CITY OF GLOUCESTER
BOARD OF HEALTH
DRAFT DREDGING AND DREDGED MATERIAL
Pursuant to its authority under Chapter 111, Section 31 of the Massachusetts General Laws, the Board of Health of the City of Gloucester, Massachusetts, hereby adopts the following regulations as reasonable and necessary for the protection of the health and welfare of the citizens of the City of Gloucester.
The purpose of these regulations is to protect the public health and welfare by ensuring that the dredging and disposal of dredged materials from and into the waters within the boundaries of the City of Gloucester do not result in the release or dispersal of contaminants that may present unacceptable risks to public health and welfare.
These regulations are necessary because some sediments in waters within the boundaries of the City of Gloucester are contaminated with varying levels of metals, petroleum hydrocarbons and other contaminants as a result of industrial discharges, storm water runoff and accidental releases. See e.g., Targeted Brownfields Assessment Final Report, Marine Railways, Gloucester, Massachusetts dated November 2000; North Coastal Watershed Alliance: Salem Sound 2000, Inc., Water Quality Assessment: Gloucester Harbor dated June 2000; Dredged Material Management Plan (DMMP) – Draft Environmental Impact Report (DEIR) for Gloucester, Massachusetts dated October, 2000.
If not adequately monitored and controlled, the process of dredging and disposal of dredged materials from or into waters within the boundaries of the City of Gloucester could result in the release or dispersal of contaminated sediments into the water column and food chain. Since the waters within the boundaries of the City of Gloucester, including several public bathing beaches, are used for swimming and provide habitat for shellfish and fin fish, it is the intent of these regulations to minimize human exposure to contaminated sediments or contaminants through dermal contact or by ingestion of the water and/or the organisms in the aquatic food chain.
These regulations seek to maintain the chemical, physical and biological integrity of the waters within the boundaries of the City of Gloucester by establishing requirements, standards and procedures to monitor and control activities involving the removal by dredging and disposal of dredged material
III. SCOPE OF APPLICABILITY
Any project or activity that requires 33 U.S.C. 1251, Section 401 Water Quality Certification from the Massachusetts Department of Environmental Protection pursuant to 314 CMR 9.00, as the same may be amended from time to time, shall be subject to these regulations.
The definitions contained in 314 CMR 9.00, as the same may be amended from time to time, are incorporated herein by reference. In addition, for the purposes of these regulations, the following words and phrases shall have the following meanings:
“Board of Health” shall mean the Gloucester Board of Health.
“Bulk-heading” as that term is used in 314 CMR 9.00 shall not mean confined aquatic disposal, which is a sub-aqueous facility (i.e., a constructed cell or natural depression) into which dredged sediment is placed and then capped.
The applicant shall have the burden to demonstrate, by credible evidence, that: (1) the project will meet applicable water quality standards through compliance with 314 CMR 4.00, as implemented and supplemented by 314 CMR 9.00, as those regulations may be amended from time to time; and (2) the project, as proposed or through the imposition of reasonable conditions by the Board of Health: (a) will not present a significant risk of harm to the health or welfare of any individual or group; and (b) will have less demonstrated negative effects on the public health or welfare than any practicable alternative.
Applicants for 401 Water Quality Certification under 314 CMR 9.00 shall submit to the Board of Health a complete copy of the application submitted to MDEP pursuant to 314 CMR 9.00 within ten (10) calendar days of submission of the application to MDEP. The applicant shall provide the Board of Health with six (6) complete copies of the application and supporting documentation. If additional information is requested by or provided to the MDEP during the Board of Health review process, said information shall be forwarded to the Board of Health within three (3) calendar days of submission to the MDEP.
In addition, the Board of Health may request that the applicant provide the Board of Health with any information submitted to federal, state or local agencies under the Massachusetts Environmental Policy Act, the Massachusetts Wetlands Protection Act, the Federal Clean Water Act and any other federal, state or local laws, regulations or ordinances, or any other information or data that the Board of Health may reasonably request, insofar as that information pertains to the potential health impacts of the proposed project.
A. The Public Hearing
Within forty-five (45) days of receipt of the application, the Board of Health shall conduct a public hearing regarding the application. The applicant shall publish notice of the Board of Health hearing in the local newspaper by placing an advertisement, at the applicant’s expense, indicating the date, time and location of the Board of Health hearing along with a description of any waiver(s) sought from this regulation. Said notice shall be published at least fourteen (14) days prior to the hearing.
Any person filing an application with the Board of Health shall at the same time give written notification thereof, by delivery in hand or certified mail, return receipt requested, to all abutters of the project site. An abutter shall mean the owner of land that shares, along the water’s edge, a common boundary or corner of a project site. Project site shall mean the area owned, controlled or proposed for dredging by the applicant in which a dredging project will occur. Ownership shall be determined according to the most recent applicable tax list of the Assessor. Said notification shall be at the applicant’s expense, and shall state where copies of the application may be examined and obtained and where information regarding the date, time and place of the public hearing may be obtained. Proof of such notification, with a copy of the notice mailed or delivered, shall be filed with the Board of Health. The Board of Health may waive the abutter notification requirements if a particular project site has an unusually large number of abutters.
The Board of Health may request input on the proposal from the Gloucester Shellfish Constable, the Gloucester Fisheries Director, the Gloucester Parks & Recreation Director and the Gloucester Conservation Commission. Any comments by these municipal entities shall be provided to the Board of Health in writing by the close of the public hearing. The Board of Health may conduct a site visit, which may be conducted in conjunction with MDEP’s site visit pursuant to 314 CMR 9.00, as the same may be amended from time to time.
The public hearing or the commencement thereof may be continued, with the consent of the applicant, to an agreed-upon date, which shall be announced at the hearing.
B. The Decision
The Board of Health shall render a decision to approve or deny the application within 45 days of the close of the public hearing. The decision shall set forth the Board of Health’s findings and determinations. The failure of the Board of Health to act within such time period shall not be deemed a constructive approval of the application.
In reviewing the proposal, the Board of Health shall rely on MDEP’s classification of dredge or fill material pursuant to 314 CMR 9.00, as the same may be amended. If MDEP has not classified the dredge or fill material within 45 days after the Board of Health’s receipt of the application, the Board of Health, in its sole discretion, may continue the public hearing until the MDEP has classified the dredge or fill material.
The criteria and standards contained in 314 CMR 9.00 et seq., as the same may be amended from time to time, are incorporated herein by reference and shall be used by the Board of Health to evaluate applications under this regulation with respect to public health and welfare. The Board of Health shall consider effects on public health and welfare whenever the standards and criteria in 314 CMR 9.00 et seq. refer to other interests (e.g., aquatic ecosystem, bordering or isolated vegetated wetlands or land under water). The Board of Health shall issue an approval for the project if the Board of Health determines that the applicant has met the burden of proof in Section V of this regulation.
The Board of Health may impose conditions as part of any approval including, but not limited to, requirements for monitoring, testing and public notification during the performance of the project, including a condition that a consultant, chosen by the Board of Health at the expense of the applicant, be retained in order to monitor project activities for compliance with the Board’s regulations and permit conditions.
If, after the Board of Health has issued its decision, the applicant presents any additional information regarding the project to a federal, state or local agency under the Massachusetts Environmental Policy Act, the Massachusetts Wetlands Protection Act, the Federal Clean Water Act and other federal, state or local laws, regulations or by-laws, the applicant shall provide copies of the same to the Board of Health. The Board of Health may evaluate such additional information to determine whether that information demonstrates that the project could result in significant public health impacts and, if so, the Board may reopen the public hearing to determine whether to impose additional conditions for the protection of public health and welfare.
A filing fee of two hundred and fifty dollars ($250.00) shall accompany the application submission. The Board of Health may require the applicant to pay a review fee, which may be used by the Board of Health to retain consultant services to evaluate the application and supporting documentation and/or to monitor project activities for compliance with the Board’s regulations and permit conditions as specified in the Board of Health’s Special Account and Review Fee Assessment Regulations.
If an applicant has requested a variance from MDEP in accordance with 314 CMR 9.00 et seq., as the same may be amended, the applicant shall also request a variance from the provisions of this regulation by filing a request with the Board of Health. The variance criteria found in 314 CMR 9.00 et seq., as the same may be amended, are incorporated herein by reference and shall be used by the Board of Health in considering a request for a variance. In implementing this variance provision, the phrase “public health or welfare” shall be substituted for the word “environment” in 314 CMR 9.08(1).
VIII. GROUNDS FOR SUSPENSION AND REVOCATION OF A PERMIT
The Board or its staff may summarily suspend a permit pending a hearing on the merits of the question of revocation if, based on the evidence before it, the Board or its staff determines that grounds for revocation of a permit exist. The suspension of a permit shall take effect immediately upon service of written notice of such suspension. In lieu of notice of suspension, the Board of Health may notify an applicant in writing of any violation of the Board’s regulations or permit conditions for which the Board intends to consider revocation of a permit. Written notice of suspension or intent to revoke shall specify: (1) the grounds upon which the Board of Health shall consider revocation of the permit; (2) that the applicant has three (3) days in which to comply with the Board’s regulations or permit conditions; and (3) that if the applicant fails to comply within such three (3) days, that a hearing by the Board regarding the revocation shall be held on a date specified in the notice, which date shall be within fourteen (14) days of the date of the written notice.
A written notice shall be served in the following manner: (1) personally, by any person authorized to serve civil process; or (2) by any person authorized to serve civil process by leaving a copy of the order at the applicant’s last and usual place of abode, or (3) by sending a copy of the notice by registered or certified mail, return receipt requested, if within the Commonwealth; or (4) if the last and usual place of abode is unknown or outside the Commonwealth, by posting a copy of the order in a conspicuous place on or about the premises and by advertising it for at least three out of five consecutive days in one or more newspapers of general circulation within the City of Gloucester.
B. Grounds for Revocation of a Permit
The Board may revoke a permit on the following grounds, each of which, in and of itself, shall constitute full and adequate grounds for revocation: (1) fraud or misrepresentation in obtaining a permit; (2) violation of any regulation of the Board of Health governing dredging and dredged material disposal or of any condition of a permit issued by the Board of Health approving a project for dredging and dredged material disposal; or (3) other just and sufficient cause that the Board determines may cause unacceptable risks to public health and welfare as a result of the project. A permit may be revoked only after a hearing conducted by the Board of Health.
If any section, paragraph, sentence, clause or phrase of this regulation shall be deemed invalid by a court of competent jurisdiction, such decision shall not affect the remaining positions of this regulation, which shall remain in full force and effect and, to this end, the provisions of this regulation are hereby declared severable.
X. EFFECTIVE DATE
This regulation was adopted by vote of the Board of Health of the City of Gloucester at public hearing held on ______, the effective date of this regulation. Any proposed project for dredging or disposal of dredged material that has applied for, but not yet received, a 401 Water Quality Certification from MDEP as of the effective date shall be subject to this regulation.