Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 130 of the General Laws is hereby amended by striking out section 74, as appearing in the 1986 Official Edition, and inserting in place thereof the following section:-

Section 74. The division of marine fisheries shall examine from time to time as conditions may require, or upon request of the commissioner of public health, the mayor or city manager of a city, or the selectmen or town manager of a town, the coastal waters and flats of the commonwealth and samples of shellfish therein or thereon in order to determine what areas thereof are so contaminated that shellfish obtained therefrom are unfit for food and dangerous to the public health. The division of marine fisheries shall forward the results of all tests as directed by the commissioner of public health. If, after such examination, either the department of public health or the division of marine fisheries determines that such contamination exists, it shall, by written order, promulgate definite bounds of the area or areas so determined to be contaminated, and may specify the period of time during which such determination shall be in effect. Before such determination shall be in effect, such department or division making the determination shall:

(1) Publish the results of its determination thereof in a newspaper published in each city and town in which or adjacent to which any contaminated area is situated.

(2) File in the office of the clerk of every such city or town the results of the determination.

(3) Cause to be posted at points on or near every such area a description thereof, specifying said bounds and a statement that such an area is contaminated.

(4) If the department of public health makes the determination, notify the directors of the division of marine fisheries and the division of law enforcement of its determination by filing with them properly authenticated copies, certified by the secretary of state, of its determination, publication, filing and posting.

(5) If the division of marine fisheries makes the determination, notify the director of the division of law enforcement of its determination by filing with him properly authenticated copies, certified by the secretary of state, of its determination, publication, filing and posting.

Whenever, as a result of a subsequent examination of an area or areas determined by the division of marine fisheries or the department of public health to be contaminated, such division or said department, as the case may be, determines that the shellfish in such area or areas are safe to use as food, notice of such determination shall be published immediately, and provided to the directors of the division of marine fisheries and the division of law enforcement, in the case of a determination by the department of public health, and to the director of the division of law enforcement in the case of a determination by the division of marine fisheries; provided, however, that if the department of public health or the division of marine fisheries has specified a period of time during which the determination of pollution shall be in effect, such publication and notice shall not be required if such period has expired. The record of any examination hereunder and the bacteriological counts made therein shall be subject to inspection upon request.

Personnel at the department of public health and the division of marine fisheries in the performance of their duties under this section, may enter upon and pass through or over private lands or property whether or not covered by water.

The presentation in evidence by any officer of the commonwealth empowered to enforce this chapter of a document attested to by the commissioner of the department of public health or the director of the division of marine fisheries or either of their designees to the effect that the provisions of this section have been complied with shall be prima facie evidence that an effective determination has been made.

The department of public health and the division of marine fisheries, acting jointly, after consultation with the department of environmental quality engineering, can promulgate rules and regulations establishing standards and criteria for the classification of all shellfish growing areas within the commonwealth. Such standards and criteria shall conform at a minimum to those established by the national shellfish sanitation program.

This section shall not apply to scallops or conch unless scallops or conch are specifically included in such determination.

SECTION 2. Said chapter 130, as so appearing, is hereby further amended by striking out section 74A and inserting in place thereof the following section:-

Section 74A. Both the department of public health and the division of marine fisheries shall have the authority immediately to designate shellfish areas as contaminated and that shellfish obtained therefrom are unfit for food and dangerous to the public health, in the event of an emergency as determined by either the department of public health or the division of marine fisheries. Such designation shall be reported to the division of law enforcement, and, in the case of a determination by the department of public health, to the division of marine fisheries, who shall take the necessary action to prevent the taking of shellfish from such area for human consumption and so notify local authorities in each instance. Such determination shall be in effect until subsequent examination, initiated not more than thirty days after the emergency has been determined, shows the shellfish from such area to be safe for human consumption and the said department or division which designated the emergency declares it to be over. In the event that the department of public health determines that there is an emergency, the commissioner of public health shall have the power to direct the activities of all employees of the division of marine fisheries who are regularly engaged in monitoring the condition of shellfish during that emergency.

This section shall not apply to scallops or conch unless scallops or conch are specifically included in such determination.

SECTION 3. Section 75 of said chapter 130, as so appearing, is hereby amended by striking out, in lines 9 and 10, the phrase "the commissioner of the department of environmental quality engineering, after appropriate review and comment by the commissioner of public health" and inserting in place thereof the following phrase:- the commissioner of public health.

SECTION 4. Said chapter 130 of the General Laws, as so appearing, is hereby further amended by striking out section 76, and inserting in place thereof the following section:-

Section 76. The director of the division of marine fisheries may construct and operate shellfish purification plants for the treatment of shellfish taken from areas determined under section seventy-four or any corresponding provisions of earlier laws, to be contaminated, and may operate such existing purification plants to serve such areas as he may deem necessary for these purposes. Said director may acquire by purchase, gift, lease or otherwise, or take by eminent domain under chapter seventy-nine, such land and buildings thereon as may be necessary for the purposes of this section. Said director or his designee shall have sole authority over the acceptance, treatment and discharge of shellfish at such plants, subject to the rules and regulations, which the department of public health is hereby authorized and directed to adopt, relative to the protection of the public health in the consumption of such shellfish.

SECTION 5. Section 77 of said chapter 130, as so appearing, is hereby amended by striking out, in lines 2 and 3, the words "the department of fisheries, wildlife and recreational vehicles" and inserting in place thereof the words:- the division of marine fisheries.

SECTION 6. Section 80 of said chapter 130, as so appearing, is hereby amended by inserting after the word "permit", in line 26, the following words:- issued jointly by the division of marine fisheries and the department of public health; and by inserting, in line 34, after the word "permit" the following words:- issued jointly by the division of marine fisheries and the department of public health.

SECTION 7. Said section 80 of said chapter 130, as so appearing, is hereby further amended by striking out the fifth paragraph and inserting in place thereof the following paragraph:-

The director shall promulgate rules and regulations relative to the form, contents, and use of all permits issued under this chapter except the form, contents and use of wholesale and retail seafood dealer permits which shall be subject to rules and regulations promulgated by the director and the commissioner of public health. The director shall revoke and cancel and require the surrender of any permit issued under this chapter if, in his opinion, after a hearing, after due notice by him or some person designated by him, the holder has violated any rule or regulation of the director or of any provision of this section or section seventy-five, or upon a change in the facts and conditions set forth in such permit or certificate. The commissioner of public health shall also have the authority to revoke and cancel and require the surrender of any wholesale dealer or retail dealer permit issued under this chapter if, in his opinion, after a hearing, after due notice by him or some person designated by him, the holder has violated any rule or regulation of the department of public health or any general or specific law pertaining to fish or the sale thereof, or upon a change in the facts and conditions set forth in such permit. Pending the hearing, the certificate may be suspended. Whoever violates any provisions of this section shall be punished by a fine of not less than ten nor more than fifty dollars or by imprisonment for thirty days, or both.

SECTION 8. There shall be an advisory board consisting of the commissioner of public health or his designee, the commissioner of the department of fisheries, wildlife and environmental law enforcement or his designee, the commissioner of the department of environmental quality engineering or his designee, and the director of the office of coastal zone management or his designee. The board shall review the operations of the programs governing the management, research and control of marine resources in the commonwealth, and the conduct of research, monitoring, and surveillance activities with respect to shellfish, and shall make recommendations to the appropriate agencies to promote coordination and efficiency of such programs and activities.

SECTION 9. The division of marine fisheries shall at least every two years study the meat of conch taken from areas subject to sections seventy-four or seventy-four A of chapter one hundred and thirty to determine the extent of contamination, if any, of such meat by chemicals that are injurious to public health. Such study shall include possible contamination by so-called PCBs and heavy metals. Copies of such reports shall be distributed to the secretary of the executive office of environmental affairs, the department of environmental quality engineering and the department of public health.