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Ridgehaven Estates Ltd. - Report of ALJ, February 9, 1996

Report of ALJ, February 9, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Application Report of Administrative of RIDGEHAVEN ESTATES LTD. for a Law Judge Pursuant to State Pollution Discharge Elimination 6 NYCRR 621.8 System permit pursuant to Article 17 NYSDEC of the Environmental Conservation Law

Application # 1-4722-00887/00002-0

Summary

This report reflects the results of the combined efforts of Staff, the applicant, Ridgehaven Estates Ltd. ("Ridgehaven") and Suffolk County Department of Public Works personnel to reach a resolution in the above mentioned matter. This matter was referred to hearing by staff in June 1995 because the applicant had not met the regulatory requirements for a SPDES permit resulting in staff's denial of the permit application. The applicant requested a hearing to contest the denial, however, due to the lack of adjudicable issues, the parties agreed that the invocation of 6 NYCRR 621.8 settlement conference procedures was appropriate. The parties met twice with the administrative law judge as well as participated in a conference call. In addition, the parties held a technical meeting, engaged in discussions and exchanged correspondence as part of their effort to arrive at a consensus. I am pleased to report that based upon the hard work of all those involved, a settlement was reached regarding the permitting issue as well as the enforcement matter that arose in this context.

Background

In June 1995, staff referred this matter to the Office Hearing with respect to the application of Ridgehaven Sewer Facility, Ltd. for a SPDES permit. This facility, which was permitted almost 20 years ago, serves a residential development in Coram, New York. The facility's permit expired in 1985 and the applicant failed to make a timely application for a permit renewal resulting in the need for a new permit. In the interim, by Order on Consent dated November 14, 1990, the parties agreed to have the plant operate, requiring, inter alia, that the facility apply for and obtain a permit. The Order also provided that in the event the facility was denied a permit, the Order would no longer provide authority for Ridgehaven to operate.

Pursuant to 6 NYCRR 752.1(f), to obtain a permit, the applicant must demonstrate that there is a sewage disposal corporation formed or apply for a variance. Ridgehaven and its attorney, Eugene Wishod, had been communicating with Region 1 staff for 5 years regarding their intentions to have Suffolk County Department of Public Works ("County") take over this facility. The County confirmed those intentions, and DEC was amenable to the use of a Sewer Use Sewage Treatment Plant Agreement to meet the requirements of 752.1(f). However, just as the County Legislature was to vote on the resolution to form the necessary sewer district, the County decided to join another sewage treatment plant to form one district including Ridgehaven. As a result, the matter was again delayed and the Staff decided, based upon the lengthy of period that had expired, to deny the permit application, prompting the applicant to request a hearing.

The parties agreed that there did not appear to be any factual issues to resolve at a hearing and instead we convened a settlement conference pursuant to 6 NYCRR 621.8. The applicant agreed to a suspension of the UPA timeframes based upon this approach.

Settlement - Permit Matters

The first meeting was held in the offices of the County DPW on July 12, 1995. The staff and Ridgehaven with the cooperation of Suffolk County DPW agreed that an Acquisition & Construction Agreement entered into with the County would be sufficient to satisfy the requirements of 752.1(f). The staff agreed that its terms would provide sufficient financial security to ensure the proper operation of the plant pending takeover by the County. This agreement also included requirements for Ridgehaven to address certain deficiencies at the facility. During these discussions, the County also provided a timeframe for the procedures leading up to and including its takeover of the facility.

Enforcement Issues

The Construction & Acquisition Agreement appeared that it would resolve the permitting issue, however, the staff decided that in order to process the permit application at this stage, Ridgehaven would have to enter into an Order on Consent and pay certain penalties based upon its delay in getting the permit (in violation of the previous order) and its failure to operate the treatment plant in compliance with nitrogen levels on 33 occasions.

At first it seemed there was an impasse because the applicant felt the compliance issue was not a matter that had previously been brought to its attention in the context of these proceedings. In addition, Ridgehaven maintained that its failure to meet 752.1(f) was not due to its own failings but rather due to Suffolk County's delay. Moreover, Ridgehaven's counsel claimed that Suffolk County will not authorize the establishment of a transportation corporation and thus, it could not pursue that route.

The parties agreed to meet a second time after a period that allowed for exchange of information including a draft consent order and a disclosure of the applicant's income derived from sewer use fees. Because the settlement of this issue was integral to the resolution of the permitting matter it was appropriate to proceed in this manner. The parties expressed willingness to have the ALJ continue to be involved in these discussions despite the transition from permit to enforcement proceeding. On October 17, 1995, the parties met for a second time with the participation of the ALJ in the DPW offices.

The discussions with respect to the enforcement matter focused largely on the propriety of a penalty and/or a suspended penalty. The staff presented their calculations to support the penalty requested. Ridgehaven claimed that it could not afford payable or stipulated penalties because the sewer user fees were inadequate to pay for operation of the facility and cover these additional expenses. However, the involved County staff agreed to support Ridgehaven's application to the County Legislature for an increase in its fees thus resolving this issue. In turn, DEC agreed to schedule the payment of penalties contingent on this expected raise. The meeting was followed by a period of further letter exchanges regarding the penalty provisions. Based upon these discussions, the staff and Ridgehaven were able to agree on an appropriate penalty.

Conclusion

The parties reduced their agreement to an Order on Consent dated January 30, 1996 that, among other terms, requires Ridgehaven to resubmit its permit application. Based upon this agreement, the settlement conference is closed.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: February 9, 1996

TO: Ray Cowen,
Regional Director
Louise Aja,
Assistant Regional Attorney
New York State Department of
Environmental Conservation
Region 1
Building 40 - SUNY
Stony Brook, New York 11790-2356

Frederick Eisenbud, Esq.
Eugene Wishod, Esq.
Cahn Wishod & Lamb, LLP
534 Broadhollow Road
CS 9034
Melville, New York 11747-9034

Leonard Pilzer, Assistant County Attorney
Suffolk County Department of Law
Building 158 - North County Complex
Veterans Memorial Highway
Hauppauge, New York 11788

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