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Adirondack Fish Culture Station - Ruling, April 7, 1999

Ruling, April 7, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of the SUPERINTENDENT OF FISH CULTURE Bureau of Fisheries,
New York State Department of Environmental Conservation,
Room 552, 50 Wolf Road, Albany, New York 12233-4753

for renewal of its State Pollutant Discharge Elimination System (SPDES) Permit for the discharge originating from a primary wastewater treatment plant at the Adirondack Fish Culture Station located on Fish Hatchery Road in the Town of Santa Clara, Franklin County, New York pursuant to the Environmental Conservation Law ("ECL") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")

RULINGS OF THE ADMINISTRATIVE LAW JUDGE
ON ISSUES AND PARTY STATUS

DEC Project No.

5-1646-00007/00001

SPDES Permit No.

NY-003 5335

Table of Contents

Summary of Rulings

Project Description

State Environmental Quality Review (SEQRA) Status

Applicable Statutes and Regulations

Public Statement Hearing and Comment Period

Issues Conference

Summary Positions of the Participants

- The Applicant

- The Review Staff

- The Upper Saranac Lake Association

- Trout Unlimited

- New York State Conservation Council, Inc.

- Lynn Fisher Kemp

The Standards for Determining Adjudicable Issues

The Issues Proposed for Adjudication

Automatic Party Status

Commitments Made in Court

SEQRA Determination of Significance

Proposed Action - Type II vs. Type I

Anti-Backsliding Provisions

Sampling and Monitoring

Discharge Monitoring Reports

Elimination of 30 Day Rolling Average for Phosphorus

Appropriateness of DEC Guidance Value for Phosphorus

Effluent Limits - Water Quality Based and Technology Based

Alternative Technologies

Summary Discussion

Ruling on Party Status

Appeals

Summary of Rulings

Administrative Law Judge ("ALJ") Robert P. O'Connor has determined that the principal Intervenor in this matter, namely, the Upper Saranac Lake Association ("USLA"), has failed to raise any issues with regard to the instant application for renewal of the State Pollutant Discharge Elimination System ("SPDES") permit for the Adirondack Fish Culture Station ("fish hatchery") which rise to the substantive and significant level such as to warrant adjudication in any further proceedings before this Department. In its petition and following briefs, USLA has focused on the discharge of the element phosphorus in the effluent from the hatchery, specifically keying on events of a historical nature which occurred nearly a decade ago, when more than five to six times as much phosphorus was discharged from the hatchery than is now the case. USLA has failed to account for the changes in operating practices at the hatchery, i.e. -- hand feeding rather than automated feeding, more frequent cleaning of sludge from the wastewater settling basins, more precise blending of phosphorus-rich influent water and use of a low phosphorus fish food diet, while experimenting with a feed containing one of the lowest levels of phosphorus available anywhere. These changes have been instrumental in reducing net phosphorus levels in the hatchery effluent to an average of less than one-quarter pound per day for the period January through November 1998.

The arguments which USLA has presented and the impacts which it predicts will occur from the renewal of the facility's SPDES permit are specious, speculative and have no basis in fact or law. There are no adjudicable issues in this matter, and therefore, there is no cause for an adjudicatory hearing. Consequently, the party status requests of all the issues conference participants are denied. The subject SPDES permit renewal application is remanded to the Department's Region 5 Environmental Permits Staff to complete the SEQRA process as necessary and issue the requested renewal SPDES permit for the hatchery.

Project Description

The Department's Bureau of Fisheries has applied for renewal of its SPDES permit for the discharge originating from a primary wastewater treatment plant at the Adirondack Fish Culture Station located on Fish Hatchery Road in the Town of Santa Clara, Franklin County, New York. The 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 Class AA(T) waterbody. The Department's Division of Water has made a tentative determination to approve this renewal application and has prepared a draft SPDES permit with revised effluent limitations and conditions.

In accordance with the terms of the 1994 Stipulation and Settlement Agreement in the matter of Upper Saranac Lake Association, et al. v. New York State Department of Environmental Conservation ("NYSDEC"), Index No. 93-48, a diagnostic feasibility study of

Upper Saranac Lake was jointly undertaken by the two parties and completed in February 1998.(1) The "Lake Report" has been used as the basis for DEC's determinations regarding water quality considerations during the full technical review of the SPDES permit renewal application. Results of the study and a waste assimilative capacity analysis conducted by the Department's Review Staff as part of their technical review support the use of technology-based limits rather than water quality-based limitations for the discharge of phosphorus.

The proposed draft renewal SPDES permit now includes a method for the calculation of net phosphorus in wastewater discharged from the hatchery which more accurately reflects the contribution of naturally occurring phosphorus in the inflow from Little Clear Pond, the principal water source for the hatchery. A more stringent ammonia limit is included in the draft permit due to the adoption of a more stringent water quality standard. The draft permit also requires implementation of the recommendations of the Best Management Practices plan, including continued study of optimal phosphorus amounts in fish food and reduction of phosphorus leaching from fish waste. Submittal of a summary of phosphorus reduction efforts is required once per year as a permit condition. Sampling types have been revised from grab to 24-hour composite samples for five-day biochemical oxygen demand (BOD5), total suspended solids (TSS), ammonia and phosphorus in accordance with Department policy.

State Environmental Quality Review (SEQRA) Status

Pursuant to the State Environmental Quality Review Act ("SEQRA"), ECL Article 8, and 6 NYCRR Part 617, the Department's Review Staff, as Lead Agency, determined on July 6, 1998 that the proposed Project is not subject to SEQR review because it is a Type II action.

Applicable Statutes and Regulations

The application was filed and is being processed pursuant to Environmental Conservation Law ("ECL") Article 3, Title 3 (Department of Environmental Conservation, General Functions, Powers, Duties and Jurisdiction); Article 8 (Environmental Quality Review); Article 17 (Water Pollution Control); Article 70 (Uniform Procedures); and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 (State Environmental Quality Review); Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 750 et seq. (State Pollutant Discharge Elimination System).

Public Statement Hearing and Comment Period

Following publication of the required hearing notice in the Adirondack Daily Enterprise and the Plattsburgh Press-Republican on July 17 and 20, 1998, respectively, and in the Department's Environmental Notice Bulletin on July 29, 1998, a legislative public statement hearing to receive comments on the proposed Project was held before Administrative Law Judge ("ALJ") Robert P. O'Connor of the Department's Office of Hearings and Mediation Services in the Main Conference Room at the Department's Region 5 Headquarters, NYS Route 86, Ray Brook, New York at 7:00 P.M. on Thursday, August 20, 1998. Approximately 48 people attended the hearing. Sixteen persons made statements for the hearing record.

The public comment period remained open until August 31, 1998. A total of 16 written comments were received during the comment period. Several of the comments were in favor of the proposed Project, while a majority of the comments indicated that the proposed Project should be approved only with the imposition of more stringent conditions than suggested in the draft permit.

Issues Conference

A pre-adjudicatory hearing issues conference was held in the Department's Region 5 Headquarters Building on Tuesday and Wednesday, September 22 and 23, 1998 to consider all timely filed applications to participate in any adjudicatory hearing which might be held in this matter. During the issues conference session on September 23, 1998, a recess was taken at midday to allow all the active participants to jointly visit the Adirondack Fish Culture Station in Santa Clara, New York, to walk the site, to look at the receiving waters of Little Clear Pond Outlet, to observe first-hand the removal of sludge from the settling basins in the primary wastewater treatment facility, to tour the fish rearing facilities, and to observe the "plumbing" for the facility, i.e. -- the waters of Little Clear Pond, the influent piping, the mixing and blending valve system, the water in the fish rearing tanks, the wastewater treatment facilities, and the effluent discharge to Little Clear Pond Outlet.

At the issues conference, the "Applicant," i.e. -- the Department's Superintendent of Fish Culture in the Bureau of Fisheries, was represented by Benjamin A. Conlon, Esq., of the Department's Division of Environmental Enforcement, Room 627, 50 Wolf Road, Albany, New York 12233-5500.

The Department's Environmental Permits "Review Staff" was represented by Christopher A. Lacombe, Esq., Regional Attorney in the Department's Region 5 Office, Division of Legal Affairs, Route 86 - P.O. Box 296, Ray Brook, New York 12977-0296.

The Upper Saranac Lake Association ("USLA") was represented at the issues conference by James L. Sonneborn, Esq., Sonneborn Law Offices, The Seneca Building, 241 West Fayette Street, Syracuse, New York 13202. Mr. Sonneborn is a member and past-President of the USLA. Subsequently, the USLA's other designated legal representative, Joan Leary Matthews, Esq., 5 Coventry Road, Glenmont, New York 12077, joined in the submission of post-issues conference briefs.

The Lake Champlain Chapter of Trout Unlimited and the New York State Council of Trout Unlimited (collectively "Trout Unlimited" or "TU") were represented at the issues conference by William H. Wellman, 7 Helen Street, Plattsburgh, New York 12901. Mr. Wellman is Vice-President of the Lake Champlain Chapter and a delegate to the State Council.

The New York State Conservation Council Inc. ("NYSCC"), 8 East Main Street, Ilion, New York 13357, was represented at the issues conference by Howard O. Cushing, President, 96 Jones Road, Poestenkill, New York 12140.

Lynn Fisher Kemp, 46 Shepard Avenue, P.O. Box 28, Saranac Lake, New York 12983, was represented at the issues conference by Mr. Sonneborn. Ms. Kemp is the owner of property on Little Clear Pond Outlet, downstream from the Adirondack Fish Culture Station, Santa Clara, New York. She is also a member of the group of several individuals who joined with USLA in the matter of USLA, et al. v. NYSDEC.

Upon hearing oral arguments regarding petitions for party status and the proposed potential issues, I established a timetable for detailed written submissions from the above participants to address the proposed issues. Following several requests for extensions of time to submit, the initial responses were received between November 16 and 27, 1998. Reply responses were received on December 14 and 15, 1998, with a second round of reply responses received between January 7 and 20, 1999.

Summary Positions of the Participants

- The Applicant

The Applicant believes it has met its burden to receive renewal approval for its SPDES permit at the Adirondack Fish Culture Station. In sum, the Applicant believes it has adequately and appropriately addressed all potential concerns and regulatory criteria relating to the effluent discharged from the facility, and that, consequently, there are no issues which are substantive and significant enough to require adjudication; and therefore, no hearing is warranted.

- The Review Staff

The Review Staff contends the Applicant's proposal, as suitably conditioned by the draft permit, provides adequate protection for the aquatic environment of Little Clear Pond Outlet, Mill Brook, Upper Saranac Lake and the surrounding area. Under the applicable statutory and regulatory criteria set forth in the ECL and 6 NYCRR, the Review Staff maintains there are no additional restrictions or prohibitions which would preclude the renewal of the facility's SPDES permit.

- The Upper Saranac Lake Association

At the outset, the USLA maintains that the terms of the August 8, 1994 Stipulation and Settlement Agreement in the matter of USLA, et al. v. NYSDEC provide that the USLA shall be granted party status and an adjudicatory hearing regarding any renewal of the SPDES permit for the subject facility. The USLA contends that, in court papers, the Department guaranteed that an adjudicatory hearing would be held and that now the Applicant and Review Staff seek to renege on that promise. Further, in addition to a variety of factual issues which it has raised regarding alleged technical deficiencies in the draft renewal permit, the USLA contends that the Applicant and the Review Staff are in violation of the ECL and the Department's implementing regulations in 6 NYCRR Part 617 by not conducting a comprehensive SEQRA review of the fish hatchery operations and the attendant SPDES permit, and that the draft SPDES permit violates the federal Clean Water Act and the ECL by virtue of the failure to incorporate the anti- backsliding provisions of those statutes(2) into the terms of the draft permit. The USLA maintains that the effluent limitations and the sampling and monitoring requirements proposed in the draft SPDES permit will not ensure compliance with the water quality standards applicable to Little Clear Pond Outlet, Mill Brook and Upper Saranac Lake. The USLA believes the only way to properly evaluate the Applicant's proposal and the Review Staff's draft permit is to consider a full and complete Environmental Impact Statement and SEQRA review in the context of a formal adjudicatory hearing process. USLA contends that anything less amounts to a breach of the agreements the Department made to the USLA in Supreme Court.

- Trout Unlimited

Trout Unlimited supports the renewal of the subject facility's SPDES permit under the conditions proposed in the Review Staff's draft permit. TU maintains that the effluent limitations, sampling and monitoring provisions proposed are reasonable and achievable and in accordance with the applicable statutory and regulatory standards. TU contends that the opposing intervenors have not met their burden in establishing the existence of any substantive and significant issues regarding the proposed SPDES permit renewal, and therefore, no adjudicatory hearing is warranted.

- New York State Conservation Council, Inc.

The New York State Conservation Council supports the renewal of the SPDES permit for the Adirondack Fish Culture Station as presently proposed. NYSCC is opposed to any measures which would have the ultimate impact of downsizing or closing the fish hatchery. NYSCC maintains that continuation of the fish rearing activities at the hatchery is critical for the economic well-being of the Upper Saranac Lake area and the Adirondacks in general. NYSCC further contends that any effluent discharge from the fish hatchery is only part of the pollution problem in the Upper Saranac Lake watershed, and that to protect the Lake's water quality, better controls need to be imposed on other sources of pollution, in particular the septic systems of the many private residences which surround the lake, many of which are failed due to age and/or inadequate due to the shallow bedrock geology around the lakeshore.

- Lynn Fisher Kemp

Lynn Fisher Kemp concurs with the contentions made by the USLA. As part of the legislative public statement hearing in this matter, Ms. Kemp also provided a perspective on the adverse changes in water quality/streambed characteristics in Little Clear Pond Outlet which she believes are attributable to the hatchery operation.

The Standards for Determining Adjudicable Issues

In order for an issue to be adjudicated in an administrative permit hearing, as set forth in 6 NYCRR §624.4(c)(1), the issue must relate to a dispute between the Department Staff and the Applicant over a substantial term or condition of the draft permit; relate to a matter cited by the Department Staff as a basis to deny the permit and which is contested by the Applicant; or be an issue proposed by a potential party and which is both substantive and significant.

Pursuant to 6 NYCRR §624.4(c)(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 accordance with 6 NYCRR §624.4(c)(3), an issue is significant if it has the potential to result in the denial of a permit, in a major modification to the proposed project or in the imposition of significant permit conditions in addition to those proposed in the draft permit.

6 NYCRR § 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.

Lastly, the regulations provide, in 6 NYCRR §624.4(c)(5), that if the ALJ determines there are no adjudicable issues, the ALJ will direct that the hearing be canceled and that the Department Staff continue processing the application to issue the requested permit. In this matter, the Applicant, the Review Staff, TU and NYSCC, all urge that there are no issues which meet the standards for adjudication, that there is no necessity for any further hearing and that the requested SPDES renewal permit should be issued, while USLA submitted several proposed issues which it believes warrant adjudication.

The Issues Proposed for Adjudication

Automatic Party Status - The USLA raised as a threshold issue the nexus between the instant administrative hearing process and the prior court proceedings. USLA interprets the Stipulation and Settlement Agreement dated August 8, 1994 such that it is automatically entitled to full party status and that the issues it raised in the court proceedings were already determined by the Supreme Court Judge to be substantive and significant enough to warrant an adjudicatory hearing before an Administrative Law Judge. The Applicant, the Review Staff and TU, on the other hand, interpret the language of paragraph 18 of the Stipulation and Settlement Agreement as offering USLA the opportunity to receive party status and an adjudicatory hearing, only if USLA complies with the provisions of 6 NYCRR Part 624, specifically, the requirements for party status in §624.5(b)(1) and (2) and the requirements for adjudicable issues in §624.4(c), as outlined in the preceding section of this Ruling.

Paragraph 18 of the Stipulation and Settlement Agreement reads, "After completion of the Study Report, DEC will undertake permit renewal proceedings pursuant to 6 NYCRR Part 621 and shall process the application for renewal as a 'major project', and afford petitioners an adjudicatory hearing and party status pursuant to 6 NYCRR Part 624." This language explicitly transfers the SPDES permit renewal proceeding to DEC, and implicitly acknowledges the practice whereby the Courts routinely defer administrative decision making to the State agency with the primary jurisdiction, i.e. -- the expertise and special competence in dealing with such technical matters as SPDES permits.(3) The language of this paragraph also acknowledges that the Department of Environmental Conservation has established formal regulations regarding the processing of permit applications and the conducting of hearings regarding those applications, and that it is appropriate in this instance to proceed in accordance with such regulations.

The key tests a hearing participant must meet in order to receive party status relate to the identification of the participant's environmental interest in the proceeding and the identification of issues which are suitable for adjudication. As I ruled in a letter to USLA's Attorney Matthews on August 26, 1998, there is no question regarding USLA's ability to demonstrate its environmental interest in the proceedings. The Applicant, Review Staff and TU also concur that this portion of the test for party status has been met.

The second portion of the test for party status relates to whether a participant identifies substantive and significant issues which warrant adjudication and whether the participant presents suitable offers of proof to support any such issues. Absent the identification of issues which are substantive and significant, as defined in the regulations, and the requisite offer of proof to support those issues, there is no justification for conducting an adjudicatory hearing. It would be illogical to grant party status to an intervenor under such circumstances. Therefore, the Permit Hearing Procedures in Part 624 do not contemplate an automatic granting of party status to intervening participants. Party status is only granted if the requirements for same, as set forth in §624.5(b), are satisfied. f

Commitments Made in Court - USLA also maintains that the promises made by the Department's representatives in the court proceedings bind the Department to follow through on those promises. In 1993, as USLA, et al. v. NYSDEC was being litigated in State Supreme Court, representatives of the Department submitted affidavits to the Court, stating in part, "Because DEC is aware that interested parties, including the petitioners, are likely to raise substantive and significant issues, the resolution of which could result in the imposition of additional permit conditions, DEC has already determined that is (sic) shall convene an adjudicatory public hearing."(4) The document goes on to generally outline the permit hearing procedures set forth in 6 NYCRR Part 624 and states, "DEC staff would not contest petitioners request for party status."

USLA argues that DEC committed to holding an adjudicatory hearing on the SPDES permit renewal, and that now the Applicant and the Review Staff both oppose going forward with such an evidentiary proceeding. At that time the Department clearly described the hearing process, noting that, "The ALJ will outline the conduct of the hearing and determine what issues will be the subject of adjudication." That is precisely the process in which we are engaged at present. Again, it is the matter of interpretation which is causing the contention here.

The Applicant, Review Staff and TU do not contend that the current forum, i.e. -- the issues conference, with follow-up Rulings, which is the precursor to a potential full evidentiary, adjudicatory hearing, is improper. Nor do they oppose the granting of party status to the USLA if this case does proceed to an adjudicatory hearing. They are merely saying that, in the intervening five and one-half years, the Department, with the assistance of others, completed the court-ordered Lake Report, and that, based on the findings and conclusions in the Lake Report, the Applicant and Review Staff have agreed to incorporate revised parameters in the renewal SPDES permit for the fish hatchery. At this juncture, the Applicant, the Review Staff and TU contend that the commitments made in legal papers were misconstrued by the USLA, and that in any event, those commitments were superceded by the explicit language in paragraph 18 of the 1994 Stipulation and Settlement Agreement. They further maintain that the revised permit adequately addresses a multitude of concerns which were previously raised, that there is no demonstration that the Applicant will not be able to meet the effluent discharge limits in the permit or any other statutory or regulatory criteria applicable to the project, that there is no indication that the project must be further modified or that any further conditions should be imposed in the permit, and therefore, the issues raised now by USLA are not substantive and significant enough to warrant an adjudicatory hearing.

I do not find the current position of the Applicant, the Review Staff and TU to be inconsistent with the commitment to an adjudicatory hearing that the Department made in 1993 and 1994. The "administrative proceedings" references in various of the Court documents do not guarantee that an adjudicatory hearing will be held when the DEC hearing process is convened to consider permit applications. The 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 6 NYCRR §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. In the meantime, USLA's rights of participation in the permit hearing process have not been abridged in any way or manner. If, ultimately, USLA is not satisfied with the outcome of the permit hearing process, it may seek appropriate judicial recourse.

SEQRA Determination of Significance - Additionally, the USLA disagrees with the Review Staff's determination of significance regarding the subject permit application pursuant to the State Environmental Quality Review Act, ECL Article 8, and the Department's regulations in 6 NYCRR Part 617. The intervenors cite failure to require the preparation of an environmental impact statement as far back as the mid-1980's, when the hatchery was proposed to be reconstructed, as the basis for the need to adjudicate various issues.

The permit hearing regulations in 6 NYCRR §624.4(c)(6)(i)(a) provide that, when the Department is the lead agency or there has been no coordinated review, "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."

USLA alleges that DEC, not distinguishing between the Applicant and the Review Staff, has failed to take the requisite "hard look" at the environmental consequences of the hatchery operations and then make a reasoned determination regarding the significance of those actions. USLA has provided a litany of citations, both to case law and to the applicable SEQRA regulations, which purport to mandate the preparation of an environmental impact statement for renewal of the fish hatchery's SPDES permit.

"No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR." [6 NYCRR §617.3(a)] The subject facility originally was constructed as a fish hatchery in 1885. Since then it has been operated by the Department of Environmental Conservation and its predecessor agencies for the production of various fish species. It is presently dedicated to producing Atlantic salmon for statewide use in DEC's fisheries management programs. In 1986, the Department initiated reconstruction of the fish culture facilities at the site. An initial design for the new facility was developed, the proposal was classified as a Type I action for SEQR purposes and the Department's hatchery staff completed a Full Environmental Assessment Form for the proposed project.

The Department's guidebook on SEQRA procedures states, "An environmental assessment is an evaluation of the known or potential environmental consequences of a proposed action. Such assessments also determine whether additional relevant information about such impacts is needed."(5) The guidebook continues, "An environmental assessment form provides an organized approach to identifying the information needed by the lead agency to make its determination of significance." and "For Type I actions a full EAF must be used."

"A determination of significance is the critical step in the SEQR process in which it is decided whether an environmental impact statement must be prepared for an action classified as Type I or Unlisted. The lead agency must decide whether a proposed action may have a significant effect on the environment (and require the preparation of an EIS) or whether such action will not have a significant effect on the environment (and require the preparation of a negative declaration)." "Type I actions do not automatically require an EIS."(6)

The guidebook further states, "The two key characteristics in determining significance are 'magnitude' (severity) and 'importance' (relation to its setting) of impacts. Each impact of an action must be judged by these two characteristics. Generally, bigger impacts are more likely to need more detailed analysis. The characteristic of 'importance' requires us to look at an impact in relation to the whole action. The short or long term or cumulative nature of the impacts alsoneed to be considered."(7) Detailed criteria for determining significance are contained in the SEQRA regulations at 6 NYCRR §617.7(c).

In preparing the Full Environmental Assessment Form, the Department's hatchery staff identified several impacts of the proposed facility reconstruction. Noted on the form were the following items:

- construction would occur on land where the depth to the water table is less than 3 feet; - some construction would occur in a freshwater wetland;

- the project would require a discharge permit -- a SPDES permit was already in effect;

- the project would require a water supply from wells with greater than 45 gallons per minute pumping capacity;

- the project would require a facility that would use water in excess of 20,000 per day -- although total water usage would remain the same before and after the reconstruction;

- the project included demolition of the old hatchery building; and

- the project would replace or eliminate existing facilities, structures or areas of historic importance to the community.

The hatchery staff adjudged these impacts as being small to moderate, since the proposed reconstruction was targeted to modernize the facility, not to significantly increase hatchery production. The design reports for the hatchery reconstruction identified five goals:

- replace old and/or deteriorated facilities;

- construct facilities utilizing new rearing techniques;

- provide incoming water treatment facilities to produce a healthier, more stable class of fish;

- construct a rearing effluent discharge treatment system to meet SPDES limitations; and

- construct a separate visitor facility.

Ultimately, since no large or major impacts were identified in the analysis of the hatchery reconstruction plans, the Department, as lead agency, issued a SEQR Negative Declaration - Notice of Determination of Non-Significance. As justification, the reasons supporting the determination were cited as follows:

"The Department of Environmental Conservation's use of the Adirondack Fish Hatchery will remain essentially the same after completion of the project. We will culture only landlocked salmon as we have for the past two years. The total pounds of fish raised and food used will remain the same; thus neither discharges nor our current SPEDES (sic) Permit for the hatchery will change. Construction will be limited to a relatively small area with little change in the amount of developed land. A very small wetland is present, however, the project will affect only 0.1 acres. Any necessary permits will be obtained. Two old buildings, not listed on the National Historic Register, are proposed for demolition because of their present unsafe condition and poor location."(8)

Particular emphasis was to be given to upgrading the hatchery's wastewater treatment system during the reconstruction due to the effluent discharge into a Class AA(T) receiving stream. The facility had first received a SPDES permit in 1980, but at that time effluent from the existing facility received no treatment prior to discharge into Little Clear Pond Outlet. The design reports state that the effluent discharge into the stream generally met the limitations in the initial

SPDES permit, except when the raceways were being cleaned, at which time the concentration of settleable solids in the effluent often exceeded the permit discharge limitations. Indeed, the initial design for the wastewater treatment system was changed to provide for a better waste removal system.

In reviewing the various materials presented by the issues conference participants to develop the record of this proceeding, I do not find that the hatchery staff's analysis of the potential impacts of the hatchery reconstruction in the mid to late 1980's was in any way improper. The impacts which were identified were not potentially large impacts, in the context of the reconstruction and subsequent proposed similar operational characteristics of the new facility. Further analysis of the proposal by other Department staff members in the Division of Fish and Wildlife, Division of Water, Division of Operations and Division of Regulatory Affairs demonstrated that there was a recognition that the hatchery's wastewater treatment system would have to be upgraded and measures were initiated to implement the necessary improvements. At the conclusion of the environmental analysis evaluations, the issuance of a SEQR Negative Declaration - Determination of Non-Significance for the hatchery reconstruction and continued operation was neither irrational nor otherwise affected by an error of law. Therefore, pursuant to 6 NYCRR §624.4(c)(6)(i)(a), it is not within my purview to disturb the Department Staff's determination.

With regard to the proposed hatchery reconstruction, the project was not legally challenged by USLA or any other person or entity on a timely basis, and the project was subsequently completed. Once a final decision is made on an action and the action is completed, the Negative Declaration cannot be rescinded.(9)

Proposed Action - Type II vs. Type I - With respect to the actual SPDES permit renewal application, USLA contends that the action to renew the permit should be processed as a Type I action rather than a Type II action, that preparation of an environmental impact statement is mandatory as a part of the application review and processing, and that such an EIS should have been a precedent to the issuance of renewed SPDES permits for the hatchery for more than the last decade.

Historically, wastewater discharges from fish hatcheries were generally not regulated. As environmental consciousness escalated during the 1970's, there was a recognition that fish hatchery operations could cause potentially harmful effluent discharges to the receiving water bodies. Thereafter, in New York State, operations at the State's fish hatcheries came under increased scrutiny, with the effluent discharges ultimately becoming subject to SPDES permit requirements.

As previously noted, it was not until 1980 that a SPDES permit was issued to the Adirondack Fish Hatchery. SPDES permits are issued for five year periods. Since the hatchery was proposed for reconstruction at approximately the same time as the renewal of the facility's SPDES permit was due, the hatchery applied for modification of the initial SPDES permit to incorporate the anticipated upgrade of the wastewater treatment system. As also noted above, the initial proposal for this system was then revised to provide for a better waste removal system. Subsequently, a new SPDES permit, incorporating the revised hatchery design, was issued to the Adirondack Fish Culture Station by the Department's Regulatory Affairs Staff on February 5, 1988, to be effective on March 1, 1988, with an expiration date of March 1, 1993 (five years).

During that five year period, the SPDES permit was modified several times: first in 1989 to correct the address of the facility; then in 1990 to change the schedule for monitoring, imposing a new requirement to monitor for phosphorus on a monthly basis and changing the dissolved oxygen and pH monitoring frequency from daily to weekly; and again in 1991 to change the monitoring reporting time from 28 to 60 days following the end of each reporting period, due to the added time required by the New York State Department of Health Laboratory contracted to do the sample analysis. In 1992, the hatchery staff applied for renewal of the permit, well in advance of the permits March 1, 1993 expiration date. The renewal permit was issued without any changes on November 24, 1992, with an effective date of January 1, 1993 and an expiration date of January 1, 1998. USLA initiated its legal challenge to the SPDES permit renewal, USLA, et al. v. NYSDEC, in January 1993.

With the reconstruction of the hatchery, the first wastewater treatment system was incorporated into the hatchery design. This design utilized settlement of the solid material and then removal of the resulting sludge as a means of primary treatment. The 1988 renewal SPDES permit for the facility recognized the use of primary treatment in the "Process" effluent limitations imposed on the facility's discharge to Little Clear Pond Outlet. The 1992 renewal SPDES permit for the hatchery incorporated the modifications which had been made to the 1988 permit, and as a result, it was more comprehensive than the original 1988 permit, in that an effluent limitation for phosphorus was included. 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, BOD5, total suspended solids, settleable solids, dissolved oxygen and pH, while more stringent limits are imposed for ammonia and phosphorus. Therefore, each of the SPDES permits issued to the hatchery over the last two decades has been at least equivalent to, if not more stringent than, the immediately preceding permit.

"SEQR requires that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement." (Emphasis added) [6 NYCRR §617.1(c)]

Pursuant to 6 NYCRR §617.5(a), Type II actions are those which "have been determined not to have a significant impact on the environment or are otherwise precluded from environmental review under Environmental Conservation Law, Article 8." Listed in paragraph (c) of this same section are 37 actions which are not subject to review under SEQRA/Part 617/ECL Article 8. Item 26 in the listing reads, "license, lease and permit renewals, or transfers of ownership thereof, where there will be no material change in permit conditions or the scope of permitted activities."

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 related 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 previous permits. (The proposed issue related to alleged relaxation of monitoring requirements will be considered in the following sections of this Ruling.) The imposition of equivalent or more stringent conditions in the proposed permit does not result in the action causing significant adverse impacts. If anything, the more stringent effluent limitations proposed for the constituents ammonia and phosphorus will likely result in beneficial impacts to the environment as the result of the SPDES permit renewal. In particular, the lower phosphorus level in the proposed allowable discharge will result in less phosphorus being discharged into the Upper Saranac Lake watershed, which is precisely one of the key objectives of the USLA. Moreover, the attention and technical analysis given this matter by the Applicant and the Review Staff, based upon the record before me, is at least equivalent to what would normally be accorded a project which did require an environmental impact statement. The Applicant and Review Staff did not err in processing the proposed renewal of the SPDES permit for the Adirondack Fish Culture Station as a Type II action, rather than as a Type I action as sought by USLA.

Therefore, based on the foregoing, the Applicant and the Review Staff have complied with both the letter and the intent of the State Environmental Quality Review Act, ECL Article 8, and the implementing regulations in 6 NYCRR Part 617 with respect to the present SPDES renewal application. The SEQRA determination made by the Review Staff concerning the SPDES permit renewal was not irrational, nor was it otherwise affected by an error in law. There are no anticipated adverse environmental impacts which will result from the renewal action, and there is no justification for the preparation of an environmental impact statement for the instant proposal.

In accordance with 6 NYCRR §624.4(c)(6)(i)(a), I will not disturb the Review Staff's determination.

Anti-Backsliding Provisions - USLA contends that the proposed draft renewal SPDES permit violates the anti-backsliding provisions of the federal Clean Water Act and ECL §17-0809(3), in that the sampling and monitoring requirements and elimination of a 30-day seasonal rolling average effluent limitation and change to solely a 12-month rolling average effluent limitation for phosphorus constitute an unjustified relaxation from the provisions in the hatchery's preceding SPDES permit. USLA refers to the following items as "technical deficiencies" in the draft SPDES permit, which therefore allegedly renders it less protective of the environment than the predecessor permit.

Environmental Conservation Law §17-0809(3) refers only to effluent limitations in conjunction with the anti-backsliding requirements of the federal Clean Water Act. "Effluent standard and/or limitation" is precisely defined in ECL §17-0105(15) as "any restriction on quantities, quality, rates and 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." Effluent limitations, as defined in law, do not include sampling or monitoring requirements.

The effluent limitations for six of the eight parameters required to be measured by the draft permit remain the same, thus are equally as stringent as the corresponding parameters in the previous permit: flow limit = 3.6 million gallons per day ("mgd"); biochemical oxygen demand ("BOD5") = 5 milligrams per liter ("mg/l"); total suspended solids = 10 mg/l; settleable solids = 0.2 milliliters per liter ("ml/l"); dissolved oxygen = 7.0 mg/l; pH range = 6.5 to 8.5.

The seventh parameter, ammonia, has a significantly more stringent effluent limitation in the proposed renewal permit, a daily maximum of 32.1 lbs/day, versus a daily maximum of 54 lbs/day in the preceding permit.

The parameter of predominant concern to the USLA is phosphorus, an element which USLA links to the occasional prolific algae blooms in Upper Saranac Lake which have occurred in several recent years. The effluent limitation for phosphorus proposed in the draft SPDES permit at 0.45 lbs/day, at least for a 12 month rolling average as discussed below, is conclusively more stringent than the preceding permit's limit of 0.5 lbs/day.

At times, virtually the entire flow of Little Clear Pond Outlet is made up of water which has passed through the hatchery. At these times, there is little if any dilution water available in the stream. For purposes of effluent limit development, Little Clear Pond Outlet meets the definition of an intermittent stream. The Department's Division of Water Technical and Operational Guidance Series ("TOGS") document 1.3.1, "Total Maximum Daily Loads and Water Quality-Based Effluent Limits," identifies this situation in Little Clear Pond Outlet as being subject to intermittent stream effluent limits. The limits listed above for BOD5, suspended solids, dissolved oxygen and pH are commonly recognized as representing the highest degree of treatment that can reasonably be achieved by a wastewater facility treating domestic type waste, with the remnants of fish food and the fecal material from the fish in the instant case being generally analogous to domestic type waste.

The above effluent limits are designed to protect the water quality in an intermittent stream with an AA(T) classification and standard.(10) The following discussion of other requirements in the draft permit versus the similar requirements in the previous permit further demonstrates that the proposed renewal SPDES permit is no less stringent, and in several instances is more stringent than the prior permit.

Sampling and Monitoring - The existing SPDES permit provides that the monitoring for phosphorus be accomplished on the basis of one grab sample per week.(11) The draft permit would require that phosphorus would be monitored by one 24 hour composite sample per week.

A grab sample in the prior permit was one sample taken randomly or at a prescribed time at the specified locations one time per week. Grab sampling is appropriate where it can be anticipated that the characteristics of the wastewater do not vary significantly during the day. A 24 hour composite sample, however, requires that once a week a sample shall be taken at the specified locations every hour for a continuous 24 hour period. A composite sample is more appropriate to characterize the wastewater when there are periodic or diurnal fluctuations in pollutant levels, which in this instance are due to changes in the activity levels of the fish at various times during the 24 hour day.

The requirements for monitoring of discharges are found in 6 NYCRR §756.1. In paragraph (c) of that section, "Each effluent flow or pollutant required to be monitored . . . shall be monitored at intervals to be determined by the department as sufficiently frequent to yield data which reasonably characterizes the nature of the discharge of the monitored flow or pollutant. Variable effluent flows and pollutant levels may be required to be monitored at more frequent intervals than relatively constant effluent flows and pollutant levels which may be required to be monitored at less frequent intervals."

A grab sample is appropriate to measure parameters such as dissolved oxygen and pH, where the characteristics do not vary significantly during the day, and where there is a need to measure these parameters quickly before the value of the parameters can rapidly change due to time and temperature conditions.

The daily water flow rate through the hatchery is relatively constant, while the pollutant concentration in the effluent fluctuates with the fish activity at different times during the 24 hour day. If monitoring is to be done on a once per week basis, a protocol which requires composite of 24 separate samples, to be taken on an hourly basis throughout the entire day, is more representative of the characteristics of the wastewater and significantly more stringent than one which requires only a single random sample on any given day. Parameters in the proposed permit which are to be monitored from the 24 hour composite sample are BOD5, suspended solids, settleable solids, ammonia and phosphorus.

USLA has keyed its concerns for monitoring to the phosphorus parameter. I find no evidence in the record before me that the monitoring and sampling requirements for phosphorus, as proposed in the draft renewal SPDES permit, will cause an under-reporting of the phosphorus in the hatchery effluent or result in the reporting of any inaccurate or incomplete effluent data regarding phosphorus. On the contrary, the 24 hour composite sample taken once per week will provide a much more representative sample of the effluent characteristics, for the listed constituents, than did the weekly grab sample of those constituents which was required in the prior permit.

USLA has suggested that the hatchery staff could starve the fish for several days prior to the scheduled weekly sampling, thereby significantly reducing the quantities of fish food particles and fish waste in the effluent, in order to assure compliance with the phosphorus limit in the permit. Such a suggestion borders on being slanderous and represents a fundamental distrust of the hatchery personnel and a basic misunderstanding of how the fish hatchery must operate in order to meet the State's fish culture programmatic goals. There is nothing in the record before me to indicate that such a suggestion has even the slightest foundation.

Therefore, in consideration of the foregoing, no adjudicable issue is raised with regard to the monitoring and sampling requirements for phosphorus in the proposed SPDES permit.

Discharge Monitoring Reports - USLA contends that the Discharge Monitoring Report ("DMR") submission schedule is not sufficiently frequent to ensure compliance with the permit. The prior permit provided that, ". . . the reports will be due no later than the 28th day of the month following the end of each reporting period." A June 1995 revision to that permit provided that, ". . . the reports will be due no later than 60 days following the end of each reporting period." USLA argues that the requirements in the prior permit are the statewide norm for permittees to report their monitoring results, and further, that the Department modified this portion of the SPDES permit without any notification to USLA.

Reporting of monitoring results and other information by the permittee is regulated by 6 NYCRR §756.3. The regulations in paragraph (a) of that section provide, "Any results obtained by a permittee pursuant to monitoring requirements in a SPDES permit shall be reported at the end of each month, unless otherwise specified by the department." Further, in 6 NYCRR §757.1(d), "The commissioner may, upon request of the applicant, make minor revisions or modifications to monitoring requirements and other provisions (other than effluent limitations) in an issued SPDES permit if he determines good cause exists for such revision and if within 30 days following receipt of notice from the commissioner, the regional administrator does not object in writing."

The very low concentrations of phosphorus found in the hatchery discharges, generally less than 30 micrograms per liter ("µg/l"), require that any laboratory analyzing the effluent have the capability of consistently and reliably detecting and reporting the analysis results. The hatchery staff has found that the Wadsworth Laboratory operated by the new York State Department of Health can achieve such analysis. Unfortunately, the Health Department's laboratory has a workload which has frequently prevented it from being able to meet the desired time frame for reporting results by the end of each month, so as to be included in the DMR for that month within a 28 day period.

With the Health Department's laboratory being the hatchery staff's preferred laboratory for phosphorus analysis, given its inability to consistently meet the desired 28 day reporting deadline, the hatchery staff has availed itself of the above regulatory provisions, which allow an extended period within which to report the analysis results. This circumstance is not within the control of the hatchery staff, and while a shorter reporting frequency would be desirable, the 60 day or two month reporting period is not unreasonable, and further, is not contrary to the regulations. Moreover, this situation is not unique or a special accommodation made to the hatchery as a Department-run facility. There are at least 18 other permitted dischargers within the State that have DMR submission dates which exceed the more typical one month requirement. Of these, 14 permitted facilities have reporting dates which exceed 60 days.

Additionally, there is no regulatory requirement for the hatchery staff to notify USLA regarding such a change, which is considered by the regulations to be a minor revision or modification. Therefore, there is no adjudicable issue raised with regard to the monitoring results and DMR reporting requirements in the draft renewal SPDES permit for the hatchery.

Elimination of 30 Day Rolling Average for Phosphorus - The existing permit limits for phosphorus were adopted in accordance with the negotiated terms of the 1994 Stipulation and Settlement Agreement. These terms included a 30 day net rolling average(12) of 1.5 pounds per day ("lbs/day") for November through July and 2.0 lbs/day for August through October. The existing permit also contains a 12 month rolling average(13) for phosphorus of 0.5 lbs/day.

The draft renewal SPDES permit proposes to eliminate the seasonal 30 day rolling average effluent limitations, leaving solely the effluent limitation for phosphorus of 0.45 lbs/day on 12 month rolling average. There is no question that on a 12 month rolling average basis a discharge limit of 0.45 lbs/day is more stringent than a 0.5 lbs/day limit. There is no issue regarding the 12 month rolling average effluent limitation in the proposed renewal permit. However, USLA contends that the elimination of the 30 day rolling average effluent limitation for phosphorus represents an unjustifiable relaxation of the SPDES permit conditions, in contravention of federal and state statutes, which will adversely impact the quality of the receiving waters within the Upper Saranac Lake watershed.

The question, then, is whether the elimination of the seasonal 30 day rolling average effluent limitations reduces the environmental protection provided by the permit, i.e. whether the draft permit is any less stringent as the result of this omission. The seasonal 30 day rolling average effluent limitations were the subject of 1994 Stipulation and Settlement Agreement. Paragraph 14 of that document provides that the modified permit agreed to by both parties would contain limits for net phosphorus on a 12 month rolling average basis, "and a 30-day running (sic) average of net phosphorus for the duration of the permit of 1.5 pounds per day for the months of November through July, and 2.0 pounds per day for the months of August through October." USLA contends that this condition in the SPDES permit was "hard-fought" and "central" to the agreement, because it accounts for the seasonal variation in the phosphorus loadings in the effluent due to the seasonal differences in the hatchery operations attributable to number and size of fish in the rearing facilities. USLA also contends in its filing in the instant matter that, "In fact, the 30-day rolling average was more stringent in the second 12-month period of the two-year 'temporary' permit." None of the papers before me substantiates that claim, although the statement could apply to the effluent limitation parameter for the 12 month rolling average for net phosphorus in the hatchery discharge, which in the first 12 month period was 0.6 lbs/day versus 0.5 lbs/day in the second 12 month period covered by the previous SPDES permit.

Documentation submitted in support of the renewal SPDES permit indicates that, between January 1995 and August 1998 -- nearly four years of data, the 30 day rolling average net discharge of phosphorus from the hatchery was generally less than 0.40 lbs/day. During that period, three spikes in the data occurred during which the 30 day rolling average net phosphorus discharge exceeded 0.60 lbs/day, with the peak being approximately 0.77 lbs/day in September 1996. All three spikes occurred during the late summer-early fall when the hatchery operations were in their seasonally high production period. Of note is that during this recent almost four year period, the 30 day rolling average net phosphorus discharge from the hatchery only once reached and slightly exceeded even one-half the more stringent effluent limit of 1.5 lbs/day, a limit which applied to the facility during the months of November through July, not in September when the less stringent limit of 2.0 lbs/day was in effect.

Effluent limitations are only valuable for characterizing the monitored parameters in a SPDES permit when they can provide meaningful information regarding the level of the particular constituent in the facility's discharge. If an effluent limitation is set so stringently that a permittee, who is really trying to achieve compliance, is continually in violation of that permit condition, then the condition may be unrealistic for application to that facility. Similarly, if an effluent limitation provides too much of a cushion between what a facility may be reasonably able to achieve and what is required to be in violation of the condition, then that condition is meaningless in providing the regulating entity with information regarding the discharge, such that there is an incentive for the facility to continue to reduce the levels of pollutants in its discharge. The 30 day rolling average net phosphorus effluent limitation in the hatchery's preceding SPDES permit falls into the latter category, it being set so high that the facility normally achieves levels which are generally less than one quarter the more stringent effluent limit value, and which, at most, occasionally reach approximately one-half the more stringent value.

The Applicant and the Review Staff concur that the seasonal 30 day rolling average net phosphorus discharge limit, as in the prior SPDES permit, is meaningless. The Applicant has unilaterally offered USLA and the Review Staff that it would be willing to incorporate a provision for seasonal 30 day rolling average effluent limitations for phosphorus into the draft renewal SPDES permit, albeit with lower, more meaningful limits. USLA's response is that such a proposal would require further discussions among the Applicant, Review Staff and USLA regarding the appropriate effluent limits and the frequency of monitoring. The Review Staff's response is that it does not believe that a seasonal 30 day rolling average effluent limitation for phosphorus is necessary to ensure water quality standards are maintained, given the demonstrated performance of the wastewater treatment system at the hatchery and the continuing efforts of the hatchery staff to reduce phosphorus in the hatchery discharge.

I find there is no necessity or justification to impose an effluent limitation for a seasonal 30 day rolling average net phosphorus discharge, if the limits would remain the same as in the prior SPDES permit. The Applicant's proposal for such a condition with lower, more meaningful limits may have some merit. However, this is not an issue which in any way warrants adjudication. With a reduced 12 month rolling average net phosphorus effluent limitation in the proposed renewal SPDES permit, there is no back-sliding with respect to the relative stringency of the permit conditions for the phosphorus parameter. The absence of a 30 day rolling average, especially with the effluent limitations in the prior permit, does not diminish the environmental protection provided by the SPDES permit.

Appropriateness of DEC Guidance Value for Phosphorus - USLA contends that the Department's phosphorus guidance value is legally and scientifically inappropriate.

Environmental Conservation Law §17-0801, establishing the SPDES permit program in New York states the purpose of the law is, "To create a state pollutant discharge elimination system (SPDES) to insure that the State of New York shall possess adequate authority to issue permits regulating the discharge of pollutants from new or existing outlets or point sources into the waters of the state, upon condition that such discharges will conform to and meet all applicable requirements of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251, et seq.) hereinafter referred to as the 'Act', and rules, regulations, guidelines, criteria, standards and limitations adopted pursuant thereto relating to effluent limitations, water quality related effluent limitations, new source performance standards, toxic and pretreatment effluent limitations, ocean discharge criteria, and monitoring, and to participate in the national pollutant discharge elimination system (NPDES) created by the Act." Section 17-0804 of the ECL provides, "The rules and regulations adopted by the department to implement this title and the provisions of article 70 of this chapter and rules and regulations thereunder shall govern permit applications, renewals, modifications, suspensions and revocations under this title."

The Division of Water's TOGS 1.1.1, "Ambient Water Quality Standards and Guidance Values," version dated April 1987, explains in its attachment, "The attached tabulation of water quality standards and guidance values provides ambient pollutant concentrations that have been developed to protect New York State waters for their best classified use. These values are used by the Department in the establishment of SPDES permit water quality-based effluent limits and in the evaluation of ambient water quality data." Referring to the regulations in 6 NYCRR Parts 701-703, the document further states, "These regulations also provide authority for the use of guidance values when a standard does not exist for a given water classification."

Pursuant to the authority of the Department under ECL Article 17, Title 8, and in the rules and regulations in 6 NYCRR part 702 (Derivation and Use of Standards and Guidance Values), the Department duly derived a phosphorus guidance value in the October 1993 update of TOGS 1.1.1. The phosphorus guidance value was established at a level of 20 µg/l, which is applicable to all Class A, A-S, AA, AA-S, or B ponded waters where the letter "P" appears in the Water Index Number, excluding Lakes Erie, Ontario and Champlain, based on aesthetic effects for primary and secondary contact recreation. (The Water Index Number for Upper Saranac Lake, in 6 NYCRR §830.4, Item No. 156, is "C-15-P 110-6-P 114.") The 20 µg/l value is applied during the growing season (June 1 to September 30) as the mean summer epilimnetic total phosphorus concentration. The derivation of a phosphorus guidance value to protect the best usages of the classified waters of the State, in accordance with the authority provided in law and regulation, is legally and procedurally correct.

The Lake Report concluded that Upper Saranac Lake is a mesotrophic body of water,(14) which experiences some water quality problems, similar to other lakes in the region.(15) The range of total phosphorus in a mesotrophic lake is 10 - 26 µg/l.(16) The Lake Report found that the north basin of Upper Saranac Lake had an average epilimnetic total phosphorus concentration of 13.6 µg/l,(17) and for phosphorus, all lake stations were in the mesotrophic range, close to the mesotrophic-oligotrophic border, during 1995 and 1996.(18) 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 µg/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 µg/l.

Under the above circumstances, the phosphorus fraction of the hatchery effluent discharge, under the terms of the proposed renewal SPDES permit, will not have an adverse impact on the water quality in Upper Saranac Lake. I find that there is scientific justification for the application of the 20 µg/l guidance value for phosphorus to Upper Saranac Lake, and further, there is no adjudicable issue raised regarding the Department's phosphorus guidance value.

Effluent Limits - Water Quality Based and Technology Based - USLA curiously alleges that no water quality based effluent limits were utilized in developing the draft renewal SPDES permit for the hatchery, and further, that only water quality based effluent limits, not technology based effluent limits, are appropriate for the permit.

Water quality based effluent limits are derived from water quality standards or guidance values and are defined as those limits which are necessary to protect the receiving water with regard to its mandated best usages. Technology based effluent limits are defined as those limits which are necessary to satisfy the technological requirements of the Clean Water Act and NPDES rules and regulations.

In fact, the draft renewal SPDES permit for the hatchery contains both water quality based effluent limits (for the parameters BOD5, suspended solids, ammonia, dissolved oxygen and pH) and technology based effluent limits (for the parameters settleable solids and phosphorus). Therefore, under the USLA contention, only the parameters for settleable solids and phosphorus, i.e. -- the technology based limits in the permit, would need to be addressed further, since the other parameters are already water quality based limits, as sought by USLA.

The process of developing effluent limits for a SPDES permit begins by reviewing each pollutant known or expected to be discharged to determine how much pollutant can be discharged to the receiving waters without causing an adverse impact on the quality of those receiving waters. For this facility, the receiving waters, when considering BOD5, suspended solids, settleable solids, ammonia, dissolved oxygen and pH, are the waters in Little Clear Pond Outlet. As noted previously in this Ruling, for purposes of the permit development, Little Clear Pond Outlet was considered to be an intermittent stream and was subject to intermittent stream effluent limits. In accordance with the Department's Division of Water TOGS 1.3.1, "Total Maximum Daily Loads and Water Quality-Based Effluent Limits," standard discharge limits for BOD5, suspended solids and dissolved oxygen were established that are stringent enough to protect the water quality of intermittent streams, as nominally Little Clear Pond Outlet, and are considered to be the highest degree of treatment that can reasonably be achieved by practical treatment technology. The guidance value effluent limits for these parameters have been used in the draft renewal SPDES permit. Under this same guidance document, the pH effluent limit is to be set as the range which is appropriate to the water body classification. The appropriate pH range, from 6 NYCRR §703.3, has been used in the draft permit. Also in accordance with TOGS 1.3.1, an effluent limit for ammonia is to be set as a water quality standard, as an average or maximum value, based upon aquatic toxicity. In accordance with the tables for water quality standards found in 6 NYCRR §703.5(f), and considering the flow rate, temperature and pH of Little Clear Pond Outlet, the maximum concentration of ammonia for any flow in the stream was calculated and applied in the draft permit.

With respect to settleable solids and phosphorus, the effluent limits are technology based. For settleable solids, the limit was set at a level that can reasonably be expected to be achieved by practical standard treatment technology, based upon U.S. Environmental Protection Agency and DEC experience. The settleable solids parameter is a measure of the efficiency of the wastewater treatment facility to settle out particulate matter from the water column as the flow passes through the settling basins at the facility. In this instance, the settling basins at the hatchery have demonstrated a high degree of efficiency in their ability to remove particulate matter from the effluent, and a reasonable and readily achievable effluent limit has been incorporated into the draft renewal SPDES permit based on this proven performance.

The effluent limit for phosphorus is based upon a concern for the accumulation and retention of phosphorus in ponded waters, e.g. -- Upper Saranac Lake, not flowing waters, e.g. -- Little Clear Pond Outlet. This is because phosphorus is transported by flowing waters and generally does not accumulate in flowing streams. The deleterious effects of phosphorus are generally more pronounced in water bodies with low flow, where the phosphorus is retained and accumulated, and where it, as a nutrient, can contribute to enhanced algae and aquatic plant growth.

A waste assimilative capacity analysis, as recommended in TOGS 1.3.1, and the Lake Report were used by the Review Staff to assess the pollution problems in Upper Saranac Lake and to develop a strategy such that any discharges of phosphorus from the hatchery, in accordance with an appropriately conditioned draft renewal SPDES permit, would not compromise water quality in the Lake. A waste assimilative capacity analysis results in the designation of a water body segment as either "effluent limiting" or "water quality limiting." Effluent limiting segments are those portions of a water body that will meet applicable water quality standards with the application of technology based treatment requirements by industries (fish hatcheries - fish culturing industry). Water quality limiting segments are those portions of a water body where water quality does not meet applicable standards, or is not expected to meet applicable standards, even after the application of technology based treatment requirements by industry.

The Lake Report, using data collected in 1995 and 1996, notes that the hatchery discharges represent approximately 3% of the annual phosphorus load to Upper Saranac Lake, and about 7% (8% seasonally, May through September) of the annual phosphorus loading to the north basis of the Lake, based on annual hatchery discharges of 128 pounds of phosphorus. Since the Lake Report was completed, the phosphorus discharge from the hatchery for 1997 was 105 pounds, representing a contribution of approximately 2.1% of the phosphorus loading to the entire Lake and approximately 5.4% of the phosphorus load in the north basin. In 1998, the hatchery discharged 86 pounds of phosphorus. Using this data and my own admittedly imprecise calculations to extrapolate this data, the 1998 hatchery phosphorus contribution would correspondingly represent a loading of roughly 1.4% in the entire Lake and approximately 4.1% in the north basin.

As discussed above, the Department does not have a regulatory standard for phosphorus in fresh surface waters. It has, as previously noted, established a guidance value of 20 µg/l for phosphorus, a guidance value which is applicable to Upper Saranac Lake. As reported in the Lake Report, total phosphorus concentrations in the epilimnion of Upper Saranac Lake varied between 12.0 µg/l (south basin) and 13.6 µg/l (north basin). With these values being well below the 20 µg/l guidance value, and with the demonstrated reduction in the hatchery's fraction of the annual phosphorus loading in the Lake, and specifically, the north basin, and based on current and proposed operating practices at the hatchery, there is little potential for the hatchery's discharge of phosphorus to cause or contribute to water quality degradation. Therefore, pursuant to the TOGS 1.3.1, it is reasonable and appropriate to incorporate a technology based effluent limit for phosphorus into the draft renewal SPDES permit.

There is no adjudicable issue raised with respect to the application of both water quality based effluent limits and technology based effluent limits to the parameters proposed to be regulated in the draft renewal SPDES permit for the hatchery.

Alternative Technologies - USLA maintains that the Applicant has failed to adequately consider alternative technology for phosphorus removal from its effluent discharge. Specifically, USLA alleges that the Applicant rejected "out of hand" any consideration for implementation of a "Rapid Sediment Removal System" ("RSRS" or "Fuss System") designed, marketed and promoted by Joseph T. Fuss as a means of dramatically and relatively inexpensively reducing phosphorus discharges from fish hatcheries.

The only known location where the RSRS is installed is at the Platte River Fish Hatchery operated by the State of Michigan Department of Natural Resources. The Applicant did, in fact, analyze the Fuss System and considered the efficacy of installing such a system at the Adirondack Fish Hatchery. The Applicant first viewed a videotape of the RSRS as installed at Platte River. Then, in 1997, the Superintendent of Fish Culture and an Environmental Engineer in the DEC Division of Water traveled to Michigan and spent two days at the Platte River Hatchery observing the Fuss System in operation. Following a thorough evaluation of Fuss System, including a written report which was distributed to the USLA and Mr. Fuss (who responded to it), the Applicant concluded that such a system, as designed by Mr. Fuss for the Adirondack Hatchery, would impose significant operational burdens on the hatchery and staff, while providing little or no demonstrable benefit to the water quality in Upper Saranac Lake.

As to other alternatives which may be employed to reduce phosphorus in the hatchery's effluent discharges, the hatchery staff has already increased the frequency with which they clean the wastewater settling basins, thus reducing the time during which available phosphorus can leach into the water column. The hatchery staff is also exploring the use of chemicals to reduce the release of phosphorus from the sludge in the wastewater treatment system.

Fish are now fed by hand, rather than via an automated feeding system, thus minimizing wasted food. While phosphorus is a necessary and essential dietary nutrient for fish, recent research and experimentation has shown that the amount of dietary phosphorus can be reduced in commercial fish food without adversely affecting fish growth or health. Low phosphorus (approximately 0.9% to 1.0%) fish food diets are commercially available and in common use in New York's fish hatchery system. An ultra low phosphorus (0.65%) fish food was used on an experimental basis at the Adirondack Hatchery in the fall of 1998. This is one of the lowest phosphorus fish foods developed to date for Atlantic salmon. While preliminary observations of the use of this ultra low phosphorus feed were favorable, the final results have yet to be tallied. If these results are satisfactory, continued use of this feed could lead to further substantial reductions in the net phosphorus in the hatchery's effluent discharge.

The phosphorus content of the hatchery influent water is also regulated. The major source of water for the hatchery is Little Clear Pond, the waters of which contain varying amounts of phosphorus, with the epilimnion (shallower, near-surface) water having less phosphorus, but being warmer in temperature. The hypolimnion (deeper, near-bottom) water has greater amounts of phosphorus, but is cooler in temperature. The hatchery employs a relatively sophisticated system of piping and valves to precisely blend influent waters from the epilimnion and hypolimnion in Little Clear Pond to regulate the temperature of the water flowing through the hatchery, while minimizing the quantity of phosphorus-rich water withdrawn from the hypolimnion.

All these various alternative measures are utilized to ensure that the hatchery is able to meet its discharge effluent limitations for all the required SPDES permit parameters, but especially for phosphorus. The record before me illustrates that the implementation of these measures has been instrumental in reducing phosphorus discharges into the Upper Saranac Lake watershed from over 500 pounds per year in the mid-1980's to 86 pounds during all of 1998.

Furthermore, I am convinced by the representations of the Applicant that the hatchery staff will continue to explore, evaluate and implement, when feasible, various additional alternatives which may become available to ratchet down the level of phosphorus in the hatchery's effluent discharges. I would encourage the Applicant to vigorously pursue such opportunities when they are available, and note that as a condition of the draft renewal SPDES permit, the Applicant must continue implementation of the Best Management Practices ("BMP") plan to minimize the release of all potential sources of pollution in its discharges. The draft permit incorporates an annual reporting requirement to summarize BMP activities during the preceding year.

The Applicant has done a great deal in the last decade to reduce phosphorus discharges from the hatchery. There is no indication that the Applicant will be unable to meet the effluent limitations for net phosphorus in the proposed renewal SPDES permit. It is up to this Applicant, as it is with any SPDES permit holder in New York State, to decide how and by what methods compliance with the permit conditions can be assured. As long as whatever alternative measures the Applicant implements do not cause the phosphorus levels in the effluent discharges to increase and cause non-compliance with the permit conditions, there is no adjudicable issue regarding the Applicant's consideration of alternative methodologies or operational procedures to limit phosphorus discharges.

Summary Discussion

USLA alleges that the Department, as operator of the hatchery, pumped "raw nutrient sediment-rich water" from the hatchery into Little Clear Pond Outlet in the course of the reconstruction of the hatchery in the fall of 1989. USLA maintains that Little Clear Pond Outlet subsequently exhibited signs of degradation "clearly associated with excess nutrient enrichment from this event." USLA further contends that the algae blooms in Upper Saranac Lake in the early 1990's were directly related to the Fall 1989 discharge from the hatchery, as well as to the long-term contribution of nutrient-rich effluent into the Upper Saranac Lake watershed through the continued operation of the facility.

The record before me contains anecdotal evidence that improvements have occurred in recent years in the observable quality of Little Clear Pond Outlet. During the site visit to the hatchery on September 23, 1998, participants observed clear, non-turbid water in the Outlet, with no evidence of offensive odors. At least one participant, the representative of Trout Unlimited, observed numerous fish in the Outlet, including several salmonids between four and seven inches in length. On October 6, 1998, a DEC Bureau of Fisheries electrofishing survey of "Hatchery Brook" - Little Clear Pond Outlet, immediately below the hatchery's effluent discharge point, resulted in sampling a variety of fish, including Atlantic salmon fingerlings. The main stream of the channel was relatively firm sand, interspersed with patches of gravel, whereas the low flow areas on the periphery of the stream were comprised of inorganic fines generally stabilized by a dense covering of Elodea vegetation, an aquatic plant which commonly occurs in Adirondack waters. Further downstream, near the confluence with Mill Brook - Lake Clear Outlet, the general observations were similar, although fish were fewer in number, but with nearly same diversity of species. An earlier survey of the Outlet in November 1994 resulted in similar observations of vegetation and substrate, and also in the capture of nine Atlantic salmon, one brown trout and one brook trout.

It is clear from the filings and briefing papers in this matter, as well as from the court proceeding in the matter of USLA, et al. v. NYSDEC, that USLA is seeking a convenient hook on which to hang blame for water quality problems in Upper Saranac Lake. USLA claims in these documents that the fish hatchery is the largest controllable source of phosphorus in the Upper Saranac Lake watershed. Yet, the Lake Report states, "Overall, the hatchery is a relatively small contributor to the phosphorus 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."(19) Based upon the most recent available data, it appears that the hatchery phosphorus discharge may, in fact, represent only approximately one-half these respective contributions to the Lake's phosphorus budget reported in the Lake Report. Furthermore, the Lake Report does not draw any conclusions regarding any impacts on the Lake's water quality from the hatchery's phosphorus contribution.

As a principal participant in the jointly prepared Lake Report, through its consultant Adirondack Aquatic Institute of Paul Smiths College, USLA had the opportunity to contest various statements in the Lake Report or to provide a dissenting view regarding the relative impacts to the Lake's water quality and the sources of those impacts. Tellingly, USLA did not do so.

Historically, the Department and its predecessor agencies which have now operated the Adirondack Fish Culture Station for 115 years are not blameless. Any reasonable person can conclude that repeated annual discharges of phosphorus in the hatchery effluent, in quantities in the hundreds of pounds for the past 40 to 50 years, have undoubtedly done nothing to enhance the water quality of Upper Saranac Lake. However, with the significant reduction in the quantities of phosphorus in the hatchery's discharges in recent years, the relative impact on the Lake's water quality caused by the effluent discharges from the hatchery is considerably diminished. It is anticipated that the hatchery will avail itself of all feasible opportunities to further reduce the level of phosphorus in its discharges for the foreseeable future.

However, the effluent discharge from the hatchery is only one of several sources of phosphorus available to the Lake. During the same 40 to 50 year time frame, shoreline residential development in proximity to the Lake's waters has continued apace. The installation of on-site septic systems in poor soils, with relatively high groundwater and shallow bedrock, provides a ready avenue for phosphorus to add to the nutrient loading of the Lake. Significant contributions also come from tributaries other than Little Clear Pond Outlet/Mill Brook, from atmospheric deposition, from other point sources, from groundwater discharges, and to a lesser extent, from the release and resuspension from bottom sediments. While there is evidence of improvement in the overall water quality of Upper Saranac Lake in the past decade, as attested to by the Lake Report and by some of the statements in the offers of proof submitted by USLA, to the extent that human intervention can play a role in reducing the impact on the Lake's water quality by controlling influents to the Lake primarily from on-site septic systems and other point sources, I would encourage that such actions should be taken at an early opportunity.

Through its filing, briefs and offers of proof, the USLA has raised several potential issues. These issues, as shown above, do not rise to the level which warrants adjudication. In fact, many of the arguments which USLA has made in support of its positionare specious, speculative and not based upon fact or law. There is no demonstration that the Applicant will not be able to satisfy the proposed SPDES permit conditions, nor is there any showing that the proposed renewal permit is any less protective of the environment than the preceding permit. No issue has been raised that has the potential to result in the denial of a permit, in a major modification to the proposed project or in the imposition of significant permit conditions in addition to those proposed in the draft permit.

It is a well founded principle that if an applicant can demonstrate that it can satisfy all the statutory and regulatory requirements attached to a particular permit, then the applicant is entitled to receive the requested permit. In this case, the Superintendent of Fish Culture is entitled to renewal of the SPDES permit for the Adirondack Fish Culture Station in Santa Clara, Franklin County, New York. This matter is thus remanded to the Department's Region 5 Environmental Permits Staff to complete the SEQRA process as necessary and issue the requested renewal SPDES permit for the hatchery.

Ruling on Party Status

Pursuant to 6 NYCRR §624.5(a), the Applicant and the assigned Department Staff are automatically full parties to the proceeding. The other above listed participants, except for the New York State Conservation Council, Inc., have applied for full party status to participate in any adjudicatory hearing which may be held in this matter. NYSCC seeks amicus status.

As detailed above, there have been no issues raised which meet the standards set forth in the Department's Permit Hearing Procedures, 6 NYCRR Part 624, for adjudication. In conjunction with the above rulings, therefore, I am denying all requests for party status in the instant matter.

Appeals

Pursuant to 6 NYCRR §§624.6(e) and 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within ten days of receipt of the Rulings. I am extending this time period in view of the pending school spring vacations.

Any appeals must be received at the office of Commissioner of Environmental Conservation (NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-5500) no later than April 30, 1999. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than May 14, 1999.

The parties shall ensure transmission of all appeal initial and response papers to me and all others on the enclosed amended Service List at the same time and in the same manner as transmission is made to the Commissioner.

For the New York State Department
of Environmental Conservation

/s/
ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE

Dated: Albany, New York
April 7, 1999

To: Service List

  1. See "The State of Upper Saranac Lake, NY", February 1998, Prepared for the United States Environmental Protection Agency under Section 314 of the Federal Clean Water Act, by Adirondack Aquatic Institute at Paul Smiths College, Biological Survey at the New York State Museum, Darrin Fresh Water Institute at Rensselaer Polytechnic Institute and New York State Department of Environmental Conservation, received as Exhibit 10G in evidence, in the instant case. This study of the Lake is hereinafter referred to as the "Lake Report."
  2. The 1987 Amendments to the Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA") include an "anti-backsliding" provision, which means that a reissued or a renewed water pollution control (denominated "SPDES" for State Pollutant Discharge Elimination System in New York State parlance) permit may be no more lenient than the prior permit, thus backsliding from the goals of the Clean Water Act, unless the permitting authority can demonstrate that the backsliding is justified by material and substantial changes in circumstances or by new data. 33 USCA §§1313(d) and 1342(o). To conform to federal law, New York adopted this provision in 1988. ECL §17-0809(3).
  3. The Courts in New York State are typically loath to insert themselves into highly technical matters until petitioners have exhausted all their administrative remedies before the deciding State agency. If, upon release of the agency decision, the petitioners are still aggrieved or are dissatisfied with the final determination, they may seek appropriate judicial relief through the Court system, pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR").
  4. See Glen Bruening, Esq., Affidavit in Support of Respondent's Motion to Remand Proceeding, ¶¶ 28 - 30 on pp. 12 & 13, July 29, 1993, in the matter of USLA, et al. v. NYSDEC, Index 93-48, received as part of Exhibit 12 in evidence, in the instant case.
  5. See The SEQR Handbook, p. 36, November 1992, Division of Regulatory Affairs (now Division of Environmental Permits), New York State Department of Environmental Conservation.
  6. Ibid, p. 38.
  7. Ibid, p. 38.
  8. See SEQR Negative Declaration attached to Bruening affidavit, as in Footnote 3 above.
  9. See The SEQR Handbook, p. 46.
  10. The best usages of Class AA fresh surface waters are: a source of water supply for drinking, culinary or food processing purposes; primary and secondary contact recreation; and fishing. The waters shall be suitable for fish and fish propagation. [6 NYCRR §701.5(a)] The symbol (T) after any class designation shall mean that the designated waters are trout waters and that the dissolved oxygen specification for trout waters shall apply thereto. [6 NYCRR §830.2(b)].
  11. The permit requires that samples shall be collected from the influent to the facility and from the effluent of the wastewater treatment system, at specified locations.
  12. The 30 Day Rolling Average shall be calculated by averaging the reporting period's phosphorus quantity discharged in lbs/day with the previous 3 weeks phosphorus quantity discharged in lbs/day.
  13. The 12 Month Rolling Average shall be calculated by averaging the reporting period's phosphorus quantity discharged in lbs/day with the previous 11 months quantity discharged in lbs/day.
  14. The natural aging process in all lakes, known as eutrophication, is a progression from nutrient-poor to nutrient-rich conditions, accompanied by a slow filling in of the basin with accumulated materials. The sequence of succession through a series of trophic phases usually progresses from:
    • Oligotrophy -- nutrient poor, biologically unproductive; to
    • Mesotrophy -- intermediate nutrient availability and biological productivity; to
    • Eutrophy -- nutrient rich, highly productive; to
    • Hypereutrophy -- extreme conditions of the eutrophic phase.
    • Source: The Lake Report, p. 221.
  15. Ibid, p. 238.
  16. Ibid, p. 222.
  17. Ibid, p. 236.
  18. Ibid, p. 222.
  19. Ibid, p. 218.
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