Code of Massachusetts Regulations
301 CMR - EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
Title 301 CMR 11.00 - Mepa Regulations
Section 11.08 - EIR Review and Decision

Universal Citation: 301 MA Code of Regs 301.11

Current through Register 1531, September 27, 2024

(1) Publication and Review Period. Upon receiving the EIR, the Secretary shall publish notice of the availability of the EIR in the next Environmental Monitor in accordance with 301 CMR 11.15(2), which begins the EIR review period. The EIR review period lasts for 37 Days, unless extended by the Secretary on account of the Proponent's failure to meet circulation or Public Notice requirements, with the consent of the Proponent for a draft EIR or as part of a Special Review Procedure.

(2) Investigation. After receiving the EIR, the Secretary shall review the EIR and may review any relevant information from any other source to determine whether the EIR is adequate.

(3) Informal and Informational Public Consultation. An Agency undertaking a Project may hold public hearings, informal workshops, or public meetings at appropriate times prior to and during preparation of an EIR. The Agency shall provide at least seven Days notice of any hearing, workshop, or meeting to allow any other Agency or Person to prepare adequately and to make informed comments at the hearing, workshop, or meeting. The Secretary may hold an informational meeting prior to or during review of the EIR, and may, in the Scope, require the Proponent to hold an informational meeting.

(4) Public Comment Period, Extensions, Late Comments. After receiving the EIR, the Secretary shall receive into the record written comments from any Agency or Person, concerning the Project, its alternatives, its potential environmental impacts, mitigation measures and the adequacy of the EIR, provided that the subject matter of the comment is within the Scope. Comments on the EIR shall be filed with the Secretary within 30 Days of the publication of the notice of the availability of the EIR in the Environmental Monitor, unless the public comment period is extended by the Secretary on account of the Proponent's failure to meet circulation or Public Notice requirements, with the consent of the Proponent for a draft EIR or as a part of a Special Review Procedure. An extension shall not ordinarily exceed 30 Days. The Secretary may accept a late comment, provided that it is received prior to the Secretary's decision on the EIR.

(5) Withdrawal and Refiling of Single or Final EIR. With the consent of the Secretary, the Proponent may withdraw a single or final EIR prior to the Secretary's decision on the single or final EIR to provide further opportunity for public review. After such withdrawal, the Proponent may refile the single or final EIR, with or without changes, additions, or deletions, which shall be clearly identified in the refiled single or final EIR. The Secretary shall publish notice of the availability of the refiled single or final EIR in the next Environmental Monitor in accordance with 301 CMR 11.15(2). A refiled single or final EIR restarts the EIR review period in accordance with 301 CMR 11.08(1) and the public comment period in accordance with 301 CMR 11.08(4) and the legal challenge periods in accordance with 301 CMR 11.14.

(6) Comments Outside Scope. The Secretary may accept a comment not within the Scope provided that the Secretary finds that it is material and that it was not reasonably possible with due diligence to have made it during review of the previous review document or that the comment raises critically important issues regarding the potential environmental impacts of the Project.

(7) Agency Review. An Agency shall review an EIR circulated to it by the Proponent. If it appears that the Project requires Agency Action by the Agency or may significantly affect any interest of the Agency or any statutes or regulations administered by the Agency, the Agency shall:

(a) file comments with the Secretary in accordance with 301 CMR 11.08(4); and

(b) specify in its comments: any Agency Action required to be taken by the Agency for the Project; any aspect of the Project or issue requiring additional description or analysis; and any opportunity to maximize consistency and facilitate coordination between the Agency Action and MEPA review or any other Agency Actions.

A Participating Agency's failure to specify an aspect of the Project or issue requiring additional description or analysis shall have the effect of a determination that the information presented in the EIR and any previous review document, together with information already provided in any application for a Permit, Financial Assistance or a Land Transfer, sufficiently defines the nature and general elements (but not necessarily the technical details) of the Agency Action on the Project, such that the Participating Agency can fulfill its obligations in accordance with M.G.L. c. 30, §§ 61 and 62K, and 301 CMR 11.12(5).

(8) Secretary's Determination on EIR.

(a) General. Within seven Days after the close of the public comment period in accordance with 301 CMR 11.08(4), the Secretary shall issue a written certificate stating whether or not the EIR adequately and properly complies with MEPA and 301 CMR 11.00. The Secretary shall attach to the certificate a copy of each comment timely received. The Secretary's failure to issue a timely certificate shall have the effect of a determination that the EIR is adequate and does so comply. The Secretary's decision on the EIR shall be subject to the legal challenge periods in accordance with 301 CMR 11.14.

(b) Draft EIR. Upon review of a draft EIR, the Secretary shall:
1. determine that the draft EIR is adequate, even if certain aspects of the Project or issues require additional description or analysis in a final EIR, provided that the Secretary finds that the draft EIR is generally responsive to the requirements of 301 CMR 11.07 and the Scope;

2. determine that no substantive issues remain to be addressed and:
a. publish notice in the next Environmental Monitor that the draft EIR shall be reviewed as a final EIR; or

b. require the Proponent to file responses to comments on the draft EIR and Proposed Section 61 Findings, including any and all actions to reduce the potential for unfair or inequitable effects on an Environmental Justice Population, and direct that the responses and findings shall be filed, circulated, and reviewed as a final EIR in a subsequent Environmental Monitor;

3. determine that the draft EIR is inadequate and require the Proponent to file a supplemental draft EIR in accordance with 301 CMR 11.07.

(c) Final EIR. Upon review of a final EIR, the Secretary shall:
1. determine that a final EIR is adequate, even if certain aspects of the Project or issues require additional analysis of technical details, provided that the Secretary finds that the aspects and issues have been clearly described and their nature and general elements analyzed in the EIR or during MEPA review, that the aspects and issues can be fully analyzed prior to any Agency issuing its Section 61 Findings, and that there will be meaningful opportunities for public review of the additional analysis prior to any Agency taking Agency Action on the Project; or

2. determine that the final EIR is inadequate and require the Proponent to file a supplemental final EIR in accordance with 301 CMR 11.07.

(d) Single EIR. Upon review of a single EIR allowed by the Secretary in accordance with 301 CMR 11.06(8), the Secretary shall:
1. determine that the single EIR is adequate, even if certain aspects of the Project or issues require additional analysis of technical details, provided that the Secretary finds that the aspects and issues have been clearly described and their nature and general elements analyzed in the EIR or during MEPA review, that the impacts and issues can be fully analyzed prior to any Agency issuing its Section 61 Findings, and that there will be meaningful opportunities for public review of the additional analysis prior to any Agency taking Agency Action on the Project;

2. determine that substantive issues remain to be addressed and require the Proponent to file a final EIR in accordance with 301 CMR 11.07; or

3. determine that the single EIR is inadequate and require the Proponent to file a supplemental single EIR in accordance with 301 CMR 11.07.

(9) Notification to Department of Environmental Protection for Projects Located in Landlocked Tidelands. If the Project is located in landlocked tidelands as defined in 310 CMR 9.02, then within 30 days after a certificate is issued determining that a final EIR or a single EIR is adequate the Proponent shall file with the Department of Environmental Protection a completed form notifying the Department of Environmental Protection that work will be conducted within landlocked tidelands. The Proponent shall attach the certificate to the form. The Proponent shall comply with all obligations set forth in the certificate and the Department of Environmental Protection shall enforce such conditions consistent with M.G.L. c. 30 § 62I.

(10) Notification of Commencement of Construction. The Proponent shall notify the Secretary upon Commencement of Construction for any Project for which the Secretary required an EIR.

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