TBI, Inc. v. Bd. Of Health of North Andover, 03100

• Decision Date: 10 March 2000
• Docket Number: SJC-08007
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: (Mass. 2000) TBI, INC. v. BOARD OF HEALTH OF NORTH ANDOVER. No.:

725 N.E.2d 188 (Mass. 2000)

TBI, INC. v. BOARD OF HEALTH OF NORTH ANDOVER.

No.: SJC-08007

SUPREME COURT OF THE STATE OF MASSACHUSETTS

Argued December 6, 1999

March 10, 2000

Essex County

The Supreme Judicial Court granted an application for direct appellate review.

Solid Waste Management. Department of Environmental Protection. Municipal Corporations, Board of health. Environment, Air pollution. Administrative Law, Regulations, Decision, Agency's interpretation of regulation, Judicial review. Statute, Construction.

Civil action commenced in the Superior Court Department on December 8, 1997.

Motions for judgment on the pleadings and for partial summary judgment were heard by Richard E. Welch, III, J.

Thomas A. Mackie (John D. Beling with him) for the plaintiff.

Kenneth L. Kimmell (Cristin L. Rothfuss with him) for the defendant.

Kevin F. O'Donnell, for Joan Kulash & others, amici curiae, submitted a brief.

Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.

COWIN, J.

TBI, Inc. (TBI), filed an application in April, 1997, pursuant to G. L. c. 111, § 150A, with the board of health of North Andover (board) and the Department of Environmental Protection (DEP) for a site assignment to construct a recycling and solid waste transfer station (facility) in North Andover (town). On July 23, 1997, the DEP issued a favorable report on TBI's application. After an evidentiary hearing, the board issued a written decision on November 5, 1997, denying the application because the proposed site would violate air quality standards and would cause a concentration of facilities in the town. The board also noted that increased traffic congestion due to the proposed facility would have resulted in denial of the application without prejudice, subject to reapplication if the Massachusetts Highway Department approved a traffic signal. Finally, the board ruled that, although the site would violate a Federal Aviation Administration (FAA) guideline prohibiting the intake of certain kinds of waste near an airport, the application would not be denied for that reason. If that were the only issue, the board would have approved the site assignment on the condition that the facility not accept such kinds of waste.

The board also assessed fees against TBI. Prior to the board's decision, it assessed an application fee of $20,729 to TBI pursuant to 310 Code Mass. Regs. § 16.30 (1)(a) (1994). Because of the complexity of the hearings, however, the actual costs incurred by the board were $41,211.29. As a result, on January 22, 1998, the board voted to assess a supplemental fee of $20,482.29 under its rule authorizing fees for outside consultants. TBI refused to pay the supplemental fee.¹

Pursuant to G. L. c. 111, § 150A, and G. L. c. 30A, § 14 (7), TBI appealed from the board's denial of its application and the assessment of the supplemental fee to the Superior Court. A Superior Court judge denied TBI's motion for judgment on the pleadings and affirmed the board's decision denying the application. In a separate decision, the judge allowed TBI's motion for summary judgment refusing to allow the board to assess a supplemental fee.²

TBI appealed from the denial of the application and the board cross-appealed from the denial of the supplemental fee. We granted TBI's application for direct appellate review. TBI challenges each of the board's determinations on the ground that the board exceeded its statutory authority.³ We conclude that the Superior Court judge properly affirmed the denial of the site assignment application based on the board's air quality concerns and the concentration of facilities in the town. Because we conclude that the board's denial was proper on those grounds, we need not address TBI's arguments concerning traffic congestion and the FAA guideline regarding waste near an airport. We also affirm the Superior Court judgment denying the board's assessment of a supplemental fee.

1.Site assignment statute. In response to a shortage of solid waste facilities in the Commonwealth in the mid-1980's, the Legislature amended the existing process for obtaining a facility site assignment. G. L. c. 111, § 150A, as amended through St. 1987, c. 584, § 16. Under the amended statute, an applicant must seek a site suitability determination from the DEP. The DEP determines whether the proposed site satisfies the site suitability criteria established in G. L. c. 111, § 150A½, inserted by St. 1987, c. 584, § 17, and its own regulations, 310 Code Mass. Regs. § 16.40 (1994). These criteria include standards governing the relationship between the proposed site and water supply, air quality, traffic congestion, wildlife populations and agriculture. § 150A½. In addition, DEP considers whether a proposed site will cause a nuisance or a concentration of facilities in one municipality. If the DEP issues a favorable site suitability report, the local board of health holds a public hearing in which it too must determine whether the proposed site meets the criteria. By statute, the DEP's site suitability determination is not binding on the local board which must make an independent determination whether the proposed site complies with the criteria. G. L. c. 111, § 150A. It is this determination that TBI challenges.

2. Air quality standard. One of the grounds for denial of TBI's application was that the site assignment would violate the air quality criteria as established by State and Federal air quality standards. 310 Code Mass. Regs. § 16.40(4)(e). After receiving testimony from both its own and TBI's air quality experts and weighing the credibility of the witnesses, the board determined that the construction of the facility at the proposed site would cause a level of particulate matter (PM10) higher than permitted by the national ambient air quality standard established by the United States Environmental Protection Agency (EPA).⁴

(a) Rebuttable presumption. The board reached the air quality determination pursuant to 310 Code Mass. Regs. § 16.40(1)(c)(1) which provides that all applications "shall be evaluated with the presumption that the proposed facility shall be designed and constructed to meet all relevant state and federal statutory regulatory and policy requirements." The board interpreted this regulation as creating a rebuttable presumption that requires the board to presume compliance with Federal and State standards unless presented with evidence to the contrary.

TBI contends that the board exceeded its authority by considering whether the proposed site would comport with the EPA

PM10 concentration standards.⁵ TBI argues that the plain language of 310 Code Mass. Regs. § 16.40 (1)(c)(1) prevents the board from evaluating whether granting the proposed site assignment would comport with the EPA PM10 standard. Under TBI's reasoning, the regulation's absolute presumption requires the board to presume that the proposed facility would comply with the EPA PM10 standard and the board could not deny the site assignment based on air quality criteria.

We conclude that the board's interpretation of 310 Code Mass. Regs. § 16.40(1)(c)(1) as creating a rebuttable presumption of compliance with Federal and State standards is correct. A local board is required to determine whether a proposed site satisfies the criteria established in § 150A½ and the DEP regulations. 310 Code Mass. Regs. § 16.40(1)(b). The air quality criteria specifically require a determination by the board that the proposed site assignment will not violate State and Federal air quality standards or otherwise cause a danger to the public health, safety, or the environment. 310 Code Mass. Regs. § 16.40(4)(e). If the board were to apply an absolute presumption that the proposed site would comply with the EPA PM10 standard, it would be unable to fulfil its obligation under the air quality criteria to determine compliance with Federal standards.⁶ Indeed, in many cases an absolute presumption of compliance would obviate the need for a hearing because the board would not beable to consider compliance with Federal and State standards as required by the criteria. Regulations may not be interpreted in a way that produces a result which "is contrary to the plain language of the statute and its underlying purpose." Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997). The application of a rebuttable presumption preserves both the board's statutorily mandated role in approving a site assignment by allowing the board to consider all the siting criteria, and its role in applying the presumption (in the absence of other evidence) that the proposed facility will be designed and constructed to comply with State and Federal requirements.

(b) Detailed design and operation plans. The board received testimony from a certified meteorologist that, based on accepted scientific models, operation of the facility as proposed would create a level of PM10 higher than allowed under the EPA standard. Based on this evidence, the board determined that the proposed facility would not comply with the EPA PM10 concentration standards, and the board shifted the burden to TBI to produce evidence that it could comply with the air quality standard. At the commencement of the evidentiary hearing, the hearing officer had ruled that the parties could "inquire what measures TBI intends to implement . . . in order to comply with the siting conditions." The hearing officer noted that he was "not requiring TBI to submit detailed design or operational plans which DEP will require in its permitting process." TBI offered to perform postoperation air testing and promised to devise solutions if the testing showed noncompliance with the PM10 standard. The board concluded, however, that it could not grant a site assignment based solely on TBI's promise to solve potential air quality problems. The board, therefore, denied the site assignment because TBI did not enumerate specific techniques likely to...