Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. It is hereby found that the coastal and marine waters of the commonwealth are resources of significant economic, social, commercial, recreational, environmental and aesthetic value which are increasingly threatened by pollution. It is further found that the ground water of the commonwealth is a resource which is essential to the health, safety and welfare of the citizens of the commonwealth which should be protected against pollution and depletion. It is further found that application of wastewater can be accomplished in some circumstances in a manner which protects the commonwealth's ground water resources and may eliminate in these circumstances the need for the discharge of wastewater into coastal waters. Therefore, it is the policy of the commonwealth to protect coastal and marine waters by encouraging land application of wastewater and by allowing the discharge of municipal wastewater into certain coastal waters only when an existing discharge has degraded or threatens to degrade a designated ocean sanctuary and when land application is not feasible because of technical, economic, environmental and public health considerations.

SECTION 2. Chapter 132A of the General Laws is hereby amended by inserting after section 12, as appearing in the 1988 Official Edition, the following three sections:-

Section 12A. Sections twelve B to sixteen E, inclusive, and section eighteen shall be known and may be cited as the Massachusetts Ocean Sanctuaries Act.

Section 12B. As used in sections twelve A to eighteen, inclusive, the following words shall have the following meanings:

"Act", the Massachusetts Ocean Sanctuaries Act.

"Adjudicatory hearing", a hearing conducted pursuant to sections nine, ten, ten A, eleven and twelve of chapter thirty A.

"Applicant", any city, town, district, county or authority which has the legal ability to implement alternative forms of wastewater disposal, including land application, and which applies for a variance pursuant to the Act.

"Coastal embayment", coastal or marine waters that have a restricted opening to the ocean due at least in part to the formation of a barrier beach.

"Commissioner", the commissioner of the department of environmental management.

"Department", the department of environmental management.

"Environmental impact report", an environmental impact report prepared pursuant to the Massachusetts Environmental Policy Act, sections sixty-one to sixty-two H, inclusive, of chapter thirty.

"Estuary", a semi-enclosed body of water which has a free connection with the open sea, within which sea water is measurably diluted with fresh water derived from outflowing fresh water rivers.

"Existing discharge", a municipal, commercial or industrial discharge at the volume and locations authorized by the appropriate federal and state agencies on July fifteenth, nineteen hundred and seventy, in the case of the Cape Cod Ocean Sanctuary; on December eighth, nineteen hundred and seventy-one, in the case of the Cape Cod Bay and Cape and Islands Ocean Sanctuary; on June twenty-seventh, nineteen hundred and seventy-two in the case of the North Shore Ocean Sanctuary; and on December thirtieth, nineteen hundred and seventy-six, in the case of the South Essex Ocean Sanctuary.

"Facilities plan", a plan which satisfies the planning requirements applicable to applicants for federal grants for the construction of publicly owned wastewater treatment works, as determined by the division of water pollution control.

"Person", any agency or political subdivision of the federal government or the commonwealth, any state, public or private corporation or authority, individual, trust, firm, joint stock company, partnership, association, or other entity, and any officer, employee or agent of said person, and any group of said persons.

"Proposed discharge", an increase in volume or change in location of an existing discharge from a publicly owned treatment plant or combined sewer system.

"Publicly owned treatment plant", a sewage or septage treatment plant owned by a public entity.

Section 12C. The department shall promulgate such regulations as it deems necessary for the implementation, administration and enforcement of the act. The department shall integrate its implementation, administration and enforcement of the act with other programs for the protection of the public health, safety, welfare and the environment.

SECTION 3. Section 13 of said chapter 132A, as so appearing, is hereby amended by adding the following paragraph:-

Notwithstanding the foregoing, the landward boundary of each ocean sanctuary shall be seaward of the mean low-water line in all rivers, bays, harbors, and coves at the point where the distance between the mean low water lines on either side is two hundred yards or less. The department shall have the regulatory authority to change from time to time the landward boundary of an ocean sanctuary to extend inward in rivers, bays, harbors, or coves to include environmentally sensitive areas. Such changes shall be reflected on the official ocean sanctuaries map.

SECTION 4. Said chapter 132A is hereby further amended by striking out sections 14 to 16, inclusive, as so appearing, and inserting in place thereof the following nine sections:-

Section 14. All ocean sanctuaries as described in section thirteen shall be under the care, oversight and control of the department and shall be protected from any exploitation, development, or activity that would significantly alter or otherwise endanger the ecology or the appearance of the ocean, the seabed, or subsoil thereof, or the Cape Cod National Seashore.

Section 15. Except as otherwise provided herein, the following activities shall be prohibited in an ocean sanctuary: the building of any structure on the seabed or under the subsoil; the construction or operation of offshore or floating electric generating stations, the drilling or removal of any sand, gravel or other minerals, gases or oils; the dumping or discharge of commercial, municipal, domestic or industrial wastes; commercial advertising; the incineration of solid waste or refuse on, or in, vessels moored or afloat within the boundaries of an ocean sanctuary.

Section 16. Nothing in this act is intended to prohibit the following activities, uses or facilities: In all ocean sanctuaries except the Cape Cod Ocean Sanctuary the planning, construction, reconstruction, operation and maintenance of industrial liquid coolant discharge and intake systems and all other activities, uses and facilities associated with the generation, transmission, and distribution of electrical power, provided that all certificates, licenses, permits and approvals required by law are obtained therefor, and provided, further, that such activities, uses and facilities shall not be undertaken or located except in compliance with any applicable general or special statutes, rules, regulations or orders lawfully promulgated; the operation and maintenance of existing municipal, commercial or industrial facilities and discharges where such discharges or facilities have been approved and licensed by appropriate federal and state agencies; the laying of cables approved by the department of public utilities; channel and shore protection projects, navigation aids, projects authorized under chapter ninety-one, deemed to be of public necessity and convenience, contingent upon obtaining the required approval wherever applicable by the United States Army Corps of Engineers, the division of water pollution control, the department of environmental quality engineering, or the department; other improvements not specifically prohibited by said sections twelve B to sixteen F, inclusive, and said section eighteen which are approved by appropriate federal and state agencies and which are consistent with said sections twelve B to sixteen F, inclusive, and said section eighteen, including the maintenance and repair of existing structures or uses, but not any change or extension of such structures or uses unless otherwise permitted by said sections twelve B to sixteen F, inclusive, and said section eighteen; the harvesting and propagation of fish and shellfish in all forms, so long as the department and the department of fisheries, wildlife and environmental law enforcement are satisfied that such activities are carried on in accordance with sound conservation practices; temporary educational and scientific activities jointly permitted by appropriate state agencies; and the extraction of sand and gravel from the seabed and subsoil of a sanctuary for the purposes of shore protection or beach restoration, provided, however, that such shore protection or beach restoration is approved by the department of environmental quality engineering.

Except in the Cape and Islands Ocean Sanctuary, the Cape Cod Ocean Sanctuary, and the Cape Cod Bay Ocean Sanctuary, nothing in this act is intended to prohibit municipal wastewater treatment discharges and municipal wastewater treatment facilities if such discharge into the ocean sanctuary is the only feasible alternative to existing water pollution problems if it is consistent with the intention and purposes of this chapter, and it is approved and licensed by appropriate federal and state agencies. In the North Shore Ocean Sanctuary, discharges shall be permitted from municipal waste treatment facilities if construction is commenced prior to January first, nineteen hundred and seventy-eight or if a city or town has been awarded a federal or state grant for construction of a wastewater treatment facility prior to January first, nineteen hundred and seventy-eight, if the waste has been treated by the best practical means, if such a discharge is in accordance with plans developed under the provisions of clause (10) of section twenty-seven of chapter twenty-one, and such plans are subject to the approval of the division of water pollution control after a public hearing conducted by said division.

Section 16A. In cases where the prohibition in section fifteen against discharges of municipal wastes into the ocean sanctuaries may not further the purposes of the act, such discharges may be allowed; provided, however, that a suitable quality of effluent is achieved to protect the appearance, ecology, and marine resources of the sanctuary; and, provided further that the department, in its discretion, upon application, grants a variance from the prohibitions of said section fifteen for the proposed discharges, subject to the provisions of sections sixteen B to sixteen F, inclusive.

Section 16B. A variance under the provisions of section sixteen A may be granted only when the following prerequisites are met:-

(1) The proposed discharge is the only feasible alternative, based upon technical, economic, environmental and public health factors.

(2) The proposed discharge shall be consistent with the intent and purpose the Act. Any discharge must be able to meet the water quality standards and the standards of the Act to protect the appearance, ecology and marine resources of the waters of the sanctuary.

(3) The applicant shall have adopted and implemented a plan approved by the department of environmental quality engineering requiring the pretreatment of all commercial and industrial wastes discharged to the municipal wastewater treatment system.

(4) The applicant shall have adopted and implemented a program for water conservation according to the guidelines established by the water resources commission.

(5) The applicant shall have adopted and implemented a plan, approved by the department of environmental quality engineering, to control inflow and infiltration.

(6) The applicant shall have adopted and implemented a plan, approved by the department of environmental quality engineering, to control any combined sewer overflows.

(7) The applicant shall have adopted and implemented a plan to review and control growth and connections to the municipal wastewater treatment system and treatment works so as to ensure that design and treatment capacity are not exceeded. The plan shall require notification to the department and the division of water pollution control whenever average flows within the system for any quarter equal or exceed eighty percent of the design capacity of the treatment plant. At that time, the applicant shall initiate the design and construction of additional treatment capacity, or other appropriate measures. The department and the division of water pollution control shall take appropriate action to ensure that the design capacity of the treatment plant is not exceeded.

(8) The proposed discharge will not significantly affect the quality or quantity of existing or proposed water supplies by reducing ground or surface water replenishment.

(9) The proposed discharge must be treated to a secondary level, and such other treatment to remove nutrients or other pollutants which is found to be necessary to avoid degradation of the ecology, appearance and marine resources of the designated sanctuary and to meet water quality standards.

(10) The proposed discharge is consistent with the policies of the Massachusetts coastal zone management program.

(11) The proposed discharge and treatment plant are consistent with all applicable federal, state, and local laws, ordinances, by-laws, rules and regulations protecting the environment, including but not limited to the requirements of chapters twenty-one, ninety-one, one hundred and thirty, and one hundred and thirty-one.

(12) The proposed discharge and outfall structure will not adversely impact marine fisheries or interfere with fishing grounds or the normal operation of fishing vessels.

Section 16C. No variance approved by the department may authorize a discharge into an estuary or coastal embayment or a discharge which will have a significant adverse effect upon an estuary, a coastal embayment, or land subject to tidal action. Any variance approved by the department shall require the applicant to eliminate all discharges into estuaries and coastal embayments from publicly owned treatment works under control of the applicant. Nothing in this section shall be construed to prohibit discharges within estuaries or coastal embayments from facilities designed to abate existing discharges exclusively from combined sewer overflows, where such facilities have been approved by the division of water pollution control, and where such existing discharges from combined sewer overflows degrade or threaten to degrade the designated ocean sanctuary nor is anything in this Act intended to alter the effect of the previous exemptions found at chapter one hundred and twenty of the acts of nineteen hundred and eighty-one and chapter three hundred and sixty-nine of the acts of nineteen hundred and eighty-four.

The seaward boundary of the Plymouth - Kingston Duxbury coastal embayment shall be a line between Gurnet Point and Rocky Point, provided, however, that no discharge may be authorized in a depth of water which at mean low tide is less than thirty feet.

Section 16D. An application for a variance shall satisfy the following minimum requirements:

(1) The application shall include a final facilities plan approved by the division of water pollution control, and a final environmental impact report.

(2) The application shall include an evaluation of alternatives, including land disposal.

(3) The application shall demonstrate that land disposal is not a feasible alternative for all or a part of the discharge.

(4) The application shall demonstrate how the applicant satisfies all requirements of section sixteen B.

Section 16E. Upon receipt of an application for a variance, the department shall provide public notice, an opportunity for comment, and shall hold a public hearing on the application. Individual notice shall be provided to all municipalities bordering the affected sanctuary. Following the public hearing, the department shall prepare a proposed final decision and provide public notice thereof, including individual notice to any person commenting on the application and to all municipalities bordering the affected sanctuary. The proposed final decision shall take effect within thirty days of the public notice unless any person aggrieved by the decision requests an adjudicatory hearing prior to the expiration of the thirty days. In any adjudicatory hearing, the applicant shall have the burden of proving that the proposed discharge satisfies the requirements of section sixteen B. Following an adjudicatory hearing, the commissioner shall make the final decision and provide notice to all parties. The final decision shall take effect within thirty days, unless an appeal is taken pursuant to section fourteen of chapter thirty A prior to the expiration of the thirty days.

Section 16F. Any condition adopted by the department in approving a variance shall become a condition of the discharge permit issued by the division of water pollution control pursuant to chapter twenty-one. The department shall have authority equivalent to that provided by sections forty-five to forty-six A, inclusive, of chapter twenty-one, and by section sixteen of chapter twenty-one A, to enforce any condition established by the department in approving a variance.

SECTION 5. Said chapter 132A is hereby further amended by striking out section 18 and inserting in place thereof the following section:-

Section 18. All departments, divisions, commissions, or units of the executive office of environmental affairs and other affected agencies or departments of the commonwealth shall issue permits or licenses for activities or conduct their activities consistently with the act, and shall not permit or conduct any activity which is contrary to the provisions of the Act. Except as provided by sections sixteen B through sixteen F, inclusive, the Act shall not require any additional permits from the department, but other departments, divisions, commissions, units, or other agencies shall confer and consult with the department to ensure compliance with the Act. The attorney general or the appropriate state agency shall take such action as may be necessary from time to time to enforce the provisions of the Act, and the superior court shall have jurisdiction to enforce the provisions thereof.

SECTION 6. Notwithstanding the provisions of this act, the town of Gosnold may build a primary wastewater treatment facility, and discharge from such a facility into the Cape and Islands Ocean Sanctuary, pursuant to any waiver of secondary treatment granted by the United States Environmental Protection Agency pursuant to section 301(h) of the Federal Water Pollution Control Act. This section shall not be construed to exempt such a facility or discharge from any other applicable provision of law, including but not limited to, chapter twenty-one of the General Laws.

SECTION 7. Within nine months of the effective date of this act the department shall produce an updated series of maps of sufficient scale to clearly show the boundaries of the various ocean sanctuaries.

SECTION 8. Notwithstanding any general or special law to the contrary, there is hereby established a Generic Environmental Impact Review Fund to be administered by the executive office of environmental affairs for the purpose of preparing a generic environmental impact report which would evaluate both the short and long-term cumulative impact of existing and future sewage and wastewater discharges into Massachusetts Bay. There shall be deposited in the fund: voluntary contributions of money and other liquid assets; such amounts as may be appropriated therefor by the general court; any income derived from deposits to the fund.

The fund shall be dedicated to use in the preparation of generic environmental impact report and may be used administratively by the department of environmental management towards completion of said report. On or before June thirtieth, nineteen hundred and ninety-one, the department shall file said report with the secretary of the executive office of environmental affairs. Should insufficient funding be available for completion of said report by said date, the report may be filed with the secretary of environmental affairs on or before June thirtieth, nineteen hundred and ninety-two.