4.02: Air Quality, Odor and Emissions

1. Overview: The intent 974 CMR 4.02 is to preclude or significantly mitigate conditions that could cause nuisance impacts to area residents and businesses or other users within Devens.

   While it is the overriding intent of 974 CMR 4.02 to provide a local complaint mechanism in regard to air quality, odors and emissions, it is also recognized that many businesses at Devens will be required to obtain a Massachusetts Department of Environmental Protection (MADEP) air quality permit, due to the pre-emptive or higher jurisdictional structure of the Commonwealth, when something is explicitly regulated. This is also in acknowledgement of the stringency of Massachusetts air quality laws and regulations (310 CMR, sections 6-8 inclusive). It is anticipated that this circumstance will preclude many potential difficulties in this area of impact. For more detail, refer to 974 CMR 4.02(2).

   For the preceding reasons, there shall be two distinct courses of action for the DEC to follow, in regard to addressing complaints in this area of impact and enforcing resolution of them:

   (a) Case One -- Where a MADEP air quality permit has been issued.

   (b) Case Two -- Where a MADEP air quality permit has not been issued.

2. Complaint & Enforcement Process
   (a) In cases where a MADEP permit has already been issued and a complaint filed against that user, the process shall be as follows. The Building Inspector or other duly authorized DEC official shall investigate the complaint and determine that the possible violator does possess a MADEP permit. When this fact has been ascertained, the inspection official shall then determine, to the best of his or her knowledge, and in consultation with MADEP, if the potential violator is in likely violation of the MADEP permit and shall then inform MADEP of the likely violation. Once this process has occurred, MADEP enforcement shall be sought by the DEC inspection official.

   (b) In cases where a MADEP permit has not been issued previously, the DEC inspection official shall respond to the complaint and investigate the validity of the alleged nuisance being attributed to the potential violator. Then, the DEC inspection official shall determine, to the best of his or her knowledge, and in consultation with MADEP, if a state permit is required and shall refer the case to the Commonwealth in such instances. If it is determined that a MADEP permit is not required, or if one is needed but not yet obtained, then appropriate mitigation measures may then be established at the local DEC level, as a means of controlling nuisance conditions.

   (c) In instances where a MADEP permit is not involved and mitigations will be established by DEC officials, the process shall be as follows. Potential violators will be given thirty (30) days in which to respond to a complaint or otherwise provide reasonable confirmation to the DEC inspection official, that the problem did not exist or has been eliminated. If probable cause is determined, a second thirty (30) day time period will be granted in which to correct the interference or to demonstrate that good faith efforts have been initiated to correct the objectionable circumstances. If such efforts are not initiated, the violator may be subject to remedies in the Devens By-Laws, including levying or fines, requirements to post performance guarantees, permit reconsideration by the DEC, or legal action. Emergency nuisance conditions may, at the discretion of the DEC inspection official, require more expeditious remediation.

3. Air Quality Standards. No party owning, leasing, or otherwise controlling a potential source of air emissions within Devens may at any time exceed the air quality, odor, and emissions standards established in the 310 CMR 6.00 through 8.00 [Massachusetts Department of Environmental Protection (MADEP)]. Specifically, the DEC shall have the authority to review any use, person, or activity operating within Devens with regard to the following concerns:
   (a) Visible emissions

   (b) Open burning

   (c) Dust, odor, construction, and demolition

4. Internal Impacts. No party owning, leasing, or otherwise controlling a potential source of odor within Devens shall permit emissions therefrom which cause or contribute to a condition of air pollution within Devens.

5. External Impacts. No party owning, leasing, or otherwise controlling a potential source of odor within Devens shall permit emissions therefrom which cause or contribute to a condition of air pollution beyond the perimeter boundary of Devens.