Wassenar v. Department of Environmental Protection (Lawyers Weekly No. 11-022-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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         12‑P‑1671                                       Appeals Court   HAROLD B. WASSENAR  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION. No. 12‑P‑1671. Worcester.     September 17, 2013.  ‑  March 5, 2014. Present:  Hanlon, Brown, & Sullivan, JJ.   Department of Environmental Protection.  Penalty.  Escrow.  Practice, Civil, Dismissal of appeal, Waiver.  Waiver.       Civil action commenced in the Superior Court Department on January 20, 2011.   A motion to dismiss was heard by Richard T. Tucker, J.     Henry J. Lane for the plaintiff. Maryanne Reynolds, Assistant Attorney General, for the defendant.       HANLON, J.  The Department of Environmental Protection (DEP) issued a final decision against Harold B. Wassenar, requiring him to pay a civil administrative penalty of $ 80,586.  Wassenar sought judicial review in the Superior Court under G. L. c. 30A, § 14.  As a condition precedent to that court’s jurisdiction to review the administrative proceeding, Wassenar was required to post the full amount of the assessed penalty in an escrow account, unless he was able to demonstrate either an inability to pay the assessment or the presence of a substantial question of law.  See G. L. c. 21A, § 16, inserted by St. 1985, c. 95, § 1.  After a hearing, a judge of the Superior Court determined that Wassenar had satisfied neither condition.  When Wassenar did not place the assessment amount in an escrow account, a second judge dismissed his complaint.  Wassenar now appeals, arguing that the motion judge erred both in the determination of his ability to pay, and in the determination that there was no substantial issue of law.  We affirm. Background.  On November 6, 2007, the DEP assessed Wassenar an $ 80,586 civil administrative penalty for violations involving hazardous and solid waste storage on property he owned at 290 Millville Road in Uxbridge.  Wassenar, contesting the penalty, submitted to the DEP an affidavit, arguing that the stored items were “consistent with the use of [his] premises as a home” and, in any event, were being stored there only temporarily.  John Kronopolus, a DEP engineer, submitted a rebuttal affidavit challenging most of the assertions made in Wassenar’s affidavit.  After an adjudicatory appeal hearing, the DEP issued a final penalty order; the order was affirmed after reconsideration. Wassenar then filed a complaint in the Superior Court pursuant to G. L. c. 30A, § 14, seeking judicial review of the DEP’s final order, claiming that the order was arbitrary […]

Read more...