NEWBURYPORT — Mayor John Moak unveiled a deal yesterday meant to finally cap the troubled Crow Lane landfill, but a provision that opens the door to more dumping is drawing some criticism.

Moak has notified the City Council that he will have Health Director Jack Morris issue an administrative order to New Ventures to cap the Crow Lane landfill — an agreement that also states that New Ventures won't sue the city for liability. The City Council has no power over the decision; however, Moak has told councilors he would advise them of the agreement.

The landfill off Low Street has been a source of problems for five years. Under state orders, the landfill is being capped with an enormous pile of construction debris, but the rotten egg-like smell has caused health problems for neighbors. New Ventures, the firm that is doing the work, has been cited numerous times for breaking the capping agreement it signed with the city more than five years ago.

Capping has ceased while the city and New Ventures wrangle in court and hash out a new agreement.

The order would instruct New Ventures to cap the landfill according to the regulations set by state Department of Environmental Protection. New Ventures would have to maintain a site that meets the city's "noisome trade agreement" and the regulations of a previous injunction meant to minimize smells and nuisances. New Ventures would also have to provide funding for monitoring the site and would give up its right to sue the city.

"It should be made clear that the city is not giving up its enforcement authority in exchange for the covenant not to sue," Moak wrote.

Moak said yesterday the city has not yet finished the administrative order and the covenant is not finalized, meaning things could still change if either party doesn't like what is offered.

"There are a lot of scenarios that could happen," Moak said.

While the order does not state that more fill will be brought in, Moak said it does say to cap the landfill according to DEP regulations, acknowledging that will probably mean more fill will come in.

At-large Councilor Tom Jones, who lives closest to the landfill among the 11 city councilors, questioned allowing New Ventures to bring in more fill in exchange for not suing, with someone "whose word hasn't proven to be very good."

"The mayor has picked a course. I don't agree with it, but we're going to have to wait and see how it plays out," Jones said. "I don't feel that what we're trading is going to get us what he thinks it's going to get us."

In his letter to councilors, Moak said he has considered every possible alternative, and it was an "emotionally difficult decision" to make.

"I am aware that there are many who would prefer to fight New Ventures in court for as long as it takes to win or lose. I understand this preference in principle, but cannot support it in practice," Moak wrote. "The city has already spent nearly $100,000 in legal fees" relating to the landfill, he said, and any future fights would "far exceed what we are able to afford."

New Ventures owner William Thibeault is also the owner of Wood Waste in Everett. While Newburyport has stopped Thibeault from shipping any more waste to the city due to violations Newburyport says Thibeault has committed at the landfill, the piles of debris at the wood waste plant in Everett have continued to grow.

Officials in Everett have said that they believe the current situation at Wood Waste could be alleviated if materials from Wood Waste could be brought to Newburyport to cap the Crow Lane landfill.

Matt Laidlaw, the director of communications in Everett, said yesterday a consent agreement between Wood Waste and Everett was signed on Monday.

"The general scope of it is that Wood Waste agrees to move a minimum of 50 tons of debris per week," Laidlaw said. Negotiations for the agreement began in December, Laidlaw said. The agreement does not specify where the debris will move to, he said.

Moak said yesterday he did notify Thibeault he would be making a decision on the administrative order this week, and Thibeault could have told Everett that was occurring.

Moak said yesterday he has had no knowledge of what is happening in Everett and has had only one conversation with the Everett mayor on the issue. Newburyport's decision is totally independent of Everett's, Moak said.

"It sounds pretty coincidental, though," Moak said. "It's very coincidental that happened."

Mayor meets with state

Moak had been contemplating the move for weeks. In his notice to councilors, the mayor said he met with the attorney general's office and the DEP last week before making a decision.

"I presented my two primary goals, which are to close the landfill in the most effective and expeditious manner possible, and to minimize the city's legal liability under 21E," Moak wrote. The attorney general's office "made it clear" they would not favor an administrative order filing by the city, Moak said, because the state did not want "to put its own litigation on hold."

"The AG is very concerned with the litigation process, and its ability to enforce its own agreement with New Ventures in court," he wrote. "At the same time, however, the AG stated it believes we are likely to lose a lengthy court battle with New Ventures over the Host Community Agreement."

If the city does pursue a court battle and loses, Moak wrote, "we have also lost the opportunity to minimize our 21E liability."

"We would certainly be in a far worse position than we are today," the mayor wrote.

By using an administrative order, Moak said, the city can minimize its liability under 21E, a state law that classified the landfill as a hazardous material site. Because the city has dumped waste there in the past, it is responsible under state law for contributing costs toward its cleanup or could be open to possible contamination lawsuits.

New Ventures has agreed to provide the city with a covenant not to sue under 21E if the city files the administrative order, allowing New Ventures to cap the landfill.