W.K. Macnamara Corporation
 

The Devens Enterprise Commission acting as the Board of Health of the Devens Regional Enterprise Zone ("the DEC" ), held a public hearing, upon due notice, on the application of W.K. Macnamara Corporation ("Applicant") for a site assignment for a Construction & Demolition Material Recycling Facility ("the Facility") to be located at Lot 9A, Independence Drive, Devens, Massachusetts (the "Application"). By a vote taken on January 31, 2006 and after considering the record of the hearing, and subject to the conditions set forth below, the DEC has determined that the siting of the Facility on property located at Lot 9A, Independence Drive, in the Devens Regional Enterprise Zone ("the Site") will not constitute a danger to the public health, safety or the environment and therefore grants the site assignment. The DEC finds that it is necessary to impose certain conditions as set forth in this decision to ensure the protection of public health, safety, and the environment, taking into account the specific siting criteria which the DEC applied in this proceeding.

THE PROPOSED FACILITY

The Applicant proposes to develop a construction and demolition material recycling facility, with both truck and rail service. The Facility will be located on an approximately 11-acre parcel on Independence Drive in the West Rail Industrial Park which is in the Devens Regional Enterprise Zone. The project will involve the construction of approximately 90,000 square feet of structures, which structures will include material processing and office space, an educational center and associated parking areas and a railroad spur line from the Boston and Maine rail line to the Site. Access to the Site will be via paved roads from Independence Drive. ESS, Site Suitability Report Application, DEP Transmittal No. W 066335, p. 1 (the Application").

The Facility, will be able to receive up to 1500 tons per day. It will receive construction and demolition materials from Devens and the surrounding region, which materials will be transported to the Facility by trucks or rail and sorted in the Facility to facilitate the recycling of the materials. All processing will take place within the enclosed Facility. The Application, p.1. The plans for the Facility, including the Site Layout Plan, the Land Use Site Plan, and the Water Resources Site Plan are part of the Application. Application, Figures 2, 3 and 4. The Facility will accept construction and demolition material for sorting and recycling, including wood, asphalt shingles, corrugated paper, metals, brick and concrete. The Facility will not accept putrescible materials. Application, p.5.

PROCEDURES

On July 20, 2005 the Applicant submitted to the Department of Environmental Protection ("DEP") a Site Suitability Report Application DEP Transmittal #W 066335 for the development of the Facility (which report is dated July 18, 2005). On September 29, 2005 the Applicant filed its Single Environmental Impact report EOEA File No. 9116, which report was approved by the Secretary of the Executive Office of Environmental Affairs on November 14, 2005. The DEP issued its Notice of Administrative Completeness on August 1, 2005. The DEP issued its determination of technical completeness and positive site suitability report on December 12, 2005.

The DEC hired attorney Ed Selig as the hearing officer for the hearing, caused the hearing to be duly posted and published in accordance with 310 CMR 16.20(7). The site assignment hearing commenced on January 10, 2006 and closed that same night, except that the hearing officer ordered the record to be held open for seven days for purposes of allowing the Applicant to submit a list of site suitability conditions which it found acceptable. The DEC heard testimony from the Applicant and its consultants and from the DEC's consultants.

On January 31, 2006, at a duly posted meeting, the DEC deliberated on the Application and voted to issue the site assignment, subject to the conditions listed below.

STANDARD FOR DECISION

As set forth in 310 CMR16.20(10(k)(2) a board of health shall determine that a site is suitable for assignment as a site for a new solid waste facility unless it makes a finding, supported by the record of the hearing, that the siting thereof would constitute a danger to the public health, safety or environment, based on the siting criteria set forth and established under 310 CMR 16.40.

FINDINGS CONCERNING SITE SUITABILITY CRITERIA

In the following section, the DEC sets forth its findings, based upon the Application and the evidence in the Record of this proceeding, with respect to the compliance of the Site with the specific site suitability criteria for a solid waste handling facility set forth in 310 CMR 16.40(3)(d), the general site suitability criteria set forth in 310 CMR 16.40(4), the DEC siting criteria set forth at 974 CMR 8.03(2) and the siting criteria set forth in MGL c. 150A ½.

I. Compliance with Specific Site Suitability Criteria for Solid Waste Handing Facilities (310 CMR 16.40(3)(d))

A. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the waste handling area would be within the Zone I of a public water supply.

The Record contains evidence demonstrating that the Zone I of the closest public water supply well to the Site, Grove Pond Well #1, is approximately 2,300 feet to the east-northeast of the Site, placing it far outside the waste handing area of the proposed facility. See, e.g., Application at p. 8 and Figure 3; Vollmer Report at p. 2. Both the Applicant and DEC's consultant agree that the waste handling area would be outside any Zone I of a public water supply. As a result, the DEC finds that the Site complies with this siting criterion.

B. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the waste handling area would be within the Interim Wellhead Protection Area (IWPA) or a Zone II of an existing public water supply well within a proposed drinking water source area, provided that the documentation necessary to obtain a source approval has been submitted prior to the earlier of either the site assignment application, or if the MEPA process does apply, the Secretary's Certificate on the Environmental Notification Form or Notice of Project Change, or where applicable, the Secretary's Certificate on the EIR or Final EIR, unless restrictions are imposed to minimize the risk of an adverse impact to the groundwater; and either (a ) the proponent can demonstrate to the satisfaction of the Department that the facility cannot reasonably be sited outside the IWPA or Zone II; or (b) there would be a net environmental benefit to the groundwater by siting the facility within the Zone II or the IWPA where the site has been previously used for solid waste management activities.

The Record contains evidence demonstrating that the Zone II for the Grove Pond Wells is located no less than 390 feet from the entrance to the Site, placing the waste handling area of the Site outside the Zone II for the Grove Pond Wells and any other nearby wells. See, e.g., Application at p. 8 and Figure 3; Vollmer Report at p. 2. Both the Applicant and the DEC's consultant agree that the waste handling area would be outside any Zone II or Interim Wellhead Protection Areas of a public water supply. As a result, the DEC finds that the Site complies with this siting criterion.

C. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the waste handling area would be within the Zone A of a surface drinking water supply.

The Record contains evidence demonstrating that the closest surface drinking water supply to the Site is Nagog Pond located almost 8 miles to the southeast of the Site. See, e.g., Application at p. 8 and Figure 3. Both the Applicant and the DEC's consultant agree that the waste handling area would not be within the Zone A of that drinking water supply. See Vollmer Report at p. 2. As a result, the DEC finds that the Site compiles with this siting criterion.

D. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the waste handling area would be within 500 feet upgradient, and where not upgradient, within 250 feet, of an existing or potential private water supply well existing or established as a Potential Private Water Supply at the time of submittal of the application, provided however, the applicant may show a valid option to purchase the restricted area including the well and a guarantee not to use the well as a drinking water source, the exercise of which shall be a condition of any site assignment.

The Record contains evidence demonstrating that the solid waste handling area is not located within 500 feet upgradient, or otherwise within 250 feet, of an existing or potential private water supply well existing or established as a Potential Private Water Supply at the time this decision was written. The closest known private drinking water supply well is at Red Tail Golf Course, located approximately 4,500 feet from the proposed entrance to the Site. See, Water Resources Protection District CAD drawing, VA Report, page 2. Both the Applicant and the DEC's consultant have agreed that the waste handling area of the Site is not within 500 feet upgradient or otherwise within 250 feet of that well. See Vollmer Report at p. 4. As a result, the DEC finds that the Site complies with this siting criterion.

E. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the waste handling area of a transfer station that proposes to receive more than 50 tons per day of solid waste is 500 feet from (i) an occupied residential dwelling or (ii) a prison, health care facility, elementary school, middle school or high school, children's preschool, licensed day care center, or senior center or youth center, excluding equipment storage or maintenance structures.

The Record contains evidence demonstrating that there is no prison, health care facility, licensed day care center, senior center or youth center within one-half mile of the Site. See, e.g., Application at p. 9; Vollmer Report at pp. 2-3. The closest school is the Francis W. Parker Charter School located approximately 2,000 feet to the west of the Site. Id. The closest residences are located a similar distance to the west. Id. The Applicant and the DEC's consultant agreed that the prison-owned maintenance facility at Devens is not operated as a prison. See Vollmer Report at p. 3. The Applicant and the DEC's consultant agree that there are no such facilities within 500 feet of the waste handling area of the Site. As a result, the DEC finds that the Site complies with this siting criterion.

F. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the waste handling area would be within the Riverfront Area as defined at 310 CMR 10.00.

The Record contains evidence demonstrating that the closest Riverfront Area is associated with Willow Branch and is located nearly one-half mile to the west of the Site. See, e.g., Application at p. 9 and Figure 3. Both the Applicant and the DEC's consultant agree that the waste handling area of the Site would not be within a Riverfront Area. See id.; Vollmer Report at p. 3. As a result, the DEC finds that the Site complies with this siting criterion.

G. No site shall be determined to be suitable or be assigned as a solid waste handling facility where the maximum high groundwater table would be within two feet of the ground surface in areas where waste handling is to occur unless it is demonstrated that a two-foot separation can be designed to the satisfaction of the Department.

The Record contains evidence demonstrating that the Applicant performed sub-surface investigations of the Site, including the installation of monitoring wells, and determined that the depth to groundwater was in excess of 25 feet. See, e.g., Application at pp. 9-10. Both the Applicant and the DEC's consultant agree that the maximum high groundwater table will not be within two feet of the ground surface on the Site. See Vollmer Report at p. 3. Consequently, the DEC finds that the Site complies with this siting criterion.

II. Compliance with General Site Suitability Criteria for Solid Waste Management Facilities (310 CMR 16.40(4))

A. Agricultural Lands. No site shall be determined to be suitable or be assigned as a solid waste management facility where:

1. the land is classified as Prime, Unique, or of State and Local Importance by the United States Department of Agriculture, Natural Resources Conservation Service; or
2. the land is deemed Land Actively Devoted to Agricultural or Horticultural Uses, except where the facility is an agricultural composting facility; and
3. a 100-foot buffer would not be present between the facility and those lands classified at 310 CMR 16.40(4)(a)1. or 2.

The Record contains evidence demonstrating that the Site is not classified as Prime, Unique, or of Local Importance by the U.S. Department of Agriculture, Natural Resources Conservation Service or deemed Land Actively Devote to Agricultural or Horticultural Uses, and that the closest private agricultural land is located 1.3 miles to the east of the Site, while the closest designated horticultural lands are Holy Hill and Westward Orchards, each approximately 2 miles from the Site. See, e.g., Application at p. 10. The Site is not within (or within 100 feet of) the designated agricultural lands. Both the Applicant and the DEC's consultant agree that the Site meets this criterion. See Vollmer Report at p. 3. As a result, the DEC finds that the Site complies with this siting criterion.

B. Traffic and Access to the Site. No site shall be determined to be suitable or be assigned as a solid waste management facility where traffic impacts from the facility operation would constitute a danger to the public health, safety, or the environment taking into consideration the following factors:

1. traffic congestion;
2. pedestrian and vehicular safety;
3. road configurations;
4. alternate routes; and
5. vehicle emissions

The Record contains evidence demonstrating that the Site will not create traffic impacts that will constitute a danger to the public health, safety, or the environment taking into consideration each of the factors listed above, (See, e.g., Application at pp. 10-13; Single Environmental Impact Report at §§ 5.1, 5.2, and 9.4; Affidavit of Eric B. Eby, P.E.; Affidavit of Peter H. Guldberg, CCM at 6(a)), and contains evidence of an analysis of traffic impacts from the proposed project that identifies no significant concerns with traffic congestion, pedestrian or vehicular safety, road configurations, haul routes, and vehicle emissions. See id. Both the Applicant and DEC's consultant agree that the Site meets this criterion. See Vollmer Report at pp. 3-7. As a result, the DEC finds that the Site complies with this siting criterion.

C. Wildlife and Wildlife Habitat. No site shall be determined to be suitable or be assigned as a solid waste management facility where such siting would:

1. have an adverse impact on Endangered, Threatened, or Special Concern species listed by the Natural Heritage and Endangered Species Program of the Division of Fisheries and Wildlife in its database;
2. have an adverse impact on an Ecologically Significant Natural Community as documented by the Natural Heritage and Endangered Species Program in its database; or
3. have an adverse impact on the wildlife habitat of any state Wildlife Management Area.

The Record contains evidence demonstrating, through review of the 2003 Natural Heritage Atlas and the Botanical Survey Report and consultations with staff at the Massachusetts Natural Heritage and Endangered Species Program and U.S. Fish and Wildlife Service, that the siting would not have an adverse impact on (i) Endangered, Threatened, or Special Concern species listed by the Natural Heritage and Endangered Species Program of the Division of Fisheries and Wildlife in its database and (ii) an Ecologically Significant Natural Community as documented by the Natural Heritage and Endangered Special Program in its database, or (iii) the wildlife habitat of any state Wildlife Management Area. See, e.g., Application at pp. 13-15; Single Environmental Impact Report at Appendix D. Both the Applicant and DEC's consultant agree that the Site meets this criterion. See Vollmer Report at p. 7. As a result, the DEC finds that the Site complies with this siting criterion.

D. Areas of Critical Environmental Concern. No site shall be determined to be suitable or be assigned as a solid waste management facility where such siting:

1. would be located within an Area of Critical Environmental Concern (ACEC), as designated by the Secretary of the Executive Office of Environmental Affairs; or
2. would fail to protect the outstanding resources of an ACEC as identified in the Secretary's designation if the solid waste management facility is to be located outside, but adjacent to the ACEC.

The Record contains evidence demonstrating that the nearest ACEC to the Site is the Squannassit ACEC, which is located approximately 1,300 feet to the north and northeast. See, e.g., Application at p. 15 and Figure 4. As a result, the Applicant and the DEC's consultant agree that the Site is not within an ACEC. The Record contains evidence that the only potential adverse impact of the Facility and the Site on the ACEC is associated with stormwater runoff and contamination. These potential impacts should be mitigated in the Storm Water Pollution Prevention Plan and the design and implementation of stormwater best management practices. See Application at pp. 15-16. Both the Applicant and the DEC's consultant agree that the Site is not within an ACEC and will not fail to protect the Squannassit ACEC's outstanding resources. See Vollmer Report at p. 8. Consequently, the DEC finds that the Site complies with this siting criterion.

E. Protection of Open Space. No site shall be determined to be suitable or be assigned as a solid waste management facility where such siting would have an adverse impact on the physical environment of, or on the use and enjoyment of:

1. state forests;
2. state or municipal parklands or conservation land, or other open space held for natural resource purposes in accordance with Article 97 of the Massachusetts Constitution;
3. MDC reservations;
4. lands with conservation, preservation, agricultural, or watershed protection restrictions approved by the Secretary of the Executive Office of Environmental Affairs; or
5. conservation land owned by private non-profit land conservation organizations and open to the public.

The Record contains evidence demonstrating that the closest areas to the Site that fall within the categories specified above are Pirone Park (which is located more than one-half mile to the northeast of the Site on the opposite side of Grove Pond), Phelps Park (which is located more than one-half mile to the east of the Site on the southern shore of Grove Pond), and the Nashua River Conservation Land (which is located more than one-half mile to the northwest of the Site). See, e.g., Application at pp. 16-17, Table 1, and Figure 4. Record evidence also indicates that the facility and its operations will not have impacts to the environment or enjoyment of these protected areas. Id. The Applicant and the DEC's consultant agree that the Site meets this criterion. See Vollmer Report at p. 8. As a result, the DEC finds that the Site complies with this siting criterion.

F. Potential Air Quality Impacts. No site shall be determined to be suitable or be assigned as a solid waste management facility where the anticipated emissions from the facility would not meet required state and federal air quality standards or criteria or would otherwise constitute a danger to the public health, safety or the environment, taking into consideration:

1. the concentration and dispersion of emissions
2. the number and proximity of sensitive receptors; and
3. the attainment status of the area.

The Record contains evidence demonstrating that the anticipated emissions from the Site will meet state and federal air quality standards or criteria, taking into account each of the factors listed above. See, e.g., Application at pp. 17-19; Affidavit of Peter H. Guldberg, CCM; Air Quality Study for the W.K. Macnamara C&D Material Recycling Facility, Devens, Massachusetts (dated December 5, 2005) ("Air Quality Study"). The Record also contains evidence demonstrating that the Air Quality Study was performed in accordance with the DEP requirements and industry standards. Both the Applicant and the DEC's consultant agree that the anticipated emissions from the Facility will meet applicable standards and will not constitute a danger to public health, safety, or the environment. See Vollmer Report at pp. 8-11. Consequently, the DEC finds that the Site complies with this siting criterion.

G. Potential for the Creation of Nuisances. No site shall be determined to be suitable or be assigned as a solid waste management facility where the establishment or operation of the facility would result in nuisance conditions which would constitute a danger to the public health, safety or the environment taking into consideration the following factors:

1. noise;
2. litter;
3. vermin such as rodents and insects;
4. odors;
5. bird hazards to air traffic; and
6. other nuisance problems.

The Record contains evidence demonstrating that neither the establishment nor operation of the Facility will result in nuisance conditions that would constitute a danger to the public health, safety, or the environment taking into the factors detailed above. See, e.g., Application at p. 19; Sound Study for the W.K. Macnamara C&D Material Recycling Facility, Devens, Massachusetts (dated November 21, 2005) ("Sound Study"); Affidavit of Peter Guldberg, CCM. With respect to noise, the Record contains the Sound Study performed by Applicant's consultants. The Applicant and the DEC's consultant have agreed that the Facility will not cause a nuisance that would constitute a danger to the public health, safety, or the environment with respect to noise. The Record also contains evidence relative to the other five factors demonstrating that no nuisance conditions that would constitute a danger to the public health, safety, or the environment will be created with respect to these concerns. See, e.g., Application at p. 19. Both the Applicant and the DEC's consultant have determined that with respect to these factors the Facility will not result in nuisance conditions that constitute a danger to the public health, safety, or environment. See Vollmer Report at pp. 13-14. As a result, the DEC finds that the Site complies with this siting criterion.

H. Size of Facility. No site shall be determined to be suitable or be assigned as a solid waste management facility if the size of the proposed site is insufficient to properly operate and maintain the proposed facility. The minimum distance between the waste handling area or deposition area and the property boundary shall be 100 feet, provided that a shorter distance may be suitable for that portion of the waste handling or deposition area which borders a separate solid waste management facility.

The Record contains evidence demonstrating that the size of the Site is sufficient to properly operate and maintain the Facility and that the minimum distance between the waste handling area and the property boundary shall be at least 100 feet. See, e.g., Application at p. 20. The Record demonstrates that the 90,000-square-foot Facility is proposed for a Site of approximately 11 acres. The Applicant and the DEC's consultant have agreed that the size of the Site is sufficient to properly operate and maintain the Facility. In addition, the Record contains evidence demonstrating that the distance between the property boundary and the waste handling area shall be at least 100 feet. See, e.g., Application at pp. 19-20; Correspondence from ESS Group, Inc. regarding Vollmer Associates Report (dated December 30, 2005 and marked as Exhibit 13 at the Hearing). Both the Applicant and the DEC's consultant agree that the required 100-foot distance will be maintained. See Vollmer Report at p. 14. As a result, the DEC finds that the Site complies with this siting criterion.

I. Areas Previously Used for Solid Waste Disposal. Where an area adjacent to the site of a proposed facility has been previously used for solid waste disposal the following factors shall be considered by the Department in determining whether a site is suitable and by the board of health in determining whether to assign a site:

1. the nature and extent to which the prior solid waste activities on the adjacent site currently adversely impact or threaten to adversely impact the proposed site;
2. the nature and extent to which the proposed site may impact the site previously used for solid waste disposal; and
3. the nature and extent to which the combined impacts of the proposed site and the previously used adjacent
4. adversely impact on the public health, safety and the environment; taking into consideration:

The Record contains evidence demonstrating that the Shepley's Hill Landfill located adjacent to the Site will not adversely affect the Site, the Facility will not adversely affect the landfill, and the combined impacts of the Facility and Shepley's Landfill will not adversely impact public health, safety, and the environment. Record evidence demonstrates that the Site is bordered on the north by the now-closed and capped Shepley's Hill Landfill, see, e.g., Application at p. 20, groundwater from the landfill flows away from the Site toward the north, any Site runoff will be contained and channeled in the stormwater detention basin and conveyance system, which has been designed not to impact the groundwater flow of the area, and the construction and operation of the facility will not impact Shepley's Hill Landfill in any way. Record evidence also demonstrates that the Site is also sufficiently distant from the landfill to not impede any landfill remediation activities, including improvements to the landfill cap. Both the Applicant and the DEC's consultant agree that Shepley's Landfill will not adversely impact the Site, the Site will not adversely impact Shepley's Landfill, and the combined impacts of the proposed facility and Shepley's Landfill will not adversely impact public health, safety, and the environment. See Vollmer Report at pp. 14-15. As a result, the DEC finds that the Site complies with this siting criterion.

J. Existing Facilities. In evaluating proposed sites for new solid waste management facilities the Department and the board of health shall give preferential consideration to sites located in municipalities in which no existing landfill or solid waste combustion facilities are located. This preference shall be applied only to new facilities which will not be for the exclusive use of the municipality in which the site is located. The Department and the board of health shall weigh such preference against the following considerations when the proposed site is located in a community with an existing disposal facility:

1. the extent to which the municipality's or region's solid waste needs will be met by the proposed facility; and
2. the extent to which the proposed facility incorporates recycling, composting or waste diversion activities.

The Record contains evidence that there are no currently operating landfills or waste incinerators in the communities surround the proposed project. See, e.g., Application at p. 20. In addition, Record demonstrates that there are no construction and demolition material recycling facilities within any of the communities around Devens. Both the Applicant and the DEC's consultant agree that the Site meets the requirements of this criterion. See Vollmer Report at p. 15. As a result, the DEC finds that the Site meets this siting criterion in that the DEC has given preferential consideration to the siting of this Facility.

K. Consideration of Other Sources of Contamination or Pollution. The determination of whether a site is suitable and should be assigned as a solid waste management facility shall consider whether the projected impacts of the proposed facility pose a threat to public health, safety or the environment, taking into consideration the impacts of existing sources of pollution or contamination as defined by the Department, and whether the proposed facility will mitigate or reduce those sources of pollution or contamination.

The Record contains evidence that the projected impacts from the proposed use of the Facility will not pose a threat to public health, safety, or the environment, taking into consideration the impacts of existing sources of pollution or contamination. The Record demonstrates that the closed Shepley's Hill Landfill will not adversely impact the Site and that the Site and its operations will not adversely impact Shepley's Hill Landfill. See, e.g., Application at p. 20. Both the Applicant and the DEC's consultant agree that impacts from the the Facility will not pose a threat to public health, safety, or the environment, taking into consideration the impacts of existing sources of pollution or contamination. See Vollmer Report at pp. 15-17. As a result, the DEC finds that the projected impacts of the Facility do not pose a threat to public health, safety, or the environment taking into consideration the impacts of existing sources of pollution or contamination and that the Site meets this siting criterion.

L. Regional Participation. The Department and the board of health shall give preferential consideration to sites located in municipalities not already participating in a regional disposal facility. The Department and the board of health shall weigh such preference against the following considerations when the proposed site is located in a community participating in a regional disposal facility:

1. the extent to which the proposed facility meets the municipality's and the region's solid waste management needs; and
2. the extent to which the proposed facility incorporates recycling, composting, or waste diversion activities.

The Record contains evidence that the proposed project is necessary for the management of the Devens area's future construction and demolition recycling needs as well as the broader needs of the community as regulations regarding waste separation and recycling are implemented. Record evidence demonstrates that the community does not participate in a regional disposal facility. Both the Applicant and the DEC's consultant agree that the Site meets the requirements of this criterion. See Vollmer Report at p. 17. As a result, DEC finds that the Site meets this siting criterion and must be granted preferential consideration for site assignment.

III. Compliance with DEC Siting Criteria (974 CMR 8.03(2))

A. If the DEC finds that topography, vegetation, or other natural features, or existing structures do not produce sufficiently protective conditions, including visual screening and/or necessary environmental mitigation, the DEC may require separation (from the solid waste facility to sensitive receptors) or other dimensional requirements that are more stringent than those set forth in 310 CMR 16.00.

The Record contains evidence that the topographical, vegetative, and other natural features as well as the existing structures provide sufficiently protective conditions, including visual screening; with respect to sensitive receptors. See Vollmer Report at p. 18. As a result, the DEC finds that the Site meets this siting criterion.

Minimum separation or other dimensional requirements shall be measured from the closest edge of a waste deposition area, in the case of a landfill, to the closest point of the sensitive receptor. In the case of a processing or combustion facility, the measurement shall be from the closest edge of the principal structure to the closest point of the sensitive receptor.

The Record contains evidence that the Facility meets this criterion using the measurement methodology required by 310 CMR 16.40. See, e.g., Application at pp. 8-21. Both the Applicant and DEC's consultant agree that the Site meets this criterion. See Vollmer Report at p. 18. As a result, the DEC finds that the Site meets this siting criterion.

B. The criteria set forth on Chapter 111, Section 150A ½,

The Record contains evidence that the criteria set forth in G.L. c. 111, § 150A ½, are met. Both the Applicant and DEC's consultant agree that the Site meets this criterion. See Vollmer Report at pp. 17-18. As a result, DEC finds that the Site meets this siting criterion.

CONDITIONS FOR SITE ASSIGNMENT

As used in the conditions set forth below:

"Applicant" means W. K. Macnamara Corporation, its successors and assigns. Applicant also includes a designee, so that a condition that requires that the Applicant perform, means that the Applicant, while retaining responsibility for that performance, may cause someone else to perform it.

"DEC" includes the Devens Enterprise Commission, and its successors.

1. The Facility shall be completely enclosed with all recycling operations being conducted within the building.
2. The Applicant shall maintain the Facility in compliance with 974 CMR 8.03 (3) of the DEC Regulations.
3. The Applicant shall obtain all necessary permits, approvals and modifications prior to the commencement of operations.
4. Prior to commencement of operations and thereafter, the Facility shall comply with all applicable OSHA requirements.
5. The Applicant shall train employees as necessary, on the safe operation of the equipment that they operate or maintain on the Facility.
6. The DEC shall have the right to perform unscheduled inspections of the Facility during operational hours or at any reasonable time requested by the DEC, for purposes of confirming compliance with the conditions of this Site Assignment.
7. The Facility shall have fire suppression systems that meet the applicable Massachusetts Building Code and the requirements of the Devens Fire Department in existence upon the issuance of the building permit.
8. The Facility shall accept no more than 1500 tons per day of solid waste materials.
9. The Facility shall not knowingly accept hazardous, chemical, medical, radioactive, or other special waste as defined by the Department of Environmental Protection. The Applicant shall provide or cause to be provided prompt (no more than within 24-hours of discovery) notification to the DEC and the DEP of receipt of any prohibited material in accordance with this Site Assignment and 310 CMR 19.207(9).
10. This Facility shall not accept septage waste.
11. This Facility shall follow and enforce all stormwater management conditions approved as part of this Application or as required by law.
12. As described in the Application, all doors to the Facility shall be closed except when it is necessary for a truck to enter or leave the building, for maintenance purposes, or for pedestrian and rail access and egress.
13. The Applicant shall promptly repair any building damage that compromises the performance or ability of the Facility to contain noise and fugitive dust.
14. High performance particulate filters shall be maintained and replaced in accordance with manufacturer's specifications and/or Facility test demonstrations.
15. The Applicant shall take or cause to be taken, those measures necessary to prevent littering and/or the accumulation of debris on the site, any sidewalk, public way, or adjacent property including but not limited to maintaining adequate staff to ensure compliance with this condition.
16. The contents of any truck or other vehicle (including rail cars) using the Facility to deliver or remove solid waste and recyclables shall be covered either by a canvas tarpaulin or other equivalent method to ensure that all materials are covered.
17. Prior to commencement of operations the Applicant shall retain the services of a professional pest controller or other such professional licensed in the Commonwealth of Massachusetts and provide a copy of the contract to the DEC. The contract shall require the firm to inspect the site for vermin, including but not limited to birds, rats, and insects at least once per year and if evidence of same exists, to notify the DEC and to undertake appropriate actions to eliminate the vermin immediately.
18. The Applicant shall not store recyclables on-site for more than one hundred and eighty (180) consecutive days.
19. The Applicant shall instruct all truck traffic traveling to and from the Facility to use the preferred truck route (Jackson Gate from Route Two shall be the primary means of truck access to and from the site on a permanent basis, with other gates to be used only in an emergency situation when Jackson is unavailable). The Applicant shall use Jackson Gate to the maximum degree feasible and shall take measures to monitor and control truck access/egress, except to the extent modified by the DEC, or by any public safety agency (e.g., in an emergency).
20. In accordance to 974 CMR 8.03, vehicular traffic shall not be allowed to park or queue outside the bounds of the Site.
21. Overnight queuing of trucks is not permitted on the Site access road.
22. In accordance to 974 CMR 8.03, no vehicle shall be left in an idling state within the Site for more than one (1) hour, with (ten) 10 minutes being typical.
23. Hours of operation for receiving and processing materials in the facility and on the site of the Facility shall be from 7 AM to 5 PM Monday-Friday with no deliveries accepted outside of these hours. The loading or unloading of railroad cars shall be limited to the same hours of operation as vehicles. Delivery of railroad cars is not restricted by these conditions. These hours of operation shall not be increased without the advance written approval of the DEC.
24. All floor drains in the Facility and on the Site shall be kept free and clear of debris.
25. The DEC may modify, suspend or terminate this Site Assignment in accordance with the provisions of M.G.L. c. 111, Section 150 A, 310 CMR 16.22 and 974 CMR 8.03 for failure to comply with the conditions described herein, and further, in its discretion, may take any other enforcement or remedial action available in law or equity.
26. The Applicant shall submit for review and approval by the DEC both the operations and maintenance plan and the Facility's Asbestos and Hazardous Materials Inspection Protocol prior to issuance of a certificate of occupancy.
27. Prior to issuance of a certificate of occupancy, the Applicant shall provide the DEC with sample (they may be redacted) hauling (truck) contract(s) language demonstrating that the haulers have been advised of the Devens designated truck route and said contract(s) are subject to revocation upon repeated non-use of said route.
28. This Site Assignment shall take effect when executed by all signatories and recorded in the Middlesex County Registry of Deeds and after a certified copy of the same from the Registry of Deeds is provided to the DEC, with all recording fees and charges paid by the Applicant.
29. Prior to the grant of a Unified Permit, the Applicant shall demonstrate, to the satisfaction of the DEC, compliance with 310 CMR 16.40(4)(h).

    RIGHT OF APPEAL

    Any person aggrieved by this decision may, within thirty (30) days of publication of the Notice of Decision, appeal under the provisions of G.L. c. 30A, § 14.

    DEVENS ENTERPRISE COMMISSION Signatures  

    ______________________________
    William P. Marshall, Chairman

    ______________________________
    Paul von Loesecke, Vice Chairman

    ______________________________
    Bonnie Biocchi

    ______________________________
    William Castro

    ______________________________
    James DeZutter

    ___________________________
    Ed Hamilton

    ______________________________
    Paul Johnston

    ______________________________
    Lisa McLaughlin

    ______________________________
    Martin Poutry

    Dated this 31st day of January 2006

     

    RECORD OF EXHIBITS*

    Exhibit #	Document
    1	Notice of Project Change for Construction & Demolition Material Recycling Facility by ESS Group, Inc. (February 15, 2005)
    2	Correspondence from ESS Group, Inc. Regarding Proof of Public Notifications (September 27, 2005)
    3	Single Environmental Impact Report for Construction & Demolition Material Recycling Facility by ESS Group, Inc. (September 29, 2005)
    4	Site Suitability Report Application for Construction & Demolition Material Recycling Facility by ESS Group, Inc. (July 18, 2005)
    5	Certificate of the Secretary of Environmental Affairs on the Supplemental/Single Environmental Impact Report (November 14, 2005)
    6	Determination of Technical Completeness/Site Suitability Report for the W.K. Macnamara Corporation Construction & Demolition Material Recycling Facility (December 12, 2005)
    7	Proof of Public Notice of Site Assignment Hearing Under 310 CMR 16.20(7)(b) (various dates)
    8	Affidavit of Dammon M. Frecker (December 30, 2005)
    9	Affidavit of Peter H. Guldberg, CCM (December 13, 2005)
    10	Affidavit of Eric B. Eby, P.E. (December 21, 2005)
    11	Sound Study for the W.K. Macnamara C&D Material Recycling Facility, Devens, Massachusetts (November 21, 2005)
    12	Air Quality Study for the W.K. Macnamara C&D Material Recycling Facility, Devens, Massachusetts (December 5, 2005)
    13	Correspondence from ESS Group, Inc. regarding Vollmer Associates Report (December 30, 2005)
    14	Correspondence from Southern Container Corp. (November 17, 2005)
    15	Affidavit of John T. Hannigan, P.E. (January 3, 2006)
    16	Affidavit of Douglas L. Sheadel (January 3, 2006)
    17	Report of Vollmer Associates LLP - C&D Material Recycling Facility - Lot 9A, Independence Drive (January 3, 2006)
    18	Applicant's Response to Proposed Conditions (January 13, 2006)

    *Exhibits 1-17 were submitted during the hearing, # 18 was submitted after the hearing and pursuant to the order of the Hearing Officer.

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