5 ELR 20712 | Environmental Law Reporter | copyright © 1975 | All rights reserved


Bicknell v. City of Boston

Civ. A. No. 1110 (Mass. Super. Ct. August 1, 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

[5 ELR 20713]

Hallisey, J.:

DECISION

(Enforcement of Order)

This is an action by the Commissioner of the Massachusetts Department of Public Health seeking (1) to enforce an Order by that Department, issued March 7, 1973, amended July 13, 1973, and made final December 20, 1973, pursuant to G.L. Chapter 111, § 142A et seq., and regulations promulgated thereunder, particularly regulation 2.5, or in the alternative (2) to restrain defendant from violating the statute and regulations, particularly regulation 6.2.1 and regulations 8.1.3 and 8.1.5, both concerning the municipal incinerator operated by defendant at 70 South Bay Avenue, Boston.

Pursuant to Massachusetts Rules of Civil Procedure 42(b), the court ordered that Issue (1) be tried first and separately from Issue (2).

JURISDICTION

This court has jurisdiction to enforce Orders of the Department pursuant to G.L. 111, § 142B.

FINDINGS OF FACT

Defendant in its answer admitted all relevant allegations of the complaint, except that it denied that its operation of the incinerator in question was likely to pollute the air (par. 10); that it had not complied with the Order (par. 27); that it was violating regulation 2.5 (par. 28); that the incinerator was harmful to the citizens (par. 33).

In its response to plaintiff's Notice to Admit Facts defendant admitted the following: that the incinerator is 2,000 feet from Boston City Hospital (No. 5) and 800 feet from the New Boston Food Market (No. 6); that by letter dated, September 12, 1972, plaintiff sent a compliance format to the defendant (No. 8); that by letter dated October 26, 1972, defendant submitted a compliance schedule reflecting installation of a new incineratory by June, 1976 (No. 10); that regulation 2.5 of plaintiff requires compliance with regulatory emission limitations by July 31, 1975 (No. 12); that by letter dated November 5, 1973, plaintiff informed defendant that it was in violation of the first increment of the ordered compliance schedule (No. 14); that the incinerator handless 463 tons of waste each weekday (No. 17); that the incinerator in question is presently operating without any air pollution control equipment (No. 26).

In addition to the facts established by the pleadings, the parties filed an Agreed Statement of Facts (Exhibit 3), which is incorporated herein by reference. There was also testimony and argument from which the court makes the following additional Findings of Fact:

1. The incinerator in question is located at 70 South Bay Avenue, in a heavily populated part of the City of Boston. It is within 2,000 feet of the Boston City Hospital and 800 feet of the New Boston Food Market. It operates six furnaces, discharging through three chimneys. It operates on a batch-fed or single-charge method, the oldest of the several presently known methods of burning rubbish. By this method the furnaces are charged once and the contents burned to ashes before recharging.

2. There are now known and available two continuously-fed, different and better methods for incineration. The first employs a moving grant; the second, a method whereby the rubbish is chopped into small particles and blown into the furnace, similar to a powdered-coal-fired furnace.

3. The incinerator burns 75,000 pounds of rubbish per hour, or 463 tons per weekday, or 143,000 tons per year.

4. In connection with the promulgation by plaintiff of its original regulations in June, 1972, forms were sent to various sources of air pollution, inquiring whether they were in compliance. Defendant, through its managing agent, the Commissioner of the Department of Public Works, returned the form by letter dated, October 26, 1972 (Exhibit 4), stating that the applicable emission limitation was not being achieved and would not be achieved by January 31, 1974.

5. Since October of 1972 no air pollution control devices have been installed in the incinerator; and it still does not comply with the emission limitations.

6. Regulation 2 gives plaintiff authority to order noncomplying sources to submit proposed plans and schedules for compliance, such compliance to be achieved no later than July 31, 1975.

7. Pursuant to the regulations plaintiff, after conferring with defendant, entered an Order, dated March 7, 1973 (Exhibit 9), setting forth a schedule of compliance, as follows:

Submittal of plans and specifications, September 30, 1973;

Ordering of equipment, December 31, 1973;

Initiate construction, June 30, 1974;

Operational, June 30, 1975;

Achieve compliance, July 31, 1975.

The Order directed defendant's attention to regulation 51.1, which provides for administrative hearing pursuant to the State Administrative Procedure Act, G.L. 30A.

8. The defendant requested such a hearing; and the same was conducted April 23, 1973.

As a result of such hearing the plaintiff revised the schedule, as follows:

Submittal of plans, September 30, 1973;

Ordering of equipment, April 1, 1974;

Initiate construction, October 1, 1974;

Operational, July 31, 1975;

Achieve compliance, July 31, 1975.

(See Agreed Statement of Facts, Exhibit 3, paragraph 19.)

9. The foregoing Order was made final December 20, 1973 (Exhibit 3, paragraph 23).

10. The defendant did not seek a judicial review of this Order, as permitted by G.L. Chapter 30A (Exhibit 3, paragraph 27).

11. Defendant has, in spite of its representations of October 1972, to expedite placing a new plant in operation (Exhibit 4), done nothing to comply with the Order made final in December, 1973, and has not complied with any of the scheduled increments set forth therein.

ISSUES

I. Whether the defendant's failure to seek judicial review of the department's order under G.L. c. 30A forecloses consideration of any issue other than jurisdiction in the present enforcement proceeing.

II. Whether the plaintiff had power to issue an order to the defendant consistent of a compliance schedule or whether the plaintiff could only order the defendant "to stop and abate" under G.L. c. 111, § 142D, or to "cease and desist" under § 142E.

III. If the plaintiff could issue an order with a compliance schedule, whether such order could validly be issued without first performing a so-called "stack test" as allegedly required by regulation 2.5.3.

DISCUSSION

I. Scope of Review

The defendant in this case is aggrieved by an order issued by the Department of Public Health under G.L. c. 111, § 142A-E. The order was issued on March 7, 1973, amended July 13, 1973, and made final on December 20, 1973. The defendant had a right under G.L. c. 30A to appeal that decision to the superior court, and, in fact, the defendant was notified of this right to judicial review. Instead of exercising that right, however, the defendant waited, and has now tried to challenge the validity of the department's order in an enforcement proceeding.

In Director of the Decision of Water Pollution Control v. Town of Uxbridge, Mass. Adv. Sh. (1973) 765, while enforcing an order under a strikingly similar statutory scheme, the court held:

A petition for review must be filed within thirty days after receipt of notice of the final decision of the division. G.L. c. 30A, § 14(1). Since the town did not seek review within the time allowed, the only issue before the Superior Court was whether the administrative decision was within the agency's jurisdiction. Id., 768.

Similarly, in Commissioner of Public Health v. Board of Health of Tewksbury, 350 Mass. 507, 508 (1966), the court agreed with the plaintiff that, where the defendant had failed to seek jurisdical review under G.L. c. 30A of an order closing the municipal dump, the only issue in the subsequent enforcement proceeding was "whether the administrative decision concerning the dump was within the agency's [5 ELR 20714] jurisdiction." See also Department of Public Welfare v. Billerica, 350 Mass. 56, 57 (1966) ("The record suggests no reason why the town, through its board of public welfare, should not either have complied promptly with the decision or have sought review under G.L. c. 30A.");1 Duarto v. Commissioner of Public Welfare, Mass. Adv. Sh. (1971) 999, 1002-1003.

There is no apparent reason why these authorities should not control the present situation. Indeed, G.L. c. 111, § 142B specifies that all of the department's "orders, permits, or other determinations . . . shall be subject to judicial review as provided in chapter thirty A." The clear intent of this statute and the entire statutory scheme for administrative procedure and review in this Commonwealth is to require those parties who are aggrieved of agency action to press their claims promptly so that after 30 days administrators may proceed to enforce their regulations and orders without facing unexpected delays.

For these reasons the only question properly before this court is whether the order sought to be enforced was within the issuing agency's jurisdiction. As the incinerator is an "air contamination source" within and under the control of the City of Boston, the department has jurisdiction to issue an order "to stop and abate" any violations of the department's rules and regulations by the City in the operation of said incinerator.

II. Power to Issue Order with a Compliance Schedule

G.L. c. 111, § 142B authorizes the issuance of orders "to stop and abate violation of any rules and regulations" adopted pursuant to G.L. c. 111, § 142A-B and of any standards adopted pursuant to G.L. c. 111, § 142D. The court is of the opinion that this authorizes the issuance of an order with a compliance schedule.

The plain meaning of "abate" is "to reduce in amount, number, degree, intensity." See Webster's Dictionary. Thus, the power to order a party "to stop or abate" a violation encompasses the power to order one to either stop or reduce its violation. Such a power implicitly includes, therefore, the power to order a compliance schedule. Moreover, a grant of power to a board or agency includes those unspecified powers that appear to be a "necessary incident" of the granted power. Cf., School Committee of Springfield v. Board of Education, Mass. Adv. Sh. (1972) 1543, 1556. This is especially true where the statutory scheme is remedial in nature, C. Sands, Sutherland Statutory Construction, § 60.01 (1974), or where the statute is enacted to protect the public health, Id., § 71.02. See also Ralston v. Commissioner of Agriculture, 334 Mass. 51, 57 (1956).

Finally, when the state's statutory scheme is seen in light of the larger federal regulatory scheme, it is clear that the state's role includes planning as well as enforcement. 42 U.S.C. §§ 1857c-5 ff; see also J. Miller, Environmental Law, 1972 Annual Survey of Massachusetts Laws 578.

III. Whether a Stack-Test Must Precede on Order

The defendant contends that the department's order is unenforceable because it was issued in violation of regulation 2.5.3, which defendant argues requires that a so-called "stack test" be performed before the issuance of any order under G.L. c. 111, § 142B. The court disagrees with this interpretation of 2.5.3 and holds that the order was not issued inviolation of that regulation.

A. The Regulation and Its Background

Regulation 2.5.3 (Exhibit No. 1), effective June 7, 1973, reads as follows:

No person owning, leasing, or controlling the operation of any incinerator facility shall cause, suffer, allow, or permit emissions therefrom in excess of those emission limitations set forth in the following tables and within the time schedules specified in Regulation 2.5.

EMISSION LIMITATIONS

Particulates*2*Emission Limitations (grains/SCF)
Incinerator Type*2*at 12% CO2
NewExisting
municipal.05.10
commercial, industrial
residential.10.10
Any emission testing to be compared to these limitations must be conducted under isokinetic sampling conditions and in accordance with the method described by Subpart E — "Standards of Performance for Incinerators" as specified in the Federal Register, Volume 36, No. 247, December 23, 1971, or by another method which has been correlated to the above method to the satisfaction of the Department of Public Health.

The original regulation 2.5.3, published May 12, 1972 (Exhibit 2), contained a regulation 2.5.3 identical to the amended regulation but for the definition of "critical areas of concern," which included the City of Boston, and the reference to "Method 5," instead of "Subpart E: Standards of Performance for Incinerators."

It is the function of the court to interpret regulations, giving some weight to the interpretation of a technical regulation by a department expert in the area and responsible for its administration. See Davis, Administrative Law Treatise, § 30.12 (1958). Cf., Devlin v. Commissioner of Corrections, Mass. Adv. Sh. (1973) 1601; Cleary v. Cardullo's, Inc., 344 Mass. 334 (1964); Collector of Taxes of Boston v. Cigarette Service Co., 325 Mass. 162 (1950). The court, therefore, heard evidence pertaining to the technical aspects of the regulation in order to facilitate its interpretation, and now makes the following subsidiary findings:

1. "Isokinetic sampling conditions" means testing the gases in a stack under conditions whereby the test sample would be substantially identical in temperature, volume and speed as the emissions from the top of the stack.

2. The Federal Register, Volume 36, No. 237, of December 23, 1971 (Exhibit 10), on page 24,880, contains subpart E, which refers to Method 5, which is described on page 24,888.

3. In substance, regulation 2.5.3 prohibits the emission by a municipal incinerator of the type in question more than .10 grains of particulates, per standard cubic foot [SCF] of gas containing 12 percent CO2.

4. There are 7,000 grains in a pound. The standard cubic foot is defined by reference to standard temperature and pressure. The 12 percent CO2 is the usual content of CO2 in gaseous discharges from rubbish burning and was included in the formula to prevent one seeking to distory any test results by adding to the gaseous discharge large quantities of air.

5. Prior to the development by the Environmental Protection Agency (EPA) of Method 5, the American Society of Mechanical Engineers had developed a stack testing technique whereby samples of gaseous discharge from an incinerator stack were captured and measured for their particulate content. The method was found to have some inaccuracies.

6. EPA Method 5, the most precise method yet developed, consists of a device whereby samples of gas are taken from a stack, captured in various traps, and finally measured by gauges.

7. Such sophisticated testing is necessary when a stack is close to the borderline of compliance.

8. There are other techniques of testing whether or not an incineator stack is in compliance by less sophisticated methods. One other numerical method is by calculation based on an EPA publication, relied upon by experts in the field, known as AP42, which has been prepared from a series of observations by EPA.It is, in substance, a table of empirically observed correlations.

9. The incinerator in question, by such calculations, would produce 30 pounds of particulates, per ton of material burned, for a total of 1,950 tons of particulates annually. Converting this to grains [5 ELR 20715] per SCF at 12 percent CO2, would yield 1.5, or 15 times the maximum allowed by the regulations.

10. If relevant, the court infers, separately and independently, that the Department has found such calculation methods to have been correlated to EPA Method 5, with sufficient reliability.

11. The court finds that the calculation method cannot vary from the test method by more than a factor of three. Therefore, in this case the court, if relevant, infers that a test before the issuance of the order, or now, would show emissions of not less than .5 grains per SCF, or five times the allowable maximum.

12. There are other cruder techniques, the most primitive being the Ringelman Scale of opacity. This is essentially a series of shaded, grey-black tables that are visually compared with the emissions from a stack and have been correlated with the table of grains per SCF mentioned above.

13. Regulation 6.2.1 prohibits emission higher than No. 1 of such Scale, which is equivalent to particulate contend above the .1 grain maximum.

14. Plaintiff observed violations of Regulation 6.2.1 on a substantial number of occasions commencing in 1970 and continuing through June 19, 1975 (Exhibit 3, PP2, 4, 5, 11).

15. Finally, there is a technology developed in the field from which those expert therein, by examining grossly the input to an incinerator, the presence, if any, of air pollution control devices and evaluating their sophistication and efficiency, can make rough judgments as to the extent of compliance.

B. Interpretation of the Regulation

The court does not interpret regulation 2.5.3 as requiring a "stack test" before an order may be issued by the plaintiff.

Courts are to construe statutes and regulations in accordance with the plain meaning of the language, taken in context, with a view to achieving the object of the statute or regulation. See Johnson's Case, 318 Mass. 741, 747 (1945); Baker v. Chisholm, 268 Mass. 1, 6 (1929); Milton v. Metropolitan District Commission, 342 Mass. 222, 227 (1961); C. Sands, Sutherland Statutory Construction, §§ 46.01 ff (1974).

The plain meaning of the words of regulation 2.5.3 are that any testing to be done must be done by Method 5 or a method which the Department is reasonably satisfied is the equivalent. The language on its face nowhere makes any form of testing mandatory.

Read in the context of the statute and the regulations the same meaning emerges: nowhere are tests required. Regulation 8.2.3, dealing expressly with municipal incinerators, states merely that tests (if to be performed) shall be done as set forth in regulation 2.5.3.

Regulation 13, dealing with the subject of stack testing, reads: "13.1 Any person having control of a facility for which the Department has determined that stack testing is necessary to ascertain compliance . . . shall be conducted as set forth." This regulation makes it abundantly clear that the Department has discretion to determine whether stack testing is necessary. See also 1972 Annual Survey of Mass. Law, 597. If the Department decides that stack testing is required, it may order it to be done by the source, regulation 13.1, or may do it itself with cooperation of the source, regulation 13.2. If done by the source, it is at the expense of the source.

The cost to so test the stacks in question would have approached $40,000. The clear intent of the regulation is rather to engage in such testing only i those cases where there is no other way to determine the compliance or noncompliance of a particular source. In this case all the evidence indicates that with respect to the Boston incinerator no test was needed.

SUMMARY

The court has concluded that the order was issued by the department acting within its jurisdiction and that the order was within the power of the department and was not issued in violation of departmental regulations. The order is, therefore, valid and enforceable.

The question arises, however, whether or not the court has any power to extend the deadline for compliance, and, if it does, whether it should exercise that power. Given the fact that the deadline (July 31, 1975) is established by federal law, the court has serious doubts about its authority to extend the time for compliance. See Natural Resources Defense Council v. Environmental Protection Agency, 478 F.2d 875 (1st Cir. 1973); 1974 Annual Survey of Mass. Law. "Air Pollution Control" § 18.17. However, even if the court has discretion to extend the timetable, for reasons set out in the Opinion on the second half of this case, the court has concluded that no extension should be granted.

ORDER FOR JUDGMENT

Judgment should be entered finding that the plaintiff's Order of March 3, 1973, as amended July 13, 1973, and made final December 20, 1973, to be a valid, binding and enforceable Order with which the defendant must comply and that unless and until such Order is complied with the incinerator located at 70 South Bay Avenue, Boston, shall not be used for any burning of refuse whatsoever.

DECISION

(Restraint of Violations)

The court having previously made a decison in connection with the first issue in this case, (the enforceability of plaintiff's order), it now turns to the second issue, restraint of violations by defendant of rules and regulations.

JURISDICTION

The court has jurisdiction to restrain violations of plaintiff's rules and regulations, pursuant to G.L. c. 111, § 142B.

THE REGULATIONS

Plaintiff alleges that defendant is guilty of violations of the following regulations:

Regulation 1. General Regulations to Prevent Air Pollution

1.1 No person owning, leasing, or controlling the operation of any air contamination source shall willfully, negligently, or through failure to provide necessary equipment or to take necessary precautions permit any emission from said air contamination source or sources of such quantities of air contaminants which will cause, by themselves or in conjunction with other air contaminants, a condition of air pollution.

The Definitions contain the following:

5. AIR POLLUTION means the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to:

a. cause a nuisance;

b. be injurious, or be on the basis of current information, potentially injurious to human or animal life, to vegetation, or to property; or

c. unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business.

REGULATION 6.2.1 No person shall cause, suffer, allow, or permit the emission of smoke, from any incinerator, which has a shade, density, or appearance equal to or greater than No. 1 of the Chart at any time.

DEFINITION 8. CHART means the Ringelmann Scale for granding the density of smoke, as published by the United States Bureau of Mines and as referred to in the Bureau of Mines Information Circular No. 8333, or any smoke inspection guide approved by the Department.

REGULATION 8.1.3 No person shall cause, suffer, allow or permit the burning of refuse or any other material in any incinerator in a manner that is not in conformance with a Standard Operating Procedure (for the incinerator) that has been approved by the Department in writing.

REGULATION 8.1.5 No person shall cause, suffer, allow, or permit the burning of refuse or any other material in an incinerator at a specific site location that, in the opinion of the Department, is likely to cause or contribute to a condition of air pollution and when the person responsible for the operation of the incinerator has been notified of said opinion.

REGULATION 8.2.2. No person shall cause, suffer, allow or permit the operation of a municipal incinerator unless said incinerator has complied with the provisions of Regulation 2.

FINDINGS OF FACT

The court includes herein and adopts by this reference all findings of fact in its first decision, (on the enforceability of the order), [5 ELR 20716] however denominated and wherever appearing. After taking further evidence, the court makes the following findings of fact:

1. The incinerator in question causes a substantial quantity of fly ash to fall on the neighborhood within several miles of the incinerator; the heaviest concentration being some distance to the east. See Exhibits 30 and 32.

2. Eight hundred (800) feet to the east of the incinerator lies the New Boston Food Market, a wholesale meat terminal occupying sixteen (16) acres, with nine (9) buildings and twenty-eight (28) tenants, operated as a condominium. Substantial quantities of particulates fall in this area (testimony of Cook, Exhibits 14 and 15), clogging cooler condensers and falling on meat which is beingtransported from trailer trucks into the processing plants.

3. The court infers that other residences and businesses within several miles of the incinerator, particularly to the east, suffer similar particulate fall-outs.

4. The court takes note that particulate fall-out is a serious threat to health. (See Exhibit 26, deposition of Dr. Ferris and its exhibits).

5. The court finds that the foregoing constitutes a nuisance, is injurious to human life and property, and unreasonably interferes with the comfortable enjoyment of life and property or the conduct of a business, and consequently is "air pollution" as defined in Definition 5, and a violation of Regulation No. 1.

6. Defendants in its answer to Notice to Admit filed April 25, 1975, paragraph 28, admitted that:

there are visible emissions from the South Bay Incinerator in excess of the limitations contained in Regulation 6.2.1 of the Regulations for the Control of Air Pollution in the Metropolitan Boston Air Pollution Control District.

7. Since defendant's public works Commissioner Casazza admitted that the incinerator is still operating without any pollution controls whatever, the court infers that there are still emissions in excess of the limitations of Regulations 6.2.1, and the incinerators is consequently in violation of that regulation.

8. Commissioner Casazza admitted that the incinerator had never received from the Department of Public Health approval of a standard operating plan. The court consequently finds that the incinerator is in violation of Regulation 8.1.3.

9. The numerous series of notices by plaintiff to defendant of violations of Regulation 6 dating back to October 20, 1969 constitute notice as set forth in Regulation 8.1.5. The court therefore finds the incinerator to be in violation of Regulation 8.1.5.

10. The court has already found, in its earlier decision on the enforceability of the order, that the incinerator in question fails to comply with Regulation 2. Such a finding constitutes a violation of Regulation 8.2.2.

FURTHER FINDINGS OF FACT ON THE ISSUE OF REMEDY

Being of the view that the court might have some discretion in connection with restraining the foregoing violations, that the issues might conceivably fall in the area of the former equity practice whereby the court might weigh relative hardships and in anticipation of a motion in this or a higher court for a stay of any injunctive relief pending appeal, the court received evidence of the possible resolutions of the problem of the incinerator, and possible alternative disposal of the solid waste presently being burnt there.

The court, on this aspect of the case, makes the following further findings of fact:

1.That there are available to defendant alternative methods of disposal of the solid waste now being burned at the incinerator in question. That defendant can immediately take advantage of one or more of them. And others will be available in the near future.

2. Defendant maintained that the only solution was the construction of a modern, sophisticated incinerator which would generate steam which could be sold to the Boston Edison Company. The projected cost is over thirty million ($30,000,000). The City hoped that the facility would be constructed by private enterprise, but could not be brought on line in less than three years. There was no evidence that defendant had taken any steps to attempt to interest private enterprise in such a costly project.

3. Apparently anticipating the need for alternative methods of disposal, the City, in March, 1975 advertised for bids on alternative disposal methods. The bids were opened April 17, 1975.The area of the City now being serviced by the incinerator was described in Items 12 and 13 of the bid documents. (See Exhibit 22, affidavit of Casazza).

4. Four bids were received from S.C.A. Contractors (Exhibit 16); Joseph Amara Clean Communities Corp. (Exhibit 17); Refuse Energy Systems Co. (Exhibit 18); Browning Ferris Co. (Exhibit 19); and another bid by Joseph Amara Clean Communities Corp. (Exhibit 20).

5. Refuse Energy Systems. Co. ("RESCO") bid on both Items 12 and 13. They are in the process of constructing a sophisticated incinerator steam generating plant in Saugus, which will be operable by October 1, 1975, with a capacity of 1,200 tons per day. They have now contracted with other communities for 500 tons per day. Therefore, they could accommodate the City's 465 tons (+/-) now going to the incinerator. Their principal officer, Mr. DeMatteo, testified that they would bid again if so asked by defendant, and the court infers that their bid would be about the same.

Pending bringing the new sophisticated plant on steam, they have land fill capabilities adjacent to the site.

The City approved RESCO on April 30, 1975, with conditions which are not insuperable. (Exhibit 21).

6. Joseph Amara Clean Communities Corp. ("Clean Communities") operates a sanitary land fill operation in Plainville, Massachusetts, which will be operable August 10, 1975. It has remaining capacity to 750 tons per day, and consequently could accomodate the City's solid waste.

In its bid, Exhibits 17 and 20, Clean Communities did not bid on Item 13, but the court infers that they could be persuaded so to do.

The approval of its location by the Department of Public Health pursuant to G.L. 111, § 150A, is conditional but the court infers that they will achieve full approval in time to open August 10, 1975.

The principal drawback of Clean Communities is that it is in excess of thirty (30) miles from the location of the incinerator. However, the court infers that it would be possible for a transfer station to be created and large hauling trucks could make the passage from Boston to the location via the Southeast Expressway, Routes 128, 95 and 495.

The City's objection to Clean Communities, in addition to distance, and additional expense, was speculation that the local residents would picket or otherwise attempt to block the trucks. The court finds these objections to be considerably over-stated.

7. SCA Disposal has locations of sanitary land fill operations in Amesbury, some 42 miles north of Boston; and Berkeley, about the same distance south. They bid on both Items 12 and 13. They plan eventually a transfer station in South Boston on foru (4) acres which they have under lease in an industrial zone. This would take probably two to three months to construct. However, meanwhile, they have arrangements with Reclamation Company in Cambridge for transfer operations with compactors or bailers. They have the capacity to handle the material now going to the incinerator in question.

8. There is land fill facility in Canton, 15.2 miles south of Boston. (See Exhibit 24, second letter, page 8).

9. Finally, the City presently operates a sanitary land fill operation at Gardner Street in West Roxbury on ninety-three (93) acres. In its response to Notice to Admit, paragraph 21, the City admitted that if the material now going to the incinerator in question were taken to Gardner Street, its capacity would be exhausted by November, 1977, as compared with the present scheme by which it would last to August, 1978. Presently, when there is trouble at the incinerator in question, on about forty (40) days a year, the solid waste is taken to Gardner Street.

10. The defendant's objection to this alternative is that the neighbors have expressed resistance in 1971 and 1973; that the City administration opposes further use of Gardner Street; and that the mayor has promised the residents to shut down the whole operation as soon as possible, Exhibit 33.

11. Further, the City claims that further use of Gardner Street would cause pollution to the Charles River. However, a study made by Metcalf and Eddy, at the request of the City, refuted this contention. See Exhibit 25, Conclusion No. 2.

12. The City also alleged that the Gardner Street land fill process was creating gas and leachates, but there was no evidence of the same, and the Metcalf and Eddy report, Exhibit 25, did not confirm [5 ELR 20717] that this was a problem.

13. On January 27, 1975, defendant represented to the federal EPA that this location had a capacity to November, 1977, see Exhibit 24, page 4, at an additional cost of $1,577,000; Exhibit 24, page 9.

14. Commissioner Casazza said he may be able to get an additional one million dollars ($1,000,000), but has projected additional expenses as high as $3.3 million, Exhibit 22. The court is of the view that these projections are considerably over-stated, compare Exhibit 24.

15. The court infers that if the City were ordered to abandon the incinerator it could promptly make alternative arrangements, albeit, at increased costs.

16. The court does not believe that this is a situation of impossibility, or extreme hardship, involving one who has made and is making good faith efforts to comply with the law.

17. On the contrary, the overall picture in this case shows considerable foot-dragging by the City.

18. As early as October 20, 1969, the defendant was ordered to stop violating the regulations, see Exhibit 3.

19. On May 10, 1971 the City proposed making changes in the incinerator which would have reducted the fly ash by 80 percent, and, presumably, other particulate fall-outs by the same proportion.Since calculations indicate that the particulate discharge from the facility is 1.5 grains, the 80 percent reduction would still result in .12, over the permissible maximum.

20. On October 26, 1972 defendant submitted a proposal to bring the incinerator in compliance by June, 1976. Defendant then knew that the national deadline was July 31, 1975. At the same time, it admitted that it was in non-compliance, Exhibit 4.

21. In 1972 it received notices from the Department of Public Health of shortcomings at the Gardner Street location, but did not submit new proposals until the summer of 1974, which were rejected, and did not re-submit until July 15, 1975, a week before this trial began. (Testimony of Anderson).

22. On receipt of the March 7, 1973 order from plaintiff, the City was late in its March 28, 1973 request for a hearing. See Regulation 5.1.1, Exhibit 2 and Exhibit 3.

23. By January, 1975, defendant had made no progress toward the creation of a transfer station, see Exhibit 24.

24. Only in March, 1975 did defendant seek bids for alternative disposal of the solid waste now going to the incinerator, Exhibit 3, and opened such bids April 15, 1975, Exhibit 3.

25. On March 4, 1975 defendant admitted that the only emission controls located in the incinerator was a "whirler cyclone," which was "not operating," Exhibit 29.

26. On the eve of trial, defendant retained a Mr. Morgenstern to make a study which was received July 15, 1975 and intended to show that the incinerator was contributing only 2.2 to the particulate fall-out in the area, Exhibit 32.

27. The pattern is one of indifference and delay bordering on almost deliberate flouting of the law and does not commend itself to lenient treatment.

THE LAW

Defendant's activities constitute a nuisance. Gilbert v. Thierry, 319 Mass. 492, 66 N.E. 2nd 712. May Lenari v. Town of Kingston, 342 Mass. 705.

The fact that a polluting source may be contributiong only a small amount to the total pollution picture is not a relevant consideration, City of Miami v. City of Coral Gable, 233 South 2d. 7; 1 ERC 1184.

There is no balancing of equities where a polluter is creating a public nuisance and a danger to public health. Magnolia Petroleur Co. v. State, 218 S.W.2d 855.

A city cannot plead poverty as a defense to a pollution charge, Cilly v. City of Cincinnati, Hamilton District Court, Ohio, Volume II, Ohio Decisions 344; State ex rel. Harris v. City of Lakeland, 141 Fla. 795, 797 (1940).

The only defense open to a city is that the remedy is impossible as a practical matter, Cilly, supra. Such is not the case here. If the City is faced with appropriation or bidding problems, relief may be sought under G.L. c. 44, § 31 and G.L. c. 40, § 4B, this situation being one involving the health of the people of the city.See also Commonwealth v. Hudson, 315 Mass. 335.

ORDER FOR JUDGMENT

The defendant is restrained and enjoined from the further operation of the incinerator in question in violation of the foregoing regulations.

The court exercises its discretion not to postpone the effective date of this order.

1. Defendant's reliance on the statutory authority for orders, found in G.L. 111, § 150A, as a basis for distinguishing, Commissioner of Public Health v. Board of Health of Tewksbury, 350 Mass. 507 (1966), is without basis, since the paragraph granting such authority was not in § 150A at the time the case was decided.


5 ELR 20712 | Environmental Law Reporter | copyright © 1975 | All rights reserved