HomeMy WebLinkAbout1996-12-12 Board of Health Minutes BOARD OF HEALTH
MINUTES- SPECIAL MEETING
DECEMBER 12, 1996
Mr. Osgood called the meeting to order at 7:16 p.m.
MEMBERS PRESENT:
Gayton Osgood, Chairman, Francis P. MacMillan, M.D., Member, John S. Rizza, D.M.D.,
Member, Susan Ford, Health Inspector, and Sandra Starr, Health Administrator.
Mr. Osgood mentioned that he is going to take the agenda items out of order.
DISCUSSION- SITE ASSIGNMENT:
Attorney Kenneth Kimmell was present representing the Town of North Andover and
stated that he was there on behalf of the Board of Selectmen to discuss the Wheelabrator
Facility on Holt Road.
Attorney Kimmell briefly summarized a memorandum sent to Attorney Stephen M.
Richmond who is representing Wheelabrator Facility and who was present.
Attorney Kimmell stated that he had reviewed the applicable files maintained by the Board
of Health, the Board of Selectmen, and the Department of Environmental Protection and
during this review, he learned that Wheelabrator has not obtained a site assignment from
the Board of Health. Attorney Kimmell was asked by the Board of Selectmen to apprise
this Board of Health of this fact and to request that the Board of Health vote to require
Wheelabrator to apply for a site assignment from the Board of Health.
Attorney Kimmell stated that he is not clear as to why the local Board of Health did not
act to issue a site assignment and he has not been able to find any documents to explain
the reason for that. Attorney Kimmell stated that he believes the reason may have been
the perception that because the commonwealth owns the land upon which the facility was
built that is up to the state to issue the site assignment as opposed to the Board of Health.
Attorney Kimmell stated that he is just speculating because there is nothing that states this,
but he believes that may have been the rationale. Attorney Kimmell stated that from his
point of view, having researched the law governing site assignments and the particular
facts for this facility, it is his conclusion that in fact a site assignment was required by the
local Board of Health before the facility was built and then an appropriate way to deal
with that is to have the Board of Health to vote to require Wheelabrator to apply for a site
assignment now and to proceed with a process that should have been done many years
ago.
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Attorney Kimmell went on to explain how he got to that conclusion. He stated that the
first thing that he did was to look at the statute as it existed in the mid 1980's. The statute
has since been amended and what the statute stated then was.....
"No place in any city or town shall be established or maintained or operated by any
person, including any political subdivision or agency of the commonwealth, as a site for a
(solid waste incineration) facility, unless such place has either been assigned by the Board
of Health...or, in the case of an agency of the commonwealth, has been assigned by the
department (DEQE)..."
Attorney Kimmell stated that as he interprets the statute; on one hand local facilities, i.e.
municipal facilities or a private facility and those type of facilities get site assignments from
local boards of health versus state facilities which get site assignments from the State. The
key language in the statute is"establishing, maintaining or operating a facility". That is
the crucial determination - if the Commonwealth is establishing, maintaining, or operating
a facility they go to DEP, everyone else goes to the local Board of Health stated Attorney
Kimmell.
Attorney Kimmell stated that it appears very clear that the Commonwealth owns the land
upon which the facility has been built and it leases the land to MRI and MRI pays the
Commonwealth of Massachusetts rent. Attorney Kimmell stated that the lease makes it
crystal clear that NMI owns this facility, operates it, earns a profit from it, is under an
obligation to apply for permits and obtain whatever permits it needs, etc., etc. Attorney
Kimmell stated that the Commonwealth's only interest in this facility is as a landlord - it
owns some land and leases the land. Attorney Kimmell stated that there are also a number
of other documents back in the 80's that were issued in conjunction with the bonds that
were developed with this facility that clearly state that MRI has the title to this facility and
is the sole operator and owner.
What we have here is a private facility which is being operated by a private entity. In
looking at this statute it does not appear that the site assignment should be issued by the
state, rather it should be issued by the local Board of Health.
Attorney Kimmelll stated that in addition to the statute, there is quite a bit of case law,
judicial opinions to deal with the question- when does the commonwealth have to obtain
permission from the local boards to do something. Attorney Kimmell stated that the basic
rule is that when the Commonwealth builds or develops a project it is deemed to be
performing a governmental function and is exempt from local regulation.
Attorney Kimmell stated that the immunity from local regulations does not extend to
situations where the Commonwealth owns some land and a private party is the one that
owns and operates the facility for a profit - and that principal is fairly well established in
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Minutes: December 12, 1996
case law and reinforces what the statute tells us which is that this private facility needed to
get a site assignment ordered from the Board of Health, not DEP, to comply with its
obligations.
Attorney Kimmell stated that as everyone recognizes - quite a long time has passed and if
all things were done properly it would have been preferable that the site assignment had
been done before the facility was constructed but we are in a situation where no site
assignment has been issued by the local Board of Health. Attorney Kimmell stated that
the Selectmen believe it is in the best interests of the town to correct the error and to vote
for the site assignment process in order to better define the relationship between the town
and the facility in order for the town to be able to properly follow its duty of protecting
the public health and safety of the residents.
Attorney Kimmell stated that recently he was trying to obtain some documents from
Wheelabrator and unfortunately there has been a standstill - he stated that the bottom line
is that he has been requesting on behalf of the town public information in order to get a
better understanding on how the facility is operated, but Wheelabrator, although every
courtesy has been extended, has refused to provide the documents. Attorney Kimmell
stated that the Board of Selectmen see that as an example of a larger problem which is the
lack of a defined relationship between the town and the facility.
Attorney Kimmell stated that most towns that host facilities such as Wheelabrator issue
site assignments and have host agreements - these documents really spell out the
relationship between the parties and it is very helpful to both sides to have that defined
clearly.
Attorney Kimmell stated that on that basis, the Board of Selectmen has asked the Board of
Health to vote to require Wheelabrator to apply for a site assignment from the local Board
of Health. Attorney Kimmell stated that the Board of Selectmen does not see this as
adversarial relationship, they see it as a way of strengthening their relationship.
Mr. Osgood stated that he does not see this as a bad thing. Mr. Osgood stated that the
Board of Health needs to know what goes on at Wheelabrator because a lot of times
people ask questions that the Board is unable to answer. Mr. Osgood stated that at times
there were minor problems and they did come down to Wheelabrator and were able to
resolve the problems. Mr. Osgood stated that probably is not the best way to do it. Mr.
Osgood stated that we need to plan in advance so that we always know what is going on.
Mr. Osgood stated that he does not see this as a adversarial thing either and as a matter of
fact it might be beneficial because there are some people out there that would like to shut
that plant down - they're not here tonight but surely they will be and this Board, whether
we like it or not, will be forced to sit between both parties. Mr. Osgood stated that this
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Board is not trying to shut this plant down we are trying to establish a relationship with
Wheelabrator and this is one way of doing it.
Dr. MacMillan arrived at 7:25 p.m. and Mr. Osgood briefed him on what had just
transpired.
Dr. MacMillan asked Mr. Osgood if this was the site assignment for the renovation or is it
the original site assignment? Mr. Osgood stated that there was never an original site
assignment.
Mr. Osgood asked the Board Members if they have any questions or comments.
Dr. Rizza- no comment. Dr. MacMillan - no comments.
Mr. Osgood stated that he would like to hear the other side so he asked the Attorney for
Wheelabrator to introduce himself and to state his case.
Attorney Steven Richmond introduced himself and the Plant Manager, Jim McGiever.
Attorney Richmond stated that he does agree with Attorney Kimmell about the statute as
it reads but disagrees with the conclusion - they feel quite strongly about a second site
assignment. Attorney Richmond stated that this facility was site assigned by the State in a
very exhaustive process back in 1982. Attorney Richmond would like to talk about what
the statute says and about some of the facts. Attorney Richmond stated that the State site
assignment was appropriate. Attorney Richmond stated that the statute says, "no place
shall be established or maintained or operated by any person as site or a facility until it has
been assigned." Attorney Richmond stated that the key issue here is the question whether
a place was established by a person as a site or a facility and also whether the site was
established by the state or by some other party. Attorney Richmond stated that if it was
established, maintained and operated by the state then only the state has jurisdiction over
the site assignment - the Board of Health does not have jurisdiction over it. If the site was
established, maintained and operated by someone other than the state then only the Board
of Health has jurisdiction over the site assignment. Attorney Richmond stated the facts
only allow the conclusion that the site was established by the State. Attorney Richmond
stated that what he found as he looked at the information that developed over the years
was that the state wasn't the promoter, the state was essentially the developer - it
conceived the project in its initiation, it solicited its proposals to the project, it selected the
contractor to build the project, it applied for the key environmental approvals as the
project proponent, it acquired the land for the project, it guaranteed the disposal of ash at
a landfill, it paid money to the landfill to develop to capacity so that the ash disposal
capacity would be available, it served as a first contract community representative for
NESWC to insure that the deal would go through - it was not just involved, it was the
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Minutes: December 12, 1996
project promoter. Attorney Richmond stated that this involvement started back in 1973
when legislature created this Public Bureau of Solid Waste Disposal. Attorney Richmond
stated that the purpose of that bureau was to develop regional solid waste solutions and to
help communities join together to form regional disposal facilities. Attorney Richmond
stated that in 1973 after this bureau was established the Merrimack Valley Community
came to the bureau and said, "help us to develop a facility" - the bureau than became the
promoter-the bureau put together requests for proposals. Attorney Richmond stated
that the proposal says, "the Commonwealth will agree to the following summaries of
responsibilities: the Commonwealth will provide the site, the Commonwealth will provide
site information, the Commonwealth will approve a standard fixed price for the service,
the Commonwealth will provide a central point for the gathering of permits, the
Commonwealth will prepare the environmental impact report, the Commonwealth will
provide assistance to deem financing, the Commonwealth will provide sanitary landfill
disposal residuals, the commonwealth will approve the design and construction of the
facility based upon the proposal judged by the Commonwealth to be the best and most
applicable to the needs of the state. Attorney Richmond stated that this goes well beyond
just procuring the land; the Commonwealth promoted this project and if that does not
show that the Commonwealth establish the project then he was not really sure what the
statute could mean by"established".
Attorney Richmond stated that the project proceeded with state participation and
promotion from 1973 - 1982 when the facility was site assigned. He stated that there
were a series-of events that unfolded as the state essentially puts out the RFP obtained a
number of responses, reviewed the responses, selected a company and then walked
through the development and worked with NESWC, and procuring the land through
eminent domain; the Commonwealth conducted all these activities as the state agency
establishing the project. Attorney Richmond stated that he also wants to make a point
that the town was fully involved -the town was definitely involved in the siting process.
Attorney Richmond stated that there was a public hearing in North Andover by the state
as the project component for siting purposes. Attorney Richmond stated that the Board
of Selectmen submitted'a letter to the state requesting that certain conditions be placed in
the site assignment and the state approved all of those conditions so when the site
assignment was issued all of the town's conditions were placed in the site assignment.
Attorney Richmond stated that the Board of Selectmen voted twice, not once, but twice
to approve the project and the issuance of bonds to finance the project. Attorney
Richmond stated that the process for the site assessment was not ignored, it was not swept
under the rug; this was a public process that the town participated in and they are
surprised at this point to have this issue resurrected because they do not understand where
it comes from; this was clearly a legitimate process that everyone went through back in
1982.
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Mr. Osgood stated that he was on the Board of Health and he knows what Attorney
Richmoid is talking about and a lot of the things stated are correct. Mr. Osgood stated,
however, that the state was never the operator, the facility was operated by a private
company. Mr. Osgood stated that there are some issues here, its not all black and white,
but nevertheless things have changed and it's a different world we live in today then it was
back then-the town is different, the facility is different - there are a lot of issues here that
have to be resolved and maybe they have to be resolved in court. Mr. Osgood stated that
the town has issues today that they didn't have then and a mistake was made when the
town did not issue a site assignment. Mr. Osgood stated that he knows that the town was
involved and that he went to some of those hearings. Mr. Osgood stated that it is not all
cut and dried and that the town needs something more than it has now and the site
assignment seems to be the way to go. Mr. Osgood stated that he does not know how the
other Board Members feel but this matter has not been discussed by the Board until today.
Mr. Osgood stated that being a three member board is a problem because the open
meeting law states you can not have a quorum talking about issues and any two of them is
a quorum.
Dr. MacMillan asked, "how much will the retrofitting cost and how much is the town
kicking in or the individual towns in the areas how much do they have to kick in -where is
the state since the state is the promoter?" Dr. MacMillan asked Attorney Richmond to
give him a summary of what is going to happen. Attorney Richmond said, "that is a good
question but unfortunately he does not have that information. Attorney Richmond stated
that he has not been involved in those negotiation.
Mr. McGiever stated that they are currently negotiating with NESW about revising the
contract as part of that the retrofitters rolled in to the tip fees.
Dr. MacMillan asked, "does each community pay equally into this"? Mr. McGiever stated
that all will pay prorata. Dr. MacMillan asked, "does North Andover get any
consideration for having this in our community - do we get any break"? Mr. McGiever
stated that North Andover gets $2.15 per ton for every ton that crosses the scales about
$900,000 a year. Attorney Richmond stated that the legislature established the fee which
every community would be paid. Mr. McGiever stated that the host community should be
receiving monthly letters stating the tonage, and receiving a monthly check from State
Street Bank.
Attorney Kimmell stated that other towns not only get $2.15 per ton but pay zero tipping
fees for trash disposal. Attorney Kimmell stated that the Town of North Andover is not
paying zero tipping fees, it is paying much higher than the market rate. Attorney Kimmell
stated that there is no question that if this town is compared to other towns, it is a very
substantial disadvantage.
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Attorney Richmond stated that if economics are being considered, it is not that North
Andover is in a position that is worse off than potentially other host communities because
money is going into Wheelabrator pocket -Wheelabrator makes very little money for this
plant.
Mr. Osgood stated that the Board's considerations have nothing to do with the
economics, it may be the Board of Selectmen's consideration, but the Board of Health's
consideration has to do with other issues such as health and the environment and that is
the reason why this Board is pushing for a site assignment.
Dr. Rizza spoke too softly I could not pick up what he was saying.
Mr. Osgood reiterated that he does not think this is such a bad deal - it doesn't have to be.
Mr. Osgood stated that he understands why Wheelabrator does not want to do it.
Attorney Richmond stated that the last thing he wants to do is to be in an adversarial
position. Attorney Richmond stated that he feels very strongly that this facility was
appropriately site assigned and the company does not agree at this point to do any site
assignment process. Attorney Richmond stated that they would be happy to deal with
these issues - "let's put them on the table and talk about them- if there are health issues,
environmental issues, we are absolutely pleased to discuss them with you." Attorney
Richmond stated that the site assignment process was appropriately completed in 1982
and it would be improper for them to participate in another one. Mr. Osgood stated that
he understands Attorney Richmond's point and they can agree to disagree but he thinks
this issue has to be resolved and this is one way to do it. Mr. Osgood stated that he thinks
the site assignment should be done and it should have been done at the beginning. Mr.
Osgood stated that what he thinks should be done is forget about what went on in 1982;
if Wheelabrator is going to spend 30M or 40M dollars on this facility that in itself would
require a site assignment. Mr. Osgood stated that this facility is going to be modified to
the tune of 40 million dollars and the Board of Health has a right to know what is going
on there and the site assignment process is one way to do it.
Dr. MacMillan asked, "what is the involvement of the site assignment, i.e. how long does
it take, how much does it cost, does it interfere with your schedule of events"? Attorney
Richmond stated that it is quite involved. Dr. MacMillan asked, " does it take 3 months, 6
months"? Attorney Richmond stated that under the current process they need to inform
DEP, prepare a full investigative report, hold public hearings, and it is very long and
expensive. Attorney Kimmell stated that the process that Attorney Richmond is
describing is the process advised for facilities built after 1987. Attorney Kimmell stated
that Attorney Richmond is correct and under those procedures, first DEP issues a site
suitability report, and the Board of Health takes that report and holds trial-type hearings at
which will testimony will be heard under oath with cross examination, and it is very
involved procedure. Attorney Kimmell stated that he does not think that those procedures
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apply here because we're not talking about site assigning the new facility we're talking
about correcting what was done previously. Attorney Kimmell stated that what logically
applies would be the procedures that were in effect at the time that the site assignment
should have been obtained - those procedures are considerably less involved.
Dr. Rizza spoke too softly - unable to hear.
Mr. Osgood stated that we have to resolve this site assignment issue, but no matter what
happens here this Board still needs to work with Wheelabrator and we need to develop a
different type of relationship then what we had in the past. Mr. Osgood stated that the
Board of Health keeps getting asked about Wheelabrator, "what is going on" - more and
more people keep asking questions such as, "did you know that there are x number of
dioxins coming out of there" and we do not know if they are right, wrong or indifferent.
Mr. Osgood stated that this Board needs to know that and informed Wheelabrator that
there is a group in town that meets periodically about these issues. Mr. Osgood stated
that the Board needs to respond to these people. Attorney Richmond stated that they
could provide the Board with information and develop a closer relationship - they will be
happy to do that but they will be thrust into an adversarial position if the Board insists on
pursuing the site assignment process.
Mr. Osgood stated that the fact that we may have to go to court to have someone else
decide who is right and who is wrong is adversarial technically but that is sometimes the
way it has to be decided. Attorney Richmond stated that is an expensive process for all of
us. Mr. Osgood stated that he understands that.
Attorney Richmond asked Attorney Kimmell to respond to the additional facts.
Attorney Kimmell stated that as he understands Attorney Richmond's argument is that he
essentially is saying that in addition to the state being a landlord, the state is also a
promoter. Attorney Kimmell stated that Attorney Richmond conceded that the state does
not maintain the facility or operate it - the disagreement between the two of them is clear
and narrow- it concerns the word "established".
Mr. Osgood stated that the State did promote this facility but they never operated it.
Attorney Kimmell stated that the key thing is that the statute in no way exempts facilities
that are promoted by the state, it exempts facilities that are established, maintained and
operated by the state. Attorney Kimmell stated that what he thinks established really
means in this context is "built" - to establish a facility is to create a facility on the ground
and it is clear from the documents that he has seen that the State did not do that. It might
be a very different story if the State owned this facility and entered into some management
agreement with Wheelabrator and thereby Wheelabrator operated it on the State's behalf.
Attorney Kimmell stated that this facility is a private for profit facility - it is no different
than quite a number of other facilities that are private for profit facilities that get site
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assignments from the Board of Health. Attorney Kimmell stated that in addition in terms
of the financing - actually the financing came from local industrial planning, not the State,
so to that extent the real promoter of this facility is the Town of North Andover and that
makes it a local facility- and if anything a local facility has to get approval from the Board
of Health.
Attorney Kimmell stated that it is clear that there is a disagreement over this, but at least
nothing that he has heard would persuade him that the activities that the Commonwealth
did in the late 70's early 80's makes this a public facility. That is the key issue; whether it
is a public or private facility. Attorney Kimmell stated that it is really a private facility and
that being the case, he believes the town has the better of the argument here - this is really
a private facility being operated on public land and that is not enough to exempt it from
local control.
Attorney Kimmell stated that to give an example - if it really were exempted they would
have never applied for a building permit - it would have been exempt from all zoning and
all regulations and he does not think they are claiming that. Attorney Kimmell
understands that Wheelabrator obtained a building permit.
Attorney Kimmell stated that if you look at the statute and the case law that deals
generally with this issue, this is not a facility that is being owned and operated by the
Commonwealth, therefore it does require a site assignment.
Mr. Osgood asked Attorney Richmond if he had anything to say to Attorney Kimmell's
remarks.
Attorney Richmond stated that he disagrees and it's going to be a costly disagreement for
both sides.
On a motion by Dr. Rizza, seconded by Dr. MacMillan, the Board voted
unanimously to request a site assignment at the Wheelabrator Environmental
Facility in North Andover, MA.
PUBLIC HEARING- SUMMARY OF PROPOSED RULE AUTHORIZING FEES
FOR OUTSIDE CONSULTANTS:
Mr. Osgood opened the public hearing and read the advertisement which was placed in the
Lawrence Eagle-Tribune on December 5, 1996,
Mr. Osgood stated that all should have a copy of the proposed regulations. Mr. Osgood
stated that these regulations allow the town to assess a fee to effectively give the Board
the technical expertise needed to do this work on the site assignment -whatever permit
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they are applying for and this fee is put into a special account and whatever is not used
goes back to them. It is not something that goes back into the general fund. The money
for one project goes into one fund, if there is another project it goes into another fund.
Attorney Kimmell stated that this is a generic regulation which will allow the Board to
assess fees for a great number of projects, not just a site assignment application.
At this point in time Attorney Richmond asked for a copy of the regulations and time was
given to Attorney Richmond to review the regulations.
Attorney Richmond stated that the regulations state that the Board is considering
establishing a fee without limits and to impose that fee on the applicant - this is a difficult
thing. Attorney Richmond stated that there is nothing in this proposal that would
propose any sort of limit on the amount that could be expended to review an application
and there is no right to appeal on the amount that would be expended or whether what is
being expended is too great. Attorney Richmond stated that if, for instance, someone
hires a lawyer who charges $350.00 per hour and the lawyer wanted to spend three
months reviewing this particular matter, then the fee would be very high. Attorney
Richmond stated that there is nothing in the regulation to allow the applicant to say that is
an unreasonable use of my money.
Mr. Osgood stated that he thinks that the reason that it is not there is because this is not a
document specifically for your case - it might apply to some little thing that is $200.00 or
some big thing that is $50,000. Mr. Osgood stated that he guesses that the remedy is with
the courts.
Attorney Kimmell stated that in the first paragraph it does require that the fees be
reasonable and in addition the fourth section also uses the words reasonable and directly
related to the project. Attorney Kimmell stated, "These regulations in front of you are
taken directly from the language from the statute that authorizes these fees and uses the
same language as the statute does." Attorney Kimmell stated that he thinks the legislature
certainly made a determination that the words "reasonable" is a sufficient was of curbing
the problem.
Mr. Osgood stated that the Conservation Commission in town does basically the same
thing - they set up a revolving account and they charge people a reasonable fee and it has
never been a problem.
Attorney Richmond requested that, given the fact that he had not had the opportunity to
study this regulation, the Board defer acting on this until he can take a look at it and take
a look at the statute as to what Attorney Kimmell is referring to. Mr. Osgood asked
Attorney Kimmell if he had a problem with that. Attorney Kimmell responded, "I do
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because this is really just a generic regulation". Mr. Osgood stated that his only comment
is that he does not want to get into a fight with these people but they did just receive these
regulations tonight and to ask them to comment on them in five minutes is unfair. Mr.
Osgood stated that the Board of Health has a meeting on December 19"' would it be
unreasonable to tell them that this is what we intend to do - we intend to pass this
regulation at the Board of Health meeting on December 19I` - is that unreasonable?
Attorney Kimmell responded, "no, but I would have to make a counter proposal which is
to act on this tonight and to invite Wheelabrator to come to the meeting next week.
Attorney Kimmell thinks it is appropriate to act on this tonight.
Attorney Richmond asked if there was some application to be filed. Mr. Osgood
responded, "no, the only thing is that we did advertise for a public hearing and it has been
posted." Mr. Osgood stated, "Whatever we can do, we can undo - it is not cast in stone."
Dr. MacMillan stated that the Board will be passing it anyway - it is something we're
going to do anyway.
On a motion by Dr. MacMillan, seconded by Dr. Rizza, the Board voted
unanimously to adopt the rules & regulations authorizing fees for outside
consultants as written, effective today.
John S. Rizza, D.M.D., Clerk