Top Massachusetts Court Clarifies Massachusetts Department of Environmental Protection's (MassDEP) Authority to Assess a Penalty Without First Issuing a Notice of Violation
Thursday, October 17, 2013

The Massachusetts Supreme Judicial Court ruled that a “willful” violation enforceable by the Massachusetts Department of Environmental Protection (MassDEP) requires that the person “knew or, due to his experience or expertise, should have known the operative facts that made his actions a violation of the law.” Willful violations “not the result of error” do not require a Notice of Violation and an opportunity to cure before an administrative penalty can be assessed by MassDEP. The SJC’s decision in Franklin Office Park Realty Corp. v. Commission of Dep’t of Envt’l Protection, 466 Mass. 454 (2013) rejected interpretations proposed by both MassDEP and the entity against whom the penalty had been assessed.

The underlying violation alleged by MassDEP was the failure to handle asbestos containing roof shingles consistent with law. Franklin Office Park Realty Corp. (Franklin) discovered a leak in the roof of a three-family home that it owned. Franklin asked an employee of a related company to hire a roofing company to undertake repairs. This employee hired and supervised the roofing company. The roofing company removed shingles from the roof and apparently sent them as construction and demolition debris to a recycling company. The recycling company suspected the shingles may contain asbestos and returned them. In an inspection of the site by MassDEP, MassDEP found shingles containing friable asbestos in an unsealed container. MassDEP determined that Franklin had failed to meet the requirements of environmental regulations because it did not notify MassDEP of the project involving asbestos containing materials, failed to properly seal and label the container, and contracted to dispose of the material with a company not authorized to do so. MassDEP assessed a penalty of $18,225 without issuing a Notice of Violation with an opportunity to cure.

Before the SJC, MassDEP defended its assessment of a penalty without first issuing a Notice of Violation on the basis that the violations were intentional acts, and therefore willful, regardless of whether Franklin knew the operative facts (i.e., that the shingles contained asbestos) that made the conduct illegal. Franklin argued that an action is only willful if the person knew the act was illegal at the time the act occurred. The Court disagreed with both interpretations and held that an act is willful under this statutory provision only when the person “knew or, due to his experience or expertise, should have known the operative facts that made his actions a violation of the law.” Therefore, the Court determined that the judgment of the Superior Court should be vacated and the matter remanded to Superior Court. However, because the hearing officer had found based on substantial evidence that Franklin, through its agents, knew or should have known that the shingles could contain asbestos, the Court determined that this standard had been met and the penalty assessed by MassDEP should stand.

 

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