Neighbors Sue Massachusetts Composting Facility Over Odor ComplaintsNeighbors Sue Massachusetts Composting Facility Over Odor Complaints

 Middleborough, Massachusetts, is located about 15 miles southwest of Plymouth, the site of the colony founded in 1620 by the Mayflower Pilgrims.  A facility located in the town, owned by A-Plus Waste and Recycling, began composting operations in 2010, initially composting only leaf and yard waste.  Two years later, the facility expanded its operation to include the composting of food waste.  

In 2012 and 2014, the Massachusetts Department of Environmental Protection (DEP) issued notices of noncompliance based on the emission of nuisance odors. Because of these odors, the DEP revoked the facility's operating permit, in 2016, and the facility shut down.  However, in early 2022, A-Plus took steps to reopen the facility, and the DEP granted its application for a new permit.

Richard Medeiros and other individuals living near the facility between 2013 and 2016, when it was composting food waste, filed a complaint in Plymouth County Superior Court alleging that the facility emitted noxious odors that prevented them from enjoying their homes and yards. The plaintiffs asserted claims against A-Plus and Ronald C. High, Jr., its manager, for private nuisance, public nuisance, negligence, and gross negligence, and sought an injunction prohibiting the facility from operating.

 The nuisance and negligence claims were heard by a jury in a trial lasting seven days.  The request for injunctive relief was heard, as is customary, by the judge without a jury. The trial judge entered a directed verdict for the defendants on the public nuisance and gross negligence claims. (A directed verdict is a ruling whereby the decision in a case is taken out of the hands of the jury when a trial court determines that a claimant’s evidence is legally insufficient for a reasonable jury to deliberate on it.)  The jury returned a verdict for the defendants on the private nuisance and remaining negligence claim.

With respect to the plaintiffs' request for an injunction, the judge found that the facility emitted noxious odors in violation of state law, and thus prohibited the defendants from operating the facility "until such time as the facility is capable of functioning without emitting nuisance odors."

On appeal, the defendants challenged the trial judge's decision to close the facility, arguing that the judge's nuisance determination was speculative and not supported by sufficient evidence.  A three-judge appellate panel disagreed.  “Based on the record before us, we hold that the judge's conclusions are adequately supported by the evidence.”

To obtain an injunction, the plaintiffs had 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."  

The commonwealth’s definition of "damage to the environment" includes "air pollution," which DEP regulations define as "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." The regulations specifically identify odor as an air contaminant.

The plaintiffs' trial testimony established that the facility had emitted noxious odors starting in late 2012, when it began composting food waste, until it was shut down in 2016.  Based on that evidence, the trial 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 [the statute]."

The judge also found that the emission of these odors violated 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.

“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,” the panel noted.  “This argument is unpersuasive. Even if, as the defendants contend, the relevant timeframe for assessing liability . . . 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.”

Things could not be quite so bad if the DEP went ahead and issued a new permit, so the defendants asserted.  A meaningful change in circumstances?  That argument “overlooks evidence credited by the judge that showed the permitting process relied heavily on self-certification with limited independent verification,” the appeals court said.  Citing the trial judge’s remarks, "[t]here was no evidence that said permit is restricted or conditioned to minimize noxious odors in the future," the panel continued.

As a last resort, the defendants pitched the contention that the trial judge was mistaken in issuing the injunction because the plaintiffs did not succeed on their negligence or nuisance claims.  The panel made short work of its response.  “[U]nlike nuisance and negligence claims, which focus on compensating private individuals for past harm, [the statute] is designed to address the threat of future environmental damage that affects the general public,” it wrote.

“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 environment . . . .”

Medeiros v. A-Plus Waste & Recycling Services, LLC, No. 23-P-850, Mass. App. Ct., Oct. 3, 2024.