1 Hazardous waste is defined in Mass. Gen. Laws Ann. ch. 21D, § 2 (West 1981) as a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness or pose a substantial present or potential hazard to human health, safety or welfare or to the environment when improperly treated, stored, transported, used or disposed of, or otherwise managed, however not to include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act of 1967 as amended, or source, special nuclear, or by-product material as defined by the Atomic Energy Acts of 1954.

2 See National Conference of State Legislatures, Hazardous Waste Management: A Survey of State Laws 1976-1980, at II-2 (1980); see also Bacow & Milkey, Overcoming Local Opposition to Hazardous Waste Facilities: The Massachusetts Approach, 6 Harv. Envtl. L. Rev. 265, 270, nn.37-40 (1982). See, e.g., Ind. Code § 13-7-8.6-13 (Michie 1986); N.Y. Envtl. Conserv. Law §§27-1101-1107 (McKinney 1984 & Supp. 1986); Wis. Stat. Ann. §§ 144.44-.445 (West 1985).

3 See A. Ryan, Approaches to Hazardous Waste Facility Siting in the United States 2 (1984) (A report to the Massachusetts Hazardous Waste Facility Site Safety Council).

4 Massachusetts Special Commission on Hazardous Waste, the Procedures and Guidelines for Siting Hazardous Waste Facilities in the Commonwealth 16 (June 25, 1980) (First Interim Report).

5 Conversation with Walter Murphy, Director of Safeways Management, Boston, Massachusetts (September 26, 1986). See infra text accompanying notes 24-40.

6 Department of Environmental Management, Bureau of Solid Waste Disposal, Hazardous Waste Management in Massachusetts Statewide Environmental Impact Report 3-9 (1983).

7 Mass. Gen. Laws Ann. ch. 21D § 1-19 (West 1981) (added by St. 1980, ch. 508, § 8) (hereinafter cited as “the Act“).

8 See supra note 3.

9 Bacow & Milkey, supra note 2, at 305.

10 Loth, Woburn, Science and the Law, Boston Globe, Feb. 9, 1986, (Magazine), at 1.

11 Council on Environmental Quality, Environmental Trends 85 (1981).

12 Risk Assessment at Hazardous Waste Sites 28-29 (F.A. Long & G. Schweitzer eds. 1982). See also Loth, supra note 10, at 47.

13 E.A. Long & G. Schweitzer, supra note 12, at 28. See infra text accompanying footnotes 25-27.

14 Id.

15 Id.

16 Id. at 29

17 Id.

18 Id.

19 Id.

20 See id.

21 Massachusetts Department of Environmental Management, Bureau of Solid Waste Disposal, Hazardous Waste Management in Massachusetts Draft Environmental Impact Report 5:1 (1981).

22 Id. at ch. 5.

23 Council on Environmental Quality, supra note 11, at 90-91.

24 Department of Environmental Management, supra note 21, at §§ 5:2—5:8.

25 Id. at 5:8.

26 Council on Environmental Quality, supra note 11, at 90-91.

27 Id.

28 Department of Environmental Management, supra note 21, at §§ 5:2—5:8.

29 Council on Environmental Quality, supra note 11, at 90-91.

30 Id.

31 Department of Environmental Management, supra note 21, at 5:7.

32 Council on Environmental Quality, supra note 11, at 90-91.

33 Department of Environmental Management, supra note 21, at §§ 5:4—5:7.

34 Id. at 5:8.

35 Council on Environmental Quality, supra note 11, at 90-91.

36 Department of Environmental Management, supra note 21, at 5:8.

37 Council on Environmental Quality, supra note 11, at 90-91.

38 Department of Environmental Management, supra note 21, at 5:8.

39 Council on Environmental Quality, supra note 11, at 90-91.

40 Department of Environmental Management, supra note 21, at 5:7.

41 See Council on Environmental Quality, supra note 11, at 90-91.

42 Mass. Gen. Laws Ann. ch. 21D, §§ 1-19 (West 1981). Massachusetts has taken a three pronged attack against the hazardous waste problem. The first is the Massachusetts Hazardous Waste Management Act, Mass. Gen. Laws Ann. ch. 21C, §§ 1-14 (West 1981) (originally enacted as 1979 Mass. Acts 704, § 2), which regulates the movement and storage of hazardous waste. The second is the Massachusetts Oil and Hazardous Material Release Prevention Act, Mass. Gen. Laws Ann. ch. 21E, §§ 1-13 (West Supp. 1986) (originally enacted as 1983 Mass. Acts 7, § 5), which allows the state to recover clean up costs from persons responsible for releases of oil and hazardous materials. In addition, 1983 Mass. Acts 7, § 4, codified in Mass. Gen. Laws Ann. ch. 21C, § 4 (West Supp. 1986), establishes fees for transportation of hazardous waste to be used for its clean up program. The third prong is the Hazardous Waste Facility Siting Act, Mass. Gen. Laws Ann. ch. 21D, §§ 1-19 (West 1981) (originally enacted as 1980 Mass. Acts ch. 508, § 8), which is the focus of this Note.

43 The right to home rule in the Massachusetts Constitution:

Mass. Const. Amend. Art. 2, § 1, amended by Art. 89, § 235.

44 For an in-depth discussion of the purposes of the Act, see M. O'hare, L. Bacow & D. Sanderson, Facility Siting and Public Opposition 182-215 (1983). See also Provost, The Massachusetts Hazardous Waste Facility Siting Act: What Impact on Municipal Power to Exclude and Regulate?, 10 B.C. Envtl. Affairs L. Rev. 715 (1982-83); Bacow, & Milkey, , Overcoming Local Opposition to Hazardous Waste Facilities: The Massachusetts Approach, 6 Harv. Envtl. L. Rev. 265 (1982)Google Scholar. These articles are excellent explications of the existing Massachusetts siting law.

45 Mass. Gen. Laws Ann. ch. 21D, § 4 (West 1981).

46 Id.

47 Mass. Gen. Laws Ann. ch. 21C, § 7 (West 1981) (originally enacted as 1979 Mass. Acts 704, § 2).

48 Mass. Gen. Laws Ann. ch. 2ID, § 3 (West 1981).

49 Id. at § 7.

50 Id.

51 Id. at § 5.

52 Id. at § 10; Mass. Admin. Code tit. 990, §§ 10.02-.03 (1985).

53 Mass. Gen. Laws Ann. ch. 210, § 15 (West 1981).

54 Id. at § 12.

55 Mass. Gen. Laws Ann. ch. Ill, § 150B (West 1981) (originally enacted as 1980 Mass. Acts 508, § 4).

56 Mass. Gen. Laws Ann. ch. 21D, § 17 (West 1981),

57 Id. at § 16.

58 Mass. Gen. Laws Ann. ch. 40A, § 9 (West 1981 & Supp. 1986), amended by 1980 Mass. Acts 508, § 5.

59 Id.

60 See supra note 3, at 2-22.

61 Id.

62 A non-site specific NOI is allowed when a developer has not proposed a site in his NOI. In this instance, the Department of Environmental Management may solicit suggestions for sites. Mass. Gen. Laws Ann. ch. 21D, § 9.

63 Boston Globe, Jan. 16, 1985, at 23, col. 4.

64 Id.

65 Boston Globe, June 15, 1984, at 1, col. 1.

66 Id.

67 Town of Warren v. Hazardous Waste Facility Siting Council, 392 Mass. 107, 466 N.E.2d 102 (1984).

68 Town of Warren, 392 Mass. at 112, 466 N.E.2d at 107.

69 Id. at 113, 466 N.E.2d at 107.

70 Id.

71 Id.; see supra note 49 and accompanying text.

72 Warren By-Laws, art. x, § 8, cited in Town of Warren, 392 Mass. at 113, 466 N.E.2d at 107.

73 Warren By-Laws, art x, § 9, cited in Town of Warren, 392 Mass. at 114,466 N.E.2d at 107.

74 Warren By-Laws, art. ix, § 12, cited in Town of Warren, 392 Mass. at 113, 466 N.E.2d at 107.

75 Town of Warren, 392 Mass. at 115, 466 N.E.2d at 108.

76 Id. at 116, 466 N.E.2d at 109.

77 Id.

78 Id. at 122, 466 N.E.2d at 112; see Mass. Gen. Laws Ann. ch. 40A, § 9 (West 1981).

79 Town of Warren, 392 Mass. at 122, 466 N.E.2d at 112.

80 Id.

81 Id.

82 Id. at 120, 466 N.E.2d at 111. Though not discussed, the court found that the Act was enacted in accordance with the Home Rule Amendment's section eight procedure. The lower court found that the Act, by its own language, followed section eight's requirement that “general laws … apply alike to all cities or to all towns… .” Town of Warren v. Hazardous Waste Facility Siting Council, No. 82-21740 (Mass. Super. Ct. Jan. 5, 1983).

83 Town of Warren, 392 Mass. at 122, 466 N.E.2d at 112.

84 Id. at 120, 466 N.E.2d at 111.

85 Id.

86 Id. at 122, 466 N.E.2d at 112.

87 Id.

88 Id.

89 Town of Warren, 392 Mass. at 121, 466 N.E.2d at 111. In so holding, the court stated, “To hold otherwise would impute to the Legislature an intent to Balkanize the Commonwealth … . “Id., citing Pereira v. New England Lwo Co., 364 Mass. 109, 121, 301 N.E.2d 441, 448 (1973).

90 Town of Warren, 392 Mass. at 122, 466 N.E.2d at 112.

91 Id. at 123, 466 N.E.2d at 113.

92 Id. at 123, 466 N.E.2d at 112.

93 Id. at 123, 466 N.E.2d at 112-13.

94 Id. at 124, 466 N.E.2d at 113.

95 Id. at 118, 466 N.E.2d at 110.

96 Id. at 115, 466 N.E.2d at 108.

97 Id.

98 Id.

99 Mass. Gen. Laws Ann. ch. 30A, § 1 (West Supp. 1986).

100 Town of Warren, 392 Mass. at 116, 466 N.E.2d at 109.

101 Id. at 118, 466 N.E.2d at 110.

102 Id.

103 Id. at 116, 466 N.E.2d at 109.

104 M. O'hare, L. Bacow & D. Sabderson, supra note 44, at 189-90. Although the language of the Act is silent as to the extent of the “feasible and deserving” determination, (Mass. Gen. Laws Ann., ch. 2ID, § 7), the statutory scheme implies that the determination be limited. The legislature allowed the Council only fifteen days after receipt of a completed NOI to rule whether a proposal is “feasible and deserving.” Id. The consequence of an affirmative decision is simply to make technical assistance grants available to the town so that the multi-step process for evaluating proposals may proceed. Id. The Court, in the Warren case, noted in dictum that the feasibility determination was an early step in the siting process. Town of Warren, 392 Mass, at 115, 466 N.E.2d at 108. Finally, the language of the Act itself, “feasible and deserving,” indicates an intent that the Council should act merely as a screening device to divert grossly inappropriate proposals from the elaborate and costly siting process.

105 The conflict between the public's need for a detailed substantive review early in the process and the Act's intent to remove opposition through the application of an unexacting initial review has led to the suggestion that the “feasible and deserving” review be abolished and has prompted regulatory tinkering. A member of the Council and author of a model statute similar to the Act has argued that a better approach would be to require the developer to pay a fee at the filing of the NOI. M. O'hare, L. Bacow & D. Sabderson, supra note 44, at 190. Bacow explains, “The purpose of the fee would be to screen out frivolous proposals. By delaying the first administrative review of the merits of a proposal until later in the process, the fee might have the salutary effect of discouraging the staking out of positions.” Id.

On April 29, 1982, the Council and the DEM jointly promulgated regulations pursuant to the Act. Regulations for Administration of the Massachusetts Hazardous Waste Facility Siting Act, Mass. Admin. Code tit. 990, §§ 1.00-16.00 (1985). In the preamble to the regulations, the Council noted that “reconciling [the] two opposing points of view” regarding the “feasible and deserving determination” was the Council's “single most difficult task … in drafting its regulations.” “After consideration of all the arguments, the Council remains convinced that the feasible and deserving determination was intended by the legislature to be a preliminary screening device, with the detailed environmental and safety reviews to be undertaken by DEQE and the local boards of health only after the necessary studies have been completed and a siting agreement negotiated.” Preamble to Mass. Admin. Code tit. 990, §§ 1.00-16.00 (1985) (Preamble unpublished). The Council, however, desiring to be “not unsympathetic” to opposing concerns, added a few minor modifications.

Noting that it would be greatly aided by input from the public at large, the Council has provided for two public comment periods, after submission of a NOI and at the close of the period for suggestion of sites. Mass. Admin. Code tit. 990, § 6.03(1)-(2) (1985). The Council has also listed a set of non-exclusive criteria applicable to all “feasible and deserving” determinations on a NOI. The criteria includes a review of the proposed technology, the need for the facility in the Commonwealth, the developer's financial resources and past practices, and the applicability of other environmental laws or regulations that are inconsistent with the proposed site (e.g., a site may not be located within lands designated as “scenic and recreational rivers and streams of the Commonwealth.”). Mass. Admin. Code tit. 990, § 5.04(b) (1985). Lands are designated as “scenic and recreational rivers” pursuant to Mass. Gen. Laws Ann. ch. 21, § 17B (West 1981).

106 Boston Globe, May 15, 1983, at 1, col 5.

107 Mass. Gen. Laws Ann. ch. 2 Id, § 15 provides for arbitration under the provisions of ch. 251. Judicial review of an arbitration award is governed by the provisions of the Uniform Arbitration Act for Commercial Disputes. This act provides for review in the limited circumstances involving fraud, demonstrable partiality, or an excess of powers on the part of the arbiter. However, since the Act compels arbitration, the Court may require a higher standard of review. See Bacow & Milkey, supra note 2.

108 M. O'hare, L. Bacow & D. Sabderson, supra note 44, at 186. See also Stablex Corp. v. Town of Hookset, 122 N.H. 1091, 456 A.2d 94 (1982). In Stablex Corp., New Hampshire was faced with the same issues as presented in the Warren case. The New Hampshire Supreme Court, however, went much further than the Supreme Judicial Court, by ruling that the field of hazardous waste regulation had been preempted by the State. Stablex Corp., 122 N.H. at 1101-04, 456 A.2d at 100-01. “We find that the legislature, responding to the options offered by the federal government in the Resource Conservation and Recovery Act of 1976, devised a comprehensive and detailed program of statewide regulation, which on its face must be viewed as preempting any local actions having the intent or the effect of frustrating it.” Id. at 1101-01, 456 A.2d at 100.

109 Town of Warren, 392 Mass. at 122, 466 N.E.2d at 112.

110 Id.; see supra notes 58 & 34 and accompanying text.

111 Mass. Gen. Laws Ann. ch. 21D, § 16 (West 1981).

112 Bd. of Appeals v. Housing Appeals Comm'n., 363 Mass. 339, 294 N.E.2d 393 (1973).

113 Mass. Gen. Laws Ann. ch. 131, § 40A (West 1981).

114 For example, the Toxic Substance Control Act contains a provision that local regulations are not preempted when “adopted under the authority of the Clean Air Act or any other federal law.” 15 U.S.C. § 2617(a)(2)(B)(ii) (1976 & Supp. IV 1980). Thus, certain municipal actions taken pursuant to the federal statutory provision will be upheld. See City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958); SED, Inc. v. City of Dayton, 519 F. Supp. 979, 981 (S.D. Ohio 1981).

115 wink the Resource Conservation and Recovery Act suggests that states have dispositive authority over hazardous waste, see infra note 158, the Toxic Substance Control Act provides for local regulations pursuant to “other federal law.” See supra note 114. The problems of competing state statutes and local limitations under federal statute are beyond the scope of this paper, although they deserve exploration in another context.

116 Restatement (Second) of Torts § 821B (1977).

117 See Mayor of Cambridge v. Dear, 300 Mass. 174, 175, 14 N.E.2d 163, 165 (1938).

118 Restatement (Second) of Torts § 821D (1977).

119 See Weinstein v. Lake Pearl Park, Inc., 347 Mass. 91, 95, 196 N.E.2d 638, 641 (1964).

120 Restatement (Second) of Torts § 822 (1977).

121 See, e.g., Hub Theatre, Inc. v. Massachusetts Port Authority, 370 Mass. 153, 346 N.E.2d 371 (1976); Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371 (1914); Rogers v. Elliot, 146 Mass. 349, 15 N.E. 768 (1888).

122 For a case expanding nuisance theory in Massachusetts, see Stop & Shop Companies v. Fisher, 387 Mass. 889, 444 N.E.2d 368 (1983) (there may be a recovery for public nuisance now on showing of substantial impairment of access and special harm, without showing physical damage to the plaintiff's property).

123 443 A.2d 1244 (R.I. 1982)

124 Id. at 1246.

125 Id. at 1247

126 Id. at 1249.

127 Village of Wilsonville v. SCA Services, Inc., 86 I11.2d 1, 426 N.E.2d 824 (1981). The court also stated that “if the possibility is merely contingent or uncertain [the plaintiff] may be left to his remedy after the nuisance has occurred.” Id. at 26, 426 N.E.2d at 836 (citing Prosser, Torts § 90 at 603 (4th ed. 1971)).

128 Village of Wilsonville, 86 I11.2d at 14, 426 N.E.2d at 831.

129 Id. at 26-27, 426 N.E.2d at 836-37.

130 The Massachusetts Supreme Judicial Court recently held that the scheme for regulating hazardous waste contained in Mass. Gen. Laws Ann. ch. 21, § 27 (West 1981) does not supplant the common law. Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d 987 (1985).

131 See supra notes 117-22 and accompanying text.

132 42 U.S.C.A. § 4321 (West 1977).

133 42 U.S.C.A. § 4331(a).

134 See 42 U.S.C.A. § 4332; see also Calvert Cliffs’ Coordinating Comm., Inc. v. United States Atomic Energy Comm'n., 449 F.2d 1109, 1112 (D.C. Cir. 1971).

135 42 U.S.C.A. § 4332(2)(C).

136 Id.

137 Id.

138 Id.

139 Id.

140 Id.

141 Id.

142 42 U.S.C. § 4332(D).

143 See Environmental Defense Fund, Inc. v. Corps of Engineers, United States Army, 470 F.2d 289, 295 (8th Cir. 1972), cert, denied, 412 U.S. 931 (1973).

144 See Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 353 (8th Cir. 1973); (4th Cir. 1973); Environmental Defense Fund, Inc., 470 F.2d at 300; Environmental Defense Fund, Inc. v. Hardin, 325 F. Supp. 1401, 1404 (D.D.C. 1971).

145 Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 786-87 (D.C. Cir. 1971).

146 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 6.105(f) (1986).

147 See, e.g., Hanly v. Kleindienst, 471 F.2d 823, 828 (2d Cir. 1972), cert, denied, 412 U.S. 908 (1973).

148 Compare Cabinet Mountains Wilderness/Scotchman's Park Grizzly Bears v. Peterson, 685 F.2d 678, 683 (D.C. Cir. 1982) (arbitrary and capricious standard), with Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1177 n.24 (9th Cir. 1982) (reasonableness standard).

149 In Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973), the court stated “[t]he spirit of the Act would die aborning if a facile, ex parte decision that the project was minor or did not affect the environment were too well shielded from impartial review.“

150 See supra note 105.

151 Md. Nat. Res. Code Ann. §§ 3-701-713 (Michie 1983).

152 Id. at § 3-705.

153 Id.

154 Id. at § 3-705(b).

155 Id. at § 3-705(d). In Browning-Ferris Inc. v. Anne Arundel County, 292 Md. 136, 153, 438 A.2d 269, 277 (1981), the court noted that with the enactment of the Hazardous Waste Facility Siting Program, the legislature indicated its intent that counties may, under certain circumstances, enact their own hazardous waste disposal programs, though if a Certificate of Public Necessity is obtained, the site would be completely exempt from local ordinances.

156 Md. Nat. Res. Code Ann. § 3-712(d). This presumption for a Board decision does not exist if the decision is clearly shown to be unconstitutional, made on unlawful procedure, is arbitrary or capricious, or affected by other legal error.

157 The preemption approach is not without criticism. First, local governments may gain an exemption from a statute preempting all local authority by using their power in the state legislature. In fact, when the Massachusetts legislature was considering a bill to preempt localities from obstructing the siting of a hazardous waste facility, the bill was amended to exclude three towns under consideration for siting at that time. Representative Nicholas Costello (D-Amesbury), Representative Theodora Aleixo Jr. (Taunton), and Senator Robert Wetmore (D-Barre) introduced legislation to exempt Amesbury, Taunton, and Sturbridge from consideration as potential locations for hazardous waste facilities. Subsequently, the legislature decided against preemption and instead passed the Massachusetts Act. This incident demonstrates the potential for politically powerful localities to eviscerate the preemption approach through legislative exemptions. Although this possibility exists, legislators can be held accountable at the ballot box. In contrast, by diffusing state power and relying on negotiated compensation, the Act provides little or no accountability of public officials. The total preemption approach requires a strong state legislature that would grant exemptions sparingly.

158 This Note has confined itself to a discussion of the implementation of state legislation as a means of preempting a locality. With respect to federal preemption of state legislation, the field of hazardous waste has not been preempted by the federal government. Thus, states are free to regulate hazardous waste under their police power. A decision by the United States Supreme Court in 1978 ruled on the issue of federal-state relations in the field of solid waste. The case of City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), involved a New Jersey statute that prohibited importation of most solid or liquid waste into the state. The law was enacted in response to the use of New Jersey landfills for the disposal of waste from cities in Pennsylvania and New York. The Court struck down the statute because it violated Congress’ dormant commerce power. Id. at 628. The majority opinion by Justice Stewart described the law as “basically a protectionist measure” rather than a way of resolving legitimate local concerns within the state's police power. Id. at 624.

The decision's emphasis on invalidating protectionist legislation suggests that the Court may not look favorably upon a state scheme that frustrates the siting of hazardous waste facilities. It is unlikely, however, that the Court would strike down a state siting scheme unless the statute discriminated against out-of-state waste.

The federal legislation dealing with hazardous waste is the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987 (RCRA), which authorized the Environmental Protection Agency to promulgate national rules and regulations governing the identification, generation, storage, treatment, and disposal of hazardous waste. Id. at §§ 6921-6924. The core of RCRA is a permitting program, requiring owners or operators of hazardous waste facilities to satisfy strict standards. Id. at § 6925. Under RCRA, individual states are given the authority to enforce the permit program, as well as to improve and develop state programs in conformity with federal statutes. See, e.g., H.R. Rep. No. 94-1491, 94th Cong., 2d Sess. 24 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 6238, 6262 (“It is the Committee's intention that the States are to have primary enforcement authority and if at anytime a State wishes to take over the hazardous waste program it is permitted to do so, provided that the State laws meet the Federal minimum requirements for both administering and enforcing the law.“). The Court in City of Philadelphia noted that the Resource Conservation and Recovery Act does not preempt control of a state's siting process. City of Philadelphia, 437 U.S. at 620 n.4.

159 Recently, two bills were proposed in the Massachusetts legislature which address these shortcomings. The first, and more significant, H.R. 5306 (1986), would establish a public corporation to site, operate, and own hazardous waste facilities. The second, S. 1073 (1986), would require DEM to provide a detailed state-wide hazardous waste management plan.

160 One proponent of the Act laments, “[W]ith all of its faults, the Massachusetts statute is still an admirable attempt to solve one of society's most perplexing problems.” Bacow & Milkey, supra note 2, at 305.