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CONSERVATION COMMISSION
INLAND WETLANDS AND WATERCOURSES AGENCY

JULY 10, 2000

SPECIAL MEETING/PUBLIC HEARING

I. CALL TO ORDER

Howard Beach, Jr., Chairman, called the Special Meeting of the Conservation Commission/Inland Wetlands and Watercourses Agency to order at 7:44 P. M. in the Simsbury High School Amphitheater. The following members were present: Andrew Bucknam, Pierce Clayberger, Richard Miller, William Nowak, Thomas Sharpless, and Margery Winters. Also present were Laurie Whitten, Conservation Officer, Lisa Arakelian, Commission Secretary, and other interested parties.

II. APPOINTMENT OF ALTERNATES

Chairman Beach appointed Commissioner Winters to serve for Commissioner Wade, and Commissioner Bucknam to serve for Commissioner Yocom.

II. PUBLIC HEARING - DISCUSSION AND POSSIBLE VOTE (continued from 7/6/00)

A. Application of River Bend Associates, Inc. and Griffin Land & Nurseries, Inc. for a permit to conduct regulated activities in connection with "Meadowood" planned residential development, County Road, Hoskins Road, Holcomb Street, Firetown Road, and Barn Door Hills Road

Tim Hollister, attorney, reminded the commission that, at the July 6 meeting, the applicants had agreed to most, if not all, of the suggestions regarding the soil mixing procedure made by Gordon Brookman in his memos dated June 29 and July 5, 2000, and in Dr. Anagnostou's statistical analysis. At that time, Mr. Hollister had also asked Mr. Brookman to provide him with a list of items that would have to be agreed to by the applicant to satisfy Mr. Brookrnan. Mr. Hollister stated that he had just received this list of items prior to the start of this meeting and he has had very little opportunity to review it.

Gordon Brookman reviewed his letter of July 10, 2000 outlining six recommendations to be accomplished by the applicant over and above what they have already proposed. He noted that, in his item 93, the second-to-the-last sentence in the second paragraph should read, "At least three piezometers should be installed within the pilot test area and three should be installed immediately downgradient of the area."

Commissioner Sharpless suggested that the applicants perform another one-acre soil mixing pilot test, complete the spatial variability analysis to locate "hot spots", then reapply for a permit from the commission.

Chairman Beach wondered what happened to the chlordane that was present in the pilot test area two years ago that is not present now. He didn't believe that it could have totally disappeared and wondered if it has changed characteristics due to the affixing, migrated down to the groundwater, or something else has happened to it.

Mr. Brookman replied that, in his interpretation of the data, he believes that the chlordane is still there, but below the detection levels.

Commissioner Sharpless recognized that some portion of the chlordane probably volatilized but, he stated, what remains to be discovered, is whether a significant portion reached the groundwater. He suggested that another one acre pilot test would reveal that. Sharpless also wondered, if the chlordane is volatilized, what will be the effect of spreading organic inch soil on top of the test site? Another test might tell us how long one should wait before capping the soil with topsoil.

Commissioner Nowak asked Mr. Brookman what he thought the applicants should do if the initial soil mixing does not correct the soils and eliminate the pesticides. Mr. Brookman replied that it would depend on how close the levels of pesticides are to the standards. They could either re-mix it or remove it from the site and dispose of it.

Tim Hollister asked Mr. Brookman if they could go through Mr. Brookman's memo together and ascertain which items were agreed to by the applicants and which have not been agreed to. He also asked, if all the items in Mr. Brookman's July 10 letter are followed by the applicants, would Mr. Brookman consider it a safe program?

Attorney Robert Melvin told Tim Hollister that it is appropriate for him to direct specific questions to Mr. Brookman regarding his July 10 letter, but it is not appropriate for Mr. Hollister to ask Mr. Brookman to speak for the town as to how the town's opinion differs from Mr. Hollister's. Mr. Hollister replied that he is just trying to reach an agreement as to what the steps in the soil remediation plan are.

Mr. Hollister referred to his own memo to the town, dated July 10, 2000, in which he listed conditions of approval agreed to by the applicants and asked Mr. Brookman if, in his Paragraph 1, he has addressed everything Mr. Brookman has asked for with regard to pre-mixing sampling and site characterization. Mr. Brookman replied that the applicants have agreed to 100 additional samples at a depth of 0 to 0.25 feet, but he recommends that the applicants first perform a statistical analysis of all the data taken in both Meadowood East and West, taking into account spatial variability. Brookman stated that the analysis should take into account depths of 0 to .25 feet, 0.5 to 1 foot, and 1 to 1.5 feet. He did agree that the Meadowood East area still requires an additional 75 to 100 locations sampled and analyzed for total and SPLP pesticides in order to have a statistically valid representation of site conditions.

Mr. Hollister asked Mr. Brookman if the issues the applicants have proposed regarding site remediation meet with Mr. Brookman's proposal. Mr. Brookman replied that he has recommended that any areas where pesticide levels have been reported to be more than two times the appropriate standard be removed off-site prior to any soil mixing. The applicants have not yet agreed to this.

Regarding additional pilot testing, Mr. Brookman suggested that the Commission consider whether or not the applicants' proposed 10-acre pilot test unduly risks mobilization of pesticides into the environment. He suggested that one acre could probably be enough to give them a good sample site. Mr. Hollister asked if a one-acre pilot test wouldn't be violating Dr. Anagnostou's recommendation for a ten-acre test.

Robert Melvin, again, asked Mr. Hollister to ask Mr. Brookman specific questions about his letter and not to place Mr. Brookman in the position where he has to be the judge of all the evidence that has been submitted. Mr. Hollister explained that he is just trying to determine what Mr. Brookman's recommendation is. Mr. Brookman replied that, no matter what size the pilot test area, Dr. Anagnostou's recommendations were based on the results of the statistical analysis and the area of highest concentrations of pesticides. So, if it is decided to perform just a one-acre test, that one acre would be contained within the ten acres where the highest concentrations of pesticides were found.

Mr. Brookman stated that he has not seen proposed by the applicants any sediment or surface water sampling of the wetlands adjacent to the soil mixing areas. He also has not seen a proposal for a contingency plan in the event that pesticides above baseline levels are detected in groundwater, sediment, or surface water at any point during the post-remediation period.

Mr. Hollister asked Mr. Brookman if it is his opinion that the soil mixing plan proposed by the applicant, as revised in the letter from the applicants dated July 10, 2000, is likely to threaten public health or safety.

Mr. Brookman replied that his opinion is given in the last paragraph of his own letter dated July 10, 2000 in which he states, "If the recommended changes are included, the data hopefully will show that this approach to soil remediation will be protective of human health and the environment. However, since this remedial technique is not widely accepted, the data must be continually evaluated to ensure that appropriate safeguards and adjustments are identified and implemented on a timely basis."

Bob Potterton expressed his frustration that he was hearing some of Mr. Brookman's recommendations for the first time this evening, but he reviewed the letter from Mr. Brookman and stated the following regarding each item in the letter.

Item #1 - The applicants have no objection to what Mr. Brookman is proposing and agree to his site characterization recommendations as a condition of approval.

Item #2 - "The site remediation goes well beyond what is required by the DEPs Remediation Standard Regulations (RSRs). It has very little justification from a health-based standpoint. The RSRs are based on the fact that you don't want to have twice the criteria after you'd concluded your mixing and there's a health-based reason for that. There is very little justification for removing hot spots that can be adequately treated regardless of how you decide to treat a particular contaminate release to that level. If you can treat to the level that is protective of human health and the environment, then it doesn't make any sense to set an arbitrary level and say that that's where we're going to remove those soils. When you're talking about pre-remediation soil removal, any type of criteria that you apply to that beyond that which cannot be remediated safely is an arbitrary criteria."

Item #3 - Agreed to look at an area of less than 10 acres, though he does not agree that the 10-acre site poses undue risk of mobilization of pesticides into the environment. Does not agree to sampling of soil and soil gas below and adjacent to the mixing zone six months after the pilot test is completed. Does not agree to sampling below the mixing zone prior to any mixing. Agreed to all other items, but has to check with Dr. Kevin Miler regarding the dieldrin Limiting Value.

Item #4 - Agreed to all.

Item #5 - Agreed to all.

Item #6 - Agreed to all.

Mr. Potterton stated the items that the applicants have not agreed to as follows:

1. Has not proposed to remediate to strict RSR criteria at each sampling location.

2. Soil removal of any areas where levels exceed two times the appropriate standard.

3. Has not proposed sampling of soil and soil gas below and adjacent to the mixing zone six months after the pilot test is completed.

4. Sampling below the remixing zone prior to any mixing.

Commissioner Sharpless reminded Mr. Potterton that, at the July 6, 2000 meeting, he had asked Mr. Potterton how he could verify his statement that chlordane migrates very slowly (if at all) downward, but mostly moves vertically. Mr. Potterton had assured Dr. Sharpless that, if he researched the literature he had been given, he would see that statement. Commissioner Sharpless reported that he researched three references and found nothing to justify his statement that, after remixing, the downward motion of chlordane would be extremely slow. Potterton replied that he did not have the information immediately at hand, but he believed that it had been submitted with the previous application. The references that Commissioner Sharpless researched were The Agency For Toxic Substances and Disease Registry (ATSDR), U. S. Public Health Services, Toxicological Profile: Chlordane Environmental Fate Section (CRC Press, 1997 [submitted by applicant] and University of Michigan Libraries, December 1989). Sharpless pointed out that there was information left out of the first version (submitted by the applicants), i. e., (underlined portion was omitted from copy submitted by applicants) "In soil, chlordane will absorb to the organic matter and volatilize slowly over time. It will not leach significantly, in general, staying in the top 20 cm of most soils and, for some soils, remaining for long periods at this level over 20 years ... Although this is somewhat dependent on the exact composition of the soil,...in general, sandy soils, or soils with small amounts of organic matter, will retain chlordane less than soils with high clay and/or organic content. Mr. Potterton agreed with the statement, and stated that he believed that sufficient testing has been performed on the site to prove that the chlordane has not leached into the groundwater, and that soil mixing is safe.

Dave Ziaks, engineer, reviewed the "Erosion and Sedimentation Control" portion of the memo from the applicants, dated July 10, 2000, including Construction/Development Sequence Details Stormwater General Permit, and Monitoring and Inspections, and the "Drainage and Utility Plans" and "Lawn Management Plan" portions of the memo.

Commissioner Miller stated that it will be difficult to enforce the items in the Lawn Management Plan. If the plan is violated, the damage has already been done and the action cannot be reversed. Ziaks replied that, if you keep it in perspective, if one resident applies twice the amount of fertilizer stipulated in the plan, "it's not that serious." Miller also pointed out that a violation will also be difficult to detect unless one actually witnesses a violation taking place. He also asked if a "slow-release fertilizer" is commercially available. Mr. Ziaks replied that every fertilizer available is a slow-release fertilizer.

William Richter, landscape architect, distributed drawings of the site grading plan showing the crossing between C1 and C2, the only proposed activity on the site that will have actual wetland impact. The existing crossing is to be expanded by filling 647 feet of wetlands by extending the culvert and expanding a 50-foot right-of-way through there. This is the only point of access to that area of the site. Any other crossing to access the area would have greater impacts.

Commissioner Sharpless reminded Richter that Dr. Klemens made a point at a previous meeting about the connection between Wetlands 1 and 2 being interrupted by a road that crosses between Spring Hill Road and Meadowood. Sharpless asked Richter to comment on the possibility of that road being removed. Richter replied that the connecting road is not within any regulated areas, so he has no comment on it. Sharpless pointed out, though, that it may have direct impact on an organism that is vital to the wetlands. Ed Pawlak, environmentalist, replied that the 1,000 feet distance between Wetlands 1 and 2 and the agricultural land use precludes any migration between Wetlands 1 and 2.

Commissioner Sharpless asked Pawlak if he is excluding organisms migrating between Wetlands 1 and 2 or if "gene flow", as talked about by Dr. Klemens, is an issue. Pawlak replied that it is extremely unlikely that any wildlife move between Wetlands 1 and 2.

Tim Hollister asked Bob Potterton to state the areas of disagreement still remaining between the applicants and Gordon Brookman. Potterton replied that the two areas of primary technical disagreement are the issue of removing soils containing two times the RSR criteria and above prior to remediation, and demonstrating compliance with the criteria and meeting the default direct exposure and pollutant mobility criteria in every single sample, post-remediation. Other than these two areas, the applicants are agreeing to follow all of the recommendations of Mr. Brookman and Dr. Anagnostou.

Chairman Beach asked Mr. Potterton if he has ever performed a project like this directly over two aquifers that supply the main drinking water for a town. Potterton replied that he has conducted numerous remediation projects of aquifers that have been impacted and were shut down as a result of pollution, but the issue of residual pesticides on agricultural property is a very new thing.

Wayne Cobleigh, of North Simsbury Coalition, wondered if the analytical procedures available to perform the air sampling analysis can get down to the low levels of chlordane and dieldrin recommended by Mr. Brookman and, since this analysis cannot be done in the field, "real time", the protection needed if the test fails to meet the recommended levels would come several days after the event which caused the exceedance of the standard, after the damage has already been done.

Mr. Cobleigh wanted to make part of the public record a newspaper article from 7he Hartford Courant, published in 1998, that talked about 'The disappearing act of EDB" in soil and groundwater in this area of the state. It talks about a concern for the chemicals getting lost in the micropores of the soil particles, so that when the soil is sampled, the particles are not found. They slowly, over a long period of time, leach into the groundwater. Cobleigh noted that the same phenomenon may be happening with chlordane on this site.

Joan Coe, 26 Whitcomb Drive, wanted to know what impact the soil mixing project would have on her property and neighboring properties. She also wanted to know if there would be more water runoff on her property and, if so, what kind of runoff.

Rich Afrigola, North Drive, asked why the applicants have chosen soil mixing as opposed to soil blending. He thought soil blending seemed a much less intrusive process. He also stated that slow-release fertilizers are used primarily by people who grow plants in greenhouses and use soil-less mixes. They come in pellets and release their chemicals slowly because they're affected by temperature. They usually have a 15/15/15 concentration, not typically used on a lawn. He stated that the only slow-release fertilizers available for lawns are organic fertilizers, generally more expensive than chemical fertilizers.

Jim Gozzola, Briarwood Drive, expressed his opinion that, if the applicants cannot agree to all of the recommendations set forth by the town's experts, there should be no approval given.

Gerald Knobloch, 121 Hoskins Road, stated that his property is directly downwind of pesticide spraying that has taken place on the Meadowood property in the past, yet he was never notified prior to the spraying taking place.

A motion was made by Commissioner Clayberger to close the public hearing. Seconded by Commissioner Nowak and unanimously approved.

A motion was made by Commissioner Sharpless that all of the proposed activities are regulated activities by reason of having various effects, including an unreasonable risk of contamination of wetlands, construction activities in a wetlands and deposition of materials in a wetland. Seconded by Commissioner Miller and unanimously approved.

A motion was made by Commissioner Sharpless that all soil mixing, removal, import, and reseeding activities; the emergency spillway proposedfor Wetland 1; the road crossing and replacement of culvert proposed for Wetlands 3 and 5; the storm drain, regrading and storm drain crossings proposedfor Wetland 10; the storm sewer proposed for Wetland 6; the sanitary sewer force main and grading proposed for Wetland 7; the replacement of the existing 30" culvert, headwall and catch basins proposed in IW3; and the drainage swale proposed for Wetland 12 are significant activities by reason of having the potential to cause contamination of a wetland. Seconded by Commissioner Clayberger and unanimously approved.

Commissioner Sharpless clarified that, of all the activities proposed, the only activities he is calling not significant are the stone dust walk-ways and the boardwalks.

Commissioner Sharpless stated that he had hoped that the applicants would withdraw their application because there is so much contingency built into the results of the pilot test which the commission will require. He stated that is seems obvious to him that the commission should deny the application and let the applicants come back and apply after they re-examine the site properly with spatial analysis and an increased number of samples. Then, the applicants must present to the commission a plan for demonstrating that the increased mobilization which is evident from their first test will not result in contamination of groundwater. The applicants also need to address how they are going to handle volatilization versus capping with topsoil.

Chairman Beach expressed his concern that the non-volatile components of chlordane still may be tied up in micropores or have gone into groundwater. He stated that the applicants need to demonstrate where the non-volatile components are going before the commission can encumber an area like this that overlies two essential aquifers.

Commissioner Miller stated that the areas of disagreement between the applicants and Mr. Brookman are fundamental to the remediation of the site given that the applicants are proposing an unproven technology. He felt that the applicants' response to what he felt was reasonable criteria was unacceptable.

Commissioner Clayberger noted that the main concern of the commission has to do with the proposed soil mixing. It is an unproven technology and is not widely used, yet, the commission is asked by the applicants to take their "word for it", that "it's okay". He finds it very hard to approve something that's as vague as this is.

Commissioner Miller stated that it seems to him that the applicants have been saying that they are prepared to deal with any problems that may arise, but they don't seem to be trying to prevent exposure to the problems. He hasn't heard any legitimate institutional control proposed.

Commissioner Miller also stated that his opinion was swayed by the comments made by Dr. Klemens regarding the potential for the sedimentation basins to become decoy areas for amphibians and the increase in nighttime mortality rates among amphibians with the installation of a road.

Commissioner Sharpless also agreed with Dr. Klemens' observation that one does not need large numbers of organisms to migrate, just a small, important number of organisms need to migrate for "gene flow". He stated that, anything the developer can do to make it easy for those "hearty" few organisms who could make it those thousand feet between Wetlands 1 and 2 deserves to be considered.

Commissioner Miller stated that he has no faith in the Lawn Maintenance Plan. He doesn't believe it is enforceable or has any value. Conunissioner Bucknam concurred.

Chairman Beach stated that, in all his time on the commission, he cannot remember granting a permit with more than one condition of approval. In this case, in addition to their 11 initial activities, the applicants are suggesting another 13 points as conditions of approval.

Commissioner Clayberger noted that no good, concrete, definite data has been presented to prove that soil mixing works.

Commissioner Sharpless noted that the applicants' economic comparison of remediation alternatives was not very good because it only took into account one mixing, and the applicants were operating under the assumption that the commission would go along with the six-times-the-residential-direct-exposure criteria.

Chairman Beach noted that, in several areas in New Jersey, two, or even three, mixings were required, and that the levels of pollutant that were presented in the majority of the New Jersey studies were considerably less than what is on the Meadowood site.

Commissioner Miller added that the economic comparison also did not include the import of topsoil to allow lawns to be planted.

Chairman Beach reiterated that, if there is volatilization of pesticides in the soil, and nutrient-rich topsoil is brought in to cap it, through volatilization, the nutrients will be trapped in the new layer of topsoil, and sampling five years later may show that there is a new polluted layer of topsoil.

Commissioner Miller noted that, while the commission had issues with the crossing at Wetland 7 because of the steep slope that leads to a high-quality wetland, not much has been proposed by the applicants to mitigate the impact of the crossing on the wetland.

Chairman Beach stated that the bridge crossing of Wetland 7 had been eliminated but there was still a proposed forced sewer main crossing through it. He also stated that the applicants have addressed a number of the concerns of the commission and are definitely making a sincere attempt to move in the right direction.

Commissioner Bucknam asked Attorney Melvin if the commission is able to incorporate by reference the decisions made on the same issues in the previous application. Mr. Melvin replied that the commission can reference the concerns that they have if the activity is similar to that proposed in the first application.

Commissioner Sharpless asked Laurie Whitten how the development west of Wetland 5 can have a single entrance, but there has to be two entrances for the two areas east of Wetland 5. Ms. Whitten replied that there is a letter from Kevin Kowalski, Fire Marshal, dated June 28, 2000, that addresses that issue, among others.

Regarding the proposed crossing of Wetland 5, Chairman Beach stated that this is an existing crossing, it seems like the most logical place to cross, and he doesn't see any feasible and prudent alternatives. He, again, stated that the applicants have done a fairly good job of addressing many of the concerns the commission had about the crossings and the impact to the wetlands.

Commissioner Miller asked if there were any alternatives proposed to the detention basins so that they wouldn't act as decoys for breeding for migrating amphibians as they're coming down toward the wetland. Ms. Whitten replied that the basins could either be planted with vegetation or they could be made into a permanent wetland. Chairman Beach reminded the commission that the applicants had stated that those were not their preferred designs on a site of this sort.

Commissioner Sharpless asked how the commission felt about dioxin testing. He stated that, considering the number of fires that have taken place on the property, testing should be done to "clear the air of that issue". Commissioner Bucknam asked if the commission is really concerned about the dioxin as it relates to the wetlands and watercourses, or, as the applicants may point out, is the commission trying to be the "public health commission"? With that in mind, Commissioner Sharpless replied that he would prefer to be silent on the issue of dioxin.

Attorney Melvin pointed out a couple of the decision criteria that relate to the commission's purview as it may relate to dioxin contamination. Hearing that, Commissioner Sharpless reconsidered his previous statement and said that the dioxin issue should be looked at.

Chairman Beach asked Mr. Melvin what specific language is in the Intervenor Petition regarding whether or not the commission has to make a finding as to whether the petitioners' assumption is correct. Mr. Melvin replied that the commission should look at the record as a whole, including the petitioners' assessments, and determine whether or not the commission can authorize conduct that is reasonably likely to result in pollution and the destruction of public trust and natural resources. Then, he stated that the commission should determine whether there are prudent and reasonable alternatives to the conduct.

Mr. Melvin asked if there were other sensitive issues related to the property that the commissioners are concerned about. Chairman Beach replied that the commission has stipulated that they do not want soil mixing or removal right in the wetlands themselves, and Commissioner Miller stated that he would like to ask the applicants to determine what the cost would be of removal of any soils above two times the RSRS.

Comrnissioner Miller also reiterated that Dr. Klemens had testified that Wetland 1 has an ideal habitat for the Eastern ribbon snake, though he did not observe any.

A motion was made by Commissioner Clayberger to continue the meeting until Wednesday, July 19, 2000 at 7:30 P. M. in the Main Meeting Room of Simsbury Town Hall. Seconded by Commissioner Nowak and unanimously approved.

IV. RECEIPT OF APPLICATIONS

A. Application of Town of Simsbury for three soccer fields on Iron Horse Boulevard.

V. ADJOURNMENT

A motion was made by Commissioner Nowak to adjourn the meeting at 11:21 P. M. Seconded by Commissioner Bucknam and unanimously approved.