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Concord bottled water ban stalls

Coakley’s office says it is not a ‘valid bylaw’

By Travis Andersen and Christopher Girard
Globe Staff | Globe Correspondent / July 10, 2010

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In April, Concord residents voted to ban the sale of bottled water in their town, but a top aide to Attorney General Martha Coakley said yesterday that her office could not issue a ruling on the policy as written, in effect killing the ban before its scheduled implementation in January.

The article approved at Town Meeting “does not constitute a valid bylaw subject to the attorney general’s review and approval,’’ Assistant Attorney General Margaret J. Hurley, head of the Municipal Law Unit, wrote in a letter to Town Clerk Anita S. Tekle.

Coakley’s office cannot address the lawfulness of the town banning bottled water sales because the article “does not come within the attorney general’s limited review authority,’’ the letter said.

Before a bylaw can take effect, it must be approved by the state attorney general. The letter states that the article passed is not a bylaw.

The ban is “not criminally enforceable’’ and “fails to identify a method of enforcement, the person or position with authority to enforce, and the penalty for violation,’’ Hurley wrote, explaining why the measure does not meet bylaw standards.

Concord can, however, pass another article at a future Town Meeting and submit it for another review, the letter said.

Members of the Concord Board of Selectmen and Town Manager Christopher Whelan could not be reached for comment last night.

Jean Hill, 82, a Concord resident who proposed the bottled water article at Town Meeting, said that an important issue has been raised, even if the ban does not pass legal muster.

“The ban will probably not be legal, because it deals with interstate commerce,’’ she said. “The way it is now, I consider it a wake-up call to people about our wasteful ways.’’

Tekle, the town clerk, said residents passed the article without considering the practical issues surrounding implementation.

“A lot of people have seen this as more of a philosophical statement, a policy statement than actual legislation,’’ she said.

But the intent is admirable, said Seth Kaplan, vice president for policy at the Conservation Law Foundation, a New England environmental advocacy group.

“The intention of reducing solid waste is a good one,’’ he said. “But there are practical problems with trying to address this issue on a municipal level.’’

He said states are better equipped to handle solid waste issues, which is why his group supports a bill stalled in the Legislature to allow residents to collect a redemption fee for water bottles, in addition to soda, beer, and other beverages currently required to collect a 5-cent deposit under state law.

Paul Mandrioli, owner of West Concord Supermarket, also believes a redemption fee proposal would help the environment.

“There’s a better way to do it than banning sales,’’ he said.

Chris Flynn — president of the Massachusetts Food Association, which represents grocers in the state — said the Concord ban makes no sense. He said bottled water was essential in May, when a water main break in Weston prompted a three-day boil water order in about 30 cities and towns in Eastern Massachusetts and many residents bought cases of bottled water.

“It was an emergency item and helped a great deal then,’’ he said.

But Hill remains convinced that she was right to submit the article.

“In my mind, the Constitution says we have a government of the people, by the people, and for the people,’’ she said.

“It does not say of the corporation, by the corporation, for the corporation. That’s what this effort was about.’’

Travis Andersen can be reached at tandersen@globe.com; Christopher Girard at cgirard@globe.com.

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