Posts tagged "1102814"

Theophilopoulos, et al. v. Board of Health of Salem, et al. (Lawyers Weekly No. 11-028-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     13‑P‑100                                        Appeals Court   ARTHUR THEOPHILOPOULOS & others[1]  vs.  BOARD OF HEALTH OF SALEM & another.[2] No. 13‑P‑100. Essex.     October 4, 2013.  ‑  March 18, 2014. Present:  Cypher, Katzmann, & Maldonado, JJ.     Department of Environmental Protection.  Solid Waste Management.  Municipal Corporations, Board of health.  Department of Environmental Quality Engineering.  Administrative Law, Regulations, Agency’s interpretation of regulation, Judicial review.  Statute, Construction.       Civil action commenced in the Superior Court Department on March 18, 2010.   The case was heard by Howard J. Whitehead, J., on a motion for judgment on the pleadings, and a motion for reconsideration was also heard by him.     Thomas A. Mackie for the intervener. Leonard F. Femino for the defendant. Seth Schofield, Assistant Attorney General, for the Commonwealth. Carl D. Goodman for the plaintiffs.     CYPHER, J.  The question presented for review is whether the Salem board of health (board) properly classified the joint application of the city of Salem (city) and Northside Carting, Inc. (NCI), as one for a minor modification of a site assignment.  On appeal to the Superior Court pursuant to G. L. c. 30A, § 14(7), a judge concluded that it had not, and nullified the decision of the board approving the application.[3]  We reverse. History of the site.  In June, 1960, the board assigned city-owned land in Salem for use as a refuse incineration plant (site).[4]  As was common for the time, the board did not place any capacity or volume limitations in the site assignment.  Once the incinerator was built, the city disposed of the ash on site in a landfill.  By 1968, incineration and landfilling operations had ceased.  No governmental entity at any time thereafter sought to rescind, suspend, or modify the site assignment through the imposition of conditions.   On September 9, 1975, the Department of Environmental Quality Engineering (DEQE), the predecessor agency of the Massachusetts Department of Environmental Protection (department), approved the city’s plan to construct a solid waste transfer station at the site.[5]  DEQE’S plan approval was subject to five conditions, including a weight-receipt limit of 100 tons of refuse per day.[6]   On June 3, 1994, the department approved the city’s application, pursuant to 310 Code Mass. Regs. § 19.023(3) (1992), for a permit by rule, finding that the existing transfer station met the department’s design and operations standards.[7]  See 310 Code […]

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Posted by Massachusetts Legal Resources - March 18, 2014 at 5:53 pm

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