Town of Brookline v. Commissioner of Dept. of Environmental Quality Engineering

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; NOLAN
Citation439 N.E.2d 792,387 Mass. 372
Decision Date03 September 1982
Parties, 13 Envtl. L. Rep. 20,408 TOWN OF BROOKLINE et al. 1 v. COMMISSIONER OF the DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING et al. 2 (and two companion cases 3 ).

Page 792

439 N.E.2d 792
387 Mass. 372, 13 Envtl. L. Rep. 20,408
TOWN OF BROOKLINE et al. 1
v.
COMMISSIONER OF the DEPARTMENT OF ENVIRONMENTAL QUALITY
ENGINEERING et al. 2
(and two companion cases 3).
Supreme Judicial Court of Massachusetts,
Suffolk.
Argued May 5, 1982.
Decided Sept. 3, 1982.

Page 796

[387 Mass. 373] Robert W. Meserve and Verne W. Vance, Jr., Boston, for Medical Area Total Energy Plant, Inc.

Thomas B. Bracken, Boston, for the town of Brookline, et al.

Michael Lambert, pro se.

Carl F. Dierker, Boston (Stephen M. Leonard, Asst. Atty. Gen., with him), for Com'r of Dept. of Environmental Quality Engineering.

Before [387 Mass. 372] HENNESSEY, C.J., and LIACOS, NOLAN and O'CONNOR, JJ.

[387 Mass. 374] NOLAN, Justice.

These consolidated cases involve appeals from several decisions of the Department of Environmental Quality Engineering (DEQE) pursuant to G.L. c. 30A, § 14. The decision of November 30, 1979, approved construction of that portion of a plan submitted by Medical Area Total Energy Plant, Inc. (MATEP), involving production of steam and chilled water in the Mission Hill area of Boston bordering the town of Brookline. The decision of May 27, 1980, disapproved construction of the other portion of the MATEP facility, involving production of electricity by six diesel engine generators. The decision of November 24, 1980, approved the diesel portion of the facility, subject to certain conditions. The town of Brookline and a group of residents of Brookline (Brookline opponents), and Michael Lambert (Mission Hill opponent) 4 challenge the DEQE decisions in so far as they approve construction of the facility. MATEP challenges the legality of certain limitations on emissions from the diesel portion of the plant, as well as certain conditions on operation of the facility.

Petitions for judicial review were filed in the Superior Court, consolidated, and reported to the Appeals Court pursuant to

Page 797

Mass. R. Civ. P. 64, 365 Mass. 831 (1974). 5 We granted the parties' application for direct appellate review.

Facts. MATEP submitted, in January, 1977, an application to the DEQE for required preconstruction approval of its plan to build a cogeneration energy facility in the Mission Hill area. See 310 Code Mass. Regs. 7.02(2) (1979). The plant would provide steam, chilled water, and electricity for hospitals, educational and research institutions, and the [387 Mass. 375] Mission Park housing complex largely by means of power produced by six diesel engine generators.

It is principally the emissions and effects of the emissions from the diesel portion of the facility which are the subjects of this appeal. The diesels will emit quantities of oxides of nitrogen (NO subx ). The most common oxide emitted will be nitric oxide (NO). The NO will rise in the atmosphere and combine with ozone to produce nitrogen dioxide (NO sub2 ). The NO sub2 , a harmful pollutant, will return to the earth's surface. On January 31, 1978, the diesel portion of the facility was disapproved because it would have resulted in higher NO sub2 levels than the DEQE then thought allowable to protect the public health. 6

The Brookline opponents requested an adjudicatory hearing on the decision approving the steam/chilled water portion of the facility. MATEP requested an adjudicatory hearing on that part of the decision disapproving the diesel portion of the plant. The requests for adjudicatory hearings were granted, and the hearings were combined. Michael Lambert and several local groups (the Mission Hill interveners) were granted leave to intervene. 7

The hearing began in late 1978 and continued for over twenty-three days. The hearing officer, Ellyn Weiss, issued a tentative decision. After considering comments on Weiss's decision, the DEQE, through Deputy Commissioner David Fierra, issued a final decision on November 30, 1979, approving the steam/chilled water portion of the facility and disapproving the diesel portion. In that segment of the decision disapproving the diesel portion of the facility, Fierra [387 Mass. 376] found that ambient NO sub2 levels above 320 ug/m3 8 on an hourly basis would be potentially injurious to public health, and that the MATEP facility would result in NO sub2 concentrations above that level. Fierra provided guidelines for modifying MATEP's diesel operating plan in order for it to secure approval.

In January, 1980, MATEP submitted a revised plan. Although most aspects of this plan were approved, the diesel portion was again disapproved because the DEQE found that it had insufficient data to determine whether the plan would violate the guidelines with respect to some heavily trafficked areas ("hot spots").

On petition of MATEP, the DEQE held a hearing on the "hot spot" issue, which was presided over by both Weiss and Fierra. Following the hearing, on November 24, 1980, the DEQE issued a decision approving the diesel portion subject to certain conditions.

In addition to NO subx , the diesel portion of the MATEP facility will emit quantities of particulates which include some particles of substances that are thought to be carcinogenic

Page 798

or mutagenic (polycyclic aromatic hydrocarbons [PAH], polynuclear organic matter [POM], and trace metals). The DEQE, for reasons described later in this opinion, declined to make findings on the issues raised by the potentially carcinogenic and mutagenic emissions.

Before us are appeals in which the DEQE is defending its decision, MATEP is arguing for fewer controls, and the opponents are arguing for greater controls. For reasons appearing below, we are remanding the case to the DEQE for hearings on the carcinogen and mutagen issue, and affirming all other portions of its decision.

MATEP's Challenge.

1. Vagueness of regulation. MATEP's first attack on the DEQE decision is that the regulation on which the decision is based, 310 Code Mass. Regs. 7.01 (1979), is so vague that it failed to give fair warning as to what the standards for the [387 Mass. 377] DEQE decision would be. 9 Such an allegation, if true, would be violative of MATEP's due process rights. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 363, 294 N.E.2d 393 (1973).

The regulation in question states: "No person owning, leasing, or controlling the operation of any air contamination source shall willfully, negligently, or through failure to provide necessary equipment or to take necessary precautions, permit any emission from said air contamination source or sources of such quantities of air contaminants which will cause, by themselves or in conjunction with other air contaminants, a condition of air pollution." 310 Code Mass. Regs. 7.01. "Air pollution" is defined in the regulations as the presence of air contaminants which would: "a. cause a nuisance; b. be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or c. unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business." 310 Code Mass. Regs. 7.00 Definitions (1979).

MATEP contends that the above regulatory language impermissibly fails to give fair notice of what levels of emissions will be tolerated. MATEP argues that so much administrative discretion is placed in the DEQE by the regulation that MATEP had no way of knowing during the design phase of the project whether, in the opinion of the agency, emissions from the diesels would "unreasonably interfere with the comfortable enjoyment of life." To buttress its argument, MATEP points to the variance in the levels of NO sub2 that the DEQE was willing to accept during the years of hearings on the project. In 1977, the DEQE, before public hearings, proposed to accept a NO sub2 one-hour exposure [387 Mass. 378] limit of 480 ug/m 3. In 1978, the DEQE disapproved a MATEP design because it could not meet an exposure limit of 200 ug/m3. In 1979, the DEQE again disapproved a MATEP design on the ground that the one-hour NO sub2 limit needed to protect public health in 320 ug/m3. Thus, continues MATEP, not only was the regulation vague prior to hearings, but the DEQE further provided no clear legal standard during the hearings.

We note first that the regulation of business and economic activity is subject to a vagueness test less strict than that applied to most criminal behavior. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra. Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Commonwealth v. Gustafsson, 370 Mass. 181, 187, 346 N.E.2d 706 (1976). The circumstances of this case demonstrate why rules governing commercial conduct need not be drawn with undue precision. With the incessant advance of science, it would be unreasonable to ask the DEQE to define specifically and mathematically in a rule the limits each emission may

Page 799

reach. Rather, "the practical necessities of discharging the business of government inevitably limit the specificity with which [a regulatory agency] can spell out prohibitions." Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). Cf. Commonwealth v. Orlando, 371 Mass. 732, 735, 359 N.E.2d 310 (1977). See also Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 118, 128 N.E.2d 772 (1955) ("The degree of certainty with which standards for the exercise of discretion are set up must necessarily depend on the subject matter and the circumstances").

A vague rule subjects people to an unascertainable standard. Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). The standard promulgated by the DEQE in this case was not, however, unascertainable. Rather, during...

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39 practice notes
  • Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., HARTSOCK-FLESHER
    • United States
    • Supreme Court of West Virginia
    • 14 December 1984
    ...464 U.S. 937, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983); Town of Brookline v. Commissioner of Dept. of Environmental Quality Engineering, 387 Mass. 372, 439 N.E.2d 792 (1982); City of Philadelphia v. Cohen, 479 A.2d 32 We have not had occasion to adopt this aspect of the vagueness standard, but ......
  • Chief of Police of Worcester v. Holden, SJC–11682.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 11 March 2015
    ...322 (1926), or if it “subjects people to an unascertainable standard.” Brookline v. Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378, 439 N.E.2d 792 (1982), S. C., 398 Mass. 404, 497 N.E.2d 9 (1986). The degree of vagueness that is permissible under principles of due pr......
  • Town of Weymouth v. Mass. Dep't of Envtl. Prot., No. 19-1794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 3 June 2020
    ...all air pollution generally, not just air toxics. See Town of Brookline v. Comm'r of Dep't of Envtl. Quality Eng'g ("Brookline I"), 387 Mass. 372, 439 N.E.2d 792, 799 (1982) (giving DEP discretion to interpret 310 Mass. Code Regs. § 7.01 ); see also Brookline II, 497 N.E.2d at 13 ("The Legi......
  • The State Implementation Plan Process
    • United States
    • Air pollution control and climate change mitigation law
    • 18 August 2010
    ...Cir. 1996). 36. 42 U.S.C. §7407(d)(3)(E), §107(d)(3)(E). 37. Town of Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 387 Mass. 372, 439 N.E.2d 372, 13 ELR 20408 (Mass. 1982); see also 42 U.S.C. §7411(a)(3), CAA §111(a)(3). 38. California ex rel. State Air Resources Bd. v. De......
  • Request a trial to view additional results
38 cases
  • Town of Weymouth v. Mass. Dep't of Envtl. Prot., No. 19-1794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 3 June 2020
    ...all air pollution generally, not just air toxics. See Town of Brookline v. Comm'r of Dep't of Envtl. Quality Eng'g ("Brookline I"), 387 Mass. 372, 439 N.E.2d 792, 799 (1982) (giving DEP discretion to interpret 310 Mass. Code Regs. § 7.01 ); see also Brookline II, 497 N.E.2d at 13 ("The Legi......
  • Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., HARTSOCK-FLESHER
    • United States
    • Supreme Court of West Virginia
    • 14 December 1984
    ...464 U.S. 937, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983); Town of Brookline v. Commissioner of Dept. of Environmental Quality Engineering, 387 Mass. 372, 439 N.E.2d 792 (1982); City of Philadelphia v. Cohen, 479 A.2d 32 We have not had occasion to adopt this aspect of the vagueness standard, but ......
  • Chief of Police of Worcester v. Holden, SJC–11682.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 11 March 2015
    ...322 (1926), or if it “subjects people to an unascertainable standard.” Brookline v. Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378, 439 N.E.2d 792 (1982), S. C., 398 Mass. 404, 497 N.E.2d 9 (1986). The degree of vagueness that is permissible under principles of due pr......
  • Scione v. Commonwealth, SJC-12536
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 15 January 2019
    ...vagueness test less strict than that applied to most criminal behavior." Brookline v. Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378, 439 N.E.2d 792 (1982), S.C., 398 Mass. 404, 497 N.E.2d 9 (1986).7 The residual clause of G. L. c. 269, § 10G, provides that a "violent......
  • Request a trial to view additional results
1 books & journal articles
  • The State Implementation Plan Process
    • United States
    • Air pollution control and climate change mitigation law
    • 18 August 2010
    ...Cir. 1996). 36. 42 U.S.C. §7407(d)(3)(E), §107(d)(3)(E). 37. Town of Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 387 Mass. 372, 439 N.E.2d 372, 13 ELR 20408 (Mass. 1982); see also 42 U.S.C. §7411(a)(3), CAA §111(a)(3). 38. California ex rel. State Air Resources Bd. v. De......

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