Executive Office of Energy & Environmental Affairs

COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 02108 617-292-5500

THE OFFICE OF APPEALS AND DISPUTE RESOLUTION

August 21, 2013

______

In the Matter of OADR Docket Nos. 2004-086 & 087 Richard J. Kelly, individually and DALA Docket Nos. DEP-04-518 & 04-519 D/B/A R.J. Kelly Company DEP File Nos. UAO-NE-04-3C001 and PAN-NE-04-3C001 Burlington, MA

______

RECOMMENDED FINAL DECISION

These two consolidated appeals involve challenges to two enforcement orders that the

Northeast Regional Office of the Massachusetts Department of Environmental Protection (“Mass

DEP” or “the Department”) issued in May 2004 to the Petitioner Richard J. Kelly, individually and D/B/A R.J. Kelly Company for his purported violations of the Massachusetts Oil and

Hazardous Material Release Prevention and Response Act, G.L. c. 21E (“Chapter 21E”), and the

Massachusetts Contingency Plan (“MCP”) at 310 CMR 40.000, arising from his ownership of the real property at 116 Cambridge Street in Burlington, Massachusetts (“the Site”). The enforcement orders were: (1) a Unilateral Administrative Order (“UAO”) that required the

Petitioner to take certain actions to correct his purported Chapter 21E and MCP violations, and In the Matter of Richard J. Kelly, individually and D/B/A R.J. Kelly Company, OADR Docket Nos. 2004-086 & 087 Recommended Final Decision Page 1 of 4 (2) a Penalty Assessment Notice (“PAN” or “Civil Administrative Penalty”) that required the

Petitioner to pay a penalty of $119,000.00 to the Commonwealth for his purported violations.

As was the practice at the time, in 2004, the Division of Administrative Law Appeals

(“DALA”), an agency within the Massachusetts Executive Office of Administration and Finance

(“EOAF”), assumed jurisdiction over these three appeals so that a DALA Administrative

Magistrate could conduct an Adjudicatory Hearing and issue a Recommended Final Decision

(“RFD”) for review by the Department’s Commissioner. Under 310 CMR 1.01(14)(b), the

Department’s Commissioner is the Final Decision-maker in all administrative appeals such as the appeals here, and may issue a Final Decision adopting, modifying, or rejecting a DALA

Administrative Magistrate’s RFD. Ten Local Citizen Group v. New England Wind, LLC, 457

Mass. 222, 231 (2010).

The appeals remained pending at DALA until recently when the Petitioner and the Depart ment reached a proposed settlement of both appeals through a Settlement Agreement and

Administrative Consent Order With Penalty and Notice of Non-Compliance (“ACOP”). The

ACOP requires the Petitioner to perform a number of actions within specific timelines pursuant to Chapter 21E and the MCP, and pay the Commonwealth $5,200.00 in costs and a $40,000.00 penalty for the Petitioner’s purported Chapter 21E and MCP violations. ACOP, ¶¶ 10a-10f, 15,

16A-16B. Under the ACOP, the Petitioner is to pay 50% of the penalty ($20,000.00) within 30 days after the ACOP’s approval and the balance of the penalty ($20,000.00) is suspended provided that the Petitioner does not violate any provision of the ACOP and commit any violations of Chapter 21E and the MCP. Id., ¶¶ 16A-16B. If the Petitioner violates any provision of the ACOP or violates Chapter 21E and the MCP, the Petitioner is to pay the balance

In the Matter of Richard J. Kelly, individually and D/B/A R.J. Kelly Company, OADR Docket Nos. 2004-086 & 087 Recommended Final Decision Page 2 of 4 of the penalty within 30 days after the Department issues the Petitioner a written demand for payment. Id., ¶ 16B. The Petitioner will also be liable for additional stipulated civil administrative penalties of $1,000.00 per day for each day any violations continue. Id., ¶¶ 26-29.

The proposed settlement is fair and reasonable, is in the public interest, furthers the statutory and regulatory interests of the Chapter 21E and the MCP, and brings to an end nearly ten years of litigation. Accordingly, I recommend that the Department’s Commissioner issue a

Final Decision approving the ACOP.

Date: ______Salvatore M. Giorlandino Chief Presiding Officer

In the Matter of Richard J. Kelly, individually and D/B/A R.J. Kelly Company, OADR Docket Nos. 2004-086 & 087 Recommended Final Decision Page 3 of 4 SERVICE LIST

In the Matter of OADR Docket Nos. 2004-086 & 087 Richard J. Kelly, individually and DALA Docket Nos. DEP-04-518 & 04-519 D/B/A R.J. Kelly Company DEP File Nos. UAO-NE-04-3C001 and PAN-NE-04-3C001 Burlington, MA

Representative Party

Roy P. Giarrusso, Esq. Richard J. Kelly, individually and D/B/A Curt Connors, Esq. R.J. Kelly Company Giarrusso, Norton, Cooley, & McGlone, P.C. Marina Bay 308 Victory Road Quincy, MA 02171 e-mail: [email protected] [email protected]

MacDara K. Fallon, Esq. Dept. of Environmental Protection Senior Counsel MassDEP/Office of General Counsel One Winter Street Boston. MA 02108 e-mail: [email protected]

In the Matter of Richard J. Kelly, individually and D/B/A R.J. Kelly Company, OADR Docket Nos. 2004-086 & 087 Recommended Final Decision Page 4 of 4