Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 16.00 - Site Assignment For Solid Waste Facilities
Part III - APPLICATION FEE
Section 16.30 - Fees
Universal Citation: 310 CMR 16.00 MA Code of Regs 16.30
Current through Register 1531, September 27, 2024
(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:
1. Technical Fee; and
2. Public Hearing Fee.
(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 Review
1.
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;
and
h. 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
Assistance
1.
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;
and
c. photographic or graphic
expertise.
(e)
Extraordinary
Expenses
1.
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; and
b. the applicant has failed to provide such
evidence upon request by the Hearing Officer; and
c. the evidence cannot be acquired without
the expenditure by the board of health of funds in excess of the Technical Fee;
and
d. the evidence did not exist
or was not reasonably discoverable through due diligence by the board of health
prior to the request; or
e. 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; or
b. 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
Fees
1.
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; and
5. 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; and
2. 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; or
2. 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; or
2. 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.
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