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.
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:
- The permit, order or penalty assessment notice being appealed. Look for the statement of appeal rights, usually at the end of the document.
- 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.
- 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.
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.
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.
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.
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.
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:
- Lexis/Nexis. Lexis publishes MassDEP decisions electronically for its subscribers in its "MA Environmental Administrative Decisions" database.
- 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.
- 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).
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.
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.
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.
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.
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).
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.
