Town of Old Lyme
Water Pollution Control Authority
Old Lyme Town Hall Main Floor Meeting Room
Regular Meeting
November 10th, 2015, 7:30pm
Members Present: Chairman Kurt Zemba, Ernest Lorda, Dimitri Tolchinski, Rob McCarthy, Andrea Lombard, Joseph Carpentino (alt.), Sal Cancelliere (alt.) Steve Cinami (alt.)
Also in attendance: First Selectwoman Bonnie Reemsnyder, WPCA Attorney Andrew Lord, Engineering Consultant David Prickett, Vice President of Woodard & Curran Jay Sheehan.
Members Absent/Excused: Vice Chairman Rich Prendergast, Donna Bednar, Frank Chan, Douglas Wilkinson
- Meeting was called to order at 7:31 pm
Chairman Zemba explained that Rich Prendergast, Donna Bednar, Frank Chan, and Douglas Wilkinson could not attend the meeting, so alternates: Joseph Carpentino, Sal Cancelliere, and Steve Cinami were appointed to fulfil their seats.
Chairman Zemba stated that First Selectwoman Bonnie Reemsnyder is attending a veteran’s event, and that she would be joining the meeting shortly.
- Approval of Minutes: October 13th 2015, 7:30pm
A motion was made by Ernest Lorda, seconded by Robert McCarthy to approve the minutes of October 13th 2015 as is. Motion passed unanimously.
Chairman Zemba stated that they are in compliance with the DEEP order, and read the letter from Carlos Esguerra confirming that. The letter stated that the draft EIE is currently under review by the DEEP, and comments will be forwarded to the town as soon as possible in order to facilitate the completion of the EIE document. Chairman Zemba summarized that they have completed the study, and submitted it to the DEEP. He stated that their charge was to engage in the study, gather the information, and submit with a plan to be implemented to the DEEP per the requirements of accepting clean water funds. Once that submission was made, the WPCA charge has been completed, unless they receive further direction from the Board of Selectmen. He
continued that the WPCA still has authority to manage and oversee the maintenance of septic systems in town, to pursue reasonable actions to address pollution on an area basis, continue with the sewer avoidance process, but as far as the Wastewater Management Project is concerned, the WPCA is done. The actions the WPCA will take are limited, and the WPCA is complete in their charge. He asked Jay Sheehan to speak on the EIE process.
Jay Sheehan recapped that the EIE is a formal process used on all public projects that are funded under clean water funds. It is a chance to provide the project scope to the entities of the state; they get a chance to weigh in on the project as well as the public. The EIE was filed by the Charted Beach Associations already, and the DEEP are waiting for the completion of the EIE for the public section of the project. DEEP will provide comments, once those comments are received, as well as input from the town, they can complete the EIE, and submit for public and state comment.
David Prickett stated that the EIE is based on the report that was prepared and submitted to DEEP last January, it has Woodard & Curran’s name on it, but it is a document that is the towns. It is the recommended plan of the town of Old Lyme: the WPCA, The BOS, BOF, the residents. He recapped what Kurt had said, you do nothing until two things happen: 1) Comments are received from the DEEP (if it contains questions/requests for additional information, that needs to be discussed with the BOS), and 2) Formal input from the BOS authorizing the WPCA to submit it on behalf of the town of Old Lyme . He stated, once that EIE goes in, that is the last technical step that precedes any potential follow up actions on the part of DEEP.
Andrew Lord added, once the EIE is formalized and submitted to the DEEP, it will be published in the Environmental Monitor for public comment. That public comment period could raise additional issues that need to be addressed, at the direction of the DEEP. That additional work will have to be scoped out and go through the municipal process before moving forward. He stated that it will take some time, it needs to be: 1. Finalized, 2. Submitted, 3. Go to Public Notice, 4. Get Comments, 5. Come up with scope of work to address the comments, 6. Go through the process.
Chairman Zemba stated that they don’t know what the DEEP could require, but potentially it could cost an additional $60,000 to $100,000, if they ask for additional testing or information in regards to the 2 beaches that are under the town’s jurisdiction. He stated that the WPCA does not have the money in their budget, and they would have to scope it out, and go to the BOS for approval of those compliance costs. The BOS would then have to decide if they want to do the additional compliance requested from the DEEP, and figure out where the money would come from.
Andrew Lord punctuated, they do not know if any additional work would be requested, or how much additional work would need to be done, but this would be the process with the potential steps.
Robert McCarthy asked if the Draft EIE has been submitted, and if it would be possible to make changes to it? Could they remove Hawks Nest and just focus on Soundview?
Jay Sheehan stated that it is possible to make changes to it, but it has to be based on facts and have technical justification for it.
Robert McCarthy responded that they could revisit Hawks Nest at later time, or they could work on a local solution on their own.
Kurt Zemba stated that he would like to table this discussion until they got to that part of the meeting.
Steve Cinami questioned the ordinance that the WPCA is based on sewer avoidance, and asks if it is binding?
Chairman Zemba stated that sewer avoidance is a policy, and it is not a legal requirement. He stated that the WPCA was charged to control and address water pollution. That it was formed with the purpose to look at alternative methods to avoid sewers, unless there were no alternative methods that could address the pollution. He stated, if the DEEP has determined an area is polluted, neither the town, nor the WPCA has the authority to change that. If someone believes that there isn’t pollution, their only recourse is to convince the State of Connecticut, DEEP, that there isn’t. If they can’t, the only recourse is to litigate with the State of Connecticut, and ask a judge to determine that the State is wrong. It has nothing to do
with the WPCA or the town of Old Lyme.
Andrew Lord stated that the DEEP is not going to make a recommendation for the town of Old Lyme, they are going to allow the town to put a plan together, and they will either say that they concur, or they don’t. If they don’t, they will likely require more data.
Chairman Zemba entered the email from Carlos Esguerra to Bonnie Reemsnyder, stating the town is currently in compliance, into the record.
- WPCA Board Attorney – Comments on BOF Review and Project – Andrew Lord
Andrew Lord stated that he had conversations with Board of Finance Attorney Robert DeCrescenzo. He stated that Attorney DeCrescenzo asked for some information, and Andrew provided it. Andrew gave him the DEEP background, and at the end of the day it came down to the Woodard and Curran expenses. A lot of work was done to respond to the DEEP comments. At one point when the WPCA knew that the costs were escalating, they asked Woodard & Curran stop, and figure out what the costs were. Woodard & Curran complied with the WPCA’s request to provide that cost information, and the question is, how do those invoices get handled administratively. Everyone understood that Woodard & Curran did not expect to get paid at the time of those invoices, that those costs
would be deferred until the project was approved, and those costs would get rolled into that project, which is not unusual. Attorney DeCrescenzo provided a preliminary report to the BOF that stated as much, and that it is really a procedural issue that needs to be addressed. Attorney DeCrescenzo hasn’t submitted a final report yet, but the WPCA has already made changes to the process; they are not going to move forward with another scope of work until it has been vetted by the appropriate people in town.
- Soundview Request / Chartered Beaches Moving Forward and Helping Soundview
work with them
- Engineering Updated on EIE - Dave Prickett
Chairman Zemba entered into the record the letters from Soundview Beach Association. He stated that essentially the letter is asking the DEEP for a hearing, which they are going to grant, and asking the WPCA to allow Soundview to move forward when the 3 chartered beaches move forward, because they are concerned about escalating costs if they don’t get on board when the chartered beaches are ready to move forward. Kurt stated, the issue is, once the EIE is formally submitted, the WPCA can’t do anything with Soundview, because they had already committed to a different plan. He stated, currently it is only in draft form, so, the Soundview issue ties directly into it.
Rob McCarthy stated that he concurred with what Soundview is asking for. He believes that the WPCA should do what they can to help move them along. He stated part of that may be figuring out how to draft the EIE so that it defers Hawks Nest to sometime in the future, to give engineers time to work out whether they need sewers or not, or to work on a local solution themselves.
David Prickett stated yes, the WPCA can change the plan. The EIE is the current step, but the changes would have to go back to the report. The steps to the report were broken down to 4 key steps. 1) Study Area, 2) Wastewater Management Needs Analysis, 3) The recommended project area; 3 charted beaches, Soundview & Hawks Nest, 4)Implementation Plan. Right now the report is written that the chartered beaches would move forward in concert with the town managed beaches. David warned, any changes to the steps have to be based on data. If you want to go back to the Wastewater Management Needs Analysis and provide new data, including costs, which DEEP validated as a realistic element, to confirm the limits of the project area, you can. If the project area stays the
same, does the implementation plan make sense? They can be retooled, but it would require going back to the report, which would be followed up by another draft of the EIE.
Rob McCarthy stated, that the engineers said that the EIE is the final crucial document that says how the project is to be completed. He suggested submitting an EIE that says they are doing just Soundview.
David Prickett stated to be clear, “Do not submit the EIE.”
David Prickett stated that they have not heard anything from the town of Old Lyme, or from the DEEP, that has said to consider a different project area.
Rob McCarthy stated that the EIE is the WPCA’s document, and they get to say what is in it.
Steve Cinami stated that it would probably be years of going back and forth with Hawks Nest trying to get the EIE approved as it currently is. He suggested, if they are looking to decrease pollution right now, take Hawks Nest out of the solution for now, and it would have the town’s support to get started.
Chairman Zemba stated that members have asked him if there is anything preventing the WPCA from taking Hawk’s Nest out, letting the pump station move to Miami Beach, let the chartered beaches take the lead on the project, and the town work with Soundview only? Kurt asked, can the WPCA at this point not submit the final draft or amend the final draft?
Andrew Lord stated that it is a draft document, that it is in the WPCA’s control of when to put it in, they have written notice from the DEEP that says that they are in compliance, they have more time to respond to their comments, DEEP recognizes that the WPCA is working on this, understands that there are issues that need to be address, and that it is part of a process. WPCA or Selectmen need to choose a direction, then there is opportunity to talk to the DEEP. The DEEP wants to see progress. They want as many properties sewered as they can get. If they know that they are going to be in a lengthy litigation, they would probably rather have 4 beaches done than none.
Steve Cinami asked, what is the viability of being credible in taking Hawks Nest out, based on the data submitted.
Andrew Lord referred to what David said earlier, that it goes back to the implementation stage, the question is, how it is implemented?
David Prickett stated that Hawks Nest cannot come out based on the data that is in there. That the implementation can change.
Jay Sheehan referred to the DEEP meeting with Carlos Esguerra, in which he stated that some of the worst offenders in the town are in Hawks Nest. He stated that they cannot change the data, that they would have to change implementation.
David Prickett stated that you could add new data, or add additional criteria that wasn’t in the original plan. But warned, if the WPCA is contemplating a change to the plan, to get the endorsement of both the Selectmen and the BOF before any action is made.
Chairman Zemba stated that he doesn’t believe that it is practical or realistic to change the data to say that there is no pollution in Hawks Nest, that the DEEP has already decided that there is. However, he questions, does the WPCA want to postpone the implementation of Hawks Nest? Do we not include it in the implementation plan? He stated, the town is not inclined to support a plan implementing Hawks Nest.
Dimitri Tolchinski asked what reason the town would have to postpone Hawks Nest?
Andrew Lord stated that the DEEP may want to take care of 80% of the problem now, and worry about 20% later.
Dimitri Tolchinski stated that if they delay for many years, the price will only go up. He stated that they should be talking about how to bring Soundview into the project, and that a discussion should take place with the DEEP about postponing Hawks Nest.
Chairman Zemba asked if they should leave the EIE a draft, and not complete it, because they want to change it? He stated, once it is completed, then it is up to the DEEP.
Steve Cinami agreed with Dimitri, that it may cost more in the future for Hawks Nest to connect, but, he thinks that including Hawks Nest in the EIE may forgo the whole project for years, because he believes that Hawks Nest will sue the DEEP stating that they have data supporting that they are not polluting.
Dimitri Tolchinski stated that he doesn’t mind if they decide to delay, but that decision should come from the people of Hawks Nest.
Andrea Lombard asked if the report is submitted as is, and then there is public comment, can’t it be changed through amendments or strategies based on public comment? She stated that they have done their due diligence, and she believes that they need to submit the report and let the process work. That right now there is not enough data to change anything.
Robert McCarthy stated that if submitted as is, it would take a very long time to get to the approval of the current plan.
David Prickett recapped what Andrea said, that she would propose to move forward with the EIE as is, then the public comment would come, possibly suggesting taking one of the beaches out, and then the report is adjusted to do so.
Kurt Zemba asks how the report would be adjusted?
Steve Cinami stated that it is far more difficult to change it once it is submitted. That DEEP will take into account public comment, but what they present to them is their baseline. He stated that he would find it highly unlikely that they would remove a beach based on public comment.
Andrea Lombard stated that they have to proceed without bias.
Steve Cinami stated that even if Hawks Nest is included, that it still needs to pass in referendum, which he believes is going to be an insurmountable task to get that bond passed. He suggested, instead, taking care of 80% of the environment, and have buy- in from the town people. He suggested that it is a better solution now, than it would be to go through all of this work, and have it defeated at referendum.
Andrea Lombard stated that they have to go forward with what they know.
David Prickett stated that submitting the EIE is a precursor to a regulatory order. By not submitting it, we can’t get to that step. If the thought process is to let it move forward, take it to a referendum, let the referendum decide, an order would likely precede the referendum, and if a referendum fails after an order, it doesn’t end. DEEP doesn’t go away once there is an order.
Chairman Zemba stated that the engineers have a charge to complete the draft EIE, make it permanent, and move forward. The engineers are saying that the EIE must be technically sound. If the WPCA wants to submit a modified technically sound plan excluding one of the beaches, then they are still complying.
Robert McCarthy added that he would recommend doing Hawks Nest at a later time, and put it into the plan that Hawks Nest will be further evaluated based on additional data collection.
Chairman Zemba invited First Selectwoman Reemsnyder to the table, and updated her on what has been discussed.
First Selectwoman Reemsnyder stated that she received an email from the DEEP acknowledging that they are in compliance because the engineers have submitted the EIE draft. The DEEP has been informed of the concerns of the WPCA and the citizens. She doesn’t think that they should manipulate data, but have an honest conversation with the DEEP about the study and the fact that 1 beach association wants to be included into the 3 private beach associations. As far as the other beaches, she believes that they have to finish the process and work with the DEEP. She hesitates to say” lets try to have the outcome we want, when we are supposed to be looking at the issues.”
Chairman Zemba stated that they had already said that it would be foolish to attempt to change the data, that the thought was do they ask for implementation to address part of the pollution instead of all of the pollution.
First Selectwoman Reemsnyder suggested that they have to rely on the engineers who are doing the study and guiding the WPCA.
Steve Cinami stated that the engineers are waiting for guidance from the WPCA on how to move forward. He re-stated that on a practicality level, this project would move forward with quite a bit of support if Hawks Nest was not included. He suggested that it would be better to take care of 80% of the pollution than none of it.
First Selectwoman Reemsnyder stated that she does not believe it is up to them to make that decision, that they should share their concerns with the DEEP and have them weigh in on it.
Joseph Carpentino asked the engineers, with respect to the data in the EIE, is the idea of omitting Hawks Nest, and looking at it at a later date, given what the DEEP is asking of them, is it technically sound.
David Pricket replied no, that the DEEP is on record saying that a portion of Hawk’s Nest has the highest project need in the entire town.
Jay Sheehan stated that there are 2 questions about the EIE, do they modify it to exclude Hawks Nest?, Or do they submit as is, and then how does the public comment affect the modifications to the report? He stated that he believes that the need to discuss it with DEEP.
David Pricket stated that if there is an inkling of a doubt about the plan or the implementation schedule, don’t submit the EIE.
Andrea stated that they should discuss the issues with the DEEP.
First Selectwoman Reemsnyder stated that they are in the process of arranging a meeting with the DEEP to discuss the challenges & concerns that they have.
Chairman Zemba stated that they could agree to table the EIE from being submitted until the meeting with the DEEP takes place.
David Pricket agreed, and also suggested that they get consensus from the BOS and the BOF.
First Selectwoman Reemsnyder stated that she will have a conversation with them, but the DEEP believes, especially along the shore in Hawks Nest, that there is pollution.
Chairman Zemba stated that there is a WPCA meeting on December 8th, he suggested holding off completing the EIE until the First Selectwoman could have the meeting with the DEEP, the BOS and the BOF.
Andrew Lord stated that he would like a statement from the DEEP in writing.
Jay Sheehan stated that there are 2 things that they are waiting on in order to complete the EIE. 1) Consensus from the town, BOS, and BOF, and 2) Written comments from the DEEP.
Sal Cancelliere asked the engineers, Could a galleried system catch basin, that is only 4.5’ off of a test well affect the readings?
Jay Sheehan replied that they are talking about a galleried stormwater system, stormwater is rain, it can pick up particles in the street, grit, metals, it does not pick up nutrients. The levels of nitrogen that they are talking about are tied to septic systems. He stated that the criteria for pollution as defined by DEEP is based on density of lots, resiliency, depth of groundwater, etc. He stated that everyone is focused on the data that shows that there is nitrogen, but the bottom line is that DEEP doesn’t care. They base pollution on density of development and proximity to water bodies. DEEP has the authority to say that there is a pollution problem and that you need to fix it.
Chairman Zemba suggested that they make a motion to not submit the EIE, pending the First Selectwoman meeting with the Selectmen and the DEEP. Moved by Steve Cinami, Seconded by Robert McCarthy.
Chairman Zemba called for a motion, not to submit the EIE prior to the December 8th meeting. 6-in favor, 1-abstained. Motion Passed 6-0-1.
- Old Business – Legal and Engineering Invoices
Chairman Zemba stated that there is an invoice from David Prickett for $1,367.50 for engineering work from 10/19 – 11/10. He asked for a motion to approve the $1,367.50 invoice. Moved by Andrea Lombard, Seconded by Ernest Lorda. Motion passed unanimously.
Chairman Zemba stated that John Sieviec couldn’t attend, but he did attach the Envirotech Septic Service, Signore Septic Service, and Wind River Environmental report on number of gallons pumped. Kurt read his email stating that he is in agreement with Dennis Griese’s assessment of the nitrates at Hawks Nest. That his references and past investigations indicate background concentrations of .8mg in a non-polluted environment, and that he has skimmed the Woodard & Curran report, and it looks comprehensive for the existing conditions. Chairman Zemba stated that John is standing by his data.
Kurt Zemba stated that submitting data regarding pollution at this point needs to be sent to the DEEP for them to evaluate, that the WPCA is addressing implementation at this point, not pollution.
Chairman Zemba passed out a letter from Don Johnson, Huntington Beach, CA, owner of 118 Whippoorwill Rd. He read aloud the letter that stated that 118 Whippoorwill Rd. is their vacation home which they only use 3 to 4 weeks per year. He is asking for a variance to not pump out his septic tank. Chairman Zemba stated that their last pumpout was October 2008, that they are at the 7 year mark. Kurt stated that they have 2 options, they can a) grant him a variance that he doesn’t have to pump for a specific amount of time, or b) tell him he has to pump.
Dimitri Tolchinski stated that since he lives in California, and the house only gets used occasionally, that he doesn’t believe that they should be forced to pump every 7 years.
Dimitri made a motion to give him a variance to extend his pumping date by 2 years. Seconded by Robert McCarthy.
Chairman Zemba stated that there is no proof that the house doesn’t need to be pumped, that they would have to investigate.
Sal Cancelliere stated that 7 years is 7years, and that they should stick with the ordinance.
Chairman Zemba stated that they could go to the board of appeals if WPCA denies the request.
Chairman Zemba called for a vote, all in favor of granting the variance, extending the pumping for 2 years raise your hand. 2 in favor, 5 opposed. Motion failed.
Public Comment
Bill Folland, Resident, Center of Town
Expressed concerned about some of the content on the WPCA website. He suggested that a letter posted was very critical of the DEEP, and wanted to know why it was on the website. He also stated that he was reading the regulations and bylaws, and it frequently said that the WPCA was for sewer avoidance. He suggested that the website needed to be updated.
Chairman Zemba replied that the letter on the website was correspondence received, that at one
time it was attached to meeting minutes, and it does not reflect the position/policy of the WPCA,
or the town. He stated that, the WPCA has a sewer avoidance policy in place, unless they can no
longer address pollution by alternative means.
Dave Potts, with the Garvins
Stated that he was there to provide comments on the groundwater samples that were collected. He stated that a letter was written that said that 5mg/liter is above the background value, and is therefore polluted. He stated that the 5mg/liter concentration represents a combined concentration of both background values, and of wastewater and stormwater loads. He stated that stormwater carries nutrients. If the background value is 2mg/liter, the load from the stormwater and septic combined would be 3mg/liter, if the water is then pumped to New London, it takes energy to transport, and treat, and get rid of sludge. Generating energy creates nitrogen. If you take the samples from the nutrient monitoring reports in New London, you will find
that there is 5-10mg/liter of nitrogen discharged at the mouth of the river. He stated that they are taking 3 mg/liter, increasing the nitrogen load, and sending to a plant that further increases the nitrogen load. He stated that the Clean Water Act mandates the most cost effective long term solution, he suggested that piping water from Hawks Nest to New London would increase the pollution to the Sound, and as such, no Clean Water Funds could be used for that project.
Sandy Garvin, Hawks Nest Beach
Stated that they are trying to identify what pollution is? And if the pollution is egregious enough that it requires sewers? She questioned, when Woodard & Curran established their scoping notice, what data from Hawks Nest did they use? She questioned the data that was collected and sent into the DEEP. She stated that their data is contrary to those findings.
Chairman Zemba replied that her questions regarding pollution need to be addressed to the DEEP
Todd Machnik, Mile Creek Rd
Stated that it is his understanding that the DEEP does not suggest a solution, that the WPCA proposes a plan, and they either agree or disagree with it. He urges the WPCA not to file the final EIE draft until they are completely satisfied with it. It is his understanding that once it is submitted, that it is not changing. That the public comment is only there so everyone feels like they had their say. He also expressed his concern that Woodard & Curran aren’t going to get paid until the project goes forward, and by doing so, Woodard & Curran has a big stake in the ease of how they get paid, and it looks “dirty”.
Rob Breen, Soundview Beach Association
Stated that the driving criteria for installing sewers at Soundview Beach is density development. He stated that the bikeways project has been truncated because they were not able to provide public restrooms. That sewers would provide a basis for renting abandoned properties on Hartford Avenue. And stated, with the 3 chartered beaches proceeding with their plan, the cost to install sewers in Soundview will likely never be less than it will be while that project is under construction.
Joseph Carpentino asked if the WPCA is privy to the data the DEEP used to determine pollution in Hawks Nest.
Jay Sheehan stated that DEEP’s primary criteria is density development on the shoreline, and that DEEP has the final authority.
Adjournment
Motion to adjourn was made by Dimitri Tolchinski, seconded by Andrea Lombard.
Motion passed unanimously.
Meeting adjourned at 9:59pm
Minutes submitted by:
Donna Glaras
11/12/15
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