department from denying a permit request where it finds the application and supporting materials inadequate.

(d) Adjudicatory Hearing Procedure.

1. General. An aggrieved applicant may elect to request an adjudicatory hearing, pursuant to M.G.L. c. 30A. 310 CMR 1.00: Adjudicatory Proceedings shall govern such proceedings.

2. Additional Filing Requirement. The applicant shall include with the notice required by 310 CMR 4.05(3)(b) the adjudicatory hearing fee required by 310 CMR 4.06 and a clear and concise statement of

a.the facts which are grounds for the proceeding; and

b.the relief sought, including an identification of all desired changes in the alternative schedule for timely action and permit application fee set by the Department.

3.Except as provided by 310 CMR 4.05(3)(c) when the applicant has elected both to proceed on a true cost basis and to request an adjudicatory hearing, no permit application fee shall be due and no schedule for timely action shall be in effect, pending resolution of the request for adjudicatory hearing.

4. Standards. In any hearing pursuant to 310 CMR 4.05(3)(d), the average rates established in 310 CMR 4.05(2)(c) shall be used as the basis of the fee determination, and the alternative schedule for timely action and permit application fee established by the Department shall be revised only where the applicant demonstrates by a preponderance of the evidence that the Department's position was unreasonable, arbitrary, or capricious.

(4) Alternative Annual Compliance Assurance Fee.

(a) The Department shall establish an annual compliance assurance fee as a condition of a permit issued for a project subject to 310 CMR 4.05(4), based on the costs of the Department reasonably necessary to ensure compliance with the permit. The provisions of 310 CMR 4.05(2)(d) shall apply to such fees. In the absence of a specific single project annual assurance compliance fee set by the Department with or before the issuance of the final project permit decision, annual fees then existing or later promulgated in 310 CMR 4.03(2): Table shall apply as applicable to permits held by the applicant.

(b) An applicant aggrieved by the establishment of such fee may seek review of the fee in accordance with applicable procedures for appealing other permit terms or conditions established by the permit decision, provided that;

1. in any hearing concerning such fee, the average daily and hourly rates set forth in 310 CMR 4.05(2)(c) shall be used as the basis of the fee; and

2. in any such hearing, the fee established by the Department shall be revised only where the applicant demonstrates by a preponderance of the evidence that the Department's position was unreasonable, arbitrary, or capricious.

(c) Future request for adjustment of fee. The permittee may request the Department to adjust an annual compliance assurance fee established pursuant to 310 CMR 4.05(4) by regulation or established pursuant to 310 CMR 4.05(4) by:

1. filing an application to modify or amend the permit in which the fee is established; or

2. requesting revision in the fee during any review of 310 CMR 4.00 and revision of fees established herein.

(5) Special Project. Permits for projects determined by the commissioner to have significant environmental interest, or consistency with sustainable development principles, or projects which meet the criteria in M.G.L. c. 21A, § 18(d) clauses (1) and (2) but do not otherwise conform with the requirements of M.G.L. c. 21A, § 18(d) clauses (1) through (4), effective October 7, 2005.

Notes

310 CMR 4.05

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