Hootstein v. Coxe

5 Mass. L. Rptr. 620
CourtMassachusetts Superior Court
DecidedMay 22, 1996
DocketNo. CA 95048
StatusPublished

This text of 5 Mass. L. Rptr. 620 (Hootstein v. Coxe) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hootstein v. Coxe, 5 Mass. L. Rptr. 620 (Mass. Ct. App. 1996).

Opinion

Murphy, J.

The plaintiffs bring this action challenging the determination by defendant Trudy Coxe, as Secretary of the Executive Office of Environmental Affairs (“Secretary”), that defendant Northfield Solid Waste Recovery, Inc. (“NSWR”) was not required to prepare a Supplemental Environmental Impact Report regarding alleged changes in its project proposal. The plaintiffs further ask the court to enjoin construction of the proposed solid waste recovery facility. Both defendants now move for summary judgment. For the reasons set forth below, the motions for summary judgment of both defendants are allowed.

BACKGROUND

NSWR proposes to construct a solid waste and sewage sludge recycling and composting facility in Northfield, Mass. Pursuant to the review process required under the Massachusetts Environmental Policy Act (“MEPA”), G.L.c. 30, §§61-62H, NSWR submitted an Environmental Notification Form to the Executive Office of Environmental Affairs (“EOEA”) on July 22, 1992. On September 9, 1992, the Secretary issued a certificate of her determination that the proposed project required preparation of an Environmental Impact Report (“EIR”). On or about April 30, 1993, NSWR submitted a Draft EIR, availability of which was noticed in the Environmental Monitor on May 25, 1993. After review of the EIR and consideration of public comment, the Secretary issued a certificate of compliance on the Draft EIR on July 15, 1993. On or about September 6, 1993, NSWR submitted a Final EIR, which was noticed in the Environmental Monitor on September 24, 1993. On November 1, 1993, the Secretary certified that the Final EIR did not adequately and properly comply with MEPA and required preparation and submission of a Supplemental Final EIR. NSWR submitted its Supplemental Final EIR on or about December 13, 1993. On January 28, 1994, the Secretary certified that the Supplemental Final EIR complied with MEPA. In the certificate, the Secretary noted that

Although a significant amount of work and detail is still required of the proponent to attain required state permits, I am comfortable that the MEPA process has run its course and has afforded substantial opportunities for public comment. Therefore, with my finding that the FEIR is adequate and that it has included an identification of the project’s environmental impacts and how the same can be minimized and mitigated, the proponent is authorized to move forward to state agency permitting. This means the proponent is now subject to two other sets of environmental reviews: the site assignment process, administered jointly by the Northfield Board of Health, DEP and Department of Public Health; and the solid waste management facility (construction) permitting process at DEP.
I specifically require that Section 61 findings be submitted to MEPA for all state agency permits issued for this project. These findings must conclude that all feasible measures have been taken to avoid or minimize damage to the environment. . .
I note that the proponent will be required to file a Notice of Project Change (301 CMR 11.17) for any tonnage above 200 TPD as well as for any significant changes to the project’s proposed design or operation.

In May of 1994, NSWR was required to submit a Notice of Project Change regarding modification of the site layout. On June 9, 1994, the Secretary certified that the changes did not require preparation of a Supplemental EIR.

On January 9, 1995, the Secretary issued a Certificate on the Notice of Project Change which is the subject matter of this action. The Secretary determined that preparation of a supplemental EIR was not [621]*621required after investigation of the following matters of concern:

conflicting information about the proposed, short and long term capacity of the facility, and the possibility of project segmentation contrary to the provisions of MEPA;
lack of clarity about the sources of water and fuel for the facility;
the status of an on-site disposal area for railroad ties;
proximity of one or more water supply wells; and
proposed state financial assistance from the Massachusetts Industrial Finance Agency (MIFA).

The Secretary determined that only the MIFA financing constituted a “project change” under MEPA. She noted the confusion around the question of capacity and that NSWR had expressed a desire to eventually operate at higher capacity. Based upon her confirmation of the current intention of NSWR, and the 200 ton per day limit on approvals from DEP and the Zoning Board of Appeals, the Secretary accepted “the representation that the facility’s capacity will not expand beyond what was reviewed in the MEPA process.” As to the railroad tie disposal question, resolution was left to the Department of Environmental Protection (“DEP”), as part of its construction permitting process. In reference to concerns about drinking water sources, the Secretary indicated that DEP had confirmed that

the facility as proposed is not located in or over a designated potential water supply (aquifer), a DEP-approved Zone II water supply protection area or an Interim Wellhead Protection Area (IWPA) for the supply well of the nearby regional school.

She also asked that “DEP take into consideration relevant new information developed by other interested parties and their consultants.”

On March 8, 1995, the plaintiffs filed this action, challenging the validity of the Certificate on the Notice of Project Change dated January 9, 1995. They raise that challenge under four counts: (I) G.L.c. 249, §4— Certiorari; (II) G.L.c. 214, §7A — Damage to the Environment; (III) G.L.c. 231, §1 Declaratory Judgment; and (IV) G.L.c. 30, §§61-62H — MEPA.

DISCUSSION

This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c); 365 Mass. 824 (1974). The moving party bears'the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A court will grant summary judgment to the party entitled to judgment as a matter of law if both parties have moved for summary judgment and “there is no real dispute [concerning] the salient facts” or if a case only involves a question of law. Cassesso v. Commissioner of Correction, supra.

The plaintiffs, through each of the four counts, suggest possible alternative sources of jurisdiction, all of which are challenged by the defendants. It is well-established that MEPA, through G.L.c. 30, §62H, “does not purport to grant jurisdiction" on the Superior Court, but rather provides for a limitations period on the commencement of actions. Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 613 (1988); Town of Walpole v. Secretary of the Executive Office of Envtl. Affairs, 405 Mass. 67, 70 (1989).

General Laws c. 214, §7A provides for civil actions in Superior Court to determine whether damage to the environment is occurring or is about to occur and to restrain persons causing such damage.

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Related

Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
Cummings v. Secretary of Environmental Affairs
524 N.E.2d 836 (Massachusetts Supreme Judicial Court, 1988)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Bonan v. City of Boston
496 N.E.2d 640 (Massachusetts Supreme Judicial Court, 1986)
Cassesso v. Commissioner of Correction
456 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1983)
Town of Holden v. Division of Water Pollution Control
376 N.E.2d 1259 (Massachusetts Appeals Court, 1978)
Villages Development Co. v. Secretary of Executive Office of Environmental Affairs
571 N.E.2d 361 (Massachusetts Supreme Judicial Court, 1991)
Canney v. Municipal Court
335 N.E.2d 651 (Massachusetts Supreme Judicial Court, 1975)
Town of Walpole v. Secretary of the Executive Office of Environmental Affairs
537 N.E.2d 1244 (Massachusetts Supreme Judicial Court, 1989)
Williams v. Secretary of Executive Office of Human Services
414 Mass. 551 (Massachusetts Supreme Judicial Court, 1993)

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Bluebook (online)
5 Mass. L. Rptr. 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hootstein-v-coxe-masssuperct-1996.