980 C.M.R. 1.04 – Institution of an Adjudicatory Proceeding

(1) Commencement of Proceeding.
1. (a) Proceedings may be initiated by a petition to construct, a petition for a certificate of environmental impact and public interest, an application for a Consolidated Permit or a De Novo Adjudication, a petition for other matters over which the Board has jurisdiction, or the Board's own motion. Commencement of a proceeding does not begin the review time frame that is used to determine the deadline for issuance of a Constructive Approval as described in 980 CMR 13.02(3)(a): Review Timeframe or 980 CMR 17.00: Constructive Approvals.
2. (b) In filing a petition to construct a Facility, a petition for a certificate of environmental impact and public interest, an application for a Consolidated Permit, or an application for a De Novo Adjudication, an Applicant shall follow the form required by the Board, as updated from time to time. A petition for a certificate of environmental impact and public interest shall be filed consistent with the requirements in 980 CMR 6.00: Certification of Environmental Impact and Public Need. An application for a Consolidated Permit shall be filed consistent with the requirements in 980 CMR 13.00: Consolidated Permits for Clean Energy Infrastructure Facilities. A petition for a De Novo Adjudication of a Consolidated Local Permit application shall be filed consistent with the requirements in 980 CMR 14.00: De Novo Adjudications of Consolidated Local Permit Applications.
3. (c) An Applicant filing a petition to construct a Facility or an application for an EFSB Consolidated Permit shall demonstrate compliance with the cumulative impact analysis requirements in 980 CMR 15.00: Cumulative Impact Analysis and Standards for Applying Site Suitability Criteria. An Applicant filing a petition to construct a Facility or an application for an EFSB Consolidated Permit shall demonstrate compliance with the pre-filing consultation and community engagement requirements in 980 CMR 16.00: Pre- filing Consultation and Engagement Requirements.
(2) Presiding Officer.
1. (a) A Presiding Officer shall be assigned by the Director to conduct each adjudicatory proceeding. The Presiding Officer shall have the authority to take all actions necessary to ensure a fair, orderly and efficient proceeding. Such actions may include, but are not limited to: conducting evidentiary and public comment hearings; conducting site visits; ruling on petitions to intervene or to participate in a proceeding; establishing ground rules for a proceeding; holding procedural or other conferences; regulating the course and schedule of the hearing; prescribing the order in which evidence shall be presented; administering oaths and affirmations; examining witnesses and requiring them to produce evidence which will aid in the determination of any question of law or fact at issue; disposing of procedural requests or similar matters; hearing and ruling upon motions; issuing subpoenas; causing depositions to be taken; ruling upon offers of proof and receiving relevant material and probative evidence; fixing the time for filing briefs, motions and other documents in connection with hearing; and excluding any person from a hearing for disrespectful, disorderly, or contumacious language or conduct.
2. (b) A Presiding Officer may at any time withdraw from a proceeding if the Presiding Officer deems himself or herself disqualified. Should a Presiding Officer withdraw, another Pre- siding Officer shall be appointed. Any Party who becomes aware of grounds that may exist for the disqualification of a Presiding Officer shall immediately file an affidavit which clearly sets forth the grounds for the disqualification.
(3) Notice of Adjudication.
1. (a) Notice shall be given at the beginning of any adjudicatory proceeding. The Presiding Officer shall give notice or shall require the applicant to give notice of an adjudication.
2. (b) A notice shall set forth a summary statement of the matter to be adjudicated. The notice shall state:
  1. 1. the name and address of the applicant;
  2. 2. the address of the Board and the statement that any person desiring further information or wishing to participate in the proceeding may contact the Board; and
  3. 3. the date, time, and address of any scheduled public comment hearing.
3. (c) In cases where a proposed CEIF or facility is the subject of the proceeding, notice shall be given by publication in at least two newspapers available in the vicinity of the proposed CEIF or Facility and as otherwise ordered by the Presiding Officer. In cases where a proposed CEIF or Facility is not the subject of the proceeding, notice by publication shall be given as ordered by the Presiding Officer. Notice shall further be given by first class mail or Hand Delivery to any person required by law or regulation to be so notified and to such other persons as the Presiding Officer may direct. Additional notice or publication shall be made, if required by statute or regulation, in the manner prescribed therein. Unless otherwise directed by the Board or Presiding Officer, the applicant is responsible for all costs related to the publication and distribution of notice.
4. (d) In cases where a proposed CEIF or Facility is the subject of the proceeding, the notice shall contain a deadline for the filing of petitions to intervene as a party or participate as a limited participant. This deadline shall be no less than 14 days after the public comment hearing.
5. (e) In cases where a proposed CEIF or Facility is not the subject of the proceeding, the deadline for the filing of petitions to intervene as a party or participate as a limited participant shall be as ordered by the Presiding Officer.
6. (f) The Presiding Officer shall require the Applicant to provide notice by U.S. Mail to all property owners and renters within the following distances from a proposed project:
  1. 1. 300 feet from the edge of the right-of-way for linear projects or linear project components such as transmission lines and Gas pipelines;
  2. 2. one-quarter mile from the property line for projects and project components for electrical switching stations, substations, pipeline meter stations, Gas regulators, SCEGF and SCESF; and
  3. 3. one-half mile from the property line for electric Generating Facilities, LCEGF, Gas storage Facilities, LCESF, and Gas compressor stations.
Property owners and renters shall be determined by using publicly available data sources (such as MassGIS), to notify by first class mail or Hand Delivery any abutter who occupies, but does not own, the subject abutting real property. For Applicants seeking zoning exemptions, property owners shall be determined consistent with M.G.L. c. 40A, § 11. For purposes of satisfying this requirement, such notice shall be mailed (or hand delivered) at least two weeks before the public comment hearing to each known U.S. Mail address within the geographic areas prescribed above, and may be addressed without the occupant’s name. (g) Notice shall include notice of the availability of the Intervenor Support Grant Program as defined in 220 CMR 34.00: Intervenor Support Grant Program. (h) The Board shall provide language access services, including translation of documents and interpretation, consistent with its current Language Access Plan. The Board’s notice requirements shall be consistent with the current Public Involvement Plan developed by the Board pursuant to Executive Order No. 552.
(4) Repository of Documents. The Presiding Officer may require an applicant to place certain documents in one or more repositories to provide for public access to these documents. The Presiding Officer shall require the repository of documents consistent with the Board’s current Language Access Plan. A repository of documents is a public library, public office, applicant's office, or similar location where documents involved in a particular proceeding may be kept and made available to members of the public. If a repository is required, the applicant shall be responsible for placing the documents therein and making adequate arrangements for convenient public access to the documents. The Presiding Officer shall require the Applicant to post documents on its project website, and to ensure that the documents remain posted until the Board issues a final decision in the proceeding.
(5) Public Comment Hearing. When required by statute or otherwise determined appropriate by the Presiding Officer, the Board shall conduct a public comment hearing in one or more of the affected cities or towns in which a CEIF or Facility would be located. The Board shall conduct its public comment hearings in a mode that allows for both in-person and remote participation, where practicable. The Applicant shall be responsible for any costs relating to audio-video, and language interpretation services required to conduct the public comment hearing in such manner. A public comment hearing shall be conducted to afford members of the public an opportunity to comment on that matter. A public comment hearing shall be held as soon as practicable after the commencement of a proceeding. Comments made at a public comment hearing are not deemed to be evidence.