FOX UNDERCOVER (MyFoxBoston.com) -- The town worker dumping sludge scraped from a giant drinking water tank told James Berberian there was nothing to worry about, he'd been doing it for years, even though the black goop was flowing onto the Andover resident's property and then onto local rivers.
But Berberian was worried, and since that day in 2010 he has been fighting the town over that sludge. Along the way, he uncovered evidence that the sludge contained enough arsenic to pose, as one expert found, a "significant risk to human health", a finding that raises questions about not only the safety of his property but also of the town's drinking water.
After seeing the sediment-filled water flowing onto his property, Berberian traced the source to a nearby underground tank big enough to hold 6 million gallons of drinking water. Workers were cleaning out the sludge that had settled to the bottom over time and pumping it into a storm drain, which then led to Berberian's property.
"We saw the town truck was there and these guys were pumping this black sludge into the storm drain system," he said.
One of the workers approached him as Berberian was videotaping what he saw.
"He said, ‘Hey, are you the (expletive) guy who was just videotaping us?' I said, ‘Yeah.' He said, ‘Why are you doing that?' I said, ‘Because all the sludge that you're dumping in that drain is going down to my property and it's making a huge mess.' He goes, ‘Well look. I've been dumping it in this drain for years.'"
Berberian told him to stop dumping and demanded to know what was in the water.
The worker replied, according to Berberian, "'Don't worry about it, it won't hurt you.'"
The town cleaned up his property after the incident, but Berberian says the contamination remains where the water flowed – his property, then past neighboring Phillips Academy, the prestigious private school, and finally into the Shawsheen and Merrimack rivers.
"Are you concerned about your family's safety?" FOX Undercover reporter Mike Beaudet asked him.
"Yes," Berberian replied. "But I think it goes beyond that now. I'm concerned for the safety of the kids that go to Phillips Academy. I'm concerned for people in the town," he said.
Berberian filed a federal lawsuit against Andover last year, obtaining thousands of pages of town records in the process. Buried in the documents was a clue that health risk assessments had been completed but the reports were nowhere to be found.
Berberian went straight to the source to get them, and it soon became clear to him why Andover tried to keep the information under wraps.
While there was "no imminent hazard", the report said, the sludge contained levels of arsenic high enough to pose a "significant risk of harm to human health".
"The health analysis, in the very, very short summary, says there's a significant risk to human health with an endpoint of cancer from exposure to arsenic," Berberian said.
"Is that report a smoking gun?" Beaudet asked him.
"I think it definitely validates that the town, the selectmen, and the town manager and the town counsel are not looking out for the well-being of the people," he replied.
As the legal battle drags on, Berberian is trying to spread the word in town about what he has discovered.. He showed up at a recent Board of Selectmen meeting, hoping to speak.
""Mr. Chairman, I have a citizen's petition I'd like to bring," he began saying from the podium. "In 2010 the town dumped enough…"
But Board Chairman Alexander Vispoli cut him off.
"We don't have that on the agenda tonight," Vispoli said.
"So Mr. Chairman, this report shows an exposure with a significant risk to cancer to the people in Andover. (Selectman) Paul (Salafia), are you aware of this? Are you aware of this report?" Berberian asked.
FOX Undercover didn't have much more luck.
"Anything to say to the people in the town?" Beaudet asked Vispoli.
"No, town counsel is right here," Vispoli replied.
"Is this a health concern?" Beaudet asked.
"I would refer you to town counsel, Mike," Vispoli replied.
But the town's attorney walked away without answering questions
Selectmen did allow Berberian to speak at their next meeting.
Vispoli also read from a statement saying the town's response was limited by the pending lawsuit. The statement did not address the town consultant's report warning of ""significant risk of harm to human health" from the sludge but did say the town's drinking water is safe.
"The drinking water supplied to Andover residents has been tested and has been found to meet drinking water standards met by the Massachusetts Department of Environmental Protection and the U.S. Environmental Protection Agency," Vispoli said, reading from the statement.
The town filed a report with the state DEP last week which says the sludge was not a source of of the contamination on Berberian's land. The report went onto say there is "no significant risk to human health", a finding that contradicts the earlier town report identifying the risk from arsenic.
Berberian isn't buying it, in part because the new report was prepared by the consulting firm CDM Smith. CDM Smith Vice President Michael Walsh is also a town official in Andover, sitting on the Conservation Commission.
Walsh recused himself when the issue has come up before the commission, but Berberian calls it a clear conflict of interest.
"Do you think the town is trying to cover this up?" Beaudet asked him.
"Yes, absolutely," Berberian replied. "I think that's provable and I think that will be proven in court."
In August, the two sides almost reached an agreement to settle the lawsuit for $440,000 but the deal fell through.
The Massachusetts DEP has ordered the town to clean up the sludge dumped onto Berberian's property. The agency is now reviewing the latest report submitted by the town, which downplays the health concerns. The DEP was not satisfied with an earlier report from the town.
As for Andover's drinking water, the DEP tells FOX Undercover the water is tested regularly and is safe to drink as long as the toxic sludge which settles at the bottom of the tank doesn't mix with the drinking water above it.