Opinion
20-P-1423
10-29-2021
BOARD OF HEALTH OF RANDOLPH & another[1] v. BOARD OF HEALTH OF HOLBROOK & another.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises out of a disagreement between the neighboring towns of Holbrook and Randolph over whether TLA-Holbrook, LLC (TLA), should be allowed to construct and operate a municipal solid waste transfer facility (facility) on a site in Holbrook that is adjacent to the Randolph town line. The board of health of Holbrook (board) made a positive determination of site suitability and granted (1) TLA's application for a site assignment and (2) TLA's request to modify the site assignment. The board of health of Randolph and the town of Randolph (collectively, Randolph) sought judicial review of both decisions in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 111, § 150A. A Superior Court judge affirmed the board's decisions. This appeal followed, and we also affirm.
Background.
TLA plans to construct and operate the facility in an industrial park on a site consisting of two parcels, an 11.17-acre lot that includes part of a Superfund site and an adjacent 3.68-acre lot. Both parcels are located on Phillips Road, which turns into Water Street and then empties onto Union Street. To the west of the four-legged intersection at Union Street and Water Street is a railroad crossing, and to the west of the railroad crossing is another four-legged intersection at Union Street, Center Street, and Mill Street.
Another portion of the site was once the location of a chemical company and needs to be remediated, which will be done as part of the development of the facility.
As proposed, the facility will include a municipal solid waste transfer building, rail yard, scale house, residential waste drop-off area, and parking areas. The facility will accept municipal solid waste six days per week -- Monday through Friday from 6 A.M- to 5:30 P.M- and Saturday from 6 A.M- to 1 P.M. -- and have a daily maximum capacity of 1, 000 tons of municipal solid waste. The waste will be delivered by truck and then transferred primarily by railroad, secondarily by truck, for disposal or recycling at locations throughout the country.
TLA submitted its application for a site assignment to the Department of Environmental Protection (DEP) in April 2017. On August 11, 2017, the DEP made a positive determination of site suitability and forwarded its report to the board for further action. In September and October 2017, the board held an eight-day public hearing on the matter, during which the board heard extensive expert testimony from both sides. On November 8, 2017, the board granted TLA's application for a site assignment, after which Randolph filed a complaint in the Superior Court seeking judicial review of the decision.
In August 2018, while the Superior Court action was pending, TLA requested a modification of the site assignment. Two aspects of that request are pertinent to this appeal. First, TLA sought to eliminate a road that would have gone around the municipal solid waste transfer building, to address concerns regarding stormwater runoff. Second, TLA sought to reconfigure the railroad tracks servicing the facility, and to place some of the tracks in the Superfund site, to minimize use of the nearby railroad crossing. Following another public hearing, which was held on six days in October through December 2018 and during which the experts again testified, the board granted TLA's request to modify the site assignment on January 2, 2019. Randolph then amended its complaint to seek judicial review of both decisions.
In a thorough decision on the parties' cross motions for judgment on the pleadings, a judge of the Superior Court affirmed the board's decisions. Randolph now appeals to this court.
We note that while TLA initially challenged Randolph's "standing" to bring this action, the parties have not briefed the issue on appeal. Nor did the parties include in the record any memoranda of law regarding standing that they filed in the Superior Court. Where the parties have not provided an adequate record for us to address the question of standing and the merits have been fully briefed, we decline to address the issue and instead turn to the merits. See, e.g., Boston Gas Co. v. Department of Pub. Utils., 368 Mass. 780, 805 (1975).
"In response to a shortage of solid waste facilities in the Commonwealth in the mid-1980's, the Legislature amended the existing process for obtaining a facility site assignment." TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 11 (2000). Under the amended statute, an applicant must first seek a site suitability determination from the DEP; if the DEP makes a positive determination of site suitability, the local board of health must make an independent determination whether the proposed site complies with criteria set forth in G. L. c. 111, § 150A 1/2, and regulations promulgated by the DEP. See TBI, Inc., supra at 11-12. The regulations require the local board of health to consider, among other criteria, traffic and access to the site, other sources of contamination or pollution, and the size of the facility. See 310 Code Mass. Regs. § 16.40(4)(b), (h), (k) (2001).
We note that the site assignment process is "just one step along a continuum of a 'carefully designed,' lengthy, and comprehensive statutory and regulatory process." Theophilopoulos v. Board of Health of Salem, 85 Mass.App.Ct. 90, 95 n.14 (2014), quoting Wood Waste of Boston, Inc. v. Board of Health of Everett, 52 Mass.App.Ct. 330, 337 (2001). Following the site assignment process, which focuses on where solid waste facilities may be situated, an applicant must also go through a permitting process, which focuses on facility design and operation. See Theophilopoulos, supra.
We may not set aside a local board of health's decision unless the challenging party -- here, Randolph -- has shown that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with the law. See G. L. c. 30A, § 14 (7); G. L. c. 111, § 150A. See also Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 562 (2012) . "'Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6). In conducting our review, we give "due weight to the experience, technical competence, and specialized knowledge of the [board], as well as to the discretionary authority conferred upon it." G. L. c. 30A, § 14. See Board of Health of Sturbridge, supra.
1. Traffic and access to the site.
As a preliminary matter, Randolph faults the board for not explicitly addressing two fatal traffic accidents that occurred in the surrounding area, one at the railroad crossing and the other at an intersection in Randolph. The accidents, while unfortunate, did not materially affect the accident rate at any given intersection, and the board's failure to address them explicitly does not render its decisions unsupported by substantial evidence, arbitrary or capricious, an abuse of discretion, or not in accordance with the law. See Weinberg v. Board of Registration in Med., 443 Mass. 679, 687 (2005) (board not required to address "each and every" theory).
The first criteria that we must consider are traffic and access to the site. Pursuant to 310 Code Mass. Regs. § 16.40(4)(b), "[n]o site shall be determined to be suitable or be assigned as a solid waste management facility where traffic impacts from the facility operation would constitute a danger to the public health, safety, or the environment," taking into consideration the factors of traffic congestion, pedestrian and vehicular safety, road configurations, alternate routes, and vehicle emissions.
Randolph argues that TLA's traffic expert, Ron Muller, made arbitrary assumptions in estimating the number of delivery trips that will be generated by the facility and in predicting traffic patterns, and that those assumptions tainted his opinions. But Muller explained that the average truckload capacity is twelve tons, at which rate it will take eighty-four delivery trips for the facility to reach its daily maximum capacity, and that he doubled his estimated number of delivery trips to provide a conservative analysis of the effects on traffic. Muller also explained that he assumed trucks will follow existing traffic patterns, which he testified is a practice commonly employed by traffic engineers. While Randolph contends that lower capacity trucks may service the facility, resulting in a higher number of delivery trips, and that Muller should have predicted traffic patterns using a population-based gravity model, these issues go to the weight and credibility of Muller's testimony and were for the board to decide. See RicMer Props., Inc. v. Board of Health of Revere, 59 Mass.App.Ct. 173, 180 (2003) (reviewing court not empowered to make different credibility choices). Moreover, in response to Randolph's criticisms, Muller tested the roadway systems using an "extreme hypothetical scenario" and concluded that even under that extreme hypothetical scenario, traffic impacts from the facility operation will not constitute a danger to the public health, safety, or the environment.
Muller also collected peak period traffic counts at two similar facilities and concluded that those counts validated his estimates for peak period traffic at the facility.
Muller testified that traffic engineers use gravity models for retail establishments, and that he did not think such a model would produce more accurate results here.
This scenario assumed that the facility will generate many more peak period trips than Muller thought was warranted, and the scenario also assumed the worst-case scenario traffic pattern.
Randolph also argues that the board took an "unjustifiably benign" view of queues and that pedestrian and vehicular safety, as well as emergency response, will all be impaired. As discussed more fully below, there was conflicting evidence on all of these points, and we will not displace the board's reasonable view of that evidence. See RicMer Props., Inc., 59 Mass.App.Ct. at 180 (reviewing court not empowered to make de novo determination of facts).
Randolph contends that queues will double on the westbound side of Union Street and quadruple on the eastbound side of Union Street. While Randolph's traffic expert testified to some of these effects, Muller disagreed. Muller testified that the westbound and eastbound queues would double and quadruple, respectively, only in the extreme hypothetical scenario mentioned above and that the extreme hypothetical scenario is "wholly unrealistic for anything close to normal operations." Even in the event of the extreme hypothetical scenario, the queues will double and quadruple for a mere three minutes of the peak traffic hour. Moreover, while Muller acknowledged that there are additional delays when the gates go down for the railroad crossing, he testified that the resulting queues clear in one or two signal cycles. It was within the province of the board to credit, or not to credit, Muller's testimony. See RicMer Props., Inc., 59 Mass.App.Ct. at 180.
As to pedestrian and vehicular safety, Randolph again relies on the testimony of its traffic expert, who opined that the location of an employee parking area will impair (1) pedestrian safety because the parking area will be on another parcel adjacent to the assigned site, and separated from the assigned site by four concentric truck travel lanes and (2) vehicular safety because the parking area will share an open, overlapping curb cut with the driveway to the facility.However, Muller testified that the location of the employee parking area will not impair pedestrian safety because TLA employees will know how to walk around trucks, noting that employees who use that skill in their work will be able to use the same skill when walking to and from work. Muller also expressed no concern regarding the ability of cars to pull out of the employee parking area safely and testified that cars already "pull[] in and out of [that area] today." Moreover, the board imposed numerous conditions, including that TLA install a sign warning truck drivers of pedestrians, a sign limiting speeds to ten miles per hour, and a stop sign at the exit to the employee parking area. In light of the conflicting expert testimony, we defer to the technical competence of the board and do not second guess whether the conditions imposed by the board are sufficient to ensure pedestrian and vehicular safety. See Board of Health of Sturbridge, 461 Mass. at 562. See also RicMer Props., Inc., 59 Mass.App.Ct. at 180.
We note that Randolph raises another concern pertaining to vehicular safety, which is that large trucks backing into the municipal solid waste transfer building will encounter an unsafe road downgrade. However, there was evidence that road grading often changes over the course of a project. In light of this evidence and the fact that the site assignment process does not focus on facility design, whereas the subsequent permitting process does, see note 5, supra, we do not think the purported design flaw in road grading required the board to deny TLA's application for a site assignment. See Theophilopoulos, 85 Mass.App.Ct. at 95 n.14.
There was also evidence that TLA will train employees on the blind spots and operational tendencies of trucks.
As to emergency response, Randolph relies on the testimony of its police and fire chiefs, fact witnesses who nonetheless opined that TLA's use of the railroad crossing will compound traffic blockages, making it difficult for emergency vehicles to pass, and that the elimination of the road around the municipal solid waste transfer building will impede firefighting efforts at the facility. However, there was also evidence that TLA plans to use the railroad crossing only twice a day, in the overnight hours, which will pose no greater danger to emergency response than when the commuter rail uses the crossing, and that the facility will have a robust fire suppression system. Again, it was within the province of the board to weigh this conflicting evidence, and to conclude that emergency response will not be impaired. See RicMer Props., Inc., 59 Mass.App.Ct. at 180.
2. Other sources of contamination or pollution.
Second, we must consider whether "the projected impacts of the proposed facility pose a threat to public health, safety[, ] or the environment, taking into consideration the impacts of existing sources of pollution or contamination . . . and whether the proposed facility will mitigate or reduce those sources of pollution or contamination." 310 Code Mass. Regs. § 16.40(4)(k). At issue is TLA's plan to place railroad tracks in the Superfund site, which Randolph contends will disturb contaminated soil. In concluding that placing railroad tracks in the Superfund site will not pose a threat to public health, safety, or the environment, the board relied on 310 Code Mass. Regs. § 16.40(1)(c)(1) (2001), which required the board to presume that the facility will be designed and constructed to meet all relevant State and Federal statutory, regulatory, and policy requirements. Randolph argues that the board's reliance on this regulatory presumption was in error. We disagree.
Randolph cites TBI, Inc., 431 Mass. at 12-15, in support of its argument, but that case involved facts that are not analogous to the facts of this case. The issue in TBI, Inc., was whether the applicant satisfied its burden of showing that the proposed facility would meet required State and Federal air quality standards. See Id. at 12. On the one hand, 310 Code Mass. Regs. § 16.40(1)(c)(1) (1994) required the board of health of North Andover in that case to presume that the proposed facility would be designed and constructed to meet all relevant State and Federal statutory, regulatory, and policy requirements. See TBI, Inc., supra. On the other hand, a certified meteorologist opined that operation of the proposed facility would create a level of particulate matter higher than the EPA allowed. See Id. at 13. The board of health of North Andover reconciled the regulatory presumption with the conflicting evidence by interpreting the regulatory presumption as rebuttable and by concluding that the regulatory presumption had, in fact, been rebutted. See Id. at 12. The Supreme Judicial Court agreed and upheld the board of health of North Andover's decision. See Id. at 12-13.
While the regulations were thereafter amended, the regulatory presumption remained the same. See 310 Code Mass. Regs. § 16.40 (1) (c) (1) (2001) .
Here, unlike in TBI, Inc., there was no direct evidence that placing railroad tracks in the Superfund site will violate a State or Federal statutory, regulatory, or policy requirement. Instead, Randolph points to a restriction that prohibits TLA from excavating land in the Superfund site without first obtaining approval from the DEP, in consultation with the United States Environmental Protection Agency (EPA). The restriction does not support Randolph's position, as one of two possibilities may occur: (1) TLA shows, among other things, that it will ensure "safe management of groundwater and contaminated soils and sediments," in which case it may receive approval to excavate, or (2) TLA fails to make the necessary showing, in which case it will not receive approval to excavate and will have to devise a plan that does not involve excavating land in the Superfund site. In either scenario, nothing in the record suggests that there will be a violation of a State or Federal statutory, regulatory, or policy requirement. There was no evidence, for example, that TLA may receive approval to excavate even if it unsafe to do so. In these circumstances, we discern no error in the board's reliance on the regulatory presumption.
The restriction is contained in a notice of activity and use limitation issued by the EPA.
3. Size of the facility.
The last criterion that we must consider is the size of the facility. Pursuant to 310 Code Mass. Regs. § 16.40(4)(h), "[n]o site shall be determined to be suitable or be assigned as a solid waste management facility if the proposed site is insufficient to properly operate and maintain the proposed facility." Randolph argues that this criterion was not met where certain components, such as the employee parking area discussed above, will not be located on the assigned site. But Randolph has not explained how locating certain components offsite will undermine the proper operation and maintenance of the facility. Moreover, two different experts opined that the size of the site is sufficient to properly operate and maintain the proposed facility. The board did not err in crediting their testimony. See RicMer Props., Inc., 59 Mass.App.Ct. at 180.
Randolph also argues that the size of the site is the root cause for some of the other issues that we have discussed above. For example, Randolph argues that the size of the site is the reason why TLA had to eliminate the road around the municipal solid waste transfer building. Where we have already addressed those issues above, we need not address them again here.
Judgment affirmed.
The panelists are listed in order of seniority.