(1)Application Fees(a)General. The Application Fee is a fee which is paid by an applicant to the board of health. The board of health may use the fee for eligible costs of reviewing technical data, obtaining technical assistance and conducting a public hearing. The Application Fee shall be assessed as two separate fees: (b)Excess Fees. The board of health shall return to the applicant any of the Application Fee in excess of the actual expenditures for allowable costs following the completion of the site assignment process.(c)Alternative Systems. The board of health may establish, in lieu of part or all of 310 CMR 16.30, another system for the assessment and payment of an Application Fee provided such system is agreed to by the applicant.(d) Nothing in 310 CMR 16.30 creates or modifies any rights of boards of health relative to the assessment or collection of fees under applicable statutes, by-laws, or ordinances governing municipal finance.(2)Technical Fee.(a)General. The Technical Fee may be used by the board of health to cover the cost of conducting a review of technical data and/or to cover a portion of the cost of other technical assistance.(b)Assessment of Fee.1.Assessment. The board of health, upon the receipt of an application, may assess by a written notice to the applicant a Technical Fee for said application not to exceed the maximum amount set forth in 310 CMR 16.99.2.Form of Payment. The board shall prescribe the amount of the fee and the manner of payment in writing to the applicant within ten days of the filing of the application in accordance with 310 CMR 16.08.3.Payment. The applicant shall pay the Technical Fee in the amount and manner prescribed by the board of health.4.Waiver. The board of health may waive all or a portion of the Technical Fee. Any such waiver shall be made in writing to the applicant.5.Absence of assessment or waiver. In the absence of an assessment or waiver of the Technical Fee by the board of health in accordance with 310 CMR 16.30(2)(b)1., 2. or 4., the applicant may satisfy the Technical Fee payment requirements by making a payment in the form of a certified or bank check or money order, in an amount equal to the maximum Technical Fee for the appropriate facility as specified in 310 CMR 16.99.(c)Technical Review1.General. The Technical Fee may be expended for 100% of the allowable cost of reviewing technical data submitted to the board of health.2.Allowable costs. Allowable costs for technical review include the cost of hiring consultants and related technical experts to assist the board of health in reviewing the application, the Department Report on Suitability, the Department of Public Health's Report and comments, public comments and any subsequent amendments or additions to the application.3.Allowable tasks. Allowable tasks for the consultants and related technical experts include:a. determining completeness and accuracy of data in the application;b. determining whether the correct analytical techniques were used, whether valid data were obtained, and whether the data support the proposed conclusions;c. determining what other data should be obtained, the means to obtain it and its potential significance;d. examining municipal, Department and other relevant records and consulting with Department staff;e. visiting the site to make a visual inspection;f. preparing and submitting comments to the Department on technical issues relating to the site and the site suitability criteria;g. reviewing the Department Report on Suitability and other data submitted prior to and during the hearing; andh. preparing a written report of comments and determinations.4.Excluded Costs. Allowable costs for technical review shall not include the cost of conducting site, environmental or population sampling and analyses, otherwise generating new data, or performing independent analyses of environmental health impacts. These costs may qualify as allowable costs for technical assistance in accordance with 310 CMR 16.30(d)2.(d)Technical Assistance1.General. The Technical Fee may cover 50% of the cost of providing expert legal, scientific or engineering assistance to the board of health to assure that all points of view are adequately presented and evaluated at the public hearing.2.Allowable costs. Allowable costs for technical assistance include the cost of hiring consultants, technical experts or legal counsel. Allowable types of technical assistance include: a. legal counsel to represent the board of health at the hearing and to examine witnesses at the hearing;b. scientific and/or engineering experts to help develop evidence, question witnesses and/or testify at the hearing; andc. photographic or graphic expertise.(e)Extraordinary Expenses1.Assessment. After commencement of the public hearing, pursuant to the requirements of 310 CMR 16.20, the board of health may assess in writing, an additional Technical Fee payment when the following conditions are satisfied:a. the evidence proposed to be obtained by the expenditure of the fee is likely to be critical to the determination of site suitability; andb. the applicant has failed to provide such evidence upon request by the Hearing Officer; andc. the evidence cannot be acquired without the expenditure by the board of health of funds in excess of the Technical Fee; andd. the evidence did not exist or was not reasonably discoverable through due diligence by the board of health prior to the request; ore. the evidence is based on new scientific or technical standards or criteria which were previously unavailable.2.Payment or Appeal. The applicant upon receipt of the written request may: a. within three days appeal to the Hearing Officer for a determination as to the appropriateness and reasonableness of the fee assessment; orb. make the appropriate payment as prescribed by the board of health within ten days.3.Hearing Officer's Decision on Appeals. a.Standard of Decision. The Hearing Officer shall determine that an extraordinary expense request is reasonable only if she or he finds that the conditions in 16.30(2)(e)1. are satisfied.b.Decision by the Hearing Officer. The Hearing Officer shall issue a written determination to the applicant and the board of health. When the Hearing Officer determines the assessment is reasonable the applicant shall make the appropriate payment as directed by the board of health within six days. When the Hearing Officer determines the assessment is not reasonable the applicant shall not be required to make the payment.4.Non-payment. The board of health may withhold final disposition of the site assignment application until the applicant submits the payment or issue a determination based on the available information.(3)Public Hearing Fee.(a)General. The board of health may use the Public Hearing Fee to cover the cost of conducting a public hearing that meets the requirements of 310 CMR 16.20.(b)Assessment and Payment of the Public Hearing Fee. The board of health, upon the receipt of a Department Report on suitability that contains a finding that a site is suitable, may assess a Public Hearing Fee.1.Initial Public Hearing Fee Assessment. a.Assessment. The board of health shall prescribe to the applicant in writing the amount and manner of payment of the initial public hearing fee assessment.b.Maximum Amount. The maximum amount of the initial assessment shall be 50% of the maximum allowable Technical Fee for the appropriate size and type of facility, as set in 310 CMR 16.99.c.Payment. The applicant shall pay the initial public hearing fee assessment as prescribed by the board of health within 15 days of receipt of the written request from the board.2.Additional Public Hearing Fee Assessments. a.General. In the event that the initial Public Hearing Fee assessment is insufficient to cover the allowable costs described in 310 CMR 16.30(3)(d) the board of health may require additional Public Hearing Fee payments.b.Assessment. The board of health shall prescribe to the applicant, in writing, the amount and manner of payment of the additional public hearing fee assessments.c.Payment. The applicant shall pay the additional assessment within six days of receipt of the written request from the board of health.3.Fee Waiver. The board of health may waive all or a portion of the Public Hearing Fee.(c)Non-payment of Fees1.Suspension of Hearings. In the event that any fee assessment is not paid as required, the board of health may suspend the public hearing, or, in the case of the initial payment, delay the opening of the public hearing.2.Resumption of Hearings. Any hearing delayed or suspended because of non-payment of fees shall be commenced or resumed within seven days of receipt of payment or resolution of a fee dispute in accordance with 310 CMR 16.30(6).3.Exception. When the applicant is the municipality itself or an agency thereof, the public hearing shall not be delayed or suspended because of non-payment of any public hearing fee assessment.(d)Allowable Costs. The only allowable costs that may be paid from the Public Hearing Fee are: 1. the cost of any notice required under 310 CMR 16.20;2. the cost of recording, through a stenographic record, tape recording, or other means as determined by the Hearing Officer the record of the proceedings;3. the cost of having a Hearing Officer perform the duties set forth in 310 CMR 16.20;4. the cost of producing any copies required under 310 CMR 16.20; and5. the cost of renting a hall, chairs and/or public address system when the municipality has no such facilities or equipment which are adequate for the purpose of the public hearing. Transcription of the proceedings shall not be paid for from the Hearing Fee except by order of the Hearing Officer prior to a final decision on site assignment by the board of health. The cost of transcribing or otherwise preparing an official transcript for appeal shall not be paid by the Public Hearing Fee.
(4)Expenditure of the Application Fee(a)General. All expenditures of the Application Fee shall be reasonable. The amount paid for any service shall not exceed the usual and customary amount for such service.(b)Obligation of Funds. The board of health shall not spend or enter into obligations to spend any or all of the Technical Fee without a scope of work. The scope of work shall detail proposed contractor's services and include cost estimates for each service and describe whether the proposed service is for technical review or technical assistance.(c)Record Keeping. The board of health shall make and retain or require all persons paid from the Application Fee to make and retain written records which set forth: 1. a description of each of the services performed and work products developed; and2. the amount expended for each such service or work product.(d)Production of Records. The board of health, upon written request from the applicant, the Hearing Officer or the Department, shall provide or cause their contractor to provide, within a reasonable time not to exceed 14 days, a copy of said records.(e)Cessation of Expenditures. The board of health shall not spend any additional amount of the Application Fee and shall make reasonable efforts to halt all work on any activities that would be covered by the Application Fee, when the board of health receives either:1. a Department Report on Suitability that finds a site not suitable; or2. a notice from the applicant withdrawing the application from consideration.(5)Reimbursement of Unexpended Fees(a)Request for Reimbursement. After a final decision on the application or upon the withdrawal of an application, the applicant may submit a written request to the board of health to provide a final accounting of all funds expended or owed from the Application Fee and to return all unexpended and uncommitted funds. For the purpose of 310 CMR 16.30, a final decision shall be either: 1. the Department Report on Suitability finding a site to be not suitable; or2. a determination by the board of health to assign a site or to refuse to assign a site after a public hearing.(b)Accounting. The board of health shall provide a full accounting of all expenditures within 45 days of receipt of the request.(c)Reimbursement. The board of health shall return the unencumbered funds within a reasonable time period.(6)Fee Disputes(a) The board of health shall expend and, if applicable, reimburse to the applicant all fees in accordance with the requirements of 310 CMR 16.30.(b) Any claims by the applicant against the board of health for improper disposition of fees shall be adjudicated in a court of competent jurisdiction or, if mutually agreed upon by the parties, by arbitration or mediation. Preamble
310 CMR 16.40 establishes the criteria and decision making process the Department shall utilize in determining whether a site is suitable for a proposed solid waste management facility and upon which boards of health shall base a determination to grant or refuse to grant a site assignment.