COVID-19 Impacts in Massachusetts: Entering Phase 3 and Restarting the Clock on State Permitting
Massachusetts moves into Phase 3 of its reopening plan on July 6, including the opening of fitness centers and health clubs, museums and aquariums, movie theaters and performance halls (at limited capacity), and casinos with limitations. Phase 3 openings in Boston begin July 13.
On July 2, 2020, Governor Baker issued COVID-19 Order No. 42, which rescinded his prior executive order suspending state permitting deadlines and extending the validity of state permits (COVID-19 Order No. 17). The new executive order resets the deadlines for constructive approvals, hearings, and decisions for state permits that had been on hold due to the coronavirus and continues the tolling of permit expiration dates, with a clear explanation of how to calculate amended expiration dates once the current declared state of emergency is lifted.
This and other updates on the Commonwealth’s response are collected on its website and the separate court system site. Beveridge & Diamond’s COVID-19 EH&S Resource Center is available as we work remotely throughout our seven offices, covering matters around the country and throughout the world. Here we review impacts to clients with pending matters in the state and federal courts, ongoing business operations in the Commonwealth, enforcement considerations, and environmental compliance deadlines.
Massachusetts Reopening Plan
The Commonwealth begins Phase 3 of its four-phase reopening plan on July 6, 2020, with a delayed start in Boston on July 13. Following the declaration of a state of emergency on March 10, 2020, and a series of orders that closed non-essential businesses, advised residents to stay at home, and prohibited gatherings of more than 10 people (actions that that effectively shut the Commonwealth down for two months), Governor Baker issued a comprehensive plan to open the Massachusetts economy on May 18, 2020. The plan contains four sequenced phases, as described in the Administration’s “Reopening MA Report.” This report provides detail on allowed commercial activities in each of the phases, which are called “start”, “cautious”, “vigilant” and “new normal.”
Phase 2 began earlier in June, with various components rolled out over time. Citing public health data that indicates some public health successes in Massachusetts, despite surging virus cases in more than half of the other states, Governor Baker announced that Phase 3 would commence on July 6 including the reopening of fitness centers and health clubs, museums and aquariums, movie theaters and performance halls (at limited capacity), and casinos with limitations. The Phase 3 start date in the City of Boston is slightly delayed, beginning July 13.
These developments followed the governor’s permission to re-start limited indoor restaurant service, to increase capacity for certain personal care businesses (such as nail salons and massage therapy), and to increase permissible occupancy levels in office space from 25 to 50%
Each re-opening phase is expected to last approximately three weeks, but the duration depends on COVID-19 public health data trends. As such, and given the potential for changes to that timeline or reversals, businesses should closely monitor the Commonwealth’s “Reopening Massachusetts” website for additional updates.
Public schools remained closed though the duration of the school year, with most childcare facilities also closed through the end of June. The Baker Administration released its “Initial Fall Reopening Guidance memo, which outlines various parameters that will govern Fall 2020 reopening plans for schools.
State Courts to Begin Reopening on July 13. Under prior orders issued by Massachusetts’ Supreme Judicial Court (SJC), state courthouses in Massachusetts remain closed to the public. Through a series of orders that updated the original closures and restrictions, the SJC previously closed the state courts to the public except to address emergency matters that cannot be resolved through videoconference or telephone hearing, through at least July 1, 2020. On June 25, the SJC issued its “Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (coronavirus) Pandemic.” This latest order will re-open state courthouses beginning on July 13, under a phased approach. The SJC’s order directs trial courts to determine what matters they will begin to hear in person on July 13, and to further expand in-person hearings beginning on August 10. The order direct courts to first prioritize emergency matters, then scheduled in-person proceedings (including bench trials), with additional categories lower on the priority list for entry into courthouses. The order identifies which individuals may access courts under the reopening plan. The order also permits cell phones and other devices in courtrooms given increased reliance on electronic information to facilitate communications and proceedings during the pandemic.
Civil Cases are Unstuck as Tolling of Civil Statutes of Limitation and Court Deadlines Ends. Civil cases that have been effectively stuck since the courthouse closures will benefit from the opening of courthouses, continued virtual court business, and the SJC’s June 25 order reaffirming that tolling of civil statutes of limitations will cease on June 30, and that those deadlines “will not be tolled any further unless there is a new surge in COVID-19 cases in the Commonwealth and the SJC determines that a new or extended period of tolling is needed.” Criminal statutes of limitation are tolled through September 14, due to the lack of grand jury availability. The SJC reiterated explicit instructions about how the new deadlines are to be calculated.
Jury Trials Delayed Until at Least September; Bench Trials May Begin Sooner and/or Virtually. While bench trials will resume beginning on July 13, jury trials in both civil and criminal cases scheduled through September 4 are continued to no earlier than September 8, 2020. For any in-progress trial at the time of the courthouse closure, a mistrial was declared.
Electronic Service Now Permitted in Many Instances. Parties in civil cases may use email for service of most pleadings under Mass R. Civil P.5(b) where the email addresses of the lawyers have been disclosed in previous filings with the court. The SJC’s order on March 30 cautioned attorneys that they must periodically check spam and quarantine folders to make sure they have not missed an email, but prohibited email service for summons and complaint, attachment, trustee process, third-party complaints, and subpoenas. This means that ongoing civil litigation is the main beneficiary of these rules, as new complaints, third-party complaints, and other more complicated matters will continue to require traditional service consistent with the additional consequences associated with those matters. In addition, pro se litigants cannot be served by email unless they assent.
Electronic Signatures. The SJC issued an order permitting the use of electronic signatures in Massachusetts Courts effective April 7, 2020. The order applies to “all courts and case types” and to attorneys and self-represented parties alike. Electronic signatures may take the form of a scanned signature, image representing the signature, or a "/s/ name of signatory" block (as is common practice in federal courts). Following the order, electronic signatures are permitted in all Massachusetts courts “unless the court specifically orders otherwise.” Electronic signatures also are acceptable for affidavits made under oath, although the party must make efforts to secure an original signature as soon as practicable after filing with the court.
Virtual Oral Arguments and Tolling at SJC and Appeals Court. Although all arguments at the Appeals Court in April were deemed submitted on the briefs on file without any oral argument unless otherwise ordered by the Court, after a pilot test in April, the Appeals Court has begun holding oral arguments by Zoom video conference with a live stream to the Appeals Court’s YouTube channel. In the Appeals Court’s May 26, 2020 Administrative Order 20-1, the Appeals Court extended virtual arguments through July, while noting that the courthouse is closed through June 1, and will likely remain closed through the end of June. In a separate Administrative Order 20-2 issued on the same day, the Appeals Court made explicit the tolling of deadlines for notices of appeal and other internal Appeals Court submission deadlines. The Appeals Court set new deadlines for notices of appeal and statutory deadlines based on SJC’s order of May 26, while setting three filing deadlines for briefs delayed by the tolling, based on the original applicable deadline. Notably, there is no change for briefs and appendices due on or after June 1, 2020, which means that litigants in such cases will need to adhere to their current schedules barring any further orders. Other court deadlines that would expire between March 17 and May 31 were extended to June 15, 2020. The SJC will also be holding oral arguments by video conference with public access available.
Trial Court Helpline. The Trial Court has established a help line that the public and attorneys can call to ask general questions about civil and criminal cases and help them navigate the court system while it Is experiencing COVID-19 disruptions. The Help Line is staffed from 8:30 a.m. to 4:30 p.m., Monday through Friday, and can be reached by calling 833-91COURT. For emergency matters, the Trial Court has directed that litigants and lawyers should call the clerk or register office at the court. Court contact are located on the Courthouse Locator page available here.
Committees Looking at Operational and Budget Issues Caused by COVID-19. In addition, on May 13, the Trial Court announced the formation of two committees focused on the operational and budget issues facing the court system arising out of the pandemic. The committees appear poised to tackle reopening issues as well as the expansion of virtual operations—and how to pay for it all.
Federal Courts are Open With Restrictions. The Federal District Court for the District of Massachusetts remains open with restrictions on visitors and limited counter hours for clerks (9 a.m. to 2 pm). By the Court’s General Order 20-21, all jury trials scheduled to begin before September 8 are postponed pending further order of the court. In order to keep the work on the court moving, judges have pivoted to holding hearings and conferences by telephone and video and issued a public notice regarding public access to these teleconferences and videoconference hearings.
First Circuit Court of Appeals Extends Deadlines But Not for Filing of Appeals. Following cancellation of the April sitting of the First Circuit Court of Appeals, this court too is holding oral arguments by video conference through the June session. In an explanation on its website, the First Circuit provided a link to its YouTube channel for live viewing and its archive of audio recordings of arguments. The court also suspended its requirement that appendices to brief be filed only in paper form, while anticipating paper filings at a later date. The clerk’s office is not accepting in-person filings and filers are directed to use the first floor drop-box.
Cities and towns have taken a variety of steps to confront the coronavirus in their municipalities that will interrupt day-to-day business in a variety of ways, including slowing permitting, responses to public record requests, and ongoing discussions on subjects outside the current crisis. Municipalities have declared states of emergency, closed town and city halls, and postponed municipal board and committee meetings. Some municipalities have closed parks and recreational areas to encourage social distancing and many delayed Annual Town Meetings and elections scheduled during the pandemic. As towns begin to hold town meetings, some are doing so outdoors or in large open spaces, while limiting in-person public access in some cases and facilitating public participation by virtual means.
On April 3, the Governor signed legislation that addressed constructive approvals, scheduling and continuance of annual town meetings, implementation of budgets, and other time-sensitive financial issues. Paralleling the extensions for state permits and appeals, the legislation allows local hearings to be continued during the state of emergency, although there is language that appears to provide boards and committees the discretion to hold virtual meetings. The legislation:
- Suspends the requirement for a local board to act commence a hearing within a specified period of time as of March 10, 2020 to be resumed 45 days after termination of the state of emergency (or later if provided by statute or rule);
- Suspends constructive approvals when a local board fails to act within specified period of time until 45 days after the state of emergency ends (or later if provided by statute or rule);
- Extends deadlines by which local permit applications are to be heard and acted upon, with that period resuming 45 days after the state of emergency ends (or later if provided by statute or rule);
- Continues all hearings for which a hearing was held before March 10, 2020 but not concluded until the first hearing date of the permit granting authority after the state of emergency ends, but not later than 45 days after the termination of the order; and
- Suspends the time for required recording of local permits or approvals with the Registry of Deeds.
In order to aid municipalities to carry on their business, on March 12, Governor Baker issued an order suspending some provisions of the state’s Open Meeting Law (G.L. c. 30A, § 20). This order eased the requirement to meet in a public place and permitted remote participation by all members of a meeting of a public board or committee provided the public has a way to monitor the proceedings in real time (e.g. telephone, internet, etc.). Where a municipality cannot accomplish real-time participation “due to economic hardship and despite best efforts” the municipality must post the transcript or recording on its website. Based on this order, many municipalities are rescheduling certain town meetings and hearings to occur by video or audio conference. Legislation subsequently codified the governor’s order.
Environmental Compliance Considerations
During the public health crisis presented by COVID-19—and the mandatory business closures resulting from it—businesses will need to keep a careful eye on environmental compliance and permitting. Environmental compliance requirements remain in effect, meaning that businesses will need to continue compliance with permits, environmental regulations, and other environmental requirements that apply to their operations.
Massachusetts and MassDEP
As of the date of this publication, the Massachusetts Department of Environmental Protection (MassDEP) has not issued broad guidance or policy updates regarding environmental compliance, enforcement, or flexibility mechanisms related to challenges presented by COVID-19. On a webinar on March 31, MassDEP Commissioner Marty Suuberg said that he did not expect to issue a document similar to US EPA’s enforcement memorandum discussed below. Instead, MassDEP has issued a sector-specific FAQ for Public Water Suppliers and Wastewater Service Providers, and has suspended bottle redemption enforcement. But apart from these limited measures MassDEP has not yet provided guidance or altered compliance requirements. A list of COVID-19 Guidance and Directives issued by state agencies is maintained here; businesses may want to check this page periodically as new items are added on a near-daily basis.
Other states, like California, have emphasized the importance of continued compliance during the COVID-19 crisis. With many government offices closed and staff working remotely, including much of the Massachusetts Department of Environmental Protection (MassDEP), it may be more difficult for some entities to carry out routine permitting and compliance actions. Nonetheless, Massachusetts businesses should assume that environmental compliance and permitting requirements continue to apply.
Through his initial COVID-19 Order No. 17, Governor Baker sought to ease the pressure of permitting and appeal deadlines under the authority of the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development. On July 2, the governor issued COVID-19 Order No. 42, which rescinded Order No. 17 and restarted permitting and appeal deadlines:
- Constructive approvals or denials (defined as those approvals or denials that take effect if the state does not act within a specified time) that would have issued between March 10 and July 1 but were suspended under Order No. 17 are now deemed to be issued on August 17, 2020 unless the state permitting agency otherwise acts before that date.
- Hearings that a state permitting agency would have been required to begin between March 10 and July 1 but were suspended under Order No. 17 are required to commence on or before August 10, 2020.
- Decisions and requests that a state permitting agency would have been required to issue or make between March 10 and July 1 but were suspended under Order No. 17 must be issued by the permitting agency on or before August 10, 2020.
- Appeal rights of any person aggrieved by an appealable state permitting decision that would have expired between March 10 and July 1 but were suspended under Order No. 17 are extended to August 10, 2020. Any appeal right that expires after July 1, 2020 must be exercised by the regular deadline or by August 10, 2020, whichever is later.
- Expiration dates of state permits remain tolled during the state of emergency.Any permitting approval valid as of March 10, 2020 will not expire during the state of emergency, and the new expiration date for such an approval will be calculated by determining how many days remained in the permit effectiveness as of March 10 and adding that number of days to the date of the eventual termination of the state of emergency. This tolling protection is not extended to permit holders who were in violation of their permits as of March 10.
Federal and U.S. EPA
EPA recently announced that it plans to rescind guidance “soon” that it issued in its March 26 “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” That guidance addresses a range of issues relating to environmental enforcement an compliance and COVID-19. EPA did not provide a specific timeframe for rescission of the guidance, and businesses should be very cautious in how they interpret and apply EPA’s enforcement guidance going forward.
EPA’s enforcement guidance addresses situations where EPA will apply enforcement discretion to pandemic-related non-compliance, where regulated entities follow the conditions set forth in the policy. Eligibility for the benefits of the policy depends on meeting the articulated conditions, including adequate documentation.
EPA conditions application of its enforcement discretion on a demonstration that all efforts have been be made to comply with environmental obligations. Where that is not “reasonably practicable” due to a COVID-19 related reason, documentation is critical. More specifically, EPA’s policy sets forth the following expectations:
- Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
- Identify the specific nature and dates of the noncompliance;
- Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- Return to compliance as soon as possible; and
- Document the information, action, or condition.
EPA’s policy, which is retroactive to March 13, 2020, covers the three most common instances of expected non-compliance: civil violations, routine compliance monitoring and reporting, and settlement agreement or consent decree obligations. The policy does not apply to CERCLA or RCRA Corrective Action sites, emergency reporting of accidental releases, pesticide product imports, state or tribal matters, or criminal actions.
Importantly, EPA’s guidance does not relieve or eliminate any compliance obligations or deadlines; rather, it indicates how EPA will take certain enforcement actions in light of COVID-19 impacts. The policy is detailed and, in some instances, nuanced, and we recommend careful assessment to determine whether it may be applicable to your operations. We have published a thorough analysis of EPA’s COVID-19 policy here.
Certain state governments and NGOs have sought to challenge EPA’s COVID-19 policy, which may indicate an increased scrutiny by citizen groups and state enforcement agencies even as EPA indicates it will consider COVID-19 considerations when enforcing federal environmental law. A coalition of environmental advocacy groups filed a lawsuit in April challenging the policy, and in May 13 nine states (New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia) filed a similar lawsuit arguing that EPA lacks authority to implement what the lawsuit calls an “effective waiver” of federal environmental law. Given the text of EPA’s COVID-19 policy, pending challenges to that policy, and the potential for increased outside scrutiny, businesses should remain diligent in their environmental compliance efforts and work with counsel to determine how to address any compliance challenges that arise, whether related to COVID-19 or otherwise. If EPA withdraws the guidance soon, as it has promised, it may render these challenges moot but the question of an as-applied challenge is still a possibility for any enforcement discretion afforded by EPA since the policy took effect on March 13.
Additional Compliance Resources
Additional resources for water, wastewater, waste, and recycling industries are available at: