James J. Decoulos v. Board of Registration of Hazardous Waste Site Cleanup Professionals.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-663

JAMES J. DECOULOS

vs.

BOARD OF REGISTRATION OF HAZARDOUS WASTE SITE CLEANUP
PROFESSIONALS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, James J. Decoulos, appeals from a Superior

Court judgment affirming the decision of the Board of

Registration of Hazardous Waste Site Cleanup Professionals

(board) to suspend Decoulos's licensed site professional (LSP)

license for one year. 1 After investigation and a hearing before

a presiding officer from the Office of Appeals and Dispute

Resolution (OADR), the board determined that Decoulos had

violated the rules of professional conduct for LSPs, 309 Code

1The Commissioner of the Massachusetts Department of
Environmental Protection was also named as a defendant in this
action, but the claims against him were dismissed by a Superior
Court judge and Decoulos does not challenge that decision on
appeal.
Mass. Regs. §§ 4.00 (1999), and ordered that Decoulos's license

be suspended for one year and that he complete additional

continuing education credit. On appeal, Decoulos contends that

(1) the board's decision was arbitrary and capricious and (2)

his constitutional rights were violated during the disciplinary

proceedings against him. We affirm.

Background. 2 LSPs are "hazardous waste site cleanup

professionals" authorized to oversee assessment and remediation

of hazardous waste under G. L. c. 21E. G. L. c. 21A, § 19C.

The board licenses and regulates LSPs under G. L. c. 21A, § 19C.

The Massachusetts Department of Environmental Protection

(MassDEP) oversees site cleanups under G. L. c. 21E, and the

implementing regulations known as the Massachusetts Contingency

Plan (MCP), 310 Code Mass. Regs. §§ 40.0000 (2014). The

discipline imposed by the board arose from Decoulos's actions at

two hazardous waste cleanup sites.

1. Site A: Eagle gas station, 131 Main Street, Carver.

On January 21, 2003, Eagle gas station (Eagle) hired Decoulos as

2 We recount the facts primarily as found in the board's
final findings of fact and rulings of law, and the presiding
officer's recommended decision, See Olde Towne Liquor Store,
Inc. v. Alcoholic Beverages Control Comm'n, 372 Mass. 152, 154
(1977) ("It is not for this court to substitute its judgment on
questions of fact for that of the agency"). On appeal, Decoulos
does not challenge the board's factual findings.

2
the LSP to address a light nonaqueous phase liquid (LNAPL) 3

release on the property, Site A. Decoulos submitted his first

proposal to the MassDEP to address the contamination on January

27, 2003. On May 16, 2003, Decoulos discovered a sheen

indicating diesel contamination on South Meadow Brook where it

passes under Main Street and notified the MassDEP.

From March 2003 to May 2005, Decoulos and the MassDEP

exchanged proposals on how to address the contamination and

determine its source. The MassDEP repeatedly approved proposals

for an active LNAPL recovery system, but Decoulos only used a

passive LNAPL recovery system and proposed further passive

methods. Decoulos claimed that the contamination came from

stormwater surface runoff but did not address the MassDEP's

requests for further information to support this claim. The

MassDEP denied several systems proposed by Decoulos to treat the

brook contamination because it found Decoulos did not provide

sufficient information to support his proposals and failed to

investigate the possibility of a subsurface diesel leak from the

gas station. It was not until May 2005 that Decoulos first

acknowledged the possibility of subsurface contamination. After

3 Light nonaqueous phase liquid is defined as "oil and/or
hazardous material that is present in the environment as a
separate phase liquid" and is lighter than water. 310 Code
Mass. Regs. § 40.0006.

3
Decoulos submitted an update to the MassDEP in July 2005, Eagle

hired a different LSP.

2. Site B: Speedy Lube, 633 North Main Street, Randolph.

In 1998, a prior LSP reported gasoline contamination at Site B,

which had been a gas station and auto repair shop since 1935.

In or around May 2002, the site owner, Speedy Lube, retained

Decoulos as the LSP to respond to the contamination. After

assessing the contamination on June 4, 2002, by using two rounds

of groundwater sampling, Decoulos filed a response action

outcome (RAO) statement, indicating that the site had achieved a

level of no significant risk. The MassDEP issued a notice of

noncompliance on November 6, 2003, stating that Decoulos's RAO

was not valid. The MassDEP determined that Decoulos incorrectly

applied the MCP and the MassDEP guidelines by using improper

calculations and incorrectly applying MCP risk assessment

practices. The incorrect calculations resulted in Decoulos's

incorrect determination that there was "no significant risk" at

the site, despite data showing increasing levels of

contamination.

3. Procedural history. On December 15, 2005, the board

received a complaint regarding Decoulos's work at Site A; a

complaint response team reviewed Decoulos's audit history and

uncovered potential violations at Site B. As a result of the

investigation into both sites, the complaint response team

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recommended a one-year suspension of Decoulos's LSP license. In

a January 8, 2010, order to show cause, the board alleged that

Decoulos failed to act with reasonable care and diligence in

violation of LSP professional competency standards, 309 Code

Mass. Regs. § 4.02(1), and that he failed to meet the

requirements of the MCP in violation of the LSP rules of

professional responsibility, 309 Code Mass. Regs. § 4.03(3)(b).

Decoulos filed an answer to the show cause order and requested

an adjudicatory hearing. The board delegated the hearing to a

presiding officer from the OADR. On September 7, 2012, after

conducting an administrative hearing with the presentation of

witnesses and evidence, the presiding officer issued a

recommended decision finding that the board had proved

Decoulos's violations by an "overwhelming preponderance of the

evidence." The board voted to affirm and adopt the presiding

officer's recommended decision on March 20, 2014. After

Decoulos and the board attempted unsuccessfully to reach a

settlement, the board issued final findings of fact and rulings

of law, concluding that Decoulos had violated the LSP rules of

professional conduct. The prosecuting attorney recommended

discipline of a one-year license suspension and continuing

education hours. Decoulos filed his opposition to the board's

ruling and, on January 16, 2019, after hearing oral argument,

5
the board issued a final order imposing the disciplinary

sanctions as recommended by the prosecuting attorney.

Decoulos appealed from the final order by filing a

complaint in the Superior Court under G. L. c. 30A, § 14,

arguing, inter alia, that his constitutional rights had been

violated, the board exceeded its statutory authorization, there

were clear errors of law, the board's findings were unsupported

by substantial evidence, and the board's and presiding officer's

actions were arbitrary and capricious. Decoulos filed a motion

for judgment on the pleadings, and the board filed a cross

motion. Noting the "limited and highly deferential standard of

review," the Superior Court judge ordered judgment for the

board. This appeal followed.

Discussion. 1. Standard of review. "We review de novo a

judge's order allowing a motion for judgment on the pleadings

under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974)." Merriam

v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013), citing

Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass.

594, 600 (2010). In reviewing a Superior Court judge's ruling

under G. L. c. 30A, § 14, an appellate court "conduct[s] an

analysis of the same agency record, and there is no reason why

the view of the Superior Court should be given any special

weight." Southern Worcester County Regional Vocational Sch.

Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903 (1979). We

6
review the entirety of an administrative record. G. L. c. 30A,

§ 14 (7). See Chief Justice for Admin. & Mgt. of the Trial

Court v. Commonwealth Employee Relations Bd., 79 Mass. App. Ct.

374, 380 (2011).

This court may set aside an agency decision "if it

determines that the substantial rights of any party may have

been prejudiced because the agency decision is . . . [i]n

violation of constitutional provisions; or . . . [a]rbitrary or

capricious, an abuse of discretion, or otherwise not in

accordance with law." G. L. c. 30A, § 14 (7). This standard of

review is highly deferential. Friends & Fishers of the

Edgartown Great Pond, Inc. v. Department of Envtl. Protection,

446 Mass. 830, 836 (2006). We give "due weight to the

experience, technical competence, and specialized knowledge of

the agency, as well as to the discretionary authority conferred

upon it." Flint v. Commissioner of Pub. Welfare, 412 Mass. 416,

420 (1992), quoting G. L. c. 30A, § 14 (7). We also afford

deference to the agency's determinations on issues of

credibility and the weight of the evidence, School Comm. of

Wellesley v. Labor Relations Comm'n, 376 Mass. 112, 120 (1978),

and the inferences drawn therefrom. School Comm. of Brookline

v. Bureau of Special Educ. Appeals, 389 Mass. 705, 716 (1983).

See G. L. c. 30A, § 14.

7
2. Arbitrary and capricious. 4 During the administrative

proceedings against Decoulos, the board and presiding officer

made decisions that Decoulos now challenges as arbitrary and

capricious under G. L. c. 30A, § 14 (7). We cannot say that the

board's decisions "lack[] any rational explanation that

reasonable persons might support" (citation omitted), Frawley v.

Police Comm'r of Cambridge, 473 Mass. 716, 729 (2016), or that

the decisions were "legally erroneous or so devoid of factual

support as to be arbitrary and capricious." MacLaurin v.

Holyoke, 475 Mass. 231, 238 (2016).

First, it was not arbitrary and capricious for the

presiding officer to deny Decoulos's requests to subpoena

additional witnesses. The presiding officer properly applied

the governing regulations, 309 Code Mass. Regs. § 7.08 (2004).

Decoulos did not file written direct testimony as required by

the regulation, nor did he show good cause to present the

witness testimony by oral examination. 309 Code Mass. Regs.

4 The board contends that Decoulos waived these arguments as
to why the board's decision is arbitrary and capricious because
he did not raise them before the Superior Court. He did,
however, make substantially the same points in the Superior
Court in arguing that the board's findings were not supported by
substantial evidence. Because "some leniency is appropriate in
determining whether pro se litigants have complied with rules of
procedure," Brown v. Chicopee Fire Fighters Ass'n, Local 1710,
IAFF, 408 Mass. 1003, 1004 n.4 (1990), we will address the
substance of his arguments notwithstanding the label he applied
to them.

8
§ 7.08 ("Good cause in this context includes . . . persuasive

evidence that the witness is an adverse witness, hostile, or

otherwise unwilling to prepare . . . direct testimony in

writing"). In addition, the presiding officer reasonably found

that Decoulos failed to show that "the desired testimony is

necessary and relevant and not duplicative of other witnesses'

testimony." Under G. L. c. 30A, § 11 (2), the presiding officer

may "exclude unduly repetitious evidence," and under 801 Code

Mass. Regs. § 1.01(8)(a) (1998), the presiding officer had

discretion to make orders "which justice requires" -- including

limitations on the scope of discovery. The denial of Decoulos's

request to subpoena witnesses was a rational application of the

governing regulations and an appropriate exercise of discretion. 5

Second, the board was not arbitrary and capricious in its

objection to Decoulos's demands for documents from the MassDEP;

neither was the presiding officer in his refusal to compel

discovery. Decoulos requested that the board produce MassDEP

documents such as e-mail messages between the MassDEP employees,

5 We need not address Decoulos's contention that the denial
of his requested subpoenas to four witnesses violated his rights
under article 12 of the Massachusetts Declaration of Rights
because this right, secured to criminal defendants, is not
applicable to civil proceedings. See Covell v. Department of
Social Servs., 439 Mass. 766, 788 (2003); Adoption of Don, 435
Mass. 158, 168 (2001); Reading v. Murray, 405 Mass. 415, 418
(1989).

9
and the board objected. The presiding officer denied Decoulos's

request pertaining to those "documents and things that are

solely within the possession, custody, or control of [the]

MassDEP and not the [b]oard." Section 1.01(8)(b) of title 801

of the Massachusetts Code of Regulations provides that a party

may request documents "which are in the possession, custody, or

control of the . . . [a]gency requested to provide them." The

presiding officer agreed with the board's statement that the

MassDEP and the board are separate agencies with separate

functions and responsibilities. See G. L. c. 21A, §§ 7

(establishing MassDEP) and 19A (establishing the board). 6 It was

not legal error for the presiding officer to apply the discovery

rules and recognize that the board is a separate agency from the

MassDEP and could not be compelled to produce MassDEP documents.

Decoulos's challenge to the delay in proceedings 7 also

fails. Regardless of whether the delay in these proceedings was

6 For similar reasons, the MassDEP was not a necessary and
indispensable party. The board and the MassDEP are separate
agencies, and the board has no jurisdiction or control over the
MassDEP. Complete relief may be awarded without the MassDEP,
and the MassDEP does not claim an interest in the action or seek
to intervene. See Mass. R. Civ. P. 19, 365 Mass. 765 (1974),
and 801 Code Mass. Regs. § 1.01(9)(d) (permissive intervention
for nonparties "likely to be substantially and specifically
affected" by the proceeding).

7 We are mindful of the fact that nearly fifteen years
passed as Decoulos and the board litigated the complaints at
issue here. Although the board has stayed suspension of

10
arbitrary and capricious, Decoulos has not shown that he was

prejudiced by that delay. Decoulos argues that the board should

have established a statute of limitations and emphasizes that

the administrative action has taken more than thirteen years to

complete. Despite this significant delay, we may set aside or

modify the board's decision only if "the substantial rights of

any party may have been prejudiced" as a result. G. L. c. 30A,

§ 14 (7). Decoulos asserts that he was prejudiced because the

delay compromised the memory of one witness, Mark Jablonski,

about events at Site A in May 2003. However, Jablonski

testified that he remembered the events in question and was able

to answer numerous questions about them. Even if Jablonski's

memory of details was not "exact," Decoulos has "point[ed] to

nothing in the record" to show that the Jablonski's memory of

the relevant events had deteriorated over time, nor, indeed,

that Jablonski's testimony would have been material (and thus

its absence prejudicial) had he remembered more. Fisch v. Board

of Registration in Med., 437 Mass. 128, 133-134 (2002).

Decoulos has not shown that substantial prejudice resulted from

the delay as required by G. L. c. 30A, § 14 (7).

Decoulos's license until the resolution of this appeal and
Decoulos has continued to practice "minimally" during that time,
nothing in our decision should be read to endorse the delay in
this case.

11
Decoulos also argues that the lengthy time span of these

proceedings denied him procedural due process under article 11

of the Massachusetts Declaration of Rights. As with G. L.

c. 30A, § 14, "to prevail on his constitutional due process

argument, [Decoulos] must show that the delay, which was clearly

inordinate, was significantly prejudicial." Commonwealth v.

Hudson, 404 Mass. 282, 285 (1989), citing Commonwealth v.

Weichel, 403 Mass. 103, 109 (1988). Cf. Matter of McBride, 449

Mass. 154, 165-166 (2007) ("Mere delay in [attorney]

disciplinary proceedings does not result in dismissal" without

showing of prejudice). Decoulos has not shown such prejudice. 8

Decoulos also argues that the board's decision was

arbitrary and capricious because MassDEP failed to identify

stormwater outfall contamination, made ineffective cleanup

demands as compared to Decoulos's method, and wasted taxpayer

funds with its methods. Whether Decoulos's science and cleanup

methods were sound or even superior is not relevant to the

challenged decision: at issue is the discipline imposed by the

board -- not the MassDEP -- based on findings that Decoulos

violated the MCP and LSP rules of professional conduct. We

8 We also note that part of the delay was due to Decoulos's
own requests for additional time to complete filings, and there
is no evidence of deliberate delay by the board. See Hudson,
404 Mass. at 284-285; Camoscio v. Board of Registration in
Podiatry, 394 Mass. 1006, 1006-1007 (1985).

12
recognize, however, that the MassDEP's decisions during the

cleanups at Sites A and B undergirded the board's decision to

discipline Decoulos. The board's findings that Decoulos did not

comply with the MassDEP's guidance led to the disciplinary

action now being challenged. Were we to construe Decoulos's

qualms with the MassDEP decisions as arguments that the board's

implicit approval of those decisions was not supported by

substantial evidence, we would not be persuaded. 9

The board rationally found that Decoulos failed to act with

reasonable care and diligence at Site A in violation of 309 Code

Mass. Regs. § 4.02(1), "because he did not perform sufficient

assessment activities to rule out a connection between the

diesel release and the contamination at the outfall or to

support his assertions that surface runoff, and not the diesel

release, caused the contamination at the outfall." The board

also found that Decoulos did not follow the requirements and

procedures in G. L. c. 21E, and the MCP because he failed to

implement the MassDEP's requirements at Site A, including the

9 "Substantial evidence" is defined as "such evidence that a
reasonable mind might accept as adequate to support a
conclusion." G. L. c. 30A, § 1 (6). A decision does not meet
the substantial evidence requirement if "the evidence points to
no felt or appreciable probability of the conclusion or points
to an overwhelming probability of the contrary." Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 109 (2014), citing Cobble v. Commissioner of the
Dep't of Social Servs., 430 Mass. 385, 390-391 (1999).

13
requirement to conduct active LNAPL recovery, instead using a

passive system to address the LNAPL contamination without the

MassDEP's approval. The board concluded that this violated 309

Code Mass. Regs. § 4.03(3)(b).

In addition, at Site B, the board found that Decoulos did

not meet the standard of care in violation of 309 Code Mass.

Regs. § 4.02(1), because he submitted the RAO without

demonstrating that a "level of [n]o [s]ignificant [r]isk

existed" even as the data showed increasing levels of

contaminants. It found that Decoulos used incorrect

calculations and did not perform risk assessment consistent with

the practices published by the MassDEP, in violation of the MCP.

The board determined that these actions violated 309 Code Mass.

Regs. § 4.03(3)(b). All of these findings are amply supported

by evidence in the record, and it was within the board's

discretion to use its technical competence and specialized

knowledge to credit the MassDEP's scientific decisions and

determine that Decoulos had violated both the MCP and the LSP

rules of professional conduct. See G. L. c. 30A, § 14 (7);

Arthurs v. Board of Registration in Med., 383 Mass. 299, 311

n.24 (1981).

3. Presiding officer. Finally, Decoulos argues that his

hearing before the presiding officer violated article 29 of the

Massachusetts Declaration of Rights because a board member who

14
testified against Decoulos was also part of the group that

selected the presiding officer from the OADR. Article 29

extends beyond judges to hearing officers, Police Comm'r of

Boston v. Municipal Court of the W. Roxbury Dist., 368 Mass.

501, 507 (1975), but there is no evidence that Decoulos's right

to a fair hearing was violated. Nothing in the record shows

that board member in question discussed Decoulos's case with the

presiding officer, nor does Decoulos allege any impropriety in

the selection process. See Goldstein v. Board of Registration

of Chiropractors, 426 Mass. 606, 615-616 (1998); Varga v. Board

of Registration of Chiropractors, 411 Mass. 302, 306 (1991)

(noting high bar for "alleged bias and interest" to violate

article 29). The only alleged occasions of bias were the

presiding officer's decisions to deny the issuance of subpoenas

to witnesses and to prevent Decoulos from obtaining evidence

from the MassDEP. We have already found that these decisions

were made properly within the presiding officer's discretion.

There was likewise nothing improper about the presiding

officer's determination of credibility regarding the witnesses

against Decoulos. "It is for the [agency] to determine the

credibility of the witnesses and to resolve factual disputes."

D'Amour v. Board of Registration in Dentistry, 409 Mass. 572,

583 (1991), citing Cherubino v. Board of Registration of

Chiropractors, 403 Mass. 350, 356 (1988).

15
Conclusion. We affirm the Superior Court judgment denying

the plaintiff's motion, and allowing the defendant's cross

motion for judgment on the pleadings.

Judgment affirmed.

By the Court (Massing, Hand &
Smyth, JJ. 10),

Clerk

Entered: November 13, 2024.

10 The panelists are listed in order of seniority.

16