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Riverhead, Town of - Ruling, April 10, 2000

Ruling, April 10, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
Alleged Violations of Articles 17 and 71 of the Environmental Conservation Law and Part 750 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

The TOWN OF RIVERHEAD,
Respondent

RULING File No. R1-2000-0112-5

April 10, 2000

This is to confirm the ruling which I made on the record at the hearing on April 5, 2000, granting the petition to intervene which had been filed by the Peconic BayKeeper.

The Complaint in this matter was issued on January 14, 2000. It alleges that the Respondent violated the State Pollutant Discharge Elimination System ("SPDES") permit of the Riverhead Sewer District Sewage Treatment Plant by exceeding various effluent limitations on dates in the period from November 1998 through and including November 1999 and by a discharge of unchlorinated sewage on December 20 and 21, 1999. The Complaint sought as relief an order prohibiting further violations and requiring compliance with a schedule for improving facility operation, and an administrative penalty in the amount of $100,000.

The Notice of Hearing which accompanied the Complaint set February 16, 2000 as the date for a pre-hearing conference and calendar call in this matter. On February 10, 2000, the Peconic BayKeeper submitted a motion to intervene in this matter pursuant to 6 NYCRR Section 622.10(f). At the conference on February 16, 2000, a schedule was established for further correspondence regarding this petition. The Peconic BayKeeper submitted a supplemental statement on February 22, 2000. The Respondent and the Department Staff both submitted letters opposing the petition, on March 15, 2000 and March 17, 2000, respectively. Counsel for the BayKeeper submitted a response on March 28, 2000.

After reviewing this correspondence and 6 NYCRR Part 622, I made a ruling on April 5, 2000 which granted the petition.

6 NYCRR §622.10(f) requires that a petition to intervene as a party in a Department of Environmental Conservation enforcement hearing must state with preciseness and particularity the petitioner's relationship to the matters involved, the nature of the material the petitioner intends to present in evidence, the nature of the argument the petitioner intends to make and any other reason that the petitioner should be allowed to intervene. Intervention will only be granted where it is demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested and that those rights cannot be adequately represented by the parties to the hearing.

The correspondence submitted by the BayKeeper identified the BayKeeper's role with regard to the natural resources of Peconic Bay and the resource-based aspects of the local economy. The correspondence also identified intended evidence and argument including water quality data, information on the water quality's impacts on the estuary's habitat and natural resources including shellfish populations, and data about economic impacts on the baymen due to alleged habitat decline and due to the December 20 and 21, 1999 events.

The correspondence submitted by the BayKeeper proposed that the Town of Riverhead be required to commit to a $10,000 shellfish restocking effort. In support of the petition, the BayKeeper submitted a letter from the Southampton Town Baymen's Association which stated that the December, 1999 event caused the baymen to be unable to clam in the area of Reeves Bay and to lose large amounts of income. The BayKeeper also argued that if the matter is not resolved as he proposes, this will irreparably damage his ability to gain cooperation of baymen and other water-related industries in improving their practices so as to limit pollution.

The Department Staff's letter argued that if the matter does not settle, there is no legal recourse under Environmental Conservation Law ("ECL") §71-1929 for obtaining a restocking effort, that the BayKeeper has no legal entitlement to this, and that restitution for the baymen must be taken up in civil court. The Department Staff identified the possibility that an environmental benefit project such as restocking might be part of a settlement, but also called into question whether an environmental benefit project would be approved under the "stringent" guidelines for these. The Department Staff's letter also identified the "legitimate settlement goals" as being the same as what is sought in the complaint, i.e., immediate permit compliance and commensurate penalties. This suggests that the Department Staff, even in the context of settlement discussions between Staff and the Respondent, would not be likely to adequately represent the BayKeeper's interest in re-stocking of shellfish.

Although I did not discuss the three additional comments below at the hearing, I would add, first, that the Department Staff's statement that restitution for the baymen must be taken up in civil court suggests that the baymen do have a private right which may have been affected by the alleged violations. Second, the parties correspondence did not address whether (and if so, how) the provisions of ECL §71-1929.2 would apply in this case. This section provides that when a violation to which §71-1929 is applicable causes killing of fish or shellfish, the penalty shall be credited to the conservation fund and shall be available for the uses and purposes of such fund (see ECL §71-1929.2 for full text of this provision; also State Finance Law §83). Based on the information in the record at present, it appears that this may provide, even if indirectly, for remedial actions with regard to natural resources in certain cases involving violations of SPDES permits. Argument by the parties regarding the applicability of this section, to be made at some future stage of the hearing process, might clarify this question.

Third, the Respondent's letter of March 15, 2000, argued that 6 NYCRR §622.10(f) is ultra vires and unconstitutional. This is not an issue which would be ruled on in an administrative hearing. The regulation is a final agency determination and would not be reviewed in a hearing before the agency.

The ruling which I made on April 5, 2000 is not appealable on an expedited basis as of right under Part 622, but leave to file an expedited appeal may be requested from the Commissioner (§622.10(d)). The time period within which a party may appeal the present ruling will start upon their receipt of this written ruling, rather than starting on April 5, 2000.

At the hearing on April 5, 2000, I requested that a copy of the existing permit for the facility be provided for the record, particularly if there is an appeal of this ruling, since the Respondent made reference to provisions of the permit in its correspondence opposing the motion to intervene.

The hearing was adjourned to a conference telephone call which is scheduled to take place at 10:00 A.M. on Tuesday, May 2, 2000. The call will be placed from the Office of Hearings and Mediation Services.

The hearing file does not include any Answer from the Respondent. I do not know whether an Answer was sent by the Respondent to the Department Staff. If so, I am requesting that the Department Staff provide a copy of the Answer for the hearing record.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge
Albany, New York

Dated: April 10, 2000

TO: Louise M. Aja, Esq.
Frank A. Isler, Esq.
Kevin S. Law, Esq.

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