Andover Townsman, Andover, MA

November 7, 2013

Water sludge battle flows on

Judge urges Berberian, town to settle

By Bill Kirk
bkirk@andovertownsman.com

---- — Locked in a costly, drawn-out legal battle with the town, Bancroft Road resident James Berberian took his case directly to his adversaries Monday night, asking members of the Board of Selectmen for face-to-face meetings without lawyers as a way to settle his lawsuit.

Berberian, of 2-4 Bancroft Road, held up a packet of documents, quoting from them extensively throughout his 15-minute presentation.

“I’ve invited selectmen to meet me without counsel to review these,” he said, waving the documents in the air. “If you had seen these, you wouldn’t have let this continue one more day.”

Berberian sued the town in federal court in February 2012 alleging that public works employees dumped water tainted with arsenic and other toxic metals into wetlands on his property in November 2010.

The town and Berberian attempted to settle the case in nonbinding mediation earlier this year and even came close to an agreement, only to see it fail at the last minute.

The case is back in federal court. During a hearing last week, Magistrate Judge Robert B. Collings urged attorneys for both sides to attempt to reach a settlement, according to documents in the case.

Monday night, in response to Berberian, selectmen Chairman Alex Vispoli read a three-page statement, with attachments, saying board members were limited in what they could say about the case because it was pending litigation.

But, he said, the town has attempted to settle “because of extensive legal fees and consultant fees being incurred by all of the parties in the litigation.”

Vispoli also said the town had offered to make Berberian a settlement payment of $440,000, without admitting wrongdoing, but that the deal failed when Berberian couldn’t reach a financial settlement with an engineer working for the town on the site.

Finally, the town said it would be filing a report with the Department of Environmental Protection this week, which would include a human health risk assessment of the site.

Berberian repeated several times that he is concerned about the health and welfare of his family, including two children and nieces and nephews who lived with them.

He said the sediment posed a “significant risk for cancer” and that the sediment was in the Bancroft water tanks.

He quoted from another report saying that when Scuba divers went to take samples of the sludge at the bottom of the 6-million-gallon, underground reservoir near the Bancroft School, they reported that low visibility in the tank suggested that the sediment was actually suspended in the water, meaning it could get into the water supply.

But Vispoli, reading from the town statement, said the water had been tested on numerous occasions and that there was no threat to public health.

Despite the public back and forth, settlement talks are continuing. The Board of Selectmen held an executive session Monday night to discuss the litigation.

Berberian said last week he made a settlement offer to the town that would remove a gag order local officials sought that would have prevented him or anyone associated with his side of the case from saying anything about the matter, even after it was settled.

“They wanted not just me to be gagged, but everyone else on my side of the table to be gagged as well,” he said. “But we can’t control everybody. We can’t control what everybody says.”