RICHARD MEDEIROS & Others v. a PLUS WASTE & RECYCLING SERVICES, LLC & Another.

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

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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

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"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.

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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

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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

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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.

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