Permitting of Test Projects

(1) General. The Department may, at its discretion, issue a permit authorizing a Test Project that the Department determines has minimal impacts. The Department may require that an applicant document the readiness of the device or technology for in situ testing with the results of laboratory testing, modeling, technical evaluations, or similar forms of supporting material. (2) Standards. Except as otherwise provided, the procedural requirements of 310 CMR 9.11 through 9.27 shall not apply to Test Projects. The procedural requirements of 310 CMR 9.12, 9.16, 9.17, 9.22, and 9.26 shall apply to the permitting of Test Projects. The application shall include sufficient documentation to demonstrate that the Test Project complies with 310 CMR 9.35(2). During the operation of the Test Project, the Permittee shall comply with all applicable performance standards set forth in 310 CMR 9.32 through 9.55 except as otherwise provided in 310 CMR 9.30(2). During the operation of the Test Project, the Permittee shall also comply with the following standards: (a) In the event that the project does not comply with one or more of the applicable performance standards, the Permittee shall notify the Department in writing within 72 hours of the discovery of such noncompliance. The written notice shall include a plan and schedule for bringing the Test Project into compliance as soon as is practicable. Upon receipt of said written notice, the Department may require the Permittee: to modify the Project to comply with all applicable performance standards or to remove the Test Project immediately and restore the area to pre-project conditions. (b) The Permittee shall remove all structures authorized by the permit and restore the Project Site to pre-project conditions prior to expiration of the permit. (c) A certification by a Registered Professional Engineer pursuant to 310 CMR 9.37(1)(a) is not required for a Test Project. (3) Application Requirements. For the purpose of authorizing eligible Test Projects under 310 CMR 9.30, the following provisions shall apply: (a) Application. An applicant for a Test Project permit shall submit a written application on forms provided by the Department, signed by the applicant and landowner if other than the applicant. The information required below in 310 CMR 9.30(3)(b) and (c) may be provided in a separate application for a Chapter 91 permit or as part of a Combined Application for a permit pursuant to Chapter 91 and an Order of Conditions pursuant to the Wetlands Protection Act, M.G.L. c. 131, § 40. (b) The application shall be prepared in accordance with all applicable instructions contained in the Department's application package. Plans submitted with a Notice of Intent or referenced in an Order of Conditions under the Wetlands Protection Act, M.G.L. c. 131, § 40, shall accompany the application. In lieu of plans prepared by a Registered Professional Engineer or Registered Land Surveyor, the applicant shall show the proposed Project Site on a plan designating all project components by coordinates referenced to the Massachusetts State Plane Coordinate System. (c) The following documentation shall be submitted with the application: 1. a description of the Test Project; and 2. a plan for installing, testing, and removing project components; (4) Public Notice and Notice to Abutters. At least 21 days prior to issuance of a permit, the applicant shall cause, at his or her own expense, notice to be published in a newspaper of general circulation in the area where the project is located. Such notice shall contain: (a) the applicant's name and address; (b) a description of the project location; (c) a description of the project; (d) a statement that within 15 days of the date of publication written comments will be accepted, the address where comments regarding the application may be sent, the address where the application may be viewed, a statement that a public hearing may be held upon request by the municipal official, and a statement that a municipality, ten citizen group or any aggrieved person who has submitted written comments before the close of the public comment period may appeal and that failure to submit written comments will result in the waiver of any right to an adjudicatory hearing. The applicant shall also send a copy of the notice to the persons identified in 310 CMR 9.13(1)(a) by certified mail, return receipt, and provide proof of such notice to the Department. With the agreement of the conservation commission, joint notice under M.G.L. c. 131, § 40, and M.G.L. c. 91 may be published and sent to abutters, provided it contains the requisite information and meets the requisite standards pursuant to each statute and its implementing regulations. Joint notice may be provided even if the applicant does not submit a Combined Application. (5) Fees. All applicants for a permit under these procedures shall pay the application fee, or the renewal fee, in accordance with the provisions of 310 CMR 9.16. No tidewater displacement fees or occupation fees shall be assessed. (6) Decision on Applications. The Department shall issue a permit or permit denial within 30 days of the close of the public comment period or receipt of the Order of Conditions, whichever is later. (7) Term. A permit issued under 310 CMR 9.30 shall be valid for no more than one year. (8) Extension of Permit. Upon request of the Permittee, the Department may extend the term of the permit for one additional one year period, without the filing of a new application. Notice of the extension request shall be published by the Permittee and distributed to the persons identified in 310 CMR 9.30(4) above at least 30 days prior to the expiration of the permit. (9) Appeals. The appeal provisions in 310 CMR 9.17 shall apply to proceedings under 310 CMR 9.30; provided, however, that if the Department determines that an application submitted for a permit under 310 CMR 9.30 is not eligible for permitting as a Test Project pursuant to 310 CMR 9.30, the applicant shall seek authorization for the proposed project in accordance with the applicable permit or licensing procedures set forth in 310 CMR 9.11 through 9.27 and the performance standards set forth in 310 CMR 9.32 through 9.55 in lieu of requesting an adjudicatory hearing.