Lenox Conservation Commission
December 5, 2013
Minutes
Town Hall
Members present: Chair Neal Carpenter, NC; Vince Ammendola, VA; Tim Flanagan, TF; Joe Strauch, JS; Dick Ferren, DF; David Lane, DL; Rose Fitzgerald Casey, RFC
Staff present: Peggy Ammendola, PA
Also present were: Bruce Winn, Jeffrey Reel, Jeff Vincent, Co-Town Manager, Selectman Channing Gibson, Mike Kulig of Berkshire Engineering, Jonathan Weinslaw & Dennis Daru of Broadway Electrical, Rich Kirby and Ann Marton of LEC Environmental
Tad Ames of Berkshire Natural Resource Council regarding the Conservation Restriction on Lenox watershed property established in 2012. Refer to Oct. 4, 2012 and December 6, 2012 Conservation Commission minutes regarding CR. Prior to the meeting Mr. Ames advised NC that he would not be able to make this meeting, but will come at a later date.
Mike Kulig of Berkshire Engineering informal meeting rescheduled from Nov. 21, 2013 to discuss the following two properties:
a)Terry Burman, 40 Brunell Map 42 Parcel 30, MA DEP File Number 198-0240 Mr. Kulig reported that the clear cut area had been planted and was recovering nicely and many trees have been planted to replace those removed. There had been minor erosion at a few sites which have been corrected and the only major problem area that remains is at the rim of the holding basin where under extreme circumstances water could flow over the top. This area will be monitored in the winter and addressed in the spring. The intention is to add another smaller detention basin south of the existing basin.
b)Ethan Berg, 101 Yokun Ave., Map 12 Parcel 2 Mr. Kulig wants to immediately repair the holding basin wall that had washed out by lining it with fabric and placing stones to see it through the winter. Next spring he will evaluate the basin and drainage requirements and return to the Commission with a plan of action for the area which will include the repair of some of the scouring done when the water broke through the wall.
NOI, Broadway Electrical Co., Inc., Willow Creek Rd., Map 14 Parcels 2 and 3-Installation of a photovoltaic solar array within the buffer zone. NOI was filed on October 4, 2013 and the hearing was originally scheduled for October 17, 2013, but applicant requested to continue to Nov. 7th. At that hearing it was the consensus of the Commissioners that sufficient information had not been provided to accurately delineate the size of the area and type of wetlands present on the landfill cap for them to make a decision. It was mutually agreed that the hearing would be continued to Nov. 21st for the applicant to have time to provide additional requested information. On November 19th, applicant requested this to be continued to December 5, 2013.
Representing LEC Environmental Consultants, Inc. was Rich Kirby, Senior Wetland Scientist, and Ann Marton, President, Director of Ecological Services; Jonathan Wienslaw, President of Broadway Electrical Co., Inc. and Dennis Daru Jr., Project Manager, also of Broadway.
Before the presentation began JS asked for clarification, stating that as he understands DEP has said that the landfill is to be repaired and remediated. This repair, he says, would eliminate or modify the wetland area and that trees and shrubs would have to be removed before the landfill could be recapped. NC responded that the Commission first must know what is there so that it can be replicated. JS concluded that he doesn’t understand how the Commission can come to any conclusion without the previously requested information.
It is important to note that this site is in the ACEC and one cannot destroy wetlands within the ACEC.
Mr. Kirby said that at the November 7th hearing, there were issues brought up by the Commission and as a result he filed a Notice of Intent Addendum dated November 27th that was received by the Commission on December 2, 2013. Included in the addendum was: Mr. Kirby’s three page letter; an updated NOI, and additional clarifying information regarding property information, Buffer Zone and resource area Impacts, “and Other Applicable Standards and Requirements including proof of abutter notification, filing fees, abutter notification and stormwater management”. Also filed and received on the same dates was a spiral binder with a cover letter to LEC, Environmental Consultants and included the following documents:
Stormwater Report
Post-Closure Use Permit Application
Correspondence Property Owners
Correspondence Regulatory History
Manufacturer’s Information Solar Panels and Mounting System
Specifications
Draft Form of Escrow Agreement
Wind and Snow Load Calculations
Geotechnical Evaluation
Broadway Renewable Strategies Operations and Maintenance Services
MEPA Certificate
Correspondence
NHESP
Division of Fisheries and Wildlife
Massachusetts Historical Commission
FIRM Map
MassDEP Post-Closure Use Permit
Mr. Wienslaw gave a brief review of the evolution of the project which he says has been ongoing for almost two years. He stated that originally it was anticipated there would be a larger array on this site as well as the abutting Peters’ property, but the town was unable to acquire the abutting property. In the beginning there was disagreement as to the presence of wetlands on the site, but in time the applicants recognized there were in fact wetlands. In the process of obtaining permits from the state, it was determined that the landfill cap was deficient and would have to be remediated before an array could be constructed. Regarding the financial aspect, Broadway must comply with requirements of MA DOER, who is responsible for the SREC program. Mr. Wienslaw said that Broadway needs to
have 50 percent of their contract committed by the end of December and the project has to be built by June 30, 2014.
NC responded that the Commission has not been a part of the almost two year process and that only one month ago was informed by DEP that problems existed with the cap on the landfill. Until the Commission received that document they were unaware of the extent of the repairs necessary and that those repairs would impact the existing wetlands, in effect removing most of them. (DEP had advised the town as far back as 1999 that the landfill cap was not up to standards and should be repaired.) NC said that the Commission’s responsibility is to protect the wetlands, and initially the applicants denied wetlands existed on this site even though there were wetland plants around the parking lot. Then there was a delineation which acknowledged three isolated wetlands. To be able to review
the notice, the square footage of the area of the actual wetlands must be known. Over a period of months, NC said, this matter has been continuing without flagging at the site and now with the winter season a site review would not be possible. The Commission knows there are wetlands, but they don’t know if they are protected or not. NC added that without information the Commission cannot approve, but it would be willing to continue to the spring. In conclusion, he defended the Commission, stating that any delays were not a result of inaction on the part of the Commission. The Commission cannot approve without additional information and it is not possible to approve by the end of December because of the winter dieback of the vegetation.
Ms. Marton said that she felt the additional data they have provided was sufficient. TF asked Ms. Marton specifically what data had been provided that was related to the purported isolated wetlands. He stated that the wetlands were not flagged, and therefore the Commission was not able to carry on a site inspection.
Ms. Marton said she could not answer TF’s question, as she had not done the field work, but deferred to Mr. Kirby who then responded that at the last hearing he had acknowledged the wetlands along the road and in the parking area and he has provided as part of the addendum, data sheets documenting the vegetative and soil conditions inside and outside of the wetlands. Ms. Marton claims that this data documents that they are not bordering.
TF asked Ms. Marton if she could show the Commission the boundary of those wetlands. She stated she could not, but because she felt they did not represent bordering vegetative wetlands, they did not need to be defined. She said that there are three indicators for wetlands and to be declared a wetland there needs to be the presence of two, but what drives it is hydrology not vegetation. She did concur that they could flag them, but they felt their data shows these areas don’t border or touch and that should be sufficient to resolve the issue under the WPA.
TF said that the Commission cannot evaluate the site until all of the wetlands are flagged followed by a site visit. He added they also need to inspect study plots, know where each of the vegetative plots were surveyed and where the soil samples originated. TF told the applicants that the Commission has asked repeatedly through at least 3 site visits and several meetings for the additional information, and still do not have it and the isolated wetlands are not depicted on the plan.
TF asked: “How can we evaluate an NOI and see whether or not it complies with the performance standards if we can’t all agree on where the wetland is? As we understand, after reading the addendum, the Post Closure Use Permit requires a lot of work across the entire footprint of the landfill. We have to determine how we are going to deal with it. We have the ACEC issue and it seems we will require a variance on the destruction of the BVW with the ACEC. As I read the Post Closure Use Permit, General Condition 8, it required submission of all of the landfill discussion as part of the NOI. We don’t have that, we don’t even have completed NOI, we don’t have resource areas delineated, we can’t inspect in the field and we don’t have any information on
how the landfill closure part of the project will impact the wetlands. How can we issue a ruling?”
Ms. Marton then asked to discuss other items separate from the boundaries of the isolated wetlands, stating this is a buffer zone project. TF said the array component may or may not be in the buffer zone, but the landfill contains buffer zone and wetlands. Ms. Marton said that Broadway Electric is committed to covering the cost for capping the portion of the landfill in the footprint of the array as it is now, and that they are also open to expanding to the larger area as that benefits the town and everyone else and work beyond for a complete capping of the landfill would have to come in for a second phase or second NOI. TF explained that the regulations do not give the Commission that latitude as the regulations require that there can only be one NOI open on a project at one time and the landfill
closure work needs to be done before the array is built and this has to be a part of one NOI, not a segmented notice as this Notice appears to be. He said that the second phase is being put before the first.
Ms. Marton and Mr. Wienslaw disagreed. They have been working closely with Dan Hall, Section Chief, Solid Waste Management of MA DEP and they are sure that Mr. Hall understands that their submission is only for the capping of the footprint associated with the smaller array. TF referred to the Post Closure Use-Permit Approval, General Conditions #8, which states “A Notice of Intent Shall be submitted to the Lenox Conservation Commission as proposed.” TF said that the work described in the closure permit covers the entire landfill; therefore the Commission needs to review an NOI that covers the entire area.
Ms. Marton said that it isn’t unusual for capping to be done in phases. Ms. Marton added that if they are unable to move forward with this phase, Broadway will not be able to get the financing.
DL said he had understood that Broadway Electrical had agreed to cap the entire landfill. Mr. Wienslaw explained that in March 2013 the size of the project would have allowed that, but over time elements beyond their control reduced the size of the project and the current proposal is to cap the area only where the array is proposed. He contends that Mr. Hall understands that Broadway is not repairing the entire landfill and that Broadway filed the NOI as advised by DEP.
There continued to be disagreement between the applicants and the Commission as to the reference in the Permitting document to “as proposed”.
RFC questioned how stable would a partial capping be. She would like to see the whole landfill capped for the stability of the project. Mr. Wienslaw said that if the town did not do anything to remediate the remaining landfill, his company would need to be indemnified. Ms. Marton explained that the sub-base is engineered to a higher degree because it is on a landfill.
TF told the applicants that they could have the option to continue if they were interested in putting together what the Commission needed. Mr. Wienslaw said that they would talk further with Mr. Hall. Ms. Marton said that she understands the Commission wants to review one permit for capping and/or solar array on the entire landfill including the expanded area beyond what is shown on the plan that is before the Commission now.
JS suggested the applicants have Mr. Hall write a letter that states that the Permit is only applying to the smaller portion. TF said that what Mr. Hall had to say would be an essential component, but the resource areas are still not depicted and the Commission needs have one NOI for the entire project.
TF added that the Commission can’t negotiate or promise what will happen at a future meeting and explained the Commission can deny their request for a lack of information, or if the applicants consented, the hearing could be continued to give them time to get more information.
NC pointed out that one state agency is issuing one permit and by following that permit, there is the violation the ACEC. It is believed that the Western DEP is trying to get further information regarding a variance from ACEC and possible other issues.
TF told the applicants that the Commission is receptive to any Notice, without judgment of the social or economic value, looking only at whether or not the Notice met the performance standards and that any project they proposed, smaller or larger, the Commission would be happy to review.
There was disagreement between the Commission and the applicants to continue until the spring. The Commission felt it is necessary to continue to the growing season, but Ms. Marton felt that such a delay would significantly hinder the project from going forth.
Discussion ensued regarding a replication plan, but without the delineation, it is not possible to determine the size to be replicated. Mr. Wienslaw said that they had proposed to the former Town Manager Greg Federspiel a replication of 20,000 square feet. He also said that they have proposed to the town to cap the entire landfill in order to increase the size of the solar array and that Mr. Hall is expecting an amendment to this project. TF stated that whatever discussion may have occurred in the past is not relevant. This is the first that the Commission has heard of any replication, and there is no reference to any replication in this NOI.
TF made a motion to request additional information from the applicant to address the concerns of the applicability of the Closure Order and the delineation of the wetlands to be accomplished during the growing season. DF seconded the motion. The Commission voted to agree 7-0.
DF made the motion that this be continued to the first meeting in June (June 5, 2014). TF seconded the motion. The Commission voted to agree 7-0.
Ms. Marton asked to continue to Dec 19th so that should the applicant have further questions or if there needs to be further dialogue they could come before the Commission. After some discussion, JS made a motion to modify the motion to continue to December 19, 2013. VA seconded the motion and the Commission voted to agree 6-1, with TF voting to oppose. (The motion to continue to June5th was not withdrawn.)
NOI, Broadway Electrical Co., Inc. 239 Crystal St., Map 8 Parcel 100-Installation of a photovoltaic solar array and conduct associated site grading, portions of which are located within the buffer zone.
Rich Kirby presented this NOI and said that on Tuesday, December 3rd there was a site visit. Some changes were proposed by the Commissioners at that site visit and the changes have been drawn in on the plan. The project was reviewed in detail. NC expressed the concern about the angle of the grade and possible erosion. Mr. Kirby said that they will hydro seed which is usually sufficient, but if there were indications that more needed to be done before the area was vegetated, erosion control mat would be used. The Commission is only approving the flags on the plan and if there are any changes to the submitted plan, the applicant would have to return to the Commission for approval.
It was noted that Ma DEP has not yet issued a file number.
DL made a motion to approve provided there are “no comments” when DEP issues the File Number and TF seconded the motion. The Commission voted to approve 7-0. (Following the hearing, Mr. Kirby sent the revised plans electronically.)
Notice of Intent, Mitch Greenwald, Trustee for property located at Martha Lane, Map 18 Parcels 46, 47, 51, 52, 57 and 58. The proposed project is the alteration of an on-site wetland buffer zone to allow for the construction of a gravel road, utilities, swale, driveways, septic and 2 single family houses. Continued from November 7th. On December 5, 2013, letter from Rob Akroyd was received by the Commission, requesting the Commission permit the withdrawal of the NOI without prejudice. This item was continued to the next meeting.
Approve minutes-November 21, 2013: DL made a motion to approve the minutes with edits. JS seconded the motion and the Commission voted to approve 7-0.
Respectfully submitted,
Peggy Ammendola
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