July 26, 2021
Via Electronic Mail
Erin Perry Deputy Director Cape Cod Commission P.O. Box 226 Barnstable, MA 02630
Re: Town of Bourne (Bourne), Department of Integrated Solid Waste Management, Integrated Solid Waste Management Facility (Facility, or Ash Landfill), Development of Regional Impact (DRI) Application for the Phase 7, Phase 8, and Phase 9 Landfill Expansion, EEA No. 11333
Dear Deputy Director Perry:
Conservation Law Foundation (CLF), Beyond Plastics, Clean Water Action, Community Action Works, the Global Alliance for Incinerator Alternatives, MASSPIRG, Saugus Action Volunteers for the Environment, Sierra Club, and Sustainable Practices respectfully submit these initial abbreviated comments in opposition to the Town of Bourne’s DRI application for the Phase 7, 8, and 9 Integrated Solid Waste Management Facility expansion. We will submit more comprehensive comments after the public hearing is completed.
We oppose the expansion of the Town of Bourne’s Ash Landfill. We also recommend that the Cape Cod Commission require further investigation and information before issuing a decision on this large expansion that could impact the region for decades. CLF is a nonprofit, member-supported, environmental organization working to conserve natural resources, protect public health, and promote thriving communities for all in the New England region, including Massachusetts. CLF has a long history of advocating for clean air, clean water, and healthy communities, including addressing the environmental and community impacts of solid waste disposal, and advocating for waste management strategies focused on waste reduction and recycling as opposed to landfilling and incineration. Other signatory organizations share CLF’s commitment to protecting environmental resources and public health.
Introduction
1. Cape Cod Commission’s Authority
The Cape Cod Commission (CCC) must review Bourne’s proposed landfill expansion, not the Facility’s current operations, for consistency with the Cape Cod Commission Act (Act), and the Cape Cod Regional Policy Plan (RPP).1 The CCC can grant a development permit only if the proposed project under review meets certain conditions. Notably for Bourne’s landfill expansion, the project must have a greater “probable benefit” than “probable detriment” and be consistent with the Act and the RPP.2 Unlike other comparable review processes, the CCC has the authority to deny a DRI application and halt all future development. For the reasons set forth herein, Bourne’s proposed expansion of 25-acres and 5,175,000 cubic yards of capacity to its current facility poses a greater probable detriment than benefit and is inconsistent with the Act and the RPP.3 Therefore, the CCC should disapprove Bourne’s DRI application.
2. Proposed Expansion
The Bourne Landfill is comprised of a 111-acre parcel located at 201 MacArthur Boulevard in Bourne, Massachusetts.4 The Facility contains both lined and unlined waste disposal areas. Phase 6 is the last phase which will complete the horizontal expansion of landfill operations on the original 74-acre site.5
1 The Cape Cod Commission Act, St.1989, c. 716, § 13(d)(1). 2 Id. at § 6(c)(viii). 3 The Cape Cod Commission Act, St.1989, c. 716, § 13(d)(1). 4 Final Comprehensive Site Assessment (June 5, 2017), at 2 [hereinafter CSA]. 5 Single Supplemental Environmental Impact Report, supra note 1, at 3.
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In 2001, Bourne purchased a 25-acre parcel immediately abutting the landfill to the south.6 This parcel has been site-assigned for solid waste handling and transfer operations.7 Thus far, this parcel has only been used for recycling and transfer operations. 8In 2016, Bourne purchased an approximately 12-acre parcel to the south of the 25-acre parcel.9 Bourne intends to relocate the handling facility onto a portion of the 12-acre parcel so that Phases 7 and 8 can be fully developed on the 25-acre site.10 Bourne is proposing a 25-acre vertical and horizontal landfill expansion and the relocation of the solid waste handling facility and other offices and facilities on the property. The three-phase expansion will provide a total of 5,175,000 cubic yards (cy) of disposal capacity through 2040.11
3. Tonnage Bourne Ash Landfill is Actually Accepting
In 2015, Bourne signed a long-term contract with Covanta SEMASS (SEMASS), a municipal waste combustor located in Rochester, MA, which shifted the Facility’s waste stream to predominantly ash.12 Under the contract, approximately 86% of the landfill’s permitted annual capacity (189,000 tons out of 219,000 tons per year) is reserved exclusively for ash through 2021.13 The remaining capacity is available for MSW disposal for Bourne and for Falmouth under a ten-year contract.14 ISWM and Covanta are currently in active negotiations to extend their contract. Under Bourne’s “Preferred Alternative” approach, the contract will extend, and the Town will continue to accept up to 230,000 tons per year of ash15 and 30,000 tons per year of MSW from Bourne and Falmouth.16 However, Bourne ISWM actually accepts much more ash each year. Every year 43,478 tons of “Bottom” Ash, and as much as 50,000 tons of contaminated soil and “other” materials, are disposed of at the Bourne Landfill as “cover.”1 For a predominantly ash landfill to use that much cover is ridiculous – until one remembers that ISWM can charge for cover materials. In 2019 about a third of what was buried at the landfill was cover (96,324 tons of cover for 207,987 tons of permitted waste, for a total of over 300,000 tons).1 Incinerator ash is dangerous to human health, public safety, and the environment. These toxic compounds include dioxins, polychlorinated biphenyls (PCBs), polychlorinated
6 Id. 7 Id.
9 Id. 10 Id. 11 Town of Bourne, Expanded NPC Certificate (Apr. 24, 2020), at 2. 12 Id. 13 Id. 14 Id. at 11. 15 As discussed more fully below, Bourne accepts approximately 44,000 tons of bottom ash each year. Therefore, the total amount of ash accepted by Bourne is over 230,000 tons every year, significantly more than the stated 189,000 tons. 16 Single Supplemental Environmental Impact Report, supra note 1, at 10.
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naphthalenes (PCNs), and heavy metals, including lead, mercury, cadmium, and arsenic.17 Dioxins have been described as the most toxic chemicals known to mankind and are recognized human carcinogens. Lead is known to cause cognitive and behavioral development in children. Mercury is known for its adverse impacts on the central nervous system, kidneys, and developing fetus. All of these compounds are known to be toxic to humans and animals.18 The Town’s DRI application should be disapproved until a careful investigation is made into exactly what kind of ash they are disposing of and what this ash is comprised of, and all of it should be included as waste, not cover..
The Proposed Expansion is Not Consistent With the RPP
1. The Proposed Landfill Expansion is Not Consistent with either of RPP’s Waste Management Goal Objectives The RPP asserts a waste management goal, supported by two objectives:
Waste Management (WM) Goal: “To promote a sustainable solid waste management system for the region that protects public health, safety, and the environment and supports the economy.” WM Objective 1 (“Objective WM1”): “Reduce waste and waste disposal by promoting waste diversion and other Zero Waste initiatives.” WM Objective 2 (“Objective WM2”): “Support an integrated solid waste management system.”19 • ISWM is asserting that there is a need for additional capacity at the Bourne Landfill due to future reductions in regional capacity. Increasing regional capacity, however, runs directly counter to the RPP’s goal of “promoting a sustainable solid waste management system for the region that protects public health, safety, and the environment and supports the economy,” and its stated objective to “reduce waste and waste disposal by promoting waste diversion and other Zero Waste initiatives.”20 It also runs counter to MassDEP’s 2010-2020 Solid Waste Master Plan and Draft 2030 Solid Waste Master Plan goals to reduce solid waste disposal.21 • The expansion of the Bourne Landfill is not just about landfill capacity – it is about allowing Covanta SEMASS in Rochester, Massachusetts to burn up to 1.25 million tons
17 Jeremy Thompson & Honor Anthony, The Health Effects of Waste Incinerators, Report of the British Society for Ecological Medicine, 42-44 (2d ed. 2008), available at https://www.ipcn.nsw.gov.au/resources/pac/media/files/pac/project-submissions/2018/04/eastern-creek-energy- from-waste-facility-ssd-6236/20180521t165555/incinerator-report-health-effects-british-society-for-medicine.pdf. 18 Id. 19 Cape Cod Commission, Cape Cod Regional Policy Plan (2018), at 62. 20 Cape Cod Regional Policy Plan, supra note 32. 21 MassDEP, Draft for Public Comment: Massachusetts 2030 Solid Waste Master Plan, 6-7 (Sept. 2019), available at https://www.mass.gov/doc/draft-2030-solid-waste-master-plan/download.
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per year of MSW.22 Burning MSW is dangerous, polluting, expensive, a waste of resources, an inefficient manner to generate electricity, and horrible for the climate. If Massachusetts is to meet any of its long-term climate goals, then its seven incinerators, including SEMASS, will have to be shut down. • Furthermore, if MassDEP enforced existing state regulations, SEMASS and the expansion of the Bourne Landfill would be unnecessary. Unfortunately, according to MassDEP, almost 40%, or over 2 million tons, of disposed items in Massachusetts are Waste Ban Items.23 There are not enough dedicated Waste Ban inspectors at MassDEP, and enforcement has been spotty at best. No disposal facility should be expanded in Massachusetts until MassDEP reduces disposal by enforcing existing Waste Ban regulations. • Much of the waste burned at SEMASS – paper/cardboard, metal, glass, some plastic, some construction and demolition material, and some organics, are also Waste Ban Items. If the Waste Ban materials alone were diverted from the incinerator, SEMASS could burn at least 40% less and extend the life of the landfill where it buries its ash.24 The Town has not demonstrated a need for the proposed expansion and the expansion is not consistent with the RPP’s goals and objectives of promoting a sustainable solid waste management system and promoting waste diversion and other Zero Waste initiatives. Therefore, the DRI should be disapproved.
Objective WM2, which serves as a strategic stepping stone to a Zero Waste future, says that “preserving the scarce, remaining solid waste disposal capacity that is part of such system is critical for the health of the Cape Cod community, environment and economy.”25 Both the Town of Bourne and the CCC rely on this “necessity” reasoning to justify the proposed expansion. Both parties misconstrue “preservation” to mean “expansion” and disregard known and potential negative consequences for public health and the environment, further discussed below. Based on the danger posed by the current state of Bourne landfill, an expansion should be out of the question. Moreover, approving this expansion without sufficient investigation into these issues violates the spirit of the Act and the RPP.
2. The Proposed Landfill Expansion is Not Consistent with the RPP’s Water Resources Goal
22 Id. 23 MassDEP, Massachusetts Waste Bans as a Tool to Drive Waste Reduction (June 2016), available at https://www.mass.gov/guides/massdep-waste-disposal-bans. 24 See SAK Environmental, LLC, Covanta SEMASS 2019 Waste Characterization Study in Support of Class II Recycling Program, 2-11 (Feb. 11, 2020), available at https://www.mass.gov/doc/class-ii-recycling-program-waste- characterization-study-april-2020-3/download. 25 Cape Cod Commission, Waste Management Technical Bulletin, at 10.
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The RPP sets out the following goal and underlying objective: “maintain a sustainable supply of high-quality untreated drinking water and protect, preserve, or restore the ecological integrity of Cape Cod’s fresh and marine surface water resources” and “protect and preserve groundwater quality.”
A. The Leachate and Groundwater at the Bourne Landfill is Likely Contaminated with PFAS.
Per and poly fluorinated alkyl substances (PFAS) are persistent organic pollutants that are found in virtually all landfills and are a serious public health concern. PFAS, or “forever chemicals,” have been going into landfills for over sixty years,26 and recent studies have identified PFAS in both fly ash and bottom ash from municipal waste incinerators at part-per- billion levels.27 These chemicals are toxic in small concentrations and cause a variety of adverse health effects, including kidney and testicular cancer; impaired liver, pancreatic, and immune system function; thyroid disease; fertility and pregnancy issues; high blood pressure; and growth and learning problems in infants and children.28 It is almost certain that not only the ash, but the leachate at the Bourne landfill is contaminated with PFAS. Moreover, Bourne’s facility leadership has functionally admitted the existence of a significant amount of PFAS present in the leachate. The facility recently secured $500,000 to launch a leachate pretreatment pilot program specifically designed to handle PFAS. The general manager, Daniel Barrett, explained that the purpose of the program is to open up more opportunities with more facilities for disposal of Bourne’s leachate.29 Motivated by increasing PFAS regulations on wastewater facilities and by improvements in technology that detects PFAS, Barrett urged for the pilot program to stay ahead of the regulatory curve.30 Thus, Bourne landfill almost certainly produces leachate contaminated with PFAS. All landfills leak and contaminate the environment. Given these facts and the fact that the leachate at the Bourne landfill is likely contaminated with PFAS, the Town should be required to enact testing protocols for the leachate and groundwater at the Landfill before the DRI application is approved. The Town Must Establish Leachate Testing Protocols for PFAS Before the DRI Application is Approved. The Town Must Establish Groundwater Testing Protocols for PFAS Before the DRI Application is Approved.
26 A.H. Huset, M.A. Barlaz, D.F. Barofsky, & J.A. Field, Quantitative Determination of Fluorochemicals in Municipal Landfill Leachates, 82 Chemosphere 1380-1386 (2011). 27 Dennis Wohlin, Analysis of PFAS in Ash from Incineration Facilities from Sweden (June 2020), Örebro University, School of Science and Technology. The Commonwealth of Massachusetts regulates 6 PFAS substances in drinking water and under the Massachusetts Contingency plan at part-per-trillion level concentrations. 28 See MassDEP, Per- and Polyfluoroalkyl Substances (PFAS), available at https://www.mass.gov/info-details/per- and-polyfluoroalkyl-substances-pfas#what-are-pfas-and-why-are-they-a-problem?-. 29 Michael J. Rausch, ISWM Head Seeks $500,000 for Wastewater Treatment Program (Nov. 4 2020), available at https://www.capenews.net/bourne/news/iswm-head-seeks-500-000-for-wastewater-treatment- program/article_c7f7832b-aaf8-5ec1-83b9-545e667bafea.html. 30 Id.
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3. The Proposed Landfill Expansion is Not Consistent with the RPP’s Climate Mitigation Goal.
Climate change driven by human activity resulting in the atmospheric accumulation of greenhouse gases poses existential threats to Cape Cod based on this landform’s origin as a remnant of previous climate conditions. Recognizing this, the RPP was amended earlier this year to integrate a new emission reduction goal and related regional performance measure:
• Climate Mitigation Goal: “To support, advance and contribute as a region to the Commonwealth’s interim and long-term greenhouse gas reduction goals and initiatives, including a state-wide net zero carbon target by 2050.” • Regional Performance Measure: “Total metric tons of carbon dioxide equivalent (MTCO2e) of greenhouse gas emissions: Greenhouse gas emissions are contributing to climate change, which threatens the natural, built and community systems on Cape Cod. The Commission developed a baseline greenhouse gas emissions inventory for the region. The inventory estimates emissions from Barnstable County for the Stationary Energy, Transportation, Industrial Processes and Product Use, Agriculture, Land Use, Land Use Change, Forestry, and Waste sectors. The inventory is reproducible through a documented methodology, and changes in each identified sector’s emissions can be tracked. Decreases in emissions will contribute to slowing the rate of climate change.”
According to the Commission’s baseline inventory, the Bourne landfill is one of the largest single sources of greenhouse gas emissions on the Cape, contributing 10,064 MTCO2e annually according to the facility’s state reporting.31 This substantial carbon footprint is attributable largely to historical operations. As Bourne acknowledges in its SSEIR, Phases 7, 8, and 9 will result in the emission of significant additional quantities of landfill gas,32 including heat-trapping methane and carbon dioxide.33
Bourne’s initial DRI filing does not substantively acknowledge the RPP’s mitigation goal and is not responsive to the critical regional need to rapidly reduce near-term emissions consistent with the Commonwealth’s “50% by 2030” goal while ensuring progress toward the 2040 target and its net zero goal by 2050. The Bourne ISWM should provide a full accounting of current and projected annual greenhouse gas emissions associated with landfill operations based on present capacity and each individual proposed phase of expansion through its projected lifetime. The analysis should cover
31 Cape Cod Commission, Cape Cod Climate Action Plan – Draft for Public Comment (Apr. 2021). 32 Landfill gas is produced by anaerobic bacteria that consume organic matter in municipal solid waste and is comprised of methane (50-55%), carbon dioxide (45-50%), and small amounts of oxygen, nitrogen, and dangerous gases such as volatile organic compounds and hydrogen sulfide. United States Environmental Protection Agency, Basic Information About Landfill Gas, available at https://www.epa.gov/lmop/basic-information-about-landfill-gas. 33 Single Supplemental Environmental Impact Report, supra note 1, at 16.
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anticipated and alternative scenarios for the incoming waste stream, including possible destinations for waste from southeastern Massachusetts other than SEMASS and the Bourne landfill. Additionally, on-site and off-site mitigation options capable of supporting ISWM operation with emissions declining toward net zero or net negative by 2050 should be identified. The DRI application should be disapproved unless and until the Town takes the above actions and demonstrates that the proposed expansion is consistent with the climate change mitigation goal in the amended RPP.
4. The Proposed Landfill Expansion is Not Consistent with the RPP’s Wildlife and Plant Habitat and Open Space Goals.
The Landfill Expansion Will Have an Adverse Impact on a Species of Special Concern. The entire 12-acre parcel and portions of the 25-acre parcel are located within mapped habitat of the Eastern Box Turtle, which is state-listed as a species of Special Concern.34 This species and its habitat are protected pursuant to the Massachusetts Endangered Species Act (MESA; MGL c.131A) and its implementing regulations (321 CMR 10.00).35
5. The Town’s Request for a Waiver of the 3:1 Mitigation Ration Requirement for Natural Areas Should be Denied.
The CCC has designated the 12-acre parcel as a Natural Area Placetype,36 which are defined as “the region’s least developed and most sensitive areas. The designation as a Natural Area requires a mitigation ration of 3:1. However, the Town is requesting a waiver of the 3:1 mitigation rate to match the NHESP mitigation rate of 1.5:1. Bourne’s request should be denied because the waiver does not meet the three conditions required by the RPP. Bourne cannot meet the first waiver requirement. The RPP dictates that a waiver cannot result in “substantial detriment or substantial derogation from the purposes and values intended to be protected or promoted by such goal or objective.”37 The waiver would be inconsistent with the RPP’s goal of preserving this sensitive land as a Natural Area38 and its strategy of “limit[ing] development to protect natural resource functions and encourage removal of development where appropriate.”39 The disadvantages substantially outweigh Bourne’s argument that the organic
34 Certificate of the Secretary of Energy and Environmental Affairs on the Expanded Notice of Project Change (Apr. 24, 2020), at 6. 35 Id. 36 Id. at 83. CCC’s RPP Data Viewer, available at https://cccommission.maps.arcgis.com/apps/MapSeries/index.html?appid=efa7276c967f48658c6190d53196ba1d. 37 Id. at 96.
39 Id.
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matter removed is anticipated to be chipped and reused as mulching or for heating.40 The Natural Area placetype designation, as described above, advocates for the lessening of development on these lands. Thus, even a landfill’s existence on a natural area placetype would be best removed to be in accordance with the RPP. A landfill expansion is two steps away from the general policies to be applied to Natural Areas. Bourne has not demonstrated compliance with the mitigation requirement, the second waiver condition. The second condition requires that the “intent of the goal or objective” still be met through an “alternate approach, including appropriate mitigation.”41 Thus, even if the Town could show the that the waiver did not cause substantial derogation from the goals and objectives of Natural Areas, it would still need to meet the intent of the goals and policies through alternate approaches. Bourne has not demonstrated appropriate mitigation steps to satisfy this standard. Bourne’s waiver request section relies on off-site mitigation practices that do not show how the parcel in question will meet the goals and objectives of Natural Areas.42 Allowing off-site mitigation goes against the RPP’s use of Placetypes to designate goals and objectives for specific areas of land. Lastly, Bourne fails to meet the third waiver condition. The RPP requires a showing of necessity in fulfilling, protecting, or promoting “another compelling regional purpose, goal, objective or value from the Act of RPP that could not be achieved without such waiver.”43 Though Bourne cites the Commission’s goal of solid waste management infrastructure as a regional goal, the DRI report fails to show how this goal cannot be achieved without the waiver. Instead, the report claims that the redesign necessary would limit the landfill’s capacity to accommodate “unforeseen interruptions.”44 Bourne’s DRI application does not meet the required conditions to obtain a waiver. Thus, it does not reach the threshold of Commission consideration. Based on the 12-acre parcel’s Natural Area placetype designation and the RPP’s goals to minimize pollution and the degradation of resources, even the consideration process should yield a rejection of Bourne’s waiver request. The careful and deliberate drafting of the Act and the RPP and would be rendered pointless if the Commission allows a landfill expansion on the most protected land designation. Conclusion Thank you for the opportunity to provide these comments. For the reasons discussed above, the signatories oppose the Landfill expansion, and respectfully request that the Commission further information and investigation before issuing the DRI decision. Barring that, the DRI should be denied.
40 The waiver request section only lists one argument relating to the goals and objectives of Natural Areas stemming from the 12-acre parcel in question. Town of Bourne, Development of Regional Impact (May 17, 2021), at 23. 41 Cape Cod Regional Policy Plan, supra note 32, at 96. 42 Bourne cites an increase in grassy areas as it closes other parts of the landfill and off-site mitigation parcels in Bourne. Town of Bourne, Development of Regional Impact (May 17, 2021), at 23-24. 43 Cape Cod Regional Policy Plan, supra note 32, at 96. 44 Development of Regional Impact, supra note 23, at 25.
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Respectfully submitted,
Erica Kyzmir-McKeon Staff Attorney Conservation Law Foundation 62 Summer Street Boston, MA 02110 [email protected] (617) 850-1763
Kirstie L. Pecci Director, Zero Waste Project Conservation Law Foundation 62 Summer Street Boston, MA 02110 [email protected] (617) 850-1717
Chris Powicki Vice Chair, Cape Cod Group Massachusetts Sierra Club 50 Federal Street, 3rd Floor Boston, MA 02110 (617) 423-5775
Sylvia Broude Executive Director Toxics Action Center 294 Washington Street, Suite 500 Boston, MA 02108 (617) 747-4407
Ann Devlin President Saugus Action Volunteers for The Environment [email protected]
Janet Domenitz Executive Director MASSPIRG 294 Washington St., Suite 500
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Boston, MA 02108 [email protected]
Judith Enck President, Beyond Plastics Former EPA Regional Administrator Bennington College One College Drive Bennington, Vermont 05201 [email protected]
Douglas Heath Vice President Saugus River Watershed Council [email protected]
Denise Patel U.S. Program Coordinator GAIA: Global Alliance for Incinerator Alternatives 1958 University Avenue Berkeley, CA 94704 [email protected] (856) 465-1211
Elizabeth Saunders Massachusetts Director Clean Water Action & Clean Water Fund 88 Broad Street, Lower Level Boston, MA 02110 (617) 333-8131 x203
Madhavi Venkatesan, PhD Executive Director Sustainable Practices [email protected] (917) 496-0440
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