Don’t Flush the Sewer Commissioners

Don’t Flush the Sewer Commissioners

The following is an editorial written by former Sewer Commissioner Peter Farrell. [items within brackets have been added] See you at the end. JMF

  Article six of the Special Town Meeting to be held on Nov 16^th [2009] at the Middle School Auditorium asks Templeton voters for Special Legislation to eliminate the sewer commissioners and place those duties with the selectmen. The Town of Templeton currently has qualified individuals in charge of the sewer system.  Two out of three commissioners hold the highest license in the wastewater field.  The qualifications to hold a grade VII wastewater license require both education and time in the profession. There is no one remotely qualified on the Board of Selectmen to oversee the Sewer Department compared to the two Sewer Commissioners that hold the highest license in the field.  These qualifications are what got these current Sewer Commissioners elected to office.  There will be no election involved with this Special Legislation. What events have transpired to bring this article before town meeting?  What is the history of this article involving Special Legislation?  Who stands to benefit by this change? Who stands to lose?

   

  On Oct. 14^th 2009 the Sewer Commissioners (Commissioners) was told at a Board of Selectmen (BOS) meeting that the BOS had decided to eliminate the Commissioners with Special Legislation because of the unfairness of the EDU billing system.  The BOS said it wasn’t fair and people were upset.  The BOS also mentioned that they would like to move all sewer debt on to the fifteen hundred sewer ratepayers once the BOS become sewer commissioners.

   

 Make no mistakes, once this article is passed at STM the Commissioners which were established by vote of the Town at the May 8 1976 Annual Town Meeting “Article XXXXII” will be history, it will only be a matter of time before the Sewer Commissioners are no more.

   

 Based on the approximately $600,000 debt, sewer customers can expect their sewer bill to double.  What the chairman of the BOS [Jerry Skelton] did for your water bill he will now do for your sewer bill.  Your sewer bill will be going up in a short period of time once the BOS are running the show. 

   

 The Sewer Commissioners agree with the BOS that the EDU billing system is not fair and has said so at public meetings.  When the Commissioners questioned why their article to have the Light and Water resume billing for the sewer customers (which would revert the billing back to the more fair system of billing) was left off the STM, the Commissioners were told that it is illegal to force one department to do the billing for another department.  When asked for proof of this statement the Commissioners was told proof of this statement was on its way within a week. 

    

The Commissioners not receiving proof from the BOS office contacted the Municipal Law Unit a Division of The State Attorney Generals Office in Springfield.  The Commissioners was told that the wording for the article regarding the billing looked fine but to check with the Department of Revenue(DOR) for financial questions concerning the article.  The Commissioners contacted Chris Hinchey of the DOR and explained the antagonistic situation that existed in town concerning the billing.  Mr. Hinchey said that he could see nothing wrong with the article to have the Light and Water Department do the billing for the Sewer Customers.   I then personally contacted the chairman of the advisory board[Linda McClure] and explained to her the situation.  I was hoping she would see that it was the Selectmen who were responsible for keeping the article to have the Light and Water resume the billing off of the STM warrant.  Her mind seemed made up, that we needed to move forward and that the selectmen should take over the sewer department with their Special Legislation. I asked the chairman of the advisory board to contact our Superintendent at the treatment plant if she did not believe me in regards to contacting the state agencies and their opinion on the billing article.  The chairman of the advisory board does not seem to want to get involved with this financial matter. 

It appears that there was nothing wrong with our article to have the Light and Water Department do the billing for the sewer customers.   The article to have Light and Water do our billing was not illegal.  The BOS left the article off of the STM to incite the vote against the Sewer Commissioners to punish them- punish them for looking after the sewer ratepayer’s interest for the last five years.  

    

It will be the fifteen hundred sewer ratepayers who will be ultimately punished financially if the BOS takes over the sewer department.  Sounds like politics to me. 

    

As a taxpayer I believe the town should be looking at a Department of Public Works (DPW) system where resources are shared equally among all departments. I have spoken to this at public meetings.  The recommendation by the Department of Local Services would put the Town Administrator in charge of the day to day running of this type DPW government structure.  

What is the history of this Special Town Meeting Article to eliminate the Sewer Commissioners?      

In a recent editorial by fellow writer Jeffrey Bennett entitled “Time for a change in Templeton appears at hand” many dates and money figures were cropped over the last two years from TGN to build a case for eliminating the Sewer Commissioners.  It appeared that an even dozen dates and times from past articles were chosen by Mr. Bennett to build a case against the commissioners. 

     The problem with using newspaper articles is that they are less factual than court documents and legal opinions.  Because one reporter is covering many different topics in different towns at the same time, it is difficult to take the time to truly know what is being reported.  

     It is the intention of this Sewer Commissioner to point out court documents and legal opinions to show that the Selectmen’s office interfered in the case heard before Judge Cornetta in Worcester Superior Court on or around April of 2005, that Erving was a party to the 1974 wastewater treatment plant contract and the contract expires after October of 2009.

     The amount of money the town has lost in damages arising from the wastewater treatment plant (WWTP) contract according to the Federal portion of this lawsuit is between ten to thirty million-dollars.  This money is allegedly Erving’s cost of dong business in Templeton and will now have to be made up for by the town’s ratepayers, all fifteen hundred if the BOS has their way.  

      Simply put, Judge Cornetta ruled in April of 2005 (case 02-2424C) that Erving was not a party to the contract and that the contract to operate and maintain the wastewater treatment plant ended in 2004 thirty years after being signed in March of 1974.  Another judgment in case 02-2424C concerned an illegal contract transfer in 1991 that omitted the Town of Templeton. Current town counsel (K&P) oversaw this illegal contract transfer concerning the WWTP contract back in 1991.  The town of Templeton should have been on that contract in 1991 and K&P left them off.    

     There was only one commissioner in town that reviewed the twenty thousand pages of documents that comprised the Federal Lawsuit.  In that lawsuit (US district Court, Civil Action No. 96-40140-NMG) Federal Judge Nathanial Gorton found Erving Paper Mills to be a party to the lawsuit and that the contract between Erving and the Town of Templeton ended thirty years after the wastewater treatment plant became operational.  The WWTP became operational in 1979.  1979 + 30 years = 2009.

     To double check the veracity of Judge Gorton’s decisions, the reader only needs to read section XIII of the WWTP contract and then cross reference that section with Docket No. 98-P-1329 Parties Erving Paper Mills Corporation & another (1) vs. Commissioner of Revenue between the dates 12/7/98 and 3/23/2000.  These documents show that until roughly November of this year the town of Templeton should have been receiving Industrial Cost Recovery payments from Erving Paper Mills.  The length of the WWTP contract corresponded with the length of the Industrial Cost Recovery Act (ICR) repayment.  The ICR  $4.8 million dollars should have been returned to the town of Templeton through payment by Erving to the Town of Templeton over a thirty year period.

     This provision of the Clean Water Act of 1972 (PL 92-500) was rescinded in 1980. The town never saw a dime of the 4.8 million dollars.

     In April of 1996, the BOS in Templeton placed the Sewer Commissioners in charge of among other things the prosecution of the lawsuit involving the WWTP.  The vote stated the BOS move to the extent necessary, assign any cause of action it may have under the WWTP contract to the Sewer Commissioners in accordance with the vote of the Town at the May 8, 1976 Annual Town Meeting, “Article XXXXII”.   That vote in May of 1976 referred to Ch 41 Section 65 which states generally that if Sewer Commissioners be chosen then they shall act as selectmen in matters of sewer.  The Sewer Commissioners did indeed act as selectmen in matters of sewer for the next eight years.  The commissioners contracted with lawyers to write the User Charge Regulations according to 40CFR 35.929. They hired lawyers to do legal work on Phase IVC of the town’s sewer extensions.  The commissioners also worked with town engineers Earth Tech just like the selectmen would have involving phase IVC.  From 1996 to 2004 the sewer commissioners heard nothing from the BOS. 

    Town voters will find nothing concerning the lawsuit involving the WWTP contract in any of the Annual Reports from 1996 to 2006.  Article VII- Legal Affairs Section 3. of our bylaws states: The Selectmen in their annual report shall state what actions have been brought against and on behalf of the town, what cases have been compromised or settled, and the current standing of all suits at law involving the town or any of its interests.  The BOS had so little to do with the Commissioners and their legal affairs that they did not even report to the town in the Annual Report the largest lawsuit the town has ever been involved with, by far.   

     Judge Fox in Graves Law Office, P.C. Plaintiff vs. Town of Templeton Defendants docket No. 0863CV53 agrees on page 4 that the Sewer Commissioners had the right to prosecute the case involving the WWTP contract.  Judge Fox ruled that when the case was settled with Erving in early 2006 the Sewer Commissioners authority was done. 

     That settlement in early 2006 counted on the fact that the contract was over in 2004 and that Erving was not a party to the contract.  Facts from the Federal case 96-40140 and other evidence that was omitted by K&P and the selectmen’s office contradict the findings of Judge Cornetta in case 02-2424C.

    Because the Sewer Commission believed the following: that there was still a valid contract in place; believed that Erving was a party to that contract; believed that the vote taken on April 8, 1996 had not been rescinded by the BOS - they proceeded to contract with Attorney Graves to look into what had gone wrong with the court case involving the WWTP contract and especially possible malpractice involving K&P. The commission hired Attorney Graves to protect the interest of the town especially in regards to the Grant Conditions (EPA Grant Assistance # C-250306010) which accompanied the 4.8 million dollars to build a WWTP for Erving [ Paper Mills ie: Baldwinville Products]. 

     In a letter written by David Chin an Environmental Engineer from the Municipal Assistance Unit, the town is reminded of the February 17, 2000 EPA memo that addresses user charge system requirements for those municipalities which received Construction Grants Program (Title II of the Clean Water Act) funding that Templeton received.  Mr. Chin continues, “ Please refer to page 2 of this enclosed memo which states that Title II user charge systems requirements continue to apply even though the construction grant was awarded many years ago. 

     It was Attorney Graves that opened the Commissions eyes in regards to possible interference from the Selectmen’s office.  This alleged interference is located in the court Deposition of William Hewig III. (June 2005) taken after Judge Cornetta’s decision (02-2424c) in April of 2005. 

     The alleged interference by some members of the BOS and town coordinator in late 2004 acting in a unilateral manner comes in the form of the selectmen’s office being unable to find key witness Dana Putnam a past selectmen (signed WWTP contract in March of 1974) and their inability to find the town meeting vote from January 26 1974 authorizing the selectmen to enter into a contract with Erving Paper Mills. 

     After being contacted by K&P in May of 2005 to hear the Judges decision in case 02-2424C and told by K&P that our key witness Mr. Putnam had passed away I got on the phone and contacted Mr. Putnam in ten minutes.  I was having my doubts about K&P’s legal work.  

     There is also dialog in Mr. Hewig’s deposition showing that the Federal Court case (96-40140) had been omitted as evidence. The town had spent one million dollars to have this evidence.  Evidence that showed Erving Paper Mills being a party to the contract, evidence showing the contract ending on or after 2009 and evidence showing the contract transfer involving K&P[ Assignee & Assumption Agreement] in 1991 was troublesome.   

    Mr. Putnam, a long time selectmen, in his affidavit reaffirmed Erving being a party to the contract.  Mr. Putnam also alluded to the Industrial Cost Recovery Act (ICR) that is explained in depth in Revenue Docket No. 98-P-1329 that proves the contract expires 30 years after the plant became operational in 1979.  

    Mr. Putnam also pointed to the January 26 1974 STM authorizing the selectmen to enter into a contractual agreement with Erving Paper Mills.  Those who wish to verify my facts should consult the 1974 annual report page 51 Article 6 and 7 and again page 54 article 7.

    I personally know of Mr. Putnam’s affidavit because I personally delivered it to Mr. Putnam and picked it up in 2005 at his auction house in Winchendon across from Bellettes Lumber.  It was important to get Mr. Putnam’s testimony down on paper, as he was terminally ill.  K&P seemed to be dragging their feet in regards to Mr. Putnam’s affidavit.

     Interestingly K&P never mentioned anything in Mr. Putnam’s affidavit concerning Judge Cornetta’s decision involving the March 1991 contract transfer.  Mr. Putnam would have known that K&P were town attorneys at the time and may have been able to elaborate on K&P’s alleged negligence. 

     There are piles more documents that back up the commissioner’s opinion that Erving was a party to the contract. That the WWTP contract ends in late 2009.  That K&P left the town of Templeton and Erving Paper Mills off the contract transfer in 1991.   These documents are worthless, if there is no one looking for the truth.

     After the settlement in early 2006 the Commissioners made a point to remind the BOS that K&P had a conflict of interest involving the matter of investigating what went wrong with case 02-2424C.  The Selectmen decided to take no action to protect the town’s interest regarding the Grant Conditions.  The BOS turned their backs on the Commissioners and the sewer ratepayers as well as the tax paying public. 

     Still having the Selectmen’s vote from 4/8/96 which had not been rescinded the Commissioners decided to hire Attorney Graves.  And here we are. 

Who stands to benefit from this article to eliminate the Sewer Commissioners?

    

Money currently in the Sewer Enterprise Reserve Account will quickly be used for town purposes, pay raises for municipal employees, money for more studies, perhaps a new municipal building or other town charges. Having a new way to raise money (sewer rates) the selectmen can become creative.  Many favors can be handed out to contractors who do business with the town through the sewer department. Currently there are checks and balances in place in town government.  Some of those checks and balances will be lost.  In the hands of the ethically challenged, those challenged individuals can make money and exchange favors down at the treatment plant. 

Who stands to lose?

The Sewer Customers will be the big losers when the sewer debt is moved off the tax rate and placed on the sewer user.  The town voters at town meetings and at the ballot box created the current debt structure.  Currently 25% of the debt is placed upon the sewer user and 75% is picked up as taxation.  These sewers projects support our schools, nursing homes, churches, businesses and industries.  Cleaning up Mother Nature makes enjoying canoeing, kayaking, hunting and fishing and other water related outdoor activities a reality.  We as a town gave our word on how we wanted our votes to go in regards to the debt structure.  Now there are those who would have us go back on our word to the sewer users. 

      After losing out on the 4.8 million dollars from the ICR and then another 10-30 million dollars due to the alleged interference from the selectmen’s office acting in a unilateral manner in regards to the wastewater treatment plant contract the sewer customers will be asked by the selectmen to shoulder the cost burden. The willing horse will carry the load.  

 

     

     

     I realize that people are busy and probably won’t be there at Special Town Meeting (to be held on November 16^th at the Narragansett Middle School Auditorium) to support the sewer commissioners, as we will be disposed of much like flushing your toilet. Remember since 1976, we have been there for you through thick and thin. 

     Sometimes you don’t know what you’ve got till its gone. 

Pete Farrell

Sewer Commissioner

Town of Templeton978-939-2501

24 Myrtle St.

Baldwinville Ma.01436                

JMF- In 2009, the technology was not sufficiently advanced to allow hyperlinks to large documents. I have included links where I have documents available. Enjoy!

List of document links

Case 02-2424C  Cornetta

Appeals Federal Judge Nathanial Gorton

WWTP contract – wastewater treatment contract

Docket No. 98-P-1329  Industrial Cost Recovery Act and DOR

Meeting minutes regarding User Charge regs

Deposition of William Hewig III. – K&P attorney working and paid for by Sewer Commissioners [18 references to Skelton see index]

[Assignee & Assumption Agreement – brought to you by Attorney John Giorgio of K&P

Mr. Putnam’s affidavit- indicating Erving is a party to the contract

BOS vote from 4/8/96- giving the Sewer commissioners authority to pursue legal action in all things sewer.

An added bonus

A Brief History of Erving Paper Mills

Consent decree – United States of America, plaintiff v. Baldwinville Products + Erving Industries, Inc. In 2007, Erving Industries was fined $215,000 by the US government for polluting the Otter River when doing business as Baldwinville Products. It would appear the US government feels Erving is a party to the contract. Why won’t the US government enforce their own rules regs. regarding the WWTP?

So, Mr. O’Brien , I hope this answers your question about why I do not want to be a sewer commissioner. Very… different… situation.

As you can determine from the warrant for the STM held on November 16, 2009, Article 6 was submitted by the BOS to take over the Sewer Commission. The article in 2009 was not a citizen petition to take over Light and Water, although the wording is very similar. I am assuming K&P wrote the language for Article 6 in 2009; they were our town counsel.

I will state again: “ I do NOT want to be a Sewer Commissioner”.

Mostly my opinion…supported by FACTS ! ! !

Julie Farrell