Criteria to Assess Whether Facilities are in Separate Ownership or Control

(1) In assessing whether facilities are in single ownership for purposes of determining whether the total design flow exceeds the 2,000 gpd threshhold of 310 CMR 15.202 (recirculating sand filters) or the permitting, treatment and effluent standard requirements of 314 CMR 5.00: Ground Water Discharge Permit Program, the Approving Authority may consider one or more of the following factors: (a) whether the owner or operator of facilities asserted to be in separate ownership operate the facilities independently, including whether there are any common or related beneficiaries among the separate ownership entities, and whether each owner acts with due regard for the independent financial interests of the owner, operator and any beneficiaries of the assertedly separate facilities; (b) whether, and the extent to which, legal agreements exist which provide the owner or operator of facilities asserted to be in separate ownership the right to access each other’s facilities and/or to use and share financial responsibility for common buildings, infrastructure, or services; (c) the existence of some evidence that ownership or control of the facilities asserted to be in separate ownership or control was arranged to circumvent the requirements of 310 CMR 15.202 (Recirculating Sand Filters), or 314 CMR 5.00: Ground Water Discharge Permit Program, including evidence that two or more facility owners have acted in concert to acquire or dispose of adjacent properties to avoid the above regulatory requirements; (d) the effect of the facilities on the public health and environment, including an evaluation of whether the facilities provide local groundwater recharge and/or are cluster developments that preserve open space. (2) In the event the Approving Authority determines, using the criteria set forth at 310 CMR 15.011(1) that facilities asserted to be in separate ownership or control should be treated as a single facility for the purposes of 310 CMR 15.000, that determination may be appealed in accordance with 310 CMR 15.422 (appeals).