310 CMR, § 40.0050 - Appeals of Orders and Permits

(1) Wherever expressly provided by 310 CMR 40.0000, any person who is aggrieved by a permit decision of the Department, or order issued pursuant to M.G.L. c. 21E, § 9, may request an adjudicatory hearing before the Department.

(2) Each request for a hearing must be sent to the Docket Clerk of the Department by certified mail or hand-delivered within 21 days of the date of issuance of the decision being appealed. A copy of the request shall be sent by certified mail or hand delivered simultaneously to:

(a) the Chief Municipal Officer for the municipality where the disposal site is located;

(b) the regional office of the Department that issued the decision or order; and

(c) where the person aggrieved by a decision is a Permit Applicant who is appealing a permit decision, pursuant to 310 CMR 40.0770, such person shall also simultaneously send, by certified mail or hand delivery, a copy of the request for an adjudicatory hearing to each person who provided public comment.

(3) Any person who appeals a decision or order who is neither the applicant nor the person to whom such an order was issued is required to simultaneously send a copy of the hearing request by certified mail or by hand to the applicant. For purposes of 310 CMR 40.0000, an aggrieved person is any person who is entitled to become a party or intervene in the proceeding under 310 CMR 1.00: Adjudicatory Proceedings.

(4) Each request for a hearing submitted pursuant to 310 CMR 40.0050 shall state clearly and concisely the facts which are grounds for the proceeding, in what manner the person, in whose name the request is made, is aggrieved and the remedy that is being sought. The appropriate filing fee required under 310 CMR 4.00: Timely Action Schedule and Fee Provisions shall be sent to the Department in the manner required therein.

(5) Where an applicant is seeking a decision from the Department, the applicant has the burden of establishing, on the basis of credible evidence from a competent source, such facts as are necessary to meet the conditions and criteria set forth in the applicable provisions of 310 CMR 40.0000.

(6) Where an aggrieved person is someone other than the applicant, the aggrieved person has the burden of establishing on the basis of credible evidence from a competent source, such facts as are necessary to meet the conditions and criteria set forth in applicable provisions of 310 CMR 40.0000.

(7) The filing of an appeal shall not prevent the Department from issuing any future orders or taking any other action the Department reasonably deems necessary to respond to a release or threat of release of oil or hazardous material, including, but not limited to, taking or arranging one or more response actions at the site or location which is the subject of the appeal.

(8) The following determinations shall not be subject to an adjudicatory hearing:

(a) a decision whether to issue an order pursuant to M.G.L. c. 21E, § 10;

(b) a decision whether to issue a Notice of Responsibility to any person pursuant to 310 CMR 40.0160(1);

(c) a decision whether to issue a Notice of Intent to Take a Response Action pursuant to 310 CMR 40.0160(2);

(d) a decision whether to issue a Request for Information pursuant to 310 CMR 40.0165;

(e) a decision whether to establish Interim Deadlines pursuant to M.G.L. c. 21E, § 3A(j) and 310 CMR 40.0167;

(f) a decision whether to authorize site access pursuant to M.G.L. c. 21E, § 8, and 310 CMR 40.0173;

(g) a decision whether to develop an administrative record in accordance with 310 CMR 40.1300;

(h) a decision whether to audit a specific site to determine whether such site is in compliance with M.G.L. c. 21E, 310 CMR 40.0000, and any other law administered or enforced by the Department;

(i) a decision whether to initiate enforcement action against any person under M.G.L. c. 21E and/or 310 CMR 40.0000;

(j) a decision regarding a petition for reimbursement of costs under 310 CMR 40.1260;

(k) a decision whether to initiate Compliance Assistance under 310 CMR 40.1100;

(l) a decision whether to issue a Technical Assistance Grant;

(m) a decision upon administrative review of a demand for payment of Response Action Costs in accordance with 310 CMR 40.1220(3);

(n) any decision to suspend, revoke or refuse to renew any permit, authorization, approval, including, but not limited to, any Waiver of Approvals, or similar form of permission required by M.G.L. c. 21E and/or the MCP, where:

1. DEP is expressly not required by the General Laws to grant a hearing; or

2. DEP is required by law to take such action without exercising any discretion in the matter on the basis of a court conviction or judgment; or

3. such action is based solely upon failure to file timely reports, schedules or applications, or to pay lawfully prescribed fees;

(o) any decision contained in a Notice of Audit Findings at the conclusion of an audit, provided, however, that any Notice of Intent to Assess a Civil Administrative Penalty or order accompanying such notice or issued following issuance of a Notice of Audit Finding shall be subject to an adjudicatory hearing;

(p) any decision to designate one or more disposal sites or response actions as a Special Project in accordance with 310 CMR 40.0026;

(q) any Reclassification of a Tier lA disposal site made in accordance with 310 CMR 40.0583;and

(r) any other determination, decision, authorization or approval under M.G.L. c. 21E and/or 310 CMR 40.0000 for which an adjudicatory hearing is not required by M.G.L. c. 30A, unless expressly required by 310 CMR 40.0000.

Notes

310 CMR, § 40.0050

Amended by Mass Register Issue 1503, eff. 3/1/2024. Amended by Mass Register Issue S1516, eff. 3/1/2024.