Goldberg v. Board of Health of Granby
| Decision Date | 12 July 2005 |
| Citation | 830 N.E.2d 207,444 Mass. 627 |
| Parties | Louise C. GOLDBERG & others<SMALL><SUP>1</SUP></SMALL> v. BOARD OF HEALTH OF GRANBY & another.<SMALL><SUP>2</SUP></SMALL> |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wendy H. Sibbison, Greenfield (Albert E. Bessette, Jr., Holyoke, with her) for the plaintiffs.
Kenneth L. Kimmell, Boston, for Board of Health of Granby.
Martin R. Healy, Boston, for Holyoke Sanitary Landfill, Inc.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
The plaintiffs own or live in residences located near a solid waste landfill (landfill) operated by Holyoke Sanitary Landfill, Inc. (HSLI) in Granby. In 2003, the board of health of Granby (board), acting on a favorable report of the Department of Environmental Protection (department), allowed HSLI to deposit two million cubic yards of solid waste on top of the then-existing landfill. The plaintiffs contend that the board's decision contravened its obligations under the solid waste management siting provisions of G.L. c. 111, §§ 150A and 150A ½, and the regulations promulgated thereunder. A judge in the Superior Court disagreed and on cross motions for judgment on the pleadings granted judgment for the defendants. We granted the plaintiffs' application for direct appellate review and now affirm.
1. Background. The landfill has accepted waste since 1972. When the events at issue here began, HSLI had last received permission to expand the landfill in 1996, pursuant to an application process begun in 1993. The 1996 expansion had required a permit, see 310 Code Mass. Regs. § 19.030 (1994), a "site suitability report" from the department, see 310 Code Mass. Regs. § 16.13 (2001), and a "site assignment" from the board.3 G.L. c. 111, § 150A. HSLI made representations in its 1993 application as to the expected volume of waste that the landfill would accept, and the 1996 permit the department issued for the landfill specified a maximum volume of approximately 1.5 million cubic yards. The 1995 site assignment issued by the board, however, contained no limitation on the height or volume of the landfill. In 2000, HSLI proposed to add new waste on top of thirty-two acres of the existing ninety-acre landfill (vertical addition), without expanding the geographic "footprint" provided for by the 1995 site assignment. Unsure whether the vertical addition would require a new site assignment, HSLI requested guidance from the department in a July, 2002, letter.
The department's response to HSLI, and the developments subsequent to that response, involve details of the statutory and regulatory scheme for solid waste landfills, which we summarize below.
General Laws c. 111, §§ 150A and 150A ½, provide the "process for obtaining a facility site assignment" for a solid waste landfill, a process we discussed at length in TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 11-12, 725 N.E.2d 188 (2000). Section 150A requires a site assignment "for a new facility or the expansion of an existing facility" as a landfill. However, § 150A does not define the terms "new facility or expansion of an existing facility," a task the parties agree the Legislature delegated to the department. Pursuant to its authority, the department has defined "[e]xpand a [s]ite" to mean "to move a solid waste facility's operation to a previously unassigned site that is contiguous to the original site or to modify a solid waste facility's operation causing it to exceed any capacity or total volume limit stated in its current site assignment" (emphasis added). 310 Code Mass. Regs. § 16.02. The plaintiffs do not contend that the department's interpretation of the statute is in this regard erroneous.
As the regulation makes clear, the department does not consider every change (including an increase in capacity) to a landfill to constitute an "expansion." Here, HSLI did not propose to "expand a site," as "expansion" is defined under the regulation. 310 Code Mass Regs. § 16.02. Its plans involved neither moving the landfill's "operation to a previously unassigned site" nor exceeding "any capacity or total volume limit stated in its current site assignment." Id.4 However, in addition to promulgating procedures for "a new facility or the expansion of an existing facility," the department has established a procedure for the "major modification" of an existing landfill, a term not found in the statutes. Included among the projects deemed "major modifications" are "vertical expansions beyond the limits of an approved plan." 310 Code Mass. Regs. § 16.22(2). The regulations, in practical effect, provide different approval processes for "expansions" and for "major modifications." Pursuant to § 150A, no site assignment for "a new facility or [an] expansion" may issue until it is clear "that the [seventeen] siting criteria of [§ 150A ½] have been met by the proposed site."5 However, pursuant to the regulations, an application for "a major modification" need not involve a full evaluation of all seventeen § 150A ½ criteria, but rather, at the department's discretion, may be required to satisfy an abbreviated review "that addresses all criteria affected by the modification, as determined by the [d]epartment in writing." 310 Code Mass. Regs § 16.22(2).
Returning to the events of 2002, in response to HSLI's inquiry, the department notified HSLI in a letter dated September 9, 2002, that the vertical addition would constitute a "major modification" of the landfill. The department informed HSLI that the criteria "affected" by the proposed vertical addition were (1) traffic and access to the site; (2) potential for the creation of nuisances; (3) consideration of other sources of contamination or pollution; and (4) "any additional site suitability criteria ... requested in writing by the [board]."6
Absent from the criteria selected by the department was any reference to G.L. c. 111, § 150A ½ (6), which calls for landfill site assignments to take into account a site's proximity to residential areas. The statute itself does not specify any "restricted area" or "setback" from residential property, but the department regulations do. Prior to June, 2001, 310 Code Mass. Regs. § 16.40(3)(a)(15) established as a "restricted area," deemed unsuitable for landfill siting, those lands within 500 feet of a residential dwelling. In 2001, the department increased this "setback" to 1,000 feet. Nearly all of the plaintiffs own or reside in property between 500 and 1,000 feet from the landfill, and as we discuss below, the department's and board's refusals to consider the 1,000 foot setback is central to the plaintiffs' claims.
In December, 2002, HSLI submitted to the department an "Application to Modify the Existing Site Assignments for the Granby Sanitary Landfill." The department issued a favorable site suitability report and forwarded it to the board. In May, 2003, the board, conducting its own independent review, see G.L. c. 111, § 150A, held two days of hearings. There, the plaintiffs asserted that the proposed vertical addition constituted an "expansion" and asked the board to require compliance with all of the siting requirements of the department regulations or, at a minimum, to determine that the 1,000 foot residential setback was among the criteria "affected" by HSLI's plans.7 The board rejected the plaintiffs' suggestions and determined that HSLI's compliance with the siting criteria identified by the department would "fully protect[ ] the public health, safety and the environment, and that no further meaningful protection would be achieved by applying any of the other siting criteria." In July, 2003, the board granted HSLI's application. The plaintiffs petitioned for relief in the Superior Court, pursuant to G.L. c. 30A, § 14.8
2. Discussion. The plaintiffs raise several challenges to the board's approval of the vertical addition. Reduced to their principal points, these are (a) the statute forbids "the truncated site assignment inquiry [the department] allows" for vertical additions; (b) the department regulations themselves do not allow for the action the department undertook in abbreviating the site review process; (c) the board had an independent duty to evaluate the 2003 site assignment using the full panoply of statutory "siting criteria"; and (d) the decisions of the department and the board not to require compliance with the new 1,000 foot residential setback regulation were erroneous as a matter of law. We discuss each of these arguments in turn.
(a) Legality of the regulatory scheme under the statutes. The plaintiffs' central contention is that the only site assignment process for HSLI's 2000 proposal that satisfies the statutes is one that considers all of the factors enumerated in G.L. c. 111, § 150A ½, including the proximity requirement. 9 The statutes require no such reading.
In assessing the legality of an administrative agency's properly promulgated regulations,10 we employ sequentially two well-defined principles. First, we determine, using conventional tools of statutory interpretation, whether the Legislature has spoken with certainty on the topic in question, and if we conclude that the statute is unambiguous, we give effect to the Legislature's intent. See Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 646, 729 N.E.2d 627 (2000) (); Massachusetts Hosp. Ass'n v. Department of Med. Sec., 412 Mass. 340, 346, 588 N.E.2d 679 (1992). Second, if the Legislature has not addressed directly the pertinent issue, we determine whether the agency's resolution of that issue may "be reconciled with the governing legislation." Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgt. Bd., 421 Mass. 196, 211, 656 N.E.2d 563 (1995). See Chevron U.S.A. Inc. v. Natural Resources Defense Council, ...
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