TOWN OF OLD SAYBROOK
WATER POLLUTION CONTROL AUTHORITY
302 MAIN STREET
OLD SAYBROOK, CT 06475-2369
SPECIAL MEETING MINUTES
Tuesday, October 3, 2006
A Special Meeting of the Town of Old Saybrook Water Pollution Control Authority with the Board of Selectmen and the Board of Finance was held on Tuesday, October 3, 2006, in the Pasbeshauke Pavilion at Saybrook Point Park, College Street Extension, Old Saybrook, Connecticut.
I. Call to Order
The meeting was called to order by WPCA Chairman Powitz at 7:06PM. Chairman Powitz turned the meeting over to 1st Selectman Michael Pace.
Mr. Pace announced the attendees, himself 1st Selectman, the Board of Selectmen, and the Board of Finance. WPCA members present were; Chairman Powitz, Vice Chairman George Gwizd, Nelson Engborg, Chuck Wehrly, Doris Zumbroski, Elsa Payne, and Pavel Wilson. Thomas McKenna arrived at 7:30PM. Also in attendance were; WPCA Coordinator Steve Luckett, Attorney John Wertam from Shipman & Goodwin, Town Attorney Michael Cronin, Peter Grose of Fuss & O’Neill, Representative Marilyn Guiliano, Betsey Wingfield, and Dennis Greci, both from the DEP, Board of Finance Recording Clerk, and members of the public.
II. Joint Meeting with the Board of Selectmen and Board of Finance to Discuss Water Pollution Issues
Mr. Pace said the three boards which hold the primary responsibility for the sewer avoidance project are present. He remarked that there has been a lot of work done in the past 10 years and most recently to allow us to reach a resolution with the DEP. That resolution is 8 months old and only recently has there been voiced that there is a secret document. There is no secret document. The issue comes down to a mediation process that was held in private with the WPCA and Town leadership, to come up with a resolution. It takes sewers off the table for the Town of Old Saybrook providing that in the next 3-10 years we form a waste water management district (WWMD) that will tailor the solution to individual lots if they need to be repaired. The latest issue has been to vacate the mandate. This is not something
that the BOS and WPCA support. He said he has received some letters indicating that residents want sewers. He will bring it before the BOF and they will determine the costs; of the plant, infrastructure, operational and service, recapitalization, and hook up for the individual properties. Mr. Pace discussed who would want sewers and why. He explained that the WWMD is a joint effort and the Town should speak with one voice.
He said he spoke with the DEP to assure them what his position was. He wanted to allay some of the public’s fears and explained that he was working on grants and what the Town could contribute.
Mr. Peace gave some background and explained his position on the sewers. He then gave the following estimate. It would cost $20,000 per household for sewer hookup, (this is a minimum of $4 million assuming a 25% grant.) He advised people with cesspools and undersized tanks to remove them. Mr. Peace said each waterfront lot needs to be reviewed separately. If they take issue with the recommendation, they can hire their own engineer.
Velma Thomas said she feels the Town needs to do the environmentally correct thing and sewers are not the direction the Town wants to head in. She cited her Planning Commission experience and the last two Plans of Conservation and Development.
John Wertam, WPCA Attorney was asked to comment. Attorney Wertam referred to an outline he distributed. He thanked the Boards and the DEP and said they did not want to wind up with a solution that the residents wouldn’t support. During the process the WPCA and DEP got stuck on some technical issues that required some help to move forward. It took some courage for the parties to say they needed help to get through them and accomplish what is good for the Town. That’s what the mediation process did. There was no secret behind it. The result of the mediation is very public. It is documented in the December 2005 Resolution that outlines what was accomplished in the mediation process. It was successful and is a model that can be used for a resolution in many areas where there are
disputes.
The resolution itself is the roadmap that the WPCA and the DEP agreed should be followed in establishing a WWMD. This will be the first time it has ever been done in Connecticut; we will be blazing the trail. The WPCA has done a lot of work with the backing of the BOS and BOF. But it is required because the alternative is the “big pipe,” which was determined a long time ago not to be in the best interest of the Town. There is a stipulated judgment in place, a court order that the Town is subject to. It requires the Town to develop alternatives to treat wastewater. What the Town wanted was an on-site management system which seems realistic right now. But the court says you have to do something. It is my view that you can’t change the stipulated judgment; certainly not unilaterally.
Stipulated judgments cannot be changed after 4 months after they’re issued. The Town would be hard pressed to change it unilaterally. The DEP and Attorney General would have a say in it. He said he would be happy to answer any questions pertaining to the stipulated judgment. Attorney Wertam said the WPCA considered about 58 alternatives and came up with they believe to be the best one for the Town. He continued reviewing the process ending up with the mediation agreement. Two years ago, the laws changed to allow the WWMD. It is not going to be easy but a system has been developed to follow.
What are the options? The Town could look to overturn the stipulated judgment, which would not be looked on favorably by DEP. The Town could decline to pursue any option. The Town could proceed with the WWMD as outlined in the agreement or decline to proceed with the WWMD. Declining to proceed with any alternative isn’t a reasonable or viable option. DEP has their enforcement options available. It can issue an administrative order to the Town, it can refer the matter to the Attorney General to bring an independent action or enforce the stipulated judgment, or it can commence a separate action. He felt the DEP would do one of them if not all of them if the Town declines to proceed in any direction. If it declines to proceed with a WWMD and chooses the big pipe route, that is a whole other set of
discussions, plans, and designs. But that is not the decision the Town has made. They have decided long ago to pursue the on-site management alternative and can proceed to follow the outline. That covers the legal aspects. There are other laws that apply to the process. The State must see to it that municipalities manage their wastewater. Old Saybrook was told to do it and so that is over looking the whole process.
Attorney Wertam wanted to outline the process. It is not going to be easy because there are competing jurisdictions between the WPCA, the DEP, the DPH at the State and local level. The Town administration has to do certain things to make this all happen. This is really just the beginning of the public input process. There have been 2 sessions and the public will have an opportunity to comment on the program. We don’t have all the answers yet, but we felt it was important to tell the public what we know now. As we go along, we will incorporate those questions and concerns into the program. He asked for patience and cooperation as the answers will take a few months to obtain and prepare.
The program has designated certain areas in Town selected because of their sensitivity; population density and other criteria. Within those areas called the WWMD, every lot will be evaluated and all lots will need to be upgraded to the public health code. Some lots have done that and they will receive a permit pretty quickly. On lots where the PHC cannot be met, certain improvement will have to be made. Another subset of lots that are too small or fronting on the water will require advanced treatment systems. That is an extra level of treatment that is built into the system. He described the purpose of AT systems and said that engineering is working on determining what must go on each lot. That’s pretty much going to happen in the next 7-10 years. We have selected areas that don’t have a lot of
AT systems so that we can get experience in site inspection and issuing the permits. DEP understands that work would not progress during the summer. The WPCA has oversight of the program per the statutes.
To set up the WWMD you have to; develop an engineering plan and DEP has to approve it, draft an ordinance which we are working on, prepare upgrade standards which were created during mediation, do public outreach, and resolve the authority issue with DPH and receive authority delegated by DEP. The DEP is working on the process to delegate the authority to the WPCA. The WPCA then has to make sure the systems, especially the AT systems, are maintained. The WPCA is also responsible for enforcement of the WWMD ordinance. The Town will have to develop benefit assessments to manage the whole system. The Health Director and Sanitarian will be responsible for the inspection and permitting of non-AT lots. The DEP has general oversight of the program; enforcement authority under the stipulated judgment and
delegation authority to the WPCA for the AT systems. The State DPH will get involved if a conventional system or PHC lot homeowner wants to appeal. The Town administration has to assist with financing and come up with options. One of the elements of the program that the Town feels strongly about is that the systems should be owned by the lot owner. You don’t want the Town owning your system. The Town administration has agreed that they will explore as many options as they can in order to assist the homeowner. At the end of the day, there may not be anything available (grants and bonding.) He emphasized that they didn’t know yet but hope to have the answers when the ordinance is ready.
What’s next? We want to continue the public education and outreach program that is currently being worked on and modified by the WPCA. The engineering study needs to be finished for DEP approval. This is a prerequisite to the ordinance. DEP issues the delegation authority to the WPCA. There is a town meeting to vote on the ordinance establishing the WWMD.
Mr. Pace reiterated that he wanted to be able to show the effects of going back to court and putting in a sewer system. He is looking at grants like the Clean Water Fund for the property owner as well as grants for people below a certain income level. Interest free loans are also being researched. The homeowner would pay no interest until they sell the house. At which time they would pay off the loan, again with no interest. He described the bulk purchase of septic tanks that the Town would participate in. Installation could be negotiated as well. Mr. Pace continued to describe the collaborative model and what the State, Town, and property owner would provide. New technologies are being explored. Mr. Pace then reviewed the WWMD program process and discussed winterization. He said if systems were brought up
to code the Town has been allowing property owners to rebuild. Mr. Pace reviewed some of the “fixes.”
This issue tonight is that the WPCA has an agreement; the BOS supports that agreement. The BOF will take a look at the numbers and assist in how we package these things. It’s important that we stand as a Town to go in this direction. IF there is a crack in this, I need to know now. He asked Peter Grose to address the engineering issues.
Peter Grose said that Fuss & O’Neill has done some estimates of what kind of upgrades need to be done based on the information that’s available to come up with the number of AT systems. What we need to do next is a lot by lot examination of the properties in the District to be able to determine if they meet the requirements of the PHC. Do they have an opportunity (size of the lot, types of soils, depth to groundwater) to make those upgrades? That is up to the Health District staff which may need to be augmented. They will need to look at the property records and the lots to determine what is there, how big is the septic tank, (the WPCA has very good data from the pump-out program), and do some test pits. That will determine what needs to be done. The upgrade standards are the specific
technical details like how much area for a certain number of bedrooms or the vertical distant above groundwater. Those kinds of data are taken into account with the data we gather for a specific property to be able to say you need to add another eight feet of leaching chambers or replace the septic tank. That will happen in designated areas over a period of years. After that is the implementation of those upgrades by the appropriate personnel.
Town Attorney Michael Cronin addressed the procedure for the WWMD ordinance. It would go to a town meeting for discussion and review. It would be submitted to the electorate by a machine vote. The winterization ordinance which prevents small lots from winterizing could be modified very simply by changing 4 lines. That would go to town meeting. It could be done the same time as the WWMD referendum.
Mr. Pace asked WPCA Coordinator Steve Luckett if AT systems work better if they are 12 month systems rather than only used for 3 months. Mr. Luckett replied that the problem with an AT system is quite often you have to establish the bacteria base. It’s an aerobic bacteria base that we are trying to develop. It’s takes between 8 to 10 days for the population to build up to that treatment mode. If you were to start it up and shut it down in a short period of time you would never get the bacteria established and it could cause an upset in the system.
Mr. Pace said, so the full use of the property for more than 3 months is also beneficial to the AT system. But not every system will be an AT system.
Chairman Powitz said that holds true for a code compliant system as well. If they are rested it takes time for them to get going; year-round use is beneficial to any system.
Attorney Cronin reiterated that the option of doing nothing will result in significant statutory penalties. The Town was fined $67,000 pursuant to 1994 litigation. So fines could incur tremendous expense on the part of the Town along with any other remedial action. The stipulated judgment says $500 per day. There was a discussion on what would happen if there was a court order. It would dictate everything that needs to be done. Right now the Town has a fair amount of control over its own destiny as opposed to losing control over the project and process.
Mr. Pace asked Rep. Guiliano to explain the WWMD legislation that she worked to put into place. She discussed the issue, the collaborative effort, and the future of the project.
Betsey Wingfield was asked to speak. She introduced herself and Dennis Greci and said that the attorneys had done a great job of explaining what is required, what is included in the resolution, and where the process goes from here. There were a couple of things that were thrown back to the DEP; she addressed those. To do nothing is not an option. But what we’ve achieved through this is the opportunity to work with the Town to fix this problem that way that the Town sees fit. The enabling legislation gave us the ability to do that. It is going to take quite a bit of time to make it happen. We are going to get concerned if we don’t see any action. We want to work with the WPCA, BOS, BOF, and the citizens if they need our assistance as we move forward. The public outreach and information piece is
a critical component. As was said, the mediation wasn’t a secret. What we did was reach an agreement which needs to be discussed with the public and fleshed out. Another thing that has been talked about is Clean Water Fund money. We are hoping that when the Town moves forward there will be grant money. Under the present structure Old Saybrook would be eligible for a 25% grant and 75% loan.
Chairman Powitz addressed the assembly and said that he is the last of the line of really superb WPCA chairmen. Each one took us through a different step of the process. I was there for the mediation. One of the things I promised as chairman was that the WPCA would be as open as possible and we’ve kept our promise. For anyone who wants to see what we do, the approved minutes are on the website, we put on the website as much information as we possibly can to keep everybody abreast. Through the efforts of Steve Luckett we’ve established a notebook which pretty much has everything that is being developed for the program. The master copy is in Steve’s office, all of the WPCA members have one, and there is one at the Library for your review. He invited everyone to come to the meetings and
welcomed public input.
He said the public information sessions were ended because there were questions that couldn’t be answered. We are working on an outline for the public sessions responding to what the public gave us. We will flesh it out in the next few weeks then share that with the DEP. Having the public sessions without those answers was somewhat premature. We are going to have public sessions again. There is full disclosure; everything is available for everyone to look at.
There was a discussion on the “Vacate the Mandate” signs, the stipulated judgment and the Town’s actions. If the phrase means let’s go back to court and fight this then the people need to thoroughly understand the legalities. The stipulated judgment is not going to be re-litigated; it would be a gigantic risk. The position is more are we going to have sewers or are we going to work cooperatively with the DEP and WPCA to implement systems that will remediate the identified groundwater pollution issue.
John O’Brien of the Board of Finance asked if there is any guarantee to the homeowner (that puts in an AT system) that they won’t have to hook up to a sewer 5-10 years later.
Reply: The Town is walking through it with the DEP in a systematic way; taking one area at a time. An easy issue is to make sure that the system that goes in meets the PHC and DEP standard. That’s what the standards are for. If in 5 or 6 years something new comes out, you won’t have to replace it. The issue is; can you meet the code?
Mr. Luckett said if you are doing the maintenance program that will make sure the system keeps operating. Should the system fail in 5 or 10 years, it would most likely be under warranty and the manufacturer would respond.
Attorney Wertam said the plan states that once the ordinance is adopted the DEP will go back to the court and seek a modification of the judgment. That would foreclose sewers.
There was a discussion on what to tell the homeowner. There are no absolutes but replacing the systems again is not a realistic outcome.
There was a discussion on the amortization of sewer plants and when the upgrades would be necessary.
Mr. Pace discussed the WWMD with the emphasis on “management.” Once the systems go in, the Town doesn’t just walk away.
Chairman Powitz said the AT systems have been around awhile. If you look around the country; the southern and western states, even ships have had these for years and they work quite well. They are very satisfied and consider AT systems older and established. Once you either have a code compliant system or an AT system, the O and M is working and there is a good history, he said he would be loathe to think of anyone mandating a change.
Ms. Wingfield answered from a DEP perspective. She said the DEP needed to be comfortable that what was proposed would address the problem. It is our responsibility to work with municipalities to solve community pollution problems. We’ve come to the conclusion if you implement the WWMD as agreed to in the mediation resolution then that would be protecting the community health and the environment. Therefore you’ve addressed our underlying issue. If we want to come back, that would be a new action. But the premise is that the action will be sufficient as long as the Town and the residents continue and operate and maintain the systems. From the DEP perspective the problem is solved and we walk away.
Chairman Powitz said he appreciated the BOS’s support.
Vice Chairman Gwizd said he wanted to reiterate that communication is so important. He announced the WPCA meetings on the second and fourth Mondays of each month in the Pasbeshauke Pavilion at 7:30PM. We conduct our business but have an agenda category called “Open Forum.” We open it up to the public for any questions or comments you have. The public is welcome to come.
Attorney Cronin explained the history of the stipulated judgment. The finding that Old Saybrook needed sewers was in the 1994 court case. Old Saybrook was found to be creating a public nuisance because the Town was intentionally not doing anything about the problem they knew about. That was based on technical information going back 10 years. The Town was ordered to put in a sewer. It was appealed to the Supreme Court. The Supreme Court found that the underlying judgment did not have sufficient information to justify the public nuisance conclusion. It was remanded back to the Trial Court to articulate the judgment. The Trial Court made specific findings that we were maintaining a public nuisance. That was again appealed to the Supreme Court which made a decision that the Town was creating and maintaining a
public nuisance. The original order required us to build the big pipe. That’s where we were at the time; the stipulated judgment had nothing to do with the underlying finding of the court. It was simply a method by which the Town would address the issue as opposed to the order that was outstanding. So you see the difficulties with regard to re-litigating. Are we polluting? The Supreme Court said yes.
III. Adjournment
A motion was made at 8:25pm by George Gwizd to adjourn the Special Meeting. It was seconded by Nelson Engborg and approved unanimously.
Respectfully Submitted,
Old Saybrook Water Pollution Control Authority
Robbie A. Marshall
Robbie A. Marshall
WPCA Recording Clerk
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