Section 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 150A½, 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 150A½ 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; andb. 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; or10. 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; orc. 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; orb. 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; or4. take such other action provided by 310 CMR 16.00 or 310 CMR 19.000: Solid Waste Management or other applicable statutory or regulatory authority as the Department deems appropriate.(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; and5. 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: (a) if the activity conducted pursuant to 310 CMR 16.03, 16.04 or 16.05 is conducted on the landfill footprint, then the owner and operator shall also comply with 310 CMR 19.039: Applicant's Request to Modify a Permit; and(b) the activity conducted pursuant to 310 CMR 16.03, 16.04 or 16.05 will be conducted consistently with the solid waste management facility's site assignment and will not adversely impact the solid waste management facility.(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.c. at least 180 days prior to the transition deadline, if 310 CMR 16.01(12)(a)1. and 2. do not apply, submit a renewal application that complies with 310 CMR 16.05 to the Department.(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.