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United Medical Waste Management, Inc. v. Board of Health of Town of Webster

Superior Court of Massachusetts, Worcester

December 4, 2017


          File Date: December 5, 2017


          Daniel M. Wrenn, Justice

         The 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 Medical’s 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 Plaintiff’s Motion for Judgment on the Pleadings is ALLOWED.


         The following facts derive from the administrative record.[1]

         United 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 Medical’s 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.

         On 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 DEP’s 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 Medical’s site met " the site suitability criteria as set forth in 310 [Code. Mass. Regs.] [§ § ] 16.40(3)(d) and [16.40(4) ] of the Site Assignment Regulations."

         On March 20, 2017, the Board of Health held a two-hour public hearing to address United Medical’s 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 Medical’s 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.

         On 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 hearing’s 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." Avery’s 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]." Zalewski’s motion to approve was also not seconded.

         On May 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 Facility’s site assignment application] within the regulatory time period."


         I. Standard of Review

         An appeal filed by an aggrieved party to a local board of health’s 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, § 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, § 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, § 14(7); see Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966) (affirming court’s 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).

         II. Statutory Framework

         An 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, § 150A; Wood Waste of Boston, Inc. v. Board of Health of Everett, 52 Mass.App.Ct. 330, 332 (2001) (hereinafter " Wood Waste ").[2] 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, § 150A 1/2, [3] and then issues a report commenting on " any potential impact of a site on the public health and safety." G.L.c. 111, § 150A; see TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 11 (2000).

         If the DEP issues a positive report, the local board of health is required to hold a public hearing within thirty days of receipt of the DEP’s report. See G.L.c. 111, § 150A; RicMer Props., Inc. v. Board of Health of Revere, 59 Mass.App.Ct. 173, 173 (2003). The DEP’s decision is not binding on the local board of health, but the local board’s review is subject to the same criteria listed in G.L.c. 111, § 150A 1/2, as well as 310 Code Mass. Regs. 16.40. See G.L.c. 111, § 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, § 150A. " A local board of health shall assign a place requested by an applicant as a site for a new ...

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