310 CMR, § 33.06 - Community Petition Process

(1) Filing of Petition. On or after April 1, 1985, a community resident in a city or town in which an employer manufactures, uses, processes, or stores toxic or hazardous substances, who has reason to believe that the utilization of such substances is or may be endangering public health or safety, may file a petition with the municipal coordinator of that community requesting an investigation. The municipal coordinator may establish reasonable procedural rules for the filing of such petitions. Such a petition must include the following:

(a) The signature, name and residential address of the petitioner;

(b) A statement that the petition is filed under the provisions of M.G.L. c. Chapter 111F (or the "Right to Know" Law);

(c) A statement of the petitioner's grounds for belief that the use or presence of toxic or hazardous substances is or may be endangering public health or safety; and

(d) Any other information or data known to the petitioner which would assist the municipal coordinator in conducting an investigation, including;

1. the name of the employer(s) who are believed to manufacture, use, process or store the toxic or hazardous substance(s),

2. the name or names of the toxic or hazardous substance(s), if known to the petitioner;

3. any information concerning the effects of such substance(s);

4. any other relevant information or data.

(2) Multiple Signature Petitions.

(a) A single petition may be submitted by more than one resident, provided that the signature, name and address of each petitioner is is included. Such a petition may include a designation of one resident as the representative of all petitioners. Absent such a designation, the community resident whose name appears first on the petition shall be deemed the representative petitioner. Responses to such a petition may be provided to only the representative petitioner. Disclosure of information between and among community residents whose names appear on such a petition is disclosure to persons specifically authorized to receive such information; however, a person whose name is stricken from the petition pursuant to 310 CMR 33.06(3)(a) is not specifically authorized to receive such information.

(b) A municipal coordinator may consolidate petitions received from more than one resident concerning the same substance(s) and employer(s), provided that:

1. notification of each petition is provided to the employer(s) within five working days of receipt, and

2. the response to the consolidated petition is made within the appropriate period of time, measured from receipt of the first such petition, and

3. each petitioner receives a copy of the response.

(3) Response by Municipal Coordinator.

(a) Initial review. Upon receipt of a petition the municipal coordinator may within five working days review such petition for compliance with the requirements of 310 CMR 33.06(1)(a), (b), (c) and (d). A petition that fails to meet such requirements may be returned to the petitioner, along with a specification of which requirements are not met. In the case of a multiple signature petition, the municipal coordinator may return the petition to the representative petitioner. Where any names on a multiple signature petition are stricken for failure to provide a signature, name, or address within the community, the municipal coodinator may process the petition on behalf of the remaining petitioners, but must notify the representative petitioner. It shall be the obligation of the representative petitioner receiving such notice to inform those whose names were stricken.

(b) Notice to employer. Within five working days of receipt of a petition not returned under 310 CMR 33.06(1)(a), the municipal coordinator shall notify the relevant employer(s). Such notification must include either a copy of the petition or a brief summary of the petition, identifying the petitioner, the stated grounds of the petition, and any other information provided in the petition. The notice must afford the employer an opportunity to respond to the petition. This opportunity may be limited to material received by the municipal coordinator within a period of time specified in the notice, which shall be no less than four working days.

(c) Investigation. The municipal coordinator may, within 15 working days of receipt of a petition, determine to conduct an investigation of the alleged danger to public health and safety. Such investigation may, but need not, include any of the following measures for which the municipal coordinator has authority under existing statutes, ordinances, or by-laws;

1. requests for further information from the employer or petitioner;

2. inspection of the employer's workplace;

3. collection and analysis of air, water, soil, or discharge samples, including samples of material in the workplace;

4. any other investigatory measure.

Such investigation may also include review of MSDS information, literature research, inquiries to the Department of Public Health or other government agencies concerning the nature and effects of hazardous and toxic substances, and similar investigatory techniques. The investigation, if undertaken, must be completed within ten working days.

(d) Response to petition. At the conclusion of an investigation, if one is conducted, or within 15 working days of receipt of a petition [that is not rejected under 310 CMR 33.06(3)(a) ] if no investigation is conducted, the municipal coordinator shall prepare a written response to the petition. The response shall contain the municipal coordinator's determination of whether public health or safety is or may be endangered, and the recommendation of whatever measures, if any, the municipal coordinator believes are needed to protect public health and safety. The response s hall include :

1. a summary of the information contained in the petition;

2. a summary of the response, if any, made by the employer(s);

3. a recommendation to the Department on the release of MSDS(s) to the petitioner, according to the standards set forth in 310 CMR 33.06(4)(b);

4. the reasons for the municipal coordinator's determination;

5. a statement of what specific actions (by local or state officials), if any, the municipal coordinator proposes to take or recommend to protect public health or safety; and

6. any other information deemed relevant by the municipal coordinator.

7. the procedure for requesting review of the response by the Department.

(e) Factors in making determination. The municipal coordinator may, but need not, consider any or all of the following factors in making a determination under 310 CMR 33.06(3)(d), based on information then known to the municipal coordinator:

1. the nature and quantity of the hazardous or toxic substance(s) present;

2. the number of people who are being or may be exposed to the substance(s);

3. the proximity of the substances to sensitive populations, public or private drinking water supplies, or other significant potential receptors;

4. the employer's compliance or non-compliance with existing statutes, regulations, ordinances, or by-laws regulating the public health or safety;

5. authority vested in the municipal coordinator and in other public officials;

6. the degree of risk posed by the substance(s), relative to other known public health or safety concerns in the community; and

7. any other factor deemed relevant by the municipal coordinator.

(f) Distribution of municipal coordinator's response. Within 15 working days of receipt of a petition [that is not rejected under 310 CMR 33.06(3)(a) ], or within ten additional working days if an investigation is conducted, the municipal coordinator shall forward copies of the report to the Department's regional office (for the region in which the community is located) and to the petitioner (or representative petitioner). If an employer requests a copy of the report when making a response to a petition, the municipal coordinator shall also supply a copy of the report to the employer. The municipal coordinator may also provide a copy of the report to any official who has authority to take any action recommended in the report; the petitioner (or representative petitioner) and the employer shall be informed if any such official receives the report.

(g) Whenever the municipal coordinator determines that public health or safety is endangered, he or she may take whatever action is authorized by existing statute, ordinance, or by-law, to protect to public health or safety.

(h) Review by the Department. Any petitioning community resident who believes that the municipal coordinator's written response to the petition does not adequately address the matters contained in the petition may, within 15 working days of the date of response, file a written request that the Department review the response. Such a request shall be addressed to the appropriate r e gional office and shall include :

1. the signature, name and residential address of the resident;

2. a copy of the petition and any material filed therewith;

3. a copy of the municipal coordinator's written response; and

4. a written statement specifying the deficiencies of the municipal coordinator's response.

A copy of the request shall be filed simultaneously with the municipal coordinator. A single request for review may be filed by more than one resident, if the signature, name, and address of each was included in the original petition. The Department may consolidate requests for review received from more than one resident, provided that notification of each such petition is provided to the relevant employer(s) within five working days of receipt, and that the response to the consolidated petition is made within the appropriate period of time, measured from receipt of the first such petition.

(4) Action by the Department.

(a) Release of MSDS(s).

1. Within five working days of receipt of a municipal coordinator's recommendation that an MSDS be released, the regional office of the Department shall notify the relevant employer(s) and afford the employer(s) an opportunity to respond to the recommendation within four working days. If the employer makes a response, the employer shall simultaneously serve a copy of the response upon the petitioning resident or the representative petitioner of a group of petitioners.

2. If the employer indicates that there is no objection to the release of MSDS information, the Department shall release such information promptly. If the employer makes no response or indicates any objection, the Department within 15 working days of receipt of the municipal coordinator's recommendation shall determine whether release of MSDS information is appropriate as set forth in 310 CMR 33.06(4)(a)3. When the Department also receives a request to review the municipal coordinator's response, the determination may be delayed until the response required by 301 CMR 33.06(4)(b) is issued.

3. The Department shall not release MSDS information when, based on particular facts, it finds that:

a. the request is frivolous, or

b. the request is intended to harass the employer(s), or

c. the relevant employer(s) or substance(s) cannot reasonably be identified, or

d. the circumstances on which the petition is based are not rationally related to the release of MSDS information.

A written finding stating the Department's determination shall be provided to the petitioner (or representative petitioner) and the employer. A statement advising the petitioner (or representative petitioner) of the restrictions on disclosure of the information shall accompany any MSDS released. The Department may assess charges for copying MSDSs on the same basis as charges for copying public records.

(b) Review of response of municipal coordinator.

1. Within five working days of receipt of a request for review of a municipal coordinator's response to a petition, the regional office of the Department shall notify the relevant employer(s) of such request and afford the employer(s) an opportunity to respond to the request within four working days.

2. Within 15 working days of receipt of such a request for review, the Department shall review such request, MSDS information, the municipal coordinator's written response, any additional information provided by the municipal coordinator or the employer, and any other relevant information. The Department shall prepare a written response summarizing the information considered, the Department's determination of what actions, if any, it will take to alleviate any danger to public health or safety and the reasons for such determination. In making its determination, the Department may, but need not, consider any or all of the following factors:

a. the nature and quantity of the hazardous or toxic substances;

b. the number of people who are being or may be exposed to the substance(s);

c. the proximity of the substance to sensitive populations, public or private drinking water supplies, or other significant potential receptors;

d. the employer's compliance or non-compliance with existing statutes, regulations, ordinances, or by-laws regulating the public health or safety;

e. the Department's authority under existing law;

f. the degree of risk posed by the substance(s), relative to other known public health or safety concerns in the region; and

g. any other relevant factor.

3. The Department's written response shall be mailed to the community resident (or representative petitioner) who requested the review, the municipal coordinator, and the employer. A copy of the response may be provided to any official who is requested to take action to protect the public health and safety, provided that no MSDS shall be distributed to any such official absent compliance with the requirements of 310 CMR 33.05.

4. The Department may provide public record information as a part of its response. Such information may be disclosed by the recipient without regard to the provisions of M. G.L. c. 111F, § 21(b). In any transmittal of M.G.L. c. 111F information together with public record information, the information subject to the provisions of M.G.L. c. 111F, § 21(b) shall be clearly segregated from such public record information, and accompanied by a summary of the restrictions on disclosure of such information provided by said § 21(b).

5. The Department may take any action authorized by law to protect the public health or safety in response to a request for review. The Department's authority to act under any law shall not be impaired by any failure in making a written response under 310 CMR 33.06 to identify such an action as a measure to be taken to alleviate any risk to public health and safety. A determination that no action is to be taken shall not operate as a bar to any enforcement action under any statute, nor as a release of any claim or right of action based on conditions existing at the time such determination is made.

Notes

310 CMR, § 33.06