310 CMR, § 16.01 - General Requirements
(1)
Purpose and General Description. The purpose of
310 CMR 16.00 is to protect
public health, safety and the environment by comprehensively regulating:
(a) the siting of solid waste facilities;
and
(b) operations which recycle,
compost, or convert recyclable or organic materials.
(2)
Organization.
310 CMR 16.00 is composed of
four parts.
(a) Part I identifies the
activities that require a site assignment and the activities that are exempt
from site assignment but remain subject to regulation by the
Department.
(b) Part II establishes
the rules for a public hearing held by the board of health for assigning a
site.
(c) Part III describes the
application fee paid by a site assignment applicant and used by a board of
health for technical review of the data and for conducting a public
hearing.
(d) Part IV establishes
the site suitability criteria that are to be applied by the board of health or
the Department, whichever is applicable, in determining whether a site is
suitable.
(3)
Authority. Pursuant to M.G.L. c. 21A, §§ 2
and 8, c. 21H, § 7, and c. 111, §§ 150A and 150A1/2, the
Department has the authority to:
(a) establish
a process for a board of health and the Department to issue site assignments;
and
(b) regulate recycling,
composting and conversion operations.
(4)
Applicability.
The site assignment requirements set forth at
310 CMR 16.00 shall apply to
facilities that process, store, transfer, treat, or dispose of solid waste.
They shall not apply to:
(a)
Hazardous Waste Facilities. Facilities that manage
hazardous wastes which are regulated pursuant to 310 CMR 30.000:
Hazardous Waste;
(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:
Operation and Maintenance and Pretreatment Standards for Wastewater
Treatment Works and Indirect Dischargers, 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. A solid waste combustion
facility that is rated by the Department at one ton per hour or less pursuant
to M.G.L. c. 111, § 150A; and
(d)
Beneficial Reuse of a Solid
Waste pursuant to
310 CMR
19.060: Beneficial Use of Solid
Waste. The beneficial use of a solid waste as a secondary
material in compliance with the requirements set forth at
310 CMR
19.060: Beneficial Use of Solid
Waste.
(5)
Access to Facilities and Properties.
(a)
Reasonable
Access. At all reasonable times and without prior notice,
personnel or authorized representatives of the Department may enter any
facility or other property where solid waste or recyclable or organic material
has been or is being disposed, handled, managed, placed, processed, reused,
stored, transferred, treated, used or for the purposes of: assessing,
preventing or remediating damage to the environment; protecting the public
health, safety or the environment; determining or enforcing compliance; or
preventing or abating public nuisances; provided that the personnel or
authorized representatives of the Department present Department-issued
identification and receive the consent of the owner, operator or person in
control of said facility or property. Notwithstanding the foregoing, personnel
or authorized representatives of the Department may enter a facility or
property without such consent if emergency conditions require immediate entry
as authorized by the conditions of any authorization, determination,
modification, permit, or other approval, by the terms of any order or other
enforcement document, or as otherwise authorized by law.
(b)
During
Inspection. After entry, personnel or authorized representatives
of the Department may inspect, investigate, photograph, or sample any
condition, equipment, operation, practice, record or property and make
examinations and evaluations of a facility or other property specified in 310
CMR 16.01(5)(a), to determine and enforce compliance with M.G.L. c. 21A,
§§ 2 and 8, M.G.L. c. 111, §§ 150A and 150A1/2 and/or
310 CMR 16.00 or take or
arrange for actions authorized by M.G.L. c. 21H, § 7.
(c)
Access to
Information. Where necessary to ascertain facts relevant to
compliance or to actual or potential harm to public health or safety, actual or
potential public nuisances, or actual or potential damage to the environment
that may be caused by the disposal, handling, management, placement,
processing, reuse, storage, transfer, treatment or use of solid waste or
recyclable or organic materials, the Department may request and any person
shall, within a reasonable time, furnish the requested information and shall
permit said Department personnel or authorized representatives to have access
to and to copy, or to take images of, all records relating thereto.
(d)
Duty to
Cooperate. The owner and operator of a facility or other property
and the person possessing information as specified in 310 CMR 16.01(5)(c) shall
in no way restrict, impede, or delay an inspection or any request for
information by personnel or authorized representatives of the Department where
such inspection or request is made pursuant to a reasonable request in
accordance with 310 CMR 16.01(5), or in accordance with the conditions of any
authorization, determination, modification, permit, or other approval, or
pursuant to the terms of any order or other enforcement document, or as
otherwise authorized by law.
(e)
Warrants. Upon denial of access or if the Department
cannot locate with reasonable efforts the owner, operator or person in control
of a facility or property, or upon refusal of a person to provide information
requested, the Department may seek, from a court, judge, justice or magistrate,
a warrant authorizing personnel or authorized representatives of the Department
to conduct a reasonable search of the facility or property or to obtain the
information requested. 310 CMR 16.01(5)(e) shall not preclude the Department
from gaining access through other legal means, including, but not limited to, a
court order or injunctive relief.
(6)
Joint and Several
Liability. Wherever
310 CMR 16.00 states that the
owner or operator shall take action or refrain from taking action, the owner
and operator shall be jointly and severally liable such that the Department may
take action for any violation against the owner, the operator or
both.
(7)
Burden of
Proof. In every proceeding, the owner and operator bear the burden
to persuade the Department that the activities or operations being conducted
pursuant to
310 CMR 16.00 do not create
public nuisance conditions and do not pose a significant threat to public
health, safety or the environment.
(8)
Enforcement.
(a)
Violations. It
shall be a violation of
310 CMR 16.00 for any person
to:
1. fail to submit a certification, log,
notification, permit application or modification, plan, report or any other
document within the time period specified in
310 CMR 16.00 or as specified
in any approval, order, or permit issued by the Department;
2. make any false, inaccurate, incomplete or
misleading statements in any certification, log, notification, permit
application or modification, plan, report, or any other document which that
person is required to maintain and submit pursuant to
310 CMR 16.00, or as
specified in any approval, order, or permit issued by the Department;
3. hold himself or herself out as a
responsible official when he/she is not fully authorized to bind the
corporation, company, partnership, trust, sole proprietorship or municipality
in violation of
310 CMR 16.00;
4. deny the Department access, upon
reasonable request pursuant to 310 CMR 16.01(5) or pursuant to an
authorization, modification, permit or other approval or order or other
enforcement document, or as otherwise authorized by law, to:
a. enter upon and inspect the site, or other
property where solid waste or recyclable or organic material has been or is
being disposed, handled, managed, placed, processed, reused, stored,
transferred, treated or used; and
b. review and copy any relevant records to
determine and compel compliance with applicable regulations and any permit,
modification or other approval or order issued pursuant to
310 CMR 16.00;
5. maintain or operate any place
as 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;
6. handle or dispose of solid
waste at any location that does not have a site assignment, except as may be
allowed pursuant to
310 CMR
16.03;
7. recycle, compost, convert or otherwise
handle recyclable or organic materials in a manner that is not in compliance
with
310 CMR
16.03,
16.04
or
16.05;
8. fail to comply fully with the applicable
provisions of
310 CMR 16.00 or with any
authorization, modification, permit or other approval or order or other
enforcement document issued pursuant to
310 CMR 16.00 or with any
certification submitted pursuant to
310 CMR 16.00;
9. act without submitting a notification or
certification, whichever is applicable, in accordance with
310 CMR 16.00; or
10. violate any other provision of
310 CMR 16.00.
(b)
Action by the
Department. Nothing in
310 CMR 16.00, or in any
order or other enforcement document issued pursuant thereto, shall be construed
to limit any right of the Department to take enforcement action pursuant to any
other authority. 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:
a. cease operations until the violation
is corrected to the satisfaction of the Department or until such person obtains
a site assignment and solid waste management facility permit or a permit issued
pursuant to
310 CMR 16.00;
b. cease all illegal activity immediately or
at a specified date and to comply fully with
310 CMR 16.00 and 19.000:
Solid Waste Management or with any permit or conditions
pursuant to
310 CMR 16.00; or
c. take appropriate remedial measures
immediately or by a specified date to bring the site into compliance or to
protect public health, safety or the environment, including without limitation,
closure of the site.
2.
rescind, suspend, revoke, or modify any general permit or permit issued
pursuant to
310 CMR 16.00 and/or initiate
an enforcement action in accordance with applicable statutes or regulations.
Where a permit is rescinded, suspended or revoked, the owner or operator shall
cease operations until:
a. the owner or
operator corrects the violation to the satisfaction of the Department;
or
b. the owner or operator applies
for and obtains a site assignment and solid waste management facility
permit.
3. 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: Administrative Penalty;
or
(c)
Right to
Adjudicatory Hearing. A person who is the subject of an order
issued pursuant to 310 CMR 16.01(8)(b)1. or 2. shall have the right to request
an adjudicatory hearing on such order within 21 calendar days of the date of
service of the order by filing a notice of claim with the Department in
accordance with the procedures set forth in 310 CMR 16.01(8) and in
310
CMR 1.01: Adjudicatory Proceeding
Rules for the Department of Environmental Protection. 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: Administrative
Penalty.
(d)
Waiver of Right to Adjudicatory Hearing. Any person
who is the subject of an order issued pursuant to 310 CMR
16.01(8)(b)1.or 2. shall be deemed to have waived the
right to an adjudicatory hearing, unless, within 21 calendar days of the date
of service of the order, the Department receives a request for an adjudicatory
hearing with a notice of claim setting forth the basis for the request for an
adjudicatory hearing, subject to and in compliance with the applicable
provisions of
310
CMR 1.01: Adjudicatory Proceeding
Rules for the Department of Environmental Protection
(e)
Service of Notices and
Orders. Service in all civil administrative penalty actions is
governed by
310 CMR
5.00: Administrative Penalty. The
Department may serve an order issued pursuant to
310 CMR 16.00 according to
any of the following procedures except for any process, notice, or order issued
in the course of an adjudicatory hearing governed by the provisions of
310
CMR 1.01: Adjudicatory Proceeding
Rules for the Department of Environmental Protection.
1. Service of an order is complete when it is
hand delivered by an employee or agent of the Department to the person to be
served or to any officer, employee, responsible official or agent of the
person. The fact and date of service is established by the return or affidavit
of the person making service.
2.
Service of an order, when made by any form of mail requiring the return of a
receipt signed by the person to be served, is complete upon delivery to the
person or to any officer, employee, responsible official or agent of the
person. The fact and date of service is established by the returned
receipt.
3. The Department may make
service of an order in any other manner, including any form of electronic mail,
facsimile or other electronic medium, national overnight carrier, or regular
mail to the last known address, or by publication or other method of delivery
reasonably calculated to give actual notice to the recipient of the order. The
Department may use such alternative methods of service only when the person to
be served declines to accept receipt by the service methods specified in 310
CMR 16.01(8)(e)1. and 2. The fact of service in such cases is established by
such records as may be available. Service is complete upon the date on which
the Department initiates electronic transmission, the date of publication, one
day after the date of overnight mailing or three days after the date of regular
mailing or other method of service.
(9)
Time.
(a)
Computation of
Time. Unless otherwise specifically provided by law or regulation
or 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 on 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.
(b)
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 in 310 CMR
16.01(6)(b)1. through 5.:
1. hand-delivery
during business hours shall be deemed filed on the day delivered;
2. hand-delivery during non-business hours
shall be deemed filed on the next regular business day;
3. mailing by placing in U.S. mail shall be
deemed filed on the date so postmarked;
4. electronic delivery during regular
business hours shall be deemed filed on the date received; and
5. electronic delivery after regular business
hours shall be deemed filed on the business day following receipt.
(c) Papers shall show the date
received by the board of health and the Department. The board of health and the
Department shall cooperate in giving date receipts to any person filing papers
by hand-delivery.
(10)
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 any person or circumstance that can be given effect
without the invalid provision or application.
(11) Notwithstanding 310 CMR 19.000:
Solid Waste Management and any solid waste management facility
permit condition, the owner and operator of a solid waste management facility
with a solid waste management permit issued pursuant to 310 CMR 19.000:
Solid Waste Management may conduct any activity pursuant to
310 CMR
16.03,
16.04
or
16.05
by complying with the applicable requirements of
310 CMR
16.03,
16.04
and
16.05;
provided that:
(12)
Transition Provisions.
(a)
Determinations of
Need. An owner and operator to whom a determination of need has
been issued are subject to the following requirements.
1.
Operation Pursuant to
Determination of Need for Transition Period. An owner and operator
to whom a determination of need has been issued may continue operating in
compliance with such determination of need until the date of expiration of the
determination of need or the date five years after November 23, 2012, whichever
is sooner, hereafter referred to as the transition deadline.
2.
Requirements for Transition
Notices or Filings by Transition Deadline. The owner or operator
must take one of the following steps prior to the transition deadline:
a. at least 180 days prior to the transition
deadline, file a notice with the Department demonstrating that the operation
qualifies for an exemption pursuant to
310 CMR
16.03. Upon filing of such notice, the owner
and operator shall continue operating only in accordance with the applicable
exemption at
310 CMR
16.03, and the determination of need shall no
longer be in effect.
b. at least
180 days prior to the transition deadline, file a certification with the
Department in accordance with
310
CMR 16.06(1) stating that
the operation is in compliance with
310
CMR 16.04. Upon such filing, the owner and
operator shall continue operating only in accordance with the applicable
general permit at
310
CMR 16.04, and the determination of need
shall no longer be in effect.
(b)
Conditional Exemptions. An owner and operator of an
operation previously exempt pursuant to the provisions of
310
CMR 16.05 in effect prior to November 23,
2012 shall comply with the applicable requirements of
310 CMR 16.00. If the
operation is subject to an annual certification, the owner or operator shall
submit the first certification on or before February 15, 2014. Thereafter, the
owner and operator shall continue to comply with
310 CMR 16.00, including but
limited to, if applicable, filing an annual certification in accordance with
310
CMR 16.06(1).
(c) Nothing in 310 CMR 16.01(12) shall be
construed to limit the authority of the Department to take any enforcement
action if the owner or operator fails to comply with any determination of need
during its remaining term or with the requirements of
310 CMR 16.00 or 310 CMR
19.000: Solid Waste Management at any time.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.