Opinion
13-P-776
10-21-2014
EARTHSOURCE, INC. & others v. COMMISSIONER, MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION & others
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, EarthSource, Inc., and a group of fifteen individuals residing in Massachusetts, brought this action in Superior Court pursuant to G. L. c. 214, § 7A, as amended by St. 1981, § 643, G. L. c. 111, § 150A, as in effect prior to St. 2010, c. 131, § 63, and G. L. c. 30A, § 14, alleging that significant damage to the environment is occurring, or about to occur, as a result of the operation of four municipal solid waste incinerators located throughout the State. The plaintiffs' first supplemental complaint (complaint) names as defendants the Commissioner of the Massachusetts Department of Environmental Protection (DEP), Covanta Operations of SEMASS, LLC, and eight other Covanta entities (collectively Covanta). Covanta operates the four incinerators in question, and EarthSource and Covanta are competitors in the waste industry. Following disposition of the defendants' motions to dismiss and the plaintiffs' motion for judgment on the pleadings, final judgment entered for the defendants, dismissing all claims. We affirm.
For factual and procedural background, we refer to the thoughtful and thorough memoranda issued by the motion judges, including the first judge's August 18, 2010, "Memorandum of Decision and Order on Defendants' Motions to Dismiss," (dismissal order) and a second judge's December 19, 2011, "Memorandum of Decision and Order on Plaintiffs' Motion for Judgment on the Pleadings," (determination of need or DON order).
1. Motions to dismiss. Several counts (1-4 and 7) of the plaintiffs' complaint were dismissed on the basis of timeliness. The statute of limitations for actions under G. L. c. 214, § 7A, is determined by the statutory scheme governing the alleged violation at issue in the complaint. Canton v. Commissioner of the Mass. Hy. Dept., 455 Mass. 783, 786 (2010) (G. L. c. 214, § 7A, claim alleging violation of G. L. c. 30, §§ 62-62H, constrained by statute of limitations set forth in § 62H). See Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 613-614 (1988).
Here, the judge determined that, as to all but counts 5, 6, and 8, the complaint's allegations of environmental damage under G. L. c. 214, § 7A, were directed at the issuance of the various environmental permits. The plaintiffs respond that their claims went beyond challenges to agency action and point to very general language at the beginning of the complaint, stating that "[t]he actual or intended use or operation of any Covanta incinerator that is in violation of [any permit or authorization issued by DEP or the Massachusetts Environmental Policy Act or any regulation implementing the forgoing] constitutes significant damage to the environment which is occurring or is about to occur." However, the "entire thrust" of the dismissed claims centered on the environmental permits identified in the relevant count as the source of environmental harm. School Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 808 (1985) (where entire thrust of complaint was aimed at setting aside an agency decision, "an action for declaratory judgment cannot be used as a substitute for timely appeal under G. L. c. 30A, § 14"). Accordingly, the statute of limitations established in G. L. c. 30A, § 14, required the plaintiffs to bring their claims under G. L. c. 214, § 7A, within 30 days of the issuance of the permits that formed the basis of the complaint. The judge properly dismissed those counts.
See, for example, paragraph 73, which concludes in count I: "The 2004 Final Air Quality Operating Permit and DON were in violation of applicable law and regulations, the major purpose of which are to prevent or minimize damage to the environment. As a result of the violation, significant damage to the environment is occurring, or is about to occur, within the meaning of G. L. c. 214, § 7A and Plaintiffs seek declaratory and equitable relief herein to prevent such damage."
The plaintiffs assert in their brief, by way of footnote, that a claim in count 2 of their April 2, 2010, first supplemental complaint, challenging the DEP's August 9, 2009, special waste determination for the Pittsfield facility, was timely. As DEP points out, that determination had not been issued when the initial complaint was filed on June 19, 2009, see, e.g., Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 849 (2002), and the plaintiffs did not move to add it to the initial complaint within the 30 day limitation period. See, e.g., James Ferrera & Sons, Inc. v. Samuels, 21 Mass. App. Ct. 170, 172-173 (1985) (by invoking relation-back doctrine, plaintiffs' amended complaint was treated as if brought on the date of the original complaint). The plaintiffs' response, that the claim was still timely under G. L. c. 214, § 7A, is unavailing, for the reasons stated above.
2. Standing under G. L. c. 30A, § 14 . Following the dismissal order, the plaintiffs moved for judgment on the pleadings as to count 5. Count 5, which was timely filed, sought judicial review, under G. L. c. 30A, § 14, of the DEP's approval of Covanta's application for a determination of need (DON) for its proposed fats, oils, and grease (FOG) recycling project. The judge ruled, as a threshold matter, that the plaintiffs had standing to pursue the claim, having extensively participated in the public comment process before the DEP in connection with the DON. However, after that decision, the Supreme Judicial Court issued Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548 (2012), holding that participation in public hearings before an agency was not sufficient, in itself, to confer standing to bring a direct action for judicial review of the agency decision.
In Count V, the plaintiffs also made a series of claims against Covanta pursuant to G. L. c. 214, § 7A (dismissal order).
The plaintiffs now argue that they, in fact, lacked standing under Board of Health of Sturbridge v. Board of Health of Southbridge, supra, and, given that, they continue, the Superior Court was without jurisdiction to decide their G. L. c. 30A, § 14, claim and should have dismissed it. We agree. Nevertheless, as the parties have fully briefed the issues, we consider the matter briefly and agree with the judge that, even had the plaintiffs possessed the requisite standing, the arguments would have failed. See Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. at 561-562 (parties briefed and argued the merits, and "it is appropriate to bring a final resolution to this case").
The complaint alleges only that EarthSource is a competitor of Covanta, which is not sufficient to establish that EarthSource is aggrieved, under G. L. c. 30A, § 14, for purposes of alleging harm within the area of concern of an environmental statute. See Arbella Mut. Ins. Co. v. Commissioner of Ins., 456 Mass. 66, 83 (2010).
3. Judicial review of the DON under G. L. c. 30A, § 14 . Covanta sought exemption from site assignment, under 310 Code Mass. Regs. 16.05 (2001), on the ground that it proposed to handle only presorted recyclable materials at the new facility. The plaintiffs opposed the exemption, because, in their view, the FOG material to be received at the new facility is not presorted recyclable materials, but is, in fact combined solid waste; also, in their view, the FOG material should be characterized as sewage under the regulations.
The judge carefully reviewed the administrative record and the plaintiffs' contentions, and applied the correct legal standard, concluding that the regulations supported the exemption. We affirm, substantially for the reasons he explained in the DON Order. See, e.g., Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 836-837 (2006).
Considerable deference is afforded DEP's interpretation of its own regulations, and the plaintiffs face a "formidable burden" to show that DEP's interpretation is not rational. Ten Local Citizens Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010). In this case, DEP reasonably interpreted the regulations to permit the new facility to recycle FOG material received from food establishments, where the material was to be separated through plumbing into grease traps to remove residue prior to comingling with other wastes, and then stored until removed for recycling. This mode of presorting was also included as a condition in DEP's approval of the DON. The plaintiffs simply do not establish either that the regulations prohibit this manner of processing FOG material or that they require, in order to qualify as presorted for purposes of the exemption, that all residue be removed from FOG material prior to arrival at the facility. See 310 Code Mass. Regs. 16.02 (2001).
Condition four of the DON provided: "The Owner/Operator shall recycle only FOG Material that has been presorted as defined in 310 [Code Mass. Regs. (2001)] 16.02 at the point of generation from general wastewater, and shall not receive or recycle FOG Material that is or has been comingled or contaminated with sewage as defined by 310 [Code Mass. Regs.] 15.000 or 314 [Code Mass. Regs] 5.00, 12.00, or 20.00 et sec."
The regulations specifically provide that presorted recyclable material may include a small amount of residue, here a specified percentage set by DEP. 310 Code Mass. Regs. 16.05(3)(d) (2000).
In addition, the plaintiffs fail to show that DEP erred when it distinguished FOG material, which contains fats, oils, and grease that are separated before entering the sewage system, from human and animal waste. Their argument that the regulations should be interpreted to include cooking fats in the definition of human and animal waste is not persuasive. See Zoning Bd. of Appeals of Wellesley v. Housing Appeals Comm., 385 Mass. 651, 657 (1982). ("A court may not displace an administrative board's choice between two fairly conflicting views.") In sum, the plaintiffs have not met their burden of showing that the DEP's characterization of the proposed FOG material as presorted recyclable material was based on an error of law, was unsupported by substantial evidence, or was arbitrary or capricious. See Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. at 836-837. Accordingly, the judge properly affirmed DEP's issuance of the DON.
4. Challenge to MEPA compliance under G. L. c. 214, § 7A . The plaintiffs also argue that their claim under G. L. c. 214, § 7A, alleging that the DON was issued in violation of the Massachusetts Environmental Policy Act (MEPA), G. L. c. 30, §§ 61-62H, should not have been decided as part of their c. 30, § 14 claim. The plaintiffs maintain that under Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. at 561-562, and EarthSource, Inc. v. Commissioner of Dept. of Envtl. Protection, 83 Mass. App. Ct. 1133 (2013), their MEPA claim cannot be brought in an action under G. L. c. 30A, § 14, and that G. L. c. 214, § 7A, is their sole avenue of review. See, e.g., Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 142 (2000) (citizens who lack standing under c. 30A, § 14, may bring an action under c. 214, § 7A, to challenge MEPA compliance).
Be that as it may, the plaintiffs' claim under G. L. c. 214, § 7A, alleging that damage to the environment is about to occur because the DON violates MEPA, is premature. According to the complaint, MEPA review in connection with the DON was limited to the FOG recycling project as then proposed, and was not a final determination of MEPA applicability. The DON itself identified five DEP permits or approvals that would be required before Covanta could undertake construction, and, as the complaint alleges, it was anticipated that information developed in the permitting process might reveal that MEPA review thresholds would be exceeded. The express policy of MEPA is to expedite environmental approvals; that policy would be thwarted by piecemeal review of interim MEPA determinations through an action under § 7A, such as the plaintiffs'. For this reason, the claim was properly dismissed. Enos v. Secretary of Envtl. Affairs, 432 Mass. at 143, citing St. Botolph Citizens Comm., Inc. v. Boston Redev. Authy., 429 Mass. 1, 10 (1999).
5. Additional matters. The record confirms that the plaintiffs' argument that DEP lacked jurisdiction to act on the DON application was not preserved for appeal. The plaintiffs fail to persuade us, in their brief's single-sentence argument, that the issue of DEP's jurisdiction goes to the subject matter jurisdiction of the court, such that it can be raised at any time.
We affirm dismissal of the plaintiffs' claim that the FOG recycling project violates the moratorium set forth in DEP's solid waste master plan, for the reasons stated in Earthsource, Inc. v. Commissioner of Dept. of Envtl. Protection, 83 Mass. App. Ct. 1133 (addressing the moratorium in connection with Covanta's Pittsfield facility, as prohibiting an expansion in capacity). Dismissal of the plaintiffs' claim, alleging that the DON violated the reporting and tax payment requirements of G. L. c. 16, § 24A, was also correct, substantially for the reasons stated in the dismissal order.
Based on the foregoing, we affirm the final judgment dismissing all claims.
Judgment affirmed.
By the Court (Green, Hanlon & Hines, JJ.),
Justice Hines participated in the deliberation on this case while an Associate Justice of the court, prior to her appointment as an Associate Justice of the Supreme Judicial Court.
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Clerk Entered: October 21, 2014.