Cape Cod Collaborative v. Director of the Department of Unemployment Assistance, et al. (Lawyers Weekly No. 11-051-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-436 Appeals Court CAPE COD COLLABORATIVE vs. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.[1] No. 15-P-436. Barnstable. January 7, 2016. – May 4, 2017. Present: Hanlon, Sullivan, & Maldonado, JJ. Employment Security, Partial unemployment, Eligibility for benefits, School bus driver, Judicial review. Civil action commenced in the Barnstable Division of the District Court Department on April 29, 2013. The case was heard by W. James O’Neill, J. David A. Guberman, Special Assistant Attorney General, for the defendant. Kevin F. Bresnahan for the plaintiff. MALDONADO, J. In this case, we consider whether Stephanie Hennis, a full-time bus driver for the Cape Cod Collaborative (collaborative),[2] is entitled to partial unemployment compensation benefits for the three days she did not work and was not paid during the week ending Saturday, November 24, 2012, which included the Thanksgiving recess. Because we conclude that G. L. c. 151A, § 28A(c), does not bar the payment of such benefits in the circumstances of this case, we reverse the judgment of the Barnstable Division of the District Court Department (District Court), which reached a contrary conclusion. Statutory framework. We begin with a brief overview of the Unemployment Insurance Law, G. L. c. 151A, so as to put the underlying facts in context. The fundamental purpose of the statute is to “afford benefits to [individuals] who are out of work and unable to secure work through no fault of their own.” Connolly v. Director of the Div. of Unemployment Assistance, 460 Mass. 24, 25 (2011), quoting from LeBeau v. Commissioner of the Dept. of Employment & Training, 422 Mass. 533, 538 (1996). We are required to construe G. L. c. 151A “liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and [her] family.” G. L. c. 151A, § 74, as appearing in St. 1990, c. 177, § 340. With respect to employees of educational organizations, however, the Legislature has carved out certain exceptions to the general availability of unemployment compensation benefits. As pertinent here, G. L. c. 151A, § 28A(c), as appearing in St. 1977, c. 720, § 29, provides that, with respect to services performed for an educational institution, “benefits shall not be paid to any individual on the basis of such services for any week commencing during an established and customary vacation […]
Categories: News Tags: 1105117, Assistance, Cape, Collaborative, department, Director, Lawyers, Unemployment, Weekly
Howell v. Brockton Division of the District Court Department (Lawyers Weekly No. 10-068-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12217 CURTIS HOWELL vs. BROCKTON DIVISION OF THE DISTRICT COURT DEPARTMENT. Supreme Judicial Court, Superintendence of inferior courts. May 3, 2017. Curtis Howell appeals from a judgment of the county court in which the single justice declined to grant his petition for relief under G. L. c. 211, § 3. His petition and other papers, which are disorganized and difficult to decipher, apparently relate to proceedings to evaluate his competency to stand trial on criminal charges in the District Court. We affirm. The case is before us on Howell’s memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Howell has not carried his burden under the rule. In his memorandum, rather than demonstrating that the District Court judge has made a ruling that cannot be remedied in the ordinary appellate process or by other means, he presses an unsubstantiated claim that he has been subjected to unlawful surveillance since childhood by means of an implanted device. In particular, he does not offer any reason why G. L. c. 123, § 17, which permits any person found incompetent to stand trial to petition the court at any time for a competency hearing, does not afford adequate review of a determination of incompetency. Moreover, we have thoroughly reviewed the papers submitted to the single justice and find no basis to disturb her determination that Howell is not entitled to relief.[1] Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Curtis Howell, pro se. [1] There is some suggestion that Howell may have been represented by counsel in the District Court. He proceeded pro se in the county court. “Absent extraordinary circumstances, a party represented by counsel in pending criminal proceedings is not entitled to challenge interlocutory rulings pro se.” Azubuko v. Commonwealth, 464 Mass. 1014, 1014 (2013), citing Commonwealth v Molino, 411 Mass. 149, 152 (1991). Full-text Opinions
Middlesex Integrative Medicine, Inc. v. Massachusetts Department of Public Health (Lawyers Weekly No. 12-180-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-2727-BLS1 MIDDLESEX INTEGRATIVE MEDICINE, INC. vs. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH MEMORANDUM OF DECISION AND ORDER ON PARTIES’ CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS The plaintiff, Middlesex Integrative Medicine, Inc. (MIM), filed this action in the nature of certiorari under G. L. c. 249, § 4 against the defendant, the Massachusetts Department of Public Health (Department), after the Department denied each of MIM’s three applications to operate Registered Marijuana Dispensaries (RMDs) in Massachusetts. MIM and the Department have each moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). On November 21, 2016, this court held a hearing on the motions. For the reasons stated below, MIM’s motion for judgment on the pleadings is DENIED and the Department’s motion for judgment on the pleadings is ALLOWED. BACKGROUND In November, 2012, Massachusetts voters approved a ballot initiative allowing for the medical use of marijuana for qualifying patients. Thereafter, the Legislature enacted Chapter 369 of the Acts of 2012, known as “An Act for the Humanitarian Medical Use of Marijuana” (Act). St. 2012, c. 369. The Act authorized the Department to register at least one, and up to five, RMDs in each Massachusetts county, up to a total of 35 statewide, during the first year after the law’s effective date (January 1, 2013). G. L. c. 94C, App. § 1-9. Pursuant to the Act, the Department promulgated regulations (105 Code Mass. Regs. § 725.001 et seq.) which established, among other things, a two phase application process. In Phase 1, the applicant paid a non-refundable fee and submitted basic information that was reviewed by the Department. See 105 Code Mass. Regs. § 725.100(B)(1). If the applicant submitted all of the required information in a timely fashion, the applicant was notified that it could proceed to Phase 2. See id. at § 725.100(B)(2). In this phase, the applicant paid a nonrefundable $ 30,000 fee and submitted an application containing much more detailed information about its proposed dispensary, after which the Department evaluated and scored the application. See id. at § 725.100(B)(3)-(5). MIM sought to operate three RMDs – one in Middlesex County (Everett), one in Norfolk County (Norwood), and one in Worcester County (Shrewsbury). In August 2013, MIM filed a a Phase 1 application for each location and, along with other applicants, MIM was invited by the Department to submit Phase 2 applications. On November 21, 2013, MIM paid the Department $ 90,000 and filed three Phase 2 applications. Out of a possible 163 points, MIM received scores of 118, 127, and 118 on its three applications. On January 31, 2014, the Department announced the selection of 20 applicants to receive […]
Categories: News Tags: 1218016, department, health, Inc., Integrative, Lawyers, massachusetts, Medicine, Middlesex, Public, Weekly
P.F. v. Department of Revenue (Lawyers Weekly No. 11-170-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-771 Appeals Court P.F. vs. DEPARTMENT OF REVENUE. No. 15-P-771. Norfolk. May 12, 2016. – December 6, 2016. Present: Cohen, Rubin, & Hanlon, JJ. Divorce and Separation, Child support, Modification of judgment. Parent and Child, Child support. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on February 22, 2004. A complaint for modification, filed on January 9, 2012, was heard by John D. Casey, J. P.F., pro se. Benjamin K. Golden, Assistant Attorney General, for the defendant. COHEN, J. The plaintiff, an incarcerated father, filed a complaint for downward modification of child support payments ordered following his divorce from the child’s mother. A judge of the Probate and Family Court denied the request, reasoning that the father’s loss of income was a foreseeable consequence of his conviction of indecent assault and battery on the child for whom he owes support. Before us is the father’s appeal. We conclude that, on the record before us, the judge’s refusal to reduce the father’s child support payments in accordance with the Massachusetts Child Support Guidelines (2013) (guidelines) was outside the range of his discretion. We therefore vacate the judgment and remand the case for further consideration.[1] Background. The father and the mother were married in September, 2000, and had one child together, a daughter. The marriage was short-lived. The father and the mother divorced in April, 2004, and the father subsequently was ordered to pay weekly child support of $ 72. In March, 2010, the father was convicted of indecent assault and battery on the child and was sentenced to five to seven years in State prison.[2] In 2012, the father filed a complaint seeking modification of his child support obligation, citing his inability to pay child support while incarcerated. On September 9, 2014, following a hearing at which the father represented himself,[3] and at which the child support enforcement division of the Department of Revenue (DOR) appeared on behalf of the mother,[4] a judge of the Probate and Family Court issued a judgment denying the father’s modification request, stating that “[i]t should have been a foreseeable consequence of [the father’s] criminal conduct that he would be incarcerated, lose his employment and thus lose his ability to earn income to pay support.” The intended […]
Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12035 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH & others.[1] Suffolk. September 6, 2016. – November 22, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Privatization Act. Commissioner of Mental Health. Commonwealth, Contracts. Contract, Validity. Public Employment. Laches. Practice, Civil, Judgment on the pleadings. Civil action commenced in the Superior Court Department on February 15, 2012. Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief. LENK, J. This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012. Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55. The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites. In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]
ENGIE Gas & LNG LLC v. Department of Public Utilities (and another case) (Lawyers Weekly No. 10-128-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12051 SJC-12052 ENGIE GAS & LNG LLC[1] vs. DEPARTMENT OF PUBLIC UTILITIES (and another case[2]). Suffolk. May 5, 2016. – August 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[3] Department of Public Utilities. Practice, Civil, Review of order of Department of Public Utilities. Electric Company. Public Utilities, Electric company, Judicial review. Gas. Administrative Law, Judicial review, Rulemaking, Agency’s authority, Rate regulation. Statute, Construction. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on October 26 and November 2, 2015. The cases were reported by Cordy, J. Thaddeus A. Heuer (Adam P. Kahn & Jesse Harlan Alderman with him) for ENGIE Gas & LNG LLC. David K. Ismay for Conservation Law Foundation. Seth Schofield, Assistant Attorney General, for the Attorney General. Thomas H. Hayman, Special Assistant Attorney General (Francis R. Powell, Special Assistant Attorney General, with him) for the Department of Public Utilities. Cheryl M. Kimball & Matthew A. Sanders, for NSTAR Electric Company & others, amici curae, submitted a brief. CORDY, J. These consolidated appeals are before us on a single justice’s reservation and report of challenges made to an order of the Department of Public Utilities (department). Those challenges raise the question of the department’s authority to review and approve ratepayer-backed, long-term contracts entered into by electric distribution companies for additional natural gas pipeline capacity in the Commonwealth pursuant to G. L. c. 164, § 94A, which requires gas and electric companies to receive departmental approval for any contract for the purchase of gas or electricity lasting longer than one year. The plaintiffs, ENGIE Gas & LNG LLC and Conservation Law Foundation, contend that the order amounted to improper rulemaking in violation of the Administrative Procedure Act, G. L. c. 30A. They also argue that the department’s determination that it has authority pursuant to G. L. c. 164, § 94A, to approve such contracts constitutes an error of law because it contravenes G. L. c. 164, § 94A, as amended through St. 1997, c. 164 (restructuring act).[4] We disagree that the order of the department is an improperly promulgated rule or regulation. We nevertheless reach the statutory question presented by the plaintiffs, and conclude that the order is invalid in light of the statutory language and purpose of G. L. c. 164, § 94A, as amended by the restructuring […]
Marchand v. Department of Correction, et al. (Lawyers Weekly No. 10-121-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11949 MARK MARCHAND vs. DEPARTMENT OF CORRECTION & another.[1] August 11, 2016. Correction Officer. Public Employment, Assault pay benefits. On January 21, 2008, while working for the defendant Department of Correction (department), the plaintiff, Mark Marchand, sustained a knee injury when he intervened to protect a fellow employee from an assault by an inmate. As a result of the injury, Marchand began to receive workers’ compensation benefits, pursuant to G. L. c. 152, as well as assault pay, pursuant to G. L. c. 30, § 58. On November 19, 2010, after a hearing, the department’s acting commissioner determined that Marchand was medically unfit for duty and separated him from employment as of that date. Although Marchand continued to receive workers’ compensation benefits until July 4, 2013, the department stopped paying assault pay as of the date of Marchand’s separation from employment.[2] Marchand then commenced this action against the department and the Commonwealth’s Executive Office of Health and Human Services, Division of Human Resources, seeking a declaration that he was entitled to continue receiving assault pay for so long as he was receiving workers’ compensation benefits — that is, until July 4, 2013. A judge in the Superior Court agreed. He allowed Marchand’s cross motion for summary judgment; denied the defendants’ motion; and ordered that judgment enter declaring that Marchand was entitled to assault pay retroactive to November 19, 2010, and continuing through July 4, 2013. The Appeals Court affirmed the judgment, in a memorandum and order issued pursuant to its rule 1:28. See Marchand v. Department of Correction, 87 Mass. App. Ct. 1127 (2015). We allowed the defendants’ application for further appellate review. The single question before us is whether a Commonwealth employee entitled to receive assault pay pursuant to G. L. c. 30, § 58, fourth par., is entitled to continue receiving such pay even after he separates from employment so long as he is entitled to workers’ compensation benefits pursuant to G. L. c. 152, or whether his right to assault pay ceases with his separation from employment. The Appeals Court has previously interpreted the relevant provisions of G. L. c. 30, § 58, to mean the former. See Moog v. Commonwealth, 42 Mass. App. Ct. 925, 927 (1997). We conclude, however, that the latter is the better interpretation — in short, that assault pay is contingent on continued employment. […]
Categories: News Tags: 1012116, Correction, department, Lawyers, Marchand, Weekly
Murray, et al. v. Department of Conservation and Recreation (Lawyers Weekly No. 10-115-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12002 ELAINE K. MURRAY & another[1] vs. DEPARTMENT OF CONSERVATION AND RECREATION. Suffolk. April 5, 2016. – August 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Land Court, Jurisdiction. Jurisdiction, Land Court. Railroad. Easement. Real Property, Easement. Civil action commenced in the Land Court Department on September 19, 2011. The case was heard by Gordon H. Piper, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David A. Murray (Peter M. Schilling with him) for the plaintiffs. Frances S. Cohen, Assistant Attorney General, for the defendant. SPINA, J. The plaintiffs appeal from a judgment of the Land Court dismissing without prejudice their action to quiet title under G. L. c. 240, §§ 6-10, for lack of subject matter jurisdiction.[3] The thrust of their action is that a railroad easement formerly owned by the Pennsylvania Central Transportation Co. (Penn Central) across portions of their lands was abandoned when the United States Railway Association (USRA), acting pursuant to the Regional Rail Reorganization Act of 1973, devised a final system plan which designated certain profitable rail lines that were to be transferred from eight bankrupt regional rail carriers in the northeast and the midwest regions of the country to the Consolidated Rail Corporation (Conrail), but not the rail line over the easement that encumbered their lands. The plaintiffs contended that the railroad easement over their lands was abandoned by virtue of its nondesignation for transfer to Conrail in the final system plan. The judge in the Land Court disagreed and concluded that a certificate of abandonment from the Federal Surface Transportation Board (STB) was necessary before a State court could exercise jurisdiction to determine State law claims regarding easements, and that STB’s jurisdiction was both exclusive and primary. The plaintiffs appealed, and we transferred the case to this court on our own motion. We affirm the judgment of the Land Court. Facts. The following facts are undisputed. Boston and Worcester Railroad (B&W) was created in 1831. In 1847 it filed a “Plan of Location of the Newton Railroad” with the Middlesex County commissioners. The easement over the plaintiffs’ properties appears as part of the proposed railroad line depicted on the […]
Categories: News Tags: 1011516, Conservation, department, Lawyers, Murray, Recreation, Weekly
New England Survey Systems, Inc. v. Department of Industrial Accidents (Lawyers Weekly No. 11-076-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-331 Appeals Court NEW ENGLAND SURVEY SYSTEMS, INC. vs. DEPARTMENT OF INDUSTRIAL ACCIDENTS. No. 15-P-331. Suffolk. December 8, 2015. – June 30, 2016. Present: Grainger, Hanlon, & Agnes, JJ. Workers’ Compensation Act, Failure to obtain insurance, Cancellation of insurance. Department of Industrial Accidents. Statute, Construction. Due Process of Law, Administrative hearing. Administrative Law, Judicial review. Civil action commenced in the Superior Court Department on April 26, 2013. The case was heard by Frances A. McIntyre, J., on a motion for judgment on the pleadings. Timothy K. Cutler for the plaintiff. Douglas S. Martland, Assistant Attorney General, for Department of Industrial Accidents. AGNES, J. The Workers’ Compensation Act, G. L. c. 152 (act), provides that whenever the Commissioner of the Department of Industrial Accidents (the department) determines that an employer has not provided the insurance required by law,[1] “a stop work order shall be served on said employer, requiring the cessation of all business operations at the place of employment or job site.” G. L. c. 152, § 25C(1), as amended through St. 1989, c. 341, § 82. The stop work order takes effect upon service on the employer, and remains in effect until the employer satisfies the commissioner that it has obtained the required insurance and paid the $ 100 per day civil penalty for each day it was in violation of the law, beginning with the date of service of the order. § 25C(1) of the act. Section 25C also provides for additional civil and criminal penalties against employers who do not obtain the insurance required by law. See G. L. c. 152, § 25C(5)-(6), (9)-(11). Subsection (10) of § 25C sets forth one of the additional civil penalties that an employer who fails to obtain the insurance required by the act may face. It reads as follows: “(10) In addition to being subject to the civil penalties herein provided, an employer who fails to provide for insurance or self insurance as required by this chapter or knowingly misclassifies employees, to avoid higher premium rates, will be immediately debarred from bidding or participating in any state or municipal funded contracts for a period of three years and shall when applicable be subject to penalties provided for in section fourteen” (emphasis supplied).[2] The issue before us, which is one of first impression, is […]
Peterborough Oil Company, LLC v. Department of Environmental Protection (Lawyers Weekly No. 10-076-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11851 PETERBOROUGH OIL COMPANY, LLC vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester. October 8, 2015. – June 6, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Hazardous Materials. Oil and Gas. Department of Environmental Protection. Statute, Construction. Administrative Law, Agency’s interpretation of regulation. Regulation. Massachusetts Oil and Hazardous Material Release Prevention Act. Civil action commenced in the Superior Court Department on August 27, 2013. The case was heard by William F. Sullivan, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Robert D. Cox, Jr., for the plaintiff. Eric S. Brainsky for Independent Oil Marketers Association of New England. Maryanne Reynolds, Assistant Attorney General, for the defendant. Edward J. DeWitt, for Association to Preserve Cape Cod, amicus curiae, submitted a brief. Donald D. Cooper, for LSP Association, Inc., amicus curiae, submitted a brief. DUFFLY, J. After a spill of hazardous materials within a specified radius of a public water supply, Department of Environmental Protection (DEP) regulations require that those deemed to be liable undertake cleanup and monitoring actions to ensure the spill does not pose a danger to that water supply. See 310 Code Mass. Regs. §§ 40.0801, 40.0810, 40.0993(3)(a) (2014); 40.1030(2)(e) (2015). An exemption promulgated in 2007, however, exempts “oil” from some of these requirements when other enumerated requirements are met. See 310 Code Mass. Regs. § 40.0924(2)(b)(3)(a) (2014) (oil exemption). The DEP’s definition of the term “oil” in this “oil exemption” is at the heart of this lengthy litigation between DEP and Peterborough Oil Company, LLC (Peterborough). Peterborough owns a property, now vacant, in Athol, where it operated a gasoline station for more than ten years.[1] The property is located within a protection area for public water supply wells. In 1994, a release of leaded gasoline that originated from a subterranean gasoline storage tank was detected in soil on the site. Since then, DEP has required Peterborough to undertake supervised cleanup and monitoring activities at the site. In 2008, shortly after the oil exemption was established, Peterborough submitted a revised remediation plan to DEP, stating that further remediation was not required because the entirety of the leaded gasoline spilled falls within the definition of “oil” for purposes of the exemption. In 2011, DEP audited the site and […]
Categories: News Tags: 1007616, Company, department, Environmental, Lawyers, Peterborough, Protection, Weekly