Contaminated Soil: How DEEP is using marital ties to deny FOIA requests
Even though Hamden resident Jean Farricielli won her complaint at the Freedom of Information Commission (FOIC) against the Department of Energy and Environmental Protection (DEEP), she still hasn’t received the records that were ordered to be turned over. As DEEP’s judicial appeal from the FOIC’s order stretches into 2025, Farricielli finds herself frustrated and out of money to mount her own defense against a department with a $90 million budget.
According to DEEP, Farricielli should not be allowed access to records relating to environmental remediation at a site known as the Tire Pond in Hamden and North Haven because of a 2004 injunction that prohibits Joseph Farricielli, Jean’s husband, from having any “direct or indirect” communication about the site with DEEP.
State officials have previously tied Jean Farricielli to legal dealings involving the state’s forced closure of the site so environmental remediation can occur, citing her involvement in companies jointly owned with her husband that have owned or transferred land in the area.
But, in this particular legal battle, Jean paints a different picture. She is seeking records related to water quality for wells on the property she and her neighbors use, concerned about contaminated soil used to fill the Tire Pond as part of the state’s remediation project. She alleges soil was brought onto the site by contractor Loureiro Engineering Associates (LEA) after their contract had expired.
And, despite the state’s attempts to connect her to her husband in order to deny her access to records, Farricielli maintains that she is independent in this matter, which involves a piece of property her husband has no ties to.
The FOIC sided with Jean in April 2024, ordering DEEP to provide the records, but the agency appealed the decision. Now, with court dates scheduled through the end of January 2025 and undertaking a pro se defense, Farricielli finds herself stuck and concerned the court will rule against her.
FILLING THE TIRE POND
The Tire Pond’s use as a solid-waste disposal site dates back to the 1970s. Between 1978 and 1995, an estimated 15 million tires were dumped there. For nearly as long, the state of Connecticut has been seeking to shut it down and enforce environmental laws.
The Tire Pond borders the Quinnipiac River and straddles Hamden and North Haven. The Farricielli’s own or are involved in companies with ownership of several parcels of land that encompass the site—a key detail of Farricielli’s argument in her attempt to obtain records from DEEP.
The Tire Pond sits on what, in court filings, is identified as “Parcel B.” But “Parcel A,” which was also used as an open-air landfill, was also part of DEEP’s, then the Department of Environmental Protection (DEP), initial attempts to shut down the site. There are two other parcels of land that have been involved in various enforcement actions.
In February 1998, the commissioner of DEP issued a consent order to Joseph Farricielli and several other parties ordering the closure of the Tire Pond.
According to court documents, Farricielli did not comply with the consent order, leading to a 2001 court order requiring the parties to retain a consultant to close the site. A 2001 judgment against Faricielli found he obtained a permit in the 1970s from the water bureau but failed to obtain a required solid waste permit. Farricielli appealed the order to the Connecticut Supreme Court but lost on June 1, 2004.
In the 2001 consent order, DEP outlined a two-phase plan to shut down and rehabilitate the site: the first to cover the tires that had been disposed of there, and the second to create a “stable land form.”
In April 2002, as part of a memorandum of understanding with DEEP and Farricielli, contractor Gateway Terminal began to move material obtained from Boston’s “Big Dig” to the site to cover the tires. However, subsequent legal actions resulted in delays to the project. The Big Dig material was no longer available, leading to the state obtaining material from alternate sources.
By 2007, phase one of the project had been completed, but further issues prevented the site from being closed. In 2010, the state challenged Farricielli and various companies with involvement at the parcels around Tire Pond, maintaining that tenant Modern Materials, which was storing materials on part of the site that was being covered, was preventing drainage from being properly installed and had forced DEEP to alter its plan for filling the site. The company was ordered to vacate the premises so the closure plan could proceed. However, the Hartford Superior Court noted that DEEP had allowed for the submission of bids to proceed with the Tire Pond closure that would “change the original intention as to how and when to complete” the closure.
Also in 2010, as part of the project’s second phase, contaminated soil from an 11-block area in Newhall where Winchester Repeating Arms once existed was brought in, to the concern of residents. Testing of the soil from the remediation site in Newhall, where residential homes were built on top of landfill waste, showed elevated levels of lead, polycyclic aromatic hydrocarbons (PAH), and arsenic.
As the soil was moved from Newhall to the Tire Pond site, DEEP representatives explained away concerns, noting the soil was managed during transport and that the soil brought to Tire Pond only needed to be good enough for commercial, rather than residential property, as it would not be the final layer of fill covering the site.
BUT WHAT ABOUT THE WELLS?
But DEEP’s distinction between commercial and residential standards isn’t enough for Farricielli. She owns property adjacent to the site and both she and a neighbor rely on water from wells located near where the contaminated soil was brought in. Farricielli believes the Newhall soil has affected the quality of the well water.
Regarding DEEP’s impact on their water, “I can’t get a single speck of information.” Farricielli told Inside Investigator.
While she says DEEP has provided her with some reports on well water, she says they were illegible. One of her requests to the agency was for more detailed and legible reports.
“I want to see if they have done anything with wells that are there. And what the results of the material they’re bringing in are. I can’t get specification for material they’re bringing in.” Farricielli said.
This last comment refers to work that she says continues to be done at the Tire Pond, despite intentions for the site to have been closed seven years ago.
In May 2010, DEEP entered into an agreement with Loureiro Engineering Associates (LEA) to complete the second phase of closure work at the Tire Pond. Among the work LEA was to do as part of the scope of service was sourcing and transporting additional fill material. LEA estimated the work would take seven years, meaning it should have been completed in 2017.
According to court documents, after the closure was complete, DEEP intended to find a different contractor to oversee “post-closure care” of the Tire Pond, which was anticipated to potentially require more than the typical period of 30 years for solid waste facilities. Post-closure care activities were also to include groundwater well monitoring.
But, according to Farricielli, LEA has undertaken work at the Tire Pond site beyond the 2017 end date of their contract. She claims LEA continued to do work in the fall of 2022.
Farricielli has tried to obtain information about DEEP’s current actions using FOIA, but the agency denied her requests on the grounds that it would violate a 2004 enforcement action against her husband.
Farricielli submitted her first request to DEEP on December 20, 2022, and submitted additional requests on February 15, 2023; March 7, 2023; March 23, 2023; and April 19, 2023.
Among the records Farricielli sought were requests for proposal DEEP released in relation to the completion of the Tire Pond remediation project, documents related to soil deposited on the Tire Pond site, and documents related to LEA’s activities as part of the scope of services it entered into with DEEP in May 2010.
On May 5, 2023, DEEP denied the request on the grounds it was prohibited by an October 7, 2004, enforcement action against her husband, entered into as part of the agency’s protracted legal efforts to shut down the Tire Pond site.
Farricielli appealed the denial to the FOIC two weeks later.
THE FOIC REJECTS DEEP
In her complaint, Farricielli stated that the scope of service between LEA and DEEP called for the contractor to take in “millions of yards of contaminated and polluted soil, creating a 40-foot-high mountain on my husband’s land, just north of my property.”
“We do not know if any monitoring wells have been installed to monitor ground water pollution.” Farricielli continued, also noting this was why she was seeking a copy of the scope of final services between DEEP and LEA.
At a hearing in the complaint, DEEP argued that the 2004 injunction—brought against Farricielli’s husband—meant they did not have to comply with any FOIA requests from her because it prohibited Joseph Farricielli from having any “direct or indirect” communication with DEEP until the Tire Pond remediation project was complete. Fulfilling Jean Farricielli’s request, they argued, would amount to an indirect communication with Joseph Farricielli.
At a hearing in the complaint and in a post-brief complaint submitted by DEEP, the agency argued that because one of the complaints Jean Farricielli submitted was on “shared letterhead that included Mr. Farricielli’s name and contact information,” fulfilling the request would violate the injunction. They further argued that language in Jean Farricielli’s complaint to the FOIC stating “[Mr. Farricielli] was being denied access to the documents regarding the DEEP’s activities on his property, I am trying to obtain information of activity upgradient of my adjoining property” amounted to an indirect communication.
In addition, DEEP argued that because Jean Farricielli “communicated with Mr. Farricielli about her requests,” because “Mr. Farricielli was aware of the complainant’s requests,” because the request sought information about the Tire Pond, and because Jean Farricielli was “aware of the 2004 injunction,” fulfilling the request amounted to an indirect communication in violation of the injunction.
But while Jean Farricielli was seeking information related to the Tire Pond, which sits on Parcel B, the records she was seeking actually apply to land on Parcel C. And that land is not currently legally tied to Joseph Farricielli.
The land was purchased by Jean Farricielli’s family in 1955. She inherited the property prior to her marriage. Though the property has changed ownership several times, as of June 2021, it was owned by Tower Asset Management, Inc., which is owned by Jean Farricielli. Joseph Farricielli has no legal connection to it.
This was the thrust of Jean Farricielli’s argument before the FOIC. She also argued that she was not named in the enforcement action against her husband, was not bound by the 2004 injunction, and cited a Connecticut Supreme Court ruling in the protracted legal battle between DEEP and her husband that rejected the agency’s efforts to “hold her responsible for the orders entered into the Enforcement Action.”
The FOIC, which only considered whether it had the authority to dismiss the complaint based on the 2004 injunction and without a court finding that the request violated the injunction, sided with Farricielli.
The FOIC’s decision noted that DEEP turned to a Supreme Court of the United States (SCOTUS) ruling, rather than Connecticut’s FOIA law, to support their claim that the request violated the injunction. In the ruling DEEP cited, the Supreme Court found that a federal agency had properly denied a request for records under the federal Freedom of Information Act and the agency was “required to obey the injunction out of respect for judicial process” because failure to do so would require the agency to “commit contempt of court in order to release documents.”
But the FOIC found no parallel between that case and Farricielli’s request because the injunction did not bar DEEP from releasing records to her. The commission also noted that there were other circumstances, relating to a separate statute prohibiting disclosure of the requested records, that were applicable to the SCOTUS case DEEP cited that did not apply to Farricielli’s request.
The FOIC recognized the court’s authority to enforce the injunction if it found that Farricielli had violated it, but it stated that did not mean “that the Commission has the authority to dismiss this case absent a finding by the Court that the complainant’s requests violated the 2004 injunction.”
The FOIC further reasoned that if it found fulfilling Jean Farricielli’s request violated the injunction on the grounds it amounted to an indirect communication with her husband, it would “necessarily be a finding that Mr. Farricielli violated the 2004 injunction.”
“Mr. Farricielli is not a party to this case, and the respondents provided no authority for the proposition that the Commission can make such a finding without affording Mr. Farricielli with an opportunity to be heard.” the FOIC noted.
Further, the commission noted that DEEP had “ample opportunity” to seek a judicial remedy and ask the courts to find that Farricielli’s request violated the injunction.
“The Commission notes that the complainant submitted her first request to the respondents approximately 6 months before filing her complaint with the Commission, and 10 months before the first hearing in this matter. Moreover, just under 2 months after such request, the respondents filed a written objection to Mr. Farricielli’s motion to modify the portion of the 2004 Injunction prohibiting him from communicating with the respondents. Such objection made no mention of the complainant’s requests. Thus, the respondents had ample opportunity to ask the Court to find that the complainant’s requests violated the 2004 Injunction prior to the hearings in this matter.”
However, DEEP did not seek any remedy from the courts and, as the commission noted, their jurisdiction in the case was limited to determining whether the agency’s denial of Farricielli’s request violated FOIA. And the FOIC found that it did. They ordered DEEP to begin producing records on a rolling basis within 60 days of the April 24, 2024, date on which the decision was issued. DEEP was further directed to provide records, at no cost, at least every 30 days and to turn over all responsive records within six months.
But instead, the agency took a step it had previously declined to take and appealed the decision to the New Britain Superior Court.
DEEP APPEALS
Farricielli is now afraid that the court will rule against her, making it impossible for her to obtain any of the records she’s seeking, and leaving her and her neighbors in the dark about potential DEEP contamination of their water.
While she had legal representation in her complaint before the FOIC, she can’t afford a lawyer to fight DEEP’s appeal of the FOIC decision and is mounting a pro se defense.
Even if Farricielli ultimately prevails, she likely won’t see any records for some time. Currently, filings in the case have been scheduled through January 2025. Farricielli and the FOIC—which is also a defendant in the case—are scheduled to file a reply brief by January 6, 2025, and DEEP and the attorney general’s office are scheduled to file theirs by January 27, 2025.
The court also issued a stay in July, halting the FOIC’s requirement that DEEP turn records over to Farricielli. The stay, which will be in force until the court changes it, it will likely remain until final judgment in the case is reached.
In August, Farricielli submitted a motion objecting to the stay and asking the court to support the FOIC’s final decision, which reiterated her concern with the well water quality and allegations that DEEP’s handling of the closure and treatment of contaminated soil that was brought in has not been above board.
Farricielli also used the brief to address DEEP’s claims in its applications for a stay that she should not be able to receive FOIA requests, as well as to correct what she considered factual inaccuracies in not just the FOIC case, but her husband’s history with the agency, including disputing that tires had been illegally dumped at the Tire Pond at all.
She alleged that DEEP’s characterization of the site was unfounded because permits issued to Joseph Farricielli were renewed. In Farricielli’s words: “DEP permitted and oversaw the ‘environmental disaster.’”
In addition, Farricielli took issue with DEEP’s claims that fulfilling the request would result in further “harassment” of the agency and that time was not an important factor in the court’s decision to issue the stay.
“If harmful contaminants are starting to pollute and harm the drinking water of the defendant property owner’s wells, then we should not have to wait like Flint Michigan (sic) residents were subjected to.” Farricielli wrote.
On July 29, DEEP submitted a reply brief objecting to Farricielli’s motion, alleging she had failed to “address any of the concerns undergirding” the stay request.
“Instead of substantively addressing Plaintiff’s Motion for Stay, Defendant’s filing strayed into what can best be described as merits issues that are not et properly before the Court and which plainly have no relation to the Court’s ruling on the Stay. This includes Defendant’s ad hominum allegations on page 4 of her motion relating to the Commissioner’s involvement with the remediation of the Tire Pond Site and the timing of the closure of the Site.” the brief stated.
Most recently, the FOIC submitted a number of documents into the administrative record. With dates scheduled through 2025, the matter is unlikely to be resolved any time soon.
Despite not having legal representation, Farricielli told Inside Investigator that she hopes to soon meet with the FOIC lawyer for the case.
water quality concerns
As part of her argument in her brief objecting to the request for a stay of the FOIC’s order to turn over records, Farricielli noted that permits DEEP issued to Joseph Farricielli for operating the Tire Pond required the installation of wells to monitor water quality, which Jean Farricielli noted she completed quarterly for seventeen years.
Now, she notes, she has no information on the water quality.
Asked if, while she is forced to wait for the court case to play out, she’s concerned about potentially harmful water quality in her well, Farricielli told Inside Investigator she is “extremely worried.”
“I am very concerned about the wells that are on the southern piece, my industrial property. I have another neighbor who is using his well for drinking water. That is not acceptable.” Farricielli said.
She added that she feels a responsibility to make sure her neighbor is protected because the land he owns once belonged to her family and was sold off in the 1960s. “My dad built his building for him.” she added.
Farricielli has sought other avenues to obtain the information DEEP is refusing to provide her, including looking for information from the U.S. Army Corps of Engineers.
Of the few documents Farricielli has been able to obtain from DEEP, she says one of them is a report from the Army Corps of Engineers that shows no wells in the area. The closest well marked is a couple of miles away.
“They’re not even aware of what’s going on. I have contacts there, but I’m a small cog in that wheel. They are not stonewalling.” Farricielli said.
According to Farricielli, the problems with the project started when Gateway Terminal was no longer involved with the project.
“The thing that annoys me is that the pond was clean, it was being filled with clean material. They continued to test. We didn’t have any problems, and all of a sudden DEEP shut that project down, put out an RFP, did not follow their own rules for RFP, and the contract was awarded to LEA.” Farricielli said, alleging that LEA had insider connections with DEEP.
“They think they’re above everybody. They think they can just do as they damn well please and don’t have to be accountable to anybody.” Farricielli continued.
Now, as the court case drags on, Farricielli has taken to writing to legislators in an attempt to “make the powers that be aware of what’s going on.” So far, she says, she hasn’t received any response but isn’t disheartened because she says the upcoming election is likely their top focus.
One of the things Farricielli has asked of the legislators she has contacted is for them to submit a FOIA request for well water tests conducted on her and her neighbor’s properties.
Inside Investigator submitted those requests on September 10, but has not received any reply from DEEP to date.
Additionally, Inside Investigator tried to locate a copy of the contract between DEEP and LEA for their work at the Tire Pond but was unable to because the Department of Administrative Services (DAS) has purged it from its system due to its age. According to DAS, the contract expired on May 12, 2012, and, in keeping with the state’s record retention laws, both physical and electronic contracts were purged on January 3, 2023.
Inside Investigator submitted a FOIA request to DEEP on September 17 in the case they had retained a copy of the contract but had not received a response by time of publication.
This article first appeared on Connecticut Inside Investigator and is republished here under a Creative Commons license.
