FREETOWN — After nearly 5 years of litigation — and to the disappointment of some residents — the town of Freetown has settled and reached an agreement with scrap metal processor Excel Recycling over its operations and licensing terms. 

“I understand there will be folks upset we decided to settle.  This board inherited this situation due to the unintended consequences of decisions made in the past,” said Trevor Matthews, Freetown Board of Selectmen Chair, at an April 14 meeting held at Apponequet High School Auditorium, where the Board went over details of the agreement with attendees.

Matthews emphasized that violations of terms of this agreement by Excel means the Board will have the right not to renew its business license.  “We will finally have legal standing to defend the decision, something we currently do not have,” he said.

The terms of the agreement, dated April 4, 2022, from Bristol Superior Court, finalizes its license classification as a Junk Dealer and establishes new requirements related to operating hours, a 24-hour hotline for lodging complaints, and new noise mitigation measures for its scrapyard. 

The agreement will also introduce additional revenue for the town in the form of an annual $25,000 gift to be used for any municipal purpose, as well as another annual payment based on $0.75 per ton of scrap processed by Excel (estimates in the agreement by Excel come out to $75,000 the first year), which will increase in subsequent years until it reaches $1.50 a ton.

Representation for Excel Recycling was not present at the Selectmen meeting.  In an official press release submitted by Jonathan Costa, Vice President of Excel Recycling, Costa stated “we had to protect the interests of our business and our employees” with regards to litigation.  Costa concluded that Excel Recycling “will continue to implement best practices and to invest in technology to make us good neighbors in the Industrial Park.”

Since Excel Recycling began operations in Freetown’s industrial park back in December 2016 abutting neighbors, located on Alexandria Drive and High Street, have lodged complaints alleging smoke emissions and oily odors permeating throughout the neighborhood, as well as flying debris and excessive noise resulting from the company’s scrap metal shredder operation. 

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“If I’m driving down the street and I throw all this out of my window, what happens?  I get fined, right?  But it’s OK for Excel to pollute the whole neighborhood?” exclaimed William Matos, abutting neighbor to Excel Recycling, who was nearly escorted out of the meeting by a police officer for trying to dump ziplocked bags of trash onto the Board’s table. 

The bags, according to Matos, were filled with debris originating from Excel’s scrap yard that land on his property every day. 

“This isn’t just litter. This isn’t a McDonalds Happy Meal tossed out the window.  This is technically illegal disposal of hazardous waste,” exclaimed Leia Adey, Freetown resident, defending Matos' action intended to incite a response from the Board.

The neighbors’ complaints served as the catalyst for increased scrutiny and investigation by the Board of Selectmen and the Board of Health.  When the BOS renewed Excel’s business license in May 2017 with restrictions to their operating hours, Excel objected and introduced the first litigation by July.

Citing residents' complaints, as well as testimonial from the town’s Health Agent and Excel’s history of noncompliance – at the time – with numerous Department of Environmental Protection (DEP) regulations, the Selectmen chose not to renew Excel’s Junk Dealer License in May 2018, despite Excel spending close to $2 million for mitigation measures to comply with its DEP permitting.    

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Days later, Excel resumed operations. The town issued a cease and desist order and Excel countered by filing a lawsuit for injunctive protection in Superior Court.  Excel continued to operate in town unlicensed and without local restrictions for close to a year and a half.  Judgment came in October 2019 when the Court ruled the Board acted capriciously, ignored evidence when it denied Excel a new license, and introduced evidence at a hearing without allowing Excel the opportunity to refute.

The court ordered the Board of Selectmen to reissue Excel’s Junk Dealer license.   

According to records from Massachusetts Trial Court Case Access, a lengthy appeals process started in which Freetown appealed the October 2019 decision.  The appeal spanned all through 2020.  In February 2021, the Appeals Court transferred the case back to Superior Court. 

The Feb.18, 2021 ruling from Appeals Court summarized while it found error with the Superior Court judge’s decision, it was still on Excel's side and wouldn’t overturn the ruling.  Superior Court told the board a new hearing had to take place between Freetown and Excel Recycling regarding its business license.

Excel Recycling, during all this time, continued to carry on operations.

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Matthews, who was elected selectman in 2020, stated at the meeting the only two options by that point in 2021 were restarting more costly litigation with seemingly no end in sight ( at a cost of $250,000 so far, according to Matthews), or negotiating for an agreement that would put accountable restrictions on their business license. 

The board chose mediation and settlement.  “This is the better of two very bad options,” said Matthews. 

Matthews was one of only two selectmen at the April 14 meeting.  Jared Zager wasn’t present due to an emergency, according to Matthews.  The other Selectman, Carlos Lopes, was just elected to the position at the April 4 town election and wasn’t involved with mediation or agreeing on the settlement with Excel Recycling. 

According to Leia Adey, who started the citizens group Freetown Opposes Excel, consisting mostly of abutting neighbors, “everything got real quiet here” not long after the October 2019 court ruling.  She described a growing lack of transparency from the selectmen regarding litigation with Excel.  “We weren’t privy to much information anymore like in the past.  Everything was in executive session now,” she said. 

Another factor Adey pointed out was the changing board. Under the original litigation, the names representing town of Freetown were Robert Jose, Charles Sullivan, and Lisa Pacheco. 

Today, none of those individuals remain on the board. Jose left in 2019, Sullivan lost re-election in 2020, and Pacheco lost re-election in 2021. Adey sees this disconnect from new board members as a contributing factor for them choosing settlement over continued litigation.

The neighbors of Excel Recycling who spoke at the April 14 meeting indicated they didn’t believe anything would change from this settlement.

“All the mitigation they’ve done didn’t make a single bit of difference,” said Bob Lima, a resident of High Street for 36 years, who stated he also gets debris on his property all the time. 

Steve Tripp from Alexandria Drive called this meeting a “a puppet show” because the board never asked for input from any of the people this affects the most. “You basically said, ‘We’ve already settled, so here you go.’”

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Former Selectman Charles Sullivan — one of the names representing Freetown on the original litigation — asked how the board plans to enforce the new rules in the agreement?  “They won’t abide.  They never did with any other agreements we had,” he said, before adding “I would have never agreed on this.”

Board Chair Matthews insisted to the room “there’s nothing we could have done to shut them down.  The courts have shown there’s no willingness to shut them down.”

George Pucci, attorney for KP Law, representing Freetown, concurred with this sentiment when speaking during the meeting. “We’ve litigated all these years, and it's gone nowhere.  The court has taken every opportunity not to shut them down. At least we can try and negotiate a better arrangement that’s favorable and enforceable,” he said.

Resident Shirley Fiske, who stated she was worried about the long term affects of toxic materials on her two small children, asked why Freetown was so unsuccessful in shutting down Excel when environmental groups and officials shut down a scrap metal company at Brayton Point in Somerset. 

Pucci explained it was a different case where that company had a different business and license classification than Excel, and different standards to adhere to with its permitting.

Matthews and Pucci repeatedly dispelled the notion that litigation, specifically related to environmental and health issues, can’t be brought against Excel in the future.  Matthews explained the agreement was just in relation to the Junk Dealer license. 

“The lawsuit was with the license. It doesn’t prevent the town from going after them on environmental impacts,” said Matthews, who added individuals were free to pursue litigation in relation to environmental and health effects.

“This license means crap, and Excel knows it!  They came out and said they don’t need this license.  That it’s meaningless, said Adey to the Board, adding later the settlement “is unconscionable!”

Upon conclusion of the Selectmen meeting, several abutting neighbors were seen talking with members of Save Our Bay Brayton Point, a citizens group who fought against Eastern Metal Recycling’s operation in Somerset.  None of the members would give their names, but one stated they were here to support and offer assistance for the residents of Freetown living next to Excel Recycling.