Town drops action on Mill River cleanup, but FairPLAN still concerned
Updated 7:05 am, Saturday, August 3, 2013
Three town commissions have voted unanimously to recommend withdrawal of its intervention filed with the state on Exide Group Inc.'s plan to dredge 27,600 cubic yards of lead-contaminated sediment from the Mill River.
However, another intervention filed with the state Department of Energy and Environmental Protection by the civic group, Fairfielders Protecting Land and Neighborhoods, remains in place.
"It's now up to FairPLAN," said First Selectman Michael Tetreau after the 90-minute meeting Thursday in the Education Center on Kings Highway East where the commissions met. "If they choose not to withdraw, what we've worked to achieve goes away." The boards voting to withdraw the town's intervention were the Conservation, Harbor Management and Shellfish commissions.
Kathryn Braun, a local lawyer who represented FairPLAN, said after the meeting that she didn't know if the civic group would withdraw its intervention on one of three permits that Exide needs from DEEP. She said FairPLAN would meet before Aug. 8 to make a decision.
Exide in 2006 demolished its former auto battery manufacturing plant and removed lead-contaminated soil from its 6.25-acre property on the Post Road. But lead remains in the adjacent Mill River and Exide is under a longstanding order from DEEP to clean it up.
The interventions over the pollution cleanup filed by the town FairPLAN targeted Exide's request for a National Pollutant Discharge Elimination System permit, which Exide needs for water that re-enters Mill River after lead-contaminated sediment is removed and the water is cleansed.
Cindy Cook, the facilitator on the Exide project, said at the start of Thursday's meeting that if the interventions were not withdrawn, the hearing on them could take six months and would be based off Exide's original cleanup plan, which she said lack improvements made after 10 meetings with town, DEEP and Exide officials in May and June.
Those improvements, she said, include better controls on suspended sediments during dredging; an expanded monitoring program for sediment that escapes from the dredge cell; ongoing communication with the town throughout the cleanup process; and stronger measures tied to the protection of migratory fish and shellfish, performance standards, and a response plan if sediment escapes from the dredge cell.
Public comment during the commissions' joint meeting was based entirely on whether more investigation is needed to determine if lead existed in underground pipes near Exide's property. Those pipes, which are in state Department of Transportation rights-of-way, were referred to by Cook as the railroad drain and Post Road drain.
"Before we release Exide from responsibility, we need to know if lead is not just in the pipes but in land underneath the pipes," Braun said. "Both pipes have not been completely inspected to my knowledge ... and land surrounding the pipes has not been tested."
"Before we rest on our laurels, we are all public officials and responsible for protecting the town in the future," said Braun, a District 8 member of the Representative Town Meeting. "We don't want to be the ones responsible for saying, `We don't want to know what's in the pipes and don't want to know what's in the ground.' We need some more discussions to get that testing done."
"We can't allow the project to go forward if Exide is released from liability," she said.
Linda Snelham Moore of Bronson Road said, "It seems to me it would be relatively easy just to test it. Somebody has to take long-term liability." She said the DOT should be required to give the town a letter saying the DOT would be liable if lead contamination was found in the future.
Joy Shaw of Old Mill Road also was concerned about the potential of lead contamination in the railroad and Post Road drains. She said the dredging project wouldn't be delayed if Exide is required to test those drains for lead at some point during the cleanup. "We don't know how much is in the land and how much is in the pipe. We just don't know," she said. "I hope you will deeply consider and act on that."
But Patrick Bowe, director of DEEP's Remediation Division, said Exide, after it demolished and removed its factory and lead-contaminated soil in 2006, followed all the buried pipes on its property to their endpoint and tested soil underneath them. He said Exide also drilled wells to examine groundwater.
Bowe said no pipes went off Exide's property to the railroad drain, no contamination was at the edge of Exide's property and groundwater wasn't moving off its property to the railroad drain. He said DEEP and Exide had sampled water coming out of the railroad drain and that it was "far cleaner than the lead standard for drinking water."
"I have no lead exiting the pipe, no pipe connecting to it, no lead moving through groundwater and no lead in soil," Bowe said. "The hypothetical concern there is lead in that pipe is very, very thin and very, very hypothetical."
"We have a preponderance of evidence that shows we should not and cannot force someone to go ahead and investigate that pipe," Bowe said.
The Post Road drain was more complicated because the DOT at some point in the past, after part of its drain collapsed, decided the easiest and cheapest fix was to tie into Exide's storm drain, which Cook said was done without Exide's permission.
During its 2006 cleanup, Exide removed its drain and contaminated soil around it and installed a new drain for the DOT, according to a document Cook provided to commission members. "Because Exide's drain was deeper than the DOT drain, no contamination from Exide could have flowed into the abandoned section of the old state drain that remains," Cook said in the document. "Testing of sediments in the remaining section of drain show that lead levels in the sediments are below residential standards."
Regarding the concern expressed by Braun and others about who would be liable if lead is found in either of the drains in the future, Bowe said he doubts any state agency would assume liability for something based on a hypothetical scenario. "It is simply too difficult to write an affirmative commitment based on a hypothetical and theoretical proposition," he said. "There are too many variables to be considered."
Cook said DEEP's 1989 order that Exide clean up the river called for testing of the railroad and Post Road drains, but that was before Exide demolished its factory and removed lead-contaminated soil from its property. She said Exide's work in 2006 showed that the company didn't connect to either drain and that DEEP revised its order in 2008 based on that.
Cook also said that the pending hearing on the intervention wouldn't involve the railroad and Post Road drains because the intervention is focused on Exide's request for an NPDES permit. She said the hearing would cover only whether water that re-entered Mill River after lead-contaminated sediment was removed would harm the river.
Tetreau told members of the three commissions before they voted that the pipes are "off the table."
"They are basically saying they're not part of Exide's responsibility," Tetreau said, referring to DEEP officials. He said after the meeting that the intervention "wouldn't affect the pipes and won't be a topic of the intervention."
Kevin Gumpper, chairman of the Conservation Commission, said, "Exide is not willing to do any more testing and DEEP is not going to make them do any more testing, regardless of how we vote here."