Judge orders shutdown of Brayton Pt. scrap metal operation
Sides with 3 women who said metal dust was damaging their health
A STATE LAND COURT JUDGE on Monday ordered a scrap metal operation at Brayton Point in Somerset to shut down within the next two weeks after concluding that the operation spewed metal dust into a nearby neighborhood in violation of a town bylaw.
The decision is a huge victory for the town and three women — Kathy Souza, Nancy Thomas, and Nicole McDonald — who complained about the dust and what it was doing to their neighborhood and to their health. Souza helped organize neighborhood opposition to the scrap metal operation, creating a powerful political movement in the community that propelled her and other opponents on to the town’s Select Board.
Judge Robert B. Foster’s decision doesn’t require the scrap metal operation to shut down permanently — only until the town’s Zoning Board of Appeals approves a plan for containing the dust. But winning that approval could take considerable time given the current political climate in the community and Brayton Point LLC, the owner of the property, may decide to move in a different direction.
Brayton Point LLC, an offshoot of a St. Louis-based company called Commercial Development Inc., originally came to town as something of a white knight. It razed what had been one of New England’s largest coal-fired power plants at Brayton Point and hoped to transform the property into a staging area for the emerging offshore wind industry. But a near two-year delay in the permitting of offshore wind farms under Trump administration led Commercial Development to lease a portion of its empty property to a scrap metal exporter and a road salt distributor.
With his decision on Monday, Foster settled a dispute that has bitterly divided Somerset for more than a year. Souza, Thomas, and McDonald and the town’s Zoning Board of Appeals claimed the scrap metal operation violated a town bylaw requiring that no dust escape the property. Brayton Point LLC contended the no-dust standard was untenable and its emissions were well below monitoring limits.
Foster rejected both views, ultimately adopting a fairly common-sense approach to the problem.
“The bylaw does not require that no dust at all leave the property. However, if enough dust leaves the property so that its effects are seen and felt by the residents of the neighborhood, then Brayton Point has not effectively confined the dust to the property,” Foster said in his decision. “Based on the evidence, I find that this is what has happened. Dust from the scrap metal operation is leaving the site and being blown into the neighborhood, where it causes harm to the property and health of the residents.”
Foster also ruled that, because Souza, Thomas, and McDonald faced health challenges because of the dust, they had legal standing to challenge town decisions that allowed the scrap metal operation to continue operating. Brayton Point LLC ultimately sued the three women and the town’s Zoning Board of Appeals; the case went to court but the scrap metal operation never shut down during the appeal.
Souza has lived in the neighborhood across a small body of water from the scrap metal operation for 30 years. “She can see the scrap metal operation from her bedroom window,” Foster wrote in his decision. “Ms. Souza testified that orange dust accumulates on her upstairs window, her kayak, and her birdbath. She has a metallic taste in her mouth and irritation in her eyes when the wind is blowing from the site. She has experienced an exacerbation of her asthma, so that she has more difficulty breathing and is having asthma attacks on humid days. She is using daily medication rather than a rescue inhaler. Ms. Souza’s observations have occurred at least weekly both before and after the cease and desist order was lifted on December 31, 2020, and continued until the day of trial. If anything, Ms. Souza believes the dust problem has gotten worse since the cease and desist order was issued. I observed the dust at her property at the view. I credit her testimony about the effects of dust on her and her property.”Foster said the scrap metal operation added insult to injury by failing to tarp many of the trucks carrying scrap metal to Brayton Point. “Scrap metal dust blows directly from uncovered trucks carrying loads of scrap metal onto the property,” Foster said. “In high winds, it is not difficult to see how that dust blows over the water to Ms. Thomas’s property. Ms. Thomas, therefore, had standing to raise the appeal regarding uncovered trucks entering the Brayton Point property.”
Officials from Commercial Development declined comment.