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Bicknell v. Boston, City of

Citation: 5 ELR 20712
No. No. 1110, 8 ERC 1241/(Mass. Super. Ct., 08/01/1975)

The court rejects the city's attack on a state public health department order requiring a municipal incinerator to adopt a schedule for complying with applicable air pollution emission limits. As the defendant failed to seek judicial review of the order when it was adopted, the only issue before the court is whether the administrative decision was within the agency's jurisdiction. The department's statutory authority to "abate" violations empowered it to include a mandatory compliance schedule in the order. Its use of inexpensive, crude tests to measure the incinerator's emissions did not violate departmental regulations, for they expressly vest discretion in the department to select test types, and the emissions in question were many times greater than applicable limits. The court finds continued operation of the facility without any pollution controls to be a nuisance and to violate various regulations. The defendant has ignored pollution abatement orders since 1969; its record generally borders on deliberate law violation. The defendant has not established that it is impossible to find alternate ways to dispose of the trash burned in the incinerator. Effective immediately, the city is enjoined from further operation of the facility in violation of the order.

Counsel for Plaintiff
Edward J. McCormack, III Asst. Attorney General of Massachusetts
Environmental Protection Division
131 Tremont Street
Boston, Mass. 02111

Counsel for Defendant
Suzanne Delvecchio
City of Boston Law Department
City Hall
Boston, Mass. 02201