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Commissioner's Directive Concerning Adjudicatory Proceedings - April 23, 2004 1. PURPOSE.
The purpose of this Directive is to ensure the efficient, timely, and fair resolution of all adjudicatory appeals the Department of Environmental Protection during and after the physical move of the Executive Office of Environmental Affairs ("EOEA") Administrative Law Judges ("ALJs") (now known as "Administrative Magistrates") from DEP's Offices where they were previously housed, to the Offices of the Division of Administrative Law Appeals ("DALA"), and to set out the DEP's pre-screening process.
2. APPLICABLE REGULATIONS, POLICIES, DIRECTIVES, AND GUIDANCE DOCUMENTS.
All applicable statutes, regulations, policies, Commissioner's directives, and/or guidance documents that apply to the Department and the Office of Administrative Appeals will continue to apply to the adjudicatory proceedings in the same manner that each had been applied, respectively, after January 20, 2004 and until such time as these are expressly changed by statutory, regulatory, directive, policy, and/or guidance change, respectively.
3. FILINGS.
All new adjudicatory appeals will continue to be directed to the Docket Clerk at DEP, 1 Winter Street, 3rd Floor, Boston, MA 02108. All filings in any appeal that is in the Initial Review of the Pre-Screening Process at DEP will continue to be directed to the Docket Clerk at DEP, 1 Winter Street, 3rd Floor, Boston, MA 02108.
The practice of accepting faxed filings will continue and those faxed filings will be considered timely if received by DEP no later than 5:00 p.m. of the last date established for the filing. The DEP Docket Clerk's phone number is 617-556-1003; the DEP Docket Clerk's fax number is 617-556-1064.
All filings in any appeal that has been forwarded to DALA pursuant to this Directive should be directed to the Docket Clerk at DALA, 98 North Washington Street, 4th Floor, Boston MA 02114. The practice of accepting faxed filings will continue and those faxed filings will be considered timely if received by DALA no later than 5:00 p.m. of the last date established for the filing. The phone number for DALA is 617-727-7060 x 226; fax number is 617- 727-7248.
4. HEARING COMPLETE BUT RECOMMENDED DECISION NOT ISSUED BY JANUARY 20, 2004 OR DISPOSITIVE MOTION PENDING.
For those appeals where the hearing has been conducted and the record is complete but no Recommended Final Decision has been issued, the cases will remain assigned to the same EOEA Administrative Magistrates as was assigned before the physical move on January 20, 2004. That Administrative Magistrate will issue a Recommended Final Decision as per the current routine practices and procedures.
If such Administrative Magistrate is not available, DALA will reassign the case for Recommended Decision upon the record pursuant to 310 CMR 1.01(14)(c). DALA may order a re-hearing, in whole or in part, as it deems necessary (e.g., where credibility of material witness on an issue is necessary for decision).
For those appeals where an Administrative Magistrate has issued a Recommended Final Decision and submitted it to the Commissioner, the Commissioner will act on those appeals as per the Department's routine practice and procedures.
5. HEARING LOCATION.
Prehearings, hearings, motion arguments, and status conferences will be located either at DALA or the Department's Hearing Room or other meeting/conference room available at its Boston or Regional Offices. The Department will make the Hearing Room or other meeting/conference room available in consultation with DALA.
6. PRE-SCREENING PROCESS.
INITIAL REVIEW: The Commissioner will designate a hearing officer(s) pursuant to 310 CMR 1.00 to promote the interest of securing a just and speedy determination of every appeal and to further effectuate 310 CMR 1.01. Edna Travis, or any other person designated by the Commissioner as a hearing officer has the power to (1) prescreen appeals and determine their potential amenability to settle through alternative dispute resolution and early resolution through motions to dismiss; (2) order parties to prosecute their appeal by attending prescreening conferences and provide requested documentation in support of their positions; (3) conduct simplified hearings under 310 CMR 1.00; and (4) issue recommended final decisions for the routine dismissals of appeals, including, but not limited to, where there is a.) the filing of a stipulation of dismissal voluntarily dismissing the notice of Claim under 310 CMR 1.01(11)(d)1; b.) the withdrawal of the notice of claim; c.) mootness of the underlying claim; d.) a lack of jurisdiction over the subject matter of the appeal, e.) a lack of jurisdiction due to untimeliness, lack of standing, failure to state a claim on which relief can be granted, or because the notice of claim purports to appeal an unappealable document.; and f.) lack of prosecution for failure to attend a prescreening or otherwise comply with an order.
PROCEEDINGS AT DALA: The Department's hearing officer will docket for further proceedings at DALA those appeals not dismissed through the Initial Review process. DALA will issue an acknowledgement of receipt to the parties, directing parties on DALA's filing procedures and contacts. Questions may be directed to Chief Administrative Magistrate Chris Connolly at 617-727-7060 x 226. DALA will assign an Administrative Magistrate to complete the administrative appeal process, culminating in the issuance of a Recommended Final Decision, which will be transmitted to all parties and the Commissioner for his/her review. The Commissioner will issue the Final Agency Decision or Remand Decision to DALA, as appropriate, for distribution to the parties.
The Administrative Magistrate handling appeals transferred to DALA for further administrative process may continue to issue routine Final Decisions in accordance with Standing Order 1-97.
SETTLEMENT PROCESS: At any time in the adjudicatory hearing process, any written agreement by the parties to dispose of an appeal by stipulation, settlement, or consent order shall be submitted to the Department's hearings officer for approval prior to forwarding to the Commissioner for Final Decision. In addition, if an appeal is docketed for further administrative proceedings at DALA, a copy of such agreement will be filed with the DALA Administrative Magistrate assigned to the appeal and any schedule for adjudicatory proceedings will be suspended pending approval of the agreement, in an effort to conserve resources.
Any such previously filed written agreement that an Administrative Magistrate has not yet forwarded to the Commissioner for Final Decision may be copied and resubmitted by any of the parties to the Department's hearings officer for approval prior to forwarding to the Commissioner for Final Decision.
7. DECISIONS.
Pursuant to the Commissioner's Directive on Adjudicatory Proceedings Conducted Pursuant to M.G.L. c.30A, signed November 8, 2000, the Administrative Magistrate shall sign and date his or her Recommended Final Decision, and send a copy of his or her Recommended Final Decision to all parties in the case within three (3) business days after it is transmitted to the Commissioner.
8. COMMISSIONER.
The Commissioner shall continue to approve and sign every Final Decision of the agency, except where the Commissioner designates another to do so in his place. The Commissioner will issue the Final Agency Decision (or Remand Decision to DALA for further adjudicatory proceedings, as appropriate). If a Final Decision differs from the Recommended Final Decision, the Commissioner shall provide an appropriate statement of his reasons in accordance with 310 CMR 1.01(14)(b).
Approved: Robert W. Golledge, Jr., Commissioner
Dated: April 23, 2004
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