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Adirondack Fish Culture Station - Interim Decision, August 19, 1999

Interim Decision, August 19, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road

Albany, New York 12233-1010 In the Matter

- of -

the Application of Superintendent of Fish Culture,
Bureau of Fisheries, NYS Department of Environmental Conservation,
for renewal of its State Pollutant Discharge Elimination System (SPDES) Permit
for the discharge originating from a primary wastewater treatment plant
in the Town of Santa Clara, Franklin County, New York
pursuant to Environmental Conservation Law (ECL) and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

DEC Project No.5-1646-00007/00001

SPDES Permit No. NY-003 5335

INTERIM DECISION

August 19, 1999

INTERIM DECISION

Introduction

This Interim Decision decides the interlocutory appeals filed by the persons below to the pre-adjudicatory hearing issues rulings of April 7, 1999 by Administrative Law Judge Robert P. O'Connor.(1) Appeals and responses to appeals were filed on May 5, 1999 and May 21, 1999, respectively.

This proceeding concerns the renewal of a SPDES permit for the Adirondack Fish Culture Station (the "hatchery") located in the Town of Santa Clara, Franklin County, New York. The hatchery performs activities related to the rearing of Atlantic salmon. The renewal is sought by the Superintendent of Fish Culture (the "Applicant") in the Department's Bureau of Fisheries, which operates the hatchery. Other participants include the Department Review Staff, who reviews an applicant's filings to ensure conformity with the statutes and regulations, the Upper Saranac Lake Association (the "Association" or "Petitioner"), the Lake Champlain Chapter of Trout Unlimited and the New York State Council of Trout Unlimited (collectively "Trout Unlimited"), the New York State Conservation Council Inc. ("NYSCC"), and Lynn Fisher Kemp.(2)

The SPDES renewal application seeks to continue an existing discharge of 3.6 million gallons per day ("mgd") of treated process wastewater into Little Clear Pond Outlet, a tributary of Upper Saranac Lake. A draft SPDES permit with revised effluent limitations has been prepared. (See, Exhibit 3). Pursuant to an August 1994 Stipulation and Settlement Agreement (the "Stipulation") in the matter of Upper Saranac Lake Association, et al v. New York State Department of Environmental Conservation,("DEC"), Index No. 93-48, a diagnostic feasibility study of Upper Saranac Lake ("Lake Study") was jointly undertaken by the Department and the Association. Monitoring and data collection for the Lake Report occurred between April 1995 and November 1996, followed thereafter by data summary, analysis, and public review. The Lake Report was released in February 1998, and provided the basis for the Department's determinations on water quality issues during the technical review of the SPDES permit renewal application.

The draft SPDES renewal permit includes, inter alia, a more accurate method for calculating the net phosphorous in wastewater discharged from the hatchery, more stringent ammonia and phosphorous limits, and implementation of the recommendations of a Best Management Practices Plan, including continued study of optimal phosphorous amounts in fish food and reduction of phosphorous leaching from fish wastes.

A legislative public hearing was held on August 20, 1998 and a pre-adjudicatory hearing issues conference was held on September 22 and 23, 1998. ALJ O'Connor found no issues warranting adjudication.

The Applicant and Department Staff both urge upholding the ALJ's rulings. The Applicant believes it addressed all concerns and regulatory criteria relating to the effluent discharged from the hatchery. The Department Staff maintains that the Applicant's proposal, as conditioned by the draft SPDES permit, protects the applicable aquatic environment. The Association urges a reversal of the ALJ's rulings and the convening of an adjudicatory hearing on matters raised in the issues conference. No appeals were filed by Trout Unlimited or NYSCC.

Arguments on Appeal

On appeal, the Association contends that: (1) the ALJ violated the 1994 Stipulation and Settlement Agreement by failing to hold an adjudicatory hearing; (2) the ALJ improperly left intact Department Staff's finding that the Department's SPDES permit renewal constituted a Type II action under SEQRA; (3) an adjudicatory hearing should have been held because the Association met its burden of proof by raising substantive and significant issues; and (4) the ALJ erred by finding that DEC's proposed permit does not violate the anti-backsliding provision of the Federal Clean Water Act and the State Water Pollution Control Law.(3)

Discussion

In Point I of the Association's brief, the Association argues that it was entitled to an adjudicatory hearing as a matter of right based on a 1994 Stipulation and Settlement Agreement (the "Agreement"). (Assoc. Br., pp 4-7). In Point III of its brief, the Association contends that notwithstanding its perceived right to an adjudicatory hearing it raised substantive and significant issues, thus warranting an adjudicatory hearing. (Assoc. Br., pp 13-22). Both Department Staff and the Applicant assert that the ALJ was correct in finding that no adjudicatory hearing was guaranteed and that a person must make a sufficient showing that an issue is substantive and significant before an adjudicatory hearing can be ordered. Moreover, Department Staff and the Applicant assert that no issues warranting an adjudicatory hearing were raised below.

Standards for Adjudicatory Hearing

Preliminarily, any discussion of whether an adjudicatory hearing is required commences with a review of Article 70 of the Environmental Conservation Law ("ECL"), which sets forth the Uniform Procedures Act ("UPA"), and the implementing regulations. The UPA establishes uniform procedures and specific time periods for the processing of permit applications and the holding of public hearings.

ECL §70-0119(1) provides, in pertinent part, that [a]fter evaluating an application for a permit and any comments of department staff, other state agencies or units of government or members of the public, the department shall ... determine whether or not to conduct a public hearing on the application .... Such determination shall be based on whether the evaluation or comments raise substantive and significant issues relating to any findings or determinations the department is required to make pursuant to this chapter, including the reasonable likelihood that a permit applied for will be denied or can be granted only with major modifications to the project because the project as proposed may not meet statutory or regulatory criteria or standards; provided, however, where any comments received from members of the public or otherwise raise substantive and significant issues relating to the application and resolution of any such issue may result in denial of the permit or the imposition of significant conditions thereon, the department shall hold a public hearing on the application. (Emphasis added).

The implementing regulation describes when an adjudicatory hearing is necessary:

The determination to hold an adjudicatory public hearing shall be based on whether the department's review raises substantive and significant issues relating to any findings or determinations the department is required to make pursuant to the Environmental Conservation Law, including the reasonable likelihood that a permit applied for will be denied or can be granted only with major modifications to the project because the project, as proposed, may not meet statutory or regulatory criteria or standards. In addition, where any comments received from members of the public or other interested parties raise substantive and significant issues relating to the application and resolution of any such issue may result in denial of the permit application, or the imposition of significant conditions thereon, the department shall hold an adjudicatory public hearing on the application.

6 NYCRR §621.7(b). (Emphasis added). An issue advanced by an individual is adjudicable only if "it is raised by a potential party and is both substantive and significant." 6 NYCRR §624.4 (c)(iii).

The terms "substantive" and "significant" are defined as follows:

(2) An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ.

(3) An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.

6 NYCRR §624.4(c)(2), (3) (Emphasis added).

In addition, where DEC and the applicant agree on the terms and conditions of the proposed permit, §624 states:

(4)In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6NYCRR §624.4(c)(4) (Emphasis added).

No Adjudicatory Hearing Was Required

In Point I of its brief, the Association contends that the Stipulation assured an adjudicatory hearing. This argument is without merit. The ALJ correctly found the Stipulation did not mandate an adjudicatory hearing and that the §624 permit hearing procedures applied. The ALJ stated in pertinent part, that:

[t]he permit hearing process consists of three distinct parts: the legislative public statement hearing, the issues conference, and then, as necessary, the adjudicatory hearing. We are currently in the post-issues conference portion of the process. At this stage of the process, pursuant to 6NYCRR §624.4(c), I must rule on issues to determine the necessity of holding an adjudicatory hearing. It would be an abrogation of my responsibilities as an ALJ, as well as being contrary to the applicable regulations, to grant a blanket authorization to proceed to an adjudicatory hearing without an assessment of the merits of the proposed issues. (Rulings, p. 9).

As the ALJ indicated, there is a distinct legal process ALJs are obligated to follow in determining whether adjudication is necessary; no permissible basis exists, in regulation or statute, which allows the ALJ to bypass §624 and order an adjudicatory hearing. ECL §70-0119(1), 6NYCRR §621.7 and §624.4(c) list the explicit criteria that must be satisfied before an ALJ can require an adjudicatory hearing. Given this comprehensive statutory and regulatory structure governing the holding of adjudicatory hearings, and numerous Departmental decisions confirming the integrity of this process(4), the ALJ properly concluded that the Association had no guarantee of or automatic right to an adjudicatory hearing.

The Association's reliance on ¶18 of the Stipulation is misplaced. The relevant portion of that paragraph states:

"18. After completion of the Study Report, DEC will undertake permit renewal proceedings pursuant to 6NYCRR Part 621 and shall process the application for renewal as a "major project", and afford petitioners an adjudicatory hearing and party status pursuant to 6NYCRR §624." (emphasis added).

This paragraph clearly conditions petitioners' purported right to receive an adjudicatory hearing and party status on compliance with 6NYCRR §624. Webster's New Collegiate Dictionary states that "pursuant to" means "in conformance to; [and] according to." Hence, the plain meaning of this phrase is that a hearing would be held according to 6NYCRR §624, which clearly identifies the threshold requirements to be met before an adjudicatory hearing can occur. The Association's interpretation of the phrase not only renders meaningless the "pursuant to" language, but departs from the well established regulatory process by which the need for an administrative adjudication is determined. In sum, the ALJ was acting well within his province to refrain from ordering an adjudicatory hearing before evaluating whether adjudicable issues existed.

The Association's reliance on prior affidavits is unnecessary where, as here, the Stipulation language at issue is complete, clear and unambiguous on its face. Payne v. Enable Software, Inc., 229 AD2d 880 (3d Dept 1996); Belgrave Owners, Inc. v. OR Holding Corp., 233 AD2d 352, 354 (2d Dept. 1996). Furthermore, a merger clause at ¶23 of the Stipulation prohibits reliance on underlying documents for clarification. (See, Stipulation, ¶23).

At any rate, even assuming such statements are relevant, the affidavit of Mr. Bruening referred to by the Association clearly states that "the ALJ will outline the conduct of the hearing and determine what issues will be subject to adjudication." [emphasis added]. (Exhibit 12, ¶28). Thus, it is plainly evident that the ALJ would decide what issues, if any, were to be adjudicated. Mr. Bruening's statement is entirely consistent with the Department's longstanding practice to require the ALJ to sift through the record and decide what issues should be adjudicated.

Additionally, the Association's claim that the ALJ's interpretation of paragraph 18 renders the Agreement void for lack of consideration is without merit. The USLA negotiated and received an obvious benefit from the Stipulation as evidenced by DEC's undertaking of the Lake Study. See, Weiner v. McGraw-Hill, 57 NY2d 458 (1982); Matter of Ball (SFX Broadcasting, Inc.), 236 AD2d 158 (3d Dept 1997).

No Adjudicable Issues Were Raised

In Point III of its brief, the Association argues that it raised substantive and significant issues warranting adjudication. However, a review of the record, particularly the conclusions of the Lake Study and the more stringent terms and conditions of the proposed SPDES renewal, does not support this assertion.

Prior Department decisions clearly establish that the Department conducts an adjudicatory hearing only when issues are deemed to be both substantive and significant. Specifically, adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990. The task of sifting through the offers of proof and responses is the responsibility of the ALJ. See, 6NYCRR §624.4(c)(5). Where the question is one of whether a factual dispute requires adjudication, substantial deference is given to the ALJ's judgment. In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992.

Holding an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. See, In the Matter of AZKO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996. While the intervenor's offer of proof at the issues conference need not necessarily be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See, id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." In the Matter of Sithe/ Independence Power Partners, Interim Decision of the Commissioner, November 9, 1992.

Moreover, where DEC staff and the applicant are not in disagreement over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by DEC staff are prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, In the Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992; see also ECL §70-0119(1) and 6 NYCRR §624.4(c)(4). Thus, where DEC Staff has engaged in extensive review and determined that issues do not exist and that a permit should be issued, the person seeking the adjudicatory hearing shoulders the burden of demonstrating that such issues are present. See, Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256, 260-261 (3d Dept. 1988), (court upheld the burden imposed on potential interveners and further upheld the Commissioner's determination to exclude certain issues from adjudication).

In the instant case, Department Staff and the Applicant agreed on the terms of the proposed SPDES permit renewal. The pertinent standard of proof was applied by the ALJ:

6NYCRR §624.4(c)(4) specifically provides that in situations where the Department Staff has reviewed an application and finds that a component of the Applicant's project as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant. Such is the case in the instant matter, with the Department's Review Staff having determined that there are no statutory or regulatory prohibitions or restrictions which would preclude the renewal of the SPDES permit for the fish hatchery. It is the intervenors', in this case the USLA's, burden to demonstrate that the issues they are raising warrant adjudication. (Rulings, p. 6,7).

Agreement to the Lake Study

Here, any discussion of whether the Association met its burden of raising substantive and significant issue begins with the Stipulation and the agreements contained therein. Pursuant to the Stipulation, the Department and the Association agreed to prepare a two year diagnostic feasibility study to, inter alia, assess "the impact of the Hatchery on Lake water quality, and to determine appropriate SPDES discharge limits". (Exhibit 10A, p.4). As a result of the agreement to undertake the Lake Study, a Supreme Court proceeding commenced by various persons including the Association challenging a previous SPDES permit renewal for the hatchery was dismissed. (See id., p.5). Significantly, the Stipulation allowed either party to separately state their conclusions if "they cannot agree on any single conclusion based upon the data collected in [the] Study." (Id., pp.7-8).

As intended, the permit renewal was prepared in accordance with the findings of the Lake Study, which was co-authored by the Adirondack Aquatic Institute, a consultant for the Association. (Exhibit 10G). The ALJ's reliance on the Lake Report was clearly appropriate. The Association agreed to the Lake Report and must abide by its findings and conclusions. Its complaints that the affidavits and submissions of its experts prepared after issuance of the Lake Report were ignored is not only untrue, but ring particularly hollow given the Stipulation, which states in pertinent part:

Petitioners and DEC agree that a Diagnostic-Feasibility Study prepared as a cooperative effort between them is in the best interest of furthering the effort to protect the water quality of Upper Saranac Lake and for determining the impact of the Hatchery on Lake water quality, and to determine appropriate SPDES discharge limits. (Exhibit 10A, p. 4).

Additionally, the "Fact Sheet Narrative" for the permit renewal acknowledges the purpose of the Study and its importance in the drafting of the permit renewal. The narrative states that "in accordance with the Stipulation, NYSDEC has now undertaken full technical review of the SPDES permit ... using the study as a basis for its determinations regarding water quality considerations for the proposed permit." (Exhibit 3, p. 2; Affidavit of Dominic Fontana, ¶6, 11/19/98). Moreover, as the ALJ noted, the Association via its consultant never challenged or disagreed with the conclusions in the Lake Report despite being afforded that right in the Stipulation. (Exhibit 10A, pp. 7-8). In sum, the Association cannot distance itself from the conclusions of a study it agreed to and co-authored simply because the findings are not to its liking.

Deference To Agency Determinations Which Are Rationally Based and Within The Agency's Area Of Expertise

It is well settled that the Department, as a State agency, has broad power to construe statutes and regulations it administers and the Department's construction of such statutes and regulations should be upheld unless it is unreasonable or irrational. New York Public Interest Research Group, Inc. v. Williams, 127 AD2d 512 (1st Dept. 1987); Matter of Memorial Hospital v. Axelrod, 68 NY2d 958, 960 (1986) (where an agency's interpretation of a statute is not irrational, unreasonable or inconsistent with the statutory purpose it is entitled to deference by reviewing courts). Furthermore, where the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference. Flacke v. Onondaga Landfill System, 69 NY2d 355, 362-363 (1987); Seymour v. New York State Department of Environmental Conservation, 184 AD2d 101, 104-105 (3d Dept. 1992). The focal inquiry is whether the determination at issue has a "rational basis". Matter of County of Monroe v. Kaladjian, 83 NY2d 185, 189 (1994); Matter of Pell v. Board of Educ., 34 NY2d 222, 231 (1974).

Phosphorus Discharge From The Hatchery

The Association's principal argument is that it raised substantive and significant issues concerning the quantity of phosphorous in effluent discharges from the hatchery. Much of the Association's complaint arises from discharges that occurred nearly a decade ago. However, changes in operating practices in the past several years have sharply reduced the phosphorous level in hatchery effluent discharges, and the proposed SPDES permit renewal contains conditions, monitoring requirements and effluent limitations that properly account for phosphorous loadings to the lake. In fact, a comparison between the current and proposed SPDES permit limits and monitoring requirements demonstrate that the proposed permit is generally more stringent. (Exhibit 20).

The Lake Study states that the ambient epilimnetic phosphorous level of the lake is 13.2 g/l, and that the contribution from the hatchery is not substantial:

Overall, the hatchery is a relatively small contributor to the phosphorous budget of the lake, contributing between 3 and 8 percent, depending on seasonality and whether the entire lake, or just the north basin is considered.

The Adirondack Fish Hatchery represents about 3 percent of the annual phosphorous load to Upper Saranac Lake, and about 7 percent of the annual phosphorous loading to the north basin. On a seasonal basis (May through September), the hatchery contributes 8 percent of the phosphorous load to the north basin. (Lake Study, pp. 218, 237).

The Lake Report states further:

More recent DMR data from 1997 has shown that the annual phosphorous loading from the hatchery has dropped about 46 percent from 1994 to 1996 and another 17 percent from 1996 to 1997. The present phosphorous loading from the hatchery is estimated at 49Kg/yr, a cumulative result of efforts to reduce phosphorous discharges at the hatchery. (Lake Study, p. 208).

Additionally, the Lake Report makes patently clear that the hatchery is one of several sources of the phosphorous in Upper Saranac Lake, and is one of the smallest contributors to the Lake's annual phosphorous budget. (Lake Study, pp. 210-213).

The report also states that Little Clear Pond Outlet, from which the hatchery effluent enters the Lake, did not contain the highest concentration of phosphorous of the 7 tributaries studied. Two other tributaries had higher concentrations of phosphorous. In addition, the total average phosphorous concentration in groundwater (25.8g/l) in wells around the lake was nearly the same as the concentration in Little Clear Pond Outlet (15-30g/l). As a result NYSDEC has determined that the station does not cause or contribute to a water quality violation in the Lake. (Exhibit 3, p.2).

(See also, Lake Report, pp. 217-218 ["the major components of phosphorous loading to the lake are tributaries, permitted discharges and on-site systems, and direct atmospheric deposition onto the lake surface."]).

Additionally, numerous steps have been taken to reduce the phosphorous including using fish food with less phosphorous, hand feeding instead of automatic feeders, decreased water use and change in facility cleaning practices. (See, Affidavit of Edward Grant, ¶13-21, 11/19/98; Affidavit of H. George Ketola, ¶4, 11/12/98). The hatchery is also operating pursuant to a Best Management Practices Plan developed to reduce potential sources of nutrients. (See, Exhibit 3, p. 2; Affidavit of Edward Grant; Applicant submission, Exhibit A, 12/14/98). In fact, the Association's expert stated that "the recent considerable improvement in the Lake's trophic state in the 1990's was also coincident with a reduction in nutrient input from the Hatchery." (Horne Affidavit, 12/98). (See also, Exhibit 19, "Assessing Impacts of Past Human Activity on the Water Quality of Upper Saranac Lake", p. 182; Exhibit 21, Chart showing declines of monthly phosphorous discharge from hatchery).

Given the ample support in the record indicating that phosphorous from the hatchery was not adversely affecting water quality, and that the phosphorous in the lake had multiple and more prolific sources, and that the phosphorous discharges from the hatchery have declined over time, the ALJ's consideration and characterization of the hatchery discharge was appropriate.

Use of the Department's Guidance Value for Phosphorous was Appropriate

The Association also contends that the ALJ's reliance on the Department's guidance value for phosphorous was improper because of historic discharges from the hatchery. I disagree.

ECL 17-0101 states that the public policy of the State is to "maintain reasonable standards of purity of the water of the State." ECL 17-0801 implements the SPDES program and recognizes the Department's authority to rely on regulations, guidance and standards to set effluent limits in SPDES permits. 6 NYCRR §703.2 establishes a narrative water quality standard for phosphorous, and the Department established in its Division of Water Technical and Operational Guidance Series ["TOGS"] 1.1.1 a guidance value that would satisfy this narrative standard. The resulting phosphorous guidance value of 20g/l was established by the Department for all Class A, A-S, AA, AA-S or B ponded waters (with some exceptions) to protect State waters for their best classified use. (Ruling, p.20; Exhibit 15, TOGS 1.1.1, 10/22/93). There is no basis to infer that the Department's reliance on this guidance value was unlawful or inappropriate.

Furthermore, the Lake Study does not draw a nexus between the water quality of the Lake and the hatchery. More pointedly, there is no scientific evidence that the phosphorous concentrations present are adversely affecting the water quality, or that the Lake is water quality limited due to phosphorous. (Affidavit of Dominic Fontana, ¶6 and 7 ["To date there is no scientific evidence that Little Clear Pond Outlet and Upper Saranac Lake are adversely impacted by the hatchery's discharges"; ¶9 ["The lake report did not identify the lake or its basin as being water quality limited due to the measured phosphorous concentrations"]). With the average phosphorous concentration for the Lake ranging from 12g/l to 13.6g/l, which is well below the Department's established standard of 20g/l, and the hatchery phosphorous discharge representing only 3 percent of the annual phosphorous load, application of the 20g/l water quality guidance value was appropriate. As the ALJ succinctly stated:

The Lake Report concluded that Upper Saranac Lake is a mesotrophic body of water, which experiences some water quality problems, similar to other lakes in the region. [Lake Study, p. 238]. The range of total phosphorus in a mesotrophic lake is 10-26 g/l. The Lake Report found that the north basin of Upper Saranac Lake had an average epilimnetic total phosphorus concentration of 13.6 g/l, and for phosphorus, all lake stations were in the mesotrophic range, close to the mesotrophic-oligotrophic border, during 1995 and 1996. The phosphorus loading to the north basin of Upper Saranac Lake from the hatchery discharges decreased in 1997 from the 1996 levels and again decreased in 1998 from the 1997 levels. Therefore, the lessened contribution of phosphorus from the hatchery to the Lake's north basin should cause a corresponding decrease in the total net phosphorus concentration in the north basin (and entire Lake). The total net phosphorus concentration is unlikely to even approach the guidance level of 20 g/l, and all other factors remaining relatively the same, the trophic status of the Lake should revert towards oligotrophy, at least closer to the mesotrophic-oligotrophic border at 10 g/l. (Ruling, p. 21).

Sampling and Monitoring, and Other Issues

The sampling schedule as characterized by the Association is also not an issue for adjudication. Monitoring requirements in the proposed renewal permit contemplate one 24 hour composite sample per week for phosphorous and one 24 hour composite sample per month for a majority of the wastewater effluent ingredients (BOD 5-day, TSS, settleable solids, and ammonia). This means that for phosphorous, once a week at specified locations, hourly samples are taken for a continuous 24 hour period. (Exhibit 3). In contrast, the existing permit employs grab sampling, which consists of one single sample taken randomly or at a prescribed time at specified locations, once per week for phosphorous and twice per month for other effluents. (Exhibit 10E). The change in sampling type from grab to 24 hour was "in accordance with Department policy" (Exhibit 3, page 2), and allowable under EPA and Standard Methods sampling protocols. (Affidavit of Dominic Fontana, ¶8). The change in sampling frequency was "based on a review of the last 8 years of effluent monitoring data that showed no variations in pollutant levels for these parameters and that concentrations of these pollutants were well below permit limits." (Id.). Moreover, the sampling type for phosphorous is more stringent, and as the ALJ noted, will "provide a much more representative sample of the effluent characteristics." (Ruling, p. 16).

Similarly, the Association's objection to eliminating the seasonal 30 day rolling average effluent limitations for the draft renewal SPDES permit does not raise an issue foradjudication.(5) As the ALJ noted, the real question is whether the draft permit is any less stringent as a result of this omission. (Ruling, p. 18). The draft permit's proposed phosphorous limit of 0.45 lbs/day based on a 12 month rolling average effluent limitation is more stringent than the existing limit of 0.5 lbs/day; the new limit results in 10 percent less phosphorous than the existing limit. (Exhibit 3, p. 2; Affidavit of Dominic Fontana, ¶7).

Additionally, there is no basis, as the Association contends, to impose a water quality effluent limitation for phosphorous. The Lake Study identifies the phosphorous level in Upper Saranac Lake at 12.0-13.6g/l. (Exhibit 10g, p. 236). The guidance value, as previously discussed, is 20g/l, well above the level in the Lake. As Mr. Fontana stated:

Based on the significant quantity of data collected during the two year lake study and the data recently collected by the Department for a few selected parameters of concern for Little Clear Pond Outlet, there is no scientific evidence that the pollutants discharged by the hatchery have caused any adverse impacts on the receiving waters. Therefore, the existing limits and the more stringent draft limits are clearly sufficient to protect the quality of the receiving waters of both Little Clear Pond Outlet and Upper Saranac Lake. (¶7).

Based on the report's information and other pertinent information, the permit writers determined that the application of technology based effluent limitations was appropriate for establishing phosphorous effluent concentrations for the hatchery. (¶9).

In other words, with the Lake Study's findings that the hatchery contributed only 3 percent of the Lake's annual phosphorous load, and that other sources contributed far greater amounts of phosphorous (six tributaries, 55% [includes the 3% from the hatchery]; atmospheric deposition, 14%; wastewater systems, 14%; release from bottom sediments, 7%) the Department rationally determined that the hatchery did not cause or contribute to a water quality violation in the Lake. Hence, technology-based limitations, developed in accordance with the procedures set forth in TOGS 1.2.1, were determined by the Department to be sufficiently protective of water quality, and were set for phosphorous in the renewed permit.

As for the Association's claim that the Applicant's proposal to submit discharge monitoring reports ("DMRs") for the hatchery every 60 days rather than every 28 days constitutes an adjudicable issue, this argument is also without merit. 6 NYCRR Part 756.3 requires that monitoring results obtained by a SPDES permittee be reported at the end of each month "unless otherwise specified by the department." 6 NYCRR Part 757.1(d) provides that the commissioner may upon the request of the applicant "revise or modify a schedule of compliance in an issued SPDES permit if he determines good cause exists for such revision." Here, the record indicates that while the Applicant's staff preferred to use the State Department of Health's Wadsworth Laboratory, the lab's workload prevented it from consistently meeting the 28 day reporting deadline. The Applicant availed itself of Part 757.1(d) and obtained a longer period within which to submit the monitoring reports for the hatchery.

Under the circumstances, the ALJ properly found the essentially 30 day difference in submission of the DMRs did not rise to the level of an adjudicable issue. (Ruling, pp. 17-18). The two month reporting period was neither unreasonable nor a special accommodation made to a State facility; federal regulations allow reporting periods of up to 12 months as deemed necessary (see, 40 C.F.R. §122.44), and nearly 20 other permitted dischargers have reporting dates which exceed one month. (Affidavit of Dominic Fontana, ¶12).

Finally, with respect to the Association's frequent complaint in its brief that the December 1998 affidavits from its consultants were disregarded, it bears noting that these affidavits consist, in large part, of disagreements with the findings of the Lake Study, which the Association had agreed would serve as the basis for the parameters of the SPDES permit renewal, or involve objections to hatchery construction, operations or conditions that occurred approximately ten years ago. Additionally, these affidavits include assertions that are either speculative and void of meaningful scientific support, or wholly indifferent to the conclusions of the Lake Study. As noted earlier, the purpose of adjudication is not to provide a forum for an academic debate, particularly where the Applicant and Department Staff agree on the terms of the proposed permit renewal, thus placing on the Association the burden of demonstrating that such substantive and significant issues are present. Here, the Association has not met that burden.

The Proposed SPDES Permit Renewal Was A Type II Action Under SEQRA

In Point II of its brief, the Association argues that the ALJ erred in upholding Department Staff's determination that this project constitutes a Type II action under 6NYCRR §617. (Assoc. Br., pp. 8-13). Specifically, the Association contends that the historic discharges continue to adversely impact the receiving water, that the ALJ established an equivalency standard that thwarts the intent of SEQR, and that phosphorus limits will not change in the draft permit. Upon reviewing the ALJ's analyses and findings, I concur with his conclusions and reject the Association's arguments.

The State Environmental Quality Review Act (SEQRA) mandates the preparation of an environmental impact statement (EIS) when a proposed action "may have a significant effect on the environment." ECL §8-0109(2). Certain actions known as "Type II" actions, however, are determined not to have a significant SEQRA impact on the environment and are excluded from environmental review under SEQRA. See, 6NYCRR §617.5. Among the recognized "Type II" actions are "license, lease and permit renewals,... where there will be no material change in permit conditions or the scope of permitted activities." 6NYCRR §617.5(c)(26).

What constitutes a "material change" in permit conditions, however, requires evaluation of factual data within DEC's expertise and DEC's interpretation is thus to be given deference unless unreasonable. Matter of Public Interest Research Group v. Town of Islip, 71 NY2d 292, 303 (1988). Permit renewals that contain no material changes in permit conditions or scope of allowed activities are properly construed as Type II actions. Scenic Hudson Inc. v. Jorling, 183 AD2d 258 (3d Dept 1992). The ALJ's standard for reviewing a staff determination as to whether an EIS is required is as follows:

(a) As part of the issues ruling, the ALJ may review a determination by staff to not require the preparation of an environmental impact statement. Where the ALJ finds that the determination was irrational or otherwise affected by an error of law, the determination must be remanded to staff with instructions for a redetermination. In all other cases, the ALJ will not disturb the staff's determination. 6NYCRR 624.4(c)(6)(i)(a).

In the instant case, the ALJ held that the Department Staff's Type II SEQRA designation was neither irrational nor otherwise affected by an error of law. (Rulings, p.12). His review found the action consistent with the Type II list as a permit renewal "where there will be no material change in permit conditions". §617.5(c)(26). I agree.

The ALJ's ruling reflects a careful review of the relevant issues. (Ruling, pp. 9-14). The ALJ appropriately focused on the "permit renewal" context of the proceeding, a qualification agreed to by the Association (See, Agreement, ¶18), and the corresponding inquiry, namely whether the proposed SPDES permit renewal involved any "material change" in permit conditions or the scope of permitted activities:

The current proposed renewal SPDES permit for the hatchery, i.e. -- the permit which is the subject of this proceeding, incorporates equivalent limits to the 1992 permit for total flow, BOD, total suspended solids, settleable solids, dissolved oxygen and pH, while more stringent limits are imposed for ammonia and phosphorous.

The proposed SPDES permit renewal does not involve any material change in the scope of the permitted activities, as the scope of the activities performed at the hatchery, i.e. -- fish culture activities relating to the rearing of Atlantic salmon, were similar before and after the reconstruction of the facility, and such activities remain the same at present . The proposed renewal does not involve any material change in permit conditions, i.e. -- the conditions, specifically the effluent limitations which the Applicant has to meet at the discharge outfall, in the draft SPDES permit are either the same or more stringent than in the previous permits. (Ruling p. 13).

A review of the record supports the ALJ's findings. The permitted flow from the facility remains the same, and the effluent limits for all monitored parameters either remain the same, or in the case of ammonia and phosphorous, are more stringent. (Exhibits 3, 10E and 20). As noted earlier, the monitoring and sampling requirements are more representative of the effluent characteristics. In sum, the ALJ properly refrained from disturbing Department Staff's determination that the permit renewal did not require an EIS.

The Association's argument that the ALJ advanced a de facto "equivalency" analysis in place of an EIS is inaccurate and misleading. In his ruling, after completing an extensive Type I vs. II discussion, the ALJ candidly observed that "the attention and technical analysis given this matter by the Applicant and Review Staff, based on the record before me, is at least equivalent to what would normally be accorded a project which did require an [EIS]." (Ruling, p.14). However, in its brief, the Association quotes the ALJ as stating that the review conducted was "...at least equivalent to what would normally be accorded a project which did not require an environmental impact statement [emphasis added]." (Association Br., p. 11). The Association's insertion of the word 'not' into the ALJ's statement is careless; only in the Association's brief has the Department created some "equivalency" SEQRA review standard. In any event, I concur with the ALJ that the analysis completed by the Applicant and Department Staff would be at least equivalent to what would normally be accorded a project which did require an EIS.

It also bears noting that the ALJ properly rejected the Association's attempt to reopen the Department Staff's 1987 SEQRA negative declaration determination that the reconstruction of the hatchery would "not have a significant effect on the environment." The Association's current objections to, inter alia, the late 1980's reconstruction and upgrades to the hatchery and historic discharges are irrelevant to the instant issue as to whether the proposed SPDES permit renewal requires an EIS. Moreover, neither the Association nor any other person challenged the 1987 determination at the time it was made, and are now time barred from making such a challenge. Matter of Young v. Board of Trustees of the Village of Blasdell, 89 NY2d 846 (1996).

The Proposed SPDES Permit Renewal Does Not Violate Anti-backsliding Provisions Under Federal and State Law

In Point IV of its brief, the Association contends that the proposed SPDES renewal permit violates the anti-backsliding provisions of the Federal Clean Water Act, 33 U.S.C. §1342(o),(6) and ECL §17-0809 by changing the 30 day seasonal rolling average effluent limitation for phosphorous to a 12 month rolling average effluent limitation. (Association's Br., pp. 22-23).

ECL §17-0809(3) states, in part, as follows:

"Notwithstanding any other provision of this article, when effluent limitations are established they must be at least as stringent as the effluent limitations previously required unless the Commissioner determines, through regulation, that an exception is warranted..."

The term effluent limitation used in ECL §17-0809(3) is defined in ECL §17-0105(15) as follows:

"...any restriction on quantities, quality, rates or concentrations of chemical, physical, biological, and other constituents of effluents which are discharged into or allowed to run from an outlet or point source into waters of the state promulgated by the federal government."

Notably, ECL §17-0105(15) does not describe effluent limitations in terms of the method that a rolling average is calculated. It only describes effluent limits in terms of "quantity, quality, rate and concentration."

In the instant case, because the draft SPDES permit's phosphorus effluent limitations on a 12-month rolling average have been decreased from .5 lbs per day to .45 lbs per day, and because the majority of the terms and conditions of the proposed SPDES renewal are more stringent than those in the existing permit (see, Exhibit 20), the proposed SPDES permit cannot reasonably be construed as violating the anti-backsliding provision of ECL §17-0809(3). Thus, the Association has failed to raise an adjudicable issue concerning alleged anti-backsliding.

Conclusion

For the reasons stated above, I concur with the ALJ's issues rulings of April 7, 1999 and find that there are no issues to be adjudicated. I remand this matter to Department Staff for issuance of the proposed SPDES permit renewal in accordance with this decision.

For the New York State Department
of Environmental Conservation

/s/

By: Carl Johnson
Deputy Commissioner

Dated: Albany, New York
August 19, 1999

  1. References to the ALJ's April 7, 1999 Ruling are delineated as (Ruling, p.). References to "Exhibits" refers to exhibits identified by the ALJ.
  2. The Association is the principal intervenor in this case. Trout Unlimited submitted papers in support of the Bureau of Fisheries' application for renewal of the hatchery's SPDES permit. (Exhibit 6). The New York State Conservation Council also supports renewal of the permit. (Exhibit 7). Ms. Kemp did not file an appeal but the appeal filed by the Association will presume to include Ms. Kemp insofar as she was represented at the issues conference by counsel who also represented the Association. (Exhibit 9).
  3. Upon my review of the briefs, it is appropriate to consider together the Association's arguments I and III as they are central to the substantive and significant test used to determine whether adjudicable issues exist. Arguments II and IV are addressed thereafter.
  4. See, e.g., In the Matter of Halfmoon Improvement Area No. 1, Decision of the Commissioner, April 2, 1982.
  5. The 30 day rolling average is calculated by averaging the reporting period's phosphorous quantity discharged in lbs/day with the previous 3 weeks phosphorous quantity discharged in lbs/day. The 12 month rolling average is calculated by averaging the reporting period's phosphorous quantity discharged in lbs/day with the previous 11 months quantity discharged.
  6. 33 U.S.C. §1342(o) provides, in pertinent part, that "a permit may not be renewed, reissued, or modified...to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit."
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