980 C.M.R. 17.02 – Constructive Approval Procedure

(1) Procedural Assessment. At least 60 days before the applicable deadline established by 980 CMR 13.02(4)(a): Review Timeframe, the Presiding Officer shall assess the progress of the proceeding to determine whether there is reasonable assurance that the Board will issue a Consolidated Permit or Consolidated State Permit by the applicable deadline. The Presiding Officer may conduct a status conference to inform their assessment of progress of the proceeding.
(2) Notice of Likelihood of Constructive Approval. If the Presiding Officer does not find reasonable assurance that the Board will meet its deadline to issue a Final Decision, the Presiding Officer shall, at least 60 days before the applicable deadline, prepare and issue to the Parties, Limited Participants, Permit Enforcement Agencies, and the Board a Notice of Likelihood of Constructive Approval that references 980 CMR 17.02, states that a Constructive Approval is likely, and describes the reasons for that assessment.
(3) Issuance of Draft Constructive Approval. Within two weeks after the issuance of the Notice of Likelihood of Constructive Approval, the Applicant shall prepare and circulate the draft Constructive Approval to the service list prepared by the Presiding Officer for the proceeding pursuant to 980 CMR 1.03(3): Service to Board, Parties, and Participants, and any additional Permit Enforcement Agencies (PEAs) not included on the service list.
1. (a) Form of Draft Constructive Approval. The draft Constructive Approval shall comply with the requirements of 980 CMR 17.03, except that the document will be titled “draft Constructive Approval” and will be marked “DRAFT” on all pages.
2. (b) Draft Constructive Approval. The draft Constructive Approval prepared by the Applicant shall consist of:
  1. 1. the Application at the time of the Completeness Determination, and updates to the Project filed pursuant to 980 CMR 13.07(1)(c): Updated Filing, and
  2. 2. the Recommended Permit Conditions and Requirements issued by the Presiding Officer pursuant to 980 CMR 13.07(6): Conditions Conference, that are consistent with:
    1. a. the record evidence in the proceeding;
    2. b. the Board’s statutory authority, and
    3. c. the Board’s applicable rules, regulations, and other authority as provided in 980 CMR 2.02(3): Scope of Review. The Applicant may include a modification of a condition included in the Recommended Permit Conditions and Requirements issued by the Presiding Officer pursuant to 980 CMR 13.07(6): Conditions Conference, in the draft Constructive Approval, provided the modification is consistent with:
      1. i. the record evidence in the proceeding;
      2. ii. the Board’s statutory authority, and iii the Board’s applicable rules, regulations, and other authority as provided in 980 CMR 2.02(3): Scope of Review.
(4) Comment Period and Opportunity for Revision.
1. (a) The Presiding Officer shall designate a comment period, extending at least seven days and not more than 14 days, from the issuance of the draft Constructive Approval. During that time, the recipients of the draft Constructive Approval may file written comments regarding the draft to ensure compliance with 980 CMR 17.03.
2. (b) Within seven days after the conclusion of the comment period, the Applicant shall update the draft Constructive Approval to include revisions that are consistent with:
  1. 1. the record evidence in the proceeding;
  2. 2. the Board’s statutory authority, and
  3. 3. the Board’s applicable rules, regulations, and other authority as provided in 980 CMR 2.02(3): Scope of Review, and circulate it to the service list.
3. (c) Within seven days thereafter, the Presiding Officer may modify the updated draft Constructive Approval prepared by the Applicant if and to the extent that the draft Constructive Approval, as modified by the Applicant following the comment period held pursuant to 980 CMR 17.02(4)(a), is inconsistent with:
  1. 1. the record evidence in the proceeding;
  2. 2. the Board’s statutory authority, or
  3. 3. the Board’s applicable rules, regulations, and other authority as provided in 980 CMR 2.02(3): Scope of Review. The Presiding Officer shall explain any modifications and ensure compliance with 980 CMR 17.03.
4. (d) The draft Constructive Approval as updated by the Presiding Officer pursuant to 980 CMR 17.02(4) shall be issued as a final Constructive Approval consistent with 980 CMR 17.04.
(5) If the Presiding Officer issues the Notice of Likelihood of Constructive Approval prior to the Conditions Conference and the issuance of the Presiding Officer Recommended Permit Conditions and Requirements, then the Presiding Officer may schedule a Conditions Conference earlier than specified in 980 CMR 13.07(6): Conditions Conference. The Presiding Officer shall issue Recommended Permit Conditions and Requirements. The parties shall have an opportunity to comment on the Recommended Permit Conditions and Requirements consistent with 980 CMR 13.07(3): Adjudicatory Proceeding. The process for the draft Constructive Approval shall be consistent with 980 CMR 17.02(3) and the Comment Period and Opportunity for Revision shall be consistent with 980 CMR 17.02(4).
(6) If the Presiding Officer fails to act regarding any provision of 980 CMR 17.00 in the timeframe provided, the Presiding Officer will have an additional seven days in which to perform the missed procedural step. If the Presiding Officer does not complete the missed procedural step by the end of the additional seven days, the next procedural step required in 980 CMR 17.00 shall commence regardless. In no event shall such action exceed the procedural timeframe for Constructive Approval set forth in 980 CMR 13.02(4)(a): Review Timeframe.
(7) Continuing Right to Issue a Decision on a Consolidated Permit or Consolidated State Permit. The Presiding Officer Notice of Likelihood of Constructive Approval shall not prohibit the Board from issuing a Final Decision pursuant to 980 CMR 13.10: EFSB Consolidated Permit Decisions, on an EFSB Consolidated Permit prior to the applicable statutory review timeframe pursuant to 980 CMR 13.02(4)(a): Review Timeframe.