Summary
addressing the moratorium in connection with Covanta's Pittsfield facility, as prohibiting an expansion in capacity
Summary of this case from Earthsource, Inc. v. Comm'r, Mass. Dep't of Envt'l Prot.Opinion
No. 12–P–1151.
2013-05-29
EARTHSOURCE, INC., & others v. COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL PROTECTION & another (and a companion case ).
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
EarthSource, Inc., and twenty-nine individuals (collectively, EarthSource) bring these consolidated appeals from Superior Court judgments affirming final decisions of the Massachusetts Department of Environmental Protection (DEP). In those decisions, the DEP dismissed EarthSource's opposition to DEP's issuance of two comprehensive plan approvals (CPAs) to Covanta Pittsfield, LLC, and SEMASS Partnership (collectively, Covanta) for proposed modifications to Covanta's Pittsfield and SEMASS waste combustion facilities. EarthSource appeals pursuant to G.L. c. 30A, § 14, and argues that the Superior Court committed three errors in affirming the DEP decisions. Specifically, EarthSource argues that the CPAs violated (1) Title 310 Code Mass. Regs. § 7.00Appendix A; (2) the Massachusetts Environmental Policy Act (MEPA); and (3) the moratorium contained in the DEP's solid waste master plan.
We affirm. Discussion. 1. Appendix A compliance. EarthSource argues that the DEP issued the CPAs in violation of 310 Code Mass. Regs. § 7.00Appendix A. EarthSource contends that the DEP arbitrarily and capriciously rejected its argument that Covanta's projects exceeded the emissions threshold specified in Appendix A. The DEP found that Appendix A review did not apply.
Like the trial court, we affirm the DEP decisions without reaching the question whether the plaintiffs had standing to bring these actions.
With regard to the Pittsfield project, EarthSource argues that Appendix A applies to any facility modification that creates an increase in emissions of more than one ton per year (tpy).
However, this argument is not supported by the applicable regulations. Appendix A only applies “to any new major stationary source or major modification.” 310 Code Mass. Regs. § 7.00Appendix A(3)(b) (2000). The regulations define a “[m]ajor [m]odification” as one that “would result in a significant net emissions increase of any pollutant, for which the existing source is major.” Id. at § 7.00 Appendix A(2) (2000). A “significant net emissions increase” for NOx, which is the relevant compound in this instance, amounts to an increase of 25 tpy or more. Ibid. (definition of “Significant”). Thus, in order for the Pittsfield modification to trigger Appendix A review, it must result in an increase of at least 25 tpy of NOx.
In support of its argument that a one tpy threshold applies, EarthSource notes that Appendix A(3)(e) and (f) state that “whenever any physical change or change in the method of operation at that source results in any increase (other than a de minimis increase) in emissions ... such increase shall be considered a modification for purposes of ... Appendix A.” 310 Code Mass. Regs. § 7.00Appendix A(3)(e), (f) (2000). See id. at § 7.00 Appendix A(3)(g). Appendix A does not define the term “de minimis increase.” EarthSource argues that we must use the definition of de minimis that is in a different and unrelated section of the air regulations, 310 Code Mass. Regs. § 7.02(2)(b)(7) (2005). There is no precedent for this argument, as both the DEP and Superior Court recognized. We decline to accept this formulation.
After its review, the DEP found that the proposed modification to the Pittsfield facility would result in potential additional emissions of 22.1 tpy of NOx. Accordingly, the DEP concluded that the proposed modification did not trigger Appendix A review. “An agency's interpretation of its own regulation and statutory mandate will be disturbed only ‘if the “interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.” ‘ “ Box Pond Assn. v. Energy Facilities Siting Bd., 435 Mass. 408, 416 (2001), quoting from TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 17 (2000). We may not ordinarily substitute our own judgment for that of an agency. See Massachusetts Med. Soc. v. Commissioner of Ins., 402 Mass. 44, 62 (1988). The DEP decision was not based upon an error of law, and we do not disturb it.
Additionally, with regard to the SEMASS project, EarthSource argues that the DEP used the wrong test to determine the projected emissions increase from the proposed modification and, as a result, incorrectly found that Appendix A did not apply. EarthSource contends that the DEP should have applied the so-called “actual-to-potential” test, which compares past actual emissions to future potential emissions. See par. (c) of the definition of “Actual Emissions” at 310 Code Mass. Regs. § 7.00Appendix A(2) (2000) (“For any emissions unit ... which has not begun normal operations on the particular date, actual emissions shall equal the [F]ederal potential emissions of the unit on that date”).
However, the relevant provision—par. (b) of the same definition—demonstrates that in fact, the “actual-to-actual” test applies. “For ... an emissions unit [ ] complying with 310 [Code Mass. Regs. § ] 7.08(2), 7.18, 7.19, 7.24, or 7.27, actual emissions of the unit following the physical or operational change shall equal the representative actual annual emissions of the unit....” Since the SEMASS facility is a municipal waste combustor which complies with 310 Code Mass. Regs. § 7.08(2) (1998), the DEP properly compared the current actual emissions to the representative actual annual emissions. The DEP determined that the actual emissions from the SEMASS facility would not change as a result of the modification (a determination subject to Covanta's compliance with future reporting and verification requirements). Once again, we defer to the agency's determination.
2. MEPA claims. EarthSource also argues that the DEP's issuance of the CPAs was unlawful due to a lack of compliance with the Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, §§ 61–62H. Specifically, EarthSource argues that the DEP erred in concluding that the projects did not meet certain regulatory thresholds under 301 Code Mass. Regs. § 11.03 to trigger the MEPA review process. In reaching its conclusions, the DEP relied on advisory opinions to that effect from the Executive Office of Energy and Environmental Affairs, which has statutory authority for implementing MEPA. Based substantially on the reasoning and authorities set out by the judge below, by Covanta in its brief, and by the DEP presiding officers who heard the CPA challenges, we are satisfied that the merits of the MEPA threshold issues are not properly presented in this G.L. c. 30A appeal, and we do not reach them.
3. Dismissal of moratorium claims. Finally, EarthSource appeals the DEP's dismissal of its claims that the DEP issued the CPAs in violation of a DEP moratorium. EarthSource contends that the projects expand the combustion capacity of the facilities in violation of the executive moratorium banning new or expanded municipal solid waste combustors.
With regard to the SEMASS project, EarthSource waived this claim by failing to raise it in its notice of claim and request for adjudicatory hearing before the DEP. See 310 Code Mass. Regs. § 1.01(6)(b) (2004); 310 Code Mass. Regs. § 1.01(7)(b) (2008); Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 232 n .15 (2010). Similarly, the Superior Court properly declined to consider this argument on appeal. See Shoolman v. Health Facilities Appeal Bd., 404 Mass. 33, 42–43 (1989).
With regard to the Pittsfield facility, the DEP concluded that the CPA does not constitute an expansion of municipal waste combustion capacity. Under the CPA, the new waste stream will be counted towards the existing permit limitations of 240 tons per day and 84,000 tons per year. Thus, the CPA does not authorize an expansion in incineration capacity and, as the DEP found, does not violate the moratorium.
Judgments affirmed.