Town reacts to Waste Options' objections to appeal
BY MARY LANCASTER
There may still be hope that the town and Waste Options can reach some agreement outside of the legal arena regarding ongoing disputes on landfill operations and the outcome of an arbitrator's Nov. 20 decisions on monetary awards to the company.

As a result of a letter from Waste Options Nantucket, dated Dec. 15 expressing concerns over the town's appeal of the arbitrator's determinations and continued viability of disposal space at the landfill, the town sent a Jan. 2 letter of response and has set up a closed meeting between the parties on Jan. 16.

Last February, Waste Options officially set in motion arbitration proceedings to address disagreements between its and the town's stance on landfill responsibilities. After filings from both sides totaling 1,000 pages of testimony, more than 200 exhibits, a site visit and a week of hearings, the mutually chosen arbitrator ruled that Waste Options was due approximately $1.2 million for various reasons.

The amount includes $872,500 in expenses to ship construction and demolition debris to the mainland because of a state-wide landfill ban of such materials. The town immediately appealed the decision in Nantucket Superior Court, an action entitled to either party under the contract if arbitration awards exceed $100,000.

The December Waste Options letter, written by company president Whitney Hall, states that the company is "disappointed to learn that the Town has decided to prolong this dispute. Unfortunately, this appeal presents a serious risk to the Town of additional legal expenses and ongoing prejudgment interest accruing at a rate of 12 percent. ... Given that the facts in this dispute are unchanged, and given the legal expenses which will be incurred by the Town, it is not clear how the citizens and taxpayers of Nantucket will benefit from an appeal."

Referring to a quote about the appeal from Selectmen Chairman Whitey Willauer, who was said to have stated, "This gives us two years to discuss where we go from here," Hall stressed that such time is not available because the present lined cell is expected to be filled by June and work on a second cell must begin forthwith. He quoted the arbitrator as determining that the town is responsible for capital costs of the second cell and Waste Options for its construction.

"Once the lined cell is filled to capacity, Nantucket will not have any place to dispose of the compost plant residuals," Hall wrote. "It is unlikely that the steamship will allow compost plant residuals on the ferry due to odor considerations. ... Continued denial of its obligations while waiting for a court to reaffirm the arbitrator's findings will significantly increase the Town's cost of solid waste disposal.

"Absent any indication of the Town's acceptance of its obligations to pay for the capital costs of lined cell construction, WON, through its attorneys, will seek to expedite the Superior Court proceeding," he added. "The longer this matter is unresolved, the greater the costs will be to the residents of Nantucket."

The town's response, written by Department of Public Works Director Jeff Willett, states that the town fails to understand the company's 'disappointment' over the appeal, considering that the option exists in the contract. As such, he wrote, the arbitrator's decision is not final, not admissable in court and has no binding effect on the town.

Willett explained that the town filed its action to require Waste Options to bring its claims to that venue as part of the town's duty to protect its interests. He wrote that, "The Town has not yet served the Complaint in the Superior Court action pending upcoming discussions with Waste Options and subject to its right to amend the Complaint as provided by relevant court rules."

Willett further stated that the town disputes the assertion that it would be obligated to pay Waste Options' attorneys' fees for the court case, citing a clause in the contract that he said restricts them to third-party claims. And while he reiterated that at this point the town is not required to comply with the arbitrator's decisions, the town shares the concern about landfill space.

According to Willett, the town has received three conflicting estimates as to when the first cell will be filled: at the arbitration hearing a date of fall 2006 was given, followed later by an estimate of spring 2007 and now it is June 2007. He also wrote that the town supported a suggestion from Waste Options to expand the existing cell by 50 feet to accommodate current needs, and was dismayed by a Dec. 19 letter from the company effectively revoking the proposal.

"It appears, however, from recent conversations, that the Town and Waste Options have found common ground upon which to proceed with the construction of the Phase 2B landfill cell," Willett wrote in closing. "It has always been the Town's position that it would assume the cost, subject to appropriation, of the liner and related materials required to construct the landfill cell. The Town expects that Waste Options will recover sufficient material to provide the base required for the new landfill cell from the mining activity (of the old hill) required by the Waste Services Agreement."

Hall declined to comment on the town's letter

until after the January 16 meeting. I