BOS Hear More Serious Concerns from Citizens About Landfill Capping Operation

Residents Want to Know What's Really in That Landfill

by Inanna Arthen
At their meeting on Monday, April 22, the Board of Selectmen included an agenda item titled "Update on Mabardy Landfill/W.L. French Operations." Board Chair Audrey LaBrie stated that this item was to discuss "new information or new questions," adding, "It is not within the purview of the Board of Selectmen to make decisions on these. But we welcome the public comment. And if there's something that needs to be passed on, we will certainly make sure that it gets to the right people."

Board Vice Chair Rick Ward said that he wanted to comment on things said at the March 25 BOS meeting concerning potential toxicity of the old landfill contents--what was found in the test holes that had been dug. Referring to the Courier's citing Jarrett Everton, Director of Environmental Services for W.L. French, in saying that "a battery" was found, Mr. Ward said he went back to reports by W.L. French from 2022. "Just to show that they were reporting this stuff to the state. An additional test pit investigation was performed on October 17 and 19, 2022 to investigate the presence of demolition waste debris beyond the approved final closure limit. 12 test pits were excavated and observed by [Civil & Environmental Consultants Inc.] personnel that were approximately six feet by twelve feet and advanced to a maximum depth of eighteen feet. Debris was observed in test pits that included brick, asphalt, concrete, and auto batteries. So just wanted to point out that little thing, saying it was 'a battery' that was found. There were more batteries found."

Resident Jane LaPointe rose to ask about testing of the capping fill material. "Back on May 28 2020, Keith Hickey was Town Manager and there was a landfill closure agreement between the town of Winchendon and 580 River Street. And one of the items on that said that all fill will be tested at the site that the fill is taken from to ensure it meets all DEP requirements. And in addition, all fill being delivered to the River Street site will be tested on site to ensure the material meets all DEP requirements." In the minutes of the BOS meeting of June 1, 2020, Ms. LaPointe said, "it says that Mass DEP Representative Jim McQuaid has stipulated that the type of fill is important and that every vehicle loaded up with fill will be tested by the company selling the fill and then tested by a town representative upon arriving at the job site. This fill is required to meet all the EPA requirements for allowable fill regarding a landfill. If fill is not accepted for these guidelines, it will be rejected and will not be allowed to come on site." This is not the procedure being followed, Ms. Lapointe said, asking how and why it was changed.

Resident Frank Allen rose to emphasize what Ms. LaPointe had just said. Back in 2019, citizens were told that every truck would be tested; now it's every 500 cubic feet, which is one out of 17 trucks, he said. "This is a huge difference from every truck. It also stipulated that there was funding for it. We were expecting the town representative to be there regularly." Mr. Allen also pointed out that Mr. Hickey met with the W.L. French people privately and negotiated terms, which were distributed to the town Boards via their confidential Dropbox. "Now, is that proper? Is one person in this town allowed to make a financial negotiation like that?" he asked. "I'd like to see what what type of deal he struck."

Mr. Allen continued that the scope of the capping project overall has tripled, from 400,000 tons of fill to over 1.5 million. The contract should have been re-negotiated.

Mr. Allen then went over some history of the landfill which he obtained from DEP records, which he said he had not known. In 1976, he said, Mr. Mabardy opened the landfill with permission from the town of Winchendon. In 1984, the state shut down the landfill, saying it was illegal. The state gave Mr. Mabardy 30 days to come up with a plan, and he did not. In December, 1985, the landfill was closed for three violations: going above the allowed elevation, expanding two acres outside the approved area, and operating past the mandatory shut-down date of June 21, 1985. In 1986, Mr. Allen went on, the state DEP suggests that the illegally dumped two acres of construction debris be moved, consolidated with the previous dump, and six acres would be capped. "The town of Winchendon put a stop to that. Your state overrules it. The town appeals the state has no authority and the capping is not done," Mr. Allen said.

Mr. Allen said that his house was built in 2003 and he wouldn't have bought it had he known what was in his back yard. Now the landfill cap covers 14 acres instead of 6. "Why is nobody being held accountable for this?" he asked. There is supposed to be a $500 per day fine for non-compliance; if the project becomes a nuisance it's supposed to be stopped. "It just makes me want to dig and dig and dig and ask more questions."

Resident Mary Harrington rose to say that the people of Winchendon don't want to be "trash town" and don't want an epidemic of cancer in 20 or 30 years. "There's dumping, there's major violations and you have the power to cease it. We have the power to cease it."

Resident and former Chair of the Board of Health Keith Kent rose to describe his own observations during a visit to the landfill capping site in December, 2023. Then Town Manager Justin Sultzbach called him in his capacity as BOH Chair to meet out on River Street along with other town Board members and representives of W.L. French to view "discoveries made at the River Street project." Mr. Kent emphasized that Mr. French "followed the book" and immediately reported what the workers were finding in the ground to Mass DEP.

At the meeting on site, "Mr. French was there as well as several employees who dug for us a test site hole to show us in disclosure, what was being found in the ground," Mr. Kent said. "I, to my surprise...was the only one that brought a camera to take photos. And thank God I did because there's stuff in these photos that are not in those reports." Showing the photos to the Board, Mr. Kent described them--"Asbestos shingles, all through the ground...the ground full of rebar everywhere. Here's another photo of the test pit, rebar concentrated everywhere, rebar all through the photos. Rebar again all through the test pit sticking out. The rebar was so concentrated that when the gentleman from French, who with his best effort, credit to him, tried to dig up some more of the hole to dig deeper for us, when the gentleman tried to dig the hole, it pulled this excavator off the ground like it didn't weigh ten pounds, put his back wheels up in the air."

Mr. Kent stated that he asked Mr. French directly about batteries in the debris. He quoted Mr. French as responding, "Mr. Kent, they are throughout the entire site." Mr. Kent continued, "I said, what is this blackened earth I'm pointing to? And he said it was all years and years of battery acid being absorbed into the ground. Again, I asked him that question for all points of integrity in front of everybody. And those were his words, not mine. Now that being said, we have an entire test site of battery acid...I just showed you pictures of asbestos shingles all throughout the ground, which are not in the report on the town website, or at least not on the report from 2020, late 2022. We have rebar all through the ground on the test site that are not in those reports from late 2022, and I didn't see them anywhere in 2023."

Mr. Kent continued, "What else is not in these reports that is in the ground? I ask the citizens of Winchendon." This material, such as battery acid, was going to leach into the ground, impacting the Millers River, the Birch Hill Wildlife Management Area, eventually the Connecticut River. Mr. Kent asked why the town had not been informed of this much earlier. "This was ecological terrorism on our town," he said, over decades of Mabardy management of the site. Why have there been no fines or charges? Mr. Kent concluded that the landfill should have "an impermeable liner" entirely around it paid for by Mr. Mabardy.

Resident Marie McKinnon rose to say that she often heard town Boards complain that citizens don't get involved until it's too late. "I know myself and quite a few others have come about the French capping of the landfill as well as any of their operations. We were here in 2019. And we were told that the DEP said that it's got to be closed. And they said specifically at that time, they were only asking for 40 trucks a day. Then it got increased to 65. And by Board members, we were told, just let it increase. It'll get over quicker." She went on, "We feel that this Board and all the Boards should do all their due diligence and cease and desist all operations, until all documentations can be compiled and looked over and reviewed fully...since you have access to everything."

Mr. Allen rose again to comment on Mr. Kent's report of rebar in the landfill, saying he was told it wasn't a concern. "I have been saying from the very beginning that the rebar in the concrete has been exposed and viewable. We all saw it when we went down and did the tour on site with Chuck Mabardy. And we were looking at it and somebody made a joke about it, and he said, 'Oh, yeah, you should see what else is in there.'" But if it was visible, why was it only found during test hole digging now, resulting in the capping area being enlarged? Mr. Allen also spoke about a new retention pond on the property, about 500 by 70 feet when it's raining, asking what's in that water which is running right toward his yard? "You're gonna have to charge me for waterfront, right now this water is overflowing into my property," he said.

Resident David Watkins rose to say that the town needs a plan. The Boards need to get together, Mass DEP needs to come in, real solutions need to be found, and citizens can't afford to pay for all of the impacts themselves. "This is big business involved here now," he said.

Mr. Everton rose to respond to some of the concerns that had been raised. He repeated his updates to the ZBA the previous week (see "Citizens Crowd Continued ZBA Hearing on Gravel Pit Permit at 580 River Street", below). He insisted that he had not seen multiple car batteries. "Max I would say there's probably six batteries on that property. It's not a case where it's littered with batteries. It's a [concrete and demolition] landfill. That's what it was permitted, it's not a trash landfill. You guys have a trash landfill. It's down the street from this one. That landfill is actually a lot more concerning than what goes into this landfill. This landfill is not a toxic landfill, there might be a couple of batteries that are scattered in the property. And they're likely from equipment that was on the property, not from material that was brought in."

Mr. Everton continued that the capping itself is an impermeable barrier, as Mr. Kent said was needed, and it would not allow material to leach out. The soils around the landfill and the water are being tested regularly. He added that materials such as asphalt shingles, rebar, drywall and concrete are "what's supposed to be in there."

Asked when the capping was going to be finished, Mr. Everton said, "That's kind of the million dollar question. But we don't anticipate it going on any longer. I think we're looking at probably 14 months or less, at the current rates that we're taking in right now" bringing in the COMM-97 fill. The actual capping will take another year, so it would be done in 2026.

Ms. McKinnon rose to comment on the discrepancies in what residents were hearing "that need to be investigated." Are there one battery, six batteries or hundreds of batteries? She also commented that the gravel operation involves blasting, which can disrupt water flows, the water table and aquifer, and completely change calculations. She stated that the past permits for the old landfill say that it contains ABC materials--asphalt, brick and concrete--not C & D materials only. She added that things like the wheel wash and road paving only happened after residents had brought complaints to the town Boards. The town should have been following up and checking, and if there was non-compliance, there should have been penalties.

Mr. Everton concluded the discussion by saying that both groundwater and wells are being tested and no contaminants, from batteries or anything else, have been found in the water.

For previous Courier coverage of the landfill capping, see:

"Residents Raise More Questions in Continued Debate About W.L. French Landfill Capping" in the March 28-April 4, 2024 edition of the Winchendon Courier

"Citizens Pack BOS Meeting in Beals Auditorium Looking for Answers about W.L. French Landfill Capping on River Street" in the February 29-March 7, 2024 edition of the Winchendon Courier

Citizens Crowd Continued ZBA Hearing on Gravel Pit Permit at 580 River Street

Board Renews Special Permit for Gravel Quarry for 10 Years with New Conditions

by Inanna Arthen
On Wednesday, April 17, the Zoning Board of Appeals resumed the hearing continued from their meeting on Wednesday, March 20 at the Old Murdock Senior Center, to consider "the application for a Special Permit Renewal Application submitted by the applicant Civil & Environmental Consultants, Inc. for property located at River Street, owned by 580 River Street, LLC. Also known as Assessors Map 4, Parcels 61, 108, 109 and Map 4C Parcel 2 Winchendon, MA 01475. Applicant is seeking a Special Permit Renewal and Modification to the existing special permit to renew the existing permit to continue the pre-existing non-conforming earth removal operation. Also request for increase of allowable hauling vehicle trips per day from 64 to 75." Many citizens attended the meeting to voice concerns about the impact of the ongoing operation on the neighborhood, the environment and the town's quality of life.

The "earth removal operation" is a stone, gravel and sand quarry, or pit, that has been in operation since at least 1958 and possibly before the 1930s, and involves excavating, and sometimes blasting, natural material from the ground, loading it into trucks and transporting it away from the site. The operation is non-conforming because it existed before the current Zoning Bylaws were established in 1958.

A 39-page document including the history of the operation may be downloaded or read at https://www.townofwinchendon.com/sites/g/files/vyhlif8401/f/events/306-000_special_earth_permit_renewal_application_0.pdf.

Gravel operations are given an entire dedicated section of the Zoning Bylaws, and do not appear in the general table of uses for the various districts. The relevant Zoning Bylaw is "Article 10, Soil, Vegetation, Rock and Gravel Removal" (begins on page 93) and may be read at https://www.townofwinchendon.com/sites/g/files/vyhlif8401/f/pages/fall_2019_accepted_changes.pdf. Section 10.2.5 states, "Any earth removal over 19 yards for the sole purpose of commercial processing and/or sale may only be done in an Industrial Zone." The parcels in question are mostly zoned R80-Rural Residential with some overlap into R40-Suburban Residential (which is determined by distance from River Road, not lot lines).

Although the property is recorded as legally owned by "580 River Street LLC" and the permit application is made by Civil & Environmental Consultants Inc, these are entities belonging to or contracted by W.L. French Excavating Corporation, based in North Billerica, MA, which owns the parcels, is carrying out all operations currently active on the parcels, and is collecting all net profits which may result from any of the activities.

As the ZBA hearing resumed, Jarrett Everton, Director of Environmental Services for W.L. French, rose to give "a couple of updates," stating that the drive has been paved past the wheel wash, a second wheel wash has been installed as a backup, tree restoration in the quarry area is complete and property boundaries have been surveyed and marked with stakes. He added that a small area that wasn't marked has been rectified, and the abuttors are "on board with everything, no issues." He added that a dust mitigation plan has been implemented, including a wind speed monitor and watering down the site if it gets windy. A berm about 20 feet high has been built between the quarry and the residential area.

There was some discussion about a question raised by citizens as to whether the Special Permit granted to Mabardy (DBA Winchendon LLC) applied to a new owner. The Special Permit, being a limitation on use, seems to attach to the property. In the Mortgage filed with the Worcester County Registry of Deeds, documenting the sale of the parcels to 580 River Street, LLC by Charles J. Mabardy and Joseph Mabardy, Jr., for the sum of $1,500,000, Section 2.4, "Operation of Property", subsection (a) states, "The Mortgagor [i.e. 580 River Street, LLC, i.e. W.L. French] will not permit the Property to be used for any unlawful or improper purpose, will at all times comply with all state and local laws, ordinances and regulations, and the provisions of any Lease, easement or other agreement affecting all or any part of the Property, and will obtain and maintain all governmental or other approvals relating to the Mortgagor the Property or the Use thereof, including without limitation, any applicable zoning or building codes or regulations..."

Asked how long the gravel operation would continue, Mr. Everton said, "I think we'd be looking at another ten year extension" of the permit, which would take the gravel operation up to the year 2034. If the maximum number of trucks per day is increased, the quarry will be closed sooner. This is not a daily average, Mr. Everton said, but for "peak days" when the materials are in high demand. Production, and related blasting, is variable.

The situation is complicated because the gravel quarry operation is separate from the landfill capping operation--but the two operations are sharing the same trucks. Trucks come in with COMM-97 fill for the landfill cap, empty their loads and then some of them--10 to 20 loads a day currently, Mr. Everton said--fill up with quarried material and take that away. The operations also share access roads, and trucks track material out no matter what they're carrying when they leave. W.L. French wants to increase the number of trucks to expedite the capping portion of their use, then the number can go down just for the gravel quarry use.

Planning and Land Use Coordinator Nicole Roberts said the Board can go back to the Special Permit conditions and add further safeguards. They could integrate the wheel wash into the gravel operation. They can add an abandonment restoration plan, saying that the owners must come back before the ZBA and Conservation Commission when they're done quarrying with a mutually agreed-upon plan to restore the site. The ZBA will reserve the right to call the owners back should there be formal written complaints made to the ZBA about the operation. And they could increase the bond, which currently is $300,000, to cover maintenance of the road for the duration of the operation. They could set the permit for 10 years with a five year "check-in", and specify the dust mitigation and wheel wash staying in place for the quarry after the capping is done.

Mr. Everton stated that "we don't really have a restoration plan in place yet, we've thrown around a couple of ideas." They might develop the land for residential, or put in a solar installation. But it was too early to decide on anything. They would continue doing extra street sweeping as residents had requested.

The Board opened the floor to citizen comments.

Resident Marie McKinnon rose to question the increase in trucks, pointing out that the original Special Permit said it would not be renewed if the operation was detrimental to the neighborhood. The truck traffic on the road already makes walking hazardous and has required school bus stops to be changed. Going from 64 to 75 trucks a day will make this worse. The road already had the town transfer station, water treatment plant and sewer treatment plant.

The Board and Mr. Everton continued to explain that the capping operation and the quarrying operation are separate, and the Special Permit renewal is only for the quarrying operation. Ms. McKinnon asked if the company had records of how many trucks of quarry material were hauled out, and Mr. Everton said they don't have to submit those reports to the public because it's a private business operation.

Resident Frank McKinnon rose to ask if there would be more traffic to the quarry if they were selling their sand and gravel locally. Mr. Everton said the permit only allows their own company trucks on the property--random people can't just come in for a load of sand. Trucks are also not allowed to line up on River Street or Hale Street waiting to enter the site. Ms. Roberts added that there was an emergency safeguard for the town, whereby if the town had an emergency--such as a break in a dam--and needed gravel fast, the town would be able to get it from the site.

Resident Jody Mendoza rose to ask about the Zoning Bylaw (linked above), saying that the permit renewal should cover requirements in the Bylaw, such as specifying the five-acre parcel they were working on. Ms. Roberts and Board Chair Cynthia Carvill stated that the Bylaw doesn't cover a pre-existing non-conforming use. Ms. Mendoza continued, "I find a lot of this is really just open for them to interpret, where they're going to be doing things. And my concern is I have heard the terrible stories from abutters, from neighbors...I think that in the interest of transparency, that the abutters should know which parcel, as he stated earlier this can be this is 145 acres more or less, know which portions of it, excluding the capping site...I would like them to submit what they're planning."

Ms. Mendoza stated that the ZBA should review the permit annually or more often as the Bylaw specifies. "I think part of what is deeply upsetting to all of us is that they had been submitting complaints but the proper procedures were not followed by the people who they could submit the complaints to, so they never reached the Zoning Board. So everybody has been upset. Everybody was disgruntled. They've been complaining, they've been coming down. People with disabilities coming to Town Hall complaining, but it never made it to you." The company is benefitting from the operation, while residents worry about their children being hit by trucks and have to deal with dust. "There's a lot of things that haven't gone according to how they had promised," Ms. Mendoza said. "I'm asking the Board to please impose some conditions. We have a whole list of things."

There was considerable discussion on the validity of the Special Permit itself. The Board and Ms. Roberts continued to explain that the Special Permit superceded the terms in the Zoning Bylaws because the operation existed first.

There was much discussion of the number of trucks, the number of round trips (75 trucks per day is 150 trips on the road), and the issue of trucks lined up on Rte 140 waiting to get into the site, as reported by resident David Watkins. There was also much discussion of the history of non-compliance in the operations at the site, and the lack of follow-up and enforcement by the town.

Members of the ZBA said that the Board had never received a formal complaint in writing about the River Street operations until February of this year, when the Special Permit came up for renewal.

The discussion lasted for nearly two and half hours. Finally the Board voted to close the hearing. Ms. Roberts read the conditions to be added to the renewed Special Permit. "I have, they're going to submit their dust mitigation plan to us. Their hours of operation are going to be 7 am to 3:30 pm Monday through Friday. They are going to maintain that 100 foot buffer. In the event that any stakes get pulled out of the ground or disturbed, they will redo the survey by a licensed surveyor. Restoration plan, we're going to renew it for ten years and then come back on or before five years to present us with a restoration plan...now that that driveway is paved, there'll be a different evaluation done as far as the dust goes, if 300 feet of pavement does in fact, mitigate the dust or if you have to sweep the street further away all the way to the intersection of Main and River past the last house on River Street."

The wheel wash would remain in place, although it might not be needed. "Part of the ZBA stipulations is in fact, if something's not working, or if something is going awry, or they're not following conditions, the ZBA reserves the right to come back in and to bring French back in for whatever concern or whatever, if they get concerns from residents or what have you for anything, that they're not abiding by in their permit."

Ms. Roberts continued the conditions with, "They have to have the bond remain in place. The DPW has the right to raise the bond amount if they see fit, [based on] conditions with pavement, with life in general and the expenses. They have to abide by all state, federal and local rules and regulations. Always obtaining their permits."

The question of trucks idling and waiting on River Street or other roads was mentioned. Mr. Everton put in, "the reason that we were trying to avoid having them idle right outside of the quarry is so it doesn't annoy the neighbors in the morning. A lot of these trucks are getting loaded at 5:00 or 6:00 in Boston or surrounding areas. So they're getting on their way out here a little earlier. So if there's another staging spot that works better, we're all for it. But we thought 140 is a state highway so that would be okay, but if there's a better spot for it then we're okay with that. We're trying not to have them stage in front of people's houses."

Nicole added to the conditions, "no idling around River Street or any residential street in Winchendon, that makes sense. And then Jody will go revisit the conditions in one year from today's date, just to make sure French is abiding by all the rules and regulations."

Added to the list were, "not more than 75 trucks per day entering the property known as 580 River Street LLC owned by W.L. French," and "if the business changes ownership they have to come back for the ZBA for a new special permit."

The ZBA voted to approve the renewal of the Special Permit for 10 years with the conditions stipulated.

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