More lawsuits target illegal sand mining, industrial solar in Southeastern Massachusetts

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Thursdsay Jan. 26, 2022

Illegal permits, failure by local officials, Baker Administration to enforce laws harms water, forests, public health, homes according to recent legal challenges

Illegal sand mining and reckless industrial solar development has spurred more lawsuits against towns and corporations in Southeastern Massachusetts.

The last year has seen a flurry of enforcement demands and lawsuits as the grassroots campaign Save the Pine Barrens and an alliance of groups in the region attempt to stem the destruction of water, forests, wetlands, Indigenous cultural sites by massive sand mining operations and utility scale ground mounted solar installations. The groups launched a campaign in January, 2021, prompted by the alleged “agricultural project” by Carver’s Weston family bog owners at Franklin Marsh cranberry, for a massive strip mine in Plymouth and Carver.

The public has had had enough of the closed door deals and blatant violations of the law sanctioned from by the Governor’s environmental secretary down to local town boards and officials. We are going to court to enforce the laws that are supposed to be protecting the public and the environment.

The two new lawsuits were filed on January 14, 2022 against the Carver Earth Removal Committee and Conservation Commission. A third lawsuit is pending against the Carver Zoning Board of Appeals alleging failure to enforce the zoning laws to stop AD Makepeace Company’s sand mining operations. Two additional lawsuits are pending in Wareham challenging plans by AD Makepeace and Borrego Solar to strip mine and clear-cut almost 200 acres of forest for industrial solar. Enforcement requests are also pending with Plymouth and Carver over additional sand mining including large projects proposed for wetland areas.

Below you will find links to the legal actions, photos and resources.

Lawsuit against Carver Earth Removal Committee and SLT Corp. over Spring Street sand mining expansion

On January 14, 2022, High Street residents abutting the SLT sand mining site at the intersection of Route 44 and Spring Street sued SLT, owned and operated by Peter Opachinski, and the Carver Earth Removal Committee (ERC).

The lawsuit seeks to nullify the ERC’s November 17, 2021 permit to expand the mining operation around the north side of Rickard’s Pond. The ERC first issued SLT a mining permit in 2018. That permit is the subject of a December 14, 2021 enforcement request to the Town by Save the Pine Barrens claiming the mining operation violates the Town’s Zoning Law. The request was denied and is being appealed to the Carver Zoning Board of Appeals.

The January 14, 2021 lawsuit against SLT and the ERC alleges the ERC committed multiple errors in issuing the permit under the town’s Earth Removal Bylaw including failing to notify abutters, require a bond and proper plans, and allowing expansion of a project already threatening public health via airborne silica sand, damaging the environment, and threatening water contamination. Private wells and a public water supply are nearby. This drone footage shows airborne silt from SLT on Ricket’s Pond in January, 2022.

A plaintiff in the January 14, 2022 lawsuit, Carver resident and homeowner Dorothy Pollitt said, “It is a disgrace that SLT has been given free rein  — issued permit after permit without regard to public or conservation concerns — to destroy, level, and strip mine 25 acres of pristine forest, wildlife, and the ecosystem of Rickard’s Pond.”

SLT sand mining site, Route 44 and Spring Street, Caver MA Dec. 5, 2021

Lawsuit against PineGate Renewables, Carver Conservation Commission over toxic poles at dual use solar site in wetland cranberry bogs

On January 14, 2022, an abutter to PineGate Renewables solar site using arsenic-treated wood poles filed suit in Superior Court against the Carver Conservation Commission and PineGate Renewables.

The 53-acre site is part of a complex of dual use solar sites owned by Pine Gate Renewables of North Carolina. The sites have 3,500 wood poles treated with toxic copper chromated arsenic (CCA) mounted in a wetland. The poles are about 30 feet into the sole source drinking water aquifer. 

PineGate’s $53 million “dual use” solar project was approved by the state’s SMART solar program at the Department of Energy Resources under Secretary Katie Theoharides. 

The lawsuit alleges the Conservation Commission violated the Wetlands Protection Act and Open Meeting Law and demands that the court quash the Commission’s order allowing PineGate to install the CCA poles and require public hearings in accordance with law. Drone footage of the sites is on the Save the Pine Barrens You Tube Channel. Read more on our PineGate toxic poles page.

Residents sue Carver officials, consultants for drinking water contamination

A lawsuit by North Carver residents outlines detailed events stemming from the Town’s operation of the North Carver Landfill that has led to groundwater contamination. The lawsuit alleges Carver and several town officials, including town administrator Milanowski, health agent Forgue, and consultants Landgon Environmental covered up drinking water contamination of private wells and issued false and inaccurate statements about the toxic chemical 1-4 dioxane water sampling results.

The nine count complaint filed in September 2021 includes claims based on fraud, false claims, civil conspiracy, trespass, and nuisance stemming from the 1-4 dioxane and PFAS contamination of the aquifer and drinking water supplies. A 2019 audit by the state DEP found the Town had issued false and inaccurate reports about the contamination.

The lawsuit’s allegations of fraud, civil conspiracy, and cover-ups appear to reflect a pattern of behavior by Carver public officials: distain for residents who raise concerns about public health and the environment and breach of their civic duty or worse.

North Carver Landfill: US EPA map

Lawsuit challenges Carver Zoning Board ruse to avoid addressing alleged AD Makepeace sand mining violations

The Carver Zoning Board of Appeals and AD Makepeace Co. are being sued over alleged illegal sand mining at six sites in the Town by Makepeace. Save the Pine Barrens sought enforcement of the zoning law from the Town’s building inspector, who denied the request. STPB appealed that denial to the Zoning Board of Appeals under the zoning procedure.

Save the Pine Barrens’ November 2021 lawsuit alleges the ZBA wrongfully refused to address the Makepeace zoning violations, making up rules about filing fees to prevent Save the Pine Barrens from getting a hearing and a resolution of the violations.

Makepeace’s sand mining is also governed by earth removal permits issued by the Earth Removal Committee.  Save the Pine Barrens also asserts Makepeace is violating the permits and the Earth Removal Committee is not doing its job.

Regulatory challenges to sand mining industry claims of agricultural exemption for mining in wetlands

Industrial sand mining in wetlands violates the law and destroys our environment. Yet, local commissions and boards ignore wetlands laws and readily grant “agricultural exemptions” for mining operations that illegally claim the law does not apply.  Save the Pine Barrens is challenging these exemptions and forcing the mining companies to prove that their excavation in wetlands are exempt from the law.

The process for challenging the sand mining industry claim is via a “request for determination of applicability” or “RDA” filed with the local conservation commission. 

As of July, 2022, the MassDEP has sided with the cranberry growers in all but one case. This is an outrageous derogation of their duty — but not surprising as the MassDEP has been “sleeping with the cranberry industry for 30 years” according to one insider. So, we will pursue every option to expose this corruption and refusal to protect our wetlands and waterways.

The Carver Earth Removal Committee regularly gives permits for mining in wetlands.  Since September 2021 it has given permits to Cedar Meadow Cranberry/Pontiff, Eric and Elaine Weston, Edgewood Bogs, Foley Farms and others to conduct industrial sand mining in wetlands.

Wareham Board of Selectmen to conduct audit to find out how much sand AD Makepeace took without permits

In October, 2021 at Town Meeting Wareham voters overwhelmingly passed Warrant Article 18 urging the Board of Selectmen to require AD Makepeace to account for all the sand removed from the town under the guise of agriculture — and possibly without the Earth Removal Permits required by the Town General Bylaw.

The Earth Removal Permit would have required Makepeace to pay the Town 25 cents per cubic yard of earth removed and enormous penalties – potentially in the millions – if it cheated the permit system. Read more here about the Town’s decision to make Makepeace account for the volume of sand taken out of the town. Plymouth Building Inspector refuses to enforce zoning laws at illegal mining operation on Route 3/44

Save the Pine Barrens demands Plymouth Building Inspector enforce Town’s sand mining laws at AD Makepeace site on Tihonet Road

In December, 2021, following months of research on AD Makepeace’s massive earth removal operation on Frogfoot Reservoir in Plymouth, Save the Pine Barrens went to the Town of Plymouth to seek enforcement of the 2014 “earth removal permit” the Zoning Board of Appeals issued to the company to excavate 7 million cubic yards of earth and remove 6.5 million cubic yards from the site.

The alleged purpose of the earth removal was to redo and reshape Makepeace’s Carverside bogs to make them more efficient. The Town never made the legally required determination that the earth removal was “necessary and incidental to” Makepeace’s claimed bog project. Was this another ruse to cover up earth removal?

Save the Pine Barrens sent an enforcement demand to the Town’s building inspector, Nick Mayo. So far, he has declined enforcement, claiming there is more to the story. We are waiting for the explanation.

In the meantime, it looks like a ruse. Several conditions in the earth removal permit have been violated — including the requirement that Makepeace put land in conservation to offset the destruction of globally rare pine barrens habitat. Of course, once again, MassWildlife gave Makepeace a permit to destroy endangered species and their habitat.

Tihonet Road, Plymouth: site of AD Makepeace bog project excavating 7 million cubic yards and moving 6.5 million cubic yards off site for commercial sale. Industrial sand mining under the ruse of agriculture? Google Earth, 1/2022

Plymouth Building inspector asked to enforce sand mining laws at illegal mining site on Routes 44 and 3 in Plymouth

In plain sight, and in violation of a Zoning Permit issued illegally by the Town’s building inspector, Spencer Realty, under the name of a shell corporation, began a 2 year mining operation at a site on Collins Avenue in Plymouth.

In June 2021, before he even owned the site, Scott Spencer contracted with Lopes Construction to excavate the site and purchase the sand and take it off site. At the January 2022 Planning Board hearing, Spencer told the Planning Board that if any sand was removed off site, it was a “misunderstanding” with the contractor, Lopes. Spencer’s owned letter refutes that.

Save the Pine Barrens requested enforcement from the Building Inspector, who refused to enforce the law. Work stopped temporarily after a Planning Board member reported the illegal activity.

Ignoring the illegal activity, in January, 2022 the Planning Board nevertheless approved a massive, 2 year, approximately $6 million earth removal operation claiming it was “necessary and incidental” to site a warehouse building on the property. The developer, Scott Spencer, claimed that he wants to hide his building from the view along Route 3 and therefore needs to excavate a huge hole to put the building at the bottom of the hole. This sound preposterous — and it is.

Save the Pine Barrens is challenging this illegal sand mining and the Planning Board decision that is not based on any credible fact scenario.

October 2021: illegal earth removal project by Spencer Realty Plymouth, 10 Collins Ave.
October 2021: Spencer Realty Plymouth sand mining operation hits groundwater at 10 Collins Ave. site
Spencer Realty Plymouth: illegal earth removal operation. Truck hauling sand off site in violation of Zoning Permit that says “no earth removal”