Attorneys Jeffrey T. Blake, Jonathan G. Murray, and Connor A. Mullen Secure Appeals Court Victory in Public Health Enforcement Action

In a decision issued on April 12, 2024, the Appeals Court reversed the Superior Court in P.J. Keating Company v. Town of Acushnet, et. al., Massachusetts Appeals Court, No. 23-P-629 (Apr. 12, 2024) and ruled in favor of the Town of Acushnet Board of Health’s order to halt operations of a hot-mix asphalt plant that caused noxious odors and emissions detrimental to the public health.

In 2022, the Town received numerous complaints of odors, headaches, nausea, and dizziness from residents surrounding a hot-mix asphalt plant located in the Town of Acushnet.  The Board of Health, after investigating and confirming the presence of nuisance odors, issued a cease-and-desist order requiring the hot-mix asphalt plan to halt operations until the nuisance odors were abated.  On appeal, the Board of Health held an evidentiary hearing at which it heard testimony from residents who testified about the adverse effects of odors and fumes from the asphalt plant.  The Board of Health concluded that the asphalt plant was a “nuisance, source of filth, and cause of sickness” in the Town, and affirmed the issuance of the cease-and-desist order.

On judicial appeal, the Superior Court found in favor of the asphalt plant operator and cited a “lack of credible evidence” before the Board of Health that the odor and emissions from the asphalt plant were injurious to the public health.  However, the Appeals Court reversed the Superior Court’s decision and concluded that the Board of Health’s cease-and-desist order was valid, that the Board of Health’s decision was supported by substantial evidence, and affirmed the Town’s finding that the asphalt plant was a public nuisance.

KP Law is pleased to have secured another important victory for the Town of Acushnet and Boards of Health across the Commonwealth.

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