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PHILIP G. COATES FEB ,� O je,
DIRECTOR C D J. v0 (508) 282-0308
Salem PlIsnn,:l® Dept.
February 9, 1998
Salem Conservation Commission
City of Salem
One Salem Green
Salem, MA 01970
Dear Commission Members :
Upon your request I am responding to questions regarding the
storage of commercial barges on the tide flats at the upper end of
the North River, Salem. Having worked at the Cat Cove Marine
Laboratory for most of the previous decade, I am familiar with the
practice in question and of the local marine resources .
I looked into the issue from a permitting standpoint and did
not get a definitive answer on whether a state or federal permit is
needed in this case. The Commonwealth' s Wetlands Protection Act
requires a permit for projects that result in -alterations to
intertidal wetlands . This use may qualify as an alteration. I
encourage you to seek clarification from the Massachusetts
Department of Environmental Protection on this question. As for
federal jurisdiction, the U. S . Army Corps of Engineers also require
permits for projects that alter habitats in navigable waterways .
If the barges are secured to moorings then it must be in a mooring
field permitted by the U. S . Army Corps of Engineers . It is my
understanding that no permits are held by the barge owner and the
use of the flats are supposed to be of short duration. The length
of the time the barges are stored on the flats may be a critical
issue for regulating this practice because impacts will become
obvious during long-term groundings .
From an ecological perspective, the issue is easier to
address . The chronic grounding of large vessels should be avoided
because the grounding will limit the productivity of underlying
intertidal habitat . The extent of the impact will depend on the
size of the barge and duration of the grounding in relation to the
tide cycle . Tidal flats have a high density of marine
invertebrates (clams, worms, crustaceans, ect . ) that need to
respire to support metabolic processes even during low tides when
no water is present . Large objects such as barges will cause
Y
4
2
mortality to many types of organisms by direct physical damage,
degrading essential habitats, and restricting respiration. If the
barge is tethered to allow some movement then the impacts may
extend beyond that caused by just the surface area of the barge
hull . Another cause of concern is the potential for pollutants to
leach off the barge to the flats .
The intertidal habitat of the North River contains soft shell
clams and marine worms that are important components of local food
chains . Species of high commercial and recreational value such as
waterfowl, striped bass and winter flounder visit these habitats to
feed on sea worms, clam ciphons, and crustaceans . Many other less
well known organisms depend on the tide flats for feeding or
shelter opportunities . Collectively, valuable public resources
are found living at or visiting these intertidal habitats, and
efforts should be made to minimize unnecessary impacts .
In my experience, most communities along Massachusetts Bay do
not allow this practice except for emergency or short term use. I
recommend that alternative storage locations are found for the
North River barges . It should be possible to find commercial
wharfage or mooring space in the region to store the barges between
jobs . Thank you for the opportunity to comment . If you have any
questions please do not hesitate to call .
Sincerely,
Bradford C. Chase
Marine Fisheries Biologist
978-282-0308 x111
CC :
W. Leigh Bridges, Asst . Dir. , MDMF
Steve Dibble, Asst . Planner, Salem
310 CMR 10. 99 DEP Fite No. 64-.24-9
Form 9 - (To be Provided by DEP)
Salem
City/Toto
APpticmt Burnham Associates, Inc
Commonwealth
of Massaobusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, 540
Issuing Authority
From
To Burnham Associates, Inc. 26 Dearborn Street
October 10, 1996
Date of Issuance -
Property lot/parcel number, address 70A North Street
Extent and type of activity: Shoreline disturbance,possible dredging, and
storage of barges, crane, and equipment.
The Commission has determined that the activity described
above is in violation of the Wetlands Protection Act,' G.L.. c. 131, 440, and
the Regulations promu.�gated pursuant thereto, 310 CMR 10.00, because:
® Said activity has been/is being conducted without a valid Order of
Conditions.
said activity has been/is being conducted in violation of an Order of
dated
Conditions issued to
File number Condition numbers)
0 Other (specify)
The Commission hereby orders the following:
® The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
Effective 11/10/89 9"1
Commission
Issued by Salem Conservation Commiss ' n
�I completed a2plication forms and plans as required by the Act and
s
Regulations shall be filed with the (date) ,
on or before
and no further work shall be performed until a public hearing has been held
and an order of Conditions has been issued to regulate said work.
Application forms are available at:
(� The property owner shall take every reasonable step to prevent further
violations of the act.
® Other' (specify)
The property owner oC its agent is requested to appear
before the Commission to discuss ongoing activity on and adjacent t(
the parcel. Failure to appear before the Commission may result in
a fine of not more than $200.00 each day or portion thereof during
which a violation continues shall constitute a separate offense:
if more than one, each condition violated shall constitute a
separate offense.
Failure to comply with this order may constitute grounds for legal action,
Massachusetts General Laws Chapter 131, section 40 provides:
Whoever violates any provision of this section
ndshallall be punished
by a fine of not more than twenty-five day or
or by
imprisonment for not more than
Years
sor both,
Each Each a separate
portion thereof of continuing violation
offense.
Questions regarding this Enforcement order should be directed to�
Stephen Dibble Conse
Issued by Sale Conserva ion Commission
Signature(
(Signature of delivery person
or certified mail number)
9-2b
I
i
BURNHAM ASSOCIATES INC.
Marine Contractors • Engineers
OCT 2 31996; October 21, 1996
Stephen Dibble
Conservation Commission Agent
Salem Conservation Commission
One Salem Green
Salem, Massachusetts 01970
Re: 70A North Street
Dear Mr. Dibble:
Burnham Associates, Inc. is in receipt of an "Enforcement Order" dated
October 10, 1996 concerning the above referenced property. There are no
violations of the Wetlands Protection Act occurring at the property. Further,
any conduct or activity there is not that which requires an Order of Conditions.
Repair of the existing bulkhead will occur in the future; but that work is the
subject of an earlier Notice of. Intent which • has been removed from your
jurisdiction by appeal and will be the subject of a Superseding Order of
Conditions from the Department of Environmental Protection.
Since there is no activity requiring an Order of Conditions, there is no
activity that could be subject to this "Order" and ceased and desisted from. The
"Order" is therefore without effect. However, to the extent that it can be
construed as a request for information, the following is provided.
The areas subject to protection under the Wetlands Protection Act are
ii E]. li. 'I1�U In 31V N1V.V2,11 al.l.V7U ilg LV their p:lLYJ . Ql a. QV berl$LIcA and
proximity to wetlands. 70A North Street abuts the North River and is separated
therefrom by a pre-existing stone and pile bulkhead. The property itself (i .e. ,
the land away from the River) therefore is not an area subject to protection
under 310 CMR 10.02(1) (a) because it is neither bank, wetland, beach, dune, flat,
marsh, nor swamp (as defined in 310 CMR 10.04) .
The land under the North River is an area subject to protection pursuant
to 310 CMR 10.02(1) (b) . "Activities" subject to regulation within this area are
those that will remove, fill , dredge or alter this land. 310 CMR 10.02(2) (a) .
There is no removing, filling, dredging or altering of the land under the North
River occurring at 70A North Street. The physical characteristics of the land
under the River are not being affected in any manner. Therefore, there is no
activity there over which the Conservation Commission has jurisdiction.
26 Dearborn Street Salem, MA 01970 Telephone (508) 745-1788 Fax (508) 741-1984
With respect to the land itself, there is currently equipment and materials
being stored at 70A North Street in preparation for movement to and use at
various job sites throughout New England. There is no construction or building
of structures in progress.
The land at 70A North Street is not within the so called "buffer zone"
because it is not within 100 feet of an area specified in 310 CMR 10.02(1)(x) .
310 CMR 10.02(2) (b) . Please recall that the area subject to protection here is
the land under the River due to 310 CMR 10.02(1)jb)_. (The distinction and lack
of buffer zone is actually without significance here because there are no
"activities" occuring which "alter" the land.)
"Activities" on the land at 70A North Street are subject to protection
according to 310 CMR 10.02(2) (c) . Activity is not subject to regulation unless
and until that activity actually alters an area subject to protection. ' As
stated, the area subject to protection here is not a buffer zone, but the land
under the North River. The storage of materials at 70A North Street does not
actually alter the land under the North River. (Nor does it "alter" the land
itself in any manner.) Therefore, the Conservation Commission has no
jurisdiction over any activity at 70A North Street.
Please advise whether, in the confines of your statutory authority, you
have any evidence that the storage of materials at 70A North Street actually
alters the land under the North River. For your information (though not relevant
to your scope of review) 70A North Street remains zoned for Industrial use. In
the absence of further response, Burnham Associates, Inc. will assume that you
now recognize that the "Enforcement Order" was issued in error and in excess of
your authority.
Very y yours,
Presi nt,
Burnham Associates, Inc.
/ ' 1 -7
,F
U.S. Department Commanding Officer 455 Commercial St -
of Transportation United States Coast Guard Boston;MA 02109-1045
Marine Safety Office Boston Staff Symbol: Fac
United States Phone:(617)223-3000
coast guard RECEIVES FAX: (617)223-3032
EC19 Drill 10 Air 0' 30
SALEM 16450
PLANNING DEPT, NOV 4 1999
Salem Conservation Commission
Attn: Mr. Mark George
1 Salem Green
Salem, MA 01970
Dear Mr. George:
This letter is to inform you of the results of this unit's investigation into the notification of
potential pollution violations in the North River presented in your October 6, 1999 letter to Vice
Admiral Shkor. On October 20, 1999, a team from this office, accompanied by Mr. Stephen
Dibble and MA State Fire Inspectors, conducted an inspection of both the 14 Franklin Street and
70A North Street properties owned by Burnham Associates. The results of that inspection
revealed no Coast Guard enforceable violations.
Burnham Associates does not qualify as a regulated "facility transfering oil or hazardous
material in bulk"per Title 33, Code of Federal Regulations (CFR), Part 154, and therefore does
not require an approved contingency plan. The intentional grounding of a Burnham dredge
barge does not qualify as a reportable marine casualty under 46 CFR 4 since it was not
accidental, did not cause damage.to the vessel or release product into the environment, and does
not present a hazard to navigation:The items listed in your letter to VADM Shkor, including
construction work conducted without permits,jersey barrier relocation, and debris on the shore,
are not covered under federal regulations and therefore are not enforceable by this office.
Although some weathered sheens were observed, no point sources of pollution from Burnham
Associates were observed. The North River is a tidal basin and a natural collection point for
sheens. Since the sheening observed on 20 October 1999 was old and could have come from
another source, we cannot take regulatory action at this time.
My inspection team did note that the State Fire Inspectors made more headway with these issues
than we could at the time. I recommend you continue to utilize this asset to regulate many of the
issues you mentioned in your letter for which the Coast Guard does not have direct jurisdiction;
such as the storage of hazardous materials, shore side fueling operations, and debris storage at
Burnham Associates. If you do notice pollution of any sort flowing from this facility or one of
its vessels into a waterway, please notify this office immediately and we will dispatchpollution
investigators.
16450
NOV 4 1999
In addition, our response petty officers will continue to closely inspect the North River for
pollution on Salem harbor patrols. If you have any questions regarding this matter, please
contact LTjg Dave Sherry at(617) 223-3030.
Sincerely,
M. A. SKORDINSKI
Commander, U. S. Coast Guard
Acting Captain of the Port
Boston, Massachusetts
2
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a� A UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 1
REGION 1
RECEIVED
ED
$ Q 1 CONGRESS STREET,SUITE 1100
sF 10= BOSTON,MASSACHUSETTS 02114-2023
"',�PRDhG ";; OCT 32 &1 ll' 04
SALEM
PLANNING DEPT.
October 27, 1999 OFFICE OF THE
REGIONAL ADMINISTRATOR
Stephen Dibble, Administrator
Salem Conservation Commission
One Salem Green, 2"d Floor
Salem, MA 01970
Re: Burnham Associates Properties
Dear Mr. Dibble:
Thank you for your letter of October 6, 1999, highlighting suspected environmental violations at
the two referenced properties. EPA-New England shares the Commission's concerns for
protecting water quality, and agrees that the North River is a valuable resource. The list of issues
seems to run the full gamut from municipal code and permit violations to non-facility related
issues with vessels. EPA's New England office will investigate the issues under its regulatory
authority, and parse out the other items to the appropriate agencies, with our recommendation
that they too investigate, as follows:
14 Franklin Street
Item 2. U. S. Coast Guard, U. S. Corp. of Engineers
Item 9. U. S. Coast Guard for vessel management
Item 10. U. S. Coast Guard for coastal oil spills and FRP issue
Item 11. EPA for land oil storage tanks/U. S. Coast Guard for vessel lightering ops.
Item 12. U. S. Coast Guard for vessel safety inspections
Item 13. Mass. Coastal Zone Management
Item 14. Salem municipal zoning-permitting authority
Item 15. U. S. Coast Guard for navigational hazards
Item (9 Sic)19. EPA-New England RCRA (waste) and CWA 311 (oil-FRP) enforcement
offices
Internet Address(URL)• http://www.epa.gov/regionl
RacycledlRecyclable-Printed with Vegetable Oil Based Inks on Recycled Paper(Minimum 30%Postconsumer)
5�
70A North Street
Item 1. Salem municipal zoning-permitting authority p t�
Item 2. U. S. Coast Guard for coastal oil spills
Item 3. U. S. Coast Guard vessel management T k.
z Ytr .
F
' c p /
Item 4. U. S. Coast Guard vessel management, { , ...
Item 5. Mass. Coastal Zone Management/Salem'municipal zoning permitting authority .
Item 6. Not clear what suspected violation is being cited: s
Item 7. U. S. Coast Guard for coastal oil spills I
For the two items under EPA regulatory jurisdiction, EPA-New England will schedule
inspections by the appropriate offices as soon as possible. We will forward copies of your letter
to the appropriate Coast Guard, Corps. of Engineers, and CZM offices. For'follow-up on EPA
issues, please contact the following unit chiefs: Ken Rota, RCRA Enforcement Unit, at 617 918-
1751, and Dennisses Valdes, Emergency Response Section(FRPs) at 617 918-1261.
Sincerely,
r
John P. DeVillars
Regional Administrator
cc: Capt. Thomas Daley, Chief, Marine Safety Division, U.S.C.G.
William F. Lawless, Chief, Regulatory Branch, US Army C.O.E.
Thomas Skinner, Director, Mass. Office of Coastal Zone Management
Andrea Cooper,Northeast Regional Coordinator, CZM
F'
• f
I
U.S. Department Commander 431 Crawford Street
of Transportation United Stales Coast Guard Portsmouth,Va.237045004
Atlantic Area Staff Symbol:Amr
Ur States Phone:(757))398-ss3a
Can.
Guard FAX:(757)398-8503
16450
10/21/99
Mr. Mark George
Chairman
Salem Conservation Commission
1 Salem Green
Salem,MA 01970
Dear Mr. George:
Thank you for your letter regarding environmental violations along two sections of the North
River in Salem, MA. Your concerns have been forwarded to the Marine Safety Office(MSO) in
Boston, MA for their review and local action. Lieutenant Commander Wyman Briggs of MSO
Boston is the point of contact for this matter and can be reached at (617)223-3001.
Thank you for bringing this matter to our attention.
Sincerely,
zo Y't-,"'
C. W. DOANE
Commander, U.S. Coast Guard
Chief, Marine Safety Response Branch
Copy: Commander, First Coast Guard District (m)
Marine Safety Office Boston
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COVER
SHEET FAX
To: Eric Hutchins
Fax 9: 978 281 9301
Subject: North River—Burnham
Date: October 20, 1999
Pages: 1, including this cover sheet.
COMMENTS:
Eric:
Here is list of folks who received letter. Thanks for any help you can provide.
Steve.
From the desk of...
Stephen Dibble
Assistant Planner/Conservation Administrator
City of Salem, Planning Dept.
One Salem Green
Salem, MA.,01970
(978)745 9595 ext.311
Fax:(978)740 0404
Vice Admiral John E. Shkor John Devillars Bill Gaughan,Regional Director
U.S.Coast Guard Regional Administrator Department of Environmental Protection
USCG Atlantic Area Environmental Protection Agency Northeast Region
431 Crawford Street 1 Congress Street Suite 1100 205 Lowell Street
Portsmouth,Va 23704 Boston,MA 02114-2023 Wilmington,MA 01887
William Whooley Chief Robert Turner Joanne Scott
Salem Harbor Master Salem Fire Department Salem Health Agent
50 Winter Island Road 48 Lafayette Street 9 North Street
Salem, MA 01970 Salem, MA 01970 Salem, MA 01970
Todd Harrington, Director Andrea Cooper/Heather Clish U.S.Army Corps of Engineers
Office of the State Fire Marshall MCZM North Shore Regional Office Colonel Brian E.Osterndorf
P.O. Box 1025, State Road 2 State Fish Pier Dirstrict Engineer
Gloucester, MA 019303016 696 Virginia Road
-
Stow, MA 01775 concord,MA 0 174
.Ion Riagers,Acting Regional Administrator David M.Peters,Commissioner Secretary Bob Durand
National Marine Fisheries Service MA Dept.of Fisheries,Wildlife&ELL Executive Office of Enviromental Affairs
Northeast Regional Office 100 Cambridge Street,Room 1901 100 Cambridge Street 20th Floor
One Blackburn Drive Boston, MA 02202 Boston,MA 02202
Gloucester,MA 01930-2298
Dr.Howard Koh,Commissioner
MA Department of Public Health
250 Washington Street
Boston,MA 02102-4619
The Commonwealth of Massachusetts
Executive Office of Health and Human Services
DepartmeRFg% Cee Health
250 Washington Street, Boston, MA 02108-4619
M4 OCT 20 AN 8: 36
ARGEO PAUL CELLUCCI
GOVERNOR
JANE q SALEM _
LIEUTENANT GOVERNOR I'LANIKING DEPT
WILLIAM D.O'LEARY
SECRETARY
HOWARD K.KOH,M.D.,MPH
COMMISSIONER
October 18, 1999
Mark George, Chairman
Conservation Commission
Salem, MA 01970
Dear Mr. George:
Thank you for your recent letter to Dr. Howard Koh, Commissioner of the Massachusetts
Department of Public Health, regarding reported environmental violations at two properties in
Salem: 14 Franklin Street and 70A North Street. Dr. Koh asked me to respond to your letter.
From your description of the Conservation Commission's concerns relative to these properties, it
appears that they are regulatory in nature and therefore the appropriate state agency to respond to
your concerns would be the Massachusetts Department of Environmental Protection, Northeast
Regional Office (MDEP/NERO), located in Wilmington. By copy of this letter, we are
forwarding your concerns to Stephen Johnson of MDEP/NERO's Bureau of Waste Site Cleanup.
If you have any questions, please feel free to contact us at (617) 624-5757.
Sincerely,
7Environinental
, Director
Bureau o Health Assessment
Cc: Martha Steele, Deputy Director, BEHA
Stephen Johnson, MDEP/NERO, 205 Lowell Sington, MA 01887
i
BION CO
`l Conservation Commission
Salem, Massachusetts 01970
ti114SSACN�S
October 6, 1999
Vice Admiral John E. Shkor
U.S. Coast Guard
USCG Atlantic Area
431 Crawford Street
Portsmouth, VA 23704
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Vice Admiral Shkor:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
r
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed-beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem,the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
�.mMr-
Mark George
Chairman
Cc: Salem Conservation Commission
f Conservation Commission
r Salem, Massachusetts 01970
;L
October 6, 1999
John Devillars
Regional Administrator
Environmental Protection Agency
I Congress Street Suite 1100
Boston, MA 02114-2023
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Mr. Devillars:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
2. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
9. Chronic grounding of barge(s) on mud flats.
10. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
11. No approved contingency plan in case of spill.
12. Storage of chemicals, paints, oils and other petroleum products on barge.
13. Storage of materials and equipment in resource area.
14. Marine contracting debris scattered all over landside.
15. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem,the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George J
Chairman
Cc:Salem Conservation Commission
`5 Conservation Commission
Salem, Massachusetts 01970
l �
`l'ASSACk�
October 6, 1999
Bill Gaughan
Department of Environmental Protection
Northeast Region
205 Lowell Street
Wilmington, MA 01887
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Mr. Gaughan:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
3. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
16. Chronic grounding of barge(s) on mud flats.
17. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
18. No approved contingency plan in case of spill.
19. Storage of chemicals, paints, oils and other petroleum products on barge.
20. Storage of materials and equipment in resource area.
21. Marine contracting debris scattered all over landside.
22. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region.. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
r
2Conservation on
Salem. Massachusetts 01970
41A55NC���
October 6, 1999
William Whooley
Salem Harbor Master
50 Winter Island Road
Salem, MA 01970
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Mr. Whooley:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
4. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
23. Chronic grounding of barge(s) on mud flats.
24. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
25. No approved contingency plan in case of spill.
26. Storage of chemicals, paints, oils and other petroleum products on barge.
27. Storage of materials and equipment in resource area.
28. Marine contracting debris scattered all over landside.
29. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem,the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates,through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
AJON Col
Conservation Comnisssion
Salem, Massachusetts 01970
.:y�ssacN�
October 6, 1999
Chief Robert Turner
Salem Fire Department
48 Lafayette Street
Salem, MA 01970
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Chief Turner:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
and exposed to elements including: open buckets containing various liquids, hundreds of
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates,through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
�AJOA Cot
Conservation Commission
' Salem, Massachusetts 01970
�l ilj.'-I$$.4C.���'J
October 6, 1999
Joanne Scott
Salem Health Agent
9 North Street
Salem, MA 01970
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Ms. Scott:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
2. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
9. Chronic grounding of barge(s) on mud flats.
10. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
11. No approved contingency plan in case of spill.
12. Storage of chemicals, paints, oils and other petroleum products on barge.
I I Storage of materials and equipment in resource area.
14. Marine contracting debris scattered all over landside.
15. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem,the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
Akox cot
`% Conservation Comnzssion
Salem, Massachusetts 01970
F �
October 6, 1999
Todd Harrington
Director
Office of the State Fire Marshall
P.O. Box 1025, State Road
Stow, MA 01775
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Mr. Harrington:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals,paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles. —
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
r NAkon Co,
M `r Conservation Commission
Salem, Massachusetts 01970
'j„ssAC.Xk~
October 6, 1999
Andrea Cooper/Heather Clish
MCZM North Shore Regional Office
2 State Fish Pier
Gloucester, MA 01930-3016
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Ms. Cooper:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
I. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
and exposed to elements including: open buckets containing various liquids, hundreds of
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
LSM.
Mark George
Chairman
Cc: Salem Conservation Commission
`l Conservation Commission
(� Salem, Massachusetts 01970
't
�`t�ISS aCHv�
October 6, 1999
Colonel Brian E. Ostemdorf -
U.S. Army Corps s of Engineers
__District Engineer
696 Virginia Road
Concord, MA 01742
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Colonel Ostemdorf:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, manna development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
and exposed to elements including: open buckets containing various liquids,hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
col
,r.
Conservation Conunmion
Salem, Massachusetts 01970
Ird SS NG� .w
October 6, 1999
Jon Rittgers
Acting Regional Administrator
National Marine Fisheries Services
Northeast Regional Office
One Blackburn Drive
Gloucester, MA 01930-2298
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Mr. Rittgers:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
I. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen-on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
l
!�IAION Cot
J.
Conservation Commi%ion
Salem, Massachusetts 01970
ylssacssa=
October 6, 1999
David M. Peters
Commissioner
MA Dept. of Fisheries, Wildlife& ELL
100 Cambridge Street, Room 1901
Boston, MA 02202
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Mr. Peters:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
I Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
i
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
I '
a�WN co
Conservation Conuifi%ion
Salem, Massachusetts 01970
ssac��
October 6, 1999
Dr. Howard Koh
Commissioner
MA Department of Public Health
250 Washington Street
Boston, MA 02102-4619
RE: 14 Franklin Street and 70A North Street, Burnham Properties '
Dear Dr. Koh:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
I
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble
swimming beneath polluted entrapped area.
The City of Salem, the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
C.A. NO. 93-2587-B
CITY OF SALEM & another,'
Plaintiffs
YS.
CRAIG C. BURNHAM, Trustee of the Franklin Street Realty Trust, & another,Z
Defendants/
Plaintiffs in Counterclaim
CITY OF SALEM CONSERVATION COMMISSION, & others,'
Defendants in Counterclaim
FINDINGS OF FACT RULINGS OF LAW AND ORDER
On April 9, 10, and 11, 1996, this matter was before the Court for a trial,jury-waived,
in the Superior Court, Essex County, sitting in Lawrence. This case, one of several in an
apparently long-standing dispute between the City and the defendants, involves the
defendants' operation of a marine contracting business at 14 Franklin Street, Salem.
Through their complaint, the plaintiffs seek declaratory relief concerning the City's
jurisdiction to regulate a resource area adjacent to the defendants' property, and to
regulate the mooring, anchoring, and location of vessels and floats owned and operated
by the defendants and located within Salem Harbor. The plaintiffs also seek injunctive
relief with respect to the defendants' activities in the protected resource area, fines, and
'City of Salem Conservation Committee.
2Burnham Associates. Inc.
'City of Salem and Neil Harrington, Mayor of the City of Salem.
posts.'
The defendants deny that they violated any provisions of the Wetlands Protection
Act. Furthermore, in their counterclaim, the defendants allege that the City of Salem
conservation Commission wrongfully failed to issue a certificate of compliance pursuant
to the Wetlands Protection Act which would have enabled them to maintain the existing fill
and seawall at the property; that a May 22, 1980 order of conditions does not apply to 14
Franklin Street, the location of their marine contracting business; and that an amendment
to the Salem City Code of Ordinances, which had the effect of imposing mooring fees on
vessels tied to slips in Salem waters, is invalid.'
Based on the credible evidence and inferences reasonably drawn from that
evidence, the Court makes the following findings of fact.
FINDINGS OF FACT
1. Pursuant to G.L. c. 131, § 40 and 310 C.M.R. 10.00 et seq., plaintiff Salem
Conservation Commission is appointed and empowered with jurisdiction to monitor and
regulate activities over any and all wetlands within the City. Pursuant to G.L. c. 102, § 19,
the City is empowered to appoint a harbormaster with all powers and duties imposed by
law.
2. The defendant, Craig C. Burnham, is Trustee of the Franklin Street Realty
'The plaintiffs had twice sought a preliminary injunction enjoining the defendants from conducting
certain activities at the property. The Court denied the first request on November 22, 1993 (Grabau. J.)
and the second request on February 9, 1994 (Brady, J.).
'Additional counts contained in the counterclaim were dismissed prior to trial.
2
Trust. and is also the president of Defendant Burnham Associates, Inc. The Trust is the
owner of the property located at 14 Franklin Street, Salem, which is leased by Burnham
Associates, Inc. The property abuts the North River, a navigable waterway in the City.
3. Burnham Associates, Inc. is a Massachusetts corporation which operates a marine
contracting business from the property.° Burnham's principal business, for more than
twenty-five years, has been the dredging of harbors and channels. The property at 14
Franklin Street serves as a depot and station for this marine contracting business, and is
used to store equipment and materials which are moved to job sites throughout New
England. From time to time, equipment is moved onto and off of various vessels and
barges which tie up to the granite sea wall on the shoreline of the property. Burnham has
had exclusive use of the property since 1979, and purchased it in the fall of 1992. .
4. In December of 1992, an ocean storm struck the North Shore, causing extensive
damage to the seawall at the property. On or about December 16, 1992, Debra Hurlburt,
a City of Salem Conservation Commission Administrator, observed, from across the North
River, a barge-mounted crane moving heavy objects at the property. Hurlburt believed that
the activity she witnessed at the property involved repairs being conducted to the seawall
as a result of the storm. Acting on her observations, Hurlburt prepared an enforcement
order, dated December 16, 1992, which required Burnham to cease and desist from further
activity affecting the wetland portion of the property. The order described the activity
witnessed by Hurlburt as "[r]emoval of debris, various material within a Resource Area.
Debris being moved with a large crane." The order was subsequently signed by the Salem
The defendants, Craig C. Burnham, as Trustee of the Franklin Street Realty Trust, and Burnham.
Associates, Inc., are hereinafter referred to collectively as "Burnham."
3
City Planner, served on Burnham, and later, ratified by the Conservation Commission.7
Q. Burnham responded to the enforcement order by letter dated December 18, 1992,
in which he stated that no debris had been removed from the property. In an effort to
explain the activity observed by Hurlburt, Burnham informed the Conservation Commission
that the barge-mounted crane had been in the process of moving construction material and
equipment in preparation for an upcoming project. Burnham also informed the
Conservation Commission that, as a result of the recent storm, a barge had caused
damage to a portion of the North River dock bulkhead causing pieces to fall into the river.
Burnham stated that he intended to finish the repair of the bulkhead by resetting the
masonry pieces as quickly as possible. Without such repair, Burnham stated, the next
storm would cause more material to enter the river. Burnham completed the repairs in
January of 1993.
6. Burnham and the Conservation Commission exchanged correspondence about the
seawall repair until February 2, 1993. Moreover, the correspondence and the seawall
repair were discussed at Conservation Commission meetings on January 28 and February
11 , 1993.
7. The subject of Burnham's property did not arise again in any Conservation
Commission meeting until October 28, 1993. Between February 11, 1993 and October 28,
1993, however, there was much activity involving the location of Burnham's operation,
including the City seeking criminal complaints against Burnham which were later no]
'The Conservation Commission's usual procedure in issuing enforcement orders is by majority vote
of the Commission. The present case varied in that the order was first prepared by a non-commission
member, then signed by the City Planner, served on Burnham, and finally, ratified by the Commission.
4
i
prossed. Additionally, during that period, Burnham obtained a Land Court Order. which
enjoined the City from riling criminal prosecutions against him, and a Land Court Order
compelling the building inspector to approve Burnnam's Chapter 91 Waterways License
application.
8. The Department of Environmental Protection Amnesty Program allows waterfront
property owners to apply for a so-called Chapter 91 Waterways License to maintain
waterfront structures which were in place prior to January 1, 1984.8 On June 16, 1993,
Burnham, by his agent, submitted a Chapter 91 Waterways License application to the DEP
for permission to maintain the existing seawall and fill at the property? On or about
November 17, 1993, the DEP requested that the ramp at the property also be included in
the application.
The application requires inclusion of a history of any action by a town conservation
commission with respect to the subject property, including all orders of conditions
applicable to the property. If an order of conditions is present in the property's file at the
time of the application, the DEP requires that a certificate of compliance of the order of
conditions also be provided. In this case, the property's file contained an order of
conditions issued by the Conservation Commission on May 22, 1980 concerning
construction of a seawall. This May 22, 1980 order of conditions, however, did not apply
to the property at 14 Franklin Street, but to property located at 12 Franklin Street.
9. On or about February 24, 1994, Burnham filed a request for determination of
The Amnesty,Program does not implicate waterfront activities; it is a program to license pre-
existing waterfront structures.
'The ramp and sea wall at the property were in place prior to January 1, 1984.
�y
N 5
Y�
applicability with the Conservation Commission regarding whether the Massachusetts
'.Netlanas Protection Act, G.L. c. 131. § 40, applied to Burnham's maintaining the existing
fill and seawall at the property and whether the May 22, 1980 order of conditions applied
to the property. The Conservation Commission considered the request and issued a
determination of applicability, dated March 10, 1994, stating that the property is an area
subject to protection under the Wetlands Protection Act and that the May 22, 1980 order
of conditions did apply to the property; however, because the Conservation Commission
has issued neither a certificate of compliance on the order of conditions nor a
determination of non-applicability, Burnham has been unable to secure a waterways
license from the DEP.
10. In June of 1993, the City Council of the City Of Salem, with approval from the
Mayor, voted to amend Salem City Code of Ordinances § 6-30 to provide that the terms
"moor or anchor," as used in the Code of Ordinances §§ 6-28 and 6-29, "shall also include
vessels tied to slips in Salem waters." The result requires a harbormaster application and
mooring permit for any vessel in a slip, regardless of whether the vessel was in a marina
or secured by bottom anchor and chain.
11. Burnham has a valid permit for its mooring in the North River used to secure its tug
boat. The mooring is secured by a bottom anchor and chain. Burnham did not apply for
a mooring permit for its spud barge. The spud barge is not permanently located at the
property; it is moved to various job sites as needed. When at the property, the barge is
secured adjacent to the seawall and to the river bottom by use of a spud piling. A spud
piling is a type of anchorage which is lowered to the river floor, and is not secured by
bottom anchor or chain.
6
i
RULINGS OF LAW
A. Counts I and II of the Plaintiffs' Amended Complaint
Count I of the plaintiffs' amended complaint seeks a declaration that the
Conservation Commission has jurisdiction pursuant to G.L. c. 131, § 40 and 310 C.M.R.
10.00 et seq. to regulate the activities at the property. Count II of the plaintiffs' amended
complaint alleges that the defendants have altered the property in violation of G.L. c. 131,
§ 40 and 310 C.M.R. 10.00 et seq.
The DEP regulations provide that "[a]ny bank . . . bordering on . . . any river' and
"[I]and under (any river]" are subject to protection under G.L. c. 131, § 40, the Wetlands
Protection Act. 310 C.M.R. 10.02(1). Once Wetlands protection has been established, a
landowner is required to file a notice of intent with the local conservation commission if the
landowner seeks to propose or undertake any activity10 which will "remove," fill,12 dredge"
or alter 141, the area. c. 131, § 40; 310 C.M.R. 10.02(2)(a). The notice of intent triggers
proceedings leading to the commission's issuing an order of conditions. Activities within
""Activity means any form of draining, dumping, dredging, damming, discharging, excavating,
filling or grading; the erection, reconstruction or expansion of any buildings or structures; the driving of '
pilings; the construction or improvement of roads and other ways; the changing of run-off characteristics;
the intercepting or diverging of ground or surface water; the installation of drainage, sewage and water
systems; the discharging of pollutants; the destruction of plant life; and any other changing of the physical
characteristics of land." 310 C.M.R. 10.04.
""Remove means to take away any type of material, thereby changing an elevation, either
temporarily or permanently." 310 C.M.R. 10.04.
""Em means to deposit any material so as to raise an elevation, either temporarily or permanently."
310 C.M.R. 10.04.
""Dredga means to deepen, widen, or excavate, either temporarily or permanently." 310 C.M.R.
10.04.
"Altai means to change the condition of any c. 131, § 40 protected area." 310 C.M.R. 10.04.
one hundred feet of a protected area only require a notice of intent if the activities will alter
a protected area. 310 C.M.R. 10.02(2)(b).
The statute does not require a landowner to file a notice of intention with the local
conservation commission concerning each repair he may wish to perform in a wetland area
- in fact, the activity of "repairing" is conspicuously absent from the statute. Bourne v.
Austin, 19 Mass. App. Ct. 738, 740 (1985). It is only when the repairs amount to removal,
filling, dredging, or alterations do they amount to a prohibited activity requiring a notice of
intent. 1d. at 741.15 If a landowner believes that the repairs he wishes to make in a wetland
area do not fall within the forbidden activities, he can proceed with the repairs, with the risk
that a civil action will be brought against him under c. 131, § 40.16 td. If the town brings
a civil enforcement action, it "will have the burden of proving by a fair preponderance of the
evidence that the work in question amounts to one of the forbidden activities." Id. at 741-
742; compare Brotherhood of Alpha Upsilon Inc. v. Zoning Bd. Of Anneals of Bridgewater,
15 Mass. App. Ct. 991, 992 (1983).
In this case, the seawall and the land at the property border on the North River, and
constitute land under the North River. As such, the seawall and land at the property, as
well as the land under the river, are areas subject to protection under G.L. c. 131, § 40.
The question then is whether Burnham's repairs are subject to regulation under G.L. c.
131, § 40, i.e., whether those repairs remove, fill, dredge, or alter the area subject to
"In the case of an area within one hundred feet of a protected area, a.k.a. the buffer zone, only if
repairs amount to alterations must a notice of intent be filed. 310 C.M.R. 10.02(2)(b).
'6A criminal action could also be instituted under c. 131, §40.
8
i
protection.'
At the trial of this matter, the defendants presented evidence that the debris Hurlburt
observed were actually pieces of the seawall at the property which had fallen into the North
River, and that they were being reset by the defendants. Applying the definitions of the
prohibited activities - removing, filling, dredging, and altering - to the repairs conducted by
the defendants, this Court is not convinced by a fair preponderance of the evidence that
the "simple repairs" constituted any of the four prohibited activities within the meaning of
c. 131, § 40 requiring a notice of intent. See Bourne, 19 Mass. App. Ct. At 743 (repair of
retaining wall held not to fall within c. 131, § 40 prohibitions). As such, Burnham did not
violate the c. 131, § 40 when he repaired the seawall which was damaged as a result of
the storm.18
B. Count III of the Plaintiffs' Am nd dom Ip aint
Count III of the plaintiffs' amended complaint seeks a declaration that the City has
jurisdiction to regulate the mooring, anchoring, and location of vessels and floats owned
or operated by the defendants within the limits of Salem Harbor. Essentially, the plaintiffs
allege in their complaint that the defendants have violated G.L. c. 102, § 21; G.L. c. 91, §
10A; and Salem City Code of Ordinances §§ 6-27, 6-28, and 6-29 by refusing to apply for
17 The plaintiffs contend at the outset that the issue of whether Burnham's activities constitute an
activity subject to regulation must first be heard by the Conservation Commission and that, therefore, this
Court lacks jurisdiction to make such a determination. This argument, however, is not persuasive in light
of the Bourn decision. Bourne, 19 Mass.App. Ct. at 744 ( "a landowner who believes that the repairs he
wished to make in a wetland area do not fall within the scope of the prohibitory words '[n]o person shall
remove, fill, dredge or alter' can proceed to make the repairs and take his chances on whether a civil
action will be brought against him. . . .").
18The result would be the same even if this Court found, as the defendants request, that the only
conduct of Burnham away from the land under the North River(the seawall inward) subject to regulation,
is activity shown to alter the land under the North River.
9
i
and obtain mooring permits from the Salem Harbormaster. The plaintiffs contend that
Burnham's ramp and barge require such a permit. Burnham argues that the barge and
ramp are not secured by bottom anchor but, rather, are either secured directly to the
existing bulkhead at the property or supported by a spud piling and, therefore, not within
the jurisdiction of the harbormaster.
The authority of a harbormaster to issue mooring permits is set forth in G.L. c. 91,
§ 10A providing that "the Harbormaster of a city . . . may authorize by permit the mooring
on a temporary basis of floats or rafts held by anchors or bottom moorings within the
territorial jurisdiction of such city . . . ... The Massachusetts Code of Regulations provides
that "[a] written application for an annual permit must be submitted to the harbormaster of
a city . . . for the placement on a temporary basis of moorings, floats or rafts held by
bottom-anchor, and ramps associated thereto. . . . " 310 C.M.R. § 9.07(1) (emphasis
added). Section 6-27 of the Salem City Code of Ordinances provides:
No float may be moored in Salem Harbor without a float permit. A float
permit shall be issued on a yearly basis and the location, size, and holding
equipment shall be under the inspection and control of the harbormaster.
Section 6-28 of the Ordinances provides:
No . . . person . . . shall moor or anchor any vessel within the limits of Salem Harbor
without first obtaining from the harbormaster a permit to anchor or moor said vessel.
Section 6-29 of the Ordinances provides:
An applicant requesting a mooring permit shall file an application therefor with the
harbormaster . . . .
While the body of law governing the harbormaster's authority to regulate the location
of vessels does not specifically refer to spud pilings, it does grant the harbormaster
authority to regulate floats or rafts held by anchors or bottom moorings. A spud piling,
io
i
which is made of tubular steel and lowered through a sleeve to the bottom on a waterway
in order to secure a vessel, serves the same purpose and operates as a bottom anchor.
Therefore, Burnham must apply for and obtain the necessary permits for any barges or
floats which are secured by spud pilings, including his spud barge, because it is anchored
by a spud piling.
C. Count IV of the Plaintiff ' Am nd d Complaint
Count IV of the plaintiffs' amended complaint seeks to impose penalties against
Burnham pursuant to G.L. c. 91, § 23 and the City of Salem Code of Ordinances § 6-35
for failing to obtain the necessary permits from the Commonwealth and the City for the
location of floats at the property. Because Burnham is in violation of G.L. c. 91, § 10A and
Sections 6-27, 6-28, and 6-29 of the Code of Ordinances, supra, he is now required to
apply for and obtain the necessary permits. No fines will be imposed for the violations at
this time; however, failure to apply for the necessary permits within thirty days of the entry
of this Order will result in the imposition of fines pursuant to c. 91, § 23 and Section 6-35
of the Code of Ordinances.
D. Counts I and II of the Defendants' Count rclaim
Count I of the defendants' amended counterclaim seeks to order the Conservation
Commission to execute a certificate of compliance of its May 22, 1980 order of conditions.
Count II seeks a declaration, pursuant to G.L. c. 249, § 4, that the May 22. 1980 order of
conditions is inapplicable to the property and an order to the Conservation Commission to
issue a positive order of conditions with an executed certificate of compliance to the DEP,
in support of Burnham's Chapter 91 Waterways License application.
A civil action in the nature of certiorari to correct errors in proceedings may be
. 11
f
brought in the Superior Court, so long as such decisions "are not otherwise reviewable by
motion or by appeal . . . ." G.L. c. 249, § 4. The court's review is confined to the record
and is for the purpose of correcting substantial errors of law apparent on the record
adversely affecting material rights. MacHen v. Civil Service Commission, 40 Mass. App.
Ct. 632, 634, rev. denied 423 Mass. 1106 (1996), quoting Commissioners of Civil ry- v.
Municipal Ct of Boston, 369 Mass. 84, 90 (1975). If the court determines that a decision
was arbitrary, capricious, or based on legally untenable grounds, it may remand the matter
for further proceedings, set aside and reverse the decision, or order such other judgment
as justice may require. c. 249, § 4.
The parties agree that the May 22, 1980 order of conditions does not apply to 14
Franklin Street but to 12 Franklin Street. The Conservation Commission, therefore,
unlawfully based its decision to issue a determination of applicability, at least in part, on
an order of conditions which did not apply to the property. Because there is little to be
gained by further fact finding, this Court, empowered pursuant to the provisions of G.L. c.
249, § 4, will annul the Conservation Commission decision. Since the Conservation
Commission's erroneous ruling prevented Burnham r from obtaining a Chapter 91
Waterways License, the Conservation Commission will be ordered to withdraw any
opposition to Burnham's Chapter 91 Waterways License application with the DEP and
either issue a positive order of conditions with an executed certificate of compliance or
issue a determination of non-applicability for the ramp and seawall at the property.19
i9Whether the DEP will issue the license is not a question currently before this Court.
12
I
E. Count III of the Defendants' Amended Counterclaim
Count III of Burnham's amended counterclaim seeks a declaration that the City's
June 10, 1993 amendment to Section 6-30 of the City of Salem Code of Ordinances is
invalid in that it is repugnant to law, inconsistent with the general laws, and in conflict with
the applicable enabling act.
Section 6-30's amendment provides that the terms "moor and anchor', as used in
Sections 6-28 and 6-29 "shall also include vessels tied to slips in Salem waters." A slip is
an area in which a boat can tie up to cleats without the use of an anchor or mooring; it can
include a private or public marina or dock.
Section 6-28, in relevant part, provides as follows:
No master, or person, acting as a master, owner, custodian or
any other person, shall moor or anchor any vessel within the
limit of Salem Harbor without first obtaining from the
Harbormaster a permit to anchor or moor said vessel.
Section 6-29, in relevant part, provides as follows:
An applicant requesting a mooring permit shall file an
application therefore with the Harbormaster, and said
application shall contain such information as the Harbormaster
may require to determine the adequacy of the mooring gear to
be used by the applicant.
In this case, the Salem Harbormaster testified that the regulation regarding slips
applies to slips in any area of the City. Burnham argues that the harbormaster has no
authority to require him to obtain a slip permit for his vessel because, he argues, a
harbormaster's regulatory authority is limited to floats, rafts, or vessels held by bottom
anchors or mooring and not to vessels tied to slips. The Court, however, does not find this
argument persuasive. The City has the authority to provide the harbormaster jurisdiction
over vessels within the territorial jurisdiction of the City. See G.L. c. 102, § 21 and G.L. c.
13
91, § 10A. With such jurisdiction, the harbormaster can require the request of permits for
vessels tied to slips. Thus, Section 6-30 of the City of Salem Ordinances is a valid
ordinance.
ORDER
For the foregoing reasons, this Court hereby MCLARES the following: (1) the
seawall at 14 Franklin Street, Salem, is an area subject to protection under G.L. c. 131, §
40,the Wetlands Protection Act; (2)although 14 Franklin Street is an area protected by the
Wetlands Protection Act, the defendants did not remove, fill, dredge, or alter the resource
area with their repairs to the seawall and thus, did not violate G.L. c. 131, § 40: (3)
Burnham is required to obtain the necessary permits for vessels and/or floats anchored by
spud pilings; (4) the May 22, 1980 order of conditions executed by the City of Salem
Conservation Commission does not apply to 14 Franklin Street; and (5)the City's June 10,
1993 amendment to Section 6-30 of the City of Salem Code of Ordinances is valid.
This Court further ORDERS the City of Salem Conservation Commission to formally
withdraw any opposition to the defendant's Chapter 91 Waterways License application with
the DEP regarding the ramp and seawall at the property and either issue a positive order
of conditions and certificate of compliance or issue a determination of non-applicability.
1�• w�wln�
Robert H. Bohn Jr.
Justice of the Superior Court
DATED: November FS , 1999
14
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s s
r
DALY & DALY
ATTORNEYS AT LAW _
32 CHURCH STREET
SALEM, MASSACHUSETTS 01WM
KEVIN T. DALY TELEPHONE (978) 745-0500 OF COUNSEL
MARGARET DALY CRATEAU FAX (978) 745-6606 RICHARD E. DALY
November 17, 1999
73 713
Salem Conservation Commission S: _r
One Salem Green �� ;�R M
Salem, MA 01970 > -- n
D m
ATTN: Steven Dibble 0 K q? n
T � z
RE: Salem Conservation Commission v. Burnham w
Dear Steve :
Please find enclosed a copy of the Decision from Judge Bohn in
the case tried back in 1996.
Although not perfect, I am quite pleased with this Decision.
Please circulate copies to the members Conservation Commission and
schedule an executive session so that I can discuss this Decision
with the Commission.
Thank you for your attention to this matter.
Very truly yours,
J)
KEVIN T. DALY
KTD/rms
Enclosures
MEMO
To: Kevin Daly
From: Stephen Dibble, Conservation Administrator
Subject: Burnham nl4er/ second request for production of documents
Date: Augu 26, 1999
Please find enclosed. package from John Keenan. After I spoke with him he asked
that I forward it to you. You may have already taken action on an earlier request for
the same information. Please let me know if I need to do anything. Thanks.
W/wnmiNmisr/oummemol ,
05/28/99 FRI 14:49 FAX 617 727 13495 MODR Imool
THE COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS OFFICE OF DISPUTE RESOLUTION
100 Cambridge Street, Room 1005
REC
ti ®ED Boston, MA 02202
FREDIE Q KAY JU,4 0 2 1999 TEL(617)727-2224
EXECVTlVE DIRECTOR
FAX:(617)727-6495
SalemP9anrieng Dept. i
FAXCIMLE TRANSMITTAL COVER SHEET
Total Number of Pages Including This Cover Page: (o
To: Dorothy Motouris, Esq., MA DEP, Fax# 617-338-5511
Craig Burnham, President, Burnham Associates; Fax# 978-741-1984
Keith Kauppila, Esq., Representing Burnham Associates;
Fax#617-262-8333
Kevin Daly, Esq. Representing the City of Salem; Fax# 978-745-6606
Steve Dibble, Administrator, Salem Conservation Commission;
Fax#978-740-0404
CC: Sam Bennett, DEP, Fax#617-338-5511, Susan Podziba Fax#617-
73"911
From: Harry Manasewich, Government Programs Coordinator
Date: May 28, 1999
Subject: Mediation Confirmation &Agreement to Mediate
Comments:
Please see attached confirmation sheet and Agreement To Mediate.
* - CONFIDENTIALITY NOTICE 0—
The information and documents transmitted by this telecopy may be CONFIDENTIAL AND/OR
PRIVILEGED. The information is intended only for the person(s) named above. If you are not the
intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you
are hereby notified that any distribution, copying, disclosure or use of this facsimile or the
information it contains is strictly prohibited. If you have received this facsimile in error, please notify
us immediately by telephone, and return the original to us at the above address via the U.S. Postal
Service. Thank you.
If you do not receive all of these pages, please contact the office as soon as possible_
C�
S:Uimanas ichlfarrnsWediatiw Conflrmabon HM 5nW99
05/28/99 FRI 14:49 FAX 617 727 6495 NODR 0 002
THE COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS OFFICE OF DISPUTE RESOLUTION
a 100 Cambridge Street, Room 1005
Boston, MA 02202
FREDIE D.KAY TEL(617)727-2224
EXECUTIVE oynEc70H
FAX:(617)727-6495
R
MEMORANDUM
To: Dorothy Motouris, Esq., MA DEP;
Craig Burnham, President, Burnham Associates;
Keith Kauppila, Esq., Representing Burnham Associates.-
Kevin
ssociates;Kevin Daly, Esq. Representing the City of Salem;
Steve Dibble, Administrator, Salem Conservation Commission;
CC: Sam Bennett, MA DEP; Susan Podziba
From: Harry Manasewich, Government Programs Coordinator
Date: May 28, 1999
RE: Mediation Confirmation and Agreement to Mediate
This is to confirm that a mediation session has been arranged and is scheduled
as follows:
Date: June 10, 1999
Time: 9 a.m.
Location: MA Office of Dispute Resolution, Saltonstall Building, 100
Cambridge Street, Room 1005 (10" floor), Boston, MA
You have chosen Susan Podziba to be your mediator. A typical mediation
session lasts between three to four hours. Additional time and more than one
session may be required to address all the issues. Please plan your schedule
accordingly_ Review the enclosed information sheets on mediation to learn more
about the process.
Please send the mediator a 2 to 3 page overview of the case including your
perspective of the issues and any relevant law you will be discussing. She can
be reached at 617-738911. Additionally, kindly complete the enclosed
Agreement to Mediate and fax it to me as soon as possible.
We are pleased that you have elected to try mediation and hope the process will
be helpful for your case_ Please feel free to contact me at extension 313 if you
need directions or have any questions.
A LWNF-CBO.NTS.1WlODRViManasewlMieasesWumhamAnSumhem As DEPSalemMedwanConfim+a0on.doe
i�
05/28/99 FRI 14:50 F31 617 727 6495 MODR [A 003
Massachusetts Department of Environmental Protection
Office of General Council
Mediation Program
Massachusetts Office of Dispute Resolution
AGREEMENT TO PARTICIPATE IN MEDIATION
The undersigned parties agree to participate in mediated negotiations, as specified in the
terms and provisions below,for the purpose of resolving disputes among the parties related
to the following case:
Case Name: Burnham Associates-DEP-City of Salem
DEP#:
MODR#:
Parties: There shall be 3 parties to this mediation as follows:
1)MA DEP as represented by Dorothy Motouris,Esq;
2)Burnham Associates as represented by Craig Burnham,President, and
Keith Kauppila, Esq.;
3)The City of Salem and the Salem Conservation Commission as represented by
Kevin Daly,Esq. and Steve Dibble, Salem Conservation Commission
Administrator.
Voluntar Partici anon: The parties understand that participation in mediation is
voluntary an at ey may withdraw at any time without prejudice. Withdrawing parties
remain bound by the confidentiality provisions stated below and remain bound by any
payment obligations incurred as part of this agreement.
ConJidenliality pLConvnunicadons: The parties understand that the discussions that take
place dun ng mediation are confidential, as provided for in MGL Ch_ 233, Sec. 23C and
that the mediator will use available legal precedent to preserve that confidentiality. There
will be no verbatim record or formal minutes of any mediation session.
Authority: The parties agree to attend the mediation session(s)and to bring with them to
e mt a `hon session(s)any other person needed to agree to settlement or,if necessary,to
make arrangements for those persons to be available by telephone during the mediation. If
a party is unable to attend,they agree to send in their place the principal person(s)
authorized to negotiate on their behalf and make settlement decisions,providing they
and/or other persons needed to agree to settlement are available by phone during the
mediation.
Mediator: The parties understand that the mediator provided by the Massachusetts Office
o D� Resolution serves at the pleasure of the parties and with their mutual consent.
The mediator will disclose any prior relationship s/he may have had with the parties. The
role of the mediator is to facilitate negotiations. The mediator shall not issue decisions on
the resolution of the parties' differences and will not provide the parties with legal advice
or couusel.
The mediator for this case will be Susan Podziba.
1\ANF-CBO.NTS.I\MODR\BMenase ichkases\BumhamASMTM-Burnham-DEP-City ofSalem.doc
Page I of 2
i
05/28/99 FRI 14.50 FAX 617 727 6495 MUDR ff7J004
Fees: A $600 mediator fee payable to the mediator will be divided equally among the
parties and due at the conclusion of each mediation session (DEP will pay its share
through MODR via its Interagency Service Agreement). The fee includes a mediation
session of up to four hours inclusive of the mediator's preparation for that session and their
travel time to and from the session. If the parties choose to continue the mediation beyond
the first session,the mediator fee is $100 per hour to be divided equally among the parties.
Late Cancellation PenaW: The parties understand that a late cancellation fee($300)may
e assessed for postponing or canceling a mediation session with less than seven calendar
days notice.
The undersigned hereby agrees to these terms and conditions.
Name (print or type) Phone
Signature Date
Address (print or type)
11ANFCBO.NTS-IIMODRIHManaawxhleases%Btunham Aaa\ATM-Bumham•DEP-city ofSalem.doc Paget oft
05/28/99 FRI 14:51 FAX 617 727 6495 MODR 005
THE COMMONWEALTH OF MASSACHUSETTS
mom MASSACHUSETTS OFFICE OF DISPUTE RESOLUTION
100 Cambridge Street, Room 1005
Boston, MA 02202
FREDIE D.KAY TEL 61 727-2224
orEeunvEo3�croa FAX.(617)727-6495
Mediation Information Sheet
The Massachusetts Offics of Dispute Resolution(MODR) is a state agency
providing high quality mediation, case evaluation,training,meeting facilitation, and other
alternative dispute resolution services. Established in 1985, MODR designs and
implements innovative dispute resolution programs, delivers dispute resolution services
and promotes the resolution of disputes by training others in negotiation and mediation
skills. Mediation is the primary service provided by MODFL
What is Mediation?
Mediation is a voluntary,confidential and flexible process that helps disputing
parties to fashion their own agreements. Agreements reached in mediation can often
meet the needs of all involved parties. Disputants are more likely to comply with an
agreement that they themselves negotiated. The confidentiality of the mediation process
is protected by M.G.L. Chapter 233, Section 23C.
What Happens in Mediation?
The typical mediation session in a 2-3 parry case lasts approximately three hours.
Mediation in multi-parry cases may be conducted through a series of sessions scheduled
to meet the needs of the parties.
The mediation session begins with a joint meeting of the parties and the mediator.
At this time, the mediator explains the mediation process, answers questions and asks
each party to describe the dispute. After meeting jointly with the parties,the mediator
usually meets individually with each party. In multi-party cases conducted over several
sessions,the mediator often speaks by telephone with the patties between sessions to help
move the process along.
Z� e:lsnmeAfom�co
u�mg+armlmcdierdw. 611W8
05/28/99 FRI 14:51 FAX 617 727 6485 MODR 006
During individual sessions,the mediator listens to the parties'concerns,asks
questions to learn more about the dispute and helps the parties to identify areas for
possible agreement. Once the mediator has this information,the mediator assists the
parties to negotiate an agreement by:
• assisting the parties to exchange information;
• clarifying misunderstandings and ambiguities;
• providing a fresh perspective on the issues in dispute;
• facilitating the evaluation of the strengths and weaknesses of each party's case;
• exploring options for mutual gains and realistic trade-offs;
• offering a safe way to test proposals without committing to them; and
• enabling parties to shape their own settlement terms leading to a mutually acceptable
resolution
Who Should Attend the Mediation Session?
The parties to the dispute and any other persons needed to agree to a settlement
should attend the mediation session.
How to Prepare for the Mediation Session
Parties must sign an"Agreement to Participate in Mediation"in order to invoke
confidentiality protections. The agreement outlines the responsibilities of the parties and
the parameters of the mediation process. In some instances,disputants may be asked to
submit a brief written outline describing the facts,issues and negotiation history of the
case to the mediator in advance of the session. The outline is confidential and provides
the mediator with each party's perspective of the dispute.
Who are the Mediators?
The mediators are highly skilled dispute resolution professionals who are
supervised by the Massachusetts Office of Dispute Resolution. MODR assigns mediators
to mediate based on the needs of the case and the mediators qualifications.
u:l9hsicdlfom slcounptogrsnfslmed;nfdoc
6(1oAs
JYq c&t r C
5� CAR.w-Q
i h.
05/28/99 FRI 13:24 FAX 617 727 6495 MODR 10 no
THE COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS OFFICE OF DISPUTE RESOLUTION
s 100 Cambridge Street, Room 1005
6 Boston, MA 02202
FREDIE D_KAY
EXECUTWE DIREC70A TEL:(617)727-2224
FAX:(617)727-6495
FAXCIMLE TRANSMITTAL COVER SHEET
Total Number of Pages Including This Cover Page: 6
To: Dorothy Motouris, Esq., MA DEP; Fax# 617-338-5511
Craig Burnham, President, Burnham Associates: Fax#978-741-1984
Keith Kauppila, Esq., Representing Burnham Associates:
Fax#617-262-8333
Kevin Daly, Esq. Representing the City of Salem; Fax# 978-745-6606
Steve Dibble, Administrator, Salem Conservation Commission;
Fax#978-740-0404
CC: Sam Bennett, DEP, Fax #617-338-5511, Susan Podziba Fax# 617-
738-6911
From: Harry Manasewich, Government Programs Coordinator
Date: May 28, 1999
Subject: Mediation Confirmation &Agreement to Mediate
Comments:
Please see attached confirmation sheet and Agreement To Mediate.
*** CONFIDENTIALITY NOTICE '*'
The information and documents transmitted by this telecopy may be CONFIDENTIAL AND/OR
PRIVILEGED. The information is intended only for the person(s) named above. If you are not the
intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you
are hereby notified that any distribution, copying, disclosure or use of this facsimile or the
information it contains is strictly prohibited. If you have received this facsimile in error, please notify
us immediately by telephone, and return the original to us at the above address viathe u.5. Postal
Service_ Thank you.
If you do not receive all of these pages, please contact the office as soon as possible.
tAI
SAhmanasewlchVormsWedlatlon Confirmation HM 5128199
05;28;99 FRI 11:25 FAX 1317 727 8495 10DR 0002
THE COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS OFFICE OF DISPUTE RESOLUTION
100 Cambridge Street, Room 1005
Boston, MA 02202
FREDIE D.KAY TEL:(617)727-2224
EXECUTIVE DIRECTOR FAX:(617) 727-6495
MEMORANDUM
To: Dorothy Motouris, Esq., MA DEP;
Craig Burnham, President, Burnham Associates;
Keith Kauppila, Esq_, Representing Burnham Associates;
Kevin Daly, Esq. Representing the City of Salem:
Steve Dibble, Administrator, Salem Conservation Commission;
CC: Sam Bennett, MA DEP: Susan Podziba
From: Harry Manasewich, Government Programs Coordinator
Date: May 28, 1999
RE: Mediation Confirmation and Agreement to Mediate
This is to confirm that a mediation session has been arranged and is scheduled
as follows:
Date: June 10, 1999
Time: 9 a.m.
Location: MA Office of Dispute Resolution, Sakonstall Building, 100
Cambridge Street, Room 1005 (101' floor), Boston, MA
You have chosen Susan Podziba to be your mediator_ A typical mediation
session lasts between three to four hours. Additional time and more than one
session may be required to address all the issues. Please plan your schedule
accordingly_ Review the enclosed information sheets on mediation to learn more
about the process_
Please send the mediator a 2 to 3 page overview of the case including your
perspective of the issues and any relevant law you will be discussing. She can
be reached at 617-738-6911. Additionally, kindly complete the enclosed
Agreement to Mediate and fax it to me as soon as possible_
We are pleased that you have elected to try mediation and hope the process will
be helpful for your case. Please feel free to contact me at extension 313 if you
need directions or have any questions.
k1NNF-CBO.NTS_tNAOOR\hiMansaewich''casas',8urnhem AsslBUmham Ass-DEP-Salem MediationConfimation.doc
t�
L_
05, 28/99 FRI 13:25 FAX 617 727 6495 MODR 1@003
Massachusetts Department of Environmental Protection
Office of General Council
Mediation Program
Massachusetts Office of Dispute Resolution
AGREEMENT TO PARTICIPATE IN MEDIATION
The undersigned parties agree to participate in mediated negotiations, as specified in the
terms and provisions below, for the purpose of resolving disputes among the parties related
to the following case:
Case Name: Burnham Associates-DEP-City of Salem
DEP#:
MODR#:
Parties: There shall be 3 parties to this mediation as follows:
I)MA DEP as represented by Dorothy Motouris, Esq;
2) Burnham Associates as represented by Craig Burnham, President, and
Keith Kauppila,Esq.;
3) The City of Salem and the Salem Conservation Commission as represented by
Kevin Daly, Esq. and Steve Dibble, Salem Conservation Commission
Administrator_
Volunta Partici anion: The parties understand that participation in mediation is
vo untary an at ey may withdraw at any time without prejudice. Withdrawing parties
remain bound by the confidentiality provisions stated below and remain bound by any
payment obligations incurred as part of this agreement.
Can tdentrali of Communications: The parties understand that the discussions that take
p ace uttng m ation are ro ential, as provided for in MGL Ch. 233, Sec. 23C and
that the mediator will use available legal precedent to preserve that confidentiality_ There
will be no verbatim record or formal minutes of any mediation session.
Authority: The parties agree to attend the mediation session(s) and to bring with them to
ffie me Latton session(s) any other person needed to agree to settlement or, if necessary,to
make arrangements for those persons to be available by telephone during the mediation. If
a party is unable to attend,they agree to send in their place the principal Derson(s)
authorized to negotiate on their behalf aid make settlement decisions-nroviAinn ill.„
andlor other persons needed to agree to settlement are available by Dhone durinv the
mediation.
Ne a ar- Tha nart;Pc,inAPrcta,A ti.pt A, t,.•,,._
---- t •• ••�+a� Ylvrav u v.7 'Lie 1v14SJ[I1.r111JGLLS V111Ge
0� Resolution QPNP.0 At Th&"IPLC111V oFrho sties -A ...:.L ♦L_.__,,.,,_l
_ - i__ _ - .yauiucta paw__-_.
-Ii-
The mediator will disclose anv Prior rel--onchin s111P n1a.,to v,1, a A,rl,- n =
- - - - -
role of the mediator is to facilitate negotiations The mediator shalt nr r= - As-;_�
the resolution of the parties' differences and will not Provide the parties with !eT71 -A-:--
or counsel-
UZ
11ANF-CRn VTS
05/28/99 FRI 13:-213 FAX 1317 727 13495 10DR 1a004
Fees: A$600 mediator fee payable to the mediator will be divided equally among the
parties and due at the conclusion of each mediation session (DEP will pay its share
through MODR via its Interagency Service Agreement), The fee includes a mediation
session of up to four hours inclusive of the mediator's preparation for that session and their
travel time to and from the session. If the parties choose to continue the mediation beyond
the first session, the mediator fee is $100 per how to be divided equally among the parties.
Late Cancellation Penaft: The parties understand that a late cancellation fee($3001 may
e assessed or_poste_ omnia or canceline a mediation session with less than seven calendar
days notice. V
The undersigned hereby agrees to these terms and conditions.
Name(p::nt or t;�) Phone
Signature Date
Address(print or t.—r-)
\4ANF{BO.NTS.I IMODR\BMznsewith\ceseslBumham A \ATM•Bumham-DFPCiry of Salem.doc Pace 2 of 2
05:28/99 FRI 13:28 FAX 617 727 6495 MODR C[1J 005
THE COMMON
VvEA6TH OF MP.SSACH;lSE??S
MASSACHUS€iiS OFFICE OF uiSPUTE RESOLUTION
100 Cambridge Street. Room 1005
Boston, MA 02202
FREDIE D.KAY TEL: i...+
EXECUTIVE DIRECTOR
FAX
to a 1 7-47-2224FAX(647)TG%-VQ9J
Mediation Information Sheet
The Massachusetts Of oc of Dispute Resolution(MODR) is a state agency
providing high quality mediation, ease evaluation,training,.meedrig facilitation, and other
alternative dispute resolution services. Established in 1985, MODR designs and
implements innovative dispute resolution programs, delivers dispute resolution services
and promotes the resolution of disputes by training others in negotiation and mediation
shills. Mediation is the primary service provided by MODR.
What is Mediation?
Mediation is a voluntary,confidential and flexible process that helps disputing
parties to fashion their own agreements. Agreements reached in mediation can often
meet the needs of all involved parties. Disputants are more likely to comply with an
agreement that they themselves negotiated. The confidentiality of the mediation process
is protected by M.G.L. Chapter 233, Section 23C.
What Mappens in Mediation?
_ r
the typical mediation.rr' '-- =- ,
�-»-�4�.a:� ray a.aac tads approximately three hours.
Mediation in mUl[i=t:a.:j Ca;--aas$y iL-x- CVUUUVieu uuongh a Series v1 sessivas scnod=u
TA TT1MP1 fhP ,1oPf3c of YtsG-n�:cr. "
••• _ -______ rg� •-.�-yj;T1II;iu..�.uuf, vi "LG paaTia:S ants inc al,{callaWS.
-_=-._., -. ---' -__ _ ....e .....,..aacnt;avcvs•, auSwc15 yucsiions and asks
- ` - -
"fid __.1 • aa_ _.n. _ _ _.__.__.
310 CMR 10. 99 /GI DEP File No. 64-249
i
i'
Form 9 - - ��.�'T--fN (To be provided by DEP)
City/ion Salem
/ OGS 1 m6\
CODaDom✓ealth l/n�? Applicant Burnham Associates, Inc
of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, $40
From Salem C r' - r ins}efl Issuing Authority
To Burnham Associates, Inc. 26 Dearborn Street
October 10, 1996
Date of Issuance
Property lot/parcel number, address 70A North Street
Extent and type of activity: Shoreline disturbance,possible dredging., and
storage of barges, crane, and equipment.
The Commission has .determined that the activity described
above is in violation of the Wetlands Protection Act,' G.L. c. 131, §40, and
the Regulations prcmu:gated pursuant thereto, 310 CMR 1.0.00, because:
® said activity has been/is being conducted without a valid Order of
Conditions.
❑ Said activity has been/is being conducted in violation of an Order of
Conditions issued tc dated ,
File number Condition number(s)
❑ Other (specify)
The Commission hereby orders the following:
® The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
❑ wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
Effective 11/10/89 9-1-
PHILIP G.COATffi - .900
DIRECTOR _. 0.220.2 - 727-3193
August 3, 1998 �d _s
James Sprague AUG 13 19oq
Mass. Dept. of Environmental Protection Salem Plann.
Division of Wetlands and Waterways
One Winter Street
Boston, MA 02202
RE: Burnham Barges at North River, Salem
Dear Jim:
We would like to respond to a request from Ralph Perkins of your office for information on
potential impacts from a project on the North River, Salem, that involves the construction of a
180 ft. bulkhead and associated use for servicing barges. We have not received a project
description or public notice of a permit application. It is our understanding that the use of the
North River intertidal flats for barge storage has been controversial for years because of potential
resource impacts and that the Order of Conditions for this current proposal was denied by the
Salem Conservation Commission. Our comments in this letter summarize a recent site visit(see
attached) are a response the resource and impact information requests and do not preclude DMF
comments under subsequent public notices.
As noted in the attached memorandum, low concentrations of soft shell clams were found during
1997 and 1998 site visits in the vicinity of were barges are stored on intertidal flats. These
observations are contrary to the assertion that"these regions no longer serve as habitats for
significant resources such as the soft shell clam"and "it is apparent that soft shell clarns have not
been able to re-colonize the North River"found in the document prepared for the project
proponent(Marine Environmental Conditions Adjacent to the Burnham Property in the Salem
North River, Allan Michaels, no date).
Clearly, these intertidal areas are degraded from decades of industrial discharges in the North
River and the recent Beverly-Salem Bridge project by the Mass. Highway Department found
Class IIIB sediments near Route 114. The densities of clams found are low and the beds have
been closed for over 30 years due to bacterial contamination. Despite these degraded conditions,
we do not support the use of these intertidal flats for long-term barge storage. For most intertidal
regions of the Commonwealth, we would strongly oppose such practices. Because of the
degraded conditions found in the North River we considered this case carefully and reserve from
offering formal recommendation on alternatives until future uses of the bulkhead are clearly
outlined during a public process.
We have expectations that resource conditions will improve in the North River as the industrial
discharges have ceased and water quality has shown recent evidence of improvement. Substantial
shellfish resources are found at the mouth of North River and it is probable that these populations
will assist the re-colonization of many regions of the North River below Route 114. The barges
are now clearly impacting the habitat they rest on and adjacent areas as they move with the flood
tide. These flats have present value as habitat for soft shell clams and other marine organisms
and can be expected to have enhanced value as water quality improves and if negative practices
such as long-term storage of barges are eliminated.
A key issue with this practice is the duration of barge storage. These barges have been observed
to rest in this region for many months at a time, going back at least ten years. Long-term barge
storage has impacted the intertidal area below the Route 114 bridge and we do not support the
continuance of this practice. Please consider permit restrictions that will allow bulkhead use
without the practice of long term storage on intertidal habitats.
Sincerely,
Philip G. Coates
Director
cc:
Eric Hutchins,NMFS, Gloucester
Ralph Perkins, DEP, Boston
W. Leigh Bridges, DMF, Boston
Jeff Kennedy, DMF,Newburyport
Brad Chase, DMF, Gloucester
Steve DibbleCity o_f Sale�=
A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CRAIG C. BURNHAM, individually and as )
Trustee of the Franklin Street Realty Trust, and )
BURNHAM ASSOCIATES, INC. )
Plaintiff )
V. ) 98-CV11997-REK
CITY OF SALEM, MASSACHUSETTS, CITY OF SALEM )
CONSERVATION COMMISSION, LEO E. TREMBLAY, )
Individually and as Inspector of Buildings if the )
City of Salem, and NEIL J. HARRINGTON, )
individually and Mayor of the City of Salem, Massachusetts, )
Defendants )
1
ANSWERS OF THE SALEM CONSERVATION COMMISSION
BY BURNHAM ASSOCIATES, INC.
INTERROGATORY
Please state your name, current residential address, occupation and business address.
ANSWER 1
Mark E. George, 26 Settler's Way, Salem, MA , real estate appraiser, 81 Washington Street,
Salem, MA.
INTERROGATORY 2
Please state in detail each and every fact upon which you base your allegations in paragraph 6 of
Defendants' Counterclaim that the plaintiffs' use of the property at 70A North Street has been and is
being conducted without a valid Order of Condition.
r
ANSWER 2
On October 10, 1996 the Conservation Commission served a Cease and Desist Order on the
owner of 70A North Street regarding his activities at the site. By law he was then obligated to file with
the Conservation Commission a Notice of Intent or a Determination of Applicability. He did neither.
INTERROGATORY 3
Please state in detail each and every fact upon which you based the allegations set forth in
paragraph 8 of the Defendants' Counterclaims.
ANSWER3
The owner of 70A North Street has continued and, in fact, expanded the activities at the site and
failed to file the appropriate documentation which the Conservation Commission as stated in answer no.
INTERROGATORY 4
Please state in detail each and every fact upon which you based the allegations set forth in
paragraph 9 of the Defendants' Counterclaim
ANSWER 4 '
The owner of 70A North Street was served a Cease and Desist Order October 10, 1996 which
states the activities with which the Conservation Commission was concerned. He failed to then file the
appropriate documentation as stated in answers no. 2 and 3.
INTERROGATORY 5
Please state in detail each and every fact upon which you base the allegations set forth in
paragraph 15 of the Defendants' Counterclaim.
ANSWER 5
I have no involvement with the allegations contained in paragraph 15. Those allegations do not
apply to the Conservation Commission.
INTERROGATORY
Please state in detail each and every fact upon which you base the allegations set forth in
paragraph 17 of the Defendants' Counterclaim.
ANSWER 6
The owner of 70A North Street utilizes "spud pilings" at the site without permits. He has caused
destruction of vegetation at the site. The storage of the heavy equipment may have accelerated the
deterioration of existing rip-rap. There is also a question of petroleum leakage from the equipment and
collateral impact on contiguous parcels.
INTERROGATORY 7
Please state in detail each and every fact upon which you base the allegations set forth in
paragraph 19 of the Defendants' Counterclaim
ANSWER
See answers nos. 2,3,4 and 6.
INTERROGATORY 8
Please identify each and every document you intend to offer as an exhibit at the time of trial.
ANSWER 8
It has not yet been determined what documentation will be offered at trial.
INTERROGATORY 9
Please state in detail your knowledge and understanding of the facts surrounding the complaint
field on behalf of the Salem Conservation Commission against Burnham Associates, Inc. in Salem
Superior Court, Civil Action No. 93-2587B.
ANSWER9
It is my understanding that the Conservation Commission issued a Cease and Desist Order
against the owner of 14 Franklin Street in December 1992. The owner refused to file the appropriate
documentation with the Conservation Commission and therefore the attorney for the Conservation
Commission filed suit.
INTERROGATORY 10
Please identify in detail any and all correspondence or discussions you had with anyone, other
than your attorneys, regarding the complaint filed against Burnham Associates, Inc. in Salem Superior
Court Action No. 93-2587B. Include in your answer, the name and address of the individual or
individuals with whom you spoke or corresponded with, the date(s)the correspondence or discussion(s)
took place, whether the discussion was oral or written, who was present during the discussion, and the
substance of the correspondence or discussion
ANSWER 10
Other than speaking with the Conservation Commission's attorney, I have had no involvement in
case no. 93-2587B
INTERROGATORY 11
Please state whether you were involved in anyway with the complaint filed against Burnham
Associates, Inc. in Salem Superior Court, Civil Action No. 93-2587B.
ANSWER 11
No
INTERROGATORY 12
If your answer to the preceding interrogatory is in the affirmative, please state in detail your
involvement, the facts which you relied upon in support of the allegations set forth in the complaint
brought against Burnham Associates, Inc. in Superior Court, civil Action No. 93-2587B and everything
you did before the complaint was filed, to determine the validity of the allegations set forth therein.
ANSWER 12
N/A
INTERROGATORY 13
Please state in detail your knowledge and understanding of the facts surrounding the Motions for
Preliminary Injunction filed in Essex Superior Court, Civil Action No. 93-2587B.
ANSWER 13
None
INTERROGATORY 14
Please identify in detail any and all correspondence or discussions you had with anyone, other
than your attorneys, regarding the Motions for Preliminary Injunction filed in Essex Superior Court,
Civil Action No. 93-2587B. Include in your answer, the name and address of the individual or
individuals with whom you spoke or corresponded with, the date(s) the correspondence or discussion(s)
took place, whether the discussion was oral or written, who was present during the discussion, and the
substance of the correspondence or discussion
ANSWER 14
None.
INTERROGATORY 15
Please state whether you were involved in anyway with the Motions for Preliminary Injunction
filed in the Essex Superior Court, Civil Action No. 93-2587B
ANSWER 15
No.
INTERROGATORY 16
If your answer to the preceding interrogatory is in the affirmative, please state in detail your
involvement, all facts which you relied upon and/or based the Motions for Preliminary Injunction filed
in Essex Superior Court, Civil Action No. 93-2587B and everything you did before the motions were
filed, to determine the validity of the allegations set forth therein.
ANSWER 16
N/A.
INTERROGATORY17
Please state in detail your knowledge and understanding of the facts surrounding the Salem
Conservation Commission's Petition in Intervene and Opposition to Burnham Associates, Inc.'s
Waterways License Application for the property located at 70A North Street, dated September 9, 1997.
ANSWER 17
The owner of 70A North Street applied for a Chapter 91 license to repair the seawall at 70A
North Street without addressing the many other concerns of the Conservation Commission. The
Conservation Commission authorized its attorney to submit a Petition to Intervene in that application.
INTERROGATORY 18
Please identify in detail any and all correspondence or discussions you had with any one, other
than your attorneys, regarding the City of Salem Conservation Commission Petition to Intervene and
Opposition to Burnham Associates, Inc.'s Waterways License Application for the property located at
70A North Street, dated September 9, 1997. Include in your answer, the name and address of the
individual or individuals with whom you spoke or corresponded with, the date(s) the correspondence or
discussion(s) took place, whether the discussion was oral or written, who was present during the
discussion, and the substance of the correspondence or discussion.
ANSWER 18
To the best of my memory, the only other discussions were at a meeting of the Conservation
Commission when we ratified the Petition to Intervene.
INTERROGATORY 19
Please state whether you were involved in anyway with the Petition to Intervene and Opposition
to Burnham Associates, Inc.'s Waterways License Application for the property located at 70A North
Street, dated September 9, 1997
ANSWER 19
Yes.
INTERROGATORY 20
If your answer to the preceding interrogator is in the affirmative, please state in detail your involvement,
the facts which you relied upon in support of the Petition to Intervene and Opposition to Burnham
Associates, Inc.'s Waterways License Application and everything you did to determine the validity of
the facts which you relied upon, before the Petition to Intervene and Opposition was created.
ANSWER 20
As a member of the Conservation Commission I approved the filing of the Petition to Intervene.
INTERROGATORY21
Please identify the name, address and title of the current members, officers and/or employees of
the Salem Conservation Commission.
ANSWER 21
Abby Bums, 15,Chestnut Street, Salem, MA 01970
Kevin P. Comacchio, 6 Beachmount Road, Salem, MA 01970
Rebecca Curran, 14 Clifton Avenue, Salem, MA 01970
Mark E. George, Chair, 26 Settlers Way, Salem, MA 01970
Debra A. Hurlbert, 7 Milk Street, Salem, MA 01970
Paul E. Orr, 40 English Street, Salem, MA 01970
Administrator: Stephen Dibble, Salem Conservation Commission, City Planning Department,
One Salem Green, Salem, MA 01970
INTERROGATORY 22
Please identify the name, address and title of the members, commissioners, officers and/or
employees of the Salem Conservation Commission from 1992 to the present.
ANSWER 22
Richard F. Arms, 22 Grant Road, Salem, MA 01970
Abby Bums, IS Chestnut Street, Salem, MA 01970
5 Buffum Street Salem MA 01970
Robert Crowley, 3 ,
Fred Hamey, 474 Lafayette Street, Salem MA 01970
Betsy Home, Chair, 4 Cedarcrest Avenue, Salem, MA 01970
Chris Kent, 6 Harborview Terrace, Salem, MA 01970
Tom Walsh, 12 Scotia Street, Salem, MA 01970
Administrator: Elizabeth Debski, 43 Calumet Street, Salem, MA 01970
Signed under the pains and penalties of perjury.
Dated: MARK . GEO E
C 0 V E R
FAX
S H E E T
To: Bradford Chase, Mass Division of Marine Fisheries
Fax#: 617 727 3337
CC: Salem Conservation Commission
Kevin Daly, Attn for the Conservation Commission
Subject: Request for information on mud flat issues
Date: January 30, 1998
Pages: 1, including this cover sheet.
At the request of the Salem Conservation Commission, I am requesting any information
you can provide to clarify (1)the legalities and (2)the ecological impact of locating and storing
barges on mud flats at the upper end of the North River at 70A North Street. The existing barges
seem to sit on or as one Commissioner says smoother the mudflat for the majority of the day due
to lessened tidal activity with the low water mark, as the applicant indicated, being located over a
mile away.
The Commission recently closed a Notice of Intent Public Hearing for the construction of
a seawall at 70A North Street to be used for the purposes of loading and unloading barges. The
Commission needs to issue or deny an Order of Conditions prior to Feb 12th. The Commission
has tentatively scheduled a meeting for Feb 10, 5:30 pm to issue its decision. I will need the
requested information by Feb 9th for distribution to each Commissioner for review prior to the
meeting. The Commission has also requested your attendance at this meeting to assist in
explaining the more technical aspects related to these issues.
I apologize for the relatively short notice but it was unforeseen. On behalf of the
Commission, thank you for you assistance in this matter.,
sd/concom/misc/b=barg
From the desk of...
Stephen Dibble
Assistant Planner
City of Salem, Planning Dept.
One Salem Green
Salem, MA.,01970
(508)745 9595 ext. 311
Fax: (508)740 0404
. 310 CMR 10. 99 . DEP File NO.
Form 9 (To be provided by DEP)
City/Tan Salem
Applicant
Commonwealth
of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, §40
From Salem Conservation Commission - Issuing Authority
To Massachusetts Bay Transportation Authority
Date of Issuance January 29, 1998
M36 L182 Along .North River beside Salem/Beverly
Property lot/parcel number, address
BridT and beyond Ames Street to West of tracks
Extent and type of activity:
Alteration to shoreline and storage of equipment
The Commissionhas determined that the activity described
above is in violation of the Wetlands Protection Act,' G.L. c. 131, §40, and
the Regulations promulgated pursuant thereto, 310 CMR 10.00, because:
® Said activity has been/is being conducted without a valid Order of
Conditions.
❑ Said activity has been/is being conducted in violation of an Order of
Conditions issued to dated ,
File number Condition number(s)
❑ Other (specify)
i
The Commission hereby orders the following:
® The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
Wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
Effective 11/10/89 9-1
Issued by Salem Conservation Commission
❑ Completed ap-lication forms and plans as required by the Act and
Regulations shall be filed with the
on or before (date) ,
and no further work shall be performed until a public hearing has been held '
and an Order of Conditions has been issued to regulate said work.
. .Application forms are available at:
® The property owner shall take every reasonable step to prevent' further
violations of the act.
0 Other (specify)
1. Immediately remove all equipment including ten large diameter tubes
each being approximately 300-400 feet long being anchored and/or
tied off.
2. Any additional alterations to wetlands shall require Conservation
Commission approval
Failure to comply with this Order may constitute grounds for legal action,
Massachusetts General Laws Chapter- 131, Section 40 provides :
Whoever violates any provision of this section shall be punished
by a fine of not more than twenty-five thousand dollars or by
imprisonment for not more than two years or both, Each day or
portion thereof of continuing violation shall constitute a separate
offense.
Questions regarding this Enforcement Order should be directed to
Salem .Planning Department 745-9595 ext. 311 - Stephen Dibble
Issued by Salem nS ion—qo ission
Signature(s)
(Signature of delivery person
or certified mail number)
9-2b
Commonwealth of Massachusetts
Essex, ss.
Trial Court of the Commonwealth
District Court Department
Salem Division
Docket Nos.: 9736 CR 3446
3449
4002
4003
9836 CR 2192
Commonwealth
vs.
Craig C. Burnham, Trustee and
Burnham Associates, Inc.,
Defendants
Stipulated to Order of Pre Trial Probation,
G.L. Ch. 276, s. 87:
These matters came on for trial before the Court on January 14 and February 11, 1999. By
stipulation of the parties, all matters are continued generally by the Court upon conditions of pre
trial probation pursuant to G.L. Ch. 276, s. 87 as follows:
Said general continuance shall be for a period of one year until February 11, 2000 and at that
time, the defendants otherwise being in compliance with those conditions of pre trial probation as
set out hereunder, each of these complaints shall then be dismissed by the Court. For purposes of
this pre trial probation supervision the defendants waive their speedy trial rights in these cases and
both the Commonwealth and defendants stipulate that they shall exercise their best efforts in
reasonable fashion and act in good faith with each other and the Court to effectuate the remedies
and outcomes called for in this order. All outstanding motions before the Court in these cases are
deemed withdrawn by the parties at this time without prejudice.
I.
The parties stipulate as to those matters involving the wetlands protection act (G.L. Ch. 13 1)
currently pending before the Superior Court as follows:
They shall meet within 60 days hereof to seek a negotiated settlement as to those matters and
issues now pending. In the event no such settlement can be achieved between the parties after
such meeting, they shall either seek to bring forward said pending Superior Court matter before
the Court (Bohn, J.) for final determination, rulings and order of judgment or before this Court
(Cometta, J.) for evidentiary hearing and stipulation as to binding rulings and orders in settlement
of the same. Thereupon a final consent decree shall be endorsed between them and filed with the
Superior Court resolving that litigation.
II.
The parties stipulate as follows as to matters involving allegations of violations of 42 USC 1983,
et al, including civil rights and due process violation claims and related actions now pending
before the United States District Court for Massachusetts or in state court:
That as to all such proceedings whether currently pending in state or federal court, all evidence of
the above-referenced criminal complaints pending before this Court and the criminal
investigations/enforcement surrounding them shall be excluded from admission as trial evidence
from all such pending actions.
The parties or either of them may file with the United States District Court or any court of the
Commonwealth a certified copy of this order thereby establishing conclusively the exclusion of all
such evidence in the trial of those pending matters as found in federal or state court.
IIL
The defendants shall pay over to=the City of Salem's general fund within thirty (30) days hereof
the sums of$5,000.00 in prosecutorial costs as to docket numbers 3446 and 3449 of 1997 and
$2,500.00 in prosecutorial costs as to docket numbers 4002 and 4003 of 1997 and 2192 of 1998.
IV.
All currently issued and pending city ordinance violation citations held by the City of Salem
against either or both of the defendants (approximately fifteen (15) in number) and involving
premises located at either 14 Franklin Street or 70A North Street, Salem, Massachusetts shall be
administratively dismissed by the city of Salem forthwith without prejudice.
V.
As to those premises situated at 14 Franklin Street, the following is stipulated to by the parties:
1. The defendants shall within thirty (30) days supply to the building inspector of the City of
Salem a notarized affidavit sworn under pains and penalties of perjury issued by a builder licensed
by the Commonwealth of Massachusetts (who shall not be the defendant Burnham nor anyone
related to him by blood or marriage) certifying to the City of Salem that all construction and
improvements made upon the building at that location are in compliance with the state building
code and the health, safety and fire ordinances of the City of Salem. If said premises must have
corrective action taken upon them in order for said licensed builder to so certify such compliance,
those remedial repairs or remedial construction shall be accomplished within said same thirty (30)
days period.
2. Upon receipt of said certification, the City of Salem shall immediately cause to be made
1
inspections of the premises by its code enforcement personnel, including building, plumbing,
electrical and fire departments as deemed necessary. Legitimate defects or code violations (if any)
shall be immediately called to the attention of the defendants by the city, shall thereupon be
immediately remedied by the defendants and thereafter an occupancy permit for the building at 14
Franklin Street shall be issued to the defendants by the City of Salem.
3. The defendants shall not use or occupy the premises thereafter for any use other than those
permitted by right in a B-5 zone under the zoning ordinance of the City of Salem unless they are
granted a use variance for the premises as provided for by the zoning ordinance of the City of
Salem or by state law.
4. Immediately upon the issuance of an occupancy permit for said premises by the City of Salem,
the defendants shall cause to be removed from the premises the two storage trailers currently
found on the premises. The trailers shall be removed in their entirety from the premises no later
than fourteen (14) days after the issuance of said occupancy permit.
5. During the time that the defendants are accomplishing those tasks necessary for the City to
issue and occupancy permit for said premises, the defendants shall also apply for and be granted a
permit (after paying any required permit fees) from the City of Salem to open the street and
reconnect municipal water and sewer service to the premises and thereupon shall so connect said
utilities to the building in compliance with applicable rules and regulations of the City of Salem
regarding street openings and utility connections and metering.
6. Immediately upon the filing of this stipulation, the defendants shall apply to the City of Salem
for any special permits necessary to maintain four container units upon the premises. In the event
the city shall have valid and reasonable objections to the issuance of such permit(s), it shall
immediately reduce the same to writing. Upon this occurance, the defendants shall have the right
to pursue appeal of such objections in timely fashion as provided for by law and pending such
appeal may maintain said containers upon the premises.
Vi.
As to those premises situated at 70A North Street, Salem, Massachusetts, the following is
stipulated to between the parties:
1. Within sixty (60) days hereof, (weather permitting and with an extension of one day for each
day of inclement weather which prevents work) the defendants shall undertake and complete the
clean up of said premises as to all derelict and unused equipment, debris and refuse. All articles
and materials so removed shall be lawfully disposed of by the defendants. This clean up shall
include but not be limited to old vehicles, equipment, pilings, discarded building materials, metals,
junk, wood, paper, cardboard, concrete, glass, plastics, demolition materials and the like. The
clean up of said premises shall reasonably improve the safety and aesthetics of said premises for
the benefit of the City of Salem and its residents.
2. The future use, maintenance or storage of any spud barges upon said premises or in waters
I
abutting said premises shall be subject to coordination and reasonable approval and oversight by
the City of Salem's Harbor master and the Salem Conservation Commission according to
applicable law. Any future disputes between the parties concerning the same shall immediately be
brought before this Court for evidentiary hearing and determination.
3. The City of Salem shall be free at its own expense and liability to fence its property line(s)
between its premises and those of the defendants at 70A North Street. Until the city does so, the
defendants at their own risk and liability in common with others may continue to pass and repass
over such city lands for access to 70A North Street. The defendants shall not alter or in any way
injure said lands of the city and shall not be afforded any rights of proscription against the city or
any third party(ies) by virtue of this provision.
4. All dredge pipes owned by the defendants shall be stored entirely upon their own property or
the defendants shall seek permission from the city and others to store and maintain the same upon
the premises of third party abuttors. The City of Salem shall not unreasonably withhold its
permission to so store such items subject to proper conditions which it may impose upon the
defendants. In the event the defendants are unable to accomplish the same due to lack of
permission from third party property Owners within the zoning district, the defendants shall either
store the same entirely upon their own premises by modifying the dredge pipes within 60 days
hereof or with said same 60 days period remove said dredge pipes from the premises altogether to
a location outside the City of Salem and waterways under its jurisdiction. Any disagreement
arising between the parties as to this matter shall be immediately submitted to the Court by the
parties for evidentiary hearing and determination.
5. The parties stipulate that within 60 days hereof they shall meet to resolve those matters
currently on appeal to the Department of Environmental Protection and/or Land Court and
involving the reconstruction of a sea wall upon defendants' premises. Resolution of said appeal
shall seek to accomplish the issuance of a mutually acceptable superseding order of conditions
from the Department of Environmental Protection regarding the reconstruction/repair of said sea
wall. In the event the parties shall be unable to resolve this matter in a mutually acceptable
fashion, they shall immediately submit the same to the Court for determination after hearing.
VII.
The defendants shall be subject to a regular probation supervision fee in the amount of$100.00
per month payable to the Probation Department of the Salem District Court. The Probation
Department shall assign a Probation Officer to these cases in the normal course who shall oversee
thedefendants' probation supervision. Violations of pre trial probation in these cases shall subject
the defendants to having their cases brought forward for VOP hearing and sanctions as provided
for by law including the further criminal prosecution of the pending cases by the Commonwealth.
The parties stipulate that these conditions shall be entered by the Court as an order of pre trial
probation conditions pursuant to General Laws Chapter 276, section 87 and shall be so
enforceable by the Court.
Entered: February 11, 1999
Stipulated to by:
Kevin T. Daly, Esquire on behalf of
the City of Salem and as Special
Prosecutor for the Commonwealth
of Massachusetts
Attorney John T. Fitzpatrick, counsel
for the defendants Craig C. Burnham,
Trustee and Burnham Associates, Inc.
Approved by the Court and Entered as an
Order of the Court:
Honorable Robert A. Cornetta, n
Justice, Salem District Court
310 CMR 10.99 DEP File No.
64-271
(To be provided by DEP)
Pozm 5
city/Tour Salem
Applicant Burnham Associates
Covmlonwealrb '
of Massachusetts
DENIED
Order of Conditions
Massachuetts Wetlands Protection Act
G.L. c . 131, §40
From Salem Conservation Commission Issuing Authority
To Burnham Aagnrintac Same
(Name of Applicant) (Name of property owner)
MA 01970
� Address Address
26 Dearborn Street Salem A
This Order is issued and delivered as follows:
❑ by hand delivery to applicant or representative on (date)
by certified mail, return receipt requested on February 11, 1998 (date)
This project is located at 70A North Street
The property is recorded at the Registry of Essex
Book 13256 page 276
Certificate (if registered)
The Notice of Intent for this project was filed on 12/8/97 (date)
The public hearing was closed on 1/22/98 (date)
Findings
Commission
The has reviewed the above referenced Mo[ice of Intent and plans and has
held a public hearing,on the project. eased on the information available to the Commission at this
time, the Commission has determined that the area on which the proposed work is to be done is
significant to the following interests in accordance with the Presurptions of Significance set forth in the
regulations for each Area Subject to Protection under the Ac[ (check as appropriate): _
Public water supply Flood Control land containing shellfish
Private water supply Storm damage prevention Fisheries
Ground water supply Prevention of pollution Protection of Wildlife Habitat
Total Filing Fee Suhnitted $360.00 State Share $167.50
(1/2 fee in excess of S25)
City/Town Share $192.50
Total Refund Due S City/Town Portion S State Portions
(1/2 total) (1/2 total)
Therefore, the Commission hereby finds that the following conditions
are necessary, in accordance with the Performance Standards set forth in the
regulations, tc protect those interests checked above. The Commission
orders that all work shall be performed in accordance with said conditions and
with the Notice of in referenced above. To the extent that the following
conditions modify or differ from the plans, specifications or other proposals
submitted with the Notice of Intent, the conditions shall control .
General Conditions
1 . Failure to comply with all conditions stated herein, and with all related
statutes and other regulatory measures, shall be deemed cause to revoke
or modify this Order.
2 . The Order does not grant any property rights or any exclusive privileges;
it does not authorize any injury to private property or invasion of
private rights.
3 . This Order does not relieve the permittee or any other person of the
necessity of complying with all other applicable federal, state or local
statutes, ordinances, by-laws or regulations .
4 . The work authorized hereunder shall be completed within three years from
the date of this Order unless either of the following apply:
(a) the work is a maintenance dredging projecc as provided for in the
Act; or
(b) the time for completion has been extended to a specified date more
than three years, but less than five years, from the date of issuance
and both that date and the special circumstances warranting the
extended time period are set forth in this Order.
5 . This Order may be extended by the issuing authority for one or more
periods of up to three years each upon application to the issuing
authority at least 30 days prior to the expiration date of the Order.
6 . Any sill used in connection with this project shall be clean fill
containing no crash, refuse, rubbish or debris, including bur not limited
to lumber, bricks, plaster, wire, lath, paper, cardboard, pipe, cines,
ashes, refrigerators, motor vehicles or parts of any of the foregoing .
7 . No work shall be undertaken until all administrative appeal a---- - from
this Order have elapsed or, if such an appeal has been filed, until all
proceedings before the Department have been completed.
a . No work shall be undertaken until the Final order has been recorded
in the Registry of Deeds or the Land Court for the district in which
the land is located, within the chain of title of the affected
property. In the case of recorded land, the Final Order shall also
be noted in the Registry' s Grantor Index under the name of the owner
of the land upon which the proposed work is to be done. In the case
of registered land, the Final order shall also be noted on the Land
Court Certificate of Title of the owner of the land upon which the
proposed work is to be done. The recording informatin shall be
submitted to the Commission on the form at the end of this Order
prior to commencement of the work.
9. A sign shall be displayed at the site not less than two square feet or
more than three square feet in size bearing the words,
"Massachusetts Department of Environmental Protection,
File Number 64-271
lo . Where the Department of Environmental Protection is requested to make a
determination and to issue a sumerseding Order, the Conservation
Commission shall be a party to all agency proceedings and hearings before
the Department.
5-2
1
11 . Unon completion of the work described herein, the applicant shall
forthwith request in writing that a Certificate of Compliance be issued
stating that, the work has been satisfactorily completed.
12 . The work shall conform to the following plans and special conditions :
Plans:
Title Dated Signed and Stamped by: On File with:
Notice of Intent
72 North Street 6/19/97 Daniial T.vnrhl&?nf9 Salem Conservation Comm
Special Conditions (Use additional paper if necessary)
Pursuant to 310 CMR 10.5 (6)(c),the Salem Conservation Commission voted by a vote of four(4)in favor,zero(0)opposed,
that the Conunission issue an order denying an Order of Conditions on the additional grounds that:
I. Applicant has been issued citations for violation of the Wetlands Protection Act pursuant to G.L.c.40,sec.21 D and has failed to pay the fines imposed
2.The proposed plans as presented do not satisfy the requirements of the Wetlands Protection Act,the Rivers Protection Act,and our local ordinance.
3.The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the
Conuuonswealth of Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the
use for ongoing access for cranes,heavy equipment,and other vehicles and for which dump trucks loaded with stone would be required to cross during
construction. There renmins also a question of the legality of the applicant utilizing the property directly north ofhis site as a right of stray.
4.There is an existing Enforcement Order,dated October 10.1996,for violations on 70A North Street for which the applicant was ordered to cease and
deist activities at the site. The applicant has failed to property respond to the Commission and has not ceased the cited activities.
5.The information submitted by the applicant with regard to the project's impact on filling in a section of the North River,is not sufficient to describe the site,
the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River.
6.The Notice of Intent describes work to be done but NOT OWNED BY APPLICANT to land and/or land underwater at high tide which includes filling of
a section of the North River and location of all or much of the proposed seawall,fender piles,spud piles,and other equipment and vessels of the applicant.
7.Chronic grounding of large vessels should be avoided because the grounding sill limit the productivity of the underlying intertidal habitat(see file lener of
Marine Fisheries Biologist Bradford C.Chase,dated February 9. 1993,from the Commonwealth of Massachusetts,Division of Marine Fisheries). The
information submitted by die applicant with regard to the project's impact on locating and storing barges on a section of the North River at 70A North Street is
nut swli:ient to describe the site,the work or the effect of the work on die interests identified in MGL eh.131 section 40 and to the Noah River.
S. Pursuant to G.4 c.40,sec.57 the Cominission is empowered to deny this application for the failure to pay fines as stated in paragraph I.
Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the work.
(Leave Space Blank) ,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5-3A
Issued By Salem' / Conservation Commission
S/i to e (s)_
Shh02CII ALA-
---r
This order must :De signed by a majority of the Conservation Commission.
On this 10th day. of February 19 98 , before me
personally appeared the above mentioned , to me known to be the
person described in and who executed the foregoing instrument and acknowledge
chat s e executed the same as his/her free act and deed.
ticeo c� �� GCS, i(, 119
`o ary Public My commission. a .pires
the applicant, the owner, any person agrr ieyed by this Order, any owner of land abutting the land upon whi c:
the proposed work is to be done, or any ten residents of the city or town in which such land is located, ar
hereby notified of their right to request the Department of Environmental Protection to issue a Superseding
Order, providing the request is made by certified mail or hand delivery to the Department, with the
appropriate filing fee and Fee Transmittal Form as provided in 310 CHR 10.03(7), within ten days from the
date of issuance of this determination. A copy of the request shall at the same time be sent by certified
mail or hand delivery to the Conservation Commission and the applicant.
Detach on dotted line and submit to the Commission prior to comxncement of work.
To Issuing Authority
Please be advised that the Order of Conditions for the project at
File Number has been recorded at the Registry of and
has been noted in the chain of title of the affected property in accordance with General Condition 8 on
,19
If recorded land, the instrument number which identifies this transaction is
If registered land, the document nurber which identifies this transaction is
Signature Applicant
5-Sr.
UNITED STATES POSTAL SERVICE ESSF �
Lim t r'F6R
Official Business , : i Y PEPRIVATE
USE AYMENT
t —OF,PO5TAG .
Print your name, address and ZIP Code here
• Salem Planning Dept. N,l- v•
1 Salem Green
Salem, MA. 01970
�f pV>I4ha,9�iil�lsrll�lllil, iIIIiIHdt11dill IIlli III,IIII Ili 11
v SENDER:
tl1 • Complete items 1 and/or 2 for additional services. I also Wish t0 receive the
m • Complete items 3,and 4a&b. following services (for an extra V
m • Print your name and address on the reverse at this form so that we can fee): •�
jreturn this card to you.
m
• Attach this farm to the front of the mailpiece,or on the back if space 1. ❑ Addressee's Address M
does not permit.
ym • Write"Return Receipt Requested"on the mailpiece below the article number. 2 ❑ Restricted Delivery G
• The Return Receipt will show to whom the article was delivered and the date V
C delivered. Consult postmaster for fee. m
v 33. Article Addressed to: 4a, Article Number a I
m �G��E, eve- Ql� D y'tel' �S =
Cc 4b. Service Type as I
❑ Registered ❑ Insured I
m'
(AC&Eertified ❑ COD E
W�� 7 �Wc, (� 70 ❑ Express Mail ❑ eturn Receipt for zcc j
/ {i i ` Merchandise
0 7. Date of Deljr, = l
Q > II
¢ S. Signature (Addressee) 9. Addressee's A dress(Only if requested m l
M and fee is paid) W
r
6. Signat re (Age ~
iDOMESTIC RETURN RECEIPT
, PS Form 3811, December 1991 nu.S.cva.t�eea-362-714
m
1
310 CMR 10. 99 DEP File No. 64-271
(To be provided by DEP)
Form 5
City/Town Salem
Applicant Burnham Associates
Cottmmonwealth
Of Massachusetts
DENIED
Order of Conditions
Massachuetts Wetlands Protection Act
G.L. c . 131, X40
From Salem Conservation Commission Issuing Authority
To Burnham Accnriat« Same
(Name of Applicant) (Name of property owner)
MA 26 Dearborn Street Salem 01970
Address Address
This Order is issued and delivered as follows:
❑ by hand delivery to applicant or representative on (date)
In by certified mail, return receipt requested on February 11, 1998 (date).
This project is located at 70A North street
The property is recorded at the Registry of Essex
Book 13256 page 276
Certificate (if registered)
The Notice of Intent for this project was filed on 12/8/97 (date)
The public hearing was closed on 1/22/98 (date)
Findings
Commission
The has reviewed the above-referenced Notice of Intent and plans andhas
held a public hearing.on the project. Based on the information available to the Commission at this
time, the Commission has determined that the area on which the proposed work is to be done is
significant to the following interests in accordance with the Presumptions of Significance se[ forth in the
regulations for each Area Subject to Protection Under the Act (check as appropriate):
Public water supply Flood Control lard containing shellfish
Private water supply Storm damage prevention Fisheries
Ground water supply Prevention of pollution Protection of wildlife Habitat
Total Filing Fee Submitted $360.00 State Share $167.50
(1/2 fee in excess of $25)
City/Town Share $192.50
Total Refund Due S City/Town Portion S State Portions
(1/2 total) (1/2 total)
rifer-r i..o i � /in/Qo ... _1
Therefore, the Commission hereby finds that the following conditions
are necessary, in accordance with the Performance Standards set forth in the
regulations, tc protect those interests checked above. The Commission
orders that all work shall be performed in accordance with said conditions and
with the Notice of in referenced above. To the extent that the following
conditions modify or differ from the plans, specifications or other proposals
submitted with the Notice of Intent, the conditions shall control.
General Conditions
1. Failure to comply with all conditions stated herein, and with all related
statutes and other regulatory measures, shall be deemed cause to revoke
or modify this Order.
2 . The Order does not grant any property rights or any exclusive privileges;
it does not authorize any injury to private property or invasion of
private rights. .
3 . This Order does not relieve the permittee or any other person of the
necessity of complying with all other applicable federal, state or local
statutes, ordinances, by-laws or regulations .
a . The work authorized hereunder shall be completed within three years from
the date of this Order unless either of the following apply:
(a) the work is a maintenance dredging project as provided for in the
Act; or
(b) the time for completion has been extended to a specified date more
than three years, but less than five years, from the date of issuance
and both that date and the special circumstances warranting the
extended time period are set forth in this Order.
S. This Order may be extended by the issuing authority for one or more
periods of up to three years each upon application to the issuing
authority at least 30 days prior to the expiration date of the Order.
6 . Any ) ill used in connection with this project shall be clean fill,
containing no crash, refuse, rubbish or debris, including but not limited
to lumber, bricks, plaster, wire, lath, caper, cardboard, pipe, tires,
ashes, refrigerators, motor vehicles or parts of any of the foregoing.
7 . No work, shall be undertaken until all administrative appeal periods from
this Order have elapsed or, if such an appeal has been filed, until all
proceedings before the Department have been completed. -
8 . No work shall be undertaken until the Final order has been recorded
in the Registry of Deeds or the Land Court for the district in which
the land is located, within the chain of title of the affected
property. In the case of recorded land, the Final Order shall also
be noted in the Registry's Grantor Index under the name of the owner
of the land upon which the proposed work is to be done. In the case
of registered land, the Final order shall also be noted on the Land
Court Certificate of Title of the owner of the land upon which the
proposed work is to be done. The recording informatin shall be
submitted to the Commission on the form at the end of this Order
prior to commencement of the work.
9. A sign shall be displayed at the site not less than two square feet or
more than three square feet in size bearing the words,
"Massachusetts Department of Environmental Protection,
File Number 64-271
10 . where the Department of Environmental Protection is requested to make a
determination and to issue a Superseding Order, the Conservation
Commission shall be a party cc all agency proceedings and hearings before
the Department .
5-2
i
11. Upon completion of the work described herein, the applicant Shall
forthwith request in writing that a Certificate of Compliance be issued
stating than the work has been satisfactorily completed.
12 . The work shall conform to the following plans and special conditions:
Plans:
Title Dated Signed and Stamped by: On File with:
Notice of Intent
72 North Street 6/19/97 Daniel T.vnrh3.&Jnf9 Salem Conservation Comm.
Special Conditions (Use additional paper if necessary)
Pursuant to 310 CMR 10.5 (6)(c),the Salem Conservation Commission voted by a vote of four(4)in favor,zero(0)opposed,
that the Conunission issue an order denying an Order of Conditions on the additional grounds that:
1. Applicant has been issued citations for violation of the Wetlands Protection Act pursuant to G.L.C.40,sec.21D and has failed to pay the fines imposed.
2.The proposed plans as presented do not satisfy the requirements of the Wetlands Protection Act,the Rivers Protection Act,and our local ordinance.
1 The proposed plans and submittals as presented and discussed have not proven that the abutting North River concrete culvert on land of the
Conunonovezlth of Massachusetts can support the proposed weight at a location the applicant indicated he crosses and plans to increase the crossing of for the
use for ongoing access for Banes,heavy equipment,and other vehicles and for which dump woks loaded with stone would be required to cross during
Conswction. There remains also a question of the legality of the applicant utilizing the property directly north of his site as a right of way.
4.There is an existing Enforcement Order,dated October 10,1996,for violations on 70A North Street for which the applicant taus ordered to cease and
desistactivities at the site. The applicant has failed to properly respond to the Commission and has not ceased the cited activities.
5.The information submitted by the applicant with regard to the project's impact on filling in a section of the North River,is not sufficient to describe the site,
the work or the effect of the work on the interests identified in MGL ch.131 section 40 and to the North River.
6.The Notice of Intent describes work to be done but NOT OWNED BY APPLICANT to land and/or land underwater at high tide which includes filling of
a section of the North River and location of all or much of the proposed seawall.fender piles,spud piles,and other equipment and vessels of the applicant.
7.Chronic grounding of large vessels should be avoided because the grounding will limit the productivity of the underlying intertidal habitat(see file letter of
Marine Fisheries Biologist Bradford C.Chase,dated February 9. 1998,from the Commonwealth of Massachusetts,Division of Marine Fisheries). The
infomration submitted by the applicant with regard to the project's impact on locating and storing barges on a section of the North River at 70A North Street is
not sunleient to describe the site,the work or the effect of the work on the interests identified in%IGL ch.131 section 40 and to the North River.
8. Pursuant to G.4 c.40,sec.57 the Conunission is empowered to deny this application for the failure to pay fines as stated in paragraph 1.
Therefore the Salem Conservation Commission issued an Order of Conditions prohibiting the Work.
(Leave Soace Blank) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5-3A
Issued By Salem" Conservation Commission
Si to e (s)
This Order must be signed by a majority of the Conservation Commission.
On this 10th day. of February 19 98 before me
personally appeared the above mentioned to me known to be the
person described in and who executed the foregoing instrument and acknowledged
chat s e executed the same as his/her free act and deed.
No ary Public My commission a Aires
The applicant, the owner, any person agrrieved by this Order, any owner of land abutting the land upon which
the proposed work is to be done, or any ten residents of the city or town in which such land is located, are
hereby rectified of their right to request the Department of Environmental Protection to issue a Superseding
order, providing the request is made by certified mail or hand delivery to the Department, with the
appropriate filing fee and Fee Transmittal Form as provided in 310 CXR 10.03(7), within ten days from the
date of issuance of this determination. A copy of the request shall at the same time be sent by certified
mail or hand delivery to the Conservation Commission and the applicant.
Detach on dotted line and submit to the Commission prior to commencement of work.
To Issuing Authority
Please be advised that the Order of Conditions for the project at
File Mlrtber has been recorded at the Registry of and li
has been noted in the chain of title of the affected property in accordance with General Condition B on
,19
If recorded land, the instrument number which identifies this transaction is
If registered lend, the document number which identifies this transaction is
Signature Applicant-
5-4A
i
�at ihiare ��atrree J'�yLiezicxl
wc
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Off m Aatwe a4A ne ��iryLu32ie6 ��
30 &no4on Ai,maee, Wu-kmceEii & 0/930
PHILIP G. CRATES )
DIRECTOR 1/508) ,28/.G-0308
February 9, 1998
Salem Conservation Commission —
City of Salem
One Salem Green
Salem, MA 01970
Sa!e. ,, '%CP
Dear Commission Members :
Upon your request I am responding to questions regarding the
storage of commercial barges on the tide flats at the upper end of
the North River, Salem. Having worked at the Cat Cove Marine
Laboratory for most of the previous decade, I am familiar with the
practice in question and of the local marine resources .
I looked into the issue from a permitting standpoint and did
not get a definitive answer on whether a state or federal permit is
needed in this case . The Commonwealth' s Wetlands Protection Act
requires a permit for projects that result in alterations to
intertidal wetlands . This use may qualify as an alteration. I
encourage you to seek clarification from the Massachusetts
Department of Environmental Protection on this question. As for
federal jurisdiction, the U. S . Army Corps of Engineers also require
permits for projects that alter habitats in navigable waterways .
If the barges are secured to moorings then it must be in a mooring
field permitted by the U. S . Army Corps of Engineers . It is my
understanding that no permits are held by the barge owner and the
use of the flats are supposed to be of short duration. The length
of the time the barges are stored on the flats may be a critical
issue for regulating this practice because impacts will become
obvious during long-term groundings .
From an ecological perspective, the issue is easier to
address . The chronic grounding of large vessels should be avoided
because the grounding will limit the productivity of underlying
intertidal habitat . The extent of the impact will depend on the
size of the barge and duration of the grounding in relation to the
tide cycle . Tidal flats have a high density of marine
invertebrates (clams, worms, crustaceans, ect . ) that need to
respire to support metabolic processes even during low tides when
no water is present . Large objects such as barges will cause
2
mortality to many types of organisms by direct physical damage,
degrading essential habitats, and restricting respiration . If the
barge is tethered to allow some movement then the impacts may
extend beyond that caused by just the surface area of the barge
hull . Another cause of concern is the potential for pollutants to
leach off the barge to the flats .
The intertidal habitat of the North River contains soft shell
clams and marine worms that are important components of local food
chains . Species of high commercial and recreational value such as
waterfowl , striped bass and winter flounder visit these habitats to
feed on sea worms, clam ciphons, and crustaceans . Many other less
well known organisms depend on the tide flats for feeding or
shelter opportunities . Collectively, valuable public resources
are found living at or visiting these intertidal habitats, and
efforts should be made to minimize unnecessary impacts .
In my experience, most communities along Massachusetts Bay do
not allow this practice except for emergency or short term use . I
recommend that alternative storage locations are found for the
North River barges . It should be possible to find commercial
wharfage or mooring space in the region to store the barges between
D obs . Thank you for the opportunity to comment . If you have any
questions please do not hesitate to call .
Sincerely,
/
Bradford C. Chase
Marine Fisheries Biologist
978-282-0308 x111
CC :
W. Leigh Bridges, Asst ., Dir . , MDMF
Steve Dibble, Asst . Planner, Salem
COMMONWEALTH OF MASSACHUSETTS h1ECE1-Wip
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS DEC 41996
DEPARTMENT OF ENVIRONMENTAL PROTECTION
METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE vuZ®aa1 P'la ano Depi.
WILLIAM F. WELD TRUDY CORE
Governor Secretary
ARGEO PAUL CELLUCCIDAVID B. STRUHS
Lt. GovernDEC O 1996or Commissioner
Craig C. Burnham WETLANDS\SALEM
Burnham Associates, Inc . DEP File # 064-0249
26 Dearborn Street Information Request
Salem, MA 01970
Dear Sir :
As you will recall, additional information and clarifications
were requested by the Department of Environmental Protection at the
site visit for the project on Wednesday, November 27, 1996 .
The order of conditions issued by the Salem Conservation
Commission appears to have been a denial for lack of information,
as described at 310 CMR 10 . 05 (6) (c) ; if this supposition is
accurate, then the Department is obligated to conform to
10 . 05 (7) (h) . However, the Commission was not present at the above-
referenced site visit and has not communicated with us regarding
this matter in any other way. Therefore, its clarifications,
information available to it and other commentaries have not been
secured.
For instance, the shellfish and benthos study applicable to
the project was, you noted, in the Commission' s possession. If
correct, that study should be furnished also to the Department . You
acknowledged that a formal projectplan has not been prepared, but
that the needed information was possessed by the Commission. We
would like to receive this information also, either as a plan or
otherwise . We emphasize, however, that our review appears to be
constrained to only that information which was submitted to the
Commission during its own review. As examples, the Department would
like to see elevations (including EHT, MHT, 100-year flood) ,
accurate cross-sections, placement of filter fabric, erosion
controls, delineation of all resource areas, erosion-sedimentation
controls and any other pertinent project feature (s) .
70 Commerce Way 9 Woburn,Massachusetts 01801 • FAX (617)932-7615 • Telephone (6M932-7600 • TDD#(617)932-7679
C� P:int ed on Recycled caper
page 2
0064-0249 Information
Should you have any questions, please contact Ralph Perkins of
the Wetlands Section at (617) 932-7786 .
Very truly yo
Ralph Perkins J s A. Sprague, Section Chief
Wetlands Section Wetlands Section
CC : Conservation Commission, City Hall, Salem, MA 01971
Jill Provencal, Waterways, 10 Commerce Way, Woburn, MA 01601
.%ON Cp��
y
2� z C 'm Commi&4m
J
Salem. Massachusetts. 01970
W
MAW����y
To: Ke ' aly /y
From: Stephen Dibble, Assistant Pla
Subject: Conservation Commission/ 70A North St
Date: October 23, 1996
�'-f
In response to your request for information from the Salem Conservation Commission files with
regard to Burnham Associates for violations on the North River, I have enclosed the following
copies: �
I
1. 70A North Street.
a. Abbreviated Notice of Intent received 3/29/96,
b. DEP File notification form rejecting file #until additional information is submitted
received 4/22/96,
C. Order of Conditions (DEP File#64-249) prohibiting the work voted on 5/9/96,
d. DEP File notification form 964-249 received 5/24/96,
e. Burnham Associates letter to Conservation Commission dated 5/29/96,
f. Burnham Associates letter to DEP requesting Superceeding Order served on 5/30/96,
g. DEP Notice of Acceptance of Appeal received 6/7/96,
h. Jill Provencal, Waterways Regulation Program, DEP to Craig Burnham, letter
received 6/13/96,
i. Salem Conservation Commission letter to Robert Ledoux, City Solicitor, dated 8/23/96,
j. Enforcement Order dated 10/10/96 and recorded at Registry on 10/15/96
Inst 326 BK 13799 PG 106, and
k. Burnham Associates letter to Stephen Dibble, Conservation Commission date 10/21/9 .
2. 14 Franklin Street.
a. Enforcement Order dated 12/16/92,
b. Burnham Associates letter to Conservation Commission dated 12/18/92,
C. Salem Conservation Commission letter to Burnham Associates, dated 12/28/92,
d. Burnham Associates letter to Conservation Commission dated 1/4/93,
e. Salem Conservation Commission letter to Craig Burnham, dated 1/25/93,
f. Burnham Associates letter to Conservation Commission dated 2/2/93, and
g. Determination of Applicability signed 3/10/94.
If I can be of any additional assistance, please do not hesitate to contact me.
Concom\70Anorth3
ti
r,n ..,..,�
MAY 12 1997
CONIMONWEATLI I OF MASSACHUSETTS
Salem Plann4ng Dept,
RE:
Abbreviated Notice of lnteut
by, Burnham Associates, Inc. Department o-fEnvironniental 'P.otection
at 70A North Street, Salem FILE NO. 064-0249
to repair/restore bulkhead
ADJUDICATORY APPEAL
Burnham Associates, Inc., owner of the above referenced property, hereby appeals to
the Office of Administrative Appe ds the Superceding Order of Conditions issued by the
Department on 29 APRIL 1997 (James A. Sprague).
Grounds are as follow:
1. Supercediug Order of Conditions is ambiguous.
2. Owner timely appealed Salem Conservation Commission's Order of Conditions
i
issued on 9 Nlay 1996 pursuant to lave and Department regulations. .
3. Said Order of Conditions prohibits repair/restoration of owner-appellants
wall/bulkhead.
4. Said Order violates owner's common-law right to maintain its property.
5. Said Order is contrary to a city ordinance requiring that owners maintain all structures.
in good condition.
6. Subject coastal interface (bulkhead) is a manmade structure and as such should not be
considered under the heading of a coastal bank.
7. Owner's wall/bulkhead repair/restoration work will not"alter, fill'or remove
(dredge)" any bank or land oFauy kind in or out of water.
8. Therefore, the work is not subject to the provisions and mandates of MGL c. 139,
/ s. 40 which controls only alteration of land.
9. Accordingly no order of conditions is required before owner performs the work.
10. To the contrary, the restored wall will prevent the alteration (washing away) of the
land behind it during storms and tidal flood conditions.
11. The Department's Reasons For Denial should not precribe sediment running down
from the soil area above as referenced since it may be contaminated with runoff(oil)
from the street.
12. The deteriorated bulkhead has existed for well over one hundred years for retention of
the land behind it. That laud is not "beach or flats" but rather a parking lot.
13. The "North River" in front of the bulkhead might contain living organisms in the
river bottom, but, if any they would, of course be unaffected by bulkhead restoration
since no alteration of land under water will occur.
14. It has been well established by the owner, and also the Department in the course of
preparing the E1R for the new bridge across the river (now under construction) that,
the North River, especially at its headwaters directly in front of the bulkhead, has
probably the most toxic river bottom in the state (down wash from Peabody chemical
and leather firms upstream).
15. Because of this condition, thankfully, no plant or animal life call exist. If it did, wild
foul and fish in the water at high tide could eat it and be poisoned.
16. The most crucial shortcoming of the Suuerceding Order, is its erroneous failure to
clearly and succinctly countermand the Conservation Commissions mandate
prohibiting restoration.
17. The essential relief sought by the owner-appellant is an order, or order of conditions,
/ superseding and countermanding said order of the Conservation Commission.
By,
Craig . Burnham, President
Burn am Associates, Inc.
26 Dearborn Street
Salem, MA 01970
(508) 745-1758 '
R VE, D
COMMONWEALTH OF MASSACHUSETTS JAN 2 8 1997
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTIONSalein Planning Dept.
METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE
WILLIAM F. WELD TRUDY CORE
Governor {� Secretary
ARGEO PAUL CELLUCCI JAN 2 7 ���/7 DAVID B. STRUHS
Lt. Govemor Commissioner
Craig C. Burnham WETLANDS\SALEM
Burnham Associates, Inc . DEP File # 064-0249
26 Dearborn Street Response to Previous
Salem, MA 01970 Request
Dear Sir:
As you will recall , the Department of Environmental
Protection, in its December 3 , 1996 letter, asked that you submit
certain information needed for proper and expeditious review of
your project . As of this date, no such information has been
received by us .
Please be advised that the Department still requires that
information. Therefore, we instruct you to submit (as evidenced by
a postmark of the US Postal Service) ALL of the required
information by January 31, 1997 .
Failure to respond adequately to this instructive may result
in appropriate compliance action by the Department .
Should you have any questions, please contact Ralph Perkins of
the Wetlands Section at (617) 932-7786 .
Very YItrulY Ours,
Ralph Perkins aures A. Sprague, Section Chief
Wetlands Section Wetlands Section
CC : Conservation Commission, City Hall, Salem, MA 01971
Jill Provencal, Waterways, 10 Commerce Way, Woburn, MA 01801
10 Commerce Way • Woburn,Massachusetts 01801 • FAX (617)932-7615 • Telephone (617)932.7600 • TDD#(617)932-7679
C: tamed„�aec�led r,rFl.
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UNITED STATES POSTAI SERVICE
ES5 `1
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Official Business J _ PENALTY FOR PRIVATE ...
1 USE TO AVOID PAYMENT
OF POSTAGE,$30.0
Print your name, address and ZIP Code here
• Salem Planning Dept.
1 Salem Green
Salem, MA. 01970
o SENDER:
y • Complete items 1 and/or 2 for additional services. I also wish t0 receive the
m • Complete items 3,and 4a a b. following services (for an extra u
y • Print your name and address on the reverse of this form so that we can fee): >
m return this card to you.
N • Attach this form to the front of the mailpiece,or on the back if space 1. ❑ Addressee's Address y
does not permit.
L • Write"Return Receipt Requested"Ion them'ailpiece below the article number. 2 ❑ Restricted Delivery G
• The Return Receipt will show to whom the article was delivered and the date u
c delivered. Consult postmaster for fee. 0
® 3. Article Addressed�to: 4a. Article Number
Z cog 25 EI
m NI
4b. Service Type
E ❑ Registered ❑ Insured
O
rn NCertified ❑ COD 9
W ❑ Express Mail ❑ Return Receipt for
cc Merchandise
D 7. Date of Deli ry 9q// rn
5. Signet ddcegeel 8. Addressees Address(Only if requested y
and fee is paid)
cc
6. at IA'ge'J ff ~
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% P .r_fFi , D:e ember 1991 *U.S.GPO:1993-352414 DOMESTIC RETURN RECEIPT
10" 151,% fi_: 4 iti5_t '>6
BK 137991
310 CMR 10. 99 DEP File NO. 64-249
Form 9 (To be provided by DEP)
City/Tan Salem
/ Applicant Burnham Associates, Inc
1\ Cosmronweal th
of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, 540
From Salam r ^r^ CgAmiq&-19F1 Issuing Authority
To Burnham Associates, Inca 26 Dearborn Street
Date of Issuance October 10, 1996
Property lot/parcel number, address 70A North Street
Extent and type of activity: Shoreline disturbance,possible dredging, and
storage of barges, crane, and equipment.
The Commission has determined that the activity described
above is in violation of the Wetlands Protection Act,- G.L. c. 131, 540, and
the Regulations promu:gated pursuant thereto, 310 CMR 10.00, because:
Said activity has been/is being conducted without a valid Order of
Conditions.
❑ Said activity has been/is being conducted in violation of an Order of
Conditions issued to �` dated ,
File number - Condition number(s')
❑ Other (specify)
r
The Commission hereby orders the following:
® The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
❑ Wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
Effective 11/10/89 9-1
B 7799 PG
3
Issued by.Salem Conservation`:Eommi:ss.ion 'Commission
❑ Completed arlication forms and plans as required by the Act and
Regulations shall be filed with the
on or before (date) ,
and no further work shall be performed until a public hearing has been held
and an Order of Conditions has been issued to regulate said work.
Application forms are available at:
The property owner shall take every reasonable step to prevent further
violations of the act.
® Other (specify)
The property owner of its agent is requested to appear
before the Commission to discuss ongoing activity on and adjacent to
the parcel. Failure to appear before the Commission may result in
a fine of not more than $200.00 each day or-portion thereof during
which a violation continues shall constitute a separate offense:
if more than one, each condition violated shall constitute a
separate offense.
Failure to comply with this order may constitute grounds for legal action, ¢
Massachusetts General Laws chapter 131, Section 40 provides :
Whoever violates any provision of this section shall be punished
by a fine of not more than twenty-five thousand dollars or by
imprisonment for not more than two years or both, Each day or
portion thereof of continuing violation shall constitute a separate
offense.
Questions regarding this Enforcement Order should be directed to�
Stephen Dibble Conservation Go=ai ssi "agony 7/ 5_95,95, v111
Issued by Sale Conserva ion Commission
signature(
i
(Signature of delivery person
or certified mail number)
i
9-2b
ZMassachusetts Bay Transportation Authority
William F Weld Argeo Paul Cellucci James J Kerasiotes Patrick J Moynihan
Governor Lieutenant Governor Secretary and MB TA Chairman General Manager
February 12, 1997
n
Mr. Stephen Dibble �;�,'�ru�' 7-,11,,11�
Assistant Planner
Salem Conservation Commission FEB 14 1997
Salem, MA 01970
^;r
>., .. ., . ,.,, .,;Ir1g Dept.
RE: Enforcement Order
Issued January 23, 1997
for M35 Lot 25, 242 Bridge Street
Noah River beyond Smith Avenue and Sherry Street
Dear Mr. Dibble:
I received the above referenced enforcement order in an envelope post marked
February 7, 1997 on February 11, 1997. On Friday, February 7, 1997 1 was on an
inspection tour of the property and noticed the "floating pipes" attached to the MBTA's
pole line. I can assure you that this pipe is not owned by the MBTA nor is it in any
I' _associated with the MBTA's operations. Since last Friday, I have been attempting
to find the owner of the pipes and have them removed. The MBTA wants these pipes
removed from the pole line before any damage to the�polesocburs; but`as'yet we
have been unable to find the owner or person responsible for tying the pipes to our
poles.
If we are successful with finding the owner of the pipes, we will provide the
information to you and we ask that you do the same. I will telephone your office during
the day on February 12, 1997 to expedite the exchange of this information. I further
request that all appropriate action be taken by the Commission to rescind or otherwise
correct the Enforcement Order.
If I can be of any further help in this or any other matter, please do not hesitate
to contact me at 617-222-6176.
Sincerely,
Jo n D. Ray
Section Chief;
Engineering and Maintenance
JDR td: .. ; tc
-•`t - `Massachusetts Bay Transportation Authority, Ten Park Plaza,-Boston, HA 02116-3074 ..
I_
5C)P H W V-1
Tito of t*ttlfm, masoac4usEtts 10A "OP-5t
Publir jlrupertg 19epartment
Nuilbin9 Department
(Otte Oalem (6rern
508-745-9595 Ext. 300 RECEIVED
Leo E. Tremblay
Director of Public Property FEB 4 1997
Inspector of Building
Zoning Enforcement Officer Salem Planning Dept.
February 4 , 1997
Jody Ray
Chief Engineer Railroad Operations
Massachusetts Bay Transportation Authority
Transportation Building
Ten Park Plaza
Boston, Mass . 02116-3975
Dear Mr . Ray:
Part of my job as being the City of Salem Zoning
Officer is to enforce specific uses in a zoning district .
It has come to my attention that Lot #25 on Map 35 of the
City of Salem Assessors map , which is owned by the
Massachusetts Bay Transportation Authority is illegally
being used to store industrial items on the shore line of
the property. This illegal use must be ceased
immediately.
Please contact his office to inform us as of your
course of action in this matter.
Thank you in advance for your anticipated cooperation
in this matter .
Sincerely,
Leo E . Tremblay
Zoning EnforcementOfficer
LET: scm
cc : Steven Dibble
Kevin Daly
Councillor Flynn, Ward 2
,.z
+ R
310 CMR 10 . 99 DEP File No.
Form 9 (To be provided by DEP)
City/Torn Salem
Applicant
Commonwealth
of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, 540
From Salem Conservation Commission Issuing Authority
To Massachusetts Bay Transportation Authority
Date of Issuance January 23, 1997
Property lot/parcel number, address M 35 Lot 25, 242 Bridge Street
North River beyond Smith Ave. and Skerry Street.
Extent and type of activity:
Alteration to shoreline, storage of equipment, and partial blockage
of storm drain system.
The Commission has determined that the activity described
above is in violation of the Wetlands Protection. Act,, G.L. c. 131, 440, and
the, Regulationspromu.Lgated pursuant thereto, 310 CMR 10.00, because:
® Said activity has been/is being conducted without a valid Order of
Conditions.
❑ Said activity has been/is being conducted in violation of an Order of
Conditions issued to dated ,
File number Condition number(s)
❑ other (specify)
The Commission hereby orders the following:
® The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
® wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
Effective 11/10/89 9-1
f
Issued by Salem Conservation Commission Commission v
❑ Completed aerlication forms and plans as required by the Act and
Regulations shall be filed with the
on or before (date) ,
and no further work shall be performed until a public hearing has been held
and an Order of Conditions has been issued to regulate said work.
Application forms are available at..
The property owner shall take every reasonable step to prevent further
violations of the act.
Other (specify)
1. Immediately remove all equipment including seven large diameter tubes each
being approximately 400 feet long being anchored and/or tied to several
existing utility poles. -
2. Any additional alterations to wetlands shall require Conservation Commission
approval.
Failure to comply with this Order may constitute grounds for legal action,
Massachusetts General Laws Chapter 131, Section 40 provides:
Whoever violates any provision of this section shall be punished
by a fine of not more than twenty-five thousand dollars or by
imprisonment for not more than two years or both, Each day or
portion thereof of continuing violation shall constitute a separate
offense.
Questions regarding this Enforcement order should be directed to
Stephen Dibble, Assistant Planner (508) 745-9595 ext. 311
Issued by Salem Conservation Commission
Signatures
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address of the article,date,detach and retain the receipt,and mail the article.
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(no extra charge)
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3. If you want a return receipt,write the certified mall number and your name and address on a return
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receipt is requested,check the applicable blacks in Item 1 of Form 3811.
6. Save this receipt and present hit you make inquiry. - *U.S.G.P.O.1989-234-55e
RECEIVED
Salem Conservation Commission JON 0 5 1997
C/O Mr. Stephen Dibble, Assistant Planner
Planning Department Saj r }
City of Salem
One Salem Green
Salem, MA 01970
Re: Conservation Commission Letter dated May 8, 1997 (Received May 27, 1997)
Dear Steve,
This letter is to let you know that the equipment you referenced in your letter was
removed on May 29, 1997 just a few days after we received your letter.
We are sorry to have caused you and your Commission any trouble. We believe
that there has been no damage to the wet lands in this area.
Please let us know if you have any additional questions. I can be reached at work
at 745-9233. J
cere y, J
Robert T. Lutts, Trustee
The Cabot Farm Trust
91 Orne Street
Salem, MA 01970
COPi rve-or-, Gor�pvr�,z �,LC
To: Kevin Daly
From: Stephen Dibble, Assistant Planner
Subject: Conservation Commission/ 70A North St
Date: October 23, 1997
In response to your request for information from the Salem Conservation Commission files with
regard to Burnham Associates for violations on the North River, I have enclosed the following
copies:
1. 70A North Street.
a. Abbreviated Notice of Intent received 3/29/96,
b. DEP File notification form rejecting file # until additional information is submitted
received 4/22/96,
C. Order of Conditions (DEP File #64-249)prohibiting the work voted on 5/9/96,
d. DEP File notification form#64-249 received 5/24/96,
e. Burnham Associates letter to Conservation Commission dated 5/29/96,
f Burnham Associates letter to DEP requesting Superceeding Order served on 5/30/96,
g. DEP Notice of Acceptance of Appeal received 6/7/96,
h. Jill Provencal, Waterways Regulation Program, DEP to Craig Burnham, letter
received 6/13/96,
i. Salem Conservation Commission letter to Robert Ledoux, City Solicitor, dated 8/23/96,
j. Enforcement Order dated 10/10/96 and recorded at Registry on 10/15/96
Inst 326 BK 13799 PG 106, and
k. Burnham Associates letter to Stephen Dibble, Conservation Commission dated 10/21/96:
2. 14 Franklin Street:
a. Enforcement Order dated 12/16/92,
b. Burnham Associates letter to Conservation Commission dated 12/18/92,
C. Salem Conservation Commission letter to Burnham Associates, dated 12/28/92,
d. Burnham Associates letter to Conservation Commission dated 1/4/93,
e. Salem Conservation Commission letter to Craig Burnham, dated 1/25/93,
f. Burnham Associates letter to Conservation Commission dated 2/2/93, and
g. Determination of Applicability signed 3/10/94.
If I can be of any additional assistance, please do not hesitate to contact me.
ConcomV70AnorW
MEMO
To: Robert Ledoux, City Solicitor
From: Stephen Dibble, Assistant Planner
Subject: Conservation Commission/ 70A North St
Date: October 15, 1997
The Conservation Commission requested that I forward the attached copy of an enforcement
order to you, which is directed to Burnham Associates for violations on the North River. I will
also have it recorded at the Registry as per the Conservation Commission's request.
They ask that you please advise them if this order will prejudice the City in the ongoing
litigation. Thank you for your assistance in this matter.
Concom\70Anorth2
c�0�i� 1��o r•. Cv h•�.�f-�- ��� � ��g 8 li
N T E R
MEMO
O F F I C E
To: Kevin Daly
From: Stephen Dibble
Subject: Burnham, 72 North St
Date: August 27, 1997
CC: Craig Wheeler
Conservation Commission Members
Burnham Associates has applied for a Chapter 91 licence, which he should not be able to receive
until sometime after he files with the Salem Conservation Commission. This looks like another
smokescreen while he continues to conduct illegal and potentially environmentally harmful
activities on the#70A or 72(?)North Street parcel. I have enclosed a copy of the August 20,
1997 DEP letter for your review.
Should the Commission petition to intervene or comment, or ignore the September 10
notification date? Please advise the Commission of any steps they may need to take with regard
to the Chapter 91 application.
As we discussed, the Commission is frustrated by Burnham's continued disregard of existing
laws. Increasing illegal activities have been taking place on the North Street parcel for some
time. Also, the pending court case on his Franklin St should not be reason to allow for additional
violations on that parcel.
The Commission has asked for a full update from you on both parcels at its next meeting of
Thursday, September 11th 7:00pm. The Commission would like to hold an in-depth discussion
with you in an attempt to stop these illegal activities, which may include possibly implementing
the Rivers Protection Act on these two parcels. Please contact me to discuss these issues and
confine your attendance the September 11th meeting.
concom/enforoe/70anoftM
/A.Ve '?
I N T E R
MEMO
O F F I C E
To: Atty. Kevin Daly
From: Stephen Dibble, Assistant Planner/Conservation Administrator
Subject: 70A North Street, DEP Denial
Date: 5/2/97
CC: Robert Ledoux, City Solicitor
Craig Wheeler, City Planner
Fred Harney, Conservation Commission, Chairperson
I have enclosed, as per your earlier request,the Department of Environmental Protection's
decision for file #64-249 with regard to Mr. Craig Burnham's work at 70A North Street. The
eleven page document received on this date, denied Mr. Burnham's request for a Superseding
Order of Conditions.
A variety of nonpermitted work, work that may and most likely is damaging to the resource area,
coastal bank and the harbor, continues to be undertaken by Mr. Burnham and/or others on both
the above referenced parcel at 70A North Street and the Franklin Street parcel.
The Commission requests an update on both of Mr. Burnham's parcels where non permitted
work is taking place: 70A North Street and Franklin Street. The Commission would like to
know how it may assist you in ongoing litigation or take separate additional action on these two
parcels to prevent additional violations of the Wetlands Protection Act, the Rivers Protection
Act, our local Ordinance, and other regulations.
If possible, please update and advise the Commission at its next meeting on May 8.
sNwnwMenfo¢e/90anoR
L
1
DALY & DALY
ATTORNEYS AT LAW
32 CHURCH STREET
SALEM, MA.SSACHUSEWS 01910'
KEVIN T. DALY TELEPHONE (508) 745-0500 OF COUNSEL
MARGARET DALY CRATEAU FAX(508) 745-8608 .RICHARD E. DALY
September 9, 1997
City of Salem Conservation Commission
One Salem Green
Salem, MA 01970
RE: 14 Franklin Street/70A North Street"
Dear Commission Members :
As this letter pertains to ongoing litigation, kindly
discuss this in executive session.
I apologize for being unable to attend your meeting,
but September 11th is the 5th birthday of my twins and my
presence is required at home. Should you have any questions
regarding the following, feel free to telephone me at my
home, 745-6663 .
Regarding 14 Franklin Street, I recently telephoned the
clerk for Judge Bohn who is still yet to render a decision
regarding the activities at that parcel . He has brought it
to the Judge' s attention and I was informed that the Judge
would render his decision soon. Until the decision is
rendered, there is no action we can take regarding 14
Franklin Street .
However, the situation at 70A North Street is
different. Since March 14, 1997 the Salem Police Department
has been issuing tickets to Mr. Burnham for violation of the
Wetlands Protection Act. He was cited for the location of
dredging pipes in the river and also continues to be cited
for the installation of the spud piling at the location. To
date, the fines exceed $25, 000. 00 . Needless to say, Mr.
Burnham has appealed these fines and we are due back in
Salem District Court on October 6th regarding these .
I am enclosing for your reference a copy of the
Petition to Intervene which I have filed on your behalf
regarding the recent waterways license application of Mr.
Burnham. I have also spoken with Jill Provencal at the DEP
regarding allegations of filling and dumping at 70A North
Street. She promised to do a site visit and take action
accordingly. She has yet to report back to me. In matters
unrelated to the Conservation Commission, yet which may be
of interest, there are two other cases pending in Salem
District Court regarding zoning violations at 14 Franklin
Street. The building inspector is seeking fines of up to
$300 . 00 per day against Mr. Burnham retroactive to November
7, 1996 . There are also five cases pending in Superior
Court which have recently been consolidated for trial .
These also involve zoning issues regarding the building and
trailers located at 14 Franklin Street.
As you can see, we are working within the law to
enforce the Wetlands Protection Act and other pertinent
ordinances and statutes . However, when an individual
refuses to cooperate the road can be long and difficult.
Mr. Burnham has three separate law firms working for him and
he has stated that his financial assets are virtually
unlimited. Should you have any questions, please do not
hesitate to telephone me between 7-9 on Thursday evening.
Thank you for your attention to this matter.
Very truly yours,
M jrKEVIN T. DALY
KTD/km
Enclosure
DALY & DALY
ATTORNEYS AT LAW
32 CHURCH STREET
SALEM, MASSACHUSETTS 01970
KEVIN T. DALY TELEPHONE(508) 745-0500 OF COUNSEL
MARGARET DALY CRATEAU FAX(508) 745-6606 RICHARD E. DALY
September 9, 1997
Ccmmonweaith of Massachusetts
Division of Wetlands and Waterways
10 Commerce Way
Woburn, MA 01801
ATTENTION: Mr. James Sprague, Section Chief
RE : Waterways License Application No. W96-5802
Dear Mr. Sprague:
Please be advised that this office represents the City of
Salem Conservation Commission. As such I am in receipt of your
notice of license application dated August 20, 1997 .
Accordingly, kindly considerthis a Petition to Intervene
on behalf of the City of Salem Conservation Commission. The
Conservation Commission opposes the granting of a waterways
license for the property located at 70A North Street in Salem.
The applicant for this license has previously applied for
an Order of Conditions from the Conservation Commission and was
denied. His request for a Superceding Order of Conditions from
the Department of Environmental Protection was also denied. On
October 10, 1996 the Conservation Commission issued a cease and
desist order to Burnham Associates, Inc. for conducting
activity without a valid Order of Conditions . The owner of
Burnham Associates, Inc. has ignored this cease and desist
order . Subsequently, the Conservation Commission requested the
Salem Police Department to enforce the Wetlands Protection Act
pursuant to General Laws, Chapter 40, 21D. To date
approximately $25, 000 . 00 in fines has been issued and the
matter is pending in Salem District Court . Additionally, the
Conservation Commission has had much difficulty in dealing with
'-his appl_cant regarding activity at another parcel on the
North River as well as his continued use of spud pilings
without the proper permitting.
Waterways License No. W96-5802 Page 2
Accordingly, for the foregoing reasons the Conservation
Commission petitions to intervene and hereby opposes the
granting of a waterways license to this applicant.
Thank you for your attention to this matter.
Very truly yours,
KEVIN T. DALY
KTD/km
cc: Conservation Commission
{
3
i
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i
` F L
DALY & DALY
ATTORNEYS AT LAW - Dyaw. 04. f, -
32 CHURCH STREET
sai , iKnssncxbsEi rs OMSalem Pia C ; ��, Dept.
KEVIN T. DALY TELEPHONE (5081 745-0500. OF COUNSEL .
MARGARET DALY CRATEAU FAX (508) 745-6606 - RICHARD E. DALY
December 3, 1997
City of Salem Conservation Commission
1 Salem Green
Salem, MA 01970
RE: Mr. Edward Ferris
Dear Members:
Please find enclosed a copy of a letter which I have
received from the attorney for Mr. Ferris . This letter was
sent to me in response to my letter to Mr. Ferris regarding
the Enforcement Order.
As you can see from this response, Attorney Gorman has
represented that Mr. Burnham' s dredging pipes were to be
removed by 1 : 00 p.m. on December 3, 1997 . Upon receipt of
this letter, I spoke with Attorney Gorman and stated that
the Conservation Commission certainly appreciates the
cooperation of Mr. Ferris in this matter. However,` I also
stressed that the Conservation Commission would not hesitate
to take further action in the event the dredging pipes or
other violations appear.
Thank you for your attention to this matter.
Very truly yours, -
_11
KEVIN T. DALY .
KTD/km
Enclosure
vl`
SHERIN AND LODGEN LLP
COUNSELLORS AT LAW
100 SUMMER STREET
BOSTON. MASSACHUSETTS 02110
TELEPHONE 16171426-5720
FAX 16171542-5186
WRITER'S DDLECf TELEPHONE NUMBER
(6M 802-0118
December 3 , 1997
BY FAX AND REGULAR bf�,IL
Kevin T. Daly, Esquire
Daly & Daly
32 Church Street
Salem, MA 01970
Re: Ferris Auto Service, Inc.
Dear Mr. Daly:
Ed Ferris has consulted us in connection with the notice he
recently received from the Salem Conservation Collision; the
subject of your December 1, 1997 letter to Mr. Ferris.
As Mr. Ferris has told representatives of the City, the
pipes at issue are not his property, he does not control them and
does not receive any benefit from their presence. Putting that
aside, and putting aside whether he or Ferris Auto Service, Inc.
has responsibility for the pipes' placement or removal , Mr.
Ferris has taken action to have them removed. He recently spoke
with Mr. Burnham, who has agreed to remove the pipes by 1: 00 p.m.
today.
I trust this response resolves the issue, but if '-you have
any questions or concerns, please do not hesitate tr: call .
Sincerely yours,
Thomas Paul Gorman
TPG:mjm
cc: Mr. Edward Ferris
IN CALIFORNIA: 11268 WASHINGTON BLVD.. SUITE 201.CULVER CITY.CALIFORNIA 90230 31C� ''_72 4689
I N T E R
MEMO
O F F I C E
To: Kevin Daly
From: Stephen Dibble
Subject: Burnham, 72 North St
Date: August 27, 1997
CC: Craig Wheeler
Conservation Commission Members
Burnham Associates has applied for a Chapter 91 licence, which he should not be able to receive
until sometime after he files with the Salem Conservation Commission. This looks like another
smokescreen while he continues to conduct illegal and potentially environmentally harmful
activities on the#70A or 72(?)North Street parcel. I have enclosed a copy of the August 20,
1997 DEP letter for your review.
Should the Commission petition to intervene or comment, or ignore the September 10
notification date? Please advise the Commission of any steps they may need to take with regard
to the Chapter 91 application.
As we discussed, the Commission is frustrated by Burnham's continued disregard of existing
laws. Increasing illegal activities have been taking place on the North Street parcel for some
time. Also, the pending court case on his Franklin St should not be reason to allow for additional
violations on that parcel.
The Commission has asked for a full update from you on both parcels at its next meeting of
Thursday, September 11th 7:00pm. The Commission would like to hold an in-depth discussion
with you in an attempt to stop these illegal activities, which may include possibly implementing
the Rivers Protection Act on these two parcels. Please contact me to discuss these issues and
confirm your attendance the September 11th meeting.
concom/e.fo,ce/70anoah4
i
I N T E R
MEMO
0 F , F I C E
To: Kevin Daly
From: Stephen Dibme! ,
CC: Conservation 5ission
Subject: Burnham Associates
Date: November 6, 1997
Today I received the attached four page correspondence from the DEP with regard to the
Department's Issue Statement and Witness List for Burnham Associates. Please review and
update the Conservation Commission prior to its next meeting of November 13 with regard to
both the 70A North Street and Franklin St properties. Thank you in advance. Steve.
Y (�
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET,BOSTON MA 02108 (617)292-5500
ARGEO PAUL CELLUCCI
Governor - TRUDY CORE
Secretary
DAVID B. STRUHS
Commissioner
November 4, 1997
Dineen Simpson, Docket Clerk
Department of Environmental Protection
Office of Administrative Appeals
One Winter Street, 10th Floor
Boston, MA 02108
Re : Burnam Associates, #97-055, Salem (WETLANDS)
Dear Ms . Simpson:
Enclosed please find for filing Department' s Issue Statement.
and Witness List in the above referenced matter.
Thank you for your assistance .
Very t y yours„
CERTIFICATE W SCR;"CE
1 certify that a true copy of the above `
document was Served upon the authorized am el J. Bennett
representative of record named on the Senior Counsel
SJB/7rS@rvlce list for c other party b mail EI*
-hand) on I 7
cov.let �
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL_AFFAIRS r
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET,BOSTON MA 02108 (617)292-5500
ARGEO PAUL CELLUCCI
Governor TRUDY CORE
Secretary
DAVID B. STRUHS
Commissioner
In the matter of Docket No. 97-055
File No. 064-0249
BURNHAM ASSOCIATES, INC. Salem (WETLANDS)
Department' s Issue Statement and Witness List
I . ISSUES
1 . Whether the SOC is unclear on matters material to the decision;
2 . Whether the bulkhead should be considered a coastal bank;
3 . Whether the proposed work will alter, fill or remove any bank or
land of any kind in or out of water;
4 . Whether M.G.L. c . 131 sec .40 controls only the alteration of
land;
5 . Whether the Department has improperly prescribed sediment
running down from the soil area that is contaminated with oil;
G . Whether the land behind the bulkhead is consists of flats;
7 . Whether living organisms in the river will be affected by the
proposed work;
8 . Whether issues 1 through 7 state a claim upon which relief can
be granted.
II . WITNESS
1 . Ralph Pefkins,"± wetlands Environmental analyst, will testify
regarding the above issues . 1 hour.
Resp ctfull Su ted,
S�muel J. Benne
Senior Counsel
S
r-
s
SERVICE LIST
In Re : Burnham Associates, Inc .
Docket No . 97-055 File No. 064-0249
Representative Party
Craig C. Burnham APPLICANT-PETITIONER
President Burnham Associates, Inc .
Burnham Associates, Inc .
26 Dearborn Street
Salem, MA 01970
Salem Conservation Commission CONSERVATION COMMISSION
City Hall
1 Salem Green
Salem, MA 01971
Samuel J. Bennett, Esq. DEPARTMENT
DEP - Office of General Counsel Dept . of Environmental
One Winter Street - 3rd Floor Protection
Boston, MA 02108
CC :
Ralph Perkins
DEP - Northeast Regional Office DEP STAFF
10 Commerce Way
Woburn, MA 01801
date : September 17, 1997
DALY & DALY
ATTORNEYS AT LAW
32 CHURCH STREET
SALEM, MASSACHUSETTS 01970
KEVIN T. DALY TELEPHONE 15081 745-0500 OF COUNSEL
MARGARET DALY CRATEAU FAX 15081 745-6606 RICHARD E. DALY
October 24, 1997
i
i
Commonwealth of Massachusetts
Division of Wetlands and Waterways
10 Commerce Way
Woburn, MA 01801
ATTENTION: Ms . Jill Provencal
RE: 70A North Street, Salem
Dear Ms. Provencal :
As you know, I represent the City of Salem Conservation
Commission relative to the above-named property. I have been asked
by the Commission to send this letter for your review in conjunction
with the Enforcement Review Meeting to be held at your office next
week.
70A North Street in Salem is owned by Mr. Craig Burnham who
operates Burnham Associates , Inc. , which is a marine contracting
business. 70A North Street is a small parcel on Salem' s North River
in close proximity to the North Street overpass. There is no public
way access to this parcel , although Mr. Burnham drives heavy
equipment over property owned by the Commonwealth and the City in
order to access this parcel. The North River culvert runs under the
state-owned land over which Mr. Burnham accesses his property.
Mr. Burnham purchased 70A North Street within the last two years
and began using it for the storage of his equipment and vessels.
One of the vessels is anchored by the_ use of a spud piling which
Mr. Burnham has testified sinks approximately five feet into the
riverbed.
I.
On October 10, 1996 , the Conservation Commission issued a cease-
and-desist order to Burnham Associates , Inc. for conducting activity
at 70A North Street without a valid Order of Conditions. Mr. Burnham
has ignored the cease-and-desist order. Also, as you know Mr. Burnham
did apply to the Conservation Commission for an Order of Conditions
to perform certain work and renovations at the cite. The Order of
Conditions was denied and his subsequent appeal to the Department of
Environmental Protection for a Superseding Order was also denied.
In March of 1997, the Conservation Commission requested the
Salem Police Department to enforce the Wetlands Protection Act
pursuant to General Laws, Chapter 40, section 21D. The police
department issues daily citations to Mr. Burnham of $200. 00 each.
<A
r
Division of Wetlands and Waterways Page 2 October 24, 1997
I believe the fines presently approach $40 , 000 . 00 and Mr. Burnham' s
appeal of these fines is pending in Salem District Court. Mr. Burnham
argues that his spud pilings are not subject to regulation and are
only used to anchor his vessels temporarily. However, as you know
from your many years of involvement with Mr . Burnham, his spud pilings
have been in place for some years and are only infrequently moved.
For your reference, I am enclosing copies of two panoramic
photographs of 70A North Street taken on September 14, 1997 . Also
enclosed is a photograph of Mr. Burnham' s barge at 70A North Street
taken in early 1997 . Tied to this barge are numerous dredging pipes ,
each of which is approximately 300 feet long. Mr. Burnham had these
pipes located off 70A North Street for some months this past winter.
Accordingly, on behalf of the Salem Conservation Commission,
please consider these factors at your Enforcement Review Meeting.
Thank you for your attention to this matter.
Very truly yours,
KEVIN T. DALLY
KTD/rmj
CC: Salem Conservation Commission
V, �
Salem Giza"
DALY & DALY
ATTORNEYS AT LAW
32 CHURCH STREET
SALEM, MASSACHUSETTS 01970
Salem
KEVIN T. DALY TELEPHONE (5081745-0500 OF COU SEL UNSEL
MARGARET DALY CRATEAU FAX 15081 745-6606 RICHARD E. DALY
December 1, 1997
Mr . Edward Ferris
j 21 Naples Road
Salem, MA 01970
RE : 16 Franklin Street
Dear Mr. Ferris :
As you may recall, this office represents the City of
Salem Conservation Commission relative to certain activities
on the North River. I also represent the City of Salem in
related matters . As such, I am in receipt of the ."
Enforcement Order issued by the Conservation Commission on _
November 20, 1997 .
The issue involved in this Enforcement Order is the
storage of Mr. Burnham' s dredging pipes on the shoreline of
your property. By law, you are responsible for the activity
on your property from the shoreline down to the main low
water mark. The location of those pipes may constitute a
violation of the Wetlands Protection Act and you are
obligated to remove them. You may later apply to the
Conservation Commission for an Order of Conditions or
Certificate of Non-Applicability for this activity. Mr.
Burnham himself has been served with Enforcement Orders on
more than one occasion and he is fully aware of the legal
obligations of the property owner.
Failure to obey the Enforcement Order may result in
fines up to $25, 000. 00 per day. Additionally, the
Conservation Commission can authorize the Salem Police
Department to issue daily citations up to $200 . 00 per day.
The location of each pipe will constitute a separate
violation.
As Mr. Burnham should have informed you, the pipes also
constitute a zoning violation. Pursuant to a decision of
the Massachusetts Land Court, it was ruled that the location
of Mr. Burnham' s marine equipment outside of the boundaries
I
16 Franklin Street Page Two
of his shoreline were impermissible. Zoning violations are
also subject to fines up to $100 . 00 per day. As owner of 16
Franklin Street it is your responsibility to correct these
violations . Accordingly, please correct these violations .
The Conservation Commission will discuss this matter at its
next regular meeting and Mr. Tremblay will also be
investigating possible action for the zoning violations .
Thank you for your attention to this matter.
Very truly yours,
KEVIN T. DALY
KTD/km
cc: Conservation Commission
Robert Ledoux, Esquire
Leo Tremblay
f
310 CMR 10. 99 DEP File No.
Form 9 (To be
provided by DEP)
City/Tarn Salem
Applicant
Coo=onweal th
Of Massachusetts
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, §40
From Salem Conservation Commission Issuing Authority
To Edward Ferris, 21 Naples Road, Salem MA 01970
Date of Issuance November 20, 1997
Property lot/parcel number, address Map 26 Lntc 4nn.c4n2 16& R2n Franklin Street
Extent and type of activity:
Alteration of Shoreline and storage of equipment.
The Commission has determined that the activity described
above is in violation of the Wetlands Protection Act,' G.L. c. 131, §40, and
the Regulations promu.gated pursuant thereto, 310 CMR 10.00, because:
In Said activity has been/is being conducted without a valid Order of
Conditions.
❑, Said activity has been/is being conducted in violation of an Order of
Conditions issued to dated ,
File number Condition number(s)
0 other (specify)
The Commission hereby orders the following:
The property owner, his agents, permittees and all others shall
immediately cease and desist from further activity affecting the wetland
portion of this property.
Wetland alterations resulting from said activity shall be corrected and
the site returned to its original condition.
Effective 11/10/89 9-1
Issued by Salem Conservation Commission
❑ Completed aprlication forms and plans as required by the Act and
Regulations shall be filed with the
on or before
and no further work shall be performed until a public hearing has been held
and an Order of Conditions has been issued to regulate said work.
Application forms are available at.-
The
t.The property owner shall take every reasonable step to prevent further
violations of the act.
® Other (specify)
1. immediately remove all equipment including several large diameter tubes,
many being approximately 400-800 feet long. .
2. Any additional alterations to the wetlands shall require Conservation
Commission approval.
Failure to comply with this Order may constitute grounds for legal action,
Massachusetts General Laws Chapter 131, Section 40 provides:
Whoever violates any provision of this section shall be punished
by a fine of not more than twenty-five thousand dollars or by
imprisonment for not more than two years or both, Each day or
portion thereof of continuing violation shall constitute a separate
offense.
Questions regarding this Enforcement Order should be directed to
Salem Planning Department 745-9595 ext. 311
issued by Salem Conservation Commission
Signature (s)
(Signature of delivery person
, or certified mail number)
9-2b
t
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
METROPOLITAN BOSTON-NORTHEAST REGIONAL OFFICE
WILLIAM F. WELD TRUDY COXE
GovemorVED Secretary
ARGEO PAUL CELLUCCI , � AUG 2 01997 DAVID B. STRUHS
LL Governor �J 1997 Commissioner
Burnham Associates, Inc.
c/o Mr. William H. Kelley
Tucker' s Wharf, P.O. Box. 212
Marblehead, MA01945
Re: Waterways License Application No. W96-5802
Dear Sir(s) :
The Waterways Regulation Program (WRP) has received your application requesting authorization
to perform certain activities in state waterways pursuant to G.L. Chapter 91, Waterways
Licensing. The WRP has assigned your filing with the referenced application number. IT-IS
IMPERATIVE THAT YOU REFER TO THIS APPLICATION NUMBER WHENEVER YOU SUBMIT OR REQUEST
INFORMATION FOR THIS FILE.
Immediately following this letter is the WRP's public notice for this application. You are
required to publish this notice, at your expense, in the local newspaper(s) having circulation
in the area affected by the proposed activity. This notice must be published no later than
the designated "Notification Date" for at least one day in the local newspaper(s) . There is
a prescribed public comment period imposed from the date of publication. You are required to
submit proof of publication to the WRP by sending a copy of the newspaper notice showing the
date of publication or a letter from the newspaper indicating the date the notice was
published.
The WRP will concurrently notify the appropriate municipal officials of the proposed activity
for their review and comment. The WRP cannot commence licensing review and authorization
until at least forty-five (45) days after the municipality has been notified of this
application. Also, should this project exceed the MEPA waterways thresholds, thereby
requiring completion of the MEPA review process, the WRP will publish the public notice in the
Environmental Monitor.
Furthermore, pursuant to 310 CMR 9.00, Licensees are required to provide compensation for
private use of structures (or fill) on Commonwealth tidelands which interfere with the rights
of the public to use such lands. Said compensation includes, but is,-not necessarily limited
to, the allowance of the public to pass on foot, for any lawful purpose, within the area of
the subject property lying seaward of the high water mark. The WRP may contact the Applicant,
if it has not already done so within the text of this letter, requesting information and/or
possible revisions necessary to comply with this requirement.
Lastly, the WRP cannot begin review of this application for license issuance until the
following information has been submitted to the file:
x Proof of publication of the public notice .
x Expiration of the statutory 45 day comment period
- x Order of Conditions
x Planning Board Notification Form
x Zoning Board Certification Form
If for any reason you are unable to publish this notice by or before the Notification Date
please change the date to the date of publication.
10 Commerce Way 0 Wobwn,Massachusetts 01801 • FAX (617) 932-7615 • Telephone (617) 932-7600 • TDD N(617)932-7679
I
:2
Should you have any question with regard to the foregoing, please contact
Jill Provencal at (617) 932-7778.
Sincerely,
esSprague �J E. Provencal
// Division
ction Chief vironmental Analyst
of Wetlands and Waterways aterways Regulation Program
CC: Salem Mayor and City Council _
Salem Conservation Commission
William H. Whooley, Harbormaster
Division of Fish & Wildlife
Massachusetts Historical Commission
Of fice of Coastal Zone Management
Division of Marine Fisheries
Mass Bay Transit Authority
WRP Application File (2)
ABUTTERS TARE NOTICE: If the structure, to be authorizediswithin 25 feet of the common
property line, it may impact access to your property from the water. Please contact the
Department within the public comment period if this is a problem.
Public Notice Attachment
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Waterways Regulation Program
Notice of License Application pursuant to G.L. Chapter 91
Waterways License Application Number W96-5802
Burnham Associates, Inc .
Notification Date : SEP 1. 0 1997
Public notice is hereby given of the application. by Burnham Associates,
Inc . to reconstruct and maintain a seawall, fill and ripap at 72 North
Street, in the municipality of Salem in and over the graters of the North
River. The proposed use of the structure is for shoreline stabilization and
is a water-dependent project .
The Department will consider all written comments submitted 30 days
subsequent to the "Notification Date" . A public hearing may be held upon
written request by the municipal official . Furthermore, a municipality,
ten citizen group or any aggrieved person that has submitted comments may
also petition to intervene to become a party before the close of the
comment period. Failure to submit such petition will result in the waiver
of any right to an adjudicatory hearing. For information call (617) 932-
7600 . Plans and documents for this application are .on file with the
Department for public viewing at the address below. Written comments
should be addressed to J. Sprague, Section Chief, DWW, 10 Commerce Way,
Woburn, MA 01801 .
i
S
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60
(p—lq-gi4_SHEET Z OF 2-
PLAN ACCOMPANYING PETITION OF
BURNHAM ASSOCIATES , INC.
FOR SEAWALL , RIP RAP AND FILL _
ON NORTH RIVER AT 72 NORTH ST.,
SALEM) MA 0 i 970
AUGUST 7, IgCI6
D.J. LYNCH ENGINEERS t SURVEYORS
P.O. 5OX 1303 MAR6LEHEAD, MA 0 i945
I
NOTE: HISTORIC S MEAN HIGH MysO N
WATERS ARE FROM FIELD
OBSERVATION AND C°yy Sr
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LAND OF
EXISTING CONDITIONS. �� FRAT
c o
COMM. OF = r Z <� taoR�H RW t�
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TOP OF SLOPE RUBBLE GRANITE BLOCK WALL 0 1 LOCUS MAP
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(DEED)p P`w �p0 = ASSESSORS PAR Ci NUMBER MAP 26
TOP OF_SLOPE 4 a w RUBBLE- REMAINS
Z o GRANITE
OflROKE-N
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WOOD COLUMNS _ R I V E R
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rn -n PILES (15)t CVV
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rnMENT SURVEY -AND
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rn 40. SZ , DETERMINE EXACT
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MA55. BAY TRANSIT I`
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SCALE (= 30' t 4p 2-3331
PLAN ACCOMPANYING PETITION OF SHEET i OF Z
BURNHAM ASSOCIA7E5 INC.
FOR 5EAWALL , RIP RAP AID FILL
ON NORTH RIVER AT 72 NORTH ST.
SALEM , MA 01970
AUGUST 7 , 1996
D.J. LYNCH ENGINEERS t 5URVEYOR5
PO BOX 1303 MARBLEPFAD . NIA n1gAS
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET,BOSTON MA 02108 (617)292-5500
ARGEO PAUL CELLUCCI ' -_' - I i ` „—��- , - - TRUDY COXE
Governor ` `. .rt-.,L ly Secrenry
L;� DAVID B. STRUHS
Commissioner
p7
`�!`'"� G C%. `�`�'57 DeP$° December 11, 1997
In the Matter of Docket No. 97-055
File No. 064-0249
BURNHAM ASSOCIATES, INC. Salem
FINAL DECISION
'This^ is a wetlands permit appeal by petitioner-applicant
Burnham Associates, Inc . from a Superseding Order of Conditions
issued to it by the Department' s Northeast Regional Office on April
29 , 1997, pursuant to M.G.L. c . 131, §40, which denied proposed
work in and/or along the shoreline of the North River at 70A North
Street in Salem, Massachusetts, primarily for lack of information
sufficient to determine that the proposed work complied with the
Wetlands Protection Act, M.G.L. c. 131, §40 .
The petitioner has filed a notice of withdrawal of this
appeal, as it has filed a new notice of intent . The withdrawal is
unopposed.
Accordingly, withdrawal of the appeal is allowed, pursuant to
310 CMR 1 . 01 (6) (e) (1995 rev. ) , and this appeal is dismissed as
moot, pursuant to 310 CMR 1 . 01 (5) (a) 2 (1995 rev. ) . The Superseding
-2-
Order of Conditions for Wetlands File No. 97-055 is hereby made
final . Both the dismissal of this appeal and the finalization of
the Superseding Order of Conditions are without prejudice to the
petitioner-applicant' s new wetlands filing.
The parties to this proceeding are hereby notified of their
right to move for reconsideration of this Decision under 310 CMR
1 . 01 (14) (d) (1995 rev. ) . The must be filed with the Docket Clerk
and served on all other parties within seven business days of the
postmark date of this Decision.
Any party to this proceeding may appeal this Decision to the
Superior Court pursuant to the Massachusetts Administrative
Procedure Act, M.G.L. c. 30A, §14 (1) . The complaint must be filed
in the Court within 30 days of receipt of this decision.
" tel
Mark Silverstein
Administrative Law Judge
For the Commissioner
AFFIDAVIT OF SERVICE
Under the Massachusetts Wetlands Protection Act
(to be submitted to the Massachusetts Department of
Environmental Protection and the Conservation Commission
when filing a Notice of Intent
I, William H. Kelley, hereby certify under the pains and penalties of perjury that
on J911V �y I gave notification to the abutters in compliance with the second paragraph of
Massachusetts General Laws Chapter 131, Section 40, and the DEP Guide to Abutter Notification
dated April 8, 1994, in connection with the following matter:
A notice of Intent filed under the Masschusetts Wetlands Protection Act by
BURNHAM ASSOCIATES with the City of Salem Conservation
Commission on /� for property located at
70A North Street, Salem, MA.
The form of the notification, and a list of the abutters to whom it was given and their
addresses, are attached to this Affidavit of Service.
Name Date
Ell-
List of Abutters Notified
Notice of Intent
70 A North Street
Salem, MA 01970
14 December 1997
(Certified/return receipt mail)
Mass. Bay Trans. Authority, 10 Park Plaza, Boston, MA 02216
Mass. Highway Dept., c/o Eric Botterman, 519 Appleton St., Arlington, MA 02174
City of Salem, City Hall, Salem, MA 01970
Louis M. Andrews, c/o HMA, 72 North Street, Salem, MA 01970
Burnham Associates, 26 Dearborn Street, Salem, MA 01970
f
1.
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET,BOSTON MA 02108 (617)292-5500
ARGEO PAUL CELLUCCI TRUDY CORE
Govemor -Idac A3u-' �u geld WGIeS Secretary
r I DAVID B. STRUHS
Commissioner
In the Matter of Docket No. 97-055
File No. 064-0249
BURNHAM ASSOCIATES, INC. Salem
ORDER re FURTHER PROCEEDINGS
At Boston this 5th day of November,. 1997 .
The petitioner-applicant agreed at today' s prehearing
conference' to file a new notice of intent for the proposed project
with the Salem Conservation Commission and to withdraw this appeal .
upon filing the new notice of intent, consistent with the
Department' s policy regarding multiple notice of intent filings,
Wetlands Program Policy 88-3 (Feb. 29, 1988 , rev. Mar. 1, 1995) (a
copy of which is attached to this Order] . The petitioner-applicant .
agreed to this based upon his express understanding that such.
dismissal would be without prejudice to his new wetlands filing.
Accordingly, it is ORDERED that :
1 . The petitioner-applicant shall, by 5 p.m. on December 5 ,
1997 :
1/ Attended by the petitioner-applicant and the Department only.
-2-
(a) File a new notice of intent for the project with the
Salem Conservation Commission; and
(b) File and serve in this proceeding a notice of
withdrawal of this appeal pursuant to Wetlands Program
Policy 88-3 , which shall state the date on which the new
notice of intent was filed and, if known, the new
wetlands file number assigned to the project by the
Department .
2 . If the petitioner-applicant files and serves the notice
specified in 1 (b) above, this appeal will be dismissed as
withdrawn, pursuant to 310 CMR 1 . 01 (11) (d) (1995 rev. ) , and the
superseding order appealed from (issued by the Department on April
29, 1997) will be made final solely as a denial based upon
information insufficiency pursuant to 310 CMR 10 . 05 (7) (h) , all
without prejudice to the petitioner-applicant' s new wetlands
filing.
3 . In anticipation of the above withdrawal and dismissal of
this appeal, the prehearing conference begun on November 5 , 1997 is
continued without date, and no prehearing conference report is now
being issued.
%I
Mark . `Silverstein
Administrative Law Judge
r
SERVICE LIST
Attorney or Representative Representing
Keith W. Kauppila, Esq. Burnham Associates, Inc .
1 Winthrop Sq. (petitioner-applicant)
Boston, MA 02110
Samuel J. Bennett, Esq. Department of Environmental
Senior Counsel Protection
Department of Environmental (respondent)
Protection
Office of General Counsel
1 Winter St . , 3rd fl .
Boston, Ma 02108
Chairperson Salem Conservation Commission
Salem Conservation Commission
City Hall
1 Salem Green
Salem, MA 01971
Cc :
Ralph Perkins
DEP Northeast Regional Office
10 Commerce Way
Woburn, MA 01801
BURNHAM ASSOCIATES, INC.
# 97-055
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET,BOSTON MA 02108 (617)292-5500
ARGEO PAUL CELLUCCI TRUDY COXE
Govemor Secretary
DAVID B. STRUHS
Commissioner
September 22 , 1997
In the Matter of
Docket No. 97-055
BURNHAM ASSOCIATES, INCORPORATED File No. 064-0249
Salem
PREHEARING CONFERENCE ORDER
A mandatory prehearing conference in this case will be held
before Administrative Law Judge Mark L. Silverstein on Wednesday,
November 5, 1997, beginning at 10 : 30 a.m. in the 3rd floor
hearing room of the Office of Administrative Appeals, Department
of Environmental Protection, One Winter Street ( "The Corner
Mall" ) , Boston, Massachusetts .
Purpose of the Prehearing Conference
The Conference is intended to:
1 . Assist the parties in resolving some or all of the issues
without a hearing. Consistent with this intention, the
Administrative Law Judge will explore with the parties the
possibility of referring this case to a trained mediator.
2 . Establish a schedule for all further proceedings, including
a date for a hearing.
"v c
2
3 . Identify the issues to be addressed, and the evidence to be
introduced, and the witnesses who will testify at the
hearing.
Required Action by the Parties
All parties are ORDERED to :
1 . Confer at least once prior to the date of the Prehearing
Conference to discuss settlement, including the possible use
of mediation to resolve some or all of the issues in the
case, and be prepared to report on the outcome of their
discussions at the Prehearing Conference.
2 . Exchange, and file with the Docket Clerk, at least 7
calendar days prior to the conference :
a. written statements of all unresolved issues (joint
statements of issues are encouraged) ;
b . written lists of the witnesses each party intends to
present at the hearing, together with a brief written
summary of the expected testimony of each witness (see
paragraph 4 of the enclosed Directive) ; and
C . if the case involves the appeal of a permit or a
license, the applicant must provide to all of the other
parties, and file with the Docket Clerk, copies of any
new or altered project plans on which the applicant
intends to rely in this proceeding; or
d. if the case involves the appeal of a civil
administrative penalty, the Department must provide to
3
the petitioner a written explanation of the calculation
of the penalty amount .
3 . Attend the Prehearing Conference - in person or by a duly
authorized representative who has the authority to make
binding agreements, including scheduling commitments .
Alternatively, any representative without such authorization
must come to the Prehearing Conference with the name (s) of
any person (s) from whom authority is required and must be
able to reach such person at the time of the Prehearing
Conference .
4 . Bring to the Prehearing Conference, with copies for the
Administrative Law Judge and other parties, any written
statements of Department policy or guidance that a party
intends to cite or introduce into evidence at the hearing.
5 . Be prepared to state your position on whether to elect a
simplified hearing in this case . See 310 CMR 1 . 01 (8) (a) .
6 . Be prepared to commit to scheduling for all further
proceedings consistent with the Directive .
7 . Be prepared to state your position on whether direct
testimony should be prefiled in this case . See 310 CMR
1 . 01 (12). (f) . Please note that because the use of prefiled
direct testimony tends to speed the hearing and avoid
surprise, its use is strongly preferred, particularly when
there are complex issues of fact .
y T
4
Applicable Time Line
It is expected that the final hearing will take place within
four months of the date of the Conference . See "Case Handling
Time Line" attached to the Directive .
Any party that wishes the final hearing to be scheduled more
than four months after the date of the Prehearing Conference must
come to the Conference prepared to present detailed reasons in
support of such an extension. The parties are advised that a
strong showing of special circumstances must be made for an
extended hearing date to be assigned.
Sanctions for Noncompliance with This Order
Any party that fails to comply with this Order will be
subject to appropriate sanctions, including, but not limited to,
dismissal for failure to prosecute or termination as a party.
Rescheduling of Prehearing Conference Disfavored
Requests to reschedule the Prehearing Conference are
disfavored and generally will not be granted. In the
extraordinary event of scheduling conflicts which cannot be
resolved, requests to reschedule must be made by written motion
served on all parties . The motion must provide specific reasons
for the request and state alternative dates that have been agreed
to by all of the parties . A request for rescheduling will not
stay, or otherwise alter, the scheduled date of the Conference
unless, and until, the request is granted by the Administrative
Law Judge .
s
Notice to Persons Copied on Service List
Those persons shown on the attached Service List as
receiving copies of this Order (other than D.E. P. personnel) are
advised that they are not parties in this case and will receive
no further notice of these proceedings unless they both a) file a
Motion to Intervene or a Motion to Participate (see 310 CMR 1 . 01
(7) ) on or before the date of the Prehearing Conference; and
b) comply with all the other requirements of this Order,
including the requirement that they attend the Prehearing
Conference .
Mar L. Si erstein
Administr tive Law Judge
Enclosures
f
I
SERVICE LIST
In Re : Burnham Associates, Inc .
Docket No. 97-055 File No. 064-0249
Representative Party
Craig C. Burnham APPLICANT-PETITIONER
President Burnham Associates, Inc .
Burnham Associates, Inc .
26 Dearborn Street
Salem, MA 01970
Salem Conservation Commission CONSERVATION COMMISSION
City Hall
1 Salem Green
Salem, MA 01971
Samuel J. Bennett, Esq. DEPARTMENT
DEP - Office of General Counsel Dept . of Environmental
One Winter Street - 3rd Floor Protection
Boston, MA 02108
cc :
Ralph Perkins
DEP - Northeast Regional Office DEP STAFF
10 Commerce Way
Woburn, MA 01801
date : September 17, 1997
i
Cemmorwecr er MasscC'iuset t
Executive Office er Er4crmerld Arrcirs .
_Departmeh of
• EnWronmentat Protection
WINim F.w.w
:�=
o•.a a me.
COIO TONZORMIS DIaEC=7E ON TnW r.nC= •AND TniIMMMS FOR
AWMXCATORT APPEALS
1) PURPOSE The purposes of this Directive are to:
a) Achieve efficient, expeditious and fair resolution of
adjudicatory appeals;
b) Eliminate the present backlog and prevent future
backlogs of adjudicatory appeals;
c) Adopt the specific recommendations of the
AdmizuLstrative Hearing Reform Advisory Committee, as
outlined in their Final Report, dated December 28, 1993 ;
.d) Purther effectuate and implement the Commissioner' s
Directive in Management of Adjudicatory Appeals; dated .
February 18, 1994, with specific reference to Section
2 (a) of that Directive, relating to the institution of
time limits in adjudicatory hearings;
e) Provide guidance to Administrative Law Judges ("ALJs")
and the parties in the application of similar provisions
in the revised Department of Environmental Protection
(•Department") rules for adjudicatory. proceedings, 310
CMR 1. 01;
f) Supersede the Commissioner's Directive in Mandatory
Timelines, dated March 1, 1993, and reissue Mandatory
Case Flow Timelines .
2) APPLICABILITY All Department staff and other persons involved in
the adjudicatory hearing process are instructed to comply with this
Directive.
3) Consistent with the above purposes, the Commissioner's
Directive in Un=datory Timelines for Adjudicatory Hearings, dated
Warch 1, 1993, is superseded, and a mandatory 12 month .case flow
timeline, attached haretc, is established for all cases, except
those: designatAod major and complex pursuant to paragraph 6 below;
which may regn3re . an enlargement of time -to obtain physical
evidence that 'is temporarily :- unavailable due to seasonal._ _
conditions; gra=ted axpeditedittatus pursuant to paragraph 9 below;
OM WYer suriR • aeaea Y 0210! • RAX(et7)SS670U • T•Mpb•m(07)22"M
err a.�s�dM A�
� r
where all parties have agreed to an. enlargement of ti0Ta'Ls; or
where the ALJ, .with the approval of the chief ALJ, detersfaec Wit .
as enlargement of time is in the. interest , of efficiency
fairness.
4) LIMITS ON PRESENTATIONS Also consistent with .the
es w3.th an assessment o£ the Department' s actual
above purposes, articularly
over the last eighteen yearn, p
experience is hearingsth the
�Ption effort, and with
the Wetlands backlog reduction ve
during th _
above-mentioned aestabliehed fon all cases, following
ubjso ctato theme presumptive
limits are hereby
of .the ALJ to vary these limits pursuant to the criteria set out in
310 CHR 1.01 (13) (d) , (e) and (f) .
a) The overall, time for hearings should not exceed one
day per party;
b) The number of witnesses generally should not exceed
two witnesses per party;
c) The length of prefiled direct testimony should not
exceed 15 pages per witness, excluding exhibits;
d) The length of final briefs and other legal memoranda
should not exceed 15 pages, excluding exhibits;
a) The length of final decisions and decisions on moticas
should not exceed 15 pages;
f) Individual time limitations on cross exaz-i"tion Of
witnesses may be set at the prehearing conference or
prior to the opening of the hearing, consistent with the
time, number of witnesses and page length as established,
in a) , b) and c) above, but attorneys or other authorized
representatives shall be forewa.:•ned to plan ail budget
their time per witness accordingly, and
ng to
do so will not be considered good cause for varying time
limits pursuant to 310 CHR 1.01 (13) (d) , (a) and (f)
g) Groups of aligned parties are generally subject to the
above numerical limits, except when important differences
is responsibility or representation justify a variation
therefrom.
5) Administrative Law Judges are authorized and
directed to establish specific limits in all cases' consistent above
paragraph 4 above. Limits identified in paragraph
shall be established at the prehearing conference or at a
continuance thereof if allowed by the ALJ and assented to by all
parties. Limits identified in 4 (f)- above mEytha hearing the
prehe&r�,ng conference or prior to the opening
6) The presumptive limits and mandatory
timelines referenced in paragraphs Z and 4 shall not apply is cases
Which are designated. =major and complex• by the general Ceounsel O
her design••, based on the complexity or novelty ftel :harm or
magaitil"L'--Of 'the project, potential- for: •nvironmen
beaelit; ='' Constitutional considerations• • or. other relevant
considegation. In such major and complas Cases, an :individual
and limits consistent with paragraphs
be established by the ALJ, but they should not follow the mandatory
timelines or presumptive limits and should be ova=sated and
established on a case by case basis, also subject to variation for'
good cause shown, consistent with 310 CHR 1.01 see.13 (d) , (a) and
(f) `and this Directive. . . A rregcsst .to the General Ccuisel to
designate a .case as •major aid complex• shall be made not later
than the date of the prehearing conference.
7) TRANSCRIPT In cases designated major and complex pursuant to
paragraph 6 above or granted expedited status pursuant to paragraph
9 below, the party or parties requesting such designations shall be
responsible for retaining and paying the costs of a court
stenographer, including the costa of providing transcripts to all
parties, except in cases where fairness may require a different
allotment of costs, pursuant to 310 CMR 1.01 (13) (m) (1)
8) SMMr I4IED HEAR-RING In cases where parties have elected a
simplified hearing pursuant to 310 CMR 1. 01 (8) (a) , the overall time
for the hearing should not exceed 2 . 5 hours per party, subject to
variation for good cause shown, consistent with 310 CMR 1.01
section (13) (d) and .this Directive. The hearing date shall be not
more than 30 days from the date the agreement to vary the
. procedures of M.G.L. c.30A sec.11 was filed. The final decision
shall be issued not more than 30 days from the date of the hearing.
9) EXPEDIT3D CASES A case may, in the discretion of the General
Counsel or her designee, be scheduled for hearing out of
chronological order pursuant to the Department policy on expedited
cases-.
Approved:
David-B . Struhs
Commissioner
Date: /i�^ �
r
CASE HANDLING TIME LINE
Appeal Fled
a
1.5 months
b
Prehearing Conference Order Sent
b
1.5 months
b
Prehearing Conference Held
b
4 months
b
Hearing Held
b
2 weeks
Hearing Record Closes
a
3.5 months =t>
b
Decision Issued
ACCESS TO DEP'S BOSTON OFFICES:
DEP' s Boston offices are at Downtown Crossing at The Corner Mall (1
Winter Street) , a retail building located on the northeast corner
of Washington g Street and Winter Streeto osi
( pp to Filene' s and
Macy' s department stores , and one block from Boston Common) . The
Department ' s offices occupy the building' s upper floors . You can
reach the Department' s offices by using the escalators at the
Summer Street entrance . You will be required to show a picture
identification (such as a Massachusetts driver' s license) and Sign
a registration book maintained by the receptionist .
DIRECTIONS TO DEP'S BOSTON OFFICES:
By XBTA Subway:
Green Line to Park Street (main subway exit is at Boston
Common on Tremont Street , across . from Winter Street , 1 block
from DEP) .
Red Line or Orange Line to Downtown Crossing (at the
intersection of Washington and Winter Streets across from The
Corner Mall ) .
Blue Line to State Street (from subway exit at Old State
Meeting House, walk four tiocks south along Washington Street
to Winter Street) .
By Commuter Rail :
From North Station, take Greer: Line inbound to Park Street or
Orange Line inbound to Downtown Crossinc (see subway
directions above) .
From South Station, take Red Line inbound to Downtown Crossing
(see subway directions above) , or walk west on Summer Street
to the Washington/Winter Street intersection.
By Auto:
See the directions on the back of this page . Please note that
Winter Street and the adjacent portion of Washington Street
are closed to auto traffic during regular business hours, and
that during those hours there is no on-street parking in the
vicinity of DEP' s Boston offices . In addition, Central
Artery/Tunnel construction has made auto transit into and out
of Boston' s financial and Chinatown districts more difficult ,
especially during commuter rush hours, and may cause changes
in exiting from the Mass Pike and Southeast Expressway to
Chinatown and the financial district .
f
Directions to DEP :
one Winter Street, Boston, Ma. G2108
From the South: Take Rte 3/93 , the Expressway. From the hic_hwav,
take Exit ;20 , Mass Pike, Chinatown, and when the ex-' t solits-stall
to the left for "local" (the Pike ramp goes to the right) . Cc left
at the lights, and travel straight cn Kneeland Street for several
blocks . See the following suggestions for parking ideas .
From the West : Take Rte '90 (Mass Pike) to the end, (stay to the
right when the road splits) . At the traffic lights, go left onto
Kneeland Street . Travel straight for several blocks . See the
following suggestions for parking ideas .
From the North: Take Rte 3/93 , the Expressway. From the highway,
take Exit #25 , Haymarket Sc/Gov' t Center, turn richt at the bottom
of the ranip. D.river.strai#t through the first set of traffic lights
up New Chardon Street, turn left at the next set of lights on
Cambridge Street . Cambridge Street will change to Scollay Square,
and Scollay Square becomes Tremont Street . Winter Street will be on
reach Boston Common_ although it is closed to
your left as you g
automobiles . There are several parking lots nearby. If you continue
on Tremont Street , you will reach Kneeland, and the fcllowinc
succestions will help you locate_ parking.
Closest Parking (from south and west) : r_cm Kneeland, turn richt
onto Washington Stre=_t . Go straic;a __.rough the f_rst traffic
light . (From north) : Fc-1-1 --w Tremor-= ,, turn left on Ecy'_ston Street,
and left on Washir_cton.
There is parking _ a lot on tae r'_ght and left Side of Washinctcn
Street . Suisse Hotel also ':as a hotel par'.cinc carate .
V
COVER
SHEET FAX
To: Larry Gill, EOEA-DEP
Fax#: 978 661 7615
Subject: Copy of letter
Date: December 8, 1999
Pages: 3, including this cover sheet.
COMMENTS:
Larry:
Sorry for mix up. Two separate faxes were shuffled. Here is copy of Burnham letter as
requested.
Thanks for any help you provide.
Steve.
From the desk of...
Stephen Dibble
Assistant Planner/Conservation Administrator
City of Salem, Planning Dept.
One Salem Green
Salem,MA.,01970
(978)745 9595 ext.311
Fax: (978)740 0404
f
Conservation Commission
Salem, Massachusetts 01970
F� �V
�'lUSsr\c.
October 6, 1999
Secretary Bob Durand
Executive Office of Enviromental Affairs
100 Cambridge Street 20th Floor
Boston, MA 02202
RE: 14 Franklin Street and 70A North Street, Burnham Properties
Dear Secretary Durand:
On behalf of the Salem Conservation Commission, I am writing to notify you of
extensive environmental violations and to request immediate assistance from your agency. The
City of Salem Conservation Commission has been unsuccessful in repeated attempts over many
years to rectify the violations. Enforcement orders, fines, and years of ongoing litigation have
not helped stop the continued violations along two sections of the North River in Salem. A site
inspection was recently conducted on August 25, 1999 by our administrator and the following is
a partial listing of what was observed and transmitted to the Conservation Commission:
14 Franklin Street:
1. Work undertaken without permits includes: site work, building construction, seawall
alterations and repair, marina development with two floats, barge, 3 boats, 2 floats,
gangway, secured by a spud pile.
2. Chronic grounding of barge(s) on mud flats.
3. Fueling operations from both barge and landside (3' from bank) with no containment and
evidence of spill(s).
4. No approved contingency plan in case of spill.
5. Storage of chemicals, paints, oils and other petroleum products on barge.
6. Storage of materials and equipment in resource area.
7. Marine contracting debris scattered all over landside.
8. Floating planks stored beside barge and seawall measuring approximately 20' x 4'.
9. An extensive variety and quantities of hazardous materials, fuels, oils, gases, paints,
greases and other products stored throughout property. Hundreds of these products,
which contain HazMat warnings, are resting on the ground, and many of which are open
and exposed to elements including: open buckets containing various liquids, hundreds of
and exposed to elements including: open buckets containing various liquids, hundreds of
containers of grease and paints, many 55 gallon drums behind building, hydraulic fluid,
over 50 gas cans, gas tanks, numerous propane tanks scattered around site, and an above
ground heating fuel tank. No containment observed.
70A North Street:
1. Debris, machinery, and equipment scattered all over landside and bank.
2. Oil/tar leaking off wood planks.
3. Chronic grounding of barge(s)and floats on North River mud flats.
4. Barges held in place by spud piles.
5. Jersey Barriers installed to secure property were relocated onto bank of River.
6. Potential impact to North River.
7. Extensive sheen on water surface is trapped by barge and barge ropes at headwall to
River. Large schools of fish observed beside sheen and appeared to have much trouble__
swimming beneath polluted entrapped area. -
The City of Salem,the South Essex Sewage District and Salem Sound 2000 has made
great strides in improving water quality throughout the region. The owner of these properties,
Burnham Associates, through the actions highlighted above, has already impacted the North
River and poses a tremendous environmental threat to the North River and the Franklin Street
neighborhood.
The immediate assistance of your agency is requested. I hope that the you share the
Commission's concerns and that you can take action to protect this valuable resource. The Salem
Conservation Commission Administrator is Stephen Dibble and he can be reached at (978) 745
9595 ext 311. Please call him with any questions you may have.
Thank you for your attention to this important matter.
Sincerely,
Mark George
Chairman
Cc: Salem Conservation Commission
YW
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