Over the last few months a great deal of energy has been expended identifying sites where contaminated materials from the Aggregate Fill Pile have been distributed. While there is still much more to be disclosed on this front, the ‘elephant in the room’ has been the Fill Pile itself. From early in this process a few voices have warned that the unpermitted capped landfill on Richard White Way will result in significant liability to our community. On November 6th those concerns were validated when the Connecticut Department of Energy and Environmental Protection (CT DEEP) issued a Notice of Violation (NOV) to the Town. As it is within CT DEEP’s purview to demand the complete removal of the Aggregate Fill Pile, we could be looking at an eight figure remediation process.
History of the Pile and Berm
To understand the impact of the CT DEEP NOV, a brief summary of events leading up to the unpermitted closure of the Aggregate Fill Pile is in order. This includes: The discovery of PCBs being dumped on the site in December of 2016 by LES Enviromental – a Licensed Environmental Professional (LEP) hired by the Town. The subsequent testing and removal of contaminated material in early 2017. The creation of a berm utilizing Aggregate Fill Pile materials to cap the unpermitted landfill that was beneath the Fill Pile in response to complaints from the beach area neighbors. This discussion from the August 26th, 2019 Board of Finance provides an enlightening summary of the aforementioned events:
This back and forth is very revealing. It starts with Mr. Flynn summarizing the history of the relationship between Julian Development (the Contractor) and the Town as it related to the Fill Pile. Mr. Flynn recounts how the Pile was growing, not shrinking as it should have been, and that it was clear that things at the site were not as they were supposed to have been. Also revealed in this discussion is that the Contractor had not fulfilled it’s obligation to perform testing for more than three years. Next, Mr. Tetreau explains the chain of events that led to the discovery of PCBs that were brought onsite by Julian Development trucks.
Mr. Tetreau: “So literally – until December 13th – that was our first indication when the test came back that there were contaminates onsite. That’s why we moved so quickly to shut the yard down – notify DEEP – and I believe that was the day when Mr. Michelangelo reached out to Mr. Carey if I was hearing him correctly.”
Mr. Flynn: “So here’s my question: For three years Mr. Bartlett and Mr. Michelangelo had been responsible for the Pile. A Pile that was growing. A Pile that testing wasn’t being done. When we did the testing, we found that there was contaminates, yet we still left Mr. Michelangelo and Mr. Bartlett – who hadn’t been doing their jobs – In charge of the Pile. In charge of the clean up of the pile. In charge of remediation of the Pile and in charge of the berm. Why?”
Mr. Tetreau: “Because at that point, all we knew was that Julian had come in and dumped a load of PCBs there – PCB laden soil…”
Mr. Flynn: “Well we knew the Pile had been growing and we knew that we hadn’t been testing for contamination up until the Fall – until you guys got involved”
Mr. Tetreau: “Right – and we knew that – that – we knew that we hadn’t been testing for it…ummm..we also – we didn’t know what Julian had been doing or not at that point”
It was at this moment that Mr. Flynn asked a pivotal question:
Mr. Flynn: “Did we ask at that time and what did they respond?”
Mr. Tetreau stammers in his response because, shockingly, it appears no one thought to ask the Contractor (and get them on record) as to whether they had been performing the required testing.
Mr. Tetreau: “The…uummm…yeah I’m not clear in their response at that point. They’d been very difficult to get that information from since then..”
So here, we have a contractor that has not met it’s commitment as the Pile kept growing. The contractor didn’t perform the State mandated testing as required in the RFP. In September of 2016 a Citizen’s complaint made then First Selectman Tetreau aware that the DPW Superintendent’s son was inappropriately working for Julian creating an ethics violation. In October, an internal Town audit found multiple irregularities in the relationship between the Town and Julian that included the lapse of insurance certificates and performance bonds. In December, it was discovered that Julian trucks had dumped PCBs on the Fill Pile site.
Despite all of this evidence – the Town leaders involved at the time -including First Selectman Tetreau, Town Attorney Lesser, and Conservation Director Brian Carey – agreed to allow Julian Development’s LEP, Go Environmental, lead the PCB site testing and remediation efforts under the supervision of the Town’s LEP. Why, if the Town had clear evidence that Juilan’s trucks were dumping contaminates at the site, would we allow Julian’s representatives to supervise the testing of the Pile they had contaminated? This is nonsensical. But as you can see from the Remediation After Action Report – that is exactly what happened:
Continuing the conversation from August 26th Board of Finance meeting – The questions began to focus on the status of the unpermitted landfill closure at the Aggregate Fill Pile site and what kind of financial exposure the Town might be facing as a result of this situation:
Mr. Flynn: “But I want to get to … (I see you Mr. Mitola) … But I want to get to the Berm. Because then all this stuff was used in the Berm. Right. And I saw in the affidavit the whole thing that the State hasn’t signed off on that. What does that mean to us and what’s our financial exposure as relative to the Berm – to the cost – what’s the next step there? What are we doing there?”
Mr. Tetreau goes out of his way to repeatedly reinforce that materials at the Fill Pile have been deemed safe before handing the question off to his Conservation Director:
Mr. Tetreau: “Okay, I’m gonna turn that over to Mr. Carey in a moment since he’s talking to DEEP about that but one of the things I want to be clear on is that we used 40,000 cubic yards to build the Berm out of the Aggregate Pile – roughly half, right – all that material was tested before it was used on the Berm…“
Mr. Flynn: “So why hasn’t the State signed off on it then? I don’t understand that process, so…”
Mr. Tetreau: I understand. I am not trying to solve the question with State’s paperwork…I just want it clear that that material was tested – almost half the pile then – coupled with our testing from September to December at that point. So, all those tests came back saying we had the appropriate type of material in the Berm and in the Pile. With that I am going to turn it over to Mr. Carey.”
Mr. Carey then explains the history of the design and construction of the Berm – Highlighting that Osprey Environmental, a Licensed Environmental Professional, was intimately involved in the process:
Mr. Carey: “So the Berm issue – again, uh they, Joe had that design with UCONN Landscape Architecture and then they hired Osprey Environmental – who actually has had a lengthy history of doing monitoring at the site – from developing health and safety plans to doing the stormwater monitoring and, what I’m learning now too – is that there was actually kind of an extensive process to have them test all the catch basin waste and street sweepings. I’m currently reviewing that information to see exactly how that works but – the State does allow for the beneficial reuse of street sweepings and catch basin waste as long as it is being tested, deemed to be clean, and then you can use it in areas adjacent to sidewalks and things like that – So, I am trying to understand exactly what that process was…um and Osprey Environmental the LEP who was working up there, for the Town, umm you know – we sat down with him a couple of times to try and understand – you know – basically the process…umm, but as far as the Berm is concerned – yes, they basically developed landfill closure plans because the Berm is closure of what is called an unpermitted solid waste unit”
Mr. Carey then goes on to explain how it was discovered that the Aggregate Fill Pile actually sits atop a legacy Town landfill circa the 1950’s or 1960’s that pre-dates and State environmental laws. That dumping of municipal waste in the marsh was unregulated back then but a permit would be required to cap and close the otherwise ‘unpermitted’ landfill. That materials such as the asphalt road scrapings, catch basin waste, etc. are generally permissible for use capping a landfill and that there was a health and safety plan in place to ensure the safety of DPW workers involved in the construction of the Berm.
Mr. Flynn then re-asks the million dollar question – then why hasn’t the State approved our landfill closure permit?
Mr. Flynn: “So how come the State hasn’t approved this yet? Like, what are the steps and what’s our exposure with the State related to the Berm?”
Mr. Carey: So I have talked to Frank Gagliardi(sic) who is the solid waste engineering – uh – the lead of the Solid Waste Engineering unit umm – for the State for the DEP(sic)..and basically, since this has all come up in the past few weeks, you know, everyone has been on vacation at the DEP(sic) – I’ve walked them through the issues and we had a conference call to try to explain where the process is. So they have reviewed the permit, and um, and basically, you know, they understand and have reviewed it in, in theory and have issued comments back to the professional engineer – they responded – and then this whole – I guess they found out that there was some -uuhh- that there was a uuhh – there was a pending legal matter on the issue and they kinda sat on it since then – I talked to them about that and what we have to do is go have a meeting with them but I said very pointedly – do you ever envision based on the data you have received or the plans that you have received – seeing us having to remove that Berm or modify it in any way and his short answer was ‘I don’t think so‘ and that’s as pointed as I can be…”
Mr. Flynn: “So it sounds like you were very pointed and his answer was ‘I don’t think so’ meaning – get back to me when its (indecipherable)…Did we move forward without having the appropriate permits to move forward in building the Berm?
Mr. Carey: “So that is – uuhh- yes..but”
Mr. Flynn: “Okay…”
Mr. Carey: “…but that is not…that is not always an issue with the DEP – uuhh – meaning that, you…”
Mr. Flynn: “(laughs) They’re probably not going to say that in their official handbook – but I get it”
Mr. Carey: “We are going to close the permit – basically – with them”
Mr. Flynn: “But we moved forward without the appropriate permit. We built the berm without the authorization from the State to do it. Now the State knows we’ve done it. You’re coming in late to the party. You’re walking them through it and the State is saying ‘We don’t think we’re going to have a problem with it.’
Mr Carey: “That’s correct.”
Mr. Flynn: “So there is exposure there but you are managing it.”
Mr. Carey: “That is absolutely correct”
One thing that stood out for us in reviewing this back and forth was why did it a seem as if Mr. Carey just beamed in from outer space and was only getting up to speed on this situation during the prior two weeks? We understand that he had just taken on the role of temporary DPW Director, so perhaps this was possibly why all of his descriptions were of actions other had taken? Yet – it seems odd to us that he seemed so detached from this situation prior to August 2019.
Specifically, Mr. Carey was brought into the picture on December 13, 2016 when it was disclosed that PCBs had been dumped on Town property. He was, and still is, the acting head of Conservation. There were clearly contaminants on the fill pile – a pile (with the elevation from circa 2016) that would have been at risk of seeping into a coastal waterway. Wouldn’t that have placed Mr. Carey in the middle of the conversations with CT DEEP, as part of the team that oversaw the testing and remediation of the PCB contaminants in 2017?
If Mr. Carey wasn’t intimately involved with the Fill Pile from 2016 on, the burning question would be – why? Clearly, once the tests revealed illegal dumping on the site on December 13, 2016 the First Selectman and Town Attorney were alerted. In fact, a civil suit was subsequently initiated against Julian Development. So, if the Conservation Director’s input and directiion were not included in the design and remediation process, it begs the question why? Why, would he be left out of the mix in something that would very much would be in Conservation’s jurisdiction?
Conversely, if Mr. Carey was intimately involved every step of the way from 2016 to present, why all the third party descriptors (highlighted in bold) in the transcript above – making it seem as if he was just coming up to speed on all that had transpired?
Later in the conversation Mr. Mitola asked whether it was appropriate to build the Berm prior to receiving the permit to do so:
Mr. Mitola: “So if I am understanding you correctly on the Berm issue, the Town was working in coordination with Osprey, and Osprey was working in coordination with the State during that whole time period…”
Mr. Carey: “Right”
Mr. Mitola: “Okay, and…and it seems like…we put the cart before the horse – but is it unusual, inappropriate, umm, to start the construction project of this berm before a permit is issued?”
Mr. Carey: “So, umm, my job is permitting. So I would say – I’d answer that question that that’s not the proper thing to do. You always to wait until the permit is in hand. Is it something that happens – yes. I want to preface it by saying there is no Consent Order or Notice of Violation that’s been issued – to date – from the State.”
Mr. Flynn: “They could if they wanted…”
Mr. Mitola: “Right…Okay”
So, on August 26th, Mr. Carey explained that the Town clearly should have had the ‘permit in hand’ before the Town started building the Berm. He did clarify that an indicator that this isn’t a serious problem was that CT DEEP had not issued a Notice of Violation. Since then, it was reported that a search warrant had been served on October 3rd, 2019 on Osprey Engineering, LLC – the LEP that the Town engaged in testing the material used in the creation of the Berm at the Aggregate Fill Pile. Then, on November 6th, CT DEEP PCB Enforcement Unit issued a Notice of Violation indicating that PCB contaminants in Aggregate Fill Pile “have created a source of pollution to the waters of the State…”
How serious is the situation?
We can’t say with 100% certainty what the State will require of the Town next but a few things can’t be ignored. First, if you were to ask a CT DEEP investigator what frustrates them about their job, you might learn that due to the way the laws are written in CT – DEEP doesn’t typically perform their own testing of suspected contaminated sites. In fact, you would learn that the laws compel CT DEEP to rely on the reports of Licensed Environmental Professionals (LEPs) hired by the individuals, corporations or Towns to provide the testing results DEEP uses to determine compliance with State statutes.
So it was extraordinary that CT DEEP descended upon Fairfield’s Aggregate Fill Pile in November and spent no less than four, eight hour, days testing the pile themselves – indicating that this investigation has risen to a whole new level. If more contaminates are found, could CT DEEP ask the Town to remove the the entire 40,00 cubic yard berm and remaining 60,000 cubic yards of aggregate fill? In short, yes. If they did, what type of exposure would the Town and it’s taxpayers be looking at?
To answer this question we can use the 2017 PCB remediation at the same site as a guidepost. In 2017, via the Remediation After Action Report, we learned that the Town removed 134 triaxle truckloads containing 3,627.1 tons of contaminated soil.
During the August 26, 2019 Board of Finance meeting a financial summary of expenses to date was presented that indicated the testing and removal of those materials totaled $396,260.15.
By simply dividing the $396,260.15 by the amount of material removed (3,627.1 tons), we determine that removal costs (circa 2017) were approximately $109.24 per ton. The Aggregate Fill Pile site has up to 100,000 tons of above ground materials that may need to be removed. Hence 100,000 tons X $109.24 per ton would equate to an estimated $10,924,985 to remove the entire Fill Pile. This assumes similar types of contaminates are found and can be removed in a similar manner under a similar cost structure.
Is this our worst case scenario? Sadly no. If you read the arrest warrants you will see reports that – to paraphrase – indicate that it was open season for dumping banned demolition materials at the Fill Pile site. Additionally, it was reported that large holes were dug – into an old landfill – to bury hazardous materials that were being illegally accepted at the fill pile. From the Arrest Warrants:
While most people don’t want to consider the possibility that State would make the Town investigate the 60 plus year old landfill that lurks below ground level, if there is credible reason to believe hazardous materials have been buried and are leaching into our waterways – why wouldn’t the State require us to do just that? That would bring this situation from very bad to the worst case scenario. What does that mean? Think in terms of the cost to build a new school to resolve this combination of mismanagement and criminal collusion.
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