Monday, July 30, 2018
“It’s a fact. In 1799, Paul Revere was Chairman of the Board of Health in Boston, the first local health board in Massachusetts. He and his fellow board members were given broad authority to control the “filth and offal” that contaminated the environment and produced deadly epidemics.” – From the Massachusetts Association of Health Boards (MAHB) Website.
Pepperell, Massachusetts – More than 24o years after Paul Revere’s legendary ride to warn residents of Lexington and Concord that the British were coming, Pepperell residents – staring at the potential of 50,000 trailer truckloads of potentially contaminated construction fill being dumped in their town – have learned their board of health is definitely not their ‘founding fathers’ board of health.
Despite warnings from residents of the potential harm to health, roads and property values from the proposed conversion of a local gravel pit to a construction fill dumping ground, last Tuesday the board of health (BOH) again delayed taking any action.
The board of health is just “kicking the can down the road,” according to resident Caroline Ahdab.
For Ahdab, who had to pry information from town officials who kept residents and the board of selectmen in the dark about the proposal for more than five months, the health board’s delays are troubling.
“I am extremely concerned the Board of Health and Health Agent do not realize the severity and many-pronged consequences of the land-fill project at 161 Nashua Road.”
Ahdab is not alone in her concern and frustration over the lack of action by the board of health – which has been aware of the project for at least three months.
For example, at the last meeting of the health board, resident David Kent asked, “is there anything the board of health can do right now?”
BOH chairwoman Margie LaFluer and member Virginia Malouin had maintained the board should stand pat and let the board of selectmen and the town administrator lead the efforts, telling people it was complicated.
Malouin went so far as to say, “I don’t think we [the members of the BOH] are qualified to do it,” when it came to developing and passing board of health regulations regarding the reclamation project.
Throughout the meeting the board of health members demonstrated a combination of reluctance to act and a disturbing unfamiliarity with the scope of their authority – despite having several weeks to develop a plan of their own as elected officials with a duty to protect.
Both LaFluer and Malouin reluctantly answered questions from the residents, at times appearing condescending and even lecturing those present.
But as the weeks march on, more residents are beginning to question if the board members even understand their job, despite their claims to be doing the best they can.
Since at least 1799, Massachusetts law has granted boards of health broad powers to protect a community’s health and environment.
While boards of health in other Massachusetts communities have created regulations regarding the type of project proposed for Nashua road, Pepperell BOH members continue to procrastinate.
In a recent interview Larry Buthmann, who lives near the site, expressed frustration with the board.
“The board of health needs to get moving on things. They have the authority and a responsibility to act to protect the town, and they could start by adopting what Ashby’s board of health did. That’s a good beginning, and something they could always amend and build on or update as need be down the road.
“I just don’t understand, nor do I accept the board of health sitting back and waiting for the board of selectmen. The board of health has its own duties and they are independently elected,” concluded Buthmann.
Renee D’Argento has attended several meetings of the boards of health and selectmen. She also sent an email to the BOH members on July 6, 2018, writing:
“Dear Board of Health Members Durno, LaFluer, and Malouin:
The clock is ticking. The two boards/entities have been notified by the applicant-begun when he met with the TA in December of last year. I am requesting that you please stop dragging your feet and do something to stop this reclamation project now! I request that the Board of Health:
Use its power and jurisdiction to take swift action to develop and implement a Land fill by law, and also a Noise bylaw to protect the public health and welfare of the community.
Send or sign onto a letter (with the Board of Selectmen) to DEP opposing the project-please use my letter (submitted to you-Phil Durno, over a month ago) if you wish.
Work diligently and collaboratively with the Board of Selectmen and the Town Administrator, and other town employees/consultants to do what you can to stop this project.
D’Argento complained that while the board of selectmen have responded to the letter she sent them, the board of health members have yet to respond to her email.
She also expressed to The Candle, that simply waiting on the board of selectmen to lead was not enough, emphasizing the board of health needs to lead and exercise their power.
Other residents similarly expressed disappointment, complaining that the board of health has dodged their questions, both at meetings, and by not responding to emails.
The Candle also sent questions by email to the board of health on more than one occasion and has yet to get a response to the emails.
D’Agento told The Candle over the weekend, “Following my letter I have observed in their [BOH] meetings a reluctance to address these very valid concerns from me and other Pepperell residents as they delayed action, and also attempted to squelch public questions and discussion during the last meeting.”
BOH members told their constituents they wanted to wait until the newly hired special town counsel met with the board of selectmen before the health board acted.
Board member Virginia Malouin stated she understood the board of selectmen were “meeting July 30th with the new environmental attorney.”
With the meeting scheduled to meet so soon, the board of health members suggested it was prudent that they wait – dismissing concerns from residents that the board has yet to act with the power given them by state law to protect the community.
When one resident asked the board to explain what authority the BOH had to deal with the proposal, LaFluer instructed health agent Kalene Gendron to explain.
Gendron began outlining what the BOH does, to which Malouin added that the resident could visit the Massachusetts Association of Health Boards (MAHB) website to find out more.
Ironically, one of the opening paragraphs on the MAHB website’s “About” page states:
“Under Massachusetts General Laws, state and local regulations and community direction, Boards of Health are held responsible for disease prevention and control, and health and environmental protection and promoting a healthy community.” – (Emphasis added.)
Residents seemed to have more information than BOH members as to what action the board could take, pointing to the action of boards of health in other communities facing or preparing to face similar reclamation projects.
LaFleur responded to questions as to why the board of health had failed to act on developing any regulations, “I know you are looking for something to happen quickly. But that could be dangerous.”
However board members offered nothing to back up her statement, other than it was complicated, and what they eventually did needed to be ‘error-free’ as Malouin offered for a reason to wait.
Also disturbing to residents was the board’s failure know the status of a template of regulations from the new special town counsel for the board of health – something that may have been already written and ready to act on.
“Nothing is NOT Something.”
BOH member Phil Durno seemed to differ with his colleagues’ willingness to defer to the board of selectmen and the town administrator in place of his board exercising their statutory authority to act.
When LaFleur asked her colleagues “I don’t know what kind of motion we should make tonight … if we should just take no action at this point or wait? How about that Phil?”
Durno replied, “It leaves a bad taste in my mouth … we’ve got to do something. Nothing is not something.”
But that’s what the board did … nothing.
They doubled down on waiting until they get direction from the selectmen’s meeting on Monday, July 30, 2018.
Notwithstanding his frustration with the BOH’s hesitancy to act, Dave Lavender, who lives near the proposed reclamation dumping ground, politely suggested the BOH at least ask to be officially part of the board of selectmen’s meeting with the new environmental lawyers.
And then, yet another delay …
According to town officials, including the board of health, a meeting with the new town counsel was to occur tonight, Monday, July 30, 2018 – but on Thursday the officials announced “The client/attorney meeting scheduled with Attorneys from Mirick O’Connell and Board of Selectmen has been rescheduled due to the need to perform more research before this meeting. The tentative date is August 13, 2018, but that needs to be confirmed with Board of Selectmen at a public meeting.”
Could The Pepperell BOH Learn From Another Town’s BOH?
Several residents raised questions as to what the BOH could do in case the operator of the proposal decided to start dumping without an administrative consent order from the state – something that happened in at least one other Massachusetts town.
Grover Pillsbury anxiously stated, “I’m just saying, you know, if he [the gravel pit owner] decides tomorrow morning ‘we’re going to start dumping,’ there could be twenty trucks in and out of there before we can blink an eye.”
The southern Massachusetts border town of Uxbridge experienced something like what Pillsbury warned.
It is currently fighting a similar operation which got started a few years ago without any initial permitting – but after being blindsided, its board of health became very proactive.
Notwithstanding an administrative consent order issued by the Massachusetts Department of Environmental Protection (DEP) after the Uxbridge project got started, residents and Uxbridge officials are contesting the operation, fearing water and soil contamination from the fill being trucked to the site.
According to a story published by the Worcester Telegram, dated February 9, 2017, even though the Uxbridge reclamation site “operates under an administrative consent order signed with the state DEP … members of a grass-roots group, Uxbridge Citizens for Clean Water, as well as the town’s Board of Health, have criticized the enforcement capabilities of regulators to make sure the groundwater and land are adequately protected.”
Uxbridge created some local bylaws and recently won a key battle in court in February, which was also reported in the Worcester Telegram – stopping the “illegal importation” of fill in violation of the bylaws.
And closer to Pepperell, the Ashby Board of Health enacted the Major Earth Filling Permit Regulations in August of last year – in an effort to make sure they were prepared for any fill operation that might be proposed.
Pepperell’s board of health was made aware of the Ashby regulations weeks ago but has chosen to not to move on creating anything for Pepperell.
LaFleur and Malouin seem content to let the other town boards do the work and wait until something is created that is ‘error free.’
While the board of selectmen in Pepperell, through their new town administrator, is coordinating research and legal representation for the town in dealing with the Nashua Road Gravel Pit proposal, the board of health has the ability to move on regulations similar to what Ashby put into effect.
According to the Manual of Laws and Regulations Relating to Boards of Health, Massachusetts Executive Office of Health and Human Services; Department of Public Health:
“Local boards of health in Massachusetts are required by state and local laws and regulations to perform many critical duties related to the protection of public health. These duties cover a wide range of public health control and prevention activities, including: disease surveillance; the promotion of sanitary conditions in housing, recreational facilities, and food establishments; elimination of nuisances; the protection of the environment; and numerous other responsibilities. These requirements reflect the principle that many critical health problems are best handled by local officials familiar with local conditions.” (Emphasis added.)
With that in mind, on Saturday, selectwoman Lisa Ferolito sent an email to the board of health members:
“I am writing to ask whether you are currently working on writing a regulation to stop soil from being dumped in the Town of Pepperell. If you have not started, I ask that you do. The soil reclamation project proposed for the site at 161 Nashua Road is not beneficial, and probably detrimental, to the citizens of our town, as well as the quality of life we are accustomed to.
“We are awaiting special counsel to meet with us. In the meantime, please do what you can to help with this issue …”
According to Ferolito, board of health member Malouin responded to the email, writing, “Thank you for your e-mail, and I take your request seriously…”
For many residents, Malouin’s response sounds like the board of health’s claim they are doing their best.
To most of them its time for some action, not just words.
While the board of health is not scheduled to meet again until next week, it does have the option to call a special meeting to begin to create regulations, as requested by Ferolito and all the residents who continue to worry about the inaction of the board of health.
They wait anxiously, all while, as D’Argento wrote the board of health in early July:
“The clock is ticking.”