Number 3. August 1, 1968

Number 3. August 1, 1968 HONORABLE HOWARD WHITMORE, Jr., COMMISSIONER Metropolitan District Commission 20 Somerset Street Boston, Massachusetts 02108 Dear Commissioner Whitmore: You have requested my opinion on the effect of St. 1966, c. 685, §3, on certain powers of the Metropolitan District Commission. The 1966 Act inserted § § 26-50 (referred to in § 50 as the Massachusetts Clean Waters Act) in c. 21 of the General Laws, whereby a program of water pollution control for the Commonwealth was established, and the Division of Water Pollution Control created to administer this program. Section 3 of the 1966 Act provides: 32 P.D. 12 "Wherever in any general or special law reference is made to the authority to administer water pollution abatement or control laws, such authority shall ... be vested in the division of water pollution control The specific questions as to which you have requested my opinion are as follows: "1 . Are the rules and regulations for the government and use of the waters of the Charles River Basin, particularly Rule 9, adopted in 1935, which reads as follows - 'No person shall throw or dump any papers, garbage or other refuse into the waters of the Basin nor allow any form of pollution to empty or drain into said waters,' still valid and in full force and effect? "2. Does the Metropolitan District Commission have the authority and power to enforce and prosecute violations of water pollution [laws relating to] the Charles River and other rivers within its jurisdiction and control? "3. Does the Metropolitan District Commission have the authority and power to enforce rules and laws pertaining to the prohibition of disposing of garbage, refuse, bottles, cans or rubbish in coastal or inland waters within the care and control of the Commission? "4. Have Sections 39 and 76 of Chapter 92 of the General Laws been repealed by the passage of Massachusetts Clean Waters Act of 1966?" For convenience I begin with Question 4. General Laws c. 92, § § 39 and 76, referred to in Question 4, provide: "§ 39. The [metropolitan district] commission may make rules and regulations prohibiting the pollution of the Charles River within the metropolitan parks district. Any person violating any rule or regulation made hereunder shall be punished by fine not exceeding one thousand dollars." "§ 76. The [metropolitan district] commission may order the removal of all sewage and other polluting matter or factory waste as a common nuisance from the Charles River and its tributaries below Waltham and from the Charles River basin; and no sewer, drain or overflow or other outlet for factory or house drainage or for any other drainage shall hereafter be connected with said basin or the river below Waltham without the approval of the commission." To the extent that the foregoing statutes confer powers on the Metropolitan District Commission ("MDC"), I regard them as relating to its "authority to administer water pollution abatement or control laws" within the meaning of St. 1966, c. 685, § 3, quoted at the end of the first paragraph of this opinion. To administer is "to direct or superintend the execution, use or conduct of . . . ." Webster's Third New International Dictionary (1964), p. 27. It is a word "susceptible of a very broad interpretation" (Costonis v. Medford Housing Authority, 343 Mass. 108, 114) - broad enough, in my opinion, to cover the sort of rule-making, removal and approval powers conferred by G.L. c. 92, §§ 39 and 76. P.D. 12 33 It is clear, I think, that G.L. c. 92, § 39 is, in its entirety, a statute relating to "water pollution abatement or control" as that term is used in St. 1966, c. 685, § 3, since the whole purpose of the rules and regulations authorized thereunder is that of "prohibiting the pollution of the Charles River . ..." I am likewise of the opinion that §76 is aimed exclusively at the pollution problem. The removal of "sewage and other polluting matter or factory waste" contemplated by the first clause of § 76 seems on its face to have been intended as a "water pollution abatement or control" measure. Read in the context of the first clause, the approval requirement in the second clause of § 76 appears to be designed to protect the Charles River against the introduction of pollutants. It differs from the requirement that the MDC obtain approval from the Department of Public Health under St. 1951, c. 645, § 2, and similar statutes, in that the latter type of approval necessarily involves broad considerations of public health which go beyond the control of water pollution. See Op. Atty. Gen. No. 66-67/83. Under the Massachusetts Clean Waters Act, moreover, an approval power comparable in scope to the one in G.L. c. 92, § 76 has been expressly conferrred upon the Division of Water Pollution Control with respect to all waters of the Commonwealth by G.L. c. 21, § 43: "No person shall make or permit a new outlet for the discharge of sewage or industrial waste or wastes, or the effluent therefrom, into any of the waters of the commonwealth nor shall he construct or operate a new disposal system for the discharge of sewage or industrial or other wastes or the effluent therefrom into the waters of the commonwealth without first obtaining a permit, which the director is hereby authorized to issue subject to such conditions as he may deem necessary to insure compliance with the standards established for the waters affected." The inclusion of the foregoing provision in St. 1966, c. 685 lends further support to the conclusion that the Legislature intended by § 3 thereof to divest other agencies, such as the MDC, of like approval powers. It is therefore my opinion that the enactment of St. 1966, c. 685, § 3 has relieved the MDC of all powers exercisable under G.L. c. 92, § § 39 and 76. It would be inaccurate, however, to say that §§39 and 76 have thereby been "repealed." Rather, the effect of the 1966 Act was to transfer the MDC's powers thereunder to the Division of Water Pollution Control. Turning to Question 1, I note from a subsequent letter sent by you to the Chief of our Administrative Division that the rules and regulations to which you refer were adopted not under § 39 of G.L. c. 92, but under § 38 thereof. The latter section authorizes the MDC to "make reasonable rules and regulations, not impairing freight traffic, for the care, maintenance, protection and policing of the Charles River basin" and imposes "a fine not exceeding fifty dollars" for each violation of such rules and regulations. Thus, the statute under which the MDC acted contains no express reference "to the authority to administer water pollution abatement or control laws" within the meaning of St. 1966, c. 685, § 3. I am of the opinion, however, that any rule or regulation adopted under G.L. c. 92, § 38 has been nullified by St. 1966, c. 685, § 3, if and to the extent that such rule or regulation is directed at "water pollution abatement or control . . . ." The anti-pollution program envisioned in the 1966 statute is a comprehensive one. Under § 1 thereof, provisions were inserted in G.L. c. 21 delegating broad supervisory and regulatory powers to the Division of Water 34 P.D. 12 Pollution Control (§§ 27, 34, 43, 46, 49) and treating the MDC in certain respects simply as a "water pollution abatement district" for purposes of this program (§ 30A). General Laws c. 21, § 42, also inserted by St. 1966, c. 685, § 1, covers much of the ground formerly left to administrative regulation by such agencies as the MDC: "Whoever directly or indirectly throws, drains, runs or discharges or permits the discharge into the waters of the commonwealth organic or inorganic matter which shall cause, or contribute to, a condition in contravention of the standards adopted by the division shall be punished by a fine of one hundred dollars. Each day such violation continues shall be a separate offense, punishable by a like fine. For the purposes of this section and sections forty-three to forty-six, inclusive, the words 'whoever' and 'person' shall include political subdivisions of the commonwealth and public corporations." I am informed by the Division of Water Pollution Control that "standards" have been adopted for purposes of the foregoing statute with respect to the Charles River. If pre-existing regulations of the MDC on pollution of the Charles River remained in force - differing in their terms from the above-quoted statute and from regulations promulgated by the Division of Water Pollution Control, with violators subject to the fifty-dollar fine imposed by G.L. c. 92, § 38 rather than the hundred-dollar fine prescribed in G.L. c. 21, § 42 - the Division of Water Pollution Control could not function effectively and the legislative scheme embodied in the Massachusetts Clean Waters Act would be seriously impaired. I am therefore persuaded that the elimination of the MDC's "authority to administer water pollution abatement or control laws" by St. 1966, c. 685, § 3 was intended not only to divest the MDC of its authority to adopt certain types of regulations, but to rescind existing regulations made in the exercise of that authority. Rule 9, quoted by you in Question 1, is, at least to some extent, a regulation of this type. Its first clause, which forbids any person to "throw or dump any papers, garbage or other refuse into the waters of the [Charles River] Basin," appears to be directed primarily against littering rather than pollution, since not everything falling into the category of "papers, garbage or other refuse" would actually pollute the River as that term is ordinarily understood. However, Rule 9 goes on to provide that no person shall "allow any form of pollution to empty or drain into said waters" (emphasis supplied), and even its first clause is in some degree an anti-pollution measure. Furthermore, the Rule as a whole overlaps with G.L. c. 21, § 42, quoted above. It is therefore my opinion that Rule 9 is no longer enforceable. This is not to say that a regulation confined to littering, as distinguished from pollution, could not hereafter be adopted by the MDC. The only other regulation among those you have furnished us which appears to touch on the problem of pollution is Rule 7, which provides: "No person shall have or ride or drive a horse or motor or other vehicle upon the ice, or cut holes in or deface or defile the ice in said Basin." (Emphasis supplied.) Since "defile" is a synonym for "pollute" {Webster's Third New International Dictionary (1964), p. 1756), and since pollution of the ice on the Charles is equivalent to pollution of its water, I am of the opinion that the words "or defile" have been effectively stricken from Rule 7 by operation of St. 1966, c. 685, § 3. P.D. 12 35 Since Questions 2 and 3 both deal with the MDC's law-enforcement powers, I answer them together. In doing so I assume that your questions refer to criminal enforcement by the MDC police force and not to civil enforcement through the institution of bills in equity for injunctions and the like. The latter type of enforcement, of course, remains within the exclusive province of the Department of the Attorney General. See: G.L. c. 12, § 3; G.L. c. 21, § 44. Except to the extent that a particular statute or regulation may have been vitiated by St. 1966, c. 685 (such Rule 9, discussed above), I am of the opinion that the law-enforcement powers of the MDC police were in no way impaired or reduced by the 1966 legislation. These powers are conferred by G.L. c. 92, § 61, which provides (with exceptions not here material) that the MDC police "shall have within the metropolitan parks district, and within the towns outside said district wherein any of the property of the metropolitan water and sewerage districts* is situated, all the powers of police officers and constables of towns of this commonwealth . . . ." Their powers, like those of local police officers, are of a general character, extending to the enforcement of laws administered by a variety of state agencies, such as the Registry of Motor Vehicles. In short, I regard the administration of the laws referred to in St. 196& c. 685, § 3 and the criminal enforcement of those laws as two completely t's^parate functions. It follows that the power of the MDC police to enforce anti-pollution laws is not a part of the MDC's "authority to administer water pollution abatement or control laws" which was transferred to the Division of Water Pollution Control. In arriving at this conclusion I am not unmindful of G.L. c. 21, § 50, inserted by St. 1966, c. 685, § 1, which provides that "the officers of the division of law enforcement [of the Department of Natural Resources] shall, upon request of the water resources commission, investigate and prosecute violations of law, orders or rules and regulations relating to [the Massachusetts Clean Waters Act] ." The statutory authority of officers in the Division of Law Enforcement of the Department of Natural Resources, unlike that of the MDC police, is confined to the enforcement of "penal laws which it is the duty of the department to enforce . . . ." G.L. c. 21, § 6A. The Division of Water Pollution Control is under the control of the Water Resources Commission (G.L. c. 21, § 26), which is nominally within the Department of Natural Resources "but not under the supervision and control thereof." G.L. c. 21, §§ 1, 8. Thus, it may well have been necessary to enact separate legislation in order to give the Division of Law Enforcement jurisdiction over pollution-law violations, and it was certainly necessary to do so in order to put the personnel of that Division at the disposal of the Water Resources Commission. That, I believe, was the purpose of the quoted provision of G.L. c. 21, § 50. I do not believe that § 50 can be legitimately read as conferring exclusive law-enforcement power upon the Division of Law Enforcement. In any event the administrative authority over pollution matters removed from the MDC and other agencies by St. 1966, c. 685, § 3 transferred that authority to the Division of Water Pollution Control - not to the Division of Law Enforcement. The Division of Water Pollution Control has no police of its own, and, as indicated in G.L. c. 21, § 50, must therefore rely upon the police *It is obvious that the phrase "the property of the metropolitan water and sewerage dis- tricts" in §61 refers to the property of the Commonwealth which is under the control of those districts, since the districts themselves hold title to no property but are merely charged with the control of certain property owned by the Commonwealth. 36 P.D. 12 of a different agency - the Division of Law Enforcement. Thus, if § 3 of the 1966 legislation were construed as transferring the anti-pollution enforcement powers of the MDC to the Division of Water Pollution Control, those powers would be reposed in an agency which, in itself, could not exercise them. It is therefore my opinion that St. 1966, c. 685 does not affect the power of the MDC, through its police force, to enforce criminally all valid statutes and regulations of the types described in Questions 2 and 3, and to prosecute violators thereof. Very truly yours, ELLIOT L. RICHARDSON Attorney General