Guide About the MassDEP Appeals Process

Learn more about the adjudication of appeals through the Office of Appeals and Dispute Resolution (OADR).

OADR Overview

The Office of Appeals and Dispute Resolution (“OADR”) is responsible for receiving all adjudicatory appeals of MassDEP’s permitting and enforcement decisions.  The OADR is a separate and independent office of MassDEP’s program offices, Regional Offices, and Office of General Counsel (“OGC”).  OADR is staffed by Case Administrators, an Administrator of Alternative Dispute Resolution (“ADR”), and Presiding Officers. 

Presiding Officers in OADR are experienced attorneys at MassDEP appointed by MassDEP’s Commissioner to serve as neutral hearing officers.  They are responsible for facilitating settlement discussions between the parties, holding pre-hearing conferences, conducting adjudicatory hearings to resolve appeals pursuant to 310 CMR 1.00 in a neutral, fair, timely, and sound matter based on the governing law and facts of the case.

Additionally, OADR Presiding Officer issue Recommended Final Decisions in appeals, which are subject to review by MassDEP’s Commissioner pursuant to 310 CMR 1.01(14).  Under the regulation, the Commissioner may issue a Final Decision adopting, modifying, or rejecting a Recommended Final Decision.  All Final Decisions may be subject to judicial review pursuant to G.L. c. 30A, § 14.

The Office also leads the Department's Alternative Dispute Resolution (ADR) Program and ADR Committee, coordinating dispute resolution services for adjudicatory appeal cases and other matters for the agency. Through the agency's ADR Committee, the Office provides outreach and training for department staff to increase the agency's capacity to use various dispute resolution tools, including mediation, fact-finding and negotiation.

Key Actions for OADR Overview

Appeals: Frequently Asked Questions

How does an appeal begin?

An adjudicatory hearing begins with the submission of a request for an adjudicatory hearing (or notice of claim) to the Office of Appeals and Dispute Resolution. A request for an adjudicatory hearing must be filed with the OADR within the time prescribed by any applicable provision of law. Check the provisions of law applicable to the document being appealed. If there is no specific prescribed time period, a notice of claim must be filed within 21 days from the date that the notice of Department action was sent. Consult the document being appealed for detailed information and instructions.

A $100 fee must be paid for each appeal. There is a reduced fee of $25 if you are requesting a simplified hearing. If the person requesting an adjudicatory hearing is a town, a municipal agency, a county or a municipal housing authority, there is no fee. For more information on the adjudicatory hearing filing fee and the grounds on which the Department may waive the fee, see 310 CMR 4.06.

Failure to pay the appeals filing fee may be grounds for dismissal of the notice of claim.

 

What information must be included in a request for a hearing?

A number of requirements may apply, depending on the document you wish to appeal. The adjudicatory hearing rules specify the general information you must include in a request for an adjudicatory hearing, and individual program regulations have separate requirements. Check the following sources:

  1. The permit, order or penalty assessment notice being appealed. Look for the statement of appeal rights, usually at the end of the document.
  2. The MassDEP Adjudicatory Hearing Regulations; see, in particular, 310 CMR 1.01(6)(b), which requires among other things that a copy of the appealed document be included with the request for an appeal. The request must also include sufficient facts to demonstrate the requester's status as aggrieved person, abutter, ten resident group, etc., and demonstrate previous participation, where required.
  3. The substantive regulations that apply. For example:
    • For wetlands permit appeals (appeals of superseding orders of conditions or superseding determinations of applicability), see 310 CMR 10.05(7)(j).
    • For waterways license appeals, see 310 CMR 9.17(3).
    • For 401 water quality certification appeals, see 314 CMR 9.10(3).
    • For civil administrative penalty appeals, see 310 CMR 5.35.

 

Can I view the record or find out the current status of an appeal?

The administrative record of an appeal may be viewed by making an appointment with the Case Administrator by telephone at (617) 556-1003 or by email at Caseadmin.oadr@state.ma.us to view a record or inquire about the status of a pending appeal.

 

Can I speak to the Presiding Officer assigned to my appeal (or to an appeal in which I am a party)?

The Adjudicatory Proceeding Rules prohibit "ex parte" communications, or private communications, between a Presiding Officer and a party to an appeal without all other parties being present. See 310 CMR 1.03(7). You may communicate with a Presiding Officer by filing a written motion or request that is served on all of the other parties, or by participating in a telephone conference, live conference or hearing at which all the other parties are present. 

 

How long does the adjudicatory appeal process take?

The Department strives to resolve appeals within one year of receiving the request for adjudicatory hearing. The Commissioner's Directive on timelines includes a timeline for completing the various stages of an appeal.

 

Where can I get copies of adjudicatory appeals decisions?

Copies of Recommended Final Decisions and Final Decisions can be sent electronically, when available, by sending a e-mail request to the Case Administrator at Caseadmin.oadr@state.ma.us. Paper copies of individual decisions can be obtained from the MassDEP Case Administrator at a cost of 20 cents per page. If you e-mail, write, or call for a copy of a decision, please provide the Case Administrator with the name of the appeal (e.g., Matter of John Smith), the docket number, the name of the decision (e.g., "Final Decision" or "Decision and Order on Motion to Intervene") and the date of the decision, or as much of this information as you have.

 

Are MassDEP appeals decisions published?

MassDEP publishes its decisions to the OADR website.

DALA publishes Recommended Final Decisions it issues for MassDEP.

Decisions are also published commercially in hard copy and electronically by several law publishers. Some of these publications may be available at public libraries. The publishers are:

  1. Lexis/Nexis. Lexis publishes MassDEP decisions electronically for its subscribers in its "MA Environmental Administrative Decisions" database.
  2. Social Law Library, 1200 Court House, Boston, MA 02108. The Social Law Library publishes MassDEP adjudicatory decisions electronically, as part of its "Massachusetts Administrative Law Library on CD-ROM" database, and on line in its SLL Online Administrative Database.
  3. Landlaw, Inc., 374 Boylston St., Brookline, MA 02146. Landlaw publishes MassDEP adjudicatory decisions in a looseleaf format, beginning with decisions issued in 1994, in the DEP Reporter (DEPR).

 

Where can I get the procedural rules for adjudicatory appeals?

The MassDEP Adjudicatory Proceeding Rules, 310 CMR 1.01, can be viewed and downloaded here. A paper copy of the Rules can be purchased at the Massachusetts State Bookstore . The Rules are part of the Code of Massachusetts Regulations (CMR). Some public libraries have complete sets of the CMR.

 

I filed a motion. How long does another party have to file a response?

A party may file and serve a response to a written motion within 7 business days after the motion is filed, see 310 CMR 1.01(11)(a)1 and 1.01(3)(c). If the motion seeks summary decision, a party may file and serve a response within 14 days after the motion is filed, see 310 CMR 1.01(11)(a) and (11)(f). In some circumstances, however, the Presiding Officer can act on a motion without awaiting a response, e.g., if the other parties consent to the relief that the motion seeks, if the motion was not served properly, if the motion is "non-adversarial or routine," or if the motion is frivolous. See 310 CMR 1.01(11)(a)2. If your motion seeks routine or emergency relief, you should try to get the consent of all of the other parties. If you get their consent, mention this fact in your motion.

 

Does the office accept filings by email?

OADR encourages electronic filings via e-mail at Caseadmin.oadr@state.ma.us, See 310 CMR 1.01 (4)(f). Electronic filings must include the date of transmission, and the telephone number or electronic address used for transmittal, as well as the mode of service, the date of service and name and address of the parties to whom it was sent. Service must also be made on the other parties in the case. OADR recommends using a "certification" function with an email message to obtain confirmation of delivery.

 

What will happen to my appeal in the pre-hearing process?

A Presiding Officer at MassDEP will review your notice of claim to check for required information and submittals. He or she will then issue a Scheduling Order with a pre-hearing conference date and adjudicatory hearing date. A pre-hearing conference will be held where the parties may discuss the issues raised in the appeal and the potential use of alternative dispute resolution techniques (including mediation, fact finding and negotiation). The Presiding Officer may also decide early motions to dismiss based on lack of standing, lack of jurisdiction, or mootness, or order the parties to submit additional information in the screening stage of an appeal. See 310 CMR 1.01(5)(a) 15.

 

Can I settle my case without a hearing?

Parties may agree to resolve the issues in a case at any time. When all parties agree to resolve the issues in an adjudicatory proceeding by stipulation, settlement or consent order, the written agreement must be submitted to the Department with a copy provided to the Presiding Officer. See 310 CMR 1.01(8)(c).

 

How can my case be mediated?

Mediation is a voluntary process, and the Department cannot force parties to participate in mediation. However, a Presiding Officer can require the parties to attend an Alternative Dispute Resolution information session. See 310 CMR 1.01(8)(b). Should all the parties agree to participate in mediation, the Department has employees who are qualified mediators who are available to mediate appeals.

Alternative Dispute Resolution

What is mediation?

Mediation is a voluntary, confidential & flexible process that helps parties to a dispute fashion their own resolution to the conflict, usually reflected in a settlement agreement.

 

What is the confidentiality of the process?

Confidentiality is protected by Mass. General Law c.233, Section 23C.

 

Who are the mediators?

The mediators at MassDEP are employees qualified to mediate through an accredited mediation training program, and have been appointed to provide mediation services on the MassDEP mediation panel.

 

What are the advantages of mediation?

Time savings
Mediation can be scheduled immediately, subject to the schedules and agreement of the parties. In contrast, full adjudicatory hearings generally take one year to reach final decision.

Cost savings
Mediation can be cheaper than litigation. There is no requirement for written expert testimony, cross examination or the filing of legal briefs, so mediation usually costs considerably less than an adjudicatory hearing.

Control
Mediation puts the parties in control of the outcome. Mediation also puts settlement negotiations on an organized schedule that is often lacking when preparing for a hearing.

Neutrality
The mediators are in every sense "neutral." The mediator does not represent any party to the proceeding. A mediator from the MassDEP mediator panel is a Department employee, but does not represent, advocate for or make decisions for the Department or any other party in a mediation. Usually a MassDEP mediator works in a different office or program from the office or program involved in the case being mediated.

Flexibility
Although the mediator will help to craft an agreement consistent with applicable laws, issues are not limited to MassDEP jurisdiction if the parties need to discuss other pertinent matters that are relevant to the settlement. Mediation is non-binding until the parties agree to a settlement they can all accept. Parties can stop mediation at any time and resume the adjudicatory hearing process. Persons other than parties with legal standing to the environmental dispute can also participate if the parties agree.

Compliance
Because the parties have input to the design of settlement agreements achieved through mediation, those agreements can more accurately reflect their needs. Research has shown that parties show greater satisfaction with agreements they design, due to a feeling of "ownership." As a result, mediated agreements have been shown to have a high level of compliance.

Preservation of important relationships
Mediation can often help to preserve ongoing relationships where litigation does not. Mutual gains can be maximized, and issues can be addressed in mediated agreements that could not be addressed through judicial or administrative litigation. As a result, relationships among neighbors, members of the business community and government can be sustained and even improved.

 

What are some misconceptions about mediation?

Loss of hearing rights?
By agreeing to participate in mediation, parties do not waive any rights to a full hearing (unless a settlement is reached).

Compromise?
Agreeing to explore a settlement through mediation is not in itself a compromise. You can walk away from mediation at any time, for any reason or no reason, prior to any agreement being reached.

Delay?
Mediation can happen during the pre=hearing process or while the case is at the Office of Appeals and Dispute Resolution. Generally the mediation process will not delay the litigation schedule, unless the parties request a stay or extension of time of the administrative litigation deadlines.

Prejudice to your case?
All communications during mediation are confidential, inadmissible in evidence and protected from discovery.

Additional Resources for Alternative Dispute Resolution

Policies and Directives

Forms

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