Minutes of the March 24, 2010 meeting of the Council on Environmental Quality held in the Holcombe Conference Room of 79 Elm St., Hartford, CT.
PRESENT: Barbara Wagner (Chair), Janet Brooks, Bruce Fernandez, Karyl Lee Hall, Norman VanCor, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst).
Chair Wagner convened the meeting at 9:07 AM, noting the presence of a quorum.
Chair Wagner pointed out a correction to a name that appeared in the minutes of the March 2, 2010 meeting and asked if there were any other revisions needed. There was none. VanCor moved that the minutes be adopted subject to the revision. This was seconded by Hall and approved unanimously.
Executive Director’s Report
Wagener said he had testified before the Legislature’s Transportation Committee regarding the “Waterbury / Oxford Airport and CEPA” bill. (CEPA stands for Connecticut Environmental Policy Act). The Committee approved the bill with the language that had been suggested by parties interested in the project including the Town of Oxford. The bill would allow the Environmental Impact Evaluation (EIE) that had been written to move ahead to the public notice and comment part of the EIE process. The bill would end the ambiguity in the existing CEPA process and permit privately-authored EIEs for public-private partnerships, provided that the sponsoring state agency remains in charge of the process. It would permit the agency to charge the private partner for the work contracted by the agency. Wagener said that legislators had expressed appreciation to the Council for its efforts to help find an acceptable resolution to this Oxford Airport / CEPA problem. Wagener also said he sent the letter, approved at the last meeting, to the Office of Policy and Management (OPM) and DEP regarding this issue.
Wagener reported that he testified on a bill before the Environment Committee regarding the recording of preserved open space. Senator Meyer submitted additional provisions related to recommendations that appeared in the Connecticut Audubon Society’s State of the Birds Report, which had been released the day before the hearing. If passed, the DEP will be required to create a registry of preserved land. The DEP will also be required to analyze lands needed for protection of habitat for species previously identified as being of greatest conservation need. The law would give new duties to the Natural Heritage, Open Space and Watershed Land Acquisition Review Board to advise the DEP. Wagener said that a section had been added that would require a municipality that adopts acquires land for open space preservation to acknowledge that purpose in the land records.
After discussion of some bills on which the Council did not submit testimony but could be important, Brooks asked if the Council could have a discussion of anticipated legislation well in advance of the next session. Members agreed to that.
Wagener discussed a package of bills that had the support of the Connecticut Business and Industry Association. These bills contain some proposed restrictions of DEP authority in some of its general permits, regulations and guidance functions. Also in this package of bills is the suggestion, discussed at the last meeting, that the DEP report every three years on the quantity of air pollution coming from out of state; he said that there had been a suggestion that this be delegated to the Council as a responsibility, but he did not know the bill’s prospects.
Wagener said he testified regarding the wetlands training recommendation that had been discussed at the last meeting. Although it was well received, it was not attached to a bill. Brooks said that this is an example of a bill that is supported by the Homebuilders Association as well as environmental groups and possibly others. If promoted early enough it should find more support in the legislature. Chair Wagner said that the Council should schedule a meeting in September to discuss a wetlands training bill for next year.
Wagener updated the Council on the land conveyance bills that included two properties that had been the subject of previous actions by the Council, the Seaside property in Waterford and the Clark Creek Wildlife Area in Haddam. Council staff had received calls and emails about the Haddam swap from citizens in opposition. He summarized the details of the swap for the Council. He said that some of the opposition comes from concern that it is a contaminated site that should not be used for a hotel, as suggested, because it will not have a clean water source. Wagener added that it has not been the practice of the Council in the past to comment on conveyance bills.
Chair Wagner said she would like to proceed to citizens’ complaints and postpone the discussion of the Annual Report to later in the meeting.
Citizen Complaints
Tylerville – Wagener said there are two components to the Tylerville case. One is the DEP’s draft Phase I report on the Tylerville area. The other is the adequacy of the DEP response to the Sibley Company’s failure to meet the March 11 deadline for submitting a report on its property. Lisa Wadge of the Citizens for Clean Groundwater (CCG) asked to speak to the topic. Wadge said that the DEP consultant, in writing the Phase I report, had overlooked some historical reports and CCG has since provided information on those reports to the DEP.
With regard to the Sibley property, Wagener said that a two year deadline to complete a study of releases from its facility had passed with no report submitted. The public had been told by DEP representatives that nothing could be done until the deadline had passed. Now that it has passed the question is what will be done. Hearn was asked to update the Council on the DEP response to this failure. Hearn said that he understood that if there is no response or an unsatisfactory response the DEP will issue a Notice of Violation (NOV). Chair Wagner and Brooks pointed out that a NOV is merely a warning letter with no penalties behind it.
Wagener said this case is dramatic evidence of many problems with regard to the law and regulations on cleanup of such sites. Although the law requires that a property owner hire a Licensed Environmental Professional (LEP) to conduct the study, there is no requirement that the property owner notify the DEP that the LEP has been dismissed or that the study is not being conducted. There are no “mileposts” that would lead to more severe sanctions if not met. In this case two years were lost while the owner perhaps did nothing. Brooks said that reliance on enforcement letters that are not enforceable in court leads to years of delay and the possibility that owners of contaminated properties can escape responsibility while putting neighboring home owners at risk and costing the state the expense of providing bottled water and / or filtration systems for homes.
Wadge cited the case of a home where recent water samples showed TCE contamination more than 100 times the acceptable level. She said that CCG would like to see the matter referred to the Attorney General for action. Brooks said that the letter with deadlines that were not met by the owner is not an order. Although it could be enforced, the process could be difficult. Brooks added that the person whose home is impacted should seek her own legal counsel in this matter. She also made the point that referral to the Attorney General does not result in immediate action since they have competing priorities that must be balanced. Brooks added that if there were to be such a referral it could be done simultaneous with the NOV.
Ms. Wadge said she wanted to rebut the assumption that the DEP was understaffed or overburdened and therefore unable to address the Sibley problem. She told of the rapid and effective response that residents of Tylerville witnessed when the staff from the DEP’s Leaking Underground Storage Tank Division responded to a contamination problem at a nearby gas station. Wells were drilled, the property was studied and contaminated groundwater pumped out. Remediation is scheduled to be completed this year. The division secured an agreement with the property owner to provide water treatment for the affected residents. This contrasts to the Sibley case where the problem has persisted since the 1980s and no effective action has been taken and the state is paying for water filtration units. She said the difference is that in the case of leaking storage tanks the owner can be prevented from using the property until the problem is solved. That is not the case with other types of groundwater contamination, so the owners of those properties can continue to use them commercially. She recounted examples of locations with contaminated groundwater that had been serving water to the public or using it in food preparation. She said that the Department of Health needs to include tests for toxics as a requirement before permitting such uses. Wadge said that the Emergency Spill Response Unit also is empowered to act quickly. She said she believes that the term spill is defined broadly enough to include industrial sites. Chair Wagner speculated that the new development occurring in the Tylerville area might be creating an emergency situation.
Fernandez recommended that a representative from the DEP be invited to a Council meeting to discuss how the existing remediation regulations should be improved. Hall added that in this case the US Environmental Protection Agency (EPA) delegated the DEP to take the lead in the situation, and EPA oversight was discussed.
Ms. Wadge said her organization was asking for action, specifically, 1) referral of the Sibley case to the spills division of the DEP, 2) referral to the Attorney General for noncompliance, 3) cost recovery for the public, 4) a moratorium on new wells in the contaminated area, and 5) not approving the land swap proposed in the aforementioned land conveyance legislation. The Council discussed and agreed by consensus to send a letter to DEP Commissioner Amey Marrella regarding the need for a rapid response, with a copy to the Attorney General, and to ask the staff to communicate the Council’s and citizens’ concerns to the co-chairs of the Government Administration and Elections Committee.
Water Diversions at the University of Connecticut – Wagener reported that the disagreement between the Mansfield Conservation Commission and the DEP regarding the Memorandum of Agreement on University of Connecticut drainage issues remains unresolved. The Commission is not satisfied with the response received from the DEP regarding its complaint that the DEP and the University agreed to pursue an illegal diversion. The Commission has asked to appear before the Council, if the next response by the DEP does not satisfy its concerns; members agreed that there should be time on the May agenda.
Annual Report Topics
To update the Council on the status of the Annual Report, Wagener referred the Council to a tracking sheet used by staff to record what data has been received and what remains outstanding. Only air data and energy consumption data had not yet been received. The area of state-owned land is accurate, he said, and can be displayed. He noted that the totals for privately held and municipally-owned preserved open space are inaccurate, as discussed previously. Until there is a central registry established this acreage will be nearly impossible to determine. Members discussed how the indicator might be modified.
Wagener said that the current shellfish indicator which measures leased beds can be replaced with a measurement of the area of the sound that is fully approved for shellfish harvesting. The difference, he explained, is that the former may vary depending on economic factors that affect interest in operating a shellfish area. The latter is a measure of water quality regardless of whether harvesting is taking place. Members agreed.
Chair Wagner said she approved of the draft introduction that Wagener had sent to the Council prior to the meeting. Council members agreed that it was an appropriate introduction and were surprised by much of the historical information contained in it. Regarding rivers, Brooks suggested the report state that although many rivers are not yet swimmable, there have been dramatic improvements in their aesthetics since water pollution controls were first instituted. Fernandez said that the links between the cancer indicators and the environment need to be clearer, which was discussed. Chair Wagner suggested that the members who are not present at the meeting be solicited by Wagener for their insights. Wagener said the Annual Report should be complete by the end of April and that a summary of its conclusions might be available by Earth Day. Chair Wagner asked how the data on contaminated property would be used in an indicator, and Wagener said that it is being worked on.
Review of State Agency Actions
No comments were recommended by staff for cell towers that had been proposed for Stonington and Willington.
Next Public Forum
Discussion ensued regarding a location and date for the next Public Forum. The consensus was that the number of issues in Haddam recommended it as an appropriate location. The time proposed was 5:00 PM on April 28th. Staff was directed to explore appropriate venues.
There being no further business, Chair Wagner asked for a motion to adjourn. This was offered by Fernandez and seconded by VanCor. The meeting was adjourned at 11:18 AM