Section 74: Determination of contaminated areas; notice of results
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 protection, 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.