Appeal now up to judge
Casella, opponents make final arguments
August 18, 2009
The court challenge to last year's Board of Health decision granting Casella's wish to expand the landfill went into its final phase Tuesday as the opposing sides presented their arguments to Worcester Superior Court Judge Kenton Walker.
"I think it was clear the judge understands the scope of the issues in front of her," said Casella's attorney Robert Kirsch afterward. "We're glad we finally got the chance to put the case in front of her."
Kirsch, from Wilmer Hale LLP, and the board's attorney Sarah Turano-Flores of Nutter McClennan & Fish LLP both argued that the Board of Health's decision was based on "a very exacting review" of a lot of evidence. To them, the board's 40-plus page decision with 58 conditions adequately reflects the complexity of the issues raised by last spring's hearing process and "protected the public's health, safety and environment."
Flores said the board conducted "an independent review" that was "not just a rubber stamp" of either pro- or anti-Casella arguments, noting they were bound by the fact the law requires approval unless the board determines it cannot create conditions that would ensure such protections.
Plaintiff's attorney Kirstie Pecci of Sturbridge, however, argued that Walker should set aside the board's decision on four grounds. As in previous hearings, she claimed the board "is not legally constituted and therefore lacks jurisdiction," its bird strike and leachate decisions were "arbitrary and capricious," and the decision "illegally effected a major modification" instead of a minor one. As a fallback option, she also claimed the decision came from "an unlawful procedure and should be remanded to the Board of Health" for a new hearing.
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