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Tails
Administrator
2682 Posts |
 Posted - 02/13/2009 : 12:01:33 PM
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Friday, February 13, 2009
OK, here it is ... all 18 pages ...
SUFFOLK, ss.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVIL ACTION NO. 2006-0790-C
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff,
v.
COMPLAINT FOR
CIVIL CONTEMPT
NEW VENTURES ASSOCIATES LLC,
Defendant and Cross-Claimant,
v.
NEWBURYPORT CITY COUNCIL, ET AL,
Cross-Claim Defendants.
INTRODUCTION(see previous post)
PARTIES (not posting them; we all know who they are)
The trial starts April 23.
FACTS AND STATEMENT OF THE CONTEMPT
Procedural History
7. On February 23, 2006, the Commonwealth commenced the underlying action against defendant New Ventures, seeking injunctive relief and civil penalties for alleged violations of the Clean Air Act and the Solid Waste Management Act.
8. On October 20, 2006, the Court (Spurlock, J.) issued a Preliminary Injunction in this action, which was amended by order dated November 1,2006 (Spurlock, J.), and again on February 22, 2007 (Sanders, J.). The Preliminary Injunction, as amended (the "Order"), required that New Ventures install and operate air pollution control equipment and undertake other measures to prevent nuisance conditions and potential public health impacts arising from the release of noxious hydrogen sulfide gas and other landfill gas.
9. On September 20,2007, the Court (McLaughlin, J.) issued another injunctive order ("Supplemental Order") requiring that New Ventures place a temporary cover consisting of acceptable clay-like soils to a depth of at least one foot over an area of the Landfill known as the "Phase IA Area," and replace the tarps over this temporary cover in the Phase IA Area.
10. A true and complete copy of the Court's October 20,2006 Order, as amended by orders dated November 1,2006 and February 22, 2007, is attached as "Exhibit 1." A true and complete copy of the Court's Supplemental Order of September 20,2007 is attached as "Exhibit 2."
Relevant Requirements of the Order and Supplemental Order
11. Paragraph 1 (d) and Appendix A (Landfill Gas Control Protocol) of the Order require New Ventures to install and continuously operate a landfill gas pretreatment fitering system, consisting of three separate vessels housing pretreatment media and an enclosed flare, to control hydrogen sulfide and other landfill gas emissions to prevent nuisance odors and protect the health and safety of area business and residents living in the vicinity of the LandfiL.
12. Paragraph 1 (b) and Appendix A, Section D, of the Order require New Ventures to operate the pretreatment system so that the maximum concentration of hydrogen sulfide gas flowing into the enclosed flare does not exceed a performance standard of 1.01 lbs/h (pounds per hour). Paragraph 1 (b) and Appendix A, Section D, of the Order also require that the pretreatment system remove at least ninety-five percent (95%) of hydrogen sulfide from the landfill gas flowing into the enclosed flare, with a performance standard requiring that hydrogen sulfide removal not fall below the 95% threshold for any two hours over the course of any twenty- four (24) hour period.
13. Paragraph 1 (d) and Appendix A of the Order require New Ventures to continuously operate the pretreatment system and enclosed flare twenty-four (24) hours per day, seven (7) days per week.
14. Paragraphs 1 (d) and Appendix A, Section I of the Order require New Ventures to provide the MassDEP with the daily landfill gas sampling data, including the concentration of hydrogen sulfide gas flowing into and out of the pretreatment system, along with the flow rate of landfill gas entering the enclosed flare in order to demonstrate compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal performance standards for gas flowing into the enclosed flare.
15. Paragraph l(d) and Appendix A, Section C of the Order require New Ventures to contract with a qualified Massachusetts Registered Professional Engineer (the "Engineer") to coordinate, oversee, and monitor the operation and effectiveness of the landfill gas system and the other measures required for controllng hydrogen sulfide and other ambient gas emissions from the landfill, including compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal for landfill gas flowing into the enclosed flare. Paragraph 1 (d) and Appendix A also require that the Engineer conduct weekly inspections of the landfill gas control system and provide a Weekly Status Report to the Department within two (2) working days of conducting each inspection.
16. Paragraph 11 of the Order requires that the pretreatment system, including all three pretreatment vessels, remain in-place and completely intact at the Site until such time as MassDEP determines, in writing, that the pretreatment system is no longer necessary or required by the Clean Air Act or the Solid Waste Management Act.
17. Paragraph 1(1) and Appendix A, Section H of the Order requires that New Ventures continuously staff the Landfill twenty-four (24) hours per day, seven (7) days per week.
Paragraph 1 (1) and Appendix A also require that New Ventures respond to all odor complaints received from residents in the vicinity of the Facility and then report these complaints to MassDEP.
18. Paragraph 1 (1) and Appendix A, Section F of the Order require New Ventures to maintain and operate a meteorological station at the landfill and continuously collect data on the wind speed and direction, barometric pressure, and temperature.
19. Paragraphs 1 (u) of the Order requires New Ventures to remove odiferous leachate that has entered the Landfill's storm water basins.
20. Paragraphs 1 (v) of the Order requires New Ventures to maintain, improve and expand the Landfill's leachate control system in compliance with plans submitted to and approved by the MassDEP pursuant to the MassDEP's 2005 Administrative Consent Order with Penalty ("2005 ACOP"), which is attached to the Order as Exhibit 3. The final leachate control plans required by the 2005 ACOP as approved by MassDEP require that New Ventures maintain leachate tanks at less than seventy-five percent (75% ) of their capacity at all times, measure and record the leachate level in each leachate tank immediately prior to each pumping, maintain daily logs containing the date, time, liquid level and volume of leachate pumped from each tank; and submit the daily logs to the MassDEP by the 15th day of each month for the preceding month.
21. Paragraph 1 G) and 1 (v) and Appendix B of the Order require New Ventures to place and maintain tarps over the Construction and Demolition Material ("C&D Material") at the landfill in areas not covered by the landfill cap including the landfill access road. In addition, the Supplemental Order requires New Ventures to place and maintain one foot of clay-like soil covered with tarps over the C&D Material in the Phase IA Area of the Facility to control the generation and release of odiferous leachate and landfill gas from the landfiL.
22. In the event that the placement of C&D Material for use as landfill grading or shaping material has been shut down at the Landfill, Paragraph 13 of the Order requires that New Ventures continue to comply with other requirements of the Order, applicable MassDEP administrative orders, and 310 C.M.R. 19.000 et seq.
23. Because of ongoing violations of Order and Supplemental order detailed below, MassDEP ordered that New Ventures shut down all placement of C&D Material at the LandfilL. This shut down is stil in effect.
24. Among the requirements of the Order that must be complied with in the face of a shut-down ofC&D Material placement, New Ventures shall, without limitation, continue to operate the permanent landfill gas control system, including the pretreatment system and enclosed flare in compliance with the performance standards in Appendix A of the Order, continue to staff the Landfill twenty four (24) hours a day, seven days a week, and continue to control and manage leachate collection and releases at the Landfill.
25. Among the requirements of 3 10 C.M.R. 19.000 et seq. with which New Ventures must continue to comply in the face of a shut-down of C&D Material placement at the Landfill are maintenance of the integrity of the drainage structures so as to prevent erosion, as required by
310 C.M.R. 19.130 (19)(b), and ensuring that any siltation due to erosion does not migrate offsite, as required by 310 C.M.R. 19.130 (20).
New Ventures' Recent Violations of the Order and Supplemental Order and the August 26, 2008 Notice of Violations
26. In May, 2008, the Commonwealth and New Ventures reached a full settlement of this action. That settlement agreement, among other things, would make permanent the relevant injunctive portions of the Order and set a new, sequenced schedule for closing the landfiL. New Ventures has refused, however, to sign and fie that settlement unless and until the City of Newburyport approves an increase in the landfill internal volume (or "airspace") pursuant to a Host Community Agreement ("HCA") it entered into with New Ventures in 2002. On June 26, 2008, this Court allowed New Ventures' motion to join the City of Newburyport as a necessary party to this action, and the City fied counterclaims. Although New Ventures and the City have been in negotiations to resolve their competing claims, litigation of those claims is proceeding, with summary judgment papers scheduled to be filed in January, 2009.
27. With settlement of this action on hold and litigation of New Ventures' cross-claims and the City's counterclaims proceeding, significant compliance issues began to surface at the landfill over the summer, and there has been a recent upturn in odor complaints from area residents. See Affidavit of David C. Adams, Environmental Engineer iv in the Bureau of Waste Prevention, Solid Waste Management Section, MassDEP Northeast Regional Offce ("Adams Aff."), irir 8-64; Affidavit of John A. Carrigan, Chief of the Solid Waste Section, Bureau of Waste Prevention, MassDEP Northeast Regional Office ("Carrigan Aff."), irir 18-25.
28. On August 26,2008, the MassDEP notified New Ventures of multiple violations of the Order and Supplemental Order observed by MassDEP personnel at the Landfill between June 3, 2008 and August 13,2008 (the "Notice"). A true and complete copy of the Notice is attached as "Exhibit 3." The Notice demanded that New Ventures return to compliance and remedy the violations detailed in paragraphs 29 through 41, below. New Ventures responded to the Notice by letter dated September 10, 2008. Atrue and complete copy of this response is attached as "Exhibit 4." In New Ventures' September 10, 2008 letter and subsequent discussions with the Commonwealth, New Ventures asserts that the current problems at the landfill should be addressed as part of a closure plan filed with a settlement agreement once the current litigation of its cross claims against the City are resolved. That resolution could be several weeks or several months away. Remedy ofthe violations detailed in the paragraphs below can not be put on hold while litigation of this action proceeds, particularly when these violations contribute to nuisance conditions that threaten the public health and welfare.
29. Seven separate inspections of the Facility by MassDEP investigators on June 3, 4, and 6, July 18 and 29, and August 17 and 18,2008, revealed that only two of the required three pretreatment vessels were on-Site at the Landfill. See Adams Aff., ir 47; Carrigan Aff., irir 2l(b), 24, 25; Notice, ir 10.
30. Landfill inspections by MassDEP investigators on July 17 and 29, 2008, revealed that the enclosed flare, a critical part of the landfil's air pollution control system, was not operating. Adams Aff., ir 45, Notice, ir 11.
31. Review by MassDEP staff of daily landfill gas collection system monitoring forms submitted by New Ventures revealed that on at least fifteen (15) days between July 8 and July 28, 2008, hydrogen sulfide gas had entered the enclosed flare in excess of 1.01 lbs/hr on at least two occasions during a twenty-four (24) hour period. Adams Aff., irir 28 - 31; Carrigan Aff., ir 20, 2l(a); Notice, ir 1.
32. Landfill inspections by MassDEP investigators on August 17 and 18, 2008, revealed that New Ventures was not operating the pretreatment system to remove at least 95% of hydrogen sulfide from landfill gas before it reached the enclosed flare, but instead allowed landfill gas to enter the enclosed flare with only 63% and 38%, respectively, of hydrogen sulfide removed. Adams Aff., irir 28,33; Carrigan Aff, irir 21(a),24, 25; Notice, ir 3. In addition, New Ventures operated the pretreatment system to allow the concentration of hydrogen sulfide gas flowing into the enclosed flare on those occasions to exceed the performance standard of 1.01 lbs/hr twice during a twenty-four hour period. ¡d.
33. Review by MassDEP investigators of daily landfill gas collection system monitoring forms submitted by New Ventures, along with review of complaints about odors from the landfill received by MassDEP from residents in the vicinity of the Facility revealed that on July 14 and 17,2008, and August 7,8 and 11, and 13,2008, New Ventures failed to respond to residents' odor complaints or report them to MassDEP. Carrigan Aff., ir 19(a); Adams Aff., ir 55; Notice, ir 7.
34. Review by MassDEP investigators of New Ventures' submissions revealed that from at least July 28,2008, through the date of the Notice, New Ventures failed to provide MassDEP with the required daily landfill gas sampling data for the landfill gas control system, including the hydrogen sulfide gas data for the pretreatment system and enclosed flare necessary to demonstrate the system was in compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal performance standards for landfill gas flowing into the enclosed flare. Carrigan Aff., ir 1 9(b); Notice, ir 2.
35. Review by MassDEP investigators of New Ventures' submissions revealed that the Landfill Engineer failed to submit the required Weekly Status Reports to MassDEP from March 8,2008 through the date of the Notice. Carrigan Aff., ir 19(d); Notice, ir 12.
36. Landfill inspections by MassDEP investigators on July 17 and 29, 2008 and August 18, 2008 revealed that New Ventures failed to remove odiferous leachate released from the landfill that had migrated to the wetlands abutting the Facility. Adams Aff., irir 18 - 20; Notice, ir 4.
37. Landfill inspections by MassDEP investigators on July 17 and 29 and August 18, 2008, revealed that New Ventures had not been pumping at least four of the five Landfill leachate tanks and that all tanks were either at full or nearly full capacity. Adams Aff., irir 10 - 12; Carrigan Aff., ir 2l(g); Notice, ir 4.
38. Landfill inspections by MassDEP investigators on July 17 and 29,2008 and August 17 and 18, 2008, revealed that New Ventures failed to place and maintain tarps or tarp covered clay on the south slope of the Phase I Area, and the portions of the Landfill known as the "Phase IIA Area" and "Phase III Area." Adams Aff., irir 57 - 62; Carrigan Aff., ir 21(e); Notice, ir 5. In addition, New Ventures had failed to cover the clay-like soil on the portion of the Landfill known as the "Phase IA Area" with tarps on those dates. Adams Aff., ir 62.
39. Review by MassDEP investigators of New Ventures' submissions, along with Landfill inspections on July 17 and 29, 2008, and August 17 and 18, 2008, revealed that the New Ventures had ,failed to continuously collect the required meteorological data at the landfill and to properly maintain the meteorological station at the landfill from the time of a power outage on or
about June 27, 2008 and the date of the Notice. Adams Aff., irir 23,24,26,27; Carrigan Aff, ir 19(c); Notice, ir 8.
40. Landfill inspections on July 17 and 29, 2008, and August 17 and 18, 2008, revealed that the New Ventures had failed to repair the digital flow meter on the enclosed flare at the Landfill since the power outage on or about June 27, 2008. Adams Aff., irir 23 - 25; Carrigan Aff.; ir 19 (f).
41. Landfill inspections on June 3, 4 and 26, 2008, July 17 and 29, 2008, and August 18, 2008, revealed that New Ventures had failed to maintain the berm and temporary storm water controls at the Landfill. Included among these stormwater control violation were New Ventures'
failure to repair erosion gulles, failure to repair and maintain the northern storm water down chute on the western side of the perimeter berm, failure to mitigate the erosion of silt from the south slope of the Landfill off-site on to Crow Lane, and failure to maintain the hay bale and silt fences along the Landfill perimeter and abutting wetlands. Adams Aff., irir 36,38,39,40; Notice, ir 6.
Current Contempt
42. Since September 2008, New Ventures has failed to remedy nearly all of the violations cited in the August 26, 2008 Notice, as detailed in paragraphs 43 through 56, below.
43. Four separate inspections of the Landfill by MassDEP investigators on September 12 and 25, October 2, and November 3, 2008 revealed that New Ventures stil had not equipped the pretreatment system with the required third pretreatment vesseL. Adams Aff., ir 47. In addition, during inspections on October 2 and November 3, 2008, MassDEP investigators discovered,air leaking into the two treatment vessels on-Site, indicating that they were not being
maintained as air tight. Adams Aff., irir 33, 34.
44. Landfill inspections by MassDEP investigators on September 25, October 2, and November 3, 2008, revealed that New Ventures was not operating the pretreatment system to remove at least 95% of hydrogen sulfide from landfill gas before it reached the enclosed flare, but instead allowed landfill gas to enter the enclosed flare with only 87%, 86%, and 62%, respectively, of hydrogen sulfide removed. Adams Aff., irir 33 - 35. In addition, New Ventures was operating the pretreatment system on September 25 and October 2,2008 to allow the concentration of hydrogen sulfide gas to enter the enclosed flare at a rate in excess of 4.5 lbs/hr, exceeding the 1.01 lbs/hr performance standard on those occasions by more than 445%. Adams Aff., ir 35.
45. Review by MassDEP investigators of daily landfill gas collection system monitoring forms submitted by New Ventures, along with review of complaints about odors from the landfill received by MassDEP from residents living in the vicinity of the Landfill, revealed that New Ventures had continued to ignore and failed to respond to residents' odor complains or report them to MassDEP, including odor complaints made on September 3,5,11,12, and 16,21,25 and 28, and October 3, 4,13, 18, 19,21,23,2008. Carrigan Aff.,ir 19(a).
46. Review by MassDEP investigators of New Ventures' submissions revealed that New Ventures was stil not providing MassDEP with the required daily landfill gas sampling data for the landfill gas control system, including the hydrogen sulfide gas data for the pretreatment system and enclosed flare. Carrigan Aff., ir 1 9(b). New Ventures has failed to provide the landfill gas sampling data necessary to demonstrate that the system is in compliance with the maximum 1.01 lb/hr hydrogen sulfide concentration and minimum 95% hydrogen sulfide removal performance standards for landfill gas flowing into the enclosed flare from at least July 28,2008, through the date of this Complaint. ¡d.
47. Review by MassDEP investigators of New Ventures' submissions revealed that the Landfill Engineer was stil not submitting the required Weekly Status Reports to the MassDEP. Carrigan Aff., ir 19(d). New Ventures has failed to submit Weekly Status Reports for the Landfill from March 8, 2008 through the date of this Complaint. ¡d.
48. Landfill inspections on October 2,2008 revealed that New Ventures had failed to remove odiferous leachate from the temporary stormwater basin behind the Facility office trailer. Adams Aff., ir 16.
49. Inspections of the LandfiII by MassDEP investigators on September 25, October 2, and November 3, 2008 revealed that New Ventures had stil not pumped at least four of the five Landfill leachate tanks, all of which were either at full or nearly full capacity. Adams Aff., irir 10,
12,13.
50. Landfill inspections on September 12 and 25, October 2, and November 3,2008, revealed that foul smelling leachate had been released from overflowing leachate collection tanks and had migrated across landfill access roadways and into stormwater collection basins. Adams Contempt Aff., irir 12, 14 - 17.
51. During inspections of the Landfill on September 12 and 25, October 2, and November 3, 2008, New Ventures refused or failed to provide MassDEP with leachate pumping logs for the LandfiL. Adams Aff., irir 51, 52.
52. Landfill inspections on September 12 and 25, October 2, and November 3, 2008, revealed that New Ventures failed to place and maintain tarps or tarp covered clay on the south slope of the Phase I Area, the Phase IIA Area, or the Phase II Area. Adams Aff., irir 57-62. In addition, New Ventures had failed to cover the clay-like soil on the Phase IA Area with tarps on those dates. Adams Aff., ir 62.
53. Review by MassDEP investigators of New Ventures' submissions, along with Landfill inspections on September 12 and 25, October 2, and November 3,2008, revealed that New Ventures was stil not collecting the required meteorological data at the landfill or properly maintaining the meteorological station at the landfill from the time of a power outage on or about June 27, 2008. Adams Aff., irir 23,24,26,27; Carrigan Aff, ir 19(c).
54. Landfill inspections on September 12 and 25, October 2, and November 3, 2008, revealed that the New Ventures had stil not repaired the digital flow meter on the enclosed flare at the landfill since the power outage on or about June 27. Adams Aff., irir 23 - 25.
55. Landfill inspections on September 25, October 2, and November 3, 2008, revealed that New Ventures had failed to maintain the berm and temporary storm water controls at the landfiL. Adams Aff., irir 37 - 40. Included among these stormwater control violations were New Ventures' failure to repair erosion gulles, failure to repair and maintain the northern storm water down chute on the western side of the perimeter berm, failure to mitigate the erosion of silt from the south slope of the landfill off-site on to Crow Lane, and failure to maintain the hay bale and silt fences along the Landfill perimeter and abutting wetlands. ¡d.
56. Landfill inspections on October 2 and November 3, 2008, revealed that New Ventures has failed to maintain the hay bale and silt fences along the perimeter of the landfill and abutting wetlands. Adams Aff., ir 42.
COUNT I
Violation of the Order and Supplemental Order
57. The Commonwealth repeats and realleges each and every allegation contained in paragraphs 1 - 56.
58. By failing to equip the landfill gas control system with three pretreatment vessels, and by failing to ensure that one or more pretreatment vessels are maintained as airtight, New Ventures violated and continues to violate Paragraphs l(d), 11, 13, and Appendix A of the Order
in contempt of Court.
59. By failing to operate the pretreatment system to consistently remove at least 95% of the hydrogen sulfide from landfill gas before it flows into the enclosed flare, New Ventures violated and continues to violate Paragraphs l(d), 13, and Appendix A, Section D, of the Order in contempt of Court.
60. By failing to operate the pretreatment system to consistently prevent hydrogen sulfide concentrations over 1.01 lb/hr from flowing from the pretreatment system into the enclosed flare, New Ventures violated and continues to violate Paragraphs 1 (d), 13, and Appendix A, Section D, of the Order in contempt of Court
61. By failing to provide the MassDEP with daily landfill gas system sampling data, including data on the concentration of hydrogen sulfide gas entering the pretreatment system and enclosed flare necessary to demonstrate compliance with the required performance standards, New Ventures has violated and continues to violate Paragraphs l(d), 1(1), 13, and Appendix A,
Section I, of the Order in contempt of Court.
62. By failing to respond to and report to MassDEP odor complaints received from residents living in the vicinity of the Facility, New Ventures violated Paragraphs 1(1), 13, and Appendix A, Sections H and I, of the Order in contempt of Court.
63. By failing to staff the Facility twenty-four (24) hours per day, seven (7) days per week, New Ventures violated and continues to violate Paragraphs 1(1), 13, and Appendix A, Section H, of the Order in contempt of Court.
64. By failing to maintain leachate collection tanks at less than 75% of their volume capacity, New Ventures violated and continues to violate Paragraph 1 (v) of the Order and MassDEP's 2005 ACOP in contempt of Court.
65. By allowing leachate collection tanks to overflow and release foul smelling leachate into stormwater collection basins and the wetlands abutting the Landfill, New Ventures violated and continues to violate Paragraph 1 (v) of the Order and MassDEP's 2005 ACOP in contempt of Court.
66. By failing to maintain and provide to MassDEP the required leachate daily log reports containing the date, time, liquid level and volume of leachate pumped from each leachate tank, New Ventures violated and continues to violate Paragraphs l(v) and 13 of the Order and MassDEP's 2005 ACOP in contempt of Court.
67. By failing to place and maintain tarps or tarp covered clay on the south slope of the Phase I Area, the Phase IIA Area, and Phase III Area, and by failing to cover the clay-like soil on the Phase IA Area with tarps, New Ventures violated and continues to violate Paragraphs 1 (j) and 1 (v) of the Order and Paragraph 1 of the Supplemental Order in contempt of Court.
68. By failing to submit the required Engineer's Weekly Status Reports to MassDEP, New Ventures violated and continues to violate Paragraph 1 (d) and Appendix A, Section C, of the Order in Contempt of the Court.
69. By failing to continuously collect the required meteorological data at the Landfill, New Ventures violated and continues to violate Paragraphs 1 (d), 1 (1), and Appendix A, Section F, of the Order in contempt of Court.
70. By failing to repair the digital flow meter on the enclosed flare at the Landfill, New Ventures violated and continues to violate Paragraphs 10 and 13 of the Order in contempt of Court.
71. By failing to maintain the berm and temporary storm water controls at the landfill in compliance with 310 CMR 1 9.043(5)(b) and 310 CMR 1 9.130(19)(b), New Ventures violated and continues to violate Paragraph 13 of the Order in contempt of Court.
72. By failing to maintain the hay bale and silt fences along the Landfill perimeter and abutting wetlands as required by 310 CMR 19.043(5)(b), 310 CMR 19.130(19)(b), and 310 CMR 19.130(20), New Ventures violated and continues to violate Paragraph 13 of the Order in contempt of Court.
RELIEF SOUGHT
Wherefore, the Commonwealth respectfully requests that this Court:
A. Issue a Summons pursuant to Mass. R. Civ. P. 65.3(d) directing the parties to appear before the Court within ten (10) days for a hearing on the merits of this Complaint;
B. Find New Ventures in contempt of this Court's Order and Supplemental Order;
C. Order that New Ventures immediately comply with all provisions of this Court's Order and Supplemental Order;
D. Award the Commonwealth its costs and attorneys' fees incurred in prosecuting this Contempt action; and
E. Order and Grant such other relief as the Court deems just and proper.
Respectfully submitted,
etc.
Dated: November 12,2008
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Edited by - Tails on 02/13/2009 12:29:36 PM |
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Tails
Administrator
2682 Posts |
Posted - 02/13/2009 : 12:02:47 PM
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Plaintiff's complaint
1. Paragraph 1 is an introduction and does not require an admission or deniaL. To the extent that this introductory paragraph alleges violations by Defendant, New Ventures Associates, LLC ("Defendant" or "New Ventues") of the Preliminary Injunction (the "2006 Order"), Defendant hereby denies said allegations and calls upon Plaintiff to prove same.
2. Paragraph 2 identifies remedies sought by Plaintiff. Defendant denies that it is in violation of the injunctive Orders. Defendant denies the Commonwealth is entitled to attorneys' fees.
PARTIES
3. Defendant admits the allegations contained in Paragraph 3.
4. Defendant admits that the Attorney General is the chief legal officer and calls upon Plaintiff to prove that she can bring this action under M.G.L., c. 12, §§3 and lID.
5. Defendant states that MassDEP's statutory authority speaks for itself and that this paragraph does not require an admission or deniaL.
6. Defendant admits the statements regarding its corporate capacity. Defendant states that it purchased the unlined landfill in 2000 and has been in the process of attempting to close the landfill since 2003 and has been prevented from closure by the Commonwealth and the City of Newburort.
FACTS AND STATEMENT OF THE CONTEMPT
Procedural History
7. Defendant admits that the Commonwealth prepared a complaint against Defendant New Ventues alleging violations of law in connection with its closure of the Crow Lane Landfill (the "Landfill") in February 2006 that was served sometime later.
8. Defendant admits that the 2006 Order was entered into by agreement of Plaintiff and Defendant and amended by agreement. Defendant states that the 2006 Order speaks for itself and that the Commonwealth's characterizations ofthe Preliminar Injunction does not require an admission or deniaL.
9. Defendant admits that a Supplemental Order was entered in September 2007 that speaks
for itself.
10. Paragraph 10 describes the Order and does not require an admission or deniaL.
Relevant Requirements Of The Order And Supplemental Order
11. Defendant states that Paragraph 1 (d) and Appendix A of the 2006 Order speak for themselves regarding requirements for operating the Landfill gas pretreatment system at the Facility and do not require an admission or deniaL. Defendant admits that the objective of the Landfill gas pretreatment system is to treat hydrogen sulfide and other landfill gas emissions prior to discharge.
12. Defendant states that Paragraph I(d) and Appendix A, Section D of the 2006 Order speak for themselves as to the requirements for operating the pretreatment system and do not require an admission or deniaL. Defendant admits that performance standards are contained in said Appendix A regarding hydrogen sulfide removaL.
13. Defendant states that Paragraph 1 (d) and Appendix A of the 2006 Order speak for themselves regarding the operation of the pretreatment system and that this paragraph does not require an admission or deniaL. Defendant denies that the system can or must operate on a continuous basis as it also requires down time for maintenance and exigent circumstances.
14. Defendant states that Paragraph 1 (d) and Appendix A, Section 1 ofthe 2006 Order speak for themselves regarding the requirement for Defendant to submit data and information to the Deparment regarding hydrogen gas emissions and therefore does not require an admission or denial of same.
15. Defendant states that Paragraph I(d) and Appendix A, Section C of the 2006 Order speak for themselves regarding the requirement for a project engineer to observe and monitor certain activities periodically and make reports and therefore does not require an admission or denial of same.
16. Defendant states that Paragraph 11 of the 2006 Order speaks for itself regarding the number of pretreatment vessels on site. Defendant denies that there is a requirement that the pretreatment vessels remain in place and completely intact at the site on a continuous basis because it does not take into account maintenance or disposaL.
17. Defendant states that Paragraph 1 (1) and Appendix A, Section H of the Order speaks for
themselves regarding the requirement for Defendant to staff the Facility on a continuous basis and therefore this Paragraph does not require an admission or deniaL. Defendant also states that Paragraph 1 (1) and Appendix A speak for themselves regarding Defendant's requirement to respond to odor complaints from the neighborhood and therefore does not require an admission or deniaL.
18. Defendant states that Paragraph 1 (1) and Appendix A, Section F of the 2006 Order speak for themselves regarding the requirement for Defendant to operate a meteorological station at the Landfill and therefore this paragraph does not require an admission or deniaL.
19. Defendant states that Paragraph I(u) of the 2006 Order speaks for itself regarding management of leachate at the Facility and does not require an admission or deniaL.
20. Defendant states that Paragraph 1 (v) of the 2006 Order speaks for itself with regard to the
requirement to maintain the leachate control system and that no admission or denial is required. Defendant denies that the leachate control plans required New Ventures to maintain the leachate tans at 75% of their capacity and calls upon Plaintiffs to prove same.
21. Defendant states that Paragraphs IG) and 1 (v) and Appendix B of the 2006 Order speak for themselves with regard to the requirement to maintain tars over the C&D material and to maintain the one (1') foot of clay-like soil over the Phase IA area, and therefore do not require an admission or deniaL. Defendant denies that both tarps and one foot of cover are required on the Landfill Phase lA area.
22. Defendant states that Paragraph 13 of the Order speaks for itself and denies that the 2006
Order is applicable because according to the Department's decisions denying force majeure claims, the Landfill cannot be closed in accordance with the 2006 Injunction and is no longer operative. Defendant fuher states that the Department drafted a new agreement for closure completion to reflect that the 2006 Order is no longer operative.
23. Defendant admits that the DEP ordered New Ventures to shut down the placement of C&D material at the Landfill in June 2007 and that the shutdown is stil in effect. Defendant denies that it was or is in violation of the 2006 Order.
24. Defendant denies the allegations contained in Paragraph 24 based upon the above.
25. Defendant denies the allegations contained in Paragraph 25 based upon the above.
New Ventures' Recent Violations of the Order and Supplemental Order and the August 26,2008 Notice of Violations
26. Defendant admits that the Commonwealth and New Ventues negotiated an agreement that, if executed, would settle the underlying action as stated in its answer to Paragraph 22. Defendant states that the agreement has not been executed by either pary and therefore any characterizations of said proposed agreement are irrelevant. Defendant admits that it will not execute a new agreement that requires Defendant to close the Landfill in a specified time unless and until the City of Newburort allows the Landfill to be closed.
27. Defendant denies that the Landfill is creating a public health threat despite alleged odor complaints or of alleged violations.
28. Defendant admits that MassDEP sent a letter on August 26, 2008 that speaks for itself.
Defendant states that it responded to said letter and that there is no public health threat caused by the alleged violations. Defendant admits that when a new agreement is executed, there will be compliance requirements.
29. Defendant canot admit nor deny how many inspections were performed by MassDEP
personneL. Defendant states the Landfill gas pretreatment system is compliant unless it is down for maintenance purposes.
30. Defendant can neither admit nor deny the number oflandfill inspections performed by MassDEP personnel and calls upon Plaintiff to prove same. Defendant states that the enclosed flare is only shutdown for puroses of maintenance or exigent circumstances and is presently operating.
31. Defendant can neither admit nor deny the allegations contained in this paragraph and calls upon Plaintiff to prove same. Defendant denies that there is a public health threat associated with the alleged violations.
32. Defendant can neither admit nor deny the number of inspections performed by MassDEP
personnel referenced and calls upon Plaintiff to prove same. Defendant states that the Landfill gas pretreatment system has been operating to prevent any threats to public health or safety and denies that there are any public health threats associated with the alleged violations.
33. Defendant can neither admit nor deny the number of investigations performed by MassDEP regarding the odor complaints, denies that it does not respond to odor complaints and calls upon Plaintiff to prove the same.
34. Defendant denies the allegations contained in ths paragraph and calls upon Plaintiff to prove same. Defendant denies that there are any public health threats associated with the alleged violations.
35. Defendant states that it is not required to perform weekly status reports when the Landfill is not operating and since the Injunction is no longer in effect.
36. Defendant denies the allegations contained in Paragraph 36.
37. Defendant denies the allegations contained in Paragraph 37.
38. Defendant denies that it is required to maintain tarps on the property when it is covered with clay-like soil materials.
39. Defendant can neither admit nor deny that the inspections took place by any MassDEP
personnel on the dates included in said paragraph and calls upon Plaintiff to prove same.
Defendant states that the meteorological station at the Landfill has been maintained.
40. Defendant can neither admit nor deny the allegations contained in this paragraph that
Landfill inspections took place on the dates identified and calls upon Plaintiff to prove same. Defendant states that the digital flow meter which is par of the Landfill gas pretreatment system has been repaired and is operating. Defendant fuher denies that there are public health threats associated with the alleged violations and denies that the 2006 Order is stil in effect.
41. Defendant can neither admit nor deny that Landfill inspections took place on the dates
contained in this paragraph and calls upon Plaintiff to prove same. Defendant denies that it has failed to maintain the berm or temporary storm water controls.
Current Contempt
42. Defendant denies the allegations contained in Paragraph 42.
43. Defendant can neither admit nor deny that inspections took place by MassDEP personnel
on the dates included in this paragraph and calls upon Plaintiff to prove same. Defendant states that the pretreatment system is operating. Defendant denies that it is required by the regulations to maintain airtight treatment vessels. Defendant states that treatment vessels are not required at all C&D landfills.
44. Defendant can neither admit nor deny that Landfill inspections by MassDEP personnel took place on the dates identified in this paragraph and calls upon Plaintiff to prove same. Defendant states that the pretreatment system is operating correctly. Defendant states that there are no public health impacts from the alleged violations.
45. Defendant can neither admit nor deny a review by MassDEP personnel took place on the
dates included in this paragraph. Defendant denies that it has ignored or failed to respond to odor complaints.
46. Defendant denies the allegations contained in Paragraph 46 and denies that there are any
public health impacts from the treatment and discharge.
47. Defendant denies that it is required to submit weekly status reports when the Landfill has not accepted C&D materials for eighteen (18) months.
48. Defendant denies the allegations contained in Paragraph 48.
49. Defendant denies that it is required to pump the leachate tans when they are at 75% capacity and calls upon Plaintiff to prove same.
50. Defendant denies that foul smelling leachate has migrated across the Landfill and into stormwater collection basins and calls upon Plaintiff to prove same.
51. Defendant denies that it has violated the leachate pumping provision since the Preliminary Injunction is not in effect.
52. Defendant can neither admit nor deny that inspections took place on the dates contained in this paragraph and calls upon Plaintiff to prove same. Defendant denies that it is required to place tarps on the areas in question.
53. Defendant can neither admit nor deny that investigations by MassDEP personnel took place on the dates referenced in this paragraph and calls upon Plaintiff to prove same. Defendant denies that it is not collecting meteorological data at the LandfiL.
54. Defendant denies that the digital flow meter is not operating.
55. Defendant denies the allegations contained in Paragraph 55.
56. Defendant denies the allegations contained in Paragraph 56.
COUNT I
Violation of the Order and Supplemental Order
57. Paragraph 57 is a summary paragraph that does not require an admission or deniaL. Defendant hereby incorporates by reference its responses, answers and statements contained in Paragraphs 1-56, above.
58. Defendant denies the allegations contained in Paragraph 58.
59. Defendant denies the allegations contained in Paragraph 59.
60. Defendant denies the allegations contained in Paragraph 60.
61. Defendant denies the allegations contained in Paragraph 61.
62. Defendant denies the allegations contained in Paragraph 62.
63. Defendant denies the allegations contained in Paragraph 63.
64. Defendant denies the allegations contained in Paragraph 64.
65. Defendant denies the allegations contained in Paragraph 65.
66. Defendant denies the allegations contained in Paragraph 66.
67. Defendant denies the allegations contained in Paragraph 67.
68. Defendant denies the allegations contained in Paragraph 68.
69. Defendant denies the allegations contained in Paragraph 69.
70. Defendant denies the allegations contained in Paragraph 70.
71. Defendant denies the allegations contained in Paragraph 71.
72. Defendant denies the allegations contained in Paragraph 72.
Relief Sought
73. Defendant requests that the Court deny all requests for relief sought by the Plaintiff.
AFFIRMATIVE DEFENSES
First Affrmative Defense
Plaintiff fails to state a cause of action for which relief can be granted.
Second Affirmative Defense
The Preliminary Injunction cited by the Plaintiff expired at the time when the Plaintiff denied Defendant's request for the application of its force majeure clause in 2007 in order to close the Facility under the 2006 Preliminary Injunction. Once the force majeure was denied by the Department and the time periods for closure passed without completion, the Injunction ceased to be legally applicable.
Third Affirmative Defense
In the absence of the Preliminary Injunction, New Ventues is not under any affirmative obligation to perform the tasks identified throughout the Complaint. In the absence of a legal
agreement or otherwse applicable Preliminary Injunction, the violations cited of the Preliminary
Injunction are without foundation.
Fourth Affirmative Defense
Defendant operates the Landfill gas treatment system in accordance with appropriate standards.
Fifth Affirmative Defense
The 2006 Order was based upon a closure completion by the middle of 2007 with loam and seeding completed prior to the end of calendar year 2007. Plaintiff s actions have prevented
Defendant from complying with the 2006 Order, including its demand for additional analysis of
the berm.
Sixth Affrmative Defense
Plaintiffs actions have resulted in Defendant's alleged noncompliance.
Seventh Affirmative Defense
There is no demonstrated clear violation of a valid 2006 Order.
Eighth Affrmative Defense
As a matter of equity, Plaintiffs actions have not promoted closure and have increased Defendant's costs without allowing revenue producing material at the LandfilL.
PRAYER FOR RELIEF
The Plaintiffs complaint should be denied because its actions in refusing to allow the closure of the Landfill has frstrated the purose and intention of the Injunction and prevents Defendant from performing the functions asserted to in the Complaint.
Respectfully Submitted
New Ventures Associates, LLC
By Its Attorney,
Richard A. Nylen, Jr., Esq.
(BBO# 375280)
Lynch, DeSimone & Nylen, LLP
12 Post Office Square, Suite 600
Boston, MA 02109
(617) 348-4500
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tetris
Moderator
2040 Posts |
Posted - 02/18/2009 : 9:09:17 PM
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From the Newburyport News:
Landfill deal may bypass City Council
Mayor's order would put contract into effect without board's vote
By Katie Farrell
Staff writer
NEWBURYPORT — A plan by Mayor John Moak to file an administrative order that would bypass a City Council vote is making some councilors uneasy about being cut out of the process.
Moak said last week he intends to meet with the state Department of Environmental Protection and the state attorney general's office before moving forward with filing the order. The mayor, who did not return a phone call yesterday, had intended to meet with the state officials early this week.
The mayor would file an administrative order with the Board of Health, informing New Ventures, the owner and operator of the landfill, to cap it according to the regulations set by DEP. The order would supersede the conditions set by the Host Community Agreement, the contract currently in effect between the city and New Ventures.
The council, which rejected a settlement agreement presented by Moak in June in a unanimous vote, would not see the order or have to take any action on the document. The mayor has met with all the councilors individually to explain his stance and go over what the order would do, but that hasn't been enough to sway all of them in his favor.
At-large Councilor Tom Jones, who lives close to Crow Lane, said the mayor informed councilors the administrative order will allow New Ventures to bring in more fill, which also means additional truck traffic. Because the order will supersede the city's Host Community Agreement, Jones is wary that the council would have no authority over the new order.
"My read on this is we have a contract that I believe is binding, but in order (for the City Council) to enforce the (original) contract, we would have to be able to litigate. In other words, the City Council would have to sue the mayor," Jones said.
While Jones said he disagrees with Moak's position, bringing the issue to court would be costly and would mean the taxpayers would pay for two lawyers to fight over which document would prevail — the administrative order or the Host Community Agreement.
"I think it brings up some very interesting arguments about the authority and the responsibilities of the various entities of government," Jones said.
At-large Councilor Donna Holaday said she would like to see all parties reach a consensus before moving forward.
"I think this is an incredibly difficult and contentious process," she said. "I think, as we start to split the parties and interests, that it just doesn't serve our community well."
Moving ahead with an administrative order, while Moak's right as mayor, would definitely cut the City Council out of the process, Holaday said.
"I don't think there's any question about it; I would just hope that would not be the direction this would go," she said.
At-large Councilor Barry Connell agreed it would be premature for the city to take action now but should wait for a court ruling in April.
"I just don't believe that they're a trustworthy party to enter into any kind of negotiated settlement or agreement," Connell said. "The mayor has been feeling out councilors to see if there is any support for a negotiated settlement ... I don't think there's any stomach for that."
City Council President James Shanley said yesterday he understands the mayor's motivation for filing an administrative order but has "mixed emotions" about not involving the council.
"I think that the overall goal for everybody should be to get it capped as quickly as possible," Shanley said. "It's a very, very unfortunate situation. I don't think there will be any happy win for anybody. The important thing is to get it capped."
Ward 1 Councilor Larry McCavitt called the idea of the administrative order "a creative approach" but said he can't say if he supports it until he sees the actual proposal. McCavitt said he doesn't have a problem with the mayor taking the lead and not coming to the council for a vote.
"This thing has been going on for long enough," McCavitt said, adding if it takes an administrative order to end it, "so be it."
"I don't have a problem with that," he said. "It looks like it's an extremely difficult route to the end. If the mayor can come up with a practical and effective way of doing it, I don't know why I would object."
The mayor remains concerned about issues surrounding the landfill's designation as a 21E site, or a hazardous material site. Because the city has dumped waste there in the past, it is responsible under state law for contributing costs toward its cleanup.
A settlement agreement drafted by the mayor late last year would increase the volume of fill arriving at the site but would release the city from possible contamination lawsuits. The mayor took back the agreement before the council could vote on it, knowing he didn't have the support of the council.
"My concern about 21E, win lose or draw, it's costly," Moak said last week.
The actions the city is considering will keep the city in a strong position with monitoring the landfill when it's operating.
With the landfill once again heading to court in April, as the attorney general's office seeks a contempt order against New Ventures, Holaday said she would prefer to wait to see what happens in the courts before moving ahead.
Abutters who are dealing with the smells emanating from the landfill are clear on where they stand.
David Chatfield, an abutter, said yesterday bringing in more materials with hydrogen sulfide is the "wrong way to go."
"I do believe that the state should be taking over the landfill and closing it in line with the published guidelines," Chatfield said. "This is a great neighborhood. I don't see why we should have any more of this material brought in on the site than is agreed to under the HCA. It makes no sense to me. This is a great neighborhood."
While neighbors of the landfill have raised questions about the role New Ventures' attorney has played in the idea of an administrative order, the mayor last week denied any involvement from New Ventures or their legal counsel.
"That is absolutely untrue," Moak said. "I am actually getting kind of tired of hearing that."
City officials began exploring the idea of an administrative order last summer, Moak said.
"This came totally from my staff," he said. |
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Tails
Administrator
2682 Posts |
Posted - 02/18/2009 : 10:03:57 PM
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| Makes me ill, just like more than half on the city council. This owner of Wood Waste and New Ventures is certainly nothing short of the devils godfather. How any human being can reek such havoc all over the state, is beyond me. It screams of corruption and wont stop until we abolish campaign financing. Look at his campaign funding history and we all know who this owner backed financially and the way members are on the city council, they look like they have their hands in the cookie jar too. |
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Tails
Administrator
2682 Posts |
Posted - 02/23/2009 : 10:44:12 PM
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It appears that Newburyport is working on the FY10 Budget. This paragraph I found interesting. Did Mayor DeMaria mention that the Newburyport Mayor met with the DEP today? I cant imagine they were in separate meetings with the DEP.
"After a case of the flu forced him to cancel a scheduled meeting with the Department of Environmental Protection and the state's Attorney General's Office last week, Mayor John Moak will meet with the two agencies this afternoon.
Moak said he will gather the information and won't rush to make a decision on how to proceed with the Crow Lane landfill or if he should file an administrative order through the Board of Health."
It does not sound like the landfill will open anytime soon. At this point, Newburyport is probably better off to wait until April for their trial. Who knows what the judge will order. The judge might make the state take over the landfill. That would be good news for Newburyport. The state was on the road to take over the landfill at one point.
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tetris
Moderator
2040 Posts |
Posted - 02/23/2009 : 11:10:00 PM
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Mayor DeMaria didn't say tonight that both he and Mayor Moak met jointly with the DEP today but he did say that a joint meeting was in the cards for the near future.
A couple of things that he did say tonight that probably will be of interest to our friends from Newburyport though.
- He admitted that he probably should not have shared any information with us that he had received privately from Mayor Moak.
- He stated that the DEP is not in favor (dead against, in his words) of opening the landfill until the long list of DEP issues at the landfill are corrected.
Take it for what you will. |
Edited by - tetris on 02/23/2009 11:46:40 PM |
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turk182
Member
88 Posts |
Posted - 02/24/2009 : 08:46:23 AM
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MR. Mayor when is this going to end? People are getting sick, has anyone died from being exposed to these materials? Here is your chance to be a hero or a clown, it's your choice. This is an election year.
The beat goes on, the beat goes on
Drums keep pounding a rhythm to the brain
La de da de de, la de da de da
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massdee
Moderator
5299 Posts |
Posted - 02/24/2009 : 09:25:49 AM
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You must be logged in to see this link.
Monday, February 23, 2009
But was it filmed for YouTube?
I got this in earlier, from Everett, I assume:
Gillian Swart (although you were called Gillian Stewart) was a topic at the Everett Board of Alderman meeting. The city solicitor was asked to explain herself over Jack Morris's comments about not telling Everett to enter into a consent agreement and part of you article from the Current was read.
She NOW claims that Jack Morris did in fact say "cease and desist" however, when he heard all the evidence (and conveniently when she walked into the meeting, at the end of it) that he THEN said "consent agreement" Not one word was believable.
The Everett Mayor also claimed because he informed the Everett Board of Alderman that the landfill will be opened in 7-10 days, per something being worked out between him and Mayor Moak, that THAT was the reason Moak backed down. Because Newburyport's city council did not know FIRST and he should not have said anything. Not one word was believable there either. More to come but it looks as if Everett is starting a cease & desist on Wood Waste tomorrow, with the building department. His building department violation is being delivered tomorrow and Oh yea....the building department CLAIMS they did not know they can issue a violation on Wood Waste. They are starting to sound like our legal team.
Oh, you say "cease and desist" and I say "consent order." Let's call the whole thing off!
"Deb" |
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Tails
Administrator
2682 Posts |
Posted - 02/24/2009 : 09:57:59 AM
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It's funny that when Colleen's original public comments were made that "Jack Morris" told us to go that way, she neglected to mention the fact that he indeed did say "cease & desist"
He denies the "consent agreement order" advice. Too many lies have been told by this administration and I believe him. What could he possibly accomplish out of lying? We know what the administration accomplishes out of lying, and to have a city solicitor blatantly lie, I have a HUGE ethical issue with. |
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massdee
Moderator
5299 Posts |
Posted - 02/27/2009 : 08:18:30 AM
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Dirty dealings
By Gillian Swart
Fri Feb 27, 2009, 07:21 AM EST
Newburyport -
"We walked out of there, and I think we were pretty much all dumbfounded."
That was how Ward 5 City Councilor Brian Derrivan summed up this week's two-hour meeting between city and state officials on the future of the Crow Lane landfill. Derrivan feels the state is sick and tired of the city and the landfill owner, New Ventures, fighting over capping the former dump. They want the landfill - and the case - closed.
Everything Mayor John Moak was looking for in answers, he got zero, said Derrivan, who could not go into specifics. He chose to discuss his impression of the discussion with Matthew Ireland from the Attorney General's Office and Richard Chalpin from the state Department of Environmental Protection.
Back in 2006, Ireland and Chalpin were captured on video promising that the state would take control of the landfill if the owner failed to live up to his obligations in maintaining the site. But this week, neither Ireland nor Chalpin had any good news for the city.
Residents who live in the Crow Lane neighborhood were encouraged last fall, when the Attorney General's office filed a contempt complaint against New Ventures for failing to maintain the landfill and failing to control the miserable odor of rotting construction debris that the company's trucks dumped at the site. For years, the neighborhood has been plagued with health problems, such as difficulty breathing, irritated eyes and nausea. A gas extraction system to help control odors was installed at the site, but according to reports from neighbors, it frequently malfunctions or is not operating.
Despite the gravity of those problems, Derrivan is not optimistic about the outcome of the contempt hearing scheduled for April 23.
"I think it's safe to say that we don't have a partner in either DEP or the AG in this," Derrivan said. "Absolutely nothing was offered, except litigation."
The state hasn't had much success with previous attempts to intervene in the landfill dispute.
In a singularly futile move to get New Ventures to abide by its regulations, the state DEP in 2007 went into the landfill and designated it a hazardous waste site under Massachusetts General Law 21 E.
In response, New Ventures demanded that the city pay 90 percent of the cleanup, because of wastewater sludge that the city may or may not have dumped at the landfill years ago.
Moak acknowledged he has been considering issuing an administrative consent order through the Board of Health that would order New Ventures to finish capping the landfill, according to DEP regulations. Although that would permit increased amounts of construction and demolition waste at the landfill, Moak said the city would also require a release from the demands of a costly cleanup under 21E.
Settle for what?
That option has created some concern, because it would bypass the City Council, which has already rejected a settlement agreement with New Ventures. It would also sideline the Host Community Agreement, the original contract between the city and New Ventures that spells out how much waste can be brought to Crow lane.
Derrivan frankly isn't sure that's even an issue now.
"I can't see how he [mayor] would ever think of doing [an administrative consent order] at this point ... I think we have to seriously look at suing the DEP," Derrivan said.
He is also concerned that problems in the City of Everett are playing into Crow Lane, and he is worried that the state is trying to solve the situations in both cities in one fell swoop. Construction and demolition debris has been building up at the Wood Waste Boston recycling facility in Everett since a cease and desist order halted trucking of the materials north to Newburyport. William Thibeault owns both New Ventures and Wood Waste.
Derrivan feels many in the city see the landfill as a neighborhood issue rather than a problem that affects the entire city. "Port residents who don't think about the landfill, because it does not affect them personally, better wake up pretty soon to the fact that we have a potential environmental disaster down there, based on who's done what and their track record," he said.
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"Deb" |
Edited by - massdee on 02/27/2009 08:21:48 AM |
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tetris
Moderator
2040 Posts |
Posted - 03/13/2009 : 11:48:53 AM
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From today's Newburyport News:
Critics call action 'shameful,' 'mistake'
City hopes deal will close landfill by fall
By Katie Farrell
Staff writer
NEWBURYPORT — While city leaders are hopeful the order that Health Agent Jack Morris will issue to New Ventures means a light at the end of the tunnel for the years-long problems at the Crow Lane landfill, neighbors aren't so sure.
Mayor John Moak notified city councilors earlier this week that he'll issue an administrative order and has instructed Morris to issue one via the Health Department. By issuing an administrative order, the mayor is able to take an action without getting approval from the City Council.
The order would instruct New Ventures to cap the landfill according to the regulations set by the state Department of Environmental Protection. New Ventures would have to maintain a site that meets the city's "noisome trade agreement" and the regulations of a previous injunction meant to minimize smells and nuisances. New Ventures would also have to provide funding for monitoring the site and would give up its right to sue the city.
For years, neighbors have suffered from noxious, rotten-egg smells coming from the building debris that New Ventures is using to build a massive mound over the landfill. The residents of about 150 homes plus apartments are often affected by the smell, but it sometimes penetrates farther into nearby neighborhoods.
Ward 5 Councilor Brian Derrivan, who represents the Low Street neighborhood of the city where the landfill is, said he was disappointed by the mayor's decision, as are some of the neighbors he spoke with.
"Unfortunately, it's not the direction we were hoping," Derrivan said. "The mayor's made his decision. Really now, it's all dependent on New Ventures, the attorney general and the DEP to get their agreement finished for New Ventures to start bringing material back into the landfill. We're going to have to be vigilant in everything we do now from here on in. The problem is, no one has much confidence in the DEP at this point."
At-large Councilor Barry Connell also disagreed with Moak's move, saying New Ventures isn't a "credible entity" to enter into any sort of agreement with.
"I'm really disappointed in this," he said. "I think it's a mistake."
The company has repeatedly demonstrated disregard for the city and violated terms of agreements in place, meaning it can't be trusted, Connell said.
"They have thumbed their nose at this community and actively taken actions that were intended to offend us: the Jolly Roger flag, for example," Connell said, referring to the pirate flag that New ventures flew for a while over the landfill. "That's just an "in your face" act. I hope that the AG and that the Department of Environmental Protection shut them down, clean up the mess that they're responsible for and send these guys to jail. However, I don't think they're (going to)."
The mayor firmly believes he is acting in the best interest of the city, Connell said.
"I hope that he's right and I'm wrong," he said.
Ron Klodenski, who lives on one of the most affected streets, Wildwood Drive, said he was expecting the mayor to choose the order.
"I've been expecting it since last summer when he presented that ridiculous agreement to the City Council and said it was a good agreement. It's not really a surprise. Even though I knew it was coming, it's still quite disappointing."
Klodenski called it "shameful that the mayor is crawling to New Ventures and pleading with them to give him an agreement."
Moak declined to address Klodenski's comments, saying responding "to those kind of statements" doesn't help.
Klodenski also questioned why Moak would move ahead with an administrative order if the state weren't supportive.
"It appears his mind was made up before he went in there," he said. "I think he was going through the motions of looking like he was considering alternatives seriously, but he's been on this path."
Klodenski said neighbors remain concerned about what will happen as New Ventures owner William Thibeault brings fill debris up from his Wood Waste facility in Everett.
"After that's here, what's to stop New Ventures from doing the same, digging in their heels and saying they're not finishing?" he said. "What's an agreement ever meant in the past? We'll be back in the same boat with 100,000 cubic yards more material in the city."
Order to be drafted
Morris said yesterday he will begin drafting the order with the city's attorney.
Asked if he believes this measure could finally bring closure to the landfill that has been a source of problems since 2004, Morris was cautiously optimistic.
"I'm hoping," he said. "Who knows? It's a wild card with them. The goal is to get this thing done and get everybody out of each other's hair. I'm hoping we can get this done by fall."
Moak mulled the move for weeks, calling it an "emotionally difficult" decision to make, being fully aware of the health problems and nuisances the neighbors have dealt with for five years. The move will save the city from having to go through costly litigation it can't afford and will expedite the capping, he said.
"My job is to try to get the situation resolved for the neighbors and the whole community," the mayor said.
Under state orders, the landfill is being capped with an enormous pile of construction debris, but the rotten egg-like smell has caused health problems for neighbors. New Ventures has been cited numerous times for breaking the capping agreement it signed with the city more than five years ago and is involved in litigation with the state's Department of Environmental Protection and the state attorney general's office.
While city councilors have no control over the administrative order and take no action on it, councilors said this week they weren't surprised by the mayor's decision to move forward on it. Moak met with each of the councilors individually, sharing his reasons for why he contemplated the move.
The council rejected a settlement agreement, presented to them by Moak, last summer and were poised to reject another version in the fall when Moak pulled it back.
"It's going to be up to the mayor's office and the Health Department to really keep a very tight control on everything," City Council President James Shanley said. |
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tetris
Moderator
2040 Posts |
Posted - 03/25/2009 : 12:38:37 PM
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Mayor signs contentious landfill deal
City officials hope capping will be complete, smells end by fall
By Katie Farrell
Staff writer
NEWBURYPORT — Mayor John Moak signed an agreement Monday with New Ventures, the owner of the Crow Lane landfill, that says the company will not sue the city under state 21E contamination regulations in exchange for capping the landfill.
Signing the agreement paves the way for Health Director Jack Morris to file an administrative order that will instruct New Ventures to cap the landfill according to the terms set by the Department of Environmental Protection.
Morris could not be reached for comment yesterday.
The four-page document comes after weeks of deliberation by Moak on how to move toward a resolution for the landfill. City officials hope that by filing the order, the landfill will be capped by the fall, ending years of health problems and a lingering stench for the more than 120 homes in the neighborhood. Work has been halted for months, as the city, New Ventures and the state have attempted to settle legal disputes.
Moak's decision has drawn heavy criticism from neighbors, who want the city to fight New Ventures in court, and city councilors, who argue New Ventures has broken agreements in the past and can't be trusted. Moak said the city can't afford the legal bills that a court battle would bring and argued that state officials think the city will likely lose in court anyway.
Moak said Morris would not file the order until the "covenant not to sue" agreement was resolved, meaning the capping could start at any time.
"It puts the city in a strong position," Moak said of the document. "There is strong language in there. We've come out pretty well in this."
Under the agreement, both the city and New Ventures will suspend all litigation over the landfill. The city agrees not to "commence any action against New Ventures or suspend, inhibit or otherwise prevent the closure of the landfill" as long as the company is in compliance with the order.
If the city's Board of Health finds an "imminent threat" to public health or safety has occurred, it will notify New Ventures in writing, and the two sides will confer in good faith within three days. If the dispute cannot be resolved, the city can bring action against New Ventures.
If New Ventures is sued by a third party under 21E, however, the city could be brought into the lawsuit by New Ventures, the mayor said yesterday,
Once the landfill is closed, New Ventures will provide the city with a covenant not to sue, agreeing not to continue any pending litigation or start any further lawsuits over the landfill.
Under the state's 21E law, the landfill is classified as a hazardous material site. Because the city has dumped waste there in the past, it is responsible under state law for contributing costs toward its cleanup and could be open to possible contamination lawsuits.
New Ventures agrees to comply with previous measures meant to minimize smells and nuisances. It will also pay the city for a monitor to supervise the capping.
William Thibeault, president of New Ventures, said yesterday he is pleased to be moving forward with closing the landfill.
"I just want to put this behind me and be done with it," he said. "It's in the best interest of everybody to close and cap the landfill."
Thibeault said his attorneys are finalizing the paperwork but that he hopes to begin the capping "sooner rather than later."
"In the near future," he said.
State Rep. Michael Costello, D-Newburyport, and Sen. Steven Baddour, D-Methuen, praised Moak's move.
"I applaud him for making a decision," Costello said. "For too long, there's been indecision, and nothing's happened. We need to cap it. I think he's made a tough decision, but probably a decision that I would have made.
"In a nutshell, I think the mayor is between a rock and a hard place. Everyone who tries to help him on this issue is stuck with problems that were created by past administrations and are dealing with an elusive and a very tough character in New Ventures."
The landfill off Low Street has been a source of problems for five years. Under state orders, the landfill is being capped with an enormous pile of construction debris, but the rotten egg-like smell has caused health problems for neighbors. New Ventures has been cited numerous times for breaking the capping agreement it signed with the city more than five years ago.
Capping ceased while the city and New Ventures wrangled in court and hashed out a new agreement. |
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tetris
Moderator
2040 Posts |
Posted - 03/25/2009 : 1:01:25 PM
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From Gillian Swart's blog (You must be logged in to see this link.), a couple of posts and links to the pages of the Administratitive order or covenant, as they are now calling it.
Well he did it
According to this story in the Daily News, Mayor John Moak has entered into an agreement with New Ventures and has instructed Jack Morris to issue an administrative order.
ha ha ha ... the mayor left for vacation today. He told me that yesterday, at the turbine ribbon cutting. He did not, however, mention the landfill ...
Think the timing is a coincidence?
An action speaks louder than words ...
Take a deep breath
Don't expect trucks from Everett to come rolling in just yet.
Although Jack Morris has signed the administrative order (he just told me), New Ventures still has to go through some (unspecified) stuff before debris from Everett hits Crow Lane.
I hate to even bring this up - but what if the AG drops the contempt complaint now?
And here's the agreement ... or covenant
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You must be logged in to see this link.
You must be logged in to see this link.
You must be logged in to see this link. |
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Tails
Administrator
2682 Posts |
Posted - 03/25/2009 : 1:39:59 PM
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This is not anything to be proud of. It's weak, and Thibeault will just keep ringing in the money. Since he's only removing 1 truck per week, his intake should have been reduced but......heaven forbid, NO.....We cant do that to Billy, HE PLANTED TREES!
What is all this telling people, it’s okay to break the law if you’re in good with the mayor? I’m sure he will get some big campaign money now if anyone decides to run against him.
All the hard work the residents, city council in both cities did to finally get the state involved, and the states case is probably for not now too. Nice timing!
It's actually a shame that the Attorney General's Office asked both cities not to enter into an agreement until after the court date, and they did it anyway.
The state will never help again, and Bill Thibeault knows it. We just lost any leverage we had with this company.
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tetris
Moderator
2040 Posts |
Posted - 03/26/2009 : 11:12:46 AM
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From today's Newburyport News:
Councilor wants counsel on landfill
O'Connor Ives says board should hire own lawyer to look at legality of order
By Katie Farrell
Staff writer
NEWBURYPORT — As Health Director Jack Morris sent an administrative order to the owner and operator of the Crow Lane landfill, City Councilor Kathleen O'Connor Ives filed a measure for Monday's City Council meeting asking her fellow councilors to agree to hire their own lawyer to review the legality of the move.
O'Connor Ives, an at-large councilor, said yesterday that by hiring its own attorney, separate from the city's law firm, Kopelman and Paige, the City Council would have a better understanding of its rights in the process.
Mayor John Moak notified city councilors a few weeks ago that he was going to have Morris send the administrative order to New Ventures to cap the Crow Lane landfill. As it is an administrative order, the City Council has no power over the decision, and several councilors have criticized the mayor's move, feeling they should have been involved.
"We want to determine our role as the City Council, what our options are, in terms of the administrative order," O'Connor Ives said.
If the City Council accepts the resolution Monday, Moak would need to agree to fund the expense of the council hiring a lawyer. The council cannot enter into a contract on its own because it is a legislative body.
City Council President James Shanley said yesterday if the council does choose to hire an attorney, it's likely an ad-hoc committee would be formed to find the legal counsel and to oversee the process.
The funding would come from the city's legal budget, Shanley said.
"This is uncharted water for us," he said. "So we're going to have to feel our way through it."
The council's role is currently "unresolved," O'Connor Ives said, but by hiring legal counsel, they would have a firm grasp of the issue. O'Connor Ives is a lawyer, but said she is acting as a city councilor in this case.
Morris sent the administrative order yesterday to New Ventures, directing the company to "immediately undertake closure of the landfill" according to Department of Environmental Protection Regulations. New Ventures is owned by William Thibeault.
While closing the landfill means New Ventures will bring in additional construction debris to fill the site, Morris said that material will be treated and aerated with a chemical at Thibeault's other facility, Wood Waste, in Everett.
Morris said Thibeault is still in negotiations with the state over the cease and desist order that was issued by DEP. Once that is resolved, likely in the coming days, the capping can begin.
While the treatment won't get rid of all odors, the smells shouldn't be anywhere near as bad as the city has seen in the past, Morris said.
The target date for completing the capping is September, Morris said.
"Hopefully, we'll all be done with them very soon," he said. |
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Tails
Administrator
2682 Posts |
Posted - 03/26/2009 : 12:06:15 PM
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Mayor Moak instructed the health department to issue the order, then took off on vacation.
Interesting........... |
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New Ventures/Crow lane landfill
