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Commissioner's Directive on Time Limits and Timelines for Adjudicatory Appeals
1) PURPOSE The purposes of this Directive are to:
a) Achieve efficient, expeditious and fair resolution of adjudicatory appeals;
b) Avoid backlogs of adjudicatory appeals;
c) Adopt the specific recommendations of the Administrative Hearing Reform Advisory Committee, as outlined in their Final Report, dated December 28th, 1993;
d) Further effectuate and implement the Commissioner's Directive in Management of Adjudicatory Appeals, dated February 18th, 1994, with specific reference to Section 2(a) of that Directive, relating to the institution of time limits in adjudicatory hearings;
e) Provide guidance to Administrative Law Judges ("ALJs") and the parties in the application of similar provisions in the revised Department of Environmental Protection ("Department") rules for adjudicatory proceedings, 310 CMR 1.01;
f) Supersede the Commissioner's Directive in Mandatory Timelines, dated July 7th, 1995, and reissue Mandatory Case Flow Timelines.
g) Conform Department procedures with the Commissioner's Directive Concerning Adjudicatory Proceedings conducted pursuant to M.G.L. c. 30A.
2) APPLICABILITY All Department staff and other persons involved in the adjudicatory hearing process are instructed to comply with this Directive.
3) TIMELINE Consistent with the above purposes, the Commissioner's Directive in Mandatory Timelines for Adjudicatory Hearings, dated March 1st, 1993, is superseded, and a mandatory 12 month case flow timeline, attached hereto, is established for all cases, except those: designated major and complex pursuant to paragraph 6 below; which may require an enlargement of time to obtain physical evidence that is temporarily unavailable due to seasonal conditions; granted expedited status pursuant to paragraph 9 below; where all parties have agreed to an enlargement of timelines; or where the ALJ, with the approval of the Chief ALJ, determines that an enlargement of time is in the interest of efficiency and fairness.
4) PRESUMPTIVE LIMITS ON PRESENTATIONS Also consistent with the above purposes, with an assessment of the Department's actual experience in hearings, particularly during recent Wetland backlog reduction effort, and with the above-mentioned adjudicatory rules, the following presumptive limits are hereby established for all cases, subject to the ability of the ALJ to vary these limits pursuant to the criteria set out in 310 CMR 1.01 (13) (d), (e) and (f).
a) The overall time for hearings should not exceed one day per party;
b) The number of witness generally should not exceed two witnesses per party;
c) The length of prefiled direct testimony should not exceed 15 pages per witness, excluding exhibits;
d) The lengths of final briefs and other legal memoranda should not exceed 15 pages, excluding exhibits;
e) The length of final decisions and decisions on motions should not exceed 15 pages;
f) Individual time limitations on cross examination of witnesses may be set at the prehearing conference or prior to the opening of the hearing, consistent with the time, number of witnesses and page length as established in a), b) and c) above, but attorneys or other authorized representatives shall be forewarned to plan and budget their time per witness accordingly, and that failing to do so will not be considered good cause for varying time limits pursuant to 310 CMR 1.01 (13) (d), (e) and (f);
g) Groups of aligned parties are generally subject to the above numerical limits, except when important differences in responsibility or representation justify a variation therefrom.
5) ALJ AUTHORITY Administrative Law Judges are authorized and directed to establish specific limits in all cases, consistent with paragraph 4 above. Limits identified in paragraph 4 (a) - (e) above shall be established at the prehearing conference or at a continuance thereof if allowed by the ALJ and assented to by all parties. Limits identified in 4 (f) above may be set at the prehearing conference or prior to the opening of the hearing.
6) MAJOR AND COMPLEX CASES The presumptive limits and mandatory timelines referenced in paragraphs 2 and 4 shall not apply in cases which are designated "major and complex" by the Commissioner or her designee, based on the complexity or novelty of the issues, magnitude of the project, potential for environmental harm or benefit, Constitutional considerations or other relevant consideration. In such major and complex cases, an individual timeline and limits consistent with paragraphs 2 and 4 should still be established by the ALJ, but they should not follow the mandatory timelines or presumptive limits and should be evaluated and established on a case by case basis, also subject to variation for good cause shown, consistent with 310 CMR 1.01 sec.13 (d), (e) and (f) and this Directive. A request to the Commissioner or her designee to designate a case as "major and complex" shall be made not later than the date of the prehearing conference.
7) TRANSCRIPTS In cases designated major and complex pursuant to paragraph 6 above or granted expedited status pursuant to paragraph 9 below, the party or parties requesting such designations shall be responsible for retaining and paying the costs of a court stenographer, including the costs of providing transcripts to all parties, except in cases where fairness may require a different allotment of costs, pursuant to 310 CMR 1.01 (13) (m) (1).
8) SIMPLIFIED HEARING In cases where parties have elected a simplified hearing pursuant to 310 CMR 1.01(8)(a), the overall time for the hearing should not exceed 2.5 hours per party, subject to variation for good cause shown, consistent with 310 CMR 1.01 sec.(13) (d) and this Directive. The hearing date shall not be more than 30 days from the date of the agreement to vary the procedures of M.G.L. c. 30A sec.11 was filed. The final decision shall be issued not more than 30 days from the date of the hearing.
9) EXPEDITED CASES A case may, in the discretion of the Commissioner or her designee, be scheduled for hearing out of chronological order pursuant to the Department's policy on expedited cases.
Approved: Lauren A. Liss
Commissioner
Date: December 29, 2000
CASE HANDLING TIME LINE
Appeal Filed
1.5 months
Prehearing Conference Order Sent
1.5 months
Prehearing Conference Held
4 months
Hearing Held
2 weeks
Hearing Record Closes
3.5 months
Decision Issued |
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