Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 7.00 - Air Pollution Control › Section 7.51 - U Hearings Relative to Orders and Approvals

Current through Register 1525, July 5, 2024
(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.
(f)
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.