NEWS

Committee recommends RTM rejection of Conservation's Mahackeno approval

By:Meg Learson Grosso, Staff Writer
07/26/2007
Printed in the Minuteman

The meeting last Wednesday was the fifth session at which committee members considered the matter, and they will present their full recommendation to the RTM on Aug. 6.

The four members present, Diane Cady, District 1; Michael Rae, District 8; Sean Timmins, District 2; and Judy Starr, District 1, all voted to recommend a reversal. Jo Ann Davidson, District 6, was absent.

Immediately following the vote, all expressed agreement with Rea's statement that "This is not about the Y or about individuals on the Flood & Erosion Control Board or (members of) the Conservation Commission ... It's about a single decision." "It's not about the RTM members, either," said Ron Malone, District 6.

"It's about the environment," said Timmins.

Malone was there because all RTM members are invited to attend meetings of any committee and they may speak even at work sessions, though only committee members may vote. One of the issues cited by the committee was the reliability of the FAST septic system. Timmins noted that it was the RTM's job to determine whether the Conservation commissioners had made their decision based on a lack of data showing reliability.

Rea said, "What information do you have that makes this system reliable? I haven't seen it."

"That's why there's a moratorium this year," said Timmins, referring to the Connecticut legislature's recently passed moratorium on new large septic systems. The Y would specifically be exempt from the moratorium.

Timmins noted that the commission "took out the [statistical] outliers," but "A failure is a failure is a failure. I can't argue the reliability by removing the failures."

There were 57 conditions that the Conservation Commission put on its April 26 approval of the Y's application to build a 100,000 square-foot facility with 375 parking spaces and a 34,000 gallon septic system on the banks of the Saugatuck River.

Of the 57 conditions, number 24 is one of the longest and most complicated and caused the most discussion on Wednesday night.

Condition 24 involves what can be done if the FAST (fixed-film activated sludge treatment) system fails to remove enough nitrogen. Excess nitrogen is undesirable in a body of water, because it causes plant or algae growth that remove oxygen from the water and makes it difficult or impossible for fish and other small animals to live in that water. The Connecticut Department of Environmental Protection's (DEP) allowable limit for nitrogen emission is 10 mg per liter.

It is known that the FAST system will allow nitrogen many times over the accepted DEP levels for the first three months, because the biomass which removes nitrogen takes that long to grow big enough to be effective. After that, the system will prevent a good deal of the nitrogen produced by a septic system from going into the ground, and eventually into the Saugatuck River, if it works properly. However, many critics say that FAST is prone to failure. Condition 24 deals with what to do if FAST doesn't work and "that condition is more important now that we know that the health district can't shut (the Y) down (for emitting excess nitrogen)," Rea said.

Dewey Loselle, District 8, said, "The (Conservation) Commission agreed to (condition) 24 based on thinking that the health district had some ability to respond."

Matthew Mandell, District 1, said there was an assumption by the Conservation Commission that the Water Pollution Control Authority (WPCA), or the town's three selectmen (currently Gordon Joseloff, Shelley Kassan, and Bob Lasprogato), have the power to shut the Y down under Condition 24 as long as the Health Department concurred.

However, the Director of the Westport/Weston Health Department, Sue Jacozzi, said in an e-mail read to the RTM on Tuesday night that the health department has no such power in the case of pollution from nitrogen or phosporus. This is in contrast to her previous testimony of Monday night, when she indicated that the Health Department could cooperate in anything that the town wanted it to do.

Referring to the "Action Plan" or protocol to be followed by the operator if there were a failure of the system, Ann Marie Flynn, District 6, said that condition 24 says that a meeting shall be called at which the operator of the Y's system, an engineer hired by the town, the Conservation Department, the Health District and a representative of the WPCA "shall discuss what remedy shall be initiated."

However, Mandell replied that the conditions also refer to an action plan, or protocol, that doesn't yet exist.

Hadley Rose, District 3, pointed out that the Commission's condition 24 also refers to Section 118-17 (b) and (c) of the Town code regarding large septic systems and there is no section (c). Section (b) merely refers to financial liability of the owner of the system. It is Section (a) that says that the town can either make repairs, cause the system to cease operations (with the concurrence of the Health District), or cause the system to hook up to a sewer (not an option in this case).

Rose's remark was followed by Rea's comment that "There are so many holes in this condition, that, at the end of the day, we say, 'It's too much.' "

Rea added that "The enforcement agency is the state and we know that the state hasn't done much."

Timmins also brought up the fact that the Conservation Commission, led by Chairman Lee Starr, had devised a rolling average of acceptable limits of pollution that can begin again and again, if the system doesn't meet its averages during the first three months, and so on.

Timmins pointed out that this rolling average could create "an infinite unenforceable operation."

"The DEP permit does not allow for averaging. It can't be any clearer," said Timmins. Noting that the Conservation Commission put in seven conditions for action based on the rolling averages. "The weakness is the statistical neutering ... you can say that a violation isn't a violation because two months before it makes the average," said Timmins. In coming to their decision, the RTM Environmental Committee also considered the number of trees that would be taken down, riparian buffers, whether the RTM had jurisdiction over the decision, baseline testing for pollution in the River, and the effect of the construction on small animals, both vertebrates and invertebrates.

On the subject of trees, Rea said he was concerned that the Conservation Commission hadn't known how many trees would be taken down. He noted that "(Conservation Commissioner (Gerald) Kagan was here and Pete Romano (of Land Tech, hired by the YMCA), was here" (at previous meetings) and that they didn't seem to know how many trees were being taken down. Rea said that when he went to the tour of Mahackeno given for RTM members, "I asked Pete Romano what the blue ribbons on trees meant. He said they meant 'Nothing now,' so I didn't get a good sense there was a plan."

"We don't have a count," said Timmins.

"The Conservation Commission was overreaching to give approval," said Rea. "I think the tree issue is a serious concern. It's not clear to me how the commission could make that condition (about re-planting one 3-5 inch diameter tree for every tree of 8 inches in diameter that is removed)," said Timmins.

"What if it's 5,000? We just don't know. If their decision had the intention of returning to the site the benefits that the trees would provide, then it can't be done," said Timmins.

Riparian buffers, or the vegetation, including trees, that lines streams and rivers, and prevents erosion, seemed also to be important to the RTM members. They noted that the Westport Conservation Department staff had recommended leaving buffers of at least 50 feet and the DEP had recommended 100 feet.