Opinion
No. 11–P–1005.
2012-08-9
Jana CHICOINE & others v. COMMISSIONER OF the DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
By the Court (CYPHER, GREEN & TRAINOR, JJ.).
The plaintiffs, all members of the Concerned Citizens of Russell (CCR), brought this action pursuant to G.L. c. 30A, § 14, seeking judicial review of a decision of the Department of Environmental Protection (department) granting Russell Biomass, LLC (RBM), conditional approval of a comprehensive plan application (air permit). The air permit was issued pursuant to 310 Code Mass. Regs. § 7.02(5)(a) (2004), and allows RBM to operate a wood-burning electric power plant that emits pollutant gases. A judge of the Superior Court affirmed the decision of the department to deny CCR's request for an adjudicatory appeal based on lack of jurisdiction on the grounds that it was untimely. We conclude that CCR's appeal was timely filed within the twenty-one day period required under the applicable regulation, and therefore reverse the judgment.
Discussion.
Pursuant to 310 Code Mass. Regs. § 1.01(6)(a) (2004),
The full text of the regulation reads: “Any person having a right to initiate an adjudicatory appeal shall file a written notice of claim for an adjudicatory appeal. The notice shall be filed within the time prescribed by an applicable provision of law, or in the absence of a prescribed time period, within 21 days from the date that the notice of Department action was sent to a person.”
with a right to appeal from a decision of the department must appeal either within a prescribed time period or twenty-one days from the date that notice was “sent to a person.” The department granted RBM the conditional air permit on December 30, 2008, and sent notice on the same day by electronic message (e-mail) to RBM. The department notified CCR of the decision by e-mail on January 6, 2009. At issue is whether the twenty-one day appeal period for CCR began to run when notice was sent to RBM or when notice was sent to CCR.
Person is a defined term that means “an individual or legal entity.” 310 Code Mass. Regs. § 1.01(1)(c) (2004).
We do not reach the question whether CCR is a proper party having a right to initiate an appeal because the department has waived this issue. There is no record of any formal action taken by CCR to intervene and become a party in the air permit application proceedings between the department and RBM in accordance with 310 Code Mass. Regs. § 1.01(7)(a)-(f) (2004). An appearance at a permit hearing or even filing a notice of appeal does not in itself make CCR a party. If CCR were not a party, then CCR would not have been entitled to any notice. See Ginther v. Commissioner of Ins., 427 Mass. 319, 324 (1998) (“Mere participation in the administrative process does not confer standing to raise a claim in the Superior Court”); Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 559–562 (2012) (citizens group had no standing to appeal an administrative decision although they had qualified as interveners and fully participated in the original proceeding). However, the department did not raise the issue of CCR's standing either during its adjudicatory appeal process, or in the Superior Court.
Here, there is no period of time set forth in the applicable law governing the time required to appeal from the issuance of an air permit. Therefore, CCR had twenty-one days from the date that notice was sent “to a person.” 310 Code Mass. Regs. § 1.01(6)(a). The judge deferred to the department's interpretation of the regulation, which interpreted the regulation's language as requiring CCR to file its notice of appeal twenty-one days from the date that notice was sent to RBM, effectively providing CCR with only fourteen days instead of the required twenty-one days to initiate an appeal. The record establishes that CCR was aware of the regulation, read the air permit, and relied on the language in both that indicated that CCR had twenty-one days to file an appeal. Thus, CCR believed that it was entitled to twenty-one days from the date the department sent it notice and consequently filed for an adjudicatory appeal on January 27, 2009, on exactly the twenty-first day after receipt of notice.
We view the department's interpretation of its regulations with deference. Hotchkiss v. State Racing Commn., 45 Mass.App.Ct. 684, 691–692 (1998). The department avers that the twenty-one day time period began at the time RBM received notice that the air permit was granted. The department also argues that its procedures only require notification to the applicant and public posting of the permit.
The department further argues that CCR had constructive notice when the department posted the permit in its Springfield office on the same day it sent notice to RBM, and that CCR failed to fulfill its responsibility of reasonable inquiry. However, even with appropriate deference to the department's interpretation, the regulation itself does not support such a construction.
The regulation requires the department to “Notify the applicant in writing of the final decision and make such notification available for public inspection.” 310 Code Mass. Regs. § 7.00: Appendix A(9)(b)(7) (2004). While this regulation describes the department's procedures when acting on an application, it does not purport to cover the department's adjudicatory appeal process, which is described in 310 Code Mass. Regs. § 1.01(6)(a).
The wording of 310 Code Mass. Regs. § 1.01(6)(a) is at best ambiguous as to which event triggers the twenty-one day time clock. A regulation that is overly unclear or ambiguous is not enforceable. See Druzik v. Board of Health of Haverhill, 324 Mass. 129, 134 (1949); Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950). The triggering event, when notice “was sent to a person,” could suggest, inter alia, when (1) notice was sent to the person who is initiating the appeal, or (2) the permit was approved and the applicant was notified (although those two events could themselves occur on different dates), or (3) notice was sent to all parties (again, however, notice could be sent to different parties on different dates, as occurred in the present case). We believe the first construction is the only one that yields a consistent result. Moreover, the time period for filing an appeal should be construed in context of the regulation in which it appears. The first sentence of that regulation describes the action required to initiate an appeal (filing a written claim of appeal) by “[a]ny person having a right to initiate an adjudicatory appeal”; the immediately following sentence describes the time period within which such action must be taken, by reference (as we have observed) to the date on which notice of the department's action is sent to “a person.” The clear purpose of the regulation is to give the person who desires to appeal the decision twenty-one days to file an appeal. Therefore, we construe the regulation to mean that the “person” referred to in the second sentence, the recipient of the notice triggering the appeal period, is the person filing such an adjudicatory appeal, as described in the first sentence of the same regulation. 310 Code Mass. Regs. § 1.01(6)(a).
The department separately argues that it is the notice sent to the permit grantee, and only that notice, that constitutes “notice of Department action” within the meaning of the second sentence of the regulation, so that the appeal period runs in all cases from the date on which the department notifies the permit grantee of its decision, regardless of when any other parties might be notified. We are unpersuaded. The department action is the grant of the permit, not the notice thereof sent to the grantee (or any other person to whom it might be sent). Accordingly, the time period for appeal runs, for any person entitled to initiate such an appeal, from the date on which notice was sent to them, and not from the date of the department's action or the date on which notice of the department's action was sent to someone else.
The department sent notice to CCR in the present case seven days after sending notice to RBM. We observe that the department's interpretation opens the possibility that a party could lose its right to appeal a particular action before receiving notice of it, if the department does not send notice to that party for twenty-one days after sending notice to the applicant. Absent clear language compelling such a construction, we are reluctant to adopt it.
Judgment reversed.