Opinion
20-P-925
03-02-2022
BOARD OF HEALTH OF SAUGUS v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Introduction. On April 9, 2018, defendant, the Department of Environmental Protection (the department), issued a modification of the operating permit for a landfill facility in Saugus (the facility) owned and operated by the defendant, Wheelabrator Saugus, Inc. (Wheelabrator). For over thirty-two years, the facility has been accepting coal ash waste, and the permit modification allows it to accept additional coal ash waste, beyond what had been allowed prior to the modification. Under G. L. c. 111, § 150A, as amended through St. 1987, c. 584, § 16 (the Solid Waste Management Act [SWMA]), and the regulations promulgated thereunder, solid waste management facilities such as the facility at issue here, must have both a valid "site assignment" from the municipality's board of health and an operating permit from the department. A facility owner or operator that has a permit may also apply to the department for a modification of its operating permit. 310 Code Mass. Regs. § 19.029 (2014).
Unless otherwise noted, all citations to the Code of Mass. Regs. are to the 2014 version in effect in 2017 when Wheelabrator applied for modification of its operating permit.
In issuing operating permits the department must consider whether the facility's design and operation will adequately "protect public health, safety, and the environment," 30 Code Mass. Regs. § 19.002. See G. L. c. 111, § 150A ; 310 Code Mass. Regs. § 19.038 (2)(a). This process includes public notice and comment, a public hearing in some instances, and the application of certain benchmarks, including general and facility-specific design and operation standards. 310 Code Mass. Regs. §§ 19.032 - 035, 19.038. See 310 Code Mass. Regs. §§ 19.100 - 19.151 (landfills) and § 19.200 - 19.207 (handling facilities). An application for a permit modification proceeds under the permit procedures set forth in 310 Code Mass. Regs. § 19.033. Specifically, the department may issue a provisional permit modification accompanied by notice that written comments may be submitted to it for a period of at least 21 days after its issuance. See 310 Code Mass. Regs. § 19.033 (4)(a). After the comment period the department issues a final permit modification decision. Id.
The plaintiff, the town of Saugus's board of health ("the board"), sought judicial review in the Superior Court under G. L. c. 30A, § 14 and G. L. c. 111, § 150A, of the final decision of the department to modify the facility's operating permit, claiming that the modification was improper because the facility lacked a valid "site assignment" as required by G. L. c. 111, § 150A, and because the department's decision that the modification of the operating permit was not a threat to public health, safety, the environment, or endangered species and their habitat was unsupported by substantial evidence. The Superior Court judge rejected the board's claims and upheld the department's decision, entering judgement on the pleadings on July 26, 2019. The board has appealed and we now affirm.
Discussion. A. Standard of review. Pursuant to G. L. c. 30A, § 14, the Superior Court reviews a decision of the department "to determine whether it was not supported by substantial evidence, was arbitrary or capricious, or was otherwise based on an error of law." Healer v. Department of Envtl. Protection, 75 Mass. App. Ct. 8, 13 (2009). We review a decision allowing a motion for judgment on the pleadings de novo. See Conservation Comm'n of Brockton v. Department of Envtl. Protection, 81 Mass. App. Ct. 601, 605 (2012). We will uphold the department's decision so long as the "findings by the authority are supported by substantial evidence in the record," defined to mean "such evidence as a reasonable mind might accept as adequate to support a conclusion." Fitchburg Gas & Elec. Light Co. v. Dep't of Pub. Utils., 460 Mass. 800, 812 (2011).
B. Site assignment. The board argues first that there is no valid site assignment permitting the dumping of ash at the facility. We disagree.
The Saugus facility, under various owners, has been operating as a dumping ground for rubbish and refuse since prior to July 25, 1955. In 1955, the Legislature adopted "An Act Concerning the Assignment of Places for Public and Private Dumps," codified as G. L. c. 111, § 150A. See St. 1955, c. 310. It was amended in 1987 by an act known as the Solid Waste Management Act (SWMA), which also added G. L. c. 111, § 150A 1/2 that established standards and criteria for siting of solid waste disposal facilities. St. 1987, c. 584, § 16. The SWMA and its regulations at 310 Code Mass. Regs. § 16.01 -16.99 & § 19.001 -19.30 establish a comprehensive scheme under which the department and local boards of health currently designate areas of land for use by solid waste management facilities; that is, they make site assignments.
At the time of its enactment in 1955, however, G. L. c. 111, § 150A, granted site assignments to all sites then "in use as ... a dumping ground for garbage, rubbish, and other refuse." It is undisputed that the Saugus facility was used as a dumping ground for rubbish and refuse prior to 1955 and so it was assigned for that purpose by the operation of G. L. c. 111, § 150A. On July 18, 1963, at the request of the board, and after a public hearing, the Massachusetts Department of Public Health (DPH) found that the facility was a "nuisance and a menace to health, primarily because of odors, smoke and fire," and it modified the facility's site assignment to require that it be operated as a "sanitary landfill," one which complied with certain practices, such as a requirement that the refuse be compacted in shallow layers, that it be covered each day with six inches of clean fill, and that burning be prohibited. The board argues that the 1955 site assignment did not permit the facility to accept ash waste, and that the 1963 modification to the site assignment which required the facility to be operated as a "sanitary landfill" also prohibited the disposal of ash at the site.
We may assume without deciding that, as the board argues, prior to the enactment of G. L. c. 111, § 150A, the facility accepted only municipal waste. As the facility had previously been used for the disposal of rubbish, however, we think that the assignment wrought by the statute in 1955, allowed the facility to be used for disposal of "rubbish." Although rubbish was not further defined in the text of G. L. c. 111, § 150A, as adopted in 1955, the State sanitary code, promulgated by the DPH on May 14, 1963, in regulating family campgrounds, defined "rubbish" to include "combustible and noncombustible waste material ... [including] the residue from the burning of wood, coal, coke, and other combustible materials." Sanitary Code, Article VIII, Regulation 1 (1963). This includes ash, and we think the DPH definition of "rubbish" from approximately the era of the adoption of the G. L. c. 111, § 150A, provides a reasonable way of construing the word as it appears in the 1955 statutory text. Consequently, we conclude that the original 1955 site assignment allowed the facility to accept ash for disposal.
Second, we are unpersuaded by the board's assertion that a "sanitary landfill is one that accepts municipal trash" and not ash. The 1963 modification does not by its terms contain any restrictions on the type of waste that could be disposed at the facility. Id. Rather it requires that the facility be operated in compliance with the waste disposal practices it describes. The board points to a condition in the 1963 modification which states that that "burning [will] be prohibited" at the sanitary landfill. But this provision straightforwardly means that the burning of waste at the facility is prohibited; it does not address the disposal of ash waste from incineration conducted elsewhere.
C. Permit modification. The board next argues that the permit modification should not have issued because the department lacked substantial evidence for its finding that the modification complied with the requirements of 310 Code Mass. Regs. § 19.038(2), specifically that it is not a threat to public safety, health, the environment, or endangered species and their habitat.
1. The modification. Although no incineration is done at the facility, by 1974, the previous operators of the facility had begun the process of obtaining a permit to construct, in an area adjacent to the facility, the incinerator which produces the ash now disposed of at the facility.
On June 29, 1989, the department issued an administrative consent order ("consent order") to require the operator's compliance with the department's new ash disposal policy. The consent order established a number of operating requirements, such as restricting the type of waste that can be disposed at the facility to just ash waste and limiting the maximum height of the facility to fifty feet. It also established requirements for the facility's ultimate closure, including the adoption of an agreed upon Final Engineering Plan (FEP). The FEP was to contain various engineering requirements relating to the containment of waste at the facility and its ultimate closure.
Consistent with the ash disposal policy, the consent order required the operator to construct a containment system called a "slurry wall" that was to be used instead of a conventional liner system to contain the ash waste. The FEP also was to contain design standards for the final slopes or grades for valleys within the facility. In 1991, the FEP was incorporated into the operating permit for the facility.
The consent order required the facility to close when it reached the FEP's final grades, which was projected to occur by the end of 1996, but permitted the department to alter the date if the facility took more or less time to reach final grade. Due to greater compaction rates and lower ash disposal rates than were originally estimated, substantial space remained at the end of 1996. Accordingly, the department amended the consent order and the FEP several times and ultimately allowed the facility to continue to operate until it reaches the approved final grades.
In 2007, Wheelabrator sought permission from the department to alter the grades of three of the five "valleys" inside the facility from a five percent slope to a two percent slope, which was granted in a 2008 modification of the operating permit. In the 2017 application at issue here, Wheelabrator sought a modification to similarly reduce from five percent to two percent the minimum slope of the two valleys within the landfill not covered by the 2008 modification, known as valleys I and II. To achieve the reduced gradient "the elevation of the bottom of (valleys 1 and 2) [would] be raised," by the addition of additional ash to the facility. Pursuant to the 2017 application, the facility's disposal capacity would expand to include an additional 400,000 cubic yards of ash, and permit the facility to prolong its operations. The proposed modification required amendment of the consent order, the FEP, and, as relevant here, the operating permit for the facility. The department issued a provisional approval of the proposed permit modification on November 1, 2017, and, after a notice and comment period during which it received over 1,800 comments including from the board and their co-plaintiff, the Conservation Law Foundation, the department issued final approval on April 9, 2018.
2. Analysis. The board's principal argument with respect to the Department's conclusion that the permitted modification is not a threat to public safety, health, the environment, or endangered species and their habitat, is that the department failed properly to consider certain monitoring data the board argues contradicts the department's conclusion. The board notes that the facility is located in the Rumney Marsh, a designated "[a]rea of [c]ritical [e]nvironmental [c]oncern," and asserts that its containment system, a "slurry wall," is ineffective. The department concluded that the facility's "slurry wall" is "at least as effective as a traditional liner." The board asserts that certain "piezometer" monitoring data reveals that the slurry wall is an ineffective containment system for the purposes of preventing leakage into the surrounding marsh.
The slurry wall works by providing a thick barrier wall connected to a naturally-occurring layer of clay underlying the facility that acts as an impervious floor, containing the facility's contents. The system then uses pumps to remove stormwater and groundwater, keeping water levels inside the facility lower than those outside and maintaining an inward hydraulic gradient. The inward gradient ensures that if any water could seep through the walls, the tendency would be for it to seep into the facility, not out of it. As part of the FEP, the department required Wheelabrator to monitor the water levels inside and outside of the facility regularly using a ring of paired piezometers to confirm that the groundwater elevation within the slurry wall, on average, remains below the groundwater elevation outside the slurry wall.
The board argues that because at times between 2012 and 2017, individual pairs of piezometers sometimes showed that the interior water levels exceeded exterior water levels at particular locations, the hydraulic gradient has been reversed and the slurry wall system has failed, and that absent a testing requirement, there is no way to determine that it has not.
The department responds that the FEP and operating permit only require the facility to "maintain the average monthly groundwater elevation within the slurry wall below the average monthly groundwater elevation outside the wall." This is because the data analysis must account for "the lunar and tidal cycles that influence the readings." The department has determined that if the average monthly groundwater elevation is lower than the external average monthly elevation, then the performance standard has been met. The board does not claim that the average monthly internal groundwater elevation has ever exceeded the average external groundwater elevation during the relevant period.
The department also cites evidence that the slurry wall has extremely low permeability such that even if the internal water levels exceeded the external water levels by an entire foot for a decade, the water from inside the facility would only move approximately six inches into the five-foot thick barrier walls. This combination of factors established to the department's satisfaction that isolated occurrences of internal piezometer readings marginally exceeding external piezometer readings did not actually indicate that seepage has occurred, and that no further testing is required. Therefore, the department contends, the board has failed to show that the individual piezometer readings to which it cites actually demonstrate that the slurry wall has failed, and that the surrounding marsh is threatened. Because the record evidence to which the department points might be accepted by a reasonable mind as sufficient to support its conclusion that the modification is not a threat to public safety, health, the environment, or endangered species and their habitat, there is "substantial evidence" supporting that conclusion, and, therefore, the issuance of the permit modification. See Goldberg v. Board of Health of Granby, 444 Mass. 627, 638-639 (2005).
Under amendments to the consent order, the department also required Wheelabrator to fund extensive mitigation efforts designed to restore and enhance the Rumney Marsh area and also create accessible public open space, including a wildlife sanctuary. The board argues that because the facility does not conduct groundwater testing to determine whether the hazardous materials in ash runoff are leeching from the landfill into the surrounding marsh, the efficacy of these mitigation measures has not been shown. But the mitigation measures were not implemented to address seepage through the slurry wall, but to address damage that was done before the adoption of the consent order and the FEP. In light of our conclusion about the department's determination with respect to the efficacy of the slurry wall, we need not reach the board's contentions about the efficacy of the mitigation measures ordered by the department.
Conclusion. For the foregoing reasons, the Superior Court's entry of judgment on the pleadings is affirmed.
So ordered.
affirmed