Walpole Planning Board
Walpole Town Hall
October 13, 2015 Minutes
Presiding Members: Robert Miller (Vice-Chair), James Aldrich (Secretary), Steve Dalessio (Selectboard Representative), Jason Perron, Dennis Marcom. Alternates: Jeff White and Ed Potter.
Absent: (Chair) Jeff Miller and Board Member Kelley Hicks.
Recording: These minutes are unapproved and will be reviewed at the November 10, 2015, meeting for corrections, additions and/or omissions.
Meeting Opened: Mr. R. Miller called the meeting to order at 7:01 p.m.
Roll Call: Two board members were absent so both alternates were needed to fill in for the board.
Minutes: For the September 8, 2015, regular meeting and a September 22, 2015, workshop meeting. Mr. Marcom pointed out two typos in the regular minutes – eastwood was changed to eastward and on the next page immature was changed to premature. Mr. Aldrich made a motion to accept the minutes as corrected. The motion was seconded and approved by the entire board.
Old Business: Mr. R. Miller reopened the Public Hearing, Site Plan Review, for Ruggiero Processing Facility, LLC., a continuation of the August 11 and August 17 meetings.
Mr. Tom Hanna spent the first 15 to 20 minutes going over a written statement that outlined his view of the role of the planning board in a case where there’ are comprehensive regulations under statute RSA 149-M. He also included what he thought were misconceptions by the public that he had heard over the last few weeks.
The following is the written statement Mr. Hanna gave to the Planning Board. He did not always read the statement and sometimes paraphrased the content. Here it is.
Introduction: The hearing tonight is a continuation of hearings on August 11 and the site visit on August 17. The purpose of this memorandum is to outline the Planning Board’s role in light of the comprehensive regulation of solid waste facilities by the NH Department of Environmental Services (DES) pursuant to state law ( RSA 149-M). In addition, this memorandum will clarify and correct certain rumors and misrepresentations that have infiltrated the process, as well as provide an overview of pertinent facts. The willingness of Ruggiero to be transparent with its proposed activities should not be construed as an acknowledgment that the Planning Board has jurisdiction over the issues addressed in this memorandum. Rather, Ruggiero intends to be part of this community for the long-term future, and it has no reason not to be open about is proposed operations.
Ruggiero has filed a site plan with the Planning Board to inform the Board of the following modifications to the previously approved site plan. The changes are as follows:
1. Installation of a new access driveway over Ruggiero property. Ruggiero has previously accessed the site via an existing gravel road over Hodgkin’s property, but DES prefers that Ruggiero have access over its own land.
2. Addition of two pole barns, one that already exists and another which is 100 feet by 25 feet.
3. Installation of a scale near the new access driveway.
4. New office near the scale.
These modifications coincide with a detailed application to DES for a permit to collect, store and transfer Municipal Solid Waste (MSW), in addition to the collection, storage and transfer of recyclable materials and Construction and Demolition Debris (C&D), which Ruggiero is already permitted to process.
Facts/Clarifications:
The following bulleted facts and/or responses will further explain the proposal and the Planning Board’s role:
Dump: This is an incorrect term to describe the proposed transfer facility. No waste materials will be tipped onto the ground. Nothing will be buried. MSW will be dropped on the floor of a contained building, and after recyclables are removed, transferred to a bulk container. The MSW is then moved off site, typically within 24 hours and never more than 72 hours after arrival on site. The operation is a transfer facility.
What is Municipal Solid Waste (MSW)? MSW means “solid waste generated at residences, commercial or industrial establishments, and institutions, but excluding construction and demolition debris, automobile scrap and other motor vehicle waste, infectious waste, asbestos waste, contaminated oil and other absorbent media and ash other than as from household stoves.” See NH Env. SW 103.47.
Garbage. This term has been misused. The primary definition of garbage, according to Webster’s dictionary, is food waste. Joe Ruggiero states that surveys indicate that MSW from residences typically includes up to 30 percent of garbage (by weight). “At my house, where we compost, I would say our MSW comprises about 5 percent of garbage.” (Secretary’s Note: This is where the chicken-bone reference comes in in a later comment in the Public Hearing. Mr. Hanna states that his percent of garbage contains barely more than a chicken bone.)
Odor. Off-site odor will not be a problem because MSW will typically be transferred within 24 hours and never will the transfer occur more than 72 hours after arrival. Once Ruggiero begins bringing MSW to the transfer facility, a mister machine will be installed in the building where the MSW is dumped on the floor and sorted. The mister will be utilized, if necessary, to control any odors.
What happens to MSW when transferred off site? It goes to one of several disposal sites, including for example, without limitation, Springfield, MA, Berlin, NH, Coventry, VT. Wherever it is most cost-effective to transfer at a given time.
How many tons of MSW will typically be brought to the Walpole site for sorting and transfer on a daily basis? 10 to 25 tons/day, which translates into approximately 20 trucks per day, a fraction of the trucks entering the Industrial Park on a daily basis.
Area of operation. The current operation covers about 3 to 4 acres. The application to DES and the site plan application will not enlarge this area appreciably.
Composting. Ruggiero has not applied for a permit to compost and would have to do so if composting is contemplated in the future.
Rodents. The proposal is not likely to cause a rodent problem because the MSW is typically transferred off site within 24 hours and the (Secretary’s Note: Mr. Hanna mentioned there are 4 on-site) cats are a tried and true deterrent to a rodent problem. Mr. Ruggiero discussed this issue with a pest control specialist and was told that none of the typical measures taken by a pest control firm would be as effective as the cats.
Closest abutting house. 400 to 500 feet as measured on Google Earth.
Role of Planning and Zoning Boards.
The New Hampshire Supreme Court case, North Country Environmental Services, Inc. v. Town of Bethlehem, 150 NH 606 (2004), decided the extent to which towns may regulate solid waste facilities. The facts are similar to the facts in the Ruggiero application.
Regulation of solid waste facilities is conducted exclusively by DES, under a comprehensive regulatory state (RSA 149-M), except as set forth below. Because of the comprehensive regulatory scheme, the State has “preempted” local regulation.
Specifically reserved to DES is regulation of the following: structures, footprint, content, (i.e. material handled), operations, slopes, heights, drainage, water quality impacts, and all other subject matters that are reviewed as part of the DES permitting process.
Under the statute, the Court said, a town may regulate the location of the solid waste facility, such as through zoning, “if done in good faith.”
The Walpole ZBA’s decision of February 21, 2011, granting Ruggiero a special exception to operate a solid waste processing facility on Industrial Park Road, was within the town’s authority to regulate the location of the facility.
However, any attempts by any Town Board to regulate the operations of the solid waste facility, the type of materials collected for transfer (such as MSW), the size or footprint of buildings, or to prohibit any expansion of DES-regulated activities at the approved location, directly conflicts with the state’s permitting authority and are thus preempted by the State.
This is the end of Mr. Hanna’s written statement.
In Mr. Hanna’s dicussion of the role of the planning board. Mr. R. Miller asked, “Does that mean our site plan and zoning has no weight?”
Mr. Hanna said, “Yes, that’s pretty much it.”
Operations of the facility, slopes, height, water quality have been deemed by the NH Supreme Court – in the Bethlehem case – a state authority. There have been many attempts to have town boards regulate these things and prohibit any expansion but that directly conflicts with the state’s permitting authority.
“I know you don’t like to hear it, “ Mr. Hanna said.
Mr. Dalessio asked if the map that’s was on the easel was the latest drawing of the property because it is different than the one the board has. The map the board had was submitted with the application Aug 5, 2015. The maps were different. Mr. Dalessio said, “right now we don’t have a copy of that drawing.
“We have a 7 / 21 drawing – the drawing that’s being presented tonight does not match the ones that we have in our files. So I don’t know how we can make a decision on a drawing we don’t have. Look at application. You did not present a colored plan to the board.”
Mr. Rob Hitchcock, the surveyor, said he used colored plans on the board to make it easier for the audience to view.
Mr. Dalessio asked, “How do I know if that drawing is technically different than the one submitted with the application. If you want, I’ll sit here and do a line by line audit and maybe we’ll get done by 11 o’clock tonight. If it has been submitted, the fact is that this board doesn’t have authority to make a decision on this matter anyway.”
Mr. James Aldrich asked Mr. Hanna, “Why are you here tonight before this board? Why not go back to the Zoning Board? In 2011, the number 4 condition was that Mr. Ruggiero could not expand his business without going back to the ZBA.”
The application was filed before I got involved in this matter, Mr. Hanna said. But the board really doesn’t have authority to do anything about it.
The one exception to the state’s perception is that the town has a right to the location of a waste sight. It did that in 2011. What’s being proposed now are operational changes being regulated by DES, Mr. Hanna said.
But the 2011 letter says operations may not be changed or expanded without returning to the ZBA for permission, Aldrich insisted.
The state regulates operations. The ZBA can’t impose conditions for which it has no jurisdiction, Mr. Hanna said. So once it was determined that the location was acceptable for a solid waste facility the types of proposals that are now in play are operational proposals and the state has preempted that. Changing from destruction debris to municipal solid waste is operational.
Mr. Jeff White asked about the mister. Since there is no town water at the site, are you going to dig a well? Where is the drained water going to?
Mr. Joe Ruggiero explained that the mister comes from a 55 gallon drum. It is a deodorant you buy like Fabreze. It drains into a tank that has a shut-off valve.
Mr. Dalessio asked Mr. Ruggiero when he takes possession of the waste. In the site walk, Mr. Ruggiero said it was once it hits the sorting building’s floor. When does the clock start on the 72 hours? Asked Dalessio.
Mr. Ruggiero clarified this and said that according to DES once the dumpster is on site, that’s when the clock starts.
Mr. Hanna said he send a document to the chair – it really was a memo with a cover letter. No one on the board was aware of any memo.
Someone asked about the application. The application was received application by the Town Clerk months ago. It is on line, Mr. Dalessio said.
Tara Sad, state representative for the town of Walpole read from the RSA 147 rule 9 under 7 permitting.
It says, VII. The issuance of a facility permit by the department shall not affect any obligation to obtain local approvals required under all applicable, lawful local ordinances, codes, and regulations not inconsistent with this chapter. So, Sad continued, this statement says that the facility has to come to the towns.
Mr. Dalessio interjected. “So I’m stuck there, I have two different opinions.”
Mr. Hanna added “as long as the local regulation are not inconsistent with state regulatory scheme.”
Sheila Lennon, a local resident said she was really confused. “I talked with Paul Gildersleeve and another woman at DES. You said state regulations override local regulations. Both of these people at DES said ‘no that is not true.’ You have to get local permission as well as state permission.”
Ms. Joan Larkin said if she were not mistaken when you applied for this it was for construction debris. Now all of a sudden we’re bringing in a dump – if you say one thing to begin with, how can I trust this company not to come with something else.”
Mr. Hanna said every party granted a land use permit is allowed to go back to DES. In this case it was granted a permit for construction debris and so only construction debris is allowed on that property. Mr. Ruggiero is going through this process to get the additional permit.
If we did a little tour tomorrow morning would we find any MSW on that property? Mr. R. Miller asked.
Mr. Hanna said you may find a little amount. When he was building his house, he might throw a coffee cup into a dumpster as he passed.
Mr. R. Miller continued. I’ve been a 28-year resident on Blackjack Crossing and in the last month I’ve seen more MSW trucks going down the road – and not with construction debris.” Mr. Miller asked where his trucks were going. Mr. Ruggiero answered “Jaffrey.” He said he had a lot of customers on Blackjack Crossing and Wentworth Road.
Mr. Aldrich read from Article VII of Zoning Ordinances in the Industrial District part E. “ No commercial venture or use shall be permitted which would cause any undue hazard to health, safety or property values or which could be offensive to the public because of noise, vibration, excessive traffic, unsanitary conditions, noxious odors, smoke or similar reason.” “Twenty trucks a day down there is excessive traffic,” Aldrich added.
Mr. Hanna asked how many trucks does Old Dominion had. Mr. Aldrich didn’t know but this was additional trucks.
Mr. Eric Merklein said this should be a concern to the town. He said the town doesn’t have a health or safety officer. Mr. Dalessio corrected Mr. Merklein and said there was a health officer. Mr. Merklein continued and asked who was going to inspect this area. He didn’t trust the Waste Facility to do it. “Who is going to look out for us? This job takes experience. The state is not going to be here for us.”
Mr. Ruggiero said, ”I would think a health officer would do whatever you would do if your septic overflowed. Have the homeowner clean it up, get it fixed or have a cease and desist order.”
Some one from the audience said, “There is zero oversight.” Mr. Ruggiero said he is inspected by the state.
Mr. Cliff Cooke wanted to know about the tax situation. How much does he pay now, how much will he pay? Mr. Ruggiero said he paid about $1,700 when he came and now pays $10,000. Mr. Dalessio pointed out that the $1,700 tax was because the property was in current use when he purchased it. Mr. Dalessio continued that he didn’t know what the tax would be but an assessor would go out and look at the operation and come up with an assessment.
Mr. Frank Anderson said his property would be affected by the MSW going in and asked if he would get an abatement. Mr. Dalessio said he didn’t know.
Ms. Pauline Barnes said she would like to remind the Planning Board that they are stewards of this town. She asked if the board had gotten the opinion of a lawyer. “Mr. Hanna is making certain legal claims. Shouldn’t a lawyer representing the town be present? It’s hard for you as non lawyers to respond.”
Also, she said, there’s a brook or a stream running close to this property. Has that been addressed? she asked. Contamination should be been considered.
The brook Ms. Barnes was referring to was Houghton Brook. The issue is being addressed. Mr. Hitchcock said. The sorting floor is tipped so the liquid drains into a 1,000 gallon holding tank and an alarm goes off when it is nearly full. Then it’s taken off site and drained.
Mr. Hitchcock said Mr. Paul Gildersleeve at DES said no record of any contamination of groundwater or stream has ever been recorded due to a leaking dumpster.
Someone from the audience asked if the board was going to get legal counsel. Mr. R. Miller said he is pushing for that.
Mr. Stefan Stefanko said to Mr. Hanna that he thinks he has probably a little more trash than the occasional chicken bone. There are dirty diapers, cat litter all other kinds of things going into the stream of waste. Mr. Hanna said he was only talking about my own situation. Mr. Stefanko asked him just to be honest about MSW is. It is clear more goes into this waste than a chicken bone. Mr. Hanna countered that if it’s clear why are you making a case about it? Because Mr. Stefanko said, you’re an attorney and you’re making it point of how little goes into the waste stream with the comment about the chicken bone. Let’s be honest about it – it’s dirty diapers, cat litter and a lot more.
Mr. Stefanko said his question of Mr. Ruggiero was “How can we trust you?” You came to the Zoning and Planning Boards and presented a case for construction debris. When did you change your mind? It’s like the vacuum cleaner salesman, the guy who gets his foot in the door. There has to be a level of trust. You start out by saying your are going to do “X” and somebody brings you something and then you are doing “Y”. The public has to now worry about you doing “Z.” Why should we believe you?
Mr. Ruggiero said the decision was made about eight (8) months ago. About that time recycling was mandated in Vermont so Ruggiero started picking up people’s trash. He wants to be able to bring it to his facility in Walpole.
Mr. R. Miller pointed out that the have town has an award-winning recycling center, very well run, clean and neat. It is managed by Mr. Paul Colburn. “We don’t need Vermont’s MSW, New Hampshire’s MSW, coming to our town” he said.
Paul Colburn said Garry’s Rubbish, who is from a firm in Claremont, collects Charlestown’s rubbish and it’s all dumped in Charleston. The same things with their recyclables. Every town has a transfer station. Why not dump Walpole’s garbage in Walpole. Why not dump it in the town where it’s collected?
Mr. Ernie Vose said that the town subsidizes the recycling center. “It’s on the warrant every year.”
Mr. Bob Anderson asked Mr. Ruggiero, “Are you planning to go before the Zoning Board of Adjustments or does that Board have to take you to court to get you there?”
“I said,” Mr. Hanna interjected, “in my opening statement.” The ZBA’s decision in 2011 was a special exception granted for construction and demolition debris. It’s a solid waste facility.
Mr. Aldrich took exception to calling it solid waste – you said solid waste was MSW, this is commercial or industrial. You’re confusing me. My interpretation of the law based on the statute and the Supreme Court cases that have been decided, where the Zoning Board said that the special was subject to “Operations may not be changed or expanded without returning to the ZBA for permission.”
“The Zoning Board does not have the authority to regulate the operations of this solid waste facility, only the state does. So we wouldn’t go back to the Zoning Board.” Mr. Hanna said.
France Menk said she was here to learn about this very contentious issue. “I just ask everybody to respect everybody else’s intelligence. There’s a lot of arrogance going around.”
Mr. Anderson asked Mr. Ruggiero to explain where he is currently sorting his MSW. Mr. Ruggiero said, “wherever I can, Jaffrey, Newport, Shaftsbury.” He then brings back the recyclables to Walpole to put it with his other sorted recyclables. “It doesn’t make sense,” he said. “That faculty is there now and I’m driving a way over to Jaffrey.” He said he had to absorb the cost.
John Peska said the award-winning recycling facility is on three acres. This facility is 13 acres which is larger than the city of Keene. This is a 3700 person community.
Mr. Phil Carroll asked “What is the potential size? Couldn’t you potentially go there? Could all 13 acres be dedicated (to as waste facility)? “
Mr. Hanna said, “I’m focused on the permit. I don’t know what to say.”
Mr. Carroll continued, “Are there any restrictions on this? What are the limits? How big could it get.”
Mr. Hanna said he had no idea.
Mr. Adrian Basora said Mr. Hanna was insulting our intelligence here because he is alleging that we had no grounds to stand on. The Planning Board needs to consult legal counsel to see if Mr. Hanna‘s views are correct. “I find it hard to believe there is no action the town can take to stop this.”
Mr. Anderson said it sounded to him that there might be a potential for a legal case. Someone said the town should look into it and urges the Planning Board to take a vote and see.
Mr. Hanna said, I don’t think this board would ever say I tried to insult someone’s intelligence. To the extent anyone feels that way, I apologize. I was getting questions from several people and trying my best to answer them. And I’ll continue. I don’t think I have lack of respect for people’s intelligence, including yours (referring to Mr. Basora).”
Mr. Bob Anderson asked Mr. Ruggiero if he would be willing to limit the future scope to agree to operate on a 4-acre footprint. “That would eliminate a lot of the fear of how big you are going to get.”
That is not a question an applicant should be forced to answer, Mr. Hanna said.
Mr. Carroll said it wouldn’t be binding.
Mr. Rich Francis said the audience hasn’t been paying enough attention to what’s allowed to be there and the operation and the facility itself. Jurisdiction doesn’t mean they can allow anything to go in there. He said to him this facility is permitted for building and other construction waste and that the state can regulate that all they want. But doesn’t mean it can municipal waste into that steam.
Ms. Lennon mentioned a fire in Salem at a waste facility. It was a five alarm fire and it took 10 million gallons of water to put out that fire.* “Are we prepared for an emergency of that scop,” she asked. Suppose something goes into the river? The town doesn’t want to be responsible for a future hazardous cleanup.
The public hearing was closed and there was a short 2-minute break.
After the break Mr. Dalessio said we are in no position to take make a decision until we get the right map, truly the right documentation.
Mr. Aldrich said he thought the Zoning Board and their jurisdiction should be in that too. Mr. Dalessio said the confusion from DES emails about how the complies is confusing. “I think we have to get that clarified before we vote.”
Mr. Marcom made a motion to defer the decision until such time as we have a discussion with our town lawyer about the our authority and the ZBA authority, until we have a complete site plan review and have the right documentation and then how it relates to the comments and decisions made by DES.
The motion was seconded by Mr. Aldrich and unanimously agreed to by the Board.
In Other Business
Hubbard Farms had postponed their hearing until next month.
No one from Bensonwood or the Potato Barn was in attendance.
New Business
Ms. Joanne Gay requested a Public hearing for next month for a subdivision of her property in North Walpole. A motion was made by Mr. Aldrich to hold a hearing in November. The motion was seconded by Mr. Marcom and the board approved unanimously.
The meeting ended about 8:40 p.m.
Respectfully submitted,
Marilou Blaine
Secretary
*Ms. Lennon emailed the secretary the next day and her email said “Fire officials estimate they used about 1 million gallons of water from three different sources-small yard hydrants on the property, the regular municipal hydrant on Route 38 and water from Hedgehog Pond.”
Posted: Town Offices, outside bulletin board of Walpole Grocery.
Cc: WPB, ZBA, The Walpolean.org, http://www.walpole.nh.us.
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