/>iUpdated May 14, 2020
The impacts of the new coronavirus and COVID-19 were swift across government, business, and everyday lives, resulting in shuttered businesses and remote working, a shock to the stock market, and a wide variety of responses at the state and local level. But as states and businesses look forward to a phased reopening employing a variety of approaches, we face a set of new regulations and practical challenges in Massachusetts. Having indicated that the stay-at-home advisory will expire on May 18, Governor Baker has provided some limited information about his reopening protocols. We expect the announcement of a full plan on Monday. In the meantime, Massachusetts residents are getting used to wearing masks and face coverings in accordance with the Governor’s order requiring them indoors and outdoors when social distancing is not possible.
Massachusetts has done an admirable job of collecting its statewide resources on its website and many localities have done the same. Beveridge & Diamond continues to work remotely throughout its 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.
State Courts
State Courts Closed Except for Emergency Matters Through at Least June 1. State courthouses in Massachusetts are closed to the public through at least June 1, 2020. Through a series of orders that updated the original closures and restrictions, the Massachusetts’ Supreme Judicial Court (SJC) has closed the state courts to the public except to address emergency matters that cannot be resolved through videoconference or telephone hearing, through at least June 1, 2020. However, in extending the closure the SJC also began addressing the status of civil cases that have effectively been on hold since state courthouses were first closed in mid-March, 2020. In its Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, the SJC looks to be trying to jumpstart some non-emergency matters that can be handled virtually. The SJC directs the Trial Court departments to “identify categories of matters that they will attempt to address virtually, in whole or in part, where practical to do so in view of skeletal court staffing, technological constraints, and the need to prioritize emergency matters, and where doing so is consistent with the protection of constitutional rights.” The Trial Courts issued new standing orders effective May 4 implementing the SJC’s order in different ways.
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.
Superior Court: Civil Case Uncertainty Remains But Virtual Hearings are Beginning in Superior Court. In Superior Court Standing Order 6-20, the court said it will address non-emergency civil and criminal matters “to the extent feasible with available staffing.” Rule 9A motions, Rule 16 conference, final pre-trial conferences, status conferences, and hearings on non-evidentiary motions in civil matters. According to the order, these will conducted by telephone or by video with arrangements for virtual public access “on request” by contacting the clerk. That process may be playing out unevenly, but indications are that certain matters are starting to move forward. For example, Beveridge & Diamond has three hearings in Superior Court scheduled for Zoom conference on a permitting matter this month, at least one indication on how things are progressing under this order.
Land Court: The Land Court’s Standing Order 5-20 is a bit more specific, indicating that Land Court Justices assigned to MISC cases “may advance” the matter remotely if it is practical to do so in their judgment. It is unclear if the Land Court will act sua sponte or only by motion to request the court advance a matter. The Standing Order also calls out Tax Lien Foreclosure Cases for such treatment, but excludes cases to determine the military status of a mortgagor (so-called Servicemembers Cases), which are effectively stayed except in an emergency.
More Electronic Filing Potentially Available. Protocols for filing electronically also appear to be improving. Because the trial courts are in the midst of a slow transition to electronic filing, availability of e-filing is an unpredictable hodgepodge county by county and court by court. The Superior Court order clarifies that in counties that do not have e-filing yet, the Clerk’s Offices may accept non-emergency filings by email in the discretion of the Clerk.
Some Courts are Temporarily Closed Entirely. In addition to the general limitation to just emergency matters, some courts are temporarily closed altogether to respond to a COVID-19 exposure for differing durations. As of May 14, 2020, just one courthouse in Northampton was closed. At times, the New Chardon Courthouse, the Land Court, Suffolk Superior Court, and John Adams Courthouse had been closed for cleaning and disinfection.
Mistrials for Current Trials and Delays for Others. Jury trials in civil and criminal cases scheduled through July 1, 2020 are continued to after July 1. Civil and criminal bench trials are continued to at least June 1, 2020, although they may be conducted virtually by the agreement of the parties and of the court. For any in-progress trial, a mistrial was declared.
Statutes of Limitations Tolled. The SJC tolled Massachusetts statutes of limitations from March 17, 2020 through May 31, 2020 and all deadlines set forth in state statutes or court rules, standing orders, or guidelines that would expire between March 16, 2020 and June 1, 2020 are tolled until June 1, 2020. This means that a state court deadline that would have run between March 17 and May 4 is extended to May 4, but deadlines beyond May 4 are not being tolled for that period.
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 at SJC and Appeals Court in May. 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. 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.
Federal Courts
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). Its original continuation of all jury trials scheduled through April 27, 2020 was extended to May 29, 2020 by the Court’s order on March 30. The Springfield courthouse had been closed from March 23 until March 27 as a result of concerns that a clerk’s office employee had Covid-19 symptoms. A subsequent test determined that that individual did not have the coronavirus. 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. In an explanation on its website, the First Circuit announced that all oral arguments for the April sitting of the court have been canceled and that the clerk’s office is not accepting in-person filings, although the drop-box is available. The deadline for non-emergency filings, including briefs, appendices, and petitions for rehearing due to be filed between March 26, 2020 and April 24, 2020 has been extended for 30 additional days. However, cases that are calendared for oral argument, have already been argued, or are otherwise expedited are excepted from this automatic extension. Importantly, deadlines for notices of appeal and other documents that give the First Circuit jurisdiction that are set by statute or rule are not extended but a party may request an extension and may also challenge an automatic extension.
Due to health concerns over the COVID-19 virus, the Clerk's Office for the U.S. Court of Appeals for the First Circuit will not accept in-person case filings at its intake window, until further notice. If you plan to file a paper document at the Moakley Courthouse, please use the drop-box located on the first floor by the main entrance. You can reach the Clerk's Office by phone at 617-748-9057.
Business Closures
While many businesses continue to operate across Massachusetts, the past weeks have seen a series of actions that curtail operations for many businesses. On March 10, 2020 Governor Charlie Baker declared a state of emergency in the Commonwealth to combat the spread of COVID-19. On March 23, Governor Baker issued COVID-19 Order No. 13 that prohibits gatherings of more than ten people and requires “nonessential businesses and organizations” to shutter their physical workplaces as of March 24, 2020, through April 7, 2020. The order was extended to May 5, 2020 by COVID-19 Order No. 21. On April 28, Governor Baker issued COVID-19 Order No. 30 that extended his prior orders closing non-essential businesses and prohibiting gatherings of 10 or more people through May 18, 2020. The Governor also extended Massachusetts’ stay-at-home advisory through May 18, 2020.
These Emergency Orders references a list of essential services that are exempt from the order. Categories of exempted essential services are drawn mostly from the recent guidance issued by the federal Department of Homeland Security and include:
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Health Care & Public Health
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Law Enforcement, Public Safety & First Responders
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Food & Agriculture
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Critical Manufacturing
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Transportation
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Energy (including electricity, petroleum, natural gas/propane, and steam)
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Water & Wastewater
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Public Works
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Communications and Information Technology
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Financial Services
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Defense Industry Base
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Chemical Manufacturing & Hazardous Materials
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Other Designated Community Based Essential Function & Government Operations
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News Media
Certain businesses and employees in the above categories may continue physical and in-person operations, but are “urged to follow social distancing protocols for workers in accordance with guidance from the Department of Public Health.” Businesses not on the list may request designation as an essential service, and many reportedly have done so.
The list of essential services also includes “Professional services (such as legal and accounting services) and payroll and employee benefit services, when necessary to assist in compliance with legally mandated activities and critical sector services or where failure to provide such services during the time of the order would result in significant prejudice.” This provision will allow law firms, consultants, and other service professionals to support clients engaged in certain functions.
Since the Emergency Order, the Baker administration has taken further actions applicable to food service, grocery stores, and other businesses in the commonwealth, and has closed all schools through May 4. On March 26, 2020, Governor Baker sought a Major Disaster Declaration from the federal government, which was granted the next day.
Since this is a rapidly evolving situation, we encourage businesses and citizens to monitor information provided by the Commonwealth on the State of Emergency, closures, and other actions at: https://www.mass.gov/info-details/covid-19-state-of-emergency.
Local Governments
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 schedule in April.
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:
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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);
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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);
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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);
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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
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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 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. The order only addresses state-issued permits, although there is pending legislation to address similar issues at the local level (as discussed above). The Order:
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Suspends constructive approvals when a state permitting authority fails to act within a specified period of time for until 45 days after the state of emergency ends;
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Extends requirements for hearings to commence within a certain time after filing of an appeal with the time period picking up 45 days after the state of emergency concludes;
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Extends requirements for state permitting agencies to issue a permit or appeal decision within a particular period of time, with that period resuming 45 days after the state of emergency ends;
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Extends the period for filing appeals of state decisions that fall within the state of emergency until 45 days after the termination of the state of emergency;
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Tolls the expiration of state permitting approvals that were valid on March 10, 2020 during the state of emergency, unless the permit holder was in violation of the terms of the permit on March 10, 2020; and
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Relaxes public participation requirements for the State Revolving Fund Intended Use Plan.
Based on COVID-19 Order No. 17, MassDEP is considering at least some permit applications “on hold” and has suspended related deadlines on those permitting actions until the state of emergency is lifted. At the same time, MassDEP continues work on permitting and other actions. Notably, enforcement orders are excluded from extensions and tolling under the order.
Federal and U.S. EPA
On March 26, the U.S. Environmental Protection Agency issued a guidance document entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” EPA’s March 26, 2020 guidance addresses a range of issues relating to environmental enforcement an compliance and COVID-19. The 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:
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Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
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Identify the specific nature and dates of the noncompliance;
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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;
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Return to compliance as soon as possible; and
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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 on 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.
Additional Compliance Resources
Additional resources for water, wastewater, waste, and recycling industries are available at:
