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The 189th General Court of the Commonwealth of Massachusetts

Section 5B: Judicial review of response actions

Section 5B. No court shall have jurisdiction to review any issue concerning the adequacy of any response action in those cases where the department itself, or acting through its agents or contractors, carries out a response action pursuant to this chapter, unless the proceeding in the court is one or any combination of more than one of the following:--

(1) an action under section four for contribution, reimbursement or for equitable sharing of the costs of response action or for other liability pursuant to this chapter; provided, that the court shall not make any ruling or decision that affects the rights or interests of the commonwealth unless the commonwealth is a party to the action; or

(2) an action under section five to recover costs or damages; or

(3) an action under subsection (c) of section ten for reimbursement of the reasonable costs of compliance with the order; or

(4) an action under section eleven for civil or criminal penalties; or

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

(6) 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.

If the department establishes an administrative record in accordance with section five A, in any judicial action, judicial review of any issues concerning the adequacy or reasonableness of any response action taken by the department, or by its agents or contractors, pursuant to this chapter 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.

In considering objections raised in any judicial action concerning the adequacy or reasonableness of any response action taken or ordered by the department pursuant to this chapter, the court shall uphold the department's decision in selecting the response action unless the objecting party persuades the court that the decision was arbitrary and capricious or otherwise not in accordance with law. If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall not award those response costs or damages that are arbitrary or capricious, are not in accordance with law, or are inconsistent with the Massachusetts Contingency Plan, and the court shall award those response costs or damages that are not arbitrary or capricious, are in accordance with law, and are consistent with the Massachusetts Contingency Plan. In reviewing alleged procedural errors, the court may disallow costs, damages, penalties or other relief only if the errors were so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not been made.