TOWN OF MASHPEE
BOARD OF HEALTH – PUBLIC SESSION
Minutes of the Meeting of Wednesday, January 2, 2008
Board Members Present; Absent: Also Present:
Lucy Burton, Chairman Jocelyn McCree Glen Harrington, Health Agent
Glenn Santos, Vice Chairman
Chairman Lucy Burton called the meeting to order at 7:00 PM.
APPOINTMENTS
7:15 PM Masa Oyamada – Papermoon Restaurant
Ms. Junko Akiyoshi and Mr. Masa Oyamada from the Papermoon Restaurant introduced themselves to the Board, stating that they had come to dispute the fines levied by the BOH against Papermoon Restaurant.
Glen Harrington stated that the BOH, at their meeting on Nov. 7, 2007, extended for the third time the deadline for Papermoon to deliver to the Board the Serv Safe Certifications for all food handlers and wait staff at Papermoon, and voted to impose a fine of $100.00 per business day, commencing on 12/03/07, for failure to comply with the BOH directive. Not until December 20, 2007, were all required Serv Safe Certificates delivered to the BOH. The resulting fines amount to $1400.00.
Ms. Akiyoshi proceeded to enumerate the difficulties faced by Papermoon to meet the deadlines imposed by the BOH. The restaurant has students working for them as well as other part time staff with scheduling difficulties, making it impossible for them to comply with attendance at available Serv Safe training sessions. Some of their employees speak only Japanese and it is difficult to find training sessions with Japanese-speaking instructors. In addition, 15 days are required by the National Restaurant Association after certification training completion for the certificates to be delivered, which made it impossible for Papermoon to meet the BOH-imposed Nov. 30th deadline.
Ms. Lauren Chevrier, an English-speaking friend of Ms. Akiyoshi, introduced herself to the Board, and stated that the Papermoon had tried its best to comply with the BOH Serv Safe certification requirements, but the obstacles enumerated by Ms. Akiyoshi above did not permit the restaurant to meet the Nov. 30th BOH deadline.
Lucy Burton made a motion that the Papermoon be fined $1000.00, payable within 10 business days, starting on January 3, 2008, and ending on January 16, 2008. Glenn Santos seconded the motion. All approved.
7:30 PM - John’s Pond Center Realty Trust – “Show Cause Hearing”
Mr. Thomas Paquin, attorney for Alexander Mitrokostas, introduced himself to the Board.
Glen Harrington gave background on the case, stating that at the BOH Public Meeting on 12/05/07, the Board was informed that a real estate transaction had taken place regarding the property located at 401 Nathan Ellis Highway. The BOH regulation Part IX, section 14.00 states that at the time of transfer of title of an existing facility served by a septic system, the system shall be upgraded to achieve no greater than 10 mg per liter (MG/PL) total nitrogen concentration in the effluent.
On 10/30/07, a letter was sent to Dino Mitrokostas, Kevin Kirrane of Dunning & Kirrane, Joe Henderson of Horsley & Witten, and Scott Moles of Warwick & Associates, stating that the BOH had voted on 9/12/07 that properties over 600 gallons per day shall have their systems upgraded prior to transfer of property. The upgrade was further defined to include secondary treatment. After notification and clarification of the regulation, the property ownership was still transferred without complying, thereby violating the BOH regulation Part IX, section 14.00. A fine of $300 per day, effective upon receipt of the letter, was imposed by the BOH, together with an order to appear at the BOH meeting on 12/19/07 for a “show cause” hearing. The Show Cause hearing was delayed until the meeting tonight,
01/02/08.
Thomas Paquin distributed to the Board a timeline of events which he felt clearly indicated that there had been no violation of the BOH regulation. In September of 2007 the Horsley Witten Group, retained by the Seller, and Warwick Associates, retained by the Buyer, installed a monitoring well in conformity with the BOH Regulation Part IX Section 14.5.1. On 10/09/07, groundwater samples were collected from the on-site monitoring well.
On 10/16/07 a certificate of analysis was issued by ESS Laboratory. The finding indicated that the system at 401 Nathan Ellis Highway met the BOH total nitrogen septic effluent discharge requirements stated in Regulation IX Section 14.5.1. The closing on the property took place on October 24, 2007.
Mr. Paquin stated that it is the Seller’s position that if the existing system produces effluent with a total nitrogen concentration under 10 mg per liter, it meets the standards set forth in the BOH regulation Reg. IX, Section 14. If it is the Board’s position that such a system must be upgraded to include a secondary treatment, notwithstanding that the total nitrogen concentration is under 10 mg per liter, it is Mr. Paquin’s position that that is outside the scope of the BOH regulation. Mr. Paquin stated that based on the timeline he presented, as far as the imposition of the $300 per day fine, there was no violation of the BOH regulation, and he asked that the BOH rescind the imposition of the fine.
Glen Harrington stated that he had spoken to Scott Moles of Warwick & Associates about the sampling of the well, and said that even though the sampling of the well is below the 10 MG/PL it is not the basis for an exemption or exclusion for upgrading of the property. Glenn Santos added that the BOH regulation testing requirement does not apply to the monitoring well, but applies to the effluent coming out of the system, out of the tank going into the leaching system.
Mr. Paquin stated that he would first like to address the fine. He stated that professional engineering firms had been hired by the buyer and the seller, and their test results indicated no violation of the BOH regulation. Therefore, the fine does not apply. Mr. Paquin added that he felt the BOH regulation as stated is ambiguous.
Tom Lee, with Horsley Witten, introduced himself to the Board. He stated that he had done the testing of the monitoring well according to the regulation. His opinion was that the BOH regulation should be modified to stipulate specifically that the testing be done to the effluent coming out of the tank going into the leaching system, and not the monitoring well.
Glen Harrington stated that his understanding of the intent of the regulation was that the initial testing of the effluent was to occur at the location of the effluent coming out of the tank and going into the leaching system. The long term testing requirement was to occur at the site of the monitoring well.
Glenn Santos made a motion that the BOH continue studying the interpretation and intent of the regulation as it was written, and to defer decision on the fines to the next BOH meeting on January 23, 2008. Lucy Burton seconded the motion. All approved.
7:45 PM – Carl Cavossa – Refuse Regulation – Notice of Non-Compliance
Carl Cavossa and his attorney, Augustus F. (Gus) Wagner, Jr., introduced themselves to the Board.
Glen Harrington stated that in a letter from the BOH to Mr. Cavossa dated 12/14/07, Mr. Cavossa had been informed that Catherine Laurent had informed the BOH that Mr. Cavossa was disposing of Mashpee commercial refuse at other waste facilities not approved by the Board. The letter stated further that this is in direct violation of the BOH Refuse Regulation which states that all haulers licensed by the BOH in Mashpee must transport their refuse loads to the Upper Cape Regional Transfer Station (UCRTS) or other facility approved by the BOH. On 12/05/07, the BOH voted that Cavossa was ordered to dispose of all refuse at the UCRTS, and that failure to comply would result in non-issuance of Cavossa’s 2008 Refuse Haulers permit.
Carl Cavossa stated that he does not understand the BOH regulation, stating that he has been dumping at the SEMASS facility for years, along with every other waste hauler in Mashpee. Mr. Cavossa said he skips the UCRTS and hauls garbage directly to the SEMASS waste-to-energy facility in Rochester because doing so is more efficient, saves him money, and saves the added step of switching the trash from trucks to a train. By saving himself money, Mr. Cavossa said he can charge his customers less and save them money, too.
Gus Wagner showed the Board photographs of two other haulers, Waste Management and TRT, dumping garbage at commercial facilities. Both haulers do not dump any commercial garbage, which proves that Mr. Cavossa is not the only hauler breaking the rules. Mr. Wagner also stated that Section XV of the Refuse Regulation states that there is an alternative dumping facility, SEMASS, approved by the BOH. Mr. Cavossa, from his interpretation of the regulations, felt that he had every right to dump directly at SEMASS.
Glenn Santos made a motion to close the discussion to the public. Lucy Burton seconded the motion. All approved.
Glenn Santos made a motion to indefinitely postpone this discussion until research is conducted regarding the full intent of the BOH regulation. Notice of noncompliance issued to Carl Cavossa on 12/14/07 will be rescinded pending further investigation. Lucy Burton seconded the motion. All approved.
NEW BUSINESS
1. Sign Warrants. The Board members signed the warrants.
2. Approve Public Session Minutes of 12/05/07, and Executive Session Minutes of 10/08/03, 2/26/04, and 3/11/04.
The following corrections were made to the 12/05/07 Public Session minutes:
1. Page 2, under 7:30 – Geoff Willis, paragraph 3, second line 5, change the word level to the word standard.
2. Page 2, under 7:45 PM – Horsley & Witten Group, paragraph 2, line 6, delete the word issuance.
3. Page 5, under OLD BUSINESS, 1., Finally Dino’s, first paragraph, line 8, substitute the words to a in place of the word for.
It was moved, seconded and passed by the Board to approve as corrected the minutes of the meeting of 12/05/07.
It was moved, seconded and passed by the Board to approve as submitted the minutes of the Executive Sessions dated 10/08/03, 02/26/04, and 03/11/04.
3. Request for Extension to Title V Disposal Works Construction Permit: 318 Redbrook Road.
Glen Harrington reported that in a letter dated 12/07/07 from Cape & Islands Engineering, it was explained that the 318 Redbrook Road lot was issued an Order of Conditions on 11/16/05 from the Conservation Commission, and a superseding Order of Conditions issued from DEP on 12/13/06. The abutting neighbor, Thomas Quinn, has appealed both Orders of Conditions. Cape & Islands Engineering is in the appeal process to the 12/13/06 Order of Conditions and is requesting a one-year extension on the septic permit in order to resolve the appeals issues. Glen Harrington commented that the abutter, Thomas Quinn, has some valid issues.
Lucy Burton made a motion to continue the BOH decision until further information is made available. Glenn Santos seconded the motion. All approved.
4. Request for Definitive Subdivision Plan Approval: Bayswater Development, LLC, 10 Lots
Glen Harrington stated that these are 10 lots past Tide Watch Village. One of the larger parcels goes right up to the Sound. Lot #9 is the septic system parcel for Tide Watch.
Lucy Burton made a motion to approve the Bayswater Development definitive subdivision plan for 10 lots on Shore Drive West. Glenn Santos seconded the motion. All approved.
5. Request for Variance from BOH Regulation Part IX Section 19.0 – 21 Fiddler Crab Lane
Peter McEntee, P.E., with Engineering Works, introduced himself to the Board, on behalf of Robert Labich, purchaser of the property at 21 Fiddler Crab Lane. In a letter to the BOH dated 12/27/07, Mr. McEntee requested the following variances for a Title V Septic Upgrade at 21 Fiddler Crab Lane:
1) A 5’variance, S.A.S. to slab (garage) for a 5’ setback
2) A 2’ variance to the 3’ maximum cover requirement, for 5’ of maximum cover, S.A.S. to be H-20 and vented.
3) A variance to allow that the septic system upgrade construction take place after the transfer of title.
Peter McEntee stated that the buyers have agreed to pay for the Title V Septic Upgrade construction after the closing.
Lucy Burton made a motion to approve an enforceable agreement for the buyer to complete a Title V Septic Upgrade at 21 Fiddler Crab Lane, per the plans submitted, by March 31, 2008. Glenn Santos seconded the motion. All approved.
OLD BUSINESS
1. Executive Session Minutes.
Glenn Santos stated that in the three outstanding BOH Executive Session minutes not yet approved, there is language in the minutes regarding illegal dumping. Glenn recommended that the Board proceed to approve the minutes as presented at the next BOH meeting.
DISCUSSION
1. Pave Paws/Ewing Sarcoma Cancer Study
Glen Harrington reported that the Ewing Sarcoma study has been completed, and it was found that there were no ties between Pave Paws and Sarcoma. Results of the study have been made public.
2. Regional Flu Clinic Date
Glen Harrington reported that a Mashpee flu clinic is scheduled for 1/07/08, at Christ the King Church, from 3 PM – 6 PM, with surrounding towns contributing vaccine dosages.
NEXT MEETINGS
The next BOH meetings are scheduled for Wednesday, January 23, 2008, Wednesday, February 13, 2008, and Wednesday, February 27, 2008.
As there was no further business, the meeting was adjourned at 9:40 PM.
Respectfully submitted,
Ina G. Schlobohm
Recording Secretary
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