(1) Wherever
expressly provided by
310
CMR 40.0000, any person who is aggrieved by a
permit decision of the Department, or order issued pursuant to M.G.L. c. 21E,
§ 9, may request an adjudicatory hearing before the Department.
(2) Each request for a hearing must be sent
to the Docket Clerk of the Department by certified mail or hand-delivered
within 21 days of the date of issuance of the decision being appealed. A copy
of the request shall be sent by certified mail or hand delivered simultaneously
to:
(a) the Chief Municipal Officer for the
municipality where the disposal site is located;
(b) the regional office of the Department
that issued the decision or order; and
(c) where the person aggrieved by a decision
is a Permit Applicant who is appealing a permit decision, pursuant to
310
CMR 40.0770, such person shall also
simultaneously send, by certified mail or hand delivery, a copy of the request
for an adjudicatory hearing to each person who provided public
comment.
(3) Any person
who appeals a decision or order who is neither the applicant nor the person to
whom such an order was issued is required to simultaneously send a copy of the
hearing request by certified mail or by hand to the applicant. For purposes of
310
CMR 40.0000, an aggrieved person is any
person who is entitled to become a party or intervene in the proceeding under
310 CMR
1.00: Adjudicatory
Proceedings.
(4) Each
request for a hearing submitted pursuant to 310 CMR 40.0050 shall state clearly
and concisely the facts which are grounds for the proceeding, in what manner
the person, in whose name the request is made, is aggrieved and the remedy that
is being sought. The appropriate filing fee required under
310 CMR
4.00: Timely Action Schedule and Fee
Provisions shall be sent to the Department in the manner required
therein.
(5) Where an applicant is
seeking a decision from the Department, the applicant has the burden of
establishing, on the basis of credible evidence from a competent source, such
facts as are necessary to meet the conditions and criteria set forth in the
applicable provisions of
310
CMR 40.0000.
(6) Where an aggrieved person is someone
other than the applicant, the aggrieved person has the burden of establishing
on the basis of credible evidence from a competent source, such facts as are
necessary to meet the conditions and criteria set forth in applicable
provisions of
310
CMR 40.0000.
(7) The filing of an appeal shall not prevent
the Department from issuing any future orders or taking any other action the
Department reasonably deems necessary to respond to a release or threat of
release of oil or hazardous material, including, but not limited to, taking or
arranging one or more response actions at the site or location which is the
subject of the appeal.
(8) The
following determinations shall not be subject to an adjudicatory hearing:
(a) a decision whether to issue an order
pursuant to M.G.L. c. 21E, § 10;
(b) a decision whether to issue a Notice of
Responsibility to any person pursuant to
310
CMR 40.0160(1);
(c) a decision whether to issue a Notice of
Intent to Take a Response Action pursuant to
310
CMR 40.0160(2);
(d) a decision whether to issue a Request for
Information pursuant to
310
CMR 40.0165;
(e) a decision whether to establish Interim
Deadlines pursuant to M.G.L. c. 21E, § 3A(j) and
310
CMR 40.0167;
(f) a decision whether to authorize site
access pursuant to M.G.L. c. 21E, § 8, and
310
CMR 40.0173;
(g) a decision whether to develop an
administrative record in accordance with
310
CMR 40.1300;
(h) a decision whether to audit a specific
site to determine whether such site is in compliance with M.G.L. c. 21E,
310
CMR 40.0000, and any other law administered
or enforced by the Department;
(i)
a decision whether to initiate enforcement action against any person under
M.G.L. c. 21E and/or
310
CMR 40.0000;
(j) a decision regarding a petition for
reimbursement of costs under
310
CMR 40.1260;
(k) a decision whether to initiate Compliance
Assistance under
310
CMR 40.1100;
(l) a decision whether to issue a Technical
Assistance Grant;
(m) a decision
upon administrative review of a demand for payment of Response Action Costs in
accordance with
310
CMR 40.1220(3);
(n) any decision to suspend, revoke or refuse
to renew any permit, authorization, approval, including, but not limited to,
any Waiver of Approvals, or similar form of permission required by M.G.L. c.
21E and/or the MCP, where:
1. DEP is expressly
not required by the General Laws to grant a hearing; or
2. DEP is required by law to take such action
without exercising any discretion in the matter on the basis of a court
conviction or judgment; or
3. such
action is based solely upon failure to file timely reports, schedules or
applications, or to pay lawfully prescribed fees;
(o) any decision contained in a Notice of
Audit Findings at the conclusion of an audit, provided, however, that any
Notice of Intent to Assess a Civil Administrative Penalty or order accompanying
such notice or issued following issuance of a Notice of Audit Finding shall be
subject to an adjudicatory hearing;
(p) any decision to designate one or more
disposal sites or response actions as a Special Project in accordance with
310
CMR 40.0026;
(q) any Reclassification of a Tier lA
disposal site made in accordance with
310
CMR 40.0583;and
(r) any other determination, decision,
authorization or approval under M.G.L. c. 21E and/or
310
CMR 40.0000 for which an adjudicatory hearing
is not required by M.G.L. c. 30A, unless expressly required by
310
CMR 40.0000.
