Bleiler v. Wellesley

No. 104825 Equity (Mass. Super. Ct. December 23, 1971)

Town incinerator ordered to comply in 7 months with existing state regulations limiting smoke and flyash emissions in a suit filed by citizens under recently enacted state statute which permits citizens' suits to enforce laws designed to protect the environment.

Counsel for Plaintiffs
Stephen Richmond
1 State Street
Boston, Massachusetts

Counsel for Defendants
Leo J. Hesson
Town Counsel
Wellesley, Massachusetts

[2 ELR 20067]

Sullivan, J.:

This is a bill of complaint brought under the provisions of Chapter 732 of the Acts of 1971, effective September 7, 1971.

Consistent with the above-captioned act, the petitioners are "ten persons domiciled within the commonwealth." The respondent Town of Wellesley is a municipal corporation located in Norfolk County in the Commonwealth.

For approximately fifteen years, the incinerator owned and operated by the said municipality for the benefit of its citizens has been operated in such a manner as to permit excessive amounts of black smoke, soot and "flyash" to enter and to pollute the air.

After a series of complaints and, as a result, a series of warnings by the Department of Public Health, Commonwealth of Massachusetts, the town undertook to attempt to correct the deficiencies from the use and operation of the said municipal incinerator to the end that it would comply with the currently existing ecological regulations set out by the said Department of Public Health of the Commonwealth.

It appears that to this end the Town of Wellesley has to date expended $94,700 in its efforts to improve the operation of the incinerator.

Nothwithstanding the above, it is the contention of the petitioners that the incinerator has still not been updated in its operation to the point where the presently existing standards are being complied with.

Appreciating that the Town of Wellesley has taken reasonable steps to advance and improve its incinerating facilities and appreciating that the said municipality by law must submit on or after July 1, 1972, a design for an incinerator which has been approved by the Department of Public Health in accordance with its regulations for "plans approval" and understanding also that the municipality's appropriations will in all likelihood not become available until the annual town meeting of March, 1972, and hopeful that there will be an economy of the taxpayers' funds in the Town of Wellesley by virtue of future planning for the immediate needs to comply with the presently existing statutes running a parallel course with the regulation requiring total approval as of July 1, 1972, I order the interlocutory decree set out below.

This interlocutory decree also, of course, takes into consideration the rights of the persons residing in the neighborhood of the incinerator, whether these persons be residents of Wellesley or the contiguous Town of Needham, and this interlocutory decree is designed to accomplish the ecological purposes as set out in the new statute and in the appropriate regulations of the Department of Public Health.

After conferring with counsel for the Town of Wellesley and counsel for the petitioners and after hearing arguments, this matter was set for hearing forthwith before a master. The master viewed the premises and heard extensive testimony with regard to the factual situation, conducted hearings on the draft report and filed his final report on November 19, 1971. On December 20, 1971, on motion of counsel, the master's report was confirmed. Briefs were submitted to this Court, re-arguments were had and several conferences with counsel followed. Two demurrers were filed with this Court and disposed of. In addition, this Court viewed the subject incinerator and the surrounding area.

As a result of the above, I make the following order for interlocutory decree:

This cause came on to be heard at this sitting of the Court in Norfolk County and, after hearing arguments and upon consideration of all the evidence, it is hereby ORDERED, ADJUDGED AND DECREED:

1. That the Town of Wellesley take such action as is necessary to improve, modify, update, abandon or to otherwise effect the operation of its present incinerator facility to the end that by August 1, 1972, this facility shall operate in substantial compliance with the now currently existing regulations of the Department of Public Health, including but not limited to Regulation 2 (6.2.1) establishing maximum standards relating to emission of smoke, and Regulation 2 (2.8.1.1) establishing maximum standards relating to emission of "flyash."

2. This Court shall take no present action with regard to the allegations set out in the petition alleging violations of G.L. c.131, s.40 (The Hatch Act), and continues this aspect of the allegation until August 1, 1972.

Let an interlocutory decree be entered in accordance with the above.

This Justice reserves jurisdiction on this matter until a final decree has been entered or until determinative disposition of this cause has been made.