301 CMR 11.14 - Legal Challenges
(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, ยง
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.
Notes
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