Massachusetts Proposes Cumulative Impact Assessment Regulations

Massachusetts recently proposed regulations that would require Cumulative Impact Assessments (CIAs) for certain air permit applications. Massachusetts had previously drafted a framework that guided the development of these proposed regulations. The proposed regulations would increase requirements and lengthen timelines for some Comprehensive Plan Applications (i.e., for obtaining an air permit). The proposed regulations are open for public comment until April 7, 2023.

Although these regulations are Massachusetts-specific, other states are increasingly including CIAs and other environmental justice (EJ) analyses in their permitting procedures. For example, New Jersey had already proposed similar regulations and New York State recently signed a “Cumulative Impacts Bill” into law, although this law is yet to be codified into proposed regulations.

If enacted, the proposed Massachusetts regulations may require a CIA for smaller permit applications if the facility is within 1 mile of an EJ population. For larger permit applications and facilities, a CIA may be required if the facility is within 5 miles of an EJ population. For context, according to the Massachusetts Department of Public Health’s EJ tool, more than half of all Massachusetts municipalities contain at least one EJ population.

If a CIA is triggered, a facility will be subject to the following requirements:

• A pre-application community notice must be filed 60 days before submitting the permit application. This notice will include an EJ fact sheet.
• The CIA will assess existing community conditions using various state and federal maps, tools, and databases.
• The CIA will include air dispersion modeling for criteria air pollutants. The new regulations also give the State the power to request air modeling for the newly defined pollutant class “air toxics.”
• The CIA will include a risk characterization of air toxics exposure in the community. This step will involve calculation of cumulative cancer risk and cumulative non-cancer hazard.
• The facility will need to evaluate and describe how the proposed project could affect environmental and public health conditions in nearby EJ populations.
• For air permit applications that previously required a 30-day public comment period, a 60-day public comment period will now be required.
• The new regulations give the State increased license to deny an air permit application.
• In a departure from the proposed framework, a CIA will not be required for certain projects proposing to decrease facility-wide emissions over a two-year period.

To discuss these developments and how they may impact you—especially if your facility is adding or modifying equipment or preparing an air permit application—please use the form below to contact one of our experts.