Opinion
11-P-1342
04-27-2012
BLACKINTON COMMONS LLC v. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Blackinton Commons LLC (Blackinton) appeals from a judgment dismissing its complaint for judicial review for failure to place in escrow the full amount of a civil penalty assessed against it by the Department of Environmental Protection (DEP). See G. L. c. 21A, § 16. Blackinton also appeals the order denying its motion to vacate the judgment. We find no error and affirm.
Background. We recite the facts as the presiding officer could have found them. In order to promote the cleanup of environmental damage, Massachusetts law exempts persons succeeding to the ownership of polluted property from certain enumerated liability if the owner assesses and remediates the contamination. See G. L. c. 21E, §§ 1-21; 310 Code Mass. Regs. §§ 40.0001- 40.1600. This cleanup must be overseen by a licensed hazardous waste site cleanup professional (LSP). Once the cleanup has been completed, the owner must show that the site no longer poses a significant risk to human health and the environment by obtaining a response action outcome statement (RAO). See 310 Code Mass. Regs. § 40.0006 (1995). The RAO must be generated by an LSP. See ibid.
The owner must not have been the owner or operator at the time the pollution occurred. G. L. c. 21E, § 5(c).
Blackinton purchased a parcel of land that previously had been used for jewelry production. The jewelry maker's process was not a model of environmental stewardship. Consequently, for many decades the property's soil and groundwater were extensively polluted with arsenic, lead, nickel, mercury, and cyanide. Blackinton purported to assess and remediate the contaminants, submitted an RAO, and then built and sold condominiums on the property. The DEP subsequently discovered that the pollution had not been remediated, and took enforcement action against Blackinton by fining the company, invalidating its RAO, and ordering it to comply with G. L. c. 21E and pertinent environmental regulations.
Blackinton appealed the enforcement actions through the proper administrative adjudicative process. The DEP commissioner affirmed the DEP's actions. Blackinton then sought judicial review by way of G. L. c. 30A, § 14.
Subsequently, because Blackinton failed to place the penalty amount in escrow as prescribed by G. L. c. 21A, § 16, the DEP filed a Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), motion to dismiss, which was allowed. Blackinton filed a petition for interlocutory review, which was denied by a single justice of this court. Finally, Blackinton filed a Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), motion to vacate the judgment, which also was denied. This appeal timely followed.
Discussion. A party seeking judicial review of decisions assessing penalties for environmental law violations must place the full amount of the penalty 'in an interest-bearing account in the custody . . . of the reviewing court.' G. L. c. 21A, § 16, inserted by St. 1985, c. 95, § 1. This requirement may be waived if 'the party seeking judicial review demonstrates in a preliminary hearing . . . either the presence of a substantial question for review by the court or an inability to pay.' Ibid. Blackinton sought to establish that it merited relief from the escrow requirement under both conditions.
Inability to pay. In support of its assertion of inability to pay, Blackinton submitted two almost identical conclusory affidavits alleging a lack of funds due to the cost of the cleanup. In order to be able either to verify or to refute this claim, the DEP sought discovery of financial data from Blackinton, which it refused to provide. The DEP thereupon submitted an affidavit from an investigator in the Attorney General's office. The investigator's affidavit, using information garnered from public records, detailed Blackinton's receipt of $11,177,866 from the sale of the condominiums, and further demonstrated that Blackinton transferred one unit to itself for nominal consideration through another company as a conduit. A prior judge did not credit Blackinton's affidavits and concluded that Blackinton had not demonstrated an inability to pay. On this record there was no error in the prior judge's determination.
Relatedly, Blackinton also claims that the prior judge was not permitted to order discovery to determine if Blackinton was unable to pay. This argument relies on the assumption that because a statute, here G. L. 21A, § 16, does not mention something, it is forbidden. In general, '[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved.' Mass.R.Civ.P. 26(b), 365 Mass. 772 (1974). Even without considering the appearance of evasion created by Blackinton, the judge did not abuse her discretion in ordering discovery.
Substantial question. The prior judge, who first requested the parties to brief the legal standard for demonstrating a substantial question, thereafter also ruled that Blackinton had not demonstrated a substantial question. G. L. c. 21A, § 16.
We review a court's interpretation of a statute de novo. See Connors v. Annino, 460 Mass. 790, 793 (2011). The statute in question, G. L. c. 21A, § 16, requires parties to demonstrate a 'substantial question for review by the court' in order to waive or extend the escrow requirement. Neither the statute nor interpretive decisional law defines 'substantial question.' The prior judge did not adopt Blackinton's proposed standard whereby any question that is 'non-frivolous' qualifies as 'substantial,' ruling instead that the issue 'at the very least, [must be] a 'close' question, one that raises a substantive issue worthy of appeal.' We agree.
The text of a statute is to be given its plain and ordinary meaning when it is unambiguous. See Bronstein v. Prudential Ins. Co. of America, 390 Mass. 701, 704 (1984). We see no ambiguity in the language of the statute. Substantial is commonly defined, almost tautologically, as 'having strong substance.' Webster's New Universal Unabridged Dictionary 1817 (2d ed. 1983). See Sisson v. Lhowe, 460 Mass. 705, 709 (2011) ('[W]e look to the ordinary meaning of the term . . . as employed in the statute, as understood from its dictionary definition'). 'Frivolous,' by contrast, means an 'absence of legal or factual basis for the claim,' Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259, 267 (2007). In sum, while a nonfrivolous claim need demonstrate no more than a legal and factual basis, to be substantial a question must have a materially more significant foundation and provide a stronger argumentative force; the two are not synonymous. Had the Legislature so intended, it could have included a frivolity standard as it did in other statutes. See, e.g., G. L. c. 211, § 10; G. L. c. 231, § 6F; G. L. c. 258, § 11.
Even were we to agree with Blackinton that the so-called 'gatekeeper' language of G. L. c. 278, §33E, equates the standard of substantial with nonfrivolous, we decline to import an approach intended to ensure comprehensive review in cases of murder in the first degree, to the escrow requirement under consideration here.
Having applied the correct standard, the prior judge committed no error in finding that Blackinton had failed to meet that standard and had not, in fact, presented a substantial question for review. Blackinton's argument, that which it characterizes as raising a substantial question, may be summarized as an assertion that the DEP lacks the authority to invalidate an RAO, quite regardless of the deficiencies it may contain.
As the single justice of this court noted, the statutory scheme governing environmental cleanup grants broad powers to the DEP to carry out its mission. The DEP 'has final administrative authority and discretion to determine . . . whether a response action, application, Opinion or other submittal is in compliance with M.G.L. c. 21E, 310 CMR 40.0000 and other applicable requirements.' 310 Code Mass. Regs. § 40.0100(1)(e) (2007). Furthermore, the DEP 'shall establish standards, procedures and deadlines, all of which shall be established in such terms that they can be legally enforced . . . to ensure that response actions are taken in compliance with this chapter and the Massachusetts Contingency Plan as expeditiously as practicable.' G. L. c. 21E, § 3A(d), as appearing in St. 1992, c. 133, § 282. Additionally, 'Nothing in this section shall be construed to limit the authority of the [DEP] under this chapter or any other provision of the General Laws to take actions to protect public health, safety, welfare or the environment.' G. L. c. 21E, § 3A(n), inserted by St. 1986, c. 554, § 2. These are not the words of stringent limitation that Blackinton seeks to paint, and, as stated, the prior judge did not commit error in ruling that Blackinton did not raise a 'substantial question.'
On appeal Blackinton also has argued that the DEP's invalidation of the RAO was subject to separate review, despite the fact that the prior judge did not waive the escrow requirement, because G. L. c. 21A, § 16, mandates an escrow only where a party is challenging a 'civil administrative penalty.' Blackinton raised this argument for the first time in its rule 59(e) motion to vacate the judgment. Parties may not raise arguments that could have been made prior to judgment for the first time in a rule 59(e) motion. See O'Malley v. O'Malley, 419 Mass. 377, 381 (1995) (challenge to judge's order came too late when raised for first time in motion to amend or to vacate). See also Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997) (interpreting substantially similar Fed.R.Civ.P. 59[e]; 'Rule 59[e] . . . certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment'), quoting from Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Accordingly the issue is not properly before us.
Judgment affirmed.
Order denying motion to vacate judgment affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),