Opinion
Nos. FST CV 07 4011735 S, FST CV 07 4012483S, FST CV 07 4011845S
July 20, 2010
MEMORANDUM OF DECISION
These three appeals were taken by environmental intervenors (hereinafter "the plaintiffs") pursuant to Section 22a-19 of the General Statutes from the approval by the Westport Conservation Commission (hereinafter "the commission") of an application for the construction of a 102,000 square foot YMCA facility to house the Westport/Weston Family Y (hereinafter "Family Y") on a 34-acre parcel in the Town of Westport. The issues in this case arise because the commission's approval permits installation and use of an on-site sewage disposable system whose effluent would be received by adjacent wetlands and watercourses. Appeal CV 074012483 briefs an additional issue concerning the propriety of the vote which Lois Schine, a member of the Westport Representative Town Meeting (RTM), cast in connection with the RTM's review function of the commission's action. In plaintiff Cohen's appeal brief the claim is made that RTM Member Schine's alleged "bias and corruption" tainted the RTM's approval. However, on October 1, 2009 an amended complaint was filed containing no such allegation. Accordingly, the bias issue has been abandoned and is therefore not properly before the court. Robert S. Weiss and Associates, Inc. v. Wederlight, 208 Conn. 525, 537 (1988).
In the other two appeals the plaintiffs challenge the commission's decision on two grounds, viz: (1) the commission failed to give meaningful consideration to the ineffectiveness of the proposed sewage disposal system; and (2) the special conditions of approval (conditions numbered 17 through 31) referred to throughout as "the protocol" are invalid because they are prohibited under our Supreme Court's decision Finley v. Orange, 289 Conn. 12 (2008).
Additional facts necessary for a consideration of these issues are as follows. The Family Y is bounded on the east by the Saugatuck River also sometimes called "Lees Pond" and is bisected by Poplar Plains Brook. While the property also contains two wetlands which total approximately 35,090 square feet neither is involved in this appeal. Both appeal grounds concern the applicant's proposal for use of a particular wastewater [sewage] treatment and disposal system called a Fixed Activated Sludge Treatment (FAST) facility. On site sewage disposal is necessary because the municipal sewage system is not available to the site. The Connecticut Department of Environmental Protection (DEP) describes the FAST system as follows: "the technology facilitates a biological process in which bacterial microbes that have attached to a honeycomb media submerged in the wastewater feed on that wastewater as it is circulated through the media. An aeration process provides air to the bacteria and circulates the wastewater through the media. The FAST system produces effluent quality similar to a municipal type plant." The facility will include two septic tanks, an equalization tank, two FAST reactors, a denitrofication filter and six leaching beds. The forced main will carry the treated effluent to the Saugatuck River Watershed, the waters of which flow into Long Island Sound. Most of the system will be underground. The maximum daily flow of wastewater will not exceed 34,000 gallons. This system is designed to reduce the nitrogen content of the effluent to 10 milligrams per liter (mg/l).
I. Non Meaningful Consideration of the FAST
Plaintiff Cohen charges that the commission "failed to meaningfully consider the failings of the system and the inability of the Town (of Westport) to handle the system as needed."
The principles which govern this court's review of the commission's action are well settled. As a threshold matter, the plaintiffs bear the burden of proof that the commission acted improperly. Bora v. Zoning Board of Appeals, 161 Conn. 297, 300 (1971). "[I]n reviewing an inland/wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues on matters within the province of the administrative agency . . . This so called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence . . . (Internal quotation marks omitted.) Tarullo v. Inland Wetlands and Watercourses Commission, 263 Conn. 572, 584 (2003); accord Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88 (1993). Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence. Connecticut Fund for the Environment Inc. v. Stamford, 192 Conn. 247, 250, (1984)." River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, 269 Conn. 57, 71-72 (2004). (Alternate citations omitted.)
Substantial evidence in the context of this case requires that the record provide a substantial basis in fact that a specific harm to the wetlands or watercourses will occur from the introduction of sewage effluent into the wetlands or watercourse. Id. at 81. The identified adverse impact must be likely to occur and must be significant. Forsell v. Conservation Commission, 43 Conn.App. 239, 249-50 (1996). Nor does uncertainty as to the impact of a proposed activity on wetlands or watercourses justify a denial of an application. River Bend Associates, Inc. v. Conservation Inland Wetlands Commission, supra, at 79, n. 28.
With respect to plaintiff Cohen's specific claim of lack of meaningful consideration, our courts have given administrative agencies great latitude. "Although the requirements of substantial justice must be followed, strict and technical rules of procedure need not be enforced. A commission, operating at the administrative level under the circumstances of the present case, has a wide latitude in the mode permitted to parties in presenting their views before it. The implication is that it may use any procedure which is reasonable in attaining the end in view. Forest Construction Co. v. Planning and Zoning Commission, 155 Conn. 669, 676 (1967). An administrative agency is not required . . . to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair. Samperi v. Inland Wetlands Agency, 226 Conn. at 597." "It is not for the courts to say how many, if any alternative methods of accomplishing a desired result must be investigated or considered by municipal authorities before they decide on one particular method of proceeding. It can always be said that some other site is worthy of investigation or consideration. But at some point a definite decision must be made. Nor can the courts require consideration of any particular report or recommendation submitted. Much must be left to the discretion of the local authorities. Sheldon v. Centre School District, 25 Conn. 224, 227. This includes discretion as to how many sites to investigate and consider, and into how much detail that investigation and consideration should extend, before a selection is finally made." McAdam v. Sheldon, 153 Conn. 278, 281-82 (1965).
Although the McAdam case involved site selection by a municipal school board, the principle is equally applicable to a conservation commission in the performance of its administrative function. It would be improper for a court to dictate quantitatively to an administrative agency how much thought and analysis it should give to a particular issue. Nor does the plaintiff Cohen suggest how much more consideration should have been given or how that consideration could have been given more meaningfully by the commission. The court is impressed with the record evidence which indicates the devotion which the members of the commission gave to this application. The transcripts of the four separate work sessions clearly show that not only did they meaningfully consider the benefits and detriments of the FAST system but they agonized over the issue of its reliability after nine public hearing sessions and ultimately voted overwhelmingly in favor, with that vote resulting in a 37-page written decision. The dialogue among the commissioners demonstrates an in-depth evaluation of the likelihood of unreasonable harm to the wetlands and watercourses. In final analysis, the record shows that wherever the FAST system experienced problems in other locations, they were always corrected.
The commission's analysis includes careful consideration of the report of the plaintiff's expert Pio Lombardo of Lombardo Associates, Inc. Mr. Lombardo, a professional engineer, is a well recognized authority in the field of septic systems. He stated that "the effluent from this facility as planned, will adversely impact receiving fresh and saline waters," obviously referring to the Saugatuck River and Long Island Sound. Thus, he recommended that certain design modifications be made to avoid this result. He further recommended effective steps to prevent the introduction of harmful contaminants into the system. Finally, he urged that an emergency repair account be created to provide a fund to cover the cost of repair or replacement of the entire system in the event of consistent malfunction. The commission dutifully addressed each and every one of these recommendations.
In addition, the commission considered other written submissions by those with some familiarity with FAST systems. These submissions expressed concerns that this particular type of sewage disposal system would malfunction or would not meet permit requirements, thereby discharging harmful effluent into the adjacent wetlands and watercourses. Each of these received thorough review by the commission's staff and expert consultants. In addition, the applicant's experts reviewed and responded to these claims. After giving their stated positions appropriate consideration the commission then proceeded to reflect these criticisms and concerns in their resolution of approval.
Testimony of non experts may justify a wetlands commission's denial of an application. Milardo v. Inland Wetlands Commission, 27 Conn.App. 214 (1992). As stated above, the court is also mindful that evidence of general impacts, mere speculation or general concerns do not qualify as substantial evidence. Connecticut Fund For The Environment, Inc. v. Stamford, 192 Conn. at 247. As for expert testimony, the commission was free to accept or reject that testimony when it was conflicting or contradictory. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 547 (1987). It is not the function of the reviewing court to weigh the evidence or determine who is credible; that function is exclusively the commission's. Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn.App. 204, 211-12 (1994).
The commission relied on the expert advice and testimony of two engineers, Gary A. Dufel of the firm of Stearns and Wheeler and also from the firm of Leggette Brashears Graham, Inc. Mr. Dufel submitted six separately dated reports and attended the numerous hearings held by the commission. The plaintiff Cohen has seized upon a note of caution expressed by Mr. Dufel in commenting on the decision made by the DEP in approving the FAST system. He said: "on the first page of [DEP's] summary, they state `if constructed and operated as proposed, this wastewater treatment system would protect the waters of the state from pollution.' I take issue with the wording of that statement. If they stated that if the plants [sic] meets its permit, it would protect the waters of the state, I would more readily agree but just constructing and building the system may not suffice to meet the permit or protect the waters of the state . . . the treatment plant will adequately protect the nearby water bodies but only if the plant consistently meets the permit. It is also our opinion that a failure to consistently meet the permit will cause harm to these same bodies of water by accelerating eutrophication of Lees Pond (Saugatuck River) and the nitrogen-induced problems of Long Island Sound."
At the commission's request, Mr. Dufel investigated historical failures of other FAST systems which had received DEP approval. In his research Mr. Dufel identified several reasons for these failures, to wit: poor sizing or design, poor operation, inconsistent flows and loadings; discharges containing harmful products and lack of enforcement by DEP. These failures are precisely what Mr. Dufel meant in the above statement that in order to prevent harm to the wetlands/watercourses in question there must be consistent compliance with all permit requirements. As will be seen infra, this alarming warning influenced the commission to fashion the numerous conditions which accompany its grant of approval. Additionally, Mr. Dufel advised that the FAST system as designed will discharge three pounds of nitrogen per day into the watercourse which the commission explicitly found would not cause significant adverse impact on the receiving wetlands and watercourses. There is no record evidence to the contrary. Russell Slayback of Leggette Brashears Graham advised the commission that the travel time for bacteria laden effluent to reach the watercourses meets or exceeds DEP standards as the system is designed.
Probably the single most persuasive piece of evidence considered by the commission was the written decision of the DEP in approving the FAST system as designed. Pursuant to DEP regulation, any onsite septic system which will discharge in excess of 5,000 gallons of waste per day is required to obtain approval from the DEP. The DEP held a public hearing on the application at which it heard from numerous witnesses for the applicant, including experts, and heard further from representatives of one of the intervenors, resulting in a 34-page decision subsequently upheld on appeal to the Commissioner. The decision reached the following conclusion, in relevant part. "The application complies with applicable statutory and regulatory standards. Statutes § 22a-430; Regs. Conn. State Agencies § 22a-430-1 through 22a-430-8. The terms and conditions of the draft permit with which the applicant has demonstrated it would comply are consistent with the provision of § 22a-430 and its implementing regulations. The proposed wastewater treatment system would treat the waste water to a level to prevent pollution of groundwater and maintain a high water quality, as required by DEP Water Quality Standards. The requested permit for discharge of wastewater from the applicant's facility would not cause pollution to the waters of the state. Section 22a-430.
The discharge that would result from the issuance of the permit would not be reasonably likely to cause unreasonable pollution. In addition, although an alternative analysis is not necessary, the applicant has demonstrated that it did consider options to the proposed system and no feasible or prudent alternatives exist."
Specifically addressing the claim of unreliability of the system the DEP stated:
1. The majority of problems with this system would be minor, routine, and predictable.
2. If a temporary shutdown occurs, the FAST system can be restored faster than some other systems because the microbes remain alive.
3. Even if the system closed for a while . . . the FAST tanks would stay full, providing long term storage capacity in the event of a shutdown.
4. The FAST system has a record of success in similar situations. The system offers the fewest risks, has few moving parts, would be easy and reliable to operate.
5. The operation of the FAST system is minimal and requires only occasional maintenance.
6. None of the exhibits or non expert testimony offered by the intervenor, Y Downtown, Inc. established sufficient proof that the proposed project would cause unreasonable pollution.
Pertinent to this issue, on the basis of all the evidence the commission found:
1. Water pollution which will unduly affect the fauna, flora, physical or chemical nature of a regulated area, or the propagation of fish and wildlife will not result.
2. Pollution of ground water or a significant aquifer will not result (ground water recharge area or Aquifer Protection Overlay Zone).
3. The immediate goal is to restore the river (Saugatuck) to class A condition.
4. Poplar Plains Brook has elevated levels of nitrogen and phosphorous. The concentrations . . . indicate that Lees Pond is in a highly eutrophic state.
5. The FAST system will reduce nitrogen levels in a typical septic tank from 40 mg/l to 10 mg/l and is capable of doing better. The nitrogen dilution in the ground will result in 5 mg/l at the property line. The system will not cause a significant adverse impact to the receiving wetlands and watercourses.
6. Mr. Dufel, P.E., a principal at Stearns Wheeler, consultant to the commission stated that FAST when properly designed and operating under DEP conditions will not cause adverse impact. It must be properly sized, designed, operated and maintained and with exclusion of inhibitory pollutants should be capable of making its permit.
7. A protocol authorized by the applicant and approved by the conservation department, the public works director and the health department which outlines steps to accelerate effectiveness during these periods (when discharge may exceed limits) would protect the receiving wetlands watercourses.
It is easily inferred from these findings that the sole source of possible degradation to the wetlands watercourses is derived from the nitrogen content of the sewage effluent. The commission's conclusion that there would be no adverse significant impact is amply supported by the record. While one can never expect an iron clad guarantee of perfect performance of any mechanical device, the evidence abundantly demonstrated that if all permit requirements are met, the FAST system will work properly. The commission's consideration of its reliability was more than adequate. "It would be inconsistent with [the principles of statutory construction] to conclude, absent some clear indications to the contrary, that the legislature intended that the same conduct that complies with an environmental legislative and regulatory scheme specifically designed to govern it, nonetheless could be deemed by a court to be an unreasonable impairment of the environment." Waterbury v. Washington, 260 Conn. 506, 557-58 (2002).
What this means is that the law does not require that there be no pollution or impairment whatsoever. Only that the pollution be unreasonable, § 22a-19. This is consistent with the DEP statement that "no system is 100% fail safe" and that corrective action can be taken if needed pursuant to § 22a-44. Miklos v. Zoning Board of Appeals, 154 Conn. 399, 402 (1967) (should violation occur remedy is proper enforcement at that time) by the Westport authorities and the Connecticut DEP pursuant to the conditions of the permit.
II. The Protocol
Among the numerous conditions which the commission attached to the permit approval was a protocol or "action plan" to be activated in the event that the FAST system became out of compliance with the DEP permit. The plaintiffs attack the protocol, claiming that it violates the principles enunciated by our Supreme Court in Finley v. Orange, supra.
Our courts have affirmed the statutory right of a wetlands agency to place conditions on a permit application pursuant to § 22a-42a(d)(1) of the General Statutes. In Town of Canterbury v. Deojay, 114 Conn.App. 695, 713 (2009) our Appellate Court commented that § 22a-42a gives a wetlands commission "wide latitude to condition a permit approval on certain action by the permittee to mitigate the impacts of the regulated activity." Such statutory authority has been replicated in § 11.0 of the Westport Wetlands Regulations.
The plaintiffs have focused their opposition on conditions 21 through 31, save 26 which cumulatively constitute the "protocol." The commission expressly made each and every condition an integral part of its decision so that the decision would stand or fall on the validity of all conditions as a whole.
The conditions follow:
21. At least six monitoring wells shall be established with the concurrence of the Conservation Department as per condition 27. Samples from these wells shall be taken by the state licensed operator. Testing by the state licensed operator shall include nitrogen, phosphorous and fecal coliform. Samples from these wells shall be taken and submitted to the conservation Department on a monthly basis. If monthly sampling of the monitoring wells reveals an excess of 10 mg/l of nitrogen or any phosphorous or the presence of fecal coliform, Action as defined in condition 24 shall be initiated.
22. The Chief Executive Officer (CEO) of the WWFY [Westport/Weston Family Y] shall be responsible for ensuring that all operations and reporting as required by this permit are followed.
23. A monthly report certified by the licensed operator shall be submitted by the 15th day of the month following the monthly sampling. Said report shall be submitted to the CEO of the WWFY. The WWFY shall thereupon submit the sampling reports to the Conservation Department Director, DPW [Dept. Of Public Works] Director and WWHD [Westport/Weston Health Dept.] Director indicating a summary of equipment maintenance and replacements; amount of chemical use; safety reports; statement of permit compliance; summary of flows and loading received and treated by the plant. The Conservation Department shall be notified of any future plans that would alter the discharge quantity or quality of the treatment components.
24. In an effort to determine permit non-compliance and/or the need to implement immediate action, the following protocol for Action shall be established.
"Action" is defined as a meeting called by the WWFY and attended by the operator, a consultant hired by the Conservation Department (which consultant shall be paid for by the WWFY), the Conservation Department, the WWHD, and a representative of the Water Pollution Control Authority (WPCA). At such meeting the participants shall identify what remedy shall be intitiated.
I. Start-up
A. Start up of the system as defined herein shall begin on the date of issuance of a Certificate of Occupancy (CO) or Temporary Certificate of Occupancy (TCO) and shall last for a period not to exceed 12 weeks.
B. During this time samples are taken twice a week but are not counted in determining permit compliance. Samples taken during this time must still be submitted to the Conservation Department, WWHD and DPW.
II. First year of On-going Operations
A. On-going Operations shall commence immediately upon the expiration of the start up of the system as defined in Paragraph IA of this Condition 24. After start-up is completed, samples shall be taken twice/week for 12 weeks with results submitted to the Conservation Department, WWHD and DPW.
B. At the end of the third (3rd) month from the beginning of On-going Operations, if the system is producing an average that exceeds 10 mg/l of nitrogen, then Action as defined above shall be taken.
C. Beginning with the fourth (4th) month from the start of On-going Operations through the sixth (6th) month after startup, if the twice weekly samples result in the previous five (5) month running average that exceeds 10 mg/l of nitrogen, then Action as defined above shall be taken.
D. Beginning with the fourth (4th) month from the start of On-going Operations through the ninth (9th) month after start up, if the twice weekly samples result in the previous 5 month running average that exceed 10 mg/l of nitrogen, then Action as defined above shall be taken.
E. Beginning with the fourth (4th) month from the start of On-going Operations through the twelfth (12th) month after startup, if the twice weekly samples result in a previous 5 month running average that exceeds 10 mg/l of nitrogen, then Action as defined above shall be taken.
F. Beginning with the fourth (4th) month from the start up through the fifteenth (15th) month after startup, if the twice weekly samples result in a running average for the previous 5 months that exceeds 10 mg/l of nitrogen, then Action as defined above shall be taken.
G. If the samples reveal a running average greater than 10 mg/l of nitrogen and Action is taken, a new rolling average similar to those described above would be calculated from the restart of On-going Operations. Each such restart shall constitute the start of a new first year of operation and the provisions of Part 1 and Part II of this Condition 24 shall thereupon begin anew.
III. Subsequent years of Operations
A. If DEP has issued a Permit to Discharge and after the first 15 months from the issuance of the CC or TCC, Action as defined above will be initiated if the WWTS exceeds the DEP's permit conditions of 10 mg/l/day of nitrogen.
B. Quarterly monitoring reports documenting the twice/week sampling for the WWTS shall continue to be submitted in perpetuity to the Conservation Department, WWHD and DPW after the Permit to Discharge is issued by the DEP.
C. If DEP has not issued a Permit to Discharge after 12 months past start up then the Conservation Commission will recommend to the WPCA that the powers invested in them by Section 118-17(b) or (c) of the Code of the Town of Westport (the "Code") be invoked.
D. The testing requirements as described in the first year shall continue and repeat with reports evaluated in the same intervals until 24 months of valid sampling is completed.
E. If after 24 months past start up DEP permit compliance is not achieved and the DEP fails to take action then the Conservation Commission hereby recommends to the WPCA that the terms of Section 118-17(b) or (c) of the Code be invoked.
F. If remediation does not correct the problem within 3 months of the restart of the WWTS, the Conservation Commission hereby recommends that the WPCA invoke the terms of Section 118-17(b), or (c) of the Code.
25. An Operations and Maintenance (OM) manual and a Standard Operations procedures (SOP) manual shall be submitted to the Conservation Department, Director of DPW and WWHD for review and comment prior to issuance of a Certificate of Occupancy (CO) or a Temporary Certificate of Occupancy (TCO). The OM manual and SOP manual shall identify what components shall be alarmed. The OM manual and the SOP manual shall be certified by the state licensed operator. Modifications to these manuals shall go through the same reviewing procedures as listed above.
26. Daily water usage readings shall be submitted to the DPW and the Conservation Department by the 15th day of the following month. Should the WWFY exceed the DEP permit limit of 34,000 gpd of discharge, the Conservation Commission will recommend that the WPCA take immediate action.
27. A consultant shall be hired by the Conservation Department and shall be paid for by the WWFY and shall be retained for not less than two (2) years from the time of beginning of On-going Operations of the WWTS. Following that period should Action be needed the Conservation Department shall hire a consultant on an as-needed basis to help remediate the problem which consultant shall be paid for by the WWFY. Said consultant shall:
a. participate in a peer review of the final septic system design plans;
b. participate with the design engineer in identifying the six monitoring well locations;
c. review the Operations Manual and Standard Operating Procedures;
d. participate in meetings should problems arise;
e. review twice weekly and monthly test results, including from the monitoring wells;
f. review proposed Action Plan and Defined Protocol
28. During final design, the design engineer shall consider putting the WWTS in series rather than in parallel with pros and cons discussed during peer review with consultant retained by the Town.
29. Should the final septic design include a methanol system it shall be reviewed by the Fire Marshal.
30. The WWFY shall submit an Action Plan or defined protocol to be followed by the operator during time of start up and if bio-mass is killed. Said plan shall identify what degree of non-compliance with DEP permit conditions would trigger a corrective measure and what measure(s) could be taken. Said plan should also include the possibility of seeding the system and any other methods that can be employed both during time of start up and if a bio-mass die off occurs in order to expedite a return to permit compliance.
31. Working in conjunction with the manufacturer of the WWTS and the operator of the system, the WWFY shall provide a list of prohibited substances that cannot be flushed, poured or otherwise emptied into the WWTS. A list of said prohibited items shall be posted in all appropriate areas of the building. No Certificate of Compliance shall be issued until all signage is posted. The WWFY shall be held responsible for improper use of these substances within their facility.
The commission stated: "This is a conditional approval. Each and every condition is an integral part of the Commission decision. Should any of the conditions, on appeal from this decision, be found to be void or of no legal, then this conditional approval is likewise void. The applicant may refile another application for review.
This approval may be revoked or suspended if the applicant exceeds the conditions or limitations of this approval, or has secured this application through inaccurate information."
The court notes that the entire protocol is based on the possibility that at any time the FAST system may discharge into the wetlands/watercourses effluent which contains nitrogen in excess of 10 mg/l. If that occurs then an "action plan" providing a remedy is to be fashioned in accordance with condition no. 24. To summarize the protocol:
1. If after one year of operation the DEP has not issued a permit to discharge or if after 24 months of operation permit compliance is not achieved then the Westport Town Code § 118-17(b) or (c) is invoked.
2. Should "action" be needed a consultant must be hired to help remedy the problem.
3. The design engineer may consider putting the FAST system in series rather than in parallel.
4. An "Action plan" shall be developed to be followed by the FAST operator during start-up and if the biomass essential for the system's operation is killed, substitute must be found so that the system can be restored to compliance expeditiously.
5. Develop a list of prohibited substances that cannot be put into the system. The list shall be published in appropriate areas of the building and the Family Y shall be responsible for enforcement of this prohibition.
The plaintiffs condemn the protocol as unwritten, theoretical, phantom and an impermissible condition under Finley. In Finley, supra at 40, our Supreme Court held that pursuant to § 22a-19 "an intervenor can prevail on appeal not only by proving that the proposed development likely would cause harm to the wetlands, but also by proving that the commission's decision is not based on a determination, supported by substantial evidence, that the development complied with governmental statutes and regulations and would not cause such harm."
In accordance with this rule the court found that the inland/wetlands commission acted improperly when it imposed a condition on permit approval requiring the applicant to submit a revised and updated erosion control plan that implements all state regulations. The court further indicated that "the soil erosion and sedimentation control plan that had been submitted at the time of the decision did not implement all state regulations and was insufficient as to detail" (emphasis added). The court further found that it is implicit in the condition of approval . . ." that the commission had not determined that the existing erosion control plan met state regulations when it rendered its decision." (Emphasis added.) Id. at 41. Finally, in concluding the opinion the court made reference to a line of cases in which both the Appellate and Supreme Courts have approved conditions which "required the applicant to take specific action that would bring the proposed conduct into compliance with applicable law."
The principal but critical difference between the present case and Finley is that the Westport Conservation Commission had already determined at the time of its decision that the FAST system was fully in compliance with state and local governing statutes and regulations, whereas, in Finley, that determination was left to post-approval consideration of design engineers and commission staff, and the wetlands commission did not determine that the existing erosion control plan met state regulations when it rendered its decision. In the present case this determination was made not only by the commission but also by the highest administrative authority having jurisdiction, the Commissioner of DEP.
The particular requirement in Finley that the condition imposed by a wetlands agency require "specific action that would bring the proposed conduct within the applicable law" is abundantly satisfied by the protocol. The very nature and purpose of the protocol is to accomplish the salutary goal of bringing the FAST system into compliance should it deviate therefrom. The fact that the commission was unable to predict with absolute certainty precisely what specific action would be needed in the event of malfunction does not render the protocol or the plan so uncertain as to render it illusory. The other differences in the two cases are also significant. In Finley the commission did not state on the record the reasons for its decision and did not make a finding, explicit or implicit, that the proposed development would not cause environmental harm. Accordingly, the trial court was required to search the record to discover these reasons but if not present, the court was powerless to determine them in the first instance. Id. at 41.
The present case is more like Gardiner v. Conservation Commission, 222 Conn. 98 (1992) in that both commissions made determinations (implicitly or explicitly) that there was regulatory compliance and that the activity would not harm the wetlands but the Gardiner Commission went on to impose four conditions which could not be satisfied until after the wetlands permit was conditionally issued. These conditions were far more open ended than the protocol in the present case. For example, condition #1 left open the issue of whether a pollution hazard would be created by the proposed location of a detention basin and condition #4 required submission of engineering calculations to enable the town engineer to review the structural integrity of detention basins. Notwithstanding these unresolved issues the Supreme Court held that such action was not a denial of a due process right to a fair hearing because the post decision information "cannot have had any effect on the decision of the commission." So it is in the present case, the possibility or even probability of some malfunction of the FAST system especially in its early stages of operation was well known to the commission and could not, indeed did not, have any effect on the commission's decision.
Y Downtown further argues that approval of a permit conditioned upon unknown conditions renders unknown the degree of the applicant's regulatory compliance. On the contrary, the record shows that the conditions which the protocol was intended to address are definite and quantifiable. They are:
1. Effluent laden with nitrogen in excess of 10 mg/l.
2. Permit noncompliance in excess of 12 and 24 months.
3. Final engineering decision to be made as to whether the FAST system should run in series rather than in parallel.
4. Loss of biomass during start up.
5. Exclusion of harmful substances wrongfully introduced into system.
The protocol is clearly designed to prevent consistent noncompliance by creating a mechanism for the expeditious application of remedial measures. While each of the above by itself constitutes a measure of system failure they do not rise to a level sufficient to cause the commission to conclude that they would have an adverse effect on the wetlands/watercourses. Plaintiff's attack on conditions 25, 27, 28, and 29 because they reflect the need for further design work is disingenuous. No. 25 merely mandates that operations and maintenance manuals be prepared and in place before the facility is allowed to open. Common sense suggests that these types of manuals are customary requirements for the successful performance of any mechanical device, even a household appliance.
No. 27 mandates the retention of a consultant for the first two years of the system's operation and thereafter on an as needed basis to provide expert advice. The fact that the consultant will participate in locating monitoring wells and approving the design of the system is no less a specification sanctioned by Finley because it requires the exercise of some judgment and discretion. Indeed, it would be impossible for the commission to have tailored a remedy for a malfunction in advance without knowing the nature, extent and frequency of the event.
No. 30 applies only to the startup period of three to six months and is calculated to insure that during this critical period if the biomass is killed, immediate corrective action is taken by replenishing the supply or substituting other appropriate material. Loss of the biomass and other compliance shortcomings were well known possibilities to the hearing participants. Development of an action plan to deal with that contingency represents a specifically identified action for the commission to take in the event of malfunction even though the particular details of the action await a later determination by several responsible parties and may consist of more than one alternative remedy, including the installation of a parallel system.
It is within the realm of possibility that successive attempts at remediation may fail resulting in the invocation of the ultimate remedy of closure of the facility. This is precisely what the commission meant when at various places in the protocol it provided for resort to § 118-17(b) or (c) [now sec. 30-235(a)(1) and (2) of the Westport Town Code.] This ordinance provides as follows:
See conditions 19, 24, Start-up II, III.
Sec. 30-235 — Default; remedies; ongoing liability of owner.
(a) In the event that the owner becomes insolvent, goes into bankruptcy or receivership, dies, voluntarily dissolves or ceases to exist; fails to maintain or fund the reserves as provided in Section 30-233; fails to make repairs or modifications required by the operator, the WPCA or any other regulatory agency; or otherwise is unable, unwilling or fails to operate the POWDS in full compliance with applicable laws, regulations and permits, including any provision of the operating agreement or this division, the Town has the right, but not the obligation, to take the following actions, in addition to all other remedies available at law or in equity:
(1) Repairs. The Town or its designees may enter the property and perform any necessary inspection, testing, maintenance, repairs, replacements or remediation, at the Town's expense, which costs shall be reimbursed to the Town either directly by the owner or from the operation, maintenance and replacement reserve or the emergency reserve. To the extent there remains any deficiency in the amount to be reimbursed to the Town by the owner, a lien in the amount of such deficiency shall be placed on the premises upon which the POWDS is located.
(2) Cease operation. Subject to the approval of the Director or his or her designee of the Health District, the Town may, or may cause the owner, to cease operation of the POWDS.
POWDS is defined in Sec. 30-227 as follows:
Private on-site wastewater disposal system or POWDS means any on-site wastewater disposal system serving one or more structures that has a design flow capacity in excess of 5,000 gallons of effluent per day and that is owned, operated or maintained by a nongovernmental entity, including any individual septic tanks, pumps, lines, treatment facilities, drain fields, reserve fields, lift stations and appurtenances thereto that are part of such system.
Additionally, on December 5, 2006 the Westport RTM amended Chapter 30 of the Westport Code to add an ordinance to regulate private on-site wastewater disposal systems. This ordinance provides as follows, in relevant part:
Section 30-228. Purpose . . . This division applies to all on-site wastewater disposal systems serving one or more structures that have a design flow in excess of 5000 gallons of effluent per day and that are owned, operated or maintained by a non-governmental entity.
Section 30-233. Operation, Maintenance and Replacement Reserve; Emergency Reserve. (a) Prior to the construction, expansion or operation of any POWDS, the owner shall establish, maintain and fund, on a yearly basis: (1) An operation, maintenance and replacement reserve in the amount sufficient to fund the cost of at least five years (or more, as may be determined by the WPCA) of monitoring, inspection, operation, maintenance, repair and replacement of the POWDS and all components thereof; and (2) An emergency reserve in the amount of one hundred percent (100%) of the anticipated replacement costs of all equipment and materials of the POWDS, including the installation, design and supervision costs and the cost of replacement or reconstruction of the collection system(s) and drainfield(s).
Although not included in the return of record the court is permitted to take judicial notice of the ordinances of any town and regulations of any board or agency of any town, including of course, the water pollution control authority (WPCA). Gen. Stat. § 52-163(3). Significantly, the plaintiffs were likewise on notice before development of the protocol that the WPCA was endowed with independent authority under the law to take effective corrective action with respect to larger privately owned septic systems as needed. The protocol's express reliance on this ordinance is merely declaratory of existing law.
The ultimate responsibility for the proper performance of the system is described by the town Conservation Director in exhibit 47 as follows:
Once the system has been installed, as per the requirements of the state statutes and the DEP regulations the Water Pollution Control Authority of the municipality becomes the responsible party to ensure the effective operations and maintenance of the septic system. In terms of obligation, if the system experiences a problem and the owner cannot respond, the Town is liable for it. In the case of a failure or a problem, the DEP would go to the owner first, but the Town is ultimately responsible and could be held liable for a pollution problem. This has happened to other municipalities.
The court notes further that among the numerous conditions recited in the DEP permit issued for the project (UIC draft permit), § 4(B) states:
Underground Injection Control.
Oils, greases, industrial or commercial wastes, toxic chemicals, wastes from water treatment systems, or other substances, that will adversely affect the operation of the subsurface sewage treatment and disposal system, or, which may pollute ground water, shall not be discharged to the subsurface sewage treatment and disposal system.
Similarly, the DEP has promulgated regulations which govern the introduction of harmful substances into sewage systems. The court takes judicial notice of the fact that section 22a-462-a1 to 3 bans the use of any detergent or sewage system additive which results in pollution of the waters of the state or accelerates eutrophication of a lake or pond or other body of water in the state. General Statutes § 52-163(2). As noted above Section 22a-430-3 of the DEP regulations creates an extensive and comprehensive system of regulation of many different types of objectionable, harmful substances that may find their way into the waters of the state. In connection with this regulation the DEP publishes a wide ranging list of substances (including toxic substances) which are either prohibited or limited in the quantity that may be discharged. This list is, of course, available to the public. The plaintiffs overreach when they charge that the commission introduced the protocol without warning. The record shows that at the March 28, 2007 hearing the applicant's attorney proposed the basic component of the protocol, namely a so called "summit meeting" in the event of permit noncompliance. That meeting would be attended by representatives of the town Department of Public Works (DPW), the DEP, the FAST operator, a representative of the WPCA and the town conservation department to determine "what action should be taken." Additionally, the protocol was discussed at three work sessions held post-hearing which were open to the public and which presumably the plaintiffs attended in their capacity as environmental intervenors. Having been alerted to the proposal the plaintiffs/intervenors could have formally petitioned the commission to hold further hearings concerning the matter pursuant to §§ 22a-42a and 22a-19 of the General Statutes at which their concerns could have been expressed. The court notes that intervention under Sec. 22a-19 gives intervenors a formal status not then enjoyed by any other would be opponent.
Having had an opportunity to review the protocol, albeit post-approval, the intervenors did not see fit to petition the commission for further hearing pursuant to § 9.7 of the Westport Wetlands Regulations. This remedy would be in addition to the remedy provided under § 22a-16 of the General Statutes which gives the plaintiffs/intervenors standing to sue for declaratory and equitable relief. Finley v. Inland Wetlands Commission, supra at 25, note 11. Nor have the plaintiffs seen fit to inform the commission in writing or otherwise of any deficiencies that they see in the protocol. Finally, the court finds it significant that when the action plan called for and the protocol is activated, the participants would be dominated by public officials and employees. Although the action plan will be initiated by the owner of the facility (Family Y) the meeting called to devise the action plan will be attended by (1) the operator of the FAST, (2) a consultant hired by the Westport Conservation Department, (3) a representative of the Westport-Weston health district, (4) a representative of the Westport Water Pollution Control Authority, (5) a representative of the department of Public Works, (6) a representative of the Westport Conservation Department. Thus, the action plan committee created under the protocol would be controlled by neutral parties. Finley v. Inland Wetlands Commission, supra at 25 note 11. Any advice which this committee receives from any of the attendees may be deemed technical assistance received from non-party participants, thus not implicating the fundamental fairness doctrine which the court stressed in Megin v. Zoning Board of Appeals of New Milford, 106 Conn.App. 602, 609-10 (2008).
In conclusion, contrary to the position of the plaintiffs, the commission gave thorough and meticulous consideration to the effectiveness and reliability of the FAST sewage disposable system. Furthermore, the protocol which the commission created after the hearings were closed does not violate the Finley requirement that the record reflect by substantial evidence that the applicant's proposal complied with applicable statutes and regulations and will not cause harm to the wetlands and watercourses. For these reasons these appeals are dismissed.