1.00: ADJUDICATORY PROCEEDINGS SECTION
1.02: Purpose and Applicability
1.06: Filing, Receipt of Papers
and Notices, and Computation of Time
1.07: Filings Generally
1.08: Ex Parte Communications
1.09: Withdrawal and Disqualification
of Presiding Officer
1.10: Docket/Decision Index
1.11: Availability of Rules
to 360 CMR 1.00
1.20: Initiation of Adjudicatory
Proceeding, Answer, and Amendment of Pleadings
1.23: Intervention and Participation
1.24: Hearings and Conferences
360 CMR 1.00 are the rules and regulations
of the Massachusetts Water Resources Authority, promulgated pursuant to
St. 1984, c. 372, to govern the conduct of administrative adjudicatory
proceedings held by the Authority.
1.02: Purpose and Applicability
(1) 360 CMR 1.00 is intended to:
(a) Govern the conduct of all Adjudicatory
Proceedings, as defined herein, held by the Massachusetts Water Resources
(b) Provide for a just and speedy determination
of the legal rights, duties, and privileges of the parties to Adjudicatory
Proceedings before the Massachusetts Water Resources Authority; and
(2) 360 CMR 1.00 is applicable to every Adjudicatory
Proceeding, as defined herein, held by the Authority.
The provisions of 360 CMR 1.00 are severable. If
any provision of 360 CMR 1.00, or the application to any Person or circumstance,
is held invalid, the invalidity shall not affect other provisions or applications
which can be given effect without the invalid provision or application.
Unless the context specifically indicates otherwise, the meaning of the
terms used in 360 CMR 1.00 shall be those defined in 360 CMR
2.04 and 10.004 and as follows:
Adjudicatory Proceeding shall mean a proceeding before the Authority
in which the legal rights, duties, or privileges of specifically named
persons are required by constitutional right, or by any provision of Massachusetts
law or regulations to be determined after opportunity for a hearing before
the Authority, but does not include:
(a) proceedings solely to determine whether
the Authority shall institute or recommend institution of proceedings
in a court;
(b) proceedings for the arbitration of
labor disputes voluntarily submitted by the parties to such disputes;
(c) proceedings for the disposition of
grievances of employees of the Authority; or
(d) proceedings to classify, reclassify,
allocate, or reallocate appointive offices and positions in the Authority.
Agency shall mean any department, board, commission, division,
authority, or other entity within the executive branch of the federal
government or the state government, any subdivision of any of the foregoing,
any municipality, or any official of the executive branch of the federal
government or of a state government or municipality.
Authorized Representative shall mean an attorney, legal guardian,
or other person authorized by a Party to represent it in an Adjudicatory
Notice of Action shall mean a document required to be issued by
the Authority whenever an Adjudicatory Proceeding may be initiated as
a result of an action taken or intended to be taken by the Authority.
The documents that are Notices of Action shall include Penalty Assessment
Notices, rulings on requests for reconsideration issued pursuant to 360
CMR 2.21(3), and Orders to Show Cause.
Papers shall mean all written communications filed in an Adjudicatory
Proceeding, including motions, pleadings, and other documents.
Party shall mean the specifically named Person whose legal rights,
duties, or privileges are being determined in an Adjudicatory Proceeding;
any Person who as a matter of constitutional right or by any provision
of Massachusetts law or regulation is entitled to participate in the Adjudicatory
Proceeding and who makes an appearance pursuant to 360 CMR 1.05; and any
Person allowed by the Presiding Officer to intervene in the Adjudicatory
Petitioner shall mean the Person who initiates an Adjudicatory
Presiding Officer shall mean the individual authorized by law or
duly designated by the Authority to conduct Adjudicatory Proceedings.
Respondent shall mean the Person who must respond to a Notice of
Claim for Adjudicatory Proceeding or Order to Show Cause.
(1) Appearance. An individual may appear on his
own behalf. A duly authorized officer or employee may represent a corporation,
an authorized member may represent a partnership or joint venture, and
an authorized trustee may represent a trust. Any Party to an Adjudicatory
Proceeding shall have the right to be represented by an Authorized Representative.
(2) Notice of Appearance. The filing of any pleading,
motion, or other Paper shall constitute an appearance by the attorney
who signs it, unless the Paper states otherwise. Where a Party is not
represented by an attorney, the Party shall file a written notice with
the Authority, identifying the name, address, affiliation, if any, and
telephone number of the Party's Authorized Representative. Where the Party
represents himself, he shall notify the Authority in writing.
1.06: Filing, Receipt of Papers
and Notices, and Computation of Time
(1) Timely Filing. Papers
required or permitted to be filed under 360 CMR 1.00 or any provision
of applicable law, must be filed within the time limits set by law or
regulation and shall be filed at the Authority office or wherever designated
by the Authority. Papers filed in the following manners shall be deemed
filed as stated:    (a) Hand-delivery
during business hours. Papers so filed shall be deemed filed on the
(b) Hand-delivery during non-business
hours. Papers so filed shall be deemed filed on the next regular business
(c) Mailing. Papers filed by placing
in the U.S. Mail shall be deemed filed on the date received by the Authority
at the place designated for filing.
(2) Date Stamping. All Papers shall show the date
received by the Authority. The Authority shall cooperate in giving date
receipts to Persons filing Papers by hand-delivery.
(3) Receipt of Papers and Notices. All Papers
and notices shall be deemed to be received as follows:
(a) If delivered in hand, the Paper or
notice shall be deemed to be received when delivered:
1. Personally to the Party
or his attorney; or
2. Personally to any officer,
employee, or agent of the Party authorized by appointment of the Party
or by law to accept service; or
3. To the Person's last
known address in the Commonwealth; or
4. To the last known address
of any officer, employee, or agent of the Party authorized by appointment
of the Party or by law to accept service.
(b) If sent by certified mail, return
receipt requested, the Paper or notice shall be deemed to be received
1. When signed for by:
a. The Party of his
b. The Party's officer,
employee, or agent, including, without limitation, any officer, employee,
or agent authorized by appointment of the Party or by law to accept service;
2. When returned by the
U.S. Postal Service to the Authority as unclaimed, unless the Authority
is persuaded that the Paper or notice was not claimed for reasons beyond
the control of the Party to whom the Paper or notice was sent.
(c) If delivered by regular mail, the
Paper or notice shall be deemed to be received no later than the third
business day after it is mailed to the Party or his attorney, or where
the Paper is issued by the Authority, the Authority is persuaded otherwise
by the Party to whom the Paper or notice was mailed.
(4) Computation of Time. Unless otherwise specifically
provided by 360 CMR 1.00 or any ruling issued under 360 CMR 1.00, computation
of any time period referred to in 360 CMR 1.00 shall begin with the
first day following the act which initiates the running of the time period.
The last day of the time period so computed is to be included unless it
is a Saturday, Sunday, legal holiday, or any other day on which the office
of the Authority is closed, in which event the period shall run until
the end of the next following business day. When the time period is less
than seven days, only days when the offices of the Authority are open
shall be included in the computation.
(5) Extension of Time. The Presiding Officer shall
have the discretion to extend any time limit contained in 360 CMR 1.00
for good cause shown. All requests for extensions of time shall be made
by motion before the expiration of the original or previously extended
time period. The filing of such motion shall toll the time period sought
to be extended until the Presiding Officer acts on the motion. A motion
for an extension of time made after the expiration of the time period
may be granted only where the failure to act was the result of excusable
1.07: Filings Generally
(1) Title. Papers filed with the Authority shall
state the docket number, if any, the title of the Adjudicatory Proceeding,
and the names of the Parties. Papers not containing all this information
shall be accepted for filing if they contain sufficient identifying information.
(2) Signatures. Papers filed with the Authority
shall be signed and dated by the Party making the filing or by the Party's
Authorized Representative, and shall state the address and telephone number
of the Party or Authorized Representative. The signature of the Party
or Authorized Representative constitutes a certification by the signer
that he has read the document, knows the content thereof, that to the
best of his knowledge, information, and belief there is a good ground
to support it, and that it is not interposed for delay and, if the document
is signed by an Authorized Representative, that he has full power and
authority to do so.
(3) Agency as a Party. An Agency named a Party
to an Adjudicatory Proceeding shall be designated by its name and not
by the name(s) of particular individual(s) holding office. If a change
occurs in an individual(s) holding office while the Adjudicatory Proceeding
is pending, the Adjudicatory Proceeding shall not abate, and no substitution
of Parties shall be necessary.
(a) All Papers, except submittals and
documents which are kept in a larger format during the ordinary course
of business, shall be handwritten or typewritten on paper 8 to 8 ½ inches
wide by 10 to 11 inches long, with left hand margins not less than 1 inch.
The impression shall be on only one side of the page, unless there are
more than four pages, and shall be double-spaced except that quotations
in excess of three lines shall be single-spaced and indented. Photocopied
Papers will be accepted as handwritten or typewritten. All Papers shall
be clear and legible.
(b) Notwithstanding 360 CMR 1.07(4)(a),
all interrogatories, requests for admission of fact, and requests for
production of documents may be single spaced.
(c) The Authority may provide forms to
be used by the Parties.
(5) Service: When Required. Except as otherwise
provided by 360 CMR 1.00, or unless the Presiding Officer otherwise
orders, every Paper shall be served upon each Party.
(6) Service: How Made. Whenever under 360 CMR
1.00 service is required or permitted to be made upon a Party represented
by an attorney, service shall be made upon the attorney unless service
upon the Party is ordered by the Presiding Officer. Service upon the attorney
or upon a Party shall be made by delivering a copy to him or by mailing
it to him or to his last known address. The last page of every Paper served
under 360 CMR 1.00 shall contain a brief signed certification showing
the date and manner of service.
(7) Filing. Except as otherwise provided in 360 CMR
1.07(8), the original of every Paper required to be served upon a Party
shall be filed with the Authority either before service or within a reasonable
time thereafter. (8) Papers not Filed. Unless
the Presiding Officer orders otherwise, the following shall not be presented
or accepted for filing: transcripts of depositions; requests for documents
and/or things and responses thereto; and interrogatories and responses
thereto. The Party taking a deposition or obtaining material through discovery
is responsible for its preservation and delivery to the Presiding Officer
if needed or when so ordered. Notwithstanding 360 CMR 1.07, any Party
pressing or opposing any motion may file any document pertinent thereto.
1.08: Ex Parte Communications
No Party or other person directly or indirectly involved in an Adjudicatory
Proceeding shall submit to the Presiding Officer, or any Authority employee
involved in the decision making process, any evidence, arguments, analysis,
or advice, whether written or oral, regarding any matter at issue in an
Adjudicatory Proceeding, unless such submission is part of the record
or made in the presence of all Parties. This provision does not apply
to consultation among the Authority's members concerning the Authority's
internal administrative functions or procedures.
1.09: Withdrawal and Disqualification
of Presiding Officer
A Presiding Officer may at any time withdraw from an Adjudicatory Proceeding,
in which case another Presiding Officer shall be appointed. If a Party
files a timely and sufficient motion and supporting affidavit alleging
bias or other ground for disqualification of a Presiding Officer, and
the Presiding Officer does not disqualify himself pursuant to such motion,
such motion and all material submitted in support of and opposition to
such motion shall be made part of the record, and the Presiding Officer
may rule on the motion as part of the Decision in the Adjudicatory Proceeding
or at such earlier time as justice may require.
1.10: Docket/Decision Index
(1) Docket. Unless otherwise prescribed by law,
the Authority shall maintain on a current basis a docket of all proceedings,
which shall list separately in chronological order all Papers filed and
actions taken in each Adjudicatory Proceeding.
(2) Decision Index. Unless otherwise prescribed
by law, the Authority shall maintain on a current basis a Decision Index
and compilation of Decisions. Said index shall contain an alphabetical
listing by name and subject matter of all Adjudicatory Decisions rendered
by the Authority and shall contain a further cross reference as to the
page number in the compilation where the subject Decision may be found.
All names and addresses of Parties shall, when appropriate, be deleted
from the Decisions in the compilation in order to protect confidentiality.
(3) Public Inspection. Unless prescribed by law,
the docket, decision index, and compilation of Decisions shall be available
for inspection and copying by the public during the office hours of the
Authority. The rate for copying shall be the rates as set by the Executive
Office for Administration and Finance.
1.11: Availability of Rules
Copies of all rules shall be available upon request to any Person from
the offices of the Authority. Fees for copies shall be the cost of public
records as determined by the Executive Office for Administration and Finance.
1.12: Amendments to 360 CMR
All amendments to 360 CMR 1.00 shall be effective as of the date of publication
thereof unless otherwise specifically provided.
1.20: Initiation of Adjudicatory
Proceeding, Answer, and Amendment of Pleadings
(1) Claim for Adjudicatory Proceeding. Any Person
having a right to an adjudicatory proceeding shall commence such a proceeding
by filing a written Claim for Adjudicatory Proceeding. Such Claim shall
be filed with the Authority within the time prescribed by any applicable
provision of law or regulation or, in the absence of a prescribed time
period, within 21 days from the date of said Person's receipt of a Notice
of Action from the Authority giving rise to the right to the Adjudicatory
A Claim for Adjudicatory Proceeding shall state clearly and concisely
the facts and issues which are grounds for the proceeding, the relief
sought, and any additional information required by applicable statutes
and regulations. The Authority may provide forms to be used for a Claim
for Adjudicatory Proceeding.
(2) Order to Show Cause. Whenever the Authority
desires to initiate an Adjudicatory Proceeding it may commence a proceeding
by issuing an Order to Show Cause setting forth the grounds for the Order.
An Order to Show Cause shall contain a statement of the legal and factual
grounds for the Order, including the legal authority for commencing the
proceeding and issuing the relief sought.
(3) Answer. Within 21 days of the filing of a
Claim for Adjudicatory Proceeding or an Order to Show Cause, the Respondent
shall file an Answer. The Answer shall contain full, direct and specific
responses to each claim set forth in the Claim or Order and shall admit
or deny the averments contained therein. If the Party filing the Answer
is without knowledge or information sufficient to form a belief as to
the truth of an averment, he shall so state and this has the effect of
a denial. The Answer shall contain all affirmative defenses to the claims
stated in the Claim or Order and may cite the statute(s) and/or regulation(s)
which form the basis of each defense. All averments contained in the Claim
or Order which are not specifically admitted in the Answer shall be deemed
denied. All new matters contained in the Answer shall be treated as if
(4) Authority Answer. The Authority shall not
be required to file an Answer if, at the time the Authority took the action
being appealed, the Authority disclosed to the Petitioner the material
facts upon which the Authority relied in taking such action and the statutes
and/or regulations which authorized or required the Authority to take
such action. Notwithstanding the foregoing, the Presiding Officer may
on his own initiative or upon the motion of any Party, order the Authority
to file an Answer.
(5) Amendment of Pleadings. A Party may amend
its pleadings only by leave of the Presiding Officer or by written consent
of the adverse Party; leave shall be freely given when justice requires.
(a) Presentation of and Opposition
to Motions. Any Party may request of the Presiding Officer any order
or action not inconsistent with law or 360 CMR 1.00. Such a request shall
be called a motion. The provisions of 360 CMR 1.21 (2) through (10)
shall not be construed to limit a Party's right to make a motion, not
listed in 360 CMR 1.21(2) through (10), not inconsistent with law
or 360 CMR 1.00. Motions may be made in writing at any time after the
commencement of an Adjudicatory Proceeding or may be made orally during
a hearing. Each motion shall set forth the grounds for the desired order
or action and state whether a hearing is desired. A Party filing a motion
shall serve together with the motion a statement of reasons, including
supporting authorities, why the motion should be granted and shall include
any other information required by 360 CMR 1.00. Affidavits and other documents
setting forth or evidencing facts on which the motion is based shall be
filed and served with the motion.
Any time within ten days after a written motion is filed, any Party may
file a written opposition to the motion and shall request a hearing if
one is desired. With the opposition, the Party may file and serve a statement
of reasons, together with supporting authorities, why the motion should
not be allowed. Affidavits and other documents setting forth or evidencing
facts on which the opposition is based shall be filed and served with
(b) Hearings and Rulings on Motions.
The Presiding Officer may, in his discretion, act upon any motion, with
or without a hearing; except that where a Party requests a hearing on
a motion to dismiss or for summary decision, the Presiding Officer shall
not act on the motion without a hearing unless it appears from the Papers
filed with the Authority that failure to rule on the motion before a hearing
is held will cause irreparable harm to the moving Party, or the public
health, safety, welfare or the environment. The decision to hold a hearing
on any other motion shall be within the discretion of the Presiding Officer.
The Presiding Officer shall make the decision and based upon whether a
hearing would be necessary or helpful to a disposition of the motion,
or is required by law. If the Presiding Officer acts on a motion without
a hearing, he shall consider all timely filed Papers regarding the motion.
If a motion is made orally at a hearing, the Presiding Officer may act
on the motion during the hearing. If the Presiding Officer holds a subsequent
hearing on a motion made orally at a hearing, notice of the time and place
of the hearing shall be given to the Parties at least three days in advance.
The Presiding Officer may grant requests for continuances for good cause
shown, or in the event of an unexcused absence of a Party, may permit
the hearing to proceed and the unexcused Party's motion or opposition
will be considered on the basis of the Papers timely filed by the Party.
If the Presiding Officer grants a motion that results in a termination
of the proceeding, he shall issue a written decision pursuant to 360 CMR
(c) Factual Basis. At a motion
hearing, a Party may offer only evidence relevant to the motion. The evidence
may consist of facts presented orally by sworn testimony, by affidavit,
or through records, files, depositions, answers to interrogatories, or
requests for admission of fact.
(2) Motion for a More Definite Statement. If a
pleading to which a responsive pleading is required is so vague or ambiguous
that a Party cannot reasonably be required to frame a response, the responding
Party may, within the time permitted for the responsive pleading, move
for a more definite statement before filing his responsive pleading. The
motion shall set forth the defects complained of and the details desired.
If the motion is granted, the more definite statement shall be filed within
ten days after the Presiding Officer rules on the motion, or within such
other time set by the Presiding Officer. If the more definite statement
is not filed within the prescribed deadline, the Presiding Officer may
dismiss the Adjudicatory Proceeding, strike the pleading to which the
motion was directed, or make any other order he deems just.
(3) Motion to Strike. Any Party, or the Presiding
Officer on his own initiative, may move to strike from any pleading any
insufficient allegation or defense, or any redundant, immaterial, impertinent,
or scandalous matter.
(4) Motion for Directed Verdict. Any Party may
move for a directed verdict at the close of an opponent's evidence and
may offer evidence in the event that the motion is not granted, without
having reserved the right to do so to the same extent as if the motion
had not been made. A Party may also move for a directed verdict at the
close of all the evidence. A motion for a directed verdict shall state
the grounds it is based upon. The Presiding Officer may act upon the motion
when it is presented, or may wait until the close of all the evidence.
(5) Motion to Dismiss for Failure to Prosecute or
Comply with Orders. Any Party may move to dismiss for failure of another
Party to prosecute or to comply with 360 CMR 1.00, or with any order of
the Presiding Officer. When the record shows that the Party has failed
to file Papers required by 360 CMR 1.00, or file a responsive pleading,
or respond to notices or comply with any order, or if the record otherwise
indicates an intention not to prosecute a claim or action, the Presiding
Officer may issue an order requiring the Party to show cause why his claim
or action should not be dismissed for failure to prosecute. If the Party
fails to show cause, the claim or action may be dismissed with prejudice.
(6) Motion to Dismiss for Failure to State a Claim
Upon Which Relief Can Be Granted. In place of filing an Answer, or
otherwise, a Party may move that the Claim for Adjudicatory Proceeding
or Order to Show Cause be dismissed for failure to state a claim upon
which relief can be granted. In deciding whether to grant or deny a motion
to dismiss, the Presiding Officer shall assume to be true all facts alleged
in the Claim or Order, but not conclusions of law alleged therein. If,
on a motion to dismiss for failure to state a claim upon which relief
can be granted, matters outside the pleadings are presented to and not
excluded by the Presiding Officer, the motion shall be treated as one
for summary decision and disposed of as provided in 360 CMR 1.21(8),
and all Parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by 360 CMR 1.21(8).
The Presiding Officer may treat a motion to dismiss for failure to state
a claim upon which relief can be granted as a motion for more definite
statement. If the Presiding Officer determines that a motion for more
definite statement would be allowed and that the Claim or Order states
a claim upon which relief can be granted, the motion to dismiss shall
be denied, and the Presiding Officer shall order a more definite statement
to be filed. If the Party ordered to file a more definite statement fails
to do so within the time prescribed by the Presiding Officer, the Adjudicatory
Proceeding shall be dismissed with prejudice. If a more definite statement
is filed, the Presiding Officer shall read it, together with the Claim
or Order, and shall order the Proceeding to go forward if the Claim or
Order read together with the more definite statement can be answered and
states a claim upon which relief can be granted. Otherwise, the Adjudicatory
Proceeding shall be dismissed with prejudice.
If the Presiding Officer determines that a motion for more definite statement
would not be allowed and that the Claim or Order fails to state a claim
upon which relief can be granted, the motion to dismiss shall be granted
and the Adjudicatory Proceeding shall be dismissed with prejudice.
(7) Motion for Decision on the Pleadings. After
the pleadings are closed and within such time as not to delay the Adjudicatory
Proceeding, any Party may move for a decision on the pleadings. If matters
outside the pleadings are presented and not excluded by the Presiding
Officer, the motion shall be treated as one for summary decision and all
Parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by 360 CMR 1.21(8).
(8) Motion for Summary Decision. Any Party may
move with or without supporting affidavits for a summary decision in the
moving Party's favor upon all or any of the issues that are the subject
of the Adjudicatory Proceeding.
(a) Contents of Motion. A motion
for summary decision shall identify with particularity the issues on which
summary decision is sought, and shall state whether a hearing is requested
or the Party will allow the motion to be decided on the Papers filed in
support and opposition. The motion shall be accompanied by a memorandum
1. a statement of the issue
or issues presented;
2. an argument in summary
3. a short conclusion stating
precisely the relief sought.
(b) Affidavits. Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth
the kind of evidence on which reasonable persons are accustomed to rely
in the conduct of serious affairs and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith. The Presiding Officer may
permit affidavits to be supplemented or opposed by depositions, answers
to interrogatories, requests for admission of fact, or further affidavits.
When a motion for summary decision is made and supported as provided in
this rule, a Party opposing the motion may not rest upon the mere allegations
or denials of the Party's pleading, but must respond, by affidavits or
as otherwise provided herein, setting forth specific facts showing that
there is a genuine issue for hearing on the merits. If the Party does
not so respond, summary decision, if appropriate, shall be entered against
Should it appear from the affidavits of a Party opposing the motion that
he cannot for reasons stated present by affidavit facts essential to justify
his opposition to the motion, the Presiding Officer may deny the motion
for summary decision or may order a continuance to permit affidavits to
be obtained or discovery to be had or may make such other order as is
Should it appear to the satisfaction of the Presiding Officer at any time
that any of the affidavits presented pursuant to this rule are presented
in bad faith or solely for the purpose of delay, the Presiding Officer
shall order the Party filing the affidavits to pay the other Party the
amount of the reasonable expenses which the filing of the affidavits caused
him to incur, including reasonable attorney's fees.
(c) Decision on the Motion. The
Presiding Officer shall enter summary decision for the moving party if
the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving Party is entitled to
a decision in its favor as a matter or law. A summary decision, interlocutory
in character, may be rendered on any issue although there is a genuine
controversy as to other issues. When appropriate, summary decision may
be rendered against the moving Party. A ruling on a motion for summary
decision shall contain a statement of the reasons for the decision, including
a determination of every issue of fact or law necessary to the ruling.
If on motion for summary decision a decision is not rendered upon the
whole case or for all the relief asked and a hearing on the merits is
necessary, the Presiding Officer, by examining the pleadings and evidence,
and by interrogating counsel if there is a hearing on the motion, if practicable,
shall ascertain what material facts exist without substantial controversy
and what material facts are actually and in good faith controverted. The
Presiding Officer shall thereupon make an order specifying the facts that
appear without substantial controversy including the extent to which the
amount of damages, costs, or penalties, or other relief is not in controversy,
and directing further proceedings as are just. At the hearing on the merits,
the facts so specified shall be deemed established and said hearing shall
be conducted accordingly.
(9) Motion for Substitution of Parties. The Presiding
Officer may, on motion, at any time in the course of an Adjudicatory Proceeding,
permit such substitution of Parties as justice or convenience may require.
(10) Motion for Consolidation of Proceedings.
Where there is more than one pending Adjudicatory Proceeding and these
Proceedings involve common questions of law or fact any Party may move
for consolidation of the Proceedings, and in making said motion shall
identify with particularity the common questions of law or fact and the
Presiding Officer may in his discretion consolidate the Proceedings.
(1) Scope of Discovery. Unless otherwise provided
by the Presiding Officer or these rules, the scope of discovery shall
be the same as that allowed under Massachusetts law and 360 CMR 1.22
shall be construed in accordance with Massachusetts law.
(a) General. Subject to the limits
of 360 CMR(1)(b) and (c), discovery may be obtained as to any matter,
not privileged, which is relevant to the subject matter involved in the
Adjudicatory Proceeding, whether it relates to the claim or defense of
the Party seeking discovery or to the claim or defense of any other Party,
including the description, nature, custody, condition and location of
any books, documents or other tangible things and the identity and location
of persons having knowledge of any discoverable matter. It is not ground
for objection that the information sought will be inadmissible at the
hearing if the information sought appears reasonably calculated to lead
to the discovery of admissible evidence.
(b) Material Prepared in Anticipation
of Adjudicatory Proceeding. Subject to the provisions of 360 CMR
1.22(c), a Party may obtain discovery of documents and tangible things
otherwise discoverable under 360 CMR 1.22 and prepared in anticipation
of or in preparation for an Adjudicatory Proceeding by or for another
Party or by or for that other Party's representative (including his attorney,
consultant, surety, indemnitor, insurer, or agent) only upon a showing
that the Party seeking discovery has substantial need of the materials
in the preparation of his case and that he is unable without undue hardship
to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has
been made, the Presiding Officer shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an attorney
or other representative of a Party concerning the subject matter of the
A Party may obtain without the required showing a statement concerning
the subject matter of the Proceeding which was previously made by that
Party. Upon request, a person not a Party may obtain without the required
showing a statement concerning the action or its subject matter previously
made by that person. If the request is refused, the person may move for
an order from the Presiding Officer. For purposes of 360 CMR 1.22(1)(b),
a statement previously made is a written statement signed or otherwise
adopted or approved by the person making it, or a stenographic, mechanical,
electrical, or other recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement by the person making
it and contemporaneously recorded.
(c) Experts Retained for Purposes of
Adjudicatory Proceeding. Discovery of facts known and opinions held
by experts, otherwise discoverable under 360 CMR 1.22(1)(a) and acquired
or developed in anticipation of or in preparation for an Adjudicatory
Proceeding may be obtained only as follows:
1. A Party may through
interrogatories require any other Party to identify each person whom the
other Party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state
the substance of the facts and opinions to which the expert is expected
to testify and a summary of the grounds for each opinion.
2. A Party may through
interrogatories require any other Party to identify facts known or opinions
held by an expert who has been retained or specially employed by another
Party in anticipation of an Adjudicatory Proceeding or in preparation
therefore and who is not expected to be called as a witness at the hearing,
only upon a showing of exceptional circumstances under which it is impracticable
for the Party seeking discovery to obtain facts or opinions on the same
subject by other means. Unless manifest injustice would result, the Presiding
Officer shall require the Party seeking the discovery to pay the expert
a reasonable fee for time spent in responding to such discovery and may
require the Party seeking discovery to pay the other Party a fair portion
of its fees and expenses reasonably incurred by the latter party in obtaining
the discovery responses of the expert.
(2) Methods of discovery. Discovery may be obtained
through requests for production of documents or other tangible things,
depositions, interrogatories, and requests for admission of fact, as provided
in 360 CMR 1.22(3) through (6).
(3) Requests for Production of Documents or Other
Tangible Things and Entry Upon Land for Inspection and Other Purposes.
Any Party may request any other Party to produce or make available for
inspection or copying any documents or tangible things, not privileged,
not previously supplied, and which are in the possession, custody, or
control of the Party upon whom the request is made. Any Party may request
any other Party to permit entry upon designated land or other property
in the possession or control of the party upon whom the request is served
for the purpose of gathering information within the scope of 360 CMR
(a) Procedure. The request may
be served upon a Party after commencement of the action and shall set
forth the items to be inspected by individual item or category with reasonable
particularity. Where the request is directed to the Authority, inspection
shall be made at the office of the Authority or such other place as the
Authority shall designate. The Party upon whom request is served shall
respond within 30 days unless the Presiding Officer has established a
shorter time period.
(b) Authority Costs. When a request
is served upon the Authority, the Authority shall be entitled to the fee
per page for copies as determined from time to time by the Executive Office
for Administration and Finance.
(4) Depositions. The testimony of any witness
may be taken by deposition only on motion made by a Party and approved
by the Presiding Officer.
(a) Form and Content. There shall
be at least ten days notice to all Parties of a motion to take a deposition.
A motion requesting a deposition shall state the name and address of the
witness to be deposed, the subject matter concerning which the witness
is expected to testify, the time and place of taking the deposition, the
name and address of the person before whom the deposition is desired and
the reason why such deposition should be taken.
(b) Authorization to Take. The
Presiding Officer shall allow the motion only:
1. if the Parties have
agreed to submit the deposition in lieu of testimony by the witness or
witnesses to be deposed;
2. if the deposition will
not unreasonably delay the Proceeding, the information sought is significant,
not privileged, cannot be discovered by alternative means, and the witness
to be deposed cannot appear before the Presiding Officer for the hearing
or cannot appear for the hearing without substantial hardship; or,
3. if there is a substantial
reason to believe that admissible, relevant, and probative evidence may
be destroyed or otherwise not be available for presentation by a witness
at the hearing.
If the motion is allowed, the Presiding Officer shall require the Party
seeking the deposition to give at least five days notice of the taking
of the deposition to all Parties.
(c) Person Before Whom Deposition is
Taken. Depositions shall be taken orally before a person having the
power to administer oaths.
(d) Scope and Conduct of Deposition.
Every witness testifying upon deposition shall be duly sworn and put on
oath. Each Party shall have the right to cross-examine the witness. All
objections made during the deposition shall be noted. Objections shall
be in short form, stating the ground therefore. The testimony shall be
taken stenographically or by voice writing or recorded by any other means
ordered by the Presiding Officer. The transcription of the deposition
shall be submitted to the witness for examination and shall, unless waived,
be signed by the witness and certified by the officer before whom the
deposition is taken. Any changes in form or substance which the witness
desires to make shall be entered upon the deposition by the officer with
a statement of the reasons given by the witness for making them. The deposition
shall then be signed by the witness, unless the Parties by stipulation
waive the signing or the witness is ill or cannot be found or refuses
to sign. If the deposition is not signed by the witness within 30 days
of submission to him, the officer shall sign it and state on the record
the fact of the waiver or the reason, if any, why the witness has not
signed the deposition.
(e) Recording by Other Than Stenographic
Means. The Presiding Officer may order that the testimony at a deposition
be recorded by other than stenographic means, in which event the Order
shall designate the manner of recording, preserving, and filing of the
deposition. The order may include other provisions to assure the recorded
testimony will be accurate and trustworthy.
(f) Use of deposition. Subject
to appropriate rulings on objections and the Parties' agreement regarding
its use, the deposition shall be received in evidence as if the testimony
contained therein had been given by the witness in the proceeding.
(5) Interrogatories. A Party may serve written
interrogatories upon any other Party. No Party, without approval of the
Presiding Officer, shall serve more than 30 interrogatories, including
subsidiary or incidental questions. Each interrogatory shall be separately
and fully answered under the penalties of perjury unless it is objected
to, in which event the reasons for the objection shall be stated in lieu
of the answer; each answer or objection shall be preceded by the interrogatory
to which it responds. The answers are to be signed under oath by the Person
making them, the objections by the Person or attorney making them. The
answers and objections, if any, shall be served within 30 days or such
other time as the Presiding Officer specifies. Interrogatories may relate
to any matter which can be inquired into under this rule, and the answers
may be used to the extent permitted by these rules. The interrogatories
may be served upon the Petitioner after filing the Claim or Order, and
upon any other Party with or after service of the Claim or Order.
(a) An interrogatory otherwise proper
is not necessarily objectionable because an answer to the interrogatory
involves an opinion or condition that relates to fact or the application
of law to fact, but the Presiding Officer may order that such an interrogatory
need not be answered until after designated discovery has been completed,
or until another later time.
(b) Where the answer to an interrogatory
may be derived or ascertained from the business records of the Party upon
whom the interrogatory has been served or from an examination, audit,
or inspection of such business records, including a compilation, abstract
or summary thereof, and the burden of deriving or ascertaining the answer
is substantially the same for the Party served, it is a sufficient answer
to such interrogatory to specify the records from which the answer may
be derived or ascertained and to afford to the Party serving the interrogatory
reasonable opportunity to examine, audit, or inspect such records and
to make copies, compilations, abstracts, or summaries. A specification
shall be in sufficient detail to permit the interrogating Party to locate
and to identify, as readily as can the Party served, the records from
which the answer may be ascertained.
(6) Requests for admission. A Party may serve
upon any other Party a written request for admission of the truth of any
matters within the scope of discovery allowed by 360 CMR 1.22(1) and set
forth in the request that relate to statements or opinions of fact or
the application of law to fact, including the genuineness of any documents
described in the request. Copies of documents shall be served with the
request unless they have been or are otherwise furnished or made available
for inspection and copying. The request may be served upon the Petitioner
after filing of a Claim or Order and upon any other Party with or after
service of the Claim or Order.
(a) Each matter of which an admission
is requested shall be separately set forth. The matter is admitted unless,
with 30 days after service of the request, or within such shorter or longer
time as the Presiding Officer may allow, the Party to whom the request
is directed serves upon the Party requesting the admission either:
1. a written statement
signed by the Party under the penalties of perjury specifically:
a. denying the matter;
b. setting forth in
detail why the answering Party cannot truthfully admit or deny the matter;
2. a written objection
addressed to the matter, signed by the Party or his attorney.
If objection is made, the reasons therefor shall be stated. A denial shall
fairly meet the substance of the requested admission, and when good faith
requires that a Party qualify his answer or deny only a part of the matter
of which an admission is requested, he shall specify so much of it as
is true and qualify or deny the remainder. An answering Party may not
give lack of information or knowledge as a reason for failure to admit
or deny unless he states that he has made reasonable inquiry and that
the information known or readily obtainable by him is insufficient to
enable him to admit or deny. A Party who considers that a matter of which
an admission has been requested presents a genuine issue for hearing may
not, on that ground alone, object to the request; he may, subject to the
provisions of 360 CMR 1.22(6)(d), deny the matter or set forth reasons
why he cannot admit or deny it. Each admission, denial, objection, or
statement shall be preceded by the request to which it responds.
(b) The Party who has requested the admissions
may move to determine the sufficiency of the answers or objections. Unless
the Presiding Officer determines that an objection is justified, he shall
order that an answer be served. If the Presiding Officer determines that
an answer does not comply with the requirements of this rule, he may order
either that the matter is admitted or that an amended answer be served.
The Presiding Officer may, in lieu of these orders, determine that final
disposition of the request be made at a pre-hearing conference or at a
designated time prior to the hearing.
The provisions of 360 CMR 1.22(6)(d) apply to the award of expenses
incurred in relation to the motion.
(c) Any matter admitted under this rule
is conclusively established unless the Presiding Officer on motion permits
withdrawal or amendment of the admission. The Presiding Officer may permit
withdrawal or amendment when the presentation of the merits of the action
will be served thereby and the Party who obtained the admission fails
to satisfy the Presiding Officer that withdrawal or amendment will prejudice
him in maintaining his action or defense on the merits. Any admission
made by a Party under 360 CMR 1.22 is for the purpose of the pending
action only and is not an admission by him for any other purpose nor may
it be used against him in any other proceeding.
(d) Expenses for Failure to Admit.
If a Party fails to admit the genuineness of any documents or the truth
of any matters as requested under 360 CMR 1.22, and if the Party requesting
the admissions thereafter proves the genuineness of the documentation
or the truth of the matter, he may apply to the Presiding Officer for
an order requiring the other Party to pay him the reasonable expenses
incurred in making the proof, including reasonable attorney's fees. The
Presiding Officer shall make the order unless it finds that:
1. the request was objectionable;
2. the admission sought
was of no substantial importance;
3. the Party failing to
admit had reasonable grounds to believe that he might prevail on the matter;
4. there was other good
reason for the failure to admit.
(7) Protective Orders. A Party to whom a discovery
request is issued may move for good cause shown for a protective order.
The Presiding Officer may make any order which justice requires to protect
a Party or person from annoyance, embarrassment, oppression, or undue
burden or expense, and may direct one or more of the following:
(a) that the discovery not be had;
(b) that the discovery may be had only
on specified terms and conditions, including a designation of the time
(c) that the discovery may be had only
by a method of discovery other than that selected by the party seeking
(d) that certain matters not be inquired
into, or that the scope of the discovery be limited to certain matters;
(e) that a trade secret or other confidential
research, development, or commercial information not be disclosed or be
disclosed only in a designated way; or
(f) that the discovery be conducted with
no one present except persons designated by the Presiding Officer.
(8) Supplementation of Responses. A Party who
has responded to a request for discovery with a response that was complete
when made is under no duty to supplement his response to include information
subsequently acquired, except as follows:
(a) A Party is under a duty seasonably
to supplement his response with respect to any question directly addressed
1. the identity and location
of persons having knowledge of discoverable matters; and
2. the identity of each
person expected to be called as an expert witness at trial, the subject
matter on which he is expected to testify, and the substance of his testimony.
(b) A Party is under a duty seasonably
to amend a prior response if he obtains information upon the basis of
1. he knows that the response
was incorrect when made; or
2. he knows that the response
though correct when made is no longer true and the circumstances are such
that a failure to amend the response is in substance a knowing concealment.
(c) A duty to supplement responses may
be imposed by order of the Presiding Officer, agreement of the Parties,
or at any time prior to a hearing on the merits through new requests for
supplementation of prior responses.
(9) Failure to Make Discovery: Sanctions.
(a) Motion to Compel Discovery.
A Party may move for an order compelling discovery if a deponent fails
to answer a question propounded in a deposition, if a Party fails to answer
an interrogatory, or if a Party fails to allow the inspection of documents
or things as requested. The discovering Party may move for an order compelling
an answer or a designation of an order compelling inspection in accordance
with the request. For purposes of 360 CMR 1.22(9), an evasive or incomplete
answer is to be treated as a failure to answer.
(b) Failure to Comply with an Order.
If a Party fails to obey an order to provide or permit discovery, the
Presiding Officer may make such order in regard to the failure as are
1. An order that the matters
regarding which the order was made or any other designated facts shall
be taken to be established for the purposes of the action in accordance
with the claim of the Party obtaining the order;
2. An order refusing to
allow the disobedient Party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters in evidence;
3. An order striking a
pleading or part thereof, or staying further proceedings until the order
is obeyed, or dismissing the action or proceeding or any part thereof,
or rendering a decision by default against the disobedient Party. Such
decision shall be in writing and comply with the provisions of 360 CMR
(10) Failure of Party to Attend his Own Deposition
or Serve Answers to Interrogatories or Respond to Request for Inspection
or Entry Upon Land. If a Party willfully fails:
(a) to appear before the officer who is
to take his deposition, after being served with a proper notice; or
(b) to serve answers or objections to
interrogatories, after proper service of the interrogatories; or
(c) to serve a written response to a request
for inspection or entry upon land after proper service of the request.
The Presiding Officer may make such orders in regard to the failure as
are just, and among others it may take any action authorized under 360 CMR
In lieu of any order or in addition thereto, the Presiding Officer may
require the Party failing to act or the attorney advising him or both
to pay the reasonable expenses, including attorney's fees, caused by the
failure. In lieu of any of the foregoing orders or in addition thereto,
the Presiding Officer may require the Party failing to obey the order
or the attorney advising him or both to pay the reasonable expenses, including
attorney's fees, caused by the failure.
1.23: Intervention and Participation
(1) Intervention. Any Person not initially a Party
to the Proceeding may file a timely motion to intervene as a Party in
the whole or a portion of the Proceeding. The Presiding Officer shall
allow the motion if the moving Party establishes:
(a) that he is substantially and specifically
affected by the Proceeding;
(b) he is so situated that the disposition
of the Proceeding may as a practical matter impair or impede his ability
to protect the interest affected by the Proceeding and his interest is
not adequately represented by existing Parties; or
(c) that he has a constitutional or statutory
right to intervene.
(2) Participation. Any interested Person not initially
a Party to the Proceeding may file a timely motion to participate in the
Proceeding by arguing orally at the close of the hearing and filing such
written memoranda of law as the Presiding Officer deems appropriate. The
decision to allow a Person to participate shall rest within the discretion
of the Presiding Officer and shall be based upon a consideration of whether
the Person will be affected by the outcome of the Proceeding. Permission
to participate shall be limited to the right to argue orally at the close
of the hearing and the right to file a brief. Permission to participate,
unless otherwise stated, shall not be deemed to constitute an expression
that the Person allowed to participate is a Party in interest who may
be aggrieved by any Final Decision. A Person who moved to intervene and
who was allowed only to participate may do so without waiving his right
to administrative or judicial review of the denial of said motion to intervene.
(3) Form and Content of Motion. A motion to intervene
or participate shall state the name and address of the Person seeking
to intervene or participate. If the motion is filed by a group of persons
seeking to intervene collectively as a group pursuant to an applicable
statute, the motion shall state the name and address of each Person in
the group and shall identify the group's attorney or the Authorized Representative.
Any Paper served on the group's attorney or Authorized Representative
shall be deemed served on the entire group; if no representative is specifically
stated in the motion, the first Person mentioned in the motion as a member
of the group shall be deemed the representative of the group.
(4) Timing of the Motion. A motion to intervene
or participate shall state the grounds for the motion and set forth the
claim or defense as to which intervention or participation is sought.
Unless an applicable statute provides a date for filing, the Presiding
Officer may establish a date for the filing of such motions to intervene
(5) Rights of Intervenors. Every Person or group
of Persons permitted to intervene as a Party, shall have all the rights
of and be subject to all limitations imposed upon a Party; however, the
Authority or Presiding Officer may exclude repetitive or irrelevant material.
Every motion to intervene shall be treated as a motion in the alternative
(6) Intervention to Protect the Environment. Pursuant
to M.G.L. c. 30A, § 10A, any group of ten or more Persons may
intervene collectively as a Party in any Adjudicatory Proceeding in which
damage to the environment, as defined in M.G.L. c. 214, § 7A,
is or might be at issue; provided however, that such intervention shall
be limited to the issue of damage to the environment and the elimination
or reduction thereof in order that any decision in such Adjudicatory Proceeding
shall include the disposition of such issue. Such intervention shall be
by motion filed in accordance with 360 CMR 1.21(1). The motion shall state
the name and address of each of the ten or more Persons in the group.
The motion shall also separately state the name and address of that member
of the group, the group's attorney, or the group's other agent who will
be the group's representative before the Authority. Said representative
shall have the sole authority to sign Papers for the group and to accept
service for the group. Any Paper served on the representative of the group
shall be deemed served on the entire group. If no representative is identified
specifically in the motion, the first person mentioned in the motion as
a member of the group shall be deemed the representative of the group.
A group that intervenes as a Party shall be collectively deemed a Party
as defined in 360 CMR 1.00, and shall have all of the rights and
privileges, duties and responsibilities of a Party as set forth in 360 CMR
1.00, except as limited by 360 CMR 1.23.
1.24: Hearings and Conferences
(1) Pre-hearing Conference. The Presiding Officer
may upon his own initiative or upon the application of any Party, call
upon the Parties to appear for a conference to consider:
(a) simplifying or clarifying the issues;
(b) the possibility of obtaining stipulations,
admissions, agreements on documents, understandings on matters already
of record or similar agreements which will avoid unnecessary proof;
(c) limiting the number of expert witnesses
or avoiding similar cumulative evidence, if the case is to be heard;
(d) the possibility of settlement or other
agreement disposing of all or any of the issues in dispute; and
(e) such other matters as may aid in the
disposition of the Adjudicatory Proceeding.
Those matters agreed upon by the Parties shall be electronically recorded
in the presence of the Parties and/or reduced to writing and shall be
signed by the Parties, and constitute part of the record. The scheduling
of a pre-hearing conference shall be solely within the discretion of the
(2) Submission Without a Hearing. A Party may
elect to waive his right to a hearing and to submit his case upon the
record or Papers properly submitted to the Presiding Officer.
(3) Prefiled Direct Testimony. The Presiding Officer
may, on his own motion, or on motion of any Party, order all Parties to
file within a reasonable time in advance of the hearing on the merits
the full written text of the testimony of their witnesses on direct examination,
including all exhibits to be offered in evidence. The Presiding Officer
may also require the filing of written rebuttal testimony within a reasonable
time after the filing of the direct testimony described in the preceding
sentence. All testimony filed pursuant to this rule shall be subject to
the penalties of perjury. Each witness whose testimony is filed pursuant
to this rule shall be made available for cross-examination at the hearing.
If a witness is not available for cross-examination at the hearing on
the merits, the written testimony of said witness shall be excluded from
the record unless the Parties agree otherwise.
(4) Hearings: When and Where Held. Hearings will
be held at a location designated by the Authority. Any Party may, by motion
and for good cause shown, request that a hearing be held at some other
location. Upon the motion of any Party and upon good cause shown, the
Presiding Officer may in his discretion advance a case for hearing.
(5) Conduct of Hearings.
(a) General. Hearings shall be
as formal or informal as may be reasonable and appropriate under the circumstances.
(b) Decorum. All Parties, Authorized
Representatives, witnesses, and other Persons present at a hearing shall
conduct themselves in a manner consistent with the standard of decorum
commonly observed in any court. Where such decorum is not observed, the
Presiding Officer may take appropriate action.
(c) Duties of Presiding Officer.
The Presiding Officer shall conduct the hearing, make all decisions regarding
admission or exclusion of evidence or any other procedural matters and
administer an oath or affirmation to all witnesses.
1. Rights of Parties.
Subject to the submission of prefiled direct testimony, all Parties have
the right to call and examine witnesses, present evidence, to cross-examine
witnesses who testify, make objections, submit rebuttal evidence and make
opening and closing arguments, and make oral arguments. Cross-examination
shall occur immediately after any witness' testimony has been received
or as soon thereafter as the Parties agree. The Presiding Officer shall
give each Party the opportunity for redirect and recross examination.
2. Order of Presentation.
The Petitioner, and all Parties supporting the Petitioner, shall have
the right to present their evidence and testimony first and upon completion
of such presentation, the Respondent, and all Parties supporting the Respondent,
shall have the right to present their evidence and testimony. The Presiding
Officer shall have the discretion to vary this order of presentation if
it will expedite the Proceeding or clarify the issues raised in the Proceeding;
or where there are multiple Parties where the evidence is particularly
within the knowledge of one Party, or where Adjudicatory Proceedings have
3. Proof of Violations.
Notwithstanding 360 CMR 1.24(5)(d)2., where the appeal concerns Authority
action under 360 CMR 2.00, the Authority shall have the burden of going
forward with and of proving the occurrence of any contested alleged violations.
The proof may consist of facts known to the Authority at the time it took
the action and facts that became known to the Authority after that date.
Following presentation of the Authority's evidence, the Person appealing
the action shall have the burden of presenting and of going forward with
any defense to the Authority's allegations. Each matter of controversy
shall be determined by the Presiding Officer upon a preponderance of the
4. Penalty Amount.
In an appeal of a penalty assessment notice in which the amount of the
penalty is at issue, after the Authority has met its burden of going forward
as required by 360 CMR 1.24(5)(d)3., the Petitioner shall have the
burden of going forward with and of proving facts to alter the amount
of the penalty assessed in the penalty assessment notice. Following presentation
of the Petitioner's evidence, the Authority may prove facts to support
the amount of the penalty assessed in the penalty assessment notice or
an alternative penalty amount. Each matter of controversy shall be determined
by the Presiding Officer upon a preponderance of the evidence.
(6) Witnesses and Evidence.
(a) Witnesses. A witness' testimony
shall be under oath or affirmation.
(b) Rules of Evidence. Unless otherwise
provided by any law, the rules of evidence observed by courts need not
be observed in these Adjudicatory Proceedings, but the rules of privilege
recognized by law shall be observed. Evidence may be admitted and given
probative effect if it is the kind of evidence on which reasonable persons
are accustomed to rely in the conduct of serious affairs. In a Proceeding
involving Authority action taken under 360 CMR 2.00, the results of sampling
and analysis of wastewater conducted according to required sampling and
analysis procedures and contained in the official records of the Authority
shall be admissible and such results shall be afforded a rebuttable presumption
of validity. The weight to be given evidence presented will be within
the discretion of the Presiding Officer.
(c) Offer of Proof. An offer of
proof made in connection with an objection taken to a ruling of the Presiding
Officer rejecting or excluding proffered testimony shall consist of a
statement of the substance of the evidence which the Party contends would
be adduced by such testimony; if the excluded evidence consists of evidence
in documentary or written form or reference to documents or records, a
copy of such evidence shall be marked for identification and shall constitute
the offer of proof.
(d) Evidence Included. All evidence,
including any records, investigative reports, documents and stipulations,
which is to be relied upon in making a Decision must be offered and made
a part of the record. Documentary evidence may be received in evidence
in the form of copies, excerpts or incorporation by reference. The Presiding
Officer may require any Party to submit additional evidence on any matter
relevant to the Adjudicatory Proceeding.
(e) Administrative Notice. The
Presiding Officer may take notice of any fact which may be judicially
noticed by Massachusetts courts and, in addition may take notice of general,
technical or scientific facts within the specialized knowledge of the
Authority. The Presiding Officer shall notify the Parties of the facts
so noticed and shall provide the Parties the opportunity to contest the
facts. The Presiding Officer may utilize the experience, technical competence
and specialized knowledge of the Authority in evaluating the evidence
(f) Objections. A Party seeking
to object to a ruling on evidence or procedure shall, at the time a ruling
is sought, make a timely objection or motion to strike and shall state
the grounds for the objection or motion. If a Party does not have the
opportunity to object to the ruling at the time it is made, or to request
a particular ruling at an appropriate time, the Party shall make his objection
and state the grounds for it, within three days of being notified of the
action taken or refused.
(g) Scope of Examination and Cross
Examination. A Party may interrogate any unwilling or hostile witness
by leading questions. A Party may call an adverse party or an officer,
director, or managing agent of a public or private corporation or of a
partnership or association which is an adverse party, and interrogate
by leading questions and contradict and impeach him in all respects as
if he had been called by the adverse Party, and the witness may be contradicted
and impeached by or on behalf of the adverse party also, and may be cross-examined
by the adverse Party only upon the subject matter of his examination in
chief. Any other witness may be cross-examined without regard to the scope
of his testimony, subject only to the Presiding Officer's discretion.
(7) Briefs. At the close of the evidence, the
Presiding Officer shall fix the terms for the filing briefs. The Presiding
Officer may require the Parties to submit proposed findings of fact and
conclusions of law, a proposed order, and supporting briefs.
(8) Transcript of Proceeding.
(a) Recordings and Transcripts
Testimony and argument at a hearing before the Presiding Officer shall
be recorded either electronically or stenographically. If the Presiding
Officer or any Party arranges for preparation of a hearing transcript,
a copy of the transcript shall be supplied to each other Party upon request
and the other Party shall pay the cost of the copy. Any Party, upon motion
and at his own expense, may order a stenographer to transcribe the proceedings.
In such event, a stenographic record shall be provided to the Presiding
Officer at no expense to the Authority and upon such other terms as the
Presiding Officer shall order.
(b) Correction of Transcript. The
official transcript may be corrected only to make it conform to the evidence
presented at the hearing. Transcript corrections must be agreed to by
all Parties and may be incorporated into the record only upon approval
by the Presiding Officer. Such corrections shall be made during the hearing
or as soon as practicable after the close of evidence, but not more than
ten days after termination of the hearing or receipt of the transcript,
unless the Presiding Officer orders otherwise. The Presiding Officer may
call for the submission of proposed corrections and may rule on the corrections
at appropriate times during the course of the Adjudicatory Proceeding.
(9) Settling the Record.
(a) Contents of Record. The record
of an Adjudicatory Proceeding shall include all evidence, including any
records, investigation reports, documents, and stipulations which any
Party wishes to be considered by the Presiding Officer in making his decision.
The record may include evidence that was the subject of an offer of proof.
Documentary evidence may be received in the form of copies or excerpts,
or by incorporation by reference. The record may also include pleadings,
memoranda of law, responses to discovery requests, deposition transcripts,
exhibits, and other Papers or documents which the Presiding Officer has
specifically designated a part of the record. The record shall be available
for inspection by the Parties upon reasonable notice.
(b) Evidence After Completion.
Other than post-hearing briefs and memoranda, no evidence shall be entered
into the record after the close of evidence unless otherwise ordered by
the Presiding Officer.
(10) Reopening of Proceeding. On his own motion
or on motion of any Party, the Presiding Officer may at any time before
a Tentative or Final Decision is issued reopen the Proceeding for the
purpose of receiving new evidence.
(11) Motion for Reconsideration. Any Party may
move for reconsideration of any decision by the Presiding Officer, including
a Final Decision, by filing a motion setting forth specifically the grounds
or statutory provision relied upon to sustain the motion. Such a motion
shall be filed within ten days from the date a copy of the Final Decision
(12) Further Review. After the issuance of Final
Decision, any Party who has the right to seek administrative or judicial
review of the Decision may file with the appropriate administrative agency
(13) Withdrawal of Exhibits. After a Decision
has become final and all appeal periods have lapsed, the Presiding Officer
may in his discretion, upon motion, permit the withdrawal of original
exhibits by the Party or Person entitled to the exhibits.
The Presiding Officer may issue, vacate, modify and enforce subpoenas
requiring the attendance and testimony of witnesses and/or the production
of documents or other evidence in accordance with the following provisions.
(1) Issuance. Every subpoena shall be issued in
the name of the Authority by a notary public, justice of the peace, or
the Presiding Officer. Every subpoena shall show on its face the name
and address of the requesting Party. Notice shall not be required for
issuance of a subpoena. The Authority may prescribe the form of subpoena
but, insofar as practicable, such form shall adhere to the form used in
civil cases before the courts.
(2) Subpoena for Attendance of Witness. A subpoena
commanding the person to whom it is directed shall direct said person
to attend and give testimony at a time and place therein specified, which
may include attendance at a hearing. A subpoena for the attendance of
a witness at a deposition shall not be issued by the Authority or any
Party until after the Presiding Officer has allowed a motion for the taking
of a deposition as provided for by these rules. A subpoena for the taking
of a deposition, and the place of such deposition, shall comply with the
requirements of Massachusetts Rule of Civil Procedure 45(d).
(3) Subpoena for Production of Documentary Evidence.
A subpoena may also command the person to whom it is directed to produce
the books, papers, documents, or tangible things designated therein; but
the Presiding Officer, upon motion made promptly and in any event at or
before the time specified in the subpoena for compliance, may vacate or
modify the subpoena as provided in 360 CMR 1.25(4).
(4) Motion to Vacate or Modify. The person to
whom a subpoena is directed or a Party on his behalf, may, within a reasonable
period, file a written motion to vacate or modify the subpoena.The Party
who requested the subpoena shall be given prompt notice of the motion.
The Presiding Officer may grant such a motion in whole or in part upon
a finding that the testimony, or the evidence whose production is requested,
does not relate with reasonable directness to any matter in question or
upon finding that a subpoena for the attendance of a witness or the production
of evidence is unreasonable or oppressive or has not been issued a reasonable
period in advance of the time when the evidence is required to be produced.
(5) Costs. A witness who is not a Party and is
summoned to appear at a hearing or deposition shall be paid the same fees
for attendance and travel as required by in civil cases before Massachusetts
courts. The requesting Party shall pay all costs involved with the subpoena,
including fees for attendance and travel, except that where the subpoena
is issued on behalf of the Authority as a Party, fees and travel costs
need not be tendered.
(6) Failure to comply with a subpoena. If any
person fails to comply with a subpoena issued in the name of the Authority
and not vacated or modified by the Presiding Officer, the Party who requested
the subpoena may, pursuant to M.G.L. c. 30A, § 12(5), apply
to the Superior Court for an order requiring the attendance of such person
as required by the subpoena and the giving of testimony or production
of evidence. Any person failing to obey the court's order may be punished
by the court for contempt pursuant to M.G.L. c. 30A, § 12(5).
(1) Tentative Decisions.
(a) Mandatory Tentative Decision.
A Tentative Decision shall be required only if the decision following
the Adjudicatory Proceeding will be rendered by a majority of officials
of the Authority who have neither heard nor read the evidence, and if
a Party requests a Tentative Decision.
(b) Optional Tentative Decision.
Prior to the close of the hearing on the merits, any Party may make a
written or oral request for a Tentative Decision. If the request is granted,
or if the Presiding Officer determines that a Tentative Decision should
be issued in the interest of justice, a written Tentative Decision shall
(c) Issuance of Tentative Decision.
Every Tentative Decision shall be in writing and shall contain a statement
of the reasons therefor, including a determination of every issue of fact
or law necessary to the Decision. Whenever a Tentative Decision is rendered,
each Party shall have the opportunity to file a written objection to the
Decision stating the grounds of the objection. The objection shall be
made within seven days from the Party's receipt of the Tentative Decision.
(2) Final Decisions. Every Final Decision shall
be in writing and shall be approved by the Executive Director of the Authority.
Every Final Decision shall contain a statement of the reasons therefor,
including a determination of every issue of fact or law necessary to the
Decision, provided that, if a Final Decision was preceded by a Tentative
Decision, the Final Decision may incorporate by reference determinations
set forth in the Tentative Decision, subject to such modifications as
the Presiding Officer deems appropriate. The Final Decision shall also
notify the Parties of their right to judicial review of the Decision pursuant
to M.G.L. c. 30A, § 14.
1.27: Stipulations and Agreements
(1) Stipulations. The Parties may make written
stipulations of fact or law, or may make oral stipulations at a hearing.
In making findings of fact or conclusions of law, the Presiding Officer
need not be bound by any stipulation to which the Authority is not a party.
(2) Settlement by Agreement of the Parties. If
at any time all Parties to the Adjudicatory Proceeding agree to dispose
of the Proceeding by stipulation, agreed settlement, or consent order,
the Parties shall put such agreement in writing and submit it for approval
to the Authority.
Every Settlement by Agreement of the Parties shall include a provision
that, if the Authority approves the agreement, the Parties waive whatever
rights they have to:
(a) judicial or administrative review
of the Authority action or decision that is the subject of the Adjudicatory
(b) rehearing, reargument, and reconsideration;
(c) notice of the Parties' rights of appeal
and of rehearing, reargument and reconsideration; and
(d) a Tentative or Final Decision.
If the Authority determines that the proposed agreement is in accordance
with the Authority's responsibilities to protect the interests entrusted
to it by law, the Authority shall issue a final decision approving the
agreement. The final decision shall be signed by the Executive Director
of the Authority. The final decision shall not be subject to the rule
concerning tentative decisions. If the Authority determines that the proposed
agreement is not in accordance with the Authority's responsibilities to
protect the interests entrusted to it by law, the Authority shall refuse
to approve the agreement, shall notify the Parties to that effect, and
the Adjudicatory Proceeding shall go forward.
360 CMR 1.00: St. 1984, c. 372