Proposed Development Near Worcester Landfill Sparks Petition, November Vote
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SOUTHWEST HARBOR—At least 124 voters have asked the Southwest Harbor Select Board to put a citizen’s initiative land use ordinance change at the November election.
On Tuesday night, August 26, the Southwest Harbor Select Board decided to put the citizens’ proposed change before the voters at the November 4 election, and voted to direct the planning board to hold a public hearing about the change, 4-1.
Vice Chair Chapin McFarland opposed.
“The reason I’m opposing is just that I want legal to have a review first,” McFarland said of the language of the potential change.
The board also asked the town manager to seek legal counsel to see if the petition violates any state statute or is outside the town’s regulatory authority or is inconsistent with the town’s comprehensive plan. That passed unanimously.
If approved, the change would mean that soil testing must occur on any area within a half a mile of the Worcester landfill in Southwest Harbor, and if there are contaminants above state thresholds for remedial action, then the site must be remediated before a building permit is issued. The citizens’ movement stems from concerns about a proposed development near a local landfill that is contaminated and has caused mitigation work with the Maine Department of Environmental Protection.
“I feel like with this many signatures, we really need to pay attention to that,” said select board member Natasha Johnson.
McFarland said he thought the language should be reviewed by legal counsel before it’s put on the ballot.
“Even if it was reviewed by legal counsel, the only thing that I believe that we could use that for is to say whether or not we supported it,” Johnson said.
The amendment to the town’s land use ordinance would have to go to public hearing before the select board and planning board prior to the vote. Lee Worcester, whose company Worcester Associates owns the landfill and who has applied for a subdivision nearby, said he was leaving for certain dates in September and requested that the public hearings not be during the time he was gone. Worcester is also the planning board vice chair. The planning board is the town body that approves subdivisions like the one he is applying for.
CITIZEN’S PETITION AND POTENTIAL DEVELOPMENT IN THE AREA
The six-acre landfill site abuts that proposed 12-lot subdivision by Worcester.
That project and a need for testing worries Douglas Rissing and more than 100 other residents who have a petition requesting a change to the town’s land use ordinance specifically about soil standards.
The exact wording of the change reads, “On-site soils testing by state-certified professionals shall be required prior to issuance of any permit under this ordinance for land uses within a half mile of any site listed as an ‘uncontrolled site’ on the Maine Department of Environmental Protection's Division of Remediation Site List. Such testing shall include at minimum all known substances that have been previously identified as migrating offsite from the uncontrolled site above recommended thresholds for remedial action, whether in soil, air, or water. If soil testing finds contaminants at levels above state recommendations for remedial action, the site shall be remediated to conform with such recommendations prior to any permit being issued under this ordinance.”
WORRIES ABOUT THE LANDFILL
For fifteen years Southwest Harbor’s Rissing has been a geologist for the federal government, focusing on hazardous, toxic, and radioactive waste (HTRW) sites and geotechnical engineering, and a proposed new housing development right near the Worcester Associates landfill in Southwest Harbor has him concerned.
“I have spent my career investigating and managing contaminated sites,” Rissing said in an August 25 letter to the Southwest Harbor Select Board. “I am writing with that expertise to warn you that it is my opinion that the former Worcester Associates landfill in Southwest Harbor is not a safe location for development at this time, and pursuing construction on or near it would be reckless without first remediation of the site and implementation of land use controls.”
Similar worries to Rissing’s have led to that citizen’s petition.
There’s been a landfill in Southwest Harbor in between Long Pond and the Marshall Brook Road for almost as long as most people can remember. It began in the 1930s with an open burning dump that was used by the Civilian Conservation Corps (CCC) and then the town.
As regulations changed, the waste at the Worcester Landfill was sometimes burned, sometimes not. It included, according to former select board member Jim Vallette, sewage sludge, fiberglass from boat yards, lab waste from the Jackson Laboratory, and other municipal debris and demolition. Mount Desert and Bar Harbor both used the landfill, too, in the 1950s and 1960s.
Those uses were echoed by DEP representative Maine State Geologist Sean Dougherty as he updated the town on contaminants in the area during the August 26 select board meeting. Danielle Obery from the Maine Department of Environmental Protection also attended.
“We’re really responsible for and involved in contaminant releases to a property,” Dougherty said.
His division doesn’t cover land permitting or stormwater issues.
“But we can certainly talk about a landfill. Definitely our thing,” Dougherty said. “There is a component where there is some municipal wastewater sludge that also made its way into the landfill.”
According to Vallette, who serves on the Acadia Disposal District board, “The facility is converted to an attenuation landfill. Attenuation landfills are based on the ‘dilute and disperse’ model and have been phased out in most locations. It relies upon ‘natural processes’ to clean up pollution in soil and groundwater.”
“The department has done quite a lot of investigation here over the years,” Dougherty said. “We’ve found a few different things over the years.”
The are two primary contaminated groundwater flow paths that are carrying contaminants off the landfill property. One is the overburdened soil and flows down past Marshall Brook and is detectable in a residential water supply. The department has installed water treatment systems in those areas.
The other flow path is through the bedrock via two primary fracture sets toward other properties located along Marshall Brook.
“Marshall Brook is a primary tributary of Bass Harbor Marsh, which means that it is carrying landfill contaminants throughout the entire intertidal marsh and out into the ocean,” according to Craig Kesselheim.
Dougherty said that he couldn’t speak to the reasons why the site hadn’t been capped or why there hasn’t been more active reinforcement from the Maine DEP. The site is in the PFAS program and there are elevated forever chemicals in at least a couple of wells, he said. Methane in the area is not toxic, Dougherty said and it becomes explosive before it reaches toxic levels. Though it was in two of the residential wells, he didn’t expect to see explosive levels.
Vallette said he believed past testing had shown that it was.
Rissing wrote, “I am writing to express in the strongest possible terms why any proposal to develop on or adjacent to the former Worcester Associates landfill site is fundamentally unsafe.”
Nicholas T. Loizeaux, a seasonal resident and a licensed geologist who works in California and Washington has spent three decades as an environmental consultant.
Most of Loizeaux’ work has been about Superfunds, he wrote in an email, as well as “real estate due diligence, regulatory compliance, litigation, or Brownfields redevelopment. On behalf of select clients, I have led the efforts to assess, mitigate, close, and/or manage long-term liabilities (post-closure) for landfills ranging in size from a historic vineyard “dump pit” to a Superfund/RCRA hazardous waste landfill with an 87-acre engineered cap and post-closure monitoring (including long-term cap inspection, soil gas and groundwater monitoring). I have advised residential redevelopment clients (aka home builders) on the *same* issues at play here.”
Loizeaux is also opposed to proposed residential subdivisions next to the landfill because it hasn’t yet received closure status and entered a post-closure agreement with Maine DEP.
“Post-closure monitoring should include periodic soil vapor and groundwater sampling for constituents-of-concern between the former landfill and future proposed residential parcels,” he wrote. “Soil vapor and groundwater laboratory analysis should include (but not necessarily be limited to) volatile organic compounds (VOCs) and ‘landfill gases’ (including methane). The results of such post-closure monitoring should be made publicly available.”
He also said that “shallow-soil, soil vapor, and groundwater testing should be conducted across the proposed parcels for residential subdivision. Data from such an investigation should be incorporated into a human-health risk assessment that considers unrestricted residential use of the parcels. Based on existing, available historical data, there is reason to conclude hazardous substances (including methane above its lower explosivity limit) are likely present on, or below, the subject parcels. Absent landfill closure status and adequate residential-site investigation/characterization, approval of this proposed subdivision at this time seems ill-advised. As I have seen before, the rubber-hits-the-road when it comes to institutional lending and insurance. If either are needed for a such subdivision/project, I don’t foresee them touching this one without further data and evaluation.”
WORRIES OVER A JULY 1 MEETING
There was a site visit to the site, which was not noticed.
At an early June meeting, Code Enforcement Officer John Larson said, planning board member Michael Levesque voted to hold a site visit of the subdivision, which he thought that counted as part of public notice since it would be in the meeting’s minutes.
Levesque said that part of the issue is that there was nobody recording the minutes at the site visit in July.
“We run afoul to the Freedom of Information Act and don’t take notes,” Levesque said, and questioned if that would open up the town to a lawsuit.
Maine statue states, “Unless otherwise provided by law, a record of each public proceeding for which notice is required under section 406 must be made within a reasonable period of time after the proceeding and must be open to public inspection. At a minimum, the record must include: A. The date, time and place of the public proceeding; B. The members of the body holding the public proceeding recorded as either present or absent; and C. All motions and votes taken, by individual member, if there is a roll call.”
However, Larson said of that site visit, “There wasn’t a meeting, you didn’t have a quorum.”
Planning board member John Williams told the select board that he’s been on the board for 12 years and they’d been on numerous site walks.
“It’s safe to say this was a very challenging site walk,” he said of the subdivision’s location and added that not every member of the planning board could have gone through it. He also stressed, “It wasn’t a meeting. We didn’t have a quorum.”
According to Vallette, “Some members of the planning board had visited the site on July 1, but that was not advertised. I pointed this out at last week's planning board meeting. The board paused a public hearing on the application and scheduled the new site visit.”
Per Maine law, public meetings of town boards, task forces, and committees have to be advertised for them to be legal.
“There was no meeting. There was no secret agenda,” Williams said because a quorum of members did not attend.
“The Maine Freedom of Access Act (‘FOAA’) grants the people of this state a broad right of access to public records while protecting legitimate governmental interests and the privacy rights of individual citizens. The act also ensures the accountability of the government to the citizens of the state by requiring public access to the meetings of public bodies. Transparency and open decision-making are fundamental principles of the Maine Freedom of Access Act, and they are essential to ensuring continued trust and confidence in our government,” according to the Maine FOAA website.
Worcester had also been scheduled to be before the select board to ask for the dedication of the Trundy Farm Subdivision Road to the site, with the town creating that public road. That was taken off the agenda early on in the meeting.
Next Tuesday, Sept. 2, there will be a site visit by the planning board to the proposed Trundy subdivision.
Select board member Carolyn Ball said the town might need to put on a future agenda item the Freedom of Information Access Act and town’s code of ethics.
REMEDIATION MONEY
There is also the question of remediation for the site and cost.
“For more than four decades, studies by the U.S. Geological Survey, the National Park Service, and the Maine Department of Environmental Protection have documented contamination of Marshall Brook and residential wells. Volatile organic compounds such as benzene, carbon tetrachloride, and chloroform have been detected repeatedly in nearby homes. More recently, PFAS—so-called forever chemicals’—were confirmed in monitoring wells below the landfill at levels above EPA health advisory limits. These contaminants do not disappear; they migrate slowly but relentlessly, ensuring that the toxic plume beneath this landfill will threaten our community for decades to come,” Rissing wrote the select board.
To clean it up or cap it costs money.
The Acadia Disposal District Chair Tony Smith is working with both Representative Jared Golden (D-Maine) and Senator Angus King (I-Maine) to try to transfer $350,000 of the disposal districts funds into seed money to help fund a remediation plan for the Worcester Associates landfill and the area around it. The money was originally designated for a hazardous waste treatment plant.
HISTORY OF THE SITE
By the late 1970s and early 1980s, concerns about Marshall Brook’s health were gathering a bit of traction at Acadia National Park and the town’s conservation commission. The dissolved oxygen had decreased. There was more ammonia that was not ionized. Nitrates, heavy metals, and other contaminations were found in a U.S. Geological Survey. By 1982, Worcester Associates had hired an engineering firm. The firm installed ground water wells. It built a drainage ditch. The town also put in off-site monitoring wells.
“The landfill was not licensed because it was grandfathered (established prior to Oct. 3, 1973),” according to a 2006 internal email by Karen Knuuti of the Maine Department of Environmental Protection (DEP). “It was regulated in that it needed to comply with the operating requirements in the solid waste management regulations. The 1989 solid waste regulations required grandfathered landfills to be licensed by January 1, 1992 in order to continue to operate.”
Then in 1978, the town applied to dispose of municipal sewage treatment plant sludge, which was then mixed with regular trash.
For years the water was monitored, but that stopped in 1991. Between that time and 2002, the EPA proposed fines and expressed displeasure and concern about S.W. Cole’s plans and monitoring, particularly concerning residential wells. By 2006, S.W. Cole created a 33-page report where the company wrote, “We found no evidence that the landfill is impacting the residential wells.”
A DEP geologist, Dick Behr, found the opposite, writing in 2008, “I find S.W. Cole’s interpretations and conclusions are fundamentally flawed and are not supported by the data.”
By 2016 the DEP designated the site with the label “Uncontrolled hazardous substance site.”
In late December 2016, PFOA and PFOS were above the health advisory levels for three monitoring wells that existed below the landfill.
By the early 2020s, there is a draft consent order about the landfill and a site closure plan that includes bringing the public water up through the area for residents.
According to Vallette, “The closest lots are a few hundred feet from seepage points and a methane gas plume.
“The landfill was never lined, nor properly closed. It was used for dumping more than 100,000 tons of mixed waste—MSW, sewage sludge, fiberglass from the boat industry, medical waste from the Jax Lab, ash from old burn pits—until it closed in 1996. Despite four decades of prodding (but no apparent enforcement) from DEP and EPA, it remains un-remeditated. It's the only sewage sludge landfill in Maine that is in the state's uncontrolled sites program.”
“Beyond the contamination risks, the site itself is geotechnically unstable. The buried waste continues to decompose unevenly, producing methane, carbon dioxide, and other landfill gases that migrate laterally and vertically. Past engineering evaluations have already determined that the soil cover does not meet closure standards and cannot prevent gas escape or differential settlement of waste,” Rissing wrote. “In 2016, Maine DEP officially designated the Worcester landfill an Uncontrolled Hazardous Substance Site under state law. The department’s own finding is unambiguous: ‘Sampling in the vicinity of the Worcester Associates Landfill has shown the local groundwater to contain landfill related contaminants. The groundwater is contaminated with VOCs including benzene, toluene, xylene, diethyl ether, tetrahydrofuran and carbon tetrachloride…. In addition, PFAS compounds are present in groundwater downgradient of the landfill, including PFOA and PFOS. The Worcester Associates Landfill is clearly having an adverse impact on local groundwater quality. This will continue into the foreseeable future.’ By statute, such sites are considered a hazard to public health, welfare, and the environment. Attempting to build here would not only endanger residents, it would expose the town and private developers to liability for cleanup, remediation, and damages.”
In his letter, Rissing asked the board members to remediate and close the landfill and permanently cap it as well as continue to monitor it.
“In closing, I urge you to reject any development proposals for this site. The geologic, environmental, and legal evidence all point to one conclusion: building on this site would be reckless. The city of Southwest Harbor must instead pursue a path of closure and remediation, ensuring that this long standing hazard is finally contained,” Rissing wrote.
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