Town of Brookline v. Commissioner of the Department of Environmental Quality Engineering

(439 N.E.2d 792, 387 Mass. 372) (Mass. September 3, 1982)

ELR Digest

The court affirms in part and remands in part three consolidated decisions of the Massachusetts Department of Environmental Quality Engineering (DEQE) approving with conditions the construction of a diesel-powered cogeneration facility. First, the court holds that a state air quality regulation proscribing emission levels that unreasonably interfere with the comfortable enjoyment of life need not contain specific emission limits to withstand a challenge of unconstitutional vagueness. The court holds that DEQE's use of adjudicatory procedures rather than rulemaking to set nitrogen dioxide emission limits for the facility was proper. Further, the court finds that the DEQE may, consistent with the cost-minimization requirement of MASS. GEN. LAWS ANN. ch. 111, § 142D, set air pollution standards stricter than the federal standards.

The court finds that DEQE erred in failing to make findings on the possible adverse health effects of carcinogenic and mutagenic substances that would be emitted from the facility. Opponents of the project raised the issue in a timely fashion, therefore DEQE should have considered the issue at the administrative hearing.

The full text of this opinion is available from ELR (16 pp. $2.50, ELR Order No. C-1296).

Counsel for Appellants
Thomas B. Bracken
Bracken & Baram
33 Mt. Vernon St., Boston MA 02108
(617) 742-4950

Counsel for Respondents
Robert W. Meserve
Palmer & Dodge
One Beacon St., Boston MA 02108
(617) 227-4400

Verne W. Vance Jr.
Foley, Hoag & Eliot
One Post Office Sq., Boston MA 02109
(617) 482-7347

Stephen M. Leonard, Ass't Attorney General
One Ashburton Place, Boston MA 02108
(617) 727-2265

Nolan, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]