310 CMR, § 16.20 - Public Hearing Rules

(1) Preamble. "Public Hearings" pursuant to M.G.L. c. 30A are not "Adjudicatory Proceedings" within the meaning of M.G.L. c. 30A, § 1. See M.G.L. c. 30A, § 2. Pursuant to M.G.L. c. 111, § 150A, however, "for the limited purpose of appeal from such public hearings, a local board of health shall be deemed to be a state agency under the provisions of M.G.L. c. 30A and its proceedings and decision shall be deemed to be a final decision in an adjudicatory proceeding". The public hearing process is designed to permit the flexibility and informality appropriate to the board of health proceeding, while providing the board of health with procedural direction and the authority to create a record and render a decision within a limited time period which is amenable to the procedures and the standards of judicial review applicable under M.G.L. c. 30A, § 14.

(2) Applicability. 310 CMR 16.20, governs the conduct of public hearings by a board of health on a Site Assignment Application following the issuance of a Report by the Department finding that a proposed site is a suitable for a specified type(s) of solid waste facility(ies), as required by M.G.L. c. 111, § 150A.

(3) Public Hearing Definitions. The following words when used in 310 CMR 16.20, shall, except as otherwise required by context, have the following meaning:

Abutting Board of Health means a board of health of a municipality located within 1/2 mile of a boundary of the proposed site.

Applicant means person named in the application as the owner of a property interest in the site and the operator of the proposed facility where the owner has entered into an agreement with an operator at the time the application is filed.

Authorized Representative means individual authorized by a party to represent him in these matters.

Decision means final decision rendered by the board of health.

Hearing Officer means an individual(s) duly designated by the board of health to conduct the public hearing.

Papers means all written communications filed in the public hearing, including motions and other documents.

Party means the applicant, any abutting board(s) of health and any abutter(s), group of ten citizens or other intervenor duly registered pursuant to 310 CMR 16.20(9)(b).

Person(s) means a private person, firm, or corporation, or any federal, state, or local governmental or other entity which is not an agency.

Subpoena means a document which commands a witness to appear at a given time and give testimony before a court or an administrative proceeding such as a hearing; and may require the witness to produce before the hearing tribunal any documents, papers, or records in his possession or control.

(4) Representation

(a) Appearance. An individual may appear on his own behalf. A duly authorized officer or employee may represent a corporation; an authorized member may represent a partnership or joint venture; and an authorized trustee may represent a trust. Any Party in the public hearing shall have the right to be accompanied, represented and advised by an authorized representative.

(b) Notice of Appearance. An appearance shall be made in the public hearing by filing a written notice with the board of health or Hearing Officer. Such notice shall contain the names, address and telephone number of the authorized representative.

(5) Time

(a) Timely Filing. Papers required or permitted to be filed under 310 CMR 16.20, or any provision of the applicable law must be filed at the board of health office or such other place as the board shall designate within the time limits for such filing as are set by 310 CMR 16.20 or the Hearing Officer. Papers filed in the following manner shall be deemed to be filed as set forth herein:

1. Hand-Delivery during business hours shall be deemed filed on the day delivered.

2. Hand-Delivery during times other than during regular business hours shall be deemed filed on the next regular business day.

3. Mailing in U.S. Mail shall be deemed filed on the date so postmarked.

All papers shall show the date received by the board and the board shall cooperate in giving date receipts to Persons filing papers by hand-delivery.

(b) Notice of Board of Health Actions. Communications concerning public hearings pursuant to 310 CMR 16.00 from the board or the Hearing Officer shall be presumably deemed received upon the day of hand-delivery or if mailed three days after deposit in the U.S. mail.

(c) Computation of Time. Unless otherwise specifically provided by law or 310 CMR 16.20, computation of any time period referred to in 310 CMR 16.20 shall begin with the first day following the act which initiates the running of the time period. The last day of the time period so computed is to be included unless it is a Saturday, Sunday, or legal holiday or any other day on which the office of the board is closed, in which event the period shall run until the end of the next following business day. When the time period is less than six days, intervening days when the board is closed shall be excluded in the computation.

(d) Extension of Time. It shall be within the discretion of the board or Hearing Officer, for good cause shown, to extend any time limit contained in 310 CMR 16.20. All requests for extension of time shall be made by motion before the expiration of the original or previously extended time period. This discretion shall not apply to any limitation of the time prescribed by the Massachusetts General Laws.

(6) Filings Generally

(a) Title. Papers filed with a board shall state the report number, the title of the proceeding, the name of the Person in whose behalf the filing is made and the name of the applicant.

(b) Signatures. Papers filed with a board shall be signed and dated by the Party on whose behalf the filing is made or by the Party's Authorized Representative. This signature constitutes a certification by the signer that he has read the document, knows the content thereof, and that such statements are true, that it is not interposed for delay and that if the document has been signed by an Authorized Representative that he has full power and authority to do so.

(c) Form. Size and printing requirements. All Papers, except those submittals and documents which are kept in a larger format during the ordinary course of a Party's business, shall be hand-printed or typewritten on paper 8 to 81/2 inches wide, by 11 inches long. Mimeographed, multigraphed, photo duplicated Papers will be accepted as hand-printed or typewritten. All papers shall be clear and legible.

(d) Copies. The original of all Papers shall be filed together with two copies.

(e) Service. Simultaneously with all filings of any and all Papers with the board, the Party filing such Papers shall send a copy thereof to all other Parties to the proceedings, by delivery in hand, or by United States mail, postage prepaid, properly addressed. All papers filed with the board shall be accompanied by a statement signed under the pains and penalty of perjury that copies have been sent, specifying the mode of service date, the Party to whom sent, the Party's address, and address of service. Failure to comply with this rule shall be grounds for refusal by the board to accept Papers for filing.

Any Party may request a waiver of the requirement of 310 CMR 16.20(6)(e). The Hearing Officer may grant the request if significant expense or waste of resources would be avoided and if adequate arrangements can be made for access to the Papers by all persons who would otherwise be entitled to service of a copy.

(7) Initiation of Hearings.

(a) Commencement. The board shall commence a public hearing pursuant to 310 CMR 16.40 within 30 days of receipt of the Department's Report On Suitability (Report).

(b) Public Notice. At least 21 days prior to commencement of the public hearing the board shall notify all parties identified at 310 CMR 16.08(2) of the hearing, by certified mail, and cause notice of the public hearing to be published. Such notice shall be published in daily or, if not possible, weekly newspapers of general circulation in the municipality. Where the municipality has a population of greater than 15% of residents that do not speak English as their primary language, the board of health shall publish an additional notice in a daily or weekly newspaper(s) circulated in that community written in the primary language(s) of those residents.

(c) Form and Content. The notice shall give the date, time and location of the public hearing, a description of the proposed facility including the type of facility, proposed disposal tonnage, proposed hours of operation, the identity and mailing address of the applicant; the public location within the community and hours where the application may be inspected; the time period for written comment on the application to the board and the address to which comments should be mailed. In addition the notice shall contain the following statement: "The Department of Environmental Protection has issued a Report in which it determines that the above described place is a suitable place for the proposed facility. Copies of the Department's Report On Suitability and the site suitability criteria ( 310 CMR 16.00) are available for copying and examination along with the application."

(8) Examination of Record Below; Discovery

(a) Availability of the Record. The Report, the application, and all comments received by the Department on the application are public records and shall be made available by the board for inspection and copying by any person during reasonable business hours. The board may charge reasonable copying fees for any of the documents comprising the record below. There shall be no additional discovery.

(b) Prefiled Direct Testimony. The Hearing Officer may, on his/her own motion, order all Parties to file within a reasonable time in advance of the public hearing full written text of the testimony of their witnesses on direct examination on issues pertinent to site assignment, including all exhibits to be offered into evidence, or on issues specified by the Hearing Officer. Such testimony shall be filed by or before a time specified by the Hearing Officer and shall be available to examination and copying as provided in 310 CMR 16.20(8)(a). The Hearing Officer may also require the filing of written rebuttal testimony within a reasonable time after the filing of the direct testimony described in the preceding sentence. All testimony filed pursuant to this rule shall be subject to the penalties of perjury. All witnesses whose testimony is filed pursuant to this rule shall appear at the hearing on the merits and be available for further examination or cross-examination at the discretion of the Hearing Officer. If a witness is not available for further examination or cross examination at the hearing on the merits, the written testimony of the witness shall be excluded from the record unless the Parties agree otherwise.

(9) Intervention and Participation.

(a) Intervention. Any Person who with good cause wishes to intervene in a public hearing shall file a written request (petition) for leave to intervene. Persons whom the Hearing Officer determines are specifically and substantively affected by the hearing shall be allowed to intervene. For the purpose of the Public Hearing the following persons shall be considered to be specifically and substantively affected by the hearing and shall be eligible to register as a Party to the hearing:

1. Abutters. Any abutter or group of abutters to the proposed facility shall be a Party to the hearing by timely submission of a Party Registration Statement in accordance with 310 CMR 16.20(9)(b).

2. Ten Citizens Groups. Any group of ten or more persons may Register collectively as a Party to the public hearing in which damage to the environment, as defined in M.G.L. c. 214, § 7A, or public health and safety are or might be at issue; provided, however, that such intervention shall be limited to the issues of impacts to public health, safety and damage to the environment and the elimination or reduction thereof in order that any decision in the public hearing shall include the disposition of such issue.

(b) Registration. The registration of an abutter, group of abutters or ten citizen groups as a Party or the petition of a person to be an intervenor to the public hearing shall be valid only if submitted prior to the commencement of the hearing. The registration statement shall be signed under pains and penalty of perjury and contain the following information:

1. name and address of the registrant(s);

2. proposed party status (abutter, group of abutters, ten citizen group or intervenor);

3. identity of the Authorized Representative, if any;

4. for individuals wishing to register as an abutter a description of the abutting property including its boundaries and current use and a statement that the registrant is the owner of the parcel; and

5. for individuals or groups of individuals petitioning to be an intervenor a statement indicating how they will be substantially and specifically affected by the proposed facility.

If no Authorized Representative is identified in the Registration Statement the first person mentioned in the Statement as a member of the group shall be deemed the Authorized Representative of the group. Said Authorized Representative shall have the sole authority to sign submissions by the group. A group that registers as a Party shall be collectively deemed a Party and shall have the rights of participation of a Party as set forth in 310 CMR 16.20, except as limited by 310 CMR 16.20(9).

(c) Rights of Intervenors. Any person permitted to intervene shall have all rights of, and be subject to, all limitations imposed upon a Party, however, the Hearing Officer may exclude repetitive or irrelevant material. Every Petition to intervene shall be treated as a petition in the alternative to participate.

(d) Rights of Participants

1. Any person specifically affected by a proceeding shall be permitted to participate. Permission to participate shall be limited to the right to present testimony, to argue orally at the close of the public hearing and to file a brief. Permission to participate, unless otherwise stated, shall not be deemed to constitute an expression that the person allowed to participate is a party in interest who may be aggrieved by any final decision.

2. Participants shall not be required to submit to cross examination except upon the determination of the Hearing Officer that cross examination is necessary in the interest of a full and fair hearing and an adequate record. Such cross examination of participants shall be conducted through the Hearing Officer. Failure of a Participant to submit to cross examination allowed by the Hearing Officer shall be grounds to strike the Participant's statements.

(10) Conduct of Public Hearing.

(a) Public Hearings, Where Held. Hearings shall be held at a public meeting hall, appropriately sized to accommodate all Parties and the number of persons reasonably anticipated to attend in the city or town where the site is located. The public hearing shall continue until it is closed by the Hearing Officer. Arrangements by the board to provide a place for such public meeting shall anticipate that the public hearing may extend for several days.

(b) General. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. The applicant shall be the party to first proceed to introduce evidence and testimony except as ordered by the Hearing Officer.

(c) Decorum. All Parties, Authorized Representatives, witnesses and other persons present at the public hearing shall conduct themselves in a manner so as not to obstruct or delay the orderly presentation of evidence and issues. Where such decorum is not observed, the Hearing Officer may take appropriate action.

(d) Hearing Officer. The Hearing Officer shall define issues, receive and consider relevant and reliable evidence and exclude irrelevant evidence, ensure an orderly presentation of the evidence and issues, and aid the board in reaching a decision based on the evidence presented at the hearing and in accordance with the standards set forth in M.G.L. c. 111, § 150A.

(e) Rights of Parties. All Parties shall have the right to present evidence, cross-examine, make objections and make oral arguments. Cross-examination shall occur immediately after any witness' testimony has been received. Whenever appropriate, the Hearing Officer may permit redirect and recross.

(f) Evidence and Testimony

1. A witness' testimony shall be under oath or affirmation.

2. All evidence and testimony, materials and legal rules on which a decision is to be based must be entered into the Record of the public hearing, unless excluded pursuant to 310 CMR 16.20(8)(b), or (10)(f)3.

3. Witnesses giving testimony shall be available for such further examination or cross examination as is determined to be appropriate by the Hearing Officer. Failure of a witness to be so available may be grounds to strike any other testimony given by such witness from the record at the sole discretion of the Hearing Officer. The Hearing Officer may limit or exclude unduly repetitious or irrelevant evidence. The Report and the Department Record shall not constitute testimony for the purposes of 310 CMR 16.20

4. All documents and other evidence offered in evidence shall be open to examination by the Parties.

5. All evidence including any records, investigative reports, documents and stipulations which are to be relied upon in making a decision must be offered and made a part of the Record. Documentary evidence may be in the form of copies or excerpts, or by incorporation by reference.

(g) Administrative Notice. The Hearing Officer or the board of health may take notice of any fact which may be judicially noticed by the courts, and in addition may take notice of general, technical or scientific facts within their specialized knowledge. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. The board may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.

(h) Subpoenas. No subpoenas may be issued or enforced requiring the attendance and testimony of a witness or the production of documents at the public hearing.

(i) Transcript of Proceedings. Testimony and argument at the hearing shall be either recorded electronically or stenographically. Transcripts of the proceedings shall be supplied to any Party, upon request, at his own expense. Any Party, upon motion, may order a stenographer to transcribe the proceedings, at his own expense. In such event, a stenographic record shall be provided to the board or Hearing Officer at no expense to the board, and upon such other terms as the board or Hearing Officer shall order.

(j) Contents of Record. The record of the proceedings shall include the Department's Report On Suitability and accompanying Record, the Department of Public Health report, if any, and shall in addition, consist of the following items appropriate to the hearing: pleadings, prehearing conference memoranda, magnetic tapes, orders, briefs, and memoranda, transcripts, exhibits and other papers or documents which the Hearing Officer has specifically designated be made part of the record.

(k) Decision.

1. Time of Decision. The board shall render its decision within 45 days of the initial date of the public hearing.

2. Standard of Decision. A board shall determine that a site is suitable for assignment as a site for a new or expanded solid waste facility unless it makes a finding, supported by the record of the hearing, that the siting thereof would constitute a danger to the public health, safety or environment, based on the siting criteria set forth and established under 310 CMR 16.40.

3. Tentative Decisions. Tentative decisions shall not be issued as a matter of routine, but shall be issued only if a Party requests a tentative decision either in writing or orally on the record, prior to the close of the hearing on the merits; or if the board determines that a tentative decision should be issued in the interest of justice. Every tentative decision shall be in writing and shall be signed by a majority of those officials of the board who rendered the decision. Every tentative decision shall contain a statement of the reasons therefor, including a determination of fact pertaining to each of the site suitability criteria listed in 310 CMR 16.40 or law necessary to the decision. If the majority of the board who must sign the final decision have personally heard or read the evidence, the board shall not be required to comply with a request to issue a tentative decision.

4. Final Decision. Every final decision shall be in writing and shall be signed by a majority of those officials of the board who rendered the decision. Every final decision shall contain a statement of the reasons therefore, including a determination of fact pertaining to each of the site suitability criteria listed in 310 CMR 16.40 or law necessary to the decision, provided that if a final decision was preceded by a tentative decision, the final decisions may incorporate by reference those determinations set forth in the tentative decision, subject to such modifications and discussion as the Hearing Officer or board may deem appropriate to respond to timely filed opposing and concurring views with the tentative decision.

(11) Selection and Qualification of Hearing Officer

(a) The Hearing Officer shall be selected by majority vote of the board of health.

(b) The person selected to be the Hearing Officer shall be impartial and have the requisite qualifications to properly perform the duties and responsibilities of a Hearing Officer. Except as agreed to by the parties and a majority of the board of health, no person shall be a Hearing Officer who:

1. is related to any board member, abutting board of health member, party, abutter, or applicant;

2. is a current or former employee or agent of the applicant or of the municipality where the proposed site is located or a municipality of an abutting board of health prior to selection as Hearing Officer. Notwithstanding the aforesaid, a person who has previously served as a Hearing Officer is not excluded from subsequent service as a Hearing Officer;

3. has a personal financial interest or at the time of selection or at any time during the proceedings be employed by any person having a financial interest in the board's decision on site suitability; or

4. does not have experience by training or practice in conducting administrative or judicial proceeding's.

(c) Duties. The Hearing Officer's duties shall include:

1. opening and closing the hearing;

2. establishing the order of the proceedings;

3. ensuring that only reliable and relevant testimony is introduced;

4. assisting all those giving testimony to make a full and free statement of the facts in order to bring all information necessary to determine whether a site is suitable or not suitable;

5. ensuring that all Parties have an opportunity to present their claims orally or in writing and to present witnesses and evidence relevant to the suitability or non-suitability of the site;

6. ensuring that participants have an opportunity to present evidence, whether orally or in writing, relevant to the suitability or non-suitability of a site;

7. introducing into the record any regulations, statutes, memoranda or other materials he believes relevant to the issues at the proceeding;

8. receiving, ruling on, limiting or excluding evidence pursuant to 310 CMR 16.20(10)(f); and

9. establishing a date and time following the close of hearing until which time written evidence will be received, considered and made part of the record.

Where procedural issues arise regarding the conduct of the hearing which are not governed by 310 CMR 16.20 the Hearing Officer may rely on 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure, to resolve such issues.

(d) Powers. The Hearing Officer's powers shall include the authority to:

1. request a statement of the issue or issues and define the relevant issues;

2. regulate the presentation of the evidence and the participation of the Parties or their representatives, or the participation of other Persons, for the purpose of ensuring an adequate and comprehensible record of the proceedings. To this end the Hearing Officer may conduct his own examination of witnesses, may require that all examination or cross examination of witnesses be directed through the Hearing Officer, through some other person, or by any other means or method of examination or cross examination of witnesses as he determines is appropriate to ensure full examination of the issues; and

3. regulate the presentation of the evidence and the participation of the Parties or their representative or the participation of other Persons for the purpose of ensuring that the public hearing is concluded in a timely manner to allow the board to render a written decision within 45 days of the commencement date of the public hearing. To this end the Hearing Officer shall impose such time restrictions and limitations on oral presentations as he deems appropriate.

(12) Imposition of Conditions The board may include in any decision to grant a site assignment such limitations with respect to the extent, character and nature of the facility or expansion thereof, as may be necessary to ensure that the facility or expansion thereof will not present a threat to the public health, safety or the environment.

(13) Notice of Decision.

(a) Incorporation into the Record. Upon its issuance, the decision shall be incorporated into the Record and made available for inspection and copying as set forth in 310 CMR 16.20(8)(a).

(b) Time of Notice. Within seven days of issuance of its decision the board shall publish notice of its decision in the same manner as set forth in 310 CMR 16.20(7)(b).

(c) Content of Notice. The nature of decision shall identify the applicant, briefly describe the proposed facility, including its location, and set forth the board determination. The notice shall include the following provision: "Any person aggrieved by the decision of the board of health may, within 30 days of publication of this Notice of Decision appeal under the provisions of M.G.L. c. 30A, § 14".

Notes

310 CMR, § 16.20