“Environmental Performance Standards” – State Attorney General backs article empowering Board of Health in its dealings with WIN Waste Innovations plant

By Mark E. Vogler

Local regulations that were initially drafted and approved by the Annual Town Meeting a decade ago to bolster the Board of Health in its oversite of the town’s trash-to-energy plant on Route 107 are finally official. The state Attorney General’s Municipal Law Unit recently issued an opinion approving Article 18 – which was passed by a margin of 44-1 by Town Meeting members in May – to establish a section titled “Board of Health-Solid Waste Facility Environmental Performance Standards” as part of the town bylaws.

“We approve Article 18 because, under our standard of review, we cannot conclude that Article 18 conflicts with state law,” state Attorney General Andrea Joy Campbell wrote at the end of a nine-page decision issued Dec. 6 by the attorney general’s Municipal Law Unit.

“However, the Town should both discuss the issues raised in this decision with Town Counsel and whether the by-law should be amended at a future Town Meeting to address these issues,” Campbell concluded.

The new regulations enable the Board of Health to impose environmental standards in a number of areas, including emissions of visible smoke, storage of flammable materials, sound pressure levels and emissions of ash. Any violation under the new regulations could be punishable by a fine of $300 per violation each day.

“Solid waste facilities shall not be operated in a manner to cause any dangerous, noxious, injurious or otherwise objectionable hazard; noise or vibration, smoke, dust, odor or other objectionable pollution; glare, conditions conducive to breeding of insects, rodents or other vermin, substances, conditions, or elements to an extent so as to adversely affect nearby neighborhoods,” according to Section 4 of the article, which established minimal acceptable standards. There’s also a provision in the new regulations that allows the Board of Health to require information, data and testing to be performed and supplied at the owner’s or developer’s expense in order to determine the findings of compliance.

Precinct 10 Town Meeting Member Peter Manoogian, one of the local government leaders who was heavily involved with the crafting of the new regulations, called the Attorney General’s approval of Article 18 “a victory for the Town of Saugus and a loss for WIN.” “The Attorney General’s approval of this bylaw affirms the authority and ability of a local community to protect public health and safety,” Manoogian said in a statement to The Saugus Advocate.

“The public should know that Saugus Town Meeting, the Board of Health, the Town Manager, Conservation Law Foundation, the Alliance for Health and the Environment and many citizens communicated throughout the Summer and Fall with the AG responding to the nonsensical arguments raised by WIN’s high priced Boston law firm this past July,” Manoogian said.

“The Board of Health now has the authority to hold WIN accountable for threats and nuisances it causes, and I am confident they will do so with this bylaw adopted by Saugus Town Meeting,” he said.

Mary Urban, Sr. Director of Communications & Community, issued the following statement in the company’s response to the Attorney General’s decision: “WIN Waste Innovations remains in compliance with all local, state, and federal permits. We agree with the attorney general’s opinion that DEP regulations, which are more stringent than even the EPA, are thoroughly protective of public health and safety. We are also appreciative of the DEP’s encouragement for the town to further amend the article to prevent ambiguity that could ‘[interfere] with DEP’s authority to regulate and permit solid waste facilities.’

“We will continue not only to operate in compliance with DEP standards, but also to serve as an environmental steward through initiatives such as our salt marsh restoration program and other conservation efforts at the Bear Creek Wildlife Sanctuary. We will also continue to collaborate with the Board of Health and other local leaders to ensure we remain an excellent corporate partner and add value to the community.”

Precinct 6 Town Meeting Member William S. Brown was a vocal, but lone opponent during Town Meeting deliberations on Article 18 last spring when he called it “unnecessary.” “We already have the federal and state regulations for the WIN facility. It’s like having the Saugus EPA now,” Brown said.

“We should be working to repair our relations with WIN Waste. This article can only have adverse effects on any negotiations with WIN Waste. We should be working with these people. There should be an open dialogue, instead of continuing our adversarial relations,” he said.

The article was initially drafted in 2014 and passed by the Annual Town Meeting that year. But the state Attorney General’s Office determined that provisions in the article were more restrictive than what the state allowed. For instance, state law provides a fine of $300 per violation, while the town bylaw as previously introduced allowed a fine of $1,000 per violation. This year’s Town Meeting vote essentially corrected the flaw identified in the 2014 version of the article.

Board of Selectmen Chair Debra Panetta hailed the measure as “a very important article” while addressing Town Meeting last spring. “We need to pass this to give the Board of Health some teeth to protect us,” Panetta said.

Kelli E. Gunagan, Assistant Attorney General and Director of the Municipal Law Unit, noted in her review of Article 18 that the unit received correspondence from Legal Counsel for Wheelabrator Saugus, Inc. “urging this Office to disapprove Article 18 because it conflicts with state law on various grounds.”

“We have considered the opposition’s allegation that Article 18 conflicts with state law because the Town failed to comply with its by-law provisions governing the procedures for voting at Town Meeting,” Gunagan wrote in the decision.

“We conclude that a Town’s failure to comply with its own local by-laws does not provide the Attorney General with grounds to disapprove Article 18. The opposition urges us to disapprove Article 18 because the Town failed to take a roll call vote for Article 18 as required by Section 205.00 of the Town’s by-laws, ‘Use of Check List,’ and because the Town did not take the necessary vote required by Section 202.00 of Town’s by-laws, ‘Warrant Articles,’ to discuss and vote on Article 18 ‘out of order’ at Town Meeting. These assertions do not provide the Attorney General with grounds to disapprove Article 18.”

Gunagan noted the attorney general’s review also considered “the opposition’s allegation that Article 18’s provisions regulating emissions and pollution from solid waste facilities conflicts” with state law, “which authorizes local boards of health to adopt rules and regulations that regulate and control atmospheric pollution. We conclude that the new Section 514A.00 does not conflict,” she said.

A closer look at Article 18

514A.00 Standards Board of Health Solid Waste Facility Environmental Performance

Section 1: Preamble. This section establishes environmental performance standards for solid waste facilities subject to Board of Health enforcement.

Section 2: Purpose. The purpose of this section is to protect the rights of the people of Saugus to clean air and water guaranteed by Article 97 of the Articles of Amendment to the Massachusetts Constitution.

Section 3: Authority. This Section is adopted pursuant to the Home Rule Amendment of the Massachusetts Constitution, Article 89 of the Articles of Amendment, and Massachusetts General Law Chapter 111, Section 31.

Section 4: Solid waste facilities shall not be operated in a manner to cause any dangerous, noxious, injurious or otherwise objectionable hazard; noise or vibration, smoke, dust, odor or other objectionable pollution; glare, conditions conducive to breeding of insects, rodents or other vermin, substances, conditions, or elements to an extent so as to adversely affect nearby neighborhoods. Minimum acceptable standards shall be as follows:

A: Emissions shall be effectively confined within any building, or controlled to prevent any nuisance, hazard, or other disturbance from being perceptible (without the use of instruments) at any lot line of the site location.

1. All use and storage of flammable materials shall be confined and maintained in accordance with the strict provisions set forth by the Chief of the Fire Department acting in accordance with duly established fire prevention regulations, codes and standards.
2. Any emission of visible smoke shall meet the then current color standards of the Massachusetts Department of Environmental Protection Division of Air Pollution, and in any event, no emission of smoke shall be greater than 10% opacity.
3. There shall be no emission of ash that can cause damage to the health of humans, animals or vegetation, or that can cause excessive soiling. In no event shall emission of any solid or liquid particles in concentration exceeding 0.2 grams per cubic foot of conveying gas or air be permitted.
4. The maximum permissible sound pressure level at the closest residential lot line shall not exceed more than 10 decibels over background levels at any time, and in no event shall sound pressure levels exceed 69 decibels between the hours of 8:00 a.m. and 6:00 p.m. and 61 decibels between 6:00 p.m. and 8:00 a.m. as measured on a frequency band of 125 cycles per second using a general purpose sound level meter complying with the provisions of the American National Standards Institute, properly calibrated and operated on the “A” weighing network. This regulation shall not apply to: 1. Transient noises of moving vehicles. 2. Noises of safety signals and warning devices. 3. Noises emanating from temporary construction and maintenance activities between 8:00 a.m. and 6:00 p.m.
5. No direct or sky reflected glare whether from flood lights or from high temperature processes shall be permitted when it is determined to be hazardous to human health and welfare or obnoxious. This regulation shall not apply to street lighting or other utilities that are essential for public safety.
6. The Board of Health may require such information, data and testing to be performed and supplied at the owners or developers’ expense in order to determine the findings of compliance.

Section 5: Violations. Any violation of this section shall be punished by a fine of $300 per violation. Each day of violation shall constitute a new and separate violation.