, Salem, MA

Local News

September 13, 2012

State: Judge's trash ruling 'inconsistent'

SALEM — A top state official said a judge’s decision in the Salem transfer station case is “inconsistent” with his agency’s view of its own regulations.

Kenneth Kimmell, state commissioner of the Department of Environmental Protection, issued a statement yesterday in reaction to a ruling this week by Superior Court Judge Howard Whitehead.

“The court decision is inconsistent with MassDEP’s long-held interpretation of our regulations,” the DEP commissioner said in a statement. “MassDEP was not a party to the lawsuit, and so the judge did not have the benefit of the legal basis for our interpretation.”

On Monday, Whitehead overturned a 2009 decision by the Salem Board of Health, which in effect approved a plan to clean up the polluted Swampscott Road transfer station in exchange for expanding the operation of the plant.

Whitehead said the board made a mistake when it approved a “minor modification” to a site application permit filed by the city and Northside Carting, the operator of the transfer station. He said the application should have been treated as a “major modification,” a tougher review process.

The judge said the application called for more than increasing the amount of daily tonnage handled by the transfer station, a change that normally is allowed under a minor modification. The applicants, he said, sought to expand the site.

“In essence,” Whitehead wrote, “the defendants’ application seeks to increase the transfer station’s daily tonnage limit and capacity by building a new transfer station capable of processing the increased tonnage.”

Mayor Kim Driscoll said the city applied for a minor modification after conferring with the DEP, the state agency that has been pressuring Salem to clean up the former incinerator site.

Kimmell said his agency is “evaluating our options to determine if we can provide the court” with information on its regulations.

Tom Dalton can be reached at

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