AYER -- On Oct. 4, activists called on the Ayer selectmen to rally behind Ayer DPW Director Daniel Nason's recommendation and more forcefully demand Stormceptor-brand stormwater filtration devices for the new Pan Am automobile transfer rail yard under construction.
A 1,200-car Phase 2 project is underfoot, located next to the 800-car Phase 1 lot completed in late 2009 off Willow Road.
Selectmen were to convene in closed-door session this Tuesday night to discuss their legal options. Among the options up for consideration may be seeking emergency injunctive relief to at least temporarily slow or stop the project until Ayer's interests could be heard.
Bev Schultz of the ad hoc Ayer-Littleton Spectacle Pond Association told receptive selectmen of their concerns with the joint Pan Am-Norfolk Southern Railway project, a prong in the joint venture's so-called "Patriot Corridor." But the selectmen have been careful in responding to both Phase 1, and now Phase 2 of the project, hamstrung by its own legal wrangling with PanAm in the past.
In 2003, the town settled a federal lawsuit filed by Pan Am, which freed the Billerica-based rail company to build its multiphase train park despite the fact that it lies atop the town's primary drinking-water source. The resulting "Consent Decree" mainly allows the town of Ayer to monitor, but not dictate, how the train park is built. A vehicle of interstate commerce, it's often been stated that the railway is instead regulated largely at the federal level only.
Still, in the face of vocal opposition in 2009, Pan Am agreed that year to install Stormceptor stormwater filtration devices around the perimeter of the Phase 1 project. However, as Phase 2 rolls on, Pan Am has refused to install the Stormceptors, citing the added cost.
Nason has advocated vigorously for the Stormceptors to be used in Phase 2. Nason brings technical expertise to the table as far as Stormceptor devices are concerned. Prior to his employment for the town of Ayer, Nason was once employed as the U.S. Stormwater technology manager for Stormceptor Corp., which has since been renamed Inbrium Systems Corp. of both Rockville, Md., and Toronto, Ontario, Canada.
Nason has maintained that Stormceptors would provide a higher degree of protection for the town's water supply. In the event of an emergency, Nason has said it would be important that all emergency responders be familiar with one, uniform stormwater filtration system to ensure that any potential spill on site is contained, be in from Phase 1 or Phase 2.
In the meantime, Pan Am Railways and its wholly owned subsidiaries remain on criminal probation out of Middlesex Superior Court for an August 2006 locomotive diesel fuel spill in Ayer. In March 2009, Judge Elizabeth Fahey slapped Pan Am with the largest corporate criminal fine in the state's history, $500,000, for knowingly failing to report the locomotive spill of hundreds of gallons of diesel fuel, and in taking steps to clean up and cover up the mishap in violation of state and federal environmental laws and regulations.
With state Rep. Sheila Harrington sitting at her side, Schultz asked the selectmen to think about penning a letter to the state's legislative delegation, Harrington and state Sen. Jamie Eldridge, to state their case.
"I think that Pan Am is coming to the table in good faith with our Water Department, but we think there are three things missing," said Schultz. He called for money earmarked for groundwater testing around the Phase 2 lands. Schultz said that the Littleton selectmen have indicated "equal concern" over its drinking-water source.
Schultz said the test wells should be located on Pan Am's property, unlike the Phase 1 test wellsm that are located on adjacent lands owned by the town of Ayer.
A second percolating concern is whether or not the generic catch basins Pan Am intends on using are "adequate for what we want," said Schultz. "We haven't been able to get beyond that."
Finally, "and this is kind of a strange one," admitted Schultz: "What IF something happened?"
The floods of March 2010 caused the temporary loss of the Spectacle Pond water shed as a precautionary measure when water levels rose and threatened the sanctity of a sanitary shield around the water source. "That took us quite a while to figure out," said Schultz. "We've seen the impact of losing the use of municipal wells."
"We will not be so lucky if fuel makes its way into the aquifer," said Schultz, echoing comments made by Littleton Selectman Alex McCurdy, who also previously served as a fire chief for both Harvard, then Littleton in addition to service as the vice president of the Fire Chiefs Association of Massachusetts and president of the District Six Fire Mutual Aid Association.
Schultz said McCurdy said that delays in responding to hazardous-material spills "magnifies" each minute a response or solution is delayed. In a worst-case scenario, "We'd lose the use of our water."
Ayer Selectman Carolyn McCreary thanked Schultz and suggested, too, that the town "make sure that Pan Am has a maintenance plan for maintaining the stormwater systems that they're putting in place."
Schultz added, "We need help from somewhere...I don't think that Ayer has the money to put in a full test-well system that would be adequate for this."
Harrington said that she's been in contact with Congressman Niki Tsongas' office and that an aide from her office, Katherine Enos, has been tasked with monitoring the matter. Harrington said that it appears Pan Am feels destined to proceed and then "seek forgiveness" if there is a system failure down the tracks.
Ayer selectmen Chairman Gary Luca asked if Harrington had touched base with Littleton's state representative. Harrington said she had not.
Ayer Selectman Frank Maxant said that Tsongas' predecessor, Martin Meehan, "promised he'd initiate federal legislation on this. We never saw anything. That's going to take some followup."
Harrington said that's a long-term situation -- seeking local relief for communities concerned for their drinking water in the face of further railway developments. But now, Harrington pondered whether there was an emergency need to seek a "stoppage of the work order" until Pan Am "honors the standards they promised."
Maxant said in walking by the site he asked a worker about the construction time table and said that while the Phase 2 lot was expected to be "operational in December," that the paving was to occur in a week, or that is, this week.
"He indicated to me that they're about done and they don't have the 'Stormceptors' in place," said Maxant.
Maxant compared the Pan Am situation to "dealings I had with GE (General Electric Corp.) in the 1970s. They routinely had emergency plans with the communities they're in.... I know big companies do it. It's nothing out of the ordinary."
"So we don't interact with them?" asked Luca to Ayer Fire Chief Robert Pedrazzi.
"I haven't interacted with them," answered Pedrazzi.
McCreary said Tsongas' office sent Pan Am a letter in July and Pan Am never responded. "I think that's a really unfortunate position."
Harrington suggested that there's strength in numbers. "What about Pepsi Co.? Aquafina?" Pepsi bottles Aquafina using Ayer's public-water supply. "I don't know if there's a mechanism they can be brought in on this."
Schultz said that Ayer has five SIUs (Significant Industrial Users). Ayer Selectman Pauline Conley added that "Cains (Foods) is another one." Luca added that Vita Soy manufactures in Ayer, too.
"Has Littleton offered to kick in any money?" asked Mary Spinner from the audience. Schultz offered "We could probably ask."
"They get some water from there, too," noted Spinner. "It should probably be a joint thing."
Conley suggested that Pan Am "incur the cost of putting in monitoring wells for our benefit, not for their benefit. Littleton would benefit from it as well."
"My concern is time is of the essence here," said Harrington, who is also a lawyer. She suggested the town explore seeking injunctive relief from the court "and then try to get, as part of that relief, well monitors...If their attention is caught by an injunctive order, that puts a stop to their work order."
Harrington also added that Pan Am "probably (has) more money to do it than the town does. Just a thought."
On the flip side of the interstate-commerce argument that has protected the railway company from local regulation, Maxant said "those companies are putting our water into interstate commerce." Maxant also said that when he first became a selectman, he approached several SIUs and suggested that a million-dollar budget could "launch a successful suit."
"The answer I got from them was a very-affirmative 'yes," said Maxant. If the companies feel the same now a decade later, "we can at least get a letter of support" from the Ayer companies.
Conley suggested the board consider its legal options in executive session, which was held Tuesday night."We have to file our legislation pretty quick," said Conley.
"Yesterday," said Luca, amplifying the need for swift action.
Conley moved that the selectmen discuss the matter in closed session and then invite the Littleton selectmen and town administrator and the town's main SIUs to "strategize to consider an injunction." Conley added, "I don't think we should do it piecemeal." Town Administrator Robert Pontbriand was tasked with drafting a letter for all interested entities to "sign on with us."
Maxant offered an enthusiastic second, saying it's a "shot across the bow" to Pan Am. The measure passed 4-0, with Selectman Jim Fay absent.