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Court: State can't just put salt sheds wherever the hell it wants
By adamg on Tue, 12/28/2010 - 12:06pm
The Supreme Judicial Court ruled today local health boards can sue the state over possible well contamination from sheds used to store salt and other de-icing agents.
The state's highest court rejected an argument from the state highway department it was immune from regulation by local health boards under the principle of sovereign immunity, in a case brought by the town of Boxford over a salt shed:
The Legislature has granted to local boards of health the power to "make reasonable health regulations." G.L. c. 111, § 31. The town alleges in its complaint, and we accept as true, that the town, acting through the board, has adopted Code § 202-3 under this statutory authority; and that pursuant to Code § 202-3, the town regulates the placement and construction of private wells. The Legislature also has given local boards of health an express grant of power to regulate nuisances. See G.L. c. 111, § 122 (local "board of health shall examine into all nuisances ... within its town ... and shall make regulations for the public health and safety relative thereto").
The power to enforce local health and environmental laws is integral to the power to regulate. Although certain procedures contemplated by the Legislature for ordering the abatement of local nuisances apply specifically to private premises, the power of the Superior Court to enjoin the maintenance of a nuisance affecting the public health is not similarly limited.
Boxford sued because of nearby private wells contaminated by salt from the shed. Although the state dug new wells for the affected residents, they were shallower than allowed by the town's health regulations, and the town sued to get the shed moved out of town altogether.
At the same time, the court told the town of Boxford it would have to make its case at a trial. The town had sought to have a judge order the state to comply with its demands. The SJC said that when it comes to state departments, a judge can only do that on matters of specific actions a state agency is supposed to take. Determining the location of a salt shed, the court ruled, was "discretionary" rather than "ministerial" and so not subject to a "writ of mandamus."
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Comments
unless it's on Chelsea Creek..
..whoops! My bad. It's not in a shed over there. Just mountainous piles of cyanide-laced road salt in a perverse Cordillera de Mierde (but with a happy Santa traversing the tops) along the Creek. Of course the main issue there is that municipalities around New England are basically storing their salt rent-free in Chelsea while heavy trucks from all over screw up the street and belch diesel fumes as they go back and forth from places like...Boxford, to deliver this crap which spends most of its days in Chelsea after arriving from Africa, Brazil and other exotic locales.
So I guess something that is "discretionary" on the part of the state means it can be "discriminatory" against the people who live in Chelsea. I mean we wouldn't actually store this stuff somewhere appropriate now would we? Not that Boxford should be saddled with it -- but it should be properly stored (not infiltrating groundwater supplies) and closer to the sites of use (i.e., in municipal sheds - or properly designed DOT facilities).
"Writ of mandamus" is that what Gandalf used against the Balrog?
How is that rent free John W?
The towns pay a lot of money for that stuff.
rent
They'd be paying a lot more if they had to store it on their own property and build the appropriate facility to house it. Being able to just call it up on demand means that instead of sending DPW trucks to "the yard" to pick up a load of salt in municipality X, they go down to Chelsea and load up there. For places far away, maybe not worth it (time and gas expense) but for Greater Boston, it's not a bad deal.
The company in Chelsea that imports the salt to their yard got out of having to build a facility to house the sand/salt by basically ignoring the law. Despite law suits the DEP has let them get away with it. Of course salty sand running into ...sea water might not be that big of a deal but the concentrations of cyanide in the anti-caking agent can't be that great for the Creek or for people. The greater environmental injustice is the increased truck traffic going to the site to cart away the salt.
I guess my point was that
This company pays rent and towns pay good money for the stuff.
Towns do store some salt on their property and then order more when they need it. They don't go down to that place for every load that they need, even for towns around Boston. Go to any DPW around here and you will see storage for thousands of tons of this stuff.
You may have a point about the enviornmental side though.
How do you suggest they distribute it?
I assume the salt comes in on freighters? And gets unloaded where it stands now? Is that correct?
If so, how do you suggest they distribute it? That's their business, they're a distributor. The are hundreds of companies that do exactly what they do - they buy large quntities of stuff distribute it elsewhere, which involves trucks. Aren't there tons of fuel tanks in that same area that perform the same function - a holding area for product to be distributed by truck?