CLEAN HARBORS OF BRAINTREE, INC. vs. BOARD OF HEALTH OF BRAINTREE.

LYNCH, J. The board of health of Braintree (board) appeals from an order of a judge in the Superior Court granting Clean Harbors of Braintree, Inc. (Clean Harbors), relief from a judgment ordered by this court and entry of a new judgment in Clean Harbor's favor. We granted the board's application for direct appellate review and we now affirm.

Clean Harbors commenced this litigation in 1987, seeking a declaration that it was not required to obtain a site assignment pursuant to G. L. c. 111, Section 150B (1990 ed.), for a hazardous waste treatment and storage facility it was then operating in Braintree. A judge in the Superior Court ruled that the requirements of G. L. c. 111, Section 150B, were not applicable because Clean Harbors was a facility in operation before the statute became effective, and granted summary judgment in favor of Clean Harbors. Clean Harbors of Braintree, Inc. v. Board of Health of Braintree, 409 Mass. 834, 835 (1991) (Clean Harbors I). On appeal, we held that Section 150B applied to Clean Harbors and ruled that, in order to continue operations, Clean Harbors must apply for and receive a site assignment from the board. Id. at 838. In response to the board's motion for entry of a final judgment after rescript, a Superior Court judge ordered Clean Harbors to file an application with the board for a site assessment pursuant to Section 150B. [Note 1] Before the site assignment proceedings were completed,

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however, the Legislature amended G. L. c. 111, Section 150B, by providing in relevant part that G. L. c. 111, Sections 150A and 150B, "shall not apply to any hazardous waste facility . . . which was licensed as such . . . as of May first, nineteen hundred and eighty." St. 1992, c. 23, Section 18 (the amendment).

Relying on the amendment, Clean Harbors filed a motion in the Superior Court on April 29, 1992, seeking relief from the Superior Court judgment and a stay of any further site assignment proceedings before the board. The board opposed Clean Harbors' motion, arguing that the amendment was unconstitutional, and that it did not apply to Clean Harbors. After a hearing, a judge of the Superior Court allowed Clean Harbors' motion and ordered entry of a new judgment declaring that Clean Harbors was not required to obtain a site assignment under Section 150B.

1. The board first argues that the amendment violates arts. 48 and 63 of the Amendments to the Massachusetts Constitution. The board is a municipal agency of the town of Braintree. In Spence v. Boston Edison Co., 390 Mass. 604, 610 (1983), we recognized a "long-standing and far-reaching prohibition on constitutional challenges by governmental entities to acts of their creator State." We have followed this rule in a variety of contexts. See Brookline v. The Governor, 407 Mass. 377, 386 (1990) (Liacos, C.J., concurring) (municipality cannot challenge constitutionality of State statute based on its enactment as "outside" section of the general appropriation act); Trustees of Worcester State Hosp. v. The Governor, 395 Mass. 377, 380 (1985) (takings claim barred since governmental entities cannot challenge constitutionality of State statutes); Spence v. Boston Edison Co., supra (agency not permitted to bring due process and equal protection claims). We conclude, therefore, that the board's claims under arts. 48 and 63 are barred by the same prohibition

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relied on in Spence v. Boston Edison Co., supra. "Agencies, which are creations of the State, may not challenge the constitutionality of State statutes." Id. at 610, citing Newark v. New Jersey, 262 U.S. 192, 196 (1923).

2. The board reads G. L. c. 29, Section 7L (1990 ed.), as invalidating the amendment. [Note 2] We again pass over the question "whether Section 7L is an unlawful attempt by one Legislature to dictate to subsequent Legislatures the manner in which constitutionally permissible legislative processes may work." Gordon v. Sheriff of Suffolk County, 411 Mass. 238, 247 (1991). Although part of St. 1992, c. 23, made appropriations for the expenses of the Commonwealth, the amendment itself made no appropriation of any sort. In Gordon v. Sheriff of Suffolk County, supra, we considered a challenge to an outside section of the fiscal year 1992 budget (St. 1991, c. 138). Although portions of the statute obviously made appropriations for the Commonwealth, we read the requirements of Section 7L as applying to the outside section rather than the appropriations act as a whole. Proceeding in the same manner we conclude that Section 7L does not apply to the amendment, since that law makes no appropriation whatsoever.

3. The board next argues that the amendment violates the doctrine of separation of powers articulated in art. 30 of the Massachusetts Declaration of Rights. In LaGrant v. Boston Hous. Auth., 403 Mass. 328, 331 (1988), we held that "agencies . . . have standing to challenge the constitutionality of a State statute when it is alleged that the statute represents legislative encroachment on judicial power in violation of art. 30." We, therefore, address the merits of this claim.

In Clean Harbors I, we construed G. L. c. 111, Section 150B, as it was originally enacted and, "[a]fter examining the statutory history of local site assignment provisions," held that

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Section 150B applied to the Clean Harbors facility. Id. at 835. We also declined to read a "judicially manufactured grandfather clause" into Section 150B. Id. at 838. Subsequent to our decision, the Legislature responded by amending Section 150B, and by stating that Section 150B should not apply to facilities that were licensed as of May 1, 1980. We are therefore presented with a statute enacted subsequent to our decision which was based on the court's perception of legislative intent. While the amendment effectively nullified our decision in Clean Harbors I, it was not impermissible under art. 30.

Two recently decided cases explain why this is so. In Massachusetts Wholesalers of Malt Beverages, Inc. v. Attorney Gen., 409 Mass. 336 (1991) (Mass. Wholesalers I), we interpreted the "bottle bill," as originally enacted, and held that unclaimed "deposits" belonged to the bottlers and distributors. Thereafter, the Legislature amended the bottle bill, making it clear that bottlers and distributors were to hold the unclaimed deposits in separate accounts on behalf of consumers and, if abandoned, on behalf of the Commonwealth. Massachusetts Wholesalers of Malt Beverages, Inc. v. Commonwealth, 414 Mass. 411, 412 (1993) (Mass. Wholesalers II). In Mass. Wholesalers II, we held: "The plaintiffs' right to the deposits created under the original bottle bill, as interpreted in Mass. Wholesalers [I], supra, does not translate into a similar right to these deposits under the bottle bill, as now amended." Id. at 417. We noted: "[W]hatever interpretation we might give would not affect the Legislature's power to amend or clarify the statute, giving it whatever interpretation the General Court might desire." Id., quoting Answer of the Justices, 375 Mass. 790, 793 (1978). Just as the Legislature properly amended the bottle bill to accomplish what it originally intended after our decision in Mass. Wholesalers I, the Legislature could also properly amend Section 150B to accomplish what it had originally intended, as no rights had vested under our decision in Clean Harbors I.

4. The board next argues that the amendment violates Section 8 of art. 89 of the Amendments to the Constitution of the

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Commonwealth (Home Rule Amendment). [Note 3] A municipality has standing to assert this claim. See Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 719 (1981) (city and mayor challenged appropriations under Home Rule Amendment); Hadley v. Amherst, 372 Mass. 46, 48 (1977) (town challenged statute under Home Rule Amendment). We shall assume without deciding that a board of a municipality has such standing as well.

The Home Rule Amendment preserves the right of municipalities to self-government in "local matters," but preserves the Commonwealth's right to legislate with respect to State, regional, and general matters. Gordon v. Sheriff of Suffolk County, supra at 244. "To this particular end, the Home Rule Amendment is to be narrowly construed." Id. The Legislature may act on matters of State, regional, or general concern, even though the action may have special effect on one or more individual cities or towns. Id. at 245. Hadley v. Amherst, supra at 50. Opinions of the Justices, 356 Mass. 775, 787-788 (1969). In Opinions of the Justices, supra at 788, a majority of the Justices opined that legislation for a multi-purpose stadium, a third vehicular tunnel, a Worcester toll road, and an arena was "at least regional and ha[d] some Statewide effect." In Hadley v. Amherst, supra at 50, this court held that "sewer systems, with their effect on water quality in a particular area, are a matter of State, regional, or general concern." In Gordon v. Sheriff of Suffolk County, supra at 245, we were concerned with legislation providing for the transfer of control over the Suffolk County house of correction and held: "[T]he transfer legislation predominantly concerns State, regional, and general matters and, while the legislation has some special effect on Boston's penal institutions department, that effect neither diminishes its broader purpose nor serves to make the Home Rule Amendment

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applicable." It follows from this line of cases that the waste treatment performed at the Clean Harbors facility is certainly a matter of State, regional, and general concern. We, therefore, conclude that the amendment does not violate the Home Rule Amendment, even if the amendment applies only to the hazardous waste treatment facility in Braintree.

5. The board next argues that Clean Harbors does not fall within the provisions of the amendment. The amendment provides that G. L. c. 111, Section 150B:

"shall not apply to any hazardous waste facility exempt from the licensing requirements of chapter twenty-one C, which was lawfully organized and in existence on May first, [1980], or to any hazardous waste facility which was licensed as such by any division of the [Department of Environmental Protection] as of May first, [1980]."

It is not disputed that Clean Harbors is not exempt from the licensing requirements of c. 21C. Therefore, to fall within the terms of the amendment, the Clean Harbors facility must have been licensed as a hazardous waste facility on May 1, 1980. The board claims that, since the statute in effect on May 1, 1980, required licensing of the "person" operating the facility, and not the "facility" per se, no hazardous waste facility could have been "licensed as such" on May 1, 1980. See G. L. c. 21, Section 58, repealed by St. 1979, c. 704, Section 1. G. L. c. 21C, inserted by St. 1979, c. 704, Section 2. [Note 4] We disagree.

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"Our task is to interpret the statute according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced." Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984). A statute should not be construed in such a way as to make it a nullity when a sensible construction is readily available. Manning v. Boston Redevelopment Auth., 400 Mass. 444, 453 (1987). The amendment was clearly enacted in response to our decision in Clean Harbors I, supra, in order to exclude hazardous waste facilities like Clean Harbors in existence as of May 1, 1980, from the site assignment requirement of Section 150B. [Note 5] Assuming that all such facilities operate pursuant to licenses granted to "person[s]" under the statute in effect at the time, the board's argument would render the amendment a total nullity. A more sensible construction, however, exists in the plain language of the amendment itself.

The amendment states that Section 150B shall not apply "to any hazardous waste facility . . . which was licensed as such by any division of the department as of May first, [1980]." The parties do not dispute that Clean Harbors fits the definition of "facility." G. L. c. 111, Section 150B. G. L. c. 21D, Section 2 (1990 ed.). See Clean Harbors I, supra at 836. In addition, the board acknowledges that as of May 1, 1980, the Braintree facility was licensed under G. L. c. 21. That the 1980 license was issued to a company whose structure or ownership

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may have been different from Clean Harbors is immaterial. [Note 6]

6. Clean Harbors relied on Mass. R. Civ. P. 60 (b) (5) and 60 (b) (6), 365 Mass. 828 (1974), in its motion seeking relief from the judgment in the Superior Court. The Superior Court judge discussed rule 60 (b) (5), but apparently allowed Clean Harbors' motion under rule 60 (b) (6). [Note 7] The board argues that neither rule warranted relief from the prior judgment.

We agree that "[r]ule 60 (b) (6) permits a court to relieve a party from final judgment where there is a post-judgment change in the law having retroactive application." Brown v. Hutton Group, 795 F. Supp. 1307, 1316 n.7 (S.D.N.Y. 1992). [Note 8] See Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986), cert. denied, 480 U.S. 908 (1987) (postjudgment change in law having retroactive application may in special circumstances constitute extraordinary circumstance warranting vacation of judgment under rule 60 [b] [6]). However, rule 60 (b) (5), which permits the court to relieve a party from a final judgment where "it is no longer equitable that the judgment should have prospective application," also

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contemplates relief from a judgment as a result of a later change in the law such as when a statute is amended. Wallace Clark & Co. v. Acheson Indus., Inc., 394 F. Supp. 393, 395 n.4 (S.D.N.Y. 1975), cert. denied, 425 U.S. 976 (1976). We conclude, therefore, that it is of no significance whether the judge granted relief under rule 60 (b) (5) or (6). In either case his action was proper.

Judgment affirmed.