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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE II EXECUTIVE AND ADMINISTRATIVE OFFICERS
    OF THE COMMONWEALTH
  • CHAPTER 21E MASSACHUSETTS OIL AND HAZARDOUS MATERIAL RELEASE PREVENTION AND RESPONSE ACT
  • Section 10 Orders; review

Section 10. The issuance of an order pursuant to section nine shall be subject to the following provisions. The department shall, in its sole discretion, choose which of the following provisions shall be applicable to a particular order. Notice of the department’s choice, and of the applicable provisions, shall be included in the order.

(a) The issuance of an order not subject to any other provision of this section shall be an adjudicatory proceeding and shall be subject to all provisions of chapter thirty A governing adjudicatory proceedings. Any person aggrieved by the issuance of an order may request an adjudicatory hearing before the department. Any such order shall contain a notice of the right to request a hearing and may specify a reasonable time limit, not to exceed twenty-one days, within which said person shall request said hearing. If no such request is timely made, the order shall be deemed assented to. If a timely request is received, the department shall act upon such request within a reasonable time in accordance with said provisions of chapter thirty A.

(b)(1) The provisions of this subsection (b) shall apply to the following orders:

(A) Orders, or parts of orders, in which the department finds that an imminent hazard to public health, safety, or welfare, or to the environment could result in avoidable delay in compliance.

(B) An order to any person described in paragraph (a) of section five to apply for a permit to carry out, or to carry out, or both, response actions at or for the site, provided that the following conditions are met:

(i) The site in question has been listed pursuant to subsection (b) of section three A, and

(ii) The department has given the person in question reasonable opportunity to voluntarily apply for a permit or carry out the response actions in question, and

(iii) The department makes a finding, which appears in the order, together with a brief and concise statement of the department’s reasons for making said finding, that it would be contrary to the public interest for needed or appropriate response actions to be deferred any longer or to force the government to use government funds to pay so that such response actions are not deferred any longer, and

(iv) The order contains a brief, concise statement of notice of the rights of reimbursement and review set forth in this subsection (b).

(2) An order issued pursuant to this subsection (b) shall become effective and enforceable immediately upon issuance. Such order shall not be an adjudicatory proceeding and shall not be subject to those provisions of chapter thirty A, or any other law, governing adjudicatory proceedings. Any person who receives and complies with the terms of such order may, within ninety days after completion of such compliance, petition the department for reimbursement for the reasonable costs of such compliance. The department may grant the petition only if the department is persuaded that (i) either the person to whom the order was issued was not liable pursuant to this chapter, or was entitled to the benefits of an affirmative defense or limitation on liability set forth in this chapter or in any other applicable law, and (ii) the costs for which reimbursement are sought are for compliance with the order and were incurred reasonably and in good faith. The refusal by the department to grant all or part of such petition shall not be an adjudicatory proceeding and shall not be subject to those provisions of chapter thirty A, or any other law, governing adjudicatory proceedings. If the department refuses to grant all or part of such petition, the petitioner may within ninety days of receipt of such refusal file a civil action against the department in the superior court department of the trial court.

(3) No court shall have jurisdiction to review an order issued pursuant to this subsection (b), or to take any action with respect thereto, unless the proceeding in the court is one or any combination of more than one of the following:—

(A) an action pursuant to section four for contribution, reimbursement, or for equitable sharing of the costs of response action or of other liability pursuant to this chapter; or

(B) an action pursuant to section five to recover costs or damages; or

(C) an action pursuant to this subsection (b) for reimbursement of the reasonable costs of compliance with the order; provided, that the court shall award such reimbursement only to the extent the court finds that it is persuaded, by a preponderance of the evidence, that the department erred in refusing to grant the petition for such reimbursement; or

(D) an action pursuant to section eleven for civil or criminal penalties; or

(E) an action brought by the commissioner or the attorney general pursuant to section eleven for injunctive relief; or

(F) judicial review, pursuant to the provisions of chapter thirty A governing adjudicatory proceedings, of a civil administrative penalty assessed pursuant to section sixteen of chapter twenty-one A.

(4) The department may establish an administrative record upon which the department shall base the selection of a response action required in an order issued pursuant to subsection (b). The development of such administrative record shall be in accordance with the provisions of section five A. If the department establishes an administrative record, judicial review of any issues associated with the adequacy or reasonableness of any response action required in such order shall be limited to said administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.