Town of Warren v. Hazardous Waste Facility Site Safety Council

• Decision Date: 30 May 1984
• Parties: , 21 ERC 1213 TOWN OF WARREN et al. 1 v. The HAZARDOUS WASTE FACILITY SITE SAFETY COUNCIL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 102

466 N.E.2d 102

392 Mass. 107, 21 ERC 1213

TOWN OF WARREN et al. ¹ v. The HAZARDOUS WASTE FACILITY SITE SAFETY COUNCIL et al.

²

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Nov. 8, 1983.

Decided May 30, 1984.

William W. Hays, Worcester (Nancy Jakimedes, Worcester, with him), for the Town of Warren.

Gregor I. McGregor, Boston (John F. Shea, Boston, with him), for interveners.

JoAnn Shotwell, Asst. Atty. Gen., for Hazardous Waste Facility Site Safety Council & another.

Allan van Gestel, Boston (Christopher P. Davis, Boston, with him), for IT Corp.

Joseph D. Alviani and Marcia Drake Seeler, Boston, for New England Legal Foundation & others, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

In these appeals by the town of Warren and numerous citizen interveners, we consider the constitutionality of St.1980, c. 508, An Act further regulating the disposal of hazardous waste materials, and the enforceability of town by-laws that would exclude certain hazardous waste facilities from the town. Also, we consider whether the Superior Court had jurisdiction to review determinations by the defendant Hazardous Waste Facility Site Safety Council (council) that a proposal to locate a hazardous waste facility in the town was "feasible and deserving of state assistance," see G.L. c. 21D, § 7, and whether the council was required to promulgate rules and regulations before making those determinations. We conclude that St.1980, c. 508, is constitutional, that the by-laws are unenforceable to exclude from the town the facility proposed by the defendant IT Corporation, that the Superior Court did not have jurisdiction to review the council's "feasible and deserving of state assistance" determination, and that the council was not required to promulgate rules and regulations.

In 1979 the Legislature established a special commission to "investigate alternative procedures to be utilized by the authorities in granting local and state approval of sites for hazardous waste facilities," and to propose appropriate legislation. St.1979, c. 704, § 4. Draft legislation was submitted by the commission and on July 15, 1980, the Legislature enacted St.1980, c. 508. The statute's preamble recited that the Legislature's purpose was "to immediately encourage and expedite the process of development of hazardous waste treatment and disposal facilities which provide adequate safeguards to protect the public health, safety, and environment of the commonwealth."

To achieve that purpose, St.1980, c. 508, § 8, inserted in the general laws of the Commonwealth the Massachusetts Hazardous Waste Facility Siting Act (Siting Act), codified as G.L. c. 21D. The Siting Act created the council, which monitors and implements the siting process. G.L. c. 21D, § 4.

A developer proposing to construct, maintain, and operate a hazardous waste facility initiates the siting process by submitting a notice of intent to the council and to various other State agencies. The notice may, but need not, propose specific sites. If specific sites are proposed, the notice must be submitted to the communities in which those sites are located. The notice must include, among other items, information about the hazardous wastes that would be treated, the procedures to be used, and any proposed sites. Also, the notice must include preliminary specifications and architectural drawings of the proposed facility. Following the receipt of a completed notice of intent, the council has fifteen days to determine whether the proposal is "feasible and deserving of state assistance." G.L. c. 21D, § 7. If the developer has not proposed specific sites, or has done so but is willing to accept alternatives, the council solicits suggestions of sites from various described persons. If more than three sites are suggested, the council reduces the potential sites to three, including the developer's suggested site, if any. G.L. c. 21D, § 9.

Within thirty days after receiving either a notice of intent naming a potential site within its borders or, in the case of a site named during the site suggestion period, notice that a site within its borders is on the final list of suggested sites, each community in which such a site is located, referred to in the statute as a "host" community, is required to establish a local assessment committee. The local assessment committee is made up of representatives of the host city or town and may also include representatives of abutting communities. G.L. c. 21D, § 5.

The developer must then submit to the council and to the Secretary of the Executive Office of Environmental Affairs a preliminary project impact report for each site under consideration. The report shall consist of (1) the environmental impact report required by G.L. c. 30, §§ 62-62H, to be reviewed by the secretary, and (2) a social and economic appendix, to be reviewed by the council. G.L. c. 21D, § 10. The special commission that drafted the Siting Act expressed the hope that the preliminary report would provide the basis for negotiation of a siting agreement between the developer and the host community. 1980 House Doc. No. 6756, at 22.

No facility can be constructed unless a siting agreement has been established by the developer and the host community. G.L. c. 21D, § 12. The siting agreement results from negotiations between the local assessment committee and the developer and specifies the terms and conditions under which the facility will be constructed and operated. G.L. c. 21D, §§ 12 and 13. The agreement is a "nonassignable contract binding upon the developer and the host community, and enforceable against the parties in any court of competent jurisdiction." G.L. c. 21D, § 12. A local assessment committee may request technical assistance grants from the council to pay costs incurred in the siting process. G.L. c. 21D, § 11.

Sixty days after the determination by the council and the secretary that the preliminary project report is in compliance with the law, if an impasse in negotiations exists, the council may require the local assessment committee and the developer to submit the issues in dispute to final and binding arbitration. Such arbitration is to be conducted in accordance with the provisions of G.L. c. 251, including the provisions for judicial review of an arbitration decision. G.L. c. 21D, § 15.

Upon the establishment of a siting agreement, the developer must prepare a final project impact report which incorporates the provisions of the siting agreement. If the secretary and the council find that the final project impact report is in compliance with all applicable provisions of law, the council may then declare that the siting agreement is operative and is to be given full force and effect. G.L. c. 21D, § 10. The siting agreement is the final goal of the Siting Act, G.L. c. 21D, which, as we have said, was inserted in the general laws by St.1980, c. 508, § 8. It was designed, at least in part, to mitigate local resistance to the siting of hazardous waste facilities. 1980 House Doc. No. 6756, at 13.

Other sections of St.1980, c. 508 have a similar purpose. For instance, § 2A of St.1980, c. 508 amended G.L. c. 21C, § 7, to provide that the Department of Environmental Quality Engineering "shall grant a license to construct, maintain and operate a [hazardous waste] facility on a site if it determines that said construction, maintenance, and operation does not constitute a significant danger to public health, public safety, or the environment, does not seriously threaten injury to the inhabitants of the area or damage to their property, and does not result in the creation of noisome or unwholesome odors." That determination is subject to judicial review. G.L. c. 21C, § 11. General Laws c. 111, § 150B, was inserted by § 4 of St.1980, c. 508, to provide that no hazardous waste facility may be operated unless the local board of health has determined that its operation will impose "no significantly greater danger to the public health or public safety from fire, explosion, pollution, discharge of hazardous substances, or other construction or operational factors than the dangers that currently exist in the conduct and operation of other industrial and commercial enterprises in the commonwealth not engaged in the treatment, processing or disposal of hazardous waste, but utilizing processes that are comparable." Any person aggrieved by the board of health action may appeal its decision to the Superior Court.

The Legislature's desire to decrease local resistance to hazardous waste facilities was accompanied by a determination not to permit towns and cities to exclude such facilities from within their borders altogether. Statute 1980, c. 508, § 5, amended G.L. c. 40A, § 9, to provide that a hazardous waste facility "shall be permitted to be constructed as of right on any locus presently zoned for industrial use" if the required licenses, permits, and siting agreement are present. Furthermore, following the submission of a notice of intent "a city or town may not adopt any zoning change which would exclude the facility from the locus specified in said notice of intent." G.L. c. 40A, § 9, as amended through St.1980, c. 508, § 5. This preclusion of zoning changes is similar in effect to a provision in the Siting Act relating to licenses and permits: "No license or permit granted by a city or town shall be required for a hazardous waste facility which was not required on or before the effective date of this chapter by said city or town." G.L. c. 21D, § 16. In short, the Legislature sought, by means of St.1980, c. 508, to facilitate the siting of safe facilities for the disposal and treatment of the wastes generated by schools, hospitals, government, and industry in Massachusetts by denying municipalities the right to veto facilities outright. In return, however, the Legislature established a means of...