P.J. Keating Company v. Town of Acushnet

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

23-P-629 Appeals Court

P.J. KEATING COMPANY vs. TOWN OF ACUSHNET & others1
(and a consolidated case2).

No. 23-P-629.

Bristol. December 4, 2023. – April 12, 2024.

Present: Meade, Massing, & Sacks, JJ.

Practice, Civil, Action in nature of certiorari. Nuisance.
Municipal Corporations, Board of health, Nuisance. Real
Property, Nuisance.

Civil actions commenced in the Superior Court Department on
September 15 and September 22, 2022.

After consolidation, the cases were heard by Susan E.
Sullivan, J., on motions for judgment on the pleadings.

Jonathan G. Murray for the defendants.
Luke H. Legere for the plaintiff.

SACKS, J. The board of health of the town of Acushnet

(board), invoking its authority under G. L. c. 111, §§ 122-125,

1 Board of health of Acushnet, assistant health agent of
Acushnet, and health agent of Acushnet.

2 Board of Health of Acushnet vs. P.J. Keating Company.
2

to eliminate nuisances within the town, issued a cease and

desist order requiring the P.J. Keating Company (PJK), owner of

a recently relocated hot-mix asphalt plant in Acushnet, to halt

operations that caused noxious odors and fumes to spread beyond

PJK's property. In its order, issued after an evidentiary

hearing, the board found that the emissions caused nearby

homeowners to suffer burning eyes, noses, and throats. On PJK's

complaint for judicial review, a Superior Court judge ruled that

the order was unsupported by substantial evidence and was

arbitrary and capricious, and judgment entered reversing the

board's decision. The judge also dismissed a separate action

brought by the board against PJK to enforce the order.3 On the

board's appeal, we conclude that its order was valid. We

therefore reverse the judgment annulling the order, and we

vacate the judgment dismissing the board's enforcement action

and remand for such further enforcement proceedings as may be

necessary.

Background. PJK operates a hot-mix asphalt plant and

quarry on its 381.3-acre parcel located at 72 South Main Street

in Acushnet, in an area zoned for industrial use.4 PJK and its

3 The two actions were consolidated in the Superior Court.

4 Our statement of background facts is primarily drawn from
matters reflected in the record of board proceedings, as well as
certain facts alleged in PJK's and the board's Superior Court
complaints that do not appear to be in dispute.
3

predecessors have operated the quarry since the 1890s and an

asphalt plant since the 1950s. Between 2018 and 2021, PJK

constructed a new asphalt plant on a part of the property that

is closer to residential neighborhoods and to South Main Street.

1. Odor complaints. In September 2021, after PJK began

operations at the new plant, homeowners complained to the board

about odors emanating from PJK's property; some homeowners

reported burning sensations in their noses. The board issued a

"nuisance odor notification" to PJK. In response, PJK stated

that, although its operations created no health risks, it was

taking steps to reduce odors and would investigate any

complaints of which it learned.

In April 2022, the board received numerous complaints of

odors, headaches, nausea, dizziness, and "a general fear of

being outdoors." The board's assistant health agent

investigated and confirmed the presence of "nuisance odors" at

residences on three streets near the plant, as well as at the

town's senior center.

2. Board proceedings. The assistant health agent notified

PJK of these findings and ordered PJK to cease and desist from

operating the plant and to remedy the cause of the odors. The

order cited the board's authority under G. L. c. 111, § 122, to
4

investigate and prevent nuisances.5 The order informed PJK of

its right to a hearing, and PJK requested one.

The board scheduled an evidentiary hearing for June 2022.

In advance of the hearing, PJK submitted substantial materials

for the board's consideration. At the hearing, PJK was

represented by counsel. Numerous residents testified about the

adverse effects of odors and fumes from the plant, as did the

board's assistant health agent. Representatives of PJK also

testified and answered questions from board members. After the

testimonial portion of the hearing, the board kept the record

open to allow PJK to submit additional evidence. We reserve for

later discussion the range of evidence before the board.

In its final decision, the board found that "the odor

originating from [PJK's property] caused neighboring property

owners to be prevented from enjoying the outside of their

properties because of the smell and burning of their eyes, nose

and throat due to the odor and noxious air produced by the

[asphalt] plant." The board concluded that the plant was a

5 The order also alleged a violation of a Department of
Environmental Protection (DEP) air pollution control regulation,
310 Code Mass. Regs. § 7.09 (2002). The terms of that
regulation authorize enforcement by local boards of health,
among others. 310 Code Mass. Regs. § 7.09(7) (2002). See 310
Code Mass. Regs. § 7.52 (2018). DEP's final air quality plan
approval was also conditioned on PJK's avoidance of "nuisance
conditions" that would violate § 7.09. Because the board's
final decision did not rely on those regulations, however, we do
not discuss them further.
5

"nuisance, source of filth[,] and cause of sickness," see G. L.

c. 111, § 123, and it ordered PJK to cease and desist from any

operations that caused noxious odors and fumes to spread beyond

the boundaries of PJK's property.

3. Superior Court proceedings. PJK sought review of the

board's order in the Superior Court, citing G. L. c. 30A, § 14,

as the basis for such review. The board, for its part,

commenced a separate Superior Court action to enforce its order.

On the board's motion, a judge issued a preliminary injunction

requiring PJK to comply with the order. The actions were then

consolidated, the board filed the record of its proceedings, and

PJK moved for judgment on the pleadings to reverse the board's

order.

A different judge considered the motion and, in response to

the board's argument that review under G. L. c. 30A was

unavailable, treated PJK's request for review as arising instead

under the certiorari statute, G. L. c. 249, § 4. The judge then

rejected the board's finding that the plant was a nuisance. She

reasoned that "the odor does not occur all of the time and is

exacerbated during certain weather conditions"; that the odor

did not affect all or any significant portion of the town's

residents, but merely certain neighbors of the plant; and that

the plant was in an industrial-zoned area and had passed all

inspections.
6

The judge further ruled that, even if the plant was a

nuisance, the board's order was still invalid, because "there

was no credible evidence before the [b]oard that the odor was

injurious to the public health," nor had the board made any such

finding. The judge therefore ruled that the board's order was

arbitrary and capricious and unsupported by substantial

evidence. On PJK's complaint for judicial review, she ordered

judgment reversing the board's order, and on the board's

enforcement claim, she ordered judgment dismissing the

complaint. This appeal by the board followed.

Discussion. 1. Basis for judicial review. We first

address the board's contention that the Superior Court had no

jurisdiction to review the board's decision under G. L. c. 30A,

as sought in PJK's complaint. Although the board is correct

that c. 30A does not apply, it does not follow that, as the

board argues, the judge was required to dismiss the complaint

for lack of subject matter jurisdiction. Instead, because

(1) board of health adjudicatory decisions are reviewable under

the certiorari statute, G. L. c. 249, § 4; (2) PJK sought review

within the sixty-day period established by that statute; and

(3) the board suffered no prejudice, the judge properly treated

PJK's complaint as seeking certiorari review.

The board is not an "agency" as that term is defined in

G. L. c. 30A, § 1 (2), and thus the board's decision is not
7

reviewable under c. 30A.6 See Robinson v. Board of Health of

Chatham, 58 Mass. App. Ct. 394, 395 n.4 (2003). But, because

PJK challenges the board's essentially adjudicatory decision in

an individual case, certiorari review is available.7 See Frawley

v. Police Comm'r of Cambridge, 473 Mass. 716, 725 (2016).

Indeed, the board acknowledges that certiorari is appropriate to

obtain review of nuisance abatement orders.8 We have previously

6 Statutes governing specific types of decisions by local
boards of health may nevertheless expressly provide for c. 30A
review. See G. L. c. 111, § 150A, ninth & twelfth pars. (board
of health decisions concerning solid waste disposal facility
site assignments).

7 "To obtain certiorari review of an administrative
decision, the following three elements must be present: (1) a
judicial or quasi judicial proceeding, (2) from which there is
no other reasonably adequate remedy, and (3) a substantial
injury or injustice arising from the proceeding under review."
Indeck v. Clients' Sec. Bd., 450 Mass. 379, 385 (2008).

8 Although neither party cites it, we acknowledge the
Supreme Judicial Court's broad statement some years ago that a
board of health's nuisance abatement order under G. L. c. 111,
§§ 122-125, "is not subject to a review or any proceedings
brought by [the target of the order] solely for that purpose."
DeVincent v. Public Welfare Comm'n. of Waltham, 319 Mass. 170,
171 (1946). DeVincent and the cases it relied on, however,
considered only whether review of board decisions was available
under statutes specifically applicable to such boards, rather
than under the certiorari statute, which relies on the
unavailability of other remedies. See id.; Tracht v. County
Comm'rs of Worcester, 318 Mass. 681, 683-685 (1945); Kineen v.
Board of Health of Lexington, 214 Mass. 587, 590 (1913); Stone
v. Heath, 179 Mass. 385, 387-388 (1901). "[O]nly words
unmistakable in import will express a legislative purpose to
deprive parties" of the availability of certiorari review
(quotation and citation omitted). Revere v. Massachusetts
Gaming Comm'n, 476 Mass. 591, 597 (2017). Further, in Stone the
court held that board of health nuisance abatement orders are
8

ruled that a claim for judicial review erroneously labeled as

seeking a declaratory judgment may be treated instead as seeking

certiorari review, where such review is available and

appropriate.9 See Grady v. Commissioner of Correction, 83 Mass.

App. Ct. 126, 135-136 (2013). We do the same with the

mislabeled c. 30A claim here.

2. Merits. We begin by setting forth the standards for

certiorari review. We then discuss the authority of a local

board of health to investigate and order the abatement of public

nuisances, and how that authority affects the nature of our

review. Finally, we discuss the evidence before the board and

the validity of the resulting cease and desist order.

a. Certiorari review. Although "the proper standard of

review under the certiorari statute is flexible and case

specific, . . . as with review under G. L. c. 30A, § 14, . . .

ultimately [the review must] turn on whether the agency's

decision was arbitrary and capricious, unsupported by

not reviewable "before they [can] be carried into effect,"
Stone, supra at 387, but are reviewable, among other ways, in
enforcement proceedings, id. at 388, such as the board commenced
here.

9 We are "mindful that 'there is no requirement that a
complaint state the correct substantive theory of the case,' and
that '[a] complaint is not subject to dismissal if it would
support relief on any theory of law' (citation omitted)." Haas
v. Commissioner of Correction, 103 Mass. App. Ct. 1, 6 (2023),
quoting Gallant v. Worcester, 383 Mass. 707, 709-710 (1981).
9

substantial evidence, or otherwise an error of law." Hoffer v.

Board of Registration in Med., 461 Mass. 451, 458 n.9 (2012).

See Murphy v. Commissioner of Correction, 493 Mass. 170, 173

(2023); Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591,

604-605 (2017). Because we are reviewing the same record of

board proceedings as was before the Superior Court, "we review

the record . . . without giving the view of the Superior Court

judge any special weight." Doe v. Superintendent of Sch. of

Stoughton, 437 Mass. 1, 5 (2002). See Macero v. MacDonald, 73

Mass. App. Ct. 360, 366 (2008).

b. Authority of local board of health. Under G. L.

c. 111, § 122, a local "board of health shall examine into all

nuisances, sources of filth and causes of sickness within its

town . . . which may, in its opinion, be injurious to the public

health, [and] shall destroy, remove or prevent the same as the

case may require." The board "shall order the owner or occupant

of any private premises, at his own expense, to remove any

nuisance, source of filth or cause of sickness found thereon

within twenty-four hours, or within such other time as it

considers reasonable, after notice."10 G. L. c. 111, § 123.

10"If the owner or occupant fails to comply with such
order, the board may cause the nuisance, source of filth or
cause of sickness to be removed, and all expenses incurred
thereby . . . shall be recoverable from such owner or occupant
in an action of contract." G. L. c. 111, § 125.
10

Thus, "[b]oards of health have plenary power . . . to remove or

prevent nuisances, sources of filth and causes of sickness."

United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass.

621, 623 (1971).

The board here focused on whether PJK was causing a public

rather than a private nuisance.11 "[A] nuisance is public when

it interferes with the exercise of a public right by directly

encroaching on public property or by causing a common injury"

(citation omitted).12 Sullivan v. Chief Justice for Admin. &

Mgt. of the Trial Court, 448 Mass. 15, 34 (2006). "A public

nuisance is an unreasonable interference with a right common to

the general public," and when a court is asked to find a public

nuisance, "[the] court may consider, inter alia, '[w]hether the

conduct involves a significant interference with the public

health, the public safety, the public peace, the public comfort

or the public convenience.'" Id., quoting Restatement (Second)

of Torts § 821B (1979) (Restatement § 821B). A public nuisance

includes an interference "with the public comfort, as in the

11A board of health may investigate and act against "all
nuisances," G. L. c. 111, § 122, and may order the abatement of
"any nuisance." G. L. c. 111, § 123. The exact reach of this
language is not before us.

12A private nuisance, in contrast, occurs when a defendant
"cause[s] a substantial and unreasonable interference with the
use and enjoyment of the property of [another]" (quotation and
citation omitted). Rattigan v. Wile, 445 Mass. 850, 856 (2006).
11

case of widely disseminated bad odors, dust and smoke."

Restatement § 821B comment b. "Whether a nuisance exists

ordinarily is a question of fact"; "[e]ach case must depend upon

its own facts and no rule can be formulated which will be

applicable to all cases." Strachan v. Beacon Oil Co., 251 Mass.

479, 485, 487 (1925).

What matters here is not whether we think PJK's operations

caused a public nuisance but, instead, whether the board could

properly so conclude. On certiorari review, as on G. L. c. 30A

review, "[i]t is for the agency, not the courts, to weigh the

credibility of witnesses and to resolve factual disputes. A

court may not displace an administrative board's choice between

two fairly conflicting views, even [if] the court would

justifiably have made a different choice had the matter been

before it de novo" (citation omitted). Perisho v. Board of

Health of Stow, 103 Mass. App. Ct. 593, 600 (2023).

Moreover, here the governing statute directs the board to

"examine into all nuisances . . . and causes of sickness within

its town . . . which may, in its opinion, be injurious to the

public health" (emphasis added). G. L. c. 111, § 122. Although

the board's opinion is not conclusive, the language of § 122

reinforces that we owe deference to the board's view of what

constitutes a public nuisance.
12

A further consideration in reviewing a board of health

decision is that "[b]oards of health are likely to be composed

of laymen not skilled in drafting legal documents, and their

orders should be read with this fact in mind. They should be so

construed as to ascertain the real substance intended and

without too great attention to niceties of wording and

arrangement." Board of Health of Wareham v. Marine By-Products

Co., 329 Mass. 174, 177 (1952). Thus, the Supreme Judicial

Court has declined to decide "to what extent, if at all, a board

of health . . . is bound to make express findings of facts

required to support its order."13 Id. It is sufficient if a

board's order may be "properly construed" to contain the

necessary statements. Id. "It is the substance of the matter

dealt with by the board of health that is to be regarded rather

than forms and words." Kineen v. Board of Health of Lexington,

214 Mass. 587, 591 (1913).

c. Validity of board's order. We now review the evidence

before the board. We conclude that the board's order was

13Although the court in Board of Health of Wareham was
addressing board action under G. L. c. 111, § 143, we think the
principle is applicable here. At issue in in that case was a
board's authority to prohibit, within a city or town, any "trade
or employment which may result in a nuisance or be harmful to
the inhabitants, injurious to their estates, dangerous to the
public health, or may be attended by noisome and injurious
odors," except at such locations, if any, as the board may
assign. G. L. c. 111, § 143. See Board of Health of Wareham,
329 Mass. at 176-177.
13

supported by substantial evidence and was neither arbitrary and

capricious nor based on any error of law. See Hoffer, 461 Mass.

at 458 n.9.

i. PJK's submissions. In advance of the board hearing,

PJK submitted a variety of materials regarding the relocated

plant. These included the Department of Environmental

Protection's (DEP) final air quality plan approval, as well as a

town building permit, certificate of project completion, and

supporting engineering reports. PJK also submitted four

government and industry reports that showed, according to PJK,

that "odors and fumes from asphalt production pose no health

risk to PJK's employees or neighboring residents." Those

reports, however, did not support PJK's sweeping assertion.

First, PJK submitted a 2002 notice from the United States

Environmental Protection Agency (EPA) announcing that it had

removed asphalt concrete manufacturing plants from the listing

of "major sources" of hazardous air pollutant (HAP) emissions

that EPA maintains under the Federal Clean Air Act (CAA). See

42 U.S.C. § 7412. That statute, however, generally defines

"major source" as a stationary source that emits a volume of ten

or more tons per year of HAP.14 Nothing in the 2002 notice

14"Major source" is generally defined for CAA purposes as
"any stationary source or group of stationary sources located
within a contiguous area and under common control that emits or
has the potential to emit considering controls, in the
14

suggested that where a source is not a "major source" of HAP,

that means that it emits no HAP or poses no health risk.

Second, PJK offered a 2007 study of seven asphalt plants

around the country, conducted by an agency within the United

States Department of Health and Human Services (HHS). PJK

highlighted the study's conclusions that, in the categories of

volatile organic carbons, polycyclic aromatic hydrocarbons,

hydrogen sulfide, and particulates, "there do not appear to be

any chemicals or compounds at levels that would pose a public

health hazard." The HHS study also concluded, however, that in

communities near asphalt plants, among "the compounds most

capable of posing a health hazard" were sulfur dioxide and

nitrogen oxides; that sulfur dioxide was "highly reactive and at

sufficiently high levels can cause irritation to the eyes and

upper respiratory system"; and that sulfur dioxide and nitrogen

oxides "ranked higher than [hydrogen sulfide] in their degree of

toxicity, potential health risk and/or odor." Further, the

study found that "there remains a data gap for evaluating"

aggregate, 10 tons per year or more of any [HAP] or 25 tons per
year or more of any combination of [HAPs]." 42 U.S.C.
§ 7412(a)(1). Any stationary source of HAP that does not emit
at least those levels of HAP is defined as an "area source."
42 U.S.C. § 7412(a)(2). Area sources are subject to regulation
under the CAA. See, e.g., 42 U.S.C. §§ 7412(c)(3), (5);
7412(d)(1), (5).
15

whether those substances were present at hazardous levels near

asphalt plants.

Third, PJK cited a 2016 document from the California

Environmental Protection Agency's carcinogen identification

committee. The committee recommended that, for purposes of

action under California's Safe Drinking Water and Toxics

Enforcement Act of 1986, asphalt and asphalt emissions

associated with road paving should be assigned a "low" priority.

In the same document, however, the committee recommended that

asphalt and asphalt emissions associated with roofing be

assigned a "medium" priority. The document did not make any

recommendation regarding asphalt manufacturing plants or

regarding health effects other than cancer.

Fourth and finally, PJK cited a 2018 report prepared by a

private engineering firm for the National Asphalt Pavement

Association. The report compared emissions from asphalt

pavement mixture plants with other emission sources including

wood stoves, bakeries, and gasoline stations. The report

concluded that an asphalt plant causes the average outdoor

ambient air level of smaller particulates (less than 2.5 microns

in diameter) to increase by only four percent at a distance of

1,000 feet from a plant's "dryer stack." The report stated that

this was less than the impact that heating a home with a wood

stove would have on particulate levels inside the home. The
16

report contained only a brief mention of the health effects of

asphalt plant emissions.15

PJK's prehearing submissions also included a map and chart

of complaints about odors from PJK's plant. These materials

showed that nineteen different households had filed eighty-one

odor complaints since September 2021. PJK emphasized that

fifty-six of the complaints had come from the same nine

households, which the map showed were located to the north,

south, or west of PJK's plant. (To the east of the plant is

PJK's quarry and a large uninhabited area.) PJK thus asserted

that "the vast majority of complaints come from the same handful

of residents." PJK further asserted that its personnel had

investigated and were unable to confirm many of the complaints,

and that other complaints were made in the hours before or after

plant operations and thus could not be attributed to the plant.

PJK thus argued that it appeared the persons complaining

were either "abnormally sensitive to these particular odors, or

[were] suffering physical or mental ailments not attributable to

the odors," particularly given that "the general health of the

15The report stated only that studies indicated greater
concern over the potential adverse health effects of smaller
particulates as compared to larger particulates. The report did
not otherwise address the health effects either of particulates
or of any of the other asphalt plant emissions -- formaldehyde,
polycyclic aromatic hydrocarbons, and benzene -- that were a
particular focus of the report.
17

many employees [at PJK] . . . has been good." PJK quoted these

phrases from Strachan, 251 Mass. at 484, and asserted that, like

the oil refinery held not to be a private nuisance in Strachan,

PJK's asphalt plant could not constitute a nuisance.

Although not mentioned by PJK, the chart reflected

complaints not merely from residents of nearby homes but also

from persons using South Main Street (the road in front of PJK's

plant), persons patronizing nearby businesses, and persons

located three-quarters of a mile or a mile away from the plant.

ii. Evidence at board hearing. At the hearing, the

assistant health agent offered in evidence copies of additional

odor complaints submitted by residents. These included

complaints from twenty-two additional households beyond the

nineteen already represented in PJK's chart. The complaints

concerned odors at homes, in neighborhoods, on roads, and at a

school bus stop during drop-off time.

The board then heard testimony from residents. Six

residents (including two not represented in the written

complaints) testified about odors from the plant itself. One of

those six, as well as a seventh resident, also testified about
18

odors coming from insufficiently covered trucks carrying hot

asphalt out of the plant onto nearby roads.16

The residents described the odors as "horrific,"

"atrocious," and "offensively strong and pungent." Four

residents testified that the odors caused their eyes to burn or

water, three reported burning or irritation to their noses or

sinuses, two reported sore throats, one reported nausea and

dizziness, and another reported slight headaches. Six testified

that the odors made them go or stay inside and interfered with

their use or enjoyment of their properties. A seventh testified

that she no longer sat outside in front of her home because of

fumes and odors from the freshly loaded trucks.

The residents further testified that the odors were not

merely brief conditions that came and went in a matter of

minutes. They were a problem several days per week or more,

depending on wind conditions.17 Several residents expressed

concern about their own health and that of their families or

their neighbors.

16Another resident testified that he had previously had
issues with the odor, but that at the time of the hearing, it
was not a problem, because the plant was not operating.

17The assistant health agent testified that some of the
complaints he investigated were for "fleeting odors you get for
five minutes . . . [a]nd then maybe ten minutes later, it comes
back again."
19

Most of the residents agreed that the problem had become

substantially worse since PJK relocated the plant to the front

of its property, i.e., closer to "where it's very residential."

Two residents stated that they understood PJK had to operate its

business but that PJK also needed to be a "good neighbor[]."

The assistant health agent testified that when he went to

investigate conditions near the plant, the odor was

"horrendous," lasted throughout his fifteen-minute visit, made

his eyes water, and left him feeling dizzy for one-half hour

after leaving the site. He had received some training from DEP

on detecting nuisance odor, including on the use of a

seriousness scale of one to seven. He testified that at the

home of one resident, he rated the odor as level four, but at

another home he rated the odor as a seven for the duration of

his visit, a "full-on assault of . . . stink."

The assistant health agent also suggested that when the

plant had been located at the back of PJK's property, there was

more time for fresh asphalt loaded into trucks to cool down, and

for fumes to dissipate, before the trucks came close to

residences. With the relocated plant, however, he could observe

fumes coming off of trucks as they were being loaded, after

which they immediately drove onto South Main Street, full of hot

asphalt and with inadequate coverings.
20

PJK, for its part, emphasized that it was operating in

compliance with zoning regulations and that its employees had

not experienced the types of effects to which the residents had

testified. PJK acknowledged that all asphalt plants emitted

odors but asserted that the four reports it had submitted showed

that asphalt "does not cause" watery eyes or throat symptoms.

PJK asserted that it was operating under "the strictest

permit the DEP has ever issued for hot asphalt plants," using

"best available control technology" to limit dust, noise, and

odor. In response to a board question about how often DEP

inspected the plant, PJK stated that DEP could inspect whenever

it wished to do so. When pressed, however, PJK stated that DEP

had not actually made any unannounced inspection of the plant

since its relocation, nor was PJK aware of any scheduled

inspection having occurred.

PJK also answered questions from board members about plant

operations. PJK assured the board that the plant's "blue smoke"

filter system was operated every day and maintained weekly.18

Although one resident testified that he could "literally see the

emissions wafting through [his] neighborhood," PJK's

environmental compliance manager stated that this was

18A document submitted by PJK explained that "[b]lue smoke
is an aerosol mist comprised primarily of hydrocarbons that have
vaporized from liquid asphalt cement."
21

impossible, because PJK's emissions were required to meet

opacity standards. He agreed, however, that fumes would be

visible as trucks were being loaded with asphalt. Asked whether

those trucks were properly covered when they left the plant, PJK

asserted that no truck could leave the property without a tarp,

but that PJK could increase its inspections of the adequacy of

the tarps being used.

iii. Additional submissions. After hearing the above

testimony, the board held the record open for additional

submissions. PJK subsequently submitted documentation of its

air quality modeling approach, its best available control

technology, and its request to DEP for an extension of time to

complete compliance testing. PJK also submitted materials

documenting its blue smoke control system and its truck tarp

inspections.

The board retained an industrial hygienist to review the

evidence submitted up to that point. The industrial hygienist's

report concluded that the complaints from nearby residents

supported a finding that PJK was creating or contributing to a

nuisance, and that research showed a correlation between plant

emissions and public health. The report recommended that PJK

verify the functioning of all plant controls; that strict

requirements for truck coverings be enforced in order to

minimize emissions; and that if emissions could not be reduced,
22

the plant should be moved farther away from the road and from

residential neighborhoods.

In response, PJK submitted a letter from two scientists it

had retained -- a toxicologist and a physicist specializing in

exposure and risk assessment -- disagreeing with the industrial

hygienist's conclusions. The scientists asserted that ambient

air in and around the town of Acushnet met EPA air quality

standards and that "site-related impacts" fell within limits set

by DEP. The scientists concluded, based on "both the measured

and the modeled impacts" of PJK's operations, that they did "not

pose significant risks to the public health."

The board's industrial hygienist, in turn, responded with a

letter stating that PJK's scientists had cited no data to

substantiate their assertions about ambient air quality near the

plant itself (as the nearest particulate matter monitoring

station was twenty miles away) or about the plant's compliance

with DEP limits. The industrial hygienist disclaimed any

ability to opine on whether the plant posed "significant risks"

to public health. He reiterated, however, that PJK was

incorrect to assert that studies showed asphalt plant emissions

"do not pose a health risk." His view was that there was a

correlation between such emissions and health effects. Although

"finding a true causal connection is scientifically challenging

and requires carefully controlled study and statistical models
23

to prove," residents' reports of the nature and frequency of

symptoms caused by PJK's plant emissions "must not be

dismissed." He again recommended that, "[i]f odor complaints

and symptoms cannot be mitigated, the . . . plant should be

moved to a position further away from the road and adjacent

neighborhood receptors."

iv. Board's decision. In August 2022, the board

reconvened to deliberate. One board member stated that he found

the residents' testimony to be credible -- "people are not able

to be in their backyards and enjoy life the way it's supposed

to." He had read all of PJK's submissions, as well as those

from the industrial hygienist, and "[n]owhere in this

documentation [did he] find it refutes what's going on with the

residents." He therefore moved to uphold the cease and desist

order. The board's chair agreed, adding that he not only had

read all of the information presented but also had gone by the

area that morning and found the odor "pretty horrendous." The

board then voted to uphold the order.19

The board in its written decision found, as stated supra,

that "the odor originating from [PJK's property] caused

neighboring property owners to be prevented from enjoying the

The board's vote was two to zero. A third board member
19

was present at the evidentiary hearing but was absent from the
meeting at which the vote was taken.
24

outside of their properties because of the smell and burning of

their eyes, nose and throat due to the odor and noxious air

produced by the [asphalt] plant." The board concluded that the

plant was a nuisance, and it ordered PJK to cease and desist

from any operations that caused noxious odors and fumes to

spread beyond the boundaries of PJK's property.

v. Analysis. We think it plain that the record contains

substantial evidence supporting the board's conclusion that

PJK's plant is a public nuisance. A public nuisance, as stated

supra, includes "an unreasonable interference with a right

common to the general public," which may in turn include "a

significant interference with the public health." Sullivan, 448

Mass. at 34, quoting Restatement § 821B.

The board credited the residents' testimony that noxious

odors from PJK's plant caused their eyes and noses to burn and

their throats to become sore.20 The residents testified that

they experienced these odors several times a week and that their

ability to use their properties and remain outside their homes

was impaired. Several residents testified to the effects of

odors emanating from trucks carrying hot asphalt out of the

plant and onto public roads. Although only a limited number of

20The board's relatively brief written decision did not
mention other symptoms testified to by some residents, or by the
assistant health agent, such as nausea, dizziness, and
headaches.
25

residents appeared at the hearing to testify, the board had

documentary evidence of complaints from at least forty-one

households, including households on all three sides of the plant

where houses stood, permitting the board to conclude that the

problem was widespread.

The complaints were not confined to conditions on

residents' private properties but, as discussed supra, reported

odors in neighborhoods, on public roads, and at businesses. In

any event, the board could reasonably infer that, where many

homes were affected, including homes up to a mile away from the

plant, the odors did not stop at property lines but affected

those on public roads as well.

The board was also entitled to view the evidence as showing

a significant interference with the public health. It is not

for us to disagree with the board and insist that burning eyes

and noses and sore throats do not interfere with residents'

health. Nor was the board required to accept PJK's assertion

that "odors and fumes from asphalt production pose no health

risk." The four reports PJK relied on for that assertion did

not, individually or together, support any such broad

conclusion. To be sure, the scientists retained by PJK asserted

that the plant did "not pose significant risks to the public

health." But the board could choose to credit its own

industrial hygienist's view that the scientists' opinion was
26

unsupported by any data about air quality or emissions in the

immediate vicinity of the plant, that the emissions could not be

said to pose no health risk, that plant emissions generally were

correlated with adverse health effects, and that the residents'

symptoms "must not be dismissed."

The board could also properly reject PJK's claim that the

persons complaining were "abnormally sensitive" to odors or

"were suffering from physical or mental ailments not

attributable to the odors." Strachan, 251 Mass. at 484.

Although PJK cross-examined several of the residents who

testified, PJK did not attempt to elicit any evidence about

their sensitivities or the state of their health. PJK's

argument in this regard was thus entirely unsupported. More

generally, PJK's reliance on Strachan, where the court affirmed

a finding that a particular oil refinery did not constitute a

private nuisance, id. at 485-487, does not govern in this public

nuisance case.

The board could find a public nuisance without finding that

the whole town was affected or that the odors were present

without letup twenty-four hours per day. The court held in

Board of Health of Wareham, 329 Mass. at 175, that a board could

enforce a cease and desist order under G. L. c. 111, § 143,

against a processor whose fish-dehydration operations emitted

foul odors that constituted a nuisance affecting "residents of
27

certain areas [of] the town of Wareham in the enjoyment and

comfort of their homes" (emphasis added). See Commonwealth v.

Harris, 101 Mass. 29, 30 (1869) (loud disturbance in street

constituted public nuisance even though not all those present

were offended). In the words of Restatement § 821B,

"[i]t is not . . . necessary that the entire community be
affected by a public nuisance, so long as the nuisance will
interfere with those who come in contact with it in the
exercise of a public right or it otherwise affects the
interests of the community at large. . . . In any case in
which a private nuisance affects a large number of persons
in their use and enjoyment of land it will normally be
accompanied by some interference with the rights of the
public as well. Thus the spread of smoke, dust or fumes
over a considerable area filled with private residences may
interfere also with the use of the public streets or affect
the health of so many persons as to involve the interests
of the public at large."

Restatement § 821B comment g.21

That the plant is located in an area zoned for industrial

use and was constructed in accordance with PJK's building permit

does not immunize the plant from being found to create a public

nuisance. Although regulations promulgated by a board of health

21"A 'public right,' for purposes of a public nuisance, is
more than an aggregate of private rights by a large number of
injured people" but instead "is the right to a public good, such
as an indivisible resource shared by the public at large, like
air, water, or public rights-of-way." 58 Am. Jur. 2d Nuisances
§ 31 (2023). "The test for interference with a right common to
the general public, as an element of a public nuisance, is not
the number of persons annoyed but the possibility of annoyance
to the public by the invasion of its rights." Id. See, e.g.,
State v. Lead Indus. Ass'n, 951 A.2d 428, 448 (R.I. 2008), and
cases cited.
28

"must not contravene the zoning laws, . . . the fact that a

trade or employment is permitted under such laws does not mean

that it need not also comply with valid orders and regulations

of a board of health." Waltham v. Mignosa, 327 Mass. 250, 253

(1951) (Mignosa). The judge thus erred in relying on the

proposition that a "plaintiff cannot restrain as a nuisance the

doing in a reasonable and careful manner of the very act

licensed." Czapski v. Sun Oil Co., 303 Mass. 186, 186 (1939).

See Strachan, 251 Mass. at 487-488. Czapski and Strachan were

private nuisance cases, brought by private plaintiffs; this is a

public nuisance case, and thus Mignosa governs.22 The board

could find PJK's operations to constitute a public nuisance

notwithstanding its compliance with zoning regulations.

Conclusion. In PJK's judicial review action, the judgment

is reversed, and judgment shall enter affirming the decision of

22Moreover, it may be questioned whether PJK held a license
to emit noxious odors from its plant. Among the express
conditions on DEP's final air quality plan approval is that
"should any nuisance condition(s), including . . . odor . . .
occur as a result of the operation of the [f]acility, then the
[p]ermittee shall immediately take appropriate steps including
shutdown, if necessary, to abate said nuisance condition(s)."
PJK thus makes no argument that the mere existence of the DEP
plan approval preempts the board's authority vis-à-vis the
plant. Further, the evidence before the board was that DEP had
not inspected the plant since its relocation, and that PJK had
not yet conducted compliance testing on the plant, because
(according to PJK) the plant had not yet operated at a
sufficiently high percentage of its rated capacity to make such
testing acceptable to DEP.
29

the board. In the board's enforcement action, the judgment of

dismissal is vacated, and the case is remanded for such further

enforcement proceedings as may prove to be necessary.

So ordered.