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06/07/78 TOWN HOLDEN v. DIVISION WATER POLLUTION

June 7, 1978

TOWN OF HOLDEN
v.
DIVISION OF WATER POLLUTION CONTROL & OTHERS



Worcester. Civil action commenced in the Superior Court on June 24, 1976. A motion to dismiss was heard by Greaney, J., and the case was reported to the Appeals Court by Beaudreau, J.

Keville, Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Division of Water Pollution Control. Practice, Civil, Parties, Declaratory proceeding. Administrative Law, Standing, Exhaustion of remedies.

The opinion of the court was delivered by: Brown

A town was a "person aggrieved" within the meaning of G. L. c. 21, § 46A, and therefore had standing to obtain judicial review of two advisory rulings by the Division of Water Pollution Control granting subdivision developers exemptions from a requirement that they obtain permits for connections to the sewer system serving the town, where the town's interest in the purity of its water was protected by the Massachusetts Clean Waters Act and the threatened injuries alleged were not remote, speculative, or insubstantial. [426-427]

A dispute between the Division of Water Pollution Control and a town, with respect to the official interpretation of a statute, was an "actual controversy" amenable to adjudication under G. L. c. 231A, where the town had standing under G. L. c. 21, § 46A, to obtain judicial review of the agency's determinations. [427-428]

In an action under G. L. c. 231A for a declaration that certain rulings of the Division of Water Pollution Control were in violation of G. L. c. 21, § 43, the plaintiff was not required to allege that the rulings were part of a practice or procedure or that the violation had been consistently repeated. [428]

Judicial review of a specific determination of the Division of Water Pollution Control was appropriate where the plaintiff had standing as a "person aggrieved" and there was no procedure for further administrative review. [428-429]

Advisory rulings of the director of the Division of Water Pollution Control purporting to exempt two subdivision developers from a statutory requirement that they obtain permits for sewer connections exceeded the director's authority under G. L. c. 21, § 43, in that the rulings were not made pursuant to any regulation duly promulgated by him. [429]

The town of Holden (Holden) brought this action under G. L. c. 21, § 46A, c. 30A and c. 231A against the Division of Water Pollution Control (division), the town of Rutland (Rutland), the Metropolitan District Commission (MDC), C. B. Blair Builders, Inc. (Blair), and Sunnyhill Estates, Inc. (Sunnyhill), alleging that two advisory rulings by the division exempting Blair and Sunnyhill from obtaining permits to connect to the MDC sewer serving Holden and Rutland were in violation of G. L. c. 21, § 43. *fn1

Holden and Rutland are served by a trunk sewer which is owned and operated by the MDC. Contracts between Holden, Rutland, the predecessor of the MDC, and the city of Worcester (the sewer in question connects to Worcester's trunk sewer) provide for a renegotiation of the terms thereof when the average daily flow of sewage exceeds 750,000 gallons a day. In a letter issued in January, 1976, to the boards of selectmen of Holden and Rutland the division referred to the fact that the trunk sewer serving Rutland and Holden had reached ninety-five per cent of its capacity and that, according to Holden officials, a significant number of septic tank systems in Holden had failed or were likely to fail and were threatening to create public health problems. The division stated it would therefore issue no permits for sewer extensions or connections unless the connection or extension should be necessary to eliminate an existing or imminent nuisance or public health problem or unless infiltration into the sewerage system should be removed in an amount of gallonage at least double that applied for in a permit. In May and June, 1976, respectively, the division issued the advisory rulings in question here, exempting subdivisions being developed by Sunnyhill and Blair in Rutland from the permit requirements of G. L. c. 21, § 43, on the basis that it was "neither appropriate nor equitable" to subject them to those requirements. The connections for those subdivisions would increase the average daily flow in the trunk sewer to 738,000 gallons.

Holden argues that the advisory rulings violate G. L. c. 21, § 43. The defendants argue that Holden has no standing to bring the action. Following a pretrial hearing a Superior Court Judge ruled that Holden had standing to bring the action and denied the defendants' motion to dismiss the complaint. Holden's motion for a preliminary injunction was denied. The trial Judge, adopting the foregoing ruling as to standing, ruled that the director of the division had exceeded his statutory authority in issuing the advisory rulings *fn2 and reported the case to this court under Mass.R.Civ.P. 64, 365 Mass. 831 (1974). *fn3

1. General Laws c. 21, § 46A, inserted by St. 1973, c. 546, § 13, provides that "ny person aggrieved by an order, permit, determination or other action of the director . . . may obtain judicial review. . . ." The defendants contend that Holden is not a "person aggrieved" within the meaning of that provision. To determine whether a party is a "person aggrieved" within the meaning of a statute, it is necessary to look at the purpose of the statute. Westland Housing Corp. v. Commissioner of Ins., 352 Mass. 374, 383 (1967). Gallo v. Division of Water Pollution Control, 374 Mass. 278, 283-284 (1978). The purpose of the Massachusetts Clean Waters Act (Act), of which G. L. c. 21, § 46A, is a part, is to "enhance the quality and value of water resources and to establish a program for prevention, control, and abatement of water pollution." G. L. c. 21, § 27. The requirement that anyone who wishes to discharge pollutants into the waters of the Commonwealth or use any sewer extension or connection must obtain a permit from the director of the division is a means of carrying out that purpose. G. L. c. 21, §§ 42, 43. Id. at 291.

Holden argues that the director's rulings may prevent approval of a connection to the sewerage system for the Jefferson Village area in Holden, the construction of which has been ordered by the Massachusetts Department of Public Health and which is necessary "to eliminate the past, present and potential failures of on-site sewage disposal systems in view of the harmful effect of same on the water supply systems of the MDC, the City of Worcester and the Town of Holden." The complaint alleges that the Jefferson Village sewer connection would add 31,000 gallons a day to the system, more than the remaining capacity if connections for the Sunnyhill and Blair developments are made. *fn4 As Holden's interest in the purity of the water supply is an interest protected by the Act, it is a "person aggrieved" within the meaning of G. L. c. 21, § 46A. *fn5 The defendants argue that the injuries alleged by Holden are remote, speculative and insubstantial and therefore insufficient to establish standing. See United States v. SCRAP, 412 U.S. 669, 688 (1973); O'Shea v. Littleton, 414 U.S. 488, 494 (1974). However, the Superior Court Judge found that if the maximum gallonage is exceeded, Holden could well be foreclosed from tying into the system, which "would create financial problems health hazards . . . for Holden. These spectres are not ephemeral, and create for Holden, in my opinion, enough of an ...


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