(This story by Ed Damon was published in the Bennington Banner on Jan. 10, 2018.)
[B]ENNINGTON — Town Manager Stuart Hurd ordered construction of a new, $425,000 sand and salt shed on Bowen Road to begin without waiting for the required wetlands permit, he revealed on Monday, potentially putting the town in danger of being fined or penalized by the state.
The action is being investigated by the Department of Environmental Conservation’s Environmental Compliance Division, the division’s director confirmed on Tuesday.
Hurd outlined his actions, and made an apology, in a public session before the Select Board on Monday night. “I accept full responsibility for my decision,” he said, reading from a prepared statement. “I made it on my own volition without the board’s knowledge or consent, and I apologize to the board and the community.”
Hurd’s action was “not at the direction of the Bennington Select Board,” said board chairman Tom Jacobs.
“We were quite disappointed to understand that this activity was undertaken without our participating in the process,” Jacobs said after Hurd read the statement. “This is a type of management that’s foreign to us. We recognize pretty high standards and we expect management to meet and exceed those standards. In this case, it didn’t happen.”
“We have a very good project completed,” Jacobs said. “But unfortunately, it wasn’t done consistent with requirements of law.”
Jacobs said the board would address the issue in executive session as a personnel matter. The board did enter executive session Monday night, but did not reconvene.
The Agency of Natural Resources issued the wetlands permit on Jan. 3, months after construction began on the 6,400-square-foot salt shed.
The agency had received complaints about the construction through the public comment process on the town’s permit application. Complaints were also received about unauthorized tree clearing and improper dumping of removed asphalt.
“I can confirm that we are investigating the commencement of the town of Bennington’s salt shed prior to the issuance of the wetland permit for the facility,” Kim Greenwood, director of the Department of Environmental Conservation’s Environmental Compliance Division, told the Banner on Tuesday.
Greenwood said she is unable to predict a penalty for beginning construction without a wetlands permit. But under DEC’s administrative penalty rules, the maximum penalty for a single violation, or a group of violations treated as one, is up to $42,500.
How long an investigation will take depends on how many violations are in front of the agency at any given time.
“We prioritize based on our ability to abate impact to human health and the environment and the severity of the violation, among other factors,” Greenwood said. “I would expect, however, that this investigation should be concluded fairly soon.”
Voters in March 2017 approved a $3.2 million bond to purchase the former Plasan North America site at 78 Bowen Road under a plan to redevelop the building as a new public works facility. Part of that plan was to build a new 80-by-80 foot shed to store sand and salt, road materials that have been kept at an aging facility on Orchard Road.
In early October, the Vermont Agency of Transportation announced that it had granted Bennington $340,000 in federal funds toward the construction of the salt shed. But the town rejected the grant.
At the time, Hurd told the Banner that the federal requirements of the grant would have delayed the project.
Hurd on Tuesday did not respond to a question from the Banner, asking if the rejection of the grant was in any way connected with his decision to proceed with construction without the permit.
Hurd read his prepared statement about 50 minutes into the regularly scheduled board meeting.
He explained that he took a gamble by authorizing construction of the salt shed to begin, believing the necessary permit would be received in time. ANR approval was required because about 60 percent of the structure lies within a 50-foot buffer zone along Furnace Brook and its tributaries.
Talks with the ANR division began in May 2017, Hurd said. Construction was anticipated to begin in late September.
“We were told a technical review would begin soon. We thought a draft permit was imminent,” he said. “Unfortunately, it was not.”
Hurd said the project had “very competitive bids” with savings between $60,000 and $70,000 and “a tight timeline.”
“Had we not moved forward, we would have lost contractors, the competitive pricing, and set the entire project back several months, most likely resulting in higher costs,” he said.
“I didn’t take the decision lightly, but I concluded we must begin construction, anticipating a permit would be issued soon.”
Hurd said the construction followed conditions set in the permit, which includes a water quality monitoring plan. Jacobs was unmoved by the explanation. “The dice was rolled. It never should have been rolled. The fact of the matter is we should have waited until the permit was in hand,” he said.
No sand or salt has been stored at the new shed as of Tuesday.
That construction began before a permit was issued was one of several public comments received that are “outside of the scope of wetland permit review such as river and town regulations,” according to the permit.