Hearing for EV Showroom, fueling station continued to March 17

By John Fitts

Staff Writer

CANTON – The public hearing for a controversial project on the Simsbury/Canton town line has been continued to March 17.

The owners of 9-15 Albany Turnpike have proposed a 23,500-square-foot EV showroom, a 20-pump fueling station and a convenience store and eateries with a drive-thru and seating areas. The proposal seeks a number of special permits under Canton’s business zone regulations and the next meeting will mark the sixth installment of the hearing.

Developers have touted the proposal as the future of transportation with a showroom, service center, charging stations, gas pumps designed to convert to EV chargers and several eateries in the convenience store that are a “higher level” than the typical gas station.

Opponents have raised several concerns with the project, particularly with the proposal to blast a portion of the traprock ridge on the property. The project, according to one report, included with the application, would involve blasting to remove approximately 118,450 cubic yards of “bedrock” – or trap rock ridge – from roughly 3.4 acres on the site.

While the commission does not regulate blasting, special permits are subject, in part, to several standards that speak to the environment, health and quality of life factors. The duality of economic development and the environment and community character in the town’s Plan of Conservation and Development is also a consideration and developers and opponents have already referenced several parts of that document.

Many have spoken to the aesthetic value and environmental importance and whether blasting will affect wells, community wellbeing or pose a risk of disturbing the plume from the state superfund site at 51 Albany Turnpike. J. Swift Chemical operated at the 51 Albany property, primary in the 1950s and 1960s, and buried waste solvents on the site, according the state Department of Energy and Environmental Protection. A plume from the contamination has caused numerous issues.

Connecticut Water and the Metropolitan District Commission have also raised blasting concerns, the latter for its infrastructure under Route 44.

Opposition has intensified since the beginning of the year and the latest meeting on Feb. 17 featured testimony from experts speaking on behalf of Canton Advocates for Responsible Expansion, which has filed a petition for intervention.

State law allows intervener, i.e. party status, for a person or entity if there is a “verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

The state law facilitates commissions or other administrative bodies prohibiting conduct that meets the criteria, provided there is also a “feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

After a lengthy discussion among attorneys on the intervener process, including some disagreement over the burden of proof and how much verbal testimony the commission should hear about the subject, C.A.R.E. presented its case for intervention, offering experts, playing a video of a blasting incident purportedly at an operation run by Blastech – one of the developer’s consultants – that sent debris and large boulders onto a public road, and raising a few other issues along the way.

Attorney Michael Pendell of Motley Rice, LLC, on behalf of C.A.R.E., suggested that two commissioners should not be seated for the application.

One is David Evens because of alleged past or present employment for Michael Frisbie, who is designated as the owner/operator for the proposed development. The other commissioner is Lans Perry, who C.A.R.E. alleges has made comments demonstrating an “inability to be objective” about the application and for appearing to sleep during at least some of the proceedings.

“We don’t raise these issues to questions anybody’s integrity; we just want a fair process,” Pendell said. “I raise these issues to preserve these issues for appeal. I do think this is an appellate issue and, again, nobody wants to come back here later because there was a process issue.”

Attorney Kenneth R. Slater, Jr., a partner at Halloran Sage, who represents the commission, was also present at the virtual meeting and suggested that, since the commissioners had heard the testimony so far, they remained seated for now and the issue be further addressed before the commission votes.

Evens and Perry did not comment at the meeting and did not return messages from The Valley Press. However, at least one commissioner forwarded the message to Neil Pade, the town’s Director of Planning and Development, and he reiterated that Slater was looking into the issue.

After those discussions, several professionals spoke on behalf of C.A.R.E.

One was Evan Glass, hydrogeologist and environmental professional at ALTA Environmental Corp. As he did at a previous meeting, Glass contended a hydrogeology report on the site would not be complete until the firm hired by developer, WSP, can access full records about the state superfund site, which due to COVID, would not take place until April 7.

But Glass presented what he said was new information, stating that a partial early 1990s report he has and had a chance to read since the last meeting indicates that a well at the La Trattoria parcel, which abuts the development proposal parcels, had been contaminated with tetrachloroethylene (PCE).

“There’s a bedrock drinking water supply well La Trattoria restaurant property and that well appears to be located either on or immediately adjacent to the planned development site and is reported to have been contaminated by tetrachloroethylene from the Swift site or another release, but probably from the Swift site based on circa 1990 data,” Glass said.

“Previously there’s been a lot of comfort gained on the applicant’s side by the long distance between the blasting site – 1,500 feet approximately to the Swift site – saying that this stuff can’t get to here but it apparently already did and it probably did because when this well was pumping it drew water from up this fracture to the well,” said Glass, pointing to a graphic in the report.

Glass also said other information he and others reviewed also suggests there may be pollution at another nearby site and repeated several suggestions he made at previous meetings, such as including wells within 2,500 feet in the pre- and post-blasting surveys.

Commission Chairman Jonathan Thiesse asked if Glass now felt it more likely that blasting could lead to a mobilization of the pollution from the superfund site than he had expressed previously.

“Very much,” Glass said. “It brings the plume so much closer than thought prior.”

While the commission will hear a detailed response from the developer’s consultants at a future meeting, Kevin Solli, principal of Solli engineering, who has played a prominent role in the development plan, asked a few questions and indicated that the team had seen the circa 1993 Metcalf & Eddy report Glass referenced. He continued a theme he has noted in previous meeting that the proposed blasting site is separated both horizontally and vertically from the Swift site.

“I can tell you the water bearing fractures for that [La Trattoria] well were found 466 feet below grade,” Solli said.

He also said the report, like other information, established groundwater flow from the Swift site was not in the direction of the proposed development.

“I’ll say that report did have maps and flow maps which did show the groundwater flowed west to southwest, so away from our site,” Solli said.

Glass, who contends that a mapped bedrock fault “crosses the two areas and connects to a larger fault,” asserted that bedrock flow is much more unpredictable than groundwater flow and remains a concern.

“The site plan view that I [displayed] – showed the plume on the Swift site [got] to this well,” Glass said. “That indicates that groundwater got from the Swift site to this well. Even though under non-pumping conditions the groundwater might flow generally westerly, if you pump a well you can induce water to flow into the pumping well from distant areas.”

Bill Warzecha, a retired DEEP geologist/hydrogeologist who spent 22 years as the supervising environmental analyst for the Remediation Division, also contended that blasting could result in problems due to constituents used in the processor by mobilizing area sources of pollution.

Like Glass, he questioned the developer’s recently submitted blasting plan and its proposal to use an insurance company to handle potential claims.

He said in his experience, such companies routinely denied claims.

“I don’t think there was one time when a blasting contractor or insurance company accepted responsibility for a problem at a particular property that made a complaint. It was always I had to go to the point of threatening enforcement to actually get them to step up to the plate and do something. ... I don’t think you want the fox watching the henhouse in this case.”

Warzecha also said a geologist should monitor the site in case the work area exposes any rock known to contain pyrite, which can cause acid rock drainage.

He also spoke drainage changes that will result from the work and said a gas station use was certain to cause some issues.

“I don’t know any gas station site that hasn’t contaminated soil and ground water. ... They all have releases,” he said.

“This development is very significant and the work being done to prepare the site for the development pad has the potential to cause damage both physical – like we saw in the video earlier – physical damage to people’s properties, but also to their drinking water supplies,” said Warzecha, adding the developer should post a bond so there is funding for any issues that could come up.

Commissioners also heard from Michael S. Jastremski, watershed conservation director for the Housatonic Valley Association and a resident of the Secret Lake neighborhood in Canton.

While the area was outside of mapped Natural Diversity Data Base area Jastremski requested a review of the area and discussed a response from the state Department of Energy and Environmental Protection that there are “critical habitats” and state listed species that occur on the traprock ridge system, including dry acidic forest, sub acidic rocky outcrops, a couple of endangered plants, one state listed threatened plants, six plants of special conservation concern, one state listed threatened reptile and one state listed reptile of special conservation concern.

“It’s really important to note that these preliminary determinations don’t say, you know, this particular species is right in this particular area, more to suggest that it warrants more investigation,” Jastremski said.

Referencing a letter from a DEEP official, Jastremski requested the commission condition any special permit to include working with the DEEP natural resource diversity database team to conduct botanical and herpetological field surveys and then develop any necessary protection plan before construction begins.

“If there’s any resource in town that’s regarded as important it should absolutely include species of concern at risk for extinction,” he said.

During the meeting, Pade noted that the town does screen applications with the NBBD map and asked for clarification of the comments provided to the commission by Bill Moorhead, a botanist/plant community ecologist who works in the Wildlife Division, Bureau of Natural Resources for DEEP.

“The project area does not have a mapped NBBD area on it or near it. In fact, the closest mapped NDDB area that is part of the traprock ridge system is about three quarters of a mile away,” said Pade, who said it should be clear if the comments were about the particular site.

“Oftentimes there’s a project where there’s impacts beyond the site – like blasting . ... they sort of slip through the cracks. I think that’s part of the reason they expanded the area they’re looking at,” Jastremski said.

“In this particular case, the lengthy species list was the result of this project’s proximity to Critical Habitat type Traprock Ridge, which provides habitat for a large suite of species, many of which are listed as endangered, threatened, or special concern, and have potential to be in the vicinity of the project area,” Moorhead added in a letter to Pade, but he also acknowledged that the town had discretion and was not obligated to require the surveys.

“While we strongly encourage conducting surveys and implementing protection measures, there is no obligation on the part of the town or the project proponent to follow through with these recommendations,” the letter states.

Jastremski also spoke to the town’s Plan of Conservation and Development, a document that has been referred to often during the proceedings.

“This balance between development and natural resource protection – I think it’s articulated really well here. We agree the applicant has the right to develop this property absolutely but we read the spirit and intent of that fundamental value to mean any development should be built in a way to minimize harm to important natural resources.”

Jastremski also alleged some shortcuts and deficiencies in the stormwater management plan and the lack of what he called a threat to Nod Brook

“It seems like as far as the stormwater plan that’s proposed … this application seems to be incomplete,” he said.

Zbigniew Grabowski, Ph.D., Collinsville resident and postdoctoral research associate at Cary Institute of Ecosystem Studies, of Millbrook, N.Y., spoke to the concept of public trust, which he said Connecticut offers as a rare example to correct the common bifurcation of environment and social impacts, which he said is all too common in the western legal framework.

“In this case, a germane fact that has been mentioned in public comment but needs to be highlighted here is there is a downstream recreational water body, namely Secret Lake, that [would be] potentially impacted by the proposed activities and poses an imminent hazard to the public health and welfare should it be impacted or exacerbated by the proposed development,” he said.

He also said there are also considerations on how the development would be perceived that speak to the public trust for residents.

“If this negatively affects resources that constitute part of their psychological and cultural and social identity, they’re also long-term and permanent and irreversible impacts on the public welfare from the destruction of cultural landscapes and landscapes that have been inhabited by people for single generations or multiple generations that the commission also needs to consider.”

Dr. Sarah Faulkner, Canton resident and science teacher who has long been involved with the Canton Land Trust, Hartford Audubon and numerous other organizations, summarized the C.A.R.E testimony and also contended the $103,000 estimated by the developers was an insignificant portion of the tax base and alleged that the development could even hurt other businesses.

She also said the Inland Wetlands and Watercourses Agency and Aquifer Protection (same membership as Planning and Zoning) should meet, the latter due to what she said were incorrect boundaries in the mapped aquifer.

“C.A.R.E.’s expert testimony has demonstrated unreasonable and damaging pollution, impairment and destruction of natural resources by this proposed development, would very likely result in permanent damage to our environment, pose short and long-term health dangers to our residents. It will irreparably maul the signature entrance to our town, violates our Plan of Conservation and Development, will most likely cost money to our taxpayers and the application is incomplete,” Faulkner said.

She also contended the applicant could pursue alternatives including a smaller development with no blasting or any type of gas dispensing, storage or sale; resubmitted under the town’s new form-based code or finding a new site.

It was at that point of the meeting that David J. Markowitz, Canton resident and land use attorney representing the developer, said to the commission, “This has nothing to do with the intervener petition. She’s repeating what everybody testified to and I believe she is wasting the commission’s time and I find this objectionable.”

The commission did not ask her to stop and Faulkner noted she was nearly finished and did so with mention of a petition and asserting the development was not a “good fit for Canton.”

“We ask the commission to deny this application and encourage development at 9-15 Albany Turnpike that better fits this scenic and sensitive traprock ridge location,” she said.

The developer’s consultants did file some additional material for the latest hearing installment, but due to the length of the meeting, did not get a chance to speak at length or present their assertions on Feb. 17 and are expected to do so at the next meeting.

When Solli questioned Glass at some length, Thiesse told them it was not necessarily the time for a debate. While Thiesse later “apologized” for those comments, the development team had few questions after that, stating it would, in fact, include its responses at a later time.

Information submitted by WSP on Feb. 5 continues to assert that impacts are unlikely and contends, “that there should be no adverse impact to neighboring water-supply wells resulting from the proposed blasting and rock removal.”

“As stated in WSP’s December 2020 report, controlled blasting, in accordance with current procedures and standards of care, is designed to limit/control the extent of rock fracturing and vibration by using multiple closely-spaced blast holes and time-delayed detonation. Blasted rock is removed from the bedrock surface by mechanical means to the maximum extent practical. As a result, the fracture density of the post-blast bedrock surface will be increased but the natural fracture density, which controls groundwater migration in the bedrock, will be maintained within several feet of the residual blast surface. Blasting will not affect the rock fracture density in proximity to neighboring wells or their existing zone of groundwater capture.”

As for blasting, that Feb. 5 report asserts, “The groundwater plume associated with the Swift Site appears to be concentrated in the shallow overburden groundwater and to a significantly lower degree in the bedrock aquifer and migrating to the southwest. The contaminant plume is located more than 1,500 feet from the Property, outside of the likely radius of influence from blasting.”

(That distance is disputed as noted earlier in the story)

The new WSP submittal also addressed another issue, stating, “Acid Rock Drainage (ARD) is associated with high levels of pyrite that sometimes can occur in the rocks of the Central Valley Geologic Terrain. The Property is located along the western edge of the Central Valley Terrain, however, the available geologic information for the bedrock unit beneath the property does not indicate that pyrite is present at high enough levels to produce ARD.”

Reached by The Valley Press after the meeting, Markowitz did contend the developer’s experts will offer compelling evidence that the project will not cause undue harm.

“I am confident that when we submit our case, that it will be clear that they have not shown that it is reasonably likely that the project will cause unreasonably pollution, impairment, or destruction of the public trust in a natural resource,” he said.

Additionally, the public is of course, entitled to speak at a public hearing. The commission has received hundreds of letters (most via email) about the project, with some support, but mostly opposition.

Some members of the public spoke about the issue in meetings last year and more spoke at the January meeting. However, callers from the public did not have a chance to speak Feb. 17 but the commission will open the floor to residents again at some point. Whether that will happen at the next meeting is to be determined as the information before the commission has gotten increasingly complex and detailed and the developer’s experts will likely take some time to answer the questions raised and present their take on comments from the last two meetings – first for the intervention petition and later for the application generally.

The commission, with Slater’s help is also dealing with a myriad of ongoing issues. Those include what criteria it weighs for the intervention and whether it feels the DEEP records on the Swift site are needed before the hearing is closed and/or a decision rendered.

It is also working to expand the scope of a town consultant hired to review the work of WSP, funded so far, by the applicant.

Those wishing to provide comments for the record can email them to NPade@TownofCantonCT.org. While there are no hard and fast requirements, due to the volume of feedback the proposal has generated and the need to prepare packets for each meeting, sending those comments as soon as possible is always helpful. Town staff noted that sending feedback by March 11 is ideal.

Those looking to find meeting agendas, packets and recordings can visit https://townofcantonct.org/agendas-minutes-meetings