Current through Register 1531, September 27, 2024
(1) Except as
provided by 220 CMR 69.10(2), if the Department finds, after reasonable notice
and opportunity for hearing in accord with 220 CMR 69.10(3), a particular
pipeline facility, LNG facility, or steam distribution facility to be hazardous
to life or property, it shall issue an order pursuant to 220 CMR 69.10
requiring the owner or operator of the facility to take corrective action.
Corrective action may include suspended or restricted use of the facility,
physical inspection, testing, repair, replacement, or other action, as
appropriate.
(2) The Department may
waive the requirement for notice and hearing under 220 CMR 69.10(1) before
issuing an order pursuant to 220 CMR 69.10 when the Commission or its designee
determines that failure to do so would result in the likelihood of serious harm
to life or property. However, the Department shall include in the order an
opportunity for hearing as soon as practicable after issuance of an order. The
provisions of 220 CMR 69.10(3)(a) apply to an owner or operator's decision to
exercise such an opportunity for hearing. The purpose of such a post-order
hearing is for the Department to determine whether the order should remain in
effect or be rescinded or suspended in accordance with 220 CMR
69.10(7).
(3)
Notice
and Hearing.
(a) Written notice
that the Department intends to issue an order under 220 CMR 69.10(3) shall be
served upon the owner or operator of an allegedly hazardous facility. The
notice shall allege the existence of a hazardous facility, stating the facts
and circumstances supporting the issuance of a hazardous facility order, and
providing the owner or operator an opportunity for a hearing, identifying the
time and location of the hearing.
(b) An owner or operator may exercise the
opportunity for a hearing under 220 CMR 69.10 by notifying the Department of
that election in writing within ten days of service of the notice provided
under 220 CMR 69.10(3)(a), or, when applicable, under 220 CMR 69.10(2). Absence
of such written notification waives an owner or operator's opportunity for a
hearing and allows the Department to proceed to issue a "hazardous facility
order" in accordance with 220 CMR 69.10(4) through (7).
(c) A hearing under 220 CMR 69.10 shall be an
adjudicatory proceeding as defined in M.G.L. c. 30A. The owner or operator of
the allegedly hazardous facility shall have the right to be represented by an
attorney at this hearing.
(d) If
the Department finds the facility to be hazardous to life or property, the
Department shall issue an order in accordance with 220 CMR 69.10. If it does
not find the facility to be hazardous to life or property, the Department shall
dismiss the allegations contained in the notice, and promptly notify the owner
or operator in writing.
(4) The Department may find a pipeline
facility, LNG facility, or steam distribution facility to be hazardous under
220 CMR 69.10(1):
(a) If, under the facts and
circumstances, the Department determines that the particular facility is
hazardous to life or property; or
(b) If the facility or a component thereof
has been constructed, operated, or maintained with any equipment, material or
technique which the Department determines is hazardous to life or property,
unless the operator involved demonstrates to the satisfaction of the Department
that, under the particular facts and circumstances involved, such equipment,
material or technique is not hazardous to life or property.
(5) In making a determination
under 220 CMR 69.10(4), the Department shall consider, if relevant:
(a) The characteristics of the pipe,
components, and other equipment used in the pipeline facility, LNG facility, or
steam distribution facility involved, including its age, manufacturer, physical
properties (including its resistance to corrosion and deterioration), and the
method of its manufacture, construction or assembly;
(b) The nature of the materials transported
by such facility (including their corrosive and deteriorative qualities), the
sequence in which such materials are transported, and the pressure required for
such transportation;
(c) The
aspects of the areas in which the facility is located, in particular, the
climatic and geologic conditions (including soil characteristics) associated
with such areas, and the population density and population and growth patterns
of such areas; and
(d) Such other
factors as the Department may consider appropriate.
(6) The hazardous facility order shall
contain the following information:
(a) A
finding that the pipeline facility, LNG facility, or steam distribution
facility is hazardous to life or property.
(b) The relevant facts which form the basis
for that finding.
(c) The legal
basis for the order.
(d) The nature
and description of particular corrective action(s) required of the
respondent.
(e) The date by which
the required action(s) must be taken or completed, and, where appropriate, the
duration of the order.
(f) If a
hearing has been waived pursuant to 220 CMR 69.10(2), a statement that an
opportunity for a hearing is provided at a particular location and at a certain
time after issuance of the order.
(7) The Department shall rescind or suspend a
hazardous facility order whenever it determines that the facility is no longer
hazardous to life or property.
(8)
At any time after an order issued under 220 CMR 69.10 has become effective, the
Department may request the Attorney General to bring an action for appropriate
equitable relief in the Supreme Judicial Court or the Superior Court, as
provided in M.G.L. c. 164, § 79.
