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HomeMy WebLinkAboutMiscellaneous - 0 Holt Road7�a5s ��sp�e�y �_ �riw�° pG� I/ F. 9 TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at Stevens at Memorial Library, 343 Main Street, Nortb Andover, MA on 7:30 P.M. to all parties interested in the appeal f 0 as the setts g By SETECH, inc., 2S5 Holt Road, North Andover, MA under from the consu�uction of air determi=dons made by the Building Comtnussioner concerning emissions control equipment and adjacent lime storage silos at a height that of a ting boiler maximum building and structural height limitations and the building that is the subject of a variance issued on April 13, 1982. Applicant requests a determination that a building permit for the proposed air emissions controi equip=nt and adjacent lime storage silos does not require a variance from the applicable height 1imiMiOs in the 1-2 district,' as well as a deternlination that the heht Aprig 13O 1982. f its current boiler building not require a modification of the Vananc Said premises is property with frontage on the East side of 258 Holt Rd., which is int Main zoning District. Plans are available m for review atthe hours of 9 A.M. a 1 office p he Building Dept,, 120 SI,, Monday through Thursday By order of t2u Board of Appeals William Sullivan, Chairman publisbed in the E.T. 5/26/98 & 612198 TOTPL� P. 71; 21 BOARD OF APPEA 05/21/98 13:07 TX/RX N0.9446 P.002 TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the North Andover High School, 675 Chickering Rd., North Andover, MA., in the cafeteria on Tuesday the 19th of May at 7:30 P.M. to all parties interested in the appeal of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA requesting a Variance from the requirements of Section 7, Paragraph 7.4, of the Zoning Bylaw, to allow the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations. Applicant requests confirmation that the height of its current boiler building complies with the Variance issued on April 13, 1982, or seeks a minor modification to ensure that the building height falls within the terms of the Variance. Applicant requests Variance/ Determination from the requirements of Section 8, Paragraph 8.1 (5), of the Zoning Bylaw, to allow the addition of four parking spaces at the facility, beyond the existing 52 spaces. Said premises is property with frontage on the East side of 285 Holt Rd. which is in the 1-2 Zoning District. Plans are available for review at the office of the Building Dept., 120 Main St., Monday through Thursday from the hours of 9:AM to 1:13M. By order of the Board of Appeals, Walter J. Soule, acting Chairman Published in the E.T. 4/28/98 & 5/5/98. 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I TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the North Andover High School, 675 Chickering Rd., North Andover, MA., in the cafeteria on Tuesday the 19th of May at 7:30 P.M. to all parties interested in the appeal of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA requesting a Variance from the requirements of Section 7, Paragraph 7.4, of the Zoning Bylaw, to allow the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations. Applicant requests confirmation that the height of its current boiler building complies with the Variance issued on April 13, 1982, or seeks a minor modification to ensure that the building height falls within the terms of the Variance. Applicant requests Variance/ Determination from the requirements of Section 8, Paragraph 8.1 (5), of the Zoning Bylaw, to allow the addition of four parking spaces at the facility, beyond the existing 52 spaces.. Said premises is property with frontage on the East side of 285 Holt Rd. which is in the 1-2 Zoning District. Plans are available for review at the office of the Building Dept., 120 Main St., Monday through Thursday from the hours of 9:AM to 1:PM. By order of the Board of Appeals, Walter J. Soule, acting Chairman Published in the E.T. 4/28/98 & 5/5/98. Aegalno/4 C N rot OI " N". .N.� iN •� p•--•-•` M l0 O N N•O Vi N N (n j (p OI C Q NI N Co N V O sY «. 0 0 C L C ro" t d L ° N N t •- E U ^Q 0- N >. �„ L NCL•"' N COD fA J� N C S rL 7 C ftf �. N> C y f� C V ... N !- �, O ... O. C `L-' w .-. ,p '20)— O U t0 C N U U «'tC 01 CO W�Q ac Y 1-�t4N oAELgoc°my Eo arQ. >�m wm aWrc >WW TQNN V NC aaN "C ,d NO.ro:= Ofga °�-o-i6 CNN 0 .N,C CIS O N- 0d 3 NN0 00 OCL . LLONda�>L>o.--�y�Q>Erom2°mo�E ��3oNy.�N NophO>. w n�"omnNoYt �a Cc L6 OGOQNoov0.00A mN3 t -2m ywoy°vrn -0 a) �mYomomaxi ycmm� � t oQUc�a 7a U LL 'r.- 3?QNCN'C 04:- L Oc�N �OO(CtlN N�•N (CCco.a 7.y 0 4•�N��'a NN .m°OC>0 >,^- °.O �CI� O=QO y o u �Q d3"i cool - ma'E o y• m t �° w E y c O1 E E caa-E v1 N=(V O N n0 Elm �a -HMG Nm�r "rte �.oAN _NN,�NN�c2tERa�=�'-oo16 �N ca`)!=,a0 °c �MO)LCO pad 0 C's mN2oNOo_o�Yadyy Q�cNYENo«3 QEo NN� ���d�aN0 cN-m °>� $ OQQ'-,c o N N E ;_ rO' r o itl Zi0Z LZLZ.0oNm� m or3Na r ��roowacca�"o�oLNn3��O� M m=N t����= E��° '3Nrnx`ccaa.c�o L�anN w3Yo°•- o N--•- =3�y�cvi'�2�2�-tgomNa�iEtEwa°O.C.0 ME$3>a�Y�`o�aa v°im3y �d�mtgl=-oi lil 9C� ° o °Gl�2ii Any appeal shall be filed within (20) days after the date of filing of this notice in the office of the Town Clerk. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION n0n0t=DTV- l00% wf%l+ PH JOYCE BfiAQw" RAW TO N 0 L k NORTH ANDO ER AuG 25 2 28 r1\VI L-1\ 1 1 . - . NAME: Massachusetts Refusetech Inc. DATE: 6/11/98 ADDRESS: 285 Holt Rd. PETITION: 023-98 North Andover, MA 01845 HEARING: 6/9/98 The Board of Appeals held a regular meeting on Tuesday evening, June 9, 1998 upon the application of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA., under Section 10.4 of the Zoning .Bylaw from determinations made by the Building Commissioner concerning the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations and the maintenance of an existing boiler building that was the subject of a variance issued on April 13, 1982. Applicant requests a determination that a building permit for the proposed air emissions control equipment and adjacent lime storage silos does not require a variance from the applicable height limitation in 1-2 District. The following members were present: William J. Sullivan, Robert Ford, Scott Karpinski, Ellen McIntyre, George Earley. The hearing was advertised ii by regular mail. Upon a motion made by Geor unanimously voted to make a height of proposed addition ar this facility (MRI) is not exemF is itself neither a State nor a p1 subdivision in seeking the va6 that when the facility was first I zoning. Consistent with this rel claiming that it was immune frc Massachusetts General Law, C variance requirements were in I intended for the specific facilitie application and not the proposes Robert Ford, Scott Karpinski, El decoct/15 i, all abutters were notified ird 'of Appeals require a VARIANCE for opinion of the Board that :y principles because MRI e State or any political determination is the fact Nould be subject to local g variances, without ever unity under he height limitation and the earlier variance was aadier variance Villiam J. Sullivan, BOARD William J. Sullivan, Chairman Zoning B and of Appeals TO N • �� N4RN ANDD ER TOWN OF NORTH ANDOVER MASSACHUSETTS AUG 25 2 28 Any appeal shall be filed BOARD OF APPEALS within (20) days after the date of filing of this notice in the office of the Town Clerk. NOTICE OF DECISION PROPERTY: 285 Holt Rd. NAME: Massachusetts Refusetech Inc. DATE: 6/11/98 ADDRESS: 285 Holt Rd. PETITION: 023-98 North Andover, MA 01845 HEARING: 6/9/98 The Board of Appeals held a regular meeting on Tuesday evening, June 9, 1998 upon the application of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA., under Section 10.4 of the Zoning Bylaw from determinations made by the Building Commissioner concerning the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations and the maintenance of an existing boiler building that was the subject of a variance issued on April 13, 1982. Applicant requests a determination that a building permit for the proposed air emissions control equipment and adjacent lime storage silos does not require a variance from the applicable height limitation in 1-2 District. The following members were present: William J. Sullivan, Robert Ford, Scott Karpinski, Ellen McIntyre, George Earley. The hearing was advertised in the Lawrence Tribune on 5/26//98 & 6/2/98 and all abutters were notified by regular mail. Upon a motion made by George Earley and seconded by Robert Ford, the Board of Appeals unanimously voted to make a positive determination that the petitioner does require a VARIANCE for height of proposed addition and/or modifications of existing buildings. It is the opinion of the Board that this facility (MRI) is not exempt from local zoning under Governmental immunity principles because MRI is itself neither a State nor a political subdivision of the State nor an agent of the State or any political subdivision in seeking the variance for the retrofit of the facility. Critical*to this determination is the fact that when the facility was first proposed the Commonwealth represented that it would be subject to local zoning. Consistent with this representation, MRI applied for and obtained zoning variances, without ever claiming that it was immune from zoning. The Board also finds the zoning immunity under Massachusetts General Law, Chapter 40A., Section 9, isn't applicable because the height limitation and variance requirements were in place prior to 1987. Finally, the Board finds that the earlier variance was intended for the specific facilities as set forth in the plans that accompanied the earlier variance application and not the proposed additions and modifications. Voting in favor: William J. Sullivan, Robert Ford, Scott Karpinski, Ellen McIntyre, George Earley. BOARD O William J. Sullivan, Chairman Zoning B and of Appeals decoct/15 "0q TM 0r ",o 1•,ti0 C71 o JOYCE 8'R' .. p TOWN CLL �dW Irvipa * i NORTH ANC,'-R . ; ER Ss,� pus 44 PM 138 TOWN OF NORTH ANDOVER MASSACHUSETI"S BOARD OF APPEALS BOARD OF APPEALS DECISION Massachusetts REFUSETECH. Inc. 285 Holt Road North Andover, MA 01845 DECISION Petition #023-98 The Board of Appeals held a public hearing on Tuesday evening May 19, 1998, and continued that public hearing on June 9, 1998 and to July 14, 1998, and August 11, 1998 to consider the application of Massachusetts REFUSETECH, Inc. requesting an Earth Removal Permit with respect to premises at 285 Holt Rd., North Andover, Mass 018. 5. The following conditions apply: 1. The soils to be excavated are comprised of original site soils plus clean structural fill. 2. The excavation material will be stockpiled on-site, not trucked off-site. 3. While stored on-site, measures will be taken to prevent wind and water erosion of the stockpile (e.g.; containment, silt fences, hay bales, seeding, etc.). 4. The soils will be re -utilized on-site for backfilling foundations and re -grading construction area contours. 5. If excavated soils are sent off-site, they will, be tested and managed in accordance with the applicable regulatory standards. 6. That all movement of soil is in accordance with the Dust Control Plan (as attached) dated July 29, 1998, for Mass REFUSETECH, Inc., by " EMCON' of 3 Riverside Drive, Andover, MA 01810. 7. The quantity requested of earth removal to be no more than 3,,000 yards (well below the 5,000 yard limit). The following members were present throughout the public hearing, and voted to grant the requested Earth Removal Permit. Chairman William J. Sulllivan, Vice -Chairman Walter F. Soule, Robert Ford. Ellen McIntyre, and George Earley. William J. Sullivan Zoning Board of Appeals attachment/ ml/soil ,P U ynh t; BOARD OF APPEALS DECISION ******************************* RECEi\1EO JOYCE BRADSHAW TOWN CLERK NORTH ANDOVER luL. 79 I21�4 P� '98 Massachusetts REFUSETECH, Inc. 285 Holt Road * DECISION North Andover, MA 01845 * Petition #g.�J-_qg * ******************************* The Board of Appeals held a public hearing on Tuesday evening May 19, 1998, and continued that public hearing to June 9, 1998, and to July 14, 1998, to consider the application of Massachusetts REFUSETECH, Inc. requesting, with respect to premises at 285 Holt Road, North Andover, the following zoning relief (1) a VARIANCE from Section 7.4 of the Zoning Bylaw to allow the height limitations of the Zoning Bylaw to be exceeded; (2) a MINOR MODIFICATION OF A VARIANCE issued on April 13, 1982, from Section 7.4 of the Zoning Bylaw to confirm that the existing boiler building at 285 Hold Road falls within the terms of that variance; and (3) a DETERMINATION under Section 8.1.5 of the Zoning Bylaw that the proposed number of off-street parking spaces at 285 Holt Road is adequate. The following members were present throughout the public hearing, and voted on the requested zoning relief. Chairman William Sullivan, Vice -Chairman. Walter Soule, Robert. Ford, Ellen McIntyre, and George Early. Notice of the public hearing vAs advertised in the North Andover Citizen on April 28 and May 5, 1998, posted, and mailed to parties in interest as required by G. L. c. 40A, § 11. Upon duly made and seconded motions, Board voted unanimously to GRANT the application for the reasons set forth below. lffia 1� � 1. Massachusetts REFUSETECH, Inc. ("MRI") owns and operates an existing resource recovery facility located at 285 Holt Road in North Andover (the "facility"). 2. The facility operates within the framework of 20 -year service agreements between MRI and 23 communities, including North Andover, that are members of the North East Solid Waste Committee ("NESWC"). The service agreements ensure that the facility meets the municipal solid waste disposal needs of the NESWC communities. The facility also serves private waste haulers on a contract basis. 3. The facility was constructed in the early 1980s. As part of the construction planning process, MRI sought a variance so that the tall boilers required for a resource recovery facility could be enclosed by a boiler building. The Board issued a variance on April 13, 1982. allowing the facility to be constructed to approximately 102 feet above the height of the tipping floor (equivalent to 117.5 feet above grade) ("1982 variance"). As built, the height of the existing boiler building is' 106.5 feet above the elevation of the f RECC' iVE0 JOYCE BRADSHAW TOWN CLERK 2 NORTH ANDOVER tipping floor (equivalent to 122 feet above grade). The Boal 6 AdAhk4 ex'kedance does not implicate any of the interests protected by the Zoning Bylaw. 4. In addition, on June 2, 1982 the Board granted a second variance from the height requirements of the Zoning Bylaw to allow construction of the existing stack at the facility to a height of 230 feet. 5. Federal and state requirements adopted pursuant to the federal Clean Air Act Amendments of 1990 require that additional air emissions control equipment be 'installed at the facility by no later than December 19, 2000. 6. The proposed project consists of the addition of advanced air emissions control equipment and necessary appurtenant structures,' including, among other things, spray dryer absorbers ("SDA's") and lime storage silos. The project is shown on three drawings submitted to the Board, entitled as follows: 1) "Plan to Accompany Application for Zoning Variance," dated July 14., 1998 (Drawing No. 86458-001-003 Rev. 1; 2) Lime Preparation Retrofit, General Arrangement Elevation", dated April 16, 1998, (Drawing No. 86458-001-005); and 3) "Air Emissions Control System, Retrofit General Arrag't Elevation," dated April 16, 1998 (Drawing No. 86458-001-004). (These three plans shall hereafter be referred to as "the Plans.") 7. As a result of design requirements,' the SDA's must be 110 feet above grade, while the lime storage silos must be 88 feet, 1.5 inches above grade. Under the Zoning Bylaw, the maximum allowable height is 85 feet. However, the SDA's and lime storage silos are at heights lower than the approved height of the existing facility and stack set forth in the previously issued variances. 8. The existing facility is substantial and unique. It was designed, constructed, and permitted for the sole purpose of serving as a resource recovery facility, the only such facility in the I-2 zoning district and the only such facility in the Town as a whole. Unlike certain other industrial facilities, such as factories that can change assembly lines or mill buildings that can be converted to offices or residences, there is no reasonable use for MRI's facility except as a resource recovery facility. 9. The continued use of MRI's facility requires the installation of state-of-the-art emissions control equipment adequate to meet the U.S. Environmental Protection Agency's ("EPA") new technology-based emissions standards. EPA established the new sulfur dioxide and hydrogen chloride limits based on the use of SDA's. SDA's have been demonstrated in practice to be very efficient and reliable. No alternative emissions control equipment that is as efficient and reliable as an SDA could be installed at a height of less than 85 feet. The proposed height of the SDA's is based on the flue gas residence time necessary to achieve compliance with the new emissions limitations and reaction product drying time. The residence time is a function of and is directly related to the height of the SDA. In addition, the height of the lime silos has J RECE'VED JOYCE BRADSHAW TOWN CLERK 3 NORTH ANDOVER r been minimized to the extent practicable by providing two one 10 size?silosPfathQ6 than a single larger silo. The proposed height is required to provide the necessary lime storage volume, vertical space requirements for the. lime slaking equipment and storage volume for the lime slurry product. 10. Literal enforcement of the height limitation in this case would result in substantial hardship to MRI because without the timely installation of the proposed equipment, the facility could not be put to its special purpose use. 11. The proposed emissions control equipment and associated lime storage silos will be no taller than the existing boiler building, and will merely be new components of a facility that has been in existence for over 13 years. The new structures will not change the character of the facility's industrial neighborhood from an aesthetic or any other standpoint. The proposed equipment is bracketed by taller portions of the facility on both sides, and will be barely be noticeable from any vantage point surrounding the facility. Moreover, the sole purpose of the proposed emissions control equipment and associated silos is to reduce emissions of air pollutants, and the Massachusetts Secretary of Environmental Affairs has already certified that "the project will have significant air quality benefits." Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form at 2 (Mar. 13, 1998). 12. The facility's largest shift is currently' 35 employees, which will increase to 36 as a result of the emissions control project. While the facility's current 52 parking spaces (including two handicapped spaces) are adequate to'l meet the facility's parking needs, MRI plans to increase the number of parking spaces to 56 (with three spaces designated for handicapped use, including one van accessible handicapped space). 13. The off-street parking requirements in Section 8.1.2 of the Zoning Bylaw do not address the parking needs of a resource recovery facility. GRANT OF ZONING RELIEF Based on the findings set forth above, the Board concludes that MRI has satisfied the provisions of Section 10.4 of the Zoning Bylaw with respect to the request for a variance. Specifically, the Board determines that: (1) there are unique circumstances relating to the structures on this site that are not present generally within the zoning district in which the land is located; (2) because of those unique circumstances, a literal enforcement of the provisions of the Zoning Bylaw would cause substantial hardship, financial and otherwise, to the petitioner by preventing the installation of the emissions control equipment required by law and thereby preventing lawful use of the existing, substantial, REG ElYFD JOYCE BRADSHAW TOWN CLERK 4 NORTH ANDOVER ,qq special purpose buildings and equipment which comprikola rel g ectf ery facilities; (3) desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning Bylaw which allows resource recovery facilities as 'a matter of right in this zoning district; (4) the addition of new emissions control equipment will promote the public good and satisfy the primary'purpose the Zoning Bylaw, namely, "the promotion of `the health, 'safety; ... and welfare of the inhabitants of the Town of North Andover" (section 1) by ensuring that air emissions from the facility are lower than the. current emissions and are in' compliance with federal and state laws designed to protect the public health, safety, and the environment. On the basis of these findings and conclusions, the Board grants the variance, subject to conditions 1-8 below. . The Board further grants the requested modification of the 1982 variance to allow for the existing building to be 106.5 feetabove the tipping floor, subject to condition 9 below. Finally, the Board determines that the)'proposed increase in off-street parking spaces from 52 to 56 will be adequate to accommodate the parking needs generated by the facility. CONDITIONS TO GRANT OF RELIEF 1. Within seven days from the date of this decision, MRI shall revise the Plans to show the height of the buildings and structures from a) ground level; and b) mean sea level. 2. MRI or any transferee of this variance shall comply at all times with all applicable federal, state, and local laws, regulations, and/or permit conditions. 3. This variance shall not be congtrued as authorizing an increase in the capacity of the plant beyond the currently permitted capacity. 4. This variance shall not be construed to either explicitly or implicitly authorize the construction of any building or structure other than those buildings or structures specifically shown on the Plans. 5. The construction of the project shall be in full compliance with Phase I, Phase II, and Phase III documents referenced in a letter dated July 2, 1998 from David Spencer to Steven J. Comen and Michael T. Gass, attached hereto and incorporated by reference herein, as they may be amended by David Spencer or his successor: ./ RECtiVE 1oYCE BRADS'O'k TOWN CLERK 5 NORTH ANDOVER I7��6. Prior to the issuance of a building permit, final desi11wn IlIns shall be submitted to the Building Commissioner for determination as to whether the plans are in conformance with this decision. 7. The Plans as revised pursuant to Condition 1 shall be recorded in the Essex North Registry of Deeds at the time that this Variance Decision is recorded. 8. If MRI or any transferee requests any waiver or exemption of any kind from any federal or state law, regulation, or permit requirement governing air emissions from the MRI facility, it shall provide notice of this request to the North Andover Town Manager at the time it makes the request. 9. MRI shall prepare and submit to the Board plans showing the existing boiler building from a frontal and cross-sectional view. These plans shall provide the elevation of the existing building from ground level and mean sea level. These plans shall also be recorded with the plans identified in condition 7. ,' I:\CLIENTS\NAN\ZBAVAR.NAN . North Andover Board of Appeals By: GU" I" 6174431360 ENVIRONMENTRLFUTURES jug " OPPoRATION r.oroar4f. >ieMdglXW.r3 7 Alfred C,.de Bw fare. AIA 0172340 ;617) 275.6400 SAA ,617) 275-8612 civic S. sotmer Proadeni Mr. Steven I. Comer, Esq. Goodwin, Procter & Hoar LLP Counse30c3 at Law fur MRI Exchange Place Boston, Nfassachusrtts 02109-2881 W. Michael T. Gass, Esq. Palmer & Dodge LLP Counselors at Law for NESWC One Beacon Street Boston, Massachusetts 02108 July 2, 1998 D859802S Re: Massachusetts Refusetecl% Inc. v. Palmer & Dodge LLP Civil Action No: 27:6071•C Dear Mr. Comen and W. Gass: 638 P02 JUL 14 '98 11:52 As the Independent Third Party (ITP, jointly selected by both Massachusetts ReRisetech, Inc. (" N ') and the Northeast Solid Waste Committee C NESWC") to resolve matters regarding the above referenced dispute, the ITP hereby orders that M R1 be paid $35.500,000 by NESWC for the scope of work as more fatly described below. This is a lump sum fixed price, and includes performanceguarantees. The plant wilt be required to operate in compliance with applicable laws, regulations and standards in effect as of July 1, 1998. The schedule of payments will be developed by the ITP in Phue IV. 1. This amount is deemed by the M as the fair and reasonable price to be paid for pen rutting, design, insurance and bonding, construction. startup and acceptance testing for the air pollution control retrofit, but it does not Include contingencies for extraordinary delays or events outside MPJ s control. NESWC artist pay all financing coats and sales tax. 2. MRI submitted a scope of work on October 10, 1997. which defined its proposed retrofit to comply with applicable changes of law, particularly the Clean Air Act Amendments, The price for accomplishing this proposed scope of work was estimated at approximately $43 million, 3. On November 13, 1997, NESWC objected to the price, the scope of work, and the extent of environmental enhaneernents proposed by MRI. Subsequent to that communlcaitiork ?-M wand its engineers. Camp Dresser and McKee (CDM) and Henningson IJurham and Richardson (HDR). proposed that the work could be accomplished for amounts between $32 ARCYCLFD PAPU 6174431360 ENVIRONMENTALFUTURES 638 P03 JUL 14 '98 11:52 million and SS' million. (These estimates were ba.;e'd upon a revised anchor reduced scope of work) •S In the ITP's opinion, the counter -proposals by NESWC were in compliance with applicable laws. but did riot fully anticipate actual site conditions, or alternatively provided less environmental protection to the communities than the NIRJ proposal. 5 In the ITP's opinion, the cost estimates provided by MRI were reasonable for the work defined In the original MRI scope of work document, but some of the work was unnecessary and/or did not take Rita advantage of the existing infrastructure at the site. 6. The TTP worked for several months with both MlU and NESWC, and their subcontractors and enginccrs, to redefine the scope of wont in a manner that would provide the greatest environmental protection to the public, but at the lowest cost to the communities. 7. The lump sum fixed price set by the FTP does not include any amount far MRI profit on the work to be performed. S. It is the Ti'e's understanding from joint meetings with both MRI and NESWC that the scope of work and price as defined by the ITP is acceptable. Both Parties unansimously agreed that the worst should proceed now to upgrade the existing system with the improved environmental controls. Timing will be critical in order to complete the work by 19 December 2000, and thus minimize community costs. 9. The proposed scope of work produces a retrofitted resource recovery project that will make the North Andover Project capable of performing to the highest environmental standards. No expense was spared in the effort to reduce emissions., When completed the North Andover facility t:misslons should be equal to or below thosc of any resource recovery facility. anywhere in the world. 10. The decision to proceed with scrubbers and baghouses added substantially to the cask but will reduce emissions to levels well below the most stringent federal and state standards and/or guidelines — some of which are not evens yet in effect, 11. Joint meetings held between the ITP and the U.S. Environmental Protection Agency and the Massachusetts Department of Environmental Protection have verbally endorsed the final scope of work as being fully consistent with applicable regulations and protective of health and tho environment. A written endorsement is expected in the near fluturc. 12. In the event the state enacts additional recycling requirements as pact of its implementation standards of the Clears Air Act, it is encouraged to do so, Such added recycling has not been included in the lump aura price because the ITP could not. reasonably anticipate the required changes at the time of award. 13. A scope definition was provided to the Parties by the M. ITP documentations was discussed fully (until there was no further disagreement or misunderstanding) on June 30, 1998. The conclusions were finalized by the ITP on July 1, 1998, and are memorialized in the $nal Phase I and Phase II Decisions - two documents 14 and 33 pages ui-iength, respectively. 14. The ITP believes that the combination of the Phase I. Phase U. and Phase U1 documents provides adequate definition of scope, price, performance and schedule. This documentation provides protection to the communities that the work will be completed as defined. The Fi6CYCLSO pwSA 6174431360 ENVIRONMENTALFUTURES 638 PO4 JUL 14 '98 11:53 communities h;tve assurance$ that the work when compic-ted, will perforin in accordance with applicable laws and regulations. Protection is also provided to NICRI that if the ccmmunities change the scope of work cause delays, or change their interpretation of laws and regulations, `iRI will be entitled to additional compensation. Sincc the final delivery date cannot be adjusted outward. MR1 will also 'receive added compensation if it has to accelctate its work. 15. Ii is assumed in the S35.5 million price that the work has been defined as of talay s date with respect to applicable taws, ordinancxs, and standards in efi'ect, or as they could be reasonably be anticipated by the TTP, on July I, 1998, and that it will not change. 16. It is assumed ft,- pricing pines that local permits can and will be issued to Mitt for the retrofit on August I, 1998 and that the Massachusetts Implementation Plan, when promulgated, will be substantially consistent in all material respects with documents i for final comment, ssued 17. Time is of tete essence. If local permit requirements' ere not fully defined in the next 30 days, it is the ,rTp s opinion that MRI will incur coat beyond the lump sum priCe . The rM anticipates that titers wilt be some delay in approval of permits by local boards in the Town of Notch Andover, but cannot estimate the actual time required for necessary approvals. Rather than eatfmating the time of delay, and adding such delay costs now to the jump turn Price, a variable adjustment has been made to the price. For the month of August, this b�� nt Au shall be set at $1000 per day. If fbr some reason local permits are delayed gust 3I, 1998, the daily amount will be adjusted upward by the ITP, but it Is hoped and expected that this will not be necessary. 18. The 333.9 million price set forth excludes the costs of financing, extraordinaryermitti coats, and delay costs. It also excludes changes to the agreed upon final scope of work for reasons outside MRI's control. These issues among others, will be addressed in the Phaae N decision. The ITP reserves the right to make adjustments to this Phase III decision in Phase IV based upon the discovery of new information. Respectfully submitted, David B. Spencer, Sc. D. President cc: M. Hepp, MRI S. Rothstein, NESWC A[CYCLAO PAPER DUST COINTROL PLAN FOR CONSTRUCTION ACTIVITIES MASSACHUSETTS REFUSETECH, INC. EMISSIONS CONTROL PROJECT NORTH ANDOVER, MASSACHUSETTS Preps i ed for The North Andover Zoning Board of Appeals August 13, 1998 Prepared by EMCON 3 Riverside Drive Andover, MA 01810-1121 Project 86458-001.000 --- Task 00006 CONTENTS 1 INTRODUCTION 2 CONTROL REQUIREMENTS 2.1 General 2.2 Separation of Materials 2.3 Schedule 2.4 Applicability 3 CONTROL TECHNIQUES 3.1 General 3.2 Passive Techniques 3.3 Active Techniques ene-ander 1-j:\86458001.000\final\061ocal\dust2.doc-96\dstoehre: l ii 1-1 2-1 2-1 2-1 2-2 2-2 3-1 3-1 3-1 3-1 i r 1 INTRODUCTION This Dust Control Plan was prepared for the Massachusetts REFUSETECH, Inc. (MRI) site located at 285 Holt Road in North Andover, Massachusetts. The purpose of the plan is to minimize the potential for fugitive dust generated by construction activities associated with the Emissions Control Project. The plan is being submitted to the North Andover Zoning Board of Appeals to supplement the application for an Earth Removal Permit submitted by MRI, dated April 15, 1998. 0 I r O ene-andvrl j:\86458001.000\final\061ocal\dust2.doc-95\dstoehre:l Rev. 0, 8/13/98 86458-001.000--- Task 00006 1-1 D 2 CONTROL REQUIREMENTS 0 2.1 General Areas of the site that are undergoing excavation, grading, filling, or cutting, or are subject to other dust -producing activities, will be subject to dust minimization practices. Appropriate dust control measures will be implemented to ensure that fitgitive dust emissions are minimized from all excavations, stockpiles, haul roads, permanent access roads, and all other construction work areas within the site boundaries. The proposed dust control measures are discussed more fully in Section 3. As discussed in the application for Earth .Removal Permit for the Emissions Control Project, approximately 3,000 cubic yards of soils will be excavated during the proposed construction for the installation of foundations, buried piping and electrical systems, etc. All excavation will be 0 incidental to construction of the buildings, structures, and buried services. It is presently anticipated that the excavated soil will be temporarily stored on-site prior to being reused on-site. Due to the congested conditions on site, it is anticipated that most of the excavated material will need to be moved to a central stockpiling area, rather than be left next to the excavation areas. Most of the excavated soil will be needed for backfill. Engineered fill material was brought in to 0 level the site during original construction. Therefore, most of the excavated soil is expected to be suitable for backfilling of excavations for the Emissions Control Project. Excess material not utilized for fill will be temporarily stockpiled on site and utilized for regrading and contouring of athe site. The area adjacent to (north of) the boiler building is the selected on-site location to stockpile this material. This location can be utilized to store up to 3,000 cubic yards of material. OEMCON Drawings (86458-001-002) entitled Soil Stockpile Area, dated February 19, 1998 (attached) is a partial plan of the site showing the on-site location and proposed method of temporarily storing soil before it is reused on site. For any soil storage, careful location, Qcontainment, and erosion control measures will be utilized to prevent storage pile runoff. The figure, EMCON Drawing (86458-001-008, rev. 0) entitled Stake Hay Bales and Silt Fence Details, dated February 12, 1998, illustrates typical erosion control measures. 0 2.2 Separation of Materials Prior to initiating excavation activities, any ash, chemicals or other products that could come into contact with excavated soils shall be removed from the existing surfaces. These surfaces shall be thoroughly washed down before commencing excavation activities. To prevent ash from mixing with excavated or stockpiled soils, appropriate physical barriers (such as Jersey barriers ene-andvrl j:\86458001.000\final\061ocal\dust2.doc-95\dstoehre:I Rev. 0, 8/13/98 86458-001.000--- Task 00006 2-1 O aand/or hay bales) will be installed and maintained to separate ongoing ash handling operations from construction activities. O 2.3 Schedule OPassive erosion and dust control structures, such as silt fencing and haybales, shall be installed as part of the initial preparation for construction activities. If necessary, additional passive dust control methods, such as mulching and vegetating, shall also be implemented during construction activities. All dust control measures shall be regularly maintained and/or replaced, as necessary, throughout construction activities. QActive dust control methods shall be performed daily as the work proceeds and whenever a dust nuisance occurs. Inactive soil stockpiles shall be tarped or covered within seven days of placement, or sooner if required by weather conditions, in order to minimize potential dust or aerosion conditions. 2.4 Applicability The requirements of the plan shall be enforced by MRI on all Emissions Control Project contractors and subcontractors performing work regulated by the Earth Removal Permit. Each contractor and subcontractor will be required to review the Plan prior to commencing construction activities. 11 M 0 aene-andvrl j:\86458001.000\final\061ocal\dust2.doc-95\dstoehre:I Rev. 0, 8/13/98 86458-001.000--- Task 00006 2-2 e G r LI 3 CONTROL TECHNIQUES 3.1 General Dust and erosion control measures shall be implemented to prevent wind and water erosion to soil stockpiles. Dust shall also be controlled on all roadways and other construction areas at the site at all times during construction activities. Dust control shall be accomplished through the combined use of passive and active dust control techniques. - 3.2 Passive Techniques Passive erosion and dust control methods include silt fencing, haybales, mulching, vegetating, jersey barriers, railroad ties, and tarping, or a combination of two or more of these methods. Silt fencing and haybales shall be constructed in accordance with Drawing No. 86458-001.008, Rev. 0. attached. Anchored mulch may be applied to non -traffic areas that are subject to dust generation through wind and blowing. Temporary and permanent vegetation should be established as soon as possible in any areas designated for landscaping. 0 Liquid palliatives and penetrating asphaltic materials will not be permitted as a method for dust control. E3.3 Active Techniques D I Acceptable methods of active dust control include motor sweepers, vacuums, spraying water, or a combination of these methods. Spraying water shall be repeated at such intervals to keep dust to a minimum at all times. Sufficient suitable equipment to -accomplish this shall be maintained at the site at all time. The Building Commissioner or his/her designee shall have the authority to regLure additional equipment or additional control measures if they determine such additional equipment or measures to be necessary. All such measures shall be at the cost of MRI. It is anticipated that water sprays will be the primary means of controlling dust during active construction activities. Tarps or other suitable cover materials will, however, be placed on ii,active soil stockpiles within seven days of establishing the stockpile, or soon if required by weather conditions, in order to minimize potential dust or erosion conditions. The Building Commissioner or his/her designee shall have the authority to require additional equipment or additional control measures if they determine such additional equipment or measures to be necessary.. All such measures shall be at the cost of MRI. enc-andvrl j:\86458001.000\final\061ocal\dust2.doc-95\dstoehre:I Rev. 0, 8/13/98 8648-001.000--- Task 00006 3-1 1 FLOW4" VERTICAL FACE EXISTING GRADE EMBEDDING VIEW ANGLE STAKE TOWARD PREVIOUSLY LAID SALE - FLOW WIRE OR NYLON BOUND, STRAW BALES 2 RE -BAR STEEL PICKETS, OR 2"x 2" STAKE DRIVEN 2' INTO GROUND STRAW BALE DETAILS :E DETAILS POLE ,,- NETTING BACKED FILTER FABRIC BACKFILL _WATER FLOW DIRECTION F. - NATIVE NATIVE SOIL DATE 212/98 snnF Drawing No. 86458-001.008 Rev 0 MASSACHUSETTS EmconDWN APPR REFUSETECH, I NC. NORTH ANDOVER, REV MASSACHUSETTS PRO.IECT NO. STAKE HAY BALES AND 86458-001.000 SILT FENCE DETAILS i ENE—ANDVR2/D"A: N:\DWG\E8488001\000\ANSHF-02.dwq Xrefe ANSHW501 Seale: 1 a 1.00 Dlm3cole: 1 • 1.00 Dote: 1/18/08 time 1:22 PM OpoMor: ACAOONE 0 0 D r rn z rn rn rn 0 L4 0 1 1 N O 00 to 2 O D 0* 2 g00ca Ao,P E, ;aCO �oCa =gib =o b .2 o N P 'o �Roozro OQ�mnci� ?;�y�O Z0 0z MID go-0� �o� � Z z 9 nO-4 0 O0A N on ;v Aot 02z t� 3, QF o v� 0 m m a APPLICATION FOR ZONING RELIEF MASSACHUSETTS REFUSETECH, INC. EMISSIONS CONTROL PROJECT NORTH ANDOVER, MASSACHUSETTS Prepared for North Andover Zoning Board of Appeals April 15, 1998 Prepared by EMCON 3 Riverside Drive Andover, MA 01810-1121 Project 86458-001.000 TABLE OF CONTENTS Cover Letter Application for Relief from the Zoning Ordinance Drawings Plan to Accompany Application for a Zoning Variance (Drawing No. 86458-001-003, Rev. 0, April 15,1998) Air Emissions Control System Retrofit- General Arrangement Elevation (Drawing No. 86458-001-004, Rev. 0, April 15,1998) Lime Preparation Retrofit - General Arrangement Elevation (Drawing No. 86458- 001-005, Rev. 0, April 15,1998) ATTACHMENTS 1. Description of Relief Sought 2. Letter of Authorization from the Landowner, the Commonwealth of Massachusetts 3. Summary of Principal Points 4. April 13, 1982 Notice of Decision to Grant Variance from the Town of North Andover Board of Appeals 5. Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form ene-andvrl j:\86458001.000\06local\zbatoc.doc-95\jrichard:I Rkox:1.4rE- YCE BR S1 i OR 16 18 51 AM g48, Received by Town Clerk: 11 0 Rev. 06.05.96 TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS APPLICATION FOR RELIEF FROM THE ZONING ORDINANCE ApplicantMassachusetts REFl1SETECH, Inc. Address 285 Holt Road OTel. No. (978) 688-9011 1. Application is hereby made: Da) For a variance from the requirements of Section Paragraph B and Table of the Zoning y laws. O b) For a special Permit under Section Paragraph of the Zoning Bylaws. c) As a Party Aggrieved, for review of a decision made by the Building Inspector or other authority. d) See Attachment 1 - Description of._Relief Sought and building (s) 2. a) Premises of 2e�ctledtaRroe 0 Bland numbered b) Premises affected are property with frontage on the ONorth ( ) South ( ) East (X) West ( ) side of Hol t Rd. nand known as No. 285 Holt Road. c) Premises affected are in Zoning District 1-2 and the O premises affected have an area of 636,847 square feet 777.51 feet. and frontage of 11 0 Rev. 06.05.96 O3. Ownership: a) Name and address of owner (if joint ownership, give all names) : OCommonwealth of Massachusetts Angelo Cataldo and Date of Purchase 6/16/81 Previous Owner Arl inoton Truest Company 0 b) 1. If applicant is not owner, check his/her interest in the premises: Prospective Purchaser _x_ Lessee Other 2. Letter of authorization for Variance/Special Permit Qrequired. (See Attachment 2), 4. Size of proposed building: NA front; NA feet deep; OHeight NA stories; feet_ -(see attached Table 1) a) Approximate date of erection:' 1984 b) Occupancy or use of each floor: Resource Recovery Facility c) Type of construction: Reinforced Concrete/Steel Framing w/Siding 5. Has there been a previous appeal, under zoning, on these premises? Yes If so, when? _ Variances granted 4/13/82, 6/2/82, and 6. Description of relief sought on this petition 4/9/84 See— I 7. Deed recorded in the Registry of Deeds in Book )x.1.3_ Page 1 SA Land Court Certificate No. Book Page The principal points upon which I base my application are as 0 follows: (must be stated in detail) Attachment 3 O - I agree to pay the filing fee, advertising in newspaper, and aincid!p�al expenses^A- Signatu e of Petitioner(s) 0 Rev_ 06.05.96 0 a 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 D DESCRIPTION OF VARIANCE REQUESTED ZONING DISTRICT: Industrial - 2 Required Setback Existing Setback Relief or Area or Area Requested Y.ot Dimension Area N/A Street Frontage N/A Front Setback N/A Sidi Setbacks) N/A F Rear Setback N/A Height, Existing Boiler Bldg.* 106.5 ft. approx.102 ft. (variance allowance) Height, Proposed SDAs. Ile ft. 85 ft. (zon-ing allowance) Height, Proposed Silos 88 ft. -1.5 in. 85 ft. (zoning allowance) Special Permit Request: See Attachment 1 *See footnote (e) on Table 1 Rev 06.03.96 4.5 ft. 25 ft. 3 ft. -1.5 in, r Table 1 0Height Information for Existing and Proposed Buildings and Structures Q r I I I Notes: NR = No Variance Required. (a) There are a total of two (2) SDA units proposed. The tallest points on the SDAs will be the inlet ducts, which will each have a height of 110 feet above existing grade. Two lime silos are also proposed, each with a height of 88 feet -1.5 inches above existing grade. (b)Maximum building and structure heights allowed on a lot without a variance are stated in the North Andover Zoning By-laws. No height variances are required for the proposed buildings because all heights are less than the permissible building height of 55 feet. (d A height variance is requested for the proposed structures (i.e. SDAs and Lime Silos). (e) The indicated height of 122 feet is taken from the existing grade elevation on the east side of the boiler building. This is equivalent to 106.5 feet above the tipping floor elevation that was the basis for the original building height variance. 0 ene-andvrl j:\86458001.000\06local\zbatbll.doc-96\jrichard:l 1 Existing Proposed Tallest Building Tallest Structure Tallest Building Tallest Structure Item Boiler Building Stack All SDA Units and Lime Description Silos(a) Overall 122 ft.le 230 ft. <55 ft. 110 ft. and 88 ft. -1.5 in. Height Maximum 55 ft. 85 ft. 55 ft. 85 ft. Allowed (b) Variance Previously Previously NR ` Requested Granted Granted Notes: NR = No Variance Required. (a) There are a total of two (2) SDA units proposed. The tallest points on the SDAs will be the inlet ducts, which will each have a height of 110 feet above existing grade. Two lime silos are also proposed, each with a height of 88 feet -1.5 inches above existing grade. (b)Maximum building and structure heights allowed on a lot without a variance are stated in the North Andover Zoning By-laws. No height variances are required for the proposed buildings because all heights are less than the permissible building height of 55 feet. (d A height variance is requested for the proposed structures (i.e. SDAs and Lime Silos). (e) The indicated height of 122 feet is taken from the existing grade elevation on the east side of the boiler building. This is equivalent to 106.5 feet above the tipping floor elevation that was the basis for the original building height variance. 0 ene-andvrl j:\86458001.000\06local\zbatbll.doc-96\jrichard:l 1 ATTACHMENT I APPLICATION FOR ZONING RELIEF Description of Relief Sought Attachment 1 Application for Zoning Relief Description of Relief Sought OApplicant seeks three actions from the Zoning Board of Appeals: 1. Applicant requests a variance from the North Andover zoning by-law to allow the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations set forth in Section 7.4 of the zoning by-law; 2. Applicant requests confirmation to the extent necessary that the height of its current boiler building complies with the variance issued by this board on April 13, 1982 (Attachment 4), or in the alternative seeks a minor modification to that variance to ensure that the building height falls within the terms of the variance; 3. Applicant requests a determination under Section 8.1.5 of the zoning by-law that the addition of four parking spaces at the facility, beyond the existing 52 spaces, is sufficient to accommodate the parking needs generated by this project. Notwithstanding any reservation of rights herein, the applicant respectfully requests that the Board of Appeals issue its decision on the merits of the above requested variances. D ATTACHMENT 2 APPLICATION FOR ZONING RELIEF Letter of Authorization from the Landowner, The Commonwealth of Massachusetts I� r M 04/13/98 MON 15:08 FAX 817 727 1598 EYEC.OFC.ENVIR'L.AFFRS. ARGEO PAUL CELLUCCI GOVERNOR TRUDY COXE SECRETAAY April 13, 1998 James P. McIver Plant Manager Massachusetts REFUSETECH, Inc. 285 Holt Road North Andover, MA 01845 .� .� a au :... M. Dear Mr. McIver: Z 002 Tel: (617) 727-9800 Fax: (617) 727.2754 http://vv".magn et.state.ma.uslenvir We understand that you are in the process of applying for permits to construct an air pollution control project at your facility on Holt Road in North Andover, Massachusetts. The Commonwealth of Massachusetts is the owner of the land on which your facility is situated. The Department of Environmental Management, an agency under the Executive Office of Environmental Affairs, has leased this land to you for the purpose of operating this facility. EDEA, on behalf of the Department of Environmental Management and the Department of Environmental Protection, authorizes Massachusetts REFUSETECH, Inc. to apply for a site plan review, earth removal permits, and zoning variances from North Andover that Massachusetts REFUSETECH asserts are necessary to proceed with the air pollution control retrofit project. EOEA approval of permit applications by Massachusetts REFUSETECH, Inc. neither endorses such applications nor implies approval of Massachusetts REFUSETF-CH's project. Further, nothing in this letter shall be construed or operate as barring, diminishing, adjudicating, or in any way affecting any legal or equitable right of the Department of Environmental Protection (IEP) to issue any Notice of Noncompliance, Order, Penalty or take any other enforcement action with respect to the operation of the Massachusetts REFUSETECH facility in North Andover, or in any way affecting any other claim, action, suit, cause of action, or demand which DEP or EOEA may initiate. Sincerely yours, Carol Lee Rawn General Counsel Executive Office of Environmental Affairs cc: Ralph Child, General Counsel, DEP Kate Lewis, Chief of Legal Services, DEM RECYCLED PAPER ATTACHMENT 3 APPLICATION FOR ZONING RELIEF Summary of Principal Points Attachment 3 Application for Zoning Relief Summary of Principal Points The project that is the subject of these requests consists of the addition of emissions control equipment and the necessary appurtenant structures at an existing waste -to -energy facility in North Andover. Completion of the project by no later than December, 2000 is required under new federal regulations adopted pursuant to the federal Clean Air Act Amendments of 1990. Construction of the project will be staged to minimize disruption of services to the NESWC communities, including the Town of North Andover, and it is anticipated that it will take approximately 24 months to complete construction activities. No changes will be made to the plant's capacity. If this emissions control project is not completed by the federally mandated compliance deadline, the facility would have to close temporarily until the required emissions control equipment is installed and operational. 1. Application for Variance. In order to meet the new emissions limitations imposed by federal regulation, Massachusetts REFUSETECH, Inc. (MRI) will install additional emissions control equipment and necessary appurtenant structures, including two spray dryer absorbers and associated lime storage silos. This equipment is necessary to meet new stringent air quality emissions limitations. The tops of the spray dryer absorbers and the associated lime silos will be lower than the existing building for which a variance was previously issued, but taller than the 85 foot height limitation set forth in 0 the zoning by-law. J1 The following factors should be considered by the Board: Owing to circumstances relating to soil conditions, shape, or topography of the land or structures at the site, and especially affecting such land or structures but not affecting generally the zoning district in which the facility is located, a literal enforcement of the provisions of the zoning by-law would involve substantial hardship, financial or otherwise, to MRI and other parties. A variance from the height limitation will not cause substantial detriment to the public good and will not nullify or substantially derogate from the intent or purpose of the height limitation in the zoning by-law. A. This emissions control project is required to proceed in order to comply with new federal regulatory requirements. B. The installation of spray dryer absorbers (SDAs) at a height in excess of 85 feet is necessary to ensure compliance with the new stringent federal emissions requirements, and the interrelation between this requirement and the zoning by-law is a direct function of the shape or topography of the land and uniqueness of the structures and especially affects this specific property and the structures but not other property or structures in the I-2 District. The new federal emissions limitations are technology based standards that were developed by the U.S. Environmental Protection Agency (EPA). EPA established the new sulfur dioxide and hydrogen chloride limits based on the use of spray dryer absorbers. Spray dryer absorbers have been demonstrated in practice to be very efficient and reliable. No alternative emissions control equipment that is as efficient and reliable as an SDA could be installed at a height of less than 85 feet. The Air Emissions Control Equipment General Arrangement and Elevation Drawing (Drawing No. 86458-001-004, Rev 0) shows the dimensions of the proposed SDAs. The proposed height is based on the anticipated flue gas residence time necessary to achieve compliance with the new emissions limitations. The residence time is directly related to the height. Drawing No. 86458-001-004, rev. 0 shows the dimensions of the proposed new lime silos. The lime silo heights have been minimized to the extent practicable, by providing two one-half size silos rather than a single larger silo. The proposed height is required to provide the necessary lime storage volume, vertical space requirements for the lime slaking equipment and storage volume for the lime slurry product. C. Literal enforcement of a 85 foot height limitation would create substantial hardship for MRI. Inability to construct the proposed emissions control project in excess of the 85 foot height limitation would force MRI to lay off more than 50 employees in North Andover and cease business operations until construction is permitted, creating a substantial hardship to MRI. a D. A variance may be granted without substantial detriment to the public good. This project is being implemented solely to achieve compliance with new stringent emission requirements and will significantly reduce potential air emissions from the O facility. Any delays in implementing this project will delay the substantial air quality benefits that will result from the project. The Secretary of the Massachusetts Executive Office of Environmental Affairs has reviewed this project and has O determined the following: "Implementation of the project should prove to have significant and positive impacts on local and regional air quality". A copy of this determination is attached to this application (Attachment 5). QIn addition the NESWC communities currently owe approximately $162,000,000 in debt on this facility, which debt is secured by facility revenues. If the facility ceased operations, the communities would be required to pay the debt service, pay for alternative trash disposal and pay MRI's operating fee, all without the benefit of existing revenues from trash disposal and energy sales. The Town of North Andover awould also forfeit the current annual statutory payment in lieu of taxes of approximately $900,000, plus additional benefits from a proposed Host Community Agreement that would bring total annual facility contributions to the Town to $1,250,000 beginning in 2005 and continuing for so long as the facility remains in operation. QMRI is submitting this application for this variance at the request of the Town and without prejudice to its right to assert that a variance is not required, for two reasons. Q First, the Board of Appeals has previously issued a variance allowing construction of the facility at a height that exceeds the height of the spray dryer absorbers and lime silos proposed today. Consequently, the existing height variance may be understood to permit construction of the proposed emission control project. Second, Massachusetts General Laws Ch 40 A. § 9, among other things, restricts municipalities from enforcing a zoning provision of general application such as a height limitation with respect to construction or expansion activities affecting a solid waste facility on land zoned for industrial use and limits municipal authority under the zoning laws to the imposition of reasonable conditions, pursuant to a special permit that cannot be denied. Nevertheless, the Building Commissioner has indicated that a height variance is required, and MRI requests that the Board grant the requested variance to the extent necessary for a variance. 2. Confirmation of Compliance with Existing Variance. The Board of Appeals issued a variance to MRI on April 13, 1982 allowing construction of a structure which exceeded the height requirements in an I-2 District. The variance decision stated the following: The design parameters for the boiler require a relatively tall furnace which will exceed the Table II, Industrial -2 maximum height of 55 feet by approximately 47 feet as shown on the aforementioned drawing. (Emphasis supplied). The design plans for the boiler building were submitted to the Town and a building permit was issued. The facility was constructed in accordance with the approved drawings and specifications and the required certifications were submitted by the contractor and the professional engineer. When the height of the building was measured recently in connection with plans for retrofit construction, MRI determined that the building was 106.5 feet tall, as measured from the elevation referenced in the variance. This is four and a half feet taller than the 55 plus 47 feet assumed in the variance decision but within the range of "approximately" as stated in the variance. The Town requested that MRI clarify this question before the Board of Appeals and consequently MRI hereby requests that either the Board of Appeals confirm that the building conforms to the existing variance or, in the alternative, modify the variance to allow for the height of the existing structure. In the event the Board chooses to modify the existing variance, MRI asserts the same rationale for this request as was contained in the original request for a variance that was filed in 1982. MRI is submitting its application for this variance without prejudice to assert that a variance is not required, because (a) the facility built pursuant to the 1982 variance has the protections of both the 6 year and 10 year statute of limitations provided for in Massachusetts General Laws Ch. 40A, §7, and (b) with the amendment in 1987 of Massachusetts General Laws Ch. 40A, §9, to protect the facilities on the property, the height limitation in the zoning by-law is no longer applicable. Nevertheless, in discussions with MRI, the Building Commissioner has asked MRI to proceed with this request for confirmation and compliance with the existing variance, or in the alternative a 1 D D I u I Ell modification of the existing variance, and MRI therefore requests that the Board grant this request for a variance. 3. Parking Spaces. The facility currently has 52 parking spaces, two of which are designated as handicapped spaces. This parking configuration is more than ample for both the current and the proposed property use. The facility's work force is divided into four shifts working seven days each week. The day shift during week days has the highest usage period with 35 employees on site at the same time. The other three shifts have five employees each. The proposed project will not result in an increased capacity or change in use of the facility. However, the new emission control equipment will require the addition of one employee for each shift. The highest usage period will be the day shift during week days, when 36 employees will be present. MRI proposes to increase the number of parking spaces available from 52 to 56, with three spaces designated for handicapped use including one van accessible handicap space (see Drawing # 86458-001-003, Rev. 0). The four additional spaces will more than compensate for the one additional worker during each shift, and MRI seeks a determination from the Board pursuant to Section 8.1.5 of the zoning by-law that these spaces will be sufficient to accommodate the parking needs generated by the facility. Pursuant to the request of the Building Commissioner, MRI has identified additional areas (see Drawing # 86458-001-003, Rev. 0) on the site that can be reserved for future parking if actual operations of the facility demonstrate that such additional parking is necessary to accommodate all employees and'visitors. The identified areas can provide 6 additional parking spaces. 4. Conclusion. Notwithstanding any reservation of rights herein, the applicant respectfully requests that the Board of Appeals issue its decision on the merits of the above requested variance. Further written evidence and oral testimony at the public hearing will be presented in support of this application. ATTACHMENT 4 APPLICATION FOR ZONING RELIEF April 13, 1982 Notice of Decision to Grant Variance from the Town of North Andover Board of Appeals 0-1 �•. ►••..r.. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION Any appeal shall be filed within (20) days after the date of filing of this Notice In the Office of the Town Clerk. Date ..... /!.p r i 1, . 13 1..19 P.2 .... Petition No. ........ Date of Hearing ...A p.r i).. ?., .19.8 2 Petition of ...... 1`1ASSACHUSE7TS 11EFUSETECH., I.NC................................... Premises affected .. N o r t h s i de of Hol t Road .................................... ... .. . ... ... .. . . .. .. Referring to the above petition for a variation from the requirements of the .. ?o.n i n.g . 0.y, L,a w Section 7,, P.ara.araph..7,4_.an.d.Tabl.e.2..................................... so as to permit the. constructid.n. of. a..st.ru.c.tore. which. will. exceje.d.t.he.. .... heinht..re.qui.rement.s, i.n. a.n. I.-2. .Vis.tri.ct.................................... After a public hearing given on the above date, the Board of Appeals voted to ...G RA N T. .. the ..... and hereby authorize the Building Inspector to issue a permit to ... Mas sachusetts.Refuse.tech.,.. I.nc....................................... 3dfUkxk""sXt3oYiXdf RECEI\.'I:D DA;lli I. LONG TGnI.' ,i FKK N0k1 H 1:,:WVER APR 13 1 33 PM '8Z 0-1 �•. ►••..r.. TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION Any appeal shall be filed within (20) days after the date of filing of this Notice In the Office of the Town Clerk. Date ..... /!.p r i 1, . 13 1..19 P.2 .... Petition No. ........ Date of Hearing ...A p.r i).. ?., .19.8 2 Petition of ...... 1`1ASSACHUSE7TS 11EFUSETECH., I.NC................................... Premises affected .. N o r t h s i de of Hol t Road .................................... ... .. . ... ... .. . . .. .. Referring to the above petition for a variation from the requirements of the .. ?o.n i n.g . 0.y, L,a w Section 7,, P.ara.araph..7,4_.an.d.Tabl.e.2..................................... so as to permit the. constructid.n. of. a..st.ru.c.tore. which. will. exceje.d.t.he.. .... heinht..re.qui.rement.s, i.n. a.n. I.-2. .Vis.tri.ct.................................... After a public hearing given on the above date, the Board of Appeals voted to ...G RA N T. .. the ..... and hereby authorize the Building Inspector to issue a permit to ... Mas sachusetts.Refuse.tech.,.. I.nc....................................... 3dfUkxk""sXt3oYiXdf Signed Frank Serio, Jr., Chairman Alfred. E. Frizelle,.E.sq.,.V.ice.Chairman August.ine..14....Ni.cke.rso.n............ Ma u,r i c.e . S... _ F,o ul.ds... . ............ . Wilter.F..,.So.ule..................... Board of Appeals ' ... , k-Taua,cdPY 7-" "C TowA 1 lei -k r ,: Signed Frank Serio, Jr., Chairman Alfred. E. Frizelle,.E.sq.,.V.ice.Chairman August.ine..14....Ni.cke.rso.n............ Ma u,r i c.e . S... _ F,o ul.ds... . ............ . Wilter.F..,.So.ule..................... Board of Appeals L�I 0 D R,CFI1-FD NpRTti •'- ' p� TC'�k C �+ APR 13 1 33 PM '82 ,Jt 'tACMUS'L TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS April 13, 1982 Mass. Refusetech, Inc. North side of Holt Road Petition No. 16 - '82 Mr. Daniel Long, Town Clerk Town Office Building , North Andover, Mass. 01845 Dear Mr. Lona: The Board of Appeals held a public hearing on Monday evenina, April 12, 1982 upon the application of Massachusetts Refusetech, Inc. The hearing was advertised in the Lawrence Eagle Tribune on March 29 and April 5, 1982 and all abutters were notified by regular mail. The following members were present and voting: Frank Serio, Jr., Chairman; Alfred E. Frizelle, Esq., Vice - Chairman; Augustine W. Nickerson; Maurice S. Foulds; and Walter Soule. The petitioner, Massachusetts P.efusetech, Inc.., a wholly owned subsidiary of U.O.P., Inc., of Des Plains, Illinois, seeks a variance of the provisions of Section 7, Pnr. 7.4, and Table 2 of the Zoning By Law to enable it to construct a structure which will exceed the heiaht requirements of the Zoning By Law on premises located on the North side of Holt Road. The land is owned by the Commonwealth of Massachusetts adjacent to the North Andover Sanitary Landfill and is located in the Industrial - 2 zoning district. It is proposed to construct a resource recovery system in cooperation with communities in Northeast Massachusetts and Southeast New Hampshire, known as the Northeast Solid Waste Committee Project. D -0 02," -` tiQ Massachusetts Petition No. Pace 2 Refusetech, Inc. 16 - '82 April 13, 1982 RECF E(1 TC. i;H01111 "I 0,�ER APR 13 1 33 ?X T The petitioner will eventually obtain title or release to the premises. The petitioner introduced evidence showing that the project will consist of industrial type buildings consisting of a tipping floor, storage pit, overhead cranes for feeding refuse into the system, utility type boilers, and a materials recovery system. The project will incinerate solid waste and generate electricity. Drawing No. 5-7190-01.01-009D REV 0, dated March 25, 1982 was submitted and made part of the petitioner's application. The evidence -presented shows that a major equipment component of the facility is the utility type boiler which absorbs heat from hot gasses from the combustion of the refuse. The design parameters for the boiler require a relatively tall furnace which will exceed the Table 2, Industrial -2 maximum height of 55 feet by approximately 47 feet as shown on the aforementioned drawing. Upon a motion made -by Mr. Frizelle and seconded by Mr. Foulds, the Board voted unanimously to grant.the variance as requested by the petitioner. Pursuant to Paragraph 7.4 and 10.4 of the Zoning By. Law, the Board finds that said structure will not affect the zoning district in general and that a literal enforcement of the height restriction would involve a substantial hardship to the petitioner and the Northeast Solid Waste Committee Project and, further, that the relief can be granted without substantially derogating from the �{ intent and purpose of the Zoning By Law.. { Sincerely, BOARD OF APPEALS j� Frank Serio, Jr., U Chairman AEF/jw (Plan to follow) 0 Notice of Decision to owners and Applicant Contents of Notice Recording in Registry of Deeds r provided, however, that failure of any such board or agency 22► to make recommendations within thirty-five days of receipt by such board or agency of the petition shall be deemed lack of opposition thereto. Upon the granting of a variance or special permit, or any extension, modification or renewal thereof, the permit granting authority or special permit granting authority shall issue to the owner and to the applicant if other than the owner a copy of its decision, certified by the permit granting authority or special permit granting authority, containing the name and address of the owner, identifying the land affected, setting forth compliance with the statuatory requirements for the issuance of such variance or permit and certifying that copies of the decision and all plans referred to in the decision have been filed with the planning board and city or town clerk. No variance or special permit.,_or any extension, modification or renewal thereof, shall_take.effect unta.i.l_copy of the decision bearing the certification of the town or city clerk that twent days have.be eelaPsed after the decision a _en .filed in the of i_ce_otf thejiiiy Qr tQ .tl k_and nn peal -has been filed or that if such appeal _has been filed, that it as een 1 sniff ssed 'or 'de`ni ed, i s • recorded i.n the registry 6- ' -Eeeds `for the country and ,district' in which_ the land is located aril indgxed_in. _.the... grantor index under _the. name of the owner of record or is recorded,.anO pQted.on the owner's certificate of _ti tl e...,_The. fee_. for recording or. registering shall -be paid b _the owner or applicant. Added by St. 1975, c. 80,8, s. 3; Amended by St. 1977, c. 829, s. 4c, 4d, 4e, and 4f 11-2 / A�ETE.TN;,�,��... Town"' APR 1 9 Recorded Apr.14,1983 at 11: 5AM #5037 ATTACHMENT 5 APPLICATION FOR ZONING RELIEF Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form ARGEO PAUL CELLUCCI O GOVERNOR TRUDY COXE SECRETARY :-•-••n •?rr • MAR 2 3 1998 March 13, 1998 Tel: (617) 727-9800 Fax: (617) 727-2754 http:/twww.magnet.state.ma.us/envir R CERTIFICATE OF THE SECRETARY OF ENVIRONMENTAL AFFAIRS U ON THE ENIVIRONIVIEl-FrAL 'NOTIFICATION' FORM a PROJECT NAME : Air Emissions Control Project R PROJECT LOCATION : North Andover 1J EOEA NUMBER : 11485 PROJECT PROPONENT : Massachusetts Refusetech, Inc. DATE NOTICED IN MONITOR : February 11, 1998 Pursuant to the Massachusetts Environmental Policy Act (M.G.L. c. 30, ss. 61-62H) and Section 11.06 of the MEPA regulations (301 C.M.R. 11.00), I hereby determine that this O project does not require the preparation of an Environmental Impact Report. According to the Environmental Notification Form (ENF), the project involves the addition of emissions control equipment and associated infrastructure at an existing waste -to -energy plant. The existing boilers rely on electrostatic precipitators and dry sorbent injection systems to reduce pollutant emissions. The proponent will replace the existing system with spray dryer absorbers, fabric filters, powdered activated carbon injection Q' systems, selective non -catalytic reduction systems, natural gas- fired auxiliary burners, and additional monitoring equipment. The proponent will also make physical changes to the ash transport and storage system to better control fugitive emissions. The proponent is undertaking the project to comply with the federal Clean Air Act Amendments of 1990. The project is undergoing review pursuant to section 11.27 (4)(a)(1) of the MEPA regulations, because the total project cost exceeds $1 million and the proponent is seeking financial assistance -from the Commonwealth for the project. The project will require a permit amendment for the Emission Control Plan from the Department of Environmental Protection (DEP); an a amendment to the existing Solid waste Permit from DEP; and a Sewer Connection Permit from DEP. Because the proponent is O PFI Vrl FI1 P4 PFR C EDEA #11485 ENF Certificate March 13, 1998 aseeking financial assistance from the Commonwealth for the project, MEPA jurisdiction extends over all aspects of the project that may have significant environmental impacts. Implementation of the project should prove to have significant and positive impacts on local and regional air quality. The ENF includes sufficient information on emissions control options and effectiveness to quantify impacts and evaluate alternative mitigation strategies. The proponent can finalize the details of the preferred emissions control system during the permitting process. The ENF also includes evaluation of other environmental impacts (such as traffic, water use, drainage, noise, and visual impacts) and demonstrates that these impacts will prove either minor or slightly positive. The proponent can resolve any rema-ining issues with permitting agencies. I conclude that no further MEPA review is required because the project will have significant air quality benefits; other environmental impacts should prove minor; and the review of the ENF has served adequately to disclose impacts/benefits and mitigation. The proponent can resolve any rem ining iss during the permitting process. 3/13/98 DATE prudy Co Comments received 2/25/98 North East Solid Waste Committee 3/3/98 Lawrence Environmental Action Group, Inc. 3/3/98 Anne Wein 3/4/98 Department of Environmental Protection �. TC/ASP/asp C o 6 TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS via FAX TO: Martin R. Healy, Goodwin, Procter & Hoar LLP FROM: William J. Sullivan, Chairman, Zoning Board of Appeals/ DATE: 9/1/98 SUBJECT: Your letter of August 24, 1998'regarding MRI Pursuant to your letter of August 24th regarding your request of the Zoning Board of Appeals to extend the time constraints from August 25th to September 8th, please be advised of the following: The decision was date stamped on August 25th and filed with the Town Clerk's office at that time. Your letter to us dated August 24th was received by my office on August 31st, therefore, it was received too late to accommodate your request. In the future should you wish to send any time sensitive information please send it to me via fax at: 978-. 688-9556. Sincerely, William J. Sullivan cc: Kenneth L. Kimmell, Esq. (via fax) ml/healy Post -it® Fax Note v X7671 Date !� foe pages To /• 1 From Co./Dept. Co. B �A Phone #//2-57v /&lo Phone # 9n V2's-7 Fax # 75r �F,_, # 9 v(_ IFIr� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS via FAX TO: Martin R. Healy, Goodwin, Procter & Hoar LLP FROM: William J. Sullivan, Chairman, Zoning Board of Appeals-"" DATE: 9/1/98 SUBJECT: Your letter of August 24, 1998 regarding MRI Pursuant to your letter of August 20' regarding your request of the Zoning Board of Appeals to extend the time constraints from August 25"' to September 8h, please be advised of the following: The decision was date stamped on August 25'x' and filed with the Town Clerk's office at that time. Your letter to us dated August 24h was received by my office on August 31 ". therefore, it was received too late to accommodate your request. In the future should you wish to send any time sensitive information please send it to me via fax at: 978-. 688-9556. Sincerely, William J. Sullivan cc: Kenneth L. Kimmell, Esq. (via fax) ml/healy Y TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS via FAX TO: Martin R. Healy, Goodwin, Procter & Hoar LLP FROM: William J. Sullivan, Chairman, Zoning Board of Appeals-�/ DATE: 9/1/98 SUBJECT: Your letter of August 24, 1998 regarding MRI Pursuant to your letter of August 24th regarding your request of the Zoning Board of Appeals to extend the time constraints from August 25h to September 8`t', please be advised of the following: The decision was date stamped on August 25`. and filed with the Town Clerk's office at that time. Your letter to us dated August 24`h was received by my office on August 31, therefore, it was received too late to accommodate your request. In the future should you wish to send any time sensitive information please send it to me via fax at: 978- 688-9556. Sincerely, William J. Sullivan cc: Kenneth L. Kimmell, Esq. (via fax) ml/healy Post -it® Fax Note j 7671 Date /l/ 7 d pages /� To i L L From „J Co./Dept. Co. Phone # Phone # 977 61f -q—<11 p // qj <1j J5, (�_(O Fax #%_1-1" /� - O Fax# f'0 N7 TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS via FAX TO: Martin R. Healy, Goodwin, Procter & Hoar LLP FROM: William J. Sullivan, Chairman, Zoning Board of Appeals I DATE: 9/1/98 SUBJECT: Your letter of August 24, 1998 regarding MRI Pursuant to your letter of August 24`s regarding your request. of the Zoning Board of Appeals to extend the time constraints from August 25"' to September 8'� please be advised of the following: The decision was date stamped on August 25th. and filed with the Town Clerk's office at that time. Your letter to us dated August 24`s was received by my office on August 31"`, therefore, it was received too late to accommodate your request. In the future should you wish to send any time sensitive information please send it to me via fax at: 978- 688-9556. Sincerely, i William J. Sullivan cc: Kenneth L. Kimmell, Esq. (via fax) ml/healy T i GOODWIN, PROCTER & HOAR L COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 August 24, 1998 Mr. William Sullivan, Chairman North Andover Board of Appeals 120 Main Street North Andover, MA 01845 Re: Appeal of Massachusetts REFUSETECH, Inc. From the Decision of the Building Commissioner Dear Mr. Sullivan: AUG 3 11998 � ' OARD OF PPE _;d TELEPHONE (617) 570-1000 TELECOPIER (617) 227-8591 On behalf of Massachusetts REFUSETECH, Inc. ("MRI"), I am writing to confirm the agreement of MRI to an extension of the time period in which the Board of Appeals may file its written decision on the appeal of MRI from the decision of the Building Commissioner (as distinct from MRI's application for a variance and other zoning relief) from August 25, 1998, to September 8, 1998. Thank you for your cooperation in this matter. Si erely yours, Vartin R.iHealy cc: Kenneth L. Kimmell, Esq. (By Facsimile) DOCSB\562338.1 01 . A Any appeal shall be filed within (20) days after the date of filing of this notice in the office of the Town clerk ,40RT1., JOYCE ^0 TOW i .`,:'S NORTH AND;a'ER .t� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION AUG Z5 2 28 P� ' j8 PROPERTY: 285 Holt Rd. NAME: Massachusetts Refusetech, Inc. DATE: 6/11/98 ADDRESS: 285 Holt Rd. PETITION: 023-98 North Andover, MA 01845 HEARING: 6/9/98 The Board of Appeals held a regular meeting on Tuesday evening, June 9, 1998 upon the application of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA., under'Section 10.4 of the Zoning Bylaw from determinations made by the Building Commissioner concerning the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations and the maintenance of an existing boiler building that was the subject of a variance issued on April 13, 1982. Applicant requests a determination that a building permit for the proposed air emissions control equipment and adjacent lime storage silos does not require a variance from the applicable height limitation in 1-2 District. { The following members were present: William J. Sullivan, Robert Ford, Scott Karpinski, Ellen McIntyre, George Earley. The hearing was advertised in the Lawrence Tribune on 5/26//98 & 6/2/98 and all abutters were notified by regular mail. Upon a motion made by George Earley and seconded by Robert Ford, the Board of Appeals unanimously voted to make a positive determination that the petitioner does require a VARIANCE for height of proposed addition and/or modifications of existing buildings. It the opinion of the Board that this facility (MRI) is not exempt from local zoning under Governmental immunity principles because MRI is itself neither a State nor a political subdivision of the State nor an agent of the State or any political subdivision in seeking the variance for the retrofit of the facility. Critical to this determination is the fact that when the facility was first proposed the Commonwealth represented that it would be subject to local zoning. Consistent with this representation, MRI applied for and obtained zoning variances, without ever claiming that it was immune from zoning. The Board also finds the zoning immunity under Massachusetts General Law, Chapter 40A., Section 9, isn't applicable because the height limitation and variance requirements were in place prior to 1987. Finally, the Board finds that the earlier variance was intended for the specific facilities as set forth in the plans that accompanied the earlier variance application and not the proposed additions and modifications. Voting in favor: William J. Sullivan, Robert Ford, Scott Karpinski, Ellen McIntyre, George Earley. decocUl5 BOARD OAPPEALS William J. Sullivan, Chairman Zoning 11and of Appeals w � Emcon 3 Riverside Drive Andover, MA 01810-1121 v To: North Andover Town Offices Attention: Mary Ippolito PHONE: 508/682 - FAX: 508/975-2065 September 22, 1998 Contents: One Letter to William Sullivan, Chairman and the Members of the Zoning Board of Appeals One Mylar Plan entitled "Plan to Accompany Application for Zoning Relief Project Number 86458-001.000 Recieved By: ene-andvrl -isBaa\jimsull\delrecp.doc-96\dstoehre:l P r � 3 Riverside Drive • Andover, Massachusetts 01810-1121 • (978) 682-1980 • Fax (978) 975-2065 September 22, 1998 Project 86458-001.000 Mr. William Sullivan, Chairman and the Members of the Zoning Board of Appeals Town of North Andover 120 Main Street North Andover, MA 01845 Dear Mr. Sullivan: As we discussed last week, I am providing an additional mylar copy of the Plan entitled "Plan to Accompany Application for Zoning Relief' (Drawing No. 86458-001.003, Rev. 2. This drawing was prepared by EMCON and originally presented to the Zoning Board of Appeals in July. If you have any questions or require any additional information, please do not hesitate to call me. Sincerely, 1��00 James J. Con olly, nch Manager Attachments: Mylar Plan cc: Mass. Refusetech, Inc. ene-andvrl j:\86458001.000\final\061oca1\9-211tr.doc-96\dstoehre:I 3 Riverside Drive • Andover, Massachusetts 01810-1121 • (978) 682-1980 • Fax (978) 975-2065 July 23, 1998 Project 86458-001.000 Mr. William Sullivan, Chairman and Members of the Zoning Board of Appeals Town of North Andover 120 Main St. North Andover, MA 01845 Re: MRI Emissions Control Project Application for Earth Removal Permit Dear Mr. Sullivan: Attached are original mylars and nine copies of the drawings (Air Emissions Control System Retrofit General Arrg't Elevation 86458-001-004 Revand Plan to Accompany Application for Zoning Relief 86458-001-003 Rev. 2) ,for the MRI emissions control project. As the Board requested at the meeting on July 14, 1998, the drawings have been revised by adding a reference to elevation above mean sea level for all of the proposed structures. If you have any questions or require any additional information, please call. Sincerely, E CON J es J. onnolly B anch Manager Attachments: Nine copies ea. of 2 drawings cc: J. McIver, MRI M. Killeen, Wheelabrator M. Healy, Goodwin, Procter & Hoar K. Kimmel, Esq., Bernstein, Cushner & Kimmel C. Rawn, EOEA ene-andvrl j:\86458001.000\061oca1\erthrem.doc-96\jrichard:I ' vo l � uuv � � �s au- ,. glQO�I 3 Riverside Drive • Andover, Massachusetts 01810-1121 • (978) 682-1980 • Fax (978) 975-2065 August 24, 1998 Project 86458-001.000 Mr. William Sullivan, Chairman and Members of the Zoning Board of Appeals Town of North Andover 120 Main St. North Andover, MA 01845 AUG 2 4 I 8 { BOARD OF APPEALS Re: Applications of Massachusetts REFUSETECH, Inc. for Site Plan Review Dear Members of the Board: As requested in condition 9 of the Zoning Board of Appeals Decision (petition # 023-98), Massachusetts REFUSETECH Inc. has had EMCON prepare the attached plan "Refuse Receiving and Handling, West Elevation View" to show the existing boiler building from a frontal view. Sincerely, E CON J ° e . Connolly ranc Manager Attachments: Nine copies of revised plan cc: J. McIver, MRI M. Killeen, Wheelabrator M. Healy, Esq., Goodwin Procter & Hoar M. Kimmel, Esq., Bernstein Cushner & Kimmel R. Halpin, Town of North Andover C. Rawn, EOEA ene-andvrl j:\86458001.000\06local\zbaltr2.doc-96\dstoebre:I t Wheelabrator Technologies Inc.. A Waste Management Company Phone 603.929.3000 4 liberty Lane West Hampton, NH 03842 September 1, 1998 Mr. William B. Duffy, Jr. North Andover Board of Selectmen 22 Timber Lane North Andover, MA 01845 Dear Mr. Duffy: Last night the Board of Selectmen was urged to abandon logic and good government for a mob mentality and civil conspiracy to close MRI --an existing industry invited into the town in the 1980's to fulfill a public need. The Selectmen were urged to pursue "strategies" to close the facility even though it is now lawfully operating within the industrial zoning district of the town. The emotional appeal, supported by confrontation and intimidation of those who would dare to disagree, asked that you "start from the premise that North Andover would be better off without a mass burn facility." As verification of this underlying premise, you are referred to the "mandate" of Article 16 of the 1998 Town Meeting, but asked to disregard the words of that mandate with which the opponents disagree. Throughout the permitting process for MRI, the opponents have asserted as "fact" matters that have no basis in fact. They assert as fact that MRI will generate "toxic ash." This inflammatory comment is repeated over and over again until everybody assumes its truth. Yet, the independent consultant to the Board of Health documents it as false. Throughout the permitting process for MRI, the opponents have asserted that the MRI facility was a threat to public health. Yet, EPA, DEP, and the independent consultant to the Board of Health conclude otherwise. In fact, EPA has stated that: "Once the retrofits are complete, the plants will be among the cleanest producers of energy in the country." When the Zoning Board of Appeals dealt with the facts, it was criticized. Mr. William B. Duffy, Jr. September 1, 1998 Page 2 When the Board of Health dealt with the facts, it was attacked. It was alleged that Wheelabrator was given 9 hours to make its presentation, and that the opponents were given only 3 hours. However, the less -than -9 hours were aimed primarily at making experts available for questioning from the public. Those public meetings were moderated so that the public would have its questions answered. When the Board of Health consultant disagreed with the outrageous claims of the project opponents, his credibility and ethics were attacked at a personal level. When the Planning Board refused to convert site plan review of an application to install emissions control equipment into an open forum on whether the existing plant should be closed, it is castigated for not providing due process. After the proper and announced close of the public hearing, the opponents still wanted to be heard. The Planning Board properly declined to reopen the public hearing. That was not a lack of due process as has been portrayed to you. When the Town Manager took seriously the stipulations that any closure of the MRI facility should not adversely, affect the economic condition of the Town, or expose the Town to liability, he was attacked. When you, the Selectmen, allowed independent boards of the town to do their job without interference, you were unfairly criticized. No one gave you credit for establishing a procedure under which each of the Town's boards were provided special Town Counsel to guide them, and provided the advice of independent air, noise, and traffic consultants. We urge that you not be swayed by the emotional pleas, threats, and intimidation that we witnessed last night. It is obvious that the group seeks a written "policy" from the Selectmen so that it can attempt to do to EPA and DEP what it sought to do to the Selectmen last evening. Just as Article 16 was distorted and selectively read to achieve an end not contemplated or desired by the Town Meeting, this group seeks to represent to EPA and DEP that the town wants MRI closed under all circumstances. However, such closure --even if caused by EPA or DEP--would have adverse economic consequences to the town, therefore violating the stipulations placed on Article 16. Responsible civic leaders operate in the real world. In the real world the facts show that the MRI facility has operated safely in the past, in compliance with applicable laws and regulations. Consistent with law, MRI now seeks to install new emissions control equipment which will further reduce air emissions in full compliance with the most stringent environmentally protective requirements. In Mr. William B. Duffy, Jr. September 1, 1998 Page 3 the real world, the MRI facility has made and will continue to make an important contribution to the fiscal health of North Andover. In the real world, interfering with the legal rights of a multi-million dollar facility serving the needs of 23 communities has legal consequences. Article 16 asked that the Selectmen operate in the real world. We have every confidence that you will continue to do so. Thank you for your consideration. Very truly yours, I �v Richard T. Felago Vice President and Project Manager cc: Mr. Robert J. Halpin, Town Manager Mr. Gayton Osgood, Chairman, Board of Health Mr. Richard S. Rowen, Chairman, Planning Board Mr. William J. Sullivan, Chairman, Zoning Board of Appeals Kenneth Kimmell, Esq., Special Town Counsel s:\felago\rtf\select2.doc rTi a 0 -0 0 rn 'PIP WWI U Z -N N 0 00 (n Cl) > a) Co 0 ,cL 3 3 < En C, c— CD CD !Z Cn CD > > 0 CD a, co CO) cn rTi a 0 -0 0 rn 'PIP WWI GOODWIN, PROCTER & HOAR LL COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 a August 24, 1998 Mr. William Sullivan, Chairman North Andover Board of Appeals 120 Main Street North Andover, MA 01845 Re: Appeal of Massachusetts REFUSETECH, Inc. From the Decision of the Building Commissioner Dear Mr. Sullivan: On behalf of Massachusetts REFUSETECH, Inc. ("MRI"), I am writing to confirm the agreement of MRI to an extension of the time period in which the Board of Appeals may file its written decision on the appeal of MRI from the decision of the Building Commissioner (as distinct from MRI's application for a variance and other zoning relief) from August 25, 1998, to September 8, 1998. Thank you for your cooperation in this matter. Si erely yours, artin R.lRealy ? cc: Kenneth L. Kimmell, Esq. (By Facsimile) DOCSB\562338.1 AUG 3 1 1998 dl to DF�EF,, ' TELEPHONE (617) 570-1000 TELECOPIER (617) 227-8591 On behalf of Massachusetts REFUSETECH, Inc. ("MRI"), I am writing to confirm the agreement of MRI to an extension of the time period in which the Board of Appeals may file its written decision on the appeal of MRI from the decision of the Building Commissioner (as distinct from MRI's application for a variance and other zoning relief) from August 25, 1998, to September 8, 1998. Thank you for your cooperation in this matter. Si erely yours, artin R.lRealy ? cc: Kenneth L. Kimmell, Esq. (By Facsimile) DOCSB\562338.1 J k' t caORTM „s 0,b0 0� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS Notice is hereby given that the Board of Appeals will hold a public hearing at the North Andover High School, 675 Chickering Rd., North Andover, MA., in the cafeteria on Tuesday the 19th of May at 7:30 P.M. to all parties interested in the appeal of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA requesting a Variance from the requirements of Section 7, Paragraph 7.4, of the Zoning Bylaw, to allow the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations. Applicant requests confirmation that the height of its current boiler building complies with the Variance issued on April 13, 1982, or seeks a minor modification to ensure that the building height falls within the terms of the Variance. Applicant requests Variance/ Determination from the requirements of Section 8, Paragraph 8.1 (5), of the Zoning Bylaw, to allow the addition of four parking spaces at the facility, beyond the existing 52 spaces. Said premises is property with frontage on the East side of 285 Holt Rd. which is in the 1-2 Zoning District. Plans are available for review at the office of the Building Dept., 120 Main St., Monday through Thursday from the hours of 9:AM to 1:PM. By order of the Board of Appeals, Walter J. Soule, acting Chairman Published in the E.T. 4/28/98 & 5/5/98. /Iegalno/4 Nm O 1N >^V,L.:O mCL muj�cW LLIacitl1mrncQ �mom���ovSoo'cm`°Yc o.-m,L�Yac^�� ,nom-romo, mws ��� =�oErn ¢NJ>mc= ~Noarn3ocm ytOE��ao QEm _ >fcATm �� om ymw o0 oa mui �„ c m t 3. c 3 ._ _ o 1n W Q �O'� •� c'— C N 7L 0 «y" C Om 0 O_`��� mNLL (OD L O•m !d C /0 m U U m cY N O, N O TC O,� Ur.-, m �,� U'm r �Wana.mm�mo mw°Q>E�m2 tlOm�r Amy sc. y m-ytmomm Nc..�� r oo`mrng O LLONam_f L.�LO ^-m 7C 01 v, 2- O m�mmLE &Ccm ...N o)O pCO ->.'•' .O �Z�Qm9��V�� oLmL toiceo�cocamm�a�cc'OQOE'(yo `m m-mp,c�cmi= ''m=Nmma-02ELCo tloc°0v Z ZaS'L Q'oQ« c ut o c 0 .E v -• rn. t - E y c ��' E c m m E LnN m p c a o3 m VOnWa f oZy o N -mm nom•-o'-Oo-m cd m° ac m -m 01- m $ �FNOmmca �mwmv�tnN�n�o�:3 <Eoo,cmiaNco (M 'Dim 3:.s; .0 Q Q ¢in¢Um�opZm ammm¢m�ot mQALEay-tc-o�rn-�ccaadmc°«3 eacmi•�ymccm-o :22 r (� 04 X- oZ o 0 3 ZOO mWw= E� �mrnx`ccrn_c om'@Qcmowomntn•-b'--°>�_LQ J mZ� mv9 ��. moaom�c`a) oom�mri _ 3��n¢S ole ��¢5� -_cA o �f cc m_s E N« oL�>� E� 3> m o m n._ v, 3 m Nd mmcnF-b� W Massachusetts REFUSETECH Inc. A WMX Technologies Company Phone 508.688.9011 Aril 15, 1998 285 Halt Road Fax 508.7 94.8058 p North Andover, MA 01845 North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 RE: Applications of Massachusetts REFUSETECH, Inc., 285 Holt Road Air Emissions Control Project (1) For Zoning Relief (Including Variances) (2) For an Earth Removal Permit (3) To appeal certain determinations made by the Building Commissioner Dear Members of the Board: Massachusetts REFUSETECH, Inc. plans to add additional air emissions control equipment and appurtenances to comply with new federal regulatory requirements. Enclosed are the above - referenced applications and accompanying materials, plans and filing fees in connection therewith. A brief project description is also attached to this letter. As required, each submittal contains an original plus ten (10) copies and one mylar plus ten (10) copies of the site plan stamped by a Professional Engineer. A certified abutters list from the Assessor's Office is also included. Two checks of $25.00 made payable to the Town of North Andover are included for payment of the filing fee for zoning relief and to appeal certain determinations made by the Building Commissioner. It is our understanding that these applications will be duly advertised and noticed in order that they can be heard at the Board's public hearing scheduled for May 12, 1998. If there is anything further which you require, kindly let me know. Thank you for your attention to this matter Sincerely, /McIver cc: J. Connolly, EMCON M. Killeen, Wheelabrator L. Kaplan, Esq., Goodwin Procter & Hoar K. Kimmel, Esq., Bernstein, Cushner & Kimmel R. Halpin, Town of North Andover C. Rawn, EOEA ene-andvrl-j:\86458001.000\06local\mriltr.doo96\jconnoll: l ATTACHMENT A PROJECT DESCRIPTION The proposed project is the addition of air emissions control equipment and the necessary appurtenant structures at an existing waste -to -energy facility in North Andover, Massachusetts. Massachusetts REFUSETECH, Inc. (MRI) operates the waste -to -energy facility under contract to the 23 municipalities known as the North East Solid Waste Committee (NESWC). The facility currently consists of two boilers equipped with electrostatic precipitators (ESPs) and dry sorbent injection systems. The additional air emissions control equipment is being installed to comply with federal requirements adopted pursuant to the Clean Air Act Amendments of 1990. The 40 CFR 60 Subpart Cb Emission Guidelines established by the United States Environmental Protection Agency (EPA) in response to the Clean Air Act Amendments of 1990 require existing municipal waste combustion facilities, such. as the MRI Facility, to install additional air emissions control systems. In response to these requirements, MRI will be replacing the existing ESPs and dry sorbent injection systems with new air emissions control equipment consisting of spray dryer absorbers (SDAs), fabric filters (FFs), a selective non -catalytic reduction (SNCR) system, a powdered activated carbon injection system (PACIS) and natural gas-fired auxiliary burners. Additional continuous emission monitors (CEMs) will be added and the project will include measures to reduce the potential for fugitive emissions. The selected technologies are the best and most appropriate technologies to achieve compliance with the Subpart Cb requirements at the MRI facility. Each of the proposed systems currently operate successfully at similar facilities. Acid gases (hydrogen chloride, sulfur dioxide), particulate matter, metals (lead, cadmium, mercury), and organics (dioxins/furans) will be controlled by the SDAs and FFs. Oxides of nitrogen (NOJ will be reduced using the SNCR system. The powdered activated 'carbon injection system will provide enhanced control of mercury and organics. The natural gas-fired auxiliary burners will be used to preheat the boilers during start-up, and to maintain furnace temperatures when the boilers are being shutdown. This will reduce potential emissions of carbon monoxide (CO) during periods of start-up and shutdown. The project is being implemented to reduce air emissions from the existing combustion process and potential fugitive emissions from the ash handling activities. Except for the addition of the auxiliary gas burners, there are no modifications which would effect the combustion parameters or combustion process of the existing facility. There will be no changes (increases or decreases) to the facility's capacity. The sole purpose of the project is to reduce potential air emissions from the facility. The changes to the ash handling and storage systems are designed to minimize the potential for fugitive ash emissions. The changes to the ash handling system will utilize the existing ash handling equipment and buildings as much as possible. The existing ash storage shed (three sided) will be extended and enclosed to create a storage building of sufficient size to allow for drive through truck access. All ash trucks will be loaded within the building. A dust collection ene-andvrl j:\86458001.000\06local\projdes.doo96\jconnoll:I 1 system will be installed in this building and a new enclosed conveyor gallery will be constructed to convey ash and metals from the plant to the ash/metals storage building. Bottom ash will be handled in the same way it is currently handled. Oversized materials will continue to be separated by the grizzly/scralper and will be stored in a new building prior to shipment off-site for recycling. Flyash and scrubber residue collected by the new air emissions control equipment (the SDA/FF) will be directed by enclosed conveyors to the ash conditioning building. The ash conditioning building will be refurbished and the conditioning system will be modified as necessary to accommodate the new conveyors and upgraded conditioners. Bottom ash will be combined with flyash/scrubber residue and will be conveyed in enclosed conveyors to a storage bay in the ash/metals storage building. The storage bay will be sufficiently sized for ash storage and active truck loading. The stormwater management system will also be modified to allow for the collection, storage and reuse of washdown water and stormwater collected from the new SDA, lime preparation and fabric filter areas. The water will be collected in a system of u -drains and sumps, stored in a new contact water storage tank and recycled primarily as slurry dilution water in the SDAs. The expanded water reuse system will include associated pumps and piping. Several other auxiliary upgrades are required to support the operation of the new emissions control equipment. These include new air compressors for the SDAs, a urea storage tank for the SNCR system, reagent storage silos for the SDAs and PACIS system, additional controls and instrumentation, and modifications or replacement of the existing induced draft fans. This emissions control project is a multi-year effort involving permitting, equipment purchase and construction. The construction will be phased to minimize disruption of solid waste disposal services for the North East Solid Waste Committee (NESWC) communities for whom the facility is operated. In order to accommodate that effort and to ensure project completion consistent with the compliance deadline mandated by federal law, the design and permitting processes are being initiated now. ene-andvrl j:\86458001.000\06local\projdes.doo96\jconnoll:1 2 a For immediate release For further information: People for the Environment Ed Meagher 978.685.1012 P. O. Bog 542, North Andover, MA 01845 Joan Kulash 978.975.8108 Planning Board Refuses to Listen To Residents' Concerns Merrimack Valley residents packed the North Andover Senior Citizen's Center on Tuesday night to protest the North Andover Planning Board's perceived rush to judgement when deciding to grant Wheelabrator, Inc. the necessary permit to retrofit its North Andover incinerator with an anti -pollution device. If the device is not installed by December 2000, the Wheelabrator incinerator will be out of compliance with the Clean Air Act of 1990, and must close. That is precisely what many residents would like to see happen. Citizen outrage centered around the Planning Board's apparent unwillingness to listen to the public's concerns regarding health and safety. Instead, the Planning Board and the Board of Health both accepted the opinion of a meteorologist hired by the town, David Minott from Alternative Resources, Inc. (ARI). Mr. Minott reported that the facility would most likely comply with the Department of Environmental Protection's (DEP) health guidelines. Many citizens take strong issue with Mr. Minott's report and wonder why the Planning Board is disregarding the testimony of physicians who testified before the Board of Health in July that even with the $40 million retrofit, the incinerator would not provide the public with an adequate margin of safety. Ed Meagher, co-chair of People for the Environment, explained that "the role of local governing boards is a powerful one if its members choose to exercise that power. Local boards are meant to defend the unique situation of the community. They are not meant to serve as rubber stamps for state agencies. Mr. Minott's report is just that --a rubber stamp of the DEP." Meagher explains that the DEP's allowable air emissions for pollutants are based on what the agency deems safe for an individual plant. They do not consider the cumulative effects of many facilities in the region. North Andover was the host community of the Greater Lawrence Sanitary District sludge incinerator for eleven -.years, and still hosts the hazardous chemical waste transfer station run by Laidlaw Environmental Services Inc. on Sutton Street. The community is presently surrounded by three incinerators within a 4 1/2 mile radius. Mr. Meagher points out that although the Lawrence incinerator recently closed and the GLSD no longer burns its sludge; the public is still living with their toxic residue. Joan Kulash, who serves as co-chair of the grass roots organization with Mr. Meagher, points out that when the DEP and Mr. Minott gave the Wheelabrator incinerator a clean bill of health, they did not mention that this incinerator has been the number one mercury emitter in Massachusetts and that the Merrimack Valley is already suffering from mercury contamination. "The retrofit will not prevent persistent pollutants such as mercury and dioxin. It will only slow down the rate that they are emitted and will assure another 20 years of toxic buildup." She believes "our local government has turned its back on its responsibility to provide a safe environment to future generations. Hopefully, governing r - officials will soon realize that local citizens are angry and will no longer sit back and watch this beautiful community be transformed into a dumping ground." Local environmental groups will continue working at the state and local level to close the Wheelabrator incinerator. p I',tv'Alm.. Ox (kil-kigC Ill!- 0111 ......... . PROPIT&LOS S ................. 5435 4- 50 943.3E ................. .................. CNN and other si.tes ....... .. . ...... S FC�T 10 N-5 Home Business Report Street Life Subscribe Free Fortune Investor Stock/Fund quotes: ...................................................... Search by: Ticker Name Smart ,"glanaging - Ask Annie Techno File . Buyer's Guide Personal Fortune Fast Lane Road Warrior Small Business Books Special Issues Fortune 500 Most Admired One Digital Day Contents Features Archive Forum p E 90. U! R C -E Free Trial Issue Send Feedback About Fortune S ERN II Q C C mm�� Ad Sections Csreer Center Conferences book Search . ........ ... htip:�Av�,Avjmfl May 25, 1998 Garbage In; Garbage Out Waste. Management used to be a ff1ajjVtj-ee. , r darling, with the kind of gmvtI)-vat.e investovs "ove. But then the growth slowed, and� Iffic. dropped, and it became a ditfei-ent h-i?jd of company. 'me, lkh'id fl -kat cooks the books. Peter Elkind WN, Wl' jI tic qpm I g T fl -IC v ofl&'dc' headquarters of Wasie -m suburb o' '04 Brook, III, betrays precious little n -idence o" vvhat, mnc.- ii- , A , I P. 41 ffic company givat. I'likAv are 915 -tiro's of 110 picl J. dawj-i t!:) pickup bef6j,-e America's trash. No mo(TeN of dic compally's tra J.0"nili 1, burg Indy garbage No ovcrsized portraits of the conipmy's co-fowiders-, 'Wayii,-° Huizeng 1 ga and Dean Buntrock, who were thefirst to fi(,YUTC QUi that loci] trash. hauling ooeratit'm oil a natioll.al scajo. be a hugely profitable business. But ou the lobby reccptionist's desk Stands a lel!lth" svmbol of what brought it all, crashing down: a small board (118playma Masts Niatiagmumt's most recent m s: c!osIi, ..tock' -'prk-Cz. ,going public iji 1.971., Waste klanagemunt bas bee o obsessed INAII its stock price—and for much of that ijme it was a bap,,,-�y obsession. In flic 1980s, Waste posijji)I-jc,cj jj Ja-s4%, growth. company, and its sbares, soared. U was \VaP (-4reeil.u' favorite garbage hauler. But thm canis ibc 1990s. an -d obsession became its curse. 4,7 May 25, 1998 Garbage In; Garbage Out Waste. Management used to be a ff1ajjVtj-ee. , r darling, with the kind of gmvtI)-vat.e investovs "ove. But then the growth slowed, and� Iffic. dropped, and it became a ditfei-ent h-i?jd of company. 'me, lkh'id fl -kat cooks the books. Peter Elkind WN, Wl' jI tic qpm I g T fl -IC v ofl&'dc' headquarters of Wasie -m suburb o' '04 Brook, III, betrays precious little n -idence o" vvhat, mnc.- ii- , A , I P. 41 ffic company givat. I'likAv are 915 -tiro's of 110 picl J. dawj-i t!:) pickup bef6j,-e America's trash. No mo(TeN of dic compally's tra J.0"nili 1, burg Indy garbage No ovcrsized portraits of the conipmy's co-fowiders-, 'Wayii,-° Huizeng 1 ga and Dean Buntrock, who were thefirst to fi(,YUTC QUi that loci] trash. hauling ooeratit'm oil a natioll.al scajo. be a hugely profitable business. But ou the lobby reccptionist's desk Stands a lel!lth" svmbol of what brought it all, crashing down: a small board (118playma Masts Niatiagmumt's most recent m s: c!osIi, ..tock' -'prk-Cz. ,going public iji 1.971., Waste klanagemunt bas bee o obsessed INAII its stock price—and for much of that ijme it was a bap,,,-�y obsession. In flic 1980s, Waste posijji)I-jc,cj jj Ja-s4%, growth. company, and its sbares, soared. U was \VaP (-4reeil.u' favorite garbage hauler. But thm canis ibc 1990s. an -d obsession became its curse. I o.0 10 ;'o117p7e: 5.25.98 Garbage 117; GaUage i311[ • `7l.tj?. C4?'�.j�ili�7�!1� ;1'.CUI7}i':;,11,1!r I � Gic� �,�.�.�111�1, Early this year Waste Mailaryenieilt °�trli reel frac iil� estlnellt colilillunity by announcing a .malnlnoth Pi'OL'x charge of ,Si. 54 billion. In effect; that was the payment for the conipanvis accumulated sins during the decade. The primary vita, the company revealed, was having used illlproper7 clvc:rl� rt�gic,sslve'. accounting tactics in at) effort to boost sa«Ni.ng earnings. This had been going on for so long that tllc conipaiiy lipid to restac,... earnings back to 1992. Not surprlsinoy, the S -EC, bep-lt an a investigation into both Waste I'v anag.int Int x1d it. 1.Ci1P�t:Il1i auditor, Arthur Andersen. Can March 1 s carne the denoueinei t: Waste Management agreed to be taken over bi a infacl:l rival, USA waste Services, in a S1.3.3 billio i. i :n•huic:.>.__.. ay G%ubage Li; Garbage Out �tl,tlr:; tr:;'lZ'.i)8ttltltl(!CS, I11 �fdUII1C`I'I' �;' it r'iC' i ,,•; ill.11d But it Was Dever a Wo act. 111 :aCt, o:i t11: U1'�'litt:.atli)i�t1t Glti:at Iluizenga, the company president. plitved second banitna !ct Buntrock, who served as chairman and CI::c'. 1: IC inc/- insurance salesman utterly lacidng ills co-Ii)uul.der'„ ({vrullll►sll►, Buntrock was nonetheless inslrumc lit.'al itt the '\Va"tt Nlanagcniont culture --proud to the poiat ().1 it�i)"iiti c :31?(i addicted to growth --as well as its core strW'_.. v. Irl ltl company really went into overdrie-4 ol:1y altc:l. lluizen; a h;f! ill 1984. That year Waste hit $1.:3 billion in revenues. Six nears later revenues stood at more than S6 bi1.lw. , nci ills ll) e quadrupled. . Tllat, of couz:5c, is tllc kilos of g:'ow°tl; i-Vall :;tr; � t: lo;:(„ J ir•-•.,;� ;( rewards, As earnings chinbed, so did the 'stocl; pl'?Ce. 11"PIQ troln $3.41 ft: 1984 (split -adjusted, of courts ) to a I�cal: of S16.63 ill 1992. The stock enjoyed a .9owth-cornpany multiple, its YiE breal,irlg 1.1110 the m.id-30s. Ttivestlllew batllxrs drooj(rd o',- ' 11)ca prospect of Waste Managcnment's I)llsi1li.ss--tllc.%oi:)1p811i� v,as lll doi? upwards of 100 acquisitions a year--wlllll Sv,),( . glowing' buy reconlinendatlons. "Wa' �1a1)a--lacllt Intel today." recalls CIBC Uppenlleinier ana.ii•St Dow,, :kugenthalcr: "It was the gilahty pyowth. Yet even as 1t was bashing4�1i1n, itS Stitt?.).; «Vast+~ .re alizecl 11 �: oa11dwf keep glowing the way it had. It PWIS Sty big that It couldi i) ly enough smaller companies to keep 111) th.e fi'e.tictic 1)ace, .tin dj early 1990s, Waste needed to deal cvhh. a 11CW p alit;-: It be a grotxrtll company anymore. Or could it? 'Tor 20 years, we had doubic-digii. iu►4iil " Bunlroch told FORIUNE, in his Jirsl i.rllcr0(-, •v sinec [lie accounting problems came to light. ' 1'11e .1)) 1r1:C:iislu; c and shareholders and cvcn. your mvn ernployce-s e..xpoct you to continue that. You expect it yourseL: My job sva. Ic) hovc a strategy that allowed it to continue. Io gyovw." His strategy was to diversify. Stardng in (lic late. i980s i�ttiata`t_ ,•1i moved Waste hea-0h, into hazardous -waste. distposzat 1.0 water treatment, even lawn care. \d lis c:,pal:Ltcd 3xtassi� l overseas. Then, pleased with what lie had done. Buntroci, recast the company as a portfolio of glob;ti F:nr.ii'onartc:ntai cert ic;t;, businesses, complete With a sety new na31iG: i itI Technologies. Unfortunately; Buntrock's strategy bailed on virt:uiativ evsry count. 'fhe company overpaid for acqui4-itiotls ,:I)I' 1aJ; the hazardous -waste Business declined; recvch g prc)(It (i iutt5t returns. And while the new �VNEK cert abily gc►t bia-.-"",ilea i►=,�,�_1:; of more than $16 billion and soille '3,00() exactly fast-growing. t_).t1. the conti-al `, llie ht�crCl' `it o()t, the c;1stc.: r it became for smaller, nimbler cnllipctliol'S 3,oflu (jarbage In: GmImee Cml Wild custolners ill. the hi- lly profitable Ci. -M-0 -(rasl'I Yet 11-untrock reibsed to change course. 'Nilgel \Ah!soii. i7;-hte) johicd Waste in 1993 as -finance eHreclor fOr inter.Ftaninnal operations., though[ there rnipjit be artotber sirawgv loo' do; company, rovolOng around touL>b C.oq. C.MfWq), ­111cf-cl ruthIcssly idgoII ,rcsslvo cost cul[Qr allyw6�1-C ii., O'n.-) ; I usiiwss." ]!,2, says. Afft'r writing a nletno to thal et I - e -cf. \V.ihon SNoxs to London dufniig a farad vacation on Clic. Llan& thail Buntrock lieutenants, who had flown D'J: from co.111pilly headquarters in, OaI: Brook, could tear apart his Wilson. left flit coroptaii), ail Gr i-,v(1.1;vays. Willi Ilic strategy failing, Bunfi-ock Ixga., Street. Instead of lowering expectations, he (-.01-161111ed to prolniso turbocharged earning -1 --then failed to de1P.7er. in 1 company prqJQcted $10 billion in re.ventics but produccal.just $9.1 billion. Profils fell by altilost 50(1,6, wlhil,- flhv, "toct., fo _ '$23. And silts Buitrook refused to 1 -bat jjjiq�S h4li changed. 'M -7c are a grcmth corllpan'11' he profeskd [(,) angrl, investors at the 1994 annual. nieclin,) As the situation greNA,, increasin - 11 _Wy dcsper, !t,:, so did response. It began booking ordinar.v lo5l'11e8 as 0111L:_1111_K cliaroes To boost stock valnes, it bid so up full' pl-I'Mi0y subsidiark;s, but the iic,,,v struclure. N,Yasso liad {O b,, unwound a few years lamer. Butitrock and his Nklastc.,. President Phil Rooney, also ordered the -nc-Ci- f aafbage trucks and steel trash containers kepi wi ibe streets longer. As Bt.jnfrocl, coricedes today (Pooney Jeoined to C-011ul.-telit), t1lis WiLs Hil-elided totboost cw1iiiP, ilii; capital budget. But it v\.as feasibly sborl,sigh(Cd bC,',)UsC it llward the company Was forced to spCild n0io.ato L;Cj-) 111-; - jo--.-, I,, trucks on the road. -Maintenanec costs.,. fioarcd. Onc, lornICT, di dsional controller recalls having to ss,.,ap equiprneni with her counter -Parts. likel"Ada.l. CYRV-111v 1.11 "We were trading tructs aff m.-cr cx says. "If someone needed 1.5 cojilahic,.rs, I'd .A ted dk�:, 15 containers tbr'em, and tbey"d give tn,, a tnich. VVC-'d tovil i (ror.k, across three state�s to g�.t it, so we �ould foi. And finally, is we now all know, the conipany bcg"r; ron!".; .( 111, - books. Here's how it worked. Standa.i-d Mduoy pi-auijixis Io depreciate --or write do",n--the cost oftruc];.s- (about S] 50.000 apiece) over eight to ten years, witli each year's &1,woclalioll expense reducing the bottom line. But in the early 1990�,., at Rooney's direction and with Buntrock's assent, ' k7 astc began stretehing the depreciation schedules b ' y two to ibui-Year-s-. 4 111111.: lowored the company's annual depredation boostwo earnings. Waste also reduced by as tnucli as K-3.00'. illi; siarij,inj depreciation amount on each truch, dai.ming dial shill a�-. value" --ail amount it A.'Vould rccox,ea' 4of7U i;i bap' In: Garbage Out .o' ! .o r.'.... -.Ifld'III'�i;, Standard industry practice is to Blain) no salvage vatize. ()r) 1 North Avneiiean Lieut of icarl,Y 20,000 't.el,,icics, this manipulation added up. The company engaged in similar with its l .5 rni!li0xt steel. dum )seers. s t 1 Write l.i > i:{1 t r: i' 1.� 'i�:(ial 1 vc, r!s I: -t« ::+�. n (-, • i 20 years -42 is standard --and C1016.11CC} salvai-) It:aluic ilii 61,4jli a", well, again contrary- to industry practice, in sc)rrie c•asr:5 manaement kep'. t;vo sets of books, i.nlpoC iiiing th!,e depreciation schedules at headquarters on assets that werc -valued properly in the fieldivere . "They 7iere ay out of th,,;. i11.{l',T,,ti� t grill' says I.T S/A Waste CF0 hail eff kites. "To o b 1Leeof31'l tiVO svl1 l 0-i books is just incredible. It scares the ll.oll olzt the du;npstcrs and ilio trucks, the aC;(;o i.11ti;l pretax protits by $11.6 tni}lion. But that wasn't all. Waste Marialernl;;Il.t oNvits 'l ian(ii:ilis. aA uI whicl) require millions of dollars in 111)_-:f not Costs tc? Iti i� ter,, land, will the per1111ts, and develop. Tlxn. ax'► ;1' a 1.1nt}li;l i; rtulliotls more must be spent: federal re :tal:itions tc i:tllit @r'.:,,tin{ the site kind lI onitoring for coiltaillil:lation for 30 yC: rs. '1111C accounting treatment of these costs is deterinftwd by the pro0,0)_1C life of the landfill. Obviously, eZl)<a sioil. miil;es <! lir).{1fil.l considerably nlore profitable by extending its use'i'::ii isle; and spreading the capital cost-.-cl)a1'oC{l C)11 the l,00l s as caI) t lize{1 interest and dcprcc ation..-.over a aluch; uz' l,cl-.,- 1. So what did Waste TkIanag€meat do? Naturally, i+ '(Aail cd that landfill expansions were likely --even when they ero'eivn`i. i�(K U.S Live Oak landfill in Atlanta, for c anwle, tho ct.ttnr, ln�''s 1,in��l;s counted on a hutG hail passed a law barring any expansion! Thus was stir; site•'s v Clue inflated by S30 million. Overall, charge;; for : u1 d illltccl 1.: , ill. prgjects totaled more than $700 million. And on. and on. Recychlig, facilities, hazardous-v\-astc plants, operations --all were inasslvely ove rvaluud. ail iil'W.1 l(lV nil i,!hti:iliti.t the balance sheet. 'Taken togetllea'. elle 2.1111r1itt !.s lmoste.t} reported earnings by $110 .million Ol' 11i0fe CaC {'i ,'Oar. i I,-" ii1 t, Duntrock: 1'o my knowledge, there ii'as proper ic:counfi)ilq_ used on all our financial transactions.") But here's the pathetic part: It didn't ori . F.; mitis sc reirmim(1 volatile at best, aad the company's rJat.10J1s VVid) VVIkil} soured. Back in 1911. Paul ItialiQllt, all industly at)alvst witli NatWest, had presciently placed a sell rating C)ll lite c•o;r 'yo- "I? was like putting a sell on Microsoft." l)�. sags noN . 'IE ver box N; hated me." But as Waste continued to disappoint, ind the steel,_ drifted into the nu{1-20s, {)tl1Gi' iltliil* Mis tulticti til. �t)i:)il 'gin piste Management was a Wall Street pariah. Bohol -o fislh;s rs al)d sl)ortsellers moved in. And so did a troublesome --hind of investor. a V .Imlpjml, I imvSlor group. �Uong Vvith he l,' 1vionks, sllC lnvcsts Ill 6w worsi-vm! copip"'ITIles, in agitatc. foi, -Jianp 1, a gc—a vs thIromh the pv",Ss. lcj), 'I; 1.1 iS S100 nu," w'. IOC 41", 11-t.a. 1""d I.- nifflion when 14 Mist taraetecl Wasic aocniellf. Yel lilt., J -Di P Ll! -eniatkablv. 1. )i '11' W. i.lisi tcl went after --including Aimorican Ejxpir�,sodik aml Nlinow fimst tooh. ai:li at 'Waste 19, 1-.t. without the disclosure of accountinly, probicul—ml-l! more HNIII, I,V.NTo Veal's -awav—'Waste ivas a T.-TIM's arrogant copany that had lst its N;a4w.d Iv,TOSQ 6t%jC1 \ 0 1 &d going nowhere. Minow a Nva-\ s lilce,� - " tl 1' hv -il, board and Vv'aste's offered an eas-y tar --t. 11, or former company executry.s, p1uc-J1vntj-ocJK`.s.- f1ers-cm;'11 attorney. Three of the outside .iii' -colo -i -S -or tfic ral-1--l'eccived tees 01, co llifibutious ftom dt�, comp.,olv. "J'i such a sound bi1c."'N'Tinow says novv: ofthe 1-%o -0 is or. file. payroll.' -X-I By 1996, iioi% had cn]-isted a 11 17 - whose hed-e fi.Inds I)OL). "It S1 bilfion ca' "t" demandirig thQ, appoinliv el -11 ct 'issc -Lop C-:� pushi.jig -fk)i- Ilic. saic. of f Wilc-01V - As. had also become targets: J -.FNS .-vam.Q.(J ifL I 11f chairman and Cl --O Jamca Koeni- fia-ed. (1, tm(g reached for connuent. Soros' operalrives dennanded thlit who had just stpped in as (--IIEObc! hil.xk "itiadequatc." Ai,,d �vilhln a year and half, after' th-c -usulal voi ,,d. k-)& meetings and threats of proxy fights, J- 1"T'J.; alid ..J.)TYN 7 to have %von just about Il. started adding independent directors. includ4IL) Sic-ve. 1'.61-11CF. z1. folimer Clmsler vice chiii-man, wbo bid fiisbioned a i � , . career putting out fires at deeplytro-ablcd j., k;s A begun it sizable includitm 3.000 Jaycd-"-', I S2.5 biflioi.,. ki and t1.e rl+itUrai-ion U. a,;; uid Managemem name. Koetiie- had beenreassipm6i. Av.d in mid--Febrtjai, 1997, Rooney qtiit, 11[',(1C!j11SJ lJoll CEO. Nfiller, floe jwvti boat -%l lilt dic scat6k 1',,)i ,:t J, CEO. In Ails the,conipany had its savior- T*Zotlmldl% �I ' l - 'Z� the. No. 2 man at `)print. 01- Si) .. Ile lasted less than four months. Gra liced. I I I - ;I I - all A .I i Vni - ( i generous pay a (ja.11tee� tbal �N cover up to $08 Illillioll ill appl-cclatioa (A" Ilii; �Spll,.111 had to grve. :gyp-- l_ nonetheless departed abrvIF,,!.Iv October, returning oil '41 Sprint corporate ' I c 1, t o, I (X'_ D. out of Bete lhi�% afternoon." Leivlay told ivlllhv %vilt."n 'Ite L)avc Ibe ntnvs.) At tlit, time- it al.i seenvil vQIr.y illy LoNlay has jicv,.;r spokc:ii publicly abolii VVI),V lic, Mtb such haste. But in. retrospect, it doesn't seem all that: mystefiolls. LeMay had stumbled onto the accounting problems. 01:1 Oct. 10, lie an.1-iounced that. Wastc, X,.Nrouldn't be able to ineet. Wall 74 Street expectations for the, -AM quarler--agal.n. But he also warned, ov)linously, that there vvel%_,. ii,,.S.!_�,.'­> i1xi ii ? C. require a special chaq-,.c. I-T.c h:11 a fcn,\z ddy�.,� iiii(l, liik, rosults were ro.leawd. ,l 11C saine Jay W,I 011i 1. 1 The stock plur,,­ ,,,Q,)0 ,d — '.0 0. From that point on, it was only a nvlvcl� of Jnic 11--folv I'llc rc:S( of the world found out. Unwifl-ina, to tuirti aslain to v\rbo was still on the board (but vvould leave by year's iid), flo., directors named Miller acting and 11-1.C). Jer qw:ckly amiounce, 'yet another (the conipany's second ilia( year alone) and lauticlic.,d scarc.11 for a new CEO (it had already bad 1 --bur ;siilci: JIJII)11111'Y). I l!]'( most importaw illino lic did was to 1Viii diggiiig.'I.rao tl)z financial pi.-oblenis. Ffe tapped a nevv outsklc dlvectov to b0p him: fornier SEC chail-mxi Rod I M ,;, "It was appa.ren.t that wc had a real. th,,- 1 !..V c chaimikki) of the audit co -i kin littev'. -Miller inuilediatelAv, hired anew actli)q. CFT) incl knviii&7,1 .i frc,s]-i audit ItCam groin i1%rthurAiidcv4;z-i-i, lkT)w)I,;M;iC, accountants. But of course Andersen's ovvn condiic( vvas also issue­xvli�, hadn't it stopped the�>ccul 1:1211 2RIC 11.S. 01, al 1_-apl 1-1 zD called attention to them? Although Andersen denies cutpablifiv- Hills has -.no reluctaticr. pointino to it as pall �4` rb��- "'I SEC is goh)g to fund that thcy didn't d1o, it"Wii- Job,;." he iays blutitlh,. (Responds Matthew P. (ff)nt*nsz. ail partner: "We take exception to 1 -1 4 finger pointing.") Ultinixite!-Y. Ernst & Young was a)s(,) brougAii in to look ovKr tho books. After four months the company ',.III 17�,.iled the lvs,Iflts of I.I(Iticlit and they were grivo indcod: api-cura 'i '. bi'Ilion--vvhicb even Duntrocli calis (11-1:kr la`;. 11 comes to $2.9 billion.) The 11997 Ific vxj.:: Lx 10 -1 'NOuI14 5,*25.98.Gwba�c In; Garbage Clul. w) �:' 1 ".) '. year in the company's histoiT. Nvifl i a loss of a L 18 bitIt-JOI), Reported profits of $192 iniflioii 1996 Ifocanic a loss of $39 nAhon. Another $904 inUtion it) net incom"o, 4vas eras..t-d for prior years. 'Nearly three-quar-tern of'sharcholdcrs' -sonc. billion—vanished overnight. I don't think diel-c's c otnparable to il.", Says T. -Tills. hi the wake of the ainnouncemuvit7 a, nci'; qiicsiioi,; lit(.--!�iw Waste Management. The quer on lmd onec be Can A!"n Management get back on the fist -growth tracki VAY it was: (Ni Waste surVIT"Ve. as an independent vo-tnpatiy? out to be ho. l'or years Bunisock lmdaNq budy tweed a6do all oNvitures. But now he was a marginal rR,als Could N- done withou-1: him.. S dusl3crau.; it-, boo�4.1 ;Ii,: -i-iiCA iri Florida with Wayne I-luizen, a, where. according U, a 11 unenp camp confidant, the former "A'.afAe tbunder-akcalv VA in th: trash business with Republic Indusubs-A ioil , vcv.iteriaincd 61c, Idea of taping a ran it his old conipally. Q-Juizenga droHned to coumnent) A more serious suitor vvx; USc', 7,-a6lLwj rwi lb,,- ", I.Jug!;., ambitious executive named Jbbxi fKay in the spoce of jug 10v years, Drury, 53, had built his littic HousRx-Irbascd the industty's third largest. Drury; 61 fao� vvas itwwn�,,, 61osi� Buntrock had dismissed in the past. After T..e"vray J?JIIL USA. V7aste semody to a inlMy ir; a 11.i� bought 1.3 million A'aste shares. I%n'TnOt "iT ASU 1"Rt R) inake a sales pitch and sent endssaries to , cv.. yu-fh to '.;1` Un." u l_? support among Waste's big ins6w6onal inve-siors. by carlyJanuary—\N-ith dw full, cxicut ofliic; io li�, soon to be ve.vealed--the Waste board vvas' ividy N-, i, 1 -)1 jr v and his toam promised they could qt.iJd.y SSOO in annual cost savings ftom. 1ho combinafip)i. After Ttic usuai headAKAhIg (Yver the numbds 1,thc ir.(oi!irling dapped the putdiase price 1)V S900 millioit). tho lvvo sides reached a deal. 1)), Me end of FeSsmy. bated to see his covnpany mcrgcd and thought the price t'ar foo privately lobbied individual Waste directors la reject the agrecinerd, but no one vas RUN, say -s, he i.,no! surprised at his company's fate; given Nk., astc.`s in.ability to SOve its own problei-r).s. "In many respeett" he sq% candhHy, "YT NO 11101-C time diall We should have bccn, gi-vc;ji." You'd think, after even,thing that's 1., !!1;-- Cu11L:ffc J' Waste Managetnewwould be wen. R) Deem saved from its ow -Ii miF cues b-;,- 1 -TSA P-1 be wrongg. As alvva�vzs at Waste kwni, III tixc- ',,� cls am appetite for sell'delusion. That much was pail-filfty of Adous wiloo Stevo IM'Oler, on 011e t:; l,., of the bi,,), minounci.-menit, aii aj)�Ijjj jj) it packed with patlicked co.q)oi-we. sta-l't to ial'K 0 art'an(yero.efli. Wasto Matiagem(�rjt 11)(NI'Iff "Y"MIJ, he clafilled. Mlle 11m bl-iSilwss vvould Management name, ind Wast? xivouffl -.do batt tho dlredor�;. "You ca.-. f-oret any notion that we xrc Mifler declared. "Hogivash! Iool,-- out am, Nvindow-and vou're aoina to ';cc burnt: it, b-ucls roffing." Dlurv, wilovvillel T- - " ve as tile I)ew Col-i"pailv's CV,10 G -u -N., I ui&,: treated tilt; Waste croxw year as its chairman), Three weeks later, at his own bc-adquamrs bic!,- u-, was less deferential. A big chunk of fiie promise(i -S801.) n)itlion M. g sa-v*to Vil s, he made clear, will cotTle out Plrool�. artCj,S OpC.j,a4:Llojj__jbUj- -4-li - V'j' t , , , Id I I entire bloated licadqu 1,300 employees—vvill be shalt down, 'IDI-kiry T.mjT),)PCs -Ul)'A three leased floors in a downtown toe ei'. ",\All a staff of 130. He has alw-,ws believed in decetan operations—and sticking to basics. "11's it simf-11a:' 1)11!jtj says, "We dodk know that weliv ceal good at a lot I)[ tbitws, Otli we're damn good at picking up garl-,age. " In this merger of unequals, there's llo qumstjou 1vlio's Collitliq oyll oil top. "There can be only om: cultur,.:," Drary lietes, blew lflv. "It's going to be our culture." And as fOr illoso traduixmri�. burgundy trucks, wbicl). Miller insisted evvryot,,I� v,!mil(".r--on6.1,)-n(.., to see "proudly rolling":? "Thc. ti-w.ks aiv. igoiitz=-t� Irv,- D--eUD"--USA Waste'st;olor, sm.s Dr -Ary, Im, I 8, 8 I b if I: [11: rb ag(: -01,11 vvi y 11 fi Oil flll�� inornit)" i,f .......... I .......... . rIJIM)ti?'lC, Q. le n c vv . ........... 'T . ......... vi:ould 11avi, Lll' 01 t.1 Q Not' ............... . .......... ... . ..................... ... ...... ............. .ta. . . . ........ ................ ...... ............ J iil. JA TeNTORICS q'I'ONY 10S and ........... ... come. So tiow it's his turn to iilake'�Va-,ie felli: 1.11ic.) a jgo,"lli companyaoain, For novo. at least. flll+ Stre--.-t it. J - bel ieve. ic;n Iradillg opcl-led., -="'S 'SO"., You'd think, after even,thing that's 1., !!1;-- Cu11L:ffc J' Waste Managetnewwould be wen. R) Deem saved from its ow -Ii miF cues b-;,- 1 -TSA P-1 be wrongg. As alvva�vzs at Waste kwni, III tixc- ',,� cls am appetite for sell'delusion. That much was pail-filfty of Adous wiloo Stevo IM'Oler, on 011e t:; l,., of the bi,,), minounci.-menit, aii aj)�Ijjj jj) it packed with patlicked co.q)oi-we. sta-l't to ial'K 0 art'an(yero.efli. Wasto Matiagem(�rjt 11)(NI'Iff "Y"MIJ, he clafilled. Mlle 11m bl-iSilwss vvould Management name, ind Wast? xivouffl -.do batt tho dlredor�;. "You ca.-. f-oret any notion that we xrc Mifler declared. "Hogivash! Iool,-- out am, Nvindow-and vou're aoina to ';cc burnt: it, b-ucls roffing." Dlurv, wilovvillel T- - " ve as tile I)ew Col-i"pailv's CV,10 G -u -N., I ui&,: treated tilt; Waste croxw year as its chairman), Three weeks later, at his own bc-adquamrs bic!,- u-, was less deferential. A big chunk of fiie promise(i -S801.) n)itlion M. g sa-v*to Vil s, he made clear, will cotTle out Plrool�. artCj,S OpC.j,a4:Llojj__jbUj- -4-li - V'j' t , , , Id I I entire bloated licadqu 1,300 employees—vvill be shalt down, 'IDI-kiry T.mjT),)PCs -Ul)'A three leased floors in a downtown toe ei'. ",\All a staff of 130. He has alw-,ws believed in decetan operations—and sticking to basics. "11's it simf-11a:' 1)11!jtj says, "We dodk know that weliv ceal good at a lot I)[ tbitws, Otli we're damn good at picking up garl-,age. " In this merger of unequals, there's llo qumstjou 1vlio's Collitliq oyll oil top. "There can be only om: cultur,.:," Drary lietes, blew lflv. "It's going to be our culture." And as fOr illoso traduixmri�. burgundy trucks, wbicl). Miller insisted evvryot,,I� v,!mil(".r--on6.1,)-n(.., to see "proudly rolling":? "Thc. ti-w.ks aiv. igoiitz=-t� Irv,- D--eUD"--USA Waste'st;olor, sm.s Dr -Ary, Im, I MAY -19-1998 09:32 SHAPIRO HABER & URMY LLP 6174390134 P. 03%17 � I Ok IV URI Pf EA3 1 3ULIU WASTE COMMITTEE 530 Adantic Avenue, Boston, Massachusetts 02210 • Tel (617) 443-1303 • Fax (C7) 443-1301 November 13, 1997 James D. Dougherty Vice President Massachusetts RefuseTech Inc. 285 Holt Road North Andover, MA 01845 Re: MRI's Notice Pursuant to Section VIII of the Service Agreement Dear Mr. Dougherty: This letter is responding on behalf of NESWC and its member communities to your letter of October 13, 1997 and the Scope of Work which was received October 15, 1997 concerning MRI's proposed improvements to the North Andover facility ("Facility"). NESWC understands that you intend that letter to serve as notice, under Section VII(2) of the Service Agreements signed by the NESWC communities, concerning proposed improvements to the Facility designed to meet certain new environmental standards established by the U.S. Environmental Protection Agency ("EPA") and the Massachusetts Department of Environmental Protection ("DEP"). Under Section VII(2), the NESWC communities may object to such proposal within thirty days of receipt of written notice, and if the parties are unable to agree on any issue or issues, the matter is to be resolved by a mutually -agreed upon third party. This letter serves as NESWC's objections to MRI's proposal. NESWC reserves the right to assert additional objections as they arise in the course of the parties' discussions. As NESWC receives answers, to issues raised in this response, we reserve the right to raise additional areas of concern. Set forth below are NESWC's preliminary objections. We have organized the seventy objections by category: A. General B. Economic C. Technical 1. Requires More Information 11. Not Required 111. Lower Cost Solution Possible D. Schedule 0 Printed on post consumer racycled paper MRY-19-1998 09:33 SHAPIRO HRBER & URtMY LLP 6174390134 P.04/17 E. Financing A, GENERAL I. Prematurity of Notice MRI's notice of a required change and the scope of work, the firm price quotation, the projected completion schedule and the adjustment to the service fee formula are all premature. Final regulations relating to the Change in Law requiring the retrofit of the North Andover facility have not yet been promulgated by the Massachusetts Department of Environmental Protection. MRI should proceed with the scope of work, including the permitting process, only after final DEI' regulations have been promulgated. NESWC assumes that the scope of work complies with all local, state and federal laws in effect as of October 13, 1997, and that the scope and firm price quotation will comply with the final requirements of the SIP and DEP regulations. To the extent that MRI incurs costs, by proceeding prematurely, that are excessive or not required under final permits, NESWC will not be responsible for the payment of such costs. In addition, NESWC will not be responsible for the payment of any costs incurred by MRI to meet changes in design or construction of the retrofit necessitated by the requirements of a final permit. NESWC will be responsible only for the payment of the fair and reasonable cost of a retrofitted facility that, upon completion, is operational and meets all federal and state law requirements as of the date of commencement of operations. MRI will bear the risk of the payment of all costs incurred for a retrofitted facility that fails to meet the requirements of law. 2. Choice of Technology MRI's proposal utilizes a fabric filter technology. NESWC believes that this technology is not necessary to satisfy the applicable environmental standards, and that other technologies are available that can satisfy these standards at a substantially lower cost. Specifically, NESWC believes that a modified electrostatic precipitator ("ESP") technology would satisfy the standards at an appreciably lower cost. The federal requirements specifically allow for a modified ESP for plants where this technology already exists. 3. Extraordinary Costs As set forth below, it is clear that the firm price quoted by MRI in its proposal does not constitute a fair and reasonable price for performance of work necessary to comply with the Changes in Law. MRI's proposal includes work that is not necessary to satisfy the Changes in Law, and the price quoted is substantially higher than the cost of a retrofit that would satisfy the requirements of any Changes in Law. To the extent that MRI's proposal reflects claims for extraordinary measures and/or costs in order to satisfy the Changes in Law, it does not provide sufficient detail or specificity with which NESWC can evaluate such claims. To properly allow NESWC to evaluate the costs of the proposed retrofit, NESWC, and its engineers, will need data 2 MAY -19-1998 09:33 SHAPIRO HABER R URMY LLP 6174390134 P.05i17 regarding the construction, operation and maintenance history of the Facility, along with additional data which justifies a price over and above the fair and reasonable price and which MRI believes is necessary in order to comply with the Changes in Law. In addition, NESWC notes that MRI has provided a firm price quotation that is subject to escalation. If there is to be any escalation, NESWC and MRI must agree on any index or formula relating to'an escalator. 4. Apportionment of Costs MRI's proposal allocates 100% of all costs associated with the Project to the NESWC communities, despite the fact that Wheelabrator will ultimately capture most of the benefits as the owner of the Facility after 2005. Under Massachusetts's law, this transaction is valid only if the communities are financially responsible for only the portion of the costs of the Project that corresponds to the public benefits flowing from the Project. NESWC contends that the communities cannot pay more than 20% of all costs under Massachusetts's law, assuming the retrofit is completed, operational and passed all acceptance tests by December, 2000. To the extent MRI continues to take a contrary position, NESWC reserves the right to pursue this and other related claims in litigation. 5. Warranty/Performance Requirements and Guarantees Section VII of the Service Agreement requires MRI to perform work necessary to satisfy any Changes in Law as defined in the Service Agreement. MRI's performance is guaranteed by Wheelabrator Technologies, Inc. The parties agree that the air quality standards mandated by the state and federal Iaws and regulations when the state requirements are finalized constitute a "Change in Law" within the defined meaning of that term. The essential premise of this entire mechanism is that the work performed by MRI must satisfy, in all respects, any Change in Law. Accordingly, it is solely MRI's responsibility to bring the Facility into compliance with all legal requirements. The NESWC communities do not share any of this responsibility, and will not pay for any portion of the proposed work if the retrofit does not perform as required. To the extent MRI's proposal suggests otherwise, or attempts to shift any of this risk to the NESWC communities, it is rejected. If MRI finances the proposed work, NESWC will not participate in any financing that fails to recognize that the risk of performance rests solely with MRI and Wheelabrator. 6. Compliance with Massachusetts Procurement Statutes Similarly, NESWC reserves the right to challenge the proposal in litigation based upon its failure to comply with the applicable Massachusetts procurement laws that provide for a competitive bidding of all elements. 7. NESWC Opportunity to Participate NESWC and our advisors need to have the opportunity to participate in every key step of this process that may require NESWC to pay any portion of the relevant costs to help ensure that MRI is furnishing the retrofit at a reasonable cost. NESWC must be part of the implementation MAY -19-1998 09:34 SHAPIRO HABER & URMY LLP 6174390134 P.06i17 process that determines costs and therefore have the opportunity to object to any element that will impose additional financial burdens on the communities. NESWC's level of participation must be sufficient to permit NESWC to meaningfully evaluate your proposal and all subsequent information. This involvement was clearly specified in the proposed Amended Agreements discussed earlier this year. Specifically, NESWC proposes that at a minimum, the notice, participation and documentation requirements of the retrofit Agreement incorporated as part of the Amended Agreements dated July 9, 1997 be incorporated into the agreement between the parties under the existing Service Agreement. B. ECONOMIC S. Payment of Taxes NESWC assumes there are no sales or other taxes included in your capital estimate. If there are taxes included on any items, indicate in which categories. NESWC will purchase the item directly if we are responsible for the costs. NESWC will not be responsible for the reimbursement of any taxes on any supplies and/or equipment. 9. Legal pees NESWC will not pay any legal fees or related expert witnesses or other costs of Wheelabrator in defending your claims against NESWC or any individual community. It is unclear based on the level of information received whether your cost estimate includes any related legal costs. If so, these costs should be eliminated. 10. Clean Air Credits If the retrofit is installed, it is likely the plant will create excess nitrogen oxide (Nox) offset credits. These credits and other emission credits that may be created can be sold and the cost of the retrofit must be reduced by the calculated value of these credits. C. TECHNICAL The technical section is divided into three subcategories. The first is where MRI has not provided enough information and NESWC will need additional data to determine if the proposed work is warranted to meet the Clean Air Act requirements. The second section is where, based on the information available, the proposed change is not required. The third area is where a lower cost solution is available. 4 MAY -19-1999 09:35 SHAPIRO HABER & URMY LLP 6174390134 P.07i17 C 1. Requires More Information 11. Installation of New Induced Draft Fans NESWC is aware of no reason why the new induced draft fans are needed. MRI has not demonstrated this need. To the extent that MRI has additional information it is important that NESWC receives this in a timely manner. Without this information, NESWC objects to new fans and wants to understand why existing induced draft fans cannot be modified or reused. 12. Installation of a New CEM Data Acquisition System The installation of a new CEM data acquisition system is not required under the Change in Law. MRI has not demonstrated that the existing CEM data acquisition system can not be reused or modified for reuse. 13. Use or Auxiliary Burner Fuel MRI has not provided information to allow NESWC to compare alternative plans for auxiliary burner fuel. The use of natural gas at the site, as proposed, may not be the lowest cost means to meet the change of law requirements. NESWC will need a comparison of the operating and capital costs including transmission and distribution costs of natural gas and oil to evaluate the costs of any specific proposed modification. 14. Permitting Costs The Scope of Work refers to permit preparation work. NESWC agrees that is a valid aspect of this job. However we need a detailed timeline, budget and plan to properly evaluate the approach and the legitimacy of the costs. The information we need includes, but is not limited to, data on all personnel that may be billed to this project from EMCON, Wheelabrator Technologies or any affiliated company: Name Title Biography Responsibilities (corporate and as it relates to this project) Billing rate Estimate amount of time billed to this project Other relevant information including proposed schedule outlining each person's involvement NESWC also needs regular updates on permitting process. Until the above information is furnished, NESWC objects to the costs associated with permit preparation work. 15. Refuse Disposal Schedule MRI does not indicate how the construction site will operate to minimize disruption to continued trash deliveries. Due to what NESWC understands is a small site, how does MRI plan to store equipment and handle construction while minimizing any change in the delivery schedule? MAY -19-1999 09:36 SHAPIRO HABER & URMY LLP 6174390134 P.0Bi17 As MRI is aware, any delay in deliveries by NESWC trucks or private haulers would be an additional financial burden that is unacceptable to NESWC. How does MRI pian to minimize delay in deliveries by NESWC (or private haulers) during this period? NESWC reserves the right to seek appropriate compensation from MRI in the event of excess delays. 16. Wes-1Phix Costs There have been prior discussions between the parties that indicate that, MRI plans to install a permanent Wes-Phix installation at the facility in the near future. After this work further modifications to the plant during the retrofit may be required. NESWC requests MRI to provide sufficient information on your plans regarding Wes-Phix, including data on why the installation presently operating is not adequate and how your proposed modifications are more cost effective than the current system. In the absence of such information NESWC objects to the installation of a permanent WES-PHIX system at the Facility. 17. Refuse Composition On page 15 of 18 of the Auxiliary Burners section the Scope of Work has section 8.3.1 Refuse Composition, Approximate Ultimate Analysis. ,This chart has refuse heating value characteristics at 3800, 4700, 5200 and 5500. NESWC is unclear of the basis of this chart, the source of information and relevance to the Scope of Work. NESWC has never been informed of fully documented and independently monitored higher heating value tests in the past few years. It is important for NESWC to understand the significance of this chart and its possible relationship with this retrofit process. Without agreement on these numbers and their relevance, this information must be eliminated from the next draft. If the heating value of trash relates to the final design, NESWC also needs to understand that relationship. 18. Lack of Operating Data NESWC's engineers have indicated it is not possible to fully evaluate certain technical aspects of the Scope of Work without reviewing plant operation data. Provide operating data that will show the operating conditions and maintenance history of the plant. Copies of the control room operator and auxiliary operator daily logs and summaries of scheduled outage work and preventive maintenance program details are examples of the data that are essential to permit NES WC's engineers to properly evaluate your Scope of Work. 19. Inclusion of Operating Costs in the Capital Costs The price quotation submitted by MRI includes items that are related to operating and maintenance expenses and not design and construction expenses. These items include spare parts, supplies, chemicals and reagents. Operating and maintenance costs, if any, resulting from the Change in Law are only reimbursable as an adjustment to the Service Fee Formula. Please have the proposal revised to eliminate all operating and maintenance items that, under the current agreement shall not be included in the capital section. MRY-19-1998 09:36 SHRPIRO HRBER & URMY LLP 6174390134 P.09i17 20. Service Fee Formula Adjustment Unsubstantiated MRI has failed to substantiate their proposed adjustment to the Service Fee Formula. NESWC is responsible only for additional operating and maintenance costs, if any, that result from the Change in Law. MRT is required to substantiate the basis for any requested adjustment. This requires a detailed breakdown of all revenue and expense components. Your Ietter identified an increase of $9.68/ton for operating costs. Should NESWC assume this is a typo and the number is $7.68 as previously proposed by MRI? Whatever the number is anticipated to be, NESWC will require detailed breakdown and actual invoices prior to agreement that there are any additional expenses. If there are any MRI personnel included in the proposed adjustment to the Service Fee, NESWC will need to see a listing of all personnel currently at the plant and a detailed explanation of why additional staff is required. It is our understanding that approximately 50 full time staff work at the North Andover plant. The NESWC communities, under the terms of the existing Service Agreement, already pay for those staff. If MRI plans to add personnel please provide sufficient detail including a job description, salary level and explanation why this person is specifically required to meet the Change in Law requirements and why existing personnel will be unable to meet these responsibilities. 21. Quality Assurance There are several places where the Scope of Work, under a Quality Assurance section, states, "All equipment specified is subject to surveillance and test by the Owner or Engineer." Owner or Engineer terms are not defined in the Scope and it is not clear if Wheelabrator, NESWC or another party is referred to in these references. How Wheelabrator establishes its quality assurance process among the subcontractors is between Wheelabrator and the subcontractors. NESWC has no responsibility for assuring proper quality or for paying any costs associated with problems arising from lack of quality, Wheelabrator's responsibility for quality assurance must be clear and in writing to the satisfaction of NESWC. C IL Not Required 22. Installation of Fabric Filter Eaghouses Removal of the existing ESP's and existing ESP and economizer fly ash transfer screw conveyors 'and installation of fabric filter baghouses are not required under the Change in Law, Compliance with the Change in Law can be achieved more cost effectively by reusing the existing electrostatic precipitators (ESPs) and fly ash screw conveyors. 23. Installation of a Dilution Water Tank The installation of a dilution water tank is not required under the Change in Law. t,//Compliance with the Change in Law can be achieved more cost effectively without a dilution water tank. —.1— .,a , I -a -a... -r . amu, l I 24. Enclosure of the Areas Beneath the SDAs and Fabric Filters Enclosure of the areas beneath the SDAs and fabric filters is not required under the Change in Law. 25. Installation of a Standby Carbon Feeder and Conveying System The installation'of a standby carbon feeder and conveying system for the, mercury control system is not required under the Change in Law. Compliance with the Change in Law can be achieved by maintaining a readily available supply of spare parts. 26. Removal of the Existing Wastewater Clarifier The existing wastewater clarifier is unaffected by the Change in Law. Therefore, removal of this clarifier is not required. 27. Installation of a Wastewater Storage Tank and Recycle System The current handling, collection and disposal of plant wastewater is unaffected by the Change in Law, Therefore, installation of a wastewater storage tank and recycle system is not required. 28. Removal of the Existing Lime Storage Silo Between the Boiler Outlet Ducts The existing Iime storage silo between the boiler outlet ducts is unaffected by the Change in Law. Therefore, removal of this silo is not required. 9. Removal and Replacement of the Existing Chlorine Building The existing chlorine building is unaffected by the Change in Law. Therefore, removal and replacement of this building is not required. 30. Removal and Replacement of the Existing Boiler Superheater Screw Conveyors and Chutes The existing boiler superheater screw conveyors and chutes are unaffected by the Change in Law. Therefore, removal and replacement of these items is not required. 31. Modification of the Existing Yard Transfer Vibrating Conveyor The existing yard transfer vibrating conveyor is unaffected by the Change in Law. Therefore, modification of this conveyor is not required. MAY -19-1998 09:38 SHAPIRO HRBER & URMY LLP 51743909.34 P.11i17 32. Modification of the Existing Vibrating Transfer Screen The existing vibrating transfer screen is unaffected by the Change in Law. Therefore, modification of this conveyor is not required. 33. Removal and Replacement of the Existing Fine Metals Belt Conveyor The existing fine metals belt conveyor is unaffected by the Change in Law. Therefore, removal and replacement of this conveyor is not required. 34. Removal and Replacement of the Existing Combined Ash Belt Conveyor The existing combined ash belt conveyor is unaffected by the Change in Law. Therefore, removal and replacement of this conveyor is not required. 35. Relocation of the Existing Electromagnet The existing electromagnet is unaffected by the Change in Law. Therefore, relocation of this magnet is not required. 36. Relocation and Replacement of the Existing Ash Conditioning Equipment The existing ash conditioning equipment is unaffected by the Change in Law. Therefore, Iocation and replacement of this equipment is not required. 37. Removal and Replacement of the Existing Fly Ash Storage Bin The existing fly ash storage bin is unaffected by the Change in Law. Therefore, removal and replacement of this bin is not required. 38. Removal and Replacement of the Existing CEM Sample Lines and Conditioning units The existing CEM sample lines and conditioning units are unaffected by the Change in Law. Therefore, removal and replacement of this equipment is not required. 39. Relocation of the Existing Opacity Monitors ' The existing opacity monitors are unaffected by the Change in Law. Therefore, relocation of these monitors is not required. 40. Modifications to the Existing Ash Conditioning Building The existing ash conditioning building is unaffected by the Change in Law. Therefore, modification of this building is not required. 41. Landscaping The existing landscaping is unaffected by the Change in Law. Therefore, any provisions for new landscaping are not required. 42. Removal of ESP's As previously indicated, NESWC believes that the existing ESP's do not need to be demolished to satisfy the applicable environmental standards. However if it is determined to utilize a fabric filter technology, NESWC believes the existing ESPs should be abandoned in place. Removal, demolition and disposal is not required to meet Change in Law requirements. 43. Installation of Air Dryers for the SDA Air Operation of the SDA does not require the installation of a new air dryer. C III. Lower Cost Solution Possible 44, Residue Storage Building The proposed size of the residue storage building is not required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively with a smaller residue storage building size. 45. Rejects Building Size The proposed size of the rejects building is not required under the Change in Law. /compliance with the Change in Law can be achieved more cost effectively with a smaller rejects building size. 46. Installation of a Separate Lithe Preparation Building The installation of a separate lime preparation building is not required under the Change in Law, Compliance with the Change in Law can be achieved more cost effectively by installing a common lime storage silo with integral slakers and lime slurry storage tank. 47. Installation of Two Lime Storage Silos The installation of two lime storage silos is not required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively by installing one silo. 48. Installation of Four Lime Slurry Pumps The installation of four lime slurry pumps is not required under the Change in Law. 10 MAY -19-1999 09:39 SHAPIRO HABER & URMY LLP 6174390134 P.13/17 Compliance with the Change in Law can be achieved more cost effectively with three pumps, the third serving as a common spare. 49. Installation of Four Urea Metering and Four Urea Dilution Water Booster Pumps The installation of four urea metering pumps and four urea dilution water boaster pumps is not required under the -Change in Law. Compliance with the Change in Law can be achieved more cost effectively with three pumps for each service, the third serving as a common spare. 50. Installation of Drag Chain Conveyors. The installation of drag chain conveyors is not, required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively with screw conveyors. 51. Installation of Live Bottom Discharges on the SDA Ash Hoppers The installation of lave bottom discharges on the Spray Dryer Absorber (SDA) ash hoppers are not required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively with vibrators. 52. October Meeting with DEF Regarding Permitting On October 22, 1997 MRI held a meeting with DEP, EMCON, (your permitting consultant) and NESWC representatives, It is my understanding there were eight people from Wheelabrator Technologies, MRI, Wheelabrator Environmental Systems and other affiliated companies. We wonder why eight people are required at a meeting, in addition to your permitting consultant? NESWC objects to overstaffing the group responsible for permitting and will not pay for extraneous and unnecessary personnel with respect to this or any other task. 53. Installation of Stair Towers to Each SDA Penthouse The installation of stair towers to each SDA penthouse is not required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively by accessing the penthouse area directly from the upper level of the boiler. building. 54. Installation of Double Dump 'halves on the SDA, and Fabric Filter Ash Hoppers The installation of double dump valves on the SDA and fabric filter ash hoppers is not required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively with rotary valves. 11 MRY-19-1998 09:40 SHRPIRO HRBER & URMY LLH bl(4.)761.34 r.14i1 55. Enclosure of the Areas Beneath the Fine Metals and Combined Ash Belt Conveyors Enclosure of the areas beneath the fine metals and combined ash belt conveyors is not required under the Change in Law. Compliance with the Change in Law can be achieved more cost effectively by enclosing the underside of the conveyors only. 56. Installation of a Glycol Cooling System for the New Air Compressors The installation of a glycol cooling system for the new air compressors is not required under the Change in Law. MRI has not demonstrated that the existing plant closed cooling water system could not be used for this purpose. 57 Modifications to the Existing Boiler Building Only minor modifications are required to the existing boiler building for purposes of providing access to the SDA penthouses. Any further modifications to this building are not required by the Change in Law. 58. Installation of HVAC Systems for the Ash Conditioning Building The existing fly ash conditioning building is unaffected by the Change in Law. Therefore, installation of HVAC systems for this building in not required. 59. Premium Craft Labor Implementation of the minimum modifications necessary to meet the required Change in Law does not require the use of premium craft labor. 60. Design Operating Temperature Range The original Facility design limit was 530 F. The use of a system design operating temperature range up to 600 F is significantly higher than standard practice and results in additional project costs, which NESWC will not pay. The need for a higher design operating temperature limit is related to deficiencies in the original boiler design, including, without limitation, insufficient heat transfer surface. These deficiencies result in elevated economizer outlet temperatures. 61. Proposal includes Modifications and Associated Costs Related to Design Flaws NESWC objects to the Proposal to the extent that any of its cost components are associated with, or necessary because of, any design or construction flaws. It is NESWC's position that the existing Facility contains numerous design and/or construction flaws. The proposal includes costs that may be solely due to such existing flaws. The NESWC communities are not responsible for such costs. 12 MAY -19-1998 09:40 SHAPIRO HABER & URMY, LLP 6174390134 P.15i17 61 Retrofit To Meet Required Laws NESWC will require positive affirmation from MRI that the fixed price includes all costs related to design, construction, shakedown and'testing of a Facility that will meet all local, state and federal requirements imposed on it, as of October 13, 1997 and the anticipated SEP requirements. This includes, but is not limited to including compliance with the "Emission Guidelines", and "Maximum Achievable Control Technology (MACT) Rules" as described by the applicable provisions of the following: Clean Air Act Amendments of 1990, and the following related regulations: "Emission Guidelines for Existing Sources and Standards of Performance for New Stationary Sources: Municipal Waste Combustors" promulgated by the United States Environmental Protection Agency (USEPA) on December. 19, 1995 and codified in 40 CFR Part 60, Subparts Cb and Eb, respectively "Amended Emission Guidelines for Existing Sources and Standards of Performance for New Stationary Sources: Large Municipal Waste Combustion Units" promulgated by the USEPA on August 25, 1997 and codified at 40 CFR Part 60, Subparts Cb and Eb, respectively. D. SCHEDULE 63. General Schedule The Wheelabrator Scope of Work included a proposed Schedule (Section 4). NESWC and its advisors believe this schedule is unnecessarily elongated and adds significant costs to the construction and financing. This schedule does not serve as a realistic basis for the execution of this work in a cost effective manner. We believe that the construction can be performed in a shorter timeframe than you have indicated without negatively impacting project costs. It is important that this schedule be changed in several ways including, but not limited to, the points noted below. 64. Permits Issued (12/31197) It is inconceivable that all required Permits will be issued by the end of the current calendar year. In fact, NESWC does not understand how MR1 can even apply for all permits within this /time period. There will be several unknowns, including the status of the DEP State Implementation Plan, at the end of the year. The expected issuance of permits in 1998 will likely delay many elements of the schedule. NESWC-requests that a more realistic project schedule be submitted for review. 13 MRY-19-1998 09:41 SHAPIRO HRBER & URMY LLP 6174390134 P.16i17 65. Notice to Proceed (2112/98) NESWC does not understand how a Notice to Proceed can be issued in February 1998. This is impractical, if not legally impossible, based on the information provided. This date is not realistic for purposes of calculating the escalation of costs or for other planning purposes. 66. Compliance Deadline (1/02101) The Proposed Schedule indicates the Compliance Deadline is January 2, 2001. NESWC understands this is not correct. The compliance deadline is December 19, 20M. It is important that dates reflect the applicable legal regulatory requirements. 67. Timeline In previous discussion between MRI and NESWC, it had been our understanding that the construction was expected to be an 18 month process. The noted timeline is closer to a two-year (24 month) period. If NESWC has any financial obligation for interest costs, inflation, or any other factors that relate to the timeline, NESWC is concerned about the proposed timeline. This timeline needs to reflect ways to assure the lowest costs. E. FINANCING 68. Arrange Most Advantageous Financing Any financing will be structured in a manner consistent with Section 7.4 of the Service Agreement, which provides for MRI to "use it best efforts to arrange for the advantageous financing thereof." Consistent with the provisions of this section, NESWC anticipates that Additional Bonds will be used to finance the project, and, if Additional Bonds are not available, that MRY will self - finance the Retrofit, with payment calculated as described in the last paragraph of Section 7.4. NESWC requests a plan from MRI regarding proposed financing plans. 69. Senior Underwriter The financing cost figures utilized in your letter of October 13th represent estimates only, and actual costs for each of these items shall be the basis for the calculations described in Section 7.4. MRI has an affirmative obligation to minimize these costs. As part of meeting that requirement, NESWC requires that NESWC designate the senior underwriter and obviously have approval rights as to the final pricing of the bonds. 70. Debt Service Reserve Funds All Debt Service Reserve Fund moneys (including interest thereupon) shall be for the benefit of the Contact Communities and they shall be applied to otherwise reduce the communities' obligations under the Service Agreement. 14 ,q - MAY -19-1999 09:42 SHRPIRO HRBER & URMY LLP 6174390134 P.17/17 CONCLUSION It is clear from this letter there are many disagreements between the parties. NESWC stands ready to meet with Wheelabrator representatives at any time to seek a mutually acceptable solution to the set of issues raised in this letter or other matters regarding the existing Service Agreement. If Wheelabrator decides to utilize the third party process outlined in the Service Agreement Wheelabrator should propose what type of third party process, N sWC does not feel Wheelabrator has provided adequate details on the Scope of Work, as outlined previously, therefore we do not believe this is the appropriate time to seek a third party. NESWC specifically reserves all rights to bring any legal claims and pursue all means to defend our interests. We look forward to your response to the items discussed in this letter and in particular to receiving the additional information required, including a firm price proposal for a modified ESP to permit us to complete our evaluation of your proposal. Once NESWC receives the additional information requested, we reserve the right to provide additional continents and raise otlae lms in our defense. We remain willing to consider alternative approaches to moving forward, provided that they address the issues previously raised by NESWC and other stakeholders. Please call me if you have any questions. Sincerely, g4 L^1 Steven M, Rothstein Executive Director cc: NESWC Board of Directors NESWC legislative Delegation John Kehoe, Jr., President, Wheelabrator Technologies, Inc. Robert S. Miller, Acting CEO, Waste Management Inc. Ruth Ellen Fitch , Palmer & Dodge Robert Weimar, Camp, Dresser & McKee Nancy Winkler, Public ]Financial Management Joseph Puzio , IDR Janet Workman, Office of the Inspector General James Milkey, Office of the Attorney General IS TOTRL P.17 A GOODWIN, PROCTER & HOAR LL COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 July 17, 1998 Mr. William Sullivan, Chairman North Andover Board of Appeals 120 Main Street North Andover, MA 01845 Re: Appeal of Massachusetts REFUSETECH, Inc. From the Decision of the Building Commissioner Dear Mr. Sullivan: 2219%F83 +, BARD OF APPEA,t TELEPHONE (617) 570-1000 TELECOPIER (617) 227-8591 On behalf of Massachusetts REFUSETECH, Inc. ("MRI"), I am writing to confirm the agreement of MRI to an extension of the time period in which the Board of Appeals may file its written decision on the appeal of MRI from the decision of the Building Commissioner (as distinct from MRI's application for a variance and other zoning relief) from July 25, 1998, to August 25, 1998. Thank you for your cooperation in this matter. Sincerely yours, 4: �- �' /A 0 /'� Martin R. Healy cc. Kenneth L. Kimmell, Esq. (By Facsimile) DOCSB\558060.1 BERNSTEIN, CUSHNER & K P.C. ATTORNEYS AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) Jeffrey M. Bernstein Stacey L. Cushner Kenneth L. Kimmell Elisabeth C. Goodman Charles Harak Erin M. O'Toole Suzanne M. La Mantia Also Admitted to Practice in California Also Admitted to Practice in New York and District of Columbia VIA FIRST CLASS MAIL William Sullivan North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 RE: MRI Zoning Variance Application Dear Mr. Sullivan: July 17, 1998 D OF t,PP "ALS E-mail:bck@tiac.net Western Massachusetts Office: 20 BANK ROW, SUITE 200 PITTSFIELD, MASSACHUSETTS 01201 (413) 442-3773 Facsimile (413) 442-3774 E-mail: bckberk@bck.com Enclosed please find a draft of the Board of Appeals decision. Note that I do not have the petition number; that should be filled in on the front page. Also, please do not hesitate to contact me with any proposed changes or comments. Sincerel enneth L. K' KLK/drb Enclosure cc: Martin Healy, Esq. (w/enc.) Robert Halpin (w/enc.) I: \CLIENTS\NAN\sullivan. nan ­�:,Ycli,��.. Ap JrJ-1 S-! 998 21 SERNS TE I N? _ USHNERSK I PINELL BERNSTEIN, CUS]HNER & K NLN Ei1L P.C. ATTORNEYS AT LAW .4-2 17ID F-1. 0-T ON2 COURT STREET, SUITE 700 BOSTON, MASSACHUSEf-r5' b2108 (617) 742-43440 Facsimile (617) 742-0170 E•maihbck�tiac.net Jeffrey M. Bernstzin St-•ucv L. Custwer Kannech L. kirnma}1 Elisabeth C. Goodman ' Charles Harak Erin M. O'Toole Suzanne M- L.& Manna • Atpo AQmRtea ro Pewcca in - Caittomia • Also im`vfled to Praotloe M New Yost and Diatnlct of Coiumola CONFIDENTIAL AND PRIVILEGED ATTORNEY UZENT COMMUNICATION I!YMMORAND UM To: Robert Halpin, Board of Selectmen From: Ken Kizrmell Date: June 15, 1998 Re: MRI Retrofit Wevem Massachusetts Office: 20 BANK ROW, SUITE 200 PITTSFIELO, MASSACHUSETTS 01201 (413) 442-3773 Facsimile (413) 442.3:74 E-mail: bckberkQbck.ccm Enclosed is a rather extraordinary decision by the Superior Court in the�V-R1 v. NESWC litigation. At issue in that litigation is whether the NESWC communities must pay for 100% of the retrofit. The court finds that the service agreements on their face require the NESWC communities to pay, 100% of the costs. However, the court found that this provision is unconstitutional to the extent it requires the NESWC communities to use public funds to pay for a private benefit. The court states that further fact-finding is required to determine the appropriate allocation between NESWC and MRI. However, reading between the lines it would appear that the court would rule that NESWC is responsible for 20% of the cost, and Iv1RI 90% (assuming a 20 year life for the equipment). This ruling, if upheld, is an extraordinary victory for all the towns. While I have not extensively analyzed its implications for North Andover in particular, it would not appear to change anything that the town is involved in with respect to the current permitting and the future host community asTeement. Please do not hesitate to contact me. 1:1C'c.SE?rrSuVAN4vG— O1.NAN 06/15/98 11:44 TX/RX N0.9867 P.002 . 0 DATE: �✓ To: Zoning Board of Appeals Town Hall 120 Main Street North Andover, MA 01845 Please be advised that I have agreed to waive the time constraints for the Zoning Board of Appeals to make a decision regarding the granting of a VARIANCE for property located at: Name: Street:'0 ,5I"rO Town: / V Signed: cc: Town Clerk NORTHEAST SOLID WASTE COMMITTEE 530 Atlantic Avenue, Boston, Massachusetts 02210 • Tel (617) 443-1303 • Fax (617) 443-1301 June 9, 1998 Mr. Robert Halpin, Town Manager Town Hall ) 120 Main St. North Andover, MA 01845 Dear Mr. Halpin, We represent the twenty-three North East Solid Waste Committee (NESWC) communities that deliver their non -recycled municipal solid waste to the Massachusetts RefuseTech, Inc. (MRI) Facility located at 285 Holt Road in North Andover. We are writing to clarify the status of the retrofit process, which is the subject of the proposal before you from MRI, the owner and operator of the facility. The other NESWC communities will not interfere in North Andover's local approval process. We do wish to assist the North Andover Boards in fully understanding who will likely bear the financial consequences for actions taken during the approval process and to address the issue of project status raised at the Zoning Board of Appeals hearing held recently regarding the request by MRI for certain variances. MRI has submitted applications to the DEP and to the Town of North Andover based on a plan that we believe is more expensive than is strictly necessary to comply with law. Since we believe that MRI's proposal exceeds the legal requirements, we are in a binding independent third party process and have been for some time on the majority of the issues raised in our November 13, 1997 letter to MRI contesting certain portions of their proposal. Our expectation is that this process will conclude shortly. We do not believe that the resolution of the issues will impact the variances being requested by MRI. Rather, it will clarify who pays for what portions of the retrofit. We also want to be sure that the North Andover Boards fully understand that MRI may appear willing to accept additional changes or in fact propose changes if they believe that they will not have to bear the costs associated with such changes. 0 Printed on post consumer recycled paper c The final area of concern relates to the issue of timing. Delay in the local approval process will expose the NESWC communities, including North Andover, to significant additional costs. If the Facility cannot meet the December, 2000 deadline for compliance and is temporarily shutdown, the loss of private hauler revenues and energy revenues plus the additional cost of alternate disposal would add a significant cost burden to North Andover and the other NESWC communities. Please call us if you have any questions on any of the items discussed above or any other matter related to NESWC. Thank you for your continued interest. Sincerely, r2 Steven M. Rothstein Executive Director Shawn Worster Deputy Executive Director cc: William Sullivan, Chairman, Board of Appeals Gayton Osgood, Chairman, Board of Health Richard Rowen, Chairman, Planning Board NESWC Board of Directors PETER G.SHAIII;EN" MEGAN J. TAYLOR "ADMITTED IN MA & NH LAW OFFICE OF PETER G. SHAHEEN CHESTNUT GREEN 565 TURNPIKE STREET, SU:!'G 81 NORTH ANDOVER, MASSAi;I-IIJSETTS 61.845 May 29, 1998 William Sullivan, Chairman Zoning Board of Appeals - Town of North Andover 120 Main Street North Andover, MA 01845 RE: MRI - Variance Applications TEL: 978/689-0800 FAX: 978/794-0890 EMAIL: PGSLAw@AOL.COM Dear Mr. Sullivan: Per our discussion, l understand that.Mr. Soule is not availabie for our next hearing with your Board on June 9th. As such, please let this letter serve as my cl i el,ts' request to continue the hearings on our requests for variances until July 1''1, 1.998. We would, however, request that our appeal as a party aggrieved scheduled for June 9th go forward that night. Thank you for your attention to this matter and should you have any questions, please feel free to call. . Very truly yours, C - Peter G. Shaheen cc: Client: Maftiu Healy, Esq. .+, 'd'r. <'i3� ?; -1 � ... - r ,..:I,r+: "t . ...�:_ f '. . •i`I �� '� �; ,v e«, 1,. .: isF: . _. . ci" `i: .Y+�� } i:: r�aL < 1 r �>'y. .... rri, rl.. � .. - .tet ..1 c i' • j.� 5f a. PETER G.SHAHEEN" MEGAN J. TAYLOR "ADMITTED IN MA & NH William Sullivan, Chairman Zoning Board of Appeals Town of North Andover 120 Main Street North Andover, MA 01845 LAW OFFICE OF PETER G. SHAHEEN CHESTNUT GREEN 565 TURNPIKE STREET, SUITE 81 NORTH ANDOVER, MASSACHUSETTS 01845 May 29, 1998 RE: MRI - Variance Applications Dear Mr. Sullivan: 1 Y cc, TEL: 978/689-0800 FAX: 978/794-0890 EMAIL:PGSLAW@AOL.COM Per our discussion, I understand that Mr. Soule is not available for our next hearing with your Board on June 9th. As such, please let this letter serve as my clients' request to continue the hearings on our requests for variances until July 1. 4, 1998. We would, however, request that our appeal as a party aggrieved scheduled for June 9th go forward that night along with our request for the earth removal permit. Thank you for your attention to this matter and5bou44 you have any questions, please feel free to call. ly G. Shaheen cc: Client Martin Healy, Esq. Z H F-3 N :9� N) 0 H- C:) �3 F- F- F' Fj- H- t -h cf) 0 r- rt- �-j N F- rr Qj F - (Di �3' F - (D 0 rt h C:) F- 00 UI (n -L, z 0 L4 > Ul 0) co Am z (31 0 CA 1 < z 0 r -Z� 00 > (n (n i W X c --I o m > rq 0 m m :-' G) �u m M 0 c (n W c m z m :� M 0) 0 OD -N Ln L4 co Am CA 1 rro N. L- cm m Y— slyly � �..Z�,GII�G?�' C/ GCS G- r�7L2�.G/J�lLl7T.�9LLQL cXiGl��IlGJEi /_'/` / �/UZ SEG, �!nit!✓!Z, �-�i,�`' ARGEO PAUL CELLUCCI GOVERNOR. TRUDY COXE SECRETARY May 12, 1998 Ms. Lee Ketelsen New England Director . Clean Water Action 76 Summer Street, 6th Floor Boston, MA 02110 Dear Lee: Tel: (617) 727-9800 Fax: (617) 72;-2754 http://www.magnet.state.ma.usienvir Thank you for your letter regarding the North Andover incinerator operated by Wheelabrator and used by North East Solid Waste Committee (NESWC) communities. As requested, this letter will confirm my position regarding the potential closure of this facility. you know, the current allows for IsSolid Waste Master Plait is needed. Tbe Plan does not weve rel on an articular facility, landfill or incinerator, to meet the statewide need for waste dis f a articular perms e acility were to shut down, its capacity would be reallocated to other facilities ase on a existing or projected nereT e Soll aste Master Plan oes not stand in the way of such a s ut own. a issue in this case is not consistency with the Plan, but rather whether environmental and/or economic reasons warrant closure of the facility. Thi office wo fore o ose the shutdown of this facilitX because of the Solid Waste Master Plan. At the same time, it cannot actively pursue a shutdown unless there is evt ence o�o noncompliance with environmental requirements. The authority to issue or repeal permits for solid waste facilities rests with the Department of Environmental Protection (DEP). Neither I nor DEP have authority to order a shutdown absent evidence of significant and/or chronic violations of air quality standards or permit conditions at the facility. I have discussed this matter with DEP Commissioner David Struhs and his staff. I have been assured that DEP is monitoring the performance of this and other facilities in the Merrimack Valley and will not hesitate to take enforcement action, if necessary. Commissioner Struhs and I appreciate the concerns you and other members of the Merrimack Valley Environmental Coalition have raised about the compliance record and environmental impacts of these facilities, including cumulative impacts. We both believe that the proposed Municipal Waste Combustor regulations will reduce impacts very substantially, but we also understand that they do not necessarily answer all your questions and that we, need to address remaining areas of public concern. RECYCLED PAPER In response to issues raised at recent meetings and public hearings, DEP is developing a plan to proactively reach out to community members and local officials. In particular, DEP is committed to making more information available on combustion facilities and the way they are regulated in a more accessible way. The Department has also begun working with Alternatives for Community & Environment (ACE) to create a forum for dialogue among all interested parties. Please contact Doug Fine at, (617) 5746862 for more details. Any ideas you may have for improving information accessibility and interaction with DEP and EOEA would be greatly appreciated. You have asked for a meeting to further discuss these issues. Although I hope that this letter is responsive to the issues you have raised, I have asked my executive assistant, Joan Grourke, to schedule a meeting with you, which will also include senior policy staff from EOEA and DEP. In the meantime, if you have any questions, please call Scott Cassel, Director of Waste Policy, at (617) 727-9800, ext. 291. Thank you for bringing your concerns to my attention. I look forward to our meeting: Cordially, I Trudy Coxe cc: Eric Weltman, Toxics Action Center Commissioner David Struhs, DEP Jan Reitsma, EOEA Scott Cassel, EOEA 2 g'q/yt Ss People for the Environment P.O. Box 542 North Andover, MA 01845 May 19, 1998 Mr. William Sullivan North Andover Zoning Board of Appeals 125 Main Street North Andover, MA 01845 Dear Mr. Sullivan: On behalf of several North Andover citizens, I am requesting that you deny without prejudice Wheelabrator/MRI's request for a zoning variance at their incinerator on Holt Road. There are several reasons for our request: 1. Enclosed is a letter dated November 13, 1997 which was written by Mr. Steven Rothstein, the Executive Director of the North East Solid Waste Committee, to Mr. James Dougherty, Vice President of Massachusetts Refuse Tech, Inc. The letter disputes 60+ points in the design of the retrofit as proposed by Wheelabrator/MRI. These points are currently the subject of binding arbitration. We believe that there is no reason why it makes sense for the Zoning Board of Appeals to act on this request for a variance until these 60+ points are resolved. We ask that you pay special attention to items 22, 23, 29, 37, 40, 43, 45, 57. Also, note in particular item 64. 2. The Massachusetts Department of Environmental Protection has not yet finalized the new emissions regulations that will apply to solid waste incinerators in Massachusetts. It is apparent, however, that the new regulations will be more stringent. 3. In the light of the vote of Town Meeting on Article 16 of the Town Warrant last week, there is no reason for the Zoning Board of Appeals to rush the retrofit forward. Article 16 as you recall urges the Town Manager and the Board of Selectmen to actively pursue a shutdown of this incinerator. Also, the Board of Health has already been persuaded to wait in acting. We are requesting that the Zoning Board do the same. 4. North Andover's Building Inspector has already stated that the proposed building height is not consistent with applicable zoning regulations; there is no reason why the Zoning Board needs to make an exception, particularly for an entity that is polluting our community. Sirs lel Ed Meagher Co chairperson cc: Members of the Zoning Board 1. enc. MEMORANDUM IN SUPPORT OF MASSACHUSETTS REFUSETECH, INC.'S APPLICATIONS TO ZONING BOARD OF APPEALS MAY 19, 1998 I. INTRODUCTION Massachusetts REFUSETECH, Inc. ("MRI") is planning to upgrade the air emissions control equipment for its existing resource recovery facility located at 258 Holt Road in North Andover. In several applications to the Board of Appeals, MRI seeks a determination that zoning relief is unnecessary for the construction of the proposed structures or the maintenance of an existing structure. To the extent necessary, however, MRI contends that it is entitled to a height variance that may be required for the proposed structures as well as a modification of the height variance granted in 1982 for the original construction of the facility. In addition, MRI seeks a determination that the proposed number of parking spaces is appropriate for the upgraded facility, and seeks from the Board a permit to remove approximately 3,000 cubic yards of soil in the course of the proposed project. II. BACKGROUND Development of the Facility. The Commonwealth of Massachusetts developed the waste -to -energy facility in the early 1980s and established an organization of 23 communities, including North Andover, known as the North East Solid Waste Committee ("NESWC"). The facility was developed as a product of a public-private collaboration spearheaded by the Commonwealth beginning in the mid-1970s. The facility lies on land that the Commonwealth took by eminent domain in 1981 for the sole purpose of creating a solid waste facility, and MRI occupies the site by virtue of a long-term lease with the Commonwealth that required MRI to construct a resource recovery facility and does not allow use of the site except as a resource recovery facility. The facility was constructed in the early 1980s. As part of the construction planning process, MRI obtained a height variance from the Board on April 13, 1982 to allow the facility to be constructed to approximately 102 feet above the height of the tipping floor (" 1982 variance") . Often referred to as the "NESWC facility," the facility operates within the framework of 20 -year service agreements between MRI and the NESWC communities that ensure that the facility meets the municipal solid waste disposal needs of the NESWC communities. Under the service agreements, MRI, NESWC, and its constituent communities have continued the public-private collaboration that gave birth to the facility. The NESWC communities are entitled to most of the revenue from the sale of electricity generated by the facility as well as the revenue from disposal fees paid by non-NESWC customers. NESWC (which was recreated by the state legislature in 1988 as a body politic with authority to enter contracts) has } negotiated agreements for adequate disposal capacity for ash generated by the facility, and has negotiated for improved contract terms with MRI and its electricity purchaser. - Proposed Emissions Control Project. The proposed project is the addition of air emissions control equipment and the necessary appurtenant structures, including lime storage silos. The additional air emissions control equipment is being installed to comply with federal requirements adopted pursuant to the Clean Air Act Amendments of 1990. As a result of design requirements, the air emissions control equipment and the height limitation must be built to a height that exceeds the applicable height limitation but that is still less than the approved height of the existing facility. Building Commissioner's Determinations. On January 15, 1998, MRI submitted a written inquiry to the Building Commissioner to determine what zoning relief, if any, might be required prior to issuance of a building permit for the emissions control project. On March 16, 1998, the Building Commissioner responded with his conclusions. Letter from Building Commissioner to EMCON (Mar. 16, 1998). Among other things, the Building Commissioner stated that a height variance "will be required" for the proposed emissions control equipment and that the new structures would not be covered by the 1982 variance for the facility. In addition, the Building Commissioner stated that the existing boiler building may exceed the height established by the 1982 variance, and counseled MRI to request that the Board grant a modification of the 1982 variance. Id. Applications to the Board. In its Application for Appeal of the Building Commissioner's Determinations ("Appeal"), MRI appeals from written determinations of the building commissioner stated in his letter dated March 16, 1998 to the effect that (1) a height variance is required for the construction of proposed emissions control equipment and associated lime storage silos and (2) a modification of an existing height variance may be required for the existing boiler building. In its Application for Zoning Relief, MRI seeks a variance from the North Andover zoning bylaw to allow the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations set forth in Section 7.4 of the zoning bylaw. MRI also seeks confirmation that its existing boiler building complies with a height variance granted previously (or in the alternative, a modification of that variance) as well as a determination that the proposed number of parking spaces is adequate. Finally, in its Application for Earth Removal Permit, MRI seeks a permit to authorize the incidental excavation and partial removal of soil in approximately 3,000 cubic yards of soil in the course of the proposed project. 2 III. DISCUSSION A. Necessity of Zoning Relief The only zoning restriction at issue is the generally applicable height limitation in the Zoning bylaw. The Board has the authority to determine that zoning relief is not necessary for either the construction of the structures required for the emissions control project or the maintenance of the facility's existing structures. Zoning relief is unnecessary because the facility is immune from local zoning restrictions because it is performing an essential governmental function in collaboration with the Commonwealth of Massachusetts and the North East Solid Waste Committee, a state body politic. In addition, the state Zoning Act exempts construction activities relating to solid waste facilities from the purview of generally applicable zoning restrictions such as the height limitation here. Finally, a height variance for the emissions control project is unnecessary' because the proposed new facility components fall within the height limitation established for the facility as a whole in the 1982 variance. In addition, a height variance for the maintenance of the existing facility is likewise unnecessary by virtue of the applicable statute of limitations periods for zoning enforcement actions under the Zoning Act. 1. Zoning Relief Is Unnecessary Because the Facility is Performing an Essential Governmental Function And Therefore Immune from Zoning The facility is immune from local zoning laws by virtue of the state instrumentality doctrine. Under the state instrumentality doctrine, "an entity or agency created by the Massachusetts Legislature is immune from municipal zoning regulations (absent statutory provision to the contrary) at least insofar as that entity or agency is performing an essential governmental function," County Comm'rs of Bristol v. Conservation Comm'n of Dartmouth, 380 Mass. 706, 710 (1980) (citing Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440 (1906), City of Medford v. Marinucci Bros. & Co., 344 Mass. 50 (1962), and Village on the Hill, Inc. v. Massachusetts Turnpike Auth., 348 Mass. 107 (1964), cert. denied, 380 U.S. 955 (1965)). See also Freetown v. Zoning Bd. of App. of Dartmouth, 33 Mass. App. Ct. 415, 419 (1992). The state instrumentality doctrine applies where a private entity uses state land to carry out an essential governmental function by engaging in an activity specifically allowed by a state instrumentality. See City of Medford, 344 Mass. at 56-57 (private contractor working on state highway project had permission from state's Chief Engineer to construct and use construction - related loading area on state land); Teasdale, 192 Mass. at 442-43 (private contractor working on state park project had permission from metropolitan park commissioners to build and use construction -related horse stable on state land). The state instrumentality doctrine applies to the facility. Apart from its involvement in the facility through NESWC (discussed below), the state itself was directly and centrally 3 involved in the promotion and development of the facility, and continues in its role as owner of land acquired and leased for the sole purpose of providing solid waste disposal capacity to communities in the region. Special counsel to the Town of North Andover recently came to a similar conclusion in an opinion affirming the validity of the 1982 site assignment for the facility. See Letter from McGregor & Shea to Board of Selectmen re: Wheelabrator Facility Site Assignment and Host Community Agreement Issues (Feb. 19, 1998) ("McGregor & Shea Opinion"). Special counsel noted that "the State clearly `established' the facility and may even be a `co-operator' in several respects."' McGregor & Shea Opinion at 3. Like the activities of the private entities in City of Medford and Teasdale, the construction and maintenance of the facility was specifically approved by the state both in its role as promoter (through, among other things, sponsorship of a request of qualifications and a request for proposals, preparation of an environmental impact report, and negotiation of a long-term lease requiring the construction of the facility) and its role as regulator (through the site assignment, solid waste facility permitting, and air emissions permitting processes). The legislature has deemed it an "essential public purpose" and an "essential governmental function" for the state to provide for needed solid waste disposal capacity, particularly on a regional basis. See Freetown, 33 Mass. App. Ct. at 418 (citing M.G.L. c. 21H, §§ 1(a)(2)-(3), 1(b)(2)). Moreover, the statute under which the state acquired and leased the site to MRI expressly contemplates that the state may choose to perform this essential governmental function through use of a private entity. See M.G.L. c. 16, § 19. The state instrumentality doctrine also applies by virtue of the facility's relationship with NESWC. The state legislature has granted NESWC the status of a "body politic and corporate," and declared that NESWC "shall be a public instrumentality and the exercise of its powers shall be deemed to be the performance of an essential governmental function." St. 1988, c. 328, § 1 (emphasis added) ("NESWC Act"). The powers granted by the NESWC Act contemplate that NESWC will have a central role in the provision of solid waste disposal capacity for the NESWC communities, primarily through NESWC's ongoing participation in ' Special counsel recited the following facts in support of his conclusion: 1. The State promoted the construction of the facility, organized communities to participate in the planning and development of the NESWC project, assisted in the selection of the site, acquired land through eminent domain, leased the land to the operator, issued a request for qualifications and a request for proposals to build and operate the facility, assisted in obtaining financing; approved the design and construction of the facility, issued the Environmental Impact Report, filed the application for and received a site assignment from the DEP, and acted as [C]ontract Community Representative under the NESWC Service Agreement. (The State acted to "establish" the facility). 2. The State guaranteed to supply 3,140,000 cubic yards of ash disposal capacity and executed a contract for expansion of the current ash landfill. (The State acted to "establish" the facility and is an "operator" by providing the ash disposal capacity). McGregor & Shea Opinion at 3 (emphasis added). 0 the public-private collaboration required for the maintenance of the NESWC project in North Andover. The NESWC Act specifically authorizes NESWC to "render [the NESWC communities] all possible assistance in ... the construction, alteration, expansion, operation and maintenance of regional solid waste facilities, including but not limited to ... resource recovery and electric generating plants including the [NESWC] facility," and likewise authorizes NESWC the authority to represent the NESWC communities's interests with respect to the pre-existing service agreements and any future agreements NESWC chooses to execute in its own name. Id. §§ 3(1), 3(p). Separately and together, the two public-private relationships underlying the development and maintenance of the facility on state land warrant the application of the state instrumentality doctrine. Because the facility is therefore immune from the height limitations in the zoning bylaw, no zoning relief should be required. 2. Zoning Relief Is Unnecessary Under the Statutory Zoning Exemption for Solid Waste Facilities Independent of the state instrumentality doctrine, construction activities relating to the facility should be exempt from dimensional zoning requirements by virtue of an exemption for solid waste facilities in the state Zoning Act. The state legislature passed the Solid Waste Management Act in part to remedy "a severe shortage in environmentally safe and financially sound capacity for the storage, disposal and processing of solid waste." St. 1987, c. 584, § 3. The Act amended the state Zoning Act, M.G.L. c. 40A, so as to shield solid waste facilities with site assignments under M.G.L. c. 111, § 150A from local zoning restrictions that could frustrate construction activities involving such facilities. Paragraph 15 of M.G.L. c. 40A, § 9 ("Chapter 40A exemption") now provides in pertinent part: A facility, as defined in section one hundred and fifty A of chapter one hundred and eleven, which has received a site assignment pursuant to said section one hundred and fifty A, shall be permitted to be constructed or expanded on any locus zoned for industrial use unless specifically prohibited by the ordinances and bylaws of the city or town in which such facility is proposed to be constructed or expanded, in effect as of July first, nineteen hundred and eighty-seven; provided, however, that all permits and licenses required by law shall have been issued to the proposed operator. (Emphasis added.) The Chapter 40A exemption applies to the facility. The facility received a site assignment on May 11, 1982, lies within the Industrial -2 zoning district, is specifically allowed 5 as of right in that district, and has all required permits and licenses? Accordingly, the zoning bylaw's generally applicable height limitation should not apply either to the proposed new facility components or the existing facility components. 3. The Existing Height Variance Allows Construction of the Proposed Facility Components MRI sought a height variance in 1982 for the construction of the facility. According to the Board's April 13, 1982 decision, MRI proposed to construct "industrial type buildings" comprising a resource recovery "facility." As noted by the Board, "[t]he design parameters for the boiler require a relatively tall furnace which will exceed the Table 2, Industrial -2 maximum height of 55 feet by approximately 47 feet as shown on [the March 25, 1982 drawing submitted with the application]." (Emphasis added.) The referenced drawing showed a boiler building rising 102 feet above the tipping floor elevation. When the Board issued the 1982 variance, the applicable height limitation for the land subject to the North Andover zoning bylaw was changed to that allowed by the variance. Because the emissions control project simply adds equipment to the existing facility, at a height lower than the existing facility, it is encompassed by the original variance for the project. 4. Zoning Relief Is Unnecessary for the Existing Facility Because It Complies with the Existing Height Variance and, in Any Event, Is Protected by the Statute of Limitations for Zoning Enforcement Actions The existing building complies with the terms of the 1982 variance. As built, the boiler building rises only 106.5 feet from the tipping floor elevation -- only four and a half feet beyond the building height estimated in the variance. MRI respectfully requests that the Board confirm that the current height of the boiler building falls within the range of the "approximately" 102 foot height approved by the Board. In any event, any noncompliance with the zoning bylaw is irrelevant at this late date. The Zoning Act bars attacks on the zoning status of structures and uses following the passage of a reasonable length of time. A structure built and used in accordance with a building permit cannot be subject' to a zoning enforcement action more than six years after it is built in violation of a zoning bylaw. M.G.L. c. 40A, § 7 ("section 7"). A similar 10 year limitations period applies even to structures not built in accordance with a building permit. Id. The limitations periods relevant to the dimensions of the existing boiler building have long since expired. The building was completed in 1985. The building therefore became protected under section 7 as of 1991. (Even if the building was not built in compliance with ` The Chapter 40A exemption does allow the enforcement of a pre -July 1, 1987 specific prohibition of solid waste facilities, as well as the enforcement of generally applicable bylaws protecting certain environmentally sensitive areas. See M.G.L. c. 40A, § 9, para. 15. There are no such bylaws at issue in this case. no the building permit, the building would still have been protected by the 10 year limitations period as of 1995.) The building having acquired protected status some time ago, it would be inappropriate to require a modification of a variance from a height limitation that is now unenforceable. B. Merits of Zoning Relief 1. Criteria for Issuance of a Variance Pursuant to Section 10.4 of the zoning bylaw, the Board may grant variances from the terms of the zoning bylaw if the Board finds that: [1] owing to circumstances relating to soil conditions, shape, or topography of the land or structures and especially affecting such land or structures but not affecting generally the zoning district in general, a literal enforcement/ of the provisions of this Bylaw will involve substantial hardship, financial or otherwise, to the .. . applicant, and that [2] desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw. See also M.G.L. c. 40A, § 10. In applying these standards, Massachusetts courts have recognized that hardship adequate to support a variance exists where there is no other reasonable use for an "unusual, if not unique, and substantial" existing building. Johnson v. Board of App. of Wareham, 360 Mass. 872, 873 (1972). See also Simone v. Board of App. of Haverhill, 6 Mass. App. Ct. 601, 603 (1978). There is ample evidence to allow the Board to make such findings in this case. 2. Continued Economic Use of -the Unique and Substantial Facility Requires the Construction of New Structures in Excess of the 85 Foot Height Limi The Height of the Proposed Structures Is Required by the Unique Conditions Affecting the Existing Facility. The existing facility is substantial and unique. It was designed, constructed, and permitted for the sole purpose of serving as a resource recovery facility, the only such facility in the 1-2 zoning district and the only such facility in the Town as a whole. Unlike certain other industrial facilities, such as factories that can change assembly lines or mill buildings that can be converted to offices or residences, there is no reasonable use for MRI's facility except as a resource recovery facility. The continued use of MRI's facility requires the installation of state-of-the-art emissions control equipment adequate to meet the U.S. Environmental Protection Agency's ("EPA") new technology-based emissions standards. MRI can only do so by erecting structures in excess of the 85 foot height limitation. EPA established the new sulfur dioxide and hydrogen chloride limits based on the use of spray dray absorbers ("SDAs"). SDAs have been demonstrated in practice to be very efficient and reliable. No alternative emissions control equipment that is as efficient and reliable as an SDA could be installed at a height of less than 85 feet. The proposed height of the SDAs is based on the anticipated flue gas residence time necessary to achieve compliance with the new emissions limitations. The residence time is directly related to the height. In addition, the height of the lime silos has been minimized to the extent practicable by providing two one-half size silos rather than a single larger silo. The proposed height is required to provide the necessary lime storage volume, vertical space requirements for the lime slaking equipment and storage volume for the lime slurry product. Literal Enforcement of the Height Limitation Would Involve Substantial Hardship. Literal enforcement of the height limitation in this case would result in substantial hardship to MRI because without the timely installation of the proposed equipment the facility could not be put to its special purpose use. In this respect, it is important to note that even relatively minor "hardship" can justify a variance where inconsequential dimensional variances are involved. See Josephs v. Board of App. of Brookline, 362 Mass. 290, 293 (1972); Wolfman v. Board of App. of Brookline, 15 Mass. App. Ct. 112, 116, review den., 388 Mass. 1104 (1983). Relief May Be Granted Without Substantial Detriment to the Public Good and Without Derogating from the Intent or Purpose of the Zoning Bylaw. A modest dimensional variance, as opposed to a use variance, rarely leads to a substantial derogation from the intent of the bylaw. See, e.g., Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 69-70 (1977); see also Report of the Department of Community Affairs relative to proposed changes and additions to the Zoning Enabling Act at 65, 1972 House Doc. No. 5009 ("The strict approach to the granting of use variances adopted by the Massachusetts Supreme [Judicial] Court is, of course, entirely justified in view of the deleterious erosion to the zoning plan which is caused by overly generous utilization of the `use' variance granting power .... Whether the same strict standards are necessary in the protection of the public interest when dimensional variances are involved is doubtful. "). In any event, granting the requested height variance in this case would neither threaten the public good nor derogate from the purpose of the zoning- bylaw. oningbylaw. Because the proposed emissions control equipment and associated lime storage silos will be no taller than the existing boiler building, and will merely be new components of a facility that has been in existence for over 13 years, the new structures do not threaten to change the character of the facility's industrial neighborhood from an aesthetic or any other standpoint. Moreover, the sole purpose of the proposed emissions control equipment and associated silos is to reduce emissions of air pollutants and the Massachusetts Secretary of Environmental Affairs has already certified that "the project will have significant air quality benefits." Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form at 2 (Mar. 13, 1998). Accordingly, the addition of new emissions control equipment will inherently serve the public good and satisfy the primary purpose of the zoning �, bylaw, namely, "the promotion of the health, safety.... and welfare of the inhabitants of the Town of North Andover. " Zoning Bylaw § 1. 3. A Modification of the 1982 Variance Is Warranted MRI has requested confirmation that the height of the existing boiler building is in compliance with the terms of the height variance issued on April 13, 1982 (" 1982 variance"). Should the Board be unable to do so, MRI requests that the Board modify the 1982 variance to reflect in concrete terms the as -built height of the existing boiler building because the design parameters for the boiler naturally remain the same, and for the other reasons presented to the Board in 1982. C. Increasing the Number of Parking Spaces to 56 Will More than Meet the Facility's Parking Needs MRI has also sought a determination from the Board as to the adequacy of the proposed number of parking spaces for the facility. Section 8.1.5 provides that 'Jiff the Building Inspector is unable to identify a use with one (1) or more of the uses in the [schedule in Section 8.1(2)], application shall be made to the Board of Appeals for the purpose of determining a sufficient quantity of parking spaces ... consistent with the [schedule in Section 8.1.2]." Because MRI's facility does not appropriately fall within the categories of uses listed in the Section 8.1.2 schedule, nor was the Building Commissioner able to identify an applicable use category, MRI requests that the Board determine that the planned number of parking spaces is of sufficient quantity. The facility's largest shift is currently 35 employees, which will increase to 36 as a result of the emissions control project. While the facility's current 52 parking spaces (including two handicapped spaces) appear to be adequate to meet the facility's parking needs, MRI plans to increase the number of parking spaces to 56 (with three spaces designated for handicapped use, including one van accessible handicapped space), and will reserve an area for six additional parking spaces in order to accommodate any increased need in the future. MRI requests that the Board determine pursuant to Section 8.1.5 of the zoning bylaw that the 56 planned parking spaces are of sufficient quantity to meet the facility's parking needs. D. Earth Removal Incidental to the Project Will Comply with the Earth Removal Bylaw To the extent that such activities are not permitted as of right by Section 5.6.1 of the zoning bylaw, MRI seeks a permit to authorize the incidental excavation and partial removal of soil in excess of 1,000 cubic yards but less than 5,000 cubic yards, in accordance with Section 5.6.2 of the zoning bylaw. The excavation of approximately 3,000 cubic yards of soil will be necessary to accomplish the on-site installation of such items as foundations, buried piping and electrical systems. All excavation will be incidental to construction of the buildings, structures and buried services for which building permits will be obtained. I It is presently anticipated that the excavated soil will be temporarily stored, either on- site or off-site, prior to being reused on-site. Due to the congested conditions on site, it is anticipated that excavated material will need to be moved to a central stockpiling area, rather than be left next to the excavation areas. Most of the excavated soil will be needed for backfill. Engineered fill material was brought in to level the site during original construction. Therefore, most of the excavated soil is expected to be suitable for backfilling of excavations for the proposed project. Excess material not utilized for fill will be temporarily stockpiled on-site or in a nearby off-site location and utilized for regrading and contouring of the site.' III. CONCLUSION For the foregoing reasons, and for the reasons presented in MRI's applications and at the public hearing, MRI respectfully requests that the Board grant the relief requested. DOCSB\548586.5 3 It should be noted that the selected on-site location to stockpile excavated soil was identified to the North Andover Conservation Commission in the filing of a Request for Determination of Applicability. The Conservation Commission issued a Determination which accepted the wetland resource area and buffer zone boundaries. This proposed stockpile area is not located within any wetland resource areas or buffer zones, and no further approval from the Conservation Commission is necessary. 10 GOODWIN, PROCTER & HOAR LLP COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 May 19, 1998 BY HAND North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Re: Waste to Energy Facility Emissions Control Project North Andover, MA Dear Board Members: TELEPHONE (617) 570-1000 TELECOPIER (6(7) 227-8591 In the course of preparing the Massachusetts REFUSETECH, Inc. ("MRI") emissions control project applications for zoning relief, we have researched several issues that may be of interest to the Board of Appeals. While we recognize that the Board will look to its counsel for guidance on such matters, we would like to offer the Board the benefit of our research on these questions: (1) Since the emissions control project is mandated by federal law, is the project subject to the town's zoning requirements? Like other existing resource recovery facilities, the North East Solid Waste Committee ("NESWC") facility in North Andover is required by federal law to install emissions control equipment to meet new requirements adopted pursuant to the federal Clean Air Act Amendments of 1990. The use of local zoning requirements to prevent compliance with federally mandated Clean Air Act standards is problematic at best. However, entirely apart from such considerations, there are three independent and dispositive reasons why the height requirements of the North Andover zoning bylaw are inapplicable to the emissions control project. GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 2 (a) The Facility Is Immune from Zoning Because It Performs an "Essential Governmental Function" of the Commonwealth of Massachusetts The facility performs an "essential governmental function" on state-owned land for a state purpose and is therefore not subject to local zoning. County Commissioners of Bristol v. Conservation Commission of Dartmouth, 380 Mass. 706, 710 (1980); Freetown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415, 419 (1992). Special counsel for the Town of North Andover has previously concluded that: The State promoted the construction of the facility, organized communities to participate in the planning and development of the NESWC project, assisted in the selection of the site, acquired land through eminent domain, leased the land to the operator, issued a request for qualifications and a request for proposals to build and operate the facility, assisted in obtaining financing; approved the design and construction of the facility, issued an Environmental Impact Report, filed the application for and received a site assignment from the DEP, and acted as [C]ontract Community Representative under the NESWC Service Agreement. Letter from McGregor & Shea to Board of Selectmen at 3 (Feb. 19, 1998). In the Report of the Inspector General entitled "The North East Solid Waste Committee Project: Planning and Development of a Public Private Partnership," December, 1997, the NESWC project is described as a "public-private partnership that was planned and developed by the Commonwealth ... as a partial solution to the state's mounting solid waste disposal problems." Id. at 1. The Inspector General's report notes that the NESWC project was one of a kind -- "the only resource recovery project planned and developed by the Commonwealth that was actually constructed." Id. at 4. At first, the state acted as Contract Community Representative under the NESWC Service Agreements, pursuant to which the NESWC communities are served by the resource recovery facility. Later, NESWC itself was given the status of a "body GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 3 politic and corporate" and declared to be a "public instrumentality" carrying out an "essential governmental function." St. 1988, c. 328. The NESWC powers include "planning and implementing ... construction, alteration, expansion, operation and maintenance of regional solid waste facilities, including ... [the NESWC] facility." Id. § 3(1). Since the facility carries out an "essential governmental function" of the Commonwealth of Massachusetts on land owned by the Commonwealth of Massachusetts pursuant to a lease from the Commonwealth of Massachusetts it is not subject to local zoning controls. (b) The Facility Is Also Protected from Local Zoning by the Massachusetts Zoning Act A solid waste facility which has received a site assignment "shall be permitted to be constructed or expanded on any locus zoned for industrial use unless specifically prohibited by the ... by-laws ... in effect as of [July 1, 1987]." M.G.L. c. 40A, § 9, para. 15. The facility is in an industrial zone of North Andover in which solid waste facilities are permitted by right. Pursuant to M.G.L. c. 40A, § 9, para. 15, zoning controls applicable to such facilities may be adopted after July 1, 1987, under certain limited circumstances not relevant to the facility. (c) The Existing Zoning Variance Encompasses the Emissions Control Project When the Board of Appeals issued a variance in 1982 allowing construction of the facility to a height of approximately 102 feet above the tipping floor elevation, the applicable height limitation for the land under the North Andover zoning bylaw was changed to that allowed by the variance. Because the emissions control project simply adds equipment to the existing facility, at a height lower than the existing facility, it is encompassed by the original variance for the project. (2) Why is MRI a "person aggrieved" by the Building Commissioner's decision that a variance is required for the emissions control project? MRI asked the Building Commissioner for a ruling on whether a variance would be required for the emissions control project. The Building Commissioner decided that a variance would be required. For the reasons stated above, among others, MRI is aggrieved by that decision. M.G.L. c. 40A, §§ 8 and 15, grant the right of parties with 1 GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 4 a direct and substantial interest in such decisions to have the matter presented to the Board of Appeals for review. There can be no doubt that MRI, as operator of the facility pursuant to a lease from the Commonwealth of Massachusetts, has a direct and substantial interest in the decision of the Building Commissioner. See, e.g., Dion v. Board of Appeals of Waltham, 344 Mass. 547, 554-55 (1962) (a "straw" holder of legal title); Carson v. Board of Appeals of Lexington, 321 Mass. 649, 652 (1947 (applicant was a buyer under a purchase and sale agreement contingent upon the granting of a building permit); Martinelli v. Board of Appeals of Boston, 275 Mass. 169, 172-3 (1931) (applicant who had oral agreement with landowner to buy or lease the land). (3) May the Board take into account matters such as the existing emissions from the waste to energy facility, in deciding whether issuance of a dimensional variance would result in "substantial detriment to the public good" within the meaning of Section 10.4 of the zoning bylaw and M. G.L. c. 40A, § 10? The Board should confine its consideration of the "public good" to those zoning matters which are within the scope of concern of the zoning bylaw as they relate to the nature and extent of the zoning relief requested. Here, the question is whether equipment which will exceed the height limitation of the zoning bylaw (when viewed within the context of the existing higher buildings and structures which have already been granted a height variance) will cause substantial detriment to the public good. A board of appeals cannot deny or condition zoning relief in a manner that exceeds -its authority to administer local zoning laws. See, e.g., Middlesex & Boston St. Ry. Co. v. Board of Aldermen of Newton, 371 Mass. 849, 858 (1977) (holding that a special permit granting authority could not condition a special use permit for multifamily housing on a set-aside of units for below-market rents because the policy decision underlying such a condition is beyond the jurisdiction of a special permit granting authority); Assessors of Dover v. Dominican Fathers Province of St. Joseph, 334 Mass. 530, 536 (1956) (holding that a board of appeals may not attach conditions to a variance that touch on the subject of taxes or exemptions from taxation because "[t]he zoning and taxing statutes are separate and distinct, and each is separately administered") .' For example, the Supreme Judicial Court, in its Middlesex & Boston Street Railway decision, set the applicable standard for this issue, when it stated: "We hold that the administrative board authorized to pass on applications for special permits under the zoning ordinance is without power to make the important policy decisions involved in committing a municipality to a program of public housing ...... 371 Mass at 858 (emphasis GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 5 The issues properly considered by a board of appeals must necessarily reflect the nature and extent of the relief requested, and the scope of concern of the zoning bylaw provision at issue. While considerations relating to establishment of an incompatible use and preservation of the character of a zoning district are relevant in the context of a use variance, these considerations should not be relevant in the context of a dimensional variance. See, e.g., 3 Kenneth H. Young, Anderson's American Law of Zoning § 20.48, at 579-81 ("An area [i.e., dimensional] variance is thought not to threaten adjacent land with the establishment of an incompatible use, or to hazard the maintenance of a use which will change the essential character of a neighborhood."). Since the use of the facility is expressly permitted within the I-2 zoning district, considerations relating to the continued use of the facility are beyond the Board's purview. In this case, the relief requested concerns only one dimension -- height -- and seeks only to allow installation of emissions control equipment which will be lower in height than the facility's existing buildings and structures. The need for the added equipment in light of changes to the applicable emissions requirements under the Clean Air Act can and should be taken into consideration. In weighing whether the added equipment will cause "substantial detriment to the public good," the only relevant consideration before the Board is the proposed height of the equipment within the context of higher buildings and structures. The fact that the Board has previously granted variances for higher buildings and structures on the lot has a material bearing on that question. (4) May unique circumstances concerning structures (as opposed to unique circumstances concerning a parcel of land) justify issuance of a dimensional variance? Yes. The word "structures" in Section 10.4 of the zoning bylaw (patterned after M.G.L. c. 40A, § 10) would be meaningless if a variance could only issue due to hardship arising from "soil conditions, shape, or topography of the land or structures." Cf. Neff v. Commissioner, 421 Mass. 70, 75 (1995); Manning v. Boston Redevelopment Auth. , 400 Mass. 444, 453 (1987) (holding that legislation "should not be construed in a way that produces absurd or unreasonable results when a sensible construction is readily available"). Indeed, courts have recognized that hardship adequate to support a variance exists where there is no other reasonable use for an "unusual, if not unique, added). 1 GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 6 and substantial" existing building. Johnson v. Board of App. of Wareham, 360 Mass. 872, 873 (1972). See also Simone v. Board of App. of Haverhill, 6 Mass. App. Ct. 601, 603 (1978). (5) May the project be regulated as an extension of a lawfully nonconforming structure under Section 9.2 of the zoning bylaw? No. Consistent with the provisions of the zoning bylaw defining and regulating lawfully nonconforming structures, see Zoning Bylaw §§ 2.53 and 9.1; M.G.L. c. 40A, § 6, a lawfully nonconforming structure is generally understood as a structure that met all of the applicable dimensional requirements in a zoning bylaw when originally constructed, but does not today meet all such dimensional requirements due to subsequent amendments to the zoning bylaw. See Barron Chevrolet, Inc. v. Town of Danvers, 419 Mass. 404, 408 (1995). "This is distinct from a use [or structure] permitted by a variance. Such a use [or structure] cannot be a prior nonconforming use [or structure] because, by definition, a variance was required and it therefore was not allowed as a matter of right. " Id. (citing Mendes v. Board of App. of Barnstable, 28 Mass. App. Ct. 527, 531, review denied, 407 Mass. 1103 (1990)). Although the height of the existing boiler building and the existing stack are in excess of the generally applicable height limitations in an I-2 district, the waste to energy facility is not a "lawful nonconforming" structure, because height variances were required to permit its construction because it did not meet the applicable height requirement in the zoning bylaw when constructed. Therefore, the proposed additional structures clearly do not represent the alteration or extension of a lawfully nonconforming structure governed by Section 9.2 of the zoning bylaw or M.G.L. c. 40A, § 6. In addition, to the extent that the existing waste to energy facility was not constructed in accordance with the height variances granted by the Board, the facility would then become a protected structure pursuant to the 6 and/or 10 year statutes of limitation provided for in M.G.L. c. 40A, § 7. In any event, whether the facility is a protected structure or authorized by previously issued variances, it is not "lawfully nonconforming" within the meaning of the zoning bylaw or M.G.L. c. 40A, § 6 and interpretative case law. GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 7 Thank you for your attention to and consideration of our research of the above matters. Very truly yours, Martin R. Healy cc: Kenneth L. Kimmell, Esq. Gail M. Lynch, Esq. Lawrence E. Kaplan, P.C. Peter G. Shaheen, Esq. Jonathan S. Klavens, Esq. GOODWIN, PROCTER & HOAR LLP COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 May 19, 1998 BY HAND North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 Re: Waste to Energy Facility Emissions Control Project North Andover, MA Dear Board Members: TELEPHONE (617) 570-1000 TELECOPIER (617) 227-8591 In the course of preparing the Massachusetts REFUSETECH, Inc. ("MRI") emissions control project applications for zoning relief, we have researched several issues that may be of interest to the Board of Appeals. While we recognize that the Board will look to its counsel for guidance on such matters, we would like to offer the Board the benefit of our research on these questions: (1) Since the emissions control project is mandated by -federal law, is the project subject to the town's zoning requirements? Like other existing resource recovery facilities, the North East Solid Waste Committee ("NESWC") facility in North Andover is required by federal law to install emissions control equipment to meet new requirements adopted pursuant to the federal Clean Air Act Amendments of 1990. The use of local zoning requirements to prevent compliance with federally mandated Clean Air Act standards is problematic at best. However, entirely apart from such considerations, there are three independent and dispositive reasons why the height requirements of the North Andover zoning bylaw are inapplicable to the emissions control project. GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 2 (a) The Facility Is Immune from Zoning Because It Performs an "Essential Governmental Function" of the Commonwealth of Massachusetts The facility performs an "essential governmental function" on state-owned land for a state purpose and is therefore not subject to local zoning. County Commissioners of Bristol v. Conservation Commission of Dartmouth, 380 Mass. 706, 710 (1980); Freetown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415, 419 (1992). Special counsel for the Town of North Andover has previously concluded that: The State promoted the construction of the facility, organized communities to participate in the planning and development of the NESWC project, assisted in the selection of the site, acquired land through eminent domain, leased the land to the operator, issued a request for qualifications and a request for proposals to build and operate the facility, assisted in obtaining financing; approved the design and construction of the facility, issued an Environmental Impact Report, filed the application for and received a site assignment from the DEP, and acted as [C]ontract Community Representative under the NESWC Service Agreement. Letter from McGregor & Shea to Board of Selectmen at 3 (Feb. 19, 1998). In the Report of the Inspector General entitled "The North East Solid Waste Committee Project: Planning and Development of a Public Private Partnership," December, 1997, the NESWC project is described as a "public-private partnership that was planned and developed by the Commonwealth ... as a partial solution to the state's mounting solid waste disposal problems." Id. at 1. The Inspector General's report notes that the NESWC project was one of a kind -- "the only resource recovery project planned and developed by the Commonwealth that -was actually constructed." Id. at 4. At first, the state acted as Contract Community Representative under the NESWC Service Agreements, pursuant to which the NESWC communities are served by the resource recovery facility. Later, NESWC itself was given the status of a "body GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 3 politic and corporate" and declared to be a "public instrumentality" carrying out an "essential governmental function." St. 1988, c. 328. The NESWC powers include "planning and implementing ... construction, alteration, expansion, operation and maintenance of regional solid waste facilities, including ... [the NESWC] facility." Id. § 3(1). Since the facility, carries out an "essential governmental function" of the Commonwealth of Massachusetts on land owned by the Commonwealth of Massachusetts pursuant to a lease from the Commonwealth of Massachusetts it is not subject to local zoning controls. (b) The Facility Is Also Protected from Local Zoning by the Massachusetts Zoning Act A solid waste facility which has received a site assignment "shall be permitted to be constructed or expanded on any locus zoned for industrial use unless specifically prohibited by the ... by-laws ... in effect as of [July 1, 1987] . " M.G. L. c. 40A, § 9, para. 15. The facility is in an industrial zone of North Andover in which solid waste facilities are permitted by right. Pursuant to M.G.L. c. 40A, § 9, para. 15, zoning controls applicable to such facilities may be adopted after July 1, 1987, under certain limited circumstances not relevant to the facility. (c) The Existing Zoning Variance Encompasses the Emissions Control Project When the Board of Appeals issued a variance in 1982 allowing construction of the facility to a height of approximately 102 feet above the tipping floor elevation, the applicable height limitation for the land under the North Andover zoning bylaw was changed to that allowed by the variance. Because the emissions control project simply adds equipment to the existing facility, at a height lower than the existing facility, it is encompassed by the original variance for the project. (2) Why is MRI a "person aggrieved" by the Building Commissioner's decision that a variance is required for the emissions control project? MRI asked the Building Commissioner for a ruling on whether a variance would be required for the emissions control project. The Building Commissioner decided that a variance would be required. For the reasons stated above, among others, MRI is aggrieved by that decision. M.G.L. c. 40A, §§ 8 and 15, grant the right of parties with GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 4 a direct and substantial interest in such decisions to have the matter presented to the Board of Appeals for review. There can be no doubt that MRI, as operator of the facility pursuant to a lease from the Commonwealth of Massachusetts, has a direct and substantial interest in the decision of the Building Commissioner. See, e.g., Dion v. Board of Appeals of Waltham, 344 Mass. 547, 554-55 (1962) (a "straw" holder of legal title); Carson v. Board of Appeals of Lexington, 321 Mass. 649, 652 (1947 (applicant was a buyer under a purchase and sale agreement contingent upon the granting of a building permit); Martinelli v. Board of Appeals of Boston, 275 Mass. 169, 172-3 (193 1) (applicant who had oral agreement with landowner to buy or lease the land). (3) May the Board take into account matters such as the existing emissions from the waste to energy facility, in deciding whether issuance of a dimensional variance would result in "substantial detriment to the public good" within the meaning of Section 10.4 of the zoning bylaw and M. G.L. c. 40A, § 10? The Board should confine its consideration of the "public good" to those zoning matters which are within the scope of concern of the zoning bylaw as they relate to the nature and extent of the zoning relief requested. Here, the question is whether equipment which will exceed the height limitation of the zoning bylaw (when viewed within the context of the existing higher buildings and structures which have already been granted a height variance) will cause substantial detriment to the public good. A board of appeals cannot deny or condition zoning relief in a manner that exceeds its authority to administer local zoning laws. See, eg., Middlesex & Boston St. Ry. Co. v. Board of Aldermen of Newton, 371 Mass. 849, 858 (1977) (holding that a special permit granting authority could not condition a special use permit for multifamily housing on a set-aside of units for below-market rents because the policy decision underlying such a condition is beyond the jurisdiction of a special permit granting authority); Assessors of Dover v. Dominican Fathers Province of St. Joseph, 334 Mass. 530, 536 (1956) (holding that a board of appeals may not attach conditions to a variance that touch on the subject of taxes or exemptions from taxation because "[t]he zoning and taxing statutes are separate and distinct, and each is separately administered").' For example, the Supreme Judicial Court, in its Middlesex & Boston Street Railway decision, set the applicable standard for this issue, when it stated: "We hold that the administrative board authorized to pass on applications for special permits under the zoning ordinance is without power to make the important policy decisions involved in committing a municipality to a program of public housing ...... 371 Mass at 858 (emphasis GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 5 The issues properly considered by a board of appeals must necessarily reflect the nature and extent of the relief requested, and the scope of concern of the zoning bylaw provision at issue. While considerations relating to establishment of an incompatible use and preservation of the character of a zoning district are relevant in the context of a use variance, these considerations should not be relevant in the context of a dimensional variance. See, e.g., 3 Kenneth H. Young, Anderson's American Law of Zoning § 20.48, at 579-81 ("An area [i.e., dimensional] variance is thought not to threaten adjacent land with the establishment of an incompatible use, or to hazard the maintenance of a use which will change the essential character of a neighborhood."). Since the use of the facility is expressly permitted within the I-2 zoning district, considerations relating to the continued use of the facility are beyond the Board's purview. In this case, the relief requested concerns only one dimension -- height -- and seeks only to allow installation of emissions control equipment which will be lower in height than the facility's existing buildings and structures. The need for the added equipment in light of changes to the applicable emissions requirements under the Clean Air Act can and should be taken into consideration. In weighing whether the added equipment will cause "substantial detriment to the public good," the only relevant consideration before the Board is the proposed height of the equipment within the context of higher buildings and structures. The fact that the Board has previously granted variances for higher buildings and structures on the lot has a material bearing on that question. (4) May unique circumstances concerning structures (as opposed to unique circumstances concerning a parcel of land) justify issuance of a dimensional variance? Yes. The word "structures" in Section 10.4 of the zoning bylaw (patterned after M.G.L. c. 40A, § 10) would be meaningless if a variance could only issue due to hardship arising from "soil conditions, shape, or topography of the land or structures." Cf. Neff v. Commissioner, 421 Mass. 70, 75 (1995); Manning v. Boston Redevelopment Auth., 400 Mass. 444, 453 (1987) (holding that legislation "should not be construed in a way that produces absurd or unreasonable results when a sensible construction is readily available"). Indeed, courts have recognized that hardship adequate to support a variance exists where there is no other reasonable use for an "unusual, if not unique, added). GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 6 and substantial" existing building. Johnson v. Board of App. of Wareham, 360 Mass. 872, 873 (1972). See also Simone v. Board of App. of Haverhill, 6 Mass. App. Ct. 601, 603 (1978). (5) May the project be regulated as an extension of a lawfully nonconforming structure under Section 9.2 of the zoning bylaw? No. Consistent with the provisions of the zoning bylaw defining and regulating lawfully nonconforming structures, see Zoning Bylaw §§ 2.53 and 9.1; M.G.L. c. 40A, § 6, a lawfully nonconforming structure is generally understood as a structure that met all of the applicable dimensional requirements in a zoning bylaw when originally constructed, but does not today meet all such dimensional requirements due to subsequent amendments to the zoning bylaw. See Barron Chevrolet, Inc. v. Town of Danvers, 419 Mass. 404, 408 (1995). "This is distinct from a use [or structure] permitted by a variance. Such a use [or structure] cannot be a prior nonconforming use [or structure] because, by definition, a variance was required and it therefore was not allowed as a matter of right. " Id. (citing Mendes v. Board of App. of Barnstable, 28 Mass. App. Ct. 527, 531, review denied, 407 Mass. 1103 (1990)). Although the height of the existing boiler building and the existing stack are in excess of the generally applicable height limitations in an I-2 district, the waste to energy facility is not a "lawful nonconforming" structure, because height variances were required to permit its construction because it did not meet the applicable height requirement in the zoning bylaw when constructed. Therefore, the proposed additional structures clearly do not represent the alteration or extension of a lawfully nonconforming structure governed by Section 9.2 of the zoning bylaw or M.G.L. c. 40A, § 6. In addition, to the extent that the existing waste to energy facility was not constructed in accordance with the height variances granted by the Board, the facility would then become a protected structure pursuant to the 6 and/or 10 year statutes of limitation provided for in M.G.L. c. 40A, § 7. In any event, whether the facility is a protected structure or authorized by previously issued variances, it is not "lawfully nonconforming" within the meaning of the zoning bylaw or M.G.L. c. 40A, § 6 and interpretative case law. GOODWIN, PROCTER & HOAR LLP North Andover Zoning Board of Appeals May 19, 1998 Page 7 Thank you for your attention to and consideration of our research of the above matters. Very truly yours, Martin R. Healy cc: Kenneth L. Kimmell, Esq. Gail M. Lynch, Esq. Lawrence E. Kaplan, P.C. Peter G. Shaheen, Esq. Jonathan S. Klavens, Esq. SENATOR LOIS G. PINES FIRST Mi00LESEX AND NORFOLK ,. DISTRICT ROOM 50.4 OmcE TEL. (617) 722-1639 HOME TEL (6 17) 965.1633 FAX (6 17) 7Z2-12645 CC W MONWEALTH OF MASSACHUSETTS MASSACHUSETTS SENATE SATE HOUSE. BOSTON 02133.1053 Department of Environmental Protection Bureau of Waste Prevention One Winter Street — 9th Floor Boston, MA 02108 Attn.: Mr. Donald Squires Re: Municipal Waste Combustor Regulations Dear Mr. Squires: COMMIi EES: NATURAL. RESOURCES ANC AGRICULTURE 'CHAIR) FEDERAL FINANCIAL ASSISTANCE (VICE CHAIR) JUDICIARY ELECTION L+WS ENERGY April 30, 1998 As Senate Chair of the Committee on Natural Resources and Agriculture, I am submitting comments on the Proposed Municipal Waste Combustor Regulations as they pertain to mercury emissions. As the Department of Environmental Protection (DEP) explained in its report of July 1996, mercury contamination of freshwater fish is a major problem in Massachusetts, leading to the issuance of fish advisories for 48 of our freshwater lakes. streams and rivers. As the DEP pointed out in its July 1996 report, municipal waste combustors are the largest source of mercury emissions in New England. In tum, the largest sources of mercury in our solid waste stream are batteries and fluorescent lamps. have tiled legislation which would requite manufacturers of fluorescent lamps and batteries to establish recycling programs for these waste products in order to get them out of the municipal waste stream and reduce mercury air emissions. The bill also prohibits the incineration of batteries containing mercury and the incineration of mercury -added lamps used by industrial, commercial, institutional, or governmental facilities. DEP has supported this bill in the past and I urge DEP to continue to support it. The most effective way to reduce mercury emissions is to remove mercury from the solid waste stream. In order to further this important goal. I submit the following. comments on the proposed regulations: ...:f-.- iviareriais 3eparatton f 1an The proposed DEP regulations require that municipal solid waste combustor operators submit a materials separation plan to the DEP. This is a good idea, but the proposal needs to be strengthened. Materials separation and recycling are the best and most effective ways of reducing mercury air emissions. While mercury emissions controls in the stack are vital, the mercury is.then transferred to the combustor ash, which is then landfilled and thus still poses an environmental threat. As defined in the proposed regulations, the materials separation plan proposed by DEP appears to be more in the nature of a feasibility study. The proposed language allows the combustor operator to choose a "no -action alternative" -- in other words, to decide not to implement any materials separation plan at all. Instead of giving combustor operators this option, I urge the DEP to require solid waste combustor operators to develop actual materials separation plans which will maximize removal of all materials containing or contributing to the production of the most hazardous emissions. At a minimum, such plans should, with respect to mercury, require materials separation and recycling of batteries, fluorescent lamps, thermostats, thermometers, switches, and other mercury -added products. The DEP should set recycling goals that each plan must meet. The regulations should also contain a schedule of compliance checks on implementation of the plan, and penalties for failure to implement the plan. Proposed .Emission Limits for Mercury The proposed DEP regulations establish an emission limit for mercury of 0.028 m dry j dard cubic meter_(dscm), o�,1i 8i-p--e_rcent reduction by weight, whichever is Ir stringent. Vt2hile I applaud the DEP for choosinga numerical standard which is stricter than the federal standard of 0.080 mg/dscm, I am concerned that municipal waste mb coustor operators are allowed to choose the 85 perc d reduction d standard, even when It is lstrin ess gent. Under the 85 percent reduction option, there may not be much incentive to remove mercury from the waste stream through materials separation. Furthermore, the 85 percent reduction option may allow facilities to emit at levels significantly higher than the 0.028 mg/dscm standard. For example, it is estimated that the mercury emissions at the North Andover incinerator, even with an 85 percent reduction, would far exceed the proposed numerical standard of 0.028 mg/dscm. Itis estimated that an 85 percent reduction in mercury emissions from LbLat facility would result in an ern sions level of 0.083 ma/dscm, which would be three times higher than the proposed DEP numerical standard and would exceed even the more lenient federal standard of 0.080 mg%dscm.) -- In order to provide a greater incentive to remove =rcury from the waste stream and to encourage Tcilities to adopt and implement aggressive materials separation plans, I ur_ �e the DEP to require facil ties to meet the 0.028 mg/dscm numenca stannTar-doarir 85 percent reduction in mercury emissions, whichever i more `ent. This proposal, coupled w7th a requirement that municipa soli waste combustor operators implement materials separation plans, will ensure that we reduce the amount of toxic mercury eoine out of these facilities by reducing the amount of mercury ao�ing into these facilities. Frequency of Testing The proposed regulations require facilities to test for mercury emissions only once a year. Because the amount of mercury in the waste stream can be highly variable, however, testing should be done more Frequently. The state of New Jersey requires quarterly testing for mercury emissions and I recommend that Massachusetts require testing with the same frequency. Thank you for the opportunity to comment on these proposed regulations, which address an extremely important health threat -- the threat of toxic air emissions. Should you have any questions, please contact me or my counsel, Robert Ritchie. r Sincerely, Lois G. Pines r� Emc®n 3 Riverside Drive • Andover, Massachusetts 01810-1121 • (508) 682-1980 • Fax (508) 975-2065 January 15, 1998 Project 86458-001.000 Mr. D. Robert Nicetta Building Commissioner Town of North Andover Division of Community Development & Services 120 Main Street North Andover, MA 01845 Re: Massachusetts REFUSETECH Inc. Proposed Air Emissions Control Project Dear Mr. Nicetta: Thank you for taking the time to meet with Wheelabrator's David Raymond and myself in December. We appreciated the opportunity to describe the subject project to you, and having you explain the procedures for interfacing with your office at various phases of the project. During our meeting you offered preliminary conclusions, but requested the submittal of a letter with a list of the items discussed which need a formal response from your office. Accordingly, please provide your conclusions and requirements for the following: Item 1: Parking Spaces - Are additional parking spaces required? What is the approval process if the project results in a requirement for additional parking spaces? Item 2: Earth Removal - Will, a separate Earth Materials Removal Permit be required or will this activity be covered by the Building Permit? If the excavated soil is temporarily stockpiled off-site prior to being brought back and utilized on- site, will a different approval process be required? Item 3: Height Variance - Does the existing height variance cover proposed lower structures? IAN 1 6 Lgq� J Mr. D. Robert Nicetta January. 15, 1998 Page 2 You also stated that explanations and certain enclosures were needed to illustrate existing and proposed site conditions. To facilitate your review, I am providing three attachments with these details and request your clarification of the three items as discussed in your office. During your review, if you have any questions or require additional information, please call me. Attachments: Attachment 1 - Parking Spaces Attachment 2 - Earth Removal Attachment 3 - Height Variance copy: D. Raymond - Wheelabrator M. Killeen - Wheelabrator J. McIver - MRI Sf}�cerely, n ,l I ! i 41 J ` es J. Connolly ranch Manager Massachusetts REFUSETECH Inc. January 15, 1998 Proposed Air Emissions Control Project ATTACHMENT 1 Parking Spaces Item 1: Parking Spaces: Are additional parking spaces required? What is the approval process if the project results in a requirement for additional parking spaces? Discussion There are presently 52 parking spaces at the facility, 50 regular plus two handicapped. This is more than ample for the current and proposed usage. The zoning regulations do not appear to account for shiftwork, but the subject facility workforce is divided into four shifts working seven days/week, 365 days/year. Operations personnel work 12 hr/day shifts. The weekday/day shift is the highest usage period with 35 people at the facility. The other three shifts have five operations personnel each (i.e. 50 total employees at the facility). Attached is EMCON Dwg. Figure 1 entitled Parking Plan dated December 10, 1997. This drawing shows the current parking lot arrangement at the facility. All spaces meet or exceed the current 9'x 18' size standards. The two handicap spaces meet the size requirements for handicap spaces. The proposed Air Emissions Control Project will not result in an increased capacity or change in use of the facility. However, new buildings/enclosures which will result in an increased footprint area of approximately 18,000 sq.ft. are being added to enclose current outside operations, and new emissions control equipment will require the addition of one Plant Operator per shift, or four new employees. The total number of employees will increase to 54. Again, the highest usage periods will be the weekday-dayshift, when 36 employees will be at the facility. This will leave at least 16 parking spaces (31%) still available for visitors at the busiest times. Massachusetts REFUSETECH Inc. January 15, 1998 Proposed Air Emissions Control Project ATTACHMENT 2 Earth Removal Item 2: Earth Removal - Will a separate Earth Materials Removal Permit be required or will this activity be covered by the Building Permit?,, if the excavated soil is temporarily stockpiled off-site prior to being brought back and utilized on-site, will a different approval process be required? Discussion All excavation will be incidental to construction of the buildings, structures, and buried services for which building permits will be issued (Section 5.5 of Town of North Andover Zoning Bylaw). It is presently anticipated that soil excavated for the installation of foundations, buried piping and electrical systems, etc. will be temporarily stored, either on- site or off-site, prior to being reused on-site. Due to the congested conditions on site, it is anticipated that excavated material will need to be moved to a central stockpiling area, rather than be left next to the excavation areas. An estimated 3,000 cubic yards of soil will be excavated during the proposed construction. Most of this soil will be needed for backfill. Engineered fill material was brought in to level the site during original construction. Therefore, most of the excavated soil is expected to be suitable for backfilling of excavations for the proposed Air Emissions Control Project. Excess material not utilized for fill will be temporarily stockpiled on site or in a nearby off site location and utilized for regrading and contouring of the site. The area adjacent to (north of) the boiler building is the selected on-site location to stockpile this material. This location can be utilized to store up to 3,000 cubic yards of material. Attached is EMCON Dwg. Figure 2 entitled Soil Stockpile Area, dated December 10, 1997. This drawing is a partial plan of the site showing the on-site location and proposed method of temporarily storing soil before it is reused on site. For any soil storage, careful location, containment, and erosion control measures will be provided to prevent storage pile runoff into existing storm drains and wetlands. Massachusetts REFUSETECH Inc. January 15, 1998 Proposed Air Emissions Control Project ATTACHMENT 3 Height Variance Item 3: Height Variance - Does the existing height variance cover proposed lower structures? Discussion Two height variances were obtained before the facility was constructed. The first variance addressed the structures on site and the need for that variance was demonstrated by the height of the boiler. The second variance addressed the stack. Copies of these variances, recorded at the Registry of Deeds in April and June 1983, are attached. The emissions control project involves the construction of emissions control equipment located between the boiler building and stack, which will have a maximum height lower than the structures built under the existing variances. The Spray Dryer Absorbers (SDAs) are the tallest equipment that will be installed and the top of the SDA inlet ducts (the maximum height of these structures) will be approximately 11 feet lower than the high point of the existing boiler building. The relative heights of the proposed equipment compared to the existing structural heights are shown on the attached WAPC Dwg. No. 3810-1-101, Rev. B. A sectional view of the existing boiler building is also attached for your review (Rust Dwg. No. 03-27-112, Rev. 4). All other proposed equipment and structures (i.e., lime silos, ash/metals storage building, carbon silo, fabric filters, lime prep building, will be significantly lower than the SDAs and will not exceed 85'. Based on our discussions at the meeting, it is our understanding that the Town of North Andover does not generally require an additional variance for proposed actions that fall with the limits of existing variances. Ap * r NORTHEAST SOLID WASTE C0111MITTEE � �'�Y 530 Atlantic Avenue, Boston, Massachusetts 02210 • Tel (617) 443-1303 Fax (617) 443-1301 J February 20, 1998 Ms. Trudy Coxe Secretary Executive Office of Environmental Affairs 100 Cambridge St., Room 2000 Boston, MA 02202 ATTN: MEPA Unit; File #11485 Dear Secretary Coxe, This letter is responding on behalf of the North East Solid Waste Committee (NESWC) and its member communities to the Environmental Notification Form (ENF) filed for the Air Emission Control Project at the North Andover waste -to -energy plant (EOEA File #11485). NESWC's solid waste disposal contracts with the private owner and operator of this facility, Massachusetts REFUSETECH Inc. (MRI), require MRI to perform work necessary to satisfy any changes in law and NESWC to pay a portion of the costs incurred. The purpose of the Air Emission Control Project proposed for the North Andover facility is to provide for additional air pollution control equipment necessary to meet new air emission standards.' Implementation of this project will result in a net reduction in air emissions from the existing facility. Under the terms of the existing solid waste disposal contracts, MRI is required to provide NESWC with a statement of work to be undertaken in connection with a change in law. NESWC has reviewed MRI's proposed statement of work for the Air Pollution Control Project in detail. While NESWC concurs that certain modifications are necessary, its has notified MRI of 70 objections to significant portions of the proposed work scope. These objections relate primarily to MRI's failure to select the most cost effective options to satisfy the applicable environmental regulations including the choice of particulate control technology and MRI's inclusion of elements of work that are not required to satisfy the applicable environmental regulations. Notwithstanding its objections to certain elements of the proposed project_, it is NESWC's opinion that achievement of the lower air emission standards will result in a significant positive air quality impact. Meanwhile, the nominal increases projected for vehicle traffic, potable water consumption and sanitary wastewater discharges are not expected to result in any adverse environmental impacts. Since the environmental effects of the proposed project are clear and overwhelmingly positive, it is NESWC's opinion that the preparation of an Environmental Impact Report (EIR) is not warranted. 0 Printed on post consumer recycled paper Ms. Trudy Coxe February 23, 1998 Page 2 Since NESWC has a contractual and financial interest in this project, it is important that NESWC be notified if a site visit or consultation session is planned. It is also critically important that NESWC has an interest in being copied on any other comments you may received related to this project. Thank you for your cooperation in the regard Cc: David Struhs, Commissioner, DEP NESWC Board of Directors Si cerely, Steven M. Rothstein Executive Director 0 Memo To: William Sullivan, Chairman, Zoning Board of Appeals Richard Rowen, Chairman, Planning Board Gayton Osgood, Chairman, Board of Health From: Robert J. Halpin, Town Manager i Date: July 8, 1998 Re: NESWC and MRI Litigation —Arbitration Developments FU x� JUL ®1998 During the course of the permit review process of the MRI Air Pollution Control Retrofit Proposal, you may have heard reference made to the litigation and arbitration between the 23 NESWC Communities, who are under contract to bring their municipal solid waste to the MRI solid waste incinerator here in North Andover through the year 2005, and MRI, the plant operator. The thrust of these arbitration and litigation proceedings has been two pronged: ■ What will the total cost of the air pollution control retrofit be and how much should be charged to the NESWC communities under the contract given some optional elements MRI prefers to add to the design to enhance performance; and ■ What percentage of the total cost should be charged to the NESWC communities given the fact that they will receive a very small percentage of the improvements life cycle between now and the year 2005. There have been two decisions in the past month: ■ This week an independent third party arbitrator ruled that the NESWC communities should be charged a fixed flat base fee of approximately $35.5 million for the improvement. MRI had sought to charge the NESWC communities $42 million. Significantly, the arbitrator left enhanced design elements, which MRI has proposed but ruled that NESWC should not have to pay for the enhanced design. This is significant to North Andover since the proposed fabric filter "bag house" is the best technology available and should yield better emission performance at the plant. ■ In June, a Superior Court Judge ruled that, as matter of law, the contracts which the communities have with -MRI may violate the state constitution to the extent 0 Page 1 0 To: William Sullivan, Chairman, Zoning Board of Appeals Richard Rowen, Chairman, Planning Board Gayton Osgood, Chairman, Board of Health From: Robert J. Halpin, Town Manager i Date: July 8, 1998 Re: NESWC and MRI Litigation —Arbitration Developments JUL ®1998 During the course of the permit review process of the MRI Air Pollution Control Retrofit Proposal, you may have heard reference made to the litigation and arbitration between the 23 NESWC Communities, who are under contract to bring their municipal solid waste to the MRI solid waste incinerator here in North Andover through the year 2005, and MRI, the plant operator. The thrust of these arbitration and litigation proceedings has been two pronged: ■ What will the total cost of the air pollution control retrofit be and how much should be charged to the NESWC communities under the contract given some optional elements MRI prefers to add to the design to enhance performance; and ■ What percentage of the total cost should be charged to the NESWC communities given the fact that they will receive a very small percentage of the improvements life cycle between now and the year 2005. There have been two decisions in the past month: ■ This week an independent third party arbitrator ruled that the NESWC communities should be charged a fixed flat base fee of approximately $35.5 million for the improvement. MRI had sought to charge the NESWC communities $42 million. Significantly, the arbitrator left enhanced design elements, which MRI has proposed but ruled that NESWC should not have to pay for the enhanced design. This is significant to North Andover since the proposed fabric filter "bag house" is the best technology available and should yield better emission performance at the plant. ■ In June, a Superior CourtJudge ruled that, as matter of law, the contracts which the communities have with MRI may violate the state constitution to the extent 0 Page 1 that they might be read to require public dollars to be spent on a private venture, which will continue in existence after the exj*ation of the NESWC contracts. The judge has ordered evidentiary hearings to determine what share of the total cost should be charged to the NESWC communities. This could be anywhere from 10% to 100% of the $35.5 million figure referred to above. None of the above changes the design elements you have been considering. Significantly, however, the arbitrator has based the $35.5 million fixed base fee on an assumption that the local permitting process will be complete by August 1". Under the arbitration award $1,000 per day will be added to the base fee for each day in August MRI must wait for local permits. Beyond August, the arbitrator reserved the right to increase this adjustment. I am aware that we currently expect to complete the local process by August 40. The point of this memo is that neither decision have bearing on the local permit process directly, other than to establish the costs of permitting delays will not be borne by MRI but rather by each of the 23 communities. If you have any questions whatsoever on these decisions, please feel free to contact me. Enclosure RJH:map 0 Page 2 • .riJN-2S-2B'�✓= :: � � BERNSTEIPJ. �_IJ_HNER.KIMh1ELL 7-J_01" 0 P. nC BERNSTEIN, CUSENER & KIMMELL P.C. A7TORNSYS AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUS=f 12108 (617) 742-4340 Facsimile (617) 742-0170 E•mail:bck@tiac.net Jeffrey M. Bcrnstcin Weszem Massaciuserts Office: SLiccy L_ Cusbner 20 BANK ROW, SUITE 200 Kenneth L. Kir=ell ' P177SFIELD, MASSACHUSETTS 01201 Eiisabcth C. Goodrnan (413) 442-3773 Charles Harak. Facalmlle (,113) 442.3774 Erin M. O'Toole L E-mail: bckberk®bck.cam Suzanne M. La Mama • Aim A(IMMea Iv P"W=v in calMoma • Auo AemiUee til Pta=e n New Vont - and aafnct of columola CON=ENT LU AND PRi11MEGED ATTORNEY/CLIENT COMMUNICATION 5 it W3_s _c _ ZI 1u To: Robert Halpin, Board of Selectmen From: Ken Kimmell Date: June 15, 1998 Re: MRI Retrofit Enclosed is a rather e:.-traordinary decision by the Superior Court in the.,VRI v. NESWC litigation. At issue in that litigation is whether the NESWC communities must pay for 100% of the retrofit. The court finds that the service agreements on their face require the NESWC communities to pay 100% of the costs. However, the court found that this provision is unconstitutional to the extent it requires the NESWC communities to use public funds to pay for a private benefit.. The court states that further fact-finding is required to determine the appropriate allocation between NESWC and MRI. However, reading between the lines it would appear that the court would rule that NESWC is responsible for 20% of the cost, and MPd 80% (assuming a 20 year life for the equipment). This ruling, if upheld, is an extraordinary victory for all the towns. While I have not extensively analyzed its implications for North Andover in particular, it would not appear to change anything that the town is involved in with respect to the current permitting and the future host community asci eement. Please do not hesitate to contact me. h%CLIE.`tTStNAMMY_M0I. VAN 06/15/98 11:44 TX/RX N0.9867 P.002 0 ZUT=LXO as. SER.FJ'= rE I N . cusHNEP.2.K I Mh1ELL COXXON EXLTH OF XA8SACIUSETTS .1,,.„ XA887OWSITTS RWUSET2CH, INC., . Flaintitf, 1-4201 x LI h , Cl- BUPE=10R CO(MT CI711, ACTION No. 97-06071C P. Ma V=mm a DOD=, LIaD, MDR-Sa"T SOLID XABT3 CowaTTZZ' Tim CQ10�C871mAL= or xAaaxc IIs$PTs O"XcB ria ?HS X2r82$CTCR Q==XAL Aad 2caR t? A. CSAAZOLI, Defsadants. Mice sent /4/98 . J . C. QN PLaz xz. a FOA p&= 12V L.P. RAM I] `R47M -TONS itrn rmT„- CM-12RrrffT1MrJ..�1Ox .:i. CO2m, ltgr�e '=': _ THE 1� 2.� h�.p�`.$�.g :�Si_'� r►+.�xs v Al2 ACT . b D The plaintiff, Massachusetts Refusetech, Inc. ('MRI') has filed S.'i. .2 . G. this contract action i n _ .r iia seeking a declaratory judgment that { � the defendant, Northeast Solid Waste Co xmittee ($N£StiiC)' is responsible for certain costs under a contract. The matter is now before this court on MRIs motion for partial summary judgment regarding the same. For the fol,2ouing reasons, the motion is IIs - In the 1970s, through the efforts of the. Commonwealth of Massachusetts Bureau of Solid Waste Disposal (the 'Bureau"), negotiations began between NEswc and Univerzal Oil PrOdUctz, Inc. 12be NY -SWC =asmbar C==Uunitias are: ACton, Andevar, Axl►ngtvn, Bed -lord Scmborough, Euriiag:oa, Carlisle, Dracut. 2La=:L1tan, Lax4-ngtoa, •..racoln. MAncAest.er-by-trio-sea., mczth Andover, Korth Raading, Peabody, Tewksbury, xatertown, xenhan, west:ard' west Kow.bury, WrLJ=ingtaa and WInchesta. (t-ne 1 06/15/98 11:44 TX/RX NO.9867 P.003 BERNSTE IPJ, C SHNERIK I PINELL 7420170 P, 04 ('[TOP") , MRIs -pradacassar, regarding construction and operation of a resource recovery facility (the 'Facility'). The purpose Of the Facility was to provide a IoW cost and an efficient alternative zaethod of disposing the Member communities waste. In 1981, NES-Wc and mR1 entered into a contract ( the "Service Aq-reement") , the scope of which is the subject of this dispute. Under the Service Agre=ent, MRI owns and operates the Facility which provides a solid waste disposal site for the Member Communities, converting that waste to energy. The Service Agreement expires in 2005, at which t3206 MR.1 will still own the Facility, but neither party Will have any further obligations to one another. The disputa arises out of an amendment to the Clean Air Act of 3.990 that imgo&as incrsaa4ad air pollution ccnzrcl requirements on R waste -to -energy plants, including the Facility. Th,osa raquiraments necessitate the installation of additional air Pollution control equipment ('rhe 'Retrofit") into the Facility prior to December 19, 2000. For the purpose of this motion the parties have agreed that the to -2L1 cast of the Ret'-ofit t.n b6 appraxiMatsly $48.99 million. The Retrofit has a useful lite of 20 to 25 years. According to the Service Agreement, Nwwc has to pay for altsraticns and additions to the Facility that are required by c-haages in the law. See Section VII of the Service Agreement. MR1 seeks susneary judgment that, based on the language in ..he- Service Agrewzent, this court declare that NFS"wc pay the entire cost of constructing the Retrofit, the cast being $48.99 million. While NESWC does not dispute that the Retr'cfit is a requir*d chance to 2 06/15/98 11:44 TX/RX N0.9867 P.004 BERN. 7E I N, CUSNNER&K I PIMELL the Facility within SectionV- of the Service A dis ute _ Ag --gement, they P leis pasit.ian that NESiJC is rasgonsihle for cost without the ez=ire taking into account the value that XRZ will receive from the Retrofit after the year 2005. j. This court grants summary judyzent where the pleadings, depositiors. arss*,ners to rote ataxies z=o5 and admissions on file shoe Ra genuine issues Of aaterial tact and where tha Moving Party is entitled to judgment as a matter of law. Mass. R. Civ. f-AAUXA= v. ; 390 Mass. 4Z9, 422 (1983) Maas. SSG, 553 (2976). The moves arty head the burden of affirmatively de=onstra� } lng that there is no g�+enu_ine�`issuQ of material fact on svery relev6 'issue. ]party* ist""sh =222"r -A= v- '++�- -�.i� - 404 Hass . 14, 17 19 8 9 art { ? Once the maviZ4 Y es - the absence of a t=table issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material .act. Zd- at 17. "IAJ Pa"ty mnving for 510c2axy judgsaent in a case in which the oPpoausg party wi11 have the burden of proof at trial is entitled to s ?udqamnt if he (or sh+e) demonstrates by reference to matxrial desc}ibed in Kass. R. Civ. . P. Sr .hat the party oppos,ng t-to-*Ction has no reasonable expectation of proving an essential el event e f that pa='ty' s case . A Sm "h v- 1.ml-A3,Q, 414 Mass. 81. 86 (1993); — v V. (Canp,-a� I✓•,t-,r ^ = '42.0 Mass . 706, 3 06/15/98 11:44 TX/RX N0.9867 P.005 0 J;)h4-15-1T_'?B 12:55 BERN TEIN, CJSHNER24<IPIPIELL 74201^0 P.06 716 (1991) . Once the moving party establishes the absence of a triable issue, the party opposing the motion zest respond and allege specific facts establisbirig the existence of a material fact in order to defeat the motion. Pederson, 404 Mass. at 17. The cppc:sing party cannot rest on his or her pZQad =qs and mere assertions of disputed facts to defeat the motion for summa_r 3udgment. LaLonde V. P' -Ali=-, 405 Mass. 207, 209 (1989) . 1. Tat&'"2retat+on ai the s�T3 ! Aareesant, Section VZI(1) of the Service Agreement provides that the NE WC/Neaaber Communities are responsible for "the amortization of the total cost, including finanes costs, for the design and ccnstruction of, and any additional operation and vA intanancs coats resulting from any change to the Facility or cbAnge in the method of operation, Which is required by or results from: r (iv} an Uncontrollable circumstance. For the purpose of this Section, 'costs' shall i n_..r._.7 »d all iteas Which were treated as 'costs' with respect to the original cost of construction of the Facility, and shall include ea•calation and financing costs." (Emphasise added). The language in the Service Agreement is clear and unambiguous that NFSWC will4be rezpcnzibie for the total QQ I of the Retrofit. NZSWC avers that "cost" in section VII (1) means "costs' that were contemplated at t8e time of the original construction of the Facility. An affidavit from Al --ti E. Autio, one of the original rnsgotiators of the Service Agreement, states that 'it was never intended that XRI would reap ext--acrdinary profit from a change in the law at tha aYtinso of thra tf-ESWC C, -A t nitias.' Autia Aft. '1 24. '_'he definition of "cost" in Section V'IS is an inclusive one and a =Se clarification that 'cast" would include items that were covered 4 06/15/98 11:44 TX/RX N0.9867 P.006 0 11:56 BERNSTEIN.CUSHNEF3,KIPIMELL 7420170 F.0-1 during the original carnst-uction of the Facility_ Also, absent any suggestion from NWWC that the Service Agreement was not a fully integrated doCument, this court is bound by the unambiguous term "total cost" in the service Agreement. sae Kobavaagh_i V. arioz yenturea• Tic., 42 Mise. App. Ct. 492, 496 (1997) , Sao also T,0rjS fid; es of lies aehLse - - Incl. V. ccheft, 10 Maas, App. ct. 914 865 (1980). On interpreting the language of the service Ag:-eem+ent, this court carncludes that N7,5WC_ contracted to pay the total cast of additians aznd alteratians required by oranges in the lav, i.a., $48.99 Million, without pro -rating the east With MR1. II. Yii�lia Policy and MA ■achusg1ta Cangtitation. 'It is a fundamental principle of constitutional law trQquently declared that money raised by taxation can be used only for public purpcsea a-nd not for the advantage of private individuals.' Oyin4nn of Tnst-ires, 368 Xass. s8o, $9s (1975)(citations omitted). In examining the constitutionality of an expenditure using public moniez in an activity whvrQ thera.may be beamfits to private pa=nes, the crucial inquiry is whether the private benefits are primaryor merely incidental to the achievezent of the public purpose. Cf. Oninion nf Tum_, 368 Mass at 885. In making this inquiry, a caurt zaust consider jniter ali3 the follcwi ng factors: What-har tie benefit is available on equal ter= to the entire public in the locality affected; whether the service, or c=nedity supplied is one needed by all or by a 5 06/15/98 11:44 TX/RX N0.9867 P.007 0 JIJIJ-1 �-19'_ 8 12 : --G BEti'h 's7—F I NJ CUSHNER.'IX I PINEL L 7-420170 F . CIGI large number of tha public: whether tha' aenterprise bears directly and immediately, or only remotely and circumstantially, upon the public welfare; wnetrier, in so far as benefits accrue to individuals, the whale of society has an interest in having those individuals benefitted. Allvdcnn Realty Cor=rAt;nn v, Holyoke HQu_RinQ a1i}ho i y, 304 Mass. 285, 293 In the present case, the, above factors and t*ie summary Judgment record reveals that the benefit from thQ Retrofit, at least till the service Agreement terminates in 2005, is primarily conferred on the Member co=un ties. During this period,' the benefit to MRI is only incidental. However, after the Service Agreement terminates, MRI will become the pri=ary beneficiary of the Retrofit, with only incidental benefits, if any, to'the Member Cozuxanities. =his Court declares that so much of the Service Agrtem,ant that requires payment of tha Member Camcnunities public money for MRIs private benefit which is inc'_dental to t27e public benefit is unenlorceable' since it violates the Constitution and public policy. Int light cf the above, the cost of the Retrofit must be allocated between the Member Gcmmunities and MRI. An allocation is a question of fact that requires an evidentiary hearing. Such a detersainat{on is beyond the scope of this su-nary judgment. ''Period between installation. of the Retrcf_t and termination of the Service Agreement. a 06/15/98 11:44 TX/RX N0.9867 P.008 11:56 SERNSTEIN, CUSHNER"J. I NPIELL 74_117'0 F. iIa CAM «s P'ar tbs forecaing reasons, it is nervby Q$Z8.312 that the Plaintiffs Nctionlfar Partial Summazy Judgm=t Regarding Payment for Alterations and Additions Required for Compliance with the 1990 Amendments to the Clean Air Act is QZKO.Z. Dated: June (, 1999 0 Regj r," !,-. Quinlan Justice of the Superior Court M 7 ICTAL r.09 0 06/16/98 11:44 TX/RX N0.9867 P.009 0 617.44-1Z60 Etil,IIPCI,ir'fEI,ITALF-UTURES JG� po3 1:J 0S J UL ( LJ 23 NORTHEAST SOLID WASTE Co"IT TE.E' 530 Atlantic Avenue, Boston, Massachusetts 02210 • Tel (617) 443-1303 a Fax (617) 443-1301 MEMORANDUM, TO: NESWC Hoard of Directors FROM: Shawn Worster Steven Rothstein RE: Independent Third Party Decision DATE: July 6, 1998 ■aa as a■■a■■■■a as a a as a6aria.■a■a■.aa0aaaa0■■a..■aaaaa.■..a■.aa.a.......... We are pleased to announce that David Spencer, the Independent Third Party (ITP), has reached a decision on the capital cost of the retrofit. Mr. Spencer has ordered that MRI be paid $35.5 million to carry out the scope of work as detailed in his Phase I, II, and III decisions. This represents $8.3 million in savings over MRI's capital cost figure -- clearly a very exciting development in the continuing efforts to reduce the cost burden faced by the NESWC communities. Attached are the ITP's Phase III decision, detailing the capital cost determination, and a press release announcing the decision. We will discuss the ITP's decisiondn more detail at the Board meeting on July 2I. Please feel free to contact* us with any questions. 4 -Z Printed an pest consumer recycled paper 07/07/98 09:28 TX/RX N0.0246 P.003 N 61 r4431.:>60 E' VrRoNr'fE147PLRUTURES ANU_ . , 0 '�.coAPo�r� "H B-ffarct. MA 61790.xy49 (617) 275.&400 - AX (61?7 M -86T2 oav" B. spencer PAWdent W. Steven I. Comm Esq. Croodwin, Procter & Hoar UP Caunsalors at Law far MRI Exchange Placa Boston, Massachusetts 02109-288 141x. N chaa) T. Gast, Esq; Palmer & Dodge LLP Counselors at i.aw for NESWC One Beacon Street Boston, Masaaahuscas 02108 July 2, 1998 D8598028 R8: Massachusetts Refusitech. Inc. v. Palmer & Dodge LLP Cion No, 27!6071� 5,26 PO4/13e, .TUL Q" 56 OF: -24 Dear Mr. Corn'm and Mt. Cass; As the Independent Third Parry (ITP), jointly selected by both Massachusetts Refiisoteck Inc. C'MRr') and the Northeast Solid Waists Committee C1tMSWC"} to resolve matters regarding the above rcfhrenced disputa the ITT hcrrby Otdars that MRI be paid S35.300.0W by NESWC for the scope of work as more hilly described below. nix is a lump sum fixed price, and includes performance guarantees. The plant will be required to operate in compliance with applicable laws, regulations and standards in effect as erg July I, 1998. The schtdula of payments will(be developed by the ITP in Phase N. 1. This amomst is, deemed by therrP th as e Asir and reasonable price to be paid for design, insurance end bonding, construction, perrtiittin$. startup acid acceptance tasting for the air poilutian coMMl retrofit, but it riot Include amtingencios for extraordinary delays or events outside MRt's control. NI:J,SWC must pay all financing costs and sales tax. 2. AM submitted a scope of work oIn October to, 1497. which defined its proposed retrofit to comply with appr'icable changes of law, particularly the Clean Air Act Amendments. The price for accomplishing this proposed scope of work was estimated at approximately $43 million. 3. Or: November 13, 1997, NES WC abjected to the price, the scope of work. and the extent of essvironrsserrtal enhancements pra):61sed by MR1. Subsequent to that communication, NM and its angincera. Camp Dresser and McKee tcnU) and Hennin Richardsons Durham and (HDR), proposed that the work could be 2ceompli3hed for amounts between $'32 *=YC= PA EP f 07/07/98 09:28 TX/RX N0.0246 P.004 0 61744M-360 Et 1 r RCNNEN7ALFUTURES 526 P05/136 TUL 13" 'FE, OF : 24 million and $37 million. (These estimates were based upon a revised and/or reduced scope, of work.) 4. In the I'I'F''s opinion, the counusr-proposals by NESWC were in compliance with laws, but did not fully anticipate actual site conditions, or a.tternailvee Appiscable environrnental protection to the communiti" than the XM proposal. Y provided less S• In the I'1'P's opinion, the cost estimates provided by MRI were reasonable for the week deffrled In the original MRI scope ofwork document, but some of the work was unnecessary and/or did not take Rtll advantage of the existing infrastructure at the site. S. The M worked for several months with both MRI and NESWC. and their subcontractors and engineers, to redefine the scope of work in a manner that would provide the greatest environmental protection to the public~ but at the lowest cost to the Commun;tica. 7. The Iump sum fixed price set by the M does not include any Mount for MItI profit on the work to be performed. 3. Ic is the ITP's understanding $orn join mesdngs wish both MV and NESWC teat the scope oP work and price as defined by the FTP is acceptable. the work should proceed now to upgrade the existing Both Parties una:simousl Y agreed thrt impved environmental coturnls, TJmfng will be critical in order to complete the h� December 2000, and thus minimize comma*ry costs. work y 19 9. Thr proposed scope of work produces a retrofitted resource recover the North Andover Project capable performing to the highest environ project tal standards No ha f make expense was spared in the aftbrt to reduce emissions. When compieted the North Andover facility emissions should be equal to or below those of any resource rdcavery facility. . anywhere in the world. 1 �• The• dacisian to proceed with scrubb= and baghouses added substantially tc the cost; but will reduce emissions to levels well below the most stringent federal and state standards and/or guidelines -- some of which ata not even yet in effect, 11. Joint meetings held between the YTP and the U.S. Environmental Protection Agency and the Massaehtrsetts Department of Environmental Protection have verbally endorsed the final scepe of work as being fully consistent with applicable regulations and protective of health and the environment. A written endorsement is expected in the near Ruure. 12. In the evert the -stag enacts addit=onal recycling requirements a$ part of its implementation standards ofthe Clean Air Act, it is encouraged to do so Such added recycling npt been has included in the lump sum price because the ITP could not reasonably anticipate the regained changes at the time of award. 13. A scope 'definition was provided to the ponies by the ITp. ITP documentation was discussed frilly, (until them was no further disc 1998. The conclusions were finalized by the ITPean 7 ly I 8, and weent or irW on j�uriq 3C. momoria uzed in the a tat Phase i and Phase. II Decisions — two documents 14 and 33 pages in iengtk respectively, 14. The ITP adequate that the combination of the Phase I, Please R. and Phase M documents prravides adequate definition of scope;, price, performance and schedule. This documentation Provides protection to the communities that the work will be completed as defined. The F1EC7Y'CLE0 PAPiR 07/07/98 09:28 TX/RX N0.0246 P.005 M 61 "44,.� 1 Z760 EMM r Pot, VENTF;LPUTUPES 526 FICE:'061 JUL 07 `36 03:24 communities have =Urance$ that the with appwork, when completed, will with laws and regulations, Protection is Plea perform in aecordamr communities change the scope of work, cause dela _Pro` Provided to MRI that if the and re8ulations, hIItl will be entitled to additional y omp=nsstglon Since the finafnof deIilvery data cannot be rkJusted outward. MRI will also teceive added compensation if it has to acceieratce its work, 15- It is assumed in the $35. S million price that the work "has been defined as of jodi2y ',s data with respect to in banticipatedlbyy the M. on Juicable lAwl, ly 1 99ncm S effect- that it wall nchange. Or as they could be rrasonably 16, It is assumed Aria!»g ppasas that local permits can and wilt be issued to Mltt for the �'o� on August I, 1998 and that the Massachusettx Implementation p1 pr0MU18 ed, will be substantially consistent in all materiai res � whea far final comment. Accts with documents issued 17. Tittle Is of the essence. if local permit requirements are sot rally dnfrined in the next 30 da it is the rrP's opinion that NW will incur cwt aAtieipatsu that theta will be same dela Ina beyond the lump sum price. The g' Of North Andover, but cannot estimate the pRactuallt time b kmd boards uired in the Town Rather than satfrnating the time of delay. And adding such delay costs now to t necenae lump sum Price, a variable adJuetmottt fres bsatt made to the price. For the month of August, this adjustment shall be eat at SI000 per day. If fbr some reason Ioeal dslaycd beyond August 3I. 1998. the daily amount wi7f be adjusted upward by the I?Pts �6 t hoped and expected that this will not be necessary,it s 18. The S3S.5 million price set forth excludes the costs of financin costs, and delay costs. It also cxciudes changes to the a 8. extraordinary work r reasons outside MRI's control. �'hrse issues, among otijerg $ 1be� scap+e of work fcr IV decision. dressed in the Phase The rrP reserves the right to creaks adjustments to this pha� In decision in Phase IV based upon the discovery of new informstlon. CC.* M. Hepp, MRI S. Rothstein. NESWC RECY'CL60 PAPER .'7 •u 1• .. ... r • r , r . - .. Respectfully submitted, awl_ David B. Spencer, Sc, D. President 3 07/07/98 09:28 TX/RX N0.0246 P.006 0 617, 44Z1360 EN rf?0NNEN7F;LFU7UF,ES 52'6 P07,,1316 ,,135 ILL 07 -os 09:25 V6&C NORTHF.4ST SOLID WASTE COMMITTEE 530 Azl=tic Avenue, Boston, Massachuserts 02210 - Tel (617) 443-1303 • Fax (6I7) 443-1301 For Further Information Contact: Steven M. Rothstein Shawn Worster (617) 443-1300 FOR IMI MEDIATE RELEASE: NESWC Retrofit Capital Costs Finalized $8.3 Million Saved (Boston, MA July 6, 1998) The capital costs for the retrofit of the Wheelabrator/ Massachusetts Refuse Tech, Inc. (&= North Andover waste -to -energy facility has been reduced from $43.8 million to $35.5 million. Earlier today Dr. David Sperfcer, the Independent Third Party (TTP) announced this decision. This decision, pursuant to the te.-:ns of the Service Agreements between MRI and NESWC, is final and binding on the parties. The ITP was jointly selected by Wheelabrator and NESWC to resolve outstanding issues of design and cost of the facility retrofit. NESWC Board of Directors Chairman Robert W. Moroney, P.E., noted "This decision represents a $ 8.3 million dollar reduction in the cost of the retrofit, which will reduce the fintancia) burden on the contract communities." Dr. Spencer was brought in to help -resolve outstanding questions raised by NESWC regarding MRI's proposed approach to modifying the waste -to -energy facility located in North Andover. The project scope, selection of technology and conceptual design have been determined through this process. This facility provides waste disposal services for the 500,000 inhabitants of the 23 communities comprising NESWC. The Facility must be retrofitted with additional air pollution control equipment to bring it into compliance with the Clean Air Act Amendments of 1990 by no later than December 19, 2000. Dr. Spencer noted due to the construction and design schedule that time is of the essence. Dr. Spencer stated "I was delighted to have been asked by both NESWC and Wheeieoracur co heip chem on rnis important project. By working together, NZS Svc:' and Wheclebrator arrived at a design which offers the highest level of emission control anywhere in the world — at a cost which is affordable and attractive to the communities. %I Printed on post consumer recycled paper 07/07/98 09:28 TX/RX N0.0246 P.007 N 61744,:;1_6"« ENV1FONr18,47ALFU7URES 526 P08,436 TUL Q7 "FS Q3: c5 As a NESWC citizen with children and grandchildren Iiving in the area, it is comforting to (snow that no expense was spared for environmental controls. After the retrofit is implemented, the plant will operate well below the Most stringent federal and state emission standards anticipated now, or in the foreseeable future. I am most satisfied that the retrofit eliminates any rational cause for environmental or health concern. The challenge that now lies ahead is to bring the permitting process to a rapid conclusion, so the improvements can be implemented without added cost to the communities for delays." Steven M. Rothstein, Senior Advisor to the NESWC Board, commented "The significant savings Dr. Spencer and his staff, MRI and NESWC's engineers were able to identify will help keep teachers, police, fire and other public services in place in the NESWC communities. We appreciate the hard work and effort of all concerned over the past several months." Mr. Moroney added, "NESWC recently won a court decision whereby the NESWC communities will pay for a portion rather than 100% of the cost of the retrofit. Together with today's decision, this means millions of dollars in lower retrofit costs for NESWC taxpayers." Mr. Rothstein commented "The Independent Third Party's decision is a major milestone in terms of the NESWC project. It is critical that we move forward in implementing the retrofit in light of today's decision, the compliance deadline, and the negative consequences of delay on the environment and the economic aspects of the project. " The NESWC communities are Acton, Andover, Arlington, Bedford, Belmont, Boxborough, Burlin -ton, Carlisle; Dracut, Hamilton, Lexington, Lincoln, Manchester - By -The -Sea, North Andover, North Reading, Peabody, Tewksbury, Watertown, Wenham, Westford, West Newbury, Wilmington, and Winchester. Ed. Note: Copies of The Independent Third Party decision may be obtained by calling Jennifer Regan at (617).443-1303. 07/07/98 09:28 TX/RX N0.0246 P.008 0 that they might be read to require public dollars to be spent on a private venture, which will continue in existence after the eviration of the NESWC contracts. The judge has ordered evidentiary hearings to determine what share of the total cost should be charged to the NESWC communities. This could be anywhere from 10% to 100% of the $35.5 million figure referred to above. None of the above changes the design elements you have been considering. Significantly, however, the arbitrator has based the $35.5 million fixed base fee on an assumption that the local permitting process will be complete by August 1St. Under the arbitration award $1,000 per day will be added to the base fee for each day in August MRI must wait for local permits. Beyond August, the arbitrator reserved the right to increase this adjustment. I am aware that we currently expect to complete the local process by August 4"'. The point of this memo is that neither decision have bearing on the local permit process directly, other than to establish the costs of permitting delays will not be borne by MRI but rather by each of the 23 communities. If you have any questions whatsoever on these decisions, please feel free to contact me. Enclosure RJH:map 0 Page 2 AL Wheelabrator Environmental Systems Inc. A Wheelabrator Technologies Company Liberty Lane Hampton, NH 03842 Mr. William J. Sul:ivar Zoning Board of Appeals 405 Salem Street North Andover, MA 01845 rry Phone 603.929.3366 Richard T. F Fax 603.929.3123 Vice President Marketing July 17, 1998 Subject: Publication in the German Medical Journal on Potential Health Risks by Emissions from Refuse Incineration Plants" Dear Mr. Sullivan: Attached herewith is some additional information from Germany regarding the safety of refuse incineration plants, which has recently come to my attention. You may be aware that the Germans were the first to study a possible connection between waste -to -energy plants and dioxin, back in the middle 1970s, and have since spent significant amounts of time and money tracking, studying and evaluating the health risks associated with emissions from Germany's numerous waste -to -energy plants. As you may know, Germany enjoys an advanced technological society, with 5igrliiicanl waste disposal needs a desire to pleser ve land and has a very strong environmental movement. While the English translation may be a little cumbersome, the attached statement clearly illustrates that the German equivalent of the United States' American Medical Association (AMA) says that modern waste -to -energy (WTE) plants represent a negligible health risk. This translation is from Martin GmbH, the provider of the combustion grate technology which is used in the North Andover facility. This translation is particularly helpful in view of the discussions concerning the North Andover Plant Retrofit. Primed on recycled paper This conclusion by the German Medical Society, in the face of continual environmental group scrutiny, coupled with the fact that Germany will be adding approximately 14 new large-scale waste -to -energy plants in the former East Germany, indicates a strong sentiment of safety of operation. We concur, and hope that you find the information useful as well. If you have any questions or would like more information, please call. Very truly yours, fhard T. Felago Attachment cc: David Minott Sandy Starr sAfe1ago\rtf\1597.doc 4 13 for Umweit- and Energfetoc hniic 7M) 28 January 1993 Ga/A8 SUBJECT: Publication in the Oerum xadiaal Journal on "Potential Health Risks by Emi"ions from Refuse Incineration plants" The German Medical Journal (Deutschss Arzteblatt), Issue i/2 of it January 1993, published an article of the Brains Trust of the Federal Medical Society (SPissenschaftlicher Heirat der Sundes- Arztelca=mer) on the "Potential Healths Risks by =missions from Refuse IncineAtion Plants" with a preface written by Dr. mad. R. ' vilmar, President of the Federal Medical society of the Federal Republic of Germany and of t$.%* Gorman Medical Convention (Deutscher Arztetaq). This article represents the official state- ment of the supreme medical committae of the Federal Republic of Germany on the issue of refuse incineration. The Brains T --=t of the Federal Medical Society states that by the operation of refuse iavinosatioa_.plants which are in ksspiiq With the tech" Cal developments the lcsalth risks to be Meted for the Popnlatioa livinq J2L the nsighbaarhood-of suah plants are oalp eztreasly low and can taus be classified to be aegligible. The. mainstatements of the individual sections are as.follows: The present statement subjects the emissi=5 of various pollutants of refuse incineration plants to a critical analysis under the aspect of toxicology for human being and environment. It chould be understood as a contribution to the possibility -of proper judgment formation. EU= da W11. fOr Umwelt- and Energietechnik The Federal Medical Society expressly points out that it is not t2Zair 0121ectivs to favour refuse incineration; this is only =w alternative -to dispose of the waste produced. They give nigh prefarencs to refuse izzcfneration and material recovery. 1. PX21I -' -2 -Y emarkst In the past years -concerns have been -spread both by the population and by the medical satabl.iahment with regard i to diseases caused by emissions from refuse incineration. For this reason the Federal Medical Society fools com- pelled to give material information and commentary on the medical risks resulting from additional Loads by emis- sions fr m refuse incineration plants. a. Present Situationand 1`2morta ce of gous*holcl Re use Ia- cineratlon in th9 Fedesa.l Aepubli.c of Germany In the old Under of the Federal Republic 49 incineration plants are presently in oparation, in the new Under of the FRG only one. Altogather approx. 9 million tonnes of municipal waste are thermally treated ovary year. About 20 f=".,I r plants are in the planning stage or already under construction. Tha aim is to destruct organic cam - pa=nts and to spare- the space available for landfilling. Only biological and chemically inert material_E.hould be taken to final storage. 34 E5m l uat; en ofsaio _ froa3L RefusB_ I�ineeratioa Plant 3.1 Basis o!yalu,�ti The publication of the Federal Medical Society judges in Particular the *missions from modern refuse incineration Plants which are in kssping with the requirements of the 17th Federal Emissions Protection Act Stipulation (17. BImSChV) and with the requirements of the General Waste Water Rule to the Water Balance (waste Prater-free) (Rabmen-Abwasser-vervaltungsvorschrift zum Wasserhaushalt C abvrasserfrei)) . t�• tar Umweft and Energietechnik Fa—mi older- waste incineration plants may differ from modern Plant s by magnita"s as regards thair =iaaion behaviour. Tharatore, wtay require ratrotittinq Within reasonable time to be in keeping -with the standard provided by law. According to the Federal Medical Society only the ma- terial quantity having areal effoct•on the human beings and/or being.absorbed is of medical rslavanca>for the toxicological evaluation of t:ts omissions from. refuse incineration plants. Additional loads can only be of medical -toxicological importance if .they contribute considerably to the total exposition. An evaluation nay consider the limit values of the German Emisaion Control Regulation (TA Luft), the maximum in - mission concentrations (ASIC values) of the .C=Missicn of the Getman society of Mechanical Engineers "Air pollution control" (MIR-Werte der VDZ-30=iseicn "Rainhaltung der Luft"), the standards of the WW for the Air Quality in Europa and other publications of the WED. When observing these values an adverse effect on - the health of the pop- ulation - children, old and ill people included - is not to be expected. 3.2 Basically, there are -to be considered *missions of " =inorganic gases metallic compounds - organic cempounda. 3.2.1 omissions at Znore=anir• Gaae� t�0�. HC1' NOS. COQ Of q"at it importance for the evaluation of. immissions of inorganic gases are the temporary load peaks. This ad-. ditional load, which occurs in the imm.ission n='W"TM of the plant, is, ho"ver, tar below i pastern .of the values for the observation -of which health risks ars not to be expected. i dE MI- far Umweit- and Energietectmik Tho occasionally expressed statements that cases of false c; cup diseases have been occurring mora frequently is thy: i=issicn area of old refuse incineration plants, could not, be proved scientifically up to now. Allergic reac- tions or other hypersensitivities, above all asthmatical diseases, may occur morn frequently in ccm=.bations. There are refarenceg to a connection with immissions fr= the motor -vehicle traffic. The portion of refuse incin- eration'in the total icmission load is low so that this source plays no important part amonq the potential cauaars. 3.2.2 Tex{ cel og ca IV Re'== M@tallic (pb► Cd. As, Cs, Hi. 99) The great Majority of metallic compounds occuring in flue gas are for the most part bound to particles. Special attention is paid to metals suslscted of carcinogenic potential for the human beings such as arsenic, cadmium, chromium and nickel. The immission considerations in- dicate that. even in rural areas by the operation of a aodern refuse incineration plant a possible inereasa of cancer risks by metallic Cie is law so that it car --Wt be quantified. An influence by dust deposits in the neighbourhood of refuse incineration plants on the food chain can still not be quantified sufficiently. There aria required specific investigations regarding this issue. 3.2.3 =iesiane cf Q=RZic C=20=da f MA RAuse 2nciME=Ati o Of Particular importance are in addition to PCDD/F also benaenss, Phenols and other chlorinated derivatives. 4 - S - .h.t•.r, G fir Umweft- and Energistechntk 3.2.3.1 7e1Yevc ie Arrmatic Wr=arjsoas (PEES The large group of PAR comas for the moot part I.-= emissions from coal heating plants, motor -vehicle traffic and coking plants. An additional immission,load in the neighbourhood of .refuse incineration plaints is of ' the order of 65 pq benzo(a)pyran/m3. This value is extramoly love Thw basic load in rural areas is 1,000...2,000 pq 3.2.3.2n� C!�lori rtata� A�ttiet�As and `Z_ wn 1 as P2 h7 or na ed Ranh rwla 2n the ambient air of residential districts beasene contents between 3 and 30 µg/m3 (mainly due to motorized vehicle traffic) ara found. The max. additional load by the operation of refuse incineration plants is of -the order of 0.00008 gq/m3 and thus far below the basic load. 3.2.3.3 Z= and ACDF Investigations have shown that the PCDDs/?CD'F's contained in refuse are destructed to a large extent and form again only after incineration by catalytic processes during the cooling phase of the flue gases. Existing refuse incin- eration plants today emit 1,000 ... 10,00.0 pq I-TE/m3 in they Federal Republic of Germany. The quantities of dioxins and furans discharged into the environment by industrial sources as. well as by motor -vehicle traffic and domestic fuel are a multiple of those quantities. In case of modern refuse incineration plants which have to meet the new limit values of 100 pq I-TZ/m3 the =is- sion value is once wore reduced by the factor 10 to 100 which corresponds to an additional load of 0.001 pq I- T8/m3. $van in rural areas this doe® not lead to any measurable increase. when evaluating the additional loads by F=D/PCD? in a conventional manner, there is one additional case of cancer disease among 100,000,000 to 1,000,000,000 persons w1um ingesting 0.1...1 fq/kg,per body weight for lffetims. i 6 IUMU dEM fOr Umwelt- and Energietechnik CMD Even when considering the possible additional load through the food chain the possible risk remains extremely low. 3.3 E�-�i�agfnre of _m9mmm aSerials Thera are missing any references to a latent .and unclear toxicity of flue gas emissions. 3.4 Wit! the Genaral Waste Water Rule.to•the Water Balance the waste water -free operation of a refuse incineration plant is basically stipulated. 4. SAY .7t: oma�es aborts When evaluatinq possible health risks by refuse incin- eration, plants, a diffsrance is to be made between the existing plants which are still not.in kaupinq with the requirements of the 17th Federal Emissions Protection Act Stipulation (27. DZm9chY) and modern plants. Modern plants are today equipped vitt= a more advanced flus gas cleaning technology so that their contribution to the, adverse environmental impact by Manic and inorganic materials is not considerable. The calculated additional immission loads of inorganic gases which will coma from refuse incineration planta are tar below the background loada in rural areas. Also the emissions of tnxico- logically relevant metallic compounds can be reduced by technical measures to such an extent that the maximum expected additional exposition is less than 0.1 percent of the basic load. The applScation of more advanced exit gas technologies will also considerably reduce the emis- sions of organic materials.and yield additional loads which are comparatively low from the medical -toxico- logical vine. Due to the largely unspecified separation. efficiency of these technoloQias. this is basically applicable also to still unknown exit gaa components. ' ' fOr Umwett- and Energietechnik The additional irmission load with PCDDs/P=re from modern plants can hardly be determined for the adverse environmental impact and does not lead to any relevantly increased exposition of the population living in the fission area of a modern plant. Further:u=, occasionally rxpresaod stataments that in the rneighbourhood of -existing waste incineration -'plants spaci.ic syndromes such as mal -formations and cancer diseases occur more frequently could not be confirmed or verified up to now. Individual observations are not suitable to produce evidence for causal connections. They require careful clarification under consideration of all clr==StanCes. ACC=dinq to the knowledge so far there cannot be established a causal connection between any of ' thaso disease findings ' and immissions fr= refuse incin- eration plants. The judgment as mads sb we that by the operation of refuse incineration plants which are in keeping with the technological developments the health risks to be ex- pected for the population living in the neighbourhood of such plants are only extramely low and can thus be.cla.s- sitied as negliq ble. For existing plants which still do not meet the requirements of the 17th Federal Emissions Protection Act Stipulation (17. B=SchV) ratrofittinq provided by law is required for preventive reasons. can of the original publication attached. 3aC1.. JUN -03-1998 16:00 BERNSTEIN,CUSHNER&KIPIMELL FAX COVER SHEET _ i C ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 Telephone: (617) 742-4340 Facsimile: (617) 742-0170 E-mail: kkimmell�,}abek.com www,bek.com 7420170 P.01 �Ft iL DATE: June 3, 1998 CLIENT/CASE NO: N AN/WHEMER TO: Mary 1ppolito FACSIMILE NO: 978 688-9556 FROM: Ken Kimmell COMMENTS: Enclosed is a cover letter and legal memo Ier the ZSA. If It is not too late, please put these documents into their packets. Thank you, NUMBER OF FADES (INCLUDING COVPA SHEET) BEING TRANSMITTED, - 4 9 06/03/98 15:51 TX/RX N0.9658 P.001 0 JUN -03-199 16:00 BERNSTEIN,CUSHNER&KIMMELL 7420170 F.02 BERNSTEIN CLSHNER & KIM.MELL P.C. ATTORNBY,S AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E-mail:bck6tiac,net ,leffrey M. Bernstein Stacey L. Cushncr Kenneth L. Kim -ell Elisahntb C- Goodman .. Charles Harak Erin M. O'Toole Suzanne M. La Manda • Also Atlminod to Presliea in calif&mie • • AVW AdMrd d to OmMiee in NOW YOtk and District of coltm4bla June 3, 1998 BY FACSEM3LE: 978 6$8-9556, AND BY FIRST CLASS M.AI.I.. Mwlbers of the Zoning Board of Appeals of North Andover North Andover Town Hall 120 Main Street North Andover, MA 01845 Iia: MRI Zoning Variance Dear ZBA Members: Westem Massachusetts Office: 20 SANK ROW, SUITE 200 PITTSFIELD, MASSACHUSETTS 0120t (413) 442.3773 Facsimile (413) 442-3774 E-mail: bckberkQbek.com Enclosed please find a memorandum relating to certain legal issues raised by MRI in the zoning varianaa procee &ing. I will be attending the June 901 hearing and will be happy to discuss these issues further with you at that time. cc: Martin Healy, moi• Gayle Lynch, Esq. Robert Halpin i�lcliedaslmmlabmeletl .na,1 Sincerely, iet L. 06/03/98 15:51 TX/RX N0.9658 P.002 0 TUN -03-1998 16100 BERNSTE I IJ, CUS HNER&K I MPIELL BERNSTEIN. CUSHNER& K LL P.C. AM)RNFYS AT LAW 7420173 F'.0 ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E-rnaii Jeffrey M. Bernstein Stacey L. Cushner Kcanoth L. Kimmcll " Elisabeth C. Goodman " Charles Hank Erin M. O'Toole Suzanne M. La M=ia 'Aldo ACmRtPd to PreefiCe 7n caufomu • • Also Admltt d to PmOioo in Ntw Yolk and 0lghjcrof Columbfe MEMORANDUM Westem Massachusetts Office; 20 BANK ROW, SUITE 200 PITTSFIELD, MASSACHUSETTS 01201 (4i 3) 442-3773 Facsimile (4i S) 442.3774 E-mail: b0kborkGbck.ccM To: North Andover Zoning Board of Appeals From: Ken Kimmel], Charles Harak, Bernstein, Cushner & Kimmell, P.C. Bate, June 3, 1998 Re: MW Zoning Variance You asked this firm to provide you with guidance on certain legal issues raised by MRl in this variance proceeding. Specifically, you asked our opinion as to the following 1) whether MRI is exempt from local zoning under governmental immunity principles; 2) whether MRI is exempt from zoning under a zoning statute exemption for certain solid waste facilities; and 3) whether the existing variance already allows the additional components to be installed by MRI. This firm has carefully reviewed the arguments advanced by MRI. Fortunately, we were already fa:t0ar with some of these arguments, as we were retained by the Board of Selectmen approximately eighteen months ago to analyze the local regulatory requirements that apply to this facility. In our view, the three arguments presented by MRl raise difficult and novel issues of law and fact, and reasonable minds could disagree on them. However, on balance we believe that MRI is subject to local zoning, and we therefore recommend that the Zoning Board of Appeals reach the merits of the variance request. L MRI IS NOT EXEMPT FROM LOCAL ZONING UNDER GOVERNMENTAL IN MUNITY PRINCIPLES MRI argues that it is "immune from zoning„ because MRY is performing an essential govenunent fimetion. Massachusetts courts have consistently held, "[a]s a general proposition, [that] the State and State instrumentalities are immune from municipal zoning regulations, unless a statute otherwise expressly provides the contrary." Inspector of Buildings of Salem v Salem State College, 28 Mass. App. Ct, 92, 95 (1989). More directly on point, the Appeals Court has 06/03/98 15:51 TX/RX N0.9658 P.003 N JUN -03-1999 16.01 BERNJ.STE I N s CUSHNEP&K I NMELL 7420170 P-04 North Andover Zoning Roard of Appeals Page 2 June 3, 1998 held that a regional refuse disposal district is not subject to local zoning in operating its sanitary landfill. Freetown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415 (1992). Mita is not automatically exempt from local zoning, however, because MRI is itself neither the state nor a political subdivision of the state. in order to determine whether MRI is exempt from local zoning, it is first necessary to examine carefully the scope of the exemption as defined by the courts to determine whether MRI, as a private party, can claim any exemption. Even if MRI is exempt from zoning in some circumstances, it still must be determined whether the exemption would reach the precise construction activities MRI proposes.' While this issue is a close call, and MRi presents strong arguments in its favor, in our opinion MRI does not fit within the limited exemption from zoning which is available to private entities that perform essential public functions on behalf of the state or its instrumentalities. Teasdale v. Newell, 192 Mass. 440 (1906), is the first case to clearly establish the principle that local zoning laws cannot frustrate the Commonwealth's efforts to carry out essential governmental functions. In that case, the Court held that a contractor who had contracted to complete the grading work on park land owned by the Metropolitan District Commission could operate astable "reasonably necessary for the prosecution of the [grading] work," without being subject to the usual local licensing of stables. Crucial to the decision in that case, the governmental entity (the MDC) had specifically "sanctioned" the operation of the stable as necessary for completing its goal. Id at 442_ Thus, a private party seeking the zoning exemption must be engaged in work necessary for carrying out the Commonwealth's purposes. All of the cases which MRI cites for its exemption argument involve the government itself seeking the exemption from the local zoning authority, or an agent of the government carrying out activities which are essential to completing the work mandated by the government. In Freetown, supra, for example, the Greater New Bedford Regional Refuse Management District, "a body po izio of the Commonwealth," itself operated the sanitary landfill, and itself argued to the zoning board of appeals that it was exempt from the zoning by-law. 33 Mass. App. Ct., at 416-417. In Teasdale, as noted, the MDC itself had approved of the operation of a stable as necessary for completing the construction work at an MDC park. In Inspector of Buildings of Salem v. ,Salem State College, 28 Mass. App. Ct. 92 (1989), the Massachusetts State College Building Authority itself constructed the dormitories at issue and argued for the exemption. in ,Medford v. Marinucci Bros & Co., Inc., 344 Mass. 50 (1962), the contractor was completing an interstate highway construction project on "land owned by the Commonwealth" and "as the agents of the State in ' While lessees of government land, such as MRI, are sometimes exempt from local zoning requirements, they have also been found to be subject to zoning laws, depending on the precise activities the lessee carries out. See "Applicability of Zoning Regulation to Nongovernmental Lessee of Government -Owned Property," 84 ALR3d 1187, 06/03/98 15:51 TX/RX N0.9658 P.004 N JUN -03-1999 16:01 BERNSTE I N, CU!91 WER8:K 1 MMELL 7420170 F. 05 North Andover Zoning Board of Appeals Page 3 June 3, 1998 exercising the authority of the sovereign aver its own property." Id., at 54-55.z In contrast to these cases, MRI is not a governmental entity. It is a private, for-profit corporation. Thus, unlike the regional disposal district in the Freetown case, supra, or the College Building Authority in the Salem case, supra . MRI can only make a derivative claim for zoning exemption, through either the Commonwealth of Massachusetts or through NESWC. in our view, the problem with claiming a derivative exemption through the commonwealth is that the commonwealth never intended for this to be a state facility exempt from local zoning. Instead, the commonwealth's position was that the facility would receive support from the commonwealth, but would be a privately operated, local facility. This is reflected in the early project documents and early history of the project, For example, as early as June 3978, the Commonwealth's Bureau of Solid Waste Disposal (BSWD), in the Draft Environmental Impact Report (DEIR) for this project, emphasized the primacy of local (rather than state) control over the project. [qrb ical to understanding the function of this UDEIIt] is the nature of the decision-maldng process. Specifically, the Commonwealth .... is in a real sense limited within the existing institutional setting in the types of decisions it can make and in the degree of control it has over the choices among alternatives.... [T]he basic decisions are, in the final analysis, up to the many local governments involved.... (T)he decision to implement rests with the many communities that might participate and who must solve their solid waste disposal problem one way or another. Id, at iii. Consistent with this original understanding, by the early 1980'x, the state had'minimal involvement with the operation of the MRI facilities. (See the December 1997 Report of the Inspector General regarding the MRI facilities, p. 30) These facts stand in sharp contrast to the relevant Massachusetts oases, in which the zoning exemption was sought by the government .agency itwK or by an agent mandated by the Commonwealth to carry out the challenged activity - The 1978 DEIR also listed the many local permits the resource recovery facility would have to seek, including approvals from the Planning Board, Board of Health, and, most importantly, the Zoning Board of Appeals- Id, at 65-70. Even more tellingly, when one local resident of North Andover commented that the facility as proposed would violate the applicable height limit in the zoning bylaw, the BSWD stated that "the design, construction and operation of the proposed Facility shall be subject to applicable local laws and regulations." FEIR., p. 22, 3 By contrast, in Village on the Hill, Inc. v. Massachusetts Turnpike fluth0?V, 348 Mass. 107, 118-119 (1964), the S3C held that "excess" land held by the Authority would not necessarily be exempt from Iocal zoning, when occupied or used by a private party - 06/03/98 15:51 TX/RX N0.9658 P.005 0 .- - .,a , { k t, �A, �•"� .. e. .. .. .. !� , a ... - �.... -fitt,)). - JUN -03-1999 16.02 BERNSTE I N, CUSHNER R I MMELL "420170 P-06 North Andover .Zoning Board of Appeals Page 4 June 3, 1998 responding to a comment letter published on page 74 of the FEIR. Thus, the commonwealth never believed that this facility was exempt from local zoning under sovereign immunity principles. Instead, it expressly characterized the activities of the resource recovery facility as local actions subject to local zoning control, and expressly noted that the facility was subject to local zoning.' MRI also seemed to share this understanding in the early years of the project. In 1982, it obtained a height variance for the boiler building, raising no objection to the jurisdiction of the zoning board. Its own conduct can be read as reflecting its belief, at least as of 1982, that it is subject to the zoning by4aws. r In .1983, the Town of North Andover floated Resource Recovery Revenue Bonds pursuant to G.L. c. 40D to finance the construction of MRI's facilities. G.L. c. 40D, §21(h) specifically provides: The establishment and operation of solid waste disposal facilities hereunder shall be subject to- applicable laws except as otherwise provided herein. All of this early project history strongly suggests that this facility was always intended to be subject to local regulation. In our view, the early, contemporaneous understandings of the commonwealth, MRI, and the town are entitled to great weight, and should not lightly be disturbed by a new legal interpretation. MRI has a stronger argument that it is exempt, derivatively, from zoning regulation because NESWG itselfwould be exempt. N1ErSWC is a "body politic and corporate" which shall be considered "a public instrumentality." in "the exercise of its powers [NESWCj shall be deemed to be carrying out "an essential governmental function." St. 1988, c. 328, § 1. Were NESWC itself constructing the proposed air pollution control improvements, or were MRI truly a contractor or agent of NESWC's, the zoning by-laws would not apply. See, Freetown, supra (regional disposal district is a body politic and corporate carrying out essential pubtic purpose, 3 The lease between the Commonwealth and MR1 also makes it clear that the Commonwealth did not intend MRI to be exempt from local zoning. It explicitly prohibits MRI, in section 2.5, from performing any work or operating its facility "in violation of applicable statutes, ordinances, regulations and codes, and the requirements of any regulatory authorities." NM is further required to "obtain all necessary licenses, permits and approvals appropriate to or required" for its operations. While this language could be characterized as boilerplate, the fact that the Commonwealth chose to incorporate traditional boilerplate terms is consistent with the conclusion that the Commonwealth expected MRI to be subject to local zoning, and this language is quite inconsistent with any notion that MRI would be exempt from zoning. 06/03/98 15:51 TX/RX N0.9658 P.006 0 i , �i, .. _... ... a.... .'�1 f ,.. , , r '. . .. .__. � � .. .' _ .. .Z�% ..• l - a i, t _ ..,. w. .. � '% � .. � JUN -03-1998 16:03 BES'NSTEIN,CUSHNERSKIPIMELL 7420170 P.07 North Andover Zoning Board of Appeals Pap 5 June 3, 1998 and therefore exempt from zoning). Here, however, NESWC is not snaking the improvements itself, and MRi is not carrying out the instructions or mandates of NESWC. instead, under the NESWC Service Agreements, MRI notified NESWC that it believes certain air pollution control improvements must be completed. NESWC formally objected to NW's proposal, on a number of grounds. Of particular relevance to the present issues, NFSWC objected to paying for the fill costs of the retrofit, as the member communities will only enjoy the benefits of the retrofit for five years, which is considerably less than the useful rife of the retrofit. Litigation is now pending between the parties over whether NESWC can be held responsible for 100% of the cost of the improvements, given the extent to which MRI derives a private benefit. NESWC also challenged whether portions of the proposed improvements are even necessary. The parties are now in arbitration over the scope of the needed improvements. More generally, it is difficult to characterize the relationship between NESWC and MRi as one in Which NMI acts as NESWC's agent in carrying out a public purpose. In reality, NEWSC and MRI have an arm's-length, business relationship that has been marked by strong disagreement over the propriety of the respective Service Agreements, and extensive litigation over a number of disputes. Moreover, while in one respect the facility is currently being operated on behalf of NESWC (in the sense that the NESWC communities pay all the costs and receive most of the revenues), the facility has always been owned and operated by a private entity. And, in 2006, the relationship with NESWC ends entirely, and the facility becomes a purely private, merchant facility, indistinguishable from many other similar facilities in the commonwealth and elsewhere. Given the historical relationship between MRI and. NESWC, and the serious disputes between NESWC and MRI over the need for the improvements that are the subject of this variance, we do not believe that AM can be said to be carrying out work "reasonably necessary for the prosecution" of any contract with NESWC (Teasdale, 192 Mass., at 442), or even that NESWC has contracted with MRI to complete the work in question. Thus, while MRI correctly states the general rule of law, that "State instrumentalities are immune from municipal zoning regulations," Salem, supra, the facts here show on. balance that MRi is neither itself a state instrumentality, nor an agent carrying out work necessary to complete a projecton behalf of a state instrumentality. Therefore, it is our opinion that the retrofit is not exempt from the local zoning regulations. H. ZONING DdMUNrrY UNDER G.L. C. 40A, §9. MRI also contends that a state law, G.L. c. 4OA, §9, exempts MR1 from the requirement of obtaining a variance. We do not agree that the statute applies. The pertinent 06/03/98 15:51 TX/RX N0.9658 P.007 0 ,YUN-03-1998 16:03 BERNSTEIN.,CUSHNER;>:KIMMELL ?420170 F.08 NorthAndover Zoning Board of Appeals Page 6 June 3, 1998 portion of the statute is set forth below: A facility ... which has received a site assignment... shall be permitted to be Constructed ... on any locus zoned for industrial use unless specifically prohibited by the ordinances and by-laws of the city or town ... in effect as of July first, nineteen hunched and eighty-seven; provided, however that all permits and licenses required by law have been issued to the pmposed operator. A city or town shall not adopt an ordinance or by-law prohibiting the siting of such a facility ... on any locus zoned for industrial use, or require a license or permit granted by said city or town ... except a special permit imposing reasonable conditions on the construction or operation of such a facility, unless such prohibition, license or permit [requirement] wits in effect on or before July first, nineteen hundred and eighty-seven, provided, however, that a city or town may adopt and enforce ... an ordinance ... of general application that has the effect of prohibiting the siting or expansion of a facility in [recharge areas of surface water supplies, wetlands, or zones of contribution of groundwater supplies]. No special permit authorized by this section may be denied for any such facility by any city or town... [Emphasis added]. This statute divides the world of solid waste facility zoning into two categories: 1) pre - 1997 zoning, and 2) post -1987 zoning. Zoning provisions in place as of 1987 may be lawfully applied to prohibit solid waste incinerators, provided a bylaw 'specifically" prohibits them, and does not do so merely by implication. pre -1987 bylaws also may subject incinerators to dimensional requirements, including the requirement of obtaining a variance. In contrast, provisions enacted after 1987 may not prohibit landfills in industrial districts, unless the proposed site is in one of three enumerated areas. Post -1987 provisions also may not require additional permits or licenses, except aspecia3 permit, which. may not be denied. See F*xtown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415, 419 (1992), in which the Appeals Court ruled that "[p]rohibitions of, or license or permit requirements for, such a facility [i.e. a landfill] in effect as of July 1, 1987 are valid." Applying this statutory rule here, the height restriction was in place prior to 1987, as demonstrated by the fact that MRI applied for and obtained a variance from this restriction. As a result, the requirement of obtaining a variance from this restriction is a "license or permit [requirement] in effect as of 1987", and therefore may be validly applied. M. EsTING VARIANCE MW also contends that it does not need a new variance, because the height of the new 06/03/98 15:51 TX/RX N0.9658 P.008 N `rUN--0 3-1999 16:04 PERNSTEIN, r_.� IENNER KIMMELL 7420170 P-09 North Andover Zoning Hoard of Appeals Page 7 Lune 3, 1998 fatality will be lower than the existing facility. MRI contends that the existing variance in effect changed the applicable height limitation for the site of the facility. Because that height will not be exceeded, the argument goes, there is no need for an additional variance. Frankly, we could find no statute or case law that definitively resolves this dispute. Nor is the existing variance clear on this matter. On the one hand, it is plausible to believe that when the ZBA issued the original variance, it intended for that variance to apply to the specific facility shown in the pians plus any modifications to the facility, provided that the modifications did not increase the height above the limits set forth in the variance. On the other hand, it is plausible to believe that the ZBA may have intended for the variance to apply only to the specific components of the facility that were presented to the ZBA at the time, such that any new components would require a separate variance. One way to resolve this dispute is to focus on how the terra "structure" is defined in the zoning bylaw. The bylaw defines structure as "a combination of materials to form a construction that is safe and stable, including, among others, buildings... towers ... [and] trestles." Zoning Bylaw, $2.68. Applying this definition, the equipment that is the subject of this variance request - - the Spray Dryer Absorbers and the Lime Silos-- are arguably separate structures, even though they are attached to the existing facility. Further support for this proposition is found in section 7.4, which indicates that accessory structural features are subject to height limits of either 65 or 85 feet. in our view, the Spray Dryer Absorbers and the Lime Silos are accessory structural features, and hence are independently subject to the applicable zoning requirements_ However, we emphasize that this presents a close call, and there is room for legitimate difference of opinion in this respect. YV. p'RACTICAL CONSID19RAIIONS We also believe that there are intensely practical reasons why this Board should not Wile that MRI is exempt from the zoning requirements, and instead should reach the merits of the request. As we have stated in this memo, all of the arguments presented by MRI are cogent, well - reasoned, and potentially correct, although on balance we disagree with them. Hence, it is impossible to predict how a reviewing court will decide these issues. However, if this Board were to rule that MRI is exempt from zoning and therefore not decide the merits of the variance request, it is quite conceivable that a reviewing court could overrule that decision, and then remand the case to this'Board to decide the merits of the request. If this occurs, a significant amount of time and effort will have been wasted. On the other hand if this Board reaches the merits of the dispute, it will have completed its work and moved this case along, leaving it up to the judicial branch to rule on the novel and difficult issues of zoning immunity raised by MRI. Indeed, the issues of immunity appear to be far more difficult than the underlying merits of the variance request itself. TOTAL P.G9 06/03/98 15:51 TX/RX N0.9658 P.009 0 12:5 PE=N TE 1 N, CUSNNE I&K I PIr,)EL L 74-202 ; G P. i]5 the 'Facility. within Section vZI of the Service A gr'eement, they dispute MAIs position that ,.e NESiiC is responsible for the en -tire cost without taking into account the value that MRI will receive from the Retrofit after the year 2005, j. This court grar.•„s summary judgesent where the pleadings, depositions, an3'4f rs to i=errogatories and admissions on fi no ger2uine issues of material fact and where the saovIn 2e show entitled to u 4 Party is Judgment as a matter of law. Plass, R. Civ. P. 154S (C) f.A42r.s= V. inner cr 390 Plass. 4Z9, 422 (1983) ate t _ V. SCRs, 369 Pians, 550, 553 (2976), The moving party bears the burdens of affirmatively demonstrating that there is no genuine issue of material fact on aver.y relevant'issue. 'SII v- 404 rias s . 14, 17 (19 a 9 ) . Once the moving party *Gtzblish,s the absence of a triable issue, the party opposing the motion must ra spend and allege specific facts establishing the existe-nce of a genuine issue at material fact. ZA. at 17. "JAJ party =Ving for teary judgment in a Case in which the aPP"ing party will have the burden of proof at trial is entitled to spry judgment if he [or She] demonstrates by refaxence to material descries its Kass. R. Civ, P. 56+ that the pnrtY aPPdsinq `.he =tion has no reasonable sxPectation of proving zsn esszntia2 element of that partyls Case," Sm1"h `'' i 414 Mass. 81, 87 (1993) I2_"��var1 is v. Gere _�-aL M t nrr, ' .,'ILS_ <' Z:32- , 420 XaSS. 706, 3 06/15/98 11:44 TX/RX X10.9867 P.005 61744ZI-60 ENVIRONNENTALFUTUF.ES 526 PO -Z"06 JUL 07 "FE, Q3: NORTHEAST SOLID WASTE CO"77TEE 530 Atlantic Avenue, Boston, Massachuseto 02210 • Tel (617) 443-13o3 • Fax (617) 443-1301 MEMORANDUM. TO: NESWC Board of Directors FROM: Shawn Worster Steven Rothstein RE: Independent Third Party Decision DATE: July 6, 1998 a a a to as a a a a■aaaaa■aa0a a ata aa■a■•aa a as at aa•■a aaa aaaaa.■■■a.. a.aa..■. a..... We are pleased to announce that David Spencer, the Independent Third Party (ITP), has reached a decision on the capital cost of the retrofit. Mr. Spencer has ordered that MRI be paid $35.5 million to carry out the scope of work as detailed in his Phase I, II, and III decisions. This represents $8.3 million in savings over MRI's capital cost figure -- clearly a very exciting development in the continuing efforts to reduce the cost burden faced by the NES WC communities. Attached are the ITP's Phase III decision, detailing the capital cost determination, and a press release announcing the decision. We will discuss the ITP's decisionrin more detail at the Board meeting on July 2I. Please feel free to contact us with any questions. i w Panted on post Consumer recycled paper 07/07/98 09:28 TX/RX N0.0246 P.003 61 r44,:i 560 EF•f�frFof,lf,fE[47ALFU7URES eron.pakpTIr�ry � mda irtle Bedford, MA 6173N234p (617) 21PS.6400 FAX (6r7J rr&. I2 David D. 9pvncer p►Kident Mr. Steven I. Comes, Esq. Goodwin, Procter & Hoar LLP Counselors at Law for MRI Exchange Place Boston' Massachusetts 02109-288 Mr. Mchst) T. Gass. Esq. Palmer & Dodge LLP Counselors at Law fcr NrSWC One Beacon Street Boston, MAmachusetts 02108 July 2. 1998 !)Bseso2s Ra: Massachusettsi ec1L Inc. v. Palmer & Dodge LLPClYJLACtien No ---27- 71 rw 52-6 PO4, T36 .JUL Q" "FS OF: 24 Dew . r. Coe' = acrd A& Gags; As the Independeni Third� Y (ITP), jointly selected by both Massachusetts Refuwech,, Inc. C`NOU) and the Northeast Solid Waists Committee s to resolve rnaltersregw�g the above rcfhrenced dispute, the n? htrei�y orders that MR.ibe paid $35,500.000 by NESWC fnr the scope of work as more fully described Wow. This is a lump sum fixed price, and includes performance guarantees. The plant will be r 10 operate in compliance with applicabler laws. regulations and standards in et%ect as of 1y c, 1998. The schedule ofpsyments will(be developed by the ITP in Phase IV. 1. This ammmt is, deemed b y thess the lhir and reasonable price to be paid for penziitting. design, insurance and bonding, construction, startup and acceptance testing fbr the air Pollution cowl retrofit, but it RIX Include contingencies for extraordinary delays or events Outside It's control. NESWC must pay all financing costs and sales tax. 2. AM submitted a scope of work pen Qetobet i0, 144 . Comply with applicable ishan which defined its proposed retroft to gcs , law, particularly the Clean Air Act Amendments, The price far accomplishing this million. propbsed scope of work was estimated Ott approximately $43 3. On November 13. 1997, NESWC Objected to the price, the scope of work. and the went of environmental enh9neament3 prOPOwd by MRI. Subsequent to that communication, NM and its engineers. Camp Dresser and McKee (CDM) and Hennin urham and Richardson (HDR). proposed that tie work could be accompli sh®d For amounts $etween x`32 *=YOM PAPER -r- f 07/07/98 09:28 TX/RX N0.0246 P.004 N 6174431360 Ef f(,f FCf•df•IEf•fTALFUTLfRES 526 P05,,`06 JUL 0 -56 OF: 24 million and S37 million, of work.) (These estimates ware based upon a revised and/or reduced scop 4. In the Pip's opinion. the coumer-proposals by N£SWC were in camplianee with laws, but did not feslly anticipate actual site conditions or xPPlicable ternaiiv environmental protection to the communities than the MRf propoCly provided less S. In the TTP's opinion, the cost estimates provided by, NUU were reasonable for the work deflaed in the original MRI scope of work document, but some of the work and/or did not take fall. advantage of the existing infrastructure at the site. was unnecessary d. The ITP worked for several months with both MRI and NESWC. and their subcontractors and en$inm , to redefine the scope of work in a manner that would provide the greatest environmental protection to the publir, but at the lowest cost to the Communities. 7. 'The lump sum fixed price set by the ITP does not include any amount for XDU prafii on tfie work to be performed. s• It is the ITP's understanding $ern joint meetings with both NOU and NES WC worJc and price a s defined by the ITp is acceptable. Both Furies unanimoF s tha the scope the work should proceed now to upgrade the eBox1stin y that environmental controls. Tlmdng will be critical in ordert � complete tihe h�.k ��'vad December 20W, and thus minimise community costs. 9, The proposed SCOP* of work produces a retrofitted resource recovery ct that wilt make the North Andover Project capable of performing to the highest environmental standards. No expense was spared in the ef2brt to reduce emissions. When completed the North Andover, facility emissions should be equal to or below those of any resource recovery facility , anywhere in the world. 10. The decision to proceed with scrubbers and baghouses added subsmntiallY tcs the cast but will reduce emissions to levels well below the most stringent federal and state standards andlor guidelines -- some of which are not even yet in effect. I I. Joint meetings held between the ITP and the U.S. Environmental Protection Agency and the MUsachusetts Department of Environmental Protection have verbally endorsed the find scope of work as being Rally consistent with applicable regulations and Protective of health and the o»vironrnent. A written endorsement is expected in the near Ruure. 12. In the event the,statg enacts additional recycling regctirements a$ part of its implementation standards ofthe Clean Air Act. it is encouraged to do so. Such added recycling has not been included in the rump such price because the ITP could not reasonably anticipate the required changes at the time of award. 13. A scope 'definition was provided to the Parties by the ITP. ITP documenratton was disea=sed fully {until there was na ltrrthar disc 1998. 'lite conclusions were finalized by the ITP o "July 1 l.8. and areent or 2msnyoriaiiznd in the final Phase i surd Phase II Decisions — two documents 14 and 33 pages in length. respectively. 14, The ITP believes that the combination of the Phase I, Phase II, and Phase M documents Provides adequate definition of scope. price, performance and schedule. This documentation provides protection to the communities that the work will be completed as defined. Tile FECYCLEC PAPSFI 07/07/98 09:28 TX/RX N0.0246 P.005 0 61''44,.,1560 EN(,f r FCNr(ENTPLFUTUPES 526 P061,108 JUL 07 '96 09:24 communities have =suranc" that the will also geceiv With applicable laws and mgulari„ wworkhen completed, will perform in accordance communities change the scope of work, cause dela provided to MPJ that if the Ys, or change their interpretation of laws and rtSulations, NMI will be entitled to additional eompCnsatlort. Since the final delivery data cannot be adjusted outward. MRI e add®d compensation if it has to ==*,este its work. ts. It is assumed in the S3S.5 million prim that the wgric iras been dined cis of tora►cry',r dwa with respect to applic*blc law', ordinancm and standards in effact, or as be anticipated by the TTP, on July 1. I998, and that it will not change.could be rrasonabl�r 10. It is ammed , jbr prielme pwp=, rs that local r+atro�t an � Permits can and wilt be issued to M>7.I for the Prornulgr�tad, will be substantially coand nkat the s stent in all mate isl ��cts W1 ration P! for.tfinal comment. a4 caked peers witEt documents issued 17. Time is of the essence. If local permit requirements are it is the ITP's opinion that N4R, will not firlty dafned in the next 30 days, ingit Cost anticipates that there will be sonic dela les beyond the lump Burn price: The -g Of North Andover, but cannot estimate the actual l irnOf e requireernifts d boards em s in rate T°� Rather their sstfraating the time of delay. and adding such delay costs now to the Iumrp 3UM Price, a variable adjustment has been made to the price. For the month of Act adjustment shall be sat at $1000 per day. If for some reason local Sum, this beyond August 31. 1998, tete daily amount wilf be adjustePermits are i delayed hoped and expected that this will net be necessary. d upward b I is 18. The $35.5 million price set forth excludes the costs of financin Coats„ and delay casts. It also excludes changes to the a g. extraordinary perrmitting reasons outside MRI f s control. issues, among otiierjerg s � e finalpoll SCape of work for IV decision. dressed In the Phase The ITPrrselves the right to make adjustments to this Pham M do-dsion in Phase IV based Upon the discovery of new informztion. CC.* M. Hepp, MRI S. Rothstein. NESWC 6R RECYCLE0 PAPER RespectRilly submitted, David B. Spencer, Sc, D. President 3 07/07/98 09:28 TX/RX N0.0246 P.006 N JI�PJ-2 S-2 a'?B 2 2 : 5�; PEPN TE I N, C1J._ HNERZK: I PINE! L 716 (1991). once the moving party est4blishes the absence of a triable issue, the party opposing the motion roust respond and allege specific facts establishing the existence of a material fact in order to defeat the motion. ?-derncn, 404 Mass. at 17. The opposing party carmot rest on i his or her pleadings axtd here assertions of disputed facts to defeat the motion for summa__y judgment. T,&rnnAa v.iamneY, 405 Mass. 2077, 2OS (1989). Y . Tn &:=rstati cn 94J;he jjA=CJG2 Acrraeaeat. Section VII(I) of the Service Agreement provides that the NFWC/!Member Communities are responsible for 'the amortization of the total cost, including finanea costa, for the design and ccnszruction o=, and any additional operation and a casts resulting from any change to the Facility or change in the method of operation, which is required by or results f ram: (iv) an Uncontrollable Circ�17Lstance . For the purpose of this Section, 'costs' shall includ® all iters which were treated as 'costs' with respect to the original cost of Construction of the FaCil.ity, and shall 'include eocalattion and financing costs." (emphasis added). The language in the Service Agreement is clear and unambiguous that NWWC wiil'be responsible for the total, CQ , -,t of the Retrofit. FESWC avers that 'cost" in Section vII(ij means 'costs' that were contemplated at the time of the original construction of the Facility. An affidavit from Ahti E. Actio, one of the original negotiators of the service Agreement, states that 'it was never int.arAled that JIRI would reap ext aerdinary profit from a change in the law at t -he +errata of the NE'SWC C.^.casaunitiQs .' Autia Aft. 41 24. '_'he definition of "coat" in Section YZI is an inclusive one and a mare clarification that 'cost' would include items that were covered 4 06/15/98 11:44 TX/RX N0.9867 P.006 E 61"44-"1. t50 ENV IF0Nr11EN7PLFUTUFES 5c6 F'0 7 :'T3S JUL a—( ,?S 013: 25 V�&c NORTHEAST SOLID WASTE COMMI?TEE 534 Aziantic Avenue, Boston, Massachuserts 02210 • Tel (617) 443-1303 • Fax (617) 443-1301 ,r For Further Information Contact: Steven IVI. Rothstein Shawn Worster (6I7) 4�3-1300 FOR IMMEDIATE RELEASE: NESWC Retrofit Capital Costs Finalized $8.3 Million Saved (Boston, NIA July 6, 1998) The capital costs for the retrofit of the Wheelabrator/ Massachusetts Refuse Tech, Inc. (MRI) North .Andover waste -to -energy facility has been reduced from $43.8 million to $35.3 trillion. Earlier today Dr. David Sper%er, the Independent Third Party (TTP) announced this decision. This decision, pursuant to the terms of the Servicc Agreements between MRI and NESWC, is final and binding on the parties. The TTP was jointly selected by Wheelabrator and NESWC to resolve outstanding issues of design and cost of the facility retrofit. NESWC Board of Directors Chairman Robert W. Moroney, P.E., noted "This decision represents a S 8'.3 million dollar reduction in the cost of the retrofit, which will reduce the Financial burden on the contract communities." Dr. Spencer was brought in to help resolve outstanding questions raised by NESWC regarding MRI's proposed approach to modifying the waste -to -energy facility located in North Andover. The project scope, selection of technology and conceptual design have been determined through this process, This facility provides waste disposal services for the 500,000 inhabitants of the 23 communities comprising NESWC. The Facility must be retrofitted with additional air pollution control equipment to bring it into compliance with the Clean Air Act Amendments of 1990 by cto later than December 19, 2000. Dr. Spencer noted due to the construction and design. schedule that time is of the essence. Dr. Spencer stated "I was delighted to have been asked by both NESWC and `'v'heeieorscur to heip chem on rnis important project. t sy worxtng togettzer, NES bvC and Wheelebrator arrived at a design which offers the highest level of ernission control anywhere in the world — at a cost which is affordable and attractive to the communities. 0 Printed on posf cansumer recycled paper 07/07/98 09:28 TX/RX N0.0246 P.007 N 61 r 44.3136E3 ENV 1 FONNEN7i;LFUTUFE5 526 PO& 3E JUL Q" '=E Q3: 25 As a NESWC citizen with children and grandchildren living in the area, it is comforting to (snow that no expense was spared for environmental controls. After the retrofit is implemented, the plant will operate well below the most stringent federal and state emission standards anticipated now, or in the foreseeable future. I am most satisfied that the retrofit eliminates any rational cause foto environmental or health concern. The challenge that now lies ahead is to bring the permitting process to a rapid conclusion, so the improvements can be implemented without added cost to the communities for delays." Steven M. Rothstein, Senior Advisor to the NESWC Board, commented "Tine significant savings Dr. Spencer and his staff, MRI and NESWC's engineers were able to identify will help keep teachers, police, fire and other public services in place in the NESWC communities. We appreciate the hard work and effort of all concerned over the past several months." Mr. Moroney added, "NESWC recently won a court decision whereby the NESWC communities will pay for a portion rather than 100% of the cost of the retrofit. Together with today's decision, this means millions of dollars in lower retrofit costs for NESWC taxpayers." Mr. Rothstein commented "The Independent Third Party's decision is a major milestone in terms of the NESWC project. It is critical that we move forward in implementing the retrofit in light of today's decision, the compliance deadline, and the negative consequences of delay on the environment and the economic aspects of the project. " The NESWC communities are Acton, Andover, Arlington, Bedford, Belmont, Boxborough, Burlin -ton, Carlisle; Dracut, Hamilton, Lexington, Lincoln, Manchester - By -The -Sea, North Andover, North Reading, Peabody, Tewksbury, Watertown, Wenham, Westford, West Newbury, Wilmington, and Winchester. Ed. Note: Copies of The Independent Third Party decision may be obtained by calling Jennifer Regan at (617) 443-1303. 07/07/98 09:28 TX/RX N0.0246 P.008 0 / • JUN -1 T-1,a,?2 11 55 SE?NSTE I N C USHNERS.1:. I Plt IE! 7420177 F.07 during the original Construction of the Facility. M �' Also, absent any suggestion from NWWC t21at the Service Agreement was not a fully integrated docent, this court is bound by the unambiguous tarts "total cost' in the Service Agreement. S-06 Kobayasr.IL v. Orion Qerr4_zr"M. Tnc., 42 M&SM. App. Ct. 492, 496 (1997). S" also T'0?,�n S-t^.sdi as or Tncw. V. �r f , 10 Mass. App. Ct. 864, 865 (1980). on interpreting the ?anguage of the service Agreement, this court concludes that NWwr_ contracted to pay the total cost of additions and alterations required by changes in the JaLv, 1.0., $48.99 million, Without pro -rating the cost with MR1. zi. 'It is a fundamental principle of constitutional law frequently declared that money raised by taxation can be used only for public purposoo and not for the advantage of private individuals.' Qmin4nn of 711stir_ea, 368 Mass. $8o, 885 (1975)(citations caUtted). In examining the constitutionality of an expenditure using public monies in an activity whew thera.may be benefits to private pa=tties, the crucial inquiry is whather the private benefits are primaxy or merely incidental to the achievement of the public purpose. Cf. Oninicr cf nsticol, 368 Mass at 885. In making this inquiry, a court must consider inter ali3 the fallcving factors: Whether the benefit is available on equal ter= to the enti-a public in the locality affected; whather the service or catamocity supplied is one needed by a.11 or by a 5 06/15/98 11:44 TX/RX N0.9867 P.007 9ERhlSTEIPJ CUSHPJEF?:1<Ir1rtE! L -72D2'7 0461 large number of the public: whether thQ'anterprise bears directly and immediately, or only remotely and circumstantially, upon the public welfare; whether, in so far as benefits accrue to individuals, the whole of society has an interest in having those individuals benefitted. All vdcnn Refflty cr X:A-4t; nn v, Holyoke H2RAIn r AuthoritY, 304 XaSS. 288, 293 in the present case, the above factors and the summary judgment r:cord reveals that the benefit from the Retrofit, at least till the service Agreement terminates im 2005, is primarily conferred an the member Communities. During this period,' the benefit to PURI is only incidental. However, after the Service Agrsement terminates, MRI will become the prizary beneficiary of the Retrofit, with only incidental benefits, if any, to'the Member Casascunities. This Court declares that so much of the Service Agreement that requires payment of t-h4a Member Communities public money for MRIs private benefit which is incidental to the public benefit is unenforceable since it violates the Constitution and public policy. In light of the above, the cast of the Retrofit must be allocated between the Member Communities and Y.RI. An allocatian is a question of fact that requires an evidentiary hearing. Such a daterm.in.ation is beyond the scope of this summary judgment. 'Period between installation of the Retrofit and termination of the Service Agreement. 6 06/15/98 11:44 TX/RX N0.9867 P.008 0 _i IJN-1 -' 9I:48 11: S5 SERNSTE I N • CU SHNER?J�:. I NPIELL ^4301'70 P. i-Ic CAM ,, zr the forea ing reasons, it is hereby Q$QZ,= that the Plaintiffs Motion far Partial Summazy Judgment Regarding Payment for Altarations and Additions Required for Compliance with the 1990 AMAndmants to the Clean Air Act is gip. Dated: June � , 1998 0 i RegjruC U. Quina an Justice of the Superior Court w 7 TCTHL 06/16/98 11:44 TX/RX N0.9867 P.009 0 �mcon 3 Riverside Drive • Andover, Massachusetts 01810-1121 • (978) 682-1980 • Fax May 20, 19S North Andover Zoning Board of Appeals 120 Main Street North Andover, MA 01845 1,01 MAY 2 1 1998 8L -A, BOARD OF APPALS RE: Applications of Massachusetts REFUSETECH, Inc., 285 Holt Road Air Emissions Control Project (1) For Zoning Relief (Including Variances) (2) For an Earth Removal Permit (3) To appeal certain determinations made by the Building Commissioner Dear Members of the Board: One of the original plans submitted with the above referenced applications (EMCON Drawing No. 86458-001-004 Rev 0, Air Emissions Control System Retrofit General Arrangement Drawing) contained a typographical error. The scale which incorrectly stated 1 "=100' has been corrected to F'=10'. All dimensions originally shown on the plan are correct. An original corrected mylar was presented to the Board prior to the meeting on Tuesday May 19, 1998 and ten (10) copies of the corrected plan stamped by a Professional Engineer were delivered to the Zoning Office on May 20, 1998. I apologize for any inconvenience this may have caused the Board. R onnolly anager cc: J. McIver, MRI M. Killeen, Wheelabrator L. Kaplan, Esq., Goodwin Procter & Hoar K. Kimmel, Esq., Bernstein, Cushner & Kimmel R. Halpin, Town of North Andover C. Rawn, EOEA ene-andvrl j:\86458001.000\061ocal\mrizbalt.doc-96\jconnoll:1 MARTIN R. HEALY (617) 570-1371 MHealy@gph.com Post -It'" brand fax transmittal memo 7671 # of pages ► UAle. To VV. -A /� I Dept. Pho a '/�I//(/!J Fax # he v - y 7 Fa 7��%5S� - -- - — — _ June 10, 1988 K William Sullivan Chairman North Andover Zoning Board of Appeals 120 Main Street 1 North Andover, MA Re: Emissions Control Project North Andover. MA Dear Mr. Chairman: i»xpr 77) L 4// e TELEPHl7 E (617) 570-10000, ^'- TELECOPIER 1617) 227-859/.1 NNN I am writing to confirm that Massachusetts REFUSETECH, Inc. ("MRI") has agreed that the Board of Appeals may postpone until July 25, 1998 the filing with the town clerk of a written decision setting forth the reasons for its vote on June 9, 1998 regarding MRI's appeal of determinations made by the building commissioner. Please call me if you have any questions. Sincerely, Martin R. Healy cc: Kenneth L. Kimmell, Esq. Gail M. Lynch, Esq. q• Jonathan S. Klavens, Esq. Peter G. Shaheen, Esq. DOCSB\553605.1 MARTIN R. HEALY (6 17) 570-1371 MHealY@gph.com GOODWIN, PROCTER & HOAR LLP COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 - June 10, 1988 William Sullivan Chairman North Andover Zoning Board of Appeals 120 Main Street North Andover, MA Re: Emissions Control ProjectNorth Andover. MA Dear Mr. Chairman: /� P�r. il7cGSS.f� 'U TELEPHO EE(617)570-1000 TELECOPIER (617) 227-13591 K � , � V' it I am writing to confirm that Massachusetts REFUSETECH, Inc. ("MRI") has agreed that the Board of Appeals may postpone until July 25, 1998 the filing with the town clerk of a written decision setting forth the reasons for its vote on June 9, 1998 regarding MRI's appeal of determinations made by the building commissioner. Please call me if you have any questions. Sincerely, 7'j Martin R. Healy cc: Kenneth L. Kimmell, Esq. Gail M. Lynch, Esq. Jonathan S. Klavens, Esq. Peter G. Shaheen, Esq. DOCSB\553605.1 Jutq-26-2 99Eq 15j1@1 SERNSTE I r4, +. USR4ER&K I MPIELL 7.4201 70 P. 01 k'AK COVER S.t3EET BElNSTEIM CUSHNER. & KINvIMELL, P.C. AT QRNEYS AT LAW ONE COURT .STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 Telephone: (6l 7) 742-4340 Facsimile, (617) 7442-0170 E -Mail: kkimmell@bck.com www.bck.com DATE: June 26, 1998 CLIENT/CASE NO: NAN TO: May Ippolito FACSDAiLE NO: 978 699-9536 FROM: Kim linmell COMMENTS: The changes are a brit more extensive than I thought they would be. Please call me at a couveWent tithe and I will walk you through them. NUMBER OF PAGES (INCLUDING COVER SHEET) BEING TRAIWSMITT'ED: 2 PLEASE CALL (517) 742-4340 IF ALL PAGES ARE NOT .RECEIVED. ,S'T'ATEMENT OF CONFIDENTIALITY This facsimile transmission contains information from the law firm of Bernstein, 04shner & Kimmell, P. C The information contained is confidential and/or privileged, and it is intended only for the use of the addressee named on the transmittal sheet. If you are not the intemled addressee, please note that any disclosure, copying, distribution or use of this faxed information is prohibited. If you receive this facsimile in error, please notify us at (d17) 742- 4340. 06/26/98 15:01 TX/RX N0.0132 P.001 0 TUN -2G-1995 15=11 �l p�1N BERNSTE I N , CUSHNER X I MMELL t ♦. a i�a`'"ry0 `moi � �414M1A� TOWP4 OF NORTH ANOOYEW MA55ACN 910ARC OF 7420170 P.02 post ft- brand fade tmnsmittal memo 7W7 j * f�• err. qF4 T Any cFtidl l e aw Ings f Mnwkt. NOTICE OF DECISION , PROPER'T'Y: 295 Holt Rd. AME: q" ftEg"gInc. GATE: 6111499 kDO : 385 Holt and. PETi'TION. 023-99 north IMA 01845 HEARING: ON" The rdf Appeals hold a mplar meeting on Tues dW—eViong. June S. 1988 upon the application of Rehdwftch. Int;., 2A Holt Rd., North And6ver, VA., under 001fan 10.4 of the San" gytaw from ittsltiorl9 made by the Butldir* Commissioner cvnceming the tmnslrud10n Of air emisslons equipment aro adlac ont time 400. silos at a he1w that � the maXIMUm buil ng a-4 rel height tirrtit %ft and the maintemume of an eMWM boiler building that was the sr�b3ec! r>f a u hsued on April 13. 1982. ApblieW rEquests a deterfnittaticm that 8 bU#dMg permit for ow pa%X R M emissions conft equipmeel and 8diaemnt lima stoma$ surfs dvas not repairs a a8ui�lutde from thea icablt; heght tirnlgtElCirt. in 1-2 d`rltx The followir+p st 43t Ees". The heating vras by regtaW Mail_ were present. William J. Sullivan, Robert Forst, Sw t Karpinski, Ellen McIntyre, UOM O matron made by unanimously voted to m height of pmposred sddh We f"Uty QARQP not i is i ION via immunrw ur der Umed in tfte L.AtA Wce Trtisune an af2&96 a 812M and elf Sputters were'nObSed � cr oMe Earley and seconded by 1111 it ,the BoOrd ofV%1RiiaNGR for 8 hc� I s detenoinrmon first the oner does Mqu and/or nux0ocetions of existing bur ings, n is Ine opinion of the Board int 5A8 v " ,npt from local zoning under Gweem SnW Intrrwntty Pnvrdples 136 Qw a URi ►r !� palitiaW s&dxWision of me Stat The Beard also finds the zonit* oft 404..C. +40A. 8ecW t 9 ) is. d - re �j gyp • ' - �ww�yq /+_�� In favor: Wiliam J_ SuiCntan, Robeft lora, Sonti K d,- 'Z The 9 pE V tial d as to was" s ap d0 a not � r4 tiw g nq Buildi it as t" sept Must Obi sppH to 44. -1 radar. d federal g codes mations, p ttw istru uildilig pwnett uesbed by tha Bar commission. SOARD OF APPEALS William J. Sttlflvan. Chalmmn dacrodttl4 ,,,,yy�� � / � 1 S�-+r 7e'� ,p f0're.i fA�.fs% � ,�r 94r- r d4 %^�C.C116i ¢IiC i p7 S P J-,G� �swr �4t iGtr/ ld r�"G P+s-i yArkAz R/1/1 /Cwoiw a.�f ,,,. lin✓ Iraq TOTAL P.O2 06./26198 15:01 TX./RX N0.0132 P.002 ' �. ,� '� +''f � ,F� ... .., � .... „. �. .. .... :+r.:.r ... � ,. � .. Any appeal shall be riled within erthe date of filing of this notice in the office of the Town Clerk, TOWN OF NORTH ANDOVER MASSAGE �- BOARD OF. Post &( brand f x transmittal me o 7671 1 # of pages ► O To /. From Co. Co. --4 Dept. / �� _ Of hone�p� Fax #j1- 702 - O O Fax # . 6 fd- NOTICE OF DECISION _,___— PROPERTY: 285 Holt Rd. NAME: Massachusetts Refusetech, Inc. DATE: 6111198 ADDRESS: 285 Holt Rd. PETITION: 023-98 North Andover, MA 01845 HEARING: 619198 The Board of Appeals held a regular meeting on'Tuesday evening, June 9, 1998 upon the application of Massachusetts Refusetech, Inc., 285 Holt Rd., North Andover, MA., under Section 10.4 of the Zoning Bylaw from determinations made by the Building Commissioner concerning the construction of air emissions control equipment and adjacent lime storage silos at a height that exceeds the maximum building and structural height limitations and the maintenance of an existing boiler building that was the subject of a variance issued on April 13, 1982. Applicant requests a determination that a building permit for the proposed air emissions control equipment and adjacent lime storage silos does not require.a variance from the applicable height limitation in 1-2 district, as well as a determination that the height of its current boiler building does not require a modification of the variance issued on April 13, 1982. The following members were present: William J. Sullivan, Robert Fond, Scott Karpinski, Ellen McIntyre, George Earley. The hearing was advertised in the Lawrence Tribune on 5/26/98 & 6/2/98 and all abutters were notified by regular mail. Upon a motion made by George Earley and seconded by Robert Ford, the Board of Appeals unanimously voted to make a positive determination that the petitioner does require a VARIANCE for height of proposed addition and/or modifications of existing buildings. It is the opinion of the Board that this facility (MRI) is not exempt from local zoning under Governmental immunity principles because MRI is itself neither that State nor a political subdivision of the State. The Board also finds the zoning immunity under Massachusetts G.L.C. 40A, Section 9 (pre -1987 zoning and post 1987 zoning) is not applicable as this facility (erected early 1980's) and has been granted by the local Zoning Board of Appeals, three variances dated 4/13/82, 6/2/82, and 4/9/84, pre -1987 zoning and continues to require local authorization for variance/permits. Voting in favor: William J. Sullivan, Robert Ford, Scott Karpinski, Ellen McIntyre, George Earley. Note: The granting of the Variance and/or Special Permit as requested by the applicant does not necessarily ensure the granting of a Building permit as the applicant must abide by all applicable local, state and federal and building codes and regulations, prior to the issuance of a building permit as requested by the Building Commission. decoct/14 BOARD OF APPEALS William J. Sullivan, Chairman deo- s ,"/ 7-2� r- A OF DECISION PKut-mrx , . 285 Holt Rd. NAME: Massachusetts Refusetech, Inc. DATE: 6/11/98 ADDRESS: 285 Holt Rd. PETITION: 023-98 North Andover, MA 01845 HEARING: 6/9/98 E The Board of Appeals held a regular meeting on Tuesday evening, .June 9 1998 •� g g g, pon the application of �S Massachusetts Refusetech, Inc., 285 Holt Rd., Northver, MA., unde ection 10.4 of the Zoning Bylaw from determinations made by the Building Comner conceml the construction of air a emissions control equipment and adjacent lime storaget a height at exceeds the maximur " ' building and structural height limitations and the mainteof an a 'ting boiler building that i ts� he j� fit subject of a variance issued o pril 13, 1982. Applicaests determination that a building permit for the proposed air emissions trol equipment and at li storage silos does not require a variance from the applicable heigh 'mitation in 1-2 distII as a determination that the height of its current boiler building does notre re a modificatiovariance issued on April 13, 1982 - The following members were present: Willi J. Sullivbert Ford, Scott Karpinski; Ellen McIntyre, George Earley. The hearing was advertised in the Lawrence Tri by regular mail. & 6/2/98 and all abutters were notified Upon a motion made by George Earley/andconded by Robe ord, the Board of Appeals unanimously voted to make a positivemination that the pe ' "oner does require a VARIANCE for height af�rVoting in William J. Sullivan, Rob Ford, Scott Karpinski, Ellen McIntyre, GeorgeEarley: Note: The granting of the Varia ce and/or Special. Permit as requested by theapplicant does not necessarily ensure the granti of a Building permit as the applicant must abi by all applicable local, state and federal and ilding codes and regulations, prior to the issuance of a building permit as requested by the wilding Commission. BOARD OF APPEALS William J. Sullivan, Chairman decoct/14 Any appeal shall be filed within (20) days after the date of filing of this notice in the office of the Town Clerk. NOTICE OF DECISION PROPERTY: 285 Holt Rd. NAME: Massachusetts Refusetech, Inc. DATE: 6/11/98 ADDRESS: 285 Holt Rd. PETITION: 023-98 North Andover, MA 01845 HEARING: 6/9/98 The Board of Appeals held a regular meeting on Tuesday eve/eat ne 9, 199 pon the application of Massachusetts Refusetech, Inc., 285 Holt Rd., North Ando., unde eiation 10.4 of the Zoning A'Q Bylaw from determinations made by the Building Commissioerni the construction of air c� f `o� emissions control equipment and adjacent lime storage silos aht at exceeds the maximur building and structural height limitations and the maintenance ' ting boiler building that i ts"he } subject of a variance issued o pril 43, 1982. Applicant requetermination that a building permit for the proposed air emissions trol equipment and adjacentorage silos does not require a variance from the applicable heigh 'mitation in 1-2 district, asa determination that the height of its current boiler building does not re re a modification of t e issued on April 13, 1982,. b, e F � The following members were present: Willi J. Sulliv , Robert Font, Scott Karpinskt, Ellen McIntyre, George Earley. The hearing was advertised in the Lawrence Trib a 5/26/98 & 6/2/98 and all abutters were notified by regular mail. Upon a motion made by George Earley and econded by Robe ord, the Board of Appeals unanimously voted to rriake a positive d ermination that the pe ' 'oner does require a VARIANCE for height an r ii— Voting in f or: William J. Sullivan, Rob Ford, Scott Karpinski, Ellen McIntyre, George'Eariey.� Note: The granting of the Varia ce and/or Special. Permit as requested by t applicant does not necessarily ensure the granti of a Building permit as the applicant must abi by all applicable local, state and federal andilding codes and regulations, prior to the issuance of a building permit as requested by the wilding Commission. BOARD OF APPEALS William J. Sullivan, Chairman decoct/14 �} 4LSc el Gam! OilFX 1�eycV6 //C 2oNr�Gid %`Ldw 41 Pa H/ A. /`%� csn//" 1 A D£ /3� GrarLArvtv r.,,- � /Y �°2p� �GrCG , ot���s Nani�as a��� A i� �T�� or &A10 el-' fr" �ia,,4. DaS %/tv�i�l i°� 1%/�/�rbG /'r�' J"f/6f)''ofii�S�C� f optT) vG AviLb,065 _ 7 S % �flg. AlA e24 IrY#r ,e,� � S /' tRJ lS its ZF- ivF�Ta / S ftp Ak" k. A 6 4) I C A C Q �r�� 1 Zo r.v� `��'� v�✓, T % v ^L'Ia r'v /'-lA s %a c //rP G,5 77"5 P26 --f9 7 A,,' -v 9,va Pr��S'%�/��� �c�R1r�G� 25 ,Na i ��Y*s"C�,B,iE A S' 7W,S IAC—r �r7`� C�/��Fd �'•!���-� /�Era$� .- /� n,►_d -d/'� � i�r� .� G, e2 A � �".,�..,� j, iii y �"�`�`�" �c..'� �'. s IAol(, 4lk, 7,, VssR,0"C—a, rs Var, �iA .li -1�RS MARTIN R. HEALY (617) 57 0-13 71 MHealy@gph.com I L 0 GOODWIN, PROCTER & HOAR LLP COUNSELLORS AT LAW EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 June 10, 1988 William Sullivan e Chairman North Andover Zoning Board of Appeals 120 Main Street North Andover, MA Re: Emissions Control Project, North Andover, MA Dear Mr. Chairman: TELEPHOE (617) 570-1000•.% TELECOPI ER 1617) 227-8591 I am writing to confirm that Massachusetts REFUSETECH, Inc. ("MRI") has agreed that the Board of Appeals may postpone until July 25, 1998 the filing with the town clerk of a written decision setting forth the reasons for its vote on June 9, 1998 regarding MRI's appeal of determinations made by the building commissioner. Please call me if you have any questions. Sincerely, I-- R. Healy cc: Kenneth L. Kimmell, Esq. Gail M. Lynch, Esq. Jonathan S. Klavens, Esq. Peter G. Shaheen, Esq. DOCSB\553605.1 t- BERNSTEIN, CUSHNER & KIMMELL P.C. ATTORNEYS AT LAW 61/ ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E-mail:bck@tiac.net Jeffrey M. Bernstein Stacey L. Cushner Kenneth L. Kimmel] ' Elisabeth C. Goodman " Charles Harak Erin M. O'Toole Suzanne M. La Mantia Also Admitted to Practice in California Also Admitted to Practice in New York and District of Columbia June 3, 1998 BY FACSIMILE: 978 688-9556, AND BY FIRST CLASS MAIL Members of the Zoning Board of Appeals of North Andover North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: MRI Zoning Variance Dear ZBA Members: Western Massachusetts Office: 20 BANK ROW, SUITE 200 PITTSFIELD, MASSACHUSETTS 01201 (413)442-3773 Facsimile (413) 442-3774 E-mail: bckberk@bck.com Enclosed please find a memorandum relating to certain legal issues raised by MRI in the zoning variance proceeding. I will be attending the June 9`I' hearing and will be happy to discuss these issues further with you at that time. Sincerely, > net LEiil cc: Martin Healy, Esq. Gayle Lynch, Esq. Robert Halpin i:\clients\nan\zbaletl.nan � •.A P,4pl.r BERNSTEIN, CUSHNER & KIMMELL P.C. ATTORNEYS AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E-mail:bck@tiac.net Jeffrey M. Bernstein Stacey L. Cushner Kenneth L. Kimmell Elisabeth C. Goodman " Charles Harak Erin M. O'Toole Suzanne M. LaMantia Also Admitted to Practice in California Also Admitted to Practice in New York and District of Columbia MEMORANDUM Western Massachusetts Office: 20 BANK ROW, SUITE 200 PITTSFIELD, MASSACHUSETTS 01201 (413) 442-3773 Facsimile (413) 442-3774 E-mail: bckberk@bck.com To: North Andover Zoning Board of Appeals From: Ken Kimmell, Charles Harak, Bernstein, Cushner & Kimmell, P.C. Date: June 3, 1998 Re: MRI Zoning Variance You asked this firm to provide you with guidance on certain legal issues raised by MRI in this variance proceeding. Specifically, you asked our opinion as to the following: 1) whether MRI is exempt from local zoning under governmental immunity principles; 2) whether MRI is exempt from zoning under a zoning statute exemption for certain solid waste facilities; and 3) whether the existing variance already allows the additional components to be installed by MRI. This firm has carefully reviewed the arguments advanced by MRI. Fortunately, we were already familiar with some of these arguments, as we were retained by the Board of Selectmen approximately eighteen months ago to analyze the local regulatory requirements that apply to this facility. In our view, the three arguments presented by MRI raise difficult and novel issues of law and fact, and reasonable minds could disagree on them. However, on balance we believe that MRI is subject to local zoning, and we therefore recommend that the Zoning Board of Appeals reach the merits of the variance request. I. MRI IS NOT EXEMPT FROM LOCAL ZONING UNDER GOVERNMENTAL IMMUNITY PRINCIPLES MRI argues that it is "immune from zoning" because MRI is performing an essential government function. Massachusetts courts have consistently held, "[a]s a general proposition, [that] the State and State instrumentalities are immune from municipal zoning regulations, unless a statute otherwise expressly provides the contrary." Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. 92, 95 (1989). More directly on point, the Appeals Court has North Andover Zoning Board of Appeals Page 2 June 3, 1998 held that a regional refuse disposal district is not subject to local zoning in operating its sanitary landfill. Freetown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 4.15 (1992). MRI is not automatically exempt from local zoning, however, because MRI is itself neither the state nor a political subdivision of the state. In order to determine whether MRI is exempt from local zoning, it is first necessary to examine carefully the scope of the exemption as defined by the courts to determine whether MRI, as a private party, can claim any exemption. Even if MRI is exempt from zoning in some circumstances, it still must be determined whether the exemption would reach the precise construction activities MRI proposes.' While this issue is a close call, and MRI presents strong arguments in its favor, in our opinion MRI does not fit within the limited exemption from zoning which is available to private entities that perform essential public functions on behalf of the state or its instrumentalities. Teasdale v. Newell, 192 Mass. 440 (1906), is the first case to clearly establish the principle that local zoning laws cannot frustrate the Commonwealth's efforts to carry out essential governmental functions. In that case, the Court held that a contractor who had contracted to complete the grading work on park land owned by the Metropolitan District Commission could operate a stable "reasonably necessary for the prosecution of the [grading] work," without being subject to the usual local licensing of stables. Crucial to the decision in that case, the governmental entity (the MDC) had specifically "sanctioned" the operation of the stable as necessary for completing its goal. Id at 442. Thus, a private party seeking the zoning exemption must be engaged in work necessary for carrying out the Commonwealth's purposes. All of the cases which MRI cites for its exemption argument involve the government itself seeking the exemption from the local zoning authority, or an agent of the government carrying out activities which are essential to completing the work mandated by the government. In Freetown, supra, for example, the Greater New Bedford Regional Refuse Management District, "a body politic of the Commonwealth," itself operated the sanitary landfill, and itself argued to the zoning board of appeals that it was exempt from the zoning by-law. 33 Mass. App. Ct., at 416-417. In Teasdale, as noted, the MDC itself had approved of the operation of a stable as necessary for completing the construction work at an MDC park. In Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. 92 (1989), the Massachusetts State College Building Authority itself constructed the dormitories at issue and argued for the exemption. In Medford v. Marinucci Bros. & Co., Inc., 344 Mass. 50 (1962), the contractor was completing an interstate highway construction project on "land owned by the Commonwealth" and "as the agents of the State in ' While lessees of government land, such as MRI, are sometimes exempt from local zoning requirements, they have also been found to be subject to zoning laws, depending on the precise activities the lessee carries out. See "Applicability of Zoning Regulation to Nongovernmental Lessee of Government -Owned Property," 84 ALR3d 1187. North Andover Zoning Board of Appeals Page 3 June 3, 1998 exercising the authority of the sovereign over its own property." Id., at 54-55.2 In contrast to these cases, MRI is not a governmental entity. It is a private, for-profit corporation. Thus, unlike the regional disposal district in the Freetown case, supra, or the College Building Authority in the Salem case, supra, MRI can only make a derivative claim for zoning exemption, through either the Commonwealth of Massachusetts or through NESWC. In our view, the problem with claiming a derivative exemption through the commonwealth is that the commonwealth never intended for this to be a state facility exempt from local zoning. Instead, the commonwealth's position was that the facility would receive support from the commonwealth, but would be a privately operated, local facility. This is reflected in the early project documents and early history of the project. For example, as early as June 1978, the Commonwealth's Bureau of Solid Waste Disposal (BSWD), in the Draft Environmental Impact Report (DEIR) for this project, emphasized the primacy of local (rather than state) control over the project: [C]ritical to understanding the function of this [DEIR] is the nature of the decision-making process. Specifically, the Commonwealth .... is in a real sense limited within the existing institutional setting in the types of decisions it can make and in the degree of control it has over the choices among alternatives.... [T]he basic decisions are, in the final analysis, up to the many local governments involved.... [T]he decision to implement rests with the many communities that might participate and who must solve their solid waste disposal problem one way or another. Ick, at iii. Consistent with this original understanding, by the early 1980's, the state had minimal involvement with the operation of the MRI facilities. (See the December 1997 Report of the Inspector General regarding the MRI facilities, p. 30) These facts stand in sharp contrast to the relevant Massachusetts cases, in which the zoning exemption was sought by the government agency itself, or by an agent mandated by the Commonwealth to carry out the challenged activity. The 1978 DEIR also listed the many local permits the resource recovery facility would have to seek, including approvals from the Planning Board, Board of Health, and, most importantly, the Zoning Board of Appeals. Id., at 68-70. Even more tellingly, when one local resident of North Andover commented that the facility as proposed would violate the applicable height limit in the zoning bylaw, the BSWD stated that "the design, construction and operation of the proposed Facility shall be subject to applicable local laws and regulations." FEIR, p. 22, l By contrast, in Village on the Hill, Inc. v. Massachusetts Turnpike Authority, 348 Mass. 107, 118-119 (1964), the SJC held that "excess" land held by the Authority would not necessarily be exempt from local zoning, when occupied or used by a private party. North Andover Zoning Board of Appeals Page 4 June 3, 1998 responding to a comment letter published on page 74 of the FEIR. Thus, the commonwealth never believed that this facility was exempt from local zoning under sovereign immunity principles. Instead, it expressly characterized the activities of the resource recovery facility as local actions subject to local zoning control, and expressly noted that the facility was subject to local zoning.' MRI also seemed to share this understanding in the early years of the project. In 1982, it obtained a height variance for the boiler building, raising no objection to the jurisdiction of the zoning board. Its own conduct can be read as reflecting its belief, at least as of 1982, that it is subject to the zoning by-laws. In 1983, the Town of North Andover floated Resource Recovery Revenue Bonds pursuant to G.L. c. 40D to finance the construction of MRI's facilities. G.L. c. 40D, §21(h) specifically provides: The establishment and operation of solid waste disposal facilities hereunder shall be subject to applicable laws except as otherwise provided herein. All of this early project history strongly suggests that this facility was always intended to be subject to local regulation. In our view, the early, contemporaneous understandings of the commonwealth, MRI, and the town are entitled to great weight, and should not lightly be disturbed by a new legal interpretation. MRI has a stronger argument that it is exempt, derivatively, from zoning regulation because NESWC itself would be exempt. NESWC is a "body politic and corporate" which shall be considered "a public instrumentality." In "the exercise of its powers [NESWC] shall be deemed to be" carrying out "an essential governmental function." St. 1988, c. 328, §1. Were NESWC itself constructing the proposed air pollution control improvements, or were MRI truly a contractor or agent of NESWC's, the zoning by-laws would not apply. See, Freetown, supra (regional disposal district is a body politic and corporate carrying out essential public purpose, ' The lease between the Commonwealth and MRI also makes it clear that the Commonwealth did not intend MRI to be exempt from local zoning. It explicitly prohibits MRI, in section 2.5, from performing any work or operating its facility "in violation of applicable statutes, ordinances, regulations and codes, and the requirements of any regulatory authorities." MRI is further required to "obtain all necessary licenses, permits and approvals appropriate to or required" for its operations. While this language could be characterized as boilerplate, the fact that the Commonwealth chose to incorporate traditional boilerplate terms is consistent with the conclusion that the Commonwealth expected MRI to be subject to local zoning, and this language is quite inconsistent with any notion that MRI would be exempt from zoning. •r North Andover Zoning Board of Appeals Page 5 June 3, 1998 and therefore exempt from zoning). Here, however, NESWC is not making the improvements itself, and MRI is not carrying out the instructions or mandates of NESWC. Instead, under the NESWC Service Agreements, MRI notified NESWC that it believes certain air pollution control improvements must be completed. NESWC formally objected to MRI's proposal, on a number of grounds. Of particular relevance to the present issues, NESWC objected to paying for the full costs of the retrofit, as the member communities will only enjoy the benefits of the retrofit for five years, which is considerably less than the useful life of the retrofit. Litigation is now pending between the parties over whether NESWC can be held responsible for 100% of the cost of the improvements, given the extent to which MRI derives a private benefit. NESWC also challenged whether portions of the proposed improvements are even necessary. The parties are now in arbitration over the scope of the needed improvements. More generally, it is difficult to characterize the relationship between NESWC and MRI as one in which MRI acts as NESWC's agent in carrying out a public purpose. In reality, NEWSC and MRI have an arm's-length, business relationship that has been marked by strong disagreement over the propriety of the respective Service Agreements, and extensive litigation over a number of disputes. Moreover, while in one respect the facility is currently being operated on behalf of NESWC (in the sense that the NESWC communities pay all the costs and receive most of the revenues), the facility has always been owned and operated by a private entity. And, in 2006, the relationship with NESWC ends entirely, and the facility becomes a purely private, merchant facility, indistinguishable from many other similar facilities in the commonwealth and elsewhere. Given the historical relationship between MRI and NESWC, and the serious disputes between NESWC and MRI over the need for the improvements that are the subject of this variance, we do not believe that MRI can be said to be carrying out work "reasonably necessary for the prosecution" of any contract with NESWC (Teasdale, 192 Mass., at 442), or even that NESWC has contracted with MRI to complete the work in question. Thus, while MRI correctly states the general rule of law, that "State instrumentalities are immune from municipal zoning regulations," Salem, supra, the facts here show on balance that MRI is neither itself a state instrumentality, nor an agent carrying out work necessary to complete a project on behalf of a state instrumentality. Therefore, it is our opinion that the retrofit is not exempt from the local zoning regulations. H. ZONING EVIMUNITY UNDER G.L. C. 40A, §9. MRI also contends that a state law, G.L. c. 40A, §9, exempts MRI from the requirement of obtaining a variance. We do not agree that the statute applies. The pertinent North Andover Zoning Board of Appeals Page 6 June 3, 1998 portion of the statute is set forth below: A facility ... which has received a site assignment ... shall be permitted to be constructed ... on any locus zoned for industrial use unless specifically prohibited by the ordinances and by-laws of the city or town ... in effect as of July first, nineteen hundred and eighty-seven; provided, however that all permits and licenses required by law have been issued to the proposed operator. A city or town shall not adopt an ordinance or by-law prohibiting the siting of such a facility ... on any locus zoned for industrial use, or require a license or permit granted by said city or town ... except a special permit imposing reasonable conditions on the construction or operation of such a facility, unless such prohibition, license or permit [requirement] was in effect on or before July first, nineteen hundred and eighty-seven, provided, however, that a city or town may adopt and enforce ... an ordinance ...of general application that has the effect of prohibiting the siting or expansion of a facility in [recharge areas of surface water supplies, wetlands, or zones of contribution of groundwater supplies]. No special permit authorized by this section may be denied for any such facility by any city or town... [Emphasis added]. This statute divides the world of solid waste facility zoning into two categories: 1) pre - 1987 zoning, and 2) post -1987 zoning. Zoning provisions in place as of 1987 may be lawfully applied to prohibit solid waste incinerators, provided a bylaw "specifically" prohibits them, and does not do so merely by implication. Pre -1987 bylaws also may subject incinerators to dimensional requirements, including the requirement of obtaining a variance. In contrast, provisions enacted after 1987 may not prohibit landfills in industrial districts, unless the proposed site is in one of three enumerated areas. Post -1987 provisions also may not require additional permits or licenses, except a special permit, which may not be denied. See Freetown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415, 419 (1992), in which the Appeals Court ruled that "[p]rohibitions of, or license or permit requirements for, such a facility [Le, a landfill] in effect as of July 1, 1987 are valid." Applying this statutory rule here, the height restriction was in place prior to 1987, as demonstrated by the fact that MRI applied for and obtained a variance from this restriction. As a result, the requirement of obtaining a variance from this restriction is a "license or permit [requirement] in effect as of 1987", and therefore may be validly applied. III. EXISTING VARIANCE MRI also contends that it does not need a new variance, because the height of the new North Andover Zoning Board of Appeals Page 7 June 3, 1998 facility will be lower than the existing facility. MRI contends that the existing variance in effect changed the applicable height limitation for the site of the facility. Because that height will not be exceeded, the argument goes, there is no need for an additional variance. Frankly, we could find no statute or case law that definitively resolves this dispute. Nor is the existing variance clear on this matter. On the one hand, it is plausible to believe that when the ZBA issued the original variance, it intended for that variance to apply to the specific facility shown in the plans plus any modifications to the facility, provided that the modifications did not increase the height above the limits set forth in the variance. On the other hand, it is plausible to believe that the ZBA may have intended for the variance to apply only to the specific components of the facility that were presented to the ZBA at the time, such that any new components would require a separate variance. One way to resolve this dispute is to focus on how the term "structure" is defined in the zoning bylaw. The bylaw defines structure as "a combination of materials to form a construction that is safe and stable, including, among others, buildings... towers ... [and] trestles." Zoning Bylaw, §2.68. Applying this definition, the equipment that is the subject of this variance request - - the Spray Dryer Absorbers and the Lime Silos-- are arguably separate structures, even though they are attached to the existing facility. Further support for this proposition is found in section 7.4, which indicates that accessory structural features are subject to height limits of either 65 or 85 feet. In our view, the Spray Dryer Absorbers and the Lime Silos are accessory structural features, and hence are independently subject to the applicable zoning requirements. However, we emphasize that this presents a close call, and there is room for legitimate difference of opinion in this respect. IV. PRACTICAL CONSIDERATIONS We also believe that there are intensely practical reasons why this Board should not rule that MRI is exempt from the zoning requirements, and instead should reach the merits of the request. As we have stated in this memo, all of the arguments presented by MRI are cogent, well - reasoned, and potentially correct, although on balance we disagree with them. Hence, it is impossible to predict how a reviewing court will decide these issues. However, if this Board were to rule that MRI is exempt from zoning and therefore not decide the merits of the variance request, it is quite conceivable that a reviewing court could overrule that decision, and then remand the case to this Board to decide the merits of the request. If this occurs, a significant amount of time and effort will have been wasted. On the other hand, if this Board reaches the merits of the dispute, it will have completed its work and moved this case along, leaving it up to the judicial branch to rule on the novel and difficult issues of zoning immunity raised by MRI. Indeed, the issues of immunity appear to be far more difficult than the underlying merits of the variance request itself. I:\clients\nan\zbamem.nan cl Cy 6 o 0 6 0 o o 0 0 C/ C -C 4C L -f hi is" C- �� Y / 117'- end Z,17 e A . -T �rUhJ-= -19' +c• 16: clo EERfZTE I IJ, CLISHtZRD"'. I tIMELL 7?c017 0 R. 101 FAX COVER SHEET ATTQRNEYS AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 Telephone: (617) 742-4340 Facsimile: (617) 742-0170 E -Mail: kkimmell@bck.corn www.bck.com DATE: June 3, 1998 CLIENTICASE NO: NANAVHEIPER TO: Mary 1ppolito FACSIMILE NO: 978 698-9556 FROM: Ken Kimmell COMMENTS: Enclosed is a cover laxer and legal memo for the Z$A. If it is not too late, please put these documents into their packets. Thank you. NUMBER OF PAGES (INCLUDING COVER SHEET) BEING TRANSMITTED; 9 06/03/98 15:51 TX/RX N0.9658 P.001 0 JUN -03-1338 16:00 BEF.tJE,TE I I J • i_:US,HNEK I Mt TELL 742CII71D P.02 BERNSTEIN, CUSHNER & KNELL P.C. ATTORR'EYS AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E-mail:bck@tiac.net Je&CV M. Bernstein Stacey L. Cuslmcr Kenneth L. Kimmel] Elisabcth C_ Goodman Charles Harak Erin M. O'Toole Suranne. M. La Mantia A160 AOMMDd to PraWiee in "iforniB • • Akw A4MM G4 to PMAice in Naw YOM a nd Di-tHd of cwt"a June 3, 1998 BY FACSEVEME: 978 6811-9556, AND BY FIRST CLASS MAIC.. Meyers of the Zoning Board of Appeals of North Andover North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: MRI Zoning Variance Dear ZBA Members: Westem Massachusetts Office: 20 BANK POW, SUITE 200 PITTSFIELD, MASSACHUSETTS 01201 (413) 442.3773 Facsimile (413) 442-3774 E-mail: bckberf Qbck.com Enclosed please find a memorandum relating to certain legal issues raised by MRI in the zoning variance proceeding. I will be attending the June 9t° hearing and will be happy to discuss these issues further with you at that time. cc: Martin Healy, Efiq. Gayle Lynch, Esq. Robert Halpin i:\0Ee dalmm\Zb" aslo Sincerely, I� ! et L. 06/03/98 15:51 TX/RX N0.9658 P.002 _ N �Tu_ ,4—cl_,—I g98 16.0c) BERN.STE I N • r_:IJ.SHNERt<K: I f'1P9ELL BERNSTEIN. CUSHNER KIMMELL P.C. ATiC)RINEYS AT LAw 7420170 F. r,_, ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E•mail:bck=tiacmet Jeffrey M. Bcrostein Stacey L. Cushner Kcanoth L- Kim=11 " Elisabeth C. G(x>dman " Charlks Rank Erin M. O'Twle Suzanne M. La Manvia Also Adm0tr4 to Pred6W In Gptltanva • • Alse ACmttted to PmCl+oo in New YOM and t>latrlat of Calumbin MEMORANDUM Western Massachusetts Office: 20 BANK ROW, SUITE 200 PITTSFIELQ, MASSACHUSETTS 01201 (413) 442.3773 Faosimiie (411 3) 442.3774 E-mail: bekberk@bck.com To: North Andover Zoning Board of Appeals From: Ken Kimmel], Charles Harak, Bernstein, Cushner & Vimmel.l, P -C. Date, June 3, 1998 Re: MRI Zoning variance You asked this firm to provide you with guidance on certain legal issues raised by NM in this variance proceeding. Specifically, you asked our opinion as to the following- 1) whether MRI is exempt from local zoning under governmental immunity principles; 2) whether MRI is exempt from zoning under a zoning statute exemption for certain solid waste facilities-, and 3) whether the existing variance already allows the additional components to be installed by MM. This firm has carefully reviewed the arguments advanced by MRI. Fortunately, we were already familiar with some of these arguments, as we were retained by the Board of Selectmen approximately eighteen months ago to analyze the local regulatory requirements that apply to this facility. In our view, the three arguments presented by Mita raise difficult and novel issues of law and fact, and reasonable minds could disagree on them. However, on balance we believe that MMI is subject to local 'zoning, and we therefore recommend that the Zoning Board of Appeals reach the merits of the variance request. L MRI IS NOT EXEMPT FROM LOCAL ZONING UNDER GOVERNMENTAL WaWNITY PRINCIPLES MRI argues that it is ,immune from zoning" because MR1 is performing an essential govenunent function. Massachusetts courts have consistently held, "[a]s a general proposition, [that] the State and State instrumentalities are immune from municipal zoning regulations, unless a statute otherwise expressly provides the contrary." Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct- 92, 95 (1989). More directly onpoint, the Appeals Court has 06/03/98 15:51 TX/RX N0.9658 P.003 N =HNER20<IMMELL 742017C,I P. L-1-4. JUN -1213-1 R36 1G� G2 BER'hJ_�TEIhJ. i�:; I.'_; North Andover Zoning Board of Appeals Page 2 June 3, 1998 held that a regional refuse disposal district is not subject to local zoning in operating its sanitary landfill. Freetown v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415 (1992). MRI is not automatically exempt from local zoning, however, because MRI is itself neither the state nor a political subdivision of the state. in order to determine whether MRI is exempt from local zoning, it is first necessary to examine carefully the scope of the exemption as defined by the courts to determine whether MRI, as a private party, can claim any exemption. Even if MRI is exempt from zoning in some circumstances, it still must be determined whether the exemption would reach the precise construction activities MRI proposes.' While this issue is a close call, and MM presents strong arguments in its favor, in our opinion MRI does not fit within the Iitnited exemption from zoning which is available to private entities that perform essential public functions on behalf of the state or its instrumentalities. Teasdale v Newell, 192 Mass. 440 (2906), is the first case to clearly establish the principle that local zoning laws cannot frustrate the Commonwealth's efforts to carry out essential governmental functions. In that case, the Court held that a contractor who had contracted to complete the grading work on park land owned by the Metropolitan District Commission could operate a stable "reasonably necessary for the prosecution of the [grading] work," without being subject to the usual local licensing of stables. Crucial to the decision in that case, the governmental entity (the MDC) had specifically "sanctioned" the operation of the stable as necessary for completing its goal. Id at 442. Thus, a private party seeking the zoning exemption must be engaged in work necessary for carrying out the Commonwealth's purposes. All of the cases which MRI cites for its exemption argument involve the government itself seeking the exemption from the local zoning authority, or an agent of the government carrying out activities which are essential to completing the work mandated by the government. In Freetown, supra, for example, the Greater New Bedford Regional Refuse Management District, "a body poli#ic of the Commonwealth," itself operated the sanitary landfill, and itself argued to the zoning board of appeals that it was exempt from the zoning by-law. 33 Mass. App. Ct., at 416-417. In Teasdale, as noted, the MDC itself had approved of the operation of a stable as necessary for completing the construction work at an MDC park. In Inspector of Buildings of Salem v. Salem State College, 28 Massa App. Ct. 92 (1989), the Massachusetts State College Building Authority itself constructed the dormitories at issue and argued for the exemption. in Medford v. Marinucci Bros & Co., Irrc. , 344 Mass. 50 (1962), the contractor was completing an interstate highway construction project on "land owned by the Commonwealth" and "as the agents of the State in ' Whde lessees of government land, such as NM are sometimes exempt from local zoning requirements, they have also been found to be subject to zoning laws, depending on the precise activities the lessee carries out. See "Applicability of Zoning Regulation to Nongovernmental Lessee of Government -awned Property," 84 ALR3d 1187, 06/03/98 15:51 TX/RX N0.9658 P.004 N iu,4-0 `-199B 16: 01 BERNSTE I N, C:lJSHNER.-":E•'.. I Mf ELL 7420170 F. 0555 North Andover Zoning Board of Appeals Page 3 June 3, 1998 exercising the authority of the sovereign over its own property." Id., at 54-55.2 In contrast to these cases, MR1 is not a governmental entity. it is a private, for-profit corporation. Thus, unlike the regional disposal district in the Freetown case, supra, or the College Building Authority in the Salem case, suprq MRI can only make a derivative claim for zoning exemption, through either the Commonwealth of Massachusetts or through NESWC. in our view, the problem with claiming a derivative exemption through the commonwealth is that the commonwealth never intended for this to be a state facility exempt from local zoning. Instead, the commonwealth's position was that the facility would receive support from the commonwealth, but would be a privately operated, local facility. This is reflected in the early project documents and early history of the project. For example, as early as June 1978, the Commonwealth's Bureau of Solid Waste Disposal (BSWD), in the Draft Environmental Impact Report (DEIR) for this project, emphasized the primacy of local (rather than state) control, over the project. [C]ridcal to understanding the fianetion of this IDEM] is the nature of the decision-making process. Specifically, the Commonwealth .... is in a real sense limited within the existing institutional setting in the types of decisions it can make and in the degree of control it has over the choices among alternatives.... [T]he basic decisions are, in the final analysis, up to the many local governments involved.... [T]he decision to im lm em rests with the many communities that might participate and who must solve their solid waste disposal problem one way or another. Id, at iii. Consistent with this original understanding, by the early 1980's, the state had minimal involvement with the operation of the MRI facilities. (See the December 1997 Report of the Inspector General regarding the MRI facilities, p. 30) These facts stand in sharp contrast to the relevant Massachusetts cases, in which the zoning exemption was sought by the government agency itseit or by an agent mandated by the Commonwealth to carry out the challenged activity - The 1978 DEIR also listed the many local permits the resource recovery facility would have to seek, including approvals from the Planning Board, Board of Health, and, most importantly, the Zoning Board of Appeals. Id, at 68-70. ]even more tellingly, when one local resident of North Andover commented that the facility as proposed would violate the applicable height limit in the zoning bylaw, the BSWD stated that "the design, construction and operation of the proposed Facility shall be subject to applicable local laws and regulations." FEIR, p. 22, 2 By contrast, in Village on the Hill, Inc. v. Massachusetts Turnpike Authority, 348 Mass. 107, 118-119 (1964), the SIC held that "excess" land held by the. Authority would not necessarily be exempt from local zoning, when occupied or used by a private party. 06/03/98 15:51 TX/RX N0.9658 P.005 0 JUN -0--1998 16:02 PERNSTEIN, CUSHNERLIXIMMELL 7420170 P. CIS North Andover .Zoning Board of Appeals Page 4 June 3, 1998 responding to a comment letter published on page 74 of the FFIR. Thus, the commonwealth never believed that this facility was exempt from local zoning under sovereign immunity principles. instead, it expressly characterized the activities of the resource recovery facility as local actions subject to local zoning control, and expressly noted that the facility was subject to local zoning.' MRI also seemed to Owe this understanding in the early years of the project. In 1982, it obtained a height variance far the boiler building, raising no objection to the jurisdiction of the zoning board. Its own conduct can be read as reflecting its belief, at least as of 1982, that it is subject to the zoning by-laws. In 1983, the Town of North Andover 11oated Resource Recovery Revenue Bonds pursuant to G.L. c. 40D to finance the construction of MRI's facilities. C.L. c. 40D, §21(h) specifically provides: The establishment and operation of solid waste disposal facilities hereunder shall be subject to applicable laws except as otherwise provided herein. All of this early project history strongly suggests that this facility was always intended to be subject to local regulation_ In our view, the early, contemporaneous understandings of the commonwealth, MRI, and the town are entitled to great weight, and should not lightly be disturbed by a new legal interpretation. MRI has a stronger argument that it is exempt, derivatively, from zoning regulation because NESWC itself would be exempt. NESWC is a "body politic and corporate" which shall be considered "a public instrumentality." In "the exercise of its powers [NESWC] shall be deemed to be carrying out "an essential governmental function." St. 1988, c. 328, § 1. Were NESWC itself constructing the proposed air pollution control improvements, or were MRI truly a contractor or agent of NESWC's, the zoning by-laws would not apply. See, Freetown, supra (regional disposal district is a body politic and corporate carrying out essential public purpose, 3 The lease between the Commonwealth and iV1RI also :Hakes it clear that the Commonwealth did not intend MRI to be exempt from local zoning. It explicitly prohibits MRI, in section 2.5, from performing any work or operating its facility "in violation of applicable statutes, ordinances, regulations and codes, and the requirements of any regulatory authorities." MRI is further required to "obtain all necessary licenses, perrnits and approvals appropriate to or required" for its operations. While this language could be characterized as boilerplate, the fact that the Commonwealth chose to incorporate traditional boilerplate terms is consistent with the conclusion that the Commonwealth expected MRI to be subject to local zoning, and this language is quite inconsistent with any notion that MRI would be exempt from zoning. 06/03/98 15:51 TX/RX N0.9658 P.006 0 IS: @. BEF'hJ.'=:TE I PJ. i=:U HhJEF '•:h I F'1f`'IEUL -4201 ^» F'. ;=t^ North Andover Zoning Board of Appeals Page 5 June 3, 1998 and therefore exempt from zoning). Here, however, NESWC is not making the improvements itself, and MRI is not carrying out the instructions or mandates of NESWC. Instead, under the NESWC Service Agreements, MRI notified NESWC that it believes certain air pollution control improvements must be completed. NESWC formally objected to MTs proposal, on a number of grounds. Of particular relevance to the present issues, NESWC objected to paying for the full casts of the retrofit, as the member communities will only enjoy the benefits of the retrofit for five years, which is considerably less than the useful life of the retrofit. Litigation is now pending between the parties over whether NESWC can be held responsible for 100% of the cost of the improvements, given the extent to which MRI derives a private benefit. NESWC also challenged whether portions of the proposed improvements are even necessary. The parties are now in arbitration over the scope of the needed improvements. Moregenerally, it is difficult to characterize the relationship between NESWC and MRI as one in which NMI acts as NESWC's agent in carrying out a public purpose. In reality, NEWSC and MRI have an arm's-length business relationship that has been marked by strong disagreement over the propriety of the respective Service Agreements, and extensive litigation over a number of disputes. Moreover, while in one respect the facility is currently being operated on behalf of NESWC (in the sense that the NESWC communities pay all the costs and receive most of the revenues), the facility has always been owned and operated by a private entity. And, in 2006, the relationship with NESWC ends entirely, and the facility becomes a purely private, merchant facility, indistinguishable from many other similar facilities in the commonwealth and elsewhere. Given the historical relationship between MRI and NESWC, and the serious disputes between NESWC and MRL over the need for the improvements that are the subject of this variance, we do not believe that MRI can be said to be carrying out work "reasonably necessary for the prosecution" of any contract with NESWC (Teasdale, 192 Mass., at 442), or even that NESWC has contracted with MRI to complete the work in question. Thus, while MRI correctly states the general rule of law, that "State instrumentalities are immune from municipal zoning regulations," Salem, supra, the facts here show on balance that MR1 is neither itself a state instrumentality, nor an agent carrying out work necessary to complete a projecton behalf of a state instrumentality. Therefore, it is our opinion that the retrofit is not exempt from the local zoning regulations. II. ZONING BEWUNITX UNDER G.L. C. 40A, $9. MRI also contends that a state law, G.L. c. 40A, §9, exempts MR1 from the requirement of obtaining a variance. We do not agree that the statute applies. The pertinent 06/03/98 15:51 TX/RX N0.9658 P.007 N 16:0-7_7 North Andover Zoning Board of APPeals Page 6 June 3, 1998 portion of the statute is set forth below: A facility ... which has received a site assignment ... shall be permitted to be constructed ... on auy locus zoned for industrial use unless specifically prohibited by the ordinances and by-laws of the city or town ... in effect as of July first, nineteen hundred and eighty-seven, provided, however that all permits and licenses required by lav have been issues' to the proposed operator. A city or town shall not adopt an ordinance or by-law prohibiting the siting, of such a facility ... on any locus zoned for industrial use, or require a license or permit granted by said city or town ... except a special permit imposing reasonable conditions on the construction or operation of such a facility, unless such prohibition, license or permit [requirement] my in effect on or before July first, nineteen hundred and eighty-seven, provided, however, that a city or town may adopt and enforce ... an ordinance ...of general application that has the effect of prohibiting the siting or expansion of a facility in [recharge areas of surface water supplies, wetlands, or zones of contribution of groundwater supplies]. No special permit authorized by this section may be denied for any such facility by any city or town... [Emphasis added]. This statute divides the world of solid waste facility zoning into two categories: 1) pre - 1987 zoning, and 2) post -1987 zoning. Zoning provisions in place as of 1987 may be lawfully applied to prohibit solid waste incinerators, provided a bylaw "specifically" prohibits them, and does not do so merely by implication. Pre -1987 bylaws also may subject incinerators to dimensional requirements, including the requirement of obtaining a variance. In contrast, provisions enacted after 1987 may not prohibit landfills in industrial districts, unless the proposed site is in one of three enumerated areas. Post -1987 provisions also may not require additional permits or licenses, except a special permit, which. may not be denied. See Freetoxm v. Zoning Board of Appeals of Dartmouth, 33 Mass. App. Ct. 415, 419 (1992), in which the Appeals Court ruled that "[p]rohibitions of, or license or permit requirements for, such a facility [i. e, a Iandfillj in effect as of July 1, 1987 are vaIid." Applying this statutory rule here, tate height restriction was in place prior to 1987, as demonstrated by the fact that MRI applied for and obtained a variance from this restriction. As a result, the requirement of obtaining a variance from this restriction is a "license or permit [requirement] in effect as of 1987", and therefore may be validly applied. M. E STING VARMNCE NM also contends that it does not need a new variance, because the height of the new 06/03/98 15:51 TX/RX N0.9658 P.008 M p TUPJ—� � ;-1998 1,5:04 FERhdSTE I f 4. C:L 1_,HdER.•>c,F<:; I tIlELL 742017 C-1 P. C19 North Andover Zoning Board of Appeals Page 7 Lune 3, 1998 fatality will be lower than the existing facility. MRI contends that the existing variance in effect changed the applicable height limitation for the site of the facility_ Because that height will not be exceeded, the argument goes, there is no need for an additional variance. Frankly, we could find no statute or can law that definitively resolves this dispute. Nor is the existing variance clear on this matter. On the one hand, it is plausible to believe that when the ZBA issued the original variance, it intended for that variance to apply to the specific facility shown in the pians plus any modifications to the facility, provided that the modifications did not increase the height above the limits set forth in the variance, On the other hand, it is plausible to believe that the ZBA may have intended for the variance to apply only to the specific components of the facility that were presented to the ZBA at the time, such that any new components would require a separate variance. One way to resolve this dispute is to focus on how the term "structure" is defined in the zoning bylaw. The bylaw defines structure as "a combination of materials to form a construction that is safe and stable, including, among others, buildings... towers ... [and] trestles," Zoning Bylaw, §2.68. Applying this definition, the equipment that is the subject of this variance request - - the Spray Dryer Absorbers and the Lime Silos-- are arguably separate structures, even though they are attached to the existing facility. Further support for this proposition is found in section 7.4, which indicates that accessory structural features are subject to height limits of either 65 or 85 feet. In our view, the Spray Dryer Absorbers and the Lime Silos are accessory structural features, and hence are independently subject to the applicable zoning requirements. However, we emphasize that this presents a close call, and there is room for legitimate difference of opinion in this respect. iV. PRACTICAL CONSIDERATIONS We also believe that there are intensely practical reasons why this Board should not rule that MRI is exempt from the zoning requirements, and instead should reach the merits of the request. As we have stated in this memo, all of the arguments presented by MRI are cogent, well - reasoned, and potentially correct, although on balance we disagree with them. Hence, it is impossible to predict how a reviewing court will decide these issues. however, if this Board were to rule that MRI is exempt from zoning and therefore not decide the merits of the variance request, it is quite conceivable that a reviewing court could overrule that decision, and then remand the case to this'Board to decide the merits of the request. If this occurs, a significant amount of time and effort will have been wasted. On the other hand, if this Board reaches the merits of the dispute, it will have completed its work and moved this case along, leaving it up to the judicial branch to rule on the novel and difficult issues of zoning immunity raised by MRI. Indeed, the issues of immunity appear to be far more difficult than the underlying merits of the variance request itself. TOTAL R.09 06/03/98 15:51 TX/RX N0.9658 P.009 M Jur4-15-1g_e 11 �a SEPN'_ TE I P4 , f:UG-HNEPB.K I Mh1ELL COXXO WERLT8 OF XAB9iAC2=ETTS X0SS,C [U8$TTS RZ7V88T2=, ZNC. , . Plalztiff, 7142017�J P. 0.: BCP RIOR COU=RT Gi72L ACTION No- 97-06071C P. YA• P7►u= i DODGE, LLP, DDii'i''SX".2 SOLID X"T3 CO3"1Tx2, - T= Ca�[1iD87RALT8 Ot XXfia2U==8X*-"T8 C"XC E OF TSS 2$S?3CTCR G.MMJL Z asd 3t48EST S. CEAABOLI, Defsadants. Mice sent 9/98 X=M2_a=vi5or DaC2a=ax XND ORDER . J . C . C7H P16a= T * 8 ]dK]^_" 0[ POA P 37T2 Z firxK • nTya pan=--- 4Y�4 �T.�wgA,+wTQittg 1rn rmT=Q= ICUT"D PC 2.:i. COlip�TA VT "A T -m 12" Tz 'i`fl TSE CLQ" Arg ]►cT .P.H. b D The plaintif., Massachusetts Refusetach, Inc. ('MRV) has filed S.T. ...G. this contract action int.XliA seeking a declaratory judgment that ( � the defendant, Northeast Solid Waste Committee NESWCl' is responsible for certain costs under a contract. The matter is now before this court on KRIS motion for partial su=mmary judgment regarding the same. For the following reasons, the motion is In the 1970s, through theefforts of the Commonwealth of Massachusetts Bureau of Solid Waste Disposal (the 'Bureau"), negotiations began between NESWC and Universal Oil Products, Inc, 1-1c NXSWC msmbor comcttun+ttes are: Acton, Andover, AX-,Lngtar., Sedtesd, Bozborough, lur_inroa, Carlisle. Dracut. maailton, LaxL=gton, Mancnesur-by-tho-sea, North Andover, Nortb Readinq, Peabody, Tewxzbury, vatex--own, wenham, westiord, West Kewbury, WLlmSngtoa and W1=22e3ter (Wle "M+s *r C-itla3") , I 06/15/98 11:44 TX/RX N0.9867 P.003 JUN -1E-1990 11:ga BERNSTEIN,GJSHNERIKIPINELL 7420170 P. 0.1 ('UOP"), MRIs-predacassar, regarding construction and operation of a resastrce recovery facility (the 'Facility') . The purpose of the Facility was to provide a low cost and an efficient alternative method of disposing the Mier Communities waste. In 1981, NESWc and MRI entered into a contract (the "Service Agreement"), the scope of which is the subject of this dispute. Under the Service Agreement, MR1 owns and operates the Facility which provides a solid waste disposal site for the Member Communities, converting that waste to energy. The Service Agreement expires in 2005, at which tilos MR1 will still oars the Facil: ty, but neithar parry will have any further obligations to one another. The dispute arise= out of an amendment to the Clean Air Act of 1,990 that imposes increased air pollution central requirements on k* waste -to -anergy plants, including the Facility. ThOr-a racj%Ura=�ants necessitate the installation of additional air pollution control equipment ('.he 'Retrofit') into the Facility prior to December 19, 2000. For the purpose of this motion the parties have agreed that the tatal cost of the Ret-"ofit to be approxiMataly $48.99 million. The Retrofit has a useful life of 20 to 25 years. According to the Service Agreement, Nwwc has to pay for alt+ratians and additions tc the Facility that are required by chages in the law. See Section VITA of the Servica Agreement. XRI seeks-a=zary judq ant that, based on *..he language in thea Service Agreement, this caurt declare that NF.SWC pay the entire cost of constructing the Retrofit, the cost being $48.99 million. While NESWC does not dispute that the Retrofit is a req%aired change to 2 06/15/98 11:44 TX/RX N0.9867 P.004 0 i -v r D 1 rp r N b� r e c S N e c S 08-10-98 08 ; 44AM FROM EII,ICON - ANDOVER aamcon 3 Riverside Drive andover, MA 01810-1121 DATE: To: FAX # Fp W Project # TO 96889558 P00 � X002 PHONES 081tia2-19801 FAX: 5081978-2WS NOTE. Unless 06crMse indicned or obvious from the 11,4WE" of the tramisttinal, flit, u itrttutlton contauuet itt this tacSanule nle"the W iS confidential in.16m ttion intended for the USC of the ittdividttal of Liltiry ttatt" aN ve if dic Mder of this meessage u; not disc LCttded recipttttt, or the employee ar agent responsibia � c u dcl'i>rxa It to 1& i icerwr Y rr'A. W. You are. hrxt�ry notified That d +�iirtution, dtstrtbtttion or copying of this otymmunit.a,)M is &tvic1ly, yntcthihlat•„d 11 vtroea Yatutw to cx":rvett than tom+7taastc ttton in err*r, please notify us at the telephone net:nber listed ajvvc CO► NE"NTS: r NL1I BER OF PAGES 0 N('l,A_ DJNf a" CO VER S Y 11 V-] � ��itJM a �:us21[9Uxx.UO(11Casclwb1231.doc•ildlgueat2tl 08/20/98 08:39 TX/RX N0.1078 P.001 0 " 08-2-0-98 08:44AM FROM FMCON - ANDOVER TO 96889556 TIES OF INTEREST; !WBIECT PROMTV Mu►p IPAR 01 WAKE 34 --Zee DATE: TOWN OF NORI-H ANDOWR P 0 Pi 241) 0 2 08/20/98 08:39 TX/RX N0.1078 P.002 I AUQ-14-2998 23=37 BER.NSTEIN,CUSHNEP&KINPIELL 742-0170 F. J-711 FAX COVER SEEEET URNSTEIN CUSHNER Sk IMMMELL., P.C. ATTQKNEYS..A' ;,AW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 Telephone_ (617) 742-4340 1~acs�mile, (6'17) 732-0170 E -Mail: kkimmeli@ubck.com www.bck-corn DATE: Atigust 14, 1998 CLIENT/CASE NO'. NAiN_1'ER TO: MMY 1ppolito FACSIMILE NO; r7s 688-9556 FROM, Kcn'Kimmcil Cl mjW,NTS- Enclosc4 iS a hadnwrillm insert to the `LBA deeiSiotl on whether the 'rapirc ..1 vlriancc. Tn case yon hzi-c iYoublc Ycaiding'my handwriting, the insert is typed be vw; Insart: Critic.'e1 to thio determination is orc fact that when the facility %Vas First proposed, the Commonwealth rcprescntndthat itwould be snbjcct to local 7,oning_ Consistent with this representation, NIM applied for and obtained zoning variances, without ever claiining that it was immunc from zoning_ N�tF PACES ( .UDING COVF-R SBFT' I ) ITING "IRANSWI-11a): 2 PLEASE CALL (617) 742-4:40 IF ALL PAGE'S ARE NOT RECEIVED- �NTATEMENT OF CONFIDENTIALITY This facsimile transmission contains inf ormaiion frvn► the larvrm r� f Bernstein, fastener cYc Kimmeli, F. G The information contained is c:onf tdenfial and/or privileged, ani# it is iwended onlyfor or tine use of the addressee named on the transmittal sheet. If you are not the intended address, please note that any disclosure, copying, dissttxibm on or uce r,, f'thiv fared 08/14/98 13:26 TX/RX N0.1013 P.001 0 PUa-14-1998 1.3:37 BERNSTEIN,CU-c;HNEPLP.:KINMELL 7420170 P.02 Arty' appeal $h14 tw filed ,Mtt,rn resat da" the diol of rilmg of this coact in the office of the Town Clerk- NOTICE OF DECISION 213.+1 Hott Rd. ADDRESS: 285 Holt Rd. Win I t ! J%Wpc vi.i-W. North Andover, RAA Oii345 HEAR(NC3: 619196 The Board of Appeals held a regular meedi7g 6n Tu03d2Y evening, June 9. 1998 upon the application Of Mass"husetU RefusetecR, irtc_, 2615 Holt Rd.. North Andover, MA, under Section 10.4 of the Zoning Bylaw from deta:rrttinations made by the Building Commissioner comemir19 the construction of air emissions control equipment and adjacent 1irrle storage silos at a height that exceeds the maxirnuM building and structural height 11mltstions and the maintenance of an existing boiler building that was the subject of a verfance issued on April 13, 1982. Applicant requests a deterynination that a builds re permit for the proposed air emissionS Control equipment and adjaCent lime Storage silos does not req v21i9nCS from the applicable height limitation in 1-2 District. The following members were present- WiIli8m J. Sullivan. Robert Ford. Scott Karpinski, Ellen Mdntyte. George Earley. The hearing was advertised 1n the Lawrence Tribune on 512611ge & 612/28 and all abutter's were notified by regular mail. Upon a motion made by George Earley and seconded by Robert Ford, the Board of Appsats unanimously voted to make a posrtivs determtmtian that the petttiorler does require a VAPJANCE for height of proposed addition and/or modifications of existing buildings. h is the opinion of the Beard that this facility fMRij is not exempt from local Zoning udder Governmental immunity principles beca I secs til is itself neither a Slate nor a political subdivision of the State nor an agent Of the States Or any Po subdivision in seeking the variance for the retrofit of the facffity The Board sfso finds the Zorrirt .� ^^a imrrluRity under Massachusetts General law, Chapter 4dA., 5e tan 3. r C use the height lim tation and variance requimmeMs "r& in placs prior 1987. tnally, life Board finds that the earlier vaftlae +vas intended for the Spadfit: facilities as set f h in tile. plans tnat accompanied the earner variance application and not the proposed additions d modifications. Votirio in favor` Wiliam J. Sutrrvan, Robert l=ord, Scott Karpinski, Ellen Mcintyre filly Earley., decocttl5 11�zwlllla-m J. Sullivan, �heirmart Zoning Board ©f AppeWS tr"— is d Rost -it"' bmnd tax transmittal memo 7b71• e/ pager, 74 Fax M i//7r 08/14/98 13:26 el P �-011,9j �F.{"�areGeS11'�.'��.b•� � r � � TOTRL P.02 TX/RX N0.1013 P.002 N BERNSTEIN, CUSHNER KIMMELL P.C. ATTORNEYS AT LAW ONE COURT STREET, SUITE 700 BOSTON, MASSACHUSETTS 02108 (617) 742-4340 Facsimile (617) 742-0170 E-mail:bck@tiac.net Jeffrey M. Bernstein Stacey L. Cushner Kenneth L. Kimmell ' Elisabeth C. Goodman Charles Harak Erin M. O'Toole Suzanne M. LaMantia Also Admitted to Practice in California Also Admitted to Practice in New York and District of Columbia Mary Ippolito Zoning Board of Appeals of North Andover North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: MRI Zoning Variance Dear Mary: Western Massachusetts Office: 20 BANK ROW, SUITE 200 PITTSFIELD, MASSACHUSETTS 01201 (413) 442-3773 Facsimile (413) 442-3774 E-mail: bckberk@bck.com July 23, 1998 JUL 2 719% `10 BOARD OF APPEALS, Enclosed is a revised copy of the variance decision, which includes a minor change to the prior version. Specifically, paragraph 5 of the conditions contains the following new language at the end of the paragraph "as they may be amended by David Spencer or his successor." I have spoken with Chairman Sullivan about this change and he is comfortable that it reflects the intent of the Board. Also, I did not mail to you the document referenced in paragraph 5, which is intended to be attached to the variance. Enclosed is that document. Thank you for your attention to this. Please do not hesitate to contact me. Sincerely, Kenneth ell KLK: emo Enclosures cc: Martin Healy, Esq. is\clients\nan\zbalet2.nan - It P, [Bernstein, Cushner & Kimmell, P. C. ] [One Court Street, Suite 700] [Boston, MA 02108] Fax Cover Sheet DATE: July 11998 TIME: 11:01 AM TO: [Attorney Ken Kimmell) PHONE: [617-742-4340] [Bernstein, Cushner& Kimmell, P.C. FAX: [617-742-0170] FROM: [Mary teary-1ppolito PHONE: [978-688-9541]. [Zoning Board of Appeals] FAX: [978-688-9556] RE: [MRI CC: [ Number of pages including cover sheet: Message [Per your request, see attached fax relative to Massachusetts Refusestech Inc. ir l fico i 3 Riverside Drive • Andover, Massachusetts 01810-1121 • (978) 682-1980 • Fax1-2� D 915 L4 U n)', JUL 14 1998 RC)ARD QF APPEALS Project 86458-001.000 Mr. William Sullivan, Chairman and Members of the Zoning Board of Appeals Town of North Andover 120 Main St. North Andover, MA 01845 Re: MRI Emissions Control Project Application for Earth Removal Permit Dear Mr. Sullivan: This letter is offered in response to a concern raised at the public hearing on May 19, 1998 and a follow-up memo from Joan Kulash to the ZBA dated May 28, 1998. The /Kulash' rroneously stated to the Board that the plant site "is on a landfill," thus there may be ;potential soil contamination. The Board should be aware that this site is not the same parcel of land that was the former North Andover landfill and it was never used for that purpose. Therefore, the stated concerns regarding "pollutants buried beneath the soil" are unfounded. This is confirmed by the following site descriptions taken from original facility development documents including the Environmental Impact Report Documents dated October 1984. The Environmental Notification Form (ENF) which was a part of that submittal, describes two parcels of land owned by the Commonwealth of Massachusetts as follows: "The site comprises two parcels; a 14.6 acre private woodlot and a 23.9 acre area which currently serves as the North Andover sanitary landfill. " The MRI facility was constructed on the 14.6 acre woodlot described in the ENF. The following more detailed description was part of a geotechnical study that was done in conjunction with the facility's structural foundation design effort: "With the exception of two small, open, grass -covered fields, the entire site is heavily wooded, primarily with oak and pine and scattered beech, maple, birch and alders. Scrub sumac, apple trees and blackberry bushes at the southwest corner of the site indicate that a structure probably occupied this ene-andvrl -document2-96\jrichard: I yl'loei Mr. William Sullivan, Chairman and Members of the Zoning Board of Appeals Project 86458-001.000 July 13, 1998 Page 2 P portion of the site. An old abandoned excavation, probably for a barn, was noted on the site near P-10. " The Board should be aware that to supplement on-site cut and fill materials, clean structural fill was brought to the site during the original construction. Based on discussions with the original construction manager, the fill was obtained from a commercial gravel pit; therefore, there is no reason to believe these site preparation and grading activities resulted in soils contamination. Also the possibility of soil contamination resulting from commercial operation of the facility is remote, because most of the proposed excavation area in question was covered by impermeable surfaces (either pavement or concrete slabs) as part of the original construction. These impermeable surfaces would have prevented contaminants from entering the soils. For the subject Emissions Control Project, MRI proposes to stockpile all of the excavation materials on-site, and this soil will be re -utilized on-site for backfilling foundations and the minor excess used for re -grading of site contours. Given that none of the soil will be leaving the site and there is no reason to believe that contamination has occurred, it is appropriate that the Earth Removal Permit be granted to the applicant, without requiring sampling of these soils. Requiring lab testing of these soils would be an unnecessary expense to the Project and the NESWC communities. A single battery of tests as proposed in the Kulash memo, if composed of eight samples would cost on the order of $30,000, and these costs would increase proportionally as the number of samples is increased. If for unforeseen reasons it becomes necessary for MRI to truck excavated soils to an off- site location, MRI will agree to have those soils sampled by a Licensed Site Professional (LSP) and analyzed by a Massachusetts DEP approved laboratory. Appropriate tests for priority pollutant metals, hydrocarbons and dioxins would be conducted. Depending on the disposition of the soils, standards from the Massachusetts Contingency Plan Reportable Concentrations (3 10 CMR 40.1600) or DEP Policy # COMM -97-001 would apply. In summary: 1. The soils to be excavated are comprised of original site soils plus clean structural fill. ene-ander 1-document2-96\jrichard:1 Mr.William Sullivan, Chairman and Members of the Zoning Board of Appeals Project 86458-001.000 July 13, 1998 Page 3 2. The excavation material will be stockpiled on-site, not trucked off-site. 3. While stored on-site, measures will be taken to prevent wind and water erosion of the stockpile (e.g. containment, silt fences, hay bales, seeding, etc.). 4. The soils will be re -utilized on-site for backfilling foundations and re -grading construction area contours. 5. If excavated soils are sent off-site, they will be tested and managed in accordance with the applicable regulatory standards. Based on the above, MRI again requests that the ZBA act to grant the Earth Removal Permit as quickly as possible. If you have any questions or need any additional information, please call me at 682-1980. Sincerely, VJL%_kJ1N 0 J es J onnolly 4 ene-andvrl-document2-96\jrichard: l 3 From: ted schettler [tschettler@igc.apc.org] Sent: Friday, May 29, 1998 9:50 AM To: KulashJo@Allenbrook.iix.com Subject: Re: MRI Retrofit Joan, Some responses to your questions. I don't have access to the journal Chemosphere at the Harvard medical library so I can't give you any speicific citations. 'In general, because dioxin does not migrate well in soil, surface samples should give some indication of contamination I think. But, for excavation purposes, one would have to sample at various depths in order to determine how far down it has gone. These responses are from Pat Costner who follows the dioxin literature very closely. Ted Schettler He wanted to know if I had any documentation as to the depth that > soil would need to be tested. Do you have any documentation on this or know > where one would go to get? Various studies have used various depths. For example, a recent study in Japan took surface soil samples (2-3 cm) at 61 points around a 60 TPD MSW incinerator built in 1971. On the leeward side of the incinerator, soil samples had dioxin levels as high as 32,000 TEQ ppt. Any documentation on dioxin in the soil? I have Lois Gibb's book that I can refer him to. There're lots and lots of studies, including a number of studies of dioxin levels around MSW incinerators. Many are published in Chemosphere. Any other contaminants that should be tested that we can documen . LPAHs and metals. J4-**' [Bernstein, Cushner & Kimmell, P. C ] [One Court Street, Suite 700] [Boston, MA 02108] Fax Cover Sheet DATE: July ' ji998 TIME: TO: [Attorney Ken Kimmell) PHONE: [Bernstein, Cushner& Kimmell, P. C. FROM: [Mary Leary-Ippolito PHONE: [Zoning Board of Appeals] FAX: RE: [MRI CC: [ 11:01 AM [617-742-4340] FAX: [617-742-0170] [978-688-9541] [978-688-9556] Number of pages including cover sheet: Message [Per your request, see attached fax relative to Massachusetts Refusestech Inc. G.. ._v� lei-, c�fr LF✓�% �-2.� J a orr A, e.e & ze e s cr At 72e �r; „ f �-� h �o✓i��1 n R p .r., r s;.� kr 7 -C� c� G u s t '7t7 ��►- 2.6. ENVIRONMENTAL FATE - CHLORINATED COMPOUNDS �-r =- 2.6.1. Environmental Fate of Chlorinated Dibenzo-p-dioxins (CDDs) and Chlorinated /�- Dibenzofurans (CDFs) torr 1((60 I IJRJ A"112 2.6.1.1. Summary' EU r0� The growing body of literature from laboratory, field, and monitoring studies examining the environmental transformation and environmental distribution of CDDs and CDFs has increased the understanding of the fate of these environmentally ubiquitous compounds. In soil, sediment, the water column_, and probably air, CDDs/CDFs are primarily associated with particulate and organic matter because of their high lipophilicity and low water solubility. They exhibit little potential for significant leaching or volatilization once sorbed to particulate matter. The available evidence indicates that CDDs and CDFs, particularly the tetra- and higher chlorinated congeners, are extremely stable compounds under most environmental conditions. The only environmentally significant transformation process for these congeners is believed to be photodegradation of nonsorbed species in the gaseous phase or at the soil or water -air interface. CDDs/CDFs entering the atmosphere are removed either by photodegradation or by dry or wet deposition. Burial in-place or erosion of soil to water bodies appears to be the predominant fate of CDDs/CDFs sorbed to soil. CDDs/CDFs entering the water column primarily undergo sedimentation and burial. The ultimate environmental sink of CDDs/CDFs is believed to be aquatic sediments. 2.61.2. Transport Mechanisms 2.6.1.2.1. Transport Mechanisms in Air. Once released into the atmosphere, CDDs and CDFs become widely dispersed throughout the environment by atmospheric transport and deposition. In a recent assessment of the atmospheric transport and deposition of CDDs and CDFs for EPA, Hites and Harless (199 1) generated data and analyses that support the contention that background environmental levels and congener profiles of CDDs and CDFs in soils and sediment (i.e., higher rather than lower chlorinated congener patterns predominate) can be attributed, in large part, to the atmospheric transport and transformation of CDDs and CDFs released from combustion sources. Hites and Harless (1991) showed that during transport there is partitioning between the vapor and particle -bound phases.. The two key parameters controlling the phase in which a o� U_ particular congener is found are the congener's vapor pressure and the atmospheric temperature. Congeners with higher vapor pressures are found to a greater extent in the vapor phase. A comprehensive evaluation of the partitioning of dioxin -like compounds between vapor and particle phases was performed in Volume III of this three -volume document. Ambient air monitoring studies that examined the partitioning of dioxin -like compounds between vapor and particle phases were summarized in the Volume III evaluation. A theoretical approach developed by Bidleman (1988) was also discussed, and this approach was used to model "the vapor/particle (V/P) partitioning for purposes of evaluating the impact of stack emissions. Table 24 summarizes the V/P partitioning reported in several ambient air monitoring studies and also the V/P partitioning estimated by the Bidleman (1988) model. The results are presented as V/P ratios (i.e., the ratio of the concentration of a compound in the vapor phase to the concentration of that compound in the particulate phase on a volume -to -volume basis). From the review in Volume III, the following conclusions were made: Ambient air sampling methods do give an approximate indication of the V/P ratio that seems to be responsive to changes in temperature and to the degree of chlorination of the CDDs/CDFs. This is in accordance with what would be expected from their individual vapor pressures. The methods present a realistic picture of partitioning under variable ambient conditions. However, the method has certain limitations that currently prevent deriving a true measurement of V/P partitioning in the ambient air. First, the glass fiber filter is designed to capture and retain particulate matter greater than or equal to 0.1 µm diameter. Particles less§than this diameter may pass through the filter and be retained in the polyurethane foam vapor trap downstream. If this is the case, the amount of CDDs/CDFs observed to be particle -bound would be underestimated, and the amount observed to be in vapor phase would be overestimated. Second, the relatively high volume of sampled air passing through the system (200 to 400 m3 of air per 24 hours) may redistribute the more volatile congeners from the filter to the adsorbent trap by a process known as'blow-of't. Again, this would lead to an overestimate of the fraction in the vapor phase. The theoretical construct relies on current adsorption theory, considers the molecular weight and the degree of halogenation of the congeners, uses the boiling points and vapor pressures of the congeners, and uses the availability of surface area on atmospheric particles for adsorption that correspond to a variety of ambient air shed classifications having variable particulate matter densities. Four air shed classifications are described in Bidleman (1988): "clean continental", "background", "background plus local sources", and "urban". The classification used in Volume III for evaluating impacts in a rural environment is "background plus local sources". It is noted from Table 2-4 that the V/P ratios determined theoretically indicate less compound in the vapor phase (or equivalently, more in the particle phase) than is reported in the monitoring studies. This is consistent with the discussion above suggesting that the ambient L% air instrumentration could overestimate the vapor fraction because of instrumentation design and performance. Towara et al. (1993) studied the particle size distribution of atmospheric particle -bound CDD/CDFs. Three 48-hour samples were collected in a rural area of Germany during the summer of 1992. Particles with aerodynamic diameters of less than 1.35 pn (i.e., particles that have relatively long residence times in the atmosphere) accounted for 65, 84, and 82 percent of the total particle Lnass in the three samples. However, these small particles accounted for 91, 90, and 85 percent of the total mass of CDD/CDFs found in all particle sizes combined. CDDs and CDFs are removed physically from the atmosphere by wet deposition (i.e., scavenged by precipitation), particle dry deposition (i.e., gravitational settling of particles) and gas -phase dry deposition (i.e., sorption of CDD/CDFs in the vapor phase onto plant surfaces) (Rippen and Wesp, 1993; Welsch-Pausch et al., 1993). Precipitation can be very effective in removing CDDs and CDFs from the atmosphere. Listed in Table 2-5 are the average precipitation scavenging ratios for congener groups reported by Hites and Harless (199 1) and Koester and Hites (1992a) for Bloomington, Indiana, and Indianapolis, Indiana, respectively. The scavenging ratio is the ratio of the concentration of a chemical in precipitation (rain in these studies) to the concentration in the atmosphere and is a measure of the effectiveness of rain in removing the chemical. Also listed in Table 2-5 are the percentages of congener groups scavenged as particles in rain rather than as dissolved solutes in rain. Total rain scavenging ratios ranged from 10,000 to 150,000; hepta- and octa- CDDs (i.e., the congeners most strongly associated with particulates) were scavenged most efficiently. As part of their studies, Hites and Harless (1991) and Koester and Hites (1992a) also measured dry deposition of CDDs and CDFs and calculated wet and dry deposition fluxes to determine which process dominated CDD/CDF deposition. The calculated wet deposition flux for both cities was similar; 220 ng/m2-yr for Indianapolis and 210 ng/m2yr for Bloomington as might be expected based on similar rainfall patterns. However, the dry deposition fluxes differed by a factor of two between the cities (160 ng/m2-yr for Bloomington and 320 ng/m2-yr for Indianapolis). Wet deposition was calculated to be the dominant process for Bloomington; whereas, dry deposition was calculated to be the dominant process for Indianapolis. The difference was attributed to the higher total suspended particulate matter in Indianapolis air. 2.6.1.2.2. Transport Mechanisms in Soil Upon deposition of CDDs/CDFs onto soil or plant surfaces, there can be an initial loss due tdhotodegradation and/or volatilization. The extent of 6)_ initial loss due to volatilization and/or photodegradation is uncertain and may be controlled by climatic factors, soil characteristics, and the concentration and physical form of the deposited CDDs/CDFs (i.e., particulate -bound, dissolved in solvent, etc.) (Freeman and Schroy, 1989; Paustenbach et al., 1992). For example, observations from the Seveso incident indicated that when 2,3,7,8-TCDD was deposited on the soil surface, the levels in the surface soil decreased substantially in the first 6 months (DiDomenico et al., 1982). Similarly, Nash and Beall (1980) reported that 12 percent of the 2,3,7,8-TCDD applied to bluegrass turf as a component (7.5 ppm concentration) of an emulsifiable Silver concentrate volatilized over a period of nine months. Because of their very low water solubilities and vapor pressures, CDDs/CDFs below the soil surface (i.e., below the top few millimeters) are strongly adsorbed and show little upward or downward vertical migration, particularly in soils with a high organic carbon content (Yanders et al., 1989). Freeman et al. (1987) found no statistically meaningful changes in the concentration profile of 1,2,7,8 -TCDD in the top 1 em of Time Beach Soil over a 16 -month period, with the exception of the top 3mm of soil exposed to water and sunlight in which 50 percent reduction in 2,3,7,8-TCDD concentration was observed. In addition, the more chlorinated congeners do not show any significant degree of degradation below the soil surface. Although for several years it was believed that near -surface (i.e., the top lcm) CDDs/CDFs could volatilize slowly to the surface (Freeman and Schroy, 1985), recent research has indicated that CDDs/CDFs, particularly the tetra and higher chlorinated congeners, show little or no movement upward or downward in the subsurface unles& a carrier such as waste oil or diesel fuel is present to act as a solvent. For example, Palausky et al. (1986) injected 2,3,7,8-TCDD dissolved in various organic solvents into soil columns to determine the extent of vapor phase diffusion; little movement due to volatilization was observed unless the soil was incubated at 40°C. Paustenbach et al. (1992) reviewed many major published studies on dioxin persistence in soil and concluded that 2,3,7,8-TCDD probably has a half-life of 25 to 100 years in subsurface soil and 9 to 15 years at the soil surface (i.e., the top 0.1 cm). Several major studies reviewed by Paustenbach et al. (1992) and additional recent studies are summarized below. Some of these recent studies have concluded that the binding of dioxin -like compounds to soil approaches irreversibility over time due to the encapsulation of the compounds in soil organic and mineral matter (Puri et al., 1989; Puri et al., 1992). Orazio et al. (1992) studied the persistence of di- to octa-chlorinated CDDs and CDFs in sandy loam soil held in laboratory columns under water -saturated soil conditions for a period of 15 months. Measurable upward movement was reported only for the dichlorofurans and dioxins. Downward movement was only noticeable for the dichloro- and trichloro-congeners. The U mobility of the CDDs and CDFs was not significantly affected by co -contaminants (i.e., ' pentachlorophenol and creosote components) present at concentrations as high as 6,000 mg/kg. As much as 35 percent loss of the di- and trichloro-congeners due to degradation was observed; no significant degradation of the tetra- through octa-chlorinated congeners was reported (Orazio et al., 1990. Hagenmaier et al. (1992) collected soil samples around. two industrial plants in Germany in 1981, 1987, and 1989 at the same site and from the same depth, using the same sampling method. There was no indication (within the limits of analytical accuracy (+/- 20 percent)) of appreciable loss of CDDs and CDFs by vertical migration, volatilization, or degradation over the 8 -year period. Also there were no significant changes in the congener distribution pattern (i.e., tetra- through octa-) over this time period. Yanders et al. (1989) reported that 12 years after oil containing 2,3,7,8-TCDD was sprayed on unpaved roads at Times Beach, Missouri, no dioxin was discovered deeper than 20 cm. However, these roads were paved about 1 year after the spraying episode, thus preventing volatilization to the atmosphere. Yanders et al. (1989) excavated this soil and placed the soil in bins located outdoors, subject to the natural conditions of sunlight and precipitation. They C Yn reported no appreciable loss nor vertical movement of 2,3,7,8-TCDD from the soil, even in the uppermost sections, during a 4 -year study period. Puri et al. (1992) reported no migration or loss S�' 4 of 1,2,3,4 -TCDD, 1,2,3,7,8-PeCDD, OCDD, and OCDF from samples of this soil which were examined for 2 years in controlled laboratory column experiments. a Hallett and Kornelson (1992) reported finding 2,3,7,8-TCDD at levels as high as 20 pg/g in the upper 2 inches of soil obtained from areas of cleared forest in New Brunswick, Canada, where the pesticides 2,4-D and 2,4,5-T had been applied in one or more applications 24 to 33 years earlier. Pereira et al. (1986) reported contamination by CDDs of the sand and gravel aquifer underlying unlined surface impoundments.at a wood -treatment facility that had utilized creosote and pentachlorophenol. CDDs migrated both vertically and horizontally in the subsurface. Puri et al. (1992), using soil column experiments in the laboratory, demonstrated that pentachlorophenol and naphthalene and methylnaphthalene (components of creosote) readily transported CDDs/CDFs through soil. Puri et al. (1989) and Kapila et al. (1989) demonstrated that application of waste oil and anionic surfactant solutions to field and laboratory columns of Times Beach.soil can move 2,3,7,8-TCDD through soil. Walters and Guiseppe-Elie (1992) showed that methanol/water solutions (lg/L or higher) substantially increase the mobility of Y.. 2,3,7,8-TCDD in soils. Although few studies have evaluated quantitatively the transport of soil -bound CDDs/CDFs, the very low water solubilities and high K;,,,s of these chemicals indicate that erosion of soil to water bodies appears to be the dominant surface transport mechanism for CDDs/CDFs sorbed to soil (Paustenbach et al., 1992). 2.6.1.2.3. Transport Mechanisms in Water. Most CDDs/CDFs entering the aquatic environment are associated with particulate matter (e.g., dry deposition of atmospheric particles and eroded soil) and are likely to remain sorbed to the particulate matter once in the aquatic environment. Recent studies have demonstrated that dissolved CDDs/CDFs entering the aquatic environment will, like other lipophilic, low water solubility organic compounds, partition to suspended solids or dissolved organic matter such as humic substances. Muir et al. (1992) and Servos et al. (1992) recently reported that 48 hours after the addition of 2,3,7,8-TCDF, 1,3,6,8 -TCDD, and OCDD in a sediment slurry to natural lake water/sediment limnocorrals, between 70 and 90 percent had partitioned to suspended particulates. The proportion freely dissolved in water ranged from <2 percent for 2,3,7,8-TCDF and OCDD to 10 to 15 percent for 1,3,6,8 -TCDD. The remainder was associated with dissolved organic substances. Broman et al. (1992) analyzed water collected from nine sampling points in the Baltic Sea selected to be representative of background levels. The concentration of particle -associated (>0.45mm) total CDDs/CDFs varied between 0.170 and 0.390 pg/L with an average . o concentration of 0.230 pg/L (or 66 percent of total CDDs/CDFs). The total CDD/CDF concentration of the "apparently" dissolved fraction varied between 0.036 and 0.260 pg/L' with an average concentration of 0.120 pg/L (or 34 percent of the total). Subsequent calculations estimated that, on average, only 0.070 pg/L of the "apparently" dissolved CDDs/CDFs were truly dissolved. The dominant transport mechanism for removal of CDDs/CDFs from the water column is believed to be sedimentation and ultimately burial in sediments; sediment resuspension and desorption of CDDs/CDFs will vary on a site -by -site basis. Servos et al. (1992) reported that the 1,3,6,8 -TCDD and OCDD added as a sediment slurry to lake limnocorrals rapidly partitioned/settled to surficial sediments where they persisted over the 2 years of the study. The half-lives of 1,3,6,8 -TCDD and OCDD in the water column were reported as 2.6 and 4.0 days, respectively. Based on sediment trap and mixed surface layer studies of the Baltic Sea, Broman et al. (1992) report that the mass of CDDs/CDFs in the mixed surface layer at any moment Y' .. represents about 1 percent of the total flux of CDDs/CDFs to the sediment annually; this implies � µ r little recirculation of these compounds within the water column of the Baltic Sea. Broman et a1. (1992) also reported that the concentration of CDDs/CDFs in settling solids (i.e., sediment trap collected material) is approximately one order of magnitude greater than the concentration in suspended particulates. They attributed this elevated concentration to the capacity of settling solids to scavenge the dissolved fraction as the solids settle through the water column. Similar findings have been reported elsewhere (e.g., Baker et al., 1991) for PCBs and PAHs in the Great Lakes. Even though they possess very low vapor pressures, CDDs/CDFs cap volatilize from water. However, volatilization is not expected to be a significant loss mechanism for the tetra - and higher chlorinated CDDs/CDFs from the water column under most non -spill scenarios. Podoll et al. (1986) calculated volatilization half-lives of 15 days and 32 days for 2,3,7,8-TCDD in rivers and ponds/lakes, respectively. Broman et al. (1992) used measured concentrations of CDDs/CDFs in ambient air (gaseous phase) and in Baltic Sea water (truly dissolved concentrations) to calculate the fugacity gradient over the air -water interface. The fugacity ratios obtained indicated a net transport from air to water (ratios between 0.4 and 0.004). Fish and invertebrates bioaccumulate CDDs/CDFs, although the benthic and pelagic pathways by which the accumulation occurs are not well understood. Organisms have been shown to accumulate CDDs/CDFs when exposed to contaminated sediments and also to bioconcentrate CDDs/CDFs dissolved in water. However, since most of the CDDs/CDFs in the water, column and sediment are associated with particulate matter and dissolved organic matter, the accumulation observed in the environment may be primarily food chain -based starting with uptake by benthic organisms (e.g., mussels, chironomids) directly from sediment pore waters and/or by ingestion or filtering of contaminated particles. Those organisms consuming benthic organisms (e.g., crayfish, suckers) would then pass the contaminants up the food chain (Muir et al., 1992). /� h f 1 // Y/ c X (U �rd1S,+� r a.re .¢��-e,.//�. (,%-� rob C. ni S .31 ; / � V.0-i-ott S I Gw� AA c -e G91 to/L �.2 ifs if/ n '14-d A6 -Z" 0 2.6. ENVIRONMENTAL FATE - CHLORINATED COMPOUNDS -�� 2.6.1. Environmental Fate of Chlorinated Dibenzo-p-dioxins (CDDs) and Chlorinated 50/L Dibenzofurans (CDFs) A -f 11P ANa 2.6.1.1. Summary ,VcCo F'o'� The growing body of literature from laboratory, field, and monitoring studies examining Sort ?>:3' A14-, the environmental transformation and environmental distribution of CDDs and CDFs has increased the understanding of the fate of these environmentally ubiquitous compounds. In soil, sediment, the water column, and probably air, CDDs/CDFs are primarily associated with particulate and organic matter because of their high lipophilicity and low water solubility. They exhibit little potential for significant leaching or volatilization once sorbed to particulate matter. The available evidence indicates that CDDs and CDFs, particularly the tetra- and higher chlorinated congeners, are extremely stable compounds under most environmental conditions. The only environmentally significant transformation process for these congeners is believed to be photodegradation of nonsorbed species in the gaseous phase or at the soil or water -air interface. CDDs/CDFs entering the atmosphere are removed either by photodegradation or by dry or wet deposition. Burial in-place or erosion of soil to water bodies appears to be the predominant fate of CDDs/CDFs sorbed to soil. CDDs/CDFs entering the water column primarily undergo sedimentation and burial. The ultimate environmental sink of CDDs/CDFs is believed to be aquatic sediments. 2.6.1.2. Transport Mechanisms 2.6.1.2.1. Transport Mechanisms in Air. Once released into the atmosphere, CDDs and CDFs become widely dispersed throughout the environment by atmospheric transportand deposition. In a recent assessment of the atmospheric transport and deposition of CDDs and CDFs for EPA, Hites and Harless (199 1) generated data and analyses that support the contention that background environmental levels and congener profiles of CDDs and CDFs in soils and sediment (i.e., higher rather than lower chlorinated congener patterns predominate) can be attributed, in large part, to the atmospheric transport and transformation of CDDs and CDFs released from combustion sources. Hites and Harless (1991) showed that during transport there is partitioning between the vapor and particle -bound phases., The two key parameters controlling the phase in which a 0 particular congener is found are the congener's vapor pressure and the atmospheric temperature. Congeners with higher vapor pressures are found to a greater extent in the vapor phase. A comprehensive evaluation of the partitioning of dioxin -like compounds between vapor and particle phases was performed in Volume III of this three -volume document. Ambient air monitoring studies that examined the partitioning of dioxin -like compounds between vapor and particle phases were summarized in the Volume III evaluation: A theoretical approach developed by Bidleman (1988) was also discussed, and this approach was used to model the vapor/particle (V/P) partitioning for purposes of evaluating the impact of stack emissions. Table 2-4 summarizes the V/P partitioning reported in several ambient air monitoring studies and also the V/P partitioning estimated by the Bidleman (1988) model. The results are presented as V/P ratios (i.e., the ratio of the concentration of a compound in the vapor phase to the concentration of that compound in the particulate phase on a volume -to -volume basis). From the review in Volume III, the following conclusions were made: Ambient air sampling methods do give an approximate indication of the V/P ratio that seems to be responsive to changes in temperature and to the degree of chlorination of the CDDs/CDFs. This is in accordance with what would be expected from their individual vapor pressures. The methods present a realistic picture of partitioning under variable ambient conditions. However, the method has certain limitations that currently prevent deriving a true measurement of V/P partitioning in the ambient air. First, the glass fiber filter is designed to capture and retain particulate matter greater than or equal to 0.1 gin diameter. Particles less than this diameter may pass through the filter and be retained in the polyurethane foam vapor trap downstream. If this is the case, the amount of CDDs/CDFs observed to be particle -bound would be underestimated, and the amount observed to be in vapor phase would be overestimated. Second, the relatively high volume of sampled air passing through the system (200 to 400 m3 of air per 24 hours) may redistribute the more volatile congeners from the filter to the adsorbent trap by a process known as blow -off. Again, this would lead to an overestimate of the fraction in the vapor phase. The theoretical construct relies on current adsorption theory, considers the molecular weight and the degree of halogenation of the congeners, uses the boiling points and vapor pressures of the congeners, and uses the availability of surface area on atmospheric particles for adsorption that correspond to a variety of ambient air shed classifications having variable particulate matter densities. Four air shed classifications are described in Bidleman (1988): "clean continental", "background", "background plus local sources", and "urban". The classification used in Volume III for evaluating impacts in a rural environment is "background plus local sources". It is noted from Table 2-4 that the V/P ratios determined theoretically indicate less compound in the vapor phase (or equivalently, more in the particle phase) than is reported in the monitoring studies. This is consistent with the discussion above suggesting that the ambient v air instrumentration could overestimate the vapor fraction because of instrumentation design and performance. Towara et al. (1993) studied the particle size distribution of atmospheric particle -bound CDD/CDFs. Three 48-hour samples were collected in a rural area of Germany during the summer of 1992. Particles with aerodynamic diameters of less than 1.35 µm (i.e., particles that have relatively long residence times in the atmosphere) accounted for 65, 84, and 82 percent of the total particle mass in the three samples. However, these small particles accounted for 91, 90, and 85 percent of the total mass of CDD/CDFs found in all particle sizes combined. CDDs and CDFs are removed physically from the atmosphere by wet deposition (i.e., scavenged by precipitation), particle dry deposition (i.e., gravitational settling of particles) and gas -phase dry deposition (i.e., sorption of CDD/CDFs in the vapor phase onto plant surfaces) (Rippen and Wesp, 1993; Welsch-Pausch et al., 1993). Precipitation can be very effective in removing CDDs and CDFs from the atmosphere. Listed in Table 2-5 are the average precipitation scavenging ratios for congener groups reported by Hites and Harless (199 1) and Koester and Hites (1992a) for Bloomington, Indiana, and Indianapolis, Indiana, respectively. The scavenging ratio is the ratio of the concentration of a chemical in precipitation (rain in these studies) to the concentration in the atmosphere and is a measure of the effectiveness of rain in removing the chemical. Also listed in Table 2-5 are the percentages of congener groups scavenged as particles in rain rather than as dissolved solutes in rain_. Total rain scavenging ratios ranged from 10,000 to 150,000; hepta- and octa- CDDs (i.e., the congeners most strongly associated with particulates) were scavenged most efficiently. As part of their studies, Hites and Harless (1991) and Koester and Hites (1992x) also measured dry deposition of CDDs and CDFs and calculated wet and dry deposition fluxes to determine which process dominated CDD/CDF deposition. The calculated wet deposition flux for both cities was similar; 220 ng/m2-yr for Indianapolis and 210 ng/m2yr for Bloomington as might be expected based on similar rainfall patterns. However, the dry deposition fluxes differed by a factor of two between the cities (160 ng/m2-yr for Bloomington and 320 ng/m2-yr for Indianapolis). Wet deposition was calculated to be the dominant process for Bloomington; whereas, dry deposition was calculated to be the dominant process for Indianapolis. The difference was attributed to the higher total suspended particulate matter in Indianapolis air. 2.6.1.2.2. Transport Mechanisms in Soil Upon deposition of CDDs/CDFs onto soil or plant surfaces, there can be an initial loss due to photodegradation and/or volatilization. The extent of 6) initial loss due to volatilization and/or photodegradation is uncertain and may be controlled by climatic factors, soil characteristics, and the concentration and physical form of the deposited CDDs/CDFs (i.e., particulate -bound, dissolved in solvent, etc.) (Freeman and Schroy, 1989; Paustenbach et al., 1992). For example, observations from the Seveso incident indicated that when 2,3,7,8-TCDD was deposited on the soil surface, the levels in the surface soil decreased substantially in the first 6 months (DiDomenico et al., 1982). Similarly, Nash and Beall (1980) reported that 12 percent of the 2,3,7,8-TCDD applied to bluegrass turf as a component (7.5 ppm concentration) of an emulsifiable Silvex concentrate volatilized over a period of rine months. Because of their very low water solubilities and vapor pressures, CDDs/CDFs below the soil surface (i.e., below the top few millimeters) are strongly adsorbed and show little upward or downward vertical migration, particularly in soils with a high organic carbon content (Yanders et al., 1989). Freeman et al. (1987) found no statistically meaningful changes in the concentration profile of 1,2,7,8 -TCDD in the top 1 cm of Time Beach Soil over a 16 -month period, with the exception of the top 3mm of soil exposed to water and sunlight in which 50 percent reduction in 2,3,7,8-TCDD concentration was observed. In addition, the more chlorinated congeners do not show any significant degree of degradation below the soil surface. Although for several years it was believed that near -surface (i.e., the top lem) CDDs/CDFs could volatilize slowly to the surface (Freeman and Schroy, 1985), recent research has indicated that CDDs/CDFs, particularly the tetra and higher chlorinated congeners, show little or no movement upward or downward in the subsurface unless a carrier such as waste oil or diesel fuel is present to act as a solvent. For example, Palausky et al. (1986) injected 2,3,7,8-TCDD dissolved in various organic solvents into soil columns to determine the extent of vapor phase diffusion; little movement due to volatilization was observed unless the soil was incubated at 40°C. Paustenbach et al. (1992) reviewed many major published studies on dioxin persistence in soil and concluded that 2,3,7,8-TCDD probably has a half-life of 25 to 100 years in subsurface soil and 9 to 15 years at the soil surface (i.e., the top 0.1 cm). Several major studies reviewed by Paustenbach et al. (1992) and additional recent studies are summarized below. Some of these recent studies have concluded that the binding of dioxin -like compounds to soil approaches irreversibility over time due to the encapsulation of the compounds in soil organic and mineral matter (Puri et al., 1989; Puri et al., 1992). Orazio et al. (1992) studied the persistence of di- to octa-chlorinated CDDs and CDFs in sandy loam soil held in laboratory columns under water -saturated soil conditions for a period of 15 months. Measurable upward movement was reported only for the dichlorofurans and dioxins. Downward movement was only noticeable for the dichloro- and trichloro-congeners. The 0 mobility of the CDDs and CDFs was not significantly affected by co -contaminants (i.e., " pentachlorophenol and creosote components) present at concentrations as high as 6,000 mg/kg. As much as 35 percent loss of the di- and trichloro-congeners due to degradation was observed; no significant degradation of the tetra- through octa-chlorinated congeners was reported (Orazio et al., 1992). Hagenmaier et al. (1992) collected soil samples aroundtwo industrial plants in Germany in 1981, 1987, and 1989 at the same site and from the same depth, using the same sampling method. There was no indication (within the limits of analytical accuracy (+/- 20 percent)) of appreciable loss of CDDs and CDFs by vertical migration, volatilization, or degradation over the 8 -year period. Also there were no significant changes in the congener distribution pattern (i.e., tetra- through octa-) over this time period. Yanders et al. (1989) reported that 12 years after oil containing 2,3,7,8-TCDD was sprayed on unpaved roads at Times Beach, Missouri, no dioxin was discovered deeper than 20 cm. However, .these roads were paved about 1 year after the spraying episode, thus preventing volatilization to the atmosphere. Yanders et al. (1989) excavated this soil and placed the soil in bins located outdoors, subject to the natural conditions of sunlight and precipitation. They Av-"- / reported no appreciable loss nor vertical movement of 2,3,7,8-TCDD from the soil_, even in the ' uppermost sections, during a 4 -year study period. Puri et al. (1992) reported no migration or loss of 1,2,3,4 -TCDD, 1,2,3,7,8-PeCDD, OCDD, and OCDF from samples of this soil which were examined for 2 years in controlled laboratory column experiments. Hallett and Kornelson (1992) reported finding 2,3,7,8-TCDD at levels as high as 20 pg/g in the upper 2 inches of soil obtained from areas of cleared forest in New Brunswick, Canada, �.---� where the pesticides 2,4-D and 2,4,5-T had been applied in one or more applications 24 to 33 years earlier. Pereira et al. (1986) reported contamination by CDDs of the sand and gravel aquifer underlying unlined surface impoundments at a wood -treatment facility that had utilized creosote and pentachlorophenol. CDDs migrated both vertically and horizontally in the subsurface. Puri et al. (1992), using soil column experiments in the laboratory, demonstrated that pentachlorophenol and naphthalene and methylnaphthalene (components of creosote) readily transported CDDs/CDFs through soil. Puri et al. (1989) and Kapila et al. (1989) demonstrated that application of waste oil and anionic surfactant solutions to field and laboratory columns of Times Beach soil can move 2,3,7,8-TCDD through soil. Walters and Guiseppe-Elie (1992) showed that methanol/water solutions (lg/L or higher) substantially increase the mobility of 2,3,7,8-TCDD in soils. ; Although few studies have evaluated quantitatively the transport of soil -bound CDDs/CDFs, the very low water solubilities and high K,.s of these chemicals indicate that erosion of soil to water bodies appears to be the dominant surface transport mechanism for CDDs/CDFs sorbed to soil (Paustenbach et al., 1992). 2.6.1.2.3. Transport Mechanisms in Water. Most CDDs/CDFs entering the aquatic environment are associated with particulate matter (e.g., dry deposition of atmospheric particles and eroded soil) and are likely to remain sorbed to the particulate matter once in the aquatic environment. Recent studies have demonstrated that dissolved CDDs/CDFs entering the aquatic environment will, like other lipophilic, low water solubility organic compounds, partition to suspended solids or dissolved organic matter such as humic substances. Muir et al. (1992) and Servos et al. (1992) recently reported that 48 hours after the addition of 2,3,7,8-TCDF, 1,3,6,8 -TCDD, and OCDD in a sediment slurry to natural lake water/sediment limnocorrals, between 70 and 90 percent had partitioned to suspended particulates. The proportion freely dissolved in water ranged from <2 percent for 2,3,7,8-TCDF and OCDD to 10 to 15 percent for 1,3,6,8 -TCDD. The remainder was associated with dissolved organic substances. Broman et al. (1992) analyzed water collected from nine sampling points in the Baltic Sea selected to be representative of background levels. The concentration of particle -associated (>0.45mm) total CDDs/CDFs varied between 0.170 and 0.390 pg/L with an average concentration of 0.230 pg/L (or 66 percent of total CDDs/CDFs). The total CDD/CDF concentration of the "apparently" dissolved fraction varied between 0.036 and 0.260 pg/L with an average concentration of 0.120 pg/L (or 34 percent of the total). Subsequent calculations estimated that, on average, only 0.070 pg/L of the "apparently" dissolved CDDs/CDFs were truly dissolved. The dominant transport mechanism for removal of CDDs/CDFs from the water column is believed to be sedimentation and ultimately burial in sediments; sediment resuspension and desorption of CDDs/CDFs will vary on a site -by -site basis. Servos et al. (1992) reported that the 1,3,6,8 -TCDD and OCDD added as a sediment slurry to lake limnocorrals rapidly partitioned/settled to surficial sediments where they persisted over the 2 years of the study. The half-lives of 1,3,6,8 -TCDD and OCDD in the water column were reported as 2.6 and 4.0 days, respectively. Based on sediment trap and mixed surface layer studies of the Baltic Sea, Broman et al. (1992) report that the mass of CDDs/CDFs in the mixed surface layer at any moment represents about 1 percent of the total flux of CDDs/CDFs to the sediment annually; this implies (07 little recirculation of these compounds within the water column of the Baltic Sea. Broman et al. (1992) also reported that the concentration of CRDs/CDFs in settling solids (i.e., sediment trap collected material) is approximately one order of magnitude greater than the concentration in suspended particulates. They attributed this elevated concentration to the capacity of settling solids to scavenge the dissolved fraction as the solids settle through the water column. Similar findings have been reported elsewhere (e.g., Baker et al., 1991) for PCBs and PAHs in the Great Lakes. Even though they possess very low vapor pressures, CDDs/CDFs can volatilize from water. However, volatilization is not expected to be a significant loss mechanism for the tetra - and higher chlorinated CDDs/CDFs from the water column under most non -spill scenarios. Podoll et al. (1985) calculated volatilization half-lives of 15 days and 32 days for 2,3,7,8-TCDD in rivers and ponds/lakes, respectively. Broman et al. (1992) used measured concentrations of CDDs/CDFs in ambient air (gaseous phase) and in Baltic Sea water (truly dissolved concentrations) to calculate the fugacity gradient over the air -water interface. The fugacity ratios obtained indicated a net transport from air to water (ratios between 0.4 and 0.004). Fish and invertebrates bioaccumulate CDDs/CDFs, although the benthic and pelagic pathways by which the accumulation occurs are not well understood. Organisms have been shown to accumulate CDDs/CDFs when exposed to contaminated sediments and also to bioconcentrate CDDs/CDFs dissolved in water. However, since most of the CDDs/CDFs in the water column and sediment are associated with particulate matter and dissolved organic matter, the accumulation observed in the environment may be primarily food chain -based starting with uptake by benthic organisms (e.g., mussels, chironomids) directly from sediment pore waters and/or by ingestion or filtering of contaminated particles. Those organisms consuming benthic organisms (e.g., crayfish, suckers) would then pass the contaminants up the food chain (Muir et al., 1992). -fie' X P�} I I ea N �mCa N James Connollly James Connollly 3 Riverside Drive 3 Riverside Drive Andover, MA 01810 Andover, MA 01810 1 Comm. Of Mass 100 Cambridge St. Comm. Of Mass 100 Cambridge St. i Boston, MA 02202 Boston, MA 02202 . Lucent Technology i Lucent Technology P.O. Box 1259 P.O. Box 1259 j Morristown, N.J. 07962 Morristown, N.J. 07962 I APE Industries 1 APE Industries I; 1 125 Phillips Ave. 1 125 Phillips Ave. S. Hackensac, N.J. 07006 S_Hackensac, N.J. 07006 City of Lawrence, Airport Commission I City of Lawrence, Airport Commission City Hall, Common Street 1 i City Hall, Common Street Lawrence, MA 01840 1 ;Lawrence, MA 01840 Clark Road Trust, J. Levis, Jr. I Clark Road Trust, J. Levis, Jr. I� i 188 Chestnut St. 188 Chestnut St. North Andover, MA 01845 North Andover, MA 01845 I I. I I I l I 1i I' I i Ali, I II I nT I James Connollly James Connollly 3 Riverside Drive 3 Riverside Drive Andover, MA 01810 Andover, MA 01810 I Comm. Of Mass Comm. Of Mass I, 100 Cambridge St. 100 Cambridge St. Boston, MA 02202 Boston, MA 02202 I Lucent Technology Lucent Technology l II P.O. Box 1259 P.O. Box 1259 Morristown, N.J. 07962 Morristown, I' N.J. 07962 APE Industries APE Industries II 125 Phillips Ave. 125 Phillips Ave. I. 1 S. Hackensac, N.J. 07006 S. Hackensac, N.J. 07006 \ City of Lawrence, Airport Commission City of Lawrence, Airport Commission li 1 City Hall, Common Street City Hall, Common Street Lawrence, MA 01840 1 Lawrence, MA 01840 1 }- —� j - - - -- I -� Clark Road Trust, J. Levis, Jr. Clark Road Trust, J. Levis, Jr. i 188 Chestnut St. 188 Chestnut St. I North Andover, MA 01845 North Andover, MA 01845 l I I I�- I, 'I � I 'I I� I a v � - I I 1 li I! ' Comm. Of Mass II ' 100 Cambridge St'. JBoston, MA 02202 Lucent Technology I' P.O. Box 1259 Morristown, N.J. 07962 'I APE Industries II 125 Phillips Ave. S. Hackensac, N.J. 07006 { I City of Lawrence, Airport Commission City Hall, Common Street Lawrence, MA 01840 � �II Clark Road Trust, J. Levis, Jr. 188 Chestnut St. North Andover, MA 01845 n7i Ce AIVlel(L( 0 (,ti �1 3.06 % -441 4 TOWN OF NORTH ANDOVER L' -- OF PARTIES OF INTEREST: PAGE OF I SUBJECT PROPERTY MAP PAR # NAME ADDRESS -514 %BUTTERS: 34 -34 >11z,e I - 72- 617 SG 79 L m e4o CERT DATE labe14.doc James Connolly EMCON 3 Riverside Dr. Andover, MA 01810 James Connolly EMCON 3 Riverside Dr. Andover, MA 01810 James Connolly EMCON 3 Riverside Dr. Andover, MA 01810 UOP 171agel Inhald rine I I i James Connolly EMCON 3 Riverside Dr. Andover, MA 01810 James Connolly 'I EMCON IIS 3 Riverside Dr. Andover, MA 01810 III Ij I �I, I �I' I I _ I SII it I .I li I I' I. I \ I' 'II 1 I' I, I � I M S Uwcon —MAV 9 n Z3 Riverside Dr. • Andover, MA 01810-1121 • (978)682-1980 • Fax (978)97 206 TRANSMITTAL BOAR® F APPEAL: Project/Task No.: 86458-001.000 TO: North Andover Zoninsz Board of Appeals DATE: May 20, 1998 c/o Mary Inollito 120 Main Street North Andover, MA 01845 RE: Massachusetts REFUSETECH, Inc., 285 Holt Road, Air Emissions Control Project I WE ARE SENDING: QUANTITY: 'I ESCRIPTION 10 Revised Drawing No. 86458-001-004 Rev. 2 "Air Emissions Control System General Arrg't Elev." For Your: X USE APPROVAL REVIEW/COMMENTS INFORMATION OTHER COMMENTS: CC Sent By: REGULAR MAIL FEDERALEXPRESS UPS X COURIER OTHER BY: James J. Connolly ,* enc-andvrl j:\86458001.000\061ocal\transmI2.doc-96\jrichard:I Print 3 copies: ORIGINAL - Recipient COPY - EMCON File COPY - Originator t 6174431360 ENVIRONMENTALFUTURES A �COPPOR4 TION r:0roor4f» Hood laar►ero ai}rod C r%le 84x ford. MA 01 730-2140 ;617) 21s -64W PAX '6; 7) 27'5-a612 David a. sotmer pr"dent W. Steven J. Comer, Esq. Goodwin, Procter 3t Hoar LLP COuT13140 7 at Law far MRI Exchange Place Boston, Massachusetts 02109-2881 Mr. Michael T. Gass, Esq. Palmer 3t "Se LLP Counselors at Law for NESWC One Beacon Strad Boston, Massachusetts 02108 July 2, 1998 DBS9802S Re: Massachusetts Refusetccl% Inc. v. Palmer & Dodge LLP Civil Action No: 27:6071-C Dear Mr. Comen and Mr. Gass: 638 P02 JUL 14 '98 11:52 XTP,a Ca ry As the Independent Third Party (ITP), jointly selected by both Massachusetts RefUsetech, Inc, and the Northeast Solid Waste Committee C NESWC") to resolve matters regarding the above referenced dispute, the UP hereby orders that MR1 be paid $35.500,000 by NESWC far the scope oi'work as more fully described below. This is a lump sum fixed price, and.inciudes performance guarantea. The plant will be required to operate in compliance with applicable laws; regulations and standards in effect as of July 1, 1998. The schedule of payments will be developed by the TTP in Phase IV. 1. This amount is deemed by the ITP as the fair and reasonable price to be paid for permitting. design, insurance and bonding, construction. startup and acceptance testing for the air pollution control retrofit, but it does not include contingencies gar aatmordinary delays or events outside MRI's control. NESWC must pity all financing coats and sides tax. 2. MRI submitted a scope of work an October 10, 1997, which defined its proposed retrofit to comply with applicable changes of law, particularly the Clean Air Act Amendments. The price far accomplishing this proposed scope of work was estimated at approximately $43 million. 3_ On November 13, 1997, NESWC objected to the prict, the scope of work, and the extent of environmental enhancements proposed by MRI. Subsequent to that communication, Roti and its engineers, Camp Dresser and McKee (CDM) and Henningson Durham end Richardson (HDR), proposed that the work could be accomplished for armour:ts between $32 AacraED Pia 4 6174431360 ENVIRONMENTALFUTURES 638 F03 JUL 14 '98 11:52 million and $17 million. (These estimateY were based upon a revised and/or reduced scope of work.) •f In the ITP's opinion, the counter -proposals by NESWC were in compliance with applicable laws. but did not fully anticipate actual site conditions, or alternatively provided less environmental protection to the cornmurtities than the NGU proposal. Y 5. In the ITP's opinion, the cost estimates provided by NUU were reasonable for the work defined In the original MRI scope of work document, but some of the work was unnecessary and/or did not take fUlI advantage of the existing infrastructure at the site. 6. The ITP worked for several months with both MFU and NESWC, and their subcontractors and engineers, to redefine the scope of work in a manner that would provide the greatest environmental protection to the public, but at the lowest cost to the communities. 7. The lump sum fixed price set by the FTP does not include any amount for MRI profit on the work to be performed. 8. It is the ITP's understanding from joint meetings with both MRI and NESWC that the scope of work and price as defined by the ITP is acceptable. Both Parties unanimously agreed that the work should proceed now to upgrade the existing system with the improved environmental controls. 'aiming will be critical in order to complete the work by 19 December 2000, and thus minimize community costs. 9. The proposed scope of work produces it retrofitted resource recovery project that will make the North Andover Project capable of performing to tha highest environmental standards. No expense was spared in the effort to reduce emissions. When completed the North Andover facility emissions should be equal to or below those of any resource recovery Acility. . anywhere in tha world. 10. The decision to proceed with sctubbcrs and beghouses added substantially to the cost, but will reduce emissions to levels well below the most stringent federal and state standards and/or guidelines — some of which are not even yet in effect. 11. Joint meetings held between the ITP and the U.S. Environmental Protection Agency and the Massachusetts Department of Environmental Protection have verbally endorsed the final scope of worst as being fully consistent with applicable regulations and protective of health and tho environment. A written endorsement is expected in the near fiutum. 12. In the event the state enacts additional recycling requirements &3 part of its implementation standards of the Clean Air Act, it is encouraged to do so, Such added recycling has not beers included In the lump sum price because the ITP could not reasonably anticipate the required changes at the time of award. 13. A scope definition was provided to the Parties by the ITP. ITP documentation was discussed fully (until there was no further disagreement or misunderstanding) on June 30, 1998. The conclusions were finalized by the ITP on July 1, 1998, and etre memorialized in the i1nal Phase I and Phase 11 Decisions - two documents 14 and 33 pages in-iengtis, respectively. 14. The ITP believes that the combination of the Phase I, Phase U. and Phase III documents provides adequate definition of scope, price, performance and schedule. This documentation provides protection to the communities that the work will be completed ss defined. The RECYCIRO PAOSFi I . t i ' i , , - ..e. 6174431360 ENVIRONMENTALFUTURES 638 PO4 JUL 14 '98 11:53 communities have assurances that the work when completed, will perforin in accordance with applicable laws and regulations. Protection is also provided to NMI that if the communities change the scope of work cause delays, or change their interpretation of laws and regulations` `iRl will be entitled to additional compensation. Since the Erna! delivery date cannot be adjusted outward. MR1 will also receive added compensation if it has to accelerate its work. 15- It's asswnad in the $35.5 million price that the work has been defined as of today s date with respect to applicable taws, ordinances, and standards in effect, or as they could be rmonably be anticipated by the ITP, on July 1, 1998, and that it will not change, 16. It is sssumedAr pricing purpajrs that local permits can and will be issued to MRI for the retrofit on August 1, 1998 and that the Massachusetts . Implementation Plan, when promulgated, will be substantially consistent in all material respects with documents issued for tical comment. 17. Mme is of the essence. If local permit requirements are not fully defined in the next 30 days, it is tho M's opinion that MRI will incur coat beyond the lump sum price. The IM anticipates that there will be some delay in approval of permits by local boards in the Town of North Andover, but cannot estimzta the actual time required for necetaaty approvals. Rather tWW estimating the time of delay, and adding such delay costs now to the lump SUM price. a variable adjustment has been made to the price. For the month of August, this adjustment shall be set at $1000 per day. if for some reason local permits are delayed beyond August 31, 1998, the daily amount will be adjusted upward by the ITP, best it Is hoped and expected that this will not be necessary. 18. The $35.5 million price set forth excludes the costs of financing, extraordinary permitti costs, and delay costs. It also excludes Changes to the agreed upon final scopes of erm ng reasons outside MRI's control. These issues; among others, will be addressed In the Phase IV decision. The ITP reserves the right to make adjustments to this phase Ili decision in Phase TV based upon the discovery of new Information. RespectfWly submitted, David B. Spencer, Sc. D. President cc: M. Hem MRI -S. Rothstein, NESWC RQCYCLlO PAPLCp .. 6174431360 ENVIRONMENTRLFUTURES ISAW A CPPOR4 TION Corporal* Freadgiaarerl .►dyed C,rizie Herslotl. SIA 01 730-234 ;617y 215.44M PAX ;617) V"b12 Davit S. Soencer protideni W. Stevan J. Comen, Esq. Goodwin, Procter dt Hoar LLP Cour13910r3 at Law fbr MRI Exchange Place Boston, Massachusetts 02109-2881 Mr. Nfiichael T. Gass, Esq. Palmer & Dodge LLP Counselors at Law for NESWC One Beacon Street Boston, Massachusetts 02188 July 2, 1948 DB598028 Re: Massachusetts Refuseteck Inc. v. Palmer do dodge LLP Civil -Action No: 97:6071•C Dear Mr. Comen and Mr. Gass: 638 P02 JUL 14 '98 11:52 YI1P/9 C°/l As the Independent Third Party (ITP , jointly selected by both Masaachusetis RefUsetech, Inc. ("Iv ') and the Northeast Solid Waste Committee ("NESWC") to resolve matters regarding the abovc referenced dispute, the ITP hereby orders that MR1 be paid $35,500.000 by NESWC for the scope of work as more fatly descn'bed below. This is a lump sum fixed price, and includes performance guarantees. The plant will be requircd to operate in compliance with applicable laws, regulations and standards in effect as of July 1, 1998. The schedule of payments will be developed by the ITP in Phase IV. 1. This amount is deemed by the ITP as the fair and reasonable price to be paid for perniitting. design, insurance and bonding. construction. startup and acceptance testing for the air pollution control retrofit, but it does not Include contingencies far extraordinary delays or events outside MRI's control. NESWC must pay all financing Costs and sales tax. 2. MR 1 submitted a scope of work on October 10, 1997, which defined its proposed retrofit to comply with applicable changes of law, particularly the Clean Air Act Amendments. The price for accomplishing this proposed scope of work was estimated at approximately $43 million. 3. On November 13, 1997, NESWC objected to the price, the scope of work, and the extent of environmental enhancements proposed by MRI. Subsequent to that communication. 1� and its engineers, Camp Dresser and McKee (CDM) and Henningsen Durham and Richardson (HDR), proposed that the work could be accomplished for amounts between $32 AICyCLED PAPEA 6174431360 ENVIRONNENTALFUTURES 638 P03 JUL 14 '98 11:52 million and S3' million. (These estimateY were baaed upon a revised and/or reduced scope of work.) 4 In the ITP's opinion, the counter -proposals by NESWC were in compliance with applicable i4W3, but did not fully anticipate actual site conditions, or alternatively provided Iess environmental protection to the communities than the Ivy proposal. v 5. In the ITP's opinion, the cost estimates provided by Ivuu were reasonable for the work defined In the original NUU scope of work document, but some of the work was unnecessary and/or did not take full advantage of the existing infrastructure at the site. 6. The TTP worked for several months with both III and NESWC, and their subcontractors and engineers, to redefine the scope of work in a manlier that would provide the greatest environmental protection to the public, but at the lowest cost to the communities. 7. The lump sum fixed price set by the UP does not include any amount for MRI profit on the work to be performed. S. It is the ITP's understanding from joint meetings with both MRS and NESWC that the scope of work and price as de#lned by the IMP is acceptable. Both Parties unanimously agreed that the work should proceed now to upgrade the existing system with the improved environmental controls. Timing will be critical in order to complete the work by 19 December 2000, and thus minimize community costs. 9. The proposed scope of work produces a retrofitted resource recovery project that will make the North Andover Project capable otperforming to the highest environmental standards. No expense was spared in the et%rt to reduce emissions. When completed the North Andover facility emissions should be equal to or below those of any resource recovery fhcility. . anywhere in the world. 10. The decision to proceed with scrubbers and bagiicuses added substantially to the cost, but will reduce emissions to levels well below the most stringent federal and state standards an&or guidelines — some of which are not even yet in effect. 11- Joint meetings held between the YTP and the U.S. Environmental Protection Agency and the Massachusetts Department of Environmental protection have verbally endorsed the final scope of work as being fully oonsistent with applicable regulations and protective of health and the cn*onment. A written endorsement Js expected in the near feature. 12. In the event the state enacts additional recycling requirements as part of its implementation standards of the Clear Air Act, it is encouraged to do so, Such added recycling has not been included In the lump sum price because the i I'P could not reasonably anticipate the required changes at the time of award. I3. A scope definition was provided to the Patties by the M. ITP documentation was discussed fully (until there was no further disagreement or misunderstanding) on June 30, 1998. The conclusions were finalized by the ITP on July 1, 1998, and are memorialized in the final Phase I and Phase 11 Decisions — two documents 14 and 33 pages in—iengut, respectively. 14. The ITP believes that the combination of the Phase I, Phase U, and Phase III documents provides adequate definition of scope, price. performance and schedule. This documentation provides protections to the communities that the work will be completed as defined. The RECYCLSO PSA 4„ 6174431360 ENVIRONMENTALFUTURES 638 PO4 JUL 14 '98 11:53 communities have assurances that the work when completed, will perforce in accordance with applicable laws and regulations.Protection is also provided to 1V that if the communities change the scope of work, cause delays, or change their interpretation of laws and regulations, %,JRI will be entitled to additional compensation. Sincc the final delivery date cannot be adjusted outward. MRI will also receive added compensation if it has to accelerate its work. 15' Itis assumed in the $35.5 million price that the work has been defined as of today's data with respect to applicable laws, ordinances, and standards in effect, or as they could be reasonably be anticipated by the ITP, on July t, 19982 and that it will not change. ItS. It is Assumed Ar pricin o retrofit og purposes that local permits can and will be issued to MRI for the n August I, 1998 and that the Massachusetts Implementation Plan, when far final comment. promulgated, will be substantially consistent in all material respects with documents issued 17. Time is of the essence. If localpermit requirements are not fully defined in the next 30 Sys, it is the M's opinion that MRI will incur cost beyond the lump sum pricy The I'I'p anticipates that then Wil I be some delay in approval of permits by Iocal boards in the Town of Noah Andover, but cannot estitmue the actual time required for ascemary approvals. Rather thou 03tlmating the time of delay, and adding such delay costs now to the lump luta Price, a variable adjustment has been made to the price. For the month cf August, this adjustment shalt be set at $1000 per day. If for some reason local permits are delayed beyond August 3I. 1998, the daily amount will be adjusted upward by the ITP, but it is hoped and expected that thin will not be necessary. 18. The 935.5 million price set forth excludes the costs of financing. extraordinary pexmitti C=4 and delay coats. It also excludes changes to the agreed upon final scoga of work for moons outside MRd's control. Thesc issues, among othrzs, will be addressed in the Phase IV decision. The ITP reserves the right to make adjustments to this Phase M decision in Phase IV based upon the discovery of new information. Respectfftlly submitted, David B. Spencer, Sc. D. President cc: M. Hepp, i1dR.i S. Rothstein, NESWC ACCYCLEO PAPCp