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The 189th General Court of the Commonwealth of Massachusetts

Section 5A: Administrative record; selection and review of response actions; regulations

Section 5A. The department may establish an administrative record upon which the department shall base the selection of a response action in those cases where (i) the department itself, or acting through its agents or contractors, carries out a response action, or (ii) the department issues an order subject to subsection (b) of section ten. The administrative record shall be available to the public at the department office most convenient to the site, vessel or location in question. The department may also place duplicates of the administrative record at any other location.

The department shall promulgate regulations, in accordance with section three of chapter thirty A, establishing procedures governing the appropriate participation of interested persons in the development of the administrative record on which the department will base the review of response actions and on which judicial review of response actions will be based.

The department shall provide for the participation of interested persons, including persons who are, or who are potentially, persons described in paragraph (a) of section five, in the development of the administrative record on which the department will base the selection of response actions and on which judicial review of response actions will be based. The procedures developed pursuant to this section shall include, at a minimum, the following:--

(1) notice to potentially affected persons, to the extent known to the department, and to the public, which notice shall be accompanied by a brief analysis of the plan and alternative plans that were considered;

(2) a reasonable opportunity to comment and provide information regarding the plan;

(3) a reply to each of the comments, criticisms and new data that are submitted to the department and that the department determines are significant; and

(4) a detailed statement of the basis and purpose of the selected response action, including a description of conditions at the site or vessel, risks and criteria for the selected response actions.

For purposes of this section, the administrative record shall include all items developed or received by the department pursuant to this section, and all items developed, received or published by the department or made available to the public pursuant to section fourteen.

The department shall promulgate regulations establishing standards for the content of the administrative record. Until such regulations take effect, the administrative record shall consist of all items developed and received pursuant to procedures used by the department for selection of the response action, including procedures for the participation of interested parties and the public, on the date this section first takes effect.

The development of an administrative record and the selection of a response action pursuant to this chapter shall not be an adjudicatory proceeding and shall not be subject to those provisions of chapter thirty A, or of any other law, governing adjudicatory proceedings.

The department shall make reasonable efforts to identify and notify potentially responsible parties as early as possible before selection of a response action.

Nothing in this section shall be construed as a defense to liability.