HOUSE DOCKET, NO. 274        FILED ON: 1/9/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 732

The Commonwealth of Massachusetts

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PRESENTED BY:

Louis L. Kafka

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing a Department of Environmental Protection appeals board.

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PETITION OF:

HOUSE DOCKET, NO. 274        FILED ON: 1/9/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 732

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 4018 OF 2011-2012.]

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act establishing a Department of Environmental Protection appeals board.

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.  Section 19 of chapter 21A of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting, after the word “meanings:”, the following definition:-

“Appeals board”, the department of environmental protection appeals board, established pursuant to section 19G ½.

SECTION 2.  Chapter 21A of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting, after section 19G, the following section:-

Section 19G ½  There is hereby established within the executive office of energy and environmental affairs a board to be known as the department of environmental protection appeals board.  The appeals board shall consist of five members, the chair who shall be the secretary of the executive office of energy and environmental affairs or his designee; provided, however, that the designee shall be a full-time employee of the office at all times while so designated, and such designee shall not be a member of the board of registration of hazardous waste site cleanup professionals.  The governor shall appoint the other four members of the appeals board to 2 year terms, one member shall be a licensed hazardous waste site cleanup professional, one member from a statewide organization that promotes the protection of the environment, one member from a labor organization who is knowledgeable with respect to issues involving response to releases of oil and hazardous materials, and one member shall be a hydrologist, who is knowledgeable with respect to issues involving response to releases of oil and hazardous materials and environmental protection; provided, however, that none of the appointees are members of the board of registration of hazardous waste site cleanup professionals.

Each of the 4 members of the appeals board appointed by the governor whose term has expired shall continue to be a member of the appeals board until the member’s successor is appointed and qualified, at which time the successor shall complete the unexpired portion of the term.  Each of the 4 members of the appeals board appointed by the governor shall serve without compensation.

The board may make such rules or by-laws, not inconsistent with law, as it may deem necessary in the performance of its duties and may establish forms of appeals and petitions, and reasonable fees for the filing thereof. The board shall hold only such meetings as are required to perform its duties. Time, place and notice of all meetings shall be required by rules or by-laws. A majority of the board, constituted as above provided, may transact business, but a lesser number may adjourn from time to time.

No member shall act as a member of the board, or vote as such, in connection with any matter as to which his private right, distinct from the public interest, is immediately concerned.

The secretary of the executive office of energy and environmental affairs, as chair, shall employ such staff and other persons as are required to assist the appeals board, or both, in the performance of its functions and duties pursuant to sections 19 through 19 J, inclusive.

SECTION 3.   Said chapter 21A is hereby further amended by striking out section 19H, as appearing in the 2010 Official Edition, and inserting in place thereof the following section:-

Section 19H. Whoever is aggrieved by a determination by the board of registration of hazardous waste site cleanup professionals or other person charged with the enforcement of the rules and regulations of such board, may, within 10 days after the service of notice thereof, appeal therefrom, to the appeals board. The appeals board shall, after such notice as it may direct, hold a public hearing on such appeal at a time and place to be fixed by it, but not later than 30 days after the entry of such appeal, unless such time shall be extended by agreement with the appellant. The appellant may appear in person or by agent or attorney at such hearing. The appeals board shall hear all pertinent evidence and determine the facts, and shall issue an appropriate decision or order reversing, affirming or modifying in whole or in part the determination. Such decision or order of the board shall be made within a reasonable time, and within 45 days after such hearing, unless such time is extended by like agreement. The board shall forthwith send by registered mail a copy of its decision or order to the interested parties.

Any person aggrieved by a decision or order of the appeals board, whether or not a party to the proceeding may, within 30 days after receipt of notice of such decision or order obtain judicial review thereof pursuant to chapter 30A.  Said court shall hear all pertinent evidence and determine the facts and may annul such decision if it is found to exceed the authority of said board, or may make such other decree as justice may require as set forth in section 19I. Costs shall not be allowed against the appeals board unless it appears to the court that said board acted with gross negligence or in bad faith or with malice in making the decision or order appealed from. Costs shall not be allowed against a party appealing from the decision or order of such appeals board unless it appears to the court that the appellant acted in bad faith or with malice in making the appeal to the court.

Compliance with any determination of the board of registration of hazardous waste site cleanup professionals or other person charged with the enforcement of the rules and regulations of such board shall be excused pending the final determination of any appeal therefrom taken under this section; provided, however, that if, in making a determination subject to this section, the appeals board finds that an imminent threat to public health or safety or to the environment could result during the pendency of a judicial review, the board may order that the determination become provisionally effective and enforceable immediately upon issuance, and shall remain so notwithstanding and until the conclusion of the judicial review, unless the appeals board orders otherwise during the course of the proceeding.