SWAMPSCOTT — Concerns over Holcim Inc.’s pending litigation against the town paused the Select Board’s approval of the excavating company’s 2023 permit at a public hearing Wednesday evening.
Holcim, formerly known as Aggregate Industries, has conducted excavating operations at the quarry on the border between Swampscott and Salem for more than a century. In November 2021, the company filed a complaint in U.S. District Court in Boston, claiming the town regulated and restricted Holcim’s business operations in order to take the site — physically and through regulation — after the town restricted its earth-removal permit. The company also claimed that the town’s restrictive permitting process cost Holcim $34 million in lost revenue.
Last month, the court dismissed the company’s claim that Swampscott physically took Holcim’s property unconstitutionally, but admitted Holcim’s claim that the town’s restrictive permitting process constituted a regulatory taking.
“Although it is not dispositive that the government action here was carried out through a permitting process, it is dispositive that the town has not ‘physically taken property for itself or someone else,’” the court stated in the memorandum.
With the company’s current blasting permit set to expire June 30, members of the Earth Removal Advisory Committee (ERAC) met with the Select Board and attorneys hired by Holcim to discuss issuance of a new blasting permit.
ERAC Chair Joe Markarian reminded the town that the proposed permit contains similar provisions to those specifically referenced in the lawsuit. He said the proposed permit is a living document, and subject to change with the status of the ongoing lawsuit.
“The permit you have before you is not one that we roll over from year to year. It’s something that we give thoughtful consideration to,” Markarian said. “There are provisions of the permit that contain topics that overlap with the current litigation that’s pending between Aggregate and the town. We have made no changes to those provisions.”
Select Board member Peter Spellios and Town Administrator Sean Fitzgerald questioned Holcim’s lead attorney in the case, Aaron Rosenberg, who said Holcim or its contractors have paid “almost no” property-damage claims to Swampscott residents since the mid-1990s.
Concerns that the permitting process could interfere with the terms of a potential future settlement or an update in the litigation process prompted the board to reschedule the public hearing on the permit process for June 26 at 7 p.m., after town counsel has the opportunity to discuss the lawsuit with Holcim and its attorneys.
“We have a number of parties here and we all need to work this out. Maybe there is a hope that we can find some kind of a settlement,” Fitzgerald said. “We’ve got to really sit down and study this.”
Spellios expressed concern that Holcim paid so few claims relating to property damage or injuries from blasting over the course of decades.
“I don’t believe the concerns have gone away. I think the sentiment is still very clear that… we regulate more severely virtually every other business in town than we do this one,” Spellios said. “I continue to be troubled by the fact that we have only one business in town that regularly uses TNT and explosives… and we don’t see any accountability over decades.”
Fitzgerald commented that the process of regulating blasting through permits is about the health and safety of the town.
“This is a regulatory permit about the quality of life for the town, and we should take that as diligently as we would take any responsibility in perspective of the federal lawsuit that has been filed against the town,” Fitzgerald said.
