Chelmsford Planning Board granted aquifer protection to warehouse site. Then they found PFAS.
CHELMSFORD — The Planning Board will potentially consider revoking permits granted to 270 Billerica Road after the town learned of undisclosed PFAS contamination at the site.
Town Counsel Paul Haverty provided answers to legal questions regarding the board’s authority to alter special permits, given the apparent omission of the contamination when the board approved those permits. Based on previous relevant rulings, Haverty concluded the board can, “with proper notice, rescind or modify a previously issued special permit based upon material misrepresentation or omission.”
“I think the board should tread carefully in making a determination as to what it wants to do with this,” Haverty said, “however, there is at least some case law out there that would be helpful if the board does want to consider a rescission or a modification.”
A licensed site professional, or LSP, reported PFAS contamination at the warehouse site via a form to the state’s Department of Environmental Protection June 2, and as part of that form, it was noted that the potentially responsible party was supposedly made aware of the contamination at that time. This was after the applicant, DH Property Holdings, purchased the property June 1.
DH Property Holdings received approval for amended special permits, which included aquifer protection, in mid-June, but “nothing was said about PFAS,” Community Development Director Evan Belansky wrote in an email to Haverty. Before the Conservation Commission, DH Property Holdings also did not disclose the contamination, which was only discovered after a commissioner inquired about monitoring wells onsite and the past contamination nearby, according to a timeline of events the board provided.
Haverty confirmed the property owner is obligated to disclose PFAS contamination, “if they’re aware of it,” to the state, but there doesn’t seem to be a blanket requirement to similarly report to the Planning Board.
While the contamination at 270 Billerica Road is the current concern, Clerk Michael Raisbeck suggested the board always investigate possible PFAS for future projects.
“If we simply ask for it, we’ll be a little bit farther ahead,” Raisbeck said. “This time, we didn’t know to ask.”
Board member John Sousa suggested that, without knowing of the contamination, the permits may not have received his support. Associate member Joel Luna agreed, stating, “there are potentially significant differences in how this project could have turned out based on this information.”
The property owner allegedly required the LSP to file for downgradient property status, meaning the contamination originated from another location and ended up there, Luna said. That means the source would need to conduct remediation, which could be a long process.
Now, the board should be concerned with the extent of the soil contamination — as there are seven observation wells where soil samples were collected — as well as how building will later impact remediation, Luna said.
“For example, if we put a building on a footprint and then afterwards find out that the soil underneath that footprint is contaminated, how effectively can you treat that soil, because it’s got a building on top of it?” Luna said.
Moving forward, Haverty advised members to review the aquifer protection district bylaw and the information now obtained and pertinent to the permits in order to possibly move toward a public hearing. The board would need to hold a public hearing before rescinding the permit, should they chose to do so, Haverty said.
For Luna, there is a “strong motivation” to revoke the permit, as he feels there should be a deterrent for, seemingly, withholding the PFAS contamination.
Belansky said the Conservation Commission is doing peer reviews, and he’s engaged Chelmsford Water District Superintendent Andrew Reid to gather stakeholders — including the town’s three water districts, the Department of Public Works, Planning Board and Conservation Commission members and town counsel — sometime next week. Luna and member Chris Lavallee were chosen to represent the Planning Board.
Because they approved the plans, board member Annita Tanini said the PFAS could spread into the groundwater, which could put residents in harm.
“It is our obligation to protect the citizens of this town, because quite frankly, I don’t want to be sued,” Tanini said. “That’s what I’ve got a concern about.”
Most board members expressed that the issue does not appear to be a slight oversight on the applicant’s behalf, but those representing DH Property Holdings objected to that notion.
Douglas Deschenes, an attorney representing the applicant, called out Luna by name at the start of his input, adding that no one on the project’s development team knew about the contamination before they applied for the permits.
“First of all, for the record, I have to state that I take supreme exception to Mr. Luna publicly accusing my client of knowingly and purposely withholding information from that board, from your board or any other board for that matter,” Deschenes said. “I don’t know that that has been determined to be a fact, although clearly Mr. Luna has come to that conclusion.”
DH Property Holdings made “all required filings,” Deschenes said, and though they’re “considered the bad guy here,” there is no evidence to indicate the PFAS came from their site. In other words, they are victims “through no fault of our own,” he said.
Since the PFAS was uncovered, Deschenes said the applicant is working with the Conservation Commission and the DEP to both address the contaminant’s impact and possibly construct a mediation plan. He feels, however, that the “people pushing this issue” intend to “delay” the project, he said.
“My clients are doing everything possible and providing every possible answer and piece of information that we’ve been asked,” Deschenes said, “including the voluminous requests from the Lunas.”
In response, Luna said the potentially responsible party — identified as the applicant — signed off on the form containing the PFAS levels, meaning it remains “reasonable to assume” the owner was aware of the contamination prior to the amended permit. By looking into the PFAS and the reporting timeline, Luna said he is doing his “due diligence,” not intentionally delaying. Luna also specified it was just his wife, Ruth Luna, who Deschenes was referring to.
After further discussion, the board agreed to meet with the water districts next week, where those stakeholders can ask questions and later consider escalating to a public hearing.
Originally published at https://www.lowellsun.com on August 25, 2023.
