BOARD OF HEALTH OF HOLBROOK vs. STANLEY A. NELSON & another. [Note 1]

KIRK, J. The defendant John J. Duane Company, Inc. (Duane), whose business is the demolition of buildings, is the lessee of five acres of a forty-seven acre tract owned by the defendant Nelson. The plaintiff board, under G. L. c. 111, Section 150A, seeks to enjoin Duane from using, and Nelson from permitting the use of, the leased land in Holbrook as a dumping ground. The master to whom the case was referred concluded that the defendants were using the site as a dumping ground in violation of G. L. c. 111, Section 150A. [Note 2] The defendants appeal from a decree granting the injunction.

The master found the following: Since June 17, 1964, Duane has daily deposited on the site twenty-five to thirty-five loads of debris, each load consisting of five to seven tons. Although the debris was made up chiefly of lumber from demolished buildings, it included large quantities of brick, plaster, wire lath, pipe, and, occasionally, refrigerators, tires and ashes. The site was never assigned as a dumping ground by the board of health. The town's fire chief, acting under G. L. c. 48, Section 13, as amended by St. 1964, c. 303, [Note 3] at Nelson's request on Duane's behalf, granted permission,

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if weather conditions were suitable, to burn the debris in the open air for two days at a time. Fire control measures were imposed as a condition to the permission. Unburned materials were removed when the fires were extinguished.

The defendants contend that (1) demolition debris is not "garbage, rubbish or other refuse" as specified by G. L. c. 111, Section 150A, and therefore the site is not a dumping ground requiring an assignment as such by the board under Section 150A; (2) G. L. c. 48, Section 13, as amended, relating to open air fires, governs exclusively the burning of demolition debris, and the requirements of the statute have been met; and (3) the plaintiff's bill is barred by laches.

The contentions are without merit.

(1) Whether with or without noncombustibles, the deposited debris was "rubbish or other refuse" under any definition of either word, Mile Road Corp. v. Boston, 345 Mass. 379, 382-383, and therefore the use of the site for the deposit of the named materials made it a dumping ground within G. L. c. 111, Section 150A. As such it could not lawfully be established or maintained unless assigned by the board of health. (2) General Laws c. 48, Section 13, as amended, does not remove demolition dumps from the provisions of G. L. c. 111, Section 150A. It forbids outdoor burning anywhere, including at an assigned dump, without permission of the fire chief. It provides that, when the burning of demolition material is to be done anywhere, additional safeguards may be imposed by the fire chief under G. L. c. 48, Section 13. Permission to burn under the latter statute does not dispense with the requirement of G. L. c. 111, Section 150A, that the site be assigned as a dumping ground by the board of health. (3) The defence of laches is not available to the defendants where the proceeding is brought by an authorized public agency to enforce the laws of the Commonwealth. Lincoln v. Giles, 317 Mass. 185, 187. See Everett v. Capitol Motor Transp. Co. Inc. 330 Mass. 417, 421.

Decree affirmed with costs of appeal.