NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-850
RICHARD MEDEIROS & others1
vs.
A PLUS WASTE & RECYCLING SERVICES, LLC & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs brought this action seeking to recover
damages for negligence and nuisance, and to enjoin the
defendants from operating a composting facility in Middleborough
(facility). Although the plaintiffs' tort claims were
ultimately unsuccessful, their request for equitable relief was
granted pursuant to G. L. c. 214, § 7A, which authorizes
Superior Court judges to enjoin environmental damage provided
that certain prerequisites are met. We affirm.
1Samantha Turgeon, Jason Meserve, Jaime Meserve, Donald Willdigg, Jean Willdigg, Judi-Ann Tracey, Shawn Tracey, Phillip Tracey, Jared Tracey, Robin Conroy, Sean Vance, Alison Vance, Amanda Duprey, Angel Duprey, Anthony Capilli, Jaclyn Capilli, Brendon Elliot, Alexandra Whelan, Drew Greene, and Candice Greene.
2 Ronald C. High, Jr. Background. The following facts are taken from the judge's
findings, supplemented by undisputed facts from the record.
Some facts are reserved for later discussion.
The facility began composting operations in 2010, initially
composting only leaf and yard waste. In November 2012, the
facility expanded its operation to include the composting of
food waste. In 2012 and 2014, the Massachusetts Department of
Environmental Protection (DEP) issued the defendants notices of
noncompliance for the emission of nuisance odors. In March
2016, the DEP revoked the facility's operating permit because of
nuisance odors and the facility ceased operations. However, in
early 2022, the defendants applied for, and the DEP granted
them, a new operating permit to reopen the facility.
The plaintiffs lived near the facility between 2013 and
2016, when it was composting food waste. In March 2016, the
plaintiffs filed a complaint in the Superior Court alleging that
the facility emitted noxious odors that prevented them from
enjoying their homes and yards. The plaintiffs asserted claims
for private nuisance, public nuisance, negligence, and gross
negligence, and sought an injunction pursuant to G. L. c. 214,
§ 7A, prohibiting the facility from operating.
The case was tried to a jury over seven days (except for
the plaintiffs' request for injunctive relief, which was jury-
waived and tried over one day), between May and June 2022. The
2 trial judge entered a directed verdict for the defendants on the
public nuisance and gross negligence claims and the jury
returned a verdict for the defendants on the private nuisance
and remaining negligence claim. With respect to the plaintiffs'
request for injunctive relief, the judge concluded that the
facility emitted noxious odors in violation of 310 Code Mass.
Regs. § 7.09(1) (2022), and enjoined the defendants from
operating the facility "until such time as the facility is
capable of functioning without emitting nuisance odors."
Discussion. On appeal, the defendants challenge the
judge's decision to grant relief under G. L. c. 214, § 7A,
arguing that the judge's conclusion was speculative and not
supported by sufficient evidence. We review the judge's
decision to issue the injunction for error of law or abuse of
discretion. See Doe v. Gonpo, 103 Mass. App. Ct. 246, 248
(2023).
To obtain equitable relief under G. L. c. 214, § 7A, the
plaintiffs were required to establish that the operation of the
facility was causing or about to cause damage to the environment
and that such damage constitutes a violation of "a statute,
ordinance, by-law or regulation the major purpose of which is to
prevent or minimize damage to the environment." G. L. c. 214,
§ 7A. The statute's definition of "damage to the environment"
includes "air pollution," id., which DEP regulations define as
3 "the presence in the ambient air space of one or more air
contaminants . . . in such concentrations and of such duration
as to" cause nuisance, injury, or "unreasonably interfere with
the comfortable enjoyment of life and property or the conduct of
business." 310 Code. Mass. Regs. § 7.00 (2022). The
regulations specifically identify "odor" as an "air
contaminant." 310 Code. Mass. Regs. § 7.00 (2022).
Based largely on the plaintiffs' trial testimony that the
facility had emitted noxious odors starting shortly after it
began composting food waste in November 2012, until it was shut
down in 2016, the judge concluded that the plaintiffs had
"demonstrated . . . that operation of the [f]acility creates a
noxious odor that unreasonably interferes with their enjoyment
of their properties and thus constitutes air pollution within
the meaning of § 7A." The judge also found that the emission of
these odors violated 310 Code Mass. Regs. § 7.09(1) (2022), a
DEP regulation intended to prevent or minimize damage to the
environment. Given that the defendants had recently obtained a
new operating permit, the judge concluded that the plaintiffs
had successfully demonstrated that "damage to the environment is
occurring or about to occur," and issued the injunction. Based
on the record before us, we hold that the judge's conclusions
are adequately supported by the evidence.
4 The defendants concede that the evidence at trial
established that the facility emitted noxious odors from 2013
until 2016, but argue that there was insufficient evidence to
support a finding that damage to the environment was "occurring"
or "about to occur" when the injunction was issued. This
argument is unpersuasive. Even if, as the defendants contend,
the relevant timeframe for assessing liability under G. L.
c. 214, § 7A, is at the time of trial rather than when the
complaint was filed, the plaintiffs successfully demonstrated
that harm to the environment was about to occur. The evidence
at trial showed that the facility had previously caused noxious
odors and only ceased doing so when it was shut down.
Additionally, the plaintiffs established that the facility was
about to resume operations. Given the facility's history, the
judge reasonably concluded that there was a significant risk of
noxious odors returning once operations resumed.
The defendants' claim that the judge improperly shifted the
burden of proof also fails to persuade us. The plaintiffs met
their initial burden by presenting evidence that the facility
had caused environmental damage in the past and was likely to do
so again upon resuming operations.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-850
RICHARD MEDEIROS & others1
vs.
A PLUS WASTE & RECYCLING SERVICES, LLC & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs brought this action seeking to recover
damages for negligence and nuisance, and to enjoin the
defendants from operating a composting facility in Middleborough
(facility). Although the plaintiffs' tort claims were
ultimately unsuccessful, their request for equitable relief was
granted pursuant to G. L. c. 214, § 7A, which authorizes
Superior Court judges to enjoin environmental damage provided
that certain prerequisites are met. We affirm.
1Samantha Turgeon, Jason Meserve, Jaime Meserve, Donald Willdigg, Jean Willdigg, Judi-Ann Tracey, Shawn Tracey, Phillip Tracey, Jared Tracey, Robin Conroy, Sean Vance, Alison Vance, Amanda Duprey, Angel Duprey, Anthony Capilli, Jaclyn Capilli, Brendon Elliot, Alexandra Whelan, Drew Greene, and Candice Greene.
2 Ronald C. High, Jr. Background. The following facts are taken from the judge's
findings, supplemented by undisputed facts from the record.
Some facts are reserved for later discussion.
The facility began composting operations in 2010, initially
composting only leaf and yard waste. In November 2012, the
facility expanded its operation to include the composting of
food waste. In 2012 and 2014, the Massachusetts Department of
Environmental Protection (DEP) issued the defendants notices of
noncompliance for the emission of nuisance odors. In March
2016, the DEP revoked the facility's operating permit because of
nuisance odors and the facility ceased operations. However, in
early 2022, the defendants applied for, and the DEP granted
them, a new operating permit to reopen the facility.
The plaintiffs lived near the facility between 2013 and
2016, when it was composting food waste. In March 2016, the
plaintiffs filed a complaint in the Superior Court alleging that
the facility emitted noxious odors that prevented them from
enjoying their homes and yards. The plaintiffs asserted claims
for private nuisance, public nuisance, negligence, and gross
negligence, and sought an injunction pursuant to G. L. c. 214,
§ 7A, prohibiting the facility from operating.
The case was tried to a jury over seven days (except for
the plaintiffs' request for injunctive relief, which was jury-
waived and tried over one day), between May and June 2022. The
2 trial judge entered a directed verdict for the defendants on the
public nuisance and gross negligence claims and the jury
returned a verdict for the defendants on the private nuisance
and remaining negligence claim. With respect to the plaintiffs'
request for injunctive relief, the judge concluded that the
facility emitted noxious odors in violation of 310 Code Mass.
Regs. § 7.09(1) (2022), and enjoined the defendants from
operating the facility "until such time as the facility is
capable of functioning without emitting nuisance odors."
Discussion. On appeal, the defendants challenge the
judge's decision to grant relief under G. L. c. 214, § 7A,
arguing that the judge's conclusion was speculative and not
supported by sufficient evidence. We review the judge's
decision to issue the injunction for error of law or abuse of
discretion. See Doe v. Gonpo, 103 Mass. App. Ct. 246, 248
(2023).
To obtain equitable relief under G. L. c. 214, § 7A, the
plaintiffs were required to establish that the operation of the
facility was causing or about to cause damage to the environment
and that such damage constitutes a violation of "a statute,
ordinance, by-law or regulation the major purpose of which is to
prevent or minimize damage to the environment." G. L. c. 214,
§ 7A. The statute's definition of "damage to the environment"
includes "air pollution," id., which DEP regulations define as
3 "the presence in the ambient air space of one or more air
contaminants . . . in such concentrations and of such duration
as to" cause nuisance, injury, or "unreasonably interfere with
the comfortable enjoyment of life and property or the conduct of
business." 310 Code. Mass. Regs. § 7.00 (2022). The
regulations specifically identify "odor" as an "air
contaminant." 310 Code. Mass. Regs. § 7.00 (2022).
Based largely on the plaintiffs' trial testimony that the
facility had emitted noxious odors starting shortly after it
began composting food waste in November 2012, until it was shut
down in 2016, the judge concluded that the plaintiffs had
"demonstrated . . . that operation of the [f]acility creates a
noxious odor that unreasonably interferes with their enjoyment
of their properties and thus constitutes air pollution within
the meaning of § 7A." The judge also found that the emission of
these odors violated 310 Code Mass. Regs. § 7.09(1) (2022), a
DEP regulation intended to prevent or minimize damage to the
environment. Given that the defendants had recently obtained a
new operating permit, the judge concluded that the plaintiffs
had successfully demonstrated that "damage to the environment is
occurring or about to occur," and issued the injunction. Based
on the record before us, we hold that the judge's conclusions
are adequately supported by the evidence.
4 The defendants concede that the evidence at trial
established that the facility emitted noxious odors from 2013
until 2016, but argue that there was insufficient evidence to
support a finding that damage to the environment was "occurring"
or "about to occur" when the injunction was issued. This
argument is unpersuasive. Even if, as the defendants contend,
the relevant timeframe for assessing liability under G. L.
c. 214, § 7A, is at the time of trial rather than when the
complaint was filed, the plaintiffs successfully demonstrated
that harm to the environment was about to occur. The evidence
at trial showed that the facility had previously caused noxious
odors and only ceased doing so when it was shut down.
Additionally, the plaintiffs established that the facility was
about to resume operations. Given the facility's history, the
judge reasonably concluded that there was a significant risk of
noxious odors returning once operations resumed.
The defendants' claim that the judge improperly shifted the
burden of proof also fails to persuade us. The plaintiffs met
their initial burden by presenting evidence that the facility
had caused environmental damage in the past and was likely to do
so again upon resuming operations. It was not improper to
require the defendants to rebut this evidence with proof that
the facility was operating in a manner that would prevent future
harm. The defendants' assertion that it "can be presumed" the
5 DEP would not have issued a new permit if there was not a change
in circumstances overlooks evidence credited by the judge that
showed the permitting process relied heavily on self-
certification with limited independent verification. As the
trial judge noted, "[t]here was no evidence that said permit is
restricted or conditioned to minimize noxious odors in the
future." See Reproductive Rights Network v. President of the
Univ. of Mass., 45 Mass. App. Ct. 495, 500 (1998) (permanent
injunction properly granted where defendants failed to meet
burden to show wrongful conduct "could not reasonably be
expected to recur").
The defendants also suggest that the injunction was issued
in error because the plaintiffs did not succeed on their
negligence or nuisance claims. However, unlike nuisance and
negligence claims, which focus on compensating private
individuals for past harm, G. L. c. 214, § 7A, is designed to
address the threat of future environmental damage that affects
the general public. Therefore, the failure of the plaintiffs'
negligence and nuisance claims did not preclude the judge from
finding that the facility still poses a threat to the
6 environment warranting injunctive relief under G. L. c. 214,
§ 7A. For all of these reasons, there was no error.3
Judgment affirmed.
By the Court (Desmond, Hand & Grant, JJ.4),
Clerk
Entered: October 3, 2024.
3 The defendants also appeal from the judge's decision to award costs under G. L. c. 214, § 7A, which expressly permits costs to be awarded to successful plaintiffs. There is no need to address this claim given our conclusion that the injunction was properly issued.
4 The panelists are listed in order of seniority.