U Hearings Relative to Orders and Approvals

(1) Rules to Request an Adjudicatory Hearing. (a) Definitions. Unless otherwise indicated, the definitions in 310 CMR 7.00 apply to 310 CMR 7.51(1) and (3). Where a term is defined in 310 CMR 7.00 and 7.51(1), the definition in 310 CMR 7.51(1) controls for purposes of 310 CMR 7.51(1) and (3). Adjudicatory Hearing or Hearing means a hearing under M.G.L. c. 30A, where parties may present evidence on issues of fact and argument on issues of law, and which is concluded by the Commissioner’s issuance of a final decision pursuant to 310 CMR 1.01(14): Decisions. Aggrieved Person means any person who, because of an act or failure to act by the Department, may suffer an injury in fact that is different either in kind or magnitude from that suffered by the general public, and that is within the scope of the interests protected by 310 CMR 7.00. Applicant means the person named in the application as the owner or operator of the proposed facility or emission unit. Application means any request by a person for a permit, a plan approval, an emission control plan, a restricted emission status, an operating permit, an emission reduction credit or other approval issued by the Department pursuant to 310 CMR 7.00. Approve or Approval means the approval or approval with conditions of an application for a permit, a plan approval, an emission control plan, a restricted emissions status, an operating permit, an emission reduction credit or other type of approval issued by the Department pursuant to 310 CMR 7.00. Disapprove or Disapproval means the disapproval or denial by the Department of an application for a permit, a plan approval, an emission control plan, a restricted emissions status, an operating permit, an emission reduction credit or other type of application made to the Department pursuant to 310 CMR 7.00. Decision means the Department’s action to approve or disapprove of an application pursuant to 310 CMR 7.00. Date of Issuance means the date the Department sends the decision to an applicant. Person means any individual, partnership, association, firm, syndicate, company, trust, corporation, department, authority, bureau, agency, political subdivision of the Commonwealth, law enforcement agency, fire fighting agency, or any other entity recognized by law as the subject of rights and duties. Request for Adjudicatory Hearing means the notice of claim for an adjudicatory hearing that is filed with the Office of Administrative Dispute Resolution in accordance with the requirements in 310 CMR 1.01: Adjudicatory Proceedings. (b) Applicability. The provisions of 310 CMR 7.51(1) apply to any person(s) who submitted an application to the Department after March 9, 2018, and who is seeking to request an adjudicatory hearing to review any Department decision on an application submitted pursuant to 310 CMR 7.00, except as exempted in 310 CMR 7.51(1)(c). (c) Exemptions. No person or ten persons group may file a request for an adjudicatory hearing pursuant to the requirements in 310 CMR 7.51(1) for the following actions: 1. Administrative orders issued by the Department for violations of any provision of 310 CMR 7.00 that shall be appealed within ten days of issuance pursuant to the procedures and requirements of 310 CMR 7.51(3). 2. Administrative penalty assessments issued pursuant to M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty for violations of any provisions of 310 CMR 7.00 shall be appealed in accordance with the provisions of 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection and 310 CMR 5.00. 3. Tunnel Ventilation Certifications issued by the Department pursuant to 310 CMR 7.38 that require appeals to Superior Court. 4. Approvals or disapprovals or portions of approvals or disapprovals, issued by the Department pursuant to 40 CFR 52.21 (PSD). 5. Notifications, certifications and other submittals to the Department on which the Department does not issue decisions including, but not limited to, the certification required pursuant to 310 CMR 7.02(7)(c), Facility Emission Cap Notifications pursuant to 310 CMR 7.02(11), notifications regarding demolition/renovation operations pursuant to 310 CMR 7.09, notifications regarding asbestos abatement activities pursuant to 310 CMR 7.15, notifications and certifications pursuant to 310 CMR 7.24, and/or certifications pursuant to 310 CMR 7.26. 6. Department requests for and approval of monitoring, modeling and compliance protocols, actions, and results pursuant to 310 CMR 7.00 including, but not limited to, stack testing pursuant to 310 CMR 7.13, and emissions monitoring pursuant to 310 CMR 7.14. 7. Department approvals or denials of waivers or variances under 310 CMR 7.00 including, but not limited to, notification waivers and nontraditional work practice approvals issued pursuant to 310 CMR 7.15. 8. Approvals of administrative amendments to plan approvals issued by the Department pursuant to 310 CMR 7.02(13) and minor modifications to Operating Permits issued by the Department pursuant to 310 CMR 7.00: Appendix C(8). (d) Comments on Proposed Decisions. If the Department provides a public comment period on the proposed decision, then any person or ten persons group may file written comments on the proposed decision during the public comment period provided by 310 CMR 7.00. Failure by an aggrieved person or ten persons group to submit written comments as provided herein shall result in the waiver of any right to request an adjudicatory hearing. Where the Department is not required under 310 CMR 7.00 to provide a public comment period on the proposed decision, then an aggrieved person or ten persons group is not required to submit public comments as a prerequisite for obtaining the right to request an adjudicatory hearing. (e) Copy of Department's Decision. Any person or ten persons group who wants to receive a copy of a decision on the date the Department issues the decision to the applicant shall submit a written request to the Department's contact person's electronic mail address and/or mailing address listed in the public notice. (d) Final Decision. The Department’s decision to issue an approval or disapproval is final either: 1. 22 days from the issuance date; or 2. If an aggrieved person or a ten persons group files a request for an adjudicatory hearing in accordance with 310 CMR 7.51(1)(h) within 21 days from the issuance date, then when the Commissioner issues a Final Decision pursuant to 310 CMR 1.01(14): Decisions. After the issuance of final decision, a stay of the final decision shall be governed by M.G.L. c. 30A, § 14. (g) Persons Who Have a Right to Request an Adjudicatory Hearing. The following persons shall have the right to request an adjudicatory hearing on the Department decision: 1. The applicant. 2. An aggrieved person who has submitted written comments in accordance with 310 CMR 7.51(1)(d), where applicable. 3. A ten persons group that has submitted written comments in accordance with 310 CMR 7.51(1)(d), where applicable. (h) Process for Requesting an Adjudicatory Hearing. 1. To request an adjudicatory hearing, a person who has the right to request an adjudicatory hearing shall file a notice of claim for an adjudicatory hearing pursuant to 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection within 21 days from the date of issuance. 2. The notice of claim for an adjudicatory hearing shall meet all the requirements contained in 310 CMR 1.01: Adjudicatory Proceeding Rules for the Department of Environmental Protection. An aggrieved person, or a ten persons group, shall send a copy of the request for an adjudicatory hearing by first class mail to the applicant and to the Department's contact person listed in the decision. 3. An aggrieved person who files a request for an adjudicatory hearing shall have the burden of proof to establish his or her status as an aggrieved person as defined in 310 CMR 7.00 and shall state with specificity in the request for adjudicatory hearing the basis of his or her claim of aggrievement and the relief sought. 4. A ten persons group that files a request for an adjudicatory hearing shall clearly and specifically state the facts and grounds for the appeal and the relief sought, and each person shall file an affidavit stating the intent to be a part of the group and to be represented by its authorized representative. (i) Limitation on Matters Raised In Request for Adjudicatory Hearing. 1. The issues that may be raised in a request for an adjudicatory hearing are limited to the subject matter of the Department’s decision. 2. If the Department provided a public comment period, the issues that may be raised in a request for an adudicatory hearing are further limited to the matters raised during the public comment period; provided, however, that a matter may be raised upon showing that it was not reasonably possible with due diligence to have raised such matter during the public comment period or for good cause shown. (2) Hearings on Facilities Regulated by the Department of Public Utilities. Upon receipt of a proposal for the construction, substantial reconstruction or alteration and subsequent operation of any facility regulated by the Department of Public Utilities, insofar as the facility may have an impact on air quality, the Department shall hold a public hearing prior to consideration for approval or disapproval of said facility. (3) Enforcement Provisions and Appeals of Certain Orders. (a) General. A person whose activities are governed by M.G.L. c. 111, §§ 142A through 142O and 310 CMR 7.00, or by M.G.L. c. 111, § 150A as it relates to 310 CMR 7.08(2), or by M.G.L. c. 21C or 21E as they relate to sections of 310 CMR 7.00 as cited therein, who fails to comply fully with the provisions of such statutes and regulations, or to comply fully with the terms and conditions of any order, permit, authorization, determination, or approval issued thereunder, or who acts without an order, permit, authorization, determination, or approval where one is required, shall be in violation of said statutes and 310 CMR 7.00. Nothing in 310 CMR 7.00, 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. Without limitation, whenever the Department has cause to believe that a violation has occurred, it may: 1. Order the owner or operator of a site or facility, and/or any other person responsible for the violation, to cease all illegal activity and comply fully with the provisions of M.G.L. c. 111, §§ 142A through 142O and 310 CMR 7.00, and M.G.L. c. 111, § 150A as it relates to 310 CMR 7.08(2), and M.G.L. c. 21C and 21E, and 310 CMR 7.00, and any order, permit, authorization, determination or approval; 2. Order the owner or operator of a site or facility, and/or any other person responsible for the violation, to take appropriate measures to come into compliance or to protect public health, safety or the environment; 3. Commence proceedings to rescind, suspend, revoke, or modify an order, permit, authorization, determination or approval; 4. Issue a notice of non-compliance pursuant to M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty; 5. Assess a civil administrative penalty pursuant to M.G.L. c. 21A, § 16 and 310 CMR 5.00: Administrative Penalty; and/or 6. Take such other action provided by 310 CMR 7.00 or other applicable statutory or regulatory authority as the Department deems appropriate. (c) 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 7.51(3)(b)1. or 2. according to any of the following procedures except for processes, notices, and orders issued in the course of an adjudicatory hearing which are governed by the provisions of 310 CMR 1.01 Adjudicatory Proceedings: 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, regular mail to the last known address, or other publication or method of delivery. The Department uses such alternative or substitute methods of service only when exigent circumstances require it doing so or when the person to be served declines to accept receipt or mail is returned from either of the service methods specified in 310 CMR 7.51(3)(c)1. and 2. The fact of service in such cases is established by such records as may be available. The date of service shall be 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. (d) Right to Request an Adjudicatory Hearing. Pursuant to M.G.L. c. 111, § 142B, a person who is the subject of an order issued pursuant to 310 CMR 7.51(3)(b)1. or 2. shall have the right to request an adjudicatory hearing on such order within ten calendar days of the date of service of the order by the procedures set forth herein 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 1.01 and 310 CMR 5.00: Administrative Penalty. (e) Waiver of Right to Request an Adjudicatory Hearing. Any person who is the subject of an order issued pursuant to 310 CMR 7.51(3)(b)1. or 2. shall be deemed to have waived the right to request an adjudicatory hearing unless within ten calendar days of the date of service of the order the Department receives a written statement setting forth the basis for the request for an adjudicatory hearing that complies with 310 CMR 1.01: Adjudicatory Proceedings.