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This is the last in a three-part series on how an asphalt plant was approved for the northeast corner of Westford. Find part one here; Find part two, here.
Within two years of arriving in town in 2015, Jeffrey Stephens would become the town’s health director, landing squarely in the middle of a bitter controversy, unlike any other in recent town history. Westford was embroiled in an asphalt plant debate that had divided officials and residents. Town officials had ended the eight-year-long slugfest with Newport Materials, LLC, with an $8.5 million settlement but much to the displeasure of a vast number of the town’s 22,000 residents..
The town held Newport to a variety of specific terms and restrictions, and in return, Newport finally secured the critical permit needed to construct an asphalt plant at 540 Groton Road property. But the build up to this outcome had been so acrimonious that the town’s residents lost confidence in the decision-making of the Board of Selectmen. As events continued to pick up speed, the baton of government authority was passed to the Board of Health, and now Stephens was charged with the responsibility.
Legal Action
A group of Westford and Chelmsford citizens filed an appeal to the agreement in late November; then, the Chelmsford Board of Selectmen filed an appeal of its own the following month. Both parties argued that the Board of Selectmen and the Planning Board violated the Open Meeting Law. State Assistant Attorney General Jonathan Sclarsic detailed the argument: the residents and the Chelmsford selectmen alleged that “the Boards deliberated outside of a noticed meeting to agree to participate in a mediation with Newport…the Boards conducted the mediation…outside of a noticed meeting…the boards failed to identify in meeting notices that they were discussing mediation in executive session…and…the Boards improperly discussed mediation in executive session.” Sclarsic released a letter dated March 1 in which he disagreed with all four points, finding the Boards’ conduct not in violation of the open meeting law. The decision was a loss for opponents of the asphalt plant.
Confusion Over Soil Importation and Storage
The issue of soil storage at 540 Groton Road had been discussed previously, but in early March, it gained a sudden special prominence. After months of rumbling and discussion, the Board of Health filed a cease and desist order against Newport Materials on March 7. Attorney Orestes G. Brown, representing the BOH, told Newport to stop importing and storing soil at 540 Groton Road immediately. In the order, Brown referred to the soil as “Special Waste,” a phrase bearing legal connotations under Chapter 61 of the Town of Westford General Bylaw. Orestes Brown, when reached by phone, declined to comment on any matters regarding the Board of Health or the ongoing negotiations with Newport Materials. When asked for comment regarding the order, as well as the Board of Health’s perspective on the litigation process as a whole, Board of Health Chairman Zac Cataldo was likewise reticent.
“At this time I don’t believe it would be in the town’s best interests for me to discuss anything related to 540 Groton Road or Newport beyond what has been discussed publicly at Board of Health meetings,” he said in an email.
In an interview, Stephens said that the order was issued because, at the time, the Board of Health’s attorney felt that Newport may not have been complying with all Department of Public Health regulations. He specifically cited the issue of whether to classify the soil as hazardous materials.
On March 13, the Board of Health got a surprise when Newport Attorney Robin Main of Boston-based Hinckley Allen Boston, showed up unannounced to a meeting. She claimed that the board members were not empowered to alter the terms of the asphalt plant agreement and that they didn’t understand the town’s own laws, insofar as they applied in the context of the storage of soil. Furthermore, Main threatened that Newport would sue the town government at large.
Staying Mum
For a period of time this spring, both Newport and the Board of Health were not especially vocal on the cease and desist order. Several officials declined to comment on the matter, limiting public insight. There was some legal back-and-forth between the town government and Newport Materials, but it was limited.
Newport’s Owner Speaks Out
On June 13, Newport owner Richard DeFelice of Nashua had reached the end of his rope regarding the Board’s activities. He appeared in person at a selectmen’s meeting, delivering scathing criticism of the Westford government.
“You should be ashamed of yourselves for not acting on that permit,” DeFelice said.
DeFelice called the cease and desist order “fraudulent,” and said all he wanted was to be “[treated] like any other citizen in this town” asking for a permit. The town officials explained that the order was filed over concerns regarding the safety and legal status of the storage of the soil which Newport was importing from Cambridge construction sites as part of the state’s Reclamation Soil Project. It became clear that a problematic situation had arisen: DeFelice was ignoring the order. Town officials said that until Newport filed an official, legal response to the order, and until the DEP’s investigation concluded, they could not proceed with the permit application process. The June 13 meeting ultimately accomplished little in the way of legal progress.
At this time, the DEP was “in the midst of an investigation of soil being imported to 540 Groton Road,” according to Stephens. The DEP was conducting the investigation separate from the Westford Health Department, so Stephens had to request more information in an email he sent to Eric Worrall, the Acting Regional Director of the DEP’s Northeast Region.
“My response that I got back,” said Stephens, “…was that he said, ‘the investigation has nothing to do with the asphalt-plant. It’s a separate piece.’”
The Board Issues a Permit
Once it was clear that the DEP investigation was unrelated to the asphalt plant, board members, on July 12, voted to issue Newport a Hazardous Materials Storage Permit. The decision was made after hearing from Anne Marie Desmarais, Licensed Service Professional, representing a third-party company hired by the town to review the 540 Groton Road facility and Newport’s permit application. Desmarais began her review by advising the board that they didn’t have the grounds to deny the permit, based on her conclusions. The review included her recommendations for several conditions which the Board could add to the permit in the interest of safety. Ultimately, the Board of Health chose to issue the Hazardous Materials Storage permit to Newport, on the following conditions:
- Two pages of detailed, finalized construction plans be submitted to the Westford Health Department along with Newport’s new permit application.
- A hydrogen sulfide monitoring device be installed to measure the hydrogen sulfide emissions of the asphalt plant, “recalibrated annually or at the manufacturer’s recommendation, with a certification to be filed with the Westford Health Department.”
- Newport conduct on-site ground vibration monitoring “at the tanks and containment areas whenever there is blasting at any of the local quarries,” with that data submitted to the Health Department on a quarterly basis.
- All fire fighting products at the facility be free of perfluorooctanoic acid and perfluorooctanesulfonic acid (chemicals used in older fire fighting products now believed to be harmful to the environment, commonly abbreviated as PFOA/PFOS), and that “certification is to be provided to the Westford Health Department, every time the Fire Foam Truck on-site is reloaded with foam.”
- If the exhaust system for the conveyor belt, top of the silo or bottom of the silo is ever found not to be functioning, all manufacturing shall be suspended until the problem is fixed and that the Health Department be notified immediately.
- The monthly monitoring log must contain a space for notes on the containment/dike structure; said structure must be regularly inspected for cracks or concerns, and if any are found, manufacturing must be stopped and the Health Department must be notified immediately.
- Newport must provide an annual report on their production of bituminous concrete
- The Board of Health will conduct monthly and unannounced inspections of the containment structures and storage tanks
(Source: Jeffrey Stephens, Westford Health Director)
The Board of Health is the Overseer
The Board of Health is now the supreme authority overseeing the plant. Stephens said that the storage permit is designed to protect groundwater supplies from contamination; other existing laws cover other impacts like air pollution. Now that the permit has been issued, Stephens said the board won’t actively search for issues to raise with Newport.
“At this point, the Health Department is going to be reactive to complaints,” said Stephens.
Stephens also said that he is confident that the Board of Health can address issues that directly affect and relate to the laws which the board oversees, since he understands that the public is ‘very concerned’ about the plant. If an important issue—for example, a violation of the terms of the agreement on Newport’s part—does arise, the Health Department and the Board of Health will deal with it.”
“In violations,” Stephens said, “I firmly believe in due process unless there is an imminent threat to public health and safety, in which case I firmly believe in taking immediate action.”
What’s Happening Now
Today, the asphalt plant’s immediate future, as far as it being allowed to operate, is likely despite pending litigation. Many in the town are greatly displeased with this outcome, as demonstrated by the “No Asphalt” signs still dotting front lawns around Westford — symbols from the protest period of last fall. Whether further political opposition will arise during construction is unknown. For now, however, litigation between the town and Newport seem to be nearing their end. The Board of Health will be closely watching the construction and operation of the asphalt plant.
EPILOGUE
It has now been eight years since the litigation war began between Newport Materials and the government of Westford. The conflict has drawn in citizens from across the town and in neighboring areas, and changed the political landscape of Westford.The Board of Selectmen, the Planning Board, the Board of Health—all have been challenged and changed by eight years of almost constant legal activity. People’s lives and careers have been shaped, in some ways defined, by the roles that they have played, whether it was defending the asphalt plant or fighting it. What form the issue will take in the future is unknown. All that can be done, now, is for the activists to make their voices heard, as Westford enters the newest chapter of its legal campaign, its political struggle—its Asphalt War.
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