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Is the Bethel Proposed Crematorium Applicant McLoughlin Following Procedure Properly? A Recap of What Transpired at the Last Crematorium Public Hearing

“Right now this plan violates your own regulations,” said Attorney Neil Marcus to the P&Z, about the crematorium site plan.

 

Report by Paula Antolini
April 27, 2015 4:10PM EDT

 

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OPINION

Is the Bethel Proposed Crematorium Applicant McLoughlin Following Procedure Properly?  A Recap of What Transpired at the Last Crematorium Public Hearing

“Right now this plan violates your own regulations,” said Attorney Neil Marcus to the P&Z, about the crematorium site plan.

It doesn’t matter what nationality you are, what religion you follow, or where you live in Bethel, the proposed crematorium issue negatively affects all residents and businesses, regarding health, safety and home and business real estate values, in the overall impact.

Many residents and business owners feel that a crematorium will affect the character of Bethel and how others view the Town of Bethel, they feel it will discourage new business from coming to Bethel, as many residents stated at past P&Z public meetings and in letters. It has already caused one present business owner in Clarke Business Park, Mr. Johnny Choi, owner of Soho Designs and four commercial properties, to put his properties up for sale, strictly based on the text amendment change last year to allow a crematorium in Clark Business Park, he said in a letter to the P&Z recently.  This woud be a loss of $41,000 in revenue for the town.  Another Clark Business Park resident, Greg Marciano, owner of CT Coining, hired a lawyer to oppose the crematorium, asking for a moratorium and text amendment, to not allow crematoriums in Bethel. Drive through Clark Business park and view an unusually high number of realtor signs on lawns in front of businesses, compared to less signs last year. This is very much a concern to Bethel residents.

It is important that we prevent the proposed crematorium from being approved and that we insure no other crematorium will be allowed in Bethel. This is imperative to protect the health of residents and their pets too, and to protect home and business real estate values. In this tough economy Bethel residents do not need yet another burden on home and business owners to jeopardize their investments. But more importantly, to put our residents’ health at risk in any way is unacceptable. How much would YOU consider a “safe” amount of prolonged toxic mercury exposure to your family?

This has become a national problem, it is not just a problem in Bethel. See: https://no2crematory.wordpress.com/ Many communities are fighting back due to the toxins involved and the crematorium locations close to residential communities, where the 500 foot regulation has no meaning because toxins in crematorium emissions in the air do not know to stop at 500 feet, and when landing on water can travel to many other areas. Residents battling this same issue are experiencing odors and black smoke traveling over their homes, and have views of stacks in some cases, and fear that continued prolonged exposure exposes them to all sorts of deadly ailments, mainly from mercury/methylmercury from emissions, known to cause these ailments. What about the workers in the business park, and also the crematorium workers too? They will be directly exposed.

The EPA does not regulate crematoriums because they do not consider human remains “solid waste” despite toxins produced in incineration, so therefore it does not fall under the Clean Air Act. The state must insure proper regulatory procedures are followed. A Note on why EPA doesn’t regulate crematories: https://no2crematory.wordpress.com/2015/01/07/a-note-on-why-epa-doesnt-regulate-crematories/

According to a letter from the Bethel Health Department to the P&Z dated April 14, 2015, attorney Peter Olsen, representing the crematorium applicant B. Shawn McLoughlin, has not yet sent in an crematorium applications to the CT Department of Energy and Environmental Protection (DEEP) and the CT Department of Public Health (DPH) for review and approval of the crematory project. From what was observed in past crematorium public hearings and the April 14 hearing, Olsen is trying to get the P&Z to approve his project THEN submit applications to the DEEP and DPH for approval. Isn’t this a bit backwards? Would the P&Z ever approve a application for a crematorium site plan for a 5,000sf building, and another application for a permit to use the building as a crematorium, BEFORE they had the DEEP and DPH approval FIRST? Why are the applicant and his attorney not submitting these required applications now? Why are they stalling?

Attorney Olsen also wants to possibly interpret the zoning regulations his own way, and has challenged the P&Z about the actual definition of several regulations. For example, one regulation requires that the discharge points (where emissions from incinerated bodies are discharged) be screened from view in all directions, but he disputes certain directions at higher elevations (such as homes?) do not really count if they see the smokestacks, because after all, they have provided “screening” in the manner they see fit, not according to regulations. Olsen and the applicant also think this does not apply to CT Coining’s view of the crematorium stacks from their property’s upper levels in their building, admitting CT Coining will probably have a view of the stacks.

Olsen is also possibly trying to skirt the 500 foot regulation, which says the crematorium must be 500 feet from a residence, by saying only the part of the building where the retorts (ovens) will be, the part actually used for a crematorium, should count in the regulation measurement, and not the entire building, because there will be tenants in the other part. This was quickly disputed by the attorney Neil Marcus, representing CT Coining, the business next door to the proposed crematorium site, who said he never heard of a regulation only pertaining to what is being done inside of a building, and not the entire structure. Attorney Olsen’s solution is that they could split the building in two or move the building, in the proposed plans.

Olsen challenged the P&Z’s ability to change the text amendment that was approved last year, the one that then allowed a crematorium in Clark Business Park, saying once they gave an approval that could not take it back.

Olsen also believes there is no conflict with the fact that a next door business owner has presently requested a moratorium on crematoriums and a text amendment change to not allow crematoriums in Bethel, and the applicant’s present proposal for the P&Z to immediately approve the crematorium. He said, “the commission can approve or not approve the moratorium, or the text amendment, it really has no impact on this application. The Commission has to review this application as the Zoning Regulations stand on the date they were submitted, and that’s clearly spelled out in the statutes….so there’s no conflict.” So if these two requests are issues the P&Z is dealing with presently, why are they not a conflict? Shouldn’t the P&Z consider both sides equally? Or hold off on approval and consider a moratorium to give the P&Z more time to research crematorium facts, especially health related and real estate values issues, and input from residents? Or is this a race to see who submits an application first, then they “win”?

Olsen seems to have lightly covered, or not covered at all, some crematorium issues that are of utmost importance to residents, regarding safety issues. P&Z Chairman Pat Rist asked Olsen to address questions asked by resident Mr. Stowle earlier in the hearing, wanting to make sure he covered all of the resident’s questions. Rist said the resident wanted to know “when the DEEP process would start, what the proposed air pollution devices were all about, retorts regulated by, and an environmental impact statement.” Olsen’s response was, “I tried to cover all that in an umbrella I guess. We won’t start our DEEP application until after this commission acts, and hopefully that action is approval otherwise we won’t be going forward with the DEEP. We will also likely have to wait for that decision to be final before we start that process, maybe, maybe not. It’s a question of whether or not you want to take the risk,” Olsen said to the P&Z Commission. Take the risk? With resident’s health and safety? Why would the P&Z ever want to bypass DEEP and DPH regulations to approve the crematorium now? A good question. And the Bethel Health Department also stated the DEEP and DPH applications should be approved first. So why is this crematorium application even being considered?

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Photo above: Applicant B. Shawn McLoughlin’s  present business, Mono-crete Step, on same property where he wants to build the crematorium.

Attorney Neil Marcus found quite a number of issues and violations in the applicant’s site plan. Anything over a certain height is considered a building, according to the P&Z regulations, Marcus said, so the proposed 13 foot retaining wall in the crematorium site plan goes against the P&Z’s own regulations. (See detailed info below.)

He also found issues with the boundaries, in that he discovered a residence could possibly be within the allowed boundary lines, also a violation. Marcus said, “It is my understanding that there is a residence in the park itself…we have no distance to that residence. We would like certification that the discharge points are 1000 feet from that residence.”

Regarding the screening issues from CT Coining, Marcus requested they shoot site lines so they can see what the heights will be from anywhere on Mr. Marciano’s property, whether he can see the smoke stacks. “We need a plan that shows you can’t see them, applied to your own regulation,” Marcus said to the Commission. Marcus also questioned the correct placement of the vegetation screen that is supposed to block the loading facilities area.

Marcus brought up the definition of a crematorium, as also stated in Steve Palmer’s memorandum, he said, he cites the statute as “as used in this section, crematory means a building or structure containing one or more cremation chambers,” that’s a Zoning requirement, not a public health requirement. He said the engineer is not a Zoning expert and suggested that the Commission consult Mr. Andres regarding what he thinks the CT statute means, he said, because “I’ve never seen a situation where you talk about zoning by a portion of a building.” “As far as I’m concerned, this whole building is the crematorium,” Marcus said. He pointed to the area on the plan where the units would be and said, “The unit is within 500 feet and it’s invalid.” Marcus said.

There might be an issue with the hours of operation, stated as “7:00 a.m. to 7:00 p.m. Monday to Friday, and Saturday 7:00 a.m. to 2:00 p.m.,” but also states “funeral directors will be allowed to deliver human remains to the crematory in unusual or emergency situation.” It then states “death can be highly unpredictable” and that “in the event of an excess number of human remains requiring cremation on any particular day, the crematory may open for limited hours on Saturday afternoon or Sunday.” So doesn’t this pretty much give them leeway to open seven days a week, any hours they want, if they claim the situation is overload or unusual? The will also have the capacity to store 6 dead bodies as well as a “staging area” that holds 4 dead bodies to be cremated, while others are in the retort. Are these areas temperature controlled? Is there a plan for power outages? What training do workers need to handle human remains?

Has the applicant and/or attorney discussed safety measures at all? Besides the equipment, safety for workers and people in the park too?

Many many questions remain.

*****

There are numerous letters written to the P&Z opposing the crematorium, many from business owners and the Economic Development Commission, here are some of the names:

Mike Boyle, Chairman, Economic Development Commission
Sheldon Kahan, President, Interstate + Lakeland Lumber
Johnny Choi, CEO, Soho Designs
Kevin McMahon, President, K-Man Glass Corp.Paul Petrikas, Vitta Corp.

I will write more about their letters in my next article.

*****

See detailed information of some of the dialogue of the meeting:

THE PROPOSALS

The last Bethel Planning & Zoning Public Hearing was held on April 14, 2015. At this meeting there was a tremendous amount of material to cover about issues concerning the proposed crematorium, so much so, that the meeting ran over four hours long, well past 11:00 p.m.., and is continued to tomorrow, April 28, 2015 for some issues, and May 12, 2015 for other issues.

The applicant’s attorney, Peter Olsen, and a Clarke Business Park business owner’s attorney, Neil Marcus, representing CT Coining and owner Greg Marciano (located next door to the proposed crematorium site at 10 Trowbridge Drive,, Bethel CT) were present, and both attorneys gave lengthy testimony.

CT Coining was calling for two amendments to the Zoning Regulations of the Town of Bethel. The first is to allow the adoption of a moratorium on applications for crematories. The second is an amendment to eliminate crematoriums from the regulations as an allowed use in the IP Zone. The hearing was continued to April 28, 2015.

The crematorium applicant, B. Shawn McLoughlin, was requesting approval of a site plan for construction of a 5,000 square foot building which will contain a 1,667 square foot unit for crematory use, and approval of a permit to use that structure as a crematorium.

The hearing discussed DEEP procedures and jurisdiction, retorts, parking, landscaping, and the Commission requested that staff consult with Counsel Attorney Charles Andres, on interpretation of State Statutes pertaining to the structure and distances. The hearing was continued to May 12, 2015.

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Photo above: (Center) Attorney Olsen representing crematorium applicant B. Shawn McLoughlin.

THE TESTIMONY FROM PETER OLSEN, ATTORNEY FOR THE CREMATORIUM APPLICANT

The testimony of Peter Olsen, representing the crematorium applicant, addressed certain issues, giving his own interpretation of regulations. Some issue discussed were:

Regarding views from all directions, of the crematorium smokestacks, Olsen believes the required screening does not have to block the view from residences on higher elevations. Olsen said, “The regulation requires that the discharge points be screened from view in all directions, but that does not mean, in my opinion, that the smokestacks cannot be seen from all directions, they just need to be screened. So, for example, if you are on Goodhill Road, as one of the residents was earlier tonight, and you’re way, way up on the hill, are you going to be able to see the smokestack? Probably. But that doesn’t mean that we won’t have screening all the way around it. So I would say that as far as shooting site lines in all directions, that’s not really the appropriate way to meet regulations. If the Commission would like us to do it then we will prepare a study showing what you can see.”

Regarding the view from the adjacent building, CT Coining, of loading facilities, Olsen believes the regulation does not pertain to ALL views. Olsen said, “We have proposed a number of landscaping elements that screen when you [hearses] drive into the building…as far as this side, the CT Coining property, there’s a 13 foot retaining wall directly adjacent to that loading operation. So, I can’t imagine that would be visible at all. From the top of the building it will certainly be visible from the adjoining property.”

Regarding the 500 foot rule, Olsen believes that the 500 foot rule regulation should only pertain to the part of the building being used for a crematorium, and not measured by the entire building. Olsen said, “The commission has a regulation based on a statute and certainly you might like to ask Mr. Andres [Commission lawyer] for his opinion and that’s fine.” “Our answer to that would be, okay, we’ll separate the crematorium building from the rest by a foot. It’s not really going to violate anything, it’s certainly doable, it’s just very inefficient for us, but if we have to do it we’ll do it.” “We think you should interpret it as…it’s a unit in the building. All of the crematorium operations in that unit are outside of 500 feet.”

Regarding the CT DEEP and CT DPH regulations, referring to the letter from the Bethel Health Department Director of Health, Laura Vasile, Olsen believes that the P&Z should approve their sit plan permit and crematorium use permit before they get approvals from the DEEP and DPH. Olsen said, “I actually was very pleased with Laura Vasile’s letter. I thought it was a good analysis of the regulatory framework we’re operating under. She essentially said this is governed by the DEEP and the DPH so make your applications to them. In response to one of the public comments, we think we have to wait until we are through this process, and the commission has approved the location and the site plan for a special permit, before we can submit to the state. I know that’s the case with the DPH, and I think it’s the case with the DEEP. I wouldn’t want to be there in front of the DEEP with all the detailed data that we have to present for a project that needs approval.”

BETHEL LAND USE

Regarding regulations of CT DEEP and CT DPH, Director of Land Use Steve Palmer said, addressing attorney Olsen, “A lot of the questions about compliance are not DEEP or DPH related, hours of operation, that’s where we locally, you know, obviously have some responsibility.”

Steve Palmer also had concerns about Olsen’s comments that only part of the building (the part that will be used as a crematorium) should be considered when addressing regulations for distance. “The building and the crematorium within it,” Palmer said. Palmer also said, “That’s an engineer’s interpretation of the state statue and I think we need a Zoning interpretation.”

Beth Cavagna of Bethel Land Use addressed Olsen with some concerns. She said, “Peter I just wanted to address you guys, under the special permit criteria, there’s some environmental and conservation aspects to the application, and after doing the site walk, I think I did mention to you and Chip, as far as the crevice that was there and in previous applications, when dealing with up on the hill with Bernie, was it Bernie? they were in for an excavation fill, do a remediation action there. There was concerns dealing with some of the endangered species, Federal and State, in that area, and flora and fauna, limestone, not limestone, actually what is the rock formations there, so we could feel comfortable if you are talking about filling them, and I would just like that to be answered, if we can, during the application process, under the special permit criteria.”

BETHEL HEALTH DEPARTMENT (BHD)

Regarding requirements for their approval of the crematorium site plan and special permit application to construct the 5,000sf building for use as a crematorium, in a letter dated April 14, 2015, from Laura Vasile (Director of Health. Bethel Health Department) to the P&Z, Vasile states in part, “The applicant is required to submit a application to the Department of Energy and Environmental Protection (DEEP) and the Department of public Health (DPH) for review and approval of the crematory project.” Vasile also stated, “DEEP has not yet received a permit application for a crematory in Bethel.” The letter also says, “The DPH Toxicologists also shared that crematoriums have the potential to lead to nuisance odor complaints from workers in nearby buildings. Air quality complaints would be referred to BHD and DEEP.” and “The DPH Toxicologist did note that the proposal to have the crematorium within a building with two other industrial tenants may lead to a potential for neighboring worker exposures and given that crematoriums sometimes lead to nuisance odor complaints from workers in nearby buildings, it is critically important that the crematory be properly managed to minimize the release of particulates and odors.”

Regarding hazardous waste and/or emission data NOT submitted by the crematorium applicant, the Vasile letter states, “The project application notes that the crematory hazardous waste and emissions will be addressed in an appropriate manner. No hazardous waste and/or emission data was submitted with the application. The applicant wrote of intent to submit hazardous waste management information to the Bethel Planning and Zoning Commission during the application hearing. The DEEP crematoriums permit process and application determination will provide the Commission with verification that the DEEP air regulations and air quality standards are in compliance.”

The Bethel Health Department/Vasile letter says that all DEEP and DPH requirements are met and maintained and incorporated into the Bethel Planning & Zoning Commission project approval. The letter states, “Bethel Health Department (BHD) has no objection to the proposed application as long as the recommended provisions noted below are incorporated into the Bethel Planning and Zoning Commission project approval to assure that DEEP and DPH permit requirements and approvals are met and maintained. Crematoriums may lead to nuisance odor/particulate complaints and reasonable planning, design, operation, and a compliant response action plan, can support use of a crematory that meets state statues and regulations, and prevents possible nuisance conditions (particulate odor exposures), for the protection of the environment, workers, and the general public on the site and in the vicinity area….”

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Photo above: (Right) Attorney Neil Marcus, representing CT Coining.

THE TESTIMONY FROM NEIL MARCUS, ATTORNEY FOR CT COINING (Business next to proposed site of crematorium)

Regarding retaining wall heights, one retaining wall is over 8 feet, with the engineer’s map saying the wall is about 13-14 feet. Marcus said to the P&Z, that the engineer said anything over 8 feet is in fact a building, a structure, so the retaining wall itself is outside the setback, so what you have before you today is a plan that currently violates your own zoning regulations.” He talked about solutions involving moving the entire building, but that would incur problems with enough area for the loading, “it’s a challenge,” he said. “Right now this plan violates your own regulations.”

Regarding distance required from a residence, Marcus found issues with the boundaries, in that he discovered a residence could possibly be within the allowed boundary lines, also a violation. Marcus said, “It is my understanding that there is a residence in the park itself…we have no distance to that residence. We would like certification that the discharge points are 1000 feet from that residence.” Regarding the screening issues from CT Coining, Marcus requested they shoot site lines so they can see what the heights will be from anywhere on Mr. Marciano’s property, whether he can see the smoke stacks. “We need a pan that shows you can’t see them, applied to your own regulation,” Marcus said to the Commission. Marcus also questioned the correct placement of the vegetation screen that is supposed to block the loading facilities area.

Regarding only counting part of the building, the part used for a crematorium, when calculating distance requirements to a residence, Marcus brought up the definition of a crematorium, as also stated in Steve Palmer’s memorandum he said, he cites the statute as “as use in this section, crematory means a building or structure containing one or more cremation chambers,” that’s a Zoning requirement, not a public health requirement. He said the engineer is not a Zoning expert and suggested that the Commission consult Mr. Andes regarding what he thinks the CT stature means, he said, because “I’ve never seen a situation where you talk about zoning by a portion of a building.” “As far as I’m concerned, this whole building is the crematorium,” Marcus said. He pointed t the area on the plan where the units would be and said, “The unit is within 500 feet and it’s invalid.” Marcus said.

RESIDENTS’ COMMENTS

Moratorium applicant Greg Marciano, from CT Coining, asked “who is the agency that is going to be auditing, to make sure everything that is said, is being done? Is it a town body? Is it a state body? Is it the people sending him the bodies? Who’s going to actually be auditing what they are doing to make sure they are doing what they say they are doing? …It doesn’t sound like anybody is auditing this.”

Resident Mr. Stowle asked when the DEEP and DPH studies would begin, how will we find out about that, how will we be notified when that is happening? What exactly are the proposed air pollution devices that will be put on both retorts? He requested more info., efficiency rates, what kinds of scrubbers what kinds of chemical treatment they use to remove mercury. He stated, “On the downside, it turns out that these retorts are regulated by performance standards, and performance standards are less strict than most standards for air pollution, which means they will more than likely just be looking at the manufacturer’s specs, and knowing what I know about the DEEP and other agencies, they typically take those at worth. What I would suggest is that if it doesn’t come from the town, that it be brought up in the permitting procedure that there be some sort of environmental impact statement done, quantifying the emissions based on varying levels of thru-put of bodies, because theoretically, if we went to a 24 hour a day operation he could be doing 16 bodies a day.” He said, “Getting to the proposed mercury field which the manufacture suggests, it sounds really not that bad when you report things in pounds per hour, normally they are done in grams or milligrams per hour, so in this case, a quick calculation works out to be 153 milligrams per hour (per retort, so you have to double that, he later stated). I got 20 years in the environmental business, that’s a lot.”  Regarding particulates, he asked Olsen “what do you mean by ‘well below’?” Stowle asked that two studies be done, “a plume dispersion study, as to where the emissions are going, including a disposition study, as to how it’s being dispersed and then where is it going.”

*****

WE NEED YOUR VOICE.

HELP PROTECT OUR AIR, WATER AND SOIL FROM TOXIC POLLUTION, and SAVE OUR HOME VALUES.

STOP THE CREMATORIUM from being approved in Bethel CT.

Attend the Planning & Zoning Meeting tomorrow, April 28, 7:00 p.m., Municipal Center, Room D, and let your voice be heard.

Also consider signing the petition to STOP THE CREMATORIUM of you haven’t already done so. See link below:

https://www.tinyurl.com/nocrematorium

More information to come!

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