Code of Massachusetts Regulations
301 CMR - EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
Title 301 CMR 11.00 - Mepa Regulations
Section 11.14 - Legal Challenges

Universal Citation: 301 MA Code of Regs 301.11

Current through Register 1531, September 27, 2024

(1) Notice of Intent to Commence Action. An Agency or Person alleging that the Secretary improperly decided that a Project requires an EIR shall provide notice of intent to commence an action or proceeding within 60 Days of the publication of notice of the Secretary's decision in the Environmental Monitor in accordance with 301 CMR 11.15(2). An Agency or Person alleging that the Secretary improperly decided that a single or final EIR complies with MEPA and 301 CMR 11.00 shall provide notice of intent to commence an action or proceeding within 60 Days of the publication of the notice of the availability of the single or final EIR in the Environmental Monitor in accordance with 301 CMR 11.15(2). This notice shall be provided on the form available from the MEPA Office to the Secretary, the Proponent, and the Attorney General. This notice shall include the EEA file number and shall identify with particularity the reasons why the decision is believed to be improper, and the point during MEPA review at which the matter complained of was raised. These notice procedures shall substitute for the notice and waiting period required in accordance with M.G.L. c. 214, § 7A.

(2) Notice of Agency Action.

(a) For any Project where a timely Notice of Intent is submitted to the Secretary in accordance with 301 CMR 11.14(1), the Secretary shall promptly forward such Notice of Intent to the Agencies that will take Agency Action on the Project.

(b) Any Agency or Person submitting a Notice of Intent for a Project pursuant to 301 CMR 11.14(1) may also submit a Request for Notice of Agency Actions to be taken on the Project. In that case, such Agency or Person must also send a copy of the Notice of Intent to those Agencies that will take Agency Action on the Project (as identified in the ENF, listed in any EIR, specified in any NPC, specified in any Agency comments, or included in any Secretary's certificate) and notify such Agency that it is requesting notice in accordance with 310 CMR 11.14(2)(c).

(c) Any Agency that has received a Notice of Intent and a Request for Notice in accordance with 301 CMR 11.14(2)(b) shall provide a true, accurate and complete copy of any Agency Action (and any Section 61 Findings) it takes on the Project to the Agency or Person who has submitted the Request for Notice no later than ten days following the Agency Action.

(3) Commencement of Action.

(a) For Project by a Person. An action or proceeding alleging that the Secretary improperly decided that a Project undertaken by a Person requires an EIR shall commence no later than the later of: 30 Days following the first issuance of a Permit, grant of Financial Assistance, or closing of a Land Transfer by an Agency; or 60 Days after the publication of the notice of the Secretary's decision in the Environmental Monitor in accordance with 301 CMR 11.15(2). An action or proceeding alleging that a single or final EIR for a Project undertaken by a Person fails to comply with MEPA and 301 CMR 11.00 shall commence no later than 30 Days following the first issuance of a Permit, grant of Financial Assistance, or closing of a Land Transfer by an Agency.

(b) For Project by an Agency An action or proceeding alleging that the Secretary improperly decided that a Project undertaken by an Agency requires an EIR shall commence no later than 120 Days after the publication of the notice of the Secretary's decision in the Environmental Monitor in accordance with 301 CMR 11.15(2). An action or proceeding alleging that a single or final EIR for a Project undertaken by an Agency fails to comply with the requirements of MEPA and 301 CMR 11.00 shall commence no later than 120 Days after the publication of the notice of the availability of the single or final EIR in the Environmental Monitor in accordance with 301 CMR 11.15(2).

(4) Issue Preclusion. No allegation shall be made in any action or proceeding challenging a decision by the Secretary, unless the matter complained of was raised previously at the appropriate point during MEPA review, provided that a matter may be raised upon a showing that it is material and that it was not reasonably possible with due diligence to raise it during MEPA review or that the matter sought raises critically important issues regarding the potential environmental impacts of the Project.

(5) Effect of Court's Determination. If a court determines that a Proponent knowingly concealed a material fact or knowingly submitted false information during MEPA review, there shall be no limit on the manner or time in which an action or proceeding may be commenced and the Secretary may require the Proponent to repeat any or all of the MEPA review for the Project.

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