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2002-06-12 CITY OF BEVERLY Public Meeting Minutes BOARD: Conservation Commission Special Meeting SUBCOMMITTEE: DATE: June 12, 2002 BOARD MEMBERS PRESENT: Chairman David Lang, Richard Benevento, Anthony Paluzzi, Jon Mazuy, Dr. Mayo Johnson, Jay Donnelly, Linda Goodenough BOARD MEMBERS ABSENT: OTHERS PRESENT: Debra Hurlburt, Planning Director RECORDER: Jeannine Dion (tape) Chairman Lang calls the meeting to order at 7:00 p.m. Set Public Site Visits Hurlburt states that at the last meeting a public site visit was not scheduled for 43 Paine Avenue or the L.P. Henderson Road site. 43 Paine Avenue A site visit is scheduled to take place at 43 Paine Avenue on Saturday, June 15, 2002 at 9:00 a.m. L.P. Henderson Road A site visit is scheduled to take place at L.P. Henderson Road on Saturday, June 15, 2002 at 8:00 a.m. Land Use and Management Plan – Hill Property Hurlburt states that the city has taken the Hill property (near Sally Milligan Park). It is being paid for partly by grant. Part of the grant requirement is that the city put together a Land Use and Management Plan, as was done similarly when the city took a grant for the Santin property, on the other side of Sally Milligan Park. Hurlburt states she needs the Conservation Commission’s authorization for Hurlburt to finalize the report. Benevento moves to authorize Debbie Hurlburt amend the Land Use and Management Plan as necessary and submit it to the appropriate agencies, seconded by Paluzzi. All members in favor. Motion carries. Conservation Commission Meeting Minutes June 12, 2002 Page 2 Abbreviated Notice of Resource Area Delineation – Bartlett Estate Lang states there is an Abbreviated Notice of Resource Area Delineation (ANRAD) on the former Bartlett Estate property. Lang states they wanted to do some emergency removal of contamination and the Commission gave approval to do so. They would like to hire Griffin Engineering and authorize the Commission to hire its own independent consultant to review the ANRAD and give an opinion on if the general delineation is correct and work with their consultant. Benevento asks if the Commission approves the plan for the applicant to do work, doesn’t the delineation hold for three years? Lang states part of the issue is that they filled in a large area of wetland and they pulled all the debris out of there. Benevento states it is very important that the applicant get a Certificate of Compliance to say that the work is done. Hurlburt states she will check to see if a Certificate of Compliance has been issued. Benevento recommends using Ann Martin from LEC Environmental, Kurt Young from Wetlands Preservation, and Mary Rimmer from Rimmer Environmental. Benevento moves to authorize the Planning Director to contact Kurt Young, Mary Rimmer and/or Gulf of Maine regarding their availability to review the ANRAD and work with applicant’s engineer regarding the wetland delineation, seconded by Paluzzi. All members in favor. Motion carries. Discussion – Algonquin Gas Transmission Company Lang states he continues to speak with different regulatory agencies. He refers to another plan from the DEP on exactly how the dredging would be handled and some of the concerns that they had about sediments, removal of sediments and the required monitoring. Jon Bonsall, Attorney for Algonquin states that they supplied the DEP with information on what Algonquin is going to do. DEP discussed alternatives. Lang states the DEP sent a letter and criticized Algonquin on the off-site disposal costs. They thought the costs were high. Lang asks what the revised cost is. Bonsall responds that he does not have the figure on the top of his head but it is a high figure (several million dollars). The figure is based on the amount, weight, where it has to go and landfill capability, etc. The major issue is the amount of material. Lang asks if the landfills are in Massachusetts. Bonsall responds that most are in Western Massachusetts and one or two are in New Hampshire. Conservation Commission Meeting Minutes June 12, 2002 Page 3 Benevento states that he was interested in one or two alternatives. Alternative 1: move the pipeline out of the contaminated area. Alternative two: if the applicant is going to continue with the pipeline in the contaminated area, whatever contamination you come across, you remove it and legally dispose of it. He asks if that is still an option because he is not in favor of disturbing the ocean bottom and spreading contamination over areas that are presently not contaminated. Lang states one of the things the Environmental Attorney suggested is to follow with DEP and look at the latest plan and put faith in the DEP. Benevento asks if that ensures that we are not going to spread contaminated material all over the harbor. Lang responds that it is the Department of Environmental Protection and they are supposed to look out for the interest of the environment. Whether or not that is enough for the Commission, he is not sure. He thinks the DEP will probably support Algonquin’s latest proposal. Benevento asks what the cost of removal of contaminated material is projected to be. Bonsall responds $12 million. Mazuy states that it is the Conservation Commission’s responsibility for protecting the harbor and he does not want to be one to be called upon later to have voted against the fullest protection we can come up with. The Commission can be overruled by DEP. Lang states that the point is there is a belief that what is proposed is safe and it is a temporary impact at best. Benevento states he asked a question about how far the sediments can spread and was told that they could extend several hundred feet from where they are working. He asks if that means it is not a health risk. Lang states there is a paper from Long, McDonald, Smith and Caulder dated 1995 called “The Incidence of Adverse Biological Affects in Range of Chemical Concentrations in Marinas, Estuary Environments from Environment Management.” In that study they give ranges of impacts and Lang expresses concern that this will have the chance of moving 2,000 parts per million laterally or somewhere else and cause damage. Benevento asks if uncontaminated areas are contaminated by this operation, is the bar being raised for other people to come before the Commission? How does the Commission tell someone else, who wants to do a similar project, and is not a big utility company, that they can’t do it? Lang states there is a rumor that contaminated chromium from the South Sewer District went to Beverly Harbor many years ago. Conservation Commission Meeting Minutes June 12, 2002 Page 4 The members review the draft Order of Conditions. Hurlburt reads the following conditions: 21. Hurlburt reads #21 into the record. Hurlburt states it is an issue of monitoring (How do you monitor?). She asks if this is really an appropriate condition. There is discussion regarding retaining the consultant to represent the Conservation Commission. Hurlburt states that because the work is so specific and technological, there is only a certain amount of people that would be allowed on the barge to do the work under OSHA standards. The Commission will not be able to have anyone right there to monitor. Mazuy states the last part of the condition referencing “public interest” is about as ill defined as you can get. He recommends removing that portion of the condition and the members concur. 23. These Orders of Condition are based on the presumption of ownership and legal usage of the project site. 26. Hurlburt reads #26 (regarding As-built drawings) into the record. th Hurlburt states that since September 11 it may be impossible for Algonquin to identify that publicly. She recommends “however the Federal Policy or Regulations do not prevent applicant …” Benevento asks if the pipeline is mapped on plans in several communities. Mazuy recommends adding, “Providing it is not a violation of Federal Law or policy, copies of the As-built drawings are to be provided.” 30. There is discussion regarding changing the word “consultant” to “inspector”, “must” to “shall” and “provide a summation” to “summary.” Hurlburt recommends adding “… shall provide a summary of the information presented and the persons in attendance.” Members agree. 33. Revisit later in the meeting. 54. Hurlburt reads #54 into the record. Hurlburt states this person has been hired. Conservation Commission Meeting Minutes June 12, 2002 Page 5 Lang states the Commission needs to decide whether or not the applicant should hire a full-time consultant. Benevento recommends the following: “The applicant shall hire a full-time, on-site, independent environmental inspector, approved by the Commission whose function shall be to represent the interest of the Commission.” Hurlburt recommends defining “on-site” and states that the Commission has in the Standard Conditions in the ordinance that allows for $5,000. Lang states the Fire Department is very concerned about incidences that might occur. The proposed consultant would work side by side with those groups. It probably would not be a 24- hour a day job. There would be certain times that we would like their presence. Lang recommends the following: “Activities of the inspector will be: · to collect the daily log during periods of when they are present in the water, · summarize construction restoration activities, · note turbidity and extent of any sediment movement, · inspection of barge · shell fish and marine growth, · evaluation of various mitigation measures, and · sediment discharge of drilling fluids. 62. (3) Communication Plan There is a draft form of a Communication Plan. It’s intention is to notify all boaters, fishermen, the Harbor Authorities, etc. when they will be at a specific area. She recommends the following: “The Conservation Commission could review and approve a Communication Plan.” Donnelly states he believes it is not the Conservation Commission’s job to specify how the applicant should install the pipe or what alignment the pipe should take, but should address the design that is developed by the applicant. Donnelly’s major concern is that the way that is going to be monitored to be able to determine whether or not it is installed the way the applicant promised to install it. If any unforeseen events occur, how will the applicant handle that? After some discussion Hurlburt recommends the following: “Communication Plan should be submitted to the Conservation Commission and the Beverly Public Library. Donnelly recommends the following: “The Communication Plan will define how the project progresses, provide status reports, define issues, accident reports, problem resolutions and be communicated to all state agencies including the Beverly Conservation Commission. Conservation Commission Meeting Minutes June 12, 2002 Page 6 Benevento recommends, “be communicated to the Beverly Conservation Commission. Said report shall be available for public viewing at the Beverly Public Library, Conservation Commission and the Harbor Authority.” 64. Hurlburt reads #64 into record. Benevento refers to the Mass Highway Standard Specifications has an article when contractors bid on projects called “Care and Restoration of Property.” It says that if the contractor damages anything, he is responsible for fixing it to its original condition or better. Benevento states if the applicant causes damage to a resource area, then they must restore it. Mazuy states the applicant is going to do damage and the Commission is trying to limit the damage. Lang states if there is a big lobster kill and people can’t get lobsters anymore in the harbor, then that would be damage. The applicant should either post a bond or they set money aside into a mitigation fund. 65. Members agree to eliminate #65. 69. Hurlburt reads #69 into record. There is discussion regarding hiring a consultant. Benevento states the Commission should not go through a bid process because the Commission wants the best consultant it can find. Mazuy revisits #19. He expresses concern regarding the last two lines which talks about “providing in perpetuity …”. He recommends the following: “they have the right to make application to the Commission after three years for relief from the perpetuity provision based on the report by a Wetlands Scientist, who can satisfy the Commission. The Commission members revisit the issue of the bond. Mazuy recommends considering a performance bond just to give security that the applicant will comply with the provisions and if they do so, the bond will be returned. He recommends $2 million bond because he is looking for further assurance of the applicant’s good faith and their desire to comply. Lang states a problem he has with the bond is that there is no way in the world you can set up a baseline where you can step in and collect the bond. He states he would rather the applicant sets aside mitigation money. Lang also expresses concern that the applicant will advise the Commission in the event of a burst pipe, etc. He states he is not real concerned about a construction mishap, but more worried about a short-term persistent strain of contamination. Conservation Commission Meeting Minutes June 12, 2002 Page 7 Lang states he thinks the damage will be subtle damage that you can’t measure. Benevento states he thinks the entire Order and the whole process is being somewhat jammed down his throat and the Commission is accepting things that it normally would not accept if “Joe Citizen” walked in and asked for some of these things. The Commission does not really have a choice. He states there are comments such as “It will only be the spread of a little bit of contamination over uncontaminated areas” and “It’s not really highly contaminated, just a little contaminated.” That is like integrity – “we have a little integrity.” Benevento states there is little or no impact going through Boston Harbor and there are “all these things happening to them” and the Beverly Conservation Commission is contemplating hiring a consultant, having a bond posted, etc. He recommends having the applicant post a bond and require them put up mitigation money. 33. Lang reads the condition into record. Benevento moves to keep condition #33, seconded by Mazuy. There is discussion. Benevento states what this condition says is, as with any other project in this city, if they were putting the pipeline down Cabot Street and they ran contaminated soil from a gas spill, they would have to remove and legally dispose of those soils. If the applicant encounters contaminated material, they would have to remove and dispose of it. Benevento states they must take appropriate measures to protect the dispersing of contaminated sediments outside of the area of excavation or to uncontaminated areas. Benevento moves to amend the previous motion to include the definition of contamination to be any sediments with more than 370 parts per million of chromium, seconded by Mazuy. Motion carries 5-2 68. $2 million performance bond shall be furnished … Goodenough states she thinks there should be some mitigation money available. Lang asks what the mitigation money would pay for. Mazuy responds that it would secure the basic performance of the obligations under this Order. Lang questions how a “non-performance” would be measured. He states most of the discussion has been impacts to the fish and lobster population. Mazuy states he is personally concerned about swimming on the beach and getting some kind of ailment or having to shut down the beach because the parts per million washing up on the beach exceed the limit. He states he is trying to reach a reasonable level to give a little more security. Benevento questions if the Conservation Commission should have money available for potential testing, hiring of consultant, etc. Conservation Commission Meeting Minutes June 12, 2002 Page 8 There is discussion about testing. Lang expresses his concern that there is no analytical baseline to make the determination of contamination. He questions how the Commission would know if damage occurs. Benevento asks if the levels are above the 370 parts per million, are the affects obvious. He asks if lobsters would be washing up on the beach. Lang responds that he cannot answer that absolutely but he does not think it would be obvious. Mazuy moves to keep this condition, seconded by Johnson. Motion carries 5-2. Approval of the Entire Order of Conditions Mazuy moves to approve the Order of Conditions as amended, seconded by Paluzzi. Motion carries 4-3. Lang recommends specifying that the water quality monitoring stations that have been proposed be present within the area of entrance and exits of the horizontal direction drawn and that an additional set of stations in the area where the sediments are elevated (2.3 or 2.4). Adjournment Mazuy moves to adjourn, seconded by Donnelly. All members in favor. Motion carries.