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HomeMy WebLinkAboutWell New 215 Barber Hill Road SAWN SF-4� ---____--- --- - - - - 1540 SULLIVAN AVENUE• SOUTH WINDSOR, CT 06074 soR•co�' TELEPHONE(860) 644-2511 March 18, 2011 Mr. John Dzen,Jr. 985 Foster Street South Windsor, CT 06074 Dear Mr. Dzen, Based on information recently obtained from the Department of Environmental Protection,that the existing well located at 215 Barber Hill Road has in the past been tested for TCE and none was detected, you may use that well as a water service for you proposed new home in that area. Services of pollution, septic system,buried oil tank, etc. cannot be located closer than seventy five feet from the well. If not already so,the well casing must extend twelve to eighteen inches about finished grade. Before use, a normal potability test plus testing for TCE must be conducted on the supply and it must be tested for TCE on a yearly basis. If you have any questions, contact the Health department at 860-644-2511 ext. 248. Yours truly, Robert Deptula, R.S. Environmental Health Officer � - - - - - - �� � c�„�„ � — aw. �� — y e � i i LEGAL SERVICES REQUEST FORM NAME:__ Robert Deptula __ DEPARTMENT: Health -- DATE OF REQUEST: 1/3/2011 REQUESTED DUE DATE: 1-18-2011 APPROVED BY DEPARTMENT HEAD OR CHAIRPERSON: TYPE OF SERVICE REQUESTED: (Check Appropriate Box) ❑ Legal Opinion ❑ Review Contract or Other Document ❑ Litigation (Specify Document Below) ❑ Attend Meeting ❑ Prepare Contract or Other Document ❑ Other (Specify Document Below) (Specify Below) QUESTION TO BE ANSWERED OR SPECIFIC SERVICE REQUESTED: John Dzen Jr. owns 60 plus or minus acres of land on Barber Hill Road. He stated to me that he wishes to build one house for his own use on this parcel. This sixty acre parcel is in an area of known ground water contamination(TCE). There is an existing drilled well on the property. r. Dzen wishes to use this well as a potable water supply for this proposed new dwelling. Several possibilities exist with the contamination: 1. It may stay the same 1 2. It may decrease t.l �rt 3. It may increase above the action level making the water non potable with out installing a proper filtration system Department of Environrra =- — pply to .w � Fus��t3K % . ,-hn � �`v�fiiltratien However, it is the local Health Department, not the DEP that approves the use of drinking water wells for domestic use. This situation raises questions as to the Town's liability if the use of that existing well was approved as potable water supply. 1. If the well use is approved who would be responsible for monitoring (testing)the supply? 2. If the contaminant level increases to the level where it is non potable, who is responsible for installing a filtration system? 3. Who is responsible for monitoring the filter, changing filter media, and testing the water on a routine basis? Does the Town have any liability for approving the use of a well which it knows may become contaminated above the action level for that contaminant Mr. Dzen's rough estimate to connect to the nearest public water line is $60,000 plus or minus. FACTS: (Overview of Facts Surrounding Question Presented or Service Requested) Please attach appropriate paperwork for Town Attorney. Approved by Town Manager: Date: NOT Approved by Town Manager: Date: Reason for denial: r s � MEMORANDUM TO: Matthew Galligan Robert Deptula FROM: Sarah P. Kowalczyk DATE: January 18, 2011 RE: Drinking Well Water Issues Background: In its Legal Services Request Form dated January 3, 2011, the Town of South Windsor(the "Town") provided the following factual background and presented the four questions noted below. John Dzen, Jr. owns approximately sixty(60) acres of land on Barber Hill Road in South Windsor, Connecticut. He is interested in building one house for his own use on this parcel. This sixty acre parcel is in an area of known ground water contamination trichloroethylene ("TCE"). There is an existing drilled well on the property. This well has been tested in the past and has shown varying amounts of contamination of TCE, although none above the action level. Mr. Dzen wishes to use this well as a potable water supply for this proposed new dwelling. It is possible that the contamination may increase, decrease or increase above the action level, thereby making the water non- potable without installing a proper filtration system. As a side note, Mr. Dzen's rough estimate to connect to the nearest public water line is $60,000 plus or minus. The Department of Environmental Protection ("DEP") is said not to object to the use of the well for water supply to a dwelling as there are many wells statewide that are used for drinking with filtration systems to remove similar contaminants. However, it is the local Health Department, not the DEP that approves the use of drinking water wells for domestic use. Issues: This situation raises questions as to the Town's liability if the use of that existing well was approved as potable water supply. 1. If the well use is approved who would be responsible for monitoring (testing) the supply? 2. If the contaminant level increases to the level where it is not potable, who is responsible for installing a filtration system? 3. Who is responsible for monitoring the filter, changing filter media, and testing the water on a routine basis? 4. Does the Town have any liability for approving the use of a well which it knows may become contaminated above the action level for that contaminant? Brief Answer: In summary, based on our review of the applicable statutes and regulations, and on the information provide by the Town, the fir tgree-issaes are cumulatively addressed in one brief response: Private well owners are responsible for the quality of their own drinking water, including testing, maintenance and treatment systems. With respect to the fourth issue, the local director of health has certain obligations in approving the use of an existing well, including ensuring that the results of the laboratory analyses of the water comply with the maximum contaminant level standards set forth in the Public Health Code. Moreover, while a private water supply system owner is not generally required to test water quality, the Public Health Code does provide the local health department with the authority to require testing if reasonable grounds exist to suspect that organic chemicals may be present in the private water supply system to ensure that the contamination has not reached actionable levels. The discussion below assumes that a permit was obtained when the existing well was drilled. Discussion: Responsibility for Maintenance of the Existing Well Department of Public Health Publications According to the Connecticut Department of Public Health ("DPH"), there are approximately 400,000 private wells in Connecticut, and these private or domestic wells are not currently regulated by the United States Environmental Protection Agency ("EPA"). Private well owners are responsible for the quality of their own drinking water. The DPH's website contains introductory statements explaining that local health departments have the authority over private wells in their respective towns. The DPH has issued several publications relating to private drinking water wells. While many of them contain technical data pertaining to testing of water, several contain information related to a well owner's responsibility for testing and maintenance of its well. For example, "Publication No. 24: Residential Well Water Testing" highlights that the EPA does not regulate private wells. "Private well owners are responsible for the quality of their own well . . . [and] are not generally required to test their drinking water." The publication does note that a private well owner may use the public drinking water -2- Memo re_Drinking Well Water Issues standards as guidelines to ensure drinking water quality. "Publication No. 23: Private Drinking Water in Connecticut" reiterates this position and suggests the following: Private well owners should consider the cost of well water maintenance and protections as a budget item, just as if they were paying a water bill. Improvements to water wells, treatment systems and plumbing are a necessary expense that directly benefits the homeowner. Although some treatment systems are expensive, the cost is often less than the price paid by the owner in health affects or nuisance problems. Depending on how long the existing well has been out of service and whether a new pump needs to be installed, the owner's obligations in reactivating this well will be varied and possibly costly, notwithstanding ongoing maintenance costs. "Publication No. 26: Private Drinking Water Wells" emphasizes that responsibility for wellhead protection, adequate well maintenance and water testing falls on the homeowner, although the local health department or the DPH can assist with information about water quality concerns. (Although not applicable to this fact pattern, Publication No. 26 does note that the Connecticut Department of Consumer Protection regulates the construction of wells through their well drilling regulations. A review of the well drilling regulations does not provide any additional guidance with respect to the subject fact pattern.) Applicable Regulations Consistent with the DPH Publications, and as will be discussed in more detail below, Public Health Code § 19-13-Bl 01 requires that that an owner of a private water supply system' have the water quality of a newly constructed source of private water supply sampled by a qualified individual and analyzed by an approved laboratory. Although Public Health Code § 19-13-13511 requires that public water supply wells are sampled by the state department of public health or the local director of health, no such regulation exists for private water supply wells. Public Health Code § 19-13-13101(d), however, does give the local director of health authority to require a sample to be analyzed for organic chemicals (including TCE) when reasonable grounds exist to suspect that organic chemicals may be present in a private water supply well. An anonymous call to the DPH confirms that this section is intended to give the local director of health authority to require that the owner have a sample analyzed. Therefore, even though the local department of health may require the sampling and analysis, it does not become responsible for doing so. The DPH emphasized in the call that the responsibility for having a sample analyzed is "always the owner or the builder." "Private water supply"system defined as "any source of private water supply serving a single consumer and less than 25 persons, and used for drinking or other domestic purposes." "Consumer" is defined, in part, as a private dwelling. -3- Memo re_Drinking Well Water Issues The Local Department of Health's Obligations in Approving Use of Drinking Water Well for Domestic Use Connecticut General Statute ("C.G.S.") § 19a-36 (formerly§ 19-13) relates in part to the use of existing.private wells.2 A review of the history of the statute reveals that Public Act 02-102 added subsection (d) to § 19a-36 to permit a local director of health to authorize the use of an existing private well or the installation of a replacement well at a single-family residential premises located within 200 feet of an approved community water supply system, subject to certain conditions. Public Act 07-244 then amended subsection (d) to subject local health directors' decisions regarding the use of an existing private well to "applicable state regulations." Applicable state regulations are discussed below. C.G.S. § 19a-37 (formerly§ 19-13a) ("Regulation of Water Supply Wells and Springs") authorizes the Commissioner of Public Health ("Commissioner") to adopt regulations in the Public Health Code for the preservation of the public health pertaining to (1) protection and location of new water supply wells or springs for residential construction or for public or semipublic use, and (2) inspection for compliance with the provisions of municipal regulations. By this statute, the Commissioner is instructed to adopt regulations for the testing of water quality in private residential wells. Public Health Code § 19-13-Bl01, pursuant to the guidelines set by C.G.S. § 19a-37, requires that that an owner of a private water supply system have the water quality of a newly constructed source of private water supply sampled by a qualified individual and analyzed by an approved laboratory. Public Health Code § 19-13-B101 also requires 2 The current version of C.G.S. § 19a-36(d)states the following: (d) The local director of health may authorize the use of an existing private well, consistent with all applicable sections of the regulations of Connecticut state agencies, the installation of a replacement well at a single-family residential premises on property whose boundary is located within two hundred feet of an approved community water supply system, measured along a street, alley or easement,where(1)a premises that is not connected to the public water supply may replace a well used for domestic purposes if water quality testing is performed at the time of the installation, and for at least every ten years thereafter, or for such time as requested by the local director of health, that demonstrates that the replacement well meets the water quality standards for private wells established in the Public Health Code, and provided there is no service to the premises by a public water supply, or(2)a premises served by a public water supply may utilize or replace an existing well or install a new well solely for irrigation purposes or other outdoor water uses provided such well is permanently and physically separated from the internal plumbing system of the premises and a reduced pressure device is installed to protect against a cross connection with the public water supply. Upon a determination by the local director of health that an irrigation well creates an unacceptable risk of injury to the health or safety of persons using the water, to the general public, or to any public water supply, the local director of health may issue an order requiring the immediate implementation of mitigation measures, up to and including permanent abandonment of the well, in accordance with the provisions of the Connecticut Well Drilling Code adopted pursuant to section 25-128. In the event a cross connection with the public water system is found, the owner of the system may terminate service to the premises. -4- Memo re_Drinking Well Water Issues approval by the local director of health that the results of the laboratory analyses comply with the maximum contaminant level standards ("MCL") set forth in Public Health Code § 19-13-13102 before the private water supply is used for domestic purposes. This raises an interesting issue, as there is an existing well on the property, which presumably has not been used for domestic purposes in recent history. Therefore, while the well may not be "newly constructed," to ensure that the local health department's obligations under the statute are met, it would be advisable for the health department to review the results of a laboratory analyses to ensure that the results of the analysis comply with the MCL before Mr. Dzen is approved to use the well for domestic purposes. Potential Liability for Approving the Use of a Well with Known Contamination C.G.S. § 19a-207 dictates that the local department of health is charged with enforcing the Connecticut Public Health Code, although a municipality may adopt local ordinances that are consistent with or more stringent than the public health code 3. The Department of Public Health itself may enforce the public health code if the local department of health fails to. While the regulations do not contemplate a situation in which there is a concern that a contaminant may reach an actionable level, Public Health Code § 19-13-13101, pursuant to the authority provided in C.G.S. § 19a-37, appropriately dictates that the local director of health shall require a sample to be analyzed for organic chemicals when reasonable grounds exist to suspect that organic chemicals may be present in the private water supply system and that "reasonable grounds means any information that is known by the local director of health that indicates that at the time of sampling the particular private water supply system is located on or in proximity to land associated with the past or present production, storage, use, or disposal of organic chemicals or such information as derived from a phase I environmental site assessment." As noted above, the owner is responsible for having a sample analyzed if the local director of health requires a sample to be analyzed. The local department of health's only obligation in authorizing the use of the well is to ensure that analyses comply with the MCL set forth in Public Health Code § 19-13- B102. However, knowledge of past sampling results demonstrating the existence of contamination would Likely constitute reasonable grounds for the local director of health to require a sample to be analyzed at regular intervals to ensure that the TCE contamination complies with the MCL. 3 The Town of South Windsor does not appear to have any ordinances pertaining to private wells, save Section 98-226 which notes that"[n]o building or structure shall be erected for use as living quarters for one or more families unless it is supplied with drinking water from a well servicing no other structure used as Living quarters or unless water for use by the structure is supplied by a water company specially chartered by the general assembly and approved by the public utilities commission." -5- Memo re_Drinking Well Water Issues The liability of local health departments for approving private wells that later become contaminated is not settled. In general, municipal liability hinges upon whether _the acts complained of are discretionary or mandatory. There is a superior court level matter in which a local health department was named in a lawsuit for alleged negligence in approving a private well. In Pu rab v. Maple Leaf Constr., 1996 Conn. Super. LEXIS 23 (Conn. Super. Ct. Jan. 23, 1996) (J.D. Hartford at New Britain), property (interestingly on the same road as the property at issue, within approximately two (2) miles) purchased by the plaintiffs included a newly installed well that had been approved by the health department. The property owners were subsequently notified by the DEP that the well water contained concentrations of ethylene dibromide, which far' exceeded levels permitted by state regulations, and that it could no longer be used for drinking or cooking purposes. Plaintiffs sued the North Central District Health Department, alleging that it was negligent "when it reviewed and approved a private water system for the property, notwithstanding the fact that the ground water did not meet applicable health and safety standards." In considering a motion to strike, the court noted that, under Conn. Gen. Stat. § 52-557n(b)(7), to qualify for immunity, the health department had to have been carrying out a discretionary, rather than ministerial, function. The court found that it could not be determined, as a matter of law, whether the District Health Department, in reviewing and approving the plaintiffs' private water system, was fulfilling a discretionary or ministerial function and concluded, therefore, that such a determination did not lend itself to resolution by a motion to strike. In other words, the Court did not decide whether the decision to approve a private well was discretionary under the circumstances of that case. Nevertheless, the court noted that it was proper for courts to rule on a motion to strike when the determination of whether the duties were ministerial or discretionary could be made as a matter of law. In distinguishing the uncertainty of liability described in Pugrab, where the issue was a local heath director's approval of the use of the well, one could argue that the health department's decision whether to test a private well for contaminants is not discretionary, but rather, is mandatory (use of the term "shall" is mandatory). Thus, it is more likely that a court would find a local health director liable "as a matter of law" for failing to order proper testing when there is reason to fear known or likely contaminants. Conclusion While the liability for maintenance, testing and quality of the well ultimately befalls the property owner, the local department of health can take certain steps to avoid potential liability. Along with reviewing the sample analyses in accordance with Public Health Code § 19-13-B102 and the MCL, prior to approving use of the well and as a condition of approval of the use of the existing well, the local department of health may rely upon the authority of C.G.S. § 19a-37 to require that the owner have samples analyzed for organic chemicals initially and at regular intervals to ensure that TCE contamination levels remain in compliance with the MCL. -6- Memo re_Drinking Well Water Issues LEGAL SERVICES REQUEST FORM NAME: Robert Deptula DEPARTMENT: Health DATE OF REQUEST: 1/3/2011 REQUESTED DUE DATE: 1-18-2011 APPROVED BY DEPARTMENT HEAD OR CHAIRPERSON: TYPE OF SERVICE REQUESTED: (Check Appropriate Box) ❑ Legal Opinion ❑ Review Contract or Other Document ❑ Litigation (Specify Document Below) ❑ Attend Meeting ❑ Prepare Contract or Other Document ❑ Other (Specify Document Below) (Specify Below) QUESTION TO BE ANSWERED OR SPECIFIC SERVICE REQUESTED: John Dzen Jr. owns 60 plus or minus acres of land on Barber Hill Road. He stated to me that he wishes to build one house for his own use on this parcel. This sixty acre parcel is in an area of known ground water contamination(TCE). There is an existing drilled well on the property. This well has been tested in the past and has shown varying amounts of contamination of TCE, although none above the action level. Mr. Dzen wishes to use this well as a potable water supply for this proposed new dwelling. Several possibilities exist with the contamination: 1. It may stay the same 2. It may decrease 3. It may increase above the action level making the water non potable with out installing a proper filtration system The Department of Environmental Protection would not object to the use of this well as supply to a dwelling since there are many wells state wide that are used for drinking which have filtration systems to remove similar contaminates. However, it is the local Health Department, not the DEP that approves the use of drinking water wells for domestic use. This situation raises questions as to the Town's liability if the use of that existing well was approved as potable water supply. 1. If the well use is approved who would be responsible for monitoring (testing) the supply? 2. If the contaminant level increases to the level where it is non potable, who is responsible for installing a filtration system? 3. Who is responsible for monitoring the filter, changing filter media, and testing the water on a routine basis? Does the Town have any liability for approving the use of a well which it knows may become contaminated above the action level for that contaminant Mr. Dzen's rough estimate to connect to the nearest public water line is $60,000 plus or minus. FACTS: (Overview of Facts Surrounding Question Presented or Service Requested) Please attach appropriate paperwork for Town Attorney. 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