The Coalition Announces Intent to Sue Town

Just when the Marion Board of Selectmen celebrated the Environmental Protection Agency’s acceptance of an alternative (and less expensive) plan to tackle ongoing wastewater discharge, the Buzzards Bay Coalition issued the Town an official notice of its intent to file a lawsuit over violations of the Massachusetts Clean Water Act (CWA).

Nine private citizens are also listed as plaintiffs on the lawsuit including one Marion resident, Laura Ryan Shachoy of 1 Water Street, two from Mattapoisett, and one from Rochester. Coalition President Mark Rasmussen of Fairhaven is also listed.

In a letter dated December 11 and addressed to the selectmen, the Massachusetts Department of Environmental Protection commissioner, and Attorney General Maura Healey, the Coalition’s attorney Margaret Stolfa from Gordon & Rees said the lawsuit is based on unpermitted groundwater discharge from the wastewater treatment plant, specifically citing the use of the three unlined sludge lagoons that the Coalition says leaches more than 10,000 gallons of sewage into the groundwater every day – an allegation that the Town of Marion has publically denied for some time.

“This unregulated discharge poses a real threat to the public’s use and enjoyment of the environment and violates the law by discharging nitrogen to the groundwater and contributing to the impairment of nearby streams, the Sippican River, Aucoot Cove, and Sippican Harbor,” wrote Stolfa.

The letter acknowledges a recent settlement between the Town and the EPA, in which the Town agreed to line one of the three lagoons and undertake an “optimization study” to analyze the future use of the two other lagoons. In the settlement, the Town will continue to use the two unlined lagoons once the first one is lined, prompting Stolfa to point out, “Nothing in that settlement establishes any requirements that the groundwater discharged from Lagoons #2 and #3 will cease and absent a groundwater discharge permit, the Town will continue to be in violation of its obligations under the CWA and Regulations.”

The Coalition urges the Town to develop a plan to stop all alleged unlawful discharges, but added in so many words that this was nothing personal – “…[Our] intent to hold Marion to the same standard as other communities fronting Buzzards Bay [we hope] will not be taken as a sign of hostility but one of legitimate concern in the public interest.”

The letter alleges that the Town has been aware of lagoon sewage discharge since at least 1995, according to the Town’s engineer CDM Smith, who allegedly confirmed this fact in Marion’s 2001 Draft Facilities Plan. Furthermore, the letter states that the Town allegedly admitted in its appeal of the current NPDES (National Pollutant Discharge Elimination Systems) permit that the lagoons leach up to 50,000 gallons per day.

The Coalition asserts that Marion’s CWA violations are causing nitrogen pollution and that Marion lacks any lawful discharge permit for the lagoons. It is seeking relief in the form of the Town applying for a groundwater discharge permit from the Massachusetts DEP, saying in the notice that the Coalition would support the Town if it pursues this course. Otherwise, “…[We] will file suit and seek all available relief, including our litigation fees and costs.”

In response, the selectmen on December 19 took Town Administrator Paul Dawson’s advice that the board should appoint Attorney Michael Leon of Nutter McClennen & Fish, the attorney who has represented the Town throughout the entire process of the NPDES permit appeal, although the Town would incur additional legal fees with Leon as opposed to sticking with town counsel on the matter.

“They (The Coalition) believe that we are in violation of the Massachusetts Clean Water Act by discharging into the groundwater,” said Dawson. “We obviously disagree.”

It is what it is, Dawson stated. “This will sort itself out in the process.”

In other matters, parting from a Marion Board of Selectmen meeting with a smile is a rare occurrence for Shea Doonan, who has been seeking an aquaculture permit in Marion for many months as abutters to his proposed oyster farm sites continuously countered his efforts.

Doonan’s application for a half-acre oyster farm permit for a spot at Mittens Flats inside Sippican Harbor has been at a standstill since he first presented the notion in December of 2016. That hearing was continued until June this year, and then to September, and then to December 19 when finally Doonan harvested the decision he had hoped for.

Doonan had nothing to add to his case when offered the opportunity, but abutter Jay Somerville of 756 Point Road took the time to reiterate his position.

“This is the last stretch of open water in Sippican Harbor,” Somerville said. Taber Academy uses it, people kayak and swim there, quahog, and sail. “Sippican Harbor is the town’s most valuable asset.… There are plenty of other locations in Marion waters outside the harbor that are far better suited [for aquaculture],” said Somerville, listing Hammetts Cove, Aucoot Cove, Wings Cove, and an area near Converse Point.

Doonan disagreed, saying that he explored those options. The water flow at Hammetts Cove is insufficient, and some of the aspects of Doonan’s proposed operation that Somerville mentioned in his criticism didn’t even apply to Doonan’s project, he said, adding that the Mittens Flats site was suggested to him because it was the best and most viable site.

Hardwick Simmons of 83 Hammetts Cove Road said there wasn’t enough space left in the harbor, and shame on the Town for not developing a separate Master Plan just for the harbor.

Whether the last of the precious space in Sippican Harbor should go towards moorings or docks, or aquaculture farms, Simmons said, “I just don’t believe there should be any more permits issued in Marion Harbor until we have a plan.” And if the highest and best use ends up being aquaculture, he added, then so be it.

Having said that, though, Simmons did offer to foot the bill of a feasibility study on worthwhile uses of the remaining space in the harbor, which shows just how much he cares about Marion Harbor, he said.

Harbormaster Isaac Perry had nothing more to add to his previous information to the selectmen, only that he thinks the harbor has been “pretty well run, and it has been for a long time,” even without any extra master plans.

“We’ve been through this process before,” said Perry. Planting Island (one of the sites Doonan had proposed prior that was vehemently opposed by residents), Mittens Flats, and two other areas, Perry said, are the select few potential aquaculture sites. He reminded the residents that this hearing was simply to allow Doonan to advance to the state review process and was not a final approval.

“I respect your positions,” said Selectman Norm Hills to the residents. “I guess I’m not sure that the highest and best use (of the harbor) is something that we need to address … probably because it’s full of moorings and piers. I don’t believe that we need a master plan for the harbor … it was part of it. We looked at the harbor; we didn’t see any problems there.”

Hills cited a regulation relative to the harbor, which prohibits three uses – aquaculture not included.

“The State recommends that aquaculture is good,” Hills said. “I guess I don’t see any compelling reason why this (application) shouldn’t proceed at this point in time.”

The hearing was promptly closed, and Hills made the motion.

“I’ll second,” said Gonsalves. “I’m in favor of the process.”

Also during the meeting, the Town is still without a decision on who to replace retired DPW Superintendent Rob Zora in the interim. Dawson said he contacted two people in the area who had retired from public works positions, but one declined and the other did not respond.

The selectmen appointed Dale Jones to the Conservation Commission, although it was poised to appoint the other candidate, Tom (Rady) Marauran until it was noted that his address on his letter of interest was a New Bedford address. Hills was ready to appoint Marauran, saying he felt the same way as he did when he appointed the two latest Planning Board members. “We need young people to start participating.” But unable to verify a Marion address for Marauran, the board appointed Jones.

In other business related to wastewater, the selectmen approved a draft scope of work regarding the NPDES permit. Legal counsel vetted it, considered feedback from the board, and has come up with another draft scope of work proposal to send to the EPA and eventually a final draft will be issued.

The search for a new Council on Aging director is underway, with a small hiring committee reviewing 12 applicants. Dawson will present the board with a list of finalists at the next meeting.

The next meeting of the Marion Board of Selectmen is scheduled for January 2 at 7:00 pm at the Marion Town House.

Marion Board of Selectmen

By Jean Perry


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