Mass. Recycler Appeals Expansion Ruling

E.L. Harvey & Sons and neighbors opposing the recycler's expansion have one thing in common: they both think the health board's decision to allow the expansion exceeded its authority and was based on errors of fact and law. (Read earlier story)

But the two parties disagree about what those errors were and what should be done to rectify the situation.

In a recent appeal of the board's decision in Worcester Superior Court, Harvey contested four conditions imposed with the decision.

Neighbors opted not to appeal, but took advantage of their right to respond to Harvey's appeal by including a request to overturn the board's decision.

They recommended the court "order, adjudge, and determine that the decision of the Board approving (Harvey's) application for site assignment was unlawful and erroneous."

In the response, prepared by lawyers Gregor McGregor and Michael O'Neill of the Boston law firm McGregor & Associates, neighbors argue the board did not sufficiently consider negative effects to conservation land on the neighboring Piccadilly Mill Open Space Trust.

Additionally, they said the board: used expired site assignment regulations when newer ones were already in effect; failed to determine the legality of using land owned by the Massachusetts District Commission; and failed to consider Harvey's existing facility in Westborough.

Harvey submitted its application for site assignment three weeks before the state tightened regulations for such proposals. The Department of Environmental Protection ruled two days before the change date that Harvey's application was complete and could proceed with permitting.

As such, the Board of Health used the old, less-stringent, regulations when evaluating the project, saying its "hands were tied."

Finally, neighbors said Harvey delivered the "summons and complaint ... at the beginning of the holiday season with no identification of the persons to whom they were directed or explanation as to why they were being served. This served to confuse the (neighbors) and chill their holiday seasons."

Harvey's attorney, Stephen Richmond, said the delivery of the appeal was routine. "A requirement of the procedural rules is that any party to a proceeding be served with a copy of the appeal," Richmond said.

Both the appeal and response followed a 35-hour public hearing that took place in October. Harvey wants to expand its Westborough facility to an additional 40 acres in Hopkinton.

The board approved the expansion, setting about 30 conditions.

According to Harvey, some of the concerns overstepped the initial conditions set by the town's Board of Health. While the company hopes to have the issue resolved with an out-of-court settlement, the issue will likely be heading to a court. Harvey has appealed the following four conditions, claiming they exceed the board's authority:

Restricting truck traffic on Elm Street from the existing facility in Westborough.

Monitoring and cleaning ground water associated with the former Hopkinton landfill, which was capped in 1986.

Requiring specific placement of doors to a construction and demolition recycling building.

Prohibiting overnight parking of full trucks outdoors on site.

While the first hurdle has been crossed, Harvey says that more local meetings will have to be held before the company will be able to break ground on the project. The best-case scenario for the company now is to have groundbreaking on the long-awaited project started within the next two years.