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HomeMy WebLinkAbout2004-07-14-BOH-min Lexington Board of Health June 17, 2004 Meeting Minutes Cary Memorial Library, 1874 Massachusetts Avenue, Lexington, Massachusetts Board of Health Attendees: James Fearnside, Burt Perlmutter, Sharon MacKenzie, Wendy Heiger-Bernays Health Department: Derek Fullerton, Kathy Fox The hearing began at 7:05 p.m., Fearnside informed the group of Tarlow Breed, Hart Murphy and Rodgers’ request for the public hearing to discuss public nuisances; appropriate safeguards to protect the town against fires and explosions regarding fuel oil storage, transfer, and transportation; emissions of particulate and air pollution; and noise and vibration of nighttime operations of buses and trucks, from 275 Massachusetts Avenue and 240 Bedford Street, doing business as Arlex Oil Corporation/C & W Transportation Inc. Fearnside asked Susnock if he agreed to the conditions of the videotaping of the hearing. Fearnside reviewed the conditions that a copy would be made available at Susnock’s expense and delivered to the Lexington Health Department within 5 business days. A copy would also be made available to any citizen. Fearnside instructed that at a future date, should the taping become illegal, that all copies of the tape will be destroyed. Susnock agreed to all the aforementioned conditions. Fearnside established the rules of the hearing stating the meeting will be conducted in three phases. 1. Phase One will be – Any individual that wishes to make a presentation on this subject of this hearing must raise their hand. They will then be recognized by Fearnside. They must identify themselves and give their address. 2. Phase Two will be a questions and discussion period 3. Phase Three will be the hearing will be closed. There will be no more comments from the public Fearnside then opened the floor to anyone who wishes to make a presentation. Michael Giamo representing Arlex Oil asked that because Mr. Fearnside had expressed an opinion about this matter in the local newspaper as well as on the Noise Committee, Arlex Oil is asking that Fearnside recuse himself from this proceeding. Fearnside stated he would recuse himself from any vote that has to do with noise. Giamo stated they would reserve their rights on this matter. Brian Kerwin asked to speak on behalf of Brian Susnock and his wife Cynthia. Kerwin informed the Board that there are several issues that merit the Board’s attention. Kerwin displayed a map that indicated Susnock’s home in relation to Arlex Oil. Kerwin stated that sometimes it is hard to figure out where noise is coming from and he wanted to make it clear and comfortable as to various locations. Kerwin indicated Susnock’s home in relation to the Arlex facility at 275 Massachusetts Avenue and that it is a residential neighborhood. Kerwin informed the Board of Health that they have a duty and an ability to deal with noise under the Massachusetts general laws. Kerwin stated the questions that he has raised for the Board of Health to investigate are: 1. Noise – whether the nighttime operations by the Arlex Oil Corporation constitute a public nuisance which should be abated. 2. Safety – whether Arlex maintains appropriate safeguards to protect the Town from fire and explosions. We are all aware of how close this facility is from the residential neighborhood. 3. Pollution – Kerwin stated they will be showing later articles about pollution, the idling of trucks and the unloading of hazardous fuels. Kerwin stated the noise is frequent and sometimes disruptive. Representative of the times this noise has been occurring from the trucks, from the business at this location are: 11:30 p.m., 2:18 a.m., 2:56 a.m. 3:20 a.m., 4:32 a.m., 4:44 a.m. Mrs. Susnock wakes up at these times, not voluntarily from the noise. Kerwin stated Arlex is acting as a depot and the pictures provided you showed non-Arlex vehicles. One vehicle is Federal, another is Heating Oil Partners LP, another is a flat bed truck being filled up that shows no special gear with respect to refueling. The frequency and amount of times that noise is occurring in January, February, March, April, May and even this week, is constant. Mrs. Susnock hears noise from backhoes, loaders, trash trucks at 2:15 a.m., 5:00 a.m., 4:44 a.m. Complaints regarding this go back as far as 1997. Kerwin submitted copies of the complaints that were submitted to the Lexington Police Department. Kerwin asked the Board, if a disaster occurs will the neighbors be safeguarded. Kerwin mentioned the tragedy that occurred on I-95 in Connecticut earlier in the year. Kerwin also showed copies from the Registry of Motor Vehicles of Arlex’s registrations. They have 43 vehicles. Not all of these vehicles are trucks but a good deal of them are. Kerwin asked did the Selectmen grant Arlex a special permit to operate or was it a noise permit to operate 24/7 in any manner Arlex deemed appropriate. What happens if something bad happens with the trucks? Is there an emergency plan afloat to protect the neighborhood. Kerwin stated the underground storage tanks, according to the permits granted by the Lexington Fire Department are: 14,000 gallon gasoline tank on this premises 110,000 gallon diesel fuel tank on this premises 110,000 gallon kerosene tank on this premises 520,000 gallon heating oil tank on this premises 310,000 gallon tank heating oil 3 above ground fuel waste tanks 1 propane tank and various gallon tank trucks Kerwin stated that it is quite a lot for a residential neighborhood. Kerwin asked if we have to wait for the I-95 situation to occur. Kerwin asked if some emergency procedure for this situation to be remedied. Kerwin mentioned about the law and wanted to start with noise. Kerwin stated the Code of Massachusetts Regulation states unnecessary emissions from sources that may cause noise, prolonged unattended sounds, for instance, construction and demolition equipment. Now when the noise committee looked at this issue, they said in their report that Arlex should adjust their methods of operation to prevent nighttime activity that cause excessive and unwanted noise. Arlex may find it possible to achieve this by rescheduling its nighttime operation. Kerwin stated that still the 24 hour permit was issued. Kerwin asked the question for today is, is the noise a nuisance? Kerwin stated that as to the issue of pollution, we think the Board has the ability to examine the level of pollutants in the air, to examine the various safety issues. Kerwin displayed articles concerning the relationship with cancer, the relationship with cardiovascular disease, the relationship with poor health. Kerwin stated that he does not believe Arlex will contest that there may not be health issue involved in it. But they will say that this business is good for the town, it has been here 80 years and they ought to continue and that the Susnocks are just complainers and perhaps all of you are just complainers. Kerwin feels the Board should examine this. Kerwin said the last time they were before the Board they asked if it is possible for the Police Department to use their equipment to ascertain the noise issue and perhaps we can ask the same with regards to the pollution issue. Kerwin stated that their witnesses will demonstrate the hours of the morning and the degree of noise to the extent that you are awakened out of a sound sleep demonstrate nuisance. Kerwin asked the Board to declare Arlex’s operation a nuisance. Kerwin stated this is zoned residential. No where in the zoning bylaws, no where in the zoning requirements is there permissison for a fuel oil dealer to operate. A fuel oil dealer including the sale and repair of heating equipment. Kerwin stated a table of uses in the zoning bylaws chapter 135 does not permit this type of use. Kerwin stated that Arlex is going to say that they had been there for 80 years and this is a grandfathered use, a pre- existing, nonconforming use. Kerwin stated that this use is not appropriate and it is a nuisance. Kerwin mentioned that witnesses are here tonight to address this issue. Fearnside then informed the group that they would stick with the format and if there is anyone wishing to speak, they should simply raise their hands and he would recognize them. Norma Floyd, 16 Oxford Street, Lexington, MA addressed the group. She complained that the meeting had been changed from the Police Department to Cary Library and she did not see it in the LEXINGTON MINUTEMAN. Elaine Adler, Sunnyknoll Terrace, Lexington, MA addressed the issue at 240 Bedford St. She mentioned that her fire alarms in the house go off when there is a temperature inversion and the pollution is so strong in the air that it actually sets them off. She stated this has been happening for at least 10 years. Adler stated she had sent a letter to the Selectmen after their decision to grant them permission for nighttime operation, that it was a really bad decision. She had sent a earlier letter to the Selectmen suggesting that it was a wrong that they did not adhere to the Noise Committee suggestion to only allow the permit for 6 months because it would have been a trial period and people would have been aware of it. Mrs. Adler is awakened at 2:54 a.m. with the noise from Arlex on Bedford St. Jim Sheehy then addressed the Board with his concerns about the idling of the buses at C&W on Bedford St. Julie Michaels of 5 Paige Rd., Lexington addressed the group concerning the idling and pollution from the buses at C&W Transportation. She feels there are economic and environmental reasons not to idle the buses. Cynthia Johnson of 12 Brandon St., Lexington, MA addressed the Board. She informed the Board of the times she was awakened by the sounds from Arlex. Ms. Johnson also explained her concern of trucks idling in the Arlex yard for 20 minutes. Brian Susnock of 12 Brandon St., Lexington, MA spoke to the Board. He told the Board how is awakened at 3:00 a.m. month after month. He feels the Board of Health has the power to override the unconditional special permit. Efram Weiss of 460 Lowell St. asked the Board to state it’s reasons for making its rulings Mr. Weiss feels it is very important for legislative purposes that this is done. Norma Floyd of 6 Oxford St. addressed the Board. She stated at the last meeting of the Board of Health was very concerned about the monetary concerns to Arlex. It also concerned her that the Selectmen granted this type of a permit and exemption without adequate opportunity. She stated that not being able to sleep is a very serious health problem which needs to be addressed. She also mentioned that this is not just a problem with Arlex Oil. Dumpsters are removed at all hours of the night all over the town. Pat Mehr of 31 Woodcliffe Road addressed the Board. He wanted to remind the Board that at the Town Meeting this year, Article 40 was passed which requires the various Boards to uphold the State and Federal Regulations. He also informed the Board of the State’s Noise Bylaw which mirrors the regulations in the Lexington Bylaw. He feels it is very important for the Board of Health to uphold this Noise Bylaw. Concerning the idling problems at the Arlex property at Bedford Street, Mr. Mehr feels it is important for the Board of Health, in conjunction with the School Committee to make sure that contracts for school buses are not signed with companies that violate the State anti-idling statute. Michael Giamo from Robinson Cole representing Arlex addressed the Board. Mr. Giamo stated they will show that the operations at Arlex are legal and reasonable uses of the property and that the Board should not act under the public nuisance statute with respect to these properties. Arlex reserves all these rights under Federal, State and local law with respect to this matter. Giamo expressed his concern about this public hearing covering two specific locations which are 3 or more miles apart. Giamo stated that Kerwin made a statement about buses while pointing at the property at 275 Massachusetts Avenue. Giamo indicated that there are no buses at 275 Massachusetts Avenue. He feels it is prejudicial to Arlex to blur the lines like that. Giamo wanted to point this out to the Board when deciding this matter. Giamo then wanted to correct Kerwin’s remarks about the size of the tanks at Arlex. The total storage facility is 130,000 gallons. The sizes indicated by Kerwin and Susnock are wrong. Giaimo explained that the house next to Arlex on Massachusetts Avenue is owned by Arlex. Giaimo also stated that many of the properties on Massachusetts Avenue are businesses. The Arlex business has been there for 53 years which is long before any of the local residents have come into the area. Giaimo stated that Arlex takes very seriously comments from residents and tries to address it to the extent that they can. Giaimo will show some of the things that Arlex has done to address some of the issues raised tonight. Giaimo submitted reports for the record to the Board. Giaimo stated that the complaints by of a single individual or a few citizens is not sufficient to warrant the finding of a public nuisance.With respect to 275 Massachusetts Avenue, every complaint to the Police came from a single individual, Mr. Susnock. Giaimo mentioned that in the packet given to the Board, there are copies of Police Reports which indicate that complaints against Arlex were investigated and found not to be noise from Arlex. Arlex employes 45 people at the Massachusetts Avenue location and 47 people at 240 Bedford St. Arlex has been in business at 275 Massachusetts Avenue for 53 years and 40 years at the Bedford St. location. Giaimo stated that anyone who moved into either of those locations knew full well that there were businesses going on at those locations. Arlex has approximately 1800 residential oil customers just in Lexington which it services from the 275 Massachusetts Avenue site. Giaimo stated that Arlex has always been a strong supporter of civic activities in Lexington. Giamio introduced John Hannish who is the National Air Quality Director for Akadis. Hannish. After a description of his qualifications and accomplishments, Hannish wanted to address the safety issues at 275 Massachusetts Avenue. All the operations at that facility are regulated by DOT. Arlex has an SPCC Plan. The Lexington Fire Chief is the designated official to determine whether Arlex has everything in place if there is a spill. Arlex has a security plan in place. Hannish then went on to explain the standards set by EPA concerning the 240 Bedford St. location. EPA reviews the standards every five years. Hannish gave a presentation concerning air quality, winter emissions from idling. Hannish also did a test for CO at the bike path with the buses idling. The results indicated after one hour of all buses idling, the CO is well below the standard at the bike path way. Hannish then introduced testing for the PM10 and mentioned that one hour idling of all buses would produced PM10 well below the standard at the bikeway. Hannish informed the group of the Massachusetts DEP unannounced inspection at the C&W location at 240 Bedford Street. After the inspection, they informed C&W that on that day, C&W was in compliance with the State Regulation. Later, DEP conducted training to all the C&W bus drivers to inform them of necessary and unnecessary idling. C&W gave the drivers written instructions to follow. The drivers were informed not to idle more than 5 minutes when it is necessary. The drivers and DEP agreed that when starting up the buses in cold weather, below freezing, it is necessary to run the buses until the windows are defrosted. They also agreed that there must be a safety check done at that time. Many of the things to be checked must be done with the bus idling. Hannish said that according to the contract with Lexington, the buses must be 55 degrees before the children board the buses. DEP said the buses could be shut off in between runs. After Hannish’s presentation, Kerwin asked the Board if he would have an opportunity to ask questions. Fearnside told Kerwin he would have an opportunity. Giaimo introduced Doug Shidel was a witness. Shidel has instructed DEP how to implement their own regulation and has trained them. Shidel will show how the Arlex operations that are troubling Mr. Kerwin’s client are consistent with background noise and the facilities location on a busy road and therefore are reasonable and not a nuisance. Giamio also stated with all due respect to the Board, it is unclear if the Board has the authority to regulate on grounds of of allegedly excessive noise levels coming from either the 240 Bedford St. or the 275 Massachusetts Avenue facilities and the reason for that is the Federal Noise Control Act 47USC Section 4917 which provides for the Federal Government to set noise standards applicable to motor carriers like Arlex and C&W operating vehicles for interstate commerce and it prohibits any federal or state standard from being adopted that is not consistent with federal law and the EPA has adopted regulations 40CFR202.20 through 40CFR202.23 to adopt sound levels applicable to these types of operations. Those set absolute decibels levels for trucks unlike the Lexington bylaw that has standards that are based on the level of background noise. Giaimo then asked that Arlex reserves their rights with respect to the pre-exemption argument. Giaimo also mentioned how the C&W and Arlex facilities received a special permit from the Board of Selectmen that allows them to operate during the late night and early morning hours and given this permission there is really no basis for this Board respectfully to determine that those operations constitute a nuisance to the limited extent that such operations do take place at 275 Mass Ave. and 240 Bedford St. Giaimo stated for the record that Massachusetts Avenue is a very busy road and has periodic truck traffic during the night. Other business operations that use it are located nearby. Some of the noises heard during the night are not from Arlex. They are just noises from Massachusetts Avenue which can be easily confused with Arlex Oil. Giaimo introduced Doug Shidell to address the noise issues in his study. Doug Shidell gave a brief bio of himself including DEP asking him to conduct some training for some Board of Health in Western Massachusetts to developing a program in cooperation with the DEP standard. The DEP standard is exactly the standard that the Lexington standard is based. That standard is establishing the ambient base line and the allowable sound level above that base line is 10 decibels. In the period that Shidell was to do this study, there were no nighttime activities at Arlex of the truck moving onto the site. In understanding what that that operation is, it is a momentary intrusion is as a truck drives around the building, comes off Mass Ave. and goes through a gate and pulls up to an unloading dock and the engine is shut off in most conditions the fuel is unloaded and then the engine is started, the truck drives to exist on to the side street and pulls out to Mass Ave. and out of the area. He took two types of measurements. Both instruments are calibrated for scientific study. One was set up in the DEP recommended methodology of taking a 60 minute sample. It will then produce a L level. The other was a data recorder and the bumps indicated are from an ambient sound from Mass Ave. New technology is being used and they are using quieter trucks. Shidell was asked what could be done to quiet 240 Bedford St. He recommended using block heaters to reduce the warm up time. The buses are backed in at the end of each day so that the buses can just pull out in the morning. There are no old buses used in that fleet of buses. In addition, the burm has been built up around most of that property. It puts the exhaust pipe below the burm. He believes all mitigation measures that could be applied to these resources have been applied. Jack Sullivan addressed the group. He is Executive Vice President of New England Fuel Institute. Sullivan feels Arlex is a concerned company. They have contributed towards technical development and training. Sullivan stated that as of July 2006, diesel fuel will drop to 15 parts per million so that all the trucks will be running at 15 parts per million. Over the period of one year, 30.8 billion tons of petroleum product move across our roads. Each of the Arlex employees is trained thoroughly in safety precautions. Giaimo stated that there is 130,000 gallon storage at Arlex. On a cold day they can go through 100,000 gallons. What that means is, on a cold day when they fill up the trucks to make deliveries the next day, they are about out of oil and it is necessary to replenish that oil during the night so when the trucks make the deliveries they can come back to fill up the truck. Giaimo stated that Arlex wants and intends to continue to be a good neighbor to Lexington and a good business neighbor particularly. It is not a case where a new business has come into a residential environment in a disruptive fashion. These operations have been there for a long time. Fearnside asked to move on to Phase Two. Phase Two is where if people have specific questions and points of discussion, be brought forward. Fearnside asked members of the Board if they have any questions. Wendy Heiger-Bernays asked for clarification on the storage tanks at the Mass Ave facility. David Eagle, President of Arlex Oil stated that presently they have 130,000 gallons of home heating oil, 10,000 of diesel fuel, 3,000 gallons of kerosene, 4,000 gallons of gasoline and above ground 1,000 gallon propane tank. Fearnside asked Mr. Kerwin. In your letter when you were requesting this hearing, you site two Mass general laws, one relates to nuisance and the other which has to do with pollution. Fearnside looked up this law on the web. Fearnside recited Section 1.22 to the group. Fearnside said that everything in that relates to infection and vessels. Kerwin stated that because a special permit was provided to operate does not address the issue whether this Board has the right to separately determine whether appropriate licenses exist and whether or not certain activities are conducted which are potentially troublesome to the neighborhood. Kevin Batt, Town Counsel, addressed the group concerning nuisances. Batt said what is unreasonable. The courts have looked at a balance between looking at the utility of the operation or activity to the public versus the negative impact. The courts will weigh to see how many good benefits are attainable to the community via job, services provided. Another is who has priority of time. Batt also mentioned that if there is a question concerning proper zoning, this is not a determination for the Board of Health but rather the Zoning Department. Batt reiterated the zoning issues are not before this Board. Kerwin respectfully disagreed. Heiger-Bernays asked Hannish several questions concerning his testing data at 240 Bedford St. and air quality issues. Hannish informed the Board that he did a CO test for one hour. MacKenzie asked if the State standards are more stringent, do they supersede the Federal Standards. In this case they do responded Giaimo. Kerwin asked noise or pollution. MacKenzie said both. Giamo stated for pollution the state complies with federal air quality requirements by adopting a state implementation plan and in affect that is the air regulations for the Commonwealth of Mass. Lexington has adopted an idling standard which is consistent with DEP. DEP idling standard is air emission standard not a noise standard. Fearnside asked Giamo if he had stated that because the Board of Selectmen had issued a variance to Arlex for noise, therefore, the Board has no authority but to honor that variance. Giaimo answered yes but not exactly the way Fearnside put it. Giamo said you have a town noise standard that is modeled after a state idling standard and because the Board of Selectmen gave Arlex the special permit they have exempted from certain of those standards. Per Kevin Batt, the Board of Health under the local noise bylaw like the police have certain enforcement authority. However, once the Board of Selectmen issued a special permit, then it is no longer a violation and, therefore, there is no action under the bylaw. Batt said this is something different. It is a nuisance issue which goes beyond the noise bylaw. Batt said before the Selectmen issue the Special Permit they would have to take into account that this special permit would not impact the neighbors. Myla Kabit-Zinn addressed the Board. She stated she is a member of the noise bylaw committee and has this evening to be very discouraging and confusing. She stated that we have all these experts who have been paid large amounts of money to do these measurements. She also mentioned that she is awakened during the night from businesses near her. She asked if we had measured the noise of the trucks that come in at all hours of the night. Kabit-Zinn believes it would behoove the Town and the Board who should be looking after the health of its residents. Nighttime is when we should heal from our daily stresses. Somebody needs to do measurements of the noise that these people are living with. We must uphold our laws for all and that is what we want to see happen. Giaimo mentioned that there was a reference to a truck last Friday. That was a trash truck that arrived too early and that trash company was fired. He stated that Arlex responds to these complaints. Mr. Sheehy asked if the variance was issued to anyone besides Arlex and C&W. Fearnside asked Mr. Eagle if that was correct. Eagle responded both locations, that is correct. Fearnside then said he counted approximately 40 buses at Bedford St. Eagle confirmed the number. Fearnside asked Kerwin about his reference to Regulation Chapter 111 Section 31C that deals with pollution and particulate matter. Fearnside reviewed the Code of Lexington and found no regulations dealing with pollution and particulate matter. Fearnside stated that should a Lexington regulation be written, it would be a lengthy process because it would require the Board of Health having approval from the Massachusetts DEP. Kerwin gave to the Board a copy of the list of vehicles from the Registry of Motor Vehicles that are owned by Arlex. He also presented a list of the Lexington Police Department Complaints for the record. Kerwin responded to Fearnside regarding the General Law Chapter 111 Section 31C that he will present a supplement. Kerwin asked to cross examine the witness for Arlex. Fearnside asked Batts if this is appropriate at a hearing. Batts stated it would be appropriate. A question came up about continuing the meeting. Batts felt we could repost and make that determination another day. Fearnside asked Wendy Heiger-Bernays if it is practical to make some measurements. Wendy Heiger-Bernays stated that this Board is very knowledgeable concerning health issues related to health. She went on to state the difficulties in doing the testing to provide answers. Fearnside stated that with the courts if the party comes to the nuisance, they don’t have a right to complain. Fearnside asked Eagle how long the large trucks have been delivering fuel to the operation in East Lexington on Massachusetts. Eagle responded with 53 years and prior to that Arlex was by Mal’s for a total of 65 years. Eagle then went on to explained how they have downsized. Eagle also wanted to clarify that even though there may be 130,000 gallons of oil in the tank, with the new laws there are probes in the tank so you can only get 80% usage from the tank. Eagle said these tanks were all relined in 1997, all new piping etc. in accordance with the new regulations required by December 1998. Patrick Mehr asked Town Counsel about the special permit granted by the Board of Selectmen. He wondered if an exception to the noise bylaw is granted and then the petitioner decides to put in something that is extremely noisy but technically permitted for that area. Mehr asked if the Board of Health has received from Arlex how many deliveries are made during the night. Fearnside tried to establish dates to continue the hearing. After much discussion it was th decided the hearing would be held on August 5 at 7:05 at a place to be determined.