Town of Brewster

2198 Main Street

Brewster, MA 02631-1898
Phone: (508) 896-3701
Fax: (508) 896-8089

Office of:
Board of Selectmen
Town Administrator

July 28, 2016

Sent via Certified Mail, Return Receipt Requested
Commissioner John Lebeaux
Massachusetts Department of Agricultural Resources
251 Causeway Street
Suite 500
Boston, MA 02114
Re:

Request for Adjudicatory Hearing

Dear Commissioner Lebeaux

This correspondence is mailed to you, return receipt requested, and serves as Town of Brewsters
formal Request for an Adjudicatory Hearing filed individually and jointly with other Cape
Cod towns pursuant to 333 CMR 11.09. This Request for an Adjudicatory Hearing is filed as
required by statute within twenty one (21) days of MDARs decision dated July 15, 2016
(attached) approving the Eversource Energy Companys Yearly Operational Plan (YOP) for the
application of herbicides on rights of way (ROW) in Barnstable County and more specifically in
the Town of Brewster.
The Town of Brewster brings this action because MDARs decision of July 15, 2016 is
inconsistent with 333 CMR 11.00 inasmuch as the Town of Brewster shall suffer economic,
environmental and reputational injuries far in excess of those suffered by the general public if the
spraying of herbicides is allowed as contemplated in the Eversource YOP. The Town of
Brewster further contends, injuries to the town as a whole, to its citizenry as a whole and indeed
to any town on Cape Cod or in Dukes or Barnstable County, is potentially devastating, especially
as regards clean, potable, chemical free drinking water. Additionally, said herbicidal spraying
impacts the entire ecologically sensitive balance of life and nature on all of Cape Cod in a
manner far different in kind and in magnitude from those unique impacts which might be
suffered by the general public within the scope of the interests identified in 333 CMR 11.00 and
MGL 132B.
The Town of Brewster asserts the herbicidal spraying contemplated by the YOP presents: (1) an
immanent hazard and (2) is a not well evaluated or assessed threat of an unreasonably adverse
effect on the environment and in that and other regards is therefore a violation of Chapter 132B.

The Town of Brewster asserts the herbicidal spraying contemplated by the Eversource YOP
inadequately provides for or considers the many non-target vegetation species on the ROWs it
sprays. In fact, ROWs are one of the primary early successional plant communities remaining
in New England. As a result, many plant and animal species use ROWs as their homes, feeding
grounds or nurseries and therefore public health and environmentally responsible protection of
ROW interests warrants special protection to minimize the risk of unreasonable adverse effects
on the overall environment.
The Town of Brewster further contends that Eversource Energys YOP is impermissibly vague
when it discloses that its Eastern MA foliar program application of herbicides is in the pints per
acre range.
The Town of Brewster further contends that (1) Eversource uses herbicide formulations high in
acute toxicity, typically adding other adjuvant chemicals to the active ingredients in order to
create the deadliest compounds, that (2) said compounds bio-accumulate and, as applied, that (3)
said compounds have a long half-life with high mobility, none of which was adequately
disclosed by Eversource or considered by MDAR.
The Town of Brewster sees no evidence these herbicides have been adequately or carefully
reviewed jointly by MDAR and the Massachusetts Department of Environmental Protect, or the
EPA for that matter, for use in limited spray sensitive areas as required.
The Town of Brewster also asserts the YOP is completely devoid of any reference to the
consequences of the mixing of chemicals.
The Town of Brewster contends Eversource Energy, Eastern MA uses chemical compounds and
toxins in violation of the Massachusetts Endangered Species Act (MESA; MGL c. 131 A) and its
regulations, 321 CMR 10.00, inasmuch as the use of these chemicals alters and changes the
physical and biological condition of a ROW in ways that detrimentally affect the capacity of the
ROW habitat to support a population of endangered or threatened species.
.
The Town of Brewster asserts the Eversource spray plan will/does alter and change the physical
or biological condition of ROW habitats in a way that detrimentally affects the capacity of the
habitat to support a population of endangered or threatened species and provides no assessment
mechanisms to review, evaluate and determine the impact on endangered, threatened and
special concern species of all works, projects or activities conducted by them. See MGL
Chapter 131, the Massachusetts Endangered Species Act.
The Town of Brewster asserts it has herein specified in writing sufficient facts to compel the
Department of Agricultural Resources to determine that the Town of Brewster is in fact
aggrieved.

The relief the Town of Brewster seeks is reversal of MDARs approval of Eversources 2016
YOP and a ban on any further spraying or application of any toxins on any ROWs within the
Town of Brewster or indeed anywhere on Cape Cod that such application of toxins has the
potential to negatively impact our economic, environmental and reputational interests.
Attorney Bruce R. Taub has been retained by the Town of Brewster to serve as legal counsel to
the Town in all matters related to the Towns Application and Request for an Adjudicatory
Hearing. In regard to same, please respect the legal convention/requirement that henceforth - as
related to the Adjudicatory Hearing any and all verbal, written and electronic correspondence
by MDAR, Eversource, the Pesticide Board, the Attorney General Office, and indeed any state
or governmental agency with the Town of Brewster must be conducted solely and exclusively
through Attorney Taubs offices at PO Box 2712, Orleans, MA 02653.
Thank you for your attention to these matters.
Very truly yours
Signed on behalf of the Town of Brewster and its citizens
John T. Dickson, Chairperson Board of Selectmen

Michael E. Embury, Town Administrator