Wood Waste of Boston, Inc. v. Bd. of Health of Everett, P-1042

• Decision Date: 12 February 2001
• Docket Number: P-1042
• Citation: 52 Mass. App. Ct. 330,753 N.E.2d 833
• Court: Appeals Court of Massachusetts
• Parties: (Mass.App.Ct. 2001) WOOD WASTE OF BOSTON, INC. vs. BOARD OF HEALTH OF EVERETT 99-

753 N.E.2d 833 (Mass.App.Ct. 2001)

WOOD WASTE OF BOSTON, INC. vs. BOARD OF HEALTH OF EVERETT

99-P-1042

Massachusett Court of Appeals

February 12, 2001

August 24, 2001

County: Middlesex.

Present: Jacobs, Kaplan, & Duffly, JJ

Solid Waste Management. Municipal Corporations, Board of health. Department of Environmental Protection.

Civil action commenced in the Superior Court Department on May 3, 1996.

The case was heard by Martha B. Sosman, J., on a motion for judgment on the pleadings.

John W. Giorgio & Christopher J. Pollart for the defendant, submitted a brief.

JACOBS, J.

The Board of Health of Everett (board) appeals from a Superior Court judgment ordering it to issue a site assignment requested by Wood Waste of Boston, Inc. (Wood Waste), under G. L. c. 111, § 150A. We affirm.

Background. In 1993, Wood Waste, which owns and operates a facility on a site in Everett for processing of construction and demolition waste materials, applied to the board and the Department of Environmental Protection (DEP) for a determination of site suitability under G. L. c. 111, § 150A.¹ Wood Waste's operations were at that time conducted outdoors and involved separation of the construction and demolition materials and transportation to other sites for disposal. No materials are disposed of on the Everett site. The record indicates that Wood Waste proposed to construct buildings on the site so as to enclose its operations, including temporary storage of materials, and, as noted by the judge, did not plan to expand either the types or volume of wastes handled at the facility. Simultaneously with its application, Wood Waste negotiated with DEP for an administrative consent order, which was issued in 1995, and under which Wood Waste has been allowed to continue its operations pending issuance or denial of site assignment and required permits. Prior to issuing that order, DEP reported that Wood Waste's application met the statutory and regulatory site suitability criteria under § 150A½.² After receiving the DEP report, the board held a public hearing. At the conclusion of its review, the board, in April, 1996, denied the application. Wood Waste appealed the board's decision to the Superior Court under G. L. c. 30A, § 14. A Superior Court judge, acting on the parties' cross motions for judgment on the pleadings, allowed that of Wood Waste, essentially concluding that the board had failed to apply the statutory standard of review, and had improperly denied Wood Waste's application.

Site assignment procedure. General Laws c. 111, § 150A, as amended by St. 1987, c. 584, § 16, provides that an applicant "desiring to maintain or operate a site for a new [solid waste] facility or the expansion of an existing facility" shall submit an application for site assignment to the local board of health and simultaneously provide copies to the DEP, the Commonwealth's Department of Public Health (DPH), and to the board of health of any municipality within one-half mile of the proposed site. Within sixty days the DEP must issue a report stating whether the proposed site meets the criteria established under § 150A½, and the DPH must comment on any potential impact of the site on public health and safety. If the DEP affirms in its report that the siting criteria in § 150A½ have been met, the local board must hold a public hearing within thirty days of receipt of the DEP's report, and render its decision within forty-five days of the initial hearing date.³ Any person aggrieved may appeal a board's decision under G. L. c. 30A, § 14.⁴ An applicant receiving a site assignment must subsequently obtain a permit from the DEP for the construction and operation of the facility after review of detailed operating plans and specifications.

Discussion. The board in this case principally based its denial of the application on the ground that Wood Waste failed to submit adequate information from which the board could evaluate whether certain of the siting criteria were met.⁵ It argues the judge erroneously concluded it was without discretion to deny the application on such a ground.

Section 150A provides that a local board of health "shall assign a place requested by an applicant as a site for a new facility or the expansion of an existing facility unless it makes a finding, based on the . . . siting criteria established by [§ 150A½], that the siting thereof would constitute a danger to the public health or safety or the environment."⁶ G. L. c. 111, § 150A, as amended by St. 1987, c. 584, § 16. Other than allowing the imposition of conditions, the statute provides for no other disposition of an application by a board.⁷ We, therefore, agree with the judge, who stated that the board's request for more information in order to make a determination of site suitability, "is not a 'finding' . . . and is thus not a basis on which an application may be denied."

The board also made either implicit or express findings of danger with respect to the criteria on air quality, size of the site and traffic impacts. After a detailed review of the record, the judge correctly concluded the board's findings of danger⁸ to public health, safety, or the environment, were either not supported in the record or were based upon factors to be considered in a later design and operations review procedure.⁹

The board may not reasonably claim that sufficient information was not available to it during the application process. It was presented with a substantial record prior to the deadline for its decision,¹⁰ and had an opportunity to comment on its completeness and substance.¹¹ It selected and engaged an expert to review the application and report its analysis and conclusions to the board.¹² If the board believed the evidence before it at the hearing to be lacking, it could have requested that the hearing officer ask Wood Waste to provide further evidence.¹³ See TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 13-14 (2000). An environmental impact review record, established in conformity with the Massachusetts Environmental Policy Act (MEPA), was available to the board.¹⁴ Finally, the board received the report of the DEP which determined the application met the site suitability criteria. There is no indication in the record that the board questioned the completeness of the application, or made any requests to Wood Waste for further data or information prior to its decision.¹⁵

The judge properly evaluated the record before the board as established through the public hearing and certified to her, and correctly stated that the DEP decision was to be given no particular weight.¹⁶ Unlike the DEP, a local board of health does not have the benefit of regulatory language expressly permitting it to deny an application based on a determination that it did not contain sufficient information. The board's request for further information in this case essentially ignores a record which adequately addressed each of the relevant criteria, and as the judge concluded, that record does not support findings of public danger.

While a local board of health is limited in the time in which it must make a decision, it receives an application at the same time as the DEP, and has ample opportunity to marshal the resources to conduct its review and ascertain any areas of concern where it may require further information from an applicant. Where, as in this case, the record, without the additional studies requested post-hearing by the board, is adequate for a determination under § 150A, those requests have no validity.

The present case is unlike TBI, Inc. v. Board of Health of N. Andover, supra at 14,¹⁷ where the denial of the application resulted from an applicant's failure to respond adequately during the local board's hearing to a challenge to its ability to comply with a site suitability criterion. Here the board, rather than seeking additional evidence from Wood Waste or through its own resources during the application process, impermissibly rested its decision on a purported insufficiency of information.¹⁸

Conclusion. General Laws c. 111, § 150A, requires a board, after review, to issue a site assignment unless it makes a finding that the siting would constitute a danger to the public health or safety or the environment. That finding must be supported in the record before it, and where such support is lacking, a reviewing court may, as provided in G. L. c. 30A, § 14(7), as amended by St. 1973, c. 1114, § 3, either remand the case for further proceedings before the board, or "compel any action unlawfully withheld or unreasonably delayed, if it determines that the substantial rights of any party may have been prejudiced" by an unlawful or erroneous board decision. We agree with the judge that the appropriate remedy in this case is to order the issuance of the site assignment. Compare Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966). As we have noted, the board has made no claim that it was not provided with an adequate opportunity for review, or that the statutory and regulatory procedures were inadequate, or that it was unable to marshal appropriate resources properly to review Wood Waste's application.

The board erroneously asserts that the judge's order compelling it to issue the site assignment is contrary to the board's regulatory authority to attach reasonable conditions to protect the public from threats of danger from operations at the site. Absent record evidence before the board reasonably supporting specific concerns for the environment or the health or safety of the public, a remand for the imposition of conditions is unwarranted. The judge correctly noted the site assignment in this case is "merely an interim step in a lengthy and detailed administrative process." In the circumstances of a local board's unsupported claim of insufficient information, and of danger to the public, a remand would constitute an unjustified interruption of a carefully designed and...