RESPONSE TO COMMENTS SUMMARY REVISIONS TO THE SITE ASSIGNMENT REGULATIONS 310 CMR 16.00

COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ON E WINTE R ST RE ET , BOST ON, M A 021 08 617 -2 92- 55 00 JANE SWIFT Governor BOB DURAND Secretary LAUREN A LISS Commissioner RESPONSE TO COMMENTS SUMMARY REVISIONS TO THE SITE ASSIGNMENT REGULATIONS 310 CMR 16.00 June, 2001 INTRODUCTION DEP held six public hearings on proposed revisions to the Site Assignment Regulations, 310 CMR 16.00, and the waste ban section of the Solid Waste Management Facility Regulations, 310 CMR 19.000, in April and May, 1999 Public notices of the hearings were provided in four newspapers of general circulation as well as in the Environmental Monitor, the Massachusetts Register, and on the DEP web site The proposed revisions were sent to a large number of interested parties, including the Solid Waste Advisory Committee, facility operators, the Massachusetts Municipal Association and several environmental groups The comment period on the proposed regulations remained open for written comment through May 14, 1999 In addition, DEP accepted several written comments received after that date for consideration Approximately 130 people attended the public hearings, of which 48 testified Approximately 37 sets of written comments were received A list of those submitting written comments is included on Page Modifications to the waste ban section of the Solid Waste Management Facility Regulations, 310 CMR 19.017, that were proposed were promulgated by DEP in October, 1999, with an effective date of April 1, 2000 for the ban on Cathode Ray Tubes (CRTs) and for application of the waste bans at transfer stations Therefore, comments submitted to the Department regarding the waste bans will not be addressed in this document Guidance for implementation of the waste bans is available on DEP’s web site at http://www.state.ma.us/dep/bwp/dswm/dswmpubs.htm#ban Due to the number of comments received, this document does not include every comment made, but rather summarizes the major areas of comment and provides DEP's response to those comments For some comments only one response is given that addresses several individual comments Comments have been paraphrased and in many cases several people made similar comments, so each specific comment has not been included Comments on some issues, such as the moratorium on permitting of solid waste facilities, are not addressed in this document since they have been more appropriately addressed in the Beyond 2000 Solid Waste Master Plan This information is available in alternate format by calling our ADA Coordinator at (617) 574-6872 DEP on the World Wide Web: http://www.state.ma.us/dep Printed on Recycled Paper List of People or Organizations that Commented on the Proposed Regulations ABC Disposal ACE Bedford - Clean Water Action Berkshire Regional Planning Comm BFI Boston Water & Sewer Commission Boston, City of, Office of Environmental Health Bowdoin Street Health Center Gary Braverman Senator Stephen Brewer Edward Bryan Boston University, School of Public Health BSHC Chelsea DPW Tom Hines, Dorchester Citizens Against Trash Transfer City of Worcester Clam Point Neighborhood Assn Clean Water Action William R Coffin & Sons, Inc Cohasset Heights, Ltd Cushing, Goins & Kirschner Inc Dudley Community Dudley Street Neighborhood Initiative Massachusetts Environmental Collaborative Environmental League of MA EPA New England Fasanella, Johnson & Wood, P.C Frade's Disposal, Inc GW Provision Hardwick Landfill Inc Town of Hardwick E.l Harvey & Sons Haverhill & Haverhill Environmental League Hawthorne Youth & Community Ctr Health Care for All Jet-A-Way Keegan, Werlin & Pabian, LLP Lawrence Environmental Action Group Lower Highland Neighborhood, Lowell MASSPIRG MEPA METOCP NSWMA Dr Barry Levy People for the Environment Roxbury Environment Program Roxbury/N Dorchester-Dudley Street Neighborhood Association Sacred Heart Neighborhood Improvement Group SEMASS Partnership Tellus Institute Tighe & Bond Total Recycling Toxics Action Center The Trustees of Reservations Warner & Stackpole Waste Management Waste Solutions, Inc Wayne Turner Wheelabrator Millbury Yarmouth-Barnstable Transfer Station DEFINITIONS Abutter Comment: Expand "abutter" to include not only abutting property owners but those within a certain distance from the solid waste facility or who are "abutters to the abutters" since impacts go beyond direct abutters to impact a wider area Suggest including those within the maximum setbacks (1000 ft for LF, 500 ft for other) Include railroad and utility rights of way One suggestion was to revise the definition to read the same as the definition of "party at interest" in the Zoning Act, MGL C.40A Response: The point of the comment is to provide better notice to citizens of pending actions during site assignments To that end, rather than expand the definition of abutter, which is consistent with other Department regulations, the final regulation has expanded the list of parties who are to receive notice of a public hearing under the siting process Abutters receive direct notice of a site assignment application from the applicant once the application has been determined to be complete Other parties that receive notice now include the local Board of Selectmen, Board of Health and library, and “abutting Boards of Health” and library (where the adjacent municipality is less than ½ mile from the site), the Department of Public Health, the regional planning agency, and most importantly, any person who requests a copy of the application during the initial comment period Furthermore, notice must also be placed in the MEPA Monitor and in a local newspaper DEP interprets that a "way" includes railroad rights of way and utility corridors Comment: Should be expanded to include the occupants – not just owners – of the ten residential dwellings closest to a proposed site – even if the dwelling properties share no common boundary with the proposed site Response: DEP did not make the suggested modification because it believes the proposed definition of “abutter” is sufficient ABC Rubble Comment: ABC Rubble definition not helpful Modify the definition to allow de minimis amounts of paint, for example asphalt with paint from lane lines Neither the Discussion Document nor the Draft Modifications provide any basis to indicate that revisions are necessary to meet the stated objectives Insertion of the words “clean” and “contaminated” introduce subjective standards and are inappropriately broad DEP should encourage the recycling of such materials and should not further complicate the current regulatory system that allows such materials to be recycled and reused productively Response: The Department has maintained the words “clean” and “contaminated” in the regulation and clarified that ABC rubble is to consist only of clean asphalt, brick and concrete and that the asphalt must be pavement material (as opposed to roofing asphalt, asphalt shingles or other asphaltic materials) The Department needs to ensure that this material, once processed to small enough size for use, will not result in contamination if it is used as a general fill material The Department is concerned about the contaminants that may be present in asphalt and the potential for releases to the environment of hazardous materials DEP is considering the need to further regulate the use of asphalt materials as general fill material through the solid waste management facility regulations, 310 CMR 19.000 If material has been painted or coated with materials a proponent may still possibly reuse the material as a fill material by submitting an application for a Beneficial Use Determination for that material since it does not meet the exemption requirements Furthermore, facilities managing such material are not exempt operations under this provision of the regulations and risk losing their exempt status if they manage such materials DEP has chosen to exempt ABC crushing operations that manage clean materials because it felt that they presented minimal risks from a solid waste perspective, presuming they handle ONLY clean materials Comment: The definition excludes “coated surfaces.” Is it the intent to exclude all painted materials from this category of waste? If so, we oppose this revised definition and suggest DEP accept the reality that much ABC waste has been painted or lightly coated with lacquer or other surface preservative substances Response: As noted in the previous response, DEP is concerned about contaminants that may be present in ABC materials when used as a general fill material because the regulations exempt this material under certain circumstances DEP has therefore required that the materials consist only of clean asphalt, brick and concrete Materials that are painted or coated can still be used beneficially if a proponent receives a Beneficial Use Determination (BUD) from DEP Facility Comment: Remove the sentence "For purposes of site assignment setback criteria, facility does not include the applicable portions of access roads that provide entrances to and exit from the site." Entrance and exit roads must be included in the site assignment setback criteria because facilities fail to ensure that trucks not idle for more than minutes; fail to realign queuing areas during busy times; fail to educate drivers that debris must be covered; and would not hesitate to use this proposed exclusion as a loophole to excuse themselves from assuming responsibility for subsequent traffic mitigation Response: The current site assignment regulations not include this sentence It was proposed to be added to the regulations because the compliance point for measuring setbacks was proposed to be changed from the waste handling or disposal area to the facility boundary As is noted elsewhere in this document, the Department has decided to retain the existing compliance point for measuring setbacks, the waste handling or disposal area Therefore, this sentence has been deleted Generally, site assigned areas include a significant portion of access roads to a site, including weigh stations, truck turnaround areas and so on, but not an entire access road Traffic related issues, such as queuing of trucks, are common to any industrial activity and are best addressed by Boards of Health and planning boards in their review of a project on the local level, whether or not the access road is included in the site assigned area Furthermore, Boards of Health may place reasonable conditions on the operation of a solid waste facility to ensure “that the facility or expansion thereof will not present a threat to the public health, safety or the environment.” (M.G.L C.111, s.150A) Traffic related issues can be dealt with by the Board of Health through such conditions Comment: Request the deletion of the phrase "all land" because the inclusion of "all land" can lead to unequal administration of the regulations Could have the effect of penalizing facilities that purchased and site assigned a large piece of land to establish a buffer area with the intent of limiting the solid waste activities to a small portion of the site Response: The words "all land" will remain in the regulation The definition clearly establishes that a facility includes all those areas where solid waste will be handled, stored, transferred, treated or processed and is to include all those areas of land on which these activities occur and are directly related to solid waste activities A buffer zone area would not be included in this definition of "facility" because it is not directly related to a solid waste activity The draft regulations had proposed to measure setbacks from the “facility,” but the final regulations will measure setbacks as they are currently measured in the regulations, from the waste handling or disposal area, depending on the type of facility This section was added to the definition because the draft regulations proposed to change the measurement point for setbacks from the waste handling or disposal area to the “facility.” Because that proposal is not being adopted, there is no need for this language Comment: Generally support this definition and the setbacks therefrom However, the phrase “directly related to solid waste activities” might be construed too narrowly without further guidance Storage of empty waste containers has been a problem The Department should add “ – including areas used for waste vehicle parking and storage of waste containers.” Response: The definition was not modified any further because parking areas, container storage areas and other developed areas of a site are considered part of the facility as “structures and improvements which are directly related to solid waste activities.” The permit for a solid waste management facility should adequately address those areas of a site where containers are parked New Site Comment: Add language to restrict the definition to include only sites that were legally assigned pursuant to the solid waste statute Response: The regulations were not modified as suggested There are two types of sites which require site assignments The first is a site where there has never been a solid waste facility, while the second is the expansion of an existing solid waste facility onto new land adjacent to the existing facility, or in some cases vertically where the previous assignment contained either a height or volume limit The use of the term “New Site” is to make it clear that such a site must apply for a site assignment and to distinguish it from a site seeking an expansion Potentially Productive Aquifer Comment: Support this revision to the regulations to provide greater protection to these areas even if municipality has not done so Response: The Department recognizes that some aquifers of the state, while they may not be in use for a municipal water supply at this time, are capable of providing both the quantity and quality of water necessary for a municipal supply at some point in the future and should be protected Site Assignment Comment: Do not grandfather existing transfer stations There is no specific statutory language addressing the grandfathering of transfer stations, unlike for landfills, when the statute established the site assignment process in 1955 We believe that “grandfathering” exceeds the intent of the 1970 authorizing act Grandfathering as a legal concept was established to protect property rights in matters of zoning law and its use should be confined to such It has no place in matters of public health Comment: In effect, the proposed grandfathering provision would bestow valid site assignment upon a transfer station that meets the articulated requirements, even if the facility never obtained an original site assignment from the local board of health The proposed provision must fail because it exceeds DEP’s authority to regulate transfer stations pursuant to c.111, s.150A In addition, the proposed provision is dangerous from a public policy perspective, as it would effectively undermine the ability of affected communities to defend themselves against the siting of transfer stations that may threaten public health and the environment The only statutory reference to the grandfathering of solid waste facilities is “dumping ground[s] for garbage, rubbish or other refuse” and “refuse disposal incinerators.” The legislature did not add a grandfathering provision when it amended the statute to add “refuse transfer station” to the types of facilities regulated by the statute Response: The proposed addition to the definition that would have grandfathered certain existing transfer stations has been deleted There was a significant amount of comment in opposition to the provision and no positive comment was received This issue was not specifically addressed by the solid waste statute, M.G.L C.111, s.150A, which grandfathered solid waste landfills in existence prior to the 1955 enactment of the statute The Department is therefore convinced by these comments that grandfathering of transfer stations is inappropriate Comment: Add the words "in accordance with MGL c.111, s 150A" to the definition of “Site Assignment” to clarify that this determination should be made only according to the applicable law Response: This language already exists in the definition of "Site Assignment." Speculative Accumulation Comment: The Department should not regulate either raw materials in a recycling process or the end product We suggest that it is inappropriate for DEP to either determine whether “markets exist” for recyclable materials and further to require materials that clearly are recyclable to be considered solid waste due only to the passage of time In fact, the speculative accumulation provisions as currently drafted are particularly problematic under the wood chipping and shredding operations regulated pursuant to 310 CMR 16.05(5)(e), wherein a 90 day limitation applies to clean wood chips Land clearing operations occur throughout the year, however, markets for reuse of clean wood chips may be primarily seasonal Accordingly, we suggest that the regulations be revised to eliminate the 90 day restriction altogether Response: DEP disagrees with this suggestion Speculative accumulation is an important factor in determining whether an operation is a “sham recycling” operation that takes in waste materials, charging a tipping fee, and then simply stockpiles the waste materials with no market available DEP’s intent is that a facility manage and process only materials that are recyclable, ie being used, versus storing a waste material that has simply been disposed by placing in a pile either before processing or after with no intent to recycle the material Recyclable materials that are used in an exempt manufacturing process, such as recyclable paper in a paper mill or recyclable plastic in a plastics manufacturing plant, are not generally subject to this provision 16.05(3) Conditionally Exempt Recycling Operations Comment: Exempt facilities have created problems in Boston and the Board of Health (BOH) has had to enact regulations to restore local control of such activities Exemptions from site assignment need to be carefully considered because they exempt facilities from BOH decision making BOHs have only an advisory role in MA DEP permitting or granting of exemptions Response: Most of the exemptions established in the Site Assignment Regulations exempt manufacturing facilities, recycling operations and other types of operations that DEP has historically not regulated under solid waste regulations and which have not required site assignments under the solid waste statute The purpose for including these exemptions is to make it clear that although many of these operations handle recyclable materials, they are not considered solid waste facilities The exemptions in 16.05(3) are conditioned upon the incorporation of good management practices and prevention of unpermitted discharges of pollutants or causing a nuisance The presumption is that if these conditions are not met then DEP considers these operations to be solid waste facilities requiring site assignment and a public hearing by the Board of Health Furthermore, when such operations not meet the conditions, both DEP and Boards of Health have adequate authority to take action to require the abatement of such problems 16.05(7)(c): Information on Site Comment: Drainage patterns, approximate slopes anticipated after construction and groundwater or stormwater control or treatment structures to be used during and after construction should be included in 16.05(7)(c), “Information on the Site.” Response: The suggested change was not adopted 16.05(7)(c)3.b adequately addresses this issue SITE ASSIGNMENT APPLICATION AND PUBLIC HEARING PROCESSES 16.08: Site Assignment Application Submission Requirements Comment: Citizens cannot meaningfully comment on proposed sites without an opportunity to review the application Simply making it available at public agencies has proven inadequate for several reasons Citizens need to receive copies of applications in advance in order to evaluate the proposed site, gather evidence, and prepare testimony Strongly recommend DEP add the following provision “(f) Upon request, the applicant shall also provide a copy of the application to any resident of the municipality in which the proposed site is located.” Response: The regulations will be amended to adopt language similar to that contained in the MEPA regulations where the facility proponent must send a copy of the application to those persons requesting a copy However, given that Site Assignment applications can be large, complex documents which may include numerous maps and drawings which are difficult to copy, the regulations will include the provision included in the MEPA regulations that the proponent may charge the cost of reproduction for these copies 16.10(4): Public Notice of Application Comment: Add a paragraph (d) requiring an applicant that has been subject to MEPA to file a notice in the Environmental Monitor that a completed site assignment application has been filed with the BOH This alerts those that commented in the MEPA process that an applicant has proceeded to submit a site assignment application Response: The regulations will be amended to include such a requirement Comment: Subsection (b) should be amended so that the notice includes the right of residents of the municipality to receive a copy of the application as provided in 16.08(f) In addition, DEP should recognize that many residents simply not read legal notices DEP should require that: “(d) the applicant shall mail a copy of the published notice of the application to any individual or entity which has provided its name and addresses to the board of health to request receipt of such notices within the calendar year that the application is submitted to the Department.” Response: The regulation has been modified to require that the applicant notify all parties listed at 310 CMR 16.08(2) This section includes abutters, the local Board of Health and library, abutting Boards of Health and library, DEP, DPH, the regional planning agency, and any person that requests a copy of the application The notice must state that an application has been filed with DEP and the Board of Health for site assignment Subsection (b) was also amended to require the name of the person to whom requests for copies of the application should be sent be included in the public notice 16.20(7): Initiation of Hearings Comment: The existing time frame for notice and commencement of hearings does not provide citizens with sufficient time to gather evidence, prepare witnesses, and retain counsel Providing better notice would go a long way toward preventing such unbalanced situations at public hearings Recommend two changes: change 30 days to 90 days for commencement of the hearing after the public notice; and require notice to be provided 80 days prior to the hearing rather than 21 days Response: The timeframes for public notice and commencement of public hearings are established in the solid waste statute, MGL c.111, s.150A To modify these time frames would require modification of the solid waste statute before the regulation could be amended 16.20(9): Intervention and Participation, Ten Citizens Groups Comment: Recommend that any person be permitted to testify at hearings and have their written comments considered by MA DEP and the BOH It should be made clear that persons need not be US citizens Hearing officers can reasonably control time allowed for testimony Response: The regulations not in any way limit testimony to only US citizens Any person may comment under the current regulations Comment: Support the added language that clarifies that citizens may comment on matters of public health and safety in addition to issues regarding "damage to the environment." The burden of proof as to what is safe must be on the industry Endorse DEP’s proposed clarification that public health and safety issues lie within the acceptable scope of Ten Citizen Group Intervention Response: The final regulation has been modified to clarify that persons may comment on matters of public health and safety and are not limited only to commenting on "damage to the environment," as was always intended by the statute and the regulations Comment: Applicants should not be able to talk about job creation, building the tax base, or any other economic benefits of their proposal – unless citizens can talk about the economic detriments thereof Response: The site assignment process is supposed to consider only whether a site is suitable from the standpoint of public health, safety and the environment, not extraneous issues 16.21(1): Alternative Use of Assigned Site Comment: To the extent that the proposed modification of this section facilitates grandfathering of transfer stations, we oppose it resolutely Response: This section does not grandfather a transfer station, but rather does allow an existing site assignment at a landfill to be modified, after due notice and a public hearing, to allow a transfer station to be constructed on the site of the landfill DEP considers a transfer station that handles no more waste than the former landfill to have many fewer potential impacts on public health, safety and the environment 16.21(3)(b): Comment: By allowing transfer stations to operate where landfills or combustors have long since closed, the regulation prejudices residents and other sensitive uses established since closure, and unduly inhibits economic development around the old site The section should be amended to add “for a period of two years or less” to limit application of this section Alternatively, DEP should modify 16.40(3)(b)3 to prohibit waivers from any setback requirements in 310 CMR 16.40 Response: No revision of this section of the regulations was proposed in the public hearing draft, therefore the regulation was not modified as suggested It should be noted that unless the Board of Health limits the period of a site assignment, the assignment is effective in perpetuity and the statute requires that a notice of such activity be recorded in the applicable Registry of Deeds Unless the assignment has been restricted to a specific period of time by the Board of Health, which is rare, it would allow other solid waste activities to occur at that site In addition, any handling facility to be sited at such a site is required to handle no more waste than the existing facility was permitted to handle In addition, it must meet the setback criteria for waste handling facilities These setbacks would apply to any sensitive receptors that may have located near the site since a landfill operated on the site While waivers are possible, waivers under the siting regulations are difficult to obtain 16.22: Modifications to and Rescissions and Suspensions of Site Assignments Comment: DEP needs to make clear how a BOH will know whether an application is major and therefore requires a DEP site suitability report before the BOH hearing, or minor, requiring no DEP action before the BOH hearing 10 16.40(3)(a)6.: Sole Source Aquifers Comment: Oppose the existing exceptions (in the current regulations) to the prohibition over the recharge area of a sole source aquifer; these provisions would allow the siting of a landfill to potentially pollute a sole source aquifer that may be needed for water supplies in the future DEP should be giving priority to protecting all potential water supplies instead of leaving them to the mercy of the contaminated leachate from landfills Response: The existing regulations ban the siting of a landfill over a sole source aquifer This aquifer includes all of Cape Cod and Martha's Vineyard, among other areas, except where there are no existing public water supplies or proposed drinking water source areas down-gradient of the site, or where there are no existing private water supplies down-gradient of the site, and are sufficient existing public water supplies or potential supplies to meet the municipality's needs The applicant can purchase private supplies and replace those with hookups to public supplies This criterion essentially closes the door to siting landfills over a sole source aquifer The exceptions are very difficult to meet and are clear 16.40(3)(a)7.: Local Zoning Bylaw Comment: Support the restriction against siting in an area protected by a municipal zoning bylaw, but suggest a revision to add that the restriction also applies to a water supply ordinance in existence prior to July 1, 1987 Response: The Solid Waste Act of 1987 made it illegal for a municipality to retroactively disallow the use of previously site assigned land for a solid waste facility where the site assignment is at a site zoned industrial, unless the bylaw or ordinance existed prior to July 1, 1987 The Act then established that a municipality cannot prospectively disallow operation of a solid waste facility in an area zoned industrial except where the zoning bylaw or ordinance is intended to protect a public water supply With regard to the comment, if a water supply ordinance was in place prior to July 1, 1987, then a solid waste facility may not be constructed or expanded where it is specifically prohibited, even if it is within an industrially zoned area 16.40(3)(a)8.: Zone A and Zone B Comment: Support prohibiting a facility in the Zone A and Zone B of a surface water supply but ask that DEP reconsider the change in the setback from 500 feet to the 400 foot limit of the Zone A Response: This issue, as noted in the background document, was discussed during development of the draft regulations with the Department’s Water Supply Program DEP’s water program was satisfied that the Zone A was sufficiently protective to address transfer stations DEP will therefore use the Zone A as the setback criterion, rather than the 500 feet previously used For landfills, the setback remains the same distance (one-half mile) 16.40(3)(a)9.: Siting Upgradient of a Public Surface Water Supply Response: While there was no comment specifically about this proposed addition to the regulations, DEP has decided to remove it This criterion would have added an additional setback to the one already included in the regulations which bans the siting of a landfill within the Zone B of a surface water supply (within ½ mile of the surface water supply) While it adds additional protection, the type of hydrogeologic environment which this criterion attempted to 19 address, i.e., an area with highly transmissive soils, will most likely already be designated a Potentially Productive Aquifer because it is likely to have sufficient quantity of water with sufficient quality to be designated as such Landfills will be banned from Potentially Productive Aquifers by another criterion Therefore, this proposed criterion will be removed since it is redundant 16.40(3)(a)11.: Potentially Productive Aquifers Comment: Support protection of the entire aquifer area and oppose the exceptions set forth in subsections "a" and "b." If DEP retains "a," then the regulations should also include a process for the BOH or local water commission, with input from the USGS, to rebut the assertions of the proponent Response: The regulations will retain paragraphs (a) and (b), but break (b) into two paragraphs by adding (c) Under this approach, not only must DEP issue a Site Suitability Report which will have to address the assertions of a proponent regarding the potentially productive aquifer, the BOH is also required to hold a public hearing on every site assignment application The public hearing provides the avenue for any interested party to rebut the assertions of a proponent who makes a case pursuant to paragraphs (a), (b), or (c) Comment: Relying on the MCP to establish “non-productive drinking water source areas” is not a good idea Applying this definition to a land area under the terms of the MCP is a difficult process Landfills are not categorically included in the MCP petition criteria, but should be This is an extensive and difficult process as outlined in the MCP Application of this process to landfills is overly burdensome to the proponent, even though the development of a new public groundwater supply source in the general area would not be allowed under existing regulations Response: The regulations will retain this section by creating a new paragraph (c) The designation of an area as a Non-Potential Drinking Water Supply is solely the responsibility of DEP pursuant to 310 CMR 40.0000 and will only occur as a result of a petition under the Massachusetts Contingency Plan regulations and not under the Site Assignment Regulations Therefore, an applicant for a site assignment will not be able to petition the Department to have an area designated as a Non-Potential Drinking Water Supply under the solid waste regulations Non-Potential Drinking Water Supplies are mapped and that information is available from the Department for applicants to use in the site assignment process The first two paragraphs of this criterion allow for the applicant to demonstrate, to the Department’s satisfaction, that a landfill could be sited in a PPA either by reason of the area already being contaminated, or the PPA designation is incorrect, based on site-specific hydrogeologic studies 16.40(3(a)12.: Private Water Supplies Comment: Support increasing the setback from a private well from 500 feet to 1000 feet but oppose the existing exceptions that allow the applicant to purchase the restricted area and put the well out of service, which elevates the landfill siting over the value of the existing water supply Response: The allowance for facilities to purchase a restricted area and put a well out of service as a drinking water supply will be retained This does not give any facility license to contaminate groundwater, but does allow an option to purchase the area where one or more wells exist within the proposed setback area of a proposed facility 20 Comment: Our client is pursuing the permitting and construction of a horizontal lined landfill expansion and is currently in the EIR stage The client has already relocated the residents of one dwelling with a private well that was located within 500 feet of the proposed landfill area to a new house and private well that is located about 800 feet from the proposed expansion area This change would require abandonment of the new well Because the well is located upgradient of the landfill and is a bedrock well, there is little difference in “protectiveness” for this modest increase in distance Applying this criterion to our client would be a hardship Response: The regulation has been modified by inserting the word “upgradient” such that the setback of 1000 feet only applies if the landfill is upgradient of the private well, otherwise the minimum setback shall remain at 500 feet 16.40(3)(a)15.: Riverfront Area Comment: The increase in the existing setback of 200 feet to 400 feet effectively reduces the potential expansion area footprint by about 1.65 acres for my client Also, existing facility structures such as the leachate storage tanks, a detention basin and the existing equipment building are within 400 feet of the stream, as are landfill access roads These facilities are to be upgraded as part of Phase lined landfill development plans Applying this criterion to our client constitutes a hardship and dramatically changes the economic viability of the proposed expansion project Response: The regulations will retain the current measurement point for setbacks, which is the waste handling or disposal area, rather than the “facility” as was proposed However, the proposed setback to the Riverfront Area shall be retained to provide a greater buffer from a landfill to a river to reduce possible impacts of litter, runoff, siltation of the river, and visual impacts Therefore, non waste related buildings and access roads would not be covered by this criterion, while waste handling, processing or disposal areas would be covered 16.40(3)(a)16.: Residences Comment: Support increasing the setback from 500 feet to 1000 feet and expanding the list of sensitive receptors addressed Response: The proposed setback to sensitive receptors has been retained However, the point of compliance for such setbacks will be from the waste handling or disposal area, as specified in the current siting regulations, and not the “facility” as had been proposed Comment: The change in setback distance from 500 feet to 1000 feet would preclude the use of the new house previously described for residential purposes There appears to be no variance procedure set forth in the regulations The estimated worth of the new house is in excess of $200,000 Applying this criterion to our client would be a hardship Response: The public hearing draft included the current waiver provision at 310 CMR 16.40(6) The waiver provision does allow for waivers from specific setbacks upon a proper showing as outlined in the waiver section 16.40(3)(a)17.: Discharge of Leachate Comment: Support revising the regulations to add the words "or the Board of Health" following the works "demonstrated to the satisfaction of the Department" to allow boards of health to also 21 make a determination as to whether waste deposition would result in an adverse impact to groundwater Response: The regulation was not modified as suggested The siting regulations provide stringent siting protections for groundwater resources used as drinking water supplies or with the potential to be used for drinking water supplies In addition, landfills are required to install liners with leachate collection systems Installation of such a properly designed groundwater protection system is a design requirement properly reviewed by DEP, not a Board of Health, and is presumed to protect groundwater SOLID WASTE COMBUSTION FACILITY AND WASTE HANDLING FACILITY CRITERIA 16.40(3)(c)4.: Private Water Supply Comment: Retain use of "the waste handling area" rather than the proposed "the facility" and retain setback of 250 feet rather than 500 feet because combustion facilities are environmentally very different from landfills Where leachate and runoff are the primary concerns of landfills, this is not the case with combustion facilities and transfer stations The regulations therefore need to recognize these differences and not develop a "one size fits all" approach The environmental emphasis for combustion facilities is protection of air quality, not leachate generation Nuisance issues such as noise, traffic and odor that may be caused by non-waste handling areas are addressed through the permitting process and should not be included in siting criteria Response: The Department will retain the “waste handling area” as the compliance point for both combustion facilities and landfills However, the revised regulations will increase the setback for combustion facilities and for large transfer stations (>50 tons per day) to 500 feet and retain the existing 250 foot setback for small, fully enclosed transfer stations The increased setback will increase the buffer zone to address noise, odors, and other impacts from these larger facilities 16.40(3)(c)6.: Residences Comment: Retain use of "the waste handling area" rather than the proposed "the facility." Response: The Department will retain the “waste handling area” as the compliance point for combustion facilities 16.40(3)(d)4.: Private Water Supply Comment: Retain use of "the waste handling area" rather than the proposed "the facility" and retain setback of 250 feet rather than 500 feet Where leachate and runoff are the primary concerns of landfills, this is not the case with combustion facilities and transfer stations Nuisance issues such as noise, traffic and odor that may be caused by non-waste handling areas are addressed through the permitting process and should not be included in siting criteria Response: The Department will retain the “waste handling area” as the compliance point for handling facilities 22 16.40(3)(d)5.: Residences Comment: Retain use of "the waste handling area" rather than the proposed "the facility" and retain setback of 250 feet rather than 500 feet Response: The Department will retain the “waste handling area” as the compliance point for handling facilities GENERAL SITE SUITABILITY CRITERIA 16.40(4): General Site Suitability Criteria Comment: Potential Water Quality Impacts should be added to 16.40(4) No site should be determined to be suitable or be assigned where the anticipated drainage or stormwater runoff from the facility would not meet local, state and federal standards or criteria, or would otherwise constitute a danger to the public health, safety, or the environment, taking into consideration: a existing drainage patterns and approximate slopes anticipated after construction; b erosion and the discharge of sediment or pollutants to the drainage system, surface water, or groundwater during construction and after construction is complete; c groundwater or stormwater control or treatment structures to be used during and after construction Response: As stated at 16.40(1)(c), Facility Design Review, “All applications shall be evaluated with the presumption that the proposed facility shall be designed and constructed to meet all relevant state and federal statutory, regulatory and policy requirements.” Therefore, the suggested revision was not adopted because it is already covered by the regulations Furthermore, these are design issues that are adequately addressed during the facility permitting process The General permitting criteria at 19.038(2)(a)4 and require DEP to ensure that “the design, construction, operation, and maintenance of the facility shall not constitute a threat to the public health, safety or the environment” and “the facility design and operation includes components and measures which will assure compliance with other applicable state and federal laws, regulations and policies, including without limitation, 314 CMR 3.00 – 12.00 (water pollution control); 310 CMR 22.00 and 27.00 (water supply); 310 CMR 7.00 (air quality); and 40 CFR 257 and 258 as may be amended." 16.40(4)(a): Agricultural Lands Comment: Support tightening criteria for agricultural lands Comment: While in principle we support the expanded 250 foot setback proposed, this added protection should not be purchased at the expense of public health Thus, if DEP determines that adopting the public heath protections recommended in these comments would unduly preclude the siting of facilities, then we would urge the Department to consider reducing this setback instead Dust, odors, and truck traffic not harm cornfields; they affect human health, and that should be the DEP’s top priority Response: The revisions to the criterion for protection against the siting of a facility on agricultural lands will be adopted as proposed in order to protect against the siting of a facility in an area that would serve better for agriculture than solid waste management However, the setback that is in the current regulations of 100 feet shall be retained The 100 foot setback to agricultural land has not been an issue in the siting process and is deemed to be adequate as is, 23 particularly in light of the greater protections for agricultural lands afforded by the proposed changes in the criterion 16.40(4)(e): Protection of Open Space Comment: Support new provision for Open Space protection In addition to the categories of open space proposed to be protected, the regulations should include lands with conservation restrictions imposed by the municipality in which the facility would be located Another suggestion was that the regulation include "private open space land owned and managed by a recognized not for profit land conservation organization" such as the Trustees of Reservations and Massachusetts Audubon Experience with the Cohasset Heights Limited landfill adjacent to the Trustees of Reservations Whitney and Thayer Woods Reservation is a testament to the detrimental impact of such siting Over two decades, the Trustees spent hundreds of thousands of dollars on legal advice and staff time in administrative and adjudicative hearings to defend against the border encroachment, litter, surface and groundwater pollution, and leachate into wetlands Preventing adverse impacts to conservation land, whether that land is owned by the public or by non-profit conservation organizations, by ensuring that waste management facilities will be sited away from these sensitive areas will be to everyone’s benefit Response: The regulation has been modified to expand the setback to include state or municipal parklands “or conservation land, or other open space held for natural resource purposes in accordance with Article 97 of the Massachusetts Constitution.” In addition, the regulation was amended to address private open space as follows: “conservation land owned by non-profit land conservation organizations and open to the public.” Comment: The identification of an “adverse impact” is open to interpretation and could be speculative Many nuisance conditions associated with landfill operations can be adequately controlled to limit the potential off-site “adverse impact” from the nuisance condition However, the evaluation is subjective The control of nuisance conditions to off-site receptors and properties is best handled under existing solid waste regulations regarding facility operation and maintenance requirements Response: DEP agrees that many nuisance conditions can be adequately controlled by design and operational requirements However, locating a landfill or large combustion facility or even a large transfer station immediately adjacent to open space set aside for the public’s enjoyment and recreation could have a detrimental impact on the use and enjoyment of the open space In some cases, potential impacts could be reduced or eliminated through design and operational requirements This criterion provides an opportunity for DEP and Boards of Health to address such issues Comment: Fully support recognition that the existing regulations fail to provide adequate protection of open space However, the language of the proposed provision needs to be clarified and should provide protection for the “use and enjoyment” of such open space in addition to protection against physical degradation In addition, DEP should consider adding language about the types of “adverse impacts” that could be considered For example, beyond air and water pollution, visual impacts, noise, and traffic all could diminish the use and enjoyment of the designated types of open space, even if such impacts fall short of “nuisance conditions which would consitute a danger to the public health, safety or the environment…” 24 Response: DEP agrees that one major purpose of open space is enjoyment and has added “use and enjoyment” to the regulation Comment: The department requested feedback as to whether specific setbacks from open space areas should be included in the regulations, or whether the “adverse impact” language should be used Given the broad spectrum of types of open space and their uses, I believe the “adverse impact” language, modified to include impact on the use of such areas as indicated above, is preferable Response: DEP has retained the use of “adverse impact” rather than trying to incorporate a specific setback distance 16.40(4)(f): Potential Air Quality Impacts Comment: DEP and the BOH should consider all emissions in the air impacting the facility area, not just the emissions from the facility itself Any atmospheric emissions associated with an acute or chronic health risk should be considered, including HAPs [Hazardous Air Pollutants], not just the NAAQS [National Ambient Air Quality Standards] Response: The regulation has not been modified to address this comment However, please see the comments and responses regarding 16.40(4)(k), other sources of contamination In addition, any new waste combustor will need to meet the new Municipal Waste Combustor regulations, which include the most stringent emission standards in the country (Please note that the Beyond 2000 Solid Waste Master Plan has maintained a moratorium on the permitting of new municipal waste combustors at this time.) 16.40(4)(h): Size of Facility Comment: The proposed setback (100 feet from the waste handling area to the property line) is an important protection that must remain in the final regulations Comment: To correct an existing problem, a 100’ setback to the property line for a solid waste facility is being added to 16.00 The setback is now in 19.000 which means that DEP can determine a site is suitable under 16.00 but cannot permit this same facility under 19.000 without a variance To avoid this inconsistent outcome, the setback is being proposed to be put into 16.00 so that the setback can be dealt with during site assignment The problem with moving the setback to 16.00 as proposed is that if a proposed facility can’t meet the setback in 16.00, the facility will have to obtain a waiver prior to obtaining a site suitability determination If the waiver can’t be obtained, then DEP must determine the site is not suitable for site assignment The proposed waiver requirements of 16.40(5) are more stringent than the variance requirements of 19.080, which will make it even more difficult to site handling facilities, including transfer stations, in urban areas Response: The 100 foot setback proposed is currently in the permit criteria at 310 CMR 19.038 of the Solid Waste Management Facility regulations It was established so that there would be a minimum setback to the property line in case future development around a facility encroached upon the setbacks to residences and other sensitive receptors at some future time A facility owner will have no control over maintenance of a setback where the owner does not own all the land within the setback 25 The revisions to the siting regulations proposed to resolve the inconsistency between the siting regulations and the permitting regulations by adding the 100 foot setback to the criterion for facility size However, under the permitting criteria, the Department has granted waivers from the 100 feet where the operation is located within an industrial area and the abutters are other industries and not residences However, a facility proponent cannot apply for a waiver from one of the General Criteria, unlike for the Facility specific criteria where a proponent may apply for a waiver to reduce a specific setback distance Therefore, to be consistent with other criteria where a setback distance is established, the final regulation will allow for the waiver provision to apply to the 100 foot setback distance Language has been added to the waiver provision at 16.40(6) to allow for this 16.40(4)(j): Existing Facilities Comment: Include consideration of facilities in an "adjacent" municipality since many solid waste facilities are located close to the borders and therefore cause adverse effects to adjacent cities and towns Response: This section of the regulations has been removed It is redundant with the inclusion of section (k) addressing other sources of contamination or pollution Comment: DEP proposes to delete the provision giving preference to siting new regional facilities in municipalities that have no existing landfill or combustion facility, and to retain a modified version of the provision to consider cumulative impacts of the proposed and existing facilities DEP’s concern about the difficulty for boards of health in applying preference criteria because they are reviewing each application on its own merits is understandable However, the intent of this provision could be retained by including language that the siting of more than one regional facility in one municipality poses undue cumulative impacts Response: The paragraph that was proposed for deletion will instead be retained at this time Comment: DEP’s inclusion of “adjacent municipality(ies) is appropriate as is the deletion of the 300 ton per day minimum facility size for consideration of such impacts DEP has correctly recognized the possibility that multiple small solid waste facilities could result in unacceptable cumulative impacts in a community Response: This section of the regulations has been removed It is redundant with the inclusion of section (k) addressing other sources of contamination or pollution Comment: Support the modifications However, two changes are needed First, this section should contain a rebuttable presumption that “where a municipality already hosts a regional facility, there is a rebuttable presumption that a new site within that municipality would pose an unacceptable cumulative risk to the environment, safety, or public health Second, this section might not protect Merrimack Valley communities from the siting of further incinerators because of the past impacts of other solid waste facilities now closed Accordingly, this section as drafted would not account for the harmful effects of a past facility because it is limited to the impacts of other “existing” facilities We urge DEP to replace the phrases “existing facility” and “existing facilities” with “existing assigned site” and “existing assigned sites” respectively 26 Response: This section of the regulations has been removed It is redundant with the inclusion of section (k) addressing other sources of contamination or pollution Regarding the first issue, DEP does not agree that the regulation should be modified to contain the suggested rebuttable presumption Just because two facilities are located in the same municipality does not necessarily mean that there is an unacceptable risk to the public health, safety or the environment This would depend upon the relative locations of the facilities, the type of facility, their design and operation and individual impacts to the public health or environment Furthermore, two such facilities may be located in the same or adjacent municipalities, but be located miles from each other, in which case the combined impacts would be far less likely to represent a cumulative risk, particularly if they were transfer stations Regarding the second issue, section (k) addressing other sources of contamination or pollution will address the issues raised This criterion will allow consideration of the impacts from a proposed solid waste facility and an existing facility, whether it was properly site assigned and permitted or not 16.40(4)(j): Regional Participation (proposed for deletion in the public hearing draft) Comment: Though acknowledging it as a “reasonable goal” DEP proposes to delete this preferential criterion for sites located in municipalities not participating in a regional disposal facility because it is difficult for boards of health to compare one site assignment application to others While this is understandable, the department should not drop this goal Rather, DEP should look for other regulatory or permitting opportunities to encourage new facilities in areas that need them, not in areas already served adequately Response: The Department concurs and will retain this section of the regulations 16.40(4)(k): Consideration of Other Sources of Contamination or Pollution Comment: This is a wholly subjective criteria, unlike any other, and should be rejected for use at this time The whole purpose of the Solid Waste Disposal Act of 1987 was to develop an objective system for siting facilities Three types of criteria emerged from DEP advisory committees: 1) quantitative setback requirements; 2) criteria related to existing environmental programs, i.e., endangered species, wetlands, water quality, air quality, traffic, etc.; and 3) more qualitative criteria, relating to noise, dust, vermin, and other nuisance conditions, addressed within a large body of public health, MEPA and case-law materials Cumulative impact assessment fits into none of these categories Response: The Department disagrees The site assignment regulations have always contained a cumulative impact criterion to address the cumulative impacts of other solid waste facilities in the same municipality The final regulation expands upon that to take into consideration other sources of pollution or contamination Comment: I want to express strong opposition to the proposal First, I disagree that the statutory authority for the Department to adopt this regulation is “clearly contained” in MGL C.111, s.150A½ Each of the considerations listed in this statute is directed toward evaluation only of potential impacts of the proposed facility There is no language in the statute to indicate that any of these considerations can be extended to include the concept of “cumulative impacts.” Without this authority, the Department may not broaden the scope of review for one of the 27 factors, public health and safety, to include cumulative impacts Second, the so-called “science” of “cumulative impact assessment” is too new and untested for the Department to impose this requirement in these regulations at this time Third, the Department should avoid creating an unmanageable regulatory requirement The Department should defer the proposed change in the regulations until there has been more discussion and exchange of ideas among a variety of stakeholders across the spectrum of regulatory programs implemented by the Department Response: The Department disagrees with the first point raised M.G.L C.111, s.150A½ includes as one of the considerations “the potential for the adverse public health and safety impacts” This language is not limited to consideration only of the facility or site for a new solid waste facility The purpose of assessing other sources of pollution or contamination is to ensure that a facility will not, through the incremental addition of pollutants, or in combination with other sources of pollution or contamination, result in an adverse impact to public health or safety With regard to the second and third points, they are addressed by the extensive response that begins on page 29 Comment: There is no scientific or risk-based rationale for these criteria Furthermore, the Department has not developed a formal policy position that would support this regulatory requirement Response: With this regulation the Department is issuing Interim Guidance on how facilities subject to the cumulative impact criterion should conduct an assessment The Guidance Document is based on DEP’s established approach to risk assessment and management used in other DEP programs and relies on readily available data and analytical methodologies Comment: Oppose the requirement for "documented impacts" of existing sources of pollution and suggest that the word "documented" be removed It is unrealistic to document impacts to the environment when one considers such indirect sources of pollution The burden of proof must be on the industry to prove unequivocally that these facilities are not contributing to environmental degradation Response: The Department agrees that documenting an impact is difficult to do, whereas making decisions based upon the modeling of potential emissions from a new facility and the existing emissions from an existing facility is a more reasonable approach Response to the following comments starts on page 29 Comment: This is by far the singularly most important improvement to your siting criteria It should not be abandoned simply because you are uncertain how to measure cumulative effects Methodologies raised by citizens at the hearing would be a vast improvement over doing nothing You may find flaws in the approach, however, they can be refined over time Comment: With regards to “cumulative impacts” and the difficulty the department states exists in measurement – we suggest the time has come to start somewhere Comment: Regulatory language can adopt the legal concept of “reasonableness.” The regulations can incorporate language that allows public health departments to make sound judgment of cumulative impact based on what a “reasonable person” would consider substantial evidence The regulations should list explicit sources such as highways, train lines, other 28 industrial facilities, volume of traffic, airports, etc., but also allow individual Boards of Health to adopt additional criteria that correspond to local conditions Comment: This is an important addition that must be retained One suggestion was that the criteria put the presumption on the applicant, consistent with the precautionary principle, to show that a new facility will not unduly burden an area already adversely impacted by pollution Comment: The inclusion of this provision – whereby other sources of pollution are included in the consideration of cumulative impacts - is critical if cumulative impacts are truly to be assessed Virtually all other sources of pollution could be included While DEP may want to include additional decision criteria now or sometime in the future, this provision should be included in the current version Comment: It is possible to document multiple health indicators in a particular community, to create a cumulative score (such as overall mortality from cancer) which can be compared to other communities’ scores, and to take this into consideration when siting pollution-based waste facilities Why cannot (and should not) the overall health status of neighborhoods be a factor in siting a waste facility that by the nature of its business handles toxic and hazardous materials, creates pollution, and brings polluting vehicles into the neighborhood Risks can be ranked on a comparative ordinal scale, even when they cannot be precisely calculated and predicted This rational process of collecting comparative environmental and health data on neighborhoods, loosely called the overall environmental health of neighborhoods, can then be applied to siting decisions so as to ensure that no community bears an unfair burden of pollution from a regional facility Comment:  The regulation must consider cumulative impacts and community health status Assessment of cumulative impacts is not new and is required under the National Environmental Protection Act (NEPA) regulations Community health status and other pollution sources are crucial factors in determining the health dangers posed by adding a new or expanded waste facility in a community  Section (k) is inadequate as proposed There are three problems with this section as proposed It does not consider environmental justice; It does not consider community health status; and the proposed phrase “documented impacts of existing sources of pollution or contamination” puts the burden of proving cumulative risk on community residents rather than facility proponents It would require residents to show that existing pollution actually has caused harm to health or the environment This section should place the burden of proof squarely with those seeking to add risk, namely the applicant The regulations should say “where a community has already been exposed to one or more sources of pollution or other threats to public health, there is a rebuttable presumption that a solid waste facility would pose an unacceptable cumulative risk to that community.”  There are tools for measuring cumulative impacts Response to Several Previous Comments: The draft Site Assignment Regulations proposed to add a new criterion to the regulations entitled “Consideration of Other Sources of Contamination or Pollution” to begin to address the impacts of the siting of solid waste facilities in relation to other sources of pollution or contamination in an area However, in proposing this new criterion, the Department noted in the Background Document that it was reserving the right to withdraw the criterion until such time as the Department felt it could adequately address the 29 sources to be considered and provide guidance on how to conduct a cumulative impact assessment As is evident in this document, DEP received a large number of comments on this issue, representing a number of different perspectives DEP has carefully considered these comments, as well as the tools available to conduct such assessments and has taken these into account during the development of the interim guidance The Guidance Document is for the regulated community who will be required to conduct a facility-based risk evaluation that takes into consideration the impact of existing sources of pollution and contamination in the area It is based on DEP’s established approach to risk assessment and management used in other DEP programs and relies on readily available data and analytical methodologies DEP has decided to make three changes to the regulations in response to these comments First, DEP has decided to modify the proposed cumulative impact criterion Second, DEP has deleted the criterion currently in the regulations addressing cumulative impacts of other solid waste facilities because it would be duplicative Any cumulative impacts from other solid waste facilities would be addressed by the new cumulative impact criterion Third, DEP has amended 310 CMR 16.40(1)(a) which specifies how DEP reviews an application for a site assignment and applies standards, criteria and health policies to ensure protection of public health, safety and the environment In addition to the changes to the regulations, DEP has developed interim guidance for facility proponents that will provide a methodology for conducting a facility-based risk evaluation taking into account other air point sources DEP has modified the draft regulation by replacing the term “documented impacts of existing sources” with “taking into consideration the impacts of existing sources.” The criterion will be implemented through a two-step process DEP has developed interim guidance for site assignment applicants indicating how facilities should conduct an evaluation In addition, the Commissioner is convening a small scientific advisory panel to assist the Department in defining how to enhance its response to public concerns over cumulative impact and to provide advice on the next iteration of risk evaluation of solid waste facilities taking into consideration the impacts of sources of pollution and contamination in the area The Work Group is being asked to look at a number of technical and scientific issues, many of which have been raised by those commenting on this regulation The charge of the group is: DEP will also consult with the Solid Waste Advisory Committee on the application of the Guidance Document and solicit input from the membership on future directions Because DEP will retain the proposed criterion addressing other sources of pollution or contamination, the existing criterion addressing cumulative impacts from other solid waste facilities will be deleted from the regulations because it is now redundant If there are other solid waste facilities located in the affected area of the proposed facility then they would be considered as other sources Finally, the regulations were also amended at 310 CMR 16.40(1)(a) to clarify how the Department will review site assignment applications and to add several factors for consideration by the Department during evaluation of an application This section was modified to:  clarify that DEP will rely upon the application and other information supplied by the applicant or other information made available to the Department 30    clarify that the applicant bears the burden of showing that a proposed facility meets the criteria established at 310 CMR 16.40(3), (4) and (5) clarify that if a site is located in a Restricted Area the applicant shall receive a negative determination clarify that if a site is not located within a Restricted Area, DEP shall evaluate the criteria established at 310 CMR 16.40(3), (4) and (5) using existing state and federal standards, criteria, guidelines or allowable limits and technical health reports intended to protect the public health, safety, and the environment Environmental Justice Issues [Please note that no environmental justice criterion was included in the public hearing draft of the site assignment regulations However, numerous comments on this issue were received both orally and in writing) Comment: Incredulous the Department has made such statements regarding “environmental justice” and “cumulative impacts” that there “was no adequate definition of environmental justice” is unconscionable In response to the Department’s concern that Boards of Health may not have the resources to adequately review a cumulative impact analysis, we suggest that local Boards of Health use the resources of appropriate public agencies and institutions of higher learning Comment: We recommend the Department collaborate with other appropriate state agencies and with non-profit public and environmental health community to create an environmental health advisory board which will assist the department in addressing health implications of the department’s regulations Comment: DEP should strengthen the revised regulations to include existing disproportionate burdens and pubic health risks to the community prior to adding any additional burden via new solid waste facilities Site suitability determination should include an analysis of the impact of already existing facilities on the health and environment of communities as a baseline This baseline can then be utilized to determine whether public health and the environment will be increased or decreased by the siting of any new solid waste facility The community should be included in this evaluation to ensure that their concerns are addressed Comment:  The regulation must consider environmental justice – Subsection (k) should be re-titled “Considerations of Environmental Justice” and provide that “where placing a solid waste facility at a particular site would impose a disproportionate adverse impact on a minority or low income populations, then the site shall be deemed unsuitable.” Recommend three steps to determine if a site would impose disproportionate impacts on low income or minority populations: Identify the area of expected impact (suggest ½ mile radius); Determine concentration of low income and minority populations in the area of expected adverse impact using census tract information; and Compare minority and low-income concentrations in the expected impact area with concentrations in the Commonwealth as a whole If DEP does not feel prepared to specify an exact method of determining disproportionate impact within the regulation itself, then it should simply state within this subsection that ‘ the method of determining disproportionate impact shall be set forth by the Department in a later guidance 31 document.” The Department would be well served by establishing an environmental justice policy sooner rather than later  Alternative interim safeguards In the event DEP decides not to promulgate a cumulative impacts provision then it should consider other measures to ensure that public health is adequately protected with the following two provisions: DEP should establish designations for Areas of Environmental Justice Concern (ACEJC) Sites within these areas would be deemed unsuitable for solid waste facilities There are two advantages: It avoids the complex task of assessing cumulative impacts in every individual case; and It gives applicants a clear, predictable standard Absent a comprehensive cumulative impacts clause, the transfer station setback in 16.40(3)(d)5 should be 1000 feet Comment: DEP should develop an adequate working environmental justice policy There needs to be recognition of the issues in order to move forward Comment: Three components of environmental injustice include procedural inequity, geographic inequity, and social inequity All of these conditions are documentable, some more easily than others They should guide public decision-making about siting future waste and industrial facilities so that no community bears an unfair burden of pollution The working criteria of environmental justice and the logic that “cumulative risk results in more harm” must inform and influence the Site Assignment regulations for Solid Waste Facilities Throughout the Commonwealth, certain cities and towns or parts of cities and towns are poorer and sicker than others; many have historically been sacrifice zones for the waste and pollution of the others Site Assignment regulations should acknowledge this; and the burden should be on the facility and the siting agency to demonstrate that new site assignments not add a disproportionate environmental health burden to the community under consideration Comment: Are the infrastructure costs of new facilities worth the environmental and public health costs? Permitting new facilities requires new infrastructure at rising marginal costs and may prove less cost effective than to upgrade and retrofit old facilities To this an evaluation of the overall environmental management system is needed to determine efficiency and effectiveness Efficiency and effectiveness should always, in my opinion, include the consideration of environmental and public health concerns Response: The Department received numerous comments that the site assignment regulations should specifically address environmental justice (EJ) in the siting criteria However, please note that no environmental justice criterion was included in the public hearing draft of the proposed revisions Therefore, at this time, DEP cannot adopt a new criterion into the regulations where none was proposed for public comment, unless DEP initiates another public hearing As a result, no environmental justice criterion appears in these final regulations However, if DEP decides, at a later date, that it is necessary to adopt a specific EJ criterion into its various regulations, DEP will propose such a criterion for public comment The Department does agree with those who submitted comments that EJ issues may be important in the siting of solid waste facilities, as well as other types of facilities The Executive Office of Environmental Affairs (EOEA) and the Department are taking numerous actions to address EJ 32 issues and are examining the best way to incorporate EJ considerations into decision making throughout the Department With regard to the comments received on EJ, DEP and EOEA are taking the following actions:  DEP is already obligated to promote the goals of Title VI of the Federal Civil Rights Act of 1964 in review of permit applications  Several of the site assignment criteria, while not specifically environmental justice criteria, serve to protect the interests of those who might live near a solid waste facility In addition, DEP has expanded the cumulative impact requirements for addressing other solid waste management facilities, which is an initial step in evaluating EJ issues Where such projects will also undergo MEPA review, public input on cumulative impacts at an early stage can help inform the DEP and local permitting decisions  DEP is expanding several setbacks that will provide greater buffers between solid waste facilities and residents that may live nearby  DEP does not believe that amending each and every regulation to address environmental justice issues is the most effective or efficient way to address this important issue Many of the comments regarding EJ were submitted by citizens concerned about existing facilities, primarily transfer stations, located in their neighborhood and the impacts of those facilities on their lives In response to those comments, DEP took two actions to address these concerns: The proposed regulations included a provision that would have grandfathered certain transfer stations existing before 1970 with regard to needing a site assignment This proposed modification has been eliminated from the final regulation As discussed in more detail elsewhere in this document, there were no comments supporting this revision and numerous comments against it DEP initiated an enforcement initiative with the City of Boston Board of Health and Hospitals to determine the permitting status and compliance status of several solid waste operations located in various Boston neighborhoods Enforcement is proceeding on several of these sites, either by DEP or the Board of Health and Hospitals, with a goal of closing or cleaning up these sites 16.40(5): Promotion of Integrated Solid Waste Management Comment: This provision should be retained, not deleted The Department should continue to reinforce integrated solid waste management as well as capacity needs and geographic considerations in the Site Assignment Regulations DEP’s intention to promote an integrated solid waste management system through the CAP process is also a good idea, but will not be limited by retention of this provision in the regulations Moreover, since the timing of the CAP process is uncertain, retaining this provision ensures continual consideration of these very important state objectives Response: The Department concurs and will retain this existing section of the regulations 33 ... within the setback 25 The revisions to the siting regulations proposed to resolve the inconsistency between the siting regulations and the permitting regulations by adding the 100 foot setback to the. .. application for site assignment was submitted prior to the effective date of the regulations If a site already has a site assignment the revised setbacks will not apply General Comments on the Site Suitability... apply to any application that is not administratively complete (as determined by the Department pursuant to the Site Assignment Regulations, 310 CMR 16.10) prior to the effective date of the regulations