By Bill Kirk
---- — The town has reached a settlement with Bancroft Road resident James Berberian on a federal lawsuit he filed after Water Department employees allegedly dumped hazardous material into wetlands on his property in 2010.
The Board of Selectmen voted 5-0 last Thursday, Aug. 8, to accept the agreement, which was brokered between Town Counsel Tom Urbelis, special counsel Tom Gorman and Berberian’s attorney, Joseph Wadland.
Because the agreement includes a payout of an undetermined amount, the executive session meeting was also attended by Finance Committee Chairman Jon Stumpf along with Assistant Town Manager Steve Bucuzzo.
The vote came after the board met behind closed doors to discuss the agreement. It was one of many executive sessions the board has held in recent weeks on the lawsuit, originally filed in U.S. District Court on Feb. 8, 2012 and amended on May 9, 2013.
Officials said details of the agreement are not being made public until after it is signed by both sides. It should be released later this week or early next week.
In the lawsuit, Berberian claims that during a three-day period in 2012 — from Nov. 10 to 12, town Water Department employees dumped thousands of gallons of water from a 6 million-gallon storage tank adjacent to the Bancroft School into a storm drain.
The tank was being drained so the sludge that settles to the bottom could be cleaned out. Berberian claims in the lawsuit that the sludge was also pumped into the storm drain, and that it contained traces of arsenic, cadmium, chromium, nickel and lead, as well as less-harmful minerals like manganese and iron.
Some of the material was taken away in trucks, according to the lawsuit. But the lawsuit claims there are no records of where the material was dumped.
Much of the material went downhill toward South Main Street/Route 28, then crossed under Bancroft Road and entered the wetland area adjacent to 2-4 Bancroft Road, which is where Berberian lives.
Berberian claims that the pumping out of the tanks by Water Department employees “continued for eight hours on the first and second days of pumping and five hours on the third day.”
In the amended complaint, he says the discharge was done without any permits and violated the federal Clean Water Act, which is why the case is in federal court. Further, the complaint alleges that additional discharges of hazardous materials have gone onto his property as a result of the ongoing construction project at Bancroft School.
The end result of all the discharges, he said, is that heavy metals have contaminated a wide swath of wetland and may in fact have washed further downstream, toward property owned by Phillips Andover Academy, according to the complaint.
Berberian took a video of the dark-colored water as it was coming out of a pipe from the storm drain onto his property. The water appears coffee-colored. The video, which has been posted on Youtube, also shows some black mud in the wetland on his property.
On numerous occasions, Berberian says he asked the town to test the sludge in the bottom of the tanks, but was rejected, according to the complaint. As a result, he conducted his own tests on the material from the wetland on his property and found traces of cadmium, chromium, nickel and lead.
The town’s Conservation Commission did issue an Enforcement Letter to the water division of the Department of Public Works, requiring remediation of the site and a plan to make sure that such discharges never happened again.
According to the suit, a partial cleanup was attempted, but was inadequate and didn’t take away enough of the harmful material.
“Dark-colored sediment was deposited in patches ... along the ... stream and ... vegetated wetland, for several hundred feet ... onto the landowner’s property, and possibly onto property owned by Phillips Academy,” the lawsuit says.
While town officials have so far declined to comment on the matter because it is in litigation, documents obtained by Berberian’s lawyer indicate that the town has accepted responsibility.
“The Water Department has sent a letter stating the sedimentation is from the water tank and they will take responsibility,” according to the minutes of a Jan. 18, 2011, Conservation Commission meeting, which were cited in the lawsuit.
By May 2011, however, nothing had been done.
“The Water Department is responsible for the material in the wetland; however, they have not done anything to move forward in correcting the problem,” according to the minutes of the May 3, 2011, Conservation Commission meeting.
The lawsuit also claims the town cleaned out the storm drains near the Bancroft School on Nov. 18, 2011, causing more sediment to be washed into the wetland.
The lawsuit claims this action violated a state Department of Environmental Protection order, which only authorized the town to take actions approved by the agency.
The wetland drains into Rogers Brook, a tributary of the Shawsheen River, which leads to the Merrimack River.
None of the selectmen would comment on the agreement after Thursday’s meeting.
Berberian’s attorney said he couldn’t comment on the agreement until after it was signed by both the town and his client.