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| Former Residence at 66 Leverett Rd., aka Lot O-32 (Courtesy of Shutesbury Assessors) |
In my previous post, Lot O-32’s past life as an automotive repair shop and unofficial dumping ground came back to haunt the town–albeit, temporarily–when reportable levels of polychlorinated biphenyls (PCBs) were discovered in groundwater samples behind the former three-bay garage.
Ten years later, the parcel’s role as a former Department of Defense (DoD) site has become an issue, triggering another Release Notification to the Massachusetts Department of Environmental Protection (MA DEP).
Library Grant Application Spurs New Site Assessment
Town officials discussed the need to choose between Lot O-32 and a parcel behind Town Hall as a site for a proposed new library at a July 20, 2021 Select Board meeting. The Library Director noted that “targeted soil sampling” would be necessary to allay any fears regarding the safety of Lot O-32. It was decided that the garage building would be demolished and debris cleaned up on the parcel before soil and water testing was performed.
Environmental firm O’Reilly, Talbot & Okun (OTO) was hired to perform a Limited Subsurface Assessment of Lot O-32. In their report dated October 5, 2021, they describe the 10 soil boring locations detailed below.
All samples were analyzed for volatile organic compounds (VOCs), polychlorinated biphenyls (PCBs), and volatile and extractable petroleum hydrocarbons (VPH/EPH).
Sample B-9 was found to have the legally reportable limit of 100 mg/kg of C5-C8 aliphatic hydrocarbons, requiring a Release Notification Form filing with MA DEP. The firm recommended notification to MA DEP by January 28, 2022.
With a debt excluded override vote to fund a new library scheduled for June 28, many questions come to mind:
Will this issue fade away like the PCB discovery 10 years ago?
How long might remediation take and has the town done any work on this problem since being notified by OTO in October 2021?
What might it cost to remediate the site–and who must pay?
What does this mean for a possible construction project?
What are the alternatives to constructing a building on Lot O-32?
I set to work finding answers to these questions. Here’s what I found.
1. Will this issue fade away like the PCB discovery 10 years ago?
Other than being reportable releases of contaminants at the same parcel, the 2012 and 2022 filings with MA DEP have little in common.
For instance, the 2012 PCB release constituted a 72 Hour Reporting Condition because of a “release to groundwater near water supply”. The release of VOCs discovered in late 2021 and reported in early 2022 was characterized as a “release of oil to soil exceeding reportable concentration(s) and affecting more than 2 cubic yards”, placing it within the 120-day reporting threshold.
MA DEP-imposed Immediate Response Action (IRA) plans differed greatly for these two filings. In 2012, state officials advised additional sampling of the monitoring wells on Lot O-32, sampling of private drinking water wells within 500 feet of where PCBs were found, as well as repeat testing of the soil at that location. As noted in my previous post, all PCB test samples returned values below reportable levels and the Release Notification was retracted.
The VOC release prompted a more complicated IRA.
The town filed the Release Notification Form on January 28, 2022. In a Notice of Responsibility letter dated February 1, 2022, MA DEP officials identified the forms, one of which the town must submit to the Department on or before January 28, 2023, as a “party with potential liability for response action costs and damages under M.G.L. c. 21E, §5”:
A Tier Classification Submittal;
A Permanent Solution or Temporary Solution Statement; or
A Downgradient Property Status Submittal.
The letter suggests that liable parties “take prompt action” to reduce cleanup costs and avoid annual compliance fees. The town must employ a state-certified Licensed Site Professional to oversee or perform all IRA work.
2. How long might remediation take and has the town done any work on this problem since being notified by OTO in October 2021?
The Massachusetts Contingency Plan, the regulations created to administer Chapter 21E, has a maximum timeline of six years from notification of MA DEP to complete site remediation. Full compliance can occur at any point before the six-year deadline.
There is no evidence that Shutesbury has taken any assessment or remedial action since being notified of the VOC release by OTO. A Library Trustees meeting on November 4, 2021 discussed OTO’s findings and two company representatives were present to answer questions. At this meeting, OTO’s representatives stated that gasoline migrates within a 400-foot area.
An unidentified Trustee stated: “We are required to report within 120 days, and within those 120 days we would conduct further testing, conduct remediation, or take other steps before reporting to DEP.”
While the 120-day reporting portion of the statement is correct, the rest is not, since MA DEP did not issue an IRA until after it received the Release Notification submitted by Shutesbury on January 28, 2022. If Shutesbury wanted to get started as early as possible on the IRA, the Notification form should have been filed immediately.
The town could have used those four months between October 5 and January 28 to determine the status of Lot O-32 and put residents’ minds at ease. Apparently, nothing has been done in the nearly five months since filing, either, as that information surely would have been posted on the library’s website in the interest of transparency.
The Trustees met again on November 8, 2021, and unanimously decided to recommend Lot O-32 as the site for a proposed new library. The Select Board minutes of November 9, 2021, contain this recommendation by the Trustees and the statement, “the lot received a clean bill of health”.
3. What might it cost to remediate the site–and who must pay?
Since there was no further assessment of Lot O-32 following the OTO report last fall, there is no available information regarding remediation or its costs.
As to who is expected to pay for the cleanup, it is clear that MA DEP considers the town of Shutesbury, as the owner, the “potential” responsible party. The Notice of Responsibility states:
You should be aware that you may have claims against third parties for damages, including claims for contribution or reimbursement for the costs of cleanup. Such claims do not exist indefinitely but are governed by laws which establish the time allowed for bringing litigation. The Department encourages you to take any action necessary to protect any such claims you may have against third parties.
In this matter, the Shutesbury Town Administrator (TA) stated at a public meeting on May 11, 2022 (1hr. 30 min.) that the Army Corps of Engineers/DoD “will be held responsible” for necessary remediation.
In an undated letter (available from the Shutesbury Town Clerk) from the TA to MA DEP, reference was made to a January 11, 2022, meeting between unnamed town officials, OTO representatives, and representatives of the Army Corps. The letter states that the Corps did not consider this release “a reportable event”.
I could find no minutes or notes from the above-referenced meeting, though a representative of the Army Corps was copied on the Notice of Responsibility letter from MA DEP.
At a Select Board meeting on January 19, 2022, the “TA update” describes a meeting between a DEP representative, an OTO representative, and, assumedly, the TA. The update states that both DEP and OTO consider the Army Corps/DoD the responsible party. There was no mention of an Army Corps representative being present.
It remains to be seen whether the DoD will take responsibility for remediation at Lot O-32. Their seeming dismissal of this release event is understandable since a positive finding infers that their cleanup in the mid-1990s was incomplete.
The town could have saved itself this worry over liability if it had commissioned a "21E Site Assessment" before purchasing the property in 2004–which could have absolved the town of responsibility in regards to legacy contamination cleanup costs. Real estate due diligence often includes a Transaction Screen or Phase 1 Environmental Site Assessment. The Commonwealth of Massachusetts considers such actions relevant because:
Disclosure obligations for any known contaminants under Chapter 93A can influence a buyer’s decision to purchase, the price offered, and conditions for the sale;
The presence of hazardous waste is considered material information to a buyer and its presence is considered a material defect;
The presence of hazardous waste is a public health issue.
Considering the town’s historical knowledge of Lot O-32, it was negligent toward Shutesbury taxpayers and residents that town officials did not undertake such an assessment.
If Fuss & O’Neill had performed the Transaction Screen in 2004 prior to purchase instead of 2010, been given access to the inside of the garage, and been informed of the former military installation, their report would likely have listed many more environmental conditions and risks. If such a report had been made available to Shutesbury taxpayers before the vote to purchase the land, the outcome may have been different.
4. What does this mean for a possible construction project?
The town asserts that, because the contaminated B-9 soil bore site is 900 feet from the proposed library location, construction will not be impacted. This may or may not be true; the OTO report states, “Further assessment is warranted to evaluate the source, nature, and extent of the release detected at boring B-9.”
There is also the question of potable water, required for a building permit. According to the OTO report, water from the test well drilled in 2014 will need additional assessment from experts in the field of water potability. Though Trustees said at the November 9 meeting that the water was not potable “because it is a test well”, OTO states that “the town is assessing whether groundwater from this well might be a suitable future source of drinking water.”
5. What are the alternatives to constructing a building on Lot O-32?
The Massachusetts Contingency Plan, 310 CMR 40.00, allows owners of contaminated properties to apply an Activity and Use Limitation (AUL) to said property. This is often done as part of a Temporary or Permanent Solution to site contamination, one of the three possible submittals required by MA DEP as noted earlier in this post.
AULs must be recorded with a parcel’s deed to be valid. The purpose of these instruments is fourfold:
To notify interested parties of possible oil and hazardous material remaining on the site;
To identify allowable activities and uses on the site;
To identify non-allowable activities and uses on the site;
To delineate the owner’s obligations regarding maintenance of the AUL.
In the event of high cleanup costs for Lot O-32, an AUL could limit taxpayer liability by restricting activities that would be allowed on the parcel. The site would need further assessment and be characterized as “No Substantial Hazard” or “No Significant Risk” before applying the AUL.
Whether or not voters decide to borrow funds in excess of the proposition 2-½ limit to build a new library, the contamination issue on Lot O-32 needs to be addressed. The question is not whether the site can someday be developed; waste disposal sites are often rehabilitated and re-used. The concern for Shutesbury taxpayers is that of cost. Transparency dictates that Shutesbury Town Officials should have taken steps to determine the cost of cleaning up Lot O-32 prior to the vote on whether to borrow funds to build a library there. Can we afford a new municipal building as well as cleanup costs for Lot O-32? It is something to consider carefully before casting our ballots on June 28.
