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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 Mass. Regs. § 19.200 (1992).  The city’s application was approved subject to the 100-ton limit and five additional conditions.  The 1975 approval, as amended by the 1994 approval, constituted a permit and authorization to operate the transfer station.  Since 1994, NCI has operated the transfer station at the site as a tenant of the city, accepting primarily construction and demolition debris and wood.^[8]

In April, 2005, following months of negotiations between the department, the city, and NCI regarding the landfill closure and future modifications to the transfer station, the department conditionally approved the city’s comprehensive corrective action alternatives analysis plan.

In February, 2007, the city issued a request for proposals for the redevelopment of the site.  The city selected NCI’s proposal, one of only two received.  The high points of NCI’s proposal included the tearing down of the smoke stack and the incinerator building, the construction of a new, larger modern transfer station, the capping of the landfill, and the improvement of the internal roads on the site.  NCI also sought an increase in the daily average waste receipt limit from 100 tons to 400 tons per day, with a maximum limit of 500 tons per day (project).

Collateral administrative proceedings.  Before submitting their application to the board, the city and NCI obtained an order of conditions from the Salem Conservation Commission authorizing the work planned by NCI.  As required by  Massachusetts Environmental Policy Act (MEPA) regulations, they submitted an environmental notification form (ENF) for review by the Executive Office of Energy and Environmental Affairs (EOEEA).  See 301 Code Mass. Regs. § 11.03(9)(b)(1) (2008) (requiring such review where, as here, an increase of fifty or more tons per day in solid waste storage, treatment, or processing capacity is sought).  In connection with the ENF, the city and NCI submitted a number of expert reports showing that the project would have no significant adverse impact on air quality, noise, human health, and traffic.  After receiving a number of written comment letters, the EOEEA approved the project, issuing a certification that the MEPA process was completed and that no environmental impact report was required.^[9]  See G. L. c. 30, §§ 61-62H; 310 Code Mass. Regs. § 16.08(5)(d)(1)(c) (2001).  In the July 25, 2008, certificate, the EOEEA noted that the project would require a minor modification to the site assignment from the board and a solid waste permit from the department.

Application for a modified site assignment.  In response to the city’s request for guidance, John Carrigan, the solid waste management section chief of the department’s northeast regional office (NERO), advised the city in an electronic mail message (e-mail) that the modification sought (an increase in capacity) was a minor one “under 310 [Code Mass. Regs.] 16.00.”  Relying on that opinion, on June 23, 2009, BETA Group, Inc. (BETA) submitted to the board on behalf of the city and NCI (applicants) an application for a minor modification to the site assignment.  Following public and deliberative hearings on four separate dates in November and December, 2009, the board approved the application subject to forty-three conditions.^[10]

Statutory and regulatory history and framework.  In 1955, the Legislature first passed legislation requiring site assignments for dumping grounds and refuse disposal incinerators.  See G. L. c. 111, § 150A, inserted by St. 1955,

c. 310, § 1.  Several amendments followed over the years, extending the scope of the statute and further regulating solid waste facilities.

Through the Solid Waste Management Act, an emergency act passed in 1987 (act or statute), the Legislature addressed the severe shortage of environmentally safe and financially sound solid waste facilities in the State.^[11]  See G. L. c. 111, § 150A, as amended through St. 1987, c. 584, § 16; G. L. c. 21H, § 1(a)(2), inserted by St. 1987, c. 584, § 3; TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 11 (2000).  At this time, the Legislature instituted a two-tiered site assignment process.^[12]  See Wood Waste of Boston, Inc. v. Board of Health of Everett, 52 Mass. App. Ct. 330, 331-332 & n.1 (2001).  As herein relevant, the 1987 legislation brought expansions of existing site-assigned facilities within the ambit of the statute and established a statutory permitting process to be followed after the site assignment stage.^[13]  See G. L. c. 111, § 150A, second, tenth, eleventh pars., as amended or inserted by St. 1987,

c. 584, § 16.

Pursuant to the broad rule-making authority granted by the Legislature, the department subsequently adopted separate regulations to govern the siting of solid waste facilities and the permitting of the design, construction, operation, and closure of these facilities.^[14]  Compare 310 Code Mass. Regs. §§ 16.01-16.99, with 310 Code Mass. Regs. §§ 19.001-19.303.

To resolve lingering confusion about the process required to modify existing site assignments, a subject not covered by the statute or the regulations, the department promulgated 310 Code Mass. Regs. § 16.22 in 2001.  This regulation established special procedures for proposed major and minor modifications that do not rise to the level of statutory expansions.^[15]

The extent of process required turns on the classification of the proposed modification.  Any proposal for a “major” modification to a site assignment requires the submission of a new site assignment application to the department.  Under the truncated process permitted by the regulation, the department, in its discretion, may limit the review to those statutory criteria affected by the modification.  See 310 Code Mass. Regs. § 16.22(2); Goldberg v. Board of Health of Granby, 444 Mass. 627, 629-630 (2005).  If the applicant obtains a favorable report from the department, the statutory process for a new site assignment is followed.  See note 12, supra.

In contrast, applicants seeking a “minor” modification to the site assignment are not required to file a new application or to obtain a favorable report from the department.  See 310 Code Mass. Regs. § 16.22(3).  A local board of health may approve a minor modification as long as a public hearing on the matter is held.  The board need not consider the site suitability criteria set forth in G. L. c. 111, § 150A ½, and 310 Code Mass. Regs. § 16.40.  The Supreme Judicial Court has sanctioned the abbreviated review process for both major and minor modifications to existing site assignments.  See Goldberg v. Board of Health of Granby, 444 Mass. at 634-637; Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 562-564 (2012).

Discussion.  This appeal turns on a question of law:  whether the project is a major or minor modification to a site assignment within the meaning of 310 Code Mass. Regs. § 16.22.  If the modification is major, the project did not receive the more vigorous scrutiny required by the regulation and thus, the decision of the board was a nullity.  Our review is de novo.  See Rosing v. Teachers’ Retirement Sys., 458 Mass. 283, 290 (2010).

We start with the language of the regulation.  The modification regulation, 310 Code Mass. Regs. § 16.22, contains five sections, only two of which are relevant here to our analysis:  §§ 16.22(2) and 16.22(3).^[16]

Under § 16.22(2), four proposed modifications are deemed major:  (1) “modifications required to ‘[e]xpand a [s]ite’”;^[17] (2) “vertical expansions beyond the limits of an approved plan”; (3) modifications for an alternative use of an assigned site; and (4) “any request to waive any site assignment criterion set forth at 310 [Code Mass. Regs.] § 16.40(3).”  If the proposed modification does not fall into one of these four categories or § 16.22(1) (here inapplicable), it is deemed minor.  See 310 Code Mass. Regs. § 16.22(3).

We disagree with the judge’s conclusion that NCI’s proposal met the regulatory definition of “[e]xpand a [s]ite.”^[18]  The record establishes that no move or expansion of the 9.2-acre site assignment is contemplated.  It is also undisputed that there is no waste receipt limit stated in the current site assignment.  By its plain language, the first category of major modifications was thus inapplicable.  The judge’s importation of a weight-receipt limit into the site assignment was precluded by the regulatory text as well as the Goldberg case.^[19]

In Goldberg, the original site assignment issued by the local board “contained no limitation on the height or volume of the landfill.”  Goldberg v. Board of Health of Granby, 444 Mass. at 629.  The subsequent permit issued by the department, however, did contain a limit (approximately 1.5 million cubic yards).  See id. at 628-629.  In its original application to expand the landfill, the operator made representations about the expected maximum lifetime capacity.  In affirming the judgment of the Superior Court paving the way for the vertical addition of two million yards of new solid waste on top of the existing landfill, the SJC resisted attempts to incorporate these “unstated” conditions into the site assignment.  See id. at 628-631 & n.4.  The Goldberg case controls here, prohibiting implied conditions from being read into the board’s site assignment.

Furthermore, as discussed previously, see notes 12 and 14, supra, the site assignment and permitting processes are distinct.  The importation of a permit condition into the site assignment was contrary to the statutory and regulatory scheme.

The judge did not address the other three categories of major modifications.  We conclude that the plaintiffs failed to meet their burden of demonstrating the invalidity of the administrative determination that a minor modification was implicated by the project.  See Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. at 562.

To the extent that the plaintiffs maintain that the project falls into the second category of major modifications, a “vertical expansion” is a term generally applied to landfills, and not to transfer stations.  See 310 Code Mass. Regs. § 19.006 (defining expansion as “in the case of . . . handling facilities, an increase in the waste handling, treatment or processing capacity beyond the tonnage limits approved in the permit; and, in the case of landfills, a horizontal or vertical increase in the size of a facility beyond the horizontal or vertical limits specified or approved in the permit”).  More importantly, not only is there no evidence of the existence of any vertical limitation in an approved plan here, there is no evidence that the proposed project involves a vertical expansion.^[20]

Contrary to the plaintiffs’ assertions, the applicants did not request an alternative use of an approved site in their application.^[21]  Pursuant to DEQE’s approval of the change of use, the city began operating a transfer station in 1975 before the adoption of the site assignment regulations, 310 Code Mass. Regs. § 16.00 (1988), and more particularly, long before the 1990 regulation prohibiting, without a new site assignment, the conducting of different solid waste activities at a site assigned, as here, for a specific purpose.^[22]  See 310 Code Mass. Regs. § 16.21(1)-(2) (1990).

We can glean no express or implied intent from the text of the regulations or any other source to make the alternative use regulation retroactive.^[23]  See Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 190 (2009).  Cf. Goldberg v. Board of Health of Granby, 444 Mass. at 638-639 (refusing to apply department regulation increasing setback requirement where operator had reasonable expectation that prior regulation would apply).

Finally, the applicants made no request to waive any site assignment criteria.  By operation of 310 Code Mass. Regs. § 16.22(3), the proposed project therefore was deemed a minor modification to a site assignment.^[24]

Our interpretation comports with the two opinions of the department secured by the board.  “An agency’s interpretation of its own regulations is entitled to ‘considerable deference’ and must be upheld unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.”  Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 794 (2013), quoting from Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991).

Here, the judge improperly refused to give any weight to the advisory opinion of John Carrigan, the solid waste management chief of NERO, because the basis of the opinion was unclear to the judge.^[25]  While Carrigan’s brief e-mail did not elaborate on the parties’ previous discussions, the record established that Carrigan, a high ranking department official, had extensive knowledge of the site and the proposed project.  As the solid waste management chief, not only did he participate in a number of planning meetings regarding the closing of the landfill and the future of the transfer station, he approved the city’s comprehensive corrective action alternatives analysis with respect to the site.  NERO also submitted a comment letter regarding the proposed project during the MEPA review and received a copy of the certificate of compliance.

The department’s site assignment regulations are technical, complicated, and far from clear.  As expressly permitted by the statute, the city sought guidance from the department concerning several aspects of the process, including the major versus minor dichotomy.  The board was entitled to rely on the department’s expertise and interpretation of its own regulations.  See Goldberg v. Board of Health of Granby, 444 Mass. at 637.

The judge also discounted an opinion from James Doucett, the deputy director of regulatory standards in the department’s business compliance division.  Doucett indicated that if the current site assignment contains a weight-receipt limit, any proposed modification is deemed major; whereas, if the weight-receipt limit only appears in a permit, as here, the department treats a request to increase tonnage as a minor modification.^[26]  As further explained by the amicus, the department treats a waste receipt limit found in a site assignment as a local board determination that the site is only suitable for a solid waste facility up to the volume of waste specified.  Because of the importance of the limitation, the department classified any proposed change in the site assignment limit as a major modification, requiring department review and board reassessment of suitability in light of the criteria deemed relevant by the department.  On the other hand, if no tonnage limitation appears in the site assignment, the department assumes that the local board did not ascribe the same importance to the issue, and that therefore, mandatory reassessment by the department and the board of all relevant site suitability criteria would be unwarranted.

These agency interpretations were neither inconsistent with the plain language of the regulation nor irrational and should have been accorded considerable deference by the judge.  See Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010).

Admittedly, any plan to increase handling capacity fourfold sounds like a major modification.  The fact that a tonnage limit appears in one piece of paper alone would not seem to justify the distinction.  The historical context illuminates the department’s reasons for the difference in treatment.  No one would dispute that the amount of daily tonnage handled at a facility may impact public health and the environment.  Prior to the promulgation of 310 Code Mass. Regs. § 16.22 in 2001, any operator of a facility with a site assignment containing no waste-receipt limit could increase tonnage without obtaining local board approval.^[27]  See Response to Comments Summary Revisions to the Site Assignment Regulations 310 Code Mass. Regs. § 16.00, at 12 (issued by the department in June, 2001).  Since the statute was silent, the department could have maintained the status quo requiring no local board review.  Instead, responding to criticism about the loophole, the department added language to the minor modification provision of § 16.22 at the request of a local environmental group.  See Goldberg v. Board of Health of Granby, 444 Mass. at 636 n.12 (noting that “the effect of § 16.22 is to provide an opportunity for scrutiny by the board of a proposed modification that, under a different regulatory approach to the statute, might not be required at all”).

Unless limited in time, a site assignment is effective in perpetuity.  Pursuant to the 1987 legislation, local boards may not reassess prior site suitability determinations unless a potential threat to the public health, safety, or the environment is involved.  See G. L. c. 111, § 150A, twelfth par.  The department recognized that local boards assigning sites decades ago without limits may not have fully, if at all, contemplated the public health or environmental impact of increased waste receipt at the site.  By bringing the issue of site suitability back before local boards for reconsideration in light of the proposed increase in waste, the department furthered the primary purpose of the site assignment process.