UNITED MEDICAL WASTE MANAGEMENT, INC.
BOARD OF HEALTH OF the TOWN OF WEBSTER
Date: December 5, 2017
MEMORANDUM OF DECISION AND ORDER ON THE PLAINTIFFâS
MOTION FOR JUDGMENT ON THE PLEADINGS
M. Wrenn, Justice
plaintiff United Medical Waste Management, Inc. ("
United Medical" or " plaintiff") filed the
instant action on May 15, 2017 against the defendant Board of
Health of the Town of Webster (" Board of Health"),
after the Board of Health took " no action" on
United Medicalâs submission of a site plan proposing the
construction of a biomedical waste transfer facility ("
the Waste Facility") in the town of Webster. On August
17, 2017, United Medical filed a motion for judgment on the
pleadings pursuant to Mass.R.Civ.P. 12(c) and Superior Court
Standing Order 1-96, which the Board of Health opposes. The
Court heard arguments from the parties on November 9, 2017,
and subsequently took the matter under advisement. For the
following reasons, the Plaintiffâs Motion for Judgment on the
Pleadings is ALLOWED.
following facts derive from the administrative
Medical sought to construct the Waste Facility at 56
Worcester Road in Webster, Massachusetts. On February 25,
2016, United Medical simultaneously filed with both the
Department of Environmental Protection (" DEP") and
the Board of Health a " BWP S.W. 01-Site Suitability
Report for a New Assignment" for the proposed Waste
Facility (" site assignment application"). Pursuant
to United Medicalâs proposal to both the DEP and the Board of
Health, the Waste Facility would be permitted to accept up to
forty-nine tons of medical waste per day, with an annual
allowance of 9, 800 tons. The Waste Facility would serve as a
transfer station where packaged biomedical waste would be
transported, from one truck to another, to temporarily store
waste. The waste would then be permanently moved off the
Waste Facility by United Medical.
March 29, 2016, after reviewing the site assignment
application, the DEP requested additional materials from
United Medical regarding the proposed Waste Facility and its
operations. On September 7, 2016 and September 27, 2016,
United Medical supplemented the site assignment application
in accordance with the DEPâs request. Upon review of the
supplemental materials, the DEP issued a Notice of
Administrative Completeness of the Site Assignment
Application for United Medical. The DEP also issued a
twenty-one-day public comment period, which was set to end on
January 6, 2017. On February 16, 2017, the DEP issued a
" Report on Site Suitability, " finding a "
positive report regarding the suitability for site
assignment." The DEP also determined that United
Medicalâs site met " the site suitability criteria as
set forth in 310 [Code. Mass. Regs.] [Â§ Â§ ] 16.40(3)(d) and
[16.40(4) ] of the Site Assignment Regulations."
March 20, 2017, the Board of Health held a two-hour public
hearing to address United Medicalâs site assignment
application. At the time of the hearing, the Board of Health
was comprised of three members: David Zalewski ("
Zalewski"), James Avery (" Avery"), and Iwona
Miller (" Miller"). Miller was unavailable at the
public hearing on March 20, 2017, and recused herself from
participation. The Board of Health appointed attorney Gregor
McGregor as the hearing officer. During the hearing, United
Medicalâs Vice President David Ryan (" Ryan"),
along with environmental consultants and engineers, answered
questions posited by the Board of Health. At the close of the
hearing, the Board of Health kept the administrative record
open and continued the hearing.
April 24, 2017, the Board of Health again continued the
hearing. Prior to that hearing, United Medical submitted
modifications to address concerns raised in the initial
public hearing. At the hearingâs close, Avery moved to deny
the site assignment application. He stated that he wanted to
see the site assignment application " as a warrant on a
town meeting" or " a binding referendum at the next
election." Averyâs motion was not seconded. Zalewski
then made a motion for the Board of Health to " approve
the site assignment application." Zalewski stated that
" the site is suitable for the assignment, [and] meets
the criteria contained in the regulations of the [DEP]."
Zalewskiâs motion to approve was also not seconded.
3, 2017, the Board of Health issued a letter to United
Medical stating " that the Board of Health of the Town
of Webster has taken no action on the [Waste Facilityâs site
assignment application] within the regulatory time
Standard of Review
appeal filed by an aggrieved party to a local board of
healthâs decision is conducted pursuant to G.L.c. 30A and,
for the limited purpose of such an appeal, the local board is
considered a state agency and its decision is deemed an
adjudicatory proceeding. See G.L.c. 111, Â§ 150A; Board of
Health of Sturbridge v. Board of Health of Southbridge,
461 Mass. 548, 556 (2012). When reviewing a decision under
G.L.c. 30A, the Court is required to give " due weight
to the experience, technical competence, and specialized
knowledge of the agency, as well as to the discretionary
authority conferred upon it." G.L.c. 30A, Â§ 14(7); see
Doe v. Sex Offender Registry Bd. No. 380316, 473
Mass. 297, 301 n.5 (2015). A court may reverse, remand,
modify, or " compel any action unlawfully withheld or
unreasonably delayed, if [a court] determines that the
substantial rights of any party may have been
prejudiced" by an erroneous agency decision. G.L.c. 30A,
Â§ 14(7); see Cohen v. Board of Registration in
Pharmacy, 350 Mass. 246, 253 (1966) (affirming courtâs
decision ordering board to register a drug store and issue a
permit to the pharmacist to manage it). The appealing party
holds the heavy burden of demonstrating the invalidity of an
agency decision. See Board of Health of Sturbridge,
461 Mass. at 562; Springfield v. Department of Telecomms.
& Cable, 457 Mass. 562, 567-68 (2010); Bagley v.
Contributory Ret. Appeal Bd., 397 Mass. 255, 258 (1986).
applicant seeking to " maintain or operate a site for a
new facility ... shall submit an application for a site
assignment to the local board of health and simultaneously
provide copies to the department and the department of public
health." G.L.c. 111, Â§ 150A; Wood Waste of Boston,
Inc. v. Board of Health of Everett, 52 Mass.App.Ct. 330,
332 (2001) (hereinafter " Wood Waste
"). Within sixty days of receiving the
application, the DEP conducts an initial review, subject to
the standards and criteria promulgated in G.L.c. 111, Â§ 150A
1/2,  and then issues a report commenting on
" any potential impact of a site on the public health
and safety." G.L.c. 111, Â§ 150A; see TBI, Inc. v.
Board of Health of N. Andover, 431 Mass. 9, 11 (2000).
DEP issues a positive report, the local board of health is
required to hold a public hearing within thirty days of
receipt of the DEPâs report. See G.L.c. 111, Â§ 150A;
RicMer Props., Inc. v. Board of Health of Revere, 59
Mass.App.Ct. 173, 173 (2003). The DEPâs decision is not
binding on the local board of health, but the local boardâs
review is subject to the same criteria listed in G.L.c. 111,
Â§ 150A 1/2, as well as 310 Code Mass. Regs. 16.40. See G.L.c.
111, Â§ 150A; TBI, Inc., 431 Mass. at 11-12. Within
forty-five days after the initial public hearing date, the
local board shall render a written decision along with a
statement of reasons articulating its decision, and publish
notice of its decision. G.L.c. 111, Â§ 150A. " A local
board of health shall assign a place requested by an
applicant as a site for a new ...