EagleTribune.com, North Andover, MA

August 25, 2013

Legal dispute over sludge dumping continues

By Bill Kirk

---- — ANDOVER — A tentative legal settlement reached recently between a Bancroft Road resident and the town over the dumping of hazardous material appears to be in jeopardy.

Earlier this week, James Berberian of 2-4 Bancroft Road filed an alternative proposal that he hopes will settle the matter once and for all.

The original agreement, reached two weeks ago and released by the town last week, would have given Berberian $440,000 as a settlement. But the agreement came with a number of contingencies, including a provision that Berberian also reach an agreement with Pennoni Associates, an engineering consulting firm that has done work at the site.

“An agreement reached between the (town and Berberian) had several contingencies before it could become final,” said Joseph Wadland, Berberian’s attorney. “It appears now that one of these contingencies is unlikely to be satisfied through no fault of either party.”

As a result, he said, Berberian “has made a good-faith, alternative proposal to the town to try to resolve the matter entirely. He is hopeful the Selectmen will accept his proposal.”

Town counsel Tom Urbelis said Monday he was going to “keep an eye on” the negotiations between Pennoni and Berberian.

Pennoni’s attorney, Bethany Minich of Lynnfield, did not return a phone call.

Berberian’s counter-proposal is the latest chapter in an ongoing saga dating back to November 2010, when the homeowner noticed a thick, black sludge-like material oozing from a storm-drain into a wetland on his property.

He notified the town of the situation, which investigated and found that Water Department employees cleaning a water storage tank near the Bancroft School had dumped some of the material from the bottom of the tank into a storm drain, which leads to his property.

The material was tested and found to contain a number of harmful materials, including arsenic, cadmium, lead and other heavy metals often found in sediment that settles to the bottom of water storage tanks.

A subsequent clean-up of the property by the town was deemed insufficient and Berberian sued in U.S. District Court, claiming the spill violated the federal Clean Water Act.

The state Department of Environmental Protection also investigated, recently finding that a report on the town’s cleanup efforts was insufficient. The town now has 90 days to resubmit a revised report or come up with a new plan to clean up the site.

Wadland said the recent DEP decision “brings clarity to the conversation and hopefully, also a final resolution to the parties’ dispute.”

Urbelis said Monday he thought the DEP decision related more specifically to the town but acknowledged that it was related to the court case.