Commonwealth v. Springfield Terminal Ry. Co. (and Seven Companion Cases 1).

• Decision Date: 09 August 2011
• Docket Number: No. 10–P–617.,10–P–617.
• Citation: 951 N.E.2d 696,80 Mass.App.Ct. 22
• Parties: COMMONWEALTHv.SPRINGFIELD TERMINAL RAILWAY COMPANY (and seven companion cases 1).
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 22

951 N.E.2d 696

COMMONWEALTH

v.SPRINGFIELD TERMINAL RAILWAY COMPANY (and seven companion cases 1).

No. 10–P–617.

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 6, 2011.Decided Aug. 9, 2011.

Dennis J. Kelly, Boston, for the defendant.Randall E. Ravitz, Assistant Attorney General (Andrew A. Rainer, Assistant Attorney General, with him) for the Commonwealth.Present: RAPOZA, C.J., MILLS, & GREEN, JJ.MILLS, J.

This matter arises out of a substantial release of diesel fuel from a freight locomotive, known as MEC 506, in the Ayer railyard on August 8 and August 9, 2006. A Superior Court jury convicted the codefendants, Pan Am Railways, Inc., Springfield Terminal Railway Company (Springfield), Boston & Maine Corporation (B & M), and Maine Central Railroad Company (Maine Central) of failing to notify the Department of Environmental Protection (DEP) immediately of the release as required by G.L. c. 21E, §§ 7, 11. The defendants appeal. We affirm.

1. Background. We recite the evidence as it developed at trial.

a. The corporate defendants. The four corporate defendants compose an integrated freight rail transportation operation. Pan Am Railways, Inc., formerly known as Guilford Transportation, Inc., is the parent company of B & M, Springfield, and Maine Central.² B & M owns the Ayer railyard, and Springfield operates it. Maine Central owns the locomotive, MEC 506, from which the release occurred. The four corporations share all but one of the same officers and directors. The four corporations coordinate their operations; train cars bearing the railroads' insignias are frequently mixed, and employees of all four corporations do not meaningfully distinguish between them. Many official corporate documents and employee business cards bear the names and insignias of two or more of these entities. Accordingly, we will refer to them collectively as Pan Am hereafter.

b. The release. On August 8, 2006, MEC 506, a diesel-powered freight locomotive with a fuel capacity of 3,750 gallons, was stationary in the Ayer railyard. Between 5:00 p.m. and 7:00 p.m., MEC 506 began leaking diesel fuel onto the ground. Two Pan Am employees noticed the odor of diesel fuel at around 7:00 p.m. and reported the odor to their superiors between 8:30 p.m. and 9:00 p.m. About one hour later, after finishing an unrelated task, the two employees observed MEC 506 spilling fuel “like ... [a] waterfall.” They shut down the engine and largely stopped the leak. One of the employees then reported the release to train dispatcher Gary Munsey and to Pan Am's power control.³ In these reports, the employee estimated that hundreds of gallons of fuel had spilled into the yard.⁴

Pan Am employees worked throughout the night attempting to collect the spilled fuel with absorbent pads. MEC 506 appears to have continued leaking intermittently throughout the night, and at least one witness, a train engineer, observed leaking between 6:00 a.m. and 7:00 a.m. on August 9. The engineer visually estimated that the spill affected a ground surface area of thirty feet by sixty feet. At 6:30 a.m., a Pan Am corporate vice-president called a train master and asked about the spill. The train master, based on his observations of the railyard from approximately three hours earlier, told the vice-president that an estimated 100 gallons of fuel had spilled.

Clean-up operations continued throughout the morning of August 9. Fuel from MEC 506 had saturated the ballast—crushed rock used to support railroad track—and underlying soil around the locomotive. Pan Am employees excavated this ballast and soil and removed it from the site in several fifty-five-gallon drums. These employees replaced the excavated material with new ballast. Heavy machinery facilitated these operations, which continued throughout August 9.

At 2:45 p.m., on August 9, an anonymous informant alerted DEP to the spill by telephone. None of the four corporate defendants had made a previous report of the release to DEP. About seventeen hours had passed since Pan Am employees had first reported the spill to their superiors. Following the anonymous telephone call alerting DEP to the spill, DEP personnel contacted Pan Am management. Several corporate representatives were later present at the scene of the release, including Pan Am's environmental compliance officer, John Collins.

Personnel from DEP, as well as from the Ayer fire department and the Federal Railroad Administration (FRA), responded to the scene. Throughout the remainder of the day on August 9 and into August 10, these personnel supervised the excavation and disposal of soil contaminated by the spill.

At the same time, FRA inspectors began investigating MEC 506's fueling and travel history. Based on information received from Pan Am and a series of simple mathematical calculations, an FRA inspector concluded that 947 gallons of fuel were unaccounted for following the spill.⁵

In the aftermath of the spill, Pan Am engaged Environmental Resource Management (ERM), an environmental consultancy, to assist in remedying the spill's effects. ERM oversaw the excavation of a pit, approximately sixty feet by twenty-five feet, of potentially contaminated soil and the subsequent disposal of the soil. ERM oversaw the installation of groundwater monitoring wells on and around the railyard and analyzed soil samples from the site. Ultimately, DEP concluded that no contamination of groundwater or other harm to the local environment occurred as a result of the release.

c. Pretrial proceedings. The parties made several pretrial motions, including discovery motions by Pan Am and several motions in limine. The judge denied Pan Am's motion to exclude certain background testimony by a DEP employee about G.L. c. 21E, its implementing regulations, DEP's interpretation of its mandates, and DEP reporting procedures. The judge also denied both Pan Am's motion to prevent an ERM witness from testifying about Pan Am's prior releases and engagement of ERM to assist in remedying those releases and its motion to exclude testimony about Pan Am's delinquency in paying for services rendered by ERM.

The Commonwealth moved to exclude any statements by John Collins, Pan Am's environmental compliance officer, and to exclude evidence that he had invoked his rights against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Collins had previously announced, through counsel, his intent to invoke these rights if called to testify. The Commonwealth refused to grant him immunity. After hearing from Collins in camera, the judge concluded that Collins had a good faith basis for asserting his privilege.

After hearing additional argument from the parties, the judge allowed the Commonwealth's motion to exclude Collins's statements and any reference to his invocation of his rights against self-incrimination. Subsequently, Pan Am's motion requesting that the judge grant judicial immunity or order the Commonwealth to apply for statutory immunity for Collins was denied. Collins did not testify at the trial, and neither side was permitted to elicit any statements he had made to other trial witnesses.

d. The trial. The Commonwealth presented several witnesses employed by Pan Am, DEP, the FRA, and ERM to testify to the above facts. In addition, a DEP witness testified, over Pan Am's objection, about DEP's responsibilities with respect to c. 21E and other environmental laws. He also testified about the Ayer railyard's proximity to “sensitive receptors.” When asked to define a “sensitive receptor,” the witness gave the example of a school because releases of hazardous material could affect schoolchildren. He also discussed a “priority resource map” prepared by DEP to identify “sensitive receptors” near the Ayer railyard. This map was admitted as a trial exhibit.

A former ERM project manager who led the response to this release also testified over objection that Pan Am had engaged ERM to assist with other releases. The witness also testified, again over objection, that ERM had difficulty in collecting payment from Pan Am for ERM's services related to these remedial efforts.

After the Commonwealth rested, Pan Am's motion for required findings of not guilty was denied. Pan Am then rested without presenting evidence. Following lengthy instructions, the jury convicted on all counts. The jury specified, using special verdict slips, that they based their verdict on each count on a finding of “corporate responsibility for collective knowledge of employee(s)/ agent(s).” ⁶

e. Sentence. The judge sentenced each defendant on its first count to pay a fine of $100,000, plus a $25,000 surfine, within thirty days. On its second count each defendant was placed on probation for three years with several special conditions, including restrictions on disposition of assets and a bar on compensation for any personnel exceeding $100,000 in a twelve-month period until payment of the imposed fines. Pan Am paid the fines into an interest-bearing account held jointly with the Attorney General pending the outcome of its appeals. The judge required the defendants' corporate officers to sign the conditions of probation in their official capacities.

f. Posttrial proceedings. After filing its notice of appeal, Pan Am moved to stay execution of the sentences. The judge denied the motion and ordered payment. Pan Am sought single justice relief from this court and the Supreme Judicial Court. See Mass.R.Crim.P. 31(a), as appearing in 378 Mass. 902 (1979); Mass.R.A.P. 6, as amended, 378 Mass. 930 (1979).⁷ Single justices of both courts denied relief, and Pan Am appealed. A panel of this court affirmed the single justice of this court, Commonwealth v. Springfield Terminal Ry. Co., 77 Mass.App.Ct. 225, 929 N.E.2d 335 (2010), and the Supreme Judicial Court denied further appellate review, 458 Mass. 1104, 934 N.E.2d 826 (2010).

g. A...