| 310 CMR 16.00:
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SITE ASSIGNMENT REGULATIONS FOR SOLID WASTE FACILITIES
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This version of 310 CMR 16.00 was modified June 2001 to reflect current changes effective 6/8/01
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This copy of the Site Assigment Regulations for Solid Waste Facilities, 310 CMR 16.00 is not an "Official Version" of the regulations. In particular, it lacks page numbers and the effective dates at the bottom of each page. Other unexpected differences may also be present. This HTML version is offered as a convenience to our users and DEP believes that the body of the text is a faithful copy of the regulations. If you REALLY, ABSOLUTELY, MUST know that the version you have is correct and up-to-date, then you must purchase the document through the State Bookstore (at http://www.state.ma.us/sec/spr/spridx.htm). The official versions of all state statutes and regulations are only available through the State Bookstore. | Section
PART 1: PROCEDURES FOR SUBMISSION AND REVIEW OF SITE ASSIGNMENT APPLICATIONS
16.01: Purpose and Authority
16.02: Definitions
16.03: Time
16.04: Severability
16.05: Applicability
16.06: Prohibitions
16.07: Certification
16.08: Submission Requirements
16.09: Public Access to Application
16.10: Review of Application for Completeness
16.11: Review Period
16.13: Department Report On Suitability (Report)
16.14: Reconsideration of Findings
16.15: Further Action on Application
16.16: Requests for Technical Assistance from the Department
16.17: Application Review by the Department of Public Health
16.18: Waiver
PART II: BOARD OF HEALTH PUBLIC HEARINGS
16.20: Public Hearing Rules
16.21: Alternative Use of Site Assigned for a Specific Purpose
PART III: APPLICATION FEE
16.30: Fees
PART IV: SITE SUITABILITY CRITERIA
16.40: Site Suitability Criteria
16.99: APPENDIX A
16.01: Purpose and Authority
(1) Purpose. 310 CMR 16.00 is composed of four Parts pertaining to the process for deciding whether a parcel of land is suitable to serve as the site for a solid waste management facility. The first Part describes the procedures for submitting an application to the Department and the board of health for site assignment and sets forth the review process used by the Department in determining whether a site is suitable. Part I is intended to provide for the complete submission of information necessary for determining site suitability and for extensive opportunity for public comment within a relatively short review period. The second Part sets forth rules governing the Public Hearings to be held by the board of health for the purpose of assigning a site. The third Part sets forth the process by which the board of health assesses the Application Fee and the allowed expenditures of those funds for reviewing the application and conducting the public hearings. The final Part establishes the site suitability criteria that are to be applied by the Department and the board of health in determining whether a site is suitable. Part IV is intended to make the siting of facilities subject to consistent standards and provide for the protection of public health and safety and the environment. Protection of public health, safety and the environment is primarily the prevention of pollution from the site, but also encompasses the function of the site within an integrated solid waste management system which maximizes material reuse and conservation of natural resources.
(2) Authority. 310 CMR 16.00 is promulgated by the Department of Environmental Protection pursuant to M.G.L. c. 21A, ?? 2 and 8 and c. 111, ?? 150A and 150A?.
16.02: Definitions
The following words when used herein, except as otherwise required by the context, shall have the following meaning:
Abutter means the owner of land sharing a common boundary or corner with the site of the proposed activity in any direction, including, but not limited to, land located directly across a street, way, creek, river, stream, brook or canal.
Adjacent Area means a parcel of land contiguous to a site or in close enough proximity to be directly impacted by water, air or soil borne pollutants, not exceeding a ? mile radius from the site.
Adverse Impact means an injurious impact which is significant in relation to the public health, safety, or environmental interest being protected.
Agricultural Waste means discarded organic materials produced from the raising of plants and animals as part of agronomic, horticultural or silvicultural operations, including, but not limited to, animal manure, bedding materials, plant stalks, leaves, other vegetative matter and discarded by-products from the on-farm processing of fruits and vegetables.
Applicant means the person named in the application as the owner of a property interest in the site or the operator of the proposed facility where the owner has entered into an agreement with an operator at the time the application is filed.
Area of Critical Environmental Concern (ACEC) means an area designated by the Secretary of the Executive Office of Environmental Affairs pursuant to 301 CMR 12.00: Areas of Critical Environmental Concern.
Asphalt Pavement, Brick, and Concrete Rubble means rubble that contains only weathered (cured) asphalt pavement, clay bricks and attached mortar normally used in construction, or concrete that may contain rebar. The rubble shall be clean and not painted, coated or impregnated with any substance. The rubble shall not be mixed with or contaminated by any other wastes or debris.
Backyard Composting means the composting of organic solid waste, such as grass clippings, leaves or brush generated by a homeowner or tenant of a single or multi-family residential unit or an apartment complex unit, where composting occurs at that dwelling place.
Cathode Ray Tube, CRT or Intact CRT means an intact glass tube used to provide the visual display in televisions, computer monitors, oscilloscopes and similar scientific equipment, but does not include the other components of an electronic product containing a CRT even if the product and the CRT are disassembled.
Combustion Facility means a facility employing an enclosed system using controlled flame combustion, the primary purpose of which is to thermally break down solid wastes, producing ash that contains little or no combustible materials.
Commissioner means the Commissioner of the Department of Environmental Protection or his or her designee.
Compostable Material means an organic material, excluding waste water treatment residuals, that has the potential to be composted, which is pre-sorted and not contaminated by significant amounts of toxic substances.
Composting means a process of accelerated biodegradation and stabilization of organic material under controlled conditions yielding a product which can safely be used.
Construction and Demolition Waste means the waste building materials and rubble resulting from the construction, remodeling, repair or demolition of buildings, pavements, roads or other structures. Construction and demolition waste includes but is not limited to, concrete, bricks, lumber, masonry, road paving materials, rebar and plaster.
CRT Operation means an area or works other than a household that is used for the collection, storage, transfer, containment, or handling of Non-commodity CRTs. The CRT Operation is the place where the determination of whether a CRT is a Non-commodity CRT is made.1
Department means the Department of Environmental Protection.
Department Report on Suitability means the report issued by the Department pursuant to M.G.L. c. 111, ? 150A, stating whether a site proposed for a solid waste management facility in an application for a site assignment is suitable.
Disposal means the final dumping, landfilling or placement of solid waste into or on any land or water or the incineration of solid waste.
Disposal Facility means any solid waste combustion facility rated by the Department at more than one ton per hour or any landfill.
Downgradient means:
(a) in reference to surface water, the direction perpendicular to lines of equal elevation over a distance in which elevation continuously decreases, measured from the point or area in question; or
(b) in reference to groundwater, the direction perpendicular to lines of equipotential over a distance in which total head continuously decreases, measured from the point or area in question.
Existing Public Water Supply see Public Water Supply.
Expand a Site means to move a solid waste facility's operation to a previously unassigned site that is contiguous to the original site or to modify a solid waste facility's operations causing it to exceed any capacity or total volume limit stated in its current site assignment.
Facility means an established site or works, and other appurtenances thereto, which is, has been or will be used for the handling, storage, transfer, processing, treatment or disposal of solid waste including all land, structures and improvements which are directly related to solid waste activities.
Food Material means source separated material produced from human food preparation and consumption activities at homes, restaurants, cafeterias, or dining halls which consists of fruits, vegetables and grains, fish and animal products and byproducts, and soiled paper unsuitable for recycling.
Handling Area means an area used for the transfer, storage, processing or treatment of solid waste, excluding weigh stations or access roads.
Handling Facility means any facility that is not a disposal facility, for example transfer stations, storage facilities and other facilities used primarily for the storage, processing or treatment of solid waste. ("Handling facility" includes recycling facilities and composting facilities that are required to obtain a site assignment pursuant to 310 CMR 16.05)
Infectious waste means "Infectious Waste or Physically Dangerous Medical or Biological Waste" as defined in 105 CMR 480.000, Department of Public Health, State Sanitary Code and includes: blood and blood products; pathological waste; cultures and stocks of infectious agents and associated biologicals; contaminated animal carcasses, body parts and bedding; sharps; and biotechnological by-product effluents.
Interim Wellhead Protection Area (IWPA) means that wellhead area established under 310 CMR 22.02: Drinking Water.
Land Actively Devoted to Agricultural or Horticultural Uses means that land as defined at M.G.L. c. 61A, ? 3.
Landfill means a facility or part of a facility established in accordance with a valid site assignment for the disposal of solid waste into or on land.
New Site means a parcel of land for which an applicant seeks site assignment as a solid waste facility which has not been previously assigned and is not contiguous to an existing site assigned area.
Non-commodity CRT means a CRT that has been determined will not be returned to service as an operable CRT, and has not been disposed.2 CRTs that are disposed of intact, and CRTs that are crushed or ground up (excluding monochrome CRTs) are subject to 310 CMR 30.000.
1 The implication is that an operation only handling commodity CRTs is not a CRT Operation. Thus, a charity that accepts CRTs for resale is not regulated if it doesn't make the determination that a CRT is not a commodity CRT, but rather leaves that determination to its transferees.
2 The implication is that all CRTs are recyclable once they are determined not to be commodities as operable CRTs, but it takes an affirmative determination for a CRT to convert from a commodity. Note: The hazardous waste regulations do not apply to households.
Non-Potential Drinking Water Source Area means that area defined by 310 CMR 40.0006: Massachusetts Contingency Plan.
Operator means any person who has care, charge or control of a facility subject to 310 CMR 16.00, including without limitation, an agent, lessee of the owner or an independent contractor.
Perennial Water Course means a stream or river that flows year round.
Person(s) means any individual, partnership, association, firm, company, corporation, department, agency, group, public body (including a city, town, district, county, authority, state, federal, or other governmental unit) or any other entity responsible in any way for an activity subject to 310 CMR 16.00, but not including an agency of the Commonwealth.
Pollution shall have the same meaning as in 310 CMR 19.006: Solid Waste Management.
Post-Consumer Recyclables means the following materials which have served their intended end use and have been pre-sorted:
(a) containers, films and wraps and other forms of packaging made from metal, glass, plastic or paper; and
(b) newspaper, office paper, cardboard and other grades of paper.
Potential Private Water Supply means a Class I aquifier as defined at 314 CMR 6.03: Ground Water Quality Standards, as may be amended, capable of yielding water of sufficient quality and quantity which is located under a parcel of land that at the time of the earlier of the following two filings, the Site Assignment Application or, where applicable, the Massachusetts Environmental Policy Act Environmental Notification Form, is:
(a) zoned residential or commercial;
(b) not served by a public water supply; and
(c) subject to a subdivision plan or a building permit application approved by the appropriate municipal authority.
Potential Public Water Supply means a drinking water source which, at the time of the earlier of the following two filings, the Site Assignment Application, or where applicable, the Massachusetts Environmental Policy Act Environmental Notification Form, has been determined to be capable of yielding water of sufficient quality and quantity for future development as a public water supply, and either:
(a) has been designated and received Departmental approval under the "Guidelines and Policies for Public Water Systems", as amended; or
(b) has had the necessary documentation submitted on its behalf for determination as a Potential Public Water Supply as defined by the Department's Division of Water Supply.
Potentially Productive Aquifer means:
(a) all aquifers delineated by the U.S. Geological Survey (USGS) as a high or medium yield aquifer; and
(b) all aquifers located east of the Cape Cod Canal (Cape Cod), on the Elizabeth Islands, on Martha's Vineyard, or on Nantucket.
Pre-Sort means to segregate a material for reuse, recycling or composting by preventing the material from being commingled with solid waste at the point of generation or to separate and recover the material from solid waste at a processing facility. Pre-sorting does not require the recovery or separation of non-recyclable components that are integral to a recyclable product (e.g. insulation or electronic components in white goods).
Private Water Supply means a well used as a source of drinking water supplying a non-public water system with any volume of groundwater from any source.
Processing means the use of any method, technique or process to reduce the volume or alter the physical characteristics of solid waste or recyclable or compostable materials through any means, including, without limitation, separating, baling, shredding, crushing or reworking.
Proposed Drinking Water Source Area means the preliminary Zone II or the preliminary IWPA for a proposed water supply well that has received a site exam approval by the Department and is actively pursuing source approval under the Drinking Water Regulations at 310 CMR 22.21(1), Source Approval.
Public Water Supply means a source of drinking water supplying a public water system as defined in 310 CMR 22.00, as may be amended.
Recyclable or Recyclable Material means a material that has the potential to be recycled and which is pre-sorted and not contaminated by significant amounts of toxic substances.
Recycle means to recover materials or by-products which are:
(a) reused; or
(b) used as an ingredient or a feedstock in an industrial or manufacturing process to make a marketable product; or
(c) used in a particular function or application as an effective substitute for a commercial product or commodity. "Recycle" does not mean to recover energy from the combustion of a material.
Recycling Drop-Off Center means a location where pre-sorted post-consumer recyclables are deposited by the generators of the recyclables for collection and transfer to a facility for processing or directly to a market.
Regional Disposal Facility means a solid waste facility that is a member of a regional disposal district established in accordance with M.G.L. c. 40, ? 44K, or a solid waste facility that receives substantial quantities of solid waste on a regular basis from two or more municipalities.
Residue means all solid waste remaining after treatment or processing and includes, without limitation, ash, material which is processed for recycling or composting but is unmarketable or speculatively accumulated due to its inferior quality and other solid waste which is not recovered. Non-recyclable material which is integral to a pre-sorted recyclable product shall not constitute residue for the purpose of calculating residue generation rates.
Restricted Area means an area specified in 310 CMR 16.40(3) and (4) from which a solid waste management facility is excluded.
Review Period means the 60 day period during which the Department shall review the Site Assignment Application and issue the Department report.
Riverfront Area means that area defined by 310 CMR 10.00: Wetlands Protection.
Site Assignment means a determination by a board of health or by the Department as specified in M.G.L. c. 111, ? 150A which:
(a) designates an area of land for one or more solid waste uses subject to conditions with respect to the extent, character and nature of the facility that may be imposed by the assigning agency after a public hearing in accordance with M.G.L. c.111, ? 150A; or (b) establishes that an area of land was utilized as a site for the disposal onto land of solid waste or as a site for a refuse disposal incinerator prior to July 25, 1955. The area of land site assigned under 310 CMR 16.02: Site Assignment shall be limited to the lateral limits of the waste deposition area ("the footprint"), or the area occupied by the incinerator, as they existed on July 25, 1955, except as otherwise approved by the Department in approved plans. Said assignment shall apply only to uninterrupted solid waste disposal activities within the footprint or plan-approved area and shall have no legal force or effect at any time after the cessation of disposal activities except as otherwise provided at 310 CMR 16.21.
Sludge means the accumulated solids and/or semisolids deposited or removed by the processing and/or treatment of gasses, water or other fluids.
Sole Source Aquifer means an aquifer so designated by the U.S. Environmental Protection Agency, or by the Department under the authority of a state program as may be established, that supplies 50% or more of the drinking water for the aquifer service area, and the volume of water which could be supplied by alternative sources is insufficient to replace the petitioned aquifer should it become contaminated.
Solid Waste or Waste means useless, unwanted or discarded solid, liquid or contained gaseous material resulting from industrial, commercial, mining, agricultural, municipal or household activities that is abandoned by being disposed or incinerated or is stored, treated or transferred pending such disposal, incineration or other treatment, but does not include:
(a) hazardous wastes as defined and regulated pursuant to 310 CMR 30.000; (b) sludge or septage which is land applied in compliance with 310 CMR 32.00; (c) waste-water treatment facility residuals and sludge ash from either publicly or privately owned waste-water treatment facilities that treat only sewage, which is treated and/or disposed at a site regulated pursuant to M.G.L. c. 83, ?? 6 & 7 and/or M.G.L. c. 21, ?? 26 through 53 and the regulations promulgated thereunder, unless the waste-water treatment residuals and/or sludge ash are co-disposed with solid waste; (d) septage and sewage as defined and regulated pursuant to 314 CMR 5.00, as may be amended, and regulated pursuant to either M.G.L. c. 21, ?? 26 through 53 or 310 CMR 15.00, as may be amended, provided that 310 CMR 16.00 does apply to solid waste management facilities which co-dispose septage and sewage with solid waste; (e) ash produced from the combustion of coal when reused as prescribed pursuant to M.G.L. c. 111, ? 150A; (f) solid or dissolved materials in irrigation return flows; (g) source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended; (h) those materials and by-products generated from and reused within an original manufacturing process; and (i) compostable or recyclable materials when composted or recycled in an operation not required to be assigned pursuant to 310 CMR 16.05(2) through (6).
Solid Waste Management Facility (see "Facility")
Speculative Accumulation means the accumulation or storage of a recyclable or compostable material where the recycling or composting of the material is not occurring or cannot reasonably be expected to occur in the future. Any recyclable or compostable material that is speculatively accumulated is deemed to be a solid waste. Speculative accumulation arises when:
(a) it is not feasible to recycle or compost the material; or
(b) less than 75% by weight or volume, as appropriate, of the recyclable or compostable material is recycled or composted or transferred off-site for recycling or composting within a time frame to be determined by the Department.
Storage means the temporary containment of solid waste or compostable or recyclable materials in a manner which does not constitute disposal.
Storage Facility means a handling facility where solid waste is temporarily stored in a manner not constituting disposal.
Suitable means a determination by the Department that a proposed site meets the Site Suitability Criteria as set forth in 310 CMR 16.00.
Transfer Station means a handling facility where solid waste is brought, stored and transferred from one vehicle or container to another vehicle or container for transport off-site to a solid waste treatment, processing or disposal facility.
Treatment means the use of any method, technique or process to change the chemical, or biological character or composition of any solid waste; to neutralize such waste; to render such waste safer to transport, store or dispose; or make such waste amenable to recovery, storage or volume reduction.
Upgradient means:
(a) in reference to surface water, the direction perpendicular to lines of equal elevation over a distance in which elevation continuously increases, measured from the point or area in question; or
(b) in reference to groundwater, the direction perpendicular to lines of equipotential over a distance in which total head continuously increases, measured from the point or area in question.
Vegetative Material means source-separated material which consists solely of vegetative waste such as fruits, vegetables and grains, that is produced from food preparation activities at, but not limited to: grocery stores; fruit or vegetable canning; freezing or preserving operations; and food or beverage processing establishments.
Watershed means that area defined by 310 CMR 22.02, Drinking Water.
Wood Waste means discarded material consisting of trees, stumps and brush, including but not limited to sawdust, chips, shavings and bark. Wood waste does not include new or used lumber or wood from construction and demolition waste and does not include wood pieces or particles containing or likely to contain asbestos, or chemical preservatives such as creosote or pentachlorophenol, or paints, stains or other coatings.
Yard Waste means deciduous and coniferous seasonal deposition (e.g., leaves), grass clippings, weeds, hedge clippings, garden materials and brush.
Zone A means that area defined by 310 CMR 22.02, Drinking Water.
Zone B means that area defined by 310 CMR 22.02, Drinking Water.
Zone C means that area defined by 310 CMR 22.02, Drinking Water.
Zone of Contribution means the recharge area that provides water to a well.
Zone I means that area defined by 310 CMR 22.02, Drinking Water.
Zone II means that area defined by 310 CMR 22.02, Drinking Water.
16.03 Time
(1) Computation of Time. Unless otherwise specifically provided by law, 310 CMR 16.00, and any determination issued pursuant to 310 CMR 16.00, any time period prescribed or referred to in 310 CMR 16.00 shall begin with the first day following the act which initiates the running of the time period, and shall include every calendar day, including the last day of the time period so computed. If the last day is a Saturday, Sunday, legal holiday, or any other day in which the Department's offices are closed, the time period shall run until the end of the next business day. If the time period prescribed or referred to is six days or less, only days when the offices of the Department are open shall be included in the computation.
(2) Timely Filing. Papers required or permitted to be filed under 310 CMR 16.00, or any provision of the applicable law must be filed at the board of health office or such other place as the board of health, Department or 310 CMR 16.00 shall designate within the time limits for such filings as set by 310 CMR 16.00. Papers filed in the following manner shall be deemed to be filed as set forth herein:
(a) hand-delivery during business hours shall be deemed filed on the day delivered;
(b) hand-delivered during non-business hours shall be deemed filed on the next regular business day; and
(c) mailing by placing in U.S. mail shall be deemed filed on the date so postmarked. (3) All papers shall show the date received by the board of health and the Department, and the board of health and the Department shall cooperate in giving date receipts to Persons filing papers by hand-delivery.
16.04: Severability
It is hereby declared the provisions of 310 CMR 16.00 are severable, and if any provision hereof or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions of 310 CMR 16.00, and the application thereof to persons or circumstances which can be given effect without the invalid provision or application.
16.05: Applicability
(1) General. 310 CMR 16.00 shall govern the process of application, review, public hearing and decision for a site assignment to expand a solid waste management facility or establish a new solid waste management facility at an unassigned site.
(2) Facilities and Operations to Which 310 CMR 16.00 Does Not Apply. 310 CMR 16.00 does not apply to the following facilities or operations:
(a) Hazardous Waste Facilites. Facilities that manage hazardous wastes which are regulated pursuant to 310 CMR 30.000; (b) Waste Water Treatment Residuals Facilities. Facilities which manage waste-water treatment plant residuals subject to the siting process pursuant to M.G.L. c. 83, ? 6 and regulated pursuant to 314 CMR 12.00, provided that 310 CMR 16.00 does apply to solid waste management facilities which co-dispose waste-water treatment plant residuals with solid waste; (c) Small Combustion Facilities. Solid waste combustion facilities that are rated by the Department at one ton per hour or less pursuant to M.G.L. c. 111, ? 150A; (d) Farming Operations. The use or application of agricultural manures in normal farming operations. (e) Solid Waste Storage Containers. Dumpsters, roll-offs, or other temporary storage containers located at, and used exclusively for the collection of solid waste generated by an apartment house or complex, condominium association, school, recreational areas, industrial or commercial establishment, office, individual residence or farm, construction site or demolition site, other than a CRT Operation; (f) Manufacturing and Industrial Operations. The following classes of manufacturing or industrial operations which temporarily store and/or utilize pre-sorted recyclable materials in the manufacturing or industrial process, including:
1. paper mills, including de-inking plants and paperboard manufacturers;
2. steel mills;
3. aluminum smelting operations and mills;
4. glass manufacturing plants;
5. plastic manufacturing plants;
6. tire re-capping plants;
7. de-tinning plants;
8. asphalt batching plants;
(3) Conditionally Exempt Recycling Operations. The following recycling operations or activities do not require a site assignment provided the operation incorporates good management practice, is carried out in a manner that prevents an unpermitted discharge of pollutants to air, water or other natural resources of the Commonwealth and results in no public nuisance:
(a) Recycling Drop-Off Centers. Recycling drop-off centers. (b) Bottle Bill Handling Operations. Operations which collect, store, and process only beverage containers subject to the provisions of M.G.L. c. 94, ?? 321 through 326. (c) Paper Baling and Handling. Baling and handling operations that process only recyclable paper (includes all grades of paper and paperboard). (d) Recycling Operations. Operations processing, transferring or temporarily storing recyclables, but not including operations which recycle construction and demolition debris or special wastes, which comply with the following additional conditions:
1. the operation receives only recyclable material pre-sorted by the original generator;
2. the operation receives no more than 100 tons per day (tpd) of recyclable materials, including incidental solid waste, but not including paper;
3. the operation receives, handles and stores recyclable materials, incidental solid waste and residues only within an enclosed handling area or adequately covered containers or trucks;
4. the amount of residue generated by a processing operation does not average more than 15% of the weight of the recyclables processed during any quarter.
5. there is no speculative accumulation of any material. For purposes of 310 CMR 16.05, speculative accumulation shall be presumed to occur if materials, whether in their as-received, in-process or processed condition, are stored for more than 90 days from the date of their receipt at the recycling operation. This time limit may be exceeded in the case of storage of a processed material pending accumulation of a transportable load (one full truck load).
6. accurate records are maintained and certified reports are submitted every 90 days for the first year of operation and once a year thereafter which provide information to enable the Department to determine that the operation has complied with the conditions set forth at 310 CMR 16.05(3)(d)1. through 5. (Reports shall be filed with the appropriate Department regional office and with the board of health); and
7. at least 30 days prior to commencement of operations, the operator, on a form as may be supplied by the Department, notifies the Department and the board of health of the intent to operate. (e) Asphalt Pavement, Brick and Concrete Recycling Operations. An asphalt pavement, brick or concrete rubble processing (crushing) operation when:
1. the operation is located at:
a. an active quarry or active sand and gravel pit where any asphalt pavement, brick and concrete rubble transported to the site of the operation is pre-sorted so it contains only asphalt pavement, brick or concrete rubble; or
b. the site of a demolition/construction project where all the asphalt pavement, brick and concrete rubble processed is generated at the site; 2. the rubble consists solely of asphalt pavement, brick and concrete that is clean and not mixed with or contaminated by any other wastes or debris; 3. the asphalt pavement, brick and concrete rubble is processed so the maximum length of the largest dimension of any piece of rubble is less than six inches; 4. all rebar is removed in the process and is recycled or disposed in an approved facility; 5. there is no speculative accumulation of the asphalt pavement, brick and concrete rubble or rebar prior to or after crushing and accurate records are maintained that are adequate for the Department to determine whether speculative accumulation is occurring; and 6. at least 30 days prior to commencement of operations, the operator notifies the Department and the board of health using a form as may be supplied by the Department. (f) CRT Operations. A CRT Operation, provided that the CRT Operation and its operator comply with the following additional conditions:
1. The CRT Operation and its operator shall collect, store, handle and transport CRTs in a manner that prevents and minimizes breakage, and shall immediately contain all releases resulting from inadvertent breakage of CRTs, clean up any broken material and safely package any broken material in containers resistant to puncture by glass pieces; 2. The CRT Operation and its operator shall store and maintain CRTs segregated from any solid waste; 33. When shipping a Non-commodity CRT to foreign countries, a CRT Operation and its operator shall meet the requirements at 310 CMR 30.1039; 4. A CRT Operation and its operator shall transfer Non-commodity CRTs only to another CRT Operation, a CRT recycling facility, 4 or a permitted hazardous waste treatment, storage and disposal facility; 5. A CRT Operation and its operator shall label Non-commodity CRTs as follows: "Non-commodity Cathode Ray Tubes" or "Non-commodity CRTs;" 6. A CRT Operation and its operator shall hold a CRT for no longer than one year from its date of receipt. A CRT stored for more than one year shall be presumed to be a Non-commodity CRT. Such presumption may be rebutted if the operator has documentation demonstrating that the CRT is intended to be returned to service as an operable CRT. A CRT Operation and its operator may store CRTs for longer than one year from the date of receipt solely for the purpose of accumulating such quantity of CRTs as is necessary to facilitate proper shipment ( e.g. economically viable load), recovery, treatment or disposal. A CRT Operation and its operator bear the burden of demonstrating the need for any such additional period of accumulation. 7. If a CRT Operation accumulates more than 40 tons of Non-commodity CRTs on-site for more than 21 calendar days, then the CRT Operation and its operator shall:
a. Notify the Department in writing of their activity within ten days of the first occurrence. Once the threshold is exceeded during a calendar year, an Operation shall retain its regulated status under this provision for the remainder of the calendar year. A CRT Operation who has not already notified the Department of its CRT activities and anticipates accumulating 40 tons or more of Non-commodity CRTs shall send written notification to the Department, before meeting or exceeding the 40 ton/21 day limit;
b. Maintain records of incoming and outgoing CRTs, including from where each shipment was received and where each shipment was sent;
c. Maintain a system that demonstrates the duration of CRT accumulation; and
d. Maintain records for three years. This period shall extend automatically for the duration of any enforcement action. 8. The CRT Operation and its operator allow DEP to enter the facility to conduct inspections. 9. A CRT Operation and its operator that violate any of the above conditions may be subject to enforcement pursuant to 310 CMR 16.05(11).
3In other words, do not put CRTs in a dumpster.
4 CRT recycling facilities include out-of-state smelters and facilities that conduct glass-to-glass recycling.
(4) Conditionally Exempt Composting Operations. The following composting operations and activities do not require a site assignment provided the operation incorporates good management practice, is carried out in a manner that prevents an unpermitted discharge of pollutants to air, water or other natural resources of the Commonwealth, and results in no public nuisance:
(a) Backyard Composting. Backyard composting. (b) Leaf Composting Operations. Operations which transfer or compost clean leaves and yard waste containing no greater than 25% grass clippings by volume provided that less than 50,000 cubic yards or less than 10,000 tons total are on site at any one time, with a maximum volume per unit area of 5,000 cubic yards per acre, and either:
1. the operation is registered with the Department; or
2. the operation is located within the property boundaries of the site where all the leaf and yard waste is generated; (c) Agricultural Waste Composting. A composting operation for agricultural wastes, when located on a farm engaged in "agriculture" or "farming" as defined in M.G.L. c. 128, ? 1A. Such composting operation may, in addition to agricultural wastes, utilize the following compostable materials, provided the operation is registered and complies with policies of the Department of Food and Agriculture:
1. leaf and yard waste;
2. wood wastes;
3. clean newspaper or cardboard;
4. clean, compostable (i.e. thin) shells, and clean bones;
5. non-agricultural sources of manures and animal bedding materials.
6. less than 20 cubic yards or less than ten tons per day of vegetative material; and
7. less than ten cubic yards or less than five tons per day of food material. (d) Composting on Industrial, Commercial or Institutional Sites or Zoos. A composting operation located at an industrial, commercial or institutional site or zoo which composts less than four cubic yards or less than two tons per week of vegetative materials, food materials or animal manures that are generated on-site; and where, at least 30 days prior to commencement of operations, the operator notifies the Department and the board of health, using a form as may be supplied by the Department. (5) Other Conditionally Exempted Operations. The following operations do not require a site assignment or a Solid Waste Management Facility Permit pursuant to 310 CMR 19.000, provided the operation incorporates good management practice, is carried out in a manner that prevents an unpermitted discharge of pollutants to air, water or other natural resources of the Commonwealth and results in no public nuisance:
(a) Temporary Storage by Public Works Departments. Dumpsters, roll-offs, or other temporary storage containers or temporary storage areas at a location controlled by a public works department such as a municipal department of public works, the Massachusetts Highway Department, Massachusetts Turnpike Authority, Metropolitan District Commission or similar government agency, when used exclusively for solid waste generated and collected by the public works department and when storage is appropriate for the type of waste (e.g., materials such as trash from roadside trash barrels are stored in dumpsters or roll-offs while materials such as street sweepings may be stored without containers); (b) Hospital and Laboratory Infectious Waste Storage Areas. Hospitals, medical laboratories and biotechnology companies which accept for storage, pending off-site treatment or disposal, infectious waste generated on-site by the hospital, medical laboratory or biotechnology company, or infectious waste generated off-site, provided:
1. the hospital, biotechnology company or laboratory has sufficient properly designed and operated infectious waste storage areas and manages all infectious waste in compliance with the Regulations for Storage and Disposal of Infectious or Physically Dangerous Medical or Biological Waste, State Sanitary Code Chapter VIII, 105 CMR 480.000; and 2. the hospital, biotechnology company or medical laboratory accepts and stores off-site generated infectious waste with on-site generated infectious waste only as follows:
a. Hospitals. Collects and stores infectious waste generated off-site from hospitals or clinics which the hospitals owns, or from hospitals, clinics or physicians with whom the hospital has a professional affiliation for the provision of medical services.
b. Medical Laboratories. Collects and stores infectious waste generated off-site from laboratories it operates, or generated off-site by customers to whom the laboratory provides laboratory services and only to the extent that the infectious waste collected from such customers and stored does not, on a daily basis, exceed the amount of infectious waste generated on-site from the laboratory's own laboratory activities.
c. Biotechnology Companies. Collects and stores infectious waste generated off-site from the company's biotechnology operations conducted at buildings owned or leased by the company. 3. the infectious waste storage area would not otherwise require a site assignment or solid waste management facility permit pursuant to 310 CMR 16.00 and 310 CMR 19.000, respectively. (c) Occasional Solid Waste Vehicle Layover. Sites owned or leased by a solid waste transporter for purposes of truck storage or repair where enclosed trucks, trailers and other solid waste handling and transfer equipment containing loads of solid waste are occasionally stored for overnight or weekend layover prior to transportation to a solid waste management facility, provided:
1. there is no unloading or transfer of the solid waste from the container or vehicle to the ground or to another container or vehicle; and
2. the zoning of the truck storage or repair site would not disallow such an activity or use. (d) Residential Disposal of Wood Wastes. Disposal of wood wastes at an existing single family residence or farm where the wood wastes are generated and disposed within the boundaries of such residence or farm by the occupant or resident of that residence or farm. ( i.e., wood wastes generated by a developer while clearing land prior to constructing the residence are not covered by this exemption.) (e) Wood Chipping and Shredding Operations. Wood chipping and wood shredding operations when:
1. only brush, stumps, lumber ends and trimmings, wood pallets, bark, wood chips, shavings, slash and other clean wood, which are not mixed with other solid wastes, are processed;
2. no wood containing or likely to contain asbestos, glues, or chemical preservatives such as creosote, pentachlorophenol, paints, stains or other coatings is processed;
3. there is no speculative accumulation of wood or wood chips prior to or after processing. For purposes of 310 CMR 16.05(5)(e), the accumulation time period that determines if speculative accumulation is occurring shall be 90 days; and
4. at least 30 days prior to commencement of operations, the operator notifies the Department and the board of health, using a form as may supplied by the Department. (f) Occasional Non-commodity CRT Vehicle Layover5. Sites owned or leased by transporters of Non-commodity CRTs to hold Non-commodity CRTs prior to transportation to a CRT operation, a CRT recycling facility, or a permitted hazardous waste treatment, storage or disposal facility, provided that Non-commodity CRTs are held in a vehicle at the site for no longer than ten days. (g) Tire Chipping, Shredding or Other Tire Processing Operations. Tire chipping, shredding or other tire processing operations when:
1. only tires or tires with wheel rims attached, that are not mixed with other solid waste, are processed; 2. the quantity of whole tires on site does not exceed the number of tires that can be processed in a 24 hour period or 1000 tires, whichever is greater; 3. the total quantity of processed tires (tire chips, shreds or other tire derived products) at the site does not exceed 5 times the weight of tires that can be processed in a 24 hour period or the equivalent of 5000 tires, whichever is greater; 4. whole tires and processed tires are stored in buildings, covered containers or covered to prevent the infiltration of water; 5. whole tires and processed tires are stored in accordance with 310 CMR 7.00 and local fire department requirements for storing combustible material; 6. there is no speculative accumulation of tires and/or processed tires prior to or after processing. For purposes of 310 CMR 16.05(5)(f) the time period for evaluating if speculative accumulation is occurring shall be 30 days; 7. processed tires are:
a. used to make new synthetic polymers ("rubber");
b. used in accordance with a Beneficial Use Determination (310 CMR 19.060) or other approval required by the Department;
c. combusted in a facility that is not a solid waste facility in accordance with a specific air quality approval issued under 310 CMR 7.00 that approves the combustion of tires or processed tires as an alternative fuel; or
d. handled in a solid waste facility; and 8. at least 30 days prior to commencement of operation, the operator notifies the Department, the Board of Health, and the local fire department using a form as may be supplied by the Department.
5 This provision creates a conditional exemption for locations where transporters handle CRTs.
(6) Determination of Need for Site Assignment. The Department shall make a determination of need for site assignment for the following operations upon application pursuant to 310 CMR 16.05(7). These operations shall be presumed to be solid waste management facilities unless the Department issues a determination that site assignment is not required:
(a) recycling operations not exempted under 310 CMR 16.05(3) and handling only pre-sorted recyclable materials; and (b) composting operations not exempted under 310 CMR 16.05(4) and which accept the following types and amounts of materials:
1. greater than 50,000 cubic yards or 10,000 tons of leaves and yard waste on site at any time, with a maximum volume per unit area of 5,000 cubic yards per acre;
2. less than or equal to 40 cubic yards or 20 tons per day of vegetative material (including vegetative sludges);
3. less than or equal to 20 cubic yards or 10 tons per day of food material (including food sludges) or paper sludges. (c) agricultural composting operations which are not exempt under 310 CMR 16.05(4)(c). (7) Determination Process.
(a) Any person making application for a determination of need for site assignment under 310 CMR 16.05(7) shall submit an application using forms and procedures specified in 310 CMR 4.00: Timely Action Schedule and Fees Provisions to:
1. the appropriate regional office of the Department; and
2. a copy to the board of health of jurisdiction. (b) Information on Materials. The following information, where applicable for a given material, shall be provided by the applicant:
1. a general description of the recyclable or compostable material;
2. a chemical and/or physical characterization of the recyclable or compostable material where specifically required by the Department;
3. identification of the quantity, quality and sources of the recyclable or compostable material;
4. the proposed method(s) for recycling or composting the material;
5. a description of the product(s) to be made from the material or a description of the use to which the material will be put;
6. appropriate documentation that markets or uses exist for the compost, recyclable materials or products; and
7. other information or data as required by the Department. (c) Information on the Site. The application shall include the following descriptions, plans or other information, where deemed necessary by the Department:
1. a locus map indicating the location of the proposed facility; 2. a site map indicating:
a. the zoning classification of the site and adjacent areas; and
b. the location of all wetlands on and adjacent to the site; 3. site and design plans which include:
a. the location and size of all on-site storage areas for recyclable or compostable materials and products; and
b. the layout of all processing equipment, buildings, roads, run-on and run-off controls, where applicable, and other appurtenances. 4. the proposed method or methods for pre-sorting recyclable or compostable materials from other solid wastes prior to delivery to the facility; 5. a description of all processing equipment to be used at the facility (for example grinders, shredders, air classifiers, and screening equipment); 6. the quantity and quality of any wastewater to be produced and the proposed method of discharge; 7. the quantity and quality of any residues and off-specification materials generated and how and where these wastes will be disposed; and 8. other site specific information as required by the Department. (d) Criteria for Department Determination of Need. The Department shall use the following criteria to determine if a site assignment is required:
1. the application is accurate and complete; 2. the material meets the definition of a recyclable or compostable material. In determining if a material is compostable or recyclable the Department may consider, but not be limited to, the nature of any contaminants and their probable effect on products or public health, safety and the environment; 3. the material can feasibly be processed, if applicable, and recycled or composted under the proposal set forth in the application; 4. the material is pre-sorted. In determining if a material is pre-sorted the Department may consider the relative proportion of solid waste to incoming recyclable or compostable materials; 5. the quantity of residues generated through the processing of recyclable or compostable materials, including rejects, does not average more than the following percentages by weight or volume where applicable, as determined by the Department, of materials handled during any quarter:
a. 5% for the recycling of demolition debris or construction material; b. 5% for composting of leaf and yard waste; c. 15% for recycling of post-consumer recyclables; d. such other percentage for other materials as the Department may establish in order to minimize residue generation. The residue generation criteria may be modified by the Department under the following circumstances;
i. the industry average for processing materials of the same nature utilizing the best available processing equipment is different than the percentages set forth in 310 CMR 16.05(7)(d)5.a. through c. ii. the scale of the facility is sufficiently small that actual residue generation is minimal; iii. the facility is a demonstration or pilot project of fixed limited duration. 6. there will be no speculative accumulation of materials; 7. the facility will not operate as a de facto transfer station, solid waste storage facility or processing facility, for which a site assignment would be required; 8. materials and products will be handled in a manner which will not cause the development of nuisance conditions and will ensure protection of public health and safety and the environment; and 9. the proposed project can be successfully completed in compliance with all other appropriate local, state and federal rules and regulations. (e) Determinations of Need.
1. All Department decisions regarding determinations of need for site assignment for recycling or composting facilities shall be made in writing. 2. The Department shall issue a draft determination and send a copy to the applicant and board of health. 3. The Department shall accept written comments up to 21 days from the date of issuance of the draft determination. Commentors may, in their comments, request the Department to revise with conditions a draft determination or show why the facility should be required to obtain site assignment as a solid waste management facility. 4. The Department shall issue a final determination following the 21 day comment period. 5. The Department may make a determination that no site assignment is needed subject to the applicant's compliance with conditions. These conditions may include, but are not limited to:
a. requirements to ensure that only exempt recycling or composting operations are conducted on the site;
b. weighing and operational reporting requirements, including maintenance of a daily log of the quantity of materials received and shipped, estimation or weighing of materials, depending on facility size, and regular certified reports detailing operating conditions and material disposition;
c. the authority of the Department or the board of health without prior notice to periodically enter upon and inspect the site, the facility and relevant operating records to determine and compel compliance with applicable regulations and the conditions of the determination;
d. payment of penalties in accordance with the provisions of M.G.L. c. 21A, ? 16 for violation of a condition or other requirement; and
e. a termination date. (8) Violations of the Conditions of a Determination. In the event of a violation of applicable regulations or conditions established in a determination the Department may modify, suspend or revoke the determination or initiate an enforcement action in accordance with applicable statutes or regulations. Where a determination is suspended, operations shall cease until:
(a) the operator corrects the violation to the satisfaction of the Department; or
(b) the operator applies for and obtains a site assignment and solid waste management facility permit. (9) Project Modifications.
(a) The proponent shall notify the Department and the board of health of proposed changes in design or operations where:
1. the facility operator intends to recycle or compost material(s) substantially different from those materials for which the current determination was granted;
2. the design and/or operation of the facility is to be altered; or
3. the facility operator proposes to increase the volume or quantity of materials to be handled by the operation above that volume or quantity established in the current determination. (b) Where the Department determines that the change in design or operation is significant, the Department may require a revised application for determination of need be submitted to the Department, with a copy submitted to the board of health, for review. The board of health may comment within 21 days on any proposed modification. (10) Demonstration Projects for Recycling or Composting Pre-Sorted Material. The Department may approve projects to demonstrate innovative recycling or composting techniques at unassigned sites as provided below.
(a) General Conditions. The following conditions shall apply to all demonstration projects approved under 310 CMR 16.05(10):
1. The materials to be processed shall be limited to the pre-sorted recyclable or compostable materials permitted to be processed by operations set forth at 310 CMR 16.05(3) and (4); and
2. projects shall be limited to a specified time period not to exceed one year, after which time they shall terminate unless appropriate approvals are obtained. (b) Application. An application to conduct a recycling or composting demonstration project shall be submitted to the Department, the board of health and, in the case of agricultural composting, to the Department of Food and Agriculture. The application shall contain:
1. the information described at 310 CMR 16.05(7)(b) and (c) as required by the Department; 2. the proposed duration of the demonstration project; and
3. a description and schedule of interim and final reports to be submitted to the Department describing and evaluating the project. (c) Criteria for Department Determination. The Department shall consider the following criteria when determining whether to allow the demonstration project:
1. the potential for adverse impacts taking into account the recyclable and compostable materials, project location, design and operating controls, management practices and operator experience;
2. the likelihood of obtaining useful, new information in the time frame proposed for the demonstration project; and
3. the ability of the applicant to appropriately use or dispose of all project materials. (d) Department Decision. The Department shall follow the procedure described at 310 CMR 16.05(7)(e)1. through 4. when issuing its decision on whether to allow the demonstration project. (11) CRT Enforcement Provisions.
(a) General. Any failure by any person whose activities are governed by M.G.L. c.111, ? 150A and 310 CMR 16.00 to comply fully with requirements or conditions established under 310 CMR 16.00 or with the provisions of any determination or order issued pursuant to 310 CMR 16.00 shall constitute a violation of the statute and 310 CMR 16.00. Nothing in 310 CMR 16.00, or in any order issued pursuant thereto, shall be construed to limit any right of the Department to take enforcement action pursuant to any other authority. (b) Action by the Department. Whenever the Department has cause to believe that a violation has occurred, it may without limitation:
1. order the owner or operator, or any other person responsible for the violation, to cease operations until the violation is corrected to the satisfaction of the Department or such person obtains a site assignment and solid waste management facility permit;
2. order the owner or operator, or any other person responsible for the violation, to cease all illegal activity immediately or at a specified date, and to comply fully with the provisions of the statute, 310 CMR 16.00, or any determination or conditions under 310 CMR 16.00;
3. order the owner or operator, or other person responsible for the violation, to take appropriate remedial measures immediately or by a specified date to bring the site into compliance or to protect public health or safety or the environmental resources of the Commonwealth, including without limitation closure of the site;
4. rescind, suspend, revoke, or modify any determination or conditions under 310 CMR 16.00;
5. issue a notice of non-compliance or assess a civil administrative penalty pursuant to M. G.L. c. 21A, ? 16 and 310 CMR 5.00;
6. refer the matter to the Attorney General for civil or criminal action pursuant to any applicable statute; or
7. take such other action provided by 310 CMR 16.00 or other applicable statutory or regulatory authority as the Commissioner deems appropriate. (c) Right to Adjudicatory Hearing. A person who is the subject of an order issued pursuant to 310 CMR 16.05(11) shall have the right to an adjudicatory hearing on such order pursuant to 310 CMR 1.00. Any right to an adjudicatory hearing concerning assessment of a civil administrative penalty shall be determined in accordance with the provisions of 310 CMR 5.00. (d) Waiver of Right to Adjudicatory Hearing. Any person who is the subject of an order issued pursuant to 310 CMR 16.05(11) shall be deemed to have waived the right to an adjudicatory hearing unless within 21 days of the date of service of the order the Department receives a written statement setting forth the basis for the request, subject to and in compliance with the applicable provisions of 310 CMR 1.00. 16.06: Prohibitions
No place in any city or town shall be maintained or operated as a site for a facility unless such place has been assigned by the board of health or the Department, whichever is applicable, pursuant to M.G.L. c. 111, ? 150A. Any disposal of solid waste at any location not so assigned shall constitute a violation of said statute and of 310 CMR 16.00.
16.07: Certification
Any person, required by 310 CMR 16.00 or any order issued by the Department, to submit papers shall identify themselves by name, profession, and relationship to the applicant and legal interest in the proposed site, and make the following certification: "I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate and complete. I am aware that there are significant penalties both civil and criminal for submitting false information including possible fines and imprisonment."
16.08: Site Assignment Application Submission Requirements
(1) General. Any person wishing to establish a new facility at a New Site or to Expand a Site onto an area not previously assigned must file a Site Assignment Application (application) with the board of health and provide copies as specified at 310 CMR 16.08(2).
(2) Copies. The applicant shall file:
(a) two copies of the application with the local board of health;
(b) one copy of the application with the local library;
(c) two copies of the application with the Department, one to the Business Compliance Division, Boston, and one to the regional office in which the proposed site is located;
(d) one copy of the application with the Massachusetts Department of Public Health, Bureau of Environmental Health Services, Boston;
(e) one copy of the application with the board of health ("abutting board of health"), and one copy with the library of any municipality within ? mile of the proposed site assigned area;
(f) one copy of the application with the applicable regional planning agency duly established by the Legislature and governing the municipality in which the proposed facility is to be located.; and
(g) one copy of the application with any Person requesting it during the public comment period, except that the applicant may charge the reasonable cost of reproduction for the copies requested under this provision. The applicant shall maintain a list of each Person requesting a copy, the date of each request, and the date each copy was sent out.
(3) Service of Copies. Simultaneous with the filing of any and all papers with the board of health, the applicant filing such papers shall send a copy(ies) to the Department and the Department of Public Health, as prescribed in 310 CMR 16.08(2). All papers filed with the board of health shall be accompanied by a certificate signed under the pains and penalty of perjury that copies have been sent, specifying the mode of service, date mailed or delivered, the address, and address of service. Failure to comply with these requirements shall be grounds for refusal by the board of health or the Department to accept papers for filing.
(4) Fees. The applicant shall tender payment of the Technical Fee in accordance with 310 CMR 16.30(2)(b) or enter into alternative fee payment arrangements to the satisfaction of the board of health. (5) Site Assignment Application.
(a) General. The application shall be completed using forms supplied by the Department and shall contain sufficient data and other relevant information to allow the Department and the board of health to determine, independent of additional information, whether the site is suitable. The level of analysis presented in an application shall be commensurate with the nature and complexity of the proposed facility. (b) Preparation of Papers. All papers pertaining to design, operation, maintenance, or engineering of a site or a facility shall be prepared under the supervision of a registered professional engineer knowledgeable in solid waste facility design, construction and operation and shall bear the seal, signature and discipline of said engineer. The soils, geology and groundwater sections of an application, if applicable, shall be completed by professionals experienced in those fields under the supervision of a registered professional engineer. All mapping and surveying shall be completed by a registered surveyor. (c) Waiver. The application shall clearly state whether a waiver, as provided in 310 CMR 16.18 or 310 CMR 16.40(6), is requested. Applications for waivers shall be independent of the main body of the Site Assignment Application and shall include:
1. reference to the specific criteria or provision for which the waiver is requested;
2. all documentation that the applicant wants to present in support of the waiver including detailed facility design plans where appropriate. (d) Massachusetts Environmental Policy Act (MEPA).
1. The application shall include a demonstration that:
a. the MEPA process does not apply; or
b. the MEPA process does apply and the Secretary has determined that an EIR is required; or
c. the MEPA process has already been completed and the Secretary has issued a certificate or a determination that no EIR is required. 2. The first Technical Review Period (TR1) as specified under the Timely Action and Fee Provisions Regulations, 310 CMR 4.00, shall not be completed until the Secretary's final certificate has been issued. (e) Signatures. Applications shall be signed and sworn to by the applicant(s) and his/her agent, if different, as to all statements of fact therein, as set forth in 310 CMR 16.07. Where the applicant is not the owner in fee simple of the title or interest in the site, then said owner shall also sign the application. (6) Confidentiality. Any information submitted pursuant to 310 CMR 16.00 may be claimed as confidential by the applicant in accordance with the provisions of 310 CMR 3.00, Access to and Confidentiality of Department Records and Files. Information regarding the name and address of the permittee and data related to the potential impact of the proposed activity on public health, safety and the environment shall not be classified as confidential. 16.09: Public Access to Application
The board of health shall ensure that a copy of the application and all subsequent filings are available for reasonable public inspection and copying. The board of health may charge reasonable fees for such copying.
16.10: Review of Application for Completeness
(1) Report Number. The Department shall assign a Report Number to each application when the application is filed with the Department and notify the applicant, the board of health, and the Department of Public Health. The Report Number shall be used in all subsequent correspondence with the board of health, the Department, the applicant and the Department of Public Health and shall appear on any subsequent filings by the applicant.
(2) Public Comments. During the Determination Period, as defined in 310 CMR 16.10(3) the Department shall accept written comments from the board of health or interested persons regarding the completeness of the application.
(3) Determinations. The Department shall issue a written determination to the applicant as to the completeness of the application on or before 21 days after the filing of said application with the Department. An application shall not be considered complete unless the Technical Fee, if any, has been paid and the application forms are complete and accompanied by the appropriate supporting documentation. If the Department determines that the application is incomplete, deficiencies shall be stated. The Department shall send a copy of such determination to the board of health and the Department of Public Health.
(4) Public Notice of Application. The applicant, after receipt of notice of completeness from the Department, shall notify all parties identified at 310 CMR 16.08(2) and abutters to the site, by certified mail, and provide public notice, that an application has been filed with the local board of health. The notice shall:
(a) appear in at least one newspaper that has general circulation within the municipality and in the Massachusetts Environmental Policy Act (MEPA) Monitor, where the proposed facility was required to file an Environmental Notification Form (ENF) or Environmental Impact Report (EIR) with MEPA;
(b) include the location of the site; the size of the site; the type of facility; the type of waste or material to be handled at the facility; daily tonnage or throughput; the names, and addresses of the proponents and the person to whom requests for copies of the application should be directed; the public location within the community and hours where the application may be inspected; the time period for comment to be received by the Department and the address to which the comments should be mailed; and
(c) where the municipality has a population of greater than 15% of residents who do not speak English as their primary language, the applicant shall publish an additional notice in a daily or weekly newspaper(s) circulated in that community written in the primary language(s) of these residents.
(5) Commencement of Review Period. The Department Review Period shall commence when the applicant has provided proof to the Department that the public notice requirement as set forth in 310 CMR 16.10(4) has been satisfied. Proof may be in the form of a copy of the public notice in the publication. 16.11: Review Period
(1) General. Upon commencement of the Review Period, the Department shall review the application to determine if the site is suitable.
(2) Public Comments. During the initial 21 days of the Review Period the Department shall accept written comments from the board of health or other interested persons regarding the suitability of the site. All comments shall be filed with the Department's Regional Office in which the proposed site is located. The Department shall make available all comments received regarding the application to the applicant and the board of health at their request.
(3) Applicant Response and Modification.
(a) Response to Comments. The applicant may respond in writing and/or the Department may require the applicant to respond to comments during the initial 40 days of the Review Period. (b) Modification of Application. During the initial 40 days of the Review Period the applicant may modify an application provided that said modifications, when taken in their totality, do not constitute a major modification. The Department shall determine if modifications are major and issue written notice of such determinations to the applicant. (c) Major Modifications. The applicant must notify the Department and the board of health within five days of receipt of a notice from the Department that a single modification or a series of modifications constitute a major modification, whether it intends to:
1. withdraw the application; or
2. withdraw the modifications and let the Department review of the application continue on the unmodified application. (4) Failure to File Notification. Failure of the applicant to file a notification within the appropriate time will constitute a withdrawal pursuant to 310 CMR 16.11(3)(c)2.
(5) Additional Information. The Department may require the applicant to provide additional information as the Department deems necessary to fully evaluate if the site is suitable.
(6) Restricting of Comments or Response. After 40 days the Department may restrict further comments or responses to allow the completion of the Department review of the site.
(7) Issuance of Report. The Department shall issue the Report on Suitability (Report) within 60 days of the receipt of proof that the public notice requirement set forth in 310 CMR 16.10(4) has been satisfied. 16.13: Department Report On Suitability (Report)
(1) General. The Department shall forward the Report and the accompanying record to the board of health and shall provide a copy of the Report to the applicant.
(2) Content. The Report shall include:
(a) the Report Number; (b) a statement indicating that the application does or does not contain sufficient data to allow the Department to determine if the site meets the criteria. A determination that an application did not contain sufficient information to allow a determination on each criteria shall be sufficient grounds for a negative determination of suitability; (c) a statement that the site meets or fails to meet each the site suitability criteria set forth in 310 CMR 16.40, including any conditions; and (d) findings of fact pertaining to the application, any waiver that was requested, and the suitability of the site. (3) Basis for Report. The Report shall be based upon:
(a) the record;
(b) the facts and information otherwise available to the Department;
(c) expertise of the Department;
(d) expertise of other local, state or federal agencies consulted by the Department.
(4) Record. The record shall consist of the application, including any waivers requested or any modifications submitted; any report or records the Department has used in making its determination; and any and all correspondence, notices, and written comments by the Department, boards of health, applicant or the public which have been submitted in accordance with 310 CMR 16.00.
(5) Public Access. The board of health shall ensure that the Department's Report on Suitability and the Department Record are made available for copying and reasonable inspection. 16.14: Reconsideration of Findings
(1) Motions for Reconsideration. When the Department's Report contains a finding that the site fails to meet the site suitability criteria, the Department may entertain written motions for reconsideration from the applicant stating the basis on which the reconsideration is requested, if filed within 14 days of issuance of the Report. The motion for reconsideration shall state the fact(s) which it is contended the Department has overlooked or misapprehended and shall contain such argument in support of the motion as the applicant desires to present. Action on any motion for reconsideration is at the discretion of the Department.
(2) Comments. The Department may allow comments from the board of health, the Department of Public Health and the general public for a specified time period if it decides to reconsider the findings.
(3) Reissuance of Report. In the event the Department reconsiders and changes its determination, it shall amend the Report accordingly and reissue the Report.
16.15: Further Action on Application
(1) Negative Determinations of Suitability. When the Department issues a Report with a finding that a site fails to meet the site suitability criteria or that an application does not contain sufficient data to allow a determination on the criteria, the site assignment process is complete and the board of health shall not hold a public hearing as prescribed in 310 CMR 16.20, provided that an applicant may request the Department to reconsider the findings in the Report and the Report may be reissued.
(2) Positive Determinations of Suitability. When the Department issues a Report with a finding that the site does meet the site suitability criteria, the board of health shall proceed to hold a public hearing pursuant to 310 CMR 16.20 for the purpose of deciding whether to grant or refuse to grant a site assignment for the parcel of property which is the subject of the Department Report.
16.16: Requests for Technical Assistance from the Department
(1) Technical Assistance. The board of health may request advice, guidance, or technical assistance from the Department to assist in the review of the information contained within the application or the Report. Any request for technical assistance shall be in writing. The technical assistance from the Department shall stop on the date of the first scheduled public hearing, except where it will serve to clarify information contained within the Department Report.
(2) Informal Arrangements. After a request for technical assistance, the Department and the board of health may enter into informal arrangements to facilitate the review of the application, provided that the applicant is informed of any such arrangement.
16.17: Application Review by the Department of Public Health
(1) Review and Comments. The Department of Public Health (DPH) shall review the application and comment as to any potential adverse impacts the site may have on public health and safety. Such review and comment shall be made no later than 60 days after the start of the Review Period. The Department of Public Health may submit or discuss its comments with the Department during the Review Period.
(2) Department of Public Health Report. The Department of Public Health at the written request of the board of health shall make or have made a written report containing its comments on the potential adverse impacts of the site on public health and safety and may submit said report no later than 60 days after the start of the Review Period. The DPH may submit such report to the board of health.
(3) Coordination with Board of Health. The DPH shall coordinate and cooperate with the board of health on any matter relating to the report upon written request by the board of health to DPH.
16.18: Waiver
(1) General. The Commissioner may waive any provision or requirement contained in Part I of 310 CMR 16.00, or at 310 CMR 16.21: Alternative Use of Assigned Site, not specifically required by law where the Commissioner finds:
(a) that the waiver is necessary to accommodate an overriding community, regional or state public interest; and
(b) the granting of the waiver would not interfere with the ability of the board of health to fulfill its duties; and
(c) the granting of the waiver would not diminish the ability of the general public to review and comment on the proposed project.
(2) Filings. All requests for waivers shall be filed and documented in accordance with 310 CMR 16.08(5)(c). 16.20: Public Hearing Rules
(1) Preamble. "Public Hearings" pursuant to M.G.L. c. 30A are not "Adjudicatory Proceedings" within the meaning of M.G.L. c. 30A, ? 1. See M.G.L. c. 30A, ? 2. Pursuant to M.G.L. c. 111, ? 150A, however, "for the limited purpose of appeal from such public hearings, a local board of health shall be deemed to be a state agency under the provisions of said chapter thirty A and its proceedings and decision shall be deemed to be a final decision in an adjudicatory proceeding". The public hearing process is designed to permit the flexibility and informality appropriate to the board of health proceeding, while providing the board of health with procedural direction and the authority to create a record and render a decision within a limited time period which is amenable to the procedures and the standards of judicial review applicable under M.G.L. c. 30A, ? 14.
(2) Applicability. 310 CMR 16.20, governs the conduct of public hearings by a board of health on a Site Assignment Application following the issuance of a Report by the Department finding that a proposed site is a suitable for a specified type(s) of solid waste facility(ies), as required by M.G.L. c. 111, ? 150A.
(3) Public Hearing Definitions. The following words when used in 310 CMR 16.20, shall, except as otherwise required by context, have the following meaning:
Abutting Board of Health means a board of health of a municipality located within ? mile of a boundary of the proposed site.
Applicant means person named in the application as the owner of a property interest in the site and the operator of the proposed facility where the owner has entered into an agreement with an operator at the time the application is filed.
Authorized Representative means individual authorized by a party to represent him in these matters.
Board of Health or (Board) means legally designated health authority of the city, town or other legally constituted governmental unit within the Commonwealth having the usual powers and duties of the board of health of a city or town, or its authorized agent or representative; provided that in any case in which a solid waste management facility extends into the geographic areas of two or more boards of health, said boards may coordinate activities in effecting compliance with 310 CMR 16.00 for the management of solid waste. Unless otherwise explicitly stated, "the board of health" means the board of health of the municipality in which the proposed site is located.
Decision means final decision rendered by the board of health.
Hearing Officer means an individual(s) duly designated by the board of health to conduct the public hearing.
Papers means all written communications filed in the public hearing, including motions and other documents.
Party means the applicant, any abutting board(s) of health and any abutter(s), group of ten citizens or other intervenor duly registered pursuant to 310 CMR 16.20(9)(b).
Person(s) means a private person, firm, or corporation, or any federal, state, or local governmental or other entity which is not an agency.
Subpoena means a document which commands a witness to appear at a given time and give testimony before a court or an administrative proceeding such as a hearing; and may require the witness to produce before the hearing tribunal any documents, papers, or records in his possession or control.
(4) Representation
(a) Appearance. An individual may appear on his own behalf. A duly authorized officer or employee may represent a corporation; an authorized member may represent a partnership or joint venture; and an authorized trustee may represent a trust. Any Party in the public hearing shall have the right to be accompanied, represented and advised by an authorized representative.
(b) Notice of Appearance. An appearance shall be made in the public hearing by filing a written notice with the board of health or Hearing Officer. Such notice shall contain the names, address and telephone number of the authorized representative. (5) Time
(a) Timely Filing. Papers required or permitted to be filed under 310 CMR 16.20, or any provision of the applicable law must be filed at the board of health office or such other place as the board shall designate within the time limits for such filing as are set by 310 CMR 16.20 or the Hearing Officer. Papers filed in the following manner shall be deemed to be filed as set forth herein:
1. Hand-Delivery during business hours shall be deemed filed on the day delivered.
2. Hand-Delivery during times other than during regular business hours shall be deemed filed on the next regular business day.
3. Mailing in U.S. Mail shall be deemed filed on the date so postmarked. All papers shall show the date received by the board and the board shall cooperate in giving date receipts to Persons filing papers by hand-delivery.
(b) Notice of Board of Health Actions. Communications concerning public hearings pursuant to 310 CMR 16.00 from the board or the Hearing Officer shall be presumably deemed received upon the day of hand-delivery or if mailed three days after deposit in the U.S. mail.
(c) Computation of Time. Unless otherwise specifically provided by law or 310 CMR 16.20, computation of any time period referred to in 310 CMR 16.20 shall begin with the first day following the act which initiates the running of the time period. The last day of the time period so computed is to be included unless it is a Saturday, Sunday, or legal holiday or any other day on which the office of the board is closed, in which event the period shall run until the end of the next following business day. When the time period is less than six days, intervening days when the board is closed shall be excluded in the computation.
(d) Extension of Time. It shall be within the discretion of the board or Hearing Officer, for good cause shown, to extend any time limit contained in 310 CMR 16.20. All requests for extension of time shall be made by motion before the expiration of the original or previously extended time period. This discretion shall not apply to any limitation of the time prescribed by the Massachusetts General Laws. (6) Filings Generally
(a) Title. Papers filed with a board shall state the report number, the title of the proceeding, the name of the Person in whose behalf the filing is made and the name of the applicant.
(b) Signatures. Papers filed with a board shall be signed and dated by the Party on whose behalf the filing is made or by the Party's Authorized Representative. This signature constitutes a certification by the signer that he has read the document, knows the content thereof, and that such statements are true, that it is not interposed for delay and that if the document has been signed by an Authorized Representative that he has full power and authority to do so.
(c) Form. Size and printing requirements. All Papers, except those submittals and documents which are kept in a larger format during the ordinary course of a Party's business, shall be hand-printed or typewritten on paper 8 to 8? inches wide, by 11 inches long. Mimeographed, multigraphed, photoduplicated Papers will be accepted as hand-printed or typewritten. All papers shall be clear and legible.
(d) Copies. The original of all Papers shall be filed together with two copies.
(e) Service. Simultaneously with all filings of any and all Papers with the board, the Party filing such Papers shall send a copy thereof to all other Parties to the proceedings, by delivery in hand, or by United States mail, postage prepaid, properly addressed. All papers filed with the board shall be accompanied by a statement signed under the pains and penalty of perjury that copies have been sent, specifying the mode of service date, the Party to whom sent, the Party's address, and address of service. Failure to comply with this rule shall be grounds for refusal by the board to accept Papers for filing.
Any Party may request a waiver of the requirement of 310 CMR 16.20(6)(e). The Hearing Officer may grant the request if significant expense or waste of resources would be avoided and if adequate arrangements can be made for access to the Papers by all persons who would otherwise be entitled to service of a copy. (7) Initiation of Hearings.
(a) Commencement. The board shall commence a public hearing pursuant to 310 CMR 16.40 within 30 days of receipt of the Department's Report On Suitability (Report). (b) Public Notice. At least 21 days prior to commencement of the public hearing the board shall notify all parties identified at 310 CMR 16.08(2) of the hearing, by certified mail, and cause notice of the public hearing to be published. Such notice shall be published in daily or, if not possible, weekly newspapers of general circulation in the municipality. Where the municipality has a population of greater than 15% of residents that do not speak English as their primary language, the board of health shall publish an additional notice in a daily or weekly newspaper(s) circulated in that community written in the primary language(s) of those residents. (c) Form and Content. The notice shall give the date, time and location of the public hearing, a description of the proposed facility including the type of facility, proposed disposal tonnage, proposed hours of operation, the identity and mailing address of the applicant; the public location within the community and hours where the application may be inspected; the time period for written comment on the application to the board and the address to which comments should be mailed. In addition the notice shall contain the following statement: "The Department of Environmental Protection has issued a Report in which it determines that the above described place is a suitable place for the proposed facility. Copies of the Department's Report On Suitability and the site suitability criteria (310 CMR 16.00) are available for copying and examination along with the application." (8) Examination of Record Below; Discovery
(a) Availability of the Record. The Report, the application, and all comments received by the Department on the application are public records and shall be made available by the board for inspection and copying by any person during reasonable business hours. The board may charge reasonable copying fees for any of the documents comprising the record below. There shall be no additional discovery.
(b) Prefiled Direct Testimony. The Hearing Officer may, on his/her own motion, order all Parties to file within a reasonable time in advance of the public hearing full written text of the testimony of their witnesses on direct examination on issues pertinent to site assignment, including all exhibits to be offered into evidence, or on issues specified by the Hearing Officer. Such testimony shall be filed by or before a time specified by the Hearing Officer and shall be available to examination and copying as provided in 310 CMR 16.20(8)(a). The Hearing Officer may also require the filing of written rebuttal testimony within a reasonable time after the filing of the direct testimony described in the preceding sentence. All testimony filed pursuant to this rule shall be subject to the penalties of perjury. All witnesses whose testimony is filed pursuant to this rule shall appear at the hearing on the merits and be available for further examination or cross-examination at the discretion of the Hearing Officer. If a witness is not available for further examination or cross examination at the hearing on the merits, the written testimony of the witness shall be excluded from the record unless the Parties agree otherwise. (9) Intervention and Participation.
(a) Intervention. Any Person who with good cause wishes to intervene in a public hearing shall file a written request (petition) for leave to intervene. Persons whom the Hearing Officer determines are specifically and substantively affected by the hearing shall be allowed to intervene. For the purpose of the Public Hearing the following persons shall be considered to be specifically and substantively affected by the hearing and shall be eligible to register as a Party to the hearing:
1. Abutters. Any abutter or group of abutters to the proposed facility shall be a Party to the hearing by timely submission of a Party Registration Statement in accordance with 310 CMR 16.20(9)(b).
2. Ten Citizens Groups. Any group of ten or more persons may Register collectively as a Party to the public hearing in which damage to the environment, as defined in M.G.L. c. 214, ? 7A, or public health and safety are or might be at issue; provided, however, that such intervention shall be limited to the issues of impacts to public health, safety and damage to the environment and the elimination or reduction thereof in order that any decision in the public hearing shall include the disposition of such issue. (b) Registration. The registration of an abutter, group of abutters or ten citizen groups as a Party or the petition of a person to be an intervenor to the public hearing shall be valid only if submitted prior to the commencement of the hearing. The registration statement shall be signed under pains and penalty of perjury and contain the following information:
1. name and address of the registrant(s);
2. proposed party status (abutter, group of abutters, ten citizen group or intervenor);
3. identity of the Authorized Representative, if any;
4. for individuals wishing to register as an abutter a description of the abutting property including its boundaries and current use and a statement that the registrant is the owner of the parcel; and
5. for individuals or groups of individuals petitioning to be an intervenor a statement indicating how they will be substantially and specifically affected by the proposed facility. If no Authorized Representative is identified in the Registration Statement the first person mentioned in the Statement as a member of the group shall be deemed the Authorized Representative of the group. Said Authorized Representative shall have the sole authority to sign submissions by the group. A group that registers as a Party shall be collectively deemed a Party and shall have the rights of participation of a Party as set forth in 310 CMR 16.20, except as limited by 310 CMR 16.20(9). (c) Rights of Intervenors. Any person permitted to intervene shall have all rights of, and be subject to, all limitations imposed upon a Party, however, the Hearing Officer may exclude repetitive or irrelevant material. Every Petition to intervene shall be treated as a petition in the alternative to participate. (d) Rights of Participants
1. Any person specifically affected by a proceeding shall be permitted to participate. Permission to participate shall be limited to the right to present testimony, to argue orally at the close of the public hearing and to file a brief. Permission to participate, unless otherwise stated, shall not be deemed to constitute an expression that the person allowed to participate is a party in interest who may be aggrieved by any final decision.
2. Participants shall not be required to submit to cross examination except upon the determination of the Hearing Officer that cross examination is necessary in the interest of a full and fair hearing and an adequate record. Such cross examination of participants shall be conducted through the Hearing Officer. Failure of a Participant to submit to cross examination allowed by the Hearing Officer shall be grounds to strike the Participant's statements. (10) Conduct of Public Hearing.
(a) Public Hearings, Where Held. Hearings shall be held at a public meeting hall, appropriately sized to accommodate all Parties and the number of persons reasonably anticipated to attend in the city or town where the site is located. The public hearing shall continue until it is closed by the Hearing Officer. Arrangements by the board to provide a place for such public meeting shall anticipate that the public hearing may extend for several days. (b) General. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. The applicant shall be the party to first proceed to introduce evidence and testimony except as ordered by the Hearing Officer. (c) Decorum. All Parties, Authorized Representatives, witnesses and other persons present at the public hearing shall conduct themselves in a manner so as not to obstruct or delay the orderly presentation of evidence and issues. Where such decorum is not observed, the Hearing Officer may take appropriate action. (d) Hearing Officer. The Hearing Officer shall define issues, receive and consider relevant and reliable evidence and exclude irrelevant evidence, ensure an orderly presentation of the evidence and issues, and aid the board in reaching a decision based on the evidence presented at the hearing and in accordance with the standards set forth in M.G.L. c. 111, ? 150A. (e) Rights of Parties. All Parties shall have the right to present evidence, cross-examine, make objections and make oral arguments. Cross-examination shall occur immediately after any witness' testimony has been received. Whenever appropriate, the Hearing Officer may permit redirect and recross. (f) Evidence and Testimony
1. A witness' testimony shall be under oath or affirmation.
2. All evidence and testimony, materials and legal rules on which a decision is to be based must be entered into the Record of the public hearing, unless excluded pursuant to 310 CMR 16.20(8)(b), or (10)(f)3.
3. Witnesses giving testimony shall be available for such further examination or cross examination as is determined to be appropriate by the Hearing Officer. Failure of a witness to be so available may be grounds to strike any other testimony given by such witness from the record at the sole discretion of the Hearing Officer. The Hearing Officer may limit or exclude unduly repetitious or irrelevant evidence. The Report and the Department Record shall not constitute testimony for the purposes of 310 CMR 16.20
4. All documents and other evidence offered in evidence shall be open to examination by the Parties.
5. All evidence including any records, investigative reports, documents and stipulations which are to be relied upon in making a decision must be offered and made a part of the Record. Documentary evidence may be in the form of copies or excerpts, or by incorporation by reference. (g) Administrative Notice. The Hearing Officer or the board of health may take notice of any fact which may be judicially noticed by the courts, and in addition may take notice of general, technical or scientific facts within their specialized knowledge. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. The board may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them. (h) Subpoenas. No subpoenas may be issued or enforced requiring the attendance and testimony of a witness or the production of documents at the public hearing. (i) Transcript of Proceedings. Testimony and argument at the hearing shall be either recorded electronically or stenographically. Transcripts of the proceedings shall be supplied to any Party, upon request, at his own expense. Any Party, upon motion, may order a stenographer to transcribe the proceedings, at his own expense. In such event, a stenographic record shall be provided to the board or Hearing Officer at no expense to the board, and upon such other terms as the board or Hearing Officer shall orde |
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