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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XVI PUBLIC HEALTH
  • CHAPTER 111 PUBLIC HEALTH
  • Section 150B Establishment of facility site

Section 150B. The definition of “facility” in section two of chapter twenty-one D shall apply to this section. Any such facility shall be subject to this section and not subject to section one hundred and fifty A.

No place in any city or town shall be established or maintained or operated by any person, including any political subdivision or agency of the commonwealth, as a site for a facility, unless such place has either been assigned by the board of health of such city or town as a site for a facility after a public hearing, subject to the provisions of any ordinance or by-law adopted therein under chapter forty A or corresponding provisions of earlier laws, or, in the case of an agency of the commonwealth, has been assigned by the department of environmental protection, in this section called the department after a public hearing and unless public notice of such assignment has been given by the board of health.

The assignment of a place as a site for a facility shall be subject to such limitation with respect to the extent, character and nature of operation thereof as will insure that the facility imposes no significantly greater danger to the public health or public safety from fire, explosion, pollution, discharge of hazardous substances, or other construction or operational factors than the dangers that currently exist in the conduct and operation of other industrial and commercial enterprises in the commonwealth not engaged in the treatment, processing or disposal of hazardous waste, but utilizing processes that are comparable. In assessing the significance and degree of danger, the board shall consider and evaluate such evidence as all interested persons may submit to it including, but not limited to, evidence comparing the procedures and practices proposed for the conduct and operation of a facility with the procedures and practices existing in the conduct and operation of other industrial and commercial enterprises in the commonwealth not engaged in the treatment, processing or disposal of hazardous waste which are conducted and operated in accordance with law and sound principles of modern engineering practice. The board of health shall notify the department upon receipt of an application to assign a place as a site for a facility. The department shall, upon request by the board of health, provide advice, guidance and technical assistance in reviewing the application. The department and a board of health may enter into such other cooperative arrangements in addition to those herein specified for the purpose of achieving a more effective and expeditious review of the application.

Every decision of the board of health in assigning or refusing to assign a place as a site for a facility shall be in writing and shall include a statement of reasons and the facts relied upon by the board in reaching its decision. The assignment of a place as a site for a facility shall be recorded in the registry of deeds, or if the land affected thereby be registered land, in the registry section of the land court wherein the land lies, before the construction, operation, or maintenance of the facility may commence.

Any person aggrieved by the action of a board of health in refusing to assign a place as a site for a facility may, within thirty days of the publication of notice of said decision, appeal to the superior court, which may affirm said decision of the board of health, remand the matter for further proceedings before the board of health, set aside or modify said decision, or order the board of health to take any action unlawfully withheld or unreasonably delayed if the court determines that the substantial rights of any party may have been violated because said decision violated constitutional provisions or was in excess of the statutory authority and jurisdiction of the board of health or was based upon an error of law or was made upon unlawful procedure or was unsupported by substantial evidence, or was arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law.

Any person aggrieved by the action of a board of health in assigning a place as a site for a facility may, within thirty days of the publication of notice of such assignment, appeal to the department from the assignment of the board of health. Upon such appeal or upon the department’s own initiative, the department may, after due notice and public hearing, rescind or suspend such assignment or modify the same by the imposition or amendment of terms, restrictions, conditions and requirements.

Upon determination that the maintenance and operation of a facility has resulted in a significant danger to public health or is not in compliance with the terms, restrictions, conditions and requirements established for its maintenance and operation in an assignment made pursuant to the provisions of this section, said assignment may be rescinded or suspended or may be modified through the imposition or amendment of terms, restrictions, conditions and requirements at any time after due notice and a public hearing by the board of health where such facility is located, upon its own initiative or upon complaint by any person aggrieved by such assignment, or by the department upon its own initiative or upon complaint by any person aggrieved by said assignment. Every such rescission, suspension or modification shall be in writing and shall include a statement of reasons and the facts relied upon by the board of health or the department in taking such action.

Any person aggrieved by the action of the board of health or the department in rescinding, suspending or modifying an assignment may, within thirty days of publication of notice or such rescission, suspension or modification of said assignment, appeal to the superior court, which may affirm said rescission, suspension or modification, remand the matter for further proceedings, set aside or modify said rescission, suspension or modification, order any action unlawfully held or unreasonably delayed if the court determines that the substantial rights of any party may have been violated because said rescission, suspension or modification violated constitutional provisions or was in excess of statutory authority and jurisdiction or was based upon an error of law or was made upon unlawful procedure or was unsupported by substantial evidence or was arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law.

The department shall adopt, and may from time to time amend rules and regulations, and the commissioner may issue orders, to enforce the provisions of this section. Any person, including any political subdivision of the commonwealth, who fails to operate and maintain a facility in accordance with the provisions of this section or in accordance with any rules, regulations, or orders hereunder promulgated (a) shall be punished by a fine of not less than one hundred nor more than twenty-five thousand dollars, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b), shall be subject to a civil penalty not to exceed twenty-five thousand dollars for each violation. Each day’s failure to comply with said provisions, rules, regulations or orders shall constitute a separate violation.

The superior court shall have jurisdiction in equity to enforce the provisions of this section upon petition of the department or any aggrieved person.

This section and section one hundred and fifty A shall not apply to any hazardous waste facility exempt from the licensing requirements of chapter twenty-one C, which was lawfully organized and in existence on May first, nineteen hundred and eighty, or to any hazardous waste facility which was licensed as such by any division of the department as of May first, nineteen hundred and eighty. If any facility has its license revoked and reapplies for a license after May first, nineteen hundred and eighty, the provisions of this section shall apply to said reapplication; provided, however, that the provisions of this section shall not apply to any facility, or the operation of any facility under receivership by a federal or state agency or by a judicially appointed and supervised receiver of any court of competent jurisdiction where the license of the facility has been suspended or revoked and said receivership has been imposed.

This section and section one hundred and fifty A shall not apply to any generator who stores, treats, processes, or disposes of any hazardous waste produced exclusively on-site; provided, however, that this section shall apply to any such generator who disposes of hazardous waste into or on the land. For purposes of this section, “on-site” shall be defined to mean the same or geographically contiguous property in single ownership which may be divided by public or private right-of-way; provided, however, that the entrance and exit between the properties is at a crossroads intersection, and access is by crossing as opposed to going along the right-of-way; as well as noncontiguous properties owned by the same person but not connected by a right-of-way which such person controls and to which the public does not have access.

Notwithstanding any provisions of this section to the contrary, this section shall apply to the increase of capacity to store, treat, or dispose of any particular type of hazardous waste, unless such increase of capacity was approved by the department pursuant to chapter twenty-one C prior to the effective date of this paragraph, or unless an existing site assignment established pursuant to the requirements of this section provides for the conditions under which such increase of capacity shall be permitted.