Section 19.038 - Review Criteria for a New or Expanded Facility Permit or Permit Modification(1)Applicability of Permitting Criteria. The criteria the Department shall apply when reviewing a permit application or an application for a permit modification are as follows: (a)New or Expanding Landfills. A permit application for a new landfill or landfill expansion submitted pursuant to 310 CMR 19.032 shall comply with the criteria set forth at 310 CMR 19.038(2)(a), (c) and (d).(b)New or Expanding Combustion Facility. A permit application for a new or expanding combustion facility submitted pursuant to 310 CMR 19.032 shall comply with the criteria set forth at 310 CMR 19.038(2)(a) and (b).(c)New or Expanding Handling Facility. A permit application for a new or expanding handling facility submitted pursuant to 310 CMR 19.032 shall comply with the criteria set forth at 310 CMR 19.038(2)(a)1. through 11., 13. and 14., and (b).(d)Modification of a Landfill, Combustion Facility and or Handling Facility. An application submitted pursuant to 310 MR 19.033 or 19.034. as applicable, for a modification of a landfill, combustion facility or handling facility not addressed at 310 CMR 19.038(1)(a), (b), (c), or (e) shall comply with the criteria set forth at 310 CMR 19.038(2)(a)1. through 12., except 310 CMR 19.038(2)(a)12. does not apply to a handling facility.(e)Post-closure Use. A permit application submitted pursuant to 310 CMR 19.033 or 19.034, as applicable, for the post-closure use of a facility shall comply with the criteria set forth at 310 CMR 19.038(2)(a)1., 3., 4., 6., 8., and 10.(2)Criteria for Review of Applications for a Permit or Permit Modification. (a)General Criteria. In accordance with the provisions of 310 CMR 19.038(1) the Department shall consider whether the following criteria are met when reviewing an application for a permit or permit modification: 1. the applicant has received certification from the Secretary of Environmental Affairs that the applicant has complied with M.G.L. c. 30, §§ 61 through 62H (MEPA) process;2. the facility is located within the boundaries of a valid site assignment and is proposed to be constructed, operated and maintained in accordance with the terms and conditions of that site assignment;3. the design, construction, operation, and maintenance of the facility and its environmental monitoring systems are in compliance with requirements set forth in 310 CMR 19.000, and such policies as the Department establishes governing solid waste management facilities;4. the design, construction, operation, and maintenance of the facility constitutes a threat to the public health, safety or the environment;5. on a site on which the Department determines it infeasible to adequately conduct appropriate environmental monitoring, no leachate or contaminated surface run off shall enter ground or surface waters;6. the facility design and operation includes components and measures which will assure compliance with other applicable state and federal laws, regulations and policies, including without limitation, 314 CMR 3.00 through 12.00 (water pollution control); 310 CMR 22.00: Drinking Water and 27.00: Underground Water Source Protection (water supply); 310 CMR 7.00: Air Pollution Control (air quality); and 40 CFR 257 and 258;7. the facility is in compliance with the waste bans established at 310 CMR 19.017;8. violations of applicable statutes and regulations, judicial orders or administrative order or conditions of a prior plan approval/permit issued by the Department are corrected, and any fines and penalties associated with any of the above, which are related to the site or facility have been paid or are pending administrative or judicial appeal;9. the construction, operation and maintenance of the facility does not represent a bird hazard;10. the ground support for the structural components of the facility is adequate;11. whether the construction, operation, and maintenance of the facility:a. will have an adverse impact on Endangered, Threatened, or Special Concern species listed by the Natural Heritage and Endangered Species Program of the Division of Fisheries and Wildlife in its database;b. will have an adverse impact on an Ecologically Significant Natural Community as documented by the Natural Heritage and Endangered Species Program in its database; orc. will have an adverse impact on the wildlife habitat of any state Wildlife Management Area.12. the yearly and lifetime capacity potentially created by the proposed facility or expansion in relation to the reasonably anticipated disposal capacity requirements and reduction/diversion goals of the Commonwealth and the geographic area(s) which the site will serve;13. the extent to which the facility operations, alone or in conjunction with other facilities, maximizes diversion or processing of each component of the anticipated waste stream in order to first reduce adverse impacts and utilize materials and only thereafter to extract energy from the remaining solid waste prior to final disposal; and14. the extent to which the facility operations, alone or in conjunction with other facilities, will contribute to the establishment and maintenance of a statewide integrated solid waste management system which will protect the public health and environment and conserve the natural resources of the Commonwealth.(b)Combustion Facilities and Handling Facilities. In addition to the criteria set forth under 310 CMR 19.038(2)(a), the Department shall consider whether the following criteria are met when reviewing an application for a permit or permit modification for combustion facilities and handling facilities site assigned before June 8, 2001. Facilities or expansions of facilities site assigned in accordance with the criteria at 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities that were promulgated on or after June 8, 2001 shall comply with the siting criteria of that site assignment: 1. the construction, operation and maintenance of the facility, if located or proposed to be located in a Zone II area or Interim Wellhead Protection Area does not result in an adverse impact to an existing or potential public or private water supply well;2. the waste handling areas are not within the following distances unless, as applicable, a waiver has been obtained under 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities or a variance is obtained under 310 CMR 19.080: a. 100 feet of the nearest edge of the property boundary, provided that a shorter distance consistent with the necessary operating and maintenance requirements of the facility may be approved for that portion of the waste handling area which borders a solid waste management facility;b. 250 feet of an existing or potential private water supply well;c. 250 feet of an occupied residential dwelling, prison, bedded health care facility, lower educational institution or children's pre-school, excluding equipment storage or maintenance structures, if a solid waste handling facility, and 500 feet if a solid waste combustion facility;d. a resource area protected by the Wetlands Protection Act, M.G.L. c. 131, § 40, and the regulations promulgated thereunder at 310 CMR 10.00: Wetlands Protection, including the 100 year floodplain;e. 500 feet upgradient or 250 feet downgradient of a surface drinking water supply.(c)Landfills. In addition to the criteria set forth under 310 CMR 19.038(2)(a) the Department shall consider whether the following criteria are met when reviewing an application for a permit or permit modification for a landfill site assigned before June 8, 2001. Facilities or expansions of facilities site assigned in accordance with the criteria at 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities that were promulgated on or after June 8, 2001 shall comply with the siting criteria of that site assignment: 1. the landfill is not located: a. in the Zone II area of an existing or potential public water supply well;b. within 15,000 feet upgradient of an existing public water supply well unless a preliminary Zone II determination has been completed and approved by the Department and the Department determines that the landfill is not located in the Zone II area;c. in the Interim Wellhead Protection Area of an existing or potential public water supply well, unless a preliminary Zone II delineation has been approved by the Department and the Department determines that the landfill is not located in the Zone II area;d. in the recharge area for a sole source aquifer, unless:i. there are no existing or potential public ground water supplies downgradient of the site;ii. there are no existing or potential private ground water supplies downgradient of the site; however, the applicant may have the option of providing an alternative public water supply to replace all the existing or potential downgradient private groundwater supplies; andiii. there is a sufficient existing or potential public water supply to meet the municipality's projected needs.2. the leachate containment structure of a landfill shall not be located within a resource area protected by the Wetlands Protection Act, M.G.L. c. 131, § 40, including the 100 year floodplain;3. the outermost limits of the waste deposition area for new landfills or expansions of landfills shall not be within the following distances unless, as applicable, a waiver has been obtained under 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities or a variance has been obtained under 310 CMR 19.080: a. 100 feet of the nearest edge of the property boundary, provided that a shorter distance consistent with the necessary operating and maintenance requirements of the facility may be approved for that portion of the waste deposition area which borders a solid waste management facility;b. 500 feet of a private water supply well;c. 500 feet of an occupied residential dwelling, bedded health care facility, prison or lower educational institution or children's pre-school, excluding equipment storage or maintenance structures;d. a resource area protected by the Wetlands Protection Act, M.G.L. c. 131, § 40, and the regulations promulgated thereunder at 310 CMR 10.00: Wetlands Protection, including the 100 year floodplain;e. 2500 feet upgradient or 500 feet downgradient of a surface drinking water supply;f. 250 feet upgradient of a perennial watercourse that drains to a surface drinking water supply where the landfill is within one mile of the surface drinking water supply; org. 250 feet of a lake, pond or river (not including a stream) as defined in 310 CMR 10.00: Wetlands Protection, other than a drinking water supply; or(d)Additional Landfill Criteria. In addition to the criteria set forth at 310 CMR 19.038(2)(a) and (c), the Department shall consider whether the following criteria, in reviewing an application for a permit or a modification for a landfill, have been met:1. the landfill does not represent a threat to public health, safety or the environment due to concentration or migration of explosive gases, excluding gas control or recovery system components, at the facility or beyond the facility property boundary;2. the landfill is not located in a seismic impact zone unless all containment structures are designed to resist the maximum horizontal acceleration in lithified earth material for the site;3. the landfill is not located in an unstable area unless engineering measures have been incorporated into the landfill's design to ensure the integrity of structural components, including but not limited to liners, leachate collection systems and final covers, will not be disrupted. The owner or operator shall consider the following factors, at a minimum, when determining whether an area is unstable: a. on-site or local soil conditions that may result in significant differential settling;b. on-site or local geologic or geomorphologic features; andc. on-site or local human-made features or events (both surface and subsurface); and4. the landfill is not located within 200 feet (60 meters) of a fault that has had displacement in Holocene time unless the owner or operator demonstrates that an alternative setback of less than 200 feet will prevent damage to the structural integrity of the landfill.