Licenses And Permits – Recycling Facility – Board Of Health – Air Quality

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Where the defendant North Andover board of health denied a plaintiff’s application for a site assignment for the construction of a recycling and solid waste transfer station, a Superior Court order upholding the board’s decision should be affirmed “based on the board’s air quality concerns and the concentration of [solid waste] facilities in the town.”

We go on to affirm the Superior Court’s decision to strike down the board’s assessment of a supplemental application fee, as the board did not follow Department of Environmental Protection regulations in assessing the supplemental fee.

Air Quality

“One of the grounds for denial of [plaintiff] TBI [Inc.]’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. Sect. 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.

“… The board reached the air quality determination pursuant to 310 Code Mass. Regs. Sect. 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. TBI argues that the plain language of 310 Code Mass. Regs. Sect. 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. Sect. 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 [G.L.c. 111,] Sect. 150A1/2 and the DEP regulations. 310 Code Mass. Regs. Sect. 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. Sect. 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. Indeed, in many cases an absolute presumption of compliance would obviate the need for a hearing because the board would not be able 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.’ … 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.

“… 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 be feasible and effective in combating the excess PM10.

“TBI contends that this decision impermissibly forces it to present detailed design and operation plans in violation of 310 Code Mass. Regs. Sect. 16.40(1)(c)(2). Because the DEP did not require TBI to produce detailed plans for pollution control, TBI argues that the board is not authorized to make such a demand. Thus, according to TBI, the board incorrectly determined that the site assignment did not comply with air quality standards because TBI could not show specific remedies for expected excess PM10.

“We conclude that the board acted within its authority in denying the site assignment because TBI failed to show an ability to comply with the EPA PM10 standard. The DEP regulation provides that ‘[t]he review of an application [by the DEP and the local board] shall not consider detailed facility designs or operations’ unless the DEP determines information is necessary to decide whether potential discharges or emissions from the proposed facility render the site unsuitable or the applicant intends to alter the site or facility and the DEP determines that specific information is necessary to determine compliance. 310 Code Mass. Regs. Sect. 16.40(1)(c)(2). Read in isolation, this regulation appears to limit the board’s consideration of operation and design plans to circumstances in which the DEP authorizes the board to consider this information. The air quality regulation, however, requires a local board to take ‘into consideration … the concentration and dispersion of emissions’ from the proposed facility. 310 Code Mass. Regs. Sect. 16.40(4)(e)(1).

“In order for the board to evaluate the emissions from the proposed facility, the board must examine information regarding its design and operation. The emissions do not exist in a vacuum. Thus, the plain language of these regulations conflicts if DEP does not authorize the board to receive information regarding emissions from the proposed facility. Indeed, strictly construed, the language of the former would prevent the board from complying with the latter. When a conflict exists, the provisions should be interpreted in a way that is harmonious and consistent with the legislative design. …

“We reject TBI’s interpretation of 310 Code Mass. Regs. Sect. 16.40(1)(c)(2). A literal reading of that regulation that only DEP can direct consideration of detailed plans for pollution control makes no sense in view of the statutory scheme. The board’s interpretation resolves the conflict by limiting receipt of detailed design and operation plans to the extent necessary to determine compliance with the air quality standard. The board’s interpretation, however, does not permit it to require information more extensive than necessary to evaluate the air quality standard. Under Sect. 150A, the board and the DEP are required to evaluate the criteria to determine whether to grant a site assignment. However, the DEP alone decides whether to grant construction and operation permits that require submission of extensive design and overation details. The board’s interpretation permits it to fulfil its statutory obligation to determine compliance with the site suitability criteria without requiring information necessary only for the DEP’s permitting function. The board’s interpretation correctly reconciles the regulations with the policy and language of the statute to establish distinct site assignment and permitting processes.”

Concentration Of Facilities

“The board applied a preference against siting the facility in the town because that municipality is already the host to a major regional disposal facility. Utilizing this preference, the board denied TBI’s application. The board relied on the DEP’s interpretation of 310 Code Mass. Regs. Sect. 16.40(4)(i) to apply this preference. The regulation provides that a local board shall give preference ‘to sites located in municipalities in which no existing … facilities are located.’ … The regulation further directs the DEP or the local board to weigh this preference against the extent to which the proposed facility will (1) meet the solid waste needs of the municipality or region and (2) incorporate recycling, composting, or waste diversion. … The DEP, in its report on TBI’s application, recognized that the regulation as written could be read as granting a preference in favor of siting a new facility in a town that does not already host a facility. However, the DEP stated that the purpose of the regulation ‘is to avoid an unreasonable concentration of disposal facilities within a single community.’ Thus, the DEP interpreted the regulation to permit the board to apply a preference against siting new facilities in a municipality that does host another facility.

“In accordance with the DEP interpretation, the board weighed this preference against the extent to which the proposed facility would meet the solid waste needs of the town and the region and incorporate recycling, composting, or waste diversion. Because the board found that these factors did not outweigh the preference against siting the facility in the town, the board denied the application.

“TBI argues that the DEP’s interpretation of its own regulation is erroneous. TBI claims that the language of 310 Code of Mass. Regs. Sect. 16.40(4)(i) creates a preference for siting a facility in a town without an existing facility but does not allow a preference against siting a facility in a town in which other facilities already exist. TBI also argues that the DEP cannot interpret its regulations to permit local boards to consider site concentrations in other communities.

“We conclude that the DEP’s interpretation of 310 Code Mass. Regs. Sect. 16.40(4)(i) and the board’s subsequent action based on that interpretation were proper. We only disturb an agency’s interpretation of its own regulation if the ‘interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.’ … The DEP’s interpretation of its regulation permitting a preference against siting a facility in a municipality that hosts existing facilities is consistent with the enabling statute, G.L.c. 111, Sect. 150A1/2. The statute authorizes the local boards and the DEP to evaluate ‘the extent to which existing solid waste disposal facilities are located within a municipality.’ … The Legislature articulated a policy against undue concentration of facilities in any particular community. The statute does not make enforcement of this policy the sole province of the DEP. At the site assignment stage, the DEP and the local board share responsibility for enforcement of the criteria in Sect. 150A1/2. … The DEP’s interpretation of the regulation is consistent with the shared responsibility for enforcing the site suitability criteria articulated in Sect. 150A.”

TBI, Inc. v. Board of Health of North Andover (Lawyers Weekly No. 10-042-00) (17 pages) (Cowin, J.) (SJC) Motions for judgment on the pleadings and for partial summary judgment heard by Richard E. Welch III, J., in Superior Court. Thomas A. Mackie and John D. Beling for the plaintiff; Kenneth L. Kimmell and Cristin L. Rothfuss for the defendant; Kevin F. O’Donnell submitted a brief for Joan Kulash and others, amici curiae (Docket No. SJC-08007).