Permit Procedure for a New Facility or Expansion Permit Application

(1) General. 310 CMR 19.032 describes the permit procedure for a permit application for a new facility, an expansion of an existing facility, or for any other application the Department deems appropriate as specified in 310 CMR 19.029(1). (2) Draft Decision. (a) The Department shall prepare a draft decision. A draft decision for granting a permit shall include all appropriate conditions, standards, and requirements necessary to establish a new facility or to conduct approved activities at an existing facility. (b) Each draft decision shall be accompanied by a fact sheet briefly describing: 1. the facility or activity which is the subject of the draft decision; 2. the type and quantity of wastes which are to be handled; 3. the reasons for the terms and conditions set forth therein; and 4. the reasons why requested variances or alternatives to required standards are or are not proposed to be approved. (c) Distribution of the Draft Decision. The Department shall send a copy of the draft decision and the accompanying fact sheet to the applicant, the local board of health, abutting board of health, if any, and, on written request, to any other person. (d) Description of Procedures. A description of the procedures for reaching a final decision on the permit application shall accompany the copy of the draft decision and shall include: 1. the beginning and ending dates of the comment period and the address where comments will be received; 2. any other procedures by which the public may participate in the process leading to a final permit decision; and 3. the name and telephone number of an individual to contact for additional information. (3) Public Notice. (a) The Department shall cause public notice to be given when: 1. a draft decision on a facility permit application has been prepared; or 2. a public hearing on a draft decision has been scheduled. Public notice in this case shall be given at least 21 days prior to the hearing date. (b) Notice of More than One Permit. A public notices may describe more than one permit or permit action. (c) Method of Notice. Public notice shall be given by the following methods: 1. By mailing notice to: a. the applicant; b. the board of health of the municipality in which the facility is to be located or the permitted activity is proposed; c. the board of health of any municipality within ½ mile of the proposed facility ("abutting board of health"); and d. abutters of the facility site. 2. By publication, paid for by the applicant, in a daily or weekly newspaper of general circulation in the locality affected by the facility. (d) Content of Notice. A public notices shall, at a minimum, contain the following information: 1. a description of the proposed facility including the type of facility, proposed tonnage, location and hours of operation; 2. the identity and mailing address of the applicant; 3. the public location where the application can be inspected; and 4. the time period for written comments on the application and the address to which comments should be mailed, and, if a public hearing is to be held, the public hearing information set forth at 310 CMR 19.032(5). (4) Comment Period. (a) A public notice issued pursuant to 310 CMR 19.032(3) for a draft decision shall allow at least 30 days for public comment. The comment period shall begin on the date the public notice is first published in a newspaper as specified at 310 CMR 19.032(3)(c)2. or on a later date specified in the public notice. (b) Written Comments. During the public comment period, any interested person may submit written comments on the draft decision to the office of the Department processing the permit request. (c) Extending or Reopening the Public Comment Period. The Department may extend or reopen the public comment period to allow for the issuance of a modified draft decision or to give interested persons an opportunity to comment on the information or arguments submitted. If the Department gives such an extension, public notice thereof shall be given in the manner prescribed in 310 CMR 19.032(3). Such notice shall specify any new issues to be considered. (5) Public Hearing. (a) Circumstances Requiring Hearing. The Department shall schedule a public hearing within the municipality wherein the proposed facility is to be located when: 1. the applicant requests a public hearing; 2. the Commissioner determines that there is sufficient public interest in unresolved issues of concern; or 3. the Department prepares a modified draft decision with substantial revisions from the original draft decision as a result of comments received pursuant to 310 CMR 19.032(4). Copies of the modified draft decision shall be distributed in accordance with 310 CMR 19.032(2)(c). (b) Content of Public Hearing Notice. Public notice of the public hearing shall be given in the manner described in 310 CMR 19.032(3) and shall include: 1. the date, time, and place of the public hearing; and 2. the nature and purpose of the public hearing. (c) Public Hearing Procedures. 1. Hearing Officer. The Department shall designate a representative to conduct the public hearing. The Hearing Officer shall have authority to ensure an orderly presentation of issues, comments, data, and arguments, and to ensure an adequate and comprehensible record of the proceedings. The Hearing Officer may, at his or her discretion, without limitation of the foregoing: a. define relevant issues, receive and consider relevant matter and exclude irrelevant or unduly repetitive matter; b. determine the order in which persons wishing to do so may present oral comments; c. conduct appropriate examination of persons offering oral comments; d. establish a reasonable time limit for all persons wishing to offer oral comments; e. require the applicant or any other person intending to present studies or exhibits for consideration at the hearing to file such material within a reasonable time in advance of the hearing; f. require any person who refers to or relies upon written information or expert opinion in offering comments to provide copies of such material within a reasonable time after the hearing; g. permit an opportunity for oral rebuttal of comments received; h. allow a reasonable time after the hearing for providing written comment or rebuttal; and i. order adjournment, recess, or rescheduling of the hearing. 2. Participation in the Hearing. Any person may attend and observe the public hearing. Any person wishing to offer oral comments may do so upon filing a written statement containing the name, address, and telephone number of an authorized representative to whom correspondence may be addressed for purposes of the hearing. 3. Authorized Representative. An individual may appear on his or her own behalf. A duly authorized officer or employee may represent a corporation; a duly authorized member may represent a partnership, joint venture or association; and an authorized trustee may represent a trust. Any person shall have the right to be accompanied, represented and advised by an authorized agent or attorney. 4. Conduct of Hearings. The hearings shall be as informal as may be reasonable and appropriate under the circumstances. The Hearing Officer shall ensure that the conduct of persons at the hearing will at all times be orderly. 5. Withdrawal of Request for Hearing. The applicant or any other person who requested a hearing may withdraw the request, or may elect to submit any comments or documents without a hearing, by filing with the Department a written withdrawal. If notice of a hearing has already been published pursuant to 310 CMR 19.032(3), such withdrawal shall be filed at least ten days prior to the scheduled hearing, and notice of the withdrawal shall be provided in the same manner specified in 310 CMR 19.032(3). 6. Recordings and Transcripts. The proceedings at the hearing shall be recorded either electronically or stenographically. Transcripts or electronic copies shall be supplied to any person, upon request, at his or her own expense. Any person, upon request, may order a stenographer to transcribe the proceedings or the Department's electronic recording at his or her own expense. In such event, a transcription shall be provided to the Department at no expense to the Department, and upon such other terms as the Hearing Officer shall order. (6) Issuance of the Final Decision on a Permit Application. (a) Issuance and Public Notice. After the close of the public comment period, or, if applicable, the close of the public hearing, whichever is later, the Department shall issue a final decision on the permit application. Notice of the Department's final decision and summary response to comments shall be given to the applicant by electronic transmission upon agreement by the applicant, or, if not, by first class mail. Notice shall also be provided to the board of health, any abutting board of health and each person who has requested notice of the final decision. (b) Effective Date. Unless otherwise stated in the permit, the permit shall be effective upon issuance. (c) Summary Response to Comments. At the time the decision is issued, the Department shall prepare a summary of the major comments on the draft decision and a response to comments and shall describe any major changes made to the draft decision as a result of comments received. (d) Legal Challenges. 1. Appeal. Any person aggrieved by the final permit decision may file an appeal for judicial review of said decision in accordance with the provisions of M.G.L. c. 111, § 150A and c. 30A not later than 30 days following the date of issuance of the final permit decision to the applicant. The standing of a person to file an appeal and the procedures for filing such appeal shall be governed by the provisions of M.G.L. c. 30A. Unless the person requesting an appeal requests and is granted a stay of the terms and conditions of the final permit decision by a court of competent jurisdiction, the final permit decision shall be effective in accordance with 310 CMR 19.032(6)(b). 2. Notice of Action. Any aggrieved person intending to appeal a final permit decision to the Superior Court shall first provide notice of intention to commence such action. Said notices of intention shall include the Department file number and shall identify with particularity the issues and reason why it is believed the final permit decision was not proper. Such notice shall be provided to the Office of General Counsel of the Department and the Regional Director for the regional office which processed the permit application, if applicable, at least five days prior to the filing of an appeal. 3. No allegation shall be made in any judicial appeal of a final permit decision unless the matter complained of was raised at the appropriate point in the administrative review procedures established in 310 CMR 19.000, provided that a matter may be raised upon a showing that it is material and that it was not reasonably possible with due diligence to have been raised during such procedures or that matter sought to be raised is of critical importance to the environmental impact of the permitted activity.