EagleTribune.com, North Andover, MA

October 7, 2013

Talks fail on toxic sludge case in Andover

Dispute over dumping are back in court

By Bill Kirk

---- — ANDOVER — Negotiations have broken down between the town and Bancroft Road resident James Berberian over toxic sludge dumped by town workers into wetlands on his property in 2010.

A document filed last Wednesday with the U.S. District Court of Massachusetts indicates that talks have reached an impasse.

“Unfortunately, the parties have been unable to reach a settlement,” according to a joint motion signed by the town’s attorney, Thomas Gorman; Beberian’s lawyer, Joseph Wadland; and the attorney for the engineering firm Pennoni Associates, Bethany Mindich.

The motion asks the court to reopen the case, which had been suspended for five months, and begin scheduling depositions and hearings.

The breakdown comes after the three parties were extremely close to a settlement agreement in August. Following months of negotiations between the town and Berberian, the Board of Selectmen voted on Aug. 8 to accept an agreement brokered by the attorneys.

The deal carried a payment of $440,000 to Berberian, along with other provisions, including a contingency that a separate settlement agreement be forged between Berberian and Pennoni Associates, which has done work on his 2-4 Bancroft Road property.

But by late August, the negotiations broke down.

“An agreement reached between the (town and Berberian) had several contingencies before it could become final,” Wadland said in an Aug. 25 story in The Eagle-Tribune. “It appears now that one of these contingencies is unlikely to be satisfied through no fault of either party.”

Wadland declined to comment on the most recent breakdown in negotiations, which came after several closed-door meetings held by the Board of Selectmen.

“We haven’t been successful” in settling the case, Urbelis said. “The (federal court) litigation is going forward.” Mindich, the attorney for Pennoni, could not be reached for comment.

The case began in November 2010, when town workers were cleaning out a water tank near the Bancroft School. As they pumped the water out of the tank and into a truck, sludge that had accumulated on the bottom of the tank was also pumped out. That sludge spilled out of the truck and some of it ended up in a storm drain that flowed down Bancroft Street and ultimately into wetlands on Berberian’s property.

Berberian videotaped the dumping, which went on for three days as workers cleaned out the 6-million-gallon tank. When he tested the thick, black sludge that settled in the wetland, he found it was contaminated with arsenic and other heavy metals.

He sued in federal court because he claims the dumping of the muck into wetlands was a violation of the federal Clean Water Act.

Meanwhile, the town water system will be a major focus of tonight’s Board of Selectmen meeting. Selectment are scheduled to hear a report on the water system from acting Department of Public Works Director Chris Cronin as well as discuss a revised intermunicipal water agreement with the town of North Reading involving the sale of town water to that community. The meeting starts at 7 p.m. on the third floor of the Town Offices building.