Section 3B: Permit application fees; annual compliance assurance fees
Section 3B. Notwithstanding any general or special law to the contrary, the department may, by regulation, establish permit application fees payable by all persons filing applications for a permit pursuant to the provisions of this chapter. For the purposes of this chapter, ''permit'' shall mean any permit, license, certificate, formal determination, registration, plan approval, variance, or other approval issued by or required by the department pursuant to the authority of chapter twenty-one E. For applications filed on or before December thirty-first, nineteen hundred and ninety-four, the fee for the category of permit application that involves the most extensive processing and consideration shall not exceed six thousand dollars per application and shall be the highest application fees. For applications filed on or after January first, nineteen hundred and ninety-five; the department shall, by regulation, establish such fees based on the department's reasonable, costs for processing and considering such permit applications including, without limitation, providing technical assistance, and performing and analyzing such environmental monitoring as is necessary to act on such applications. Such fees shall be based on a scale that accounts for the department's reasonable costs, appropriate for different categories of permit applications and permits. Permit application fees shall be payable upon filing the application.
In instances of severe financial hardship, the commissioner or his designee may grant a timely request to extend the time for making payment. The department may require that persons applying for permits as a result of an order issued pursuant to clause (B) of paragraph (1) of subsection (b) of section 10, or as a result of any other enforcement action by the department or another agency of the commonwealth or its subdivisions, pay double the otherwise applicable fee.
Notwithstanding any general or special law to the contrary, the department may, by regulation, establish annual compliance assurance fees for sites or vessels, payable by all persons, excluding agencies of the commonwealth, who are, or are required to be, performing response actions at such sites or vessels, or who have been notified by the department that they are potentially liable for such sites or vessels pursuant to section 5, for each year or fraction thereof in which such response actions are performed or required to be performed, from the time that notice is first required to be given to the department, pursuant to section 7, until the time that a level of no significant risk has been achieved in accordance with subsection (g) of section 3A; provided, however, that such fees shall not apply to sites or vessels for which a level of no significant risk has been achieved within a short duration in response to a sudden release or threat of release of oil or hazardous material. Such fees shall be based on the department's cost for inspection, auditing, enforcement and compliance activities.
Such fees shall be based on a scale that accounts for the extent of such enforcement and compliance activity that is appropriate for different categories of permits; provided that the compliance assurance fee for the category of permit that involves the most extensive enforcement and compliance activity shall not exceed ten thousand dollars per response action per site or vessel per year and shall be the highest compliance assurance fee. At least forty-five days before the date such fee is due, the department shall notify each person owing such fee of the amount of the fee due and date by which payment is due. In instances of severe financial hardship, the commissioner or his designee may grant a timely request to extend the time for making payment.
Failure by any person to pay any annual compliance assurance fee when due may result in suspension of or, if such failure continues for sixty days or more, may result in revocation of a permit issued pursuant to the provisions of this chapter, and shall be grounds for denial of any permit application filed by such person that is pending before the department, and for suspension or revocation of any or all other permits, licenses, or other approvals that such person has obtained from the department. In the event of untimely payment, interest on the amount due shall be assessed at the rate determined by the secretary of the executive office for administration and finance pursuant to section twenty-nine C of chapter twenty-nine. Such interest shall be in addition to any other remedy or penalty that might be applicable. Notwithstanding the provisions of section five, a person who has paid in full an annual compliance assurance fee pursuant to this section, including interest if and when applicable, shall not be liable to the commonwealth for the costs incurred by the department or by its agents or contractors for overseeing, or for supporting the overseeing of, the response action being performed by such person at or for a site or vessel, including but not limited to the costs of inspections, auditing, or enforcement activities necessary to ensure compliance with requirements for response actions at or for a site or vessel, if such costs were incurred during the period for which the annual compliance assurance fee was required to be paid for that site or vessel.
The department shall, by regulation, establish a schedule for timely action on the permits pursuant to this chapter. Said schedules may be based on the lengths of time appropriate for different categories of permits, and may make provisions for situations when permits other than those required pursuant to this chapter might be required. Each such schedule shall be as follows:
(1) the schedule shall begin when an application is received by the department and the application fee paid;
(2) one or more periods of reasonable length, based on the nature and complexity of the review required of the department, at the end of which time the department shall issue a decision to grant or deny the permit, or an identification of deficiencies in the application; provided, that the schedule may reasonably limit the amount of time to which the applicant may remedy such deficiencies;
(3) a period of reasonable length, based on the nature and complexity of the review required of the department, beginning with receipt of materials submitted by the applicant in response to the department's identification of deficiencies, at the end of which time the department shall issue a decision to grant or deny the permit;
(4) allowance for applicable state or federal public participation requirements; and
(5) a provision extending the time periods set forth in clauses (2) and (3) when action by another federal, state, or municipal government agency is required before the department may act, when judicial proceedings affect the ability of the department or the applicant to proceed with application, when the department has commenced enforcement proceedings which could affect the application, or when the applicant provides written assent extending any applicable time period.
If the department fails to take timely action on a permit application within a time period set forth in the applicable schedule, one day shall be subtracted from the number of days allowed for the department's next action in the appropriate schedule for each day that the department's action is tardy, unless the period has been extended pursuant to clause (5). Should the department fail to take timely action on a permit application within the time period set forth in the applicable schedule pursuant to clause (3), subject to any adjustment required by the preceding sentence, the department shall refund without further appropriation the permit application fee paid by the applicant unless the time period has been extended pursuant to clause (5), and shall continue to process the permit application on a high priority basis. The requirements for schedules set forth in this section shall not apply to adjudicatory hearings conducted by the department.
As a precondition to the department's authority to establish permit application fees and annual compliance assurance fees pursuant to the provisions of this chapter, and prior to the first establishment of such fees, the department shall promulgate all regulations required pursuant to this section.
On or before July first, nineteen hundred and ninety-four, and on or before July first of every third year thereafter, the department shall review all fees and schedules established by the department pursuant to this section, and shall by regulation adjust fees and schedules as necessary, and in compliance with the requirements of this section, to reflect changes in regulatory requirements, technologies, the nature and cost of the department's permitting and compliance activities, and improvements in the department's practices and procedures. To the maximum extent practicable, this review shall be coordinated and combined with the review required pursuant to subsection (j) of section eighteen of chapter twenty-one A.
The department shall submit any regulations promulgated under the provisions of this section establishing permit application fees or annual compliance assurance fees to the joint legislative committee on natural resources and agriculture and to the house and senate committees on ways and means at least sixty days prior to the effective date of said regulations.
All monies received by the department for permit application fees and annual compliance assurance fees pursuant to this chapter, and not refunded to permit applicants, shall be deposited in the Environmental Challenge Fund, established pursuant to section two J of chapter twenty-nine.
The provisions of subsections (e), (f), (g), and (h) of section eighteen of chapter twenty-one A shall apply to activities conducted pursuant to the provisions of this chapter, and fees collected for such activities shall be deposited in the Environmental Permitting and Compliance Assurance Fund, established pursuant to section two P of chapter twenty-nine.