16-18 SCOTIA STREET - BUILDING INSPECTION //7l1/IPdd(G $ y
UPC 10333
No.153L-3
HASTINGS. MN
I
oNDrr�. CITY OF SALEM, MASSACHUrSETTS
BOARD OF APPEAL
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS O 1970
TELEPHONE: 978-745-9595
o� FAX: 978-740-9846 9 p p
KIMBERLEY DRISCOLL 2009 ,LP 30 A u• o0
MAYOR
CITY CLC ;`,i, '.:=.'':,;
September 28, 2009
Decision
City of Salem Zoning Board of Appeals
Petition of BVS CORPORATION seeking Variances from required lot area, lot
width and minimum rear yard depth to allow for the subdivision into four single-
family house lots of the property at 16 SCOTIA STREET, Salem,MA, in the
Residential One-Family Zoning District(Rl).
Petitioner seeks Variances pursuant to the Salem Zoning Ordinance, §6-4,Table I:
Residential Density Regulations (recodified on September 10, 2009 as §4.1.1:Table of
Dimensional Requirements).
Statements of fact:
1. William A. Quigley,Jr., Esq. represented the petitioner at the hearing.
2. In a petition dated May 21,2009,the petitioner requested dimensional Variances to
create four(4) buildable,single-family house lots.
3. A Statement of Hardship submitted with the petition explained that the proposed
parcels were originally laid out in 1961,but were not built on; since 1961,the zoning
has changed such that the originally proposed house lots no longer conform to
current dimensional requirements.
4. The Statement of Hardship also explained that the site had been contaminated with
asbestos when purchased,and the petitioner had expended a great deal of time and
money cleaning the site and bringing it to its current clean,usable state. In order to
recover costs expended during cleanup,the petitioner stated, it was necessary to
develop four house lots on the site.
5. A public hearing on the above mentioned Petition was opened on June 17, 2009,
pursuant to Mass General Law Ch. 40A, §11.
6. At the meeting on June 17, 2009, numerous residents,including direct abutters,
spoke in opposition to the project,citing concerns that the project's density was too
great and the proposed house lots were too small for the neighborhood. Other
comments included concerns about emergency vehicle access, flooding, lack of
parking, snow removal and traffic. Among the residents who stated opposition to
the project were Ward 4 Councillor Jerry Ryan,4 Nichols St.; Ward 3 Councillor
2.
Arthur Sargeant, 8 Maple Avenue;and At-Large Councillor Steven Pinto, 55
Columbus Avenue.
7. At the June 17, 2009 meeting,Board members also expressed concern about the
density of the project and size of the proposed house lots, and indicated that the
Board might view the project more favorably if two or three house lots were
proposed rather than four, the Board also suggested that a cul-de-sac or turnaround
of some type would improve the project.
8. The hearing was continued to August 19,2009 and September 16,2009.
9. On September 16,2009,the petitioner presented revised plans,dated June 24, 2009,
showing a reduction in the number of house lots proposed from four(4) to two (2).
The new plans also showed a cul-de-sac. Attorney Quigley stated at the meeting that
the only relief now needed would be lot area and rear yard depth.
10. At the September 16,2009 meeting,Ward 4 Councillor Jerry Ryan again spoke about
the project, saying he no longer opposed it,since the density had been significantly
reduced;however,he still had concerns about flooding onto neighboring properties,
and that at meetings with the developer,he had been assured that measures would be
taken to alleviate this effect. He also said that trees should be added to act as a
buffer between the new houses and abutting properties.
11. Lawrence Olcott,23 Summit Street, submitted correspondence via Councillor Ryan
opposing the project because of the proximity of the proposed houses to his
property and because he felt the angle of the proposed houses was out of character
with the neighborhood.
12. The pubic hearing was closed on September 16,2009,with the following Zoning
Board of Appeals members present: Rick Dionne (chairing the meeting),Beth
Debski,Bonnie Belair(alternate), and Jimmy Tsitsinos (alternate).
13. At its meeting on September 16,2009,the Board of Appeals voted four (4) in favor
and none (0) opposed to grant Variances under§64,Table I: Residential Density
Regulations (recodified on September 10,2009 as §4.1.1: Table of Dimensional
Requirements).
The Board of Appeal, after careful consideration of the evidence presented at the public
hearing, and after thorough review of the plans and petition submitted, makes the following
findings:
1. Desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent or purpose of
the zoning ordinance, as the petitioner significantly altered the plans to address
° neighborhood concerns about density and access, and agreed to submit drainage
alteration plans in order to prevent flooding onto neighboring properties.
3
3. In permitting such change,the Board of Appeals requires certain appropriate
conditions and safeguards as noted below.
On the basis of the above findings of fact and all evidence presented at the public hearing
including, but not limited to,the Plans,Documents and testimony,the Zoning Board of
Appeals concludes:
1. To allow for creation of two (2) single-family house lots on the property at 16 Scotia
Street,the requested Variances from dimensional requirements for the One-Family
Residential Zone are granted,as shown on the revised plans titled"Board of Appeals
Plan,Scotia Street,Salem,Mass.," dated June 24, 2009,and prepared by Hayes
Engineering,Inc.
In consideration of the above,the Salem Board of Appeals voted, four(4) in favor(Dionne,
Belair,Debski and Tsitsinos) and none (0) opposed,to grant petitioner's requests for a
Variance subject to the following terms,conditions,and safeguards:
1. Petitioner shall comply with all city and state statutes,ordinances,codes and
regulations.
2. All construction shall be done as per the plans and dimensions submitted to and
approved by the Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall
be strictly adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. A Certificate of Occupancy is to be obtained.
6. Petitioner shall obtain street numbering from the City of Salem Assessor's Office
and shall display said number so as to be visible from the street.
7. Petitioner is to obtain approval from any City Board or Commission having
jurisdiction including, but not limited to,the Planning Board.
8. Unless this Decision expressly provides otherwise, any zoning relief granted does
not empower or authorize the Petitioner to demolish or reconstruct the structure(s)
located on the subject property to an extent of more than fifty percent (50%) of its
floor area or more than fifty percent (50%) of its replacement cost at the time of
destruction. If the structure is demolished by any means to an extent of more than
fifty percent (500/0) of its replacement cost or more than fifty percent (50%) of its
floor area at the time of destruction,it shall not be reconstructed except in
conformity with the provisions of the Ordinance.
9. Petitioner is to submit a Street Drainage Alteration Plan to the Building Inspector
prior to beginning construction.
4
10. The existing trees on the property are to remain.
11. Petitioner is to submit a landscaping plan to be approved by the City Tree Warden
prior to beginning construction.
Rica Dionne
Salem Zoning Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD
AND THE CITY CLERK
Appeal from this decision,if any,shall be made pursuant to Section 17 of the Massachusetts
General Laws Chapter 40A,and shall be filed within 20 days of filing of this decision in the
office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A,Section
11,the Variance or Special Permit granted herein shall not take effect until a copy of the
decision bearing the certificate of the City Clerk has been filed with the Essex South Registry
of Deeds.
LoKIMINAL UUMPLAINT I 0536CR002852
Trial Court of Massachusetts
DEFENDANT Salem District Court
HIBBARD, LILLIAN
3 BELGRADE STREET
REVERE, MA 02151 TO ANY JUSTICE OR CLERK-MAGISTRATE
OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT EYES HAIR
F U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth, on oath complains that on the date and at
the location stated herein the defendant did commit the
DATE OF OFFENSE PLACE OF OFFENSE offense(s) listed below.
10/26/2004 SALEM
COMPLAINANT - POLICE DEPARTMENT
SCOTT, JOANNE I SALEM W CAV, Ix-1 1 �r
DATE OF COMPLAINT RETURNATE AND TIME ;
08/23/2005 09/2 005 9:00 AM .!; , d! ?/
COUNT-OFFENSE
1. 666666 MISCELLANEOUS MUNIC ORDINANCE/BYLAW VIOL
on 10/26/2004 did MGL 111-S722-S123, in violation of FAIL TO COMPLY WITH BOARD OF HEALTH ORDER of the City or Town of SALEM.
COUNT-OFFENSE
COUNT-OFFENSE
COUNT-OFFENSE
i
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON (DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE COURT Salem District Court
Hon. Robert A. Cornetta ADDRESS 65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST.CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST:X
�ramuvAL GUnll'LAIN I 0536CR002851
kDATE
NDANT Trial Court of Massachusetts �26�)
s1?TO, JOSEPH S Salem District Court
BEACH STREET
ERE, MA 02151 TO ANY JUSTICE OR CLERK-MAGISTRATE
OF THE SALEM DISTRICT COURT
F BIRTH SE% RACE HEIGHT WEIGHT EYES HAIR
M U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT 0 SOCIAL SECURITY# Commonwealth, on oath complains that on the date and at
the location stated herein the defendant did commit the
DATE OF OFFENSE PLACE OF OFFENSE offense(s) listed below.
10/26/2004 SALEM
COMPLAINANT POLICE DEPARTMENT
SCOTT, JOANNE SALEM = GV . C-4
DATE OF COMPLAINT RETURNS DATE AND TIME'
08/23/2005 09/Y2/2005 9:00 AM "
COUNT-OFFENSE
1. 666666 MISCELLANEOUS MUNIC ORDINANCE/BYLAW VIOL
on 10/26/2004 did FAIL TO COMPLY WITH BOARD OF HEALTH ORDER, in violation of MGL 111-S122-5723 of the City or Town of SALEM.
COUNT-OFFENSE
COUNT-OFFENSE
r
T-OFFENSE
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
! FIRST JUSTICE COURT Salem District Court
Hon. Robert A. Cornetta ADDRESS 65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST.CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST: X
CRIMINAL COMPLAINT I 0536CR002860
Trial Court of Massachusetts
DEFENDANT Salem District Court
HIBBARD, DANIEL
AAA MODULAR HOMES
507 MAIN STREET TO ANY JUSTICE OR CLERK-MAGISTRATE
SAUGUS, MA 01906 OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT EYES HAIR
M U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth, on oath complains that on the date and at
the location stated herein the defendant did commit the
DATE OF OFFENSE PLACE OF OFFENSE offense(s) listed below.
10/24/2004 SALEM /
COMPLAINANT POLICE DEPARTMENT - q/a�07
SCOTT, JOANNE SALEM SE1 �� �d�����j� .
DATE OF COMPLAINT RETURN DATE AND TIME
08/23/2005 09/2312005 9:00 AM
COUNT-OFFENSE
1. 666666 MISCELLANEOUS MUNIC ORDINANCE/BYLAW VIOL
on 10/24/2004 did FAIL TO COMPY WITH BOARD OF HEALTH ORDER, in violation of MGL711-S122-5723 of the City or Town of SALEM.
COUNT-OFFENSE
COUNT-OFFENSE
COUNT-OFFENSE
COMPLAINANT - SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE COURT Salem District Court
Hon. RobertA. Cornetta ADDRESS 65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST. CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST. X
CRIMINAL COMPLAINT 0636CR003385 Trial Court of Massachusetts t� )
DEFENDANT Salem District Court
PERULLO, PAM
315 BEACH STREET
REVERE, MA 02151 TO ANY JUSTICE OR CLERK-MAGISTRATE
OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT EYES HAIR
F U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth,on oath complains that on the date and at
the location stated herein the defendant did commit the
offense(s)listed below.
DATE OF OFFENSE PLACE OF OFFENSE
06/30/2006 SALEM /Ja7�
COMPLAINANT POLICE DEPARTMENT
SCOTT, JOANNE SALEM CV. C dw
M T RETURN DATE AND TIME c J' Y IPV 1 r�0
10/04/2006\ 10/27/2006 9:00 AM SUM�C�I f 1�INS
SE �1
1. 111/123 NUISANCE, FAIL ABATE PRIVATE HEALTH c111 §123
on 06/30/2006,being the owner or occupant of a private premises located at 3,4,5,6 SCOTIA STREET,SALEM,MA,did knowingly fail to obey an order of the
Board of Health of CITY OF SALEM BOARD OF HEALTH requiring him or her,at his or her own expense,to remove within a stated time one or more
nuisances,sources of filth or causes of sickness found thereon,in violation of G.L.c.111,§123. (PENALTY:forfeiture of not more than$1000 for everyday
during which he or she knowingly violates such order;and§129:nuisance may be ordered removed or destroyed at defendant's expense and under direction
of the Board of Health.) -
COUNT-OFFENSE
COUNT-OFFENSE
COUNT-OFFENSE
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE COURT Salem District Court
Hon. Robert A. Cornetts ADDRESS65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST. CLERK ON(DATE) I Salem, MA 01970
COPY
ATTEST:X
APPLICATION NO. (COURT USE ONLY) PAGE
Trial Court of Massachusetts
of District Court Department lR
1 the undersigned com�p ynt, request that a criminal complaint issue against the accused charging the
offense(s) listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: Salem District Court
!.l ONLY MISDEMEANOR(S), I request a hearing G WITHOUT NOTICE because of an imminent threat of 65 INashington Street
BODILY INJURY C. COMMISSION OF A CRIME C FLIGHT WITH NOTICE to accused. Salem. MA. 01970
1,;ONE OR MORE FELONIES. I request a hearing F i WITHOUT NOTICE 1=! WITH NOTICE to accused.
G WARRANT is requested because prosecutor represents that accused in not a ARREST STATUS OF ACCUSED
Y pp
unless arrested.
I.1 HAS �l HAS NOT been arrested
• • . : • r
NAME(FIRST MI LAST)AND ADDRESS
BIRTH DATE SOCIAL SECURITY NUMBER
PCF NO. MARITAL STATUS
DRIVERS LICENSE NO.
STATE
GENDER HEIGHT WEIGHT
EYES
HAIR RACE COMPLEXION SCARS/MARKS(TATTOOS
BIRTH STATE OR COUNTRY DAY PHONE
EMPLOYER/SCHOOL MOTHER'S MAIDEN NAME(FIRST MI LAST) FATHER'S NAME(FIRST MI LAST)
COMPLAINANT NAME(FIRST MI LAST)
/ COMPLAINANT TYPE - PD
ADDRESS { l h POLICE ❑ CITIZEN L7 OTHER
PLACE OF OFFENSE
i
INCIDENT REPORT NO. OBTN
CITATION NOS).
OFFENSE CODE DESCRIPTION
OFFENSE DATE
VARIABLES e. victim name,.controlled substance, 7 •'
f g' l 2 - type and value of property other variable in/omration;see Comp/ainf Language Manual)
OFFENSE CODE DESCRIPTION
OFFENSE DATE
2 VARIABLES '
OFFENSE CODE DESCRIPTION
OFFENSE DATE
3 VARIABLES
REMARKS
C1111LAINANT'S SIGNATURE DATE FILED
A HEAPING UPON THIS COMPLAINT APPLICATION r r v //! r / � ' +/
COURT USE ONLY / DATE OyHEA ING
—'—'—'-� WILL BE HELD AT THE ABOVE COURT ADDRESS ON } // TIME-0 HEARINGAV COURT USE ONLY
i I
CCR-t Ibao•)
1 C)AAUr .1 r r i t nnv
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
File No.: UAO-NE-05-3A003
IN THE MATTER OF: )
LILLIAN HIBBARD )
Salem—RTN 3-21960 )
16 Scotia Street )
APPEAL OF UAO AND CLAIM FOR ADJUDICATORY HEARING
1. INTRODUCTION
This matter involves the appeal by Lillian Hibbard ("Hibbard"or the "Petitioner") of a
Unilateral Administrative Order("UAO")issued by the Department of Environmental Protection
(the"Department')to the Petitioner for the alleged noncompliance with the Massachusetts
Contingency Plan ("MCP") in connection with two (2)lots owned at Scotia Street, Salem,
Massachusetts(the"Property"). The UAO is dated April 8, 2005. The Petitioner states that
several of the stated facts are incorrect and that the Department cannot provide evidence to
support some of its claims. Petitioner is aggrieved by the Order.
Petitioner requests this Court to dismiss the UAO because the Property is now in
compliance with the MCP. A copy of the UAO is attached.
I
II. BACKGROUND
This matter involves four (4) vacant lots located at 16 Scotia Street, Salem,
Massachusetts. Petitioner is the record owner of two lots, 5 and 6.
Prior to the purchase of the lots, the Department alleges that a release of oil or hazardous
materials had been reported in July 2002 to the Department. The release involved the presence
of asbestos from old bricks and chimney debris from a former owner. Petitioner states that she
did not file notice of the alleged release and that she was not responsible for the release.
A further Immediate Response Action Plan for the asbestos on the Property was filed by
AAA Modular Homes, LLC in October 2002 according to the Department.
The Department alleges that it sent a Notice of Noncompliance ("NON")to Petitioner
requiring the submission of documents pursuant to the MCP in 2004 and that the documents
requested have not been filed.
IIl. THE UAO
On or about April 8, 2005, the Department issued a Unilateral Administrative Order(the
"UAO")alleging that Petitioner was out of compliance with the MCP and ordering an IRA or
other filing within sixty(60)days of the Order demonstrating no significant risk.
The UAO states that Petitioner is in violation of the MCP at the Property and must
contain or remove the asbestos to comply with the MCP and the Order.
IV. REASONS FOR APPEAL
The Petitioner files this claim for Adjudicatory Hearing based upon the following reasons
for her aggrievement.
a) Petitioner disagrees with the Department's requirements for the Order; and
b) Petitioner took possession of the Property approximately one(1) year ago and
believes that steps have been taken to bring the Property into compliance with the
MCP; and
C) The Property was not contaminated by the Petitioner; and
d) The Department has not demonstrated that the condition of the Property violates
the Department's asbestos policy; and
The UAO was dated Friday,April 8,2005. The UAO was received after April 11,2005.
2-
e) Petitioner has not caused the alleged violation; and
f) Petitioner believes that an LSP has prepared the documents and submitted them to
the Department as requiredby the Order; and
g) Petitioner's counsel attempted to settle this matter in good faith and Petitioner has
cooperated; and
i) The Property is secure from a public health or safety threat.
REQUEST FOR RELIEF
1. That Petitioner should not be required or ordered to comply with the requirements
of the UAO that are in excess of the MCP;
2. That the Court finds that the Petitioner is not in violation of the MCP;
3. That the Court find that the Department has not met its burden of proof, and
4. Petitioner reserves the right to add other defenses.
LILLIAN HIBBARD
By Her Attorney,
Richard A.Nylen, Jr., sq.
Lynch,DeSimone& LP
12 Post Office Square, Suite 600
Boston,MA 02109
Tel: (617)348-4500
Fax: (617)348-4545
Dated: April 28, 2005
H:UAA Clfmbm\DF3di11im Hibbud-UAO-NE45-3ADOADo Appal ofUAO.dw
-3-
�—\ COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET, BOSTON, MA 02108 617.292-5500
MITT ROMNEY ELLEN ROY HERZFELDER
Govemor
Secretary
KERRY t ALEY
Gonernor
Lieute...t GoveROBERT W.GOLLEDGE,Jr.
Commissioner
April 8, 2005
VIA FIRST CLASS AND .
CERTIFIED MAIL#7003 3110 0001 6105 7090
Lillian Hibbard
3 Belgrade Street
Revere, MA 02151
RE: UNILATERAL ADMINISTRATIVE ORDER
UAO-NE-05-3A003
16 Scotia Street, Salem,MA
THIS IS AN IMPORTANT NOTICE. FAILURE TO RESPOND TO THIS NOTICE COULD
RESULT IN SERIOUS LEGAL CONSEQUENCES.
Enclosed is a Unilateral Administrative Order ("Order") requiring you to conduct
response actions at the location referenced above.
The reasons for issuing this Order and your right to appeal are explained in the attached
Order. Please read this Order carefully. Failure to take adequate action in response to it will
result in seriou' legal consequences.
Please contact Paegan Deering at(617) 654-6660 if you have any questions.
Yours truly,
Vwward
Kunce Kunce
Northeast Regional Director
This Into Is available in alternate formal Call Aprel McCabe,ADA Coordinator at 1617-5-S&I171.TDD Service-1600-398-3307.
DEP on 0r Wold Wide Web: hnyJAw .mass.9w/dap
PrWed m Recycled Paper
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
RE: Salem-RTN 3-21960
fNTHE MATTER OF: ) 16 Scotia Street
Lillian Hibbard ) UNILATERAL ADMINISTRATIVE ORDER
UAO-NE-05-3A003
1
I. THE PARTIES
1. The Department of Environmental Protection(the"Department" or"DEP')is a duly constituted
agency of the Commonwealth of Massachusetts. Its principal office is located at One Winter Street
in Boston,Massachusetts 02108.
2. Lillian Hibbard,3 Belgrade Street,Revere is the current owner of Lots 5 and 6 and the private
street abutting the lots on a plan recorded with the Essex(So.Dist.)Registry of Deeds Book 4749,
Page 1 and described in the Quitclaim deed to Lillian Hibbard recorded with the Essex(So.Dist)
Registry of Deeds Book 22508 Page 559.Lillian Hibbard is hereinafter referred to as
"Respondent".
H.DEFINITIONS
3. Unless otherwise indicated,the terms used herein shall have the meaning given to them by the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act,M.G.L.c.21E
C74G.L.c.2IF),and the regulations promulgated thereunder as the Massachusetts Contingency Plan
("MCP'),310 CMR 40.0000 et sem. In addition,the following term(s)shall have the meaning defined
herein:
Site:shall mean the properties located at 16 Scotia Street,Salem,MA and any other place or area
where the release(s)of oil or hazardous material(s)at and/or from said properties has come to be
located.
Pte:shall mean Lots 5 and 6 and the private street abutting the lots on a plan recorded with.
the Essex(So.Dist.)Registry of Deeds Book 4749,Page 1 and described in the Quitclaim deed to
Lillian Hibbard recorded with the Essex(So._Dist)Deeds Book 22508 Page 559.The Property
located at 16 Scotia Street comprises a portion of the site.
in. STATEMENT OF LAW
4. The Department's authority to issue this Unilateral Administrative Order ("UAO or Order) is
conferred by M.G.L. c. 21H, § 9 and the regulations promulgated thereunder at 310 CMR 40.0000
(the"Massachusetts Contingency Plan"or the"MCP' .
Lillian Hibbard-UAO-NE-05-3A003 Pae 2 of 6
5. Pertinent provision(s)of the Massachusetts Contingency Plan areas follows:
a) The Role of RPs. PRPs and Other Persons in Response Actions: 310 CMR 40.0170(5) states, in
part, that Responsible Parties ("RIs"),Potentially Responsible Parties ("PRPs"), and Other Persons
("OPs') shall perform each and every response action properly and promptly within deadlines
prescribed by,or pursuant to,M.G.L.c. 21 E and/or the MCP, including any Interim Deadlines.
b) 310 CMR 40.0100(1)states in part,the Department has final administrative authority and
discretion to determine any and all of the following:
(a) the appropriate extent and nature of a response action consistent with M.G.L.c. 21E
and 310 CMR 40.0000; and
(b) whether a response action,application, Opinion or other submittal is.in compliance
with M.G.L.c. 21 E, 310 CMR 40.0000 and other applicable requirements.
c) 310 CMR 40.0404(3)(4) and 40.0501(3) require RPs and.PRPs to submit a Tier Classification
Submittal or Response Action Outcome ("RAO') to DEP no later than one year after the date
DEP issues a NOR to the owner or Operator of a site specifying that that they are an RP or PRP'
for a release.
d) 310 CMR 40.0420 requires that Immediate Response Actions ("IRAs')be performed in response
to all releases and threats of release that require notification to DEP within two hours pursuant to
310 CMR 40.0311 and 310 CMR 40.0312. 310 CMR 40.0425 and 310 CMR 40.0427 require
persons conducting IRAs to submit an IRA Status Report and, if the IRA is complete, to submit
an IRA Completion Report.
IV. STATEMENT OF FACTS
6. Respondent is the owner of the Property,from or at which there is or has been a release and/or
threat of release of oil and/or hazardous material pursuant to M.G.L. c.2 1 E and the MCP.
7. On July 23,2002,a release of oil and/or hazardous materials as defined by M.G.L.c.21E section 5 and
the MCP was reported at the Site. DEP took soil samples from the Site and the samples contained
asbestos. The release was assigned Release Tracking Number(RTN)3-21960.
8. On August 8,2002,the Department issued a Notice of Responsibility to the AAA Modular Homes,
LLC.
9. On October 3,2002,AAA Modular Homes,LLC reported a 2-hour repotting condition associated
with asbestos on the Site in accordance with 310 CMR 40.0311.
10. On November 4,2003, the Department issued a Notice of Noncompliance ("NON)to AAA
Modular Homes,LLC,pursuant to M.G.L.c.21A, § 16 and 310 CMR 5.00. The NON required AAA
Modular Homes,LLC to Submit a Response Action Outcome Statement or a Tier Classification to
DEP within thirty(30)days of receiving the NON.
11. On March 12,2004,AAA Modular Homes, LLC conveyed the property to the Respondent.
12. On July 19,2004, the Department issued a NOR and a NON to Respondent,pursuant to M.G.L.c.
21A, § 16 and 310 CMR 5.00,requiring Respondent to submit an IRA Plan within twenty-one(2 1)
Lillian Hibbard-UAO-NE-05-3A003 Page 3 of 6
days of receiving the NOR/NON and a RAO or Tier Classification with four(4)months of receiving
the NOR/NON.
13. As of the date this Order, Respondent has not submitted the documents required by the NOR/NON.
V. STATEMENT OF DETERMINATIONS
Based upon the Statement of Facts set forth above in Section IV,the Department has determined
the following:
14. The Site is a disposal site as defined by M.G.L. c. 21E and the MCP. Conditions at the Site
constitute a release or threat of release to the environment of oil and/or hazardous material pursuant
to M.G.L. c.21E and the MCP.
15. Respondent is the owner of a property, at which there is or have been releases and/or threats of
release of oil and/or hazardous material pursuant to M.G.L.c. 2 1 E and the MCP.
16. Conditions at the Property pose a significant danger to the public health, safety,welfare or the
environment the Department therefore has authority to issue to any person described in M.G.L.c.
21 E §5 an Order requiring removal actions pursuant to M.G.L.c.21 E,§9 and consistent with the
Massachusetts Contingency Plan.
VI. ORDER
17. For the reasons and under the authority set forth in Sections III,IV,and V of this Order,the Department
hereby issues this Order to Respondent:
a. Within sixty (60) days of the effective date of this Order, through performance of an IRA or a
Release Abatement Measure or Phased Comprehensive Response Actions, Respondent shall
conduct such assessment,containment and/or removal as is necessary to achieve a condition of
No Significant Risk at the Property, in the Opinion of a Licensed Site Professional. Such
achievement shall be documented in a Partial Response Action Outcome (RAO-P) Statement
for the Property which meets the requirements of 310 CMR 40.1000.
18. Respondent shall provide notice of this Order to each contractor and subcontractor hired to conduct
Response Actions and to each person representing Respondent, including Licensed Site
Professionals.Notwithstanding the terms of any contract,Respondent is responsible for compliance
with this Order and for insuring that its contractors, subcontractors, consultants and agents comply
with this Order. A violation of the terms of this Order by any of Respondent's contractors,
subcontractors,consultants or agents is a violation of this Order by Respondent.
19. All submittals required pursuant to 310 CMR 40.0000 et seq. or this Order shall be in compliance
with the MCP, including without limitation any other applicable timelines and Performance
Standards. Failure to provide a submittal in compliance with this Order, the MCP, applicable
timelines and/or Performance Standards,shall constitute a violation of this Order by Respondent.
Lillian Hibbard-UAO-NE-05-3A003 Page 4 of 6
VII.NOTICE OF RIGHT TO REQUEST ADJUDICATORY HEARING
20. Respondents are hereby notified of its right to an adjudicatory hearing on this Order under the
provisions of M.Q.L.c. 30A and in accordance with 310 CMR 1.00 and 310 CMR 40.0050 within
twenty-one(2 1)days of the date of issuance of this UAO.
21. Any request by Respondents for a hearing on this Order must be sent to:
Docket Clerk
Department of Environmental Protection
Boz 4062.
Boston,Massachusetts 02211
by certified mail or hand-delivery.within twenty-one(2 1)days of the date of issuance of this Order.
A copy of the request shall be sent by certified mail or hand-delivered simultaneously to:
Stephen M. Johnson
Northeast Region
Department of Environmental Protection
One Winter Street
Boston,MA 02108
22. Any request by Respondent for a hearing on this Order,submitted pursuant to 310 CMR 40.0050,shall
state clearly and concisely the facts which are grounds for the proceeding, in what manner the person,in
whose name the request is made, is aggrieved and the remedy that is being sought The appropriate
filing fee required under 310 CMR 4.00 shall be sent to the Department in the manner required herein.
23. Pursuant to 310 CMR 40.0050(7),the filing of an appeal of this Order shall not prevent the Department
from issuing any future orders or taking any other action the Department reasonably deems necessary to
respond to a release or threat of release of oil or hazardous material,including,but not limited to,taking
or arranging one or more response actions at the Site.
VUL ADDITIONAL PROVISIONS
24. Nothing in this Order shall prevent the Department from requiring Respondent to take additional actions
beyond those required in this Order to comply with all applicable statutes and regulations. The
Department reserves the right to exercise the full extent of its legal authority in order to obtain full
compliance with all applicable requirements including but not limited to criminal prosecution, civil
action including court imposed civil penalties or administrative penalties imposed by the Department
25. Pursuant to M.G.L. c. 21E, § 11, in addition to costs incurred by the Commonwealth for the
investigation, assessment, containment and removal of a release or threat of release of oil or hazardous
material, should Respondent violate any provision of this Order, Respondent (a) shall be subject to a
civil penalty not to exceed twenty-five thousand dollars for each such violation;or(b)shall be punished
by a fine of not more than twenty-five thousand dollars, or by imprisonment for not more than two
years in a house of correction,or both,for each such violation.
26. Pursuant to M.G.L.c. 21E § 10(a), if Respondent fails to timely file an appeal of this Order, this Order
shall be deemed assented to and becomes effective twenty-one (21) days after the date of issuance of
this Order by Respondent If Respondent appeals this Order, the effective date will be established
pursuant to the terms and provisions of M.G.L.c.30A and 310 CMR 1.00.
Lillian Hibbard-UAO-NE-05-3A003 Page 5 of 6
27. The Department represents that the Regional Director has the authority to issue this Order on behalf
of the Department.
28. The Department may,on its own initiative or upon reasonable documented request from Respondent,
extend any deadline established in Section VI of this Order,by a written amendment hereto.
a. If Respondent has reason to know that any event has occurred or may occur which could cause
delay of performance hereunder, Respondent shall immediately notify the Department in
writing, specifying the cause for the delay. Respondent shall-submit to DEP a request in
writing stating the reason for missing the deadline, the measure or measures to be taken to
minimize the delay,and the proposed schedule for implementing those measures;
b. The decision as to whether the delaying event stated in a deadline extension request
submitted by Respondent is deemed sufficient to excuse noncompliance with a given
deadline is an enforcement decision to be made at the Department's sole discretion. The
Department shall notify Respondent in writing of the acceptance or rejection of any request to
extend a deadline;and
c. Should the Department not agree to extend a deadline extension request submitted by
Respondent,Respondent shall be in noncompliance with this Order.
29. Failure of the Department to complain of action or non-action on the part of Respondent shall not
constitute a waiver by the Department of any of its rights hereunder. Furthermore, no waiver by the
Department of any provision herein shall be construed as a waiver of any other provision herein.
30. If any term or provision of this Order,or the application thereof,to any person or circumstance,shall,to
any extent, be invalid or unenforceable, the remainder of this Order, and the application thereof, shall
not be affected thereby, and each remaining term and provision shall be valid and enforceable to the
extent permitted by law.
31. Each document submission required from Respondent by this Order shall be submitted to:
Stephen M. Johnson
Northeast Region
Department of Environmental Protection
One Winter Street
Boston,MA 02108
32. The submission(s)required by this Order shall be accompanied by any applicable feels).
Lillian Hibbard-UAO-NE-05-3A003 Pae 6 of 6
SO ORDERED:
DEPARTMENT OF ENVIRONMENTAL PROTECITON
By:
Edward'?.Kunce,No east Regional Director
One Winter Street
Boston,MA 02108
Date:
cc Data Entry/file(UAO)
COMMONWEALTH OF MASSACHUSETTS
Essex, ss.
Trial Court of the Commonwealth
District Court Department
Salem Division
Docket Number 0636 CR 3395
I
Commonwealth
Va.
Pam Pemuo,
Defendant
Pre Trial Order:
This matter was commenced by the Commonwealth's city of Salem on October 27,2006.The
City alleges tbat a vacant lot of land located 16 Scotia Street is in violation of applicable public
haft laws and regulations.
Facts briefly are established as follows:
The defendant is a successor in title to the premises which were contaminated by asbestos years
earlier
by a prior owner who operated a commercial business on the site.The property is now
zoned for residential use and occupancy.
The property sits high on a hill with other residential dwellings around it,some much lower m I
elevation. The site is serviced by the said Scotia Street and has public utilities available to it x
The site bas within recent years had soil disturbance upon it by prior owners and was the subject
of a stop work order issued by the Salem Buildmg Department after asbestos was detected on the
site.
The site currently bas no permits in place for its development,use or occupancy.
The premises are the subject of an administrative consent order with the Massachusetts
Department of Environmental Protection(see:RTN: 3.21960 and File#ACOP-NE-06-3A042.)
At this time,the premises are not in compliance with that outstanding consent order.
The Court took a view of the site on August 30,2007 with all parties in interest and their
respective legal counsel.
Based upon facts as found above,the following shall now be entered as a pre trial ORDER:
1. On or before October 26,2007, the defendant shall have cleared the site of the following
Z00/Too® E669 ZZ6 846 xVa WET nea LOOZ/5Z/01
-two-
Objectionable materials/conditioms:
a.All tall wee&growth as agreed to by defense counsel in open court and on site during the
Court's view;
b.All stray impervious plastic material,metals,discarded consumer items or wood on the site.
I
2. The defendant shall ma;main the pity fenced and posted as it currently exists;
3.The dd mdamt shall not disturb any earth,material or elevation on the site without an approved
site plan issued by the appropriate administrative office(es)of the city of Salem.
4.The defendant shall not direct any water nmoff from the site by artificial means unless said
" action is pursuant to an approved drainage plan issued by the appropriate administrative
office(es)of the city of Salem;
51 The defendant shall not maintain or permit any dumping on the property nor shall she make
any use or occupy it in violation of applicable municipal,state or federal law or regulations.
The defendant is encouraged by the Court on or before October 26,2007 to meet with municipal
and DEP officials to discuss a permitting process with benchmark deadlines for the proper
development use and occupancy of the site.
6. The Depatment of Environmental Pt oteenon shall forthwith commence amon(s)to bring the
defendant into compliance with the Administrative Consent Order currently outstanding on the
Prog,
Property.In so doinsaid Department shall pursue those remedies available to it pursuant to
G.L.Ch.21E.
The parties shall next appear before this Court on Friday,October 26,2007 at 9:00 a.m.for
purposes of either disposition of this case or to set the same down for trial.
All Until Further Order of the Court:
September 4,2007 Hon.Robert A. Cormetta,
Justice
zoo/zoom EsGr TZ6 8L6 xva BZ ;ET nsa LOOZ/SZ/Or
CRIMINAL COMPLAINT 10536CROO2852 Trial Court of Massachusetts
DEFENDANT Salem District Court
HIBBARD, LILLIAN
3 BELGRADE STREET
REVERE, MA 02151 TO ANY JUSTICE OR CLERK-MAGISTRATE
OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT I=YES
F U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth, on oath complains that on the date and at
the location stated herein the defendant did commit the
offense(s)listed below.
DATE OF OFFENSE PLACE OF OFFENSE
10/26/2004 SALEM �r_7/Ll
COMPLAINANT POLICE DEPARTMENT
SCOTT, JOANNE SALEM I# C:&/ C-9, �r �.>• '
DATE OF COMPLAINT RETURN,DATE AND TIME f,,,
08/2312005 09/2, 005 9:00 AM � �, ,,_;� � , ,, 10j .31
COUNT-OFFENSE
1. 666666 MISCELLANEOUS MUNIC ORDINANCE/BYLAW VIOL
on 10/26/2004 did MGL 111-S122-S123, in violation of FAIL TO COMPLY WITH BOARD OF HEALTH ORDER of the City or Town of SALEM.
COUNT-OFFENSE
COUNT-OFFENSE
COUNT-OFFENSE
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE COURT Salem District Court
Hon. Robert A. Cornetta ADDRESS 65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST.CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST:X
CRIMINAL COMPLAINT I 0536CR002851
Trial Court of Massachusetts �
DEFENDANT
S
Salem District Court
ORETO, JOSEPH
313 BEACH STREET
REVERE, MA 02151 TO ANY JUSTICE OR CLERK-MAGISTRATE
OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT EYES HAIR
M U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth, on oath complains that on the date and at
the location stated herein the defendant did commit the
DATE OF OFFENSE PLACE OF OFFENSE offense(s)listed below.
10/26/2004 SALEM
COMPLAINANT POLICE DEPARTMENT
SCOTT, JOANNE SALEM = GV . /C�.;� ;;Ur? V/or
DATE OF COMPLAINT RETURN DATE AND TIME': -'., .
08/23/2005 09/A2/2005 9:00 AM '--
COUNT-OFFENSE
1. 666666 MISCELLANEOUS MUNIC ORDINANCE/BYLAW VIOL
on 10/26/2004 did FAIL TO COMPLY WITH BOARD OF HEALTH ORDER, in violation of MGL 111-S122-S123 of the City or Town of SALEM.
COUNT-OFFENSE
COUNT-OFFENSE
COUNT-OFFENSE
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE COURT Salem District Court
Hon. Robert A. Cornetta ADDRESS 65 Washington Street
CLERK-MAGISTR
A TRUE ATE/ASST.CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST:X
CRIMINAL COMPLAINT 10536CROO2850
Trial Court of Massachusetts
DEFENDANT QII�I'
/wSalem District CourtHIBBARD, DANIEL
AAA MODULAR HOMES
507 MAIN STREET TO ANY JUSTICE OR CLERK-MAGISTRATE
SAUGUS, MA 01906 OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT EYES HAIR
M U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth, on oath complains that on the date and at
the location stated herein the defendant did commit the
offense(s) listed below.
DATE OF OFFENSE PLACE OF OFFENSE
10/24/2004 SALEM J /
COMPLAINANT POLICE DEPARTMENT �'�('
SCOTT, JOANNE SALEM W CAu•
DATE OF COMPLAINT RETURN DATE AND TIME 1f`
4
08/23/2005 09/23/2005 9:00 AM �';;,
COUNT-OFFENSE
1. 666666 MISCELLANEOUS MUNIC ORDINANCE/BYLAW VIOL
on 10/24/2004 did FAIL TO COMPY WITH BOARD OF HEALTH ORDER, in violation of MGL111-S122-5123 of the City or Town of SALEM.
COUNT-OFFENSE
COUNT-OFFENSE
COUNT-OFFENSE
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE COURT Salem District Court
Hon. Robert A. Cornetta ADDRESS 65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST. CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST:X
CRIMINAL COMPLAINT I 0636CR003385tx
Trial Court of Massachusetts
DEFENDANT Salem District Court
PERULLO, PAM
315 BEACH STREET
REVERE, MA 02151 TO ANY JUSTICE OR CLERK-MAGISTRATE
OF THE SALEM DISTRICT COURT
DATE OF BIRTH SEX RACE HEIGHT WEIGHT EYES HAIR
F U XXX XXX The undersigned complainant, on behalf of the
INCIDENT REPORT# SOCIAL SECURITY# Commonwealth,on oath complains that on the date and at
the location stated herein the defendant did commit the
offense(s) listed below.
DATE OF OFFENSE PLACE OF OFFENSE 1
06/30/2006 SALEM c 1 / 0 1 t�1 �a
COMPLAINANT POLICE DEPARTMENT , Z�. J� � t� I .301
SCOTT, JOANNE SALEM � CA/• �1'� �' p1
T RETURN DATE AND TIME cI ' qq [�i '" V
10/04/2006\ 10/27/2006 9:00 AM SURNIONS ,�
SE \\
1. 111/123 NUISANCE, FAIL ABATE PRIVATE HEALTH c111 §123
on 06/30/2006,being the owner or occupant of a private premises located at 3,4,5,6 SCOTIA STREET,SALEM, MA,did knowingly fail to obey an order of the
Board of Health of CITY OF SALEM BOARD OF HEALTH requiring him or her,at his or her own expense,to remove within a stated time one or more
nuisances,sources of filth or causes of sickness found thereon,in violation of G.L.c.111, §123. (PENALTY:forfeiture of not more than$1000 for every day
during which he or she knowingly violates such order;and§129:nuisance may be ordered removed or destroyed at defendant's expense and under direction
of the Board of Health.)
COUNT-OFFENSE
COUNT-OFFENSE -
COUNT-OFFENSE
COMPLAINANT SWORN TO BEFORE CLERK-MAGISTRATE ON(DATE) TOTAL COUNTS
X X 1
FIRST JUSTICE ICOURT Salem District Court
ADDRESS
Hon. Robert A. Cornetta 65 Washington Street
A TRUE CLERK-MAGISTRATE/ASST.CLERK ON(DATE) Salem, MA 01970
COPY
ATTEST:X
APPLICATION NO.(COURT USE ONLY) PAGE Trial Court of Massachusetts ^
of District Court Department
I,the uridersgrietl complainant, request that a criminal complaint issue against the accused charging the
offense(s) listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: Salem District Court
65 Washington Street
D ONLY MISDEMEANOR(S), I request a hearing D WITHOUT NOTICE because of an imminent threat of Salem. MA. 01970
D BODILY INJURY D COMMISSION OF A CRIME D FLIGHT D WITH NOTICE to accused.
D ONE OR MORE FELONIES, I request a hearing ❑ WITHOUT NOTICE ❑ WITH NOTICE to accused.
❑WARRANT is requested because prosecutor represents that accused may not appear unless arrested. ARREST STATUS OF ACCUSED
U HAS [!I HAS NOT been arrested
INFORMATION ABOUT
NAME(FIRST MI LAST)AND ADDRESS BIRTH DATE SOCIAL SECURITY NUMBER
PCF NO. MARITAL STATUS
DRIVERS LICENSE NO. STATE
' ''� ' r rL '1 =' l �' GENDER HEIGHT WEIGHT EVES
HAIR 'RACE COMPLEXION SCARS/MARKS/TATTOOS BIRTH STATE OR COUNTRY DAV PHONE
EMPLOYER/SCHOOL MOTHER'S MAIDEN NAME(FIRST MI LAST) FATHER'S NAME(FIRST MI LAST)
i I
CASE
i
INFORMATION
COMPLAINANT NAME(FIRST MI LAST) COMPLAINANT TYPE PD
D POLICE D CITIZEN D OTHER
ADDRESS _ PLACE OF OFFENSE
INCIDENT REPORT NO. OBTN
CITATION NO(S).
OFFENSE CODE DESCRIPTION OFFENSE DATE
1 C.r/__ ��%
VARIABLES(e.g. victim name,controlled substance, type and value of property.other variable information;see Complaint Language Manual)
OFFENSE CODE DESCRIPTION OFFENSE DATE
2 VARIABLES
OFFENSE CODE DESCRIPTION OFFENSE DATE
3 VARIABLES
REMARKS COMPLAINANT'S SIGNATURE DATE FILED
COURT USE ONLY A HEARING UPON THIS COMPLAINTAPPLICATION , TIMES HEARING ,COURT USE ONLY
WILL BE HELD AT THE ABOVE COURT ADD4, E
i
DCCR-2(011001)
/`(111•fDi giAiAAI•T+C
,i APPLICATION FOR APPLICATION iVO. (COURT USE ONLY) PAGE Trial Cort of Massachusetts .
i; CRIMINAL COMPLAINT of District Court Department
I, the undersigned complainant, request that a criminal complaint issue against the accused charging the District IStrICt COurt
/ offense(s)listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: Salem
Washington Street
D ONLY MISDEMEANOR(S), I request a hearing D WITHOUT NOTICE because of an imminent threat of Salem. MA.01970
D BODILY INJURY D COMMISSION OF A CRIME Q FLIGHT D WITH NOTICE to accused.
D ONE OR MORE FELONIES, I request a hearing.,❑ WITHOUT NOTICE D WITH NOTICE to accused.
ARREST STATUS OF ACCUSED
ElWARRANT is requested because prosecutor represents that accused may not appear unless arrested. ❑ HAS D HAS NOT been arrested
INFORMATION ABOUT
NAME(FIRST MI LAST)AND ADDRESS BIRTH DATE SOCIAL SECURITY NUMBER
i If I I G rt /-/r L;GiG PCF NO_
MARITAL STATUS
Z. I jrhL(r-I
DRIVERS LICENSE NO. STATE
1( u..•f'p 1
GENDER HEIGHT WEIGHT EYES
HAIR RACE COMPLEXION SCARS/MARKsrrATTOOS BIRTH STATE OR COUNTRY i DAY PHONE
EMPLOYER/SCHOOL I MOTHER'S MAIDEN NAME(FIRST MI LAST) FATHER'S NAME(FIRST MI LAST)
CASE INFORMATION
COMPLAINANT NAME(FIRST Mi LAST) COMPLAINANT TYPE PD
(,'I AI �',vt :'_ r� Ol /F// /j ❑ POLICE ❑ CITIZEN ❑ OTHER
ADDRESS PLACE OF OFFENSE
q Iti
INCIDENT REPORT NO. OBTN
CITATION NO(S).
OFFENSE CODE DESCRIPTION OFFENSE DATE
/v1 Cr! Ilt � a r�� 3 /b,i/�, D�,/�� /,,-�;__f'Y / • �(�f.
1 VARIABLES(e.g. victim name,controlled substance,type and value of property other variable•information;see Complaint Language Manual)
OFFENSE CODE DESCRIPTION OFFENSE DATE
2 VARIABLES
OFFENSE CODE DESCRIPTION OFFENSE DATE
3 VARIABLES
REMARKSCOMPLAINANTS SIGNATURE DATE FILED
ti
COURT USE ONLY A HEARING UPON THIS COMPLAINT APPLICATION DOE OF HEARINGjlfyfE,QFHE IN - COURT USE ONLY
1 WILL BE HELD AT THE ABOVE COURT ADDRESS ON J AT
r r.
DCCR-2(01194) - i 11RADi A FNIANTIC rnl)V
APPLICATION FOR APPLICATION NO. (COURT USE ONLY) PAGE Trial Court of Massachusetts
j CRIMINAL COMPLAINT of District Court Department
I,the undersigned complainant, request that a criminal complaint issue against the accused charging the
offense(s) listed below. If the accused HAS NOT BEEN ARRESTED and the charges involve: Salem District Court
85 Washington Street
❑ONLY MISDEMEANOR(S), I request a hearing ❑ WITHOUT NOTICE because of an imminent threat of Salem. MA 01970
❑ BODILY INJURY ❑ COMMISSION OF A CRIME ❑ FLIGHT ❑ WITH NOTICE to accused.-
❑ONE OR MORE FELONIES, I request a hearing,LJ WITHOUT NOTICE ❑ WITH NOTICE to accused.
❑WARRANT is requested because prosecutor represents that accused may not appear unless arrested. ARREST STATUS OF ACCUSED
❑ HAS ❑ HAS NOT been arrested
OR • BOUT
NAME(FIRST MI LAST)AND ADDRESS BIRTH DATE SOCIAL SECURITY NUMBER
PCF NO. MARITAL STATUS
DRIVERS LICENSE NO. STATE
GENDER HEIGHT WEIGHT EYES
HAIR RACE COMPLEXION SCARS/MARKS/TATTOOS BIRTH STATE OR COUNTRY DAY PHONE
i
EMPLOYER/SCHOOL MOTHER'S MAIDEN NAME(FIRST MI LAST) FATHER'S NAME(FIRST MI LAST)
INFORMATIONCASE
COMPLAINANT NAME(FIRST MI LAST) COMPLAINANT TYPE PD
n, ❑ POLICE ❑ CITIZEN ❑ OTHER
ADDRESS PLACE OF OFFENSE
/:-) INCIDENT REPORT NO. OBTN
CITATION NO(S).
OFFENSE CODE + ; DESCRIPTION OFFENSE DATE
t-
1 /-�,: Il , Ir Chi R��. O- i .:-/ In . Lr J•
VARIABLES(e.g. victim name,controlled substance,type and value of property.other variable mlomration;see Complaint Language Manual)
OFFENSE CODE DESCRIPTION OFFENSE DATE
2 VARIABLES
OFFENSE CODE DESCRIPTION OFFENSE DATE
3 VARIABLES
REMARKS C MPLAINANT'S SIGNATURE DATE FILED
COURT USE ONLY A HEARING UPON THIS COMPLAINT APPLICATION l .ATE OF;AEARIN TIME OF H RIN COURT USE ONLY
WILL BE HELD AT THE ABOVE COURT ADDRESS ON J „fes' Com, �g7 -1'�i t
DCCR-2(0604)
s
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
File No.: UAO-NE-05-3A003
IN THE MATTER OF: )
LILLIAN HIBBARD )
Salem—RTN 3-21960 )
16 Scotia Street )
APPEAL OF UAO AND CLAIM FOR ADJUDICATORY HEARING
I. INTRODUCTION
This matter involves the appeal by Lillian Hibbard ("Hibbard"or the "Petitioner")of a
Unilateral Administrative Order("UAO")issued by the Department of Environmental Protection
(the"Department")to the Petitioner for the alleged noncompliance with the Massachusetts
Contingency Plan ("MCP") in connection with two (2) lots owned at Scotia Street, Salem,
Massachusetts (the "Property"). The UAO is dated April 8,2005. The Petitioner states that
several of the stated facts are incorrect and that the Department cannot provide evidence to
support some of its claims. Petitioner is aggrieved by the Order.
Petitioner requests this Court to dismiss the UAO because the Property is now in
compliance with the MCP. A copy of the UAO is attached.
II. BACKGROUND
This matter involves four (4) vacant lots located at 16 Scotia Street, Salem,
Massachusetts. Petitioner is the record owner of two lots, 5 and 6.
Prior to the purchase of the lots, the Department alleges that a release of oil or hazardous
materials had been reported in July 2002 to the Department. The release involved the presence
d
of asbestos from old bricks and chimney debris from a former owner. Petitioner states that she
did not file notice of the alleged release and that she was not responsible for the release.
A further Immediate Response Action Plan for the asbestos on the Property was filed by
AAA Modular Homes, LLC in October 2002 according to the Department.
The Department alleges that it sent a Notice of Noncompliance ("NON")to Petitioner
requiring the submission of documents pursuant to the MCP in 2004 and that the documents
requested have not been filed.
III. THE UAO
On or about April 8, 2005, the Department issued a Unilateral Administrative Order(the
"UAO")alleging that Petitioner was out of compliance with the MCP and ordering an IRA or
other filing within sixty(60) days of the Order demonstrating no significant risk.
The UAO states that Petitioner is in violation of the MCP at the Property and must
contain or remove the asbestos to comply with the MCP and the Order.
IV. REASONS FOR APPEAL
The Petitioner files this claim for Adjudicatory Hearing based upon the following reasons
for her aggrievement.
a) Petitioner disagrees with the Department's requirements for the Order; and
b) Petitioner took possession of the Property approximately one (1) year ago and
believes that steps have been taken to bring the Property into compliance with the
MCP; and
C) The Property was not contaminated by the Petitioner; and
d) The Department has not demonstrated that the condition of the Property violates
the Department's asbestos policy; and
'Ile UAO was dated Friday,April 8,2005. The UAO was received after April 1],2005.
-2-
e) Petitioner has not caused the alleged violation; and
f) Petitioner believes that an LSP has prepared the documents and submitted them to
the Department as required by the Order; and
g) Petitioner's counsel attempted to settle this matter in good faith and Petitioner has
cooperated; and
i) The Property is secure from a public health or safety threat.
REQUEST FOR RELIEF
1. That Petitioner should not be required or ordered to comply with the requirements
of the UAO that are in excess of the MCP;
2. That the Court finds that the Petitioner is not in violation of the MCP;
3. That the Court find that the Department has not met its burden of proof; and
4. Petitioner reserves the right to add other defenses.
LILLIAN HIBBARD
By Her Attorney,
t is
Richard A. Nylen, Jr., sq.
Lynch,DeSimone& LP
12 Post Office Square, Suite 600
Boston,MA 02109
Tel: (617) 348-4500
Fax: (617)348-4545
Dated: April 28, 2005
HAAAA C1imbm\DEPUi11i.1Ebbard-UA0-NE-05-3A003\DocsVppcW ofUAO.doc
-3-
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET, BOSTON, MA 02108 617-292-6500
MITT ROMNEY ELLEN ROY HERZFELDER
Governor Secretary
KERRY HEALEY ROBERT W.GOLLEDGE,Jr.
Lieutenant Governor Commissioner
April 8, 2005
VIA FIRST CLASS AND
CERTIFIED MAIL#7003 3110 0001 6105 7090
Lillian Hibbard
3 Belgrade Street
Revere, MA 02151
RE: UNILATERAL ADMINISTRATIVE ORDER
UAO-NE-05-3A003
16 Scotia Street, Salem,MA
THIS IS AN IMPORTANT NOTICE. FAILURE TO RESPOND TO THIS NOTICE COULD
RESULT IN SERIOUS LEGAL CONSEQUENCES.
Enclosed is a Unilateral Administrative Order ("Order") requiring you to conduct
response actions at the location referenced above.
The reasons for issuing this Order and your right to appeal are explained in the attached
Order. Please read this Order carefully. Failure to take adequate action in response to it will
result in serious legal consequences.
Please contact Paegan Deering at(617) 654-6660 if you have any questions.
Yours truly,
ward Kunce��
Northeast Regional Director
This information is available In alternate format.Call Aprd McCabe,ADA Coordinator at 1.617556-1171.TD6 Service-1-800.29&3207.
DEP on the World Wide Web: httpJA~.m .gov/dep
Q Printed on Recyded Paper -
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
RE: Salem-RTN 3-21960
IN THE MATTER OF: ) 16 Scotia Street
Lillian Hibbard ) UNILATERAL ADMINISTRATIVE ORDER
UAO-NE-05-3A003
I. THE PARTIES
1. The Department of Environmental Protection(the"Department" or"DEP' is a duly constituted
agency of the Commonwealth of Massachusetts. Its principal office is located at One Winter Street
in Boston,Massachusetts 02108.
2. Lillian Hibbard,3 Belgrade Street,Revere is the current owner of Lots 5 and 6 and the private
street abutting the lots on a plan recorded with the Essex(So.Dist.)Registry of Deeds Book 4749,
Page 1 and described in the Quitclaim deed to Lillian Hibbard recorded with the Essex(So.Dist)
Registry of Deeds Book 22508 Page 559. Lillian Hibbard is hereinafter referred to as
"Respondent".
H.DEFINITIONS
3. Unless otherwise indicated,the terms used herein shall have the meaning given to them by the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act,M.G.L.c.2 1 E
("M.G.L.c.21E'),and the regulations promulgated thereunder as the Massachusetts Contingency Plan
("MCP'),310 CMR 40.0000 et M. In addition,the following term(s)shall have the meaning defined
herein:
Site:shall mean the properties located at 16 Scotia Street,Salem,MA and any other place or area
where the release(s)of oil or hazardous material(s)at and/or from said properties has come to be
located.
Property:shall mean Lots 5 and 6 and the private street abutting the lots on a plan recorded with.
the Essex(So.Dist.)Registry of Deeds Book 4749,Page 1 and described in the Quitclaim deed to
Lillian Hibbard recorded with the Essex(So._Dist)Deeds Book 22508 Page 559.The Property
located at 16 Scotia Street comprises a portion of the site.
M. STATEMENT OF LAW
4. The Department's authority to issue this Unilateral Administrative Order ("UAO or Order's is
conferred by M.G.L: c. 21E, § 9 and the regulations promulgated thereunder at 310 CMR 40.0000
(the"Massachusetts Contingency Plan"or the"MCP'j.
Lillian Hibbard-UAO-NE-05-3A003 Page 2 of 6
5. Pertinent provision(s)of the Massachusetts Contingency Plan are as follows:
a) The Role of RPs PRFs and Other Persons in Response Actions: 310 CMR 40.0170(5) states, in
part, that Responsible Parties ("RPs"),,Potentially Responsible Parties ("PRPs'j, and Other Persons
("OPs') shall perform each and every response action properly and promptly within deadlines
prescribed by,or pursuant to,M.G.L.c.2 1 E and/or the MCP,including any Interim Deadlines.
b) 310 CMR 40.0100(1)states in part,the Department has final administrative authority and
discretion to determine any and all of the following:
(a) the appropriate extent and nature of a response action consistent with M.G.L. c.2,113
and 310 CMR 40.0000;and
(b) whether a response action,application, Opinion or other submittal is.in compliance
with M.G.L.c.21 E, 310 CMR 40.0000 and other applicable requirements.
c) 310 CMR 40.0404(3)(4) and 40.0501(3) require RPs and.PRPs to submit a Tier Classification
Submittal or Response Action Outcome ("RAO') to DEP no later than one year after the date
DEP issues a NOR to the owner or Operator of a site specifying that that they are an RP or PRP'
for a release.
d) 310 CMR 40.0420 requires that Immediate Response Actions ("IRAs')be performed in response
to all releases and threats of release that require notification to DEP within two hours pursuant to
310 CMR 40.0311 and 310 CMR 40.0312. 310 CMR 40.0425 and 310 CMR 40.0427 require
persons conducting IRAs to submit an IRA Status Report and, if the IRA is complete, to submit
an IRA Completion Report.
IV. STATEMENT OF FACTS
6. Respondent is the owner of the Property,from or at which there is or has been a release and/or
threat of release of oil and/or hazardous material pursuant to M.G.L.c.21 E and the MCP.
7. On July 23,2002,a release of oil and/or hazardous materials as defined by M.G.L.c.21 E section 5 and
the MCP was reported at the Site. DEP took soil samples from the Site and the samples contained
asbestos. The release was assigned Release Tracldng Number(RTN)3-21960.
8. On August 8,2002,the Department issued a Notice of Responsibility to the AAA Modular Homes,
LLC.
9. On October 3,2002,AAA Modular Homes,LLC reported a 2-hour reporting condition associated
with asbestos on the Site in accordance with 310 CMR 40.0311.
10. On November 4,2003,the Department issued a Notice of Noncompliance ("NON)to AAA
Modular Homes,LLC,pursuant to M.G.L.c.21A, § 16 and 310 CMR 5.00. The NON required AAA
Modular Homes,LLC to Submit a Response Action Outcome Statement or a Tier Classification to
DEP within thirty(30)days of receiving the NON.
11. On March 12,2004,AAA Modular Homes,LLC conveyed the property to the Respondent.
12. On July 19,2004,the Department issued a NOR and a NON to Respondent,pursuant to M.G.L.c.
21A,§ 16 and 310 CMR 5.00,requiring Respondent to submit an IRA Plan within twenty-one(21)
Lillian Hibbard UAO NE 05 3A003 Paee 3 of 6
days of receiving the NOR/NON and a RAO or Tier Classification with four(4)months of receiving
the NOR/NON.
13. As of the date this Order,Respondent has not submitted the documents required by the NOR/NON.
V. STATEMENT OF DETERMINATIONS
Based upon the Statement of Facts set forth above in Section fV,the Department has determined
the following:
14. The Site is a disposal site as defined by M.G.L. c. 21E and the MCP. Conditions at the Site
constitute a release or threat of release to the environment of oil and/or hazardous material pursuant
to M.G.L.c.21E and the MCP.
15. Respondent is the owner of a property, at which there is or have been releases and/or threats of
release of oil and/or hazardous material pursuant to M.G.L. c.21E and the MCP.
16. Conditions at the Property pose a significant danger to the public health, safety,welfare or the
environment the Department therefore has authority to issue to any person described in M.G.L. c.
21 E § 5 an Order requiring removal actions pursuant to M.G.L.c.21E, §9 and consistent with the
Massachusetts Contingency Plan.
VI.ORDER
17. For the reasons and under the authority set forth in Sections III,IV,and V of this Order,the Department
hereby issues this Order to Respondent:
a. Within sixty (60) days of the effective date of this Order, through performance of an IRA or a
Release Abatement Measure or Phased Comprehensive Response Actions, Respondent shall
conduct such assessment,containment and/or removal as is necessary to achieve a condition of
No Significant Risk at the Property, in the Opinion of a Licensed Site Professional. Such
achievement shall be documented in a Partial Response Action Outcome (RAO-P) Statement
for the Property which meets the requirements of 310 CMR 40.1000.
18. Respondent shall provide notice of this Order to each contractor and subcontractor hired to conduct
Response Actions and to each person representing Respondent, including Licensed Site
Professionals.Notwithstanding the terms of any contract, Respondent is responsible for compliance
with this Order and for insuring that its contractors, subcontractors, consultants and agents comply
with this Order. A violation of the terms of this Order by any of Respondent's contractors,
subcontractors,consultants or agents is a violation of this Order by Respondent.
19. All submittals required pursuant to 310 CMR 40.0000 et seg. or this Order shall be in compliance
with the MCP, including without limitation any other applicable timelines and Performance
Standards. Failure to provide a submittal in compliance with this Order, the MCP, applicable
timelines and/or Performance Standards,shall constitute a violation of this Order by Respondent.
s
Lillian Hibbard-UAO-NE-05-3A003 Paee 4 of 6
VII.NOTICE OF RIGHT TO REQUEST ADJUDICATORY HEARING
20. Respondents are hereby notified of its right to an adjudicatory hearing on this Order under the
provisions of M.Q.L.c. 30A and in accordance with 310 CMR 1.00 and 310 CMR 40.0050 within
twenty-one(21) days of the date of issuance of this UAO.
21. Any request by Respondents for a hearing on this Order must be sent to:
Docket Clerk
Department of Environmental Protection
Box 4062.
Boston,Massachusetts 02211
by certified mail or hand-delivery.within twenty-one(21) days of the date of issuance of this Order.
A copy of the request shall be sent by certified mail or hand-delivered simultaneously to:
Stephen M.Johnson
Northeast Region
Department of Environmental Protection
One Winter Street
Boston,MA 02108
22. Any request by Respondent for a hearing on this Order,submitted pursuant to 310 CMR 40.0050,shall
state clearly and concisely the facts which are grounds for the proceeding,in what manner the person,in
whose name the request is made, is aggrieved and the remedy that is being sought. The appropriate
filing fee required under 310 CMR 4.00 shall be sent to the Department in the manner required herein.
23. Pursuant to 310 CMR 40.0050(7),the filing of an appeal of this Order shall not prevent the Department
from issuing any future orders or taking any other action the Department reasonably deems necessary to
respond to a release or threat of release of oil or hazardous material,including,but not limited to,taking
or arranging one or more response actions at the Site.
VIII. ADDITIONAL PROVISIONS
24. Nothing in this Order shall prevent the Department from requiring Respondent to take additional actions
beyond those required in this Order to comply with all applicable statutes and regulations. The
Department reserves the right to exercise the full extent of its legal authority in order to obtain full
compliance with all applicable requirements including but not limited to criminal prosecution, civil
action including court imposed civil penalties or administrative penalties imposed by the Department
25. Pursuant to M.G.L. c. 2113, § 11, in addition to costs incurred by the Commonwealth for the
investigation, assessment,containment and removal of a release or threat of release of oil or hazardous
material, should Respondent violate any provision of this Order, Respondent (a) shall be subject to a
civil penalty not to exceed twenty-five thousand dollars for each such violation;or(b)shall be punished
by a fine of not more than twenty-five thousand dollars, or by imprisonment for not more than two
years in a house of correction,or both,for each such violation.
26. Pursuant to M.G.L.c. 21E § 10(a), if Respondent fails to timely file an appeal of this Order, this Order
shall be deemed assented to and becomes effective twenty-one (21) days after the date of issuance of
this Order by Respondent If Respondent appeals this Order, the effective date will be established
pursuant to the terms and provisions of M.G.L.c.30A and 310 CMR 1.00.
Lillian Hibbard UAO NE 05 3A003 Pa¢e 5 of 6
27. The Department represents that the Regional Director has the authority to issue this Order on behalf
of the Department.
28. The Department may,on its own initiative or upon reasonable documented request from Respondent,
extend any deadline established in Section VI of this Order,by a written amendment hereto.
a. If Respondent has reason to know that any event has occurred or may occur which could cause
delay of performance hereunder, Respondent shall immediately notify the Department in
writing, specifying the cause for the delay. Respondent sball-submit to DEP a request in
writing stating the reason for missing the deadline, the measure or measures to be taken to
minimize the delay, and the proposed schedule for implementing those measures;
b. The decision as to whether the delaying event stated in a deadline extension request
submitted by Respondent is deemed sufficient to excuse noncompliance with a given
deadline is an enforcement decision to be made at the Department's sole discretion. The
Department shall notify Respondent in writing of the acceptance or rejection of any request to
extend a deadline;and
c. Should the Department not agree to extend a deadline extension request submitted by
Respondent,Respondent shall be in noncompliance with this Order.
29. Failure of the Department to complain of action or non-action on the part of Respondent shall not
constitute a waiver by the Department of any of its rights hereunder. Furthermore, no waiver by the
Department of any provision herein shall be construed as a waiver of any other provision herein.
30. If any term or provision of this Order,or the application thereof,to any person or circumstance,shall,to
any extent,be invalid or unenforceable, the remainder of this Order, and the application thereof, shall
not be affected thereby, and each remaining term and provision shall be valid and enforceable to the
extent permitted by law.
31. Each document submission required from Respondent by this Order shall be submitted to:
Stephen M. Johnson
Northeast Region
Department of Environmental Protection
One Winter Street
Boston,MA 02108
32. The submission(s)required by this Order shall be accompanied by any applicable fee(s).
LillianHibbard UAO NR 05 3A009 Peke 6 of6
SO ORDERED:
DEPARTMENT OF ENVIRONMENTAL PROTECTION
By:
Edwaz .Kunce,No east Regional Director
One Winter Street
Boston,MA 02108
Date: R r
cc Data Entry/file(UAO)
COMMONWEALTH OF MASSACHUSETTS
Essex,ss.
Trial Court of the Commonwealth
District Court Department
Salem Division
Docket Number 0636 CR 3395
Commonwealth
VS.
Pam Perullo,
Defendant
Pre Trial Order:
This matter was commenced by the Commonwealth's city of Salem on October 27,2006. The
city alleges that a vacant lot of land located 16 Scotia Street is in violation of applicable public
health laws and regulations.
Facts briefly are established as follows:
The defendant is a successor in title to the premises which were contaminated by asbestos years
earlier a prior owner who operated a commercial business on the site. The r
by p para property is now
zoned for residential use and occupancy.
The property sits high on a hill with other residential dwellings around it,some much lower in
elevation.The site is serviced by the said Scotia Street and has public utilities available to it.
The site has within recent years had soil disturbance upon it by prior owners and was the subject
of a stop work order issued by the Salem Building Department after asbestos was detected on the
site.
The site currently has no permits in place for its development,use or occupancy.
The premises are the subject of an administrative consent order with the Massachusetts
Department of Environmental Protection(see:RTN: 3.21960 and File 0 ACOP-NE-06-3A042.)
At this time,the premises are not in compliance with that outstanding consent order.
The Court took a view of the site on August 30,2007 with all parties in interest and their
respective legal counsel.
Based upon facts as found above,the following shall now be entered as a pre trial ORDER:
1. On or before October 26,2007,the defendant shall have cleared the site of the following
Zoo/loop EAB9 TZ6 9L6 xed 9Z ;Ei net LOOZ/5Z/01
-two-
objectionable materials/conditions:
a.All tall weeds/growth as agreed to by defense counsel in open court and on site during the
Court's view;
b. All stray impervious plastic material,metals,discarded consumer items or wood on the site.
I
2. The defendant shall maintain the property fenced and posted as it currently exists;
3.The defendant shall not disturb any earth,material or elevation on the site without an approved
site plan issued by the appropriate administrative office(es)of the city of Salem.
4.The defendant shall not direct any water runoff from the site by artificial means unless said
" action is pursuant to an approved drainage plan issued by the appropriate administrative
office(es)of the city of Salem;
5'The defendant shall not maintain or permit any dumping on the property nor shall she make
any use or occupy it in violation of applicable municipal,state or federal law or regulations.
The defendant is encouraged by the Court on or before October 26,2007 to meet with municipal
and DEP officials to discuss a permitting process with benchmark deadlines for the proper
development use and occupancy of the site.
6.The Department of Environmental Protection shall forthwith commence acdon(s)to ming the
defendant into compliance with the Administrative Consent Order currently outstanding on the
property. In so doing,said Department shall pursue those remedies available to it pursuant to
G.L.Ch.21E.
The parties shall next appear before this Court on Friday,October 26,2007 at 9:00 am. for
purposes of either disposition of this case or to set the same down for trial.
All Until Further Order of the Court:
September 4,2007 Hon_Robert A. Cometta,
Justice
Zoo/Zoom mr iz6 s46 xve 9Z ;Ei nas Looz/SZ/oi
MACCALLUM&SIMEONE,P.A. .
ATTORNEYS AT LAW
THE CITIZENS BANK BUILDING
385 BROADWAY,P.O.BOX 321
REVERE,MASSACHUSETTS 02151
BERNARD 1.MACCALLUM TELEPHONE:(781)286-1560
LAWRENCE A.SIMEONE,JR. FACSIMILE:(781)286.5532
it
April 20, 2005
NEIGHBORHOOD MEETING NOTICE
Dear Abutter:
Please be advised that there will be a neighborhood meeting to discuss the proposed four
(4) lot subdivision located at the end of Scotia Street, Salem,Massachusetts.
DATE: Saturday,May 7,2005
TIME: 10:00 A.M.
LOCATION: End of Scotia Street
Salem, MA
Should you have any question please call:
The Law Offices Of MacCallum & Simeone P.A.
(781) 286-1560
cc: City Council Members
Board of Health
Building Department
/ HYDROTERRA ENVIRONMENTAL SERVICES
272 Dover Point Road Dover, 03820
Phonee(603)743x728-Fax(603))742-3433
Email-hydroterroaaol.cwm
Mr. John Mac Auley August 12, 2002
MADEP
205A Lowell Street
Wilmington, MA 01887
RE: Revised Initial (Stage 1) Immediate Response Action (IRA) Scope of Work for
Assessment of Asbestos at the Property Located on Scotia Street in Salem,
Massachusetts (MADEP RTN 3-21960)
Dear Mr.Mac Auley;
On behalf of Dan Hibbard (property owner of 16 Scotia Street), HYDROTERRA Environmental
Services(HYDROTERRA)is pleased to submit this revised Scope of Work for the initial assessment
of asbestos at the property located at 16 Scotia Street in Salem MA (the Subject Property). This
work is to be competed under an Immediate Response Action (IRA) in accordance with the
Massachusetts Contingency Plan(MCP) 310 CMR 40.0420. A comprehensive IRA Plan detailing
removal actions and compliance with the MCP will be submitted upon completion of the initial
assessment work. .
PROJECT UNDERSTANDING
On July 23, 2002, the Massachusetts Department of Environmental Protection(MADEP) issued-a
Notice of Responsibility(NOR)regarding the presence of asbestos on the property lot located at 16
Scotia Street in Salem, MA. The asbestos was encountered on the property during the excavation
of the building and is believed to be associated with burial of old chimney liners and rubble on the
property.. The MADEP requires that an IRA be performed on the property to eliminate, abate, or
mitigate the asbestos release.
Based upon our inspection of the site and discussion with John Mac Auley of the MADEP, the first
step for the site is to assess the extent and magnitude of the release of asbestos. Step 2 involves
preparation of an IRA plan for the cleanup of the asbestos. Based upon discussion with MADEP,
HYDROTERRA has prepared the following scope of work to complete the initial step of asbestos
assessment of the property.
The following scope of work is based on the requirements of the MCP (3 10 CMR 40.0000) and the
need to characterize and delineate asbestos within the fill material encountered on the Subject
Property.
Revised Scope of Workfar the Initial Asbestos Assessment at 16 Scotia Street,Salem MA — MADEP RTN 9 3-2/960
;fYDROTERRA Environmental Services Pg.2
Proposed Scope of Work
1. Surface Soil Sampling;,A sampling grid will be prepared for the site and HYDROTERRA and its
asbestos consultant ATC will collect soil samples from each grid location and at different soil depths
as determined necessary during the sampling process. The grid interval size will be approximately
10 feet but may change due to site conditions and/or MADEP requirements. If possible (providing
access to abutting properties) the sampling grid will be extended to abutting properties in the area
immediately adjacent to the release area. All areas to be sampled will be wetted down before, during
and after the sampling. The release area will be recovered with polyethylene sheeting after the
completion of each sampling day.
2. Test Pitting: HYDROTERRA and its asbestos consultant ATC will observe the excavation of up
to six(6)test pits to characterize the subsurface soils. The test pits will be extended to a maximum
depth of 6 feet below ground surface or into clean soils. Excavation of the pits will be performed by
asbestos trained personnel. All area test pit locations will be wetted down before, during and after
the excavation sampling. Soil samples will be collected at 6 inches, 1-3', and 3-6' from the test pits
for visual inspection and classification in the field by a HYDROTERRA geologist. A Massachusetts-
licensed Asbestos Inspector will collect asbestos bulk samples of suspect debris and soil samples at
the 6 inches, 14,and 3-6intervals or as requested by MADEP. The pits will be backfilled daily and
the release area will be recovered with polyethylene sheeting after the completion of each sampling
day.
3.Air Monitoring` ATC will collect asbestos background air samples from the site during test pit
excavation or as otherwise directed by the MADEP. The purpose of the air sampling is to determine
if elevated levels of airborne asbestos have occurred as a result of disturbing of asbestos-contaminated
soil during excavation. A total of 20 air samples, including 2 blanks, will be collected at locations
agreed upon between ATC, HYDROTERRA and the MADER All air samples will be analyzed by
Phase Contrast Microscopy (PCM) in accordance with analytical procedures established by the
NIOSH 7400 method. The limit of detection of this method of analysis is 5.5 fibers/100 fields.
4. Asbestos Analysis: All bulk and soil samples collected will be submitted to a certified asbestos
Laboratory for analysis based on 3-day turnaround. All bulk samples will be analyzed in accordance
with analytical procedures established by the Polarized Light Microscopy with Dispersion Staining
(PLM/DS)method,which allows for the identification of the specific type of asbestos fibers present
and gives an accurate percentage of asbestos present in the sample. The laboratory is certified by the
EPA and the Commonwealth of Massachusetts for the analysis of all types of asbestos samples. It
is anticipated that 40 bulk samples and 100 soil samples will be collected during this survey.
5 Personnel Protection and Decontamination. All sampling personnel will wear half-face respiratory
protection and coveralls during the sample collection. A wash station will be set up for worker and
sampling tool decontamination The excavation equipment will also be decontaminated using water.
The excavation equipment will be placed on a bermed poly lining to prevent runoff of water to the
site. The decon water will be filtered with a five-micon filter prior to release to the site.
Revised Scope ofWorkfor the Initial Asbestos Assessment at 16 Scotia Street,Salem MA -- MADEP RTN# 3-21960
`NYDROTERRA Environmental Services P,3
Data Reduction and Analysis: HYDROTERRA will evaluate the data, and compile figures, tables,
and graphs as required by 310 CMR 40.0420.
7 IRA Stage 1 Completion Report and Stage 2 IRA Plan: HYDROTERRA will prepare an IRA
Stage 1 Completion Report to be submitted to MADEP. The report will describe all assessment
activities performed and a summary of all findings and laboratory results. This report will provide
conclusions and recommendations regarding the results and the presence of asbestos, if any, in
suspect debris or soil sampled. In addition to the Stage 1 report,HYDROTERRA will prepare an
IRA Plan for the removal actions, if required. This IRA Plan will be submitted to MADEP and will
describe in detail how the asbestos will be removed from the property.
Please feel free to call me at(603) 743-5728 if you have any questions regarding this Scope of Work
or assessment of the Subject Property.
\ cerely,
J i M. McKenna, PG, LSP
` 1�¢anager
Revised Scope of Work for the Initial Asbestos Assessment at 16 Scotia Street,Salem MA — MADEP RTN# 3-21960
HYDROTERRA EnSITE SKETCHvironmental Services - 16 SCOTIA STREET
CO
OBrien
1
1 1 Lot 4
-o
XT 0X
0
i Existing Soil
- � ¢ Piles
Boldul Observed Brick;X °�. Dowling
Fill Material
Un
Lot 5
-
0
Steedman ;
observed Lot 3
Chimney
Liners
X Existing
Lot 6oundat�on Marsell
Butler SUBJECT P90PERTY Hole
Proposed Decon ;
Area.,--- B f 1 1
Paskowsky
NOTES N
SCALE 1 INCH = 30 FEET
X PROPOSED TEST PIT LOCATION
I�I
f
CITY OF SALEM, MASSACHUSETTS
ASSESSING DEPARTMENT
93 WASHINGTON STREET
f SALEM, MA 01970
TEL. 978-745-9595
FAX. 978-744-2069 DIRECTOR
-•Palms FRANK KULIK
MAYOR BOARD MEMBERS
STANLEY J. LISOVICZ, JR. DONALD T. BATES
RICHARD W. JAGOLTA, JR.
JOSEPH F. MURPHY
April 13, 2004
Beth Rennard, Esq.
Assistant City Solicitor
City of Salem
C/o Kaufman & Frederick
265 Essex Street. Suite 301
Salem, MA 01970
Re: Quitclaim deed Book 21924, Page 349 of October 15, 2003
Quitclaim deed Book 22508, Page 559 of October 15, 2004
Dear Ms. Rennard:
The Assessing Department received two deeds indicating the subdivision of a
parcel of land on Scotia Street depicted in the Assessor's records as Map 15, Lot
315. After a check with the various City departments normally involved with
granting permission for such a procedure, it appears that there may exist some
procedural problems that bring into question the validity of this subdivision. Our
Department also lacks a valid plan showing the subdivision as well as any
confirmation from Planning Department, or any other normally involved
department, that one was either submitted or approved.
Before we attempt to change our records to reflect the changes in ownership and
size and shape of the property, could you kindly render an opinion regarding the
validity of this subdivision and how you feel the City should reflect these deeds in
what will become our official records.
Sincerely,
Frank Kulik
Director of Assessing
Copy to: Stanley J. Usovicz, Jr., Mayor
Thomas St. Pierre, Acting Building Inspector
Denise McClure, Acting City Planner
Joanne Scott, Director, Health Separtment
' CITY OF SALEM9 MASSACHUSETT$OF SALEM, MA
Tau I& BOARD OF APPEAL CLERK'S OFFICE
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MASSACHUSETTS 01970
STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 ,,.-., ` 2005 A 28 A-ID 22
MAYOR FAX: 978-740-9846
DECISION OF THE PETITION OF AAA MODULAR HOMES LLC REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA STREET R-1
A hearing of this petition was held on July 20,2005 with the following Board Members
present:Nina Cohen,Chairman,Bonnie Belair, Edward Moriarty,Nicholas Helides and
Steven Pinto.Notice of this hearing was sent to abutters and others and notices of the
hearing were properly published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
The petitioner is requesting a Variance from lot size and lot are to subdivide 2 lots into 4
lots for the property located at 16 Scotia Street located in an R-1 zone.
The Variance which has been requested may be granted upon a finding of the Board that:
a. Special conditions and circumstances exist which especially affect the land,
building, or structure involved and which are not generally affecting other lands,
buildings or structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise,to the petitioner.
c. Desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent of the district or
the purpose of the Ordinance.
The Board of Appeal, after careful consideration of the evidence presented at the hearing
and after viewing the plans,makes the following findings of fact:
1. Petitioner AAA Modular Homes LLC (Daniel Hibbard,officer)of 23 Trifone
Road, Revere purchased adjacent residential properties at 14 and 16 Scotia Street
in early 2002. Prior to beginning any construction,petitioner discovered
hazardous waste materials including asbestos at the property,which was
unfortunately partially uncovered and spread over the lot, causing a dangerous
environmental condition at the property...
2. In July 2002,the City of Salem Building Inspector and the State Department of
Environmental Protection ordered petitioner to cease work at the property and to
obtain an environmental regulation regarding material containing asbestos.
3. Petitioner subsequently conveyed the property still subject to the stop work order
to the present owners: Petitioner's mother Lillian Hibbard of 3 Belgrade St. in
Revere and his uncle Joseph Oreto.
4. In July 2003, Petitioner and then-owner Hibbard sought variances from lot size
and lot width to create 4 lots at the property. He was denied zoning relief.
DECISION OF THE PETITION OF AAA MODULAR HOMES LLC
REQUESTING A VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA
STREET R-1
page two
5. In June 2004 Mn,. Hibbard was ordered by the City of Salem Board of Health to
remediate the asbestos contamination of the property within two months.
6. Petitioner did not show the Board an environmental assessment of the property.
Petitioner has not completed a cleanup plan,nor has any remediation ever been
undertaken at the property,which is still contaminated with hazardous material
.more than three years after the discovery of the hazardous condition at the site.
During this period of time,petitioner has made no effort to protect the health of
the neighbors and abutters.
7. Petitioner through his attorney Lawrence Simeone Esq.now renews his request to
subdivide the two properties and create four lots,two of which would be less than
4,875 and two of which would be 5,050sf. All four lots require a variance from
lot width requirements.
8. As grounds fro hardship, Petitioner states that the remediation of the asbestos
would require an expenditure of greater than$150,000, and that without the
possibility of income from the four lots,he is not in a position to undertake
the expense of asbestos remediation.
9. Ward 4 City Councillor Leonard O'Leary opposed the granting of the variance,
on the grounds that the developers failed to stabilize the site once they knew of
the contamination. The work done on the site changed the topography of the
land so that future development will require regarding to protect adjacent
properties from water and soil runoff. Mr. O'Leary argued that the property is
too small for 4 houses and cannot safely accommodate safety vehicles.
10. Also present at the hearing and speaking against the proposal were neighbors
Paul Butler,Deborah Pomoroy, Tom Welch and Dorothea Cormier.
On the basis of the above findings of fact, and on the evidence presented at the
hearing,the Board of Appeal concludes as follows.
1. Special conditions do not exist which especially affect the subject property and
not the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would not result in
unnecessary hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the public
good or without nullifying and substantially hardship derogating from the intent
of the district or purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted 0 in favor and 5 in opposition to grant the
requested variances. Having failed to garner the four affirmative votes required to pass,
the motion is defeated and the petition is denied.
DECISION OF THE PETITION OF AAA MODULAR HOMES LLC REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA STREET R-1
Variance Denied �f 41� 04M
July 20, 2005 �(//" '' � /}��
Nina Cohen, Chairma> S`�
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING
BOARD AND THE CITY CLERK
Appeal from this decision,if any, shall be made pursuant to Section 17 of the MGL
Chapter 40A and shall be filed within 20 days after the date of filing of this decision
in the office of the City Clerk. Pursuant to MGL Chapter 40A, Section 11,the
Variance of Special Permit granted herein shall not take effect until a copy of the
decision bearing the Certification of the City Clerk that 20 days have passed and no
appeal has been filed,or that, if such appeal has been filed,that it has been dismissed
or denied is recorded in the South Essex Registry of Deeds and indexed under the
name of the owner of record or is recorded and noted on the owner Certificate of
Title.
Board of Appeal
CITY OF SALEM, MASSACHUSETTS
a a.
PUBLIC PROPERTY DEPARTMENT
120 WASHINGTON STREET, 3RD FLOOR
9 � SALEM, MASSACHUSETTS 01970
STANLEY J. USOVICZ, JR. TELEPHONE: 978-745-9595 EXT. 380
MAYOR FAX: 978-740-9846
April 20, 2005
Daniel Hibbad
23Trifone Road OP
Revere, Ma. 01151
RE: Zoning Board of Appeal Petition
for 16-18 Scotia Street
Dear Mr. Hibbard:
I have reviewed your application for the Salem Zoning Board of Appeals for the above
mentioned property.
You have requested to be on the May agenda.
Massachusetts Zoning Law, 40A, Section 16, requires a Petitioner to wait 2 years after a
petition has been denied before the petition can be heard again.
Your petition was denied on June 25, 2003. The next hearing date you could apply will
be the July meeting. If you wish to proceed in July, please acknowledge this letter with a
written reply.
Thannk7u,
k�you, ,
)—,W
Thomas St. Pierre
Zoning Enforcement Officer
cc: Kate Sullivan, Mayors Office
Beth Rennard, Assistant City Solicitor
,I CITY OF SALEM9 MASSACHUSETTS CITY OF SAA
BOARD OF APPEAL CLERK'S OFFICE A
n 120 WASHINGTON STREET, 3RD FLOOR
SALEM, MA 01 970
TEL. (978) 745-9595
FAX (978) 740-9846 -1001 JUL -2 P
I'
STANLEY J. USOVICZ, JR.
MAYOR
DECISION ON THE PETITION OF AAA MODULAR HOMES LLC REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA STREET R-1
A hearing on this petition was held on June 25, 2003, with the following Board Members
present: Nina Cohen, Chairman, Richard Dionne, Nicholas Helides, Bonnie Belair and
Joseph Barbeau. Notice of the hearing was sent to abutters and other and notices of the
hearing were properly published in the Salem Evening News in accordance with
Massachusetts General Laws Chapter 40A.
The petitioner is requesting a Variance from minimum lot size and frontage to subdivide
2 lots into 4 lots for the property located at 16 Scotia Street located in an R-1 zone.
The Variance which has been requested may be granted upon a finding of the Board
that:
a. Special conditions and circumstances exit which especially affect the land, building
or structure involved and which are not generally affecting other lands, buildings or
structures in the same district.
b. Literal enforcement of the provisions of the Zoning Ordinance would involve
substantial hardship, financial or otherwise, to the petitioner
C. Desirable relief may be granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent of the district or the
purpose of the Ordinance.
The Board of Appeal, after careful consideration of the evidence presented at the
hearing and after viewing the plans, makes the following findings of fact:
1. Petitioner AAA Modular Homes LLC purchased two lots at 16-18 Scotia Street in
May of 2002. There lots were contaminated by the presence of asbestos in
underground pits apparently left by previous owners. According to the
petitioner's representative Lawrence A. Simeone Jr.Esq, the cost of cleaning and
removing contaminated soil will be over $150,000.00
2. In order to finance the cleanup, petitioner seeks variances to subdivide and
create four single family homes on the site each having square footage of less
than the required 15, 00 square feet and each having less than the required 100
ft of frontage.
3. Neighbors speaking in opposition to the proposed variance were Karen Lavorti of
23 Summit St., Deb Conway of 4 Scotia St., Robin McGlone of 30 Summit St.,
Andrea Peterson of 10 Scotia St, Kathleen Deleos of 9 South St, Rob Rennicks
and Dorothea Cornier of 25 Summit St. also stated their opposition to the
DECISION ON THE PETITION OF AAA MODULAR HOMES LLC REQUESTING A
VARIANCE FOR THE PROPERTY LOCATED AT 16 SCOTIA STREET R-1
page two
proposed variance. They stated that their property was damaged by water runoff
caused by petitioner's improper excavation and site work. Mrs. Lavoratic confirmed
that petitioner has created a dangerously unstable condition by piling earth against a
6 ft fence at the perimeter of her property resulting in an abrupt change of grade
between the two properties that had not been there before
4. The neighbors further stated that they have suffered anxiety as a result of the
petitioner's failure to comply with state requirements for hazardous waste
cleanup, in that they may be exposed to airborne asbestos particles.
5. Ward 4 City Councillor Leonard O'Leary stated that petitioners had met with the
neighbors and had been asked to provide a plan to ensure safety vehicles could
access the proposed lots. Petitioner failed to present a plan for creating a
roadway to ensure access. Indeed, due to a schedule conflict neither the
petitioner nor his representative appeared at the hearing.
On the basis of the above findings of fact, and on the evidence presented at the hearing,
the Board of Appeal concludes as follows:
1. Special conditions do not exist which especially affect the subject property and not
the district in general.
2. Literal enforcement of the provisions of the Zoning Ordinance would not result in
unnecessary hardship to the petitioner.
3. The relief requested cannot be granted without substantial detriment to the public
good or without nullifying and substantially hardship derogating from the intent of the
district or purpose of the Ordinance.
Therefore, the Zoning Board of Appeal voted 5 in opposition to grant the requested
variances. Having failed to garner the four affirmative votes required to pass, the motion
is defeated and the petition is denied.
VARIANCE DENIED
JUNE 25, 2003
Nina Cohen, Chairman �9Cn\\
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND
THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the MGL
Chapter 40A and shall be filed within 20 days after the date of filing of this decision in the
office of the City Clerk. Pursuant to MGL Chapter 40A, Section 11, decision riance or
bearing
Special Permit granted herein shall not take effect until a copy of the
the Certification of the City Clerk that 20 days have passed and no appeal has been
filed, or that, if such appeal has been filed, that it has been dismissed or denied is
owner of record d
oin the r ishreco ded anldEssex t of d on he ownedrsry of Deeds and exed Certif cateunder tof Title.he name of the
Board of Appeal
so CITY OF SALEM9 MASSACHUSETTS
y PUBLIC PROPERTY DEPARTMENT Sa
120 WASHINGTON STREET, 3RD FLOOR C�°y
SALEM, MA 01970
TEL. (978) 745-9595 EXT. 380
FAX (978) 740-9846
STANLEY J. USOVICZ, JR. PETER STROUT, DIRECTOR OF PUBLIC PROPERTY
MAYOR
July 24, 2002
Commonwealth of Massachusetts
D.E.P.
Metro Boston- Northeast Region
ATTN: John MacAuley
205 Lowell Street
Wilmington, Ma. 01887
Dear John:
I have enclosed the following information concerning the land in Salem known as 16-18
Scotia Street or more accurately, on Assessors Map 15, lot 0315.
1. Abutters list developed by Assessors Office
2. Section of assessors map 15 pertaining to Scotia Street.
3. Copies of foundation permits issued for two house lots on subject property.
4. List of current and previous owners.
I have currently issued a stop work order on this property under the authority of
Massachusetts State Building Code 780 CMR, Section 1190.1. If further information is
required, please contact this office.
Sincerely,
Thomas St. Pierre
Acting Building Commissioner
Cc: Tom Phillbin
Councillor O'Leary
Health Department
Stan Bornstein
.�o CITY OF SALEM9 MASSACHUSETTS
g� PUBLIC PROPERTY DEPARTMENT
120 WASHINGTON STREET, 3RD FLOOR
SALEM, MAO 1970
TEL. (978)745-9595 EXT. 380
FAX (978) 740-9846
STANLEY J. LISOVICZ, JR.
MAYOR
January 27, 2003 C®py
Lawrence A. Simeone Jr. Esq.
385 Broadway
P.O. Box 321
Revere, Ma. 02151
RE: Land at 16-18 Scotia Street
Dear Mr. Simeone:
In response to your letter of January 21, 2003, please be advised of the following. Prior
to Mr. Hibbard purchasing the property at 16-18 Scotia Street, this Department was asked
to determine the number of lots. The City Solicitor, John Keenan, was involved and
determined along with this office, that the four lots had merged into two lots. MGL 40A6
Sincerely,
Thomas St. Pierre
Acting Zoning Officer
cc: John Keenan,Esq.
Yl
JRM 22 2003 13: 41 MRCCRLLUM SIMEONE 781 286 5532 p. 1
MACCALLUM& SIMEONE,P.A.
ATTORNEYS AT LAw
THE CITIZENS BANK BUILDING
385 BROADWAY,P.O.BOX 321
REVERE,MASSACHUSETTS 02151
BERNARD J.MALCALLUTM TELEPHONE;(781)286.1%0
LAWRENCE A.SIMEONE,J1L FACSMULE: 081)286-5A32
FACSIMILE
DATE: January 22,2003 NUMBER OF PAGES
rj
INCLUDING COVER PAGE
TO: Thomas St. Pierre
i
FROM: Lawrence A. Simeone,Jr.,Esq.
FAX#: (978)740-9846
RE: Scotia Street, Salem,MA
It you have any problems with this transmission,please call Lisa,Anne,or Theresa
at MacCallum and Simeone P.A.at(781)286.8815.
THIS FACSIMILE IS ATTORNEY-CLIENT PRIVILEGED AND CONTAINS
CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE PERSON(S)
NAMED ABOVE. ANY OTHER DISTRIBUTION,COPYING OR DISCLOSURE
IS STRICTLY.PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE IN
ERROR,PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND
RETURN THE ORIGINAL TRANSMISSION TO US BY MAIL WITHOUT
.MAKING A COPY. PLEASE CONFIRM RECEIPT OF THIS FAX
JAN 22 2003 13: 41 MRCCRLLUM SIMEONE 781 286 5532 p. 2
MACCALLUM & SIMEONE, P.A.
ATTOPN Y6AT"W
THE CITIZENS BANK BUILDING
385 BROADWAY,P.O.BCX 321
REVERE,MASSACHUSETTS 02151
BERN J.MACCAu M Tetst4[ONE Q81)286-1560lwpnetviceA SmaoNe,la FAc Mmz;(761)286-5532
January 21",2003
Thomas St.Pierre
Building Inspector
120 Washington Street
Town of Salem
Salem,MA 01970
Ret Lot#3, #4,405, and#6 Scotia Street Salem MA
Dear Mr. St. Pierre:
In accordance with our discussions,M.G.L. 40A section 7, 1 submit this request for a
zoning determination and request for building permits for the construction of four single
family homes Lot#3,#4,#5, and#6 Scotia Street, Salem,MA.("the Property")identified
above.
The most recently recorded plan of the Property dated March e, 1961 and entitled"Land
of Albert C. Plante Scotia Street, Salem, Mass"("the Plan")was endorsed by the Salem
Planning Board in accordance with M.G.L. c.41 section 81 P(Approval of Subdivision
Control Law not required),
The Plan establishes that Lot#3 contains five thousand and thirty(5030) s.f. and has
frontage of eighty nine (89.00) feet on the westerly side of the private roadway know as
Scotia Street.
Lot#4 contains five thousand and thirty(5050)s.f and has frontage of eighty three and
fifty-one hundredths(83.51)feet on the westerly side of the private roadway known as
Scotia Street.
Lot#5 contains four thousand eight hundred and seventy (4870)s.f.and has frontage of
eighty seven and two hundredths (87.02) feet on the easterly side of the private roadway
known as Scotia Street.
JRM 22 2003 13: 41 MRCCRLLUM SIMEOME 791 286 5532 p. 3
Lot#6 contains four thousand eight hundred and forty-six(4846) s.E and has frontage of
eighty four and four hundredths(84.04)feet on the easterly side private road way known
as Scotia Street.(see attached Plan marked Exhibit A
In accordance with the Zoning Ordinance of the City of Salem and the Zoning Map of the
City of Salem said Property is located in the R-1 district,single family district,in
accordance with the Article V"Use Regulations".(see attached Zoning map section
marked Exhibit B and see attached former deed marked Exhibit C
The Table I of Density Regulations for Residential Uses establishes that the minimum lot
area is fifteen thousand(15,000) square feet and minimum lot width(frontage)is one
hundred feet.The Property fails to comply with the current ordinance.
Article VIII of the Salem Zoning Ordinances afford protection to lots which are not in
conformance with the existing ordinances area and width requirements.
Article VIII Section 8-2 states in pertinent part"where a lot or lots exist which could not
be built upon for residential purposes under the terms of this ordinance by reason of
restrictions on lot area or lot width,such lot or lots may be used subject to the following
provisions :
(l) Any increase in area,frontage,width,yard or depth requirements of a zoning
ordinance or by-law shall not apply to a lot for single and two-family residential
use,which at the time of recording or endorsement,which ever occurs sooner,
was not held in common ownership with any adjoining land, conformed to the
then existing requirements and had less than the proposed requirement but at least
five thousand(5000)square feet of area and fifty (50)feet of frontage. The
provisions of this section shall not be construed to prohibit a lot being built upon
if,a the time of the building,building upon such lot is not prohibited by the Salem
Zoning Ordinance".
the "had less"language if read to mean that the lot had less than the requirement at
the time or recording or endorsement would require the lots properly subdivided to be
buildable.
The last plan of record at the Essex Registry of Deeds was March 66, 1961,which shows
the Property is an approval not required plan endorsed by the Salem Planning Board
further supports this conclusion.
As a result the vacant lots also qualify non-conforming lots in accordance with M.G.L. c.
40A, Section 6 and therefore are protected single family building lots.
The M.G.L. 40A Section 6, looks to the date of the recording of the lot(s). Noteworthy is
the fact that in several cases the critical issue for the court and as it interpreted both the
Section 6 and local zoning law is the date of the recording of the lot and whether at the
time of the recording whether said lot met the current lot dimensional requires (i,e., front
2
JRM 22 2003 13: 41 MRCCRLLUM SIMEOME 781 286 5532 p. 4
1
Yard and minimum lot size). See Lee v. Board ofAppeals of Harwich 414 N.E2nd 619,
11 Mass.App.Ct. 148(Mass.App. Ct. 1981).
In accordance with above stated facts and legal analysis, at this time,I respectfully
request that a letter of determination be issued by your department that Lot#3,#4, #5,
and#6 Scotia Street are legal single family house lots in accordance with the Salem
Zoning Law.
Should thele be a need for further information please feel free to contact this office. Your
expeditious reply to this request will be genuinely appreciated.
Very truly)W52,
L ecce . imeone Jr„Esq.
cc:Daniel P.Hibbard, AAA Modular Homes,Inc.
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aoa15358 ROE 45
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Albert C. Planta, Scotia Street, Sal hiwba.,, Har. tool Idwln T. llmdYaesk4 SaOgtered
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SOUTRUOTEeLY by ISM Mw er aermariy of B6rkawAY, 66,88
fact s6 ohm m said plan;
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' Aw
RDRTIEWSSURLY by Lmt�*alma an sold DIM 88.64 feet. .
donWotee Poeel{'dblg to said W+M �'e ,
Por am U44)worence, ew deed 16 u6 daw Ow 1. Im'sod rsoorded
i
at tba'6ssax Swth District Ra818m7 of Deeds in gook 4rr4i'Pa6B Hl.
.
FOR additional BAo retgreme, see dead of Rlchod remadek dated Odowa 36,
1986 and recoMed wIb sold Deeds, Dock 1919, Page 460, '
i
it&OCA (•'.
10CANe, .a ' d� "`� ovna'mNMI OF eiatraOMS
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Q4e 6ontmnwgit4 of Alawat4nu#.
I
f . Beesk, et. May 3. 1964
.. . 'hes p M.mUy sfpeated the sboee aemsd - RobaK A. 211107 ..
Sed sdmowladgad the fetege0,g Isoremem to be ban fn a xs'mud dB�ad,Wfute� .
}. ..- .
clicib"-101st TOWN -Trona t6 O _-reneb or IY RWs�g•) f {
$saes U.Be so rd ed May 3,1046. 1.7,M.9662 11 A.16.184 t _
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JRN 22 2003 13: 41 MRCCRLLUM SIMEONE 791 296 5532 p. 5
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TtY - i t b iii` ,a u!/'-
LYNCH, DESIMONE & NYLEN, LLP
ATTORNEYS AT LAW
�1 POST OFFICE SQUARE
BOSTON. MASSACHUSETTS 02109
Telephone: (617)34SA500
V Facsimile: (617)348-4545 D
JOHN M.LYNCH,P.C.
ERNE%T P.DESIMONE NAY `: 2��5
RICHARDA.NYLEN,JR. OFr SFZ
FREDERICK S.GILMAN JAMES.W MURPHY
STEPHEN W.DECOURCEY CITY Q F 5 A L LNWE H. Scorr
JOHN P. CARR MAYOR'S OFFICE
SHANNON MICHAUD
April 28, 2005
DEP LockBox
Department of Environmental Protection
Box 4062
Boston, MA 02211
Re: Joseph S. Oreto; Unilateral Administrative Order; UAO-NE-05-3A002; 16 Scotia
Street, Salem,MA; Notice of Appeal
Dear Sir/Madam:
Enclosed please find a check in the amount of$100.00 along with the Fee Transmittal
Form with regard to the above referenced matter.
Thank you.
ncerely,
LW1T
Richard A. Nylen, Jr.
RAN/kad
Enclosures
cc: Ms. Deneen Simpson/DEP Docket Clerk
Mr. Stephen M. Johnson,DEP (via Hand Delivery)
Mr. Daniel Hibbard
Mr. Joseph S. Oreto
FC41AA Climbmrs DEPJowph Orto-UAO-NE-05-IA002Tw etmr to DEP Lockboz.doc
Fee Transmittal Form
Request for Adjudicatory Appeal
Department of Environmental Protection
Person/Party Making Request: Applicant(if applicable):
(If appropriate, name group representative)
Name: Richard A. Nylen,=LLP
Name:Joseph S. Oreto
Lynch, DeSimone&Nyle
=State/ZipCode:
e Square, Suite 600 Street: 313 Beach Street
City/Town: Revere
02109 State/Zip Code: MA 02151
Phone: 617/348-4500
Project Location: 16 Scotia Street, Salem,
MA
DEP File or ID Number: UAO-NE-053A002
Amt.Of Filing Fee Attached: $100.00
Instructions
1. Send this form and check or money order for$100.00, payable to the Commonwealth of
Massachusetts, to the DEP Lockbox at: Department of Environmental Protection, Box 4062,
Boston, MA 02211.
2. Send a copy of this form and a copy of the check or money order with the Request for an
Adjudicatory Appeal to: Docket Clerk, Office of Administrative Appeals, One Winter Street,
Boston, MA 02108.
Important!
This form is Intended for fee transmittal only.The contents of a request for an adjudicatory
appeal (Notice of Claim)are established at 310 CMR 1.01 (6)and the substantive statutes
and regulations governing the Department's action.
LYNCH, DESIMONE & NYLEN, LLP
ATTORNEYS AT LAW
12 POST OFFICE SQUARE
BOSTON,MASSACHUSETTS 02109
Telephone: (617)348-4500
Facsimile: (617)348-4545
JOHN M.LYNCH,P.C.
ERNm P.DESIMONE OF COUNSEL
RICHARD A.NYLEN,JR. _
FREDERICK S.GILMAN JAMES W. MURPHY
STEPHEN W.DECOURCEY A n128 2
JOHN P. CARR P , 005 WAYNE H. SCOTT
SHANNON MICHAUD
1'ia Hand Delivery
Ms. Deneen Simpson, Docket Clerk
Office of Administrative Appeals
Department of Environmental Protection
One Winter Street
Boston,MA 02108
Re: Joseph S. Oreto; Unilateral Administrative Order; UAO-NE-05-3A002; 16 Scotia
Street, Salem,MA; Notice of Appeal
Dear Ms. Simpson:
Enclosed for filing please find an Appeal and Claim for Adjudicatory Hearing in the
above-referenced Unilateral Administrative Order("UAO"). A copy of this appeal has been sent
to the Department by hand delivery. A copy of the letter to the Commonwealth Master Lockbox
is attached. I have also attached a copy of the UAO.
Thank you.
jISincerely,
,
Richard A.Nylen, Jr.
RAN/kad
Enclosures
cc: Commonwealth Master Lockbox
Mr. Stephen M. Johnson,DEP (via Hand Delivery)
Mr. Daniel Hibbard
Mr. Joseph S. Oreto
City of Salem/Office of the Mayor
H:IAAA CEmbenIDEPUoseph Oreto-UAO-NF o5-3AOOPCarrUA ter to Simpson.da
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
File No.: 1UAO-NE-05-3A002
IN THE MATTER OF: )
JOSEPH S. ORETO )
Salem—RTN 3-21960 )
16 Scotia Street )
APPEAL OF UAO AND CLAIM FOR ADJUDICATORY HEARING
I. INTRODUCTION
This matter involves the appeal by Joseph S. Oreto ("Oreto" or the "Petitioner") of a
Unilateral Administrative Order("UAO")issued by the Department of Environmental Protection
(the"Department')to the Petitioner for the alleged noncompliance with the Massachusetts
Contingency Plan ("MCP") in connection with two(2) lots owned by Petitioner at Scotia Street,
Salem,Massachusetts (the"Property"). The UAO is dated April 8, 2005. The Petitioner states
that several of the stated facts are incorrect and that the Department cannot provide evidence to
support some of its claims. Petitioner is aggrieved by the Order.
Petitioner requests this Court to dismiss the UAO because the Property is now in
compliance with the MCP. A copy of the UAO is attached.
H. BACKGROUND
This matter involves four(4)vacant lots[ located at 16 Scotia Street, Salem,
Massachusetts. Petitioner is the record owner of two lots,3 and 4.
'A separate appeal has been filed on behalf of the owner of the other two lots.
Prior to the purchase of the lots, the Department alleges that a release of oil or hazardous
materials had been reported in July 2002 to the Department. The release involved the presence
of asbestos from old bricks and chimney debris from a former owner. Petitioner states that he
did not file notice of the alleged release and that he was not responsible for the presence of
asbestos and that the prior owner could be determined by the Department.
A further Immediate Response Action Plan to assess the asbestos on the Property was
filed by AAA Modular Homes, LLC in October 2002 according to the Department. AAA
Modular Homes, LLC was the most recent owner of the two lots.
The Department alleges that it sent a Notice of Noncompliance ("NON")to Petitioner
requiring the submission of documents pursuant to the MCP in 2004 and that the documents
requested have not been filed.
III. THE UAO
On or about April 8, 2005,2 the Department issued a Unilateral Administrative Order(the
"UAO")alleging that Petitioner was out of compliance with the MCP and ordering an IRA or
other filing within sixty(60) days of the Order demonstrating that the Property poses no
significant risk to the environment.
The UAO found that Petitioner is in violation of the MCP at the Property and that
Petitioner must contain or remove the asbestos to comply with the MCP and the Order.
IV. REASONS FOR APPEAL
The Petitioner files this claim for Adjudicatory Hearing based upon the following
reasons:
2 The UAO was dated Friday,April 8,2005. The UAO was received after April 11,2005.
-2-
a) Petitioner disagrees with the Department's requirements for the Order because
there is no proof that lots 3 and 4 are contaminated; and
b) Petitioner took possession of the Property approximately one and one-half(1'/z)
years ago and believes that steps have been taken to bring the Property into
compliance with the MCP and that he is unaware of how lots 3 and 4 are not in
compliance with the MCP; and
C) Lots 3 and 4 were not contaminated by the Petitioner; and
d) The Department has not demonstrated that the condition of the Lots violate the
Department's asbestos policy or are contaminated; and
e) Petitioner has not caused the alleged violation; and
f) Petitioner believes that an LSP has prepared the documents and submitted them to
the Department as required by the Order showing no contamination on Lots 3 and
4; and
g) Petitioner's counsel attempted to settle this matter in good faith and Petitioner has
cooperated; and
i) The Property is secure from a public health or safety threat.
REQUEST FOR RELIEF
1. That Petitioner should not be penalized for requirements of the UAO that are in
excess of the MCP;
2. That the Court finds that the Petitioner is not in violation of the MCP because it
was not the owner;
3. That the Court find that the Department has not met its burden of proof to show a
violation; and
-3-
4. Petitioner reserves the right to add other defenses.
JOSEPH S. ORETO
B 's'�ttomey,
Richard A. Nylen, Jr., Esq.
Lynch,DeSimone &Nylen,LLP
12 Post Office Square, Suite 600
Boston,MA 02109
Tel: (617) 348-4500
Fax: (617) 348-4545
Dated: April 28, 2005
HAAAA Climbcm\DEPUoseph Crc UA0-NE-05-3A002UDocs\Appeal ofUAO.doc
-4-
COMMONWEALTH OF MASSACHUSETTS
I f �XECUTZVE,OFFICE OF ENVIltONMENTAL AFFAIlZ5
DEEARTMEN� OF ENVIRONMENTAL PROTEbTION
ONE�FQINTER.$TREET•`$OSTON,'BfA021b8 .617292 6500
MITT ROMNEY .
- -_.-.----ELLEN ROY-EXRZFELDER
. .. Governor
r.:
a+e
BERRY HEALEY. -r-,'I r r c - '•:a � r s' .1; 4
. ROBERT W:GOLLEDGE,Jr. '..
Lieutenant Governor Commissioner
April 8,2005
: � I'
UTA FIRST CLASS AND
CE�2TTFIED MAIL4i4003 311616061:6 7106
yu
Joseph S Q�eto r 3
t u fi t o313
�_4
Revere,MA 02151 .
RE TJ S MATERAL ADMINISTRATIVE ORDER
16JS idiStrhe`k�
.' �,-. �.x 11 `v9cFn' r{^1 .1�<'T4 ..r E`.,•. ) c r.�F.Zi r,t r vt,.rt J,C� t .JL)g7 1 3 �..�5 � vs`�..'. . - -.
TRIS IS AN HAPORTANT.NOTTCE. 'FAILURE`TO RESPOND TO'.THIS NOTICE Oi1ID
RESULT IN SERIOUS LEGAL CONSEQUWC-ES
Encosclr)sem a#Unilateral, dminlstrxe Order, ("Order".E� eq�]�ng you to conduct
Fr su1�`fir vrir , t3fa,7vt r '1, N3T. .atrV 1
response actions at+hg capon�e erenced above$ .t<� rv�t u s
3 sThe ea$ons SRF ssumg this S�rder, nil yyunnght Iot m eal are e 71 to e t7lV ached
Order Please read`thls Order carefully: : Failure o take adequate achgn In Tesponse to ltlwill
result in serious legal,consequences
;,y'i s `;at`3
Please contaot Paegan Deering at(617)654-6660 if you have any.questions`
OUIS tlUly mzfl n s
wardKun >,
Northpea Regloiial Director
'This W-mitfou is avvDable In Alternate format CAD April McCabe,ADA Coordinatoru 1617156-117L TDD Servtee=l-Nd-2q&22o7,
DEP on the Wood Wide Web: hltp:IAw .m -uovld p - - - -
tJ Printed on RftWed paper
i
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIItONME1VTAL AFFAIRS C
DEPARTMENT OF ENVIRONMENTAL PROTECTION_
RE: Salem-RTN 3-21960
INTHEMATIER OF. ) 16 Scotia Street.
Joseph S.Oreto ) UNILATERAL ADMINISTRATIVE ORDER "
UAO-NE-05-3A002
I TBE PARTIES'
1. ThDepartment of Eiivironmeutal Protecfion(the-Department"or`T)EP').is a duly oodshtufed .:== -
agency of the:Commonweaith of Massachusetts. Its principal office is located at One Winter Street'..
in Boston Massaohusetts02t08: t4
2. . Joseph S.Oreto,of 313 Beach Street,Revere u the current ovine W"ta 3 add,4 and theLnvate I
street abutting the lots on a plau recoiled with the Fssex(So,Dist)R-gis�gf;D66dsBook 4749,.
Page 1 and described in the Quitclaim deed to Joseph S Oreto recorded, Essez`(So Dist)
Registry.of Deeds Book 21924 Page 349.Joseph S.Oreto is hereinafter iefetted to as"
Respondent 'l1T
II.DEFIIVITIONS + i
tr�:Yl!
L, If
3 Unless othetwkse indrted the terms used lierem sha111iave the meaivag gkven to them by the
a
Massachusetts Oil and Harardous Material Release Prdvenhon ahs Response�1et'M.GJ.,c 2113 s'.
( MGI c 21H' ,and the regulations promulgated thereunder as the Massachusetts ContingencyPlan '
MCP '310 CMRT4lf Ob00+et 1n addition the Iolfowing temps)shall have the meaning defined
Site:shall mean the properties located at 16 Scotia Street,Salem MA and any other place or area'
cohere the elease(s)ofoil or hazardous material(s)at and/or from said properties has come to be
I ocated t
5 �w.�#:
shall mean Lots 3 and 4 and jlle private street abutting the lots on it plan recorded with
the Essex(So Dist)Regnsh of Deeds.Book'4749;Page I`and descnbed'in the Quitclaim deed
to Joseph S Ofeto recorded with the.Ea.ex(So.Dist)Deeds Book 21,924 Page 349;The 1
Property,located at 16 Scotia SG° compn w aportion of the Site.
III. STATEMENT OF LAW
4. The Department's authority to issue this Unilateral Administrative Order (UAO or Order) is
conferred by M.G.L.'c.2113, § 9 and the regulations promulgated-thereunder at 310 CMR-40.0000
(the"Massachusetts Contingency Plan"or the.."MCP'l. c
IniheMawge- floseohS.Ol'etO-UAONE-05-3A002 -- -_-"— ------':Pa le--2ofb— . . ..
-
5. Pertinent provision(s)of the Massachusetts Contingency Plan are as follows:
a. The Role of RPs. PRPs and Other Persons in Response Actions: 310 CMR 40.0170(5)
states, in part, that RPs, PRPs and Other Persons ("OPs') shall perform each and every
response action'properly arid'pcomptly:within deadlines prescnbed,by, or:pursuant to __
M.G.L.c.21E and/or the MCP,including any Interim Deadlines.
b. 310 CMR 40.01 00(l)states in part,the Department has final administrative authority and
discietion to detemune'an'y'and all of the followings =
a. the appropriate extent and nature of a response action consistent with M.G.L:c!'
21E and 310 CMR 40 0000,and
b. ;whe(her;a response action,apphcahon Opinion or other submittal is m
compliance with.14'"' L.c.21E,310 CMR 40 00003an other applicable
i
requirements.
t TY •vt 'vt �
c 310 CMR 40 0404(3)(d).and 40 0501(3) require;,RPs,sand_PRFs, to submit-a Frier
r,
Classification Submittal or Response Action Outcome(`RAO')to DEP no later than'one .
;fc' ' ear aft&,Ihe date DEP issues aNOR,to,the bwner,or erator f a site. ec that
Y OP o spg
^that they are au RP Or PRP fot a release:
I
d. : 310 CMR 40.0420 requires that Immediate Response Actions_(II2As) be.,performed in
response to all releases and threats of release that require notification to DEP within two
hours pursuant to 310 CMR 40.0311Tand 310 CMR 40.0312.310 CMR 40.0425'and 310
CCMR 40.0427 require persons conducting IRAs to submit an IRA Status Report and, if
the IRA:is,complete,to submit.,n IRA Completion Report ,
IV. STATEMENT OF FACTS
6. Respofi�dent is the owner of the Property;fromor at which thele is or bas been a'release and/or
threat of release of oil:and/or hazardous material pursuant io;M G L c1$and;ihcMCP.
7. -14y 23;"2-
092,a rerease of oil and/or hazardous matenals as:defiped by Ivf G L i 21P lection 5 and
the MCP was reported affieSite DEP:took samples,fbom the$ite and the:saFnples containe4 asbestos.
The release at the Site was assigned Release Tracking Number(RTN)3-21960.
fi >J
F. iii: �t}i -:' `-- Y.w + 7t✓;'
August 8,2002,the Department issued a Notice of Responsibility to the AAA.M Homes,
LLG '; it s
W. _ t -'s
9. On O-.- .. 3;2002 AAA Modulaz Homes,LLC reported a 2-hounseporting pondifion associated
with"gsbestos on the Sife in'accordm&with 310.0MR 40 0311,;::
10. OnNovember4;+2003,theD.epartmentissuedallotice",bfNoncflmphance;_KON)toAAAModular,=
Homes;LLC ursuapfto M G L c 21 16and310 CMR 5:00 The NON
P A § seguhe AAA,'lpfodulaz
Homes;l
VCto S5ibriiif a Response Action Outcome Statement_ora'Tier Classificationto DEP within
thirty;(30)'days'of receiving theNON.
11. On October 14,2004,AAA Modular Homes,LLC conveyed the property to the Respondent.
12. On July 19,2004,the Department issued a Notice of Responsibility(NOR)and a NON to
Respondent,pursuant to M.G.L.c.21A,§16 and 310 CMR 5.00,requiring Respondent to submit an
InIhe 14after of Josenb S Oreto-UAO-NE-05-3A002 Pae 3 of 6
IRP.Plan within twenty-one(21)days of receiving the NOR/NONand an RAO or Tier Classification
with four(4)months of receiving the NOR(NON.
13: As of the date this:Order,Respondent has not submitted the documents required by the NOR/NON. j
V. STATEMENT OF DETERMINATIONS
IJ
Based upon the Statement of Facts set forth above in Section IV the Dep iartment has determined
14. The Site is a.disFosal site as defined by MGL o 2IE and the MCP` Conditions at the Site
constitute a release or threat of release fo the environment of orl`and/or hazardous material pursuant
15:. Respondent is the.owner of a Property it which there is or has been a release and/or threats of
release of oil and/or hazardous matenal putsuut t&M.G.L.L c 21 E and the MCP
jJ.,C t
16:'= `Conditi3ns at the Property posea srgmfidn't danger to the public.hb dth ,safety,.}velfare or the
environment the Department therefore has authority to issue to.`any person de.scrr'bea-m M.G.L.c.
21E§5 an Order requiring removal actions pursuant to M.G.L.c.21E,§9 and consistent with the
Massach�isetts Contingency Plan: L
17. For the reasons and underithe>suthonty,.set forth'in Sections .III . V;'and V of this Order, the
Department hereby issues this Order to Respondent:
a: Within sixty(60)days of the effective date of this Order,through performance of an IRA or..a
Ralease`Abatement7Vleasute or Phased Comprehensive Response f ctions,itespondentshall,,
coriductsuch e'ssessmehC dont3inment and/or removal as is necess.&y.-to ughreve.a condition
of No Significant Rrsk at the Properly in the Opinion of a Licensed Site Professional..Such.
j ja-hievements Mte d6bbmented.ia.PartialResponseAction OulcomefkAO-P),Statement
Iftt
ort b Prupefiy which meets the regiurements 6f 310 CMR 40 1000, *; }
-
"7 . .. . .. :.
18: Respondent shall pmvrde notice of this Order to each contractor and subcontractor hired to
aoudiiot R`espiints6 Actions znd10 each jierson representing;Respondent;:including Licensed;Site.;:
Professionals; Notwithstanding the terns of any.contract, Respondent is responsible for
compliance with this Order and for insuring that its.contractors, subcontractors, consultants and
9616;1'4 Iy`tMh'" Order A.violation'ofithe;terms of:this Ordef_bytanyiof.Respoadent's
contractors,subcontractors;consultants o ageii .'is•a violation of this Werby Re porirclenft;;:
19 % All sdbinrttaLs inquired'pursuant to 310.CMR 40:0000 et sea or:this Ordershall ye in compliance.;s t
with the MCP Jncfuding+without limitation any:bther..applicabl6-timelines and_Petfomtanee
" Stan`dafds 'TailurC Yo provide if submittal.in compliance with:this Or em,;the IyICP, appligable
timelines and/or Performance Standards,shall constitute a violation,of.this Order by:itespondent.
e In the Matter of Joseph S.Oreto-UA0-N1_05-3A002 Pave 4 of 6
VTI.NOTICE OF RIGHT TO REQUEST ADJUDICATORY HEARING
20. Respondent is hereby notified of its right to an adjudicatory hearing on this Order underthe
provisions of M.G.L.c.30A and in accordance with 310 CMR 1.00 and 310 CMR 40.0050 within
twenty one(21)days of the date of issuance of this UAO. ,
21. . Any request by Respondent for a hearing on this Order must be sent to:
Docket Clerk
De'p...artmentofEnvrronmentalProtection
Boz 4062','..
Boston;Massachnsetts'02211
'-by'cerirfied mail or hani] delivery"wYthin'twerity orie (21) da}s of tfie Yiate of.issuance of this
Older A copy of the request shall be sent by certified mail.or hand d@livered simultaneously to: :
g
Stephen M Johnson ;>
Noitheast Regitin �+
Department of Environmental Pmtec,ion
'One Winter Street s
Boston,MA 02108 L
L
22 Anx request by.Respondent for a hearing on this Order,submitted pursuant to 310 CMR 40.0050,shall
sW cIeady and concisely the facts which ace grounds for the pioceedrng Wh2tmanner the person rn'
.
whose name the Yequest is made,>$ aggneved`'and the remedy that rs being sought.°,'�'he$ppiopriate .
filing fee regaiied finder 310'CMR 4.00`shall be Sent to the Deparimentin'the riianne required herein.'
23 Pursuant to 310`G'MR 40 0050(7),the filing of an appeal of tivs`Order shall:not prevent the Department
fiom3ssuin an" firturebrdeisor anotheractronfihe artmentreasonabl' deemsn to
g y rakm ' y Dep Y. e.cc a_
respondo a release or threat of release'of oil or hazardous niaterial;'includiiig,brit not limited to taking
or arranging one or more response actions at the Site.
r` '
VIM-'ADDMJ ONAvPROVLSIONS
24. Nothing in this Order. shall prevent the`Department from requiring Respondeat to take,additional
actions beyond those reciuued m this Order to comply VA. .all:applicable statutes and regulations. The
Department reserves the rrgh't to`exercise'the full exteaht of its legal authority in order to obtain full
compliance with all applicable regnirerrents meluding liar not limited to criminal pmsecutiou civil
action including court imposed civil penalties or�dministiative penalties irirpo'sed by the Department '
25 PurSiiant to I'vLG I c 21B § 11; m"addition'to`"costs mciured by:the CoiriaiomGealthxlor-the` :'
mvestgation assessment containment and removal of a release or threat of release gf ofl or hazardous
mateixal, should Respondent:violate-any provision bf this Order Respondent(a) shall be subjecf to a
civil penalty not to exceed twenty-five thousand dollars for each such violation;'or(b)shall be ptmished`:
by a flue of not more than twenty-five thousand dollars; or.by impriscnment'for not move-than two
years in a house of correction or both for each such violation
26. Pursuant to M.G.L.c.2113§ 10(a),if Respondent fails to timely file an appeal of this Order,this Order
shallbe deemed assented to and becomes effective twenty-one(21)days atter the date-of issuance of
this-_Order_hy._R�spondent_-If Respondent.appeal this Order the effective date will be established
pursuant to the terms and provisions ofM.G.L.c.30A and 310 CMR 1.00.
In the Matter of Joseph S.Oreto-UAO-NE-053A002 Pare 5 of 6
27. The Department represents that the Regional Director has the authority to issue tbis'Order on behalf
of the Department. i
28. The Department may, on its own nitiahve or,_upon reasonable documented request `from
Respondent, extend any deadline established in Section VI of this Order,by a written amendment .
hereto.
a. If Respondent•has reason:to,know that',any,:evtent has occurred or may occur which could
cause delay of performance hereunder,:.Respondent shall immediately notify the
Department in writing specifying the cause fotFthe. delay. Respondents will submit to
DEP a request in writing stating the reason for missing the deadline, the measure or
measures to be taken to minimax ithe delay,and the proposed schedule for i nplementing
u those measures, tk .�.rs:
ymgs.:
b. The:decision as to whether the dela event stated rn a deadhnb extension'request, .
submitted by Resppndent is,dbemed sufficient to excuse noncompliance-,with a given
deadline is an enforcement decision to be tirade at tha:Department's sole discretion. The -
Department shall notify Respondent m writing of;the acceptance:or rejection of eery '
request to extend a deadline;and.
C. Should the Department not agree to approve a deadline extension request submitted by
Respondent Respondent shall be iu noanoe with this Order.
29 Farhue of the Department to complam of action or non action on the part of Resha
spondent ll not
constitute a waiver,by,the Department of any of ds rights hereunder Furthermore,no wazyer by the
Department of any provision herein shall be construed as a waiver of any other,provtsron hetym ':
30 r Ifaay term or proyrsron of-this O;der,or the_aplihcahon thereof to any person or cmvt astance,rshallto \
any extent,he mvand or unenforceable fhe remainder of thu Order,and the a plication 1 ,;4 shall '
not:bb affected thereby, and,eacli mma;n;ng:teLIIl and p%vzs*on:shall be vai d,and enforceable to the
%
exfentpemutted by law. a
31. . Each document submissionrequired froom Respondent by thu lhder shall be submitted to:
Stephen,ivf Johnson
Northeast,Regron
Department of Environmental Protection ^
a One eyVr¢ter Street,
Boston Ivft1 Q2108,.
32 :,.The submissron(s)requi.ired by this Order shall be accompanied by a applicable feels)
a.3' 1 •- ...'.
.. r u.•
in the Matter of 7oseoh S.Oreto-UAO-NE-05-3A002 Page 6 of 6
i
t �
i
SO ORDERED:
DEPARTMENT OF ENVIRONMENTAL PROTECTION
I
BT.
Ed and P.Kunce, ortheast Regional Director
One Winter Street
Bostgon MA 02108
Data Entry/file(UAO)
LYNCH, DESIMONE & NYLEN, LLP
ATTORNEYS AT LAW
12 POST OFFICE SQUARE
BOSTON,MASSACHUSETTS 02109
Telephone: (617)3484500
Facsimile: (617)34814545
JOHN M.LYNCH,P.C.
ERNEST P.DESIMONE OF CO UNSEL
RICHARD A.NYLEN,JR. _
FREDERICK S.GILMAN W. MURPHY
STEPHEN W.DECOURCEY LAMES H. SCOTT
JOHN P. CARR
SHANNON MICHAUD April 28,2005
Tia Hand Delivery
Ms. Deneen Simpson, Docket Clerk
Office of Administrative Appeals
Department of Environmental Protection
One Winter Street
Boston, MA 02108
Re: Lillian Hibbard; Unilateral Administrative Order; UAO-NE-05-3AO03; 16 Scotia
Street, Salem,MA; Notice of Appeal
Dear Ms. Simpson:
Enclosed for filing please find an Appeal and Claim for Adjudicatory Hearing in the
above-referenced Unilateral Administrative Order("UAO'). A copy of this appeal has been sent
to the Department by hand delivery. A copy of the letter to the Commonwealth Master Lockbox
is attached. I have also attached a copy of the UAO.
Thank you.
Sincerely,
"Nylcn,
RAN/kad
Enclosures
cc: Commonwealth Master Lockbox
Mr. Stephen M. Johnson,DEP (via Hand Delivery)
Mr. Daniel Hibbard
Ms. Lillian Hibbard
City of Salem/Office of the Mayor
HAAAA ClimbersV)EKA11jan w'bbar&UAO-NE.05-3A003\C0nMxff r to SimpWMCIOc
LYNCH, DESIMONE & NYLEN, LLP
ATTORNEYS AT LAW
12 POST OFFICE SQUARE
BOSTON,MASSACHUSETTS 02109
Telephone: (617)348-4500
Facsimile: (617)348-4545
JOHN M.LYNCH,P.C.
ERNEST P.DESIMONE - OFCOUNSEL
RICHARD A.NYLEN.JR.
FREDERICK S.GILMAN JAMES W. MURPHY
STEPHEN W.DECOURCEY WAYNE H. SCOTT
JOHN P. CARR
SHANNON MICHAUD
April 28, 2005
DEP LockBox
Department of Environmental Protection
Box 4062
Boston, MA 02211
Re: Lillian Hibbard; Unilateral Administrative Order; UAO-NE-05-3A003; 16 Scotia
Street, Salem,MA; Notice of Appeal
Dear Sir/Madam:
Enclosed please find a check in the amount of$100.00 along with the Fee Transmittal
Form with regard to the above referenced matter.
Thank you.
Sincerely,
Pha .Nylen,Jr.
RAN/kad
Enclosures'
cc: Ms. Deneen Simpson/DEP Docket Clerk
Mr. Stephen M. Johnson,DEP (via Hand Delivery)
Mr. Daniel Hibbard
Ms. Lillian Hibbard
HAAAA ClimbenWEPUllian Hibbard-UAO-NE-05-3A003\Cort\1eller m DEP Lmkb=dm