EagleTribune.com, North Andover, MA

January 13, 2014

Water customers, taxpayers on hook for $1.1M

Berberian: Costs mount up due to toxic sludge dumping fight in Andover

By Bill Kirk

---- — ANDOVER — The three-year fight between the town and a resident of Bancroft Road over the dumping of toxic sludge into wetlands on his property may be over, but it is the customers of the town’s water system - and the taxpayers - who will be footing the bill.

Between legal fees, engineering expenses and a $450,000 payout to James Berberian of 2-4 Bancroft Road, the town will have spent $1.1 million since 2011 on the case.

Town officials remain mum on the controversy, and neither Berberian nor his lawyer could be reached for comment.

The settlement, and town expenses, stem from a case that started in November 2010, when Berberian saw dark, mucky water flowing out of a drain pipe and into a wetland at the corner of his property.

He videotaped it and found that the water was coming from water department employees who were draining an underground water storage tank near the Bancroft School. The muck that ended up flowing into the wetland was from sludge that had accumulated on the bottom of the 6 million-gallon tank over the years.

Later, it was determined that the sludge contained heavy metals, including arsenic. When Berberian asked the town about the spill, it was only partially cleaned up, he said. As a result, he sued in U.S. District Court under the federal Clean Water Act to have the rest of the wetland cleaned up.

On Dec. 26, the town and Berberian signed an agreement reached after years of negotiations, depositions, executive session meetings and even a Fox-25 TV news report. The full agreement was released to The Eagle-Tribune this week.

While the agreement between Berberian and the town appears to be closed, it still needs approval from the U.S. District Court judge in the case and also needs to be approved by the EPA.

Tom Urbelis, general counsel for Andover, said he did not know when the court or the EPA would rule on the agreement.

As it stands, the agreement calls for the town of Andover to pay Berberian $450,000 while Pennoni Associates, an engineering firm that did work for the town, is scheduled to pay him an additional $50,000, for a total of $500,000.

Town Manager Reginald ‘Buzz’ Stapczynski said water ratepayers are footing the bill for the $450,000 settlement. He said it would be coming out of the water reserve, or surplus account in the water department. There is currently $2.9 million in the water reserve account, which is generally used for infrastructure upgrades, he said.

But that’s not the only cost to water ratepayers related to the case.

According to a breakdown of town costs provided by Stapczynski as the result of a Freedom of Information request made by The Eagle-Tribune in November, the Department of Public Works spent $322,065 on the case from 2011 to 2014. The DPW spent about $6,000 in 2011, $88,000 in 2012, $191,000 in 2013 and $37,000 this year. Each year, Stapczynski explained, those costs were drawn from the water surplus account.

Meanwhile, taxpayers in town have paid for the legal costs incurred as a result of the case, which comes to about $336,500 over a three-year period.

The town paid its regular law firm, Urbelis and Fieldsteel, about $116,000 over the course of three years and paid outside counsel, Sherin & Lodgen, $220,000 from 2012 to 2014.

Stapczynski said the money for legal fees each year came out of the legal department budget, which generally runs around $450,000 a year.

Selectman Dan Kowalski said he thinks all of the costs should be paid for out of the water department.

“Other funds have been expended outside of water to pay legal fees and I think the board needs to discuss and determine if fees that have already been paid should be refunded from water reserves,” he said. “If we are looking for the water department to be a self-sufficient fund, you’d expect all expenses associated with water funds to come out that.”

Currently, Andover residents are charged about $3 per 100 cubic feet of water used, with the average annual water bill coming in at less than $360. Andover’s water rate is among the lowest in the state.