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HomeMy WebLinkAbout2019-12-11 ConCom Minutes for December 11,2019,adopted Dec. 16 ANruc CONSERVATION COMMISSION PUBLIC MEETING s a' 2 Bathing Beach Road• .tet Nantucket,Massachusetts 02554 „�� ��0 � www.nantucket-ma.gov Z. ft© A =` Wednesday,December 11,2019 . 4 Fairgrounds Road,Training Room—4:00 p.m. v Commissioners: Ashley Erisman (Chair), Ian Golding (Vice Chair),David LaFleur,Joe Topham, Seth Engelbourg, and Maureen Phillips !% Called to order at 4:03 p.m. v Vit, Staff in attendance: Jeff Carlson,Natural Resources Coordinator;Joanne Dodd,Natural Resources Office Administrates;Terry Norton,Town Minutes Taker J Attending Members: Erisman,Golding,LaFleur,Topham,Engelbourg,Phillips Town Counsel: George Pucci,K&P Law(via phone) Agenda adopted by unanimous consent PUBLIC MEETING A. Public Comment—None B. Orders of Conditions 1. *Sconset Beach Preservation Fund(SBPF)—87-105 Baxter Road(48-various)Area SE48-2824 Sitting Erisman,Golding,LaFleur,Topham,Engelbourg,Phillips Recused None Documentation Supporting documents,plans,correspondence,and photos.DNR Inspection Report. Applicant Steven Cohen,Cohen&Cohen LP Representatives Dwight Dunk,Epsilon Associates Inc. Public Yvonne Vaillancourt,Biologist Mass Field Station Katherine Murphy,`Sconset D.Anne Atherton,48 Squam Road,Nantucket Coastal Conservancy R.J.Turcott,Nantucket Land Council,Inc. (NCL) Discussion Erisman—We are discussion the December 4 Site Inspection,nourishment guidelines/conditions,and potential failure criteria.Asked all comments be directed to those subjects only. Carlson—Described the inspection report:saw a lot of debris in the template sand. Erisman—She went out and viewed from the top of the bluff and then walked in front of the template;she couldn't walk on the template as work was in progress. Her photos are part of the packet record. She noted debris of various size throughout the template to include bricks,rocks,and chunks of concrete. Phillips—She saw it as well Engelbourg—Asked if the photos covered all different spots. Carlson— He took photos of the entire length, top to bottom; the photos cover his usual route to include walking south on the template.The bank to the south contributes construction material down the bank and has been distributed across the template. He has reviewed other projects that use the same delivery point(Hoicks Hollow).Some of the other access sites have only been filed by the applicant for their sole use. Cohen—SBPF views itself as a responsible partner and wants to take actions to ensure fill is compatible and clean,despite a social media campaign to argue otherwise.There is nothing the prohibits the activities that have happened so far;asserts that not all of the pictures are from the SBPF site.A lot of the debris falls from the top of the bluff from former residential sites;debris moves up and down the beach from other areas due to water and wind. There should not be an overage of inorganics and debris. SBPF volunteered to come up with compliance guidelines to ensure the sand is clean. Mr. Dunk submitted that this afternoon. There are three commercial sand pits on Island;almost all sand is reused so it's a matter of how it got to the pit.All sand taken out of an excavation site goes to a"borrow pit."All sand is tested and cleaned before use and not taken from a site with known contaminants.There are numerous points in the transfer process for debris to be removed;we agree it can be done better. Erisman—Her understanding of sediment transport is that boulders drop out and remain due to size;there is a large number of large boulders and she can't believe they were all transported to the SBPF site in one week. Dunk—Wave energy in large storm events can move boulders;we see that regularly. He received notice on Monday of this meeting;and based upon last month's discussion he prepared the protocol,which initially he was going to submit for next week's meeting.He has come up with a draft that is in the record. Phillips—Asked in what order the Commission want to discuss this with there being other issues about sand grain size and type.We are talking about violations. Erisman—Mr.Carlson's report speaks to sediment analysis. Dunk—From the Sieve Analysis,he understands that the sand goes from the source site to the sandlot,where it is stockpiled;it is trucked from that point to the bluff. Also,it is possible for sand to go directly from the source site but no sand goes to the bluff until after the analysis. Page 1of4 ConCom Minutes for December 11,2019,adopted Dec. 16 Phillips—About the microbes,kids roll around on the beach and beach goers can end up ingesting sand.We need to be certain our beaches are clean. Engelbourg—Pointed out that the alkalinity of a brick is very high;as it breaks down,it raises the PH of the beach. Murphy—She walks the beach once a week with her dog and has also seen debris that hasn't been picked up. She's part of the Clean Beach crew that covers Codfish Park to the T.ighthouse;the area in front of the geo- tubes has had little for us to pick up. DA Atherton—On November 29,the Commission addressed Special Condition 27 and voted that SBPF had met the failure of that condition.We submitted a letter stating that we believe they are also in violation of Special Condition 28,which she hopes the Commission will take up next week. We are tonight addressing General Condition7; read Condition 7. Based on December 4 Mr. Carlson states he has significant concerns that the material meets criterion cited by Order of Conditions. The Commission must consider if SBPF has met the failure criteria for General Condition 7. Turcotte—SBPF has tangibly failed to uphold part of the Order of Conditions.Looking to the Commission for tangible enforcement action regardless of how the material got onto the template. Carlson—The first step is to make a finding on compliance relating to General Condition 7;if the Commission finds SBPF is not compliant, it will take action to bring it into compliance. Condition 7 isn't called out as a failure criterion;it would be called out that SBPF is not in compliance. Erisman—Based upon hers and Mr. Carlson's inspections and photos, she feels SBPF is not in compliance with Condition 7. Motion Motion to Find SBPF is not in compliance with Condition 7 in the existing amended order of conditions. (made by:Engelbourg) (seconded by:Topham) Vote Carried unanimously Carlson—That finding will now be memorialized in a document and issued out on the proper DEP form.Now you must discuss what remedial action needs to be taken through the enforcement action. Golding—Asked if Item 34A of Failure conditions would apply. Pucci—That tends to imply a failure to provide sand mitigation;here goes more to the schedule for the template and mitigation. However, you don't need to find that this condition meets a failure condition to issue an enforcement order.According to Mr. Carlson's photos,the situation is egregious regarding compatibility with what's being dumped on the template.There is also Conditions 25 requiring the sand to be compatible with the bank and beach;the photos show debris,which is not compatible. Condition 52 requires that all sand sources are provided to the Commission;should a source be added or changed,they must provide proof of compatibility through a sieve analysis prior to installation of material.It is obvious that this is a different sand source,which raises a concern about what's being dumped there.There are no conditions requiring certain tests,but they do require"clean" fill.Do to the concerns about source and type of sand,you now have a basis to require testing to remediate the condition. You would be within your jurisdiction based upon you finding and the photos requiring submission of the plan for removal and replacement of the sand with a time limit.You can also require testing after removal of the sand to prove that what is left is "clean" before anymore is dumped onto the geotubes.The enforcement order should require remediation be complete as soon as possible. Golding—Asked if microbial testing be reasonable and if it is reasonable to ask that all deliveries be stopped. Pucci—Yes;you don't want anything being delivered over what is there.The fact that the incompatible material has been delivered,you now have a reasonable concern the material on the beach is clean.Suggested looking to people with the requisite expertise for recommendations on types of testing to be requested. Engelbourg—We all know we don't want additional fill delivered until we verify what is on the beach is clean; however,the timeline for that should be short before a storm hits the uncovered CES. Erisman—They have criteria it can only be uncovered for within a certain number of days.In the condition of the template the majority of the sand from Fall deliveries needs to be removed. Engelbourg—Suggested that sand be tested before it is removed. Golding—We should have an independent,3rd-parry test for microbial and biological contamination at different depths as quickly as possible. Phillips—She struggles with how to frame this to get what we need.We should have an expert guide us about how to get what we need. Golding—We should authorize Mr.Carlson to hire a 3rd-parry expert to provide a protocol to ascertain if there is any biological contamination.That would impact what might have to be removed.It is unnecessary to have a whole-sale removal if it isn't needed. Engelbourg—This site presents a soil-testing nightmare with the built structure and layers of material piled on top of it.We don't know how deep the issue goes. Dunk—The survey provided to give an elevation of the template before any material was added,so there is a baseline.Mr.Topham mentioned clean-up of material;the question is how a contractor might remove the debris if the sand isn't contaminated. He needs to talk to an earth-working contractor who runs the equipment to figure that out. Cohen—There are ways we can demonstrate that the debris has been identified and removed to the best of our ability immediately and in the short term,so you don't have debris that could be fed out into the ocean or along the beach. Page 3 of 4 ConCom Minutes for December 11,2019,adopted Dec. 16 Erisman—Wants a deadline for removal of debris on the beach. Carlson—There are two issues related to"clean."First is the potential biologic contamination of material,we don't have a protocol in place;the burden falls on the applicant to create that and we send it for 3"-pary review. Second is the timeframe,the removal of debris can be addressed on a timeframe;developing the testing protocol and testing will take a long time.You have to take action enough to remedy the violation and prevent it from happening again.You need to give clear instruction on what you want back to remedy the violation and uphold the Order of Conditions. Erisman—Suggested a 48-hour deadline for a protocol for removal of the debris. Carlson—If they can get that to you by Friday,we can schedule another meeting to review and adopt it. Erisman—Suggested a protocol for the testing of microbial, chemical, and biological testing be due by the Wednesday December 18 meeting.We need to approve the protocols before they are implemented. Engelbourg—A lot of the protocols already exist so they can cut and paste and adapt them to come up with something that works.He thinks a draft can be done by Tuesday,December 17th. Dunk—My firm doesn't have a licensed person to create the testing protocol;we need to contact one of those companies to arrange it be done. Carlson—As a public entity,we also have to provide enough time for the public to also review the protocols. Phillips—We are stopping all future deliveries,but Mother Nature isn't predictable,so we want deliveries of sand to start up as soon as possible. Dunk— Currently native-looking, compliant sand is on top of the template; trying to balance keeping tubes covered while concurrently implementing this program, the top layer on the template would be suitable for covering the tubes. Erisman—We do not want any questionable contaminated material being pushed onto the beach;she witnessed that happening on Saturday,December 7.Chemical-biological testing should probably include the linear area of the beach and near-shore environment as well as the beach. Thinks it's also important to document the type and weight of material being removed. Carlson—Reviewed the enforcement order instructions:Debris removal protocol by close of business Friday to be discussed in a meeting on December 16th;Chemical-biological protocol for the template,beach,and near- shore area by the December 18 meeting;Daily inspections for debris removal and documentation for all to be removed;Cease and desist in all other activities until this is resolved to the Commission's satisfaction.Any time we issue out an enforcement order, we use the official DEP form; this is an open enforcement, so further conditions can be added.Noted that the Commission has the legal ability to request any review be funded by the applicant. Noted other CES sites,which require nourishment,that he has photographed.One site on the inner harbor he is looking to address;he is in communication with that applicant to attend a January meeting. Next hearing Monday,December 16,2019;4:00 p.m.at 4 Fairgrounds Road Training Room. Wednesday,December 18,2019;5:00 p.m.at 4 Fairgrounds Road Training Room. Motion Motion to Issue the Enforcement as Conditioned. (made by:Engelbourg) (seconded by:LaFleur) Vote Carried unanimously Adjourned at 6:00 p.m.by unanimous consent. Submitted by: Terry L.Norton Page 4 of 4 ConCom Minutes for December 11,2019,adopted Dec. 16 Golding—He wants to establish whether or not SBPF accepts responsibility for the material on the template no matter how it got there and that they will remove it.Post March-April 2018,the material being delivered to the bluff is different in color and grain size from what was initially used,and now we have an issue with debris. Cohen—SBPF agrees some debris is from their sand but there are other sources of debris as well.The color of the sand can be attributed to a number of factors. Dunk—Item Nr. 2 in the protocol addresses Mr.Golding's concern. Cited the three sources for the debris in the sand;he'd like to discuss the sand management protocol he is proposing to clean material out of the sand. Discussion about removing material out of the bluff before it falls onto the template. Dunk—Reviewed his proposed protocol for ensuring sand going on the template is clean and compatible.Part of the SBPF protocol is to inspect the template weekly and remove debris. Erisman—Finds this an egregious violation of the order. Her photos were of the template only and it was falling from the top of the bluff with no one who was working there picking it up;it then spread throughout the template.Pointed out that there were sand deliveries after she took photos that would have covered up what she saw. Dunk—Last Thursday,contractors were actively working to cover exposed tubes and remove materials from the template. Cohen—We can break it down to ensure sand is coming from an acceptable site and that the debris is removed before it reaches the template.He believes these protocols will accomplish that. Topham—The truck drivers are dumping and not looking.Workers on the template need to remove debris the instant they see it. Dunk— The Spearhead Road borrow pit is a source of some of the debris. Because of that,we had more expensive testing done on the sand. Engelbourg—Appreciates what SBPF is saying,but he thinks we are missing the level of specificity indicated in the Order of Conditions;read the appropriate condition.Both are saying it is highly likely some of the debris is coming from SBPF fill.We need to ensure that all the fill is categorically clean. Dunk—SBPF is working very hard to comply with the order.We acknowledge there is material that hasn't met that standard and are working to avoid that from this point on.The material placed today was very clean and uniform;it obviously went through the Sieve Analysis and looked like native sand.He agrees with Mr.Golding's statement about post 2018 sand;reiterated that SBPF is working hard to meet the conditions. Golding—Mr.Dunk is saying SBPF doesn't have complete control over the delivery site,which wasn't an issue until recently;his answer to that is to shut down sand delivery until SBPF does have that control.Mr.Dunk said land-based sand should have a different standard than sea-based sand. Dunk—He said we need to take that guidance that's developed for dredged material and use it as a framework for land-based sand. Golding—From our point of view sand needs to be compatible with the bluff and beach. Dunk—The standard is for the sand to be compatible with the beach for beach nourishment.The frame work of due diligence and testing is the proper frame to modify that.SBPF can't control other people using the access road. Golding—The Baxter Road sand delivery point is private property. Erisman—SBPF should not continue to dump material until they figure out where the contamination is coming from.We asked about some of the sources at the last meeting;the SBPF contractor said you didn't need further control.We then learn one site was the site of a former septic field.Wants to know how ConCom will know that site isn't being used again. Dunk—The material from the septic site was not accepted by SBPF. Cohen—We can provide information on the source sites.We don't know how much of the problem was caused by SBPF; we are taking the necessary action to ensure the sand is clean and compatible and have plans to implement policies to further that effort. Engelbourg—There are two issues:what's on the template now and planning for the future.We need to focus on the potential violation. Phillips—We have two of six years where we are concerned about there having been a violation;also there is an on-going responsibility by SBPF to ensure only clean sand shows up on the template and Town beach,which is publicly owned. She doesn't feel confident that has been done,and we have a lot of data indicating it hasn't been done.The beach is supposed to be walkable and accessible for the whole Island;there has been a lack of attention to ensuring that is maintained,and SBPF taking responsibility. Cohen—SBPF is also concerned and wants to ensure sand going forward is clean and the site is remediated. The question is how to do that without disturbing the bank,geotubes,and beach. Topham—He wants to see someone inspecting the template every day,not just once a week. Cohen—We can formalize that. Erisman—Opened the discussion to the public at 5:00 p.m. Vaillancourt—She has concerns about potential septic contamination.The photos indicate the fill is not clean and not from an undisturbed pit on the Island. If sand came from a former septic field,the question is what sort of microbes are in the sand which won't be sieved out;they won't be killed by the sand being left out in the sun.You wouldn't want to sit on that beach.She's happy to hear they are increasing testing;but the concern is the state of the beach now. Page 2 of 4