Open Meeting complaints filed over toxic waste cleanup plan

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Several residents have filed complaints alleging that the Select Boards in Lenox and Stockbridge violated the Open Meeting Law when they voted unanimously behind closed doors to approve the mediated settlement for an EPA-GE Rest of River cleanup.

In Lenox, the three allegations filed with state Attorney General Maura Healey's office focused on the inclusion of a PCB waste disposal site for low-level toxic material in a Lee landfill, across the river from Lenox Dale.

"It is the belief of the community that the select boards acted under intense pressure from GE and the EPA to make a quick decision and accept this agreement, which knowingly violated the trust and welfare of their constituents," Deanna Markham of Lenox Dale wrote in her violation notice.  Markham asked the Select Board to withdraw its consent to the settlement until the public can consider it more closely. She also called for release of the executive session minutes and for an investigation "around what pressures GE, EPA or their lawyers put on the other parties to the mediation."

The complaint filed by Sage Radachowsky of Lenox Dale alleged that the Select Board intentionally committed two violations by holding its discussion and vote on the mediated settlement behind closed doors and by declining to make public the minutes. He also claimed that advice given by town counsel to the Select Board "was wrong" and asked that the agreement be nullified and the minutes of the Feb. 5 executive session be released.

In her complaint, Virginia Schwerin of Lenox Dale asked that the settlement be overturned, the meeting minutes released and an investigation be launched into "pressures" imposed by GE, EPA or their lawyers" on the local boards.

"We feel there has been no Open Meeting Law violation," said Lenox Select Board Chairman Edward Lane at last week's Town Hall meeting. He added that the complaints have been forwarded to Town Counsel Joel Bard of KP Law in Boston.

An open meeting in Lenox Memorial Middle and High School's Duffin Theater held on Dec. 3, 2018, was heavily attended and included information on the start of the mediation effort, Selectwoman Marybeth Mitts pointed out. "Everyone knew this mediation was starting, and it was very well-publicized," she said.

Stockbridge complaints

In Stockbridge, two complaints were received alleging Open Meeting Law violations by the Select Board at its Feb. 4 executive session.

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Resident Megan Carlotta accused the board of "no open meeting transparency" during the board's unanimous approval of the mediated settlement. She also alleged a conflict of interest because the town accepted "millions of dollars in payouts from GE in exchange for a toxic waste dump." The five South County towns received $55 million, split into $25 million each for Lee and Lenox, and just over $1.5 million each for Stockbridge, Great Barrington and Sheffield.

Selectwoman Roxanne McCaffrey said, "This was no quid pro quo; there was not an exchange," noting that instead of three dumps as originally proposed by GE, there would be one, and most of the toxic material would be shipped out of state.

Select Board Chairman Terry Flynn said there was no conflict of interest under the state ethics law, per advice of counsel. 

He also denied Carlotta's allegation that any outside pressure was placed on the Select Board. Flynn also pointed out that the entire mediation negotiations were strictly confidential until the agreement was completed, approved and signed by the Select Boards of all five towns, as well as GE and EPA officials and other parties to the settlement. "That restricted us from having a lot of prior discussion."

A complaint lodged by Jennifer Andrews covered mostly similar ground.

Acknowledged error in posting

Interim Town Administrator Mark Webber noted that "the only Open Meeting Law issue here is a procedural flaw to the posting, and I accept full responsibility for that. There was no intent to circumvent the process, or be sneaky or be cute." Webber explained that the posting for the executive session was correct except to specifically state the parties involved — GE and EPA — in the mediation or litigation involved in the settlement negotiations.

On advice of Town Counsel J. Raymond Miyares, Flynn said, the Select Board cannot legally rescind its approval of the settlement, but it could consider releasing minutes of the Feb. 4 executive session. Miyares will prepare a formal response for review by the board.

Clarence Fanto can be reached at cfanto@yahoo.com, on Twitter @BE_cfanto or at 413-637-2551.


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