Exide Group Inc.'s proposal to dredge lead-contaminated sediment from the Mill River continued to be scrutinized by town officials Wednesday night, and they plan to bring their concerns to state elected officials.
"I think we ought to pursue some kind of contact with the first selectman's office in terms of having legislators and the governor intercede to make sure our interests are really protected," Robert Bilek, vice chairman of the town's Shellfish Commission, said toward the end of a 90-minute meeting with two state Department of Energy and Environmental Protection officials in Sullivan-Independence Hall. "It, in effect, may come to nothing, but it's worth at least showing our face over there."
"It seems there are a lot of groups involved in this, which is fine. The more, the merrier," Bilek added.
The Shellfish Commission voted unanimously to have Sanford J. Wakeman, Jr., its chairman, and Bilek meet with First Selectman Michael Tetreau about the concerns, which include dredging during spawning season; the use of a hydraulic cutterhead dredge instead of a cofferdam; the protection of life in the river; how long dredging would last each day, and monitoring of water discharged back into the river after contaminated sediment is removed.
Commission members also questioned whether DEEP was following the process in its October 2008 order to Exide to clean up the river.
The commission also voted to submit a petition to DEEP that asks for a public hearing on one of the permits Exide requires from DEEP, and Kathryn Braun, a Representative Town Meeting member from District 8, indicated she also has a petition requesting that.
"We are going to submit our petitions and hope you'll do the same," Bilek said to Braun.
Braun replied, "We will be."
The petition would request a public hearing on Exide's application for a National Pollutant Discharge Elimination System permit, for which DEEP has granted a tentative approval. The public can submit comments to DEEP on that permit application until Feb. 20.
"We are really intent on getting this river cleaned up ... but we've been waiting for 30 years and want it to get done right," Bilek said.
Exide Group's factory at 2190 Post Road manufactured automobile batteries from 1951 to 1981, and runoff polluted the adjacent Mill River with lead. Exide demolished the factory in 2006 and removed lead-contaminated soil from its property. It's now planning to dredge about 27,000 cubic yards of sediment along 4,000 linear feet of the river.
Donald Gonyea, from DEEP's Bureau of Materials Management and Compliance Assurance, attended Wednesday night's meeting to answer Shellfish Commission members' questions and concerns, though he said several were outside the jurisdiction of the NPDES permit. Gonyea said he only is involved with monitoring water that is returned to the river after lead-contaminated sediment is removed and the water's cleaned.
Annette Jacobson, administrator of the town's Conservation Department, suggested Gonyea require an NPDES permit for each area of the river to be dredged because re-suspended contaminated sediment could escape from silt curtains surrounding the "dredge cell" and harm river life. "We thought each dredge cell, because of this escape and re-suspension, is part of your jurisdiction," she said. "We have experience turbidity curtains don't work for this long a time."
Gonyea said requiring an NPDES permit for each dredge cell wasn't regulated under the federal Clean Water Act. "I still have to figure out what, if anything, state law alters in that regard," he said.
Jacobson also was concerned that discharging water back into the river initially was proposed for 12 hours a day so the river wasn't "constantly disturbed," but now is proposed from 15 to 24 hours a day. Gonyea said that timeframe still is subject to amendment under Exide's remedial action plan, or RAP, which he said was a "soup-to-nuts" document governing the entire cleanup.
Bilek and Jacobson also questioned plans for monitoring the water to be discharged back into the river, with Jacobson saying, "We would like kind of continuous monitoring of discharge so it matches ambient water quality, all day long, 24 hours a day." The monitoring should include such things as temperature, salinity, pH and dissolved oxygen, she said.
Gonyea said he could look into whether DEEP could do that comparison, though he didn't commit to 24-hour monitoring or the other factors mentioned. "I'm very confident the discharge is protective of water quality and will not cause a negative impact on aquatic life. We have a lot of controls on this end of it," he said. "Probably the easiest part of the dredging operation is ensuring water is clean, safe and won't have a negative impact."
Jacobson said DEEP took into account only the effects of the dredging operation on minnows and shrimp, and that river herring and other marine life ought to be included. But Gonyea said the federal Environmental Protection Agency didn't have protocols for river herring and that developing such protocols could take a long time.
When Jacobson suggested DEEP could prohibit Exide from dredging during spawning season or require a cofferdam unless Exide demonstrated no ill effects on river herring and other marine life, Gonyea said it was almost impossible for Exide to develop such a test because the EPA would have to approve it. He said using a cofferdam, in which parts of the river are sectioned off and de-watered for dry dredging, likely would require reopening the NPDES permit because it would be a "significant modification."
Jacobson said town officials were "trying to provide you with solutions and options that are a little more protective."
Bilek said the Shellfish Commission felt "very unprotected" by dredging during the spawning season. Gonyea suggested the commission include its concern in comments to DEEP's Fisheries Division. He said Jacobson's question of whether a third-party monitor could be used also is outside his jurisdiction.
The increase in sediment to be removed -- from 21,000 cubic yards in the RAP to 27,000 cubic yards in the NPDES permit -- is likely attributable to the recognition that some sediment will be removed that doesn't have to be, Gonyea said. "The allowance to take more sediment than that accounts for you can't cherry-pick every piece of sediment. There will be overlap," he said.
Bilek said the Shellfish Commission also wants to make sure Superior Plating Co., which contaminated the river with chromium, also was on board. In many areas, chromium is co-mingled with lead and would be removed, but DEEP as of several weeks ago hadn't determined if areas of sediment exist with chromium and minimal or no lead.
Bilek also questioned whether the right process was followed since Exide's detailed remedial action plan to clean the river is not yet publicly available.
Gonyea said the NPDES permit was limited to discharges from the de-watering of sediment and would be subject to an approved RAP.
Jacobson, though, said DEEP's October 2008 order to Exide to clean up the river says the remedial action plan had to be approved before Exide applied for permits. "This shouldn't even have been submitted to you for approval, let alone decided," she said of Exide's NPDES permit. She said the public relied on knowing details in the RAP before commenting on other parts of the application.
But Gonyea said nothing in the Clean Water Act prevents someone from applying for a permit and that the NPDES permit would be "useless" without an approved RAP. But he said he would check with DEEP's legal staff about the concerns expressed by Jacobson and the commission. He said he understood "the apparent conflict between my acceptance of the application and what was in the order."
After the meeting, Jacobson said she wasn't sure if the cleanup requires approval from the town's Conservation Commission because not enough information was in the RAP.
During the meeting, Mary vonConta, chairwoman of the town's Harbor Management Commission, said she believes her commission should have to consider the cleanup plan unless DEEP gives a reason why that isn't necessary.
The Shellfish Commission voted to have the Conservation Department send concerns mentioned Wednesday night to the DEEP by Feb. 20 and to request an extension of the public comment period, which Gonyea said would have to be approved by higher-ups at DEEP.
Gonyea said he is required to reply to every comment received and that DEEP is trying to arrange a large-scale forum on the RAP that could be attended by town and state officials.
"So we're going to lock everyone in a room and they can't get out until everything is done?" Bilek asked.
"That would be my suggestion," Gonyea said.